Filed 6/2/22 Pantaleon v. L.A. Dept. of Water and Power CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MARTIN PANTALEON et al., B308366
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 20STCV01851)
v.
LOS ANGELES DEPARTMENT
OF WATER AND POWER,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Mary H. Strobel, Judge. Affirmed.
The Agopoglu Law Corporation and Berc Agopoglu for
Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Scott Marcus, Chief
Assistant City Attorney, Blithe S. Bock, Managing Assistant City
Attorney, and Shaun Dabby Jacobs, Deputy City Attorney for
Defendant and Respondent.
_______________________
Martin Pantaleon, Richard D. Pantaleon, Richard L.
Pantaleon Vergara, Jadira Y. Vergara, Miriam Fajardo, Maria
Pantaleon, Jadira Vergara, and Juan Pantaleon (appellants) filed
a petition pursuant to Government Code1 section 946.6 for relief
from the Government Claims Act (§ 810 et seq.) requirement that
a plaintiff present a timely claim to the Los Angeles County
Department of Water and Power (LADWP) before bringing a tort
action against it (§§ 911.2, 945.4). Appellants had filed an
application for relief from the timely filing requirement. But this
application for relief was, itself, untimely. The trial court denied
the petition on the ground that because the application for relief
was itself untimely, the court lacked jurisdiction to act. The
court went on to hold that even if the court had jurisdiction,
appellants had not shown their failure to timely file their claim
was a result of mistake, inadvertence, surprise, or excusable
neglect.
The trial court correctly found it was without jurisdiction to
grant relief. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
According to appellants’ petition, their claim against
LADWP arose from a house fire on February 19, 2018.
Appellants allege that as a result of the fire, they sustained
personal injuries and damages, including property damage,
physical injuries, and emotional distress. They allege that
firefighters who responded to the fire told appellants they
believed electrical wires maintained by “Edison” (presumably
1 All statutory references are to the Government Code.
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Southern California Edison) caused the fire. Electric power to
the house was, in fact, provided by LADWP.
In February 2018, appellants hired an attorney to
represent them. According to the attorney, his firm was hired
specifically “to sue Edison” for causing the fire “based on
fraudulent concealment.” The record is silent as to what
activities, if any, counsel or appellants undertook to ascertain the
party responsible for the maintenance of the wires alleged to
have caused the fire.
In May 2019, appellants saw LADWP workers servicing
electrical wiring in the area of the home. According to counsel,
appellants “then hired our office for the possible LADWP
involvement,” and on May 19, 2019, counsel presented appellants’
claims to LADWP. LADWP returned the claims without action
because they had not been presented within the time allowed by
law. Appellants then applied on June 3, 2019, for leave to
present late claims. They received no response within 45 days, as
a result of which the claims were deemed denied by LADWP
pursuant to section 911.6, subdivision (c).
On January 15, 2020, appellants petitioned the trial court
for relief from the claim presentation requirements. The court
found appellants’ claim arose on the day of the fire, February 19,
2018, and their application to present a late claim was not filed
until more than one year after the accrual of their causes of
action. Accordingly, the court ruled it lacked jurisdiction to grant
appellants’ petition because their late claim application had not
been timely filed. Additionally, the court found that even if it did
have jurisdiction to grant relief, it would not do so because
appellants failed to demonstrate their failure to timely file a
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claim was a result of mistake, inadvertence, surprise, or
excusable neglect. Appellants timely appeal.
DISCUSSION
I. Applicable Law
“ ‘ “The Government Claims Act (§ 810 et seq.) ‘establishes
certain conditions precedent to the filing of a lawsuit against a
public entity. As relevant here, a plaintiff must timely file a
claim for money or damages with the public entity. (§ 911.2.)
The failure to do so bars the plaintiff from bringing suit against
that entity. (§ 945.4.)’ ” ’ ” (Le Mere v. Los Angeles Unified School
Dist. (2019) 35 Cal.App.5th 237, 246.)
Section 911.2, subdivision (a) provides that claims against a
public entity for injury to persons or personal property “shall be
presented . . . not later than six months after the accrual of the
cause of action.” A claimant who has failed to present a claim
during the six-month time period may make “a written
application . . . to the public entity for leave to present that
claim.” (§ 911.4, subd. (a).) The application must be made
“within a reasonable time not to exceed one year after the accrual
of the cause of action and shall state the reason for the delay in
presenting the claim.” (§ 911.4, subd. (b).) If the application is
denied, a claimant may petition the trial court pursuant to
section 946.6 for relief from the claims presentation requirement.
(§ 946.6, subd. (a).)
“Section 946.6 provides a procedure for relieving a party
from the condition precedent of presenting a timely claim to a
public entity before commencing an action against the public
entity on the cause of action contained in the claim. [Citation.]
In order to obtain relief, the party must establish that an
application to the public entity for leave to file a late claim
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(§ 911.4) was filed in a reasonable period of time (not to exceed
one year) after the accrual of the cause of action for reasons of
inadvertence, mistake, surprise, or excusable neglect akin to the
showing necessary for relief from default.” (DeVore v.
Department of California Highway Patrol (2013) 221 Cal.App.4th
454, 459 (DeVore).)
“When an application to file a late claim is itself not timely
filed, . . . the court is without jurisdiction to grant relief under
section 946.6.” (County of Los Angeles v. Superior Court (2001)
91 Cal.App.4th 1303, 1314, superseded by statute on other
grounds as stated in In re Nicole H. (2011) 201 Cal.App.4th 388,
400, fn. 12.) An order denying a section 946.6 petition is an
appealable order. (DeVore, supra, 221 Cal.App.4th at p. 459.)
II. Appellants’ Causes of Action Accrued February 19,
2018
In order for a trial court to relieve a petitioner from the
claim presentation requirements of section 945.4, the court must
find, inter alia, that the petitioner’s application to present a late
claim to the public entity was made within a reasonable time not
to exceed one year after the cause of action accrued. (§§ 946.6,
subd. (c); 911.4, subd. (b).) In most circumstances, a cause of
action accrues “ ‘when the act occurs which gives rise to the claim
[citation], that is, when “the plaintiff sustains actual and
appreciable harm. [Citation.] Any ‘manifest and palpable’ injury
will commence the statutory period.” ’ ” (Costa Serena Owners
Coalition v. Costa Serena Architectural Com. (2009)
175 Cal.App.4th 1175, 1195–1196; see also Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 [cause of
action accrues when it is complete with all of its elements:
wrongdoing, harm, and causation].) When a cause of action
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accrues is a question of fact, and the trial court’s finding on the
accrual of a cause of action is upheld on appeal if supported by
substantial evidence. (Institoris v. City of Los Angeles (1989)
210 Cal.App.3d 10, 17.)
In their petition, appellants acknowledged their claim
against LADWP “arises from [a] house fire that occurred on
February 19, 2018.” Appellants’ declaration in support of their
application to file a late claim states that on February 19, 2018, a
fire burned the house and “caused severe property and emotional
distress damages to us.” Also on that date, firefighters on the
scene told appellants they believed the fire was caused by
electrical wiring and that Edison maintained those wires. As
appellants sustained their injuries on the day of the fire and the
elements of their causes of action were complete at that time, the
trial court properly concluded that the causes of action accrued on
February 19, 2018, the day of the fire.
Appellants, however, argue their claims did not accrue on
the date of the fire because of “fraudulent concealment.”
According to appellants, the firefighters made a fraudulent
representation when, after extinguishing the fire, they said they
believed the fire began with electrical wires maintained by
Edison. Appellants contend that under the delayed discovery
doctrine, their claim did not accrue until over a year later in May
2019, when they saw LADWP workers servicing electrical lines in
their area and realized their electrical provider could be
responsible for maintenance of the electrical system.
Appellants’ argument is meritless. First, appellants allege
no facts supporting their claim that the firefighters were aware
that the electrical lines were maintained by LADWP, but
fraudulently concealed that fact from them. Second, application
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of the delayed discovery doctrine requires appellants to show
“ ‘ “the inability to have made earlier discovery despite
reasonable diligence.” ’ ” (Grisham v. Philip Morris U.S.A., Inc.
(2007) 40 Cal.4th 623, 638.) Appellants have made no showing
they used reasonable diligence but still could not have discovered
earlier that LADWP maintained the electrical lines. Their
opening brief makes a conclusory assertion that “[D]espite the
attorney’s effort, the attorney has not heard any news about who
is responsible for the maintenance of the electrical wires and
electrical posts at close proximity to the house.” But appellants
say nothing about any specific inquiries or actions they or their
counsel undertook to ascertain the party responsible for the wire
and post maintenance. Instead, they complain they “have not
received any incident reports from the Fire Department or
LADWP.” They neither cite authority indicating they were owed
such reports nor do they offer argument as to how the absence of
those reports relieve them of their obligation to investigate the
proper party against whom to make a claim. Moreover, LADWP
was appellants’ electrical provider, and they were reminded
periodically of that fact after the fire because LADWP continued
to bill them. The trial court correctly concluded appellants did
not exercise reasonable diligence when they provided no
information about any investigation they undertook into
ascertaining the identity of the party responsible for the electrical
wiring. There is no substantial evidence to support appellants’
accrual argument. They have failed to establish their causes of
action accrued later than February 19, 2018.
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III. The Trial Court Was Without Jurisdiction to Grant
the Petition
Because appellants’ causes of action accrued on February
19, 2018, and it is undisputed they filed their application to
present a late claim more than one year later on June 3, 2019,
they failed to satisfy the requirement that the application to
present a late claim to the public entity be made within a
reasonable time not to exceed one year after the causes of action
accrued. (§§ 946.6, subd. (c); 911.4, subd. (b).)
Appellants argue that because Richard L. Pantaleon
Vergara2 was a minor for the entirety of the time set forth by
statute for the presentation of the claim, he is entitled to have
the petition granted as to him pursuant to sections 911.6 and
946.6. Section 911.6, subdivision (b)(2) does state that a public
entity “shall” grant a late claim application if “[t]he person who
sustained the alleged injury, damage, or loss was a minor during
all of the time . . . for the presentation of the claim.” (§ 911.6,
subd. (b)(2).) However, “section 911.4’s requirement that the
late-claim application be presented within a ‘reasonable time’ is
applicable even to late-claim applications by minors.”
(Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020,
1029.) Accordingly, the California Supreme Court has held that
“[a] minor is entitled to relief whether or not the minor’s parents
2 Appellants claim the minor appellant is named Richard D.
Pantaleon. However, the record indicates Richard D. Pantaleon
is Richard Daby Pantaleon, born in 1995 and therefore not a
minor at any time relevant to this petition. Appellant Richard L.
Pantaleon Vergara, however, was born in 2017. We assume
appellants intended this argument to pertain to minor Richard L.
Pantaleon Vergara and discuss the issue as to him.
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or counsel acted diligently, so long as the application is made
within the year after the cause of action accrued.” (J.M. v.
Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648,
652, italics added.) As Richard L. Pantaleon Vergara’s
application to present a late claim, like the applications of the
other appellants, was not filed within one year of accrual of his
cause of action, he is not entitled to relief pursuant to these
provisions.
The trial court properly concluded it was without
jurisdiction to grant the petition.3 (County of Los Angeles v.
Superior Court, supra, 91 Cal.App.4th at p. 1314 [court lacks
jurisdiction to grant relief under section 946.6 when the
application to file a late claim was not timely filed].)
3 Our conclusion that the trial court lacked jurisdiction to
grant relief makes it unnecessary to address appellants’ other
arguments.
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DISPOSITION
The order is affirmed. Respondent shall recover its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
HARUTUNIAN, J.
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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