Writs and Appeals
If you receive an adverse decision, we are experienced in appealing decisions in administrative cases to the Superior Court in a process called a Petition for Writ of Administrative Mandamus or Petition for Writ of Mandate. Our firm also appeals judgments from California Superior Courts to the Court of Appeal and California Supreme Court.
Superior Court Writ Petitions
After an adverse decision, a licensee may have as few as 30 days to appeal that decision to the Superior Court. These court cases should only be handled by skilled, experienced license law counsel, to maximize the chances of reversing a loss in the administrative courts. Choosing the court to bring the writ petition in is a critical tactical decision. In California, three courts, Sacramento County Superior Court, Los Angeles County Superior Court and Alameda County Superior Court, have dedicated courtrooms for writs, and a fourth, San Francisco Superior Court, has law and motion courtrooms that hear writs. In all other counties, typically, writs are assigned to random civil courtrooms. Filing a petition for writ of administrative mandamus in a courtroom with a judge experienced with such matters increases the likelihood of a thoughtful, well-reasoned and correct decision on the issues.
A petition for writ of administrative mandamus (or writ of mandate) typically has to be filed within 30 days of the effective date of the disciplinary decision. This deadline can be extended by requesting the administrative record within 10 days of the effective date of the decision, however, the better practice is to follow the shortest deadline to insure the case is not thrown out for being filed too late. We have in the past filed petitions for writ of administrative mandamus in as little as a few days lead time from the deadline, thanks to our efficiency in preparing these documents, however, it is best to retain counsel as quickly as possible.
Ex Parte Application to Stay the Adverse Decision
For some licensees, we take emergency action to persuade the Superior Court judge to stay, or stop, the agency's adverse order disciplining the license from taking effect. Our experience with stays is key, as a stay can be difficult to obtain, because the judge must be persuaded on somewhat scant evidence and a brief review of legal arguments that the licensee is likely to win the entire case. Also, there should be little or no concern of possible harm to the public. In cases where an agency altered the proposed decision of the administrative law judge in reaching a final decision, however, the licensee need only show a lack of danger of public harm. It is sometimes also possible to negotiate a stay with the attorney for the agency.
The Key to Winning Writ Petitions
A petitioner (the licensee) must show that the licensing agency abused its discretion. If the dispute is not over whether the licensee should have been disciplined, but rather the degree of discipline, the licensee must show a manifest, or obvious, abuse of discretion, in the setting of the penalty. The Superior Court judge will review the hearing transcripts, all the evidence, and legal arguments from both sides, to determine if the agency abused its discretion requiring that the Superior Court remedy the situation by setting aside the agency order.
Strong legal arguments include violations of due process, depriving a licensee of a fair hearing; legal errors relating to the statutes or regulations used as the basis for discipline; and factual mistakes that color the outcome of the case. In the case of filing a petition for writ of mandate, a hearing might not have even been held, such as in the case of a summary or default order. Cases can be won if a licensee's rights were not fully respected at hearing, or if the agency attorney has improperly influenced the decision-making process to the disadvantage of the licensee.
Supercedeas and Appeals to the Court of Appeal
If a licensee is unsuccessful in Superior Court, or if there are defects in the judgment, that decision can be further appealed to the Court of Appeal and on to the California Supreme Court for court review and possible reversal. A further stay of the adverse administrative decision can be sought in the Court of Appeal by filing an emergency motion called a Petition for Writ of Supercedeas. Appeals to the Court of Appeal employ similar standards to the Petition for Writ of Administrative Mandamus, but the emphasis is on mistakes of law. The Court of Appeal can even consider arguments, including factual and constitutional arguments, to make new law in favor of the appellant.
The essential ingredient for winning a writ of administrative mandamus or an appeal is hiring an attorney who has handled hundreds of administrative cases, regularly files appeals, and can spot mistakes and issues to argue for a successful outcome. Some issues are very subtle or difficult to detect. If you or someone you know is considering appealing an adverse license decision, they should contact our firm for an appointment without delay.