May 2020 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 2019 update.
Review by Administrative Mandamus. Berman hearings are not subject to review under CCP §1094.5 because Lab C §98 gives the Labor Commissioner discretion to hold a hearing or take no action on a wage complaint; a hearing is not required. See OTO, LLC v Kho (2019) 8 C5th 111, cited in §5.10.
Exhaustion of Remedies. In a Takings Clause case, the United States Supreme Court overruled the state-litigation requirement of Williamson County Reg’l Planning Comm’n v Hamilton Bank (1985) 473 US 172, 105 S Ct 3108, to hold that property owners are not required to exhaust their state administrative and judicial remedies before suing for a Takings Clause violation. See §§3.27, 3.37.
Exceptions to the exhaustion requirement were illustrated in Tesoro Refining & Mktg. Co. LLC v Los Angeles Reg’l Water Quality Control Bd. (2019) 42 CA5th 453, a case in which a gasoline pipeline owner challenged a regional water board’s abatement order. The court did not apply the jurisdictional-challenge exception because the jurisdictional issue involved disputed facts and was raised for the first time in the superior court. However, the futility exception did apply because even if the pipeline owner had asserted a factual basis for its theory that the order was an impermissible retroactive application of a 1970 statute, board precedent made clear that the legal argument would have failed. See §§3.13, 3.34.
The court in York v City of Los Angeles (2019) 33 CA5th 1178 held that a zoning administrator’s denial was not a “final decision” when it did not preclude the plaintiffs from submitting another, more modest proposal. See §3.27.
Sustainability, Parks, Recycling & Wildlife Defense Fund v Department of Resources Recycling & Recovery (2019) 34 CA5th 676 (citing text) illustrates that a party cannot raise new issues before an administrative agency exercising appellate functions if those issues could have been asserted before a lower administrative body. See §3.73.
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Supreme Court granted review in Natarajan v Dignity Health (2019) 42 CA5th 383 (review granted Feb. 26, 2020, S259364; superseded opinion at 42 CA5th 38) to decide whether a physician facing revocation of privileges at a private hospital may disqualify a hearing officer based on an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 §§5.32, 6.89.
A number of appellate decisions addressed the right to present evidence and confront witnesses at administrative hearings concerning sexual misconduct at colleges and universities. See §6.61.
Scope of Review. An agency is not legally required to outline its reasons for rejecting a lesser form of discipline; the agency need only justify the penalty it actually imposes, including a statement of the factual and legal basis for its decision. See Oduyale v California State Bd. of Pharmacy (2019) 41 CA5th 101, cited in §6.96.
When a superior court improperly uses the substantial evidence test instead of the independent judgment test, the appellate court usually remands the case to the superior court to reweigh the evidence. However, in Mercury Ins. Co. v Lara (2019) 35 CA5th 82, the court of appeal reversed the judgment, finding that remand was an “idle act” when application of the proper standard led to only one conclusion. See §6.151.
Standing. In Synergy Project Mgmt., Inc. v City and County of San Francisco (2019) 33 CA5th 21, the court held that a prime contractor had standing to challenge a city’s substitution of one of its subcontractors, even though the prime contractor had not been a party to the hearing, because the decision directly and negatively affected the prime contractor’s interest in exerting control in the subcontractor substitution process. See §7.10.
Dismissal for Mootness. In Fudge v City of Laguna Beach (2019) 32 CA5th 193, petitioner sued to challenge the city’s issuance of a coastal development permit to demolish a home. While the suit was pending, the Coastal Commission accepted an appeal from the city’s decision. The court held that the pendency of the appeal, which constitutes de novo review, nullified the city’s decision and therefore rendered petitioner’s challenge moot. See §8.4A.
Statute of Limitations. In Weiss v City of Del Mar (2019) 39 CA5th 609, the court held that the 90-day limitations period in Govt C §65009 governing decisions of a “zoning board” applied to a decision by a planning commission because it was functionally acting in a zoning board capacity when ruling on petitioner’s application. See §9.2.
The court in Save Lafayette Trees v City of Lafayette (2019) 32 CA5th 148 held that the longer, specific 180-day limitations period for filing and service in Pub Res C §21167(a), not the general 90-day period in Govt C §65009 governing local permit decisions, applied to a CEQA cause of action. See §9.3A.
Whether equitable tolling can save a suit that is otherwise time-barred for failure to name an indispensable party is a question of fact. The court in San Diego Navy Broadway Complex Coalition v California Coastal Comm’n (2019) 40 CA5th 563 reversed the superior court’s finding that the plaintiff was “genuinely ignorant” of the identity of indispensable parties, citing multiple public documents that identified the two real parties in interest and their anticipated roles in the development challenged in the lawsuit. See §§8.18, 9.30.
In County of El Dorado v Superior Court (2019) 42 CA5th 620, the court held that an action for refund of developer fees under the Mitigation Fee Act was for a penalty or forfeiture, and so subject to the 1-year limitations period in CCP §340(a), because the refund payment was required by statute regardless of fault by the agency and regardless of actual injury or fault by the plaintiff. See §9.10A.
Administrative Record. The Office of Administrative Hearings issued a new form DGS-OAH-7 to use when ordering a certified copy of the administrative record. See §10.64.
Appeal From the Superior Court. The California Supreme Court depublished the opinion in Alliance of Concerned Citizens etc. v City of San Juan Bautista (2018) 29 CA5th 424, in which the court of appeal had held that a superior court’s order labeled “interlocutory” on remand to the agency was in fact a final judgment for purposes of calculating the time to appeal, because it disposed of all issues raised in the writ petition.
The Judicial Council published new statewide rules governing the format of electronically filed documents in the courts of appeal. Cal Rules of Ct 8.74. See §16.43.