Filed 3/27/14 Macasa v. Dole Food Co. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits 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
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

ROQUE GARCIA MACASA, JR., et al.,                                       B245138

                   Plaintiffs and Appellants,                           (Los Angeles County
                                                                        Super. Ct. No. BC467134)
         v.

DOLE FOOD COMPANY, INC., et al.,

                   Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Jane L.
Johnson, Judge. Affirmed.
         Edelberg & Espina and Claire N. Espina for Plaintiffs and Appellants.
         Gibson, Dunn & Crutcher and Andrea E. Neuman, Thomas A. Manakides,
Theodore J. Boutrous, Jr. and William E. Thomson for Defendants and Respondents Dole
Food Company, Inc., Dole Fresh Fruit Company, Standard Fruit Company, and Standard
Fruit and Steamship Company.
         Hinshaw & Culbertson and Frederick J. Ufkes for Defendant and Respondent Del
Monte Fresh Produce N.A., Inc.
         Filice & Kayhan, Gennaro A. Filice III and Paul R. Johnson for Defendant and
Respondent The Dow Chemical Company.
         Steptoe & Johnson, Lawrence P. Riff and Jason Levin for Defendants and
Respondents Shell Oil Company, Shell Chemical LP, and Shell Agricultural Chemical
Co.
       Barg Coffin Lewis & Trapp, Stephen C. Lewis, Donald Sobelman, and
Christopher D. Jensen for Defendant and Respondent Occidental Chemical Corporation.
                           _____________________________
       Plaintiffs and appellants Roque Garcia Macasa, Jr., et al. (plaintiffs) appeal from
the judgment of dismissal entered after the trial court sustained, without leave to amend,
demurrers filed by defendants and respondents Dole Food Company, Inc., Dole Fresh
Fruit Company, Standard Fruit Company, Standard Fruit and Steamship Company
(collectively, Dole) and by Del Monte Fresh Produce N.A., Inc., Shell Oil Company,
Shell Chemical LP, Shell Agricultural Chemical Co., The Dow Chemical Company, and
Occidental Chemical Corporation (collectively, with Dole, defendants) to the first
amended complaint. We affirm the judgment.
                                     BACKGROUND
       Plaintiffs are 2,936 Philippine residents who claim they sustained injury as the
result of exposure to the pesticide dibromochloropropane (DBCP) in the 1970’s and early
1980’s while working in and around banana farms in the Philippines. Defendants
manufactured, distributed, sold, or used DBCP products that allegedly caused plaintiffs’
injuries.
The 1998 Philippine action
       On October 10, 1998, the Davao Banana Plantation Workers Association of
Tiburcia, Inc. (DBPWATI) filed an action against defendants in the Philippines, alleging
that DBPWATI’s 20,981 members were rendered sterile as a result of defendants’
negligence in the production and use of DBCP (the Philippine action). DBPWATI
alleged that its “members were exposed to DBCP, in the 1970’s up to early 1980’s” while
working on or near banana farms operated by Dole and others.
       On March 13, 2000, DBPWATI filed a second amended complaint that contained
virtually identical factual allegations but increased the number of plaintiffs to 34,868.
Several defendants moved to dismiss the original and amended complaints on the ground
that they were improperly served, depriving the court of personal jurisdiction. The
Philippine Regional Trial Court denied the motions to dismiss.


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       On October 3, 2002, the Philippine Court of Appeals set aside the Regional Trial
Court’s orders and dismissed DBPWATI’s second amended complaint without prejudice
for lack of personal jurisdiction based on invalid service of summons. On October 12,
2004, the Court of Appeals denied DBPWATI’s motion for reconsideration of the
October 3, 2002 decision.
       On August 28, 2008, the Philippine Supreme Court denied DBPWATI’s petition
for review of the Court of Appeals decision, and on April 13, 2009, the Philippine
Supreme Court issued an order denying “with FINALITY” DBPWATI’s motion for
reconsideration of its order denying review.
The instant lawsuit
       On August 8, 2011, plaintiffs filed this action in Los Angeles Superior Court on
behalf of 2,432 Philippine plaintiffs. On February 6, 2012, plaintiffs filed the operative
first amended complaint, adding 504 plaintiffs.
       In the first amended complaint, plaintiffs allege that “at all times relevant hereto,”
they were “residents of [the] Philippines.” Plaintiffs further allege that they filed the
Philippine action on October 10, 1998, “alleging the same identical claims as are alleged
in this lawsuit” and that the Philippine action concluded “on or about April 13, 2009,”
when the Philippine Supreme Court denied their motion to reconsider its earlier ruling
denying review of the Philippine Court of Appeals dismissal of DBPWATI’s second
amended complaint.
       Plaintiffs allege that the trial court had jurisdiction over the matter based on the
fact that defendant Dole had its principal place of business in Los Angeles, California and
that Dole and all of the other defendants conduct business in California.
       Plaintiffs further allege that the Philippine action was timely filed, that defendants
have suffered no prejudice by the filing of the instant action because the claims are
identical to those asserted in the Philippine Action, and that “[p]laintiffs acted in all
reasonableness and good faith in pursuing their claims in filing the lawsuit in the
Philippines timely within the statutory periods.”



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       Plaintiffs also allege that because they “reside in outlying farms in Davao,
Philippines,” have low education levels, and speak only their native dialects, “it was
impossible for Plaintiffs to have any suspicion of wrongdoing.” Plaintiffs further allege
they had no way of knowing of their injuries “until proper diagnosis by a doctor” because
“sterility is an injury that is not easily discovered.”
       Defendants filed demurrers in which they argued that plaintiffs’ claims were time-
barred under California’s two-year statute of limitations; as a matter of law, plaintiffs
cannot adequately plead that the filing of their complaint in California was in “good faith
and reasonable,” a necessary element of equitable tolling; plaintiffs cannot rely on
California’s equitable tolling doctrine because they are all residents of the Philippines and
equitable tolling is available only to California residents; and plaintiffs failed to allege the
time and manner of discovery of their claims, precluding application of the discovery rule
and preventing the court from determining whether the statute of limitations had run prior
to plaintiffs’ filing of the Philippine action in 1998.
       Plaintiffs opposed the demurrers, arguing that their claims were not time-barred
because the first amended complaint adequately alleged all of the elements of equitable
tolling. Plaintiffs further argued that equitable tolling is not limited to California
residents, section 361 of the Code of Civil Procedure does not apply to plaintiffs’ claims,
the discovery rule does not apply, and the Philippine law on statute of limitations applies.
       After a hearing at which the matter was taken under submission, the trial court
issued a written ruling sustaining the demurrers without leave to amend. The trial court
concluded that plaintiffs’ claims were time-barred as a matter of law for three reasons.
First, the trial court held that “the doctrine of equitable tolling is limited only to
California residents” and that plaintiffs, as residents of the Philippines, could not claim
the benefits of the doctrine. Second, the trial court ruled that even if equitable tolling
applied, “the tolling period would have ended, and the . . . two year statute would have
begun to run, when the Philippine Supreme Court denied, ‘with finality,’ the Plaintiffs’
Motion for Reconsideration on April 13, 2000.” The court thus concluded that “[t]he
statute ran on April 12, 2011,” four months before plaintiffs filed this action. Finally, the


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trial court ruled that in light of the judicially admitted two-year and four-month delay in
filing this action after the final decision of the Philippine Supreme Court, plaintiffs
“failed to allege facts to demonstrate their ‘good faith and reasonable conduct in filing the
second claim,’” as required to invoke equitable tolling.
       The trial court rejected plaintiffs’ argument that the Philippines statute of
limitations applied: “[T]here is no basis to conclude that the Philippines has a greater
interest in this litigation such that its statute of limitations, as opposed to California’s
statute of limitations, applies.” The trial court concluded that because it was “clear” that
the plaintiffs could not meet their burden of demonstrating how they could amend their
complaint to overcome these multiple hurdles, the demurrers would be sustained without
leave to amend.
       A judgment of dismissal was entered on September 25, 2012, and this appeal
followed.
                                        DISCUSSION
I. Standard of review
       “On appeal from a judgment dismissing an action after sustaining a demurrer
without leave to amend, the standard of review is well settled. The reviewing court gives
the complaint a reasonable interpretation, and treats the demurrer as admitting all
material facts properly pleaded. [Citations.] The court does not, however, assume the
truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be
affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’
[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff
has stated a cause of action under any possible legal theory. [Citation.] And it is an
abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows
there is a reasonable possibility any defect identified by the defendant can be cured by
amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-
967.) The legal sufficiency of the complaint is reviewed de novo. (Montclair
Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)



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II. Plaintiffs’ claims are time-barred under California law
       Under California law, a two-year limitations period applies to personal injury
claims, including claims for injury or illness based upon exposure to a hazardous material
or toxic substance. (Code Civ. Proc., §§ 335.1, 340.8.)1 Because plaintiffs knew of their
claims no later than October 1998, when they filed the Philippine action, their claims
would be time-barred, absent tolling or extension of the two-year statutory period.
Plaintiffs contend their claims are timely because the doctrine of equitable tolling applied
to suspend the limitations period while the Philippine action was pending.
       “Equitable tolling is a judge-made doctrine ‘which 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. [Citations.] . . . .
[¶] [T]he effect of equitable tolling is that the limitation period stops running during the
tolling event, and begins to run again only when the tolling event has concluded.”
(Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) To invoke equitable tolling, a
plaintiff must specifically plead facts establishing the following elements: “(1) timely
notice to defendants in filing the first claim; (2) lack of prejudice to defendants in
gathering evidence to defend against the second claim; and (3) good faith and reasonable
conduct by plaintiffs in filing the second claim. [Citations.]” (Downs v. Department of
Water & Power (1997) 58 Cal.App.4th 1093, 1100.) In determining whether the third
element -- good faith and reasonable conduct in filing the second claim -- courts in
California consider when the second claim was filed after the first claim. “[I]f a plaintiff


1       Code of Civil Procedure section 335.1 prescribes a two-year limitation period for
“[a]n action for assault, battery, or injury to, or for the death of, an individual caused by
the wrongful act or neglect of another.” Section 340.8, subdivision (a) states: “In any
civil action for injury or illness based upon exposure to a hazardous material or toxic
substance, the time for commencement of the action shall be no later than either two
years from the date of injury, or two years after the plaintiff becomes aware of, or
reasonably should have become aware of, (1) an injury, (2) the physical cause of the
injury, and (3) sufficient facts to put a reasonable person on inquiry notice that the injury
was caused or contributed to by the wrongful act of another, whichever occurs later.”


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delayed filing the second claim until the statute on that claim had nearly run, even after
crediting the tolled period, his conduct might be considered unreasonable. [Citation.]”
(Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 926.)
          Defendants argue that equitable tolling is available only to residents of California
and that plaintiffs cannot invoke the doctrine because they are all Philippine residents.
(See Hatfield v. Halifax (9th Cir. 2009) 564 F.3d 1177, 1189 [non-residents cannot rely
on equitable tolling doctrine to toll California statute of limitations].) Defendants further
argue that plaintiffs cannot allege good faith and reasonable conduct because they waited
more than two years after the Philippine action concluded before commencing the instant
action.
          We need not address the parties’ arguments as to whether plaintiffs, who are not
residents of California, may invoke the equitable tolling doctrine (see Hatfield v. Halifax,
supra, 564 F.3d at p. 1189), or whether they can adequately plead the filing of their
complaint was “in good faith and reasonable” (Collier, supra, 142 Cal.App.3d at p. 926),
because plaintiffs’ action is time-barred even if the doctrine of equitable tolling applied.
The facts alleged in the first amended complaint show that the instant action was filed
four months past the two-year limitations period, even if the statutory period was tolled
while the Philippine action was pending. Plaintiffs allege that on April 13, 2009, the
Philippine Supreme Court issued an order to “DENY . . . with FINALITY” their motion
for reconsideration of its earlier order denying discretionary review of the dismissal the
Philippine action. Even assuming the doctrine of equitable tolling applied, the statute of
limitations began to run again on April 13, 2009 -- the date of the Philippine Supreme
Court’s final order. (Lantzy v. Centex Homes, supra, 31 Cal.4th at p. 370.) The two-year
limitations period thus expired, at the very latest, on April 13, 2011 -- two years after the
Philippine Supreme Court’s April 13, 2009 order -- and four months before plaintiffs
commenced this action on August 8, 2011. The trial court accordingly did not err by
concluding that plaintiffs’ claims are time-barred under California law.




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III. The California statute of limitations applies
       Plaintiffs challenge the trial court’s ruling that California’s two-year statute of
limitations applies to their claims. They argue that Philippine law -- specifically, a four-
year statute of limitations -- applies. To resolve this choice of law issue, we apply the
governmental interest analysis.
       “[T]he question whether the relevant California statute of limitations (or statute of
repose) or, instead, another jurisdiction’s statute of limitations (or statute of repose)
should be applied in a particular case must be determined through application of the
governmental interest analysis that governs choice-of-law issues generally. [Citations.]”
(McCann v. Foster Wheeler LLC (2010) 48 Cal.4th 68, 87 (McCann).) The
governmental interest analysis involves three steps:
               “First, the court determines whether the relevant law of each of the
       potentially affected jurisdictions with regard to the particular issue in
       question is the same or different. Second, if there is a difference, the court
       examines each jurisdiction’s interest in the application of its own law under
       the circumstances of the particular case to determine whether a true conflict
       exists. Third, if the court finds that there is a true conflict, it carefully
       evaluates and compares the nature and strength of the interest of each
       jurisdiction in the application of its own law ‘to determine which state’s
       interest would be more impaired if its policy were subordinated to the
       policy of the other state’ [citation], and then ultimately applies “the law of
       the state whose interest would be more impaired if its law were not applied.
       [Citation.]”

(Kearney v. Solomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 107-108, quoting
Bernhard v. Harrah’s Club (1976) 16 Cal.3d 313, 320.)
       Under the first step of the governmental interest test, “[t]he party arguing that
foreign law governs has the burden to identify the applicable foreign law.” (Frontier Oil
Corp. v RLI Ins. Co. (2007) 153 Cal.App.4th 1436, 1465; Washington Mutual Bank v.
Superior Court (2001) 24 Cal.4th 906, 919 (Washington Mutual) [“the foreign law
proponent must identify the applicable rule of law in each potentially concerned state
and must show it materially differs from the law of California”].) If the foreign law




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proponent fails to identify the applicable foreign law, California law applies. (See
Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1468-1469.)
      Plaintiffs failed to meet their burden of identifying the Philippine statute of
limitations applicable to their claims. In the trial court below, plaintiffs requested
judicial notice of “a copy of the Philippine Statute of Limitation, Article 1146 of the
Civil Code of the Philippines.” The trial court denied the request, however, on the
ground that the document was unauthenticated. Plaintiffs do not appeal the trial court’s
denial of their request for judicial notice, nor do they seek judicial notice of any properly
authenticated Philippine statute in this appeal. There is accordingly no admissible
evidence in the record that the Philippine statute of limitations is four years, and
plaintiffs failed to meet their burden of establishing any conflict between Philippine and
California law. (Washington Mutual, supra, 24 Cal.4th at p. 919.)
      Even if there were admissible evidence that the Philippine statute of limitations
applicable to plaintiffs’ claims is longer than the two-year period accorded under
California law, plaintiffs failed to establish that the Philippines has an interest in
applying its statute or that the Philippine interest outweighs California’s interest in
applying its own laws in the circumstances presented here. “Statutes of limitation are
designed to protect the enacting state’s residents and courts from the burdens associated
with the prosecution of stale cases in which memories have faded and evidence has been
lost. [Citation.]” (Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 794
(Ashland).) “[S]tatutes of limitation also promote the early accrual of the defendant’s
right of formal discovery by requiring the plaintiff to file an action within a reasonable
time. [Citation.]” (Lewis v. Superior Court (1985) 175 Cal.App.3d 366, 375.)
      California’s interest in enforcing its statute of limitations is strong given the
circumstances presented here. Plaintiffs seek redress for injuries allegedly caused by
DBCP exposures that occurred 30 to 40 years ago, and defendants face the burden of
defending against claims involving faded memories and lost evidence. Defendant Dole
has its principal place of business in California and is entitled to the protections afforded
by the state against the burdens of litigating claims that accrued decades ago. (Ashland,


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supra, 129 Cal.App.3d at p. 794 [holding that “Kentucky has no interest in having its
statute of limitations applied because here there are not Kentucky defendants and
Kentucky is not the forum,” whereas “California courts and a California resident would
be protected by applying California’s statute of limitations because California is the
forum and the defendant is a California resident”].) California also has an interest in
extending the same protections to out-of-state defendants Del Monte, Dow, Occidental,
and Shell, all of whom do business in California. “A state has a legitimate interest in
attracting out-of-state companies to do business within the state, both to obtain tax and
other revenue that such businesses may generate for the state, and to advance the
opportunity of state residents to obtain employment and the products and services
offered by out-of-state companies.” (McCann, supra, 48 Cal.4th at pp. 91-92.)
       Plaintiffs failed to establish that the Philippines has an interest in applying its
statute of limitations to the claims filed in this California action, or that any Philippine
interest outweighs California’s interest in applying its own laws to claims brought in a
California court against defendants doing business in the state. The trial court did not
err by concluding that California’s two-year statute of limitations applied to plaintiffs’
claims.
IV. Denial of leave to amend
       Plaintiffs fail to suggest how they would amend the first amended complaint to
correct the defects noted above. The burden of proving a reasonable possibility of
amending the complaint to state a cause of action “is squarely on the plaintiff.” (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) The trial court therefore did not abuse its discretion
by sustaining the demurrer without leave to amend.




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                                  DISPOSITION
      The judgment is affirmed. Defendants are awarded their costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                              ____________________________, J.
                                              CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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