Wednesday, May 25, 2011
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Court Clarifies Rule on Service of Administrative Record
By KENNETH OFGANG, Staff Writer
Service of an administrative record by overnight courier is not equivalent to service by mail for purposes of calculating the statutory limitations period, the Court of Appeal for this district has ruled.
In an opinion for Div. Seven, filed May 16 and certified yesterday for publication, Presiding Justice Dennis Perluss said the language of Code of Civil Procedure Sec. 1094.6—which allows the filing of a petition for writ of administrative mandate up to 30 days “following the date on which the record is either personally delivered or mailed to the petitioner or his attorney of record”—must be strictly construed.
Since service by overnight courier is not mailing, the jurist concluded, the 30-day period following such service runs from the date the record is received by petitioner’s counsel.
The Court of Appeal reversed Los Angeles Superior Court Judge John H. Reid’s dismissal of the petition by West Hollywood landlords Esther and Jacob Blaich. The couple sought the writ after the West Hollywood Rent Stabilization Commission ruled that a tenant was entitled to a rent reduction and a refund of more than $12,000 in overcharges.
The Blaiches’ attorney requested the administrative record within the 10 days allowed by law. The record was sent by overnight courier on Friday, June 12, 2009, and delivered to the attorney’s office the following Monday.
The writ petition was filed on July 14—32 days after the record was sent and 29 days after it was delivered. Reid agreed with the city that the deadline was Monday, July 13—Sunday ,July 12 having been the 30th day—and that the petition was filed a day late.
Perluss, however, said service of the record was not complete until it was delivered on June 15, so filing of the petition 29 days later was timely.
Because the time limit is jurisdictional, he explained, it must “be strictly construed to avoid the forfeiture of a person’s rights.” This is particularly true in cases where the time period is very short, Perluss said.
“Based on these concerns, as well as fundamental principles of statutory construction, courts have declined to stray from the express language of section 1094.6,” he wrote. Previous cases, he noted, have held that the requirement that an agency decision be mailed “to the party seeking the writ” cannot be satisfied by mailing it to the party’s attorney and that the requirement that a certificate of mailing accompany the written decision is not satisfied by a cover letter.
Code of Civil Procedure Sec. 1013, the jurist noted, distinguishes among various methods of service, including regular mail, express mail, overnight delivery, and fax, and sets out the requirements for each. Sec. 1094.6, he said, is specific as to how the record is to be served.
“The plain language of section 1094.6, subdivision (d), specifies the record be ‘either personally delivered or mailed,’” the presiding justice wrote. “The word ‘mailed’ is not the same as delivery by an overnight courier.”
In a footnote, Perluss acknowledged that it might seem “anachronistic” not to allow the administrative record to be served in the same manner as other legal documents. But any change must come from the Legislature, he warned.
Attorneys on appeal were Craig Mordoh for the Blaiches and City Attorney Michael Jenkins and the firm of Jenkins & Hogin for West Hollywood.
The case is Blaich v. West Hollywood Rent Stabilization Department, B224142.
Copyright 2011, Metropolitan News Company