202 Cal. App. 4th 1306
Cal. Ct. App.2012Background
- Vitkievicz was arrested for DUI in October 2009 and the DMV temporarily revoked his driving privilege after 30 days.
- The DMV held an administrative hearing resulting in a two-year revocation, which the DMV later affirmed on appeal.
- The final administrative decision was mailed May 10, 2010, with a notice stating a 94-day window to seek court review.
- Vitkievicz filed a petition for writ of mandate on August 13, 2010, which is 95 days after mailing the notice.
- Valverde demurred on October 19, 2010 asserting untimeliness under Vehicle Code section 14401, subdivision (a).
- The trial court sustained the demurrer on December 14, 2010, and dismissed the petition on January 26, 2011. Vitkievicz appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 14401(a) | Vitkievicz argues timely within 95 days. | Valverde argues petition untimely under 14401(a). | untimely; 90-day period ran May 14–Aug 12, 2010. |
| Effect of 1013(a) five-day extension | Extension should apply to mailed notice periods. | Extension does not apply when time is keyed to notice or order. | Inapplicable; five-day extension does not apply to this statute. |
| Waiver of statute of limitations defense | Argument waived due to failure to timely demur. | Demurrer asserted the defense; not waived. | Defense not waived; court may rule on merits; substantial rights preserved. |
Key Cases Cited
- McCall v. PacifiCare of Cal., Inc., 25 Cal.4th 412 (2001) (demurrer standards; independent review of pleading sufficiency)
- Schifando v. City of Los Angeles, 31 Cal.4th 1074 (2003) (concepts of pleading and judicial notice in demurrers)
- Aubry v. Tri-City Hospital Dist., 2 Cal.4th 962 (1992) (affects standard for affirming demurrers)
- Hassan v. Mercy American River Hospital, 31 Cal.4th 709 (2003) (statutory interpretation guiding extraction of intent)
- Department of Industrial Relations v. Atlantic Baking Co., 89 Cal.App.4th 891 (2001) (extension under CCP 1013 not applicable to certain statutory periods)
- Simpson v. Williams, 192 Cal.App.3d 285 (1987) (extension of time under CCP 1013 discussed; later disapproved in part)