California Court Upholds Termination of Los Angeles Firefighter for Revenge Pornography and Vandalism

A California appellate court has affirmed the termination of a Los Angeles City firefighter who was disciplined for engaging in revenge pornography and vandalizing a private individual’s property. The decision addresses a series of procedural challenges raised by the former firefighter and rejects each of them.

Marcus D. Portis was a firefighter with the Los Angeles City Fire Department. In June 2021, the Department was notified by police that Portis had been criminally charged with posting sexually explicit videos of a woman, identified in the decision as C.C., on pornographic websites without her consent. During the Department’s investigation, it also learned that C.C. had previously reported that Portis broke the windows of her car, poured orange paint into it, and slashed her tires. When interviewed by the Department in October 2021, Portis admitted to both the vandalism and the posting of the explicit videos.

On November 19, 2021, the Department filed formal charges alleging three counts of misconduct: vandalizing C.C.’s vehicle with paint, slashing her tires, and posting sexually explicit videos without her consent. A deputy chief prepared and verified the complaint under penalty of perjury. The fire chief signed a separate form transmitting the charges to the City’s Board of Fire Commissioners, and the Department served Portis with the complaint and a notice of the department’s intent to discharge, suspend, or terminate by registered mail in December 2021.

In February 2023, the Department amended the complaint to correct a typographical error in the date of one of the vandalism allegations. A Board of Rights convened in March 2023. Portis pleaded not guilty and moved to dismiss the charges, arguing they were time-barred and invalid because the complaint had not been personally verified by the fire chief. The Board denied the motion, found Portis guilty on all charges, and ordered his removal from employment effective March 7, 2023.

Portis petitioned the superior court for a writ of mandate, again challenging the verification of the complaint and the timeliness of the charges. The trial court denied the petition, and Portis appealed.

The Court of Appeal rejected Portis’s argument that the City Charter required the fire chief to personally verify the disciplinary complaint. The court concluded that the charter permits the fire chief to delegate administrative responsibilities and that the verification by a deputy chief, coupled with the fire chief’s approval and transmission of the charges, satisfied the charter’s requirements.

The court also rejected the statute-of-limitations argument. It held that the original complaint was filed and served well within one year of the Department’s discovery of the misconduct. The amended complaint, which merely corrected the date of one allegation, arose from the same facts and therefore related back to the original, timely complaint. It explained the statute of limitations issue as follows:

• Portis contends the charges filed against him were untimely under the Charter. We disagree.
• Disciplinary charges against a Department employee “must be filed within one year of the Department’s discovery of the act committed or omitted by a member and in no event later than two years from the date of the act or omission.”
• Here, the Department discovered Portis’s misconduct when police reported it on June 23, 2021. The Department filed charges against Portis on December 9, 2021, and served the complaint on him by certified mail on December 13, 2021. This filing and service occurred well within one year of the Department’s discovery of Portis’s misconduct.
• Portis argues the operative amended complaint was untimely because it was not served on him until March 7, 2023, more than two years after the Department discovered his misconduct. We disagree.
• ” ‘Where the statute of limitations has expired before the filing of an amended complaint, unless an amended complaint relates back to a timely filed original complaint, the amended complaint will be time-barred. Under the relation-back doctrine, to avoid the statute of limitations bar, the amended complaint must allege the same general set of facts, refer to the same accident, same injuries, and refer to the same instrumentality as alleged in the original complaint.’ “
• The relation-back doctrine requires courts to compare the factual allegations in the original and amended complaints.
• Here, the original and amended complaints arose out of the same set of facts, differing only in the date Portis allegedly slashed C.C.’s tires. Accordingly, the amended complaint relates back to the original complaint and was not time-barred.
• Portis argues, without citing authority, that application of the relation-back doctrine would be unfair because the court relied on the doctrine sua sponte, giving Portis no opportunity to present contrary authority or develop a factual record relevant to the theory. On the contrary, the facts upon which the doctrine is based were fully briefed by the parties and established both how and when the original complaint was amended. In any case, Portis made those arguments here and we have considered them on the merits.
• Portis argues that service of the amended complaint on the Fire Commission was a condition precedent to considering application of the relation-back doctrine. We disagree. The Fire Commission plays no active role in employment disciplinary proceedings, which are within the exclusive purview of the fire chief.

Finally, Portis argued that the disciplinary process violated his Seventh Amendment right to a jury trial, relying on a recent U.S. Supreme Court decision involving administrative penalties. The court declined to apply that reasoning, explaining that the Seventh Amendment does not apply to state civil proceedings and that Portis had not shown any historical right to a jury trial in administrative discipline cases involving public employment.

The Court of Appeal affirmed the judgment denying Portis’s petition for writ of mandate, leaving the termination in place. Here is a copy of the decision: