GINNS v. SAVAGE

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District Court of Appeal, Second District, Division 2, California.

Grace Fisher GINNS, dba Atkins Properties, Petitioner and Appellant, v. W. A. SAVAGE, Real Estate Commissioner of the State of California, Defendant and Respondent.

Civ. 27122.

Decided: January 22, 1964

D. Brandon Bernstein, Beverly Hills, for appellant. Stanley Mosk, Atty. Gen., Lynn H. Johnson, Deputy Atty. Gen., for respondent.

Petitioner Grace Fisher Ginns appeals from the judgment dismissing the proceeding wherein she sought a writ of mandate under section 1094.5 of the Code of Civil Procedure after the entry of an order sustaining a general demurrer. Said order was based upon the conclusion that the action had not been filed within the time limit prescribed by section 11523 of the Government Code.1

Appellant is a real estate broker. On August 24, 1961, the real estate commissioner, after a hearing duly held, rendered a decision revoking appellant's plenary license as a real estate broker and placing her on a restricted license with a provision that she should suffer a 180-day period of suspension. This decision was ordered into effect as of September 14, 1963.

On September 8, 1961, the real estate commissioner issued an order nunc pro tunc correcting a clerical error in the decision. At appellant's request, the commissioner issued an order staying the effective date of the decision until October 2, 1961. On September 25, 1961, the commissioner disposed of appellant's petition for reconsideration of his decision by inserting a proviso into said decision to this effect: that if appellant should render an accounting to a Mr. and Mrs. McNeill, appellant could then obtain a restricted license. This proviso made no reference to appellant's service of the 180-day period of suspension or to any suspension at all. The order disposing of appellant's petition for reconsideration also provided that it would become effective on October 2, 1961.

In a letter dated October 31, 1961, appellant requested further reconsideration of the commissioner's decision, which request was denied on the ground that reconsideration once having been granted, the commissioner had no jurisdiction to grant further reconsideration. On November 2, 1961, appellant served upon the commissioner a petition for writ of mandate, and on November 3, 1961, appellant filed her petition for writ of mandate with the trial court.

On November 8, 1961, the commissioner issued an order in which he found that appellant had rendered an accounting and declared that appellant, upon application, could be granted a restricted license. The order provided, however, that appellant should serve a 180-day period of suspension. On November 21, 1961, the commissioner issued a nunc pro tunc order in which he stated that the 180-day suspension provision had been included in the order of November 8, 1961, by mistake and inadvertence. He directed that the 180-day suspension provision be deleted nunc pro tunc from the order of November 8, 1961.

Initially, appellant contends that the order of September 25, 1961, designating October 2, 1961, as its effective date, was not a final order. This contention is based upon the theory that since the order of September 25, 1961, provided that if appellant thereafter fulfilled certain conditions, she would be entitled to apply for and receive a restricted license. Obviously, this contention is without merit.

It is true that if appellant determined to avail herself of the conditional leniency promised her, subsequent hearings might be required in order to determine whether or not the conditions prerequisite thereto had been met. However, any such further proceedings, of course, would be purely incidental to the enforcement of the order itself and would in nowise detract from its finality. The order of November 8, 1961, corrected by order of November 21, 1961, establishing that appellant had fulfilled the required conditions, was such an incidental order. Clearly it did not operate to extend the time within which appellant might seek a review of the final order itself. Since appellant does not challenge the propriety of the determination made on November 8, 1961, we do not reach the question whether this subsequent incidental order might be separately reviewable in the instance of an erroneous determination.

Appellant next contends that the date of October 2, 1961, should not govern because she was entitled to seek a reconsideration of the order of September 25, 1961, on reconsideration. This contention also is unmeritorious. The rule is well established that when a party does not prevail upon the initial reconsideration authorized by the statute, he may not seek a second reconsideration of an administrative decision. (Crowe Glass Co. v. Industrial Acc. Com., 84 Cal.App. 287, 293, 258 P. 130.) This is not an instance where new and further evidence was introduced upon the initial rehearing. (Goodrich v. Industrial Acc. Com., 22 Cal.2d 604, 611–612, 140 P.2d 405.) In addition, the commission would not have had the power to order even an initial reconsideration after the date it had set as the effective date of its decision, i. e., October 2, 1961. (Government Code, § 11521.)

By means of affidavits filed in support of her amended petition, appellant averred that the late filing of her original petition was due to the false statements made to her by an attorney for the commissioner respecting the final date upon which her petition might be filed. It is now contended that by reason of these alleged statements, she was misled and that respondent should be estopped from asserting the bar created by Government Code, section 11523.

However, it is clear that, unlike statutes of limitation that are personal to a defendant, statutes upon which the very jurisdiction of the court to act are founded may not be waived by the parties, nor may jurisdiction be conferred by consent or estoppel. (Cf. People v. Black, 55 Cal.2d 275, 277, 10 Cal.Rptr. 459, 358 P.2d 915; Tabor v. Superior Court, 28 Cal.2d 505, 507–508, 170 P.2d 667.) Section 11523 of the Government Code, supra, is such a statute. ‘Compliance with its time requirements must be met. It is not to be supposed that they are merely directory.’ (Hollywood Turf Club v. Daugherty, 36 Cal.2d 352, 356, 224 P.2d 359, 362; Crow v. City of Lynwood, 169 Cal.App.2d 461, 462, 466–467, 337 P.2d 919; also cf. Moran v. State Board of Medical Examiners, 32 Cal.2d 301, 303–307, 196 P.2d 20.)

Appellant's contention that the limiting statute has deprived her of her right of review in an unconstitutional manner is without merit. ‘A constitutional right is always subject to reasonable statutory limitations as to the time within which to enforce it, if the constitution itself does not provide otherwise. The power of the legislature to provide reasonable periods of limitation, therefore, is unquestioned, and the fixing of time limits within which particular rights must be asserted is a matter of legislative policy the nullification of which is not a judicial prerogative.’ (31 Cal.Jur.2d, Limitation of Actions, § 4, p. 430.)

Having determined its lack of jurisdiction, the court was not required to pass upon the merits of the matter prior to its dismissal. This result is not precluded by the classification of the decision of the commission as a void one where it is clear that appellant's contention is founded solely upon the fact that the decision referred to a violation of one section of the Business and Professions Code, among others, that had not been set forth in the administrative accusation as originally filed. Respondent indicates that the charge of this particular violation was added by an oral amendment made at the time of the administrative hearing, but, of course, on the record now before us we may not determine this question. However, even absent such an amendment, the decision would merely be erroneous in part and not void in the sense that it would allow appellant to avoid seeking review within the statutory period.

The judgment is affirmed.

FOOTNOTES

1.  Section 11523 provides in part: ‘Judicial review may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure. Except as otherwise provided in this section any such petition shall be filed within 30 days after the last day on which reconsideration can be ordered.’

HERNDON, Justice.

FOX, P. J., and ROTH, J., concur.