Judge Mary H. Strobel, Case 21STCP03944 2022-08-23 Tentative Ruling

Respondents Kim Johnson, in her official capacity as Director of California Department of Social Services and California Department of Social Services (“Respondents”) move for judgment on the pleadings as to Petitioner Mae Nelson’s (“Petitioner”) second cause of action for writ of ordinary mandate.

“California Legislature enacted Assembly Bill No. 12 (‘AB 12’) to extend support in the form of foster care benefits to nonminor foster youth and former foster youth between the ages of eighteen and twenty-one who are actively working towards completing secondary or post-secondary education or attaining employment. The Legislature conferred on local welfare agencies the duty to explain the requirements of eligibility to potential applicants and help eligible young people and their guardians secure the maximum amount of benefits to which they are entitled.” (Pet. ¶ 1.)

“Respondent California Department of Social Services (‘CDSS’) and its local agency, the Los Angeles County Department of Children and Family Services (‘DCFS’), are doing the exact opposite. Instead of helping eligible nonminors and their families receive funding they are entitled to by law, DCFS impermissibly narrows statutory criteria of eligibility to deny the funding to these families. DCFS then further confuses the applicants with contradictory, outdated and irrelevant information pertaining to the reasons for the denial of benefits to the point where the applicants cannot assess whether they have a valid claim for appeal.” (Id. ¶ 2.)

“Petitioner Mae Nelson (‘Ms. Nelson’) has spent over five years fighting for the right to receive extended foster care benefits under AB 12 for her former foster child, Trey. Although Trey clearly met statutory eligibility requirements for the benefits, DCFS unlawfully halted Trey’s benefits after Trey turned eighteen, providing confusing and contradictory explanations for this decision to Ms. Nelson. Eventually, Trey managed to have prospective benefits reinstated and provided DCFS with evidence of his uninterrupted eligibility, but DCFS still refused to pay retroactive benefits to Ms. Nelson for the period between April 1, 2016 and December 27, 2018.” (Id. ¶ 3.)

In Fair Hearing Decision No. 104578866, “Administrative Law Judge Mariam Kaviani (‘ALJ’) at CDSS’s State Hearings Division upheld DCFS’s unlawful denial of retroactive benefits to Ms. Nelson in a decision which violated Ms. Nelson’s due process rights, ignored evidence submitted by Ms. Nelson and disregarded CDSS’s own policies and procedures which required the ALJ to develop evidence and interpret applicable regulations in a manner which protects the claimant’s right to a hearing.” (Id. ¶ 4; see Id. ¶¶ 45-54.)

Respondent Kim Johnson, in her official capacity as Director of California Department of Social Services, adopted Fair Hearing Decision No. 104578866 as the final administrative decision. (Id. ¶ 49.)

In the first cause of action for writ of administrative mandate, Petitioner alleges that “Respondent Johnson prejudicially abused her discretion and proceeded in a manner not authorized by law in adopting Fair Hearing Decision No. 104578866, because the ALJ’s Decision is based on material legal and factual errors, as set forth above and herein.” (Id. ¶ 49.) Specifically, Petitioner contends that the ALJ prejudicially abused her discretion as follows:

· “First, the ALJ abused her discretion by raising sua sponte an issue of jurisdiction and thereby proceeding in a manner not authorized by law….” (Id. ¶ 50.)

· “Second, the ALJ abused her discretion by finding she lacked jurisdiction, when such a finding was not supported by the evidence….” (Id. ¶ 51.)

· “Third, the ALJ abused her discretion by concluding that, even if she had jurisdiction, Ms. Nelson would be ineligible for the retroactive funding. Again, this conclusion was not supported by evidence. Ms. Nelson presented evidence that Trey was at all times enrolled in school, employed or actively looking for a job. Thus, he met the criteria for funding set forth in WIC section 11403(b)….” (Id. ¶ 52.)

· “Fourth, the ALJ abused her discretion and proceeded in a manner not authorized by law by failing to analyze the elements of Ms. Nelson’s equitable estoppel claim….” (Id. ¶ 53.)

· “Fifth, the ALJ abused her discretion and proceeded in a manner not authorized by law by failing to develop the evidence needed to make a fair ruling in accordance with the affirmative duty imposed by MPP 22-050.1 and 22.050.11….” (Id. ¶ 54.)

Petitioner seeks a writ of administrative mandate directing Respondents to set aside Fair Hearing Decision No. 104578866 and pay Petitioner retroactively for the period from April 1, 2016, until December 27, 2018. (Prayer ¶ 1.)

In the second cause of action for writ of ordinary mandate, Petitioner alleges that “Respondents have a ministerial and nondiscretionary duty to administer the EFC [extended foster care] program and public benefits programs in accordance with the law.” (Id. ¶ 56.) The Petitioner references “Respondents’ policy of acquiescence in failing to proceed in the manner required by law, improperly ignoring evidence and neglecting to develop the record as statutorily required, and absolving applicable departments or agencies from performing their mandatory duties under WIC sections 10500, 11004, 11403 and 11405 (as reflected in Respondent Johnson’s adoption of the ALJ’s decision in Fair Hearing Decision No. 104578866).” (Id. ¶ 61.)

In the second cause of action, Petitioner seeks a writ of ordinary mandate directing Respondent California Department of Social Services (“CDSS”) and its agents to:

a. Comply with California law and cease engaging in any policies or practices that would subject nonminors potentially eligible for EFC funding to additional criteria for establishing eligibility not statutorily required under AB 12, including any standards of consistency in school attendance and diligence in job search.

b. Comply with WIC section 10500 by requiring DCFS and all applicable county welfare departments to “perform [their] duties in such manner as to secure for every person the amount of aid to which he is entitled”;

c. Issue written notification to DCFS and all applicable county welfare departments, informing them that:

i. the county welfare department must assess nonminors’ eligibility for EFC funding under AB 12 as required by WIC section 11403(b), interpreting this section broadly in favor of eligibility;

ii. the county welfare department must inform a potentially eligible nonminor and his/her legal guardian in writing of the criteria of eligibility for EFC funding under AB 12 before the nonminor turns eighteen in accordance with WIC section 11004(a); and

iii. if the nonminor appears ineligible for EFC funding upon turning eighteen, provide both the nonminor and his/her legal guardian with a written notice citing to the applicable sections of the WIC, stating which of the eligibility criteria the nonminor has not met, what evidence supports this finding, and steps the nonminor needs to take in order to cure the stated deficiency and become eligible for the funding.

d. Instruct DCFS and all applicable county welfare departments to assess or reassess eligibility for retroactive EFC funding of all potential nonminor claimants who did not receive EFC funding for all or part of the period between the ages of eighteen and twenty-one and who

i. were not informed in writing of the criteria of eligibility of EFC funding before the claimant turned eighteen; or

ii. did not receive, at the time when the determination of ineligibility was made, a written notice satisfying the criteria listed in section 2(c)(iii) above.

On December 2, 2021, Petitioner filed a verified petition for (1) writ of administrative mandate pursuant to CCP section 1094.5; and (2) writ of ordinary mandate pursuant to CCP section 1085.

On July 21, 2022, Respondents filed this motion for judgment on the pleadings (“MJOP”) and a meet and confer declaration. The court has received Petitioner’s opposition and Respondents’ reply.

A motion for judgment on the pleadings involves the same type of procedures that apply to a general demurrer. (Burnett v. Chimney Sweep (2004) 123 Cal. App. 4th 1057, 1064.) An MJOP tests the sufficiency of a pleading, and the grounds for MJOP must appear on the face of the pleading or from judicially noticeable matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4^th 1, 5.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

The allegations in the petition must be liberally construed in favor of Petitioner on demurrer or MJOP. (Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.) A demurrer or MJOP accepts as true “all material facts properly pleaded and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact.” (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal. App. 4th 531, 538.) “A demurrer must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

Respondents contend that writ of administrative mandate is Petitioner’s exclusive remedy to seek review of Fair Hearing Decision No. 104578866, and that Petitioner has not pleaded facts to support a cause of action for ordinary mandate. The court agrees.

There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where … the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.” (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)

Here, to the extent Petitioner challenges Fair Hearing Decision No. 104578866, her exclusive remedy is in administrative mandate. (Welf. & Inst. Code § 10962 [petition under CCP section 1094.5 “shall be the exclusive remedy available to the applicant, recipient, or respondent, or county for review of the department's decision.”].)

However, “section 1094.5 does not preclude a broader challenge to agency conduct or procedures alleged to breach the agency's statutory obligations.” (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 752.) In a proper case, “[i]t is not inconsistent to award relief under both sections 1094.5 and 1085 of the Code of Civil Procedure.” (Ibid.)

The Court of Appeal has held that a trial court erred in refusing to grant ordinary mandate in a case where “the only controversy is the validity of the Department's and the County's legal interpretation of the relevant eligibility requirements.” (Timmons v. McMahon (1991) 235 Cal.App.3d 512, 517-518.) The Court determined that “the Department's policy of granting AFDC-FC eligibility to permanent but not temporary nonrelated guardians is in violation of governing statutes.” (Ibid.) The Court held that the “Director, as the official charged with administering the laws pertaining to the AFDC-FC program, has a present duty to ensure that the Department's eligibility policy with respect to nonrelated guardians is corrected so that benefits are not withheld from otherwise eligible applicants because of this status feature.” (Ibid.) Thus, the Court held that the trial court erred by not issuing a writ of ordinary mandate, in addition to a writ of administrative mandate. (Ibid.)

In the instant case, Petitioner cites several ministerial duties owed by Respondents, including to “explain the requirements of eligibility to potential applicants and help eligible young people and their guardians secure the maximum amount of benefits to which they are entitled” and “administer the EFC program and public benefits programs in accordance with the law.” (Oppo. 5 and Pet., ¶¶ 1, 20, 21, 56.) In addition, “CDSS’s Manual of Policies and Procedures (‘MPP’) prescribes that DCFS [Los Angeles County Department of Children and Family Services] must assist benefit recipients in understanding their rights and responsibilities in relation to application for aid; evaluate their capacity to discharge their responsibilities; and assist them as needed in establishing their eligibility and helping them to realize the maximum personal independence of which they are capable.” (Pet. ¶ 26.)[1]

Petitioner contends that she “alleges Respondents’ failure to comply with their duties as a matter of policy – not only in her specific case.” (Oppo. 5, citing Pet. ¶¶ 57, 61-63.) However, the cited paragraphs of the petition do not support that assertion. Petitioner cites the following paragraphs:

· “57. At all times, Respondents have had and continue to have the legal ability to perform their above-referenced statutory and regulatory duties in accordance with California law, but they have failed and/or refused to comply with such duties.”

· “61. Respondents’ policy of acquiescence in failing to proceed in the manner required by law, improperly ignoring evidence and neglecting to develop the record as statutorily required, and absolving applicable departments or agencies from performing their mandatory duties under WIC sections 10500, 11004, 11403 and 11405 (as reflected in Respondent Johnson’s adoption of the ALJ’s decision in Fair Hearing Decision No. 104578866), is contrary to California law and Respondents’ duties.”

· “62. DCFS’s policy of refusal to comply with its duties as CDSS’s agent is a clear violation of California law that must be rectified to prevent a miscarriage of justice in the administration of California’s EFC program. (See, e.g., WIC, § 10500.) Eligible nonminors and their legal guardians should not be deprived of EFC benefits to which they are otherwise entitled because CDSS and responsible agencies refuse to comply with their statutory duties and related regulations.”

· “63. Respondents’ adoption of the ALJ’s Decision in this case evinces a refusal to require CDSS’s agents to comply with their statutory duties and/or an impermissible promulgation of an invalid policy in derogation of Respondents’ own above-mentioned duties to ensure that the EFC program is administered in accordance with the law and to ensure that recipients of, or applicants for, public benefits secure the benefits to which they are entitled. (See, e.g., WIC, §10500, 10600.) As such, the Decision cannot be left standing.” (Id. ¶¶ 57, 61-63.)

Paragraph 57 is simply a legal conclusion and insufficient to state a claim. A demurrer or MJOP accepts as true “all material facts properly pleaded and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact.” (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal. App. 4th 531, 538.)

Paragraphs 61 and 62 do not specifically allege that CDSS or its agent DCFS have a policy, pattern or practice of violating specific statutory duties. Rather, these paragraphs reference “Respondents’ policy” and allege generally that CDSS, or its agent DCFS, have policies to not comply with the law and cite Respondent Johnson’s adoption of Fair Hearing Decision No. 104578866 as evidence of such policy. These generalized allegations are insufficient to state a claim for ordinary mandate. Petitioner does not allege that Respondents have any specific policies, practices, or procedures to not comply with the law. For instance, Petitioner does not allege that Respondents have a written policy or ongoing practice to interpret section 11403(b) in the same manner that the ALJ allegedly misinterpreted the statute. (Pet. ¶¶ 28, 52.) It is also unclear from these paragraphs which specific statutory or regulatory duties Petitioner contends that Respondents violate as a matter of policy or practice.

While Petitioner cites to Fair Hearing Decision No. 104578866 as evidence of a policy, reference to that single decision is not sufficient to allege an ongoing policy, practice, or procedure that would justify a writ of ordinary mandate. As summarized in the first cause of action, Petitioner challenges Fair Hearing Decision No. 104578866 on the following grounds (1) the ALJ sua sponte raised a jurisdictional issue pertaining to Petitioner; (2) the ALJ’s jurisdictional analysis was “not supported by the evidence”; (3) the ALJ’s alternative conclusion that Petitioner was ineligible for retroactive funding “was not supported by evidence” and was based on a misinterpretation of statutory language in Welfare and Institutions Code section 11403(b); (4) the ALJ failed to analyze a specific equitable estoppel claim raised by Petitioner; and (5) the ALJ failed to develop “the evidence needed to make a fair ruling in accordance with the affirmative duty imposed by MPP 22-050.1 and 22.050.11” and improperly denied Petitioner’s request for rehearing to present additional evidence. (Pet. ¶¶ 50-54.)

As pleaded, these alleged errors appear to pertain to factual or legal issues unique to Petitioner. For instance, the ALJ’s ruling on a jurisdictional issue sua sponte, and allegedly without sufficient evidence, and her alleged failure to analyze Petitioner’s equitable estoppel claim presumably relate to circumstances unique to Petitioner. Such errors, even if adopted by Respondents in a final decision, do not reflect a broader policy of Respondents to refuse to comply with the law.

Petitioner also alleges that “[t]he ALJ’s conclusion that Trey did not meet the statutory requirements because his school attendance was allegedly inconsistent and he was ‘lazy’ in his job search is contrary to the plain language of Section 11403(b) which requires only that the nonminor be ‘completing’ secondary education or an equivalent program and ‘participating’ in an activity to promote employment.” (Pet. ¶ 41.) As Respondents note, Petitioner challenges Respondents’ allegedly erroneous legal interpretation of “completing secondary education” to mean “attending school.” (Reply 4, citing Pet. ¶¶ 28, 41; Welf. & Inst. Code, § 11403(b).) However, Petitioner does not allege any ultimate facts suggesting that Respondents have a policy or ongoing practice to violate section 11403(b) in the manner alleged. Reference to Respondent Johnson’s adoption of a single administrative decision is not sufficient to allege a policy or practice to violate section 11403(b).

Petitioner alleges that “MPP 22-050.1 and 22.050.11 imposed upon the ALJ an affirmative duty to develop the evidence needed to make a fair ruling.” (Pet. ¶ 43.) Petitioner alleges that the ALJ failed to comply with this duty and that Respondents adopted the ALJ’s decision. However, Petitioner does not allege any ultimate facts suggesting that Respondents have a policy or practice to adopt ALJ decisions that violate the procedures in MPP 22-050.1 and 22.050.11.

Based on the foregoing, Petitioner has not alleged sufficient facts to state a cause of action for ordinary mandate.

A demurrer or MJOP may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Courts generally allow at least one opportunity to amend a complaint after sustaining a demurrer. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303.)

Petitioner requests leave to amend and this is the court’s first ruling on a demurrer or MJOP challenging the petition. The court will grant leave to amend.

[1] The petition refers to DCFS as a “local agency” of Respondent CDSS. (Pet. ¶¶ 2, 10.) The petition also alleges that “DCFS is CDSS’s agent for the administration of foster care-related services in Los Angeles County.” (Id. ¶ 7.) Those allegations must be accepted as true for purposes of MJOP.