Filed 5/5/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

TRI-COUNTIES 

ASSOCIATION FOR 

THE DEVELOPMENTALLY 

DISABLED, INC.,

 Plaintiff and Respondent, 

v. 

VENTURA COUNTY PUBLIC 

GUARDIAN, 

as Conservator, etc.,

 Defendant and Appellant;

A.V.,

 Real Party in Interest and 

Appellant.

2d Civ. No. B300557

(Super. Ct. No. 56-2018-

00511345-CU-WM-VTA)

(Ventura County)

A.V. came to the attention of Respondent Tri-Counties 

Regional Center1 in 2002 when it evaluated him at age 7 for 

1 We refer to respondent Tri-Counties Association for the 

Developmentally Disabled, Inc., dba Tri-Counties Regional 

Center as “Regional Center” throughout this opinion. 
2

autism, one of five qualifying conditions for services under the 

Lanterman Developmental Disabilities Services Act. (Welf. & 

Inst. Code, § 4500 et seq.; the “Act”).2 Its intake evaluators 

observed symptoms of Asperger’s Syndrome but did not consider 

his condition severe enough to qualify for services. 

A.V.’s next contact with the Regional Center came at age 19 

after he experienced a series of psychiatric emergencies. The 

agency noted symptoms of autism spectrum disorder (ASD), a 

condition which includes those individuals formerly diagnosed 

with Asperger’s. However, its evaluators attributed A.V.’s 

intensifying mental health problems to a non-qualifying 

condition, schizophrenia, that manifested after he reached the 

Act’s eligibility cut-off of age 18. They again denied services. 

A.V. appealed to the Department of Developmental 

Services (DDS). An administrative law judge (ALJ) specially 

trained in “the law and regulations governing services to 

developmentally disabled individuals” overturned the denial after 

a lengthy proceeding conducted under the Act’s fair hearing 

procedures. (§ 4712, subd. (b).) The ALJ found A.V. met the

statutory criteria for developmental disability: he had a 

qualifying condition of autism, i.e., ASD; his ASD was 

substantially disabling; and the condition originated before age 

18. (§ 4512, subd. (a).) The ALJ rejected the Regional Center’s 

argument that a qualifying condition must not only originate but

must also become “substantially disabling” before age 18. 

The superior court reversed the fair hearing decision after 

the Regional Center petitioned for a writ of administrative 

2 Unlabeled statutory references in this opinion are to the 

Welfare and Institutions Code.
3

mandamus. The court agreed with the ALJ’s decision to the 

extent it found a claimant’s qualifying condition need not become 

substantially disabling before age 18. There it parted ways. The 

court found the ALJ erred by weighing the parties’ evidence “on 

an even playing field” rather than deferring to the Regional 

Center’s opinions about A.V.’s eligibility for services under the 

Act. It entered judgment against A.V. and his conservator, who 

now appeal. 

We conclude the superior court erred when it deferred to 

the Regional Center’s eligibility determinations. A fair hearing 

under the Act is just that – an even playing field on which the 

participants present their evidence to an impartial hearing 

officer. The superior court owed deference not to the Regional 

Center’s evaluators but to the administrative process created to 

fairly resolve disputes over eligibility for services. 

We reverse the judgment and direct the superior court to 

review the petition under the appropriate standard on remand.

3

FACTUAL BACKGROUND

A.V. grew up in Simi Valley, California. Significant 

behavioral problems arose early in his life. Elementary school 

teachers observed him vacillate between near-catatonia and 

intractable mischief. Tests administered by Simi Valley Unified 

School District (SVUSD) in 2001, at age 7, supported a diagnosis 

of Asperger’s Syndrome and revealed “significant deficits in his 

3 Neither appellant nor respondent appeal the superior 

court’s finding that a claimant’s qualifying condition need not 

become substantially disabling before age 18 to constitute a 

developmental disability under section 4512, subdivision (a). As 

such, our opinion does not consider this question of statutory 

interpretation.
4

verbal and nonverbal communication and social interaction that 

adversely affect his educational performance.” This behavior 

prompted A.V.’s parents to apply for developmental services 

through the Regional Center. Regional Center evaluators 

likewise observed symptoms of Asperger’s Syndrome but 

determined the minor did not have substantially disabling 

autism or another condition that would qualify him for services 

under the Act. Nevertheless, SVUSD found A.V. eligible for 

special education under the category of “Emotional Disturbance,” 

and in later grades, under the category of “Autism.” It developed 

an Individualized Education Plan (IEP) and placed A.V. in a 

specialized public school setting from the first grade onward. 

A.V.’s most disruptive behaviors subsided by high school. 

His teachers described him as a polite student who enjoyed 

discussing science and history in class. He could read and write 

at grade level, but his slow processing speed and distractibility 

prevented him from keeping up in general education courses. He 

graduated in 2013 despite these challenges and began a program 

at Moorpark College for students with disabilities. 

A.V.’s mental health deteriorated soon after he left high 

school. Police found him incoherent and hallucinating in a 

discount store bathroom in June of 2014. He complained to 

emergency room staff about hearing voices and feeling “numb” in 

his brain. Physicians transferred him to Las Encinas Mental 

Health Hospital in Pasadena on a section 5150 hold.4 He 

4 Welfare and Institutions Code section 5150, subdivision 

(a) permits peace officers and designated mental health 

professionals to take persons considered a danger to self or others 

into custody “for a period of up to 72 hours for assessment, 

evaluation, and crisis intervention.”
5

received a week of inpatient treatment but returned to the 

emergency room four days later when he again heard voices. A 

second inpatient admission followed, this time at Del Amo

Hospital in Torrance. 

A.V.’s psychiatric condition eroded further when his 13-

year-old sister died in an apparent suicide in August of 2014. 

Now 19, he began leaving his home more frequently and 

wandering around Simi Valley half-dressed or naked. He twice 

ventured on foot to his former high school. Bystanders would 

often find him lying unresponsive on the ground following these 

episodes. Hillmont Psychiatric Center (Hillmont), the acute 

psychiatric unit of Ventura County Medical Center, assessed him 

42 times between August of 2014 and March of 2016. Twentytwo of these visits required inpatient admission. A.V. also 

received several weeks of inpatient care at Henry Mayo Newhall 

Memorial Hospital in Valencia and UCLA during this period. 

The superior court appointed his mother, and later appellant 

Ventura County Public Guardian (Public Guardian), as his 

conservator.5

Hillmont’s staff observed A.V. display repetitive, autistictype behaviors once his episodes of stress-induced psychosis 

subsided.6 They concluded A.V. would greatly benefit from the 

5 In the Matter of A.V. (Super. Ct. Ventura County, 2015, 

No. 56-2015-00468470-PR-CP-OXN).

6 This included behaviors such as “stimming” or selfstimulating by hand flapping; patterned pacing for hours at a 

time; acting out with staff to invoke placement in restraints; 

applying excessive hand sanitizer; and fixating on rigid routines 

and diet during his often-lengthy admissions.
6

type of intensive behavioral therapy provided through the 

Regional Center. Hillmont psychiatrist Dustin Sanchez, M.D. 

contacted Tri-Counties’ Director of Clinical Services, Steven 

Graff, Ph.D., and recommended they collaborate to provide A.V. a 

combination of psychiatric treatments and behavioral therapies.7 

Several in-person assessments by Tri-Counties evaluators 

followed. They observed symptoms of ASD8 but attributed his 

present disability to an adult-onset psychiatric illness induced by 

his sister’s death. They recommended Tri-Counties deny services 

because A.V. did not have a substantially disabling form of

autism or any other eligible diagnosis before he turned 18 – the 

7 Solely psychiatric disorders such as schizophrenia and 

major depressive order do not constitute developmental 

disabilities. (Cal. Code Regs., tit. 17, § 54000, subd. (c)(1).) 

However, the Act directs Regional Centers and county medical 

health agencies to cooperate when necessary to improve the 

“quality of mental health outcomes” of dually diagnosed 

individuals requiring both developmental and mental health 

services. (§ 4696.1, subd. (a).)

8 The concept of autism as a spectrum of conditions evolved 

significantly during the decade-plus between A.V.’s first and 

second evaluations. Mental health professionals largely 

discarded the discrete sub-diagnoses previously grouped within 

autism, such as Asperger’s and Rett Syndromes, in favor of 

“umbrella” diagnoses of ASD specified as mild (Level 1), moderate 

(Level 2), or severe (Level 3). (See, e.g., Barry, Gray Matters: 

Autism, Impairment, and the End of Binaries (2012) 49 San 

Diego L. Rev. 161, 214 [commenting on Asperger’s impending 

“disappear[ance] from the lexicon of the [American Psychological 

Association]” upon the transition from DSM-IV to DSM-V in 

2013].)
7

age cutoff for those seeking to establish eligibility for Regional 

Center services. 

PROCEDURAL HISTORY

Tri-Counties served a Notice of Proposed Action to deny 

A.V.’s eligibility in May of 2017. The Public Guardian appealed 

the decision by requesting a fair hearing under the Act. Matthew 

W. Goldsby, an ALJ with the Office of Administrative Hearings 

(OAH), conducted the hearing over six days.9 The parties 

introduced testimony from two psychiatrists, three psychologists, 

a pediatrician, a pharmacologist, two licensed social workers, a 

behavioral therapist, and a special education consultant. They 

submitted 166 exhibits relating to A.V.’s behavioral health, 

mental health, and education over the past 15 years. The 

administrative record exceeded 3000 pages. 

The ALJ issued a comprehensive and detailed 25-page 

decision at the close of evidence. He concluded A.V. proved his 

diagnosis of autism spectrum disorder as defined by the 

Diagnostic and Statistical Manual of Mental Disorders, Fifth 

Edition (DSM-V). He further found that A.V.’s disorder 

originated in childhood and became substantially disabling at age 

19. The ALJ rejected the Regional Center’s argument that a 

qualifying condition must both originate and become 

substantially disabling before age 18. He found A.V.’s acute 

psychiatric problems did not disqualify him from receiving

developmental services from the Regional Center: 

“‘Substantial evidence supports a finding that claimant has 

a diagnosis of autism spectrum disorder, a qualifying condition 

for regional center services. . . . Although claimant may have 

9 OAH is an independent office housed within California 

Department of General Services.
8

suffered “a psychotic break” and may currently suffer from an 

unspecified mental disorder, the regulations do not deny services 

to an individual with a psychiatric disorder, so long as the 

individual can also establish a qualifying condition under the 

Lanterman Act.’” (Underlining omitted.)

Tri-Counties sought review by petitioning for a writ of 

administrative mandate. (Code Civ. Proc., § 1094.5.) The 

superior court rejected the Regional Center’s argument that a 

claimant’s condition must become substantially disabling before 

age 18 to be eligible for services. It nevertheless reversed the 

ALJ’s decision because his analysis “accorded no significant 

weight or deference to the [Regional Center] professionals who 

evaluated [A.V.’s] entire clinical history.” The superior court 

found the testimony of Regional Center professionals “to strongly 

predominate” on the issue of A.V.’s diagnosis and criticized the 

ALJ for “substitut[ing] his own judgment for that of the [Regional 

Center] professionals” by applying DSM-V’s autism criteria. It 

granted the petition and entered judgment in favor of the 

Regional Center. The Public Guardian appealed the judgment on 

A.V.’s behalf. 

DISCUSSION

Standard of Review

We review the superior court’s judgment for substantial 

evidence. (Harbor Regional Center v. Office of Administrative

Hearings (2012) 210 Cal.App.4th 293, 304, citing Mason v. Office

of Admin. Hearings (2001) 89 Cal.App.4th. 1119, 1130 (Mason).) 

“[W]e exercise independent review to the extent we determine 

legal issues such as the interpretation of statutes and 

administrative regulations.” (Harbor Regional Center, at p.304
9

citing Silver v. Los Angeles County Metropolitan Transportation 

Authority (2000) 79 Cal.App.4th 338, 348.)

Establishing Eligibility for Regional Center Services

Under the Lanterman Act

The Act seeks to integrate developmentally disabled

Californians into mainstream life and to ensure they are 

accorded equal access to programs receiving state funds. (§§ 

4501, 4502; see Association for Retarded Citizens v. Department 

of Developmental Services (1985) 38 Cal.3d 384, 389-391.) DDS is 

the agency charged with implementing the Act. (§§ 4434, 4629, 

4635; Ronald F. v. State Dept. of Developmental Services (2017) 

8 Cal.App.5th 84, 94 (Ronald F.).) In turn, DDS contracts with 

21 private non-profit corporations called Regional Centers to help 

disabled individuals secure “those services and supports which 

maximize opportunities and choices for living, working, learning, 

and recreating in the community.” (§ 4640.7, subd. (a).) TriCounties is the Regional Center serving the counties of Ventura, 

Santa Barbara, and San Luis Obispo.

One must have a “developmental disability” to qualify for 

Regional Center services. The Act defines the term as a condition 

“that originates before an individual attains 18 years of age, 

continues, or can be expected to continue, indefinitely, and 

constitutes a substantial disability for that individual.” (§ 4512, 

subd. (a); see Cal. Code Regs., tit. 17, § 54000.) Autism is one of 

five conditions that may establish an individual’s eligibility.10 

10 The four other conditions include intellectual disability, 

cerebral palsy, epilepsy, and what are referred to as “fifth 

category” conditions, i.e., “disabling conditions found to be closely 

related to intellectual disability or to require treatment similar to 
10

(§ 4512.) Neither the Act nor DDS regulations define the term 

“autism.” Instead, the Regional Center’s intake coordinators 

assess eligibility using diagnostic criteria developed by the 

organization’s mental health professionals. (§ 4642, subd. 

(a)(1).)11 The Regional Center then notifies claimants whether 

they are eligible for services under one or more qualifying 

categories. 

Successful claimants obtain an Individual Program Plan 

(IPP). The IPP may include services such as speech therapy and 

social skills training for children and employment programs and 

transportation for adults. Unsuccessful claimants may appeal 

the Regional Center’s decision by requesting a “fair hearing.” 

(§ 4706, subd. (a).) The Act requires DDS to promulgate hearing 

procedures and to provide independent hearing officers to decide 

the appeals. (§§ 4705, subd. (a)(1), 4710.5, 4712, subd. (b); Cal. 

Code Regs., tit. 17, § 50900 et seq.) DDS contracts with the OAH 

to provide these hearing officers. The ALJs assigned to DDS 

matters must complete training in “the [Act] and regulations 

adopted thereunder, relevant case law, information about 

that required for individuals with an intellectual disability.” 

(§ 4512, subd. (a).)

11 We grant appellants’ December 15, 2020 unopposed 

request for judicial notice of four DDS publications: (1) the Client 

Development Evaluation Report Field Manual; (2) Autistic 

Spectrum Disorders: Changes in The California Caseload An 

Update: 1999-2003; (3) Quarterly Consumer Characteristics 

Report Index for the End of September 2020; and (4) the Glossary 

of Terms. We previously granted the unopposed request for

judicial notice of amicus curiae Association of Regional Center 

Agencies, Incorporated, in our order dated January 21, 2021.
11

services and supports available to persons with developmental 

disabilities, including innovative services and supports, the 

standard agreement contract between the department and 

regional centers and regional center purchase-of-service policies, 

and information and training on protecting the rights of 

consumers at administrative hearings . . . .” (§ 4712, subd. (b).)

DDS Hearing Officers Need Not Defer to the Eligibility 

Determinations of Regional Center Evaluators

The superior court found the ALJ abused his discretion by 

failing “to give substantial weight and deference to [the Regional 

Center’s] evaluation, assessment, and determination that [A.V.] 

does not suffer from autism within the meaning of section 4512, 

subdivision (a).” It concluded ALJ reached the wrong result 

because it weighed the evidence of both sides “on an even playing 

field” instead of giving Regional Center professionals “the weight 

and deference they are due.” 

The ALJ owed them no such deference. The only deference

the Regional Center enjoyed at the hearing was A.V.’s burden to 

prove his eligibility by a preponderance of the evidence. (§ 4712, 

subd. (j); see Lindsay v. County of San Diego Retirement Board

(1964) 231 Cal. App. 2d 156, 161-162, citing Albonico v. Madera 

Irr. Dist. (1960) 53 Cal.2d 735 [“A party having the burden of 

proof before an administrative agency must sustain that burden, 

and it is not necessary for the agency to show the negative of the 

issue when the positive is not proved”].) One’s affiliation with a 

Regional Center does not bolster their credibility. The cases cited 

by the superior court do not place an evidentiary halo on any 

witness. (Ronald F., supra, 8 Cal.App.5th 84; Samantha C. v. 

State Dept. of Developmental Services (2010) 185 Cal.App.4th 

1462; Mason, supra, 89 Cal.App.4th 1119.) 
12

In reversing the ALJ’s decision, the superior court wrote

“[i]t was not for the hearing officer to substitute his own 

judgment for that of the [Regional Center] professionals . . . 

[l]ikewise, it is not for this Court to substitute its judgment for

that of the [Regional Center] professionals in determining 

whether [A.V.] does or does not suffer from autism.” This 

conflates the roles of DDS fair hearing officers and superior court 

judges. The initial eligibility determinations of California’s 21 

service agencies remain subject to review by DDS consistent with 

its statutory directive to “oversee the [Regional Center]’s 

assessment of eligibility and provision of services.” (Mason, 

supra, 89 Cal.App.4th at p. 1127.) Fair hearing officers are 

DDS’s internal arbiters of disputed eligibility claims, not judicial 

interlopers. (§ 4712.5, subd. (a) [ALJ’s written rulings constitute 

DDS’s “final administrative decision”], § 4712.7 [“the director 

may delegate his or her authority to adopt final decisions under 

this chapter to hearing officers described in subdivision (b) of 

Section 4712”].) The line of cases cited by the superior court 

espouses deference to the administrative system created to 

implement the Act, not to Regional Center professionals 

specifically. (Mason, at p. 1129.) 

The deference owed to a Regional Center psychologist is not 

distinct from, or superior to, that owed to an ALJ tasked with 

making DDS’s final eligibility determination. Each serves an 

important function delegated to them under the Act. The fair 

hearing process serves as a check on Regional Centers’ 

considerable discretion to both develop and implement eligibility 

criteria under the Act. The ALJ did not abuse his discretion by 

weighing the evidence on an even playing field. Doing so 

confirms he performed his duties impartially. 
13

Courts Must Accord a Strong Presumption of Correctness to the 

Eligibility Determinations of DDS Hearing Officers

The Administrative Adjudication Bill of Rights directs 

courts to “give great weight to the determination” of a DDSappointed ALJ “to the extent the determination identifies the 

observed demeanor, manner, or attitude of the witness that 

supports it.” (Govt. Code, § 11425.50, subd. (b).) This “strong 

presumption of correctness” applies even where, as here, the 

superior court exercises its independent judgment to determine 

whether the weight of the evidence supports the agency’s 

findings. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) 

The superior court recites this presumption twice in its 

statement of decision. These references, however, conflict with 

the erroneous standard of review woven into the decision’s fabric. 

This conflict is evident where the superior court discredits the 

ALJ’s finding that A.V.’s treating psychiatrist was “more 

believable” on the stand than Regional Center professionals “who 

evaluated A.V.’s entire clinical history.” Indeed, making such 

credibility determinations was precisely what the Act required 

the hearing officer to do. The superior court’s sweeping 

conclusion that the evidence “strongly predominates” against 

A.V.’s autism diagnosis demonstrates this error colored the

court’s review of a lengthy and nuanced administrative record. 

“[W]e cannot properly review the trial court’s findings and 

decision for substantial evidence” when those findings are 

“infected by fundamental error.” (Fukuda v. City of Angels,

supra, 20 Cal.4th at p. 824.) We will instead reverse the 

judgment and instruct the superior court to apply the correct 

standard when reviewing the ALJ’s decision and the 

administrative record on remand.
14

The ALJ Correctly Relied on DSM-V’s Diagnostic Criteria 

for Autism Spectrum Disorder to Determine A.V.’s Eligibility for 

Regional Center Services

The superior court likewise erred when it criticized the ALJ 

for “engraft[ing]” DSM-V’s autism criteria onto the Act instead of 

deferring to the criteria established by Regional Center 

professionals. The decision to integrate DSM-V criteria into the 

eligibility analysis was well within the ALJ’s discretion. The Act 

did not require him to view the Regional Center’s internally 

promulgated criteria as the controlling definition of an undefined 

statutory term. Indeed, we question how DDS could provide fair 

and impartial hearings if it did not permit hearing officers to 

scrutinize the diagnostic standards of front-line evaluators. 

The record shows the ALJ structured his analysis around 

DSM-V because the parties agreed it was the appropriate 

standard for assessing A.V.’s eligibility. The Regional Center 

took the position A.V. did not qualify for services because his 

purported qualifying diagnoses, even if established under DSMV, did not become “substantially disabling” until he reached 

adulthood. The mandamus petition and primary supporting brief 

took the same tack and fared no better on mandamus. Assuming 

arguendo the ALJ errantly incorporated DSM-V into his decision, 

the Regional Center invited the error. (See Santa Clara Waste 

Water Co. v. Allied World National Assurance Co. (2017) 18 

Cal.App.5th 881, 888, citing Jentick v. Pacific Gas & Electric Co.

(1941) 18 Cal.2d 117, 121 [“Under the invited error doctrine, a 

party cannot challenge a court’s finding made at its insistence”].) 
15

CONCLUSION

The judgment is reversed. We direct the superior court to 

review the petition on remand using the standard set forth in this 

opinion. Appellants shall recover their costs on appeal.

CERTIFIED FOR PUBLICATION.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J. 
16

Matthew P. Guasco, Judge

Superior Court County of Ventura

______________________________

Leroy Smith, County Counsel, Mitchell B. Davis, Assistant 

County Counsel; Disability Rights California, William Leiner, 

Autumn Elliot, Nishanthi Kurukulasuriya and Melinda Bird for 

Defendant and Appellant and for Real Party in Interest and 

Appellant.

Benton, Orr, Duval & Buckingham, Bruce Alan Finck and 

Donald R. Wood for Plaintiff and Respondent.

Enright & Ocheltree, Aaron Abramowitz and Noelle V. 

Bensussen for Association of Regional Center Agencies, 

Incorporated, as Amicus Curiae.