The opinion
Filed 4/20/21 Kersten v. Dental Board of Cal. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
TIMOTHY A. KERSTEN, C083524
Plaintiff and Appellant, (Super. Ct. No. 183875)
v.
DENTAL BOARD OF CALIFORNIA et al.,
Defendants and Respondents.
Business and Professions Code1 section 494.5 requires that a state governmental
licensing entity refuse to renew a license and suspend a license if a licensee’s name is
included on the Franchise Tax Board’s (FTB) semiannual certified list of the 500 largest
tax delinquencies (Top 500 list) unless the licensing entity has received a release from
FTB. (§ 494.5, subds. (a), (b)(1), (f)(1).)
Petitioner Timothy A. Kersten’s name appeared on FTB’s certified Top 500 list in
October 2013. Kersten failed to obtain a release, and respondent California Department
of Motor Vehicles (DMV) refused to renew his driver’s license, and respondent
California Dental Board (Dental Board) suspended his dental license pursuant to section
1 Undesignated statutory references are to the Business and Professions Code.
1
494.5. Although Kersten’s name did not appear on FTB’s April 2014 Top 500 list or any
subsequent list, respondents did not reinstate or renew his licenses because Kersten failed
to obtain a release from FTB.
Kersten, in pro. per., filed a petition for writ of mandate seeking to compel
respondents to reinstate and renew his licenses. The trial court granted respondents’
motion for judgment on the pleadings as to Kersten’s first amended petition for writ of
mandate without leave to amend and entered judgment in respondents’ favor.2 The trial
court found that “[u]ntil such time as a release is issued, [r]espondents do not have a
clear, present ministerial duty to act.”
Kersten, in pro. per., appeals, contending that the absence of his name on the April
2014 Top 500 list imposed a duty on respondents to immediately reinstate and renew his
licenses notwithstanding his failure to obtain a release. Alternatively, he asserts that the
trial court abused its discretion in denying his request to file a second amended petition
for writ of mandate alleging that FTB removed his name from the Top 500 list after it
determined his tax debt was uncollectable pursuant to subdivision (f) of section 19195 of
the Revenue and Taxation Code. Kersten contends that the removal of his name pursuant
to subdivision (f) of section 19195 of the Revenue and Taxation Code imposed a duty on
respondents to immediately reinstate and renew his licenses, notwithstanding his failure
to obtain a release. Finally, Kersten claims for the first time on appeal that respondents’
2 Kersten’s motion for leave to file a first amended petition was pending when
respondents filed their motion for judgment on the pleadings; thus, respondents directed
their motion to both the original and proposed first amended petitions. While the motion
was pending, the trial court granted Kersten leave to file his first amended petition,
ordered that it be filed, and deemed respondents’ answers to the original petition to be
answers to the amended petition as well. The first amended petition supersedes the
original petition (State Compensation Ins. Fund. v. Superior Court (2010) 184
Cal.App.4th 1124, 1130-1131), and we shall limit our consideration to the allegations in
the first amended petition.
2
failure to reinstate and renew his licenses violated his constitutional right to pursue his
profession.
We shall conclude that respondents do not have a duty to reinstate or renew
Kersten’s licenses absent a release from FTB, the trial court properly granted
respondents’ motion for judgment on the pleadings without leave to amend, and
Kersten’s constitutional claim is barred because he failed to raise it below. Accordingly,
we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Statutory Scheme
Effective January 1, 2007, the Legislature enacted section 19195 of the Revenue
and Taxation Code, which required FTB “make available as a matter of public record
each calendar year a list of the 250 largest tax delinquencies in excess of one hundred
thousand dollars ($100,000) . . . as of December 31 of the preceding year.” (Rev. & Tax.
Code, § 19195, former subd. (a); Stats 2006, ch. 716, § 2.) That section further provided
then as it does now, “For purposes of compiling the list, a tax delinquency means the total
amount owed by a taxpayer to the State of California for which a notice of state tax lien
has been recorded in any county recorder’s office in this state.” (Rev. & Tax. Code, §
19195, subd. (a).) “[A] tax delinquency does not include any of the following and may
not be included on the list: [¶] (1) A delinquency for which payment arrangements have
been agreed to by both the taxpayer and the Franchise Tax Board and the taxpayer is in
compliance with the arrangement. [¶] (2) A delinquency for which the taxpayer has filed
for bankruptcy protection pursuant to Title 11 of the United States Code. [¶] (3) A
delinquency for which the person or persons liable for the tax have contacted the
Franchise Tax Board and for which resolution” has been arranged. (Rev. & Tax. Code, §
19195, subd. (b).)
As for taxpayers whose names ultimately are included on the list, subdivision (f)
of section 19195 of the Revenue and Taxation Code stated then, as it does now, “As
3
promptly as feasible, but no later than five business days from the occurrence of any of
the following, the Franchise Tax Board shall remove that taxpayer’s name from the list of
tax delinquencies: [¶] (1) Tax delinquencies for which the person liable for the tax has
contacted the Franchise Tax Board and resolution of the delinquency has been arranged.
[¶] (2) Tax delinquencies for which the Franchise Tax Board has verified that an active
bankruptcy proceeding has been initiated. [¶] (3) Tax delinquencies for which the
Franchise Tax Board has verified that a bankruptcy proceeding has been completed and
there are no assets available with which to pay the delinquent amount or amounts. [¶] (4)
Tax delinquencies that the Franchise Tax Board has determined to be uncollectible.”
(Rev. & Tax. Code, § 19195, subd. (f).)
In 2011, the Legislature enacted and the Governor signed Assembly Bill No. 1424
(Assembly Bill 1424), which gave FTB additional authority to collect the full amount
owed by the most delinquent taxpayers. (Stats. 2011, ch. 455.) According to the bill’s
author, “As of May 2011, the top 250 delinquent tax payers owe[d] more than $180
million dollars in delinquent personal income and business taxes, with individual debts
ranging from $300,000 to over $14 million.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 1424 (2011-2012 Reg. Sess.) as
amended Aug. 31, 2011.) Among other things, Assembly Bill 1424 amended section
19195 of the Revenue and Taxation Code and section 31 of the Business and Professions
Code, and added section 494.5 to the Business and Professions Code. (Stats. 2011, ch.
455, § 11.) Subdivision (a) of section 19195 of the Revenue and Taxation Code was
amended to expand the list of the largest tax deficiencies over $100,000 from the top 250
to the top 500 and to require that FTB make the list available as a matter of public record
at least twice each calendar year. (Rev. & Tax. Code, § 19195, subd. (a), italics added.)
4
The other subdivisions of section 19195 of the Revenue and Taxation Code quoted above
remained unchanged, with one limited exception not relevant here.3
In addition to amending section 19195 of the Revenue and Taxation Code,
Assembly Bill 1424 added subdivision (d) to section 31 of the Business and Professions
Code. (Stats. 2011, ch. 455, § 1.) It provides, “Each licensee or applicant whose name
appears on [the Top 500 List] shall be subject to Section 494.5.”
Finally, Assembly Bill 1424 added section 494.5 to the Business and Professions
Code. (Stats. 2011, ch. 455, § 3.) It provides that subject to certain specified exceptions
not relevant here, “a state governmental licensing entity shall refuse to issue, reactivate,
reinstate, or renew a license and shall suspend a license if a licensee’s name is included
on a certified list.” (§ 494.5, subd. (a).) “Certified list” means the list provided by FTB
of persons whose names appear on the Top 500 list pursuant to section 19195 of the
Revenue and Taxation Code. (§ 494.5, subd. (b)(1).) FTB must submit a certified list to
every state governmental licensing entity at least twice a year (§ 494.5, subd. (c)), and
each licensing entity must determine whether a licensee is on the most recent certified
list. (§ 494.5, subd. (e)(1).) If a licensee is on the most recent list, the licensing entity
must immediately notify the licensee of its intent to suspend or withhold renewal of the
license. (§ 494.5, subd. (e)(2).) A licensing entity “shall refuse to issue or shall suspend
a license . . . no sooner than 90 days and no later than 120 days of the mailing of the
preliminary notice . . ., unless the state governmental licensing entity has received a
release pursuant to subdivision (h).” (§ 494.5, subd. (f)(1).) The process described in
3 When section 19195 of the Revenue and Taxation Code was enacted, subdivision
(b)(3) provided that a tax delinquency does not include “[a] delinquency for which the
person or persons liable for the tax have contacted the Franchise Tax Board and for
which resolution of the tax delinquency has not been rejected by the Franchise Tax
Board.” (Stats. 2006, ch. 716, § 2, italics added.) In 2011, it was amended and the
phrase “has not been rejected” was replaced with “has been accepted.” (Stats. 2011, ch.
455, § 11.)
5
subdivision (h) is “the sole administrative remedy for contesting . . . the denial or
suspension of a license under” section 494.5 (§ 494.5, subd. (m)), and “any license
suspended under [section 494.5] will remain suspended until the state governmental
licensing entity receives a release along with applications and fees, if applicable, to
reinstate the license (§ 494.5, subd. (g)(2)).
Pursuant to subdivision (h) of section 494.5, a licensee who “wishes to challenge
the submission of their name on a certified list . . . shall make a timely written request for
release” to FTB, and FTB “shall immediately send a release to the appropriate state
governmental licensing entity and the . . . licensee” if the licensee “has complied with the
tax obligation, either by payment of the unpaid taxes or entry into an installment payment
agreement, as described in Section 6832 or 19008 of the Revenue and Taxation Code,” or
“is unable to pay the outstanding tax obligation due to a current financial hardship.”
B. Kersten’s Inclusion on FTB’s Top 500 List
Kersten’s name appeared on the Top 500 list in October 2013, and FTB submitted
a certified version of that list to state licensing entities, including Dental Board and
DMV, that same month.
In October or early November 2013, Dental Board determined that Kersten’s name
appeared on the most recent certified Top 500 list and “commenced the procedure to
suspend” Kersten’s dental license as outlined in section 494.5.
On November 6, 2013, the Department of Consumer Affairs (DCA), the
governmental entity under which the Dental Board operates, sent Kersten a “90 DAY
NOTICE OF INTENT TO SUSPEND LICENSE,” advising Kersten that “[p]ursuant to
. . . section 494.5, effective February 16, 2014, your [dental] license will be suspended or
will not be renewed unless a release is received from FTB.” (§ 494.5, subds. (e)(2),
(g)(2).)
6
On November 14, 2013, DMV refused to renew Kersten’s driver’s license because
his name appeared on the certified Top 500 list and instead issued him a temporary
license that was set to expire in 90 days. (§ 494.5, subds. (e)(2), (g).)
On November 28, 2013, Kersten submitted a “PROPOSAL TO DISCHARGE
ADMINISTRATIVE TAX CLAIMS” to FTB. FTB construed the proposal as a request
for release and denied it because Kersten had not satisfied any of the grounds for
obtaining a release. (§ 494.5, subd. (h).)
On February 19, 2014, DCA notified Kersten that his dental license was
suspended effective February 16, 2014, pursuant to section 494.5 (§ 494.5, subd. (f)) and
advised him that “[t]his suspension will remain in effect until we receive a valid release
from [FTB] certifying that you are in compliance with an unpaid tax delinquency . . . .”
In April 2014, FTB published another Top 500 list. Kersten’s name was not
included on this list. FTB submitted the certified version of this list to state licensing
entities, including Dental Board and DMV. Kersten did not learn that his name was not
included on the April 2014 Top 500 list until December 15, 2014.
On December 16, 2014, Kersten sent a “DEMAND FOR IMMEDIATE
REINSTATEMENT OF LICENSE” to DCA and the Dental Board, informing them that
his name had “been removed” from the Top 500 list and asserting that it was thus
“incumbent upon the Dental Board to immediately reinstate my license.” On December
19, 2014, he sent a similar demand letter to DMV. DCA responded on January 6, 2015,
explaining, “To date, DCA has not received a release from [FTB] and is unable to
reinstate your license. The [Dental] Board cannot override the DCA and reinstate the
license. [¶] You must contact [FTB] to resolve this issue. [¶] . . . [¶] Once the DCA has
7
received the release, your license will be reinstated.” DMV did not respond to Kersten’s
demand.4
C. The Proceedings Below
On December 21, 2015, Kersten filed a petition for writ of mandate seeking to
compel Dental Board to reinstate his dental license and DMV to renew his driver’s
license. In the operative first amended petition, Kersten alleges that under subdivision
(d) of section 31, he is no longer subject to section 494.5 because his name no longer
appears on “any current list of tax delinquencies,” and as a result, respondents have a
duty to reinstate and renew his licenses.
Respondents moved for judgment on the pleadings (Code of Civ. Proc., §§ 438,
1094) on the ground that the first amended petition failed to present a triable issue of fact.
According to respondents, the first amended petition is premised on respondents “having
a duty to revoke the suspension of [Kersten’s] licenses because he is not included on the
most recent list of top-500 tax delinquencies,” and respondents “have no such duty until
and unless [FTB] issues a release.”
The trial court granted respondents’ motion for judgment on the pleadings and
entered judgment in respondents’ favor. The trial court explained that a writ of mandate
pursuant to section 1085 “permits a Court to ‘compel the performance of an act which the
law specifically enjoins,’ ” and found that respondents “are not presently under a duty to
reinstate [Kersten’s] licenses” because he has yet to obtain a release from FTB.
According to the trial court, “Only the FTB can provide a release and they are not a
4 Kersten’s request for judicial notice is denied as irrelevant. In addition, Kersten
offers no authority for judicially noticing portions of FTB’s Collection Procedures
Manual (Evid. Code, §§ 452, 459), which were not presented below. (Brosterhous v.
State Bar of California (1995) 12 Cal.4th 315, 325-326 [“An appellate court may
properly decline to take judicial notice under Evidence Code sections 452 and 459 of a
matter which should have been presented to the trial court for its consideration in the first
instance.”].)
8
named party.” The trial court rejected Kersten’s argument that section 494.5 only applies
to individuals who appear on the current certified Top 500 list, reasoning that such an
“interpretation would belie the obvious legislative intent of the statutory scheme,” which
is “to suspend the driver’s license and professional licenses of individuals that owe back
taxes in order to compel them to pay these taxes.”
DISCUSSION
I
Standard of Review
This is an action under section 1085 of the Code of Civil Procedure, which
provides in pertinent part: “A writ of mandate may be issued by any court to any inferior
tribunal, corporation, board, or person, to compel the performance of an act which the
law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the
admission of a party to the use and enjoyment of a right or office to which the party is
entitled, and from which the party is unlawfully precluded by that inferior tribunal,
corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).) “Two basic
requirements are essential to the issuance of the writ: (1) A clear, present and usually
ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and
beneficial right in the petitioner to the performance of that duty [citation]. [Citation.]”
(People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491.) “A
ministerial act is one that a public functionary ‘ “ ‘is required to perform in a prescribed
manner in obedience to the mandate of legal authority,’ ” ’ without regard to his or her
own judgment or opinion concerning the propriety of such act. [Citation.] ‘Thus,
“[w]here a statute or ordinance clearly defines the specific duties or course of conduct
that a governing body must take, that course of conduct becomes mandatory and
eliminates any element of discretion.” ’ [Citation.]” (Ellena v. Department of Insurance
(2014) 230 Cal.App.4th 198, 205.)
9
The trial court granted judgment on the pleadings in respondents’ favor. “ ‘A
judgment on the pleadings in favor of the defendant is appropriate when the complaint
fails to allege facts sufficient to state a cause of action. [Citation.] A motion for
judgment on the pleadings is equivalent to a demurrer and is governed by the same de
novo standard of review.’ [Citation.] ‘All properly pleaded, material facts are deemed
true, but not contentions, deductions, or conclusions of fact or law . . . .’ [Citation.]
Courts may consider judicially noticeable matters in the motion as well.” (People ex rel.
Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777.)
Finally, this case involves issues of statutory construction. “Statutory construction
is a question of law that we review de novo.” (Syngenta Crop Protection, Inc. v. Helliker
(2006) 138 Cal.App.4th 1135, 1159.) “Well-established rules of statutory construction
require us to ascertain the intent of the enacting legislative body so that we may adopt the
construction that best effectuates the purpose of the law. [Citation.] We first examine
the words themselves because the statutory language is generally the most reliable
indicator of legislative intent. [Citation.] The words of the statute should be given their
ordinary and usual meaning and should be construed in their statutory context.
[Citations.]” (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715.)
“An individual statute must be construed in the context of the comprehensive statutory
scheme of which it is a part. Statutes or statutory sections relating to the same subject
must be harmonized, both internally and with each other, to the extent possible.”
(Berkeley Center for Independent Living v. Coyle (1996) 42 Cal.App.4th 874, 878.)5
5 Kersten’s reliance on statements made by an FTB disclosure specialist in response
to a request under the Information Practices Act (Civ. Code, § 1798 et seq.) in support of
his arguments concerning the meaning of the statutes at issue is misplaced. The
statements were made in the context of an information act request, the statements are
vague, and it is the Legislature’s intent that is at issue, not that of FTB or its employees.
10
II
Respondents Do Not Have a Duty to Renew or Reinstate Kersten’s Licenses Until They
Receive a Release from FTB
Kersten contends that the trial court erred in determining that respondents do not
have a duty to renew or reinstate his licenses because he has not obtained a release and in
granting judgment on the pleadings on that basis. While Kersten does not dispute that
respondents legitimately suspended his dental license and refused to renew his driver’s
license under section 494.5 because his name appeared on the certified October 2013 Top
500 list and he did not obtain a release, he claims that once his name no longer appeared
on the current Top 500 list, he was no longer subject to section 494.5 and respondents
had a duty to immediately reinstate and renew his licenses. We are not persuaded.
In support of his claim, Kersten points to subdivision (d) of section 31, which
states: “Each licensee or applicant whose name appears on a list of the 500 largest tax
delinquencies pursuant to Section . . . 19195 . . . shall be subject to Section 494.5.”
Kersten asserts that because his name did not appear on the April 2014 Top 500 list (or
any subsequent list), he is no longer subject to section 494.5, and respondents had a duty
to immediately reinstate and renew his licenses.
Subdivision (d) of section 31 must be read in conjunction with section 494.5, to
which it refers. Section 494.5 makes plain that once a licensing entity suspends or
refuses to renew a license based on a licensee’s inclusion on the most recent Top 500 list,
the license will not be reinstated or renewed until the licensing entity receives a release
from FTB. (§ 494.5, subds. (h), (j).) Indeed, subdivision (g)(2) of section 494.5 requires
that the preliminary notice “inform the licensee that any license suspended under this
section will remain suspended until the state governmental licensing entity receives a
release,” and Kersten was so informed. Had the Legislature intended to require a
licensing entity immediately reinstate or renew a suspended license in the event the
licensee’s name is not included on a subsequent Top 500 list without first having received
a release from FTB, it certainly would have so provided. Instead, section 494.5 provides
11
just the opposite. Subdivision (m) of that section provides, “The process described in
subdivision (h) shall constitute the sole administrate remedy for contesting the . . . denial
or suspension of a license under this section.” (Italics added.) Considering these
provisions together, then, we conclude that Kersten still needed to obtain a release from
FTB to have his license reinstated or renewed, even though his name was not included on
the Top 500 list after 2013. Kersten’s claim that the omission of his name from the April
2014 Top 500 list alone created a duty on the part of respondents to renew or reinstate his
licenses fails.
Kersten also contends that FTB’s removal of a name from its Top 500 list pursuant
to subdivision (f) of Revenue and Taxation Code section 19195 “nullifies suspension of
license imposed pursuant to [section] 494.5,” thereby obligating a licensing entity to
immediately reinstate or renew such a license. While Kersten failed to allege that his
name was removed from the Top 500 list in the operative first amended petition, he
contends that the trial court abused its discretion in failing to grant his request to file a
second amended petition that so alleges. As we shall explain, removal pursuant to
subdivision (f) of section 19195 of the Revenue and Taxation Code does not give rise to a
duty on the part of respondents to renew or reinstate his licenses absent a release from
FTB; thus, the trial court did not abuse its discretion in granting the motion for judgment
on the pleadings without leave to amend.
Section 19195 of the Revenue and Taxation Code, including its removal provision,
predates section 494.5 by five years. As detailed above, when it originally was enacted,
section 19195 required that FTB prepare a list of the top 250 tax delinquencies in excess
of $100,000, and it set forth the grounds for a taxpayer’s removal from that list. (Rev. &
Tax. Code, § 19195, former subds. (a), (f); Stats. 2006, ch. 716, § 2.) Section 494.5
expanded the consequences for certain taxpayers whose names appeared on the Top 500
list by requiring licensing entities to “refuse to issue, reactivate, reinstate, or renew a
license and [to] suspend a license if a licensee’s name is included on a certified [Top 500]
12
list.” (§ 494.5, subd. (a).) Significantly, section 494.5 expressly provides that “the sole
administrative remedy for contesting . . . the denial or suspension of a license under
[section 494.5]” is “[t]he process described in subdivision (h),” which sets forth the
process and grounds for obtaining a release from FTB. (§ 494.5, subd. (m).) Thus, while
subdivision (f) of section 19195 of the Revenue and Taxation Code requires FTB remove
a taxpayer’s name from its Top 500 list under certain specified circumstances, should a
taxpayer’s license be suspended or not renewed pursuant to section 494.5, as was the case
here, a licensing entity is precluded from renewing or reinstating the taxpayer’s license
absent a release from FTB. This is made explicit in subdivision (g)(2) of section 494.5,
which requires that the preliminary notice “inform the licensee that any license suspended
under this section will remain suspended until the state governmental licensing entity
receives a release along with applications and fees, if applicable, to reinstate the license.”
(Italics added.) As previously discussed, Kersten was so informed.
Kersten suggests that such an interpretation renders the removal provision set forth
in subdivision (f) of section 19195 of the Revenue and Taxation Code inconsequential.
Not so. Having one’s name removed from the public Top 500 list avoids or at least
lessens the humiliation associated with appearing on the list. Prior to the passage of
Assembly Bill 1424, public shame appears to have been the primary (if not only)
consequence of appearing on the list. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Assem. Bill No. 1418 (2005-2006 Reg. Sess.) as amended Aug. 10,
2006 [“According to the author’s office, this bill will help increase tax administration
compliance as increased publicity will create an added incentive to remit timely payments
to the state and clear overdue accounts. By requiring a public listing, tax scofflaws will
presumably take steps to resolve their delinquencies so they may avoid the shame and
embarrassment of public listing.”].)
Kersten also complains that unlike under the removal provision set forth in
subdivision (f) of section 19195 of the Revenue and Taxation Code, “[t]here is absolutely
13
no provision in [section] 494.5[, subdivision] (h) for issuing any release on the basis of a
federal bankruptcy case.” As he points out, however, there is no need for such a
provision given the “automatic stay” under title 11 United States Code section 362.6
Moreover, as a practical matter, there is no statutory provision obligating FTB to
notify state governmental licensing agencies every time it removes a name from its Top
500 list pursuant to subdivision (f) of section 19195 of the Revenue and Taxation Code.
It is unreasonable to assume that the Legislature intended to impose a duty on licensing
agencies to reinstate or renew a license based on the occurrence of any event (the
taxpayer’s removal from the Top 500 list), when there is no indication that the licensing
agency would have notice of such occurrence.
For all the foregoing reasons, Kersten’s claim that respondents had a duty to renew
or reinstate his licenses in the event FTB removed his name from the April 2014 list
because it determined the tax debt was uncollectible fails.
III
Kersten’s Substantive Due Process Claim Is Barred Because It Was Not Raised Below
Kersten next contends that if FTB removed his name from the Top 500 list after
determining the tax delinquency was uncollectible under subdivision (f)(4) of
section 19195 of the Revenue and Taxation Code, as he seeks to allege, respondents’
continued failure to reinstate or renew his licenses absent a release violated his
6 Section 362(a)(6) of title 11 United States Code provides that a bankruptcy
petition “operates as a stay, applicable to all entities, of—[¶] . . . [¶] . . . any act to collect,
assess, or recover a claim against the debtor that arose before the commencement of the
case under this title.” While section 362(b)(2)(D) excepts from the ambit of the stay the
“withholding, suspension, or restriction of a driver’s license, a professional or
occupational license, or a recreational license, under State law, as specified in section
466(a)(16) of the Social Security Act,” which mandates that states implement
administrative means of withholding such privileges as drivers’ licenses to noncustodial
parents who are in default of their support obligations, there is no similar provision
relating to the suspension, withholding or restriction of professional licenses in any other
context.
14
constitutional right to pursue his profession. As respondents correctly note, Kersten did
not raise this issue below when requesting leave to file a second amended petition. “It is
well established that issues or theories not properly raised or presented in the trial court
may not be asserted on appeal, and will not be considered by an appellate tribunal. A
party who fails to raise an issue in the trial court has therefore waived the right to do so
on appeal.” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.)7
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1),(2).)
/s/
BLEASE, Acting P. J.
We concur:
/s/
MAURO, J.
/s/
HOCH, J.
7 Kersten’s request that we vacate the judgment and remand the case to the trial
court for reconsideration in light of FTB’s adoption of a regulation while the case was
pending on appeal (Cal. Code Regs., tit. 18, § 19195-1) is denied. We have reviewed the
newly adopted regulation, including subdivision (h) cited by Kersten, and find nothing
therein that would support a different ruling on remand.
15