Hansen v. Bd. of Registered Nursing
| Decision Date | 16 August 2012 |
| Docket Number | No. D060622.,D060622. |
| Citation | 12 Cal. Daily Op. Serv. 9414,208 Cal.App.4th 664,2012 Daily Journal D.A.R. 11372,145 Cal.Rptr.3d 739 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Kim Rachel HANSEN, Plaintiff and Appellant, v. BOARD OF REGISTERED NURSING, Defendant and Respondent. |
OPINION TEXT STARTS HERE
See 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 300 et seq.
Kim R. Hansen, in pro. per.; and Gary Harrison for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alfredo Terrazas, Assistant Attorney General, James M. Ledakis and Nicole R. Trama, Deputy Attorneys General, for Defendant and Respondent.
Kim Rachel Hansen filed a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) to challenge the decision of the Board of Registered Nursing (the Board) to revoke her registered nurse license (hereafter license). On the Board's demurrer, the trial court ruled the petition was untimely; and after Hansen did not amend within the time allotted, the court entered a judgment dismissing the petition with prejudice. Hansen appeals, contending she did not learn of the revocation until after the limitations period for filing the petition had expired. We affirm.
Hansen obtained a license from the Board in 1987. During a hospitalization in 2009, she spoke to a representative of the Board and agreed to participate in a diversion program for nurses and other professionals having problems with alcohol consumption. Hansen, however, refused to enroll in the program.
Following her refusal to participate in the diversion program, the Board filed an accusation against Hansen charging her with unprofessional conduct and seeking suspension or revocation of her license. The Board alleged Hansen engaged in unprofessional conduct by failing to participate in the diversion program and by using alcohol to an extent dangerous to herself or others.
The Board sent a copy of the accusation to Hansen at her address of record by certified mail on October 1, 2010. Hansen, however, had moved from that address in July 2009, but had not notified the Board of her new address. As a result, Hansen did not receive the copy of the accusation.
Resolution of the accusation proceeded by way of default. The Board issued a decision and order (hereafter decision) in which it found the allegations of the accusation true and revoked Hansen's license effective January 24, 2011.
The Board sent a copy of the decision to Hansen at her address of record by certified mail on December 22, 2010. Again, because she had moved but not notified the Board of her new address, Hansen did not receive the copy of the decision.
On February 27, 2011, while viewing the Board's Web site for an unrelated reason, Hansen learned for the first time that the Board had revoked her license.1 On March 7, 2011, Hansen filed a motion with the Board asking it to vacate or reconsider its decision. In a letter dated May 9, 2011, the Board informed Hansen it could not grant her motion because the revocation had become final.
On May 20, 2011, Hansen petitioned the trial court for relief. She complained that the Board denied her notice and an opportunity for a fair hearing and abused its discretion in revoking her license. Hansen sought a writ of administrative mandate directing the Board to vacate its decision revoking her license and to hear the matter on the merits.
The Board demurred on the ground the petition was untimely. According to the Board, Government Code section 11523 required Hansen to file the petition within 30 days of the effective date of her license revocation, i.e., within 30 days of January 24, 2011. Because she did not do so, the Board argued, her petition was time-barred and subject to dismissal.
The trial court agreed Hansen's petition was untimely and sustained the Board's demurrer with 10 days leave to amend. When Hansen did not amend the petition, the court entered a judgment dismissing the petition with prejudice.
The sole issue on appeal is whether Hansen's petition was timely filed. As we shall explain, it was not.
The Administrative Procedure Act (Gov.Code, § 11500 et seq.) sets strict time deadlines for judicial challenges to administrative decisions. For a licensee of the Board to challenge an adverse licensing decision by petition for writ of administrative mandate, “the petition shall be filed within 30 days after the last day on which reconsideration can be ordered.” (Gov.Code, § 11523; see Morton v. Board of Registered Nursing (1991) 235 Cal.App.3d 1560, 1565, 1 Cal.Rptr.2d 502( Morton ) [].) If, however, the licensee “within 10 days after the last day on which reconsideration can be ordered ... requests the agency to prepare all or any part of the record, the time within which a petition may be filed shall be extended until 30 days after its delivery to him or her.” (Gov.Code, § 11523.) “The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30–day period or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration.” (Gov.Code, § 11521, subd. (a).)
Thus, there are two 30–day deadlines that apply to a licensee's challenge to the Board's revocation of a license. First, unless the Board grants a stay to allow the licensee to apply for reconsideration, Government Code section 11521 “provides 30 days after delivery or mailing of the decision to the licensee, or on the effective date of the decision if earlier, as the last day on which the decision may be reconsidered.” ( Miller v. Board of Medical Quality Assurance (1987) 193 Cal.App.3d 1371, 1374, fn. 4, 238 Cal.Rptr. 915( Miller ); accord, Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1262 & fn. 2, 8 Cal.Rptr.3d 532, 82 P.3d 740( Bonnell ).) Second, unless the licensee timely requests preparation of the administrative record, the licensee must file a petition for writ of administrative mandate within 30 days of the last day for reconsideration if she wishes to challenge the Board's decision in court. (Gov.Code, § 11523; Jahangiri v. Medical Bd. of California (1995) 40 Cal.App.4th 1657, 1661–1662, 48 Cal.Rptr.2d 187.)
Hansen did not meet these deadlines. The Board served its decision and order revoking Hansen's license by sending a copy to her address of record via certified mail on December 22, 2010. Service by this method is authorized by law. (Gov.Code, §§ 11505, subd. (c) [], 8311 [whenever statute requires agency to mail document by registered mail, mailing by certified mail “shall be deemed to be a sufficient compliance”]; Bus. & Prof.Code, §§ 100, 101, subd. (a), 136, subd. (a) []; Cal.Code Regs., tit. 16, § 1409.1 [].) Since the Board did not grant a stay to allow Hansen to apply for reconsideration, its power to order reconsiderationexpired on January 21, 2011, 30 days after it mailed its decision. (Gov.Code, § 11521, subd. (a); Compton v. Board of Trustees (1975) 49 Cal.App.3d 150, 154, 122 Cal.Rptr. 493( Compton ).) Hansen therefore had 30 days from that date, i.e., until February 21, 2011 (because Feb. 20, 2011, was a Sunday; see Code Civ. Proc., §§ 10, 12a, subd. (a)), to file her petition for writ of mandate. (Gov.Code, § 11523.) She did not, however, file the petition until May 20, 2011. Hence, Hansen “was late; she was not entitled to any relief as a matter of law.” ( Morton, supra, 235 Cal.App.3d at p. 1567, 1 Cal.Rptr.2d 502.)2
Hansen argues her late filing should be excused for several reasons: (1) the 30–day limitations period of Government Code section 11523 was tolled until she actually discovered the revocation of her license; (2) she established “good cause” for the late filing and is entitled to relief under Code of Civil Procedure section 473; (3) the Board's delays caused the late filing; and (4) she never received the notice or hearing that due process requires. None of these arguments is persuasive.
First, Hansen's attempt to invoke the discovery rule is unavailing. She has cited no authority, and we have found none, applying the discovery rule to toll the 30–day period of either section 11521 or section 11523 of the Government Code. But even if we assume, without deciding, that the discovery rule applies, it would not make Hansen's writ proceeding timely. Under the discovery rule, the accrual of a cause of action is postponed and the running of the associated statute of limitations is tolled until the plaintiff discovers or has reason to discover the cause of action. (E.g., Quarry v. Doe I (2012) 53 Cal.4th 945, 960, 139 Cal.Rptr.3d 3, 272 P.3d 977.) Here, Hansen actually discovered on February 27, 2011, that the Board had revoked her license. If that discovery triggered the running of the 30–day period of Government Code section 11523, then she had until March 29, 2011, to seek judicial review of the Board's decision by filing a petition for writ of administrative mandate. If instead Hansen's discovery triggered the running of the 30–day period of Government Code section 11521, then the time for reconsideration by the Board expired on March 29, 2011; and under Government Code section 11523, she had 30 days after that date, i.e., until April 28, 2011, to file a petition in court. Either way, Hansen's petition, filed May 20, 2011, was untimely.3
Second, Hansen's...
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