1

Filed 3/21/16 Curiel v. Dept

. of Social Services CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

YVONNE CURIEL,

Plaintiff and Appellant,

v.
DEPARTMENT OF SOCIAL SERVICES,

Defendant and Respondent. C074523 (Super. Ct. No. 34201 1 80000810CUWMGDS)

Defendant Department of Social Services (the department) revoked the child day

care license of plaintiff Yvonne Curiel 1 because it found , after a n administrative hearing,
that a child in her care was spanked and Curiel made fa lse statements about it to an investigator

. Curiel has consistently claim ed she never struck the child. T he trial court denied Curiel’s petition for a writ of administrative mandamus after it concluded the findings and conclusions of the administrative law judge were supported by the weight of

1 The administrative record spells Curiel’s first name “Ivonne,” consistent with her testimony at the administrative hearing. We adopt the spelling used by the trial court.2

the evidence

. The trial court also found the department did not abus e its discretion by imposing the penalty of license revocation

. Curiel now contends (1) the trial court erred in considering a new theory

-- that
Curiel had fraudulent ly alter ed attendance l ogs

-- which was not asserted at the
administrative heari ng ; (2) the trial court erred in applying a “technical” rule of
admissib ility set forth in the Evidence Code, rather than a “broad” rule of admissibility set forth in the Administrative Procedure Act, to conclude that the administrative law judge did not err in excluding evidence of investigator bias ; and (3) the trial court
concluded Curiel’s punishment was not excessive by incorrectly considering the new theory

-- that Curiel had fraudulently altered attendance logs

-- which was not asserted at the administrative hearing

. Finding no error or abuse of discret ion , we will affirm the judgment

. BACKGROUND
T he department licensed Curiel in 1997 to operate a family child care home in San
Francisco. Health and Safety Code section 1596.885 2 provides that the department may
revoke a child day care license for the fo llowing reasons, among others :

“ (a) Violation by the licensee, registrant, or holder of a special permit of this act or of the rules and regulations promulgated under this act

.

“ (b) Aiding, abetting, or permitting the violating of this act or of the rules and regulat ions promulgated under this act.

“ (c) Conduct which is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility or the people of this state.” ( § 1596.885 , subds

. (a), (b), (c). )

2 Undesignated statutory references are to the Health and Safety Code.3

In August 2010 the d epartment began the process of revoking Curiel’s license by issuing a formal a ccusation

. The department alleged that on or about September 21, 2009, Curiel violated sec tion 1596.885 , subdivisions (a) and (b) , when a child in her care “incurre d a n inj ury , which appears as a handprint, while at the facility. ” The accusation cited implementing regulation s requiring constant supervision of children and providing
each chil d in a licensed facility a right to be free from corporal punishment. (Cal. Code Regs. , tit. 22, § § 102417 & 102423, subd. (a)(4).) The accusation fu rther alleged that
Curiel violated section 1596.885 , subdivision (c) by making one or more false statements
about the injury , including that the child’s mother had asked Curiel for a $600 loan, that
Curiel had given the parents two weeks’ notice to terminate the child care arrangement , and that the child’s father picked up the child on September 21 , 2009

. A n administrative law judge (ALJ) conducted an evidentiar y h earing in January
2011 in connection with the department’s accusation

. The evidentiary hearing focused on an injury sustained by a two

- year

- old boy who had been in Curie l ’s care for seven
weeks. It was undisputed that the child was spanked between the time the mother dropped him off at day care and the time she found a handprint mark on his buttocks that evening

. A medical expert testified that it was impossible to tell what time the child had been hit or whether the handprint belonged to a man or a woman. Curiel denied ever
sp anking children and understoo d it was never permitted. Curiel contended the mother had been in a shelter because of abuse by the father and it was the father who picked up
the child that day, so the father likely hit the child. The father denied ever striking any of
his children. The mother said she picked up the child on the day in question and took him by
bus to a cousin’s house , where she later changed his diaper and saw the red mark

. The
father said he had on ly picked up the child from Curiel’s care once and that was several weeks before the day in question. He said he picked up the couple’s other children on September 21 and took them to the cousin’s house, arriving there before his wife

. The4

cousin corroborated that the father arrived with the older children 30 or 40 minutes before
the mother arrived with the child who had been in Curiel’s care

. The mother filed a complaint against Curiel and t he department sent an investigator

. The investigator te stified that when she arrived at Curiel’s home to begin the investigation, Curiel promptly said she knew what the investigation was about and
handed ove r a handwritten lett er . The letter was allegedly given to the victim’s mother on September 21 to docume nt that Curiel gave the mother two weeks’ notice to find other care arrangements because the child cried a lot and because the mother had asked to
borrow $600 that day, making Curiel uncomfortable. The letter also stated that the father had p icked up the child that day and that Curiel made calls to the mother to find out why

s he did not return with the child but the calls went unanswered. Although Curiel consistently claimed the father had picked up the child , the only corroborating evidence was a declaration from an unavailable witness saying he thought the mother’s first verbal report to the referring agency identified the father as the one w ho picked up the child . The witness a lso a cknowledged inconsistencie s in his recollection
and the evidence maintained by his employer . T he ALJ gave his testimony no weight , and the trial court found no abuse of discretion regarding that evidentiary determination.
The investigator also interviewed the parents , who both said the mo ther picked up
the child that day and had never asked to borro w money from Curiel. The parents denied
that Curiel told them the ir child cried too much or would be terminated from child care
and the mother also denied ever receiving mail or tele phone calls from Curiel. The investigator did not call Curiel a liar but believed t he evidence aga inst Curiel was “ more compelling ” than the evidence provided by Curiel. After hearing testimony from Curiel, the parents, relatives of the parents, the investigator and the doctor, the ALJ found that Curie l made uncorroborated and false statements about who picked up the child, abo ut whether she gave a two

- week notice to5

the c hild’s mother , and about whether the mother requested a $600 loan. The ALJ found the child’s injury happened whi le the child was under Curiel’s care and supervision. Observing that Curiel had been a licensed child care provider for 14 years without
inc ident and acknowledging evidence that she was “ respected by the parents of children in her care and other providers in her community, ” the ALJ lamented that she showed “ no signs of remorse, blames the father for the injury , and portrays the mother as a lia r” and provided no evidence engendering confidence that similar behavior would not occur again. The ALJ concluded that the protection of the public compelled revocation of Curiel’s license. The department adopted the ALJ’s proposed decision and it beca me final. After Curiel filed a petition for writ of administrative mandamus in the trial court , the trial court reviewed the administrative record under the independent judgment test, making its
own f indings and determinations. It found substantial evide nce to support the department’s decision and it denied Curiel’s writ petition.
Additional facts are included in the discussion.
DISCUSSION
I
Curiel contends the trial court erred in considering a new theory

-- that Curiel had fraudulently altered attendance logs

-- which was not asserted at the administrative hearing

. In its opposition to Curiel’s petition for writ of mandate, the department offered evidence from the administrative record that Curiel was not credible, mentioning the mother’s denia l that she signed an attendance record and suggesting that Curiel must have forged the signature. Curiel properly objected to the forgery reference in her reply, offering a quote from counsel for the department at the administrative hearing affirmatively stating that confusion about the attendance record was the fault of both parties and was not determinative of credibility. The trial court’s tentative ruling6

concluded the mother picked up the child that day. The trial court did not make a finding
that a nyone had forged attendance logs , but in a footnote it noted that the parties had
discussed a “sign

- out sheet.” The trial court said t h at discussion was “not particularly relevant” because the mother and Curiel testified the mother signed the sheets a wee k or two in advance and Curiel testified she later entered the departure times

. At oral argument, Curiel urged the trial court to discard its tentative ruling against her and require a new hearing because, among other things, the attendance record
evidenc e was raised for the first time in the trial court . The department countered that Curiel’s objection was raised for the first time at oral argument. The trial court affirmed its tentative ruling without mentioning the attendance sheet evidence

. Curiel now suggests the trial court was “obviously influenced” in deciding who

s panked the child by the department’s argument that Curiel altered the child’s attendance logs , but the record does not support her argument. She cite s no supporting evidence , and
in fact t he trial court concluded the child was spanked while in Curiel’s care because the mark was first discovered in the evening after day care and the only evidence the injury did not happen at Curiel’s home was her own testimony that the father picke d up the child that afternoon, testimony that was inconsistent with the testimony of several other
witnesses

. The trial court’s only reference to the sign

- out sheet was in the footnote in
which the tria l court explained why the discussion regarding the sign

- o ut sheet was not particularly relevant. The trial court did not find that Curiel altered attendance logs

. Curiel’s argument implies there was a lack of substantial evidence to support the trial court’s conclusion that her testimony was not cred ible

. We ighing the credibility of witnesses and making fact findings is part of a trial court’s independent review of licensing revocation proceedings. ( Governing Board v. Haar (1994) 28 Cal.App.4th 369, 377.) The trial court a pplied the correct test and cited reasons for finding Curiel not
credible. A n appellate court reviewing a license revocation must sustain the trial court’s findings if they are supporte d by substantial evidence and must resolve conflicts in favor7

of the prevailing party. ( Kazensky v. Cit y of Merced (1998) 65 Cal.App.4th 44, 52.) When the evidence is susceptible to more than one inference, we are prohibited from substituting our own deductions for those of the trial court. ( Ibid .) An appellate court may reverse the denial of administrat ive mandamus if (a) no reasonable trier of fact could have considered the evidence reasonable, credible and of solid value; (b) the court’s decision was based on an erroneous conclusion of law; or (c) the trial court failed to make a necessary factual dete rmination. ( Id . at pp. 52

- 53.) Curiel does not provide support for
any of these grounds

. Even if we were to assume that the father had an opportunity to cause the child’s injury , as Curiel insists , there was substantial evidence that Curiel lied about w hat happened that day. The trial court concluded that Curiel’s account was “ difficult to
believe ” for five reasons: (1) the mother allegedly had no response when told she would need to find new daycare, but then she asked Curiel, who she had known for on ly seven weeks, for $600 for a dance class ; (2) the refe rring agency told Curiel the next day that
the child would not be returning to her care because the mother was unhappy but Curiel never told the agency she had given the mother notice; (3) Curiel testified that she gave the mother notice three days before the loan request yet her letter said the reason for the notice was the loan request; (4) Curiel testified the letter was written the evening of the incident yet it mentions a subsequent call to t he mother asking if she would be returning
with the child ; and (5) Curiel did not call her daughter to testify even though she said the daughte r could corroborate her story.
A credibility determination was necessary in this case. Either Curiel told the t ruth and the parents lied or the parents t old the truth and Curiel lied

. As we have said, t he trial

court cited substantial evidence for dis believing Curi el , all documented by reference s to the rec ord, and none mentioning the attendance logs

. Curiel refe rs in her brief to evidence in the record that could have supported a contrary conclusio n, but it is not our8

role to re weigh the evidence and draw new conclusions. There was substantial evidence to support the t rial court’s conclusion without regard to attendance logs

. II
Curiel next contends the trial court erred in applying a “ technical ” rule of admissibility set forth in the Evidence Code , rather than a “ broad ” rule of admissibility
set forth in the Administrative Procedure Act , to conclude that the administrative law judge did not err in excluding evidence of investigator bias

. She claims the error precluded her from showing that the depar tment’s investigator was biased and resulted in
a denial of due process. Curiel’s counsel cross

- examined the in vestigator at length about many details of the investigation , and in particular as to why the investigator believed the mother despite specifically

- identified contradictions in the evidence and why the investigator had not
thoro ughly explored specified evidence favor able to Curiel. The following testimony and colloquy concluded the cross

- examination: “Q: Now, one other question: As far as departmental policy, is it departmental policy to tell prospective parents not to send a child to a particular day care?

“ A: To other parents?

“ Q: If I were calling the Department

--

“ A: U h

- huh.

“ Q:

-- and actually [the agency that referred the child to Curiel in this case ], to be precise, and said, I’m new to the area and I’d like to find a day care

--

“ A: Yes.

“ Q:

-- Does the Department make any recommendations?

“ A: No.

“ Q: Does the Department ever tell prospective parents not to send them to a particular day care because they beat children at that day care?

“ [ Department counsel ] : Objection, relevance

.9

“ [ ALJ ] : What is the relevance of this?

“ [ Counsel for Curiel ] : It’ s part of the bias argument about the Department and its investigation. They’re still telling parents that children are being beat at the day care.

“ [ W i tness interjects]: If a complaint

-- “[ ALJ ]: Wait, wait, wait. [¶] .

. . [¶]

“ [ ALJ ] : What’s that have to do with the relevance of this investigation? That’s
sort of

--

“ [ Counsel for Curiel ] : Because I think [the] investigation was biased and the bias
continues.

“ [ ALJ ] : Well, I’m not sure it shows her bias.

“ [ Counsel for Curie l ] : No, no. But .

. . I will offer evidence as to what parents are being told today. And I think it

-- and I think we all know it’s a violation.

“ [ ALJ ] : Well, I don’t see the relevance of that, so I’ll sustain the objection.

“ [ Counsel for Curiel ] : I have not h ing further. Thank you. ” On redirect, counsel for the department asked the investigator whether she had

ever told any parents not to send their children to Curiel because “ they beat children ” and the investigator responded unequivocally, “No.” Curiel offered no other evidence of bias by the investigator or the department. Curiel’s writ petition asserted she had been denied a fair hearing because she was

n ot allowed to establish that the investigator was “hostile and biased against her , ” but t he
trial court disagreed, pointing out that Curiel not only offered no eviden ce that the investigator told other parents not to send children to Curiel, she offered no evidence the investig ator was biased at all . The trial court observed that the ALJ had broad discretion
to limit cross

- examination on colla teral matters such as the actions of unidentified representatives of the department , espec ially since Curiel made no offer of proof about
what information she expected to elicit in response to her question

.10

The trial court cited authority about offers of proof when cross

- examination
exceeds the scope of the direct examination in a civil or cri minal trial , including People v. Lavergne (1971) 4 Cal.3d 735, 742, Evidence Code section 354 , and People v. Foss (2007) 155 Cal.App.4th 113, 127. Curiel now contends the evidentiary ruling was wrong
because it was not based on the evidence rules set fort h in the Administrative Procedure
Act. But the trial court’s ruling was correct under both civil and administrative standards

. At an administrative hearing, each party has the right “to cross

- examine opposing witnesses on any matter relevant to the issue s even though the matter was not covered in the direct examination” and the right “to impeach any witness.” (Gov . Code § 11513,
subd. (b).) Relevant evidence may be admitted “ if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over obj ection in civil actions.” (Gov . Code § 11513,
subd. (c).) These provisions permit rele vant evidence to be admitted more readily in an administrative hearing than at a civil trial , but they do not sanction the admission of evidence that is not relevant. Moreover, an officer presiding at an administrative hearing
has discretion to exclude ev en relevant evidence “if its probative value is substantially outweighed by the probability that its admission will necessitate un due consumption of time.” (Gov . Code § 11513, subd. (f).) On appeal, we review a trial court’s ruling on the admissibility o f evidence in an administrative hearing for abuse of discretion. ( Miyamoto v. Department of Motor
Vehicles (2009) 176 Cal.App.4th 1210, 1217.) The trial court did not abuse its discretion
when it agreed with th e ALJ that questions about whether “the depa rtment” steered parents away from Curiel’s care at the time of the hearing h ad no apparent relevance to
whether the investigator was biased while interview ing witnesses many months earlier

. (See City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 78 2 [witnesses in administrative proceeding have no duty to respond to inquiries that cannot serve to prove11

or disprove a point in contention].) Curiel had the opportunity to cross

- examine the witness and she was not denied a fair trial because the question ing on bias was limited.
III
Curiel further contends the trial court c oncluded her punishment was not excessive by incorrectly considering the new theory

-- that Curiel had fraudulently altered attendance logs

-- which was not asserted at the administrative hearing

. As we explained
in Part I of this opinion , however, the trial court found the sign

- out sheet discussion inconsequenti al

. Curiel’s suggestion that the trial court improperly r e lied on it lacks
merit

. “[T]he propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency and its decision may not be disturbed unless there has been a manifest abuse of discretion.” ( Cadilla v. Board of Medical Examiners (1972)
26 Cal.A pp.3d 961, 966.) A r eviewing court determines only whether the penalty was arbitrary, capricious or patently abusive. ( Id . at pp. 966

- 967.) Reviewing courts are not free to substitute their discretion for that of an administrative agency concerning the degree of punishment. ( Cal. Real Estate Loans, Inc. v. Wallace (1993) 18 Cal.App.4th 1575, 1580.) The only authority Curiel cites for a lesser punishment is the principle that li cense revocation is drastic and the principl e that judicial discretion in the administration of penalties must be exercised “in conformity with law. ” Curi el does not deny that
section 1596.885, subdivision (c) authorizes the department to revoke a license for conduct “inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility or the people of this state.” (§ 1596.885, subd. (c).) Curiel suggest ed that the s panking was a minor offense, but the trial court disagreed, given that the spanking was administered to a two

- year

- old child in a manne r that left a m ark that was visible hours later . I n any event, the trial court observed that the
license was revoked both bec ause of the s panking and because Curiel l ied about her12

interaction with the child’s parents . The trial court quoted with approval the ALJ ’s
conclusion that the protection of the public compelled license revocation because Curiel
was not remorseful and had provided “no evidence which would engender any confidence that this type of behavior would not occur again. ” The trial court fou nd that the record suppo rted these conclusions

. T he evidence again st Curiel was substantial and the penalty imposed was within the range of discretion accorded to the department for the protection of the public.
W e find no abuse of discretion

. DISPOSIT ION The j udgment is affirmed.

/S/ Mauro, Acting P. J.

We concur:

/S/ Murray, J.

/S/ Hoch, J.