If a respondent fails to file a notice of defense to an accusation by the ABC Bd., it may act based on its own evidence. However, the ALJ has discretion to hold an evidentiary hearing even if no notice of defense is filed, and the board may vacate a decision if a motion requesting relief for inadvertence, surprise or excusable… Read More
An administrative hearing need not be conducted according to the rules of procedure and evidence used in civil trials. Instead, any relevant evidence may be considered if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. (Gov. Code, § 11513(c).) So, here the department's hearing officer did not err… Read More
Although procedural fairness does not prohibit the combination of the advocacy and adjudicatory functions within a single administrative agency, tasking the same individual with both roles violates the minimum constitutional standards of due process. The irreconcilable conflict between advocating for the agency on one hand, and being an impartial decisionmaker on the other, presents a particular combination of circumstances creating… Read More
While the scope of a student's right to a fair hearing before discipline is uncertain and evolving, one thing is clear: the school must follow its own published procedures in determining whether to discipline a student. Here, the defendant school's procedure said that students would have the right to cross-examine witnesses. The school misinterpreted this as granting cross-examination only if… Read More
University did not deny male student fair process when it suspended him for two years for unconsented sex with another student without holding a hearing at which the male student could cross-examine the female victim. Where credibility is crucial, a hearing and cross-examination may be required, but here, the male student's own account of the evening and the female student's… Read More
Contrary to 40 years of appellate authority, this decision holds that when a trial court must exercise its independent judgment in ruling on an administrative mandamus petition under CCP 1094.5 and the administrative agency was required to apply a clear and convincing evidence standard in the administrative proceeding, the trial court cannot affirm based on a preponderance of the evidence… Read More
Plaintiff adequately exhausted her administrative remedies under the FEHA by filing a complaint with the DFEH that nearly correctly named her employer's dba Hooman Chevrolet (instead of Hooman Chevrolet of Culver City) but got the corporate name of the employer wrong Hooman Enterprises, Inc. (instead of NBA Automotive, Inc.). The administrative complaint also correctly named the plaintiff's supervisor and other… Read More
The department's annual cap on the amount of 1, 3-D pesticide that could be applied within a township was an illegal underground regulation that was not adopted, as it should have been, in compliance with the Administrative Procedure Act. Even though only one company (Dow Chemical) produced 1,3-D pesticides, the township cap program applied generally to all users of the… Read More
Gov. Code 53069.4 allows local governments to enforce their ordinances through an administrative process for imposing and collecting fines. Unlike most administrative proceedings that may be reviewed only by a writ of administrative mandamus under CCP 1094.5, a citizen can appeal to the superior court from a decision by that administrative process within 20 days after the decision. (Gov. Code… Read More
A court may abstain from adjudicating a suit that seeks equitable remedies if granting the requested relief would require a trial court to assume the functions of an administrative agency, or to interfere with the functions of an administrative agency. Here, plaintiff sought injunctive relief against a local water service district to prevent a particular employee from operating its water… Read More
In hospital peer review committee proceedings, a person hired by a hospital to serve as a hearing officer may be disqualified for financial bias under Business and Professions Code section 809.2(b), on grounds that the officer has an incentive to favor the hospital in order to increase the chances of receiving future appointments. Under the statute, a hearing officer is… Read More
An employee who had complained about his supervisor, was terminated and then claimed retaliation for his whistleblowing was not required to exhuast his administrative remedies before the employer's human relations commission because the commission's decision would have been subject to review and change by the supervisor in consultation with the mayor. To have the personally involved supervisor (who had been… Read More
The Agricultural Labor Relations Board's access regulation (Cal. Code Regs. tit. 8, § 20900) gives agricultural labor unions a limited right to access to agricultural workers while on their employer's property for an hour before and after work and during the lunch hour for four months out of the year. This decision holds that the regulation is a per se… Read More
The Federal Housing Finance Agency's structure is unconstitutional in providing that the President can remove the head of that agency only for cause. However, that fact does not invalidate the acts taken by the FHFA's head or entitle shareholders of Fannie Mae and Freddie Mac to damages unless they can prove that the restriction on the President's power (as opposed… Read More
Plaintiff is a medical doctor specializing in pain management. CVS, a pharmacy, informed him it would no longer fill his patients' prescriptions, citing conerns he was over-prescribing controlled substances. Plaintiff sued for an injunction directing CVS to fill his prescriptions. Held, injunction properly denied. The State Board of Pharmacy has primary jurisdiction over the issues in this litigation. It enforces… Read More
Applying Kisor v. Wilkie (2019) 139 S.Ct. 2400 and its analysis of Auer deference, this decision concludes that a decision of the HHS Departmental Review Board which interpreted an ambiguous HHS Medicare regulation was entitled to Auer deference. The Board's interpretation was "authoritative" because the Board issues HHS' final decision in contested cases, subject to federal court review. The interpretation… Read More
To secure a Coastal Commission permit to build a beach house, the prior owner agreed to grant the Coastal Conservancy a 5-feet wid public easement along one side of the house to afford public access to the beach. After a public acceptance of the easement was recorded, the prior owner then ignored it and built an unpermitted deck above the… Read More
A court reviews a agency regulation adopted pursuant to quasi-legislative authority delegated by Congress under an arbitrary and capricious standard, requiring the regulation to be reasonable and reasonably explained. 5 USC 706(2)(A). However, judicial review is deferential. A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues… Read More
The Administrative Procedure Act allows only three remedies for discovery abuse in the course of an administrative proceeding. First, the requesting party may file a motion before the ALJ conducting the proceeding to compel the discovery. (Gov. Code, 11507.7(a).) Second, that party may request monetary sanctions from the supervisor ALJ, managing the regional ALJ office. (Gov. Code, 11455.30(a).) Third, the… Read More
USC did not exceed its jurisdiction in suspending Alpha Nu for six years as a result of its misconduct in hazing pledges during the 2016 rush week even though it acted on a complaint filed 14 months later. USC's internal disciplinary process is not governed by any statute of limitations. Here, the complaint was just two months later than USC's… Read More
