Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG09458711.
Sepulveda, J.
Respondent California Department of Social Services (Department) revoked the daycare license of appellant Donna Zimmerman after she failed to respond to notice of allegations of wrongdoing against her. Appellant requested that the default be set aside on the ground that she did not receive the notice that was mailed to her. The Department denied the request, and the trial court thereafter denied appellant’s petition for a writ of mandate challenging the denial. Appellant argues that the trial court applied the wrong standard of review when considering the Department’s decision, that both the Department and the trial court failed to consider the applicable statutory grounds for relief, and that the Department’s decision was not supported by sufficient evidence. We affirm.
I. Factual and Procedural
Many of the facts are taken from the administrative record, which was not included in the record on appeal but which was transferred from the trial court to this court on September 24, 2010. (Cal. Rules of Court, rule 8.240.)
The Department is responsible for regulating daycare providers. (Health & Saf. Code, § 1596.70 et seq.) The agency is authorized to license such providers, and it may suspend or revoke the license of a licensee who has been found to have committed misconduct. (Health & Saf. Code, §§ 1596.78, subd. (a), 1596.80, 1596.816, 1596.885, 1596.887.) Appellant was licensed to operate a child daycare home in Fairfield, starting in June 2001.
Government Code section 11505 provides the method for service of an accusation of violation in administrative proceedings such as the Department’s. (Health & Saf. Code, § 1596.887, subd. (a).) Government Code section 11505, subdivision (c), provides that no order adversely affecting a party shall be made by an agency “unless the respondent shall have been served personally or by registered mail as provided herein.... Service by registered mail shall be effective if a statute or agency rule requires the respondent to file the respondent’s address with the agency and to notify the agency of any change, and if a registered letter containing the accusation and accompanying material is mailed, addressed to the respondent at the latest address on file with the agency.”
The Department prepared an accusation dated March 11, 2009, alleging that appellant had violated the personal rights of children in her care facility by placing them in excessive “time outs, ” “smacking” them as a form of discipline, and making them sit on their knees with their hands at their sides and their heads down for as long as an hour. The Department sent the accusation by certified mail to appellant at her Fairfield address on file with the Department. The Department contends, and appellant has never disputed, that the agency properly served notice of the accusation pursuant to Government Code section 11505. The accusation was returned to the Department as unclaimed, and appellant did not timely respond to it.
On April 16, 2009, the Department determined that appellant was in default by failing to file a response, and that she thereby waived the right to a hearing to contest the merits of the accusation. (Gov. Code, §§ 11505, subd. (a) [failure to file notice of defense constitutes waiver], 11520, subd. (a) [if party defaults, agency may take action without any notice to party].) The Department also found that all factual allegations in the accusation were true, and it revoked appellant’s license.
Appellant thereafter filed a request to set aside the Department’s decision and order pursuant to Government Code section 11520, subdivision (c), which provides that within seven days after service of a decision based on a party’s default, the party may request that the decision be set aside in the agency’s discretion upon a showing of good cause, which includes failure of the person to receive notice served pursuant to section 11505. Appellant claimed that she never received the accusation from the Department, or any notice that the accusation was waiting for her at the post office.
Appellant also requested a stay of the license revocation, which was denied.
In support of her request to set aside the default, appellant submitted the following evidence:
Her own declaration stating that she did not receive the accusation, that she received no notification from the post office of any certified letter before she received the Department’s order dated April 16, 2009, revoking her license, and that she “would never take a chance with [her] Daycare by not accepting a letter.”
Declarations from two people who helped appellant at her daycare (a bookkeeper and appellant’s son); they both reported that they would have signed for a notice of certified letter if appellant was not available, but that they received no such notice in March 2009.
A letter from a customer service supervisor at the Fairfield post office stating that the post office’s database did not show that the certified letter to appellant had ever been “delivered or attempted at her residence.” The supervisor attached tracking information showing that the letter was returned as unclaimed, with no further information. She explained: “If the item was notified [sic] or delivered by the mail carrier, there would be a scan stating so, as well as the unclaimed scan.”
A declaration from appellant’s mail carrier stating that she did not recall delivering a certified letter to appellant around the time it was mailed and delivery was supposedly attempted.
The Department opposed the request to set aside the default, arguing that appellant had not established good cause entitling her to relief. It submitted the envelope that was sent by certified mail to appellant. The envelope is stamped “MAR 12 2009” in the bottom right-hand corner, and two handwritten notations (“3/16” and “Ret 3/27”) appear under the date stamp. The Department also submitted a declaration from a senior staff counsel stating that the attorney had visited the Fairfield post office, but that the customer service supervisor who had provided a letter to appellant was unavailable. The attorney spoke instead with a business account specialist, who examined the unclaimed envelope that had been mailed to appellant. The specialist explained that, based on a review of the date stamp and handwritten notes on the envelope, she could tell that there were two attempts to deliver the certified letter to appellant (on March 12 and March 16), before the letter was returned to the Department as unclaimed on March 27.
The Department denied the request to set aside and vacate the default decision, stating that “it is found from the evidence that [appellant] has failed to establish inadequate notice... or any other good cause for relief.”
Appellant, who was represented by counsel, filed a petition for a writ of mandate in the trial court pursuant to Code of Civil Procedure section 1085, seeking to compel the Department to set aside its default. She again argued that she had shown good cause why the Department should set aside the default, because the post office in Fairfield did not try to deliver the accusation to her. (Gov. Code, § 11520, subd. (c)(1).) Appellant alleged that it was appropriate to seek relief pursuant to Code of Civil Procedure section 1085, stating that it was a procedure commonly used to review quasi-judicial agency decisions. Providing a citation regarding traditional mandamus review (Code Civ. Proc., § 1085), appellant argued that the Department “committed a prejudicial abuse of discretion, ” that its order denying her motion to set aside her default was “not supported by the evidence, ” and that the Department’s action “was arbitrary and entirely without evidentiary support, and did not conform to the legally required procedures.” (Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1004 [“trial court’s inquiry in a traditional mandamus proceeding is limited to whether the local agency’s action was arbitrary, capricious, or entirely without evidentiary support, and whether it failed to conform to procedures required by law”].)
Appellant first proceeded ex parte, then filed a notice of hearing after the trial court denied her ex parte petition without prejudice to noticing a hearing on the petition.
Code of Civil Procedure section 1085, subdivision (a), provides that “[a] writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.”
In its opposition to appellant’s petition, the Department stated that the court had to determine whether review should be by traditional or administrative mandamus, and that it agreed with appellant that review should be by traditional mandamus. It argued that review was limited to whether the Department acted arbitrarily in denying appellant’s motion to set aside the default. In her reply brief, appellant argued that the evidence she provided to the Department justified setting aside her default, and that the agency’s denial of her motion for relief was “arbitrary and capricious”; however, she did not further address the appropriate form of mandate by which to seek relief, or the applicable standard of review to be used by the trial court.
At the hearing on the writ petition, appellant’s counsel argued that “[t]he standard of proof is 51 percent, more likely than not, preponderance of the evidence.” The trial court disagreed, stating that “my review of an appeal is not to make an evaluation of preponderance of the evidence but to determine it by whether there’s substantial evidence and whether the decision was an abuse of discretion based on the evidence, ” which is consistent with what appellant had argued in her briefs. Although appellant’s counsel disagreed with the trial court’s view of the evidence, he did not otherwise argue that a different standard of review of the Department’s decision was appropriate.
The trial court denied the petition for a writ of mandate, and appellant timely appealed from the subsequent judgment.
II. Discussion
A. Standard of Review in Trial Court.
Appellant, represented by different counsel on appeal, argues for the first time in this litigation that the trial court should have exercised its “independent judgment” when reviewing the Department’s decision, and that the trial court committed reversible error by applying an incorrect standard of review. To put appellant’s argument in the proper context, we summarize the applicable procedures for seeking review of agency actions.
Judicial review of most decisions by public agencies is obtained by a proceeding for traditional mandamus (Code Civ. Proc., § 1085) or administrative mandamus (Code Civ. Proc., § 1094.5; Fukada v. City of Angels (1999) 20 Cal.4th 805, 810). (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1785 (McGill).) “The applicable type of mandate is determined by the nature of the administrative action or decision. [Citation.] Usually, quasi-legislative acts are reviewed by [traditional] mandate and quasi-judicial acts are reviewed by administrative mandate. [Citation.] [¶] ‘Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts.’ [Citation.]” (Ibid.) Traditional mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing. (Ibid.) By contrast, administrative mandamus is appropriate for inquiry into the validity of final administrative orders made as the result of a proceeding “in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal....” (Code Civ. Proc., § 1094.5, subd. (a).)
“ ‘There are subtle differences in the scopes of judicial review for [traditional] and administrative mandate. In general, when review is sought by means of [traditional] mandate the inquiry is limited to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support....’ ” (McGill, supra, 44 Cal.App.4th at p. 1786.) By contrast, in administrative mandamus, the standard of review turns on whether a fundamental vested right was at issue. A trial court may issue a writ of administrative mandamus where an agency has committed a prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).) Abuse of discretion is established if the findings of the agency are not supported by the evidence. (Ibid.) Where an administrative decision does not involve a fundamental vested right, “abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c); San Marcos Mobilehome Park Owners’ Assn. v. City of San Marcos (1987) 192 Cal.App.3d 1492, 1499-1500.) “When an administrative decision substantially affects a fundamental vested right, such as the revocation of a professional license, the independent judgment standard of review applies. [Citations.] The superior court must examine the administrative record for errors of law and exercise its independent judgment upon the evidence. [Citations.]” (Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 967, fn. 1, italics added.) An exercise of independent judgment requires the trial court to reweigh the evidence and examine the credibility of witnesses. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 654, 658.)
Appellant sought review of the Department’s decision pursuant to Code of Civil Procedure section 1085, and she specifically requested below that the decision be reviewed pursuant to the standard of review applicable in traditional mandamus. Although she acknowledges on appeal that this is an action in traditional mandamus, she argues for the first time in this litigation that independent judgment review (applicable in administrative mandamus actions where a fundamental vested right is at issue) was appropriate here, because she had a fundamental vested right in her daycare license.
The trial court could have treated the writ petition as one in administrative mandamus, even though it was filed pursuant to Code of Civil Procedure section 1085 (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 813-814); however, it clearly did not do so, perhaps because it was undisputed that traditional mandamus review was appropriate. A review of the record reveals that the court apparently never considered whether administrative mandamus was appropriate, even though respondent argued in passing that this was an issue to be decided. It is unsettled whether a party who sought one type of writ in the trial court to challenge an agency decision may argue for the first time on appeal that the trial court should have construed the party’s petition as seeking a different type of writ. (Compare California Teachers Assn. v. Governing Board (1977) 70 Cal.App.3d 833, 844 [defect cannot be raised for first time on appeal; any error in mislabeling writ was harmless] with Eureka Teachers Assn. v. Board of Education (1988) 199 Cal.App.3d 353, 366 [where parties proceeded under wrong writ of mandate, reviewing court should determine whether trial court considered appropriate evidence and applied appropriate standard of review].) Here, however, appellant does not claim that her writ petition was mislabeled below, only that the trial court should have applied a different standard of review when evaluating the agency’s action. (Moomjian v. Zolin (1993) 12 Cal.App.4th 1606, 1611, fn. 6 [where party concedes he could seek traditional mandamus relief, proceeding under wrong section does not justify reversal.)
We agree with appellant that she had a fundamental vested right in her daycare license. There is no question that, had appellant not waived her right to a hearing by failing to respond to the accusation, she would have been entitled to an evidentiary hearing as part of license revocation proceedings against her (Health & Saf. Code, § 1596.887, subd. (a); Gov. Code, § 11513, subd. (b)), a prerequisite to challenging an agency proceeding by way of writ of administrative mandate. (§ 1094.5, subd. (a) [administrative mandamus appropriate where party seeks writ for purpose of challenging validity of administrative action “made as the result of a proceeding in which by law a hearing is required to be given [and] evidence is required to be taken”]; McGill, supra, 44 Cal.App.4th at p. 1785.) The Department would have had to prove the allegations against appellant by a preponderance of the evidence. (Health & Saf. Code, § 1596.887, subd. (b).) There can be no dispute that, had the Department revoked her license following such an evidentiary hearing, the proper procedure to challenge the ruling would have been by way of administrative mandamus, with the trial court exercising its independent judgment on the Department’s ruling. (Adamson v. Department of Social Services (1988) 207 Cal.App.3d 14, 18-19 [revocation of daycare license].)
Here, by contrast, as both parties have consistently maintained, the Department was not required before ruling on appellant’s motion for relief from default to hold an evidentiary hearing. (Gov. Code, § 11520, subd. (c) [agency may grant a hearing upon party’s showing of good cause]; Evans, supra, 21 Cal.App.4th at p. 973 [agency has discretion to decline to hold hearing regarding whether party received notice].) Instead, the Department was asked to set aside appellant’s default upon a showing of good cause, a decision that was by statute discretionary. (Gov. Code, § 11520, subd. (c) [“agency in its discretion may vacate the decision, ” italics added].) At the point when appellant applied for relief from default, her license already had been revoked. She was therefore somewhat similarly situated to an applicant for reinstatement of a license. People who apply for reinstatement do not possess a fundamental vested right in a license, and are therefore not entitled to independent review of application denials. (Flanzer v. Board of Dental Examiners (1990) 220 Cal.App.3d 1392, 1396-1397; Crandell v. Fox (1978) 86 Cal.App.3d 760, 763-764.)
Different courts considering an agency’s denial of a licensee’s motion for relief from default have analyzed the issue under different writ procedures, without addressing why the procedure pursued by the parties was appropriate. However, none of these cases stated that an independent judgment standard of review was appropriate. (Miller Family Home, Inc. v. Department of Social Services (1997) 57 Cal.App.4th 488, 491 [party sought traditional writ of mandate after denial of relief from default; decision reviewed under arbitrary and capricious standard]; Baughman v. Medical Board (1995) 40 Cal.App.4th 398, 399-400 [party sought relief in administrative mandamus after denial; appellate court considered legal question whether notice statute complied with due process]; Evans, supra, 21 Cal.App.4th at pp. 965, 976-977 [party sought relief in administrative mandamus; trial court not permitted to exercise independent judgment on evidence not submitted to agency pursuant to § 1094.5, subd. (e)]; see also Cal. Administrative Hearing Practice (Cont.Ed.Bar 2d ed. 2010) Respondent’s Rights and Options, § 4.54, p. 231 [party’s remedy where agency refuses to set aside default is to allege “abuse of discretion” pursuant to Code Civ. Proc., § 1094.5; applicable standard of review not specified].)
Even assuming arguendo that the trial court was required to exercise its independent judgment, appellant would be barred from complaining on appeal that the trial court erred, under the doctrine of invited error. “The ‘doctrine of invited error’ is an ‘application of the estoppel principle’: ‘Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal’ on appeal. [Citation.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) Appellant sought review by traditional mandamus, specifically argued below that review by this procedure was appropriate, and advocated that the trial court apply the standard of review applicable in traditional mandamus. On appeal, relying on cases addressing administrative mandamus actions (e.g. Bixby v. Pierno (1971) 4 Cal.3d 130), she argued in her opening brief that independent judgment review was appropriate because she had a fundamental vested right in her daycare license, without ever explaining why independent judgment review was appropriate notwithstanding the fact that (1) she was not entitled to an evidentiary hearing on her motion for relief from default (cf. Code Civ. Proc., § 1094.5, subd. (a)), (2) she brought her action by way of traditional mandamus, acknowledging below that this type of review was appropriate where a party challenges agency action when a hearing was not required, and (3) advocated a different standard of review below. Although appellant addressed in her reply brief why independent judgment review should be applied in a traditional mandamus action, she failed to acknowledge that she never requested independent judgment review below. (Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 351 [failure to raise issue in trial court and opening brief “doubly waive[s]” argument]; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [points raised for first time in reply brief will not be considered absent good cause].) Because appellant’s conduct induced any alleged error here, we conclude that the trial court did not commit reversible error by not exercising its independent judgment.
Appellant’s attorney stated at the hearing on her writ petition that “obviously we’re here to discuss the weight of the law [sic]. The standard of proof is 51 percent, more likely than not, preponderance of the evidence.” Appellant claims that this statement shows that she “correctly argued to the trial court that it was required to review the Department’s decision independently by employing a ‘preponderance of the evidence’ standard.” We are not persuaded that a reference to a certain standard of proof was an argument that the trial court should use an “independent judgment” standard of review, especially in light of the fact that appellant’s written submissions to the trial court never advocated (or even mentioned) that the trial court exercise its independent judgment.
B. Appellate Review of Trial Court’s Denial of Writ Petition.
The question remains what standard of review this court uses in reviewing the trial court’s denial of appellant’s petition for a writ of mandate pursuant to Code of Civil Procedure section 1085. As set forth above, in traditional mandamus actions, the trial court’s review “ ‘is limited to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support.’ ” (McGill, supra, 44 Cal.App.4th at p. 1786.) “In [traditional] mandamus actions, the trial court and appellate court perform the same function.” (Ibid.; see also Golden Drugs Co., Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1465 [where trial court makes no new factual findings in traditional mandamus action, review of agency decision is same as that of trial court].)
Citing Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1340, fn. 3, respondent contends that there is a split in authority as to whether an appellate court reviews the agency’s decision, or whether it reviews the trial court’s judgment for substantial evidence. A review of the applicable cases, however, reveals no true split. Although it is true that in traditional mandamus actions, a reviewing court reviews a trial court’s factual findings for substantial evidence (e.g., American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 261; Johnston v. Sonoma County Agricultural Preservation & Open Space Dist. (2002) 100 Cal.App.4th 973, 984), here, the trial court made no factual findings. Instead, as it stated at the hearing, it merely reviewed the Department’s decision “to determine... whether there’s substantial evidence and whether the decision was an abuse of discretion based on the evidence.”
Because our review of the agency decision is the same as the trial court’s, our review is limited to whether the decision “ ‘was arbitrary, capricious, or entirely lacking in evidentiary support.’ ” (McGill, supra, 44 Cal.App.4th at p. 1786, italics added.) Appellant invokes the substantial evidence test, however, and respondent acknowledges that it may apply. We note that “the question whether agency action is ‘entirely lacking in evidentiary support’ is not the same as a substantial evidence test.” (Golden Drugs Co., Inc. v. Maxwell-Jolly, supra, 179 Cal.App.4th at p. 1466.) We also “recognize that not everyone acknowledges a distinction between ‘devoid of evidentiary support’ and ‘substantial evidence.’ ” (Id. at p. 1467, and cases cited therein.) However, in the present case it does not matter which standard of review is applied. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1641, fn. 10 [court need not consider argument regarding appropriate form of mandate where result not affected by distinction between two standards of review].) As explained below, under the facts of this case, the result would be the same whether this court reviews the Department’s decision to determine whether it is entirely lacking in evidentiary support, or whether it is not supported by substantial evidence.
C. Motion for Relief From Default.
Even if the substantial evidence standard of review is applied, the Department’s decision is supported amply by the evidence presented below, and the agency did not act arbitrarily or capriciously in declining to set aside appellant’s default. Appellant acknowledges that she was properly served with the accusation against her pursuant to Government Code section 11505, a method of service that complies with due process. (Evans, supra, 21 Cal.App.4th at p. 971.) Actual notice is not required under the statute. (Ibid.; Miller Family Home, Inc. v. Department of Social Services, supra, 57 Cal.App.4th at p. 492.)
Appellant sought relief from default pursuant to Government Code section 11520, subdivision (c), which provides that an agency “in its discretion may vacate the [default] decision and grant a hearing on a showing of good cause. As used in this subdivision, good cause includes, but is not limited to, any of the following: [¶] (1) Failure of the person to receive notice served pursuant to Section 11505. [¶] (2) Mistake, inadvertence, surprise, or excusable neglect.” Appellant focuses primarily on the first example of good cause, failure to actually receive notice.
We first reject appellant’s argument that the trial court and the Department failed to analyze whether appellant made a showing of good cause pursuant to Government Code section 11520, subdivision (c), and focused instead solely on whether she was properly served pursuant to section 11505. As for the Department, its order denying appellant’s motion to set aside and vacate the default specifically stated that it found that appellant had “failed to establish inadequate notice, mistake, inadvertence, surprise, or excusable neglect, or any other good cause for relief.” (Italics added.) The order tracked the language of section 11520, subdivision (c), and in that context, it is clear that the Department considered whether appellant actually received notice, and did not focus solely on whether service was proper.
As for the trial court’s consideration of the issue, it is abundantly clear from a review of the transcript of the hearing on appellant’s writ petition that the court considered whether appellant had established good cause to set aside the default pursuant to Government Code section 11520, subdivision (c). The court stated, “It’s really the issue of setting aside [the default]. Nobody would quarrel that making the default was something that should have been done; it’s just when somebody says to undo that because A, B and C. That’s really the issue I’m confronted with, whether that would have been an abuse of discretion or done with a lack of substantial evidence.” The court focused extensively on the evidence that was presented to the Department regarding whether appellant actually received notice, and the inferences to be drawn from that evidence. Although it is true that the trial court’s subsequent order denying the writ petition discussed whether appellant was properly served in the first place (§ 11505), it is clear from the trial court’s oral comments that the court focused on whether there was proper service in the context of determining whether appellant had established good cause pursuant to section 11520. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646 [court’s comments may be valuable in illustrating trial judge’s theory].)
The court’s order states: “The tentative ruling is affirmed as follows: The petition of Donna Zimmerman for Writ of Mandate is DENIED. The court is persuaded that Respondent Department of Social Services mailed the packet, including the Accusation and Notice of Defense, to Petitioner in compliance with Government Code section 11505. As such, the court cannot conclude that Respondent acted arbitrarily and capriciously and lacked evidentiary support in denying Petitioner’s motion to set aside the default.”
Even assuming arguendo that the trial court did not consider whether appellant had established good cause to set aside the default pursuant to Government Code section 11520, we emphasize that “we will affirm a judgment correct on any legal basis, even if that basis was not invoked by the trial court. [Citation.] There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct. [Citation.]” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 269.) Because in mandamus actions “we review the matter without reference to the trial court’s actions” (McGill, supra, 44 Cal.App.4th at p. 1786), the trial court’s reasoning has no conclusive effect on this court. (Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 233 [in review of mandamus proceeding, appellate review precludes any possibility of prejudice from trial court error because courts perform same function].)
As for the evidence submitted to the Department, appellant argues that she “provided consistent and uncontradicted factual support establishing that she did not receive, and could not have received the package, nor had any knowledge of its existence.” Even assuming arguendo that was true, it does not necessarily follow that the Department was required as a matter of law to set aside appellant’s default, as appellant claims. Government Code section 11520, subdivision (c), provides that the agency “in its discretion may vacate” a default decision upon a showing of good cause. (Italics added.) Here, the Department acted within its discretion in denying appellant relief, because it had evidence that the post office did, in fact, attempt to deliver the accusation to appellant before the certified letter was returned as unclaimed, raising a reasonable inference that appellant attempted to avoid service.
Appellant criticizes the evidence that the Department provided showing that the postal service attempted delivery, claiming that the declaration provided by Department counsel regarding her conversation with a business account specialist “contains hearsay statements from an admittedly incompetent witness.” Even if this court disregards counsel’s declaration regarding her conversation with a postal worker, we agree with the trial court that the envelope containing the accusation (which was authenticated by the Department and included in the administrative record) sufficiently supports an inference that the post office attempted delivery, because the envelope has a stamped date and two handwritten dates on it. As the trial court observed, “It’s right here on the face of this envelope. It’s got dates there, and I know what happens when somebody mails certified mail.”
Moreover, the evidence that appellant submitted to the Department is not as overwhelming as she claims on appeal. She points to the unsworn letter from a customer service supervisor stating that the post office’s database did not show that the certified letter to appellant had ever been delivered or attempted at her residence. However, as the trial court observed, “[Y]ou know, we scan documents all the time in court. I have a great deal of experience with that. There are many, many instances where the scanning doesn’t work and something doesn’t get scanned in.” In other words, even if a record of a delivery attempt was not “scanned, ” it does not necessarily follow that delivery was not actually attempted. The postal supervisor did not explain the dates on the envelope that was mailed to appellant, and it does not appear that appellant gave her an opportunity to do so.
Appellant characterizes the letter from the supervisor as a “sworn statement.” However, nowhere in the letter did the supervisor recite that the letter was “certified or declared by... her to be true under penalty of perjury.” (Cf. Code Civ. Proc., § 2015.5.)
Appellant also directs this court to the sworn declaration from her mail carrier, who said that she worked on the days that appear on the face of the envelope from the Department, but did not remember delivering a certified letter to appellant around that time. As the trial court observed, “I look at a lot of mail. I don’t remember every piece of mail. And if you want to tell me a mailman is going to remember every piece of mail they deliver or don’t deliver, I’ve got to tell you that’s really stretching it.” It may be true that appellant provided more evidence of failure to receive notice than the licensees who defaulted in Miller Family Home, Inc. v. Department of Social Services, supra, 57 Cal.App.4th 488, and Evans, supra, 21 Cal.App.4th 958. However, the Department did not act arbitrarily or capriciously when it denied appellant relief from default.
III. Disposition
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: Reardon, Acting P.J., Rivera, J.