Judge: Curtis A. Kin, Case: 21SATCP02866, Date: 2023-09-26 Tentative Ruling

Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21SATCP02866    Hearing Date: September 26, 2023    Dept: 82

            Petitioner Ray Alvin Renneker, dba California Construction Services, in propria persona, petitions for a writ of administrative mandate directing respondents Contractors State License Board (“CSLB”), Department of Consumer Affairs for the State of California, and David R. Fogt, Registrar of Contracts to set aside a finding of culpability and the imposition of certain monetary penalties in CSLB’s decision revoking petitioner’s contractor’s license, staying the revocation, and placing petitioner on probation for three years.

I.       Factual Background

            Petitioner Ray Alvin Renneker had his contractor’s license suspended based on respondent Contractors State License Board’s finding that he hired Jason Schlessinger, who previously had his licensed revoked, to manage two construction projects – the 12^th Avenue Project and the Acapulco Street Project, in violation of Business and Professions Code § 7121.

On August 16, 1999, respondent Contractors State License Board (“CSLB”) issued a contractor’s license to petitioner Ray Alvin Renneker, owner of California Construction Services (“CCS”). (AR 34-35.) The license is classified as type B (General Building Contractor) and type C-35 (Lathing and Plastering). (Id.)

Petitioner employed Jason Schlessinger, his father-in-law. (AR 1939.) Schlessinger had a contractor’s license in the name of California Stucco. (AR 180-81.) That license was revoked on March 31, 1998, after Schlessinger received 12 consumer complaints. (AR 102, 181-82.)

A.           12^th Avenue Project
           

In June 2017, homeowner S.B.’s property on 12^th Avenue in Inglewood experienced water damage from a leaking pipe in the wall of the only bathroom. (AR 244, 802.) S.B. hired Leland Coontz, a public adjuster, to represent him in his homeowner’s insurance claim. (AR 244.) Because the project involved construction in the only bathroom, S.B. and his family stayed in a hotel during the project. (AR 244-45.) S.B.’s homeowner’s insurance policy allocated a limited amount of funds to cover temporary living expenses. (AR 245.)

Due to inadequate work by a prior contractor for S.B.’s property, Coontz hired CCS to finish the repairs. (AR 245.) Schlessinger was the first person S.B. met from CCS. (AR 1130.) Schlessinger initially represented to S.B. that he was the owner/contractor of CCS. (AR 1129.) Schlessinger later told S.B. that he gave CCS to his son-in-law. (AR 1129.)

On September 9, 2017, S.B. and Schlessinger discussed the remaining repairs. (AR 95.) Schlessinger looked at the bathroom and said he could make the repairs. (AR 1130.) Schlessinger provided an estimate. (AR 1130.) Schlessinger told S.B. that the project would be completed before S.B.’s temporary living expense allowance ran out. (AR 99, 245, 1130-31.)

Schlessinger presented S.B. with a contract to sign. (AR 98, 804.) The price of the project was indicated as “Insurance Proceeds Only.” (AR 245, 278.) The contract was signed on behalf of CCS with a rubber stamp of petitioner Renneker’s signature. (AR 109, 278.) Petitioner did not personally negotiate the contract. (AR 1990 [petitioner testified that he negotiated contract with S.B. through Schlessinger and Coontz].) On September 9, 2017, S.B. paid Schlessinger $5,000 as a retainer to begin the project. (AR 97, 128, 1134.)

Schlessinger obtained permits for the project. (AR 814.) Schlessinger assembled a crew to appear at S.B.’s home and work on the project. (AR 99.) As the project progressed, S.B. noticed that the workers Schlessinger brought to the project changed daily. (AR 245.) S.B. went with Schlessinger twice to Home Depot to pick up materials and pick up workers. (AR 1138.)

S.B. regularly visited the project and tried to record video of the work being done. (AR 96, 99.) S.B. also noticed that the building department issued numerous inspection notices on September 29, 2017. (AR 96, 245.) S.B. alerted Schlessinger to his findings and his concern that the project would not be finished before his temporary living expenses were exhausted. (AR 96, 99.) To continue the project, on October 10, 2017, Schlessinger requested a second payment of $5,000, which S.B. paid. (AR 99, 129, 245.)

Due to the issuance of the additional inspection notices, S.B. asked Schlessinger to accelerate the project so that S.B. would not have to pay temporary living expenses out of pocket. (AR 245-46.) Schlessinger required an additional payment to continue the project. (AR 246.) Based on the lack of progress on the project, S.B. refused to make any additional payments. (AR 246.)

On September 20, 2017, S.B. filed a complaint with CSLB. (AR 106-07, 246.) Soon after S.B. submitted the complaint, the workers removed their tools and abandoned the project. (AR 0246.) Schlessinger demanded the withdrawal of the complaint or else he would not restart the project. (AR 99, 246.)

As admitted by petitioner, S.B. never saw or met petitioner during the project. (AR 246, 1941-42.)

B.           Acapulco Street Project

In March 2017, CCS entered into a contract with homeowner A.G. to replace the stucco on the exterior of his Laguna Beach home located on Acapulco Street. (AR 222.) When A.G. brought cracks in the stucco to the attention of David Silverstein, the project manager, Silverstein referred A.G. to Schlessinger. (AR 216.) Schlessinger told A.G. he was the company manager of CCS. (AR 216, 223.)

On November 10, 2017, A.G. filed a complaint against CCS with CSLB. (AR 223.) CCS sent preliminary lien notices against A.G.’s property to A.G. (AR 223.)

A.G. filed a small claims action against CCS. (AR 223.) The action was resolved at mediation through a stipulated judgment, which Schlessinger negotiated and signed on behalf of CCS. (AR 210, 223.) A.G. was required under the stipulated judgment to withdraw his CSLB complaint against CCS. (AR 210, 223.)

Petitioner admitted to the CSLB investigator that Schlessinger was a manager of CCS. (AR 1269.) Petitioner also testified during the hearing that Schlessinger managed the project administratively. (AR 1972.) According to the investigator, petitioner could not recall key details, including the owner’s name, with respect to the Acapulco Street Project. (AR 216, 1269.)

C.           Disciplinary Proceedings

The administrative hearing took place before Administrative Law Judge (“ALJ”) Joseph D. Montoya on November 9, 10, and 12, 2020, and on January 25, 26, and 28, 2021. (AR 891.) While several claims pertained to defective workmanship on the 12^th Avenue Project and the Acapulco Street Project, the only claim at issue in the instant proceeding before this Court is petitioner’s hiring of Schlessinger in a managerial capacity in violation of Business and Professions Code § 7121. (Pet. ¶ 7.)  

            The ALJ found that CLSB did not prove by clear and convincing evidence that petitioner employed Schlessinger in a managerial or supervisor capacity on the 12^th Avenue Project. (AR 820, 826.) Based on other violations (including requiring excessive down payments and construction below accepted trade standards), the

ALJ ordered the revocation of petitioner’s license, a stay of the revocation, and probation for three years. (AR 826, 829.) The ALJ also ordered petitioner to pay $12,000 in costs. (AR 830.)

            On March 16, 2021, CSLB rejected the decision of the ALJ. (See AR 892.) On July 1, 2021, CSLB issued a new decision, wherein CSLB found that petitioner employed Schlessinger in a managerial or supervisory capacity in violation of section 7121. (AR 919.) CSLB made the following factual findings (with “Respondent” referring to petitioner Ray Alvin Renneker):

41. Schlessinger is Respondent's father-in-law, and works for Respondent. Respondent testified to this fact under direct examination- when asked “[i]s Mr. Schlessinger currently an employee of [CCS]?” Respondent answered “yes, he, is.”

42. S.B. credibly testified that he only dealt with Schlessinger, and that he never dealt with Respondent Renneker. This is buttressed by Renneker's testimony-admitting at the hearing under direct examination to having no contact with S.B. during the 12th Avenue project. In addition, S.B. testified Schlessinger initially represented to him that he was the “owner contractor” of CCS, although Schlessinger later acknowledged he gave the company to his son-in-law. Further, it was Schlessinger who brought the home improvement contract to S.B. for signature, and Schlessinger pulled the permits for the job on behalf of CCS.

43. S.B. further testified that Schlessinger (a) examined the property, (b) provided the estimate for the project, (c) stated CCS could do the repairs, and (d) received two $5,000 payments from S.B. on September 9, 2017 and October 10, 2017, respectively, to commence work on the project.

44. In addition, evidence introduced and admitted at the hearing establishes Schlessinger prepared the Xactimate report for the estimate on the 12th Avenue project. Respondent testified he “was not familiar with Xactimate.”

45. The record indicates that the workmen generally communicated to Respondent through the office secretary, Daisy, or through Schlessinger.

46. Respondent testified that Schlessinger did not provide management for CCS, and was simply an “administrative person.” However, Respondent admitted that Schlessinger would also perform tasks such as scheduling, hiring personnel, assist with oral interviews, and obtain materials for the workers. Respondent also sought Schlessinger's professional opinion because of his vast knowledge, and according to Respondent “knows what he's doing.”

47. Respondent further testified he negotiated the contract for the 12^th avenue project “though Jason [Schlessinger],” and it was Schlessinger who delivered the contract to S.B.

. . .

65. Moreover. Respondent Renneker told CSLB Special Investigator Huy Vo that Schlessinger is "employed as a manager," to act on behalf of CCS.

(AR 906-07, 911, 919, citations omitted.)

            CSLB ordered the revocation of petitioner’s license, a stay of the revocation, and probation for three years. (AR 921.) CSLB also ordered petitioner to pay $14,516 in costs and to post a disciplinary bond in the amount of $15,000 for the period of probation. (AR 922.)

II.      Procedural History

             On August 31, 2021, petitioner filed a Verified Petition for Writ of Mandamus. On September 16, 2021, respondent filed an Answer.

            After the withdrawal of petitioner’s counsel and several continuances of the trial setting conference, on June 20, 2023, petitioner in pro per filed an opening brief. On July 14, 2023, respondent CSLB filed an opposition. On September 11, 2023, petitioner filed a reply. The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

III.     Standard of Review

            Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because petitioner’s contractor’s license concerns a fundamental vested right, the Court exercises its independent judgment on the record. (See Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 789 [citing cases where individual who obtained license to engage in profession or vocation has fundamental vested right].) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

 “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

At the agency level, the clear and convincing standard of proof applies to revoke a contractor’s license. (Bus. & Prof. Code § 7090.) “For almost 45 years, California trial courts have followed the rule laid down by Chamberlain [69 Cal.App.3d 362] that a trial court exercising its independent judgment under…section 1094.5 must determine whether the administrative agency’s findings are supported by the preponderance of the evidence, notwithstanding the clear and convincing evidence standard of proof applied in the underlying administrative proceeding.” (Li v. Superior Court (2021) 69 Cal.App.5th 836, 843; see also Yazdi v. Dental Board of California (2020) 57 Cal.App.5th 25, 33; Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856 [“[T]he weight of the evidence standard…is considered to be synonymous with the preponderance of the evidence standard.”].)

Recently, however, the Court of Appeal for the Third District held that “a trial court reviewing an administrative agency’s findings under the independent judgment standard of review in section 1094.5 must … account for the standard of proof required and applied in the underlying proceeding.” (Li, 69 Cal.App.5th at 844.) Because the California Supreme Court has not addressed this issue, there appears to be a conflict between Li and prior cases, including Ettinger and Yazdi, regarding the standard of review in this writ action. As between the two lines of cases, the Court finds the reasoning in Li to be more persuasive. Accordingly, in the Court’s analysis below, the Court uses the phrase “weight of the evidence” to refer to sufficient evidence to support a finding taking into account the clear and convincing evidence standard of proof applicable at the agency level with respect to the discipline imposed on petitioner’s license.[1]

“[T]he propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency and its decision may not be disturbed unless there has been a manifest abuse of discretion. [Citations.]” (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966; see also Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) If reasonable minds can differ about the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

IV.     Analysis

A.           Matters Before this Court

Petitioner argues that CSLB did not give an opportunity to petitioner to dispute the 12^th Avenue homeowner’s complaint. (AR 4:19-5:2.) Petitioner also appears to argue that the revoked status of Schlessinger’s license exceeds the time purportedly allowed for revocation under Business and Professions Code § 7102. (Reply at 14:3-16.)  In addition, petitioner seems to take exception to the CSLB’s “dispositive legal conclusions” regarding petitioner’s departure from trade standards, inclusion of prohibited language in the settlement agreement, no contract price, and excessive down payment. (OB at 10-13; cf. AR 918-19 [Legal Conclusion paragraphs 11, 14-16])

Notwithstanding newly asserted grounds in the briefing, the instant proceeding is framed by the allegations of the operative petition. (California Standardbred Sires Stakes Com., Inc. v. California Horse Racing Bd. (1991) 231 Cal.App.3d 751, 763 [verified petition under CCP § 1085 is like a complaint in a civil action]; Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211-12 [complaint in a civil action serves to frame and limit the issues].) Petitioner’s petition was based on the allegation that there was no evidence that Schlessinger acted in a managerial or supervisory capacity. (Pet. ¶¶ 11(a), 11(c)(i), 12.) Petitioner did not raise any due process or excessive punishment concerns or disputes regarding CSLB’s legal conclusions set forth in paragraph 11 and 14-16 of its decision. The Court accordingly does not address extraneous issues raised in petitioner’s opening brief and reply.

The Court also notes that petitioner has attached various exhibits to his opening brief—some of which do not bear a Bates stamp indicating they are part of the administrative record. In general, “a hearing on a writ of administrative mandamus is conducted solely on the record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) Extra-record evidence may be admitted only if, in the exercise of reasonable diligence, the relevant evidence could not have been produced or was improperly excluded at the hearing. (CCP § 1094.5(e).) The requirements to submit extra-record evidence are “stringent.” (Pomona Valley Hosp. Med. Ctr. v. Superior Court (1997) 55 Cal.App.4th 93, 102.) “If the moving party fails to make the required showing, it is an abuse of the court's discretion to … [augment the record].” (Ibid.)

Petitioner has not moved to augment the record pursuant to CCP § 1094.5(e). Accordingly, the Court will not consider any evidence that is not part of the certified administrative record in this case.

B.           Business and Professions Code § 7121

Business and Professions Code § 7121 states, in relevant part:

A person…who has had his or her license revoked…or who has been a partner…of any partnership…whose license has been revoked…and while acting as a partner, officer, director, manager, or associate had knowledge of or participated in any of the prohibited acts for which the license was denied, suspended, or revoked, shall be prohibited from serving as an officer, director, associate, partner, manager, qualifying individual, or member of the personnel of record of a licensee, and the employment, election, or association of this type of person by a licensee in any capacity other than as a nonsupervising bona fide employee shall constitute grounds for disciplinary action.

(§ 7121, emphasis added.)[2]

The following facts are undisputed. Petitioner had a contractor’s license. (AR 34-35.)  Schlessinger had his contractor’s license, as partner of California Stucco, revoked. (AR 181-82.) Petitioner employed Schlessinger. (AR 1939.)

            Thus, the only question is whether petitioner employed Schlessinger was “a nonsupervising bona fide employee” or not.  The evidence is clear (and convincing) that Schlessinger played a managerial and supervisorial role in petitioner’s business.  The weight of the evidence demonstrates that Schlessinger acted as a supervisor on both the 12^th Avenue Project and the Acapulco Street Project. With respect to the 12^th Avenue Project, Schlessinger was the first point of contact on behalf of CCS with the homeowner. (AR 1130.) Schlessinger represented that he was the owner/contractor of CCS. (AR 1129.) Schlessinger negotiated the contract with the homeowner, provided an estimate for the work, represented that CCS could repair the homeowner’s bathroom, collected a down payment, and assured the homeowner that the project would be completed before the homeowner exhausted the insurance-allocated temporary living expenses. (AR 99, 245, 1130-31.)

            Schlessinger assembled the workers who worked on the project. (AR 99.) Schlessinger pulled permits for the project. (AR 814.) When the homeowner discovered that the building department had issued inspection notices, the homeowner brought such concerns to Schlessinger. (AR 96.) In response to such concerns, Schlessinger requested additional progress payments from the homeowner. (AR 99, 246.) Schlessinger also stopped the project after the homeowner filed a complaint against CCS with CSLB. (AR 246.)

            With respect to the Acapulco Street Project, Schlessinger represented to the homeowner that he was the company manager of CCS. (AR 216, 223.) During the small claims action against CCS, Schlessinger participated in the mediation on behalf of CCS and requested that the judicial officer include a term in the stipulated judgment that the homeowner withdraw the CSLB complaint against CCS. (AR 223.) Schlessinger signed the stipulated judgment on behalf of CCS. (AR 210.) Petitioner himself admitted to the CSLB investigator and during the administrative hearing that Schlessinger managed CCS. (AR 1269, 1972.) 

            The foregoing evidence demonstrates that Schlessinger supervised the projects by determining their progression, including arranging for workers, determining necessary progress payments, and, in the case of the 12^th Avenue Project, stopping the project. Notably, with respect to the Acapulco Street Project, Schlessinger resolved the small claims action on behalf of CCS and had authority to enter into and bind CCS to a Stipulated Judgment.  Such evidence shows that Schlessinger was more than a “nonsupervising bona fide employee” of CCS. (Bus. & Prof. Code § 7121.)

            Petitioner does not point to any meaningful evidence to the contrary.  Rather, petitioner highlights evidence in the record that indicates petitioner himself was a manager or supervisor. For example, petitioner testified that he approved the contract over the telephone and had his office use the rubber stamp of his signature. (AR 1991-92.) Petitioner also testified that worker Josh Byer sent him photographs of the progress of the work at the 12^th Avenue property and discussed with him changes to the estimate that the homeowner wanted.[3] (AR 1942-45.) However, the fact that petitioner was a manager or supervisor at CCS is not inconsistent with Schlessinger also being a manager or supervisor, and petitioner otherwise fails to persuade this Court how the record does not demonstrate Schlessinger was a supervisory employee.  Indeed, it is hard to ignore that, even if petitioner was a CCS manager or supervisor, as petitioner admitted, the homeowner for the 12^th Avenue Project never dealt with or saw petitioner (AR 246, 1941-42), which is hardly surprising given the evidence of Schlessinger’s role as manager and supervisor on that project. 

            Petitioner also makes much of the fact that the ALJ found the work on the 12^th Avenue Project “was performed by employees who were not closely supervised.” (AR 826.) From this, petitioner jumps to the conclusion that Schlessinger therefore could not have been a supervisor on the project.  (Reply at 11-12.)  It does not logically follow that poor or minimal supervision of the workers means Schlessinger was not a manager or supervisor.  For the reasons discussed above, the evidence in the record demonstrates that he was.  Moreover, courts interpreting the applicable contractor regulations have held that “[p]ersonal presence is not necessary” at the worksite to demonstrate supervision and control.[4] (Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 381, citing G. E. Hetrick & Associates, Inc. v. Summit Construction & Maintenance Co. (1992) 11 Cal.App.4th 318, 329.)  Thus, to the extent Schlessinger failed to closely supervise the workers because he was not often found at the 12^th Avenue project does not undermine the significant countervailing evidence of Schessinger’s role as a manager and supervisor.

            In addition to challenging the evidentiary basis for the Board’s decision,[5] petitioner challenges the process employed by the Board, arguing that CSLB was not empowered to discipline petitioner because the Board’s members were not present during the hearing before the ALJ and thus were ineligible to vote on any discipline. (OB at 4.) However, Government Code § 11517(c)(2)(E) clearly and unambiguously permits the CSLB to reject the decision of the ALJ, stating: “Within 100 days of receipt by the agency of the administrative law judge’s proposed decision, . . . [t]he agency may do any of the following: . . . Reject the proposed decision, and decide the case upon the record.”  (Govt. Code. § 11517(c)(2)(E); see also Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 190 [“There is no merit in petitioner’s claim that the administrative procedure prescribed by section 11517(c) of the Government Code is unconstitutional because it authorizes respondent board to decide the case for itself if the proposed decision by the administrative judge is not adopted. [¶] The requirements of due process of law are fully met where, as here, the licensee was accorded judicial review of the administrative decision in which the court weighed the evidence and rendered its independent judgment on the merits”].)  That is precisely what happened here, pursuant to CSLB’s explicit statutory authority to do so.

            For the foregoing reasons, with respect to section 7121, petitioner fails to meet his burden to demonstrate that the “the administrative findings are contrary to the weight of the evidence.”  (Fukuda, 20 Cal.4th at 817.)

C.           Increase in Cost Recovery Order

Petitioner also seeks a review of CSLB’s increase in costs from $12,000 to $14,516. (Pet. ¶ 7; Prayer ¶ 1; cf. AR 828, 920 [difference in costs awarded by ALJ and CSLB].) Section 125.3 allows the ALJ to “direct a licensee found to have committed a violation or violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case.” (§ 125.3(a).) However, the version of section 125.3 effective at the time of the CSLB decision stated: “The finding of the administrative law judge with regard to costs shall not be reviewable by the board to increase the cost award.” (§ 125.3(d), effective January 1, 2020 to December 31, 2021; AR 922 [CSLB decision effective 8/2/21].)

Respondent CSLB cites Government Code § 11517 and Zuckerman v. State Board of Chiropractic Examiners (2002) 29 Cal.4th 32 for the proposition that it is authorized to increase costs to reflect the additional disciplinary finding that petitioner violated section 7121. (Opp. at 12.)

While Government Code § 11517 allows CSLB to reject the ALJ’s decision, the statute does not directly address CSLB’s ability to alter the ALJ’s cost award, unlike section 125.3, which makes clear and explicit the Board cannot increase the ALJ’s cost award. “It is a general rule of statutory interpretation that, in the event of statutory conflict, a specific provision will control over a general provision.” (Arbuckle-College City Fire Protection Dist. v. County of Colusa (2003) 105 Cal.App.4th 1155, 1166.)

As for Zuckerman, that case pertains to 16 C.C.R. § 317.5, concerning the Board of Chiropractic Examiners, which is silent as whether the Board can increase an ALJ’s cost award. (Zuckerman, 29 Cal.4th at 36.)  16 C.C.R. § 317.5(c) explicitly allows the board to “reduce or eliminate the cost award, or remand to the administrative law judge where the proposed the decision fails to make a finding on costs,” but it has no provision that expressly permits an increase to the ALJ’s award of costs.  (16 C.C.R. § 317.5(c).)

Accordingly, in light of section 125.3’s express prohibition against increasing a cost award and respondent’s failure to provide any direct authority to the contrary, the Court will direct CSLB to amend its adjudicatory decision so that the cost award is $12,000 as awarded originally by the ALJ.

D.           Disciplinary Bond

The ALJ did not impose a disciplinary bond for petitioner to continue to use his contractor’s license. (Cf. AR 829-30 [ALJ order]; AR 922 [CSLB order imposing bond].) However, the version of section 7071.8 effective at the time of its decision allowed CSLB to require a bond as a condition precedent “to the continued valid use of a license which has been suspended or revoked, but which suspension or revocation has been stayed.” (§ 7071.8, effective January 1, 2011 to December 31, 2021.)

Petitioner presents no argument as to why the bond ordered by CSLB constitutes a prejudicial abuse of discretion under CCP § 1094.5. Moreover, although petitioner highlighted the difference between the ALJ’s proposed decision and the CSLB decision with respect to the bond, petitioner did not pray for any change to the bond. (See Pet. ¶ 7; Prayer ¶ 1.) Accordingly, the Court does not order any change to the bond.

V.      Conclusion

            The petition for writ of mandate is GRANTED IN PART.  The Court will direct respondent Contractors State License Board to amend its order so that the cost award will be $12,000 as the Administrative Law Judge ordered. The petition is otherwise DENIED.

Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate.