DARLEY v. WARD (1980)

On this appeal by E. Darley, an indigent resident of San Mateo County, from a judgment denying his petition for a writ of mandate and other relief to prevent the San Mateo County Board of Supervisors (Board) from reducing services or closing the Fair Oaks Clinic, the questions are: 1) whether the court abused its discretion in refusing to accept a certified copy of a tape recording of the Board's proceedings, and in denying Darley's motion for a continuance; 2) whether the standard of judicial review of the Board's actions pursuant to Health and Safety Code sections 1442 and 1442.5, is Code of Civil Procedure section 1094.5 or Code of Civil Procedure section 1085. For the reasons set forth below, we conclude that the proper standard of review is Code of Civil Procedure section 1085, and affirm.

The court found the pertinent facts as follows: The Board had been studying the provision of health care services in the county for a number of years. Prior to September 1975, the majority of these services was provided by a centralized system through the facilities at Chope Hospital in San Mateo. In September 1975, the Board authorized creation of Fair Oaks Clinic (Fair Oaks) in Redwood City as a one-year demonstration project to test the feasibility of a decentralized health care system. In September 1976, Fair Oaks was continued in operation pending the possibility of closing Chope Hospital. Thereafter, in March 1977, it was proposed that Chope would remain open, and that Fair Oaks would be closed or services reduced.

At least 60 days prior to the effective date of any reduction of services at Fair Oaks, the Board filed with both the State Department of Health and the local areawide voluntary health planning agency documents which included: (a) a description of the county's existing facilities and services; (b) their proposal for changing these facilities and services; (c) a plan for providing the eliminated services and facilities through alternative means; and (d) a copy of any contracts, agreements or arrangements with any facility or individual to provide services to indigent people.

Prior to any reduction of services, at least 90 days' notice was given of public hearings to be held by the Board. This notice was made in appropriate media and posted at the entrance to all county health care facilities.

On August 23 and 25, 1977, the Board held public hearings on the proposed reduction of services or closing of Fair Oaks. Both oral and documentary evidence was received. A record of the oral proceedings was made by means of tape recordings which were available for transcription to Darley, who failed to provide them after having had opportunity to do so.

About September 20, 1977, the Board, by resolution, formally adopted findings of fact based on the above hearings and included findings that the reduction of services at Fair Oaks and the proposed closing of Fair Oaks after December 31, 1977,^[FN1] would not have a detrimental impact on health care needs of the indigents of the county. These findings were included in the official record of the public hearing.

The court then concluded that: 1) Darley had not met his burden of proof and the burden of producing evidence to show the validity of his assertion that the Board acted improperly, and mandate should issue to correct it; 2) a presumption of law exists that in deciding to close, or reduce services at Fair Oaks, the Board acted properly and regularly in carrying out its official duties; 3) part of Darley's burden of proof and burden of producing evidence was his responsibility to provide the court with an adequate record of the administrative proceedings; as he failed to do so, the presumption of regularity of the Board's action prevails; 4) the Board fully complied with the provisions of Health and Safety Code sections 1442 and 1442.5, and other applicable laws, with respect to their decision to close or reduce services at Fair Oaks.

We turn briefly to Darley's contention that the court abused its discretion by refusing to admit into evidence a certified tape recording of the proceedings before the Board, and by denying his motion for a continuance to have the recording transcribed. Both matters are within the sound discretion of the trial court; in the absence of arbitrary and capricious conduct or a clear abuse of discretion, a reviewing court will not substitute its judgment for that of the trial court (Alford v. Pierno, 27 Cal.App.3d 682, 104 Cal.Rptr. 110).

Generally, sound recordings are “writings” within the broad definition of Evidence Code section 250^[FN2] and, therefore, admissible in mandate and other proceedings (County of Madera v. Holcomb, 259 Cal.App.2d 226, 230-231, 66 Cal.Rptr. 428; People v. Estrada, 93 Cal.App.3d 76, 100, 155 Cal.Rptr. 731).

However, whether or not a particular recording is admissible is within the discretion of the trial court. While there is no requirement that an administrative record be filed in any particular form (Andersen v. Regents of University of California, 22 Cal.App.3d 763, 772, 99 Cal.Rptr. 531), common sense dictates that the particular form be appropriate to enable the court to fulfill its review function. Here, also, a written transcript was required to enable the Board to respond to Darley's arguments. The recording was of two days of hearings before the Board and covered a period of about six hours. The court did not abuse its discretion in ruling that a written transcript was required to enable it to review the lengthy proceedings before the Board.

Next, Darley contends that the court abused its discretion in denying his motion for a continuance to have a transcript prepared. Darley concedes that he had the burden of producing the administrative recording in order to show that the Board's decision was not supported by the evidence (Gong v. City of Fremont, 250 Cal.App.2d 568, 574, 58 Cal.Rptr. 664). The hearings were held on August 23 and 25, 1977, and the fact that they were recorded was known at that time. Darley's petition was filed on September 14, 1977; his order to show cause filed the same day demanded that the Board file a written transcript of the public hearings of August 23 and 25. This portion of the order was stricken by the court. Thus, Darley knew on September 14, 1977, that he had to meet his burden of providing the transcript. Darley set the trial date and made no timely efforts to have a written record of the hearing prepared. Darley made no motion for a continuance until September 30, the date set for the hearing on the merits of his petition.

Here, as in Ward v. County of Riverside, 273 Cal.App.2d 353, 78 Cal.Rptr. 46, the hearings were taped and Darley failed to meet his burden. In Lees v. Bay Area Air etc. Control Dist., 238 Cal.App.2d 850, 48 Cal.Rptr. 298, as in the instant case, the appellant failed to get a transcript of the administrative hearing and presented only a limited record, comprised of the exhibits introduced at the hearing. This court (Division Three) held, at page 855, 48 Cal.Rptr. 298, that since the petition for the writ was before the court on its merits, and the petitioners chose not to be prepared with a transcript, the writ was properly denied. We conclude that the court here did not abuse its discretion by denying Darley's motion for a continuance.

We turn, therefore, to the major question presented by this appeal, the proper standard of review. Darley argues that the Board's actions taken pursuant to Health and Safety Code section 1442 should be reviewed under the traditional mandamus standard of Code of Civil Procedure section 1085, while the Board's actions taken pursuant to Health and Safety Code section 1442.5 should be reviewed under the administrative mandamus standard of Code of Civil Procedure section 1094.5. We do not think this distinction is a logical one and believe the same standard must be applied to the Board's actions under both sections 1442 and 1442.5, which were part of the same legislative enactment (see fn. 5 below).

Code of Civil Procedure section 1085 is the appropriate remedy for review of quasi-legislative or legislative actions (Strumsky v. San Diego County Employees Retirement Assn., 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29), and requires only an examination into whether the action taken was arbitrary, capricious or entirely lacking in evidentiary support, or failed to follow the procedures prescribed by statute. Code of Civil Procedure section 1094.5 applies only to administrative adjudications quasi-judicial in nature, not to municipal legislative actions (Wilson v. Hidden Valley Mun. Water Dist., 256 Cal.App.2d 271, 277-278, 63 Cal.Rptr. 889), and requires the court to determine whether there is substantial evidence in the light of the entire record or to exercise its independent judgment on the evidence where vested rights are involved.

As this court (Division One) noted in Natural Resources Defense Council, Inc. v. California Coastal Zone Com., 57 Cal.App.3d 76, 83, 129 Cal.Rptr. 57, 61, “The distinction between the quasi-legislative and the quasi-judicial is sometimes difficult to determine.” The fundamental question is whether the enabling statute delegated a function which is “essentially legislative” or “essentially judicial.”

The applicable statutes are Health and Safety Code section 1442, set forth, so far as pertinent, below,^[FN3] and section 1442.5 which provides:

“Prior to closing a county facility, eliminating or reducing the level of services provided, or prior to the leasing, selling, or transfer of management, the board shall provide public notice, including notice posted at the entrance to all county health care facilities, of public hearings to be held by the board prior to their decision to proceed. Such notice shall be posted not less than 90 days prior to such public hearings.

The board shall make findings based on these hearings that their proposed action will not have a detrimental impact on the health care needs of the indigents of the county. Such findings shall be included as part of the official public hearing record.

Notwithstanding the board's closing of a county facility, the elimination of or reduction in the level of services provided, or the leasing, selling, or transfer of management of a county facility subsequent to January 1, 1975, the county shall provide for the fulfillment of its duty to provide care to all indigent people, either directly through county facilities or indirectly through alternative means.

(a) Where this duty is fulfilled by a contractual arrangement with a private facility or individual, the facility or individual shall assume the county's full obligation to provide care to those who cannot afford it, and make their services available to Medi-Cal and Medicare recipients.

(b) Where this duty is fulfilled by alternative means, the facility or individual providing services shall be in compliance with Sections 441.18 and 1277.

(c) Whether this duty is fulfilled directly by the county or through alternative means, the availability of services, and the quality of the treatment received by people who cannot afford to pay for their health care shall be the same as that available to nonindigent people receiving health care services in private facilities in that county.

(d) The board shall designate an agency to provide: a 24-hour information service which can give eligible people immediate information as to the available services and access to them and an agency to receive and respond to complaints from people eligible for services under this chapter. The designated agency may be the agency which operates the facility. This subdivision shall apply only in instances in which there is a closing of a county facility, an elimination or reduction in the level of services provided, or the leasing, selling, or transfer of such a county facility.

(e) The board shall arrange for all facilities or individuals contracting to provide services to indigent people to be listed in the local telephone directory under county listings, and shall specify therein that such facilities or individuals fulfill the obligations of county facilities.

The provisions of Section 25371 ([FN4] ) of the Government Code ([FN5] ) do not relieve the county of the obligation to comply with the provisions of this section.“ (Emphasis added.)

Relying on Anton v. San Antonio Community Hosp., 19 Cal.3d 802, 140 Cal.Rptr. 442, 567 P.2d 1162, Darley urges that since Health and Safety Code section 1442.5 provides for a hearing, evidence and findings, the requirements of Code of Civil Procedure section 1094.5, subdivision (a) have been met.

The statutory obligation to hold a hearing, accept evidence and make findings creates requirements characteristic of adjudicatory proceedings, but does not necessarily render the function adjudicative in nature (Rivera v. Division of Industrial Welfare, 265 Cal.App.2d 576, 586-587, 71 Cal.Rptr. 739; Wilson v. Hidden Valley Mun. Water Dist., supra, 256 Cal.App.2d, pp. 278-279, 63 Cal.Rptr. 889).

As this court (Division One) recently observed in City of Santa Cruz v. Local Agency Formation Com., 76 Cal.App.3d 381, at page 388, 142 Cal.Rptr. 873, at page 877:

“ ‘Mere ascertainment of facts as a basis for legislation does not render the process judicial or anything less than quasi legislative.’ (City Council v. Superior Court, 179 Cal.App.2d 389, 393, 3 Cal.Rptr. 796, 799.) ((3)) ‘Where the proceedings are quasi legislative in character, a hearing of a judicial type is not required; a hearing allowed by legislative grace is not circumscribed by the restrictions applicable to judicial or quasi judicial adversary proceedings.’ (Franchise Tax Board v. Superior Court, 36 Cal.2d 538, 549, 225 P.2d 905, 911; Brock v. Superior Court, 109 Cal.App.2d 594, 606, 241 P.2d 283.) ‘To restrict (a quasi-legislative) agency to evidence produced at the time and place specified in the public notice would generate undesirable inflexibility’ (California Optometric Assn. v. Lackner, 60 Cal.App.3d 500, 508, 131 Cal.Rptr. 744, 750). It is commonly accepted practice, not at all incompatible with the concept of a public hearing, for quasi-legislative agencies to receive staff recommendations before the hearing. The complexity of matters before legislative bodies simply does not permit them to act only on input received at the hearing.” (Emphasis added.)

The Legislature apparently recognized the latter, as Health and Safety Code section 1442.5 states that “Such findings shall be included as part of the official public hearing record.”

Adjudicative functions imply an adversary-type action between parties who are entitled to access to evidence and opportunities for cross-examination. Pursuant to Health and Safety Code section 1442.5, the Board's task was to ascertain whether or not the medical care facilities afforded county indigents could adequately and economically be provided “directly through county facilities or indirectly through alternative means.” To make this determination, the Board's function required it to receive and consider economic and social data, as well as opinion and argument from members of the community interested in either maintaining or discontinuing Fair Oaks. The Board was also required to evaluate its experiment with the decentralization at Fair Oaks, and whether some of the services could be provided at Chope Hospital or by private contractors. We conclude, therefore, that the Board's basic function was quasi-legislative rather than quasi-judicial.

Accordingly, the appropriate standard of review is that of traditional mandamus, i. e., whether the Board's action was arbitrary, capricious, entirely lacking evidentiary support (substantial evidence rule), and whether the Board failed to comply with Health and Safety Code section 1442 and to follow the procedures established by Health and Safety Code section 1442.5.

Here, given Darley's failure to make an adequate record available, the court below properly indulged in the presumption that the proceedings were regular and supported by the evidence (cf. Alford v. Pierno, supra, 27 Cal.App.3d, 690-691, 104 Cal.Rptr. 110). We can only conclude that the court properly denied the writ and other relief requested.

The judgment is affirmed.

FOOTNOTES

1.  The record indicates that Fair Oaks is still operating with federal funds but on a reduced level of services.

2.  Evidence Code section 250 provides: “ ‘Writing’ means handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.”

3.  “The board of supervisors in each county, prior to closing a county hospital or other county medical facility, eliminating any area of service in a county hospital or other county medical facility or reducing the level of services provided to indigents as of January 1, 1975, or prior to leasing, selling, or in any way transferring the management of a county hospital or other county medical facility, shall file with the State Department of Health Services and the appropriate areawide voluntary health planning agency the following:(a) A description of the county's existing facilities and services, the board's proposal for changing those facilities or services, including a plan for providing the eliminated services or facilities through alternative means.(b) A copy of any contracts, agreements, or arrangements with any facility or individual to provide services to indigent people.These documents shall be filed by the county at least 60 days prior to the effective date of such plan for providing the eliminated services or facilities, or any such contracts, agreements or arrangements.“

4.  These provisions pertain to county leases of real estate.

5.  Both sections 1442 and 1442.5 were added by Statutes of 1974, chapter 810, which also stated: “1. The Legislature recognizes the importance of the health care provided by counties to indigent residents through county hospitals and health care facilities. It is the purpose and intent of the Legislature by this act to insure that the duty of counties to provide health care to indigents is properly and continuously fulfilled.” Although the operation of both provisions was temporarily suspended by Statutes of 1978, chapter 292, section 20(c), the appeal is not moot.

TAYLOR, Presiding Judge.

ROUSE and MILLER, JJ., concur.