Case Number: BS146716    Hearing Date: September 02, 2014    Dept: 82

Debra Ann McLaurin dba McLaurin Family Child Care, dba McLaurin Foster Family Home
v.
California State Department of Social Services.

Tentative Decision on Motion for Judgment on the Pleadings: GRANT without leave to amend

Respondent Department of Social Services (“Department”) moves for Judgment on the Pleadings on the grounds that Petitioner’s petition for writ of mandate is (1) time-barred under Government Code § 11523 and (2) not verified as required by Code of Civil Procedure (“CCP”) § 1086 and California Rules of Court (“CRC”) Rule 8.486(a)(4).

Petitioner Debra McLaurin (“Petitioner”) (in pro per) has timely filed an opposition, but such opposition was apparently not served on the Department or otherwise received by the Department. No proof of service is attached to the opposition.

Nevertheless, after reading and considering the Petition, the moving papers, and the opposition, the Court renders the following decision:

Request for Judicial Notice

The Court grants the Department’s Request for Judicial Notice. Pursuant to Evidence Code § 452(c), the Court may take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” “Official acts include records, reports and orders of administrative agencies.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.) Accordingly, the Court may take judicial notice of the Final Decision and Order and Declaration of Service filed in In the Matter of Debra McLaurin, Office of Administrative Hearings, Case No. 2012030105.

The Court grants Petitioner’s Request for Judicial Notice, but not with regards to the truth of the contents of the letter. Pursuant to Evidence Code § 452(h), the Court may take judicial notice of “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” In any event, Petitioner’s request for judicial notice (a letter from her former counsel, dated December 2, 2013), is attached to the Amended Petition.

Statement of the Case

Petitioner has had a daycare license since 2004 and a foster care license since 2008. (See “Final Decision and Order,” Respondent’s RJN, Exhibit A.) On February 4, 2013, the Administrative Law Judge submitted a Proposed Decision to revoke Petitioner’s family child care license and place Petitioner and her foster family license on probation for three years, on the grounds that Petitioner’s conduct was inimical to the health, morals, welfare, or safety of the children receiving services from Petitioner. (See “Proposed Decision.”)

The Department rejected the Proposed Decision, ordered and received the transcript of the hearing, and commenced proceedings to decide the matter upon the record. (“Final Decision and Order,” Respondent’s RJN, Exhibit A.) The Department solicited argument from the parties concerning the Proposed Decision and received timely written argument from both parties’ counsels. (Id.) After considering the full record of the proceedings, the Department issues its Final Decision and Order on October 18, 2013, revoking Petitioner’s foster family home license and family child care license. (Id.)

On January 21, 2014, Petitioner filed an unverified petition for writ of mandate challenging the Final Decision and Order as well as the ALJ’s Proposed Decision that was rendered on February 4, 2013. On January 22, 2014, Petitioner filed an Amended Petition, which was also not verified.

The Department brought this motion for judgment on the pleadings on May 21, 2014. Opposition was timely filed on August 15, 2041. However, the opposition was apparently not served on the Department or otherwise received by the Department, and there is no proof of service provided with Petitioner’s opposition. On August 25, 2014, the Department filed a Notice of Non-Receipt of Opposition, explaining as much.

Summary of Applicable Law

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321-22.) Judgment on the pleadings may be proper when the petition “does not state facts sufficient to constitute a cause of action against th[e] defendant.” (CCP, § 438(c)(1).)

The pleading under attack must be accepted as true, and the Court cannot consider discovery admissions or other evidence controverting the pleadings. (CCP § 438(d); Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-16.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits.

Analysis

CCP § 1094.6 provides that a petition for writ of mandate pursuant to CCP § 1094.5 “shall be filed not later than the 90th day following the date on which the decision [of the local agency] becomes final.” (CCP, § 1094.6(b).) However, a conflicting state or federal law which provides a shorter statute of limitations “shall” prevail over Section 1094.6. (CCP, § 1094.6(g).)

The Department contends that the statute of limitations as set out in Government Code § 11523 is applicable in the present matter, as the California Child Day Care Facilities Act provides that proceedings for the revocation of a child care license or foster family home license are governed by the Administrative Procedures Act. (See Health & Safety Code, §§ 1551(a), 1596.887(a).) Under Gov. Code § 11523, a petition for writ of mandate shall be filed within 30 days after the last day on which reconsideration can be ordered. “The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period…” (Gov. Code § 11521(a).) Thus, the Department contends the applicable statute of limitations is 60 days from the date the decision is mailed to Respondent or from the date the decision became effective, whichever came first. Because Petitioner filed her Petition for writ of mandate on January 21, 2014—95 days after the Department issued its final decision and 90 days after the final decision was mailed to Petitioner on October 22, 2013—the Department argues Petitioner’s Petition is time barred and the Court should grant Department’s motion without leave to amend.

In opposition, Petitioner apparently does not dispute the applicability of the statute of limitations as set out in the Administrative Procedures Act. However, Petitioner contends that the Department mailed an incomplete copy of the administrative hearing judgment to the Petitioner and Petitioner’s then-attorney on October 22, 2013 which was missing the last several pages, and that such copy was insufficient to trigger the statute of limitations since an incomplete copy cannot constitute delivery or mailing of a decision to a party. Accordingly, Petitioner claims that the applicable statute of limitations did not start until she finally received the missing pages of the administrative hearing judgment on December 2, 2014.

Petitioner’s contention is problematic for several reasons. For one, Petitioner’s argument is contradicted by her very own pleadings, in that the Amended Petition expressly states that her attorney inadvertently failed to send her the final pages of the decision. (See Amended Petition, 2:11-14 [“My attorney of record at the time, Janice Mendel mailed to home the Final Decision but failed to forward pages 20 thru 24 of the document to me not until December 02nd, 2013, please see Exhibit ‘1’.”].) In addition, Petitioner has provided no proof that the copy of the administrative hearing judgment sent to Petitioner on October 22, 2013 was deficient; rather, the letter which Petitioner attaches to her opposition (and which is also included as an Exhibit in the Petition) was sent from her former attorney’s office, further suggesting that her former attorney, not the Department, inadvertently failed to mail the final pages of the judgment after receiving it on October 22, 2013. Lastly, even if the Court assumes that the Department failed to deliver the final pages of the copy of the administrative hearing judgment to the Petitioner on October 22, 2013, there is no reason to suspect that such failure caused Petitioner to be unaware of the agency’s final decision in her matter.

In view of the foregoing, the Court finds that the Petition is untimely under Government Code § 11523.

Disposition

The Court GRANTS Respondent’s Motion for Judgment on the Pleadings without leave to amend, as the statute of limitations period expired before Petitioner filed her Petition under all calculations.

IT IS SO ORDERED.