Judge: Mary H. Strobel, Case: 22STCP01539, Date: 2022-09-15 Tentative Ruling

Case Number: 22STCP01539    Hearing Date: September 15, 2022    Dept: 82

             Real Party in Interest Adam Woods (“Real Party”) generally demurs to the petition for writ of mandate filed by Petitioner County of Los Angeles Department of Internal Services (“Petitioner” or “County”) on the grounds that the petition was not filed within the 90-day limitations period.

Judicial Notice

Real Party states that the demurrer is based on a “Request for Judicial Notice concurrently filed.”  (Notice 1.)  However, the court has not received a request for judicial notice from Real Party, either attached to the demurrer or filed “concurrently.” 

Real Party’s memorandum of points and authorities refers to Exhibits A, B, and C of a request for judicial notice.  Exhibits A and B – an Order of the Civil Service Commission dated January 27, 2022, and a notice of Final Commission Action of that same date -- are attached to the memorandum.  (Dem. 4.)  In opposition, Petitioner refers to and attaches to its brief the same Exhibits A and B.  (Oppo. 2.)  In these circumstances, the court judicially notices an Order of the Civil Service Commission dated January 27, 2022, and a notice of Final Commission Action of that same date submitted as Exhibits A and B of the demurrer and opposition.  (Evid. Code § 452(c), (h).)

Exhibit B to the demurrer also appears to include an email dated May 5, 2022, from Luz Delgado of the Commission.  Real Party has not submitted a request for judicial notice of this email, sufficient information about the email, or sufficient notice of the request for judicial notice.  In opposition, Petitioner has not submitted or relied on this part of Real Party’s Exhibit B.  Accordingly, the court does not judicially notice the second page of Exhibit B to the demurrer.  (See Evid. Code § 453(a), (b).) 

            Real Party represents that the “applicable Civil Service rule” is attached as Exhibit C.  (Dem. 5.)  A Civil Service rule is not attached as Exhibit C to the demurrer.  While unclear, Exhibit C appears to be an “excerpt” from the CCP and also an “Excerpt from Official minutes from December 8, 2021, published on the Civil Service Website on December 21, 2021.”  Real Party has not provided the court sufficient information to judicially notice Exhibit C.  Nor has Real Party given Petitioner sufficient notice of the request for judicial notice of Exhibit C.  (Evid. Code § 453(a), (b).)  Petitioner does not submit or rely upon the same Exhibit C in opposition.  Accordingly, the court does not judicially Exhibit C to the demurrer. 

Background and Procedural History

             On January 27, 2022, Respondent County Civil Service Commission (“Commission”) issued a notice titled “Final Commission Action” in connection with a petition of Real Party for a hearing on his discharge, effective September 30, 2019, from the position of Electronics Communications Technician Supervisor, Internal Services Department, Case No. 19-269.  (RJN Exh. B.)  The notice states:

The Civil Service Commission, at its meeting held on December 8, 2021, approved findings in the above-entitled case. The department’s objections were overruled.

Since a copy of these findings have already been provided to all the parties, we have enclosed a copy of the signed formal order of the Commission for your records.

Anyone desiring to seek review of this decision by the Superior Court may do so under Section 1085 or 1094.6 of the Code of Civil Procedure as appropriate. An action under Section 1094.6 can only be commenced within 90 days of the decision.

(RJN Exh. B.)

The court also judicially notices the Order of the Civil Service Commission dated January 27, 2022.  The Order states: “On December 8, 2021, the Civil Service Commission of the County of Los Angeles overruled the department’s objections. The Commission adopted as its final decision the findings and recommendation of the Hearing Officer, Dale Nowicki, to reduce the discharge to a five (5) day suspension. The Commission also recommends the department provide additional sensitivity training to petitioner.”

On April 27, 2022, Petitioner filed a petition for writ of administrative mandate challenging a decision of the County Civil Service Commission (“Commission”) to reduce a proposed discharge of Real Party to a five-day suspension. 

            On June 13, 2022, Real Party filed this demurrer and meet and confer declaration.  The court has received Petitioner’s opposition and Real Party’s reply.

Analysis

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  The demurrer admits all material facts properly pleaded.  (CCP 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.”  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Real Party contends that the petition is barred by the 90-day statute of limitations in CCP section 1094.6. “‘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.) 

Code of Civil Procedure Section 1094.6 subdivision (a) provides that “Judicial review of any decision of a local agency, … as the term local agency is defined in Section 54951 of the Government Code[1] . . . 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.” 

Section 1094.6(b) states, in pertinent part: “Any such petition shall be filed not later than the 90th day following the date on which the decision becomes final. If there is no provision for reconsideration of the decision, or for a written decision or written findings supporting the decision, in any applicable provision of any statute, charter, or rule, for the purposes of this section, the decision is final on the date it is announced…. If there is a provision for reconsideration, the decision is final for purposes of this section upon the expiration of the period during which such reconsideration can be sought; provided, that if reconsideration is sought pursuant to any such provision the decision is final for the purposes of this section on the date that reconsideration is rejected. If there is a provision for a written decision or written findings, the decision is final for purposes of this section upon the date it is mailed by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the party seeking the writ….”

Here, Real Party contends that the 90-day limitations period started to run on December 8, 2021, the date Commission overruled Petitioner’s objections and adopted the decision to reduce the discharge to a five-day suspension.  The petition itself is silent as to when Commission issued the final administrative decision. 

Real Party contends that “the petition, and the judicially noticeable written order from the Commission, establish that the Commission announced its final decision on December 8, 2021.”  (Dem. 5 [bold italics added].)  Real Party seems to rely on the second sentence of section 1094.6(b), which states: “If there is no provision for reconsideration of the decision, or for a written decision or written findings supporting the decision, in any applicable provision of any statute, charter, or rule, for the purposes of this section, the decision is final on the date it is announced….”  However, Real Party has not requested judicial notice of, nor submitted any relevant judicially noticeable materials, showing that there is no provision for reconsideration or requirement of a written decision or written findings in Commission’s rules or any other relevant statute or charter.  If there is an applicable provision for reconsideration or requirement of a written decision or written findings, the decision may not be final on the date orally announced.  Accordingly, in this demurrer, Real Party fails to show “clearly and affirmatively” that the decision was final on December 8, 2021, and the petition is “necessarily barred.” (Lockley, supra, 91 Cal.App.4th at 881.) 

In the demurrer, Real Party has not argued that the petition was untimely filed if the decision was final on January 27, 2022, the date of the Order of the Civil Service Commission. 

Because Real Party has not shown, for purposes of this demurrer, that the decision was final on December 8, 2021, the court does not address the parties’ remaining contentions. 

Conclusion

The demurrer is OVERRULED.