Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2007-00078188- CU-PO-CTL, Luis R. Vargas, Judge.
HUFFMAN, Acting P. J.
This appeal from a judgment of dismissal of a personal injury action involves the application of the equitable tolling doctrine in the context of governmental tort claims against a public entity. Plaintiff and appellant Terri Ackerman (Plaintiff) was injured in 2005 when she slipped and fell at the premises of the school where she taught, which was owned and operated by defendant and respondent Poway Unified School District (the District). From 2005 to the present, she has obtained workers' compensation benefits and treatment for her injuries, including three surgeries since the accident. In 2006, she filed a timely governmental tort claim against the District. (Gov. Code, § 900 et seq. (Government Claims Act, hereinafter, the Act).) In 2007, she sued the general contractor which had built the school, on theories of premises liability and negligence.
All further statutory references are to the Government Code unless noted.
The original complaint named the general contractor, Douglas E. Barnhart, Inc., (Barnhart) and alleged premises liability and general negligence. Barnhart is not a party to this appeal.
In 2008, she amended her complaint to add the District as a defendant, alleging that she had recently learned of a change order that the District had made during construction, creating a slippery concrete surface, and contending that this now supported negligence claims against it.
The District responded by demurring to the amended complaint, alleging that her action against it was barred by the applicable statute of limitations under the Act, and she had not pled sufficient facts to excuse the delay. (§ 945.6, subd. (a).) After allowing leave to amend the first time around, the trial court sustained the District's second demurrer on the same grounds without leave to amend.
Plaintiff appeals, arguing that the doctrine of equitable tolling should apply to excuse her failure to file her action against the District within six months of the accrual of her cause of action, as measured from the date the District denied her tort claim. (Elkins v. Derby (1974) 12 Cal.3d 410, 414 (Elkins).) She also pled in her second amended complaint (SAC) that a longer limitations period should apply, based on the doctrine allowing amendments that relate back to the originally filed pleading. We have considered Plaintiff's theories and conclude that Plaintiff cannot bring herself within the scope of those doctrines, nor has she otherwise shown that her amended complaint was timely filed. For the reasons to be explained, we affirm the order and judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
A. Claim, Complaint, First Demurrer
For purposes of analyzing the demurrer, the courts will accept as true the facts alleged in the complaint. (John R. v. Oakland Unified School District (1989)48 Cal.3d 438, 441, fn. 1 (John R.).) On October 21, 2005, in the early morning, Plaintiff was on school premises when she slipped and fell on a painted concrete surface, which was wet from the morning dew. She alleged that others had complained about the floor's condition, which was not made according to plan, but nothing was done.
On April 20, 2006, Plaintiff, through counsel, filed a claim with the District, and refiled it when she was told that the correct form was now available. In her claim, she alleged that the District was negligent because it had installed painted concrete, as opposed to stained and porous concrete. In the District's letter transmitting the correct form, its official stated that "the District is covering Ms. Ackerman's injury under our workers' compensation plan." (Lab. Code, § 3600.)
On May 18, 2006, the City sent Plaintiff a letter stating her April 20 claim had been rejected pursuant to the Government Code. This letter warned Plaintiff about the six-month deadline that applied, "from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code, Section 945.6."
On October 19, 2007, Plaintiff filed her original complaint against Barnhart, seeking damages for personal injury based on premises liability and negligence. She also named as defendants, Does 1-25. This date was more than six months after Plaintiff's claim was denied (May 18, 2006).
On July 9, 2008, Plaintiff filed the first amended complaint (FAC) against Barnhart, NTD Architecture, and the District, again naming Doe defendants 1-25. As against the architects, she alleged that they were negligent in issuing supplemental instructions changing the concrete surface. As against the District, she alleged that she had adequately complied with governmental claims statutes, and that the District was not entitled to assert the exclusive remedy doctrine regarding workers' compensation, because it had not secured for her all the compensation to which she was entitled. (Lab. Code, §§ 3706, 3602, subd. (c).) She alleged that the District had issued a change order regarding the concrete surface, which created unreasonably dangerous conditions.
No issues are raised in this appeal concerning her claims against the architects, NTD Architecture, which were repleaded in the SAC.
Subject to several exceptions not involved here, an injured employee's exclusive remedy against her employer is a right to recover workers' compensation benefits, provided "the conditions of compensation set forth in Section 3600 concur." (Lab. Code, § 3602, subd. (a).) Under subdivision (c) of that section, where such conditions of compensation are not present, "the liability of the employer shall be the same as if this division had not been enacted."
The District brought a general demurrer to the FAC, contending it failed to state its causes of action because the claims were time-barred, and the exclusive remedy doctrine barred the tort action. Lack of sufficient compliance with governmental tort claims requirements was also alleged. The trial court granted leave to amend, and Plaintiff filed her SAC.
B. Second Demurrer; Ruling
In her SAC, Plaintiff apparently sought to incorporate her previous negligence cause of action against the District, and she also pled in more detail her claim of breach of duty to an employee, in failing to provide adequate workers' compensation benefits to her. (Lab. Code, §§ 3602, subd. (c), 3706.) She alleged that this set of circumstances exempted the case from the exclusive remedy doctrine, and that the current pleading was timely filed, apparently because it rested upon the same facts as the original governmental claim, which referred to the same accident and the same injuries. Because the accident occurred early in the morning, she alleged it took place outside the scope of her employment. She alleged that the District was negligent when it issued the change order, of which she was ignorant before late June 2008. She contended that the District had maintained a public nuisance at the school premises, by allowing the slippery concrete condition to continue. She also named as defendants, Does 1 to 25.
Labor Code section 3706 provides, "If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply."
On November 7, 2008, the District brought a general demurrer to the SAC, contending that Plaintiff had still failed to allege exemption from the requirements of the Act, regarding timely filing of the action, or from the exclusive workers' compensation remedy. In support, the District sought judicial notice of the claims and denial of claim, and the original complaint.
Plaintiff filed opposition, asserting that the doctrine of equitable tolling should apply because Plaintiff had been pursuing her workers' compensation benefits and claims since the accident. In mid-2008, she filed her forms for adjudication of her workers' compensation claim. She argued that because she had filed her claim on the accident in a timely manner, the District had had the opportunity to investigate the accident immediately, and thus it was not prejudiced by her delay in filing. She argued she was excused from earlier filing of her FAC and SAC, because she had been diligently pursuing her workers' compensation remedy, and was attempting to limit the damages she would claim against the District, until she learned that it was the District that participated in the change order. This was a tactical decision. Reply papers were filed.
The trial court issued a telephonic ruling, which was confirmed after oral argument. The District's demurrers were sustained without leave to amend The order provides in pertinent part that although Plaintiff was required to file suit, if any, within six months of the rejection of her claim, she had failed to do so. She had therefore not pled adequate facts to support compliance with governmental claims presentation requirements, including the six-month filing requirement of section 945.6. Judicial notice was granted of various documents from the claims process, as presented by the District. (Although Plaintiff objected to one factual assertion in the documents, that objection was overruled and is not at issue here.)
In sustaining the demurrer without leave to amend, the trial court further found that even if the relation back doctrine allowed the amendment naming the District as a defendant to relate back to the time of filing of the original complaint, that complaint was still filed more than six months after the rejection of the tort claim. The entire SAC was barred by this defect, and the additional issues were moot regarding the workers' compensation exclusivity doctrine.
Plaintiff appealed the order on the demurrer. Later, judgment was entered, and this appeal may be deemed properly taken from the judgment.
DISCUSSION
I
APPLICABLE STANDARDS AND ISSUES PRESENTED
For purposes of analyzing the ruling on demurrer, we take as true the allegations in the complaint. (John R., supra, 48 Cal.3d 438, 441, fn. 1; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We give the complaint a reasonable interpretation, reading it as a whole, its parts in their context, to determine whether sufficient facts are stated to constitute a cause of action. (Ibid.) For purposes of reviewing the trial court's construction of a statutory scheme, we resolve pure questions of law on a de novo basis. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
The issue of whether a plaintiff has pleaded sufficient facts to demonstrate or excuse compliance with governmental tort claims presentation requirements may appropriately be addressed in a general demurrer to a complaint. (See State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239, 1244-1245 (Bodde).) Here, that issue also encompasses whether Plaintiff provided any showing of appropriate amendments that could be made to the pleading. "If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
In Plaintiff's opposition to the demurrer to the SAC, for the first time, she relied on the doctrine of equitable tolling to defend the timeliness of the SAC or to seek leave to amend. " 'Equitable tolling is a fact intensive issue and it is determined based upon evidence. Accordingly, we are compelled to affirm the trial court's rejection of the theory if there is substantial evidence to support its determination.' [Citation.]" (Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 408.) Where, as here, an appeal is brought after the pleading stage in the trial court, the only "facts" are those contained in the pleadings and the remainder of the record, including judicial notice materials. (Ibid.) This court can appropriately analyze the issues of law regarding whether those pleaded facts "were sufficient to support the trial court's rejection of equitable tolling in this case." (Ibid.) We first set out the applicable limitations rules and then discuss the effect of the equitable tolling doctrine.
II
STATUTES OF LIMITATION UNDER THE ACT AND PRINCIPLES OF EQUITABLE TOLLING
A. Introduction
In Martell v. Antelope Valley Hospital Medical Center (1998) 67 Cal.App.4th 978, 981(Martell), the court explained that, " 'Suits against a public entity are governed by the specific statute of limitations provided in the Government Code, rather than the statute of limitations which applies to private defendants. [Citation.]' " Thus, the Act consists "of a comprehensive format specifying the parameters of governmental liability, including... a detailed procedure for the advance filing of a claim as a prerequisite to filing suit" and deadlines "as to both the filing of claims and the commencement of litigation...." (Schmidt v. Southern Cal. Rapid Transit Dist. (1993) 14 Cal.App.4th 23, 28, fn. omitted (Schmidt).) These rules strictly control the basis under which public entities may be liable for damages. (Id. at p. 29.)
Here, the relevant limitations periods are provided by section 945.6, which sets forth alternative six-month and two-year limitations periods for the filing of a court action, as will be discussed. We are not concerned here with any contention that the April 20, 2006 governmental claim was itself untimely, as to the October 21, 2005 accident. (§ 911.2.) Rather, it is the timeliness of the separate dates of filing of the original and amended pleadings which are in dispute here.
The doctrine of equitable tolling has been developed to modify such limitations rules for the timely filing of actions, where appropriate. "Broadly speaking, the [equitable tolling] doctrine applies ' " '[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.' " ' [Citation.] Thus, it may apply where one action stands to lessen the harm that is the subject of a potential second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in good faith, is found to be defective for some reason. [Citation.]" (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100 (McDonald).)
In Addison v. State of California (1978) 21 Cal.3d 313, 320-321, the Supreme Court outlined the policies behind the equitable tolling doctrine, which include not only the avoidance of forfeitures (to allow a good faith litigant to have her day in court), but also an important balancing process: "As with other general equitable principles, application of the equitable tolling doctrine requires a balancing of the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the Tort Claims Act limitations statute. [Citation.]" (Id. at p. 321.) The statutory policies of the Act were intended to promote the earliest possible opportunity to investigate and settle just claims, and to correct any unsafe conditions or practices. (Martell, supra, 67 Cal.App.4th at p. 981.) These unique limitations periods in the Act serve to promote uniformity and avoid undue delay in bringing lawsuits against public entities. (Id. at p. 982.)
To argue that these facts support an application of equitable tolling of the limitations rules under the Act, Plaintiff mainly contends that her pursuit of workers' compensation benefits qualifies as an alternative legal remedy, which could have served to reduce her ultimate request for damages against the District, and therefore the accrual of her causes of action against the District should have been suspended while she was undergoing treatment in the workers' compensation system.
Before we can address Plaintiff's specific contentions in accordance with the rules stated above, we first take note that she is apparently combining several theories against the District in her SAC: Its alleged negligence during the planning and construction process, and an assertion that the District was not entitled to assert the exclusive remedy doctrine regarding workers' compensation, because it had not secured for her all the compensation to which she was entitled. (Lab. Code, §§ 3706, 3602, subd. (c).) Her "relation back" allegations seem to depend upon the date of her original filing of her claim, not the date of the separate filing of her lawsuit against Barnhart. Essentially, she is claiming delayed discovery of the District's change order in June 2008.
Because Plaintiff makes such wide-ranging allegations, we find it necessary to address both of the statutory limitations periods in section 945.6. (See Martell, supra, 67 Cal.App.4th 978, 981, citing Edgington v. County of San Diego (1981) 118 Cal.App.3d 39, 46 "['plain meaning rule' applies to section 945.6 barring court from ' "go[ing] beyond [the statute] to find another meaning." '].") Our task is to ascertain whether the SAC is barred by the limitations periods applicable to any legally cognizable theory generated by these pleaded facts.
B. Six-Month Period: Section 945.6, Subdivision (a)(1)
Since the record shows that the District provided Plaintiff, the claimant, with a written notice of rejection of the claim, Plaintiff was required to bring an action against the District within six months after "the date such notice is personally delivered or deposited in the mail." (§ 945.6, subd. (a)(1).) This six-month deadline "is mandatory and must be strictly complied with." (Julian v. City of San Diego (1986) 183 Cal.App.3d 169, 176; see Schmidt, supra, 14 Cal.App.4th at p. 29.)
Plaintiff's lawsuit against Barnhart, a private entity, was filed about 17 months after the District denied her claim, and would have been untimely if then brought against the District, under that six-month limitations period of section 945.6, subdivision (a)(1). (She did not then sue the District.) In any case, Plaintiff has no basis to argue that any cause of action against the District for negligence did not accrue until the discovery of the District's change order in mid-2008, since judicial notice of her original claim in April 2006 shows she alleged the same type of negligence in the concrete design.
C. Two-Year Period; Section 945.6, Subdivision (a)(2) and Relation Back Doctrine
In an effort to escape the six-month limitation period beginning upon the denial of the claim, Plaintiff appears to be relying on section 945.6, subdivision (a)(2) as providing for an alternative limitations period that might apply to this action. That subdivision states that an action must be filed against the governmental entity: "(2) If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action." Plaintiff's original negligence and premises liability claims against Barnhart were governed by the appropriate limitations rules for private defendants (filed within two years of the date of the accident). But with respect to the District, the Act creates separate limitations periods, because of public policy concerns about the certainty and predictability of public entities' exposure to liability. (Martell, supra, 67 Cal.App.4th at pp. 981-985.)
We have already said that Plaintiff's original complaint (against Barnhart, with no mention of the District) missed the six-month deadline theoretically applicable to the District under section 945.6, subdivision (a)(1). Even so, if Plaintiff is arguing that her SAC relates back to that original action's filing date (October 2007, within two years of the accident), it would have to fit within the relation back doctrine as set out in Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409 [requiring "that the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality [that caused the same accident], as the original one."].) However, the original complaint against Barnhart does not allege anything against the District, so it fails that test.
Moreover, Plaintiff apparently did not utilize the Doe amendment procedure, since the same Does (nos. 1-25) are listed in the captions of the original and both of the amended complaints, and there are no Doe amendments in the record. Thus, if Plaintiff is arguing that her action against the District was timely because her FAC and SAC should relate back to the original complaint's filing date, that argument fails because the original complaint itself did not allege anything against the District, and compliance with the Act was required. (See Chase v. State of California (1977) 67 Cal.App.3d 808, 812-813.)
D. Equitable Tolling Doctrine
Plaintiff's major argument is that these facts should justify a very broad reading of the elements of equitable tolling, to afford her a day in court. She continues to argue that her informal participation in the workers' compensation system for treatment of her injuries should indirectly support a finding of equitable tolling, and her formal efforts to adjudicate her claim in the workers' compensation forum did not begin until mid-2008, but also support her argument that some tolling of the limitations periods occurred. Plaintiff contends that she has satisfied the test for the applicability of the equitable tolling doctrine, by showing all its three elements: " 'timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.' " (McDonald, supra, 45 Cal.4th 88, 102.)
Specifically, Plaintiff argues that because the District was able to investigate the accident at the time, based upon the filing and denial of her claim, it would not be prejudiced by allowing her action in court to proceed. She thus seems to be arguing that her SAC should relate back to the denial date of her original claim, May 2006. Only the six-month limitations provision in section 945.6, subdivision (a)(1) refers to the denial date of her claim, so she seems to be invoking that section. To evaluate her overall arguments, we look to the policies promoted by the equitable tolling doctrine.
Usually, "[u]nder equitable tolling, the statute of limitations in one forum is tolled as a claim is being pursued in another forum. [Citations.]" (Martell, supra, 67 Cal.App.4th 978, 985.) In McDonald, the Supreme Court relied on Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 923, for its explanation of the policies allowing equitable tolling, when two separate remedies are available to the plaintiff: " ' "The timely notice requirement essentially means that the first claim must have been filed within the statutory period. Furthermore[,] the filing of the first claim must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim. Generally this means that the defendant in the first claim is the same one being sued in the second." [Citation.] "The second prerequisite essentially translates to a requirement that the facts of the two claims be identical or at least so similar that the defendant's investigation of the first claim will put him in a position to fairly defend the second." [Citation.]' " (McDonald, supra, 45 Cal.4th 88, 102, fn. 2.)
To give meaning to these various terms (claim, action, remedy, or forum) we look to Elkins, supra, 12 Cal.3d 410. Elkins stands for the proposition that when a plaintiff has a choice between bringing a civil action and a workers' compensation claim, the statute of limitations applicable to the civil action may properly be tolled for the period during which plaintiff pursues the compensation remedy. In that case, that plaintiff was injured while working on defendants' premises, but was required to file a claim for benefits with the Workmen's Compensation Appeals Board (WCAB) because questions arose about whether that plaintiff was an "employee" at the time of his injury. After the WCAB adjudicated the matter, plaintiff filed his civil action seeking recovery for the same injuries that led to the compensation claim. Although the superior court originally ruled that the civil action was barred by the applicable statute of limitations, the Supreme Court allowed it to proceed, holding that the equitable tolling doctrine applied while the WCAB adjudication was going on. (Id. at pp. 412-420.) The court said, "[A]n awkward duplication of procedures is not necessary to serve the fundamental purpose of the limitations statute, which is to insure timely notice to an adverse party so that he can assemble a defense when the facts are still fresh. The filing of a compensation claim accomplishes this purpose and the tolling of the statute does not frustrate it." (Id. at p. 412.)
In the case before us, plaintiff was receiving workers' compensation benefits without the need of bringing a formal claim before the WCAB. Her case is distinguishable from Elkins, supra, 12 Cal.3d 410, because an employee's receipt of benefits is different from the filing and adjudication of a workers' compensation claim before an administrative agency. She alleges that it was not until mid-2008 that she filed such an administrative action, and therefore it could have no meaningful tolling effect upon the Act's limitations periods.
Even if we assume that the District gained knowledge of how Plaintiff's accident occurred as early as her April 2006 claim, which alleged some District negligence, we cannot assume that the District was then placed on notice that she would be suing it for negligence in 2008, on the late developing theory that its change order during construction had caused her harm through negligence, and that she would allege that such an action would fall outside of the workers' compensation system. Moreover, that pleaded assertion of late discovery of negligence is contradicted by the terms of the original claim. It is hard to see how the first claim "alert[d] the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim" (McDonald, supra, 45 Cal.4th 88, 102, fn. 2), when as far as anyone knew, the District's denial of her claim, and the inaction by Plaintiff, presumably left the District under the belief that her claim was finally resolved, except as the workers' compensation system otherwise permitted. (Collier, supra, 142 Cal.App.3d 917, 923.)
Also, Plaintiff pleads in the SAC that her new negligence cause of action is not barred by the workers' compensation exclusivity rule, based upon her current allegations that the District failed to provide her adequate workers' compensation benefits. It is contradictory for her to argue concurrently that she fully participated in the workers' compensation system, as an alternative forum within the meaning of the tolling doctrine. (Lab. Code, § 3706.)
Finally, Plaintiff incorrectly believes that the only relevant element of equitable tolling is whether the District was prejudiced by the lapse of time between the denial of the claim and the naming of the District as a defendant. However, the timeliness requirements of statutes of limitation in general, and the act in particular, do not turn upon whether a particular defendant was harmed by the delay. A plaintiff may not unilaterally extend the Act's limitations periods by filing an amended action long after her original claim was denied, merely by claiming there should be no prejudice to the public entity. Rather, the other elements of the equitable tolling test are also important. Here, Plaintiff cannot realistically plead there was adequate notice to the District of her negligence theory, insofar as future litigation was concerned, nor that she acted reasonably in delaying the filing of her action against the District. (See McDonald, supra, 45 Cal.4th 88, 102.)
Therefore, Plaintiff cannot assert that the SAC was timely filed, as resting upon the same facts as the original governmental claim (even though it referred to the same accident), because the equitable tolling doctrine does not allow Plaintiff to forego a timely filing of a court action or other proceeding to seek formal redress of injury, within the statutory periods set by the Act. She cannot rely solely upon the filing or denial of her original claim to assert timeliness. For all of these reasons, the trial court correctly sustained the demurrer without leave to amend.
DISPOSITION
Judgment affirmed. Plaintiff to pay District's costs on appeal.
WE CONCUR: NARES, J. AARON, J.