October 2020 Update
The current update includes changes throughout this publication that reflect recent developments in case law, legislation, court rules, and administrative procedures. Summarized below are some of the more important developments since publication of the 2019 update.
Certain procedures discussed in this text may be affected by state or local emergency orders issued during the COVID-19 pandemic. In March 2020 the Governor’s Executive Order N–35–20 extended the deadline for agencies to act on an administrative law judge’s proposed decision by 60 days. See Govt C §11517(c)(2). At the time of this update, the Office of Administrative Hearings (OAH) is conducting hearings only by telephone or video conference, unless an ALJ determines there is a critical need for an in-person hearing and safety requirements are met. Counsel should consult the Governor’s website at https://www.gov.ca.gov/category/executive-orders, the OAH website at https://www.dgs.ca.gov/OAH/Case-Types/General-Jurisdiction, and any applicable agency website for current guidelines.
Application of Administrative Procedure Act (APA). In Barclay Hollander Corp. v California Reg’l Water Quality Control Bd. (2019) 38 CA5th 479, a regional water board added a former owner as a responsible party to a cleanup and abatement order without conducting a formal hearing. The court of appeal held that state water regulations (23 Cal Code Regs §§648–648.8) made the APA’s Bill of Rights (Govt C §§11425.10–11425.60) applicable to the proceeding but the owner waived his right to a hearing by failing to make a timely objection. See §§1.27, 7.14.
In Venice Coalition to Preserve Unique Community Character v City of Los Angeles (2019) 31 CA5th 42, the court of appeal held that issuance of a permit exemption for a development consistent with a local land use plan is a ministerial act and does not result from an adjudicatory proceeding. See §1.60.
Due Process. The California Supreme Court granted review in Natarajan v Dignity Health (2019) 42 CA5th 383 (review granted Feb. 26, 2020, S259364; superseded opinion at 42 CA5th 38) to decide whether a physician facing revocation of privileges at a private hospital may disqualify a hearing officer based on an appearance of bias, or actual bias must be shown. See §1.17.
In Poncio v Department of Resources Recycling & Recovery (2019) 34 CA5th 663, the court of appeal held that Govt C §11425.10(a)(2) does not require a state agency to provide an actual copy of its procedures when taking action against a person. In that case a notification that the procedures were in “title 14, section 2130 of the California Code of Regulations” was sufficient to make a copy “available.” See §1.62.
In Petrovich Dev. Co. v City of Sacramento (2020) 48 CA5th 963, the court of appeal held that alleged bias by an agency’s hearing officer must be established with “concrete facts” and not inferred from mere appearances, although actual bias need not be proved. See §1.66.
Courts continue to define the due process requirements for student disciplinary hearings involving sexual misconduct and relationship violence at colleges and universities. In Doe v Occidental College (2019) 40 CA5th 208, the court upheld the discipline when the student had an opportunity to propose questions for adjudicator to ask the complainant at an in-person hearing. In Boermeester v Carry (2020) 49 CA5th 682, the court overturned the discipline when adjudicator held separate hearings for complainant and the student and, although the student had opportunity to propose questions for adjudicator to ask the complainant, he could not submit follow-up questions or cross-examine other critical witnesses. See §1.71.
Prefiling investigation. In Grafilo v Soorani (2019) 41 CA5th 497, the court of appeal upheld Medical Board subpoenas of a psychiatrist’s patient records because the agency used the least intrusive means possible, having first tried to obtain authorization from the patients, and the scope of the subpoenas was sufficiently limited. See §§2.39–2.40.
In State Water Resources Control Bd. v Baldwin & Sons, Inc. (2020) 45 CA5th 40, the court of appeal upheld State Water Resources Board subpoenas, which were directed to companies believed to be involved in a development project that violated water quality laws, because the financial record subpoenas were sufficiently definite and sought information reasonably relevant to the investigation. See §2.34.
Respondent’s rights. A respondent who seeks writ relief on federal due process grounds may be able to recover attorney fees under 42 USC §1988. In Beames v City of Visalia (2019) 43 CA5th 741, the court of appeal held that a property owner who alleged a zoning hearing violated his constitutional due process rights under 42 USC §1983 was entitled to statutory attorney fees under 42 USC §1988 on writ review because his state administrative law claims and §1983 claim were alternative theories, based on same set of facts. See §4.5.
In Bahra v County of San Bernardino (9th Cir 2019) 945 F3d 1231 the court of appeal held that res judicata barred an employee’s 42 USC §1983 claim in a subsequent lawsuit for First Amendment violations because he had had an adequate opportunity to fully litigate his claim before the county civil service commission. See §4.25.
Decision. In Oduyale v California State Bd. of Pharmacy (2019) 41 CA5th 101, the court of appeal held that when an agency revokes a license, the agency is not required to outline all the reasons it opted not to impose a lesser form of discipline. Under Govt C §11425.50, it need only justify the penalty imposed, including a statement of the factual and legal basis of the decision. See §8.57.
In 103 Ops Cal Atty Gen 27 (2020), the California State Attorney General issued an opinion clarifying that a Bus & P C §805 report, which peer review bodies must file with the Medical Board on denial, restriction, or revocation of a licensee’s hospital privileges, must be filed within 15 days after the time for appealing expires, or after conclusion of an appeal. See §2.10.
Exhaustion of remedies. In Tesoro Refining & Mktg. Co. v Los Angeles Reg’l Water Quality Control Bd. (2019) 42 CA5th 453, the court of appeal held that exhaustion of administrative remedies was excused for futility when the petitioner, who challenged an abatement order as an impermissible retroactive application of the law, successfully argued that board precedent made clear this argument would have failed. See §8.112.
In Contractors’ State License Bd. v Superior Court (2018) 28 CA5th 771, the court of appeal held that a contractor could not sue for a declaratory judgment that the statute at issue in disciplinary proceedings before the Contractors’ State License Board was unconstitutionally vague because the contractor failed to exhaust its administrative remedies. See §8.114.
Judicial review. In Saint Francis Mem. Hosp. v State Dep’t of Pub. Health (2020) 9 C5th 710, the California Supreme Court held that equitable tolling may extend Govt C §11523’s 30-day limitations period to file a petition for writ of administrative mandate if it can be established that (1) plaintiff gave the agency timely notice of intent to file the petition; (2) the agency was not prejudiced by the late filing; and (3) plaintiff acted reasonably and in good faith. Saint Francis Mem. Hosp. v State Dep’t of Pub. Health (June 29, 2020, S249132) 2020 Cal Lexis 3978, *20 (plaintiff’s mistake in calculating filing deadline satisfied first two elements, case remanded for findings on third). See §§8.102, 9.31.
In San Diego Navy Broadway Complex Coalition v California Coastal Comm’n (2019) 40 CA5th 563, the court of appeal held that equitable tolling did not apply to an action otherwise time-barred for failure to name an indispensable party because the plaintiff was not genuinely ignorant of the party and did not act in good faith. See §8.102.
In Weiss v City of Del Mar (2019) 39 CA5th 609, the court of appeal held that a petition to review a planning commission decision was subject to Govt C §65009’s 90-day statute of limitations applicable to “zoning board” decisions because the commission was functionally acting in zoning board capacity when it ruled on the petitioner’s application. See §8.102.