Filed 7/22/15 Breining Institute v. Institute for Credentialing Excellence CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




BREINING INSTITUTE,                                                                          C077059

                   Plaintiff and Appellant,                                        (Super. Ct. No. 34-2013-
                                                                                  80001434-CU-WM-GDS)
         v.

INSTITUTE FOR CREDENTIALING
EXCELLENCE,

                   Defendant and Respondent.




         Breining Institute (Breining) is one of 10 organizations approved by the California
Department of Alcohol and Drug Programs to register and certify alcohol and other drug
abuse counselors in California. (Cal. Code Regs., tit. 9, § 13035(a)(1).) In turn, it must
be accredited by the National Commission for Certifying Agencies (NCCA). (Id.,
§ 13035(c)(2).) NCCA is a standing committee of Institute for Credentialing Excellence
that provides accreditation for a variety of certification programs.




                                                             1
       NCCA initially accredited Breining in 2006; an accreditation is good for five
years. NCCA denied Breining’s application to renew its accreditation in 2012, and then
upheld that denial on administrative appeal. Breining filed a petition for a writ of
administrative mandate (Code Civ. Proc., § 1094.5), seeking an order directing NCCA to
vacate its decision denying Breining’s application for renewal of its accreditation and to
consider the renewal application through a fair process. Breining obtained a stay of the
denial of the accreditation renewal. In April 2013, while the writ petition was pending,
Breining filed a new application for accreditation renewal. After NCCA refused to
consider the 2013 application, Breining filed a supplemental writ petition, seeking an
order directing NCCA to consider it. The trial court denied the petition, as amended and
supplemented to apply to both the 2012 and 2013 applications.
       On appeal, Breining challenges the denial of both its 2012 and 2013 applications
for renewal of accreditation, contending it was denied fair process. As to the 2012
renewal application, Breining contends NCCA failed to apply its policy for correcting
errors in accreditation review because Breining was not given an opportunity to cure the
problems cited in the denial of the renewal application. It adds that the trial court erred in
accepting NCCA’s interpretation that the policy did not apply to renewal applications.
As to the refusal to consider the 2013 renewal application, Breining contends the trial
court overlooked a multitude of errors: (1) failure to follow NCCA’s rules for
application; (2) biased decision-makers; (3) lack of a rational basis for the refusal; (4)
estoppel; (5) retaliation; and (6) prejudice to Breining. Breining also contends NCCA’s
counsel had an improper dual role as advocate and advisor.
       While recognizing Breining’s right to fair process, we are also cognizant of “the
principle that the judiciary should generally accede to any interpretation by an
independent voluntary organization of its own rules which is not unreasonable or
arbitrary. [Citation.]” (California Trial Lawyers Assn. v. Superior Court (1986) 187
Cal.App.3d 575, 580 (California Trial Lawyers). We find that NCCA’s interpretation of

                                              2
the correcting errors policy was reasonable. We further find that NCCA had a rational
reason for declining to consider Breining’s 2013 renewal application while litigation over
the review process applied to the 2012 application was pending, and Breining has failed
to establish bias, estoppel, retaliation, or counsel’s improper dual role. Accordingly, we
shall affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       NCCA Accreditation
       California regulates those providing counseling services in alcohol and other drug
(AOD) programs, as well as those certifying AOD counselors and AOD programs. (Cal.
Code Regs, tit. 9, § 13000.) To certify AOD counselors, an organization must be
accredited by NCCA. (Id., § 13035(b)(2).)
       Institute for Credentialing Excellence provides standards for accreditation of
professional personnel certifications. Its standing committee, NCCA, provides
accreditation for a variety of personnel certification programs that assess professional
competence. NCCA bases accreditation on compliance with 21 standards. The standards
are organized into five sections: (1) purpose, governance, and resources (1-5); (2)
responsibilities to stakeholders (6-9); (3) assessment instruments (10-18); recertification
(19-20); and (5) maintaining accreditation (21).
       The core of a certification program is the test or other assessment instrument
designed to measure competency. Psychometrics is the field of study concerned with
construction and validation of measurement instruments such as tests. NCCA has at least
nine voting commissioners, two of whom are psychometricians.
       NCCA has a Policy and Procedure Manual (the Manual) which sets forth the basic
rules and procedures for accreditation review. Accreditation is for a five-year period.
Renewal of accreditation requires a completely new application; review is conducted de
novo without consideration of the original accreditation. Each application is given to all
NCCA commissioners. Two commissioners perform an in-depth review; one focuses on

                                             3
the administrative standards (1-9, 16-21) and the other on the psychometric standards
(10-15).
       At issue in this case are four NCCA standards: 2, 3, 10, and 11. Standards 2 and 3
relate to governance. Standard 2 requires the certification program to be structured and
governed in a way to ensure autonomy in decision making. Standard 3 requires the
certification board or governing committee have a public member. Standard 10 relates to
the assessment instrument and requires a link between the job/practice analysis and the
assessment instrument. For substance abuse counselors, the job/practice analysis is set
forth in TAP 21. TAP 21 is a technical assistance publication of the U.S. Department of
Health and Human Services on addiction counseling competencies. TAP 21 provides “a
comprehensive list of 123 competencies that substance abuse counselors should master to
do their work effectively.” Standard 11 requires that the assessment instrument be
consistent with generally accepted psychometric principles.
       Breining’s 2006 Accreditation
       Breining is a corporation that provides college and continuing education courses in
substance abuse addiction. In 2006, Breining submitted an amended application to
NCCA for accreditation of its Registered Addiction Specialist (RAS) program. NCCA
requested additional information regarding four different standards relating to both the
governing structure of Breining (2 & 3) and the examination (10 & 11). After Breining
responded, NCCA granted accreditation of Breining’s RAS program for a period of five
years, through July 31, 2011. As required, Breining submitted annual reports to NCCA
for 2006 through 2010. These reports indicated there were no substantive changes to
Breining or the RAS program.
       2010 Application for Renewal of Accreditation
       In 2010, Breining submitted a renewal application, stating, “There have been no
substantive changes to our RAS certification program since we were first accredited by



                                             4
NCCA in 2006.” NCCA deferred a decision on the application, requesting further
information on a number of issues.
      After receiving responses, NCCA considered Breining’s application for renewal of
accreditation of its RAS program and decided to defer it on standards 2, 3, 10, and 11,
pending full legal review. Subsequently, NCCA voted to deny renewal based on
psychometric issues and standards 10 and 11; Breining had not demonstrated a link
between the TAP 21 competencies and the RAS exam. A motion to deny renewal due to
noncompliance with standards 2 and 3, relating to governance and avoiding undue
influence, was defeated.
      NCCA agreed to reconsider the renewal application and Breining provided
additional information about the RAS examination, compiled with the assistance of a
psychometric expert. NCCA determined this additional information was insufficient and
voted unanimously to deny the renewal application. A motion to deny reconsideration
passed unanimously. While an appeal hearing was pending, Breining offered to have
NCCA’s psychometrician speak with Breining’s psychometric expert. Breining provided
additional information to NCCA, but such information was not accepted because due to
the appeal, the record was closed. Eventually, after considerable correspondence, the
parties agreed Breining could submit a new application for renewal of accreditation.1
      2012 Application for Renewal of Accreditation
      In September 2012, Breining submitted to NCCA an updated renewal application.
The NCCA commissioners agreed the psychometric documentation (standards 10 & 11)
was incomplete and requested additional information. After review of additional reports
submitted by Breining, NCCA voted unanimously to deny the application.




1 NCCA claims this opportunity to submit a new application was “unprecedented.” (AA
364, 368, 561)

                                            5
       By letter dated December 5, 2012, NCCA notified Breining that the denial was
based on failure to demonstrate compliance with four standards. Breining failed to
comply with standard 2 because the majority of the RAS Certification Board was
comprised of Breining’s instructors and administrators, creating a conflict of interest.
There was no compliance with the requirement there be an involved public member
under standard 3 because the listed public member had never participated in any activities
of the RAS Certification Board. Breining failed to demonstrate compliance with standard
10 because its job analysis process was based on the judgment of the 14-member panel of
subject matter experts (SME) and most of the SMEs were affiliated with Breining as
faculty or administrators. “Given the lack of independence between the education and
certification roles of many of these committee members, the validity of the job analysis
process, results, and decisions is doubtful. . . . [T]his substantive deficiency impacts
subsequent test development and validation activities, and does not meet the requirements
of Standard 10.” Finally, because many of those involved in developing the examination
were also involved in the education function, standard 11 was violated.
       NCCA unanimously denied Breining’s request for reconsideration.
       Breining’s request for an appeal was granted. The appeal was held before a panel
of three, none of whom were current members of NCCA. At the appeal hearing, NCCA’s
primary psychometric reviewer noted that a lack of linkage between TAP 21 and the
certification exam had been a problem since 2006. He testified that NCCA could not
have raised the conflict of interest problem before because it did not know about it.
Breining had been given deferrals to correct the linkage problem, but NCCA never
received sufficient evidence of linkage. Now the concern was the involvement of
Breining faculty in establishing the job analysis. He noted that TAP 21 has 123
competencies, but 80 percent of Breining’s exam represented only 20 percent of those.
As to the public member requirement of standard 3, the public member had admitted he
had never attended a meeting, and indeed there had been no meetings, contrary to the

                                              6
spirit and letter of standards 2 and 4. NCCA considered the RAS Certification Board
only a shell; it never functioned or acted in the public interest. “This situation makes a
mockery of our standards.” The appeal hearing panel upheld the denial of the Breining’s
application for re-accreditation.
       Petition for Writ of Mandate and Stay
       Breining filed a petition for a writ of mandate. Breining claimed it was denied fair
process both in NCCA’s review of the application and in the subsequent appeal. It
claimed NCCA failed to comply with its own rules, adding that during the appeal
Breining was unable to examine certain records and one member of the appeals panel was
not impartial. Breining sought an order directing NCCA to vacate its decision denying
Breining’s renewal application and to reconsider the application “through a fair process
as set forth by the Court including, but not limited to, proceeding in a manner consistent
with the plain meaning of . . . NCCA’s published standards and procedures.” Breining
also sought a stay of the denial of its accreditation renewal.
       NCCA opposed the stay. It argued there was no irreparable harm to Breining
because it could “reapply for accreditation as soon as the program is prepared to
demonstrate its full compliance with the Standards.” At the hearing on the stay, NCCA
repeated its argument that there was no harm to Breining because it could reapply at any
time. The court asked how long it would take to act on the application if Breining
reapplied tomorrow, and counsel for NCCA replied it could be as little as two months if
the application was sufficient on its face. NCCA also argued Breining was unlikely to
succeed on the merits. The court granted the stay.
       2013 Application and Supplemental Writ Petition
       In April 2013, Breining submitted a new application for renewal of accreditation.
The accompanying cover letter noted the primary change in the application concerned the
composition of the governing board of the RAS Certification program. All but one
individual with any involvement with Breining’s education function had been removed

                                              7
from the board, a new public member was appointed, and there was a commitment to
holding meetings at least once a year.
       NCCA refused to entertain Breining’s new application while the lawsuit
challenging denial of the 2012 application was pending. Further, NCCA’s counsel
advised Breining that this decision was not subject to appeal.
       Breining then filed an amended and supplemental petition for a writ of mandate.
The supplemental portion of the petition addressed the refusal to consider the new 2013
application. Breining sought an order directing NCCA to vacate its 2013 decision and to
consider the 2013 renewal application on the merits through a fair process.
       NCCA’s Motion to Lift Stay
       In response to Breining’s new application for accreditation renewal, NCCA moved
to lift the stay of its denial of the previous application. NCCA argued that the status quo
had been altered by Breining’s filing a new application. It argued the original petition
was now moot, thereby nullifying the basis for the stay.
       The court denied the motion to lift the stay, finding no material change in the
factors upon which the stay was based and that the 2013 application did not moot the
parties’ controversy.
       Ruling on Writ Petition and Judgment
       The trial court ruled in favor of NCCA as to both the 2012 and 2013 applications.
It denied the amended and supplemental writ petition in its entirety. The court granted
Breining’s ex parte application to extend the stay until the time for filing an appeal.
       Breining appealed. We denied Breining’s motion to further extend the stay.2




2 Although Breining has now lost its NCCA accreditation, it contends the appeal is not
moot because a reversal would allow it to pursue compensatory damages for loss of
business and it would give Breining the opportunity to resume certification through a new
renewal hearing.

                                              8
                                      DISCUSSION
                                              I
                               Requirement of Fair Process
       Membership associations, such as medical societies, that serve a quasi-public
function are subject to the common law fair process that requires their decisions be both
substantively rational and procedurally fair. (See 9 Witkin, Summary of California Law
(10th ed. 2005) Corporations, §§ 44-45, pp. 820-822.) The California Supreme Court set
forth the requirements of fair process in Pinsker v. Pacific Coast Society of Orthodontists
(1974) 12 Cal.3d 541, at pages 555 and 556 (Pinsker): “We thus recognize that a basic
ingredient of the ‘fair procedure’ required under the common law is that an individual
who will be adversely affected by a decision be afforded some meaningful opportunity to
be heard in his defense. Every one of the numerous common law precedents in the area
establishes that this element is indispensable to a fair procedure. [Citations.] [¶] The
common law requirement of a fair procedure does not compel formal proceedings with
all the embellishments of a court trial [citation], nor adherence to a single mode of
process. It may be satisfied by any one of a variety of procedures which afford a fair
opportunity for an applicant to present his position. As such, this court should not
attempt to fix a rigid procedure that must invariably be observed. Instead, the
associations themselves should retain the initial and primary responsibility for devising a
method which provides an applicant adequate notice of the ‘charges’ against him and a
reasonable opportunity to respond. In drafting such procedure, and determining, for
example, whether an applicant is to be given an opportunity to respond in writing or by
personal appearance, the organization should consider the nature of the tendered issue
and should fashion its procedure to insure a fair opportunity for an applicant to present
his position. Although the association retains discretion in formalizing such procedures,
the courts remain available to afford relief in the event of the abuse of such discretion.”



                                              9
       Federal courts have applied the federal counterpart to fair process--common law
due process--to the decisions of accrediting agencies. (Thomas M. Cooley Law School v.
American Bar Ass’n (6th Cir. 2006) 459 F.3d 705, 711 (Cooley) [“Many courts, including
this one, recognize that ‘quasi-public’ professional organizations and accrediting agencies
such as the ABA have a common law duty to employ fair procedures when making
decisions affecting their members”].) “Courts developed the right to common law due
process as a check on organizations that exercise significant authority in areas of public
concern such as accreditation and professional licensing. [Citations.]” (Id. at p. 712.)
       “Whether a fair procedure claim is brought pursuant to federal or California law,
the legal analysis a court performs is nearly identical. In assessing a federal fair
procedure claim, courts review ‘only whether the decision of an accrediting agency such
as the ABA is arbitrary and unreasonable or an abuse of discretion and whether the
decision is based on substantial evidence.’ [Quoting Cooley.] Similarly, under
California law, ‘an organization's decision to expel or exclude an individual may be
arbitrary either because the reason underlying the rejection is irrational or because the
organization has proceeded in an unfair manner. . . . [Quoting Pinsker.]” (Whittier
College v. ABA (C.D. Cal., May 7, 2007) 2007 U.S. Dist. LEXIS 43707, at *20.)3
                                              II
                                 Denial of 2012 Application
       Breining contends NCCA failed to provide fair process as to the 2012 application
because it failed to follow it own procedure. Specifically, Breining contends NCCA
failed to follow its policy for correcting errors in accreditation review by failing to give
Breining an opportunity to cure its conflict of interest and public member problems.



3 California Rules of Court do not prohibit citation to unpublished federal cases, which
may be properly cited as persuasive authority. (Landmark Screens, LLC v. Morgan,
Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 251, fn. 6.)

                                              10
       A. Standard of Review
       Our review of NCCA’s decision on the 2012 application, like that of the superior
court, is governed by Code of Civil Procedure section 1094.5. (See Anton v. San Antonio
Community Hosp. (1977) 19 Cal.3d 802, 815-820 [recognizing that administrative
mandamus procedure applies to non-governmental agencies].) We determine “whether
there was a fair trial,” and “whether there was any prejudicial abuse of discretion.”
(Code Civ. Proc., § 1094.5, subd. (b).) “Abuse of discretion is established if the
respondent has not proceeded in the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by the evidence.” (Ibid.) A
failure to proceed in the manner required by law is a prejudicial abuse of discretion and
warrants relief only where “the deviation is material.” (El–Attar v. Hollywood
Presbyterian Medical Center (2013) 56 Cal.4th 976, 991.)
       B. NCCA’s Policy for Correcting Errors
       NCCA’s Manual governs the accreditation review process. One part of that
Manual addresses errors in accreditation review. That provision provides in part: “Due
regard for the public mission and integrity of the NCCA requires that the Commission act
to correct later-discovered errors of material fact or judgment in accreditation decisions.
Except in extraordinary cases, however, corrective action will be taken only after the
affected certification program is given notice and an opportunity to cure the defective
activity, i.e., the program must demonstrate current compliance with the applicable
standard or face adverse consequences such as loss of accreditation or denial of renewal.”
       The policy for correcting errors provides that when a commissioner or staff
member believes an error has occurred, the matter is to be brought promptly to the chair
of the commission. The following procedure is then followed. First, the chair makes a
preliminary assessment as to whether the new evidence would have materially affected
the accreditation decision. If not, the matter concludes. If so, the chair reports the new
evidence to the full commission with recommendations for corrective action. The

                                             11
commission notifies the program and sets a time limit for demonstrating compliance. An
accreditation will not be revoked for an alleged error that is discovered more than three
years after the accreditation decision. The program may appeal any adverse
consequence.
       Another provision in the Manual addresses accreditation renewal and provides:
“The Commission reserves the right to deny renewal of accreditation based upon the non-
compliance with any Standard including non-compliance that was not detected with the
initial application, non-compliance with any new standards, or non-compliance based on
current interpretation of the Standards.”
       C. Analysis
       Breining argues that since its structure and governance was unchanged from 2006
when it first obtained accreditation, the conflict of interest problems later identified by
NCCA were errors in granting the original accreditation. Because these issues were later
discovered, Breining argues, the correcting errors policy was applicable. Thus Breining
was entitled to an opportunity to cure its governance problems before its 2012 application
could be denied.
       NCCA points to the portion of that policy restricting its application to the three
years after an accreditation; it argues that thereafter, as in Breining’s situation, any
problems are properly addressed as part of the renewal process. NCCA emphasizes the
repeated opportunities afforded Breining to cure deficiencies in its test, specifically the
linkage problem, through deferrals, requests for additional information, and the
unprecedented step of permitting Breining to file a new renewal application in 2012 after
its 2010 application was found unsatisfactory.
       These contrary positions bring into focus a key disagreement between the parties:
the exact basis of the 2012 denial. Breining contends NCCA changed its reason for
denying the renewal application from linkage problems with the test to governance
problems; namely, conflict of interest and a nonexistent public member. NCCA argues it

                                              12
did not change reasons, but only added reasons as it discovered the conflict of interest
and public member problems. NCCA’s December 2012 letter of denial, however, as
summarized ante, was limited to the problems arising from the lack of independence
between Breining’s educational and the certification functions. While the letter cited
failure to comply with standards 10 and 11, which relate to the test, the problem was
described as follows: “Given the lack of independence between the education and
certification roles of many of these committee members, the validity of the job analysis
process, results, and decisions is doubtful. . . . [T]his substantive deficiency impacts
subsequent test development and validation activities, and does not meet the requirements
of Standard 10.” Further, standard 11 was violated because many of those involved in
developing the examination were also involved in the education function. Thus, Breining
is correct that the denial was based on governance issues, not deficiencies in the test as to
linkage with TAP 21, as previously identified.4 Accordingly, Breining’s many
opportunities to cure the test linkage problems are irrelevant to the issue before us. It is
undisputed that Breining was not given an opportunity to cure the governance problems
cited in the December 2012 denial letter before NCCA denied the application. The trial
court described the cure as simply “putting different people in certain positions.” The
issue, therefore, is whether a reasonable interpretation of the NCCA Manual, in its
entirety, required that Breining be afforded an opportunity to cure the governance
problems before its 2012 application for renewal of accreditation was denied.




4  At the appeals hearing, NCCA’s psychometric reviewer testified to the unresolved
linkage problems. At the hearing on the stay, an attorney for NCCA argued there were
more reasons for denial than just the conflict of interest and public member issues; there
were grounds that went to the substance of the test. General Counsel for NCCA,
however, stated “it is fair to say that there are two basic grounds for the decision to deny
accreditation.” He identified those grounds as conflict of interest and the public member.

                                             13
       The significance of whether Breining is entitled to an opportunity to cure the areas
of noncompliance or must fix the problems and then submit a new application for
accreditation is the status of its accreditation during the time it takes to fix the problems.
If there is an opportunity to cure before accreditation lapses, Breining can possibly keep
its accreditation in place. In NCCA’s view, Breining’s accreditation should have lapsed
long ago, as Breining continues to be woefully unable to demonstrate compliance with
the NCCA Standards.
       To determine whether Breining should have received an opportunity to cure, we
turn to the language of NCCA’s Manual. In construing the governing documents of
private voluntary organizations, we defer to the organization’s interpretation, but we are
not bound by any unreasonable construction of plain and unambiguous language.
(California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346, 354 (Cal.
Dental).) Courts are reluctant to intervene in private controversies and that reluctance “is
premised on the principle that the judiciary should generally accede to any interpretation
by an independent voluntary organization of its own rules which is not unreasonable or
arbitrary. [Citation.]” (California Trial Lawyers, supra, 187 Cal.App.3d at p. 580.) We
conclude that a reasonable interpretation of NCCA’s Manual does not provide Breining
an opportunity to cure before denial of its 2012 renewal application.
       The correcting errors policy is concerned with errors made by NCCA in its prior
accreditation decisions. “This policy addresses errors discovered after an accreditation
has become final.” It looks backwards to determine if newly discovered evidence “would
have materially affected the outcome of a prior accreditation decision.” The policy is
concerned with whether a prior decision was “predicated upon errors of fact or
judgment.” Revisiting the prior decision can have harsh consequences because the
accredited program has relied on that decision in conducting its business. The harshness
is ameliorated in two ways. First, the possibility of revoking the prior accreditation is
limited to the first three years. Second, there is an opportunity to cure. Where, like here,

                                              14
the institution is not relying on a prior decision of the NCCA, because no renewal
decision has yet been made, the situation is vastly different. The NCCA Manual provides
that a renewal begins anew, with a review of the entire application, and the burden is on
the applicant to show full compliance with NCCA Standards. At renewal, NCCA
“reserves the right to deny renewal of accreditation based upon non-compliance with any
Standard including non-compliance that was not detected with the initial
application . . . .” Further, the Manual indicates that a “mechanism to correct
contemporaneous errors exists in the Commission’s procedures for appeal of adverse
accreditation decisions.”
       Breining argues that the cure provision of the correcting errors policy applies to
renewals because the policy includes “denial of renewal” as a possible adverse
consequence of failure to cure. That provision, however, could simply mean that if the
cure period extends until the time of renewal, such that loss of the prior accreditation is
rendered meaningless, the adverse consequence for failure to demonstrate compliance is
denial of renewal. Denial of renewal can be based on “non-compliance that was not
detected with the initial application.”
       At best for Breining, the language of the Manual is ambiguous, as the trial court
found. In such situations, we defer to NCCA’s reasonable interpretation. As we have
explained, NCCA’s interpretation is not an unreasonable construction, and it certainly
does not misinterpret plain and unambiguous language. (Cal. Dental, supra, 23 Cal.3d at
p. 354.) As our Supreme Court has instructed, we must not unduly interfere with
NCCA’s autonomy by substituting our judgment in an area--accreditation--where our
experience is not equal to that of NCCA. (See ibid.)
       NCCA did not deny Breining fair process in the denial of the 2012 renewal
application by failing to apply the cure provision of the correcting errors policy.




                                             15
                                              III
                                 Denial of 2013 Application
       Breining contends NCCA denied it fair process when it refused to consider
Breining’s 2013 application while litigation over the 2012 application was pending.
Breining specifically contends that: NCCA failed to follow its review procedure; those
who made the refusal decision were biased; the refusal lacked a rational basis; estoppel
precluded the refusal; the refusal was retaliation; and Breining was prejudiced by the
refusal.
       NCCA answers that we need not consider these claims. It asserts that even if we
were to reverse as to failure to consider the 2013 application, the remedy would simply
be NCCA’s review of Breining’s (new) application. NCCA contends that same remedy
is available to Breining upon termination of this litigation, regardless of the result.
       Breining responds that resolving the issues involving the 2013 refusal will have an
impact. First, given the length of time it has gone without accreditation, Breining may
decide to no longer seek NCCA accreditation but instead pursue only damage claims.
The nature of these claims will depend on the grounds for the reversal, especially if we
find retaliation. Second, if we reverse, NCCA’s review of Breining’s application will be
more “constrained” as our opinion may set forth certain parameters of that process.
Third, if we reverse, the subsequent review will occur under the jurisdiction of the
superior court pursuant to a writ of mandate.
       Somewhat ironically, Breining has refuted its own arguments by providing reasons
why NCCA acted reasonably in deferring review until the pending ligation was complete.
The rationale supporting its second and third points applies equally to NCCA’s decision
not to review the 2013 application until the litigation involving the 2012 application is
complete. The resolution of the issues in the litigation over the 2012 application could
affect the review of Breining’s 2013 application, both by constraining that review and by
placing it under jurisdiction of a court. This is especially true since the writ petition

                                              16
raised more alleged defects in the process than the sole issue raised on appeal--the
application of the correcting errors policy. Breining tries to have it both ways on the
importance of judicial guidance for review of the 2013 application. On the one hand, it
demands review of NCCA’s decision to defer review of the 2013 application because it
will provide judicial guidance for further review. But, on the other hand, Breining
dismisses as unreasonable NCCA’s deferring review of the 2013 application until it
obtained guidance from judicial review of the 2012 application before engaging in further
review. With Breining’s untenable inconsistency in mind, we turn to its specific
objections to the decision to refuse to review the 2013 application until the pending
litigation was resolved.
        A. Failure to Follow NCCA’s Own Procedure
        Breining contends NCCA failed to follow its own procedure for reviewing
applications for accreditation when it refused to review Breining’s 2013 application.
Breining, however, does not point to any rule, policy, or procedure in the Manual or
elsewhere that requires NCCA to review an application while a lawsuit is pending over
NCCA’s review process of the applicant’s previous application. Again, we defer to
NCCA’s interpretation of its own procedures as that interpretation is not an unreasonable
construction of plain and unambiguous language. (Cal. Dental, supra, 23 Cal.3d at p.
354.)
        B. Biased Decision-Makers
        Breining contends those who decided not to consider the 2013 application were
biased because they had advocated against Breining with respect to the stay. Breining
contends fair process requires a neutral decision-maker, relying on Applebaum v. Board
of Directors (1980) 104 Cal.App.3d 648, at page 657. In Applebaum, an ad hoc
committee of a hospital recommended suspending plaintiff’s hospital privileges and the
executive committee agreed. (Id. at pp. 652-653.) We found plaintiff was denied fair
process because the ad hoc committee included plaintiff’s accuser and the executive

                                            17
committee had overlapping members with the ad hoc investigative committee. (Id. at pp.
659-660.) We discussed the factors that preclude a fair and impartial tribunal. The most
destructive to impartiality is bias arising from a pecuniary interest, and personal
embroilment in the dispute also voids an administrative decision, but neither prior
knowledge of the facts nor a prehearing expression of opinion on the result is a
disqualifying bias. (Id. at p. 657.)
       The individuals who made the decision not to review Breining’s 2013 application
were Chair Donald Balasa, Vice-Chair Chad Buckendahl, and Executive Director Denise
Roosendaal. Breining contends they were biased because they advocated against
Breining as to the stay. The record indicates they submitted declarations in opposition to
the stay. Balasa described the correcting errors policy; Buckendahl recounted the
considerable time spent on Breining’s application; and Roosendaal provided a history of
NCCA, its Manual, and the two-and-a -half-year process of reviewing Breining’s
application for renewal. In short, they provided factual information which was used by
counsel to argue against the stay. This is not the type of advocating condemned in
Applebaum, where the accuser was part of the decision-making body, nor does it show a
personal embroilment in the dispute. Breining has failed to show a disabling bias.
       C. Lack of a Rational Basis for Decision
       Breining contends NCCA’s decision not to review the 2013 application lacked a
rational basis. As discussed, it was rational, and reasonable, to defer further review of
renewal of Breining’s accreditation until the issues regarding what was required for a fair
process were resolved.
       D. Estoppel
       Breining contends its reasonable and detrimental reliance on NCCA’s
representations at the stay hearing estopped NCCA from refusing to consider the 2013
application. At the hearing on Breining’s request for a stay, NCCA argued there was no



                                             18
irreparable harm to Breining (a necessary element for a stay) because Breining “can
reapply at any time.”
       “ ‘ “Generally speaking, four elements must be present in order to apply the
doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts;
(2) he must intend that his conduct shall be acted upon, or must so act that the party
asserting the estoppel had a right to believe it was so intended; (3) the other party must be
ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” ’
[Citations.]” (Honeywell v. Workers’ Comp. Appeals Bd. (2005) 35 Cal.4th 24, 37.)
       Breining fails to show the necessary inducement for estoppel. NCCA’s statements
about reapplying at any time were made in the context of showing no irreparable harm,
not as an invitation to reapply. NCCA gave no assurance that it would consider a new
application while the litigation was pending. As discussed, it was reasonable to defer
consideration of the 2013 application until the fair process issues in the denial of the 2012
application were resolved.
       E. Retaliation
       Breining contends NCCA’s refusal to consider the 2013 application while the
litigation was pending retaliated against Breining’s exercise of its constitutional right to
petition for redress. Assuming, without deciding, that a retaliation claim is proper in this
context, Breining fails to show retaliation.
       The elements of a retaliation claim in the employment context are: (1) plaintiff
establishes a prima facie case by showing he engaged in a protected activity, the
employer subjected him to an adverse employment action, and there is a causal link
between the protected activity and the adverse action; (2) defendant articulates a
legitimate, nondiscriminatory explanation for its acts; and (3) plaintiff shows the




                                               19
proffered explanation is a pretext.5 (Flait v. North American Watch Corp. (1992) 3
Cal.App.4th 467, 476.)
        Assuming Breining established a prima facie case of retaliation, NCCA offered a
legitimate reason to decline to consider the 2013 application--to preserve its limited
resources and wait until the fair process issues were fully resolved. Breining has failed to
show that reason was a pretext; rather, as we have discussed ante, its own reasoning in
making other arguments appears to support it.
        F. Prejudice to Breining
        Breining contends the trial court misunderstood how NCCA’s refusal to consider
the 2013 application prejudiced it. Since we have found no error in NCCA’s refusal, any
prejudice to Breining is irrelevant. We do note that Breining’s argument assumes its
application for renewal of accreditation should have been granted, a position that the
record shows is far from certain.
                                               IV
                                 Attorney O’Neill’s Dual Role
        Breining contends the denial of its 2013 application was unfair due to the dual role
of NCCA’s counsel, Philip O’Neill. Breining contends O’Neill improperly acted as both
advocate for NCCA during the 2013 appeal and the opposition to Breining’s request for a
stay, and as an advisor to NCCA when it refused to consider the 2013 application.
        “Case law establishes that an attorney cannot act as both an advocate for an
agency and then as an adviser to the decision maker who reviews the result that the
advocate achieved. [Citation.]” (Sabey v. City of Pomona (2013) 215 Cal.App.4th 489,
495.) In Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, at
pages 84 and 85 (Nightlife), the same attorney advised the city that the application for




5   Breining does not offer different elements of a retaliation claim in this context.

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renewal of a permit was insufficient and later advised the hearing officer at the ensuing
administrative appeal. The court held this dual role of advocate and advisor violated
petitioner’s right to due process. (Id. at p. 98.) The court noted that “ ‘the due process
rule of overlapping functions in administrative disciplinary proceedings applies to
prevent the participant from being in the position of reviewing his or her own decision or
adjudging a person whom he or she has either charged or investigated.’ [Citations.]” (Id.
at p. 92.) The result in Nightlife is consistent with the ancient maxim, “A person cannot
be a judge in his or her own cause. [Citations.]” (Woody’s Group, Inc. v. City of
Newport Beach (2015) 233 Cal.App.4th 1012, 1027.)
       O’Neill’s role is markedly distinguishable from that of the attorney in Nightlife.
O’Neill served at all times as counsel for NCCA, both advising that organization and
advocating for it. He did not, as did the attorney in Nightlife, advise the entity that
reviewed the decision for which he advocated. O’Neill advocated for NCCA in the
appeal of the denial of the 2012 application, but he did not then advise the appeals panel
on how to decide the case, or advise the trial court (or this court) on how to decide the
writ petition. The dual role problem found in Nightlife occurs “when both the agency and
the citizen are represented by counsel at a formal hearing before a supposedly neutral
decision maker who has not participated in the initial fact-finding process of the agency’s
investigation and prosecution of a matter, and then, ‘in the midst of this seemingly
adversary system,’ the same lawyer who represented the agency as advocate also advises
the hearing officer with regard to its decision affecting that agency.” (Nightlife, supra,
108 Cal.App.4th at p. 94.) That is not what occurred here.
                                              V
                                      Denial of Appeal
       Breining contends NCCA failed to follow its own Manual as to appeals. NCCA’s
Manual provides: “an applicant for accreditation that is materially aggrieved by a
decision or other action” may appeal that action. Breining sought to appeal NCCA’s

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decision to refuse to consider the 2013 application; the basis of the appeal was “ ‘ “a
failure to conform to published standards, policies or procedures of the NCCA.” ’ ”
NCCA, through counsel, declined to hear the appeal.
       We need not consider whether Breining had a right to appeal because two neutral
tribunals, both the trial court and this court, have reviewed NCCA’s refusal to consider
the 2013 application and neither has found error. Nothing remains for the NCCA appeals
panel to review. Because we cannot provide Breining any effectual relief on this point,
we consider it moot. (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77
Cal.App.4th 880, 888.)
                                     DISPOSITION
       The judgment is affirmed. The Institute for Credentialing Excellence shall recover
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)




                                                        DUARTE                , J.



We concur:



      ROBIE                 , Acting P. J.



      MAURO                 , J.




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