Judge Curtis A. Kin, Case Number: 23STCP02563, Date: 2024-06-07 Tentative Ruling

Petitioner Latina Marie Young filed a petition for writ of mandate, wherein she challenges the decision of respondent California Victim Compensation Board (“CalVCB” or “Board”) to deny her compensation for relocation expenses after she purportedly had been a victim of rape, battery, and criminal threats.

A. Petitioner Submits an Application for Victim Compensation on April 6, 2022 Based on Multiple Crimes

On April 6, 2022, Petitioner filed application no. A22-8808115 (“Application”) with the CalVCB for emergency compensation. (AR 915-21.) Petitioner further provided records in support of her Application. (AR 922-77.) The same day, the CalVCB acknowledged its receipt of the Application. (AR 982.) On April 8, 2022, the CalVCB denied immediate payment or reimbursement. (AR 1010.) The same day, the CalVCB further requested additional information from petitioner, crime reports from law enforcement, and income related information from other government agencies. (AR 835, 853, 860-63, 912-13, 986-1005.)

In the Application, petitioner claimed that, between October 6, 2020 and November 1, 2021, she was the victim of, among other things: (1) numerous rapes; (2) battery; and (3) criminal threats while she was a resident at the group home referred to as Janet’s Island House, located at 11810 Radio Dr., Los Angeles, California 90810. (AR 915-21, 948.) Los Angeles Police Department (“LAPD”) crime reports provided the following:

On June 12, 2021, petitioner filed a report with LAPD. (AR 870-75.) Petitioner reported that, on the night of June 10, 2021 between the hours of 9:35 p.m. and June 21, 2021 at 7:00 a.m., “she was ‘raped in her sleep’…[S]he did not see, feel or hear anyone performing sexual acts on her while she slept, but believed she was raped based on a conversation amongst her roommates that she overheard from a separate room in the house.” (AR 871.) Petitioner stated that she overheard her roommates say: “She was asleep the whole time, do you know what happened to her? Someone came in while she was asleep.” (AR 871.) Petitioner did not report any vaginal pain, but requested a SART[1] exam, pregnancy test, and VD/STI/STD screening. (AR 871, 873.) Officers transported petitioner for treatment at L.A. County / U.S.C. Medical Center RTC/VIP for further treatment. (AR 873.) Petitioner did not provide a medical report or other medical summary concerning the outcome of the treatment as part of her initial Application. (AR 915-77.)

On August 3, 2021, petitioner filed a report with the LAPD in which she alleged that, on July 10, 2021, her housemate Delia Duplessis used a water hose to spray her with water multiple times at Janet’s Island House. (AR 855-59, 969.) Petitioner further stated to officers that she had two prior incidents with Duplessis. (AR 857.) Specifically, petitioner states that, on May 11, 2021, Duplessis became verbally aggressive with petitioner and grabbed petitioner’s arm tightly as she continued to yell. (AR 857.) Further, on July 5, 2021, petitioner states Duplessis sprayed her with water from a hose. (AR 857.) The report did not identify any medical treatment or injury. (AR 857.) Accordingly, LAPD characterized the interaction as assault/battery for the unlawful use of force or violence against another. (AR 859.)

On September 15, 2021, via email to LAPD, petitioner expressed interest in moving forward with prosecution of the case. (AR 970.) In the same email, petitioner further complains of severe back pain arising out of the “attacks.” (AR 974.)

On October 11, 2021, petitioner filed a report with the LAPD alleging that, on that same day, a white male with facial scars verbally harassed her and then spat on her before fleeing the scene. (AR 837-41.) The LAPD canvassed the areas with negative results. (AR 839.) The report did not identify any medical treatment or injury. (AR 839.) Accordingly, LAPD characterized the interaction as an assault, without weapons or injuries. (AR 841.)

On October 14, 2021, petitioner filed a police report with the LAPD alleging that, on the same day, a Hispanic male got into a verbal dispute with petitioner, pushed petitioner, and then fled the scene. (AR 842-46.) Petitioner stated to officers that “she had a previous encounter with the suspect approximately a week ago…[and] she does not know the suspect.” (AR 844.) The report noted that petitioner did not sustain any visible injuries and refused medical treatment. (AR 844.) Accordingly, LAPD characterized the interaction as assault/battery for the unlawful use of force or violence against another. (AR 846.)

On October 28, 2021, petitioner filed a police report with LAPD alleging that, on October 27, 2021, an unknown assailant in a gold vehicle followed her around the neighborhood and began to speak to her. (AR 847-52.) Petitioner reported that she did not understand much of what the suspect said, but did specifically hear: “I want to rape you…I can see you in the house.” (AR 849.) The report did not identify any medical treatment or injury. (AR 849.) Accordingly, the LAPD characterized the interaction as criminal threats. (AR 852.)

On January 8, 2021, petitioner filed a report with the LAPD alleging that Delia Duplessis made criminal threats. (AR 973.)

On November 8, 2021, the court granted a restraining order in favor of petitioner and against Delia Duplessis. (AR 834.) The restraining order does not indicate the circumstances leading to the restraining order. (AR 834.)

As noted above, petitioner claimed she sustained “head injury” and “irregularity at the junction of the sacrum/coccyx/knee,” due to the alleged crimes. (AR 917.) Petitioner sought compensation from the CalVCB for income loss, moving or relocation expenses, home or vehicle modifications, job retraining, and “stolen SBA loan monies.” (AR 917.) CalVCB received, in relevant part: petitioner’s 2019 and 2020 tax return statements (AR 876-911); coding summary for the treatment she received at LAC / USC VIP (AR 950-56); and a single page of a partial X-ray report of her head (AR 965). Petitioner did not submit any out-of-pocket expenses to the CalVCB with her initial application. (AR 915-77.)

B. CalVCB Staff Recommends the Denial of Petitioner’s Application Based on Insufficient Evidence, Which Petitioner Does Not Appeal

On July 21, 2022, the CalVCB staff recommended that petitioner’s application for crime victim compensation be denied because it “has been unable to verify physical injury, a threat of physical injury, or emotional injury specific to certain crimes as required by California Government Code section 13955(f) through a crime report or other evidence.” (AR 60.) As the CalVCB explained, “crime documentation received from LAPD does not provide sufficient evidence that a covered crime occurred…Therefore, [staff is]…unable to determine by a preponderance of evidence that a crime occurred.” (AR 60.)

Because the staff recommendation did not constitute a final administrative determination to deny petitioner’s application or claim, the CalVCB provided petitioner with notice of her right to appeal the staff recommendation, and advised her that, if she disagreed with the recommendation, she had 45 days in which to submit evidence demonstrating that there was a basis of relief. (AR 60-61; see 2 C.C.R. § 647.4(c).) Petitioner failed to appeal the decision within the

On September 15, 2022, the Board accepted the staff recommendation to deny petitioner’s application. (AR 64, see 2 C.C.R. § 647.4(c).) When advising the petitioner of the Board’s decision, the Board’s order told her that that she had 60 days in which to request reconsideration of the Board’s decision. (AR 64, Gov. Code, § 13959(i); 2 C.C.R. § 647.38.) To make this request, the CalVCB instructed petitioner that she “must provide NEW and relevant information” she did not have when the Board denied her application. (AR 64, 2 C.C.R. § 647.38.)

On October 3, 2022, petitioner requested reconsideration. (AR 66.) That same day, the CalVCB acknowledged its receipt. (AR 1041.) Between October 4, 2022 and April 28, 2023, petitioner submitted additional records for reconsideration. (AR 67-377, 438.) Such additional records included: paperwork regarding numerous complaints against law enforcement agencies; paperwork regarding her towed vehicle; records related to an unlawful detainer proceeding and housemate disputes; various photographs of housemates, furniture, building interiors, and the public; text messages; paperwork regarding missing persons information; a copy of the Civil Harassment Restraining Order against Delia Duplessis; paperwork related to Delia Duplessis’s request for a restraining order against Petitioner; paperwork related to a Covid-19 economic injury disaster loan; information regarding incidents involving petitioner’s children; paperwork related to a criminal defendant; SBA application alerts; and complaints against a medical professional. (AR 67-377, 438.) Of relevance to the underlying Application, petitioner submitted the following:

On May 18, 2023, the Board denied petitioner’s request for reconsideration. (AR 1047-49.) The Board determined that the information did not meet the criteria for granting reconsideration because petitioner did not provide new and additional information that was not reasonably available at the time of the hearing. (AR 1047-49.) The Board further determined that, even if the additional information did meet the criteria for reconsideration, it did not overcome the reason for the staff’s recommendation that her application be denied as there remained insufficient evidence to demonstrate that petitioner was injured or threatened with injury as a direct result of a crime. (AR 1047-49.)

Post-decision, between May 18, 2023 and May 24, 2023, petitioner continued to submit records to the CalVCB. (AR 378-432.)

On July 21, 2023, petitioner filed a petition for writ of mandate. On January 3, 2024, respondent filed an Answer. On January 12, 2024, petitioner filed a “Reply (Traverse) to Return.”

On March 15, 2024, petitioner filed an opening brief. On April 16, 2024, respondent filed an opposition. On April 29, 2024, respondent filed an errata to the opposition. On May 3, 2024, petitioner filed a reply. The Court has received lodged copies of the joint appendix and administrative record.

The Court reviews the Board’s final decisions of applications for compensation pursuant to CCP § 1094.5. (Gov. Code § 13960(a).) 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).)

Because petitioner does not have a fundamental vested right to compensation from the Board, the court reviews the Board’s decision to determine whether it is supported by substantial evidence. (Madrigal v. California Victim Comp. & Government Claims Bd. (2016) 6 Cal.App.5th 1108, 1113; Blazevich v. State Bd. of Control (1987) 191 Cal.App.3d 1121, 1125.) Substantial evidence is “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-85), or evidence of ponderable legal significance which is reasonable, credible and of solid value (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633). “Courts may reverse an [administrative] decision only if, based on the evidence…a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) 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 their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

The Victim Compensation Board is charged with determining claims for financial assistance from crime victims pursuant to California’s legislative finding that providing compensation to victims of crimes to defray pecuniary losses is in the public interest. (Gov. Code § 13950(a).) An applicant carries the burden of proof to establish an entitlement to relief by a preponderance of the evidence in these hearings. (Gov. Code § 13959(c); see also 2 C.C.R. § 647.32(a), (c).) An applicant who meets all the following requirements are eligible for compensation: (1) the applicant is a victim; (2) the crime occurred in California or the victim was a resident of California; (3) the application is timely; (4) the injury was a direct result of a crime; (5) as a direct result of the crime, the victim sustained physical injury or emotional injury and a threat of physical injury; and (6) the injury has resulted or may result in pecuniary loss within the statutory scope of compensation. (Gov. Code §§ 13955, 13959(c) [referring to section 13955].)

The statutory scheme permits delegation of hearing of appeals to hearing officers. (Gov. Code § 13959(g).) The Board is required to issue a written decision, typically based on Board action adopting or rejecting the proposed decision of the hearing officer. (Gov. Code 13959(h), 2 C.C.R. §§ 647.36, 647.37.1.)

“In general, a party must exhaust administrative remedies before resorting to the courts.” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.) The exhaustion doctrine “requires that a party must not only initially raise the issue in the administrative forum, but he must proceed through the entire proceeding to a final decision on the merits of the entire controversy.” (McHugh v. County of Santa Cruz (1973) 33 Cal.App.3d 533, 539.) “[E]xhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts.” (Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 293.) “The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).” (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 391.) Petitioner bears the burden to establish that it exhausted administrative remedies. (Westinghouse Elec. Corp. v. County of Los Angeles (1974) 42 Cal.App.3d 32, 37.)

Section 647.4 of title 2 of the California Code of Regulations governs the administrative review process for crime victim assistance applications. The Board’s determination on applications for assistance is initially addressed by a staff recommendation. (2 C.C.R. § 647.4(a).) Staff may recommend approval, denial, or approval in part and denial in part of an application. (2 C.C.R. § 647.4(a).) If staff recommends denial in whole or in part, “the applicant has 45 calendar days from the date of the mailing of the notice of the staff recommendation to request in writing that the matter be set for hearing to contest the staff recommendation.” (2 C.C.R. § 647.4(a).) The Board informs applicants that, if they do not appeal within 45 days, the application becomes final. (AR 1029.) The applicant may then either file a petition for writ of administrative mandate or seek reconsideration from the Board. (Gov. Code § 13960.) Where the applicant seeks reconsideration, the applicant must produce “new and additional evidence not reasonably available to the applicant at the time of the hearing” or reconsideration will not be granted. (2 C.C.R. § 647.38.)

On July 21, 2022, staff mailed a notice to petitioner informing her that their recommendation was to deny the application for crime victim compensation. (AR 1027.) The notice informed petitioner that she had a right to request a hearing. (AR 1027.) The notice also stated: “Read the following page carefully and fill out as completely as possible. It is an Appeal Form. You must return this form within 45 days if you wish to request a hearing.” (AR 1027.) The next page was an “Appeal Verification Form,” which informed petitioner that she had 45 days from July 21, 2022, the date listed in the notice, to file an appeal. (AR 1029.) The Appeal Verification Form stated: “If you do not appeal within 45 days, the recommendation will become final.” (AR 1029.)

Petitioner did not file an appeal. (AR 7.) After staff mailed the notice to petitioner, petitioner called to follow up on her application on September 12, 2022. (AR 7.) Staff informed petitioner that her application was denied and the reasons for denial. (AR 7.) Petitioner then asserted that her application should be reconsidered. (AR 7.) Staff told petitioner that reconsideration had not occurred. (AR 7.) Petitioner then filed a request for reconsideration. (AR 7.)

Petitioner’s failure to request an appeal by September 4, 2022 (45 days from the date of the notice) is fatal to the instant petition for writ of mandate. “The exhaustion doctrine…recognizes and gives due respect to the autonomy of the executive and legislative branches, and can secure the benefit of agency expertise, mitigate damages, relieve burdens that might otherwise be imposed on the court system, and promote the development of a robust record conducive to meaningful judicial review.” (Hill RHF Housing Partners, L.P. v. City of Los Angeles (2021) 12 Cal.5th 458, 478.) Had petitioner filed an appeal, petitioner would have been granted a hearing, after which the Board would have provided a written decision on petitioner’s application. (See Gov. Code § 13959(a), (h).) Having failed to file an appeal, petitioner deprived the Court of the benefit of the Board’s expertise in its review and development of the record and issuance of a written decision.

In the opening brief, petitioner asserted that she requested an appeal hearing by facsimile on July 13, 2022. (Opening Br. at 4:3-6.) In the reply, petitioner contends that she requested an appeal on July 13, 2022 after staff informed her of the denial by phone. (Reply at 17:1-3; see also Reply at 5:24-26.) Petitioner does not cite to the administrative record by Bates stamp number indicating where the purported appeal request is located. The Court is not required to search the record to ascertain whether it supports an appellant’s contentions, nor make the parties’ arguments for them. (See Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14.)

In any event, the Board’s case management system reflects that, on July 13, 2022, petitioner submitted a “Request for Reconsideration” and “Medical Records.” (AR 8.) The case management system also reflects that on July 13, 2022, petitioner called staff upset that her application has not been processed and that “her EA was denied.” (AR 7.) The “EA” referenced was the emergency award, which was denied on April 8, 2022 as no losses have been submitted. (AR 8; see 2 C.C.R. § 649.8(c) [“An emergency award may be allowed when it is necessary to avoid or mitigate a substantial hardship to the applicant that is the direct result of the qualifying crime”].) The denial of the emergency award was not a recommendation to deny petitioner’s application for victim compensation under section 647.4(a) of title 2 of the California Code of Regulations. Petitioner contends that there was no reference to emergency compensation in the denial. (Reply at 5:24-25.) However, respondent’s case management records constitute substantial evidence that the denial discussed during petitioner’ s call on July 13, 2022 was about an emergency award, not the subject application for victim compensation.

Moreover, petitioner was not notified until July 21, 2022 of staff’s recommendation to deny her application. (AR 1027.) Accordingly, petitioner’s purported “Request for Reconsideration” before the notice of the denial recommendation either was premature or could not have related to the staff’s recommendation to deny her application.

To the extent that petitioner contends her request for reconsideration submitted on October 3, 2022 and received on October 4, 2022 constitutes an appeal (AR 66, 1041), such contention would be unavailing. A request for reconsideration can only be granted if the applicant produces “new and additional evidence not reasonably available to the applicant at the time of the hearing.” (2 C.C.R. § 647.38.) The Board reviewed the 254 pages of documents petitioner submitted and determined, “While Latina Y. provided new and additional information, there is no evidence that it was unavailable to her at the time of the hearing.” (AR 1048-49.) Petitioner has not provided any argument regarding how the Board was incorrect in this conclusion. Accordingly, petitioner has failed to meet her burden to demonstrate that she exhausted the available administrative remedies, specifically the appeal and hearing available under section 647.4(c) of title 2 of the California Code of Regulations and Government Code § 13959.

Even if the Court were to reach the question of whether substantial evidence supported the denial of petitioner’s application, the Court would find that denial was warranted. To be eligible for compensation, petitioner was required to show that she was a “victim,” namely, someone who sustained injury as a direct result of a crime. (Gov. Code §§ 13951(b)(1), 13951(g), 13955(a)(1), 13955(e)(1).) A “crime” is defined as a “a crime or public offense, wherever it may take place, that would constitute a misdemeanor or a felony if the crime had been committed in California by a competent adult.” (Gov. Code § 13951(b)(1); see also 2 C.C.R. § 649(a)(17) [defining “qualifying crime” as “a crime as defined in Government Code section 13951(b) that resulted in” injury, threat of injury, or death].)

The Board may rely on written reports from law enforcement during the hearing. (2 C.C.R. § 647.31(d).) “Significant weight may be given to the evidence from and conclusions of a law enforcement agency after investigation of the qualifying crime when determining whether or not a qualifying crime occurred.” (2 C.C.R. § 649.38(b).) Evidence of a sexual assault may include “[p]hysical evidence or medical documentation that demonstrates an injury consistent with sexual assault such as sexual assault examination findings.” (2 C.C.R. § 649.49(a)(3).)

Police reports do not indicate any conclusion from law enforcement that petitioner was the victim of sexual assault. (AR 343-47, 870-75.) Petitioner’s medical records do not indicate the occurrence of any sexual assault. (AR 318-21.) Petitioner’s x-ray demonstrated mild degenerative changes in her spine. (AR 318.) Petitioner’s CT scan of her head did not show any evidence of hemorrhage, infarction, or fracture. (AR 319-21.) There were no results of any rape kit in the record.

Police records do not indicate that she was the victim of any other qualifying crime. The LAPD never concluded that petitioner’s allegations of battery or threat of battery were substantiated. (See AR 837-59, 969, 973.) Although petitioner obtained a restraining order against Delia Duplessis, the order did not indicate any actions from Duplessis that justified the order. (AR 100, 834.) The medical records discussed above do not demonstrated petitioner having suffered acute trauma or injury.

For the foregoing reasons, even assuming petitioner exhausted her administrative remedies, substantial evidence supports the conclusion regarding insufficient evidence of a qualifying crime having occurred. (AR 1027.)

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

[1] “SART” refers to a multidisciplinary “sexual assault response team” that provides a forum for interagency cooperation and coordination, to assess and make recommendations for the improvement in the local sexual assault intervention system, and to facilitate improved communication and working relationships to effectively address the problem of sexual assault in California. (Pen. Code §§ 13898, 13898.1.)