Opinion
C094473
07-24-2023
JOHN KIELY BALL, Plaintiff and Appellant, v. SPEECH-LANGUAGE PATHOLOGY AND AUDIOLOGY AND HEARING AID DISPENSERS BOARD, Defendant and Respondent.
NOT TO BE PUBLISHED
(Super. Ct. No. 34201780002683CUWMGDS)
RENNER, J.
John Kiely Ball appeals from the trial court's judgment denying his petition for writ of administrative mandate challenging the Speech-Language Pathology and Audiology and Hearing Aid Dispensers Board's (Board) opposition to his requests for continuance of the March 27, 2017 hearing on its petition to revoke his probation.
On appeal, Ball argues the Board abused its discretion in: (1) determining to deprive him of his hearing aid dispenser license, and (2) opposing his final continuance request. The first assertion is forfeited by his failure to raise it in the superior court. As to the second, we are without jurisdiction to review the denial of his requests for continuances. Ball has failed to demonstrate we may separately review the Board's opposition thereto. Accordingly, we will affirm the judgment.
In light of our conclusions, we need not address the Board's argument that the matter is moot because Ball's license expired on July 31, 2016.
I. BACKGROUND
In 2010, the Executive Officer of the Board filed an accusation before the Board against Ball. The accusation alleged Ball violated the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) and made misrepresentations in the fitting or selling of hearing aids. The matter was resolved by a stipulation and order that Ball's hearing aid dispenser license was revoked, but the revocation was stayed and Ball was placed on probation for four years subject to specified conditions.
In 2016, the Executive Officer of the Board filed a petition to revoke Ball's probation alleging: (1) Ball engaged in false advertising; (2) Ball had not paid the citation for this false advertising incident; and (3) Ball failed to submit quarterly declarations as required by his probation conditions.
The hearing on the petition to revoke Ball's probation was initially set for September 6, 2016, before an administrative law judge from the Office of Administrative Hearings. Ball filed two successful motions to continue the hearing. In response to his first motion, the presiding administrative law judge continued the hearing to November 17, 2016. In response to his second motion, the presiding administrative law judge continued the hearing to March 27, 2017, at 9:00 a.m. and stated additional continuances would be "disfavored absent a documented emergency."
On March 17, 2017, Ball submitted a motion to continue the March 27 hearing. The basis for Ball's request was an assertion that he had tentatively retained the services of counsel who was unavailable on the scheduled hearing date, and that he "presently is planning for surgery this April 2017." The Board opposed the request, arguing, in part, that Ball had not submitted documentation of the upcoming medical treatment as required by the previous order granting a continuance. On March 21, Ball filed additional documents in support of his motion for continuance, one of which stated he would have pre-operation appointments the week of March 27. On March 22, 2017, the presiding administrative law judge denied the motion, explaining that good cause had not been provided. On March 24, 2017, Ball submitted an email stating he had an appointment "with USC Surgery" on March 27, 2017, at 9:30 a.m.
At the March 27 hearing, Ball's counsel made a "special appearance" to request a continuance and then withdrew from representing Ball after the request was denied. The administrative law judge explained that Ball had previously requested a continuance, knew of the hearing when the appointment was scheduled, scheduled the appointment recently, and "it raises suspicion for me why [Ball] would schedule an appointment today" and "it feels like he is trying to circumvent this process." The administrative law judge initially indicated she would push the hearing back until 1:30 p.m., before counsel for the Board stated, "I believe it is going to cause Complainant substantial prejudice specifically as to one of my witnesses, who flew down here from Sacramento. She is scheduled to return this afternoon." The administrative law judge decided to start proceedings at 10:30 a.m. Ball did not appear. A default hearing proceeded, after which the administrative law judge issued a proposed decision ordering the revocation of Ball's license. The Board adopted this proposed decision as its decision.
On August 31, 2017, Ball filed a petition for writ of administrative mandate in the superior court challenging the Board's opposition to his requests for continuance of the March 27 hearing. The court denied the petition and entered judgment accordingly. Ball filed a timely notice of appeal therefrom.
II. DISCUSSION
A. Board's Decision to Deprive Ball of License
Ball argues the Board abused its discretion in determining to deprive him of his license. He did not raise this argument in the superior court. Rather, his writ proceeding challenged the Board's opposition to his continuance requests and sought a new hearing that he could attend. "[A] party to an action may not, for the first time on appeal, change the theory of the cause of action" and "issues not raised in the trial court cannot be raised for the first time on appeal." (Estate of Westerman (1968) 68 Cal.2d 267, 279.) On reply, Ball argues he is not barred from challenging the sufficiency of the Board's evidence because he raised the issue in his petition for writ of administrative mandate and his briefing in the superior court. This assertion does not accurately represent either document. As such, we conclude Ball's assertion that the Board abused its discretion in determining to deprive him of his license is forfeited.
B. Board's Opposition to Final Continuance Request
"When an administrative law judge of the Office of Administrative Hearings has been assigned to the hearing, no continuance may be granted except by him or her or by the presiding judge of the appropriate regional office of the Office of Administrative Hearings, for good cause shown." (Gov. Code, § 11524, subd. (a).) Ball argues the Board abused its discretion by unfairly opposing his final continuance request. That request was denied, and Ball did nothing to challenge that ruling until he filed his petition for writ of administrative mandate on August 31, 2017. As the superior court correctly found, the propriety of any decision denying the continuance is barred from judicial review.
Government Code section 11524, subdivision (c), provides, in relevant part: "In the event that an application for a continuance by a party is denied by an administrative law judge of the Office of Administrative Hearings, and the party seeks judicial review thereof, the party shall, within 10 working days of the denial, make application for appropriate judicial relief in the superior court or be barred from judicial review thereof as a matter of jurisdiction."
More than five months passed between the March 27, 2017 hearing and the filing of Ball's petition for writ of administrative mandate. Ball argues his complaints are timely because it is not the Office of Administrative Hearings' decision from which he appeals but the Board's decision to oppose the continuance. "It is the responsibility of the appellant . . . to support claims of error with meaningful argument and citation to authority. [Citations.] When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Ball does not explain how and cites no authority indicating we may review a party's decision to oppose a request for a continuance at all, let alone where we lack jurisdiction to review the ruling on the continuance. Ball has failed to demonstrate the superior court erred in denying his petition for writ of administrative mandate.
C. Rulings Regarding the Record on Appeal
On December 6, 2022, the Board filed a request for judicial notice of a copy of Ball's expired certificate of licensure. On February 15, 2023, Ball filed a second motion to augment the record and a request for judicial notice. We deferred decision pending calendaring and assignment of the panel. We grant the second motion to augment the record as to Exhibit B only-which is the transcript of the administrative proceedings. Exhibit G is already a part of the record. We otherwise deny these requests for judicial notice and the second motion to augment the record because they are irrelevant to the issues we have addressed in this appeal.
III. DISPOSITION
The judgment is affirmed. The Speech-Language Pathology and Audiology and Hearing Aid Dispensers Board shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) &(2).)
WE CONCUR: HULL, ACTING P. J., MESIWALA, J.