May 2022 Update
The current update includes changes that reflect recent developments in case law, legislation, and court rules. Summarized below are some of the more important developments since publication of the 2021 update.
In 2020, due to the COVID-19 pandemic, all statutes of limitations exceeding 180 days for civil causes of action were tolled from April 6, 2020, to October 1, 2020. All statutes of limitations that were 180 days or less were tolled from April 6, 2020, to August 23, 2020. Cal Rules of Ct Emergency Rules Related to COVID-19, Rule 9.
Administrative Procedure Act cases. To be able to advise the client fully, the attorney should obtain an estimate for the cost of the transcript from the reporter. Updated costs for 2022, per Govt C §§11340–11529 are found in §2.14.
Agency acting in excess of jurisdiction. An agency can act in excess of its jurisdiction when it fails to stay within the procedural rules and regulations it has established, such as when the agency does not appoint a proper hearing officer to preside over a hearing. See Alpha Nu Ass’n of Theta XI v University of S. Cal. (2021) 62 CA5th 383, 406 in §6.3.
Application of regulations and policies. Application of a regulation or policy in a particular case may be subject to review under CCP §1094.5, even though the proceeding includes a challenge to the validity of a regulation. See Alborzi v University of S. Cal. (2020) 55 CA5th 155, holding that in a hospital setting when a physician’s individual medical staff privileges have been denied, suspended, or terminated because the physician failed to comply with established standards, that administrative decision is classified as “quasi-judicial” and review is by administrative mandamus. See §5.20.
Bias. In Natarajan v Dignity Health (2021) 11 C5th 1095, the California Supreme Court held a physician facing revocation of privileges at a private hospital could not disqualify a hearing officer based on an appearance of bias alone. The physician’s challenge to hearing officer was subject to “direct financial interest in the outcome” test under Bus & P C §809.2. The key inquiry was whether the physician showed that prospect of future employment of the hearing officer by Dignity Health, which owned the hospital at which he worked, created an intolerable risk of bias that should have disqualified the hearing officer from serving as such. See discussion in §§5.32, 6.86.
Determination of applicable statute. The substance of the claim, rather than the form of action or the relief sought, determines the applicable statute of limitations. In Honchariw v County of Stanislaus (2020) 51 CA5th 243, the court held that when the principal dispute was over interpretation of conditions attached to a tentative map approved years earlier, a lawsuit filed within 90 days after the dispute over interpretation arose was timely. See §9.4.
Due process. Due process protections apply to deprivation of all non-de minimis property interests, including the seizure of unregistered pool cleaning chemicals from a retailer. Leslie’s Pool Mart, Inc. v Department of Food & Agric. (1990) 223 CA3d 1524. See §5.14.
A fair process generally requires notice of the charges and an opportunity to be heard. See Doe v Regents of Univ. of Cal. (2021) 70 CA5th 521 in §5.32.
Under some circumstances, fair procedure rights may be more limited than those under constitutional due process principles. For example, in Natarajan v Dignity Health (2021) 11 C5th 1095, the court rejected the claim that plaintiff was denied fair procedure because the hearing officer had a pecuniary interest in future employment with the defendant hospital. The circumstances surrounding the hearing officer’s appointment did not create an intolerable risk of bias that would require disqualification under Bus & P C §809.2(b). It found that “[w]hile a hearing officer’s interest in future employment is not automatically disqualifying, neither is it categorically beyond the reach of the statute. In some cases, depending on the circumstances, the hearing officer’s financial interest in currying favor with the hiring entity may create an intolerable risk of bias requiring disqualification under the statute.” Disqualification of a hearing officer in a peer review proceeding is required only when there is a direct financial benefit creating an intolerable risk of actual bias, which in this case was not present. See §5.32.
Exhaustion of administrative remedies. Administrative mandamus may be the only method of review when an adjudicatory action is based on a rule or regulation whose validity is challenged. On appropriate scope of review, see McHugh v Protective Life Ins. Co. (2021) 12 C5th 213, holding that a court will defer to an agency’s interpretations of governing statute when such interpretations are embodied in quasi-legislative regulations or constitute long-standing, consistent, and contemporaneous interpretations. See §5.21.
In Muskan Food & Fuel, Inc. v City of Fresno (2021) 69 CA5th 372, the court held that a municipal code provision allowing planning commission decisions to be appealed to city council was not satisfied by an email to the mayor expressing general concern about effect of decision. See §§7.8, 8.8.
In Stop Syar Expansion v County of Napa (2021) 63 CA5th 444, the court found that the petitioners did not identify in their appeal the issues they sought to raise in litigation with the specificity required under a local ordinance and hence failed to exhaust administrative remedies. See §§7.8, 8.8
Indispensable party. Not every party involved in or affected by the administrative proceeding is an indispensable party. A key issue affecting this determination is whether the interests of the third party are sufficiently aligned with those of the respondent or other named party that the court is able to conclude that the third party’s interests will be adequately protected by respondent or the named party. For example, in Save Berkeley’s Neighborhoods v Regents of the Univ. of Cal. (2021) 70 CA5th 705, plaintiffs filed a CEQA challenge to the development of new buildings on the Berkeley campus. The court held that the developer and financer of the buildings were not indispensable parties because their interests were sufficiently aligned with those of the Regents of the University, who had a vested interest in the success of the project, that the Regents could be expected to adequately protect their interests and the action could proceed without them. See also Citizens Ass’n for Sensible Dev. of Bishop Area v County of Inyo (1985) 172 CA3d 151 (owner of property proposed for shopping center development deemed real party in interest but not indispensable party because named developer could adequately protect its interests). See §§8.18, 8.20.
Meaning of “by law” in CCP §1094.5. The fact that an agency holds an evidentiary hearing that meets all other requirements of CCP §1094.5 does not render the statute applicable unless that hearing was required by law. Nowicki v Contra Costa County Employees’ Retirement Ass’n (2021) 67 CA5th 736. See §5.9.
Ministerial actions. Ministerial actions involve no judgment or discretion by the public official as to the wisdom or manner of carrying out the activity. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. Protecting Our Water & Envt’l Resources v County of Stanislaus (2020) 10 CA5th 479, 489. See §5.23.
Nature of proceedings. In Schmid v City and County of San Francisco (2021) 60 CA5th 470, the court clarified that administrative mandate is not to be used to control discretion of administrative body but only to ensure that it was not abused. See §§1.6, 2.8.
One final judgment rule. An order or ruling that contemplates no further action, such as the preparation of another order or judgment, and disposes of all issues between the parties, starts the running of the appeal period. City of Calexico v Bergeson (2021) 64 CA5th 180. See §14.38.
Petition. When a stay is requested in petition, the prayer of the petition should include a sentence requesting a stay. This can include a request that fines and penalties not accrue while judicial review is ongoing. Sweeney v California Reg’l Water Quality Control Bd. (2021) 61 CA5th 1, 18. See §11.31.
Prejudicial error. In order for the reviewing court to overturn the agency’s decision on the basis of abuse of discretion, the error must have been prejudicial. Li v Superior Court (2021) 69 CA5th 836. Prejudicial error “must be proven; it is not presumed.” See §6.118.
Private institutions. Courts have held that CCP §1094.5 applies to many types of private institutions, including private universities. See, e.g., Alpha Nu Ass’n of Theta XI v University of S. Cal. (2021) 62 CA5th 383 See §8.13.
Proceedings subject to writ; evidentiary hearings. If the agency is legally required to accept and consider evidence before making a decision, the requirements of CCP §1094.5 may be satisfied even if a trial-type hearing is not held. The hearing need not necessarily afford the party an opportunity to confront and cross-examine witnesses unless the credibility of witnesses is central to the decision. Doe v Regents of Univ. of Cal. (2021) 70 CA5th 521, 535. The proceedings “should be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard.” Alpha Nu Ass’n of Theta XI v University of S. Cal. (2021) 62 CA5th 383, 419. See §§5.8, 8.13.
Real party in interest. Any real party in interest must also be a party to an agreement to toll the statute of limitations for such an agreement to be valid. Save Lafayette Trees v East Bay Reg’l Park Dist. (2021) 66 CA5th 21. See §8.14.
Statutes of limitation. In Coachella Valley Water Dist. v Superior Court (Roberts) (2021) 61 CA5th 755, plaintiffs brought a suit to invalidate increase in water district property tax time-barred under the validation statutes, which required petitioner to file his claim within 60 days. Although validation statutes do not specify the matters to which they apply, provisions of the County Water District Law (Wat C §§30000–30068) stating that an action “to determine the validity of an assessment” could be brought as a validation action subjected the claim to the validation statutes. See §9.2.
In Alford v County of Los Angeles (2020) 51 CA5th 742, the county included the notice required under CCP §1094.6 stating that the decision had become final and suit must be filed no later than 90 days after the date the decision became final. But the notice also said the decision would become final “90 days from the date it is placed in the mail.” The court held that the notice was defective, stating that agencies must provide the notice specified in the statute, and may “not add confusing information to the required notice that could mislead affected parties about the timing for seeking judicial review.” See §9.4A.
A public hearing notice did not expressly disclose a tree removal project, but documents before the District Board, including the proposed resolution itself, referenced tree removal and gave adequate constructive notice of project to commence running of statute of limitations. The notice itself need not disclose all elements of the project that may be the subject of potential challenge provided the documents to be acted on include such disclosure. See Save Lafayette Trees v East Bay Reg’l Park Dist. (2021) 66 CA5th 21. See §9.4A.
In Saint Francis Mem. Hosp. v State Dep’t of Pub. Health (2020) 9 C5th 710, the court held that statutes of limitations are presumed to be subject to the court’s inherent equitable powers unless explicit statutory language or a manifest policy underlying the statute cannot be reconciled with equitable tolling. See §9.27.
Taxpayer standing. A taxpayer action statute “does not lie to attack exercises of administrative discretion and may not be employed to interfere with policymaking.” Schmid v City & County of San Francisco (2021) 60 CA5th 470. See §7.17.