Filed 2/28/18 Dorantes v. Chapin CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



BRIANNA DORANTES,

Plaintiff and Appellant,

v.

EDWARD CHAPIN,

Defendant and Respondent.
D071067



(Super. Ct. No. 37-2014-00015652- CU-PO-CTL)


APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.

Fierstadt & Mans and Joseph A. Carucci; Esner, Chang & Boyer, Holly N. Boyer and Joseph S. Persoff for Plaintiff and Appellant.
Gordon & Rees Scully Mansukhani, Craig J. Mariam and Christina M. Vander Werf for Defendant and Respondent.
Brianna Dorantes (Plaintiff) sued Edward Chapin (Defendant), an attorney, for legal malpractice. The trial court granted Defendant's motion for summary judgment on the basis that, as a matter of law, Plaintiff could not establish causation, a necessary element in Plaintiff's cause of action for professional negligence. The trial court did not commit error on the record presented to it, and Plaintiff forfeited appellate consideration of her new theories and related arguments on appeal that were not presented to the trial court. Accordingly, we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
" 'Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion.' " (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717.) We consider all the evidence in the moving and opposing papers, except the one statement to which an objection was made and sustained, liberally construing and reasonably deducing inferences from Plaintiff's evidence, resolving any doubts in the evidence in Plaintiff's favor. (Id. at p. 717; Code Civ. Proc., § 437c, subd. (c).)
In her complaint, Plaintiff alleges four causes of action against three defendants: sexual battery, battery, intentional infliction of emotional distress, and false imprisonment against Plaintiff's former third grade teacher who allegedly molested her; and legal malpractice against Defendant and another attorney for failing to timely file a government tort claim against the school district (District) that employed the former teacher. All that is at issue in this appeal is Plaintiff's claim for malpractice against Defendant.
Plaintiff was an adult when she filed the underlying lawsuit in 2014. According to the complaint, when Plaintiff was eight years old, her 52-year-old male teacher would kiss her and insist that she sit on his lap. At times, Defendant would place his hands on Plaintiff's thigh; at times, he would put his hands down her pants, touching her genitals; and at times, he would take her hand and put it down his pants to touch his genitals. At her deposition, Plaintiff testified that, in 2003 when the teacher asked her to sit on his lap, she felt "scared and uncomfortable; like weak, gross." In response to an interrogatory, Plaintiff testified that, when the teacher would "stroke" her, she would experience a "shaky nervousness" in her gut and a "balled up pain" in her throat.
In a declaration, Plaintiff testified that, in "late March 2012," when she was 17 years old, she told her mother about the molestation. Plaintiff further testified that, "from Spring 2012 through Fall 2012," her mother communicated with Defendant on her behalf "for the purpose of filing a lawsuit related to those events." Plaintiff's mother testified consistently.
According to the complaint, during the time of the alleged unwanted physical contact, the District was a public entity for purposes of California's Tort Claims Act, Government Code section 810 et seq. Plaintiff alleges that Defendant failed to timely submit a government tort claim or to seek leave to file a late claim against the District on her behalf. This failure, Plaintiff further alleges, breached Defendant's duty of due care and caused her to suffer damages "by forever being barred from bringing a claim against [the District]."
Following discovery, Defendant filed a motion for summary judgment. Among other arguments, Defendant contended that, as a matter of law, Plaintiff could not prove that Defendant contributed to—i.e., caused—Plaintiff's alleged damages.
Defendant's position was that Plaintiff's potential claim(s) against the District accrued in 2003, based on Plaintiff's deposition testimony that, after the teacher asked Plaintiff to sit on his lap in 2003, she felt "scared and uncomfortable; like weak, gross." (Citing and applying S.M. v. Los Angeles Unified School Dist. (2010) 184 Cal.App.4th 712, 717 (S.M.) [a claim for childhood molestation accrues when the child knows that the alleged molester's actions that injured the child were wrong].) According to Defendant's points and authorities, because Plaintiff's potential claim(s) based on the molestation accrued in 2003, the filing of a government tort claim was time-barred years before Plaintiff's mother first contacted Defendant in 2012. Thus, Defendant's argument continued, Plaintiff could not establish the requisite causation—namely, " 'but for the negligence of the attorney, a better result could have been obtained in the underlying action' " (quoting Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1057).
In her opposition to Defendant's motion, Plaintiff did not respond to the above-described argument or evidence. In response to the factual premise for Defendant's argument—namely, that Plaintiff's claim against the District accrued in 2003—Plaintiff argued that, because Defendant had also presented an alternative argument based on Plaintiff's allegation that she first told her mother of the molest in 2012, the "dispute over the [date of] accrual . . . must be decided by the fact-finder."
In reply, Defendant argued that Plaintiff's opposition did not contain "any factual background, statutory basis, or discussion of the applicable law" in response to the factual premise (that Plaintiff's claim, if any, accrued in 2003) for his substantive argument that Plaintiff's claim was time-barred before Defendant's first involvement. In further support of the substantive argument raised in his moving points and authorities, Defendant also argued that a civil cause of action for child molestation generally accrues at the time of the molestation, relying on evidence that, at the time of the unwanted touching here, Plaintiff was "scared" and experienced "shaky nervousness."
At the conclusion of oral argument, the court took the matter under submission, issuing a minute order a few days later. In part, the court ruled that, under S.M., supra, 184 Cal.App.4th at page 717, Plaintiff's molestation claims accrued in 2003; and because the applicable limitations period commenced in 2003, Plaintiff's potential government claim was time-barred prior to Defendant's first involvement in 2012. Accordingly, the court granted Defendant's motion and dismissed Defendant from the action. Plaintiff timely appealed.
II.
STANDARDS OF REVIEW
Because the trial court's judgment is " 'presumed correct,' " Plaintiff, as the appellant, has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 535 (Swigart) [appeal from defense summary judgment].)
We review de novo an order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) As a practical matter—and as particularly apt in the present appeal—" ' "we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." ' " (Swigart, supra, 13 Cal.App.5th at p. 536.)
A defendant is entitled to a summary judgment on the basis that the "action has no merit" (§ 437c, subd. (a)(1)) only where the court is able to determine from the evidence presented that "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (id., subd. (c)). A cause of action "has no merit" if one or more of the elements of the cause of action cannot be established or an affirmative defense to the cause of action can be established. (Id., subd. (o).)
Thus, the moving defendant has the ultimate burden of persuasion that one or more elements of the cause of action at issue "cannot be established" or that "there is a complete defense to the cause of action." (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849, 850, 853-854.) In attempting to achieve this goal, the defendant has the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, at p. 850; Swigart, supra, 13 Cal.App.5th at p. 536.) If the defendant meets this burden, then the burden of production shifts to the plaintiff to establish the existence of a triable issue of material fact. (Aguilar, at pp. 850-851; Swigart, at p. 536.)
III.
DISCUSSION
A claim against a governmental entity like the District relating to a tort cause of action must be presented "not later than six months after the accrual of the cause of action." (Gov. Code, § 911.2, subd. (a).) A cause of action based on childhood sexual abuse generally accrues at the time of the alleged molestation. (Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 910 (Rubenstein); Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 210 (Shirk). ) " 'Accrual of the cause of action for purposes of the government claims statute[, (Gov. Code, § 810 et seq.),] is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants.' " (Rubenstein, at p. 906, citing Gov. Code, § 901.)
The doctrine of delayed discovery is a judicially created equitable policy by which the date of accrual of a cause of action is postponed until the claimant has actual or constructive knowledge of certain facts giving rise to the claim (Rubenstein, supra, 3 Cal.5th at pp. 910-911) and may apply in cases involving childhood sexual abuse claims (see, e.g., J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1222; S.M., supra, 184 Cal.App.4th at p. 717; V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 515-516; Curtis T. v. County of Lost Angeles (2004) 123 Cal.App.4th 1405, 1422-1423). As a related concept in minors' molestation cases, "a public entity may be estopped from asserting the limitations of the claims statute[, (Gov. Code, § 810 et seq.),] where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act." (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445; see, e.g., J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323, 333; Doe v. Bakersfield City School Dist. (2006) 136 Cal.App.4th 556, 567; V.C., supra, 139 Cal.App.4th at pp. 516-517.)
On appeal, Plaintiff presents two arguments in her effort to establish that the trial court erred in concluding as a matter of law that Plaintiff's potential claim against the District accrued in 2003: (1) under the delayed discovery doctrine, Plaintiff's claim against the District did not accrue until Plaintiff appreciated the wrongfulness of the teacher's conduct, and given the evidence in the record, there is a triable issue of material fact as to the date she first appreciated the wrongfulness; and (2) even if Plaintiff's claim against the District accrued in 2003, under the equitable estoppel doctrine, the evidence in the record establishes a triable issue of material fact as to whether, had Defendant promptly filed the appropriate government tort claim with the District in 2012, the District would have been precluded from asserting 2003 as the accrual date.
As we will explain, Plaintiff did not meet her burden of establishing that Defendant failed to make the initial prima facie showing of the nonexistence of a triable issue of material fact as to the 2003 date of accrual. As we will further explain, we do not reach the merits of Plaintiff's responsive arguments, because Plaintiff forfeited appellate review of them by failing to raise the doctrines of either delayed discovery or equitable estoppel in the trial court.
A. Plaintiff Did Not Establish That Defendant Failed to Meet His Initial Burden
In her opening brief on appeal, Plaintiff does not challenge the sufficiency of Defendant's initial prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850; Swigart, supra, 13 Cal.App.5th at p. 536.) In her reply brief on appeal, though, Plaintiff suggests that, because she alleged in her complaint that she " 'did not understand the significance of what was done to her,' " the burden was on Defendant "to negate an element of Plaintiff's claim as a matter of law"; and because Defendant failed to do so, "the burden never shifted to Plaintiff" to oppose the motion. While that may be an accurate statement of summary judgment procedural law, by raising a substantive argument like this for the first time in a reply, however, Plaintiff forfeited appellate consideration of its application here. (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 (Varjabedian) ["Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant."]; Padron v. Watchtower Bible and Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1267 (Padron) ["Any new substantive arguments raised by [an appellant] in its reply brief are deemed forfeited."].)
In any event, even if we were to reach the merits of the argument, we disagree with Plaintiff's suggestion that Defendant did not meet his initial burden. We acknowledge that, where, as here, a complaint anticipates an affirmative defense (the claim accrued in 2003) and pleads facts to avoid the defense (Plaintiff "did not understand the significance of what was done to her"), the facts avoiding the defense are "material," and the moving defendant has the initial burden to refute the allegations. (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.) In the present case, however, Defendant met his initial burden.
Initially, we note that Plaintiff did not plead any facts that Defendant could dispute, only the conclusory allegation that she did not understand the significance of what was done to her. Nonetheless, the record shows that, as part of the initial showing in support of his motion, Defendant presented and relied on Plaintiff's testimony that, in 2003 when the teacher asked Plaintiff to sit on his lap, she felt "scared and uncomfortable; like weak, gross." This evidence supports the responsive argument that, in 2003, Plaintiff did appreciate the significance of what was done to her—which, under the standard for the accrual of a claim for sexual abuse, meant that Plaintiff's claim accrued in 2003. (Rubenstein, supra, 3 Cal.5th at p. 910; Shirk, supra, 42 Cal.4th at p. 210 [childhood sexual abuse claim generally accrues at the time of the alleged molestation].)
We reject any suggestion that, after accrual of the cause of action, the time in which to file a government claim was tolled or otherwise extended. While a statute or equitable doctrine may " 'extend[] the time during which an individual may commence a cause of action alleging childhood sexual abuse, it does not extend the time for accrual of that cause of action.' " (Rubenstein, supra, 3 Cal.5th at p. 911.) Our Supreme Court has distinguished between "statutes that postpone the accrual date for an action and statutes that temporarily suspend the running of a statute of limitations without affecting the accrual date." (Id. at p. 910.) Here the trigger of the sixth-month period in which to file the applicable government claim is "the accrual of the cause of action." (Gov. Code, § 911.2, subd. (a).) Also here, as we explained at footnote 17, ante, Defendant's initial evidentiary showing as to the date of accrual sufficiently established the nonexistence of a triable issue of material fact in response to Plaintiff's generic allegation that she did not appreciate the significance of what the teacher had done until years later.
For these reasons, Plaintiff did not meet her burden on appeal of establishing that Defendant failed to meet his initial burden on summary judgment.
B. Plaintiff Did Not Meet Her Responsive Burden
Defendant's initial factual showing was that Plaintiff's potential cause of action against the District accrued at the time of the alleged molestation in 2003, from which Defendant argued that Plaintiff's claim was time-barred before he had been contacted in 2012. Plaintiff's response in the trial court was: Since Defendant had presented an alternative argument based on a March 2012 accrual date, "the accrual date of Plaintiff's original claim is in dispute"; and "[a]ny dispute over the accrual is a dispute that must be decided by the fact-finder." We disagree.
Defendant's presentation of an alternative argument based on anticipating that Plaintiff would propose an alternative accrual date in her opposition is not, as Plaintiff characterized it, "a dispute over the accrual." It is merely Defendant's acknowledgement that Plaintiff may suggest a different accrual date, which Defendant followed with an explanation of the reason why he would still be entitled to summary judgment. In fact, however, as Defendant persuasively argued in his reply in the trial court, by her opposition Plaintiff did not raise a triable issue of material fact as to 2003 date of accrual, because: "Plaintiff summarily proffers that her claim accrued in March 2012 without any factual background, statutory basis, or discussion of the applicable law."
Notably, in her opening brief on appeal, Plaintiff does not repeat this trial court argument. Instead, she presents two lengthy arguments: one based on delayed discovery which, if proven, would result in an accrual of the cause of action at a date later than the alleged abuse; and one based on equitable estoppel which, if proven, would preclude the District from asserting as a defense the limitations of the government tort claims statute. However, because Plaintiff did not raise these issues, suggest these issues, or even imply these issues in the trial court with the requisite citations to evidence and legal authorities, on this record she forfeited appellate review of these issues.
A forfeiture is the loss of a right by failing to timely assert the right. (Reid, supra, 50 Cal.4th at p. 521, fn. 3.) Applying this concept to the theories and arguments raised for the first time in appellate briefs is not a new concept to our Supreme Court: " 'A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.' " (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12, quoting Ernst v. Searle (1933) 218 Cal. 233, 240-241.) This principle, based on these same reasons, applies in summary judgment proceedings. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29 (North Coast Business Park) [permitting a change of theory on appeal from the grant of a defense summary judgment would be "manifestly unjust to the opposing parties, unfair to the trial court, and contrary to judicial economy"].) Indeed, an appellate court "generally will not consider an argument 'raised in an appeal from a grant of summary judgment . . . if it was not raised below . . . .' " (Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335 (Noe).)
For example, in North Coast Business Park, supra, 17 Cal.App.4th 22, the owner of a commercial complex noticed a cracked floor slab and hired a civil engineer who advised that roof drainage had discharged onto the existing fill soil at the top of a retaining wall and that inadequate soil drainage caused the roof runoff to damage the retaining wall. (Id. at pp. 25-26.) The engineer recommended that the owner contact the designer of the retaining wall to ensure the ongoing stability of the wall and to replace the eroded backfill around the wall. (Ibid.) In the resulting construction defect lawsuit, the trial court granted summary judgment in favor of the cross-defendant grading subcontractor on the basis that, because the engineer's report gave notice of soils-related defects, the owner's claims against the grading subcontractor were barred by the applicable statute of limitations. (Id. at pp. 26-27.) On appeal, the owner argued that, regardless what was known about the defect in the retaining wall, the owner only recently had discovered a different alleged defect—namely, the design and construction of the footings—and the date of the discovery of that defect raised a triable issue of fact as to whether the statute of limitations had run as to the grading subcontractor. (Id. at p. 28.) On this record, we affirmed the grant of summary judgment, in part on the following basis:
"The difficulty with [the owner]'s claim is that this issue was never raised below. No mention of 'defective footings' was made in [the owner]'s points and authorities filed in opposition to the summary judgment motion . . . ." (Id. at p. 28)

Even if facts related to the allegedly defective footings were in the record, the owner's failure to bring the facts and related argument to the attention of the trial court was fatal to the owner's related argument:
"In the proceedings below, [the owner] raised neither the fact of a different defect nor the theory that such defect was the basis for its claim. That the fact could have been found in the filed documents is of no value, because this would have imposed on the trial court the impossible burden of determining both the existence and significance of facts unmentioned by the parties. We will not place on the trial court the burden of conducting a search for facts which counsel failed to bring out, nor can we attribute a level of prescience to the trial court which counsel lacked. Instead, we adhere to the familiar rule that 'possible theories not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal.' " (Id. at p. 31, fn. omitted.)

(See also Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 842 [When an argument is not raised in opposition to a summary judgment motion, the trial court is "fully warranted" in concluding that the moving defendant's evidence was not disputed.].)
We are aware that, at times, appellate courts apply an exception to this forfeiture rule where, on appeal, " 'a question of law only is presented on the facts appearing in the record.' " (Ward v. Taggart (1959) 51 Cal.2d 736, 742, quoting Panopulos v. Maderis (1956) 47 Cal.2d 337, 340-341 (Panopulos).) However, this exception is not to be applied where "the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented" during the trial court proceedings; in such circumstances, "the opposing party should not be required to defend against it on appeal." (Panopulos, at p. 341.) Indeed, in consideration of this latter concern, the exception will be applied only where the existing facts in the record " 'could not be altered by the presentation of additional evidence.' " (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1187 (Husman) [appeal from grant of defense summary judgment]; see Noe, supra, 237 Cal.App.4th at p. 335 [forfeiture rule applies in summary judgment appeal if new argument "requires consideration of new factual questions"].)
Given this standard, the exception to the general rule of forfeiture does not apply here. Certainly, this appeal presents a question of law—namely, whether the trial court properly applied the summary judgment statute, section 437c. (Aguilar, supra, 25 Cal.4th at p. 850.) However, Plaintiff's theories on appeal regarding delayed discovery and equitable estoppel most definitely "contemplate[] . . . factual situation[s] the consequences of which are open to controversy and were not put in issue or presented" to the trial court (Panopulos, supra, 47 Cal.2d at p. 341), and the facts in the record on which Plaintiff belatedly relies most certainly could " 'be altered by the presentation of additional evidence' " (Husman, supra, 12 Cal.App.5th at p. 1187). For example, and not by way of limitation, had Plaintiff cited and relied in the trial court on the evidence she cites and relies on in her appeal, there is the possibility that Defendant could have obtained, cited and relied on additional evidence that could have " 'altered' " the significance of Plaintiff's factual showing. (See, e.g., D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 ["when discovery has produced an admission or concession on the part of the party opposing summary judgment" that is inconsistent with declarations submitted in opposition, the court may disregard opposing party's opposing declaration testimony]; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 593 [party opposing summary judgment did not establish triable issue of fact by relying on supporting declaration testimony that contradicted opposing party's interrogatory responses].)
By failing to cite evidence or legal authorities in the trial court that might support a delayed accrual or an estoppel by which the District would be precluded from arguing a 2003 accrual, Plaintiff forfeited the opportunity to cite such evidence or to provide such legal authority on appeal. On this record, therefore, Plaintiff did not meet her burden on appeal of establishing that, in the trial court, she met her responsive burden of demonstrating a triable issue of material fact.
DISPOSITION
The judgment is affirmed. The parties shall bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)


IRION, J.

WE CONCUR:




BENKE, Acting P. J.




DATO, J.