Filed 11/8/17; Opinion on rehearing (reposting to provide correct docket number) 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 in part.

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. Sutherland alternatively contends, if the Clause does require compliance with the provision, he can amend the complaint to plead facts showing compliance.2

We 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.

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 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

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.6 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 A 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,

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." 6 The Oregon Tort Claims Act's damages cap provision (Or. Rev. Stat. Ann. § 30.271) is distinct from its claims notice provision. The parties have not provided nor have we located any authority requiring both provisions to be entitled to full faith and credit in order for either provision to be entitled to full faith and credit. As the claims notice provision is the only provision directly before us in this writ proceeding, we confine our analysis to this provision. 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. at p. 1281.) 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, at pp. 494–495.)

California is undoubtedly competent to legislate on the subject matter of personal injuries to one of its citizens within its borders. (Hyatt I, supra, 538 U.S. at p. 494.)

California also 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

6 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 (See Gov. Code, §§ 911.2, subd. (a), 945.4).

Moreover, 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 Or.App. 478 [348 P.3d 301, 307]; Robinson v. Shipley (1983) 64 Or.App. 794 [669 P.2d 1169, 1171]; with Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 200; Nelson v. Superior Court (2001) 89 Cal.App.4th 565, 573.) Further, 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.7 (Compare Or. Rev. Stat. Ann. §§ 174.109, 174.117, subd. (1)(i), 30.260, subd. (4)(a), with Gov. Code, § 811.2.)

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.)

Clause. (See id. at p. 1282.) Consequently, we conclude the superior court erred by overruling Oregon State's demurrer.8 B This conclusion does not end our inquiry. We must further determine whether Sutherland has demonstrated a reasonable possibility he can cure the pleading defect by amendment. (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010; Green Valley Landowners Assn. v. City of Vallejo, supra, 241 Cal.App.4th at p. 432.)

To comply with the Oregon Tort Claims Act's claims notice provision, a plaintiff must file a claim or a complaint within 180 days after his injury. (Or. Rev. Stat. Ann. § 30.275, subds. (1), (2)(b), (3)(c).) The 180-day period does not begin to run until the plaintiff has had reasonable opportunity to discover his injury and the identity of the responsible party. (Doe v. Lake Oswego Sch. Dist. (2013) 353 Ore. 321 [297 P.3d 1287, 1292]; Adams v. Oregon State Police (1980) 289 Ore. 233 [611 P.2d 1153, 1156].) " '[A]n "injury" is discovered when a plaintiff knows or should have known of the existence of three elements: (1) harm; (2) causation; and (3) tortious conduct.' " (Turner v. State (2015) 270 Ore.App. 353 [348 P.3d 253, 257] (Turner).)

"Application of the discovery rule gives a plaintiff a reasonable opportunity to become aware of his or her claim. [Citation.] The point in time when an investigation

"Generally speaking, the factual determination of when a reasonable person would have been aware of the substantial possibility of the elements of a claim is a jury question." (Turner, supra, 348 P.3d at p. 258.) "A court cannot decide that question as a matter of law unless the only conclusion that a reasonable trier of fact could reach is that the plaintiff knew or should have known the critical facts at a specified time." (Doe v. Lake Oswego Sch. Dist., supra, 297 P.3d at p. 1295.)

Here, relevant to the discovery rule, Sutherland's operative complaint alleges, on the morning of the accident, Sutherland was presented with bills of lading showing Oregon State had two stack containers, each weighing 14,500 pounds. Sutherland successfully loaded the first stack container, but when he started loading the second stack container, which did not have its weight marked on its side, he noticed it felt much heavier than the first one. He tried to return it to the ground when the crane tipped over and crushed him.

These allegations indicate Sutherland had knowledge on the day of the accident that conduct by Oregon State may have caused him harm. However, "mere knowledge that governmental conduct caused harm is insufficient to commence the [180-day claims notice period]; the plaintiff must also reasonably know the tortious nature of the

governmental conduct—that the conduct was negligent or intentionally harmful." (Turner, supra, 348 P.3d at p. 258.)

Sutherland contends he can add allegations to the complaint indicating (1) he was not allowed access to the crane or to witness interviews until after the conclusion of proceedings before the California Department of Industrial Relations Division of Occupational Safety and Health; (2) once he had access to this information, he found evidence suggesting the second stack container was overweight because Oregon State caused or allowed it to take on water; (3) this was his first notice of the tortious nature of Oregon State's conduct; and (4) he filed his complaint within 180 days of learning this information. Oregon State denies the truth of these allegations and will undoubtedly vigorously contest them at an appropriate point in the superior court. Nonetheless, for purposes of determining whether Sutherland should be granted leave to amend the complaint, these allegations satisfy Sutherland's burden of demonstrating a reasonable possibility he can cure the complaint's pleading defect by amendment.

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 with leave to 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.