Occasionally, a party will try to get around the finality of a decision by making a “collateral attack” on its validity in a separate proceeding. That can work if you are attacking the jurisdiction of the tribunal to issue the prior ruling, but otherwise . . . well, I haven’t seen it work. (But there may be a case out there.) The plaintiffs in Bowman v. California Coastal Commission, case no B243015 (2d. Dist. March 18, 2014) were unusually imaginative in their attempt. Plaintiffs owned a coastal property. Their predecessor had applied for a coastal development permit to refurbish the residence on the property. After his death, his successors (plaintiffs)…
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Know your route of review . . . and when to invoke it
If you don’t know your route of review and when to invoke it, you end up like the plaintiff in Tejon Real Estate, LLC v. City of Los Angeles, B247255 (2d Dist. January 23, 2014). In fact, not only did that plaintiff fail to seek review properly, it never even got a final determination subject to review. The plaintiff wanted to build a residence on a vacant lot and received an informal opinion from the fire department that it could not build a residence unless a fire hydrant was installed within 300 feet of the property. It then got an estimate from the city Department of Water & Power (“DWP”)…
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A standard of review that’s a mouthful
Appellate Attorney Jeanne Collachia is both witty and correct with this statement on her website: “Just like there are three things you need to know about real estate, there are three things you need to know about appeals — Standard of Review — Standard of Review — Standard of Review.” Naturally, I have stressed the standard of review too, with many posts at least touching on subtleties in the standard of review or disputes over which standard applies. Determining the applicable standard can sometimes be tricky. Sometimes, multiple standards apply, each applicable to a different stage of reasoning. Now, imagine you’re an accountant representing himself on a writ of administrative…
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Labor Commissioner’s Superior Court action pulls the rug out from under an employer’s writ petition
The recent decision in American Corporate Security, Inc. v. Labor Commissioner, case no. C070504 (3d Dist. Sept. 10, 2013, published Sept. 27, 2013) is an important demonstration of one of the obstacles to writ review of discriminatory discharge decisions of the Labor Commissioner under Labor Code section 98.7, subdivision (e).. When an employer seeks writ review of such a decision, the employer must show that it has “no other plain, speedy and adequate remedy.” That’s what is clearly depicted on the Labor Law Compliance Center federal labor posters distributed all over the country. This is what ACS alleged, having exhausted its route of administrative appeal (the Acting Director of the…
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Collateral Estoppel and the Exhaustion Doctrine
Must a whistleblower whose claim is denied at the administrative level exhaust his judicial remedies by petitioning for mandamus in the Superior Court before he may file a civil suit under the Whistleblower Act? That was the apparent question in CALPERS v. Superior Court, case no. C054168 (3d Dist. Feb. 15, 2008), where CALPERS contended that its demurrer to the civil suit should have been upheld because the plaintiff, whose whistleblower administrative claim had been denied by the State Personnel Board, did not challenge the SPB executive officer’s findings by petitioning for mandamus. The answer is, “it depends.” That’s because the issue isn’t so much whether the statute requires exhaustion…
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Reviewing State Administrative Agency Decisions
If you wanted to find out the scope of review and the standards of review employed in administrative mandate proceedings generally, you could do a lot worse than look at the discussion at pages 13-14 of Schutte & Koerting, Inc. v. Regional Water Quality Control Board, case no. D048830 (4th Dist. Jan. 16, 2008), which sums it up very nicely.
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Exclusionary Rule Beats the Criminal Rap — but not the Administrative One
A driver driving his own car is pulled over by a police officer who, because of outdated police records, believes the car is stolen. While detaining the driver during the check on the ownership of the vehicle, the officer notes signs of drinking and the driver admits to having been drinking. He is arrested and later blows a 0.12 breathalyzer. In his criminal prosecution, he moves to suppress all evidence obtained or seized in connection with the traffic stop. Easy call. Case dismissed. When the DMV holds an administrative review of his driving privileges, the driver makes the same motion. Denied, and driver’s license is suspended for a year. The…