Filed 9/11/13 Oakes v. Loppnow CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



DAVID OAKES,                                                         B243251

         Plaintiff and Appellant,                                    (Los Angeles County Super. Ct.
                                                                      No. LC092837)
         v.

JEFFREY GRAY LOPPNOW,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles 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 Loppnow1 in this personal injury action.
Oakes contends that: 1) 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


       1Because more than one party shares the last name Loppnow, we will refer to
them individually by their first names.

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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


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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.” 2 The applicable statute of limitations for a 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


       2 Code 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.

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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.




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       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.]” (Mysel v. Gross (1977) 70 Cal.App.3d 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 Civil 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.”
       “The failure to properly plead the statute of limitations waives the defense.
[Citation.]” (Martin v. Van Bergen (2012) 209 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.]” (Brown v.
World Church, supra, 272 Cal.App.2d at p. 691.)
       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.”


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(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.


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