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.

Tax Return Privilege Overriden to Prevent Fraud

Li. v. Yan, No. A144994 (D1d2 May 2, 2016)

This is a collections case. Like most collections cases that progress to an appeal, the facts are convoluted and difficult to follow. But the court’s rulings aren’t. First, when the debtor is subject to a judgment debtor exam, the creditor doesn’t need to personally serve a subpoena demanding that he bring docs to the exam. Service in the same manner as applies to pre-judgment party discovery (e.g., mail service to counsel) will suffice.

Second, although California recognizes a privilege against the discovery of tax returns, it can be overridden in difficult collection cases by a “public policy greater than that of the confidentiality of tax returns.” To wit, the “policy is to prevent fraud against creditors. And against lenders. And perhaps against the court.” The record here showed that debtor had engaged in a bunch of pretty egregious conduct designed to frustrate the collections process. Under the circumstances, the court finds the privilege overridden.

RFA Denials Are Not Fair Game for Cross-Exam

Gonsalves v. Li, No. A140284 (D1d5 Jan. 13, 2015).

Defendant in this case crashed a BMW M3 during a test drive, injuring the car salesman who was riding along. Most of the opinion—which addresses various evidentiary, jury misconduct, and attorney misconduct issues—is unpublished. But the court does publish on two related issues: Are denials of requests for admission admissible evidence at trial and it is permissible to question a party about these denials during examination? The court says no to both.

During trial, plaintiff called defendant as an adverse witness under Evidence Code § 776. Plaintiff’s lawyer aggressively questioned defendant about various lawyerly non-admissions contained in his RFA responses. And then plaintiff stridently argued at closing that the mealy denials called defendant's credibility into question, suggesting that the jury needed to make defendant take responsibility. The judge let the denials come into evidence, over objections, permitted the examination, and denied a new trial motion arguing improper argument.

Under the Discovery Act, any part of a deposition or interrogatory response is generally admissible as trial evidence. Cal. Code Civ. Proc. §§ 2025.620, 2030.410. But that’s not true when it comes to RFAs, for which only admissions are admissible. § 2033.410.

And as to questioning witnesses about denials, the court agrees that the situation is generally analogous to Rifkind v. Superior Court, 22 Cal. App. 4th 1255 (1994)—a key case that every California lawyer defending a depo should know. Rifkind says that you can’t ask a party-deponent (even the person most qualified testifying for an organization) questions about the nature of and evidence in support of that party’s legal contentions. Such questioning is unfair in that it addresses application of law to fact issues generally in the sole purview of counsel. That information is thus properly obtained through interrogatory, where counsel have the ability to participate and the time to contemplate to avoid a “gotcha” response to a complicated question with legal implications. 

RFA responses are similar. An RFA denial is not a statement of fact. It is merely a failure to admit, which potentially has consequences independent of discovery. See § 2033.420(a) (permitting fee awards as sanction for unreasonable denial of RFA). To permit cross-examination of a party witness about the basis for a denial entails questioning about the application of law to fact that, much like contention questioning, is similarly unfair to a lay witness.


Reversed and remanded.