Case Number: BS172765    Hearing Date: October 04, 2018    Dept: 85

Narek Davityan v. City of Los Angeles, et al., BS 172765

Tentative decision on demurrer: overruled

Respondent City of Los Angeles (“City”)[1] demurs to the Petition filed by Petitioner Narek Davityan (“Davityan”).

The court has read and considered the moving papers (no opposition was filed), and renders the following tentative decision.

  1. Statement of the Case

Davityan commenced this proceeding on June 15, 2018.  The verified Petition alleges in pertinent as follows.

Davityan owns two dogs who allegedly attacked and injured a person and that person’s dog.  After a hearing, the General Manager of the Department of Animal Services (“Department”) issued a decision determining that Davityan’s dogs should be removed from the City and Davityan’s dog license revoked.

Davityan seeks a writ of mandate directing the City to set aside its revocation of his dog ownership rights and directing the City to return his dogs to him immediately.  Davityan alleges, inter alia, that the General Manager’s decision is not supported by the evidence, the hearing was not conducted in accordance with LAMC section 53.18.5, and the testimony of certain witnesses violated his due process rights because he was not given advance notice that they would appear at the hearing.

  1. Applicable Law

Demurrers are permitted in administrative mandate proceedings.  CCP §§1108, 1109.  A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings.  CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257.  The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading.  CCP §430.10.  A demurrer is timely filed within the 30-day period after service of the complaint.  CCP § 430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36.  CCP §430.10.  Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay.  Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.  The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court.  Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47.  The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403.  Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.  Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  CCP §430.41(a).  As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies.  Id.  The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.  Id.  The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met.  CCP §430.41(a)(3).

  1. Analysis

The City demurs to the entirety of the Petition on the grounds that it is time-barred.  The City has complied with the meet and confer requirement by discussing the arguments presented in the demurrer with Davityan.  Peterson Decl. ¶2.

The City argues that the Petition is time-barred because it fails to comply with the 90-day statute of limitations set forth in CCP section 1094.6(b).  Dem. at 2.  CCP section 1094.6(b) states that a petition for writ of administrative mandamus pursuant to CCP section 1094.5 must be filed within 90 days of the date that the decision being challenged becomes final.  Unless a statute, charter or rule provides for reconsideration of the decision or for a written decision, the decision is final on the date it is announced.  CCP section 1094.6(b).  If a provision for a written decision binds the agency, the decision is final for purposes of CCP section 1094.6 upon the date it is mailed by first-class mail, postage prepaid, to the party seeking the writ.  Ibid.

A demurrer predicated on a statute of limitations violation will not lie where the action may be, but is not necessarily, barred.  Lee v. Hanley, (2015) 61 Cal.4th 1225, 1232.  In order for the bar to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.  Ibid.

The City relies on facts in the exhibits attached to the Petition to substantiate its statute of limitations argument.  See Picton v. Anderson Union High School Dist., (1996) 50 Cal.App.4th 726, 733 (stating that the facts appearing exhibits attached to the complaint may be considered in evaluating a demurrer).

According to Petition Exhibit B, the Department submitted a request for an administrative hearing on February 24, 2017 naming Davityan as a respondent.  The Center alleged that Davityan’s two dogs attacked and injured a person, William Greenfield, and one of his dogs on February 21, 2017.  Pet. Ex. B, p.5.

A hearing was set for and held on September 14, 2017 to determine the veracity of the allegations.  Pet. Exs. A, G.  On September 14, 2017, the Hearing Examiner issued an Administrative Hearing Report and Recommendation finding that the Department had established that Davityan’s dogs had attacked and injured another dog and a person on at least one occasion.  Pet. Ex. G.  The Hearing Examiner recommended that Davityan’s dog licenses be revoked and that the dogs be immediately removed from the City.  Ibid.

On October 17, 2017, the Department’s Board of Animal Services Commissioners (“Board”) received Davityan’s appeal request form challenging the General Manager’s decision.  Pet. Exs. E, H.  Davityan challenged the General Manager’s decision on the basis that it was unsupported by the evidence and not conducted in accordance with LAMC section 53.18.5.  Pet. Ex. E.

In a letter dated January 31, 2018 and addressed to Davityan, the Board concluded that the evidence supported the General Manager’s decision and that the hearing had been properly conducted.  Pet Ex. H.  The letter concludes by stating that Davityan may seek judicial review of the General Manager’s decision by filing a petition for writ of mandate with the superior court within the time prescribed by statute.  Ibid.

The City’s statute of limitations argument is not borne out by the governing law.  The Board’s decision on Davityan’s appeal did not become final for limitations purposes until it was served on Davityan.  See CCP §1094.6(b); LAMC §53.18.5(q)(10) (“A decision of the Board is final.  It becomes effective when served upon the General Manager and appellant by the Board.”).  Neither Davityan’s Petition nor the attached Exhibits states when Davityan was served with the Board’s January 31, 2018 decision.  Consequently, the court cannot conclude that Davityan’s Petition, filed on June 15, 2018, is time-barred by CCP section 1094.6(b).

  1. Conclusion

The City’s demurrer is overruled.  The City has 30 days to answer only.  Pursuant to CCP section 1094, the City may make a motion based on undisputed facts to show when the January 31, 2018 letter was served and that the Petition is untimely.

[1] Erroneously sued as Office of the City Attorney and City of Los Angeles Department of Animal Services.

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