Date: 08-11-2019

Case Style:

Case Number: A154836

Judge: Pollack, P.J.

Court: California Court of Appeals First Appellate District, Division Four on appeal from the Superior Court, County of Alameda

Plaintiff's Attorney: Andrew Wolff, Tony Ruch and Wortham F. Briscoe

Defendant's Attorney: James T. Diamond, Jr.

Description:
The Housing Authority of the City of Oakland (housing authority), which
administers a federally funded subsidized housing program for the City of Oakland,
appeals a judgment and writ of administrative mandate directing it to vacate its decision
terminating plaintiff Etta Mae Johnson from its program. The housing authority contends
the trial court erred in finding that it violated Johnson’s procedural due process rights in
terminating her from the program. We agree and, accordingly, shall reverse the judgment.
Background
Statutory Background
Section 8 of the Housing and Community Development Act of 1974 (section 8)
(42 U.S.C. § 1437f(o)) is a federally funded and regulated program that provides housing
assistance to financially eligible families. The United States Department of Housing and
Urban Development (HUD), which funds the section 8 program, has enacted regulations
governing the administration of the program by local public housing agencies. The
regulations provide both mandatory and discretionary grounds for termination from the
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program. (24 C.F.R. § 982.552.) Termination is mandatory when a participant has been
evicted from subsidized housing for serious violations of the participant’s lease. (24
C.F.R. § 982.552(b)(2).) Termination is discretionary when a participant violates any
“family obligations” imposed under the program including, as relevant here, committing
“any serious or repeated violation” of the participant’s lease, failing to supply any
information the housing authority determines is necessary in the administration of the
program and promptly giving the housing authority a copy of any landlord eviction
notice. (24 C.F.R. §§ 982.552(c)(1)(i); 982.55l(b)(l), (e) & (g).) In determining whether
to terminate assistance on a discretionary ground, the housing authority “may consider all
relevant circumstances such as the seriousness of the case, the extent of participation or
culpability of individual family members, mitigating circumstances related to the
disability of a family member, and the effects of denial or termination of assistance on
other family members who were not involved in the action or failure.” (24 C.F.R.
§ 982.552(c)(2)(i).)
A person receiving section 8 benefits has an interest in continued receipt of those
benefits that is safeguarded by procedural due process. (Nozzi v. Hous. Auth. (9th Cir.
2015) 806 F.3d 1178, 1192, as amended on denial of rehg. en banc (Jan. 29, 2016), citing
Goldberg v. Kelly (1970) 397 U.S. 254, 267 (Goldberg).) To terminate section 8 housing
assistance, due process requires, among other things, timely and adequate notice of the
reasons for the proposed termination and a written decision following a pre-termination
hearing that states the reasons for the determination and the evidence on which the
decision maker relied. (McCall v. Montgomery Hous. Auth. (M.D. Ala. 2011) 809
F.Supp.2d 1314, 1324, citing Goldberg, supra, at pp. 266-271.) The purpose of the
written notice is “to inform the tenant of the allegations so that he can prepare a defense.”
(Edgecomb v. Hous. Auth. (D. Conn. 1993) 824 F.Supp. 312, 314.) In light of that
purpose, the notice must be “sufficiently specific . . . to enable [the tenant] to prepare
rebuttal evidence to introduce at his hearing appearance.” (Id. at p. 315.) At the hearing,
the hearing officer must determine whether the termination of benefits is in accordance
with the law, federal regulations, and departmental policies and issue a written decision.
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(Cole v. Metro. Council HRA (Minn. Ct.App. 2004) 686 N.W.2d 334, 338.) While “due
process generally requires the decision-maker to state the reasons for his determination
and indicate the evidence upon which he relied . . . the decision need not amount to a ‘full
opinion or even formal findings of fact and conclusions of law.’ ” (McCall, supra, at
p. 1324.) The purpose of the written decision is, in part, to demonstrate that “the
decisionmaker’s conclusion as to the recipient’s eligibility . . . rest[s] solely on the legal
rules and evidence adduced at the hearing.” (Goldberg, supra, at p. 271.)
Similarly, the HUD regulations require a local housing authority to provide
“prompt written notice” of intended termination of benefits. The notice must: “(i) Contain
a brief statement of reasons for the decision; (ii) State that if the family does not agree
with the decision, the family may request an informal hearing on the decision, and
(iii) State the deadline for the family to request an informal hearing.” (24 C.F.R.
§ 982.555(c)(2).) With respect to pre-termination hearings, the HUD regulations
incorporate the Goldberg standard as follows: “ ‘[T]he person who conducts the hearing
must issue a written decision, stating briefly the reasons for the decision.’ ” (McCall v.
Montgomery Hous. Auth., supra, 809 F.Supp.2d at p. 1325, citing 24 C.F.R.
§ 982.555(e)(6).)
Factual and Procedural Background
On February 3, 2015, Johnson’s section 8 landlord served on her a “lease violation
notice” informing her that she had violated the terms of her lease by following another
tenant of the property to his apartment and using profanity. On June 30, 2015, the
landlord issued a “notice to cease” stating that management had received a complaint
from a resident alleging that she had used pepper spray against him. Finally, on February
29, 2016, landlord’s counsel served a “ninety-day notice of termination of tenancy” on
Johnson on the ground that she “continued to be in substantial violation of . . . [her] rental
agreement and continued to be so disorderly as to destroy the peace and quiet of other
tenants of the property.” The notice stated: “[O]n January 19, 2016, management
received a complaint letter from a fellow female resident stating that you had used
profane language and made threats of bodily harm . . . [to] this complaining resident and
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her family members. You further stated to other fellow residents that this complaining
resident had robbed you and broken into your car when you have no evidence to support
these allegations.”
On June 7, 2016, when Johnson failed to vacate, the landlord filed an unlawful
detainer action against her. On August 1, 2016, the action was settled by a stipulation of
the parties. Pursuant to the stipulation, landlord agreed to reinstate Johnson’s tenancy on
the condition that she conform her conduct to the lease for a probationary period of 12
months after which the unlawful detainer action would be dismissed. In the event that
Johnson breached the settlement agreement, landlord retained the right to apply for entry
of judgment based on specified evidence of breach.
On October 12, 2016, the landlord applied for entry of judgment in the unlawful
detainer action. Landlord claimed that Johnson violated the personal conduct
requirements of the stipulation. In support of its application for judgment, landlord
submitted among other things, a declaration by a neighbor who stated Johnson had come
to her apartment, refused to leave when asked, used an expletive, and then poured soda
on her face, and a declaration by a second neighbor who claimed to have witnessed the
incident. On October 20, 2016, the court granted landlord’s application for entry of
judgment and Johnson was evicted on January 19, 2017.
On February 9, 2017, after learning of the eviction, the housing authority served
Johnson with a notice advising her that it wished to discuss the eviction with her. The
notice included a hearing date and requested that Johnson bring with her to the meeting
various items, including the “initial unlawful detainer,” “stay of execution” and “any
further documentation pertaining to [her] eviction.”
The meeting took place on February 21, 2017. Following the meeting, the housing
authority issued the following summary of the meeting:
“We met on 2/21/2017, and discussed the following: [¶] We reviewed the three
attached notices from your landlord dated 2/3/2015, 6/30/2015 and 2/29/2016 which state
that you harassed, threatened, and caused bodily harm to your neighbor(s) that resulted in
your eviction. Additionally, we have a copy of the community incident report in which
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the property manager stated that you followed and harassed him. [¶] You denied all of the
accusations made against you and stated that the landlord continuously made false
statements against you. You further stated that none of the statements made against you
by your neighbors were signed which, according to you, proves that they were
manufactured by your landlord. You stated that your landlord initially took your
neighbors to court before deciding to take you to court. I advised you that we would only
address the documentation we received that pertains to your housing assistance, not your
neighbors’. Additionally, you stated that your neighbors and your landlord were involved
in the hit and run of your vehicle as well as theft from your vehicle and that they wrongly
moved forward with the eviction as you are the one who was wronged. You stated that
your car insurance company has been investigating this matter. You were asked to
provide a statement or other verification of this from your car insurance provider. [¶] I
then informed you that your attorney, Andrew Wolff[], stated during my telephone
conversation with him on 2/8/2017 that he believes that the reason why the court ruled in
favor of your landlord is because one of the several statements made against you were
signed. I advised you that the request for civil harassment restraining orders made against
you by your neighbor . . . were signed and filed on 10/11/2016. You stated that she had
no reason to file for a restraining order and that you wanted to file one against her.
[¶] Moreover, you signed a stipulation on 8/1/2016 in which you agreed to not threaten
people on the premises. You argued that your landlord altered this document by adding
‘with bodily harm or use profane language towards them in a harassing and threatening
manner.’ We discussed that you still signed the initial statement agreeing not to threaten
anyone on the premises. [¶] On 10/20/2016 the judge issued a judgment pursuant to
stipulation which ordered the landlord to recover the unit because you did not abide by
the terms of the stipulation. You stated that you were granted a stay until 2/6/2017.
[¶] Also, you submitted letters to [the housing authority] from your sister and neighbor as
documentation that you are innocent of the allegations made by your landlord and
neighbors. These letters were not used as part of your exhibit in court. [¶] You submitted
[an Oakland Police Department incident report] as proof that you are the victim in the
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dispute between you and your neighbor(s). The report states that there are no known
injuries or witnesses and that there was no force used or observed. [¶] Lastly, your
attorney, Andrew Wolff, advised me that you have filed for an unlawful detainer appeal
but that he does not know what the turnaround time is. [¶] You were reminded of your
participant obligations which state that you must give [the housing authority] a copy of
any eviction notice you receive within 5 days and that you must not engage in violent or
drug-related criminal activity, or other criminal activity that threatens the health, safety,
or right to peaceful enjoyment of the premises by persons living near you. [¶] You were
advised that [the housing authority] will be proposing termination of your housing
assistance but that we will need for you to submit the documentation specified below.”
As a result of this meeting, the housing authority reached the following determinations:
“You are in violation of your participant obligations due to the following: [¶] 1.
Committing serious or repeated violations of your lease agreement resulting in your
eviction [¶] 2. Not providing [the housing authority] with a copy of the eviction notices
within 5 days [¶] 3. Engaging in violent activity that threatened the health, safety, or right
to peaceful enjoyment of the premises by persons living near you.” The summary advises
Johnson to submit to the housing authority by no later than March 29 the “initial unlawful
detainer,” “stay of execution” and “[a]ny documentation to show that you were
wrongfully evicted.”
On April 24, 2017, the housing authority issued a “proposed termination of
section 8 assistance notice” (pre-termination notice) formally notifying Johnson of its
intent to terminate her section 8 benefits. The pre-termination notice is a check-the-box
type form providing additional space for a narrative description of the conduct on which
the proposed termination is based. The housing authority checked the following items as
the basis for its proposed termination of Johnson’s housing assistance: (1) Johnson failed
to supply the housing authority with required information (24 C.F.R. §§ 982.552(c)(l)(i),
982.55l(b)); (2) Johnson failed to supply the housing authority with the required eviction
notice (24 C.F.R. §§ 982.552(c)(l)(i), 982.551(g)); (3) Johnson committed serious and/or
repeated violations of her lease (24 C.F.R. §§ 982.552(c)(l)(i), § 982.55l(e)); and (4)
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Johnson was evicted for committing serious and/or repeated violations of the lease (24
C.F.R. § 982.552(b)(2)). The notice explained, “You violated the family obligations by
committing serious and/or repeated violations of your lease agreement, failing to submit
the eviction notices within 5 days, and failing to provide additional information necessary
to administer the section 8 program.” It continued, “You failed to submit the following
eviction notices to [the housing authority] within 5 days: Unlawful detainer for case #RG
16818543, and the corresponding summons and writ of possession. On 2/9/2017, you
were requested to submit the unlawful detainer and all other eviction documentation at
the meeting scheduled on 2/21/2017. You failed to submit these requested documents. On
3/15/17 you were again requested to submit a copy of the unlawful detainer by
3/29/2017. You did not submit a copy of this eviction notice as required by the
participant obligations.” The notice advised Johnson that her assistance would terminate
effective May 24, 2017 and that she could appeal the decision by making a request for an
informal hearing.
Johnson made a written request for an informal hearing, which took place on May
23, 2017. At the hearing, the housing authority submitted numerous documents in support
of its termination decision, including the landlord’s notices and the community incident
report referenced in the meeting summary and the judgment entered in the unlawful
detainer action. According to the hearing officer’s decision, “a representative of [the
housing authority] testified that Ms. Johnson violated her family obligation by
committing serious and/or repeated violations of her lease agreement [and] also failed to
submit the eviction notices within 5 days . . . . [¶] Furthermore, Ms. Johnson was evicted
from her unit effective January 19, 2017.” Johnson testified and also presented
documentary evidence in support of her defense. According to the hearing officer’s
written decision, “Johnson testified that she was a good resident and that folks in her
building, including her daughter, made false allegations about her to apartment
management which led to her eviction. She also claimed that the property manager was
corrupt and . . . conspired with residents in the building to get her evicted.” The hearing
officer observed that “[m]ost of Ms. Johnson’s testimony was not germane to the
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informal hearing. She brought up many issues that had occurred in the past or simply was
not relevant to the issues that she was facing related to her possible termination.”
Ultimately, the hearing officer concluded, based on the evidence presented at the hearing,
that Johnson was “evicted from her residential unit and that she failed to notify the . . .
housing authority of her eviction,” that she “never offered a reason as to why she did not
notify the [housing] authority that she was facing eviction from her subsidized rental
unit” and, therefore, that the preponderance of the evidence supported the housing
authority’s decision to terminate Johnson from the section 8 program.
Johnson requested an informal review of the hearing officer’s decision. The
housing authority’s executive director upheld the termination of Johnson’s housing
assistance, finding that Johnson “violated the following program rules and obligations:
[¶] 1. Failed to supply the housing authority with required information. [24 C.F.R.
§] 982.552(c)(l)(i)[;] [¶] 2. Committed serious and repeated violations of your lease. [24
C.F.R. §] 982.552(c)(l)(i)[; and] [¶] 3. Evicted for serious and repeated violations of the
lease. [24 C.F.R. §] 982.552(b)(2).” No additional explanation was provided.
Thereafter, Johnson filed the present action seeking a writ of mandate. She argued
that the pre-termination notice violated her due process rights because it did not
adequately inform her of the allegations against her so she could prepare a defense with
rebuttal evidence. She also argued that the hearing officer failed to proceed in a manner
required by law by terminating her section 8 voucher without recognizing its discretion to
consider mitigating circumstances.
The trial court entered judgment in Johnson’s favor directing the housing authority
to set aside its decision and reconsider whether to terminate Johnson from the section 8
program. The court found that the pre-termination notice was deficient because it did not
provide any of the facts regarding the alleged lease violations and failed to identify what
“additional information” Johnson failed to provide. The court also found that the
decisions by the hearing officer and executive director were inadequate because they
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failed to identify the factual basis for their decisions or the reasons for the exercise of
discretion regarding the non-mandatory grounds for termination.1
The housing authority timely filed a notice of appeal.
Discussion
1. Standard of Review
Section 1094.5 of the Code of Civil Procedure governs judicial review by
administrative mandate of a 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 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.) 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.)
2. Adequacy of the Pre-termination Notice
The parties dispute what documents this court should consider in measuring the
adequacy of the notice given to Johnson prior to her termination from the program.
Johnson contends the trial court properly considered only the April 24 pre-termination
notice. The pre-termination notice properly advised Johnson that she was being

1
Johnson’s petition also argued that she was denied the opportunity to cross-examine the
witnesses against her in violation of her due process rights. The trial court considered this
argument moot in light of its decision to grant the petition on other grounds. Johnson has
not reasserted this argument on appeal.
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terminated from the program based on her failure to submit to the housing authority in a
timely manner the judgment in the unlawful detainer case and the corresponding
summons and writ of possession. The trial court correctly observed, however, that the
notice failed to sufficiently apprise Johnson of the additional grounds for her termination
from the program. While the notice indicates that Johnson committed serious and/or
repeated violations of her lease agreement, it fails to indicate the dates or details of the
purported violations.
The housing authority argues that in determining the adequacy of the notice, the
court should also have considered what transpired at the February 21, 2017 meeting and
the written meeting summary that was provided Johnson one month before the formal
notice. The housing authority relies on Goldberg, supra, 397 U.S. at page 268, in which
the court upheld a system which conveyed notice similar to that used by the housing
authority in this case. In Goldberg, the court explained, “New York employs both a letter
and a personal conference with a caseworker to inform a recipient of the precise
questions raised about his continued eligibility. Evidently the recipient is told the legal
and factual bases for the Department’s doubts. This combination is probably the most
effective method of communicating with recipients.” (Ibid.)
In Driver v. Housing Authority (2006) 289 Wis.2d 727 (Driver), cited by Johnson,
the court recognized that while “Goldberg might allow for ‘actual or constructive
notice,’ ” the federal regulations adopted to implement the section 8 program
“contemplated ‘an arguably higher standard of “what process is due.” ’ ” (Id. at p. 743,
citing Morales v. McMahon (1990) 223 Cal.App.3d 184, 190.) The court explained that
the federal regulations “mandate written notice, and strict compliance is imperative as a
matter of law and public policy.” (Driver, at p. 732.) The court explained, “Because of
the informality surrounding the pre-termination hearing process, courts may have little or
no record upon which to ascertain the sufficiency of oral or other actual notice. . . . Faced
with such a sparse record, a section 8 recipient who attempts to establish that he or she
did not receive oral notice faces a nearly insurmountable task. Courts would likely infer
actual notice in many cases from the mere opportunity of the plaintiff to discover the
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pertinent information (i.e., constructive notice) combined with the housing authority’s
assertion that he or she in fact exercised that opportunity, at which time it provided oral
notice. Thus, an ‘actual notice’ exception would not adequately protect a section 8
recipient’s property right in his or her benefits.” (Id. at pp. 744-745.)
Assuming that Driver is correct that the Goldberg system of notice fails to comply
with the federal regulation because there is no written record of the oral consultation, the
written meeting summary provided in this case resolves that concern. In Driver, there
were “no records of the administrative proceedings . . . from which to ascertain how
much the plaintiffs knew about the claims against them.” (Driver, supra, 289 Wis.2d at
p. 744.) Here, the summary provides a written record of the consultation and sets forth
the factual basis for the lease violations relied on by the housing agency in terminating
her from the program. The summary was drafted and appears to have been mailed to
Johnson more than a month before the pre-termination notice. The summary coupled with
the pre-termination notice was sufficient to enable Johnson to prepare her defense.2
(See
Rosen v. Goetz (6th Cir. 2005) 410 F.3d 919, 931 [“Due process does not require
‘reasonably calculated’ notice to come in just one letter, as opposed to two.”].)
Accordingly, Johnson was given sufficient notice of these grounds for termination
of her benefits: she failed to supply the housing authority with required eviction notice;
she committed serious and/or repeated violations of her lease; and she was evicted for
committing serious and/or repeated violations of the lease.
3. Adequacy of the written decision
The housing authority’s “notice of decision” is divided into multiple subsections.
An introductory section sets forth the three grounds for the proposed termination and
identifies the participants at the hearing. As set forth above, the “summary of

2 The trial court also found that the notice failed to identify what “additional information
necessary to administer the section 8 program” Johnson failed to provide. Because the
meeting summary adds little information to this ground, we agree that Johnson’s
termination could not properly be based on this ground. The failure, however, is not
prejudicial as the remaining grounds amply support the termination.
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evidence/testimony” subsection includes a summary of the testimony given by the
participants and lists the 12 exhibits relied on by the hearing officer. Finally, the “hearing
decision” subsection reads in relevant part as follows: “Based on the clear evidence
presented at the informal hearing by [the housing authority’s representative] it is clear
that Ms. Etta Johnson was evicted from her residential unit and that she failed to notify
the . . . housing authority of her eviction. [¶] During her testimony, Ms. Johnson never
offered a reason as to why she did not notify the Authority that she was facing eviction
for her subsidized residential unit. [¶] Therefore, upon review of the evidence presented
in the hearing, it is determined that the preponderance of the evidence does support the
Housing Authority’s decision to terminate Ms. Etta Johnson from the section 8 program.
It is determined that the Oakland Housing Authority’s decision to terminate Ms.
Johnson[] from [the section 8 program] is UPHELD.”
The parties disagree whether the above notice reflects a decision to uphold the
termination of Johnson from the program on each of the proposed grounds or merely on
her failure to supply the housing authority with the required eviction notice. The
distinction is significant because termination is mandatory under a finding that she was
evicted for committing serious and/or repeated violations of the lease but merely
discretionary under the remaining two findings. Although there is some ambiguity in the
hearing officer’s written decision, read as a whole we believe the decision upholds the
termination on each of the identified grounds. Moreover, even if the decision should be
read narrowly as Johnson suggests, the single ground is sufficient to comply with due
process.
As set forth above, due process in this instance required the hearing officer to
issue a written decision, stating briefly the reasons for the decision sufficient to advise the
recipient of the basis for her termination from the program and to allow judicial review.
Contrary to Johnson’s argument, the summary of evidence sufficiently identifies the four
incidents that support the lease violations that led to her eviction and the documents on
which the hearing officer relied in finding that she had repeatedly violated her lease. The
repeated violations were serious, so that that Johnson was properly evicted for the lease
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violations. Because termination from the program was mandatory on this ground, no
further explanation was required.
Assuming that the notice of decision is interpreted to uphold the termination based
solely on Johnson’s failure to timely notify the housing authority of her eviction, contrary
to Johnson’s argument, the decision comports with the requirements of due process.
Johnson is correct that a “hearing officer’s failure to make any findings, coupled with his
failure to indicate any awareness that he was explicitly authorized by HUD to exercise his
discretion to take into account relevant circumstances” is contrary to established law.
(Carter v. Lynn Hous. Auth. (Mass. 2008) 880 N.E.2d 778, 786-787.) Here, however, the
second paragraph of the decision quoted above demonstrates that the hearing officer was
aware of the housing authority’s discretion to excuse the violation but nonetheless chose
not to exercise that discretion in Johnson’s favor. As the hearing officer noted, Johnson
did not attempt to justify or excuse her failure to notify the housing authority of her
eviction. Nor did she offer any evidence or argument regarding mitigating circumstances.
Although the termination of services undoubtedly may result in a significant hardship for
Johnson, nothing in the record suggests that the hardship is significantly different from
the hardship that most other recipients of housing assistance suffer when their benefits
are terminated. Nothing in the record demonstrates that the hearing officer abused its
discretion in refusing to excuse the violation.
Accordingly, we must reverse the trial court’s order granting the petition for writ
of mandate.

Outcome: The judgment is reversed and the matter remanded with directions to enter
judgment denying the petition for writ of mandate.

Plaintiff's Experts:

Defendant's Experts:

Comments: