Judge Curtis A. Kin, Case Number: 22STCP02974, Date: 2024-04-30 Tentative Ruling

Petitioners Families First Funeral Services (“Families First”) and Shon-Tai Burton petition for a writ of mandate directing respondent Cemetery and Funeral Bureau, Department of Consumer Affairs, State of California (“Bureau”) to set aside and vacate its decision to revoke petitioners’ funeral licenses.

Families First is a funeral establishment in Carson, California, and Burton is its owner and responsible funeral director. (AR 218.) On February 15, 2008, the Bureau issued funeral director license number 3039 to Petitioner Burton. On June 2, 2015, the Bureau issued funeral establishment license number 2247 to Petitioner Families First, with Burton associated with the license as the business owner and responsible funeral director (AR 218.) Burton’s spouse, Michael A. Brass Jr., is an arrangement counselor and employee of Families First who runs the day-to-day operations of the business. (AR 600.) Brass used to own and operate another funeral establishment—All Brass Memorial Chapel—but he surrendered its funeral establishment license in 2010 in a stipulated resolution of a disciplinary action against that business. (AR 220-24.)

The Bureau filed its initial Accusation against petitioners on August 10, 2018. Following an administrative hearing, the Bureau issued a Decision and Order, which was effective October 11, 2019 (“2019 decision”). In the 2019 decision, the Bureau revoked petitioners’ licenses, stayed the revocations, and placed them on probation for three years with terms and conditions that included a 30-day suspension and requirements to obey all laws, submit quarterly compliance reports, and pay $10,000 in costs to the Bureau on a payment plan. (AR 172-93 [2019 decision], 194-205 [Accusation].)

Between February and December 2020, the Bureau received three consumer complaints alleging months-long delays of Families First in providing cremated remains to family members. (AR 244, 302, 398.) Two of the consumers who complained also stated Families First failed to provide death certificates in a timely fashion. (AR 244, 398.) In September 2020, the Bureau itself initiated another complaint internally after Families First did not renew its funeral establishment license while on probation. (AR 354-59.) In January 2021, the Bureau received another consumer complaint alleging that Families First was refusing to release a decedent’s remains to the coroner without payment of an exorbitant fee. (AR 453.) In April 2021, the Bureau received a complaint from the Health Registrar of the Ventura County Health Department alleging that Families First had not returned a signed burial permit issued in January 2021 or payment for the permit. (AR 507-16.)

Following receipt of the complaints, the Bureau commenced an investigation. Bureau personnel investigated the complaints and spoke to the complaining consumers, Burton, Brass, and other witnesses. The investigations did not substantiate the complaint that Families First had refused to release a decedent's remains to the coroner, but they revealed evidence supporting the other complaints and evidence of additional violations beyond what was stated in the complaints. (AR 452-66.)

On March 9, 2021, the Bureau filed the Accusation and Petition to Revoke Probation against Burton and Families First (AR 13.) The Bureau amended the pleading on June 10, 2021. On March 29, 2022, after receiving additional complaints and conducting additional investigations, the Bureau filed the operative Second Amended Accusation and Petition to Revoke Probation (“Accusation and PTR”) against petitioners. (AR 153-70.) The Accusation and PTR alleged six causes for discipline and one cause to revoke probation, as follows:

• First Cause for Discipline – Failure to Register Death within Eight Calendar Days – violating Business and Professions Code section 7686 and Health and Safety Code section 102775, in that petitioners failed to register the deaths of decedents CC, EM, MA, TS, and MJ with the local registrar within eight calendar days after death (AR 165);

• Second Cause for Discipline – Holding of Decedent Pending Disposition More than Eight Calendar Days After Death – violating Business and Professions Code section 7686 and Health and Safety Code section 103070, in that petitioners temporarily held the bodies of decedents pending disposition more than eight calendar days after death (AR 166);

Unprofessional Conduct– violating Business and Professions Code section 7707, in that petitioners engaged in conduct constituting unprofessional conduct in regard to their handling of the funeral arrangements of decedents CC, EM, MA, TS, and MJ (AR 166);

• Fourth Cause for Discipline – Violation of Municipal Code – violating Business and Professions Code section 7704, by violation of Carson Municipal Code section 6310, subdivision (a), in that petitioners provided funeral goods and services to consumers for seven months after their business license expired (AR 167);

• Fifth Cause for Discipline – Embalming without Authorization– violating Business and Professions Code section 7703, in that petitioners violated California Code of Regulations, title 16, section 1214, by authorizing and completing the embalming of decedent TS without receiving written authorization from the person having the legal right to control the disposition of the remains (AR 168);

• Sixth Cause for Discipline – Failure to Exercise Direct Supervision and Control – petitioner Burton violated Business and Professions Code section 7686 and 7703 and California Code of Regulation, title 16, Section 1204, subdivision (b), by failing to exercise direct supervision and control over the conduct of Families First Funeral Services as is necessary to ensure full compliance with the Cemetery and Funeral Act, the provisions of the Act, and the applicable provisions of the Health and Safety Code (AR 168), and;

• First Cause to Revoke Probation – Failure to Obey All Laws– throughout their probation, petitioners failed to comply with the probation condition which required them to comply with all conditions of probation and obey all federal, state and local laws, and all rules and regulations (AR 169).

The hearing on the Accusation and PTR was initially set for January 31 through February 4, 2022. (AR 41.) On January 19, 2022, petitioners’ counsel filed a request for continuance on the basis that their attorney, Emanuel Thomas, was recovering from oral surgery. (AR 73.) The continuance motion also requested to add two additional days of hearing. (AR 73.) On January 24, 2022, the Office of Administrative Hearings (“OAH”) issued an order granted the continuance, and the hearing date was continued to May 23 through June 1, 2022. (AR 82-83.) The Bureau served a Notice of Continued Hearing on petitioners and their attorney on February 3, 2022. (AR 86-89.)

On May 17, 2022, petitioners filed a second request for a continuance, citing the unavailability of their attorney. According to petitioners’ counsel, he was required to appear at several criminal proceedings scheduled for hearing during the week of May 30 through June 3, 2022. (AR 98-99.)

The next day, on May 18, 2022, petitioners’ counsel filed an amended request for a continuance, this time citing three grounds. First, petitioners asserted that on Friday, May 13, 2022, they received a final witness and exhibit list from the Bureau which stated that “[t]he hearing originally scheduled for January 31, - February 4, 2022, was continued and extended from one week to two weeks to allow for the additional witnesses and evidence relating to the Second Amended Accusation/Petition to Revoke.” (AR 104, emphasis in original; see also AR 90-91.) Second, counsel cited nine criminal cases which purportedly had proceedings scheduled the week of May 30 through June 3, 2022. (AR 104.) Counsel asserted that his clients’ rights would be violated if the hearings did not go forward as scheduled. (AR 104.) Third, counsel contended that he represented a client in a murder trial, People v. Joseph Hill, Case No. TA155815, which had purportedly been advanced to May 27, 2022. (AR 103-04.) The client purportedly refused to waive time on his murder time due to his mental state. (AR 104.) Petitioners’ counsel represented that he requested an advancement to June 1 or 2 to not interfere with petitioners’ administrative case. (AR 104.) The request was purportedly denied. (AR 104.)

The Bureau objected to the second continuance request. (AR 108-13.) The Bureau contended that a review of the superior court’s website indicated that trial in the Hill matter was scheduled for June 6, 2022, not May 27, 2022. (AR 108, 111.) The Bureau also represented that its counsel called the court clerk in the Hill case, who confirmed that the trial date was June 6, 2022. (AR 108.) Allowing for the possibility that the court website was not up to date, the Bureau asserted that petitioners did not provide any supporting documentation, such as a minute order. (AR 108.) The Bureau also argued that, because the defendant in the Hill case was not arraigned until February 9, 2022, petitioners’ counsel was aware of the hearing date in the administrative matter before proceedings in the Hill case commenced. (AR 108.)

Petitioners responded to the objection. (AR 114-31.) Petitioners argued that their counsel was retained to represent the defendant in the Hill case after the arraignment and the preliminary hearing, i.e., March 10, 2022. (AR 111, 115.) Petitioners also asserted that the judge in the Hill case set the trial for June 6, 2022 but “allowed the trial to be advanced to an earlier date for the defendant’s counsel to appear and hopefully persuade the defendant to waive time so his attorney can have adequate time to prepare for trial or move forward with the trial, while remaining within the defendant's constitutional rights for a speedy trial.” (AR 115.) Attached to the objection were four exhibits. Exhibit 1 was an “Acknowledgement of Discovery Receipt” dated March 31, 2022 signed by the Deputy District Attorney in the Hill case, with a discovery log attached. (AR 118-20.) Exhibit 2 was an “Attorney Special Appearance,” which contained notes from the attorney who specially appeared on behalf of the defendant on May 10, 2022. (AR 122.) According to the specially appearing attorney, the defendant did not want to waive time. (AR 122.) The judge set the trial for June 6, 2022. (AR 122.) The judge said the trial could be advanced, but the defendant would need to be consulted. (AR 122.) Exhibit 3 was a “Motion to Continue,” wherein petitioners’ counsel requested that the pre-trial conference be continued to June 24, 2022 because counsel hired an investigator to investigate the case. (AR 124-27.) Exhibit 4 was an email from the Deputy District Attorney to petitioners’ counsel, dated May 13, 2022, which stated: “So we are set for trial 6/6/22. I intend on subbing witnesses for that week unless you are going to advance the case to get a time waiver from your client. If he will even waive time? My understanding is he refused at the last court date.” (AR 129.)

On May 19, 2022, OAH issued an order denying the second request, noting that petitioners’ attorney had stated in his January 19, 2022, continuance request he was available on any date after April 18, 2022. (AR 133.) OAH’s Order further stated that petitioners’ motion and supporting documents failed to establish that petitioners’ counsel is unavailable from May 23 to May 27, 2022, or that he was taken by surprise on May 13, 2022, that the hearing was scheduled for two additional days the following week. (AR 133.)

The matter was heard by videoconference before an Administrative Law Judge (“ALJ”) from the Office of Administrative Hearings on May 23 through May 25, 2022. (AR 598.)

At the outset of the hearing, the ALJ stated with respect to petitioners’ request for a continuance:

I should say, Mr. Thomas, I did receive and review your request for a continuance. I know there have been multiple continuance requests related to another matter you have pending on a different case. I want to acknowledge receipt of that, it has been ruled on, the hearing will proceed. However, we're not going to make you be in two places at once, should the hearing in your other matter or the trial in your other matter actually commence on the 27th, but let’s see what we can get done -- that is a few days away – and take whatever time is necessary to accommodate the scheduling of that.

There are many other days scheduled for this hearing, and hopefully we can get through a good number of the witnesses, if not all of them, before you’re called away for something else.

Before opening statements, the Bureau sought to exclude Brass from the hearing because he was neither the licensee nor a party. (HT, Vol. 1, p. 9.) The Bureau argued that Brass was petitioners’ primary percipient witness and that it did not want him to adjust his testimony based on the testimony of the Bureau’s witnesses. (HT, Vol. 1, p. 10.) Counsel for petitioners responded:

Your Honor, he’s actually—that is true—that is true that he is the husband, but he’s actually the one that deals with all the families. He was going to be my witness in her place, because their daughter is actually in ICU, which I’ve sent the Court notice of that, and she has to be with her daughter. Her daughter’s been in ICU since Tuesday, and she doesn’t look like she’s going to be getting out anytime soon, so the mother is there.

And, again, I was going to have Mr. Brass as the witness for the funeral home, just as I would have Ms. Shon-Tai Burton as the witness for the funeral home, and Ms. Shon-Tai Burton would also be able to be called, she would hear the witnesses just like the State has an opportunity to have their main witness or their investigative officer present. That's all I’m saying, your Honor. But if the Court wishes, I can have him excused.

(HT, Vol. 1, p. 10.) Recognizing Brass’s role at the business and in light of Burton’s unavailability, the ALJ allowed Brass to attend the proceedings and denied the Bureau’s request to exclude him. (HT, Vol. 1, p. 12.)

At the hearing, the Bureau presented clear and convincing evidence in the form of witness testimony and documentary evidence that proved that Families First committed the charged acts of failing to register deaths within eight days and holding decedents pending disposition for more than eight days. (AR 250-51, 305-09, 402-04, 463-66, 514, 615-16; HT, Vol. 1, pp. 145-46.) The ALJ found that petitioners’ evidence about why that happened did not disprove the charges and, in some cases, conflicted with the explanations given to family members at the time. (HT, Vol. 1, pp. 50-51; AR 615-16.)

The evidence also proved that Families First operated with an expired funeral establishment license and an expired city business license. (AR 357-58.) Petitioners also did not obtain authorization to embalm decedent TS in the correct form before doing so, even if TS’s husband verbally authorized the embalming in advance as claimed. (AR 462-63.) In addition, Families First failed to pay for a disposition permit for decedent MJ for almost four months after the decedent’s death and falsified the disposition date on the permit provided to the Bureau. (AR 512-15; HT Vol. II, pp. 23, 30-31.) Furthermore, Burton failed to supervise Families First adequately to prevent the violations. (AR 353-59, 464-66; HT, Vol. 1, 112-13.) The ALJ found that this conduct was unprofessional and occurred while Families First and Burton were already on probation. (AR 616.) Indeed, some of the unprofessional conduct took place just a few months after probation began. (AR 602-06.) At the same time, Families First and Burton presented no evidence of changed business practices, increased compliance efforts, or any other evidence of rehabilitation apart from the renewal of Families First’s funeral establishment license and city business license. As found by the ALJ, their evidence about some clients having positive experiences with Families First provided no assurance that Families First and Burton would avoid similar violations in the future. (AR 617.)

The ALJ found that clear and convincing evidence supported sustaining all alleged causes for discipline and revocation. (AR 621-27.) After having determined that the Bureau had proven that Families First and Burton committed serious and repeat violations that caused consumer harm while they were already on probation, the ALJ held that allowing petitioners to continue providing funeral services would not protect the public, which is the highest priority for the Bureau in exercising its licensing, regulatory, and disciplinary functions. (AR 629-30.) The ALJ’s Proposed Decision held that the proper disciplinary action is revocation of petitioners’ licenses. (AR 630.)

The ALJ submitted the Proposed Decision on June 24, 2022. (AR 632.) On July 14, 2022, the Bureau adopted the Proposed Decision with an effective date of August 15, 2022 (the “Decision”). (2^nd Amend. Opening Br. at 3:14-16; Opp. at 7:28-8:2.)

On August 8, 2022, petitioners Families First and Burton filed a verified Petition for Writ of Mandate. On September 22, 2022, respondent Bureau filed an Answer.

Prior to August 15, 2022, effective date of the Decision, petitioners filed an ex parte application for a stay of the revocation order. On August 16, 2022, the Court (Hon. Mary H. Strobel) denied petitioners’ application.

On June 23, 2023, petitioners filed an opening brief. On February 29, 2024, pursuant to an October 5, 2023 order allowing for an amended opening brief, petitioners filed an amended opening brief. On April 2, 2024, respondent filed an opposition. On April 15, 2024, petitioners filed a second amended opening brief, which solely corrected citations to the administrative record. (2^nd Amend. Opening Br. at 1:22-24.) On April 16, 2024, petitioners served and filed a reply.[1] On the same date, petitioners filed the administrative record and hearing transcript. The Court has also received a hard copy of the joint appendix.

Under CCP § 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).)

The instant petition presents two questions: (1) whether it was an abuse of discretion for the ALJ to deny a continuance of the hearing, when counsel for petitioners was purportedly unable to delay a trial set for May 27, 2022 and when Burton was unable to attend the hearing because her daughter was hospitalized; and (2) whether it was an abuse of discretion to revoke petitioners’ licenses.

With respect to the first question, courts exercise independent judgment in determining whether an ALJ had any discretion under the circumstances to grant a continuance pursuant to the applicable law. (Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 863.) Orders granting or denying a continuance “will be upheld unless a clear abuse is shown, amounting to a miscarriage of justice.” (Ibid.)

With respect to the second question: “[T]he penalty imposed by [an] administrative body will not be disturbed in the mandate proceeding unless a manifest abuse of discretion is shown. If reasonable minds may differ as to the propriety of the penalty imposed, there has been no abuse of discretion. It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown.” (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46-47, internal citations omitted.)

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, internal quotations omitted.)

Petitioners contend that it was an abuse of discretion for the ALJ to deny a continuance based on their counsel’s lack of notice of the hearing dates and representation of other clients in criminal matters, as well as the inability of Burton to attend the hearing. (AR 104, 115; HT, Vol. 1, p. 10.)

(a) The agency may grant continuances. When an administrative law judge of the Office of Administrative Hearings has been assigned to the hearing, no continuance may be granted except by him or her or by the presiding judge of the appropriate regional office of the Office of Administrative Hearings, for good cause shown.

(b) When seeking a continuance, a party shall apply for the continuance within 10 working days following the time the party discovered or reasonably should have discovered the event or occurrence which establishes the good cause for the continuance. A continuance may be granted for good cause after the 10 working days have lapsed if the party seeking the continuance is not responsible for and has made a good faith effort to prevent the condition or event establishing the good cause.

In the event that an application for a continuance by a party is denied by an administrative law judge of the Office of Administrative Hearings, and the party seeks judicial review thereof, the party shall, within 10 working days of the denial, make application for appropriate judicial relief in the superior court or be barred from judicial review thereof as a matter of jurisdiction. A party applying for judicial relief from the denial shall give notice to the agency and other parties. Notwithstanding Section 1010 of the Code of Civil Procedure, the notice may be either oral at the time of the denial of application for a continuance or written at the same time application is made in court for judicial relief.

On May 19, 2022, the ALJ denied the application by petitioners’ counsel for a continuance based on lack of notice of hearing dates and clients in other criminal matters. (AR 103-05, 133-35.) The order denying the continuance was served on petitioners’ counsel by email. (AR 135.) Petitioners make no showing that they sought review of the denial of the continuance in the superior court, either within 10 working days of the denial or thereafter. In the opposition, respondent contends that petitioners are barred from seeking judicial review of the denial of the continuance now. (Opp. at 4-11.) Petitioners do not demonstrate how the Court has jurisdiction to review the ALJ’s denial of the continuance. Indeed, petitioners did not respond to this argument in their reply at all.

Even if the Court had jurisdiction to consider petitioners’ request for a continuance based on the criminal matters, petitioners do not show that their counsel did not have notice of the dates of the administrative hearing. Although the Bureau asserted in its Final Witness and Exhibit List dated May 13, 2022 that the hearing was extended from one week to two weeks and that the matter was currently set for 10 days of hearing (AR 90-92), this assertion appears to have been erroneous. In response to petitioners’ request to continue the hearing and extend the hearing time from five to seven days, the ALJ had scheduled the hearing from May 23 to June 1, 2022, a total of seven working days, with the Memorial Day holiday excluded. (AR 73, 82-84.) The Bureau served notice that the hearing was scheduled from May 23 to June 1, 2022. (AR 86-89.) Accordingly, the ALJ did not abuse his discretion in finding that petitioners filed to establish that their counsel “was taken by surprise on May 13, 2022, that the hearing was scheduled for two additional days the following week.” (AR 133.)

Petitioners also do not demonstrate that any criminal proceeding prevented the administrative hearing from going forward from May 23 through June 1, 2022. The Bureau presented a printout from the Los Angeles Superior Court website that indicated that trial in the Hill case was set for June 6, 2022. (AR 111.) Petitioners responded to the Bureau’s objection by asserting that, even though the judge in the Hill case set the trial for June 6, 2022, the judge allowed the trial to be advanced to an earlier date so that counsel could persuade the defendant to waive time so that counsel could adequately prepare. (AR 115.) However, none of petitioners’ exhibits attached to the response indicated that the trial in the Hill case had actually been advanced to May 27, 2022 or any other date earlier than June 6, 2022. (AR 117-129.) The only trial date referenced in the exhibits was June 6, 2022. (AR 122, 129.) Petitioners presented no other documentary evidence purporting to show that their counsel had to appear at any other criminal proceedings during the scheduled dates for the administrative hearing. (AR 104.)

In any event, even if petitioners’ counsel had to appear at any criminal proceeding during the period when the administrative hearing was scheduled, the ALJ allowed for the possibility that the hearing would be continued if it were not concluded by May 27, 2022. (HT, Vol. 1, p. 9; see also AR 134 [“If the hearing is not concluded by May 27, 2022, the assigned administrative law judge will have the discretion to make any scheduling orders he or she deems necessary based on facts and circumstances existing at the time”].)

Accordingly, petitioners fail to demonstrate that the ALJ abused his discretion in finding that petitioners’ motion for a continuance failed to establish that their counsel was unavailable from May 23 to 27, 2022 or that the hearing should proceed as scheduled on May 23, 2022.

With respect to petitioner Burton’s inability to attend the hearing due to her daughter’s hospitalization, petitioners do not show that they ever requested a continuance for that reason. Counsel stated during the hearing that, if Burton had been able to attend, she “would also be able to be called, she would hear the witnesses just like the State has an opportunity to have their main witness or their investigative officer present.” (HT, Vol. 1, p. 5.) However, petitioner never requested a continuance to allow Burton to attend the hearing. Accordingly, petitioner fails to show how Burton “was denied the opportunity to be present at her own hearing.” (2^nd Amend. Opening Br. at 14:16-17.)

In any event, 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.) The procedural fairness of an administrative proceeding is a question of law and accordingly reviewed de novo. (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Here, the evidence showed that Brass, not Burton, handled the day-to-day operations of Families First. (AR 600.) Petitioners’ counsel stated at the hearing that Brass was “actually the one that deals with all the families.” (HT, Vol. 1, p. 10.) The consumer complainants who appeared during the hearing testified that they dealt with Brass (HT Vol. 1, pp. 42, 48-50, 76-78, 83-84.) Brass told Jennifer Livingston, a decedent’s family member, that he was the owner of Families First. (HT, Vol. 1, pp. 84-85.) Bureau investigator Neil St. Pierre testified that Brass was the operator and the person that works in the office of Families First. (HT, Vol. 1, p. 119.) According to St. Pierre, he only spoke with Burton one or possibly two times over the four years he investigated Families First, because “Brass was the face of the company” and he “didn’t really see her as an active part of the funeral establishment.” (HT, Vol. 1, 120-21.)

In the reply, petitioners argue that Burton was not able to call witnesses, observe their testimony, assist her counsel in responding to the testimony, rebut the Bureau’s evidence, or review the final exhibits admitted during the hearing for evidentiary concerns. (Reply at 4:13-19.) Burton fails to show that she would have been able to provide any such assistance even if she did attend the hearing. Even though Burton was the licensed owner and responsible funeral director of Families First, she operated the establishment through Brass. Brass was not deprived of any opportunity to be heard, as he testified at the hearing. (AR 614-15.) Burton fails to establish any prejudice that resulted from her inability to attend the hearing.

For the foregoing reasons, petitioners fail to show that the ALJ abused his discretion by having the hearing proceed on May 23, 2022.

Petitioners assert that revocation of their funeral licenses constitutes an abuse of discretion. Petitioners argue that they were handling a drastic increase in bodies due to the COVID-19 pandemic, doctors refused to promptly sign death certificates, and county crematories were unable to handle the increased workload. (2^nd Amend. Opening Br. at 17:7-11.) Petitioners contend that they maintained communication with families, made prompt restitution to unsatisfied consumers, and took immediate action to correct a bounced check submitted for license fee renewals. (Id. at 17:12-17.) Petitioners maintain that no parties were injured and that there was no threat of injury. (Id. at 18:19-21.)

The Bureau must consider its disciplinary guidelines in reaching a disciplinary decision. (16 C.C.R. § 1253.6.) “Deviation from these guidelines and orders, including the standard terms of probation, is appropriate where the bureau in its sole discretion determines that the facts of the particular case warrant such a deviation--for example, the presence of mitigating factors; the age of the case; evidentiary problems.” (Ibid.)

The guidelines recommend a stayed license revocation with three years’ probation as a minimum disciplinary action. (AR 628.) The guidelines recommend outright revocation as the maximum disciplinary action. (AR 628.) In addition, when a suspension or revocation is based on violations of Business and Professions Code section 7703, 7704, and 7707, the Bureau shall consider the nature and gravity of the acts, the time that has elapsed since commission of the acts, whether the licensee has complied with any terms of probation, and evidence of rehabilitation submitted by the licensee. (16 C.C.R. § 1253.5(b)(2).)

Petitioners do not dispute the factual findings of the ALJ, only that revocation of their licenses was excessive. The ALJ found that Families First failed to register deaths within eight days and held decedents pending disposition for more than eight days. (AR 615.) The ALJ also found that Brass falsely promised family member JL that the remains of her aunt would arrive in time for the memorial service but they never did. (AR 616.) The ALJ also found that “Families First operated with an expired funeral establishment license and an expired city business license,” that “Families First and Burton also did not obtain authorization to embalm TS in the correct form before doing so,” and that “Families First failed to pay for a disposition permit for MJ for almost four months after the decedent’s death and falsified the disposition date on the permit provided to the Bureau.” (AR 616.)

With respect to Burton, the ALJ found that she “failed to supervise Families First adequately to prevent the violations.” (AR 616.) Burton “relied largely on Brass to operate the business, and she was not personally involved with any of the cases until the Bureau received the complaints and contacted Families First about them.” (AR 616.)

Based on the foregoing, the ALJ found that petitioners violated Business and Professions Code section 7703 (violation of regulations), 7704 (operating with an expired business license), and 7707 (unprofessional conduct). (AR 623-27.)

The nature and gravity of the acts, including untimely disposition of decedents’ remains and the false assurance that a loved one’s remains would arrive in time for a memorial service, are severe and egregious. Moreover, the acts at issue occurred between late 2019 and early 2021, shortly before the ALJ’s decision on June 24, 2022. (AR 602-11, 629.) Further, at the time of the acts at issue, petitioners were on probation, under which they were required to obey all state laws and regulations of programs regulated by the Department of Consumer Affairs. (AR 191.) By violating Business and Professions Code sections 7703, 7704, and 7707 while under probation, petitioners violated the terms of probation.

With respect to evidence of rehabilitation, “[f]ully acknowledging the wrongfulness of [one’s] actions is an essential step towards rehabilitation.” (Seide v. Committee of Bar Examiners (1989) 49 Cal.3d 933, 940.) Petitioners’ excuse that the violations were a result of the COVID-19 pandemic is without merit, as two of the decedents died in late 2019, before the pandemic began in March 2020. (AR 244, 302, 306-11, 616; Vol. III, pp. 66-67.) In addition, Brass attempted to attribute the late delivery of EM’s remains to another Families First employee, which the ALJ found not credible. (AR 616.) Brass gave decedents’ family members false information instead of accepting responsibility. (HT, Vol. 1, pp. 50-51; AR 615-16.) The foregoing shows that petitioners, by and through Brass, refused to accept responsibility and acknowledge the wrongfulness of her acts.

Petitioners cite cases to support their assertion that revocation of their licenses was excessive. Based on petitioners’ prior disciplinary history and lack of good faith, the cases are inapt. (Cf. Harris v. Alcoholic Beverage Control Appeals Bd. (1965) 62 Cal.2d 589, 595 [licensee had no prior disciplinary record]; Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74, 88 [licensee acted in “utmost good faith”]; Wingfield v. Fielder (1972) 29 Cal.App.3d 209, 223 [charges unsupported by the evidence]; Richardson v. Board of Supervisors (1988) 203 Cal.App.3d 486, 494–495 [termination excessive for “single, isolated incident that occurred after an unblemished six and one-half year record of public service during which he had received several commendations”].)

In light of the foregoing, the Court finds that revocation of petitioners’ licenses was not a manifest abuse of discretion.

Petitioners seek attorney fees pursuant to CCP § 1028.5(a), which states: “In any civil action between a small business or a licensee and a state regulatory agency, involving the regulatory functions of a state agency as applied to a small business or a licensee, if the small business or licensee prevails, and if the court determines that the action of the agency was undertaken without substantial justification, the small business or licensee may, in the discretion of the court, be awarded reasonable litigation expenses in addition to other costs.” Because petitioners do not prevail, petitioners’ request for attorney fees is DENIED.

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.

[1] Under the order entered on October 5, 2023, petitioner had until April 15, 2024 (15 days from the hearing date) to serve and file a reply. The Court exercises its discretion and considers the reply. (Rule of Court 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)