Administrative Adjudication and Formal Hearings

The California Government Code, in Title 2, Division 3, Part 1, Chapter 5, provides for formal hearings in administrative adjudications.

Government Code Section 11500 defines the following terms: “agency,” “party,” “respondent,” “administrative law judge,” and “agency member.” Section 11501 specifies that 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.

Section 11502 requires all hearings of state agencies to be conducted under this chapter to be conducted by administrative law judges on the staff of the Office of Administrative Hearings (OAH). This subdivision applies to a hearing required to be conducted under this chapter that is conducted under the informal hearing or emergency decision procedure.

In addition, the Director of OAH has power to appoint a staff of administrative law judges for the office. Each administrative law judge must be 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.

Section 11503 provides that a hearing to determine whether a right, authority, license, or privilege should be revoked, suspended, limited, or conditioned is initiated by filing an accusation or District Statement of Reduction in Force (DSRF). The accusation or DSRF is a written statement of charges that sets 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 their defense.

Section 11504 states that a hearing to determine whether a right, authority, license, or privilege should be granted, issued, or renewed must be initiated by filing a statement of issues. The statement of issues is 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. 

Section 11504.5 provides that all references to accusations are deemed to be applicable to statements of issues except in those cases where compliance is not required.

Section 11505 states that, upon the filing of the accusation or DSRF, the agency must serve a copy on the respondent. The agency may include with the accusation or DSRF any information that it deems appropriate, but it must include a postcard or other form entitled Notice of Defense, or Notice of Participation, that, when signed by or on behalf of the respondent and returned to the agency, will acknowledge service of the accusation or DSRF and constitute a notice of defense, or notice of participation.

In addition, the copy of the accusation or DSRF be accompanied by specified information. The statement to respondent must be substantially in the specified form. The accusation or DSRF may be sent to the respondent by any means selected by the agency, but no order adversely affecting the rights of the respondent is tol be made by the agency in any case unless the respondent has been served personally or by registered mail.

Section 11506 allows, within 15 days after service, the respondent may file with the agency a notice of defense, or, as applicable, notice of participation, in which the respondent may take half a dozen specified actions. Within the time specified, the respondent may file one or more notices of defense, or, as applicable, notices of participation, upon any or all of these grounds but all of these notices must be filed within that period unless the agency in its discretion authorizes the filing of a later notice.

In addition, the respondent is entitled to a hearing on the merits if the respondent files a notice of defense or notice of participation, and the notice is deemed a specific denial of all parts of the accusation or DSRF not expressly admitted. Failure to file a notice of defense or notice of participation constitutes a waiver of respondent’s right to a hearing, but the agency in its discretion may nevertheless grant a hearing.

Section 11507 provides that, at any time before the matter is submitted for decision, the agency may file an amended or supplemental accusation or District Statement of Reduction in Force. All parties are notified of the filing. If new charges are presented, the agency must afford the respondent a reasonable opportunity to prepare his or her defense to the new charges.

Section 11507.3 states that, 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.

Section 11507.5 specifies that Section 11507.6 provides the exclusive right to and method of discovery as to any proceeding governed by this chapter.

Section 11507.6 states that, after 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:

• Obtain the names and addresses of witnesses to the extent known to the other party

• 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;

• A statement pertaining to the subject matter of the proceeding made by any party to another party or person;

• Statements of witnesses then proposed to be called by the party.

• All writings;

• Any other writing or thing which is relevant and which would be admissible in evidence;

• Investigative reports made by or on behalf of the agency or other party pertaining to the subject matter of the proceeding that meeting specified informational requirements.

The term “statements” is defined. Nothing authorizes 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. Discovery of all categories of evidence specified in this section may be conducted electronically by means prescribed by an administrative law judge.

Section 11507.7 provides that any party claiming the party’s request for discovery 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 specified law.

The motion must state facts showing the respondent party failed or refused to comply, 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.

The motion is to be served upon respondent party and filed within 15 days after the respondent party first evidenced failure or refusal to comply, 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.

The hearing on the motion to compel discovery must 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 administrative law judge decides the case on the matters examined in camera, the papers filed by the parties, and oral argument and additional evidence as the administrative law judge may allow.

Section 11508 requires the agency to consult the office, and subject to the availability of its staff, determine the time and place of the hearing, which has to be held by the office in Sacramento, Oakland, Los Angeles, or San Diego, whichever is closest to the location where the transaction occurred or the respondent resides.

Section 11509 requires the agency to deliver or mail a notice of hearing to all parties at least 10 days prior to the hearing. The notice to the respondent must be substantially in the specified form.

Section 11511 states that, on verified petition of any party, an administrative law judge or 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. The petition must set forth specified information.

Section 11511.5 provides that, 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 sets the time and place for the prehearing conference, and must give reasonable written notice to all parties. The prehearing conference may deal with one or more of the 12 specified matters.

In addition, 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. The ALJ is authorized to transit specified information.

Section 11511.7 allows the administrative law judge to order the parties to attend and participate in a settlement conference. The administrative law judge sets the time and place for the settlement conference, and gives reasonable written notice to all parties.

Section 11512 states that every hearing in a contested case must be presided over by an administrative law judge. The agency determines 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.

When the agency itself hears the case, the administrative law judge presides at the hearing, rules on the admission and exclusion of evidence, and advises the agency on matters of law. When the administrative law judge alone hears a case, the judge exercises 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.

In addition, an administrative law judge or agency member is required to voluntarily disqualify themselves and withdraw from any case in which there are grounds for disqualification. 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.

Section 11513 requires oral evidence to be taken only on oath or affirmation. Each party has five specified rights. The hearing is not conducted according to technical rules relating to evidence and witnesses, except as provided. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but over timely objection is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

Section 11514 specifies that, 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. Unless the opposing party, within 7 days after 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, is given the same effect as if the affiant had testified orally. The notice must be in substantially the specified form.

Section 11515 provides that, 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. A party is given a reasonable opportunity on request to refute the officially noticed matters by evidence or by written or oral presentation of authority.

Section 11516 allows the agency to order amendment of the accusation or District Statement of Reduction in Force after submission of the case for decision. Each party is given notice of the intended amendment and opportunity to show that he or she will be prejudiced thereby unless the case is reopened to permit the introduction of additional evidence on his or her behalf. If prejudice is shown, the agency must reopen the case to permit the introduction of additional evidence.

Section 11517 states that a contested case may be originally heard by the agency itself or, at the discretion of the agency, an administrative law judge may originally hear the case alone. If a contested case is originally heard before an agency itself, then specified provisions apply.

Within 100 days of receipt by the agency of the administrative law judge’s proposed decision, the agency may act as specified. If the agency fails to act within 100 days of receipt of the proposed decision, the proposed decision is deemed adopted by the agency. The agency may do any of the five specified actions. The decision of the agency must be filed immediately by the agency as a public record and a copy is to be served by the agency on each party and his or her attorney.

Section 11518 requires copies of the decision to be delivered to the parties personally or sent to them by registered mail.

Section 11518.5 states that, 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 is to be given to the other parties to the proceeding. The application is not a prerequisite for seeking judicial review.

Section 11519 requires the decision to 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 becomes effective sooner, or a stay of execution is granted.

Section 11519.1 specifies that a decision rendered against a specified licensee may include an order of restitution for any financial loss or damage found to have been suffered by a person in the case.

Section 11520 states that, if the respondent either fails to file a notice of defense, or, as applicable, notice of participation, 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.

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 agency in its discretion may vacate the decision and grant a hearing on a showing of good cause. The term “good cause” is defined.

Section 11521 allows the agency to order a reconsideration of all or part of the case on its own motion or on petition of any party. The agency must notify a petitioner of the time limits for petitioning for reconsideration. The power to order a reconsideration expires 30 days after the delivery or mailing of a decision to a respondent, A delay can be requested and allowed.

Section 11522 specifies that 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 must give notice to the Attorney General of the filing of the petition and the Attorney General and the petitioner is afforded an opportunity to present either oral or written argument before the agency itself. The agency itself decides the petition.

Section 11523 allows judicial review by filing a petition for a writ of mandate, which is subject to the statutes relating to the particular agency. Except as otherwise provided, the petition must be filed within 30 days after the last day on which reconsideration can be ordered. The right to petition is not affected by the failure to seek reconsideration before the agency. Records of the proceedings and how they are used are described in detail.

Section 11524 allows the agency to grant continuances. When an administrative law judge of OAH 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. A part must 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 party may seek judicial review of a denied continuance.

Section 11526 authorizes the members of an agency qualified to vote on any question to vote by mail or another appropriate method.

Section 11527 requires any sums authorized to be expended under this chapter by any agency to be a legal charge against the funds of the agency.

Section 11528 authorizes in any proceedings an agency, agency member, secretary of an agency, hearing reporter, or administrative law judge to have power to administer oaths and affirmations and to certify to official acts.

Section 11529 authorizes the administrative law judge of the Medical Quality Hearing Panel to issue an interim order suspending a license, imposing drug testing, continuing education, supervision of procedures, limitations on the authority to prescribe, furnish, administer, or dispense controlled substances, 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.

All orders authorized by this section are to be issued only after a hearing, 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. The licensee is generally to receive at least 15 days’ prior notice of the hearing.

In addition, for a hearing under this section, the licentiate has minimum specified rights. Upon service of the accusation or petition to revoke probation, the licensee has all of the rights and privileges available as specified in this chapter. If the licensee requests a hearing on the accusation, the board must 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.

There are detailed procedures for the use of interim orders.