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Michael John Vitkievicz v. George Valverde

January 25, 2012

MICHAEL JOHN VITKIEVICZ, PLAINTIFF AND APPELLANT,
v.
GEORGE VALVERDE, AS DIRECTOR OF DEPARTMENT OF MOTOR VEHICLES, ETC., DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Robert H. O'Brien, Judge. (Los Angeles County Super. Ct. No. BS127848)

The opinion of the court was delivered by: Croskey, J.

CERTIFIED FOR PUBLICATION

Affirmed.

Michael John Vitkievicz challenges an administrative decision by the Department of Motor Vehicles (DMV) temporarily revoking his privilege to operate a motor vehicle. He appeals the dismissal of his petition for writ of mandate after the sustaining of a demurrer without leave to amend. He contends the sustaining of the demurrer based on the statute of limitations was error because he timely filed his petition within 95 days after the mailing of notice of the final administrative decision, and the DMV waived the statute of limitations defense by failing to timely demur. We conclude that the sustaining of the demurrer was proper and will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Vitkievicz was arrested for driving under the influence of alcohol in October 2009. The sheriff's deputy making the arrest served him with an order temporarily revoking his privilege to operate a motor vehicle effective after 30 days. Vitkievicz requested an administrative hearing. The DMV conducted an administrative hearing resulting in a decision revoking his driving privilege for a two-year period. The DMV later affirmed the decision in an administrative appeal.

The DMV served a notice of its final administrative decision on Vitkievicz by mail on May 10, 2010. The notice of decision included the statement, "You have a right to seek a court review of this action provided you do so within 94 days of the mailing date on this notice shown below." At the bottom of the page was a certificate of mailing stating that the notice was served by mail on May 10, 2010.

2. Trial Court Proceedings

Vitkievicz filed a petition for writ of mandate on August 13, 2010, against George Valverde as director of the DMV challenging the administrative decision. The filing date was 95 days after the service by mail of the notice of decision. The petition was verified by his attorney.

Valverde filed a general demurrer to the petition on October 19, 2010, arguing that the petition was untimely under Vehicle Code section 14401, subdivision (a) because it was not filed within 94 days after the mailing of the notice of decision and that the petition was not properly verified by Vitkievicz as the petitioner. Vitkievicz opposed the demurrer. The trial court concluded that the limitations period under Vehicle Code section 14401, subdivision (a) expired on August 12, 201l, and that the petition filed the next day was untimely. The court therefore sustained the demurrer without leave to amend on December 14, 2010, and entered an order of dismissal on January 26, 2011.*fn1 Vitkievicz timely appealed.*fn2

CONTENTIONS

Vitkievicz contends (1) his petition was timely under Vehicle Code section 14401, subdivision (a); and (2) Valverde waived the statute of limitations defense by failing to ...


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