Zizzo v. Dept. of Housing and Community Development CA4/1 ( 2014 )

Filed 5/27/14 Zizzo v. Dept. of Housing and Community Development CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
STACI ZIZZO, D063563
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00052025-
CU-WM-NC)
DEPARTMENT OF HOUSING AND
COMMUNITY DEVELOPMENT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Jacqueline M. Stern, Judge. Affirmed.
Law Offices of Alan L. Mohill and Alan L. Mohill for Plaintiff and Appellant.
Thomas E. Montgomery, County Counsel, and James R. O'Day, Deputy County
Counsel, for Defendants and Respondents.
Stacie Zizzo (Zizzo) appeals from an adverse judgment on her petition for writ of
administrative mandamus against the Housing Authority of the County of San Diego
(HACSD) and other parties, in which she challenged HACSD's termination of the rental
assistance provided to her through the "Section 8" program (42 U.S.C. § 1437f et seq.).1
As we will explain, we conclude that Zizzo's appeal lacks merit, and we accordingly
affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
HACSD administers the Section 8 rental assistance program in unincorporated
areas of San Diego County.
In December 2009 Zizzo entered into an agreement with HACSD for Section 8
rental assistance for a house in Fallbrook (the House). The agreement listed Zizzo and
her six children as the residents of the House. The applicable federal regulations provide
for termination of Section 8 benefits based on, among other things, violations of "any
family obligations under the program." (24 C.F.R. § 982.552(c)(1)(i).) Included in the
program's "family obligations" are that "[t]he family must request . . . approval to add any
other family member as an occupant of the unit" (24 C.F.R. § 982.551(h)(2)) and "the
members of the household may not engage in drug-related criminal activity" (24 C.F.R.
§ 982.551(l)). Consistent with these regulations, Zizzo signed a statement
acknowledging that her Section 8 benefits could be terminated if, among other things, "I
or any household member engages in drug-related criminal activity," and "I or any
household member allows unauthorized person(s) to reside/stay in the subsidized unit."
1 "The federal government, through the 'Section 8' program, provides financial
assistance to low-income tenants. (42 U.S.C. § 1437f.)" (Wasatch Property
Management v. Degrate (2005) 35 Cal. 4th 1111, 1115.)
2
In August 2010, HACSD received information which led to an investigation of
whether Zizzo had violated her family obligations under the Section 8 program based on
(1) criminal drug-related activity at the House; and (2) the unauthorized residence of
Zizzo's mother and brother, Deborah and Joseph Zizzo, at the House.2
HACSD conducted a search of Department of Motor Vehicle (DMV) records for
Deborah and Joseph, both of which showed the House as their residence address.
Further, HACSD located records in which Joseph had recently given the House as his
address to probation officials. On August 18, 2010, a HACSD representative visited the
House and found Joseph sleeping there.
HACSD also obtained police records showing that Joseph was arrested on the
evening of August 10, 2010, inside the House for being under the influence of a
controlled substance. According to the arresting officer's description in the police report,
Joseph was an acknowledged heroin addict who admitted on August 10 to having used
heroin the previous day, and based on Joseph's physical condition on August 10, he
appeared to be under the influence of a controlled substance.3
2 Because we discuss several family members with the same last name as Zizzo, we
identify those individuals by their first names for the sake of brevity, and we intend no
disrespect by doing so.
3 Evidence was also presented in the course of the administrative proceedings of
other criminal drug-related activity at the House.
First, HACSD obtained police reports concerning two juveniles who were
detained in connection with the same investigation of drug activity at the House on
August 10, 2010. However, based on an objection by counsel for Zizzo at the
administrative hearing, the hearing officer did not consider the police reports regarding
3
On August 20, 2010, B.J. Glouden, an employee of HACSD, sent a notice to Zizzo
stating that HACSD was currently reviewing Zizzo's Section 8 housing benefits.
Glouden set a meeting with Zizzo on August 27 and asked Zizzo to bring verification of
residency for Joseph and Deborah and information about any arrests and police activity at
the House. At the meeting, Zizzo provided Deborah's cell phone bill and Deborah's bank
statement, both of which showed a mailing address for a business in Temecula, not a
residence. Zizzo also provided letters from (1) one of Deborah's daughters, stating that
Deborah had been living with that daughter in Temecula since late 2008; and
(2) someone claiming to have been Joseph's landlord at her property in Fallbrook since
November 2009, stating that Joseph receives his mail at her post office box in Bonsall.
Glouden was not satisfied that the materials provided by Zizzo established that
Deborah and Joseph were residing elsewhere, and she gave Zizzo an opportunity to
provide additional materials showing that Deborah and Joseph did not reside with her.
Glouden also requested that Deborah and Joseph file a change of address at the DMV and
the post office using their current residence address rather than the House. At a
follow-up meeting on September 3, 2010, the only additional materials Zizzo provided to
Glouden were change of address forms that Deborah and Joseph recently filed with the
the juveniles due to the confidentiality provisions in Welfare and Institutions Code
section 827.9.
Second, HACSD presented a police report for an incident involving an arrest of
Kyle Parrish in the driveway in front of the House for possession of a controlled
substance (methamphetamine) on July 5, 2010. Although HACSD presented evidence of
the arrest, it did not specifically rely on it to show drug-related criminal activity as a basis
for terminating Zizzo's Section 8 benefits. Instead, HACSD relied on Joseph's arrest.
4
post office, as Glouden had requested, but which did not provide a new residence address
for Deborah or Joseph. Instead, Deborah changed her address to a business address, and
Joseph changed his address to a post office box.
On September 28, 2010, Glouden gave Zizzo notice that HACSD was terminating
her Section 8 benefits effective October 31, 2010. The reasons given were (1) drug-
related criminal activity, in that Joseph was arrested at the House for being under the
influence of a controlled substance;4 and (2) unauthorized persons residing in the House,
as Joseph and Deborah were staying at the House and using it as their residence address.
Zizzo requested an informal hearing to challenge the decision to terminate her
Section 8 benefits. A hearing was held before hearing officer Anthony S. Deutsch on
November 17, 2010. Both HACSD and Zizzo were represented by counsel. Several
witnesses testified at the hearing.
Glouden testified about her conversations with Zizzo and presented the
documentary evidence described above showing the House as the address on Deborah
and Joseph's DMV records and Joseph's probation records. Glouden also described her
visit to the House on the morning of August 18, 2010, when Joseph was sleeping there.
The other witness called by HACSD was Arthur Doherty III, a San Diego Police
Department officer who lives across the street from the House. Counsel for Zizzo
4 As clarified at the administrative hearing, the notice of termination erroneously
stated that Joseph had been arrested on August 11, 2010 — which is the date of the police
report — instead of August 10, 2010, which was the date of the arrest described in the
police report.
5
objected to Doherty being called to testify because HACSD had not listed him as a
witness prior to the hearing. On the suggestion of counsel for HACSD, the hearing
officer asked whether counsel for Zizzo wanted the hearing to be continued to another
day because of the lack of notice of Doherty's testimony. Counsel for Zizzo declined the
continuance.
According to Doherty's testimony, Joseph told him in January 2010 that he lived at
the House. Doherty further testified that in August 2010, Zizzo told him that Joseph
lived in the House and asked for Doherty's help in getting Joseph off of the property
because Joseph was selling drugs there. Doherty also testified that he often saw
Deborah's vehicle at the House early in the morning and parked in the garage at night.
Zizzo introduced the testimony of Deborah, her son Adrian, and herself.
Deborah testified that she lives with a different daughter, but acknowledged that
she had stayed at the House two to three times a week since May 2010. Deborah was not
sure if she had stayed at the House more than 30 days over the last year. Deborah also
testified that she never gave the House as an address to the DMV and was surprised to
see that address on her DMV records. She also testified that Joseph did not live at the
House.
Zizzo's son, Adrian, testified that he was at the House on August 10, 2010, when
Joseph was arrested, and he observed the police "doing a bunch of drug tests" on Joseph.
Adrian stated that neither Joseph nor Deborah lived at the House.
Among other things, Zizzo testified that neither Deborah nor Joseph reside at the
House, but they stay there occasionally. Zizzo denied ever telling Doherty that Joseph
6
lived at the House or asking Doherty for assistance dealing with Joseph's drug-related
activities.
At the end of the hearing, the hearing officer asked counsel whether they had
ample opportunity to present their case and ask all relevant questions. Neither counsel
raised any objection.
The hearing officer issued a thorough and detailed 13-page written decision on
December 1, 2010, upholding the termination of Zizzo's Section 8 benefits. The hearing
officer concluded that HACSD established by a preponderance of the evidence that
Zizzo's participation in the Section 8 program should be terminated because Zizzo
"(1) engaged in drug-related criminal activity which includes criminal [activity] by a
family member or guest because Joseph Zizzo was arrested at the [House] for being
under the influence of a controlled substance, and (2) violated her family obligations by
allowing unauthorized persons, Joseph Zizzo and Deborah Zizzo, to reside with her and
allowing unauthorized persons, Joseph Zizzo and Deborah Zizzo, staying in her unit to
use her address as their residence address."
In March 2011, Zizzo filed a petition for writ of administrative mandamus (Code
Civ. Proc., § 1094.5) against the HACSD, Glouden, HACSD director David Estrella, and
hearing officer Deutsch.5 Zizzo sought an order requiring HACSD to set aside the
5 In her petition, Zizzo specifically proceeded against an entity she described as "the
public Housing Authority" by filing a petition with a caption identifying among the
respondents "Housing Authority of the County of San Diego, County of San Diego
Department of Housing and Community Development." To the extent Zizzo intended to
sue two separate entities (HACSD and County of San Diego Department of Housing and
7
termination of her Section 8 benefits. The petition alleged procedural unfairness in the
administrative hearing and contended that the evidence at the hearing did not support the
hearing officer's decision.
The parties submitted briefing on the petition to the trial court. Zizzo's briefing
included a request for judicial notice containing several documents not presented at the
administrative hearing, as well as a lodgment of non-California authorities, all of which
the trial court declined to consider. Zizzo attempted to file a late reply brief in the trial
court, which the trial court also declined to consider.
The trial court denied Zizzo's petition for writ of mandate. Applying its
independent judgment to the evidence in the administrative record, the trial court
explained at length that the hearing officer's decision was supported by the weight of the
evidence and rejected Zizzo's claims of procedural unfairness. Zizzo appeals from the
judgment.
II
DISCUSSION
A. Zizzo's Challenges to the Trial Court's Procedural Rulings
Zizzo focuses a significant portion of her appellate brief on the trial court's refusal
to consider (1) her reply brief; (2) her request for judicial notice; (3) documents
purportedly rejected by the administrative hearing officer; and (4) the lodgment of
non-California authorities. We consider those issues in turn.
Community Development), there was no substantive distinction between those entities
made during the litigation of this matter, and our reference to HACSD in the procedural
history of this litigation includes both entities.
8
1. Reply Brief
We first examine whether the trial court improperly refused to consider Zizzo's
late-filed reply brief.
We apply an abuse of discretion standard in reviewing the trial court's refusal to
consider late-filed briefing. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal. App. 4th 755, 765.)
"A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court
to refuse to consider papers served and filed beyond the deadline without a prior court
order finding good cause for late submission." (Bozzi, at p. 765.)
The trial court explained that it was refusing to consider Zizzo's reply brief
because it was filed beyond the deadline6 and was served by fax without a stipulation to
fax service, and because Zizzo's moving papers had also been filed one week late. The
reason given by Zizzo's counsel for the late filing of the reply brief was that "I was
moving my offices and the time got away from us." In declining to consider the late-filed
reply brief, the trial court explained that "the problem is that we set these dates for a
certain reason, and that is because we need the paperwork to review the paperwork."
The trial court was well within its discretion to decline to consider the reply brief.
Counsel showed a pattern of disregarding filing deadlines and did not have a compelling
excuse for the late filing, explaining instead that "time got away from us." Based on
6 The filing deadline for the reply brief was November 1, but it the brief was not
filed until November 5.
9
these facts, the trial court could reasonably decide that Zizzo failed to show good cause as
required for a late-filing under rule 3.1300(d).
Further, to succeed in obtaining a reversal of the judgment based on the trial
court's refusal to consider her reply brief, not only must Zizzo establish procedural error,
which she has failed to do; she must establish prejudice. (Reedy v. Bussell (2007) 148
Cal. App. 4th 1272, 1289; Code Civ. Proc., § 475.) Here, Zizzo failed to establish the
reasonable probability of a more favorable result had her reply brief been considered.
Zizzo had a full opportunity to address the relevant issues in her opening brief and at the
hearing in the trial court.
2. Request for Judicial Notice
Next, we consider whether the trial court erred in declining to consider the
documents presented in Zizzo's request for judicial notice. "We review the trial court's
ruling on the request for judicial notice for abuse of discretion." (Fontenot v. Wells
Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264.) Further, to the extent Zizzo's
request for judicial notice attempts to augment the administrative record, we review the
trial court's ruling on a motion to augment the administrative record for abuse of
discretion. (Evans v. City of San Jose (2005) 128 Cal. App. 4th 1123, 1143 (Evans);
Armondo v. Department of Motor Vehicles (1993) 15 Cal. App. 4th 1174, 1180.)
Zizzo sought judicial notice of the following documents: (1) excerpted pages from
HACSD's Administrative Plan for the Section 8 Housing Choice Voucher Program; (2) a
print-out from the Web site of the National Conflict Resolution Center listing government
training clients; (3) a page from HACSD's Family Handbook for the Section 8 program;
10
(4) a letter from an attorney at the office of the San Diego County Primary Public
Defender to the director of HACSD on the procedure for obtaining police reports
concerning juveniles; (5) a print-out from the Web site of the San Diego County Sheriff's
Department concerning the procedure for requesting a crime, arrest or accident report;
and (6) a vehicle registration renewal notice from the DMV addressed to Deborah at an
address in Fallbrook in 2009. There is no indication that any of the documents were
presented at the administrative hearing. HACSD objected to Zizzo's request to take
judicial notice.
"A fundamental rule of administrative law is that a court's review is confined to an
examination of the record before the administrative agency at the time it takes the action
being challenged." (Evans, supra, 128 Cal.App.4th at p. 1144.) In a limited exception to
this rule, Code of Civil Procedure section 1094.5, subdivision (e) provides that where, as
here, the trial court exercises its independent judgment in reviewing an administrative
decision and "finds that there is relevant evidence that, in the exercise of reasonable
diligence, could not have been produced or that was improperly excluded at the hearing
before respondent, . . . the court may admit the evidence at the hearing on the writ . . . ."
(Ibid.)
Here, the trial court determined that Zizzo's request for judicial notice did not
satisfy these requirements because Zizzo did not attempt to establish that the documents
at issue were either improperly excluded or could not have been produced.
The trial court's assessment of the situation was accurate and reasonable. Zizzo
did not attempt to satisfy the requirements of Code of Civil Procedure section 1094.5,
11
subdivision (e) by showing that the documents could not have been produced or were
wrongly excluded. Indeed, instead of citing Code of Civil Procedure section 1094.5,
subdivision (e), the only specific statutory ground for Zizzo's request for judicial notice
was Evidence Code section 452, subdivision (d), which permits a court to take judicial
notice of court records. However, none of the documents presented by Zizzo were court
records. The trial court was accordingly well within its discretion to deny the request for
judicial notice.
3. Documents Purportedly Not Admitted by the Administrative Hearing
Officer
Zizzo also contends that the trial court improperly rejected Zizzo's request to
supplement the administrative record by considering two documents purportedly
proffered by Zizzo at the hearing but purportedly not considered by the administrative
hearing officer: (1) a declaration signed by Deborah; and (2) a request for information
that Deborah submitted to the DMV to investigate how her address got changed to the
House address.
Applying Code of Civil Procedure section 1094.5, subdivision (e), the trial court
concluded that the administrative record should not be augmented with those exhibits
because they were not improperly excluded by the administrative hearing officer. As we
will explain, the trial court was within its discretion to make that decision.
First, because Deborah testified at the administrative hearing, the trial court was
within its discretion to conclude that the hearing officer properly excluded Deborah's
declaration. The hearing officer could reasonably conclude that Deborah's testimony was
12
preferable to her declaration, as it was live and subject to cross-examination. Indeed,
Deborah ended up testifying at length about the subjects in her declaration, and Zizzo has
not explained why her case would have benefitted from the admission of Deborah's
declaration when Deborah testified in person.
Second, with respect to the form that Deborah filed with the DMV requesting
information about her address change, we find no indication in the administrative record
that Zizzo ever proffered that document at the administrative hearing. The document was
mentioned by Deborah during her testimony, but Zizzo has not cited to any part of the
administrative hearing transcript where that document was offered by Zizzo as part of the
administrative record or rejected by the hearing officer. Further, because Deborah
testified about the request for information during her testimony, even if the document had
been improperly excluded, there was no prejudice to Zizzo in not being able to have the
document admitted into evidence at the hearing.
4. Lodgment of Non-California Authorities
Finally, Zizzo contends that the trial court erred in not considering the non-
California authorities that she lodged with the court. Although the trial court did not give
a reason for its decision to reject the non-California authorities, that decision was
reasonable. The non-California authorities were two cases from Minnesota appellate
courts (Liffrig v. Independent School Dist. No. 442 (Minn. 1980) 292 N.W.2d 726
(Liffrig); Dean v. Pelton (Minn.Ct.App. 1989) 437 N.W.2d 762 (Dean)); one case from a
Minnesota federal district court (Garthus v. Secretary of Health and Human Services
(D.Minn. 1993) 847 F. Supp. 675 (Garthus)); and one case from the federal Eighth Circuit
13
Court of Appeals (Cline v. Sullivan (8th Cir. 1991) 939 F.2d 560 (Cline)). None of the
cases concern Section 8 benefits. Instead, the cases arise in various unrelated contexts,7
and three of them are cited in Zizzo's trial court briefing about the responsibility of
administrative hearing officers to consider the evidence before them and make findings of
fact. One of the cases — Liffrig — is not cited in Zizzo's trial court briefing at all. Zizzo
could have cited California authorities on the same subject, which would have had
precedential value in the trial court, but she inexplicably failed to do so.8 As Zizzo
provided no reasonable explanation for her decision to cite case law from Minnesota and
the Eighth Circuit concerning the duties of administrative hearing officers, and the case
law has no precedential value in Zizzo's case (US Ecology, Inc. v. State (2005) 129
Cal. App. 4th 887, 905), the trial court was well within its discretion to decline to consider
it.
B. Substantial Evidence Supports the Trial Court's Decision
We next consider Zizzo's substantive challenge to trial court's ruling denying the
petition for writ of administrative mandamus.
7 Liffrig, supra, 292 N.W.2d 726, is about a school board's termination of a school
principal. Dean, supra, 437 N.W.2d 762 is about a trial court order modifying child
support. Garthus, supra, 847 F. Supp. 675 is about the denial of disability insurance
benefits. Cline, supra, 939 F.2d 560 is about the denial of supplemental Social Security
benefits.
8 We note also that Zizzo's briefing in the trial court cited two more Minnesota
authorities, but Zizzo did not attach those cases to her lodgment of non-California
authorities.
14
" 'Section 1094.5 of the Code of Civil Procedure governs judicial review by
administrative mandate of any final decision or order rendered by an administrative
agency. A trial court's review of an adjudicatory administrative decision is subject to two
possible standards of review depending upon the nature of the right involved. [Citation.]
If the administrative decision substantially affects a fundamental vested right, the trial
court must exercise its independent judgment on the evidence. [Citations.] The trial
court must not only examine the administrative record for errors of law, but must also
conduct an independent review of the entire record to determine whether the weight of
the evidence supports the administrative findings. [Citations.] If, on the other hand, the
administrative decision neither involves nor substantially affects a fundamental vested
right, the trial court's review is limited to determining whether the administrative findings
are supported by substantial evidence.' " (Saraswati v. County of San Diego (2011) 202
Cal. App. 4th 917, 926-927 (Saraswati).) The continued receipt of Section 8 benefits is a
fundamental vested right. (Frink v. Prod (1982) 31 Cal. 3d 166, 171 ["In administrative
mandamus actions to review decisions terminating welfare assistance, the trial court
exercises its independent judgment on the evidence."].) Accordingly, the trial court
conducted an independent review.
Our review on appeal is more limited. "When a trial court has applied an
independent judgment standard of review of an administrative decision, 'an appellate
court need only review the record to determine whether the trial court's findings are
supported by substantial evidence.' " (Saraswati, supra, 202 Cal.App.4th at p. 926,
fn. 7.)
15
Here, as we will explain, substantial evidence supports the trial court's finding that
Zizzo violated the family obligations, which justified HACSD's termination of Zizzo's
Section 8 benefits.
As an initial matter, we note that a central focus of Zizzo's argument is that the
trial court disregarded the evidence that she views as important and compelling. Zizzo
contends that the record contains evidence showing that both Doherty and Glouden were
biased against her. She also contends that the trial court should have credited the claim
of Zizzo's witnesses that Deborah and Joseph did not live with her, and that the trial court
should have resolved conflicts in the evidence by finding in her favor. We reject all of
these arguments because they misapprehend the role of the trial court in its independent
review of the record. The trial court was required to conduct an independent review of
the entire record, to exercise its independent judgment on the evidence, and to weigh the
evidence to determine whether it supports the administrative findings. (Saraswati, supra,
202 Cal.App.4th at pp. 926-927.) "[A]n exercise of independent judgment does permit
(indeed, it requires) the trial court to reweigh the evidence by examining the credibility of
witnesses." (Barber v. Long Beach Civil Service Com. (1996) 45 Cal. App. 4th 652, 658);
see also Candari v. Los Angeles Unified School Dist. (2011) 193 Cal. App. 4th 402, 408
["The trial court was permitted to draw its own reasonable inferences from the evidence
and make its own credibility determinations."].) " 'Where the evidence supports more
than one reasonable inference, we are not at liberty to substitute our deductions for those
of the trial court.' " (Candari, at p. 408.) Here, the trial court extensively reviewed the
evidence and expressly determined that Zizzo was not a credible witness. Although
16
Zizzo takes issue with these determinations, it is not our role to second guess the trial
court's credibility determinations or its decision on how to resolve conflicts in the
evidence.9
We now turn to a discussion of whether substantial evidence supports the trial
court's decision.
In support of its finding that Joseph was residing in the House, the trial court cited
the fact that (1) Joseph was arrested at the House; (2) Joseph used the House's address at
the DMV and with the probation department; and (3) Doherty testified that Zizzo said she
had to get Joseph out of the house.10 Those facts are supported by the administrative
record and reasonably support a finding that Joseph was residing in the House.
Therefore, the trial court's decision that Zizzo violated the family obligations by allowing
an unauthorized person to reside in the House is supported by substantial evidence.
The trial court's conclusion that Zizzo violated the prohibition on a resident of the
House engaging in drug-related criminal activity is also supported by substantial
evidence. As we have explained, the evidence shows that Joseph was a resident of the
9 Further, although Zizzo spends much of her briefing contending that Doherty and
Glouden were biased against her and unjustly framed her, most of Zizzo's discussion on
that topic is not supported by the evidence in the record. Instead, in support of her claims
that Doherty and Glouden unfairly targeted her, Zizzo relies solely on her own
allegations in the petition for writ of mandamus or her argument in the briefs she filed in
the trial court rather than to any evidence presented during the administrative hearing.
10 Although the hearing officer concluded that both Deborah and Joseph were
improperly residing in the House, the trial court limited its discussion to the evidence
supporting the hearing officer's findings regarding Joseph's unauthorized residence in the
House.
17
House, and police records show that Joseph was arrested on August 10, 2010, at the
House for being under the influence of a controlled substance, which constitutes drug-
related criminal activity.11 Further, Doherty testified that Zizzo told him that Joseph was
selling drugs from the House. The trial court was entitled to credit Doherty's testimony
and reject Zizzo's claim that no such conversation had occurred.12
C. Zizzo's Complaint About the Hearing Officer's Procedural Rulings
Zizzo's final focus on appeal is the claim that the hearing officer committed
several instances of procedural error that violated her right to receive a fair trial. (Code
Civ. Proc., § 1094.5, subd. (b) [one issue cognizable in a petition for administrative
mandamus is "whether there was a fair trial"].)
11 Zizzo contends that the trial court improperly ignored the testimony of Zizzo's son,
Adrian, who Zizzo claims to have testified that "Joseph was not under the influence when
he was arrested and that he was arrested despite passing multiple tests administered by
the arresting officer." Zizzo does not correctly describe Adrian's testimony, as Adrian did
not state that Joseph was not under the influence or that Joseph passed any tests
administered by the police. In support of this incorrect assertion about Adrian's
testimony, Zizzo cites to an incorrect assertion in her trial court brief rather than to the
administrative hearing transcript.
12 Zizzo also contends that the trial court's decision should be reversed because
HACSD did not consider "mitigating circumstances" in deciding whether to terminate her
Section 8 benefits. According to Zizzo, the mitigating circumstances were that she had
no prior rule violations in the Section 8 program and that Doherty purportedly harassed
and bullied her. This argument fails because there is no legal requirement that HACSD
consider mitigating circumstances in terminating Section 8 benefits. As the trial court
found, the evidence supported HACSD's decision to terminate Zizzo's benefits because
Zizzo failed to comply with the family obligations.
18
1. Arrest Records
Zizzo's first complaint about the hearing officer's handling of the administrative
hearing is that he improperly allowed HACSD to submit police records relating to drug
activity at the House. Specifically, Zizzo claims (1) that the arrest records relating to
juveniles were protected by the confidentiality provisions of Welfare and Institutions
Code section 827.9; and (2) the arrest records of Joseph and of Kyle Parrish should not
have been admitted because those individuals were not given notice that their arrest
records would be used in the administrative hearing. As we will explain, the trial court
properly rejected these allegations of procedural impropriety.
As the trial court pointed out, Zizzo's complaint about the hearing officer's
treatment of the juvenile arrest records is baseless because the hearing officer sustained
Zizzo's objection to the consideration of those records and specifically stated in his
decision that he was not considering the juvenile arrest records due to the confidentiality
provisions of Welfare and Institutions Code section 827.9.
Zizzo's contention that the adult arrest records should not be considered is
premised on a federal regulation providing that when a housing authority "proposes to
terminate assistance for criminal activity as shown by a criminal record, the [housing
authority] must notify the household of the proposed action to be based on the
information and must provide the subject of the record and the tenant with a copy of the
criminal record." (24 C.F.R. § 982.553(d)(2).) Zizzo contends that although she was
given copies of the arrest records, the subjects of the arrest records (Joseph and Parrish),
did not receive copies. The trial court rejected this argument on two grounds: (1) Zizzo
19
did not object to consideration of the arrest records based on a violation of the federal
regulation; and (2) Zizzo did not support her argument with competent evidence.
The trial court's resolution of the issue is well-founded. We find no indication in
the administrative record that Zizzo objected to the admission of Joseph's and Parrish's
arrest records based on violation of the federal regulation. Instead, the only objection that
Zizzo asserted was to Joseph's arrest record, based on relevancy. As Zizzo did not object
based on the federal regulation, she has no basis for contending that the hearing officer
failed to afford her a fair trial by failing to exclude the arrest records on that basis. (Cf.
Evid. Code, § 353, subd. (a) [court may reverse for erroneous admission of evidence only
if the party objected on the specific ground now asserted on appeal].) Moreover, as the
trial court observed, Zizzo submitted no evidence to show that HACSD failed to provide
Joseph and Parrish with copies of the arrest records. Indeed, because Zizzo did not object
during the administrative hearing based on the federal regulation, she presented no
evidence presented at the hearing concerning HACSD's purported non-compliance with
that regulation.
2. Allowing Glouden and Doherty to Testify
Zizzo contends that she was not afforded a fair hearing because Glouden and
Doherty were permitted to testify even though HACSD did not list them as witnesses
prior to the hearing.
In arguing that witnesses who were not previously identified by HACSD should
not have been permitted to testify, Zizzo relies on the notice of informal hearing that she
received from HACSD on October 27, 2010. That notice informed Zizzo that "[y]ou will
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be provided with the names of any witnesses that the Housing Authority anticipates
calling to the hearing to testify at least 7 days prior to the hearing" (emphasis omitted),
and stated that Zizzo also was required to identify her own witnesses seven days before
the hearing.
Regarding Glouden's testimony, as the trial court pointed out, Zizzo's claim of
procedural unfairness is without merit because Zizzo did not object to Glouden's
testimony at the hearing. Zizzo cannot complain about the admission of testimony that
she did not seek to exclude.
As to Doherty's testimony, Zizzo did object at the hearing to the admission of
Doherty's testimony on the grounds she asserts here. However, as the trial court pointed
out, Zizzo's claim of procedural unfairness fails because both the hearing officer and
counsel for HACSD responded to Zizzo's objection to Doherty's testimony by specifically
giving Zizzo the option to continue the hearing to a future date. Zizzo declined the offer
and decided to proceed.
3. Entrapment Claim Regarding Change of Address Forms
Zizzo claims that she was "entrapped" by HACSD into creating evidence to be
used against her, and that evidence accordingly should not have been admitted at the
administrative hearing. Specifically, Zizzo claims that Glouden entrapped her by
requesting that she have Deborah and Joseph file change of address forms forwarding
mail to their current residence to establish they weren't residing at the House. Zizzo
apparently believes that she was "entrapped" because the hearing officer relied on the
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change of address forms to conclude that Deborah and Joseph had been residing at the
House prior to filing the forms.
We reject Zizzo's claim of entrapment for two reasons. First, Zizzo did not object
to the admission of the change of address forms at the hearing. Therefore, she has no
reasonable ground to complain that the hearing officer improperly admitted them into
evidence. Second, the premise of Zizzo's argument is faulty because the hearing officer's
conclusion that Deborah and Joseph resided at the House was not based on the fact that
they filed the change of address forms. HACSD did not take the position that filing the
change of address forms constituted an admission by Deborah and Joseph that they had
been residing at the House. Indeed, Glouden's testimony at the hearing established that
Zizzo obtained the change of address forms only because Glouden requested that she do
so and not because Deborah and Joseph admitted that they resided at the House.13
4. Other Purported Conflicts/Improper Conduct by Hearing Officer
Zizzo claims that "[t]here was . . . an improper ex parte conference between
[HACSD's] attorney and the hearing officer behind closed doors immediately prior the
hearing." We reject this argument because Zizzo cites no evidentiary support for it.
Instead, Zizzo refers only to an argument in her trial court briefing, which, in turn, also
fails to cite any evidentiary support.
13 As explained by Glouden, the significance to her of the change of address forms
was that Deborah and Joseph were not able to specify on those forms another residence
where they claimed to be living, but instead gave the forwarding address of a post office
box and a business.
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Zizzo also contends that the hearing officer had a conflict of interest because he
was purportedly associated with the National Conflict Resolution Center, which Zizzo
claims to have some connection to HACSD. As the trial court pointed out, there is no
evidence in the record to support the factual basis for Zizzo's argument.14 We reject
Zizzo's argument on that basis.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
14 One of the items attached to Zizzo's request for judicial notice is apparently related
to Zizzo's claim that the hearing officer had a conflict of interest. Specifically, Zizzo
requested judicial notice of a page from the National Conflict Resolution Center's Web
site listing "San Diego Housing Commission" as a "government training client." As we
have explained, the trial court properly declined to take judicial notice of that document.
However, even if that document was a part of the record, it would not establish any
conflict of interest. Among other things, the most fundamental factual predicate for
Zizzo's argument is lacking because she has not established any connection between the
hearing officer and the National Conflict Resolution Center.
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