California Real Estate Administrative Hearings
Our firm represents real estate brokers, sales agents, mortgage loan originators, CFL licensees, notaries and other real estate professionals in responding to affidavits and subpoena duces tecum which normally arise when a broker or sales agent is under investigation. This blog, however, tackles the issues of subpoenas from a different angle and discusses what happens if you receive a “statement of issues” or “accusation” and need to serve a subpoena to force a witness to testify at your hearing.
What is a subpoena?
California Government Code section 11450.50(a) provides the legal authority to compel a non-party (generally a California resident) to show up and testify, and/or to produce documents.
The failure to issue a subpoena by the BRE or the DBO is grounds for mandamus review (without having to exhaust any administrative remedies). See Shively v. Stewart, (1966) 65 C2d 475 which discusses subpoena power in administrative hearings:
“Before the hearing has commenced the agency or the assigned hearing officer shall issue subpoenas and subpoenas duces tecum at the request of any party …..the Legislature expressly contemplated the use of the subpoena power to secure the attendance of witnesses and the production of evidence at hearings. Thus, in authorizing the taking of depositions when the witness will be unable to or cannot be compelled to attend, section 11511 provides for depositions, not for the purpose of discovery, but to secure evidence for use at the hearing.”
What is a subpoena duces tecum?
A “declaration” section on the subpoena must be filled out if the requesting party is seeking books, papers, documents and/or other things in the subpoena. A subpoena “duces tecum” is just a fancy way of saying you want the witness to produce certain documents. The declaration must be filled out explaining why the party is being asked for the documents.
How to obtain the subpoena from the California Office of Administrative Hearing (“OAH”)
A party or their real estate counsel can request a BLANK subpoena from the OAH. You can email your requests to SacFilings@dgs.ca.gov. See Cal. Gov’t Code Section 11450.20(a).
How much lead time is needed to serve a subpoena?
You should serve the witness at the earliest possible instance when you know they will be a witness. This will give them time to set their schedule and produce the requested records.
How must the subpoena be served on the witness?
Possible ways to serve the subpoena are by personal service (per CCP 1987 and 1988) or certified mail with return receipt requested. There is also a provision for messenger service per Cal. Gov’t Code Section 11450.20. The service by messenger is effective when the witness acknowldges receipt of the subpoena to the sender by telephone, mail or in person and identifies himself or herself by reference to either date of birth and driver’s license number or DMV identification number. For me, I like to just personally serve and have the server fill out the proof of service and provide me a copy so I can serve opposing counsel.
Do you have to pay the witness mileage fees?
What if the witness is out of state or unable to attend the hearing?
The moving party may seek to file a petition with the OAH to compel a deposition of the party who claims they cannot attend the hearing on the date set forth in the subpoena. This can be a powerful tool to compel the attendance of the witness and/or force a deposition to get the sworn testimony you need to defend yourself in a hearing.
What is the “motion to quash”?
The recipient of a civil subpoena can move to quash it, or move for a protective order (to protect a witness against unreasonable demands, overbroad or unduly burdensome document requests, or to protect against privacy violations). See California Gov’t Code section 11450.30(a). The presiding officer will make the ruling on the motion.
What happens if the witness does not produce the documents or comply with the subpoena?
Failure to appear to testify on the time and date required and/or to produce the requested documents can be punished by “contempt of court.” See Cal. Gov’t Code 11450.20(b) and Cal. Gov’t Code 11450.10(e). The agency or administrative law judge (“ALJ”) can certify facts along with an order to show cause (“OSC”) to the Superior Court and the Superior Court can issue an order compelling enforcement. Failing to follow the Court order can land a potential witness in serious legal trouble. If the agency or ALJ fails to move for a contempt order, the Respondent or their counsel can petition the OAH for the same. See Gilbert v. Superior Court (1987) 193 CA3d 161.
Contact a real estate licensing and defense lawyer
We can help licensees and applicants respond to a real estate accusation or statement of issue from the BRE or the DBO. We are also licensed in Arizona and can handle administrative proceedings in front of the DRE in Maricopa County, Tucson, Flagstaff and other areas. Call us at (877) 276-5084 or fill out the contact form below to have one of our administrative hearing lawyers contact you, normally within the hour.
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