Burdens and Standards on Administrative Writs

Li. v. Superior Court, No. C092584 (D3 Sept. 30, 2021)

Last year, in Conservatorship of O.B., the California Supreme Court cleared up some confusion regarding the way an underlying burden of proof affects the standard of review on appeal. Essentially, the court held that the standard of review bakes in the burden. So, for instance, when the substantial evidence standard applies, it will take more or better evidence to affirm a finding for a fact subject to a clear and convincing burden than it would for a fact that can be found by a preponderance.

This case applies that logic to administrative mandamus proceedings under Code of Civil Procedure § 1094.5. Administrative mandamus is a procedure that’s used to appeal the quasi-judicial decisions of administrative agencies to the superior court. In any administrative proceeding where the claimant is entitled to a hearing, the appeal is taken by § 1094.5 writ. The standard of review that applies to that appeal depends on the nature of the right affected. If the proceedings substantially affect a fundamental vested right, the record is reviewed de novo, and the statute directs the court to find an abuse of discretion if in its independent judgment, the agency’s findings are not supported by the weight of the evidence. If no fundamental right is involved, the superior court performs more of a traditional appellate role and reviews the findings for substantial evidence. 

The question, then, how the O.B. rule affects a superior court when the underlying burden in the administrative case is higher than a preponderance. The logic of O.B. pretty clearly applies to non-fundamental review that applies a substantial evidence standard. But for independent review, some older cases read the phrase “by the weight of the evidence” in § 1094.5(c) to require a preponderance burden even if the agency needed to make findings by clear and convincing. Particularly when combined with O.B., however, that leads to the odd result that the superior court winds up applying a more deferential standard of review in the independent review than it does on review for substantial evidence. That doesn’t make a lot of sense.

So the Court of Appeal here revisits those old cases. It does not find that they were implicitly overruled by O.B.—a probate appeal that had nothing to do with administrative mandamus. But regardless, the Court finds that the old cases mistakenly equated “weight of the evidence” with a preponderance and relied upon somewhat shaky somewhat out of context authority in doing so. In particular, there was a lot of conceptual conflation between burdens of proof and standards of review. With that underbrush cleared, there is no logical obstacle to applying an O.B.-style burden incorporation into the independent review standard.

Ironically, none of that affects the outcome of this case—the Medical Board of California’s revocation of petitioner’s physician’s license where the burden is clear and convincing and review is independent. The court finds that the petitioner failed to show that application of the correct standard would have altered the result in the superior court.

Writ denied.