Deadlines for a California Wildfire Claim

What a Wildfire Claim Deadline Is and Why It Controls Your Case

A statute of limitations is a law that sets a window of time to file a lawsuit. Once that window closes, a court generally will not hear the claim, however strong the facts are. For a family after a fire, that is the real stake: a claim filed too late can end without anyone ever looking at what caused the fire.

California does not set one deadline for every wildfire loss. An injury to a person, damage to a home or land, the loss of trees, a dispute with your own insurer and a claim against a government body each follow their own rule. Which deadline applies depends on two things: what was harmed, and who is being held responsible.

That second question matters right away. If a city, a county, a state agency or another public entity may be responsible, the ordinary lawsuit periods do not govern. The California Government Code sets its own rules, and they begin with a step that has to happen before any lawsuit can be filed.

For someone sorting this out, the two questions to weigh first are the same ones the law asks: what was harmed, and who might be connected to the fire. Those answers point to which of the sections below applies. For a broader look at how these cases work, including fire liability rules, see the overview of the California wildfire lawyer practice area.

If a Business or Individual Caused the Fire: Filing Deadlines for Injury, Property, and Trees

Three California statutes set the main lawsuit periods for wildfire harm caused by a private party, such as a business or an individual.

If you or a family member was hurt, or someone died, section 335.1 of the California Code of Civil Procedure applies. It allows two years for "an action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another." That one rule covers both a person hurt in a fire and a family's claim after a death.

If your home, barn, fence or land was damaged, section 338 of the California Code of Civil Procedure applies. It allows three years for "an action for trespass upon or injury to real property," which is the legal term for land and what is built on it. Belongings lost in the fire fall under the same section, which allows three years for "an action for taking, detaining, or injuring goods or chattels." The section also allows three years for "an action upon a liability created by statute, other than a penalty or forfeiture."

If trees on your land burned, section 3346 of the California Civil Code applies. It covers "wrongful injuries to timber, trees, or underwood upon the land of another," and subdivision (c) states that an action for those damages "must be commenced within five years from the date of the trespass."

A period "starts to run" on the day the clock begins counting. For trees, the statute names that day: the date of the trespass. For injury and property claims, the clock generally runs from when the claim arises, a point lawyers call accrual. What is at stake is that the shortest of these periods, the two years for injury, can close while the property and tree claims are still open. A family may find it useful to note which of these three kinds of harm it has, and the date each began, as a basis for asking an attorney when each clock started. Suits against an insurer and claims against public entities follow the separate tracks described below.

Why the Deadline That Applies to Your Situation May Not Be the One You Expect

One fire can open several claims at once, each on its own clock. A family that lost a home, a stand of oaks and a parent's health may have a property claim, a tree claim and an injury claim from the same day. On the private-party track, those run for three, five and two years.

That overlap is where families can be caught off guard. Someone who hears "three years" for a burned house may assume the same window covers a smoke injury, when the injury period is shorter. Someone who hears "five years" for trees may assume it reaches everything on the land. Each harm is measured by its own rule.

California courts also apply what is called the discovery rule. In some circumstances, a limitations period begins when a person knew, or reasonably should have known, of the injury and its cause, rather than on the date of the event itself. It is a principle developed by the courts, not a blanket extension. Whether it applies, and from what date, turns on the specific facts, and it does not move every deadline.

The deadline that governs also depends on who may be responsible. The same burned home is on one clock if a private company is involved and on a very different one if a public entity is. Families in this position often find it helpful to write down each kind of loss, the date it happened or was first noticed, and every party that might be connected to the fire. That list is the starting point for sorting out which period applies to which claim, a question that is worth talking through with an attorney rather than guessing.

If Your Insurer Is Disputing the Claim: The Standard Fire Policy's Time Limits

If the problem is with your own insurance company, the policy carries a deadline of its own. Section 2071 of the California Insurance Code adopts "the standard form of fire insurance policy for this state," the California Standard Form Fire Insurance Policy. Its terms are written into the statute, and it insures property "to the extent of the actual cash value of the property at the time of loss," up to what it would cost to repair or replace it with like material "within a reasonable time after the loss."

The standard form also limits how long a policyholder has to sue the insurer over a claim, and it allows a longer period when the loss is tied to a declared state of emergency, as many California wildfires are. For a family waiting on a denial or a low offer, the stake is that this window can keep running while letters go back and forth. The policy terms in section 2071, and the policy itself, set the length of each period and the event that starts it.

This is a separate track. The insurance suit period governs a case against your own insurer under the policy. It does not govern a claim against a company, a person or a public entity whose conduct may be connected to the fire, and those claims do not govern the insurance suit. A family can be working on one while the other clock is running.

The stake is that a policyholder focused on the civil lawsuit clock may lose track of the insurance window, or the reverse. Families often keep the full policy, every letter from the insurer, claim numbers and notes of each call, because those records show the dates the policy's time limits may turn on. Questions a family may bring to an attorney include whether the loss is tied to a declared state of emergency and which date in those records started the policy's clock.

If a Government Entity May Be Responsible: A Shorter, Separate Track

Before anyone can sue a public entity in California, a written claim generally has to be presented to that entity first. Presenting a claim means giving the entity a formal written notice of the claim, as the Government Code requires, before a lawsuit can be filed. It is a separate step from filing a complaint in court.

The time to present it is set by section 911.2 of the California Government Code. A claim "for death or for injury to person or to personal property or growing crops" must be presented "not later than six months after the accrual of the cause of action." A claim for any other cause of action, which can include damage to land and buildings, must be presented "not later than one year after the accrual of the cause of action." For a claim presented to the state's Department of General Services, the statute ties the presentation date to submitting the claim with a $25 filing fee or with an affidavit requesting a fee waiver.

If the entity responds to your claim, a second clock starts. Under section 945.6 of the California Government Code, subject to exceptions in that section and in sections 946.4 and 946.6, the suit generally must be filed "not later than six months after the date" the entity's written notice under Section 913 "is personally delivered or deposited in the mail." For a claimant, that makes the date the notice arrives or is mailed worth keeping. If that notice is not given, the suit must be filed "within two years from the accrual of the cause of action," and any extension of the entity's time to act under subdivision (b) of Section 912.4 is not counted.

A missed six-month claim has one path. Section 911.4 of the California Government Code allows "a written application" to the entity "for leave to present that claim." It must be presented "within a reasonable time not to exceed one year after the accrual of the cause of action," must "state the reason for the delay," and must attach the proposed claim. In counting that year, time as a minor counts, while time a person is mentally incapacitated without a guardian or conservator does not. An application is a request; leave is not assured.

Against a public entity, these Government Code periods govern, not the two-, three- or five-year lawsuit periods. Missing the claim step can bar the lawsuit regardless of its merits. Whether a particular agency or body counts as a public entity is itself a legal question. If a public entity may be involved in your fire, a conversation with our attorney can cover which deadlines may apply and what the claim step involves.

If the Family Is Rebuilding: Taxes and What the Disaster-Loss Election Does and Does Not Decide

Families rebuilding after a declared disaster often run into a federal tax rule. 26 U.S.C. § 165(i)(1) lets a taxpayer whose loss occurred in a disaster area and is "attributable to a federally declared disaster" elect to have it "taken into account for the taxable year immediately preceding the taxable year in which the disaster occurred."

In plain words, if you are weighing this rule, it is a choice about which year's tax return a disaster loss appears on. It is a tax election, not a claim deadline. It does not extend, pause or replace the lawsuit periods, the insurance suit period or the Government Code claim periods on this page, and making or skipping it has no effect on those clocks. The stake for a family is a mistaken assumption: time spent on a tax decision does not hold any claim open. Whether to make the election is a tax question to raise with a tax professional, separate from the questions about claim deadlines.

A Summary of the Deadlines: Claim Type, Period, and When the Clock Starts

The table below gathers the rules stated above. It is a reference, not a reading of any family's facts.

Against a public entity, the Government Code rows govern, not the two-, three- or five-year rows. The federal disaster-loss tax election is not a claim deadline, so it does not appear here. Because one fire can fall into several rows at once, the earliest applicable row is the one that can close first. A family can match its list of losses and possible responsible parties to these rows and bring that list to a conversation with an attorney about which dates apply.