Filed 9/4/15 Frank Z. v. Los Angeles Unified School Dist. CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


FRANK Z.,                                                            B258812

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BS149054)
         v.

LOS ANGELES UNIFIED SCHOOL
DISTRICT,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Joanne B. O’Donnell, Judge. Affirmed.


         Owen Patterson & Owen, Susan A. Owen, Tamiko B. Herron for Plaintiff and
Appellant.


         Sedgwick, Craig S. Barnes, Michael M. Walsh; Andrade Gonzalez, Sean A.
Andrade, Stephen V. Masterson for Defendant and Respondent.


                  ___________________________________________________
       As a child, in 1999-2000, plaintiff was exposed to deviant behavior by a school
teacher. In 2014, four years after reaching adulthood, plaintiff made a claim for damages
against the school district; it was rejected as untimely. The trial court denied plaintiff’s
request for relief. (Gov. Code, § 946.6.)1 Plaintiff did not explain why it took him 14
years to realize that the teacher’s conduct was wrong. He did not carry his burden of
showing delayed discovery of the facts, or mistake or excusable neglect. We affirm.
                                           FACTS
                               Plaintiff’s Government Claim
       On April 1, 2014, plaintiff Frank Z., then 22 years of age, presented a claim for
damages to defendant Los Angeles Unified School District (LAUSD) arising from the
acts of codefendant Mark Berndt, a teacher at Miramonte Elementary School. Since
1990, students allegedly complained to LAUSD staff that Berndt engaged in
inappropriate conduct, such as masturbating at his desk during class, trying to touch a
student’s genitals, and having children eat cookies covered with a shiny, whitish
substance. Plaintiff alleges that LAUSD did not act upon the complaints.
       In 2011, a criminal investigation was instituted when the sheriff’s department
received photographs taken by Berndt, depicting blindfolded children with tape over their
mouths. Some had a blue plastic spoon near their mouths, filled with a white, murky
substance. A search of Berndt’s home turned up hundreds of photographs, and a blue
spoon and container that tested positive for Berndt’s semen. Berndt was removed from
the classroom in 2011, then arrested in 2012.
       In 1999-2000, when plaintiff was eight or nine years old, he was a student in
Berndt’s classroom. Plaintiff declares that Berndt acted inappropriately by: blindfolding
plaintiff and feeding him cookies with a “whitish” liquid on them; placing cockroaches
on plaintiff’s desk and photographing him; hugging plaintiff before class; touching
plaintiff’s neck or back; putting his hand up or under plaintiff’s shirt while hugging him;



1      All undesignated section references in this opinion are to the Government Code.


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sitting at the front of the classroom with his hands moving under his shorts and making
strange faces; locking the classroom room and showing old movies while making
“strange noises” at the back of the classroom; and coming to plaintiff’s home on a few
occasions after school or on weekends, to drive him and his siblings or friends around the
neighborhood. Inappropriate or sexual conduct occurred the entire time that plaintiff was
a student in Berndt’s classroom.
       Plaintiff does not disclose whether he told his parents about Berndt’s conduct. He
disavows having suppressed his memories of these events. He does not assert that he hid
the abuse due to threats made by Berndt.
       In his claim, plaintiff stated that prior to September 2013, he “was not aware of the
arrest and prosecution of Berndt and/or the true nature of the sexual acts of Berndt while
[plaintiff] was a student at Miramonte.” Plaintiff declares that he lived in Texas with his
wife before returning to California in January 2014. “It was not until that time that I
realized that the conduct by Berndt, perpetrated upon myself and other Miramonte
students, was wrong. Since I was a child at the time I was in Berndt’s classroom, I was
unable to understand and comprehend the nature of his reprehensible conduct.” Plaintiff
continues, “now finding out about what he did to me, I feel guilt and self-blame, such that
I suffer from anger, anxiety, nightmares and depression. Now, as an adult, I have to live
with the memories of what Berndt did to me and all of the other children that were in my
class at Miramonte.”
       LAUSD returned plaintiff’s claim, as it was not presented within six months of the
tortious event, and advised plaintiff “to apply without delay” for leave to present a late
claim. Plaintiff served LAUSD with his request for leave to present a late claim on
May 5, 2014. His request was denied a few days later.
                       Plaintiff’s Request for Relief in the Trial Court
       Plaintiff petitioned the trial court for relief from government claim filing
requirements. He alleged that his “youth, ignorance and inexperience at the times of the
molestation [made it] impossible for [plaintiff] to have reason to suspect the type of
wrongdoing that injured him.” He trusted his teacher and LAUSD, and did not realize

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that Berndt’s conduct was inappropriate. Plaintiff “was unable to appreciate the
existence, nature and extent of Berndt’s victimization until approximately January 2014,”
because he was in Texas and did not discover that psychological injuries or illnesses he
suffered are directly related to Berndt’s abuse. Plaintiff asserted that his delay in filing a
claim resulted from mistake and excusable neglect, and that LAUSD was not prejudiced
as it had actual notice of Berndt’s misconduct, even before plaintiff attended Miramonte
in 1999-2000.
       LAUSD opposed the petition, arguing that plaintiff’s claim was far too late,
because it had to be presented within one year after accrual. Plaintiff did not plead
unawareness of his victimization, so he cannot invoke the delayed discovery rule.
Plaintiff did not show mistake or excusable neglect. Finally, LAUSD argued that it
would be prejudiced by plaintiff’s delay.
                            THE TRIAL COURT’S RULING
       The trial court wrote that Frank Z. bears the burden of demonstrating that he is
entitled to relief. Plaintiff asserted that his claim was late because he was a minor when
the abuse occurred. He lived outside California and learned of Berndt’s misdeeds upon
his return to California in January 2014.
       The court determined that Frank Z.’s claim accrued at the time of the sexual abuse,
on December 31, 2000, at the latest. The court lacked jurisdiction to grant relief because
a claim application must be filed within a reasonable time, not to exceed one year.
Frank Z.’s application in 2014 was over a decade too late.
       The delayed discovery rule does not assist Frank Z. by postponing the accrual of
his claim. Frank Z. reasonably related that when he was eight or nine years old he did not
comprehend the sexual nature of Berndt’s conduct or realize that Berndt’s acts were
wrongful. However, the delayed discovery doctrine requires “ongoing reasonable
diligence” and Frank Z. did not explain the intervening years between the accrual of his
claim in 2000 and his presentation of a claim in 2014, when he was 22 years old and a
married adult. Plaintiff gave no insight into why his realization that Berndt’s conduct
“was wrong” arose in 2014, but not before. He does not suggest that he “remained

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unaware of the wrongfulness of inappropriate touching by a teacher or a teacher’s
masturbation in the classroom” once he reached the age of majority in 2009. Frank Z.
“fails to establish his inability to discover the relevant facts earlier and therefore fails to
demonstrate that the delayed discovery doctrine postponed the accrual of his cause of
action so as to render his application for leave to present a late claim timely.”
       Even if the delayed discovery rule applies, Frank Z. did not show that his failure to
present a timely claim resulted from mistake, inadvertence, surprise or excusable neglect.
He “does not describe what mistake or neglect led to the untimely presentation of the
underlying claim,” and incorrectly conflates his excusable neglect and delayed discovery
theories. LAUSD need not establish prejudice because Frank Z. failed to show excusable
neglect. The court denied Frank Z.’s petition.
                                        DISCUSSION
       Appeal lies from an order denying relief to a claimant who failed to present a
timely claim to a government entity; the order is reviewed for an abuse of discretion.
(Ebersol v. Cowan (1983) 35 Cal.3d 427, 435, fn. 8; Munoz v. State of California (1995)
33 Cal.App.4th 1767, 1772, fn. 1.) Frank Z. raises several issues on appeal: (1) the
accrual of his claim against LAUSD; (2) the delayed discovery rule; and (3) his mistake
and excusable neglect.
1. The Accrual of Plaintiff’s Claim
       A claim against a public entity arising from injury must be presented within six
months after the cause of action accrues. (§ 911.2.) If the claimant misses the six-month
mark, a late claim must be presented “within a reasonable time not to exceed one year
after the accrual of the cause of action.” (§ 911.4, subd. (b).) “Generally, a cause of
action for child sexual molestation accrues at the time of molestation.” (Shirk v. Vista
Unified School Dist. (2007) 42 Cal.4th 201, 210; J.J. v. County of San Diego (2014) 223
Cal.App.4th 1214, 1222)
       This Court has previously addressed the accrual of a child molestation claim
against LAUSD. In V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th
499 (V.C.), the plaintiff was repeatedly molested by her teacher from 2001 to 2003, when

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she was ages 11 to 13. The victim’s mother suspected wrongdoing, and complained to
LAUSD. In August 2003, the teacher was arrested for his misconduct. A claim
presented to LAUSD in September 2004 was rejected as untimely, and permission to file
a late claim was denied. The minor filed suit. (Id. at pp. 504-505.)
       We acknowledged that in cases of continuous sexual molestation, accrual of a
claim is measured from the date of the last molestation. The victim’s claim was
presented one month too late, under the time limits specified in the Government Code,
because the last molestation was in August 2003, when the teacher was arrested, but no
claim was made until September 2004. The claim accrued even though the plaintiff was
a minor child. V.C.’s failure to present a timely claim barred her lawsuit. (V.C., supra,
139 Cal.App.4th at pp. 509-514.)
       Frank Z. alleges that sexual or psychosexual abuse “occurred during the entire
time” he was Berndt’s student. The last possible accrual date for plaintiff’s claim is in
2000, at the end of plaintiff’s contact with Berndt. Plaintiff’s claim to LAUSD in 2014
far exceeded the permissible filing period.
2. The Delayed Discovery Rule
       While a cause of action generally accrues when a wrongful act is done, accrual
may be postponed under the delayed discovery rule. Under this equitable rule, accrual is
postponed “until the plaintiff discovers, or has reason to discover, the cause of action”
meaning “he at least suspects a factual basis, as opposed to a legal theory, for its
elements, even if he lacks knowledge thereof—when, simply put, he at least ‘suspects . . .
that someone has done something wrong’ to him,” using a lay understanding of what a
“wrong” is. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398; V.C., supra, 139
Cal.App.4th at p. 515; S.M. v. Los Angeles Unified School Dist. (2010) 184 Cal.App.4th
712, 717.)
       The knowledge contemplated by the delayed discovery rule is inquiry notice:
plaintiff “need not know the ‘specific “facts” necessary to establish’ the cause of action;
rather, he may seek to learn such facts through the ‘process contemplated by pretrial
discovery’; but, within the applicable limitations period, he must indeed seek to learn the

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facts necessary to bring the cause of action in the first place—he ‘cannot wait for’ them
‘to find’ him and ‘sit on’ his ‘rights’; he ‘must go find’ them himself and ‘file suit’ if he
does.” (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 398.)
       Frank Z.’s declaration demonstrates that he recalls, in considerable detail, what
occurred in Berndt’s classroom. Plaintiff described Berndt “putting his hands under/up
my shirt when he hugged me.” Plaintiff declared, “I recall seeing Berndt sitting at his
desk in the classroom with his hands under his shorts making strange fac[e]s. I recall
seeing Berndt’s hands moving under his short[s]. At that time, when I was a minor child,
I did not understand that Berndt was masturbating.”
       The trial court accepted—and we accept as well—that eight-year-old Frank Z. did
not understand Berndt’s conduct in 1999-2000. By the time plaintiff reached adulthood,
if not earlier, he would have understood the sexual nature of Berndt’s activities. Plaintiff
cannot rely on his childhood naivete to claim he had no idea that Berndt’s conduct was
wrong until 2014, when he learned of the teacher’s arrest.2
       Plaintiff had an ongoing duty to take action, instead of sitting on his rights.
Taking action did not require awareness of the extensive media coverage about Berndt
and LAUSD. Berndt’s sexual misconduct was an established fact when it took place in
plaintiff’s presence in 1999-2000. Plaintiff did not know it was wrong then, but as an
adult, he does. Plaintiff may have realized in 2014 that there was a legal theory of
recovery for Berndt’s misconduct. Yet inquiry notice does not require knowledge of a
legal theory, just a suspicion of wrongdoing. Plaintiff’s declaration shows awareness of
Berndt’s bad acts since 1999, but no explanation as to why plaintiff did not consider the
wrongdoing actionable until 2014.


2      Plaintiff’s claim to LAUSD, at page 41 of the Clerk’s Transcript, indicates that in
September 2013, he learned of Berndt’s arrest for child molestation and recognized the
sexual nature of Berndt’s classroom behavior. Plaintiff dallied over six months before
presenting his claim in April 2014 after learning of the arrest, using the September 2013
date. Given the passage of years, his continued delay after learning of Berndt’s arrest
was unreasonable per se.


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       Plaintiff relies, unavailingly, on Curtis T. v. County of Los Angeles (2004) 123
Cal.App.4th 1405. In that case, a foster child was sexually abused from ages five to
eight, and filed a claim when he was age 12, within six months after his mother regained
custody of him and discovered the molestations, which the foster parent witnessed but
failed to stop. (Id. at pp. 1411-1412.) The court wrote, “it is reasonable to believe this
minor plaintiff can amend to allege that due to his youth, ignorance, and inexperience,
coupled with his foster parent’s alleged complicity in the abuse, he was unaware that
what was done to him was wrongful prior to his mother’s discovery of the abuse.” (Id. at
p. 1422.) Curtis T. is inapposite, as Curtis was still a child, and unaware that the abusive
conduct allowed by his caregiver was wrongful. Here, Frank Z. had no complicit foster
caregiver, and reached majority four years before filing his claim.
       Plaintiff cites a case in which a 15-year-old was seduced by a teacher, who
engaged in sexual relations with her in empty classrooms for three years, after which the
teacher was arrested for his illegal conduct. (K.J. v. Arcadia Unified School Dist. (2009)
172 Cal.App.4th 1229, 1235.) Accrual was delayed for 11 months after arrest because
the student “believed she was in love with him,” “felt dependency, loyalty, affection and
friendship,” and required psychotherapy to understand that she was victimized. (Id. at
pp. 1234, 1240.) While Frank Z. may have been trusting toward Berndt in 1999-2000, as
a youngster in Berndt’s classroom, he did not have a loving or dependent sexual
relationship for three years, unlike the K.J. scenario. Frank Z. claims no contact with
Berndt after 2000, let alone into adulthood.
       Far more relevant to our discussion is the Supreme Court’s decision in Shirk v.
Vista Unified School Dist., supra, 42 Cal.4th 201, in which a 41-year-old plaintiff sued a
school district for sexual molestations by a teacher that occurred when she was 15. As an
adult, Shirk encountered the teacher, was “‘very upset,’” and consulted a mental health
professional, who told her that she was suffering psychological injuries due to the long-
ago abuse. (Id. at pp. 205, 210.) Shirk’s belated realization of harm did not cause her
claim to accrue (or reaccrue) when she discovered her adult-onset psychological injury.
(Id. at pp. 210-214.)

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       Plaintiff failed to carry his burden of showing that his delay was not the result of
negligence, or that he had no actual or presumptive knowledge of facts sufficient to put
him on inquiry. (V.C., supra, 139 Cal.App.4th at p. 516.) His cause of action accrued
long before he turned 22 years of age. The trial court correctly determined that there are
no facts supporting application of the delayed discovery rule.
3. Petition for Judicial Relief
       A claimant may seek judicial relief within six months after a public entity denies
leave to present a late claim. (§ 946.6, subd. (b).) Frank Z. timely filed his petition for
relief with the trial court one month after LAUSD denied his application for leave to file
a late claim, well within the six-month statutory period.
       Section 946.6 is “a remedial statute intended to provide relief from technical rules
which otherwise provide a trap for the unwary claimant,” to encourage hearing cases on
their merits, if possible. (Ebersol v. Cowan, supra, 35 Cal.3d at p. 435.) The court shall
relieve the petitioner if (1) application to file a late claim was made to the public entity
“within a reasonable time,” not to exceed one year from the date the cause of action
accrued and (2) failure to present the claim resulted from mistake, inadvertence, surprise
or excusable neglect, unless the public entity shows that it would be prejudiced in its
defense of the claim. (§§ 946.6, subd. (c), 911.4, subd. (b).)
       Frank Z. did not meet the requirements of section 946.6 because his application to
present a late claim to LAUSD was made more than one year after the accrual of the
cause of action. This requirement is jurisdictional: if the application to file a late claim
“is filed more than one year after the accrual of the cause of action, the court is without
jurisdiction to grant relief” under section 946.6. (J.J. v. County of San Diego, supra, 223
Cal.App.4th at p. 1221.) In calculating the one-year period in which to file a late claim
with a public entity, “[t]he time during which the person who sustained the alleged injury,
damage, or loss as a minor shall be counted,” unless he or she is mentally incapacitated




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and does not have a guardian or conservator. (§ 911.4, subd. (c)(1).)3 The trial court
correctly determined that it had no jurisdiction to grant relief.
       Frank Z. observes that the trial court’s denial of relief is examined more rigorously
than where relief is granted, and its discretion may be abused where adequate cause for
relief is shown by uncontradicted evidence or affidavits of the petitioner. (Ebersol v.
Cowan, supra, 35 Cal.3d at p. 435; Bettencourt v. Los Rios Community College Dist.
(1986) 42 Cal.3d 270, 275-276.) By the same token, “[t]he policy favoring trial on the
merits cannot be applied indiscriminately to render statutory time limits ineffective.”
(Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1382.)
       The uncontradicted evidence in this case shows that Frank Z. was personally
subjected to inappropriate conduct by his teacher in 1999-2000. He provided no credible
reason why he failed to file a claim with LAUSD before 2014. Merely living in Texas
for a period of time does not excuse plaintiff’s failure to hire a lawyer and file a timely
claim in California, once he was old enough to comprehend the nature of Berndt’s
actions. Though LAUSD knew of Berndt’s conduct before it received Frank Z.’s claim,
plaintiff still had to comply with the claims statutes: “Even if the public entity has actual
knowledge of facts that might support a claim, the claims statutes still must be satisfied.”
(DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991.) The trial court
did not abuse its discretion by rejecting Frank Z.’s argument that mistake or excusable
neglect precluded him from submitting a timely initial claim.




3      Plaintiff does not argue that his delay was caused by mental incapacity.


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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                    BOREN, P.J.
We concur:


     CHAVEZ, J.


     HOFFSTADT, J.




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