Mokatish
v.
Fairfield Hous. Auth.

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWOApr 14, 2017
A143857 (Cal. Ct. App. Apr. 14, 2017)

A143857

04-14-2017

MAGID MOKATISH, Plaintiff and Appellant, v. FAIRFIELD HOUSING AUTHORITY, Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCS044331)

Appellant Magid Mokatish has received Section 8 housing voucher assistance from respondent Fairfield Housing Authority (FHA) since 1998. In 2004, Mokatish was convicted of a violation of Penal Code section 288, subdivision (c)(1) (section 288(c)(1)), committing a lewd or lascivious act upon a child of 14 or 15 years by a person at least 10 years older than the child. It is undisputed that he was incarcerated for more than 180 days, and required to register as a sex offender. After completing his sentence, he returned to the family's home and periodically completed recertification forms for the FHA indicating that he was convicted of a crime and was a registered sex offender. Many years passed. In 2013, Mokatish sent a letter to the FHA asking for a "reasonable accommodation" due to disability hardship, again identifying himself as a registered sex offender. Shortly thereafter, the FHA proposed termination of Mokatish's housing assistance; Mokatish requested a hearing, and after an informal hearing, the hearing officer upheld the termination.

Mokatish petitioned for a writ of administrative mandate. The trial court denied the petition, finding the FHA properly terminated Mokatish's housing assistance on the ground his conviction qualified as "violent criminal activity" for purposes of the Section 8 program. We conclude no substantial evidence supports this finding. We also reject the FHA's proposed alternative ground for terminating Mokatish's housing assistance. Accordingly, we reverse.

SECTION 8 HOUSING ASSISTANCE

The Section 8 program "is funded by the United States Department of Housing and Urban Development (HUD) to provide rental assistance to senior citizens, disabled or handicapped persons and very low income tenants. HUD channels money to [state or local] housing authorities, provides technical assistance and training, and monitors housing authority compliance with program requirements and goals. Rather than being provided with a specific unit at a subsidized housing site, Section 8 participant-tenants receive vouchers to contract for housing with participating landlords." (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2006) 136 Cal.App.4th 119, 122-123.) In Section 8 parlance, the local entity that administers the program is called the public housing agency or PHA. (24 C.F.R. § 982.1(a)(1).) The FHA is the public housing agency in this case.

HUD regulations set "obligations of a participant family under the program" (family obligations), and a public housing agency "may at any time . . . terminate program assistance for a participant" for violation of a family obligation. (24 C.F.R. §§ 982.551, 982.552(c)(1)(i).) Among other things, the family obligations prohibit members of the household from "engag[ing] in [1] drug-related criminal activity or [2] violent criminal activity or [3] other criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises." (24 C.F.R. § 982.551(l), italics added.) (Note the family obligations prohibit three specific types of criminal conduct; it is not the case that any criminal activity is a ground for termination.) In addition, the family obligations require the family to "promptly notify the PHA if any family member no longer resides in the unit" and to "promptly notify the PHA of absence from the unit." (24 C.F.R. § 982.551(h)(3) & (i).)

FACTUAL AND PROCEDURAL BACKGROUND

On August 1, 2013, Mokatish wrote to the FHA requesting a "reasonable accommodation," on account of the fact that he and his wife were disabled, and he had been unable to rent a suitable home "in part due to my registration requirements." Mokatish attached a copy of a letter from a property management company, which indicated that his rental application had been denied because of unsatisfactory credit and "Registered Sex Offender."

Mokatish's letter brought the fact that he was a registered sex offender to the FHA's attention. The Fairfield Police Department confirmed Mokatish was arrested in February 2004 and convicted in May 2004 of a violation of section 288(c)(1). The FHA decided to terminate Mokatish's Section 8 housing assistance.

First Proposed Termination of Assistance

By letter dated August 19, 2013, the FHA gave Mokatish notice of its "proposed termination of housing choice voucher assistance" (first notice). The letter provided two grounds for termination. First, Mokatish's "arrest and conviction was while receiving rental assistance, which is a serious violent criminal program violation." Second, the FHA asserted, "According to HUD regulations[,] Housing Authorities must propose termination of program participants who are subject to a lifetime registration requirement under the State sex offender registration program."

Mokatish requested a hearing on the proposed termination. An attorney from Legal Services of Northern California sent a letter to the FHA on Mokatish's behalf on September 19, 2013, pointing out that HUD regulations only prohibit admission to the Section 8 program of a registered sex offender, but there is no similar requirement that housing assistance of an existing Section 8 participant be terminated because the participant becomes a registered sex offender. Mokatish's counsel also argued the FHA had forfeited or waived the use of Mokatish's 2004 conviction as the ground for termination because the FHA had recertified his assistance eight times with knowledge of his status as a registered sex offender.

A HUD regulation requires PHA's to "establish standards that prohibit admission to the program if any member of the household is subject to a lifetime registration requirement under a State sex offender registration program." (24 C.F.R. § 982.553(a)(2)(i), italics added.) The same regulation requires PHA's to establish standards for terminating assistance, but does not identify status as a registered sex offender as a ground for termination. (See 24 C.F.R. § 982.553(b).) On appeal, the FHA concedes that status as a registered sex offender alone is not a basis for terminating housing assistance. Of course, housing assistance may be terminated if a Section 8 participant commits a sex offense that is "violent criminal activity" or "that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises." (24 C.F.R. § 982.551(l).)

Revised Proposed Termination of Assistance

By letter dated October 14, 2013, the FHA gave Mokatish notice of a "revised proposed termination of housing choice voucher assistance" (revised notice). Again, the FHA identified two grounds for the termination. The first—"a serious violent criminal program violation"—was unchanged from the first notice. The second ground was new: "You were convicted and sentenced for lewd acts with a child under 14, which included jail time, probation and a lifetime registered sex offender requirement. You did not report to the [FHA] that you were not living in the assisted unit while you were incarcerated."

The revised notice incorrectly described Mokatish's offense. On appeal, the FHA agrees Mokatish was convicted of section 288(c)(1), which is lewd acts with a child 14 or 15 years old.

The revised notice included the following exhibits: (1) HUD Family Obligations, 24 Code of Federal Regulations section 982.551, (2) Notice PIH 2012-28 on "State Registered Lifetime Sex Offenders in Federally Assisted Housing," (3) data submissions to HUD from the FHA for 2004 and 2005 showing no changes to the family composition while Mokatish was incarcerated, and (4) chapter 3 of the FHA Administrative Plan.

Informal Hearing and Hearing Officer Decision

An informal hearing on the proposed termination was held on October 17, 2013, three days after the FHA revised its termination notice. Mokatish was not assisted by counsel at the hearing, and the hearing was not recorded or transcribed. In her written decision, the hearing officer stated at the outset that "[o]nly the facts presented in the Summary of Evidence were considered in rendering this decision." So the only record of the witness testimony presented at the hearing is the hearing officer's "Summary of Evidence" in her written decision.

According to the hearing officer's written decision, an FHA housing specialist, Emma Harris, explained that, under the FHA's program policy, "an individual who is or is expected to be absent from an assisted unit for more than 180 consecutive days is considered permanently absent and no longer a family member." According to Harris, the family must request approval from the FHA for the return to the assisted unit of an individual who has been absent, and the "individual is subject to the eligibility and screening requirements." Harris apparently also stated that notice of the absence of a family member must be given to the FHA in writing.

Summarizing the evidence, the hearing officer wrote, "Ms. Harris explained that in accordance with the Family Obligations, removal of household members must be in writing; if a household is unable to come in to obtain the paperwork, [the] FHA will send out the appropriate form for completion." The meaning of "removal of household members" is not clear. However, later in her findings of fact, the hearing officer found the Mokatish household did not provide "written notification" of Mokatish's absence and the failure to report Mokatish's absence from the household was a violation of the family obligations. In context, it appears that Harris's testimony must have indicated that FHA policy requires a participating family to provide written notice of a family member's absence from the home.

Regarding Mokatish's 2004 conviction, the hearing officer wrote that Fairfield Police Officer Ross Hawkins "read into the record the allegations which caused an investigation to be opened" and "the investigation findings," identifying two separate incidents, one involving a boy and another incident involving a girl. However, the administrative record does not include police records or an abstract of judgment for Mokatish's criminal conviction. As to the facts underlying Mokatish's conviction, the hearing officer wrote, "The details disclosed by Officer Hawkins will not be repeated in this decision report."

According to the hearing officer's written decision, the FHA's attorney presented information that Mokatish was absent from the household for more than 180 days. He argued that, if the absence had been reported, Mokatish would have had to reapply, which would have caused a background screening (and presumably would have resulted in denial based on his status as a registered sex offender). Mokatish was assisted at the hearing by his brother-in-law, Steve Russo. Russo presented evidence that the FHA was given notice of Mokatish's conviction and absence from the home around the time of his conviction. Russo stated he was present with Mokatish's wife when she spoke on the telephone with someone at the FHA. Mokatish's wife told the FHA representative that her husband was in jail, and she "was told not to worry about it." Russo also reported that, after Mokatish indicated he was a registered sex offender on FHA paperwork, he continued to receive housing assistance.

After the hearing, the hearing officer made the following findings of fact:

"Mr. Mokatish was both arrested and convicted in 2004 of [section] 288(c)(1) . . . which is the commission of a willfully lewd or lascivious act upon a child under the age of 14 years when the person committing the act is at least 10 years older than the child . . . . The commission of these acts by Mr. Mokatish occurred while he was receiving Housing Choice Voucher (Section 8) rental assistance. Mr. Mokatish was incarcerated for a period of time beyond and anticipated to extend beyond 180 consecutive days. There was no written notification by the Mokatish household submitted to the FHA reporting that Mr. Mokatish was not in the household. [(Italics added, ellipses in the original.)]

Again, this is an incorrect description of an offense under section 288(c)(1), which involves lewd or lascivious conduct with a child of 14 or 15 years.

"In accordance with PIH HUD Notice 2012-28, 'if the tenant or a member of the household, regardless of the date of admission, engages in criminal activity (including sex offenses) while living in HUD-assisted housing, the O/A or PHA should pursue eviction or termination of assistance to the extent allowed by HUD requirements, the lease, and state or local law.' As the initial notice of [Proposed] Termination did indicate that Mr. Mokatish's 'arrest and conviction was while receiving rental assistance . . .' [the] FHA is not only addressing admission criteria. [(Ellipses in the original.)]

"Mr. Mokatish did violate the family obligations by engaing [sic] in criminal activity while participating in the Housing Choice Voucher (Section 8) program and by failing to report his absence from the household which was caused by his incarceration."

The hearing officer did not expressly find that Mokatish engaged in violent criminal activity. Instead, she apparently relied on the fact that he engaged in criminal activity that required him to register as a sex offender, citing HUD Notice PIH 2012-28 on "State Registered Lifetime Sex Offenders in Federally Assisted Housing."
This notice addresses HUD's concern that registered sex offenders may be receiving HUDsubsidized housing. In the notice, HUD urges PHA's to terminate housing assistance to registered sex offenders if they lied in their applications by failing to disclose their convictions or registered sex offender status. The end of the notice provides, "[I]f the tenant or a member of the tenant's household, regardless of the date of admission, engages in criminal activity (including sex offenses) while living in HUDassisted housing, the [owner/agent] or PHA should pursue eviction or termination of assistance to the extent allowed by HUD requirements, the lease, and state or local law." (Italics added.)
While Notice PIH 201228 expresses a HUD policy that PHA's should be vigilant and should terminate housing assistance to registered sex offenders to the extent possible, the notice does not create a new ground for terminating assistance. Mokatish did not lie about his status when he applied for Section 8 housing assistance (he was not a registered sex offender in 1998), and there is no evidence that he lied about his conviction later either. There is no family obligation or other regulation that requires termination of benefits solely because a person is a registered sex offender. Notice PIH 201228, by itself, is not authority for terminating housing assistance on the ground a person is a registered sex offender. (To the contrary, it provides alternative potential avenues for terminating the housing assistance of registered sex offenders precisely because registration status, by itself, is not a ground for termination.) Nor does Notice PIH 201228 make conviction of a sex offense a ground for termination. The trial court's decision (which is what we are reviewing on appeal) does not rely on Notice PIH 201228.

The hearing officer upheld the FHA's decision to terminate benefits.

Petition for Administrative Writ and Trial Court Order

Mokatish filed a petition for writ of administrative mandate, challenging the hearing officer's decision. He argued (1) the FHA waived the grounds for termination by recertifying him for many years with notice of his status as a registered sex offender, (2) the FHA should be barred from enforcing the termination decision because it unreasonably delayed in proposing termination, (3) the FHA did not provide sufficient notice of the grounds for termination before the informal hearing, (4) the hearing officer's decision was not supported by sufficient evidence because the uncontroverted evidence showed Mokatish's wife gave notice of his absence, and the hearing officer did not find that Mokatish committed a violent crime, and (5) the hearing officer committed legal error because HUD regulations do not require termination of assistance in these circumstances and Notice PIH 2012-28 is not a formal regulation and does not change the law.

In opposition, the FHA incorrectly asserted that Mokatish was convicted of two counts of lewd acts with a child under the age of 14. The evidence shows Mokatish has a single conviction under section 288(c)(1), a lewd or lascivious act upon a child of 14 or 15 years by a person at least 10 years older than the child, although the allegations involved a boy and a girl. From this incorrect premise, the FHA argued, "The crime [of violating section 288(c)(1)] includes as one of its elements 'willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part of member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.' (Penal Code §288(a), (c)(1).) This is a violent criminal activity within the definition of the Local Administrative Rules and, therefore, constituted grounds for termination from the Section 8 program." The FHA further argued, "Although the details of those cases were not summarized in the hearing officer's decision, there is sufficient evidence that evidence was presented at the hearing to establish that the molestation incidents upon children under the age of 14 was violent criminal activity."

The trial court determined that the hearing officer's conclusion was supported by the weight of the evidence and denied Mokatish's petition. The trial court found, "the FHA may terminate [Mokatish's] Section 8 housing assistance based on his arrest and conviction for violation of Penal Code Section 288(c)(1), which constitutes 'violent criminal activity' as that term is defined in 24 CFR 5.100 and the Administrative [Plan]." "Therefore," the court ruled, "the hearing officer did not abuse her discretion in determining that [Mokatish's] housing assistance may be terminated based on his arrest and conviction for violation of Penal Code Section 288(c)(1)."

HUD regulations define "violent criminal activity" as "any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage." (24 C.F.R. § 5.100.) The FHA Administrative Plan provides the same definition of "violent criminal activity."

These two sentences are the entirety of the trial court's ruling on "violent criminal activity." There was no analysis about why a section 288(c)(1) violation in general or Mokatish's crime in particular qualifies as violent criminal activity.

However, the trial court found the hearing officer abused her discretion in determining that the FHA could properly terminate Mokatish's Section 8 housing assistance for failure to give notice of his absence while he was incarcerated. The court determined that there was no requirement that notice of absence be in writing. The court explained: "Under 24 CFR 982.551(h)(3), the FHA may terminate a tenant's Section 8 housing assistance if he or his family failed to give 'prompt' notice of his absence during his incarceration. [The FHA has] contended that written notice was required. However, no authority has been cited, and the court cannot find any, that written notice was required. At the informal hearing, Mr. Steve Russo testified that [Mokatish]'s wife gave the FHA verbal notice of [the] conviction and incarceration over the phone; and [the FHA] provided no evidence to rebut this. Thus, the evidence establishes that notice of [Mokatish]'s absence was given, and the hearing officer abused her discretion in determining that [Mokatish]'s housing may be terminated for failure to give notice of [his] absence while he was incarcerated."

Finally, the trial court rejected Mokatish's waiver and estoppel arguments.

DISCUSSION

Mokatish contends the FHA did not meet its burden to establish a violation under the federal regulations because his conviction did not constitute "violent criminal activity." The FHA responds that, contrary to the trial court's finding, Mokatish was required to provide written notice of his absence from the home. The FHA also argues that the trial court's finding that Mokatish engaged in violent criminal activity was supported by substantial evidence. A. Standard of Review

Mokatish also argues that waiver and estoppel principles should bar the FHA from using his conviction against him at this late date. Given our conclusion that, on the record before us, his conviction does not qualify as "violent criminal activity," we need not consider these arguments.

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. Because a decision terminating or denying public assistance affects fundamental vested rights, the trial court exercises its independent judgment in reviewing the decision. (Ruth v. Kizer (1992) 8 Cal.App.4th 380, 385; Frink v. Prod (1982) 31 Cal.3d 166, 180; Harlow v. Carleson (1976) 16 Cal.3d 731, 737.)

We review "the record to determine whether the trial court's findings are supported by substantial evidence. We resolve all evidentiary conflicts and draw all reasonable inferences in favor of the trial court's decision, and may overturn the trial court's factual findings only if the evidence is insufficient as a matter of law to sustain them. [Citation.] However, where the determinative issue is legal rather than factual we exercise our independent judgment. [Citation.] 'If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds on which the court reached its conclusion.' " (LaGrone v. City of Oakland (2011) 202 Cal.App.4th 932, 940-941.) B. Violent Criminal Activity

There is no dispute that "violent criminal activity" is a violation of the family obligations and would subject a Section 8 participant to termination of housing assistance. (24 C.F.R. §§ 982.552(c)(1)(i), 982.551(l).) As we have mentioned, HUD regulations define "violent criminal activity" as "any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage." (24 C.F.R. § 5.100.) Mokatish argues his conviction for violation of section 288(c)(1) does not meet the applicable definition of "violent criminal activity." We agree.

Section 288(c)(1) provides in relevant part, "Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year." Subdivision (a) of section 288 provides in relevant part, "any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."

By its own terms, section 288(c)(1) does not have as one of its elements "the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage." (24 C.F.R. § 5.100.) A violation of section 288(c)(1) requires lewd or lascivious conduct, but such conduct does not necessarily involve the use or threatened use of force. (See CALCRIM No. 1112 [offense requires either "defendant willfully touched any part of a child's body either on the bare skin or through the clothing" or "defendant willfully caused a child to touch (his/her) own body, the defendant's body, or the body of someone else, either on the bare skin or through the clothing"].) For example, in People v. Diaz (1996) 41 Cal.App.4th 1424, cited by Mokatish, the defendant was masturbating in a movie theater. He sat next to the victim and, while masturbating, touched her mid-thigh with his hand. The appellate court concluded this was sufficient to constitute a lewd act under section 288. (Id. at pp. 1426-1428.) Touching a victim's mid-thigh is not, by itself, "physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage." (24 C.F.R. § 5.100.)

Even the FHA does not take the position that every violation of section 288(c)(1) necessarily constitutes "violent criminal activity" for purposes of the Section 8 program. Instead, it suggests the evidence presented in this case was sufficient to find Mokatish engaged in "violent criminal activity." The FHA argues the evidence included Officer Hawkins's testimony, "details of the allegations that lead to an . . . investigation of [Mokatish]," and "the investigative findings detailing the criminally violent abuse suffered by [Mokatish's] multiple victims." The problem with this argument lies in the hearing officer's written decision. The hearing officer wrote, "Only the facts presented in the Summary of Evidence were considered in rendering this decision." But in the Summary of Evidence, the hearing officer chose not to present any facts on this point, other than the fact of the conviction itself: "The details disclosed by Officer Hawkins will not be repeated in this decision report." And the "Findings of Fact" simply restate that Mokatish "did violate the family obligations by engaing [sic] in criminal activity . . . ." The hearing officer's decision reflects only that Mokatish suffered a single conviction under section 288(c)(1) based on two alleged incidents, one involving a boy and one involving a girl. There is no evidence in the administrative record that Mokatish engaged in "criminally violent abuse" or "multiple violent criminal acts" as claimed by the FHA. (Italics added.) Thus, on this record, there is no substantial evidence to support a finding that Mokatish used, or threatened to use, physical force substantial enough to constitute "violent criminal activity" as the term is defined by HUD regulations.

Unlike our dissenting colleague, we do not speculate why the hearing officer chose not to state the evidence on which her ultimate conclusion was based. Nor is it of significance to us that her conclusion was presented under the heading "Findings of Fact." There was no heading entitled "Conclusions of Law," the only "Conclusion" being the general statement that the FHA had "fulfilled its burden to prove its allegation that . . . Mokatish is in violation of his Family Obligations under the program."

Our dissenting colleague would affirm the trial court's decision in favor of the FHA on the ground that the administrative record is inadequate to determine whether substantial evidence supports a finding of "violent criminal activity." We respectfully disagree with this approach. First, the FHA—which prepared and filed the 78-page certified administrative record for Mokatish's petition—never argued that the administrative record was inadequate. Instead, the FHA took the position, before the trial court and in this appeal, that substantial evidence in the administrative record supports a finding of "violent criminal activity."

Second, we do not believe Mokatish is responsible for any asserted inadequacy with the administrative record perceived by the dissent. While it has been said that it is "up to [the petitioner] to supply a sufficient record to show the [administrative agency] was wrong" (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 355 (Elizabeth D.)), it has also been observed that a petitioner is "entitled to have the entire record of the administrative proceedings presented to the court for review." (Chavez v. Civil Service Com. (1978) 86 Cal.App.3d 324, 332 (Chavez).) Here, Mokatish timely requested that the FHA prepare the administrative record, and, in response to this request, the FHA had a statutory duty to prepare a "complete record of the proceedings" and deliver it to Mokatish within 190 days. (Code Civ. Proc., § 1094.6, subd. (c), italics added.) It appears the FHA responded to Mokatish's request without objection, even informing the court that the record was "likely to be limited in nature and scope," so that it would not take long to produce.

The present case is not at all like Elizabeth D., relied upon by the dissent. In Elizabeth D., the petitioner sought an administrative writ to set aside the DMV's decision to suspend her driver's license for medical reasons on the ground that the evidence was insufficient. But rather than ask the administrative agency to prepare a complete record, the petitioner instead cherry-picked a document to show the trial court and filed declarations that had not been presented at the administrative hearing. The petitioner attempted to brush off the fact that she had not provided the trial court with the administrative hearing transcript or other key documents that were part of the administrative record as simply irrelevant to consideration of her medical condition, and any error was harmless. (Elizabeth D., supra, 21 Cal.App.4th at pp. 350-355.) On these facts, the Court of Appeal concluded that the petitioner had not met her burden of providing even a "partial record" of the administrative proceeding under Code of Civil Procedure section 1094.5 sufficient for a reviewing court to understand what occurred below and independently review the administrative decision. (Id. at p. 355.) The Court of Appeal would not countenance what it characterized as litigants participating in " 'gamesmanship' " that deprived the trial court an opportunity to review claims of error in administrative proceedings, and it was in this context that the Court of Appeal wrote that "[t]he DMV was not required to show it was right. It was up to [the petitioner] to supply a sufficient record to show the DMV was wrong." (Id. at pp. 354-355.) But we can hardly characterize Mokatish as engaging in " 'gamesmanship' " when he asked the FHA to prepare a complete record of the proceedings.

Further, Mokatish took additional steps to supply a sufficient record to the trial court, filing a motion to augment the record on the ground the administrative record prepared by the FHA was "incomplete" because "there is no transcript of the oral testimony." He specifically sought to augment the record with documents to reflect his brother-in-law's testimony that he reported his sex offender status to the FHA in writing every year in the Section 8 recertification process. But Mokatish also reminded the court of his right to have "the entire record" of the administrative proceeding presented to the court for review (citing Chavez, supra, 86 Cal.App.3d at p. 332, italics added), and asked more generally for an order that the FHA "augment the Administrative Record to accurately reflect the evidence as submitted at the Hearing." The FHA opposed Mokatish's motion to augment. It asserted that Mokatish's petition presented questions of law only, and took the position, "Despite the absence of a transcript of the Informal Hearing in this case, the administrative record contains sufficient evidence to support the Hearing Officer's decision." In his reply, Mokatish pointed out, "there is no evidence to support a finding on the issue of violent criminal activity. Respondents implicitly acknowledge this when they argue that there is 'evidence that evidence was presented' 'although the details' are not summarized in the decision. Respondents cannot rely on details that are not in the record before the court." The trial court denied Mokatish's motion to augment, finding "the augmentation requested is not necessary for the court to make its decision in this matter." Had the trial court believed the administrative record was inadequate "on the issue of violent criminal activity" as asserted by Mokatish, it could have granted his motion to augment the record on that issue. Given all the circumstances of this case, including the trial court's ruling denying the motion to augment, it would be inappropriate for us now to affirm the court's decision on the ground Mokatish failed to provide an adequate record. And, again, the FHA has never taken the position that the administrative record is inadequate.

These documents were four annual family recertification statements filed by Mokatish from 2010 through 2013 showing the the box checked "yes" that someone "in your household is a registered sex offender," with Mokatish's name filled in. Mokatish also sought to add a file destruction log, which purported to show Mokatish's FHA documents dating from 1998 to 2009 had been purged in 2012 and 2013. The FHA would not agree to add these documents to the administrative record because they had not been considered by the hearing officer.

Indeed, the doctrine of judicial estoppel should prevent the FHA from benefiting from any purported inadequacy of the record when it took the contrary position that the administrative record was adequate—and prevailed on that issue—before the trial court. (See Aguilar v. Lerner (2004) 32 Cal.4th 974, 986 [judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position].)

Finally, our dissenting colleague's policy concern that failing to terminate Mokatish's Section 8 housing assistance could result in fewer landlords accepting Section 8 tenants is unfounded. (Recall, the FHA began termination proceedings after Mokatish informed the FHA he was unable to find suitable housing in part because of his registration status.) (Cf. 89 Ops.Cal.Atty.Gen. 85 (2006) [prohibition against unauthorized use of registered sex offender identifying information does not mean registered sex offenders are a " 'protected class' for purposes of housing discrimination under the Fair Employment and Housing Act"].) This case does not affect in any way the FHA's entitlement to enforce its rules terminating assistance to those who it has proven have committed violent criminal acts, or its regulations governing who is eligible to apply for Section 8 assistance in the first instance whether because of sex registration requirements or otherwise. C. Written Notice

In light of our conclusion above, the FHA's decision to terminate housing benefits cannot be upheld on the ground that Mokatish violated the family obligations by engaging in violent criminal activity. The FHA urges that we nonetheless affirm because Mokatish violated his obligation to give notice of his absence from the housing unit for the period of time he was in jail.

The FHA argues the trial court improperly concluded that Mokatish had no obligation to provide written notice of his absence. The trial court found that oral notice of Mokatish's absence was given, and further determined that written notice was not required because the FHA provided no authority to support such a requirement. Implicitly, the trial court found Harris's vague testimony at the informal hearing was insufficiently clear or credible to establish that the FHA had a known policy requiring notice of a participant's absence be made in writing. We will not disturb the trial court's finding.

For the first time on appeal, the FHA has identified a HUD regulation supporting its position. It provides, "Where part 982 [governing Section 8 housing assistance] requires any notice to be given by the PHA, the family or the owner, the notice must be in writing." (24 C.F.R. § 982.5.)

Mokatish responds that the FHA may not rely on his asserted failure to provide written notice of his absence because this particular ground for termination was not provided in the revised notice. The two grounds for termination in the revised notice were (1) "a serious violent criminal program violation," and (2) failure to "report to the [FHA] that [Mokatish was] not living in the assisted unit while [he was] incarcerated." The revised notice included the family obligations as an exhibit, and each proposed ground for termination was a violation of the family obligations. (24 C.F.R. § 982.551(l) ["violent criminal activity"], (h)(3) ["promptly notify the PHA if any family member no longer resides in the unit"], and (i) ["promptly notify the PHA of absence from the unit].) The revised notice did not allege there was a requirement that the family provide written notice, and nothing in the attached exhibits would have suggested to Mokatish that written notice was required.

Before the trial court, Mokatish argued that the FHA could not raise a new ground for termination (that is, the absence of written notice) for the first time at the informal hearing. Mokatish asserted he was never provided documentation of the requirement of written notice, and he was never told of the requirement during his participation in the Section 8 program. He argued the FHA should not be allowed to rely on the requirement that the notice be in writing when it did not ask for the notification in writing (after Mokatish's wife provided oral notice), and the requirement that all notices be written was not included in the family obligations provided to participants. Further, Mokatish claimed it was the FHA's failure to inform him of the writing requirement that "induced the grounds" it was now raising to support termination.

We find Mokatish's argument persuasive. "In Goldberg v. Kelly (1970) 397 U.S. 254 [(Goldberg)], the court held that consistent with procedural due process requirements, welfare recipients must be afforded an evidentiary hearing prior to termination of benefits, with adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting adverse witnesses and by presenting his or her own arguments and evidence orally." (Rauber v. Herman (1991) 229 Cal.App.3d 942, 953, italics added.) In compliance with the due process principles of Goldberg, HUD regulations provide procedures for an informal hearing prior to the termination of housing assistance. (See 24 C.F.R. § 982.555; Bouie v. New Jersey Dept. of Community Affairs (N.J.Super.Ct.App.Div. 2009) 972 A.2d 401, 409 (Bouie).) Among other things, the PHA must provide written notice with "a brief statement of reasons for the decision" to terminate assistance. (24 C.F.R. § 982.555(c)(2)(i).)

Here, the two reasons for termination were asserted violations of the family obligations. But the family obligations do not specify that prompt notice must be given in writing. Mokatish would have had no reason to know that he would be expected at the informal hearing to show, not only that he gave prompt notice of his absence to the FHA, but that the notice was in writing. Moreover, Mokatish's claim that he was never made aware of the written notice requirement has particular force given the FHA's inability to provide documentation of such a rule in advance of either the informal hearing or the trial court proceedings.

As the FHA has discovered, there is a HUD regulation that requires notices to be given in writing. (24 C.F.R. § 982.555 (c)(2)(i).) But this writing requirement is not expressly part of the family obligations. (24 C.F.R. § 982.551.) It is a procedural requirement, which the FHA itself does not have easily identifiable documentation of. We decline the FHA's invitation to uphold the termination of Mokatish's housing assistance based on his asserted failure to provide written notice of absence; in light of the FHA's failure to give adequate notice of this specific reason for termination, it would violate the due process principles of Goldberg to do so. (See Bouie, supra, 972 A.2d at pp. 532-534 [termination of Section 8 housing assistance reversed where the notices of intention to terminate failed to inform the participant of the specific reasons for termination].)

DISPOSITION

The judgment denying the petition for writ of administrative mandate is reversed. The trial court is directed to enter a new order and judgment granting the petition. Mokatish shall recover his costs on appeal.

/s/_________


Miller, J. I concur: /s/_________
Richman, Acting P.J. Stewart, J., concurring in part and dissenting in part.

I agree with the majority that the trial court was correct in rejecting the Fairfield Housing Authority's (FHA) contention that petitioner Mokatish was required and failed to provide written notice of his absence to the agency for the period he was incarcerated because the requirement of a writing was not expressly included in the family obligations and was not mentioned in the FHA's notice as the basis for terminating his Section 8 benefits. I also agree with the majority that use of, or threat to use, physical force is not an essential element of the crime of lewd and lascivious acts upon a child in violation of Penal Code section 288, subdivision (c)(1) and that violent criminal activity within the meaning of HUD regulations was not established by the sole fact that petitioner was convicted under that statute.

HUD regulations define "[v]iolent criminal activity" to mean "any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage." (24 C.F.R. § 5.100.)

Where I part ways with the majority is on its approach to Mokatish's challenge to the trial court's decision on the ground that there was no substantial evidence supporting the FHA's determination that Mokatish committed acts of violence. Here, the parties failed to provide either the trial court or this court with an adequate record of the agency proceedings. Regarding whether Mokatish's conduct was in fact violent, the administrative record is missing a critical component: the Fairfield police officer's testimony about the details of Mokatish's crimes. We cannot fairly decide whether there was substantial evidence to support the hearing officer's finding that he acted violently when the administrative record is incomplete on that precise issue. It is the petitioner's burden, on filing an administrative writ challenging an agency decision for lack of substantial evidence, to provide the court an administrative record that is adequate to enable the court to decide the substantial evidence question. That record must contain all material evidence presented to the agency decision maker in support and opposition to the challenged finding. Mokatish did not provide such a record in the court below or in this court; nor beyond generally requesting the record of proceedings did he attempt to do so. The trial court was thus correct in rejecting Mokatish's substantial evidence challenge to the violent criminal conduct finding and denying the writ.

The majority reverses the trial court's decision because "there is no substantial evidence to support a finding that Mokatish used, or threatened to use, physical force substantial enough to constitute 'violent criminal activity' as the term is defined by HUD regulations." (Maj. Opn., p. 13.) In doing so, it sidesteps basic precepts governing administrative writ proceedings and ignores the negative effects its override of HUD's and FHA's anti-violence policies may have on the Section 8 housing program and the people it serves.

Administrative Writ Proceedings

"When a person petitions for a writ of mandate following an [administrative decision affecting a fundamental right], the court is required to determine, based on the exercise of its independent judgment, whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456; Code Civ. Proc., § 1094.5.) In making that determination, the court acts as a trier of fact; it has the power and responsibility to weigh the evidence and make its own determination about the credibility of witnesses. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) The administrative findings, however, are entitled to 'a strong presumption of correctness,' and 'the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.' " (Arthur v. Department of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1204-1205.)

"Under section 1094.5, subdivision (a), '[a]ll or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent's points and authorities, or may be ordered to be filed by the court.' Even though section l094.5, subdivision (a) allows both parties in a mandamus proceeding to file either 'all or part' of the record of the administrative proceeding for review by the court, this does not mean respondent is required to file the administrative record or that petitioner is relieved from the burden of providing a sufficient enough record to establish error.

"In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; '. . . otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed " 'prejudicial abuse of discretion.' " [Citations.]' [Citations.] '[I]n the absence of an evidentiary record, sufficiency of the evidence is not an issue open to question. Rather, we must presume that the findings were supported by substantial evidence.' " (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354, italics added.)

The Fairfield Housing Authority Administrative Proceedings

In the administrative proceeding, Mokatish offered no evidence concerning the details of his sex offense conviction; nor did he or the counsel who assisted him argue that his conduct involved no violence or threat of violence. The FHA, on the other hand, proffered the testimony of a Fairfield police officer regarding the allegations and investigation that led to Mokatish's conviction.

The only response in the letter brief submitted by the Legal Services Office on Mokatish's behalf to the FHA's assertion that it was terminating Mokatish's Section 8 benefits based on his commission of a violent act was that the FHA had recertified his assistance eight times with knowledge of his status and had therefore forfeited the argument.

In her decision upholding the FHA's decision to terminate Mokatish's Section 8 benefits, the hearing officer described the officer's testimony, stating:

"Officer Ross Hawkins read into the record allegations which caused an investigation to be opened against Mr. Mokatish. In addition to the allegations, Officer Hawkins also read into the record the investigation findings. The investigation identified two separate incidences [sic] involving a boy the first time and a girl the second time.

"The details disclosed by Officer Hawkins will not be repeated in this decision report."

It is unclear why the hearing officer decided not to "repeat" the details of Mokatish's offenses in her decision; perhaps she thought it would be embarrassing to his family or violate the privacy of the children involved. But Mokatish could easily have requested that she provide that detail once the decision was issued and he had decided to raise a substantial evidence challenge to her finding.

Based on this evidence, the hearing officer found: "Mr. Mokatish did violate the family obligations by engaging in criminal activity while participating in the Housing Choice Voucher (Section 8) program . . . ." (Italics added.)

Analysis

Mokatish argues that the hearing officer did not find violent criminal activity, and the majority echoes this argument, observing that "[t]he hearing officer did not expressly find that Mokatish engaged in violent criminal activity." (Maj. Opn., p. 7, fn. 5.) The majority further asserts that the hearing officer "apparently relied on the fact that [Mokatish] engaged in criminal activity that required him to register as a sex offender, citing HUD Notice PIH 2012-28 on 'State Registered Lifetime Sex Offenders in Federally Assisted Housing.' " (Ibid.) The majority's description of the hearing officer's finding is at best speculative and at worst a distortion of the hearing officer's decision.

First, the majority treats the above-quoted italicized language in the hearing officer's decision as a conclusion of law, ignoring that the hearing officer labelled it a "FINDING[] OF FACT." Second, the finding refers to a violation of the "family obligations," and the only criminal acts the FHA cited in its notice as violating the family obligations were his arrest and conviction for the sex offenses, which it described as "a serious violent criminal program violation." (Italics added.) The family obligations regulation on which the FHA relied prohibited household members of families participating in the housing assistance program from engaging in "violent criminal activity." The hearing officer's finding that Mokatish violated the family obligations by engaging in criminal activity must therefore be understood as a finding that the sexual acts Mokatish committed on the boy and/or the girl involved violence—i.e., attempted or actual force or a threat of force. (See fn. 1, ante.) Third and finally, the majority's attempt to explain away the hearing officer's finding by recasting it as an incorrect legal conclusion fails to accord the hearing officer her due. As the trial court plainly understood, but the majority does not, in reviewing agency decisions, even those subject to independent review, courts "must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) The trial court was required to presume, as are we, that the hearing officer acted consistently with her duty. (See id. at pp. 812, 815; Evid. Code, § 664). It is not the court's task in reviewing an administrative decision to hypothesize error where the petitioner has not convincingly demonstrated it. (Cf. Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1043 [presumption of correctness required court to presume lower court properly applied the law where decision was ambiguous].)

The family obligations document listed two other types of prohibited criminal conduct—"drug-related criminal activity" and "other criminal activity that threatens the health, safety or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises." However, the FHA did not rely on these other categories in its notices of proposed termination, and consistently asserted Mokatish's crimes were a "serious violent criminal program violation."

Here Mokatish did not demonstrate that the hearing officer's finding was erroneous, that is, that there was no substantial evidence to support it. On the contrary, under the heading "The Hearing Officer's Decision is Not Supported by Evidence," Mokatish argued in the trial court that the FHA failed to present "any evidence" to establish that his criminal acts were "violent" and therefore a violation of the family obligation on which the FHA relied. But the record he submitted to the trial court did not contain the evidence offered by the agency about the nature and circumstances of his acts.

As the leading treatise on administrative writ practice states, "A petitioner must in all cases take the steps required to request and pay for preparation of the administrative record. . . . A petitioner who puts the sufficiency of the evidence in issue has the burden of requesting and paying for the inclusion of the transcript of the administrative hearing in the record and of specifying, by reference to the record, how the evidence was insufficient to support the decision." (2 California Administrative Mandamus (Cont.Ed.Bar 3d ed. 2016) Trial and Judgment, § 14.16, p. 14-19 (Cal. Admin. Mandamus).) "Because the courts are required to examine the evidence in making such a determination, the agency has an implied duty to preserve the evidence that was submitted to it. If an agency does not keep a verbatim record, the court may order the parties to reconstruct the record and, if they cannot do so, the court may order the agency to hold a new hearing to provide an adequate record." (1 Cal. Admin. Mandamus, supra, Initiating Proceedings to Review, § 10.12, p. 10-12; Hothem v. City & County of San Francisco (1986) 186 Cal.App.3d 702, 705; Chavez v. Civil Serv. Com. (1978) 86 Cal.App.3d 324, 332 (Chavez).) If the record is prepared by the agency and the petitioner believes the agency has omitted a material item or items, he may request that the item(s) be added (1 Cal. Admin. Mandamus, supra, Administrative Record, § 4.11, p. 4-15) or file a motion to correct the record to include the additional item(s) (id., § 4.12, p. 4-17). What he may not do is stand on the insufficient record while raising a challenge to the sufficiency of the evidence. But that is precisely what Mokatish did. "If the petitioner fails to file a sufficient record to show error, the presumption of regularity will prevail and the petition will be denied." (Id., § 4.11A, p. 4-16; Elizabeth D. v. Zolin, supra, 21 Cal.App.4th at p. 354.)

The majority excuses Mokatish for his failure to provide an adequate record on two grounds, first, because in its view the FHA waived the inadequacy by failing to raise it and second, because Mokatish sought to augment the record. (Maj. Opn., p. 13.) The first argument again misconstrues the parties' respective burdens in an administrative writ proceeding. The issue is whether Mokatish met his burden to show error. The agency could have filed no brief at all, and the court would still have been required to deny Mokatish's sufficiency of the evidence challenge. (See Griffin v. Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 505 [if respondent files no brief at all we still examine record to see if it supports any claims of error made by appellant].) Moreover, the FHA did address the issue in the trial court and on appeal. In response to Mokatish's challenge to the sufficiency of the evidence of violence, the FHA argued that the hearing officer did not rely solely on the conviction under Penal Code section 288, subdivision (c)(1), but relied on "testimony regarding the underlying incident from Fairfield Police Officer Ross Hawkins," who "read into the record at the administrative hearing the allegations and investigation of two separate incidents of child molestation, one against a boy victim and one against a girl victim." While acknowledging that "the details of those cases were not summarized in the hearing officer's decision," the FHA argued that the hearing officer's opinion, which referenced Hawkins's testimony, demonstrated there was evidence to support her finding that the criminal activity was violent. In its respondent's brief on appeal it makes the same argument, referring to the "investigative findings detailing the criminally violent abuse suffered by [Mokatish's] multiple victims." In my view, the FHA's argument was more than sufficient to join issue with Mokatish on whether the trial court could conclude, on this administrative record, there was insufficient evidence that his conduct was violent.

Nor is the fact that Mokatish sought augmentation a ground for excusing his failure to seek or procure an adequate record on this point. In that motion, he made no effort to require a transcript or a summary of Officer Hawkins' testimony or a copy of the "allegations" or "investigation findings" he read into the record. Mokatish complained only that the record was missing the testimony his brother-in-law, Russo, gave regarding notice of Mokatish's conviction that the FHA received in 2004. In light of the limited nature of this request and the court's determination of the notice and estoppel arguments without need of the Russo testimony, the trial court understandably found the augmentation sought by Mokatish unnecessary to its decision.

Ultimately, in his reply brief in support of the petition and the motion to augment in the trial court, Mokatish mentioned the adequacy of the record on the issue of whether his conduct was violent. But rather than argue for augmentation of that part of the record, Mokatish stood on the existing record and argued it was "sufficient" to show "no evidence was presented on the issue of violent criminal activity under the Regulations," and that the FHA was not entitled to argue otherwise based on "details that are not in the record before the court." In effect, Mokatish attempted to convert his burden to show error, including by providing an adequate record, into a burden on the FHA to defend the hearing officer's decision, and the majority goes along with that backwards approach. As the court stated in Elizabeth D. v. Zolin, supra, 21 Cal.App.4th at p. 354: "In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; '. . . otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed " 'prejudicial abuse of discretion.' " [Citations.]' [Citations.] '[I]n the absence of an evidentiary record, sufficiency of the evidence is not an issue open to question. Rather, we must presume that the findings were supported by substantial evidence.' " As the court there noted, "[t]he [agency] is not required to show it was right. It was up to [the petitioner] to supply a sufficient record to show the [agency] was wrong." (Id. at p. 355.)

In my view, the hearing officer found Mokatish's conduct was violent within the meaning of the HUD regulations, Mokatish failed to demonstrate error in that finding and for that reason the trial court's decision should be affirmed. But even if I were inclined to excuse Mokatish and lay partial blame on the FHA for the inadequate record as the majority does, I would remand this case to the trial court with directions to determine whether an adequate record may be obtained by supplementation, and, if not, for it in turn to remand for a new administrative hearing. (See Chavez, supra, 86 Cal.App.3d at p. 332; Hadley v. City of Ontario (1974) 43 Cal.App.3d 121, 127.)

I am unwilling to turn a blind eye to the very real possibility that Mokatish's sexual offenses against two children entailed at least a threat of force, if not actual force. After all, what little we know from the record is that in 2004, while receiving Section 8 housing assistance, Mokatish was arrested and convicted of a sexual offense and subjected to a lifetime requirement of registration as a sex offender. The police investigation that led to his conviction revealed Mokatish had engaged in sexual misconduct with juveniles on two occasions, one with a "boy" and the second with a "girl." We do not know the age of the children, the nature of the acts or the circumstances under which Mokatish committed the acts. The criminal conduct with which the FHA had charged Mokatish in its termination notices was "violent criminal activity." And it is notable that the legal aid organization who filed a letter brief with the hearing officer on Mokatish's behalf did not argue that his conduct was not violent.

Both the Fairfield Police Department form completed by the police officer who testified and the hearing officer's decision state that Mokatish was convicted of lewd acts with "a child under the age of 14 years." (Italics added.) However, both also cite the statute under which Mokatish was convicted as Penal Code section 288, subdivision (c)(1), which makes it a felony to engage in lewd and lascivious acts with a child of 14 or 15 years of age who is at least ten years younger than the perpetrator. (Pen. Code, § 288, subd. (c)(1).) In describing the investigation findings to which Officer Hawkins testified, the hearing officer stated that "[t]he investigation identified two separate incidences involving a boy the first time and a girl the second time." It is unclear whether the children Mokatish molested were 14 or 15, as the statutory section suggests, or younger, as the report filled out by Officer Hawkins and the decision of the hearing officer suggest. --------

The FHA is entitled to enforce its rule prohibiting violent criminal acts by persons receiving housing assistance by terminating assistance to those who violate the rule. If violent criminals, especially sexual predators, are permitted to live in such housing, the result may well be that fewer landlords will accept Section 8 tenants, to the detriment of the program and the many law-abiding and non-violent people it serves.

/s/_________


STEWART, J.