May 2017 Update
The current update includes changes 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.
Exception to the applicability of CCP §1094.5. The Los Angeles Employee Relations Board is not governed by Govt C §3509.5, which governs the Public Employee Relations Board. See City of Los Angeles v City of Los Angeles Employee Relations Bd. (2016) 7 CA5th 150, in §§1.10, 13.5.
Exhaustion of administrative remedies. For a recent case discussing how a plaintiff committed invited error by arguing earlier that the trial court, not the administrative agency, should have decided the wage order issue, see Bains v Department of Indus. Relations (2016) 244 CA4th 1120, in §§3.11, 3.47.
When agency lacks jurisdiction. In Pacific Shores Prop. Owners Ass'n v Department of Fish & Wildlife (2016) 244 CA4th 12, the court found that the Coastal Commission was not acting beyond its jurisdiction by indefinitely maintaining land use authority over a subdivision. See §3.34.
Bias. The proper remedy after a DMV hearing was found tainted by the bias of a hearing officer having accepted bribes was to remand the matter for a new administrative hearing before a different, qualified hearing officer. See Hall v Superior Court (2016) 3 CA5th 792, in §§3.60B, 6.26, 6.42, 6.86, 6.87, 16.11.
Failure of agency to comply with time limits. In Seibert v City of San Jose (2016) 247 CA4th 1027, the court found that a firefighter was estopped from raising a jurisdictional objection, even though the disciplinary notice was not timely filed with the commission, because the firefighter had received notice within the time limit and the filing requirement was not mandatory. See §§6.9, 6.72, 6.153, 6.160.
Right to counsel and examine witnesses. For a recent case discussing the right to counsel and the right to cross-examine a witness in a student sexual misconduct matter, see Doe v Regents of Univ. of Cal. (2016) 5 CA5th 1055, in §§6.55, 6.61.
Evidence received by agency outside hearing. Fair trial issues may arise when the hearing officer or agency receives evidence or communications outside of the hearing. See Pinheiro v Civil Serv. Comm'n for County of Fresno (2016) 245 CA4th 1458, in §§6.35, 6.47, 6.78.
Pleadings did not give fair notice. In Doe v University of S. Cal. (2016) 246 CA4th 221, the court found that a student disciplinary notice failed to include information about the basis of the accusation; the student was initially investigated for sexual assault but later found to have endangered another student. See §§6.26, 6.81, 8.13.
Combination of functions in agency. In Drakes Bay Oyster Co. v California Coastal Comm'n (2016) 4 CA5th 1165, the court found that commission staff members' participation in litigation after an administrative proceeding did not violate due process. See §6.90.
Public interest standing. In Weiss v City of Los Angeles (2016) 2 CA5th 194, the court found that a motorist had public interest standing to challenge a city's initial review procedure for parking citations. See §§7.3, 7.18.
Dismissal for loss of jurisdiction. In determining whether an employee's resignation or retirement divests a civil service commission of jurisdiction, the court must search the rules applicable to the employee's employment. See Weisner v Santa Cruz County Civil Serv. Comm'n (2016) 248 CA4th 340, in §13.19A.
Appealability issues. Certain statutes, e.g., Govt C §65589.5, require the filing of a writ petition to review the trial court order. See Kalnel Gardens, LLC v City of Los Angeles (2016) 3 CA5th 927, in §16.7.
Adequacy of appeal as remedy. In City of Carlsbad v Scholtz (2016) 1 CA5th 294, the court dismissed an appeal from a denial of a writ petition that challenged an evidentiary ruling of a hearing officer because the city had an adequate remedy by way of an administrative appeal followed by a writ of administrative mandamus. See §16.60.
Cost of record. The interested real party may still recover costs for preparing the record under CCP §1032, if the record was prepared in one of the approved ways of Pub Res C §21167.6. See Citizens for Ceres v City of Ceres (2016) 3 CA5th 237, in §17.7.
Actions involving the Medical Board of California. For a recent case discussing how a physician's misdemeanor conviction for insurance fraud did not support revocation of his licence, see Pirouzian v Superior Court (2016) 1 CA5th 438, in §§6.73, 17.22.