Judge: Mary H. Strobel, Case: 21STCP02866, Date: 2023-04-18 Tentative Ruling

Case Number: 21STCP02866    Hearing Date: April 18, 2023    Dept: 82

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

Procedural History

            On August 31, 2021, Petitioner filed a verified petition for writ of administrative mandate against Respondents.  On September 16, 2021, Respondents filed an answer.

            On February 3, 2022, the court granted the motion of attorney Todd M. Wolfe to be relieved as counsel for Petitioner.  Petitioner has since represented himself.

            After several continuances, the trial setting conference was held on July 5, 2022, and was attended by Petitioner and counsel for Respondents.  The court set the petition for hearing on April 18, 2023, and set a briefing schedule.  Petitioner was ordered to file and serve his opening brief 60 days before the hearing, and his reply 15 days before the hearing.  Petitioner was ordered to lodge the administrative record with the reply.

            On July 11, 2022, Respondent Board served on Petitioner a notice of ruling re: TSC, the writ trial date, and the briefing schedule. 

            Petitioner did not file an opening brief by the deadline set by the court at the TSC.  He also did not file a reply by the deadline or lodge the administrative record at any time.

            On March 17, 2023, Respondent filed and served a notice regarding Petitioner’s failure to file an opening brief.

            On March 23, 2023, Respondent filed and served a notice of change of contact information.  The notice gives contact information for Deputy Attorney General Kevin J. Schettig.

            On April 7, 2023, 11 days before the hearing on the petition and several weeks after Respondent served its notice re: failure to file opening brief, Petitioner filed an opening brief in support of the petition.  Proof of service states that Petitioner served the opening brief on Respondent by overnight courier on April 6, 2023.

            On April 12, 2023, Respondent filed a “Notice Regarding Petitioner’s Failure to Comply with Briefing Schedule.”

Analysis

Petitioner’s Opening Brief Was Untimely Filed and Served

            Petitioner untimely filed and served his opening brief, as discussed above.  Respondents have not filed an opposition addressing the untimely opening brief and have not waived the defect in service.   Accordingly, the court does not consider the merits of Petitioner’s untimely opening brief.

Request for Continuance?

On April 7, 2023, Petitioner also filed a letter addressed to the court.  There is no proof of service for this letter. 

Petitioner suggests in the letter that he may not have timely filed his opening brief because Respondents did not give a notice of substitution of attorney after Deputy Attorney General Schettig started working on the case.  It is not clear that CCP section 285, upon which Petitioner relies, applies when there is no change in the office representing the Respondent (the Office of the Attorney General), but only a change in the attorney within the office handling the case.  In any event, Petitioner has not explained how his uncertainty about whom within the Attorney General’s Office was handling the case prevented him from timely filing his opening brief.  Nor does Petitioner explain why he waited another few weeks to file his opening brief after he received Respondent’s Notice of Failure to File Opening Brief (3/17/23) and Notice of Change of Address or Other Contact Information (3/23/23).   

Petitioner states in his letter that he would not object to a continuance if Respondents need more time to respond to the untimely opening brief.  Petitioner should state at the hearing if he is requesting a continuance, and further explain the reasons for his late filing.  Respondent may respond.

Extra-Record Evidence May Not Be Considered Unless Petitioner Complies with CCP Section 1094.5(e)

            Petitioner has attached to his opening brief several exhibits and declarations.  It is unclear which of these exhibits and declarations, if any, are part of the administrative record for this action. 

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 section 1094.5(e).  If the court continues the hearing, Petitioner should address whether he has the administrative record and how he could amend his opening brief to cite to the administrative record.

Conclusion

            The parties should address the issues outlined above.