Legal Question in Administrative Law in California

A. The B&P Code is not a "restatement." Restatements are semi-official attempts to condense, purify, and explain the common law (derived from court decisions, or so-called "judge-made" law), as opposed to statutes, which are legislature-made law. The California Codes, including the B&P Code, are all legislature-made, and statutory. In the case of any conflict, statutes prevail over judge-made or common law.

Nevertheless, the various Restatements, such as the Restatement of the Law of Contracts, or the Restatement of the Law of Restitution, or of Torts, etc., can be cited in briefs and pleadings and have some persuasive value in California courts. In that respect, the law as explained in the various restatements is "real."

Statutes of limitations are DEFENSES, and it is up to the defendant to figure out what they are and assert them as defenses at the appropriate point in a lawsuit, criminal prosecution or administrative proceeding. The prosecutor, plaintiff or whatever has no particular duty to determine and assert defenses. Blatant disregard of an obvious defense may sometimes be bad faith or malicious prosecution on the part of a plaintiff or prosecutor, but generally not; it is up to the defendant to defend.

In the particular matter of administrative suspension or revocation of professional licenses such as physician's licenses, there appears to be NO statute of limitations and only a vague prohibition against delay that is so long it is prejudicial to the defendant. A leading case on the matter seems to be Fahmy v. Medical Board of California (1995) 38 Cal.App.4th 810, in which the Court of Appeal found it erroneous for the trial court to apply the three-year statute for wrongful death to a physician's license revocation where his patient died. The court noted that the Legislature had deliberately avoided enacting a statute of limitations in connection with that license-revocation procedure, and deemed that to show an intention to give the power to suspend or revole an indefinite life.