Filed 1/22/15 Prasad v. Sessions CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

ABHIJIT PRASAD,                                                      H039167
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. CV203380)

         v.

GINA SESSIONS, as Director of
Department of Social Services, etc.,

         Defendant and Respondent.


         Abhijit Prasad appeals from the trial court’s judgment denying his petition for writ
of administrative mandamus against the Santa Clara County Department of Social
Services (the Department), in which he challenged the Department’s determination that
the child abuse allegations made against Prasad were substantiated, rather than
unfounded. The trial court upheld the administrative decision, finding it was supported
by substantial evidence.
         As we will explain, we conclude the trial court applied the wrong standard in
reviewing the Department’s determination, and accordingly we remand this matter to the
trial court to apply the correct standard.
I.       FACTUAL AND PROCEDURAL BACKGROUND
         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



                                              2
to touch his privates but they refused because “[i]t’s disgusting.” He would get mad and
kept saying “touch my butt” repeatedly.1
       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

       1
        According to Chancellor’s report, the older daughter said this phrase to her in
Hindi, with Rattan providing the translation.


                                             3
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.”




                                             4
       Based on this information, Chancellor found the allegation of sexual abuse by
Prasad against the older daughter was substantiated.2 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).3 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



       2
          Pursuant to the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et
seq.) (the CANRA), an investigation of child abuse may result in a report with one of
three possible findings: unfounded, substantiated or inconclusive. An “ ‘[u]nfounded
report’ means a report that is determined by the investigator who conducted the
investigation to be false, to be inherently improbable, to involve an accidental injury, or
not to constitute child abuse or neglect . . . .” (Id., § 11165.12, subd. (a).) A “
‘[s]ubstantiated report’ means a report that is determined by the investigator who
conducted the investigation to constitute child abuse or neglect . . . based upon evidence
that makes it more likely than not that child abuse or neglect . . . occurred.” (Id., subd.
(b).) An “ ‘[i]nconclusive report’ means a report that is determined by the investigator
who conducted the investigation not to be unfounded, but the findings are inconclusive
and there is insufficient evidence to determine whether child abuse or neglect . . . has
occurred.” (Id., subd. (c).) According to the version of the CANRA in effect during the
relevant time period, a county welfare department was required by statute to report all
inconclusive and all substantiated findings of child abuse to the Child Abuse Central
Index (CACI) maintained by California’s Department of Justice (DOJ). (Former Pen.
Code, § 11169.) Effective Jan. 1, 2012, the statute was amended so that only
substantiated findings are required to be reported. (Pen. Code, § 11169, subd. (a),
adopted by Stats. 2011, ch. 468.)
        3
          The CACI consists of an index of all reports of child abuse and severe neglect
submitted to the DOJ pursuant to the CANRA under Penal Code section 11169. (Id., §
11170, subd. (a).) In maintaining the CACI, the DOJ acts as a repository of the reports
(ibid.), and the CANRA contains specific provisions setting forth the limited categories
of persons who have access to the CACI. (Id., § 11170, subds. (b)-(e).)


                                             5
been timely provided to Prasad. The hearing was continued so Prasad could review the
document in detail.
       At the August 10, 2010 hearing, a grievance 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 grievance 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 grievance officer’s

                                             6
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 grievance 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 grievance 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.

                                              7
       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.”
       Prasad timely appealed.
II.    DISCUSSION
       Before addressing the substance of Prasad’s appeal, we dispose of two motions he
filed in this court as the appeal was pending.
       A.     Motion to augment record on appeal
       Prasad submitted a motion to augment the record on appeal to “include all
documents in this case that was [sic] not included in the Clerk’s Transcript.” Prasad
attempted to file these same documents, set forth in four bound volumes with a total of
788 pages, in connection with his writ of mandate in the superior court, but they were
rejected by the clerk. He claims that this court needs these documents to address his
argument that the superior court could not have conducted an independent review of the
grievance officer’s decision in the absence of the documents in question. He further
claims that these documents must be added to the record because the “Administrative
Record filed by the County of Santa Clara is not included in the Clerk’s Transcript on
Appeal.”
       Prasad is correct that the administrative record is not included in the clerk’s
transcript. However, that does not mean that the administrative record is not part of the
record on appeal. It is. A copy of the administrative record was lodged in the superior
court on September 26, 2011, and as required by California Rules of Court, rule 8.123(c),
the record was transmitted to this court. We reviewed all of the documents in that record
in connection with the instant appeal, and we presume they were also reviewed below.
       We compared the documents submitted by Prasad in his motion to augment to
those contained in the administrative record and determined that 13 of the 60 documents

                                              8
he submitted do not appear in the record. Some of these documents are not in the
administrative record because they postdate Prasad’s August 10, 2010 grievance review
hearing, such as exhibits K1 and Z1, which consist of October 2010 letters between
Prasad’s counsel and the Department regarding the decision of the grievance hearing
officer. Other documents which predate the grievance review hearing are not obviously
relevant to that hearing. Prasad does not explain in his motion to augment why they are
important, let alone that he sought to introduce them at that hearing only to have them
rejected by the hearing officer.
       A document can be augmented to the appellate record only if the item was filed or
lodged in the superior court in the case on appeal. (Cal. Rules of Court, rule 8.155(a)(1).)
“Augmentation does not function to supplement the record with materials not before the
trial court.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn.
3.)
       Accordingly, we deny the motion to augment the record.
       B.     Motion for judicial notice
       Prasad has also filed a motion asking that this court take judicial notice of a July
31, 2013 order denying a motion for summary judgment in a case before the United
States District Court for the Central District of California.4 According to Prasad, the
federal district court’s order is “directly on point” and this court must take judicial notice
of it in order to avoid a “conflict” between federal and state courts on the subject of an
individual’s due process rights to challenge his or her inclusion in CACI or the child
welfare system/case management system.
       “Reviewing courts generally do not take judicial notice of evidence not presented
to the trial court.” (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p.

       4
       The case is entitled Castillo v. County of Los Angeles (C.D.Cal. 2013) 959
F.Supp.2d 1255.


                                              9
444, fn. 3.) “While we may take judicial notice of the existence of judicial opinions,
court documents, and verdicts reached, we cannot take judicial notice of the truth of
hearsay statements in other decisions or court files [citation], or of the truth of factual
findings made in another action.” (Johnson & Johnson v. Superior Court (2011) 192
Cal.App.4th 757, 768.) Judicial notice should be taken only of relevant matters.
(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1; Aquila, Inc. v. Superior Court
(2007) 148 Cal.App.4th 556, 569.)
       We acknowledge Prasad could not have proffered a federal district court order
from July 2013 to the trial court in connection with the November 2012 hearing on his
petition for writ of administrative mandate. Even if the federal order had been issued
sometime before Prasad’s hearing, however, the trial court would have declined to take
judicial notice of it. Prasad’s request is not limited to the existence of the document, but
improperly seeks judicial notice of the truth of the factual findings contained therein.
The trial court could not have taken judicial notice of those findings, nor can we.
(Johnson & Johnson v. Superior Court, supra, 192 Cal.App.4th at p. 768.) Accordingly,
we deny the request.
       C.     The trial court was required to exercise its independent judgment
       Prasad argues the trial court should have exercised its independent judgment in
reviewing the Department’s ruling rather than applying the substantial evidence standard
of review. At oral argument, the Department conceded the wrong standard of review was
applied below and that the case should be remanded.5 We agree.



       5
         At argument, the Department prefaced this concession by reiterating the position
it took in its responding brief; i.e., that the trial court would reach the same conclusion
regardless of what standard of review applied. The Department did not renew the request
made in its brief to have this court conduct an independent review of the administrative
proceedings and we deem that argument to have been abandoned.


                                              10
       “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.)
       “The courts must decide on a case-by-case basis whether an administrative
decision or class of decisions substantially affects fundamental vested rights and thus
requires independent judgment review.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 144.)
The court in Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 928
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.” (See also
Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 84
[“Because recordation in CACI as a probable child abuser impinges upon fundamental
rights, the superior court must exercise its independent judgment in determining whether
the evidence before the Department established that the report is ‘substantiated.’ ”)]
       Accordingly, the trial court was obliged to apply an independent judgment
standard of review to Prasad’s challenge to the Department’s findings regarding the
claims of sexual abuse. Because the trial court improperly applied a substantial evidence

                                             11
standard of review, we will remand this matter for the trial court to apply the correct
standard of review.
III.   DISPOSITION
       The judgment is reversed, and this action is remanded for a new hearing on
Prasad’s petition for writ of administrative mandate in which the trial court shall exercise
its independent judgment on the evidence. Prasad is entitled to his costs on appeal.




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                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
