Or. State Univ. v. Superior Court of San Diego Cnty.

• Citation: 225 Cal.Rptr.3d 31,16 Cal.App.5th 1180
• Decision Date: 08 November 2017
• Docket Number: D071752
• Parties: OREGON STATE UNIVERSITY, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; George R. Sutherland, Real Party in Interest.
• Court: California Court of Appeals

16 Cal.App.5th 1180

225 Cal.Rptr.3d 31

OREGON STATE UNIVERSITY, Petitioner,

v. The SUPERIOR COURT of San Diego County, Respondent;George R. Sutherland, Real Party in Interest.

D071752

Court of Appeal, Fourth District, Division 1, California.

Filed November 8, 2017

Noonan Lance Boyer & Banach, Ethan T. Boyer ; Higgs Fletcher & Mack and John Morris, San Diego, for Petitioner.

No appearance for Respondent.

Marc D. Adelman ; Dentons US and Charles A. Bird, San Diego, for Real Party in Interest.

McCONNELL, P. J.

IINTRODUCTION

Oregon State University (Oregon State) petitions for a peremptory writ of mandate directing the superior court to vacate an order overruling Oregon State's demurrer to George A. Sutherland's first amended complaint (complaint) and to enter a new order sustaining the demurrer without leave to amend.

Oregon State contends the challenged order violates the federal Constitution's full faith and credit clause (Clause) ( U.S. Const., art IV, § 1 ) because the complaint does not and cannot allege Sutherland's compliance with the Oregon Tort Claims Act's 180–day claims notice provision. ( Or. Rev. Stat. Ann. § 30.275, subds. (1), (2)(b).)¹ Sutherland counters the Clause does not require his compliance with the provision because requiring compliance would violate California's public policy by effectively depriving him of a remedy against Oregon State. Sutherland alternatively contends, if the Clause does require compliance with the provision, he can amend the complaint to plead facts showing compliance.²

We agree the superior court should have sustained Oregon State's demurrer because the Oregon Tort Claims Act's claims notice provision is entitled to full faith and credit in California. The provision does not conflict with or violate California's public policy and declining to give the provision full faith and credit would evince an impermissible policy of discriminatory hostility to the provision. As Sutherland has belatedly demonstrated he can plead facts showing compliance with the provision, we grant the petition in part and direct the superior court to vacate its order overruling Oregon State's demurrer and enter a new order sustaining the demurrer with leave to amend.

IIBACKGROUND

Sutherland's complaint asserts causes of action for negligence and negligent misrepresentation against Oregon State.³ The complaint alleges Sutherland was severely injured when a crane he was operating tipped over. At the time, he was using the crane to load a stack container owned by Oregon State onto a vessel owned by his employer, the Scripps Institution of Oceanography, a department of the University of California, San Diego. The stack container's weight was not displayed on its exterior and was not accurately recorded on the bill of lading provided by Oregon State.

Oregon State demurred to the complaint, asserting the complaint fails to state facts sufficient to constitute claims for negligence and negligent misrepresentation against Oregon State because the complaint does not and cannot allege compliance with the Oregon Tort Claims Act's claims notice provision. Oregon State argued the Clause requires such compliance.⁴

Sutherland opposed the demurrer, arguing Oregon State lost the benefits and protections of the Oregon Tort Claims Act when Oregon State consciously decided to engage in activities in California causing injury to a California resident. Sutherland also argued applying the Oregon Tort Claims Act, particularly its claims notice provision, would violate California's public policy of protecting the legal rights of its citizens and ensuring they are fully compensated by injuries caused by others.

Oregon State countered that applying the Oregon Tort Claims Act's claims notice provision would not undermine California's public policy because California's Government Claims Act ( Gov. Code, § 810 et seq. ) contains similar claims notice provisions (see Gov. Code, §§ 911.2, subd. (a), 945.4 )⁵ and both acts share similar governmental purposes. Conversely, not applying the Oregon Tort Claims Act's claims notice provision would be hostile to and discriminate against Oregon in violation of the Clause.

The court overruled the demurrer. The court acknowledged California and Oregon have similar government claims notice provisions, but found the Oregon Tort Claims Act has a damages cap and California's Government Claims Act does not.⁶ The court further found California's public policy of protecting people injured within its borders would not be promoted by applying the Oregon Tort Claims Act because applying it would only benefit Oregon's public fisc and effectively deprive Sutherland of a remedy against Oregon State.

IIIDISCUSSION

A

We review a decision to overrule a demurrer de novo. ( Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 432, 194 Cal.Rptr.3d 19.) The federal Constitution provides, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." ( U.S. Const., art. IV, § 1 ; Franchise Tax Bd. v. Hyatt (2003) 538 U.S. 488, 494, 123 S.Ct. 1683, 155 L.Ed.2d 702 ( Hyatt I ).) A statute is a public act under this provision. ( Franchise Tax Bd. v. Hyatt (2016) ––– U.S. ––––, 136 S.Ct. 1277, 1281, 194 L.Ed.2d 431 ( Hyatt II ).) Consequently, the Oregon Tort Claims Act, including its claims notice provision, is entitled to full faith and credit in California.

However, the entitlement to full faith and credit is not absolute. On subject matters in which California is competent to legislate, the Clause does not require California to apply another state's statute if the other state's statute reflects a conflicting and opposing policy. ( Hyatt I , supra , 538 U.S. at pp. 494, 496, 123 S.Ct. 1683 ; Hyatt II , supra , 136 S.Ct. at p. 1281.) Additionally, " ‘ "for [California's] substantive law to be selected in a constitutionally permissible manner, [California] must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." ’ " ( Hyatt I , at pp. 494–495, 123 S.Ct. 1683.)

California is undoubtedly competent to legislate on the subject matter of personal injuries to one of its citizens within its borders. ( Hyatt I , supra , 538 U.S. at p. 494, 123 S.Ct. 1683.) California also has sufficient contacts to apply its substantive law in this case as Sutherland was injured while working here. ( Id. at p. 495, 123 S.Ct. 1683, citing Carroll v. Lanza (1955) 349 U.S. 408, 413, 75 S.Ct. 804, 99 L.Ed. 1183 ["The State where the tort occurs certainly has a concern in the problems following in the wake of the injury"]; Pac. Emplrs. Ins. Co. v. Indus. Accident Comm'n (1939) 306 U.S. 493, 503, 59 S.Ct. 629, 83 L.Ed. 940 ["Few matters could be deemed more appropriately the concern of the state in which [an] injury occurs or more completely within its power"].)

Nonetheless, applying the Oregon Tort Claims Act's claim notice provision would not conflict with or violate California's public policy as California's Government Claims Act has similar claims notice provisions (See Gov. Code, §§ 911.2, subd. (a), 945.4 ). Moreover, both acts' provisions serve similar purposes, including allowing investigation of claims while evidence is fresh and available, facilitating settlement of meritorious claims, and addressing the circumstances giving rise to the claims. (Compare Dunn v. City of Milwaukie (2015) 270 Or.App. 478, 348 P.3d 301, 307 ; Robinson v. Shipley (1983) 64 Or.App. 794, 669 P.2d 1169, 1171 ; with Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 200, 61 Cal.Rptr.3d 89 ; Nelson v. Superior Court (2001) 89 Cal.App.4th 565, 573, 107 Cal.Rptr.2d 469.) Further, both acts' provisions function similarly by precluding a personal injury claimant from maintaining an action against a covered public entity unless the claimant has provided notice of the claim to the public entity within six months of the claim's accrual. (Compare Or. Rev. Stat. Ann. § 30.275, subds. (1), (2)(b), with Gov. Code, §§ 911.2, subd. (a), 945.4.) Lastly, both acts' provisions apply to public colleges and universities.⁷ (Compare Or. Rev. Stat. Ann. §§ 174.109, 174.117, subd. (1)(i), 30.260, subd. (4)(a), with Gov. Code, § 811.2.)

Even if the Oregon Tort Claims Act's claims notice provision did conflict with or violate California's public policy, California may only decline to apply the provision on this ground as long as the decision to do so does not evince a policy of discriminatory hostility to the provision. ( Hyatt II , supra , 136 S.Ct. at p. 1281.) Here, a decision declining to apply the provision would evince a policy of discriminatory hostility to the provision because the decision would create a special rule allowing a suit to proceed against Oregon State under circumstances that would preclude a comparable suit against a comparable California public entity. ( Id. at p. 1282.) While California has a public policy interest in ensuring adequate recourse for injuries to its citizens, the United States Supreme Court has determined this interest is not sufficient to justify disregarding the Clause. (See id . at p. 1282.) Consequently, we conclude the superior court erred by overruling Oregon State's demurrer.⁸

B

This conclusion does not end our inquiry. We must further determine whether Sutherland has demonstrated a reasonable possibility he can cure the pleading defect by amendment. ( Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010, 209 Cal.Rptr.3d 280, 382 P.3d 1116 ; Green Valley Landowners Assn. v. City of Vallejo , supra , 241 Cal.App.4th at p. 432, 194 Cal.Rptr.3d 19.)

To comply with the Oregon Tort Claims Act's claims notice provision, a plaintiff must file a claim or a complaint within 180 days after his injury. ( Or. Rev. Stat. Ann. § 30.275, subds. (1), (2)(b), (3)(c).) The...