The opinion
Filed 3/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
PODIATRIC MEDICAL BOARD OF
CALIFORNIA,
Petitioner,
v. A155260
THE SUPERIOR COURT OF THE CITY (San Francisco County Super.
AND COUNTY OF SAN FRANCISCO, Ct. No. CPF-18-516147)
Respondent;
PETER REDKO,
Real Party in Interest.
During the course of a disciplinary proceeding against Dr. Peter Redko,
the Podiatric Medical Board of California1 asked an administrative law judge
(ALJ) to exclude the testimony of Dr. Redko’s designated expert witness
because the expert had declined to comply with a discovery request made by
the Board in a subpoena duces tecum. The Board’s request was granted and
the expert was barred from testifying at the subsequent hearing. The
accusation against Dr. Redko was sustained, and he was placed on probation.
All administrative proceedings were conducted before what was then
1
called the California Board of Podiatric Medicine. During the pendency of
this appeal, it was renamed the Podiatric Medical Board of California.
(Stats. 2018, ch. 102, § 1, amending Bus. & Prof. Code, § 2460, subd. (a).) For
obvious purposes of clarity and simplicity, it will hereafter be referred to
simply as “the Board.”
1
Dr. Redko petitioned for a writ of administrative mandate, which the trial
court granted because the provisions in the Administrative Procedure Act
(APA) governing contested adjudicatory hearings (Gov. Code, § 11400 et seq.)
do not expressly provide for imposition of witness exclusion as a discovery
sanction.
The Board argues that the power to exclude testimony to counter
discovery “abuse” should be recognized as an implied power of an ALJ’s
statutory authority under the APA to “exercise all powers relating to the
conduct of the hearing,” which includes ruling “on the admission and
exclusion of evidence.” (Gov. Code, § 11512, subd. (b).)
The ruling to exclude Dr. Redko’s expert was made prior to the hearing
by the presiding ALJ, not the ALJ who actually conducted the hearing. Thus,
witness preclusion at issue here cannot be recognized as an implied power
“relating to the conduct of the hearing.” The Legislature has provided other
mechanisms in the APA for resolving discovery disputes, mechanisms the
Board did not use to enforce compliance with its subpoena. Finally, because
the Legislature knows how to draft statutes that authorize witness
preclusion as a sanction for misuse of the discovery process in administrative
proceedings, the absence of such a power in the APA cannot be deemed
inadvertent. For these reasons, we will not overturn the trial court’s
decision.
BACKGROUND
The Board licensed Peter Redko as a doctor of podiatric medicine in
2003. In April of 2017, the Board filed an accusation seeking to have him
disciplined for two “causes”: (1) “Unprofessional Conduct,” particularized as
“gross negligence and/or repeated negligent acts based on the care provided
to Patient MS” and (2) “Inadequate Medical Record Keeping.” In accordance
2
with Government Code section 11507.6, the Board asked Dr. Redko to
identify those witnesses he “intended to . . . call . . . to testify at the hearing,”
and to produce various statements, investigative reports, and “[a]ny other
writing or thing which is relevant and which would be admissible in
evidence . . . pertaining to the persons named in the [accusation].”
An ALJ conducted a prehearing conference to settle on various aspects
of the actual hearing. In the order memorializing those matters, the ALJ
directed “The parties’ attention . . . to Business and Professions Code section
2334, concerning the timely disclosure of expert witnesses.”
The Board issued a subpoena duces tecum to Dr. Thomas Chang, also a
doctor of podiatric medicine, whom Dr. Redko had designated as his expert
witness in accordance with Business and Professions Code section 2334.2
Dr. Redko moved to quash the subpoena.3 In its opposition, the Board argued
that all the grounds for the motion were baseless, and, therefore, “The
request to quash the subpoena should be denied, and immediate compliance,
2The subpoena directed Chang to produce “any and all, including but
not limited to, written communications, emails, notes, letters and voice mail
messages with [Dr. Redko’s] counsel,” along with “any and all documents,
including but not limited to, journals, articles, notes, records, medical
records, x-rays, images, that were reviewed, relied on, or referenced in
drafting your written expert opinion.”
3 Dr. Redko’s motion was based on three grounds: (1) the documents
requested had already been provided; (2) notice to the patient was not
provided; and (3) upon receiving the subpoena, Dr. Chang telephoned the
Board’s attorney “to inquire as to the nature and purpose of the subpoena.”
The ensuing conversation was interpreted by Dr. Redko’s attorney as the
Board’s attorney “seeking to discover, what, if anything, she could use at the
hearing through her request for production of documents,” and such
“behavior gives rise to the presumption that the Subpoena Duces Tecum was
issued in order to circumvent [Dr. Redko’s] attorney and create the
opportunity for improper ex parte communication with [Dr. Redko’s] expert
witness.”
3
now overdue, with the subpoena should be ordered. In the alternative, an
order should issue precluding Dr. Chang from testifying or offering expert
opinions at the hearing.” As required by regulation (see fn. 6, post), the
motion was directed to, and denied by, the presiding ALJ.
The day after he filed his motion to quash, Dr. Redko notified the Board
that he intended to call two expert witnesses—Dr. Chang, and Dr. Robert D.
Teasdale. The Board promptly moved under Business and Professions Code
section 2334 to “exclude expert testimony” by Dr. Teasdale because he had
not been disclosed in a timely manner.
Three days later, the Board then moved to exclude Dr. Chang’s
testimony by reason of his “failure to comply with Duly Issued Subpoena
Duces Tecum.” Although Business and Professions Code section 2334 was
mentioned in the moving papers, it was not claimed that Dr. Redko or
Dr. Chang had failed to provide the information required by that statute.4
Nor did the Board cite the statute as authority to exclude Dr. Chang’s
4 The information required to be provided to the opposing party is “(1)
A curriculum vitae setting forth the qualifications of the expert. [¶] (2) A
complete expert witness report, which must include the following: [¶] (A) A
complete statement of all opinions the expert will express and the bases and
reasons for each opinion. (B) The facts or data considered by the expert in
forming the opinions. (C) Any exhibits that will be used to summarize or
support the opinions. [¶] (3) A representation that the expert has agreed to
testify at the hearing. [¶] (4) A statement of the expert’s hourly and daily fee
for providing testimony and for consulting with the party who retained his or
her services.” (Bus. & Prof. Code, § 2334, subd. (a).)
The statute begins “with respect to the use of expert testimony by the
Medical Board,” but it appears it applies equally to the Board by virtue of
Business and Professions Code section 2222. Dr. Redko disputes this. We
need not decide the issue, because, as already established, Dr. Redko did not
raise this issue in either the administrative proceeding or the trial court, but
accepted that the provisions of Business and Professions Code section 2334
did apply to him. (See Evid. Code, § 623.)
4
testimony. In fact, no other statute or authority was cited in the Board’s
moving papers. (See Cal. Code Regs., tit. 1, § 1022, subd. (d) [“Motions . . .
shall state in plain language the relief sought and the . . . legal authority that
support the Motion”].)
Again, both motions were directed to, and ruled upon, by the presiding
ALJ. His decision to exclude Dr. Teasdale was not challenged by Dr. Redko
in the trial court. It is only the other order—made five days before the
adjudicatory hearing was scheduled to begin—which is at issue.
As stated in his order excluding Dr, Chang’s testimony, the presiding
ALJ concluded Dr. Redko’s arguments against the validity of the Board’s
subpoena (see fn. 3, ante) were “without any reasonable basis. Dr. Chang has
been designated by [Dr. Redko] as an expert witness in connection with
Dr. Redko’s treatment of Patient MS. Communications between Dr. Redko’s
attorney and Dr. Chang are not the ‘personal records’ of Dr. Redko’s attorney;
therefore, as set forth in the . . . Order denying Dr. Redko’s motion to quash,
no Notice to Consumer directed to Dr. Redko’s attorney was required.
Communications between Dr. Redko’s attorney and Dr. Chang are relevant to
the bases of Dr. Chang’s opinion, and they are the proper object of discovery.
[Dr. Redko] has not asserted any reasonable basis for Dr. Chang to refuse to
produce those communications. As Dr. Redko has made it plain that
Dr. Chang will not produce the communications sought by the subpoena, the
appropriate remedy is to preclude Dr. Chang from testifying.” No statute or
authority is mentioned in the order.
Following a three-day evidentiary hearing, the assigned ALJ concluded
that both of the “causes” of the accusation were sustained by the Board’s
evidence. The ALJ drafted a 23-page proposed decision that was adopted by
the Board. Dr. Redko’s license was revoked, but the revocation was stayed,
5
and he was “placed on probation for five years” with specified “terms and
conditions.”
Dr. Redko moved for reconsideration on various grounds, one of which
was that the presiding ALJ “did not have express statutory authority to order
an evidentiary sanction . . . for Dr. Chang’s failure to comply with a subpoena
duces tecum.” The motion was denied by operation of law when the Board
took no action on it. (See Gov. Code, § 11521, subd. (a); Ginns v. Savage
(1964) 61 Cal.2d 520, 525 [power to grant reconsideration expires on date
decision becomes effective].)
The trial court granted Dr. Redko’s petition for a writ of administrative
mandate (Code Civ. Proc., § 1094.5) commanding the Board to set aside its
decision. The court’s reasoning was stated as follows:
“The Board subpoenaed documents from Dr. Redko’s sole expert on the
standard of care, Dr. Thomas Chang. Disputes abound as to this subpoena
duces tecum, but they need not be resolved, because the Board’s hearing
officer lacked the power to impose the evidentiary sanction in any event.
“As the Board concedes, ‘administrative agencies only have the power
conferred on them by statute.’ The two statutes the Board cites confer no
power to impose an evidentiary sanction for discovery misuse, much less by
effectively case-dispositive sanction. Government Code [section] 11512[,
subdivision] (b) regards review of an administrative law judge’s evidentiary
rulings; it mentions no evidentiary sanction of any kind. Government Code
[section] 11450.20 addresses subpoenas in administrative proceedings, again
with no mention of evidentiary sanctions. Nor has either statute ever been
construed by an appellate court to empower evidentiary sanctions.
“This is in stark contrast to the powers conferred on California courts.
For example, Code of Civil Procedure [section] 2023.030[, subdivision] (c)
6
provides: ‘The court may impose an evidence sanction by an order
prohibiting any party engaging in the misuses of the discovery process from
introducing designated matters in evidence.’ (See also Waicis v. Superior
Court (1990) 226 Cal.App.3d 283, 287 [expert’s trial testimony barred].) The
California Legislature thus clearly illustrates that it knows how to grant
powers to impose evidentiary sanctions when that is what it intends. The
Legislature has made no such grant of power to administrative agencies or
their hearing officers.
“Because the Board and its hearing officers had no authority to impose
the evidentiary sanction barring Dr. Chang from testifying, and because
Dr. Chang’s testimony is key to the case, petitioner’s request for a writ of
mandate is GRANTED.”
The Board filed a notice of appeal from the ensuing judgment directing
issuance of the writ. Questions arose during the course of our initial
consideration of the issues presented, for which the parties provided
supplemental briefing.
DISCUSSION
The Jurisdictional Issue
In his supplemental briefing, Dr. Redko for the first time argues that
the Board’s appeal is unauthorized. Citing our analysis in Landau v.
Superior Court (1998) 81 Cal.App.4th 191 (Landau), Dr. Redko draws our
attention to Business and Professions Code sections 2335 and 2337. The
former provides in pertinent part: “If . . . [the Board] does not refer the case
back to the [ALJ] for the taking of additional evidence or issue an order of
nonadoption within 100 calendar days, the [ALJ’s proposed] decision shall be
final and subject to review under Section 2337.” (Bus. & Prof. Code, § 2335,
subd. (c)(3).) The latter states that, with respect to “superior court review of
7
a decision revoking, suspending, or restricting a license,” “review of the
superior court’s decision shall be pursuant to a petition for an extraordinary
writ.”
In Landau, we concluded that the 1995 enactment amending these
statutes (Stats. 1995, ch. 708) “eliminated direct appeal via Code of Civil
Procedure section 1094.5 from the superior court decision granting or denying
the petition for writ of mandate and substituted discretionary writ review by
the appellate court.” (Landau, supra, 81 Cal.App.4th at pp. 188–189.) Thus,
Dr. Redko’s objection appears well taken.
In response, the Attorney General, representing the Board, suggests
that “it is unclear whether Business and Professions Code section 2337
applies to this particular appeal,” and asks then we exercise the unusual
power to treat the appeal as a petition for an extraordinary writ. Having
become familiar with the subject of this appeal, we realize it presents a pure
issue of law pertaining to the regulatory power of the Board to protect patient
safety and the public health. (Cf. Bus. & Prof. Code, § 2460.1 [“Protection of
the public shall be the highest priority for the [Board] in exercising its
licensing, regulatory, and disciplinary functions”].) The case has been
thoroughly briefed and argued. Both sides were almost equally tardy in
raising the issue. (Cf. Sela v. Medical Bd. of California (2015) 237
Cal.App.4th 221, 221–232 [issue raised by Court of Appeal].) Accordingly, as
was done in Zabetian v. Medical Bd. of California (2000) 80 Cal.App.4th 462,
we will treat the Board’s purported appeal as a petition for a writ of mandate,
and proceed to the merits.
The Parties’ Arguments
For Dr. Redko, the case against him must be governed solely by the
APA, which has specific procedures addressing the failure to provide
8
discovery which were not followed here. The Legislature knows how to vest
administrative agencies and ALJs with the power to impose discovery abuse
sanctions. Because, as the trial court recognized, the APA did not expressly
authorize the exclusion of Dr, Chang’s testimony, the order of the presiding
ALJ preventing Dr. Chang from testifying was in excess of his power and
thus void. The Board’s decision was properly set aside.
The Board accepts the predicate of Dr. Redko’s argument—that we
must look primarily to the APA. The Board reiterates that what occurred
was justified by the provision in the APA (Gov. Code, § 11512, subd. (b)),
which vests the ALJ conducting the hearing with authority to “exercise all
powers relating to the conduct of the hearing,” including “admitting or
excluding evidence.” If this be inadequate, the Board asserts that that ALJ
ought to be recognized under the same statute as having the implied power to
control abuse of the administrative hearing process by imposing the sanction
of preventing a witness from testifying: “Although not specially authorized in
the Government Code [i.e., the APA], it is within the ALJ’s discretion to
control the testimony of witnesses,” that is, it is “encompassed by the general
grant of power under Government Code section 11512, subdivision (b) to
‘exercise all powers related to the conduct of the hearing.’ ”
The Board’s fallback argument is that the power to exclude ought to be
implied as a common sense necessity.
From the premise that an administrative hearing “has many of the
same trappings as a regular civil proceeding” (Rich Vision Centers, Inc. v.
Board of Medical Examiners (1983) 144 Cal.App.3d 110, 115 (Rich Vision
Centers)), the Board submits that “[t]hese ‘trappings’ cannot possibly all be
included in statutes, as the Superior Court’s order would seemingly have.
There are a myriad of judicial tasks ALJs do, on a daily basis in the
9
performance of their duties, to ensure fair administrative hearings that are
not specifically spelled out in statute.” “As a matter of common sense, the
[APA] cannot detail every step of the hearing process, or every decision an
ALJ may be called upon to make over the course of the proceeding.”
Because “trial court judges have the discretion to issue evidence
preclusion orders” (citing Peat, Marwick, Mitchell & Co. v. Superior Court
(1988) 200 Cal.App.3d 272, 286–287 [“a California trial court has the
inherent power to preclude evidence to cure abuses or overreaching . . . and
[does] not need a specific statutory authorization to prevent injustice by
excluding certain evidence”]), the Attorney General reasons that it would be
anomalous to deny the same power to ALJs, thereby depriving them of a
“basic power to ensure that all parties receive a fair trial.”
The Attorney General argues that we should accept this implied power
of ALJs as analogous to the powers exercised by federal ALJs, and to “the
authority of a trial judge to exclude evidence, including expert testimony, to
protect the integrity of the process . . . .” “In exercising this authority, trial
courts regularly exercise their basic power to insure that all parties receive a
fair trial by precluding evidence.”
Following completion of briefing, a different deputy attorney general
took over representation of the Board. During the course of oral argument, it
became apparent that many of the arguments being advanced were
materially different from those made by the Board’s initial counsel in the
briefs. Substitute counsel candidly conceded that certain of his arguments
were not made in the trial court. This manner of presenting arguments is
disfavored and generally not allowed. (E.g., Johnson v. Greenelsh (2009) 47
Cal.4th 598, 603; Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th
463, 469; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, p. 458.) The
10
rule is based on the principle of fairness—neither the opposing party nor the
trial court should be responsible for an issue neither ever considered. As we
stated many years ago: “When a question is raised in this manner by an
appellant to defeat a judgment there is greater reason why it should be
disregarded than when it is raised by the respondent to support the
presumption of the validity of the judgment.” (In re Estate of Davis (1940) 38
Cal.App.2d 579, 597.) We believe it appropriate to apply this principle here.
Accordingly, we address only those points brought to the attention of the trial
court and advanced in the Board’s opening brief.
Preliminary Comments
As with civil malpractice actions, disciplinary proceedings against a
physician or podiatrist for negligence will commonly require consideration of
the profession’s standard of care, requiring testimony from experts. (See,
e.g., Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th
992, 1001 [“ ‘ “The standard of care against which the acts of a physician are
to be measured is a matter peculiarly within the knowledge of experts . . .
and can only be proved by their testimony” ’ ”].) The APA makes special
provision for this need with the Medical Quality Hearing Panel, which is
comprised of ALJs who have medical training. (See Gov. Code, §§ 11371-
11373; Bus. & Prof. Code, § 2335, subd. (a).) But the APA is not the entire
statutory universe. Almost but not entirely, for it is a provision in the
Business and Professions Code that governs disclosure of experts expected to
testify.
Business and Professions Code section 2334 provides that “no expert
testimony shall be permitted” unless specified information is exchanged 30
days prior to the scheduled start of the hearing. It was made clear to the
parties from the start that the requirements of this statute applied and would
11
be enforced, which it was, with the exclusion of Dr. Teasdale, a ruling neither
party contested in the trial court. The Board’s disclosure of its expert,
Dr. Mednick, provided the information specified, as well as noting it was per
“Bus. & Prof. Code, § 2334.” Dr. Redko made the required disclosure for
Dr. Chang (including an attached copy of “Dr. Chang’s report”), which was
never challenged by the Board as either untimely or inadequate. Counsel for
the Board re-affirmed at oral argument there is no claim that the information
required of Dr. Chang by that statute was not provided.
A point of terminology is crucial and must be constantly kept in mind.
When we refer to “an ALJ” or “the ALJ,” we will mean the person who
actually conducts the adjudicatory hearing, hears witnesses and received
evidence, and who prepares findings, conclusions, and a recommended
disposition for the Board. As will be seen, this individual is commonly
designated in statutes as “the presiding officer.” However, when we refer to
“the presiding ALJ,” we do not mean the ALJ who presides at the
adjudicatory hearing. “Presiding ALJ,” which is not a statutory term, is the
individual who is an ALJ but who “presides” over the internal operations of
the regional office of administrative hearings. The duties of a presiding ALJ
resemble those of an executive office manager.5
5 The job description for the presiding ALJ is that he or she “supervises
[ALJs] and support staff in one of the regional offices of the Office of
Administrative Hearings (OAH); participates in policy decisions as a member
of an office management team; performs various administrative tasks
associated with case management”; “assigns cases to ALJs and oversees case
calendar for the regional office”; “handles continuance requests and other
procedural issues relating to cases”; “and as administrative responsibilities
permit, hears and decides cases . . . including those which are most complex
or sensitive.” (Presiding Administrative Law Judge, Office of Administrative
Hearings, Cal. State Personnel Bd. Specification,
<https://www.calhr.ca.gov/state-hr-professionals/Pages/6133.aspx> [as of
Mar. 30, 2021].) By regulation, the presiding ALJ is to decide all motions
12
The Merits
The language invoked in the trial court’s decision, that
“ ‘administrative agencies only have the power conferred on them by
statute,’ ” is no mere maxim, but a bedrock doctrine. The classic formulation
was by Justice Sullivan: “It is settled principle that administrative agencies
have only such powers as have been conferred upon them, expressly or by
implication. [Citations.] An administrative agency, therefore, must act
within the powers conferred upon by law and may not validly act in excess of
such powers.” (Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 103–104.)
However, the word “implication” suggests that the doctrine is not
without a measure of flexibility. Our Supreme Court has also stated: “It is
well settled in this state that governmental officials may exercise such
additional powers as are necessary for the due and efficient administration of
powers expressly granted by statute, or as may fairly be implied from the
statute granting the powers.”6 (Dickey v. Raisin Proration Zone No. 1 (1944)
24 Cal.2d 796, 810.)
The APA has provisions addressing discovery prior to the adjudicatory
hearing conducted by an ALJ. They begin with the broad statement that
“The provisions of Section 11507.6 provide the exclusive right to and method
prior to the adjudicatory hearing. (Cal. Code Regs., tit. 1, § 1022, subd. (a)
[“Motions made prior to the Hearing shall be directed to the presiding judge.
Thereafter, Motions shall be directed to the ALJ assigned to the Hearing”].)
6Although this language did not expressly include administrative
agencies, this court and others have so extended it. (E.g., Leslie Salt Co. v.
San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605. 617;
Duarte & Witting, Inc. v. New Motor Vehicle Bd. (2002) 104 Cal,.App.4th 626
636; Rich Vision Centers, supra, 144 Cal.App.3d at p, 114.)
13
of discovery as to any proceeding governed by this chapter.”7 (Gov. Code,
§ 11507.5.) The referenced section specifies the scope of discovery, including
“statements,” “writings,” and “reports.” It declares that each party “is
entitled to (1) obtain the names and addresses of witnesses . . . including . . .
those intended to be called to testify at the hearing, and (2) inspect and make
copy of any” of various specified “statements,” “writings,” and “investigative
reports.” Among the “statements” to be made available to the other party are
“[s]tatements of witnesses . . . proposed to be called by the party.” (Gov.
Code, § 11507.6, subd. (c).)
These documents may be obtained by a subpoena duces tecum. (See
Gov. Code, §§ 11450.05, 11450.10, 11450.20; Cal. Code Regs., tit. 1, § 1024,
subd. (a).) The recipient may, as Dr. Redko did, “object to its terms by . . . a
motion to quash,” or “a motion for a protective order.” (Gov. Code,
§ 11450.30, subd. (a).)
The APA has three enforcement mechanisms if requested discovery is
denied.
First, “Any party claiming the [other] party’s request for discovery
pursuant to Section 11507.6 has not been complied with may serve and file
with the [ALJ] a motion to compel discovery[.]” (Gov. Code, § 11507.7,
subd. (a).) “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
7 This exclusivity comes with a caveat. Dr. Redko apparently believes
that, with the exception of Business and Professions Code section 2334,
everything needed to conduct an adjudicative hearing is to be found in the
APA. This is certainly not true with respect to discovery. A leading treatise
has two pages listing “discovery provisions outside [the] APA.” (Asimow et
al., Cal. Practice Guide: Administrative Law (The Rutter Group 2019) ¶
7:160, pp. 7-30 to 7-31.)
14
is privileged against disclosure [one of the grounds asserted by Dr. Redko]
under those provisions, the [ALJ] 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.” (Id., subd. (d).)
Second, the party denied proper discovery may also apply to the
“presiding officer” for monetary sanctions to compensate “reasonable
expenses, including attorney’s fees, incurred . . . as a result of bad faith
actions or tactics that are frivolous . . . as defined in Section 128.5 of the Code
of Civil Procedure.” (Gov. Code, § 11455.30, subd. (a); see Cal. Code Regs.,
tit. 1, § 1040.)
Third, there is “the contempt sanction” for specified acts or omissions,
including “[d]isobedience of or resistance to a lawful order,” “unlawful
interference with the process or proceedings of the agency,” and “[f]ailure or
refusal, without substantial justification, to comply with a deposition order,
discovery request, subpoena, or other order of the presiding officer[.]” (Gov.
Code, § 11455.10, subds. (a), (c), (e).) The process begins with the “presiding
officer or agency head” certifying “the facts that justify the contempt sanction
against a person in the superior court in and for the county where the
proceeding is conducted.” (Gov. Code, § 11455.20, subd. (a).) “Upon service of
the order and a copy of the certified statement, the court has jurisdiction of
the matter” (ibid.), where “[t]he same proceedings shall be had, the same
penalties may be imposed,[8] and the person charged may purge the
contempt . . . .” (Id., subd. (b).)
The trial court concluded witness exclusion as a discovery sanction
could not be recognized in the absence of an authorizing provision in the
8The penalties for a civil contempt are a fine of up to $1,000,
imprisonment for up to five days, or both. (Code Civ. Proc., § 1218, subd. (a).)
15
APA. The Board decries the trial court’s reasoning as “narrow” and
“extremely hyper-technical.” It urges us in the name of common sense to
accept that the APA “cannot detail every step of the hearing process, or every
decision an ALJ may be called upon to make over the course of the
proceeding.” This is undoubtedly sensible as a general proposition, but it
ignores an unusual factor, thus resulting in a mischaracterization of what
actually occurred here.
The Board’s resort to the language of Government Code section 11512
concerning an ALJ’s authority to “exercise all powers relating to the conduct
of the hearing,” which includes ruling “on the admission and exclusion of
evidence,” is unavailing. The language is clearly meant to cover the actual
conduct of an adjudicative hearing that is already under way before an ALJ.9
What happened here was nothing like that, but more in the nature of a
9“(a) Every hearing in a contested case shall be presided over by an
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. . . . [¶] . . . [¶]
“(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.” (Gov. Code, § 11512, italics added.)
In 1958, this court noted that “hearing” in this context means
proceedings where evidence is taken or questions of law presented. (Yanke v.
State Dept. Public Health (1958) 162 Cal.App.2d 600, 603.) The term does not
encompass “the entire adjudicative process.” (Cameron v. Cozens (1973) 30
Cal.App.3d 887, 890.) “Hearing,” therefore, would not necessarily reach the
pre-hearing ruling made by the presiding ALJ, as the Board clearly assumes.
16
motion in limine made, not to the ALJ who would conduct the hearing, but to
the presiding ALJ. In these circumstances, the presiding ALJ’s ruling prior
to the start of the actual adjudicative hearing cannot be brought within the
plain language of Government Code section 11512. 10
According to the strict language of the APA statutes, the discovery
related disputes prior to the actual adjudicative hearing are to be decided
either by “the presiding officer” (Gov. Code, §§ 11450.30, 11507.7), or “the
administrative law judge” (Gov. Code, § 11507.7). Ordinarily the two would
be deemed synonymous because “presiding officer” is statutorily defined as
“the . . . administrative law judge . . . who presides in an adjudicative
proceeding.” (Gov. Code, § 11405.80.) Obviously, the literal import of this
10 A leading practice guide states: “If a party refuses to comply with a
subpoena duces tecum for information related to the anticipated testimony of
that witness, the ALJ has inherent authority as the hearing officer to grant
the opposing party’s motion to exclude testimony by that witness. Govt C
§ 11512(b) (authorizing ALJ to ‘exercise all powers relating to the conduct of
the hearing’). See Govt C § 11450.30(b) (permitting ALJ to resolve objections
to subpoenas). Exclusion of witness testimony is a more common remedy for
a party’s disobedience of a subpoena duces tecum than imposition of contempt
or monetary sanctions.” (Cal. Administrative Hearing Practice (Cont.Ed.Bar
2019) § 5.29A, p. 5-18; see also id., § 5.13, p. 5-10 [“the remedy for refusal of
discovery is a motion to compel discovery filed with the ALJ. Govt C
§ 11507.7. The remedy for refusal to obey the ALJ’s order is a motion for
sanctions in front of the ALJ or a request that the ALJ certify the matter to
the superior court. A motion to exclude witness proffered by a noncompliant
party is another more common remedy . . . see § 5.29A”].) The language used
in these excerpts, and their positioning (the preceding sections are “The
Hearing” (id., § 5.28) and “[The] ALJ’s Decision” (id., § 5.29)), clearly indicate
that they are addressed to the ALJ who is actually going to preside at the
adjudicative hearing. As already indicated, we are considering the
exclusionary power exercised in the very different context of a pre-hearing
dispute. The nature and extent of the powers under Government Code
section 11512 of an ALJ actually conducting an adjudicative hearing are not
before us, and we express no opinion on them.
17
language might prove impractical because no decision could be taken until
the ALJ had commenced the adjudicatory hearing. Everyday reality may
require an earlier decision. A dispute can arise before a specialized ALJ from
the Medical Quality Hearing Panel has been assigned. Common sense may
require that some decisions have to be made by someone other than the
“presiding officer.” Submitting pre-hearing disputes to the presiding ALJ
may not be expressly and affirmatively codified in the APA, but it is an
eminently sensible pendente lite mechanism and is covered by regulation.
(Cal. Code Regs., tit. 1, § 1040, quoted at fn. 6, ante.) Neither Dr. Redko nor
the Board suggest that discovery disputes are excluded.
As to such disputes, the APA is very clear about the remedies available.
The Board could have made a motion to compel discovery. Or the Board
could have argued that because Dr. Redko’s objections to the Board’s
subpoena had already been rejected, his continued refusal to comply with the
subpoena was in bad faith, thus warranting a monetary sanction. Or the
Board could have asked to have the process of the contempt sanction
commenced. The Board elected to ignore these remedies. Instead, it went to
the presiding ALJ with the motion asking for a sanction that is not
statutorily authorized.
The question then shifts to whether the power to exclude testimony as
a discovery sanction should be recognized as an implied power of the
adjudicative agency or ALJ? We think not.
Implied powers are recognized only when there is no precise statute
covering the point. For example, in Rich Vision Centers, supra, 144
Cal.App.3d 110, there was no statute specifically authorizing the regulatory
agency the power to negotiate a settlement of pending disciplinary actions or
impose conditions to that settlement. The Court of Appeal, however, held
18
that the power to settle disputes was implicit in, and consistent with, the
statutory scheme giving the agency the responsibility for the issuance,
renewal, or revocation of a license to practice: “Permitting the Board to settle
disputes over present or continuing fitness for a license helps to achieve the
Legislature’s purpose. Settlement negotiations provide the Board greater
flexibility. Importantly, settlements provide the means to condition the
issuance or renewal of licenses in order best to protect the public. Licensing
can be tailored to suit the particular situation.” (Id. at p. 115.)
The situation here is entirely different. The subject is discovery and
the resolution of discovery disputes. As already shown, the APA is not silent
on either. As already mentioned, the APA has explicit language that its
statutes “provide the exclusive right to and method of discovery as to any
proceeding governed by this chapter.” (Gov. Code, § 11507.5, italics added,
referring to Gov. Code, § 11507.6.) The italicized language encompasses
sanctions for failing to make discovery. This language cannot be construed as
other than a prohibition of extra-statutory augmentation. In these
circumstances, we cannot imply the power the Board desires, particularly
when there are statutory remedies that were not tried and found wanting.
Another reason for not implying an additional discovery sanction is
that there is a considerable basis for concluding the Legislature does not
want the Board to have it.
The trial court noted the provision in the Code of Civil Procedure
authorizing exclusion of a witness’s testimony from a civil trial.11 The
11 The trial court’s reference is instructive for a different, but highly,
relevant point. Civil litigation discovery sanctions are to be applied
incrementally, increasing in severity only as needed to ensure compliance
with an existing order for discovery. (E.g., J.W. v. Watchtower Bible & Tract
Society of New York, Inc. (2018) 29 Cal.App.5th 1142, 1169; Doppes v. Bentley
19
language of Business and Professions Code section 2334 provides another
example, but applied to administrative proceedings. Dr. Redko’s counsel
points to other examples where the Legislature has authorized or delegated
the power to resolve and sanctions to administrative officials or agencies.
(See Veh. Code, § 3050.2, subd. (b) [“Compliance with discovery
procedures . . . may be enforced by application to the executive director” of
the New Motor Vehicle Board]; Lab. Code, § 148.7 [authorizing Occupational
Safety and Health Appeals Board to adopt “rules of practice and procedure”];
Cal. Code Regs., tit. 8, § 372.7 [“The [ALJ] or the Appeals Board may impose
sanctions on a party who fails to respond to an authorized request for
discovery” including “prohibiting the introduction of designated matters into
evidence by the abusing party” and “any other order as the [ALJ] or the
Appeals Board may deem appropriate under the circumstances”].) There are
others. (See Rules of Com. on Jud. Performance, rule 122(h) [“If any party
fails to comply with a discovery request as authorized by these procedures,
the items withheld shall be suppressed”]; Rules Proc. of State Bar, rule
5.65(H)(1) [“If any party fails to comply with a discovery request,” the State
Bar Court “may admit the items withheld” or, if the items have been
“admitted into evidence, may be ordered stricken from the record”].)
Indeed, one of the statutes governing how the Board handles
complaints against a person licensed by the Board has a limited evidence
exclusion provision: “Complainants against licensees of the board . . . [¶] . . .
shall be given an opportunity to provide a statement to the deputy attorney
general from the Health Quality Enforcement Section who is assigned the
case. These statements shall not be considered . . . for purposes of
Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) That is clearly not what
happened here, where less drastic sanctions were never tried.
20
adjudicating the case to which statement pertains, but may be considered . . .
after the case is finally adjudicated for purposes if setting generally
applicable policies and standards.” (Bus. & Prof. Code, § 2330, italics added.)
It is thus clear beyond reasonable doubt that the Legislature knows
how to enact statutes with specified consequences—including complete
witness exclusion—for discovery related disputes in differing settings. To
find authorization for that sanction, whether in Government Code section
11512 in particular or the APA as a whole, would transgress a cardinal rule
of statutory construction, that it is not a judicial function to read into statutes
language the Legislature might have used or might have intended. (See, e.g.,
Code Civ. Proc., § 1858; Cornette v. Department of Transportation (2001) 26
Cal.4th 63, 73–74; Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th
985, 993.) In other words, courts do not rewrite statutes.
The Board’s other points involving analogies require only brief
discussion.
Citing Lucia v. Securities & Exchange Com. (2019) ___ U.S. ___ [138
S.Ct. 2044], the Board urges this court to accept the analogy to ALJs in the
federal system. Apart from the obvious distinction that federal ALJs operate
under different statutory schemes, the analogy is unjustifiable because the
scheme at issue in Lucia appears to vest the hearing officer with the
statutory power to impose discovery sanctions (see Lucia, at p. 2049 [“An ALJ
assigned to hear an SEC enforcement action has extensive powers” which
include “supervising discovery . . . and imposing sanctions for ‘[c]ontemptuous
conduct’ or violations of procedural requirements”]), which in any event were
not at issue in that decision; the sole question considered was “whether the
Commission’s ALJs are “Officers of the United States” or simply employees of
the Federal Government.” (Id. at p. 2051.)
21
Analogizing to the superior court fares no better. It is almost enough to
note the world of difference between them. The superior court is a
constitutional office (Cal. Const., art. VI, § 4), and by reason of that status
possesses “ ‘all the inherent and implied powers necessary to properly and
effectively function as a separate department in the scheme of our state
government.’ ” (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45,
58, quoting Brydonjack v. State Bar (1929) 208 Cal. 439, 442.) It exercises an
almost unlimited jurisdiction of law and equity. By contrast, the Board is
purely a creature of statute, its authority extending only to a single
profession.
Moreover, our Supreme Court appears to have a very jaundiced opinion
of attempts to blur the distinctions between judges and administrative
hearing officers. (See American Federation of Labor v. Unemployment Ins.
Appeals Bd. (1996) 13 Cal.4th 1017, 1023 [“we abide by the settled principle
that administrative law judges, like the agencies authorized to appoint them,
may not act as superior court judges, and in excess of their statutory
powers”]; cf. Mileikowsky v. West Hills Hospital & Medical Center (2009)
45 Cal.4th 1259 [physician peer review panel hearing officer lacked statutory
authority to dismiss proceeding for failure to respond to discovery request;
disapproving Mileikowsky Tenet Healthsystem (2005) 128 Cal.App.4th 531,
where Court of Appeal upheld hearing officer dismissal in another peer panel
review for refusal to produce discovery]; see also Mileikowsky, supra, 45
Cal.4th at p. 1278 (dis. opn. of Kennard, J.) [“To not allow a hearing officer
presiding over a peer review proceeding to impose a termination sanction for
a party’s egregious abuse of the discovery process would undermine the
hearing officer’s ability to control recalcitrant parties and curb flagrant abuse
of the statutory discovery process. . . . Just as a court has the power to order
22
dismissal as a sanction for egregious abuse of the discovery process [citation],
so too should a hearing officer presiding over a peer review proceeding have
the power to impose a termination sanction”].)
The Board argues that this case shows how strict construction will lead
to chaos. This fear is overblown. The APA is not at war with common sense.
As with civil discovery, the APA’s statutes provide for graduated sanctions.
In civil discovery, discovery abuse, even if egregious, does not justify
imposition of nonstatutory sanctions in the absence of violation of court order
compelling response. (See, e.g., New Albertsons, Inc. v. Superior Court (2008)
168 Cal.App.4th 1403, 1428; Trail v. Cornwell (1984) 161 Cal.App.3d 477,
488.) Here, there was no order directing Dr. Redko to furnish the materials
covered by the Board’s subpoena (see fn. 2 and accompanying text, ante).
Nonstatutory remedies cannot supplant statutory measures—available to
both sides—which have not been tried and found wanting. In these
circumstances, we will not leapfrog the APA’s existing scheme of discovery
remedies.
There may well be a sound policy argument to be made for vesting
presiding ALJs with some wider authority to resolve discovery disputes prior
to the commencement of the adjudicative hearing. The obvious point of
comparison is with civil litigation, where discovery are usually resolved
before trial. It is not hard to imagine how an adjudicatory hearing could be
disrupted and thrown into turmoil if the assigned ALJ was suddenly
confronted with making a major decision based on a discovery dispute which
the ALJ had no inkling even existed. Smooth and efficient conduct of
hearings would not result if the ALJ is forced to unravel and resolve issues
collateral to the scheduled topic of the hearing. If the powers currently
provided by the Legislature are inadequate to the task, it is up to the
23
Legislature to augment those powers. The want cannot be supplied by courts
recognizing an implied power the Legislature appears to have consciously
withheld.
CONCLUSION AND DISPOSITION
Administrative mandamus is available “for the purpose of inquiring
into the validity of any final administrative order or decision made as the
result of a proceeding in which by law a hearing is required to be given,
evidence is required to be taken, and discretion in the determination of facts
is vested in the . . . board[.]” (Code Civ. Proc., § 1094.5, subd. (a).) “The
inquiry in such a case shall extend to the questions whether the respondent
has proceeded without, or in excess of, jurisdiction . . . and whether there was
any prejudicial abuse of discretion. Abuse of discretion is established if the
respondent has not proceeded in the manner required by law[.]” (Id., subd.
(b).)
This inquiry “includes whether the agency followed the law.” (Friends
of Outlet Creek v. Mendocino County Air Quality Management Dist. (2017)
11 Cal.App.5th 1235, 1244.) “Acting contrary to specific statutory command
or applying an incorrect legal standard, is accepted as proof of discretion
abused.” (Karuk Tribe of Northern California v. California Regional Water
Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 363,
fn. 25.)
In light of the foregoing, we must hold that the pre-hearing exclusion of
Dr. Chang by the presiding ALJ cannot be justified by reference to
Government Code section 11512, and was statutorily unauthorized.
Exclusion contravened the APA’s sanction scheme because intermediate
statutory mechanisms were not used. Given that those mechanisms were
ignored, we cannot recognize leaping to the severe sanction of a key witness
24
being prevented from testifying for Dr. Redko as an implied power of an
ALJ’s authority under that statute. In these circumstances, the presiding
ALJ’s ruling qualifies as a prejudicial abuse of discretion, justifying issuance
of the writ.
The purported appeal is dismissed. Treating the appeal as a petition
for a writ of mandate, the petition is denied. Dr. Redko shall recover his
costs.
25
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
Podiatric Medical Board of California v. Superior Court of San Francisco;
Redko, RPI (A155260)
26
Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Richard Ulmer, Jr.
Attorneys for Petitioner: Attorney General of California
Xavier Becerra
Gloria L. Castro
Senior Assistant Attorney General
Jane Zack Simon
Supervising Deputy Attorney General
David M. Carr
Deputy Attorney General
Emily L. Brinkman
Deputy Attorney General
No Appearance for Respondent
Attorney for Real Party in Interest: Slote, Links & Boreman
Adam G. Slote
27