Case Number: BS171533 Hearing Date: June 07, 2018 Dept: 85

Sam Walker and Sam Walker, CPA, Inc. v. Department of Consumer Affairs, California Board of Accountancy, BS 171533

Tentative decision on (1) motion to compel: denied; and (2) motion to augment: denied

Petitioners Sam Walker (“Walker”) and Sam Walker CPA, Inc. (“Walker CPA”) (collectively, “Walker”) move to compel the production of investigatory reports and to augment the administrative record.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Walker commenced this proceeding on November 27, 2017. The Petition alleges in pertinent part as follows.

On October 2, 2017, the California Board of Accountancy (“CBA”) issued a decision revoking the certified public accountant (“CPA”) license of Petitioners and imposing a fine of $30,000 on Walker’s right to reside outside California. The CBA’s decision contains numerous errors.

Petitioner alleges that the CBA violated his procedural and substantive due process rights by failing to (1) provide notice of the informal investigation and informal hearing, (2) conduct settlement negotiations in accordance with law, (3) exhaust administrative remedies, (4) provide constitutionally required discovery, (5) provide trial exhibit, witness, and expert witness disclosure, (6) provide due notice of the applicable professional standards set forth in the decision, (7) provide notice of its unlawful definition of negligence, (8) provide due notice of its policy requiring CPAs to adhere to AICPA Statements on Standards for Tax Services and US Treasury Circular 230, (9) respond to Petitioner’s argument that CBA’s disciplinary action was barred by laches/estoppel, (10) respond to Petitioner’s argument that CBA failed to exhaust administrative remedies, and (11) provide Petitioner with notice that an expert opinion was required. Petitioner also alleges that the CBA made speculative findings of fact not supported by the weight of the evidence.

2. Course of Proceedings

On March 2, 2018, the court denied Petitioners’ ex parte application to stay the CBA’s decision.

B. Statement of Facts

On December 13, 2016, the Administrative Law Judge (“ALJ”) Matthew Goldsby heard CBA’s motion to quash subpoenas. Wilson Decl. ¶4. The ALJ issued a decision granting the motion. Id., Ex. A.

In May 2016, Walker filed a petition for writ of prohibition in Los Angeles Superior Court in an attempt to stop the scheduled administrative hearing on the Accusation against him. Wilson Decl. ¶6. Deputy Attorney General Susan Melton Wilson (“Wilson”), lead counsel in this case, filed a demurrer to the petition which was sustained without leave to amend. Id.

On August 24, 2016, Walker filed an appeal challenging the dismissal of the petition. Wilson Decl. ¶7. This appeal was denied and is now final. Id.

C. Motion to Compel

Petitioner Walker moves to compel the CBA to produce certain investigatory reports. Mot. at 2. The motion must be denied for two salient reasons.

First, the motion procedurally defective. Petitioner Walker never identifies in his moving papers what he wants to obtain. His motion consists solely of conclusions without explanation. An example: “The court should allow augmentation of the administrative record of any documents/evidence which were unconstitutionally excluded from the administrative matter.” Mot. At 4. What documents? The moving papers assert that Walker subpoenaed investigatory reports of CBA’s employee Kay Lew and also several third-party contractors who formed a panel at an October 18, 2012 investigatory hearing. Id. Walker asks the court to allow him the opportunity to reissue his subpoenas on third parties which were improperly quashing, including Joseph P. Buniva, Seid Sadat, and Mathew A. King, who were participants in the informal investigation hearing of October 18, 2012. Mot. At 6. What informal hearing? Who are Buniva, Sadat, and King? What documents did Walker want from them? Why does Walker want them? The moving papers provide no specificity about these subjects.

Walker’s moving papers also are unsupported by any evidence. Most law and motion matters must be supported by declaration. See CRC 3.1112(b). In this case, Walker was required to present evidence through declaration about what evidence he seeks, whom he seeks it from, and what efforts he has made to obtain it. No declaration was provided. The motion’s lack of specificity and lack of supporting evidence makes the motion procedurally defective and it must be denied.

Second, Walker’s motion is spurious. As the CBA argues, one of the very issues litigated at the administrative level was his right to the subpoenaed documents.[1] Walker lost. He now seeks administrative mandamus for judicial review of the CBA’s decision, including the ALJ’s decision to quash his subpoenas. Walker may not now add to the administrative record the very documents he was denied from presenting to the CBA. In this administrative mandamus proceeding, the court reviews the CBA’s decision to quash Walker’s subpoenas, not the merits of Walker’s defense based on those documents.

Finally, to the extent Walker seeks discovery from the CBA in this lawsuit, he was required to comply with CCP section 1094.5(e), which allows for limited discovery to obtain evidence that was either improperly excluded at the administrative hearing or could not have been produced at the hearing in the exercise of reasonable diligence. Pomona Valley Hospital Medical Center v. Superior Court, (1997) 55 Cal.App.4th 93, 102. In addition, extra-record evidence is admissible only if it relevant. Western States Petroleum Association v. Superior Court, (“Western States”) (1995) 9 Cal.4th 559, 570.

The ALJ quashed the subpoenas, which means that the documents were never obtained and presented to the OAH or CBA. Thus, Walker cannot show that evidence submitted at the hearing was improperly excluded. Nor is he entitled to fish for information in seeking discovery for administrative mandamus. Pomona Valley, supra, 55 Cal.App.4th at 102.

D. Motion to Augment

Petitioner Walker moves to augment the administrative record with 82 documents. Mot. at 1, Ex. A. Petitioners contends that the record should be augmented to include these documents because they were improperly excluded. Mot. at 9. Petitioners contend their inclusion is necessary because they will help demonstrate that Petitioners’ rights have been violated and that CBA’s decision is not supported by the weight of the evidence. Id.

Again, Petitioner’s moving papers fails to explain what documents he wants to include in the record and why. The court is not required to review Petitioner’s Exhibit A to ascertain what he wants in the record. Nor has Petitioner submitted a supporting declaration. The motion is procedurally defective and must be denied.

Despite the denial, an appropriate administrative record must be prepared, and the court therefore will make some general comments. For the judicial review of a state agency decision made after hearing governed by the Administrative Procedures Act (“APA”), the “complete record of proceedings” shall be prepared. Govt. Code §11523. The complete record consists of “the pleadings, all notices and orders issued by the agency, any proposed decision by an administrative law judge, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence and any other papers in the case.” Id.

Some of the documents which Petitioner seeks to include in the record fall within the parameters of Government Code section 11523 as “other papers in the case.” Emails and correspondence between the parties concerning the Accusation and hearing should be included. All motions and pleadings before the OAH and CBA, including Walker’s demurrer, motion for a change of venue, and other motions, should be included. Walker’s court filings, including his writ of prohibition and appeal, are not part of his administrative proceeding and should not be included. The court will discuss the issue with the parties at hearing and order the CBA to certify a final administrative record. The thumb drive lodged by Walker will be ordered returned to him.

[1] The court ascertained from the opposition and the Petition in pertinent part as follows. Walker served subpoenas duces tecum on two third-party witnesses Kay Lewis and Joseph P. Buniva requesting “any and all records and/or any and all documents related to the Investigative Hearing” on behalf of the Board on October 18, 2012. Ver. Pet. Ex. 2.C. Walker further requested documents “not limited to your notes and/or any notes that you have access to regarding the results of any voting by the hearing panel on the negligence and/or gross negligence and/or decision to proceed with formal discipline of/against” Walker. Id. On November 30, 2016, the Executive Director of the CBA, complainant in the administrative hearing, filed a motion to quash both subpoenas and a motion for protective order. Id. On December 7, 2016 Walker filed a combined objection to CBA’s motion to quash subpoenas and motion to compel production of business records. Id. At the December 13, 2016 administrative hearing, an oral motion was made to quash a subpoena for another party, Seid Sadat. Wilson Ex. A, p.2.

On December 14, 2016, the ALJ Matthew Goldsby (“Goldsby”) granted the Executive Director’s motions. Wilson Decl. Ex. A. The ALJ found that the documents and information sought by the subpoenas are protected from disclosure under the deliberative process privilege. Id