October 2018 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 2017 update.
New California Department of Tax and Fee Administration and Office of Tax Appeals. The legislature has created the California Department of Tax and Fee Administration, and the Office of Tax Appeals, as the successors to the former State Board of Equalization. See §§1.53–1.54.
Representation at hearing. For a recent case reiterating that a licensee may represent his- or herself at a hearing and a corporation may be represented by anyone designated by the corporation, see Davis Test Only Smog Testing v Department of Consumer Affairs (2017) 15 CA5th 1009 in §1.72.
Suspension as part of criminal proceeding. An evidentiary hearing on a defendant’s danger to the public is required before the suspension of a defendant’s license as a bail condition. See Naidu v Superior Court (2018) 20 CA5th 300 in §2.104.
Order for medical or psychiatric examination. An agency may order an examination anytime it appears that a licensee in a health-care-related field may be unable to practice safely, and the licensee must comply with the order for examination. See Fettgather v Board of Psychology (2017) 17 CA5th 1340 in §§2.106, 2.109, 2.113.
Civil actions. For a recent case discussing how a respondent sought declaratory relief for a proper definition of terms in the Labor Code, see Contractors’ State License Bd. v Superior Court (2018) 23 CA5th 125 in §4.12. In Public Employees’ Retirement Sys. v Santa Clara Valley Transp. Auth. (2018) 23 CA5th 1040, the agency bypassed the prescribed administrative process and sought declaratory relief for the interpretation of a statute. See §4.13.
Res judicata and collateral estoppel. In Wassman v South Orange County Community College Dist. (2018) 24 CA5th 825, the court of appeal found that res judicata applied to claims arising from a librarian’s earlier dismissal of employment administrative action, and that the Fair Employment and Housing Act claims not addressed by the earlier administrative hearing were barred by failure to exhaust administrative remedies. See §4.17.
Substantial relationship requirement. Substantial evidence supported the board’s conclusion that a physical therapist was intoxicated, and used alcohol in a manner dangerous to herself and others, when she drove into a parked car. See Walker v Physical Therapy Bd. (2017) 16 CA5th 1219 in §§7.66, 7.80.
Exhaustion of administrative remedies. Exhaustion of administrative remedies is not required before bringing an action under the Labor Code for claims before the Labor Commissioner, unless the statute expressly requires exhaustion. See Terris v County of Santa Barbara (2018) 20 CA5th 551 in §§8.108A, 8.109. For a recent case discussing a University of California employee’s retaliation claim under the Whistleblower Act (Govt C §§8547–8547.12), see Taswell v Regents of Univ. of Cal. (2018) 23 CA5th 343 in §8.108A.
Administrative remedy inadequate. The California Supreme Court has granted review in Plantier v Ramona Mun. Water Dist. (review granted Sept. 13, 2017; superseded opinion at 12 CA5th 856). The court of appeal had found that a challenge to the method used by a district to calculate its wastewater service fees or charges was outside the scope of administrative remedies. See §8.110.
Rehearing or reconsideration. For a recent case discussing how under Govt C §11521 an agency may set an effective date for its decision that effectively cuts off its power of reconsideration, see Saint Francis Mem. Hosp. v State Dep’t of Pub. Health (2018) 24 CA5th 617 in §§8.69, 8.87, 9.31.