208 Cal. App. 4th 664
Cal. Ct. App.2012Background
- Hansen’s nursing license was revoked by the Board after a default on an accusation for unprofessional conduct and failure to participate in a diversion program.
- The Board served the decision by certified mail to Hansen’s address of record on December 22, 2010; Hansen had moved in July 2009 and did not notify the Board of a new address.
- Hansen did not receive either the accusation (Oct. 1, 2010) or the decision (Dec. 22, 2010) due to the address issue.
- She learned of the revocation on February 27, 2011, while viewing the Board’s website, and sought reconsideration on March 7, 2011; the Board declined on May 9, 2011.
- Hansen filed a petition for writ of administrative mandate on May 20, 2011; the Board demurred, arguing untimeliness under Gov. Code sections 11521 and 11523.
- The trial court sustained the demurrer with leave to amend, which Hansen did not do, resulting in a dismissal with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 11523 and 11521 | Hansen argues discovery tolled deadlines and good cause extended time. | Board argues strict 30-day deadlines apply with no tolling extensions absent stay. | Timeliness remains untimely; deadlines not tolled. |
| Discovery rule applicability | Discovery of revocation tolls the 30-day period. | Discovery rule not applied to these Government Code deadlines; no tolling recognized. | Discovery rule not persuasive; even if applied, petition still untimely. |
| Good cause and 473 tolling | Good cause or 473 relief excuses late filing. | No statutory extension or relief for good cause; 473 not applicable here. | No relief for good cause; no extension permitted. |
| Board delay tolling | Board delays in reconsideration tolled the deadline. | Board delay did not toll deadlines; reconsideration power expired timely. | Board delay did not toll the 11523 deadline; petition untimely. |
| Due process and notice | Actual notice was not provided; due process requires notice and hearing. | Notice by certified mail satisfies due process when licensee fails to keep address current. | Notice was constitutionally adequate; due process satisfied. |
Key Cases Cited
- Morton v. Board of Registered Nursing, 235 Cal.App.3d 1560 (1991) (establishes 30-day review deadline after last reconsideration period)
- Bonnell v. Medical Board, 31 Cal.4th 1255 (2003) (clarifies reconsideration timing and deadlines)
- Kupka v. Board of Administration, 122 Cal.App.3d 791 (1981) (no extensions for good cause absent statute permitting)
- Compton v. Board of Trustees, 49 Cal.App.3d 150 (1975) (reconsideration timing framework for boards)
- Miller v. Board of Medical Quality Assurance, 193 Cal.App.3d 1371 (1987) (deadline framework for reconsideration and notice)
- Baughman v. Medical Board, 40 Cal.App.4th 398 (1995) (service by certified mail satisfies due process under Gov. Code §11505)
- Miller Family Home, Inc. v. Department of Social Services, 57 Cal.App.4th 488 (1997) (notice by certified mail satisfies due process; service mechanics)
- Evans v. Department of Motor Vehicles, 21 Cal.App.4th 958 (1994) (due process considerations for notice of agency actions)
- Meleikian v. Truck Ins. Exchange, 133 Cal.App.2d 113 (1955) (compliance with verified allegations binding on appeal)