Hoag Memorial Hospital Presbyterian v. Kent ( 2019 )


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  • Filed 6/17/19
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION THREE
    HOAG MEMORIAL HOSPITAL
    PRESBYTERIAN,
    Petitioner,                               A153724
    v.                                                 (San Francisco County
    JENNIFER KENT, AS DIRECTOR OF                      Super. Ct. No. CPF-14-513970)
    THE CALIFORNIA DEPARTMENT OF
    HEALTH CARE SERVICES,
    Respondent.
    The central question before us is whether an administrative appeal challenging the
    overall legality of a Medi-Cal audit reduction encompasses a later challenge to an alleged
    calculation error within that same audit for purposes of determining timeliness of the
    calculation error challenge. We find it does not.
    Petitioner Hoag Memorial Hospital Presbyterian (Hoag) is an acute care hospital
    whose patients include beneficiaries of California’s Medi-Cal program. The California
    Department of Health Care Services (the Department) prepared a Medi-Cal audit
    reviewing Hoag’s cost report for fiscal year 2009, including $2,413,623 in audit
    reimbursement reductions mandated by Assembly Bill (AB) 5 and AB 1183. Hoag filed
    an administrative appeal that was a blanket challenge to the legality of those assembly
    bills, and hence the legality of the reimbursement reductions based upon them. Over one
    and one-half years later, Hoag submitted a second administrative appeal regarding an
    alleged $620,903 calculation error that it requested be “incorporated” into the open
    administrative appeal. Hoag alleged that if its global challenge failed, the $2,413,623
    reduction should not include $620,903 stemming from an erroneous calculation of Medi-
    1
    Cal days subject to the reductions required by the assembly bills. The Department’s
    Office of Administrative Hearings and Appeals (OAHA) dismissed the administrative
    appeal of the alleged calculation error as untimely and Hoag filed a petition for writ of
    administrative mandate, which was denied. As Hoag’s legal challenge to the Medi-Cal
    audit reduction is a separate issue from its challenge to the alleged calculation error and
    was therefore untimely, we affirm the dismissal of Hoag’s administrative appeal.
    BACKGROUND
    Hoag is a medical surgical acute care hospital in Newport Beach, California.
    Along with other services, Hoag provides inpatient hospital services to Medi-Cal
    beneficiaries.
    “ ‘The Medi-Cal program [citation] represents California’s implementation of the
    federal Medicaid program [citation], through which the federal government provides
    financial assistance to states so that they may furnish medical care to qualified indigent
    persons. [Citation.] The Department is the single state agency designated to administer
    the Medi-Cal program. [Citation].’ ” (Santa Ana Hospital Medical Center v. Belshe
    (1997) 
    56 Cal. App. 4th 819
    , 822.)
    Hospitals that provide inpatient services to Medi-Cal patients are reimbursed
    either based upon a contractual payment rate or, for hospitals such as Hoag that have no
    negotiated contracts (non-contract hospitals), based upon costs calculated in accordance
    with regulatory formulas. (Mission Hospital Regional Medical Center v. Shewry (2008)
    
    168 Cal. App. 4th 460
    , 474.) Non-contract hospitals submit annual cost reports to the
    Department. The Department then audits the cost reports, makes necessary adjustments
    in the course of the audit, and prepares a final audit report. (Welf. & Inst. Code,
    § 14170.) The audit report may be challenged via an administrative appeal process,
    further discussed below.
    The Medi-Cal reimbursement available to hospitals during the relevant period of
    time was reduced by the passage of AB 5 and AB 1183. (Santa Rosa Memorial Hospital,
    Inc. v. Kent (2018) 25 Cal.App.5th 811, 817–819 (Santa Rosa).) AB 5, as codified,
    provided for a 10% reduction in specified Medi-Cal reimbursement rates for inpatient
    2
    services provided by certain non-contract hospitals beginning July 1, 2008. (Id. at p.
    817.) AB 1183 further reduced payments to certain non-contract hospitals for dates of
    service on or after October 1, 2008 to “to the lesser of 90 percent of audited allowable
    costs or a rate equal to the regional average contract rate minus 5 percent.” (Id. at p.
    818.) The rate reductions in AB 5 and AB 1183 were prospectively eliminated in April
    2011. (Ibid.) In 2009, a number of health care providers and hospitals, including Hoag,
    initiated litigation challenging the AB 5 and AB 1183 reimbursement reductions on the
    ground that they violated provisions of the Medicaid Act (42 U.S.C. § 1396 et seq.)
    governing the substantive and procedural requirements the California Legislature and the
    Department must follow when establishing reimbursement rates. (See Santa Rosa, supra,
    25 Cal.App.5th at p. 814.)
    The Department’s Audit of Hoag’s 2009 Cost Report
    On April 17, 2012, the Department issued its final audit report of Hoag’s cost
    report for its fiscal year ending September 30, 2009 (FYE 2009). The Department found
    that AB 5 and AB 1183 required reductions totaling $2,413,623 to Hoag’s FYE 2009
    reimbursement. After factoring in these reductions, interim payments to Hoag, and
    several other audit adjustments, the Department determined that Hoag had been overpaid
    $149,494 for Medi-Cal services provided during FYE 2009. The final audit report
    notified Hoag that a party could appeal the audit decision in writing, and that “[t]he
    written notice of disagreement must be received by the Department within 60 calendar
    days” from receipt of the report, citing Welfare and Institutions Code, Section 14171 and
    California Code of Regulations, title 22, section 51016, et seq. 1
    May 2012 Administrative Appeal Challenging the Legality of the AB 5 and AB 1183
    Reimbursement Reductions
    On May 19, 2012, Hoag began the administrative appeals process by filing a
    timely Statement of Disputed Issues (SODI) contesting the legality of the AB 5 and AB
    1
    All further undesignated section references are to title 22 of the California Code
    of Regulations.
    3
    1183 reimbursement reductions contained in the April 17, 2012 final audit report.
    Hoag’s “Provider’s Position” set forth in the SODI was, in full, as follows: “Effective
    July 1, 2008 the [Department] implemented AB 5; imposing a ten percent reduction in
    Medi-Cal rates for non-contract hospitals pursuant to the California Welfare &
    Institutions Codes § 14105.19 and § 14166.245. On September 30, 2008, the
    [Department] implemented AB 1183; reducing the Medi-Cal reimbursement for non-
    contract hospitals to equal the lesser of a ten percent reduction or to five percent below
    the applicable average rate paid by the California Medical Assistance Commission,
    pursuant to California Welfare & Institution Code § 14166.245. [Hoag] believes that
    these Medi-Cal rate reductions are illegal because they violate federal and state laws and
    regulations and provisions of the state and federal constitutions. [Hoag] is represented in
    several different lawsuits that challenge the enactment and implementation of AB 5 and
    AB 1183. The federal courts preliminary [sic] enjoined the application of both rate
    reductions because the [Department] did not comply with the federal statutory
    requirements that payments be consistent with efficiency, economy, quality of care, and
    access to care pursuant to 42 U.S.C. § 1396a(a)(30)(A). The amount in dispute for
    AB 5/AB 1183 is ($2,413,638).” As is evident, Hoag focused exclusively on the global
    issue of the legality of the AB 5 and AB 1183 reductions and raised no issued as to
    particular audit calculations. Similarly, the referenced lawsuits challenged the overall
    legality of the AB 5 and AB 1183 reductions and sought to void the reductions in their
    entirety. (See Santa Rosa, supra, 25 Cal.App.5th at p. 814.)
    On May 29, 2012, the OAHA notified Hoag and the Department that the SODI
    had “been received and accepted as a valid appeal,” and that the case would be “held in
    abeyance” pending the outcome of litigation pertaining to AB 5 and AB 1183.
    December 2013 Alleged Calculation Error Challenge
    On December 12, 2013, over 18 months after the May 2012 SODI was submitted,
    Hoag submitted a second SODI requesting that a “disputed issue be incorporated into the
    open appeal.” The new issue was whether the Department erroneously included “nursery
    days” (days of covered inpatient nursery care) in a calculation of the number of Medi-Cal
    4
    days subject to the reimbursement reductions required under AB 1183. Hoag stated that
    it “disputes and appeals the Medi-Cal payment reduction calculation of $2,413,623
    implemented by AB 5 and AB 1183 as it incorrectly includes Nursery Days in the
    determination not in accordance with the applicable instruction and regulation.”
    Specifically, Hoag alleged the Department “incorrectly includes 448 Nursery Days” in its
    calculation of the $2,413,623 reimbursement, and it identified the amount in dispute
    based on this new issue as $620,903. Neither Hoag’s initial SODI nor the parallel legal
    challenges to the assembly bills addressed the cost calculation of eligible Medi-Cal days
    under AB 1183 at issue in Hoag’s second SODI.
    Two weeks later, on December 27, the OAHA sent a notice informing Hoag and
    the Department that the December 12 letter “has been accepted as an appeal of the
    identified issues” and setting a formal hearing date. On January 13, 2014, counsel for the
    Department sent an email to the assigned Administrative Law Judge (ALJ) asking for
    clarification of the “open appeal” reference: “[t]here appears a significant gap in time
    between [the May 19, 2012 SODI and the December 12, 2013 letter] where it seems
    something may be missing . . . .” Two days later, the ALJ responded by email,
    explaining “[a]s I look at the file, it appears that issue 1 and issue 2 are the same issue.
    First an informal hearing was requested, and then a formal one.” However, less than an
    hour later, the ALJ sent a follow up email, stating that “[a]ctually, it appears [Hoag] has
    requested a new issue be included.” The ALJ explained that “[n]ormally, my office
    would issue an order to show cause why that issue should be accepted,” but suggested
    that the parties set a time to discuss the matter. Counsel for Hoag responded: “[l]ong and
    short of it, we had an open appeal for Hoag’s case at the time, and we added an issue.
    It’s really a math issue regarding the State’s use of Nursery days that should not have
    been included in the calculation. It’s a correction of a calculation error.”
    Dismissal of Hoag’s Administrative Appeals
    In January 2014, the OAHA issued an order to show cause requiring Hoag to
    demonstrate why its administrative appeals should not be dismissed on the grounds that:
    (1) “the issue raised in the [May 2012] SODI as to the validity, legality or
    5
    constitutionality of AB 5 and AB 1183 is beyond the jurisdiction of this Tribunal,” and
    (2) Hoag’s appeal of the issue in the December 2013 SODI “that the AB 5 and AB 1183
    adjustment ‘incorrectly includes Nursery Days in the determination, (which is) not in
    accordance with applicable instruction and regulation’ ” was not raised within 60
    calendar days of receipt of the written notice of the audit findings and were thus waived.
    The parties submitted briefing in response.
    In May 2014, the administrative appeals were dismissed on the grounds stated in
    the order to show cause. In rejecting Hoag’s contention that the appeal of the alleged
    calculation error was timely as “just an elaboration of the same adjustment raised in the
    original SODI,” the ALJ cited to section 51022(d) (providing each issue raised in a SODI
    must be set forth separately) and found the issues were “clearly different issues with
    different financial affects [sic], even if they [were] related to the same adjustment.
    Accordingly, the issue of the calculation of the nursery days [was] a separate issue and
    was not raised in a timely manner.” The ALJ rejected Hoag’s contention that it should
    have been granted 30 days after the notice of deficiency to file an amended SODI since
    the 30-day provision does not apply to an untimely SODI but rather to an insufficient, but
    timely, SODI. (§ 51022, subd. (d).) The ALJ further explained that, under section
    51022, subdivision (c), all late requests shall be denied unless the provider establishes
    good cause for the late filing within 15 days of being notified of the untimeliness, and
    that Hoag “was given well in excess of that amount of time to show good cause of late
    filing because [Hoag] was notified of the untimeliness of its request to include the
    nursery days issue on January 28, 2014, and given until April 14, 2014 [the due date of
    Hoag’s reply brief on the order to show cause], to establish good cause for the lateness of
    the request.”
    Writ of Administrative Mandate
    Hoag filed a petition for a writ of administrative mandate seeking to reverse the
    ALJ’s dismissal. (Welf. & Inst. Code, § 14171, subd. (j) [“[t]he final decision of the
    director shall be reviewable in accordance with Section 1094.5 of the Code of Civil
    Procedure . . . .”].) The trial court denied Hoag’s petition on December 13, 2017 in
    6
    regards to Hoag’s appeal of the calculation issue, and affirmed “[t]he dismissal of the
    [SODI] dated December 12, 2103, seeking to reduce the [$2,413,623] of the
    Department’s Report on the Cost Report Review for Hoag for [FYE 2009] by $620,903
    because of a claimed error in nursery days . . . .” The trial court remanded the petition to
    the OAHA in regards to the issue of the legality of AB 5 and AB 1183, but ordered that it
    be held in abatement pending a final resolution of Santa Rosa, supra, 25 Cal.App.5th
    811. On July 31, 2018, the Santa Rosa case was issued; it affirmed the trial court’s denial
    of the petition of writ of mandate, held the providers could not obtain a writ of mandate
    against state officials to challenge reimbursement rates approved by a federal agency, and
    rejected the contention that the AB 5 and AB 1183 reimbursement rates were invalid
    under applicable procedural requirements. (Id. at p. 814.)
    Hoag timely appealed the portion of the judgment affirming the dismissal of the
    administrative appeal contained in the December 2013 SODI.
    DISCUSSION
    I.     Standard of Review
    The appellate scope of review from a judgment on a petition for writ of mandate is
    the same as that of the trial court. (Department of Corrections & Rehabilitation v. State
    Personnel Board (2015) 
    238 Cal. App. 4th 710
    , 716 (State Personnel Board).)
    “ ‘When reviewing the denial of a petition for writ of administrative mandate
    under Code of Civil Procedure section 1094.5, we ask whether the public agency
    committed a prejudicial abuse of discretion.’ ” (Hi-Desert Medical Center v. Douglas
    (2015) 
    239 Cal. App. 4th 717
    , 730 (Douglas).) Abuse of discretion is established if the
    Department “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.” (Civ.
    Code, § 1094.5.) “If a question of law is presented, we undertake a de novo review of the
    [Department’s] ruling.” (State Personnel Board, supra, 238 Cal.App.4th. at pp. 716–717;
    see also Douglas, supra, 
    239 Cal. App. 4th 717
    , 730 [“ ‘[a]s to questions of law, appellate
    courts perform essentially the same function as trial courts in an administrative mandate
    proceeding, and the trial court’s conclusions of law are reviewed de novo. [Citation]’ ”].)
    7
    Furthermore, we “also recognize that courts show deference to an administrative body’s
    reasonable construction of relevant statutory provisions within its field of expertise.”
    (State Personnel Board, supra, 238 Cal.App.4th at p. 717.)
    As this matter before us presents purely legal issues, we review de novo the
    dismissal of Hoag’s administrative appeal regarding the alleged calculation error.
    II.    The Dismissal of Hoag’s Administrative Appeal of the Calculation Error Was
    Not an Abuse of Discretion
    The parties do not dispute the dates and central issue – Hoag filed its first
    administrative appeal challenging the legality of the AB 5 and AB 1183 reductions in
    May 2012 and then, in December 2013, sought to add its administrative appeal of an
    alleged calculation error in the AB 1183 adjustment on the basis that it could be
    “incorporated” into the timely filed original administrative appeal.
    We find no abuse of discretion in the dismissal of Hoag’s administrative appeal of
    the alleged calculation error issue. Hoag did not request a hearing on the issue within 60
    days of receipt of the Department’s audit report as the appeal of the alleged calculation
    error does not relate back to the date of the initial administrative appeal concerning the
    legality of reductions taken pursuant to AB 5 and AB 1183. (See § 51022.) The OAHA
    notice stating “acceptance” of Hoag’s calculation error administrative appeal does not
    affect the timeliness determination.
    A. The Calculation Error Administrative Appeal was Separate and Distinct
    from the Administrative Appeal Challenging the Lawfulness of AB 5 and AB
    1183
    Section 14171, subdivision (a), of the Welfare and Institutions Code provides that
    the director of the Department “shall establish administrative appeal processes to review
    grievances or complaints arising from the findings of an audit” and the Department did
    so. (§ 51016, et seq.) Under the administrative appeals process, a provider “may request
    a hearing for any disputed audit or examination finding” according to the process set
    forth in section 51022. (§ 51022, subd. (a).) To request a hearing, “[a] written request
    8
    shall be filed with the Department within 60 calendar days of the receipt of the written
    notice of the audit or examination findings.” (§ 51022, subd. (a)(1).) The written request
    is known as the “Statement of Disputed Issues” (SODI) and may be amended at any time
    during the 60-day period following receipt of the written notice of the audit. (§ 51022,
    subds. (a)(2), (d).)
    Hoag’s May 2012 SODI challenged the lawfulness of the $2,413,623 Medi-Cal
    reimbursement reduction made pursuant to AB 5 and AB 1183. In this SODI, Hoag
    specifically “disputes and appeals the Medi-Cal payment reduction of ($2,413,623)
    implemented by AB 5 and AB 1183” and stated that it “believes that these Medi-Cal rate
    reductions are illegal because they violate federal and state laws and regulations and
    provisions of the state and federal constitutions.”
    Although the date on which Hoag received the April 17, 2012 audit report is not
    clear from the record, Hoag necessarily received it by May 19, 2012, the date it submitted
    its first SODI. Under the 60-day time limit, Hoag had, at most, until July 18, 2012 to
    dispute the results of the audit by filing a SODI specifically listing “each issue as are in
    dispute” and “setting forth [its] contentions as to those issues and the estimated amount
    each issue involves.” (§ 51022, subds. (a)(2), (d).) Instead, Hoag filed a second SODI
    challenging the alleged calculation error by letter dated December 13, 2013 requesting
    that an additional “disputed issue be incorporated into the open appeal.” Hoag identified
    the new issue as “Issue #2” and stated that it “disputes and appeals the Medi-Cal payment
    reduction calculation of ($2,413,623) implemented by AB 5 and AB 1183 as it
    incorrectly includes Nursery Days in the determination not in accordance with the
    applicable instruction and regulation,” and that the Department incorrectly includes “448
    Nursery Days,” valued at $620,903, in its overall $2,413,623 reimbursement reduction.
    Hoag argues that because it filed an administrative appeal challenging the legality
    of the Department’s finding that AB 5 and AB 1183 required a $2,413,623 adjustment, it
    should be permitted to belatedly appeal a separate issue contesting a specific $620,903
    adjustment calculation that constituted a portion of the total $2,413,623 adjustment. It
    asserts that, “[u]nder Section 51022, a Provider does not appeal ‘issues,’ it appeals ‘any
    9
    disputed audit or examination finding’ ” and contends that the calculation challenge was
    “only elaborating on” the earlier challenge to the lawfulness of the AB 5 and AB 1183
    reductions. In so doing, Hoag ignores the clear statutory requirements that administrative
    appeals of Medi-Cal audits must be specific as to each contested issue and ignores the
    reality that the “math issue” was a completely new and distinct challenge.
    Welfare and Institutions Code section 14171, subdivision (e)(1), provides that the
    administrative appeal of a Medi-Cal audit is initiated by a “timely and specific statement
    of disputed issues by the provider.” (Italics added.) The regulations governing the
    administrative appeals process are consistent with this mandate. Section 51022 of the
    California Code of Regulations, title 22, requires that a provider submit a SODI that
    “shall be specific as to each issue as are in dispute, setting forth the provider’s
    contentions as to those issues and the estimated amount each issue involves” in order to
    “request a hearing for any disputed audit or examination finding.” (§ 51022, subds. (a),
    (d).) This requirement of issue specificity ensures that the Department has notice and an
    opportunity to investigate and resolve providers’ grievances and complaints.
    The cases cited by Hoag are inapposite to the case before us and do not suggest
    that a provider, after timely appealing an audit finding, may add a separate and distinct
    issue to its appeal without complying with the 60-day timeliness requirement. (See
    Kaiser Foundation Hospitals v. Belshe (1997) 
    54 Cal. App. 4th 1547
    , 1556 fn. 4 [hospital
    could not request a hearing to examine disputed audit findings where there was no
    adjustment in the amount claimed by the hospital]; Coastal Community Hospital v.
    Belshe (1996) 
    45 Cal. App. 4th 391
    , 394–395 [administrative appeals process does not
    permit hospitals to appeal Department’s decision to accept their cost reports as filed,
    rather than perform an audit, because the “pre-acceptance review” of the costs reports did
    not constitute an “audit or examination” that would trigger a right of appeal]; Palmdale
    Hospital Medical Center v. Department of Health Services (1990) 
    8 Cal. App. 4th 1306
    ,
    1316 [court held that there are different review processes and provisions for review of
    “the findings of an audit or examination [citation] and the determination of a tentative or
    final settlement based on those findings.” ]
    10
    On the contrary, courts have recognized that section 51022 mandates a provider to
    timely identify issues in order to commence the administrative appeal process. (See
    County of San Joaquin v. Belshe (1995) 
    35 Cal. App. 4th 6
    , 10 [under sections 51017 and
    51022, a provider’s appeal from the settlement of an audit “must specify the disputed
    issues in writing. [Citations]. Only these issues will be reviewed.”]; Mission Community
    Hospital v. Kizer (1993) 
    13 Cal. App. 4th 1683
    , 1688 [under section 51022, “[i]f a
    provider is dissatisfied with audit findings, the provider may appeal by filing a statement
    of disputed issues within 60 days of the receipt of the written audit findings”].)
    In sum, we find that Hoag was required to set forth each issue it was appealing,
    including its contentions as to each issue and the estimated amount of each issue, within
    the 60-day time frame set forth in section 51022. We reject Hoag’s contention that its
    administrative appeal of the legality of the “finding” of the $2,413,623 reduction
    mandated by AB 5 and AB 1183 included the separate challenge to the alleged $620,903
    adjustment calculation error as the contentions underlying the two challenges are
    completely distinct, as are the amounts at issue. (See § 51022, subd. (d) [a SODI “shall
    be specific as to each issue as are in dispute, setting forth the provider’s contentions as to
    those issues and the estimated amount each issue involves”].) Therefore, we find the ALJ
    properly exercised discretion in dismissing the administrative appeal of the alleged
    calculation error as untimely.
    B. The OAHA Notices Accepting Hoag’s Administrative Appeals do not
    Determine the Timeliness Issue
    The OAHA notified Hoag that the May 19, 2012 SODI “has been received and
    accepted as a valid appeal.” The OAHA also notified Hoag that its December 12, 2013
    letter “has been accepted as an appeal of the identified issues.” Neither letter makes any
    statement regarding timeliness. Hoag argues that these receipt notifications constitute an
    implicit concession regarding timeliness because the Department’s “acceptance of the
    two appeal letters was authoritative,” and “[t]here is nothing in the appeal regulations in
    title 22 which authorizes the hearing officer to revoke the Department’s acceptance of the
    appeal.”
    11
    Hoag has not provided to us, and did not provide to the trial court, any legal
    authority in support of its position that an OAHA notice accepting an administrative
    appeal constitutes a determination of timeliness or precludes the presiding ALJ from
    making a timeliness determination. Hoag simply refers to Welfare and Institutions Code
    section 14171(g), which states that “a provider who prevails in an appeal of a disallowed
    payment shall be entitled to interest at the rate [calculated] . . . . commencing on the date
    the appeal is formally accepted by the department or the date payment is received by the
    department, whichever is later.” (Italics added). This provision addresses interest
    calculations, not timeliness. Therefore, we reject Hoag’s contention that the notices
    constitute a final determination of the timeliness of its appeal of the alleged calculation
    error issue.
    III.   Hoag Has Waived Any Good Cause Argument for its Delay
    Under section 51022, subdivision (c), all late SODIs “shall be denied and the audit
    . . . findings deemed final unless the provider establishes in writing good cause for late
    filing within 15 calendar days of being notified of the untimeliness of its request.”
    Hoag was given approximately two and one-half months, far more than 15 days, to
    respond to the order to show cause regarding dismissal for lack of timely filing. In
    contrast to the good cause arguments that Hoag now attempts to assert, including that it
    would be unreasonable to expect it to immediately “audit the audit” upon its receipt,
    Hoag responded to the order to show cause by asserting to the ALJ it was just “an
    independent and simple calculation error in the same audit finding.” Hoag did not raise
    any justification for the late filing and instead took the position that it was timely
    because: (1) it was not subject to the 60-day requirement of section 51022, subdivision
    (a), as it related to the same “finding” that was at issue in its challenge to the lawfulness
    of the AB 5 and AB 1183 reductions; (2) the Department “explicitly accepted” its second
    SODI by issuing the December 19, 2013 notice; and (3) it should have been granted an
    additional 30 days under section 51022, subdivision (d)(1), to file an amended SODI.
    These are substantive issues that we have addressed, and rejected, above.
    12
    Therefore, Hoag has waived its good cause for delay argument for failure to make
    that argument in the administrative proceedings below. (See City of Pleasanton v. Board
    of Administration (2012) 
    211 Cal. App. 4th 522
    , 541 [court found that employee waived
    arguments not presented in administrating proceeding, noting that “[t]he courts have
    consistently held that parties may not advance new theories in the courts that were not
    presented to the administrative agency”]; NBS Imaging Systems, Inc. v. State Board of
    Control (1997) 
    60 Cal. App. 4th 328
    , 337 [trial court erred in granting petition for writ of
    mandate based on a theory that was never presented during administrative proceeding
    because “the hearing officer and the board had no opportunity to evaluate the . . . import
    of these tardy assertions and the superior court had no authority to consider them”].)
    DISPOSITION
    The judgment is affirmed. The Department is entitled to recover its costs on
    appeal.
    13
    _________________________
    Petrou, J.
    WE CONCUR:
    _________________________
    Siggins, P.J.
    _________________________
    Wiseman, J. *
    A153724
    *
    Retired Associate Judge of the Court of Appeal, Fifth Appellate District,
    assigned by the Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    14
    Trial Court: San Francisco County Superior Court
    Trial Judge: Harold E. Kahn
    Counsel:    Weiss & Zaman, Thomas Joel Weiss, for Petitioner.
    Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Senior Assistant
    Attorney General, Susan M. Carson, Supervising Deputy Attorney
    General, Joshua N. Sondheimer, Deputy Attorney General, for
    Respondent.
    15
    

Document Info

Docket Number: A153724

Filed Date: 6/17/2019

Precedential Status: Precedential

Modified Date: 6/17/2019