When a licensing board, a state or local agency, or a hospital governing body makes a final decision after a hearing, the usual way to challenge it in court is a petition for a writ of mandate in the Superior Court. The Law Offices of Nathan Mubasher represents individuals and licensed professionals in these proceedings, including physicians and other licensees seeking review of board discipline or peer review decisions. This page outlines how writ review works in California.
Two kinds of writ
- Administrative mandamus (Code of Civil Procedure section 1094.5) reviews a final administrative decision made after a proceeding in which the law requires a hearing, requires evidence to be taken, and gives the agency discretion to decide the facts. License discipline after an administrative hearing is a common example.
- Traditional mandamus (Code of Civil Procedure section 1085) asks the court to compel an agency or official to perform an act the law specifically requires, or to restore a right or office from which the petitioner is unlawfully excluded.
A writ of mandate is available where there is no plain, speedy, and adequate remedy in the ordinary course of law, and it is issued on the verified petition of a party beneficially interested (Code of Civil Procedure section 1086). The case is heard by a judge, without a jury (Code of Civil Procedure section 1094.5(a)).
What the court decides
Under Code of Civil Procedure section 1094.5(b), the court considers whether the agency acted without or in excess of its jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency did not proceed in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence.
Standard of review
How closely the court looks at the evidence depends on what is at stake:
- Independent judgment. Where a decision substantially affects a fundamental vested right, such as an existing professional license, the court generally exercises its independent judgment and asks whether the findings are supported by the weight of the evidence (Code of Civil Procedure section 1094.5(c); Bixby v. Pierno (1971) 4 Cal.3d 130). The same approach applies to decisions of local agencies (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28).
- A presumption the agency was right. Even under independent judgment, the court begins with a strong presumption that the agency’s findings are correct, and the petitioner bears the burden of showing they are contrary to the weight of the evidence (Fukuda v. City of Angels (1999) 20 Cal.4th 805).
- Substantial evidence. In other cases, the court asks only whether the findings are supported by substantial evidence in light of the whole record (Code of Civil Procedure section 1094.5(c)).
- Hospital decisions. For decisions of private hospital boards and of health care district and municipal hospital boards, the statute applies the substantial evidence standard. The exception is a petition alleging discrimination prohibited by Health and Safety Code section 1316, such as discrimination based on whether a practitioner holds an M.D., D.O., or D.P.M. degree; if a preliminary showing of substantial evidence supports that allegation, the court exercises its independent judgment (Code of Civil Procedure section 1094.5(d)).
Deadlines
Writ deadlines are short and depend on who made the decision:
- State licensing boards and other agencies under the Administrative Procedure Act. The petition generally must be filed within 30 days after the last day on which the agency can order reconsideration. If the petitioner requests the record within 10 days after that day, the deadline is extended to 30 days after the record is delivered. Asking the agency for reconsideration is not required before filing (Government Code section 11523).
- Local agencies, such as cities and counties (other than school districts). For decisions such as a license or permit revocation or denial, employee discipline, or a penalty, the petition generally must be filed within 90 days after the decision becomes final, with an extension if the record is requested within 10 days (Code of Civil Procedure section 1094.6).
- Other statutes. Section 11523 applies subject to the statutes governing the particular agency, so the deadline should be confirmed for each case as early as possible.
The administrative record
Review under section 1094.5 is based mainly on the record of the hearing below: the pleadings, notices and orders, the proposed and final decisions, the transcript, and the exhibits. The petitioner generally pays to prepare the record unless a statute provides otherwise (Code of Civil Procedure section 1094.5(a)). In Administrative Procedure Act cases, the Office of Administrative Hearings or the agency prepares the record on request and payment, and if the petitioner overturns the decision, the agency must reimburse those costs (Government Code section 11523). The court may consider evidence that could not have been produced with reasonable diligence or was improperly excluded at the hearing, either by sending the case back or, in independent judgment cases, by admitting it (Code of Civil Procedure section 1094.5(e)).
Stays while the case is pending
Filing a petition does not by itself stop a decision from taking effect. The court may stay the decision while the case is pending. For decisions of licensed hospitals, and of the state boards that license health professionals after a hearing under the Administrative Procedure Act, a stay may be granted only if the court is satisfied that the public interest will not suffer and that the hospital or agency is unlikely to prevail ultimately on the merits (Code of Civil Procedure section 1094.5(g), (h)).
What the court can order
The court either orders the agency to set aside its decision or denies the writ. When it sets a decision aside, it may send the case back for reconsideration, but it cannot control the discretion the law gives the agency (Code of Civil Procedure section 1094.5(f)). A successful writ therefore often leads to a new decision by the agency rather than a final result in court. Every case depends on its record and facts, and no particular result can be guaranteed.
Hospital privileges and peer review decisions
A physician challenging a hospital’s decision on medical staff privileges generally must first use the hospital’s internal hearing and appeal procedures and then have the decision set aside through a writ of mandate before seeking damages (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465). For the hearing stage, see peer review and credentialing. For board discipline, see professional license defense and Medical Board investigations.
Frequently asked questions
Can I file a writ while a board investigation is still open?
Usually not. Administrative mandamus reviews a final administrative decision (Code of Civil Procedure section 1094.5(a)), and California courts generally require available administrative remedies to be exhausted first (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280).
Do I have to ask the board for reconsideration before going to court?
For decisions under the Administrative Procedure Act, no. Government Code section 11523 provides that the right to petition is not affected by a failure to seek reconsideration.
Will the judge hear new witnesses?
Usually not. The court reviews the administrative record. It may consider evidence that could not have been produced with reasonable diligence or was improperly excluded, either by sending the case back or, in independent judgment cases, by admitting it (Code of Civil Procedure section 1094.5(e)).
Does filing a writ petition stop discipline from taking effect?
Not automatically. A stay has to be requested and granted by the court, and for licensed hospitals and the boards that license health professionals the court must find that the public interest will not suffer and that the agency or hospital is unlikely to prevail on the merits (Code of Civil Procedure section 1094.5(h)).
Who decides a writ petition?
A Superior Court judge, without a jury (Code of Civil Procedure section 1094.5(a)).
Talk with Nathan Mubasher
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Attorney Advertising. Law Offices of Nathan Mubasher, 8583 Irvine Center Drive, Suite 35, Irvine, CA 92618. Responsible attorney: Nathan Mubasher. This page provides general information about California law, not legal advice for any specific situation. Reading it or contacting the office does not create an attorney-client relationship. Every matter is different, and no particular result can be guaranteed.