PODIATRIC MEDICAL BOARD OF CALIFORNIA, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; PETER REDKO, Real Party in Interest.
A155260
(San Francisco County Super. Ct. No. CPF-18-516147)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 3/30/21
CERTIFIED FOR PUBLICATION
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 (
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 with
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
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
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
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
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, 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
The trial court granted Dr. Redko‘s petition for a writ of administrative mandate (
“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) 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
In Landau, we concluded that the 1995 enactment amending these statutes (Stats. 1995, ch. 708) “eliminated direct appeal via
In response, the Attorney General, representing the Board, suggests that “it is unclear whether
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 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 (
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 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
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
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
These documents may be obtained by a subpoena duces tecum. (See
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[.]” (
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
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[.]” (
The trial court concluded witness exclusion as a discovery sanction could not be recognized in the absence of an authorizing provision in the 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
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” (
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 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.” (
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.
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 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.” (
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
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.)
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 (
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
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 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
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
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.
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
Podiatric Medical Board of California v. Superior Court of San Francisco; Redko, RPI (A155260)
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
Notes
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
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.