Thursday, July 2, 2020
Petition for Writ of Mandate Filed More Than 90 Days After Finality of Decision Not to Remove Him From List of Child Abusers Must Be Heard, Opinion Says
By a MetNews Staff Writer
The Court of Appeal for this district has reversed a decision by a Los Angeles Superior Court judge that a petition for a writ of mandate was untimely because it was not filed, as required by statute, within 90 days of an administrative decision becoming final, with the appeals court saying that “confusion” was created by the notice of the decision saying both that the decision “is final,” and that it would become final 90 days after mailing.
It was undisputed that a decision of the Los Angeles County Department of Children and Family Services denying a request by a Norwalk man, Jay Alford, to have his name removed from the Child Abuse Central Index was mailed on Oct. 13, 2015; that he received a copy by mail seven days later (and had received an emailed copy on Oct. 14); and that his petition was filed on Feb. 17, 2016.
Code of Civil Procedure §1094.6 provides that an administrative decision “shall be filed not later than the 90th day following the date on which the decision becomes final” and that “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.”
In finding Alford’s petition to be time-barred, Judge Lori Ann Fournier reasoned:
“Pursuant to statute, the decision became final on October 13, 2015. Petitioner did not file his Petition for Writ of Administrative Mandamus until February 17, 2016. Consequently, Petitioner missed the deadline to file the petition for a writ of mandate by over a month….”
Reversal came in an opinion by Court of Appeal Acting Presiding Justice Elizabeth A. Grimes of Div. Eight, who wrote:
“Here, the Department’s notice created considerable doubt about when its decision became final. The Department concedes its notice confused plaintiff but contends plaintiffs confusion over the language in the notice—the sentence stating that ‘[t]he decision will become final 90 days from the date it is placed in the mail’—could not change plaintiffs obligation to follow the time limits in the statute. The Department asserts that the just- quoted sentence, when read together with the rest of the notice, could only be reasonably understood to mean that plaintiff could not file a writ if he waited more than 90 days from the date of the mailing of the decision.
“We disagree. The notice could be reasonably understood the way the Department construes it, but it also could be reasonably understood to mean the decision was not final until 90 days after it was placed in the mail. The notice tells plaintiff that section 1094.6 ‘requires you file any petition...no later than the 90th day on which the decision is deemed final,’ and that sentence is followed immediately by the sentence telling plaintiff the decision ‘will become final 90 days from the date it is placed in the mail.’ We are not surprised that plaintiff misunderstood these words, and we do not think it is permissible to fault plaintiff for the Department’s lack of clarity.”
Discerning a possibility that Alford could have construed the language to mean that the decision would become final 90 days from mailing—that is, on Jan. 14, 2017—and he would then have 90 days within which to file a petition (until April 14, 2017), Grimes said:
“[U]nder that scenario, his petition would have been timely. Given the statutory goal of eliminating any doubt as to the date a decision is final…, we cannot countenance the Department’s creation of ambiguity on that very point. The Department’s notice did not comply with the statute, and so the statute of limitation did not bar plaintiff’s petition.”
The case is Alford v. County of Los Angeles, B293393.
Avi Burkwitz and Craig G. Marinho of the Burbank law firm of Peterson Bradford Burkwitz acted for the county. Alford represented himself.
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