Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 37-2009-00085477- CU-OR-CTL, Yuri Hofmann, Judge.
BENKE, Acting P. J.
Plaintiffs and appellants Robert Chisley and Gloria Chisley, who are husband and wife, appeal from an order of dismissal entered on an order sustaining a demurrer without leave to amend. The demurrer was filed by defendants and respondents Orkin Exterminating Company, Inc. (Orkin), and Kenneth Metoyer, Jr., erroneously sued as Kenneth Montoyer, Jr., and alleged appellants' claims were untimely under applicable statutes of limitations. The demurrer further alleged that in any event two of appellants' claims failed to state causes of action.
In ruling on the demurrer, the trial court agreed with respondents that appellants' claims were untimely and did not reach respondents' contention that two of appellants' claims failed to state causes of action. Appellants contend their claims were timely under the doctrines of tribal exhaustion, delayed discovery and equitable tolling and that the trial court therefore erred in sustaining respondents' demurrer without leave. We find no error and affirm.
BACKGROUND
1. Factual Allegations
Because the challenged ruling arises in the context of a demurrer, we accept as true the material factual allegations of the operative pleading, the Chisleys' second amended complaint (SAC). (See Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 806.) We also accept as true all matters properly subject to judicial notice (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), but do not accept "contentions, deductions, or conclusions of fact or law." (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.)
The following factual recitation is taken from the allegations of the SAC and matters judicially noticed:
We grant the Chisleys' motion to augment the record to include the transcript of the deposition of respondent Metoyer taken on March 29, 2007, while the Chisleys' related claims were pending in tribal court. (Cal. Rules of Court, rule 8.155(a)(1)(B).) We also grant the Chisleys' request for judicial notice of the following documents: (1) the August 20, 2007 declaration of Jay Bart, counsel for Barona, in support of an order staying all discovery or alternatively, limiting the Chisleys' demand to conduct expert testing of various guestrooms at Barona, including the guestroom the Chisleys stayed in during their August 2005 visit (exhibit A); (2) the ex parte application of Barona filed on November 9, 2007, in support of its request for an order extending the time within which the tribe may file a reply memorandum in support of its motion to quash service of summons for lack of jurisdiction, in case No. 37-2007-00060464-CU-PO-EC (exhibit B, discussed post);(3) the November 9, 2007 ex parte application of the Chisleys for an order extending the time to file opposition to Barona's motion to quash (exhibit C); and (4) the Chisleys' memorandum of points and authorities filed on November 15, 2007, in opposition to Barona's memorandum of points and authorities in opposition to Barona's motion to quash service of summons (exhibit D). (Evid. Code, §§ 452, 459.)
Between August 3, 2005, and August 5, 2005, the Chisleys were guests at the Barona Valley Ranch Resort and Casino (Barona), which is owned by the Barona Band of Mission Indians, a native American tribal nation (the tribe). The Chisleys allege they were accidentally injured during their stay at Barona. In particular, the Chisleys allege they were repeatedly and severely bitten by bed bugs.
In January 2006 the Chisleys filed a claim with the tribe's insurer. Although their claim was supported by only $1,300 in medical expenses, the Chisleys sought over $2 million in damages. The tribe's insurer investigated and denied the Chisleys' claim.
The Chisleys timely appealed the denial of their claim to the Barona Tribal Court (tribal court). On or about March 19, 2007, during the course of discovery in tribal court, the Chisleys learned Orkin and Metoyer performed extermination services for the tribe. Specifically, the Chisleys allege they first learned on March 19, 2007, that "the tribe hired... ORKIN to spray for and handle pests" at Barona; that "Orkin" routinely treated all guestrooms at [Barona] from January 1, 2005 to January 19, 2007, as a matter of course, including the room that [the Chisleys] resided in during their stay at [Barona]"; that "Orkin generally treat[ed] 25 rooms per week at [Barona] through its employee, [Metoyer], who had been treating the guestrooms at [Barona] since approximately 2001."
At the time the Chisleys filed their appeal, the tribal court was known as the Barona Tribal Council.
Based on additional documents provided by the tribe, on or about May 9, 2007, the Chisleys learned that before their stay at Barona, Orkin treated the specific guestroom in which they stayed. The Chisleys learned that three months before their stay, their guestroom was inspected and serviced by Metoyer, who represented it was free from any infestation of bed bugs. In fact the Chisleys' guestroom, among others at Barona, was later found by Metoyer to be infested by bed bugs.
The Chisleys alleged they were unable to have made earlier discovery of the four claims in the SAC despite their reasonable diligence because "they complied in good faith with the tribe's procedures in resolving their claims, and, during the discovery process, they learned additional facts regarding [Orkin and Metoyer] that came at a later date than the date of their injuries on or about August 3 to 5, 2005.
"Not until May 9, 2007, when [the Chisleys] received the additional documents through discovery, could [the Chisleys] have had a reasonable basis to believe that Orkin could have been liable for the causes of action alleged in [the SAC]. Even at this time, [the Chisleys] had not yet had an opportunity to review and have their expert analyze the hundreds of documents produced to determine liability on [Orkin's and Metoyer's] behalf. [The Chisleys] did not have knowledge of the causes of action against [Orkin and Metoyer] until months after May 9, 2007, when relevant documents were produced and [the Chisleys] had reasonable time to review and analyze said documents."
On August 2, 2007, after more than year of "heavy litigation and discovery, " the Chisleys filed a state court complaint against the tribe seeking damages for the same injuries that were the subject of the litigation pending in the tribal court, case No. 37-2007-00060464-CU-PO-EC, Robert Chisley, et al v. Barona Band of Mission Indians and Does 1-50, Inclusive (hereinafter, 2007 state court action). Very shortly after the 2007 state court action was filed, the tribal court dismissed the action pending before it.
Barona subsequently moved to quash the summons and complaint in the 2007 state court action on the grounds the tribe's sovereign immunity deprived the court of subject matter jurisdiction. The tribe's motion was granted in late November 2007.
Thereafter, the Chisleys moved to disqualify the trial court judge who made that ruling, which motion was stricken by Superior Court Judge Kenneth So on January 8, 2008. On January 14, 2008, the Chisleys filed a motion for reconsideration of its statement of disqualification, which also was denied. In mid-January 2008 the Chisleys filed a writ of mandate in this court, D052362, which was summarily denied on February 22, 2008. On this court's own motion, we take judicial notice of the writ of mandate filed by the Chisleys in D052362.
The Chisleys filed the instant action on March 18, 2009, asserting causes of action against Orkin and Metoyer for "general negligence" and "intentional infliction of emotional distress." The Chisleys filed their SAC, which is the operative complaint in this appeal, in early October 2009. In addition to the two previous claims for general negligence and intentional infliction of emotional distress, the Chisleys alleged a third cause of action for "fraud and deceit, negligent misrepresentation of fact" and a fourth cause of action for "negligence, injury to personal property."
Orkin and Metoyer demurred to the Chisleys' SAC. By way of their demurrer, Orkin and Metoyer alleged that all the Chisleys' claims were time barred and that in any event the second and third causes of action failed to state causes of action. Orkin and Metoyer also moved to strike portions of the complaint.
As before, Orkin and Metoyer also filed a motion to strike portions of the SAC. The trial court again ruled that motion was moot given its ruling sustaining the demurrer without leave to amend.
The trial court granted the parties' respective requests for judicial notice and sustained the demurrer without leave to amend. The trial court found the first and second causes of action were governed by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1, that the third and fourth causes of action were governed by the three-year statute of limitations set forth in section 338, and that because the complaint was filed more than three years after the injury producing event, it was untimely. The court further found that none of the causes of action were saved by the delayed discovery rule or equitable tolling. Because the trial court found the complaint was time barred, it did not reach the merits of Orkin's and Metoyer's contention that the second and third causes of action failed to state causes of action or Orkin's and Metoyer's motion to strike.
Orkin's and Metoyer's request for judicial notice and accompanying documents filed in support of their demurrer to the SAC was not included in the appeal record.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Following entry of its order sustaining the demurrer without leave to amend, the trial court dismissed the Chisleys' action and the Chisleys filed a timely notice of appeal.
The order dismissing the action is appealable. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.)
DISCUSSION
I
Standard of Review and Overview
On appeal from a dismissal following the sustaining of a demurrer without leave to amend, we exercise our independent judgment in determining whether the complaint states a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) In undertaking our independent review, "we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
We review the court's denial of leave to amend for an abuse of discretion. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Buller v. Sutter Health, supra, 160 Cal.App.4th at p. 986.) "It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment." (Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 719.) "Nevertheless, where the nature of the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) A judgment based upon an order sustaining a demurrer can be affirmed on an alternate ground raised in the demurrer, even if the trial court did not rely on that ground. (See CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1533.)
The parties agree, and the trial court found, that the Chisleys' causes of action for general negligence and intentional infliction of emotional distress are governed by a two-year limitations period (§ 335.1) and that a three-year limitations period (§ 338) applies to the Chisleys' causes of action for negligent misrepresentation and negligent injury to personal property. We note from the SAC and matters judicially noticed that the Chisleys' injuries occurred in early August 2005, when the Chisleys claim they were bitten by the bed bugs and that the Chisleys waited until March 18, 2009, to file the instant action against Orkin and Metoyer. As we indicated at the outset, the Chisleys argue that notwithstanding the nearly three- and one-half-year delay between the bites the Chisleys experienced and their complaint, the complaint was timely by virtue of the doctrines of tribal exhaustion, delayed discovery and equitable tolling. As we explain below, none of these doctrines saves the Chisleys' complaint.
II
We resolve this issue on the merits, even though the Chisleys did not specifically raise the so-called "tribal exhaustion doctrine" in their opposition to the demurrer to the SAC. (See In re Riva M. (1991) 235 Cal.App.3d 403, 411-412 ["As a general rule, a party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would ' " 'permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.' " [Citations.]' [Citation.]"; accord, Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799-800 [" ' "The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law." ' "].)
The Chisleys first contend that under the "tribal exhaustion doctrine, " each cause of action in the SAC was tolled until the tribal court had an opportunity to hear the merits of their claim against the tribe. We disagree.
The so-called tribal exhaustion doctrine was recognized in two United States Supreme Court cases, Nat. Farmers Union Ins. Cos v. Crow Tribe of Indians (1985) 471 U.S. 845, 848-849 [105 S.Ct. 2447] (National Farmers) and Iowa Mutual Ins. Co. v. LaPlante (1987) 480 U.S. 9, 15-16 (Iowa Mutual), in which defendants challenged the jurisdiction of tribal courts over claims made against them. In both cases, although the defendants challenged the jurisdiction of tribal courts in the respective tribal forums, before the jurisdictional issues were resolved in the tribal courts, the respective defendants sought interlocutory relief in federal district court. In National Farmers the defendant argued the tribal court lacked jurisdiction over non-Indian defendants and that instead jurisdiction of the claims against it in federal district court was provided by title 28, United States Code section 1331; in Iowa Mutual, the defendant argued the federal district court's diversity jurisdiction under title 28, United States Code section 1332 displaced tribal court jurisdiction over the claims made against it.
In both cases the United States Supreme Court held that, as a matter of comity and respect for tribal sovereignty, any action in federal court had to be stayed until the respective tribal courts ruled upon the defendants' respective challenges to tribal court jurisdiction. "Regardless of the basis for jurisdiction, the federal policy supporting tribal self-government directs a federal court to stay its hand in order to give the tribal court a 'full opportunity to determine its own jurisdiction.' [Citation.] In diversity cases as well as federal-question cases, unconditional access to the federal forum would place it in direct competition with the tribal courts, thereby impairing the latter's authority over reservation affairs. [Citations.]" (Iowa Mutual, supra, 480 U.S. at p. 16.) Thus under the doctrine of tribal exhaustion, non-Indian defendants must exhaust tribal court remedies before seeking relief in federal court, even though they believe a tribal court has no jurisdiction over the claims made against them. (Burlington Northern R. Co. v. Crow Tribal Council (9th Cir. 1991) 940 F.3d 1239, 1244.)
Tribal exhaustion has no application here because a timely claim against Orkin and Metoyer in our superior court, were it made, would not be a challenge to the jurisdiction of the tribal court over the Chisleys' separate claims against the tribe in the tribal court. As Orkin and Metoyer point out, application of tribal exhaustion necessarily contemplates that the action filed in the nontribal forum involve the same parties and the same dispute as the action pending in the tribal forum. (See National Farmers, supra, 471 U.S. at pp. 851-853; Iowa Mutual, supra, 480 U.S. at pp. 11-13.)
Moreover, and perhaps more importantly, tribal exhaustion does not in any fashion relieve a plaintiff of his or her obligation to file a timely claim in a proper forum. While the doctrine of tribal exhaustion gives tribal courts preference over nontribal courts, it does not expressly or by implication alter the time in which claims in the preferred forum must be made. Here, as we have noted, no claims against Orkin and Metoyer were ever made in tribal court and the claims made in the trial court were made three and one-half years after the Chisleys were bitten.
In sum then, tribal exhaustion does not apply here because there was no conflict in jurisdiction with the tribal court and in any event tribal exhaustion does not excuse a plaintiff's failure to file a timely claim in a proper forum.
III
Delayed Discovery—Negligent Misrepresentation
The Chisleys' third cause of action alleged that before their stay, Orkin and Metoyer negligently misrepresented to the tribe that the Chisleys' room was free of bed bugs. In ruling on Orkin's and Metoyer' demurrer, the trial court determined that the Chisleys discovered or should have discovered their negligent misrepresentation cause of action either at the time they were bitten in August 2005 or later in January 2006, when they filed their initial claim against the tribe. We agree with the trial court.
As we indicated, the parties agree the Chisleys' negligent misrepresentation claim is governed by section 338, subdivision (d), which by its terms provides that a cause of action for fraud or mistake does not accrue until plaintiff discovers the facts constituting the fraud or mistake. However, under the discovery rule embodied in section 338, subdivision (d), " 'the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.... [T]he limitations period begins once the plaintiff " ' "has notice or information of circumstances to put a reasonable person on inquiry...." ' " [Citations.] A plaintiff need not be aware of the specific "facts" necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.' [Citations]" (Rivas v. Safety-Kleen Corp. (2002) 98 Cal.App.4th 218, 225-226.)
Here, at the very latest the Chisleys knew they were the victim of some wrongdoing by the time they filed their initial claim against the tribe in January 2006, more than three years before they filed their complaint against Orkin and Metoyer. The fact they did not know the names of all those responsible for their injury did not excuse them from filing a complaint within three years after discovering their injury and its wrongful cause. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) "The discovery rule does not delay accrual in that situation because the identity of the defendant is not an element of a cause of action. [Citation.]" (Ibid.)
Because the Chisleys discovered their claims against Orkin and Metoyer no later than the time they filed their claim against the tribe, their negligent misrepresentation claim, filed more than three years later, was untimely.
Even if the negligent misrepresentation cause of action were timely, it would still be subject to a demurrer. As the Chisleys concede, the alleged misrepresentations were not made to the Chisleys, but rather to the tribe. Thus, the Chisleys could not have relied, much less reasonably relied, on the alleged misrepresentation made by Metoyer when they stayed at the resort. (See Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255 [noting the elements of fraud, "which give rise to the tort action for deceit, are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage, " and noting that the tort of negligent misrepresentation, a subspecies of the tort of deceit, requires the same elements except there is no requirement of intent to induce reliance]; compare Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 [reliance exists when the misrepresentation or nondisclosure is immediate cause of the plaintiff's conduct and when without such misrepresentation or nondisclosure he or she would not have entered into the contract or other transaction]; Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 170 [reliance may be established on a showing that the alleged fraudulent misrepresentation or concealment substantially influenced the party's choice].) As such, their claim for negligent misrepresentation fails as a matter of law.
IV
Equitable Tolling
Finally, the Chisleys contend the trial court erred when it found the equitable tolling doctrine did not apply to their four causes of action. Again, we find no error.
Equitable tolling is a "judicially created, nonstatutory doctrine" " 'designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations—timely notice to the defendant of the plaintiff's claims—has been satisfied.' [Citation.] Where applicable, the doctrine will 'suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.' " (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.) When equitable tolling is applied, the statute of limitations "stops running during the tolling event, and begins to run again only when the tolling event has concluded, " which extends the deadline for filing the new action for the length of time of the tolling event. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.)
In assessing whether a statute of limitations will be equitably tolled in a particular situation, the courts generally examine the presence or absence of three factors: "(1) timely notice to defendants in filing the first claim; (2) lack of prejudice to defendants in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by plaintiffs in filing the second claim." (Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093, 1100 (Downs).)
The Downs court, elaborating on these three factors, stated: " '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.] 'The third prerequisite of good faith and reasonable conduct on the part of the plaintiff is less clearly defined in the cases." (Downs v. Department of Water & Power, supra, 58 Cal.App.4th at p. 1100.)
Here, the equitable tolling doctrine does not apply to any of the Chisleys' causes of action. From the face of the SAC and matters judicially noticed, there are no facts suggesting Orkin and Metoyer should have been alerted by the filing of the Chisleys' two cases against the tribe that the Chisleys would be filing claims against Orkin and Metoyer in 2009 based on a business relationship between the tribe and Orkin and Metoyer.
In particular, we note the defendant in the tribal court was the tribe, who also was the defendant in the 2007 state court action. Thus, as to the tribe, the equitable estoppel doctrine might prevent the tribe from raising the bar of the statute of limitations, assuming the other elements of the doctrine are present. However, it is quite another thing to impose the equitable estoppel doctrine on Orkin and Metoyer when they were not parties in either the first or second case involving the Chisleys, and when the Chisleys waited until March 18, 2009 to file the instant action against Orkin and Metoyer notwithstanding the fact their injuries occurred in early August 2005 and the Chisleys knew as early as mid-March 2007 that Orkin and Metoyer treated the rooms at Barona on behalf of the tribe.
DISPOSITION
The order of dismissal entered following the order sustaining the demurrer without leave to amend is affirmed. Orkin and Metoyer to recover their costs of appeal.
WE CONCUR: HALLER, J., McDONALD, J.