Filed 4/13/18 Ervin v. County of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



JOHN L. ERVIN,

Plaintiff and Appellant,

v.

COUNTY OF SAN DIEGO,

Defendant and Respondent.
D072057



(Super. Ct. No. 37-2015-00034821- CU-WM-CTL)


APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Reversed and remanded with directions.

John L. Ervin, in pro. per., for Plaintiff and Appellant.
Thomas E. Montgomery, County Counsel, and Laura E. Dolan, Deputy County Counsel, for Defendant and Respondent.
John L. Ervin appeals from a judgment denying his petition for writ of administrative mandamus. The trial court ruled that, by failing to participate at the administrative hearing on his grievance, Ervin had not exhausted his administrative remedies. We disagree and reverse. Ervin requested and received a grievance hearing; on the present record, the fact that he chose not to attend a hearing does not mean that he failed to participate in the administrative process. On remand, the trial court should reconsider the briefing and related documentation in support of and in opposition to Ervin's petition and rule on the merits of the issues presented.
I.
INTRODUCTION
The Child Abuse and Neglect Reporting Act (CANRA), found at Penal Code section 11164 et seq., sets forth the procedures for initiating, conducting, and challenging child abuse investigations.
Under CANRA, an investigation of child abuse may result in a report with one of three possible findings: unfounded, substantiated or inconclusive. "Unfounded" means that the report "is determined by the investigator who conducted the investigation to be false, to be inherently improbable, to involve an accidental injury, or not to constitute child abuse or neglect . . . ." (§ 11165.12, subd. (a).) "Substantiated" means that the report "is determined by the investigator who conducted the investigation to constitute child abuse or neglect . . . based upon evidence that makes it more likely than not that child abuse or neglect . . . occurred." (§ 11165.12, subd. (b).) "Inconclusive" means that the report "is determined by the investigator who conducted the investigation not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect . . . has occurred." (§ 11165.12, subd. (c).)
In part, CANRA requires mandated reporters (§ 11165.7, subd. (a)) to report suspected child abuse or neglect to local agencies (§ 11165.9). If any such agency, following its investigation, substantiates the report it receives, the agency is required to report its results to the Child Abuse Central Index (CACI). (§ 11169.) The California Department of Justice (DOJ) maintains the CACI as a repository, with the reporting agencies responsible for the "accuracy, completeness, and retention of the reports." (§ 11170, subd. (a)(2).) Any person who is listed on the CACI is entitled to challenge the listing in a grievance hearing before the agency that requested the person's inclusion in the CACI. (§ 11169, subd. (d).)
As applicable here, the County of San Diego (County)—in particular, its department of Child Welfare Services (CWS)—is the agency that investigated a referral of alleged child abuse by Ervin, substantiated the allegations, and reported the results to the CACI.
II.
FACTUAL AND PROCEDURAL BACKGROUND
We have disregarded factual statements in the parties' briefs that do not contain record references as required by California Rules of Court, rule 8.204(a)(1)(C). (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947 ["Statements of fact that are not supported by references to the record are disregarded by the reviewing court."].) Although Ervin, who is representing himself, is not a licensed attorney, the procedural rules apply equally to him. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
In order to have a full understanding of what preceded this administrative mandamus proceeding, we grant in part and deny in part Ervin's August 2017 motion for judicial notice. We will judicially notice the eight documents (request Nos. 1-8) that were filed in Ervin v. County of San Diego, San Diego County Superior Court case No. 37-2014-00000207-CU-WM-CTL (First Writ Proceeding). (Evid. Code, §§ 459, subd. (a), 452, subd. (d)(1).) In so doing, we notice the existence of the documents, but not the truth of the matters asserted therein. (Lindsey v. Conteh (2017) 9 Cal.App.5th 1296, 1302, fn. 2.) The remaining three federal court documents (request Nos. 9-11) are irrelevant, and we deny the motion as to these documents, because we do not judicially notice material that "has no bearing on the limited legal question at hand." (People v. Stoll (1989) 49 Cal.3d 1136, 1144, fn. 5.)
In May 2013, CWS received a referral alleging that Ervin had emotionally abused one of his children. In early June 2013, CWS completed its investigation and substantiated the allegation of child abuse. As a result, Ervin was listed on the DOJ's CACI. In mid-June 2013, Ervin requested a grievance hearing to challenge the decision to list his name on the CACI.
Following a September 2013 administrative hearing (First Hearing), the hearing officer upheld the substantiated finding of child abuse in an October 2013 DOJ Grievance Decision (First Grievance Decision).
Ervin filed a petition for writ of administrative mandamus (First Writ Proceeding), seeking (1) a finding that he did not receive a fair administrative hearing, and (2) the issuance of a writ of mandate directing the County to reverse its finding of child abuse and to remove Ervin from the CACI. Following briefing and a September 2014 hearing, the superior court (Judge Taylor) issued a minute order (Minute Order), in part ruling that the hearing officer erred in not allowing Ervin to present testimony from his minor children and in part directing the County to request the DOJ to remove Ervin's name from the CACI "while a new hearing is pending." In October 2014, the superior court (Judge Taylor) granted the petition in part, issuing a peremptory writ of administrative mandamus (2014 Writ or judgment) and setting aside the First Grievance Decision. In addition, in the 2014 Writ the court remanded the matter to the County "for reconsideration," ordering as follows: (1) the County was to either "close the underlying child abuse referral as 'inconclusive', OR . . . conduct a new administrative hearing" at which Ervin could call his two minor children as witnesses; and (2) "[p]ending the occurrence and outcome of a new hearing, the County shall also submit a written request to the [DOJ] that [Ervin] be removed from [the] CACI."
In compliance with Judge Taylor's ruling, the County scheduled a new hearing on Ervin's request for a grievance hearing and wrote to both Ervin and the DOJ. In a September 24, 2014 letter, the County gave Ervin notice that his grievance hearing would proceed a month later on October 23, 2014. In a letter of the same date to the DOJ, the County provided a copy of the Minute Order, formally requested that Ervin be removed from the CACI, and advised that the continued hearing would take place on October 23, 2014.
In an exchange of letters shortly before the continued hearing, Ervin advised the County that he was bringing his own court reporter, and the County advised Ervin that court reporters are not permitted to be present at the hearing. The County quoted from the applicable section of the manual of policies and procedures for child welfare services, which required that all grievance hearings be " 'audio recorded as part of the official administrative record' " and explained the procedure for obtaining a copy of the administrative record, including the audio recording.
The October 2014 hearing (Second Hearing) lasted approximately three minutes. In response to the hearing officer's request for introductions, Ervin stated his name and announced both that he brought his own court reporter and that he did not consent to the audio recording. The hearing officer did not allow the court reporter to enter the room, expressly citing the confidentiality accorded child welfare matters and the need for a court order to proceed otherwise. Ervin confirmed that he did not consent to the audio recording, and the hearing officer ended the Second Hearing.
On November 5, 2014, in the First Writ Proceeding, the County presented an ex parte application to re-refer Ervin to the CACI. The court (Judge Taylor) denied the request without prejudice to "the County's forthcoming noticed motion" that would be heard approximately two months later.
On November 17, 2014, the County gave Ervin notice that his grievance hearing would proceed on December 19, 2104 (Third Hearing).
In response, Ervin wrote the County's attorney a three-page letter, setting forth his view of the process—i.e., his position on both the underlying facts and the procedures employed—and asking that the letter and its enclosure be made part of the record "for the hearing officer's consideration." The enclosure was a copy of a two-page declaration signed by one of his children in a family court case in which Ervin sought to dissolve his marriage to the mother of their children. Approximately a week later, Ervin submitted to the County a five-page document, in which he advised the County that he would not be attending the Third Hearing, objecting to the Third Hearing on eight specific grounds.
The Third Hearing proceeded as noticed on December 19, 2014. At the very beginning of the proceedings, on the record, the grievance hearing coordinator and the hearing officer telephoned Ervin. The grievance hearing coordinator identified herself and disclosed that the conversation was being recorded. Ervin stated that he objected to the recording and terminated the call without responding to the hearing officer's question whether he would attend the hearing. The hearing proceeded as noticed with the hearing officer receiving documents and hearing testimony. The administrative record from the Third Hearing thus includes 27 exhibits, including a declaration, submitted by Ervin and 11 exhibits submitted by the County and testimony from two of the County's protective services workers with personal knowledge of the investigation that resulted in the substantiation of the finding of child abuse and the report to the CACI.
Approximately a month after the Third Hearing—which, according to the administrative record, "was conducted pursuant to [the 2014 Writ]"—the grievance hearing officer upheld the substantiated finding of child abuse in a January 2015 DOJ Grievance Decision.
In October 2015, Ervin filed the underlying petition for writ of administrative mandamus and damages related to the January 2015 grievance decision. In the prayer, Ervin requested: a finding that he did not receive a fair administrative hearing; a writ of mandamus commanding the County to reverse certain findings and to remove Ervin from the CACI; damages; and costs. The County answered the petition, and the parties briefed and argued Ervin's request for a writ of administrative mandate.
In November 2016, the superior court (Judge Sturgeon) entered a judgment denying Ervin's petition for writ of administrative mandamus. The court based its ruling on the finding that, "by his failure to participate in the hearing," Ervin "has not exhausted his administrative remedies." Ervin timely appealed from the judgment.
III.
DISCUSSION
We apply a de novo standard of review to the legal question of whether the doctrine of exhaustion of administrative remedies applies. (Anthony v. Snyder (2004) 116 Cal.App.4th 643, 654 [exhaustion of administrative remedies "is a jurisdictional doctrine concerning the right to resort to the courts for relief, which . . . raises questions of law"].) As we explain, the trial court erred. Based on our independent review of the entire administrative record, Ervin did not refuse to participate in the administrative process, even though he chose not to attend the Third Hearing in person. Accordingly, we will reverse the judgment and remand with directions that the court reconsider the briefing and related documentation in support of and in opposition to Ervin's petition and rule on the merits of the issues presented.
A. The Trial Court Erred in Ruling That Ervin Did Not Exhaust His Administrative Remedies
Citing Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515 (Edgren), the trial court ruled that Ervin failed to exhaust his administrative remedies by failing to participate in the Third Hearing. The principle from Edgren that the trial court applied is as follows: " 'Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.' " (Id. at p. 520, italics added.)
Edgren, however, is distinguishable. In that case, the plaintiff alleged that the university breached his employment contract in violation of the university's personnel policies and procedures. (Edgren, supra, 158 Cal.App.3d at p. 519.) Before filing his lawsuit, the plaintiff had invoked the grievance procedure and participated for three days in a hearing; but when a fourth date was scheduled, he "declined to participate further, stating that he believed that he could not get a fair hearing because of the circumstances under which the hearing was being conducted." (Ibid.) The trial court sustained the university's demurrer to the complaint, and the Court of Appeal affirmed, concluding that the plaintiff's contract action was barred by the plaintiff's failure to have exhausted the university's grievance procedure. (Id. at p. 523.)
That is not the case here. Unlike the plaintiff in Edgren, Ervin did not abandon the grievance hearing procedure.
Ervin attended and fully participated in the First Hearing.
At the Second Hearing, in response to the hearing officer's question, Ervin declined to give his consent to audio record the proceedings. The hearing officer ended the proceedings without considering evidence or issuing a ruling.
At the Third Hearing, Ervin again stated that he did not consent to having his statements audio recorded. Nonetheless, the Third Hearing proceeded as follows: The County gave proper notice; the County submitted a six-page position statement; Ervin submitted a three-page position letter with an enclosed copy of a two-page declaration from one of his children (which together were marked as an exhibit); Ervin submitted five pages of objections, including evidentiary objections (which together were marked as an exhibit); the hearing officer received 27 exhibits (including the declaration from one of Ervin's children) from Ervin and 11 exhibits from the County; the hearing officer heard live testimony from two witnesses; and the hearing officer issued a detailed nine-page single-spaced grievance decision, approved by the director of CWS. Notably, within the nine pages, the hearing officer: described all 38 exhibits; disclosed that he had reviewed "the documentation," expressly stating that he had "read, considered and weighed" "[a]ll of the evidence submitted by Mr. Ervin" as well as considered "the oral testimony provided at the hearing" from witnesses who were available for cross-examination; summarized the issues and related investigation (including Ervin's statements) in more than three pages; and issued two full pages of findings.
Very simply, Ervin did not refuse to participate. All of the evidence Ervin had—namely, the 25 exhibits from the First Hearing and the two additional exhibits submitted the week prior to the Third Hearing—was presented and considered at the Third Hearing. Ervin merely decided that he would not attend the continued proceedings in person. Based on the entire record of the administrative proceedings—not solely on the fact that Ervin did not personally appear at the Third Hearing—we conclude that Ervin participated sufficiently to have exhausted his administrative remedies. Any other conclusion would imply a requirement that a complainant make an oral presentation at the hearing and a punishment (an automatic failure to have exhausted administrative remedies) for a complainant who does not.
To the extent there is a requirement that a complainant personally attend a grievance hearing, the trial court did not cite such a requirement, the County did not advise us of such a requirement, and our independent research has not disclosed such a requirement. Indeed, the DSS Manual expressly requires the attendance of the county employee(s) who conducted the investigation that is the subject of the grievance hearing, if available (as defined), with no mention of such a requirement for the complainant. (Id. at reg. 31-021.67.) To the extent a statute addresses one subject but not another, we assume that the choice was deliberate: " 'The expression of some things in a statute necessarily means the exclusion of other things not expressed.' " (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1105.) Although we are presented with a manual, not a statute, we apply this interpretive canon and conclude that, because regulation 31-021.67 of the DSS Manual expressly requires the attendance of the County's employees and does not mention the complainant, the manual does not require the attendance of the complainant.
For the foregoing reasons, the judgment is reversed, and the case is remanded to the trial court with directions that the court reconsider the briefing and related documentation in support of and in opposition to Ervin's petition and rule on the merits of the issues presented.
Because of the basis of our ruling, we need not consider Ervin's other arguments on appeal. However, for the benefit of the trial court and the parties on remand, we provide the following guidance on one specific issue, expressing no opinion on the other issues and arguments raised.
B. Judge Taylor's Comments Regarding the Sufficiency of the Evidence at the First Hearing Are Not Binding
In the First Writ Proceeding, the court issued a writ of administrative mandamus (previously identified as the 2014 Writ), which set aside the First Grievance Decision and in part remanded the matter to the County "for reconsideration," ordering that the County either close the underlying child abuse referral as inconclusive, or conduct a new administrative hearing at which Ervin could call his minor children as witnesses. Prior to issuing the 2014 Writ, in the five-page Minute Order following the hearing on Ervin's petition, Judge Taylor wrote in part: "[T]he evidence did not preponderate in favor of a 'substantiated' finding as to the minor [child]; to the contrary, the evidence preponderated in favor of a finding that the referral was 'inconclusive,' and the referral should have been closed on that basis. There is no logical basis for [the findings made]. The . . . findings defy logic . . . . There was, in the court's view, insufficient evidence to conclude that [Ervin] 'willfully cause[d] or permit[ted]' the minor [child] to 'suffer . . . mental suffering' within the meaning of . . . section 11165.3."
Ever since the filing of the September 2014 Minute Order—at the Third Hearing, in the underlying writ proceedings, in the appellate briefing, and at oral argument on appeal—Ervin has focused on the above-quoted language from the Minute Order and argued that the County was, and still is, required to remove him from the CACI. However, given the actual final rulings in the judgment (i.e., the 2014 Writ), the above-quoted statements from the Minute Order that preceded the 2014 Writ are not binding for a number of reasons—not the least of which is the trial court's obligation to "independent[ly] review" the administrative record to determine whether the weight of the evidence supports the findings in the January 2015 grievance decision. (Saraswati, supra, 202 Cal.App.4th at p. 926, italics added.)
First, if Judge Taylor intended to make a factual finding that the administrative record did not contain sufficient evidence to substantiate the finding of abuse, then Judge Taylor would have been required to issue the requested writ relief and order the County to reverse the CWS's finding of abuse and remove Ervin from the CACI; i.e., there would have been no need to conduct a new administrative hearing for the purpose of allowing Ervin to present additional evidence. Instead, however, Judge Taylor (1) found that Ervin had been prejudiced by not being allowed to call his children as witnesses, and (2) concluded that the County must either close the underlying child abuse referral as inconclusive or conduct a new administrative hearing at which Ervin could call his minor children as witnesses. Stated differently, for Judge Taylor to have concluded that Ervin had been prejudiced by the preclusion of certain evidence, then the administrative record must have otherwise substantiated the finding of abuse.
Additionally, in collateral estoppel or issue preclusion parlance, the findings in the first action can only bar relitigation of the issue in the second action, if the judgment in the first action "conclusively resolves an issue actually litigated and determined in the first action." (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824, italics added.) Here, in the first action (i.e., the First Writ Proceeding), the judgment (i.e., the 2014 Writ) did not conclusively resolve the issue whether the administrative record failed to substantiate the finding of abuse. The only issue actually litigated and determined in the First Writ Proceeding is that the administrative record without evidence from the children was insufficient to invalidate the CWS's finding of abuse.
Finally, because "the trial court's judgment . . . may not be impeached by the trial court's memorandum of opinion or other minute order" (In re Miller (1966) 244 Cal.App.2d 454, 459; accord, Maywood Mutual Water Co. v. County of Los Angeles (1970) 12 Cal.App.3d 957, 960; Oldis v. La Societe Francaise (1955) 130 Cal.App.2d 461, 471), the statements in Judge Taylor's Minute Order that proceeded the 2014 Writ cannot be used to impeach the 2014 Writ. To credit the above-quoted statements from the Minute Order as Ervin argues is to impeach the judgment (i.e., the 2014 Writ) in which the court gave the County the option of conducting a new administrative hearing.




DISPOSITION
The judgment is reversed, and the matter is remanded for the trial court to reconsider the briefing and related documentation in support of and in opposition to Ervin's petition and rule on the merits of the issues presented. Ervin is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a).)


IRION, J.

WE CONCUR:




HUFFMAN, Acting P. J.




HALLER, J.