Judge James C. Chalfant, Case 19VECP00553 2023-03-09 Tentative Ruling

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

Tentative decision on petition for writ of mandate: denied

Petitioner Robert Garber (“Garber”) seeks a writ of administrative mandate compelling Respondents County of Los Angeles (“County”) and Department of Social Services (“DSS”) to reinstate him to the CalFresh program and pay him monthly benefits withheld from January 2020 to October 2022.

The court has read and considered the moving papers, opposition, reply, and reply addenda, and renders the following tentative decision.

Petitioner Garber filed this proceeding in pro per on December 12, 2019 against Respondents County and DSS. The operative pleading is the First Amended Petition (“FAP”), filed on November 3, 2022 and alleging claims for (1) fraud and (2) reinstatement of CalFresh benefits. (Because the FAP consists of amended pages from the Petition, the court will consider both to be operative and shall refer to them collectively as the “FAP”.) The FAP alleges in pertinent part as follows.

On November 14, 2017, Garber first applied to the CalFresh Program. DSS granted the application conditioned on his 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 recycling income: $180 or $200.

On July 19, 2018, in retaliation for his position, the County’s welfare agency in San Fernando Valley stopped Garber’s CalFresh benefits, effective July 13, 2018. It then rescinded the termination on July 27, 2018 to “as otherwise eligible”, authorizing monthly payments of $192 for August and September 2018.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 a MC13 form titled “Statement of Citizenship, Alienage and Immigration Status” (“MC13 form”). The County representative at the hearing did not have the MC13 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’s action to discontinue CalFresh aid pending, effective September 30, 2018, could not be sustained because Garber had filed a timely request for hearing. The County was ordered to issue CalFresh monthly aid 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 he made no finding 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 stated that it 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 an administrative 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 his CalFresh coverage. The County changed Garber’s 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’s termination of Garber’s In-Home Supportive Services (“IHSS”) benefits for failure to provide his current residence address. The County used this hearing to falsely allege an over-issuance of CalFresh payments. At the hearing, the County specialist finally provided the MC13 form.

On November 8, 2019, the County alleged that 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, and (3) CalFresh monthly payments from January 2020 to October 2022.

On December 13, 2019, Garber served the County with the Petition and Summons by hand-delivery. On January 3, 2020, Garber 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 both requests. 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. Department T denied the motion on November 3, 2020.

On October 29, 2020, Department T referred the case to Department 1 to determine if it should be transferred to a writs department in the Stanley Mosk Courthouse. Department 1 reassigned the case 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”). On September 24, 2021, the court made accommodations for Garber by agreeing to provide a Communication Access Realtime Translation (“CART”) reporter at the next TSC.

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

At an April 21, 2022 OSC hearing, the court ordered the case stayed for six months to allow Garber to appear in person after he was released from jail. The court lifted the stay on November 3, 2022, after 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 21, 2022, the court declined to relate Garber v. Rex Danyluk et al., 22STCV29054 as that case is an action for damages that cannot be heard in Dept. 85.

On December 13, 2022, the court denied Garber’s motion to augment the record with a transcript of a hearing that purportedly occurred on December 13, 2018 and that Garber did not possess.

On January 12, 2023, the court denied the portion of the County’s motion to compel Garber to post a $70,000 bond as a vexatious litigant, but also sua sponte issued a prefiling order precluding Garber from filing any new litigation in state court in pro per without first obtaining leave from the presiding judge in the county where the proposed litigation is to be filed.

Code of Civil Procedure (“CCP”) section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 51415. The pertinent issues under section 1094.5 are (1) whether the respondent has proceeded without jurisdiction, (2) whether there was a fair trial, and (3) whether there was a prejudicial abuse of discretion. CCP §1094.5(b). An abuse of discretion is established if the respondent 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(c).

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. Because public benefits concern a fundamental vested right, the superior court must exercise its independent judgment. Id. at 143.

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.” Id. at 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. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 101316. However, “[i]n 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, supra, 20 Cal.4th at 817.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 51415. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 515.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The Supplemental Nutrition Assistance Program (“SNAP”) is a federal program that provides nutrition benefits, previously referred to as food stamps, to individuals who meet program eligibility requirements. 7 U.S.C. §§ 2011 et seq.

California’s CalFresh program enables low-income California households to receive federal SNAP benefits. Welfare & Institutions Code (“W&I Code”) §§ 18900.1, 18900.2. CalFresh is governed by W&I Code section 18900 et seq. DSS supervises and administers the CalFresh program implemented by county welfare agencies through the DSS Manual of Policies and Procedures (“MPP”) section 63-000 et seq., All County Letters, and All County Informational Notices. W&I Code §§ 10613, 18901.1, 18901.15.

No person is eligible to participate in SNAP unless the person is a United States (“U.S.”) citizen, a non-citizen national, a qualifying American Indian, a qualifying Hmong or Highland Laotian tribe member or family of the member, or an alien who meets specific requirements. 7 C.F.R. §273.4(a). DSS’s MPP also distinguishes between the type of noncitizens who are qualified and those that are not. MPP §§ 63-405.11, 63-405.12. The Child Welfare Division (“CWD”) shall limit participation in the program to individuals who are either United States citizens or eligible non-citizens. MPP §63-405. An eligible non-citizen is a lawful resident of the U.S. and is either a “qualified non-citizen” or a non-citizen of indefinite eligibility. MPP §63-405.1. A qualified non-citizen must be lawfully admitted to the U.S. under the Immigration and Nationality Act for permanent residence, a refugee, an asylee, or a non-citizen who has had deportation withheld. MPP §63-405.11. A non-citizen with indefinite food stamp eligibility criteria must meet one of six specific criteria. MPP §63-405.12.

Based on a CalFresh application, the CWD shall determine if members identified as non-citizens are eligible noncitizens by requiring that the household present verification for each non-citizen member. MPP §63-300(e)(2).

As of November 13, 2018, Garber was a 77-year-old male and purchased food and prepared meals as a household of one. AR 40.

On November 3, 2017, Garber applied for CalFresh benefits. AR 40. On November 14, 2017, County employee Latasha Toliver conducted a face-to-face interview with Garber. AR 10. She recorded that, although Garber reported that he has satisfactory immigration status, he could not provide documentation to prove it. AR 10. DSS granted an “EXCF” until his “SAVE” was received so the County could determine further eligibility. AR 10. Apparently, the EXCF reference meant that Garber was given CalFresh benefits pending his immigration status verification. See AR 3.

In May 2018, the County issued a Notice of Action (“NOA”) terminating Garber’s CalFresh benefits. See AR 5.

On May 12, 2018, Garber requested an administrative hearing to contest the termination, alleging that the County had terminated his benefits in retaliation for a letter he had send to its welfare department, and also that DSS did not deliver a notice of termination. AR 5.

On June 7, 2018, the County sent Garber a Request for Verification of his current citizenship status for his CalFresh benefits, to be provided by June 19, 2018. AR 79.

Garber’s first CalFresh administrative hearing occurred on June 12, 2018. AR 19. Garber asserted that the County stopped his CalFresh benefits after he wrote a “cantankerous” letter concerning his income from recycling. AR 31. When he visited the office on May 11, 2018 after his CalFresh was stopped, the County claimed the termination was instead about his citizenship. AR 31. He was sent a letter the next day talking about citizenship with part of the form whited out and changed. AR 32. The County had tampered with evidence. AR 32.

The ALJ informed Garber that the County’s notes from November 2017, which said that although Garber reported that he has satisfactory immigration status, he could not provide documentation to prove it. AR 33. This was before the recycling issue arose. AR 33. Before the County can determine eligibility, it must determine citizenship. AR 34. The point from the beginning was that the County was waiting for evidence of Garber’s immigration status. AR 35.

Garber said he wanted a chance to provide his proof of citizenship. AR 34. The ALJ said that he would order the County to contact him and give him time to prove his status. AR 35. No other issue was relevant until then. AR 35-36.

On July 6, 2018, the ALJ issued a decision from the June 2018 hearing. AR 2. The decision stated that the County shall reevaluate Garber’s CalFresh eligibility, effective May 1, 2018, and provide any lost benefits. AR 3.

The ALJ found that the County approved Garber’s November 3, 2017 application for CalFresh benefits pending immigration status verification. AR 3. The County did not take any further action until April 5, 2018. AR 3. On that day, a review of Garber’s application determined that it was incomplete because he still had not provided proof of his immigration status. AR 3.

State law requires that the eligibility of all benefits be determined based on federal law. AR 3. CalFresh program participants must be U.S. citizens or eligible non-citizens. AR 3. The County welfare department shall provide non-citizen applicants with a reasonable opportunity – defined as at least ten days -- to submit acceptable documentation of their non-citizen status by the 30^th day following the date of application. AR 4. If the County fails to do so, it must begin benefits within 30 days of any application that meets all other requirements. AR 4.

The County agreed to allow Garber to submit verification of his immigration status. AR 4. His claim was granted to this extent, and the ALJ required the County to reevaluate Garber’s CalFresh eligibility, effective May 1, 2018, and provide any lost benefits. AR 4. The decision was adopted as final on July 6, 2018. AR 2.

On July 9, 2018, the County sent Garber another Request for Verification of his current citizenship status from INS for his CalFresh benefits. AR 82.

The County also sent a NOA informing Garber of the pertinent CalFresh history. AR 85. The County asked Garber to verify his immigration status upon his November 3, 2017 application. AR 85. The County discontinued the CalFresh benefits on May 1, 2018 because Garber failed to do so. AR 85. Garber appealed and the County continued to issue him CalFresh benefits through July 2018. AR 85. The County requested verification of his immigration status a second time on June 7, 2018 and Garber failed to comply. AR 85. The July 9, 2018 request was a third and final request for verification of Garber’s immigration status. AR 85. If he did not do so by July 19, 2018, the County would discontinue his CalFresh benefits, effective July 31, 2018. AR 85.

On July 10, 2018, the County sent a NOA reminding Garber to send verification of his immigration status by July 19, 2018. AR 87. The County would then reevaluate his CalFresh eligibility, effective May 1, 2018. AR 87. If he did not provide documents, the County would discontinue his CalFresh benefits, effective July 31, 2018. AR 87.

On July 16, 2018, Garber submitted a Health and Human Services Agency (“HHS”) Statement of Citizenship, Alienage, and Immigration Status for Medi-Cal benefits. AR 53-55. He acknowledged that he is not a citizen and instead is an alien Permanently Residing in the U.S. Under Color of Law (“PRUCOL”). AR 53. Of the 16 listed categories, he asserted that he was both an alien who properly filed an application for lawful permanent resident status and an alien that does not otherwise qualify but can show that the Immigration and Naturalization Service (“INS”) knows that he is in the country and does not intend to deport him. AR 54. He provided his alien admission number and social security number. AR 54.

On July 19, 2018, the County issued two NOAs terminating Garber’s CalFresh benefits, effective July 31, 2018. AR 89, 91. Both asserted that Garber had not provided verification of his immigration status, so the County could not reevaluate his case. AR 89.

On July 27, 2018, the County issued a NOA stating that, in compliance with the ALJ’s decision, the County had reevaluated Garber’s CalFresh eligibility as of May 1, 2018 and rescinded the termination effective on that date. AR 93. As the County had previously issued benefits for May to July 2018, it now did so for August and September 2018 as well. AR 93.

On August 17, 2018, the County sent Garber a new Request for Verification of his current citizenship status from INS for his CalFresh benefits by August 28, 2018. AR 95. On August 28, 2018, the County sent another Request for Verification that extended the deadline to September 10, 2018. AR 98.

On September 19, 2018, the County issued a NOA terminating Garber’s CalFresh benefits, effective September 30, 2018. AR 61. It asserted that Garber had not provided verification of citizenship or other eligibility as an alien. AR 61.

On September 25, 2018, Garber requested an administrative hearing to contest the revocation of his CalFresh benefits. AR 47. He asserted that two County employees had engaged in months of harassment over the verification he had provided months earlier. AR 47.

On November 13, 2018, the County’s Statement of Position asserted that it had complied with the ALJ’s decision from the June 2018 hearing. AR 57-58. The County mailed requests for verification to Garber on June 7 and July 9, 2018. AR 58. Again, Garber failed to provide the verification necessary to reevaluate his eligibility, so the County notified him that it was unable to reevaluate his continued eligibility for CalFresh. AR 58.

On July 27, 2018, the County gave notice that, in accordance with the ALJ’s decision, the County had reinstated his CalFresh benefits. AR 58. The County then mailed two additional requests for verification in August 2018. AR 58. Garber failed to respond to both. AR 58.

County records show that in 2014 and 2015 Garber provided some documentation as to his immigration status. AR 58. This documentation did not establish him as an eligible non-citizen. AR 58.

Garber’s second CalFresh administrative hearing occurred on November 13, 2018 before ALJ Don Shinn (“Shinn”). AR 169. Garber disputed that he failed to submit his immigration documents. AR 173.

Garber testified that he received all the Requests for Verification and sent a Statement of Alienation and Citizenship form in response. AR 187, 189. (He presented a copy of this form to the ALJ at the hearing, who noted that the form was from the HHS. AR 189, 191. ALJ Shinn provided the County representative with a copy. AR 192.)

Garber testified that his Medi-Cal and IHSS benefits were approved, although there still were snags and he was supposed to have an IHSS hearing that same day. AR !93. The CalFresh program should be a derivative of the process for Medi-Cal, as the W&I Code says that an alien is only eligible for Medi-Cal if lawfully admitted for payment and residence or otherwise permanently residing in the country under the color of law. AR 197-98.

County representative Jessica Chaidez (“Chaidez”) testified that there was no indication that Garber provided the verification necessary to reevaluate his eligibility, even after multiple notices. AR 177. The documents that he submitted just showed that he came into the country in 1984 on a tourist visa. AR 179. A search on the state’s system shows nothing that verifies he is a permanent resident or a U.S. citizen. AR 179. The County could run a search on a state database, Systematic Alien Verification Entitlement (“SAVE”), which comes from the INS, to confirm. AR 184, 191.

Chaidez testified that Garber’s Statement of Alienation and Citizenship form was submitted to Medi-Cal and, while she has access to Medi-Cal forms, she did not get a copy of it on this case. AR 192. ALJ Shinn copied the form for Chaidez and asked how long it would take to determine whether there was any other documentation provided by Garber to Medi-Cal or IHSS. AR 195. Chaidez replied that Medi-Cal does not require any additional verification from someone who claims to be here under PRUCOL like Garber. AR 195.

8. Post-Hearing Communication Concerning the Evidence That Would Be Considered

On November 15, 2018, ALJ Shinn notified the parties that he would provide both parties with all evidence submitted by either party. AR 51. Because the County stated that Garber had no right to receive them, the ALJ discarded the INQE-Other Client Eligibility Information that the County had provided, and he also rescinded his request for a document from the SAVE database. AR 51. ALJ Shinn notified the County that it had until November 27, 2018 to submit any documents from his IHSS file related to Garber’s eligibility as a qualified immigrant. AR 51-52.

On December 21, 2018, ALJ Shinn issued a proposed decision for the November 2018 hearing that sustained County’s discontinuation of CalFresh benefits. AR 39-40.

The decision noted that the parties had stipulated at the June 2018 hearing that the County would allow Garber to submit verifying documents for his immigration status so the County could reassess his CalFresh application. AR 40.

The County representative testified that the County mailed Garber a form requesting documents that verify his status. AR 40-41. Garber never provided documents that verify that he is a US citizen or has eligible immigration status. AR 41. The representative testified that a document from one of the state’s databases shows that Garber is an undocumented immigrant. AR 41. The County testified that, because Garber is a Medi-Cal recipient, any immigrant status-related documents in his Medi-Cal file would be in his CalFresh file. AR 41.

Garber testified that he submitted documents to the County on three occasions: (1) a DHCS form on July 16, 2018; (2) a Form I-485 from December 29, 2014; (3) a notice of rejection for that application dated January 13, 2015; and (4) his passport. AR 41. Garber believed that County workers discriminated against him because of his national origin and Judaism. AR 41. If it approved his Medi-Cal benefits, it must already have all the documents to assess his CalFresh application. AR 41.

On November 15, 2018, ALJ Shinn sent both parties a November 15, 2018 letter that asked the County for documents from Garber’s IHSS file. The County never provided any documents from Garber’s IHSS file but did provide a printout from the SAVE database that showed a document expiration date of 1994. AR 42.

Due to a clerical error, the ALJ did not provide Garber with the printout until December 6, 2018. AR 42. On December 13, 2018, Garber provided a response asserting that he never received the November 15, 2018 letter. AR 42. He called the County after the hearing and was told that the County had provided a document to ALJ Shinn but he (Garber) was not entitled to it. AR 42. Garber asserted that the SAVE printout supports his assertion that there is a conspiracy to block him from benefits to which he is entitled because his Medi-Cal benefits should have been terminated if the County did not have the printout. AR 42.

ALJ Shinn noted that County must provide aid pending at the previously authorized level upon the filing of a timely hearing request unless the household’s certification has expired. AR 44. Garber’s 24-month certification did not expire before October 2019 and he contested the NOA discontinuing his benefits three days before it went into effect on September 30, 2018. AR 45. The County could not discontinue aid effective September 30, 2018 because Garber had filed a timely request for hearing and the 24-month certification period had not expired. The County was required to pay Garber aid paid pending in the amount of $192, effective October 1, 2018. AR 45.

For CalFresh eligibility, non-citizens must meet certain requirements. AR 45. The County must require that a household present verification that its members fall under one of the categories in MPP section 63-405.11. AR 45. The household must have a reasonable opportunity to present such evidence. AR 45.

On May 12, 2018, the County sent Garber a NOA to discontinue his benefits because it never received documents verifying his immigration status. AR 45. After the June 2018 hearing, the County stipulated to receiving his verifying documents and reevaluating his application. AR 45. On both June 7 and July 9, 2018, the County mailed Garber a form requesting documents that verify he is a United States citizen or has eligible immigration status. AR 45. The County sent informational notices on July 9 and 10, 2018 about its attempts to obtain these documents. AR 45.

On July 19, 2018, the County sent two NOAs to discontinue Garber’s benefits, effective July 31, 2018. AR 45. On July 27, 2018, it rescinded this decision through September in compliance with the first ALJ decision. AR 45. Twice in August 2018, the County mailed the form that requested documents that verify Garber is a U.S. citizen or has eligible immigration status. AR 45. The County never received such documents. AR 45.

The County gave Garber a reasonable opportunity to provide the necessary proof of citizenship or immigration status. AR 45. The County waited three months before issuing its September 19, 2018 NOA discontinuing CalFresh benefits. AR 45. The County does not have the burden to prove Garber is an unqualified immigrant. AR 46. The County provided some testimony and a printout regarding Garber’s immigration status, but the ALJ need not decide that issue. AR 46.

Garber’s claim that the County must have all the necessary documents for CalFresh if it his Medi-Cal application was approved fails. AR 46. The requirements for Medi-Cal differ from the requirements for CalFresh. AR 46. The County reviewed the documents on file from 2014 or 2015 relevant to Garber’s immigration status, and also reviewed Garber’s IHSS file. AR 46. Despite the County’s due diligence, none of the files reflected Garber’s eligible immigration status. AR 46.

The ALJ sustained the County’s discontinuance of Garber’s CalFresh benefits because the County provided a reasonable opportunity and sufficient notice to submit documents verifying citizenship or immigration status and Garber did not do so. AR 46. The ALJ referred any complaints of discrimination to DSS’s Civil Rights Bureau for investigation. AR 44, 46. The ALJ reversed the County’s discontinuance of aid paid pending beginning October 1, 2018. AR 46.

On January 14, 2019, Garber filed a request for reconsideration. AR 126-33. He again alleged that he provided the necessary documents and that there was a conspiracy to discriminate against him. AR 128. He also stated that IHSS terminated his Medi-Cal benefits on October 15, 2018 for failure to provide the required information to continue his eligibility. AR 128.

On September 24, 2019, DSS denied Garber’s request. AR 166. DSS listed the eligible immigrants who are eligible for SNAP, and therefore CalFresh, pursuant to 7 C.F.R section 273.4(a)(3). AR 166. DSS noted that, unlike CalWORKs and Medicaid, CalFresh and SNAP do not include PRUCOL as an eligible category of immigration status. AR 166. The request for reconsideration included new evidence that would not have changed the outcome of the case because they do not prove his status. AR 166. Any issues raised as to Medi-Cal, the MC13 form, and IHSS were beyond the scope of the hearing and had to be part of a new hearing. AR 167.

Petitioner Garber seeks reinstatement of his CalFresh benefits. He also seeks payments from January 2020 through October 2022, and in his reply addenda seeks to recover an IRS payment that was applied to CalFresh overpayments.

In a petitioner’s opening brief or a respondent’s opposition, the statement of facts must be followed by an appropriate citation to the administrative record. LASC 3.231(i)(2). A party’s failure to comply with this requirement is an admission that the memorandum is not meritorious. See Quantum Cooking Concepts, Inc. v. LV Associates, Inc., (2011) 197 Cal.App.4^th 927, 931, 934 (where memorandum was defective, court has no obligation to search the record “backwards and forwards to try to figure out how the law applies to the facts”).

The parties are also obligated to lay out the evidence favorable to the other side and show why it is lacking. When a petitioner challenges an administrative decision as unsupported by substantial evidence in light of the record as a whole, it is the petitioner’s burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. The "[f]ailure to do so is fata to any substantial evidence challenge and "is deemed a concession that the evidence supports the findings." Defend the Bay v. City of Irvine, (2004) 11928 Cal.App.4th 1261, 1266. The reviewing court should "not independently review the record to make up for appellant's failure to carry his burden." Ibid.

These requirements are contained in LASC 3.231(i), and the court also expressly informed the parties of them at the November 3, 2022 TSC. As the opposition notes (Opp. at 6-7), Garber failed to file an opening brief that complied with these requirements. Instead, he filed a one-page document that incorporated his initial Complaint and its exhibits as his opening brief. This is improper for several reasons. First, the Complaint does not cite to the AR. Second, the Complaint attaches exhibits that are not included in the AR. Third, a party may not satisfy his obligations in a brief by incorporating another document by reference.

These procedural defects are an admission that the FAP lacks merit. As the opposition contends (Opp. at 7), Garber is an experienced pro per who was notified by the court at the TSC of the expectations for his opening brief. The court cannot treat a pro per any differently than it would treat a lawyer. The FAP’s administrative mandamus claim must be denied as procedurally defective.

Even if, arguendo, Garber’s administrative mandamus claim were not denied as procedurally defective, it would be denied on the merits. Garber was required to present verification that he fell under one of the categories in MPP section 63-405.11 and the County was required to give him a reasonable opportunity to present such evidence. AR 45. An independent review of the evidence shows that the County initially provided Garber with CalFresh benefits pending his submission of immigration status documentation showing eligibility for the program and that Garber never submitted adequate documentation despite numerous opportunities to do so.

On May 12, 2018, the County sent Garber a NOA to discontinue his benefits because it never received documents verifying his immigration status. AR 45. After the June 2018 hearing, the County stipulated to receiving his verifying documents and reevaluating his application. AR 45. On both June 7 and July 9, 2018, the County mailed Garber a form requesting documents that verify he is a U.S. citizen or has eligible immigration status. AR 45. The County sent informational notices on July 9 and 10, 2018 about its attempts to obtain these documents. AR 45. Twice in August 2018, the County mailed a form requesting documents that verify Garber is a U.S. citizen or has eligible immigration status. AR 45.

The County gave Garber a reasonable opportunity to provide the necessary proof of citizenship or immigration status. AR 45. The County waited three months after the June 2018 hearing before discontinuing his CalFresh benefits. AR 45. Garber’s opportunity to provide these documents was more than reasonable.

Garber’s FAP relies on several insubstantial arguments. First, he contends that he submitted the MC13 form, the Statement of Alienation and Citizenship, at the November 2018 hearing and Chaidez was given a copy. FAP, p. 3.[2] He notes that the County did not submit any additional documents from Garber’s IHSS file. FAP, p. 4. IHSS subsequently terminated his benefits on October 22, 2019. FAP, p. 5. Finally, he notes that Medi-Cal changed his benefits from restricted to full scope on July 1, 2019 because he was able to show “U.S. citizenship or satisfactory immigration status.” FAP, p. 6.

As the opposition notes, this case is not about Medi-Cal or IHSS benefits. Opp. at 2, n.1. More important, Garber’s Medi-Cal form MC13 does not show eligibility for CalFresh (SNAP). They have different requirements, and Garber was informed of this fact by DSS’s decision rejecting reconsideration of his appeal. Immigrants are eligible for SNAP, and therefore CalFresh, pursuant to 7 C.F.R section 273.4(a)(3). AR 166. Garber’s MC13 form may have shown eligibility for Medi-Cal because he was PRUCOL, but DSS noted that, unlike CalWORKs and Medicaid, CalFresh and SNAP do not include PRUCOL as an eligible category of immigration status. AR 166.

Garber has not rebutted this conclusion. He argues that Medi-Cal, IHSS, and CalFresh are all linked by the MC13 form, and he notes that an alien is eligible for full scope Medi-Cal benefits only if lawfully admitted for permanent residence or is PRUCOL. W&I Code §14007.5(b). Similarly, an alien is eligible for public assistance aid only to the extent permitted by federal law and is only eligible if lawfully admitted for permanent residence or otherwise PRUCOL. W& I Code §11104. FAP pp. 6-7.

As already stated, different programs have different requirements. The fact that PRUCOL may satisfy eligibility for Medi-Cal or general public assistance aid does not mean that it satisfies CalFresh (SNAP). The governing federal regulation (7 C.F.R. §273.4(a)) and DSS’s MPP list the eligibility requirements for non-citizens, and they must be a lawful resident of the U.S. and either a “qualified non-citizen” or a non-citizen of indefinite eligibility. MPP §§ 63-405.1, 63-405.12. PRUCOL status is not listed in either.

Finally, Garber argues that ALJ Shinn wrongly stated that he did not have to decide if Garber was an unqualified immigrant. FAP, p. 4. Garber misunderstands ALJ Shinn’s point, which was that Garber has the burden to prove that he is a qualified immigrant. The County does not have the burden to prove that he is an unqualified immigrant. AR 46. While the County provided some testimony that Garber is, in fact, not legally in the United States and therefore unqualified (AR 41), ALJ Shinn stated that he need not decide that issue. AR 46. In effect, ALJ Shinn was saying that Garber did not meet his burden of showing that he is an eligible non-citizen.

In sum, an independent review of the evidence shows that the ALJ’s conclusion that Garber failed to show his eligibility for CalFresh despite having had a reasonable opportunity to do so.

The administrative mandamus claim in the FAP is denied. As Garber still has a fraud claim for damages, the matter is transferred to Dept. 1 for reassignment to an I/C court.

[1] Garber cites the FAP and its exhibits as his opening brief and attaches more exhibits to his reply and two addenda. Because extra-record evidence is inadmissible, the court has considered only FAP exhibits that are in the Administrative Record (“AR”).

[2] Garber claims the November 2018 hearing was continued to December 13, 2018 but the court already has addressed the issue in denying his motion to augment. ALJ Shinn’s December 21, 2018 proposed decision also clearly demonstrates that no December 13, 2018 hearing was held.