Stack v. Southern Cal. Edison Co. CA2/1 ( 2024 )

Filed 5/31/24 Stack v. Southern Cal. Edison Co. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
BRIAN STACK et al., B328041
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 22STCV15763)
v.
SOUTHERN CALIFORNIA
EDISON COMPANY et al.,
Defendants and Respondents.
APPEALS from judgments of the Superior Court of
Los Angeles County, William F. Highberger, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Strange, Brian R. Strange, John T. Ceglia,
Brianna J. Strange and R. Martin Weber, Jr. for Plaintiffs and
Appellants.
Hueston Hennigan, John C. Hueston, Douglas J. Dixon,
Andrew K. Walsh and Craig A. Fligor for Defendant and
Respondent Southern California Edison Company.
Horvitz & Levy, Mitchell C. Tilner, Stephen E. Norris,
Rebecca G. Powell; Wilson, Elser, Moskowitz, Edelman & Dicker
and Daniel S. Hurwitz for Defendant and Respondent Universal
Protection Service, L.P.
Gibson, Dunn & Crutcher, Thomas A. Manakides,
Abbey Hudson, Joseph D. Edmonds and Peter Modlin for
Defendant and Respondent The Boeing Company.
____________________________
Plaintiffs Brian and Roohi Stack (the Stacks) appeal from
judgments of dismissal in favor of Southern California Edison
Company, Universal Protection Service, LP, and The Boeing
Company (collectively, defendants).1 The trial court found as
time-barred the Stacks’ causes of action based on a wildfire
allegedly caused by defendants destroying the Stacks’ home. On
this basis, the trial court sustained defendants’ demurrers and
granted their motions to strike.
On appeal, the Stacks assert two independent arguments
as to why their complaint was timely. First, they contend under
the discovery rule, their causes of action could not have accrued
until November 14, 2018, the first day authorities lifted the
mandatory evacuation order and the Stacks were able to return
to their property to learn their house had burned down. Second,
they contend the applicable limitations period was tolled during
the pendency of a class action concerning the wildfire.
1 The trial court also entered judgment in favor of Edison
International, Southern California Edison’s parent company.
The Stacks did not file a notice of appeal from that judgment.
Edison International therefore is not party to this appeal.
2
All but one of the Stacks’ causes of action are subject to a
three-year statute of limitations. As to those causes of action,
and as set forth in our Discussion, post, the parties have different
interpretations of Supreme Court precedent regarding when a
limitations statute starts to run. Defendants contend the
suspicion of harm starts the limitations period running. The
Stacks interpret the same precedent to argue reasonable
suspicion is not enough for their causes of action to accrue if they
could not have determined their property was harmed at all
before the evacuation order was lifted. Even assuming
defendants’ interpretation of Supreme Court precedent, we
conclude the complaint does not reveal as a matter of law that
the Stacks had a reason to suspect their property was harmed
before the evacuation order was partially lifted.
As described in the complaint, the evacuation orders
covered a broad geographical area stretching from Ventura
County into Los Angeles County, and the fact the Stacks’ home
was within that broad area does not support as a matter of law
that when the Stacks were evacuated, they had reason to suspect
damage to their home just because their property was within that
geographic area. Thus, the complaint does not reveal that the
Stacks’ claims subject to the three-year limitations statute are
time-barred as a matter of law even accepting defendants’
interpretation of our high court’s precedent on the discovery rule.
Given this conclusion, we do not address the Stacks’ argument
that the pendency of the class action tolled running of the
limitations period on the causes of action subject to a three-year
statute of limitations.
We further conclude the cause of action under Public
Utilities Code section 2106 is subject to a two-year statute of
3
limitations and is untimely regardless of the discovery rule or
class action tolling.
Accordingly, we affirm in part and reverse in part.
BACKGROUND
1. Complaint
On May 11, 2022, the Stacks filed a complaint against
defendants and Edison International.2 In the first amended
complaint, the operative complaint for purposes of this appeal,
the Stacks alleged the following, which we accept as true for
purposes of reviewing the ruling on defendants’ demurrer. (See
Los Angeles Waterkeeper v. State Water Resources Control Bd.
(2023) 92 Cal.App.5th 230, 264 (Los Angeles Waterkeeper).)
The Stacks’ home was destroyed by the 2018 Woolsey
wildfire. The fire began on November 8, 2018 on a property
owned by Boeing in Ventura County near Simi Hills, and spread
towards Point Dume in Malibu, where the Stacks lived.3 On
November 9, authorities issued a mandatory evacuation order,
which the Stacks obeyed. In all, authorities ordered 75,000
homes and 295,000 people to evacuate.
As stated in the first amended complaint, the fire “burned
onto Point Dume . . . on November 9, 2018 and it continued to
destroy homes in the area through the weekend. On
2 Paul Woodman was the Stacks’ coplaintiff. His claims
are not at issue in this appeal, nor are the trial court’s rulings as
to those claims.
3 We take sua sponte judicial notice that Point Dume is in
Los Angeles County. (Evid. Code, §§ 452, subds. (g), (h), 459,
subd. (a).)
4
November 11, 2018, houses were still burning down despite the
heroic efforts of a group of residents who bucked the evacuation
orders to try and save homes.”
On November 14, 2018, officials allowed Point Dume
residents to return to the area on a limited basis. Residents had
to enter on foot through a manned checkpoint 14 miles from Point
Dume. Brian Stack and his son passed through the checkpoint
on November 14 and, after obtaining a ride from a law
enforcement officer, arrived at their property that afternoon.
They saw their “house was a total loss.”
Officials did not lift the mandatory evacuation orders
completely “until at least November 17, 2018” because, inter alia,
“spot fires were still burning in Malibu” and “houses were still on
fire.” Approximately 1,600 structures were lost in the fire.
The Stacks alleged Southern California Edison and Edison
International were responsible for the Woolsey wildfire because
they failed to maintain their electrical facilities in a safe manner,
failed to perform vegetation management in accordance with the
applicable regulations, and failed timely to shut down the circuit
that caused the fire. The Stacks alleged Boeing and its fire
prevention and firefighting contractor, Universal Protection
Service, also were responsible because they failed to provide
adequate fire protection and firefighting resources.
The first amended complaint asserted causes of action for
negligence, negligence per se, inverse condemnation, trespass,
nuisance, and liability under Public Utilities Code section 2106
and Health and Safety Code sections 13007 and 13008.4
4 Public Utilities Code section 2106 imposes liability on a
public utility for losses, damages, or injury caused by the utility’s
5
2. Demurrers and motions to strike
Defendants and Edison International filed demurrers and
motions to strike arguing the Stacks’ causes of action and
damages allegations were untimely under the applicable statutes
of limitations.5 Defendants contended the causes of action were
subject to either a two- or three-year limitations period.
Defendants read the complaint to allege the Stacks suffered fire
damage on November 9, 2018, and argued the limitations period
started on that date. The limitations period was extended by 178
days under California Rules of Court Emergency rule 9(a), which
tolled most statutes of limitations due to the COVID-19
pandemic. The defendants thus argued the last applicable
limitations period expired on May 6, 2022, three years and
178 days after November 9, 2018. This was five days before the
Stacks filed their complaint.
In opposition, the Stacks cited the discovery rule, arguing
the statute of limitations did not begin to run until November 14,
2018, the day the Stacks returned to their property and learned
their house had burned down. The Stacks further argued that,
under Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 (Jolly), the
unlawful acts or omissions. Health and Safety Code sections
13007 and 13008 impose liability for setting fire to another’s
property or allowing a fire on one’s property to escape to
another’s property.
5 Southern California Edison and Edison International
filed a joint demurrer and motion to strike. Boeing joined in the
arguments raised in that demurrer and motion to strike in
addition to raising its own arguments. Universal Protection
Service joined in the demurrers and motions filed by the other
defendants.
6
limitations period was tolled for an additional 267 days during
the pendency of a class action concerning the Woolsey fire,
Perkins, et al. v. S. Cal. Edison Co., et al. (Super. Ct. Los Angeles
County, No. 18STCV05313).6
On February 14, 2023, the trial court sustained the
demurrers and granted the motions to strike. The court’s written
ruling does not include the court’s reasoning, but instead
incorporates by reference its analysis in a January 6, 2023 order
in another Woolsey wildfire case, Dayani v. Southern California
Edison Co. (Super. Ct. Los Angeles County, No. 22STCV19265).7
In Dayani, the trial court granted Southern California
Edison’s motion to strike the plaintiff’s fire-related claims, filed
on June 13, 2022, as untimely, and rejected the plaintiff’s
invocation of the discovery rule and tolling due to the pendency of
the Perkins class action. As to the discovery rule, the trial court
observed that the plaintiff in Dayani had “pled that she was
unable to ‘adequately survey [her] property to ascertain the
damages’ until May 2019 because the fire and subsequent debris
flows impeded access to her land.” The court added, “ ‘[W]hen
one’s property is damaged, one should reasonably suspect that
someone has done something wrong to him and, accordingly, be
charged with knowledge of the information that would have been
revealed by an investigation.’ [Citation.] Plaintiff’s inability to
access her property due to damage to the land, property, and
6 The Stacks also argued their claims alleged a continuing
nuisance that delayed accrual of the limitations period. They
do not reassert this argument on appeal, and we express no
opinion on it.
7As of the filing date of this opinion, the Dayani parties
have not yet sought review of the decision by writ or appeal.
7
nearby roadways and driveways would provide her with
sufficient knowledge to reasonably suspect someone had done
something wrong to her. [Citations.] She cannot claim the
benefit of the delayed discovery rule by arguing that damage to
her property prevented her from learning about damage to her
property.”
The trial court in Dayani also rejected the plaintiff’s
argument that the Perkins class action tolled the statute of
limitations. The court cited case law for the proposition that
tolling due to a pending class action is appropriate only if “the
tolled suit raises claims concerning the same evidence, memories,
and witnesses as the subject matter of the original class suit.”
The court found, “Certification of the class claims asserted in
Perkins would be impossible due to gross lack of commonality.
Because the Perkins class action would never have been
amenable to proof through common evidence, it necessarily
involves different evidence, memories, and witnesses than those
at the heart of Plaintiff’s individual claims in this case.” The
Perkins class action was “a mass tort action where ascertainment
of the number and generic identities of potential individual
plaintiffs from the Perkins class definition is unfeasible.” The
court also found the plaintiff, having waited almost three years
after Perkins was voluntarily dismissed to file her complaint,
“cannot claim to have reasonably relied on the Perkins action in
delaying bringing her own individual claims . . . . Instead, she is
treating the Perkins class claims as a coupon to extend her filing
deadline by nine months. This is not reasonable reliance and not
reasonable delay.”
In the instant case, the trial court wrote, “Analytically,
[Southern California Edison’s] demurrer and [motion to strike]
8
present the exact same legal issues as the motion to strike in
[Dayani]. For this reason, the demurrer will be sustained and
the motion granted, both without leave to amend.” In granting
Boeing’s demurrer and motion to strike, the court similarly
wrote, “[T]he analysis is simple and the same as the Dayani
ruling cited above.”
The trial court entered judgments of dismissal in favor of
defendants and Edison International. The Stacks timely
appealed from all judgments except the judgment in favor of
Edison International.
STANDARD OF REVIEW
“ ‘We independently review [a] ruling on a demurrer and
determine de novo whether the pleading alleges facts sufficient to
state a cause of action.’ [Citation.]” (Los Angeles Waterkeeper,
supra, 92 Cal.App.5th at p. 264.) “We ‘adopt[ ] a liberal
construction of the pleading and draw[ ] all reasonable inferences
in favor of the asserted claims.’ [Citation.]” (Robertson v. Saadat
(2020) 48 Cal.App.5th 630, 639.) “ ‘[W]e accept as true the well-
pleaded allegations in [the] . . . complaint. . . .’ [Citation.]”
(Los Angeles Waterkeeper, at p. 264.) “ ‘[W]e treat the demurrer
as admitting all material facts properly pleaded, but do not
assume the truth of contentions, deductions or conclusions of
law. . . .’ [Citations.]” (County of Santa Clara v. Superior Court
(2023) 14 Cal.5th 1034, 1041.) “We are not bound by the trial
court’s reasoning and may affirm the judgment if correct on any
theory.” (Robertson, at p. 639.)
Motions to strike challenging the legal sufficiency of
allegations in a complaint are akin to demurrers, and the grant of
such a motion to strike is thus also reviewed de novo. (See
Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529.) As
9
with demurrers, “ ‘[i]n passing on the correctness of a ruling on a
motion to strike, judges read allegations of a pleading subject to a
motion to strike as a whole, all parts in their context, and assume
their truth.’ [Citation.]” (Today’s IV v. Los Angeles County
Metropolitan Transportation Authority (2022) 83 Cal.App.5th
1137, 1192–1193.)
We also observe, “ ‘It is difficult for demurrers based on the
statute of limitations to succeed because (1) trial and appellate
courts treat the demurrer as admitting all material facts properly
pleaded and (2) resolution of the statute of limitations issue can
involve questions of fact. . . .’ [Citation.]” (Schmier v. City of
Berkeley (2022) 76 Cal.App.5th 549, 554.) “ ‘[F]or a demurrer
based on the statute of limitations to be sustained, the
untimeliness of the lawsuit must clearly and affirmatively appear
on the face of the complaint and matters judicially noticed.’
[Citation].” (Ibid.)
DISCUSSION
A. Statutes of Limitations Applicable to the Stacks’
Causes of Action
“Under the statute of limitations, a plaintiff must bring a
cause of action within the limitations period applicable thereto
after accrual of the cause of action.” (Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 389.) “[T]he fundamental purpose of the
statute is to give defendants reasonable repose, that is, to protect
parties from defending stale claims. A second policy underlying
the statute is to require plaintiffs to diligently pursue their
claims.” (Jolly, supra, 44 Cal.3d at p. 1112.)
10
1. Causes of action subject to three-year statute of
limitations
All of the Stacks’ causes of action except the Public Utilities
Code claim are subject to a three-year statute of limitations. The
negligence, nuisance, and trespass claims are subject to the
three-year statute of limitations under Code of Civil Procedure
section 338, subdivision (b), for “[a]n action for trespass upon or
injury to real property.” That same subdivision governs the
causes of action under Health and Safety Code sections 13007
and 13008 alleging defendants allowed the fire to escape onto the
Stacks’ property. (See Scholes v. Lambirth Trucking Co. (2020)
8 Cal.5th 1094, 1100–1101.) Inverse condemnation is subject to a
three-year statute of limitations under Code of Civil Procedure
section 338, subdivision (j), which covers actions “to recover for
physical damage to private property under Section 19 of Article I
of the California Constitution.” (See Lyles v. State of California
(2007) 153 Cal.App.4th 281, 285 (Lyles).)
2. The Public Utilities Code claim is subject to a
two-year statute of limitations
Public Utilities Code section 2106, a section of the Public
Utilities Act (Pub. Util. Code, § 201 et seq.)8 provides, in relevant
part, “Any public utility which does, causes to be done, or permits
any act, matter, or thing prohibited or declared unlawful, or
which omits to do any act, matter, or thing required to be done,
either by the Constitution, any law of this State, or any order or
decision of the [Public Utilities Commission], shall be liable to the
8 Further unspecified statutory citations are to the Public
Utilities Code.
11
persons or corporations affected thereby for all loss, damages, or
injury caused thereby or resulting therefrom.”
Section 735, also within the Public Utilities Act, provides,
in relevant part, “All complaints for damages resulting from a
violation of any of the provisions of this part [i.e., the Public
Utilities Act] . . . shall either be filed with the [Public Utilities
Commission], or where concurrent jurisdiction of the cause of
action is vested by the Constitution and laws of this State in the
courts, in any court of competent jurisdiction, within two years
from the time the cause of action accrues, and not after.”
Below and in their appellate briefing, defendants asserted
the Stacks’ causes of action “ha[ve] a two- or three-year
limitations period,” and identified section 735 as providing the
statute of limitations for the Stacks’ cause of action under section
2106. The parties and trial court have not addressed section 735
further, either below or in their appellate briefing. We therefore
requested and received supplemental briefing from the parties to
the section 2106 cause of action on the applicability of
section 735.
In their supplemental brief, the Stacks argue section 735,
by its terms, applies only to “complaints for damages resulting
from a violation of any of the provisions of” the Public Utilities
Act (§ 735), whereas section 2106 is broader, allowing suits
against public utilities not only for violations of the Public
Utilities Act, but also violations of “the Constitution, any law of
this State, or any order or decision of the [Public Utilities
Commission]” (§ 2106). Based on this language, the Stacks
contend the two-year limitations period under section 735 applies
to section 2106 claims only to the extent those claims are
premised on violations of the Public Utilities Act, as opposed to
12
other laws. The Stacks further assert their section 2106 claim is
premised in part on violations of laws or regulations outside of
the Public Utilities Act, and therefore section 735 does not apply.
The Stacks cite no authority in support of their argument,
apart from the language of sections 735 and 2106 themselves.
We need not decide the scope of section 735, however, because
assuming arguendo it applies only to section 2106 claims
premised on violations of the Public Utilities Act as opposed to
other laws, the Stacks’ section 2106 claim is premised entirely on
violations of the Public Utilities Act.
Under their section 2106 cause of action, the Stacks alleged
Southern California Edison “violated Public Utilities Code
sections 702 and 451, and/or Public Utilities Commission General
Order 95.” The Stacks also referenced Public Utilities
Commission Rule 33.1 and General Order 165, although they
did not expressly allege violations of these provisions.
Sections 451 and 702 are within the Public Utilities Act.
Although the Stacks appear to imply that violations of the Public
Utilities Commission’s rules and orders do not constitute
violations of the Public Utilities Act, section 702 provides, in
relevant part, “Every public utility shall obey and comply with
every order, decision, direction, or rule made or prescribed by the
[Public Utilities Commission] in the matters specified in [the
Public Utilities Act], or any other matter in any way relating to
or affecting its business as a public utility . . . .” Thus, violations
of Public Utilities Commission orders and rules also are
violations of section 702. The Stacks’ Public Utilities Code claim
alleges only violations of the Act itself.
The Stacks alternatively contend Southern California
Edison forfeited its argument based on section 735 because that
13
argument “was not advanced, much less developed . . . in the trial
court.” We disagree. As noted, defendants identified section 735
as the applicable statute of limitations for the section 2106 claim
in their briefing below and on appeal. The Stacks did not contest
this or even address section 735 in their opposition below or in
their appellate briefing. Southern California Edison had no
obligation to “develop” the uncontested assertion that section 735
applies.
3. Calculation of the relevant limitations periods
In response to the COVID-19 pandemic, California Rules of
Court Emergency rule 9(a) tolled “the statutes of limitations and
repose for civil causes of action that exceed 180 days . . . from
April 6, 2020, until October 1, 2020.” The parties disagree
whether October 1, 2020 is counted as part of the tolling period—
the Stacks contend it is, and therefore the tolling period is 179
days, whereas defendants assert the tolling period is 178 days.
Because the one-day difference is immaterial to our analysis, we
leave this debate for another day and accept arguendo
defendants’ position that the period is 178 days.
Thus, for all but the Public Utilities Code cause of action,
the Stacks had three years and 178 days to file their complaint
once their causes of action accrued. They filed their complaint on
May 11, 2022. For the complaint to be timely, their causes of
action would have had to accrue no earlier than November 14,
2018, absent additional bases for tolling. The Public Utilities
Code violation would have had to accrue no earlier than
November 14, 2019, absent additional bases for tolling.
14
B. The Complaint Does Not Reveal as a Matter of Law
that the Limitations Period Started To Run Before
the Evacuation Order was Lifted and the Trial Court
Thus Erred In Sustaining the Demurrers as Untimely
Whether the trial court erred in sustaining the demurrers
turns on whether the complaint reveals as a matter of law that
the Stacks’ claims accrued before November 14, 2018. Because
we conclude the complaint is susceptible to a reasonable
inference that the Stacks did not have a reasonable suspicion
that their property was harmed before being able to access the
property, the trial court erred in sustaining the demurrers.
1. The discovery rule
In Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797(Fox), our high court described when a limitations period accrues.
“Generally speaking, a cause of action accrues at ‘the time when
the cause of action is complete with all of its elements.’
[Citations.]” (Id. at p. 806.) It also described an “important
exception”—the discovery rule—“which postpones accrual of a
cause of action until the plaintiff discovers, or has reason to
discover, the cause of action.” (Id. at p. 807.) The court
articulated the rule in the following manner: “[A] cause of action
accrues and the statute of limitations begins to run when the
plaintiff has reason to suspect an injury and some wrongful
cause, unless the plaintiff pleads and proves that a reasonable
investigation at that time would not have revealed a factual basis
for that particular cause of action. In that case, the statute of
limitations for that cause of action will be tolled until such time
as a reasonable investigation would have revealed its factual
basis.” (Id. at p. 803.)
15
A plaintiff seeking to invoke the discovery rule “ ‘must
specifically plead facts to show (1) the time and manner of
discovery and (2) the inability to have made earlier discovery
despite reasonable diligence.’ [Citation.]” (Fox, supra, 35 Cal.4th
at p. 808.) “ ‘When a plaintiff reasonably should have discovered
facts for purposes of the accrual of a ca[u]se of action or
application of the delayed discovery rule is generally a question of
fact, properly decided as a matter of law only if the evidence (or,
in this case, the allegations in the complaint and facts properly
subject to judicial notice)[9] can support only one reasonable
conclusion.’ [Citations.]” (Alexander v. Exxon Mobil (2013)
219 Cal.App.4th 1236, 1252.)
2. Analysis
a. The trial court erred in finding its
reasoning in Dayani disposes of the claims
herein
Before we turn to the parties’ contentions, we first conclude
that the trial court’s stated reasoning does not support its
sustaining of the demurrers. As summarized ante, the trial court
relied on its ruling in the Dayani case, without further
elaboration. The allegations in the Dayani complaint, however,
are markedly different from those in the Stacks’ complaint.
9 Defendants have not requested we take judicial notice of
any facts on appeal. Below, Boeing requested the trial court take
judicial notice of the mandatory evacuation order and seven news
articles about the fire. The trial court took judicial notice of the
evacuation order, although noting the order was not relevant to
its ruling, and otherwise denied the request.
16
In Dayani, the trial court interpreted that complaint as
alleging that damage to the plaintiff’s property prevented her
from accessing the property to assess the extent of the damage.
The court found the plaintiff’s knowledge of damage barring
entry onto the property “would provide her with sufficient
knowledge to reasonably suspect someone had done something
wrong to her.” The court wrote, “[The plaintiff] cannot claim the
benefit of the delayed discovery rule by arguing that damage to
her property prevented her from learning about damage to her
property.”
The Stacks, in contrast, did not allege the damage to the
property prevented them from determining the extent of that
damage. Rather, they allege the mandatory evacuation order
prevented them from entering their property at all. They do not
allege that they were aware their property had been damaged
before November 14. Even assuming arguendo the trial court
correctly decided Dayani, that ruling does not compel the same
outcome here.
b. Assuming suspicion of injury alone is
sufficient to trigger the statute of
limitations, the complaint does not reveal
as a matter of law that the Stacks had
reason to suspect prior to November 14
that their property was harmed
The parties disagree as to how the discovery rule applies in
this case. The Stacks argue because they have alleged the
mandatory evacuation order prevented them from returning to
their property until November 14, 2018, they did not discover,
and could not have discovered, harm to their property until that
date, harm being an essential element of their potential causes of
17
action. Accordingly, they contend the discovery rule delayed
accrual of their causes of action until November 14.
Defendants assert the complaint reveals as a matter of law
that the Stacks had reason to suspect damage to their property
prior to November 14, and this suspicion was enough to start the
limitations period running. Defendants quote the following
language from Fox: “[P]laintiffs are charged with presumptive
knowledge of an injury if they have ‘ “ ‘information of
circumstances to put [them] on inquiry’ ” ’ or if they have ‘ “ ‘the
opportunity to obtain knowledge from sources open to [their]
investigation.’ ” ’ [Citation.]” (Fox, supra, 35 Cal.4th at pp. 807–
808, fn. & italics omitted.) Defendants emphasize the “or” in that
statement, implying it is enough to trigger the statute of
limitations if a plaintiff suspects an injury, i.e., has
“ ‘ “ ‘information of circumstances to put [them] on inquiry’ ” ’ ” as
to whether the plaintiff has suffered an injury, regardless of
whether the plaintiff has had a reasonable opportunity to
investigate.
In light of this language, defendants contend Fox supports
their argument that (1) because the Starks “were evacuated from
their property due to the fire,” they should have suspected before
November 14 that their property was wrongfully harmed;
(2) this suspicion was enough to commence accrual of the
limitations period; and (3) the Starks had three years plus the
COVID-related extra 178 days to investigate potential causes of
action but nevertheless failed to bring timely claims.
It is unnecessary to resolve the parties’ disagreement as to
the law defining accrual of a cause of action. Even assuming
arguendo suspicion of injury by itself is sufficient to trigger the
statute of limitations, as defendants contend, the allegations of
18
the complaint do not establish as a matter of law that prior to
November 14, the Stacks had reason to suspect damage to their
property.
Although the complaint describes in detail the path of the
fire from Ventura County onto Point Dume in Los Angeles
County and the destruction the fire caused, it says virtually
nothing about the Stacks themselves except that they lived on
Point Dume, were subject to a mandatory evacuation order on
November 9, 2018, and returned to their property on
November 14. There are no allegations regarding what the
Stacks knew about the fire, including where it was, the path it
was taking, and whether their particular property was in danger
at the time the events were unfolding.
To the extent defendants suggest the mere fact the Stacks
allege they were evacuated due to fire should have put them on
notice of possible damage to their property as a matter of law, we
disagree. The Stacks allege the evacuation orders issued during
the fire were broad, extending across two counties and affecting
75,000 homes and 295,000 people, but only 1,600 structures were
destroyed. The mere fact the Stacks’ home was within the
geographically large fire evacuation zone, therefore, does not
suggest they had reason to suspect at the time they were
evacuated that their particular home or even homes in their
neighborhood were harmed.
We therefore conclude that the Stacks have sufficiently
pleaded that their causes of action did not accrue until
November 14, 2018, the first day they “discover[ed], or ha[d]
reason to discover” the damage to their property. (Fox, supra,
35 Cal.4th at p. 807.)
19
We emphasize that our holding is compelled by the
standard of review applicable to demurrers, under which we
assume the truth of the allegations and draw every fair inference
in favor of the Stacks. We express no opinion on how we would
resolve this matter on a more developed evidentiary record.
c. Defendants’ cited cases involve plaintiffs
with actual knowledge of the harm to their
property, and therefore are inapposite
Defendants cite Lyles, supra, 153 Cal.App.4th 281, for the
proposition that “the discovery rule typically does not apply in
property-damage cases.” Lyles is factually distinguishable and
not instructive on the issues before us.
In Lyles, the plaintiffs sued the state for inverse
condemnation and nuisance when their property was flooded in
1998 following a storm, allegedly because of an inadequate
drainage system. (Supra, 153 Cal.App.4th at pp. 284–285.) The
plaintiffs filed suit in 2004, more than three years after the
flooding occurred, but argued their cause of action did not accrue
until 2003, when they allegedly learned the drainage system
caused the flood. (Id. at p. 286.)
The Court of Appeal held the discovery rule did not apply.
The court wrote, “[W]hen one’s property is damaged, one should
reasonably suspect that someone has done something wrong to
him and, accordingly, be charged with knowledge of the
information that would have been revealed by an investigation.
That particular property damage could result from natural
causes does not mean that the same property damage could
result only from natural causes.” (Lyles, supra, 153 Cal.App.4th
at pp. 287–288.) As an example, the court noted “fire damage
could result from natural causes or arson. If an injured property
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owner elects to believe, without investigating, that fire damage
resulted from natural causes, he or she cannot expect to
successfully sue an arsonist who later confesses outside the
limitations period.” (Id. at p. 288.)
Lyles illustrates the general principle that when a property
owner knows of damage to his property, the property owner
ordinarily has reason to suspect a wrongful cause of that damage,
and thus, may be charged with knowing whatever would have
been revealed by a reasonable investigation. This principle, as
stated in Lyles, assumes the property owner already knows of his
injury. (See Lyles, supra, 153 Cal.App.4th at p. 287 [“the plaintiff
need only be aware of his or her injury and have knowledge of
sufficient facts to place him or her on actual or inquiry notice that
the injury has a negligent cause,” italics added].) Lyles does not
speak to the issue presented here, namely under what conditions
a plaintiff who lacks actual knowledge of damage to his or her
property nonetheless should suspect damage. The Lyles
plaintiffs, unlike the Stacks, were present on their property when
the damage occurred. (See Lyles, supra, 153 Cal.App.4th at
p. 286 [plaintiffs knew of the damage to their property “at the
time it happened”].)
Defendants also argue case law establishes that “a property
owner’s absence from the property does not delay accrual.” The
cases they cite for this broad principle do not support it.
Defendants’ cited cases involve property owners who, like
the Lyles plaintiffs, had immediate notice of damage to their
property, yet were not diligent in investigating the cause or
extent of the damage, and subsequently made insurance claims
outside the limitations period in their policies. In those
circumstances, courts have held the property owners could not
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invoke the discovery rule. (See Abari v. State Farm Fire &
Casualty Co. (1988) 205 Cal.App.3d 530, 535 [discovery rule
did not apply when property owner knew of cracks in home, but
due to “being an absentee landlord,” did not learn until years
later that the cracks were caused by subsidence and therefore
covered by his insurance policy]; Hill v. Allstate Ins. Co.
(C.D.Cal. 1997) 962 F.Supp. 1244, 1245, 1248 [discovery rule
did not apply when tenants immediately notified out-of-state
landlord the property had been impacted by the 1994 Northridge
earthquake, but landlord was not diligent thereafter in
inspecting the home and making an insurance claim].) These
cases thus do not provide guidance as to application of the
discovery rule to the allegations before us: landowners who did
not actually know their property was harmed and could not be
charged with reasonably suspecting such damage merely because
their property was located in a vast geographic area subject to a
fire evacuation order.
C. The Stacks’ Cause of Action Under Public Utilities
Code Section 2106 Is Untimely
The Stacks offer no theory supporting the timeliness of
their cause of action under Public Utilities Code 2106. As
alleged, that cause of action, like all the Stacks’ causes of action,
accrued on November 14, 2018. Adding 178 days for pandemic
tolling to the two-year limitations period under Public Utilities
Code section 735, the Stacks would have had to bring that cause
of action no later than May 11, 2021. Assuming arguendo the
pendency of the Perkins class action further tolled the limitations
period 267 days, as the Stacks contend, the deadline would be
extended to February 2, 2022. The Stacks did not file their
complaint until May 11, 2022. The trial court did not err in
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sustaining the demurrer to the cause of action under Public
Utilities Code section 2106.
D. The Trial Court Erred In Granting the Motions To
Strike
As noted in our Background, ante, in addition to demurrers,
defendants filed motions to strike the Stacks’ allegations, also
based on the statute of limitations and seeking materially the
same relief as the demurrers. The trial court granted the
motions to strike along with the demurrers and cited the same
reasoning for both.
In their appellate briefing, the parties raise no arguments
applicable just to the motions to strike.10 The Stacks state their
arguments on appeal “apply against each of the motions to strike
10 In its papers below, Boeing argued because the Stacks’
complaint sought damages for evacuation expenses, which were
incurred on November 9, 2018, the statute of limitations began to
run on that date, at least as to those damages if not as to all the
Stacks’ claims. Boeing further argued to the extent the Stacks
sought personal injury damages arising from their property
damage, such as emotional distress and loss of enjoyment, those
damage claims are subject to the two-year statute of limitations
for personal injury claims as opposed to the three-year statute for
property damage claims. The trial court did not address these
arguments, instead ruling in defendants’ favor based on its
earlier Dayani ruling. Boeing and the other defendants have not
reasserted these arguments in their appellate briefing, and thus
the Stacks have not addressed them. At oral argument, however,
Boeing and Universal Protection Service attempted to revive
them. We decline to address these unbriefed issues raised for the
first time on appeal at oral argument and express no opinion on
them. (See Estate of McDaniel (2008) 161 Cal.App.4th 458, 463.)
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as well as the demurrers.” Defendants do not mention the
motions to strike in their appellate briefing.
We reverse the grants of the motions to strike. As we have
discussed, the Stacks’ causes of action subject to the three-year
limitations period are timely as alleged, and thus the trial court
erred in sustaining the demurrers and granting the motions to
strike allegations supporting those causes of action. As for the
Public Utilities Code cause of action, the meritorious demurrer
moots the motion to strike that claim and its supporting
allegations.
DISPOSITION
The judgments in favor of Southern California Edison
Company, Universal Protection Service, L.P., and The Boeing
Company are reversed. The trial court is instructed to vacate its
order sustaining the demurrers and granting the motions to
strike against Brian and Roohi Stack, and to enter a new order
1) sustaining the demurrer to the Stacks’ cause of action under
Public Utilities Code section 2106; 2) overruling the demurrers to
the Stacks’ other causes of action; and 3) denying the motions to
strike.
The Stacks are awarded their costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. WEINGART, J.
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