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(e) No witness is obliged to attend unless the witness is a resident of the state at the time of service.
(f) Upon timely motion of a party or witness, or upon his or her own motion, after notice to the parties and an opportunity to be heard and upon a showing of good cause, the hearing officer may order the quashing of a subpoena or subpoena duces tecum entirely, may modify it, or may direct compliance with it upon other terms or conditions. In addition, the hearing officer may make any other order as may be appropriate to protect a party or witness from unreasonable or oppressive demands.
(g) The state board may quash a subpoena or a subpoena duces tecum that it has issued on its own motion.
(h)(1) In the case of the production of a party to the record of a proceeding or of a person for whose benefit a proceeding is prosecuted or defended, the service of a subpoena on the witness is not required if written notice requesting the witness to attend, with the time and place of the hearing, is served on the representative of the party or person.
(2) Service of written notice to attend under this section shall be made in the manner and is subject to the conditions provided in section 1987 of the California Code of Civil Procedure for service of written notice to attend in a civil action or proceeding.
(i) A witness other than an employee of the state or a political subdivision thereof appearing pursuant to a subpoena or a subpoena duces tecum, other than a party, shall receive the same mileage, and appearance fees allowed by law; such fees are to be paid by the party at whose request the witness is subpoenaed.
Note: Authority cited: Sections 39600, 39601 and 43028, Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; Sections 11186-11188, 11450.05-11450.30, Government Code; Section 1561, Evidence Code; and Sections 1985-1985.4, 1987 and 1988, California Code of Civil Procedure.
s 60055.27. Witness Lists and Exhibits.
(a) No later than ten days before the scheduled hearing date, the parties shall submit to the hearing office and serve upon the other parties:
(1) A list of the names, addresses and qualifications of proposed witnesses to be called in making the party's case-in-chief and a brief summary of the testimony to be presented by each witness; and
(2) Each document or other exhibit, the party expects to offer or may offer, if the need arises, into evidence in making the party's case-in-chief.
(b) The hearing officer may prohibit any party from presenting any witness or exhibit that has not been included on that party's witness list or in the exhibits that have been submitted as required under paragraph (a) of this section.
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 60055.28. Motions for Summary Determination of Issues.
(a) Any party may file a motion for summary judgment or summary adjudication of the issues. Such motions shall include supporting legal argument, and where necessary, affidavits showing that there is no genuine issue of material fact for determination regarding the identified issues. A party opposing such a motion shall show by affidavit or other documentation that a genuine issue of material fact as to the issues raised exists. After reviewing the motion and response of the parties, the administrative record, and any arguments of the parties, the hearing officer shall determine whether a genuine issue of material fact as to the issues exists and whether a party is entitled to judgment on the issue(s) as a matter of law.
(b) If, upon considering a motion under subparagraph (c), the hearing officer determines that a party is entitled to summary judgment on the issue(s) as a matter of law, the hearing officer shall issue a written decision or order that sets forth necessary findings of fact and conclusions of law regarding all matters that were at issue.
(c) Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the hearing officer may deny the motion or may grant a continuance to permit affidavits to be obtained or to permit such additional discovery as provided under these procedures.
(d) The hearing officer shall deny a request for summary determination of the issue(s) if he or she finds the administrative record, including any evidence presented by the parties as part of this motion, present a genuine issue of material fact. If the hearing officer denies a request for summary determination, or denies such a request in part, the hearing officer shall promptly issue to each party a written ruling as to the existence of a genuine issue of material fact on the issue(s) and the reasons for the ruling. The matter shall continue to be set for hearing on all issues for which a genuine issue of material fact exists.
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 60055.29. Contempt.
If any person in proceedings before the hearing officer disobeys or resists any lawful order or refuses to respond to a subpoena, subpoena duces tecum, or refuses to take the oath or affirmation as a witness or thereafter refuses to be examined, or is guilty of misconduct during a hearing or in its immediate vicinity as to obstruct the proceedings, the hearing officer may certify the facts to the Superior Court in and for the county where the proceedings are held for contempt proceedings pursuant to Government Code section 11455.20.
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 11455 and 11525, Government Code.
s 60055.30. Sanctions.
(a) Notwithstanding the above, the hearing officer may order a party, a party's representative or both, to pay reasonable expenses, including attorney's fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.
(1) "Actions or tactics" include, but are not limited to, the making or opposing of motions; the failure to comply with a discovery request or subpoena; or the failure to comply with a lawful order of the hearing officer.
(2) "Frivolous" means:
(A) Totally and completely without merit; or
(B) For the sole purpose of harassing an opposing party.
(b) An order for sanctions may be oral on the record or in writing and shall set forth the factual findings which are the basis for the imposition of sanctions.
(1) In determining reasonable expenses, the party or parties to whom payment is to be made shall, at the hearing officer's discretion, either make a statement on the record under oath or submit a written declaration under penalty of perjury setting forth with specificity the expenses incurred as a result of the other party's conduct.
(2) Within five days of the receipt of the hearing officer's order for the payment of expenses, a party or representative may, on the ground of hardship, request reconsideration from the hearing officer issuing the order. The request for reconsideration shall be filed in writing, and include a declaration under penalty of perjury.
(c) The order or denial of an order to pay expenses under paragraph (b) is subject of procedural review in the same manner as a final decision pursuant to Subarticle 11.
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 11455.30 and 11525, Government Code.
s 60055.31. Failure to Appear.
If after service of a Notice of Hearing, including Notice of Consolidated Hearing or Continuance, a party fails to appear at a hearing either in person or by representative, the hearing officer may take the proceeding off calendar, or may, at the request of a party, or on his or her own motion, adversely rule against the absent party.
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 60055.32. Conduct of Hearing.
(a) The hearing shall be presided over by a hearing officer who shall conduct a fair and impartial hearing in which each party has a reasonable opportunity to be heard and to present evidence.
(b) The hearing shall be conducted in the English language.
(c) Subject to reasonable limitations that may be imposed by the hearing officer, each party to the proceeding shall have the right to:
(1) Call and examine witnesses;
(2) Introduce exhibits;
(3) Question opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examinations;
(4) Impeach any witness regardless of which party first called the witness to testify; and
(5) Call and examine an opposing party as if under cross-examination, even if that party does not testify on his or her own behalf.
(d) Burden of Going Forth.
(1) The executive officer has the initial burden of presenting evidence that those parts of the executive officer decision specifically challenged in the petition for review are supported by the facts and applicable law.
(2) After the executive officer presents its evidence, the petitioner shall present documentation, testimony, or other evidence to support all claims made, including any affirmative defenses raised, that are pertinent to the issues presented to the hearing officer for determination.
(3) Subject to the hearing officer's authority under subparagraph (e)(1) below, at the close of the petitioner's presentation of evidence, the parties may present rebuttal evidence that is necessary to resolve disputed issues of material fact.
(e) The hearing officer may:
(1) Limit the number of witnesses and the scope and extent of any direct examination, cross-examination, or rebuttal testimony, as necessary, to protect the interests of justice and conduct a reasonably expeditious hearing;
(2) Require the authentication of any written exhibit or statement;
(3) Call and examine a party or witness and may, on his or her own motion, admit any relevant and material evidence;
(4) Exclude persons whose conduct impedes the orderly conduct of the hearing;
(5) Restrict attendance because of the physical limitations of the hearing facility; or
(6) Take other action to promote due process or the orderly conduct of the hearing.
(f) The taking of evidence in a hearing shall be controlled by the hearing officer in the manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the hearing officer shall define the issues and the order in which evidence will be received. The hearing officer shall have discretion to decide whether conferences and informal discussions necessary to facilitate the orderly and expeditious conduct of the case will be conducted in closed session and/or be recorded.
(g) Each matter in controversy shall be decided by the hearing officer upon a preponderance of the evidence test, unless otherwise provided under California law.
(h) Hearings shall be recorded electronically. The recording made by the Administrative Hearing Office shall be the official recording of the hearing.
(1) A verbatim transcript of the official recording will not normally be prepared, but may be ordered by the hearing officer if deemed necessary to permit a full and fair review and resolution of the case. If not so ordered by the hearing officer, a party may, at its own expense, request that a verbatim transcript be made. The party making the request shall provide one copy to the hearing officer and one copy to every other party.
(2) The official recording of the hearing and transcript of the recording, together with all written submissions made by the parties, shall become part of the administrative record for the proceeding.
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 60055.33. Evidence.
(a) Testimony shall be taken only under oath or affirmation.
(b) The hearing need not be conducted according to technical rules relating to evidence and witnesses. The hearing officer shall admit evidence which is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions, and which is not irrelevant, immaterial, unduly repetitious, or otherwise unreliable or of little probative value. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but upon timely objection shall not be sufficient in and of itself to support a finding unless it would be admissible over objection in civil actions. The application of these rules shall not affect the substantial rights of the parties as provided in the Evidence Code.
(c) The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing.
(d) Consistent with the provisions of section 60055.25(d), trade secret and other confidential information may be introduced into evidence. The hearing officer shall take all precautions to preserve the confidentiality of such information, and may make such orders as may be necessary to consider such evidence in a closed meeting, including the use of a supplemental order or decision to address matters which arise out of that portion of the evidence which is confidential.
(e) In reaching a decision, official notice may be taken, either before or after submission of the proceeding for decision, of any generally accepted technical or scientific matter within the state board's area of expertise, and determinations, rulings, orders, findings and decisions, required by law to be made by the state board or the hearing officer.
(1) The hearing officer shall take official notice of those matters set forth in section 451 of the Evidence Code.
(2) The hearing officer may take official notice of those matters set forth in section 452 of the Evidence Code.
(3) Each party shall give notice of a request to take official notice and be given reasonable opportunity on request to present information relevant to:
(A) The propriety of taking official notice; and
(B) The effect of the matter to be noticed.
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 451 and 452, Evidence Code.
s 60055.34. Evidence by Affidavit or Declaration.
(a) At any time 20 or more days prior to a hearing or a continued hearing, a party may mail or deliver to the opposing party or parties a copy of any affidavit or declaration which the proponent proposes to introduce in evidence, together with a notice as provided in subdivision (b). Unless an opposing party, within seven days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine the affiant or declarant the opposing party's right to cross-examine such affiant or declarant is waived and the affidavit or declaration, if introduced in evidence, shall be given the same effect as if the affiant or declarant had testified orally. If an opportunity to cross-examine an affiant or declarant is not afforded after request therefore is made as herein provided, the hearing officer may allow the affidavit or declaration to be introduced, but if it is allowed to be introduced, it shall only be given the same effect as other hearsay evidence.
(b) The notice referred to in subdivision (a) shall be a separate document concurrently served with the affidavit or declaration, entitled "Notice of Intent to Use Declaration or Affidavit in Lieu of Oral Testimony." The title shall be in bold print. The content of the notice shall be substantially in the following form:
"The accompanying affidavit or declaration of [insert name of affiant or declarant] will be introduced as evidence at the hearing in [insert title and docket number or petition number of proceeding]. [Insert name] will not be called to testify orally and you will not be entitled to question the affiant or declarant unless you notify [insert name of the proponent, representative, agent or attorney] at [insert address] that you wish to cross-examine the affiant or declarant. To be effective, your request must be mailed or delivered to [insert name of proponent, representative, agent or attorney] on or before [insert a date 7 days after the date of mailing or delivery of the affidavit to the opposing party]."
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 60055.35. Exclusion of Witnesses.
Upon motion of a party, the hearing officer may exclude from the hearing room any witnesses not at the time under examination; but the parties or their representatives to the proceeding shall not be excluded.
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 60055.36. Oral Argument and Briefs.
(a) Prior to the close of the hearing, the hearing officer may, on his or her own motion, or upon motion of a party, grant and determine the length of oral argument.
(b) Motions to submit written closing argument shall be made prior to the close of the hearing and shall be granted at the discretion of the hearing officer upon a determination that written argument will be productive and will not unreasonably delay the disposition of the proceeding. The hearing officer shall determine the appropriate page lengths of all post hearing briefs at the time he or she determines that the filing of closing arguments is appropriate. A party shall file written closing brief within 15 working days from the date of the hearing. Opposing parties may file a reply brief within 10 working days from service of the argument. The hearing officer may extend or reduce the above filing dates for submission of written argument for good cause.
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 60055.37. Default Order.
(a) Upon motion, the hearing officer may find a party to be in default upon failure, without good cause to appear at a scheduled conference or hearing; or to comply with an order of the hearing officer.
(b) A default by the petitioner shall result in dismissal of the petition, with prejudice.
(c) A default by the executive officer shall result in reversal of the decision of the executive officer that is under review.
(d) Any proceeding may be reinstated by the hearing officer upon a showing of good cause that contains sufficient facts to show or establish a reasonable basis for the failure to appear at the hearing. The request for reinstatement shall be made by the defaulting party within 30 days of service of the default order.
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 60055.38. Proposed Order or Decision of the Hearing Officer after Petition for Review Hearing; Order or Decision of the Board.
(a) Unless otherwise ordered, all hearings on petitions for review shall be submitted at the close of the hearing unless otherwise extended by the hearing officer or provided in these rules. Within a reasonable period of time after the proceeding is submitted, the hearing officer shall make findings upon all facts relevant to the issues for hearing, and file a proposed order or decision with the reasons or grounds upon which the order or decision was made.
(b) The proposed order or decision shall be in writing, signed and dated by the hearing officer deciding the proceeding.
(c) The hearing officer shall immediately certify the administrative record and forward it, together with a copy of the proposed order or decision, to the clerk of the board. Within 30 days after receipt of the proposed order or decision, the clerk of the board shall serve a copy of the proposed order or decision on each party to the proceeding or its representative and shall issue a public notice that the state board will conduct a public hearing to consider adoption of the proposed order or decision of the hearing officer. At the public hearing, the state board may take any of the following actions:
(1) Adopt the proposed order or decision in its entirety.
(2) Make technical or other minor changes to the proposed order or decision and adopt it as its own. Actions under this subparagraph are limited to clarifying or other changes that do not affect the factual or legal basis of the proposed decision.
(3) Refer the matter back to the hearing officer for the taking of additional evidence, or order that additional evidence be taken at a hearing before the state board itself. If the matter is remanded to the hearing officer, the hearing officer shall issue and serve upon the parties a new proposed order or decision based upon the new evidence that has been received. In such an event, the state board shall consider the newly proposed order or decision under the procedures set forth in this section.
(4) Issue its own written order or decision, based on the administrative record and any additional evidence presented during the public hearing, setting forth findings of fact and conclusions of law regarding all issues necessary to support the order or decision.
(d) The clerk of the state board shall serve a copy of the order or decision of the state board on the petitioner, other parties to the proceedings, and any member of the public who has requested a copy. The state board shall specify in the order or decision the date that order or decision becomes effective.
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 60055.39. Reconsideration by the State Board.
A party aggrieved by an order or decision of the state board relating to a petition for review of an executive officer decision pursuant to section 60055.38 of these rules, or an initial determination by the hearing officer that a hearing to consider a petition is not required by law, pursuant to section 60055.17 of these rules, may within 20 days of service of such order or decision, request that the state board reconsider its order or decision with respect to any matters covered therein. The request for reconsideration shall be filed with the clerk of the state board and shall be served on all parties and the hearing office. The request shall be deemed filed the date it is delivered or mailed to the clerk of the state board.
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 60055.40. Requirements in Filing Request for Reconsideration; Comments Opposing Request.
(a) A request for reconsideration of a state board's order or decision regarding a petition for review of an executive officer decision shall be signed by the party or its representative and verified under oath. The request shall be based upon one or more of the following grounds:
(1) The hearing officer or the state board acted without or in excess of its powers;
(2) The order or decision was procured by fraud;
(3) The order or decision is not supported by the evidence or the findings of fact;
(4) The requesting party has discovered new material evidence that could not, with reasonable diligence, have been discovered and produced at the hearing; or
(5) The hearing officer and/or the state board have misapplied applicable law.
(b) Any request for reconsideration shall specifically detail the grounds upon which the requesting party considers the order or decision to be unjust or unlawful and every issue to be considered on reconsideration. The requesting party shall be deemed to have fully waived all objections, irregularities, and illegalities concerning the proceeding upon which reconsideration is sought other than those specifically set forth in the request for reconsideration. The request for reconsideration will be denied if it contains no more than allegations of the statutory or constitutional grounds for reconsideration, unsupported by specific references to the record and principles of law involved.
(c) When a request for reconsideration or answer thereto has been timely filed, the filing of supplemental papers or answers may be granted at the discretion of the state board. Parties requesting a copy of the hearing record shall bear the cost of reproduction.
(d) The request for reconsideration may include a request that the order or decision of the state board be stayed pending resolution of the request for reconsideration. As provided in section 60055.41, the order or decision shall be automatically stayed for 20 days from the date of filing of the request for reconsideration.
(e) Within ten days of being served with notice of a request for reconsideration, a party opposed to the request may file an opposition to the request with the clerk of the state board. The opposition shall be signed and verified under oath by the party or its representative and shall not exceed six pages.
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 60055.41. Decision on Reconsideration; Stays.
(a) The state board may upon the request of a party or its own motion, stay, suspend, or postpone the order or decision that it has issued while the request for reconsideration is pending.
(b) The state board shall consider the request for reconsideration at the next scheduled board meeting at which the matter may be timely considered and may:
(1) Review some, but not all issues raised by the request;
(2) Affirm, rescind, or amend the findings and conclusions of law, of the order or decision; or
(3) Direct the taking of additional evidence either by submission or further hearing.
(A) If the state board orders the parties to submit additional evidence, notice and an opportunity to respond shall be given to all parties.
(B) If the state board orders that additional evidence be taken at a further hearing conducted by the state board or the hearing officer assigned to the case and that additional findings of fact be made, notice of the time and place of the hearing shall be given to all parties and to such other persons that may be affected by the order.
(C) The issues on further hearing shall be limited to those set forth in the order issued by the state board.
(D) The time limits in section 60055.38 of these rules for filing an order or decision shall not apply to further hearings during reconsideration.
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 1140.10, Government Code.
s 60055.42. Final Order or Decision; Effective Date.
(a) If no request for reconsideration of state board's order or decision is filed within 30 days of the service of an order or decision, the initial order or decision of the state board shall become final. The effective date of the final order or decision shall be the date set forth in the state board's initial decision.
(b) If reconsideration has been requested, the order or decision of the state board that addresses and fully disposes of the request for reconsideration is the final order or decision. The effective date of the order or decision shall be the date that the order or decision was served on the parties.
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 60055.43. Judicial Review.
(a) A party adversely affected by a final decision of the state board, may seek judicial review by filing a petition for a writ of mandate in accordance with section 1094.5 of the California Code of Civil Procedure. The right to petition shall not be affected by the failure to seek reconsideration before the agency. Such petition shall be filed within 30 days after the order or decision becomes final.
(b) The state board may seek to enforce a final order or decision in superior court in accordance with applicable law.
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 1094.5, California Code of Civil Procedure.
s 60060.1. Applicability.
(a) This article governs review of Executive Officer determinations regarding compliance with the provisions of Health and Safety Code section 43105.5, and its implementing regulations, title 13, California Code of Regulations, section 1969.
(b) The provisions of this article apply only to determinations issued on or after the effective date of this article.
Note: Authority cited: Sections 39600, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: 43105.5(e) and (f), Health and Safety Code; Sections 11500, et seq., Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge(1976) 424 U.S. 319.
s 60060.2. Definitions.
(a) The definitions applicable to these rules include those set out in the Health and Safety Code (commencing with section 39010) and in Title 13, California Code of Regulations, section 1969(c). The definitions set forth in Title 17, California Code of Regulations, section 60065.2 shall also be applicable to the extent that such definitions do not conflict with any terms as defined below. To the extent that any definition in section 60065.2 is applicable to these hearing procedures, any reference to a section within Article 3 that is set forth in that definition shall be read as the parallel section within this Article.
(b) The following definitions also apply:
(1) "Executive Officer" is the Executive Officer of the state board and employees of the state board authorized to represent the Executive Officer in the determination made pursuant to title 13, CCR, section 1969(j).
(2) "Interested Party" shall mean the covered person who filed the underlying request for audit that led to the issuance of a notice to comply.
(3) "Party" refers to the Executive Officer or motor vehicle manufacturer appearing before a hearing officer in a hearing to review an Executive Officer determination against the motor vehicle manufacturer for noncompliance with Health and Safety Code section 43105.5 and title 13, California Code of Regulations section 1969 and also to an person whose motion to intervene has been granted pursuant to section 60060.8.
(4) "Request for Review" refers to the document requesting an administrative hearing that may be filed by a motor vehicle manufacturer or the Executive Officer.
(5) "Response" means a document that is responsive to the request for review filed by a party opposed to the review or the relief requested.
Note: Authority cited: Sections 39010, 39600 and 39601, Health and Safety Code. Reference: Part 5 (commencing with 39010), and Sections 43105.5(e) and (f), Health and Safety Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.3. Right to Representation.
(a) A party may appear in person or through a representative, who is not required to be an attorney at law. The right to representation is at the party's own expense. Following notification that a party is represented by a person other than him or herself, all further communications regarding the proceedings shall be directed to that representative.
(b) A representative of a party shall be deemed to control all matters respecting the interest of such party in the proceeding. Persons who appear as representatives shall not engage in unethical conduct or intentionally fail to observe the procedures set forth in these rules and the proper instructions or orders of the hearing officer.
(c) A representative may withdraw an appearance by filing a written notice of withdrawal with the hearing office and by serving a copy on all parties.
Note: Authority cited: Sections 39600, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.4. Time Limits; Computation of Time.
(a) All actions required under these rules shall be completed within the times specified in this article, unless extended by the hearing officer after a showing of good cause and consideration of prejudice to other parties. Requests for extensions of time for the filing of any pleading, letter, document, or other writing or completing any other required action must be received in advance of the date on which the filing or action is due and should contain sufficient facts to establish a reasonable basis for the relief requested.
(b) In computing the time that a person has to perform an act or exercise a right, the day of the event initiating the running of the time period shall not be included and the last day of the time period shall be included. If the last day falls on a Saturday, Sunday, or a state holiday, time shall be extended to the next working day.
(c) In computing time, the term "day" means calendar day, unless otherwise provided.
(d) Unless otherwise indicated by proof of service, the mailing date shall be presumed to be the postmark date appearing on the envelope if first-class postage was prepaid and the envelope was properly addressed.
(e) Where service of any pleading, petition, letter, document, or other writing is by mail, overnight delivery, or facsimile transmission (fax), pursuant to section 60060.5(c), and if within a given number of days after such service, a right may be exercised, or an act is to be performed, the time that such right may be exercised or act performed shall be extended as provided in section 60060.5(c).
(f) Papers delivered to or received by the hearing office during regular business hours (8 a.m. to 5 p.m.) will be filed on that date. Papers delivered or received at times after regular business hours will be filed on the next regular business day.
Note: Authority cited: Sections 39600, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.5. Service, Notice and Posting.
(a) Except as otherwise provided in this article, the original of every pleading, petition, letter, document, or other writing served in a proceeding under these rules shall be filed with the hearing office.
(b) A copy of the request for review shall be concurrently served on all other parties.
(c) Unless otherwise required, service of any documents in the proceedings may be made by personal delivery, by United States first-class or interoffice mail, by overnight delivery, or by fax.
(1) Service is complete at the time of personal delivery.
(2) In the case of first-class mail, the documents to be served must be deposited in a post office, mailbox or mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, properly addressed to the person on whom it is to be served at the address as last given by that person on any document filed in the present cause of action and served on the party making service or otherwise at the place of residence of the person to be served. The service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or to make any response within any period or date prescribed after service of the document shall be extended five days if the place of address is within the State of California, ten days if the place of address is outside the State of California but within the United States, and fifteen days if the place of address is outside the United States.
(3) If served by overnight delivery, or interoffice mail, the document must be deposited in a box or other facility regularly maintained for interoffice mail or by the express service carrier, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for, addressed to the person on whom it is to be served, at the address as last given by the person on any document filed in the present cause of action and served on the party making service or otherwise at that place of residence of the person to be served. The service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or to make any response within any period or date prescribed after service of the document shall be extended two days.
(4) If served by fax, the document must be transmitted to a fax machine maintained by the person on whom it is served at the fax machine telephone number as last given by that person on any document which he or she has filed in the present cause of action and served on the party making the service. The service is complete at the time of the transmission, but any period of notice and any right or duty to do any act or to make any response within any period or date prescribed after service of the document shall be extended two days.
(d) Each document filed shall be accompanied by a proof of service on each party or its representative of record on the date of service. The proof of service shall state whether such service was made personally, first-class mail, overnight delivery, or fax.
(1) Where service is made by personal delivery, the declaration shall show the date and place of delivery and the name of the person to whom the documents were handed. Where the person making the service is unable to obtain the name of the person to whom the documents were handed, the person making the service may substitute a physical description for the name.
(2) Where service is made by first-class mail or overnight delivery, the declaration shall show the date and place of deposit in the mail, the name and address of the person served as shown on the mailing envelope and that the envelope was sealed and deposited in the mail with the postage fully prepaid.
(3) Where service is made by fax, the declaration shall show the method of service on each party, the date sent, and the fax number to which the document was sent.
(e) The proof of service declaration shall be signed by the person making it and contain the following statement above the signature: "I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and this declaration was executed at (City, State) on (Date)." The name of the declarant shall be typed and signed below this.
(f) Proof of service made in accordance with the California Code of Civil Procedure section 1013a complies with this regulation.
(g) Service and notice to a party who has appeared through a representative shall be made upon such representative.
Note: Authority cited: Sections 39600, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Sections 11182 and 11184, Government Code; Sections 1013 and 1013a, Code of Civil Procedure; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.6. Motions.
(a) Any motion or request for action by the hearing officer filed by any party, except those made orally on the record at a hearing, shall be in writing and filed with the hearing officer, with written notice and proof of service to all parties. The caption of each motion shall contain the title and docket number of the proceeding and a clear and plain statement of the relief sought and supporting rationale.
(b) Except as otherwise provided by statute or these regulations, or as ordered by the hearing officer, a motion shall be made and filed at least 15 days before the date set for the motion to be heard or the commencement of the hearing on the merits. Any response to the motion shall be filed and served no later than five days before the motion is scheduled to be heard or as ordered by the hearing officer.
(c) The hearing office shall set the time and place for the hearing of the motion. The hearing shall occur as soon as practicable.
(d) Except as otherwise provided by statute or these regulations, the hearing officer may decide a motion filed pursuant to this section without oral argument. Any party may request oral argument at the time of the filing of the motion or the response. If the hearing officer orders oral argument, the party requesting oral argument, or any party directed to do so by the hearing officer, shall serve written notice on all parties of the date, time and place of the oral argument. The hearing officer may direct that oral argument be made by telephone conference call. The hearing officer may order that the proceedings be recorded.
(e) The hearing officer shall issue a written order deciding any motion, unless the motion is made during the course of the hearing on the merits while on the record. The hearing officer may request that the prevailing party prepare a proposed order.
Note: Authority cited: Sections 39600, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.7. Form of Pleadings.
(a) Except as otherwise expressly provided in this article or by the hearing officer, there are no specific requirements as to the form of documents filed in a proceeding under these rules.
(b) The filing party or its representative shall sign the original of any pleading, letter, document, or other writing (other than an exhibit). The signature constitutes a representation by the signer that it has read the document, that to the best of its knowledge, information and belief, the statements made therein are true, and that it has not filed the document for the purpose of delay.
(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, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.8. Motion to Intervene.
(a) Any person may file a motion to intervene.
(b) The hearing officer shall grant, as a matter of right, a timely written motion to intervene filed by an interested party to the determination for which review has been requested.
(c) As to other persons, the hearing officer may grant such a motion to intervene if all of the following conditions are satisfied:
(1) The motion is in writing, with copies served on all parties named in the request for review.
(2) The motion is made as early as practicable.
(3) The motion states facts demonstrating that the proceeding will substantially affect the requesting person's legal rights, duties, privileges, or immunities.
(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.
(d) Upon a motion filed under paragraph (b) or (c) being 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 intervenor's participation in settlement negotiations.
Note: Authority cited: Sections 39600, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.9. 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, 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, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.10. 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 state board shall pay the cost of interpreter services 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, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Sections 11425.10, 11435.25, 11435.30 and 11435.55, Government Code; Section 751, Evidence Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.11. Authority of Hearing Officers.
(a) The hearing officer shall have authority to review matters arising under Health and Safety Code section 43105.5 and title 13, CCR, section 1969(k). Such authority shall include those matters in which:
(1) A motor vehicle manufacturer has contested a notice to comply that has been issued by the Executive Officer because the motor vehicle manufacturer has allegedly failed to comply with the provisions of section 43105.5 or the implementing regulations, title 13, CCR, section 1969; (continued)