FILED
NOT FOR PUBLICATION DEC 03 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GINA SANTANGELO, No. 10-56666
Plaintiff - Appellant, D.C. No. 2:01-cv-04210-CAS-
MAN
and
BRANDON BOISCLAIR, a minor by and MEMORANDUM*
through his guardian Paul Boisclair,
Plaintiff,
v.
BRIDGESTONE/FIRESTONE, INC.,
Defendant - Appellee,
and
BRIDGESTONE CORPORATION,
Defendant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted February 16, 2012
Pasadena, California
Before: PREGERSON and BEA, Circuit Judges, and PRATT, District Judge.**
Plaintiff-Appellant Gina Santangelo appeals the district court’s judgment
dismissing this case following a grant of Defendant-Appellee
Bridgestone/Firestone, Inc.’s (“Firestone”) motion for summary judgment.
Firestone based its motion on the one-year statute of limitations for personal injury
claims in California Code of Civil Procedure § 340(3) (West 1998), which the
parties agree governs Santangelo’s claims.1
Santangelo was injured on May 11, 1998, when the Ford Explorer driven by
her mother overturned. The alleged cause of the accident was tread separation of
the left rear tire, which had been manufactured by Firestone. Santangelo filed suit
on May 2, 2001, nearly three years later. Santangelo contends her claim did not
accrue and the limitations period did not begin to run until August 2000, when
defects in Firestone tires were widely reported by the media.
**
The Honorable Robert W. Pratt, District Judge for the U.S. District
Court for Southern Iowa, sitting by designation.
1
In 1998, California Code of Civil Procedure § 340(3) provided that actions
for personal injury had to be brought within one year.
2
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the
district court’s order granting a motion for summary judgment based on the statute
of limitations. Tucker v. Baxter Healthcare, 158 F.3d 1046, 1049 (9th Cir. 1998).
We affirm.
The question before us is when the statute of limitations began to run.
Under California law, accrual of a cause of action, triggering the statute of
limitations, generally begins “‘when, under the substantive law, the wrongful act is
done,’ or the wrongful result occurs, and the consequent ‘liability arises . . . .’”
Norgart v. Upjohn Co., 21 Cal. 4th 383, 397 (1999) (citations omitted). The
delayed discovery doctrine, however, “postpones accrual . . . until the plaintiff
discovers, or has reason to discover, the cause of action.” Id. (citations omitted).
A plaintiff “has reason to discover the cause of action when he has reason at least
to suspect a factual basis for its elements.” Id. at 398. (emphasis added) (citation
omitted).
Santangelo hired her first set of attorneys within a week of the accident. The
attorneys inquired into a California Highway Patrol accident report that mentioned
the tire tread separation, had the vehicle and tires impounded for preservation, and
engaged a tire failure analyst to inspect the tires to determine if the tread separation
was the result of defective manufacturing. All of this occurred in June of 1998.
3
This is when Santangelo’s attorneys first had knowledge of facts giving them
reason to suspect the tire might be defective; thus it is when the statute of
limitations began to accrue. Knowledge of these facts by Santangelo’s attorneys is
imputed to Santangelo because they were acting as her agent. Lazzarevich v.
Lazzarevich, 39 Cal. 2d 48, 50, 244 P.2d 1 (1952).2
Appellant cites Nelson v. Indevus Pharm., Inc., 142 Cal. App. 4th 1202,
1206 (Cal. Ct. App. 2006), for the proposition that a suspicion cannot be imputed
to the litigant. In Nelson, the Court of Appeal held that the statute of limitations
began to run when the plaintiff had a reason to discover her cause of action (when
she saw an attorney’s ad on television and had a test that revealed a defect in her
heart valve), not from the time when the danger of the drug was first publicized to
the public at large.3
2
While the client is charged with the neglect of his or her attorney, the
client is not without redress because in case of such wrongdoing the law provides
the client with a remedy against the attorney. Daley v. County of Butte, 227 Cal.
App. 2d 380, 391 (1964); Hummel v. Hummel, 161 Cal. App. 2d 272, 277, 326
P.2d 542 (1958). Thus, if Santangelo has any remedy at all, it would be against her
original attorneys for malpractice.
3
Cal. Ins. Guar. Ass’n v. Workers’ Comp. Appeals Bd., 163 Cal App 4th
853 (Cal. App. 2008), also cited by Santangelo, does not apply here. There, the
Court of Appeal was interpreting specific Worker’s Compensation statutes that
deal with the accrual of a cause of action. No such statute applies here.
4
The key difference between Nelson and this case, which the dissent ignores,
is that the general public had no duty to keep Nelson informed of facts that would
give a reasonable person a reason to suspect she might have a cause of action. The
general suspicion that the drug might cause heart problems was unknown to her,
and no one was under a duty to tell her. Thus, the public’s general suspicion could
not be imputed to her.
Here, however, Santangelo’s attorney did have a duty to keep his client
informed of all relevant facts. He was acting as her agent. Thus, under
Lazzarevich, we must impute Santangelo’s attorney’s knowledge of the facts which
demonstrate he had a reason to suspect the tire was defective to Santangelo. See
also Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103 (Cal. 1988) (holding that a plaintiff
who suspects wrongdoing but is unaware of any specific facts establishing
wrongful conduct on the part of the defendant, may not delay bringing an action
until she discovers such facts or their legal significance).
The fact that Santangelo, through her attorney, pursued an investigation into
whether the tire was defective supports the conclusion that Santangelo’s cause of
5
action began to accrue in June 1998, regardless of the ultimate fruits of that
investigation.4
The district court also correctly held the fraudulent concealment doctrine
does not apply because Sangtangelo was already on notice of her potential claim.
“The doctrine of fraudulent concealment [for tolling the statute of limitations] does
not come into play, whatever the lengths to which a defendant has gone to conceal
the wrongs, if a plaintiff is on notice of a potential claim.” Rita M. Roman
4
Santangelo relies on In re Bridgestone/Firestone, Inc., 200 F. Supp. 2d
983 (2002) (Mancuso). The plaintiffs in Mancuso did not hire an attorney and an
expert to look into possible tire defects, and they did not preserve the tires for
possible suit against the manufacturer. These facts distinguish Santangelo’s case
from Mancuso.
6
Catholic Archbishop, 187 Cal. App. 3d 1458, 1460 (1986); accord California
Sansome Co. v. U.S. Gypsum, 55 F.3d 1402, 1409 n.12 (9th Cir. 1995).5
AFFIRMED.
5
Our decision that the fraudulent concealment doctrine does not apply here
is supported by Mark K. v. Roman Catholic Archbishop, 67 Cal. App. 4th 63
(1998). There, several adult plaintiffs claiming to have been sexually abused as
minors by clergyman sued the archdiocese, alleging the archdiocese was negligent
in supervising and retaining the abusive clergy members, and fraud in a conspiracy
to suppress relevant facts. The trial court consolidated the actions and sustained
the archdiocese’s demurrer, without leave to amend. The Court of Appeal
affirmed, holding that: (1) the victims’ allegations that they first became aware of
certain facts related to the archdiocese’s conduct in 1996 were insufficient to toll
the applicable statutes of limitations; (2) the church’s breach of duty occurred at
time of abuse; (3) the victims’ injuries resulting from the church’s conduct were
incurred at the time of the abuse; and (4) the applicable statutes of limitations were
not tolled by reason of delayed accrual or estoppel by concealment. Here,
Santangelo is not suing another entity for attempting to cover up Firestone’s
conduct. Rather she asserts that Firestone attempted to cover up its own
negligence. But here, as in Mark K., Santangelo knew of her injury the moment it
happened, and she had reason to suspect the tire was defective as soon as her
attorney obtained the police report, hired a tire analyst, and obtained the car and
tires for inspection.
7
FILED
Santangelo v. Bridgestone/Firestone, Inc., No. 10-56666 DEC 03 2012
MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. In affirming the district court’s grant of Firestone’s
motion for summary judgment, the majority incorrectly ruled as a matter of law
that California’s one-year statute of limitations1 began to run in June 1998 when
Gina Santangelo’s attorneys sent to a tire failure analyst the Firestone Radial ATX
tires removed from Santangelo’s mother’s Ford Explorer. I believe that the statute
of limitations began to run in August 2000. That is when Santangelo learned,
through the national media, that Firestone decided to recall its Radial ATX tires.2
It was only when that recall was publicized in the national media that Santangelo
began to suspect that the accident, which killed her mother and brother and left her
severely injured, was caused by a defect in the Firestone Radial ATX tires and not
by her mother’s unsafe right turn in reaction to the tire tread separation, as stated in
1
On January 1, 2003, California Code of Civil Procedure § 335.1 went into
effect, extending the statute of limitations for personal injury and wrongful death
from one year to two years. Stats. 2002, ch. 448, §§ 2-3.
2
On August 9, 2000, Firestone announced a recall of approximately
14.4 million Radial ATX, ATX II, and Wilderness AT tires, which were used as
standard equipment on Ford Explorers. In December 2000, Firestone issued a
report acknowledging design flaws and problems with the manufacturing process
in the recalled tires.
the California Highway Patrol’s accident report.3
Shortly after the accident, Santangelo hired two attorneys to pursue a claim
against Santangelo’s mother’s insurance carrier, Farmers Insurance, not against
Firestone.4 In June 1998, Santangelo’s attorneys had the Firestone tires removed
from the wrecked Ford Explorer and sent the tires to a tire failure analyst. The
majority concludes that Santangelo’s attorneys first had knowledge of facts giving
them reason to suspect the tires might be defective in June 1998, when the
attorneys preserved the tires, engaged a tire failure analyst to inspect the tires, and
inquired into the California Highway Patrol’s accident report that mentioned the
tire tread separation. Maj. Op. at 3-4. The majority also concludes that
3
The California Highway Patrol’s accident report noted that the left rear tire
of the Ford Explorer suffered a tire separation “[d]ue to an unknown reason” and
Santangelo’s mother “overreacted by turning [the Ford Explorer] hard right where
she lost control.” The report also stated that three of the four tires on the vehicle
showed signs of rubber deterioration and should have been replaced. In the section
designated “Cause,” the report noted that Santangelo’s mother “caused this
collision by being in violation of [California Vehicle Code § 22107] – Unsafe
turning movement.”
4
The majority states that Santangelo hired her attorneys to look into possible
tire defects. Maj. Op. at 6 n.4. Santangelo has consistently stated that she hired
the attorneys to pursue a claim only against her mother’s insurance carrier, Farmers
Insurance.
2
Santangelo’s attorneys’ knowledge of these facts are imputed to Santangelo.5 Maj.
Op. at 4.
Knowledge that the left rear tire tread separated and that her attorneys sent
the Ford Explorer’s tires to a tire failure analyst does not demonstrate that
Santangelo suspected or should have suspected that her injuries were caused by
wrongdoing – here, a defect in the Firestone tires – rather than by her mother’s
negligent driving or another cause, such as a failure to properly maintain the tires.
See Ward v. Westinghouse Canada, Inc., 32 F.3d 1405, 1407 (1994)
(“[K]nowledge of an injury and its cause does not necessarily imply that any
wrongdoing has occurred or that anyone is to blame.”). This should be particularly
true here because Firestone consistently stated that “there was no evidence of a
defect” in the Radial ATX tires. Bridgestone/Firestone Tire Recall: Panel III of a
Hearing Before Subcomms. on Telecomms, Trade & Consumer Protection and
Oversight & Investigations of the H. Comm. on Commerce, 106th Cong. (2000)
(statement of Jacques Nasser, President and CEO, Ford Motor Company). Even
the Ford Motor Company, which equipped its Ford Explorer with Firestone Radial
5
Even if Santangelo’s attorneys suspected that the tire was possibly
defective, her attorneys’ suspicion is not imputed to Santangelo. See Restatement
(Third) Of Agency § 5.03 (2006) (stating that an agent’s knowledge of a fact, not
mere suspicion, is imputed to the principal).
3
ATX tires, did not discover conclusive evidence that the tires were defective until
Ford “literally pried the data from Firestone’s hands” and Ford’s engineers
analyzed the data themselves. Id. This was just days before the Firestone Radial
ATX tire recall in August 2000. Id.
Moreover, “[i]t would be contrary to public policy to require” Santangelo
“to file a lawsuit at a time when the evidence available to [her] failed to indicate a
cause of action.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 815 (2005)
(citation and internal quotation marks omitted). One of Santangelo’s attorneys
testified in a deposition that the tire failure analyst told him that there were no
“defects in the tire that would have caused the tread separation, nothing in the
design, manufacture, components . . . .” Therefore, after the tire failure analyst
presented his conclusions to Santangelo’s attorneys, the attorneys knew that there
were no manufacturing or design defects in the Firestone tires that would have
caused the tread separation.6
The attorney’s subsequent actions reinforce his testimony that the tire failure
analyst told him that the was no defect in the tire. About a year after the accident,
6
There is a genuine issue of material fact here. The tire failure analyst
denied telling Santangelo’s attorney that the tire was not defective. Because we
draw all factual inferences in favor of the non-moving party, we only should
consider Santangelo’s attorney’s statement that the tire failure analyst told him that
the tire was not defective.
4
Santangelo’s attorney informed Farmers Insurance that the tire investigation did
not “pan out,” and the attorney pursued a claim against Farmers Insurance,
recovering the maximum policy limit of $100,000. The attorney also advised the
tire failure analyst that the case was closed, and the tire failure analyst disposed of
the tire. Thus, it would have been a frivolous lawsuit had Santangelo filed a
complaint against Firestone after the tire failure analyst reported that there was no
manufacturing or design defect in the tire. Id.
The statute of limitations was not triggered in June 1998. Because there was
an investigation which disclosed only that Santangelo’s mother’s overcorrection
caused the accident, and not that there was a tire defect, the discovery rule
postpones the statute of limitations on the newly discovered manufacturing defect
claim against Firestone. Id. at 813 (“[I]f a plaintiff’s reasonable and diligent
investigation discloses only one kind of wrongdoing when the injury was actually
caused by tortious conduct of a wholly different sort, the discovery rule postpones
accrual of the statute of limitations on the newly discovered claim.”).
When the evidence is viewed in the light most favorable to Santangelo, it is
clear that the statute of limitations did not begin to run until Santangelo learned of
the nationwide recall of Firestone Radial ATX tires in August 2000. Because
Santangelo filed the present complaint against Firestone in April 2001, within one
5
year of the August 2000 Firestone tire recall, she filed within the one-year statute
of limitations period. Thus, I would reverse the district court’s grant of summary
judgment in favor of Firestone and remand for further proceedings.
6