Oakes v. Loppnow
Filed 9/11/13 Oakes v. Loppnow CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
DAVID OAKES,
Plaintiff and Appellant,
v.
JEFFREY GRAY LOPPNOW,
Defendant and Respondent.
B243251
(Los Angeles
County Super.
Ct.
No. LC092837)
APPEAL from
a judgment of the Superior Court
of
County, Maria E. Stratton, Judge. Reversed and remanded.
Law Offices
of Gabor Szabo and Gabor Szabo for Plaintiff and Appellant.
Law Offices
of Peter M. Wucetich and Peter M. Wucetich for Defendant and Respondent.
___________________________________
Plaintiff and appellant David Oakes
appeals from a judgment of dismissal
in favor of defendant and respondent Jeffrey Gray Loppnow
Jeffrey waived the statute of limitations defense by citing an incorrect
code section in his answer; 2) the trial
court erred in determining the merits of Jeffrey’s statute of limitations
defense based solely on evidence submitted in connection with the motion to
bifurcate trial; 3) there is no
substantial evidence to support the trial court’s finding the relation-back
doctrine is inapplicable, because Oakes knew the identity of the driver at the
time he filed his lawsuit; 4) the trial
court abused its discretion in finding Mercury Insurance Group and defense
counsel owed no duty to Oakes to provide information about other potential
defendants; 5) and the trial court erred
in finding Oakes’s property damage claim was time-barred as well.
We conclude Jeffrey’s failure to
specify the applicable statute of
limitations waived the defense.
Therefore, we reverse the judgment and remand for trial.
FACTS AND
PROCEDURAL HISTORY
On April
16, 2009, Jeffrey was driving his truck on Saticoy Street, approaching Fallbrook Avenue. He swerved across traffic to make a left turn
onto Fallbrook, at which point Oakes’s car collided with Jeffrey’s truck and
struck another vehicle. Los Angeles
Police Department (LAPD) officers responded and administered a field sobriety
test to Jeffrey. He was arrested for
driving under the influence. Oakes
observed the field sobriety test but was unable to speak to Jeffrey due to his
arrest. The drivers of all three
vehicles involved in the accident were male; there were no women involved in
the accident. Oakes knew the driver of
the truck was a man.
On the day of the incident, the
investigating officer prepared a traffic collision report, which identified the
driver, the make, and the license number of each vehicle involved in the
accident. The report did not specify the
registered owner of the truck driven by Jeffrey. It stated Jeffrey’s insurance carrier was
Mercury Insurance Group and provided his policy number.
Oakes learned from his insurance
adjuster that Jeffrey’s wife Kathi Loppnow had insurance through Mercury
Insurance Group. There is no information
in the record explaining where the insurance adjuster obtained this information
or why the adjuster believed Kathi was involved in the accident. However, a health insurance claim for Oakes’s
medical treatment, prepared on August 19, 2009, lists Kathi as an “other
insured†and provides an insurance policy number different than Jeffrey’s. At some point, Mercury apparently made a
settlement offer on behalf of Kathi.
In April 2010, Oakes hired Attorney
Gabor Szabo. Szabo contacted
Mercury. On April
12, 2010, Mercury acknowledged a letter of representation from Szabo. The heading provided a claim number, stated
“our insured†was Kathi, and stated the date of loss was April 16, 2009. Mercury
reiterated a settlement offer of $4,200 on behalf of Kathi. In letters to Szabo on October 14, and
November 11, 2010, Mercury identified the claim in the same manner, reiterated
the settlement offer, and requested medical bills and records. None of these settlement letters were sent to
the Loppnows.
On December 14, 2010, Mercury
acknowledged receipt of a letter from Szabo demanding the policy limits for Oakes’s
personal injury claim. Mercury stated it
could not accept or reject the demand until it received and reviewed specified
medical records. The letter noted a copy
was sent to Kathi.
Mercury sent identical letters to
Szabo on January 21, and February 18, 2011, identifying the claim in the same
manner, reiterating the request for medical records, and asking for workers’
compensation information. Mercury sent
copies of these letters to the Loppnows.
Oakes brought a personal injury
action against Kathi on February 24, 2011.
The complaint alleged “Defendant Kathi J. Loppnow and Defendants DOES 1
through 5, . . . negligently, carelessly and recklessly operated, maintained,
controlled, cared for, leased, manufactured, lent and owned . . . a vehicle on Fallbrook
Ave . . . so as to cause it to collide with the vehicle operated by Plaintiff,
David Oakes, causing the injuries and damages to Plaintiff as hereinafter set
forth.†On April 5, 2011, Kathi filed an
answer to the complaint, denying any liability for Oakes’s injuries.
In July 2011, Oakes requested and
received a copy of the traffic collision report. On January 17, 2012, Oakes filed an amendment
to the complaint, designating Jeffrey as Doe 1, a defendant whose identity was
previously unknown.
A mandatory settlement conference
was scheduled for January 24, 2012.
Shortly before the conference, defense counsel stated to the trial court
that Kathi was not the registered owner of the truck, not an insured party for
the accident, and otherwise uninvolved with the incident. The court advised Oakes to dismiss the action
against Kathi in the absence of evidence showing she was the registered owner
of the vehicle involved in the accident.
On February 10, 2012, Oakes dismissed Kathi as a defendant.
On March 15, 2012, Jeffrey filed an
answer denying the allegations of the complaint. He raised a number of affirmative defenses,
including the complaint “is barred by the applicable statute of limitations,
including, but not limited to, Code of Civil Procedure, [s]ection 340.â€
personal injury action, however, is set forth in Code of Civil Procedure
section 335.1.
On June 12, 2012, Jeffrey filed a
motion to bifurcate the trial to allow adjudication of the statute of
limitations issue. Oakes filed his
opposition on June 28, 2012, along with a motion in limine to exclude any
evidence relating to the issue of statute of limitations. Oakes raised
several arguments in his opposition, including that Jeffrey waived the statute
of limitations defense by failing to cite the proper code section in his
answer. Szabo submitted his
declaration stating that Oakes dismissed the action against Kathi based on
defense counsel’s promise that Jeffrey would be substituted as the proper
defendant. Oakes reasonably believed
Kathi was the insured party responsible for damages based on Mercury and
Jeffrey’s representations, including the settlement letters on Kathi’s behalf. He would have to call numerous witnesses to
try the statute of limitations issue, including insurance adjusters from
Mercury and GEICO.
A hearing was held on July 11,
2012. The trial court asked whether
Jeffrey was seeking a jury trial or a decision from the court on the statute of
limitations issue. Jeffrey’s attorney
asked the court to decide the issue based on the declarations attached to the
motion to bifurcate. The court asked if
Oakes wished to be heard. Szabo noted
that Oakes submitted a motion in limine.
He argued the statute of limitations issue should be decided as a matter
of law based on the failure to cite the correct statute of limitation in the
answer. The court disagreed with this
analysis and added, “But what I will do, I will take it under submission and
decide the issue based on the declarations, and then I will notify you next
week.†Jeffrey’s attorney agreed, and
both parties waived notice.
The following day, the trial court
issued a minute order finding Oakes had the requisite information to identify
Jeffrey before filing his complaint. Oakes
knew he had been hit by a male driver.
He also received at least two letters from Mercury that were copied to
both Kathi and Jeffrey, raising the inference that Jeffrey was involved in the
accident or coverage issues. Although
Oakes did not receive the traffic collision report until after the statute of
limitations had run, Szabo’s declaration did not explain the delay. Oakes’s own insurer told him that Kathi was
the insured party, and Oakes never expressly denied knowing Jeffrey was the
driver of the truck, only that Jeffrey was insured by Mercury. Therefore, the court found Oakes had actual
knowledge of Jeffrey’s identity. In
addition, the court found Jeffrey had not waived the statute of limitations
defense, because the answer was sufficient to put Oakes on notice. Jeffrey was not equitably estopped from
asserting the defense, because Oakes admitted that he relied on information
from his own insurer, and Kathi and her counsel were not obligated to provide
information about other defendants. The
court found defendants and Mercury did not make any affirmative
misrepresentations to Oakes. The
assertion that Kathi was dismissed in exchange for proceeding against Jeffrey
was not credible, since Oakes could not proceed against Kathi in good faith anyway.
On July 25, 2012, the trial court
issued a judgment granting Jeffrey’s motion to bifurcate and try the statute of
limitation issue separately, dismissing the action, and entering judgment in
favor of Jeffrey. On August 8, 2012,
Oakes filed a timely notice of appeal from the judgment.
DISCUSSION
Oakes contends because Jeffrey did
not cite the correct section in the Code of Civil Procedure in his answer, he
waived his statute of limitations defense.
We agree.
“Ordinarily, the statute of limitations
is a personal privilege which ‘. . . must be affirmatively invoked in the lower court by appropriate pleading .
. .’ or else it ‘is waived.’
[Citation.]†(
Supp. 10, 15.) There
are two ways to properly plead a statute of limitations defense. (Brown
v. World Church (1969) 272 Cal.App.2d 684, 691.) One way is to allege facts showing that the
action is barred and the delay in commencing the action is raised as a
defense. (Mysel v. Gross, supra, at
p. 15.) The second way is to comply
with Code of Civil Procedure section 458, which provides in pertinent part that
“it may be stated generally that the cause of action is barred by the
provisions of Section ____ (giving the number of the section and subdivision
thereof, if it is so divided, relied upon) of the Code of
Procedure; and if
such allegation be controverted, the party pleading must establish, on the
trial, the facts showing that the cause of action is so barred.â€
“The failure to properly plead the
statute of limitations waives the defense.
[Citation.]†(
Cal.App.4th 84, 91.) “It is necessary
for defendant who pleads the statute of limitations to specify the applicable
section, and, if such section is divided into subdivisions, to specify the
particular subdivision or subdivisions thereof.
If he fails to do so the plea is insufficient. [Citations.]â€
(Brown v. World Church,
We note that
when the relevant facts are undisputed, as is the case here, “the application
of the statute of limitations may be decided as a question of law.†(International Engine Parts, Inc. v.
Feddersen & Co. (1995) 9
Cal.4th 606, 611; see also McKeown
v. First Interstate Bank (1987)
194 Cal.App.3d 1225, 1228.)
Jeffrey did not allege the
underlying facts establishing a statute of limitations bar, and he pled the
wrong code section. Jeffrey cited Code
of Civil Procedure section 340 as the applicable statute of limitations in his
answer. On appeal, Jeffrey cites Code of
Civil Procedure section 339 as the applicable statute of limitations for a
personal injury claim. However, the
relevant code section is actually Code of Civil Procedure section 335.1. (Krupnick
v. Duke Energy Morrow Bay (2004) 115 Cal.App.4th 1026, 1028.) As a result of his failure to cite the
correct code section, Jeffrey forfeited a statute of limitations defense for
Oakes’s personal injury claim. On
appeal, he has not cited any authority that provides otherwise. Jeffrey did
not seek permission from the trial court to amend his answer to cite the
correct statute of limitations. In
deciding the statute of limitations issue, the trial court should have found
the defense was forfeited.
DISPOSITION
The judgment is reversed and
remanded for trial. The trial court is directed to enter new and different
orders granting the motion to bifurcate and finding the statute of limitations
defense has been waived.
Appellant David Oakes is awarded his costs on appeal.
KRIEGLER,
J.
We concur:
TURNER,
P. J. MOSK,
J.
Because more than one party shares the last name Loppnow, we will refer
to them individually by their first names.
of Civil Procedure section 340 requires that civil actions must be brought
within one year if they involve: (a) statutory penalty or forfeiture to individual
and state; (b) statutory forfeiture or
penalty to state; (c) libel, slander,
false imprisonment, seduction, forged or raised checks, injury to animals by
feeder or veterinarian; (d) damages for
seizure; or (e) action by good faith
buyer.
