The opinion
Filed 1/22/24 Southwick v. Contractors State License Board CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
PAUL J. SOUTHWICK,
Plaintiff and Appellant,
A161391
v.
CONTRACTORS STATE LICENSE (Alameda County
BOARD, et al., Super. Ct. No. RG-17863164)
Defendants and Respondents.
Appellant Paul J. Southwick, representing himself, filed a petition for a
writ of administrative mandate under Code of Civil Procedure section 1094.5.
The trial court dismissed the case without prejudice for failure to serve the
defendants within three years after the action was commenced. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On June 7, 2017, Southwick filed in Alameda County Superior Court a
“Verified Petition for Writ of Mandamus and Sanctions for Bad Faith Actions
of Counsel,” naming as defendants the Contractors State License Board
(Board), the Office of Administrative Hearings (OAH), the Department of
Consumer Affairs, and various individuals. In the petition, Southwick
alleged a citation issued to him by the Board was “unlawfully created, faulty,
improperly or improvidently drawn or made, and or is the product of an
“ ‘Underground Regulation’ . . . .” (Italics omitted.)
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On June 14, 2017, Southwick filed a “Certificate of Proof of Service,” in
which he declared that, “[p]ursuant to the provisions outlined in C.C.P.
1013(a)(1),” he had mailed a copy of the petition to “the following parties and
or persons,” listing the OAH, the Board, the Department of Consumer Affairs,
individual Board employees or former employees, an attorney at the
Department of Justice, an attorney for the Office of the Attorney General,
“One Unknown Doe,” and Richard Laguens.1
On July 14, 2017, the OAH filed a “Notice of Non-Appearance.” The
OAH averred that it was “enter[ing] its special appearance” to give notice
that it would “not be an active participant in this matter” unless the trial
court directed otherwise. It further stated that any request for fees or costs
against OAH should be denied under Oksner v. Superior Court (1964) 229
Cal.App.2d 672.
On December 10, 2019, Southwick filed a “Dec[l]aratory Response Re:
O.S.C. Scheduled For 12-12-2019” (OSC response). The appellate record does
not contain an underlying order to show cause, but the OSC response
indicates the trial court had issued an order to show cause related to
Southwick’s failure to establish “Service of Process/Summons & Complaint.”
(Italics omitted.) In the OSC response, Southwick argued, among other
things, “The requirement to show proofs and or file the requested documents
have been MOOTED by Respondents’ ‘GENERAL APPEARANCE’ as
evidenced by the filing of The Attorney General’s ‘First Paper’ on July 14,
2017.” Here, Southwick seems to be referring to the OAH’s special
1 Laguens had apparently filed a complaint that led to the Board
issuing Southwick a citation. The trial court granted Laguens judgment on
the pleadings, and we affirmed that judgment in Southwick v. Laguens (Dec.
21, 2018, A152890) 2018 WL 6715948, *1.
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appearance notifying the trial court and Southwick that it would not
participate in the action.
In advance of a hearing scheduled for September 16, 2020, the trial
court ordered Southwick to appear and show cause why the court should not
dismiss the case without prejudice, “ ‘pursuant to mandatory dismissal
requirements set forth in Code of Civil Procedure Sections 583.210, 581(b)(4),
581(g), and 583.250, for plaintiff’s failure to timely serve the defendant(s)’
named in the Petition for Writ of Mandate.”
In a written order issued after the hearing on September 16, 2020, the
trial court explained that Southwick “has never filed appropriate proof of
service of his Petition for Writ of Mandate . . . on any of the remaining named
defendants identified in his Petition.”
Accordingly, the trial court ordered: “Plaintiff Paul Southwick, having
failed to effectuate lawful service of the Petition for Writ of Mandate that he
filed on 06/17/2017, and having failed to file proof of such lawful service with
the Court within the time limits prescribed in the Code of Civil Procedure,
including Section 583.210, the Court hereby orders this case dismissed
without prejudice forthwith, as mandated by Section 583.250.”
Southwick filed a notice of appeal.
DISCUSSION
“[S]ervice of a petition for an administrative writ of mandate must be in
the same manner required for any civil action.” (Board of Supervisors v.
Superior Court (1994) 23 Cal.App.4th 830, 839; see Code Civ. Proc.,2 § 1109
[provisions governing civil actions generally “constitute the rules of practice
in” writ proceedings].)
2 Further undesignated statutory references are to the Code of Civil
Procedure.
3
As the Attorney General3 explains, this means service by mail of a
petition for administrative mandate must comply with section 415.30,
subdivision (a), which requires mailing “[a] copy of the summons and of the
complaint . . ., together with two copies of the notice and acknowledgment . . .
and a return envelope, postage prepaid, addressed to the sender.” Service of
summons by mail is deemed complete only if “a written acknowledgment of
receipt of summons is executed” and “returned to the sender.” (Id., subd. (c).)
In this case, while Southwick filed a “Certificate of Proof of Service”
indicating he mailed the petition to identified defendants, it does not appear
that he has ever completed service of the summons and petition in
compliance with section 415.30. In particular, there is no evidence that
written acknowledgments of receipt of the summons and petition were ever
signed by defendants and returned to the sender as required by section
415.30, subdivision (c).
On appeal, Southwick argues that the OAH’s “Notice of Non-
Appearance” constituted a general appearance, which “summarily waived”
“any need for a ‘Summons’ or ‘Return of a Proof of Summons’ on the OAH.”
We disagree.
Southwick relies on the rule that “[a] general appearance by a party is
equivalent to personal service of summons on such party.” (§ 410.50.) A
defendant makes a general appearance in an action when, for example, “the
defendant answers, demurs, files a notice of motion to strike, files a notice of
3 After Southwick filed an opening brief and a motion to amend his
opening brief (which motion we granted), the Office of the Attorney General
notified this court that it would not file a respondent’s brief on behalf of the
Board or its employees because Southwick never effectuated service on any of
them. We asked the Attorney General to file an amicus curiae brief
addressing Southwick’s amended opening brief, and he has done so.
4
motion to transfer pursuant to Section 396b, moves for reclassification
pursuant to Section 403.040, gives the plaintiff written notice of appearance,
or when an attorney gives notice of appearance for the defendant.” (§ 1014.)
This is not an exhaustive list of acts that constitute a general appearance; the
determinative issue is “ ‘whether [the] defendant takes a part in the
particular action which in some manner recognizes the authority of the court
to proceed.’ ” (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.)
Determining whether a defendant has made a general appearance is a “fact-
specific” inquiry. (Ibid.)
Here, the OAH’s only dealing with the trial court was the filing of a
“Notice of Non-Appearance,” in which it stated it was making a “special
appearance” to inform the court and parties that it would not participate in
the lawsuit. The OAH did not oppose Southwick’s petition on “other than on
jurisdictional grounds.” (Cf. Sunrise Financial, LLC v. Superior Court (2019)
32 Cal.App.5th 114, 125 [“opposing a motion other than on jurisdictional
grounds normally constitutes a general appearance”].) Nor did the OAH
otherwise recognize the trial court’s authority to proceed against it. To the
contrary, the OAH cited Oksner v. Superior Court, supra, 229 Cal.App.2d 672,
in which the appellate court found the trial court lacked jurisdiction to make
an order directed at an entity that was not a party to the action. (Id. at p.
690.) By citing Oksner, the OAH suggested the trial court in this case
likewise lacked jurisdiction to make an order with respect to the OAH.
On this record, we conclude OAH did not make a general appearance.
As a result, Southwick was not excused from the requirement that he serve
the petition in compliance with the Code of Civil Procedure.
Section 583.210, subdivision (a), requires a “summons and complaint
. . . be served upon a defendant within three years after the action is
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commenced against the defendant. For the purpose of this subdivision, an
action is commenced at the time the complaint is filed.”
In this case, Southwick commenced the action when he filed his
petition on June 7, 2017. After Southwick failed to establish that he properly
served any of the defendants, the trial court dismissed the petition on
September 16, 2020, more than three years after the action was commenced,
for failure to timely serve the petition. We find no error in the trial court’s
order.4
Southwick asserts the trial court acted “ultra vires.” “The term ‘ultra
vires,’ meaning ‘beyond the power,’ is used in varying senses. . . . [A]
governmental agency that acts outside of the scope of its statutory authority
acts ultra vires and the act is void.” (Lamere v. Superior Court (2005) 131
Cal.App.4th 1059, 1066, fn. 4.) Southwick has not shown the trial court acted
outside its authority.
Southwick’s remaining arguments do not challenge the basis for trial
court’s dismissal order and, therefore, do not show reversible error.5
4 Southwick also argues that the Attorney General’s filing of an amicus
curiae brief in this court constitutes a general appearance by defendants.
But an amicus curiae brief is, by definition, filed by a nonparty. (See
Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2023) ¶ 9:204 [“ ‘Amicus curiae’ (‘friend of the court’) briefs are written
by independent persons or entities who are not parties to the appeal”].)
Consequently, the Attorney General’s amicus curiae brief does not constitute
a general appearance by any defendant. Furthermore, we would not consider
an appellate brief filed after the trial court entered its dismissal order as
evidence of error where the trial court’s order was correct when made. (See
id., ¶ 8:176 [“matters that occurred after rendition of an appealed judgment
usually will be disregarded on the appeal”].)
5 In his response to the amicus brief, Southwick asks this court to take
judicial notice of an unpublished opinion from the Fourth District Court of
Appeal. However, “[t]o obtain judicial notice by a reviewing court under
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DISPOSITION
The trial court’s order dismissing the petition is affirmed.
Evidence Code section 459, a party must serve and file a separate motion
with a proposed order.” (Cal. Rules of Court, rule 8.252(a)(1), italics added.)
In any event, the general rule is that “an opinion of a California Court of
Appeal or superior court appellate division that is not certified for publication
or ordered published must not be cited or relied on by a court or a party in any
other action.” (Cal. Rules of Court, rule 8.1115(a), italics added.) Rule
8.1115(b) permits a party to rely on an unpublished opinion “(1) [w]hen the
opinion is relevant under the doctrines of law of the case, res judicata, or
collateral estoppel; or [¶] (2) [w]hen the opinion is relevant to a criminal or
disciplinary action because it states reasons for a decision affecting the same
defendant or respondent in another such action.” But Southwick has not
shown that any of these exceptions apply in this case. We therefore deny his
request to take judicial notice because the unpublished opinion is not
relevant to resolving this appeal. (See Sweeney v. California Regional Water
Quality Control Bd. (2021) 61 Cal.App.5th 1093, 1118, fn. 3 [denying request
for judicial notice of documents that “are unnecessary to resolve the issues
before us”].)
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Richman, J.
A161391, Southwick v. Contractors State License Board, et al.
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