Stanford Law School - Robert Crown Law Library

Filed 12/29/03

IN THE SUPREME COURT OF CALIFORNIA

HARRY BONNELL,
Plaintiff and Respondent,
S105798
v.
Ct.App. 3 C038019
MEDICAL BOARD OF CALIFORNIA,
Sacramento
County
Defendant and Appellant.
Super. Ct. No. 00CS01234

We address in this case the proper interpretation of Government Code
section 11521, subdivision (a) (hereafter section 11521(a))1 concerning the length
of time a state administrative agency can stay its decision in order to review a
petition for reconsideration once the petition has been filed. In this case, the
Medical Board of California issued a 28-day stay to review an already filed
petition. The trial court held that section 11521(a) allows a maximum 10-day stay.
The Court of Appeal reversed. We reverse the judgment of the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The Attorney General, representing the Medical Board of California (the
Board), filed charges of gross negligence, repeated negligent acts, and
incompetence against Dr. Harry Bonnell in connection with two autopsies he

1
All further statutory references are to the Government Code unless
otherwise stated.

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performed while serving as chief deputy medical examiner for San Diego County.
A hearing was held before an administrative law judge (ALJ) who recommended
that the Board’s accusations be dismissed. The Board adopted the ALJ’s decision
on July 12, 2000, ordering that it take effect at 5:00 p.m. on August 11, 2000.
On August 9, 2000, two days before the effective date of the decision, the
Attorney General filed a petition for reconsideration. The next day, the Attorney
General filed a request pursuant to section 11521(a) for a stay of the Board’s
decision in order to give the Board additional time to review the petition. On
August 11, the Board granted a 28-day stay, extending the effective date of the
decision from August 11 to September 8. The order stated the stay was granted
“solely for the purpose of allowing the Board time to review and consider the
Petition for Reconsideration.”
Bonnell thereafter filed a timely petition for writ of administrative mandate
in the superior court. While that petition was pending, the Board on September 6
granted the Attorney General’s petition for reconsideration. The next day, the trial
court issued an alternative writ of mandate, commanding the Board to set aside its
28-day stay or to show cause why it should not be set aside.
Following an evidentiary hearing, the trial court held that section 11521(a)
allowed the Board to grant only a maximum 10-day stay to review an already filed
petition and that the Board’s order for reconsideration was therefore void for lack
of jurisdiction. The Court of Appeal reversed. We granted Bonnell’s petition for
review.
DISCUSSION
Section 11521(a), part of the Administrative Procedure Act (APA)
(§ 11340 et seq.), authorizes a state agency to order a reconsideration of its own
administrative adjudication. Section 11521(a) states: “The agency itself may
order a reconsideration of all or part of the case on its own motion or on petition of
2

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any party. The power to order a reconsideration shall expire 30 days after the
delivery or mailing of a decision to respondent, or on the date set by the agency
itself as the effective date of the decision if that date occurs prior to the expiration
of the 30-day period or at the termination of a stay of not to exceed 30 days which
the agency may grant for the purpose of filing an application for reconsideration.
If additional time is needed to evaluate a petition for reconsideration filed prior to
the expiration of any of the applicable periods, an agency may grant a stay of that
expiration for no more than 10 days, solely for the purpose of considering the
petition. If no action is taken on a petition within the time allowed for ordering
reconsideration, the petition shall be deemed denied.”
Before the enactment of section 11521(a), we recognized that in the
absence of statutory authority, administrative agencies generally lacked the power
to order reconsiderations. (Olive Proration etc. Com. v. Agri. etc. Com. (1941) 17
Cal.2d 204, 209; Heap v. City of Los Angeles (1936) 6 Cal.2d 405, 407-408.)
Section 11521(a) was enacted in 1945 (Stats. 1945, ch. 867, § 1, p. 1634) and
amended in 1953 to add the final segment of the second sentence, which provides
for a stay of “not to exceed 30 days which the agency may grant for the purpose of
filing an application for reconsideration” (Stats. 1953, ch. 964, § 1, p. 2340). In
1987 the statute was amended to include the third sentence, providing for a
maximum 10-day stay “solely for the purpose of considering the petition” (Stats.
1987, ch. 305, § 1, pp. 1369-1370). Section 11521(a) applies to the Board.
(§§ 11500, subd. (a), 11373.)
The trial court concluded the language in section 11521(a) allowed the
Board to grant only a maximum 10-day stay to review an already filed petition.
The Court of Appeal disagreed. Relying on Koehn v. State Board of Equalization
(1958) 166 Cal.App.2d 109 (Koehn), the court held that the second sentence in
section 11521(a), providing a maximum 30-day stay “for the purpose of filing an
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application for reconsideration,” also allowed a 30-day stay to review petitions
that had already been filed.
Koehn, the only case factually analogous to the one before us, was decided
almost 30 years before the 1987 amendment that added to section 11521(a) the
provision for a maximum 10-day stay “solely for the purpose of considering the
petition.” In Koehn, the agency decision at issue was to become effective on
September 21. (Koehn, supra, 166 Cal.App.2d at p. 112.) A petition for
reconsideration was filed on September 10, and a 22-day stay was granted on
September 17. (Ibid.) Koehn argued the 22-day stay was unlawful because the
petition for reconsideration had been filed prior to the issuance of the stay and
therefore could not qualify as “a stay for the purpose of filing an application for
reconsideration [as provided in section 11521(a)], because such an application was
then on file.” (Id. at p. 113.) In rejecting the argument, the Koehn court relied
upon the rule of statutory construction that “ ‘where the language of a statute is . . .
reasonably susceptible of either of two constructions, one which, in its application,
will render it reasonable, fair, and just, . . . and another which, in its application,
would be productive of absurd consequences, the former construction will be
adopted.’ ” (Id. at pp. 114-115.) Limiting the maximum 30-day stay to apply only
where a petition for reconsideration had yet to be filed, the court reasoned, “would
result in the absurd situation, that if one desiring reconsideration would withhold
filing his petition the board could stay for 30 days the effective date of the
decision, but if he filed such petition it could not and would have to determine his
petition before the effective date of the order arrived.” (Id. at p. 114.) Thus, the
“absurdity” consisted in the circumstance that the agency would have less time to
review—and hence would be more likely to deny—the petition of a diligent
petitioner than that of a dilatory one. The court concluded “the [30-day] stay
provided for is not just to allow additional time for the filing of the petition but is
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also to allow additional time to consider it and to order reconsideration if deemed
advisable. This would necessarily apply to a petition already filed as well as to
one that was to be filed. This is the common sense construction of the statute.”
(Ibid.)
The Court of Appeal in the present case determined that the 1987
amendment adding to section 11521(a) the maximum 10-day stay “solely for the
purpose of considering the petition” did not remedy the problem identified in
Koehn, but instead supported the Koehn interpretation. It held that section
11521(a) allows an agency to grant a maximum 30-day stay either to allow a party
to file a petition for reconsideration or to allow an agency to review an already
filed petition, and that the maximum 10-day stay allows an agency an additional
10 days, if necessary, to review an already filed petition.
“We begin our discussion with the oft-repeated rule that when interpreting
a statute we must discover the intent of the Legislature to give effect to its
purpose, being careful to give the statute’s words their plain, commonsense
meaning.” (Kavanaugh v. West Sonoma County Union High School Dist. (2003)
29 Cal.4th 911, 919.) In undertaking this task, we adhere to the guideline that “[i]f
the language of the statute is not ambiguous, the plain meaning controls and resort
to extrinsic sources to determine the Legislature’s intent is unnecessary.” (Ibid.)
When the statutory language is unambiguous, “ ‘we presume the Legislature
meant what it said and the plain meaning of the statute governs.’ ” (Diamond
Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047.)
Statutory language is not considered in isolation. Rather, we “instead interpret the
statute as a whole, so as to make sense of the entire statutory scheme.”
(Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1135.)
5

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A. The Language of Section 11521(a) Is Unambiguous
As previously discussed, section 11521(a) specifies the amount of time an
administrative agency has to order a reconsideration of its own decision and states
that if no action is taken by the agency within the time allowed, the petition is
deemed denied. (§ 11521(a); Gamm v. Board of Medical Quality Assurance
(1982) 129 Cal.App.3d 34, 35-36.) The second sentence of the statute provides
the general rule that “[t]he [agency’s] power to order a reconsideration shall expire
30 days after the delivery or mailing of a decision to respondent . . . .”
(§ 11521(a).) The statute then states two exceptions. An agency may, pursuant to
the second segment of the second sentence, shorten the standard 30-day period in
which to order a reconsideration by making its decision effective on a date “prior
to the expiration of the 30-day period.” (Ibid.) Alternatively, pursuant to the third
segment of the second sentence, an agency can lengthen its period to act by
making its decision effective “at the termination of a stay of not to exceed 30 days
which the agency may grant for the purpose of filing an application for
reconsideration”2 (§ 11521(a)), provided this maximum 30-day stay is granted
within the initial 30-day (or less) period (§ 11519, subd. (a); see Koehn, supra, 166
Cal.App.2d at p. 113). The third sentence of section 11521(a) provides that “[i]f
additional time is needed to evaluate a petition for reconsideration” after “the
expiration of any of the [three] applicable periods,” a maximum 10-day stay may
be granted.

2
“The power to order reconsideration expires (a) 30 days after delivery or
mailing of the decision to the respondent, (b) on an earlier date on which the
decision becomes effective, or (c) on the termination of a stay of no more than 30
days granted for the purpose of filing an application for reconsideration.”
(9 Witkin, Cal. Procedure (4th ed. 1997) Administrative Proceedings, § 101,
p. 1146.)
6

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Turning to the question in this case, we find it evident that once a petition
for reconsideration has been filed, an agency may no longer grant the maximum
30-day stay authorized by the second sentence of section 11521(a); the plain
language of the statute dictates that the maximum 30-day stay is “for the purpose
of filing an application for reconsideration.” (§ 11521(a), italics added.) We agree
with Bonnell that once a petition has been filed, any stay that is granted can only
be “solely for the purpose of considering the petition” (ibid.) and must be limited
to 10 days.
Our construction limiting the Board to a 10-day stay for already filed
petitions does not, of course, mean that an administrative agency will always have
only 10 days to review a filed petition for reconsideration. Like the original 30-
day (or less) period, the maximum 30-day stay period is not solely for the purpose
of filing a petition. If, for example, the petitioner were to file on the fifth day of
the 30-day stay, the agency would have 25 days remaining to evaluate the petition.
If, at the end of this period, the agency believed it needed additional time to
review the petition, it could grant a maximum 10-day stay. The word “solely,”
therefore, which is found in the third sentence restricting the purpose of the 10-day
stay, is presumably omitted from the last segment of the second sentence,
authorizing a 30-day stay, to enable an agency to begin evaluating a petition as
soon as it is filed. This comports with the language in the third sentence, which
indicates that the maximum 10-day stay is not mandatory, but available “[i]f
additional time is needed to evaluate a petition.” (§ 11521(a).) The third sentence
presumes the agency may already have had sufficient time to evaluate the petition.
The Attorney General argues that limiting agencies to a 10-day stay for
consideration of already filed petitions will result in the same absurdity recognized
in Koehn, supra, 166 Cal.App.2d 109, in that “[t]he more diligent party is
penalized while the more dilatory one is rewarded.” (See ante, at pp. 4-5.)
7

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While “[w]e avoid any construction that would produce absurd
consequences” (Flannery v. Prentice (2001) 26 Cal.4th 572, 578), construing the
plain language of section 11521(a) to allow a maximum 10-day stay for review of
already filed petitions results in no absurdity. In amending section 11521(a) to
add the 10-day stay provision, the Legislature resolved the apparent absurdity
identified by the Koehn court. Implicit in the statutory amendment is a legislative
determination that an agency needs, at most, 10 days to review a petition. This is
because, at the extreme, if a party were to file the day before the effective date or
on the last day of a 30-day stay and the agency then granted a 10-day stay, the
agency would have at most 10 days to decide whether to grant the petition.3 If 10
days is in fact insufficient time for agency review, or if dilatory parties are
accorded some advantage, this “absurdity” is best addressed by the Legislature. It
is not our function to “inquir[e] into the ‘wisdom’ of underlying policy choices.”
(People v. Bunn (2002) 27 Cal.4th 1, 17.) “[O]ur task here is confined to statutory
construction.” (Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 446.)
B. Legislative Intent
The Attorney General maintains that even if the 1987 amendment to section
11521(a) undermines the reasoning of Koehn, supra, 166 Cal.App.2d 109, we
should nonetheless adhere to its holding, because the Legislature presumably was
aware of the Koehn interpretation and, by not altering the second sentence of the
statute, acquiesced in it. Applying this rule of construction is unwarranted because
we have determined the language of section 11521(a) is clear and unambiguous.
(Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 323.)

3
Of course, the 10-day stay provision has no bearing on the time allowed to
decide the merits of the claims made in a petition for rehearing. (See §§ 11521,
subd. (b), 11517.)
8

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For the same reason we decline to review the legislative history relating to
the 1953 amendment adding the 30-day stay provision to section 11521(a) and the
1987 amendment adding the maximum 10-day stay. We have consistently stated
that when statutory language is clear and unambiguous, resort to the legislative
history is unwarranted. (People v. Johnson (2002) 28 Cal.4th 240, 247; see also
Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 213.) We adhere to
that position here.
C. Deference to the Board’s Interpretation of Section 11521(a)
The Attorney General argues that the Board has consistently interpreted
section 11521(a) to allow a maximum 30-day stay for evaluating already filed
petitions and contends that the Board’s interpretation is entitled to deference. He
cites to a declaration by David T. Thornton, chief of enforcement for the Board,4
and directs our attention to a page from the Board’s Discipline Coordination Unit
Procedure Manual entitled “Request for MBC Stay.”5 Even were we to assume
these two items from the record are conclusive proof that the Board has
consistently interpreted section 11521(a) as the Attorney General argues, the
purported Board interpretation is not entitled to judicial deference.

4
Thornton’s declaration states: “It is [the Board’s] position that section
11521(a) allows for a 30-day stay . . . for the purpose of both filing and reviewing
a petition for reconsideration. . . . The ten days is added to the initial stay period.”
5
“MBC” stands for Medical Board of California. The page describes a stay
request and explains that stays “are generally requested . . . in order to allow time
to prepare and file a Petition for Reconsideration. The agency can also grant its
own stay to allow time to consider a Petition for Reconsideration . . . . [¶] . . .
[¶] An additional 10 day stay may be granted solely to allow the voting body
sufficient time to vote on the matter.” The Attorney General posits that because
the text describing the 10-day stay appears in a lower, separate paragraph on the
page in the manual, the Board necessarily believed the 30-day stay applied to
already filed petitions.
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We addressed the issue of judicial deference to administrative agency
statutory interpretation in Yamaha Corp. of America v. State Bd. of Equalization
(1998) 19 Cal.4th 1 (Yamaha). In Yamaha, the Court of Appeal had determined a
State Board of Equalization publication represented the dispositive interpretation
of Revenue and Taxation Code section 6008 et seq. (Yamaha, supra, at pp. 5-6.)
In reversing and remanding, we acknowledged that while “agency interpretation of
the meaning and legal effect of a statute is entitled to consideration and respect by
the courts” (id. at p. 7), “agency interpretations are not binding or . . .
authoritative” (id. at p. 8). “Courts must, in short, independently judge the text of
[a] statute . . . .” (Id. at p. 7.) We determined that the weight accorded to an
agency’s interpretation is “fundamentally situational” (id. at p. 12, italics omitted)
and “turns on a legally informed, commonsense assessment of [its] contextual
merit” (id. at p. 14). Yamaha set down a basic framework of factors as guidance
and concluded that the degree of deference accorded should be dependent in large
part upon whether the agency has a “ ‘comparative interpretative advantage over
the courts’ ” and on whether it has arrived at the correct interpretation. (Id. at p.
12.)
Applying these basic principles of judicial review, our deference is
unwarranted here. The Board’s interpretation is incorrect in light of the
unambiguous language of the statute. We do not accord deference to an
interpretation that is “ ‘clearly erroneous.’ ” (People ex rel. Lungren v. Superior
Court (1996) 14 Cal.4th 294, 309; Yamaha, supra, 19 Cal.4th at p. 14.)
Furthermore, section 11521(a) is not a regulation promulgated by the Board, but a
legislative enactment applicable to a wide range of administrative agencies. We
are less inclined to defer to an agency’s interpretation of a statute than to its
interpretation of a self-promulgated regulation. (Yamaha, supra, at p. 12.) Nor
does the Board have any particular expertise in interpreting widely applicable
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administrative adjudication statutes. (Ibid.; see California Advocates for Nursing
Home Reform v. Bontá (2003) 106 Cal.App.4th 498, 505-506 [declining to accord
deference to regulations promulgated by the Dept. of Health Services pursuant to
the APA].) While the Board is generally required to adhere to the provisions of
the APA (Bus. & Prof. Code, § 2230), this responsibility is incidental to its
primary duty to carry out disciplinary actions against members of the medical
profession (id., § 2004).
In sum, we agree with Bonnell that section 11521(a) is unambiguous and
allows a maximum 10-day stay for agency review of an already filed petition for
reconsideration. As a result, the Board’s decision to order a reconsideration is
void for lack of jurisdiction. (American Federation of Labor v. Unemployment
Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1042 [“An administrative agency must
act within the powers conferred upon it by law and may not act in excess of those
powers. . . . Actions exceeding those powers are void”]; Ginns v. Savage (1964)
61 Cal.2d 520, 525 [agency’s power to order reconsideration expires on the date
set as the effective date of the decision].)
DISPOSITION
The judgment of the Court of Appeal is reversed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.
11

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Bonnell v. Medical Board of California
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 96 Cal.App.4th 654
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S105798
Date Filed: December 29, 2003
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: James Timothy Ford

__________________________________________________________________________________

Attorneys for Appellant:

Bill Lockyer, Attorney General, Carlos Ramirez, Assistant Attorney General, Barry D. Ladendorf and
Heidi R. Weisbaum, Deputy Attorneys General, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Law Offices of Richard K. Turner, Richard K. Turner; John J. Sansome, County Counsel (San Diego) and
Thomas D. Bunton, Deputy County Counsel, for Plaintiff and Respondent.

12

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Heidi R. Weisbaum
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2098

Thomas D. Bunton
Deputy County Counsel
1600 Pacific Highway, Room 355
San Diego, CA 92101
(619) 531-6456

13

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Opinion Information

Date:	Docket Number:
Mon, 12/29/2003	S105798

Disposition
Dec 29 2003	Opinion: Reversed

Dockets
Apr 8 2002	Petition for review filed   by counsel for resp. (filed in San Diego) c/a rec req
Apr 16 2002	Received Court of Appeal record   1-doghouse
Apr 26 2002	Request for depublication (petition for review pending)   by counsel for resp
May 6 2002	Filed:   aplt's opposition to resp's depub. request
May 21 2002	Time extended to grant or deny review   to 7-5-02
Jun 12 2002	Petition for Review Granted (civil case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Jun 18 2002	Record requested   (remainder of c/a record)
Jun 20 2002	Received Court of Appeal record   one doghouse(vol 2)
Jun 24 2002	Certification of interested entities or persons filed   by resp
Jun 27 2002	Certification of interested entities or persons filed   by aplt
Jul 12 2002	Opening brief on the merits filed   by counsel for resp
Jul 19 2002	Request for extension of time filed   by aplt to file the answer brief on the merits, 60 days (to 9/10)
Jul 26 2002	Extension of time granted   to 9-10-02 for aplt to file the ans. brief on the merits. No further extensions are contemplated.
Sep 6 2002	Request for extension of time filed   by aplt to file the answer brief on the merits, 21-day ext. requested (to 10-1)
Sep 11 2002	Extension of time granted   To October 10, 2002 to file appellant's answer brief on the merits. No further extensions will be granted.
Oct 10 2002	Answer brief on the merits filed   by aplt
Oct 10 2002	Request for judicial notice filed (in non-AA proceeding)   by aplt
Oct 29 2002	Request for extension of time filed   for resp to file the reply brief on the merits, to 12-16-02.
Oct 31 2002	Extension of time granted   to 12-16-02 for resp to file the reply brief on the merits. No further extensions are contemplated.
Dec 16 2002	Reply brief filed (case fully briefed)   in San Diego by counsel for respondent Harry Bonnell, M.D.
Feb 24 2003	Change of Address filed for:   atty Richard K. Turner
Oct 1 2003	Case ordered on calendar   Tuesday, November 4, 2003 @1PM (Sacramento)
Nov 4 2003	Cause argued and submitted
Dec 10 2003	Order filed   The Attorney General's request for judicial notice, filed 10-10-02, is granted.
Dec 29 2003	Opinion filed: Judgment reversed   Majority opinion by Werdegar, J. ------------joined by George, C.J., Kennard, Baxter, Chin, Brown, Moreno JJ.
Jan 29 2004	Remittitur issued (civil case)

Briefs
Jul 12 2002	Opening brief on the merits filed
Oct 10 2002	Answer brief on the merits filed
Dec 16 2002	Reply brief filed (case fully briefed)

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