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NOT FOR PUBLICATION DEC 03 2012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