Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment order of the Superior Court of the County No. BS119910 of Los Angeles, David Yaffe, Judge.
Baker Law Group, John H. Baker for Plaintiffs and Appellants.
Department of Corporations, Preston DuFauchard, Corporations Commissioner, Alan S. Weinger, Deputy Commissioner, Lindsay B. Herrick, Corporations Counsel for Defendants and Respondents.
MOSK, J.
INTRODUCTION
Defendant and respondent California Corporations Commissioner (along with the California Department of Corporations (defendants)) issued a Desist and Refrain Order to plaintiffs and appellants Allied Energy, Inc., T3 CBM Development, Richard P. Underwood, Steve S. Stengell, Scott A. Harris and Frank Morones (plaintiffs) for violation of Corporations Code sections 25110 and 25401 with respect to an offering of investment interests in an oil and gas venture. An administrative law judge upheld the order. Plaintiffs did not seek reconsideration. Plaintiffs filed their Petition for Writ of Administrative Mandamus. Defendants moved for summary judgment for plaintiffs’ failure to file timely their petition, and the trial court granted the motion.
Plaintiffs contend that defendants’ failure to give plaintiffs actual notice of the time limits for petitioning for reconsideration precludes the running of the time limitation period and estops respondents from asserting the time bar, and therefore the summary judgment should be reversed. We affirm the summary judgment.
BACKGROUND
Plaintiff T3 CBM Development is an oil and gas company with its principal place of business in Kentucky. Plaintiff Allied Energy, Inc. (formerly known as Allied Syndications, Inc.) is the managing partner of plaintiff T3 CBM Development, a Kentucky general partnership, another plaintiff. The individual plaintiffs, except for Rick Underwood, are alleged to be officers or executives of plaintiff Allied Energy, Inc., and they and Underwood, along with the entities, are the subject of the Desist and Refrain order.
Defendant California Corporations Commissioner found that plaintiffs offered units of T3 CBM Development, which were securities that did not comply with the qualification requirements of the California Corporate Securities Act of 1968 (Corp. Code, § 25110 (Act) and which included an untrue statement of fact or omission of a material fact, in violation of the Act (Corp. Code, § 25401).
The Corporations Commissioner issued a Desist and Refrain order to plaintiffs, asserting there were violations of California securities law. (Cal. Corp. Code, § 25532.) Plaintiffs requested an administrative hearing on the matter. After a hearing at which plaintiffs did not appear or offer any evidence, the administrative law judge issued a proposed decision affirming the Desist and Refrain order. A final administrative decision adopting the proposed decision was issued by defendants on July 29, 2008 and, by its terms, became effective on July 30, 2008.
The decision was mailed to the plaintiffs on July 30, 2008. The decision was accompanied by a cover letter that stated, in pertinent part, “Enclosed please find the Department of Corporations’ final decision.... Please note that provisions of the Government Code, including sections 11521 and 11523, set forth procedures and time frames for petitioning the final decision.” The administrative record does not reflect that plaintiffs sought reconsideration in this matter, or that any reconsideration was ordered by defendants.
Plaintiffs filed their Petition for Writ of Administrative Mandamus in the Orange County Superior Court on September 26, 2008. On October 17, 2008, plaintiffs submitted a request to defendants for a record of the administrative proceedings in this case. The case was then transferred to the Los Angeles Superior Court on April 2, 2009, in response to plaintiffs’ motion for a change of venue. Defendants brought a Motion for Summary Judgment for plaintiffs’ failure to timely file their petition, which motion was granted and judgment was entered. Plaintiffs timely filed a notice of appeal.
DISCUSSION
A. Standard of Review
The parties agree that there is no dispute regarding the facts. Review of a summary judgment is de novo. (Reid v. Google, Inc. (2010) 50 Cal.4th 512. 527.) Moreover, when the facts are not in dispute, the existence of an estoppel is a question of law that is reviewable de novo. (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305-306.)
B. Applicable Statutes
The Administrative Procedures Act (Gov. Code, § 11500 et seq.) is applicable to the decision of the Commissioner of Corporations here. (Gov. Code, § 11501, Corp. Code, §§ 25215, 25702, 31513; Cal. Code Regs., tit. 10, § 250.17; Bixby v. Pierno (1971) 4 Cal.3d 130, 159.) Section 11523 states in part: “Judicial review may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure, subject, however, to the statutes relating to the particular agency. Except as otherwise provided in this section, the petition shall be filed within 30 days after the last day on which reconsideration can be ordered....” Where petitioner, within 10 days after the last day on which reconsideration can be ordered, requests the agency to prepare all or any part of the record, the time within which a petition may be filed shall be extended until 30 days after its delivery to him or her. Plaintiffs filed their petition on September 26, 2009, past the 30 day deadline. This specific period of limitations applies notwithstanding any general limitation period. (1 Robinson, Cal. Admin. Mand: Statute of Limitations (Cont.Ed.Bar. 3d ed. 2009) § 9.3, pp. 335-336 (Robinson).)
All statutory references are to the Government Code unless otherwise indicated.
Section 11521, subdivision (a) provides: “The agency itself may order a reconsideration of all or part of the case on its own motion or on petition of any party. The agency shall notify a petitioner of the time limits for petitioning for reconsideration. 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.” (Italics added.)
C. Application of Statutes
The order became final and was mailed on July 30. 2008. As the order specified that its effective date was July 30, 2008, that was the last day that reconsideration could be ordered. (Robinson, supra, 1 Cal. Admin. Mand. at § 9.16, p. 346.) Defendants did not request reconsideration and did not request a copy of the administrative record until October 20, 2008. The limitations period was not tolled or extended under sections 11519 or 11523. Plaintiff did not file their petition until September 26, 2008.
Plaintiffs contend that the limitations period never began to run and that defendants are estopped to assert the time bar because defendants allegedly failed to comply with the requirements of section 11521, which provides that a party against which an order is issued be provided notice of the time limits for filing a petition for reconsideration. The trial court concluded that defendants did not comply with the notice requirements of section 11521, but that such noncompliance did not affect the time limitations under section 11523.
There is a conflict in the cases as to whether the time provision in Government Code section 11340 is jurisdictional. The Supreme Court in Ginns v. Savage (1964) 61 Cal.2d 520 said that the limitation provision is a statue of limitations that may be tolled by acts of estoppel. Later cases have, however, suggested that the time period for seeking judicial review of an administrative order is jurisdictional. (See, e.g., Donnellan v. City of Novato (2001) 86 Cal.App.4th 1097, 1103; Elliott v. Contractors’ State License Bd. (1990) 224 Cal.App.3d 1048, 1052 [noting conflict in cases]; 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 307, pp. 1228-1229; Robinson, supra, 1 Cal. Admin. Mand. at § 9.27, pp. 352-353.) Yet, even when the time has been viewed as jurisdictional, a court still considered an estoppel argument. (Elliott v. Contractors’ State License Bd., supra, 224 Cal.App.3d at p. 1053.)
An agency may be estopped from asserting a time bar statute if the agency induced the petitioner’s delay. (Ginns v. Savage, supra, 61 Cal.2d 520.) But estoppel can only be invoked against a public agency “if [it] acted in an unconscionable or unreasonable manner or intended to, or did, take unfair advantage of the plaintiff, and only as long as estoppel will not nullify a strong public policy rule adopted for the public’s benefit. [Citations.]” (Robinson, supra, 1 Cal. Admin. Mand. at § 9.29, p. 354.) It has been held that such estoppel will only apply when the agency engages in affirmative conduct causing the petitioner to delay filing an action, not the mere passive failure of the agency to act or respond. (Id. at p. 365; Elliott v. Contractors’ State License Bd., supra, 224 Cal.App.3d at p. 1053.)
The elements of estoppel have been set forth by our Supreme Court as follows: “‘The doctrine of equitable estoppel is founded on concepts of equity and fair dealing. It provides that a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment. The elements of the doctrine are that (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 488-489 [91 Cal.Rptr. 23, 476 P.2d 423].)’ [Citations.]” (City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279.)
Petitioners reviewed defendants letter of July 30, 2008, notifying them that the order became effective that date and advising them that sections 11521 and 11523 governed the “procedures and time frames” for filing a petition with the trial court. The notification given by defendants did not specifically set forth the time limits for petitioning for reconsideration, but by providing the notice of the effective date of the order and the relevant code sections, it is arguable that the required notification was given. Moreover, any notification would not have assisted plaintiffs because by the time they received the notification, the defendants had no power to reconsider its order; the effective date of the order had already transpired. (See DeCordoba v. Governing Board (1977) 71 Cal.App.3d 155, 159 [In making an order effective immediately, as permitted by section 11521, a Board can eliminate the period for reconsideration and thereby accelerate the 30-day time period under section 11523.])
More importantly, defendants did not misrepresent or conceal any facts from plaintiffs, nor did defendants take any affirmative act that caused plaintiffs to delay filing their petition. (Elliott v. Contractors’ State License Bd., supra, 224 Cal.App.3d at p. 1053.) Defendants did not mislead plaintiffs. (See Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567, 582.) Nothing defendants did or did not do can be viewed as unconscionable, or unreasonable, or calculated to take an unfair advantage of plaintiffs. Here there is no showing of a “grave injustice” necessary for there to be an equitable estoppel against a government agency. (City of Goleta v. Superior Court, supra, 40 Cal.4th at p. 279; Driscoll v. City of Los Angeles, supra, 67 Cal.2d at p. 306.) As a matter of law, the undisputed facts are such that plaintiffs are not, under a theory of estoppel, entitled to relief from their late filing.
Plaintiffs invoke Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, which held that an insurer may be estopped to rely on a contractual limitations period for failure to comply with regulations requiring notice of the time period. That case involves notice of the time period for insurance contracts. Here, the required notice is not of time period to file a writ of mandate, but rather of the time period for a reconsideration petition.
It is true that the period for filing a writ petition may be computed by the time for a reconsideration petition. But here, there was no period allowed for reconsideration, and defendant had no obligation to provide a period for reconsideration. (See DeCordoba v. Governing Board, supra, 71 Cal.App.3d at p. 159.) Under these circumstances, no notice regarding reconsideration is required. (Ibid.)
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.