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(2) The Executive Officer has requested review and issuance of a compliance order against a motor vehicle manufacturer who has failed to request review of a notice to comply and has not filed a compliance plan as required by the notice to comply; and
(3) The Executive Officer has rejected a compliance plan submitted by a motor vehicle manufacturer pursuant to section 43105.5(e); and
(4) The Executive Officer has requested review and issuance of a compliance order against a motor vehicle manufacturer that has failed to comply with the terms of an approved compliance plan.
(b) Except as may be specifically limited in title 13, CCR, section 1969, in any matter subject to review 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, decisions, and appropriate remedies, including penalties, as may be necessary for the full adjudication of the matter.
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 11181-11182 and 11425.30, Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.12. Disqualification.
(a) The hearing officer 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 by filing an affidavit or declaration under penalty of perjury. A request against the 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. The affidavit or declaration must state with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. The issue shall be determined, in the first instance, by the hearing officer against whom the request for disqualification has been filed.
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, 11425.30, 11425.40 and 11512, Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.13. 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.
(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 60060.5.
(c) For the purpose of this section, a proceeding is pending from the time that a request for review is first filed with the hearing office.
(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.
(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 the employee is another 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. The prohibitions of paragraph (a) that apply to the hearing officer shall also apply to such other employees employed in the hearing office. Communications permitted under this paragraph shall not furnish, augment, diminish, or modify the evidence in the record.
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 and 11430.70-11430.80, Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.14. 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 has been concluded.
(e) Receipt of ex parte communications may be cause for disqualification of the hearing officer.
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 and 11430.10 et. seq., Government Code; Section 1969, title 13, California Code of Regulations; Sections 11425.10 and 11430.10 et. seq., Government Code; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.15. Requests for Review by a Motor Vehicle Manufacturer.
(a) A motor vehicle manufacturer may file a request that a hearing officer review an Executive Officer determination to issue a notice to comply against the motor vehicle manufacturer, pursuant to Health and Safety Code section 43105.5(e) and title 13, CCR, section 1969(j).
(b) The motor vehicle manufacturer shall file the request for hearing within 30 days from the date that the Executive Officer issues a determination to issue a notice to comply. The hearing officer may, for good cause, extend the time for such filing.
(c) A failure to file a timely request for hearing of the Executive Officer's determination to issue a notice to comply, without alternatively serving on the Executive Officer a compliance plan as required by title 13, CCR, section 1969(j)(8), will result in the Executive Officer determination becoming final. The manufacturer's failure to pursue administrative review could subject the manufacturer to penalties pursuant to Health and Safety Code section 43105.5(f) and title 13, CCR, section 1969(l).
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 60060.16. Requests for Review by the Executive Officer.
(a) The Executive Officer shall file a request for hearing officer review and issuance of a compliance order when:
(1) The Executive Officer has issued a notice to comply against a manufacturer and the manufacturer has failed to either request administrative review of the determination, or, in the alternative, to submit a compliance plan as required under Title 13, CCR, section 1969(j)(8). The Executive Officer shall file the request for review within 30 days from the last day that the manufacturer had to file either a request for review of the determination with the hearing office or submit a compliance plan to the Executive Officer.
(2) A motor vehicle manufacturer has submitted a compliance plan pursuant to Title 13, CCR, section 1969(j)(8), and the Executive Officer has determined pursuant to the procedures set forth in section 1969(j)(9) that the compliance plan is unacceptable. The Executive Officer shall file the request for review within 30 days from the date that he or she issues the determination.
(3) A motor vehicle manufacturer has had a compliance plan approved pursuant to Title 13, CCR, section 1969(j)(9) but has failed to comply with the terms of the plan.
(b) The hearing officer may, for good cause, extend the time for such filing.
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 60060.17. Content of a Request for Review.
A request for review is not required to follow any particular form or format. But the request for review shall include all of the following.
(a) The signature of the requesting party or its designated representative.
(b) Copies of and specific reference to the respective determination of the Executive Officer that is the subject of the request for review (i.e., the notice to comply issued against the motor vehicle manufacturer, or the determination rejecting the motor vehicle manufacturer's compliance plan).
(c) The correct business address of the requesting party and, if applicable, the name and address of the party's designated representative.
(d) The name and address of any interested party identified in the challenged determination.
(e) A statement of the circumstances or arguments that are the basis of the request for hearing, with specific reference to the evidence that was before the Executive Officer that supports such arguments.
(f) A statement of the proposed relief sought by the requesting party.
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 60060.18. Notice of Receipt of Request for Review.
(a) Upon receipt of a timely request for review, the hearing office shall review the request for completeness.
(b) If the request does not include the information required under section 60060.17, the hearing office shall immediately acknowledge receipt of the request and notify the requesting party of the deficiencies that must be corrected before the request for hearing may be deemed filed and docketed. The requesting party shall have 10 days from the date of mailing the notice of deficiencies to submit a complete request for hearing. If the deficiencies are not corrected within the 10 days or the time provided for initially filing the request in sections 60060.15 through 60060.16, whichever is later, the underlying Executive Officer determination will become final.
(c) If the hearing office finds the request for hearing to be complete, it shall deem the request filed on the date that the request was received and notify the requesting party, the Executive Officer, and any identified interested party that a request for hearing has been filed.
(d) Except as provided in paragraph (f) below, the notice shall inform the parties that:
(1) Copies of these hearing procedures are available from the hearing office and that the procedures set forth at Government Code section 11500 et seq. are not applicable.
(2) Interested parties may file a motion to intervene pursuant to these rules if they wish to participate in the hearing.
(3) The parties shall submit to the hearing office responsive and reply arguments by the dates specified in these procedures.
(4) The parties have the right to be represented by counsel or other representative of their choosing and the right to an interpreter or other necessary accommodation.
(e) Upon being informed that the request for review is complete, the Executive Officer shall forward to the hearing officer, within 15 days from the date of service, a certified copy of the Executive Officer determination that is the subject of the request for review and the investigative record that was compiled during the Executive Officer's investigation.
(f) In those matters in which the Executive Officer has requested review of his or her determination to issue a notice to comply because the manufacturer has failed to contest the notice or, in the alternative, submit a compliance plan, the notice shall inform the parties that no hearing on the merits of the underlying Executive Officer determination will be held. Instead the notice shall inform the parties that the hearing officer will issue a compliance order against the motor vehicle manufacturer within 30 days of receipt from the Executive Officer of a certified copy of the Executive Officer determination and investigative record.
Note: Authority cited: Sections 39600, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Part 5, Health and Safety Code; Section 11425.10, Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.19. Response to Request for Review.
Any party opposed to a filed request for review shall file a response within 30 days after service of the notice of filing by the hearing office. The response shall be in writing and address the issues raised in the request for hearing. The response should include any rebuttal to the issues and arguments raised by the party requesting review, with specific reference to the investigative record that was before the Executive Officer when he or she made a determination that is the subject of the review before the hearing officer. The response shall be in the form of a declaration signed under penalty of perjury.
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 60060.20. Reply.
Within 15 days of receipt of the last submitted response, the party requesting review may file a reply responding to the contentions raised in any response. The reply shall be in the form of a declaration signed under penalty of perjury.
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 60060.21. Extensions of Time for Submitting a Response or Reply.
The time period for submitting a response required under section 60060.19 or a reply under section 60060.20 may be extended:
(1) By stipulation of the parties for 30 additional days to allow the parties to conduct informal settlement negotiations; or
(2) Upon motion to the hearing officer, who may extend the time period for up to 30 days, if the moving party can show good cause and if the other parties are not prejudiced by a delay.
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 60060.22. Stays Pending Issuance of Hearing Officer's Decision.
Pending the hearing officer issuing its decision, a motor vehicle manufacturer contesting an Executive Officer determination to issue a notice to comply or to reject a compliance plan submitted in response to a notice to comply shall not be required to take any action in response to the challenged Executive Officer determination.
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 60060.23. Schedule of Review Proceedings.
(a) Upon receipt of a request for review, the administrative hearing office of the state board shall assign an administrative law judge to be the hearing officer, 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 for assignment.
(b) With the consent of the parties, hearings shall be conducted based on the written record certified by the Executive Officer and the written submissions of the parties, whenever possible.
(c) For matters that are to be decided based upon the submitted written record, the hearing officer shall serve upon the parties a schedule setting forth the date that the record will be closed and submitted for decision.
(d) For hearings requiring personal appearances, the hearing officer shall serve upon the parties the dates scheduled for hearing for the purpose of taking evidence. Such hearing shall not be set earlier than 30 days from the date that the notice is served on all parties.
(e) Upon either a motion of the hearing officer or any party, the hearing officer may grant such delays or adjustments to the schedule for the review proceedings as may be necessary or desirable in the interest of fairness. In filing a motion, the moving party shall file the request not less than five days prior to the date set for the action covered by the request and shall submit such evidence to establish good cause for the requested delay or adjustment to the schedule. If the hearing officer orders a delay or adjustment to schedule, he or she shall provide written notice to 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; Sections 11509 and 11440.30, Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.24. 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 review and decision:
(1) Any number of proceedings involving the same parties; and
(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 review proceedings will be conducive to expedition and economy, order a separate review proceeding of any issue or any number of issues, including issues raised in a party's response to a request for hearing.
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 60060.25. Discovery.
(a) The provisions of this section provide the exclusive right to, and method of, discovery as to any proceeding governed by these review procedures. Nothing in this section prohibits the parties from voluntarily stipulating to exchange any information that they deem appropriate. This section does not authorize the inspection or copying of, any writing or thing that is privileged from disclosure by law or protected as part of an attorney's work product.
(b) No discovery is available to the parties in matters forwarded to the hearing officer for issuance of compliance orders pursuant to section 60060.16(a)(1).
(c) For other hearings, within 30 days from the date of service of the notice of filing, a party may serve on any other party to the proceeding a written request, for the following:
(1) 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
(2) 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 another party to the proceeding and would be admissible in evidence. This includes the following information from the investigative file compiled by the Executive Officer: (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.
(d) The parties subject to the requirements of paragraph (c) 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.
(e) 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.
(f) A party may file a motion requesting that the hearing officer allow further discovery. The motion shall specify the proposed method of discovery that it would like to use and shall include affidavits describing in detail the nature of the information that the requesting party seeks through discovery, the relevance and probative value of the information, proposed time and place of the discovery (if applicable), and why the need for the information was not previously raised with the Executive Officer during his or her consideration of the determination under review. After fully considering the arguments of the parties, the hearing officer may order such discovery that will promote a full and fair hearing. The hearing officer's order shall set forth the form and method of permissible discovery and the time and place for its occurrence.
(g) 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, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference:; Sections 43105.5(e) and (f), Health and Safety Code; Sections 11189 and 11507.6, Government Code; Section 915(b), Evidence Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.26. Contempt.
If any person in proceedings before the hearing officer disobeys or resists any lawful order or, if applicable, refuses to take the oath or affirmation as a witness or thereafter refuses to be examined, or is guilty of misconduct during a hearing, the hearing officer may certify the facts to the superior court in and for the county where contempt proceedings are held pursuant to Government Code section 11455.20.
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 11455 and 11525, Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.27. 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 and 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 shall be in writing and shall set forth the factual findings that 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, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Sections 11455.30 and 11525, Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.28. 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 the calendar or such other appropriate action to insure the rights and interests of all parties under Health and Safety Code section 43105.5 and title 13, CCR, section 1969 et seq.
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 11455.30 and 11525, Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.29. Conduct of Hearings.
(a) All hearings shall be presided over by a hearing officer who shall conduct a full and fair hearing in which all parties have a reasonable opportunity to be heard and to present evidence.
(b) All hearings shall be conducted in the English language, although any party may request the assistance of an interpreter.
(c) In matters brought before the hearing officer pursuant to a request for review filed by the Executive Officer under section 60060.16(a)(1), no hearing on the merits of the underlying Executive Officer determination issuing a notice to comply shall be held. At the hearing officer's discretion, the hearing officer may issue an order to comply without convening a formal hearing.
(d) For all other hearings, 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.
(5) Call and examine an opposing party as if under cross-examination, even if that party has not testified on its own behalf.
(e) The burden of proof and of going forth with evidence in hearings covered by paragraph (c) shall be as follows.
(1) In all hearings for the review of Executive Officer determinations to issue a notice to comply against a motor vehicle manufacturer, to reject a motor vehicle manufacturer's compliance plan, or to seek enforcement of a motor vehicle manufacturer's failure to comply with the terms of an approved compliance plan, the burden of proof and of going forward shall be on the Executive Officer.
(2) At the conclusion of Executive Officer's case-in-chief, the motor vehicle manufacturer has the burden of producing evidence to show that no basis exists to support the Executive Officer determination that is under review.
(3) At the close of the motor vehicle manufacturer's presentation of evidence, the parties respectively have the right to introduce rebuttal evidence that is necessary to resolve disputed issues of material fact, subject to any limits imposed by the hearing officer pursuant to subparagraph (f)(1) below.
(f) 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.
(g) 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.
(h) The hearing officer shall base its decision as to whether a motor vehicle manufacturer is not in compliance or whether the Executive Officer properly rejected a manufacturer submitted compliance plan upon a preponderance of the evidence.
(i) Hearings shall be recorded electronically or by a court reporter. The record made by the Administrative Hearing Office shall be the official record 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 record 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, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Sections 11455.30 and 11525, Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.30. Evidence.
(a) Oral testimony shall be taken only under oath or affirmation.
(b) The hearing need not be conducted in accordance with technical rules of evidence. Rather, the hearing officer shall admit evidence that is the type of evidence that responsible persons are accustomed to relying upon in the conduct of serious affairs. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but upon timely objection shall not be sufficient by itself to support a finding unless it would be admissible over objection in a civil court action.
(c) The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized.
(d) Regarding evidence claimed to be trade secrets or other confidential information, the hearing officer will defer to the findings and conclusions of law made by the superior court pursuant to Health and Safety Code section 43105.5(b) and title 13, CCR, section 1969(i). The hearing officer shall preserve the confidentiality of information determined to be a trade secret and may make such orders as may be necessary, including considering such information in a closed meeting.
(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 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, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Sections 451 and 452, Evidence Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.31. Evidence by 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 declaration which the proponent proposes to introduce in evidence, together with a notice as provided in paragraph (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 declarant the opposing party's right to cross-examine such declarant is waived and the declaration, if introduced in evidence, shall be given the same effect as if the declarant had testified orally. If an opportunity to cross-examine a declarant is not afforded after a request is made as herein provided, the hearing officer may allow the declaration to be introduced, but it shall only be given the same effect as other hearsay evidence.
(b) The notice referred to in paragraph (a) shall be a separate document concurrently served with the declaration, entitled "Notice of Intent to Use Declaration 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 declaration of [insert name of 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 declarant unless you notify [insert name of the proponent or representative] at [insert address] that you wish to cross-examine the declarant. To be effective, your request must be mailed or delivered to [insert name of proponent or representative] on or before [insert a date 7 days after the date of mailing or delivery of the declaration to the opposing party]."
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 60060.32. Decisions and Orders of the Hearing Officer.
(a) Except for compliance orders issued pursuant to or after a request for hearing filed under section 60060.16(a)(1) or otherwise ordered, all proceedings shall be submitted at the time identified by the hearing officer in the schedule for review that has been served upon the parties. Within 30 days of the matter being submitted, the hearing officer shall make findings upon all facts relevant to the issues under review, and file a written decision and order setting forth the reasons or grounds therefore.
(b) If the decision finds that the motor vehicle manufacturer has failed to comply with any of the requirements of Health and Safety Code section 43105.5 or title 13, CCR, section 1969, including the obligation to submit an acceptable compliance plan, the decision shall order the motor vehicle manufacturer to come into compliance within 30 days of the effective date of the decision.
(1) The order shall further provide that if the motor vehicle manufacturer fails to comply within the 30-day time period set forth above, the hearing officer may order that the motor vehicle manufacturer be assessed penalties in an amount not to exceed $25,000 per day per violation, commencing of the 31st day of noncompliance and continuing until the violation is corrected.
(2) For purposes of this section, a finding by the hearing officer that a motor vehicle manufacturer has failed to comply with the requirements of Health and Safety Code section 43105.5 and title 13 CCR, section 1969 et seq., including the failure to submit a timely compliance plan, shall be considered a single violation.
(c) A compliance order issued pursuant to a request for review filed under section 60060.16(a)(1) shall be in writing and issued within 30 days from the date the hearing officer notified the parties that it is in receipt of the documents forwarded by the Executive Officer. The order shall require that the motor vehicle manufacturer, within 30 days from the date of the order, correct the noncompliance identified by the Executive Officer in its notice to comply. The hearing officer may order the assessment of penalties for continuing noncompliance after the 30-day grace period consistent with the provisions of paragraphs (b)(1) and (2) above.
(d) The decision or order of the hearing officer is the final decision of the ARB and is effective on the date of issuance.
(e) A copy of the decision or order shall be served on each party or representative.
(f) Within five days of the filing of any decision or order, a party may file a written request that the hearing officer correct a mistake or clerical error.
(1) Pursuant to the party's request or on the hearing officer's own motion, the hearing officer may issue a revised decision or order correcting a mistake or clerical error with respect to any matter respectively covered therein. If the hearing officer makes such a determination, he shall provide written notice to the parties.
(2) A motion filed by a party under this subparagraph shall be deemed denied if the hearing officer has taken no action to address the request within 15 days of filing of the request. In such a case, the decision shall become effective 15 days after the motion was filed.
(3) Within 15 days notifying the parties of his or her intent to modify the decision or order, the hearing officer shall serve a copy of any modified decision or order on each party that had previously been served with the original. The modified decision or order shall supersede the previously served document. The date of service of the modified decision or order shall become the effective date of the document.
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 11425.50, Government Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.33. Penalty Assessment.
In determining the appropriate conditional daily penalties that a motor vehicle manufacturer may be subject to under Health and Safety Code section 43105.5(f) and these regulations, the hearing officer shall consider the following factors.
(a) The extent of noncompliance by the motor vehicle manufacturer.
(b) The harm caused by the noncompliance to the covered person and other persons, as well as any violations to public health and safety and to the environment.
(c) The nature and persistence of the noncompliance.
(d) The compliance history of the motor vehicle manufacturer, including the history of past noncompliance.
(e) The efforts made to comply, and any special circumstances preventing or delaying compliance.
(f) The cooperation of the motor vehicle manufacturer during the course of the Executive Officer's investigation.
Note: Authority cited: Sections 39600, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Section 43105.5, Health and Safety Code; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60060.34. Judicial Review.
(a) Except as provided in paragraph (b) below, a party adversely affected by the final decision of the hearing officer 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. Such petition shall be filed within 30 days after the order or decision becomes final.
(b) A motor vehicle manufacturer adversely affected by a compliance order issued pursuant to section 60060.33(a) may only request judicial review of a penalty assessment and not the merits of the underlying notice to comply, which the manufacturer never itself contested.
(c) 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, 39601 and 43105.5(e) and (f), Health and Safety Code. Reference: Sections 43105.5(e) and (f), Health and Safety Code; Section 1094.5, California Code of Civil Procedure; Section 1969, title 13, California Code of Regulations; andMathews v. Eldridge (1976) 424 U.S. 319.
s 60065.1. Applicability.
(a) This article governs hearings to review complaints issued by the state board pursuant to Health and Safety Code sections 42410, 43023, and 43028. The procedures outlined here do not apply to citations that are subject to review under Article 5, section 60075.1, et seq.
(b) The provisions of this article apply only to complaints filed on or after the effective date of this article.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; Sections 60075, et seq., title 17 and 2048, title 13, California Code of Regulations; and Sections 11500, et seq., Government Code.
s 60065.2. Definitions.
(a) The definitions applicable to these rules include those set out in the Health and Safety Code (commencing with section 39010).
(b) The following definitions also apply:
(1) "Administrative record" means all documents and records timely filed with the hearing office, pursuant to section 60065.4 and the time deadlines of these rules, including pleadings, petitions, motions, and legal arguments in support thereof; all documents or records admitted into evidence or administratively noticed by the hearing officer; all official recordings or written transcripts of hearings conducted; and all orders or decisions issued by the hearing officer or executive officer regarding the complaint at issue; administrative record does not include any prohibited communications as defined in section 60065.13, and any settlement discussions or offers of settlement pursuant to section 60065.25.
(2) "Complainant" means the state board, acting through any of its employees that have been authorized to investigate, issue, and prosecute a complaint under this article.
(3) "Complaint" means a document, other than a citation issued for a Class I violation pursuant to title 17, California Code of Regulations, section 60075.1 et. seq., issued by the complainant that seeks administrative civil penalties as an alternative to judicial civil penalties.
(4) "Consent Order" means an order entered by the hearing officer in accordance with the settlement agreement of the parties.
(5) "Days" means calendar days.
(6) "Default" means the failure of any party to take the steps necessary and required by these regulations to further the hearing towards resolution, resulting in a finding by the hearing officer of forfeiture of the cause of action against that party.
(7) "Discovery" refers to theprocess set forth in section 60065.26 allowing one party to request and obtain information relevant to the complaint proceedings. The scope of discovery is limited by the express terms of that section. (continued)