Filed 5/18/16 Ottovich v. City of Fremont CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


HARVEY OTTOVICH,
         Plaintiff and Appellant,
v.                                                                   A140404
CITY OF FREMONT,                                                     (Alameda County
         Defendant and Respondent.                                   Super. Ct. No. RG13683532)



         Following an administrative hearing regarding various municipal code violations,
appellants Harvey Ottovich and Mark Ottovich were ordered to remedy the nuisances on
two adjacent real properties1 they owned in the City of Fremont (“City”). Appellants
then petitioned for writ of administrative mandate against the City. The City demurred
on the ground the petition was barred by the statute of limitations set out in Code of Civil
Procedure2 section 1094.6 and the demurrer was sustained without leave to amend.
         On appeal, appellants contend section 1094.6 is not a jurisdictional bar to their
petition as that section does not specifically preclude tolling or estoppel. They claim they
alleged facts, namely the “unclean hands” of the City, which constituted grounds for
either tolling the statute of limitations or estopping the City from asserting a statute of
limitations defense. We affirm.



1
         One of the properties has since been sold.
2
         All further undesignated statutory references are to the Code of Civil Procedure.

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                                   I. BACKGROUND
       In July 2012, appellants owned two adjoining properties in Fremont, 37255
Mission Boulevard, a multi-unit rental property (Rental Property), and 37231 Mission
Boulevard, the primary residence of appellant Mark Ottovich (Residential Property). On
July 20, 2012, a City code enforcement officer posted a Notice and Order to Correct
Nuisance on all units at the Rental Property (Notice 1). Notice 1 stated that repairs and
extensive construction had been completed on the Rental Property without the requisite
permits and that such improvements were not in compliance with various building code
standards. The City posted a Notice to Vacate on the units on the Rental Property,
specifying that the structures be vacated by July 30, 2012.
       While posting the notices on the Rental Property, the code enforcement officer and
a building official noticed additional municipal code violations on the adjacent
Residential Property. These violations included an unsafe and non-code compliant
electrical system, severe dilapidation, a missing guard rail on the second story balcony,
an improper landing at the rear exit door, lack of required garbage service, excessive
storage of non-operational vehicles, and habitation in a motor home. The code
enforcement officer mailed and posted Notice 2 on July 27, 2012.
       On July 23, 2012, appellants filed an appeal with the City clerk. Although the
appeal did not specify the property notice at issue, the City sought to give appellants the
broadest coverage and treated the appeal as applying to both properties and both notices.
       The hearing was originally set for August 14, 2012. (See Fremont Mun. Code
§ 8.60.130.) At appellants’ request, the hearing was continued several times. After a
failed settlement attempt and two separate withdrawals by appellants’ counsel, the matter
proceeded to hearing on November 14, 2012. Appellant Mark Ottovich appeared at the
hearing and left before the presentation of evidence. The hearing proceeded with the City
presenting its case.
       On January 18, 2013, the hearing officer signed and mailed her written decision
(Decision). The Decision notified appellants that any appeal to the superior court must
be filed no later than 90 calendar days from the mailing of the Decision. Thereafter,


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appellants filed a petition for writ of administrative mandate (§ 1094.5) on June 13, 2013,
146 days after the Decision was mailed. In the petition, appellants alleged that the
Decision was invalid because it was issued more than 10 days after the close of the
administrative hearing in violation of Fremont Municipal Code section 8.60.150,
subdivision (b)(5) (“The statement of decision shall be completed and mailed to the
parties no later than 10 calendar days after close of the hearing . . . .”)
       The City demurred to appellants’ petition, arguing it was time-barred pursuant to
section 1094.6 because it was not filed within 90 days after the hearing officer’s
Decision, or by April 18, 2013. In opposition, appellants argued that the City should be
estopped from asserting a statute of limitations defense because the hearing officer
committed misconduct by issuing a late ruling in violation of the 10-day period set forth
in Fremont Municipal Code section 8.60.150, subdivision (b)(5). The trial court granted
the demurrer without leave to amend on the grounds that the petition was untimely. In so
ruling, the court, citing, Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 576, 578
(Tielsch) held that section 1094.6 “is a procedural statute of limitations and
consequentially jurisdictional. . . . Moreover, even if tolling and/or estoppel could be
applied here, Petitioners have not demonstrated how they would allege such facts in
support.” The trial court dismissed the petition and the instant appeal followed.
                                      II. DISCUSSION
A.     Standard of Review
       “Issues of statutory interpretation are questions of law subject to our independent
or de novo review. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311; People ex rel.
Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; see California Veterinary
Medical Assn. v. City of West Hollywood (2007) 152 Cal.App.4th 536, 546.) We are
guided by well-established principles of statutory construction. Our fundamental task is
to ascertain the Legislature’s intent and thereby effectuate the purpose of the statute.
(Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147; Smith v.
Superior Court (2006) 39 Cal.4th 77, 83.) ‘We begin with the statutory language because
it is generally the most reliable indication of legislative intent.’ (Miklosy v. Regents of


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University of California (2008) 44 Cal.4th 876, 888.) ‘If there is no ambiguity, then we
presume the lawmakers meant what they said, and the plain meaning of the language
governs.’ (Day v. City of Fontana (2001) 25 Cal.4th 268, 272; see also Smith [v.
Superior Court, supra], at p. 83.)
       “Further, in construing section 1094.6, ‘we are mindful that it is a procedural
limitations provision and, consequently, jurisdictional.’ (Donnellan v. City of Novato
(2001) 86 Cal.App.4th 1097, 1103.) Although statutes of limitations in general serve to
prevent the assertion of stale claims that would be difficult to defend because of the
passage of time, such technical defenses ‘should be strictly construed to avoid the
forfeiture of a person’s rights.’ (Ibid.; see Herman v. Los Angeles County Metropolitan
Transportation Authority (1999) 71 Cal.App.4th 819, 826-827.) ‘The two public policies
identified above—the one for repose and the other for disposition on the merits—are
equally strong, the one being no less important or substantial than the other.’ (Norgart v.
Upjohn Co. (1999) 21 Cal.4th 383, 396.) ‘To establish any particular limitations period
under any particular statute of limitations entails the striking of a balance between the
two. To establish any such period under any such statute belongs to the Legislature alone
[citation] subject only to constitutional constraints.’ (Id. at pp. 396-397.)” (Blaich v.
West Hollywood Rent Stabilization Dept. (2011) 195 Cal.App.4th 1171, 1175.)

B.     Appellants’ Petition Was Untimely

       Section 1094.6, subdivisions (a) and (b) specify that a petition for judicial review
of “any decision of a local agency . . . or . . . board” must be filed within 90 days of the
local agency’s final determination. Subdivision (f) provides that “[i]n making a final
decision . . . the local agency shall provide notice to the party that the time within which
judicial review must be sought . . . .”
       The City denied appellants’ appeal on January 18, 2013. That same day appellants
were mailed the notice advising them of the City’s denial of their appeal and that they
had 90 days from January 18, 2013 within which to seek judicial review. Applying the
plain language of the statute, appellants had until April 18, 2013 to seek judicial review.


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They, however, did not file their writ petition until June 13, 2013, 146 days after the
Decision was mailed. Despite the fact that they filed their petition 56 days after the
statute of limitations had run, appellants insist that their petition should be considered
timely in light of the so-called “unclean hands” of the City. Appellants insist that the
City’s January 18, 2013 notice was insufficient to start the 90-day period running
because, pursuant to Fremont Municipal Code section 8.60.150, subdivision (b)(5), the
hearing officer’s Decision should have been filed within 10 days of the November 14,
2012 hearing or November 24, 2012. Based on this 55-day delay, appellants argue that
the statute of limitations should have been tolled.
       Appellants cite no authority for their novel “two wrongs make a right” theory of
tolling the 90-day period set forth in section 1094.6. On the contrary, the established rule
is that a trial court “has no jurisdiction to entertain section 1094.6 petitions unless they
are filed on or before the 90th day after the local agency’s decision.” (Tielsch, supra, 160
Cal.App.3d at p. 579.)
       Tielsch, supra, 160 Cal.App.3d 576, on which the trial court here relied, is
instructive. In Tielsch, a former police chief of the City of Anaheim petitioned the
superior court for a writ of mandate after the city denied his application for disability
retirement. (Id. at p. 577.) The trial court denied his petition on the basis that it was filed
after the 90-day statute of limitations period had run. (Ibid.) The petitioner argued that
section 1013, subdivision (a), “extended the period within which he could petition for [a]
writ of mandate by five days.” (Tielsch, supra, 160 Cal.App.3d at p. 578.) The appellate
court held that section 1013 was not applicable because the section 1094.6 time period
for filing a writ of mandate petition was “a procedural statute of limitations and
consequently jurisdictional[,]” which could not be extended. (Ibid.) The Tielsch court
stated: “Harsh as the result may be, the conclusion that section 1013 does not apply in
this situation is, in our view, inescapable. Section 1094.6 simply does not lend itself to
the interpretation urged by [petitioner]. Although the bench and bar would undoubtedly
welcome a statute that would universally extend time whenever notices are mailed in



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place of the dangerous duality of the current system, that change must come from the
Legislature, not the courts.” (Id. at p. 580.)
       Farmer v. City of Inglewood (1982) 134 Cal.App.3d 130 (Farmer) relied on by
appellants does not compel a contrary conclusion. In Farmer, a city employee was
discharged for disciplinary reasons but the notice of final action did not specify the
reasons for the termination. (Id. at p. 135.) The employee, thereafter timely requested a
hearing. (Id. at p. 141.) The city waited 70 days before denying the request, prompting
the employee to petition for a writ of mandate to compel the city to hold a hearing.
(Ibid.) The trial court granted the writ and the city appealed, arguing, among other
things, the petition was time-barred by section 1094.6. (Id. at pp. 136, 140-141.) The
appellate court, while acknowledging the principle that “ ‘[t]ime to institute judicial
review of administrative action is jurisdictional . . . .’ [citations],” rejected the city’s
statute of limitations defense. (Id. at p. 141.) In so holding, the court explained that
although the period of limitations on the employee’s cause of action technically accrued
on the date of the notice of final action, the statute of limitations was tolled by the
employee’s timely request for a legally required hearing and did not run until his request
was refused 70 days after the date of the notice. (Id. at p. 141.) And, since the petition
for mandate was filed 29 days after the date of refusal, it was filed within the 90-day
period of limitations set forth in section 1094.6. (Ibid.)
       Here, unlike in Farmer, the City did not refuse to hear appellants’ claims and it
did not prejudicially delay in adjudicating those claims.3 Quite the contrary, upon
receiving appellants’ appeal of the nuisance determination, the City promptly set the
matter for a hearing as required by Fremont Municipal Code section 8.60.130. Although
the City delayed in issuing its ruling once the matter had been submitted, this ruling was
not final until January 18, 2013, the date its written Decision was issued and mailed to
appellants. (See § 1094.6, subd. (b); Donnellan v. City of Novato, supra, 86 Cal.App.4th
at p. 1105.) It is this date that triggered the 90-day limitations period. (Ibid.) In other

3
       The record reflects that the hearing was continued several times at the request of
appellants and their counsel.

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words, the delay by the City in issuing its Decision did not toll the statute of limitations
because the clock did not begin to run until the written Decision was sent to appellants.
Accordingly, we conclude that any delay by the City in issuing its final Decision could
not have had any effect on the limitations period that had not yet even commenced.
C.     The City Is Not Equitably Estopped
       Appellants contend that the City should be estopped from asserting the statute of
limitations bar of section 1094.6 because of its “unclean hands.” The gist of the estoppel
argument is that the hearing officer violated the Fremont Municipal Code section
8.60.150, subdivision (b)(5), by rendering the Decision approximately 53 days late.
Appellants’ position is that City should be estopped because “it did not even follow its
own [c]ode.”
       An agency may be estopped from asserting a time bar statute if the agency induced
the petitioner’s delay. (Elliott v. Contractors’ State License Bd. (1990) 224 Cal.App.3d
1048, 1053.) However, estoppel can only be invoked against a public agency “if [it]
acted in an unconscionable or unreasonable manner or intended to, or did, take unfair
advantage of the plaintiff, and only as long as estoppel will not nullify a strong public
policy rule adopted for the public’s benefit. [Citations.]” (1 Robinson, Cal. Admin.
Mand: Statute of Limitations (Cont.Ed.Bar. 3d ed. 2003) § 9.29, p. 9-24.2.) It has been
held that such estoppel will only apply when the agency engages in affirmative conduct
causing the petitioner to delay filing an action, not the mere passive failure of the agency
to act or respond. (Id. at p. 9-25; Elliott v. Contractors’ State License Bd., supra, 224
Cal.App.3d at p. 1053.)
       The elements of estoppel have been set forth by our Supreme Court as follows:
“ ‘The doctrine of equitable estoppel is founded on concepts of equity and fair dealing. It
provides that a person may not deny the existence of a state of facts if he intentionally led
another to believe a particular circumstance to be true and to rely upon such belief to his
detriment. The elements of the doctrine are that (1) the party to be estopped must be
apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so
act that the party asserting the estoppel has a right to believe it was so intended; (3) the


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other party must be ignorant of the true state of facts; and (4) he must rely upon the
conduct to his injury. (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 488-489.)’
[Citations.]” (City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279; see also
Superior Dispatch v. Insurance Corporation of New York (2010) 181 Cal.App.4th 175,
187.)
        Appellants received the City’s notice of January 18, 2013, notifying them that the
Decision became effective that date and advising them that they had 90 days to seek
judicial review in the superior court. This notice accurately notified appellants of their
rights and the time within which to assert them. More importantly, the City did not
misrepresent or conceal any facts from appellants, nor did the City take any affirmative
act that caused appellants to delay filing their petition. (Elliott v. Contractors’ State
License Bd., supra, 224 Cal.App.3d at p. 1053.) The City did not mislead plaintiffs. (See
Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567, 582.) Nothing the City
did or did not do can be viewed as unconscionable, or unreasonable, or calculated to take
an unfair advantage of appellants. Here, there is no showing of a “grave injustice”
necessary for there to be an equitable estoppel against a government agency. (City of
Goleta v. Superior Court, supra, 40 Cal.4th at p. 279; Driscoll v. City of Los Angeles,
(1967) 67 Cal.2d 297, 306.) As a matter of law, the undisputed facts are such that
appellants are not, under a theory of estoppel, entitled to relief from their late filing.
        In sum, it cannot be said that by delaying the issuance of the Decision the City
took unfair advantage of appellants or otherwise lulled them into a false sense of security
that prevented them from filing their petition before the running of the statute of
limitations.
D.      The Demurrer Was Properly Sustained Without Leave to Amend
        “ ‘When a ground for objection to a complaint, such as the statute of limitations,
appears on its face or from matters of which the court may or must take judicial notice, a
demurrer on that ground is proper.’ [Citation.]” (Vaca v. Wachovia Mortg. Corp. (2011)
198 Cal.App.4th 737, 746.) The petition for writ of mandate is time-barred on its face.
As discussed, appellants cannot rely on either tolling or equitable estoppel to escape this


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conclusion. No reasonable possibility exists that appellants could amend to plead around
the limitations periods. (See, e.g., McKell v. Washington Mutual, Inc. (2006) 142
Cal.App.4th 1457, 1491 [“ ‘plaintiff may not avoid a demurrer by pleading facts or
positions in an amended complaint that contradict the facts pleaded in the original
complaint or by suppressing facts which prove the pleaded facts false’ ”].) Thus, the
court correctly sustained the demurrer without leave to amend.
       To the extent appellants suggest that their pro per status, at the time they untimely
filed the petition, should have afforded them leave to amend, they are mistaken.
Although appellants represented themselves at the time they filed their petition, it is well
established that “[p]ro. per. litigants are held to the same standards as attorneys. (See
Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [‘A doctrine generally requiring or
permitting exceptional treatment of parties who represent themselves would lead to a
quagmire in the trial courts, and would be unfair to the other parties to litigation’];
[Citation]. ]” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
       Appellants’ status as propria persona litigants did not exempt them from the rules
of civil procedure. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Courts are required to treat propria persona litigants as any other party, affording them
“ ‘the same, but no greater consideration than other litigants and attorneys.’ ” (Id. at
p. 1247.) Because the untimeliness of appellants’ petition was established as a matter of
law, the trial court correctly sustained the City’s demurrer without leave to amend.
                                    III. DISPOSITION
       The judgment is affirmed. The City is entitled to its costs on appeal.




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                                           _________________________
                                           REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
STREETER, J.




Ottovich v. City of Fremont A140404



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