Return to : Ackerman v. Poway Unified School District
D054529 : Ackerman v. Poway Unified School District

Filed 11/5/09 Ackerman v. Poway Unif. School Dist. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA
TERRI ACKERMAN,
Plaintiff and Appellant,

v.

POWAY UNIFIED SCHOOL DISTRICT,
Defendant and Respondent.

D054529

(Super. Ct. No. 37-2007-00078188-
CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Luis R.
Vargas, Judge. Affirmed.

This appeal from a judgment of dismissal of a personal injury action involves the
application of the equitable tolling doctrine in the context of governmental tort claims
against a public entity. Plaintiff and appellant Terri Ackerman (Plaintiff) was injured in
2005 when she slipped and fell at the premises of the school where she taught, which was
owned and operated by defendant and respondent Poway Unified School District (the
District). From 2005 to the present, she has obtained workers' compensation benefits and
treatment for her injuries, including three surgeries since the accident. In 2006, she filed
a timely governmental tort claim against the District. (Gov. Code,*fn1 § 900 et seq.
(Government Claims Act, hereinafter, the Act).) In 2007, she sued the general contractor
which had built the school, on theories of premises liability and negligence.*fn2
In 2008, she amended her complaint to add the District as a defendant, alleging
that she had recently learned of a change order that the District had made during
construction, creating a slippery concrete surface, and contending that this now supported
negligence claims against it.

The District responded by demurring to the amended complaint, alleging that her
action against it was barred by the applicable statute of limitations under the Act, and she
had not pled sufficient facts to excuse the delay. (§ 945.6, subd. (a).) After allowing
leave to amend the first time around, the trial court sustained the District's second
demurrer on the same grounds without leave to amend.

Plaintiff appeals, arguing that the doctrine of equitable tolling should apply to
excuse her failure to file her action against the District within six months of the accrual of
her cause of action, as measured from the date the District denied her tort claim. (Elkins
v. Derby (1974) 12 Cal.3d 410, 414 (Elkins).) She also pled in her second amended
complaint (SAC) that a longer limitations period should apply, based on the doctrine
allowing amendments that relate back to the originally filed pleading. We have
considered Plaintiff's theories and conclude that Plaintiff cannot bring herself within the
scope of those doctrines, nor has she otherwise shown that her amended complaint was
timely filed. For the reasons to be explained, we affirm the order and judgment of
dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

A. Claim, Complaint, First Demurrer

For purposes of analyzing the demurrer, the courts will accept as true the facts
alleged in the complaint. (John R. v. Oakland Unified School District (1989) 48 Cal.3d
438, 441, fn. 1 (John R.).) On October 21, 2005, in the early morning, Plaintiff was on
school premises when she slipped and fell on a painted concrete surface, which was wet
from the morning dew. She alleged that others had complained about the floor's
condition, which was not made according to plan, but nothing was done.

On April 20, 2006, Plaintiff, through counsel, filed a claim with the District, and
refiled it when she was told that the correct form was now available. In her claim, she
alleged that the District was negligent because it had installed painted concrete, as
opposed to stained and porous concrete. In the District's letter transmitting the correct
form, its official stated that "the District is covering Ms. Ackerman's injury under our
workers' compensation plan." (Lab. Code, § 3600.)

On May 18, 2006, the City sent Plaintiff a letter stating her April 20 claim had
been rejected pursuant to the Government Code. This letter warned Plaintiff about the
six-month deadline that applied, "from the date this notice was personally delivered or
deposited in the mail to file a court action on this claim. See Government Code, Section
945.6."

On October 19, 2007, Plaintiff filed her original complaint against Barnhart,
seeking damages for personal injury based on premises liability and negligence. She also
named as defendants, Does 1-25. This date was more than six months after Plaintiff's
claim was denied (May 18, 2006).

On July 9, 2008, Plaintiff filed the first amended complaint (FAC) against
Barnhart, NTD Architecture, and the District, again naming Doe defendants 1-25. As
against the architects, she alleged that they were negligent in issuing supplemental
instructions changing the concrete surface.*fn3 As against the District, she alleged that she
had adequately complied with governmental claims statutes, and that the District was not
entitled to assert the exclusive remedy doctrine regarding workers' compensation,
because it had not secured for her all the compensation to which she was entitled. (Lab.
Code, §§ 3706, 3602, subd. (c).)*fn4 She alleged that the District had issued a change order
regarding the concrete surface, which created unreasonably dangerous conditions.

The District brought a general demurrer to the FAC, contending it failed to state
its causes of action because the claims were time-barred, and the exclusive remedy
doctrine barred the tort action. Lack of sufficient compliance with governmental tort
claims requirements was also alleged. The trial court granted leave to amend, and
Plaintiff filed her SAC.

B. Second Demurrer; Ruling

In her SAC, Plaintiff apparently sought to incorporate her previous negligence
cause of action against the District, and she also pled in more detail her claim of breach
of duty to an employee, in failing to provide adequate workers' compensation benefits to
her. (Lab. Code, §§ 3602, subd. (c), 3706.)*fn5 She alleged that this set of circumstances
exempted the case from the exclusive remedy doctrine, and that the current pleading was
timely filed, apparently because it rested upon the same facts as the original
governmental claim, which referred to the same accident and the same injuries. Because
the accident occurred early in the morning, she alleged it took place outside the scope of
her employment. She alleged that the District was negligent when it issued the change
order, of which she was ignorant before late June 2008. She contended that the District
had maintained a public nuisance at the school premises, by allowing the slippery
concrete condition to continue. She also named as defendants, Does 1 to 25.

On November 7, 2008, the District brought a general demurrer to the SAC,
contending that Plaintiff had still failed to allege exemption from the requirements of the
Act, regarding timely filing of the action, or from the exclusive workers' compensation
remedy. In support, the District sought judicial notice of the claims and denial of claim,
and the original complaint.

Plaintiff filed opposition, asserting that the doctrine of equitable tolling should
apply because Plaintiff had been pursuing her workers' compensation benefits and claims
since the accident. In mid-2008, she filed her forms for adjudication of her workers'
compensation claim. She argued that because she had filed her claim on the accident in a
timely manner, the District had had the opportunity to investigate the accident
immediately, and thus it was not prejudiced by her delay in filing. She argued she was
excused from earlier filing of her FAC and SAC, because she had been diligently
pursuing her workers' compensation remedy, and was attempting to limit the damages she
would claim against the District, until she learned that it was the District that participated
in the change order. This was a tactical decision. Reply papers were filed.

The trial court issued a telephonic ruling, which was confirmed after oral
argument. The District's demurrers were sustained without leave to amend The order
provides in pertinent part that although Plaintiff was required to file suit, if any, within
six months of the rejection of her claim, she had failed to do so. She had therefore not
pled adequate facts to support compliance with governmental claims presentation
requirements, including the six-month filing requirement of section 945.6. Judicial notice
was granted of various documents from the claims process, as presented by the District.
(Although Plaintiff objected to one factual assertion in the documents, that objection was
overruled and is not at issue here.)

In sustaining the demurrer without leave to amend, the trial court further found
that even if the relation back doctrine allowed the amendment naming the District as a
defendant to relate back to the time of filing of the original complaint, that complaint was
still filed more than six months after the rejection of the tort claim. The entire SAC was
barred by this defect, and the additional issues were moot regarding the workers'
compensation exclusivity doctrine.

Plaintiff appealed the order on the demurrer. Later, judgment was entered, and
this appeal may be deemed properly taken from the judgment.

DISCUSSION

I

APPLICABLE STANDARDS AND ISSUES PRESENTED

For purposes of analyzing the ruling on demurrer, we take as true the allegations
in the complaint. (John R., supra, 48 Cal.3d 438, 441, fn. 1; Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) We give the complaint a reasonable interpretation, reading it as a
whole, its parts in their context, to determine whether sufficient facts are stated to
constitute a cause of action. (Ibid.) For purposes of reviewing the trial court's
construction of a statutory scheme, we resolve pure questions of law on a de novo basis.
(People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)

The issue of whether a plaintiff has pleaded sufficient facts to demonstrate or
excuse compliance with governmental tort claims presentation requirements may
appropriately be addressed in a general demurrer to a complaint. (See State v. Superior
Court (Bodde) (2004) 32 Cal.4th 1234, 1239, 1244-1245 (Bodde).) Here, that issue also
encompasses whether Plaintiff provided any showing of appropriate amendments that
could be made to the pleading. "If the court sustained the demurrer without leave to
amend, as here, we must decide whether there is a reasonable possibility the plaintiff
could cure the defect with an amendment. [Citation.] If we find that an amendment
could cure the defect, we conclude that the trial court abused its discretion and we
reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the
burden of proving that an amendment would cure the defect." (Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1081.)

In Plaintiff's opposition to the demurrer to the SAC, for the first time, she relied on
the doctrine of equitable tolling to defend the timeliness of the SAC or to seek leave to
amend. " 'Equitable tolling is a fact intensive issue and it is determined based upon
evidence. Accordingly, we are compelled to affirm the trial court's rejection of the theory
if there is substantial evidence to support its determination.' [Citation.]" (Marcario v.
County of Orange (2007) 155 Cal.App.4th 397, 408.) Where, as here, an appeal is
brought after the pleading stage in the trial court, the only "facts" are those contained in
the pleadings and the remainder of the record, including judicial notice materials. (Ibid.)
This court can appropriately analyze the issues of law regarding whether those pleaded
facts "were sufficient to support the trial court's rejection of equitable tolling in this case."
(Ibid.) We first set out the applicable limitations rules and then discuss the effect of the
equitable tolling doctrine.

II

STATUTES OF LIMITATION UNDER THE ACT AND
PRINCIPLES OF EQUITABLE TOLLING


A. Introduction

In Martell v. Antelope Valley Hospital Medical Center (1998) 67 Cal.App.4th 978,
981 (Martell), the court explained that, " 'Suits against a public entity are governed by the
specific statute of limitations provided in the Government Code, rather than the statute of
limitations which applies to private defendants. [Citation.]' " Thus, the Act consists "of a
comprehensive format specifying the parameters of governmental liability,
including . . . a detailed procedure for the advance filing of a claim as a prerequisite to
filing suit" and deadlines "as to both the filing of claims and the commencement of
litigation . . . ." (Schmidt v. Southern Cal. Rapid Transit Dist. (1993) 14 Cal.App.4th 23,
28, fn. omitted (Schmidt).) These rules strictly control the basis under which public
entities may be liable for damages. (Id. at p. 29.)

Here, the relevant limitations periods are provided by section 945.6, which sets
forth alternative six-month and two-year limitations periods for the filing of a court
action, as will be discussed. We are not concerned here with any contention that the
April 20, 2006 governmental claim was itself untimely, as to the October 21, 2005
accident. (§ 911.2.) Rather, it is the timeliness of the separate dates of filing of the
original and amended pleadings which are in dispute here.

The doctrine of equitable tolling has been developed to modify such limitations
rules for the timely filing of actions, where appropriate. "Broadly speaking, the
[equitable tolling] doctrine applies ' " '[w]hen an injured person has several legal
remedies and, reasonably and in good faith, pursues one.' " ' [Citation.] Thus, it may
apply where one action stands to lessen the harm that is the subject of a potential second
action; where administrative remedies must be exhausted before a second action can
proceed; or where a first action, embarked upon in good faith, is found to be defective for
some reason. [Citation.]" (McDonald v. Antelope Valley Community College Dist.
(2008) 45 Cal.4th 88, 100 (McDonald).)

In Addison v. State of California (1978) 21 Cal.3d 313, 320-321, the Supreme
Court outlined the policies behind the equitable tolling doctrine, which include not only
the avoidance of forfeitures (to allow a good faith litigant to have her day in court), but
also an important balancing process: "As with other general equitable principles,
application of the equitable tolling doctrine requires a balancing of the injustice to the
plaintiff occasioned by the bar of his claim against the effect upon the important public
interest or policy expressed by the Tort Claims Act limitations statute. [Citation.]" (Id.
at p. 321.) The statutory policies of the Act were intended to promote the earliest
possible opportunity to investigate and settle just claims, and to correct any unsafe
conditions or practices. (Martell, supra, 67 Cal.App.4th at p. 981.) These unique
limitations periods in the Act serve to promote uniformity and avoid undue delay in
bringing lawsuits against public entities. (Id. at p. 982.)

To argue that these facts support an application of equitable tolling of the
limitations rules under the Act, Plaintiff mainly contends that her pursuit of workers'
compensation benefits qualifies as an alternative legal remedy, which could have served
to reduce her ultimate request for damages against the District, and therefore the accrual
of her causes of action against the District should have been suspended while she was
undergoing treatment in the workers' compensation system.

Before we can address Plaintiff's specific contentions in accordance with the rules
stated above, we first take note that she is apparently combining several theories against
the District in her SAC: Its alleged negligence during the planning and construction
process, and an assertion that the District was not entitled to assert the exclusive remedy
doctrine regarding workers' compensation, because it had not secured for her all the
compensation to which she was entitled. (Lab. Code, §§ 3706, 3602, subd. (c).) Her
"relation back" allegations seem to depend upon the date of her original filing of her
claim, not the date of the separate filing of her lawsuit against Barnhart. Essentially, she
is claiming delayed discovery of the District's change order in June 2008.

Because Plaintiff makes such wide-ranging allegations, we find it necessary to
address both of the statutory limitations periods in section 945.6. (See Martell, supra, 67
Cal.App.4th 978, 981, citing Edgington v. County of San Diego (1981) 118 Cal.App.3d
39, 46 "['plain meaning rule' applies to section 945.6 barring court from ' "go[ing] beyond
[the statute] to find another meaning." '].") Our task is to ascertain whether the SAC is
barred by the limitations periods applicable to any legally cognizable theory generated by
these pleaded facts.

B. Six-Month Period: Section 945.6, Subdivision (a)(1)

Since the record shows that the District provided Plaintiff, the claimant, with a
written notice of rejection of the claim, Plaintiff was required to bring an action against
the District within six months after "the date such notice is personally delivered or
deposited in the mail." (§ 945.6, subd. (a)(1).) This six-month deadline "is mandatory
and must be strictly complied with." (Julian v. City of San Diego (1986) 183 Cal.App.3d
169, 176; see Schmidt, supra, 14 Cal.App.4th at p. 29.)

Plaintiff's lawsuit against Barnhart, a private entity, was filed about 17 months
after the District denied her claim, and would have been untimely if then brought against
the District, under that six-month limitations period of section 945.6, subdivision (a)(1).
(She did not then sue the District.) In any case, Plaintiff has no basis to argue that any
cause of action against the District for negligence did not accrue until the discovery of the
District's change order in mid-2008, since judicial notice of her original claim in April
2006 shows she alleged the same type of negligence in the concrete design.

C. Two-Year Period; Section 945.6, Subdivision (a)(2) and Relation Back Doctrine

In an effort to escape the six-month limitation period beginning upon the denial of
the claim, Plaintiff appears to be relying on section 945.6, subdivision (a)(2) as providing
for an alternative limitations period that might apply to this action. That subdivision
states that an action must be filed against the governmental entity: "(2) If written notice
is not given in accordance with Section 913, within two years from the accrual of the
cause of action." Plaintiff's original negligence and premises liability claims against
Barnhart were governed by the appropriate limitations rules for private defendants (filed
within two years of the date of the accident). But with respect to the District, the Act
creates separate limitations periods, because of public policy concerns about the certainty
and predictability of public entities' exposure to liability. (Martell, supra, 67 Cal.App.4th
at pp. 981-985.)

We have already said that Plaintiff's original complaint (against Barnhart, with no
mention of the District) missed the six-month deadline theoretically applicable to the
District under section 945.6, subdivision (a)(1). Even so, if Plaintiff is arguing that her
SAC relates back to that original action's filing date (October 2007, within two years of
the accident), it would have to fit within the relation back doctrine as set out in Norgart v.
Upjohn Co. (1999) 21 Cal.4th 383, 408-409 [requiring "that the amended complaint must
(1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the
same instrumentality [that caused the same accident], as the original one."].) However,
the original complaint against Barnhart does not allege anything against the District, so it
fails that test.

Moreover, Plaintiff apparently did not utilize the Doe amendment procedure, since
the same Does (nos. 1-25) are listed in the captions of the original and both of the
amended complaints, and there are no Doe amendments in the record. Thus, if Plaintiff is
arguing that her action against the District was timely because her FAC and SAC should
relate back to the original complaint's filing date, that argument fails because the original
complaint itself did not allege anything against the District, and compliance with the Act
was required. (See Chase v. State of California (1977) 67 Cal.App.3d 808, 812-813.)

D. Equitable Tolling Doctrine

Plaintiff's major argument is that these facts should justify a very broad reading of
the elements of equitable tolling, to afford her a day in court. She continues to argue that
her informal participation in the workers' compensation system for treatment of her
injuries should indirectly support a finding of equitable tolling, and her formal efforts to
adjudicate her claim in the workers' compensation forum did not begin until mid-2008,
but also support her argument that some tolling of the limitations periods occurred.
Plaintiff contends that she has satisfied the test for the applicability of the equitable
tolling doctrine, by showing all its three elements: " 'timely notice, and lack of prejudice,
to the defendant, and reasonable and good faith conduct on the part of the plaintiff.' "
(McDonald, supra, 45 Cal.4th 88, 102.)

Specifically, Plaintiff argues that because the District was able to investigate the
accident at the time, based upon the filing and denial of her claim, it would not be
prejudiced by allowing her action in court to proceed. She thus seems to be arguing that
her SAC should relate back to the denial date of her original claim, May 2006. Only the
six-month limitations provision in section 945.6, subdivision (a)(1) refers to the denial
date of her claim, so she seems to be invoking that section. To evaluate her overall
arguments, we look to the policies promoted by the equitable tolling doctrine.

Usually, "[u]nder equitable tolling, the statute of limitations in one forum is tolled
as a claim is being pursued in another forum. [Citations.]" (Martell, supra, 67
Cal.App.4th 978, 985.) In McDonald, the Supreme Court relied on Collier v. City of
Pasadena (1983) 142 Cal.App.3d 917, 923, for its explanation of the policies allowing
equitable tolling, when two separate remedies are available to the plaintiff: " ' "The
timely notice requirement essentially means that the first claim must have been filed
within the statutory period. Furthermore[,] the filing of the first claim must alert the
defendant in the second claim of the need to begin investigating the facts which form the
basis for the second claim. Generally this means that the defendant in the first claim is
the same one being sued in the second." [Citation.] "The second prerequisite essentially
translates to a requirement that the facts of the two claims be identical or at least so
similar that the defendant's investigation of the first claim will put him in a position to
fairly defend the second." [Citation.]' " (McDonald, supra, 45 Cal.4th 88, 102, fn. 2.)

To give meaning to these various terms (claim, action, remedy, or forum) we look
to Elkins, supra, 12 Cal.3d 410. Elkins stands for the proposition that when a plaintiff
has a choice between bringing a civil action and a workers' compensation claim, the
statute of limitations applicable to the civil action may properly be tolled for the period
during which plaintiff pursues the compensation remedy. In that case, that plaintiff was
injured while working on defendants' premises, but was required to file a claim for
benefits with the Workmen's Compensation Appeals Board (WCAB) because questions
arose about whether that plaintiff was an "employee" at the time of his injury. After the
WCAB adjudicated the matter, plaintiff filed his civil action seeking recovery for the
same injuries that led to the compensation claim. Although the superior court originally
ruled that the civil action was barred by the applicable statute of limitations, the Supreme
Court allowed it to proceed, holding that the equitable tolling doctrine applied while the
WCAB adjudication was going on. (Id. at pp. 412-420.) The court said, "[A]n awkward
duplication of procedures is not necessary to serve the fundamental purpose of the
limitations statute, which is to insure timely notice to an adverse party so that he can
assemble a defense when the facts are still fresh. The filing of a compensation claim
accomplishes this purpose and the tolling of the statute does not frustrate it." (Id. at p.
412.)

In the case before us, plaintiff was receiving workers' compensation benefits
without the need of bringing a formal claim before the WCAB. Her case is
distinguishable from Elkins, supra, 12 Cal.3d 410, because an employee's receipt of
benefits is different from the filing and adjudication of a workers' compensation claim
before an administrative agency. She alleges that it was not until mid-2008 that she filed
such an administrative action, and therefore it could have no meaningful tolling effect
upon the Act's limitations periods.

Even if we assume that the District gained knowledge of how Plaintiff's accident
occurred as early as her April 2006 claim, which alleged some District negligence, we
cannot assume that the District was then placed on notice that she would be suing it for
negligence in 2008, on the late developing theory that its change order during
construction had caused her harm through negligence, and that she would allege that such
an action would fall outside of the workers' compensation system. Moreover, that
pleaded assertion of late discovery of negligence is contradicted by the terms of the
original claim. It is hard to see how the first claim "alert[d] the defendant in the second
claim of the need to begin investigating the facts which form the basis for the second
claim" (McDonald, supra, 45 Cal.4th 88, 102, fn. 2), when as far as anyone knew, the
District's denial of her claim, and the inaction by Plaintiff, presumably left the District
under the belief that her claim was finally resolved, except as the workers' compensation
system otherwise permitted. (Collier, supra, 142 Cal.App.3d 917, 923.)

Also, Plaintiff pleads in the SAC that her new negligence cause of action is not
barred by the workers' compensation exclusivity rule, based upon her current allegations
that the District failed to provide her adequate workers' compensation benefits. It is
contradictory for her to argue concurrently that she fully participated in the workers'
compensation system, as an alternative forum within the meaning of the tolling doctrine.
(Lab. Code, § 3706.)

Finally, Plaintiff incorrectly believes that the only relevant element of equitable
tolling is whether the District was prejudiced by the lapse of time between the denial of
the claim and the naming of the District as a defendant. However, the timeliness
requirements of statutes of limitation in general, and the act in particular, do not turn
upon whether a particular defendant was harmed by the delay. A plaintiff may not
unilaterally extend the Act's limitations periods by filing an amended action long after her
original claim was denied, merely by claiming there should be no prejudice to the public
entity. Rather, the other elements of the equitable tolling test are also important. Here,
Plaintiff cannot realistically plead there was adequate notice to the District of her
negligence theory, insofar as future litigation was concerned, nor that she acted
reasonably in delaying the filing of her action against the District. (See McDonald,
supra, 45 Cal.4th 88, 102.)

Therefore, Plaintiff cannot assert that the SAC was timely filed, as resting upon
the same facts as the original governmental claim (even though it referred to the same
accident), because the equitable tolling doctrine does not allow Plaintiff to forego a
timely filing of a court action or other proceeding to seek formal redress of injury, within
the statutory periods set by the Act. She cannot rely solely upon the filing or denial of
her original claim to assert timeliness. For all of these reasons, the trial court correctly
sustained the demurrer without leave to amend.

DISPOSITION

Judgment affirmed. Plaintiff to pay District's costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

AARON, J.

==========Footnotes==========

1. All further statutory references are to the Government Code unless noted.

2. The original complaint named the general contractor, Douglas E. Barnhart, Inc.,
(Barnhart) and alleged premises liability and general negligence. Barnhart is not a party
to this appeal.

3. No issues are raised in this appeal concerning her claims against the architects,
NTD Architecture, which were repleaded in the SAC.

4. Subject to several exceptions not involved here, an injured employee's exclusive
remedy against her employer is a right to recover workers' compensation benefits,
provided "the conditions of compensation set forth in Section 3600 concur." (Lab. Code,
§ 3602, subd. (a).) Under subdivision (c) of that section, where such conditions of
compensation are not present, "the liability of the employer shall be the same as if this
division had not been enacted."

5. Labor Code section 3706 provides, "If any employer fails to secure the payment of
compensation, any injured employee or his dependents may bring an action at law against
such employer for damages, as if this division did not apply." 


Return to : Ackerman v. Poway Unified School District

Print Case