Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34200980000144CUWMGDS.
ROBIE, J.
Following the sustaining of a demurrer, appellant Youth Development Partnership (the partnership) appeals from a judgment dismissing, as untimely, the partnership’s petition for a writ of administrative mandamus (Code Civ. Proc., § 1094.5) against respondents Susie Lange, deputy superintendent of the fiscal, technical and administrative branch of the Department of Education, child development division, and the child development division office of administrative hearings appeals coordinator (collectively, the department). The partnership’s petition challenged the department’s denial of relief from default regarding the department’s reduction of state funds for child care services provided by the partnership. The partnership argues its petition was timely because the partnership should benefit from a statutory extension of the limitations period when an administrative agency grants a stay to reconsider its decision -- even though no stay was requested or granted in this case. (Gov. Code, §§ 11519-11523.) We shall affirm the judgment.
All undesignated statutory references are to the Government Code.
BACKGROUND
The partnership’s pleading alleged -- and we treat the demurrer as admitting (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967) -- that the partnership is a nonprofit entity providing child care, funded in part by state funds administered by the department. The department allegedly gave the partnership bad advice about preparing the funding application for 2005/2006 (i.e., to show income from federal funds but not related expenses), resulting in a January 2008 letter from the department to reduce the partnership’s funding by $90,619 unless the partnership, within 15 days, requested an administrative hearing under the Administrative Procedure Act (§ 11506). The partnership did not respond. The department issued a default decision on July 14, 2008.
On July 25, 2008, the partnership moved for relief from default on the grounds of excusable mistake and the discretion of the department’s appeals coordinator to allow a late petition for a hearing. The partnership asserted it did not understand the significance of the letter as a demand for reimbursement of an overpayment.
On October 27, 2008, the department mailed its decision determining there was no excusable mistake and denying the request for relief from default. The department attached a copy of statutes (§§ 11520-11523) advising that: (1) the deadline for seeking judicial review was 30 days after the last day on which the agency could order reconsideration; and (2) the agency’s power to order reconsideration generally expired 30 days after the mailing of the decision unless the agency granted a stay.
On November 26, 2008, (within the 30 days allowed for reconsideration) the partnership filed a motion for reconsideration, arguing no reasonable person would have failed to contact the department had the person understood the letter, and the denial of relief from default was based on an error of law in applying the standard for a reasonable departmental auditor rather than a reasonable volunteer or director at a nonprofit child care program.
We take the November 26, 2008, date from the partnership’s pleading. As indicated, we treat the demurrer as admitting the pleading’s allegations. The partnership’s appellate brief gives the date as November 25, 2008. We will use the date from the verified petition but observe that, for purposes of this appeal, the discrepancy does not matter.
On December 12, 2008, the department mailed a denial of reconsideration, advising that, since no action had been taken on the reconsideration motion within the time allowed by law (November 26, 2008), the motion had been deemed denied by operation of law.
On Monday, January 12, 2009, (more than 30 days after the last day for reconsideration on November 26, 2008) the partnership filed its petition for a writ of administrative mandamus. The partnership asked the trial court for a writ commanding the department to grant relief from default and to allow the partnership to show on its application expenses related to federal funding.
The department demurred to the writ petition on the ground the petition was not filed within the 30-day period allowed by section 11523, which states in part, “the petition shall be filed within 30 days after the last day on which reconsideration can be ordered....” Under section 11521, the last day on which reconsideration could have been ordered (absent a stay) was November 26, 2008 -- 30 days after the mailing of the denial of the motion for relief from default. Thus, the last day to file the writ petition was December 26, 2008. The writ petition filed on January 12, 2009, was too late.
The department acknowledged it mailed the partnership a written denial of reconsideration on December 12, 2008, but argued the mailing did not trigger a new limitations period but merely reported that the reconsideration motion had been deemed denied by operation of law. Thus, the department’s December 12, 2008, “DENIAL OF MOTION FOR RECONSIDERATION OF RULING ON REQUEST TO VACATE DECISION AND RELIEVE DEFAULT, ” of which the trial court took judicial notice, stated: “Whereas no action has been taken on [the] Motion for Reconsideration within 30 days of the service of the Ruling on Request to Vacate Decision and Relieve Default which occurred on October 27, 2008, this Request for Reconsideration is deemed DENIED. (Govt. Code § 11521(a).)”
The partnership opposed the demurrer, arguing that, because the statutes extend the limitations period pending administrative reconsideration and expressly state the right to petition shall not be affected by the failure to seek reconsideration, then the time for filing the writ petition in the trial court must be extended by the time statutorily-authorized for an administrative stay of reconsideration proceedings, even where, as here, no stay was requested or granted. The partnership also argued in effect that the department should be estopped from asserting a trigger date earlier than its December 12, 2008, mailing of the denial of reconsideration (though the partnership did not seek leave to amend its pleading to allege reliance).
On July 24, 2009, the trial court sustained the department’s demurrer without leave to amend, noting in part that the partnership had not shown grounds for estoppel (which we construe as referring to the partnership’s failure to seek leave to amend to allege grounds for estoppel). On August 20, 2009, the trial court entered a judgment of dismissal of the partnership’s writ petition. On November 2, 2009, the partnership filed a notice of appeal. Since the record on appeal contains no notice of entry of judgment or proof of service, the appeal is timely, having been filed within 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a).)
DISCUSSION
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, ... [t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken.... However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp. 966-967.)
The main issue in this appeal presents a question of statutory interpretation, which we review de novo. (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 713-714.) Under the circumstances of this case, the partnership’s estoppel argument also presents a question of law subject to de novo review. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 483 [whether an estoppel can lawfully arise from the facts may be a question of law].)
The partnership argues the applicable statutes extend the limitations period by the maximum time that the administrative agency may grant a stay pending reconsideration, even though the partnership did not request or receive a stay. We reject this argument.
Section 11523 authorizes the filing of a petition for a writ of mandate in the trial court, which “shall be filed within 30 days after the last day on which reconsideration can be ordered. The right to petition shall not be affected by the failure to seek reconsideration before the agency....”
The last day on which reconsideration can be ordered is set forth in section 11521, subdivision (a): “The agency itself may order a reconsideration of all or part of the case on its own motion or on petition of any party. The agency shall notify a petitioner of the time limits for petitioning for reconsideration. The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or [on an earlier date expressly set forth in the decision] or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration. If additional time is needed to evaluate a petition for reconsideration filed prior to the expiration of any of the applicable periods, an agency may grant a stay of that expiration for no more than 10 days, solely for the purpose of considering the petition. If no action is taken on a petition within the time allowed for ordering reconsideration, the petition shall be deemed denied.” (Italics added.)
The last day for reconsideration (absent a stay or earlier date set by the agency) coincides with the effective date of the administrative decision, pursuant to section 11519, which provides: “(a) The decision shall become effective 30 days after it is delivered or mailed to respondent unless: a reconsideration is ordered within that time, or the agency itself orders that the decision shall become effective sooner, or a stay of execution is granted.”
Here, the decision was mailed on October 27, 2008. Since it did not state an earlier effective date, it became effective 30 days later -- on November 26, 2008 (absent reconsideration). The partnership’s motion for reconsideration was filed on November 26, 2008. The department was not asked to and did not grant a stay for the purpose of considering the motion.
Accordingly, the 30-day period for filing a writ petition in the trial court began on November 26, 2008, (the last date the agency could have ordered reconsideration) and ended the day after Christmas -- December 26, 2008. The department’s December 12, 2008, notice of denial of the reconsideration motion did not begin a new limitations period because it did not purport to constitute a denial on the merits but merely advised that the motion had been “deemed DENIED” by operation of section 11521. Thus, the writ petition filed in court on January 12, 2009, was untimely.
The partnership contends it had 100 days from the October 27, 2008, administrative decision (denying relief from default) to file its writ petition in the trial court, calculated as follows:
(a) 30 days after the decision was mailed (§ 11519), plus
(b) 30 days for “a possible stay” for filing of a motion for reconsideration (§ 11521), plus
(c) 10 days for a possible stay for the agency to decide a reconsideration motion (§ 11521), plus
(d) 30 days after the foregoing 70 days, i.e., 30 days after the last day on which reconsideration could be ordered (§ 11523).
The partnership thus claims entitlement to count days for “possible” stays which were never requested or granted because section 11523 says “The right to petition shall not be affected by the failure to seek reconsideration before the agency.” We disagree.
Clearly, section 11523’s provision that the right to petition not be affected by a failure to seek reconsideration, means only that a party need not exhaust the administrative remedy of reconsideration before seeking judicial relief in the trial court. Reimel v. Alcoholic Bev. etc. Appeals Bd. (1967) 254 Cal.App.2d 340, construing statutes unique to the Alcoholic Beverage Control Act, observed those statutes were essentially the same as sections 11521 and 11523, and “The Tenth Biennial Report, Judicial Council of California, December 31, 1914, explaining the then proposed section 11523 (which was adopted in 1945) stated at page 28: ‘... The statute provides, ... that the right to judicial review is not lost by a failure to petition for reconsideration. The Council decided that the established policy requiring exhaustion of administrative remedies is adequately safeguarded by the requirement that the administrative proceeding must be completed before the right to judicial review exists.’” (Id. at pp. 343-344, fn. 2.) Reimel v. Alcoholic Bev. etc. Appeals Bd. held that, where an agency does not in fact grant a stay for reconsideration, the time for further review is not extended. (Id. at p. 346.)
Reimel v. Alcoholic Bev. etc. Appeals Bd., supra, 254 Cal.App.2d at pages 342-344, acknowledged that another court in Walters v. Contractors’ State License Board (1964) 229 Cal.App.2d 449 said section 11523’s language (that the right to petition shall not be affected by the failure to seek reconsideration) could also be construed to mean that the “petitioner is not to be penalized for his failure to request reconsideration by the specific provisions of section 11523.” (Walters, at p. 454.) Reimel v. Alcoholic Bev. etc. Appeals Bd., supra, 254 Cal.App.2d at pages 343-344, criticized Walters as lacking in analysis and out of harmony with the weight of authority.
Here, the partnership relies on Walters. However, the same court that decided Walters (Second Appellate District, Division Four) later stated in Reimel v. House (1968) 264 Cal.App.2d 173, that Walters was no longer good law, in view of the California Supreme Court’s denial of review of Reimel v. Alcoholic Bev. etc. Appeals Bd. Reimel v. House, supra, 264 Cal.App.2d at page 175, said that, although the Supreme Court’s denial of review does not necessarily reflect approval of a case, the refusal of the Supreme Court to interfere in a case that directly contradicted another opinion had to be construed as endorsement of the newer case.
The partnership argues the fact that courts have disagreed proves the existence of an ambiguity in the statute, which must be resolved in favor of allowing trial on the merits. We disagree.
The partnership argues Koehn v. State Board of Equalization (1958) 166 Cal.App.2d 109, supports adding the various “effective date” and “stay” dates together to extend the time for filing. We disagree.
Koehn held that a prior version of section 11521, providing a maximum 30-day stay for the purpose of filing a reconsideration motion, also allowed an agency to give itself a 30-day stay to decide a reconsideration motion. (Koehn v. State Board of Equalization, supra, 166 Cal.App.2d at p. 114.) However, Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1260, said Koehn was superseded by the 1987 amendment of section 11521, authorizing a maximum 10-day stay for the purpose of deciding the reconsideration motion. Bonnell, which said section 11521 was unambiguous, held that, once a reconsideration motion is filed, an agency can no longer grant the 30-day stay authorized by section 11521 for the filing of a reconsideration motion and is limited to granting a 10-day stay for the purpose of deciding whether to reconsider. (Bonnell, at pp. 1261-1262.)
Under a heading in their brief that the department did not provide any specific period for filing the reconsideration motion, the partnership argues the department should be estopped from disavowing its December 12, 2008, denial of reconsideration as triggering a new 30-day period for filing the writ petition because the department did not notify the partnership that the denial was superfluous. However, the department did attach copies of the applicable statutes to the denial of relief from default and did state in the denial of reconsideration that the motion was deemed denied by the department’s inaction.
Estoppel requires reasonable reliance on an opposing party’s conduct and cannot be created by a plaintiff’s mistake that is not caused or encouraged by the defendant. (Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1152.) Here, the partnership has not alleged such reliance and does not propose any amendment of the pleading that could create an estoppel. We therefore need not address the parties’ dispute as to whether limitations periods for administrative mandamus petitions are jurisdictional. We also need not address the partnership’s argument in its reply brief (which was not mentioned in his opening brief) that we should apply to this case a rule extending the time to appeal civil cases by the amount of time the court takes to decide a motion for reconsideration under Code of Civil Procedure section 1008.
We conclude the partnership fails to show grounds for reversal.
DISPOSITION
The judgment of dismissal is affirmed. The department shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: SCOTLAND, Acting P. J. HULL, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.