City of Pasadena v. Super. Ct.

Filed 6/26/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CITY OF PASADENA, B280805
Petitioner, (Los Angeles County
Super. Ct. No. BC596857;
v. JCCP No. 4674)
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
SANDRA REYES JAUREGUI et
al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. Steven J.
Kleifield, Judge. Petition granted.
Foley & Mansfeld, Keith M. Ameele, Joseph V. Macha,
M. Amadea Groseclose, Margaret I. Johnson; Office of the
Pasadena City Attorney, Michele Beal Bagneris, City
Attorney, and John Nam, Deputy City Attorney, for
Petitioner.
No appearance for Respondent.
Kazan, McClain, Satterley & Greenwood, Joseph
Satterley, Denyse F. Clancy, and Ian A. Rivamonte, for Real
Parties in Interest.
___________________________________________
INTRODUCTION
Under the Government Claims Act (Gov. Code, § 810 et
seq.), before commencing an action against a public entity, a
plaintiff must present the claim to the entity within six
months of “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.” (Gov. Code,
§ 901.) In the underlying action, real parties in interest
Sandra Reyes Jauregui and Mario Reyes Jauregui (the
Jaureguis) filed a first amended complaint (FAC), alleging a
cause of action against petitioner City of Pasadena (the City)
arising from Sandra Jauregui’s mesothelioma. The City
demurred to the Jaureguis’ complaint, arguing that they had
failed to comply with the claim presentation requirement of
the Government Claims Act by not presenting their claim to
the City within six months of the date of Sandra’s
mesothelioma diagnosis. The Jaureguis opposed the
demurrer, arguing that their claim presentation was timely
because under the applicable statute of limitations -- Code of
2
Civil Procedure section 340.2 -- their cause of action never
accrued.1 Thus, they asserted, the six-month claim
presentation period never began to run. The trial court
overruled the demurrer, and the City now seeks a writ
directing the trial court to sustain the demurrer.
For the reasons set forth below, we conclude that “the
date upon which the cause of action would be deemed to
have accrued within the meaning of the [applicable] statute
of limitations” is the date on which a plaintiff discovers or
should reasonably have discovered that she had suffered a
compensable injury. In this case, that date was no later
than the date Sandra was diagnosed with mesothelioma.
Because the Jaureguis presented their claim to the City
more than 10 months after that date, they failed to comply
with the claim presentation requirement. Accordingly, we
grant the petition for writ of mandate.
FACTUAL BACKGROUND & PROCEDURAL
HISTORY
On October 5, 2015, the Jaureguis filed a complaint for
personal injuries and loss of consortium against numerous
defendants, but not the City. The complaint alleged that
Sandra was diagnosed with mesothelioma on or about
September 25, 2015. She allegedly developed the disease as
a result of exposure to airborne asbestos that her father “was
All further statutory citations are to the Code of Civil
1
Procedure, unless otherwise indicated.
3
exposed to and thereafter tracked into the family’s home and
vehicles on his clothing, shoes, person, and personal effects.”
The complaint also alleged that Sandra’s father was a
mechanic who worked with asbestos-containing products at
various sites, including at “The City of Pasadena from about
1980 to 1987.”
A year later, on October 14, 2016, the Jaureguis filed
their FAC, adding the City as a defendant. The FAC alleged
a single cause of action against the City for dangerous
conditions of public property. According to the FAC,
Sandra’s father worked for the City as a vehicle mechanic
and was exposed to asbestos at various vehicle repair
facilities owned, controlled or managed by the City. The
FAC further alleged that on August 22, 2016, the Jaureguis
presented their claim to the City in compliance with the
Government Claims Act.2
On November 17, 2016, the City demurred to the FAC.
It argued that the Jaureguis had failed to allege facts
demonstrating or excusing compliance with the claim
presentation requirement set forth in Government Code
section 911.2, which requires that a claim be presented
within six months of the accrual of the cause of action. The
City asserted that the Jaureguis’ causes of action accrued on
Although the FAC initially asserted Mario’s loss-of-
2
consortium claim against the City, the Jaureguis agreed to
dismiss that claim. Thus, the only claim against the City at
issue is the cause of action based on allegedly dangerous
conditions.
4
September 25, 2015, the date when Sandra was diagnosed
with mesothelioma. However, the Jaureguis did not present
a claim to the City until August 22, 2016, nearly 11 months
later. Nor did they file a late-claim application.
Accordingly, the City asserted, the Jaureguis failed to
comply with the claim presentation requirement and thus,
the demurrer should have been sustained without leave to
amend.
The City further argued that section 340.2, the
applicable statute of limitations for the Jaureguis’ cause of
action, did not render their claim presentation timely.
Although the limitations period did not run because Sandra
was never disabled within the meaning of section 340.2, that
section “says nothing about the accrual of the cause of
action.” Accordingly, the City asserted, section 340.2 did not
provide an accrual date other than the date of diagnosis.
The Jaureguis opposed the City’s demurrer, contending
there was no time limit on their claim presentation. They
argued: “Sandra’s government claim had to be filed within
six months of the ‘accrual’ of her underlying tort causes of
action -- a date statutorily defined for this purpose as the
trigger date for the underlying limitations period.” Because
that date was never triggered, “Sandra’s claims never
‘accrued’ for purposes of filing a government claim.” They
further argued that “accrual” has two different meanings --
(1) “‘ripeness’” and (2) “‘beginning of the limitations period’” -
- and “accrual” as used in Government Code section 901
meant the latter.
5
In reply, the City argued that section 340.2 did not
equate “accrual” with the commencement of the limitations
period. Although section 340.2 altered the limitations period
-- the time during which a plaintiff may file a complaint -- it
had no impact on when a cause of action accrued. The City
also argued that nothing in section 340.2 reflects an intent
on the part of the Legislature to modify the claim
presentation deadline in the Government Claims Act.
On December 15, 2016, the trial court overruled the
demurrer without explanation. However, at the hearing on
the demurrer, the court stated its belief that the term
“accrual” as used in Government Code section 901 is “not
used in the sense of a case being ripe so that somebody can
sue.” Rather, it is used to mean “when a person must sue or
lose their right,” i.e., when the limitations period
commences.
The City filed its petition on February 21, 2017,
seeking an immediate stay of all proceedings and a
peremptory writ of mandate directing the trial court to set
aside and vacate its order overruling the demurrer and to
enter a new order sustaining the demurrer.3 In response to
Writ review is proper because a “significant legal issue
3
is presented, and the benefits of the claims act defense would
be effectively lost if defendant[] [was] forced to go to trial.”
(City of Stockton v. Superior Court (2007) 42 Cal. 4th 730,
747, fn. 4; see also State of California v. Superior Court
(2004) 32 Cal. 4th 1234, 1245 [“failure to allege compliance or
circumstances excusing compliance with the claim
6
the petition, on March 16, 2017, we issued an order to show
cause why the demurrer should not be sustained and an
order for a temporary stay entered. The Juareguis filed
their return to the petition on April 14, 2017, and the City
filed its reply May 5, 2017.
DISCUSSION
“Government Code section 905 requires that ‘all claims
for money or damages against local public entities’ be
presented to the responsible public entity before a lawsuit is
filed.” (City of Stockton v. Superior Court, supra, 42 Cal.4th
at p. 734.) “Claims for personal injury and property damage
must be presented within six months after accrual; all other
claims must be presented within a year. ([Gov. Code,] §
911.2.) ‘[N]o 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 therefor
presentation requirement subjects a complaint to a general
demurrer for failure to state facts sufficient to constitute a
cause of action”].) We apply the same standard of demurrer
review, that is, we review demurrer rulings de novo. (City of
Stockton v. Superior Court, at p. 747; accord, K.J. v. Arcadia
Unified School Dist. (2009) 172 Cal. App. 4th 1229, 1237
[“Our review is de novo.”].)
The City also sought a stay of the trial, which had been
scheduled for June 12, 2017. Subsequently, the City filed a
letter brief informing this court that the trial court had
granted its ex parte application to continue the trial to
October 30, 2017.
7
has been presented to the public entity and has been acted
upon . . . or has been deemed to have been rejected . . . .’
([Gov. Code,] § 945.4.) ‘Thus, under these statutes, failure to
timely present a claim for money or damages to a public
entity bars a plaintiff from filing a lawsuit against that
entity.’ [Citation.]” (Id. at p. 738.)
“The purpose of the claims statutes is not to prevent
surprise, but ‘to provide the public entity sufficient
information to enable it to adequately investigate claims and
to settle them, if appropriate, without the expense of
litigation. [Citations.] It is well-settled that claims statutes
must be satisfied even in face of the public entity’s actual
knowledge of the circumstances surrounding the claim.’
[Citation.] The claims statutes also ‘enable the public entity
to engage in fiscal planning for potential liabilities and to
avoid similar liabilities in the future.’ [Citations.]” (City of
Stockton v. Superior Court, supra, 42 Cal.4th at p. 738.)
Here, the Jaureguis were obligated to present their
claims against petitioner “not later than six months after the
accrual of the cause of action.” (Gov. Code, § 911.2.)4 “For
the purpose of computing the time limits prescribed by
[Government Code section] 911.2 . . . , 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
For purposes of the Government Claims Act, six
4
months means “six calendar months or 182 days, whichever
is longer.” (Gonzales v. County of Los Angeles (1988) 199
Cal. App. 3d 601, 604.)
8
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. . . .” (Gov.
Code, § 901.) Thus, to calculate the claim presentation
deadline, we must determine the date the cause of action
accrued under the applicable statute of limitations. (Ovando
v. County of Los Angeles (2008) 159 Cal. App. 4th 42, 63 [“The
date of accrual for purposes of the claim presentation
requirement is the same date on which the cause of action
would accrue for purposes of the statute of limitations in an
action against a private party.”].)
Here, the statute of limitations applicable to the
Juareguis’ claim is found in section 340.2. That section
provides in relevant part:
“(a) In any civil action for injury or illness based upon
exposure to asbestos, the time for the commencement
of the action shall be 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.
“(b) ‘Disability’ as used in subdivision (a) means the
loss of time from work as a result of such exposure
which precludes the performance of the employee’s
regular occupation.” (§ 340.2, subd. (a).)
9
Under section 340.2, “the limitations period does not
begin until the asbestos-related injuries cause a permanent
termination of the plaintiff’s ability to perform his or her job,
which actually forces the plaintiff off the job.” (Duty v. Abex
Corp. (1989) 214 Cal. App. 3d 742, 750.) For retirees and the
unemployed, the limitations period never commences. (Ibid.)
In the instant matter, the parties agree that Sandra was
never disabled within the meaning of section 340.2 and thus,
the limitations period on the Juareguis’ claim has never
begun to run.
Section 340.2 does not use the term “accrued.” That
term is used in section 312, which is found in the same title
of the Code of Civil Procedure as section 340.2. Section 312
provides: “Civil actions, without exception, can only be
commenced within the periods prescribed in this title, after
the cause of action shall have accrued . . . .” Thus, accrual is
a prerequisite to the running of the limitation period. (Barr
v. Acands, Inc. (1997) 57 Cal. App. 4th 1038, 1049, overruled
in part on other grounds by Hamilton v. Asbestos Corp.
(2000) 22 Cal. 4th 1127, 1147 (Hamilton).)
Under section 312, a cause of action accrues when “the
party owning it is entitled to begin and prosecute an action
thereon.” (United States Liab. Ins. Co. v. Haidinger-Hayes,
Inc. (1970) 1 Cal. 3d 586, 596; see also Collins v. County of
Los Angeles (1966) 241 Cal. App. 2d 451, 454 (Collins) [“A
cause of action accrues at the moment the party who owns it
is entitled to bring and prosecute an action thereon.”].)
“Generally, the right to bring and prosecute an action arises
10
immediately upon the commission of the wrong
claimed . . . .” (Ibid.) Stated differently, a “cause of action
accrues ‘when [it] is complete with all of its elements’ —
those elements being wrongdoing, harm, and causation.”
(Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal. 4th 788, 797
(Pooshs).)
An exception to the general rule regarding the initial
accrual of a claim is the discovery rule. (Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal. 4th 1185, 1192
(Aryeh).) Under the discovery rule, the accrual of a cause of
action is delayed until “the plaintiff ‘discovers, or has reason
to discover, the cause of action.’ [Citation.]” (Pooshs, supra,
51 Cal.4th at p. 797; see also Seelenfreund v. Terminix of
Northern Cal., Inc. (1978) 84 Cal. App. 3d 133, 136 [“In some
situations, . . . a cause of action does not accrue until the
aggrieved party discovers, or should discover, the existence
of the cause of action.”].)5
Courts have applied a similar analysis when
addressing statutes of limitations applicable to latent
diseases such as mesothelioma. In Buttram v. Owens-
Other doctrines that alter the general accrual rule
5
include: (1) the continuous violation doctrine which treats a
series of wrongs or injuries as a single cause of action that
accrues upon commission or sufferance of the last of them;
and (2) the theory of continuous accrual, which segregates a
series of wrongs or injuries into separate causes of action,
each accruing on a separate date. (Aryeh, supra, 55 Cal.4th
at p. 1192.)
11
Corning Fiberglas Corp. (1997) 16 Cal. 4th 520 (Buttram),
our Supreme Court noted that “as a general proposition it is
settled that a plaintiff’s cause of action accrues for purposes
of the statute of limitations upon the occurrence of the last
element essential to the cause of action; that is when the
plaintiff is first entitled to sue.” (Id. at p. 531, fn. 4, citing §
312.) However, the discovery rule applies to delay the
accrual of a cause of action for an asbestos-related disease.
Thus, the court observed, “for statute of limitations
purposes, it is well settled that a cause of action for a latent
injury does not accrue until the plaintiff discovers or
reasonably should have discovered that he has suffered a
compensable injury.” (Id. at p. 530, citing Velasquez v.
Fibreboard Paper Products Corp. (1979) 97 Cal. App. 3d 881,
887-888.) In Hamilton, the court reaffirmed Buttram,
stating: “[A] cause of action for a latent injury or disease
generally accrues, in the sense that it is ripe for suit, when
the plaintiff discovers or should reasonably have discovered
he has suffered a compensable injury.” (Hamilton, supra, 22
Cal.4th at p. 1144.)
As the foregoing demonstrates, in the context of
statutes of limitations, “accrual” of an action is used in the
sense of ripeness. This is also the ordinary and common
understanding of the term “accrue.” In Webster’s Seventh
New Collegiate Dictionary (1969) page 6, the first definition
of “accrue” is “to come into existence as a legally enforceable
12
claim.”6 Likewise, Black’s Law Dictionary defines “accrue” as
“To come into existence as an enforceable claim or right; to
arise .” (Black’s Law Dict. (10th ed. 2014).)7
In sum, we conclude that as used in Government Code
section 901, “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” is the date on
which the cause of action became actionable. In the instant
matter, the Jaureguis’ cause of action against the City
accrued when Sandra discovered or reasonably should have
discovered that she had suffered a compensable injury. That
date was no later than the date she was diagnosed with
mesothelioma, September 25, 2015. However, the Jaureguis
did not present their claim to the City until August 22, 2016,
more than 10 months after Sandra was diagnosed. Thus,
they failed to comply with the six-month claim presentation
deadline set forth in Government Code section 911.2.
The other definitions are: “to come by way of increase
6
or addition” and “to be periodically accumulated whether as
an increase or a decrease.” (Webster’s 7th New Collegiate
Dict., supra, at p. 6.)
Black’s Law Dictionary has only one other definition of
7
“accrue”: “To accumulate periodically; to increase over a
period of time .”
13
Accordingly, their action against the City is barred, and the
City’s demurrer should have been sustained.
The Juareguis argue that under Government Code
section 901, “accrue” does not mean ripeness. Rather, they
contend, it means “commencement of the limitations period.”
They note that in Nelson v. Flintkote Co. (1985) 172
Cal. App. 3d 727, the appellate court characterized section
340.2 as a “delayed accrual rule.” (Nelson v. Flintkote Co., at
p. 735.) We acknowledge that many courts have used
“accrue” or “accrual” when referring to the commencement of
the running of the statute of limitations. A likely reason for
the conflation of the two concepts is that in the vast majority
of cases, the date an action accrues is also the date the
statute of limitations begins to run. Our Supreme Court has
recognized, however, that “the accrual of a cause of action” is
distinct from “the beginning of the limitations period.”
(Hamilton, supra, 22 Cal.4th at p. 1144.) Thus, in Hamilton,
the court observed that it would be a “mistake[]” to “equate[]
the accrual of a cause of action for asbestos-related injury
with the beginning of the limitations period prescribed by
section 340.2.” (Ibid.) The court explained: “Before the
enactment of section 340.2, [the] accrual date was also the
date of the beginning of the limitations period in cases in
which the latent injury or disease arose from exposure to
asbestos. [Citation.] But section 340.2 changed that rule,
declaring a separate and distinct date for the beginning of
the limitations period in asbestos cases, i.e., the date of
disability as specially defined in the statute.” (Id. at pp.
14
1144-1145, italics omitted.) Notably, the Hamilton court
never used the term “accrual” when referring to the
beginning of the limitations period. In short, “[a]lthough
commentators have referred to [section 340.2] as providing
for a ‘postponed accrual’ date [citation], it is more accurately
described as a statute of repose -- a time in the future after
which a claimant may not file suit because the claim
becomes stale.” (Barr v. Acands, Inc., supra, 57 Cal.App.4th
at p. 1049.)
The Jaureguis’ argument that “accrue” means only
“commencement of the limitations period” would lead to the
anomalous result that they could not bring the instant
action. As noted, under section 340.2, the limitations period
begins to run on the date of “disability.” Because Sandra
never suffered a “disability,” the limitations period has never
begun to run, and under the Jaureguis’ interpretation their
cause of action has not -- and never will -- accrue. However,
under section 312, “without exception,” an action may not be
filed until the underlying claim “shall have accrued.” Thus,
the Jaureguis could never bring a suit for an asbestos-
related injury or illness. Like other courts, we reject such an
interpretation. (See Barr v. Acands, Inc., supra, 57
Cal.App.4th at p. 1049 [“If a claim for personal injuries
allegedly resulting from asbestos exposure could not accrue
until disability occurred, it would lead to the anomalous
15
result that plaintiffs who did not suffer disability as defined
by the statute would be forever barred from filing suit.”].)8
The Jaureguis further argue that interpreting
“accrued” to mean when a cause of action is ripe would
rewrite Government Code section 901 to excise any reference
to statutes of limitations. We disagree. In the context of
statutes of limitations, accrual refers to the settled common
law accrual rules, including the discovery rule delaying
accrual of a cause of action. (See Aryeh, supra, 55 Cal.4th at
p. 1193 [where statute of limitations uses term “accrued” but
provides no definition, we may assume “the Legislature
intended the well-settled body of law that has built up
around accrual, including the traditional last element rule
and its equitable exceptions, to apply fully here”].) In
Buttram, the court noted that it was “well settled” that “for
statute of limitations purposes,” a cause of action for a latent
injury, such as asbestos-related mesothelioma, does not
accrue “until the plaintiff discovers or reasonably should
have discovered that [she] has suffered a compensable
injury.” (Buttram, supra, 16 Cal.4th at p. 530; accord,
Hamilton, supra, 22 Cal.4th at p. 1144.) Thus, construing
“accrual” in Government Code section 901 as our Supreme
We note that the Legislature has not acted on Justice
8
Brown’s suggestion to revisit and revise the “cumbersome
and confusing” language of section 340.2, which has created
several “anomalous,” “bizarre” and likely unintended results.
(See Hamilton, supra, 22 Cal.4th at p. 1152 (conc. opn. of
Brown, J.).)
16
Court has done “for statute of limitations purposes” is
consistent with the statutory language.
Finally, the Jaureguis contend that the intent and
purpose of section 340.2 -- “to provide a unique and forgiving
limitations period to those suffering from an asbestos-related
illness” -- warrants interpreting Government Code section
901 to permit them to present an asbestos-related claim
against the City at any time prior to filing their action
against the City. However, the intent and purpose
animating section 340.2 must be balanced against the intent
and purposes animating the Government Claims Act. As
noted, the purposes of the Government Claims Act are (1) to
provide the public entity with sufficient information to
enable it to adequately investigate and settle claims, and (2)
to enable the entity to account for potential liabilities and to
avoid similar liabilities in the future. (City of Stockton v.
Superior Court, supra, 42 Cal.4th at p. 738.) “Moreover, the
intent of the Government Claims Act is ‘not to expand the
rights of plaintiffs against government entities. Rather, the
intent of the act is to confine potential governmental liability
to rigidly delineated circumstances.’ [Citation.]” (DiCampli-
Mintz v. County of Santa Clara (2012) 55 Cal. 4th 983, 991.)
An unlimited claim presentation period expanding the rights
of plaintiffs against government entities would frustrate the
intent and purposes of the Government Claims Act. It could
hamper a public entity from taking immediate remedial
action -- such as using asbestos-free products -- and impede
its fiscal planning. (See Johnson v. San Diego Unified
17
School Dist. (1990) 217 Cal. App. 3d 692, 696-697 [“‘claims
statute provides an opportunity to the public entity to
quickly rectify a dangerous condition and . . . to take the
potential claim into account in its fiscal planning’”].)
Moreover, the Juareguis have pointed to nothing in the
language or legislative history of section 340.2 to suggest
that the Legislature intended, sub silencio, to amend the six-
month claim presentation deadline in the Government
Claims Act. On this point, we find the 2002 amendment to
section 340.1 instructive. In 2002, the Legislature amended
section 340.1 by adding, inter alia, subdivision (c) which
provides that any claims for damages arising from childhood
sex abuse that would otherwise be barred solely because the
applicable statute of limitations has or had expired “is
revived, and, in that case, a cause of action may be
commenced within one year of January 1, 2003.” (§ 340.1,
subd. (c).) Subsequently, our Supreme Court was asked to
determine whether a plaintiff who failed to present a timely
claim to a public entity could thereafter bring a claim for
childhood sex abuse against the entity under the amended
section 340.1. The court concluded the answer was “no.”
(Shirk v. Vista Unified School Dist. (2007) 42 Cal. 4th 201,
205 (Shirk), superseded by statute as stated in A.M. v.
Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252.)
The court observed that section 340.1, subdivision (c) revived
only claims barred solely because of the applicable statute of
limitations. However, “the government claim presentation
deadline is not a statute of limitations.” Thus, section 340.1
18
did not revive those claims barred by failure to comply with
the claim presentation requirement. (Shirk, supra, at p.
213.)
Moreover, as the appellate court in S.M. v. Los Angeles
Unified School Dist. (2010) 184 Cal. App. 4th 712 (S.M.)
observed, although section 340.1 extended “the time during
which a victim of childhood sexual abuse may sue, . . . it [did]
not alter the cause of action’s accrual date, which is when
the molestation occurred subject to any applicable delayed
discovery. [Citation.] It is the date of accrual that triggers
the government tort claim filing requirement, a predicate
not addressed by section 340.1.” (Id. at p. 721.)
Following Shirk, the Legislature enacted Government
Code section 905, subdivision (m), adding childhood sex
abuse claims “arising out of conduct occurring on or after
January 1, 2009” to those claims exempted from the
government claim presentation requirement. (See Gov.
Code, § 905 [listing exempted claims].) Notably, the
Legislature did not overrule Shirk’s holding for childhood
abuse claims arising from conduct occurring prior to 2009.
(See S.M., supra, 184 Cal.App.4th at p. 721, fn. 6.) Nor did
the Legislature address the date of accrual for such claims.
Here, in enacting section 340.2, the Legislature
extended the limitations period for asbestos-related actions.
It neither exempted those causes of action from the claim
presentation requirement nor altered when such actions
accrued. (See Nelson v. Flintkote Co., supra, 172 Cal.App.3d
at p. 730 [noting that prior to enactment of section 340.2,
19
asbestos-related causes of action were “governed by the
general one-year tort statute of limitations set forth in
section 340, subdivision (3) . . .”].) Thus, while section 340.2
modified the limitations period for commencing asbestos-
related causes of action against both public and nonpublic
entities, it did not modify the claim presentation deadline
because it did not address the date of accrual for those
actions. That date remains, as set forth in Supreme Court
precedent, the date the Jaureguis “discover[ed] or should
reasonably have discovered” that Sandra was suffering from
mesothelioma. (Hamilton, supra, 22 Cal.4th at p. 1144.)
Lastly, we note our interpretation of Government Code
section 901 does not bar an action by a plaintiff who, years
after exposure to asbestos, discovers she has suffered a
compensable injury. It requires only that after making such
a discovery, she promptly present a claim to the
governmental entity she seeks to hold responsible.9
We note that pending before the Supreme Court is
9
Rubenstein v. Doe No. 1 (2016) 245 Cal. App. 4th 1037 [2016
Cal.App. LEXIS 211], review granted June 15, 2016,
S234269. During oral arguments before the court, the
parties disputed whether the discovery rule would delay the
date of accrual of Rubenstein’s childhood sex abuse claim
and thus render her claim timely under the Government
Claims Act. No such issue is presented here, as the City
concedes the Jaureguis are entitled to the benefits of the
discovery rule. More important, our holding incorporates the
discovery rule. Under our holding, the six-month claim
presentation deadline for asbestos-related disease is
20
DISPOSITION
Let a peremptory writ of mandate issue directing that
respondent superior court vacate its order overruling
petitioner’s demurrer, and enter a new order sustaining
petitioner’s demurrer in its entirety. The order to show
cause, having served its purpose, is discharged, and the
temporary stay is vacated effective upon the issuance of the
remittur. Petitioner is entitled to its costs in this writ
proceeding.
CERTIFIED FOR PUBLICATION.
MANELLA, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
calculated from the date of discovery, which in the instant
case is no later than the date of diagnosis.
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