MIRACLE STAR WOMEN RECOVERING COMMUNITY INC v. KATHERINE JETT (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendants Katharine Jett, Director, and the California State Health and Human Services Department of Alcohol and Drug Programs appeal from a judgment in favor of plaintiff Miracle Star Women's Recovering Community, Inc. Defendants contend the trial court erroneously submitted a constitutional question to the jury and erred in denying their motions for judgment in their favor.   They also claim evidentiary error.   We agree that defendants were entitled to judgment in their favor and reverse.

FACTS1

Miracle Star Women's Recovering Community, Inc. (Miracle Star) was licensed by the California State Health and Human Services Department of Alcohol and Drug Programs (Department) as a residential alcohol and drug treatment facility.   It operated a facility on Cedar Avenue in Lancaster and a second facility on an adjoining property on Newgrove Avenue.   The facilities are owned and operated by Jeffrey and Star Moffatt (Moffats).

On January 28, 2004, Department inspector Robert Rose (Rose) conducted a routine inspection of the two facilities, as well as another adjoining property on Newgrove Avenue which Moffatt hoped to have added to the license.   Rose noted two “deficiencies” requiring correction-a missing light bulb and a loose trash can lid.   He also observed two women at the Newgrove Avenue facility who were living there as “sober living” clients.²  He told Ms. Moffatt that he did not know whether sober living clients could be housed in the treatment facility.   He would check with his supervisor and let her know.

On February 3, 2004, Rose sent the Moffatts a Notice of Deficiency, identifying the missing light bulb and trash can lid as deficiencies, requesting a fire certification for the property the Moffatts hoped to add to Miracle Star's license, and citing Miracle Star for “operating outside the conditions of its license.”

The Moffats responded by letter on March 1, 2004 that the deficiencies had been corrected and provided Rose with a copy of the requested fire certification.   On March 5, the Moffats sent Rose a second letter stating their belief it was acceptable to house sober living clients at a treatment facility and citing authority for their position.   Rose did not respond to either letter.   Nevertheless, within about two weeks the Moffats moved the two women out of the treatment facility.   Ms. Moffatt called Rose and told him that the women were no longer living in the treatment facility, but he said the matter was now out of his control.

Miracle Star's license was to expire on April 30, 2004.   The Moffatts submitted a renewal application prior to that date.   On May 15, they received a letter from Rose demanding receipts proving they had corrected the deficiencies.   They sent him the receipts.   On May 21, they received a letter from the Department stating that Miracle Star's license had not been renewed and the facilities were required to cease operations.

The Moffats communicated with both the Department and the Office of Administrative Hearings, requesting a hearing on the Department's refusal to renew Miracle Star's license.   They were informed that only the Department could initiate an administrative hearing.

The Department took the first step toward initiating an administrative hearing on April 7, 2005, when it filed a Statement of Issues, citing Miracle Star for the missing light bulb, the loose trash can lid and operating outside the scope of its license.   The administrative hearing did not take place until December 2006.

On February 26, 2007, the administrative law judge issued an order dismissing the statement of issues and granting Miracle Star's request for renewal of its license.   The order also provided that the third facility could be added to the license once it passed the Department's inspection.

PROCEDURAL BACKGROUND

Miracle Star filed this action against the Department on November 10, 2005, alleging 15 causes of action for violation of various constitutional and statutory provisions.   By the time of trial, however, in December 2008, the matter had been reduced to one cause of action for violation of due process.   Although the Moffatts were at one time plaintiffs, by the time the case was submitted to the jury they were no longer parties.

At trial, the Department sought to introduce the administrative decision into evidence.   The trial court allowed only one page of the decision-the order dismissing the Statement of Issues and granting the license renewal-into evidence.   The court explained that the decision contained “too much law” that might be different from the law applicable to the civil lawsuit.   Additionally, the findings of the administrative law judge had no relevance to the case.

The Department also filed a motion for directed verdict or, in the alternative, dismissal, and a second motion for directed verdict or, in the alternative, judgment on the pleadings.   The basis of both motions was the same:  that Miracle Star had no right to money damages for a due process violation.   The trial court denied these motions.

The jury was instructed as to the elements of a due process violation, the requirements of a Notice of Deficiency, and tort damages.   By special verdict, the jury found that the Department “fail[ed] to provide Due Process to” Miracle Star, causing damage in the amount of $302,000 for past economic loss and $90,600 for future economic loss, for a total of $392,600 in damages.

DISCUSSION

The Department contends that the trial court erred in denying its motions for a directed verdict, dismissal or judgment on the pleadings, in that Miracle Star had no right to money damages for a due process violation when there were alternative legal remedies available.   In support of this contention, the Department relies, as it did below, on Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465 and Katzberg v. Regents of University of California (2002) 29 Cal.4th 300.

In Bonner, the court held that a plaintiff has no right to money damages for violation of the state due process or equal protection clauses.   This holding was based on the conclusion that the voters did not intend to provide a damages remedy for violation of these provisions.  (Bonner v. City of Santa Ana, supra, 45 Cal.App.4th at pp. 1471-1476.)

In Katzberg, the Supreme Court examined the question whether a plaintiff may maintain an action for money damages based on a violation of his due process liberty interests.  (Katzberg v. Regents of University of California, supra, 29 Cal.4th at p. 307.)   The court adopted a framework for determining the availability of a damages remedy for an asserted constitutional violation.   First, it would look for evidence from which it could find or infer an affirmative intent either to authorize or to withhold a damages action to remedy a violation of the constitutional provision at issue.   Second, if no such intent or inference could be found, it would undertake a “ ‘constitutional tort’ ” analysis.   This analysis requires an examination of such factors as “whether an adequate remedy exists, the extent to which a constitutional tort action would change established tort law, and the nature and significance of the constitutional provision.”  (Id. at p. 317.)   If these factors weighed in favor of recognizing a constitutional tort, then the court would “consider the existence of any special factors counseling hesitation in recognizing a damages action, including deference to legislative judgment, avoidance of adverse policy consequences, considerations of government fiscal policy, practical issues of proof, and the competence of courts to assess particular types of damages.”  (Ibid.)

In examining the due process clause, the court found no express or implied right to seek monetary damages for a due process violation.  (Katzberg v. Regents of University of California, supra, 29 Cal.4th at p. 324.)   It then proceeded to examine the factors that would help it determine whether a damages remedy would be appropriate.   As to the adequacy of existing remedies, it concluded “that this consideration does not support recognition of a constitutional tort cause of action for damages to remedy an asserted violation of the due process ‘liberty’ interest․”  (Id. at p. 326.)   Rather than pursuing an action for damages, the plaintiff could have sought to remedy the alleged wrong by filing a petition for writ of mandate seeking to compel the defendant to hold a timely hearing.  (Ibid.) He also could have sought to establish a due process violation by seeking declaratory or injunctive relief.  (Ibid.) In addition, in that particular case, the plaintiff could have brought a defamation action to obtain damages for the alleged wrong.   (Id. at p. 327.)

The court further found that allowing a constitutional tort action would change established tort law.  (Katzberg v. Regents of University of California, supra, 29 Cal.4th at pp. 327-328.)   Although the plaintiff “suggest [ed] that a damages action to remedy an asserted violation of his due process liberty interest [was] contemplated by tort law as codified by Civil Code sections 1708 and 3333,” the court rejected his claim.  (Id. at p. 327.)  Section 1708 merely provides that every person is bound to abstain from injuring another, and section 3333 provides the general measure of damages in tort cases.   Neither provides support for a claim that tort law contemplates a cause of action for damages for a due process violation.   (Katzberg, supra, at pp. 327-328.)

While the rights protected by the due process clause are significant, the court concluded that in the absence of any other relevant factors supporting a damages remedy for its violation, and particularly because of the availability of a meaningful alternative remedy, there was no constitutional tort remedy for the alleged due process violation.  (Katzberg v. Regents of University of California, supra, 29 Cal.4th at p. 328.)

Miracle Star claims that in this case it had no meaningful alternative remedy and specifically that seeking a writ of mandate to compel the Department to provide it with a hearing would not have been effective.   It argues that “[i]n this case, the Department never gave Miracle Star any determination that it was not entitled to a hearing-it just dragged its feet in providing one.   It would be unduly burdensome to require a plaintiff who seeks an administrative remedy to go to court to force the agency to provide a remedy when the agency has not refused to do so in the first place.”

We disagree.   We see no reason for distinguishing between the agency's refusing to hold a hearing or foot-dragging which delays the hearing for the purpose of determining whether a person has a meaningful remedy.   In either case, the person is being deprived of his right to a timely administrative hearing.   Under the circumstances, Miracle Star could have sought to establish a violation of its due process rights through an action for declaratory or injunctive relief.  (Katzberg v. Regents of University of California, supra, 29 Cal.4th at p. 326.)   By these it could have established its right to an administrative hearing within a certain time period and an order that the Department provide a hearing within the specified period.

As to whether a constitutional tort action would change established tort law, Miracle Star asserts that an action for damages is permitted here because it is tied to a statutory action.   It cites a footnote in Katzberg, in which the Supreme Court declined to “consider the propriety of actions such as those based upon grounds established under common law tort principles-for example, actions for false arrest, false imprisonment, wrongful termination based upon violation of public policy, or the like.   In such actions, a breach of duty or violation of public policy may be established by demonstrating a violation of a constitutional provision, and damages properly may be awarded to remedy the tort.   We consider here only whether an action for damages is available to remedy a constitutional violation that is not tied to an established common law or statutory action.”  (Katzberg v. Regents of University of California, supra, 29 Cal.4th at pp. 303-304, fn. 1.)

In City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077, the court in reliance on Katzberg stated:  “Plaintiffs have alleged no facts tying a state constitutional right to a common law action or a statutory cause of action.”  (Id. at p. 1085.)   It therefore precluded them from suing for damages on a constitutional claim.  (Id. at p. 1086.)

Miracle Star argues that its “constitutional due process claim is directly tied to statutory violations,” specifically violations of the California and federal administrative procedures acts, the California Code of Regulations, the Government Code, the Health and Safety Code, and the federal Civil Rights Act as alleged in its complaint.   In determining whether a constitutional tort should be recognized, the question is not whether the claim is tied to a statutory violation but whether it is “tied to an established common law or statutory action.”  (Katzberg v. Regents of University of California, supra, 29 Cal.4th at p. 304, fn. 1, italics added.)

Miracle Star acknowledges that, allegations of its complaint notwithstanding, by the time of trial it was suing for violations of due process and the Administrative Procedures Act (Gov.Code, § 11340 et seq.).   Miracle Star alleged that the Department violated section 10529 of title 9 of the California Code of Regulations, which provides for extension of the period of licensure.   The jury instructions make clear Miracle Star was claiming a violation of the California Code of Regulations, title 9, section 10544, which sets forth the requirements for a notice of deficiency, and section 10548, which sets forth the procedures for suspension or revocation of a license.

None of these sections provides a right of action for damages.   In fact, section 10548(f) of title 9 of the California Code of Regulations refers to “the licensee's legal right to petition the court to enjoin closure of the facility.”  (Italics added.)   Thus, allowing a constitutional tort action would change established tort law.  (Katzberg v. Regents of University of California, supra, 29 Cal.4th at pp. 327-328.)

As in Katzberg, while the rights protected by the due process clause are significant, in the absence of any other relevant factors supporting a damages remedy for its violation, and particularly because of the availability of a meaningful alternative remedy, there is no constitutional tort remedy for the alleged due process violation.  (Katzberg v. Regents of University of California, supra, 29 Cal.4th at p. 328.)   The trial court therefore erred in denying the Department's motion, either for a directed verdict (Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 395;  see also Margolin v. Shemaria (2000) 85 Cal.App.4th 891, 895) or judgment on the pleadings (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999;  Baughman v. State of California (1995) 38 Cal.App.4th 182, 187).³

DISPOSITION

The judgment is reversed.   The trial court is directed to enter judgment in favor of defendants.   Defendants are awarded their costs on appeal.

We concur:

FOOTNOTES

FN1. Plaintiffs move to strike defendants' opening brief on the ground defendants' statement of facts improperly refers to findings of fact in an administrative decision of which we took judicial notice, but which was excluded from evidence in the trial court.   To the extent defendants cite these findings in reference to their discussion of the facts in this case or rulings based on those facts, we grant plaintiffs' motion.   We cannot consider facts not before the court when determining the correctness of the judgment.  (Cf. Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.).  FN1. Plaintiffs move to strike defendants' opening brief on the ground defendants' statement of facts improperly refers to findings of fact in an administrative decision of which we took judicial notice, but which was excluded from evidence in the trial court.   To the extent defendants cite these findings in reference to their discussion of the facts in this case or rulings based on those facts, we grant plaintiffs' motion.   We cannot consider facts not before the court when determining the correctness of the judgment.  (Cf. Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.)

FN2. “Sober living” clients are no longer in treatment for substance abuse but are receiving assistance in preparation for independent living.   The Department does not have jurisdiction over sober living programs..  FN2. “Sober living” clients are no longer in treatment for substance abuse but are receiving assistance in preparation for independent living.   The Department does not have jurisdiction over sober living programs.

FN3. Inasmuch as the judgment must be reversed and judgment entered in the Department's favor, we need not resolve the Department's remaining contentions..  FN3. Inasmuch as the judgment must be reversed and judgment entered in the Department's favor, we need not resolve the Department's remaining contentions.

WOODS, Acting P. J. ZELON, J.