Filed 4/16/14

                               CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



LINDA HOPKINS,                                   D063392

        Plaintiff and Appellant,

        v.                                       (Super. Ct. No.
                                                  37-2010-00100179-CU-PO-CTL)
JUREK KEDZIERSKI as Trustee, etc., et al.,

        Defendants and Respondents.



        APPEAL from a judgment of the Superior Court of San Diego County, Luis R.

Vargas, Judge. Reversed and remanded with directions.

        Pettit Kohn Ingrassia & Lutz, Damian Michael Dolin and Christina G. Bernstein

for Plaintiff and Appellant.

        Horton Oberrecht Kirkpatrick & Martha, Kimberly S. Oberrecht; Horvitz & Levy,

Robert H. Wright and Eric S. Boorstin for Defendants and Respondents.

                                            I.

                                     INTRODUCTION

        In May 2008, Linda Hopkins fell from an outdoor balcony at the offices of her

employer, Perfect Smile Dental Ceramics, Inc. (Perfect Smile). As a result of the injuries
she suffered in the fall, she was unable to work. Jurek Kedzierski (Jurek) and Margo

Kedzierski (Margo) own Perfect Smile and also own the office building in which Perfect

Smile is located.1 Shortly after her accident, Hopkins began receiving workers'

compensation benefits. In April 2009, she filed a claim with the Workers' Compensation

Appeals Board, seeking additional benefits.

       In September 2010, Hopkins filed this action. In the operative fourth amended

complaint, Hopkins brought a negligence/premises liability claim against respondents

Jurek Kedzierski, as trustee of the Jerzy Jurek Kedzierski and Margo Kedzierski

Revocable Living Trust (the Trust), and against Margo, as an individual, and a negligence

claim against the Trust.2 Hopkins alleged that that the statute of limitations on these

claims had been equitably tolled while she pursued her April 2009 workers'

compensation claim. Hopkins also alleged that respondents were equitably estopped

from asserting a statute of limitations defense based on settlement negotiations that she

claimed had taken place prior to her filing the original complaint in this action.3




1       Jurek testified that he and Margo currently own the building through a family
trust. Jurek testified that at the time of the accident, he and Margo owned the building as
individuals.

2      Hopkins also brought a cause of action for employment discrimination against
Perfect Smile. Hopkins dismissed her claim against Perfect Smile in November 2012.

3      Hopkins concedes that "[w]ithout the application of equitable tolling and/or
equitable estoppel, Hopkins'[s] complaint is untimely as it was filed two years and [128]
days after her accident." The statute of limitations for Hopkins's negligence claims
against the Trust and Margo is two years. (Code. Civ. Proc., § 335.1.)
                                              2
       The trial court denied Hopkins's request for a jury trial with respect to whether

equitable tolling and/or equitable estoppel apply, held a bifurcated bench trial on these

issues, and determined that neither doctrine applied. Based on these findings, the court

concluded that Hopkins's complaint was not timely filed. The trial court entered

judgment in favor of respondents.

       On appeal, Hopkins claims that the trial court erred in denying her request for a

jury trial on the issues of whether the doctrines of equitable tolling and/or equitable

estoppel apply so as to render her action timely. Hopkins also claims that the trial court

erred in determining that neither doctrine applied.

       We conclude that the trial court did not err in denying Hopkins's request for a jury

trial, and further conclude that there is substantial evidence to support the trial court's

determination that the doctrine of equitable estoppel does not apply. However, we

conclude that the reasons that the trial court provided as the basis for its determination

that the equitable tolling doctrine is inapplicable are legally insufficient and that the

matter must be remanded to the trial court for factual findings as to whether Hopkins

demonstrated the elements of equitable tolling.

                                              II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     Hopkins's injury

       On May 9, 2008, Hopkins fell from a second story balcony of the office building

at which she worked while employed by Perfect Smile.



                                               3
B.       Hopkins's initial workers' compensation claim

         Shortly after Hopkins's accident, Perfect Smile's human resources manager,

Deanna Sanchez-Aardema, filed a workers' compensation claim form on Hopkins's

behalf. Hopkins began to receive workers' compensation benefits within a month of her

accident and continued to receive those benefits through the December 2012 bifurcated

trial in this action.

C.       Hopkins's April 2009 workers' compensation claim

         In April 2009, Hopkins filed a "Workers' Compensation Appeals Board

Application for Adjudication of Claim." In her application, Hopkins stated that she filed

the April 2009 claim "because of a disagreement regarding [Perfect Smile's] liability," for

several types of benefits including, "Temporary disability indemnity," "Reimbursement

for medical expense," "Medical treatment," "Compensation at proper rate," "Permanent

disability indemnity," "Rehabilitation," and "Supplemental Job Displacement/Return to

Work." Hopkins's April 2009 claim remained pending as of the date of the bifurcated

trial.

D.       Hopkins files this action on September 14, 2010

         On September 14, 2010, Hopkins filed this action against Perfect Smile and Jurek,

as an individual. Hopkins's complaint contained a negligence cause of action seeking

damages for personal injuries that she suffered in the May 2008 accident.

         In March 2012, Hopkins filed the operative fourth amended complaint against

Perfect Smile, the Trust, and Margo, among other defendants. As applicable to this

appeal, the complaint contained a negligence cause of action based on premises liability

                                             4
against the Trust and Margo, and a separate negligence cause of action against the Trust.

Hopkins alleged that the doctrines of equitable tolling and equitable estoppel applied so

as to render her action timely.

       Respondents filed an answer to the fourth amended complaint in which they

alleged that the action was barred by the statute of limitations, among other defenses.

E.     The bench trial on Hopkins's equitable tolling and equitable estoppel allegations

       The trial court granted respondents' application to bifurcate the trial of the statute

of limitations defense from the trial on liability and damages. In December 2012, the

trial court denied Hopkins's request for a jury trial on the issues of whether the doctrines

of equitable tolling and/or equitable estoppel applied so as to make her action timely.

       The court held a bench trial with respect to whether the doctrines of equitable

tolling and/or equitable estoppel applied. The court heard testimony from Jurek, Margo,

Sanchez-Aardema, and Hopkins's former counsel, Eric Welch. Attorney Welch testified

that he received information in September 2009 that led him to believe that Perfect Smile

owned the building where the accident occurred. In October 2009, Attorney Welch sent a

demand letter to Jurek and Perfect Smile. Golden Eagle Insurance, the insurer for both

Perfect Smile and the Kedzierskis, informed Welch that it was investigating Hopkins's

claim. On March 8, 2010, Golden Eagle notified Welch that it was denying the claim.




                                              5
F.     The trial court's ruling and Hopkins's appeal

       In January 2013, the court issued a memorandum of decision in which it ruled that

neither equitable tolling nor equitable estoppel applied to render Hopkins's claims timely.

The trial court entered judgment in favor of the Trust and Margo. Hopkins timely

appeals.

                                                III.

                                          DISCUSSION

A.     The trial court did not err in denying Hopkins's request for a jury trial on the
       issues of whether equitable estoppel or equitable tolling applies

       Hopkins claims that the trial court erred in denying her request for a jury trial on

the issues of whether equitable estoppel or equitable tolling apply to make her action

timely. The issue of whether Hopkins is "entitled to a jury trial . . . is a pure question of

law that we review de novo." (Caira v. Offner (2005) 126 Cal.App.4th 12, 23 (Caira).)

       1.      General principles of law governing the right to a jury trial under
               California law

       Article 1, section 16 of the California Constitution provides in relevant part:

            "Trial by jury is an inviolate right and shall be secured to all . . . ."

       In C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8 (C &

K Engineering Contractors), the California Supreme Court outlined the basic parameters

that govern the right to a jury trial under the state Constitution:

            "The right to a jury trial is guaranteed by our Constitution. (Cal.
            Const., art. I, § 16.) We have long acknowledged that the right so
            guaranteed, however, is the right as it existed at common law in
            1850, when the Constitution was first adopted, 'and what that right
            is, is a purely historical question, a fact which is to be ascertained

                                                 6
             like any other social, political or legal fact.' [Citations.] As a
             general proposition, 'The jury trial is a matter of right in a civil
             action at law, but not in equity.' [Citation.]"

        If an "action is essentially one in equity and the relief sought 'depends upon the

application of equitable doctrines,' the parties are not entitled to a jury trial. [Citation.]"

(C & K Engineering Contractors, supra, 23 Cal.3d at p. 9.) "The right to a jury trial for

civil actions is generally limited to those causes of action (and their analogues) that were

historically triable in a court of law." (Hoopes v. Dolan (2008) 168 Cal.App.4th 146,

155.)

        "Complications arise when legal and equitable issues (causes of action, requested

remedies, or defenses) are asserted in a single lawsuit." (Hoopes v. Dolan, supra, 168

Cal.App.4th at p. 156.) However, "It is well established in California jurisprudence that

'[t]he court may decide the equitable issues first . . . .' [Citation.]" (Id. at p. 157.)

        2.      Application

        "As the name suggests, equitable estoppel is an equitable issue for court

resolution." (Hoopes v. Dolan, supra, 168 Cal.App.4th at p. 161; see C & K Engineering

Contractors, supra, 23 Cal.3d at p. 9 ["equitable estoppel may be tried by the court

without a jury"].)

        With respect to equitable tolling, neither party cited, and our independent research

has not revealed, any California case law specifically addressing whether a party has a

right to a jury trial on the issue of the potential applicability of this doctrine. However,

for the following reasons, we conclude that there is no such right. Equitable tolling "is a

rule of procedure adopted by the courts" (Mills v. Forestex Co. (2003) 108 Cal.App.4th

                                                 7
625, 650) that is " 'designed to prevent unjust and technical forfeitures of the right to a

trial on the merits . . . .' [Citation.]" (McDonald v. Antelope Valley Community College

Dist. (2008) 45 Cal.4th 88, 99 (McDonald).) The doctrine of equitable tolling does not

implicate any " ' "ordinary common-law rights cognizable in courts of law," ' " and is not

"' "to that extent an action at law." ' [Citation.]" (C & K Engineering Contractors, supra,

23 Cal.3d at p. 9.) Therefore, in light of its equitable nature, we conclude that equitable

tolling, "[a]s the name suggests . . . is an equitable issue for court resolution." (Hoopes v.

Dolan, supra, 168 Cal.App.4th at p. 161.)

       Hopkins's arguments to the contrary are not persuasive. Hopkins notes that there

are California civil jury instructions concerning both equitable estoppel and equitable

tolling, suggesting that the existence of these jury instructions means that a jury is to

decide these issues. (See CACI Nos. 456, 457.) However, the existence of such

instructions does not demonstrate that a party has a right to a jury trial on these equitable

issues. Rather, the instructions are appropriate for use when a trial court "empanel[s] an

advisory jury to make preliminary factual findings" (Hoopes v. Dolan, supra, 168

Cal.App.4th at p. 156), with respect to equitable estoppel or equitable tolling.4 (See ibid.

["[A] jury may be used for advisory verdicts as to questions of fact [in equitable

actions]"].) Hopkins also notes that equitable estoppel and equitable tolling present

questions of fact. We agree. However, with respect to equitable issues, the trial court is




4     We respectfully suggest that the "Directions for Use" for CACI Nos. 456 and 457
be amended to expressly state that they are intended for such use.
                                              8
the trier of fact. (See, e.g., Caira, supra,126 Cal.App.4th at p. 41 ["the trial court was the

proper trier of fact of [party's] equitable claims"].)

       Accordingly, we conclude that the trial court did not err in denying Hopkins a jury

trial on the issues of equitable estoppel or equitable tolling.

B.     The trial court's reasons for determining that the equitable tolling doctrine does
       not apply in this case are legally insufficient; the matter must be remanded to the
       trial court for a determination as to whether Hopkins demonstrated the required
       elements of equitable tolling

       Hopkins claims that the trial court erred in concluding that the doctrine of

equitable tolling does not apply so as to render her action timely. We conclude that the

trial court's reasons for determining that the equitable tolling doctrine is inapplicable are

legally insufficient. We further conclude that the judgment may not be affirmed on any

of the alternate grounds offered by respondents on appeal, and that the matter must be

remanded to the trial court for factual determinations as to whether Hopkins

demonstrated the elements of equitable tolling.

       1.     Governing law

       "The equitable tolling of statutes of limitations is a judicially created, nonstatutory

doctrine. [Citations.] It is 'designed to prevent unjust and technical forfeitures of the

right to a trial on the merits when the purpose of the statute of limitations—timely notice

to the defendant of the plaintiff's claims—has been satisfied.' [Citation.] Where

applicable, the doctrine will 'suspend or extend a statute of limitations as necessary to

ensure fundamental practicality and fairness.' [Citation.]" (McDonald, supra, 45 Cal.4th

at p. 99.)


                                               9
       In Elkins v. Derby (1974) 12 Cal.3d 410, 414 (Elkins), the Supreme Court held

that the doctrine of equitable tolling may apply to toll the statute of limitations on a claim

during the period in which a plaintiff pursues another remedy for the harm that the

plaintiff suffered. The Elkins court adopted a line of cases in which courts had concluded

that "if the defendant is not prejudiced thereby, the running of the limitations period is

tolled '[w]hen an injured person has several legal remedies and, reasonably and in good

faith, pursues one.' " (Id. at p. 414, quoting Myers v. County of Orange (1970) 6

Cal.App.3d 626, 634 (Myers).)

       In Elkins, the plaintiff suffered an injury in September 1969 while working on the

defendants' premises. (Elkins, supra, 12 Cal.3d at p. 413.) Approximately 10 months

after the injury, the plaintiff filed an application for workers' compensation benefits

against the defendants. (Ibid.) A workers' compensation referee determined that the

plaintiff was not an "employee" of the defendants under the applicable Labor Code

provisions at the time of his injury and concluded that he was therefore ineligible for

workers' compensation benefits. (Ibid.) The referee's decision became final in mid-

December 1970, approximately 15 months after the plaintiff's injury. (Ibid.)

Approximately a month after the referee's decision became final, the plaintiff filed a

personal injury action seeking recovery for the same injury that served as the basis of his

workers' compensation claim. (Ibid.) The trial court sustained the defendants' demurrer

on the ground that the action was barred by the applicable one-year statute of limitations.

(Ibid.) On appeal, the Elkins court reversed, holding that the statute of limitations had



                                             10
been tolled for the period during which the plaintiff pursued his workers' compensation

remedy. (Id. at p. 412.)

       The Elkins court reasoned that the primary purpose of a limitations statute is to

" '(prevent) surprises through the revival of claims that have been allowed to slumber

until evidence has been lost, memories have faded, and witnesses have disappeared.' "

(Elkins, supra, 12 Cal.3d at p. 417, quoting Order of Railroad Telegraphers v. Railway

Express Agency, Inc. (1944) 321 U.S. 342, 348-349.) According to the Elkins court, that

purpose is "normally satisfied when the defendant receives timely notification of the first

of two proceedings." (Elkins, supra, at p. 416, fn. 3.)

       In the wake of Elkins, the California Supreme Court has stated that in order to

prove the applicability of the equitable tolling doctrine, a party must establish "three

elements: 'timely notice, and lack of prejudice, to the defendant, and reasonable and good

faith conduct on the part of the plaintiff.' [Citations.]" (McDonald, supra, 45 Cal.4th at

p. 102.) " ' "The timely notice requirement essentially means that the first claim must

have been filed within the statutory period. Furthermore[,] the filing of the first claim

must alert the defendant in the second claim of the need to begin investigating the facts

which form the basis for the second claim. Generally this means that the defendant in the

first claim is the same one being sued in the second." [Citation.] "The second

prerequisite essentially translates to a requirement that the facts of the two claims be

identical or at least so similar that the defendant's investigation of the first claim will put

him in a position to fairly defend the second." [Citation.] "The third prerequisite of good

faith and reasonable conduct on the part of the plaintiff is less clearly defined in the

                                               11
cases. But in Addison v. State of California [(1978)] 21 Cal.3d 313, the Supreme Court

did stress that the plaintiff filed his second claim a short time after tolling ended."

[Citation.]' [Citation.]" (McDonald, supra, at p. 102, fn. 2.)

       Finally, the Supreme Court has instructed that "courts . . . have, and should,

'liberally appl[y] tolling rules or their functional equivalents to situations in which the

plaintiff has satisfied the notification purpose of a limitations statute.' [Citation.]"

(McDonald, supra, 45 Cal.4th at p. 102.)

       2.      The trial court's ruling

       In its memorandum of decision, the trial court ruled that Hopkins's pursuit of her

workers' compensation case did not equitably toll the applicable statute of limitations.

In making this determination, the trial court reasoned:

            "[Hopkins's] pursuit of her workers' compensation case and later
            filing of the workers' compensation appeal on April 6, 2010,[5]
            against her employer did not toll the applicable statute of limitations.
            [Hopkins] was provided workers' compensation benefits
            immediately after the injury and has continued to receive benefits as
            recently as the date of the instant trial.

            "In order for the statute of limitations to be tolled while [Hopkins]
            pursued a workers' compensation remedy, the workers'
            compensation claim would need to be rejected, or it would need to
            be determined [Hopkins] was somehow ineligible for benefits,
            thereby necessitating the pursuit of another remedy against the same
            [d]efendant. Elkins[, supra,] 12 Cal.3d 410.

            "In the instant case, [Hopkins] was not denied workers'
            compensation benefits and was not deemed ineligible for benefits


5     Hopkins's application for adjudication of her claim with the Workers'
Compensation Appeals Board was action actually filed in April 2009, rather than April
2010.
                                              12
            under the workers' compensation coverage provided by her
            employer, [Perfect Smile]. [Hopkins's] case is now against different
            Defendants, Jurek Kedzierski, as Trustee . . . and Margo Kedzierski,
            an individual, the owners of the building where [Hopkins] worked.
            The pursuit of the workers' compensation case against [Hopkins's]
            employer, [Perfect Smile,] involves a different [d]efendant, which
            further precludes an argument of tolling."

       3.      The trial court's reasons for determining that the equitable tolling doctrine
               does not apply in this case are legally insufficient

       Whether the trial court provided legally sufficient reasons for determining that the

doctrine of equitable estoppel does not apply in this case presents a question of law that

we review de novo. (See, e.g., R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 [stating

that whether a factual finding is legally sufficient to support a legal conclusion is a

question of law subject to de novo review].)

       Contrary to the trial court's memorandum of decision, there is neither legal nor

logical support for the court's ruling that in order for equitable tolling to apply, Hopkins

was required to have been unsuccessful in seeking workers' compensation benefits.6

Although the trial court cited Elkins, supra, 12 Cal.3d 410, in support of this proposition,

Elkins contains no such requirement. While it is true that the plaintiff in Elkins was

unsuccessful in his attempt to obtain workers' compensation benefits (id. at p. 413), there

is nothing in the opinion that suggests that this fact was necessary to the court's

conclusion that the statute was tolled while the plaintiff "pursued his compensation

remedy." (Id. at p. 412, italics added.) In fact, the logic of Elkins compels the opposite


6       As noted previously, Hopkins started to receive workers' compensation benefits
shortly after her accident. Her claim for additional benefits remained pending at the time
of the trial in this case. (See pt. II., ante.)
                                              13
conclusion, namely, that tolling is premised on the "filing of a compensation claim" (id.

at p. 413, italics added), and that the rejection of such a claim is not a prerequisite to

tolling.

       A plaintiff cannot know at the time he or she files a workers' compensation claim

whether he or she will be successful in prosecuting that claim. If failure in the workers'

compensation proceeding were a requirement for equitable tolling, such a plaintiff would

always be required to file a tort claim within the ordinary limitation period in order to

preserve his or her right to prosecute that tort claim. This is the precise outcome that the

Elkins court sought to avoid. (See Elkins, supra, 12 Cal.3d at p. 419, and fn. 8 [lamenting

"the inequity that a duplicative filing requirement might work upon an injured party" and

noting that "the conscientious attorney, absent a tolling rule, would be induced in

numerous cases to file in both tribunals"].) As the Court of Appeal in Myers, supra, 6

Cal.App.3d at page 636, stated in explaining its conclusion that equitable tolling may

apply where a plaintiff pursues a voluntary administrative remedy:

           "[T]he question of tolling is not to be determined retrospectively
           depending upon the success or failure of the plaintiff in pursuing the
           alternative remedy. [Citation.] . . . The injured person should not
           be required 'to predict at his peril the precise legal theory [remedy]
           supporting ultimate recovery. He should not be placed in the
           dilemma of awaiting "jurisdictional" decisions . . . [of one
           tribunal] . . . while the clock of limitations ticks in his ear.'
           [Citation.]"

       Further, the requirement that the trial court imposed in this case that the first claim

be "unsuccessful" is not mentioned in the Elkins court's formulation of the prerequisites

to equitable tolling. (See Elkins, supra, 12 Cal.3d at p. 414 ["if the defendant is not


                                              14
prejudiced thereby, the running of the limitations period is tolled '[w]hen an injured

person has several legal remedies and, reasonably and in good faith, pursues one,' "

quoting Myers, supra, 6 Cal.App.3d at p. 634].) No court has held, or even suggested,

that the doctrine of equitable tolling under California law contains such a requirement.

Rather, as the Supreme Court reiterated in McDonald, supra, 45 Cal.4th at page 102, in

outlining the elements of equitable tolling, "[O]ur judicially created equitable tolling rule

. . . require[s] a showing of three elements: 'timely notice, and lack of prejudice, to the

defendant, and reasonable and good faith conduct on the part of the plaintiff.' [Citation.]"

(Ibid.)

          In rejecting the defendant's argument in McDonald, supra, 45 Cal.4th at page 111

that equitable tolling "should be categorically unavailable" to the plaintiff because she

voluntarily abandoned the internal grievance proceeding on which her tolling claim was

based, the Supreme Court stated, "Neither we nor the Courts of Appeal have ever made

equitable tolling contingent on a plaintiff's waiting for resolution of an alternate

proceeding . . . prior to institution of further proceedings." (Ibid.)

          Just as the resolution of the alternate proceeding is not a prerequisite to the

application of the equitable tolling doctrine, neither is failure in the alternate proceeding a

prerequisite. We conclude that the trial court erred in determining that in order for

equitable tolling to apply, Hopkins was required to have been unsuccessful in seeking

workers' compensation benefits.

          The trial court also stated that the doctrine of equitable tolling could not apply

because the defendant in the workers' compensation case was Hopkins's employer,

                                                15
Perfect Smile, while the remaining defendants in this case were Jurek, as trustee, and

Margo. This too is a legally insufficient reason to support the trial court's determination

that equitable tolling is unavailable in this case.

       The first element of equitable tolling set forth by the Elkins court is that the

defendant have had timely notice of the action. In discussing this requirement, the

McDonald court noted that "[g]enerally . . . the defendant in the first claim is the same

one being sued in the second." (McDonald, supra, 45 Cal.4th at p. 102, fn. 2.) However,

this does not mean that the defendants in the two actions must be the same. Rather, the

filing of the first claim must "alert the defendant in the second claim of the need to begin

investigating the facts which form the basis for the second claim." (Ibid.) Where the first

action puts the defendant in the second action on notice of the need to begin to investigate

facts that form the basis of the second claim, equitable tolling may apply even where the

defendants in the two actions are not the same parties. (See, e.g., Structural Steel

Fabricators, Inc. v. City of Orange (1995) 40 Cal.App.4th 459 [concluding trial court

properly determined that equitable tolling applied where subcontractor's suit against

general contractor put city on notice of facts that formed the basis for second action

against city]; Stalberg v. Western Title Ins. Co. (1994) 27 Cal.App.4th 925 [concluding

equitable tolling applicable where plaintiff's quiet title suit against property owners put

title insurer on notice of facts that formed the basis of second action against title insurer];

see also Apple Valley Unified School Dist. v. Vavrinek, Trine, Day & Co. (2002) 98

Cal.App.4th 934, 955 -956 ["We are aware of decisions applying equitable tolling against

defendants who were not parties to the prior actions . . . involv[ing] fact situations in

                                              16
which the defendants [in the second action] clearly had notice of the claims against them

before the statutes expired," citing Structural Steel Fabricators, Inc. and Stalberg].)

Thus, the mere fact the defendants in this case are not the same as in the workers'

compensation proceeding7 does not establish that equitable tolling does not apply.

       It appears to be undisputed that respondents received notice of the need to begin to

investigate the facts that formed the basis of Hopkins's claims well within the ordinary

statute of limitations period for the claims asserted in this action.8 Accordingly, the trial

court erred in concluding that the mere fact that the identities of the defendants in the two

actions are not the same "precludes an argument of tolling."

       Accordingly, we conclude that neither of the reasons that the trial court provided

for declining to apply the equitable tolling doctrine on the basis of Hopkins's workers'

compensation claim is legally sufficient.9 We must therefore conclude that the trial court


7     As noted previously, Hopkins's employer, Perfect Smile, was also originally
named as a defendant in this action. Hopkins dismissed her claim against Perfect Smile
in November 2012.

8      Respondents note in their brief that Jurek and Margo were aware of the accident as
of the day after it occurred, and that their insurer undertook an investigation into the
accident. At trial, Hopkins testified that in January 2010, the insurer interviewed her and
she executed a medical authorization form permitting the insurer to review her medical
records. Welch testified that, prior to February 2010, he provided the insurer with
Hopkins's medical bills and records, among other documents.

9       Hopkins also contends that the trial court should have found that the statute of
limitations was equitably tolled during a period in which she contends the parties were
engaged in settlement negotiations. We assume strictly for the sake of this opinion that a
limitation period may be tolled while the parties pursue settlement negotiations. (See
Union Oil Co. of Calif. v. Greka Energy Corp. (2008) 165 Cal.App.4th 129, 138 (Union
Oil) [concluding that a statute of limitation period was "tolled" where plaintiff filed a
                                             17
erred in concluding that the doctrine of equitable tolling does not apply to Hopkins's

action.

          4.    The judgment may not be affirmed on any of the alternate grounds that
                respondents offer in their brief

          Respondents contend that there are several alternative grounds for affirming the

judgment. First, respondents note that the Elkins court stated that allowing tolling in that

case would not interfere with the goal of "promptly . . . resolv[ing] disputes in order that

commercial and other activities can continue unencumbered by the threat of litigation."

(Elkins, supra, 12 Cal.3d at p. 417, fn. 4.) Respondents contend that permitting tolling in

this case "would interfere with [the] goal of promptly resolving disputes" because,

claim against defendant's performance bond and defendant "requested settlement
negotiations"]; but see Rylaarsdam et al., Civil Procedure Before Trial (The Rutter Group
2006) ¶ 6-B Statutes of Limitation [stating that the facts of Union Oil "clearly supported
application of equitable estoppel . . . [and] [t]he [Union Oil court's] reference to equitable
tolling seems unnecessary and erroneous," italics added]).
        Even assuming that this is so, Hopkins fails to demonstrate that the trial court
erred in refusing to toll the limitation period on this ground. The trial court found that
"the facts presented at trial make clear there were no meaningful negotiations between
[Hopkins] and [respondents] and/or [respondents'] carrier about settlement that warrant
tolling the statute of limitation." Specifically, the court found that Hopkins presented "no
evidence to suggest any significant negotiations actually occurred between [Hopkins] and
[respondents] and/or [respondents'] carrier," and that the "undisputed evidence shows that
there were no settlement offers made to [Hopkins] by [respondents] or their carrier."
Hopkins fails to demonstrate on appeal that there is not substantial evidence to support
these factual findings. (Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 408
(Marcario) [" '[W]e are compelled to affirm the trial court's rejection of the theory [of
equitable tolling] if there is substantial evidence to support its determination.'
[Citation.]"].) Accordingly, we reject Hopkins's claim that the court erred in refusing to
toll the statute of limitations on the basis of purported settlement negotiations between
the parties. Further, to the extent Hopkins contends that trial court erred in refusing to
apply the doctrine of equitable estoppel on the basis of purported settlement negotiations
between the parties, her claim fails for the same reason. (Cuadros v. Superior
Court (1992) 6 Cal.App.4th 671, 675 [substantial evidence standard of review applies to
review of trial court's factual findings concerning equitable estoppel].)
                                              18
"[u]nder Hopkins's theory, the statute of limitations 'continues to be tolled today'—over

five years since her injury."

       The plaintiff in Elkins suffered his injury on September 8, 1969, and filed his

personal injury action on January 19, 1971, which was approximately four months after

the ordinary one-year limitation period had run. (Elkins, supra, 12 Cal.3d at p. 413.) In

this case, Hopkins filed her claim 128 days beyond the applicable limitation period, a

nearly identical time period as in Elkins. We need not determine whether Hopkins is

correct that the doctrine of equitable tolling would allow her to file her lawsuit today, in

order to conclude that permitting tolling in this case would not materially undermine the

goal of promptly resolving disputes.

       Respondents also argue that, unlike in Elkins, the remedies that Hopkins seeks in

the two proceedings are not "mutually exclusive." In this vein, respondents argue that

equitable tolling should not be applied in this case because "[t]he remedies Hopkins

desired—workers' compensation from her employer and tort damages from the building

owner—always require two proceedings no matter the result of the first." Respondents'

arguments are based on the implicit premise that equitable tolling may apply only where

all of the damages recoverable in the second action would also have been recoverable in

the first action. However, that is not the law. Equitable tolling may apply "where one

action stands to lessen the harm that is the subject of a potential second action."

(McDonald, supra, 45 Cal.4th at p. 100, italics added.) That is the case here. In her

workers' compensation proceeding, Hopkins sought to recover reimbursement for

medical expenses and permanent disability indemnity, among other benefits. Thus, the

                                             19
workers' compensation proceeding had the potential to lessen the harm that is the subject

of this tort action.10

       Respondents also appear to contend that Hopkins may not avail herself of the

equitable tolling doctrine because she did not "ma[ke] a rational decision to pursue one

remedy before attempting the alternative." (Freeman v. State Farm Mut. Auto. Ins.

Co. (1975) 14 Cal.3d 473, 489, fn. 6 (Freeman).) Specifically, respondents argue that it

was "not rational" for Hopkins to wait until after the limitations period had ended to file

her tort claim because "the tort action would have been required no matter the outcome of

the workers' compensation action." We are not persuaded. Neither the Freeman court,

nor any other court, has held that making "a rational decision" to pursue one remedy

before pursuing another (ibid.) is an element of equitable tolling. (See McDonald, supra,

45 Cal.4th 4th at p. 102 [listing elements of equitable tolling without reference to a

"rational decision" requirement].) Moreover, as noted above, the equitable tolling

doctrine may apply where the first action lessens a plaintiff's harm. (Id. at p. 100.) Thus,

where a plaintiff has " 'several legal remedies' " (Elkins, supra, 12 Cal.3d at p. 414,

quoting Myers, supra, 6 Cal.App.3d at p. 634), the plaintiff may rationally pursue the first




10      Respondents assert,"[A]ny workers' compensation award would not affect the tort
award," but fail to demonstrate that this is so. " 'A basic premise of compensation law is
that there shall be but a single recovery of benefits on account of a single injury or
disability; to permit a double recovery would be to place a double burden on industry and
encourage malingering; the right to recovery of compensation from more than one source
is subject to the rule that a credit shall be allowed against an award for any payment to
the extent that it permits a double recovery.' [Citation.]" (Sea-Land Service, Inc. v.
Workers' Comp. Appeals Bd. (1996)14 Cal.4th 76, 82.)
                                             20
action even if it does not afford the plaintiff all of the relief that she might be able to

obtain in the second action.11

       Similarly, Hopkins's claim of equitable tolling cannot be defeated merely because

she could have filed her tort claim within the ordinary limitation period. (See, e.g.,

Marcario, supra, 155 Cal.App.4th at p. 409 ["the County simply suggests that Marcario

could have filed this lawsuit during the pendency of her grievance proceeding, and thus

should not be entitled to any tolling. But that is simply contrary to what Elkins holds.

The fact that Marcario could have pursued her civil claim earlier simply puts her in the

same position as the plaintiff in Elkins. And we conclude, as the Supreme Court did, that

'could have' is not the same thing as 'was obligated to' "]; cf. Collier, supra, 142

Cal.App.3d at p. 932 [stating that "[c]omplete inactivity on the second claim, in fact, is

what 'equitable tolling' is all about," and noting that, where applicable, "this doctrine

excuses the plaintiff from even filing a claim"].)

       We also reject respondents' contention that the tolling period lasted for only 90

days after the filing of Hopkins's initial workers' compensation claim on May 12, 2008


11     Respondents also cite as a reason to distinguish Hopkins's situation from that of
the plaintiff in Elkins (Elkins, supra, 12 Cal.3d 410) that, unlike that plaintiff, Hopkins
would not be required to "advance mutually inconsistent positions" in her workers'
compensation action and in this case. Even assuming that this is so, as respondents'
acknowledge, the absence of inconsistency is not "a sufficient reason in and of itself to
deny equitable tolling" (citing Nichols v. Canoga Industries (1978) 83 Cal.App.3d 956,
964). In addition, courts have recognized that requiring a plaintiff to simultaneously
pursue two legal proceedings may be burdensome to the plaintiff in ways other than the
potential need to take inconsistent positions. (See e.g. Collier v. City of Pasadena (1983)
142 Cal.App.3d 917, 933 (Collier) [stating that without tolling plaintiffs would be
"compelled to incur the expense of pursuing simultaneously two separate administrative
actions"].)
                                               21
(citing Lab. Code, § 5402, subd. (b) ["If liability is not rejected within 90 days after the

date the claim form is filed . . . the injury shall be presumed compensable under this

division"].) Hopkins's equitable tolling claim is not premised on her May 2008 workers'

compensation claim, but rather, on her April 9, 2009 application with the Workers'

Compensation Appeals Board in which she sought various additional benefits.

Respondents' argument fails because it does not address the effect of the April 9, 2009

filing.12

       Finally, respondents contend that the judgment may be affirmed on the ground that

the trial court found that Hopkins did not act reasonably and in good faith. However, the

trial court made no such finding. The trial court's memorandum of decision is clear that

its findings with respect to the conduct of Hopkins's former attorney in filing this action

pertained to the issue of whether respondents should be equitably estopped from asserting


12      As respondents correctly note, one court has stated, "We do not believe the Elkins
court meant the tolling period could extend for the length of time it takes to adjudicate the
claimant-plaintiff's permanent disability." (Valdez v. Himmelfarb (2006) 144
Cal.App.4th 1261, 1274 (Valdez) [stating that a final adjudication of issues regarding a
claimant's permanent disability "may not occur for 10 years or more"].) However, the
Valdez court acknowledged that the Elkins court did not have to decide this issue
"because the plaintiff in Elkins was denied workers' compensation benefits on the ground
he was not an employee of the alleged employer" (Valdez, supra, at p. 1274, italics
added), and, therefore, there never was "an adjudication of the plaintiff's permanent
disability because he was not entitled to any workers' compensation benefits." (Ibid.,
italics added.)
        Similarly, in this case, neither this court nor the trial court on remand (see pt.
III.B.5., post) need determine whether the tolling period would continue for the entire
length of time it takes to adjudicate Hopkins's workers' compensation case because it is
undisputed that Hopkins filed this action just 128 days after the ordinary limitation period
expired. However, we note that as the asserted tolling period grows in length, generally,
the less likely a plaintiff will be able to establish that the defendant would not be
prejudiced by the filing of the second action beyond the ordinary limitation period.
                                              22
a statute of limitations defense.13 As respondents note, "[t]he two doctrines of equitable

tolling and equitable estoppel are distinct." (Italics added.)14 Thus the trial court's

findings, such as that Hopkins's former counsel's "lack of due diligence and

mistake . . . does not allow for equitable estoppel" (italics added) and that Hopkins had

not shown that respondents or their insurance carrier had made any misrepresentations

"that were reasonably relied upon by her former counsel . . . warranting equitable

estoppel" (italics added), do not provide a basis for affirming the trial court's ruling that

equitable tolling does not apply.

       5.     The matter must be remanded to permit the trial court to make factual
              determinations as to whether Hopkins demonstrated the three required
              elements of equitable tolling

       While the case law is not entirely clear, it appears that the weight of authority

supports our conclusion that whether a plaintiff has demonstrated the elements of

equitable tolling presents a question of fact. (See, e.g. Transport Ins. Co. v. TIG Ins. Co.

(2012) 202 Cal.App.4th 984, 1012 ["we are hard pressed to think of more fact-specific

issues than 'accrual' and 'tolling' "]; Marcario, supra, 155 Cal.App.4th at p. 408

13      We discuss the court's findings in this regard in our discussion of Hopkins's claim
that there is insufficient evidence in the record to support the trial court's finding that the
doctrine of equitable estoppel does not apply. (See pt. III.C., post.)

14      " ' "Tolling, strictly speaking, is concerned with the point at which the limitations
period begins to run and with the circumstances in which the running of the limitations
period may be suspended. . . . Equitable estoppel, however, . . . comes into play only
after the limitations period has run and addresses . . . the circumstances in which a party
will be estopped from asserting the statute of limitations as a defense to an admittedly
untimely action because his conduct has induced another into forbearing suit within the
applicable limitations period." ' [Citation.]" (Lantzy v. Centex Homes (2003) 31 Cal.4th
363, 383.)
                                              23
[" 'Equitable tolling is a fact intensive issue and it is determined based upon evidence,' "

quoting Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434]; Structural Steel

Fabricators, Inc., supra, 40 Cal.App.4th at pp. 466-467 ["[t]he issue of good faith [for

purposes of the equitable tolling doctrine] presented a factual inquiry]; Campbell v.

Graham-Armstrong (1973) 9 Cal.3d 482, 490 ["Plaintiffs' [equitable tolling]

theory . . . requires a factual determination as to whether they reasonably and in good

faith pursued their remedies"].)

       Because the trial court concluded that the doctrine of equitable tolling did not

apply based on reasons that we have rejected above, the trial court made no findings of

fact with respect to any of the elements of the doctrine of equitable tolling. Accordingly,

we conclude that the matter must be remanded to the trial court to permit the court to

make factual findings as to whether Hopkins demonstrated the three required elements of

equitable tolling. After making these findings, the trial court shall proceed to determine

whether the doctrine of equitable tolling applies so as to render Hopkins's action timely.

       With respect to the procedure to be employed by the trial court on remand, we

recognize that the trial court has already conducted a bench trial concerning the issues of

equitable tolling and equitable estoppel. We emphasize that we are not ordering the trial

court to conduct a new trial. Rather, the court is free to employ whatever procedure it

deems necessary and legally appropriate in making the required findings.




                                             24
C.     There is sufficient evidence in the record to support the trial court's finding that
       the doctrine of equitable estoppel does not apply

       Hopkins claims that there is insufficient evidence in the record to support the trial

court's finding that the doctrine of equitable estoppel does not apply. Specifically,

Hopkins challenges the trial court's finding that she failed to demonstrate "that there were

any misrepresentations by [respondents] and/or its [insurance] carrier that were

reasonably relied upon by [Hopkins's] former counsel . . . thereby warranting equitable

estoppel."

       1.     Governing law and standard of review

       " ' " 'Four elements must ordinarily be proved to establish an equitable estoppel:

(1) The party to be estopped must know the facts; (2) he must intend that his conduct

shall be acted upon, or must so act that the party asserting the estoppel had the right to

believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the

true state of facts; and, (4) he must rely upon the conduct to his injury.' " ' [Citation.]"

(Ashou v. Liberty Mutual Fire Ins. Co. (2006) 138 Cal.App.4th 748, 766-767.)

       "The determination of whether a defendant's conduct is sufficient to invoke the

doctrine is a factual question entrusted to the trial court's discretion. [Citation.] The

issue is whether, viewing the evidence and all the inferences therefrom in the light most

favorable to the defendants, there was substantial evidence upon which the court could

reasonably have found as it did." (Cuadros v. Superior Court, supra, 6 Cal.App.4th at p.

675 [discussing the doctrine of equitable estoppel].)




                                              25
       2.     Application

       Hopkins cites evidence on two issues that she contends demonstrate that the

doctrine of equitable estoppel applies in this case. First, she contends that the

respondents' insurer and agent "advised Hopkins [in a March 2010 letter] that the owner

of the subject building [where the accident occurred] was Perfect Smile, Hopkins's

employer." Hopkins appears to suggest that this misrepresentation caused her to fail to

file her lawsuit against respondents until after May 9, 2010 (two years from the date of

her injury), citing Welch's testimony that he did not know the identity of the true owner

of the building until May 2011. This contention fails for numerous reasons, including

that the March 2010 letter does not unambiguously state that Perfect Smile is the owner

of the subject building,15 and the trial court found Welch's testimony concerning this

issue to be "contradictory, self-serving, and wholly unreliable." We may not reweigh the

trial court's credibility determination. (See, e.g, Do v. Regents of the University of

California (2013) 216 Cal.App.4th 1474, 1492 ["On substantial evidence review, we do

not 'weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the

evidence or in the reasonable inferences that may be drawn from it' [citation]"].)

Moreover, the trial court reasonably found that the "ownership of the building is a matter

of public record and would have revealed the correct defendants [to sue] had [Hopkins's



15     The letter states, "The exclusive remedy doctrine [i.e. the rule that workers'
compensation is generally the exclusive remedy of the employee and his or her
dependents against the employer for workplace injuries] applies to landowners who are in
a dual capacity as a landlord and employer." Hopkins contends that the this statement
implied that Perfect Smile was both her employer and the owner of the building.
                                             26
former counsel] conducted a meaningful investigation." In addition, the court reasonably

found that any confusion as to the identity of the owners of the subject building was not a

factor in Hopkins failing to file her action within the two-year period, since "the claim

about not knowing who owned the building and being misled about who owned the

building does not arise in any of the pleadings in this case."

         Hopkins also contends that her testimony that Jurek, Margo, and Sanchez-

Aardema told her that "they would take care of me until I came back to work,"

demonstrates that the doctrine of equitable estoppel applies. Jurek, Margo, and Sanchez-

Aardema each testified that they did not make such representations to Hopkins. Thus, the

trial court could reasonably have found that no such representations were made. As

noted above, we may not reweigh the trial court's credibility determination on appeal.

(See, e.g, Do v. Regents of the University of California, supra, 216 Cal.App.4th at p.

1492.)

         Accordingly, we conclude that there is substantial evidence in the record to

support the trial court's determination that the doctrine of equitable estoppel does not

apply in this case.

                                             IV.

                                       DISPOSITION

         The judgment is reversed and the matter is remanded with directions for the trial

court to determine whether Hopkins has demonstrated the three required elements of

equitable tolling. After making this determination, the trial court shall proceed to

determine whether the doctrine of equitable tolling applies so as to render Hopkins's

                                              27
action timely. In making these determinations, the trial court may conduct any

proceedings necessary and consistent with this opinion.

      Each party is to bear its own costs on appeal.



                                                                             AARON, J.

WE CONCUR:



              McCONNELL, P. J.



                   O'ROURKE, J.




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