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Purcell Group2/19/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Purcell Group, Inc. appeals a judgment dismissing its first amended petition for writ of administrative mandate after the court sustained without leave to amend the demurrer of defendant Insurance Commissioner of the State of California (Commissioner).
Purcell contends the court erred in determining its first amended petition was time-barred. Concluding the filing of Purcell's first amended petition related back to the date its original petition was filed, we reverse the judgment of dismissal.
I. INTRODUCTION
As an elected official, the Commissioner controls the state's Department of Insurance (Department). (Ins. Code, §§ 12900, 12906.) In an administrative proceeding within the Department, Purcell challenged a decision of the Workers' Compensation Insurance Rating Bureau of California (Rating Bureau). In October 1999, after the Department's administrative law judge (ALJ) issued a proposed decision affirming the Rating Bureau's decision, the Commissioner adopted the ALJ's decision as his own.
In November 1999 Purcell filed a petition in the superior court for a writ of administrative mandate against the Department's Administrative Law Bureau (ALB). (Code Civ. Proc., § 1094.5.) Although alleging it sought relief from the Department's ALB's October 1999 decision affirming the Rating Bureau's decision, Purcell's petition also attached and incorporated by reference the Commissioner's October 1999 order adopting the ALJ's decision as his own. However, Purcell's original petition did not specifically identify the Commissioner as a defendant.
In April 2000, in demurring to Purcell's petition, the Department's ALB argued there was a defect or misjoinder of parties because although the Commissioner was an indispensable party as the issuer of the final administrative order in Purcell's administrative challenge to the Rating Bureau's decision, Purcell had assertedly not joined the Commissioner as a party to this writ proceeding.
In May 2000, noting that Purcell conceded the Commissioner was the proper defendant in this writ proceeding, the superior court entered an order sustaining the Department's ALB's demurrer to Purcell's original petition with 10 days leave to amend to "properly name and serve the Commissioner." The order also required that Purcell's amended petition set forth facts demonstrating it was not time-barred by Government Code sections 11521 and 11523.
In June 2000 Purcell filed a first amended petition for writ of mandate against the Commissioner. Purcell's first amended petition alleged its original petition had inadvertently named the Department's ALB as the defendant due to clerical error. Purcell's first amended petition also alleged: The Commissioner was the alter ego of the Department's ALB; the Department's ALB was defined by regulation as the office within the Commissioner's office designated for receipt of certain pleadings (Cal. Code Regs., tit. 10, § 2651.1); and the Commissioner received actual notice of this writ proceeding when the Department's ALB was served with Purcell's original petition.
In July 2000 the Commissioner demurred to Purcell's first amended petition as barred by the time limitations set forth in Government Code sections 11521 and 11523.
In September 2000 after hearing, the superior court sust
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