Motion to Correct/Augment the Record (Judge James C. Chalfant)

Case Number:?BS171774????Hearing Date:?June 21, 2018????Dept:?85

Sandra Obando v. Housing Authority of the City of Los Angeles, BS 171774

Tentative decision on motion to correct/augment the record: denied

Respondent Housing Authority of the City of Los Angeles (?HACLA?) moves to augment the administrative record.??The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

  1. Statement of the Case
  2. Petition

Petitioner Sandra Obando (?Obando?) commenced this proceeding on December 6, 2017.??The Petition alleges in pertinent part as follows.

  1. Background

Obando is recently-widowed 65-year-old woman with multiple disabilities including depression and mobility impairments.??She currently resides alone in HACLA?s San Fernando Gardens public housing project.

In 1982, Obando and her husband began living at the San Fernando Gardens public housing project.??For 23 years, HACLA recognized Obando and her husband as joint heads of household.

In 2005, Obando left the unit.??During this time, Obando?s granddaughter and son, Misur Obando (?Misur?), came to the housing project to provide Obando?s husband with medical care and daily living assistance.

In 2009, Obando permanently returned to the housing project.??Obando?s understanding was that she was returning as a co-head of household.??Instead, however, HACLA listed Obando as a ?household member.?

In 2010, Obando understood that HACLA approved Misur as a non-resident caregiver for Obando?s husband.

In 2012, one of Obando?s neighbors filed a police report against Misur.??Misur was not arrested.??In 2015, Misur was convicted of assaulting one of Obando?s neighbors.

On February 3, 2017, Obando?s husband died.??For a two to three-week period after Obando?s death, Misur stayed with Obando to provide her with assistance; he did not permanently move in.??After Misur left, Obando lived alone in the apartment.

In March 2017, HACLA informed Obando that she must complete an application to become ?head of household.???In response, Obando informed HACLA that Social Security was recalculating her income and that she would submit an application with updated information pertaining to her income.

  1. The Notice to Quit

On May 1, 2017, HACLA served Obando with a 30-Day Notice to Quit (?Notice?) the apartment.??HACLA convened an informal hearing for Obando on the Notice.??At the hearing, Obando provided HACLA with an application to become head of household.??On the application, Obando mistakenly indicated that no household member required a reasonable accommodation.??She listed herself as the sole resident of the apartment.

On May 31, 2017, HACLA formally withdrew the Notice pending the outcome of Obando?s application.??HACLA denied Obando?s application on June 14, 2017 based on the assertion that a guest disturbed Obando?s neighbors and that Misur was living at the unit.

  1. Informal Hearing

HACLA conducted an informal hearing for Obando concerning the denial.??HACLA issued an informal hearing decision letter upholding the denial of Obando?s application.??HACLA alleged two incidents in which Misur disturbed other residents.??HACLA also cited a probation compliance for Misur listing Obando?s unit as his residence.

  1. The Formal Appeal Hearing

On August 10, 2017, HACLA held a formal hearing on Obando?s appeal.??Obando mistakenly believed that the hearing would only address her delay in submitting the application and requested a continuance when she learned from the hearing officer that the hearing regarded the substance of her application?s denial.??The hearing officer denied the continuance.

At the hearing, HACLA did not present any direct evidence or testimony in support of its allegation that Misur lived with Obando.?Instead, HACLA relied exclusively on hearsay.??HACLA?s only evidence that Obando?s tenancy would disturb her neighbors consisted of Misur?s two past alleged altercations which had occurred two and five years prior to the hearing.

At the hearing, Obando requested reasonable accommodations in two respects.??First, she requested that HACLA consider that Misur stayed in the apartment because Obando needed disability-related support in the aftermath of her husband?s death.??Second, she requested that her granddaughter be approved as a caregiver so that Misur would not need to return to the apartment to provide her care.

On September 7, 2017, the hearing officer issued a formal hearing decision denying Obando?s request to become ?head of household? and thus terminating her right to remain in her home.??The hearing officer concluded that Misur interfered with other tenants? rights to enjoy their property and that Obando had provided incorrect information to HACLA by not listing Misur as a resident in her application.

  1. The Petition

The Petition alleges a cause of action for writ of administrative mandate.??Obando alleges that the hearing officer prejudicially abused his discretion by (1) denying her request for a continuance, (2) failing to address or consider her reasonable accommodation requests, (3) ignoring state and federal laws requiring reasonable accommodations for people with disabilities, (4) concluding that HACLA complied with HUD rules and regulations regarding reasonable accommodations and anti-discrimination, (5) relying on HACLA admission criteria, rather than eviction criteria, in determining whether Obando would be approved as ?head of household,? (6) concluding that HACLA complied with HUD rules regarding definitions of ?residents? and ?household members,? and (7) making findings based exclusively on hearsay.

Obando also alleges that the hearing officer?s findings are not supported by the weight of the evidence on the following issues: (1) whether Misur lives in the unit and will continue doing so, (2) whether Obando misrepresented her status on the application as the only resident, and (3) whether Obando?s continued tenancy would be damaging to the health, safety, and welfare of others.??The hearing officer also failed to bridge the analytic gap between the evidence and the decision.

  1. Applicable Law

For the judicial review of a state agency decision made after hearing governed by the Administrative Procedures Act (?APA?), the ?complete record of proceedings? shall be prepared.??Govt. Code ?11523.??The complete record consists of ?the pleadings, all notices and orders issued by the agency, any proposed decision by an administrative law judge, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence and any other papers in the case.???Id.

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 in limited circumstances.??Specifically, extra-record evidence may be considered only if it is shown that (1) the evidence could not with reasonable diligence have been presented at the administrative hearing, or (2) was improperly excluded at that hearing.??CCP ?1094.5(e);?Fairfield v. Superior Court of Solano County, (1975) 14 Cal. 3d 768, 771-72;?see?Western States Petroleum Association v. Superior Court, (?Western States?) (1995) 9 Cal.4th 559, 578.??In addition, extra-record evidence is admissible only if it relevant.??Western States,?supra, 9 Cal.4th at 570.

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

  1. Analysis

Respondent HACLA seeks to augment or correct the administrative record with (1) Misur?s criminal records (Mot. at 5) and (2) documents relating to the reasons why HACLA did not designate Obando as ?head of household? following her husband?s death.??Mot. at 7.

  1. Criminal Records

HACLA contends that Misur?s criminal records should be included in the administrative record because the informal and formal review decisions establish that the decision-makers considered and weighed this evidence in formulating their decisions.??Mot. at 8. This is an argument that the administrative record should be corrected, not augmented.

The informal review decision upheld HACLA?s denial of Obando?s application in which she requested to be designated as ?head of household.???Stark Decl. Ex. A.??The informal review decision explains that HACLA denied Obando?s application in part ?because of the disturbance to her neighbors on several occasions by members and or guests of her family.???Id.??The informal review decision states in pertinent part:

Disturbances on record are:

  • On January 4, 2012, Misur was accused by Yolanda Gutierrez, resident of San Fernando Gardens of pushing her which caused her to fall to the ground and when she was on the ground Misur threw a can of beer which struck her on the head.
  • On January 9, 2012, a police report was filed concerning Misur?s criminal threats against Yolanda Gutierrez.
  • On August 15, 2015, Misur beat up Domingo Paniagua, resident of San Fernando Gardens causing Mr. Paniagua to be admitted to the hospital.??Stark Decl. Ex. A

The hearing officer presiding over Obando?s formal hearing was fully aware of Misur?s criminal misconduct by way of testimony as well as tenant file materials.??Tapia Decl.??The hearing officer avers that this information was available to all parties because both sides presented evidence on this subject at the formal hearing.??Id.

HACLA?s contention is unpersuasive.??As Obando points out (Opp. at 3-4), the law on this subject is clear: ?papers in the files of the administrative tribunal but not introduced into evidence may not be considered.???La Prade v. Department of Water and Power of City of Los Angeles, (1945) 27 Cal.2d 47, 53.??Obando?s attorney declares (and HACLA does not refute) that this evidence was not presented at the formal or informal hearing.??Reyes Decl. ?11.??As a result, this evidence cannot be included in the record.??The hearing officer?s declaration does not disturb this conclusion.??The presentation of testimonial evidence on a subject is different than the admission of underlying records into evidence.??See?Pinheiro v. Civil Service Commission, (2016) 245 Cal.App.4th?1458, 1469 (hearing officer?s review of transcript from prior hearing was denial of fair hearing).

  1. Documents Related to Tenant Status

HACLA asserts that the administrative record should be augmented with documents concerning tenant status because Obando?s Petition claims relating to her tenant status were never raised in the formal hearing and HACLA had no need to submit documentation to rebut this argument.??Mot. at 8.??HACLA?s assertion proceeds on the CCP section 1094.5(e) theory that it could not have presented this evidence in the exercise of reasonable diligence because it did not know such evidence was needed.

HACLA?s assertion is unconvincing.??Obando presents evidence that this issue was raised in her request for a formal hearing.??Opp. at 9; Reyes Decl. Ex. 1, p.5.??Assuming the issue was never addressed at the formal hearing, HACLA has legal recourse to defeat it by alleging her failure to exhaust administrative remedies.

  1. Independent Review

HACLA relies on CCP section 1094.5(e)?s language that the court may admit evidence in a case with an independent judgment standard of judicial review.??Mot. at 8-9.??But the condition for a court to consider extra-record evidence is that it was either excluded at the administrative hearing or could not have been presented in the exercise of due diligence.??Neither condition is met here.

  1. Conclusion

HACLA?s motion to correct or augment the record is denied.