Shor v. Department of Social Service

California Court of Appeal Jul 30, 1990 No. No. A047667Published

Before: White

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Holding. The court held that a criminal restitution order does not collaterally estop an administrative agency from seeking full recovery of welfare overpayments, as the restitution amount is based on a defendant's ability to pay rather than the total loss. Furthermore, the court held that arguments regarding waiver and equitable estoppel cannot be raised for the first time on appeal.

Issues

Whether a criminal restitution order collaterally estops an administrative agency from seeking full recovery of welfare overpayments.
Whether the district attorney waived the Department's right to seek full reimbursement through a plea bargain.
Whether claims of waiver and equitable estoppel may be raised for the first time on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The issue “necessarily decided” in the criminal proceeding was not “identical” to the issue litigated at the administrative proceeding.”

“In the criminal proceeding, the court did not determine how much Ms. Shor had been overpaid. Instead, the court “necessarily determined” the appropriate amount of restitution to be paid as a condition of probation.”

“Because she did not raise these arguments in the trial court, she may not raise them for the first time on appeal.”

Opinion

WHITE, P. J. Appellant Nancy Shor pled guilty to welfare fraud. She was ordered to pay $6,841.86 in restitution to the Department of Social Services (the Department) as a condition of probation. Subsequently, in an administrative proceeding, the Department concluded that Ms. Shor must repay the entire amount she wrongfully received ($21,919). Ms. Shor filed a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) in the superior court to overturn the Department’s decision. The petition was denied and Ms. Shor has appealed.

On appeal, Ms. Shor contends that the Department (1) is collaterally estopped from claiming more than $6,841.86 in restitution, and (2) waived any right to restitution above $6,841.86. We affirm the judgment.

Facts

From 1982 to 1986 Ms. Shor received $21,919 in aid to families with dependent children (AFDC) benefits. However, she was not entitled to those benefits because she had money in unreported bank accounts that exceeded the allowable $1,000 resource limit.

In January 1987 the Department notified Ms. Shor that she had been overpaid $21,919 and demanded payment of the entire sum. Ms. Shor requested an administrative hearing on the demand.

While the hearing was pending, Ms. Shor was charged in San Francisco County with perjury (Pen. Code, § 118, subd. (a)), unauthorized acquisition of food stamps (Welf. & Inst. Code, § 10980, subd. (g)), and welfare fraud (Welf. & Inst. Code, § 11483) based on her willful failure to disclose the bank accounts. As the result of a plea bargain, Ms. Shor pled guilty to a violation of Welfare and Institutions Code section 10980, subdivision (c)(2) (felony welfare fraud). The other charges were dismissed.

The trial judge imposed the punishment agreed upon by the district attorney and Ms. Shor: five years probation conditioned on Ms. Shor’s [73]payment of $6,841.86 in restitution to the Department and 100 hours of community service.

After Ms. Shor pled guilty to the criminal charge, she appeared at the administrative hearing on the Department’s demand for full reimbursement and argued that the Department was collaterally estopped from collecting more than the $6,841.86 in restitution imposed as a condition of probation. The administrative law judge agreed with this argument, but his decision was reversed by the Department director. The director found that the demand for repayment of $21,919 was “correct and must be sustained.”

Shor v. Department of Social Service

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