a superior court order granting a writ of mandate compelling him. to answer interrogatories propounded by respondent Romero.
Question Presented
In this administrative disciplinary proceeding are section 11507.5 and 11507.6 of the Government Code applicable and what interrogatories is appellant Labor Commissioner required to answer ?
Record
A hearing officer recommended in a proposed decision that respondent be exonerated of all charges. Appellant, did not adopt the proposed decision but instead referred the matter to another hearing officer to take additional evidence.
Before a second hearing respondent served appellant with the written interrogatories set forth in footnote 2
, request
ing that they be answered “under oath pursuant to Section 2030 of the California Code of Procedure.” Appellant refused to answer, stating that “ [a]lthough . . . [appellant] recognized there to exist a right to discovery in Administrative Proceedings,” appellant did not feel there existed any
right to interrogatories. Appellant offered to give, on written request but not on interrogatories, the names, addresses and' occupations of each person intended to be called as a witness.
Thereupon, respondent petitioned the superior court' for a writ of mandate to compel appellant to answer the interrogatories. After a hearing the court granted a peremptory writ compelling appellant to answer the interrogatories but stayed the pending disciplinary proceedings until after this appeal is determined.
Sections'"11507.5 and 11507.6
The judgment was entered May 14, 1968. Then sections 11500 et seq. of the Government Code, the Administrative Procedure Act, contained no provision authorizing the service of interrogatories upon an adverse party such as is found in section 2030 of the Code of Civil Procedure. Nor does it now contain such a provision. The Administrative Procedure Act. then and now provided' for the taking of the
deposition
of any material witness upon an order of the accusing agency after a verified showing, inter alia, that the witness would be unable or could not be compelled to attend the disciplinary hearing. (Gov. Code, §11511.) However, this latter provision did not afford
discovery
even by the limited mode of depositions.
(Shively
v.
Stewart
(1966) 65 Cal.2d 475, 479 [55 Cal.Rptr. 217, 421 P.2d 65].)
Except for disciplinary proceedings before the State Bar, which is
sui generis
and functions as an arm of the Supreme Court in such matters
(Brotsky
v.
State Bar
(1962) 57 Cal.2d 287, 298-301 [19 Cal.Rptr. 153, 368 P.2d 697, 94 A.L.R.2d 1310]), the Civil Discovery Act (Code Civ. Proc., § 2016 et seq) does not apply to administrative adjudication, (See
Shively
v.
Stewart, supra; Everett
v.
Gordon
(1968) 266 Cal.App.2d 667 [72 Cal.Rptr. 379]; Comments,
Discovery in State Administrative Adjudication
(1958), 56 Cal.L.Rev. 756; and
Discovery Prior to Administrative Adjudications
—
A Statutory Proposal
(1964) 52 Cal.L.Rev. 823.)
As will hereinafter appear, the courts provided a limited form of discovery in administrative proceedings, somewhat akin to discovery allowed in criminal proceedings. The trial court determined this proceeding under the law as it then stood. The appeal was filed in this case on June 13, 1968. Effective November 13, 1968, sections 11507.5 and 11507.6 were added to the Government Code. Those sections are appli
cable tó disciplinary proceedings before the Labor Commission. (Gov. Code, § 11501.)
In general, section 11507.6 by omitting the requirement of showing “good cause”, broadens the scope of administrative discovery beyond that theretofore provided by the courts.
;£.. . Statutes affecting only matters of procedure are applicable to actions which are pending when the statute becomes effective.”
(National Auto. & Cas. Ins. Co.
v.
Downey
(1950) 98 Cal.App.2d 586, 590 [220 P.2d 962].) “An action is deemed to be pending from the time of its commencement
until its final determination upon appeal. . . .” (Code Cov. Proc., § 1049.)
Before determining the applicability to this proceeding of sections 11507.5 and 11507.6, it is well to determine the status of discovery in administrative proceedings before the enactment of those statutes and at the time of the issuance of the writ of mandate in the instant case.
The two cases dealing with discovery in administrative proceedings are
Shively
v.
Stewart, supra,
65 Cal.2d 475, and
Everett
v.
Gordon
(1968) 266 Cal.App.2d 667 [72 Cal.Rptr. 379].
In
Shively
the petitioners seeking discovery were licensed physicians facing criminal charges' in administrative disciplinary proceedings which could have resulted in revocation, of their licenses.
Finding that “ [t]he criminal law analogy is appropriate,” the Supreme Court said, 11 [t]he Legislature’s silence with respect to prehearing discovery in administrative proceedings does not mean, however, that it has rejected such discovery. Instead, as in the case of criminal discovery . . ., it has left to the courts the question whether modern concepts of administrative adjudication call for common law rules to permit and regulate the use of the agencies’ subpoena power to secure prehearing discovery.” (65 Cal.2d at p. 479.) Shively held that the petitioners there were entitled to subpoenas duces tecum for the production of written statements of material witnesses (alleged abortionists’ patients and husbands of the latter) and copies of the petitioners’ writings with respect to treatment given the women. The Supreme Court also held that the petitioners were not entitled to production of all-reports and documents gathered by investigators and employees of the State Board of Medical Examiners because the petitioners’ request amounted to no more than “a wish for the-benefit of all the information in the adversary’s files,” and they had made-no “additional showing of need and specificity.” (P. 482.)
In
Everett
v.
Gordon, supra,
266 Cal.App.2d 667, 672, the court said,
“Shivley
v.
Stewart
. . . recognizes that, upon a proper showing being made, the accused in an administrative disciplinary proceeding, may depose an executive employee of a public agency for a
limited
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a superior court order granting a writ of mandate compelling him. to answer interrogatories propounded by respondent Romero.
Question Presented
In this administrative disciplinary proceeding are section 11507.5 and 11507.6 of the Government Code applicable and what interrogatories is appellant Labor Commissioner required to answer ?
Record
A hearing officer recommended in a proposed decision that respondent be exonerated of all charges. Appellant, did not adopt the proposed decision but instead referred the matter to another hearing officer to take additional evidence.
Before a second hearing respondent served appellant with the written interrogatories set forth in footnote 2
, request
ing that they be answered “under oath pursuant to Section 2030 of the California Code of Procedure.” Appellant refused to answer, stating that “ [a]lthough . . . [appellant] recognized there to exist a right to discovery in Administrative Proceedings,” appellant did not feel there existed any
right to interrogatories. Appellant offered to give, on written request but not on interrogatories, the names, addresses and' occupations of each person intended to be called as a witness.
Thereupon, respondent petitioned the superior court' for a writ of mandate to compel appellant to answer the interrogatories. After a hearing the court granted a peremptory writ compelling appellant to answer the interrogatories but stayed the pending disciplinary proceedings until after this appeal is determined.
Sections'"11507.5 and 11507.6
The judgment was entered May 14, 1968. Then sections 11500 et seq. of the Government Code, the Administrative Procedure Act, contained no provision authorizing the service of interrogatories upon an adverse party such as is found in section 2030 of the Code of Civil Procedure. Nor does it now contain such a provision. The Administrative Procedure Act. then and now provided' for the taking of the
deposition
of any material witness upon an order of the accusing agency after a verified showing, inter alia, that the witness would be unable or could not be compelled to attend the disciplinary hearing. (Gov. Code, §11511.) However, this latter provision did not afford
discovery
even by the limited mode of depositions.
(Shively
v.
Stewart
(1966) 65 Cal.2d 475, 479 [55 Cal.Rptr. 217, 421 P.2d 65].)
Except for disciplinary proceedings before the State Bar, which is
sui generis
and functions as an arm of the Supreme Court in such matters
(Brotsky
v.
State Bar
(1962) 57 Cal.2d 287, 298-301 [19 Cal.Rptr. 153, 368 P.2d 697, 94 A.L.R.2d 1310]), the Civil Discovery Act (Code Civ. Proc., § 2016 et seq) does not apply to administrative adjudication, (See
Shively
v.
Stewart, supra; Everett
v.
Gordon
(1968) 266 Cal.App.2d 667 [72 Cal.Rptr. 379]; Comments,
Discovery in State Administrative Adjudication
(1958), 56 Cal.L.Rev. 756; and
Discovery Prior to Administrative Adjudications
—
A Statutory Proposal
(1964) 52 Cal.L.Rev. 823.)
As will hereinafter appear, the courts provided a limited form of discovery in administrative proceedings, somewhat akin to discovery allowed in criminal proceedings. The trial court determined this proceeding under the law as it then stood. The appeal was filed in this case on June 13, 1968. Effective November 13, 1968, sections 11507.5 and 11507.6 were added to the Government Code. Those sections are appli
cable tó disciplinary proceedings before the Labor Commission. (Gov. Code, § 11501.)
In general, section 11507.6 by omitting the requirement of showing “good cause”, broadens the scope of administrative discovery beyond that theretofore provided by the courts.
;£.. . Statutes affecting only matters of procedure are applicable to actions which are pending when the statute becomes effective.”
(National Auto. & Cas. Ins. Co.
v.
Downey
(1950) 98 Cal.App.2d 586, 590 [220 P.2d 962].) “An action is deemed to be pending from the time of its commencement
until its final determination upon appeal. . . .” (Code Cov. Proc., § 1049.)
Before determining the applicability to this proceeding of sections 11507.5 and 11507.6, it is well to determine the status of discovery in administrative proceedings before the enactment of those statutes and at the time of the issuance of the writ of mandate in the instant case.
The two cases dealing with discovery in administrative proceedings are
Shively
v.
Stewart, supra,
65 Cal.2d 475, and
Everett
v.
Gordon
(1968) 266 Cal.App.2d 667 [72 Cal.Rptr. 379].
In
Shively
the petitioners seeking discovery were licensed physicians facing criminal charges' in administrative disciplinary proceedings which could have resulted in revocation, of their licenses.
Finding that “ [t]he criminal law analogy is appropriate,” the Supreme Court said, 11 [t]he Legislature’s silence with respect to prehearing discovery in administrative proceedings does not mean, however, that it has rejected such discovery. Instead, as in the case of criminal discovery . . ., it has left to the courts the question whether modern concepts of administrative adjudication call for common law rules to permit and regulate the use of the agencies’ subpoena power to secure prehearing discovery.” (65 Cal.2d at p. 479.) Shively held that the petitioners there were entitled to subpoenas duces tecum for the production of written statements of material witnesses (alleged abortionists’ patients and husbands of the latter) and copies of the petitioners’ writings with respect to treatment given the women. The Supreme Court also held that the petitioners were not entitled to production of all-reports and documents gathered by investigators and employees of the State Board of Medical Examiners because the petitioners’ request amounted to no more than “a wish for the-benefit of all the information in the adversary’s files,” and they had made-no “additional showing of need and specificity.” (P. 482.)
In
Everett
v.
Gordon, supra,
266 Cal.App.2d 667, 672, the court said,
“Shivley
v.
Stewart
. . . recognizes that, upon a proper showing being made, the accused in an administrative disciplinary proceeding, may depose an executive employee of a public agency for a
limited
purpose.” The court of appeal then explained what such “limited purpose” was by noting that “the use of the word ‘depositions’ in . . .
Shively
was intended to be
limited
in its application to the production of
evidentiary material which the witness has in his possession or under his control.” (Id. at p. 673.) Using the analogy of the criminal law, Everett held that licensed real estate brokers were no't entitled to take the depositions of material witnesses (a property owner and sale negotiator) for general discovery purposes. The court further said that the brokers would have the opportunity of showing good cause for the propounding of interrogatories to the Real Estate Commissioner who had instituted a disciplinary proceeding against them by accusation. The appeals court in
Everett
had none of the proposed interrogatories before it.
In cases where depositions can be used for administrative discovery, no logical reason exists why interrogatories cannot be used too for the production of evidentiary material which the commissioner-has in hi$ possession or under his control.
Comparing the discovery provided for in section 11507.6 with the discovery heretofore allowed by the courts in administrative matters (namely, discovery -akin to that allowed in criminal matters), there is practically no difference between the two as to the information obtainable. The main difference between the two methods is that the code section eliminates the requirement of showing good cause for obtaining the information required by the section to be disclosed, while under the
Shively
rule, as to some of the information, good cause to receive it must be shown. We see. no reason why the rule allowing application of procedural changes should not apply in this case.
Although section 11507.6 provides that requests for the information permitted by the statute are to be made within a certain 15-day period, and that period had expired before the enactment of the statute, there appears to be no reason why under the circumstances that limitation should not be disregarded.
Respondent requested that his interrogatories be answered under oath. We find no such oath requirement as to interrogatories, under the
Shively
rule and hence no difference in that respect between the two procedures.
It should be pointed out that neither
Shively
nor
Everett
discuss the right to
interrogatories
nor does section 11507.6" mention interrogatories. Both cas,es dealt with the discovery of information by subpoena duces tecum to obtain depositions and documents.
Section 11507.6 does not, in terms, provide for interrogatories. It provides for written requests.
Shively, Everett
and section 11507.6, because of “modern concepts, of administrative adjudication”
(Shively,
p. 479), provide for the discovery of certain information. We see no reason why respondent should be denied that information because he asked for.it in interrogatories rather than in requests.
This brings us to the question, applying section 11507.6, which interrogatories is appellant required to answer ?
Interrogatories Appellant Must Answer
Interrogatory 2. Names, etc., of persons intended to be called as witnesses at the hearing.
Interrogatory 3. Names, etc., of perstins known to be witnesses of the incidents referred to in the amended accusation.
Interrogatory 4. Whether statements have been obtained from any of the foregoing persons..
Interrogatory 5. Data concerning such statements and whether copies will be furnished without formal motion to produce.
Interrogatory 6. Has investigation been made of respondent’s activities subsequent to June 12,1967 ?
Interrogatory 7. Data concerning such investigation and if reports were made will they be made available without motion to produce ?
Interrogatory 9. Addresses of certain persons, only, however, if they are in any of the foregoing categories. Otherwise, they are not shown to be connected with this proceeding.
Interrogatory 12. Existence of photographs.
Interrogatory 13. Data concerning photographs and will copies be supplied without motion to produce ?
Interrogatories Which Appellant Need Not Answer
At oral argument counsel for respondent conceded that he is not entitled to answers to Interrogatories 10, 11, 14 and 15. Interrogatory 1, identity “of all persons, .. . . having knowledge of relevant facts” is in the same category. Obviously these are “shotgun” requests “as broad as space” (cf.
City of Los Angeles
v.
Superior Court
(1961) 196 Cal.App.2d 743, 748 [16 Cal.Rptr. 851]).
Interrogatory 8 is repetitious of Interrogatory 2 and need not be answered.
Thus, Interrogatories 1, 8, 10, 11, 14 and 15 need not be answered.
While we are applying section 11507.6, it should be pointed out that substantially the same results would follow if we applied the
Shively
and
Everett
rule.
The order, granting the writ of mandate is modified by striking the requirement that Interrogatories 1, 8, 10, 11, 14 and 15 be answered. In all other respects the order is affirmed.
Pierce, P. J., and Regan, J., concurred.