Brandon G. v. Gray

• Decision Date: 08 August 2003
• Docket Number: No. A099014.,A099014.
• Citation: 3 Cal.Rptr.3d 330,111 Cal.App.4th 29
• Parties: BRANDON G., a Minor, etc., et al., Plaintiffs and Appellants, v. Patricia GRAY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

3 Cal.Rptr.3d 330

111 Cal.App.4th 29

BRANDON G., a Minor, etc., et al., Plaintiffs and Appellants, v. Patricia GRAY, Defendant and Appellant.

No. A099014.

Court of Appeal, First District, Division 1.

August 8, 2003.

Review Denied October 22, 2003.

Law Offices of Paul A. Frassetto, Paul A. Frassetto, San Francisco, for Plaintiffs and Appellants.

Provencher & Flatt, Douglas B. Provencher, Santa Rosa, for Defendant and Appellant.

STEIN, Acting P.J.

Patricia Gray, an attorney, appeals from a judgment awarding her former client, Mr. G., as guardian ad litem for his two children (plaintiffs), the sum of $41,724.40 on Mr. and Mrs. G.'s action against Gray for legal malpractice. Plaintiffs also have appealed from the judgment, contending the trial court erred in calculating the damages owed by Gray.

FACTUAL/PROCEDURAL BACKGROUND

In December 1992, Mr. and Mrs. G. enrolled their children in the KidStop daycare facility in Sonoma County, operated by Donna and Phillip Moore. Before enrolling the children, Mr. and Mrs. G. checked with the County of Sonoma Social Services Department (the County) and were told that KidStop was licensed, no complaints had been made about it and it appeared to be a good daycare facility. This information was a factor in Mr. and Mrs. G.'s decision to enroll their children at KidStop. On June 14, 1993, their older child reported that Phillip Moore had sexually molested her. Their other child was too young to communicate his own experiences, but the older child reported that Phillip Moore had not molested him. In July 1993, the younger child saw a newspaper photograph of Moore and reacted violently, making comments that indicated Moore had sexually molested him, too.

Moore later pled guilty or no contest to molesting several children at KidStop, including the older G. child.

On July 16, 1993, Mr. and Mrs. G. read a newspaper article about Moore that mentioned that two minor complaints had been made about KidStop. Mrs. G. went to the County and looked at its file on KidStop. It contained a number of complaints that predated Mr. and Mrs. G.'s involvement with KidStop. There was a complaint that a baby gate had been left open. There were several complaints that the facility was taking care of more children than it was licensed to care for. One parent complained that Donna Moore had yanked an infant by the arm and had yelled at him. This child also was observed to have a splotchy red back and a bruise on one cheek. There was a complaint that the children at the facility were given skimpy lunches and no milk. There was a complaint that the Moores' dog, which was allowed to mingle with the children, had bitten a neighbor.

In November 1993, Mr. and Mrs. G. hired Attorney James M. Barrett and the law firm of Cantor, Barrett & Wheeldin to represent the minors in an action against the County for misrepresenting that no complaints had been filed against KidStop and that it was a good daycare facility. Barrett obtained an order appointing Mrs. G. to act as the children's guardian ad litem, but took no further action.

In June 1994, Mr. and Mrs. G. saw a newspaper article reporting that other parents had filed a lawsuit against the County, and became concerned that Barrett did not seem to be pursuing their case. They learned from a friend, an attorney, that they needed to take action against the County within a year of learning of the County's misrepresentations. The friend gave them Gray's name, and they contacted her on June 14 or 15. They told Gray about the case, discussing the dates that they had learned about the molestations and the dates they learned about the County's misrepresentations. Gray agreed to take the case, telling them that they had a month in which to file claims against the County. Mr. and Mrs. G. wrote to Barrett that they would not be requiring any further assistance from him, asking him to forward his records on the matter to Gray.

On July 15, 1994, Gray filed claims against the County. The County rejected the claims for failing to file an application to file late claims. In September, Gray filed an application to file late claims. Gray then was elected to the bench, and transferred the case to an attorney who was representing other children and parents in actions against the Moores. After this attorney filed suit against the County on plaintiffs' behalf, the court granted summary judgment to the County on the basis that no application to file late claims had been filed. This court affirmed that judgment on appeal.

Plaintiffs then instituted this action for legal malpractice against Gray Barrett, and the law firm of Cantor, Barrett & Wheeldin. Barrett and his firm entered into good faith settlements with plaintiffs, each paying $24,500, for a collective payment of $49,000. The matter proceeded to trial against Gray. A jury returned a special verdict, finding that as a result of the molestations, each child had suffered economic damages in the amount of $20,000 and noneconomic damages in the amount of $125,000. The jury further found that Phillip and Donna Moore were 80 percent responsible for these damages and that the County was 20 percent responsible for the damages. As to the legal malpractice claim, the jury apportioned negligence between Mr. and Mrs. G. (10 percent), Barrett (35 percent), and Gray (55 percent). The court thereafter entered judgment against Gray in the amount of $41,724.40.

These appeals followed.

GRAY'S APPEAL

I. Accrual of Mr. and Mrs. G.'s Claims

Actions against a public entity, such as the County, are governed by the California Tort Claims Act (Gov.Code, § 900 et seq.). Under the Tort Claims Act, a plaintiff may not maintain an action for damages against a public entity unless a written claim first has been presented to the defendant and has been rejected (Gov. Code, §§ 905, 945.4). A claim based on a personal injury cause of action must be presented within six months of the date the cause of action accrued (Gov.Code, § 911.2). After six months, a plaintiff may apply to the public entity for leave to present a late claim. The application must be presented within a reasonable time, not to exceed one year after the cause of action accrued (Gov.Code, § 911.4). If the application is denied, the plaintiff may, within six months, petition the court for an order for relief from the claims-presentation procedures (Gov.Code, § 946.6). (Christopher P. v. Mojave Unified School Dist, (1993) 19 Cal.App.4th 165, 168-169, 23 Cal.Rptr.2d 353.) The court, however, lacks jurisdiction to grant relief if the application to file a late claim was filed more than one year after the cause of action accrued. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779, 39 Cal. Rptr.2d 860.)

Plaintiffs' position was and is that the cause of action against the County accrued on July 16, 1993, when Mr. and Mrs. G. first learned that, contrary to the representations of the County, complaints had been filed against KidStop. The six-month period for filing a claim without also filing an application to file a late claim, therefore, had expired by the time Mr. and Mrs. G. hired Gray on June 16, 1994. At that point, plaintiffs had to file an application to file late claims no later than July 15, 1994. Although Gray filed plaintiffs' claims by that date, she did not file an application to file late claims, effectively precluding plaintiffs not only from obtaining relief through the claims procedures, but also from pursuing court action against the County.

Gray's position was and is that plaintiffs' cause of action accrued not when they learned that the County's misrepresentations were false, but on June 14, 1993, when they learned that at least one child had been molested. If Gray is correct, the time for filing claims against the County expired before plaintiffs hired Gray, and Gray's negligence, therefore, was not a cause of any harm to plaintiffs.

In general, a claim accrues upon the occurrence of the last element essential to the cause of action, even if the plaintiff is unaware of the cause of action. Under the "delayed discovery rule," however, the accrual date of a cause of action is delayed until the plaintiff is aware of his or her injury and its cause. The plaintiff is charged with this awareness as of the date he or she suspects or should suspect that the injury was caused by someone's wrongful act. The period of limitations, therefore, will begin to run when the plaintiff has a "suspicion of wrongdoing"; in other words, when he or she has notice of information of circumstances to put a reasonable person on inquiry. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109-1111, 245 Cal.Rptr. 658, 751 P.2d 923.)

Code of Civil Procedure section 338, subdivision (d), effectively codifies the delayed discovery rule in connection with actions for fraud, providing that a cause of action for fraud "is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." In a case such as this, that date is the date the complaining party learns, or at least is put on notice, that a representation was false. In Magpali v. Farmers Group, Inc. (1996) 48 Cal. App.4th 471, 55 Cal.Rptr.2d 225, for example, the plaintiff allegedly was induced to leave his former employment by the representation that the defendant employer followed a nondiscrimination policy. The court held that the crucial event for accrual purposes was the date on which the plaintiff first learned that the employer actually followed a discriminatory policy; i.e., the date the plaintiff learned that the representation was false. (Id. at p. 484, 55 Cal.Rptr.2d 225.) In Snow v. A.H. Robins Co. (1985) 165 Cal.App.3d 120, 135, 211 Cal.Rptr. 271, similarly, the court ruled that a cause of action for misrepresentations about a defective intrauterine contraceptive device accrued not when the plaintiff became pregnant, but when she learned that the...