McKeever v. Security Consultants Group
Filed 2/26/13 McKeever v.
Security Consultants Group CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
>
RUBBIE McKEEVER, Plaintiff and Appellant, v. SECURITY CONSULTANTS GROUP, INC. et al., Defendants and Respondents. | F064294 (Super. Ct. No. 11CECG01326) |
APPEAL from
a judgment of the Superior Court of Fresno
County. Jeffrey Y. Hamilton, Jr.,
Judge.
Moore and
Moore, Howard Moore, Jr.; Moore & Moore, Kojo Howard Moore, for Plaintiff
and Appellant.
Bremer,
Whyte, Brown & O’Meara, John V. O’Meara, Patrick Au, and Sanaz Aryanpanah; Everett
L. Skillman, Jr., for Defendants and Respondents.
-ooOoo-
Appellant,
Rubbie McKeever, originally filed a complaint for personal
court. Following dismissal of the federal
action, McKeever filed an identical complaint in the superior court. On a motion
filed by defendants and respondents, Security Consultants Group, Inc. (Security
Consultants) and Adalberto Arreguin (Arreguin), the trial court granted
judgment on the pleadings in respondents’ favor. The court found that McKeever did not file
the superior court action within the applicable statute of limitations.
McKeever
contends the trial court erred in not
applying the equitable tolling doctrine to her case. According to McKeever, the statute of
limitations should have been tolled during the pendency of the federal court
action.
The effect
of equitable tolling is that the limitations period stops running during the
tolling event and begins to run again when the tolling event has
concluded. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370 (
limitations period as of the date McKeever filed her federal action to the
30-day grace period provided by 28 United States Code section 1367(d) to
find that she had 50 days to file the superior court action following the
dismissal of the federal action.
However, McKeever filed the superior court action 91 days after the
federal action was dismissed. As a
result, McKeever’s superior court action is barred by the
FACTUAL AND PROCEDURAL
HISTORIES
Since the
appeal is from a judgment on the pleadings, we treat the properly pleaded
allegations of the complaint as true. (
v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1401 (
On July 28, 2008, McKeever
accompanied an elderly woman to a Social Security office. After waiting a substantial amount of time to
speak to someone, McKeever questioned a Social Security Administration employee
about the unduly long wait. The employee
became rude and yelled at McKeever. For
no apparent reason, Arreguin intervened.
Arreguin grabbed McKeever and knocked her to the floor twice, causing
her to sustain both physical and
United States
government.
On July 7, 2010, McKeever filed a
complaint in the United States District Court against the United
States and Arreguin under the Federal Tort
Claims Act to recover damages for personal injury. McKeever personally served Arreguin with the
summons and complaint but Arreguin did not respond.
The United
States disclosed that Arreguin was employed
by Security Consultants. Security
Consultants was under contract with the United States Department of Homeland
Security to provide security at the office where the incident occurred. Since Arreguin was not employed by the United
States, McKeever could not proceed in
federal court. Pursuant to stipulation,
McKeever’s federal complaint was dismissed by court order on January 19, 2011.
On April 20, 2011, McKeever filed the
underlying complaint in the superior court.
This complaint was substantively identical to the federal court
complaint except that McKeever named Security Consultants as a defendant.
Security
Consultants and Arreguin moved for judgment on the pleadings, arguing that the
action was barred because it was not commenced within two years as required by
or within the federal statutory 30-day tolling period under 28 United States
Code section 1367(d). The trial
court granted Security Consultants and Arreguin’s motion and dismissed the
complaint.
In
reviewing the grant of a motion for judgment on the pleadings, we apply the
same rules that govern review of a dismissal following the sustaining of a
demurrer. As a result, we are not bound
by the determination of the trial court.
Rather, we exercise our independent judgment on whether a cause of
action has been stated. (
p. 1401.)
Equitable
tolling is a judge-made doctrine that operates independently of the literal
wording of the Code of Civil Procedure to suspend or extend a statute of
limitations as necessary to ensure fundamental practicality and fairness. (Lantzy,
supra, 31 Cal.4th at p. 370.)
Application of the doctrine requires timely notice and lack of prejudice
to the defendant and reasonable and good faith conduct on the part of the
plaintiff. (Addison v. State of California (1978) 21 Cal.3d 313, 319.)
“[T]he
effect of equitable tolling is that the limitations period stops running during the tolling event, and begins to run again
only when the tolling event has concluded.
As a consequence, the tolled interval, no matter when it took place, is
tacked onto the end of the limitations period, thus extending the deadline for
suit by the entire length of time during which the tolling event previously
occurred.†(Lantzy, supra, 31 Cal.4th at pp. 370-371.) Thus, equitable tolling only suspends the
running of a statute. It cannot add time
to the limitations period or revive a statute that has already run out. (Mills
v. Forestex Co. (2003) 108 Cal.App.4th 625, 651.)
Where the
tolling event is a federal court action, the statute of limitations for a state
claim over which the federal court has supplemental jurisdiction “shall be
tolled while the claim is pending [in federal court] and for a period of 30
days after it is dismissed unless State law provides for a longer tolling
period.†(28 U.S.C.
§ 1367(d).) Thus, when a federal
action is dismissed, there is a 30-day “grace period†added to the statute of
limitations. Accordingly, the days left
in the statute of limitations period at the time the federal claim was filed
begin to run on the 31st day after the federal claim is dismissed. (Bonifield
v. County
Here, it is
undisputed that the statute of limitations for McKeever’s personal injury
action was two years. (Code Civ. Proc.,
§ 335.1.) The injury occurred on July 28, 2008, and McKeever
filed her federal court action on July 7,
2010. Thus, when she filed
the federal action, there were 21 days left in the statute of limitations
period.
McKeever
contends that 28 United States Code section 1367(d) does not apply here
because she did not invoke supplemental jurisdiction allowed by federal courts
over her state claims. If McKeever is
correct, under the equitable tolling doctrine her state claim would have needed
to have been filed 21 days after the federal action was dismissed. As noted above, equitable tolling can only
suspend the running of the statute during the tolling event. It does not increase the limitations
period.
Moreover,
without deciding whether United States Code section 1367(d) is applicable,
if we were to apply it to this case, as the trial court did, and add 30 days to
the 21 days left in the limitations period, McKeever’s complaint would still be
untimely. She filed the superior court
action 91 days after the federal complaint was dismissed, 40 days after the
extended statute ran out.
McKeever
contends that the “discovery rule†should be applied to this case. In general, an action accrues on the date of
injury. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 (
However, 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.,
the injury and its negligent cause. (
1519, 1532.) McKeever acknowledges that
she was aware of the facts that might constitute a cause of action when she was
battered. Nevertheless, she contends
that the action should not be held to have accrued until she discovered that
Security Consultants was a likely party because the use of Doe defendants was
not available to her in federal court.
However,
ignorance of the identity of the defendant does not affect the statute of
limitations. (Jolly, supra, 44 Cal.3d at p. 1114.) Further, once McKeever discovered that
Security Consultants was a likely defendant, she still had time to file the
complaint within the statute of limitations.
Moreover, McKeever could, and did, name Doe defendants in the superior
court complaint. McKeever’s late
discovery of the identity of Security Consultants did not postpone the accrual
of her cause of action.
In sum,
applying equitable tolling to McKeever’s superior court action does not bring
it within the statute of limitations.
Contrary to McKeever’s apparent position, equitable tolling does not
create an open-ended statute of limitations.
We conclude her action is barred.
The
judgment is affirmed. Costs on appeal
are awarded to Security Consultants and Arreguin.
_____________________
Wiseman, Acting P.J.
WE CONCUR:
_____________________
Levy, J.
_____________________
Kane, J.
