Judge Stephen I. Goorvitch, Case Number: 23STCP04413, Date: 2024-04-19 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP04413, Date: 2024-04-19 Tentative Ruling

Petitioner José Martinez (“Petitioner”) filed this petition for writ of mandate against the Hacienda La Puente Unified School District (“Respondent” or the “District”) seeking the following: (1) A petition for a writ of mandate to compel the District to comply with the Personnel Commission’s order to reinstate Petitioner and award back pay, per Code of Civil Procedure section 1085(a); and (2) A petition for a writ of mandate to compel the Personnel Commission to amend its order to include back pay for a period of unpaid leave, per Code of Civil Procedure section 1094.5. Now, Respondent demurs, arguing that the petition is barred by the 90-day statute of limitations set forth in Code of Civil Procedure section 1094.6. Petitioner opposes the demurrer, which is overruled.

Petitioner was employed by Respondent, a school district, as a campus security officer from 2012 to May 5, 2022, when Petitioner was terminated after he failed to comply with Respondent’s Covid-19 vaccine mandate policy. (Verified Petition for Writ of Mandate (“Pet.”) ¶ 3.) Petitioner alleges that Respondent terminated his employment on the basis that Petitioner’s request for a religious exemption from the mandate would impose an undue hardship. (Id. ¶ 4.) Petitioner appealed the termination to the Personnel Commission (“Commission”), which appointed a hearing officer to preside over an evidentiary hearing. (Id. ¶ 6.) On August 7, 2023, the Commission adopted the recommendations of the hearing officer, granted Petitioner’s appeal, and ordered Respondent to reinstate Petitioner with full back pay and benefits from the date of his termination. (Id. ¶ 7.) Petitioner alleges that Respondent has failed to comply with the Commission’s order. (Id. ¶ 8.)

In his first cause of action, Petitioner seeks a writ of ordinary mandate pursuant to Code of Civil Procedure section 1085 directing Respondent to comply with the Commission’s order to reinstate him. (Id. ¶¶ 8-12.) In his second cause of action, Petitioner seeks a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5 directing Commission to award Petitioner backpay from October 15, 2021, when Petitioner was placed on involuntary unpaid leave, rather than from the date of his termination. (Id. ¶¶ 23-24.)

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 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.)

In his first cause of action, Petitioner seeks to compel Respondent to comply with the Personnel Commission’s order to reinstate Petitioner and award back pay, per Code of Civil Procedure section 1085(a). “‘The statute of limitations applicable to a writ of mandamus under [section] 1085 depends upon the nature of the obligation sought to be enforced…. The code provisions authorizing this action are silent as to the time within which it must be filed. [Citation.] Accordingly, the courts have developed the rule that the question is to be resolved not by the remedy prayed for but by the nature of the underlying right or obligation that the action seeks to enforce.’” (Kao v. Department of Corrections & Rehabilitation (2016) 244 Cal.App.4th 1326, 1332.)

In this case, Petitioner alleges Respondent’s Board of Education has a ministerial duty under Education Code section 45307 and Commission Rule 18.4.27 to comply with the Commission’s order to reinstate him. (Pet. ¶¶ 8-10.) Thus, Petitioner seeks to compel Respondent to comply with a statutory obligation. “The limitation period for an action based upon a liability created by statute, other than a penalty or forfeiture, is three years.” (Kao, supra, 244 Cal.App.4th at 1332; see Code Civ. Proc. § 338(a).) Commission adopted its decision on August 7, 2023. (Pet. ¶ 7.) Petitioner filed the petition on December 6, 2023. Accordingly, the first cause of action is timely.

Respondent argues that the 90-day statute of limitations in Code of Civil Procedure section 1094.6 applies to a writ proceeding under section 1085. The cases cited by Respondent do not support its argument. One case—Garner v. City of Riverside (1985) 170 Cal.App.3d 510, 513—involved a petition for a writ of administrative mandate under section 1094.5. The other two cases—Green v. Obledo (1981) 29 Cal.3d 126, 141, fn. 10 and Ragan v. City of Hawthorne (1989) 212 Cal.App.3d 1361, 1367—acknowledged that petitions under section 1085 to enforce a statutory obligation are subject to a three-year statute of limitations, per Code of Civil Procedure section 338(a).

In Respondent’s reply brief, Respondent argues: “[Section] 1094.5 is the sole remedy where a party seeks to inquire into a final administrative order from a local agency.” (Reply 1:25-26.) In support of this argument—which was not raised in the demurrer—Respondent cites Eureka Teachers Assn. v. Board of Education (1988) 199 Cal.App.3d 353, 361, which states that “[t]he administrative mandate procedure of section 1094.5 is to be used in all writ cases challenging the validity of any final administrative order or decision made as a result of a proceeding in which by law (1) a hearing is required, (2) evidence is required to be taken, and (3) discretion in the determination of facts is vested in the inferior board.” In fact, the first cause of action does not challenge the validity of the Personnel Commission’s final administrative order but rather seeks to compel Respondent to comply with the order. Therefore, the administrative mandate procedure and limitations period of Code of Civil Procedure section 1094.6 do not apply to the first cause of action.

The court has considered Respondent’s remaining arguments, and none is persuasive. Based upon the foregoing, the court overrules the demurrer to the first cause of action in the petition for writ of mandate.

In his second cause of action, Petitioner seeks review of the Personnel Commission’s decision, arguing that the Personnel Commission abused its discretion when it awarded Petitioner backpay from the date of his termination (May 5, 2022) rather than the date when he was placed on involuntary unpaid leave (October 5, 2021). This cause of action seeks a writ for administrative mandate under Code of Civil Procedure section 1094.5. Respondent argues that this cause of action is untimely under the 90-day statute of limitations period within section 1094.6. The demurrer is overruled for several independent reasons.

First, Respondent does not demonstrate that section 1094.6 applies to this case. That section sets a 90-day limitations period for “[j]udicial review of any decision of a local agency, other than [a] school district . . . .” (Code Civ. Proc. § 1094.6.) Respondent is a school district. Because Respondent does not address this issue in the demurrer, it has not demonstrated that it is entitled to relief.

Second, based upon this record, the court cannot determine whether the second cause of action is untimely. Section 1094.6(b) governs when the 90-day statute of begins to run: “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.”[1] The Court of Appeal has held that section 1094.6(b) “require[s] that, when the local agency mails its written decision to the party seeking the writ, such mailing must include a written statement verified by oath or affirmation, or a written statement attesting to the date that the decision was mailed to the party by first class mail, postage prepaid.” (Donnellan v. City of Novato (2001) 86 Cal.App.4th 1097, 1106.) Unless this verified statement is included with the mailed decision, the 90-day limitations period does not begin to run. (Ibid.; see also Rutter, Cal. Prac. Guide, Administrative Law, ¶¶ 16:234-16:236.) The statute of limitations is a defense upon which Respondent has the burden of proof. (See Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 940, fn. 4.) Accordingly, Respondent has the burden to prove compliance with the notice provisions of section 1094.6. Respondent has failed to do so.

Third, there is equitable tolling of the statute of limitations under these circumstances. Petitioner filed a request for a fee waiver on November 3, 2023, and the court (Beckloff, J.) denied the request without prejudice. When a fee waiver is denied, “the applicant shall pay the court fees and costs that ordinarily would be charged . . . within 10 days after the clerk gives notice of the denial . . . .” (Gov. Code § 68634(g).) “If the applicant does not pay on time, the clerk shall void the papers that were filed without payment of the court fees and costs.” (Ibid.) In this case, the clerk did not properly serve the order because he did not serve Petitioner’s counsel (or even Petitioner directly). Instead, he served the “electronic service provider that submitted the transaction.” Petitioner’s counsel did not receive notice of the rejection. (See Declaration of Conrad Herring, ¶ 4.) The case was voided on November 28, 2023, and that order was served on Petitioner’s counsel. (See Clerk’s Notice of Voiding of Filing, dated November 28, 2023.) Petitioner’s counsel attempted to file motions to reinstate the case. (Declaration of Conrad Herring, ¶ 6.) Petitioner filed the instant case on December 6, 2023, and received a fee waiver on December 7, 2023. Because this occurred within 10 days of notice of the fee rejection, the instant petition would be timely.

2. The court dismisses Respondent Hacienda La Puente Unified School District Personnel Commission without prejudice and without objection from the parties.

5. Respondent’s counsel shall provide notice and file proof of service with the court.

[1] Section 1094.6(g) also states: “This section shall prevail over any conflicting provision in any otherwise applicable law relating to the subject matter, unless the conflicting provision is a state or federal law which provides a shorter statute of limitations, in which case the shorter statute of limitations shall apply.”