Filed 11/8/17
Opinion on rehearing
                              CERTIFIED FOR PUBLICATION

                  COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                  STATE OF CALIFORNIA



OREGON STATE UNIVERSITY,                      D075271

        Petitioner,                           (Super. Ct. No. 37-2016-00014529-CU-
                                              PO-CTL)
        v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

        Respondent;


GEORGE R. SUTHERLAND,

        Real Party in Interest.


        ORIGINAL PROCEEDINGS in mandate challenging an order of the Superior

Court of San Diego County overruling a demurrer. Eddie C. Sturgeon, Judge. Petition

granted in part.

        Noonan Lance Boyer & Banach, Ethan T. Boyer; Higgs Fletcher & Mack and

John Morris for Petitioner.

        No appearance for Respondent.

        Marc D. Adelman; Dentons US and Charles A. Bird for Real Party in Interest.
                                              I

                                     INTRODUCTION

       Oregon State University (Oregon State) petitions for a peremptory writ of mandate

directing the superior court to vacate an order overruling Oregon State's demurrer to

George A. Sutherland's first amended complaint (complaint) and to enter a new order

sustaining the demurrer without leave to amend. Oregon State contends the challenged

order violates the federal Constitution's full faith and credit clause (Clause) (U.S. Const.,

art IV, § 1) because the complaint does not and cannot allege Sutherland's compliance

with the Oregon Tort Claims Act's 180-day claims notice provision. (Or. Rev. Stat. Ann.

§ 30.275, subds. (1), (2)(b).)1 Sutherland counters the Clause does not require his

compliance with the provision because requiring compliance would violate California's

public policy by effectively depriving him of a remedy against Oregon State. Sutherland

alternatively contends, if the Clause does require compliance with the provision, he can

amend the complaint to plead facts showing compliance.2



1       The provision states, "(1) No action arising from any act or omission of a public
body or an officer, employee or agent of a public body ... shall be maintained unless
notice of claim is given as required by this section. [¶] (2) Notice of claim shall be given
within the following applicable period of time[:] … [¶] ... [¶] (b) ...within 180 days after
the alleged loss or injury." (Or. Rev. Stat. Ann. § 30.275, subds. (1), (2)(b).)

2      Sutherland raised this contention for the first time in a petition for rehearing,
which, while neither advisable nor preferable, is allowable in some circumstances. (See
Hayes v. Risk (1967) 255 Cal.App.2d 613, 628; but see Reynolds v. Bement (2005) 36
Cal.4th 1075, 1091–1092, abrogated on another point in Martinez v. Combs (2010) 49
Cal.4th 35, 62–66; Regents of University of California v. Superior Court (2013) 220
Cal.App.4th 549, 570, fn. 15; Cal. Coastal Com. v. Superior Court (1989) 210
Cal.App.3d 1488, 1501, fn. 10.)
                                              2
       We agree the superior court should have sustained Oregon State's demurrer

because the Oregon Tort Claims Act's claims notice provision is entitled to full faith and

credit in California. The provision does not conflict with or violate California's public

policy and declining to give the provision full faith and credit would evince an

impermissible policy of discriminatory hostility to the provision. As Sutherland has

belatedly demonstrated he can plead facts showing compliance with the provision, we

grant the petition in part and direct the superior court to vacate its order overruling

Oregon State's demurrer and enter a new order sustaining the demurrer with leave to

amend.

                                              II

                                      BACKGROUND

       Sutherland's complaint asserts causes of action for negligence and negligent

misrepresentation against Oregon State.3 The complaint alleges Sutherland was severely

injured when a crane he was operating tipped over. At the time, he was using the crane to

load a stack container owned by Oregon State onto a vessel owned by his employer, the

Scripps Institution of Oceanography, a department of the University of California, San

Diego. The stack container's weight was not displayed on its exterior and was not

accurately recorded on the bill of lading provided by Oregon State.




3      The complaint asserts other negligence-related causes of action against other
parties. Those parties and causes of action are not before us in this proceeding.

                                              3
       Oregon State demurred to the complaint, asserting the complaint fails to state facts

sufficient to constitute claims for negligence and negligent misrepresentation against

Oregon State because the complaint does not and cannot allege compliance with the

Oregon Tort Claims Act's claims notice provision. Oregon State argued the Clause

requires such compliance.4

       Sutherland opposed the demurrer, arguing Oregon State lost the benefits and

protections of the Oregon Tort Claims Act when Oregon State consciously decided to

engage in activities in California causing injury to a California resident. Sutherland also

argued applying the Oregon Tort Claims Act, particularly its claims notice provision,

would violate California's public policy of protecting the legal rights of its citizens and

ensuring they are fully compensated by injuries caused by others.

       Oregon State countered that applying the Oregon Tort Claims Act's claims notice

provision would not undermine California's public policy because California's

Government Claims Act (Gov. Code, § 810 et seq.) contains similar claims notice

provisions (see Gov. Code, §§ 911.2, subd. (a), 945.4)5 and both acts share similar




4     Oregon State also argued the comity doctrine requires such compliance; however,
Oregon State is not relying on the comity doctrine to support its position in this writ
proceeding.

5      Government Code section 911.2, subd. (a) provides: "A claim relating to a cause
of action ... for injury to person ... shall be presented ... not later than six months after the
accrual of the cause of action."

       Government Code section 945.4 provides: "[N]o suit for money or damages may
be brought against a public entity on a cause of action for which a claim is required to
                                                4
governmental purposes. Conversely, not applying the Oregon Tort Claims Act's claims

notice provision would be hostile to and discriminate against Oregon in violation of the

Clause.

       The court overruled the demurrer. The court acknowledged California and Oregon

have similar government claims notice provisions, but found the Oregon Tort Claims Act

has a damages cap and California's Government Claims Act does not.6 The court further

found California's public policy of protecting people injured within its borders would not

be promoted by applying the Oregon Tort Claims Act because applying it would only

benefit Oregon's public fisc and effectively deprive Sutherland of a remedy against

Oregon State.

                                             III

                                       DISCUSSION

                                             A

       We review a decision to overrule a demurrer de novo. (Green Valley Landowners

Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 432.) The federal Constitution

provides, "Full Faith and Credit shall be given in each State to the public Acts, Records,


presented ... until a written claim therefor has been presented to the public entity and has
been acted upon by the board, or has been deemed to have been rejected by the board."

6       The Oregon Tort Claims Act's damages cap provision (Or. Rev. Stat. Ann.
§ 30.271) is distinct from its claims notice provision. The parties have not provided nor
have we located any authority requiring both provisions to be entitled to full faith and
credit in order for either provision to be entitled to full faith and credit. As the claims
notice provision is the only provision directly before us in this writ proceeding, we
confine our analysis to this provision.

                                              5
and judicial Proceedings of every other State." (U.S. Const., art. IV, § 1; Franchise Tax

Bd. v. Hyatt (2003) 538 U.S. 488, 494 [123 S.Ct. 1683, 155 L.Ed.2d 702] (Hyatt I).) A

statute is a public act under this provision. (Franchise Tax Bd. v. Hyatt (2016) ___ U.S.

___ [136 S.Ct. 1277, 1281, 194 L.Ed.2d 431] (Hyatt II).) Consequently, the Oregon Tort

Claims Act, including its claims notice provision, is entitled to full faith and credit in

California.

       However, the entitlement to full faith and credit is not absolute. On subject

matters in which California is competent to legislate, the Clause does not require

California to apply another state's statute if the other state's statute reflects a conflicting

and opposing policy. (Hyatt I, supra, 538 U.S. at pp. 494, 496; Hyatt II, supra, 136 S.Ct.

at p. 1281.) Additionally, " ' "for [California's] substantive law to be selected in a

constitutionally permissible manner, [California] must have a significant contact or

significant aggregation of contacts, creating state interests, such that choice of its law is

neither arbitrary nor fundamentally unfair." ' " (Hyatt I, at pp. 494–495.)

       California is undoubtedly competent to legislate on the subject matter of personal

injuries to one of its citizens within its borders. (Hyatt I, supra, 538 U.S. at p. 494.)

California also has sufficient contacts to apply its substantive law in this case as

Sutherland was injured while working here. (Id. at p. 495, citing Carroll v. Lanza (1955)

349 U.S. 408, 413 [75 S.Ct. 804, 99 L.Ed. 1183] ["The State where the tort occurs

certainly has a concern in the problems following in the wake of the injury"]; Pac.

Emplrs Ins. Co. v. Indus. Accident Comm'n (1939) 306 U.S. 493, 503 [59 S.Ct. 629, 83



                                                6
L.Ed. 940] ["Few matters could be deemed more appropriately the concern of the state in

which [an] injury occurs or more completely within its power"].)

       Nonetheless, applying the Oregon Tort Claims Act's claim notice provision would

not conflict with or violate California's public policy as California's Government Claims

Act has similar claims notice provisions (See Gov. Code, §§ 911.2, subd. (a), 945.4).

Moreover, both acts' provisions serve similar purposes, including allowing investigation

of claims while evidence is fresh and available, facilitating settlement of meritorious

claims, and addressing the circumstances giving rise to the claims. (Compare Dunn v.

City of Milwaukie (2015) 270 Or.App. 478 [348 P.3d 301, 307]; Robinson v. Shipley

(1983) 64 Or.App. 794 [669 P.2d 1169, 1171]; with Westcon Construction Corp. v.

County of Sacramento (2007) 152 Cal.App.4th 183, 200; Nelson v. Superior Court (2001)

89 Cal.App.4th 565, 573.) Further, both acts' provisions function similarly by precluding

a personal injury claimant from maintaining an action against a covered public entity

unless the claimant has provided notice of the claim to the public entity within six months

of the claim's accrual. (Compare Or. Rev. Stat. Ann. § 30.275, subds. (1), (2)(b), with

Gov. Code, §§ 911.2, subd. (a), 945.4.) Lastly, both acts' provisions apply to public

colleges and universities.7 (Compare Or. Rev. Stat. Ann. §§ 174.109, 174.117, subd.

(1)(i), 30.260, subd. (4)(a), with Gov. Code, § 811.2.)



7      California's Government Claims Act applies to the Trustees of the California State
University and to community college districts, but "does not apply to claims against the
Regents of the University of California." (Gov. Code, § 905.6; see id., § 911.2.) The
exemption for the University of California does not represent a conflicting public policy
for purposes of our full faith and credit analysis. Rather, the exemption reflects the
                                             7
       Even if the Oregon Tort Claims Act's claims notice provision did conflict with or

violate California's public policy, California may only decline to apply the provision on

this ground as long as the decision to do so does not evince a policy of discriminatory

hostility to the provision. (Hyatt II, supra, 136 S.Ct. at p. 1281.) Here, a decision

declining to apply the provision would evince a policy of discriminatory hostility to the

provision because the decision would create a special rule allowing a suit to proceed

against Oregon State under circumstances that would preclude a comparable suit against

a comparable California public entity. (Id. at p. 1282.) While California has a public

policy interest in ensuring adequate recourse for injuries to its citizens, the United States

Supreme Court has determined this interest is not sufficient to justify disregarding the

University of California's unique constitutional status, which allows it to function "in
some ways as an independent sovereign." (Miklosy v. Regents of University of California
(2008) 44 Cal.4th 876, 890.) As the California Supreme Court has explained, " 'The
California Constitution establishes the Regents [i.e., the University of California] as a
"public trust ... with full powers of organization and government." (Cal. Const., art. IX,
§ 9, subd. (a).) [The Supreme Court has] observed that "Article IX, section 9, grants the
[R]egents broad powers to organize and govern the university and limits the Legislature's
power to regulate either the university or the [R]egents. This contrasts with the
comprehensive power of regulation the Legislature possesses over other state agencies."
[Citation.] This grant of constitutional power to the University includes the grant of
quasi-judicial powers, a view that is generally accepted in [California] jurisprudence.
[Citations.] [¶] The Regents may also exercise quasi-legislative powers, subject to
legislative regulation. Indeed, "policies established by the Regents as matters of internal
regulation may enjoy a status equivalent to that of state statutes." [Citations.] The
authority granted the Regents includes "full powers of organization and government,
subject only to such legislative control as may be necessary to insure compliance with the
terms of the endowment of the University and the security of its funds." [Citation.]
Thus, "[t]he Regents have been characterized as 'a branch of the state itself' [citation] or 'a
statewide administrative agency' [citation]" [citation], and "[i]t is apparent that the
Regents as a constitutionally created arm of the state have virtual autonomy in self-
governance" [citation].' " (Miklosy v. Regents of University of California, supra, at
pp. 889–890.)

                                              8
Clause. (See id. at p. 1282.) Consequently, we conclude the superior court erred by

overruling Oregon State's demurrer.8

                                              B

       This conclusion does not end our inquiry. We must further determine whether

Sutherland has demonstrated a reasonable possibility he can cure the pleading defect by

amendment. (Centinela Freeman Emergency Medical Associates v. Health Net of

California, Inc. (2016) 1 Cal.5th 994, 1010; Green Valley Landowners Assn. v. City of

Vallejo, supra, 241 Cal.App.4th at p. 432.)

       To comply with the Oregon Tort Claims Act's claims notice provision, a plaintiff

must file a claim or a complaint within 180 days after his injury. (Or. Rev. Stat. Ann.

§ 30.275, subds. (1), (2)(b), (3)(c).) The 180-day period does not begin to run until the

plaintiff has had reasonable opportunity to discover his injury and the identity of the

responsible party. (Doe v. Lake Oswego Sch. Dist. (2013) 353 Ore. 321 [297 P.3d 1287,

1292]; Adams v. Oregon State Police (1980) 289 Ore. 233 [611 P.2d 1153, 1156].)

" '[A]n "injury" is discovered when a plaintiff knows or should have known of the

existence of three elements: (1) harm; (2) causation; and (3) tortious conduct.' " (Turner

v. State (2015) 270 Ore.App. 353 [348 P.3d 253, 257] (Turner).)

       "Application of the discovery rule gives a plaintiff a reasonable opportunity to

become aware of his or her claim. [Citation.] The point in time when an investigation


8      Footnote 4 in Hall v. University of Nevada (1972) 8 Cal.3d 522, 526 (Hall), upon
which Sutherland relies, does not alter our conclusion. The Hall case predates both the
Hyatt I and Hyatt II cases and does not discuss, much less apply, the Clause. It,
therefore, offers no relevant guidance for this writ proceeding.
                                              9
would have disclosed facts that made a reasonable person aware of a substantial

possibility of injury marks the beginning of the limitations period—not the earlier point

in time when plaintiff first had a duty to investigate." (Turner, supra, 348 P.3d at

pp. 257–258, italics added.)

       "Generally speaking, the factual determination of when a reasonable person would

have been aware of the substantial possibility of the elements of a claim is a jury

question." (Turner, supra, 348 P.3d at p. 258.) "A court cannot decide that question as a

matter of law unless the only conclusion that a reasonable trier of fact could reach is that

the plaintiff knew or should have known the critical facts at a specified time." (Doe v.

Lake Oswego Sch. Dist., supra, 297 P.3d at p. 1295.)

       Here, relevant to the discovery rule, Sutherland's operative complaint alleges, on

the morning of the accident, Sutherland was presented with bills of lading showing

Oregon State had two stack containers, each weighing 14,500 pounds. Sutherland

successfully loaded the first stack container, but when he started loading the second stack

container, which did not have its weight marked on its side, he noticed it felt much

heavier than the first one. He tried to return it to the ground when the crane tipped over

and crushed him.

       These allegations indicate Sutherland had knowledge on the day of the accident

that conduct by Oregon State may have caused him harm. However, "mere knowledge

that governmental conduct caused harm is insufficient to commence the [180-day claims

notice period]; the plaintiff must also reasonably know the tortious nature of the



                                             10
governmental conduct—that the conduct was negligent or intentionally harmful."

(Turner, supra, 348 P.3d at p. 258.)

       Sutherland contends he can add allegations to the complaint indicating (1) he was

not allowed access to the crane or to witness interviews until after the conclusion of

proceedings before the California Department of Industrial Relations Division of

Occupational Safety and Health; (2) once he had access to this information, he found

evidence suggesting the second stack container was overweight because Oregon State

caused or allowed it to take on water; (3) this was his first notice of the tortious nature of

Oregon State's conduct; and (4) he filed his complaint within 180 days of learning this

information. Oregon State denies the truth of these allegations and will undoubtedly

vigorously contest them at an appropriate point in the superior court. Nonetheless, for

purposes of determining whether Sutherland should be granted leave to amend the

complaint, these allegations satisfy Sutherland's burden of demonstrating a reasonable

possibility he can cure the complaint's pleading defect by amendment.




                                              11
                                             IV

                                      DISPOSITION

       Let a peremptory writ of mandate issue directing the superior court to vacate its

order dated January 18, 2017, overruling Oregon State's demurrer to Sutherland's first

amended complaint and enter a new order sustaining the demurrer with leave to amend.

The stay issued by this court on March 2, 2017, is vacated. Oregon State is awarded its

costs in this proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A), (2).)




                                                                       McCONNELL, P. J.

WE CONCUR:



BENKE, J.



HALLER, J.




                                             12
