Judge Linda S. Marks, Case 2021-01204618 2022-10-03 Tentative Ruling

Judge: Linda S. Marks, Case: 2021-01204618, Date: 2022-10-03 Tentative Ruling

Petition for Writ filed by Sharon Jory on 9/17/21

Initially, the Court notes that there is no notice of motion or application indicating what Petitioner seeks by way of the Amended Memorandum of Points and Authorities.

A petitioner who seeks to obtain an alternative writ of mandate begins by serving on the respondent and real parties in interest, if any, by mail, fax or email, and then filing with the court the following documents: the verified petition which includes a prayer for issuance of both alternative and peremptory writs, an application for an alternative writ, a memorandum in support of the application, declaration of counsel re ex parte notice, and a proposed alternative writ with blanks for the date and time of the OSC hearing. (Asimow, et al. (The Rutter Group November 2021 update) Cal. Prac. Guide: Administrative Law, at ¶ 18:110.) Normally, the memorandum filed with the application for alternative writ will be the memorandum on the merits, presenting the grounds for issuance of both the alternative writ and the peremptory writ. (Asimow, et al. (The Rutter Group November 2021 update) Cal. Prac. Guide: Administrative Law, at ¶ 18:265.) While the focus should be on the ultimate merits, reference should be made to the authority of Code of Civil Procedure sections 1087 and 1107 to issue the alternative writ. (Ibid.)

It does not appear that the Amended Memorandum of Points and Authorities seeks an alternative writ. There is an introductory note to the Amended Memorandum of Points and Authorities which states that Petitioner “respectfully submits the following Amended Memorandum of Points and Authorities in Support of her Amended Petition for Writ of Mandamus (“the Petition”) commanding Respondents JOHN JORY CORPORATION (“the Corporation”) and KENNETH A. JOHNSON (“Respondent Johnson”), to make available for inspection and copying the corporate records described in detail in the accompanying verified Amended Petition.” (Amended Memorandum of Points and Authorities, 2:1-6.) Additionally, the Amended Memorandum of Points and Authorities cites to Code of Civil Procedure sections 1085(a) and 1086, and requests that “the Court grant [Petitioner’s] Petition and issue the peremptory writ of mandate . . . .” (Amended Memorandum of Points and Authorities, 3:19-21.) Petitioner does not cite to authority, i.e., Code of Civil Procedure sections 1087 and 1107, to support the issuance of an alternative writ or otherwise requests the issuance of an alternative writ in the Amended Memorandum of Points and Authorities. Such failure by Petitioner to do so is construed as Petitioner seeking a peremptory writ of mandate in the first instance and foregoing the alternative writ.

Petitioner may forego the alternative writ procedure and initiate the writ proceeding in a manner analogous to traditional non-writ civil litigation wherein petitioner files a petition for peremptory writ and serves it and a summons on the respondent and any real parties, and brings the case to resolution on the merits with a noticed motion for a peremptory writ. (Asimow, et al. (The Rutter Group November 2021 update) Cal. Prac. Guide: Administrative Law, at ¶ 18:130.) The papers to be prepared for trial of the writ petition consist, at a minimum, of a notice of motion and motion, and supporting memorandum from petitioner; opposing memorandum from respondent, and a reply memorandum from petitioner, with motion papers being drafted in accordance with the form and format requirements prescribed by CRC, rule 3.1110 et seq. (Asimow, et al. (The Rutter Group November 2021 update) Cal. Prac. Guide: Administrative Law, at ¶¶ 20:240, 20:241.) Petitioners proceeding by noticed motion must file and serve a notice of motion, motion, and supporting memorandum. (Asimow, et al. (The Rutter Group November 2021 update) Cal. Prac. Guide: Administrative Law, at ¶ 20:245, citing CRC, rule 3.1110, 3.1112, 3.1113.)

Here, Petitioner filed the Verified Amended Petition, and an “Amended Memorandum of Points and Authorities in Support of Petitioner’s Amended Petition for Writ of Mandamus to Compel Corporation to Permit Inspection of Corporate Records” both on 9/17/21. (ROA 17, 29.) However, there is no notice of motion and motion as required for a petitioner proceeding by way of noticed motion procedure to seek a peremptory writ without first obtaining an alternative writ. Nevertheless, notice of the continued petition for writ of mandate was given by the Court. Assuming that notice was properly given, Petitioner must properly serve the Verified Amended Petition.

Where only a peremptory writ of mandate is sought, “petitioner files a petition for peremptory writ and serves it and a summons on the respondent and any real parties (see ¶ 18:160 ff. for discussion of real parties in interest). Petitioner then brings the case to resolution on the merits with a noticed motion for a peremptory writ (see ¶ 20:230 ff.).” (Asimow, et al. (The Rutter Group November 2021 update) Cal. Prac. Guide: Administrative Law, at ¶ 18:130.) “If petitioner follows the noticed motion procedure to seek a peremptory writ without first obtaining an alternative writ, the petition must be personally served on respondent and real parties in interest in the manner required for service of a summons and complaint, i.e., pursuant to CCP § 415.10 et seq.” (Id. at ¶ 18:280.) Proof of service of the petition must be lodged with the court before the hearing or any action by the court. (Id. at ¶ 18:282.)

“In a trial court, if no alternative writ is sought, proof of service of a copy of the petition need not accompany the application for a writ at the time of filing, but proof of service of a copy of the filed petition must be lodged with the court prior to a hearing or any action by the court.” (CCP § 1088.5.)

Code of Civil Procedure section 1107 states, in relevant part:

When an application is filed for the issuance of any prerogative writ, the application shall be accompanied by proof of service of a copy thereof upon the respondent and the real party in interest named in such application. The provisions of Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 shall apply to the service of the application. However, when a writ of mandate is sought pursuant to the provisions of Section 1088.5, the action may be filed and served in the same manner as an ordinary action under Part 2 (commencing with Section 307). Where the real party in respondent's interest is a board or commission, the service shall be made upon the presiding officer, or upon the secretary, or upon a majority of the members, of the board or commission. Within five days after service and filing of the application, the real party in interest or the respondent or both may serve upon the applicant and file with the court points and authorities in opposition to the granting of the writ.

(Code Civ. Proc., § 1107)

“The writ must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the Court. Service upon a majority of the members of any Board or body, is service upon the Board or body, whether at the time of the service the Board or body was in session or not.” (Code Civ. Proc. § 1096.)

“Section 1010 et seq. governs service of motions, and expressly permits simple service by mail as an alternative to personal service. (Code Civ. Proc., § 1012.) Thus, such service would presumably be sufficient if an alternative writ were sought.” (Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 839.) However, “specific service procedures are necessary to establish jurisdiction in a mandate proceeding where an alternative writ is not sought.” (Id. at p. 840.) “ . . . Code of Civil Procedure, section 1096, . . . provides that a writ, including an alternative writ, must be served in the same manner as a summons in a civil action. Thus, although notice-service of the application is sufficient under Code of Civil Procedure section 1107 to obtain the alternative writ, personal service of an alternative writ is necessary before a trial or hearing can be had . . . . the apparently optional use of the Code of Civil Procedure service of process procedures authorized by section 1107 for mandate proceedings where no alternative writ is sought, is in fact mandatory. At one stage or another, personal service of either the alternative writ or the petition must be made.” (Ibid.)

Service of process is necessary for jurisdictional purposes. (Id. at p. 841.)

The manner in which summons must be served in a civil action include (1) personal delivery to defendant (Code Civ. Proc. § 415.10); (2) substitute service by delivery to someone else at defendant’s usual residence or place of business coupled with mailing (Code Civ. Proc. § 415.20); (3) service by mail coupled with acknowledgement of receipt (Code Civ. Proc. § 415.30); and (4) service by publication (Code Civ. Proc. § 415.50). (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group June 2022 update) ¶¶ 4:180-4:181, 4:184, 4:193, 4:225, 4:245.)

Here, on 6/3/21, Petitioner, Sharon Jory, trustee of the Jory Trust filed a Verified Petition for Writ of Mandamus to Compel Corporation to Permit Inspection of Corporate Records (“Verified Petition’) against Respondents, John Jory Corporation and Kenneth Johnson, individually and as trustee of the Johnson Trust. (ROA 2.) A Memorandum of Points and Authorities in Support of the Verified Petition was concurrently filed on 6/3/21. (ROA 3.) There appears to be no proof of service attached to either document, or separately lodged or filed with the Court, such that it does not appear to have been served.

Subsequently, on 9/17/21, Petitioner filed the instant Verified Amended Petition against Respondents. (ROA 29.) An Amended Memorandum of Points and Authorities in Support of Petitioner’s Verified Amended Petition was concurrently filed on 9/17/21. (See ROA 17.) A proof of service was attached to each of these documents indicating service by mail on Agent Kenneth A. Johnson. (See ROA 17, 29.)

“If the defendant has not appeared in the action, and a writ, notice, order, or other paper is required to be personally served on the defendant under this title, service shall be made in the same manner as a summons is served under Chapter 4 (commencing with Section 413.10) of Title 5.”(Code Civ. Proc. § 512.030(b).)

Here, the proofs of service for the Verified Amended Petition do not indicate personal service of the Verified Amended Petition on Respondents. At the time of the filing of the Verified Amended Petition and Memorandum of Points and Authorities on 9/17/21, Respondent had not appeared in the action. A demurrer and motion to strike were subsequently filed on 10/12/21.

As set forth above, there are four methods as to the manner in which a summons is to be served and mail service, in itself, is not a manner in which the Verified Amended Petition may be served. As a result, while Petitioner attached a proof of service of a copy of the Verified Amended Petition, it indicates that the Verified Amended Petition has not been properly served. Tentative Ruling: Petitioner, Sharon Jory, Trustee of the Jory Family Trust dated April 13, 1999’s Petition for Writ of Mandate is DENIED, without prejudice.