62 Cal.App.5th 657
Cal. Ct. App.2021Background
- Dr. Peter Redko (podiatrist) faced disciplinary charges by the Podiatric Medical Board alleging negligent care and inadequate records; an evidentiary hearing was scheduled.
- Redko designated Dr. Thomas Chang as his expert; the Board issued a subpoena duces tecum to Chang seeking communications and materials.
- Redko moved to quash; the presiding ALJ denied the motion and, finding Chang refused to comply, issued a prehearing order excluding Chang from testifying.
- The assigned ALJ conducted the hearing without Chang, the Board adopted the proposed decision disciplining Redko, and Redko sought administrative mandamus in superior court.
- The superior court granted the writ, holding the presiding ALJ lacked statutory authority to impose a prehearing evidentiary exclusion as a discovery sanction under the APA; the Board appealed and the Court of Appeal treated the filing as a writ petition.
Issues
| Issue | Redko's Argument | Board's Argument | Held |
|---|---|---|---|
| Whether the presiding ALJ had authority under the APA to exclude an expert’s testimony prehearing as a discovery sanction | APA supplies the exclusive discovery scheme; no express authority to preclude testimony; sanction was beyond statutory power | Gov. Code §11512(b) grants ALJs power to "exercise all powers relating to the conduct of the hearing," including evidence exclusion; implied power to control discovery abuse | The prehearing exclusion by the presiding ALJ was statutorily unauthorized and a prejudicial abuse of discretion; §11512(b) applies to the ALJ who actually conducts the hearing, not the presiding ALJ’s prehearing ruling |
| Whether an ALJ has an implied power to impose witness-preclusion sanctions for discovery misuse | No—implied powers cannot override the APA’s explicit, exclusive discovery remedy scheme | Implied/common-sense authority analogous to trial judges and some federal ALJs; necessary for orderly hearings | Court declined to recognize an implied prehearing exclusion power where APA provides specific remedies (motion to compel, monetary sanctions, contempt) that were not used |
| Whether extra-statutory discovery sanctions are permissible when statutory remedies exist but were not pursued | Statutory remedies are exclusive; agency may not invent harsher sanctions | Agency needs practical tools; excluding testimony is a proper remedial tool to protect hearing integrity | Court refused to leapfrog statutory remedial scheme; denying nonstatutory sanction preserves legislative allocation of powers |
| Procedural jurisdiction: whether the Board’s appeal was proper | (Raised by Redko) Board’s appeal is unauthorized because review of superior court writ is by extraordinary writ to appellate court | Board asked the court to treat the filing as a writ petition and reach the merits | Court treated the notice as a petition for extraordinary writ and decided the merits; appeal/dismissal handled accordingly |
Key Cases Cited
- Landau v. Superior Court, 81 Cal. App. 4th 191 (Cal. Ct. App. 1998) (post-1995 statutes altered review routes from direct appeal to writ practice)
- Ferdig v. State Personnel Bd., 71 Cal.2d 96 (Cal. 1969) (administrative agencies only possess powers conferred by statute)
- Dickey v. Raisin Proration Zone No. 1, 24 Cal.2d 796 (Cal. 1944) (officials may exercise additional powers fairly implied as necessary to perform statutory duties)
- Rich Vision Centers, Inc. v. Board of Medical Examiners, 144 Cal. App. 3d 110 (Cal. Ct. App. 1983) (implied agency powers may be recognized where consistent with statutory scheme)
- Mileikowsky v. West Hills Hosp. & Med. Ctr., 45 Cal.4th 1259 (Cal. 2009) (limits on hearing-officer authority to impose certain discovery-termination sanctions)
- Lucia v. Securities & Exchange Comm’n, 138 S. Ct. 2044 (U.S. 2018) (distinguishing federal ALJ powers under SEC scheme; not directly authorizing state ALJ discovery sanctions)
- New Albertsons, Inc. v. Superior Court, 168 Cal. App. 4th 1403 (Cal. Ct. App. 2008) (civil discovery sanctions must follow statutory/court-order-based progression)
- Friends of Outlet Creek v. Mendocino County Air Quality Mgmt. Dist., 11 Cal. App. 5th 1235 (Cal. Ct. App. 2017) (review includes whether agency followed law)