Parker v. Dolan CA4/1

Filed 9/1/23 Parker v. Dolan CA4/1
NOT TO BE PULISHED 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 This opinion has not been certified for publication or ordered published for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
ROBERT PARKER, D081180
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-00016417-
CU-DF-CTL)
JOSEPH DOLAN,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
John S. Meyer, Judge. Affirmed.
Robert Parker, in pro. per., for Plaintiff and Appellant.
Konoske Akiyama & Brust, Gregory P. Konoske and Megan K.
Hawkins for Defendant and Respondent.
Robert Parker sued Joseph Dolan for battery more than two years after
Dolan allegedly pushed his handkerchief in Parker’s face during a fight over
a treadmill in a gym. The trial court sustained Dolan’s demurrer without
leave to amend on statute of limitations grounds. Parker contends he should
be able to invoke the discovery rule to extend the applicable statute of
limitations based on his claim that the stress of the event suppressed his
memory of the alleged battery.
We agree with the trial court that the discovery rule has no application
to the facts of this case, nor can Parker save his action through amendment.
Accordingly, we affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
On March 4, 2019, Parker hopped on a treadmill at his gym, part of a
recreation center associated with San Diego State University. There was a
small white courtesy towel in the treadmill’s cupholder, but the treadmill did
not otherwise appear to be occupied or in use. Moments later, Dolan
approached and declared that he had reserved the treadmill with the hand
towel. According to Parker, Dolan became “incensed and irrational,”
unplugging Parker’s headphones from the treadmill and verbally berating
him. Police were called, and the gym later revoked Parker’s membership.
Representing himself, Parker sued the university gym and “Does 1-9”
in May 2020 for defamation, breach of contract, breach of the covenant of
good faith and fair dealing, and sex discrimination in connection with these
events. His complaint identified “Doe 1” as the adult male with whom he
had the dispute over the treadmill, but claimed to be “truly ignorant” of his
name. The university filed an answer and the parties engaged in discovery.
2
In November 2021, Parker moved for leave to amend. The trial court
granted the motion, and Parker filed an amended complaint on December 22,
2021, for the first time naming university professor Dolan as “Doe 1” and
adding a new cause of action for battery. Details of the altercation were also
provided, including allegations that during the incident Dolan pointed
aggressively at Parker and wiped a mucous-soaked handkerchief on Parker’s
face. Parker claimed he then knocked Dolan’s hand away and feigned a jab,
intentionally not making contact with Dolan.
Parker voluntarily dismissed the defamation cause of action against
Dolan, leaving only the claim for battery. Dolan demurred on statute of
limitations grounds, asserting that Parker’s remaining claim did not relate
back to the filing of the initial complaint and was therefore barred by the
applicable two-year statute of limitations. (Code Civ. Proc, § 335.1.)1
Parker did not dispute that his battery claim did not relate back to the
filing date of his first complaint. Instead, he asserted that it was timely
pursuant to the discovery rule. He maintained that he did not realize a
battery occurred until viewing a video produced by the university during
discovery. Parker attributed this gap in his otherwise clear memory of the
day’s events to the trauma he experienced as a result of his interactions with
police and gym staff. He also offered to amend his complaint to specifically
plead suppressed memory.
The trial court sustained the demurrer without leave to amend,
agreeing that the battery cause of action was time barred. It first confirmed
1 With the incident occurring on March 4, 2019, the two-year limitations
period would normally run on March 4, 2021. An emergency rule extended
that deadline by 180 days or less due to the COVID-19 pandemic (Cal. Rules
of Court, Appx., Emergency Rule 9), meaning that any complaint had to be
filed by August 30, 2021 unless the deadline were extended for some other
reason.
3
that the relation-back principle did not apply because Parker’s battery claim
asserted a different injury based on different ultimate facts than were
pleaded in the original complaint, it also concluded that the battery
allegations in the amended complaint did not comport with the traditional
application of the discovery rule. Indeed, Parker’s original complaint was
evidence that he was aware of salient details surrounding the battery before
viewing the video produced in discovery.
DISCUSSION
Parker challenges both the demurrer ruling and denial of leave to
amend. We review an order sustaining a demurrer de novo, giving the
complaint a reasonable interpretation, considering all material facts that are
properly pleaded and matters that may be judicially noticed, but not
contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318; Yvanova v. New Century Mortgage Corp. (2016) 62
Cal.4th 919, 924.) If a demurrer is sustained without leave to amend, we look
to see if there is a reasonable possibility the defect can be cured by
amendment. (Blank, at p. 318.) If there is, the court abused its discretion in
denying leave to amend. (Ibid.)
“A plaintiff must bring a claim within the limitations period after
accrual of the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35
Cal.4th 797, 806 (Fox); see Code Civ. Proc., § 312.) A cause of action
generally accrues when the cause of action is complete with all its elements.
(Fox, at p. 806.) Battery has a two-year limitations period. (Code Civ. Proc,
§ 335.1.) Unless some exception applies, that period elapsed on August 30,
2021, two years and 178 days after the March 2019 incident. (See note 1,
ante.)
4
To overcome this bar, Parker invokes the “discovery rule” as an
exception to strict application of the statute of limitations. The discovery
rule “postpones accrual of a cause of action until the plaintiff discovers, or has
reason to discover, the cause of action”—i.e., when he or she “ ‘has reason at
least to suspect a factual basis for its elements.’ ” (Fox, supra, 35 Cal.4th at
p. 807.) The standard is an objective one. A court’s inquiry is not
“hypertechnical,” but rather asks whether a plaintiff has reason “to at least
suspect that a type of wrongdoing has injured them.” (Ibid.) “[P]laintiffs are
required to conduct a reasonable investigation after becoming aware of an
injury, and are charged with knowledge of the information that would have
been revealed by such an investigation.” (Id. at p. 808.)
Parker contends that he can avail himself of the discovery rule because
“his knowledge of the battery was not formed” until long after the treadmill
incident took place. He asserts that he did not remember the specifics of the
event because his upbringing made him particularly prone to stress such that
he could not process the situation. Before the trial court, he claimed the
memory had been “suppressed or supplanted” by his traumatic experience
with police.
But Parker’s original complaint, and the nature of the battery itself,
preclude application of the discovery rule. In his initial May 2020 pleading,
Parker claimed that Dolan approached him shortly after he began using one
of the treadmills. Dolan seemed “incensed and irrational” and “removed Dr.
Parker’s headphones from the treadmill sound system.” In Parker’s retelling,
Dolan verbally “berated” him. Parker alleged he left to gather himself, and
eventually returned to his workout. At this point, gym staff reported a
“Physical Altercation” to campus police. Later, Dolan told police that Parker
had struck him. Asserting the battery for the first time in his amended
5
complaint, Parker claimed Dolan threw a mucous-stained handkerchief at
him, prompting him to feign a punch Dolan’s way. Given that Parker was
aware of two reports of a physical encounter, showed significant knowledge of
the events surrounding the alleged battery, and reacted to the alleged battery
by feigning a punch, a reasonable investigation would have given him
knowledge of facts sufficient to state a battery claim. (Fox, supra, 35 Cal.4th
at p. 808.)
This result is not affected merely because Parker cites his “clear
allegation” that he never had the requisite knowledge. A plaintiff bears the
burden to show diligence, and “ ‘conclusory allegations will not withstand
demurrer.’ ” (Fox, supra, 35 Cal.4th at p. 808.) The trial court concluded
that, whether he truly knew of the alleged battery, “as a matter of law he
should have known.” While we review the court’s ruling and not its rationale
(Sipple v. City of Hayward (2014) 225 Cal.App.4th 349, 355), we reach the
same conclusion that on the facts as alleged, Parker had sufficient inquiry
notice.
Turning to the denial of leave to amend, “appellate courts reviewing a
general demurrer make a de novo determination of whether the complaint
alleges ‘facts sufficient to state a cause of action under any possible legal
theory’ ”—including a theory presented for the first time on appeal or those
first raised by the reviewing court. (Gutierrez v. Carmax Auto Superstores
California (2018) 19 Cal.App.5th 1234, 1244.) But even under this broad
standard, there is no reasonable possibility that Parker can amend his
pleading to properly invoke the discovery rule. He focuses on why this event
was particularly stressful for him, representing that he was raised in
“ ‘cowboy culture’ ” and is prone to an “extreme production of adrenalin” in
stressful situations. Allegedly, these subjective reactions left him unable to
6
discover the battery at the time it occurred. As we have explained, however,
the discovery rule focuses on how a reasonable person would have responded
to the circumstances of the case, not how a particularly sensitive or
vulnerable person did respond.
Parker cites no authority for extending the limitations period by
applying the discovery rule merely because a plaintiff claims to have
experienced memory-clouding stress during a battery. The cases he cites are
readily distinguishable.
In Evans v. Eckelman (1990) 216 Cal.App.3d 1609, three brothers sued
their uncle for sexually abusing them over a two-year period when they were
teenagers. (Id. at pp. 1612–1613.) They did not discover their abuse until
years later when one brother began therapy and opened a dialogue with his
siblings. (Id. at p. 1613.) Despite the delay, the appellate court concluded
the discovery rule could apply to extend the applicable statute of limitations.
It reasoned that “the shock and confusion engendered by parental
molestation, together with the parent’s demands for secrecy, may lead a child
to deny or block the traumatic events from conscious memory.” (Id. at
pp. 1614–1615.) Accordingly, the brothers should have been given leave to
amend to add facts showing that their “ ‘internalized shame, guilt, and self
blame’ ” left them unaware at the time of the abuse that their uncle was
doing anything wrong. (Id. at p. 1619.)
The court reached a similar conclusion with respect to the discovery
rule in Daley v. Regents of the University of California (2019) 39 Cal.App.5th
595 (Daley), a case involving alleged medical battery. Daley sued in 2015,
claiming she was injured when doctors conducting a clinical trial performed
an operation in 2003 that was substantially different than what she agreed
to. (Id. at pp. 598−600.) She claimed a law firm advisement to members of
7
that clinical trial put her on notice that she might have been harmed years
prior. (Id. at p. 606.) The trial court dismissed her action on statute of
limitations grounds, applying the two-year period for medical battery. On
appeal, the appellate court reasoned that the discovery rule might apply.
The operation was performed while Daley was unconscious. (Ibid.) Any
visible scarring was consistent with what she claimed she expected from
surgery, and all evidence of the injury was internal. (Id. at p. 607.) Daley had
lost her twins in 2003 (id. at p. 600), which the medical group claimed should
have put her on notice, but she thought it resulted from natural pregnancy
complications. (Id. at pp. 606–607.) Given the factual disputes in the record,
the case was remanded for the trial court to decide whether Daley exercised
reasonable diligence, and what she would have learned with such diligence,
for purposes of the discovery rule. (Id. at p. 607.)
Evans and Daley stand for the proposition that the discovery rule may
apply to toll statutes of limitation where the alleged battery is somehow
concealed or difficult to discern. Both employ an objective standard by
inquiring whether a reasonable person under the circumstances might have
failed to discover their injury and/or its cause. As the trial court explained,
this battery was neither hidden nor hard to comprehend. Parker was awake,
an adult, and remembered salient details of the event, including that two
parties described the event in a way that indicated a physical confrontation.
The factors that make repression likely in cases like Evans are not present
here. We see no basis upon which Parker can argue that a reasonable person
would not have discovered the battery he alleges at the time it occurred.
Accordingly, there was no abuse of discretion in denying leave to amend.
8
DISPOSITION
The judgment is affirmed. Dolan is entitled to recover costs on appeal.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
KELETY, J.
9