IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)
July 21, 2011
JAMES FENNELLY, PLAINTIFF AND APPELLANT,
JESSIE THAYER, DEFENDANT AND RESPONDENT.
(Super. Ct. No. 07-CV-4990)
The opinion of the court was delivered by: Nicholson, J.
Fennelly v. Thayer
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115
A plaintiff must file a tort action for personal injury within two years after accrual of the action. (Code Civ. Proc., § 335.1.) However, the beginning of the two-year period is delayed while the plaintiff is "insane." (Code Civ. Proc., § 352, subd. (a).)
Plaintiff James Fennelly filed a complaint alleging that he sustained personal injury as a result of a vehicular accident caused by defendant Jessie Thayer. The trial court, however, granted summary judgment in favor of Thayer because Fennelly failed to file the complaint within the statute of limitations.
On appeal, Fennelly contends that the trial court (1) erred by granting summary judgment as to the statute of limitations issue because he asserted that he was insane for at least 14 days between the accident and the filing of the complaint, and (2) abused its discretion in granting summary judgment, alternatively, based on his failure to file his own separate statement responding to Thayer's separate statement of undisputed facts. Neither contention has merit. Therefore, we affirm.
As alleged by Fennelly, Thayer's car collided with Fennelly's car on August 26, 2005, causing injuries to Fennelly.
Fennelly filed a complaint for damages on September 7, 2007, two years and 12 days after the accident.*fn1 The complaint alleged that "at times herein between August 26, 2005 and the date of filing herein, [Fennelly] was not mentally competent for a minimum of at least 14 days."
Thayer filed a motion for summary judgment, asserting that Fennelly's personal injury claim was barred by the two-year statute of limitations. In support of his motion, Thayer filed a separate statement of undisputed facts in which he stated, as relevant to this appeal, that:
(1) Fennelly attributed his mental incompetence to the injuries he sustained in the accident and his wife's subsequent death from cancer;
(2) Fennelly did not recall hitting his head in the accident;
(3) Fennelly was in the hospital for three days after the accident;
(4) nurses visited Fennelly's home two to three times per week to help him, including bathing him, during the three to four weeks after his release from the hospital;
(5) since the accident, Fennelly sometimes has difficulty remembering things;
(6) immediately after the accident, Fennelly felt depressed and did not want to talk to anyone, sitting around the house by himself for a couple of weeks;
(7) Fennelly did not take care of his bills for two to three weeks after the accident but preferred to, in his words, "sit around and take life easy";
(8) because of his depression and mental impairment, Fennelly receives help with housework twice per month;
(9) Fennelly's wife's passing in April 2006 has caused him to be depressed; and
(10) Fennelly has never been diagnosed or adjudicated as being incompetent.
Fennelly, who is in his 80's, filed an opposition to Thayer's motion for summary judgment. However, in violation of Code of Civil Procedure section 437c, subdivision (b)(3), he failed to file "a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed." Instead, Fennelly filed his own statement of undisputed material facts, in which he proffered three facts:
(1) "From August 26, 2005 through August 26, 2007 [Fennelly] was unable to handle or make decisions decisions [sic] regarding his affairs, was depressed, confused, disoriented for at least 14 days and can't remember the days or events or what occurred for more than 14 days around the time of his wife's death and the details of why he was hospitalized."
(2) "From August 26, 2005 through August 26, 2007 [Fennelly] was unable to make or carry out important decisions regarding his affairs for more 14 days [sic] due to his incompetence and required assistance to handle his daily and personal affairs[.]"
(3) "From August 26, 2005 through August 26, 2007 [Fennelly] was unable to make or carry out important decisions regarding his affairs, including his inability to assist with his personal injury claim for more than 14 days due to his confusion, depression like [sic] symptoms, inability to communicate coherently, and incompetence to handle his personal affairs and make important and essential decisions regarding them."
In support of these statements, Fennelly filed his own declaration, his attorney's declaration, and the declaration of a friend, John Connor. The essence of these three declarations was that Fennelly has good days and bad days. On the bad days, he is unable to attend to his own affairs. And he had at least 14 of these bad days between the date of his accident and the date his complaint was filed. He was in the hospital for three days after the accident in August 2005 and then was also in the hospital in April 2006 after his wife's death. Attorney Richard E. Lehrfeld has represented Fennelly regarding the accident since 2005.
Fennelly also filed an unauthenticated Kaiser hospital discharge summary for his stay at the hospital in April 2006. The court, however, sustained Thayer's objection to this document.
The trial court issued a tentative ruling on the summary judgment motion. It concluded that no triable issue remains as to the statute of limitations because the facts submitted by Fennelly did not establish the timing of Fennelly's asserted insanity. The trial court also stated that a sufficient ground for granting the motion was Fennelly's failure to file a separate statement responding to the material facts set forth in Thayer's separate statement of undisputed facts.
Neither party requested oral argument, so the tentative decision became the final decision. The trial court entered judgment dismissing Fennelly's action.
STANDARD OF REVIEW
Summary judgment may be granted only when a moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 841 (Aguilar), the Supreme Court clarified the law that courts must apply in California in ruling on motions for summary judgment. If the motion is brought by a defendant, the defendant bears the burden of persuasion that "'one or more elements of'" the "'cause of action'" in question "'cannot be established,'" or that "'there is a complete defense.'" (Id. at p. 850, citing Code Civ. Proc., § 437c, subd. (o)(2).) In Aguilar,the Supreme Court stated that summary judgment law in California does not require that a defendant conclusively negate an element of the plaintiff's cause of action. Rather, in accordance with federal law, "[a]ll that the defendant need do is to 'show that one or more elements of the cause of action . . . cannot be established' by the plaintiff. [Citation.] In other words, all the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action -- for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively negate any such element -- for example, himself prove not X." (Aguilar, supra, 25 Cal.4th at pp. 853-854, fns. omitted, original italics.)
In addition to presenting evidence which negates an element of plaintiff's cause of action, "the defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence -- as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (Aguilar, supra, 25 Cal.4th at pp. 855, fn. omitted.)
Once a defendant has met its burden of showing that a cause of action has no merit, "'the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense. The plaintiff . . . may not rely upon the mere allegations of denials' of his 'pleadings to show that a triable issue of material fact exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' [Citation.]" (Aguilar, supra, 25 Cal.4th at p. 849.)
The plaintiff's burden in defeating a motion for summary judgment is only a burden of production and only a burden of making a prima facie showing of a triable issue of fact. (Aguilar, supra, 25 Cal.4th at p. 850.) "A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]" (Id. at p. 851.)
In broadly outlining the law of summary judgment, the Supreme Court stated: "If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case . . . the 'court should grant' the motion 'and avoid a . . . trial' rendered 'useless' by non-suit or directed verdict or similar device. [Citations.]" (Aguilar, supra, 25 Cal.4th at p. 855.)
"Statutes of limitation are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." (Parker v. Walker (1992) 5 Cal.App.4th 1173, 1188-1189.) The statute of limitations is not a disfavored defense, where it is used to promote appropriate policy considerations. (Hsu v. Mt. Zion Hospital (1968) 259 Cal.App.2d 562, 576 (Hsu).)
The limitations period for bringing an action for personal injury caused by another's negligence is two years. (Code Civ. Proc., § 335.1.) If, at the time the cause of action accrues, the plaintiff was "insane," the time of the disability is not counted toward the two years during which the action must be filed. (Code Civ. Proc., § 352, subd. (a).)*fn2 Because the complaint was filed more than two years after the accident in this case, a determinative issue in the case, and the principal issue on appeal, is whether a period of legal insanity on the part of Fennelly renders his complaint timely.
For purposes of Code of Civil Procedure section 352, the term "insane" means "a condition of mental derangement which renders the sufferer incapable of caring for his property or transacting business, or understanding the nature or effects of his acts. [Citations.]" (Hsu, supra, 259 Cal.App.2d at p. 571.) In Feeley v. Southern Pacific Transportation Co. (1991) 234 Cal.App.3d 949, for example, the court held that the plaintiff was "insane" during the 12 days he was rendered unconscious by the assault that formed the basis for his lawsuit. (Id. at p. 951-953.)
"No person can avail himself of a disability, unless it existed when his right of action accrued." (Code Civ. Proc., § 357.) Therefore, the continuous period of insanity from the time the cause of action accrued to the time sanity is restored is not considered in determining whether the action is brought within the limitations period. (Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 230-231.) A plaintiff's insanity that arises after the accrual of the cause of action does not interrupt the running of the statute of limitations. (Larsson v. Cedars of Lebanon Hospital (1950) 97 Cal.App.2d 704, 707.)
Applying these principles to the facts of this case, we conclude that Fennelly was not continuously insane for 12 days after the accident and, therefore, his action was untimely.
Concerning insanity, Fennelly's complaint states "[t]hat at times herein between August 26, 2005 and the date of filing herein, [Fennelly] was not mentally competent for a minimum of at least 14 days." This statement is not specific concerning when Fennelly was insane. It therefore is insufficient to establish that he was insane for 12 continuous days after the accident.
Thayer's statement of undisputed facts asserts that Fennelly has no facts to support his contention that he was mentally incompetent. In Fennelly's response to the motion, he states, again, that for 14 days, sometime during the period between the accident and the filing of the action, he was unable to make decisions concerning his own affairs. This response does not set forth facts, disputed or undisputed, that would support a conclusion that Fennelly was insane for 12 continuous days after the accident, the minimum needed to make his action timely. There is no reasonable inference to be made that at least 12 of the 14 asserted days of insanity occurred continuously after the accident.
Fennelly argues that there is no requirement that the insanity be continuous from the cause of action's accrual. For this proposition, he cites Hsu, supra, 259 Cal.App.2d at page 575, and Pearl v. Pearl (1918) 177 Cal. 303, at pages 305 to 307. Neither of those cases, however, discusses the requirement that the insanity be continuous from the cause of action's accrual. Accordingly, they are not apposite. (See People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198 [case not authority for proposition not considered].)
Therefore, the trial court did not err by granting summary judgment based on Fennelly's failure to file a timely complaint.
Because we conclude that Fennelly's complaint was untimely, we need not consider the trial court's alternative resolution of the motion for summary judgment against Fennelly based on his failure to file a response to Thayer's separate statement of undisputed facts. In any event, the trial court's reliance on this alternative ground was not an abuse of discretion. Code of Civil Procedure section 437c, subdivision (b)(3) requires the opposing party to file a response to the separate statement of undisputed facts and gives the trial court discretion to grant the motion based on this failure.*fn3 We perceive no abuse of discretion, especially since neither the complaint nor Fennelly's opposition to the motion set forth facts establishing the timeliness of the complaint.
The judgment is affirmed. Thayer is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: BLEASE , Acting P. J. HOCH , J.