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).)
2
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.
9