October 2017 Update
The current update includes changes throughout this publication that reflect recent developments in case law, legislation, court rules, and jury instructions. Summarized below are some of the more important developments included in this update since publication of the 2016 update.
Regulations. For a recent case discussing the difference between interpretive and quasi-legislative regulations, see Association of Cal. Ins. Cos. v Jones (2017) 2 C5th 376 in §1.31.
Neutral presiding officer. Agency staff members may participate in litigation following the administrative proceeding. See Drakes Bay Oyster Co. v California Coastal Comm'n (2016) 4 CA5th 1165 in §1.66.
Due process fair hearing requirements. In Doe v Regents of Univ. of Cal. (2016) 5 CA5th 1055, the court held that although student discipline procedures did allow respondent to have an "advisor" who was counsel, counsel could not participate in the discipline hearing. In addition, the right to cross-examine and confront adverse witnesses may be limited to the submission to the panel of written questions by respondent to ask the claimant. See §§1.70, 1.71C, 1.72, 9.41.
Privacy. The medical board did not have to show a compelling interest to access the Controlled Substance Utilization Review and Evaluation System (CURES) (Health & S C §11165) database without a warrant or subpoena, because its actions did not implicate a fundamental autonomy right. See Lewis v Superior Court (2017) 3 C5th 561 in §2.30.
Subpoenas. For a recent case discussing how, in the investigation of a potential improper prescribing of controlled substances by a psychiatrist, the scope of a subpoena is limited to records that are relevant and material, see Cross v Superior Court (2017) 11 CA5th 305 in §§2.30, 2.40, 7.136.
Res judicata. Res judicata does not apply if the administrative proceeding involves different substantive law than the previous proceeding. See Ronald F. v Department of Developmental Servs. (2017) 8 CA5th 84 in §4.27.
Default. For a recent case discussing the failure of a corrections officer to appear at an appeal from his dismissal, see Thaxton v State Personnel Bd. (2016) 5 CA5th 681 in §§4.45. 4.52.
Ex parte communications. In Agricultural Labor Relations Bd. v Superior Court (2016) 4 CA5th 675, the court held that the remedy for a possible ex parte communication between the labor relations board and its general counsel regarding the decision to seek injunctive relief against an employer was not to have the communication disclosed in a collateral proceeding under the California Public Records Act (CPRA) (Govt C §§6250—6276.48), but to make the communication a part of the record in the administrative proceeding. See §6.13.
Determination of bias. In a DMV hearing, bias was established by an officer having accepted bribes. See Hall v Superior Court (2016) 3 CA5th 792 in §6.20.
Hearsay. For a recent case discussing hearsay evidence in a nuisance proceeding, see Clary v City of Crescent City (2017) 11 CA5th 274 in §7.99.
What constitutes majority or quorum. When there is a tie vote, the board or agency is deemed to have failed to act, and the tie vote resulting in "no action" is still subject to judicial review. See Grist Creek Aggregates v Superior Court (2017) 12 CA5th 979 in §8.16.
Rehearing or reconsideration. For two recent cases discussing how a change in the status of an employee may or may not cause a civil service commission to lose jurisdiction over the underlying matter, depending on the local civil service rules, see Weisner v Santa Cruz County Civil Serv. Comm'n (2016) 248 CA4th 340 and Hughes v County of San Bernardino (2016) 244 CA4th 542 in §8.101.
Exhaustion of administrative remedies. A physician may pursue a retaliation claim under Health & S C §1278.5 (hospital whistleblower statute) without first obtaining an administrative mandamus judgment. In addition, a physician does not need to complete the internal peer review process before bringing the action. See Armin v Riverside Community Hosp. (2016) 5 CA5th 810 in §8.108A.
Administrative remedy inadequate. For a recent case discussing how a challenge to the method used by a water district to calculate its wastewater service fees or charges was outside the scope of administrative remedies, see Plantier v Ramona Mun. Water Dist. (2017) 12 CA5th 856 in §8.110.