Filed 9/27/17
                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                  STATE OF CALIFORNIA



OREGON STATE UNIVERSITY,                      D071752

        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.

        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.

       We agree the superior court should have sustained Oregon State's demurrer

without leave to amend because the Oregon Tort Claims Act's claims notice provision is

entitled to full faith and credit in California. Contrary to Sutherland's assertions, the

provision does not conflict with or violate California's public policy and declining to give




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).)

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the provision full faith and credit would evince an impermissible policy of discriminatory

hostility to the provision.2 We, therefore, grant the petition.

                                              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.

       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




2       As application of the claims notice provision is dispositive of Sutherland's
complaint against Oregon State, we need not decide whether other provisions of the
Oregon Tort Claims Act, including its damages cap (Or. Rev. Stat. Ann. § 30.271), are
entitled to full faith and credit.

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 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

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.

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
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."
                                                4
       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. 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

       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,

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.

                                                5
at p. 1281.) California is undoubtedly competent to legislate on the subject matter of

personal injuries to one of its citizens within its borders. (Hyatt I, at p. 494.)

       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, supra, 538 U.S. at pp. 494–495.)

California 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 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 (Gov. Code, §§ 911.2, subd. (a), 945.4). 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 Ore. App. 478, 488 [348 P.3d 301]; Robinson v. Shipley (1983) 64

Ore. App. 794, 797 [669 P.2d 1169]; with Westcon Construction Corp. v. County of

Sacramento (2007) 152 Cal.App.4th 183, 200; Nelson v. Superior Court (2001) 89

                                               6
Cal.App.4th 565, 573.) 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.6 (Compare Or. Rev. Stat. Ann. §§ 174.109, 174.117, subd. (1)(i),

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



6       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, 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
University of California's unique constitutional status, which allows it to function "in
some ways as an independent sovereign." (See Miklosy v. The Regents of the 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.)
                                             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

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

overruling Oregon State's demurrer.7

                                             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 without leave to




7      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
                                              8
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.




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