Romero v. California State Labor Commissioner

• Decision Date: 15 October 1969
• Citation: Romero v. California State Labor Commissioner, 81 Cal.Rptr. 281, 276 Cal.App.2d 787 (Cal. App. 1969)
• Court: California Court of Appeals
• Parties: Pedro R. ROMERO, Petitioner and Respondent, v. CALIFORNIA STATE LABOR COMMISSIONER, Respondent and Appellant. Civ. 12055.

Page 281

81 Cal.Rptr. 281

276 Cal.App.2d 787

Pedro R. ROMERO, Petitioner and Respondent, v. CALIFORNIA STATE LABOR COMMISSIONER, Respondent and Appellant.

Civ. 12055.

Court of Appeal, Third District, California.

Oct. 15, 1969.

Scott K. Carter, Andrew H. D'Anneo, Louis Giannini, Douglas M. Phillips, San Francisco, for respondent-appellant.

Foley, Hughes & Gifford, San Jose, for petitioner-respondent.

BRAY, Associate Justice (Assigned).

Appeal by appellant Labor Commissioner from a superior court order granting a writ of mandate compelling him to answer interrogatories propounded by respondent Romero.

QUESTION PRESENTED

In this administrative disciplinary proceeding are sections 11507.5 and 11507.6 of the Government Code applicable and what interrogatories is appellant Labor Commissioner required to answer?

RECORD

By an amended accusation filed May 12, 1967, appellant commissioner charged respondent, a licensed farm labor contractor, with certain misdemeanors which are grounds for revocation of license. ¹

A hearing officer recommended in a proposed decision that respondent be exonerated of all charges. Appellant did not adopt the proposed decision but instead referred the matter to another hearing officer to take additional evidence.

Before a second hearing respondent served appellant with the written interrogatories set forth in footnote 2, ² requesting that they be answered 'under oath pursuant to Section 2030 of the California Code of Civil Procedure.' Appellate refused to answer, stating that '(a)lthough * * * (appellant) recognized there to exist a right to discovery in Administrative Proceedings,' appellant did not feel there existed any right to interrogatories. Appellant offered to give, on written request but not on interrogatories, the names, addresses and occupations of each person intended to be called as a witness.

Thereupon, respondent petitioned the superior court for a writ of mandate to compel appellant to answer the interrogatories. After a hearing the court granted a peremptory writ compelling appellant to answer the interrogatories but stayed the pending disciplinary proceedings until after this appeal is determined.

SECTIONS 11507.5 AND 11507.6

The judgment was entered May 14, 1968. Then sections 11500 et seq. of the Government Code, the Administrative Procedure Act, contained no provision authorizing the service of interrogatories upon an adverse party such as is found in section 2030 of the Code of Civil Procedure. Nor does it now contain such a provision. The Administrative Procedure Act then and now provided for the taking of the Deposition of any material witness upon an order of the accusing agency after a verified showing, inter alia, that the witness would be unable or could not be compelled to attend the disciplinary hearing. (Gov.Code, § 11511.) However, this latter provision did not afford Discovery even by the limited mode of depositions. (Shively v. Stewart (1966) 65 Cal.2d 475, 479, 55 Cal.Rptr. 217, 427 P.2d 65.)

Except for disciplinary proceedings before the State Bar, which is Sui generis and functions as an arm of the Supreme Court in such matters (Brotsky v. State Bar (1962) 57 Cal.2d 287, 298--301, 19 Cal.Rptr. 153, 368 P.2d 697, 94 A.L.R.2d 1310), the Civil Discovery Act (Code Civ.Proc., § 2016 et seq.) does not apply to administrative adjudication. (See Shively v. Stewart, supra; Everett v. Gordon (1968) 266 A.C.A. 732, 72 Cal.Rptr. 379; Comments, Discovery in State Administrative Adjudication (1958), 56 Cal.L.Rev. 756; and Discovery Prior to Administrative Adjudications--A Statutory Proposal (1964) 52 Cal.L.Rev. 823.)

As will hereinafter appear, the courts provided a limited form of discovery in administrative proceedings, somewhat akin to discovery allowed in criminal proceedings. The trial court determined this proceeding under the law as it then stood. The appeal was filed in this case on June 13, 1968. Effective November 13, 1968, sections 11507.5 and 11507.6 were added to the Government Code. Those sections are applicable to disciplinary proceedings before the Labor Commission. (Gov.Code, § 11501.)

In general, section 11507.6 by omitting the requirement of showing 'good cause' broadens the scope of administrative discovery beyond that theretofore provided by the courts. ³

'* * * Statutes affecting only matters of procedure are applicable to actions which are pending when the statute becomes effective.' (National Auto. & Cas. Ins. Co. v. Downey (1950) 98 Cal.App.2d 586, 590, 220 P.2d 962, 965.) 'An action is deemed to be pending from the time of its commencement until its final determination upon appeal, * * *.' (Code Civ.Proc., § 1049.)

Before determining the applicability to this proceeding of sections 11507.5 and 11507.6, it is well to determine the status of discovery in administrative proceedings before the enactment of those statutes and at the time of the issuance of the writ of mandate in the instant case.

The two cases dealing with discovery in administrative proceedings are Shively v. Stewart, supra, 65 Cal.2d 475, 55 Cal.Rptr. 217, 427 P.2d 65, and Everett v. Gordon (1968) 266 A.C.A. 732, 72 Cal.Rptr. 379.

In Shively the petitioner sseeking discovery were licensed physicians facing criminal charges in administrative disciplinary proceedings which could have resulted in revocation of their licenses.

Finding that '(t)he criminal law analogy is appropriate,' the Supreme Court said, '(t)he Legislature's silence with respect to prehearing discovery in administrative proceedings does not mean, however, that it has rejected such discovery. Instead, as in the case of criminal discovery * * *, it has left to the courts the question whether modern concepts of administrative adjudication call for common law rules to permit and regulate the use of the agencies' subpoena power to secure prehearing discovery.' (65 Cal.2d at p. 479, 55 Cal.Rptr. at p. 219, 427 P.2d at p. 67.) Shively held that the petitioners there were entitled to subpoenas duces tecum for the production of written statements of material witnesses (alleged abortionists' patients and husbands of the latter) and copies of the petitioner's writings with respect to treatment given the women. The Supreme Court also held that the petitioners were not entitled to production of all reports and documents gathered by investigators and employees of the State Board of Medical Examiners because the petitioners' request amounted to no more than 'a wish for the benefit of all the information in the adversary's files,' and they had made no 'additional showing of need and specificity.' (P. 482, 55 Cal.Rptr. p. 221, 427 P.2d p. 69.)

In Everett v. Gordon, supra, 266 A.C.A. 732, 737, 72 Cal.Rptr. 379, 382, the court said, 'Shively v. Stewart * * * recognizes that, upon a proper showing being made, the accused in an administrative disciplinary proceeding, may depose an executive employee of a public agency for a Limited purpose.' The court of appeal then explained what such 'limited purpose' was by noting that 'the use of the word 'depositions' in * * * Shively was intended to be Limited in its application to the production of evidentiary material which the witness has in his possession or under his control.' (Id. at p. 738, 72 Cal.Rptr. at p. 382.) Using the analogy of the criminal law, Everett held that licensed real estate brokers were not entitled to take the depositions of material witnesses (a property owner and sale negotiator) for general discovery purposes. The court further said that the brokers would have the opportunity of showing good cause for the propounding of interrogatories to the Real Estate Commissioner who had instituted a disciplinary proceeding against them by accusation. The appeals court in Everett had none of the proposed interrogatories before it.

In cases where depositions can be used for administrative discovery, no logical reason exists why interrogatories cannot be used too for the production of evidentiary material which the commissioner has in his possession or under his control.

Comparing the discovery provided for in section 11507.6 with the discovery heretofore allowed by the courts in administrative matters (namely, discovery akin to that allowed in criminal matters), there is practically no difference between the two as to the information obtainable. The main difference between the two methods is that the code section eliminates the requirement of showing good cause for obtaining the information required by the section to be disclosed, while under the Shively rule, as to some of the information, good cause to receive it must be shown. We see no reason why the rule allowing application of procedural changes should not apply in this case.

Although section 11507.6 provides that requests for the information permitted by the statute are to be made within a certain 15-day period, and that period had expired before the enactment of the statute, there appears to be no reason why under the circumstances that limitation should not be disregarded.

Respondent requested that his interrogatories be answered under oath. We find no such oath requirement as to interrogatories under the Shively rule and hence no difference in that respect between the two procedures.

It should be pointed out that neither Shively nor Everett discuss the right to Interrogatories nor does section 11507.6 mention interrogatories. Both cases dealt with the discovery of information by subpoena duces tecum to obtain depositions and documents. ⁴

Section 11507.6 does not, in terms, provide for interrogatories. It provides for written requests. Shively, Everett and section 11507.6, because of 'modern concepts of administrative adjudication' (Shively, p. 479, 55 Cal.Rptr. 217, 427 P.2d 65), provide for the discovery of certain information. We see no reason why respondent should be denied that information because he asked for it in interrogatories rather than in requests.

This brings us...