Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2008-00083355-CU-PT-CTL .Timothy Taylor, Judge. Affirmed.
O'ROURKE, J.
Leonard William Krouner filed a Code of Civil Procedure section 1094.5 petition for a writ of mandate after the California Department of Real Estate (Department) denied his application for a real estate salesperson's license. The trial court denied both Krouner's request to review extra-record evidence and the petition.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
Krouner contends: (1) the Department erroneously found he was in default because he did not attend the administrative hearing, and improperly denied his application without taking into account evidence of his rehabilitation; (2) the trial court erroneously excluded his extra-record evidence and declined to relieve him of default due to mistake, inadvertence and excusable neglect under Government Code section 11520; and (3) Department failed to serve its administrative decision by registered mail under Government Code section 11518. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2005, Krouner applied for a real estate salesperson's license.
In July 2006, Department served Krouner with a "Statement of Issues" recommending denial of his application under Business and Professions Code sections 480, subdivision (a) and 10177, subdivision (b) based on Krouner's disclosures in his application of a misdemeanor conviction for theft of services; and felony convictions for insurance fraud, grand larceny and worker's compensation fraud, which were crimes of moral turpitude resulting in his disbarment in New York, Florida and the District of Columbia.
Krouner requested and received four continuances of the administrative hearing, which was finally scheduled for December 17, 2007.
On November 28, 2007, Department served on Krouner a "First Amended Statement of Issues," again recommending denial of the application on the same grounds set forth in the original statement of issues. On December 1, 2007, Krouner's wife signed the certified return receipt.
Krouner did not attend the December 17, 2007 hearing. Instead, he underwent a colonoscopy on that date. The administrative law judge (ALJ) found him in default for his absence because he was properly served with notice of the hearing and filed a notice of defense to the original statement of issues. The ALJ found true that he was convicted in 1991 of misdemeanor theft of services, and in 2003 for three felonies for (1) submitting fraudulent insurance claims exceeding $3,000; (2) collecting over $1,000 disability insurance payments under false pretenses; and (3) submitting a false worker's compensation claim resulting in an excess disability payment of $1,575. The ALJ found true that based on Krouner's convictions, he was disbarred in New York, Florida and the District of Columbia. The ALJ concluded he did not present sufficient evidence of rehabilitation to support his application.
The ALJ concluded in his proposed decision that all of Krouner's crimes involved theft-related offenses and moral turpitude and were substantially related to the qualifications, functions or duties of a licensee. Further, the disciplinary proceedings and disbarment in three jurisdictions resulted from Krouner's convictions, and would be grounds for disciplinary proceedings against a real estate license holder in California. Noting that the documents presented at the hearing "provided no appreciable mitigation or rehabilitation evidence," the ALJ concluded good cause existed to deny Krouner's application.
The Department commissioner (the Commissioner) adopted the ALJ's proposed decision and denied the application, stating: "There is no statutory restriction on when application may again be made for this license. If and when application is again made for this license, all competent evidence of rehabilitation presented by [Krouner] will be considered."
In January 2008, Krouner requested that the Commissioner reconsider the ALJ's decision because of his medical condition: "During the December 17, 2007 hearing I was undergoing [colonoscopy]. In November and December 2007 I was taking a prescribed medication on a trial basis for nerve pain. Attachment II to this letter/motion identifies the drug and contains an About.com description of the medication's known side effects. Excessive daytime sleep patterns and fatigue during daytime awake periods from the medication limited understanding, analysis and action upon the First Amended Statement of Issues filed on November 28, 2007 which is Attachment C to Attachment III. Nerve pain in the feet and intestinal distress combined with reactions to medication and the surgical procedure in November and December 2007 diverted my attention from this proceeding. [¶] The First Amended Statement of Issues filed on November 28, 2007 alleged new causes of action upon additional facts and requested that a hearing be scheduled.... In November and December 2007 I did not have the energy to verify whether the December hearing date would be rescheduled upon the First Amended Statement of Issues, and was incapable of representing myself for medical reasons." Krouner requested that the Commissioner "[r]eject the proposed decision and refer the case to the same [ALJ] if reasonably available, otherwise to another [ALJ], to take additional evidence" and issue a revised proposed decision as provided for in Government Code section 11517, subdivision (c)(2)(D). The Commissioner denied the request.
Krouner filed a section 1094.5 petition for writ of mandate seeking an order that Department reconsider its decision in light of asserted evidence of his rehabilitation. His petition included a document titled, "Record Portions and Evidence," among which were pleadings relating to his writ petition and Department's statements of issues, exhibits regarding disciplinary proceedings and his rehabilitation in New York and Florida, his correspondence with Department officials, and documents relating to his license application. He also submitted a document titled, "Petitioner's Proposed Findings of Fact and Conclusions of Law," urging the trial court to "avoid further administrative delay... [and consider] the rehabilitation evidence which [he] could not present at the December 17, 2007 hearing he could not attend for medical reasons."
The trial court declined to consider the extra-record evidence and denied the writ petition. Determining that substantial evidence supported the ALJ's finding Krouner received proper notice, the trial court declined to set aside the default, ruling: "Krouner's argument his medical condition on [December 17, 2007] prevented him from determining that the request for a new hearing in the First Amended Statement of Issues did not cancel the [December 17, 2007] hearing date is disingenuous and not a ground for setting aside the default. His claims do not correspond to his own actions. He made no attempt to request a hearing upon receipt of the First Amended Statement of Issues, nor did he make a timely request for a continuance of the [December 17, 2007] hearing. The fact he may have scheduled a colonoscopy for the date, an elective procedure, and a fact unknown to the Respondent, is not justification for non-appearance at the hearing." The trial court concluded the ALJ did not abuse its discretion in denying Krouner's application in light of Krouner's criminal convictions and disbarments, and noted that Krouner may renew his application with Department and present competent evidence of rehabilitation.
DISCUSSION
I.
Standard of Review
An agency's findings are presumed to be correct. (Gardner v. Commission on Professional Competence (1985) 164 Cal.App.3d 1035, 1038, fn. 2.) Section 1094.5, which governs judicial review by administrative mandate of any final order or decision rendered by a state or local agency, provides that the trial court's review shall "extend to the questions whether the [administrative agency] 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 [administrative agency] 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." (§ 1094.5, subd. (b); Bixby v. Pierno (1971) 4 Cal.3d 130, 137 (Bixby).)
"In cases involving applications for a license, the courts have largely deferred to the administrative expertise of the agency. [Citations.] Courts are relatively ill-equipped to determine whether an individual would be qualified, for example, to practice a particular profession or trade. [Citation.] In a case involving the agency's initial determination whether an individual qualifies to enter a profession or trade the courts uphold the agency decision unless it lacks substantial evidentiary support or infringes upon the applicant's statutory or constitutional rights." (Frink v. Prod (1982) 31 Cal.3d 166, 175.) "Our scope of review on appeal from such a judgment is identical to that of the trial court." (Bixby, supra, 4 Cal.3d at p. 149.)
II.
Krouner contends that the Commissioner, in denying the motion for reconsideration, failed to acknowledge his extra-record documents demonstrating grounds for relief from default based on mistake, inadvertence and excusable neglect. (Govt. Code, § 11520, subd. (c).) However, the gravamen of his appellate contention is that the administrative record contains evidence of his rehabilitation. We disagree.
Government Code section 11520, subdivision (a) states: "If the respondent either fails to file a notice of defense or to appear at the hearing, the agency may take action based upon the respondent's express admissions or upon other evidence and affidavits may be used as evidence without any notice to respondent; and where the burden of proof is on the respondent to establish that the respondent is entitled to the agency action sought, the agency may act without taking evidence." Government Code section 11520, subdivision (c) provides a respondent relief from default based on good cause, which includes failure of the person to receive notice served and mistake, inadvertence, surprise or excusable neglect.
Sufficient evidence supports the Commissioner's decision to decline to relieve Krouner of default. Contrary to Krouner's claim, there was no substantive difference between the two statements of issues; both recommended denial of his application on the same grounds. The First Amended statement of issues merely corrected Krouner's disbarment dates in Florida and the District of Columbia, and labeled his criminal convictions and his disciplinary proceedings as separate causes of action.
Nothing in the record supports Krouner's claim for relief from default on grounds of mistake, inadvertence, surprise or excusable neglect. Notwithstanding his assertion in his letters to the Commissioner that "taking a prescribed medication in November and December 2007 deprived him of the energy needed to answer the First Amended Statement of Issues," Krouner did not present evidence explaining his failure to take the simple expedient of sending — or having his wife or someone else send on his behalf — documents relating to his claimed rehabilitation to the ALJ, or requesting — or having his wife or someone else request on his behalf — a continuance based on his health condition. Krouner had previously requested and received four continuances of the hearing date, and therefore was familiar with the procedure and could have requested a fifth one based on his medical condition. His claim that he mistakenly believed the hearing would be rescheduled is not supported by the record evidence; rather, as demonstrated, by his previous requests and grants of continuances, the hearing date did not change unless a party requested it and the ALJ permitted it. In any event, nothing prevented him from simply contacting the ALJ to clarify whether the first amended statement of issues changed the hearing date. We note that Krouner, as an attorney, should be aware of the importance of hearing dates and the consequences of failing to comply with them. The Commissioner did not abuse his discretion in declining to relieve Krouner of default.
We disagree with Krouner's claim that he presented sufficient evidence to support a grant of his application. Rather, the Commissioner's denial of his application is sufficiently supported by the ALJ's factual findings and legal conclusions as outlined above. Specifically, Business and Professional Code, section 480 provides that a board may deny a license to an applicant based on a crime conviction; an act involving dishonesty, fraud or deceit with intent to substantially benefit himself or another, or substantially injure another; or acts which if done by a licentiate of the business or profession would be grounds for suspension or revocation of the license, provided that the crime is substantially related to the profession's qualifications, functions or duties and the applicant has failed to meet the criteria for rehabilitation. Section 10177, subd. (b) of the same code is in acccord and provides that the Commissioner may deny an applicant a license for those same reasons. (Accord, Harrington v. Department of Real Estate (1989) 214 Cal.App.3d 394, 399-403.)
III.
Krouner contends the trial court erroneously declined to review his record portions and evidence submitted with his writ petition, and therefore in declining to relieve him of the default as he had sought. Krouner relies on this extra-record evidence for his contention his "Proposed Findings of Fact and Conclusions of Law" submitted with the writ petition included evidence showing that he was rehabilitated and therefore the Commissioner should have granted the license. He asks this court to exercise its independent judgment to review that evidence.
"In an administrative mandamus action, judicial review is limited to matters in the administrative record. Additional evidence is admissible only if it was not available at the time of the administrative hearing or was excluded improperly from the record; [Appellant] did not establish that either circumstance was present in this case." (Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 975-977 (Evans).) Augmentation of the administrative record is permitted only within the strict limits set forth in section 1094.5, subdivision (e): "Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case." (§ 1094.5, subd. (e); Armondo v. Department of Motor Vehicles (1993) 15 Cal.App.4th 1174, 1180.) "In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented. [Citation.] Determination of the question of whether one of the exceptions applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused." (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 102.)
Krouner made no showing in the trial court that he exercised reasonable diligence in attempting to seek a fifth continuance or to present — either personally or in a lodgment of exhibits — rehabilitation evidence to the hearing officer. In the absence of such evidence, we conclude the trial court did not abuse its discretion in declining to consider the extra-record evidence. Under section 1094.5, subdivision (e), the court was not authorized to exercise its independent judgment to rely on the proffered evidence to determine whether Krouner had shown sufficient rehabilitation for his license application to be granted, or to relieve him of the default judgment. (Accord, Evans, supra, 21 Cal.App.4th at p. 977.)
He in effect concedes that the administrative record lacks evidence of his rehabilitation because he requested that the Commissioner reject the ALJ's proposed decision and order the ALJ to take additional evidence regarding rehabilitation. He also petitioned the trial court to admit such extra-record evidence. In light of our conclusion the trial court did not err in excluding such evidence, any challenge to the Department's decision must be based on the administrative record. Finding no reason to do so, we decline to independently review the extra record evidence.
Krouner also claims he started the application process in August 2005, and satisfied the last rehabilitation requirement to obtain a license in 2007, but Department has demonstrated no substantive reason to deny him the license, and therefore he was denied a "plain, speedy and adequate" administrative remedy under section 1086. The claim lacks merit, and we note that Krouner's requests for continuances contributed to the delay in this case.
IV.
We reject Krouner's contention the Commissioner erred by serving the January 22, 2008 decision by certified mail instead of by registered mail as Government Code section 11518 requires. Government Code section 8311 states, "Wherever any notice or other communication is required by any law to be mailed by registered mail to or by the state, or any officer or agency thereof, the mailing of such notice or other communication by certified mail shall be deemed to be a sufficient compliance with the requirements of such law."
DISPOSITION
WE CONCUR: McCONNELL, P. J., IRION, J.