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.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11465.40. Applicable hearing procedure
The provisions of a formal, informal, or other applicable hearing procedure do not apply to an agency proceeding for a declaratory decision except to the extent provided in this article or to the extent the agency so provides by regulation or order.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11465.50. Actions of agency after receipt of application
(a) Within 60 days after receipt of an application for a declaratory decision, an agency shall do one of the following, in writing:
(1) Issue a decision declaring the applicability of the statute, regulation, or decision in question to the specified circumstances.
(2) Set the matter for specified proceedings.
(3) Agree to issue a declaratory decision by a specified time.
(4) Decline to issue a declaratory decision, stating in writing the reasons for its action. Agency action under this paragraph is not subject to judicial review.
(b) A copy of the agency's action under subdivision (a) shall be served promptly on the applicant and any other party.
(c) If an agency has not taken action under subdivision (a) within 60 days after receipt of an application for a declaratory decision, the agency is considered to have declined to issue a declaratory decision on the matter.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11465.60. Contents of decision; Status and binding effect of decision
(a) A declaratory decision shall contain the names of all parties to the proceeding, the particular facts on which it is based, and the reasons for its conclusion.
(b) A declaratory decision has the same status and binding effect as any other decision issued by the agency in an adjudicative proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11465.70. Model regulations
(a) The Office of Administrative Hearings shall adopt and promulgate model regulations under this article that are consistent with the public interest and with the general policy of this article to facilitate and encourage agency issuance of reliable advice. The model regulations shall provide for all of the following:
(1) A description of the classes of circumstances in which an agency will not issue a declaratory decision.
(2) The form, contents, and filing of an application for a declaratory decision.
(3) The procedural rights of a person in relation to an application.
(4) The disposition of an application.
(b) The regulations adopted by the Office of Administrative Hearings under this article apply in an adjudicative proceeding unless an agency adopts its own regulations to govern declaratory decisions of the agency.
(c) This article does not apply in an adjudicative proceeding to the extent an agency by regulation provides inconsistent rules or provides that this article is not applicable in a proceeding of the agency.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
ARTICLE 15
Conversion of Proceeding
§ 11470.10. Conversion into another type of proceeding
(a) Subject to any applicable regulation adopted under Section 11470.50, at any point in an agency proceeding the presiding officer or other agency official responsible for the proceeding:
(1) May convert the proceeding to another type of agency proceeding provided for by statute if the conversion is appropriate, is in the public interest, and does not substantially prejudice the rights of a party.
(2) Shall convert the proceeding to another type of agency proceeding provided for by statute, if required by regulation or statute.
(b) A proceeding of one type may be converted to a proceeding of another type only on notice to all parties to the original proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11470.20. Appointment of successor to preside over new proceeding
If the presiding officer or other agency official responsible for the original proceeding would not have authority over the new proceeding to which it is to be converted, the agency head shall appoint a successor to preside over or be responsible for the new proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11470.30. Record of original proceeding
To the extent practicable and consistent with the rights of parties and the requirements of this article relating to the new proceeding, the record of the original agency proceeding shall be used in the new agency proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11470.40. Duties of presiding officer of new proceeding
After a proceeding is converted from one type to another, the presiding officer or other agency official responsible for the new proceeding shall do all of the following:
(a) Give additional notice to parties or other persons necessary to satisfy the statutory requirements relating to the new proceeding.
(b) Dispose of the matters involved without further proceedings if sufficient proceedings have already been held to satisfy the statutory requirements relating to the new proceeding.
(c) Conduct or cause to be conducted any additional proceedings necessary to satisfy the statutory requirements relating to the new proceeding, and allow the parties a reasonable time to prepare for the new proceeding.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
§ 11470.50. Adoption of regulations to govern conversion
An agency may adopt regulations to govern the conversion of one type of proceeding to another. The regulations may include an enumeration of the factors to be considered in determining whether and under what circumstances one type of proceeding will be converted to another.
HISTORY:
Added Stats 1995 ch 938 § 21 (SB 523), operative July 1, 1997.
ARTICLE 16
Administrative Adjudication Code of Ethics
§ 11475. Name of rules
The rules imposed by this article may be referred to as the Administrative Adjudication Code of Ethics.
HISTORY:
Added Stats 1998 ch 95 § 1 (AB 2164).
§ 11475.10. Application
(a) This article applies to the following persons:
(1) An administrative law judge. As used in this subdivision, "administrative law judge" means an incumbent of that position, as defined by the State Personnel Board, for each class specification for Administrative Law Judge.
(2) A presiding officer to which this article is made applicable by statute or regulation.
(b) This article shall apply notwithstanding any general statutory provision that this chapter does not apply to some or all of a state agency's adjudicative proceedings.
HISTORY:
Added Stats 1998 ch 95 § 1 (AB 2164).
§ 11475.20. Law governing conduct
Except as otherwise provided in this article, the Code of Judicial Ethics adopted by the Supreme Court pursuant to subdivision (m) of Section 18 of Article VI of the California Constitution for the conduct of judges governs the hearing and nonhearing conduct of an administrative law judge or other presiding officer to which this article applies.
HISTORY:
Added Stats 1998 ch 95 § 1 (AB 2164).
§ 11475.30. Definitions
For the purpose of this article, the following terms used in the Code of Judicial Ethics have the meanings provided in this section:
(a) "Appeal" means administrative review.
(b) "Court" means the agency conducting an adjudicative proceeding.
(c) "Judge" means administrative law judge or other presiding officer to which this article applies. Related terms, including "judicial," "judiciary," and "justice," mean comparable concepts in administrative adjudication.
(d) "Law" includes regulation and precedent decision.
HISTORY:
Added Stats 1998 ch 95 § 1 (AB 2164).
§ 11475.40. Inapplicable provisions of Code of Judicial Ethics
The following provisions of the Code of Judicial Ethics do not apply under this article:
(a) Canon 3B(7), to the extent it relates to ex parte communications.
(b) Canon 3B(10).
(c) Canon 3D(3).
(d) Canon 4C.
(e) Canons 4E(1), 4F, and 4G.
(f) Canons 5A-5D. However, the introductory paragraph of Canon 5 applies to persons subject to this article notwithstanding Chapter 9.5 (commencing with Section 3201) of Division 4 of Title 1, relating to political activities of public employees.
(g) Canon 6.
HISTORY:
Added Stats 1998 ch 95 § 1 (AB 2164).
§ 11475.50. Violations
A violation of an applicable provision of the Code of Judicial Ethics, or a violation of the restrictions and prohibitions on accepting honoraria, gifts, or travel that otherwise apply to elected state officers pursuant to Chapter 9.5 (commencing with Section 89500) of Title 9, by an administrative law judge or other presiding officer to which this article applies is cause for discipline by the employing agency pursuant to Section 19572.
HISTORY:
Added Stats 1998 ch 95 § 1 (AB 2164).
§ 11475.60. Compliance requirements(a) Except as provided in subdivision (b), a person to whom this article applies shall comply immediately with all applicable provisions of the Code of Judicial Ethics.
(b) A person to whom this article applies shall comply with Canon 4D(2) of the Code of Judicial Ethics as soon as reasonably possible and shall do so in any event within a period of one year after the article becomes applicable.
HISTORY:
Added Stats 1998 ch 95 § 1 (AB 2164).
§ 11475.70. Construction and intent
Nothing in this article shall be construed or is intended to limit or affect the rights of an administrative law judge or other presiding officer under Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1.
HISTORY:
Added Stats 1998 ch 95 § 1 (AB 2164).
CHAPTER 5
ADMINISTRATIVE ADJUDICATION: FORMAL HEARING
§ 11500. Definitions
In this chapter unless the context or subject matter otherwise requires:
(a) "Agency" includes the state boards, commissions, and officers to which this chapter is made applicable by law, except that wherever the word "agency" alone is used the power to act may be delegated by the agency, and wherever the words "agency itself" are used the power to act shall not be delegated unless the statutes relating to the particular agency authorize the delegation of the agency's power to hear and decide.
(b) "Party" includes the agency, the respondent, and any person, other than an officer or an employee of the agency in his or her official capacity, who has been allowed to appear or participate in the proceeding.
(c) "Respondent" means any person against whom an accusation is filed pursuant to Section 11503 or against whom a statement of issues is filed pursuant to Section 11504.
(d) "Administrative law judge" means an individual qualified under Section 11502.
(e) "Agency member" means any person who is a member of any agency to which this chapter is applicable and includes any person who himself or herself constitutes an agency.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1947 ch 491 § 1, Stats 1977 ch 1057 § 1, operative July 1, 1978; Stats 1985 ch 324 § 15; Stats 1995 ch 938 § 23 (SB 523), operative July 1, 1997.
§ 11501. Application of chapter to agency
(a) This chapter applies to any agency as determined by the statutes relating to that agency.
(b) This chapter applies to an adjudicative proceeding of an agency created on or after July 1, 1997, unless the statutes relating to the proceeding provide otherwise.
(c) Chapter 4.5 (commencing with Section 11400) applies to an adjudicative proceeding required to be conducted under this chapter, unless the statutes relating to the proceeding provide otherwise.
HISTORY:
Added Stats 1995 ch 938 § 24.5 (SB 523), operative July 1, 1997.
§ 11502. Administrative law judges
(a) All hearings of state agencies required to be conducted under this chapter shall be conducted by administrative law judges on the staff of the Office of Administrative Hearings. This subdivision applies to a hearing required to be conducted under this chapter that is conducted under the informal hearing or emergency decision procedure provided in Chapter 4.5 (commencing with Section 11400).
(b) The Director of the Office of Administrative Hearings has power to appoint a staff of administrative law judges for the office as provided in Section 11370.3. Each administrative law judge shall have been admitted to practice law in this state for at least five years immediately preceding his or her appointment and shall possess any additional qualifications established by the State Personnel Board for the particular class of position involved.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1961 ch 2048 § 10; Stats 1971 ch 1303 § 7; Stats 1985 ch 324 § 16; Stats 1995 ch 938 § 26 (SB 523), operative July 1, 1997.
§ 11503. Accusation
A hearing to determine whether a right, authority, license or privilege should be revoked, suspended, limited or conditioned shall be initiated by filing an accusation. The accusation shall be a written statement of charges which shall set forth in ordinary and concise language the acts or omissions with which the respondent is charged, to the end that the respondent will be able to prepare his defense. It shall specify the statutes and rules which the respondent is alleged to have violated, but shall not consist merely of charges phrased in the language of such statutes and rules. The accusation shall be verified unless made by a public officer acting in his official capacity or by an employee of the agency before which the proceeding is to be held. The verification may be on information and belief.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1947 ch 491 § 3.
§ 11504. Statement of Issues
A hearing to determine whether a right, authority, license, or privilege should be granted, issued, or renewed shall be initiated by filing a statement of issues. The statement of issues shall be a written statement specifying the statutes and rules with which the respondent must show compliance by producing proof at the hearing and, in addition, any particular matters that have come to the attention of the initiating party and that would authorize a denial of the agency action sought. The statement of issues shall be verified unless made by a public officer acting in his or her official capacity or by an employee of the agency before which the proceeding is to be held. The verification may be on information and belief. The statement of issues shall be served in the same manner as an accusation, except that, if the hearing is held at the request of the respondent, Sections 11505 and 11506 shall not apply and the statement of issues together with the notice of hearing shall be delivered or mailed to the parties as provided in Section 11509. Unless a statement to respondent is served pursuant to Section 11505, a copy of Sections 11507.5, 11507.6, and 11507.7, and the name and address of the person to whom requests permitted by Section 11505 may be made, shall be served with the statement of issues.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1947 ch 491 § 4; Stats 1968 ch 808 § 1; Stats 1996 ch 124 § 36 (AB 3470); Stats 1997 ch 17 § 50 (SB 947).
§ 11504.5. Applicability of references to accusations to statements of issues
In the following sections of this chapter, all references to accusations shall be deemed to be applicable to statements of issues except in those cases mentioned in subdivision (a) of Section 11505 and Section 11506 where compliance is not required.
HISTORY:
Added Stats 1963 ch 856 § 1.
§ 11505. Service of accusation and accompanying papers; Notice of defense; Request for hearing(a) Upon the filing of the accusation the agency shall serve a copy thereof on the respondent as provided in subdivision (c). The agency may include with the accusation any information which it deems appropriate, but it shall include a post card or other form entitled Notice of Defense which, when signed by or on behalf of the respondent and returned to the agency, will acknowledge service of the accusation and constitute a notice of defense under Section 11506. The copy of the accusation shall include or be accompanied by (1) a statement that respondent may request a hearing by filing a notice of defense as provided in Section 11506 within 15 days after service upon the respondent of the accusation, and that failure to do so will constitute a waiver of the respondent's right to a hearing, and (2) copies of Sections 11507.5, 11507.6, and 11507.7.
(b) The statement to respondent shall be substantially in the following form:
Unless a written request for a hearing signed by or on behalf of the person named as respondent in the accompanying accusation is delivered or mailed to the agency within 15 days after the accusation was personally served on you or mailed to you, (here insert name of agency) may proceed upon the accusation without a hearing. The request for a hearing may be made by delivering or mailing the enclosed form entitled Notice of Defense, or by delivering or mailing a notice of defense as provided by Section 11506 of the Government Code to: (here insert name and address of agency). You may, but need not, be represented by counsel at any or all stages of these proceedings.
If you desire the names and addresses of witnesses or an opportunity to inspect and copy the items mentioned in Section 11507.6 of the Government Code in the possession, custody or control of the agency, you may contact: (here insert name and address of appropriate person).
The hearing may be postponed for good cause. If you have good cause, you are obliged to notify the agency or, if an administrative law judge has been assigned to the hearing, the Office of Administrative Hearings, within 10 working days after you discover the good cause. Failure to give notice within 10 days will deprive you of a postponement.
(c) The accusation and all accompanying information may be sent to the respondent by any means selected by the agency. But no order adversely affecting the rights of the respondent shall be made by the agency in any case unless the respondent shall have been served personally or by registered mail as provided herein, or shall have filed a notice of defense or otherwise appeared. Service may be proved in the manner authorized in civil actions. Service by registered mail shall be effective if a statute or agency rule requires the respondent to file the respondent's address with the agency and to notify the agency of any change, and if a registered letter containing the accusation and accompanying material is mailed, addressed to the respondent at the latest address on file with the agency.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1968 ch 808 § 2; Stats 1970 ch 828 § 1; Stats 1979 ch 199 § 3; Stats 1995 ch 938 § 28 (SB 523), operative July 1, 1997.
§ 11506. Filing of notice of defense; Contents; Right to hearing on the merits (a) Within 15 days after service of the accusation the respondent may file with the agency a notice of defense in which the respondent may:
(1) Request a hearing.
(2) Object to the accusation upon the ground that it does not state acts or omissions upon which the agency may proceed.
(3) Object to the form of the accusation on the ground that it is so indefinite or uncertain that the respondent cannot identify the transaction or prepare a defense.
(4) Admit the accusation in whole or in part.
(5) Present new matter by way of defense.
(6) Object to the accusation upon the ground that, under the circumstances, compliance with the requirements of a regulation would result in a material violation of another regulation enacted by another department affecting substantive rights.
(b) Within the time specified respondent may file one or more notices of defense upon any or all of these grounds but all of these notices shall be filed within that period unless the agency in its discretion authorizes the filing of a later notice.
(c) The respondent shall be entitled to a hearing on the merits if the respondent files a notice of defense, and the notice shall be deemed a specific denial of all parts of the accusation not expressly admitted. Failure to file a notice of defense shall constitute a waiver of respondent's right to a hearing, but the agency in its discretion may nevertheless grant a hearing. Unless objection is taken as provided in paragraph (3) of subdivision (a), all objections to the form of the accusation shall be deemed waived.
(d) The notice of defense shall be in writing signed by or on behalf of the respondent and shall state the respondent's mailing address. It need not be verified or follow any particular form.
(e) As used in this section, "file," "files," "filed," or "filing" means "delivered or mailed" to the agency as provided in Section 11505.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1963 ch 931 § 1; Stats 1982 ch 606 § 1; Stats 1986 ch 951 § 20; Stats 1995 ch 938 § 29 (SB 523), operative July 1, 1997.
§ 11507. Amended or supplemental accusation; Objections
At any time before the matter is submitted for decision the agency may file or permit the filing of an amended or supplemental accusation. All parties shall be notified thereof. If the amended or supplemental accusation presents new charges the agency shall afford respondent a reasonable opportunity to prepare his defense thereto, but he shall not be entitled to file a further pleading unless the agency in its discretion so orders. Any new charges shall be deemed controverted, and any objections to the amended or supplemental accusation may be made orally and shall be noted in the record.
HISTORY:
Added Stats 1945 ch 867 § 1.
§ 11507.3. Consolidated proceedings; Separate hearings
(a) When proceedings that involve a common question of law or fact are pending, the administrative law judge on the judge's own motion or on motion of a party may order a joint hearing of any or all the matters at issue in the proceedings. The administrative law judge may order all the proceedings consolidated and may make orders concerning the procedure that may tend to avoid unnecessary costs or delay.
(b) The administrative law judge on the judge's own motion or on motion of a party, in furtherance of convenience or to avoid prejudice or when separate hearings will be conducive to expedition and economy, may order a separate hearing of any issue, including an issue raised in the notice of defense, or of any number of issues.
HISTORY:
Added Stats 1995 ch 938 § 30 (SB 523), operative July 1, 1997.
§ 11507.5. Exclusivity of discovery provisionsThe provisions of Section 11507.6 provide the exclusive right to and method of discovery as to any proceeding governed by this chapter.
HISTORY:
Added Stats 1968 ch 808 § 3.
§ 11507.6. Request for DiscoveryAfter initiation of a proceeding in which a respondent or other party is entitled to a hearing on the merits, a party, upon written request made to another party, prior to the hearing and within 30 days after service by the agency of the initial pleading or within 15 days after the service of an additional pleading, is entitled to (1) obtain the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing, and (2) inspect and make a copy of any of the following in the possession or custody or under the control of the other party:
(a) A statement of a person, other than the respondent, named in the initial administrative pleading, or in any additional pleading, when it is claimed that the act or omission of the respondent as to this person is the basis for the administrative proceeding;
(b) A statement pertaining to the subject matter of the proceeding made by any party to another party or person;
(c) Statements of witnesses then proposed to be called by the party and of other persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, not included in (a) or (b) above;
(d) All writings, including, but not limited to, reports of mental, physical and blood examinations and things which the party then proposes to offer in evidence;
(e) Any other writing or thing which is relevant and which would be admissible in evidence;
(f) Investigative reports made by or on behalf of the agency or other party pertaining to the subject matter of the proceeding, to the extent that these reports (1) contain the names and addresses of witnesses or of persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, or (2) reflect matters perceived by the investigator in the course of his or her investigation, or (3) contain or include by attachment any statement or writing described in (a) to (e), inclusive, or summary thereof.
For the purpose of this section, "statements" include written statements by the person signed or otherwise authenticated by him or her, stenographic, mechanical, electrical or other recordings, or transcripts thereof, of oral statements by the person, and written reports or summaries of these oral statements.
Nothing in this section shall authorize the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential or protected as the attorney's work product.
HISTORY:
Added Stats 1968 ch 808 § 4. Amended Stats 1985 ch 1328 § 5; Stats 1995 ch 938 § 31 (SB 523), operative July 1, 1997.
§ 11507.7. Motion to compel discovery; Order
(a) Any party claiming the party's request for discovery pursuant to Section 11507.6 has not been complied with may serve and file with the administrative law judge a motion to compel discovery , naming as respondent the party refusing or failing to comply with Section 11507.6. The motion shall state facts showing the respondent party failed or refused to comply with Section 11507.6, a description of the matters sought to be discovered, the reason or reasons why the matter is discoverable under that section, that a reasonable and good faith attempt to contact the respondent for an informal resolution of the issue has been made, and the ground or grounds of respondent's refusal so far as known to the moving party.
(b) The motion shall be served upon respondent party and filed within 15 days after the respondent party first evidenced failure or refusal to comply with Section 11507.6 or within 30 days after request was made and the party has failed to reply to the request, or within another time provided by stipulation, whichever period is longer.
(c) The hearing on the motion to compel discovery shall be held within 15 days after the motion is made, or a later time that the administrative law judge may on the judge's own motion for good cause determine. The respondent party shall have the right to serve and file a written answer or other response to the motion before or at the time of the hearing.
(d) Where the matter sought to be discovered is under the custody or control of the respondent party and the respondent party asserts that the matter is not a discoverable matter under the provisions of Section 11507.6, or is privileged against disclosure under those provisions, the administrative law judge may order lodged with it matters provided in subdivision (b) of Section 915 of the Evidence Code and examine the matters in accordance with its provisions.
(e) The administrative law judge shall decide the case on the matters examined in camera, the papers filed by the parties, and such oral argument and additional evidence as the administrative law judge may allow.
(f) Unless otherwise stipulated by the parties, the administrative law judge shall no later than 15 days after the hearing make its order denying or granting the motion. The order shall be in writing setting forth the matters the moving party is entitled to discover under Section 11507.6. A copy of the order shall forthwith be served by mail by the administrative law judge upon the parties. Where the order grants the motion in whole or in part, the order shall not become effective until 10 days after the date the order is served . Where the order denies relief to the moving party, the order shall be effective on the date it is served .
HISTORY:
Added Stats 1968 ch 808 § 5. Amended Stats 1971 ch 1303 § 8; Stats 1980 ch 548 § 2; Stats 1995 ch 938 § 32 (SB 523), operative July 1, 1997.
§ 11508. Time and place of hearing(a) The agency shall consult the office, and subject to the availability of its staff, shall determine the time and place of the hearing. The hearing shall be held at a hearing facility maintained by the office in Sacramento, Oakland, Los Angeles, or San Diego and shall be held at the facility that is closest to the location where the transaction occurred or the respondent resides.
(b) Notwithstanding subdivision (a), the hearing may be held at either of the following places:
(1) A place selected by the agency that is closer to the location where the transaction occurred or the respondent resides.
(2) A place within the state selected by agreement of the parties.
(c) The respondent may move for, and the administrative law judge has discretion to grant or deny, a change in the place of the hearing. A motion for a change in the place of the hearing shall be made within 10 days after service of the notice of hearing on the respondent.
Unless good cause is identified in writing by the administrative law judge, hearings shall be held in a facility maintained by the office.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1963 ch 710 § 1; Stats 1967 ch 17 § 39; Stats 1987 ch 50 § 1; Stats 1995 ch 938 § 33 (SB 523), operative July 1, 1997; Stats 2005 ch 674 § 22 (SB 231), effective January 1, 2006.
§ 11509. Notice of hearing
The agency shall deliver or mail a notice of hearing to all parties at least 10 days prior to the hearing. The hearing shall not be prior to the expiration of the time within which the respondent is entitled to file a notice of defense.
The notice to respondent shall be substantially in the following form but may include other information:
You are hereby notified that a hearing will be held before (here insert name of agency) at (here insert place of hearing) on the -------- day of --------, 19----, at the hour of --------, upon the charges made in the accusation served upon you. If you object to the place of hearing, you must notify the presiding officer within 10 days after this notice is served on you. Failure to notify the presiding officer within 10 days will deprive you of a change in the place of the hearing. You may be present at the hearing. You have the right to be represented by an attorney at your own expense. You are not entitled to the appointment of an attorney to represent you at public expense. You are entitled to represent yourself without legal counsel. You may present any relevant evidence, and will be given full opportunity to cross-examine all witnesses testifying against you. You are entitled to the issuance of subpoenas to compel the attendance of witnesses and the production of books, documents or other things by applying to (here insert appropriate office of agency).
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1988 ch 362 § 2; Stats 1995 ch 938 § 34 (SB 523), operative July 1, 1997.
§ 11511. DepositionsOn verified petition of any party, an administrative law judge or, if an administrative law judge has not been appointed, an agency may order that the testimony of any material witness residing within or without the state be taken by deposition in the manner prescribed by law for depositions in civil actions under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure. The petition shall set forth the nature of the pending proceeding; the name and address of the witness whose testimony is desired; a showing of the materiality of the testimony; a showing that the witness will be unable or cannot be compelled to attend; and shall request an order requiring the witness to appear and testify before an officer named in the petition for that purpose. The petitioner shall serve notice of hearing and a copy of the petition on the other parties at least 10 days before the hearing. Where the witness resides outside the state and where the administrative law judge or agency has ordered the taking of the testimony by deposition, the agency shall obtain an order of court to that effect by filing a petition therefor in the superior court in Sacramento County. The proceedings thereon shall be in accordance with the provisions of Section 11189.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1995 ch 938 § 36 (SB 523), operative July 1, 1997; Stats 1998 ch 931 § 182 (SB 2139), effective September 28, 1998; Stats 2004 ch 182 § 42 (AB 3081), operative July 1, 2005.
§ 11511.5. Prehearing conference; Conduct by telephone or other electronic means; Conversion to ADR or informal hearing; Prehearing order
(a) On motion of a party or by order of an administrative law judge, the administrative law judge may conduct a prehearing conference. The administrative law judge shall set the time and place for the prehearing conference, and shall give reasonable written notice to all parties.
(b) The prehearing conference may deal with one or more of the following matters:
(1) Exploration of settlement possibilities.
(2) Preparation of stipulations.
(3) Clarification of issues.
(4) Rulings on identity and limitation of the number of witnesses.
(5) Objections to proffers of evidence.
(6) Order of presentation of evidence and cross-examination.
(7) Rulings regarding issuance of subpoenas and protective orders.
(8) Schedules for the submission of written briefs and schedules for the commencement and conduct of the hearing.
(9) Exchange of witness lists and of exhibits or documents to be offered in evidence at the hearing.
(10) Motions for intervention.
(11) Exploration of the possibility of using alternative dispute resolution provided in Article 5 (commencing with Section 11420.10) of, or the informal hearing procedure provided in Article 10 (commencing with Section 11445.10) of, Chapter 4.5, and objections to use of the informal hearing procedure. Use of alternative dispute resolution or of the informal hearing procedure is subject to subdivision (d).
(12) Any other matters as shall promote the orderly and prompt conduct of the hearing.
(c) The administrative law judge may conduct all or part of the prehearing conference by telephone, television, or other electronic means if each participant in the conference has an opportunity to participate in and to hear the entire proceeding while it is taking place.
(d) With the consent of the parties, the prehearing conference may be converted immediately into alternative dispute resolution or an informal hearing. With the consent of the parties, the proceeding may be converted into alternative dispute resolution to be conducted at another time. With the consent of the agency, the proceeding may be converted into an informal hearing to be conducted at another time subject to the right of a party to object to use of the informal hearing procedure as provided in Section 11445.30.
(e) The administrative law judge shall issue a prehearing order incorporating the matters determined at the prehearing conference. The administrative law judge may direct one or more of the parties to prepare a prehearing order.
HISTORY:
Added Stats 1986 ch 899 § 1. Amended Stats 1995 ch 938 § 37 (SB 523), operative July 1, 1997.
§ 11511.7. Settlement conference
(a) The administrative law judge may order the parties to attend and participate in a settlement conference. The administrative law judge shall set the time and place for the settlement conference, and shall give reasonable written notice to all parties.
(b) The administrative law judge at the settlement conference shall not preside as administrative law judge at the hearing unless otherwise stipulated by the parties. The administrative law judge may conduct all or part of the settlement conference by telephone, television, or other electronic means if each participant in the conference has an opportunity to participate in and to hear the entire proceeding while it is taking place.
HISTORY:
Added Stats 1995 ch 938 § 38 (SB 523), operative July 1, 1997.
§ 11512. Administrative law judge to preside over hearing; Disqualification; Reporting of Proceedings
(a) Every hearing in a contested case shall be presided over by an administrative law judge. The agency itself shall determine whether the administrative law judge is to hear the case alone or whether the agency itself is to hear the case with the administrative law judge.
(b) When the agency itself hears the case, the administrative law judge shall preside at the hearing, rule on the admission and exclusion of evidence, and advise the agency on matters of law; the agency itself shall exercise all other powers relating to the conduct of the hearing but may delegate any or all of them to the administrative law judge. When the administrative law judge alone hears a case, he or she shall exercise all powers relating to the conduct of the hearing. A ruling of the administrative law judge admitting or excluding evidence is subject to review in the same manner and to the same extent as the administrative law judge's proposed decision in the proceeding.
(c) An administrative law judge or agency member shall voluntarily disqualify himself or herself and withdraw from any case in which there are grounds for disqualification, including disqualification under Section 11425.40. The parties may waive the disqualification by a writing that recites the grounds for disqualification. A waiver is effective only when signed by all parties, accepted by the administrative law judge or agency member, and included in the record. Any party may request the disqualification of any administrative law judge or agency member by filing an affidavit, prior to the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that the administrative law judge or agency member is disqualified. Where the request concerns an agency member, the issue shall be determined by the other members of the agency. Where the request concerns the administrative law judge, the issue shall be determined by the agency itself if the agency itself hears the case with the administrative law judge, otherwise the issue shall be determined by the administrative law judge. No agency member shall withdraw voluntarily or be subject to disqualification if his or her disqualification would prevent the existence of a quorum qualified to act in the particular case, except that a substitute qualified to act may be appointed by the appointing authority.
(d) The proceedings at the hearing shall be reported by a stenographic reporter. However, upon the consent of all the parties, the proceedings may be reported electronically.
(e) Whenever, after the agency itself has commenced to hear the case with an administrative law judge presiding, a quorum no longer exists, the administrative law judge who is presiding shall complete the hearing as if sitting alone and shall render a proposed decision in accordance with subdivision (b) of Section 11517 .
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1973 ch 231 § 1; Stats 1983 ch 635 § 1; Stats 1985 ch 324 § 19; Stats 1995 ch 938 § 39 (SB 523), operative July 1, 1997.
§ 11513. Evidence (a) Oral evidence shall be taken only on oath or affirmation.
(b) Each party shall have these rights: to call and examine witnesses, to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him or her to testify; and to rebut the evidence against him or her. If respondent does not testify in his or her own behalf he or she may be called and examined as if under cross-examination.
(c) The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.
(d) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. An objection is timely if made before submission of the case or on reconsideration.
(e) The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing .
(f) The presiding officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.
HISTORY:
Added Stats 1992 ch 1302 § 9 (AB 3107), effective September 30, 1992, operative July 1, 1995. Amended Stats 1995 ch 938 § 40 (SB 523), operative July 1, 1997.
§ 11514. Affidavits
(a) At any time 10 or more days prior to a hearing or a continued hearing, any party may mail or deliver to the opposing party a copy of any affidavit which he proposes to introduce in evidence, together with a notice as provided in subdivision (b). Unless the opposing party, within seven days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine an affiant, his right to cross-examine such affiant is waived and the affidavit, if introduced in evidence, shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not afforded after request therefor is made as herein provided, the affidavit may be introduced in evidence, but shall be given only the same effect as other hearsay evidence.
(b) The notice referred to in subdivision (a) shall be substantially in the following form:
The accompanying affidavit of (here insert name of affiant) will be introduced as evidence at the hearing in (here insert title of proceeding). (Here insert name of affiant) will not be called to testify orally and you will not be entitled to question him unless you notify (here insert name of proponent or his attorney) at (here insert address) that you wish to cross-examine him. To be effective your request must be mailed or delivered to (here insert name of proponent or his attorney) on or before (here insert a date seven days after the date of mailing or delivering the affidavit to the opposing party).
HISTORY:
Added Stats 1947 ch 491 § 6.
§ 11515. Official Notice
In reaching a decision official notice may be taken, either before or after submission of the case for decision, of any generally accepted technical or scientific matter within the agency's special field, and of any fact which may be judicially noticed by the courts of this State. Parties present at the hearing shall be informed of the matters to be noticed, and those matters shall be noted in the record, referred to therein, or appended thereto. Any such party shall be given a reasonable opportunity on request to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to be determined by the agency.
HISTORY:
Added Stats 1945 ch 867 § 1.
§ 11516. Amendment of accusation after submission
The agency may order amendment of the accusation after submission of the case for decision. Each party shall be given notice of the intended amendment and opportunity to show that he will be prejudiced thereby unless the case is reopened to permit the introduction of additional evidence in his behalf. If such prejudice is shown the agency shall reopen the case to permit the introduction of additional evidence.
HISTORY:
Added Stats 1945 ch 867 § 1.
§ 11517. Contested cases
(a) A contested case may be originally heard by the agency itself and subdivision (b) shall apply. Alternatively, at the discretion of the agency, an administrative law judge may originally hear the case alone and subdivision (c) shall apply.
(b) If a contested case is originally heard before an agency itself, all of the following provisions apply:
(1) An administrative law judge shall be present during the consideration of the case and, if requested, shall assist and advise the agency in the conduct of the hearing.
(2) No member of the agency who did not hear the evidence shall vote on the decision.
(3) The agency shall issue its decision within 100 days of submission of the case.
(c)(1) If a contested case is originally heard by an administrative law judge alone, he or she shall prepare within 30 days after the case is submitted to him or her a proposed decision in a form that may be adopted by the agency as the final decision in the case. Failure of the administrative law judge to deliver a proposed decision within the time required does not prejudice the rights of the agency in the case. Thirty days after the receipt by the agency of the proposed decision, a copy of the proposed decision shall be filed by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney. The filing and service is not an adoption of a proposed decision by the agency.
(2) Within 100 days of receipt by the agency of the administrative law judge's proposed decision, the agency may act as prescribed in subparagraphs (A) to (E), inclusive. If the agency fails to act as prescribed in subparagraphs (A) to (E), inclusive, within 100 days of receipt of the proposed decision, the proposed decision shall be deemed adopted by the agency. The agency may do any of the following:
(A) Adopt the proposed decision in its entirety.
(B) Reduce or otherwise mitigate the proposed penalty and adopt the balance of the proposed decision.
(C) Make technical or other minor changes in the proposed decision and adopt it as the decision. Action by the agency under this paragraph is limited to a clarifying change or a change of a similar nature that does not affect the factual or legal basis of the proposed decision.
(D) Reject the proposed decision and refer the case to the same administrative law judge if reasonably available, otherwise to another administrative law judge, to take additional evidence. If the case is referred to an administrative law judge pursuant to this subparagraph, he or she shall prepare a revised proposed decision, as provided in paragraph (1), based upon the additional evidence and the transcript and other papers that are part of the record of the prior hearing. A copy of the revised proposed decision shall be furnished to each party and his or her attorney as prescribed in this subdivision.
(E) Reject the proposed decision, and decide the case upon the record, including the transcript, or upon an agreed statement of the parties, with or without taking additional evidence. By stipulation of the parties, the agency may decide the case upon the record without including the transcript. If the agency acts pursuant to this subparagraph, all of the following provisions apply:
(i) A copy of the record shall be made available to the parties. The agency may require payment of fees covering direct costs of making the copy.
(ii) The agency itself shall not decide any case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself. If additional oral evidence is introduced before the agency itself, no agency member may vote unless the member heard the additional oral evidence.
(iii) The authority of the agency itself to decide the case under this subdivision includes authority to decide some but not all issues in the case.
(iv) If the agency elects to proceed under this subparagraph, the agency shall issue its final decision not later than 100 days after rejection of the proposed decision. If the agency elects to proceed under this subparagraph, and has ordered a transcript of the proceedings before the administrative law judge, the agency shall issue its final decision not later than 100 days after receipt of the transcript. If the agency finds that a further delay is required by special circumstance, it shall issue an order delaying the decision for no more than 30 days and specifying the reasons therefor. The order shall be subject to judicial review pursuant to Section 11523.
(d) The decision of the agency shall be filed immediately by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney.
HISTORY:
Added Stats 1999 ch 339 § 2 (AB 1692).
§ 11518. Copies of decision to parties
Copies of the decision shall be delivered to the parties personally or sent to them by registered mail.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1947 ch 491 § 7; Stats 1995 ch 938 § 43 (SB 523), operative July 1, 1997.
§ 11518.5. Application to correct mistake or error in decision; Modification; Service after correction
(a) Within 15 days after service of a copy of the decision on a party, but not later than the effective date of the decision, the party may apply to the agency for correction of a mistake or clerical error in the decision, stating the specific ground on which the application is made. Notice of the application shall be given to the other parties to the proceeding. The application is not a prerequisite for seeking judicial review.
(b) The agency may refer the application to the administrative law judge who formulated the proposed decision or may delegate its authority under this section to one or more persons.
(c) The agency may deny the application, grant the application and modify the decision, or grant the application and set the matter for further proceedings. The application is considered denied if the agency does not dispose of it within 15 days after it is made or a longer time that the agency provides by regulation.
(d) Nothing in this section precludes the agency, on its own motion or on motion of the administrative law judge, from modifying the decision to correct a mistake or clerical error. A modification under this subdivision shall be made within 15 days after issuance of the decision.
(e) The agency shall, within 15 days after correction of a mistake or clerical error in the decision, serve a copy of the correction on each party on which a copy of the decision was previously served.
HISTORY:
Added Stats 1995 ch 938 § 44 (SB 523), operative July 1, 1997
§ 11519. Effective date of decision; Stay of execution; Notification of suspension or revocation; Restitution; Actual knowledge as condition of enforcement
(a) The decision shall become effective 30 days after it is delivered or mailed to respondent unless: a reconsideration is ordered within that time, or the agency itself orders that the decision shall become effective sooner, or a stay of execution is granted.
(b) A stay of execution may be included in the decision or if not included therein may be granted by the agency at any time before the decision becomes effective. The stay of execution provided herein may be accompanied by an express condition that respondent comply with specified terms of probation; provided, however, that the terms of probation shall be just and reasonable in the light of the findings and decision.
(c) If respondent was required to register with any public officer, a notification of any suspension or revocation shall be sent to the officer after the decision has become effective.
(d) As used in subdivision (b), specified terms of probation may include an order of restitution . Where restitution is ordered and paid pursuant to the provisions of this subdivision, the amount paid shall be credited to any subsequent judgment in a civil action .
(e) The person to which the agency action is directed may not be required to comply with a decision unless the person has been served with the decision in the manner provided in Section 11505 or has actual knowledge of the decision.
(f) A nonparty may not be required to comply with a decision unless the agency has made the decision available for public inspection and copying or the nonparty has actual knowledge of the decision.
(g) This section does not preclude an agency from taking immediate action to protect the public interest in accordance with Article 13 (commencing with Section 11460.10) of Chapter 4.5.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1949 ch 314 § 2; Stats 1976 ch 476 § 1; Stats 1977 ch 680 § 1; Stats 1995 ch 938 § 45 (SB 523), operative July 1, 1997.
§ 11520. Defaults and uncontested cases
(a) If the respondent either fails to file a notice of defense or to appear at the hearing, the agency may take action based upon the respondent's express admissions or upon other evidence and affidavits may be used as evidence without any notice to respondent; and where the burden of proof is on the respondent to establish that the respondent is entitled to the agency action sought, the agency may act without taking evidence.
(b) Notwithstanding the default of the respondent, the agency or the administrative law judge, before a proposed decision is issued, has discretion to grant a hearing on reasonable notice to the parties. If the agency and administrative law judge make conflicting orders under this subdivision, the agency's order takes precedence. The administrative law judge may order the respondent, or the respondent's attorney or other authorized representative, or both, to pay reasonable expenses, including attorney's fees, incurred by another party as a result of the respondent's failure to appear at the hearing.
(c) Within seven days after service on the respondent of a decision based on the respondent's default, the respondent may serve a written motion requesting that the decision be vacated and stating the grounds relied on. The agency in its discretion may vacate the decision and grant a hearing on a showing of good cause. As used in this subdivision, good cause includes, but is not limited to, any of the following:
(1) Failure of the person to receive notice served pursuant to Section 11505.
(2) Mistake, inadvertence, surprise, or excusable neglect.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1947 ch 491 § 8; Stats 1963 ch 931 § 2; Stats 1995 ch 938 § 46 (SB 523), operative July 1, 1997.
§ 11521. Reconsideration
(a) The agency itself may order a reconsideration of all or part of the case on its own motion or on petition of any party. The agency shall notify a petitioner of the time limits for petitioning for reconsideration. The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration. If additional time is needed to evaluate a petition for reconsideration filed prior to the expiration of any of the applicable periods, an agency may grant a stay of that expiration for no more than 10 days, solely for the purpose of considering the petition. If no action is taken on a petition within the time allowed for ordering reconsideration, the petition shall be deemed denied.
(b) The case may be reconsidered by the agency itself on all the pertinent parts of the record and such additional evidence and argument as may be permitted, or may be assigned to an administrative law judge. A reconsideration assigned to an administrative law judge shall be subject to the procedure provided in Section 11517. If oral evidence is introduced before the agency itself, no agency member may vote unless he or she heard the evidence.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1953 ch 964 § 1; Stats 1985 ch 324 § 22; Stats 1987 ch 305 § 1. Amended Stats 2004 ch 865 § 34 (SB 1914).
§ 11522. Reinstatement of license or reduction of penalty
A person whose license has been revoked or suspended may petition the agency for reinstatement or reduction of penalty after a period of not less than one year has elapsed from the effective date of the decision or from the date of the denial of a similar petition. The agency shall give notice to the Attorney General of the filing of the petition and the Attorney General and the petitioner shall be afforded an opportunity to present either oral or written argument before the agency itself. The agency itself shall decide the petition, and the decision shall include the reasons therefor, and any terms and conditions that the agency reasonably deems appropriate to impose as a condition of reinstatement. This section shall not apply if the statutes dealing with the particular agency contain different provisions for reinstatement or reduction of penalty.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1985 ch 587 § 4.
§ 11523. Judicial review
Judicial review may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure, subject, however, to the statutes relating to the particular agency. Except as otherwise provided in this section, the petition shall be filed within 30 days after the last day on which reconsideration can be ordered. The right to petition shall not be affected by the failure to seek reconsideration before the agency. On request of the petitioner for a record of the proceedings, the complete record of the proceedings, or the parts thereof as are designated by the petitioner in the request, shall be prepared by the Office of Administrative Hearings or the agency and shall be delivered to the petitioner, within 30 days after the request, which time shall be extended for good cause shown, upon the payment of the cost for the preparation of the transcript, the cost for preparation of other portions of the record and for certification thereof. The complete record includes the pleadings, all notices and orders issued by the agency, any proposed decision by an administrative law judge, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence and any other papers in the case. If the petitioner, within 10 days after the last day on which reconsideration can be ordered, requests the agency to prepare all or any part of the record, the time within which a petition may be filed shall be extended until 30 days after its delivery to him or her. The agency may file with the court the original of any document in the record in lieu of a copy thereof. If the petitioner prevails in overturning the administrative decision following judicial review, the agency shall reimburse the petitioner for all costs of transcript preparation, compilation of the record, and certification.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1947 ch 491 § 9; Stats 1953 ch 962 § 1; Stats 1955 ch 246 § 1; Stats 1965 ch 1458 § 10; Stats 1971 ch 984 § 1; Stats 1985 ch 324 § 23, Stats 1985 ch 973 § 1; Stats 1986 ch 597 § 3; Stats 1994 ch 1206 § 29 (SB 1775); Stats 1995 ch 938 § 47 (SB 523), operative July 1, 1997; Stats 2005 ch 674 § 23 (SB 231), effective January 1, 2006.
§ 11524. Continuances; Requirement of good cause; Judicial review of denial
(a) The agency may grant continuances. When an administrative law judge of the Office of Administrative Hearings has been assigned to the hearing, no continuance may be granted except by him or her or by the presiding judge of the appropriate regional office of the Office of Administrative Hearings, for good cause shown.
(b) When seeking a continuance, a party shall apply for the continuance within 10 working days following the time the party discovered or reasonably should have discovered the event or occurrence which establishes the good cause for the continuance. A continuance may be granted for good cause after the 10 working days have lapsed if the party seeking the continuance is not responsible for and has made a good faith effort to prevent the condition or event establishing the good cause.
(c) In the event that an application for a continuance by a party is denied by an administrative law judge of the Office of Administrative Hearings, and the party seeks judicial review thereof, the party shall, within 10 working days of the denial, make application for appropriate judicial relief in the superior court or be barred from judicial review thereof as a matter of jurisdiction. A party applying for judicial relief from the denial shall give notice to the agency and other parties. Notwithstanding Section 1010 of the Code of Civil Procedure, the notice may be either oral at the time of the denial of application for a continuance or written at the same time application is made in court for judicial relief. This subdivision does not apply to the Department of Alcoholic Beverage Control.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1953 ch 962 § 2; Stats 1963 ch 842 § 1; Stats 1971 ch 1303 § 9; Stats 1979 ch 199 § 5; Stats 1985 ch 324 § 24; Stats 1995 ch 938 § 48 (SB 523), operative July 1, 1997.
§ 11526. Voting by mailThe members of an agency qualified to vote on any question may vote by mail or another appropriate method.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1995 ch 938 § 50 (SB 523), operative July 1, 1997.
§ 11527. Charge against funds of agencyAny sums authorized to be expended under this chapter by any agency shall be a legal charge against the funds of the agency.
HISTORY:
Added Stats 1945 ch 867 § 1.
§ 11528. OathsIn any proceedings under this chapter any agency, agency member, secretary of an agency, hearing reporter, or administrative law judge has power to administer oaths and affirmations and to certify to official acts.
HISTORY:
Added Stats 1945 ch 867 § 1. Amended Stats 1969 ch 191 § 1; Stats 1985 ch 324 § 25.
§ 11529. Interim orders
(a) The administrative law judge of the Medical Quality Hearing Panel established pursuant to Section 11371 may issue an interim order suspending a license, or imposing drug testing, continuing education, supervision of procedures, or other license restrictions. Interim orders may be issued only if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act or the appropriate practice act governing each allied health profession, or is unable to practice safely due to a mental or physical condition, and that permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare.
(b) All orders authorized by this section shall be issued only after a hearing conducted pursuant to subdivision (d), unless it appears from the facts shown by affidavit that serious injury would result to the public before the matter can be heard on notice. Except as provided in subdivision (c), the licensee shall receive at least 15 days' prior notice of the hearing, which notice shall include affidavits and all other information in support of the order.
(c) If an interim order is issued without notice, the administrative law judge who issued the order without notice shall cause the licensee to be notified of the order, including affidavits and all other information in support of the order by a 24-hour delivery service. That notice shall also include the date of the hearing on the order, which shall be conducted in accordance with the requirement of subdivision (d), not later than 20 days from the date of issuance. The order shall be dissolved unless the requirements of subdivision (a) are satisfied.
(d) For the purposes of the hearing conducted pursuant to this section, the licentiate shall, at a minimum, have the following rights:
(1) To be represented by counsel.
(2) To have a record made of the proceedings, copies of which may be obtained by the licentiate upon payment of any reasonable charges associated with the record.
(3) To present written evidence in the form of relevant declarations, affidavits, and documents.
The discretion of the administrative law judge to permit testimony at the hearing conducted pursuant to this section shall be identical to the discretion of a superior court judge to permit testimony at a hearing conducted pursuant to Section 527 of the Code of Civil Procedure.
(4) To present oral argument.
(e) Consistent with the burden and standards of proof applicable to a preliminary injunction entered under Section 527 of the Code of Civil Procedure, the administrative law judge shall grant the interim order where, in the exercise of discretion, the administrative law judge concludes that:
(1) There is a reasonable probability that the petitioner will prevail in the underlying action.
(2) The likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order.
(f) In all cases where an interim order is issued, and an accusation is not filed and served pursuant to Sections 11503 and 11505 within 15 days of the date in which the parties to the hearing on the interim order have submitted the matter, the order shall be dissolved.
Upon service of the accusation the licensee shall have, in addition to the rights granted by this section, all of the rights and privileges available as specified in this chapter. If the licensee requests a hearing on the accusation, the board shall provide the licensee with a hearing within 30 days of the request, unless the licensee stipulates to a later hearing, and a decision within 15 days of the date the decision is received from the administrative law judge, or the board shall nullify the interim order previously issued, unless good cause can be shown by the Division of Medical Quality for a delay.
(g) Where an interim order is issued, a written decision shall be prepared within 15 days of the hearing, by the administrative law judge, including findings of fact and a conclusion articulating the connection between the evidence produced at the hearing and the decision reached.
(h) Notwithstanding the fact that interim orders issued pursuant to this section are not issued after a hearing as otherwise required by this chapter, interim orders so issued shall be subject to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure. The relief which may be ordered shall be limited to a stay of the interim order. Interim orders issued pursuant to this section are final interim orders and, if not dissolved pursuant to subdivision (c) or (f), may only be challenged administratively at the hearing on the accusation.
(i) The interim order provided for by this section shall be:
(1) In addition to, and not a limitation on, the authority to seek injunctive relief provided for in the Business and Professions Code.
(2) A limitation on the emergency decision procedure provided in Article 13 (commencing with Section 11460.10) of Chapter 4.5.
HISTORY:
Added Stats 1990 ch 1597 § 35 (SB 2375). Amended Stats 1993 ch 1267 § 54 (SB 916); Stats 1995 ch 938 § 51 (SB 523), operative July 1, 1997.
Amended Stats 1998 ch 878 § 57 (SB 2239).
APPENDIX
Business and Professions Code
§ 125.3. Direction to licentiate violating licensing act to pay costs of investigation and enforcement(a) Except as otherwise provided by law, in any order issued in resolution of a disciplinary proceeding before any board within the department or before the Osteopathic Medical Board, upon request of the entity bringing the proceeding, the administrative law judge may direct a licentiate found to have committed a violation or violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case.
(b) In the case of a disciplined licentiate that is a corporation or a partnership, the order may be made against the licensed corporate entity or licensed partnership.
(c) A certified copy of the actual costs, or a good faith estimate of costs where actual costs are not available, signed by the entity bringing the proceeding or its designated representative shall be prima facie evidence of reasonable costs of investigation and prosecution of the case. The costs shall include the amount of investigative and enforcement costs up to the date of the hearing, including, but not limited to, charges imposed by the Attorney General.
(d) The administrative law judge shall make a proposed finding of the amount of reasonable costs of investigation and prosecution of the case when requested pursuant to subdivision (a). The finding of the administrative law judge with regard to costs shall not be reviewable by the board to increase the cost award. The board may reduce or eliminate the cost award, or remand to the administrative law judge if the proposed decision fails to make a finding on costs requested pursuant to subdivision (a).
(e) If an order for recovery of costs is made and timely payment is not made as directed in the board's decision, the board may enforce the order for repayment in any appropriate court. This right of enforcement shall be in addition to any other rights the board may have as to any licentiate to pay costs.
(f) In any action for recovery of costs, proof of the board's decision shall be conclusive proof of the validity of the order of payment and the terms for payment.
(g)
(1) Except as provided in paragraph (2), the board shall not renew or reinstate the license of any licentiate who has failed to pay all of the costs ordered under this section.
(2) Notwithstanding paragraph (1), the board may, in its discretion, conditionally renew or reinstate for a maximum of one year the license of any licentiate who demonstrates financial hardship and who enters into a formal agreement with the board to reimburse the board within that one-year period for the unpaid costs.
(h) All costs recovered under this section shall be considered a reimbursement for costs incurred and shall be deposited in the fund of the board recovering the costs to be available upon appropriation by the Legislature.
(i) Nothing in this section shall preclude a board from including the recovery of the costs of investigation and enforcement of a case in any stipulated settlement.
(j) This section does not apply to any board if a specific statutory provision in that board's licensing act provides for recovery of costs in an administrative disciplinary proceeding.
(k) Notwithstanding the provisions of this section, the Medical Board of California shall not request nor obtain from a physician and surgeon, investigation and prosecution costs for a disciplinary proceeding against the licentiate. The board shall ensure that this subdivision is revenue neutral with regard to it and that any loss of revenue or increase in costs resulting from this subdivision is offset by an increase in the amount of the initial license fee and the biennial renewal fee, as provided in subdivision (e) of Section 2435.
HISTORY:
Added Stats 1992 ch 1059 § 1 (AB 3745), ch 1289 § 1 (AB 2743). Amended Stats 2001 ch 728 § 1 (SB 724); Stats 2005 ch 674 § 2 (SB 231), effective January 1, 2006; Stats 2006 ch 223 § 2 (SB 1438), effective January 1, 2007.
§ 162. Evidentiary Effect of Certificate of Records Officer as to license, etc.
The certificate of the officer in charge of the records of any board in the department that any person was or was not on a specified date, or during a specified period of time, licensed, certified or registered under the provisions of law administered by the board, or that the license, certificate or registration of any person was revoked or under suspension, shall be admitted in any court as prima facie evidence of the facts therein recited.
HISTORY:
Added Stats 1949 ch 355 § 1.
§ 494. Interim Suspension or Restriction Order
(a) A board or an administrative law judge sitting alone, as provided in subdivision (h), may, upon petition, issue an interim order suspending any licentiate or imposing license restrictions, including, but not limited to, mandatory biological fluid testing, supervision, or remedial training. The petition shall include affidavits that demonstrate, to the satisfaction of the board, both of the following:
(1) The licentiate has engaged in acts or omissions constituting a violation of this code or has been convicted of a crime substantially related to the licensed activity.
(2) Permitting the licentiate to continue to engage in the licensed activity, or permitting the licentiate to continue in the licensed activity without restrictions, would endanger the public health, safety, or welfare.
(b) No interim order provided for in this section shall be issued without notice to the licentiate unless it appears from the petition and supporting documents that serious injury would result to the public before the matter could be heard on notice.
(c) Except as provided in subdivision (b), the licentiate shall be given at least 15 days' notice of the hearing on the petition for an interim order. The notice shall include documents submitted to the board in support of the petition. If the order was initially issued without notice as provided in subdivision (b), the licentiate shall be entitled to a hearing on the petition within 20 days of the issuance of the interim order without notice. The licentiate shall be given notice of the hearing within two days after issuance of the initial interim order, and shall receive all documents in support of the petition. The failure of the board to provide a hearing within 20 days following the issuance of the interim order without notice, unless the licentiate waives his or her right to the hearing, shall result in the dissolution of the interim order by operation of law.
(d) At the hearing on the petition for an interim order, the licentiate may:
(1) Be represented by counsel.
(2) Have a record made of the proceedings, copies of which shall be available to the licentiate upon payment of costs computed in accordance with the provisions for transcript costs for judicial review contained in Section 11523 of the Government Code.
(3) Present affidavits and other documentary evidence.
(4) Present oral argument.
(e) The board, or an administrative law judge sitting alone as provided in subdivision (h), shall issue a decision on the petition for interim order within five business days following submission of the matter. The standard of proof required to obtain an interim order pursuant to this section shall be a preponderance of the evidence standard. If the interim order was previously issued without notice, the board shall determine whether the order shall remain in effect, be dissolved, or modified.
(f) The board shall file an accusation within 15 days of the issuance of an interim order. In the case of an interim order issued without notice, the time shall run from the date of the order issued after the noticed hearing. If the licentiate files a Notice of Defense, the hearing shall be held within 30 days of the agency's receipt of the Notice of Defense. A decision shall be rendered on the accusation no later than 30 days after submission of the matter. Failure to comply with any of the requirements in this subdivision shall dissolve the interim order by operation of law.
(g) Interim orders shall be subject to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure and shall be heard only in the superior court in and for the Counties of Sacramento, San Francisco, Los Angeles, or San Diego. The review of an interim order shall be limited to a determination of whether the board abused its discretion in the issuance of the interim order. Abuse of discretion is established if the respondent board has not proceeded in the manner required by law, or if the court determines that the interim order is not supported by substantial evidence in light of the whole record.
(h) The board may, in its sole discretion, delegate the hearing on any petition for an interim order to an administrative law judge in the Office of Administrative Hearings. If the board hears the noticed petition itself, an administrative law judge shall preside at the hearing, rule on the admission and exclusion of evidence, and advise the board on matters of law. The board shall exercise all other powers relating to the conduct of the hearing but may delegate any or all of them to the administrative law judge. When the petition has been delegated to an administrative law judge, he or she shall sit alone and exercise all of the powers of the board relating to the conduct of the hearing. A decision issued by an administrative law judge sitting alone shall be final when it is filed with the board. If the administrative law judge issues an interim order without notice, he or she shall preside at the noticed hearing, unless unavailable, in which case another administrative law judge may hear the matter. The decision of the administrative law judge sitting alone on the petition for an interim order is final, subject only to judicial review in accordance with subdivision (g).
(i) Failure to comply with an interim order issued pursuant to subdivision (a) or (b) shall constitute a separate cause for disciplinary action against any licentiate, and may be heard at, and as a part of, the noticed hearing provided for in subdivision (f). Allegations of noncompliance with the interim order may be filed at any time prior to the rendering of a decision on the accusation. Violation of the interim order is established upon proof that the licentiate was on notice of the interim order and its terms, and that the order was in effect at the time of the violation. The finding of a violation of an interim order made at the hearing on the accusation shall be reviewed as a part of any review of a final decision of the agency.
If the interim order issued by the agency provides for anything less than a complete suspension of the licentiate from his or her business or profession, and the licentiate violates the interim order prior to the hearing on the accusation provided for in subdivision (f), the agency may, upon notice to the licentiate and proof of violation, modify or expand the interim order.
(j) A plea or verdict of guilty or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this section. A certified record of the conviction shall be conclusive evidence of the fact that the conviction occurred. A board may take action under this section notwithstanding the fact that an appeal of the conviction may be taken.
(k) The interim orders provided for by this section shall be in addition to, and not a limitation on, the authority to seek injunctive relief provided in any other provision of law.
(l) In the case of a board, a petition for an interim order may be filed by the executive officer. In the case of a bureau or program, a petition may be filed by the chief or program administrator, as the case may be.
(m) "Board," as used in this section, shall include any agency described in Section 22, and any allied health agency within the jurisdiction of the Medical Board of California. Board shall also include the Osteopathic Medical Board of California and the State Board of Chiropractic Examiners. The provisions of this section shall not be applicable to the Medical Board of California, the Board of Podiatric Medicine, or the State Athletic Commission.
HISTORY:
Added Stats 1993 ch 840 § 1 (SB 842). Amended Stats 1994 ch 1275 § 4 (SB 2101).
Code of Civil Procedure
§ 1985. Subpoena; Issuance; Affidavit
(a) The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring the person's attendance at a particular time and place to testify as a witness. It may also require a witness to bring any books, documents, or other things under the witness's control which the witness is bound by law to produce in evidence. When a county recorder is using the microfilm system for recording, and a witness is subpoenaed to present a record, the witness shall be deemed to have complied with the subpoena if the witness produces a certified copy thereof.
(b) A copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.
(c) The clerk, or a judge, shall issue a subpoena or subpoena duces tecum signed and sealed but otherwise in blank to a party requesting it, who shall fill it in before service. An attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena to require attendance before the court in which the action or proceeding is pending or at the trial of an issue therein, or upon the taking of a deposition in an action or proceeding pending therein; the subpoena in such a case need not be sealed. An attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena duces tecum to require production of the matters or things described in the subpoena.
HISTORY:
Enacted 1872. Amended Stats 1933 ch 567 § 1; Stats 1961 ch 496 § 1; Stats 1967 ch 431 § 1; Stats 1968 ch 95 § 1. Amended Stats 1979 ch 458 § 1; Stats 1982 ch 452 § 1; Stats 1986 ch 603 § 3; Stats 1990 ch 511 § 1 (SB 163).
§ 1985.1. Agreement to Appear at Time not Specified in Subpoena
Any person who is subpoenaed to appear at a session of court, or at the trial of an issue therein, may, in lieu of appearance at the time specified in the subpoena, agree with the party at whose request the subpoena was issued to appear at another time or upon such notice as may be agreed upon. Any failure to appear pursuant to such agreement may be punished as a contempt by the court issuing the subpoena. The facts establishing or disproving such agreement and the failure to appear may be proved by an affidavit of any person having personal knowledge of the facts.
HISTORY:
Added Stats 1969 ch 140 § 1.
§ 1985.2. Subpoena Requiring Attendance of Witness; NoticeAny person who is subpoenaed to appear at a session of court, or at the trial of an issue therein, may, in lieu of appearance at the time specified in the subpoena, agree with the party at whose request the subpoena was issued to appear at another time or upon such notice as may be agreed upon. Any failure to appear pursuant to such agreement may be punished as a contempt by the court issuing the subpoena. The facts establishing or disproving such agreement and the failure to appear may be proved by an affidavit of any person having personal knowledge of the facts.
HISTORY:
Added Stats 1969 ch 140 § 1.
§ 1985.3. Subpoena duces tecum for production of personal records; Definitions; Application of section(a) For purposes of this section, the following definitions apply:
(1) "Personal records" means the original, any copy of books, documents, other writings, or electronic data pertaining to a consumer and which are maintained by any "witness" which is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical therapist, acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory, state or national bank, state or federal association (as defined in Section 5102 of the Financial Code), state or federal credit union, trust company, anyone authorized by this state to make or arrange loans that are secured by real property, security brokerage firm, insurance company, title insurance company, underwritten title company, escrow agent licensed pursuant to Division 6 (commencing with Section 17000) of the Financial Code or exempt from licensure pursuant to Section 17006 of the Financial Code, attorney, accountant, institution of the Farm Credit System, as specified in Section 2002 of Title 12 of the United States Code, or telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, or psychotherapist, as defined in Section 1010 of the Evidence Code, or a private or public preschool, elementary school, secondary school, or postsecondary school as described in Section 76244 of the Education Code.
(2) "Consumer" means any individual, partnership of five or fewer persons, association, or trust which has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary.
(3) "Subpoenaing party" means the person or persons causing a subpoena duces tecum to be issued or served in connection with any civil action or proceeding pursuant to this code, but shall not include the state or local agencies described in Section 7465 of the Government Code, or any entity provided for under Article VI of the California Constitution in any proceeding maintained before an adjudicative body of that entity pursuant to Chapter 4 (commencing with Section 6000) of Division 3 of the Business and Professions Code.
(4) "Deposition officer" means a person who meets the qualifications specified in Section 2020.420.
(b) Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:
(1) To the consumer personally, or at his or her last known address, or in accordance with Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his or her attorney of record. If the consumer is a minor, service shall be made on the minor's parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is at least 12 years of age.
(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.
(c) Prior to the production of the records, the subpoenaing party shall do either of the following:
(1) Serve or cause to be served upon the witness a proof of personal service or of service by mail attesting to compliance with subdivision (b).
(2) Furnish the witness a written authorization to release the records signed by the consumer or by his or her attorney of record. The witness may presume that any attorney purporting to sign the authorization on behalf of the consumer acted with the consent of the consumer, and that any objection to release of records is waived.
(d) A subpoena duces tecum for the production of personal records shall be served in sufficient time to allow the witness a reasonable time, as provided in Section 2020.410, to locate and produce the records or copies thereof.
(e) Every copy of the subpoena duces tecum and affidavit, if any, served on a consumer or his or her attorney in accordance with subdivision (b) shall be accompanied by a notice, in a typeface designed to call attention to the notice, indicating that (1) records about the consumer are being sought from the witness named on the subpoena; (2) if the consumer objects to the witness furnishing the records to the party seeking the records, the consumer must file papers with the court or serve a written objection as provided in subdivision (g) prior to the date specified for production on the subpoena; and (3) if the party who is seeking the records will not agree in writing to cancel or limit the subpoena, an attorney should be consulted about the consumer's interest in protecting his or her rights of privacy. If a notice of taking of deposition is also served, that other notice may be set forth in a single document with the notice required by this subdivision.
(f) A subpoena duces tecum for personal records maintained by a telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code.
(g) Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production. The failure to provide notice to the deposition officer shall not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records.
Any other consumer or nonparty whose personal records are sought by a subpoena duces tecum may, prior to the date of production, serve on the subpoenaing party the witness, and the deposition officer, a written objection that cites the specific grounds on which production of the personal records should be prohibited.
No witness or deposition officer shall be required to produce personal records after receipt of notice that the motion has been brought by consumer, or after receipt of a written objection from a nonparty consumer, except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and consumers affected.
The party requesting a consumer's personal records may bring a motion under Section 1987.1 to enforce the subpoena within 20 days of service of the written objection. The motion shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer's attorney.
(h) Upon good cause shown and provided that the rights of witnesses and consumers are preserved, a subpoenaing party shall be entitled to obtain an order shortening the time for service of a subpoena duces tecum or waiving the requirements of subdivision (b) where due diligence by the subpoenaing party has been shown.
(i) Nothing contained in this section shall be construed to apply to any subpoena duces tecum which does not request the records of any particular consumer or consumers and which requires a custodian of records to delete all information which would in any way identify any consumer whose records are to be produced.
(j) This section shall not apply to proceedings conducted under Division 1 (commencing with Section 50), Division 4 (commencing with Section 3200), Division 4.5 (commencing with Section 6100), or Division 4.7 (commencing with Section 6200) of the Labor Code.
(k) Failure to comply with this section shall be sufficient basis for the witness to refuse to produce the personal records sought by a subpoena duces tecum.
(l) If the subpoenaing party is the consumer, and the consumer is the only subject of the subpoenaed records, notice to the consumer, and delivery of the other documents specified in subdivision (b) to the consumer, is not required under this section.
HISTORY:
Added Stats 1980 ch 976 § 1, operative July 1, 1981. Amended Stats 1981 ch 227 § 1, effective July 20, 1981, operative July 1, 1981, ch 1014 § 1; Stats 1982 ch 666 § 1; Stats 1984 ch 603 § 1; Stats 1985 ch 983 § 1, effective September 26, 1985; Stats 1986 ch 248 § 21, ch 605 § 1, ch 1209 § 2; Stats 1987 ch 20 § 1, ch 149 § 1, effective July 10, 1987, ch 1080 § 10, ch 1492 § 2;Stats 1988 ch 184 § 1; Stats 1990 ch 1220 § 1 (AB 2980); Stats 1996 ch 679 § 1 (SB 1821); Stats 1997 ch 442 § 10 (AB 758); Stats 1998 ch 932 § 19 (AB 1094); Stats 1999 ch 444 § 1 (AB 794); Stats 2004 ch 182 § 18 (AB 3081), operative July 1, 2005; Stats 2005 ch 300 § 6 (AB 496), effective January 1, 2006.
§ 1985.4. Production of Consumer Records Maintained by State or Local AgencyThe procedures set forth in Section 1985.3 are applicable to a subpoena duces tecum for records containing "personal information," as defined in Section 1798.3 of the Civil Code which are otherwise exempt from public disclosure under Section 6254 of the Government Code which are maintained by a state or local agency as defined in Section 6252 of the Government Code. For the purposes of this section, "witness" means a state or local agency as defined in Section 6252 of the Government Code and "consumer" means any employee of any state or local agency as defined in Section 6252 of the Government Code, or any other natural person. Nothing in this section shall pertain to personnel records as defined in Section 832.8 of the Penal Code.
HISTORY:
Added Stats 1984 ch 437 § 1. Amended Stats 1988 ch 441 § 1.
§ 1985.6. Definitions; Subpoena duces tecum for production of employment records; Application of section(a) For purposes of this section, the following definitions apply:
(1) "Deposition officer" means a person who meets the qualifications specified in paragraph (3) of subdivision (d) of Section 2020.
(2) "Employee" means any individual who is or has been employed by a witness subject to a subpoena duces tecum. "Employee" also means any individual who is or has been represented by a labor organization that is a witness subject to a subpoena duces tecum.
(3) "Employment records" means the original or any copy of books, documents, other writings, or electronic data pertaining to the employment of any employee maintained by the current or former employer of the employee, or by any labor organization that has represented or currently represents the employee.
(4) "Labor organization" has the meaning set forth in Section 1117 of the Labor Code.
(5) "Subpoenaing party" means the person or persons causing a subpoena duces tecum to be issued or served in connection with any civil action or proceeding, but does not include the state or local agencies described in Section 7465 of the Government Code, or any entity provided for under Article VI of the California Constitution in any proceeding maintained before an adjudicative body of that entity pursuant to Chapter 4 (commencing with Section 6000) of Division 3 of the Business and Professions Code.
(b) Prior to the date called for in the subpoena duces tecum of the production of employment records, the subpoenaing party shall serve or cause to be served on the employee whose records are being sought a copy of: the subpoena duces tecum; the affidavit supporting the issuance of the subpoena, if any; and the notice described in subdivision (e), and proof of service as provided in paragraph (1) of subdivision (c). This service shall be made as follows:
(1) To the employee personally, or at his or her last known address, or in accordance with Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his or her attorney of record. If the employee is a minor, service shall be made on the minor's parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor, or with whom the minor resides, and on the minor if the minor is at least 12 years of age.
(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the employment records, plus the additional time provided by Section 1013 if service is by mail.
(c) Prior to the production of the records, the subpoenaing party shall either:
(1) Serve or cause to be served upon the witness a proof of personal service or of service by mail attesting to compliance with subdivision (b).
(2) Furnish the witness a written authorization to release the records signed by the employee or by his or her attorney of record. The witness may presume that the attorney purporting to sign the authorization on behalf of the employee acted with the consent of the employee, and that any objection to release of records is waived.
(d) A subpoena duces tecum for the production of employment records shall be served in sufficient time to allow the witness a reasonable time, as provided in paragraph (1) of subdivision (d) of Section 2020, to locate and produce the records or copies thereof.
(e) Every copy of the subpoena duces tecum and affidavit served on an employee or his or her attorney in accordance with subdivision (b) shall be accompanied by a notice, in a typeface designed to call attention to the notice, indicating that (1) employment records about the employee are being sought from the witness named on the subpoena; (2) the employment records may be protected by a right of privacy; (3) if the employee objects to the witness furnishing the records to the party seeking the records the employee shall file papers with the court prior to the date specified for production on the subpoena; and (4) if the subpoenaing party does not agree in writing to cancel or limit the subpoena, an attorney should be consulted about the employee's interest in protecting his or her rights of privacy. If a notice of taking of deposition is also served, that other notice may be set forth in a single document with the notice required by this subdivision.
(f) Any employee whose employment records are sought by a subpoena duces tecum may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and the deposition officer at least five days prior to production. The failure to provide notice to the deposition officer does not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records.
Any nonparty employee whose employment records are sought by a subpoena duces tecum may, prior to the date of production, serve on the subpoenaing party, and the deposition officer, the witness a written objection that cites the specific grounds on which production of the employment records should be prohibited.
No witness or deposition officer shall be required to produce employment records after receipt of notice that the motion has been brought by an employee, or after receipt of a written objection from a nonparty employee, except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and employees affected.
The party requesting an employee's employment records may bring a motion under subdivision (c) of Section 1987 to enforce the subpoena within 20 days of service of the written objection. The motion shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the employment records and the employee or the employee's attorney.
(g) Upon good cause shown and provided that the rights of witnesses and employees are preserved, a subpoenaing party shall be entitled to obtain an order shortening the time for service of a subpoena duces tecum or waiving the requirements of subdivision (b) where due diligence by the subpoenaing party has been shown.
(h) This section may not be construed to apply to any subpoena duces tecum which does not request the records of any particular employee or employees and which requires a custodian of records to delete all information which would in any way identify any employee whose records are to be produced.
(i) This section does not apply to proceedings conducted under Division 1 (commencing with Section 50), Division 4 (commencing with Section 3200), Division 4.5 (commencing with Section 6100), or Division 4.7 (commencing with Section 6200) of the Labor Code.
(j) Failure to comply with this section shall be sufficient basis for the witness to refuse to produce the employment records sought by subpoena duces tecum.
HISTORY:
Added Stats 1995 ch 299 § 1 (AB 617). Amended Stats 1996 ch 679 § 1 (SB 1821); Stats 1997 ch 442 § 11 (AB 758); Stats 1998 ch 932 § 20 (AB 1094). Amended Stats 1999 ch 444 § 2 (AB 794); Stats 2004 ch 101 § 1 (SB 1465) (ch 101 prevails), ch 182 § 19 (AB 3081), operative July 1, 2005.
§ 1987. Service of Subpoena, or of Written Notice
(a) Except as provided in Sections 68097.1 to 68097.8, inclusive, of the Government Code, the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day's attendance there. The service shall be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. The service may be made by any person. If service is to be made on a minor, service shall be made on the minor's parent, guardian, conservator, or similar fiduciary, or if one of those persons cannot be located with reasonable diligence, service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is 12 years of age or older. If the minor is alleged to come within the description of Section 300, 601, or 602 of the Welfare and Institutions Code and the minor is not in the custody of a parent or guardian, regardless of the age of the minor, service also shall be made upon the designated agent for service of process at the county child welfare department or the probation department under whose jurisdiction the minor has been placed.
(b) In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. If entitled thereto, the witness, upon demand, shall be paid witness fees and mileage before being required to testify. The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.
(c) If the notice specified in subdivision (b) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required.
Subject to this subdivision, the notice provided in this subdivision shall have the same effect as is provided in subdivision (b) as to a notice for attendance of that party or person.
HISTORY:
Enacted 1872. Amended Stats 1963 ch 1485 § 3; Stats 1968 ch 933 § 1; Stats 1969 ch 311 § 1, ch 1034 § 1.5. Amended Stats 1981 ch 184 § 2; Stats 1986 ch 605 § 2; Stats 1989 ch 1416 § 28; Stats 2002 ch 1008 § 6 (AB 3028).
