LAOSD
Asbestos Cases
Filed 5/2/13 LAOSD Asbestos
Cases CA2/2
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LAOSD
ASBESTOS CASES
B241095
(JCCP No. 4674;
Los Angeles County Super. Ct.
No. BC469790)
APPEAL from a judgment of the Superior Court of
County. Emilie H.
Elias, Judge. Reversed.
Brayton Purcell, Alan R. Brayton,
Gilbert L. Purcell, and Lloyd F. LeRoy for Plaintiff and Appellant Barbara Ann
Curran.
Carmen A. Trutanich, City Attorney,
Richard M. Brown, General Counsel for Water and Power, and Lisa S. Berger,
Deputy City Attorney for Defendant and Respondent City of Los Angeles acting by
and through the Los Angeles Department of Water and Power.
Barbara Ann Curran (appellant)
appeals from a final judgment entered in favor of the City of Los Angeles
acting by and through the Los Angeles Department of Water and Power
(collectively “the cityâ€) after the trial court sustained, without leave to
amend, the city’s demurrer to appellant’s complaint.
trial court erred in granting the demurrer on the ground that appellant did not
timely file a claim under the Government Claims Act (Gov. Code, § 900 et seq.)
(hereafter “the Actâ€).
name="_ftnref2" title="">[2] We find that the complaint
sufficiently alleges facts suggesting that the city waived the defense of
untimeliness under section 911.3, subdivision (b). We therefore reverse.
Richard Curran performed maintenance
and repair work at the Los Angeles Department of Water and Power’s Haynes
Powerhouse in Seal Beach, California from 1965 through the 1970’s. He insulated cokers, heat exchangers, piping,
pumps, boilers and valve fittings. Mr.
Curran applied asbestos-containing block and pipe covering; insulation; and
fibrous adhesive.
Mr. Curran also performed various
jobs as an electrician at the Los Angeles Water Treatment Plant and the Los
Angeles County Sewer Treatment plant.
This work included the installation of electrical wiring, which involved
running, splicing and installing high voltage, asbestos-insulated wiring and
cable. As an employee of Owens Corning
Fiberglas in the 1970’s, Mr. Curran worked at the Los Angeles Department of
Water and Power’s Scattergood Powerhouse in El Segundo, California. There, he performed insulation repair and
replacement work throughout the powerhouse, which included cutting and
installing asbestos-containing pipe and block insulation. He also cut and installed asbestos cloth and
mixed and applied asbestos-containing insulation cement.
In the complaint in this action,
appellant alleged that the city knew or should have known of the dangerous
working conditions at the aforementioned premises, and negligently failed to
abate or correct the hazardous conditions or warn Mr. Curran of the existence
of the dangerous conditions.
Mr. Curran was diagnosed with
asbestosis and asbestos-related pleural disease on December 11, 2009. Mr. Curran died on July 19, 2012.
Appellant filed the complaint
against the city on September 16, 2011. In it, appellant alleged that he complied
with the Act. Specifically, appellant
alleged: “On February 23, 2011, within the period for filing a claim, Plaintiff presented a claim
for personal injury to Defendant.â€
Appellant further alleged: “As of the filing of this Complaint, Defendant
has failed to comply with California Government Code sections 912.4 in that
Defendant has not responded to the merits of the claim within the 45 days after
presentation of the claim.â€
Appellant asserted that his claim
was timely filed under section 901.
Appellant explained that section 901 states that the date of accrual of
a cause of action to which a claim relates is the same date upon which the
cause of action would be deemed to have accrued under the statute of
limitations which would be applicable if there were no requirement that a claim
be presented. (§ 901.) Thus, appellant explained, the accrual date
is based on Code of Civil Procedure section 340.2, which states that the time
for commencement of a civil action for injury or illness based on exposure to
asbestos is “the later of the following:
[¶] (1) Within one year after the date the plaintiff first suffered
disability; [¶] (2) Within one year after the date the plaintiff either knew,
or through the exercise of reasonable diligence should have known, that such
disability was caused or contributed to by such exposure. [¶] . . .
‘Disability’ . . . means the loss of time from work as a result of such
exposure which precludes the performance of the employee’s regular occupation.†(Code Civ. Proc., §340.2, subds. (a) &
(b).)
Appellant alleged that because he
had retired from work at his regular retirement age, he “suffered no disability
from his asbestos-related disease as defined in [Code of Civil Procedure]
section 340.2 and may pursue claims at any time without bar.â€
On January 23, 2012, the city filed
a demurrer to plaintiff’s complaint. The
city argued that appellant failed to state a cause of action because he did not
allege compliance with, or excuse from, the six-month claim presentation
requirement. The city pointed out that
Mr. Curran was diagnosed with asbestos-related disease on December 11,
2009. Thus, the city argued, any cause
of action related to that injury accrued on that date. The city’s position was that any claim
pertaining to a cause of action for personal injury must have been filed within
six months of that date, or June 11, 2010.
Alternatively, the city argued, appellant could have sought leave to
present a late claim within one year.
Since appellant did not present his claim until February 23, 2011, the
city argued, his complaint failed to state a cause of action against the city.
On February 7, 2012, appellant filed
an opposition to the city’s demurrer.
Appellant argued that the statute had not yet begun to run on Mr.
Curran’s claims. The applicable statute
of limitations, appellant argued, is Code of Civil Procedure section 340.2,
which begins to run when a person becomes “disabled†due to his exposure to
asbestos. Further, appellant argued, the
city conceded that Mr. Curran had not been “disabled†by his asbestos-related
disease within the meaning of Code of Civil Procedure section 340.2. Because his cause of action had not accrued
under Code of Civil Procedure section 340.2, appellant argued, his six-month
time limit for filing a claim had also not begun to run. Appellant attempted to distinguish
Cal.4th 1127, 1144-1145.) In
clear that there is a difference between the “accrual of a cause of action for
asbestos-related injury†and “the beginning of the limitations period
prescribed by [Code of Civil Procedure] section 340.2.†(Ibid.) Appellant argued that the
the term “accrue†in section 901.
The city filed a reply brief on
February 10, 2012. The city argued that
the Hamilton court held that Code of
Civil Procedure section 340.2 extended only the statute of limitations for
filing an asbestos-related cause of action, and that it did not change the date
on which the cause of action accrues.
The demurrer was heard on Thursday,
February 23, 2012. The court agreed with
the city’s position that the claim had to be filed within six months of
accrual, and that the accrual date was different from the commencement of the
running of the statute of limitations under Code of Civil Procedure section
340.2. The city’s demurrer was sustained
without leave to amend. A final judgment
of dismissal was entered on June 25, 2012.
Appellant’s appeal, filed May 8, 2012, was treated as an appeal from the
June 25, 2012 judgment of dismissal.
I. Standard of
review
“On appeal from a judgment
dismissing an action after sustaining a demurrer without leave to amend, the
standard of review is well settled. The reviewing
court gives the complaint a reasonable interpretation, and treats the demurrer
as admitting all material facts properly pleaded. [Citations.]
The court does not, however, assume the truth of contentions, deductions
or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of
the several grounds of demurrer is well taken.
[Citations.]’ [Citation.] However, it is error for a trial court to
sustain a demurrer when the plaintiff has stated a cause of action under any
possible legal theory. [Citation.] And it is an abuse of discretion to sustain a
demurrer without leave to amend if the plaintiff shows there is a reasonable
possibility any defect identified by the defendant can be cured by
amendment. [Citation.]†(Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The legal sufficiency of the complaint is
reviewed de novo. (Montclair Parkowners Assn. v. City of Montclair (1999) 76
Cal.App.4th 784, 790.)
On demurrer, a trial court’s stated
reasons for its judgment do not limit our review. An appellate court may consider new theories
on appeal from the sustaining of a demurrer to challenge or justify the
ruling. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880, fn.
10 (Cantu).)
II. Requirements of the Act
The
Act confines potential government liability to “‘“rigidly delineated
circumstances.â€â€™â€ (Zeliq v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127.) Specifically, the Act prescribes the time and
procedure for filing claims against the government, and the conditions under
which the government may be sued. (
Cal.App.3d 808, 811.) The Act requires
that, before filing a complaint seeking money or damages against a governmental
entity, (1) the plaintiff must present the claim to the relevant governmental
entity; and (2) the entity must reject the claim. (See §§ 910, 911.2, 912.4, 912.6, 945.4.)
“Generally
speaking, no suit for money or damages may be brought against a public entity
on a cause of action for which a claim is required to be presented until a
written claim 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. . . . [¶] Under . . . section 945.4, presentation of a
timely claim is a condition precedent to the commencement of suit against a
public entity.†(Munoz v. State of California (1995) 33 Cal.App.4th 1767,
1776-1777.)
Section
911.2, subdivision (a), states that “[a] claim relating to a cause of action
for death or for injury to person or to personal property . . . shall be
presented as provided in Article 2 (commencing with Section 915) not later than
six months after the accrual of the cause of action.†Section 901 discusses the meaning of the term
“accrualâ€:
“For
the purpose of computing the time limits prescribed by Sections 911.2, 911.4,
945.6, and 946.6, the date of the accrual of a cause of action to which a claim
relates is the date upon which the cause of action would be deemed to have
accrued within the meaning of the statute of limitations which would be
applicable thereto if there were no requirement that a claim be presented to
and be acted upon by the public entity before an action could be commenced
thereon.â€
Once
a potential plaintiff files a claim -- even if the claim is untimely -- the
government has an obligation to respond or suffer a waiver of the defense of
untimeliness. Section 911.3 provides:
“(a)
When a claim that is required by Section 911.2 to be presented not later than
six months after accrual of the cause of action is presented after such time
without the application provided in Section 911.4, the board or other person
designated by it may, at any time within 45 days after the claim is presented,
give written notice to the person presenting the claim that the claim was not
filed timely and that it is being returned without further action. The notice shall be in substantially the
following form:
“‘The
claim you presented to the (insert title of board or officer) on (indicate date)
is being returned because it was not presented within six months after the
event or occurrence as required by law.
See Sections 901 and 911.2 of the Government Code. Because the claim was not presented within
the time allowed by law, no action was taken on the claim.
“Your
only recourse at this time is to apply without delay to (name of public entity)
for leave to present a late claim. See
Sections 911.4 to 912.2, inclusive, and Section 946.6 of the Government
Code. Under some circumstances, leave to
present a late claim will be granted.
See Section 911.6 of the Government Code.
“You
may seek the advice of an attorney of your choice in connection with this
matter. If you desire to consult an
attorney, you should do so immediately.’
“(b)
Any defense as to the time limit for presenting a claim described in
subdivision (a) is waived by failure to give the notice set forth in
subdivision (a) within 45 days after the claim is presented, except that no
notice need be given and no waiver shall result when the claim as presented
fails to state either an address to which the person presenting the claim
desires notices to be sent or an address of the claimant.â€
Thus,
under section 911.3, the filing of an untimely claim “triggers a duty by the
public entity to notify the potential claimant of the claim’s insufficiency
stating, with particularity, the defects or omissions. If the public entity fails to send this
notice, it waives any defenses as to
the sufficiency of the claim based upon a defect or omission.†(Green
v. State Center Community College Dist. (1995) 34 Cal.App.4th 1348, 1354,
fn. omitted.)
III. Waiver of the defense
of untimeliness under section 911.3
In
the complaint, appellant alleged that he presented his claim to the city on
February 23, 2011. Appellant further
alleged that the city did not respond to the claim within the required
statutory time frame. Because we are
reviewing a demurrer, we must assume these facts are true. (Luther
v. Countrywide Financial Corp. (2011) 195 Cal.App.4th 789, 793.)
Appellant
argues that, based on these facts, the city has waived its defense of
untimeliness pursuant to section 911.3, subdivision (b).
support this argument. Thus, the
demurrer was not properly sustained on the ground that appellant’s claim was
not timely filed.
In
response, the city makes the following, somewhat convoluted argument: first, the city notes that under section
911.4, a person may apply to the public entity for leave to present a late
claim within a reasonable time, not to exceed one year after the accrual of the
cause of action. (§ 911.4.) If the application to file a late claim is
denied, the claimant’s only recourse is to file a petition for an order
relieving him from the claims presentation requirement. (§ 946.6.)
The city argues that when, as here, the initial claim has not been
presented until more than a year after the cause of action has accrued, there
is no procedure available to the claimant.
Thus, the city argues, a public entity cannot respond to such a claim as
mandated by section 911.3 without misrepresenting the law.
We
reject this argument. First, section
911.3 contains only one specific exception to the requirement that the public
entity respond to an untimely claim.
Section 911.3, subdivision (b) provides that “no notice need be given
and no waiver shall result when the claim as presented fails to state either an
address to which the person presenting the claim desires notices to be sent or
an address of the claimant.†Section
911.3 contains no other exception to the requirement that the public entity
respond to an untimely claim within 45 days.
Specifically, it contains no exception indicating that the public entity
need not respond if more than a year has passed since the date that the cause
of action accrued. Under the plain
language of section 911.3, the city was not exempt from responding to appellant’s
claim on the ground that more than a year had passed since the date appellant’s
cause of action had accrued. Nothing in
the statutory scheme suggests that a public entity may choose not to respond to
an untimely claim and then defend itself by declaring that the claim was not
timely filed. Under those circumstances,
a defense of untimeliness is waived under section 911.3, subdivision (b).
Second, the city need not misrepresent the law in order
to respond to a claimant who has filed his claim more than a year after the
date that his cause of action has accrued.
The statutorily mandated notice is required to be phrased in
substantially the following form pursuant to section 911.3, subdivision (a):
“‘The
claim you presented to the (insert title of board or officer) on (indicate
date) is being returned because it was not presented within six months after
the event or occurrence as required by law.
See Sections 901 and 911.2 of the Government Code. Because the claim was not presented within
the time allowed by law, no action was taken on the claim.
“Your
only recourse at this time is to apply without delay to (name of public entity)
for leave to present a late claim. See
Sections 911.4 to 912.2, inclusive, and Section 946.6 of the Government
Code. Under some circumstances, leave to
present a late claim will be granted.
See Section 911.6 of the Government Code.
“You
may seek the advice of an attorney of your choice in connection with this
matter. If you desire to consult an
attorney, you should do so immediately.’â€
The city would not have been misrepresenting the law if
it had provided a notice containing this language to appellant. The notice explains that the only recourse to
the claimant is to file a request for leave to file a late claim. The notice does not suggest that the request
will be granted. It simply informs the
claimant of the city’s position that the claim was not timely filed. This is not a misrepresentation of the law.
The city next argues that once a
limitations period has run, this defense cannot be waived or estopped. (Citing
Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674, 690,
fn. 5; Magnolia Square Homeowners Ass’n
v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1063.)
is the six-month period, commencing with accrual of the cause of action, during
which the claimant may file a claim against the government. Contrary to the city’s argument, this
limitations period may be waived, as expressly stated in section 911.3,
subdivision (b).
The city cites the policy goals of
the Act, arguing that the “tightly controlled notice provisions†of the Act are
intended to “‘limit the potential for lawsuits against government
entities.’†(Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474,
481.) The city contends that these goals
would be thwarted if late claims were allowed indefinitely.
Our decision to enforce the plain
language of section 911.3, subdivision (b), does not allow late claims
indefinitely. Rather, section 911.3,
subdivision (b) requires only that the public entity notify the claimant that
his claim is not timely filed. Once he
is so notified, the claimant knows whether the claim is being rejected on the
basis of timeliness or on its merits.
The claimant must know the reason for the rejection of the claim in
order to assess the validity of that stated reason and determine the
appropriate next steps.
The defense of untimeliness is
waived only if the public entity fails to inform the claimant that his claim
was rejected on that ground. If the
public entity follows the proper procedure set forth in the statute, late
claims will not be allowed indefinitely.
The city cites County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th
1263, 1272 (County), for the
proposition that “[n]o relief can be granted if the application to file a late
claim is filed more than one year after the accrual of the cause of
action.†In County, a minor, N.L., alleged that she had been sexually assaulted
as a minor in a juvenile facility. After
N.L. was released from custody, her mother contacted an attorney who filed a
timely claim with the county on behalf of N.L.
(Id. at p. 1266.) On May 30, 2002, the county mailed a letter
to the attorney, informing him that N.L.’s claim had been denied on March 14,
2002, and that with certain exceptions, he had only six months to file an action
on the claim. However, the attorney did
not receive the notice. (
On December 31, 2003, more than one
and a half years after the county mailed its notice of the denial of N.L.’s
claim, N.L. filed a complaint against the county. The county moved for summary judgment,
arguing that N.L.’s cause of action was barred under the terms of section
945.6, in that N.L. failed to file her complaint within six months after the
county filed its notice of denial of her claim.
(County, supra, 127
Cal.App.4th at pp. 1266-1267.) N.L.
opposed the summary judgment motion on the ground that Code of Civil Procedure
section 340.1, the statute of limitations applicable to victims of childhood
sexual abuse, governed the timeliness of her claim. The trial court agreed, but the Court of
Appeal reversed, concluding that “the timeliness of N.L.’s action is governed
by section 945.6, not [Code of Civil Procedure] section 340.1,†and that her
action was therefore time-barred. (
In response to N.L.’s argument that
she was unaware of the actions of the attorney hired by her mother, the Court
of Appeal noted that even if the actions of that attorney were a nullity, “N.L.
has no recourse against the County at this time.†(County,
supra, 127 Cal.App.4th at p. 1272.)
The Court of Appeal explained the applicable provisions of the
Government Code, noting that if an application to file a late claim is denied,
a court has no power to grant a petition for an order relieving the petitioner
from the claims presentation requirement.
(Ibid.)
The County court did not discuss section 911.3, or the language of
section 911.3, subdivision (b) providing for waiver of the defense of
untimeliness. “A decision ‘is not
authority for everything said in the . . . opinion but only “for the points
actually involved and actually decided.â€
[Citations.]’†(
915.) We therefore find that the case
does not support the city’s position that the demurrer was properly sustained
on the ground of untimeliness.
IV. Complaint
was not subject to demurrer on grounds that the claim was untimely
To survive demurrer, appellant was
required to plead compliance with the government claim filing requirement. Appellant did so, alleging that “[o]n
February 23, 2011, within the period for filing a claim, Plaintiff presented a
claim for personal injury to Defendant.â€
Appellant further alleged that the city did not respond to his claim.
As discussed above, section 911.3
provides that if the city does not provide notice to appellant that his claim
is being rejected on the ground of untimeliness, any defense of untimeliness is
waived. Because the complaint alleges
that the city did not respond to appellant’s claim, the complaint makes a prima
facie showing that the defense of untimeliness was waived. The city’s demurrer was not properly
sustained on the ground that appellant’s claim was not timely filed.
The judgment is reversed. Appellant is entitled to her costs on appeal.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
____________________________,
J.
CHAVEZ
We concur:
______________________________, P. J.
BOREN
______________________________, J.*
FERNS
________________________________________________________________________
* Judge of
the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
name="_ftn1" title="">[1] Richard Curran was the original plaintiff in this
case. However, Mr. Curran died after
this appeal was filed. Barbara Ann Curran, his spouse, has been appointed successor-in-interest. The term “appellant†in this case may refer
to Richard Curran or Barbara Ann Curran, as successor-in-interest.
name="_ftn2" title="">[2] All
further statutory references are to the Government Code unless otherwise
indicated.
