Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Donald Black, Judge, Super. Ct. No. 04CECG 00370.
Tritt & Tritt, James F. Tritt and Robert Q Bergstrom, for Plaintiff and Appellant Brooke James-Higgins.
Emerson, Corey & Sorensen, James D. Emerson and Ryan D. Libke, for Defendant and Respondent.
OPINION
Ardaiz, P. J.
INTRODUCTION
This is an appeal from a demurrer to a Second Amended Complaint (SAC) and from the accompanying order denying leave to amend the SAC. The superior court concluded that demurrer should be granted because the plaintiff did not timely present the underlying claim to the public entity. For the following reasons, we reverse.
Appellant also has filed a Motion for Judicial Notice of an expert report. According to appellant, the expert report shows that appellant has a “reasonable basis to amend the second amended complaint to elaborate on the theory of liability in response to a claim that the defect was ‘trivial.’” We deny the motion for judicial notice on two grounds. First, appellant admits that the expert report was not before the superior court when it decided the demurrer to the Second Amended Complaint. Thus, we will grant the motion only upon a showing of exceptional circumstances, which we do not find exist in this case. (Vons. Cos., Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn.3; Brosterhous v. State Bar of California (1995) 12 Cal.4th 315, 325.) Second, respondent has conceded that it is not raising the issue of trivial defect on appeal, and we decline to address that issue. Thus, the expert report is irrelevant.
FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiff’s Claims and Complaint
On July 14, 2003, Barbara James-Higgins, as guardian ad litem for Brooke James-Higgins (claimant or plaintiff), filed a claim for personal injury and damages with the Clovis Unified School District (CUSD). The claim asserted that Brooke had lost the use of her left eye as a result of injuries sustained when she ran into the protruding hasp of a gate on the premises of Weldon School in “January 2003.” The claim provided a name and post office address. It was signed by claimant’s attorney.
On the same day, CUSD sent a letter to claimant’s attorney, notifying him that the claim was insufficient because it was not submitted on a claim form provided by CUSD, citing Government Code section 910.4.
On August 18, 2003, claimant filed a claim with CUSD on the claim form, but this time indicated that the accident took place on February 18, 2003. The CUSD Board of Directors (Board) denied the claim and sent a notice of rejection on September 11, 2003. The record does not indicate that the Board sent a notice informing claimant that the claim was filed untimely.
B. Defendant’s Motion for Summary Judgment and Plaintiff’s Motion to Amend
On February 10, 2004, claimant filed an action in the Fresno County Superior Court seeking damages for premises liability and general negligence. The Complaint indicated that the incident giving rise to the action occurred on February 18, 2003. The Complaint alleged that plaintiff had timely presented the claim to CUSD. CUSD answered on July 16, 2004.
On March 21, 2005, CUSD filed a motion for summary judgment or summary adjudication on the ground that plaintiff failed to present a timely claim before filing suit. CUSD presented evidence, based on plaintiff’s responses to form interrogatories, showing that the accident occurred on January 7, 2003. CUSD also presented evidence that plaintiff first attempted to file a claim on July 14, 2003, and then filed a second claim on August 18, 2003. Based upon this evidence, CUSD asserted that plaintiff failed to file a claim within 60 days of the date that the cause of action accrued, and thus that the complaint should be dismissed for failure to comply with the timely claim presentation requirement.
On May 31, 2005, plaintiff filed an opposition to the motion for summary judgment or summary adjudication. Plaintiff argued that the claim was filed timely on August 18, 2003 because the injury to the eye was not discovered until February 18, 2003. Plaintiff also argued that CSUD had waived the timely presentation requirement by not sending out the required notice. Plaintiff conceded that the date of the injury was January 7, 2003, and that she failed to apply for relief from a late claim within one year.
In defendant’s reply in support of the motion for summary judgment or summary adjudication, CUSD argued that it did not waive the timely claim presentation requirement because claimant “misrepresented” the date on the claim. It asserted that it is barred by law from making factual determinations about the timeliness of a claim, citing Scott v. County of Los Angeles (1977) 73 Cal.App.3d 476, 481, and Mandjik v. Eden Township Hospital Dist. (1992) 4 Cal.App.4th 1488, 1500.
On May 25, 2005, plaintiff filed and served a motion to amend the complaint, which was heard concurrently with the motion for summary judgment on June 14, 2005. The motion sought to amend the complaint to conform with the facts known to plaintiff, specifically that the accident occurred on January 7, 2003, and that the eye injury was not discovered until February 18, 2003. Mrs. James-Higgins filed a Declaration in Support of the Motion to Amend the Complaint. Mrs. James-Higgins attached two exhibits to her declaration, one of which detailed Brooke’s history of eye problems. Specifically, Brooke had the lens in her left eye removed when she was five weeks old because it would have caused her left eye to form a cataract. Her parent had to insert a contact lens in her left eye and patch her right eye daily. In July of 2002, Brooke had a lens implanted in her left eye, which allowed her parent to finally stop having to insert a contact lens into the left eye.
According to that same declaration, Mrs. James-Higgins was present at the time of the accident. She stated that she saw Brooke run into the gate, fall and then cry. Mrs. James-Higgins also stated: After Brooke fell, she “put her hand over her left eye, but I did not see any injury to her eye and I saw no marks on her face.” “Afterward I noticed that she was resistant to the patching of the right eye.” “[W]hen I patched her right eye afterward, she insisted I carry her. She did not roam around as she usually did. She felt her way into the house from the front door to the living room. I began to patch her less and less because she was not cooperative about patching. With hindsight, I now realize this was because of her left eye injury. At the time, however, I did not realize the injury.” According to Mrs. James-Higgins, she “did not realize the injury until [she] took her for her appointment February 18, 2003 at the Vision Care Center.”
Mrs. James-Higgins stated that she thought Brooke’s unusual behavior was because “maybe her eyesight had regressed because we had not been patching enough, and not at all over Christmas vacation.”
Defendant opposed the motion to amend on the ground that the motion was not timely noticed or filed. Defendant also asserted that the amendments did not “specifically plead facts showing [Mrs. James-Higgins’s] inability to have made earlier discovery [of the eye injury] despite reasonable diligence.” According to defendant, Mrs. James-Higgins “had reasons to suspect an injury when Brooke ran into the gate, started to cry, and put her hand to her eye. The cause of action accrued on the day the accident happened, and there are no facts which would indicate that the discovery rule should apply.”
In its reply, plaintiff asserted the following: “The occurrence [of the accident] put [Mrs. James-Higgins] on notice that she should inspect for injury. However, upon inspection no injury was found. Moreover, the conduct of the child was consistent with other pre-occurrence behaviors of the child. That is, the child had an aversion to patching which continued. The immediate conduct of the child afterward was consistent with a child bumping into an object unexpectedly and falling down, and did not necessarily indicate an injury to the eye.”
After hearing oral argument, the superior court took the matter under submission and served an order that the motion to amend be granted. In its order, the court concluded that although the motion to amend was untimely, it should be granted in the interest of justice. The motion for summary judgment was denied without prejudice, and the superior court allowed CUSD to conduct discovery on the issue of the alleged late discovery of the eye injury. The court did not rule on the issue of whether CUSD had waived the timely claim presentment requirement.
C. First Amended Complaint and Defendant’s Demurrer
Plaintiff filed her First Amended Complaint (FAC) on July 5, 2005. In the FAC, plaintiff alleged that the date of the accident occurred on January 7, 2003, and “[t]he injury was not discovered until February 18, 2003, when the minor was examined by eye doctors. Prior to that date, Barbara James-Higgins the Guardian ad Litem of the minor, and mother of the minor, reasonably failed to realize the injury, since she found no injury on examination. Thus the action did not accrue until February 18, 2003.”
CUSD filed a demurrer based upon four grounds. First, according to CUSD, the FAC contained different facts from that of the claim: the FAC stated that the date of the incident was January 7, 2003, whereas the date of the claim stated it was February 18, 2003. CUSD also asserted that the fact that the date of the occurrence was not included in the claim meant that it was unable to determine whether the claim was timely filed and thus CUSD did not waive its right to require timely presentation. Second, according to CUSD, the delayed discovery doctrine does not apply to actions for premises liability against public entities. Third, according to CUSD, even if the discovery rule was applicable, plaintiff failed to plead facts sufficient to support delayed discovery. Specifically, CUSD asserted that the inspection by Mrs. James-Higgins of her daughter after the collision was insufficient to constitute reasonable diligence. Rather, CUSD suggested that reasonable diligence requires that Mrs. James-Higgins have an eye care professional inspect Brooke after the accident. Finally, CUSD argued that demurrer was proper because the allegations regarding the hasp of the gate showed that it was not a dangerous condition of public property but was a trivial defect instead.
CUSD also filed a motion to strike plaintiff’s legal conclusion that the cause of action accrued on February 18, 2003.
Plaintiff filed oppositions to the demurrer and to the motion to strike. In the opposition to the demurrer, plaintiff asserted that the FAC did not impermissibly vary from the facts in the claim presented to CUSD. Plaintiff also argued that delayed discovery applies in this case because the doctrine is applicable to all causes of action and in this case the “guardian ad litem had no indication of any appreciable injury to her child.” Finally, plaintiff argued that the defect was not trivial. Neither of the oppositions argued that defendant had waived the timely claim presentment requirement.
In defendant’s reply, CUSD argued that “[p]laintiff needs to allege facts showing that the mother conducted a reasonable investigation and that investigation could not have discovered the injury. This investigation includes seeking information from experts were [sic] appropriate.”
The superior court issued a tentative ruling sustaining the demurrer with leave to amend and granting the motion to strike, and the tentative ruling became the order of the court. The court ruled that the allegations in the FAC regarding the delayed discovery of the injury were insufficient. The court rejected the defendant’s argument that the complaint impermissibly varied from the claim and also rejected the argument that the defect was trivial.
The superior court also struck the legal conclusion that the cause of action accrued on February 18, 2003.
D. Second Amended Complaint and Plaintiff’s Demurrer
Following demurrer, the parties stipulated to continue the trial date until September 25, 2006. Plaintiff was afforded an extension of time to file the Second Amended Complaint (SAC) until November 21, 2005. Plaintiff did not serve the SAC until December 19, 2005.
The SAC contained the following allegations:
“Barbara James-Higgins, the guardian ad litem of the minor and the mother of the minor was with the minor at the time of the accident and examined the minor, but found no injury. The injury to the eye was not an injury which could have reasonably have been ascertained by examination by a lay person such as Barbara James-Higgins and neither she nor anyone else discovered that an injury to the eye had occurred until the minor was examined by eye doctors on February 18, 2003 at which time the doctors determined that an injury had occurred. The failure to discover the injury prior to February 18, 2003 was reasonable.”
Defendant also demurred to the SAC. CUSD argued that the “discovery rule does not apply when the mother witnessed the accident and the allegations indicate that she suspected injury.” According to CUSD, “[t]he allegations show that the mother witnessed the traumatic event and inspected the girl for outward signs of injury. These facts indicate that the mother had suspicion of injury, and this suspicion is sufficient to begin the statutory period. The allegation that she did not appreciate that a serious injury occurred is of no consequence.”
According to CSUD, “[e]ven if the mother could not detect injury, there is an obligation to seek out those that could. The allegations indicate that the injury was, in fact, detectable by medical examination. In order for the discovery rule to apply, Plaintiff would need to allege that medical examination would not have revealed the injury.”
In support of the demurrer to the SAC, defendant served and filed a Request for Judicial Notice. Defendant requested that the court take judicial notice of certain facts supplied by plaintiff in support of her opposition to the motion for summary judgment and request for leave to amend, based upon Del. E. Webb Corporation v. Structural Materials Company (1981) 123 Cal.App.3d 593, 604-605 and Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 83.
Defendant requested that the following facts be judicially noticed:
“(1) That Plaintiff filed her claim with Clovis Unified School District on August 18, 2003.
“(2) That Plaintiff’s mother and guardian, Barbara James-Higgins, admitted in a statement submitted to the court … that she observed Brooke reach up to grasp at her eye after Brooke ran into the gate, and that the girl was screaming and crying.
“(3) That Plaintiff’s mother and guardian, Barbara James-Higgins, admitted in a statement submitted to the court … that she observed Brooke, on the day after the incident, have to feel her way around the house to get from the front door to the living room. Brooke also insisted on being carried and refrained from usual roaming around at the cafeteria. Mrs. James-Higgins admitted that her behavior on the day following the incident was unusual.
“(4) That Plaintiff’s mother [and guardian] chronicled the child’s eye problems in a statement submitted to the court.… Brooke had her lens removed from her left eye in March of 2000, when she was five weeks old. By July of 2002, a lens was implanted in her left eye.”
Plaintiff did not object to the court taking judicial notice of these facts.
In the opposition to the demurrer, plaintiff argued that she had sufficiently pleaded facts sufficient to support delayed discovery and that the issues raised by defendant were issues for jury trial. Plaintiff also asserted that the claim should be judicially noticed as being filed on July 14, 2003, since that was the date that plaintiff had filed the first claim. Plaintiff, however, conceded that the earlier date would not impact the issue of delayed discovery since the earlier date would still render the claim untimely.
The superior court sustained the demurrer without leave to amend in a ruling dated March 8, 2006. The court issued a tentative ruling prior to the date of the hearing, but no party requested oral argument. The tentative ruling then became the order of the court.
The superior court took judicial notice of the fact that plaintiff’s claim was filed on August 18, 2003, and of the Declaration of Barbara James-Higgins in Support of the Motion to Amend Complaint. The ruling cited Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797 (Fox), for the rule that under the delayed discovery rule, the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed the factual basis for that particular cause of action. The court noted that plaintiff’s mother was aware on January 7, 2003 that her daughter suffered a collision with the gate, which meant that the mother had suspicion of injury and required that the mother “go and find the facts.” The court concluded that “plaintiff’s failure to immediately detect the medically specific damage to the eye and its extent does not support a delayed discovery theory in any event.” The superior court also disagreed that the filing date of plaintiff’s claim should relate back to the time she first attempted to file a claim, citing to former Government Code section 910.4, which provides that a claimant “shall” use the designated form, and that the claim may be returned if it was not presented on the correct form.
All further statutory citations are to the Government Code unless otherwise stated.
Plaintiff timely appealed.
DISCUSSION
I.
Standard of Review
“An appellate court must independently decide questions of law without deference to the trial court’s conclusions. [Citation.] A demurrer tests only the sufficiency of the pleadings and, as such, raises only a question of law. [Citation.]” (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1304-1305.)
“In reviewing a demurrer that is sustained without leave to amend, an appellate court assumes the truth of (1) all facts properly pleaded by the plaintiff, (2) all facts contained in exhibits to the complaint, (3) all facts that are properly the subject of judicial notice, and (4) all facts that reasonably may be inferred from the foregoing facts. [Citations.] The reviewing court does not assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Id. at p. 1305.)
“The reviewing court must reverse the judgment if (1) the complaint, liberally construed, has stated a cause of action under any possible legal theory; or (2) the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.] The burden of proving a reasonable possibility of cure is squarely on the plaintiff. [Citation.]” (Ibid.)
II.
Timely Claim Presentment Requirement
The California Supreme Court recently has explained the current state of the law concerning the timely claim presentment requirement.
“Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity. (Gov. Code, § 911.2; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 (Bodde), but see Gov. Code, § 905[itemized exceptions not relevant here].) … Since 1988, such claims must be presented to the government entity no later than six months after the cause of action accrues. (Gov. Code, § 911.2, as amended by Stats. 1987, ch. 1208, § 3, p. 4306.) Accrual of the cause of action for purposes of the government claims statute is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants. (Gov. Code, § 901; Whitfield v. Roth (1974) 10 Cal.3d 874, 884-885; Jefferson v. County of Kern (2002) 98 Cal.App.4th 606, 615; Dujardin v. Ventura County Gen. Hosp. (1977) 69 Cal.App.3d 350, 355.)
“Timely claim presentation is not merely a procedural requirement, but is, as this court long ago concluded, ‘“‘a condition precedent to plaintiff’s maintaining an action against defendant’”’ (Bodde, supra, 32 Cal.4th at p. 1240, quoting Williams v. Horvath (1976) 16 Cal.3d 834, 842), and thus an element of the plaintiff’s cause of action. (Bodde, supra, at p. 1240.) Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action. (Bodde, supra, at p. 1245.)” (Shirk v. Vista Unified School Dist. 42 Cal.4th 201, 208-210.)
Thus, we must determine when plaintiff presented the claim to CUSD and when the causes of action asserted in the claim accrued in order to determine whether plaintiff’s complaint, as amended, is subject to a general demurrer on the ground that plaintiff did not satisfy the timely claim presentation requirement.
A. When Claim Was Presented To Public Entity
The superior court took judicial notice of the fact that plaintiff filed a claim with CUSD on August 18, 2003. Plaintiff contended that the claim was actually filed on July 14, 2003, but the superior court rejected this argument citing former section 910.4. We agree with plaintiff that the claim was filed on July 14, 2003.
Former section 910.4 provides:
“The board shall provide forms specifying the information to be contained in claims against the public entity. The person presenting a claim shall use the form in order that his or her claim is deemed in conformity with Sections 910 and 910.2. A claim may be returned to the person if it was not presented using the form. Any claim returned to a person may be resubmitted using the appropriate form.” (Former Gov. Code, § 910.4, Stats. 2002, ch. 1124 § 6 (AB 3000) effective September 30, 2002, effective March 30, 2003)
Thus, the plain language of former section 910.4 indicates that claimants must file their claims on forms promulgated by the public entity. However, a claim not filed on an official form may still satisfy the requirements of the Tort Claims Act (Gov. Code, § 810 et seq.) under the doctrine of substantial compliance. (Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 37-38 (Connelly).) “The test for substantial compliance is whether the face of the filed claim discloses sufficient information to enable the public entity to make an adequate investigation of the claim’s merits and settle it without the expense of litigation. [Citation.]” (Id. at p. 38)
Here, the claim filed on July 14, 2003, substantially complied with the requirements of the Tort Claims Act, including sections 910 and 910.2. The July 14 claim provided the following information:
“(a) The name and post office address of the claimant.
“(b) The post office address to which the person presenting the claim desires notices to be sent.
“(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.
“(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.
“(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.
“(f) The amount claimed if it totals less than ten thousand dollars ($10,000) .… If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.” (Gov. Code, § 910 (1998).)
The July 14 claim also was “signed by the claimant or by some person on his behalf.” (Gov. Code, § 910.2 (1963).)
Thus, although the July 14, 2003 claim was not on the official form promulgated by CUSD, the July 14 claim substantially complied with the requirements relating to the form and content of a claim “to enable the public entity to make an adequate investigation of the claim’s merits and settle it without the expense of litigation. [Citation.]” (Connelly, supra, 146 Cal.App.4th at p. 38.) The subsequent claim filed on August 18, 2003 was the same claim as the July 14 claim, except that the August 18 claim was filed on the official form. Thus, under the doctrine of substantial compliance, plaintiff’s claim in this case related back to the July 14, 2003 date.
B. When Cause of Action Asserted in Claim Against Public Entity Accrues
1. Accrual of Cause of Action
In this case, the statute of limitations applicable to plaintiff’s claim is found in California Code of Civil Procedure section 335.1, which provides a two-year statute for personal injuries caused by the negligence of another. Under the common law rule, the statute of limitations commences when the last element essential to a cause of action occurs. If the last element is damage or injury, the statute of limitations begins to run on the occurrence of “appreciable and actual harm” that consists of more than nominal damages. (Davies v. Krasna (1975) 14 Cal.3d 502, 514; Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611, 1622-1624; San Francisco Unified School Dist. v. W.R. Grace Co. (1995) 37 Cal.App.4th 1318, 1326.)
Thus, under the common law rule, a cause of action for personal injury generally accrues from the date of the injury. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.) However, our Supreme Court has held that there are circumstances where “there is sound reason for recognizing an exception to the rule that the time commences from the doing of the wrongful act and to provide that the cause of action does not accrue prior to the maturation of perceptible harm, to the injured person’s awareness of it, or of circumstances that indicate he should have been aware of it.” (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 587, 597.) Accordingly, an exception to the common law rule is the Delayed Discovery Rule, which postpones accrual of a cause of action until the plaintiff discovers or has reason to discover the cause of action. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398.) It is the plaintiff’s burden to establish delayed discovery. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d1103; Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 803.)
“In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation.]” (Fox, supra, 35 Cal.4th at pp. 920-921.) However, “a complaint’s allegations may be disregarded when they conflict with judicially noticed discovery responses.” (Bockrath v. Aldrich Chemical Co., supra, 21 Cal.4th at p. 83.) “In determining the applicability of the discovery rule to a minor’s cause of action it is the knowledge or lack thereof of the parents which determines the time at which the cause of action accrued. [Citation.]” (Dujardin v. Ventura County General Hospital, supra, 69 Cal.App.3d at p. 358.) We agree with the superior court that allegations of delayed discovery can extend the deadlines mandated for filing of a claim against public entities. (Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, 1423.)
In this case, whether under the common law rule as explained by Davies v. Krasna, supra, 14 Cal.3d 502, or under the Delayed Discovery Rule, the time period until the mother, or a reasonable person, knew or should have known that there was infliction of appreciable harm to the child is not included in the calculation of the statute of limitations for claims under California Code of Civil section 335.1. (See Grisham v. Philip Morris, U.S.A., Inc. (2007) 40 Cal.4th 623, 644-645 [declining to extend the “appreciable harm rule to the circumstances of this case, when there is an earlier manifesting economic injury and a later manifesting physical injury, because such an extension would be inconsistent with the discovery rule. [¶] … [¶] This rule would violate the essence of the discovery rule that a plaintiff need not file a cause of action before he or she ‘“has reason at least to suspect a factual basis for its elements.” [Citations.]’”].)
“Resolution of the statute of limitations is normally a question of fact.” (Fox, supra, 35 Cal.4th at p. 810.) As our Supreme Court has held, “[t]here are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge. [Citation.] It is a question for the trier of fact.” (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., supra, 1 Cal.3d at p. 597.)
We note that the definition of statute of limitations, as used by the Fox Court, would apply to the timely claim presentment requirement in the Government Code. (Fox, supra, 35 Cal.4th at page 806 [“‘Statute of limitations’ is the collective term applied to acts or parts of acts that prescribe the periods beyond which a plaintiff may not bring a cause of action.”].)
2. Discovery of Appreciable and Actual Harm
Here, according to the superior court, “the allegations of the complaint indicate that the minor’s mother was aware on January 7, 2003 that her daughter suffered a collision with the gate, but that the minor’s mother, as a lay person, did not perceive that this collision caused an actual injury because her examination of her daughter did not reveal any injury.” According to respondent, the facts judicially noticed in this case – that Brooke ran into a hasp of a gate, fell down, grabbed her left eye and started crying – are sufficient to show that there was an infliction of appreciable and actual harm to Brooke on January 7, 2003.
Appellant argues that these facts are insufficient to show appreciable harm, but rather these facts show only nominal injuries. In support, plaintiff cites DeRose v. Carswell (1987) 196 Cal.App.3d 1011, superseded in part by statute, as stated in Curtis T. v. County of Los Angeles, supra, 123 Cal.App.4th at page 1421, that “[t]here are times when a tort initially causes injuries so insubstantial that it is not reasonable to expect the victim to file a lawsuit, even though she would be entitled to at least nominal damages.” (DeRose v. Carswell (1987) 196 Cal.App.3d at p. 1021-1022.)
In reviewing the allegations of the complaint, including the documents that were judicially noticed, we cannot determine that “reasonable minds can draw only one conclusion,” namely, that the daughter suffered appreciable and actual harm on January 8 as opposed to a later date. (Miller v. Lakeside Village Condominium Assn., supra, 1 Cal.App.4th at p. 1624.) Thus, we conclude that there is a triable question of fact on when the mother, or a reasonable person in the mother’s situation, should have discovered that Brooke suffered appreciable harm.
The evidence that supports a finding that the daughter suffered appreciable harm within 24 hours of this incident includes the following. The mother observed the daughter collide with the gate. The daughter cried and screamed inconsolably for at least five minutes and put her hands over her left eye. On the following day, when she patched her right eye, the daughter insisted on being carried into the preschool and when they were in the cafeteria, she sat on her lap the whole time, whereas previously she would usually roam around the tables and go get her own chocolate milk. On the day after this incident, mom was surprised to see the daughter feeling her way into the house to get from the front door to the living room, and thought that was unusual and intended to report it to the doctor at her next appointment scheduled for February 18. Also, on the day after the incident, while seated in the cafeteria of the school with the daughter on her lap, she didn’t recognize “the boy” sitting next to her, who was her own brother, Matt, age six.
The evidence that supports a finding that the daughter’s injury was not appreciable until a later date includes the following. First, the mother checked the daughter’s left eye immediately after the incident with the gate and saw no injury. The daughter had congenital left eye problems that had been treated off and on since shortly after birth. After this incident occurred, when she tried to feel her way through the house and seemed needier, the mother thought that “maybe her eyesight had regressed because we had not been patching enough and not at all over Christmas vacation. She had had a setback once before when she had lost her contact.”
If the daughter had had no previous left eye difficulties, given the events of January 7 and 8, reasonable minds could only draw one conclusion: that the daughter had suffered appreciable and actual harm to the vision in her left eye by January 8. However, given her pre-January 7 history of vision problems with her left eye, the fact that they had not patched her right eye at all over Christmas vacation and they had not been patching it as often thereafter, there is a triable issue of fact as to when this injury became appreciable.
Although the Second Amended Complaint does not allege that appreciable harm to the eye was not discovered until February 18, 2003, it does allege that the injury could not be reasonably discovered until that date. We believe that these allegations may be adequate in alleging that the cause of action did not accrue until February 18 because the injury was not appreciable until that date. Alternatively, we believe that appellant can amend the complaint to make the proper allegations.
C. Whether Plaintiff’s Complaint is Subject to General Demurrer
Our review of the SAC, liberally construed in light of the judicially noticed facts, demonstrate that plaintiff can state a cause of action against CUSD based upon the allegation that the mother could not reasonably discover appreciable harm to Brooke until February 18, 2003. We note that the actual date of discovery will be determined by a trier of fact, which could result in the conclusion that the claim was not timely presented.
III.
Waiver of Timely Claim Presentation Requirement
Plaintiff also asserted on appeal that CUSD has waived the timely claim presentation requirement by failing to provide the notice required by section 911.3. Because we have concluded that the trial court erred in sustaining the demurrer, we decline to reach this issue.
DISPOSITION
The judgment is reversed. Costs to appellant.
WE CONCUR: Dawson, J., Kane, J.