Opinion
D047433
12-13-2006
PHILLIP A. MIMS, Plaintiff and Appellant, v. SAN DIEGO COUNTY EMPLOYEES RETIREMENT ASSOCIATION, Defendant and Respondent.
The trial court ruled the applicable statute of limitations barred it from exercising jurisdiction over the petition for writ of mandate that Phillip A. Mims filed challenging the decision by the Board of Retirement of the San Diego County Employees Retirement Association (Board) to deny his application for a service-connected disability retirement.
Mims contends the trial court erred in determining it lacked jurisdiction, and it should have reviewed the underlying administrative hearing, which was unfair. He also contends the trial court erred in finding that his moving papers in support of the writ petition were untimely filed. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The issue we resolve in this opinion is a narrow one; therefore, we do not relate facts regarding Mimss extensive medical treatment and evaluations by multiple physicians over the years since the accident. We also omit a discussion of government benefits Mims received in connection with his injuries.
On November 24, 1995, Mims was hired by the County of San Diego as a Public Defender Investigator Trainee. On May 13, 1996, he was involved in an automobile accident during the workday. The paramedics arrived and, according to Mimss testimony, told him: "Okay. Looks fine. He has got a bruise on his head, on his leg, and . . . pain through the — from like the cervical/thoracic area and down the arm. And he gave a diagnosis of whiplash. He acknowledged that this was a result of the motor vehicle accident. He gave a good prognosis. He gave — able to return to full duty [as of May 18] of 1996 and with rechecking it in one week. I believe I kept that appointment, and in which case he returned me to regular duty."
On May 31, 2000, Mims filed an application with the Board for a service-connected disability retirement. Administrative proceedings were held regarding this application on July 24, 2003, and December 15, 2003.
On April 30, 2004, the hearing officer concluded that Mims was not permanently incapacitated for his duties because the Public Defenders Office was able to accommodate his limitations; accordingly he recommended that Mimss application be denied. Mims filed objections to the hearing officers proposed decision, and SDCERA countered those objections. The hearing officer issued a supplemental report that reiterated his recommendation.
On November 4, 2004, the Board met and adopted the hearing officers recommendation to deny Mimss application. The Board issued its notice of decision to Mims on November 5, 2004. Separately, SDCERA mailed the notice of decision to Mims on November 8, 2005. The notice of decision states, "`The time within which judicial review of this decision must be sought is governed by Code of Civil Procedure, Section 1094.6, which has been made applicable to the Board of Retirement of the San Diego County Employees Retirement Association by Paragraph 25 of Rule XII of the By-Laws and regulations of the Board of Retirement of the San Diego County Employees Retirement Association. Any petition or other paper seeking judicial review must be filed in the appropriate court not later than the 90th day following the date on which this decision becomes final. However, if within 10 days after the decision becomes final a request for the record of the proceedings is filed and the required deposit in an amount sufficient to cover the estimated cost of preparation of such record is timely deposited, the time within which such petition may be filed in court is extended to not later than the 30th day following the date on which the record is either personally delivered or mailed to the party, or his attorney of record, if he has one. A written request for preparation of the record of the proceedings shall be filed with the Chief Executive Officer for the Board of Retirement. " (Emphasis added.)
On February 16, 2005, which came 100 days after service of the Notice of Decision, Mims filed a petition for writ of mandamus. On April 4, 2005, SDCERA filed an answer and asserted, among other things, that the petition was barred by the statute of limitations. On May 10, 2005, Mims filed an amended writ petition that alleged the hearing officer abused his discretion in numerous ways, including by introducing into evidence documents offered by SDCERA, but excluding some medical evidence Mims offered. Mims also contended he was "entitled to review based upon consideration of the decision on its face which would allow collateral attack even assuming the statute of limitations has run regarding review under section 1094.6 of the Code of Civil Procedure."
All statutory references are to the Code of Civil Procedure unless otherwise stated.
On June 14, 2005, the trial court, denied an ex parte application Mims brought for a restraining order against SDCERA for alleged "stalking;" the court set August 12, 2005, as the date for a hearing on the writ petition, and stated, "All opposing papers, reply papers, please do it pursuant to code." Mims did not comply with the time requirements of section 1005. All papers were due on July 20, 2005, but it was not until August 5, 2005, that he filed a memorandum of points and authorities and several other documents in support of his amended writ petition.
Section 1005, subdivision (b) states, "Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing." This deadline is extended by 5 calendar days if the papers are served by mail.
SDCERA filed its opposition papers to Simss writ petition on August 2, 2005. On August 9, 2005, SDCERA filed an opposition to Mimss documents filed on August 5, 2005, because they were untimely filed. On August 15, 2005, the trial court sustained the objections SDCERA raised to Mimss untimely filed papers in support of the writ petition, denied the amended writ petition, and ruled that Simss reliance on section 473 for relief from the statute of limitations was unavailing. The court noted that "even if it had considered the late-filed, excess page points and authorities filed in support of the amended petition, no persuasive authority was cited that would permit this Court to entertain this untimely petition."
DISCUSSION
Phillip A. Mims filed a petition for writ of mandate after the Board denied his application for a service-connected disability retirement. The court ruled his petition was barred by the statute of limitations. "Resolution of a statute of limitations defense is normally a question of fact. However, when the uncontradicted facts established through discovery are susceptible of only one legitimate inference, the trial court may determine the matter as one of law. [Citation.] We independently review the propriety of the courts ruling." (Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 890.)
Under section 1094.5, review of the Boards ruling on an application for a service-connected disability retirement is through a petition for writ of mandate. (Strumsky v. San Diego County Employees Retirement Association (1974) 11 Cal.3d 28, 34-35; Singh v. Board of Retirement (1996) 41 Cal.App.4th 1180, 1184.) The statute of limitations for filing such a writ is 90 days after the decision of the board becomes final, which is the date the written decision is "mailed by first-class mail, postage prepaid including a copy of the affidavit or certificate of mailing to the person seeking the writ." (§ 1094.6, subd. (a).)
There is no dispute that Mims filed his writ petition 9 days late. The Board complied with the statute and mailed its decision to Mims on November 5, 2004; given that 90 days later was February 6, 2005, a Sunday, the statute of limitations was extended until February 7th, 2005. (§ 12a, subd. (a).) Mims did not file his writ petition until February 16, 2005. The statute of limitations was not extended because Mims did not file a request for a record of the proceedings. The court correctly declined to rule on the merits of Mimss writ petition. In a case in which the defendant filed a writ petition 3 days late, the court of appeal held, "Simply stated, the court has no jurisdiction to entertain section 1094.6 petitions unless they are filed on or before the 90th day after the local agencys decision." (Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 576, 579.)
Contrary to Mimss contention, he could not rely on section 473 for relief. That section might relieve a party from "`a judgment, dismissal, order, or other proceedings taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. [Citation.] However, [it] does not provide relief from such errors that result in the running of the applicable statute of limitations." (Life Savings Bank v. Wilhelm (2000) 84 Cal.App.4th 174, 177.)
Given our conclusion that the trial court had no jurisdiction to rule on the merits of Mimss writ petition, we do not address his other claims on appeal, including the attack on the fairness and impartiality of the administrative hearing. Any such concern should have been addressed in a timely writ petition. "Failure to do so renders the administrative action immune from collateral attack." (Sierra Canyon Co. v. California Coastal Commission (2004) 120 Cal.App.4th 663, 669.)
DISPOSITION
The judgment is affirmed. The San Diego County Employees Retirement Association is awarded costs on appeal.
We Concur:
NARES, Acting P. J.
IRION, J.