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Bastian v. Cty. of San Luis Obispo - 199 Cal. App. 3d 520, 245 Cal. Rptr. 78 (1988)


In order to raise the issue of belated discovery, the plaintiff must state when the discovery was made, the circumstances behind the discovery, and plead facts showing that the failure to discover was reasonable, justifiable and not the result of a failure to investigate or act. The test for belated discovery is whether the plaintiff has information of circumstances sufficient to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his or her investigation. If plaintiff believes because of injuries she has suffered that someone has done something wrong, such a fact is sufficient to alert a plaintiff to the necessity for investigation and the pursuit of her remedies.


Plaintiff appellant newspaper photographer brought an action for negligence and intentional misrepresentation against defendants respondents county and its deputy sheriff after the deputy admitted that he had placed an empty vodka bottle next to a car accident victim's body before the photographer had photographed the accident scene. After the photograph's publication, the photographer was fired and the victim's survivors sued the newspaper and the photographer for intentional infliction of emotional distress; the deputy's admission occurred in the course of that suit. In the instant action, the trial court dismissed the complaint on the grounds of an untimely tort claim; lack of a duty owed by the deputy to the photographer; and Cal. Gov. Code, §§ 818.8, 822.2 (immunity for government employee misrepresentations). The photographer sought review of the judgment, contending that the trial court erred in sustaining the demurrer on the grounds of an untimely filing because, once properly pleaded, belated discovery was a question of fact.


Where the plaintiff's complaint raises the issue of belated discovery, should the defendant's demurrer be sustained on the grounds of an untimely filing?




The Court of Appeal of California affirmed the judgment of dismissal regarding the photographer's willful misconduct claim because it was insufficiently pled. However, the Court reversed the judgment of dismissal as to the cause of action for negligence because the action was not time-barred and no special relationship had to exist between appellant and respondent county for appellant to assert a valid cause of action for negligence. The Court held that the tort claim though filed nearly three years after the accident and over two years after the commencement of the survivors' suit, was not untimely under the belated discovery doctrine because appellant photographer demonstrated that his failure to earlier discover the basis of his claim was reasonable, justifiable, and not the result of a failure to investigate or act. According to the Court, the alleged facts raised by the photographer were sufficient to establish the pleading requirement; thus, it raised the issue of belated discovery. The survivors' lawsuit gave the photographer a reason to investigate, but it did not put him on notice that he had a cause of action against the County. To find as a matter of law that the photographer was not diligent because he was unsuccessful in his efforts to discover the truth would encourage other plaintiffs to file suits against government entities even though a diligent investigation fails to uncover facts that give rise to a cause of action. The belated discovery rule protects the plaintiff, whose cause of action is preserved when, despite diligent investigation, he is blamelessly ignorant of the cause of his injuries.

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