Opinion
D071101
09-05-2017
CHARLENE HEADRICK, et al., Plaintiffs and Appellants, v. KYLE CURTIS DUBOIS, Defendant and Respondent.
Gerald E. Smith for Plaintiffs and Appellants. Alderman & Hilgers and Allison R. Hilgers for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00005340-CU-PA-CTL) APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed. Gerald E. Smith for Plaintiffs and Appellants. Alderman & Hilgers and Allison R. Hilgers for Defendant and Respondent.
On February 16, 2016, counsel for plaintiffs and appellants Charlene and Robert Headrick (Plaintiffs) filed a complaint on their behalf, seeking damages for personal injuries from an automobile accident involving defendant and respondent Kyle Curtis Dubois (Defendant). They alleged the accident took place on January 18, 2014.
In response, Defendant demurred to the complaint on the basis that it was time-barred by the applicable statute of limitations, Code of Civil Procedure section 335.1. Defendant argued the apparent defect could not be cured.
All further statutory references are to this code unless noted. Section 335.1 requires that a personal injury action be filed within two years, where based on alleged wrongful acts or neglect of another.
The day before the scheduled hearing, Plaintiffs' attorney submitted an untimely filed set of opposition papers that requested relief from default, based upon the attorney's affidavit admitting to mistake, inadvertence, surprise or neglect in failing to file the complaint in a timely fashion. (§ 473, subd. (b).) The court sustained the demurrer without leave to amend and dismissed the complaint. (Maynard v. Brandon (2005) 36 Cal.4th 364, 372 ["Notwithstanding the broad construction afforded section 473, subdivision (b), the statute does not offer relief from mandatory deadlines deemed jurisdictional in nature," and does not excuse "a party's failure to comply with the applicable limitations period in which to institute an action"]; Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th 927, 930 (Castro) [attorney error relief provisions in § 473, subd. (b) equally apply to dismissed plaintiffs or defaulted defendants, in appropriate circumstances].)
On appeal, Plaintiffs contend they made an adequate showing of their attorney's excusable error to justify relief, or that estoppel should apply against any assertion of the statutory limitations bar, due to the existence of settlement negotiations between counsel. Alternatively, Plaintiffs request an equitable ruling that would toll the applicable limitations period. We find no error or abuse of discretion and affirm the judgment of dismissal.
I
COMPLAINT AND DEMURRER
In their form complaint against Defendant for personal injury, Plaintiffs attached a single cause of action, motor vehicle negligence during the January 18, 2014 accident. The complaint shows a filing date of February 16, as well as a canceled file stamp from February 5, 2016 (because submitted to the incorrect court division). In his demurrers, Defendant argued the complaint disclosed a defense that would bar recovery, the running of the statute of limitations.
The minute order after hearing states that Plaintiffs filed no opposition to the demurrer. However, the record on appeal includes opposition filed the day before the hearing. In their points and authorities, Plaintiffs requested that the court disregard defects in the pleadings that did not affect the substantial rights of the parties. (§§ 452, 475.) Plaintiffs sought to have the complaint liberally construed and to have inferences drawn in their favor. They claimed in their points and authorities that settlement negotiations had taken place, but there was delay in obtaining medical records to substantiate the damages requested for one of the Plaintiffs. At the relevant times, Plaintiffs' attorney had experienced significant disruptions in his office, as well as personal problems, and due to those stresses, he relied heavily on staff persons. Plaintiffs contended this qualified as excusable neglect under section 473, subdivision (b) and entitled them to relief from the late filing, and argued no prejudice to Defendant would result if they were allowed to have their day in court.
In support of his opposition, Plaintiffs' attorney provided a declaration enumerating the problems he had had in obtaining medical records and admitting that despite discussions with his staff persons, he had incorrectly calendared the date that the statute would run for the filing of the complaint.
In their reply brief, Plaintiffs add another theory in support of tolling of the applicable limitations period, that they just learned that Defendant might have been incarcerated at the relevant times. We cannot consider such vaguely argued claims newly raised in the reply brief or at oral argument.
Following argument from each counsel, the court sustained the demurrer without leave to amend, for failure to state sufficient facts to constitute a cause of action. The minute order states in relevant part, "Plaintiffs have not opposed the demurrer." Judgment of dismissal was entered and Plaintiffs appeal.
The minute order states the matter was not reported. Plaintiffs did not designate any reporter's transcript as part of the appellate record.
II
STANDARDS ON APPEAL
"When a trial court sustains a demurrer on the ground that the complaint 'does not state facts sufficient to constitute a cause of action' [citation], the appellate court conducts a de novo review—that is, it independently decides whether the allegations are sufficient." (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235.) We treat a demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We seek to give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
When a demurrer is based on an affirmative defense, such as a limitations provision, the court inquires if the face of the complaint discloses that the action is necessarily barred. (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420 ["for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed"].) The courts refrain from characterizing a limitations defense as either "favored" or "disfavored." (Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1148-1149.) There are two competing public policies involved, statutory limitations provisions that promote repose from tardy claims, compared to otherwise strong preferences for dispositions on the merits. These policies are " 'equally strong, the one being no less important or substantial than the other.' " (Ibid.)
A plaintiff may attempt, within the complaint itself, to make a showing of excuse for late filing in anticipation of a limitations defense. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, §§ 929-930, pp. 344-346.) Pleaded facts that may justify avoidance of a statutory bar include circumstances of fraud or mistake that led to delayed discovery or accrual of the claim. (Ibid.; County of Alameda v. Superior Court (1987) 195 Cal.App.3d 1283, 1286.)
The applicability of the mandatory relief provision in section 473, subdivision (b), or of the relevant equitable principles, does not turn upon disputed facts in this case. These facts primarily present issues of law that are subject to de novo review, except we utilize an abuse of discretion standard to review the trial court's decision to deny leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The burden is on the Plaintiffs to demonstrate how the complaint can be amended to state a valid cause of action. (Ibid.)
III
ANALYSIS
A. Late Filing of Opposition
The minute order after the hearing on the demurrer, at which Plaintiffs' counsel appeared, states that they did not oppose the demurrer. Generally, opposing papers must be filed and served nine court days before the scheduled hearing, which occurred on June 24, 2016. (§ 1005, subd. (a).) These papers were filed on June 23, and do not show any indication that an order shortening time was sought. (Cal. Rules of Court, rule 3.1300(b); all further rule references are to the Cal. Rules of Court.) This rule also prescribes in its subsection (d) that "[i]f the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate." (Rule 3.1300(d).) Here, the minutes seem to indicate that any opposition was not received, or if so, not considered, which was within the discretion of the trial court.
In any case, the de novo nature of our review of the appropriateness of the demurrer ruling allows us to consider the entire record of file stamped documents, as they have been provided to us. We first consider Plaintiffs' objections to the statutory aspects of the ruling, and then turn to their equitable arguments.
B. Section 473, Subdivision (b)
To obtain relief under section 473, subdivision (b) based on an attorney's mistake, inadvertence, surprise, or neglect, a party must present a timely application for relief in proper form and accompanied by the attorney's affidavit attesting to such an error. However, the court need not grant relief if it "finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." Since section 473, subdivision (b) was amended in 1992, its provisions allowing either discretionary or mandatory relief for attorney error are, in appropriate circumstances, applicable to either dismissed plaintiffs or defendants. (Castro, supra, 47 Cal.App.4th 927, 930; Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 133-135 [holding that the extension of mandatory relief for dismissals resulting from attorney error in § 473, subd. (b) was inapplicable to a dismissal due to the attorney's failure to comply with a 90-day limitations provision to sue and serve summons under Gov. Code, § 66499.37].)
In Castro, supra, 47 Cal.App.4th 927, a dismissed plaintiff was seeking relief from a dismissal, on the grounds that her attorney had failed to comply with the applicable statute of limitations because of attorney mistake, inadvertence, surprise or neglect. (Id. at pp. 928-929.) In that case, the attorney had missed the deadline to file an action after her government tort claim was rejected. (Gov. Code, § 945.6, subd. (a)(1); Castro, supra, at p. 929.) The appellate court upheld a dismissal on demurrer, on the grounds that even though section 473, subdivision (b) had been extended to apply to some plaintiffs, it did not provide relief for an attorney's error that led to dismissal for failure to comply with an applicable statute of limitations. (Castro, supra, at p. 930.) There was nothing in the history of the attorney relief provision in the statute that indicated an intention to change the law and create mandatory relief from the operation of separate statutes of limitations. (Id. at p. 933.)
Contrary to Plaintiffs' contentions here, the principles in Castro, supra, 47 Cal.App.4th 927 and cases following it, are not distinguishable simply because Castro involved government tort claims requirements. Rather, the court interpreted the added terms of section 473, subdivision (b) as not intended to interfere with a different aspect of the legal system, statutes of limitations in general, which are " ' "vital to the welfare of society and are favored in the law." ' [Citation.] '[S]tatute[s] of limitations traditionally play[] a valid role in laying stale causes to rest and providing finality and repose without the need for any court adjudication.' " (Castro, supra, at p. 933.)
To the extent Plaintiffs are claiming the court erred in denying relief under the statute, they cannot show they satisfied its criteria. Case law uniformly holds that section 473, subdivision (b) was not intended to provide mandatory relief for this type of attorney misjudgment or error. (Castro, supra, 47 Cal.App.4th 927, 933; Sprague v. County of San Diego, supra, 106 Cal.App.4th 119, 133-135; Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1211 [§ 473, subd. (b) does not offer relief from 100-day limitation for petition to vacate arbitration award, which is a mandatory deadline deemed jurisdictional in nature].) Plaintiffs have identified no viable means of amending to bring themselves within the jurisdictional time for filing of the action, as correctly argued in the demurrer.
C. Estoppel
Plaintiffs next argue entitlement to relief based on equitable estoppel or tolling of the filing deadline. In their late filed opposition papers, Plaintiffs contended that settlement negotiations were still ongoing about one of the Plaintiffs' personal injury portion of the dispute, and there was delay in obtaining further medical records. In the briefs on appeal, Plaintiffs add claims that Defendant's insurer had accepted liability in the case and agreed to pay some damages, but defense counsel for Defendant was requesting a global settlement and more records were needed.
A defendant may be estopped from raising a statute of limitations defense if the plaintiff can show there was reasonable reliance on the defendant's factual misrepresentations about the existence of a claim. (Vu v. Prudential Property & Casualty Ins. Co., supra, 26 Cal.4th 1142, 1152.) " 'An estoppel may arise although there was no designed fraud on the part of the person sought to be estopped. [Citation.] To create an equitable estoppel, "it is enough if the party has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss." . . . ". . . Where the delay in commencing action is induced by the conduct of the defendant it cannot be availed of by him as a defense." ' " (Id. at p. 1153.)
Plaintiffs have not provided any basis to allege that Defendant misled them and thus prevented them from taking more timely action. Instead, they merely argue that their attorney made a number of mistakes during his processing of the case. Such unilateral conduct by their counsel does not qualify them to assert equitable estoppel or tolling as a matter of law. The court did not err in sustaining the demurrer, by relying on the facts disclosed by the face of the pleading.
D. Equitable Relief
"A court of general jurisdiction has inherent equity power, aside from statutory authorization, to vacate and set aside default judgments obtained through extrinsic fraud or mistake." (Bloniarz v. Roloson (1969) 70 Cal.2d 143, 146; Weitz v. Yankowsky (1966) 63 Cal.2d 849, 855; Olivera v. Grace (1942) 19 Cal.2d 570, 576.) This power may be invoked by motion or by an independent action in equity. (Ibid.)
In such a way, the courts may implement various recognized equitable exceptions or modifications to the usual rules governing limitations periods, in view of the policy goals of such limitations defenses. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192.) "These doctrines may alter the rules governing either the initial accrual of a claim, the subsequent running of the limitations period, or both." (Ibid.) Examples are the discovery rule and tolling of the limitations period, if the defendant's deceptive conduct caused the plaintiff's claim to be concealed or grow stale. (Ibid.) More generally, equitable tolling may suspend or extend a statute of limitations, and the continuing violation or continuous accrual doctrines will allow aggregation or separate consideration of a series of injuries, for purposes of evaluating the timeliness of a filing. (Ibid.)
Plaintiffs request that we view the record as showing that there was some kind of extrinsic error warranting the relief described above, because of their own attorney's calendaring error. This contention is not well taken, because they cannot point to anything in the record showing that anything done by Defendant deprived them of their opportunity to pursue their case. "Fraud is extrinsic where the defrauded party was deprived of the opportunity to present his or her claim or defense to the court, that is, where he or she was kept in ignorance or in some other manner, other than from his or her own conduct, fraudulently prevented from fully participating in the proceeding." (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1068.)
In contrast, intrinsic fraud or mistake occurs "if a party has been given notice of the action and has not been prevented from participating therein, that is, if he or she had the opportunity to present his or her case and to protect himself or herself from any mistake or fraud of his or her adversary, but unreasonably neglected to do so." (In re Marriage of Stevenot, supra, 154 Cal.App.3d 1051, 1069.) "When a party was represented by counsel, absent concealment, any fraud will usually be intrinsic." (Id. at p. 1070.) This record, showing that Plaintiffs' counsel waited to obtain more medical records, had office and personal problems and then miscalendared the ending of the limitations period, is consistent only with intrinsic mistake, which does not afford them a basis for estoppel against Defendant to invoke the statutory time limit of section 335.1.
In Castro, supra, 47 Cal.App.4th 927, 933, the court stated the rule that "application of a limitations statute, unlike the equitable doctrine of laches, requires no showing of prejudice." (Ibid.) To the extent Plaintiffs now claim prejudice from the loss of their cause of action and seek equitable relief for their attorney's mistake, their remedy is not against Defendant. (See Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898-900 [incorrect attorney advice causing delay in filing of complaint not correctable by allowing late filing].) Accordingly, there was no abuse of discretion or error in the order denying leave to amend and the judgment dismissing the complaint.
DISPOSITION
The judgment of dismissal is affirmed. Costs are awarded to Respondent.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
O'ROURKE, J. /s/_________
DATO, J.