Filed 6/16/22 Finander v. Office of the Cal. Attorney General CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. L. Jackson Lucky IV, Judge. Affirmed.

Marlene R. Finander, Brian E. Finander, in pro. per., for Plaintiffs and Appellants.

Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Jennifer M. Kim, Gregory D. Brown and Benjamin G. Diehl, Deputy Attorneys General, for Defendant and Respondent.

Marlene Finander (Marlene)[1] is involved in an administrative proceeding with the California State Teachers Retirement System (CalSTRS) concerning her retirement benefits. (In the Matter of Retirement Benefits of Marlene Finander (Office of Administrative Hearings Case No. 2019091079.) During that proceeding, the administrative law judge (ALJ) denied Marlene’s request to be represented by Brian Finander (Brian), who is licensed to practice law only in Arizona and whose license to practice law is suspended. In the denial order, the ALJ wrote, “The Administrative Procedure Act does not authorize a party appearing before [the Office of Administrative Hearings] to be represented by a person who is not an active member of the State Bar. (Attorney General Opinion No. 41-101 (September 28, 2017).)”

Marlene and Brian (collectively, the Finanders) petitioned the trial court for a writ of mandate under the case name involving Marlene’s retirement benefits—In the Matter of Retirement Benefits of Marlene Finander. The Finanders named the Attorney General of the State of California (the AG) as the real party in interest; the Finanders listed themselves as the respondents; and they did not list a petitioner. In the petition, the Finanders faulted the AG for opining that only licensed California attorneys can represent parties in administrative proceedings. The Finanders requested a writ directing the ALJ to grant Marlene’s request to be represented by Brian. The trial court sustained the AG’s demurrer to the petition without leave to amend, denied the Finanders’ motion to vacate the order sustaining the demurrer, and entered judgment in favor of the AG.[2]

On appeal, Marlene contends the trial court erred and requests that we direct the trial court to issue the writ directing the ALJ to grant Marlene’s request for representation.[3]^, [4] We affirm.

FACTUAL AND PROCEDURAL HISTORY

A. DEMURRER

Descriptions of the administrative case and writ petition are provided ante, so we begin this section with the demurrer. In the demurrer, the AG contended, “[The Finanders] cannot sue the []AG in order to challenge the ALJ’s order denying Marlene’s request that Brian be allowed to represent her. [The Finanders] seek unavailable relief from an improper party.” The AG continued, “If [the Finanders] believe the ALJ misinterpreted the [Administrative Procedure Act], they should have sought relief against [the Office of Administrative Hearings] or CalSTRS.”

B. OPPOSITION

In the Finanders’ opposition to the demurrer, they asserted, “[T]he []AG says that it is the wrong party in this matter—but strangely, it admits that the only other official who—in theory—could rule on this—has already issued an order simply denying this! So, in theory, if this petition has merit . . .—who is it that will issue any ‘order’ [or ‘writ’] confirming/allowing this? The []AG’s argument is bizarrely TOTALLY CIRCULAR—because the ALJ simply issued her Order by[] saying that it is not her judicial duty to ‘reexamine’ or consider this further. Period. The ALJ NEVER considered this matter ON ITS MERITS; instead, she simply relied on ‘what is, is,’ saying it is not her job to reexamine this.”

C. REPLY

The AG replied, “To challenge the ALJ’s order denying Marlene’s request that Brian be allowed to represent her, [the Finanders] must seek a writ of mandate against the [Office of Administrative Hearings] and CalSTRS (as real party in interest). [Citation.] [The Finanders] failed to do that. In seeking to pursue their claims against the []AG rather than [the Office of Administrative Hearings] or CalSTRS, [the Finanders] seek unavailable relief from an improper party.”

D. SUSTAINED DEMURRER AND MOTION TO VACATE

The trial court issued a tentative opinion sustaining the demurrer without leave to amend. No one requested oral argument, so the tentative ruling became the court’s ruling. (Cal. Rules of Court, rule 3.1308(a)(1).)

The Finanders moved to vacate the order sustaining the demurrer. (Code Civ. Proc., § 473, subd. (b).)[5] The Finanders contended they called the courtroom clerk and waited on the phone to argue in opposition to the demurrer, but they were not given an opportunity to present an argument.

In the AG’s opposition to the motion, it asserted, “t is impossible for [the Finanders] to identify any argument they could have made at the hearing that would have prompted the Court to rule differently.” The AG explained, “Fatal to [the Finanders’] claims, and as recognized by the Court when it sustained the Demurrer without leave to amend, the []AG is not a party to the underlying administrative proceeding. [Citation.] Rather, the administrative proceeding is between [the Finanders] and [CalSTRS]. [Citation.] However, neither CalSTRS nor the Office of Administrative Hearings . . . are named as parties or real parties in interest to this action.”

In the Finanders’ reply, they asserted, “Since the [Office of Administrative Hearings] had TWICE made its position AGAINST the substantive request that began this case in the first place [October 2017 and December 2019]—SPECIFICALLY RELYING UPON the Legal Position of the []AG [Respondent herein] in its Opinion statement of September 2017—and as the ALJ of the other case stated—[i]BARRING in THAT forum any deviation from the []AG position, the ONLY remaining REAL WORLD option for [the Finanders] was/is, to seek an EXCEPTION IN EQUITY from THIS court in the form of a WRIT—which if granted—[the Finanders] herein could then present to THAT other legal forum for [the Finanders] herein use in that other legal forum.”

E. HEARING AND RULING

At the hearing on the motion, Brian asserted, “[T]he [ALJ] reconfirmed that there’s no possible way that they would allow the request that we have sought. So this left us with no other alternative except to come to this court. And I mentioned that because I think there’s been some suggestion that we should have tried something else. But I don’t know what that is.”

The AG responded, “[Brian] has a dispute with the Office of Administrative Hearings in connection with that administrative action. To the extent he wishes to challenge an order by the ALJ in that matter, he needs to name the proper parties.” Brian replied, “[T]he rights of the people . . . should be paramount over procedural disputes between agencies as to who should respond to what.”

The trial court determined, “The dispute here that the Finanders have is with a decision that an administrative law judge made.” The court explained, “[T]he review of a decision should be limited to a petition regarding the decision maker [sic] and not the sources upon which that decision maker [sic] relied in making a decision. [¶] . . . [A]s far as I can see, the [AG] [is] not a proper party to this litigation.” The trial court denied the motion to vacate.

DISCUSSION

A. DEMURRER

We review the sustaining of a demurrer under the de novo standard of review. (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050.) A demurrer may be sustained when there is a defect in the named parties. (Code Civ. Proc., § 430.10, subd. (d); Williams v. Southern Pac. R. Co. (1895) 110 Cal. 457, 459-460.)

A “writ may only issue against a respondent with a clear duty to perform a ministerial act and with a legal authority to discharge that duty.” (Sonoma County Nuclear Free Zone v. Superior Court (1987) 189 Cal.App.3d 167, 178 (Sonoma).) The Finanders requested a writ directing the ALJ to grant Marlene’s motion for representation. It is the ALJ who denied Marlene’s request for Brian to represent her, thus, it is the ALJ who would grant Marlene’s request for Brian to represent her. The ALJ sits in the Office of Administrative Hearings. Because, if the writ were to be granted, it is the ALJ who would grant the request for representation, the proper respondent in the case is the Office of Administrative Hearings.

“If the petition names as respondent a judge, court, board, or other officer acting in a public capacity, it must disclose the name of any real party in interest.” (Cal. Rules of Court, rule 8.486(a)(2).) We have concluded the proper respondent is the Office of Administrative Hearings, so we now examine the identity of the real party in interest.

“A petition for writ of mandate must name the real party in interest, who thereafter has a right to notice and to be heard before a trial or appellate court issues a peremptory writ. [Citations.] ‘Real party in interest’ has been generally defined as ‘any person or entity whose interest will be directly affected by the proceeding . . . .’ [Citation.] . . . [T]he real party in interest is ‘usually the other party to the lawsuit or proceeding being challenged.’ ” (Sonoma, supra, 189 Cal.App.3d at pp. 173-174.)

The administrative proceeding before the ALJ involved two parties: Marlene and CalSTRS. It is CalSTRS, as the other party in the administrative proceeding, who will be directly affected if Brian is permitted to represent Marlene in the proceedings. The AG is not a party to the administrative proceedings, and thus will not be directly affected if Brian represents Marlene. Accordingly, the proper real party in interest is CalSTRS.

In sum, the petition should have listed Marlene as the petitioner (Code Civ. Proc., § 367); the Office of Administrative Hearings as the respondent; and CalSTRS as the real party in interest. The AG was not a proper party. Therefore, the trial court did not err by sustaining the demurrer. (Code Civ. Proc., § 430.10, subd. (d).)

In the trial court, Brian referred to the issue of naming the proper parties as “a procedural technical argument,” and asserted “the rights of the people . . . should be paramount over procedural disputes between agencies as to who should respond to what.” Contrary to Brian’s assertion, the failure to name the correct parties is more than a technicality.

The Finanders are seeking a writ that will (1) require the ALJ to change her order; and (2) directly affect CalSTRS as the adverse party in the administrative proceedings. As a result, the Office of Administrative Hearings and CalSTRS are entitled to notice of the trial court proceedings and an opportunity to be heard, i.e., due process. (Sonoma, supra, 189 Cal.App.3d 173.) Incorrectly naming a party in trial court proceedings is not a minor matter because it denies the proper parties their opportunity to be heard in court. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314 [“ ‘The fundamental requisite of due process of law is the opportunity to be heard.’ [Citation.] This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest”].) By naming themselves as the respondent and the AG as sole real party in interest, the Finanders denied the Office of Administrative Hearings and CalSTRS an opportunity to be heard. Accordingly, it is not a minor issue.

B. LEAVE TO AMEND

When the trial court denies leave to amend, “ ‘we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ ” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

On August 25, 2020, the AG called Brian and they spoke about the grounds for the AG’s demurrer, but they were unable to resolve the issue. In the demurrer, filed on September 11, 2020, the AG asserted that it was not a proper party to the case. On October 21, 2020, in the AG’s reply to the opposition, the AG asserted, “In seeking to pursue their claims against the []AG rather than [the Office of Administrative Hearings] or CalSTRS, [the Finanders] seek unavailable relief from an improper party.” The AG’s reply to the opposition included a two-page explanation as to why the AG was not the proper party to name in the writ petition.

On January 12, 2021, in the AG’s opposition to the motion to vacate, the AG again explained, “[T]he administrative proceeding is between [the Finanders] and [CalSTRS]. [Citation.] However, neither CalSTRS nor the Office of Administrative Hearings . . . are named as parties or real parties in interest to this action.” On January 20, 2021, the trial court explained that the AG was “not a proper party to this litigation.”

Despite being repeatedly informed, for months, that the AG was the incorrect party, the Finanders never offered to amend their writ petition. On appeal, the Finanders still do not offer to amend their writ petition. Given that the Finanders never sought to amend their writ petition, we conclude the trial court did not abuse its discretion by denying leave to amend.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

SLOUGH

J.

FIELDS

J.

[1] We use first names for the sake of clarity. No disrespect is intended.

[2] The trial court did not dismiss the petition following the sustaining of the demurrer without leave to amend. (Code Civ. Proc., § 581, subd. (f)(1); Berri v. Superior Court (1955) 43 Cal.2d 856, 860.) Instead, the AG submitted a proposed judgment, which the trial court signed, reflecting that judgment was entered “in favor of [the AG] and against [the Finanders].”

[3] As noted by the AG, the Finanders’ notice of appeal reflects that the Finanders are appealing from the denial of their motion to vacate, but the Finanders’ appellate briefs indicate they are concerned with the order sustaining the demurrer. We treat the appeal as seeking reversal of the judgment entered in favor of the AG. (Code Civ. Proc., § 904.1, subd. (a)(1).)

[4] The AG asserts the Finanders forfeited the argument of error on appeal because the Finanders’ appellate arguments fail to address the trial court’s reasoning. We opt to address the issue on the merits despite the Finanders’ flawed briefs.

[5] The Finanders cited Code of Civil Procedure section 437, subdivision (b), in their motion, which we infer was a typographical error.