Filed 8/14/17 Doe v. San Francisco Housing Authority CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR



JOHN DOE,
Plaintiff and Appellant,
v.
SAN FRANCISCO HOUSING AUTHORITY et al.,
Defendants and Respondents. A144456 & A146029

(San Francisco City & County
Super. Ct. No. CPF-13-513331)




In an effort to reverse the San Francisco Housing Authority’s (SFHA) decisions denying him Section 8 housing assistance, appellant John Doe sought both a writ of administrative mandate and a writ of ordinary mandate from the superior court. In these consolidated appeals, Doe now challenges the trial court’s denial of writ relief and the ensuing judgment entered against him. We affirm.
I. BACKGROUND
A. Doe’s Section 8 Housing in Cambridge and in San Francisco and Doe’s Disability Income
1. The Transfer of Doe’s Section 8 Voucher to San Francisco
In 2002, the Cambridge Housing Authority (CHA) granted Doe a Section 8 voucher for housing assistance which included permission for a live-in aide as a reasonable accommodation for disability. In 2004, Doe moved from Cambridge to San Francisco, transferring his Section 8 voucher along with him. As explained in a subsequent decision by an SFHA hearing officer, Doe’s voucher was “absorbed by and became an SFHA Housing Choice Voucher” upon receipt of verification from CHA, establishing “to [SFHA’s] satisfaction [Doe’s] entitlement to accommodations for a live-in aid [sic].” “Since about 2004, [Doe] has received a Section 8 [SFHA Housing Choice voucher] which has allowed him to reside in a 2 bedroom below market rent . . . unit with current rent of $1,650/month.”
“When [Doe] relocated there was some confusion about his entitlement to the voucher. Although [SFHA] initially noted irregularities between the amount [Doe] claimed was his income and the independent verifications received, ultimately [CHA] confirmed the porting of the voucher [to San Francisco] and [Doe] was provided with a two-bedroom” SFHA Housing Choice voucher. “During the porting process, [CHA] advised that [Doe] had been receiving a one bedroom in Cambridge but had established to their satisfaction entitlement to accommodations for a live-in aid [sic]. No documentation of [CHA’s] reasons for this decision” was provided to SFHA, however.
“On August 10, 2004, around the time of his relocation to San Francisco, [Doe] provided SFHA with a letter from Dr. David Levine, MD which recommended that [he] be provided a live-in worker. No reasons other than, ‘he was able to live-in Cambridge with the help of a live-in worker’ were given [by Dr. Levine] for the need for the live-in aid [sic].”
2. Doe’s Disability Income
In 1999, Doe began collecting payments from First Unum Life Insurance Company (First Unum) under his disability policy amounting to almost $60,000 per year; the payments are ongoing and will continue until 2036. When he signed a declaration as part of an annual reexamination in 2011 (Section 8 declaration) (42 U.S.C. § 1437f(o)(5)), he was also eligible for social security benefits of approximately $15,000 annually, although he has declined those benefits. To manage his insurance payout from First Unum, Doe created two “irrevocable” special needs trusts, the Stein Trust on November 1, 1999 and the Klondike Trust on January 1, 2006.
For each trust, Doe is the settlor and trustee and Doe’s uncle, Al, is the beneficiary. Both trusts allow the beneficiary to change, as the trusts can “substitute via will the beneficiary upon his death or the death of Al.” On August 8, 2010, Doe assigned his entitlement to benefits from First Unum to the Klondike Trust, whereas the Stein Trust was never assigned any funds. The payments from the First Unum insurance policy are deposited in an ETrade account controlled by Doe. No money has ever been paid out to Doe’s uncle.
B. SFHA’s Inquiry into Doe’s Income
Part of the Section 8 declaration is an acknowledgement from Doe—requiring a signature that he provided—agreeing he understands that “knowingly supplying false, incomplete, or inaccurate information is grounds for termination of housing assistance.” Under the SFHA Housing Choice Administrative Plan, chapter 6, subsection 6-I.H, periodic payments are included in calculating annual income; examples provided are “social security, unemployment and welfare assistance, annuities, insurance policies, retirement funds, and pensions.”
In October 2011, Doe stated as part of the Section 8 declaration he completed as part of an annual reexamination that he was the only occupant of his unit. He also indicated his monthly income was $200 from food stamps and did not report he owned any stocks, bonds, or annuities. SFHA sent Doe a notice on December 13, 2012, notifying him that he had reported a change in his income or household composition by stating he was the only occupant in his unit in the Section 8 declaration. SFHA reduced the subsidy provided. The reduction was based on the fact that Doe’s income had changed, and that he no longer required a second bedroom. The letter also informed Doe that he could request an informal hearing, but that he must ask for one within 14 days. The record does not reflect that Doe requested a hearing within this timeframe.
In April and May 2013, Doe’s father wrote several times to someone at SFHA about the reduction in Doe’s subsidy. On May 31, 2013, SFHA sent another letter which informed Doe that SFHA had “completed the required re-examination of [his] family composition and found [him] ineligible for a 2-bedroom voucher.” On the same day, SFHA mailed Doe a different letter which stated SFHA would no longer pay a subsidy to the landlord due to the recertification of his subsidy, stated Doe had six months to show a change in his income to maintain the voucher, and informed him that he had to request an informal hearing within 10 days or lose that right.
1. Doe’s Request for Accommodation
On July 17, 2013, Doe’s father complained to SFHA that Doe never received notice that he needed to submit an application for a live-in aide, which, if timely filed, could have prevented Doe’s ineligibility. Following this complaint, SFHA attempted to work with Doe to determine if he was eligible for a live-in aide, and on July 24, 2013, Doe signed a “Request for Reasonable Accommodation” to show his need for live-in assistance, again presenting the 2004 letter written by Dr. Levine. As noted above, however, that letter did not explain why Doe needed live-in assistance.
Doe then provided a second doctor’s letter, this one from a Dr. Lam, dated August 7, 2013, stating Doe was his patient and that a live-in aide would keep him functional. But Doe categorically refused to sign an authorization allowing SFHA to contact Dr. Lam to verify Doe’s need for live-in assistance. As noted in the Section 8 declaration, a refusal to cooperate and provide written consent for the SFHA to certify one’s need “may result in . . . termination of assistance.” Because of Doe’s refusal, the SFHA was unable to verify if Doe needed a live-in aide, and did not approve him for a two-bedroom voucher.
2. First Administrative Hearing on August 14, 2013
Doe requested and received an informal hearing concerning SFHA’s May 2013 notices to him and his July 2013 request for accommodation. At that hearing, Doe raised four objections. First, Doe argued he was never informed that he needed to submit a request for a reasonable accommodation (for a live-in aide) and because of that, his voucher should be reinstated. Second, Doe complained that SFHA was not allowed to terminate his assistance until a hearing occurred, but had terminated it on July 1, 2013. Third, Doe argued the hearing officer should allow his reasonable accommodation based on Dr. Levine’s letter without requiring any additional verification of his disability. Fourth, Doe argued SFHA was not entitled to ask about his disability because it is “obvious or otherwise known.” Finally, Doe complained that the May 31, 2013 letters were defective because they did not provide the basis of the reduction, calculated the termination timing incorrectly, and did not provide notice that he could request a hearing or an explanation of the SFHA’s decision.
The hearing officer requested that Doe authorize SFHA to contact his health service provider, a step that would allow the processing of a live-in aide to begin. The hearing officer also ordered that the accommodation begin in September 2013 pending a further and final decision once the hearing was completed. In the meantime, the hearing was continued to September 24, 2013. Prior to the September 24 hearing, SFHA notified Doe on September 5, 2013 that his request for a reasonable accommodation for a two-bedroom voucher was denied because Doe had not authorized SFHA to contact his medical provider to verify that Doe had a disability. The letter stated, “[i]n the absence of verification of your disability and the connection between your disability and the requested accommodation, the SFHA could not approve your request.”
3. Second Administrative Hearing on September 24, 2013
At the September 24, 2013 hearing, Doe reiterated his position that he did not need to authorize SFHA to contact his physician, while SFHA adhered to its insistence that verification is required to approve an accommodation request. The topic of Doe’s monthly insurance payments and trusts arose at this second hearing session on September 24. Doe’s position was that he had given away all of the income when he placed it in a special needs trust for his uncle and that it was error for SFHA to consider the monthly insurance payments as his income. Doe affirmed that he is the trustor, trustee, and controller of the funds and that nothing had been paid to his uncle out of either trust. In response to an inquiry by the hearing officer, Doe explained the reason for putting the money in a trust was because “if [he] actually collected the $60,000, [he would] actually get less money than [he is] getting now.”
4. The Hearing Officer’s Decision
Following the September 24 hearing, the hearing officer issued a written decision on October 16, 2013. She concluded that in determining Doe’s eligibility for Section 8 assistance, SFHA could properly consider Doe’s private disability income and his entitlement to monthly social security. Additionally, the hearing officer concluded that SFHA was entitled to verify Doe’s need for a live-in aide before authorizing a reasonable accommodation, and since Doe refused to authorize contact with his physician, SFHA was justified in refusing to grant the accommodation. After Doe’s request for yet another hearing was denied, SFHA sent Doe notice that he was “[n]o longer eligible to participate in the program due to intentional program violation” and that the Section 8 voucher would be cancelled on January 18, 2014. That cancellation triggered these proceedings.
C. Procedural History in Superior Court
In the trial court and here on appeal, Doe, a disabled former lawyer, has appeared in propria persona.
On November 14, 2013 Doe filed a petition for a writ of mandate accompanied by a request for preliminary injunctive relief. Following the denial of preliminary injunctive relief, the parties eventually joined issue based on an operative pleading filed June 18, 2014 in which Doe named as defendants SFHA, Charles Akhidneor, Linda Martin, Andrea Agho, Frank Perez, Barbara Smith, and the San Francisco Department of Social Services (collectively, Respondents). That pleading, styled “Amended Petition + Complaint,” requests a writ of administrative mandamus under Code of Civil Procedure section 1094.5 and a writ of ordinary mandate under section 1085 in separately pleaded claims.
The trial court denied both forms of writ relief, ordered dismissal of the action, and, on June 10, 2015, entered judgment for Respondents. Doe filed separate notices of appeal from the judgment and from the denials of writ relief, and we ordered the appeals consolidated on a single record for purposes of briefing and any argument. The consolidated appeals raise three claims of error. First, Doe appeals the trial court’s December 29, 2014 order denying his request for a “Writ of Administrative Mandate Reversing the Hearing Decision.” Second, Doe appeals the denial of his request for a “Writ of Mandate,” dated November 5, 2014, seeking an order directing SFHA to go forward with the processing of a proposed live-in aide. Third, Doe appeals the judgment against him.
II. DISCUSSION
A. Doe’s Request for a Writ of Administrative Review Was Properly Denied
“ ‘[S]ection 1094.5 provides a trial court reviewing the decision of an administrative agency exercises its independent judgment in reviewing the evidence and that an “abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” [Citation.] Under the independent review standard, the trial court may weigh the credibility of witnesses.’ [Citation.] [¶] Though the trial court is required to exercise its independent judgment on the evidence, it is to give a ‘strong presumption of correctness’ to [administrative] findings. [Citations.] In a proceeding on a writ of administrative mandate, ‘the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.’ ” (San Diego Unified School District v. Commission on Professional Competence (2013) 214 Cal.App.4th 1120, 1140 (San Diego Unified).) When this independent judgment standard does not apply because no “ ‘ “fundamental vested right” ’ ” is involved, the trial court “ ‘must review the whole administrative record to determine whether the findings are supported by substantial evidence and whether the agency committed any errors of law.’ ” (MHC Operating Ltd. Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 217.)
“ ‘ “After the superior court makes an independent judgment upon the record of an administrative proceeding, [the] scope of review on appeal is limited.” [Citation.] We must sustain the trial court’s findings if they are supported by substantial evidence.’ ” (San Diego Unified, supra, 214 Cal.App.4th at p. 1141.) Similarly, in cases in which the trial court reviews the administrative decision for substantial evidence rather than using the independent judgment standard, we also apply the substantial evidence standard on appeal, although our focus is on the findings made by the agency rather than those made by the superior court. (MHC Operating Ltd. Partnership v. City of San Jose, supra, 106 Cal.App.4th at p. 218.)
Doe argues the trial court incorrectly used the substantial evidence standard of review, when it should have used the independent judgment standard since the right to receive public assistance is fundamental. We need not decide whether Doe had a vested right to a Section 8 housing subsidy, because the record does not establish a reasonable probability that a result more favorable to Doe would have been reached if the trial court had applied the independent judgment test. (Cf. Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 372–373.) Doe has not shown the administrative factual findings were against the weight of the evidence or unsupported by substantial evidence.
Doe makes essentially three arguments for reversal. First, he contends the hearing officer incorrectly found him ineligible for Section 8 housing vouchers. According to Doe, based on the incorrect premise that his disability payments should be included in the Section 8 voucher calculations, the hearing officer concluded that his income “is sufficient to reduce his housing assistance payment to zero and to terminate his program eligibility as of December 1, 2013.” We see no reason to overturn the hearing officer’s ineligibility determination. In evaluating Doe’s income, she concluded Doe’s intention in creating the special needs trusts was to “enable his own personal gain from the public trough.” “By his convoluted reasoning,” she found, Doe wishes to claim “poverty, to deny that he is entitled to his private disability income . . . [and] to claim no access to [those] funds . . . .” His “position is that it is okay to give away his monthly wages to a third party and to fashion himself as eligible for public benefits with no responsibility for supplementing or reimbursement.” In short, she concluded his special needs trusts were a sham and a scheme to defraud the public. On appeal, Doe continues to insist the trusts are proper and the income should not be included in his voucher calculations, but we are satisfied that, on this record, the hearing officer was justified in finding to the contrary.
Second, Doe challenges the hearing officer’s determination that he was not entitled to a two-bedroom apartment. When Doe certified he was the only household member living in his two-bedroom apartment, he invited an inquiry into whether SFHA should continue to provide him with a two-bedroom voucher. Finding that Doe repeatedly failed to complete paperwork required for the authorization of a live-in aide—a requirement for proving he was eligible for an accommodation that would allow him to retain a two-bedroom voucher—the hearing officer concluded SFHA properly denied Doe’s requested accommodation. Doe argues he should not have been required to complete the paperwork and authorization because he is eligible for federal social security benefits and that is enough to prove he is disabled. But the SFHA Administrative Plan explicitly requires SFHA to verify that Doe “meets the definition of a person with a disability, and that the limitations imposed by the disability require the requested accommodation.” (SFHA Admin. Plan, § 2-II.D.) Doe prevented the SFHA from taking the steps required for the agency to make this verification. The trial court’s decision to uphold the hearing officer’s determination is justified by the record.
Third, Doe makes various arguments about alleged lack of notice. He contends he did not receive proper notice of his rights and that the timing of one notice was incorrect. In three letters Doe received, only two provided proper notice that Doe was entitled to an informal hearing. However, the hearing officer found that the error was harmless because the lack of notice was regarding Doe’s request for a reasonable accommodation, a process SFHA continued to pursue, working with Doe, well past the date of the letter and throughout the hearing process. Additionally, Doe complained that his benefits were prematurely terminated; he claims he was entitled to benefits until the hearing officer issued a decision. While Doe correctly states SFHA’s rule governing continuation of benefits, he failed to request a hearing seeking such a continuation within 10 business days, which was required by the terms of the rule. (SFHA Admin. Plan, § 16-III.C.) Thus, the hearing officer’s Section 8 ineligibility determination finds ample support in the record.
B. Doe’s Request for a Writ of Mandate Was Properly Denied
“A traditional writ of mandate under . . . section 1085 is used to compel a public entity to perform a legal and usually ministerial duty. [Citation.] The trial court reviews the challenged administrative action to determine whether it was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires. [Citation.] On appeal, the trial court’s factual findings must be upheld if they are supported by substantial evidence. However, legal issues present a question of law that this court reviews de novo on appeal.” (Shelden v. Marin County Employees’ Retirement Association (2010) 189 Cal.App.4th 458, 463.)
As noted above, Doe’s “Amended Petition + Complaint” pleads separate claims for administrative mandamus and for ordinary mandate. His request for writ relief under section 1085 seeks to compel SFHA to do a specific act—respond in writing to Doe’s reasonable accommodation request. The trial court denied the request for section 1085 relief as moot, because “the San Francisco Housing Authority’s hearing officer determined that Doe’s income exceeded the eligibility standards and he was not eligible to receive a Section 8 housing subsidy.”
We need not address the issue of mootness or consider whether this aspect of the trial court’s decision is supported by substantial evidence, because the result the court reached in denying section 1085 relief is correct as a matter of law. By narrowly focusing his section 1085 claim on the issue of whether SFHA had a duty to proceed with the processing of his request for a potential live-in aide, Doe simply repackaged his basic contention that SFHA wrongly disqualified him from receiving Section 8 subsidies. Since financial eligibility for a Section 8 subsidy was the predicate to his request for live-in assistance, he was raising the same essential challenge to the SFHA process he could have pursued—and actually did pursue—in the form of his request for section 1094.5 relief.
Accordingly, because Doe had a full and fair opportunity to seek review under section 1094.5, he may not simultaneously seek what amounts to the same relief under section 1085 by a different procedural route. For the simple reason that another adequate remedy existed, we reject Doe’s attack on the denial of relief under section 1085. (§ 1086 [extraordinary writ relief is properly denied where the party has an adequate remedy]; see Phelan v. Superior Court (1950) 35 Cal.2d 363, 366 [writ review not available where another adequate remedy present].)
Finally, Doe claims the trial court did not fully dispose of his petition and complaint because it left unaddressed claims he pleaded under title 42 United States Code section 1983 and the Americans with Disabilities Act. From what we can discern, these legal theories share the same basis, factually, as his primary contention that the trial court abused its discretion in denying his petition for an administrative writ of mandamus. If there is more to what Doe intended by advancing these alternative legal theories, he has not developed his legal arguments and we will not do so for him. All material issues of fact have been resolved, and Doe’s contentions that there are factual disputes remaining are incorrect.
C. Judicial Notice for Appellant’s Exhibits
Simultaneously with the filing of Doe’s reply brief, he filed a request that we take judicial notice of exhibits A and B to his appendix, which are, respectively, “trial court’s mini minutes” and “IRS publication 590-B” for filing. We do not find these materials to be relevant to the resolution of this appeal and thus we deny Doe’s request for judicial notice.
III. CONCLUSION
The record shows Doe was not eligible for the reasonable accommodation he requested and that for years he had been failing to report his income by hiding it in sham special needs trusts. The trial court was therefore correct to deny Doe’s requests for writ relief under sections 1094.5 and 1085. Judgment was properly entered against him.
IV. DISPOSITION
The judgment is affirmed. Respondents shall recover costs.









_________________________
Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Rivera, J.