Judge: Stephen I. Goorvitch, Case: 24STCP00255, Date: 2024-08-09 Tentative Ruling

Case Number: 24STCP00255    Hearing Date: August 9, 2024    Dept: 82

Daniel Rinsch v. Bureau of Real Estate Appraisers

Case No. 24STCP00255

[Tentative] Order Sustaining Demurrer to Petition for Writ of Mandate

INTRODUCTION

            Petitioner Daniel Rinsch (“Petitioner”), a self-represented party, filed this petition for writ of administrative mandate under Code of Civil Procedure section 1094.5 against the Board of Real Estate Appraisers (“Respondent” or the “Board”).  Petitioner challenges the Board’s decision to place him on probation for two years.  Now, Respondent demurs, arguing that the petition is barred by the applicable statute of limitations.  The court sustains the demurrer with leave to amend.   

BACKGROUND

             Petitioner “was a licensed Certified Residential Appraiser with the Bureau of Real Estate Appraisers, License #AR029246 beginning on 3/11/2005.”  (Petition for Writ of Mandate (“Pet.”) ¶ 1.)  Petitioner “was a full-time appraiser during this period and had never had a complaint filed against him with the Department of Consumer Affairs or the Bureau of Real Estate Appraisers, prior to the complaint filed by Servicelink, a nationwide [Appraisal Management Company].”  (Id. ¶ 2.)  “The complaint filed by Servicelink dated May 8, 2020, represents the first complaint filed with the Bureau of Real Estate Appraisers against Daniel Rinsch, and is authored by an attorney for Servicelink LLC.”  (Id. ¶ 3.)

In an order dated October 11, 2023, Respondent adopted a proposed decision of an administrative law judge to revoke Petitioner’s license but stayed the revocation and placed Petitioner on probation for two years (the “decision”).  (RJN Exh. A.)   The decision was mailed to Petitioner on October 11, 2023.  (Ibid.)  The decision states an effective date of November 13, 2023.  (Ibid.) 

Respondent received a petition for reconsideration from Petitioner on November 9, 2023.  In an ordered dated November 14, 2023, Respondent stated: “The decision and order having become effective, the Bureau lacks jurisdiction over the petition for reconsideration. Accordingly, respondent’s petition for reconsideration is deemed denied by operation of law for want of jurisdiction.”  (RJN Exh. B.)

On January 24, 2024, Petitioner filed this petition for writ of mandate.  In the petition, which is verified, Petitioner alleges that he retained attorney Peter Christensen as his defense attorney against the administrative complaint; that the Engagement Letter included James Martin as an expert witness; and that James Martin was the Bureau Chief for the Bureau of Real Estate Appraisers unit July 2020, during the period of time that Servicelink filed its complaint.  (Pet. ¶¶ 4-5.)  Petitioner further alleges that “Christensen’s collaboration with Jim Martin, after Mr. Martin’s relevant leadership of the Bureau and reported participation in the investigations of [Petitioner’s] work, clearly tainted the defense of [Petitioner] and violated his due process rights.”  (Id. ¶ 9.) 

LEGAL STANDARD

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc. § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.”  (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.)  The allegations in the petition must be liberally construed in favor of Petitioner on demurrer.  (See Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.)  “A demurrer must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.  It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881, citations and internal quotations omitted.) 

DISCUSSION

            The petition, as pleaded, is barred by the statute of limitations.  Under Government Code section 11523, a petition for writ of administrative mandate challenging Respondent’s final administrative decision “shall be filed within 30 days after the last day on which reconsideration can be ordered.”  (See also 10 Cal. Code Regs. § 3721(b) and (c).)  “The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period.”  (Gov. Code § 11521(a).)  Service by mail does not extend the 30-day time limit. (Compton v. Board of Trustees (1975) 49 Cal.App.3d 150, 154 fn. 3 [“The fact that the decision was mailed, rather than delivered, did not extend the 30 day time limit of section 11521”].)  Nor is it extended when a licensee files a petition for reconsideration of the decision.  (Anderson v. Dept. of Alcoholic Beverage Control (1958) 159 Cal.App.2d 413, 415.) 

Here, Respondent mailed the Decision on October 11, 2023.  The 30-day time period expired on Friday, November 10, 2023.  Because this was observed as Veterans Day, Respondent’s authority to reconsider its decision expired on the next business day, which was Monday, November 13, 2023, which was also the effective date of the decision.  (See Civ. Code, §§ 7, 11; RJN Exh. A.)  Respondent did not grant a stay of the expiration under Government Code section 11521.  (RJN Exh. B.)

Accordingly, the statute of limitations expired 30 days after November 13, 2023, which was Friday, December 13, 2024.  This petition was filed after that deadline, on January 24, 2024.  Based upon the information contained in the petition and the exhibits subject to judicial notice, the petition appears to be untimely. 

  In opposition, Petitioner argues that his deadline to file the petition was extended pursuant to Government Code section 11523 because he requested the administrative record from Respondent and because the record provided was not “complete.”  (Oppo. 2; see Gov. Code § 11523.)  Petitioner also argues that the limitations period should be extended pursuant to the doctrine of equitable tolling.  (Oppo. 2-8.)  These arguments rely on extrinsic materials that are not subject to judicial notice, which the court cannot consider in ruling on a demurrer.  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.”  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  In other words, Petitioner must allege the relevant facts to support his arguments in the petition and/or attach the relevant documents as exhibits to his petition in order for the court to consider them. 

Based upon the foregoing, the court orders as follows:

1.         The court sustains Respondent’s demurrer.

2.         The court grants leave to amend.  Petitioner shall file a first amended petition within thirty (30) days.  The court provides notice that if Petitioner fails to do so, absent good cause, this case will be dismissed with prejudice.

3.         The court continues the trial setting conference to October 11, 2024, at 9:30 a.m.

4.         Respondent’s counsel shall provide notice and file proof of service with the court.