Excluding Evidence Outside An Administrative Record
In Fort Mojave Indian Tribe v. Department of Health Services (1995), which was an administrative mandamus action the court noted that subdivision (e) of Code of Civil Procedure section 1094.5 "opens a narrow, discretionary window for additional evidence, newly discovered after the administrative hearing (or improperly excluded at it). . . . Remand under Code of Civil Procedure section 1094.5, subdivision (e) for consideration of postdecision evidence generally has been limited to truly new evidence, of emergent facts.
The leading case (Windigo Mills v. Unemployment Ins. Appeals Bd. (1979) 92 Cal. App. 3d 586, 596-597) endorsing the use of newly created evidence under the statute adverted to mandamus's traditional function of achieving justice, and then concluded that by the enactment of subdivision (e), '. . . it reasonably may be inferred that the Legislature meant to authorize the receipt of evidence of events which took place after the administrative hearing.' Citation." (Fort Mojave, supra, at p. 1595.)
The Fort Mojave court further explained that the reason for narrowly limiting exceptions to the general rule of excluding evidence outside the administrative record is because routine allowance of conflicting scientific opinions created after an administrative decision would pose a threat of repeated rounds of litigation, and uncertain, attenuated finality. (Fort Mojave Indian Tribe v. Department of Health Services, supra, 38 Cal. App. 4th at p. 1595; see also Western States Petroleum Assn. v. Superior Court, supra, 9 Cal. 4th at p. 578.)