Opinion
C039727.
7-24-2003
RICHARD E. WILMSHURST, Plaintiff and Appellant, v. CENTRAL VALLEY REGIONAL WATER QUALITY CONTROL BOARD et al., Defendants and Respondents.
Richard Wilmshurst (plaintiff) appeals after the trial court dismissed his petition for a writ of administrative mandate and denied his motion for reconsideration of the dismissal. The courts ruling was premised on plaintiffs failure to file the proof of service required by Code of Civil Procedure section 1107 (Section 1107). We reverse because plaintiff filed an adequate proof of service.
Section 1107 provides: "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 respondents 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.
FACTS AND PROCEEDINGS
Plaintiff filed a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) and damages (id., § 1095) on September 21, 2001. The named respondents were the Central Valley Regional Water Quality Control Board and the State Water Resources Control Board.
Less than a week later the court, on its own motion, filed an order dismissing the petition because plaintiff "failed to file proof of service of the petition upon the respondents pursuant to California Rules of Court, rule 56(b) and California Code of Civil Procedure § 1107."
Plaintiff timely moved to reconsider the dismissal. In his declaration in support of the motion, plaintiff declared that he had contacted respondents attorney, Karin Shine, prior to filing his petition. Shine told plaintiff that Richard Thalhammer of the Attorney Generals Office would be assigning the attorney who would represent respondents. Attached to plaintiffs declaration was a proof of service executed by one Clayre A. Quick, which specified that the petition for writ of mandate and accompanying papers had been delivered to Richard Thalhammer by facsimile copy on September 21, 2001, the date the petition was filed.
Two days before filing the petition, plaintiff also notified the legal department of the State Water Resources Control Board that he intended to file his petition and request an alternative writ and stay. According to plaintiffs declaration, he was familiar with the alternative writ process since 1978, and that the court could act ex parte or without an appearance.
Respondents opposed plaintiffs motion on the ground that it was unsupported by new facts or new law, and that facsimile service to the Attorney General did not comply with Section 1107.
Plaintiff filed a declaration in reply. He declared that he had again served the petition and moving papers on counsel for respondents on October 9, 2001, the day he filed his motion to reconsider. Plaintiff had served the documents on Bruce Reeves, the attorney assigned to the case, based on Reevess representation that he was authorized to accept service on respondents behalf. This representation was contained in a letter dated October 3, 2001, from Reeves to plaintiff. The letter states, in pertinent part: "Thank you for your telephone call explaining the courts apparent ruling in this case. Please send me a copy as soon as possible. [P] Today, the Board authorized me to accept service on their behalf, as to this case only, and only as to things served from today forward. I was not authorized to accept service before today."
Attached to plaintiffs declaration was another proof of service executed by Clayre Quick, which specified that the petition for writ of mandate and accompanying papers had been served on Reeves by mail on October 9, 2001.
The court summarily denied the motion for reconsideration by minute order dated November 6, 2001.
DISCUSSION
Section 1107 requires that an application for any prerogative writ be accompanied by a proof of service upon the respondent. Section 1107 also grants the court discretion to waive the service requirement for good cause shown. "When proceeding by alternative writ, the writ petition must be served on the respondent and any real parties in interest before it is filed, as a proof of service must be filed with the petition. For good cause, however, the court may excuse the requirement of prior service of the petition." (Cal. Administrative Mandamus (Cont.Ed. Bar 3d ed. 2003) § 11.52, pp. 436-437.)
Plaintiff filed his petition without a proof of service. It is true that plaintiff faxed a copy to the Department of Justice. This, however, was inadequate under Section 1107, which specifies that service of the petition is governed by Code of Civil Procedure section 1010 et seq. Under Code of Civil Procedure section 1013, subdivision (e), service by facsimile copy is permissible "only where the parties agree and a written confirmation of that agreement is made." (See also Cal. Rules of Court, rule 2008(b) [same].)
Were we left simply with this state of affairs, we might be inclined to uphold the superior courts dismissal order. Papers filed in connection with the reconsideration motion, though, revealed that the service issue actually was mooted by subsequent events. (See Cordova v. Vons Grocery Co. (1987) 196 Cal. App. 3d 1526, 1530-1532, 242 Cal. Rptr. 605 [motion for reconsideration is proper method for challenging a courts sua sponte dismissal of action].) Specifically, Reeves letter of October 3, 2001, stated that he was authorized to accept service on respondents behalf. Plaintiff complied with its terms by serving the petition and accompanying papers on Reeves. Thereafter a proof of service was filed with the court. There was nothing more for plaintiff to do to satisfy section 1107, except perhaps by personally delivering a third copy of the petition and accompanying papers on "the presiding officer, or upon the secretary, or upon a majority of the members, of the board or commission." (Section 1107.) Reevess letter, though, obviated the need for such action.
"It has been stated that `In practice, the discretion given by CCP section 1107, to permit exceptions to the rule that service must precede the filing of [the] petition, is interpreted quite broadly. [Citation.]" (Powers v. Commission on Judicial Competence (1984) 157 Cal. App. 3d 560, 577.) Factors to be considered in assessing whether the trial court has abused its discretion include the degree of formality required by local practices, and whether the failure to serve the petition has prejudiced the respondent. (Id. at pp. 576-577.) In the present case, respondents did not dispute plaintiffs claim that service before filing was not required in his experience. Nor did respondents undertake to identify any prejudice. Respondents arguments, and the courts ruling, are based exclusively on plaintiffs failure to serve the petition in accordance with the technical statutory requirements. Those requirements, however, are not mandatory, since they may be excused for good cause, which we believe was shown herein. Respondents were notified that plaintiff intended to file his petition before he actually did so; respondents attorneys received a facsimile copy of the petition on the day it was filed; respondents attorney later agreed to accept service on respondents behalf; and plaintiff thereafter served the petition on that attorney. In the absence of prejudice, which was not shown herein, the court should have granted the motion for reconsideration.
DISPOSITION
The judgment is reversed. The trial court is directed to set aside its order denying plaintiffs motion for reconsideration and its dismissal of plaintiffs petition and to enter a new order granting reconsideration and reinstating the petition. Appellant shall recover his costs on appeal.
We concur: HULL, J., ROBIE, J.
"The court in which the application is filed, in its discretion and for good cause, may grant the application ex parte, without notice or service of the application as herein provided.
"The provisions of this section shall not be applicable to applications for the writ of habeas corpus, or to applications for writs of review of the Industrial Accident or Public Utilities Commissions."