California Court of Appeals, Fourth District, First Division
PROCEEDINGS in mandate challenging an order of the Superior
Court of San Diego County No. 37-2016-00014529-CU-PO-CTL
overruling a demurrer. Eddie C. Sturgeon, Judge. Petition
granted in part.
Lance Boyer & Banach, Ethan T. Boyer; Higgs Fletcher
& Mack and John Morris for Petitioner.
D. Adelman; Dentons U.S. and Charles A. Bird for Real Party
McCONNELL, P. J.
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).) 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. Sutherland alternatively contends, if the
Clause does require compliance with the provision, he can
amend the complaint to plead facts showing
agree the superior court should have sustained Oregon
State's demurrer because the Oregon Tort Claims Act's
claims notice provision is entitled to full faith and credit
in California. The provision does not conflict with or
violate California's public policy and declining to give
the provision full faith and credit would evince an
impermissible policy of discriminatory hostility to the
provision. As Sutherland has belatedly demonstrated he can
plead facts showing compliance with the provision, we grant
the petition in part and direct the superior court to vacate
its order overruling Oregon State's demurrer and enter a
new order sustaining the demurrer with leave to amend.
complaint asserts causes of action for negligence and
negligent misrepresentation against Oregon
State. 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
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 Oregon Tort Claims Act's claims
notice provision. Oregon State argued the Clause requires
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.
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) and both acts share
similar governmental purposes. Conversely, not applying the
Oregon Tort ...