Herman v. Los Angeles County Metropolitan Transportation Authority

• Citation: 84 Cal.Rptr.2d 144,71 Cal.App.4th 819
• Decision Date: 27 April 1999
• Docket Number: No. B123974,B123974
• Parties: , 99 Cal. Daily Op. Serv. 3038, 1999 Daily Journal D.A.R. 3897 Jack HERMAN, Plaintiff and Appellant, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Respondent.
• Court: California Court of Appeals

Page 144

84 Cal.Rptr.2d 144

71 Cal.App.4th 819, 99 Cal. Daily Op. Serv. 3038,

1999 Daily Journal D.A.R. 3897

Jack HERMAN, Plaintiff and Appellant, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Respondent.

No. B123974.

Court of Appeal, Second District, Division 1, California.

April 27, 1999.

Review Denied July 28, 1999.

Mastagni, Holstedt & Chiurazzi and Richard J. Chiurazzi, Sacramento, for Plaintiff and Appellant.

Lloyd W. Pellman, County Counsel, Benjamin J. Sterling, Deputy County Counsel, for Defendant and Respondent.

ORTEGA, Acting P.J.

Jack Herman was a lieutenant with Los Angeles County Metropolitan Transportation Authority's (MTA) police force. MTA sent Herman a notice of termination letter. Herman obtained counsel through his labor organization and demanded an MTA administrative hearing, at which Herman was represented by counsel. After a lengthy hearing, the arbitrator recommended that Herman be reinstated without back pay.

However, MTA rejected the recommendation and fired Herman. MTA sent a termination letter dated July 28, 1997, mailed with a proof of service on July 30, 1997, to Herman's attorney Mark Kruger. The letter contained a required warning that Herman had to file any petition seeking judicial review of his firing within 90 days of the date of mailing of the termination letter. (Code Civ. Proc., § 1094.6, subds. (a), (b).) ¹ Kruger received the letter and service proof.

However, MTA did not send the letter to Herman. ² Herman filed his administrative mandamus petition on November 6, 1997, a few days beyond the 90-day limitations period. ³ These facts are undisputed.

MTA demurred to the petition, arguing it was barred by section 1094.6's limitations The trial court sustained MTA's demurrer with leave to amend. When Herman could not amend his petition to demonstrate compliance with the statute, the trial court granted MTA's dismissal motion on the same ground and denied the petition. Herman appeals.

                period because service on Herman's lawyer satisfied the statute's service requirement. 4  In opposition, Herman urged two related grounds:  (1) the statute requires that the termination notice be sent to the party, and sending it to the party's lawyer cannot substitute for service on him;  and (2) the statute requires that the notice sent to the party contain the 90-day limitations period warning, and since MTA did not send Herman the notice, it also failed to notify him (as opposed to Kruger) of the limitations period
                

We agree with Herman and conclude section 1094.6's 90-day limitations period applies only if the required notice is served on the party, and that service on the party's lawyer does not trigger the 90-day period. Because the trial court erred in its contrary conclusion, we reverse and remand the case for the trial court to reinstate the petition. Because of our conclusion, we need not address Herman's second contention. ⁵

DISCUSSION

A. Standard of Review.

"The function of a demurrer is to test the sufficiency of the complaint by raising questions of law. [Citation.] The complaint must be given a reasonable interpretation and read as a whole with its parts considered in their context. [Citation.] A general demurrer admits the truth of all material factual allegations of the complaint; plaintiff's ability to prove the allegations, or the possible difficulty in making such proof, does not concern the reviewing court. [Citation.] 'As a reviewing court we are not bound by the construction placed by the trial court on the pleadings but must make our own independent judgment thereon, even as to matters not expressly ruled upon by the trial court.' [Citation.]" (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238-239, 282 Cal.Rptr. 233; Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

" 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.].... When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

B. Section 1094.6 Requires Service on the Party to Trigger the 90-Day Limitations Period.

As quoted in footnote 1, section 1094.6 requires that any petition seeking judicial The issue before us is one of statutory construction. Herman argues the statute on its face requires service on a party, not on the party's attorney. Herman further argues that other statutes distinguish certain notices and acts which may be given to or done by attorneys from those which must be given to or done by parties, thus demonstrating the Legislature's knowledge of the distinction and requiring us to conclude that the statutory language was intentional and mandatory. Herman buttresses his argument with legislative history.

review of a local agency decision must be timely filed (subd. (a)). "Any such petition shall be filed not later than the 90th day following the date on which the decision becomes final.... If there is a provision for a written decision ... the decision is final ... 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. ..." (§ 1094.6, subd. (b), emphasis added.)

MTA essentially concedes that section 1094.6 on its face requires service on the party. However, MTA responds that the statute should not be read literally. MTA cites general provisions that note that in litigation, service on a party's attorney constitutes service on the party, and that, as agents of their clients, the attorney's knowledge is imputed to the client. We agree with Herman and reject MTA's contrary arguments.

"The interpretation of a statute ... is a question of law...." (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.) " 'Interpretation and applicability of a statute or ordinance is clearly a question of law.' [Citation.] It is the duty of an appellate court to make the final determination from the undisputed facts and the applicable principles of law. [Citation.]" (Sutco Construction Co. v. Modesto High School Dist. (1989) 208 Cal.App.3d 1220, 1228, 256 Cal.Rptr. 671.) Thus, we interpret the challenged statute de novo as a matter of law.

Statutory interpretation involves a three step analysis. "First, a court should examine the actual language of the statute. [Citations.] Judges, lawyers and laypeople all have far readier access to the actual laws enacted by the Legislature than the various and sometimes fragmentary documents shedding light on legislative intent. More significantly, it is the language of the statute itself that has successfully braved the legislative gauntlet. It is that language which has been lobbied for, lobbied against, studied, proposed, drafted, restudied, redrafted, voted on in committee, amended, reamended, analyzed, reanalyzed, voted on by two houses of the Legislature, sent to a conference committee, and, after perhaps more lobbying, debate and analysis, finally signed 'into law' by the Governor. The same care and scrutiny does not befall the committee reports, caucus analyses, authors' statements, legislative counsel digests and other documents which make up a statute's 'legislative history.' [p] In examining the language, the courts should give to the words of the statute their ordinary, everyday meaning [citations] unless, of course, the statute itself specifically defines those words to give them a special meaning [citations] ). [p] If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. [Citations.] ...

"But if the meaning of the words is not clear, courts must take the second step and refer to the legislative history. [Citations.] [p] The final step--and one which we believe should only be taken when the first two steps have failed to reveal clear meaning--is to apply reason, practicality, and common sense to the language at hand. If possible, the words should be interpreted to make them workable and reasonable [citations] )." (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238-1240, 8 Cal.Rptr.2d 298.) We apply these undisputed rules to the facts and statute before us.

In analyzing the statute, we must follow the " ' "cardinal rule of construction [ ] that ... a construction making some words surplusage is to be avoided." ' [Citation.]" (State of South Dakota v. Brown (1978) 20 Cal.3d 765, 776-777; , 144 Cal.Rptr. 758, 576 Of particular relevance to our analysis is that here we construe a limitations statute. " '[S]tatutes of limitation are to be viewed favorably as affording to parties who may, by the lapse of time, have lost the ability to procure evidence, repose and security from stale demands.' [Citations.]" (People v. Universal Film Exchanges (1950) 34 Cal.2d 649, 659, 213 P.2d 697, emphasis added [state's attempt to assess additional taxes 10 years after returns were filed was time-barred].)

                P.2d 473 1 Witkin and Epstein, Cal.Criminal Law (2d ed.  1988) Introduction to Crimes, § 36(2), p. 45.)   Moreover, "our primary purpose is to ascertain and effectuate [legislative] intent....  [Citations.]  'To determine intent, " 'The court turns first to the words themselves for the answer.' " '  [Citation.]"  (In re Littlefield (1993) 5 Cal.4th 122, 130,

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