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C.A. Says A.G.’s Office Improperly Named in Action in Which Its Opinion Was Invoked
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has affirmed a judgment denying a writ of mandate sought by a retired teacher for the Los Angeles Unified School District who contests the denial of permission for her husband, a suspended Arizona attorney, to represent her in an administrative hearing over her benefits, with the justices declining to address the merits.
They held that the action was brought improperly against the Office of Attorney General.
It was that office that had issued a Sept. 28, 2017 opinion upon which an administrative law judge (“ALJ”) relied in barring legal representation of Marlene R. Finander by Brian E. Finander. The ALJ concluded that, under Opinion No. 41-101, the Administrative Procedure Act “does not authorize a party” to a proceeding before the Office of Administrative Hearings “to be represented by a person who is not an active member of the State Bar.”
Riverside Superior Court Judge L. Jackson Lucky IV sustained demurrers without leave to amend to a Jan. 23, 2020 petition for a writ of mandate sought by both Finanders. In that petition, the Office of Attorney General was named as the “real party in interest,” the Finanders denominated themselves as the respondents, and no petitioner was listed.
Rather than ordering a dismissal, Lucky on Nov. 5, 2020, signed a judgment in favor of the Office of Attorney General which that office presented to him. Denying a motion to set aside the judgment, Lucky said that “the review of a decision should be limited to a petition regarding the decision maker and not the sources upon which that decision maker relied” and that the Office of Attorney General, having “played no role in the administrative proceeding,” is “not a proper party to this litigation.”
In the course of their brief in the Court of Appeal, the Finanders appear to argue that opinions of the Office of Attorney General are advisory, only, and should not be followed blindly, but that even if there is adherence to Opinion No. 41-101, it should be recognized that it merely says that the Administrative Procedure Act does not “authorize” representation by a non-California attorney but doesn’t say it “prohibits” it.
The brief asserts that the ALJ, in relying on that opinion, made what “is actually in the REAL WORLD a 100% ‘economically discriminatory’ ruling.” It explains that “[i]n the bureaucratic world” of the Office of Attorney General, “only persons who can AFFORD to hire” members of the State Bar of California to represent them at administrative hearings—at “very expensive HOURLY rates”—will have legal representation.
It was noted that Marlene Finander had been represented by her husband in her disability proceedings before the Workers Compensation Appeals Board, no cost to her, but was denied the same right to his championing her cause before the Office of Administrative Hearings.
“Appellants have already been forced to spend extensive funds to try to vindicate our rights,” they wrote. “It is simply wrong for government bureaucrats employed by Appellees to waste time to [I] ignore us, [II] actually play a ‘shell game’ re our rights, and [III] then employ lawyers to try to deny us our rights as citizens of this State.”
The Office of Attorney General said in its respondent’s brief that in the administrative proceeding, initiated by the California State Teachers’ Retirement System (“CalSTRS”), it was not a party, and noted that the Finanders failed to address in their brief on what basis they were contesting Lucky’s determination that the office was not properly named.
Appeals Court’s Opinion
The Court of Appeal on Thursday, in an unpublished opinion by Acting Presiding Justice Douglas P. Miller, affirmed the judgment in favor of the Office of Attorney General. He wrote:
“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…; 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.”
Miller went on to say:
“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.
“…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….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.”
The Finanders should not be given another bite at the apple, Miller said, declaring: “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.”
The case is Finander v. Office of the California Attorney General, E076532.
Administrative Proceeding Concluded
Not reflected by the opinion is that the proceeding before the Office of Administrative Hearings is not pending. On Nov. 16, 2020, Administrative Law Judge Mary Agnes Matyszewski rendered a proposed decision that CalSTRS had not miscalculated Marlene Finander’s benefits—she claimed she had more than 27 years of service, while it determined it was less than 25 years—and the Appeals Committee on Jan. 7, 2021, adopted Matyszewski’s decision, with minor modifications.
Miller did not explain why an effort to force an ALJ to allow representation of Marlene Finander by a non-California lawyer is not moot given that the administrative proceeding has been completed. He also did not set forth whether that effort entailed an assertion that Brian Finander should have been allowed to represent his wife on a pro haec vice basis, notwithstanding his suspension from practice in Arizona, or (as implied by the appellants’ brief) simply as a lay representative.
Also not included in the discussion is how Brian Finander had standing in the writ proceeding or in the appeal from the judgment emanating from that proceeding.
Disciplinary Proceedings
Brian Finander was suspended from law practice by the Arizona Supreme Court for a one-year period effective Feb. 4, 2010 or until he made restitution to his client/victims and paid the costs of the disciplinary. He has not gained reinstatement.
Among the findings was that he represented an elderly client who was disabled and caused that client to execute, unwittingly, a power of attorney conferring upon him an ownership interest in his personal property, and that he drafted a will for the client that, contrary to the client’s instructions, named him as sole beneficiary.
Dishonesty in billing was also found.
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