Wilson v. Douglas CA2/6

Filed 7/15/14 Wilson v. Douglas CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

DEBORAH KAY WILSON, 2d Civil No. B253662
(Super. Ct. No. 56-2013-443432-
Plaintiff and Appellant, CU-PT-VTA)
(Ventura County)
v.

TOBY DOUGLAS et al.,

Defendant and Respondent.

Deborah Kay Wilson appeals a judgment dismissing her action against
defendants Toby Douglas, the Director of the California Department of Health Care
Services (DHCS), and Barry L. Zimmerman, the Director of the Ventura County Human
Services Agency (HSA). Wilson filed a superior court petition to challenge a DHCS
administrative decision which ruled she was not eligible for Medi-Cal benefits. (Welf. &
Inst. Code, § 10962.)1 We conclude, among other things, that: 1) Wilson's petition was
not filed within the one-year statute of limitations of section 10962; 2) that limitations
period was not extended by Wilson's request for a rehearing; 3) section 10962's
limitations period is not superseded by other statutory limitations provisions; and 4)
DHCS gave proper notice of the limitations period consistent with section 10962. We
affirm.

1
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
 FACTS
On March 7, 2012, HSA notified Wilson that her Medi-Cal application was
denied. Wilson requested an administrative hearing to challenge the denial.
On September 13, 2012, DHCS issued the DHCS director's final decision
denying Wilson's claim on the ground that she was not eligible for benefits under "Medi-
Cal program regulations." The decision contained the following advisement: "You may
ask for judicial review of this decision by filing a petition in Superior Court under Code
of Civil Procedure § 1094.5 within one year after you receive this decision."
Wilson filed a request for rehearing. On August 13, 2013, DHCS denied
that request. The letter denying the rehearing contained the following advisement: "If
you decide to seek judicial review, a petition must be filed in Superior Court within one
year after the date you received the original final decision."
On October 15, 2013, Wilson filed a superior court petition. She alleged,
among other things, that she sought "a writ of mandamus" to review and set aside the
decision. She labeled the pleading as a petition filed pursuant to "California Welfare and
Institutions Code 10962."
DHCS filed a demurrer contending, among other things, that "[t]he Petition
is untimely pursuant to Welfare and Institutions Code section 10962 and therefore, this
Court lacks jurisdiction over the subject matter."
Wilson responded by filing an opposition and a motion to strike the
demurrer. In her motion to strike, she claimed the DHCS demurrer was not timely filed
and that the trial court should enter a default judgment in her favor.
The trial court sustained the DHCS demurrer without leave to amend and
denied Wilson's motion to strike. It entered a judgment dismissing her action.
DISCUSSION
The Statute of Limitations
After an administrative hearing, Medi-Cal applicants or recipients who
want to challenge a DHCS decision regarding their benefits must file a petition for writ of
administrative mandate as their "exclusive remedy" for judicial review. (Green v. Obledo

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(1981) 29 Cal.3d 126, 143, fn. 12.) The DHCS director "shall be the sole respondent in
such proceedings." (§ 10962.)
Wilson filed a petition in the superior court to challenge the DHCS decision
denying her application for Medi-Cal benefits. Section 10962 provides that such
petitions must be filed "within one year after receiving notice" of the DHCS Director's
final decision. (§ 10962.) Here the decision was mailed to Wilson. Code of Civil
Procedure section 1013, subdivision (a) provides that where service by mail occurs
within this state, "any period of notice and any right or duty to do any act or make any
response within any period or on a date certain after service of the document . . . shall be
extended five calendar days."
In its demurrer, DHCS stated that Wilson's petition was untimely because:
1) the decision "was issued by the Department, and mailed on September 14, 2012"; 2)
under "Code of Civil Procedure section 1013, subdivision (a), mail delivery within
California is deemed to take, at most, five calendar days"; and 3) consequently, "she had
up to and including September 19, 2013" to file the petition. Her petition was not filed
until October 15, 2013.
Wilson contends the trial court "applied the wrong standard and reached
conclusions that are implausible" on timeliness at the hearing on the demurrer. In the
judgment, the trial court said it ruled against her based on "all documents before it" and
"for the reasons set forth by the Court at the January 6, 2014 hearing." (Italics added.)
But Wilson did not produce a reporter's transcript of that hearing, a settled statement
(Cal. Rules of Court, rule 8.137), or an agreed statement (id., rule 8.134). An appellant
must prepare a complete record on appeal. (Null v. City of Los Angeles (1988) 206
Cal.App.3d 1528, 1532.) "If an appellant intends to raise any issue that requires
consideration of the oral proceedings in the superior court, the record on appeal must
include" a reporter's transcript, an agreed statement or a settled statement. (Cal. Rules of
Court, rule 8.120(b).) Where the record is incomplete, as here, we presume the trial court
made the correct findings at the proceedings which are not in the record. (Null, at
p. 1532.) Because the trial court ruled in favor of DHCS, we must presume it found from

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"the documents before it" that DHCS's time calculations were correct and the filing
deadline was September 19, 2013.
Wilson's petition was a mandamus review of an administrative decision.
(Green v. Obledo, supra, 29 Cal.3d at p. 143, fn. 12.) The statute authorizing this review
has a specific statute of limitations. (§ 10962.) "[A] proceeding for writ of mandate is
barred if not commenced within the applicable limitation period." (Kupka v. Board of
Administration (1981) 122 Cal.App.3d 791, 794.) "Where a complaint shows on its face
that the cause of action is apparently barred, plaintiff must plead facts showing a ground
for suspension, delayed accrual, or application of another theory for avoidance of the
statute." (County of Alameda v. Superior Court (1987) 195 Cal.App.3d 1283, 1286.)
Extension, Suspension or Tolling of the Statute of Limitations
DHCS contends: 1) Wilson did not plead sufficient facts showing delayed
accrual or suspension of the limitations period; and 2) Wilson's petition is largely
comprised of conclusory statements, arguments and points and authorities in lieu of the
required statement of facts. (Code Civ. Proc., § 425.10, subd. (a)(1); Moore v. Regents of
University of California (1990) 51 Cal.3d 120, 125 [courts may "not . . . assume the truth
of contentions, deductions, or conclusions" in a pleading].) Wilson has not shown that
these DHCS claims lack merit. Moreover, she did not allege sufficient facts to show
anyone prevented her from timely filing or that she lacked notice of the time limits. The
exhibits she attached to her petition contain DHCS advisements regarding the limitations
period.
In her petition, Wilson made statements indicating it was not filed within
time limits of section 10962 and Code of Civil Procedure section 1013, subdivision (a).
She said, "Lateness, if any, is attributable to excusable neglect." In her opening brief, she
states, "It is not disputed that petitioner filed within approximately one year and thirty
five days of the DHCS decision appealed dated September 13, 2013." She notes,
however, that in her petition she also said "[l]ateness" was excused and the time to file
was extended because of "equitable tolling." Wilson alleged the time to file was
extended "five days for mailing" under Code of Civil Procedure section 1013, "plus at

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least sixty days" to be consistent with the procedure for "habeas corpus" petitions. But
this was not a habeas proceeding, and the additional 60 days she claims is not authorized
under section 10962.
Extension of the Limitations Period Because of a Rehearing Request
Wilson contends her petition was timely under Code of Civil Procedure
section 1094.6, which provides a 90-day period to file petitions to review government
agency decisions. She claims she filed within 90 days of the denial of her rehearing
request. But section 1094.6 applies to "local" agencies. DHCS is a state agency.
Consequently, that section does not apply and, as will be seen, section 10962's limitations
period does not run from the denial of her request for a rehearing.
Wilson argues the statute of limitations did not begin to run after receipt of
the 2012 decision because: 1) the 2012 decision was not the final decision because she
requested a rehearing, 2) the final decision was the ruling on her request for rehearing,
and 3) her section 10962 petition is a review of the rehearing denial.
The 2012 decision "remains final pending a request for a rehearing."
(§ 10960, subd. (d).) "Only after a rehearing is granted is the decision no longer the final
decision in the case." (Ibid.) Here there was no grant of a rehearing. Consequently, the
2012 decision is the final decision. (Ibid.)
Moreover, a mandamus review under section 10962 pertains to the 2012
"director's final decision," not the denial of a rehearing. (§ 10962.) Wilson labeled her
petition as a review of the "denial of request for rehearing." But in that pleading she said
she filed the petition "to review the [DHCS] decision." Consequently, her petition was a
late challenge to the 2012 decision. A party may not seek review of the rehearing denial
in lieu of a timely petition to review the decision. "[T]o hold otherwise would permit, in
effect, two appeals for every appealable decision and promote the manipulation of the
time allowed for an appeal." (Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th
1225, 1242.)
A request for rehearing does not extend the time to file the petition for
another reason. Section 10962's one-year time limit for reviewing the administrative

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decision is jurisdictional. (Liang v. San Francisco Residential Rent Stabilization &
Arbitration Bd. (2004) 124 Cal.App.4th 775, 777-778; Donnellan v. City of Novato
(2001) 86 Cal.App.4th 1097, 1103, Tielsch v. City of Anaheim (1984) 160 Cal.App.3d
576, 578-579.) Section 10962 contains no provision for an extension of that period for
rehearing requests or other reasons.
"'Statutes of limitation . . . prescribing definite periods of time within which
actions may be brought . . . are, of necessity, adamant rather than flexible in nature.'"
(Chas. L. Harney, Inc. v. State (1963) 217 Cal.App.2d 77, 91.) "'When the Legislature
has decided to introduce an element of flexibility in a particular instance, it has expressly
provided for extension of the limitation period . . . . [Citation.] In the absence of such a
specific provision for extension, it must be inferred the Legislature did not intend to
permit relief on grounds of good cause . . . .'" (Sinetos v. Department of Motor Vehicles
(1984) 160 Cal.App.3d 1172, 1175-1176.) Wilson points to some statutes that have
shorter limitations periods (e.g., 90 days) and contain express extensions of that period
for rehearing decisions. But section 10962 is a different type of statute and it has a much
longer limitations period. "The Legislature chose not to provide for an extension of time
in the statute now before us and we decline to import into the statute that which we must
assume was purposely omitted." (Id. at p. 1176.)
Moreover, a "rehearing request or decision" is not "a prerequisite to filing
an action under Section 10962." (§ 10960, subd. (e).) But filing within one year is.
Consequently, "[t]he fact that a party aggrieved by the order has filed a motion for
reconsideration does not extend the time within which to file a petition for review."
(Jackson & Perkins Co. v. Agricultural Labor Relations Bd. (1978) 77 Cal.App.3d 830,
834.) Courts therefore have rejected claims that fixed mandatory limitations periods are
tolled or suspended for rulings on reconsideration petitions. (United Farm Workers v.
Agricultural Labor Relations Bd. (1977) 74 Cal.App.3d 347, 350 [the contention that "the
time period runs from the board's denial of a petition for reconsideration" has "no
merit"].)

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 Is Section 10962 Superseded By Other Statutory Limitations Provisions?
Wilson claims the statute of limitations of section 10962 is superseded by a
two-year statute of limitations in Government Code section 945.6. But that provision is
not applicable. It involves a general limitations period for causes of action "for which a
claim is required" where the public entity did not give proper notice. (Gov. Code,
§ 945.6, subd. (a).) Wilson cites limitation provisions in other code sections and
contends they should be applied in place of section 10962. But none of the provisions
she cites apply to mandamus reviews of DHCS decisions.
Here the right of review and the limitations period are contained in section
10962. This statute governs administrative mandamus reviews of DHCS decisions. "'A
specific provision relating to a particular subject will govern in respect to that subject, as
against a general provision, although the latter, standing alone, would be broad enough to
include the subject to which the more particular provision relates.'" (Committee for a
Progressive Gilroy v. State Water Resources Control Bd. (1987) 192 Cal.App.3d 847,
859.) "This rule applies to statutes of limitations and consequently a specific statute must
take precedence over general statutes of limitation." (Ibid.) Applying other limitations
periods for unrelated proceedings conflicts with the legislative intent to have an exclusive
limitations period for section 10962 reviews. (Ibid.; Walters v. County of Plumas (1976)
61 Cal.App.3d 460, 469.)
Was the Limitations Period Extended Because of Inadequate Notice?
Wilson suggests the limitations period should be extended because DHCS
gave confusing or inadequate notices regarding the time to initiate litigation. The time to
file an action may be extended where the government entity gave erroneous advice that
caused the late filing. (City of Los Angeles v. Industrial Acc. Com. (Dillin) (1965) 63
Cal.2d 255, 260.) But that is not the case here.
In the rehearing denial notice, DHCS said, "If you decide to seek judicial
review, a petition must be filed in Superior Court within one year after the date you
received the original final decision." (Italics added.) That is consistent with the notice
Wilson received with the original 2012 decision that she must file her petition "within

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one year after you receive this decision." Consequently, these two advisements gave: 1)
notice of the time limit to file the petition consistent with section 10962, and 2) notice
that the period runs from the receipt of the original decision, not the denial of the
rehearing request.
Leave to Amend
The trial court sustained the demurrer without leave to amend. It may do so
where there is no reasonable probability the result will change by amendment. (Buford v.
State of California (1980) 104 Cal.App.3d 811, 818.) Wilson did not show how she
could amend to allege she filed within the limitations period. Leave to amend is properly
denied where the petition is filed beyond a jurisdictional limitations period. (Liang v. San
Francisco Residential Rent Stabilization & Arbitration Bd., supra, 124 Cal.App.4th at
p. 779 [demurrer properly sustained without leave to amend where petition was one day
late].) "A plaintiff's mistake, not caused by the defendant, has never been permitted to
excuse a late filing." (Sinetos v. Department of Motor Vehicles, supra, 160 Cal.App.3d at
p. 1177.) Moreover, Wilson may not show an abuse of discretion given the absence of a
proper record of the court's findings on this issue. (Cal. Rules of Court, rule 8.120(b);
Null v. City of Los Angeles, supra, 206 Cal.App.3d at p. 1532.)
In addition to the statute of limitations, DHCS raised nine other grounds in
its demurrer. The trial court sustained the demurrer and also granted DHCS's motion to
strike her pleading. That motion was also based on multiple grounds, including that she
failed to state facts to support various claims. In her opening brief, Wilson has not
properly raised specific challenges to those demurrer and motion to strike grounds. (Cal.
Rules of Court, rule 8.204(a)(1)(B); American Drug Stores, Inc. v. Stroh (1992) 10
Cal.App.4th 1446, 1453.) She consequently has not shown why the court could not
sustain the demurrer and strike her pleading for reasons not raised in this appeal.
(American Drug Stores, Inc., at p. 1453; Warmington Old Town Associates v. Tustin
Unified School Dist. (2002) 101 Cal.App.4th 840, 864 ["we must affirm the decision" if it
is "correct on any ground"].)

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 Other Issues
Wilson claims the trial court erred by not striking the DHCS demurrer. She
suggests it should have granted her request for a default judgment against DHCS because
the demurrer was untimely. DHCS contends these issues are waived because Wilson's
opening brief does not comply with the requirements for raising issues and record
citations under California Rules of Court, rule 8.204. DHCS is correct. But even on the
merits, the result does not change.
Wilson appears to contend the trial court did not consider or did not
properly address the issues involving her motion to strike at the January 6th hearing. But
the absence of a record of that proceeding precludes consideration of a claim of error.
(Cal. Rules of Court, rule 8.120(b).) Yet, even so, the minute order of the January 6th
hearing reflects the court "received, read and considered all briefs and declarations filed
in this cause" and took the matter under submission "with argument." Moreover, in prior
minute orders, the court ruled on several of the issues upon which her motion to strike is
based.
Wilson suggests the trial court arbitrarily refused to process her default
applications. She claims she properly served the respondents with the petition and their
defaults should have been entered. But the record does not support these claims.
A party seeking to enter a default must comply with the statutory service
requirements and file a proper proof of service with the clerk. (Pelayo v. J.J. Lee
Management Co., Inc. (2009) 174 Cal.App.4th 484, 495-497.) The trial court found
Wilson did not meet these requirements. In a November 15, 2013, minute order, the
court ruled, "The court can take no action on this Petition until the defendants have been
properly served with the process." It notified Wilson that "[s]ervice by mail is
insufficient unless it is accompanied by a Notice of Acknowledgment of Receipt as
required by [Code of Civil Procedure] section 415.30 when service is made by mail."
The statute provides that service is not complete until the acknowledgment of receipt "is
returned to the sender." (Code Civ. Proc., § 415.30, subd. (c.) Wilson's opening brief

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does not contain citations to the record to show how the trial court erred. (Cal. Rules of
Court, rule 8.204(a)(1)(C).)
On November 22, 2013, the trial court notified Wilson that it could not
process her application for default against DHCS because she did not "file proof of
service of summons and complaint." It notified her that her request to enter default
against the other respondent was "premature" because the HSA director had "30 days in
which to respond to complaint." Wilson has not shown these rulings were incorrect.
Moreover, the court later ruled the HSA director was not properly joined as a respondent
in this case. Section 10962 provides that the State Director "shall be the sole respondent
in such proceedings." (§ 10962.)
We have reviewed Wilson's remaining contentions, and we conclude she
has not shown the trial court erred.
The judgment is affirmed. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.

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 Harry Walsh, Judge

Superior Court County of Ventura

______________________________

Deborah Kay Wilson, in pro. per., for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie Weng-Guiterrez, Senior
Assistant Attorney General, Richard T. Waldow, Supervising Deputy Attorney General,
Gregory M. Cribbs, Deputy Attorney General, for Plaintiff and Respondent Toby
Douglas, as Director of the California Department of Health Care Services.
Leroy Smith, County Counsel, Robert N. Kwong, Assistant County
Counsel, for Defendant and Respondent Barry L. Zimmerman.

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