Filed 2/26/13 McKeever v. Security Consultants Group CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

RUBBIE McKEEVER,
                                                                                           F064294
         Plaintiff and Appellant,
                                                                           (Super. Ct. No. 11CECG01326)
                   v.

SECURITY CONSULTANTS GROUP, INC. et                                                      OPINION
al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y.
Hamilton, Jr., Judge.
         Moore and Moore, Howard Moore, Jr.; Moore & Moore, Kojo Howard Moore, for
Plaintiff and Appellant.
         Bremer, Whyte, Brown & O’Meara, John V. O’Meara, Patrick Au, and Sanaz
Aryanpanah; Everett L. Skillman, Jr., for Defendants and Respondents.
                                                        -ooOoo-
         Appellant, Rubbie McKeever, originally filed a complaint for personal injuries in
federal court. Following dismissal of the federal action, McKeever filed an identical
complaint in the superior court. On a motion filed by defendants and respondents,
Security Consultants Group, Inc. (Security Consultants) and Adalberto Arreguin
(Arreguin), the trial court granted judgment on the pleadings in respondents’ favor. The
court found that McKeever did not file the superior court action within the applicable
statute of limitations.
       McKeever contends the trial court erred in not applying the equitable tolling
doctrine to her case. According to McKeever, the statute of limitations should have been
tolled during the pendency of the federal court action.
       The effect of equitable tolling is that the limitations period stops running during
the tolling event and begins to run again when the tolling event has concluded. (Lantzy v.
Centex Homes (2003) 31 Cal.4th 363, 370 (Lantzy).) The court added the time that
remained in the limitations period as of the date McKeever filed her federal action to the
30-day grace period provided by 28 United States Code section 1367(d) to find that she
had 50 days to file the superior court action following the dismissal of the federal action.
However, McKeever filed the superior court action 91 days after the federal action was
dismissed. As a result, McKeever’s superior court action is barred by the statute of
limitations. The judgment is affirmed.
                      FACTUAL AND PROCEDURAL HISTORIES
       Since the appeal is from a judgment on the pleadings, we treat the properly
pleaded allegations of the complaint as true. (Mendoza v. Continental Sales Co. (2006)
140 Cal.App.4th 1395, 1401 (Mendoza).)
       On July 28, 2008, McKeever accompanied an elderly woman to a Social Security
office. After waiting a substantial amount of time to speak to someone, McKeever
questioned a Social Security Administration employee about the unduly long wait. The
employee became rude and yelled at McKeever. For no apparent reason, Arreguin
intervened. Arreguin grabbed McKeever and knocked her to the floor twice, causing her
to sustain both physical and emotional injuries. McKeever believed Arreguin was
employed by the United States government.



                                             2.
       On July 7, 2010, McKeever filed a complaint in the United States District Court
against the United States and Arreguin under the Federal Tort Claims Act to recover
damages for personal injury. McKeever personally served Arreguin with the summons
and complaint but Arreguin did not respond.
       The United States disclosed that Arreguin was employed by Security Consultants.
Security Consultants was under contract with the United States Department of Homeland
Security to provide security at the office where the incident occurred. Since Arreguin
was not employed by the United States, McKeever could not proceed in federal court.
Pursuant to stipulation, McKeever’s federal complaint was dismissed by court order on
January 19, 2011.
       On April 20, 2011, McKeever filed the underlying complaint in the superior court.
This complaint was substantively identical to the federal court complaint except that
McKeever named Security Consultants as a defendant.
       Security Consultants and Arreguin moved for judgment on the pleadings, arguing
that the action was barred because it was not commenced within two years as required by
Code of Civil Procedure section 335.1 or within the federal statutory 30-day tolling
period under 28 United States Code section 1367(d). The trial court granted Security
Consultants and Arreguin’s motion and dismissed the complaint.
                                         DISCUSSION
       In reviewing the grant of a motion for judgment on the pleadings, we apply the
same rules that govern review of a dismissal following the sustaining of a demurrer. As a
result, we are not bound by the determination of the trial court. Rather, we exercise our
independent judgment on whether a cause of action has been stated. (Mendoza, supra,
140 Cal.App.4th at p. 1401.)
       Equitable tolling is a judge-made doctrine that 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. (Lantzy, supra, 31 Cal.4th at

                                             3.
p. 370.) Application of the doctrine requires timely notice and lack of prejudice to the
defendant and reasonable and good faith conduct on the part of the plaintiff. (Addison v.
State of California (1978) 21 Cal.3d 313, 319.)
       “[T]he effect of equitable tolling is that the limitations period stops running during
the tolling event, and begins to run again only when the tolling event has concluded. As
a consequence, the tolled interval, no matter when it took place, is tacked onto the end of
the limitations period, thus extending the deadline for suit by the entire length of time
during which the tolling event previously occurred.” (Lantzy, supra, 31 Cal.4th at
pp. 370-371.) Thus, equitable tolling only suspends the running of a statute. It cannot
add time to the limitations period or revive a statute that has already run out. (Mills v.
Forestex Co. (2003) 108 Cal.App.4th 625, 651.)
       Where the tolling event is a federal court action, the statute of limitations for a
state claim over which the federal court has supplemental jurisdiction “shall be tolled
while the claim is pending [in federal court] and for a period of 30 days after it is
dismissed unless State law provides for a longer tolling period.” (28 U.S.C. § 1367(d).)
Thus, when a federal action is dismissed, there is a 30-day “grace period” added to the
statute of limitations. Accordingly, the days left in the statute of limitations period at the
time the federal claim was filed begin to run on the 31st day after the federal claim is
dismissed. (Bonifield v. County of Nevada (2001) 94 Cal.App.4th 298, 304.)
       Here, it is undisputed that the statute of limitations for McKeever’s personal injury
action was two years. (Code Civ. Proc., § 335.1.) The injury occurred on July 28, 2008,
and McKeever filed her federal court action on July 7, 2010. Thus, when she filed the
federal action, there were 21 days left in the statute of limitations period.
       McKeever contends that 28 United States Code section 1367(d) does not apply
here because she did not invoke supplemental jurisdiction allowed by federal courts over
her state claims. If McKeever is correct, under the equitable tolling doctrine her state
claim would have needed to have been filed 21 days after the federal action was

                                              4.
dismissed. As noted above, equitable tolling can only suspend the running of the statute
during the tolling event. It does not increase the limitations period.
       Moreover, without deciding whether United States Code section 1367(d) is
applicable, if we were to apply it to this case, as the trial court did, and add 30 days to the
21 days left in the limitations period, McKeever’s complaint would still be untimely. She
filed the superior court action 91 days after the federal complaint was dismissed, 40 days
after the extended statute ran out.
       McKeever contends that the “discovery rule” should be applied to this case. In
general, an action accrues on the date of injury. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d
1103, 1109 (Jolly).) However, the discovery rule postpones accrual of a cause of action
until the plaintiff discovers, or has reason to discover the cause of action, i.e., the injury
and its negligent cause. (Ibid; Investors Equity Life Holding Co. v. Schmidt (2011) 195
Cal.App.4th 1519, 1532.) McKeever acknowledges that she was aware of the facts that
might constitute a cause of action when she was battered. Nevertheless, she contends that
the action should not be held to have accrued until she discovered that Security
Consultants was a likely party because the use of Doe defendants was not available to her
in federal court.
       However, ignorance of the identity of the defendant does not affect the statute of
limitations. (Jolly, supra, 44 Cal.3d at p. 1114.) Further, once McKeever discovered that
Security Consultants was a likely defendant, she still had time to file the complaint within
the statute of limitations. Moreover, McKeever could, and did, name Doe defendants in
the superior court complaint. McKeever’s late discovery of the identity of Security
Consultants did not postpone the accrual of her cause of action.
       In sum, applying equitable tolling to McKeever’s superior court action does not
bring it within the statute of limitations. Contrary to McKeever’s apparent position,
equitable tolling does not create an open-ended statute of limitations. We conclude her
action is barred.

                                               5.
                                      DISPOSITION
      The judgment is affirmed. Costs on appeal are awarded to Security Consultants
and Arreguin.

                                                            _____________________
                                                                Wiseman, Acting P.J.

WE CONCUR:


 _____________________
 Levy, J.


 _____________________
 Kane, J.




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