Opinion
H043780
03-14-2018
ABHIJIT PRASAD, Plaintiff and Appellant, v. WILL LIGHTBOURNE, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-11-CV203380)
This is appellant Abhijit Prasad's second appeal over the trial court's denial of his petition for writ of administrative mandamus against the Santa Clara County Department of Social Services (Department). In his first appeal, Prasad challenged the Department's determination that child abuse allegations levied against him by his older daughter were substantiated. (Prasad v. Sessions (Jan. 22, 2015, H039167) (Prasad I).) After determining the trial court applied the incorrect standard of review, we reversed and remanded the matter for a new hearing in which the trial court was ordered to exercise its independent judgment on the evidence. Following our remand, the trial court conducted a new hearing and again denied Prasad's petition for writ of administrative mandate.
We granted the Department's request to take judicial notice of the record and the decision in Prasad I.
Prasad has appealed again, arguing the trial court erred because its denial of his petition for writ of mandate was based on incorrect legal standards. He also argues the court erroneously denied his motion for reconsideration and his request for fees and costs associated with the underlying writ proceeding and attorney fees on appeal. Lastly, he claims there were deficiencies with the administrative proceeding. We find no merit in any of Prasad's contentions and affirm the trial court's order.
BACKGROUND
The facts underlying the first administrative hearing are recounted in detail in Prasad I. We recite the facts again here for completeness.
1. The First Hearing
"In 2009, Prasad was in the midst of a contentious separation from his (now ex-) wife Komal Rattan. The two had separated in 2007 and eventually divorced in June 2010. Throughout their separation, Prasad and Rattan shared legal custody of their two young daughters and Prasad had visitation rights.
"On November 16, 2009, the Department received a report that Prasad had possibly sexually abused his daughters, who were then aged six and four years old. The alleged abuse took place at Prasad's home sometime between September 2008 and July 2009. One of the girls had rashes and yeast infections in her genital area, and both girls told Rattan that Prasad pinched their 'private area' and bathed with them. Around this same period of time Rattan observed her daughters kissing each other and laying on top of each other while naked. Rattan also reported that Prasad has a history of committing domestic violence.
"The matter was referred to a Department social worker, Nana Chancellor, for investigation. On November 23, 2009, Chancellor met with Rattan and the two girls. While the girls played, Chancellor and Rattan spoke quietly so that they would not overhear. Rattan described past incidents of domestic violence by Prasad, many of which were committed in their daughters' presence. Rattan said the older daughter recently told her that Prasad takes baths with them and pinches them in 'their privates.' Rattan thinks the older daughter told her this because the girls were supposed to resume visitations with Prasad and they do not want to do so.
"Chancellor then met with the older daughter at one end of the room while Rattan and the younger daughter played at the other end. Chancellor reported the older daughter maintained 'good eye contact, communicated clearly, and appeared to be answering questions openly.' She told Chancellor she understood what it meant to tell the truth and promised to do so. The older daughter said she does not like visiting with Prasad because he hits them in the head with his fist when they get in trouble. She saw him hit their mother in the head and bump her mother's head into the wall. While visiting her father, he makes them take baths and climbs into the bathtub with them. He pinches their bottoms while in the bath, which hurts and makes them cry. The older daughter denied that he pinched their vaginas. However, on more than one occasion, her father told them to touch his privates but they refused because '[i]t's disgusting.' He would get mad and kept saying 'touch my butt' repeatedly.
"Chancellor next met with the younger daughter, who 'appeared to understand everything asked of her but at times appeared to have a difficult time providing clear answers to the questions asked.' The younger daughter said she was scared of her father, who spanks her with her pants off when she gets in trouble. He is always mad at her mother. At her father's house, he makes her take baths and gets in the bathtub with her, which she does not like. At this point of the interview, the younger daughter walked to the other side of the room and climbed into her mother's arms.
"Chancellor began talking to Rattan again who told her she did sometimes see small bruises on the girls' bottoms, but they never said that Prasad had pinched them. In the last year, her younger daughter kept coming home with severe rashes in her vaginal area after visiting with Prasad. The pediatrician found that the girl had a yeast infection and urinary tract infection.
"On December 30, 2009, Rattan contacted Chancellor because Prasad was scheduled to pick up their daughters that afternoon. Chancellor called Detective Nathan Cogburn with the Tracy Police Department, who was in charge of the criminal investigation into the allegations against Prasad. Chancellor wanted to discuss contacting Prasad so she could ask him to forego visitation until the next court hearing, scheduled for January 13, 2010. Detective Cogburn agreed that Chancellor could do so, so long as she did not inform Prasad of the specific allegations or advise him he was being investigated by police as well as the Department.
"Chancellor spoke with Prasad, who agreed not to seek visitation with his daughters until the next hearing in family court or until he heard otherwise from Chancellor. He was polite and stressed his desire to cooperate, but also spent more than 30 minutes on the phone telling Chancellor how Rattan was mentally ill and was brainwashing their older daughter.
"Prasad sent Chancellor nearly 100 pages of documents prior to the January 13, 2010 family court hearing. These documents included some of Rattan's medical records, multi-page letters from Prasad describing his fitness as a father, his concerns about Rattan's mental stability and propensity to lie, as well as many photos depicting his daughters engaged in various activities such as swim lessons, birthday parties, etc., during their visits with him.
"Chancellor testified at the January 13 hearing and repeated what she had been told by Rattan and the two girls during their November 23, 2009 interview. However, because the Tracy Police Department had asked her not to interview Prasad due to the ongoing police investigation, Chancellor found the allegations of abuse to be inconclusive at that time.
"Once police are involved in an investigation of child sexual abuse, Chancellor would not ask the children detailed questions about the claims unless law enforcement personnel were present. Detective Cogburn scheduled a multi-disciplinary interview (MDI) with Rattan and the older daughter for February 1, 2010, but Chancellor did not attend that interview. Detective Cogburn subsequently informed Chancellor the older daughter had provided information consistent with what she had told Chancellor and the 'forensic interviewer had found her to be reliable.' The older daughter told Detective Cogburn her father got 'in the bathtub with her and her sister, that he has touched her bottom and vagina, and that he has asked that she touch his privates.'
"Based on this information, Chancellor found the allegation of sexual abuse by Prasad against the older daughter was substantiated. She found the allegation of sexual abuse by Prasad against the younger daughter to be inconclusive. On February 9, 2010, Chancellor advised Prasad that she had reported her findings to the California Department of Justice for inclusion in the Child Abuse Central Index (CACI). She further advised him of his right to an administrative grievance hearing.
"Prasad requested an administrative grievance hearing, which was initially scheduled for July 15, 2010. At that hearing, the Department sought to introduce a redacted document containing the social worker's findings, but that document had not been timely provided to Prasad. The hearing was continued so Prasad could review the document in detail.
"At the August 10, 2010 hearing, a hearing officer considered the documentary evidence submitted by the parties as well as the testimony of Chancellor and Prasad. Chancellor testified first, and essentially recounted what she was told during her interviews with Rattan and the two daughters. She also testified that on February 2, 2010, she received a call from Detective Cogburn who told her the older daughter's MDI was consistent with the allegations she made to Chancellor. Detective Cogburn directed her not to discuss the allegations with Prasad.
"Prasad testified the abuse allegations were false and he believed Chancellor did not undertake a proper investigation. Chancellor could not tell him when the alleged abuse occurred and he denied ever bathing with his daughters. He complained that he had not seen his daughters since July 2009 and Rattan would often not let him know where the children were. He said his children went to the doctor and there was no evidence that they had been molested. Prasad also said Rattan previously falsely accused him of engaging in domestic violence and he believes she has coached the daughters to make false allegations of abuse against him. He said he has not been arrested and no criminal charges were filed against him arising out of the alleged molestations.
"The exhibits that Prasad submitted at the hearing consisted, in part, of copies of various filings in the family court proceedings, various police reports, e-mails, documents related to the nannies he employed to help care for his daughters and multiple photographs of his daughters engaging in various activities, such as swim lessons and watching fireworks, during their visits with him.
"On August 23, 2010, the hearing officer issued a written recommendation and summary of findings in which he recommended that Chancellor's original findings, i.e., that the claims of molestation were substantiated as to the older daughter and inconclusive as to the younger daughter, remain unchanged. The hearing officer's recommendation extensively reviewed the relevant evidence, summarized the testimony provided and concluded that the 'statements of [Chancellor] and the information in the case regarding the MDI interview of [the older daughter] substantiate the allegation of sexual abuse.' As to the younger daughter, the hearing officer concluded '[t]he allegation of sexual abuse . . . is less clear and there was no supporting MDI regarding her statements. Therefore I am recommending that this allegation continue to be classified as inconclusive.' The hearing officer's recommendation was confirmed by the agency director on August 25, 2010.
"Prasad subsequently filed a petition for writ of mandate against the Department seeking review and reversal of the Department's decision. Specifically, he sought an order directing the Department to 'abate the recommendation finding to "Unfounded," dismiss the underlying proceeding results and so advise Respondent State of its action.'
"Prasad filed a memorandum of points and authorities in support of his petition, in which he argued, in pertinent part: (1) the trial court must conduct an independent review of the evidence admitted at the administrative hearing; (2) his due process rights were violated by misrepresentations, confirmatory bias and falsehoods made by Chancellor; (3) he was not adequately apprised of the dates of the alleged molestations; (4) the grievance hearing officer did not permit him to adequately present his case, thus denying his right to a fair hearing; and (5) the determination that the abuse allegations were substantiated was not supported by the evidence.
"In opposition, the Department argued that the administrative decision does not substantially affect a fundamental vested right and thus the trial court should review the decision only to determine if it is supported by substantial evidence rather than conduct an independent review of the evidence. The Department further argued that Prasad's due process rights were not violated, the grievance hearing officer did not prevent him from presenting his case, and there was substantial evidence to support the administrative decision.
"At the hearing on Prasad's petition, there was no discussion about the appropriate standard of review. The trial court's subsequent order denied the petition, rejecting Prasad's due process arguments and concluding 'the Department's finding is supported by substantial evidence.' " (Fns. omitted.)
2. Prasad's First Appeal and This Court's Opinion
On appeal, Prasad argued the trial court should have exercised its independent judgment when reviewing the Department's ruling. The Department conceded. On January 22, 2015, we issued our decision on Prasad's appeal. We agreed with Prasad and the Department, and reversed and remanded the matter to the trial court so it could conduct a new hearing and apply the correct standard of review. We further held that Prasad was entitled to his costs on appeal.
3. Prasad's Motion for Costs and Attorney Fees
On May 4, 2015, Prasad filed a motion for costs and attorney fees seeking $116,597.78. Prasad sought attorney fees to compensate the attorney he retained to contest his placement in the CACI database, the attorney he retained when he lost the grievance hearing, the attorney he retained to prepare the opening brief on appeal following the denial of his writ of mandate, and his present attorney, who he retained to complete the briefing for his first appeal. He also sought attorney fees for the legal work incurred following this court's remand.
On May 20, 2015, the Department filed a motion to tax costs. The Department argued the bulk of the attorney fees requested by Prasad should be denied, because it was premature to award costs for the underlying litigation before the trial court entered a final judgment in the matter. The Department also insisted Prasad was entitled to only $1,637 for his costs on appeal.
On June 25, 2015, the trial court held a hearing on Prasad's motion for costs and attorney fees. Following the hearing, the trial court issued a written order granting in part and denying in part the Department's motion to tax costs. The court concluded Prasad's request for costs and fees related to the underlying litigation was premature, and denied Prasad's motion without prejudice until the litigation was decided. It found Prasad was entitled to his costs on appeal but was not entitled to his attorney fees on appeal. The court concluded this court's unpublished decision in Prasad I did not confer a significant benefit to the public. Thereafter, it allowed Prasad to recover a total of $2,212 in costs on appeal.
4. The Second Hearing
Prasad and the Department filed supplemental briefs with the trial court in preparation for the second hearing on Prasad's petition for writ of mandate. Soon after, a second hearing was held. During the hearing, Prasad argued the Department failed to conduct a proper investigation into the allegations of child sexual abuse.
On January 25, 2016, the trial court denied Prasad's petition for writ of mandate after exercising its independent judgment. The trial court concluded the administrative findings, which substantiated the allegation of child sexual abuse as to Prasad's older daughter, were not contrary to the weight of the evidence. In its written decision, the court rejected Prasad's claim that the Department's failure to conduct a thorough investigation and comply with applicable policies and procedures meant, as a matter of law, that there was insufficient evidence. The trial court reasoned that "a substandard investigation, which violates various policies and procedures, could still generate sufficient evidence to substantiate a report of sexual abuse."
5. The Motion for Reconsideration
On February 2, 2016, Prasad filed a motion for reconsideration over the trial court's denial of his petition for writ of mandate. He argued several cases relevant to the trial court's decision had been decided. He also claimed that new facts, such as his inability to cross-examine the social worker at the grievance hearing and his inability to review evidence, had recently come to light.
The trial court held a hearing on Prasad's motion for reconsideration on April 29, 2016. On May 13, 2016, the trial court denied the motion. Prasad subsequently filed a notice of appeal over the trial court's denial of his petition for writ of mandate.
We note that Prasad references facts in his briefs without providing citations to the record in violation of California Rules of Court, rule 8.204(a)(2)(C). For example, he confusingly states in his reply brief: "Then Prasad learned after spending $200,000.00 and five years later during a Family Law hearing, he was not in the CACI database. Respondents then sent a form to the State in April 2015 putting Prasad in CACI, without conducting a due process compliant 'Active Investigation,' and/or allowing a hearing as mandated by Administrative Code § 901(a), or MPP 31-021." (Sic.) He then claims the issues raised in this appeal are not moot, because he needs "this court to issue a decision, to prevent Respondents from entering Prasad in CACI again." "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Furthermore, to the extent Prasad's claim is based on facts outside the record, we will not consider it. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.)
DISCUSSION
On appeal, Prasad challenges the trial court's denial of his petition for writ of administrative mandate and its denial of his motion for reconsideration. He argues the court denied his writ petition based on incorrect legal principles. He also argues his grievance hearing was procedurally unfair. He further claims his motion for reconsideration should have been granted based on new law and facts. Lastly, he claims the trial court's grant in part of the Department's motion to tax costs was made in error. We address each of Prasad's claims separately and explain why they lack merit.
1. Denial of Prasad's Petition for Writ of Mandate
a. Fairness of the Grievance Hearings
i. Overview
On appeal, Prasad argues the grievance hearing was procedurally unfair and deprived him of his due process rights. Prasad alleges the existence of numerous procedural irregularities and defects. For example, he argues he was interrupted numerous times during both grievance hearings, precluding him from presenting his case. He also maintains he was denied access to all the information related to the allegations at issue, he was not given the opportunity to cross-examine Chancellor, and the trial court erroneously relied on evidence not within the administrative record. He further claims the grievance hearings were not held in a timely manner.
"Where, as here, the issue is whether a fair administrative hearing was conducted, the petitioner is entitled to an independent judicial determination of the issue." (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) Thus, "[a] challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law." (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)
ii. Analysis
a. Timeliness of the Hearing
First, Prasad claims the grievance hearing was not timely held. He claims the Department repeatedly delayed the hearing without his consent. On review of the administrative record, we disagree with Prasad's assessment of the timeliness of the grievance hearing. Although there were delays with the hearing date, each delay was properly communicated to Prasad, and Prasad either consented to the delays or the delays were justified under the governing regulations.
The State Department of Social Services Manual of Policies and Procedures (DSS Manual) section 31-021.4 requires grievance hearings be scheduled within 10 business days and held no later than 60 calendar days from the date the request for a grievance hearing is received by the county, unless both the county and the complainant agrees otherwise.
Prasad included portions of the DSS Manual as exhibits to his reply in support of his motion for reconsideration below. On appeal, he requested this court augment the record to include his reply in support of his motion for reconsideration and its accompanying exhibits, which this court granted. The DSS Manual can also be accessed online at <http://www.cdss.ca.gov/inforesources/Letters-Regulations/Legislation-and-Regulations/Child-Welfare-Services-Regulations> (as of Mar. 14, 2018).
Prasad requested a grievance hearing in a signed letter dated March 8, 2010. It is unclear when the Department received the letter. A social worker from the Department, Dana Sugiyama, responded to Prasad's request on March 26, 2010. She informed Prasad that his grievance hearing would be held on April 27, 2010, and he had an appointment on April 20, 2010, to inspect the evidence the Department intended to present against him at the hearing.
Subsequently, on April 14, 2010, Prasad was told in a letter that his grievance hearing had been put on hold, because the child abuse allegations against him had become the subject of a pending criminal case. According to DSS Manual section 31-021.3.31, requests for grievance hearings will be denied if the "allegation of child abuse and/or severe neglect resulting in the referral to CACI is pending before the court."
On May 27, 2010, Prasad informed the Department the criminal case against him had been dismissed and again requested a grievance hearing. Ronni Smith, a social worker for the Department, wrote Prasad a letter informing him that his hearing was now set for June 24, 2010, and he had an appointment on June 8, 2010, to examine the evidence that would be presented against him. On June 7, 2010, Prasad advised the Department he had not received the letter written by Smith. Thereafter, Smith rescheduled the grievance hearing to July 15, 2010, giving Prasad an appointment on June 10, 2010, to review the evidence that would be presented against him. Prasad was informed of these dates with a letter.
At the July 15, 2010 hearing, the Department sought to introduce a redacted document containing the social worker's findings, but that document had not been timely provided to Prasad. The hearing was continued so Prasad could review the document in detail. Prasad did not object to the continuance. Ultimately, Prasad's grievance hearing was held on August 10, 2010.
Based on the Department's correspondence with Prasad, which was included in the administrative record, we are satisfied that Prasad was sufficiently apprised of the dates set for his grievance hearings. Furthermore, the delays with the hearing date were properly communicated to him. Prasad either agreed to the delays or the delays were warranted under the DSS Manual, such as when Prasad became the subject of a criminal investigation. (DSS Manual, § 31-021.3.)
b. Ability to Review Evidence
Next, Prasad argues he was deprived of the opportunity to review the Department's evidence against him. After reviewing the administrative record, we find this contention fails.
As previously discussed, the Department memorialized conversations with Prasad and kept records of the letters sent to him. Each time the Department set a date for Prasad's grievance hearing, he was given an appointment to examine the evidence against him. There is no indication that Prasad was prevented from attending his appointment to review the evidence or that he was somehow barred from accessing the information. DSS Manual section 31-021.6.62 provides that the "county, complainant and his or her representatives, if any, shall be permitted to examine all records and evidence related to the . . . original referral that prompted the CACI listing . . . ." (Italics added.) The record reflects the Department complied with this regulation.
Prasad, however, claims he never received copies of the Department's evidence. Assuming this is true, Prasad's contention would still fail. Prasad does not cite to any authority—nor are we aware of any authority on the matter—that requires the Department to furnish copies. On appeal, Prasad insists DSS Manual regulations do not preclude him from making copies of documents to take with him, citing to Welfare and Institutions Code section 827, subdivision (a)(1)(D). That statute, however, deals with juvenile court records, and is inapplicable to the administrative proceedings at issue here. Thus, we find his argument that he was deprived of an opportunity to review the evidence against him to be meritless.
c. Advisement of Right to an Attorney at the Hearing
Likewise, Prasad's claim that he was not advised he was permitted to have an attorney or representative with him at the grievance hearing as set forth under DSS Manual section 31-021.4.42 is easily rejected by a review of the record. When Prasad was notified that an allegation of child abuse had been substantiated against him, he was given a form to fill out should he wish to have a grievance hearing. On this form was a printed advisement informing Prasad that he was entitled to have an attorney present at the hearing to assist him. Prasad filled this form out and even furnished the name and contact information for an attorney. During the hearing on his motion for reconsideration, Prasad argued the attorney he indicated on the form was his family law attorney, and at that time he did not understand there was a distinction between his placement in the CACI database and his other family law issues. Prasad's own misunderstanding does not negate the fact that he was advised of the right to have an attorney present at the hearing. Since the record reflects he was advised of his right to have an attorney, his claim that he did not receive such an advisement fails.
d. Denial of Opportunity to Present His Case
Next, Prasad claims he was denied a fair hearing, because he was not given the opportunity to fully present his case. He argues he was not allowed to cross-examine Chancellor, and he was unable to fully explain his position because he was interrupted by the hearing officer approximately 44 times.
First, we find Prasad's claim that he was deprived of an opportunity to cross-examine Chancellor to be an inaccurate assessment of the facts. In his declaration supporting his motion for reconsideration, Prasad claimed the hearing officer refused his request to conduct a cross-examination. That is not what occurred. According to the transcript of the hearing, the hearing officer told Prasad he could indirectly ask Chancellor questions by posing questions through the hearing officer. It does not appear Prasad attempted to do so. Nor did Prasad request permission to cross-examine Chancellor himself during the hearing.
The hearing officer stated in part: "[T]he way this usually goes and the way I want to proceed is we ask the social worker to give a statement regarding her referral and what her investigation is and I may ask her some questions if you have questions you can ask them through me and kind of get some clarity about the specific referral. . . ." On appeal, Prasad claims he did not agree to this format for the hearing. This claim is contrary to the transcript of the hearing, which reflects that he did agree.
Prasad said "Yeah" and "okay" after the hearing officer explained the process he wished to follow during the grievance hearing.
Thus, assuming Prasad had the right to cross-examine Chancellor during the grievance hearing, he has forfeited it for failing to request it below. A party who does not timely assert his or her constitutional rights forfeits them. (People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084 [right to a jury trial forfeited for failing to request one below]; People v. Skiles (2011) 51 Cal.4th 1178, 1189 [deprivation of right to cross-examination forfeited for failing to raise it in trial court]; People v. Tafoya (2007) 42 Cal.4th 147 [ruling precluding cross-examination forfeited on appeal for failing to raise it in trial court].) This is true even of self-represented litigants, as Prasad was during his grievance hearing. Self-represented litigants are not entitled to special treatment. (People v. $17,522.08 United States Currency, supra, at p. 1084.)
Furthermore, the hearing officer's interruptions did not deprive Prasad of an opportunity to present his case. The grievance hearing transcript reflects the hearing officer did not deliberately interrupt Prasad in an effort to undermine his testimony. In many instances, the hearing officer stopped Prasad when he deviated from the issues pertinent to the hearing. In other instances, the hearing officer interrupted Prasad so he could ask clarifying questions and obtain additional information relevant to the matters at hand. As a result, Prasad was not deprived of a fair hearing.
e. Unfairly Crediting Chancellor's Evidence
Prasad also claims the grievance hearing was procedurally unfair, because the hearing officer failed to properly consider all the evidence before him when he conducted his independent review and instead only believed Chancellor's testimony and evidence. Prasad argues the situations contemplated in Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72 (Gonzalez) and Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740 (Norasingh) are applicable here and warrant reversal of the hearing officer's decision.
Prasad's premise that the hearing officer demonstrated some sort of bias by believing Chancellor's testimony is not well taken. At the grievance hearing, it was the hearing officer's role to examine the evidence and independently determine if the allegations of child abuse should be substantiated. (Gonzalez, supra, 223 Cal.App.4th at p. 101.) In so doing, the hearing officer was tasked with examining all the evidence—evidence supporting the allegations and evidence negating the allegations. To perform his duties, the hearing officer was required to make some credibility determinations to come to his ultimate conclusion on the matter. Evidence in favor of a substantiated finding will likely be contrary to evidence in favor of an inconclusive finding. Thus, the fact that the hearing officer credited Chancellor's testimony and evidence over Prasad's evidence does not necessarily indicate Prasad was deprived of a fair hearing.
Furthermore, the cases cited by Prasad do not aid him. In Gonzalez, a mother was reported for child abuse after she spanked her then 12-year-old daughter using a wooden spoon. (Gonzalez, supra, 223 Cal.App.4th at p. 75.) On appeal, we held that the hearing officer abused his discretion when it excluded the testimony of her daughter. (Ibid.) The hearing officer made no effort to determine whether there was good cause to exclude the daughter's testimony. (Id. at p. 98.) Furthermore, the daughter's testimony was material, because she denied making certain statements to the social worker. (Id. at p. 99.) Gonzalez is readily distinguishable. Unlike in Gonzalez, the hearing officer in Prasad's case did not refuse to admit or exclude Prasad's evidence.
Prasad's reliance on Norasingh is also misguided. In Norasingh, the appellant was denied protective supervision services under the "In-Home Supportive Services Program" (IHSS). (Norasingh, supra, 229 Cal.App.4th at p. 744.) Under IHSS regulations, protective supervision was available only " 'for observing the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons' " and could not be authorized " '[w]hen the need is caused by a medical condition and the form of the supervision required is medical.' " (Id. at p. 754.) Thus, the appellate court concluded reversal was required, because reviewing the record convinced the court that the social worker and the administrative law judge were operating under a misapprehension that the appellant's psychogenic seizures were a medical condition, precluding her from receiving protective supervision for dangerous behaviors related to the seizures. (Id. at p. 757.)
Prasad mischaracterizes Norasingh. He summarizes Norasingh as holding that the hearing officer erred when he found the social worker's testimony took precedence over all other evidence that was submitted. That is not what happened. The Norasingh court found the social worker and administrative law judge fundamentally misunderstood the nature of the appellant's condition. Thus, reversal was necessary. In contrast, there is no indication here that Chancellor was operating under some fundamental misconception regarding the nature of the alleged abuse. Therefore, the hearing officer's reliance on her evidence does not require reversal of his decision.
Based on the foregoing, we do not believe the hearing officer's determination that Chancellor and the evidence she presented was credible demonstrates that Prasad was deprived of a fair grievance hearing.
f. "Standard of Proof" for the Administrative Review
Next, Prasad vaguely claims the administrative review procedure utilized by the Department "lacked any standard of proof for the Director[] and the grievance officer to apply." It is not clear what Prasad is referring to when he claims the process lacked a "standard of proof." To the extent Prasad is referencing the duties of the grievance officer and the trial court, the statutory scheme sets forth exactly what "standard of proof" is applicable. The Department finds a report is substantiated if, based on its examination of the evidence, it is " 'more likely than not that child abuse . . . occurred.' " (Gonzalez, supra, 223 Cal.App.4th at p. 85; Pen. Code, § 11165.12, subd. (b).) Thus, "[t]he question before the hearing officer, and the trial court, was whether the evidence established a 'substantiated' report of 'child abuse.' (Pen. Code, § 11169, subd. (a).)" (Gonzalez, supra, at p. 85.) There is nothing in the record that indicates the hearing officer or the trial court ignored these duties.
g. Breach of Mandatory Duties
Lastly, Prasad argues his due process rights were violated, because "[t]he statutes authorizing the adoption of the DSS Manual and the content of the regulations in chapter 31-100 of the DSS Manual clearly demonstrate that those regulations are law making and not merely interpretive of existing statutory provisions." He claims he was denied a fair hearing, because the Department breached these mandatory duties. He explains that "the regulations created specific legal requirements that do not exist outside the regulations" and implores this court to hold "the regulations in chapter 31-100 of the DSS Manual" to be "quasi-legislative," creating mandatory duties for the Department to follow.
In support of his argument, Prasad cites to State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339 (State Hospitals). In State Hospitals, our Supreme Court concluded the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) conferred a mandatory duty on the State Department of Mental Health (DMH). Thus, the plaintiff's complaint sufficiently alleged DMH breached its mandatory duty, because it failed to evaluate an inmate with two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, as required under former Welfare and Institutions Code section 6601, subdivision (d). (State Hospitals, supra, at p. 350.) Prasad does not explain how State Hospitals, which dealt with the SVPA, is applicable here. He merely argues State Hospitals is directly on point, because like in State Hospitals, the Department admitted it breached the "mandatory duties" set forth under the DSS Manual when it undertook the subpar investigation.
State Hospitals, however, does not hold that the DSS Manual created mandatory duties. Additionally, even if it were applicable here, Prasad does not explain or provide legal analysis on how breaching mandatory duties while investigating a claim of child abuse renders the subsequent grievance hearing procedurally unfair. Thus, we must find Prasad waived this argument for failing to develop it on appeal. "An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument . . . , [they are] . . . waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
This argument is one of several made by Prasad that are either poorly developed on appeal or unsupported by legal analysis or citations to authority. For example, in the same section where he claims a violation of his due process rights, Prasad makes several generalized arguments pertaining to the evidence presented at the hearing. He argues the trial court relied on hearsay statements made by Chancellor, such as the fact that the officers investigating the allegations of abuse told Chancellor that the forensic interviewer had found Prasad's older daughter to be credible. Prasad, however, does not provide any citation to authority or legal analysis explaining how or why relying on Chancellor's statements is erroneous in the context of an administrative hearing. In fact, strict adherence to the normal rules of evidence is unnecessary in the context of administrative hearings. (See Gov. Code, § 11513.) Having failed to support his argument, we find this claim waived. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852.) We address other unsupported or vague arguments throughout this opinion.
b. Substantial Evidence Supported the Trial Court's Denial
i. Overview
Under Penal Code section 11169, an agency must forward "substantiated" reports of "child abuse." (Pen. Code, § 11169, subd. (a).) A "substantiated report" is defined as "a report that is determined by the investigator who conducted the investigation to constitute child abuse or neglect, as defined in [Penal Code] Section 11165.6, based upon evidence that makes it more likely than not that child abuse or neglect, as defined, occurred." (Pen. Code, § 11165.12, subd. (b).) Penal Code section 11165.6 defines child abuse or neglect to include sexual abuse as defined under Penal Code section 11165.1, which includes "[t]he intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose." (Id., subd. (a)(4).)
"Section 1094.5 of the Code of Civil Procedure governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. A trial court's review of an adjudicatory administrative decision is subject to two possible standards of review depending upon the nature of the right involved. [Citation.] If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence. [Citations.] The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings. [Citation.] If, on the other hand, the administrative decision neither involves nor substantially affects a fundamental vested right, the trial court's review is limited to determining whether the administrative findings are supported by substantial evidence." (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313.)
Courts have concluded that "the familial and informational privacy rights identified in Burt [v. County of Orange (2004) 120 Cal.App.4th 273] are sufficient to establish that there is substantial impact on fundamental vested rights when . . . a parent is listed on the CACI." (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 928 (Saraswati).) Thus, trial courts must exercise their independent judgment when determining whether a report before the Department is substantiated. (Gonzalez, supra, 223 Cal.App.4th at p. 84.) On appeal following the trial court's judgment, the reviewing court must apply the substantial evidence standard of review and uphold the trial court's decision if it is supported by substantial evidence. (Id. at pp. 84-85.)
ii. Analysis
When it denied Prasad's petition for writ of administrative mandate, the trial court reasoned that "[i]t is possible that a substandard investigation, which violates various policies and procedures, could still generate sufficient evidence to substantiate a report of sexual abuse." Prasad argues the trial court's conclusion is not well-taken. He claims Chancellor's investigation was faulty and did not comport with procedures set forth in the DSS Manual, because Chancellor closed the investigation before the MDI interview, did not interview Prasad, did not visit Prasad's home, and did not interview other family members. Prasad insists the substandard investigation by Chancellor could not sufficiently amount to evidence substantiating the child sexual abuse claims; thus, the trial court should not have relied on it when it made its independent review.
We first address Prasad's claim that Chancellor's investigation cannot amount to substantial evidence, because she did not comply with the procedures generally set forth under the DSS Manual and California Code of Regulations, title 11, section 901.
We find Prasad's conclusory citations to the DSS Manual and the California Code of Regulations do not aid him. In particular, Prasad relies on California Code of Regulations, title 11, section 901, subdivision (a) (DOJ Rule 901(a)). This section was repealed and replaced with new text in 2010. Both parties, however, cite to the old version of DOJ Rule 901(a), which defined an "active investigation" as one in which, at a minimum, included: "assessing the nature and seriousness of the known or suspected abuse; conducting interviews of the victim(s) and any known suspect(s) and witness(es) when appropriate and/or available; gathering and preserving evidence; determining whether the incident is substantiated, inconclusive, or unfounded; and preparing a report that will be retained in the files of the investigating agency." (Former Cal. Code Regs., tit. 11, § 901, subsequently amended operative Jan. 5, 2010.)
The current version of California Code of Regulations, title 11, section 901 is titled "Form Required for Submitting Report of Suspected Child Abuse or Severe Neglect." This section mandates that agencies required to report instances of known or suspected child abuse or severe neglect for inclusion in the CACI must make the report on the "BCIA 8583" form. (Cal. Code Regs., tit. 11, § 901.) The definition of "active investigation" found in the former version of Code of Regulations, title 11, section 901 is no longer found in the California Code of Regulations.
Assuming without deciding that the requirements set forth under former DOJ Rule 901(a) apply in this case, we disagree with Prasad's determination that Chancellor's investigation was substandard under its definition. Prasad reiterates that Chancellor failed to interview him. Former DOJ Rule 901(a), however, does not absolutely require a suspect be interviewed. Interviews are mandated "when appropriate and/or available." (DOJ Rule 901(a).) As the Department notes, Chancellor did not initially interview Prasad, because there was a pending criminal investigation against him and the police department asked Chancellor not to conduct an interview. Although she did not speak with Prasad about the allegations, Chancellor received and considered numerous documents from Prasad which he claimed were exculpatory.
Prasad, however, argues the regulations found in the DSS Manual required Chancellor to interview Prasad, visit Prasad's home, and interview other family members. He does not specify which regulations mandate these interviews. Upon our review, it appears that DSS Manual section 31-125.2 specifies that "[t]he social worker investigating the referral shall have in-person contact with all of the children alleged to be abused, neglected or exploited, and at least one adult who has information regarding the allegations." DSS Manual section 31-125.2.22.221, subdivision (b) states that a social worker shall conduct an in-person investigation with "[a]ll parents who have access to the child(ren) alleged to be at risk of abuse, neglect, or exploitation."
As noted in the previous part of this opinion, Prasad argued the statutes authorizing the adoption of the DSS Manual and the contents of the regulations found in Chapter 31-100 demonstrate the manual has the force of law. Again, Prasad does not cite to any legal authority for this claim. Nor does he provide any analysis, aside from this conclusory assertion. We therefore treat this point as waived. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852.)
Assuming DSS Manual section 31-125.2.22.221 required Chancellor to conduct an in-person interview with Prasad, we find the trial court correctly concluded that a substandard investigation can still generate sufficient evidence to substantiate a report of child sexual abuse. As defined in Penal Code section 11165.12, a report of child abuse is substantiated if the investigator determines it is more likely than not that it occurred based on the evidence. Certainly, the social worker's failure to conduct certain interviews, such as an in-person interview with Prasad, bears on whether the report was substantiated. Such omissions—or lack of evidence—tend to indicate the report is unfounded or inconclusive. However, the omissions do not automatically render the decision reached by the Department, the hearing officer, and the trial court erroneous.
Prasad strenuously argued to the trial court that Chancellor's investigation was substandard. Thus, it is clear the trial court was aware of and considered the alleged deficiencies that occurred during the investigation. Prasad also presented his own evidence refuting the claims of abuse. However, the trial court was also presented with evidence obtained from the Department's investigations. Exercising its independent judgment, the court found the evidence, despite its deficiencies, established that the report was substantiated. In other words, the court concluded that notwithstanding the alleged problems with Chancellor's investigation, her investigation still generated sufficient evidence to conclude it is more likely than not the abuse occurred.
Next, Prasad claims the trial court and the Department relied on evidence that was not in the administrative record, such as the contents of the MDI, Chancellor's qualifications as an expert, her testimony that Prasad had an open criminal case against him, and her testimony at a custody hearing at family law court. Prasad is correct that it appears the actual MDI is not a part of the administrative record. The trial court and the Department referenced the MDI through statements made by Chancellor at the family court hearing in January 2010 and her investigative narrative. These documents and transcripts were all a part of the administrative record and were presented to the hearing officer prior to the hearing.
The statute governing evidence in administrative proceedings, Government Code section 11513, subdivision (d), provides in pertinent part: "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." Here Chancellor's statements about the MDI interview, although hearsay, supplemented her own investigation of the allegations, including her interview with Prasad's daughters. Thus, the hearing officer and the trial court properly considered it as evidence.
As discussed earlier, Prasad argued that the hearing officer erred when he considered hearsay evidence during the grievance hearing. Prasad, however, does not provide any argument or analysis on whether the normal rules of evidence applicable in trial proceedings should apply in the administrative context.
In his briefs on appeal, Prasad claims he was never provided with this evidence. However, according to the declaration of the Department's custodian of records, the transcript and investigative narrative were documents Prasad himself submitted as exhibits prior to the grievance hearing.
Lastly, Prasad makes an underdeveloped argument that the Legislature's placement of this statute in the Penal Code implies that one must be charged and convicted of a crime before placement in the CACI. This argument is without merit. The plain language of Penal Code section 11165.12 rebuts Prasad's claim. A substantiated report is one in which an investigator determines, based on the evidence, is more likely than not that child abuse or neglect occurred. (Pen. Code, § 11165.12.) Penal Code section 11169 requires agencies to forward all substantiated reports for inclusion in the CACI. If the Legislature had intended for a substantiated report—and thus inclusion in the CACI—to only arise from criminal convictions, it would have worded the statute differently.
In his opening brief, Prasad states that "[Child Abuse and Neglect Reporting Act] CANRA contemplates criminal acts of child abuse before placement of a person in the CACI database. [Citation.] Prasad was never arrested or charged with a crime for child abuse." --------
Gonzalez, supra, 223 Cal.App.4th at page 89 does not aid Prasad's claim. In Gonzalez, we noted that "the placement of CANRA supports an inference that it was aimed at criminal conduct, and that the Legislature expected its application to be guided by at least some of the substantive principles of criminal law." (Ibid.) Although CANRA is aimed at criminal conduct, in no way did we imply in Gonzalez that a report cannot be substantiated unless there is a criminal conviction.
Based on the foregoing, we do not find the trial court erred when it denied Prasad's petition for writ of administrative mandate. There is sufficient evidence in the record to support its decision. After the first referral, the record reflects Chancellor interviewed both daughters about the alleged abuse. During the interview, both girls confirmed to Chancellor that Prasad pinched their bottoms and Prasad climbed into the bathtub with them. The daughters' statements were consistent with the statements made by Rattan. Police also confirmed the older daughter's statement to Chancellor was consistent with her statements to the forensic interviewer at her MDI, and the forensic interviewer found her to be a reliable witness. While investigating the allegations, Chancellor received numerous documents from Prasad that he claimed were exculpatory. However, based on her training and experience, she believed the allegations to be substantiated.
Thus, substantial evidence supported the trial court's determination that based on its independent review, the allegations of child abuse against him were substantiated.
2. Denial of the Motion for Reconsideration
a. Standard of Review
Under Code of Civil Procedure section 1008, subdivision (a), a party affected by an order granted by the court may seek reconsideration of the order based on new law or facts. "The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time." (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) We review a trial court's ruling on a motion for reconsideration under the abuse of discretion standard. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
b. Analysis
After the trial court denied his petition for writ of mandate, Prasad filed a motion for reconsideration based on new law and facts. After considering his arguments, the trial court denied the motion for reconsideration. Upon review of Prasad's motion, we find the denial was not an abuse of discretion.
First, Prasad's motion did not cite applicable new law. Prasad cited to B.H. v. County of San Bernardino (2015) 62 Cal.4th 168 (B.H.). In B.H., our Supreme Court concluded that a sheriff's department had a mandatory and ministerial duty to cross-report child abuse allegations made to a 911 operator to the child welfare agency under CANRA (Pen. Code, § 11164 et seq.), the failure to cross-report supported a finding of a breach of a mandatory duty establishing public entity liability, and the investigating officer did not have a duty to report investigative findings to the child welfare agency under Penal Code section 11166, subdivision (a). (B.H., supra, at p. 175.) B.H. has no bearing on the issues presented in this case.
Prasad also cited to State Hospitals, supra, 61 Cal.4th 339. As we explained earlier, our Supreme Court in State Hospitals concluded the SVPA conferred a mandatory duty on the DMH. (State Hospitals, supra, at p. 350.) State Hospitals had nothing to do with Prasad's claim that Chancellor's failure to follow former DOJ Rule 901(a) and the DSS Manual rendered the evidence obtained from her investigation insufficient to substantiate the child abuse allegations.
Lastly, Prasad also cited to an unpublished decision of the Fifth District Court of Appeal, Hudson v. County of Fresno (Sept. 30, 2015, F067460, F065798) . Although he argues the case is entirely on point, Prasad's reliance on it is in violation of California Rules of Court, rule 8.1115, which provides that "an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action." Hudson cannot be considered "new law" requiring the trial court to grant the motion for reconsideration.
In any event, we find Prasad's reliance on cases like B.H. and State Hospitals demonstrates he possesses a fundamental misunderstanding of the law. B.H. and State Hospitals concern whether an agency's breach of mandatory duties renders a government entity liable for injury. (B.H., supra, 62 Cal.4th 168; State Hospitals, supra, 61 Cal.4th 339.) On appeal, Prasad argues the DSS Manual and former DOJ Rule 901(a) imposed certain mandatory duties on the investigating social worker. However, he is not arguing that due to its breach of duties, the Department of Social Services caused him injury. Rather, he is arguing the breach of the duties rendered the investigation—and the resulting evidence—insufficient as a matter of law. This is entirely different than the legal issues implicated in B.H. and State Hospitals.
Furthermore, we find Prasad's motion for reconsideration did not allege new facts. In his motion, Prasad argued he was deprived of a fair grievance hearing, because he was interrupted multiple times during the hearing, was not permitted to cross-examine Chancellor, and was not given the opportunity to review the evidence that was going to be presented against him. It appears Prasad made these arguments below during the writ proceedings. Thus, Prasad does not allege new facts that would warrant granting the motion for reconsideration.
3. Fees and Costs
a. Fees and Costs Related to Underlying Writ Proceedings
After this court's remand, Prasad filed a motion for attorney fees and costs in the amount of $116,597.78, plus an additional $5,000 to compensate his attorney for bringing the motion for fees. The trial court denied the motion without prejudice.
A prevailing party in a civil lawsuit is entitled to his or her costs. (Code Civ. Proc., § 1032, subd. (a)(4).) "If any party recovers other than monetary relief and in situations other than as specified, the 'prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not . . . ." (Ibid.) "A plaintiff will be considered a prevailing party when the lawsuit yields the primary relief sought in the case." (Pirkig v. Dennis (1989) 215 Cal.App.3d 1560, 1566, disapproved on a different point in Goodman v. Lozano (2010) 47 Cal.4th 1327, 1330.) We review the trial court's prevailing party determination for an abuse of discretion. (City of Santa Maria v. Adam (2016) 248 Cal.App.4th 504, 516.)
Here, the trial court denied Prasad's motion for costs and fees related to the underlying writ proceeding without prejudice, because the motion was premature. We agree with the court's conclusion. At the time Prasad filed his motion for costs and fees related to the original writ proceeding, the trial court had not yet conducted the second hearing on Prasad's writ petition. Thus, even though a prevailing party is entitled to his or her costs, there was no prevailing party at the time the court denied the motion for costs and fees.
b. Attorney Fees on Appeal
Prasad's motion for costs and fees also requested his attorney fees on appeal under Code of Civil Procedure section 1021.5. The trial court denied the request, finding that this court's unpublished decision did not confer a significant benefit to the public.
Code of Civil Procedure section 1021.5 was enacted by the Legislature to provide courts with the authority to award attorney fees under a private attorney general theory. (Bui v. Nguyen (2014) 230 Cal.App.4th 1357 (Bui).) Code of Civil Procedure section 1021.5 provides: "Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any." The moving party for an award of fees must satisfy each element listed in in Code of Civil Procedure section 1021.5. (RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 775.) We review the trial court's ruling for an abuse of discretion. (Id. at p. 776.)
Here, the trial court did not address all three of the elements that must be satisfied before attorney fees may be awarded under Code of Civil Procedure section 1021.5. The court focused on the first element, whether a significant benefit had been conferred to the public. A "significant benefit" can be either pecuniary or nonpecuniary, and the trial court is "required to determine the significance of the benefit as well as the size of the group favorably impacted by making 'a realistic assessment, in light of all the circumstances, of the gains which have resulted in a particular case.' " (Bui, supra, 230 Cal.App.4th at p. 1366.)
On appeal in Prasad I, we found the court applied the wrong standard of review when it considered his petition for writ of mandate. This conclusion was based on settled law. (See Saraswati, supra, 202 Cal.App.4th at p. 928; Gonzalez, supra, 223 Cal.App.4th at p. 84.) Accordingly, the trial court did not err when it determined our decision in Prasad I did not confer a significant public benefit, and it did not abuse its discretion when it denied Prasad's motion for attorney fees.
DISPOSITION
The order denying the petition is affirmed.
/s/_________
Premo, Acting P.J.
WE CONCUR: /s/_________
Mihara, J. /s/_________
Grover, J.