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Filed 3/27/19; Modified and Certified for publication 4/23/19 (order attached) 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

CAROLINA PONCIO,

Plaintiff and Appellant,

v.

DEPARTMENT OF RESOURCES RECYCLING 

AND RECOVERY,

Defendant and Respondent.

C082614

(Super. Ct. No. 34-2015-

80002198CUWMGDS)

The Division of Recycling within the Department of Resources Recycling and 

Recovery (CalRecycle) granted Carolina Poncio a probationary certificate to run a 

recycling center. CalRecycle revoked her probationary certificate after Poncio’s husband 

Victor attempted to bribe a CalRecycle employee assigned to audit Poncio’s recycling 
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center. After a CalRecycle hearing officer upheld the revocation, Poncio filed a petition 

for writ of administrative mandamus under Code of Civil Procedure section 1094.5. 

Poncio included in her petition an assertion that she is entitled to a traditional writ of 

mandamus under Code of Civil Procedure section 1085. However, because she seeks 

review of a quasi-judicial adjudication, her exclusive remedy is a petition for writ of 

administrative mandamus under Code of Civil Procedure section 1094.5. (California 

Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 

1482.) The trial court denied the petition.

Poncio now contends (1) the hearing officer and the trial court misapplied Public 

Resources Code section 14591.2, the statute providing for disciplinary action against 

certificate holders, (2) CalRecycle violated Poncio’s constitutional and statutory due 

process rights, and (3) the evidence of the attempted bribe was insufficient to revoke 

Poncio’s probationary certificate for dishonesty. Concluding that each contention lacks 

merit, we will affirm the judgment.

BACKGROUND

“[CalRecycle] may take disciplinary action against any party responsible for 

directing, contributing to, participating in, or otherwise influencing the operations of a 

certified or registered facility or program. A responsible party includes, but is not limited 

to, the certificate holder, registrant, officer, director, or managing employee.” (Pub. 

Resources Code § 14591.2, subd. (a).) CalRecycle may take disciplinary action if, 

among other actions, a “responsible party engaged in dishonesty, incompetence, 

negligence, or fraud in performing the functions and duties of a certificate holder or 

registrant.” (Pub. Resources Code, § 14591.2, subd. (b)(2).) Here, it was alleged that 

Victor engaged in dishonesty by offering a bribe.

Poncio held a probationary certificate to operate a beverage container recycling 

center, which she called S.O.S. Planet Recycling. Victor was a managing employee and 

responsible party in the operation (Pub. Resources Code, § 14591.2, subd. (a)) under the 
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California Beverage Container Recycling and Litter Reduction Act (Pub. Resources 

Code, § 14500 et seq.). In April 2015, CalRecycle initiated a probationary audit of 

Poncio’s business. Sotheary Hul, a CalRecycle auditor, contacted Poncio and scheduled 

a site visit for May 6, 2015. Hul informed Poncio that the audit would include logs and 

daily summaries from March 1, 2015 to the day of the site visit. When Hul arrived, 

Victor informed her that they did not have all the records but would find them. Hul said 

she would return on May 8 and warned Victor not to fabricate the records.

On May 8, Hul returned and Victor gave her all of the logs and daily summaries. 

After Hul had returned to her car, Victor approached the car. At the administrative 

hearing, both Hul and Victor testified to what happened at that point. According to Hul, 

Victor handed her an envelope. She asked what it was, and Victor responded that it was 

money “for gas or whatever.” She told him she could not accept it, but Victor said there 

were no cameras around. After Hul refused the envelope three to five times, Victor 

finally took it back. Hul never opened the envelope. According to Victor, he followed 

Hul to her car and asked a question about recordkeeping. She answered, and Victor tried 

to hand her an envelope with two tickets for free hamburgers to thank her for her help. 

Hul said she could not accept the envelope and never even touched it. Victor claimed he 

did not intend to influence Hul’s audit of the records.

After reviewing the logs and daily summaries, Hul believed they appeared 

fabricated because of the nice alignment of numbers, common authorship, and pristine 

cleanliness. She recommended that the case be referred to the investigations unit. 

Instead, the decision was made to revoke Poncio’s probationary certificate.

On June 26, 2015, CalRecycle notified Poncio that her probationary certificate 

would be revoked effective June 30, 2015, under Public Resources Code section 14541, 

subdivision (b), which gives CalRecycle authority to revoke a probationary certificate 

after notice to the holder of the probationary certificate. The stated grounds for 
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revocation were (1) dishonesty, (2) failure to provide immediate access to records, and 

(3) past violations.

Poncio requested a hearing under Public Resources Code section 14541, 

subdivision (b), which provides: “A probationary certificate issued pursuant to this 

section shall be issued for a limited period of not more than two years. Before the end of 

the probationary period, the department shall issue a nonprobationary certificate, extend 

the probationary period for not more than one year, or, after notice to the probationary 

certificate holder, revoke the probationary certificate. Subsequent to the revocation, the 

former probationary certificate holder may request a hearing, which, notwithstanding,

[sic] Section 11445.20 of the Government Code, shall be conducted in the same form as a 

hearing for an applicant whose original application for certification is denied.”

On August 17, 2015, a hearing was held on the revocation of Poncio’s 

probationary certificate. The hearing officer was a senior attorney for CalRecycle. After 

the hearing, the hearing officer issued a decision sustaining the revocation of Poncio’s 

probationary certificate but only on the charge of dishonesty, concluding that a bribe is an 

act of dishonesty. The hearing officer made the following factual findings as to that 

charge:

“I do not find the exact contents of the envelope to be dispositive in this matter. 

There was no dispute in the record that a responsible party at a recycling center gave an 

envelope to a state auditor as she was departing the facility at the close of a probationary 

review visit. Whether it was money or coupons, the record shows that something of 

value was within the envelope. The auditor had the authority to recommend whether that 

site would continue to operate or be shut down. The auditor was still in the process of 

gathering information and making decisions on that issue.

“Furthermore, it may be inferred from the circumstances that [Poncio’s] continued 

certification as a recycling center was in a tenuous position, thus providing motivation to 

do something to affect the auditor’s actions. The site had a history of various violations 
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of the [California Beverage Container Recycling and Litter Reduction] Act and 

regulations, however minor those may have been. Any one of those infractions could 

have technically been grounds for revocation of [Poncio’s] probationary certification . . . . 

The . . . auditor made a second trip to the site solely to collect records that were missing 

at the first visit. The auditor had warned [the Poncios] not to falsify records. It is 

reasonable to assume [the Poncios] had some concern about how their recordkeeping 

situation and the related production delay might affect their probationary review.

“Although [the Poncios] have characterized the offer of the envelope as a gift, 

timing is everything. Had [the Poncios] offered coupons or money or something else of 

value to the auditor after the review had been completed and [CalRecycle] had made a 

final decision, it would have been more reasonable to infer that a mere thank you gift had 

been intended. . . . Given the timing and circumstances here, a reasonable conclusion is 

that the envelope was offered with intent to unlawfully influence the decision of the 

auditor and was thus in the nature of a bribe. As this is a clear act of dishonesty, 

[CalRecycle] had proper authority to revoke [Poncio’s] probationary certificate.”

STANDARD OF REVIEW

“Section 1094.5 of the Code of Civil Procedure provides the basic framework by 

which an aggrieved party to an administrative proceeding may seek judicial review of 

any final order or decision rendered by a state or local agency.” (Bixby v. Pierno (1971) 

4 Cal.3d 130, 137, fn. omitted.) “In reviewing administrative proceedings under [Code of 

Civil Procedure] section 1094.5 that do not affect a fundamental right, such as an attempt 

to obtain a license to engage in a profession or business, the trial court reviews the whole 

administrative record to determine whether the findings are supported by substantial 

evidence and whether the agency committed any errors of law. [Citations.]” (Donley v. 

Davi (2009) 180 Cal.App.4th 447, 455-456 (Donley).) “Our scope of review on appeal 

from such a judgment is identical to that of the trial court.” (Bixby, at p. 149.)
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“Under the substantial evidence test, the agency’s findings are presumed to be 

supported by the administrative record and, in both the trial court and here on appeal, it is 

the petitioner/appellant’s burden to show they are not. [Citations.] We ‘ “do not reweigh 

the evidence; we indulge all presumptions and resolve all conflicts in favor of the 

[agency’s] decision. Its findings come before us ‘with a strong presumption as to their 

correctness and regularity.’ [Citation.]” ’ [Citation.] When more than one inference can 

be reasonably deduced from the facts, we cannot substitute our own deductions for that of 

the agency. [Citation.] We may reverse an agency’s decision only if, based on the 

evidence before it, a reasonable person could not have reached such decision. 

[Citations.]” (Donley, supra, 180 Cal.App.4th at p. 456.)

DISCUSSION

I

Poncio contends the hearing officer and trial court misapplied Public Resources 

Code section 14591.2, subdivision (b) because, even if Victor’s actions may be 

characterized as an act of dishonesty, the actions were not, in the words of the statute, 

“dishonesty . . . in performing the functions and duties of a certificate holder . . . .” (Pub. 

Resources Code, § 14591.2, subd. (b)(2).) Poncio argues that offering a bribe is not a 

function or duty of a recycling center. She attempts to limit the “functions and duties” 

language of the statute, arguing “the act of dishonesty must actually be an actual function 

and duty of a certificate holder and does not include acts relating to obtaining or holding 

the certificate.” In support of this argument, she notes that a different provision relates to 

obtaining a certificate. Subdivision (b)(1) of Public Resources Code section 14591.2 

provides for discipline if “[t]he responsible party engaged in fraud or deceit to obtain a 

certificate or registration.”

We reject Poncio’s attempted distinction. Here, Poncio already held a 

probationary certificate, and probationary certificate holders must keep the proper records 

of their operations. There is no dispute about that in this case. Victor’s attempt to bribe 
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Hul was intended to influence Hul’s decision about whether Poncio was keeping proper 

records. Victor did not attempt to bribe Hul to obtain a probationary certificate; instead, 

he was attempting to influence her to overlook any deficiencies in Poncio’s compliance 

with recordkeeping duties, which would come to light in an audit. Because the bribe was 

attempted in connection with the obligation to keep proper records, it was attempted “in 

performing the functions and duties of a certificate holder . . . .” (Pub. Resources Code, 

§ 14591.2, subd. (b)(2); see Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438, 447-

448 [doctor properly disciplined for dishonesty even though not dishonest in treatment of 

patients but instead in statements about his employment status and disability insurance 

benefits].)

II

Poncio next contends the procedure to revoke her probationary certificate violated 

her constitutional and statutory due process rights in five ways: (A) failure to afford a 

hearing or an adequate hearing before revocation, (B) improper communication among 

CalRecycle employees before the hearing, (C) failure to notify Poncio of the governing 

procedures, (D) failure of the hearing officer to make an independent determination, and 

(E) absence of standards for revocation.

A

Poncio argues she was entitled to a hearing before revocation of her probationary 

certificate. In the alternative, she argues CalRecycle’s decision to revoke her 

probationary certificate constituted a “hearing” without an opportunity for Poncio to 

respond. The arguments lack merit.

Poncio fails to establish that she was entitled to a hearing before CalRecycle

revoked her probationary certificate. But she offers no authority for this proposition 

other than general due process principles. In fact, the authority is to the contrary. The 

Public Resources Code provides only for a postrevocation hearing. “Subsequent to the 

revocation, the former probationary certificate holder may request a hearing . . . .” (Pub. 
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Resources Code, § 14541, subd. (b), italics added.) Cases hold that a postdeprivation 

hearing may be sufficient to satisfy due process requirements when revoking a license 

granted to engage in a business. (See, e.g., American Liberty Bail Bonds, Inc. v. 

Garamendi (2006) 141 Cal.App.4th 1044, 1057.) The trial court cited this authority in its 

decision denying relief, but Poncio makes no attempt to distinguish it. On this record, we 

conclude the absence of a predeprivation hearing did not deprive Poncio of due process.

In the alternative, Poncio asserts that because CalRecycle employees discussed 

Victor’s attempted bribe before CalRecycle revoked Poncio’s probationary certificate, a 

hearing was held without accusation or response. We disagree with this novel assertion. 

Although the record shows that, before CalRecycle revoked Poncio’s probationary 

certificate, at least four CalRecycle employees discussed Victor’s attempted bribe and the 

appropriate action for CalRecycle to take, and also received attorney input from within 

the department, such internal review and decision-making did not constitute a hearing. 

The Public Resources Code provides for a hearing only after revocation of a probationary 

certificate, and at least by implication it requires CalRecycle employees to determine, 

without a hearing, whether the probationary certificate should be revoked. That 

prerevocation determination was not a hearing and it did not deny Poncio due process.

B

In addition, Poncio claims that if the prerevocation determination was a hearing, 

CalRecycle violated Government Code section 11430.10, which prohibits agency 

employees from having ex parte communication with the “presiding officer” while a 

proceeding is pending. Because, as we have already explained, CalRecycle’s 

prerevocation determination was not a hearing, Government Code section 11430.10 does 

not apply.

Perhaps anticipating our conclusion, Poncio argues the prerevocation 

determination was an adjudicative proceeding at which a presiding officer made a 

determination. Government Code section 11405.80 provides: “ ‘Presiding officer’
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means the agency head, member of the agency head, administrative law judge, hearing 

officer, or other person who presides in an adjudicative proceeding.” However, this 

reference to an “adjudicative proceeding” applies only to “an evidentiary hearing for 

determination of facts pursuant to which an agency formulates and issues a decision.” 

(Gov. Code, § 11405.20.) The only “evidentiary hearing” held by CalRecycle in this case 

was the postrevocation hearing at which the hearing officer presided. The prerevocation 

determination was not made pursuant to an evidentiary hearing. In this case, the only 

presiding officer for the purpose of these Government Code provisions was the hearing 

officer, and there is no allegation he had any improper ex parte communications. 

Poncio’s argument that prerevocation conversations among CalRecycle employees were 

improper is without merit.

C

Government Code section 11425.10, subdivision (a)(2) requires an agency that 

conducts an adjudicative proceeding to “make available to the person to which the 

agency action is directed a copy of the governing procedure . . . .” When CalRecycle 

revoked Poncio’s probationary certificate, it informed her she could request a hearing and 

that the procedures governing the hearing were in title 14, section 2130 of the California 

Code of Regulations. After Poncio requested a hearing, CalRecycle notified Poncio that 

the hearing would be an informal hearing.

Poncio contends CalRecycle violated Government Code section 11425.10, 

subdivision (a)(2) because CalRecycle failed to provide any disciplinary guidelines or 

documents. But as the trial court held, the contention is without merit because the 

statute required CalRecycle to make the governing procedure available to Poncio, it 

did not require the agency to send her a copy of the procedure. Government Code 

section 11425.10 relates to the conduct of adjudicatory proceedings, not to the basis for 

discipline. The relevant Law Revision Commission comment notes: “Subdivision (a)(2) 
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requires only that the agency ‘make available’ a copy of the applicable hearing 

procedure.” Nothing more is required.

D

Without citation to authority, Poncio argues CalRecycle’s practices do not allow 

for a fair review of the penalty because the hearing officer only had authority to 

determine whether the violations occurred, and had no discretion to change the penalty. 

Because Poncio does not support her argument with authority, she has failed to carry her 

burden of showing error and has forfeited consideration of the contention. (See Okasaki 

v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1 [plaintiffs’ contention in 

opening brief forfeited for failure to provide authority]; see also Habitat Trust for 

Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1323

[appellant bears burden of establishing due process right with authority].) The trial court 

also noted Poncio’s failure to provide authority and the consequent forfeiture on this 

issue.

E

Poncio asserts she was denied a fair hearing because there were no standards for 

determining whether a probationary certificate should be revoked. She cites the 

testimony of Hul, the auditor, at the hearing to the effect that there are no written 

standards and procedures for determining whether and how to discipline a certificate 

holder.

Contrary to Poncio’s contention, the Public Resources Code and the California 

Code of Regulations provide for standards and procedures with respect to disciplining a 

certificate holder. Public Resources Code section 14591.2 provides the grounds on which 

a probationary certificate holder may be disciplined (including dishonesty) and the 

available discipline (including revocation of the probationary certificate). CalRecycle 

has discretion under this statute to determine the level of discipline. Section 2130 of title 
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14 of the California Code of Regulations provides the procedure for holding a hearing on 

any discipline imposed.

While it is true that the statutes and regulations do not provide for the specific 

discipline to be imposed for each type of violation, such agency discretion does not 

violate due process rights unless the exercise of discretion is arbitrary or capricious. “It is 

only when an exercise of a discretionary power becomes so abusive that it is the 

equivalent of arbitrary or capricious action that it may be subjected to judicial review.” 

(Walsh v. Kirby (1974) 13 Cal.3d 95, 106.) Here, revocation of a probationary certificate 

because a managing employee attempted to bribe a CalRecycle auditor is not abusive and 

does not require us to step into the shoes of the administrative agency and reverse an 

injustice.

III

Construing evidence and drawing inferences in her own favor, Poncio contends 

there was insufficient evidence of dishonesty to revoke her probationary certificate. 

Construing the evidence and drawing inferences in the light most favorable to the 

administrative decision, as we must, we conclude the evidence was sufficient.

“Abuse of discretion is established if . . . the order or decision is not supported by 

the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., 

§ 1094.5, subd. (b).) We uphold a factual determination of an agency if the 

determination is supported by substantial evidence even if there is contradictory evidence 

or a possible contradictory inference. (California Native Plant Society v. City of Santa 

Cruz (2009) 177 Cal.App.4th 957, 984.) “Inferences may constitute substantial evidence 

as long as they are the product of logic and reason rather than speculation or conjecture. 

[Citation.]” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.)

Here, the hearing officer considered not only that Victor offered something to Hul 

but also the context of that offering. Hul was auditing the recycling center, had been to 

the center before when Poncio did not have all records at hand, warned Victor not to 
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falsify records, and returned later to retrieve the records and perform the audit. Even 

though the hearing officer did not make a determination about what was in the envelope, 

the hearing officer reasonably inferred it was something of value. In fact, Victor 

admitted offering tickets to Hul. The hearing officer also determined that the 

circumstances and timing of the offer led to a reasonable inference that the offer was 

meant to influence Hul in her audit of the recycling center. Because these inferences 

were reasonable, the evidence was sufficient to sustain the finding that Victor attempted 

to bribe Hul, which as an act of dishonesty.

Poncio’s argument on appeal is based on alternative inferences. She argues 

Victor’s offer was only meant as a gift of gratitude for Hul returning to retrieve the 

records and was not meant to influence Hul in her audit. But Poncio is not entitled to 

draw that inference in this proceeding because the hearing officer reasonably drew the 

contrary inference.

Borrowing from an instruction in criminal proceedings that the jury must draw an 

inference of innocence if the evidence is susceptible to two reasonable interpretations 

(see People v. Merkouris (1956) 46 Cal.2d 540, 561-562), Poncio claims we must adopt 

inferences in favor of finding Victor did not offer a bribe. But that instruction is for a 

jury in a criminal case, not the reviewer of its decision. On review of a factual 

determination by a finder of fact, even in a criminal case, we sustain that factual

determination if it is supported by substantial evidence, including inferences that may 

have a more innocent alternative. (See People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 

1766; see also Donley, supra, 180 Cal.App.4th at p. 456.)

Poncio claims there was no evidence Victor had actual knowledge Poncio could 

lose her probationary certificate if the audit went poorly. But Victor’s position as a 

managing employee and responsible party, along with his participation in providing 

records to Hul, supports an inference he knew that the audit could have an effect on 

Poncio’s probationary certificate.
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Poncio’s remaining substantial evidence arguments continue to construe the 

evidence and draw inferences in her own favor rather than in the light most favorable to 

the hearing officer’s findings. Therefore, these arguments are unpersuasive on the 

question of substantial evidence. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 

875, 881 [recitation of evidence in light favorable to appellant forfeits substantial 

evidence contention].)

DISPOSITION

The judgment is affirmed. CalRecycle is awarded its costs on appeal. (Cal. Rules 

of Court, rule 8.278(a).) 

 /S/

MAURO, J.

We concur:

 /S/

RAYE, P. J.

 /S/

DUARTE, J.
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Filed 4/23/19

CERTIFIED FOR PUBLICATION

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

CAROLINA PONCIO,

Plaintiff and Appellant,

v.

DEPARTMENT OF RESOURCES RECYCLING 

AND RECOVERY,

Defendant and Respondent.

C082614

(Super. Ct. No. 34-2015-

80002198CUWMGDS)

ORDER MODIFYING 

OPINION AND GRANTING 

REQUEST TO PUBLISH

[NO CHANGE IN 

JUDGMENT]

APPEAL from a judgment of the Superior Court of Sacramento County, 

Christopher E. Krueger, Judge. Affirmed.

Gugliotta & Ponzini and John C. Gugliotta for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Robert W. Byrne, Senior Assistant Attorney 

General, Randy L. Barrow, Supervising Deputy Attorney General, and Gwynne B. 

Hunter, Deputy Attorney General for Defendant and Respondent.

THE COURT:

The opinion in the above-entitled matter filed on March 27, 2019, was not 

certified for publication in the Official Reports. For good cause it now appears that the 

opinion should be published in the Official Reports and it is so ordered.
2

It is also ordered that the opinion filed in this case on March 27, 2019, be modified 

as follows:

On page 2, second full sentence, remove from the body of the opinion the 

following: “Poncio included in her petition an assertion that she is entitled to a 

traditional writ of mandamus under Code of Civil Procedure section 1085. However, 

because she seeks review of a quasi-judicial adjudication, her exclusive remedy is a 

petition for writ of administrative mandamus under Code of Civil Procedure section 

1094.5. (California Water Impact Network v. Newhall County Water Dist. (2008) 161 

Cal.App.4th 1464, 1482.)” and insert as a footnote.

On page 7, last paragraph, second sentence, remove “But she” and replace with 

“She” so that the sentence now reads as follows:

“She offers no authority for this proposition other than general due process principles.”

On page 12, fourth full sentence, remove “as” and replace with “was” so that the 

sentence now reads as follows:

“Because these inferences were reasonable, the evidence was sufficient to sustain the 

finding that Victor attempted to bribe Hul, which was an act of dishonesty.”

This modification does not change the judgment.

FOR THE COURT:

 /S/

RAYE, P. J.

 /S/

MAURO, J.

 /S/

DUARTE, J.