Filed 7/1/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JAY ALFORD, 

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES,

Defendant and Respondent.

 B293393

 (Los Angeles County

 Super. Ct. No. VS028361)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Lori Ann Fournier, Judge. Reversed.

Jay Alford, in pro. per., for Plaintiff and Appellant.

Peterson Bradford Burkwitz, Avi Burkwitz and Craig G. 

Marinho for Defendant and Respondent.

__________________________
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Plaintiff and appellant Jay Alford filed a grievance after 

the Los Angeles County Department of Children and Family 

Services (Department) placed his name on the Child Abuse 

Central Index. After a grievance hearing, the Department 

decided no modification should be made to the previously 

substantiated allegations of child abuse by plaintiff, resulting in 

his name remaining on the Child Abuse Central Index. The 

Department denied the grievance and served its written decision 

upon plaintiff by mail.

Plaintiff filed a petition for writ of mandate under Code of 

Civil Procedure section 1094.5, seeking to overturn the decision 

to keep his name on the Child Abuse Central Index. (All 

statutory references are to the Code of Civil Procedure.) The trial 

court granted summary judgment for the Department on the 

ground that plaintiff’s petition for writ of mandate was barred by 

the statute of limitations. Plaintiff contends the Department did

not serve notice of its decision in compliance with the statute

and, for that reason, the statute of limitations did not bar his 

petition. We agree and therefore reverse.

DISCUSSION

We review a trial court’s grant of summary judgment de 

novo. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 

1037.) This case presents an issue of statutory construction that 

is likewise subject to review de novo. (People ex rel. Lockyer v. 

Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)

Section 1094.6 sets the time limits for filing a petition for 

writ of mandate to obtain judicial review of an administrative 

decision. Section 1094.6, subdivision (b), provides that where, as 

here, the agency decision is in writing, any petition challenging 

the agency decision must be filed within 90 days of the decision 

becoming final. The decision becomes final on the date the 
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decision is served by first class mail, postage prepaid, including a 

copy of the affidavit of mailing. Section 1094.6, subdivision (d) 

provides that if the petitioner files a request for the record of the 

administrative proceedings within 10 days after the decision 

becomes final, then the time to file the petition shall be extended 

to not later than the 30th day after the date on which the record 

is either personally delivered or mailed to the petitioner. 

“The triggering point for the limitations provision in issue 

is the ‘date on which the decision becomes final.’ ” (Donnellan v. 

City of Novato (2001) 86 Cal.App.4th 1097, 1104 (Donnellan).) 

Subdivision (f) requires the agency to provide notice to the party 

that the time within which judicial review must be sought is 

governed by section 1094.6. “[T]he 90-day limitations provision 

of section 1094.6 does not begin to run until the subdivision (f) 

notice is given.” (Donnellan, at p. 1102.)

The Department gave notice to plaintiff by mail on 

October 13, 2015, and plaintiff received it on October 20, 2015. 

Plaintiff did not file his petition until February 17, 2016, 

four months after the notice was served. But the notice did not 

clearly tell plaintiff when the decision became final. First, the 

notice said the decision “is final,” and that section 1094.6 

required plaintiff to file any petition no later than “the 90th day 

on which the petition is deemed final.” But the notice also said 

the decision would become final “90 days from the date it is 

placed in the mail.” The Department’s notice stated:

“The decision made by the Director of the Department 

of Children and Family Services regarding the [Child 

Abuse Central Index] determination is final. If you disagree 

with this decision, you can file a petition or other writing for a 

Writ of Mandate pursuant to California Code of Civil Procedure 

1094.5, and request a review of the decision in the Los Angeles 

Superior Court. Timelines for filing Writs of Mandate are 
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governed by California Civil Code of Procedure 1094.6. 

This statute requires you file any petition or other paper 

seeking review no later than the 90th day on which the 

decision is deemed final. The decision will become final 

90 days from the date it is placed in the mail. However, this 

time period can be extended if, within 10 days of the decision 

becoming final, you make a request for the record of the 

proceedings and deposit an amount which is sufficient to cover 

the estimated cost of preparation of the record. If this occurs, you 

will be allowed an additional 30 days from the date the record is 

available, to file a petition.” (Boldface & italics added.) 

The Department’s notice gave plaintiff two inconsistent 

dates on which its decision became final. The notice said the 

decision was final and, in conformance with the statute, that the 

time within which judicial review must be sought is governed by 

section 1094.6. But the notice added a confusing sentence that is 

not in the statute, that “[t]he decision will become final 90 days 

from the date it is placed in the mail.”

In Donnellan, the court held an unverified cover letter did 

not meet the statutory requirement that the mailing include a 

copy of an affidavit or certificate of mailing. Consequently, the 

plaintiff’s writ petition, filed more than 90 days after the date on 

the cover letter, was not time-barred. (Donnellan, supra, 

86 Cal.App.4th at pp. 1099, 1107.) The Donnellan court reasoned 

the statute requires a verified statement of the date on which a 

decision is mailed so that there is no doubt whatever about when 

the decision becomes final. (Id. at p. 1105 [Legislature enacted 

section 1094.6, subdivision (b) “to ensure that the party seeking 

the writ had notice of the effective date the agency’s decision 

became final, the date triggering the 90-day limitations period”].) 

Donnellan and other cases explain that section 1094.6 shortened 

the applicable limitations period from three or four years to 
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90 days, and legislative history materials note that since 

section 1094.6 adopted a much shorter limitations period, 

“ ‘it was crucial that the party have proper notice.’ ” (Donnellan, 

at p. 1105, quoting Herman v. Los Angeles County Metropolitan 

Transportation Authority (1999) 71 Cal.App.4th 819, 829.)

Here, the Department’s notice created considerable doubt 

about when its decision became final. The Department concedes 

its notice confused plaintiff but contends plaintiff’s confusion over 

the language in the notice—the sentence stating that “[t]he 

decision will become final 90 days from the date it is placed in the 

mail”—could not change plaintiff’s obligation to follow the time 

limits in the statute. The Department asserts that the justquoted sentence, when read together with the rest of the notice,

could only be reasonably understood to mean that plaintiff could 

not file a writ if he waited more than 90 days from the date of the 

mailing of the decision. 

We disagree. The notice could be reasonably understood 

the way the Department construes it, but it also could be 

reasonably understood to mean the decision was not final until 

90 days after it was placed in the mail. The notice tells plaintiff 

that section 1094.6 “requires you file any petition . . . no later 

than the 90th day on which the decision is deemed final,” and 

that sentence is followed immediately by the sentence telling 

plaintiff the decision “will become final 90 days from the date it is 

placed in the mail.” We are not surprised that plaintiff 

misunderstood these words, and we do not think it is permissible 

to fault plaintiff for the Department’s lack of clarity.

In short, agencies like the Department must comply with 

statutory requirements. One of those is that, “[i]n making a final 

decision,” the agency is to provide notice that the time for seeking 

judicial review is governed by section l094.6. (§ 1094.6, subd. (f).) 

An agency must not add confusing information to the required 
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notice that could mislead affected parties about the timing for 

seeking judicial review. That is what happened here.

The Department’s notice made it reasonable for plaintiff to 

believe its decision would not become final until 90 days after it 

was mailed, and under that scenario, his petition would have 

been timely. Given the statutory goal of eliminating any doubt as 

to the date a decision is final (Donnellan, supra, 86 Cal.App.4th 

at p. 1105), we cannot countenance the Department’s creation of 

ambiguity on that very point. The Department’s notice did not 

comply with the statute, and so the statute of limitation did not

bar plaintiff’s petition.

DISPOSITION

The judgment is reversed. Plaintiff shall recover costs of 

appeal.

GRIMES, Acting P. J.

WE CONCUR:

STRATTON, J. 

WILEY, J.