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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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. 

34201180000810CUWMGDS)

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

care license of plaintiff Yvonne Curiel1 because it found, after an administrative hearing, 

that a child in her care was spanked and Curiel made false statements about it to an 

investigator. Curiel has consistently claimed she never struck the child. The 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.
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the evidence. The trial court also found the department did not abuse 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 fraudulently altered attendance logs -- which was not asserted at the 

administrative hearing; (2) 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; 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 discretion, we will affirm the judgment.

BACKGROUND

The department licensed Curiel in 1997 to operate a family child care home in San 

Francisco. Health and Safety Code section 1596.8852 provides that the department may 

revoke a child day care license for the following 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 

regulations 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 department began the process of revoking Curiel’s license 

by issuing a formal accusation. The department alleged that on or about September 21, 

2009, Curiel violated section 1596.885, subdivisions (a) and (b), when a child in her care 

“incurred an injury, which appears as a handprint, while at the facility.” The accusation 

cited implementing regulations requiring constant supervision of children and providing 

each child in a licensed facility a right to be free from corporal punishment. (Cal. Code 

Regs., tit. 22, §§ 102417 &102423, subd. (a)(4).) The accusation further 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.

An administrative law judge (ALJ) conducted an evidentiary hearing 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 Curiel’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 

spanking children and understood 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 only 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. The 
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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 the department sent an 

investigator. The investigator testified that when she arrived at Curiel’s home to begin

the investigation, Curiel promptly said she knew what the investigation was about and 

handed over a handwritten letter. The letter was allegedly given to the victim’s mother 

on September 21 to document 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 picked up the child that day and that Curiel made calls to the mother to find out why 

she 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 who 

picked up the child. The witness also acknowledged inconsistencies in his recollection 

and the evidence maintained by his employer. The 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 mother picked up 

the child that day and had never asked to borrow money from Curiel. The parents denied 

that Curiel told them their child cried too much or would be terminated from child care 

and the mother also denied ever receiving mail or telephone calls from Curiel. The 

investigator did not call Curiel a liar but believed the evidence against 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 Curiel made uncorroborated and false 

statements about who picked up the child, about whether she gave a two-week notice to 
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the child’s mother, and about whether the mother requested a $600 loan. The ALJ found 

the child’s injury happened while the child was under Curiel’s care and supervision. 

Observing that Curiel had been a licensed child care provider for 14 years without 

incident 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 liar” 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 became 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 findings and determinations. It found substantial evidence 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 denial 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 ruling 
6

concluded the mother picked up the child that day. The trial court did not make a finding 

that anyone had forged attendance logs, but in a footnote it noted that the parties had 

discussed a “sign-out sheet.” The trial court said that discussion was “not particularly 

relevant” because the mother and Curiel testified the mother signed the sheets a week 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 

evidence 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 

spanked the child by the department’s argument that Curiel altered the child’s attendance 

logs, but the record does not support her argument. She cites no supporting evidence, and 

in fact the 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 picked 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 trial court explained why the discussion regarding the sign-out 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 credible. Weighing 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 applied the correct test and cited reasons for finding Curiel not 

credible. An appellate court reviewing a license revocation must sustain the trial court’s 

findings if they are supported by substantial evidence and must resolve conflicts in favor 
7

of the prevailing party. (Kazensky v. City 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 administrative 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 determination. (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 what 

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 only seven 

weeks, for $600 for a dance class; (2) the referring 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 the 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 

daughter could corroborate her story.

A credibility determination was necessary in this case. Either Curiel told the truth 

and the parents lied or the parents told the truth and Curiel lied. As we have said, the trial 

court cited substantial evidence for disbelieving Curiel, all documented by references to 

the record, and none mentioning the attendance logs. Curiel refers in her brief to 

evidence in the record that could have supported a contrary conclusion, but it is not our 
8

role to reweigh the evidence and draw new conclusions. There was substantial evidence 

to support the trial 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 department’s investigator was biased and resulted in 

a denial of due process.

Curiel’s counsel cross-examined the investigator 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 

thoroughly explored specified evidence favorable 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: Uh-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.

“[Witness 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 Curiel]: 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 nothing 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 

not allowed to establish that the investigator was “hostile and biased against her,” but the 

trial court disagreed, pointing out that Curiel not only offered no evidence that the 

investigator told other parents not to send children to Curiel, she offered no evidence the 

investigator was biased at all. The trial court observed that the ALJ had broad discretion 

to limit cross-examination on collateral matters such as the actions of unidentified 

representatives of the department, especially 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 criminal 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 forth 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 issues 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 objection in civil actions.” (Gov. Code § 11513, 

subd. (c).) These provisions permit relevant 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 even relevant evidence “if its probative value is substantially 

outweighed by the probability that its admission will necessitate undue consumption of 

time.” (Gov. Code § 11513, subd. (f).)

On appeal, we review a trial court’s ruling on the admissibility of 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 the ALJ that questions about whether “the department” steered

parents away from Curiel’s care at the time of the hearing had no apparent relevance to

whether the investigator was biased while interviewing witnesses many months earlier. 

(See City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 782 [witnesses in 

administrative proceeding have no duty to respond to inquiries that cannot serve to prove 
11

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 questioning on bias was limited.

III

Curiel further contends the trial court concluded 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 

inconsequential. Curiel’s suggestion that the trial court improperly relied 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.App.3d 961, 966.) A reviewing 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 license 

revocation is drastic and the principle that judicial discretion in the administration of

penalties must be exercised “in conformity with law.” Curiel 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 suggested that the spanking was a minor offense, but the trial court 

disagreed, given that the spanking was administered to a two-year-old child in a manner 

that left a mark that was visible hours later. In any event, the trial court observed that the 

license was revoked both because of the spanking and because Curiel lied about her 
12

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 found that 

the record supported these conclusions.

The evidence against Curiel was substantial and the penalty imposed was within 

the range of discretion accorded to the department for the protection of the public. 

We find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

 /S/

Mauro, Acting P. J.

We concur:

 /S/

Murray, J.

 /S/

Hoch, J.