Filed 3/21/16 Curiel v. Dept. of Social Services CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



YVONNE CURIEL,

                   Plaintiff and Appellant,                                                  C074523

         v.                                                                         (Super. Ct. No.
                                                                             34201180000810CUWMGDS)
DEPARTMENT OF SOCIAL SERVICES,

                   Defendant and Respondent.




         Defendant Department of Social Services (the department) revoked the child day
care license of plaintiff Yvonne Curiel1 because it found, after an administrative hearing,
that a child in her care was spanked and Curiel made false statements about it to an
investigator. Curiel has consistently claimed she never struck the child. The trial court
denied Curiel’s petition for a writ of administrative mandamus after it concluded the
findings and conclusions of the administrative law judge were supported by the weight of




1 The administrative record spells Curiel’s first name “Ivonne,” consistent with her
testimony at the administrative hearing. We adopt the spelling used by the trial court.

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the evidence. The trial court also found the department did not abuse its discretion by
imposing the penalty of license revocation.
        Curiel now contends (1) the trial court erred in considering a new theory -- that
Curiel had fraudulently altered attendance logs -- which was not asserted at the
administrative hearing; (2) the trial court erred in applying a “technical” rule of
admissibility set forth in the Evidence Code, rather than a “broad” rule of admissibility
set forth in the Administrative Procedure Act, to conclude that the administrative law
judge did not err in excluding evidence of investigator bias; and (3) the trial court
concluded Curiel’s punishment was not excessive by incorrectly considering the new
theory -- that Curiel had fraudulently altered attendance logs -- which was not asserted at
the administrative hearing.
       Finding no error or abuse of discretion, we will affirm the judgment.
                                      BACKGROUND
       The department licensed Curiel in 1997 to operate a family child care home in San
Francisco. Health and Safety Code section 1596.8852 provides that the department may
revoke a child day care license for the following reasons, among others:
       “(a) Violation by the licensee, registrant, or holder of a special permit of this act
or of the rules and regulations promulgated under this act.
       “(b) Aiding, abetting, or permitting the violating of this act or of the rules and
regulations promulgated under this act.
       “(c) Conduct which is inimical to the health, morals, welfare, or safety of either
an individual in or receiving services from the facility or the people of this state.”
(§ 1596.885, subds. (a), (b), (c).)




2 Undesignated statutory references are to the Health and Safety Code.


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       In August 2010 the department began the process of revoking Curiel’s license
by issuing a formal accusation. The department alleged that on or about September 21,
2009, Curiel violated section 1596.885, subdivisions (a) and (b), when a child in her care
“incurred an injury, which appears as a handprint, while at the facility.” The accusation
cited implementing regulations requiring constant supervision of children and providing
each child in a licensed facility a right to be free from corporal punishment. (Cal. Code
Regs., tit. 22, §§ 102417 &102423, subd. (a)(4).) The accusation further alleged that
Curiel violated section 1596.885, subdivision (c) by making one or more false statements
about the injury, including that the child’s mother had asked Curiel for a $600 loan, that
Curiel had given the parents two weeks’ notice to terminate the child care arrangement,
and that the child’s father picked up the child on September 21, 2009.
       An administrative law judge (ALJ) conducted an evidentiary hearing in January
2011 in connection with the department’s accusation. The evidentiary hearing focused
on an injury sustained by a two-year-old boy who had been in Curiel’s care for seven
weeks. It was undisputed that the child was spanked between the time the mother
dropped him off at day care and the time she found a handprint mark on his buttocks that
evening. A medical expert testified that it was impossible to tell what time the child had
been hit or whether the handprint belonged to a man or a woman. Curiel denied ever
spanking children and understood it was never permitted. Curiel contended the mother
had been in a shelter because of abuse by the father and it was the father who picked up
the child that day, so the father likely hit the child. The father denied ever striking any of
his children.
       The mother said she picked up the child on the day in question and took him by
bus to a cousin’s house, where she later changed his diaper and saw the red mark. The
father said he had only picked up the child from Curiel’s care once and that was several
weeks before the day in question. He said he picked up the couple’s other children on
September 21 and took them to the cousin’s house, arriving there before his wife. The

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cousin corroborated that the father arrived with the older children 30 or 40 minutes before
the mother arrived with the child who had been in Curiel’s care.
       The mother filed a complaint against Curiel and the department sent an
investigator. The investigator testified that when she arrived at Curiel’s home to begin
the investigation, Curiel promptly said she knew what the investigation was about and
handed over a handwritten letter. The letter was allegedly given to the victim’s mother
on September 21 to document that Curiel gave the mother two weeks’ notice to find other
care arrangements because the child cried a lot and because the mother had asked to
borrow $600 that day, making Curiel uncomfortable. The letter also stated that the father
had picked up the child that day and that Curiel made calls to the mother to find out why
she did not return with the child but the calls went unanswered.
       Although Curiel consistently claimed the father had picked up the child, the only
corroborating evidence was a declaration from an unavailable witness saying he thought
the mother’s first verbal report to the referring agency identified the father as the one who
picked up the child. The witness also acknowledged inconsistencies in his recollection
and the evidence maintained by his employer. The ALJ gave his testimony no weight,
and the trial court found no abuse of discretion regarding that evidentiary determination.
       The investigator also interviewed the parents, who both said the mother picked up
the child that day and had never asked to borrow money from Curiel. The parents denied
that Curiel told them their child cried too much or would be terminated from child care
and the mother also denied ever receiving mail or telephone calls from Curiel. The
investigator did not call Curiel a liar but believed the evidence against Curiel was “more
compelling” than the evidence provided by Curiel.
       After hearing testimony from Curiel, the parents, relatives of the parents, the
investigator and the doctor, the ALJ found that Curiel made uncorroborated and false
statements about who picked up the child, about whether she gave a two-week notice to



                                             4
the child’s mother, and about whether the mother requested a $600 loan. The ALJ found
the child’s injury happened while the child was under Curiel’s care and supervision.
       Observing that Curiel had been a licensed child care provider for 14 years without
incident and acknowledging evidence that she was “respected by the parents of children
in her care and other providers in her community,” the ALJ lamented that she showed “no
signs of remorse, blames the father for the injury, and portrays the mother as a liar” and
provided no evidence engendering confidence that similar behavior would not occur
again. The ALJ concluded that the protection of the public compelled revocation of
Curiel’s license.
       The department adopted the ALJ’s proposed decision and it became final. After
Curiel filed a petition for writ of administrative mandamus in the trial court, the trial
court reviewed the administrative record under the independent judgment test, making its
own findings and determinations. It found substantial evidence to support the
department’s decision and it denied Curiel’s writ petition.
       Additional facts are included in the discussion.
                                       DISCUSSION
                                               I
       Curiel contends the trial court erred in considering a new theory -- that Curiel had
fraudulently altered attendance logs -- which was not asserted at the administrative
hearing.
       In its opposition to Curiel’s petition for writ of mandate, the department offered
evidence from the administrative record that Curiel was not credible, mentioning the
mother’s denial that she signed an attendance record and suggesting that Curiel must
have forged the signature. Curiel properly objected to the forgery reference in her reply,
offering a quote from counsel for the department at the administrative hearing
affirmatively stating that confusion about the attendance record was the fault of both
parties and was not determinative of credibility. The trial court’s tentative ruling

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concluded the mother picked up the child that day. The trial court did not make a finding
that anyone had forged attendance logs, but in a footnote it noted that the parties had
discussed a “sign-out sheet.” The trial court said that discussion was “not particularly
relevant” because the mother and Curiel testified the mother signed the sheets a week or
two in advance and Curiel testified she later entered the departure times.
       At oral argument, Curiel urged the trial court to discard its tentative ruling against
her and require a new hearing because, among other things, the attendance record
evidence was raised for the first time in the trial court. The department countered that
Curiel’s objection was raised for the first time at oral argument. The trial court affirmed
its tentative ruling without mentioning the attendance sheet evidence.
       Curiel now suggests the trial court was “obviously influenced” in deciding who
spanked the child by the department’s argument that Curiel altered the child’s attendance
logs, but the record does not support her argument. She cites no supporting evidence, and
in fact the trial court concluded the child was spanked while in Curiel’s care because the
mark was first discovered in the evening after day care and the only evidence the injury
did not happen at Curiel’s home was her own testimony that the father picked up the
child that afternoon, testimony that was inconsistent with the testimony of several other
witnesses. The trial court’s only reference to the sign-out sheet was in the footnote in
which the trial court explained why the discussion regarding the sign-out sheet was not
particularly relevant. The trial court did not find that Curiel altered attendance logs.
       Curiel’s argument implies there was a lack of substantial evidence to support the
trial court’s conclusion that her testimony was not credible. Weighing the credibility of
witnesses and making fact findings is part of a trial court’s independent review of
licensing revocation proceedings. (Governing Board v. Haar (1994) 28 Cal.App.4th 369,
377.) The trial court applied the correct test and cited reasons for finding Curiel not
credible. An appellate court reviewing a license revocation must sustain the trial court’s
findings if they are supported by substantial evidence and must resolve conflicts in favor

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of the prevailing party. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52.)
When the evidence is susceptible to more than one inference, we are prohibited from
substituting our own deductions for those of the trial court. (Ibid.) An appellate court
may reverse the denial of administrative mandamus if (a) no reasonable trier of fact could
have considered the evidence reasonable, credible and of solid value; (b) the court’s
decision was based on an erroneous conclusion of law; or (c) the trial court failed to make
a necessary factual determination. (Id. at pp. 52-53.) Curiel does not provide support for
any of these grounds.
       Even if we were to assume that the father had an opportunity to cause the child’s
injury, as Curiel insists, there was substantial evidence that Curiel lied about what
happened that day. The trial court concluded that Curiel’s account was “difficult to
believe” for five reasons: (1) the mother allegedly had no response when told she would
need to find new daycare, but then she asked Curiel, who she had known for only seven
weeks, for $600 for a dance class; (2) the referring agency told Curiel the next day that
the child would not be returning to her care because the mother was unhappy but Curiel
never told the agency she had given the mother notice; (3) Curiel testified that she gave
the mother notice three days before the loan request yet her letter said the reason for the
notice was the loan request; (4) Curiel testified the letter was written the evening of the
incident yet it mentions a subsequent call to the mother asking if she would be returning
with the child; and (5) Curiel did not call her daughter to testify even though she said the
daughter could corroborate her story.
       A credibility determination was necessary in this case. Either Curiel told the truth
and the parents lied or the parents told the truth and Curiel lied. As we have said, the trial
court cited substantial evidence for disbelieving Curiel, all documented by references to
the record, and none mentioning the attendance logs. Curiel refers in her brief to
evidence in the record that could have supported a contrary conclusion, but it is not our



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role to reweigh the evidence and draw new conclusions. There was substantial evidence
to support the trial court’s conclusion without regard to attendance logs.
                                              II
       Curiel next contends the trial court erred in applying a “technical” rule of
admissibility set forth in the Evidence Code, rather than a “broad” rule of admissibility
set forth in the Administrative Procedure Act, to conclude that the administrative law
judge did not err in excluding evidence of investigator bias. She claims the error
precluded her from showing that the department’s investigator was biased and resulted in
a denial of due process.
       Curiel’s counsel cross-examined the investigator at length about many details of
the investigation, and in particular as to why the investigator believed the mother despite
specifically-identified contradictions in the evidence and why the investigator had not
thoroughly explored specified evidence favorable to Curiel. The following testimony and
colloquy concluded the cross-examination:
       “Q: Now, one other question: As far as departmental policy, is it departmental
policy to tell prospective parents not to send a child to a particular day care?
       “A: To other parents?
       “Q: If I were calling the Department --
       “A: Uh-huh.
       “Q: -- and actually [the agency that referred the child to Curiel in this case], to be
precise, and said, I’m new to the area and I’d like to find a day care --
       “A: Yes.
       “Q: -- Does the Department make any recommendations?
       “A: No.
       “Q: Does the Department ever tell prospective parents not to send them to a
particular day care because they beat children at that day care?
       “[Department counsel]: Objection, relevance.

                                              8
       “[ALJ]: What is the relevance of this?
       “[Counsel for Curiel]: It’s part of the bias argument about the Department and its
investigation. They’re still telling parents that children are being beat at the day care.
       “[Witness interjects]: If a complaint --
       “[ALJ]: Wait, wait, wait.
       [¶] . . . [¶]
       “[ALJ]: What’s that have to do with the relevance of this investigation? That’s
sort of --
       “[Counsel for Curiel]: Because I think [the] investigation was biased and the bias
continues.
       “[ALJ]: Well, I’m not sure it shows her bias.
       “[Counsel for Curiel]: No, no. But . . . I will offer evidence as to what parents are
being told today. And I think it -- and I think we all know it’s a violation.
       “[ALJ]: Well, I don’t see the relevance of that, so I’ll sustain the objection.
       “[Counsel for Curiel]: I have nothing further. Thank you.”
       On redirect, counsel for the department asked the investigator whether she had
ever told any parents not to send their children to Curiel because “they beat children” and
the investigator responded unequivocally, “No.” Curiel offered no other evidence of bias
by the investigator or the department.
       Curiel’s writ petition asserted she had been denied a fair hearing because she was
not allowed to establish that the investigator was “hostile and biased against her,” but the
trial court disagreed, pointing out that Curiel not only offered no evidence that the
investigator told other parents not to send children to Curiel, she offered no evidence the
investigator was biased at all. The trial court observed that the ALJ had broad discretion
to limit cross-examination on collateral matters such as the actions of unidentified
representatives of the department, especially since Curiel made no offer of proof about
what information she expected to elicit in response to her question.

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       The trial court cited authority about offers of proof when cross-examination
exceeds the scope of the direct examination in a civil or criminal trial, including People v.
Lavergne (1971) 4 Cal.3d 735, 742, Evidence Code section 354, and People v. Foss
(2007) 155 Cal.App.4th 113, 127. Curiel now contends the evidentiary ruling was wrong
because it was not based on the evidence rules set forth in the Administrative Procedure
Act. But the trial court’s ruling was correct under both civil and administrative standards.
       At an administrative hearing, each party has the right “to cross-examine opposing
witnesses on any matter relevant to the issues even though the matter was not covered in
the direct examination” and the right “to impeach any witness.” (Gov. Code § 11513,
subd. (b).) Relevant evidence may be admitted “if it is the sort of evidence on which
responsible persons are accustomed to rely in the conduct of serious affairs, regardless of
the existence of any common law or statutory rule which might make improper the
admission of the evidence over objection in civil actions.” (Gov. Code § 11513,
subd. (c).) These provisions permit relevant evidence to be admitted more readily in an
administrative hearing than at a civil trial, but they do not sanction the admission of
evidence that is not relevant. Moreover, an officer presiding at an administrative hearing
has discretion to exclude even relevant evidence “if its probative value is substantially
outweighed by the probability that its admission will necessitate undue consumption of
time.” (Gov. Code § 11513, subd. (f).)
       On appeal, we review a trial court’s ruling on the admissibility of evidence in an
administrative hearing for abuse of discretion. (Miyamoto v. Department of Motor
Vehicles (2009) 176 Cal.App.4th 1210, 1217.) The trial court did not abuse its discretion
when it agreed with the ALJ that questions about whether “the department” steered
parents away from Curiel’s care at the time of the hearing had no apparent relevance to
whether the investigator was biased while interviewing witnesses many months earlier.
(See City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 782 [witnesses in
administrative proceeding have no duty to respond to inquiries that cannot serve to prove

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or disprove a point in contention].) Curiel had the opportunity to cross-examine the
witness and she was not denied a fair trial because the questioning on bias was limited.
                                               III
         Curiel further contends the trial court concluded her punishment was not excessive
by incorrectly considering the new theory -- that Curiel had fraudulently altered
attendance logs -- which was not asserted at the administrative hearing. As we explained
in Part I of this opinion, however, the trial court found the sign-out sheet discussion
inconsequential. Curiel’s suggestion that the trial court improperly relied on it lacks
merit.
         “[T]he propriety of a penalty imposed by an administrative agency is a matter
vested in the discretion of the agency and its decision may not be disturbed unless there
has been a manifest abuse of discretion.” (Cadilla v. Board of Medical Examiners (1972)
26 Cal.App.3d 961, 966.) A reviewing court determines only whether the penalty was
arbitrary, capricious or patently abusive. (Id. at pp. 966-967.) Reviewing courts are not
free to substitute their discretion for that of an administrative agency concerning the
degree of punishment. (Cal. Real Estate Loans, Inc. v. Wallace (1993) 18 Cal.App.4th
1575, 1580.)
         The only authority Curiel cites for a lesser punishment is the principle that license
revocation is drastic and the principle that judicial discretion in the administration of
penalties must be exercised “in conformity with law.” Curiel does not deny that
section 1596.885, subdivision (c) authorizes the department to revoke a license for
conduct “inimical to the health, morals, welfare, or safety of either an individual in or
receiving services from the facility or the people of this state.” (§ 1596.885, subd. (c).)
         Curiel suggested that the spanking was a minor offense, but the trial court
disagreed, given that the spanking was administered to a two-year-old child in a manner
that left a mark that was visible hours later. In any event, the trial court observed that the
license was revoked both because of the spanking and because Curiel lied about her

                                               11
interaction with the child’s parents. The trial court quoted with approval the ALJ’s
conclusion that the protection of the public compelled license revocation because Curiel
was not remorseful and had provided “no evidence which would engender any
confidence that this type of behavior would not occur again.” The trial court found that
the record supported these conclusions.
       The evidence against Curiel was substantial and the penalty imposed was within
the range of discretion accorded to the department for the protection of the public.
We find no abuse of discretion.
                                      DISPOSITION
       The judgment is affirmed.



                                                      /S/
                                                 Mauro, Acting P. J.



We concur:



     /S/
Murray, J.



     /S/
Hoch, J.




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