Skip to main content


Reset A A Font size: Print

District Court of Appeal, First District, Division 1, California.


No. 13432.

Decided: October 28, 1947

Booth B. Goodman, of San Francisco, for appellant. Fred N. Howser, Atty. Gen., and J. Albert Hutchinson, Deputy Atty. Gen., for respondents.

The court sustained without leave to amend a demurrer to, and denied, appellant's amended petition for writ of mandate. The grounds of the demurrer were, that the petition does not state a cause of action; that the alleged cause of action is barred by section 11523 of the Government Code; that it is barred by laches, and that there is a misjoinder of parties.

The main question is whether the amended petition (hereinafter for brevity called the petition) states a cause of action. This question depends principally on whether in passing on the demurrer the court had the right to take judicial notice of the proceedings of the respondent board, including the testimony there taken.

The petition contains two causes of action. The first alleges that on October 18, 1943, the respondent Board of Medical Examiners denied arbitrarily, in abuse of their discretion and without any evidence contrary to that produced by appellant as to his good moral character and his ability in medicine and surgery, except some newspaper reports allegedly considered by the board after submission, an application theretofore made by appellant for the restoration of his license. The second cause of action alleges his medical education, admission to the practice of medicine and surgery in California in 1920, his practice thereof until 1941, the revocation in that year of his license because of his conviction of ‘a felony, to wit: perjury; preparing false evidence; and presenting false evidence,’ and the circumstances that during incarceration at San Quentin he was assigned to hospital work, and that since his release in December, 1942, he has continuously studied medicine and surgery and is fully qualified to practice those subjects in California in accordance with the highest standards of the profession; and the filing of a second petition before the board for restoration of his license. It then alleges that the board capriciously and arbitrarily and to cause him loss of time and expense continued the hearing from time to time and to Sacramento, San Francisco and Los Angeles; that at the hearings he presented ample evidence of his good moral character and professional skill; that the board admitted against him evidence which was incompetent, irrelevant and immaterial, and designed to prejudice the board members against him. The petition then lists six instances in which evidence of bad reputation of other persons were given without any foundation as to their connection with appellant. It alleges that the board received the testimony against appellant of a man whom the board knew was insane at the time concerning which he testified, and that the board refused to permit appellant to prove the insanity of that witness. It alleges that appellant had received a certificate of rehabilitation under section 4852.13 of the Penal Code; and that the denial of the restoration of his license was arbitrary, capricious and unwarranted, and a clear abuse of discretion.

On the hearing of the demurrer the respondent contended the petition was defective for the following reasons: first, because the record of the proceedings before the board, including the testimony there taken, shows that the allegations of the petition are not true, and that the court had a right to consider such record in passing on the demurre, for they contend that in considering a petition to review the action of an administrative board, there is an exception to the general rule as to demurrers in this, that the record of the proceedings of that board are matters of judicial knowledge and therefore, facts alleged by operation of law in every pleading; and secondly, that even without the board's record, the petition does not state sufficient facts because its assertion are not statements of ultimate fact but conclusions of law.

We will consider the second point first. We agree with respondent that the court was right in sustaining the demurrer to the first cause of action, which dealt with a prior application for and denial of restoration of license, as the issues therein involved are moot and waived by appellant's failure to litigate them before, and by, making a second application. While perhaps the petition is not a model of pleading, it did set forth in the second cause of action a number of facts upon which are based the contention that the board acted arbitrarily. For example, it alleged that the board admitted evidence that a certain woman was a drug addict and had a police record, in spite of the fact that the record showed without dispute that appellant had never known or seen her; that the board refused to permit testimony or records to show that the witness who claimed to have seen appellant give hypodermic injections to two certain people was insane at the time of the alleged occurrences.

On the question of charging arbitrary and capricious action of a board it is difficult to undersand how a petitioner can charge it without using the words ‘arbitrary and capricious,’ which respondent contends are conclusions rather than ultimate facts. Taking the petition as a whole, there are sufficient facts alleged, if true, to show an arbitrary action of the board. Pavilion Ice Rink v. Bryant, 58 Cal.App. 584, 209 P. 76.

While the petition is probably subject to special demurrer, that fact does not justify the sustaining of the demurrer without leave to amend. It has consistently been held that where a complaint is not subject to general demurrer, it is an abuse of discretion to sustain a demurrer without leave to amend, even though the complaint may be subject to special demurrer. Wennerholm v. Stanfored Univ. School of Medicine, 20 Cal.2d 713, 128 P.2d 522, 141 A.L.R. 1358.

This brings us to the first and principal point in the case. Respondent concedes that the general rule is that a demurrer admits the truth of the allegations of the pleading. Kingsbury v. Nye, 9 Cal.App. 574, 99 P. 985; Los Angeles City School District v. Odell, 200 Cal. 637, 254 P. 570. But, they contend, there is an exception to such rule, namely, that facts judicially noticed must be considered as included in the pleading. They are correct so far. 21 Cal.Jur. 96; 49 Corpus Juris, 440; Arnold v. Universal Oil Land Co., 45 Cal.App.2d 522, 114 P.2d 408. They then contend, the record of the proceedings before an administrative board, including the testimony there taken, is a matter of judicial knowledge on review of the acts of that board. The case principally relied upon by respondent is the case of French v. Senate, 146 Cal. 604, 80 P. 1031, 1032, 69 L.R.A. 556, 2 Ann.Cas. 756. That was an original proceeding in mandamus to compel the state senate to admit the petitioners as members. They were duly elected senators from their respective districts, but had been expelled from the senate for misfeasance in office. In their petition they charged that the senate did not give them a hearing, afford them a trial, or permit them to make a defense. The real ground upon which the court denied the writ was: ‘Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the constitution. * * * An attempt by this court to direct or control the Legislature, or either house thereof, in the exercise of the power, would be an attempt to exercise legislative functions, which it is expressly forbidden to do.’ Having fully decided the case, the court then said: ‘We think it is proper to say further, out of respect to a co-ordinate department of the government, that, notwithstanding the arbitrary action apparently charged against the Senate by the language of the petition, we cannot give the statements therein contained their full force.’ It referred to the exception to the demurrer rule which we have mentioned above, and stated that the courts take judicial notice of the public and private official acts of the legislative department of the state. ‘Among these official acts are included the proceedings by which the petitioners were expelled and which are entered upon the journal of the Senate. We are therefore bound to take notice that charges were preferred against the petitioners in the Senate and were referred by it to a committee for investigation; that the committee reported that it had made the investigation and that the charges were true, and recommended that the petitioners be expelled; that this report was taken up and considered by the Senate; that the petitioners, being then members, had upon such consideration an opportunity to present, or have presented, arguments in their behalf; and that the resolution expelling them was regularly offered and adopted by the Senate.’ While the dictum in this case went a long way, it is to be noted that it does not state that the testimony considered by the senate committee can be taken judicial notice of by the court on demurrer. The fact that charges were preferred, that they were referred to a committee, which reported the result of their investigation, finding and recommendation; that the report was taken up and considered by the senate and that the resolution expelling them was regularly offered and adopted, are all the matters noticed by the court. There is a vast difference between taking judicial notice of these matters and of the testimony adduced. Even applying the dictum in the French case, the most that could be said is that the court will take judicial knowledge of the fact that the appellant filed with the board a petition for restoration of his license, that hearings were had and that the board acted, but not that the court will take knowledge of the testimony admitted or refused. The cases cited by respondent hold the following as matters of judicial knowledge: official acts of departments of the state and nation, Land Office records, regulations of the Department of Interior (certain data in the Land Office, such as assignments of oil royalties, the time drilling started or was abandoned on permit properties, dates of leases, etc.) (Arnold v. Universal Oil Land Co., supra, 45 Cal.App.2d 522, 114 P.2d 408); public and private official acts of the legal, executive and judicial departments of this state and of the United States (Sec. 1875, Code Civ.Proc.); reports, records and proceedings of the debris commission and of the state engineer (Gray v. Reclamation District No. 1500, 174 Cal. 622, 163 P. 1024); letter of instructions of the land office to the surveyor-general (Southern Pacific Land Co. v. Meserve, 186 Cal. 157, 198 P. 1055); letters of the general land office (Southern Pac. R. Co. v. Wood, 124 Cal. 475, 57 P. 388; Livermore v. Beal, 18 Cal.App.2d 535, 64 P.2d 987); the consent form used by the State Department of Social Welfare (Adoption of McDonnell, 77 Cal.App.2d 805, 176 P.2d 778); their own record pending in the same court, Brock v. Fouchy, 76 Cal.App.2d 363, 172 P.2d 945. In McPheeters v. Board of Medical Examiners, 74 Cal.App.2d 46, 47, 168 P.2d 65, 66, appears this language: ‘The record before us consists of a clerk's transcript on appeal. Both counsel have gone outside the record in their briefs and arguments. While it is true that we may take judicial notice of the records of a public agency, as suggested by counsel, they should realize that we should be furnished with some official information of what those records contain as we should not be called upon to take judicial notice of facts of which we are in actual ignorance.’ It will be noted that the court is not considering the testimony before the board, it is the ‘record’ necessary to enable the court to determine the question before it, namely, the venue of the proceeding.

In the cases cited by appellant as upholding a similar ruling to the one here, it is significant that it was not a case of the court taking judicial notice, but the testimony before the board was expressly made a part of the petition, as in Tobinski v. Board of Medical Examiners, 49 Cal.App.2d 591, 121 P.2d 861, and Hansen v. Board of Equalization, 43 Cal.App.2d 176, 110 P.2d 453, or as in Rinker v. State Board of Medical Examiners, 59 Cal.App.2d 222, 138 P.2d 403, where the parties submitted the testimony before the board to the court by stipulation. Even in the case where the record including the testimony is a part of the petition, or is before the court by stipulation, the petitioner must be given a full and fair hearing on that record. This subject is discussed hereinafter under the heading ‘Proceedings on Order to Show Cause.’

Cause of Action Not Barred by Section 11523, Government Code.

This section provides for judicial review by a writ of mandate within thirty days after the last day on which reconsideration can be ordered. Section 11521 provides that the agency itself may order reconsideration within thirty days of the delivery or mailing of a decision ‘or on the date set by the agency itself as the effective date of the decision if such date occurs prior to the expiration of the thirty-day period.’ The petition was filed after thirty days but before sixty days from the date of the decision. Reading these two sections together it appears that after mailing or delivery of decision sixty days is given in which to start mandamus proceedings, unless the agency itself, here, the board, expressly sets an affective date of the decision within the first thirty day period. Respondent takes the position that as the board denied the application to restore the license, the decision became effective immediately, and thereby the board set the effective date as within the thirty day period. There are two answers to that contention: first, it nowhere appears that the decision ever was mailed or delivered to appellant and hence the thirty days would not start to run; and secondly, it is obvious from a reading of section 11521 that a mere denial of a petition is not a setting of the effective date of the decision within the meaning of that section. There must be some affirmative declaration by the board in order to cut short a petitioner's time to appeal.

Respondent contends that the provisions in the Administrative Procedure Act of which the above sections are a part, apply only to proceedings to revoke or suspend professional licenses and not to proceedings to restore them. However, the act expressly includes the board of medical examiners as one of the agencies covered and expressly provides the proceedings to be had for the issuance or renewal of licenses. It is apparent from an examination of the act that the Legislature was providing a method of procedure for all matters of licensing coming before the agencies, including the restoration of licenses.

No Laches.

It is not contended that the court considered or acted upon this contention. The court's action admittedly was based upon its examination of the testimony and proceedings before the board. The laches contended for here does not appear on the face of the petition. The original petition was filed within sixty days of the decision. The delay complained of is in bringing the matter on to be heard. That is a matter of defense to be raised by answer and to be determined by the court after hearing the reason for the delay, and upon a showing that the other party has been prejudiced by such delay. Goodfellow v. Barritt, 130 Cal.App. 548, 20 P.2d 740. Maguire v. Hibernia Savings & Loan Soc., 23 Cal.2d 719, 146 P.2d 673, 151 A.L.R. 1062, and Orwitz v. Board of Bental Examiners, 55 Cal.App.2d 888, 132 P.2d 272, relate to delays in filing the suit. Farnsworth & Ruggles v. California etc. Comm., 79 Cal.App.2d 602, 180 P.2d 363, relates to delay in applying to the commission for certain statements.

Failure to Proceed Diligently.

Respondent contends that the appellant should be denied relief (whether here or below is not clear), because the proceedings were not carried on diligently. The record fails to disclose that this point was presented to the court below. The action was originally filed on December 1, 1945, in Amador County. It is contended that the judge there being sick was the cause of the delay. After his death and because of the decision in McPheeters v. Board of Medical Examiners, supra, 74 Cal.App.2d 46, 168 P.2d 65 (decided after the petition had been filed about five months), appellant on October 18, 1946, applied for a change of venue to San Francisco which was granted on October 21; the amended petition was filed December 4, after a demurrer to the original petition had been sustained on November 27. The consideration of this delay and the reasons therefor must first be determined by the trial court after issue framed by an answer.

Failure to Exhaust Administrative Remedy.

The position of the respondent is that as approximately a year expired between the denial of his reinstatement and the return of the order to show cause, it was the duty of appellant to start all over again by the filing of a new petition. Supporting this contention respondent cites Abelleira v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715, where the court held that until the appeals provided by the administrative procedure set forth in the Unemployment Insurance Act had been taken the court could not review the procedure. The other case cited is Alexander v. State Personnel Board, 22 Cal.2d 198, 137 P.2d 433, which held that the court would not review the proceedings of the State Personnel Board because the petitioners had failed to apply to the board for the statutory rehearing. These cases do not support respondent's contention. Under respondent's theory it would be impossible for a person to ever get a court hearing reviewing the action of an administrative board. By the time the matter could be heard by the courts, it would be necessary for petitioner to start all over again which the board. Such a result would be abseurd. The same is true of the contention that the court, if the record before the board justified it, could not grant petitioner relief, simply because of lapse of time.


Respondent contends that the board is the only proper party respondent, because it is the only agency which may afford any relief or take any action in the matter, and hence the joining of the members of the board with it constituted a misjoinder of parties. Boland v. Cecil, 65 Cal.App.2d Supp. 832, at page 840, 150 P.2d 819, 824, cited on this point, merely holds “Where it is doubtful in what capacity a party sues or is sued, reference may be had to the entire complaint”; that while the title to the complaint named the official title of only one defendant, ‘the language of such pleading itself leaves no doubt that the defendants [officials of the Department of Agriculture] are each charged in his official capacity only * * *.’ 65 Cal.App.2d Supp. at page 840, 150 P.2d at page 824. Reed v. Molony, 38 Cal.App.2d 405, 101 P.2d 175, followed the principle of the Boland case but held that the defendants were being sued in their official capacity when under the facts of that case they could be liable only, if at all, as individuals. These cases are not in point. Mandamus is ‘in substance, a personal action against the respondent and not one in rem against the office.’ 34 Am.Jur. 813. This fact is not changed by section 411, Code of Civil Procedure, which provides, in effect, that in proceedings against a state board or commission only the president or certain other officers need be served with summons.

Proceedings on Order to Show Cause.

Respondent contends that aside from the propriety of considering the board's record in ruling upon the demurrer, the trial court properly considered said record on the hearing of the order to show cause. It is difficult to determine from the record just what did happen at the hearing. On October 30, 1946, based on the original petition filed the preceding November, an order to show cause was issued, commanding respondents immediately after its receipt to restore the right of appellant to practice medicine and surgery, or to show cause before the court on November 14 why they had not done so, and that they ‘certify at said time and place, petitioner's application, written communications, minutes of the Board, the record, motions, votings and proceedings of said case, and that the same will be inquired into by this Court.’ Respondent filed a pleading called ‘Return to Petition for Writ of Mandate, by Way of Demurrer.’ There is no record of any action of the court on November 14th. On November 27, this demurrer was sustained. The minute order sets forth that the demurrer was ‘heretofore submitted’ and the grounds upon which the demurrer was sustained, but makes no reference to any hearing on the order to show cause other than the hearing of the demurrer. The amended petition was filed in December. Respondent filed a return to this petition and demurred only. On December 18 appears this minute order: ‘This case coming on regularly this day for hearing. Thereupon counsel for petitioner filed an affidavit. Thereupon the Attorney General objected to the affidavit. Thereupon the Court overruled the objection. Whereupon the Court ordered the case submitted upon filing of briefs 10 & 10. Court changes order to cause submitted for decision, 10 days to file points and authorities, affidavits and offer of proof.’ What had happened to the order to show cause in the meantime does not appear. The affidavit referred to in the minute order as having been filed does not appear in the record. The court did consider the record of the proceedings before the board. (The word ‘record’ as used by us concerning the proceedings on the order to show cause includes the testimony of all proceedings before the board.) In its memorandum opinion in the clerk's transcript the court said: ‘This court has extended its inquiry as to whether or not the Board acted within its jurisdiction’ etc. (Emphasis added.) Whether this was in connection with the consideration of the demurrer or was by reason of the order to show cause is not indicated by the record. It would appear that the order to show cause became functus officio on November 14. However, we will assume that the order to show cause was properly continued until December 18.

The following cases (McDondugh v. Goodcell, 13 Cal.2d 741, 91 P.2d 1035, 123 A.L.R. 1205; McDonough v. Garrison, 68 Cal.App.2d 318, 156 P.2d 983; Hansen v. State Board of Equalization, supra, 43 Cal.App.2d 176, 110 P.2d 453; San Diego Cotton Club v. State Board of Equalization, 139 Cal.App. 655, 34 P.2d 749; Glick v. Scudder, 69 Cal.App.2d 717, 160 P.2d 90), have established the rule that the court in reviewing the action of a statewide administrative board under an application for issuance of a license is not entitled to grant a trial de novo, as is the rule in cases of revocation of license. It is elementary that a person seeking restoration of a revoked license has no greater rights than a person seeking an original license. In re Mash, 39 Cal.App. 548, 179 P. 897. The rule of Laisne v. California State Board of Optometry, 19 Cal.2d 831, 123 P.2d 457; Dare v. Board of Medical Examiners, 21 Cal. 2d 790, 136 P.2d 304; Wyatt v. Cerf, 64 Cal.App.2d 732, 149 P.2d 309, concerning revocation of licenses, does not apply. But while denying the right of trial de novo, these cases do not hold that the applicant is to be denied the right to a formal hearing on the record of the administrative board, and instead is to receive only an informal examination of such record by the judge in chambers. The record was in court, brought there pursuant to the demand in the order to show cause as authorized by section 1094.5 of the Code of Civil Procedure. As held in McDonough v. Goodcell and the other cases hereinbefore cited, the petitioner was not entitled to a trial de novo. Hence, under subdivision (c) of section 1094.5, the court is limited to a determination of whether the board's findings are ‘supported by substantial evidence in the light of the whole record.’ The court must then, if the record is present, on the hearing of the order to show cause and for the purpose of determining whether to issue an alternative writ of mandate, (a matter in the discretion of the court) examine the record. But that examination must be in open court with a fair and full opportunity given petitioner to point out in the record the matters that he claims show the arbitrary action of the board. The petitioners, however, is not entitled to offer evidence, nor submit to the court anything which was not before the board. If the board improperly excluded evidence, and the court, having in mind that the petitioner must affirmatively prove rehabilitation, determines that such evidence was necessary to a complete determination by the board of the application, then the case would have to be returned to the board to consider that evidence. It could not be received by the court. In Patterson v. Board of Supervisors, 79 Cal.App.2d 670, at page 675, 180 P.2d 945, 948, the court said: ‘There is nothing to indicate that a fair and proper hearing was not accorded the appellant.’ Rule 52, Rules on Appeal, provides: ‘If a record on appeal does not contain all of the papers, records and oral proceedings, but is certified by the judge or the clerk, or stipulated to by the parties, in accordance with these rules, it shall be presumed in the absence of proceedings or augmentation that it includes all matters material to a determination of the points on appeal.’ In view of the record before us, the fact that the proceedings on the order to show cause do not appear to have been reported, indicating that the emphasis was on the claim that the board record should be considered on the hearing of the demurrer rather than as a part of the application for an alternative writ, and the statement by the judge in his memorandum opinion that he had read, considered and studied the record several times, indicates, as petitioner claims, that the court considered the record in his chambers, and that the petitioner was denied the type of hearing to which he was entitled. The right to a review of the proceedings by which he was denied restoration of his license is a substantial right which a citizen has, and is not met by a hearing or trial at which the record of the proceedings is handed to the judge to consider at his leisure, and in the absence of the party most interested. Whether it be on the hearing of an order to show cause for an alternative writ or at a trial on issue joined, an opportunity must be given the petitioner to point out and argue in open court the matters in the record which he claims show that he was denied a fair hearing, even though he is not entitled, under the decisions, to a trial de novo, or to introduce into evidence the matters which he claims the board improperly decided.

Petitioner claims that he did not receive such a hearing. The record fails to disclose that he did, and it is partically conceded that the examination made by the judge was in the privacy of his chambers. Such is not the hearing contemplated by the law, even though (and this we cannot determine from the record) the points and authorities he was allowed to file after submission may have included his points concerning the alleged abuse of discretion of the board.

Section 1094.5 of the Code of Civil Procedure provides that in mandate proceedings of this character ‘All or part of the record of the proceedings before the inferior tribunal, corporation, board or officer may be filed with the petition, may be filed with the respondent's points and authorities or may be ordered to be filed by the court. * * * (b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence; and in all other cases abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.’ However, this section in providing that the record may be filed with the petition, or respodent's points and authorities, or may be ordered to be filed by the court, does not mean that such record may be considered by the court without a full and complete hearing of petitioner's objections to and claims concerning all portions of that record. Here the order to show cause ordered the record to be produced, and had there been a full and fair hearing of that record, petitioner could not complain of the failure of the court to grant a peremptory writ. The record fails to show that such hearing was had.

Inasmuch as the case must be returned to the trial court for further consideration, it is proper to call attention to the fact that it was not necessary for the board to prove that petitioner was not rehabilitated. The burden at all times rests on petitioner to prove that he had rehabilitated himself.

We are expressly not passing on, nor have we considered, the record in the respondent board, nor the claim of arbitrary action by that board. Nor have we considered the question as to whether hereafter, if the trial court should find in favor of appellant, that court should order the board to grant another hearing or should order his reinstatement. These matters are primarily for the trial court to determine.

The court properly sustained the demurrer without leave to amend the first cause of action, but improperly as to the second cause of action, and failed to grant appellant the hearing contemplated by law. The judgment is reversed and the matter is remanded to the trial court with instructions to overrule the drmurrer to the second cause of action in the amended petition, giving respondent the right to plead, and to hold a hearing, either on the order to show cause or after issue joined, such hearing to be along the lines herein expressed.

BRAY, Justice.

PETERS, P. J., and FINLEY, J., pro tem., concur.

Copied to clipboard