Alley & Company v. Office of
Administrative Hearings
Filed 7/23/13 Alley & Company v. Office of
Administrative Hearings 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)
----
ALLEY & COMPANY,
INC.,
Plaintiff and Respondent,
v.
OFFICE OF
ADMINISTRATIVE HEARINGS,
Respondent;
CONTRACTORS’ STATE
LICENSE BOARD,
Real Party in Interest and Appellant.
C066477
(Super. Ct. No. 34201080000429CUWMGDS)
Real party
in interest Contractors’ State Licensing Board (Board) entered into a
(disciplinary order) with plaintiff Alley & Company, Inc., whereby
plaintiff admitted certain allegations in citations issued by the Board and the
Board placed plaintiff on probation for a period of two years. Plaintiff later filed an application to set
aside the disciplinary order, claiming it had been unaware at the time it
agreed to the order that notice of the discipline would remain on the Board’s
website for more than two years.
Respondent Office of Administrative Hearings (OAH) denied plaintiff’s
application to set aside the disciplinary
order.
Plaintiff initiated this mandamus
proceeding seeking an order compelling OAH to grant plaintiff’s
application. The trial court granted the
requested relief, and the Board appeals.
We conclude plaintiff is not entitled to writ relief because its
petition below was untimely. We
therefore reverse.
Facts
and Proceedings
On March 14,
2007, the Board filed an accusation against plaintiff regarding a
2004 construction project. In October
2008, the Board expanded the accusation to include additional projects.
In August 2009, plaintiff and counsel for the Board
agreed to settle the matter by way of the disciplinary order. The order provided that plaintiff’s
contractor’s license would be revoked, but such revocation would be stayed and
plaintiff would be placed on probation for a period of two years. The order further provided that it would not
become effective until signed by the Registrar of the Board (Registrar).
On September 3,
2009, the Registrar issued an order adopting the disciplinary order
and specifying that such order would go into effect on October 14, 2009. In the meantime, plaintiff learned that
Business and Professions Code section 7124.6 requires that notice of any
disciplinary action be maintained on the Board’s website for five to seven
years. Plaintiff sought assurances from
the Board that information on the website would be removed at the end of the
two-year probationary period. After the
Board failed to provide such assurances, plaintiff requested that the
disciplinary order be rescinded. The
Board declined to permit rescission.
On October 2, 2009, 12 days before the disciplinary order
was to go into effect, plaintiff filed an application to set aside the order
due to mistake. On November 12, OAH
denied the application on the ground the Board lost jurisdiction over the
matter once the time for reconsideration of the disciplinary order had
passed.
On January 21, 2010, plaintiff filed the instant petition
for writ of administrative mandate. The
trial court granted the requested relief.
The court concluded plaintiff is entitled to rescission because it had
made a unilateral mistake in agreeing to the disciplinary order, the Board was
aware of the mistake before the disciplinary order was approved by the
Registrar, but the Board failed to take any action to rectify the mistake. The court entered judgment for plaintiff and
issued a peremptory writ of mandate compelling the Board to set aside the disciplinary
order.
The Board appeals.
Discussion
The Board contends plaintiff’s petition for writ of
mandate was untimely and should have been denied on that basis. We agree.
Government Code section 11523 reads: “Judicial review may be had by filing a
petition for writ of mandate in accordance with the provisions of the Code of
Civil Procedure, subject, however, to the statutes relating to the particular
agency. Except as otherwise provided in
this section, the petition shall be filed within 30 days after the last day on
which reconsideration can be ordered.
The right to petition shall not be affected by the failure to seek
reconsideration before the agency. . . . If the petitioner, within 10 days after the
last day on which reconsideration can be ordered, requests the agency to prepare
all or any part of the record, the time within which a petition may be filed
shall be extended until 30 days after its delivery to him or her.
. . .†Government Code section
11523 applies to disciplinary actions of the Board. (Gov. Code, § 11501; Bus. & Prof.
Code, §§ 7091, subd. (f), 7099.5.)
The last day for reconsideration of a Board decision is 30 days after
the order is delivered or mailed, or the order’s effective day, whichever is
earlier. (Gov. Code, § 11521,
subd. (a); further undesignated section references are to the Government
Code.)
The Board argues the order at issue here was the
Registrar’s September 3, 2009, approval of the disciplinary order which,
according to the Board, was served on plaintiff on September 8, 2009. The effective date of that order was October
14, 2009. Under section 11521,
subdivision (a), the last day for reconsideration of the September 3 order was
October 8, 2009. Hence, the Board
argues, plaintiff was required to seek judicial review within 30 days of that
date. And since plaintiff did not file
its petition until January 21, 2010, it was untimely.
Plaintiff does not dispute that section 11523 controls
this matter. It argues instead that
section 11523 is a statute of limitations and, as such, must be pleaded by the
Board as an affirmative defense.
Plaintiff asserts the Board failed to do so.
Plaintiff is mistaken.
The Board’s answer to the petition contains a section for affirmative
defenses. Between the first and third
numbered affirmative defenses is the following statement: “The petition was filed more than thirty days
after the final day for reconsideration of the Board’s decision.†Although this statement is not preceded by
the number 2, its location in the answer makes clear it is intended as the
second affirmative defense. And while
section 11523 is not mentioned, it is clear by the content of the statement
that this is the basis of the defense.
In addition, the Board’s opposition brief, filed before the answer,
asserted plaintiff failed to satisfy the timing requirements of section
11523.
Plaintiff argues its petition was timely because, as
alleged therein, the Board amended the disciplinary order on November 23, 2009,
to change the amount of the bond required to be filed by plaintiff. According to plaintiff, this restarted the
30-day period for reconsideration and, hence, the statutory period for filing a
petition for writ of mandate.
Again, we disagree.
The basis of plaintiff’s petition for writ of mandate is not the
increase in the bond but the alleged mistake as to the Board’s website notice
requirements. The Board’s clerical
correction did not reinitiate the statutory period for seeking court review of
the latter.
Because plaintiff failed to file its petition for
judicial review within the time required by section 11523, its petition is
time-barred and the trial court erred in granting relief.
Disposition
The
judgment is reversed and the matter remanded to the trial court with directions
to enter a new judgment denying writ relief and reinstating the disciplinary
order. The Board shall recover its
HULL ,
J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
