Opinion
A152890
12-21-2018
PAUL J. SOUTHWICK, Plaintiff and Appellant, v. RICHARD R. LAGUENS, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG17863164)
Appellant Paul J. Southwick, representing himself, filed a petition for a writ of administrative mandate under Code of Civil Procedure section 1094.5 alleging a citation issued to him by the Contractors State License Board (Board) was "not issued in accordance or conformity of state law." In his petition, Southwick named as respondents the Board and various individuals, including Richard Laguens, who had filed a complaint with the Board that apparently led to the citation.
In response, Laguens, also representing himself, filed a "motion to dismiss," seeking to dismiss himself from Southwick's petition on the ground Laguens was not the Board or a Board employee and Southwick's petition did not state a claim against him. Treating Laguens's motion as a motion for judgment on the pleadings, the trial court granted the motion without leave to amend. Southwick appeals, and we affirm.
Southwick's notice of appeal indicates he is appealing from the trial court's order granting Laguens's motion. Generally, neither an order sustaining a demurrer nor an order granting a motion for judgment on the pleadings is appealable; rather, the appeal should be taken from the subsequent judgment or order of dismissal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 2:237, p. 2-143, ¶ 2:239, p. 2-146.) Yet, it is generally recognized that "when the trial court has sustained a demurrer to all of the complaint's causes of action, appellate courts may deem the order to incorporate a judgment of dismissal, since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment." (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.) Here, the order appealed from effectively dismissed Laguens from the entire action. We will accordingly deem the order on the motion for judgment on the pleadings to incorporate a judgment of dismissal and review the order. (Cf. Melton v. Boustred (2010) 183 Cal.App.4th 521, 527, fn. 1, 544 [treating an order sustaining a demurrer as a judgment of dismissal and affirming the judgment on appeal].)
BACKGROUND
Southwick is the sole owner of Paul's Door Service. On September 8, 2016, the Board issued Citation No. 2 2016 1423 to Southwick doing business as Paul's Door Service for violation of Business and Professions Code section 7117.5, subdivision (b), "[a]ct[ing] as a contractor while the license was suspended." On March 27, 2017, there was a hearing on the citation before an administrative law judge (ALJ).
We infer that this hearing was an appeal by Southwick of the Board citation, although Southwick has not clearly explained the procedural history of this matter. Nor has he cited an ALJ decision or an order from the Board affirming the citation, and we have been unable to find such documents in the appellate record.
On June 7, 2017, Southwick filed a "Verified Petition for Writ of Mandamus and Sanctions for Bad Faith Actions of Counsel." His petition is difficult to follow, but he "attacked" the Board citation as "unlawfully created, faulty, improperly or improvidently drawn or made, and/or is the product of an 'Underground Regulation' . . . ." (Italics omitted.) In his prayer for relief, Southwick asked the court to "grant this petition for writ of Administrative Mandamus and command the [Board] & the Office of Administrative Hearings to dismiss Richard Laguens['s] complaint in its entirety," among other things. The prayer did not otherwise mention Laguens.
Southwick also alleged, among other things, that Laguens's claim he "was or is unlicensed is unsupported by fact and purposely intended to annoy and vex" him. He continued, "There is no provision of state law to bring a complaint against a contractor for the denial or refusal to provide 1099 information or a Social Security number. [Southwick's] license is NOT suspended because no written accusation was filed or served upon [him] in year 2012. A license is 'Good for all Purposes' until an accusation is filed. [Citation.]" He further alleged, "The [Board] and the Franchise Tax Board (FTB), who is acting through the Board, have mis-applied Section 7145.5 (BPC) to [Southwick]. It is incomprehensible to believe a Sole Owner with no employees could amass an inchoate and unperfected debt of: $207,556.13 while being tied up on a fraudulent Child Support Enforcement scheme and related Family law issues for 24 years in two counties of the State. Both the [Board] and the FTB are beating a dead horse if they think they will ever be able to collect the unverified and una[d]judicated above amount. Their actions in withholding his pocket card and demanding he pay the above sum before it's [sic] issuance amounts to an under color of law governmental extortion scheme coupled with an action for involuntary servitude under the 13th amendment prohibition of the U.S. Constitution and Article 1 Sec. 6 of the California Constitution."
On August 11, 2017, Laguens filed a "motion to dismiss" himself from the action. Laguens pointed out that the purpose of an administrative writ is to seek trial court review of a final decision of an administrative agency, but Laguens "is not an administrative agency."
On August 24, 2017, Southwick filed a document titled "Notice of General Appearance, and Consent to Jurisdiction," in which he alleged Laguens was a proper party and "Real Party in Interest" in the Board administrative action. On September 11, 2017, Southwick filed a "Declaration in Opposition To: Respondent Richard Laguens' Motion to be Dismissed . . .," in which he declared Laguens was "in Privity with" the Board because he filed a complaint with the Board, "thus joining himself as an adjunct to a Governmental enforcement action." Southwick also declared, among other things, "Laguens CANNOT operate independently as he is now subordinate to the [Board] by way of his assigned rights."
The motion to dismiss was set for hearing on October 3, 2017. A tentative ruling was published, the matter was contested, and the trial court heard argument. Southwick told the court that Laguens filed a complaint (with the Board) that "wasn't true." The court explained to Southwick, "[W]hat is pending in front of this Court is not a lawsuit for malicious prosecution. That may be a separate lawsuit out there. What you have filed is a petition for Writ of Mandate." Southwick indicated he understood, responding, "Yes. It's an appeal." The court took the matter under submission.
On October 11, 2017, the court issued an order affirming its tentative ruling and granting the motion without leave to amend. The court explained that it was treating Laguens's motion as a motion for judgment on the pleadings and that it considered only the allegations in the petition. The court described the salient allegations of Southwick's petition: Southwick asserted the Board erred in issuing the citation and sought a writ directing the Board to set aside the citation; Laguens filed a vexatious, retaliatory, bad faith, and baseless complaint against Southwick with the Board; and the Board should investigate Laguens.
The court then reasoned, "The [Board] is the only entity that can set aside its citation, so it is the proper respondent. Laguens is not a proper respondent in the claim for a petition for writ of mandate even if, as alleged, Laguens made an unfounded complaint to the [Board] and then testified falsely in the [Board] hearing. The petition therefore does not state a claim against Laguens."
The court continued, "This order does not prevent Petitioner Southwick may file [sic] a separate complaint against Laguens based on the facts alleged under legal theories such as defamation or malicious prosecution and claiming money damages. The court does not address the merit of those claims, if any. [¶] The [court] notes, by way of dicta, that Civil Code [section] 47(b) states that statements made in an official proceeding are privileged."
On November 8, 2017, Southwick filed a notice of appeal.
DISCUSSION
" 'A fundamental principle of appellate practice is that an appellant " 'must affirmatively show error by an adequate record. . . . Error is never presumed.' " ' " (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 639.) Rather, "[a] judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) "Even where a trial court has erred, we will not reverse the judgment unless the error resulted in a miscarriage of justice—in this context, where appellant shows a more favorable result was reasonably probable absent the error." (Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525, 533-534.) As with error, "prejudice is not presumed and the burden is on the appealing party to demonstrate that prejudice has occurred." (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 614.)
Further, " '[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings . . . where an objection could have been, but was not, presented to the lower court by some appropriate method. [Citations.]' (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 444.)" (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)
" 'When a point is asserted without argument and authority for the proposition, "it is deemed to be without foundation and requires no discussion by the reviewing court" ' " (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2018) 19 Cal.App.5th 789, 796-797.) " 'The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.' [Citations.] It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant's contentions on appeal. [Citation.] If no citation 'is furnished on a particular point, the court may treat it as waived.' " (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Finally, "[p]ro. per. litigants are held to the same standards as attorneys." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Southwick has failed to meet his burden in this appeal. He asserts Laguens's motion should have been subject to a meet and confer requirement, and observes, "This was a procedural mis-step in the court (whoever was presiding) or something the clerk should have caught." It appears that Southwick has forfeited this argument as he does not cite anything in the record showing he raised the issue with the trial court, and we see no reference to the issue in the transcript of oral argument. In any event, even assuming he preserved the issue of a procedural "mis-step," Southwick fails to show prejudice from the asserted error. He fails even to argue that enforcement of the meet and confer requirement would have made a more favorable result reasonably probable.
Furthermore, we note that, as to the meet and confer requirement itself, Laguens stated in his motion to dismiss that he emailed Southwick and asked him to remove him from the court action, but Southwick denied the request. --------
Southwick also claims that, in the tentative ruling, the trial court indicated it would treat Laguens's motion as a demurrer, but in its order issued after oral argument, the court treated the motion as a motion for judgment on the pleadings. Southwick, however, fails to explain how this was error. (Cf. Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 701 [approving the trial court treating a motion in limine as a motion for judgment on the pleadings under the "court's inherent powers to control litigation . . . and formulate rules of procedure as justice may require"].) Moreover, he again fails to show how the claimed error was prejudicial. We can discern no potential prejudice since Southwick understood Laguens' motion would be treated as a "demurrer," and a " 'motion for judgment on the pleadings is the functional equivalent of a general demurrer. . . . Indeed, the only significant difference between the two motions is in their timing.' " (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 259.)
Southwick asserts, without more, that Commissioner Thomas Rasch, who heard oral argument and decided Laguens' motion, lacked a written stipulation from the parties or an order from the court authorizing him to hear the matter. Although he does not cite this statute, Code of Civil Procedure section 259 delineates the powers of court commissioners including the power to act as a "temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant." (Code Civ. Proc., § 259, subd. (d).) But here the record shows Southwick impliedly stipulated to Commissioner Rasch deciding the motion. "The California Constitution provides that parties litigating a cause may stipulate that the matter may be heard and decided by a temporary judge. (Cal. Const., art. VI, § 21.)" (In re Marriage of Djulus (2017) 10 Cal.App.5th 1042, 1044.) "To be valid, the stipulation need not be in writing or be the result of an express oral statement [citation], but it may be implied as a result of the conduct of a party and/or his/her counsel under the 'tantamount stipulation doctrine' [citation]. However, in order for there to be an implied stipulation, there must be evidence in the record to show a party and/or his/her counsel 'were aware that the judicial officer sitting on the bench was a commissioner rather than a judge' [citation] and nonetheless participated in the cause." (Ibid.) Here, there is such evidence in the record. At the beginning of the hearing on Laguens's motion, Southwick addressed Commissioner Rasch, "Good morning, Commissioner," and proceeded to argue his opposition to the tentative ruling. Thus, Southwick was aware that the judicial officer was a commissioner and participated in the action. (And at no point during the hearing did Southwick object to Commissioner Rasch deciding the motion.)
In the argument section of his appellate brief, Southwick asserts, "A complainant who is the initiating force behind a disciplinary proceeding brought by a statewide licensing agency in a prior Quasi-Judicial proceeding lacks standing to independently seek relief from a Superior Court because the Petition for a Writ of Administrative Mandate's scope is statutorily limited." But Southwick offers no authority for the proposition that Laguens as "the initiating force behind a disciplinary proceeding" could be a proper respondent in an administrative writ proceeding in the first place. While he is correct that the scope of a writ of administrative mandate is limited, it is limited to "whether the [administrative agency] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion." (Code Civ. Proc., § 1094.5, subd. (b).) Writ relief, therefore, is only available against the administrative agency that made the challenged decision. As the trial court explained, in this case, only the Board can set aside the challenged citation, so it is the only proper respondent.
Southwick raises other issues, which are difficult to understand and appear to be irrelevant on appeal. For example, Southwick argues the citation was void on its face because it was not signed by the Registrar. He challenges an order from the administrative proceeding quashing his subpoenas. He argues the clerk of the court scheduled different matters for Southwick for the same time. None of these arguments has anything to do with whether the trial court erred in its October 11, 2017 order.
DISPOSITION
Treating the order dated October 11, 2017, granting Laguens's motion as a judgment dismissing Laguens from this action, we affirm. Laguens is awarded costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.