Filed 7/23/14 KIug v. City of Laguna Beach CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


TRACE KLUG et al.,

     Plaintiffs and Appellants,                                        G048554

         v.                                                            (Super. Ct. No. 30-2013-00623828)

CITY OF LAGUNA BEACH,                                                  OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County,
Charles Margines, Judge. Affirmed.
                   Wentworth, Paoli & Purdy and Court B. Purdy for Plaintiffs and
Appellants.
                   Rutan & Tucker, Philip D. Kohn, Peter J. Howell and Ann Levin for
Defendant and Respondent.
                                             *               *               *
                                       INTRODUCTION
              Trace Klug and Robert Klug and their minor children, Makayla Klug and
Spencer Klug (the Klugs), submitted claims against the City of Laguna Beach (the City)
for personal injury and real property damage.1 The Klugs claimed they suffered health
problems and diminution in the value of their home due to diesel exhaust fumes from the
City-owned fire station next door to their home. The City rejected the Klugs’ claims as
untimely and denied their application for permission to file a late claim.
              After a hearing, the trial court denied the Klugs’ petition for relief to file a
late claim. We affirm. Neither the delayed discovery doctrine nor the doctrine of
estoppel applies in this case.


                    STATEMENT OF FACTS AND PROCEDURAL HISTORY
              In 2004, the Klugs moved into a residence on Second Avenue in the City.
Their residence was located next door to a fire station owned and operated by the City;
the fire station has been in continuous operation since 1953. From shortly after the Klugs
moved into the residence until December 2011, Trace and Robert complained to the City
and its employees that diesel exhaust fumes from the fire station were causing them
harm.
              On September 26, 2012, the Klugs presented four separate claims—one on
behalf of each member of the family—against the City, pursuant to Government Code
section 810 et seq. (All further statutory references are to the Government Code.) Each
averred that his or her damage or injury occurred “since approximately June 2004.” On
October 4, the City responded to the Klugs’ claims as follows: “The portion of the claim
alleging personal injury or personal property damage that occurred more than six months
prior to September 26, 2012, as required by law, is being returned as untimely, as is the

        1
         As appropriate, we will refer to the Klugs by their first names for clarity. We
intend no disrespect.

                                              2
portion alleging real property damage that occurred more than one year prior to
September 26, 2012. . . . Because those portions of the claim were not presented within
the time allowed by law, no action was taken on those portions.” The City advised the
Klugs that their only recourse was to apply for leave to present a late claim.2
              On October 9, 2012, the Klugs submitted an application to the City for
permission to file a late claim. The City rejected the application. The Klugs then filed a
petition in the trial court for relief to file a late claim. The City filed an opposition to the
petition. After a hearing, the trial court denied the petition. The Klugs timely appealed.


                                          DISCUSSION
                                               I.
                                    STANDARD OF REVIEW
              We review the denial of a petition for relief to file a late claim against a
public entity for abuse of discretion. (Bettencourt v. Los Rios Community College Dist.
(1986) 42 Cal.3d 270, 275.)


                                               II.
                                     DELAYED DISCOVERY
              The limitations period for claims against a public entity is set forth in
section 911.2, subdivision (a): “A claim relating to a cause of action . . . for injury to
person or to personal property . . . shall be presented . . . not later than six months after
the accrual of the cause of action. A claim relating to any other cause of action shall be
presented . . . not later than one year after the accrual of the cause of action.” An

       2
         The City, in a separate letter, advised the Klugs their claims were insufficient
because they failed “to provide more specific dates and circumstances [within the
relevant time periods] that give rise to the claims” and injury, loss, or damages, and gave
them an opportunity to amend their claims to rectify the insufficiencies. The Klugs did
not attempt to amend their claims.

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application for relief from the requirements of section 911.2 may be presented to the
public entity “within a reasonable time not to exceed one year after the accrual of the
cause of action.” (§ 911.4, subd. (b).) The one-year extension applies to both adult and
minor claimants. (§ 911.4, subd. (c)(1); V.C. v. Los Angeles Unified School Dist. (2006)
139 Cal.App.4th 499, 508.)
              “A cause of action ordinarily accrues when the wrongful act occurs, the
liability arises, and the plaintiff is entitled to prosecute an action.” (Ovando v. County of
Los Angeles (2008) 159 Cal.App.4th 42, 66.) The Klugs’ claims against the City, on their
face, alleged their causes of action accrued “since approximately June 2004.”
              The Klugs nevertheless claim the delayed discovery rule makes their claims
timely. This rule was explained by the court in S.M. v. Los Angeles Unified School Dist.
(2010) 184 Cal.App.4th 712, 717: “Under this doctrine, a cause of action does not accrue
until the plaintiff discovers, or has reason to discover, the cause of action. [Citation.] A
plaintiff has reason to discover a cause of action when he or she has reason to at least
suspect a factual basis for its elements. Suspicion of one or more of the elements,
coupled with knowledge of any remaining elements, will generally trigger the applicable
limitations period. [Citation.] This refers to the ‘generic’ elements of wrongdoing,
causation, and harm and does not require a hypertechnical approach. Instead, ‘we look to
whether the plaintiffs have reason to at least suspect that a type of wrongdoing has
injured them.’ [Citation.]” In order to rely on the delayed discovery rule, the plaintiff
must “‘show (1) the time and manner of discovery and (2) the inability to have made
earlier discovery despite reasonable diligence.’” (CAMSI IV v. Hunter Technology Corp.
(1991) 230 Cal.App.3d 1525, 1536.)
              The evidence before the trial court showed the Klugs suspected they had
been harmed by the diesel exhaust fumes from the fire station long before the date on
which they filed their claims. (Miller v. Lakeside Village Condominium Assn. (1991)
1 Cal.App.4th 1611, 1623-1624 [the plaintiff’s awareness of mold and belief that it had

                                              4
caused a temporary worsening of her symptoms caused her claim to accrue, despite the
fact the claim was for much more severe damage].) In their declarations in support of the
petition for relief to file a late claim, Trace and Robert declared:
               1. They lived next door to the fire station from June 15, 2004 to August 31,
2012.
               2. “During [their] tenancy at this home,” the Klugs “began to suffer from
many strange, non pre-existing and difficult to diagnose medical issues.”
               3. “In the latter part of 2011, . . . [Trace] was concerned about diesel
exhaust in general but did not suspect that Makayla and the rest of [the] family’s medical
issues were related to exposure to diesel exhaust or the proximity to the fire station.”
               4. “From October to December 2011, . . . [Trace] did not believe or suspect
that [her] deteriorating health or that of [her] family was being directly caused by living
next to Fire Station 4 but [she] was concerned that increased exposure to excessive diesel
fumes could make these conditions worse.” Robert did not share Trace’s concerns “and
did not believe that there were any health and safety issues with respect [to] our living
next to the Fire Station.”
               5. After the Klugs moved out of their home, Trace and Robert began to
suspect that their family’s health problems were caused by exposure to diesel exhaust
fumes because their children’s health conditions began to improve and all the Klugs felt
much better.
               Trace’s contemporaneous verbal and written statements, however, showed
the Klugs did, in fact, suspect the diesel exhaust fumes were a cause of their injury long
before moving out of their home. As early as 2006, Trace complained to the City’s fire
chief, Jeff Latendresse, “about diesel exhaust from the Fire Station allegedly invading her
home and harming her family.” In March 2009, Trace told Fire Captain Bobby Scruggs,
“the diesel fumes invading her home . . . w[ere] harmful for her family but mostly to her



                                               5
children.” In April 2009, then Fire Chief Mike Macey wrote a letter to Trace to address
the concerns she had expressed regarding, among other things, diesel exhaust fumes.
              In an e-mail to the City’s city manager and then fire chief on October 5,
2011, Trace wrote: “Our 10 yr old has possible MS, with optic neuritis and MS type
lesions on her Cerebellum which is extremely rare for her age with chronic debilitating
headaches. My son and myself also suffer from headaches, all of us have these
headaches, triggered by smoke and gas fumes. [¶] . . . [¶] My husband and I are highly
educated and I am a Pediatric, Neonatal Nurse, so we are aware of the danger you are
putting our kids in. My daughter[’]s Neurologist and Pediatrician both agree that the
toxic fumes from the station 4 being so close to our home can easily help trigger an
autoimmune reaction and headaches. [¶] This will be our last personal request before
our attorney, Matthew Tonkovich pursues legal action.” (Italics added.)
              An e-mail from Trace, on November 8, 2011, to members of the City
Council read: “I have a serious request regarding Fire Station #4. The Fire truck is so
old and run down that dangerous diesel exhaust is being blown into our family’s home
multiple times a day and is causing serious headaches, allergic reactions and long term
damaging effects on our family. My daughter has chronic severe migraine headaches
and has either the early stages of MS or another autoimmune problem that her doctors
are monitoring. She is only able to go to school part time because of these headaches
and the fire engine exhaust is a trigger. I also have terrible headaches if I breathe in the
exhaust from the fire truck. We have to run in to the house if the truck is moving and
close the front door as fast as we can so we don’t breathe the fumes because the truck is
so close to our home. We need a new environmentally friendly fire truck not only for my
family’s health but for the firefighters[’] health. The fire station needs to be rebuilt or
moved so that it is up to modern fire safety standards, so that the truck can go in and out
as well without having to drive on our neighbors[’] property, and blow exhaust into our
home each time. We have an attorney, Matthew Tonkovich, who knows the situation and

                                              6
Makayla’s Pediatrician, Frances Duda, and Neurologist, Andrew McIntosh, are also
ready to help our situation. We can not move because we bought the house at the peak of
the market. The noise has not been the problem for us, it[’]s the diesel exhaust that we
have become more and more sensitive to over the years. I just hope it is not to[o] late to
prevent other health problems like cancer, for my family.” (Italics added.)
              Trace sent another e-mail to the City Council members on December 29,
2011, stating: “I wanted to follow up on my email from last time and let you know that I
have done more research on the toxic effects to children from diesel exhaust. The day
[M]akayla[’]s headaches became severe again was when the turbo was out on the truck
and the diesel was even worse than usual, they were so severe that her MD sent her to
[Children’s Hospital of Orange County] again in case more [MS] symptoms were
starting—thankfully we switched headache meds. [M]akayla has had serious health
issues—optic neuritis which is very rare for kids—causing damage for her fine ocular
balance skills, possible MS or another chronic inflammation problem as well as an
allergen ca[u]sing bags under her eyes, chronic cough, headache. [W]e have spent
2 years trying to figure out the cause—dr duda believes it[’]s an allergic response to
something causing headache etc. we all also get a lot of sinus colds at least once a month,
my son had to have tonsils/adenoids out. I have had 2 sinus surgeries and also have had
shingles 6 times in this house and serious widespread inflammation also causing early
degenerative arthritis in my ne[c]k and jaw and fibromyalgia. [M]akayla and myself
have to take strong headache medication and daily [M]otrin for chronic inflammation.
[¶] My neighbor . . . moved and rent out . . . their house next door because of the noise,
shaking and diesel fuel of the truck. [T]heir daughter had severe allergies living next
door as well and she sent many complaints to you a few years ago and I wish I would
have helped her because the long term effects on our family has been devastating. [W]e
all have or have had serious health problems easily related to exposure to diesel and our
doctors agree that it is definitely a good possibility and they have all been documented

                                             7
now in our doctors files. [O]ur medical bills for the last 5 yrs are easily $100,000. . . . [¶]
I am absolutely positive that the . . . diesel exhaust that we smell in our house is harming
us and we need that truck moved now. . . . [¶] I have called for years . . . but never in
writing because my parents are both attorneys and said I would have to disclose to
someone trying to buy our house.” (Italics added.)
                In a reply declaration in support of the petition for relief to file a late claim,
Trace disclaimed her statements in the October 2011 and December 2011 e-mails that the
diesel exhaust fumes from the fire station were the cause of her family’s injuries. Trace
claimed she made those statements in an effort to get the City to take her complaints
seriously, not because they were true.3
                Trace’s reply declaration also notes the earlier communications with the
City and its employees regarding the diesel exhaust fumes at the fire station never
“make[] . . . reference to me making a complaint that diesel fumes w[ere] causing actual
injury or harm to me or to my family.”
                The overwhelming evidence before the trial court supported the finding the
delayed discovery doctrine did not toll accrual of the Klugs’ claims and the conclusion
the petition for relief to file late claims should be denied. The Klugs focus on Trace’s
October 5, 2011 e-mail, and contend that using that e-mail as the benchmark shows their
claims were filed only four days late. But the evidence shows the Klugs had a reasonable
suspicion of the connection between their health problems and the diesel exhaust fumes
well before that date. Actual knowledge is not the test—the Klugs’ “‘suspicions were
undeniably aroused’” more than one year before the petition for relief was filed. (Reyes
v. County of Los Angeles (1988) 197 Cal.App.3d 584, 592.)




       3
           The trial court did not believe Trace’s disclaimer.

                                                 8
                                             III.
                                          ESTOPPEL
              The Klugs argue the City should be estopped from raising the statute of
limitations to block their claims because the City’s employees made material
misrepresentations to the Klugs. The estoppel doctrine in this context was explained by
the court in Castaneda v. Department of Corrections & Rehabilitation (2013) 212
Cal.App.4th 1051, 1064: “‘A public entity may be estopped from asserting the
limitations of the tort claims statutes where its agents or employees have prevented or
deterred the filing of a timely claim by some affirmative act. The required elements for
an equitable estoppel are: (1) the party to be estopped must be apprised of the facts;
(2) the party to be estopped must intend his or her conduct shall be acted upon, or must so
act that the party asserting the estoppel had a right to believe it was so intended; (3) the
other party must be ignorant of the true state of facts; and (4) the other party must rely
upon the conduct to his or her injury. [Citation.]’ [Citation.]”
              The Klugs do not argue the City or its employees or representatives induced
them not to file a timely claim against the City.4 What the Klugs argue is the
misrepresentation of facts regarding the dangerousness of the diesel exhaust fumes from
the fire station prevented them from further investigating whether there was a causal
connection between those fumes and their family’s health problems. There are two
fundamental problems with this argument.
              First, once the Klugs had reason to suspect their health problems were
caused or worsened by the diesel exhaust fumes, their claims against the City accrued,
and later misrepresentations could not change such accrual. (Reyes v. County of Los

       4
          Such a claim would be meritless. A public entity cannot be estopped from
relying on the statute of limitations by denying liability or disputing the claimant’s
factual allegations. (See Tyus v. City of Los Angeles (1977) 74 Cal.App.3d 667, 673.)

                                              9
Angeles, supra, 197 Cal.App.3d at p. 595 [“Concealment does not toll accrual once
discovery has occurred”].)
              Second, the trial court excluded all of the evidence on which the Klugs rely
to establish the City’s employees and representatives made material misrepresentations or
concealed the true facts. That ruling by the trial court is not challenged on appeal.


                                             IV.
                                 MINOR CHILDREN’S CLAIMS
              The Klugs argue the trial court abused its discretion by failing to provide
relief to the minor children. They fail, however, to explain why the minor children’s
claims should be treated differently from those of Trace and Robert. Section 911.4,
subdivision (c)(1) provides the one-year limitation for an application to the public entity
for leave to file a late claim applies to minors: “In computing the one-year period under
subdivision (b), . . . [¶] . . . [t]he time during which the person who sustained the alleged
injury, damage, or loss as a minor shall be counted.” The statutory exceptions for minors
who have been adjudged to be dependents of the juvenile court (§ 911.4, subd. (c)(2) &
(3)), or who are mentally incapacitated and do not have an appointed guardian or
conservator (§ 911.4, subd. (c)(1)), are not applicable here.


                                              V.
                                DAMAGE TO REAL PROPERTY
              The Klugs argue the trial court abused its discretion by failing to provide
relief to them based on the claims for damage to real property. The Klugs contend they
had no claim for diminution in the value of their real property until the property was sold
in July 2012. A claim for diminution in the value of real property may be asserted before
the property is sold, however. (Varjabedian v. City of Madera (1977) 20 Cal.3d 285,
290, 294 [damages awarded for estimated decline in property’s market value due to odors

                                              10
from the defendant’s nearby sewage plant].) Additionally, the Klugs failed to show they
had a statutory right to petition for relief to file a late claim as to their real property
claims. As the City points out, a petition for relief to the trial court follows on the denial
of an application for leave to present a claim, pursuant to section 911.4. Section 911.4
only authorizes an application for leave to file a late claim for claims subject to the
six-month statute of limitations, meaning only claims for personal injury or personal
property damages are eligible.


                                               VI.
                     ALLEGED VIOLATIONS OF SECTIONS 910.8 AND 911.8
               Finally, the Klugs raise two procedural arguments regarding the City’s
denial of their claims and the application to file a late claim. First, the Klugs argue the
City’s initial response to their claims violated section 910.8, which reads as follows: “If,
in the opinion of the board or the person designated by it, a claim as presented fails to
comply substantially with the requirements of Sections 910 and 910.2, or with the
requirements of a form provided under Section 910.4 if a claim is presented pursuant
thereto, the board or the person may, at any time within 20 days after the claim is
presented, give written notice of its insufficiency, stating with particularity the defects or
omissions therein. The notice shall be given in the manner prescribed by Section 915.4.
The board may not take action on the claim for a period of 15 days after the notice is
given.”
               The Klugs contend that because one of the letters the City sent on
October 4, 2012 advised the Klugs the claims were insufficient, and the other letter
denied the four claims as untimely, the two letters were, at best, misleading and
confusing; alternatively, the Klugs contend the denial of the claims was prohibited
because the City could not undertake any action for 15 days after the insufficiency letter
was sent.

                                               11
               We agree with the City’s reading of the two letters as advising the Klugs
that any claims for injuries suffered more than six months before the date of the claims
were untimely, and any claims for injuries suffered less than six months before the date
of the claims were insufficient. Further, as the City notes, the failure to comply with
section 910.8 is not grounds for a petition under section 946.6.
               The Klugs also argue the City’s notice denying their application to file a
late claim violated section 911.8, negating the denial of the application. Section 911.8
provides: “(a) Written notice of the board’s action upon the application [for leave to
present a late claim] shall be given in the manner prescribed by Section 915.4. [¶] (b) If
the application is denied, the notice shall include a warning in substantially the following
form: [¶] ‘WARNING [¶] ‘If you wish to file a court action on this matter, you must first
petition the appropriate court for an order relieving you from the provisions of
Government Code Section 945.4 (claims presentation requirement). See Government
Code Section 946.6. Such petition must be filed with the court within six (6) months
from the date your application for leave to present a late claim was denied. [¶] ‘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.’”
               The City’s rejection of the Klugs’ application for leave to present a late
claim did not include the warning language from section 911.8. “[T]he obvious intent
of subdivision (b) of section 911.8 was to give an unsuccessful applicant the information
that applicant would need in order to file a timely section 946.6 petition.” (D.C. v.
Oakdale Joint Unified School Dist. (2012) 203 Cal.App.4th 1572, 1580.) If a public
entity fails to provide the notice required by section 911.8, subdivision (b), and the
claimant’s petition for relief under section 946.6 is filed late, the public entity may be
estopped from blocking the petition on the ground of tardiness. (D.C. v. Oakdale Joint
Unified School Dist., supra, at p. 1582.) In this case, however, the Klugs’ petition for
relief was timely filed in the trial court.

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                                  DISPOSITION
          The judgment is affirmed. Respondent to recover its costs on appeal.




                                            FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




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