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(c) The initial document filed by any person shall indicate his or her status (as a party or representative of the party) and shall contain his or her name, address and telephone number. Any changes in this information shall be communicated promptly to the hearing office and all parties to the proceeding. A party who fails to furnish such information and any changes to it shall be deemed to have waived his or her right to notice and service under these rules.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); and Section 43105, Health and Safety Code.
s 60055.8. Limitations on Written Legal Arguments or Statements.
(a) Any written legal argument or statement submitted to the hearing officer by a participant in an action under this part shall be double spaced and typed in a font size 12 point or larger. Except as otherwise provided by this part, further limited by the hearing officer, or otherwise authorized by the hearing officer for good cause shown, no written legal argument, exclusive of any supporting documentation, may exceed:
(1) Fifteen pages, for arguments in support of or opposition to motions; and
(2) Five pages, for reply arguments.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); and Section 43105, Health and Safety Code.
s 60055.9. Records of the State Board.
Except where public disclosure of information or exhibits is restricted by law, records of the state board are public records and are available to the public pursuant to section 91000, et seq., Title 17, California Code of Regulations.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; Sections 6250, et seq., Government Code; and Sections 91000, et seq., title 17, California Code of Regulations.
s 60055.10. Interpreters and Other Forms of Accommodation.
(a) In proceedings where a party, a party's representative, or a party's expected witness requires an interpreter for any language, including sign language, that party shall be responsible for notifying the hearing office as soon as the requirement is known, but no later than ten days prior to the first day of hearing. The hearing officer may allow later notification for good cause. The hearing office shall be responsible for securing the interpreter, and for providing reasonable accommodation.
(b) The cost of interpreter services shall be paid by the state board if the hearing officer so directs. In determining who should pay the cost of the interpreter, the hearing officer shall base the decision on equitable considerations, including the ability of the party in need of the interpreter to pay the cost.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; Sections 11435.25, 11435.30 and 11435.55, Government Code; and Section 751, Evidence Code.
s 60055.11. Authority of Hearing Officers.
In any matter subject to hearing pursuant to these rules, the hearing officer shall have the authority to do any act and take all measures necessary for the maintenance of order and for the efficient, fair and impartial adjudication of issues arising in proceedings governed by these rules, including, but not limited to, authority to hold prehearing conferences; conduct hearings to determine all issues of fact and law presented; to rule upon motions, requests and offers of proof, dispose of procedural requests, and issue all necessary orders; administer oaths and affirmations and take affidavits or declarations; to issue subpoenas and subpoenas duces tecum for the attendance of a person and production of testimony, books, documents, or other things; to compel the attendance of a person residing anywhere in the state; to rule on objections, privileges, defenses, and the receipt of relevant and material evidence; to call and examine a party or witness and introduce into the hearing record documentary or other evidence; to request a party at any time to state the respective position or supporting theory concerning any fact or issues in the proceeding; to certify official acts; to extend the submittal date of any proceeding; to hear and determine all issues of fact and law presented and to issue such interlocutory and final orders, findings, and decisions as may be necessary for the full adjudication of the matter.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Sections 11181-11182 and 11425.30, Government Code.
s 60055.12. Disqualification.
(a) The hearing officer or a member of the state board shall disqualify himself or herself and withdraw from any case in which he or she cannot accord a fair and impartial hearing.
(b) A hearing officer may not hear any case in which he or she has previously served as an investigator, prosecutor, or advocate.
(c) Any party may request the disqualification of a hearing officer or member of the state board by filing an affidavit or declaration under penalty of perjury. A request for the disqualification of a hearing officer must be made no later than five days prior to the commencement of a prehearing conference or first day of hearing on the merits, whichever is earlier. A request for the disqualification of a member of the state board must be made no later than five days prior to the state board's consideration of the recommended decision. The affidavit or declaration must state with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. Where the request for disqualification concerns a member of the state board, the issue shall be determined by the other members of the board. Where the request concerns the hearing officer, the issue shall be determined by the hearing officer.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Sections 11425.40 and 11512, Government Code.
s 60055.13. Prohibited Communications.
(a) Except as otherwise provided in this section, while the proceeding is pending, the hearing officer shall not participate in any communications with any party, representative of a party, or any person who has a direct or indirect interest in the outcome of the proceeding about the subject matter or merits of the case at issue, without notice and opportunity of all parties, to participate in communication except a party that has been determined to be in default pursuant to section 60055.37.
(b) No pleading, letter, document, or other writing shall be filed in a proceeding under these rules by a party unless service of a copy thereof together with any exhibit or attachment is made on all other parties to a proceeding. Service shall be in a manner as prescribed in section 60055.5.
(c) For the purpose of this section, a proceeding is pending from the time that the petition for review of an executive officer decision is filed.
(d) Communications prohibited under paragraph (a) do not include communications concerning matters of procedure or practice, including requests for continuances that are not in controversy. It also does not prohibit communications between a party and the hearing officer when the opposing party has had a default entered pursuant to section 60055.37.
(e) A communication between a hearing officer and an employee of the state board that would otherwise be prohibited by this section is permissible if:
(1) The employee is another hearing officer or other employee of the hearing office whose job duties include aiding the hearing officer in carrying out the hearing officer's adjudicative responsibilities. Upon request, the hearing office will provide a list of employees of the hearing office to the parties.
(2) The employee of the state board has not served as an investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage, or in any factually related proceedings, and the purpose of the communication is to assist and advise the hearing officer in determining whether a document is a confidential business record (i.e., trade secrets). In obtaining such assistance and advice, the hearing officer shall give notice to the parties of the person consulted and shall provide the parties with as detailed a summary as possible of the substance of the advice received, while protecting the confidentiality of the business records at issue, and a reasonable opportunity to respond.
(3) The prohibitions of paragraph (a) that apply to the hearing officer shall also apply to all employees covered by subparagraphs (1) and (2) above.
(4) Communications permitted under subparagraphs (1) and (2) above shall not furnish, augment, diminish, or modify the evidence in the record.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Sections 11430.70-11430.80, Government Code.
s 60055.14. Disclosure of Communication.
(a) If, while the proceeding is pending, but before serving as hearing officer, the hearing officer receives a communication of a type that would be in violation of this subarticle if received while serving as hearing officer, he or she shall, promptly after starting to serve, disclose the content of the communication on the record and give all parties an opportunity to address it as provided below.
(b) If a hearing officer receives a communication in violation of this article, the hearing officer shall make all of the following a part of the record in the proceeding:
(1) If the communication is written, the writing and any written response of the hearing officer to the communication; and
(2) If the communication is oral, a memorandum stating the substance of the communication, any response made by the hearing officer, and the identity of each person from whom the hearing officer received the communication.
(c) The hearing officer shall notify all parties that a communication described in this section has been made a part of the record.
(d) If a party requests an opportunity to address the communication within ten days after receipt of notice of the communication:
(1) The party shall be allowed to comment on the communication.
(2) The hearing officer has discretion to allow the party to present evidence concerning the subject of the communication, including discretion to reopen a hearing that hearing having been concluded.
(e) Receipt of ex parte communications may be cause for disqualification of the hearing officer.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Sections 11340.1-11340.5, Government Code.
s 60055.15. Applicability to the State Board.
The provision of Subarticle 3 governing ex parte communications to the hearing officer also governs ex parte communications with members of the state board on matters that may come before them pursuant to Subarticles 4 and 9. Nothing in this provision shall be construed to prohibit ex parte communications, after a proposed decision has been forwarded to the state board, between members of the state board and the hearing officer who prepared the decision, a hearing officer from the State Office of Administrative Hearings (OAH) not previously involved in the case, or outside legal counsel to the state board. Nor shall anything in this provision be construed to prohibit communications between members of the state board and staff of the state board (including staff counsel), provided reasonable notice and opportunity to participate in such communications either in person or by telephone has been provided to all parties. For purposes of this section, reasonable notice shall be deemed as 24- hours or greater advance notice.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Sections 11430.70-11430.80 Government Code.
s 60055.16. Filing of Petitions for Review Hearing.
(a) Within 30 days after receipt of a decision by the executive officer described in section 60055.1, a person directly affected by the decision may file a petition requesting a hearing to review the decision. The hearing officer may extend the time for filing for good cause.
(b) A petition shall be filed with the clerk of the board, at the offices of the state board in Sacramento and a copy served on the executive officer. The petition shall include the following information:
(1) The name and address of the petitioner;
(2) A copy of the executive officer decision for which review is requested;
(3) The date the decision was received by the petitioner;
(4) A statement of the objections to the decision upon which review is requested; a verified statement of the facts, data and other relevant evidence in support of the objections; a demand for the specific relief the petitioner seeks; a short, concise statement of legal argument, with citation to authorities, in support of the objections and the relief requested. The verification may be made on information and belief.
(c) The petitioner may request permission from the hearing officer to amend the petition. Such request must include an amended statement of objections and, as applicable, verified statement of facts, data, and other relevant evidence in support of the amended objections; demand for the specific relief the petitioner seeks; and amended statement of legal argument. The hearing officer shall grant the request upon determining that good cause exists; in granting the request the hearing officer shall take whatever steps necessary (e.g., continuing the hearing) to prevent any party from being unduly prejudiced by the decision.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); and Section 43105, Health and Safety Code.
s 60055.17. Appointment of a Hearing Officer; Initial Review of Petition.
(a) Initial Assignment:
(1) Upon receipt of a petition, the state board shall refer the matter to the administrative hearing office of the state board for assignment of a hearing officer. The hearing office shall assign an administrative law judge from the hearing office to hear the matter, unless staffing and other resources of the hearing office would prevent timely consideration of the matter. If the resources of the administrative hearing office prevent assignment, the administrative hearing office shall refer the matter to the State Office of Administrative Hearings (OAH) for assignment. For the two years immediately following the effective date of these hearing procedures, it shall be presumed that petitions requesting review of executive officer decisions ordering the recall of motor vehicles or motor vehicle engines or the suspension, revocation, or denial of executive orders certifying motor vehicles or motor vehicle engines are too resource intensive, given the present staffing of the administrative hearing office of the state board. For the two-year period identified above, such matters shall be immediately referred to the OAH for assignment.
(2) In addition to the above, a party may petition the state board to request that hearings be referred to OAH. The state board shall grant the request upon the petitioner providing substantial evidence that it could not receive a full and fair hearing from any hearing officer employed by the administrative hearing office of the state board.
(3) In all cases referred to OAH, under paragraph (2) above, the petitioner shall bear one-half of the fees charged by OAH for the services of the OAH hearing officer.
(b) Within 20 days of assignment of a hearing officer, the hearing officer shall review the petition and determine whether a hearing is required by law. Pursuant to section 60055.1(b), all petitions seeking review of executive officer decision to recall motor vehicles or engines under Health and Safety Code section 43105, to revoke or suspend a license as a vehicle emission test laboratory under Title 13, CCR, section 2048, or to revoke or suspend an Executive Order granting certification to a motor vehicle engine family under Chapter 2, Part 5, Division 26 of the Health and Safety Code shall have the right to a hearing. Petitions for review of executive officer decisions to deny applications for motor vehicle certifications shall be entitled to a hearing on the merits, unless the hearing officer finds that the petition and supporting data and information do not raise a substantial issue of fact or law. If the hearing officer determines that a hearing is not required, the petitioner shall be notified of the decision and there shall be no hearing under this article.
(c) A petitioner adversely affected by a hearing officer determination that a hearing is not required may request reconsideration by the state board under Subarticle 10.
(d) The clerk of the state board shall make arrangements to send a copy of the petition and any decision of the hearing officer or the state board to any person who was given written notice of the executive officer's decision.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge , 424 U.S. 319 (1976); and Section 43105, Health and Safety Code.
s 60055.18. Stays Pending Hearing.
(a) On timely receipt of a petition requesting a hearing to review a decision of the executive officer to recall motor vehicles or motor vehicle engines, the hearing officer shall issue a stay of the executive officer action until a decision of the state board has been issued pursuant to section 60055.44.
(b) The hearing officer shall not issue a stay pending review of an executive officer decision denying certification of an motor vehicle engine family pursuant to Chapter 2, Part 5, Division 26 of the Health and Safety Code.
(c) For other decisions of the executive officer for which petitions for review have been filed and hearings granted, the hearing officer shall issue a stay pending issuance of the state board's decision under section 60055.38, unless the hearing officer finds that the adverse effects of a stay on the public health, safety and welfare outweigh the harm to those persons directly affected by the lack of a stay. The hearing officer may conduct a hearing or request such submissions by the parties as necessary to obtain information to make a determination on this issue.
(d) If a stay is granted under subparagraphs (a) and (c) above, and the petition is subsequently denied by the Board, the Board may order the petitioner to take whatever remedial action is necessary, including implementing a recall of those vehicles and engines that would not otherwise have been sold in or delivered to California but for the stay, to achieve emissions reductions equal to the amount of emissions that occurred because of implementation of the stay.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); and Section 43105, Health and Safety Code.
s 60055.19. Executive Officer Response to Petition.
Within ten days after issuance of the hearing officer determination that a hearing is required or ten days after a petition has been amended, the executive officer shall file with the hearing officer and serve upon the petitioner a response to the petition. The response shall contain the reasons for and the facts in support of the decision of the executive officer under review. If a petition for review raises claims or issues in a manner that is so vague or ambiguous that the executive officer cannot reasonably be expected to respond, the executive officer may, within the time allotted for responding, move that the hearing officer require a more definite statement of matters covered in the petition for review. If such motion is granted, the petitioner shall comply within ten days of issuance of the order of the hearing officer.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge , 424 U.S. 319 (1976); and Section 43105, Health and Safety Code.
s 60055.20. Scheduling of Hearings.
(a) Within 30 days after receipt of the executive officer's response, the hearing office shall schedule the hearing on the merits of the petition. Except as provided in paragraph (f), below, a hearing on the merits of a petition for review shall, in general, be scheduled to be heard no later than 180 days from the date of the hearing officer's determination under section 60055.17 that a hearing on the petition for review is appropriate. The hearing officer may determine, for good cause and in the interest of justice, that a later hearing date is necessary.
(b) The hearing office shall deliver or mail a notice of hearing to all parties at least 30 days prior to the hearing. The notice shall be in the form specified in section 11509 of the Government Code, and shall also provide notice of the availability of interpreters pursuant to section 60055.10 of these rules.
(c) The hearing officer shall grant such delays or continuances as may be necessary or desirable in the interest of fairly resolving the case.
(1) The hearing officer may, on his or her own motion or upon request of any party accompanied by a showing of good cause, continue a hearing to another time or place.
(2) A party shall apply to the hearing officer for a continuance not less than five days prior to the scheduled hearing.
(3) When a continuance is ordered during a hearing, the hearing officer shall give written notice of the time and place of the continued hearing.
(d) The hearing office shall set the place of hearing at a location as near as practicable to the place where the petitioner resides or maintains a place of business in California. If the owner does not reside or maintain a place of business in California, the hearing shall be in Sacramento. The hearing office may establish hearing locations anywhere in the state; at a minimum one hearing location shall be established in Sacramento and one in the Los Angeles area.
(e) Upon the motion of any party and a showing of good cause, or upon the motion of the hearing officer, and in the absence of an objection from any party, the hearing officer may exercise discretion to conduct all or part of a hearing by telephone.
(1) In granting such a motion, the hearing officer must be assured that each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe all exhibits fully.
(2) The hearing officer may direct the party who has requested the alternative method to make the necessary arrangements and be responsible for any associated costs.
(f)(1) If a hearing has been granted under section 60055.17 in a proceeding requesting review of an executive officer decision denying certification to motor vehicle engine families pursuant to Chapter 2, Part 5, Division 26 of the Health and Safety Code, a motor vehicle manufacturer may file a petition requesting that the hearing schedule be expedited. Such petitions shall be filed concurrently with the petition for review of the action and shall be accompanied by affidavits and other evidence setting forth the reasons why expedited scheduling is warranted. A hearing officer shall be assigned to consider the petition for expedited scheduling and shall issue a determination on the petition within five business days of receipt of the petition. The hearing officer shall grant the petition for expedited scheduling upon the manufacturer presenting evidence showing a reasonable likelihood that it may suffer serious competitive harm if the petition is not granted.
(2) If the petition for expedited scheduling is granted:
(a) The hearing office shall give priority to the scheduling of the hearing on the merits and shall make every effort to schedule the first day of hearing no later than ten days after the granting of the petition.
(b) The hearing officer shall issue a recommended decision that the Board may accept, reject, or modify as necessary.
(3) Notwithstanding section 60055.25, and subject to the discretion of the hearing officer, the parties shall have limited rights to discovery in a matter scheduled for expedited hearing. The parties shall exchange lists of witnesses that are expected to testify and copies of exhibits that are expected to be introduced at hearing no later than 48 hours prior to the commencement of the hearing. The hearing officer may disallow the testimony of witness or the introduction of any evidence that is not timely provided to the opposing party.
(4) Unless expressly provided by the hearing officer, the parties shall not have the opportunity to present closing written arguments.
(5) The hearing officer shall attempt to issue his or her decision as expeditiously as possible, but not later than ten days after the close of hearing.
(6) Upon issuance of the proposed decision of the hearing officer, the decision shall be delivered to the board for review, with copies served on the parties. Consistent with the requirements of Government Code section 11125, the state board shall consider the recommended decision at its next scheduled meeting. The state board may accept, reject, or modify the hearing officer's proposed decision. If the state board rejects or makes substantive modifications to the proposed decision, it shall issue a written decision, with findings of fact and conclusions of law in support of its decision.
(7) The decision of the state board is not subject to reconsideration under section 60055.41.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Sections 11509 and 11440.30, Government Code.
s 60055.21. Motion to Intervene.
(a) A person may file a motion to intervene, and the hearing officer may grant such a motion if all of the following conditions are satisfied:
(1) The motion is in writing, with copies served on all parties named in the petition for review.
(2) The motion is made as early as practicable prior to the prehearing conference, if one is held, or the first day of the hearing on the merits of the petition for review.
(3) The motion states facts demonstrating that the requesting intervenor's legal rights, duties, privileges, or immunities will be substantially affected by the proceeding or that it qualifies as an intervenor under a statute or regulation.
(4) The hearing officer determines that the interests of justice and the orderly and prompt conduct of the proceeding will not be impaired by allowing the intervention.
(b) If the motion is granted, the hearing officer may impose conditions on the intervenor's participation in the proceeding, either at the time that intervention is granted or at a later time. Conditions may include:
(1) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the motion.
(2) Limiting or excluding the use of discovery, cross-examination, and other procedures involving the intervenor so as to promote the orderly and prompt conduct of the proceeding.
(3) Requiring two or more intervenors to combine their presentations of evidence and argument, cross-examination, discovery, and other participation in the proceeding.
(4) Limiting or excluding the intervenors's participation in settlement negotiations.
(c) The hearing officer shall issue an order granting or denying the motion for intervention as soon as practicable in advance of the hearing, briefly stating the reasons for the order and specifying any conditions that he or she has determined as appropriate. The hearing officer may modify the order at any time, stating the reasons for the modification. The hearing officer shall promptly give notice of any order granting, denying, or modifying intervention to the applicant and to all parties.
(d) Whether the interests of justice and the orderly and prompt conduct of the proceedings will be impaired by allowing intervention is a determination to be made at the sole discretion of the hearing officer, based on his or her knowledge and judgment. The determination is not subject to administrative or judicial review.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Section 11440.50, Government Code.
s 60055.22. Consolidation, Separation of Proceedings.
(a) Upon the motion of a party or upon the hearing officer's own motion, the hearing officer may consolidate for hearing and decision:
(1) Any number of proceedings involving the same respondent or petitioner;
(2) Any number of proceedings involving common issues of law or fact where consolidation would expedite and simplify consideration of the issues and would not adversely affect the rights of the parties.
(b) Upon the motion of a party or upon the hearing officer's own motion, the hearing officer may, in furtherance of convenience or to avoid prejudice or when separate hearings will be conducive to expedition and economy, order a separate hearing of any issue, including an issue raised in the notice of defense, or of any number of issues.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); and Section 43105, Health and Safety Code.
s 60055.23. Prehearing Conference.
(a) Upon the scheduling of a petition for review for hearing, the hearing officer may order the scheduling of a prehearing conference upon his or her own motion or the request of any party. A request for a prehearing conference shall be in writing, addressed to the hearing officer and served on all parties.
(b) A prehearing conference shall be held no later than 30 days after an order of the hearing officer or a request by a party, but no later than 60 days from the date of the executive officer's filing of its response to the petition.
(c) The hearing officer may conduct the prehearing conference in person or by telephone.
(d) At least ten business days before a scheduled conference, each party shall file with the hearing office and serve on all other parties a prehearing conference statement which shall contain the following information:
(1) Identification of all operative pleadings by title and date signed;
(2) The party's current estimate of time necessary to try the case;
(3) The name of each witness the party may call at hearing along with a brief statement of the content of the witness's expected testimony;
(4) The identity of any witness whose testimony will be presented by affidavit pursuant to section 60055.29, if known;
(5) The name and address of each expert witness the party intends to call at hearing along with a brief statement of the opinion the expert is expected to give. The party shall also attach a copy of a current resume for each expert witness;
(6) Whether there is need for an interpreter or special accommodation at the hearing;
(7) A list of the documentary exhibits the party intends to present at hearing and a description of any physical or demonstrative evidence; and
(8) A concise statement of any legal issues which may affect the presentation of evidence or the disposition of the case.
(e) At the prehearing conference, the hearing officer may:
(1) Establish a time and place for further proceedings in the action, but no hearing on the merits of the action shall take place sooner than 30 days following the date of the prehearing conference;
(2) Attempt to simplify issues and help the parties to stipulate to facts not in dispute;
(3) Explore the necessity or desirability of amendments to the pleadings; and
(4) Discuss any other appropriate subject.
(f) After the prehearing conference, the hearing officer shall issue a prehearing order which incorporates the matters determined at the conference. This order may be issued orally if an accurate record can be made. Agreement on the simplification of issues, amendments, stipulations, or other matters may be entered on the record or may be made the subject of a written order by the hearing officer. If no matters were determined or dates set at the prehearing conference, a prehearing order is not required. The hearing officer may, to aid the efficient administration of justice, modify the prehearing order as necessary.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); and Section 43105, Health and Safety Code.
s 60055.24. Settlement Agreements and Consent Orders.
(a) At any time before a final decision is issued, parties, (the complainant and the respondent) may settle the matters at issue, in whole or in part.
(b) The parties may request the assistance of the hearing office in their attempts to settle the matters at issue. Upon receiving such a request, the hearing office may assign a settlement hearing officer, who is not the same hearing officer that has been assigned, to hear the merits of the case, unless the parties specifically request in writing the assignment of the latter hearing officer.
(c) The parties shall memorialize any agreement in writing.
(d) In a petition for review proceeding, if the parties resolve all issues raised by the petition, the petitioner shall agree to withdraw the petition and the case shall be dismissed.
(e) If the settlement does not wholly conclude the action, the hearing officer assigned to hear the merits of the case shall promptly inform the parties of the schedule of the remaining proceedings.
(f) Unless the parties have otherwise consented to use the hearing officer assigned to hear the merits of the case in settlement discussions, settlement discussions or offers of compromise regarding unresolved issues shall not be discussed with that hearing officer. Settlement discussions or offers of compromise shall also not be made part of the record of the proceedings.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Section 11415.60, Government Code.
s 60055.25. Discovery.
(a) The provisions of this section provide the exclusive right to, and method of, discovery as to any proceeding governed by these hearing procedures. However, nothing in this section prohibits the parties from voluntarily stipulating to provide discovery deemed appropriate. This section does not authorize the inspection or copying of, any writing, or thing which is privileged from disclosure by law or protected as part of an attorney's work product.
(b) The names and addresses of witnesses; inspection and copying of documents and things.
(1) Unless otherwise stipulated to by the parties, within 30 days of the hearing officer's determination that a hearing is required under section 60055.17, a party may request:
(A) The names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing; and
(B) The opportunity to inspect and make a copy of any thing, document, statement or other writings relevant to the issues for hearing that are in the possession, custody or control of the other party and would be admissible in evidence. This includes the following information from inspection or investigative reports prepared by, or on behalf of, any party that pertain to the subject matter of the proceeding: (i) the names and addresses of witnesses or of persons (other than confidential informants) having personal knowledge of the issues involved in the proceeding, (ii) matters perceived by the investigator in the course of his or her investigation (as opposed to his or her analysis or conclusions), and (iii) statements related to the issues of the proceedings which are otherwise admissible. For purposes of this section, "any thing, document, statement or other writings relevant to the issues for hearing that are in the possession, custody, or control of the other party" would include those items within the possession, custody, or control of a third-party who obtained or used such items while acting as a representative, contractor, or agent of the "other party".
(2) Parties shall arrange a mutually convenient time for the exchanging of the names and addresses of witnesses and the inspecting and copying of relevant things, documents, statements, and other writings identified in subparagraph (B) above, but such date shall not be later than 30 days from the date of receipt of the request made pursuant to subparagraph (b)(1). Unless other arrangements are made, the party requesting the writings shall pay for the copying.
(3) All requests under subparagraph (b) are continuing, and the party receiving the request shall be under a continuing duty to provide the requesting party with the information requested.
(4) Absent a stipulation between the parties, a party claiming that certain writings or things are privileged against disclosure shall, within 15 days of receipt of the request for inspection and copying, serve on the requesting party a written statement setting forth what matters it claims are privileged and the reasons supporting its claims.
(c) Other Discovery.
(1) A party may file a motion requesting that the hearing officer order further discovery. The motion shall specify the proposed method of discovery to be used and shall include affidavits describing in detail the nature of the information and/or documents sought, the proposed time and place of the discovery (if applicable), and the information addressing the findings listed in subparagraphs (A)-(D) below. The hearing officer shall grant the motion upon finding that:
(A) The additional discovery will not unreasonably delay the proceedings;
(B) The information to be obtained from the discovery is most reasonably obtained from the non-moving party, who has refused to provide it voluntarily; or that
(C) The information to be obtained is relevant and has significant probative value on a disputed issue of material fact regarding a matter at issue.
(2) The hearing officer may order the taking of oral depositions only under the following circumstances:
(A) After affirmatively making the findings in subparagraphs (c)(2)(A)-(C), and further finding that the information sought cannot be obtained by alternative methods; or
(B) There is substantial reason to believe that relevant and probative evidence may otherwise not be preserved for presentation by a witness at the hearing.
(3) If the hearing officer grants the motion for the taking of a deposition, the moving party shall serve notice of the deposition on the person to be deposed with copies served on the other parties at least ten days before the date set for the deposition.
(4) Where the witness resides outside of the state and where the hearing officer has ordered the taking of the testimony by deposition, the hearing officer shall obtain an order of the court to that effect by filing a petition in the superior court in Sacramento County. The proceedings for such a hearing shall be in accordance with the provisions of Government Code section 11189.
(d) Third-Party Notice of Request for Disclosure of Information Identified as Confidential and Opportunity to Participate.
(1) A third-party shall be notified whenever a party receives a request for disclosure of information that is in the possession, control, or custody of the party subject to a claim of confidentiality asserted by the third-party, including, but not limited to, claims of confidentiality asserted pursuant to the California Public Records Act (CPRA). This section creates rights and obligations in addition to, and does not affect, existing rights and obligations under the CPRA and applicable federal regulations.
(2) A third-party shall have the opportunity to be heard on all issues involving requests for disclosure of information that is in the possession, control, or custody of the party subject to a claim of confidentiality asserted by the third-party. Within five days of receipt of notice pursuant to subparagraph (d)(1), a third-party may object to disclosure of the subject information and may seek a protective order pursuant to subparagraph (e). Objections to disclosure may be based on all legal grounds, including, but not limited to, lack of relevance to the issues for hearing.
(e) Protective Orders:
(1) Upon motion by a party from whom discovery is sought, a third-party who has made a claim of confidentiality regarding the information to be discovered, or by the hearing officer on his or her own motion, the hearing officer may enter a protective order with respect to this material.
(2) Prior to granting a protective order, it must be established by the moving party that the information sought to be protected is entitled to be treated as a trade secret or is otherwise confidential. A party or person seeking a protective order shall have the opportunity to be heard on all issues relevant to preserving the record's confidentiality, including, but not limited to, the following:
(A) The appropriate scope and terms of any governing protective order;
(B) The terms under which the record may be placed in evidence or otherwise used at a hearing; and
(C) The disposition of the record and any copies thereof after all relevant administrative and judicial proceedings have concluded.
(3) A party or person seeking a protective order may be permitted to make all, or part of, the required showing in a closed meeting. The hearing officer shall have discretion to limit attendance at any closed meeting proceeding to the hearing officer and the person or party seeking the protective order.
(4) A protective order, if granted, shall contain terms governing the treatment of the information which are appropriate under the circumstances to prevent disclosure outside the hearing. The protective order may order that the trade secret information not be disclosed or that it be disclosed only to specified persons, or in a specified way. Disclosure may be limited to counsel for the parties who shall not disclose such information to the parties themselves. Disclosure to specified persons shall be conditioned on execution of sworn statements that no disclosure of the information will be made to persons not entitled to receive it under the terms of the protective order.
(5) The protective order shall contain terms governing the treatment of the information which are appropriate under the circumstances to prevent disclosure outside the hearing; the order may require that the material be kept under seal and filed separately from other evidence and exhibits in the hearing.
(6) Any party subject to the terms and conditions of any protective order, desiring to make use of any documents or testimony obtained in a closed meeting, shall file a motion to the hearing officer and set forth justification for the request. The motion shall be granted upon a demonstration of good cause that the information is relevant and has significant probative value on a disputed issue of material fact in issue. In granting the motion, the hearing officer shall enter an order protecting the rights of the affected persons and parties, who have claimed that the information is confidential, by preventing any unnecessary disclosure of the information. The hearing officer may require that the information be presented in a closed meeting, with attendance limited, as necessary and practicable, to specified representatives of the parties and that the material be sealed and filed separately from other evidence and exhibits in the hearing.
(7) The hearing office shall make a record of all closed meetings that are held under this section. The record shall be sealed and made available, upon appropriate order, to the state board or to the court review of the record.
(8) If the hearing officer denies a motion for protective order or grants a protective order only, in part, the order shall not become effective until ten days after the date the order is served. In the interim, a party to the proceeding or third-party holder of the asserted confidential information adversely affected by the order may seek appropriate interlocutory relief in a court of competent jurisdiction.
(f) Proceeding to Compel Discovery.
(1) Any party claiming that its request for discovery pursuant to this section has not been complied with or that the opposing party has failed to comply with a stipulated agreement to provide discovery may serve and file with the hearing officer a motion to compel the party who has refused or failed to produce the requested or stipulated discovery to comply. The motion shall include the following:
(A) Facts showing the party has failed or refused to comply with a discovery request or stipulation;
(B) A description of the information sought to be discovered;
(C) The reasons why the requested information is discoverable;
(D) Evidence that a reasonable and good faith attempt to contact the noncomplying party for an informal resolution of the issue has been made; and
(E) To the extent known by the moving party, the measures for the noncomplying party's refusal to provide the requested information.
(2) The motion shall be filed within 15 days after the date the requested information was to be made available for inspection and copying or the date a deposition was scheduled to take place and served upon the party who has failed or refused to provide discovery.
(3) The hearing on the motion to compel discovery shall be held within 15 days after the motion is filed, or a later time that the hearing officer may on his or her own motion for good cause determine. The party who has refused or failed to provide discovery shall have the right to serve and file a written answer or other response which shall be due at the hearing office and personally served on all parties at least three days prior to the date set for hearing.
(4) Where the matter sought to be discovered is under the custody or control of the party who has refused or failed to provide discovery and that party asserts that the matter is not a discoverable matter under this section, or is privileged against disclosure, the hearing officer may order that the party in custody lodge with the hearing office the matters identified in subdivision (b) of section 915 of the Evidence Code and the hearing officer shall examine the matters in accordance with those provisions.
(5) The hearing officer shall decide the case on the matters examined in a closed meeting, the papers filed by the parties, and such oral argument and additional evidence as the hearing officer may allow.
(6) Unless otherwise stipulated by the parties, the hearing officer shall no later than 15 days after the hearing make its order denying or granting the motion. The order shall be in writing setting forth the matters the moving party is entitled to discover. The hearing office shall serve a copy of the order by mail upon the parties. Where the order grants the motion in whole, or in part, the order shall not become effective until ten days after the date the order is served. Where the order denies relief to the moving party, the order shall be effective on the date it is served.
(7) If after receipt of an order directing compliance with the provisions of these rules regarding discovery, a party fails, without good cause, to comply with the order, the hearing officer may draw adverse inferences against that party and may prevent that party from introducing any evidence that had been requested and not produced during discovery into the administrative record.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; Sections 11189 and 11507.6, Government Code; and Section 915(b), Evidence Code.
s 60055.26. Subpoena and Subpoena Duces Tecum.
(a) Subpoenas and subpoenas duces tecum may be issued for attendance at a hearing and for production of documents at any reasonable time and place or at a hearing.
(b) At the request of a party, subpoenas and subpoenas duces tecum shall be issued by the hearing officer assigned to a proceeding, or the general counsel or executive officer of the state board, or, if represented by an attorney, the attorney of record for the party in accordance with sections 1985-1985.4 of the California Code of Civil Procedure.
(c) The custodian of documents that are the subject of a subpoena duces tecum may satisfy the subpoena by delivery of the documents or a copy of the documents, or by making the documents available for inspection or copying, together with an affidavit in compliance with section 1561 of the Evidence Code.
(d) The process extends to all parts of the state and shall be served in accordance with sections 1987 and 1988 of the California Code of CivilProcedure. A subpoena or subpoena duces tecum may also be delivered by certified mail, return receipt requested, or by messenger. Service by messenger shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, or in person, and identifies himself or herself either by reference to date of birth and driver's license number or Department of Motor Vehicles identification number, or the sender may verify receipt of the subpoena by obtaining other identifying information from the recipient. The sender shall make a written notation of the acknowledgment. A subpoena issued and acknowledged pursuant to this section has the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt and the subpoena may so state. A party requesting a continuance based upon the failure of a witness to appear at the time and place required for the appearance or testimony pursuant to a subpoena, shall prove that the party has complied with this section. The continuance shall only be granted for a period of time that would allow personal service of the subpoena and in no event longer than that allowed by law. (continued)