Judge Mitchell L. Beckloff, Case 22STCP02986 2023-03-29 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP02986, Date: 2023-03-29 Tentative Ruling

In his Amended Writ of Mandate for Income Loss (the Petition), Petitioner, Kevin Bautista, alleges he “was a victim of a crime that caused him to be nearly paralyzed for life and lost 2 years of work after his incident in February 23, 2022.” (Pet., 1:20-22.) Sometime thereafter, Respondent, California Victim Compensation Board, “approved of [] reimbursement for victim compensation with the benefits of, relocation, security surveillance, income loss, and mental health fees but was not awarded income loss . . . .” Petitioner challenges Respondent decision to deny him income loss benefits.

Respondent demurs to the Petition. Petitioner did not file an opposition.[1] Notice is proper.

The court takes judicial notice of Respondent’s answer. (Evid. Code § 452, subd. (d).) The court does not take judicial notice, however, of the factual matters contained therein.

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. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.)

A demurrer may be sustained without leave to amend when there is no reasonable possibility the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Indeed, where the facts are not in dispute and the nature of the plaintiff's claim is clear, but no liability exists under substantive law and no amendment would change the result, sustaining a demurrer without leave to amend is proper. (City of Ceres v. City of Modesto (1969) 274 Cal. App. 2d 545, 554.) The burden is on a petitioner to show how the petition might be amended so as to cure the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

First, Respondent asserts Petitioner’s claim is barred by the 60-day statute of limitations set forth in Government Code 13960. Respondent argues judicial review of its final decision must be made within “60 calendar days of the mailing of the board’s decision on the application for compensation.” (Gov. Code § 13960, subd. (a)(1).)

Respondent advises it mailed its final decision denying Petitioner’s claim for income loss on July 21, 2021. Accordingly, Petitioner had to file any challenge to that decision within 60 days or by September 19, 2021. Petitioner did not file the Petition until almost one year later on August 9, 2022; therefore, the Petition is time barred.

The untimely nature of the claim cannot be demonstrated by the face of the pleadings.

The facts as alleged in the Petition (which the court must accept as true for purposes of demurrer), however, merely establish Respondent’s claim it mailed its final decision (the denial) to Petitioner on July 21, 2021. (See Pet., 3:8-9, 3:12-14, 3:25-4:2.) In fact, Petitioner alleges Respondent “stated that they mailed letters of deadlines which he never received.” (Pet., 2:1-2 and attachment to Petition [“no letter was received by Plaintiff.”)

Respondent asserts Petitioner’s allegations are of no consequence. Respondent argues a letter is presumed to have been received five days after the date it was mailed if the envelope is correctly addressed and postage prepaid. (Cal. Code Regs., tit. 2, § 616.3, subd. (f).)

Facts concerning Respondent’s service of its final decision are not contained in the Petition. The court cannot rely on facts alleged in Respondent’s answer to supplement facts alleged in the Petition.

[While it is not entirely clear to the court, it appears Petitioner did not receive the final decision from Respondent by mail; Petitioner may have learned of the decision through Respondent’s website. Petitioner may be alleging he was hospitalized just before Respondent may have mailed its final decision, but he never received it. Petitioner may also have moved from his rental apartment further complicating his mail delivery. In any event, the allegations about Respondent’s service of the final decision are not before the court in the Petition.]

Petitioner’s claim, however, fails to fall within Code of Civil Procedure section 1094.5. That is, Petitioner has not alleged Respondent’s decision to disallow income loss benefits was an error because Respondent lacked jurisdiction over the matter, denied Petitioner a fair trial or prejudicially abused its discretion based on the evidence, findings and/or decision. Petitioner’s failure to allege how Respondent erred means Petitioner has not stated a claim for administrative mandamus.

[1] It appears Petitioner amended his allegations after a meet and confer with Respondent’s counsel. The Petition addresses some of the claims made by Respondent about the Petition’s deficiencies.