Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS106974. Dzintra I. Janavs, Judge.
Lackie & Dammeier, Dieter C. Dammeier and Michael A. McGill for Plaintiff and Appellant.
Dennis Barlow, City Attorney, Carol Ann Humiston, Assistant City Attorney, Juli Scott, Deputy City Attorney, for Defendants and Respondents.
DOI TODD, Acting P. J.
Appellant Anthony Valento filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1085. Respondents City of Burbank, Burbank Civil Service Board and Mary J. Alvord demurred on the grounds that the petition was required to be brought pursuant to section 1094.5 and was barred by the 90-day statute of limitations in section 1094.6, subdivision (b). The trial court sustained the demurrer without leave to amend, and appellant filed a motion for new trial asserting that the statute of limitations was tolled due to respondents’ failure to provide the required mandatory notice of the limitations period pursuant to section 1094.6, subdivision (f). The trial court took the motion off calendar, believing that it had been divested of jurisdiction due to the filing of appellant’s notice of appeal. Appellant contends the trial court erred in refusing to consider and grant his new trial motion and, alternatively, that it erred in sustaining the demurrer without leave to amend. We agree that appellant should be given leave to amend and therefore reverse the judgment of dismissal.
All statutory references shall be to the Code of Civil Procedure, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s verified petition for writ of mandate alleged the following:
On August 4, 2005, appellant, a police officer with the City of Burbank Police Department, received a two-shift suspension. He appealed the suspension to respondent Burbank Civil Service Board (the Board), the administrative body charged with the duty to conduct an administrative appeal of the City’s disciplinary decisions. In such a proceeding, the Board conducts an evidentiary hearing at which the city employer has the burden of proof. The Board then issues a recommendation to the city manager, respondent Mary J. Alvord, who is charged with making a final administrative decision.
A hearing on appellant’s appeal was set to commence on January 12, 2006. The matter was continued to January 26, 2006 due to the illness of appellant’s attorney. Appellant’s attorney’s office wrote to the Board, informing it that he would not be well enough to attend the hearing on the continued date and asked that the remaining dates stay on calendar. The Board recommended to the city manager that the appeal be dismissed for failure to prosecute. On March 6, 2006, the city manager dismissed the appeal for failure to prosecute.
The First Writ Proceeding (Case No. BS103514)
On June 5, 2006, appellant filed a petition for writ of mandate under both sections 1085 and 1094.5. On August 11, 2006, he filed an identical amended petition attaching a verification. The amended petition claimed that the city manager’s decision was “a prejudicial abuse of discretion.” Appellant stated that he had exhausted the available administrative remedies and that he had “received a final administrative decision from the County [sic].” He prayed for a writ of mandate compelling respondents to set aside the decision dismissing his appeal and “to grant and continue with Petitioner’s administrative appeal.”
After serving appellant with discovery, respondents filed a motion to compel, which was set for hearing on November 15, 2006. On November 1, 2006, appellant dismissed the petition without prejudice.
The Second Writ Proceeding (Case No. BS106974)
On January 23, 2007, appellant filed another petition for writ of mandate. The allegations and prayer for relief were nearly identical to the first petition, except that the second petition was brought only under section 1085 and omitted the admission that appellant had “received a final administrative decision.” Respondents demurred to the petition on the grounds that the only basis for any alleged relief was section 1094.5, and the petition was time barred under the 90-day statute of limitations in section 1094.6, subdivision (b). Respondents also filed a request for judicial notice of the prior action. Appellant’s opposition to the demurrer was limited to the argument that section 1085 was the governing statute and that his petition was timely under that section. The trial court granted the request for judicial notice and sustained the demurrer without leave to amend. The court entered a judgment dismissing the petition on April 16, 2007.
On April 18, 2007, appellant filed a motion for reconsideration or, alternatively, a motion for new trial, arguing that even if his petition were required to be brought under section 1094.5 the statute of limitations was tolled because respondents never provided him with statutory notice under section 1094.6, subdivision (f) that his appeal must be brought within 90 days. Appellant attached to his motion a copy of the Board’s letter to his attorney stating that the hearing had been called on January 26, 2006, neither appellant nor anyone representing him appeared, the Board voted to recommend that the appeal be dismissed for failure to prosecute and a transcript of the proceeding would be forwarded to the city manager. Appellant also attached the city manager’s March 6, 2006 letter to him stating that she was upholding the Board’s recommendation.
Respondents filed an opposition directed only to the motion for reconsideration and not the new trial motion, arguing that appellant had waived the failure to provide notice by the judicial admission in his first petition that he had received the final administrative decision and that his second petition was barred by laches. Respondents included the declaration of the Deputy Chief of Police of the Burbank Police Department, who stated that he had made all appearances before the Board in the matter and that respondents would be prejudiced by having to “relitigate” the case because the underlying incident occurred on January 12, 2005 and the three percipient civilian witnesses were already told that their testimony would no longer be needed. Appellant filed a reply brief and objections to the declaration. The trial court requested further briefing on the issue of whether a motion for new trial was an appropriate means to challenge the sustaining of a demurrer, and continued the matter to June 13, 2007.
On May 31, 2007, appellant filed a notice of appeal from the judgment dismissing his petition. On June 5, 2007, appellant filed his supplemental brief and respondents refiled their opposition to the motion to reconsider, retitled as opposition to the motion for new trial. At the June 13 hearing, the trial court concluded that appellant’s appeal had divested the court of jurisdiction to hear the new trial motion and ordered the motion taken off calendar.
DISCUSSION
Appellant’s primary contention is that the trial court erred in refusing to rule on and grant his new trial motion. Appellant also appears to contend that the trial court erred in sustaining the demurrer without leave to amend.
There Was No Basis to Grant the New Trial Motion
Appellant filed a motion for new trial arguing that even if his petition were required to be brought under section 1094.5, instead of section 1085, it was still timely filed because respondents had failed to provide him with the required statutory notice under section 1094.6, subdivision (f). That section provides that “[i]n making a final decision . . . the local agency shall provide notice to the party that the time within which judicial review must be sought is governed by this section.” (§ 1094.6, subd. (f).) Section 1094.6, subdivision (b) provides that the petition “shall be filed not later than the 90th day following the date on which the decision becomes final.” The failure to provide the mandatory section 1094.6, subdivision (f) notice tolls the 90-day statute of limitations until such time as the notice is given. (Cummings v. City of Vernon (1989) 214 Cal.App.3d919, 922; El Dorado Palm Springs, Ltd. v. Rent Review Com. (1991) 230 Cal.App.3d335, 345; Lowe v. City of Commerce (1997) 59 Cal.App.4th 1075.)
Appellant is correct that the trial court retained jurisdiction to consider his motion for new trial despite his having filed a notice of appeal from the judgment dismissing the action. As our Supreme Court has recently stated: “Thus, the Legislature, through its enactments, has established that a motion for a new trial is collateral to the judgment and may proceed despite an appeal from the judgment. [Citations.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191.) “A motion for new trial is recognized to be a matter collateral to the judgment and the trial court retains jurisdiction to hear and determine a motion for new trial after an appeal has been taken from the judgment.” (Neff v. Ernst (1957) 48 Cal.2d 628, 634.) But despite the trial court’s erroneous refusal to consider the new trial motion, there is no basis for granting the motion.
Though not disputed by respondents, we note that a new trial motion is a proper procedure for challenging a judgment of dismissal after a demurrer is sustained. (Carney v. Simmonds (1957) 49 Cal.2d 84, 90.)
A new trial may be granted for a number of reasons, including irregularities in the proceedings of the court or any order of the court by which a party was prevented from having a fair trial (§ 657, subd. (1)); “[i]nsufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law” (§ 657, subd. (6)); or error in law (§ 657, subd. (7)). Appellant contends that each of these bases is applicable here. We disagree.
In his opposition to the demurrer, appellant did not raise the theory that the statute of limitations was tolled by the failure of respondents to provide the mandatory statutory notice under section 1094.6, subdivision (f), despite the opportunity to do so and to seek leave to amend his petition to allege the lack of notice. However, a motion for a new trial on the grounds that the decision is against the law may raise a new legal theory that was not asserted before the verdict or judgment. (Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15–16.) In Hoffman-Haag, after a court trial, the defendant moved for a new trial and to vacate the judgment, relying for the first time on a statute that had been enacted well before the trial and that effectively overruled case law upon which the trial court had based its decision. The appellate court held it was permissible for the defendant to rely on the statute in its post-trial motion, and affirmed the trial court’s order granting the motion. (Id. at pp. 15–16.) The court reasoned that because a party on appeal “may change the legal theory he relied upon at trial, so long as the new theory presents a question of law to be applied to undisputed facts in the record,” the trial court should have no less power to consider new legal theories on a motion for new trial when it reexamines its determination for legal error. (Id. at p. 15.)
In this case, the legal question of whether the statute of limitations was tolled could not be determined by “undisputed facts in the record.” Rather, the determination of this legal issue depended on the unresolved factual inquiry of whether respondents had in fact served appellant with the required statutory notice. The only evidence on this issue was brought forth in the new trial motion. (See Nippon Credit Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 500 [since evidence in support of appellants’ legal argument “was not brought forth until the motion for new trial, the argument can be rejected here, as it was in the trial court, as unsupported by the record”].) Because the legal question of whether the statute of limitations was tolled was not challenged at the demurrer stage and could not be resolved on undisputed facts in the record, appellant had no basis to raise the issue in his motion for a new trial.
Appellant Should be Given Leave to Amend His Petition
Appellant brought his petition for writ of mandate pursuant to section 1085. Respondents demurred to the petition on the grounds that it failed to state a cause of action under section 1085 and was barred by the statute of limitations set forth in section 1094.6, subdivision (b). We have little trouble concluding that appellant’s only ground for relief was pursuant to section 1094.5.
A traditional writ of mandate brought under section 1085 lies “to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station.” (§ 1085, subd. (a).) “Under this section, mandate will lie to compel performance of a clear, present, and usually ministerial duty in cases where a petitioner has a clear, present and beneficial right to performance of that duty.” (Morris v. Harper (2001) 94 Cal.App.4th 52, 58.) “The remedy may not be invoked to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular way.” (Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002.) “‘A ministerial act has been described as “an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act’s propriety or impropriety, when a given set of facts exists.” [Citation.]’” (Morris v. Harper, supra, at p. 62.)
By contrast, an administrative writ of mandate under section 1094.5 inquires “into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.” (§ 1094.5, subd. (a).) Usually, quasi-judicial acts are reviewed by administrative mandate, whereas quasi-legislative acts are reviewed by ordinary mandate. (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1785.) “The decisive question is whether the agency exercises an adjudicatory function in considering facts presented in an administrative hearing.” (Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 101.)
Appellant argues that no hearing was held and no evidence was taken and therefore the conditions necessary to obtaining review under section 1094.5 are not present. But the petition asked the trial court to compel the Board to exercise its discretion in a particular way, i.e., to reverse its determination that appellant’s appeal should be dismissed for failure to prosecute. Indeed, appellant stated in his petition that respondents’ decision was an “abuse of discretion.” This is not a situation in which respondents simply denied appellant’s appeal outright without offering him a hearing in which to present evidence. A hearing was scheduled before the Board and continued at the request of appellant’s attorney, who did not appear at the continued hearing. The Board then exercised its discretion in recommending to the city manager that the appeal be dismissed for failure to prosecute and the city manager exercised her discretion in adopting the recommendation. These were quasi-judicial acts, the review of which would be under section 1094.5.
The fact that the petition was brought under the wrong statute would have little practical effect were it not for the statute of limitations. A petition brought pursuant to section 1094.5 must be filed “not later than the 90th day following the date on which the decision becomes final.” (§ 1094.6, subd. (b).)
Respondents demurred to the petition on the additional ground that it was time-barred. The petition alleged that the Board issued a recommendation to the city manager, who made a final administrative decision, and based on the Board’s recommendation that appellant’s appeal be dismissed for failure to prosecute, the city manager dismissed the appeal for failure to prosecute on March 6, 2006. A fair inference from these allegations is that the city manager’s decision was final on March 6, 2006. The petition was not filed until nearly a year later.
Although the memorandum of points and authorities in support of the demurrer did not contain much discussion addressing the statute of limitations ground, a statement in a demurrer asserting that a particular cause of action is barred by the statute of limitations is sufficient to raise that issue. (Williams v. International Longshoremen’s & Warehousemen’s Union (1959) 172 Cal.App.2d 84, 87.) Where the face of the complaint shows that the claim is apparently barred, the plaintiff must plead facts showing suspension of the running of the statute. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 885, p. 344.) The petition did not do so, nor did appellant request leave to amend his petition to allege that he did not receive the required statutory section 1094.6, subdivision (f) notice. As we have noted above, the statute of limitations is tolled until such notice is given.
Generally, the failure to raise an issue or argument in the trial court waives the point on appeal. In Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412, the court noted that a persuasive argument can be made that a similar rule should govern where a party fails to ask the trial court for leave to amend. “A rule requiring a request to amend as a predicate for relief on appeal would conform to the sound general principle that matters not raised in the trial court are waived on appeal.” (Ibid.) But the court noted that the Legislature, in section 472c, subdivision (a), enacted the contrary rule, and we are bound by it. (Kolani v. Gluska, supra, at p. 412.) Thus, it is well established that in reviewing a judgment dismissing a complaint after the sustaining of a demurrer without leave to amend we must determine whether there is a reasonable probability the plaintiff could cure the defect by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) If an amendment can cure the defect, we must conclude the trial court abused its discretion in dismissing the complaint and we must reverse. (Ibid.) The plaintiff bears the burden of proving there is a reasonable probability of amendment and may make this showing for the first time on appeal. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43–44.)
Section 472c, subdivision (a) provides: “When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.”
In light of appellant’s failure to ask the trial court for leave to amend and his initial failure to argue in his briefs to us that he is allowed to seek amendment on appeal, we are reluctant to find that the trial court abused its discretion in denying appellant leave to amend. But because allowing appellant to amend his petition to state the proper governing section and that he did not receive section 1094.6, subdivision (f) notice would cure the statute of limitations defect, we determine that appellant should be given leave to amend. Respondents argue that, in any event, appellant’s petition is barred by laches. But respondents did not demur to the petition on this ground. Laches is an affirmative defense to be raised to the amended petition and decided at the appropriate time. It does not preclude the amendment as a matter of law.
In light of the inadequate briefing, we invited the parties to submit briefing on the issues of (1) whether a party can seek leave on appeal to amend a petition where no leave is requested in opposition to the demurrer, (2) whether appellant has, in fact, sought such leave on appeal, and (3) what impact an amended petition would have in this case. Appellant submitted a letter brief on May 7, 2008 in response to this invitation.
DISPOSITION
The judgment of dismissal is reversed. The matter is remanded and the trial court is directed to vacate the order sustaining without leave to amend the demurrer to the petition and to enter an order sustaining the demurrer with leave to amend. The parties to bear their costs on appeal.
We concur: ASHMANN-GERST, J., CHAVEZ, J.