Filed 11/20/13 Ruiz v. Gardens CA2/2 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION TWO 

RENE RUIZ, 

 Plaintiff and Appellant, 

 v. 

CITY OF BELL GARDENS, 

 Defendant and Respondent. 

 B244395 

 (Los Angeles County 

 Super. Ct. No. BS132638) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. James 

C. Chalfant, Judge. Affirmed. 

 Law Office of Michael A. Morguess and Michael A. Morguess for Plaintiff and 

Appellant. 

 Liebert Cassidy Whitmore, Richard M. Kreisler and T. Oliver Yee for Defendant 

and Respondent. 
2 

 Appellant Rene Ruiz (Ruiz) is a former police officer who challenges the 

termination of his employment with respondent City of Bell Gardens (City) after a 

hearing officer sustained multiple charges against him for misconduct and for violation of 

City policies. The trial court initially denied Ruiz’s petition for administrative 

mandamus, after finding that the evidence supporting a charge of dishonesty had been 

obtained in violation of the Public Safety Officers Procedural Bill of Rights Act (Gov. 

Code, § 3300 et seq.)1 (PBRA), but upholding the remaining charges, as well as the 

penalty of termination. Ruiz then filed a motion for reconsideration. The trial court 

granted that motion and entered a judgment granting in part and denying in part Ruiz’s 

petition for writ of mandate. The judgment remanded the matter to the City to amend its 

decision in a manner consistent with the trial court’s ruling that the dishonesty charge 

was unsupported by the evidence and otherwise denied the petition for writ of mandate. 

We affirm the judgment. 

BACKGROUND 

 Ruiz was employed by the City’s police department (the Department) from 

February 2003 to August 11, 2009. His last assignment was as a detective in the 

Department’s Special Investigations Unit (SIU), and his responsibilities included 

investigating gang-related crimes. 

 Ruiz’s prior disciplinary record included a suspension without pay in 2004 for an 

incident that occurred in the Bicycle Casino Club. Ruiz had covered a video camera in 

the casino’s security office while another officer used force against a handcuffed female. 

Ruiz not only attempted to cover the camera, he also failed to notify a supervisor and to 

document the use of force. 

Internal affairs investigation No. 08-06 (IA No. 08-06) 

 The Department’s investigation of Ruiz was prompted by several events. In 

December 2007, then Chief of Police Keith Kilmer received an anonymous letter alleging 

that Ruiz was having an affair with a “homegirl” who was subsequently revealed to be 

 1 All further statutory references are to the Government Code unless otherwise 

indicated. 
3 

Graciella Lagunas (Lagunas). Lagunas’s three brothers were notorious members of the 

Bell Gardens Locos street gang. The author of the letter further alleged that Ruiz was 

disclosing information about law enforcement activities to Lagunas and to members of 

the Bell Gardens Locos gang. During the summer of 2008, Chief Kilmer learned that 

Ruiz had arrested Lagunas on a felony weapons charge, but the charges had subsequently 

been reduced to a misdemeanor for resisting arrest. In November 2008, Chief Kilmer 

instructed Lieutenant Jeffery Travis to obtain copies of Lagunas’s arrest report and Ruiz’s 

testimony at Lagunas’s June 27, 2008 preliminary hearing. 

 On November 26, 2008, Lieutenant Travis served Ruiz with written notice that he 

was being put on paid administrative leave pending the Department’s IA No. 08-06 

regarding an incident on June 27, 2008. Although the written notice given to Ruiz did 

not disclose the subject of the Department’s investigation, IA No. 08-06 involved an 

investigation into Ruiz’s relationship with Lagunas and his testimony at Lagunas’s June 

27, 2008 preliminary hearing. 

 The written notice given to Ruiz advised him that certain orders governed his paid 

administrative leave status. Two of those orders, order No. 5 and order No. 7, are 

relevant to this appeal. Order No. 5 states: “You are prohibited from entering any part of 

any City facility which is not open to the general public.” Order No. 7 states: “You are 

prohibited from discussing any aspect of [IA] No. 08-06 with any employee of the [City] 

(subject to a singular exception applicable to any one individual that may have been 

designated by you as a representative in these proceedings).” The notice further advised 

Ruiz that failure to comply with any of the orders contained in the notice “shall in and of 

itself result in a disciplinable act of insubordination.” 

 On November 26, 2008, the same day he was served with the notice of paid 

administrative leave, Ruiz arranged a meeting with Detective Angel Puente and Sergeant 

Ruben Musquiz at a Denny’s restaurant parking lot. Sergeant Musquiz was Ruiz’s 

immediate supervisor in the SIU’s gang division. Detective Puente was president of the 

Bell Gardens Police Officers Association and Ruiz’s colleague in the SIU. Before going 

to the Denny’s parking lot, Ruiz asked Detective Puente if he would serve as Ruiz’s 
4 

union representative, and Detective Puente agreed. While in the Denny’s parking lot, 

Detective Puente contacted a law firm and obtained a verbal commitment from an 

attorney at that firm to represent Ruiz in connection with the Department’s investigation. 

 In the Denny’s parking lot, Ruiz asked Sergeant Musquiz and Detective Puente if 

they knew why he was being investigated. Lagunas’s name came up during the 

conversation. Ruiz specifically mentioned Lagunas and said he had met with her at times 

when he was not on duty. 

 On November 27, 2008, the day after being served with the notice of paid 

administrative leave, Ruiz had a telephone conversation with Detective Mark Cobian. 

Detective Cobian told Ruiz about information he had received from a confidential 

informant regarding Lagunas. According to the informant, Lagunas had recently been 

interviewed by two police officers named Dow and Travis. Ruiz later admitted that at the 

time of his telephone conversation with Detective Cobian, he knew that IA No. 08-06 

concerned Lagunas and that discussing her with Detective Cobian was improper. 

 On November 28, 2008, Ruiz telephoned Officer Rigo Barrios, his former partner 

in the SIU’s gang unit. During their conversation, Ruiz mentioned Lagunas and asked 

Officer Barrios whether he remembered meeting Lagunas while Ruiz was present. 

Because Officer Barrios believed that Lagunas had something to do with Ruiz’s 

investigation, he told Ruiz that he did not want to discuss her. Ruiz later admitted that at 

the time of his conversation with Officer Barrios, he knew that IA No. 08-06 concerned 

Lagunas, and that his questions about Lagunas were improper. 

 Also on November 28, 2008, Ruiz telephoned Detective Puente and asked him to 

accompany Ruiz to the police station because he wanted to obtain arrest reports and 

telephone records related to Lagunas. When Detective Puente said he was unable to do 

so because of work commitments, Ruiz arranged for Sergeant Musquiz to take him to the 

SIU trailer later that day. Ruiz asked Sergeant Musquiz to meet him at a nearby Denny’s. 

Sergeant Musquiz picked up Ruiz at the Denny’s parking lot and drove him to the police 

station. Ruiz and Sergeant Musquiz arrived at the SIU trailer, which was locked and 

unoccupied, at approximately 10:00 p.m. Upon entering the trailer, Ruiz asked Sergeant 
5 

Musquiz to research a particular date on the Department’s computer. Before Sergeant 

Musquiz could do so, Lieutenant Travis and Chief Kilmer entered the trailer. Lieutenant 

Travis asked Ruiz what he was doing there, and Ruiz responded that he was retrieving 

some personal items. When Lieutenant Travis asked Ruiz where his personal vehicle was 

parked, Ruiz responded that it was parked “up the street.” Lieutenant Travis then asked 

Ruiz how he had gotten to the trailer, and Ruiz said he had walked. Ruiz later admitted 

he had lied to Lieutenant Travis because he wanted to protect Sergeant Musquiz. 

Internal affairs investigation No. 08-07 (IA No. 08-07) 

 IA No. 08-07 involved an investigation into Ruiz’s inappropriate use of his 

Department issued email account and cellular telephone to transmit non-business 

pornographic photographs and email messages. The investigation commenced after the 

Department examined Ruiz’s computer account and email messages when closing Ruiz’s 

account pending the investigation of IA No. 08-06. 

 The Department’s investigation revealed that between November 9, 2006 and 

August 8, 2007, Ruiz had used his Department email account to exchange pornographic 

photographs and sexually explicit emails with Tommie Gonzalez, a female citizen. The 

investigation also showed that between November 15, 2007 and October 18, 2008, Ruiz 

used his Department issued cellular telephone to make 35 non-police related telephone 

calls to Gonzalez while on duty. Finally, the investigation showed that on March 1, 2008 

and November 17, 2008, Ruiz used his Department issued cell phone to send photographs 

of a female’s partially exposed breasts to his Department email account. Ruiz admitted 

to having committed these incidents of misconduct. 

Termination of Ruiz’s employment and administrative appeal 

 The City terminated Ruiz’s employment effective August 13, 2009. Ruiz 

appealed his termination, and an administrative hearing was held before the assistant city 

manager acting as a hearing officer. 

 At the outset of the hearing, the City’s attorney asked that various witness 

interview summaries, including a summary of the Department’s investigative interview 

of Detective Puente, be marked and admitted into evidence. The hearing officer asked 
6 

Ruiz’s counsel if he had any objection, and Ruiz’s counsel responded “No objection.” 

The hearing officer thereafter admitted the interview summaries into evidence as the 

City’s exhibit 9. 

 Detective Puente testified at the administrative hearing. During Detective 

Puente’s testimony, Ruiz’s counsel asked that any communication between Ruiz and 

Detective Puente be excluded from the record, including Ruiz’s November 28, 2008 

telephone conversation with Detective Puente before entering the SIU trailer. Counsel 

for the City pointed out that no prior objection had been made and that all evidence 

received prior to the objection by Ruiz’s counsel was admissible as evidence on the 

record. 

 The hearing officer ruled that the communications between Detective Puente and 

Ruiz on November 26, 2008, in the Denny’s parking lot were not privileged because they 

took place in the presence of Sergeant Musquiz, a third party. The hearing officer also 

ruled that no privilege attached to the November 28, 2008 conversation between 

Detective Puente and Ruiz about entering the SIU trailer because Detective Puente was 

not Ruiz’s employee representative at that time. The hearing officer concluded that any 

employee representative relationship between Detective Puente and Ruiz terminated 

when Ruiz obtained representation by legal counsel. The hearing officer noted that 

Detective Puente was not present during the Department’s investigative interviews of 

Ruiz, nor was he present during any meeting between Ruiz and the Department’s 

management to discuss Ruiz’s termination.2

 At the conclusion of the hearing, the hearing officer prepared a written decision 

sustaining the allegations that Ruiz violated order No. 5 of IA No. 08-06 prohibiting him 

from entering any part of any City facility not open to the public. The hearing officer 

found that Ruiz’s reasons for entering the SIU trailer were not credible. Ruiz’s assertion 

that he thought his presence in the trailer had been authorized by his supervisor, Sergeant 

Musquiz, lacked merit because he had initially asked Detective Puente, a peer and not a 

 2 Such a meeting is commonly called a Skelly hearing, after Skelly v. State 

Personnel Board (1975) 15 Cal.3d 194. 
7 

supervisor, to accompany him to the trailer. The hearing officer further found that Ruiz’s 

stated reason for being in the trailer to retrieve personal belongings lacked credibility 

because his first act upon entering the trailer was not to gather his personal belongings 

but rather to ask Sergeant Musquiz to research information related to Lagunas on the 

Department computer. The hearing officer found that Ruiz was dishonest when he told 

Lieutenant Travis and Chief Kilmer that his reason for entering the trailer was to retrieve 

personal items, and that he had walked to the SIU trailer in response to Lieutenant 

Travis’s question as to how Ruiz had arrived at the trailer. 

 The hearing officer also sustained the allegations that Ruiz violated order No. 7 of 

IA No. 08-06 prohibiting him from discussing any aspect of the investigation with any 

City employee except his designated representative. The hearing officer found that 

Ruiz’s discussions with Sergeant Musquiz and Detective Puente at the Denny’s parking 

lot on November 26, 2008, his telephone conversation with Detective Cobian on 

November 28, 2008, and his telephone conversation with Officer Barrios on November 

28, 2008, all were in violation of order No. 7. 

 With regard to IA No. 08-07, the hearing officer found that based on Ruiz’s own 

admissions at the administrative hearing, Ruiz had improperly used his Department email 

account and cellular telephone to send and receive pornographic photographs and 

messages. 

 The hearing officer found just cause to terminate Ruiz’s employment and further 

found that the City’s decision to terminate Ruiz was not an abuse of discretion. 

Mandamus proceedings 

 Ruiz filed a petition for writ of mandate, alleging that the City’s decision to 

terminate his employment was not supported by the evidence and that the penalty of 

termination was excessive as a matter of law. Ruiz further argued that the Department’s 

summary of Detective Puente’s investigative interview should be suppressed because that 

interview violated Ruiz’s rights under section 3303, subdivision (i) of the PBRA by 

intruding on the confidentiality of his communications with his representative and by 

threatening punitive action against Detective Puente if he did not submit to the interview. 
8 

 The trial court denied Ruiz’s request to suppress statements made by Detective 

Puente during the Department’s investigative interview. The court concluded that 

Detective Puente’s role as Ruiz’s representative did not preclude the Department from 

interviewing Detective Puente about his own actions without violating any 

confidentiality. The trial court further concluded that Sergeant Musquiz’s presence 

during the conversations between Detective Puente and Ruiz at the Denny’s parking lot 

on November 26, 2008, precluded any claim of confidentiality with respect to those 

conversations. With regard to Ruiz’s conversation with Detective Puente about entering 

the SIU trailer on November 28, 2008, the trial court stated: 

“The conversation between [Detective] Puente and Ruiz concerning 

Ruiz’s reasons for going to the trailer--to pick up arrest and crime reports--

is different. If confidential, it should be suppressed. But the conversation 

did not concern historical information which would be subject to 

confidentiality under section 3303(i). Rather, the conversation was 

prospective in nature, concerning Ruiz’s motivation for going to the trailer 

that evening. Ruiz cannot hide ongoing or future misconduct by using his 

union representative to do so. Nothing in section 3303(i) permits that, and 

[Detective] Puente could be interviewed on that subject.” 

The trial court also noted that suppression of Detective Puente’s interview concerning 

Ruiz’s reasons for entering the SIU trailer would not affect the determination that Ruiz 

violated order No. 5. 

 The trial court found, however, that Ruiz’s statements in response to Lieutenant 

Travis’s questions in the SIU trailer on November 28, 2008, were taken in violation of 

the PBRA and should have been suppressed. On that basis, the court overturned the 

dishonesty charge. The court concluded, however, that the hearing officer’s remaining 

findings supported the decision to terminate Ruiz’s employment. The trial court 

accordingly denied Ruiz’s petition on May 3, 2012. 

 Ruiz filed a motion for reconsideration of the trial court’s May 3, 2012 decision 

denying the petition for writ of mandate. The trial court granted the motion for 

reconsideration and then granted in part and denied in part Ruiz’s petition for writ of 

mandate. The court issued a peremptory writ of mandamus remanding the matter to the 
9 

City to amend its December 22, 2012 decision to state that the evidence does not support 

the administrative charge and finding that Ruiz was dishonest to Lieutenant Travis and 

Chief Kilmer inside the SIU trailer on the evening of November 28, 2008. The trial court 

otherwise denied the petition for writ of mandate. 

 This appeal followed. 

DISCUSSION 

I. Standard of review 

 In a mandamus proceeding involving a fundamental vested right, such as the right 

of a city employee to continued employment (McMillen v. Civil Service Com. (1992) 6 

Cal.App.4th 125, 129), the trial court exercises its independent judgment to determine 

whether the agency’s findings are supported by the weight of the evidence. (Strumsky v. 

San Diego County Employees Ret. Ass’n (1974) 11 Cal.3d 28, 32; Kazensky v. City of 

Merced (1998) 65 Cal.App.4th 44, 51 (Kazensky).) An appellate court must sustain the 

trial court’s factual findings that are supported by substantial evidence, resolving all 

conflicts in favor of the prevailing party, and giving that party the benefit of every 

reasonable inference in support of the judgment. (Kazensky, at p. 52.) 

 “Judicial review of an agency’s assessment of a penalty is limited, and the 

agency’s determination will not be disturbed in mandamus proceedings unless there is an 

arbitrary, capricious or patently abusive exercise of discretion by the agency. [Citation.] 

‘Neither a trial court nor an appellate court is free to substitute its discretion for that of an 

administrative agency concerning the degree of punishment imposed. [Citations.]’ 

[Citation.] If reasonable minds may differ with regard to the propriety of the disciplinary 

action, no abuse of discretion has occurred. [Citation.] An appellate court conducts a 

de novo review of the trial court’s determination of the penalty assessed, giving no 

deference to the trial court’s determination. [Citation.]” (Flippin v. Los Angeles City Bd. 

of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 279.) 

II. The trial court properly declined to remand the entire matter 

 Ruiz contends the trial court should have remanded the entire matter back to the 

City after the court overturned the dishonesty charge based on Ruiz’s statements to 
10 

Lieutenant Travis and former Chief Kilmer inside the SIU trailer on November 28, 2008. 

The circumstances do not support returning the matter to the City. The City’s 

termination notice designates termination as the appropriate discipline for each of Ruiz’s 

several acts of misconduct and insubordination, including multiple violations of order 

No. 5 in IA No. 08-06 prohibiting Ruiz from discussing the investigation with any City 

employee, and for violation of order No. 7, prohibiting him from entering any City 

property not open to the public. The City thus exercised its discretion to impose the 

penalty of termination based not on the aggregate findings of violations by Ruiz, “but by 

segregating the findings as to the several charges and designating the penalty appropriate 

to each violation.” (Mast v. State Board of Optometry (1956) 139 Cal.App.2d 78, 92-93.) 

The hearing officer expressly found that each of Ruiz’s several violations of 

administrative order Nos. 5 and 7 warranted termination of Ruiz’s employment, and the 

trial court sustained those findings. The trial court did not err by declining to remand the 

matter to the City for reconsideration of the penalty. (Ibid.) 

III. Alleged PBRA violations 

 Ruiz contends Detective Puente’s statements made during the Department’s 

investigative interviews concerned confidential communications between Ruiz and his 

union representative that were improperly received by the City in violation of section 

3303, subdivision (i).3 Ruiz further contends the City obtained Detective Puente’s 

statements in violation of section 3303, subdivision (i) because the City threatened 

punitive action against Detective Puente in order to obtain privileged communications. 

 3 Section 3303, subdivision (i) provides: “Upon the filing of a formal written 

statement of charges, or whenever an interrogation focuses on matters that are likely to 

result in punitive action against any public safety officer, that officer, at his or her 

request, shall have the right to be represented by a representative of his or her choice who 

may be present at all times during the interrogation. The representative shall not be a 

person subject to the same investigation. The representative shall not be required to 

disclose, nor be subject to any punitive action for refusing to disclose, any information 

received from the officer under investigation for noncriminal matters.” 
11 

 The challenged statements are those Detective Puente made to investigating 

officers during interviews conducted on December 17, 2008 and February 11, 2009, and 

summarized in a witness interview report included as an exhibit to the Department’s 

investigative report on Ruiz. Ruiz did not make a timely objection to the admission of 

Detective Puente’s interview report in the administrative hearing below and arguably 

forfeited the right to do so in this mandamus proceeding. (Dibble v. Gourley (2002) 103 

Cal.App.4th 496, 502, disapproved on another ground in MacDonald v. Gutierrez (2004) 

32 Cal.4th 150, 157-159; Morgan v. Community Redevelopment Agency (1991) 231 

Cal.App.3d 243, 258.) 

 The trial court nevertheless considered Ruiz’s request to suppress Detective 

Puente’s statements and found that Detective Puente was Ruiz’s union representative. 

The trial court concluded, however, that section 3303, subdivision (i) did not apply to 

Ruiz’s November 28, 2008 conversation with Detective Puente about Ruiz’s reasons for 

entering the SIU trailer later that day because the conversation concerned matters that 

were prospective in nature rather than about historical facts relevant to the Department’s 

investigation of Ruiz. We question whether the statutory privilege accorded by section 

3303, subdivision (i) can be parsed according to the subject matter of the communication 

between an officer and his or her designated representative. We need not, however, 

decide this issue. Suppression of the challenged statements would not affect the findings 

that Ruiz committed multiple other incidents of misconduct that would support the 

penalty of termination. Ruiz’s entry into the trailer violated the order prohibiting him 

from entering any City facility not open to the general public, regardless of his reasons 

for doing so. Ruiz also committed multiple violations of the order prohibiting him from 

discussing IA 08-06 with other City employees. Any error would thus have been 

harmless. 

IV. Substantial evidence supports the finding of insubordination 

 Ruiz contends he did not intentionally violate order No. 5, prohibiting him from 

entering any part of any City facility not open to the general public, when he entered the 

SIU trailer on November 28, 2008, because he believed he had permission to do so from 
12 

Sergeant Musquiz, his supervisor. Order No. 5 contains no exception for a supervisor’s 

permission to enter City property not open to the general public. The order states: “You 

are prohibited from entering any part of any City facility which is not open to the general 

public.” Ruiz read the order and understood its meaning. 

 Ruiz’s actions belie his proffered justification for entering the trailer -- his reliance 

on Sergeant Musquiz’s permission in order to retrieve some personal belongings. Ruiz 

first sought help in gaining access to the trailer not from Sergeant Musquiz, but from 

Detective Puente, a colleague, and not a supervisor. Ruiz turned to Sergeant Musquiz 

only after Detective Puente was unavailable. After entering the trailer, Ruiz did not 

collect personal effects, but rather asked Sergeant Musquiz to obtain information for him 

on the Department’s computer. 

 Substantial evidence supports the trial court’s conclusion that Ruiz’s entry into the 

trailer was a willful violation of order No. 5. 

V. Penalty 

Substantial evidence supports the factual findings sustained by the hearing officer 

that were the basis for terminating Ruiz’s employment. The penalty imposed by an 

administrative agency will not be disturbed in a mandamus proceeding absent a manifest 

abuse of discretion. (Kazensky, supra, 65 Cal.App.4th at p. 54.) “It is only in the 

exceptional case, when it is shown that reasonable minds cannot differ on the propriety of 

the penalty, that an abuse of discretion is shown. [Citations.]” (Deegan v. City of 

Mountain View (1999) 72 Cal.App.4th 37, 47.) No such showing has been made here. 

Sustaining Ruiz’s discharge was not an abuse of discretion, and the trial court did not err 

by denying the petition for writ of mandate. 
13 

DISPOSITION 

 The judgment is affirmed. The City is awarded its costs on appeal. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

 _______________________, J. 

 CHAVEZ 

We concur: 

______________________, Acting P. J. 

ASHMANN-GERST 

______________________, J.* 

FERNS 

________________________________________________________________________ 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.