Judge Curtis A. Kin, Case 22STCP01523 2023-05-18 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Petitioner Charles Henry Johnson (“Petitioner”), on behalf of his daughter, Kiana Johnson (“Kiana”) petitions for a writ of administrative mandate directing Respondent Kimberley A. Johnson, Director of California Department of Social Services (“Respondent”) to set aside her administrative decision denying protective supervision to Kiana.[1]

“In 1973 the Legislature enacted the In-Home Supportive Services (IHSS) program to enable aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 867.) “The Department and its director are responsible for administering the IHSS program in compliance with state and federal laws. [Citations.] The Department promulgates regulations to implement the statutes [Citations] while the county welfare departments administer the program under the state's general supervision. The county departments process applications for IHSS assistance [Citations], determine the individual's needs and authorize services. [Citation.].” (Id. at 868.)

The IHSS program is governed by Welfare and Institutions Code sections 12300, et seq., and the Department’s Manual of Policies and Procedures (MPP), sections 30-700, et seq. The Department issues additional guidance on IHSS benefits in All-County Letters (“ACL”) to county departments.

Neither party has requested judicial notice of the MPP or relevant All-County Letters. While Respondent refers to a request for judicial notice filed by Petitioner, the court has not received any request for judicial notice. (Oppo. 7:20-23.) Because both parties rely on the MPP and All-County Letters, the court judicially notices these regulations on its own motion. (See https://www.cdss.ca.gov/inforesources/letters-regulations/legislation-and-regulations/adult-services-regulations.) The pertinent provisions of the MPP and All-County Letters are also summarized in the administrative decision. (See Administrative Record (“AR”) 15-23.)

Protective supervision is an IHSS supportive service. (Welf. & Inst. Code § 12300(b).) “Protective supervision” consists of observing recipient behavior and intervening as appropriate in order to safeguard the recipient against injury, hazard, or accident. (MPP § 30-757.17.) It is a benefit available for observing the behavior of “non-self-directing, confused, mentally impaired, or mentally ill persons only.” (MPP § 30-757.171.)

Protective supervision is only authorized if “[a]t the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.” (MPP § 30-757.173(a).) Furthermore, it is limited to protective supervision needed because of the functional limitations of the recipient and cannot be authorized for routine childcare or supervision. (MPP § 30-763.456(d).)

MPP section 30-757.172 specifies five circumstances in which protective supervision is not authorized:

(b) When the need is caused by a medical condition and the form of the supervision required is medical.

(e) To guard against deliberate self-destructive behavior, such as suicide, or when an individual knowingly intends to harm himself/herself.

“The Department's regulations, and case law, define the purpose and form of protective supervision, which, in essence, determines the eligible recipients of this benefit…. ‘ ‘Protective supervision’ services authorized by section 12300 are ‘for monitoring the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons....' (MPP § 30–457.71.) … To be eligible for such services, an individual must show ‘that twenty-four hour need exists ... and that the recipient can live at home safely if protective supervision is provided.’ (MPP § 30–457.721.) [¶] Some recipients are old, suffering degenerative diseases. Others are young but retarded, epileptic, blind, brain damaged or schizophrenic. The recipients cannot protect themselves from injury. Some are self-destructive. For example, one autistic, blind and brain-damaged child lapses ‘into seizures and temper tantrums ... venting his frustrations by banging his head against a wall.’ Others cannot control normal but potentially hazardous activities such as cooking or smoking a cigarette.’” (Calderon v. Anderson (1996) 45 Cal.App.4th 607, 614-615, quoting Miller v. Woods, supra, 148 Cal.App.3d at 867.)

“‘Protective supervision’ appears to be similar to care given small children, that is, anticipating everyday hazards and intervening to avert harm.” (Calderon, supra, 45 Cal.App.4th at 615.)

“[E]ligibility for IHSS benefits must generally be reassessed on an annual basis.” (Norasingh v. Lightbourne (2014) 229 Cal.App.4^th 740, 754.)

At the time of the administrative hearing, Kiana was a 30-year-old female diagnosed with autism spectrum disorder and a mental and emotional disorder. (AR 4.) She resides with her father, Charles Johnson, and her mother, Regina Johnson. (AR 92.) Kiana has received IHSS services since February 2009. (AR 4.) Kiana’s father, Petitioner Charles Johnson, is her IHSS provider. (AR 92.)

Kiana was authorized for protective supervision until October 1, 2017. (AR 5.) After a social worker conducted an annual reassessment of Kiana on September 1, 2017, County determined that Kiana “is not eligible to receive Protective Supervision as there are no behaviors that require constant interventions to prevent injuries.” (AR 97.) County’s denial of protective supervision was affirmed in an administrative decision adopted by Respondent on February 12, 2018. (AR 5.) That decision is final and not at issue in this writ petition.

On January 29, 2021, the County conducted its annual reassessment of Kiana’s needs under the IHSS program. (AR 84.) As of February 1, 2021, Kiana’s IHSS hours were increased to 29:17 hours per month and include time for meal preparation, laundry, food shopping, and other domestic services. (AR 4, 84.) County denied protective supervision, finding that Kiana is self-directing, not likely to engage in potentially dangerous activities, and not in need of 24-hour-a-day supervision. (AR 84, 89.)

Kiana, through Petitioner, appealed the County’s denial of protective supervision.

On April 28, 2021, an administrative hearing was held before an administrative law judge (“ALJ”) concerning the County’s denial of protective supervision. At the administrative hearing, Kiana challenged the denial of protective supervision and also the denial of IHSS time for “medical accompaniment.” (AR 4.) The denial of medical accompaniment is not challenged in the writ petition but is discussed in Petitioner’s opening brief. (See Pet. ¶ 40 and Prayer ¶ 1; but see Opening Brief (“OB”) 8.)

At the hearing, Kiana’s Authorized Representative, Brian Allen, and her parents, Charles Johnson and Regina Johnson, appeared on behalf of Kiana. (AR 2, 106.) County Representative Cheryl Taylor and two social workers, Joyce Thurman and Irma Munoz, appeared for the County. (Ibid.) The ALJ also received documentary evidence from Kiana and from County. (AR 30-76, 77-104.) Petitioner’s exhibits included a note, dated November 13, 2020, from a nurse practitioner who has provided psychiatric care to Kiana. (AR 42; at Claimant’s Exhibit B, Exh. A2.) Other relevant documents include Petitioner’s written descriptions of an “average day” of Kiana. (See AR 49-50.)[2]

Following the hearing, the ALJ issued a proposed decision recommending to uphold the County’s denial of protective supervision. (AR 2-28.) The ALJ found that Kiana has a qualifying mental impairment. (AR 23.) However, the ALJ found that Kiana is not qualified for protective supervision because she is self-directing and not likely to engage in dangerous behavior due to her impairment. (AR 23-28.) Having determined that Kiana is self-directing and not likely to engage in dangerous behavior due to her impairment, the ALJ stated it was unnecessary to determine whether Kiana needs supervision 24 hours per day. (AR 27.) Nonetheless, in the conclusion of the decision, the ALJ determined that Kiana “does not have a need for 24-hour a day supervision.” (AR 28.)

Respondent adopted the proposed decision on or about June 11, 2021 (hereafter “Decision” or “June 11, 2021, Decision”). (AR 2.)

On April 27, 2022, Petitioner filed a verified petition for writ of administrative mandate challenging the June 11, 2021, Decision. Respondent has answered the petition.

A trial setting conference was held on July 21, 2022, and was attended by counsel for Petitioner and Respondent. Counsel for Respondent advised the court that the administrative record had been prepared and would be sent to counsel for Petitioner in the next couple of weeks. (Minute Order dated 7/21/22.) The court set the petition for hearing on May 18, 2023, and ordered a briefing schedule. The Court ordered Petitioner to file and serve his opening brief 60 days before the hearing; Respondent to file and serve her opposition 30 days before the hearing; and Petitioner to file and serve his reply 15 days before the hearing.

On March 17, 2023, Petitioner filed his opening brief in support of the petition. The court has received Respondent’s opposition, Petitioner’s reply, and the administrative record.

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

“In reviewing decisions denying applications for public assistance …, the superior court exercises its independent judgment” on the record. (Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 752.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal.App.4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)

A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner seeks a writ directing Respondent to set aside the Decision and also “order the County to reimburse Petitioner for Protective Supervision … retroactively to January 5, 2018.” (Pet. Prayer ¶ 1.) The June 11, 2021, Decision falls within the scope of the court’s review pursuant to CCP section 1094.5. However, to the extent Petitioner challenges any prior administrative decision or seeks relief unrelated to the June 11, 2021, Decision, she has not shown a basis to do so.

The ALJ’s Summary of Prior Decisions Did Not Violate the Administrative Hearsay Rule

Petitioner argues that the ALJ erred by summarizing prior administrative decisions and relying on hearsay evidence from those decisions. (OB 4.) This argument is not persuasive.

In an administrative proceeding, “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” (Gov. Code § 11513(d); see Lake v. Reed (1997) 16 Cal.4th 448, 458.) “Although uncorroborated hearsay evidence cannot, by itself, support an administrative finding, hearsay evidence together with other reliable evidence may support a finding.” (Gill v. Mercy Hospital (1988) 199 Cal.App.3d 889, 910.)

Here, in a section titled “Documentary Evidence” of the Decision, the ALJ summarized prior administrative decisions involving Kiana’s IHSS benefits and other relevant documents, including SOC 821 Protective Supervision forms, the annual reassessment dated September 1, 2017, and a description of Kiana’s day by Petitioner. (AR 4-11.) The ALJ also summarized the testimony presented at the hearing. (AR 11-14, 23-27.) For the administrative findings at issue, the ALJ relied heavily on Petitioner’s written description of Kiana’s day, testimony of Petitioner and Regina Johnson, and other non-hearsay evidence. (Ibid.) Petitioner does not show, with record citation, that the ALJ relied on the prior administrative decisions to make any finding of fact. Further, even if the ALJ relied on the prior decisions in part, that would not violate the administrative hearsay rule, because other non-hearsay evidence supports the findings, as discussed below.

Petitioner argues that Kiana has a vested property right in protective supervision and that, as a matter of law, Kiana “will need Protective Supervision for the remainder of her life.” Relatedly, Petitioner suggests that a determination that an IHSS recipient is entitled to protective supervision cannot be changed or reassessed. (OB 4-5.)

Petitioner’s arguments are refuted by the IHSS regulations and published appellate law. “Once services have been authorized, the authorization shall continue until there is a change in eligibility or assessed level of need.” (MPP § 30-759.5 [bold italics added].) “[P]rotective supervision is available if ‘[a]t the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.’” (Norasingh, 229 Cal.App.4th at 754 [italics in original], citing MPP § 30-757.173(a).) “[E]ligibility for IHSS benefits must generally be reassessed on an annual basis.” (Ibid., citing MPP §§ 30-761.13, 30-761.212.)

While Kiana has a fundamental vested right to apply for state welfare benefits (see Norasingh, 229 Cal.App.4th at 752-753), that only entitles her to independent judgment review of the Decision by the trial court pursuant to CCP section 1094.5. It does not grant her a property right that cannot be removed or reduced pursuant to the governing regulations. (See also Dowling v. Davis (9th Cir. 1994) 19 F.3d 445, 448 [holding that IHSS benefits are not a vested property right under federal or state law; “any protected interest under state law is dependent upon the California legislature's enactment of a budget appropriating public monies for the IHSS program”].)

In support his position that protective supervision cannot be removed, Petitioner relies on MPP section 30-756.361, which states in full: “In 95 percent of any impaired population, people tend to lose functioning in the inverse order of normal infant development. Therefore, it would be unlikely for a recipient to score higher ranks in the functions listed at the bottom of the list than those at the top. This listing should assist in the assessment process.” Section 30-756.361 refers to a list of functions, starting with (a) Housework and ending with (n) Judgment, for which County staff “shall determine the recipient's level of ability and dependence upon verbal or physical assistance.” (See MPP § 30-756.1 and .2.) This regulation does not state that protective supervision is a vested property right that can never be removed or reduced, or that a recipient will be entitled to protective supervision for the rest of her life. Further, section 30-756.361 must be interpreted in context of the entire regulatory scheme, which shows clear intent for the eligibility of IHSS recipients for protective supervision to be regularly reassessed. (See e.g. MPP §§ 30-759.5, 30-761.13, 30-761.212.)

The Weight of the Evidence Supports the Findings that Petitioner is Ineligible for Protective Supervision

· Petitioner Does Not Meet His Burden of Proof Under CCP Section 1094.5; and Improperly Makes New Reply Arguments

The ALJ concluded that Kiana is not qualified for protective supervision because she is self-directed and not likely to engage in dangerous behavior due to her mental impairment. (AR 23-28.) The ALJ made detailed factual findings in support of these conclusions. (Ibid.)

In the opening brief, Petitioner does not challenge any specific factual finding or conclusion made by the ALJ and adopted by Respondent. Nor does Petitioner summarize all evidence upon which the findings were based or explain why such evidence does not support the findings. Under CCP section 1094.5, “the challenger must identify (with citations to the record) the factual findings made by the board that he or she is challenging …. And in doing so, the challenger cannot simply ignore the evidence in the record that was relied upon by the board …. Rather, the challenger must explain why that evidence is insufficient to support that finding.” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.) Petitioner does not meet this burden. Accordingly, for this reason alone, the petition is denied.

For the first time in reply, Petitioner challenges certain factual findings made by the ALJ, specifically, that Kiana is self-directing and is not likely to engage in dangerous behavior. (Reply 2-5.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioner does not show good cause to raise these new arguments in reply, which deprived Respondent of an opportunity to present written opposition. This action has been pending since April 2022 and a trial date and briefing schedule were set in July 2022. In any event, even if the court were to consider the reply arguments, the court finds no prejudicial abuse of discretion in the administrative findings, as discussed below. Because the court’s tentative ruling is to deny the petition, Respondent is not prejudiced if the court considers the new reply arguments. Respondent may also address the new reply arguments at the hearing.

· The Weight of the Evidence Supports the Findings That Kiana Is Self-Directing

“[P]rotective supervision is available for those IHSS beneficiaries who are non-self-directing, in that they are unaware of their physical or mental condition and, therefore, cannot protect themselves from injury….” (Calderon, supra, 45 Cal.App.4th at 616; accord Marshall v. McMahon (1993) 17 Cal.App.4th 1481, 1486-87.)

After assessing Kiana’s memory, orientation, and judgment, the ALJ determined that Kiana is self-directing. The ALJ found that Kiana’s self-direction “is evident in her ability to articulate her goals of attending school, obtaining a degree and a home of her own, and in her efforts to attend Jr. college level classes.” (AR 26.) Additionally, the ALJ noted that Kiana “is very artistic and produces artwork which is displayed in her home”; “[s]he has friends and maintains relationship with the[m] and she enjoys being on Facebook”; and she is “able to recognize fire as dangerous and will not attempt cooking without her father present.” (Ibid. see also AR 24-26.)

Petitioner argues that Kiana is nonself-directing because he, Kiana’s father, provides 24-hour supervision and intervenes in situations in which Kiana may harm herself. Petitioner also contends that Kiana’s artwork “helps her deal with frustration” and that Kiana uses her phone only for emergency purposes. (Reply 3, citing 144-145, 148-153, 157, 162-163.)

Petitioner does not show any prejudicial abuse of discretion in the ALJ’s findings. (CCP § 1094.5(b).) Even with supervision from Petitioner, Kiana’s ability to attend college courses; meet up with friends at a coffee shop and maintain relationships; recognize the danger in fire; produce artwork to help with her anxiety; and use a phone and computer are all strong evidence that she has awareness of her mental and physical condition and is self-directing. (See AR 24-27; see e.g. AR 49-50 [description of Kiana’s activities, including use of computer]; AR 93-98, 103-104 [Kiana attended class at Antelope Valley College, knows that fire is dangerous, and knows how to exit in an emergency]; AR 149-152 [Kiana completed English, math, and art classes]; 162-165 [Kiana knows her brother, can use phone, and meets with friends at a coffee shop every Thursday].)

· The Weight of the Evidence Supports the Finding That Kiana Is Not Likely to Engage in Dangerous Behavior Due to Her Mental Impairment

“The purpose of protective supervision is to monitor active behavior in order to prevent harm from daily hazards…. [P]rotective supervision is available for those IHSS beneficiaries who … cannot protect themselves from injury, and who would most likely engage in potentially dangerous activities.” (Calderon, supra, 45 Cal.App.4th at 616; accord Marshall v. McMahon (1993) 17 Cal.App.4th 1481, 1486-87.)

The ALJ found that Kiana is not like to engage in dangerous behavior due to her mental impairment because: (1) an incident of Kiana starting a small fire while using a stove in 2017 was isolated and unlikely to recur because Kiana receives meal preparation, she now stays away from the stove because she is afraid of it, and she does not habitually use the stove on her own; (2) the incidents of Kiana leaving the home occurred after she was upset about her IHSS case, were self-directing behavior, and Kiana does not attempt to elope in other situations; and (3) Kiana’s deliberate self-harming behavior, specifically pulling her hair and hitting herself, is excluded from protective supervision, is not inherently dangerous, does not occur frequently, and demonstrates self-direction. (AR 26-28.)

The administrative record contains documentary evidence and testimony, which Petitioner does not address, that support the finding that Kiana is not likely to engage in dangerous behavior due to her mental impairment. Examples of this evidence include the following. During the September 1, 2017, reassessment, Petitioner reported that Kiana knows how to exit in case of emergency; asks for permission to use the stove; and does not habitually wander or run away. (AR 93-98, 103-104.) At the January 29, 2021, reassessment, Petitioner did not report any incidents of Kiana wandering off or otherwise placing herself in danger. (AR 89.) At the hearing, Petitioner acknowledged that Kiana does not use the stove on her own; that Kiana is not violent; and that the incident of Kiana eloping occurred because she was upset by interactions with a social worker. (AR 171-175, 178.)

Protective supervision is not available “to guard against deliberate self-destructive behavior … or when an individual knowingly intends to harm himself/herself.” (MPP § 30-757.172.) Accordingly, Kiana is not entitled to protective supervision to the extent she has engaged in deliberate, self-harming behavior such as hitting herself or pulling her hair. Petitioner develops no argument to the contrary.

In reply, Petitioner argues that “Kiana does not place herself in danger because father intervenes before that happens.” (Reply 4-5, citing AR 145, 103-104, 148.) Petitioner’s record citations do not support a conclusion that Kiana avoids dangerous activities because of monitoring by Petitioner. Petitioner does not rebut the evidence, summarized above and in the Decision, that Kiana is aware of dangers, including fire; asks for permission to use the stove and is monitored while using the stove; and that the isolated incidents of eloping occurred because Kiana was upset about IHSS issues and are not likely to recur. Nor does Petitioner rebut the evidence of self-directed behavior, summarized above, which further supports the finding that Kiana does not engage in dangerous behavior that requires protective supervision.

The weight of the evidence supports the findings that Kiana is not likely to engage in dangerous behavior due to her mental impairment. (AR 23-28.) Because the weight of the evidence supports the findings that Kiana is self-directing and not likely to engage in dangerous behavior due to her mental impairment, the weight of the evidence also supports the conclusion that Kiana does not have a need for 24-hour a day supervision. (AR 28.)

The ALJ found that Kiana does not qualify for medical accompaniment or wait time when she attends medical appointments because, based on Petitioner’s testimony, no IHSS tasks are performed during such appointments. (OB 12-13.) Petitioner did not challenge the denial of medical accompaniment in the petition. (See Pet. ¶ 40 and Prayer ¶ 1.) In the opening brief, Petitioner states that “Claimant's mother reported that he [sic] had taken Recipient to Covid appointments in December 2020 and would be taking her to medical appointments in 2021 (AR 12).” (OB 8.) Petitioner then asserts that such facts show that Kiana should have been authorized time for medical appointments. (Ibid.) However, Petitioner does not address the ALJ’s finding that IHSS tasks are not performed during the medical appointments, and he provides no legal analysis in support of his position. Accordingly, Petitioner’s argument is not persuasive and is rejected. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)

Under CCP section 1094.5(b), the court’s inquiry extends to whether there was a fair trial. (CCP § 1094.5(b).) “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) An agency must follow its own policies and procedures. (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1078.) Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “The question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard before impartial judges.” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)

Here, Petitioner and Kiana had the opportunity to challenge the denial of protective supervision in a live evidentiary hearing in front of a neutral ALJ. They had a representative at the hearing, presented documentary evidence and witness testimony, and had the opportunity to ask questions of the County’s witnesses. The ALJ weighed the evidence and issued findings of fact. This process was fair.

In the opening brief, Petitioner contends: “The ALJ allowed the hearing to be prejudiced in favor of County by reproving Petitioner in his behavior and not advising County that their complaints against the father were unreasonable and a form of harassment against Petitioner. This does not allow Petitioner to enjoy a fair trial. C.C.P. § 1094.5(b). [¶] Even without the argument that Protective Supervision, along with SSI, is property, this was not a fair trial: The ALJ did not bring the County to task regarding the complaint that father was intimidating. The facts here show the father angry — yes — but acting as a parent protecting his daughter from a County that has acted in a callous and less than helpful manner…. County did not cause father physical injury, but used the oppressive power of a large bureaucracy to ‘put him in his place’, cut off Protective Supervision and ensure the ALJ would rule on their side. The ALJ allowed this to transpire. Such led to the continuing denial of Protective Supervision.” (OB 6-7, citing Graham v. Connor (1989) 490 U.S. 386.)

Petitioner provides no citations to the record in support of this argument. The court has reviewed the hearing transcript. While the hearing was contentious and there were disruptions from both sides, the court concludes that the ALJ handled the proceedings judiciously and sought to give all participants an opportunity to speak. (See e.g. AR 124.) Petitioner does not show that any questioning by the County representative was unreasonable or harassing. Further, Petitioner does not show that he or Kiana were prejudiced by how the hearing was conducted.

Petitioner’s reliance on Graham v. Connor (1989) 490 U.S. 386 is misplaced. That case did not consider the fairness of an administrative proceeding and is inapposite. “An opinion is not authority for propositions not considered.’” (People v. Knoller (2007) 41 Cal.4th 139, 154-55.)

While not so stated, Petitioner may raise an argument concerning the neutrality of the ALJ. “Absent a financial interest, adjudicators are presumed impartial.” (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 219.) “Bias and prejudice are never implied and must be established by clear averments.” (Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 581-582.) Petitioner must show “‘an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims.’” (Nasha LLC v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483.) Petitioner does not satisfy this standard with respect to the ALJ. Petitioner does not assert the ALJ had a financial interest in the proceedings and cites no evidence that could prove, by clear averments, an unacceptable probability of actual bias.

In reply, Petitioner makes new arguments regarding the fairness of the proceedings and the adequacy of the administrative record. (Reply 1, 5-6.) Petitioner does not show good cause to raise new arguments in reply. (Balboa, supra, 149 Cal.App.3d at 1010.) The court rejects Petitioner’s new reply arguments on that basis.

Even if considered, Petitioner’s new reply arguments are not persuasive. Petitioner contends that “Respondent has not afforded a fair trial for Recipient because Respondent did not weigh the reasons why Kiana has not caused self-injury.” (Reply 6:12-13.) The court disagrees. The administrative decision shows that the ALJ, and Respondent, weighed the evidence and determined that Kiana is self-directing and not likely to engage in dangerous behavior due to her mental impairment. (AR 23-28.) While Petitioner may disagree with the findings, that disagreement does not mean the process that led to those finding was unfair.

Petitioner also argues, for the first time in reply, that the administrative record includes “indiscernible passages and multiple gaps” that impair the reader’s ability to understand the administrative proceedings. Petitioner asks the court to “remand this case for a true examination of all witnesses and facts, some that may be hidden by omission, in this case.” (Reply 5-6.)

These arguments about the record are untimely and should have been raised much earlier in this writ action. At the trial setting conference in July 2022, counsel for Respondent advised the court that the administrative record had been prepared and would be sent to counsel for Petitioner in the next couple of weeks. (Minute Order dated 7/21/22.) Petitioner apparently had possession of the record well before her opening brief was filed. He does not show good cause to raise new arguments about the sufficiency of the record in reply.

Furthermore, Petitioner contends that the deficiencies in the record occurred because of the “transcription.” (Reply 5.) The recording of the administrative hearing was transcribed on or about June 16, 2022, after the writ petition was filed. (AR 197.) Petitioner cites no authority that a defect in the transcription of an administrative proceeding, which was performed after the writ petition was filed, requires remand to the administrative agency.

Petitioner also has not developed any argument of how alleged deficiencies in the transcription prejudiced his or Kiana’s rights. The court has reviewed the parties’ record citations and has determined that Respondent’s findings are supported by the weight of the evidence. While the record does contain certain words transcribed as “indiscernible,” Petitioner does not show, with evidence or reasoned argument, that the hearing transcript omits any information that is material to the issues raised in the writ briefing.

Finally, in so far as the record is lacking as Petitioner contends, it was the obligation of Petitioner to produce a sufficient record of the administrative hearing. “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘... otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354; see also Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 366 [“Failure to provide an adequate record concerning an issue challenged on appeal requires that the issue be resolved against the appellants.”])

[1] Kiana Johnson is referred to by her first name because she has the same last name as her father, the Petitioner. No disrespect is intended.

[2] While not raised by either party, the court notes that some of the pages of the administrative record are not Bates-stamped, including pages AR 42 and 49-50. However, most pages are Bates-stamped and the page numbers of the unnumbered pages may be determined by reference to the Bates-stamped pages. Although the parties should have properly Bates-stamped the record, this defect has not prevented the court from reviewing the parties’ record citations and ruling on the petition.