Business and Professions Code
Sec. 125.3 Direction to licentiate violating licensing act to pay costs of investigation and enforcement
162. Evidentiary Effect of Certificate of Records Officer as to license, etc.
494. Interim Suspension or Restriction Order
Code of Civil Procedure
Sec. 1985. Subpoena; Issuance; Affidavit
1985.1. Agreement to Appear at Time not Specified in Subpoena
1985.2. Subpoena Requiring Attendance of Witness; Notice
1985.3. Subpoena duces tecum for production of personal records;
Definitions; Application of section
1985.4. Production of Consumer Records Maintained by State or Local Agency
1985.6. Definitions; Subpoena duces tecum for production of employment
records; Application of section
1987. Service of Subpoena, or of Written Notice
CHAPTER 4
OFFICE OF ADMINISTRATIVE HEARINGS
ARTICLE 1
General Provisions
§ 11370. Citation of Chapters 3.5, 4, and 5Chapter 3.5 (commencing with Section 11340), Chapter 4 (commencing with Section 11370), Chapter 4.5 (commencing with Section 11400), and Chapter 5 (commencing with Section 11500) constitute, and may be cited as, the Administrative Procedure Act.
HISTORY:
Added Stats 1947 ch 1425 § 1. Amended Stats 1961 ch 2048 § 2; Stats 1981 ch 714 § 176, operative until July 1, 1997; Stats 1995 ch 938 § 16.5 (SB 523), operative July 1, 1997.
§ 11370.1. "Director"As used in the Administrative Procedure Act "director" means the executive officer of the Office of Administrative Hearings.
HISTORY:
Added Stats 1961 ch 2048 § 3. Amended Stats 1971 ch 1303 § 2.
§ 11370.2. Office of Administrative Hearings in Department of General Services; Director(a) There is in the Department of General Services the Office of Administrative Hearings which is under the direction and control of an executive officer who shall be known as the director.
(b) The director shall have the same qualifications as administrative law judges, and shall be appointed by the Governor subject to the confirmation of the Senate.
(c) Any and all references in any law to the Office of Administrative Procedure shall be deemed to be the Office of Administrative Hearings.
HISTORY:
Added Stats 1961 ch 2048 § 4. Amended Stats 1963 ch 1786 § 13, operative October 1, 1963; Stats 1971 ch 1303 § 3; Stats 1985 ch 324 § 13.
§ 11370.3. Appointment and assignment of administrative law judges and other personnelThe director shall appoint and maintain a staff of full-time, and may appoint pro tempore part-time, administrative law judges qualified under Section 11502 which is sufficient to fill the needs of the various state agencies. The director shall also appoint any other technical and clerical personnel as may be required to perform the duties of the office. The director shall assign an administrative law judge for any proceeding arising under Chapter 5 (commencing with Section 11500) and, upon request from any agency, may assign an administrative law judge to conduct other administrative proceedings not arising under that chapter and shall assign hearing reporters as required. Any administrative law judge or other employee so assigned shall be deemed an employee of the office and not of the agency to which he or she is assigned. When not engaged in hearing cases, administrative law judges may be assigned by the director to perform other duties vested in or required of the office, including those provided for in Section 11370.5.
HISTORY:
Added Stats 1961 ch 2048 § 5. Amended Stats 1971 ch 1303 § 3.5; Stats 1979 ch 199 § 2; Stats 1984 ch 1005 § 2; Stats § 1985 ch 324 § 14; Stats 1995 ch 938 § 17 (SB 523), operative July 1, 1997.
§ 11370.4. Determination and collection of costs
The total cost to the state of maintaining and operating the Office of Administrative Hearings shall be determined by, and collected by the Department of General Services in advance or upon such other basis as it may determine from the state or other public agencies for which services are provided by the office.
HISTORY:
Added Stats 1961 ch 2048 § 6. Amended Stats 1963 ch 1553 § 1; Stats 1965 ch 462 § 1; Stats 1971 ch 1303 § 4.
§ 11370.5. Recommendations on administrative adjudication(a) The office is authorized and directed to study the subject of administrative adjudication in all its aspects; to submit its suggestions to the various agencies in the interests of fairness, uniformity and the expedition of business; and to report its recommendations to the Governor and Legislature. All departments, agencies, officers, and employees of the state shall give the office ready access to their records and full information and reasonable assistance in any matter of research requiring recourse to them or to data within their knowledge or control. Nothing in this section authorizes an agency to provide access to records required by statute to be kept confidential.
(b) The office may adopt rules and regulations to carry out the functions and duties of the office under the Administrative Procedure Act. The regulations are subject to Chapter 3.5 (commencing with Section 11340).
HISTORY:
Added Stats 1961 ch 2048 § 7. Amended Stats 1995 ch 938 § 18 (SB 523), operative July 1, 1997. Amended Stats 2002 ch 370 § 3 (AB 2283).
ARTICLE 2
Medical Quality Hearing Panel
§ 11371. Members of panel; Published decisions; Experts(a) There is within the Office of Administrative Hearings a Medical Quality Hearing Panel, consisting of no fewer than five full-time administrative law judges. The administrative law judges shall have medical training as recommended by the Division of Medical Quality of the Medical Board of California and approved by the Director of the Office of Administrative Hearings.
(b) The director shall determine the qualifications of panel members, supervise their training, and coordinate the publication of a reporter of decisions pursuant to this section. The panel shall include only those persons specifically qualified and shall at no time constitute more than 25 percent of the total number of administrative law judges within the Office of Administrative Hearings. If the members of the panel do not have a full workload, they may be assigned work by the Director of the Office of Administrative Hearings. When the medically related case workload exceeds the capacity of the members of the panel, additional judges shall be requested to be added to the panels as appropriate. When this workload overflow occurs on a temporary basis, the Director of the Office of Administrative Hearings shall supply judges from the Office of Administrative Hearings to adjudicate the cases.
(c) The administrative law judges of the panel shall have panels of experts available. The panels of experts shall be appointed by the Director of the Office of Administrative Hearings, with the advice of the Medical Board of California. These panels of experts may be called as witnesses by the administrative law judges of the panel to testify on the record about any matter relevant to a proceeding and subject to cross-examination by all parties, and Section 11430.30 does not apply in a proceeding under this section. The administrative law judge may award reasonable expert witness fees to any person or persons serving on a panel of experts, which shall be paid from the Contingent Fund of the Medical Board of California upon appropriation by the Legislature.
HISTORY:
Added Stats 1993 ch 1267 § 51 (SB 916). Amended Stats 1994 ch 1206 § 27 (SB 1775); Stats 1995 ch 938 § 19.5 (SB 523), operative July 1, 1997; Stats 1998 ch 878 § 56 (SB 2239), operative until January 1, 2003; Stats 2002 ch 1085 § 31 (SB 1950); Stats 2005 ch 674 § 21 (SB 231), effective January 1, 2006.
§ 11372. Conduct of hearing by administrative law judge
(a) Except as provided in subdivision (b), all adjudicative hearings and proceedings relating to the discipline or reinstatement of licensees of the Medical Board of California, including licensees of allied health agencies within the jurisdiction of the Medical Board of California, that are heard pursuant to the Administrative Procedure Act, shall be conducted by an administrative law judge as designated in Section 11371, sitting alone if the case is so assigned by the agency filing the charging pleading.
(b) Proceedings relating to interim orders shall be heard in accordance with Section 11529.
HISTORY:
Added Stats 1990 ch 1597 § 32 (SB 2375). Amended Stats 1993 ch 1267 § 52 (SB 916).
§ 11373. Conduct of proceedings under Administrative Procedure Act
All adjudicative hearings and proceedings conducted by an administrative law judge as designated in Section 11371 shall be conducted under the terms and conditions set forth in the Administrative Procedure Act, except as provided in the Medical Practice Act (Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code).
HISTORY:
Added Stats 1990 ch 1597 § 33 (SB 2375). Amended Stats 1993 ch 1267 § 53 (SB 916).
§ 11373.3. Facilities and support personnel for review committee panel
The Office of Administrative Hearings shall provide facilities and support personnel for the review committee panel and shall assess the Medical Board of California for facilities and personnel, where used to adjudicate cases involving the Medical Board of California.
HISTORY:
Added Stats 1990 ch 1597 § 34 (SB 2375). Amended Stats 1991 ch 1091 § 44 (AB 1487).
ARTICLE 3
State Agency Reports and Forms Appeals
§ 11380. Appeal filed by Business and Professions Code
(a) (1) The office shall hear and render a decision on any appeal filed by a business, pursuant to subdivision (c) of Section 14775, in the event the business contests the certification by a state agency head that reporting requirements meet established criteria and shall not be eliminated.
(2) Before a business may file an appeal with the office pursuant to subdivision (c) of Section 14775, the business shall file a challenge to a form or report required by a state agency with that state agency. Within 60 days of filing the challenge with a state agency, the state agency shall either eliminate the form or report or provide written justification for its continued use.
(3) A business may appeal a state agency's written justification for the continued use of a form or report with the office.
(4) If a state agency fails to respond within 60 days of the filing of a challenge pursuant to paragraph (2), the business shall have an immediate right to file an appeal with the office.
(b) No later than January 1, 1996, the office shall adopt procedures governing the filing, hearing, and disposition of appeals. The procedures shall include, but shall not be limited to, provisions that assure that appeals are heard and decisions rendered by the office in a fair, impartial, and timely fashion.
(c) The office may charge appellants a reasonable fee to pay for costs it incurs in complying with this section.
HISTORY:
Added Stats 1995 ch 938 § 20 (SB 523), operative July 1, 1997.
CHAPTER 4.5
ADMINISTRATIVE ADJUDICATION: GENERAL PROVISIONS
ARTICLE 1
Preliminary Provisions
§ 11400. Administrative Procedure Act; References to superceded provisions.
(a) This chapter and Chapter 5 (commencing with Section 11500) constitute the administrative adjudication provisions of the Administrative Procedure Act.
(b) A reference in any other statute or in a rule of court, executive order, or regulation, to a provision formerly found in Chapter 5 (commencing with Section 11500) that is superseded by a provision of this chapter, means the applicable provision of this chapter.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11400.10. Operative date of chapter
(a) This chapter is operative on July 1, 1997.
(b) This chapter is applicable to an adjudicative proceeding commenced on or after July 1, 1997.
(c) This chapter is not applicable to an adjudicative proceeding commenced before July 1, 1997, except an adjudicative proceeding conducted on a remand from a court or another agency on or after July 1, 1997.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11400.20. Adoption of interim or permanent regulations
(a) Before, on, or after July 1, 1997, an agency may adopt interim or permanent regulations to govern an adjudicative proceeding under this chapter or Chapter 5 (commencing with Section 11500). Nothing in this section authorizes an agency to adopt regulations to govern an adjudicative proceeding required to be conducted by an administrative law judge employed by the Office of Administrative Hearings, except to the extent the regulations are otherwise authorized by statute.
(b) Except as provided in Section 11351:
(1) Interim regulations need not comply with Article 5 (commencing with Section 11346) or Article 6 (commencing with Section 11349) of Chapter 3.5, but are governed by Chapter 3.5 (commencing with Section 11340) in all other respects.
(2) Interim regulations expire on December 31, 1998, unless earlier terminated or replaced by or readopted as permanent regulations under paragraph (3). If on December 31, 1998, an agency has completed proceedings to replace or readopt interim regulations and has submitted permanent regulations for review by the Office of Administrative Law, but permanent regulations have not yet been filed with the Secretary of State, the interim regulations are extended until the date permanent regulations are filed with the Secretary of State or March 31, 1999, whichever is earlier.
(3) Permanent regulations are subject to all the provisions of Chapter 3.5 (commencing with Section 11340), except that if by December 31, 1998, an agency has submitted the regulations for review by the Office of Administrative Law, the regulations are not subject to review for necessity under Section 11349.1 or 11350.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997. Amended Stats 1996 ch 390 § 5 (SB 794), effective August 19, 1996, operative July 1, 1997.
ARTICLE 2
Definitions
§ 11405.10. Definitions to govern construction
Unless the provision or context requires otherwise, the definitions in this article govern the construction of this chapter.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11405.20. "Adjudicative proceeding""Adjudicative proceeding" means an evidentiary hearing for determination of facts pursuant to which an agency formulates and issues a decision.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11405.30. "Agency"
"Agency" means a board, bureau, commission, department, division, office, officer, or other administrative unit, including the agency head, and one or more members of the agency head or agency employees or other persons directly or indirectly purporting to act on behalf of or under the authority of the agency head. To the extent it purports to exercise authority pursuant to this chapter, an administrative unit otherwise qualifying as an agency shall be treated as a separate agency even if the unit is located within or subordinate to another agency.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11405.40. "Agency head"
"Agency head" means a person or body in which the ultimate legal authority of an agency is vested, and includes a person or body to which the power to act is delegated pursuant to authority to delegate the agency's power to hear and decide.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11405.50. "Decision"
(a) "Decision" means an agency action of specific application that determines a legal right, duty, privilege, immunity, or other legal interest of a particular person.
(b) Nothing in this section limits any of the following:
(1) The precedential effect of a decision under Section 11425.60.
(2) The authority of an agency to make a declaratory decision pursuant to Article 14 (commencing with Section 11465.10).
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11405.60. "Party"
"Party" includes the agency that is taking action, the person to which the agency action is directed, and any other person named as a party or allowed to appear or intervene in the proceeding. If the agency that is taking action and the agency that is conducting the adjudicative proceeding are separate agencies, the agency that is taking action is a party and the agency that is conducting the adjudicative proceeding is not a party.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11405.70. "Person"
"Person" includes an individual, partnership, corporation, governmental subdivision or unit of a governmental subdivision, or public or private organization or entity of any character.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11405.80. "Presiding officer"
"Presiding officer" means the agency head, member of the agency head, administrative law judge, hearing officer, or other person who presides in an adjudicative proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
ARTICLE 3
Application of Chapter
§ 11410.10. Decision of requiring evidentiary hearing
This chapter applies to a decision by an agency if, under the federal or state Constitution or a federal or state statute, an evidentiary hearing for determination of facts is required for formulation and issuance of the decision.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11410.20. Applicability to agencies
Except as otherwise expressly provided by statute:
(a) This chapter applies to all agencies of the state.
(b) This chapter does not apply to the Legislature, the courts or judicial branch, or the Governor or office of the Governor.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11410.30. Applicability to local agency or joint agency
(a) As used in this section, "local agency" means a county, city, district, public authority, public agency, or other political subdivision or public corporation in the state other than the state.
(b) This chapter does not apply to a local agency except to the extent the provisions are made applicable by statute.
(c) This chapter applies to an agency created or appointed by joint or concerted action of the state and one or more local agencies.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11410.40. Adoption of chapter by exempt agency
Notwithstanding any other provision of this article, by regulation, ordinance, or other appropriate action, an agency may adopt this chapter or any of its provisions for the formulation and issuance of a decision, even though the agency or decision is exempt from application of this chapter.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11410.50. Applicability to specified proceedings
This chapter applies to an adjudicative proceeding required to be conducted under Chapter 5 (commencing with Section 11500) unless the statutes relating to the proceeding provide otherwise.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11410.60. Quasi-public entity
(a) As used in this section, "quasi-public entity" means an entity, other than a governmental agency, whether characterized by statute as a public corporation, public instrumentality, or otherwise, that is expressly created by statute for the purpose of administration of a state function.
(b) This chapter applies to an adjudicative proceeding conducted by a quasi-public entity if all of the following conditions are satisfied:
(1) A statute vests the power of decision in the quasi-public entity.
(2) A statute, the United States Constitution, or the California Constitution, requires an evidentiary hearing for determination of facts for formulation and issuance of the decision. Nothing in this section is intended to create an evidentiary hearing requirement that is not otherwise statutorily or constitutionally imposed.
(3) The decision is not otherwise subject to administrative review in an adjudicative proceeding to which this chapter applies.
(c) For the purpose of application of this chapter to a decision by a quasi-public entity:
(1) "Agency," as defined in Section 11405.30, also includes the quasi-public entity.
(2) "Regulation" includes a rule promulgated by the quasi-public entity.
(3) Article 8 (commencing with Section 11435.05), requiring language assistance in an adjudicative proceeding, applies to a quasi-public entity to the same extent as a state agency under Section 11018.
(d) This section shall be strictly construed to effectuate the intent of the Legislature to apply this chapter only to a decision by a quasi-public entity that is expressly created by statute for the purpose of administration of a state function.
(e) This section shall not apply to a decision made on authority of an approved plan of operations of a quasi-public entity that is subject to the regulation or supervision of the Insurance Commissioner.
HISTORY:
Added Stats 1997 ch 220 § 9 (SB 68), effective August 4, 1997.
ARTICLE 4
Governing Procedure
§ 11415.10. Determination of procedure(a) The governing procedure by which an agency conducts an adjudicative proceeding is determined by the statutes and regulations applicable to that proceeding. If no other governing procedure is provided by statute or regulation, an agency may conduct an adjudicative proceeding under the administrative adjudication provisions of the Administrative Procedure Act.
(b) This chapter supplements the governing procedure by which an agency conducts an adjudicative proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11415.20. Statute to prevail over provision of chapter
A state statute or a federal statute or regulation applicable to a particular agency or decision prevails over a conflicting or inconsistent provision of this chapter.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11415.30. Actions by Governor to avoid loss or delay of federal funds
(a) To the extent necessary to avoid a loss or delay of funds or services from the federal government that would otherwise be available to the state, the Governor may do any of the following by executive order:
(1) Suspend, in whole or in part, any administrative adjudication provision of the Administrative Procedure Act.
(2) Adopt a rule of procedure that will avoid the loss or delay.
(b) The Governor shall rescind an executive order issued under this section as soon as it is no longer necessary to prevent the loss or delay of funds or services from the federal government.
(c) If an administrative adjudication provision is suspended or rule of procedure is adopted pursuant to this section, the Governor shall promptly report the suspension or adoption to the Legislature. The report shall include recommendations concerning any legislation that may be necessary to conform the provision to federal law.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11415.40. Waiver of right conferred by provisions
Except to the extent prohibited by another statute or regulation, a person may waive a right conferred on the person by the administrative adjudication provisions of the Administrative Procedure Act.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11415.50. Procedure for decision where adjudicative proceeding not required
(a) An agency may provide any appropriate procedure for a decision for which an adjudicative proceeding is not required.
(b) An adjudicative proceeding is not required for informal factfinding or an informal investigatory hearing, or a decision to initiate or not to initiate an investigation, prosecution, or other proceeding before the agency, another agency, or a court, whether in response to an application for an agency decision or otherwise.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11415.60. Decision by settlement
(a) An agency may formulate and issue a decision by settlement, pursuant to an agreement of the parties, without conducting an adjudicative proceeding. Subject to subdivision (c), the settlement may be on any terms the parties determine are appropriate. Notwithstanding any other provision of law, no evidence of an offer of compromise or settlement made in settlement negotiations is admissible in an adjudicative proceeding or civil action, whether as affirmative evidence, by way of impeachment, or for any other purpose, and no evidence of conduct or statements made in settlement negotiations is admissible to prove liability for any loss or damage except to the extent provided in Section 1152 of the Evidence Code. Nothing in this subdivision makes inadmissible any public document created by a public agency.
(b) A settlement may be made before or after issuance of an agency pleading, except that in an adjudicative proceeding to determine whether an occupational license should be revoked, suspended, limited, or conditioned, a settlement may not be made before issuance of the agency pleading. A settlement may be made before, during, or after the hearing.
(c) A settlement is subject to any necessary agency approval. An agency head may delegate the power to approve a settlement. The terms of a settlement may not be contrary to statute or regulation, except that the settlement may include sanctions the agency would otherwise lack power to impose.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997. Amended Stats 1996 ch 390 § 7 (SB 794), effective August 19, 1996, operative July 1, 1997.
ARTICLE 5
Alternative Dispute Resolution
§ 11420.10. Mediation or arbitration
(a) An agency, with the consent of all the parties, may refer a dispute that is the subject of an adjudicative proceeding for resolution by any of the following means:
(1) Mediation by a neutral mediator.
(2) Binding arbitration by a neutral arbitrator. An award in a binding arbitration is subject to judicial review in the manner provided in Chapter 4 (commencing with Section 1285) of Title 9 of Part 3 of the Code of Civil Procedure.
(3) Nonbinding arbitration by a neutral arbitrator. The arbitrator's decision in a nonbinding arbitration is final unless within 30 days after the arbitrator delivers the award to the agency head a party requests that the agency conduct a de novo adjudicative proceeding. If the decision in the de novo proceeding is not more favorable to the party electing the de novo proceeding, the party shall pay the costs and fees specified in Section 1141.21 of the Code of Civil Procedure insofar as applicable in the adjudicative proceeding.
(b) If another statute requires mediation or arbitration in an adjudicative proceeding, that statute prevails over this section.
(c) This section does not apply in an adjudicative proceeding to the extent an agency by regulation provides that this section is not applicable in a proceeding of the agency.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11420.20. Model regulations for alternative dispute resolution(a) The Office of Administrative Hearings shall adopt and promulgate model regulations for alternative dispute resolution under this article. The model regulations govern alternative dispute resolution by an agency under this article, except to the extent the agency by regulation provides inconsistent rules or provides that the model regulations are not applicable in a proceeding of the agency.
(b) The model regulations shall include provisions for selection and compensation of a mediator or arbitrator, qualifications of a mediator or arbitrator, and confidentiality of the mediation or arbitration proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11420.30. Protection of communication
Notwithstanding any other provision of law, a communication made in alternative dispute resolution under this article is protected to the following extent:
(a) Anything said, any admission made, and any document prepared in the course of, or pursuant to, mediation under this article is a confidential communication, and a party to the mediation has a privilege to refuse to disclose and to prevent another from disclosing the communication, whether in an adjudicative proceeding, civil action, or other proceeding. This subdivision does not limit the admissibility of evidence if all parties to the proceedings consent.
(b) No reference to nonbinding arbitration proceedings, a decision of the arbitrator that is rejected by a party's request for a de novo adjudicative proceeding, the evidence produced, or any other aspect of the arbitration may be made in an adjudicative proceeding or civil action, whether as affirmative evidence, by way of impeachment, or for any other purpose.
(c) No mediator or arbitrator is competent to testify in a subsequent administrative or civil proceeding as to any statement, conduct, decision, or order occurring at, or in conjunction with, the alternative dispute resolution.
(d) Evidence otherwise admissible outside of alternative dispute resolution under this article is not inadmissible or protected from disclosure solely by reason of its introduction or use in alternative dispute resolution under this article.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
ARTICLE 6
Administrative Adjudication Bill of Rights
§ 11425.10. Required procedures
(a) The governing procedure by which an agency conducts an adjudicative proceeding is subject to all of the following requirements:
(1) The agency shall give the person to which the agency action is directed notice and an opportunity to be heard, including the opportunity to present and rebut evidence.
(2) The agency shall make available to the person to which the agency action is directed a copy of the governing procedure, including a statement whether Chapter 5 (commencing with Section 11500) is applicable to the proceeding.
(3) The hearing shall be open to public observation as provided in Section 11425.20.
(4) The adjudicative function shall be separated from the investigative, prosecutorial, and advocacy functions within the agency as provided in Section 11425.30.
(5) The presiding officer is subject to disqualification for bias, prejudice, or interest as provided in Section 11425.40.
(6) The decision shall be in writing, be based on the record, and include a statement of the factual and legal basis of the decision as provided in Section 11425.50.
(7) A decision may not be relied on as precedent unless the agency designates and indexes the decision as precedent as provided in Section 11425.60.
(8) Ex parte communications shall be restricted as provided in Article 7 (commencing with Section 11430.10).
(9) Language assistance shall be made available as provided in Article 8 (commencing with Section 11435.05) by an agency described in Section 11018 or 11435.15.
(b) The requirements of this section apply to the governing procedure by which an agency conducts an adjudicative proceeding without further action by the agency, and prevail over a conflicting or inconsistent provision of the governing procedure, subject to Section 11415.20. The governing procedure by which an agency conducts an adjudicative proceeding may include provisions equivalent to, or more protective of the rights of the person to which the agency action is directed than, the requirements of this section.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11425.20. Hearings open to the public; Order for closure
(a) A hearing shall be open to public observation. Nothing in this subdivision limits the authority of the presiding officer to order closure of a hearing or make other protective orders to the extent necessary or proper for any of the following purposes:
(1) To satisfy the United States Constitution, the California Constitution, federal or state statute, or other law, including but not limited to laws protecting privileged, confidential, or other protected information.
(2) To ensure a fair hearing in the circumstances of the particular case.
(3) To conduct the hearing, including the manner of examining witnesses, in a way that is appropriate to protect a minor witness or a witness with a developmental disability, as defined in Section 4512 of the Welfare and Institutions Code, from intimidation or other harm, taking into account the rights of all persons.
(b) To the extent a hearing is conducted by telephone, television, or other electronic means, subdivision (a) is satisfied if members of the public have an opportunity to do both of the following:
(1) At reasonable times, hear or inspect the agency's record, and inspect any transcript obtained by the agency.
(2) Be physically present at the place where the presiding officer is conducting the hearing.
(c) This section does not apply to a prehearing conference, settlement conference, or proceedings for alternative dispute resolution other than binding arbitration.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11425.30. Specified persons not to serve as presiding officer
(a) A person may not serve as presiding officer in an adjudicative proceeding in any of the following circumstances:
(1) The person has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage.
(2) The person is subject to the authority, direction, or discretion of a person who has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage.
(b) Notwithstanding subdivision (a):
(1) A person may serve as presiding officer at successive stages of an adjudicative proceeding.
(2) A person who has participated only as a decisionmaker or as an advisor to a decisionmaker in a determination of probable cause or other equivalent preliminary determination in an adjudicative proceeding or its preadjudicative stage may serve as presiding officer in the proceeding.
(c) The provisions of this section governing separation of functions as to the presiding officer also govern separation of functions as to the agency head or other person or body to which the power to hear or decide in the proceeding is delegated.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11425.40. Disqualification of presiding officer
(a) The presiding officer is subject to disqualification for bias, prejudice, or interest in the proceeding.
(b) It is not alone or in itself grounds for disqualification, without further evidence of bias, prejudice, or interest, that the presiding officer:
(1) Is or is not a member of a racial, ethnic, religious, sexual, or similar group and the proceeding involves the rights of that group.
(2) Has experience, technical competence, or specialized knowledge of, or has in any capacity expressed a view on, a legal, factual, or policy issue presented in the proceeding.
(3) Has as a lawyer or public official participated in the drafting of laws or regulations or in the effort to pass or defeat laws or regulations, the meaning, effect, or application of which is in issue in the proceeding.
(c) The provisions of this section governing disqualification of the presiding officer also govern disqualification of the agency head or other person or body to which the power to hear or decide in the proceeding is delegated.
(d) An agency that conducts an adjudicative proceeding may provide by regulation for peremptory challenge of the presiding officer.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11425.50. Decision to be in writing; Statement of factual and legal basis(a) The decision shall be in writing and shall include a statement of the factual and legal basis for the decision.
(b) The statement of the factual basis for the decision may be in the language of, or by reference to, the pleadings. If the statement is no more than mere repetition or paraphrase of the relevant statute or regulation, the statement shall be accompanied by a concise and explicit statement of the underlying facts of record that support the decision. If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.
(c) The statement of the factual basis for the decision shall be based exclusively on the evidence of record in the proceeding and on matters officially noticed in the proceeding. The presiding officer's experience, technical competence, and specialized knowledge may be used in evaluating evidence.
(d) Nothing in this section limits the information that may be contained in the decision, including a summary of evidence relied on.
(e) A penalty may not be based on a guideline, criterion, bulletin, manual, instruction, order, standard of general application or other rule subject to Chapter 3.5 (commencing with Section 11340) unless it has been adopted as a regulation pursuant to Chapter 3.5 (commencing with Section 11340).
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11425.60. Decisions relied on as precedents
(a) A decision may not be expressly relied on as precedent unless it is designated as a precedent decision by the agency.
(b) An agency may designate as a precedent decision a decision or part of a decision that contains a significant legal or policy determination of general application that is likely to recur. Designation of a decision or part of a decision as a precedent decision is not rulemaking and need not be done under Chapter 3.5 (commencing with Section 11340). An agency's designation of a decision or part of a decision, or failure to designate a decision or part of a decision, as a precedent decision is not subject to judicial review.
(c) An agency shall maintain an index of significant legal and policy determinations made in precedent decisions. The index shall be updated not less frequently than annually, unless no precedent decision has been designated since the last preceding update. The index shall be made available to the public by subscription, and its availability shall be publicized annually in the California Regulatory Notice Register.
(d) This section applies to decisions issued on or after July 1, 1997. Nothing in this section precludes an agency from designating and indexing as a precedent decision a decision issued before July 1, 1997.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997. Amended Stats 1996 ch 390 § 8 (SB 794), effective August 19, 1996, operative July 1, 1997.
ARTICLE 7
Ex Parte Communications
§ 11430.10. Ex parte communications
(a) While the proceeding is pending there shall be no communication, direct or indirect, regarding any issue in the proceeding, to the presiding officer from an employee or representative of an agency that is a party or from an interested person outside the agency, without notice and opportunity for all parties to participate in the communication.
(b) Nothing in this section precludes a communication, including a communication from an employee or representative of an agency that is a party, made on the record at the hearing.
(c) For the purpose of this section, a proceeding is pending from the issuance of the agency's pleading, or from an application for an agency decision, whichever is earlier.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11430.20. Permissible communicationsA communication otherwise prohibited by Section 11430.10 is permissible in any of the following circumstances:
(a) The communication is required for disposition of an ex parte matter specifically authorized by statute.
(b) The communication concerns a matter of procedure or practice, including a request for a continuance, that is not in controversy.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11430.30. Permissible ex parte communication from agency that is partyA communication otherwise prohibited by Section 11430.10 from an employee or representative of an agency that is a party to the presiding officer is permissible in any of the following circumstances:
(a) The communication is for the purpose of assistance and advice to the presiding officer from a person who has not served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. An assistant or advisor may evaluate the evidence in the record but shall not furnish, augment, diminish, or modify the evidence in the record.
(b) The communication is for the purpose of advising the presiding officer concerning a settlement proposal advocated by the advisor.
(c) The communication is for the purpose of advising the presiding officer concerning any of the following matters in an adjudicative proceeding that is nonprosecutorial in character:
(1) The advice involves a technical issue in the proceeding and the advice is necessary for, and is not otherwise reasonably available to, the presiding officer, provided the content of the advice is disclosed on the record and all parties are given an opportunity to address it in the manner provided in Section 11430.50.
(2) The advice involves an issue in a proceeding of the San Francisco Bay Conservation and Development Commission, California Tahoe Regional Planning Agency, Delta Protection Commission, Water Resources Control Board, or a regional water quality control board.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11430.40. Disclosure of communication received while proceeding is pending
If, while the proceeding is pending but before serving as presiding officer, a person receives a communication of a type that would be in violation of this article if received while serving as presiding officer, the person, promptly after starting to serve, shall disclose the content of the communication on the record and give all parties an opportunity to address it in the manner provided in Section 11430.50.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11430.50. Communication in violation of provisions
(a) If a presiding officer receives a communication in violation of this article, the presiding officer shall make all of the following a part of the record in the proceeding:
(1) If the communication is written, the writing and any written response of the presiding officer to the communication.
(2) If the communication is oral, a memorandum stating the substance of the communication, any response made by the presiding officer, and the identity of each person from whom the presiding officer received the communication.
(b) The presiding officer shall notify all parties that a communication described in this section has been made a part of the record.
(c) If a party requests an opportunity to address the communication within 10 days after receipt of notice of the communication:
(1) The party shall be allowed to comment on the communication.
(2) The presiding officer has discretion to allow the party to present evidence concerning the subject of the communication, including discretion to reopen a hearing that has been concluded.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11430.60. Prohibited communication as grounds to disqualify presiding officer
Receipt by the presiding officer of a communication in violation of this article may be grounds for disqualification of the presiding officer. If the presiding officer is disqualified, the portion of the record pertaining to the ex parte communication may be sealed by protective order of the disqualified presiding officer.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11430.70. Agency head delegated to hear or decide proceeding
(a) Subject to subdivision (b), the provisions of this article governing ex parte communications to the presiding officer also govern ex parte communications in an adjudicative proceeding to the agency head or other person or body to which the power to hear or decide in the proceeding is delegated.
(b) An ex parte communication to the agency head or other person or body to which the power to hear or decide in the proceeding is delegated is permissible in an individualized ratemaking proceeding if the content of the communication is disclosed on the record and all parties are given an opportunity to address it in the manner provided in Section 11430.50.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11430.80. Communication between presiding officer and agency head delegated to hear proceeding
(a) There shall be no communication, direct or indirect, while a proceeding is pending regarding the merits of any issue in the proceeding, between the presiding officer and the agency head or other person or body to which the power to hear or decide in the proceeding is delegated.
(b) This section does not apply where the agency head or other person or body to which the power to hear or decide in the proceeding is delegated serves as both presiding officer and agency head, or where the presiding officer does not issue a decision in the proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
ARTICLE 8
Language Assistance
§ 11435.05. "Language assistance"As used in this article, "language assistance" means oral interpretation or written translation into English of a language other than English or of English into another language for a party or witness who cannot speak or understand English or who can do so only with difficulty.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.10. Interpretation for deaf or hard-of-hearing personsNothing in this article limits the application or effect of Section 754 of the Evidence Code to interpretation for a deaf or hard-of-hearing party or witness in an adjudicative proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.15. Provision of language assistance by state agencies
(a) The following state agencies shall provide language assistance in adjudicative proceedings to the extent provided in this article:
Agricultural Labor Relations Board
Department of Alcohol and Drug Abuse
State Athletic Commission
California Unemployment Insurance Appeals Board
Board of Prison Terms
State Board of Barbering and Cosmetology
State Department of Developmental Services
Public Employment Relations Board
Franchise Tax Board
State Department of Health Services
Department of Housing and Community Development
Department of Industrial Relations
State Department of Mental Health
Department of Motor Vehicles
Notary Public Section, Office of the Secretary of State
Public Utilities Commission
Office of Statewide Health Planning and Development
State Department of Social Services
Workers' Compensation Appeals Board
Department of the Youth Authority
Youthful Offender Parole Board
Department of Insurance
State Personnel Board
California Board of Podiatric Medicine
Board of Psychology
(b) Nothing in this section prevents an agency other than an agency listed in subdivision (a) from electing to adopt any of the procedures in this article, provided that any selection of an interpreter is subject to Section 11435.30.
(c) Nothing in this section prohibits an agency from providing an interpreter during a proceeding to which this chapter does not apply, including an informal factfinding or informal investigatory hearing.
(d) This article applies to an agency listed in subdivision (a) notwithstanding a general provision that this chapter does not apply to some or all of an agency's adjudicative proceedings.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997. Amended Stats 1996 ch 390 § 5, effective August 19, 1996, operative July 1, 1997.
§ 11435.20. Hearing or medical examination to be conducted in English
(a) The hearing, or any medical examination conducted for the purpose of determining compensation or monetary award, shall be conducted in English.
(b) If a party or the party's witness does not proficiently speak or understand English and before commencement of the hearing or medical examination requests language assistance, an agency subject to the language assistance requirement of this article shall provide the party or witness an interpreter.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.25. Cost of providing interpreter
(a) The cost of providing an interpreter under this article shall be paid by the agency having jurisdiction over the matter if the presiding officer so directs, otherwise by the party at whose request the interpreter is provided.
(b) The presiding officer's decision to direct payment shall be based upon an equitable consideration of all the circumstances in each case, such as the ability of the party in need of the interpreter to pay.
(c) Notwithstanding any other provision of this section, in a hearing before the Workers' Compensation Appeals Board or the Division of Workers' Compensation relating to workers' compensation claims, the payment of the costs of providing an interpreter shall be governed by the rules and regulations promulgated by the Workers' Compensation Appeals Board or the Administrative Director of the Division of Workers' Compensation, as appropriate.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.30. Publication of list of certified interpreters
(a) The State Personnel Board shall establish, maintain, administer, and publish annually an updated list of certified administrative hearing interpreters it has determined meet the minimum standards in interpreting skills and linguistic abilities in languages designated pursuant to Section 11435.40. Any interpreter so listed may be examined by each employing agency to determine the interpreter's knowledge of the employing agency's technical program terminology and procedures.
(b) Court interpreters certified pursuant to Section 68562, and interpreters listed on the State Personnel Board's recommended lists of court and administrative hearing interpreters prior to July 1, 1993, shall be deemed certified for purposes of this section.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.35. Publication of list of certified medical examination interpreters
(a) The State Personnel Board shall establish, maintain, administer, and publish annually, an updated list of certified medical examination interpreters it has determined meet the minimum standards in interpreting skills and linguistic abilities in languages designated pursuant to Section 11435.40.
(b) Court interpreters certified pursuant to Section 68562 and administrative hearing interpreters certified pursuant to Section 11435.30 shall be deemed certified for purposes of this section.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.40. Designation of languages for certification(a) The State Personnel Board shall designate the languages for which certification shall be established under Sections 11435.30 and 11435.35. The languages designated shall include, but not be limited to, Spanish, Tagalog, Arabic, Cantonese, Japanese, Korean, Portuguese, and Vietnamese until the State Personnel Board finds that there is an insufficient need for interpreting assistance in these languages.
(b) The language designations shall be based on the following:
(1) The language needs of non-English-speaking persons appearing before the administrative agencies, as determined by consultation with the agencies.
(2) The cost of developing a language examination.
(3) The availability of experts needed to develop a language examination.
(4) Other information the board deems relevant.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.45. Application fees to take interpreter examinations
(a) The State Personnel Board shall establish and charge fees for applications to take interpreter examinations and for renewal of certifications. The purpose of these fees is to cover the annual projected costs of carrying out this article. The fees may be adjusted each fiscal year by a percent that is equal to or less than the percent change in the California Necessities Index prepared by the Commission on State Finance.
(b) Each certified administrative hearing interpreter and each certified medical examination interpreter shall pay a fee, due on July 1 of each year, for the renewal of the certification. Court interpreters certified under Section 68562 shall not pay any fees required by this section.
(c) If the amount of money collected in fees is not sufficient to cover the costs of carrying out this article, the board shall charge and be reimbursed a pro rata share of the additional costs by the state agencies that conduct administrative hearings.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.50. Removal of person from list of certified interpretersThe State Personnel Board may remove the name of a person from the list of certified interpreters if any of the following conditions occurs:
(a) The person is deceased.
(b) The person notifies the board that the person is unavailable for work.
(c) The person does not submit a renewal fee as required by Section 11435.45.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.55. Qualification and use of noncertified interpreters
(a) An interpreter used in a hearing shall be certified pursuant to Section 11435.30. However, if an interpreter certified pursuant to Section 11435.30 cannot be present at the hearing, the hearing agency shall have discretionary authority to provisionally qualify and use another interpreter.
(b) An interpreter used in a medical examination shall be certified pursuant to Section 11435.35. However, if an interpreter certified pursuant to Section 11435.35 cannot be present at the medical examination, the physician provisionally may use another interpreter if that fact is noted in the record of the medical evaluation.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.60. Party to be advised of right to interpreterEvery agency subject to the language assistance requirement of this article shall advise each party of the right to an interpreter at the same time that each party is advised of the hearing date or medical examination. Each party in need of an interpreter shall also be encouraged to give timely notice to the agency conducting the hearing or medical examination so that appropriate arrangements can be made.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11435.65. Rules of confidentiality applicable to interpreters
(a) The rules of confidentiality of the agency, if any, that apply in an adjudicative proceeding shall apply to any interpreter in the hearing or medical examination, whether or not the rules so state.
(b) The interpreter shall not have had any involvement in the issues of the case prior to the hearing.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
ARTICLE 9
General Procedural Provisions
§ 11440.10. Review of decision(a) The agency head may do any of the following with respect to a decision of the presiding officer or the agency:
(1) Determine to review some but not all issues, or not to exercise any review.
(2) Delegate its review authority to one or more persons.
(3) Authorize review by one or more persons, subject to further review by the agency head.
(b) By regulation an agency may mandate review, or may preclude or limit review, of a decision of the presiding officer or the agency.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11440.20. Service of writing; Notice
Service of a writing on, or giving of a notice to, a person in a procedure provided in this chapter is subject to the following provisions:
(a) The writing or notice shall be delivered personally or sent by mail or other means to the person at the person's last known address or, if the person is a party with an attorney or other authorized representative of record in the proceeding, to the party's attorney or other authorized representative. If a party is required by statute or regulation to maintain an address with an agency, the party's last known address is the address maintained with the agency.
(b) Unless a provision specifies the form of mail, service or notice by mail may be by first-class mail, registered mail, or certified mail, by mail delivery service, by facsimile transmission if complete and without error, or by other electronic means as provided by regulation, in the discretion of the sender.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11440.30. Conduct of hearing by telephone, television, or other electronic means
(a) The presiding officer may conduct all or part of a hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits.
(b) The presiding officer may not conduct all or part of a hearing by telephone, television, or other electronic means if a party objects.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11440.40. Proceedings involving sexual offenses; Limitations on evidence
(a) In any proceeding under subdivision (h) or (i) of Section 12940, or Section 19572 or 19702, alleging conduct that constitutes sexual harassment, sexual assault, or sexual battery, evidence of specific instances of a complainant's sexual conduct with individuals other than the alleged perpetrator is subject to all of the following limitations:
(1) The evidence is not discoverable unless it is to be offered at a hearing to attack the credibility of the complainant as provided for under subdivision (b). This paragraph is intended only to limit the scope of discovery; it is not intended to affect the methods of discovery allowed by statute.
(2) The evidence is not admissible at the hearing unless offered to attack the credibility of the complainant as provided for under subdivision (b). Reputation or opinion evidence regarding the sexual behavior of the complainant is not admissible for any purpose.
(b) Evidence of specific instances of a complainant's sexual conduct with individuals other than the alleged perpetrator is presumed inadmissible absent an offer of proof establishing its relevance and reliability and that its probative value is not substantially outweighed by the probability that its admission will create substantial danger of undue prejudice or confuse the issue.
(c) As used in this section "complainant" means a person claiming to have been subjected to conduct that constitutes sexual harassment, sexual assault, or sexual battery.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11440.45. Benevolent gestures as admission of liability; Limitations on evidence
(a) In any proceedings pursuant to this chapter or Chapter 5 (commencing with Section 11500), the portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.
(b) For purposes of this section:
(1) "Accident" means an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party.
(2) "Benevolent gestures" means actions which convey a sense of compassion or commiseration emanating from humane impulses.
(3) "Family" means the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted children of parent, or spouse's parents of an injured party.
HISTORY:
Added Stats 2002 ch 92 § 1 (AB 2723).
§11440.50. Intervention; Grant of motion; Conditions
(a) This section applies in adjudicative proceedings of an agency if the agency by regulation provides that this section is applicable in the proceedings.
(b) The presiding officer shall grant a motion for intervention if all of the following conditions are satisfied:
(1) The motion is submitted in writing, with copies served on all parties named in the agency's pleading.
(2) The motion is made as early as practicable in advance of the hearing. If there is a prehearing conference, the motion shall be made in advance of the prehearing conference and shall be resolved at the prehearing conference.
(3) The motion states facts demonstrating that the applicant' s legal rights, duties, privileges, or immunities will be substantially affected by the proceeding or that the applicant qualifies as an intervenor under a statute or regulation.
(4) The presiding officer determines that the interests of justice and the orderly and prompt conduct of the proceeding will not be impaired by allowing the intervention.
(c) If an applicant qualifies for intervention, the presiding officer may impose conditions on the intervenor's participation in the proceeding, either at the time that intervention is granted or at a subsequent time. Conditions may include the following:
(1) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the motion.
(2) Limiting or excluding the use of discovery, cross-examination, and other procedures involving the intervenor so as to promote the orderly and prompt conduct of the proceeding.
(3) Requiring two or more intervenors to combine their presentations of evidence and argument, cross-examination, discovery, and other participation in the proceeding.
(4) Limiting or excluding the intervenor's participation in settlement negotiations.
(d) As early as practicable in advance of the hearing the presiding officer shall issue an order granting or denying the motion for intervention, specifying any conditions, and briefly stating the reasons for the order. The presiding officer may modify the order at any time, stating the reasons for the modification. The presiding officer shall promptly give notice of an order granting, denying, or modifying intervention to the applicant and to all parties.
(e) Whether the interests of justice and the orderly and prompt conduct of the proceedings will be impaired by allowing intervention is a determination to be made in the sole discretion, and based on the knowledge and judgment at that time, of the presiding officer. The determination is not subject to administrative or judicial review.
(f) Nothing in this section precludes an agency from adopting a regulation that permits participation by a person short of intervention as a party, subject to Article 7 (commencing with Section 11430.10) of Chapter 4.5.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11440.60. Indication of person paying for written communication
(a) For purposes of this section, the following terms have the following meaning:
(1) "Quasi-judicial proceeding" means any of the following:
(A) A proceeding to determine the rights or duties of a person under existing laws, regulations, or policies.
(B) A proceeding involving the issuance, amendment, or revocation of a permit or license.
(C) A proceeding to enforce compliance with existing law or to impose sanctions for violations of existing law.
(D) A proceeding at which action is taken involving the purchase or sale of property, goods, or services by an agency.
(E) A proceeding at which an action is taken awarding a grant or a contract.
(2) "Written communication" means any report, study, survey, analysis, letter, or any other written document.
(b) Any person submitting a written communication, which is specifically generated for the purpose of being presented at the agency hearing to which it is being communicated, to a state agency in a quasi-judicial proceeding that is directly paid for by anyone other than the person who submitted the written communication shall clearly indicate any person who paid to produce the written communication.
(c) A state agency may refuse or ignore a written communication submitted by an attorney or any other authorized representative on behalf of a client in a quasi-judicial proceeding, unless the written communication clearly indicates the client on whose behalf the communication is submitted to the state agency.
HISTORY:
Added Stats 1997 ch 192 § 1 (SB 504).
ARTICLE 10
Informal Hearing
§ 11445.10. Legislative findings and declarations(a) Subject to the limitations in this article, an agency may conduct an adjudicative proceeding under the informal hearing procedure provided in this article.
(b) The Legislature finds and declares the following:
(1) The informal hearing procedure is intended to satisfy due process and public policy requirements in a manner that is simpler and more expeditious than hearing procedures otherwise required by statute, for use in appropriate circumstances.
(2) The informal hearing procedure provides a forum in the nature of a conference in which a party has an opportunity to be heard by the presiding officer.
(3) The informal hearing procedure provides a forum that may accommodate a hearing where by regulation or statute a member of the public may participate without appearing or intervening as a party.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11445.20. Circumstances permitting use of informal hearing procedure
Subject to Section 11445.30, an agency may use an informal hearing procedure in any of the following proceedings, if in the circumstances its use does not violate another statute or the federal or state Constitution:
(a) A proceeding where there is no disputed issue of material fact.
(b) A proceeding where there is a disputed issue of material fact, if the matter is limited to any of the following:
(1) A monetary amount of not more than one thousand dollars ($ 1,000).
(2) A disciplinary sanction against a student that does not involve expulsion from an academic institution or suspension for more than 10 days.
(3) A disciplinary sanction against an employee that does not involve discharge from employment, demotion, or suspension for more than 5 days.
(4) A disciplinary sanction against a licensee that does not involve an actual revocation of a license or an actual suspension of a license for more than five days. Nothing in this section precludes an agency from imposing a stayed revocation or a stayed suspension of a license in an informal hearing.
(c) A proceeding where, by regulation, the agency has authorized use of an informal hearing.
(d) A proceeding where an evidentiary hearing for determination of facts is not required by statute but where the agency determines the federal or state Constitution may require a hearing.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11445.30. Notice of informal hearing
(a) The notice of hearing shall state the agency's selection of the informal hearing procedure.
(b) Any objection of a party to use of the informal hearing procedure shall be made in the party's pleading.
(c) An objection to use of the informal hearing procedure shall be resolved by the presiding officer before the hearing on the basis of the pleadings and any written submissions in support of the pleadings. An objection to use of the informal hearing procedure in a disciplinary proceeding involving an occupational license shall be resolved in favor of the licensee.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11445.40. Application of procedures otherwise required
(a) Except as provided in this article, the hearing procedures otherwise required by statute for an adjudicative proceeding apply to an informal hearing.
(b) In an informal hearing the presiding officer shall regulate the course of the proceeding. The presiding officer shall permit the parties and may permit others to offer written or oral comments on the issues. The presiding officer may limit the use of witnesses, testimony, evidence, and argument, and may limit or eliminate the use of pleadings, intervention, discovery, prehearing conferences, and rebuttal.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11445.50. Denial of use of informal procedure; Conversion to formal hearing; Cross-examination
(a) The presiding officer may deny use of the informal hearing procedure, or may convert an informal hearing to a formal hearing after an informal hearing is commenced, if it appears to the presiding officer that cross-examination is necessary for proper determination of the matter and that the delay, burden, or complication due to allowing cross-examination in the informal hearing will be more than minimal.
(b) An agency, by regulation, may specify categories of cases in which cross-examination is deemed not necessary for proper determination of the matter under the informal hearing procedure. The presiding officer may allow cross-examination of witnesses in an informal hearing notwithstanding an agency regulation if it appears to the presiding officer that in the circumstances cross-examination is necessary for proper determination of the matter.
(c) The actions of the presiding officer under this section are not subject to judicial review.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11445.60. Identity of witnesses or other sources
(a) If the presiding officer has reason to believe that material facts are in dispute, the presiding officer may require a party to state the identity of the witnesses or other sources through which the party would propose to present proof if the proceeding were converted to a formal or other applicable hearing procedure. If disclosure of a fact, allegation, or source is privileged or expressly prohibited by a regulation, statute, or the federal or state Constitution, the presiding officer may require the party to indicate that confidential facts, allegations, or sources are involved, but not to disclose the confidential facts, allegations, or sources.
(b) If a party has reason to believe that essential facts must be obtained in order to permit an adequate presentation of the case, the party may inform the presiding officer regarding the general nature of the facts and the sources from which the party would propose to obtain the facts if the proceeding were converted to a formal or other applicable hearing procedure.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
ARTICLE 11
Subpoenas
§ 11450.05. Application of article
(a) This article applies in an adjudicative proceeding required to be conducted under Chapter 5 (commencing with Section 11500).
(b) An agency may use the subpoena procedure provided in this article in an adjudicative proceeding not required to be conducted under Chapter 5 (commencing with Section 11500), in which case all the provisions of this article apply including, but not limited to, issuance of a subpoena at the request of a party or by the attorney of record for a party under Section 11450.20.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11450.10. Issuance for attendance or production of documents
(a) Subpoenas and subpoenas duces tecum may be issued for attendance at a hearing and for production of documents at any reasonable time and place or at a hearing.
(b) The custodian of documents that are the subject of a subpoena duces tecum may satisfy the subpoena by delivery of the documents or a copy of the documents, or by making the documents available for inspection or copying, together with an affidavit in compliance with Section 1561 of the Evidence Code.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11450.20. Persons who may issue subpoenas; Service (a) Subpoenas and subpoenas duces tecum shall be issued by the agency or presiding officer at the request of a party, or by the attorney of record for a party, in accordance with Section 1985 to 1985.4, inclusive, of the Code of Civil Procedure.
(b) The process extends to all parts of the state and shall be served in accordance with Sectopms 1987 and 1988 of the Code of Civil Procedure. A subpoena or subpoena duces tecum may also be delivered by certified mail return receipt requested or by messenger. Service by messenger shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, or in person, and identifies himself or herself either by reference to date of birth and driver's license number or Department of Motor Vehicles identification number, or the sender may verify receipt of the subpoena by obtaining other identifying information from the recipient. The sender shall make a written notation of the acknowledgment. A subpoena issued and acknowledged pursuant to this section has the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt and the subpoena may so state. A party requesting a continuance based upon the failure of a witness to appear at the time and place required for the appearance or testimony pursuant to a subpoena, shall prove that the party has complied with this section. The continuance shall only be granted for a period of time that would allow personal service of the subpoena and in no event longer than that allowed by law.
(c) No witness is obliged to attend unless the witness is a resident of the state at the time of service.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11450.30. Objection to subpoena; Motion for protective order; Motion to quash
(a) A person served with a subpoena or a subpoena duces tecum may object to its terms by a motion for a protective order, including a motion to quash.
(b) The objection shall be resolved by the presiding officer on terms and conditions that the presiding officer declares. The presiding officer may make another order that is appropriate to protect the parties or the witness from unreasonable or oppressive demands, including violations of the right to privacy.
(c) A subpoena or a subpoena duces tecum issued by the agency on its own motion may be quashed by the agency.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11450.40. Witness's mileage and fees
A witness appearing pursuant to a subpoena or a subpoena duces tecum, other than a party, shall receive for the appearance the following mileage and fees, to be paid by the party at whose request the witness is subpoenaed:
(a) The same mileage allowed by law to a witness in a civil case.
(b) The same fees allowed by law to a witness in a civil case. This subdivision does not apply to an officer or employee of the state or a political subdivision of the state.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11450.50. Written notice to witness to attend; Service
(a) In the case of the production of a party to the record of a proceeding or of a person for whose benefit a proceeding is prosecuted or defended, the service of a subpoena on the witness is not required if written notice requesting the witness to attend, with the time and place of the hearing, is served on the attorney of the party or person.
(b) Service of written notice to attend under this section shall be made in the manner and is subject to the conditions provided in Section 1987 of the Code of Civil Procedure for service of written notice to attend in a civil action or proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
ARTICLE 12
Enforcement of Orders and Sanctions
§ 11455.10. Grounds for contempt sanction
A person is subject to the contempt sanction for any of the following in an adjudicative proceeding before an agency:
(a) Disobedience of or resistance to a lawful order.
(b) Refusal to take the oath or affirmation as a witness or thereafter refusal to be examined.
(c) Obstruction or interruption of the due course of the proceeding during a hearing or near the place of the hearing by any of the following:
(1) Disorderly, contemptuous, or insolent behavior toward the presiding officer while conducting the proceeding.
(2) Breach of the peace, boisterous conduct, or violent disturbance.
(3) Other unlawful interference with the process or proceedings of the agency.
(d) Violation of the prohibition of ex parte communications under Article 7 (commencing with Section 11430.10).
(e) Failure or refusal, without substantial justification, to comply with a deposition order, discovery request, subpoena, or other order of the presiding officer, or moving, without substantial justification, to compel discovery.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11455.20. Certification of facts to justify contempt sanction; Other procedure(a) The presiding officer or agency head may certify the facts that justify the contempt sanction against a person to the superior court in and for the county where the proceeding is conducted. The court shall thereupon issue an order directing the person to appear before the court at a specified time and place, and then and there to show cause why the person should not be punished for contempt. The order and a copy of the certified statement shall be served on the person. Upon service of the order and a copy of the certified statement, the court has jurisdiction of the matter.
(b) The same proceedings shall be had, the same penalties may be imposed, and the person charged may purge the contempt in the same way, as in the case of a person who has committed a contempt in the trial of a civil action before a superior court.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11455.30. Bad faith actions; Order to pay expenses including attorney's fees
(a) The presiding officer may order a party, the party's attorney or other authorized representative, or both, to pay reasonable expenses, including attorney's fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay as defined in Section 128.5 of the Code of Civil Procedure.
(b) The order, or denial of an order, is subject to judicial review in the same manner as a decision in the proceeding. The order is enforceable in the same manner as a money judgment or by the contempt sanction.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
ARTICLE 13
Emergency Decision
§ 11460.10. Conduct of proceeding under emergency procedure
Subject to the limitations in this article, an agency may conduct an adjudicative proceeding under the emergency decision procedure provided in this article.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11460.20. Emergency decision
(a) An agency may issue an emergency decision for temporary, interim relief under this article if the agency has adopted a regulation that provides that the agency may use the procedure provided in this article.
(b) The regulation shall elaborate the application of the provisions of this article to an emergency decision by the agency, including all of the following:
(1) Define the specific circumstances in which an emergency decision may be issued under this article.
(2) State the nature of the temporary, interim relief that the agency may order.
(3) Prescribe the procedures that will be available before and after issuance of an emergency decision under this article. The procedures may be more protective of the person to which the agency action is directed than those provided in this article.
(c) This article does not apply to an emergency decision, including a cease and desist order or an interim or temporary suspension order, issued pursuant to other express statutory authority.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11460.30. Conditions for issuance of emergency decision
(a) An agency may only issue an emergency decision under this article in a situation involving an immediate danger to the public health, safety, or welfare that requires immediate agency action.
(b) An agency may only take action under this article that is necessary to prevent or avoid the immediate danger to the public health, safety, or welfare that justifies issuance of an emergency decision.
(c) An emergency decision issued under this article is limited to temporary, interim relief. The temporary, interim relief is subject to judicial review under Section 11460.80, and the underlying issue giving rise to the temporary, interim relief is subject to an adjudicative proceeding pursuant to Section 11460.60.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11460.40. Notice and hearing prior to decision(a) Before issuing an emergency decision under this article, the agency shall, if practicable, give the person to which the agency action is directed notice and an opportunity to be heard.
(b) Notice and hearing under this section may be oral or written, including notice and hearing by telephone, facsimile transmission, or other electronic means, as the circumstances permit. The hearing may be conducted in the same manner as an informal hearing.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11460.50. Statement of factual and legal basis and reasons for emergency decision
(a) The agency shall issue an emergency decision, including a brief explanation of the factual and legal basis and reasons for the emergency decision, to justify the determination of an immediate danger and the agency's emergency decision to take the specific action.
(b) The agency shall give notice to the extent practicable to the person to which the agency action is directed. The emergency decision is effective when issued or as provided in the decision.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11460.60. Formal or informal proceeding after issuance of emergency decision
(a) After issuing an emergency decision under this article for temporary, interim relief, the agency shall conduct an adjudicative proceeding under a formal, informal, or other applicable hearing procedure to resolve the underlying issues giving rise to the temporary, interim relief.
(b) The agency shall commence an adjudicative proceeding under another procedure within 10 days after issuing an emergency decision under this article, notwithstanding the pendency of proceedings for judicial review of the emergency decision.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11460.70. Agency record
The agency record consists of any documents concerning the matter that were considered or prepared by the agency. The agency shall maintain these documents as its official record.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11460.80. Judicial review of decision
(a) On issuance of an emergency decision under this article, the person to which the agency action is directed may obtain judicial review of the decision in the manner provided in this section without exhaustion of administrative remedies.
(b) Judicial review under this section shall be pursuant to Section 1094.5 of the Code of Civil Procedure, subject to the following provisions:
(1) The hearing shall be on the earliest day that the business of the court will admit of, but not later than 15 days after service of the petition on the agency.
(2) Where it is claimed that the findings are not supported by the evidence, 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.
(3) A party, on written request to another party, before the proceedings for review and within 10 days after issuance of the emergency decision, is entitled to appropriate discovery.
(4) The relief that may be ordered on judicial review is limited to a stay of the emergency decision.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
ARTICLE 14
Declaratory Decision
§ 11465.10. Conduct of proceeding under declaratory decision procedure
Subject to the limitations in this article, an agency may conduct an adjudicative proceeding under the declaratory decision procedure provided in this article.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11465.20. Application; Issuance of decision
(a) A person may apply to an agency for a declaratory decision as to the applicability to specified circumstances of a statute, regulation, or decision within the primary jurisdiction of the agency.
(b) The agency in its discretion may issue a declaratory decision in response to the application. The agency shall not issue a declaratory decision if any of the following applies:
(1) Issuance of the decision would be contrary to a regulation adopted under this article.
(2) The decision would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory decision proceeding.
(3) The decision involves a matter that is the subject of pending administrative or judicial proceedings.
(c) An application for a declaratory decision is not required for exhaustion of the applicant's administrative remedies for purposes of judicial review.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11465.30. Notice of application for decision
Within 30 days after receipt of an application for a declaratory decision, an agency shall give notice of the application to all persons to which notice of an adjudicative proceeding is otherwise required, and may give notice to any other person.
