Judge James C. Chalfant, Case 19VECP00553 2022-12-13 Tentative Ruling

Robert Garber v. County of Los Angeles and the Department of Social Services, 19VECP00553

Tentative decision on motion to augment record: denied

Petitioner Robert Garber (“Garber”) moves to augment the record with a transcript of a hearing that occurred on December 13, 2018.

The court has read and considered the moving papers, oppositions of Respondents County of Los Angeles (“County”) and Department of Social Services (“DSS”), and a reply declaration,[1] and renders the following tentative decision.

Petitioner Garber filed this proceeding in pro per on December 12, 2019. The operative pleading is the First Amended Petition (“FAP”), filed on November 3, 2022 and alleging (1) fraud and (2) petition for reinstatement of CalFresh benefits. Because FAP appears to be only the amended pages, the Petition remains operative. The Petition and FAP shall be referred to collectively as the “FAP” and allege in pertinent part as follows.

On November 14, 2017, Garber first applied to the CalFresh Program. DSS granted the application conditional on him providing proof of satisfactory immigration status, which he did not have on hand. In the months that followed, DSS and Garber exchanged communications on Garber’s failure to identify the precise amount of an increase in income - $180 or $200.

On July 19, 2018, in retaliation, the County welfare agency in San Fernando Valley stopped Garber’s CalFresh benefits, effective July 13, 2018. It then rescinded the discontinuation on July 27, 2018 to “as otherwise eligible.” When it did, the agency authorized monthly payments of $192 for August and September 2018.

Multiple rounds of termination and appeal followed until a hearing was scheduled for November 13, 2018. At the hearing, Garber explained that the key issue was Form MC13 titled “Statement of Citizenship, Alienage and Immigration Status” (“MC13 Form”). The County representative at the hearing did not have the form, so Garber produced it. He asserted that the County and the San Fernando welfare agency had acted in bad faith.

Administrative Law Judge (“ALJ”) Shin held that the County action to discontinue CalFresh aid pending, effective September 30, 2018, could not be sustained because Garber filed a timely request for hearing. The County was ordered to issue aid pending of $192 effective October 1, 2018. The hearing was continued to December 13, 2018.

At the hearing on December 13, 2018, the County again failed to produce any documents from Garber’s file. In his December 21, 2018 proposed decision, ALJ Shin repeatedly stated that Garber never submitted the necessary documents for his claim. ALJ Shin also said that no finding had been made as to immigration status and that none was necessary.

On January 4, 2019, the County/DSS mailed Garber notice of over-issuance of CalFresh benefits for the period of October to December 2018. Garber submitted a Motion for Reconsideration and several letters to ALJ Shin.

On February 20, 2019, the County/DSS mailed notice that its records showed over 135 days of inactivity on Garber’s CalFresh account. The County would deactivate the account on April 5, 2019 if he did not use his CalFresh card by then. The County demanded that Garber repay $960 for benefits overissued.

On March 12, 2019, Garber received the County’s Statement of Position form for a hearing that never occurred, alleging that on January 4, 2019, the County had notified Garber that it overpaid him $576 in CalFresh payments. In late April 2019, Garber received another County Statement of Position for a hearing that never took place. The County continued to state that Garber failed to provide documents that verify his citizenship or immigration status. Garber kept pressing for a rehearing.

On June 26, 2019, the County Treasury sent Garber a demand for $1,536, or $960 more than the $576 the County last alleged it had overpaid.

On August 12, 2019, the Chief Administrative Law Judge (“Chief ALJ”) informed Garber via letter that the County stated that there had been no lapse in CalFresh coverage. The County changed his eligibility code in April 2019 from full-scope MediCal to restricted MediCal because the County did not receive a completed MC13 Form.

On September 9, 2019, the County reverted to its original claim of $576 as to allegations of overpayment of CalFresh benefits.

On October 22, 2019, Garber attended an appeal hearing regarding DSS’ termination of Garber’s IHSS benefits for failure to provide current residence address. The County used this hearing to allege an over-issuance of CalFresh payments, which did not occur. At the hearing, the County specialist finally provided the MC13 Form.

On November 8, 2019, the County alleged it had overissued CalFresh benefits to Garber for the period between May and September 2019.

Garber seeks (1) compensatory damages of $150,000, (2) enhanced and punitive damages, (3) CalFresh monthly payments from January 2020 to October 2022, and (4) attorney’s fees.

On December 13, 2019, Garber served the County with the Petition and Summons by hand-delivery. On January 3, 2020, Garber personally served DSS with the Petition and Summons.

On March 3 and 10, 2020, Garber requested entry of default against DSS. Department T (Hon. Shelby Watkins) denied the request both times as incomplete and without a signature. Garber requested default against DSS again on March 13, 2020. The court granted the request.

On July 28, 2020, Department T overruled the County’s demurrer to the Petition.

The County moved to be recharacterized as a Real Party-in-Interest in this action. Department T denied the motion on November 3, 2020.

On October 29, 2020, Department T referred the case to Department 1 to determine if the case should be transferred to a department in Stanley Mosk Courthouse. Department 1 reassigned the case for all purposes to Department 85.

On December 28, 2020, Garber requested a court ruling that DSS had been in default since February 2020. On January 11, 2021, DSS requested that the court vacate entry of default.

On April 13, 2021, the court scheduled an Order to Show Cause (“OSC”) hearing Re: Dismissal for Failure to Appear on that day and Failure to Prosecute.

On September 23, 2021, Garber filed a request for a Trial Setting Conference (“TSC”) in writing. On September 24, 2021, the court made accommodations by promising to provide a Communication Access Realtime Translation Reporter at the next TSC.

On January 6, 2022, Garber requested a court order to compel the County to produce the transcripts of administrative hearings from November and December 2018 as relevant and material evidence. On January 10, 2022, the court informed Garber that he had the responsibility to obtain those transcripts from DSS.

On April 21, 2022, at the OSC hearing, the court ordered the case stayed for six months to allow Garber to appear in person when he is released from jail. The court lifted the stay on November 3, 2022, upon learning that Garber is no longer incarcerated.

Garber served the County and DSS with a request to disclose the transcripts of the hearings on December 13, 2018.

On November 17, 2022, the County filed a motion to declare Garber a vexatious litigant pursuant to CCP section 391.1. The court will hear this motion on January 12, 2023.

On November 21, 2022, the Court declined to relate Garber v. Rex Danyluk et al., 22STCV29054, with this case as the new case is an action for damages.

The administrative record includes the transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence and any other papers in the case. CCP §1094.6(c); Govt. Code §11523.

“The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881. The court can only admit additional evidence where the party seeking its inclusion shows (1) the evidence could not have been presented to the agency in the first instance in the exercise of reasonable diligence or (2) was improperly excluded. CCP §1094.5(e); Western States Petroleum Assn. v. Superior Court, (1995) 9 Cal.4th 559, 578 (“Western States”); Eureka Citizens for Responsible Govt. v. City of Eureka, (2007) 147 Cal.App.4th 357, 366.

The Code of Civil Procedure does not expressly provide for a motion to augment or correct the administrative record, but such motions are routinely made. See e.g., Pomona Valley Hospital Medical Center v. Superior Court, (1997) 55 Cal.App.4th 93, 101.

Petitioner Garber moves to augment the record with a transcript of a hearing that purportedly occurred on December 13, 2018.

A motion to augment the administrative record is a law and motion matter. CRC 3.1103(a)(1). All law and motion matters require a memorandum of points and authorities detailing the basis for the motion. CRC 3.1113(a). The absence of a memorandum may be construed as an admission that the motion is not meritorious. CRC 3.1113(a). Garber failed to file a supporting memorandum of points and authorities. Instead, he merely attached a declaration and exhibits to the motion. This alone is reason to deny the application.

Concerning the merits, the transcript of an administrative hearing at issue in a petition for a writ of mandate should be part of the record. CCP §1094.6(c). The certified record in this case does not include a December 13, 2018 hearing transcript. Garber Decl., ¶1, Ex. 1. Garber previously has objected to the absence of this transcript from the record, and he does not have the transcript now. Garber Decl., ¶4, Ex. 3. Garber cannot use a motion to augment as a discovery device to obtain a hearing transcript, and he cannot augment the administrative record with a document he does not have.

Moreover, the evidence shows that such a transcript does not exist because there was no hearing on December 13 ,2018. The County states that it is not the custodian of hearing transcripts and defers to DSS on the issue. County Opp. at 2. DSS provides evidence that the writ analyst for its Special Hearing Division (“SHD”) has searched without success for any transcript or evidence that Garber had a hearing on December 13, 2018. Olguin Decl., ¶¶ 1, 4.

In his reply declaration – again without memorandum – Garber cites to ALJ Chin’s December 21, 2018 decision to show that there was a hearing on December 13, 2018. Garber Reply Decl., ¶5, Ex. 4. ALJ Chin’s only reference to December 13, 2018 in his decision states that the County representative received Garber’s written response to documents from the State Hearings Division on that date. Ex. 4, p. 3. This reference does not suggest that a hearing occurred on that date.

[1] Petitioner’s reply declaration was filed one day late under CCP section 1005. Although the declaration has been considered, Petitioner is warned that untimely filings will not be considered for future hearings for this case.