Filed 6/24/16 McClelland v. Director of the Dept. of Health Care Services CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


LARRY McCLELLAND,                                                    B262745

         Defendant and Appellant,                                    (Los Angeles County
                                                                      Super. Ct. No. BC504472)
         v.

DIRECTOR OF THE DEPARTMENT
OF HEALTH CARE SERVICES,

         Plaintiff and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Frederick C. Shaller, Judge. Affirmed.
         Larry McClelland, in pro. per., for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant
Attorney General, Jennifer M. Kim and Brittney M. Lovato, Deputy Attorneys
General, for Plaintiff and Respondent.
      Medi-Cal is California’s enactment of the federal Medicaid program,
designed to provide health care services for the poor and disabled. For a person
older than 55, financial eligibility for Medi-Cal is calculated without including the
value of the person’s principal residence. However, after the person’s death,
Welfare and Institutions Code section 14009.5 requires the Department of Health
Care Services to seek reimbursement from the estate for Medi-Cal benefits
provided during the person’s lifetime. The reimbursement requirement is subject
to several exemptions, or “waivers” by the Department, including (as relevant to
this case) the so-called caretaker and disability exemptions.
      Here, appellant Larry McClelland, as co-trustee of the Christine McClelland
Trust (the Trust), appeals from the judgment following a bench trial in favor of
Toby Douglas, Director of the Department of Health Care Services (Department).
The judgment directs appellant (in his capacity as co-trustee) to reimburse the
Department $61,358.57, plus interest, as repayment for Medi-Cal benefits received
by the settlor of the Trust, his mother, Christine McClelland, during her lifetime.
      In his appeal, appellant contends: (1) the Department’s claim for
reimbursement was untimely under Probate Code section 19202; (2) the trial court
erred in finding that he did not qualify for the caretaker exemption under 42 United
States Code section 1396p, subdivision (b)(2)(B)(ii), a provision of the federal
Medicare Act; (3) the trial court erred in finding that he did not qualify for the
disability exemption provided by 42 United States Code section 1396p, subdivision
(b)(2)(A), also a provision of the Medicare Act; and (4) his due process rights were
violated by the trial court’s failure to hold a final status conference before trial and
by the failure to provide valid notice that a court reporter would not be present to
record the proceedings. We are not persuaded by appellant’s contentions, and
affirm the judgment.

                                           2
                                       BACKGROUND1
Medi-Cal Benefits Paid
       Born August 29, 1919, Christine McClelland (the decedent) was a Medi-Cal
beneficiary from January 1991 to her death on March 2, 2010. In that period, the
Department paid $61,358.87 in health care services and premiums for her benefit.


Decedent’s Property in Trust
       Before her death, by a Declaration of Trust dated in February 2000, the
decedent created a revocable inter vivos trust to own and administer her property
during her lifetime, and to avoid probate upon her death. Concurrently, she
quitclaimed to the Trust ownership of her residence on Potomac Avenue in Los
Angeles. When the decedent died, the Trust owned her residence, which was
valued at $301,567.




1
       No court reporter was present at the trial, and appellant has not presented an
agreed or settled statement on appeal. (See Cal. Rules of Court, rules 8.134, 8.137.)
Rather, the appeal is presented on the basis of a clerk’s transcript. “‘When an appeal is
submitted on a record of this kind, the reviewing court conclusively presumes the
evidence was ample to sustain the trial court’s factual findings. The only question is
whether the findings support the judgment.’ [Citation.]”) (Wright v. Issak (2007) 149
Cal.App.4th 1116, 1122.)
       The minute order of the trial states that three witnesses testified: David Eller, a
representative of the Department’s Third Party Liability and Recovery Division Estate
Recovery Unit, appellant, and Sharon McClelland Boyd (like appellant, a co-trustee).
Also, various exhibits were admitted into evidence. We take our summary of the
evidence from the trial court’s statement of decision, trial exhibits in our record, and
matters of which we have taken judicial notice at the Department’s request (certain
documents filed in the trial court, but absent from the clerk’s transcript). In the
Discussion section of our opinion, we add any additional evidence properly before us as
necessary to resolve appellant’s contentions.

                                             3
Pre-death Family Litigation
       Under the trust instrument, as here relevant, the named trustees were three of
decedent’s children: Sharon McClelland (later in the record identified as Sharon
McClelland Boyd), Kathryn McClelland, and appellant. These three were also
beneficiaries of the Trust, along with another son, Anthony McClelland.2
       In August 2004, Anthony filed a Petition for Appointment of a Conservator
for the decedent and her estate. Apparently in response, by a trust amendment
dated October 15, 2004, the decedent deleted Anthony as a beneficiary, and on
October 26, 2004, the petition was denied. In 2007, Anthony filed another such
petition, which he withdrew after a restraining order was granted against him,
directing that he stay away from the decedent and her residence.


Holloway Letter and the Department’s First Demand Letter
       On April 6, 2010, attorney George Holloway sent a letter to the Department
at its Sacramento address informing the Department of the decedent’s death. He
did not identify himself as the attorney for the Trust, the trustees, or any other
client, nor did he identify any court proceeding involving the trust or the
decedent’s estate.
       In the letter, Holloway listed the decedent’s name, social security number,
and dates of birth and death. He wrote that her estate and trust might owe money
for medical services rendered during her lifetime. He instructed the Department to
contact trustees Sharon McClelland and Kathryn McClelland if the Department
had any questions, gave their addresses, and attached a copy of the death
certificate.


2
       There were other named beneficiaries who are not relevant to this appeal.

                                            4
      On June 23, 2010, the Department sent a payment demand letter to
Holloway and trustee Sharon McClelland, stating that the Department was entitled
to $61,358.57 from the decedent’s estate under Welfare and Institutions Code
section 14009.5.


Probate Action
      On September 23, 2010, without notice to the Department, Holloway, as
counsel for Anthony McClelland, filed a probate action seeking an order granting
Anthony authority to administer the estate. Appellant (representing himself) filed
an objection, citing the existence of the Trust and stating that Anthony had been
removed as a beneficiary.
      In May 2011, represented by attorney Crystal Hill, appellant and the other
two trustees filed additional objections. Ultimately, the probate case was
dismissed with prejudice in September 2011.


Additional Demand Letters
      Before the dismissal of the probate case, on December 7, 2010, the
Department sent a payment demand letter to appellant, followed by several follow-
up letters from April 2011 through October 2012, sent to appellant, his estate
attorney (Crystal Hill), and Sharon McClelland. The claim was never paid.


The Department’s Lawsuit
      On March 29, 2013, the Department filed a complaint to enforce and collect
on its Medi-Cal creditor’s claim from the decedent’s estate under Welfare and
Institutions Code section 14009.5, naming as defendants Sharon McClelland Boyd,
Kathryn McClelland, and appellant as trustees of the Trust. Kathryn McClelland

                                         5
was apparently not served, and the court dismissed her. Appellant and Sharon
McClelland Boyd were served, but only appellant filed an answer. At trial,
appellant and Sharon McClelland Boyd appeared in pro. per. Following the
presentation of evidence and argument, the trial court issued a tentative statement
of decision, later followed by a final statement of decision, in which it concluded
that appellant and Sharon McClelland Boyd, as trustees of the Trust, owed the
Department $61,358.87, plus interest, in reimbursement. Appellant filed a notice
of appeal from the resulting judgment. Sharon McClelland Boyd did not, and is
not a party to the appeal.


                                       DISCUSSION
      To put the issues on appeal in context, we begin with a brief explanation of
the Medi-Cal statutory scheme.
      “Under the federal Medicaid Act, 42 United States Code section 1396 et
seq., the federal government will partially reimburse states that provide medical
treatment to the poor. If a state decides to participate in the program, the state
must enact legislation which meets various federal requirements. [Citation.]
California’s Medicaid program, known as the ‘California Medical Assistance
Program,’ or Medi-Cal, is found in the Welfare and Institutions Code at section
14000 et seq.” (Belshé v. Hope (1995) 33 Cal.App.4th 161, 164.)
      “The Medicaid Act provides that applicants may qualify for Medicaid
benefits if they are aged, blind, or disabled and their income and resources are
insufficient to meet the costs of health care. [Citation.] If the applicant is over the
age of 55, his or her principal residence is excluded when determining eligibility.
This allows elderly applicants, despite having a valuable asset, to qualify for
Medicaid covered services. [Citation.] In exchange, federal law requires that the

                                           6
state recover all or a portion of the Medicaid benefits paid during the recipient’s
lifetime from his or her estate at death. [Citations.] [¶] In compliance with federal
law, state law [Welf. & Inst. Code, § 14009.5, subd. (a)] also requires the Director
[of the Department of Health Care Services] to seek reimbursement from the
deceased recipient’s estate or from recipients of property from the decedent by
distribution or survival. [Citation.] This requirement is expressed in mandatory
terms. Property once held by the decedent and transferred to heirs by a trust is part
of the decedent’s estate and is subject to recovery under the same statute.
[Citation.]” (Maxwell-Jolly v. Martin (2011) 198 Cal.App.4th 347, 353-354.)
        With this background in mind, we consider appellant’s contentions on
appeal.


        I.     Timeliness of the Department’s Claim
        Based on the Holloway letter, which informed the Department of the
decedent’s death and advised that her estate and trust might owe money for
medical benefits received during her lifetime, appellant contends that the
Department’s creditor’s claim for reimbursement was untimely under Probate
Code section 19202.3 That section provides, in relevant part: “(a) If the trustee
knows or has reason to believe that the deceased settlor received health care under
[Medi-Cal], . . . , the trustee shall give the State Director of Health Services notice
of the death of the deceased settlor . . . in the manner provided in Section 215. [¶]
(b) The director has four months after notice is given in which to file a claim.”
        Appellant argues that the Holloway letter, dated April 6, 2010, constituted
notice under sections 19202, subdivision (a) and 215, and that the Department had

3
        All undesignated section references in this part of our opinion refer to the Probate
Code.

                                              7
four months from that date under section 19202, subdivision (b) within which to
file a claim against the Trust. Because the Department did not file its complaint
for reimbursement under Welfare and Institutions Code section 14009.5 until
March 2013, appellant asserts that the Department’s creditor’s claim is barred as
untimely.
       Respondent counters, in substance, that the Holloway letter did not
constitute valid notice of the decedent’s death under sections 19202 and 215,
because: (1) Holloway was not a trustee, and section 19202 requires the trustee,
and not some other person, to provide notice, and (2) the notice did not specify a
court proceeding in which the Department might file a claim under section 19202.
We agree with the second point, and thus need not discuss the first. That is, even if
the Holloway letter otherwise constituted valid notice of the decedent’s death, that
notice did not occur in the context of a proceeding in superior court as
contemplated by the Probate Code procedure for handling creditor claims against a
trust. Therefore, the time limit to file a claim under section 19202 did not apply.
Rather, the three-year statute of limitations provided by Code of Civil Procedure
section 338, subdivision (a), applied, and the Department timely filed its action
within that period.4


4
        In its statement of decision, the trial court concluded that the Holloway letter
(dated April 6, 2010) constituted notice of the decedent’s death, and the Department’s
letters to Holloway and trustee Sharon McClelland (dated June 23, 2010, approximately
two-and-a-half months later) constituted claims under section 19202. Thus, the trial court
concluded that the Department met the four-month time limit for filing a claim under that
section.
        On appeal, the Department concedes that the trial court’s reasoning was incorrect,
but argues that we can uphold the judgment on different legal grounds. We agree, given
that the issue presented is one of law. “It is well established that: ‘“The fact that the
action of the [trial] court may have been based upon an erroneous theory of the case, or
upon an improper or unsound course of reasoning, cannot determine the question of its
propriety. . . . [A] ruling or decision, itself correct in law, will not be disturbed on appeal
                                                 8
A. Probate Code Procedure for Creditor Claims
       Part 8 of the Probate Code, sections 19000, et seq., provides a procedure,
including notice and time limits, for processing creditor claims against a deceased
settlor’s revocable trust. (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 254; see
Ross, Cal. Practice Guide: Probate (The Rutter Group 2015) ¶ 2:117.2 et seq., pp.
2-93 et seq.) “A trustee is not required to utilize this formal claims procedure and,
as an alternative, may proceed informally in administering a decedent’s trust. . . .
‘If no probate or trust claims procedure has been initiated, . . . the short limitations
periods applicable to claims filed in probate or trust claims proceedings do not
apply; and the availability of trust property to any creditor of the deceased settlor
“shall be as otherwise provided by law.”’ [Citation; see § 19008.] Thus, absent a
trustee’s election to file a formal notice to claimants, the time to assert a claim
against a decedent’s revocable trust is governed by the more general statute of
limitations for all claims against a decedent embodied in Code of Civil Procedure
section 366.2.” (Wagner, supra, 162 Cal.App.4th at p. 255.)
       The formal claims procedure works as follows. First, the trustee must file “a
proposed notice to creditors” in the superior court, whereupon the court assigns a
case number. After the claim proceeding is opened, the trustee must serve notice
on creditors as provided by the Code. (§ 19003, subds. (a) & (c).) Upon service of
the notice, the creditor has a limited time frame within which to file a claim “with
the court,” and mail a copy to the trustee. (§ 19150, subd. (b).) However, not



merely because given for a wrong reason.’” [Citation.] Thus, ‘[i]f the decision of the
lower court is right, the judgment or order will be affirmed regardless of the correctness
of the grounds upon which the court reached its conclusion.’” (Troche v. Daley (1990)
217 Cal.App.3d 403, 407-408.)

                                             9
mailing a copy to the trustee does not invalidate the claim; rather, “any loss that
results from the failure shall be borne by the creditor.” (Ibid.)
      If the creditor’s claim is timely filed with the court, the trustee “shall allow
or reject the claim in whole or in part.” (§ 19250.) The allowance or rejection
must be filed with the court in writing, and served on the creditor in compliance
with section 215. (§ 19251.) If the claim is rejected, the creditor must bring a
court action, arbitration proceeding, or reference proceeding on the claim within 90
days after service of the rejection notice (if the claim was due when notice was
given), or 90 days after the claim becomes due (if it was not due when the notice
was given). (§ 19255, subd. (a).)
      For most creditor claims, the notice to creditors is governed by section
19003, subdivision (a), which requires the trustee, after filing a proposed notice
with the court, to “publish and serve notice to creditors of the deceased settlor in
the form and within the time prescribed in Chapters 3 (commencing with Section
19040 [which governs the published notice]) and 4 (commencing with Section
19050 [which governs service by mail or personal delivery]). That action shall
constitute notice to creditors of the requirements of this part.” The notice must be
“substantially” in the form suggested by the Probate Code, including notification
of the particular superior court in which the matter is pending, the case number,
and the requirement that a creditor’s claim must be filed with the court and a copy
sent to the trustee. (§§ 19040, 19052.)
      However, for certain public entity creditors, the publication and service of
notice under section 19003, subdivision (a), does not apply. Thus, section 19003,
subdivision (c) provides that “[n]othing in subdivision (a) [which requires notice
by publication and mail or personal delivery] affects a notice or request to a public



                                          10
entity required by Chapter 7 (commencing with Section 19200) [which governs
claims by certain listed public entity creditors].”
        Chapter 7 contains section 19202, the statute on which appellant relies to
argue that the Department’s claim in the instant case was untimely. As we have
noted, section 19202 provides in relevant part: “(a) If the trustee knows or has
reason to believe that the deceased settlor received health care under [Medi-Cal],
. . . , the trustee shall give the State Director of Health Services notice of the death
of the deceased settlor . . . in the manner provided in Section 215.” Section 215
requires “the estate attorney, or if there is no estate attorney, the beneficiary, the
personal representative, or the person in possession of property of the decedent” to
serve the Department at its Sacramento office with notice of the decedent’s death
by mail or personal delivery, including a copy of the death certificate, within 90
days after the death. Under section 19202, subdivision (b), the Department “has
four months after notice is given in which to file a claim,” meaning to file a claim
with the court in which the creditor-claim proceeding is pending (§ 19150, subd.
(b).)


B. Failure to Use the Probate Code Procedure
        If the trustee gives the Department notice of the settlor’s death in
compliance with section 215, but has not invoked the procedure of Part 8 of the
Probate Code by first filing a proposed notice to creditors in the superior court
under section 19003, subdivision (a), the time limit for the Department to file a
claim under section 19202 does not apply. Indeed, there is no court proceeding in
which such a claim could be filed within the meaning of the section 19202. In this
circumstance, the time limit in which the Department must pursue the claim is
provided by the applicable statute of limitations for bringing a lawsuit – Code of

                                           11
Civil Procedure section 338, subdivision (a), which provides a three-year limitation
period to file suit for “‘[a]n action upon a liability created by statute, other than a
penalty or forfeiture.’” (Maxwell-Jolly, supra, 198 Cal.App.4th at p. 352, fn. 5.)
The three-year period begins to run on the date that notice is sent to the
Department in compliance with section 215. (Shewry v. Begil (2005) 128
Cal.App.4th 639, 642, 645-646.)


C. The Department’s Lawsuit was Timely
         Here, the Holloway letter was dated April 6, 2010. Even if it otherwise
constituted valid notice of the decedent’s death under section 215, it was not sent
in connection with a proceeding under Part 8 of the Probate Code. That is, neither
Holloway nor anyone else filed in the superior court an appropriate notice to
creditors under section 19003, subdivision (a). No claim proceeding was opened
in superior court, and the Holloway letter did not refer to such a proceeding. Thus,
the time limit for filing a claim in such a proceeding under section 19202 did not
apply.
         To the extent appellant contends that the Department was required by
section 19202 to file a claim at some point in the September 23, 2010 probate
proceeding instituted by Holloway on behalf of the decedent’s disinherited son,
Anthony McClelland, appellant is mistaken. The procedure for creditor claims
against a trust under Part 8 of the Probate Code does not apply if, to the trustee’s
actual knowledge, a probate has been opened for the decedent’s estate. (§ 19003,
subd. (a); see Arluk Medical Center Industrial Group, Inc. v. Dobler (2004) 116
Cal.App.4th 1324, 1334.) Rather, a similar, though separate, procedure applies to
creditor claims when a probate proceeding is instituted. (§ 9000, et. seq.) That
procedure requires written notice to the Department of the probate proceeding.

                                           12
(§ 9201, subd. (a)(2).) Here, there is no evidence that any such notice was sent to
the Department, and thus the procedure for creditor claims against a probated
estate did not apply.
      Finally, because no creditor claims proceeding under Part 8 of the Probate
Code was instituted, the three-year limitation period of Code of Civil Procedure
section 338, subdivision (a), applied to the Department’s reimbursement claim
(Maxwell-Jolly, supra, 198 Cal.App.4th at p. 363), with the three-year period
beginning upon proper notice to the Department of the decedent’s death in
compliance with section 215. (Shewry, supra, 128 Cal.App.4th at pp. 645-646.)
The Department filed its lawsuit on March 29, 2013, within three years of the
Holloway letter (April 6, 2010). Thus, assuming (without deciding) that the
Holloway letter otherwise constituted valid notice of the decedent’s death under
section 215, the lawsuit was timely.


      II.    Caretaker Exemption
      Appellant contends that the trial court erred in finding that he did not qualify
for the caretaker exemption under 42 United States Code section 1396p,
subdivision (b)(2)(B)(ii), a provision of the Medicare Act. We disagree. As we
explain, whether that exemption applies, as implemented by Medi-Cal, is
determined by administrative proceedings held by the Department, reviewable by
petition for writ of administrative mandate. It is undisputed that appellant did not
comply with this procedure. Thus, under the doctrine of exhaustion of




                                         13
administrative remedies, the caretaker exemption provided no defense to the
Department’s lawsuit.5


       A. Medicaid Caretaker Exemption
       The provision on which appellant relies, 42 United States Code section
1396p, subdivision (b)(2)(B)(ii), provides a limited caretaker exemption that
prevents a state from seeking reimbursement by placing a lien on the home of a
deceased aid recipient. It applies when the aid recipient’s child lived in the
recipient’s home for at least two years immediately before the recipient’s
admission to a medical institution, and the child proves to the satisfaction of the




5
        For reasons not apparent from the record, in its statement of decision, the trial
court reached the merits of defendant’s claim for a caretaker exemption, and found the
evidence insufficient. Although the trial court resolved the question by determining that
appellant did not meet the evidentiary requirements of the exemption, we resolve the
issue on a different basis, because, as a matter of law, appellant’s claim for the exemption
was barred by his failure to exhaust administrative remedies, and the trial court lacked
jurisdiction to consider it. (See Troche, supra, 217 Cal.App.3d at pp. 407-408 [“‘[i]f the
decision of the lower court is right, the judgment or order will be affirmed regardless of
the correctness of the grounds upon which the court reached its conclusion.’”].) In any
event, even if the question whether appellant was entitled on the evidence to the caretaker
exemption were properly before us, we would affirm the trial court’s conclusion, because
we have no reporter’s transcript of the trial and cannot review the evidence presented.
(Wright, supra, 149 Cal.App.4th at p. 1122 [absent a reporter’s transcript, it is
conclusively presumed losing party did not carry its burden of proof].)

                                            14
state that the child provided care that permitted the recipient to remain at home
rather than in an institution.6
      In state health care systems that participate in Medicaid, the exemption is
implemented by regulations promulgated by the state. Thus, 42 United States
Code section 1396p, subdivision (b)(3)(A) provides that the relevant “State agency
shall establish procedures (in accordance with standards specified by the Secretary
[of Health and Human Services]) under which the agency shall waive the
application of this subsection [which permits reimbursement from a deceased aid
recipient’s estate] . . . if such application would work an undue hardship as
determined on the basis of criteria established by the Secretary.” (42 U.S.C.,
§ 1396p, subd. (b)(3)(A).)


      B. Medi-Cal Caretaker Exemption
      California incorporates the Medicare caretaker exemption by statute and
administrative regulations. Welfare and Institutions Code section 14009.5,


6
       42 United States Code section 1396p, subdivision (b)(2)(B)(ii) provides in
relevant part:
       “(b) Adjustment or recovery of medical assistance correctly paid under a State
plan. [¶] . . .
       “(2) Any adjustment or recovery under paragraph (1) may be made only after the
death of the individual’s surviving spouse, if any, and only at a time – [¶] . . . [¶]
       “(B) in the case of a lien on an individual’s home under subsection (a)(1)(B),
when– [¶] . . . [¶]
       “(ii) no son or daughter of the individual (who was residing in the individual’s
home for a period of at least two years immediately before the date of the individual’s
admission to the medical institution, and who establishes to the satisfaction of the State
that he or she provided care to such individual which permitted such individual to reside
at home rather than in an institution), is lawfully residing in such home who has lawfully
resided in such home on a continuous basis since the date of the individual’s admission to
the medical institution.”

                                           15
subdivision (c)(1) provides that “[t]he department shall waive its claim, in whole or
in part, if it determines that enforcement of the claim would result in substantial
hardship to other dependents, heirs, or survivors of the individual against whose
estate the claim exists.”
      The criteria for determining substantial hardship are listed in Title 22,
California Code of Regulations, section 50963. Subdivision (a) of that regulation
provides, in relevant part: “(a) The Department shall waive an applicant’s
proportionate share of the claim [meaning the Department’s claim for
reimbursement] if the applicant can demonstrate through submission of an
Application for Hardship Waiver, form DHCS 6195 (05/15) and documentation to
substantiate hardship, or, if applicable, at an estate hearing, that enforcement of the
Department’s claim would result in substantial hardship to the applicant. In
determining the existence of substantial hardship, the Department shall waive an
applicant’s proportionate share of the claim if one or more of the following criteria
apply: [¶] . . . [¶] (4) When the applicant provided care to the decedent for two
or more years that prevented or delayed the decedent’s admission to a medical or
long-term care institution. The applicant must have resided in the decedent’s home
during the period care was provided and continue to reside in the decedent’s home.
The applicant must provide written medical substantiation from a licensed health
care provider(s), which clearly indicates that the level and duration of care
provided prevented or delayed the decedent from being placed in a medical or
long-term care institution.”
      After the Hardship Waiver is submitted, “[t]he Department shall provide
written notification to the applicant of its decision regarding the hardship waiver
application within 90 days of the submission of the application.” (Title 22, Cal.
Code of Regs., § 50963, subd. (f).) If the Hardship Waiver is denied, the applicant

                                          16
can request an estate hearing (id. at § 50964, subd. (a)), which is held before a
hearing officer (id. at subd. (b)) and at which “the applicant and/or the applicant’s
representative shall have the opportunity to be heard, offer evidence, and present
witnesses in support of the request for a waiver. All testimony shall be submitted
under oath, affirmation, or penalty of perjury. The proceedings at the estate
hearing shall be electronically recorded” (id. at subd. (a)(3).) If the final decision
after hearing is unfavorable to the applicant, “[j]udicial review of the final decision
of the Department may be had by filing a petition for a writ of administrative
mandate in accordance with the provisions of Section 1094.5, et seq., Code of Civil
Procedure.” (Id., subd. (f).)


      C. The Instant Case
      “As a general rule where ‘an administrative remedy is provided by statute,
relief must be sought from the administrative body and this remedy exhausted
before the courts will act; . . .’ [Citation.] When the issue is properly pursued,
jurisdiction of the court to entertain an action for judicial relief is conditional upon
a completion of the administrative procedure. [Citation.] The rule applies as well
when the administrative procedure is provided by regulation, resolution or
ordinance. [Citations.] The rationale for the rule has been explained as follows:
‘The administrative claim or “cause of action” is within the special jurisdiction of
the administrative agency, and the courts may act only to review the final
administrative determination. Allowing a suit prior to such a final determination
would constitute interference with the subject matter jurisdiction of another
tribunal. Accordingly, the exhaustion of an administrative remedy is a
jurisdictional element in California.’ [Citations.]” (Green v. City of Oceanside
(1987) 194 Cal.App.3d 212, 219-220.)

                                           17
      Here, appellant produced no evidence to show that he complied with the
administrative procedure for obtaining the caretaker exemption. On December 7,
2010, the Department sent appellant a letter at the decedent’s address, where
appellant resided, and enclosed a Hardship Waiver form. The letter explained that
the form was “being provided to allow you the opportunity to apply for a waiver of
your proportionate share of the claim. The completed application and required
supporting documents MUST be mailed to the address shown above. . . . Failure to
do so will result in an automatic rejection of your request for a hardship waiver.”
The record contains no evidence that appellant returned the form and was granted
an exemption (whether by the Department, or by issuance of a writ of
administrative mandate following a denial by the Department). Indeed, appellant
does not dispute that he failed to comply with this procedure. Thus, the caretaker
exemption was not a defense to the Department’s lawsuit.
      Appellant argues that the California procedure is in conflict with federal law,
and thus invalid. The basis of his argument is that the Hardship Waiver application
“consists of listing the decedent’s estate assets, applicant’s assets and debts, and
applicant’s income, savings and expenses,” whereas the Medicaid caretaker
exemption does not require disclosure of this information.
      However, the proper forum to raise a claim that the Hardship Waiver
application conflicts with Medicaid is not in defense of a lawsuit for Medi-Cal
reimbursement under Welfare and Institutions Code section 14009.5, but in the
administrative procedure provided by the Department to determine entitlement to
the caretaker exemption. In any event, nothing in the Hardship Waiver application




                                          18
violates federal law.7 The application is used for several categories of hardship,
not simply for the caretaker exemption. For some of those exemptions (for
instance, the exemption that exists if inheritance will enable the applicant to
discontinue public assistance) information such as the estate assets and the
applicant’s assets, liabilities, and income are necessary. The form clarifies that all
the information requested is “voluntary,” though failure to provide information
may result in a denial of the waiver application.
      The form directs the applicant to “check the criteria below that qualifies the
applicant for a hardship waiver. Attach documentation that provides substantiation
for the criteria selected. Failure to provide sufficient substantiation may result in a
denial of the waiver.” Among the waivers listed is the caretaker exemption: “The
applicant provided care to the decedent for two or more years that prevented or
delayed the decedent’s admission to a medical or long-term care institution. The
applicant must have resided in the decedent’s home during the period care was
provided and continue to reside in the decedent’s home. The applicant must
provide written medical substantiation from a licensed health care provider(s),
which clearly indicates that the level and duration of care provided prevented or
delayed the decedent from being placed in a medical or long-term care institution.”
This explanation of the caretaker exemption, and the required documentation,
tracks the federal exemption.
      Thus, the Hardship Waiver application does not require disclosure of
irrelevant information in order to receive the caretaker exemption, and does not
impose requirements to receive the exemption that are inconsistent with federal

7
        The form can be found at
http://www.dhcs.ca.gov/formsandpubs/laws/regs/Documents/DHCS-6195-08-2007.pdf.
We take judicial notice of it. (Evid. Code, § 452, subd. (b).)

                                          19
law. That the form asks for additional information on a voluntary basis does not
render the entire California procedure invalid such that appellant was not required
to comply.


      III.   Disability Exemption
      Appellant contends that the trial court erred in finding that he did not qualify
for the disability exemption provided by 42 United States Code section 1396p,
subdivision (b)(2)(A). We disagree.


      A. Medicaid Disability Exemption
      42 United States Code section 1396p, subdivision (b)(2)(A) states in relevant
part: “(b) Adjustment or recovery of medical assistance correctly paid under a
State plan. [¶] . . . [¶] (2) Any adjustment or recovery under paragraph (1) may
be made only after the death of the individual’s surviving spouse, if any, and only
at a time– [¶] (A) when he has no surviving child who . . . is blind or disabled as
defined in section [1614 of the Social Security Act, 42 U.S.C.A. § 1382c].”


      B. Medi-Cal Disability Exemption
      In California, Welfare and Institutions Code section 14009.5 implements the
disability exemption in subdivision (b)(2)(C): “The department may not claim in
any of the following circumstances: [¶] . . . [¶] (2) Where there is any of the
following. [¶] . . . [¶] (C) A surviving child who is blind or permanently and
totally disabled, within the meaning of Section 1614 of the federal Social Security
Act (42 U.S.C.A. § 1382c).”
      The statute is supplemented by Title 22, California Code of Regulations,
section 50961, subdivision (d)(5): “(d) An exemption from the Department’s

                                         20
claim exists in any of the following circumstances: [¶] . . . [¶] (5) When, as of
the date of the Department’s notice of claim, there is a surviving child of the
decedent who is blind, or disabled, within the meaning of Section 1614 of the
federal Social Security Act (42 USC Section 1382c).” (Italics added.)
      The “notice of claim” refers to the notice required by Title 22, California
Code of Regulations section 50962, subdivision (c), which provides that “[t]he
Department shall provide written notice to the person handling the decedent’s
estate, which includes the following: [¶] (1) The basis for the estate claim; the
specific statutes and regulations supporting the claim; the basis for an exemption
from the claim; the right to seek a waiver of the Department’s claim; the right to
contest the Department’s claim; the right to request an estate hearing if dissatisfied
with the waiver decision; the timeframes for requesting a waiver or estate hearing;
and the basis for the applicant to seek a waiver or estate hearing due to substantial
hardship; [¶] (2) A copy of the itemized Medi-Cal payments that constitute the
basis for the claim; and [¶] (3) An Application for Hardship Waiver, form DHCS
6195 (05/15).”


      C. The Department Concedes Exhaustion of Administrative Remedies Does
         Not Apply

      Although, as we have discussed, the Department provides a full
administrative procedure for determining whether an applicant is entitled to the
caretaker exemption, with judicial review by writ of administrative mandate, it
does not do so for the disability exemption. Title 22, California Code of
Regulations, section 50966, subdivision (a), provides: “(a) The Department shall
withdraw its claim against the estate of a deceased Medi-Cal beneficiary when the
surviving child or his or her representative provides [certain] documentary

                                          21
evidence to the Department of Health Care Services, Estate Recovery Section, . . .
which demonstrates the surviving child was blind or disabled as of the date of the
Department’s notice of claim.” The required documentation is forwarded to the
Department of Social Services (DSS), which makes the determination whether the
exemption applies. (Id. at subd. (f).) However, a denial of the exemption by DSS
“is not subject to review through an administrative hearing.” (Id. at subd. (g).)
      Because no administrative review is provided, the Department concedes that
the doctrine of exhaustion of administrative remedies does not apply to the
disability exemption, and that the trial court had jurisdiction to consider the issue.
Thus, we consider whether the trial court’s findings regarding appellant’s lack of
entitlement to the exemption comport with the relevant law and support the
judgment.


      D. Evidence At Trial and the Trial Court’s Ruling
      In the instant case, the Holloway letter of April 6, 2010 instructed the
Department to contact trustees Sharon McClelland and Kathryn McClelland if the
Department had any questions about reimbursement. On June 23, 2010, the
Department sent a payment demand letter to Holloway and to Sharon McClelland
(at the address for her given in the Holloway letter), stating that the Department
was entitled to $61,358.57 from the decedent’s estate under Welfare and
Institutions Code section 14009.5. The letter and its attachments contained all the
items required for a notice of claim under Title 22, California Code of Regulations,
section 50962, subdivision (c).
      At trial, appellant produced records from the Social Security Administration
showing that, following an administrative hearing on his request for a disability
determination, an administrative law judge ruled on March 2, 2012, that he was

                                          22
disabled under the Social Security Act, and that the onset of the disability was
December 1, 2011. It appears that appellant initially applied for a disability
determination with an onset date of December 31, 2009, but later amended his
requested onset date to December 1, 2011, which is the date relied upon by the
administrative law judge in the ruling.
      In the present case, considering this evidence in its statement of decision, the
trial court ruled that appellant had not met his burden of proof because the onset of
his disability as determined by the administrative law judge, December 1, 2011,
occurred after the Department’s notice of claim was sent on June 23, 2010, in
response to the Holloway letter. The trial court noted that appellant “testified to
the circumstances of why, when he was previously disabled during his mother’s
life, he changed the date so that he would not have to refund unemployment
[insurance] benefits. But this claim of onset of the disability is unsubstantiated by
letters, medical reports, medical opinions, or any other admissible evidence. The
court cannot find on the evidence submitted . . . that [appellant] was disabled
during his mother’s life or at the time the DHS gave notice of its claim; rather the
only evidence of any date of disability is 12/01/2011.”8




8
       As an alternative ground, the trial court also found that the evidence was
insufficient to prove that appellant was “permanently and totally disabled,” because the
administrative law judge’s decision stated that “[m]edical improvement is expected with
appropriate treatment. Consequently, a continuing disability review is recommended in
24 months.” However, the disability exemption does not require a permanent and total
disability. A disability under 42 United States Code section 1382c – the applicable
provision for determining whether a person qualifies as disabled – means a disability that
“can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” (42 U.S.C. § 1382c, subd. (a)(3).)
On appeal, the Department does not rely on this portion of the trial court’s ruling.

                                            23
      E. Resolution on Appeal
      On appeal, appellant contends that the federal disability exemption under 42
United States Code section 1396p, subdivision (b)(2)(A), “says nothing about
when the disability has to occur, only that [the child must] be disabled at the time
of the recipient’s death.” The decedent died on March 2, 2010. According to
appellant, the evidence showed he was disabled as of December 11, 2009 (the date
of onset he originally claimed before the Social Security Administration), and that
the trial court’s factual finding that he was not disabled until December 1, 2011
was incorrect. Therefore, he contends that he was disabled when the decedent
died, and he is entitled to the exemption.
      However, as we have already explained, the record is insufficient for him to
challenge the correctness of the trial court’s factual findings. Thus, even if he were
correct that the federal disability exemption applies when the disability exists at the
time of the aid recipient’s death, his contention fails.
      Under Medi-Cal’s implementation of the disability exemption, the disability
must exist as of the date of the Department’s notice of claim (tit. 22, Code of Cal.
Regs., § 50961, subd. (d)(5)). As the trial court ruled, the Department’s notice of
claim was sent on June 23, 2010, but the evidence showed that the onset of
appellant’s disability was not until December 1, 2011. Thus, appellant failed to
qualify under the Medi-Cal exemption.
      Finally, to the extent appellant contends that the Medi-Cal exemption is
invalid because it is inconsistent with the Medicaid exemption regarding the
required date of disability onset, that inconsistency, if it exists (an issue we do not
address) is immaterial in appellant’s case. As we have noted, appellant does not
qualify under the federal exemption as he interprets it. Thus, any purported



                                             24
inconsistency between the exemption as provided by Medicaid and Medi-Cal does
not affect the outcome of appellant’s case.


       IV.    Failure to Hold a Final Status Conference
       Appellant contends that he was denied due process, because no final status
conference was held before trial. We disagree.
       The clerk’s transcript on appeal reflects that a final status conference was
initially set for November 10, 2014. However, on February 25, 2014, the case was
assigned to a different judge, who vacated the prior final status conference date,
and reset it for November 19, 2014, the same date as trial. The Department filed
and served its witness and exhibit lists on November 17, 2014. The court’s minute
order of November 19, 2014, describes the nature of the proceedings as “TRIAL;
FINAL STATUS CONFERENCE.” Thus, from the record, it does not
affirmatively appear that no final status conference was held. Rather, it appears
that the final status conference occurred immediately before trial.
       In any event, the basis of appellant’s contention that he was denied due
process is Los Angeles Superior Court rule 3.25 (rule 3.25), which states in
relevant part that “the court will set [the final status conference] not more than ten
days prior to the trial date” (subd. (f)), and that “[a]t least five days prior to the
final status conference, counsel must serve and file lists of pre-marked exhibits to
be used at trial” (subd. (f)(1)).
       Appellant contends, in substance, that because the timing contemplated by
rule 3.25, subdivisions (f) and (f)(1), was not met, he did not have the opportunity
to see the evidence the Department intended to use until the trial began. However,
nothing in the record shows that in the trial court appellant objected on the ground
that the local rule was violated, much less on the ground that his due process rights

                                            25
were violated.9 Further, appellant cannot make a showing that he was prejudiced
by the Department’s failure to provide the witness and exhibit lists earlier. We
have no record of whether appellant engaged in any discovery procedures to
prepare for trial. Of course, those procedures are the proper avenue to learn the
evidentiary basis of the opponent’s case. Further, from the record presented, it
does not appear that there were any surprises. At trial, the sole Department witness
was Dave Eller. According to the Department’s witness list, he was going to offer
testimony on the decedent’s Medi-Cal benefits, the Department’s multiple requests
for reimbursement, the Department’s review of any applicable exemptions, and the
foundation for documents. Assuming he testified as represented, none of the
testimony could have been unanticipated. Further, the statement of decision shows
that appellant mounted a vigorous defense. In short, there is no basis on which to
find defendant was denied due process in the failure to hold a final status
conference prior to the trial date.


       V.     Absence of a Court Reporter
       Relying on Government Code section 68086, subdivision (d), appellant
contends that he was deprived of valid notice that a court reporter would not be



9
         We note that it is not at all clear that the court violated rule 3.25. Subdivision (g)
of the rule provides: “Nothing in this rule precludes the court, in its discretion and
pursuant to the case differentiation principles of case management (Cal. Rules of Court,
rule 3.710 et seq.), from ordering different trial preparation procedures.” The rule lists
nonexclusive examples, including holding a final status conference more than ten days
before the trial date. (Rule 3.25, subd. (g)(1).) Although the rule does not specifically
list holding a final status conference less than ten days from the trial date, or on the day
trial is scheduled to begin, nothing in the rule precludes it if the circumstances of the case
justify it. Of course, our record is incomplete and we can only speculate as to why the
final status conference was apparently held on the day of trial.

                                              26
provided, and argues that he should have been given notice by mail or by posting
on the courtroom door or in the courtroom. He is mistaken.
      Government Code section 68086, subdivision (d) provides in relevant part:
“The Judicial Council shall adopt rules to ensure all of the following: [¶] (1) That
parties are given adequate and timely notice of the availability of an official court
reporter. [¶] (2) That if an official court reporter is not available, a party may
arrange for the presence of a certified shorthand reporter to serve as an official pro
tempore reporter, the costs therefor recoverable as provided in subdivision (c).”
      The Judicial Council has responded to the mandate of Government Code
section 68096 by enacting rule 2.956 of the California Rules of Court (rule 2.956).
Rule 2.956(b) provides in relevant part: “(1) Local policy to be adopted and
posted[.] [¶] Each trial court must adopt and post in the clerk’s office a local
policy enumerating the departments in which the services of official court reporters
are normally available, and the departments in which the services of official court
reporters are not normally available during regular court hours. If the services of
official court reporters are normally available in a department only for certain
types of matters, those matters must be identified in the policy. [¶] (2)
Publication of policy[.] [¶] The court must publish its policy in a newspaper if one
is published in the county. Instead of publishing the policy, the court may: [¶]
(A) Send each party a copy of the policy at least 10 days before any hearing is
held in a case; or [¶] (B) Adopt the policy as a local rule.”
      In the present case, there is no evidence that the Los Angeles Superior Court
violated rule 2.956(b)(1), by failing to post its policy in the clerk’s office. Thus,
such a failure to post is not a basis on which to find that appellant did not have
adequate notice. Further, in compliance with rule 2.956(b)(2), the Los Angeles
County Superior Court has published its policy by adopting it as a local rule, Los

                                           27
Angeles County Superior Court rule 2.21, which provides: “(a) Unlimited Civil
Cases. Official court reporters are not normally available for reporting trials in
unlimited civil cases.” Also, in subdivision (e), the rule explains the procedure for
obtaining a court reporter if a party wants one.10 Thus, the record fails to support
appellant’s claim that he was denied valid notice that a court reporter would not be
provided.
       Appellant contends that he was at a disadvantage because he was
representing himself. However, a self-represented party is held to the same
procedural rules as a party who is represented by an attorney. “Under the law, a
party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is
to be treated like any other party and is entitled to the same, but no greater
consideration than other litigants and attorneys. [Citation.]’ [Citation.]” (Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
       Finally, we note that even without a court reporter, appellant was not
without a remedy to provide a more complete record on appeal. He had the option
to file an agreed statement (Cal. Rules of Court, rule 8.134) or a settled statement
(id., rule 8.137), but failed to do so.




10
       “(e) Procedure for Court Reporter Services. Parties desiring the services of a
court reporter for a proceeding for which the court does not make a court reporter
available may arrange for the appointment of a court approved official court reporter
from a list maintained by the court, or may, by stipulation, arrange for the appointment of
a privately retained certified shorthand reporter, in accordance with the procedures posted
on the court’s website and available in the clerk’s office. If an arrangement for a court
reporter is made under this subdivision, it is the responsibility of the arranging party or
parties to pay the reporter’s fee for attendance at the proceedings.”
                                              28
                              DISPOSITION
          The judgment is affirmed. The Department shall recover its costs on
appeal.
          NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          WILLHITE, Acting P. J.




          We concur:




          MANELLA, J.




          COLLINS, J.




                                     29
