Judge: Curtis A. Kin, Case: 22STCP02336, Date: 2024-03-14 Tentative Ruling

Case Number: 22STCP02336    Hearing Date: March 14, 2024    Dept: 82

DEMURRER TO AMENDED VERIFIED PETITION

Date:               3/14/24 (1:30 PM)

Case:                           Gail Wiggan v. Los Angeles County Office of Education et al. (22STCP02336)

TENTATIVE RULING:

Respondents Los Angeles County Office of Education and Los Angeles County Office of Education’s Personnel Commission’s UNOPPOSED Demurrer to Amended Verified Petition for Peremptory Writ of Mandate, filed on March 3, 2023 (“Third Amended Petition” or “TAP”), is SUSTAINED.

“‘A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily[,] barred.’ [Citations.] It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

Petitioner Gail Wiggan brings this case under Code of Civil Procedure (“CCP”) section 1094.5 to obtain review of the Los Angeles County Office of Education Personnel Commission’s (“Personnel Commission”) decision to accepting Hearing Officer Walter F. Daugherty’s recommendation to dismiss petitioner. (TAP at p. 4, ¶¶ 9, 10, Exs. D, E; Prayer for Relief at p. 5, ¶ 1.)  CCP section 1094.6(a) provides that “[j]udicial review of any decision of a local agency…as the term local agency is defined in Section 54951 of the Government Code… may be had pursuant to Section 1094.5 of this code only if the petition for writ of mandate…is filed within the time limits specified in this section.” Government Code § 54951 defines “local agency” to include any board, commission, or agency of a county. As agencies or commissions of the County of Los Angeles, respondents Los Angeles County Office of Education and Personnel Commission qualify as local agencies under CCP section 1094.6(a).

Under CCP section 1094.6(b): “Any such petition [seeking judicial review of any decision of a local agency] shall be filed not later than the 90th day following the date on which the decision becomes final.” “Section 1094.6, subdivision (b), provides that where, as here, the agency decision is in writing, any petition challenging the agency decision must be filed within 90 days of the decision becoming final. The decision becomes final on the date the decision is served by first class mail, postage prepaid, including a copy of the affidavit of mailing.” (Alford v. County of Los Angeles (2020) 51 Cal.App.5th 742, 745.) Service by mail does not extend the 90-day period for filing a petition for writ of mandate under CCP section 1094.6. (Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 576, 578-80.)

If the petitioner files a request for the administrative record with 10 days after the date the decision becomes final, the time to file a petition pursuant to CCP section 1094.5 is extended by 30 days of personal delivery or mailing of the administrative record. (CCP § 1094.6(d).)

Here, the Personnel Commission mailed the final decision accepting the Hearing Officer’s recommendation to affirm petitioner’s dismissal on June 24, 2019. (TAP at Ex. E, p. 140.) The petition does not contain any filed request for administrative record. Accordingly, petitioner had 90 days from June 24, 2019, i.e., until September 22, 2019, to file the writ petition. Petitioner filed the initial petition on June 21, 2022, almost three years later. Accordingly, as alleged, the Third Amended Petition filed on March 3, 2023 is time-barred.

Petitioner has not opposed the demurrer and has not raised any exception to the 90-day limitations period in CCP section 1094.6(b) or asserted any reason why the deadline to have filed her writ petition was not September 22, 2019. Under a section labeled “Statute of Limitations” in the Third Amended Petition, petitioner alleges that she would like the Court to “consider several items,” including “Verification filed in September2019 by lawyers assistant,” “Denied submission by court on June 20,2019 (4 year Statute of Limitations),” “Tolling statute of limitations due to illness,” and “Court holds that statute of limitations can not deprive a person of property.” (TAP at 2:22-3:2.) On their face, these quoted allegations do not provide any authority as to how the 90-day limitations period is exempted or extended.

The demurrer to the Third Amended Petition is SUSTAINED. Before granting leave to amend, the Court will hear from petitioner as to how the Third Amended Petition can be amended to address the defect set forth above.