Saint Francis Memorial Hospital v. State Dept. of Public Health

Filed 1/13/21; On remand
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

SAINT FRANCIS MEMORIAL
HOSPITAL,
Plaintiff and Appellant, A150545

v. (San Mateo County
STATE DEPARTMENT OF PUBLIC Super. Ct. No. CIV 537118)
HEALTH,
Defendant and Respondent.

Saint Francis Memorial Hospital (Saint Francis) petitioned for a writ of
administrative mandate after being fined $50,000 by the California
Department of Public Health (Department). The trial court sustained the
Department’s demurrer based on the statute of limitations, and judgment
was entered in the Department’s favor. Saint Francis appealed, contending
that the court erred by sustaining the demurrer because the petition was
timely, the limitations period was equitably tolled, and the Department was
equitably estopped from claiming the petition was filed late.
This court affirmed the judgment on May 23, 2018. We concluded that
the petition was not timely and that Saint Francis was not entitled to the
benefit of either equitable tolling or equitable estoppel. Our state Supreme
Court granted Saint Francis’s petition for review of our decision. (Saint
Francis Memorial Hospital v. State Dept. of Public Health (2018)
24 Cal.App.5th 617, review granted Aug. 22, 2018, S249132.)

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 On June 29, 2020, the Supreme Court issued an opinion addressing
only the issue of equitable tolling. (Saint Francis Memorial Hospital v. State
Dept. of Public Health (2020) 9 Cal.5th 710, 719 (Saint Francis).) The Court
held that the 30-day limitations period under Government Code1
section 11523 for filing a petition for a writ of administrative mandate may
be equitably tolled (Saint Francis, at p. 717), a conclusion we had assumed.
The Court also held that the first two elements of equitable tolling—timely
notice and lack of prejudice—were satisfied, but it concluded that we should
resolve whether Saint Francis satisfied the third element of reasonable and
good faith conduct by the party seeking tolling. (Ibid.) Accordingly, the
Court vacated the judgment and remanded the case for us “to determine
whether the third element of equitable tolling is satisfied.”2 (Ibid.)
On remand, the Department concedes that Saint Francis acted in good
faith, meaning that the only question we must decide is whether Saint
Francis’s actions were objectively reasonable. We conclude that they were
not, because it is not objectively reasonable for an attorney to miss a deadline
to file a petition due to a failure to appreciate easily ascertainable legal
principles. Thus, although we sympathize with Saint Francis’s counsel and
recognize it is easy to make such mistakes, we must again affirm the trial
court’s judgment.

1All subsequent statutory references are to the Government Code
unless otherwise noted.
2 Because the Supreme Court agreed with us that Saint Francis’s
petition was untimely and did not disturb our conclusion that equitable
estoppel is inapplicable, we will not reiterate our previous discussion of those
two issues except as relevant to the equitable-tolling issue.

2
 I.
FACTUAL AND PROCEDURAL
BACKGROUND
The circumstances resulting in the fine against Saint Francis, which
are discussed in the Supreme Court’s decision, are not relevant to our
decision. Instead, we set forth only those facts that bear on whether Saint
Francis acted reasonably such that it is entitled to equitable tolling. Because
this is an appeal from an order sustaining a demurrer, we accept as true all
such facts as alleged in Saint Francis’s first amended petition, the operative
version. (See Johnson v. State Water Resources Control Bd. (2004)
123 Cal.App.4th 1107, 1110.)
The Department issued the challenged decision upholding the fine on
December 15, 2015. The decision, which the petition attached as an exhibit
and incorporated by reference, was served on Saint Francis the following day.
Under the heading “ORDER” on the decision’s last page, as entered by the
Department’s then-director, it reads, “Pursuant to the authority duly
delegated to me, I hereby issue this Alternate Decision as the Final Decision
of the California Department of Public Health. [¶] This Final Decision is
signed on 12/15/15, and shall be effective immediately.”
On December 30, 2015, Saint Francis submitted a “Request for
Reconsideration” to the Department.3 Saint Francis stated that the request
was made under section 11518.5, but as our previous opinion explained
section 11518.5 applies only when a party seeks “correction of a mistake or
clerical error in the decision.” (§ 11518.5, subd. (a).) Because Saint Francis

3 We grant the Department’s request for judicial notice of Saint
Francis’s request for reconsideration and the Department’s own letter
denying the request, which we describe below. (See Evid. Code, §§ 452,
subd. (c), 459.) Although the petition did not incorporate either document,
Saint Francis does not oppose the request for judicial notice.

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sought to change the decision’s outcome, the relevant statute was actually
section 11521. (See Saint Francis, supra, 9 Cal.5th at p. 718.) Section 11521
“typically allows an agency to order reconsideration of its decision within ‘30
days after the delivery or mailing of a decision to a respondent.’ ” (Saint
Francis, at p. 718, quoting § 11521, subd. (a).) But when an agency makes a
decision effective immediately, as the Department did, it “eliminat[es] the 30-
day period for reconsideration and activat[es] the 30-day period for filing a
petition for judicial review” under section 11523. (De Cordoba v. Governing
Board (1977) 71 Cal.App.3d 155, 158; §§ 11521, subd. (a), 11523.) The parties
agree that the statute of limitations began running on December 16, 2015,
the day Saint Francis was served with the decision, and the deadline for
filing a petition for a writ of administrative mandate was therefore
January 15, 2016. (Saint Francis, at p. 718 & fn. 3; see Koons v. Placer Hills
Union Sch. Dist. (1976) 61 Cal.App.3d 484, 490 [if decision is effectively
immediately, the power to order reconsideration expires the day the decision
is served].)
Despite the unavailability of reconsideration, the Department staff
counsel litigating the case answered Saint Francis’s request on the merits on
January 8, 2016. The answer “did not raise any question as to whether the
[request] for reconsideration could have been considered,” and the
Department did not “notify [Saint Francis] that the request for
reconsideration was void or otherwise invalid” at any time “prior to
January 14, 2016,” the day on which the Department denied the request.
In the letter denying Saint Francis’s request for reconsideration,
assistant chief counsel for the Department explained, “[S]ection 11518.5,
subdivision (a) provides that within 15 days after service of a copy of the
decision on a party, but not later than the effective date of the decision, the

4
party may apply to the agency for correction of a mistake or clerical error in
the decision, stating the specific ground on which the application is made. [¶]
Since the Final Decision on this matter was issued on December 15, 2015,
and was made effective immediately, we are unable to consider your Request
for Reconsideration which is deemed denied under . . . section 11518.5,
subdivision (a).”4 The letter was dated January 14, 2016, but Saint Francis
alleges that it did not receive the letter until January 22.5
The operative petition alleges that in denying the request for
reconsideration on January 14, the Department “waited until the time to file
[the petition] had run, knowing full well that [Saint Francis] was relying on
the extension of time provided by . . . § 11518.5. [Saint Francis] relied on the
failure by [the Department] to (1) raise the objection to the invalidity of the
request for reconsideration in its opposition to the request, and (2) the failure
by [the Department] to timely notify [Saint Francis] the request for
reconsideration was deemed invalid by [the Department]. Had [the
Department] notified [Saint Francis] by objection or other timely notice, [the
petition] would have been filed by January 14, 2016. As a result of its actions
[the Department] is barred by the doctrines of Equitable Estoppel and/or
Equitable Tolling of the [statute] of limitations from arguing [the petition]
was not timely filed.” In other words, the petition alleges that Saint Francis
was entitled to equitable tolling because the Department failed to notify it
quickly enough that reconsideration of the decision was unavailable as a
matter of law because the decision was effective immediately.

4 The Department first explicitly took the position that the relevant
statute was actually section 11521 in its demurrer to Saint Francis’s original
petition.
5The copy of the letter of which we take judicial notice does not
indicate how or when it was sent to Saint Francis.

5
 On January 26, 2016, 12 days after the denial of the request for
reconsideration but 41 days after service of the Department’s final decision,
Saint Francis filed its original petition in the superior court.6 The
Department demurred on the basis that the petition was not timely under
section 11523. The trial court sustained the demurrer with “leave to amend
to allege additional facts necessary to assert the equitable tolling of the
statute of limitations.” Saint Francis then filed an amended petition, to
which the Department also demurred. The trial court again sustained the
demurrer, this time without leave to amend. It found that the petition was
untimely and that Saint Francis’s “mistake was as to law, not facts. A
mistake not caused by the [Department] is not a sufficient basis to excuse [a]
late filing.”
II.
DISCUSSION
A. The Supreme Court’s Decision
As explained by the Supreme Court, the doctrine of equitable tolling
permits courts, “ ‘in carefully considered situations’ [citation], to exercise
their inherent equitable powers to ‘soften the harsh impact of technical rules’
[citation] by tolling statutes of limitations.” (Saint Francis, supra, 9 Cal.5th
at p. 724.) Equitable tolling applies “when three ‘elements’ are present:
‘[(1)] timely notice, and [(2)] lack of prejudice, to the defendant, and
[(3)] reasonable and good faith conduct on the part of the plaintiff.’
[Citation.] These requirements are designed to ‘balanc[e] . . . the injustice to
the plaintiff occasioned by the bar of [its] claim against the effect upon the

6The Supreme Court’s opinion states that Saint Francis filed the
petition 11 days after the Department denied the request for reconsideration.
(Saint Francis, supra, 9 Cal.5th at p. 719.) The one-day difference is not
material to our decision.

6
important public interest or policy expressed by the [operative] limitations
statute.’ ” (Id. at pp. 724–725.)
In our prior opinion, we stated that “ ‘equitable tolling applies
“ ‘ “[w]hen an injured person has several legal remedies and, reasonably and
in good faith, pursues one.” ’ ” ’ [Citations.] Because ‘Saint Francis’s request
for reconsideration did not constitute the timely pursuit of an available
remedy since reconsideration was unavailable,’ [we] concluded that
section 11523’s statute of limitations shouldn’t be tolled.” (Saint Francis,
supra, 9 Cal.5th at p. 725.) The Supreme Court explained, however, that its
“past cases stop short of categorically conditioning tolling on a plaintiff’s
pursuit of a viable remedy. [Citation.] The doctrine is sufficiently supple ‘to
“ensure fundamental practicality and fairness.” ’ [Citation.] And even in
cases where a party seeking tolling pursued an alternative remedy, . . .
pursuit of a remedy ‘embarked upon in good faith, [yet] found to be defective
for some reason,’ doesn’t foreclose a statute of limitations from being tolled.”
(Ibid.) In other words, while “mistake or neglect alone”—including in the
belief that an alternative remedy was available—“doesn’t excuse a late-filed
petition[,] . . . neither is that fact, when relevant, dispositive of a party’s
equitable tolling claim; [a court] must consider it as part of the analysis of
whether a plaintiff has established equitable tolling’s elements.” (Id. at
p. 726.)
The Supreme Court then concluded that Saint Francis met the first two
elements of equitable tolling. First, the Department received timely notice of
Saint Francis’s intent to file a writ petition because Saint Francis notified the
Department of that intent on January 14, 2016, one day before the statute of
limitations expired. (Saint Francis, supra, 9 Cal.5th at p. 727.) Second, the
application of equitable tolling would not prejudice the Department by

7
“prevent[ing it] from defending a claim on the merits,” as the Department
had already “defended its assessment of the fine against Saint Francis
throughout the administrative proceedings.” (Id. at pp. 727–728.)
As for the third element, the Supreme Court explained that it
“encompass[es] two distinct requirements: A plaintiff’s conduct must be
objectively reasonable and subjectively in good faith.” (Saint Francis, supra,
9 Cal.5th at p. 729.) Whereas the objective component focuses “on whether
[the] party’s actions were fair, proper, and sensible in light of the
circumstances,” the subjective component focuses on the party’s intentions,
that is, whether the “late filing . . . was the result of an honest mistake or
was instead motivated by a dishonest purpose.” (Ibid.)
The Supreme Court did not determine whether Saint Francis met the
third element and instead remanded the matter for us to decide the issue.
(Saint Francis, supra, 9 Cal.5th at p. 730.) The Court explained: “The Court
of Appeal didn’t address whether Saint Francis’s actions were reasonable and
in good faith. At oral argument, the parties argued for the first time that
certain facts bore on the question of whether Saint Francis satisfies the third
element. But the record before us leaves some opacity about whether Saint
Francis’s conduct was reasonable and in good faith. As we’ve often done in
such situations, we remand the case for the Court of Appeal to determine
whether Saint Francis satisfies the third element, and thus is entitled to
equitable tolling.” (Ibid.)
B. The Standard of Review and the Record’s Scope
A proceeding in mandamus, including one seeking a writ of
administrative mandate under Code of Civil Procedure section 1094.5, “is
subject to the general rules of pleading applicable to civil actions.”
(Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271; Gong v. City of

8
Fremont (1967) 250 Cal.App.2d 568, 573; see Code Civ. Proc., § 1109.) “We
review an order sustaining a demurrer without leave to amend de novo,
exercising our independent judgement as to whether, as a matter of law, the
complaint (in this case, the petition) states a cause of action on any available
legal theory. [Citation.] In doing so we assume the truth of all material
factual allegations, and we are required to accept them as such, together with
those matters subject to judicial notice.” (Honig v. San Francisco Planning
Dept. (2005) 127 Cal.App.4th 520, 524.)
“[T]he ‘demurrer tests the pleading alone and not the evidence or other
extrinsic matters which do not appear on the face of the pleading or cannot be
properly inferred from the factual allegations of the complaint.’ ”7 (Bach v.
McNelis (1989) 207 Cal.App.3d 852, 864.) Specifically, documents in the
administrative record are not considered in ruling on a demurrer unless they
are “by appropriate reference made a part of the complaint or petition.”
(Kleiner v. Garrison (1947) 82 Cal.App.2d 442, 445–446; see San Remo Hotel
v. City and County of San Francisco (2002) 27 Cal.4th 643, 649, 653 [where
petition for writ of administrative mandate was pled as one cause of action in
civil complaint and resolved on the merits, administrative record could not be
considered in determining whether other causes of action were properly
dismissed on demurrer].) By the same token, portions of the administrative
record that the petition does not incorporate cannot be used to cure
deficiencies in the petition. Thus, aside from the documents Saint Francis
incorporated in the operative petition, we do not consult the administrative
record in determining whether Saint Francis is entitled to equitable tolling.

7 At oral argument before the Supreme Court, the parties discussed for
the first time some potentially relevant circumstances, such as whether the
Department’s normal practice is to make its decisions effective immediately.
Given the limited nature of our review, such “facts” are not before us.

9
(See Kleiner, at pp. 445–446; Tringham v. State Board of Education (1955)
137 Cal.App.2d 733, 735–736.) This is particularly appropriate because the
administrative record is not before us, as Saint Francis did not designate it as
part of the record on appeal.
We recognize that consulting the entire administrative record when
reviewing an order sustaining a demurrer to a petition for a writ of
administrative mandate might be appropriate in other circumstances. If
Saint Francis claimed that the trial court abused its discretion by not
granting leave to amend the petition a second time, we would have to decide
“whether there is a reasonable possibility [Saint Francis] could cure the
defect with an amendment.” (Schifando v. City of Los Angeles (2003)
31 Cal.4th 1074, 1081.) Portions of the administrative record not currently
incorporated into the petition might directly bear on that issue. But “[i]t is
the plaintiff’s burden on appeal to show in what manner it would be possible
to amend a complaint to change the legal effect of the pleading; we otherwise
presume the pleading has stated its allegations as favorably as possible.”
(Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962,
fn. omitted.) As Saint Francis does not seek to allege further facts to support
its claim of equitable tolling, and notwithstanding “some opacity” in the
record as mentioned by the Supreme Court (Saint Francis, supra, 9 Cal.5th
at p. 730), we confine the scope of our review as stated above.
C. Saint Francis Is Not Entitled to Equitable Tolling Because Its
Actions Were Not Objectively Reasonable.
On remand, the Department concedes that Saint Francis acted in
subjective good faith. Thus, the only question we must decide is whether
Saint Francis’s actions were “objectively reasonable under the
circumstances.” (Saint Francis, supra, 9 Cal.5th at p. 729.) We conclude

10
they were not, since Saint Francis missed the deadline to file a petition
because of its failure to appreciate easily ascertainable legal principles.
1. Saint Francis’s legal mistake
We begin by retracing how Saint Francis came to file the original
petition in an untimely manner. The starting point is the applicable statute
of limitations. California’s Administrative Procedure Act (§ 11340 et seq.)
(APA) generally governs adjudicative decisions by the Department (Health &
Saf. Code, § 131071). With certain exceptions not relevant here, a petition for
a writ of administrative mandate seeking judicial review of a Department
decision “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.” (§ 11523.) Thus, the
30-day limitations period begins running on “the last day on which
reconsideration can be ordered.”
The next step in ascertaining the deadline to file a writ petition is to
determine the last day that reconsideration can be ordered. Section 11521
provides the answer. Under that statute, if an agency does not grant a stay
to extend the time available for reconsideration,“[t]he power to order a
reconsideration shall expire 30 days after the delivery or mailing of a decision
to a respondent, or on the date set by the agency itself as the effective date of
the decision if that date occurs prior to the expiration of the 30-day
period. . . . If no action is taken on a petition [for reconsideration] within the
time allowed for ordering reconsideration, the petition shall be deemed
denied.” (§ 11521, subd. (a); see § 11519, subd. (a) [decision is “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”].) In short, the

11
power to order reconsideration expires 30 days after the decision is served or
“on the date set by the agency itself as the effective date of the decision,”
whichever is earlier. As the Department points out, decisions going back
decades confirm the clear meaning of this language. (E.g., Bonnell v. Medical
Board (2003) 31 Cal.4th 1255, 1262; Eichman v. Escondido Union High
School Dist. (1964) 61 Cal.2d 100, 102; Moran v. Board of Medical Examiners
(1948) 32 Cal.2d 301, 304.)
To decide which alternative date applies, the next step is to determine
whether the agency made the effective date of the decision earlier than 30
days after the decision was served. As discussed above, the last page of the
Department’s decision unambiguously stated that the decision was “effective
immediately.” Accordingly, under the plain terms of the relevant statutes,
reconsideration was unavailable, and the statute of limitations immediately
began to run. To believe otherwise, Saint Francis must not have carefully
read the Department’s decision, the relevant statutes, or both.
We recognize that Saint Francis incorrectly believed that the applicable
statute for seeking reconsideration was section 11518.5, not section 11521.
But that mistake did not cause Saint Francis to miss the deadline for filing
its writ petition, and it therefore does not affect our analysis of whether the
late filing was objectively reasonable. Under both statutes, a party cannot
seek modification after a decision’s “effective date”: under section 11518.5,
because a party “may apply to the agency for correction” “not later than the
effective date of the decision” (§ 11518.5, subd. (a)), and under section 11521,
because the agency’s “power to order a reconsideration shall expire” no later
than “the effective date of the decision.” (§ 11521, subd. (a).) Thus, we agree
with the Department that Saint Francis’s mistake in bringing its request for
reconsideration under section 11518.5 instead of section 11521 was

12
ultimately “immaterial,” since under either statute the fact that the decision
was effective immediately prevented Saint Francis from seeking
reconsideration.8
Having erroneously concluded that reconsideration was available, Saint
Francis filed its request for reconsideration on December 30, two weeks after
the decision was served.9 Nine days later, on January 8, the Department’s
staff counsel filed an answer on the merits, and on January 14, the
Department denied the request on the basis that reconsideration was
unavailable. According to Saint Francis, it did not receive the denial until
January 22. This was apparently the point at which Saint Francis realized
that reconsideration had never been available and that the petition was
therefore due on January 15. Saint Francis then promptly filed the original
petition on January 26.
2. Saint Francis’s legal mistake was not reasonable.
We now turn to whether Saint Francis’s actions were objectively
reasonable. Drawing a comparison to assessing claims of ineffective

8 Arguably, if a party mistakenly believed that section 11518.5
governed reconsideration, it could then interpret the agency’s unilateral
power to “modify[] the decision . . . within 15 days after issuance of the
decision” (§ 11518.5, subd. (d)) to extend “the last day on which
reconsideration can be ordered” (§ 11523) such that a petition seeking review
of a decision made “effectively immediately” would be due 45 days, not 30
days, after the decision issued. But that is not the calculation Saint Francis
made. In opposing both demurrers and in its original opening brief before
this court, Saint Francis maintained that its filing of the request for
reconsideration was what extended the deadline by 15 days, not the
possibility the Department would modify the decision on its own motion.
9Had the Department’s decision not been effective immediately, the
request would have been timely under section 11518.5, which sets a 15-day
deadline from service of a not-yet-effective decision to seek correction.
(§ 11518.5, subd. (a).)

13
assistance of counsel, the Supreme Court explained that this standard
focuses on whether a “party’s actions were fair, proper, and sensible in light
of the circumstances.” (Saint Francis, supra, 9 Cal.5th at p. 729, citing
People v. Mai (2013) 57 Cal.4th 986, 1009 [a “defendant must demonstrate
. . . counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms”].) Here, in
assessing whether Saint Francis acted reasonably, we take into account that
it was represented by counsel throughout the proceedings. (See, e.g.,
Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 931 (Collier)
[requirement that plaintiff acted reasonably and in good faith “likewise
requires that [plaintiff’s] lawyers have acted reasonably and in good faith
since they made most of the decisions about whether and what to file”].)
In arguing that its actions were objectively reasonable, Saint Francis
relies primarily on a quartet of decisions concluding that equitable tolling
applied. First, in Elkins v. Derby (1974) 12 Cal.3d 410 (Elkins), the plaintiff
was injured while working for the defendants and “reasonably and in good
faith” filed a workers’ compensation claim. (Id. at p. 412.) The claim was
ultimately denied on the basis that the plaintiff was not “an ‘employee’ at the
time of his injury.” (Ibid.) He promptly sued the defendants, but the
superior court determined the statute of limitations barred the suit because it
was not brought within a year of the injury. (Ibid.) The Supreme Court held
that the statute of limitations was tolled for the period during which the
plaintiff pursued his workers’ compensation claim, even though he could have
simultaneously pursued a civil action. (Ibid.)
In Addison v. State (1978) 21 Cal.3d 313 (Addison), the plaintiffs timely
sued the defendants in federal court, alleging claims under federal and state
law. (Id. at pp. 315–316.) After the statute of limitations for an action in

14
state court expired, the defendants moved to dismiss the federal action for
lack of jurisdiction, and the plaintiffs then filed suit in state court. (Ibid.)
The federal action was subsequently dismissed “without prejudice to the
prosecution of the superior court proceeding,” but the superior court
sustained the defendants’ demurrer on the ground that the state complaint
was untimely. (Id. at p. 316.) Applying equitable tolling, the Supreme Court
held that the filing of the federal action suspended the running of the state
limitations period. (Id. at p. 315.) In concluding that the doctrine’s third
element of reasonable and good faith conduct “seemingly [was] present,” the
Court observed, “[T]he federal court, without prejudice, declined to assert
jurisdiction over a timely filed state law cause of action and [the] plaintiffs
thereafter promptly asserted that cause in the proper state court.
Unquestionably, the same set of facts may be the basis for claims under both
federal and state law. We discern no reason of policy which would require
plaintiffs to file simultaneously two separate actions based upon the same
facts in both state and federal courts since ‘duplicative proceedings are surely
inefficient, awkward and laborious.’ ” (Id. at p. 319.)
In McDonald v. Antelope Valley Community College Dist. (2008)
45 Cal.4th 88 (McDonald), the Supreme Court held that the statute of
limitations on a plaintiff’s complaint under the California Fair Employment
and Housing Act (§ 12900 et seq.) (FEHA) was equitably tolled while the
plaintiff pursued the defendant college district’s internal procedures
governing discrimination complaints. (McDonald, at pp. 96–98.) The
plaintiff brought her internal complaint within the one-year limitations
period, which ran from the date of the wrongful acts, and the internal
proceeding was ongoing when she filed the FEHA administrative complaint.
(Id. at pp. 98–99; see § 12960, subd. (e).) Even though the internal complaint

15
was voluntary and did not prevent the plaintiff from filing a FEHA
complaint, this circumstance did not render equitable tolling unavailable.
(McDonald, at pp. 101–104.)
Finally, in Collier, the plaintiff timely filed a workers’ compensation
claim after he was injured doing his job as a firefighter. (Collier, supra,
142 Cal.App.3d at pp. 920–921.) Meanwhile, about four-and-a-half months
after the injury, the defendant city fired the plaintiff. (Id. at p. 920.) At the
time, the fire chief incorrectly advised the plaintiff that he was not entitled to
a disability pension because he had not worked for the city long enough.
(Ibid.) The city code required that a disability pension application be filed
within six months from the date of injury, but the city sent such an
application to the plaintiff two months later, after the six-month period had
expired. (Id. at pp. 920, 922.) The plaintiff ultimately filed the application
several months later, after the city purported to refund his pension
contributions. (Id. at pp. 920–921.) The Second District Court of Appeal held
that the statute of limitations on the disability pension claim was equitably
tolled while the workers’ compensation proceeding was pending. (Id. at
p. 919.)
The decisions on which Saint Francis relies all addressed whether the
statute of limitations was equitably tolled while an alternative remedy was
pursued. As the Supreme Court noted in Saint Francis, equitable tolling “is
sufficiently supple ‘to “ensure fundamental practicality and fairness,” ’ ”
meaning that it may be applied in cases that do not involve the pursuit of an
“alternative remedy” at all. (Saint Francis, supra, 9 Cal.5th at p. 725.) Here,
however, Saint Francis has never argued that it is entitled to equitable
tolling for some reason other than its filing of the request for reconsideration.
Thus, it remains appropriate to analyze Saint Francis’s claim primarily

16
within the framework of decisions involving the ultimately unsuccessful
pursuit of another remedy.
Initially, we identify two aspects of Saint Francis’s actions that were
objectively reasonable. First, given its erroneous assumption that
reconsideration was available, Saint Francis reasonably waited to file its writ
petition until after the Department ruled on its request for reconsideration.
Although seeking reconsideration or correction of an agency decision is not a
prerequisite to filing a petition for a writ of administrative mandate
(§§ 11518.5, subd. (a), 11523), case law makes clear that “equitable tolling
may extend even to the voluntary pursuit of alternate remedies,” and a
plaintiff need not pursue “duplicative” proceedings to be entitled to it.
(McDonald, supra, 45 Cal.4th at pp. 101–102; see Addison, supra, 21 Cal.3d
at p. 319; Elkins, supra, 12 Cal.3d at p. 412.)
Second, Saint Francis filed its writ petition reasonably quickly upon
learning that its request for reconsideration was denied on the basis that the
Department’s decision had been effective immediately, meaning the statute of
limitations had run. As Saint Francis points out, Collier stated that “if a
plaintiff delayed filing the second claim until the statute on that claim had
nearly run, even after crediting the tolled period, [its] conduct might be
considered unreasonable.” (Collier, supra, 142 Cal.App.3d at p. 926; see
Addison, supra, 21 Cal.3d at p. 319.) We agree with Saint Francis that its
“conduct once the mistake was recognized” was reasonable.
Having concluded that these two circumstances do not disqualify Saint
Francis from obtaining equitable tolling, we turn to whether the balance of
Saint Francis’s conduct was objectively reasonable, and we conclude it was
not. We previously determined that Saint Francis was not entitled to
equitable tolling because its “ ‘request for reconsideration did not constitute

17
the timely pursuit of an available remedy since reconsideration was
unavailable,’ ” but the Supreme Court explained that an alternative remedy
need not be “viable” to support equitable tolling. (Saint Francis, supra,
9 Cal.5th at p. 725.) Even if the remedy is “futile” or later “ ‘found to be
defective for some reason,’ ” a plaintiff’s pursuit of it may toll the statute of
limitations. (Ibid.) In other words, if a plaintiff pursues a remedy out of a
mistaken belief that it is viable, that mistake does not necessarily establish
that the plaintiff’s conduct was unreasonable. (Id. at pp. 725–726.)
The remedy Saint Francis pursued here, a reconsideration of the
Department’s decision, is different from the alternative remedies at issue in
Elkins, Addison, McDonald, and Collier. Unlike a workers’ compensation
claim, a federal suit, or an internal administrative remedy, reconsideration
under the APA is a precursor to the triggering of the relevant statute of
limitations. Under section 11523, the limitations period for filing a writ
petition does not begin to run until “the last day on which reconsideration can
be ordered.” Thus, it is more accurate to say that reconsideration “affects the
antecedent issue of when the [30-day] limit begins to run, not the availability
of tolling.” (Nutraceutical Corp. v. Lambert (2019) 586 U.S. __, 139 S.Ct. 710,
713, 717 [motion for reconsideration of class-certification order cannot
support equitable tolling of deadline to appeal order].)10 Our prior statement

10 Our state Supreme Court’s decision cites several federal cases,
including on the issue of reasonable and good faith conduct (Saint Francis,
supra, 9 Cal.5th at pp. 720–724, 728–730), and we find it appropriate to do
the same. We note, however, that equitable tolling under federal common
law has different elements than that under California common law. Namely,
a federal “litigant seeking equitable tolling bears the burden of establishing
two elements: (1) that [it] has been pursuing [its] rights diligently, and
(2) that some extraordinary circumstance stood in [its] way.” (Pace v.
DiGuglielmo (2005) 544 U.S. 408, 418.) In turn, an “extraordinary
circumstance” must be “beyond [a litigant’s] control” (Menominee Indian

18
that reconsideration was not an “available remedy” conveyed not only that
Saint Francis’s pursuit of it was ultimately unsuccessful but, more
fundamentally, that reconsideration was not even an “alternative remedy,” at
least in any way akin to those at issue in decisions cited by Saint Francis.
By holding that equitable tolling can be applied in cases that do not
involve the pursuit of an alternative remedy, the Supreme Court’s decision
contemplates that equitable tolling might be available when a party
mistakenly pursues a remedy that is antecedent to the triggering of the
statute of limitations, as reconsideration is here. (Saint Francis, supra,
9 Cal.5th at p. 725.) But Saint Francis’s legal mistake was not objectively
reasonable because section 11523 explicitly ties the limitations period to the
availability of reconsideration. To the extent that the pursuit of another
remedy was a “mistake” in Elkins, Addison, McDonald, and Collier, the
mistake did not lie in calculating the statute of limitations period for the
claim ultimately pursued. The plaintiffs in those cases did not miss the
deadline to file suit because they miscalculated that deadline, they missed
the deadline because they pursued alternative remedies that turned out not
to be viable.

Tribe v. United States, 577 U.S. __, 136 S.Ct. 750, 756), a standard the action
of one’s own attorney generally does not meet unless the attorney’s
“professional misconduct . . . amount[s] to egregious behavior.” (Holland v.
Florida (2010) 560 U.S. 631, 651, italics added.) Clearly, the conduct of Saint
Francis’s counsel does not meet this standard. (See, e.g., Lawrence v. Florida
(2007) 549 U.S. 327, 336 [“counsel’s mistake in miscalculating the limitations
period” does not qualify as extraordinary circumstance]; Lombardo v. United
States (7th Cir. 2017) 860 F.3d 547, 554 [attorney’s error in determining
deadline, “whether the attorney doesn’t do enough research, relies on the
wrong type of source, or just gets it plain wrong,” is not egregious misconduct
warranting equitable tolling].)

19
 Counsel’s mistake here was different, because it lay in missing the
significance of the decision’s statement that the decision was effective
immediately, missing the statutory language saying that reconsideration is
unavailable for decisions that are effective immediately, and not
extrapolating from these circumstances that the deadline to seek judicial
review began running immediately. Thus, we reject Saint Francis’s proposed
“rule” that a plaintiff’s actions are reasonable so long as the plaintiff
mistakenly “choos[es] a legal remedy which is a generally recognized option
to pursue, even [though] the choice, in retrospect, because of specific facts,
was not available.” This proposed rule does not account for whether the legal
mistake itself was objectively reasonable, which we conclude the mistake
here was not. (See J.M. v. Huntington Beach Union High School Dist. (2017)
2 Cal.5th 648, 657.)
The only aspect of this case that distinguishes it from any other in
which counsel simply failed to ascertain the applicable limitations period is
that the mistake “appears to have been shared by the Department”—at least,
by staff counsel for the Department.11 (Saint Francis, supra, 9 Cal.5th at
p. 731.) Saint Francis argues that the Department “created the confusion for
both counsel” by making the decision effective immediately and that this “is a
factor which is relevant to deciding whether [Saint Francis] acted
reasonably.” Although we can imagine circumstances under which the fact
that the attorney for the opposing party made the same legal mistake might

11The APA “strictly limit[s] contacts between an agency’s prosecutor
and the officers the agency selects to preside over hearings and ultimately
decide adjudicative matters.” (Department of Alcoholic Beverage Control v.
Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 5.) Although
neither party addresses the issue, this principle raises questions about the
extent to which staff counsel’s mistake can be attributed to the Department
or could have reasonably misled Saint Francis.

20
suggest that a mistake was objectively reasonable, the operative petition here
simply provides no basis for inferring that the Department created any
particular “confusion” by making its decision effective immediately.
The Supreme Court’s opinion suggests that an email exchange between
the parties’ counsel might also bear on whether Saint Francis’s actions were
objectively reasonable, because it shows that Saint Francis’s “mistake about
the filing deadline under section 11523 . . . appears to have been shared by
the Department.” (Saint Francis, supra, 9 Cal.5th at p. 731.) This exchange
involved an email from Saint Francis’s counsel sent on January 14, 2016, and
a response from the Department’s staff counsel sent on January 19. (Id. at
p. 718.) Even if we assume this exchange is properly before us, it does not
support a determination that Saint Francis’s actions were objectively
reasonable.12 It is true that we can infer from the Department’s answer on
the merits to the request for reconsideration that, at least until the request
was denied, staff counsel also mistakenly believed that reconsideration was
available. But we can infer little from this attorney’s January 19 email to
Saint Francis, because it was not sent until after the deadline for filing the
petition had passed, and it therefore did not cause Saint Francis to miss that
deadline.
In any event, figuring out the correct deadline was a relatively simple
matter of reading the decision and the applicable statutes, and the fact that
two attorneys failed to pay close attention does not seem to us to make the
mistake any more reasonable. This is especially true because Saint Francis
had far more incentive to be careful than did the Department’s staff counsel,

12 Saint Francis attached copies of these emails as an exhibit to its
opposition to the demurrer to its original petition, but in amending the
petition Saint Francis did not add allegations about the exchange or attach
copies of the emails.

21
as incorrectly calculating the deadline could negatively impact only Saint
Francis’s rights.
Finally, our conclusion that Saint Francis’s actions were not objectively
reasonable is consistent with the Supreme Court’s admonition that
“[e]quitable tolling applies only ‘in carefully considered situations to prevent
the unjust technical forfeiture of causes of action.’ [Citation.] It does not . . .
‘extend to . . . garden variety claim[s] of excusable neglect.’ . . . Limiting the
doctrine’s applicability to only those cases in which a party demonstrates
objective reasonableness and subjective good faith precludes the doctrine
from being ‘a cure-all for an entirely common state of affairs,’ while ensuring
that it provides a narrow form of relief in ‘unusual circumstances’ when
justice so requires.” (Saint Francis, supra, 9 Cal.5th at pp. 729–730.) Saint
Francis’s counsel could have easily determined the applicable deadline by
paying attention to the wording of the decision and a few relatively brief
statutes, and the Department’s failure to correct him did not render the
mistake objectively reasonable. If these circumstances do not present a
“ ‘garden variety claim[] of excusable neglect’ ” (id. at p. 730), we do not know
what would.
III.
DISPOSITION
The judgment is affirmed. Neither party is awarded costs on appeal.
(See Cal. Rules of Court, rule 8.278(a)(5).)

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Banke, J.

_________________________
Sanchez, J.

Saint Francis Memorial Hospital v. State Dept. of Public Health A150545

23
Trial Court:

Superior Court of the County of San Mateo

Trial Judge:

Hon. George A. Miram

Counsel for Plaintiff and Appellant:

Cyrus A. Tabari, Sheuerman, Martini, Tabari, Zenere & Garvin

Counsel for Defendant and Respondent:

Xavier Becerra, Attorney General

Cheryl L. Feiner, Senior Assistant Attorney General

Gregory D. Brown, Supervising Deputy Attorney General

Cristina M. Matsushima, Deputy Attorney General

Saint Francis Memorial Hospital v. State Dept. of Public Health A150545

24