Curiel v. Dept. of Social Services CA3

Filed 3/21/16 Curiel v. Dept. of Social Services CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

YVONNE CURIEL,

Plaintiff and Appellant, C074523

v. (Super. Ct. No. 34201180000810CUWMGDS) DEPARTMENT OF SOCIAL SERVICES,

Defendant and Respondent.

Defendant Department of Social Services (the department) revoked the child day care license of plaintiff Yvonne Curiel1 because it found, after an administrative hearing, that a child in her care was spanked and Curiel made false statements about it to an investigator. Curiel has consistently claimed she never struck the child. The trial court denied Curiel’s petition for a writ of administrative mandamus after it concluded the findings and conclusions of the administrative law judge were supported by the weight of

1 The administrative record spells Curiel’s first name “Ivonne,” consistent with her testimony at the administrative hearing. We adopt the spelling used by the trial court.

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the evidence. The trial court also found the department did not abuse its discretion by imposing the penalty of license revocation. Curiel now contends (1) the trial court erred in considering a new theory -- that Curiel had fraudulently altered attendance logs -- which was not asserted at the administrative hearing; (2) the trial court erred in applying a “technical” rule of admissibility set forth in the Evidence Code, rather than a “broad” rule of admissibility set forth in the Administrative Procedure Act, to conclude that the administrative law judge did not err in excluding evidence of investigator bias; and (3) the trial court concluded Curiel’s punishment was not excessive by incorrectly considering the new theory -- that Curiel had fraudulently altered attendance logs -- which was not asserted at the administrative hearing. Finding no error or abuse of discretion, we will affirm the judgment. BACKGROUND The department licensed Curiel in 1997 to operate a family child care home in San Francisco. Health and Safety Code section 1596.8852 provides that the department may revoke a child day care license for the following reasons, among others: “(a) Violation by the licensee, registrant, or holder of a special permit of this act or of the rules and regulations promulgated under this act. “(b) Aiding, abetting, or permitting the violating of this act or of the rules and regulations promulgated under this act. “(c) Conduct which is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility or the people of this state.” (§ 1596.885, subds. (a), (b), (c).)