Alley & Company v. Office of Administrative Hearings CA3 ( 2013 )

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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ALLEY & COMPANY, INC., C066477
Plaintiff and Respondent, (Super. Ct. No.
34201080000429CUWMGDS)
v.
OFFICE OF ADMINISTRATIVE HEARINGS,
Respondent;
CONTRACTORS’ STATE LICENSE BOARD,
Real Party in Interest and Appellant.
Real party in interest Contractors’ State Licensing Board (Board) entered into a
settlement agreement and disciplinary order (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
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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,
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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
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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.
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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 costs on appeal.
HULL , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
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