Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County No. S-1500-CV-264873, William D. Palmer, Judge.
The Law Offices of Young Wooldridge, Scott D. Howry, Gregory A. Muir and Andrea Selvidge for Plaintiff and Appellant.
Robinson & Kellar, Michael C. Kellar and Oliver U. Robinson for Defendant and Respondent.
OPINION
Levy, J.
Appellant, Karen Pollard, was seriously injured in an automobile accident that, according to appellant, occurred when an unidentified school bus drifted across the center divider. Appellant alleges she swerved to avoid the bus and collided with a canyon wall. Upon investigation, appellant believed the Kern High School District was the owner of the bus and pursued an action against that school district. Over a year later, appellant learned that the South Fork Union School District (South Fork) was the likely owner of the bus.
This appeal concerns appellant’s unsuccessful attempts to include South Fork as a defendant in her personal injury action. After South Fork denied her government claim on the ground that it was filed more than one year after the accident, appellant sought relief in the trial court arguing that her claim was timely because the cause of action did not accrue until she discovered the identity of South Fork. This motion was denied. Thereafter, appellant discovered evidence indicating that South Fork employees and agents had concealed their identities from appellant. Appellant then filed motions to vacate the earlier ruling and to allow her to amend her complaint to add South Fork as a defendant based on a claim of equitable estoppel. These motions were also denied.
Appellant argues the trial court’s denial of her motion to amend the complaint was based on erroneous legal conclusions. Appellant is correct. The trial court incorrectly determined that (1) South Fork did not have a duty to report its alleged involvement with the accident once it learned of the investigation on the ground that the Vehicle Code reporting requirements are unconstitutional; and (2) South Fork’s silence was not a basis for estoppel. As discussed below, appellant can state a claim for equitable estoppel. Accordingly, the trial court should have granted appellant’s motion for leave to file an amended complaint to allow her to add South Fork as a defendant.
Appellant further contends the trial court erred in finding that the government claim presented to South Fork was untimely and in refusing to vacate that order. The rulings on these orders will be affirmed. Contrary to appellant’s position, the trial court did not abuse its discretion when it refused to vacate the order on the grounds presented by appellant. Moreover, in light of our conclusion that appellant may file a first amended complaint naming South Fork as a defendant on estoppel grounds, we need not consider whether accrual of appellant’s cause of action was delayed until she discovered South Fork’s identity.
BACKGROUND
On September 11, 2007, appellant was driving on a narrow two-lane section of State Route 178 through the Kern Canyon. According to appellant, an oncoming school bus drifted across the center divider and she swerved to the right to avoid a collision. Appellant hit the canyon wall and was seriously injured. The school bus neither stopped nor returned to the accident scene and none of the witnesses could identify the school district that owned the bus.
The next day, appellant’s husband returned to the accident location at the same hour of the morning and saw a Kern High School District bus drive by. He did not observe any other buses traveling through the canyon that day.
Although the Kern High School District had been identified as the potential owner/operator of the bus, appellant and the California Highway Patrol continued to investigate this issue throughout the fall of 2007. Appellant’s husband put an advertisement in the local newspaper seeking witnesses to the accident. Appellant retained an attorney who in turn hired a private investigator to look into the circumstances of the accident and to determine whether any other school buses might have been traveling through the Kern Canyon that day.
Two witnesses were located via the newspaper advertisement but neither witness was able to identify the bus. In its own investigation, the California Highway Patrol determined that none of the local school districts had a bus route that traversed that area at that time of morning. In the traffic collision report, the California Highway Patrol concluded that the school bus had engaged in a hit and run felony. However, law enforcement was unable to proceed with a criminal case because there was insufficient evidence to identify a suspect or suspect vehicle.
Appellant filed a claim for damages with the Kern High School District on February 13, 2008, which was within six months of the date of the accident. The Kern High School District rejected the claim and appellant filed the underlying complaint for personal injury and property damage against the Kern High School District.
In early December 2008, appellant’s attorney sent out public records requests to two school districts operating in Lake Isabella asking for confirmation that their buses were not running routes through the Kern Canyon on September 11, 2007. In response, appellant’s attorney received a telephone call from Robin Shive, the superintendent of South Fork. Shive informed appellant’s attorney that, although South Fork buses did not run regular routes through the Kern Canyon, a South Fork bus was on that road on September 11, 2007. It was being transported by a South Fork employee to Bakersfield for maintenance. Shive also reported that the bus driver was made aware, once he reached Bakersfield, that there had been some sort of accident in the canyon. The following day, appellant’s attorney received a letter from Ryan Bourget of Self Insured Schools of California (SISC), confirming that a South Fork bus had traveled to Bakersfield through the Kern Canyon on September 11, 2007.
Based on this new information, appellant filed a claim for damages with South Fork in January 2009. South Fork denied the claim on the ground that it was not presented within six months of the date of the event or occurrence. South Fork further advised appellant that, if she intended any part of her cover letter, attachments, or correspondence to be an application for leave to present a late claim, that application was denied because it was not presented within the time prescribed in the Government Code.
In February 2009, appellant received discovery responses from Kern High School District. One document produced was the signed statement from Tim Gordon, identified by the Kern High School District as a South Fork employee, dated September 24, 2007, less than two weeks after the accident. In this statement, Gordon identified himself as the driver of a bus coming through the Kern Canyon on “either the 11th or 13th of September.” Gordon saw a black pickup driven by a woman cutting the corner of a curve too close to the inside. After she had passed, Gordon saw a lot of dust come off the bank behind her. Gordon further stated “On September 24th, one of my fellow workers had told me that someone had told him that a lady was complaining that a bus driver ran her off the road in the canyon. On hearing this I notified my supervisor.”
Appellant then moved the court for an order that the government claim filed with South Fork be deemed timely or, in the alternative, that appellant be relieved from the Government Code section 945.4 requirements and be allowed to name South Fork as a defendant (government claim motion). Appellant argued that the delayed discovery of South Fork’s identity delayed the accrual of her cause of action. The trial court denied this motion on April 14, 2009.
Thereafter, appellant took Gordon’s deposition. Gordon testified that just after he passed appellant, he saw her vehicle clip the side of the bank and saw dust go up in the air. He did not see anything else and proceeded down the canyon. Gordon did not consider stopping or turning around. At the time, Gordon had no idea that an accident had occurred. However, shortly after arriving in Bakersfield, Gordon was aware that there had been an accident in the Kern Canyon that involved the same vehicle he saw hit the side of the canyon. Less than two weeks later, on September 24, 2007, Gordon learned that appellant was looking for witnesses to the accident and that it was alleged that a school bus had run the pickup off the road. He then told his supervisor, Shive, about the incident and asked if they needed to contact anybody. Shive responded that she did not think so and asked Gordon to prepare a written statement. Within a few months of the accident, Gordon also reported the incident to Bourget at SISC. Gordon testified that he considered calling the California Highway Patrol and telling them what he knew but Bourget told him not to. Thereafter, the South Fork board called Gordon into a meeting and asked him to explain what happened. Upon hearing Gordon’s description of the incident, the board told Gordon “to just wait, and we’ll have to see what happens.”
On June 10, 2009, appellant filed a motion to vacate the April 14, 2009, ruling on the government claim motion on the ground of fraudulent concealment pursuant to Code of Civil Procedure section 473, subdivision (b). Appellant alleged that, had she “known of the information wrongfully concealed and that just was discovered in the deposition of Timothy Gordon on May 9, 2009, the earlier Motion would likely have been decided differently or not decided at all, and the Motion for Leave to File an Amended Complaint on the grounds of estoppel to claim the benefit of the Government Claim statutes would have been filed and heard at that time.”
At the same time, appellant filed a motion for leave to file a first amended complaint seeking to add both South Fork and Gordon as defendants. Appellant argued that the new facts recently discovered at the Gordon deposition indicated that South Fork had fraudulently concealed its and Gordon’s identities and supported an amendment to the complaint alleging that South Fork and Gordon were equitably estopped from using the government claim statutes as a defense.
The trial court denied both motions by order dated July 24, 2009. The court first noted that South Fork had objected to the procedural propriety of these two motions. However, the court believed it was appropriate to consider them on the merits. The court then acknowledged that there would be no prejudice because of surprise if it were to allow the amendment to the complaint because South Fork, Gordon and SISC knew of the potential claim. The court also recognized that, under certain circumstances, a public entity may be estopped from asserting that a party has failed to comply with the claims statute. Nevertheless, the court held that appellant’s estoppel claim must fail. The court concluded that appellant could not establish a duty owed to her by South Fork and Gordon to report that Gordon was potentially involved in the accident under Vehicle Code section 20001, because it would have required Gordon to incriminate himself in violation of the federal and state Constitutions. The court further determined that the fraud claim could not serve as a foundation for estoppel against South Fork because it was based on “mere silence” rather than a “false assertion.”
On August 13, 2009, appellant filed a notice of appeal from all three orders.
DISCUSSION
1. Appellant should be permitted to file a first amended complaint alleging that she is excused from compliance with the government claims statutes as to Gordon and South Fork based on equitable estoppel.
a. Standard of review.
An application to amend a complaint is addressed to the trial court’s discretion. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) Accordingly, the trial court’s ruling is reviewed on appeal for an abuse of discretion. (Ibid.) “‘Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.’” (Brown v. Williams (2000) 78 Cal.App.4th 182, 186.) However, an abuse of discretion occurs when the trial court misinterprets the law. (Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294, 1301.) Whether such a misinterpretation has occurred is subject to the appellate court’s independent review. (Ibid.)
b. The Government Claims Act.
Under the Government Claims Act, a plaintiff may not maintain an action for damages against a public entity unless a written claim has first been presented to the public entity and rejected. (Gov. Code, §§ 905, 945.4; Christopher P. v. Mojave Unified School Dist. (1993) 19 Cal.App.4th 165, 168.) Claims for personal injury and property damage must be presented within six months of accrual of the cause of action. (Gov. Code, § 911.2.) After this time limit has expired, a plaintiff may apply to the public entity for leave to present a late claim. Such application must be presented within a reasonable time, not to exceed one year after accrual of the cause of action. (Gov. Code, § 911.4.) If this application is denied, a plaintiff may, within six months, petition the court for an order relieving him or her from the claims presentation procedures. (Gov. Code, § 946.6) Thus, a plaintiff’s failure either to timely present a claim for money or damages to a public entity or to obtain relief from the claims filing requirement, bars that plaintiff from filing a lawsuit against the public entity.
“The purpose of the claims statutes is not to prevent surprise, but ‘to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.’” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738.) “The claims statutes also ‘enable the public entity to engage in fiscal planning for potential liabilities and to avoid similar liabilities in the future.’” (Ibid.)
c. Estoppel.
A public entity may be estopped from asserting noncompliance with the claims statutes. (Christopher P. v. Mojave Unified School Dist., supra, 19 Cal.App.4th at p. 165; Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1496.) Estoppel is available in all circumstances where the complaint alleges facts that, if true, would establish that the government had acted in an unconscionable manner. (Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353, 359.) For an estoppel to lie “[t]he estopped party must either misrepresent or conceal material facts with knowledge of the true facts (or gross negligence as to them) and with the intent that another who is ignorant of the facts will rely on the misrepresentation or concealment; an intent to deceive is not necessary.” (Jordan v. City of Sacramento, supra, 148 Cal.App.4th at p. 1496.)
Affirmative action on the part of the public entity is not necessarily required to give rise to an estoppel. (Dettamanti v. Lompoc Union School Dist. (1956) 143 Cal.App.2d 715, 721.) Rather, an estoppel may be based on the failure of the party sought to be estopped to speak when he or she is under a duty to speak. (Ibid.) “The conduct of the party sought to be estopped must be examined in order to determine whether there was a breach of duty toward the party who claims to have relied upon the conduct. Silence, when there is a duty to speak, as well as affirmative assertions, may result in inexcusable deception.” (Ibid.)
As noted above, appellant filed a motion for leave to file a first amended complaint that included South Fork and Gordon as defendants. In her proposed first amended complaint, appellant alleged that she was excused from compliance with the government claims statute on the ground that South Fork and Gordon had a duty to stop and/or provide their identity to appellant and the legal authorities upon learning they were being sought in a hit and run accident and that, despite this knowledge, South Fork and Gordon intentionally concealed their identity from appellant. Based on these newly discovered facts, appellant argued that she should be allowed to amend her complaint and allege that Gordon and South Fork are estopped to claim the benefit of the government claims statutes. The trial court, however, disagreed based on two legal conclusions. The trial court determined that South Fork and Gordon had no duty to report Gordon’s potential involvement in the accident because the Vehicle Code reporting requirements were unconstitutional. The court further concluded that silence alone cannot create an estoppel.
d. The Vehicle Code requirement that drivers self-report when their vehicle has been involved in an accident is not unconstitutional.
The Vehicle Code requires “[t]he driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself” to immediately stop the vehicle at the accident scene and to furnish identifying information to police officers and any occupants of struck vehicles. (Veh. Code, §§ 20001, subd. (a) & 20003, subd. (a).) These statutes are designed to prevent the driver of a car involved in an accident from leaving the scene without furnishing information as to his or her identity. (People v. Kroncke (1999) 70 Cal.App.4th 1535, 1545.)
Such disclosure requirements have been held to be essentially regulatory, their purpose being “to promote the satisfaction of civil liabilities arising from automobile accidents.” (California v. Byers (1971) 402 U.S. 424, 430.) Unlike registration schemes aimed at identifying criminal behavior, these statutes do not implicate the right against self-incrimination. (Ibid.) Driving an automobile is a lawful activity and it is not a criminal offense under California law to be a driver involved in an accident. (Id. at p. 431.) Disclosures with respect to automobile accidents simply do not entail a substantial risk of self-incrimination. The statutory purpose is noncriminal and self-reporting is indispensable to its fulfillment. (Ibid.) Accordingly, “the Fifth Amendment privilege against self-incrimination does not relieve a California driver of his duty to comply with the reporting requirements of [Vehicle Code] sections 20001 and 20003, including his duty to identify himself as the driver of a vehicle involved in the accident.” (People v. Kroncke, supra, 70 Cal.App.4th at p. 1557.) Thus, the trial court’s conclusion that appellant could not establish a duty owed to her by South Fork and Gordon to report that Gordon was potentially involved in the accident under Vehicle Code section 20001 on constitutional grounds is erroneous as a matter of law.
e. Appellant has alleged facts sufficient to support her estoppel claim.
In her proposed first amended complaint, appellant alleges that she is excused from complying with the Government Claims Act based on estoppel. Appellant alleges that the bus driven by Gordon ran her off the road and thus was involved in the accident. She further alleges that Gordon and South Fork were aware that the bus driven by Gordon was involved in an accident in which appellant was injured and that their identity was being sought by appellant and the authorities. Appellant contends Gordon and South Fork had a duty to report their identity and they failed to do so. Rather, Gordon and South Fork intentionally concealed their identity from appellant. Appellant further alleges that, despite diligent research, she was unable to identify these potential defendants until more than one year after the accident occurred.
Being involved in an accident does not necessarily require a collision between the driver’s vehicle and another. (People v. Bammes (1968) 265 Cal.App.2d 626, 631.) For example, in People v. Bammes, supra, when the defendant suddenly pulled into an intersection in front of an oncoming vehicle and thereby caused a collision between that oncoming vehicle and a truck, the defendant was “involved” in the accident despite not being involved in the collision. Thus, the allegation that Gordon ran appellant off the road, if true, is sufficient to support the claim that he was involved in the accident within the meaning of Vehicle Code section 20001.
Before the duty to comply with the Vehicle Code reporting requirements arises, the person involved in the accident must be aware of his or her involvement. (People v. Bammes, supra, 265 Cal.App.2d at pp. 633-634.) Appellant has satisfied this element as well. She alleges that Gordon and South Fork were aware of Gordon’s involvement, an allegation that is supported by Gordon’s deposition testimony and statement. Gordon testified that he saw appellant’s truck hit the canyon wall. When he arrived in Bakersfield, Gordon learned that appellant’s truck had been involved in an injury accident. Less than two weeks later, Gordon became aware of the allegation that a school bus was a cause of the accident. Gordon then reported his alleged involvement to Shive, his supervisor, and Bourget, an employee of South Fork’s insurance carrier. Accordingly, under the circumstances alleged in the complaint, Gordon and South Fork had a duty to report Gordon’s involvement in the accident to either appellant or law enforcement.
Appellant alleges that, despite this duty, South Fork intentionally remained silent. She bases this allegation on Gordon’s testimony that both Shive and Bourget told him not to report what he knew about the accident. An estoppel claim can be based on such a failure to speak. (Dettamanti v. Lompoc Union School Dist. supra, 143 Cal.App.2d at p. 721.) Silence, when there is a duty to speak, may result in inexcusable deception. (Ibid.) Thus, appellant’s proposed first amended complaint adequately states a claim for estoppel.
In ruling on appellant’s motion for leave to file a first amended complaint, the trial court misinterpreted the law in two respects. Contrary to the court’s conclusion, appellant can establish that South Fork and Gordon owed her a duty to report that Gordon was potentially involved in the accident under Vehicle Code section 20001. Further, “mere silence” can serve as a foundation for estoppel against South Fork. Therefore, the trial court abused its discretion when it denied appellant’s motion for leave to file a first amended complaint. (Upland Police Officers Assn. v. City of Upland, supra, 111 Cal.App.4th at p. 1301.)
2. The trial court did not abuse its discretion in denying appellant’s motion to vacate the order on the government claim motion.
As discussed above, appellant’s first motion, the government claim motion, sought an order that the government claim filed with South Fork be deemed timely on the ground that the delayed discovery of South Fork’s identity delayed the accrual of her cause of action. The trial court denied this motion on April 14, 2009.
On June 10, 2009, appellant filed a motion to vacate this April 14, 2009, ruling on the ground of fraudulent concealment pursuant to Code of Civil Procedure section 473, subdivision (b). According to appellant, the rationale for bringing this motion was to avoid the existence of any potentially prior inconsistent orders that had been procured by South Fork’s fraud. The basis for appellant’s motion was that “absent the fraudulent concealment undertaken by Mr. Gordon and South Fork, the Government Claim Motion, and the trial court’s ruling thereon, would never have existed.” Instead, appellant would have simply filed the motion for leave to file a first amended complaint alleging an estoppel theory against Gordon and South Fork.
The trial court simultaneously denied this motion to vacate and the motion for leave to file a first amended complaint. No specific reasons were given for the denial of the motion to vacate. Appellant postulates that the motion to vacate was denied because the trial court found that Gordon’s and South Park’s actions were not fraudulent. Appellant argues that, because the trial court erred in concluding appellant had not stated a claim for estoppel based on fraud, it also erred in denying the motion to vacate.
However, the alleged fraudulent concealment has no relevance to the merits of appellant’s government claim motion. In her government claim motion, appellant argued that her cause of action did not accrue until she identified South Fork and Gordon as potential defendants. Under this theory, her claim would be timely. Appellant’s claim regarding estoppel based on fraud is a completely separate issue. With estoppel, the claim is not deemed timely. Rather, the public entity is prevented from asserting the government claim time limits as a defense. (Jordan v. City of Sacramento, supra, 148 Cal.App.4th at p. 1496.) Accordingly, the denial of appellant’s government claim motion would not be inconsistent with the grant of her motion for leave to file an amended complaint alleging excuse from the government claim requirements based on estoppel.
The trial court’s order denying appellant’s motion to vacate the prior ruling is reviewed on appeal for an abuse of discretion. (Brown v. Williams, supra, 78 Cal.App.4th at p. 186.) Under the circumstances here, it cannot be said that the trial court exceeded the bounds of reason in denying this motion. (Ibid.) The alleged fraud asserted as the reason for vacating the government claims ruling had no relevance to the merits of that first motion. Moreover, appellant’s concern regarding inconsistent rulings was unfounded. Accordingly, the trial court did not abuse its discretion in refusing to vacate the prior order.
3. Appellant’s claim that her cause of action did not accrue until she identified South Fork and Gordon need not be decided.
As noted above, in her government claims motion, appellant requested that the original claim submitted to South Fork be deemed timely because the action against South Fork did not accrue until December 18, 2008, when appellant discovered South Fork’s identity as the potential owner of the school bus involved in the September 11, 2007, accident. The trial court orally denied this motion on April 14, 2009.
Appellant filed her notice of appeal from this order on August 13, 2009. South Fork argues that, because the notice of appeal was filed more than 60 days after April 14, 2009, the appeal from this order is untimely. However, there is no indication that appellant was served with a file stamped copy of the order. Therefore, appellant had 180 days from the entry of the minute order to file the appeal. (Cal. Rules of Court, rule 8.104, subd. (a)(3).)
A limitations period usually commences when a cause of action accrues, i.e., on the date of the injury. (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931.) “The general rule for defining the accrual of a cause of action sets the date as the time ‘when, under the substantive law, the wrongful act is done, ’ or the wrongful result occurs, and the consequent ‘liability arises.’ [Citation.] In other words, it sets the date as the time when the cause of action is complete with all of its elements [citations].” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) The accrual date for presenting a government claim is identical to the accrual date that would apply in an ordinary action when no public entity is involved. (K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1233.)
However, there is a well established exception to the general rule for defining the accrual of a cause of action known as the “discovery rule.” This rule postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397.)
Here, appellant knew of the injury on September 11, 2007, the date of the accident. On that date, she was aware of the factual basis for her claim. Thus, the usual “discovery rule” does not apply to extend the claims filing period. Nevertheless, appellant contends that, although she was aware of her injury and its negligent cause on September 11, 2007, her cause of action did not accrue until she discovered the identity of South Fork and Gordon in December 2008.
While ignorance of the existence of an injury or cause of action may delay the running of the limitations period until the date of discovery, the general rule in California has been that ignorance of the identity of the defendant will not. (Bernson v. Browning-Ferris Industries, supra, 7 Cal.4th at p. 932.) The identity of the defendant is not an element of any cause of action. (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 399.) Accordingly, the failure to discover, or have reason to discover, the identity of the defendant does not postpone the accrual of a cause of action, whereas a like failure concerning the cause of action itself does. (Ibid.) The rationale for this distinction between “ignorance” of the defendant and “ignorance” of the cause of action itself is premised on “the commonsense assumption that once the plaintiff is aware of the injury, the applicable limitations period (often effectively extended by the filing of a Doe complaint) normally affords sufficient opportunity to discover the identity of all the wrongdoers.” (Bernson v. Browning-Ferris Industries, supra, 7 Cal.4th at p. 932.)
Thus, under current California law, the accrual of appellant’s cause of action was not delayed until she discovered the identity of South Fork and Gordon. Appellant points out that, due to the claim filing prerequisite, a plaintiff can never effectively use a fictitiously named defendant to bring in a public entity defendant. (Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1036.) Therefore, appellant argues, ignorance of a public entity defendant should postpone the accrual of a cause of action.
While a plaintiff in appellant’s position is faced with a short period in which to discover the identity of the public entity defendant, adopting appellant’s position would be a radical departure from established California law. However, at this time we need not decide whether appellant’s position has any merit. Appellant’s proposed first amended complaint adequately states an equitable estoppel claim against South Fork and Gordon. Therefore appellant will be able to proceed with her complaint against those parties.
DISPOSITION
The order denying appellant leave to file a first amended complaint is reversed and on remand the trial court is directed to grant appellant’s motion to file a first amended complaint. The remaining orders appealed from are affirmed. Costs on appeal are awarded to appellant.
WE CONCUR: Ardaiz, P.J., Wiseman, J.