Opinion
NOT TO BE PUBLISHED
APPEAL from an order of dismissal of the Los Angeles County Superior Court No. BC398697, Raul A. Sahagun, Judge. Affirmed.
Robert Mann and Donald W. Cook for Plaintiff and Appellant.
Ferguson, Praet & Sherman and Jon F. Hamilton for Defendants and Respondents.
JOHNSON, J.
SUMMARY
Plaintiff and appellant, Francisco Narciso, injured after being mistaken by police for a fleeing felon and bitten by a police dog, appeals from an order of dismissal following the sustaining of defendants’ demurrer without leave to amend based on the statute of limitations. Narciso claims he is entitled to the benefit of the delayed “discovery rule” for accrual of his causes of action, because he did not discover that the dog that bit him was owned by defendant and respondent City of Whittier until more than two years after the date of the incident. But a plaintiff who has reason to suspect someone caused his injury may not assert ignorance of a defendant’s identity as a basis for late accrual of a cause of action. Accordingly, we affirm.
BACKGROUND
On review from an order dismissing an action following the sustaining of a demurrer without leave to amend, we assume the truth of allegations in the complaint, as well as facts that may be implied or inferred from those expressly alleged, but not conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) “Relevant matters that are properly the subject of judicial notice may be treated as having been pled.” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 742.)
Just before 5:00 a.m. on August 24, 2005, Narciso was asleep in a room of a house on Gallatin Road in Downey. The house was undergoing a substantial renovation. Narciso worked on the construction during the day and remained on site during nonworking hours, serving as an informal caretaker to help prevent theft.
Earlier that morning police officers from the Downey Police Department had begun a vehicle chase of a suspected robber. Once he reached Gallatin Road, a cul-de-sac, the suspect fled his car on foot. The officers requested assistance from a helicopter and a canine unit. As a result of that “mutual aid” request, defendant and respondent Michael Martinez, an officer and dog handler employed by the Whittier Police Department, arrived with his police dog to assist in the search.
The officers cleared several houses before arriving at the one in which Narciso slept. That house, which was under construction, appeared to be vacant. Three officers from the Downey Police Department entered the house, as did Martinez and his dog. The uniforms worn by the Downey Police officers were very similar to the one worn by Martinez. Martinez’s dog entered the bedroom in which Narciso was just waking up. Narciso did not hear anyone knock, nor any police announcements. Seeing a dog approach him, Narciso put his arms in front of his face. Narciso did not know the dog was a police dog. The dog bit Narciso, puncturing his forearm. As the dog was biting him, Narciso heard police knocking on the walls announcing their presence; he yelled for help. The dog continued to hold onto Narciso, and one or more of the officers had to pull the dog away from him. Downey Police officers placed Narciso in handcuffs and arrested him. Martinez never spoke to Narciso, and Narciso did not realize the dog that bit him was a Whittier police dog. After the police realized Narciso was not the suspected felon for whom they were searching, Downey Police officers released Narciso and arranged for him to obtain medical treatment.
Later on the morning of August 24, 2005, Sergeant Hancock and Officer Reveles of the Whittier Police Department came to interview Narciso regarding the dog bite incident. The officers were in uniform. Reveles acted as translator for Hancock and Narciso, who speaks only Spanish. The interview was recorded. According to the transcript of that interview, the Whittier Police Department officers informed Narciso they had come to obtain his explanation of what had occurred that morning. Narciso relayed the sequence of events, explained the nature of his injuries and showed his wounds to the officers, who took photos. At the conclusion of the interview, Hancock asked Narciso if he had “any questions about anything?” Narciso said he wanted “to know who’s going to cover the ambulance, ... and... [his] medical bills....” Hancock told Narciso he really did not know who would cover those expenses, but told Narciso he could “file a claim with the city.” Hancock then asked Narciso to identify the city in which the incident had occurred. Narciso said “Downey.” Hancock then said Narciso could “check with the City of Downey and he [could] also check with the City of Whittier.” Reveles clarified that Hancock meant Narciso should direct his questions “[n]ot to the police department, [but to] the city, the City Hall, of Downey and also of Whittier.” Narciso asked for the case number, which Hancock promised to provide him before they left, and the interview ended.
On February 23, 2006, Narciso submitted a claim for damages to the City of Downey, pursuant to section 910 of the California Tort Claims Act (CTCA), Government Code section 900 et seq.
All undesignated statutory references are to the Government Code.
In early March 2006, pursuant to Government Code section 6250 et seq., Narciso made a demand for public records on the Downey Police Department, seeking all records and information in Downey’s possession related to the dog attack involving Narciso and members of the Downey Police Department on August 24, 2005. In a response dated March 21, 2006, Downey informed Narciso that, absent a court order, it was unable to provide the requested materials, because the information was protected from disclosure by court rules regarding confidentiality of records related to juveniles.
Narciso alleges that when Downey sent its March 21, 2006 letter, it knew the information Narciso sought was not protected from disclosure under California law. He also alleges that even if the information had been protected, Downey knew Narciso could not have obtained the suggested court order, because he was not the juvenile to whom the letter alluded. The letter from Downey also failed to mention that the dog that bit Narciso was owned by the Whittier Police Department or that its handler was not a member of the Downey Police Department. Narciso alleged that Downey wrongfully withheld this information in violation of Government Code section 6253.1, to prevent him from timely securing available legal remedies.
Narciso filed a federal court action against the City of Downey in August 2007. On October 9, 2007, in the course of that action, the attorney representing Downey wrote a letter to Narciso’s counsel demanding the action be dismissed. The letter was accompanied by a report authored by Martinez. This was the first time Narciso or his counsel learned the dog was owned by the City of Whittier, or that the dog’s handler was employed by Whittier’s police department.
On February 26, 2008, Narciso submitted a claim for damages to the City of Whittier. (§ 910.) Whittier took no action on Narciso’s claim, which it deemed time-barred.
In March 2008, Narciso lodged an amended complaint in a pending federal court action, adding Whittier and Martinez as defendants. The state law claims against these defendants were later dismissed.
Narciso filed the instant action for damages against the City of Whittier and Martinez on September 24, 2008. The operative pleading alleges a cause of action for violation of the California Constitution, article 1, § 13, against both defendants, based on the alleged use of unreasonable force and unlawful arrest. Two claims are asserted solely against the City of Whittier for violation of Civil Code section 52.1, subdivision (b), and for strict liability under the state’s dog bite statute (Civ. Code, § 3342, subd. (a)).
Defendants demurred based principally on their contention that the action was time-barred because Narciso’s claims accrued in August 2005. The trial court agreed, sustained the demurer without leave to amend and dismissed the action. This appeal followed.
DISCUSSION
Although there is some dispute (not relevant here) as to whether the administrative requirements of the CTCA apply to Narciso’s constitutional claim, the parties nevertheless agree the two-year statute of limitations is the same for each claim at issue. (See §§ 901, 945.6, subd., (a)(2); Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208–209 [accrual date for purposes of CTCA is identical to the accrual date that would pertain in an ordinary action between private litigants].) The sole issue on appeal is whether Narciso’s claims accrued in August 2005, or in October 2007.
1. Standard of review
“The demurrer presents an issue of law as to the sufficiency of the alleged facts set out in the pleading. [Citation.] It follows that whether the complaint states sufficient facts to avoid a facial defect [such as the bar of the statute of limitations] is a question of law which may be resolved upon demurrer.” (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 300.) If the allegations bearing upon application of the delayed discovery rule support a single legitimate inference, that question becomes one of law to which we apply an independent standard of review. (Ibid.)
2. Statute of limitations
The material facts are substantially undisputed. Narciso sustained personal injuries in August 2005 after he was bitten by a dog owned by Whittier, and handled by one of its police officers, in the course of a joint agency action in which the Whittier officer assisted Downey officers searching for a suspected felon in a residential neighborhood in Downey. Narciso did not discover that the dog belonged to Whittier until October 2007, when his attorneys received a copy of the August 2005 police report written by Martinez.
By the time Narciso’s counsel discovered the Whittier defendants’ potential liability for Narciso’s personal injuries, and submitted a claim in February 2008, the City of Whittier claimed the six-month period for presenting a claim under the CTCA (§ 911.2) had expired. Narciso argued, and the trial court agreed, that Whittier failed properly to “deny” his claim. (See §§ 910.8 [specifying statutory requirements for denial of CTCA claim]; 913.) Because Whittier failed to actually deny his claim, Narciso had two years from the date of accrual to file this action. (See § 945.6, subd. (a)(2).) Narciso maintains that under the delayed “discovery rule” his claims for personal injuries did not accrue until his attorney received the October 2007 letter from Downey’s counsel. He insists he had no reason to believe Martinez was employed by any police department other than Downey’s at the time of the incident, nor was he given grounds to sustain such a belief in the interview that followed. Thus, he claims he could not reasonably have “determine[d] the involvement of the Whittier personnel until being so informed in October 2007.”
A statute of limitations typically begins to run, and a cause of action accrues, when the plaintiff is injured. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox); Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 (Jolly).) A cause of action accrues when it is complete with all its elements. (Fox, at p. 806.) But, under the delayed “discovery rule, ” accrual of the claim is postponed until the plaintiff discovers or, with the exercise of reasonable diligence, should have discovered his cause of action. (Id. at p. 807; accord Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404–405 (Norgart).) “Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.... In so using the term ‘elements, ’ we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiff suspects facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.” (Fox, at p. 807.) In other words, “[o]nce 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.” (Jolly, at p. 1111.)
Thus, the plaintiff need only be aware of his injury and have knowledge of sufficient facts to place him on actual or inquiry notice that the injury has a negligent cause. If the plaintiff has reason to suspect that someone caused his injury, the fact that the plaintiff lacks knowledge of the identity of a defendant is not a valid basis on which the plaintiff may assert “late accrual” of a cause of action. (Fox, supra, 35 Cal.4th at p. 807 [failure to discover the defendant’s identity does not postpone accrual of a cause of action]; Norgart, supra, 21 Cal.4th at p. 399.) That is because the defendant’s identity is not an element of any cause of action. (Norgart, supra, 21 Cal.4th at p. 399; accord Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932.)
Narciso contends he was not on inquiry notice of wrongdoing on the part of any third party until his attorneys received the October 2007 letter. Until then, he claims to have held a reasonable belief that his sole remedy was against Downey. Narciso relies heavily on Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520 (Bastian) to buttress his argument; that reliance is misplaced.
In Bastian, a driver was killed in an auto accident. A deputy sheriff at the scene placed an empty vodka bottle beside the driver's body. Bastian, a newspaper photographer, took photos of the scene not knowing the bottle had been placed there. Bastian was accused of staging the photo and lost his job as a result. In October 1982, six months after the accident, the driver’s survivors sued Bastian, his newspaper and others. In November 1984, Hall, a deputy sheriff not named in the survivors’ suit, was deposed. Hall admitted having placed the vodka bottle next to the driver’s body. Bastian learned about Hall’s testimony in January 1985. Four days later, he filed a claim against the County of San Luis Obispo, alleging that Hall’s actions had caused him to lose his job, affected his reputation and stature in his profession, and caused him emotional distress. (Bastian, supra, 199 Cal.App.3d at pp. 524–526.)
The Bastian court concluded the discovery rule applied to extend the accrual date of Bastian’s cause of action against the county, because Bastian acted with reasonable diligence in failing to discover Hall’s involvement until nearly three years after the accident. Hall had not been named in the survivors’ suit, which suggested the survivors had lacked reason to believe he had been involved in staging the accident scene. And, as soon as Bastian was sued, he began to investigate whether someone had staged the accident scene. Highway Patrol officers who had been at the scene claimed “‘no knowledge whatsoever’” that the vodka bottle had been placed beside the driver’s body. Bastian had tried, unsuccessfully, to talk to Hall. Others investigating the incident had been similarly rebuffed by Hall and by the county sheriff’s department. (Bastian, supra, 199 Cal.App.3d at pp. 527–528.)
The Bastian court emphasized that although the survivors’ suit put Bastian on notice that someone had moved the vodka bottle and that Hall might know something about it, the test for diligence was “not whether Bastian was successful in his timely investigation of the cause of his injury, but whether his efforts were reasonable. [Citation.]” (Bastian, supra, 199 Cal.App.3d at p. 528, italics added.) And, because facts alleged in Bastian’s complaint would not lead a reasonable mind to conclude that he had not been diligent in his investigation, the county’s demurrer was overruled based on the discovery rule. (Id. at pp. 526–529.)
Here, in contrast, Narciso was told by uniformed Whittier officers who interviewed him on the morning of the incident that he should direct his questions regarding recovery for his medical expenses to the city halls of both Whittier and Downey. There is no evidence that Officer Martinez, Sgt. Hancock or Officer Reveles made any effort to prevent or deter Narciso from discovering the fact that they were at all times acting in their capacities as Whittier police officers. Indeed, there would have been no reason for Sgt. Hancock to have asked Narciso what city the dog bite had occurred in, provide him the incident case number, or to direct him to check with the city halls in both Downey and Whittier, had the officers been trying to masquerade as Downey Police officers or downplay the role of their own department in the incident. On the morning in August 2005, Narciso knew he had been injured, and believed that someone had wrongfully caused his injury. He did not know who was responsible, but he asked who might compensate him for his injuries and was told to check with the administrations of both cities. He and his counsel chose to pursue just one for almost 2 and a half years.
In Bastian, as soon as he was named in the survivors’ suit, the plaintiff made a reasonable effort to inquire whether someone put the bottle near the victim’s body and, if so, who. That put the plaintiff on notice that someone may have moved the vodka bottle, and caused the plaintiff’s injuries. The plaintiff’s investigation did not actually lead him to discover that Hall and the County of San Luis Obispo were liable for his injuries, because he was rebuffed by Hall and was told by Highway Patrol officers who had been at the scene of the accident that they had “‘no knowledge whatsoever’” the bottle had been moved. (Bastian, supra, 199 Cal.App.3d at pp. 527–528.) Narciso claims his case resembles Bastian in this respect because the City of Downey failed from the outset to reveal Whittier’s involvement, and refused to tell his attorneys anything other than to say (falsely) that the information Narciso sought related to a juvenile and was protected from disclosure.
Narciso’s argument misses the mark. The pivotal aspect in which this case is unlike Bastian, is that Narciso sat on his rights and waited for the facts to find him. By his own admission, Narciso suspected wrongdoing from the moment he was bitten, although he mistakenly believed the sole wrongdoer was the Downey Police Department. But Narciso cannot complain about Downey’s failure to point out Whittier’s involvement in the incident as a substitute for his own failure to conduct a reasonable investigation. Even if Downey had a duty to inform Narciso’s counsel of Whittier’s potential liability (and Narciso identifies no basis for such a duty), it is unreasonable for Narciso to rely on an adversary to determine the liability of others. (See Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1295; Greene v. State of California (1990) 222 Cal.App.3d 117, 122–123.) Rather, it was the responsibility of Narciso and his counsel to conduct a reasonable and independent investigation and timely file the appropriate claims. (DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 864–865 [holding that party’s reliance on an adversary’s statement that a single entity was responsible for plaintiff’s injury in the face of the statute of limitations was inexcusable neglect].)
Moreover, Narciso’s belief that his only avenue for relief was against Downey is not germane to whether he suspected a negligent cause for his injury. Narciso’s argument places an improper emphasis on his awareness of the legal consequence of relevant facts. “[I]t is the discovery of facts, not their legal significance, that starts the statute.” (Jolly, supra, 44 Cal.3d at p. 1113.) In determining whether one suspects a “wrong, ” “wrongdoing, ” or “wrongful” conduct, the Supreme Court has explained that these terms are used in their lay sense. (Id. at p. 1110, fn. 7.) Narciso’s causes of action accrued when he suspected that police wrongdoing caused him harm. His ignorance of the identity of who was responsible or of the legal remedies available to him is irrelevant to when the statute began to run. Narciso’s persistent focus on the identity of the wrongdoer and the legal significance of the facts giving rise to a cause of action is misplaced; neither affects accrual of a cause of action.
On the date of the incident, Narciso knew he had sustained injuries and that those injuries had been caused by someone’s wrongful conduct. This was sufficient to put him on inquiry of the need to investigate, through sources available to him-including both the administrative offices of the cities of Whittier and Downey to which he had been specifically directed-the identity of any other possible defendants. Accordingly, the trial court correctly concluded Narciso’s claims accrued in August 2005, and that he had reason to believe at that time that someone or some entity other than Downey may have been responsible for his injuries.
The action is time-barred, and the demurrer was properly sustained without leave to amend on that ground.
DISPOSITION
The judgment is affirmed.
I concur: ROTHSCHILD, J., MALLANO, P. J., Dissenting.
Plaintiff was arrested in the City of Downey by Downey police officers. In connection with the arrest, he was bitten by a dog, which, unbeknownced to him, was being handled by a Whittier police officer. He did not know a Whittier police officer was involved. When two Whittier police officers interviewed him the next day, they did not tell him that the dog that bit him was theirs. Rather, in response to his question as to who was going to pay his medical bills, he was told, “What you can, what you can, he can not directly answer your questions, but what you can do, check, check with the City of Downey and also the City of Whittier.” Later, when plaintiff made a demand for public records from the Downey Police Department regarding the incident, he was rebuffed.
Although plaintiff was told he could “check” with the City of Whittier as well as the City of Downey, he was not given a reason why he ought to check with the City of Whittier. He did not know that a Whittier police officer was involved in the incident, and the two Whittier police officers interviewing him did not inform him that the dog was theirs. Rather, he was told what he “can do” is check with a city that apparently had nothing to do with the incident. It was reasonable for plaintiff to conclude that the City of Downey was solely at fault and not press his claim against the City of Whittier, and, accordingly, he is entitled to the benefit of the belated discovery rule. (Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520.)
I would reverse.
MALLANO, P. J.