Case Number: BS171671    Hearing Date: June 21, 2018    Dept: 85

Bruce Dwain Copeland v. California Contractors Licensing Board, et al.,           BS 171671

Tentative decision on petition for writ of mandate: denied

Petitioner Bruce Dwain Copeland (“Copeland”) seeks a writ of mandate directing Respondent California Contractors State License Board (“Board”) to set aside the citations issued to him.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

  1. Statement of the Case
  2. Petition

Petitioner Copeland commenced this proceeding on December 6, 2017.  The operative pleading is the First Amended Petition (“FAP”) filed March 21, 2018.  The verified FAP alleges in pertinent part as follows.

            Copeland is an Oklahoma citizen.  In 1996, Copeland was a partner of AMA Builders with Erroll Darnell (“Darnell”).  That same year, Copeland and Darnell parted ways.

In 2015, Copeland moved to California to open a construction company with his former office manager Vickie Herrera (“Herrera”) and friend Che McConico (“McConico”).  On November 18, 2015, the three friends formed AB Construction & Restoration, Inc. (“AB Construction”).  Herrera was appointed president and licensee of AB Construction.

In March 2016, Respondent Board cited Herrera for wrongdoing committed in 2014.  Because the allegation against Herrera threatened AB Construction’s contractor’s license, Copeland and McConico decided to find a new president and licensee.  Copeland also elected to seek his own contractor’s license in case they were unable to find a new licensee.

In April 2016, Copeland filed an application for a contractor’s license with the Board.  In July 2016, Copeland received notice from the Board that his application was unacceptable due to outstanding citations.  The notice gave Copeland until September 20, 2016 to resolve the issues.

Copeland met with the Board and discussed the notice.  Copeland learned that he needed to address four citations before he would be allowed to take the licensing exam.  Copeland was given the citation numbers.  On August 31, 2016, Copeland sent an email to the Board seeking copies of the alleged citations.

On September 23, 2016, Copeland received some documents from the Board but nothing regarding the citations.  On the same date, Copeland emailed the Board expressing his concern that he was not given adequate information.  He was told that the Board makes the final determination and that no court could review or overturn its decision.

From September 23 to October 20, 2016, Copeland could not get answers or information about the documents which barred his access to the licensing exam.  In the meantime, Copeland and McConico replaced Herrera with another person.

On October 20, 2016, the Board cancelled Copeland’s application.  This did not affect AB Construction since it was operating with a new president.

In December 2016, Copeland filed a document with the Board to be added as an officer to AB Construction.

            In September 2017, AB Construction received notice that its license was suspended for failure to provide workers’ compensation insurance.  Copeland contacted AB Construction’s workers’ compensation insurance company and set up an audit to correct the deficiency.  Copeland then again began the process of acquiring his personal license.  In response, the Board recorded a complaint against Copeland on the ground that he did not take the proper steps to list his name as an officer of AB Construction and had not remedied the citation issues.

            The Board cancelled AB Construction’s license and refuses to allow Copeland to take the licensing exam until he pays for citations that he has been unable to fully review.

            Copeland alleges that the Board’s refusal to provide him with information about the citations violates the California Public Records Act (“CPRA”).  Copeland also alleges that the Board has issued orders against him without notice and an opportunity to defend thereby violating his right to due process.

  1. Course of Proceedings

            On March 6, 2018, the court sustained the Board’s demurrer with leave to amend only on the grounds that Copeland failed to verify his Petition.

            On April 27, 2018, the court denied Copeland’s ex parte application for a temporary restraining order and order to show cause why a preliminary should not be issued.  The court noted, inter alia, that the application was unsupported by any evidence. Acknowledging that Copeland had already submitted his opening brief, the court then stated that Copeland could file an amended opening brief by May 2, 2018 in order to authenticate evidence.

  1. Standard of Review

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies.  Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts.  Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811.  In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143.  See CCP §1094.5(c).  The imposition of a civil penalty does not warrant exercise of independent judgment.  Steinsmith v. Medical Board, (2000) 85 Cal.App.4th 458, 464.

“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California Youth Authority”) (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value.  Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n.28.  The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole record.  Young v. Gannon, (2002) 97 Cal.App.4th 209, 225.  The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision.  California Youth Authoritysupra, 104 Cal.App.4th at 585.

The agency’s decision must be based on the evidence presented at the hearing.  Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862.  The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision.  Topangasupra, 11 Cal.3d at 514-15.  Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, 11 Cal.3d at 515.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof.  Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137.  “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.”  Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

  1. Statement of Facts[2]
  2. Respondent’s Evidence

Petitioner Copeland was a general partner in AMA Builders.  RJN Ex. D.  Copeland’s registered address was 1615 W. 218th Street, #7, Torrance. Ca. (“Torrance Address”).  Id.

  1. The AMA Builders Citation

On July 12, 1996, the Board issued a citation to AMA Builders in accordance with Business and Professions (“B&P”) Code section 7099.  RJN Ex. B, p.1.  The citation listed several B&P Code violations, including (1) abandonment of project, (2) failure to complete project for the contract price, and (3) diversion of funds received from the project owner.  RJN Ex. B, pp. 2-3.  The citation ordered AMA Builders to pay the project owner $7,334.70 because of its failure to complete the project.  RJN Ex. B, p.2.  According to a declaration of service, on September 17, 1996 the citation was served via certified mail to AMA Builders c/o Darnell and to Copeland at various addresses, including the Torrance Address.  RJN Ex. B.  Attempted service of Copeland’s letter at the Torrance Address and another address are marked “return to sender”.  Id.  Darnell signed for a certified mail delivery.

On October 20, 1997, the Board revoked AMA Builder’s license as a result of the unpaid citation fine and failure to pay restitution. RJN Exs. A, E.

  1. The Copeland Citation

On April 17, 2008, the Board issued a citation to Copeland in the amount of $1,500 for misrepresenting himself as a contractor and performing contract work without a license.  RJN Ex. F.  The citation was served on Copeland via certified mail at the Torrance address.  Id.  Copeland signed for the mail.  Id.

The citation is unpaid.

  1. The Document Production

On September 7, 2016, in accordance with Copeland’s request, the Board sent him a copy of AMA Builder’s license and the aforementioned citations.  RJN Ex. H.  The Board also notified Copeland that two complaints regarding other acts could not be produced because they had been “purged” according to the Board’s records retention schedule.  Id.

  1. Analysis

Copeland seeks a writ of mandate directing Board to provide documents and procedures used to set aside its citations issued against him.

  1. Procedural Deficiencies

In a petition for writ of mandate brought pursuant to CCP 1085, the petitioner bears the burden of pleading and proving the facts on which the claim for relief is based.  Los Angeles Police Protective League v. City of Los Angeles, (2014) 232 Cal.App.4th 136, 140.  A verified pleading may not be used in motion proceedings in lieu of affidavits or declarations.  Strauch v. Eyring, (1994) 30 Cal.App.4th 181, 186.

Copeland has not carried his burden.  He filed an initial opening brief with attached exhibits but without a declaration authenticating them.  As a result, the exhibits could not be admitted into evidence.  See Evid. Code §1401.  Pursuant to the court’s instructions, Copeland refiled his opening brief with an attached declaration.  However, the declaration did not present any facts or authenticate exhibits.  Instead, the declaration merely claims that “the foregoing is true and correct.”  Assuming that this is a reference to the memorandum of points and authorities, it is not acceptable.  A party cannot authenticate a memorandum of points and authorities, the purpose of which is to apply the law to the facts and argue the issues.  The court will not parse through Copeland’s memorandum to discern fact from argument.  See generally In re Marriage of Heggie, (2002) 99 Cal.App.4th 28, 30, n.3.

Copeland has not carried his burden of proof, and his petition is denied.

  1. The CPRA Claim

Assuming arguendo that these procedural deficiencies should be overlooked, Petitioner Copeland argues that the Board has violated the CPRA by not providing the documents he requested.  Pet. Op. Br. at 9-10.  This claim is for declaratory relief or traditional mandamus. Govt. Code §6258.  Copeland states that he sent a request “for all copies” and sent it by mail on September 1, 2016.  Pet. Op. Br. at 7. On or about September 23, 2016, he received the citation documents from the Board, but nothing regarding the cases.  Id.

Although Copeland does not present the September 23, 2016 letter, the Board does.  Miller Decl., RJN Ex. H.  This letter shows that Copeland was sent the pertinent citations, but the investigative reports were withheld as exempt.  Id.  Two complaints that did not result in citations were not produced because they had been purged.  Id.  The Board also presents evidence that on May 15, 2018, it provided Copeland with the investigative reports previously withheld. Miller Decl., RJN Ex. I.  The cover letter states that all responsive documents relating to the citations in the Board’s possession, custody, and control have been produced.  Id.

As a result of this production, the Board contends that Copeland’s CPRA claim is moot.  Opp. at 5.  Petitioner Copeland does not disagree.  See Reply at 2-3.

  1. The Citations

Copeland presents this action to set aside two citations.  See Pet. Op. Br. at 5.  The Board issued the pertinent citations: (a) a July 12, 1996 citation to AMA Builders and (2) an April 17, 2008 citation to Copeland.  The Board asserts that judicial review of the citations is time-barred.  Opp. at 8. Whether Copeland’s claim is time-barred depends on proper service or actual notice.  See Baugman v. Medical Board, (1995) 40 Cal..App.4th 398, 402 (due process satisfied by method of service in Govt. Code §11505).

In 1996, AMA Builders was a licensed contractor.  If, upon investigation, the registrar has probable cause to believe that a licensee has committed any acts or omission that is grounds for denial, revocation, or suspension of a license, he or she may issue a citation to the licensee.  B&P Code §7099.  When a board or agency is required to give a licentiate written notice, it may be given by regular mail to the last known address if the licentiate.  16 CCR §886.  Licensees are required to notify the board of any change of their mailing address within 30 days of the change.  B&P Code §136.  If within 15 working days from service of the citation, the licensee fails to notify the registrar that he or she intends to contest the citation, the citation shall be deemed a final order of the registrar and not be subject to review by any court or agency.  B&P Code §7099.4.[3]

AMA Builders was served by certified mail at its address of record: 520 North La Brea #218, Inglewood, Ca.  Miller Decl. Ex. B. Under B&P Code section 136, this was sufficient even though the mail receipt shows that the letter was returned to sender.  Id. Moreover, while other mailings to Copeland and Darnell were also returned, Darnell signed for a certified mailing on September 25, 1996.  Id.  Service on AMA Builders was effective.  Its failure to contest means that the citation is final and cannot be contested in court.  B&P Code §7099.4.  Copeland’s argument to the contrary is erroneous.  Reply at 3.

Copeland was a partner in AMA Builders.  As a general partner, Copeland is responsible for the debts of AMA Builders.  Moreover, the citation against the partnership constitutes cause for disciplinary action against any licensee other than the qualifying individual if the person was a partner and knew about or participated in the prohibited act or omission.  B&P Code §7122.  The Board concluded that Copeland was knowingly responsible (Miller Decl. RJN Ex. C), and it is too late for him to contest it.

As for the second citation, in 2008 Copeland was not a licensed contractor.  If, upon inspection or investigation, the registrar has probable cause to believe that a person is acting in the capacity or engaging in the business of a contractor without a license in good standing, the registrar shall issue a citation to that person.  B&P Code §7028.7.  The citation may be served by certified mail at the last known business or residence address of the person.  B&P Code §7028.8.   If within 15 working days from service of the citation, the person cited fails to notify the registrar that he or she intends to appeal the citation, the citation shall be deemed a final order of the registrar and not be subject to review by any court or agency.  B&P Code §7028.11.

Copeland was served by certified mail at the Torrance Address on April 17, 2008 pursuant to B&P Code section 7028.7.  Miller Decl. RJN Ex. F.  Kim Copeland signed the receipt.  Id.  This address was taken from DMV records.  Miller Decl. RJN Ex. G.  There is no indication that Copeland notified the registrar that he intended to contest the citation within 15 days after service of these citations.

Accordingly, the citations are final orders properly served and are not subject to review by the court.

  1. Conclusion

The petition for writ of mandate is denied.  The Board’s counsel is ordered to prepare a proposed writ and judgment, serve it on Copeland’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed writ and judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for ­­­July 31, 2018 at 1:30 p.m.

[1] Copeland’s reply brief was filed one day late.  See CCP §1005.  In its discretion, the court has considered the late-filed brief.

[2] The Board seeks to judicially notice (1) the license history for AMA Builders (Ex. A), (2) citations issued to AMA Builders and Copeland (Exs. B, F), (3) investigative reports for AMA Builders and Copeland (Exs. C, G), (4) an application for a license for AMA Builders (Ex. D), (5) a Notice of Intent to Revoke sent to AMA Builders (Ex. E), (6) a letter from the Board to Copeland (Ex. H), and (7) a letter from the Board’s counsel to Copeland (Ex. I).

The Board’s request is granted only as to Exhibit A because it is an official agency act.  Evid. Code §452(c).  As intimated in the court’s ruling on the demurrer, the other exhibits are not official agency acts and will not be judicially noticed.   Regardless, these Exhibits are in evidence without objection pursuant to the Miller declaration and various certifications.

[3] Judicial review of the Board’s citation decision may be had through mandamus petition filed within 60 days of the agency’s decision (30 days after reconsideration may be ordered).  Govt. Code §§ 11523, 11421.

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