Valento v. City of Burbank
Appellant Anthony Valento filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1085.[1] Respondents City of Burbank, Burbank Civil Service Board and Mary J. Alvord demurred on the grounds that the petition was required to be brought pursuant to section 1094.5 and was barred by the 90-day statute of limitations in section 1094.6, subdivision (b). The trial court sustained the demurrer without leave to amend, and appellant filed a motion for new trial asserting that the statute of limitations was tolled due to respondents failure to provide the required mandatory notice of the limitations period pursuant to section 1094.6, subdivision (f). The trial court took the motion off calendar, believing that it had been divested of jurisdiction due to the filing of appellants notice of appeal. Appellant contends the trial court erred in refusing to consider and grant his new trial motion and, alternatively, that it erred in sustaining the demurrer without leave to amend. Court agree that appellant should be given leave to amend and therefore reverse the judgment of dismissal.
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