Filed 8/28/23 Gularte v. Southern Cal. Edison Co. CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

FRANCIS B. GULARTE,

Plaintiff and Appellant,

v.

SOUTHERN CALIFORNIA 

EDISON COMPANY,

Defendant and Respondent.

 B320793

 (Los Angeles County

 Super. Ct. No. 21STCV42579)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Daniel J. Buckley, Judge. Affirmed.

Singleton Schreiber, Benjamin I. Siminou, Harini P. 

Raghupathi, and Jonna D. Lothyan for Plaintiff and Appellant.

Hueston Hennigan, John C. Hueston, Douglas J. Dixon, 

Craig A. Fligor; Belynda S. Reck, Patricia A. Cirucci, and Brian 

Cardoza for Defendant and Respondent. 

_____________________________
2

Francis B. Gularte appeals the trial court’s order 

sustaining Southern California Edison Company’s (Edison)

demurrer to his complaint, which sought relief for damages 

caused by the Thomas Fire, a massive wildfire that engulfed 

large portions of Santa Barbara and Ventura Counties. We hold 

that Gularte’s complaint was barred by the statute of limitations 

and his causes of action were not tolled under the class action

tolling rule articulated in American Pipe & Construction Co. v. 

Utah (1974) 414 U.S. 538 (American Pipe) and Jolly v. Eli Lilly & 

Co. (1988) 44 Cal.3d 1103 (Jolly). Accordingly, we affirm.

BACKGROUND

I. The Thomas Fire

The Thomas Fire began on December 4, 2017, when 

Edison’s electrical equipment allegedly ignited surrounding 

vegetation south of Thomas Aquinas College from which the fire 

gets its name.

When the Thomas Fire was finally contained on January 

12, 2018, it was the largest wildfire in California’s history. 

It burned 281,000 acres in Santa Barbara and Ventura Counties, 

resulted in numerous fatalities and injuries, destroyed more than 

1,000 structures (including 775 homes), forced over 100,000 

residents to evacuate, caused over 250,000 residents to lose 

power, and forced numerous highway and road closures that 

severely restricted access to the affected areas. 

In addition to the extensive damages caused directly by the 

flames and smoke, the Thomas Fire combined with heavy rains

resulted in devastating mudslides that killed at least 21 people 

and destroyed or damaged more than 450 homes. The mudslides 

ruptured gas mains, caused power outages, and compromised the 

affected area’s water supply. The mudslides also forced the 
3

closure of U.S. Highway 101 and other roads, making travel to 

some areas impossible. 

II. Class action complaint

On January 24, 2018, less than two weeks after the

Thomas Fire was contained, a group of individuals and entities

filed a class action complaint against Edison in the Los Angeles 

Superior Court, alleging they had suffered property, economic, 

and evacuation-related damages because of the fire and

subsequent mudslides. (Frost v. Southern California Edison Co. 

(Super. Ct. L.A. County, 2018, No. BC691146 (Frost).) The Frost

complaint alleged causes of action for negligence, inverse 

condemnation, public nuisance, private nuisance, premises 

liability, trespass, violation of Public Utilities Code section 2106, 

violation of Health and Safety Code section 13007, and negligent 

interference with prospective economic advantage. 

The Frost complaint’s class definition included “all 

individuals residing in California who, as of December 4, 2017 

and/or January 9, 2018, lived in, worked in, were offered and 

accepted work in, or owned or leased real or personal property” in 

Santa Barbara and Ventura Counties. It also included all 

California entities that owned, operated, or leased a physical 

facility; provided services while physically present; or owned or 

leased real property in Santa Barbara and Ventura Counties. 

In April 2018, Frost was coordinated with other Thomas 

Fire cases into Judicial Council Coordination Proceeding 

No. 4965. In July 2018, the trial court allowed individual 

Thomas Fire suits to proceed but indefinitely stayed all putative 

class claims, including Frost. To date, the Frost class has not 

been certified.
4

III. Gularte’s complaint

On November 18, 2021, Gularte filed an individual action 

against Edison, alleging causes of action for inverse

condemnation, negligence, trespass, nuisance, violation of Public

Utilities Code section 2106, and violation of Health and Safety

Code section 13007. 

The complaint contains few individual details regarding 

Gularte or the damages he suffered. It identified Gularte as “an 

individual who was, at all times relevant to this pleading, 

homeowner, business owners [sic], resident, occupant, and/or had 

property located in Ventura and Santa Barbara Counties.” The

complaint alleged that the Thomas Fire caused Gularte to suffer 

substantial harm, including “damage to and/or . . . out-of-pocket 

expenses directly and proximately incurred as a result of the fire; 

alternative living expenses; evacuation expenses; personal 

injuries; wrongful death; medical bills; lost wages; loss of earning 

capacity; loss of business income and/or goodwill; and various 

types of emotional distress, annoyance, inconvenience, 

disturbance, mental anguish, and loss of quiet enjoyment of 

property.” 

To address the applicable three-year statute of limitations, 

Gularte alleged his delayed discovery of Edison’s wrongdoing and

that his causes of action were subject to class action tolling. With 

regard to class action tolling, Gularte alleged his claims were

“identical” and relied on the ”same facts” as Frost, and that “he 

would fit into a subclass” under the proposed class definition. 

Although Gularte did not identify Frost in his complaint, Edison 

deduced, and Gularte later confirmed, he was referring to that 

case.
5

IV. Edison’s demurrer

Edison demurred to Gularte’s complaint on the grounds 

that his causes of action were time-barred under Code of Civil 

Procedure section 338, subdivisions (a), (b), and (j)’s three-year 

statute of limitations, including the additional 178 days from 

April 6, 2020 to October 1, 2020, that was afforded to all 

California plaintiffs’ civil causes of action due to the COVID-19 

pandemic. (See Cal. Rules of Court, Emergency rule 9(a)

[“Notwithstanding any other law, the statutes of limitations . . . 

for civil causes of action that exceed 180 days are tolled from 

April 6, 2020, until October 1, 2020”].) Because Gularte alleged 

that his property was damaged by the Thomas Fire on December 

4, 2017, the statute of limitations for each of his causes of action 

ran on May 31, 2021. Gularte filed his complaint 171 days later 

on November 18, 2021, and did not dispute that the applicable 

statutes of limitations had lapsed. However, he argued that his 

claims should be tolled by the delayed discovery rule and tolled 

by Frost under American Pipe and Jolly. 

The trial court sustained Edison’s demurrer, finding that 

the complaint failed to allege facts supporting delayed discovery 

or that Frost tolled the statute of limitations under American 

Pipe and Jolly. Because Gularte did not provide additional 

allegations to cure his defective complaint, the trial court denied 

leave to amend. 

Gularte appealed.

DISCUSSION

I. Standard of review

We review an order sustaining a demurrer de novo.

(McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 

415.) We exercise our independent judgment to determine 
6

whether the complaint states a cause of action as a matter of law. 

(Villafana v. County of San Diego (2020) 57 Cal.App.5th 1012, 

1016.) We accept as true all material facts properly pleaded, but 

not contentions, deductions or conclusions of fact or law. (Blank 

v. Kirwan (1985) 39 Cal.3d 311, 318.) We will affirm the 

judgment of dismissal if the demurrer was proper on any grounds 

even if the trial court sustained the demurrer on a different basis. 

(Carman v. Alvord (1982) 31 Cal.3d 318, 324.) The plaintiff bears 

the burden on appeal to show the trial court erred by sustaining 

the demurrer. (Rakestraw v. California Physicians’ Service

(2020) 81 Cal.App.4th 39, 42–43.) 

“A statute of limitations defense may be asserted by 

general demurrer if the complaint shows on its face that the 

statute bars the action.” (SLPR, L.L.C. v. San Diego Unified Port 

Dist. (2020) 49 Cal.App.5th 284, 316.) “ ‘In order for the bar of 

the statute of limitations to be raised by demurrer, the defect 

must clearly and affirmatively appear on the face of the 

complaint; it is not enough that the complaint shows that the 

action may be barred.’ ” (Geneva Towers Ltd. Partnership v. City 

of San Francisco (2003) 29 Cal.4th 769, 781.) 

We review the trial court’s denial of leave to amend for 

abuse of discretion. (Traders Sports v. City of San Leandro 

(2001) 93 Cal.App.4th 37, 43.) The plaintiff must show there is a 

reasonable possibility that the defective complaint can be cured 

by amendment. (Friedland v. City of Long Beach (1998) 

62 Cal.App.4th 835, 841–842.) 

II. Class action tolling under American Pipe and Jolly

Gularte’s sole contention on appeal is that Frost tolled the 

statute of limitations for his individual claims under the class 

action tolling rule established by the United States Supreme 
7

Court in American Pipe, supra, 414 U.S. 538, and adopted by our 

Supreme Court in Jolly, supra, 44 Cal.3d 1103. Gularte 

abandoned his delayed discovery argument on appeal. 

In American Pipe, the United States Supreme Court held

where class certification has been denied for a failure to 

demonstrate that the class is so numerous that joinder of all class 

members is impracticable, the filing of the class action tolls the 

statute of limitations for members of the putative class, who 

make timely motions to intervene. (American Pipe, supra, 

414 U.S. at pp. 552–553.) The American Pipe court believed its 

holding would preserve the efficiency and economy of class action 

litigation, by circumventing the need for potential class members 

to file preventative motions to intervene prior to class 

certification in the event certification was denied for

unforeseeable and “subtle” factors. (Id. at pp. 553–554.) 

American Pipe, supra, 414 U.S. at page 554, explained that 

its holding was consistent with statutes of limitations, which are

“ ‘designed to promote justice by preventing surprises through the 

revival of claims that have been allowed to slumber until 

evidence has been lost, memories have faded, and witnesses have 

disappeared.’ ” This is because when plaintiffs commence a class 

action, defendants may be put on notice “not only of the 

substantive claims being brought against them, but also of the 

number and generic identities of the potential plaintiffs who may

participate in the judgment.” (Id. at pp. 554–555.) Thus, the 

filing of a class action may provide defendants with the essential 

information necessary to determine both the subject matter and 

size of the prospective litigation. (Id. at p. 555.) 

In interpreting American Pipe, our Supreme Court in Jolly

directed lower courts to consider two primary policy 
8

considerations before applying American Pipe’s class action 

tolling rule: (1) the protection of the class action device, and 

(2) the effectuation of the purpose of the statute of limitations. 

(Jolly, supra, 44 Cal.3d at p. 1119.) 

On the first consideration, Jolly explained that courts must 

determine whether tolling would serve to further the efficiency 

and economy of class action litigation. (Jolly, supra, 44 Cal.3d at 

p. 1122.) Courts must ask whether failure to apply class action

tolling would induce individuals to file protective motions to 

intervene in the event class certification was denied for “subtle” 

factors unforeseeable by potential class members. (Id. at 

p. 1121.) This will depend on whether the claims asserted on 

behalf of the putative class were sufficiently similar to the absent 

class members’ individual claims, such that the absent class 

members would have reasonably relied on the class action and 

postponed filing individual lawsuits. (Id. at p. 1125.) 

Regarding the second consideration, Jolly emphasized the 

importance of avoiding a particular abuse that would arise if 

plaintiffs were “ ‘free to raise different or peripheral claims 

following denial of class status,’ ” and admonished trial courts to 

“ ‘take care to ensure that the suit raises claims that “concern the 

same evidence, memories, and witnesses as the subject matter of 

the original class suit,” so that “the defendant will not be 

prejudiced.” ’ ” (Jolly, supra, 44 Cal.3d at p. 1124.) Jolly 

instructed lower courts to “exercise discretion in applying the 

American Pipe rule in order to ‘prevent the type of abuse 

mentioned above and [to] preserve a defendant whole against 

prejudice arising from claims for which he has received no prior 

notice.’ ” (Id. at p. 1125.)
9

Ultimately, Jolly held that both American Pipe policy 

considerations are satisfied when: “ ‘a named plaintiff who is 

found to be representative of a class commences a suit and 

thereby notifies the defendants not only of the substantive claims 

being brought against them, but also of the number and generic 

identities of the potential plaintiffs who may participate in the 

judgment.’ ” (Jolly, supra, 44 Cal.3d at p. 1121.) 

Applying these policy considerations to the facts before it, 

the Jolly court found class action tolling did not apply. (Jolly, 

supra, 44 Cal.3d at p. 1122.) The individual plaintiff in Jolly

sued various pharmaceutical companies for personal injuries 

caused by a drug that her mother ingested during pregnancy. 

(Id. at p. 1120.) Because her claims were barred by the 

applicable statute of limitations, the plaintiff argued a prior class 

action involving the same drug tolled her individual causes of 

action under American Pipe. (Jolly, at p. 1120.) 

In declining to apply class action tolling, the Jolly court 

found the prior class action neither put defendants on notice of 

the substance and nature of the individual plaintiff’s claims, nor 

served to further the economy and efficiency of class action

litigation. (Jolly, supra, 44 Cal.3d at p. 1122.) Jolly noted that 

the class action procedure had “consistently been rejected” in 

other cases that involved the same drug at issue. (Id. at p. 1123.) 

The court also found that the same reasons that rendered masstort claims generally unsuitable for class certification supported 

its decision not to apply class action tolling under American Pipe, 

explaining the major elements in tort actions for personal injury

will vary widely from claim to claim. (Ibid.) Thus, the filing of 

the class action “could not have apprised defendants of plaintiff’s 

substantive claims.” (Ibid.) 
10

Although Jolly stopped short of categorically barring class 

action tolling in mass-tort actions, it warned that because those 

cases “can rarely meet the community of interest requirement in 

that each member’s right to recover depends on facts peculiar to 

each particular case, such claims may be presumptively incapable 

of apprising defendants of ‘the substantive claims being brought 

against them,’ ” which was a prerequisite to apply class action 

tolling under American Pipe. (Jolly, supra, 44 Cal.3d at p. 1125.) 

III. Gularte’s claims were not tolled by Frost

We conclude class action tolling under American Pipe and 

Jolly does not apply here, therefore, Gularte’s complaint is timebarred. 

Jolly did not create a categorical bar to class action tolling 

in mass-tort actions, however, we find that Frost, which has been 

coordinated with thousands of other individual lawsuits related 

to the Thomas Fire, is “presumptively” incapable of apprising 

Edison of the substantive claims being brought against it, 

including Gularte’s. (Jolly, supra, 44 Cal.3d at p. 1125.) Frost’s 

class definition is so broad, encompassing every individual and 

entity in California with some connection to the massive area 

affected by the Thomas Fire, who suffered any kind of property, 

economic, or evacuation-related damages, that it could never

sufficiently notify Edison of “the number and generic identities of 

the potential plaintiffs who may participate in the judgment.” 

(Id. at p. 1121.) As such, Frost failed to provide Edison with the 

prerequisite notice of Gularte’s claims, which Jolly held was 

critical to apply class action tolling under American Pipe. 

Both of Jolly’s policy considerations also weigh against 

applying class action tolling here. 
11

On the first policy consideration—whether applying class 

action tolling would protect the class action device—we find it 

would not. In assessing this first consideration, we are to 

determine whether declining to apply class action tolling would 

induce individuals to file protective motions in the event class 

certification was denied for “subtle” factors unforeseeable by 

potential class members. (Jolly, supra, 44 Cal.3d at p. 1121.) We 

must also determine whether the claims asserted on behalf of the 

class are sufficiently like those of absent class members such that 

they would postpone filing individual lawsuits. (See id. at 

p. 1125.) 

Neither of those underlying factors support the conclusion 

that applying class action tolling to Gularte’s complaint would 

protect the class action device. 

First, declining to apply class action tolling would not 

induce potential class members to file protective motions to 

intervene in the event class certification was denied for “subtle” 

factors. (See Jolly, supra, 44 Cal.3d at p. 1121.) Plaintiff has 

cited no cases (and we are aware of none) where class treatment 

was appropriate after a mass accident that resulted in widely 

varied property damage, like the wildfire case at bar. (See 

Hildebrandt v. Staples the Office Superstore, LLC (2020) 

58 Cal.App.5th 128, 144 (Hildebrandt) [finding failure to apply 

class action tolling to an individual’s employment 

misclassification claim would induce potential class members to 

file protective motions to intervene because misclassification 

claims were often suitable for class treatment].) Indeed, in the 

only published wildfire case cited by the parties, the court found 

denial of class certification was foreseeable because many 

purported class members opposed class certification, arguing the 
12

class definition was flawed, individual questions predominated 

over common ones, and that individual actions were superior to 

class treatment. (Perkin v. San Diego Gas & Electric Co. (2014) 

225 Cal.App.4th 492, 508 (Perkin).) 

Second, even though Gularte and the Frost plaintiffs 

alleged some of the same causes of action, that does not 

necessarily mean the claims asserted on behalf of the Frost class 

are sufficiently similar such that Gularte could reasonably 

postpone filing his individual suit. Mass-tort actions are 

generally not appropriate for class certification because proof of 

major elements will vary widely from claim to claim. (See Jolly, 

supra, 44 Cal.3d at p. 1123.) Thus, even though the trial court 

has yet to determine whether class certification is appropriate in 

Frost, it was not reasonable for Gularte to postpone his suit. As 

Jolly expressly warned, mass-tort actions may be presumptively 

incapable of putting a defendant on notice of an individual’s 

untimely claims, and an individual plaintiff should presume that 

lack of commonality will defeat certification and preclude 

application of American Pipe. (Id. at pp. 1121, 1125.) We also 

note that the Thomas Fire cases have been coordinated into a 

single proceeding, which Jolly recognized as an alternative 

means to achieve some of the benefits of the class action device. 

(Id. at p. 1125, fn. 19.) 

As to the second policy consideration—whether applying 

class action tolling is consistent with and would effectuate the 

purpose of statutes of limitations—we conclude it would not. As 

stated previously, Frost’s class definition is so broad and the 

injuries so varied that the complaint could not sufficiently notify 

Edison of the substantive claims being brought against it or of 

the number and generic identities of the potential plaintiffs who 
13

could participate in the judgment. (Jolly, supra, 44 Cal.3d at 

p. 1121.) Indeed, the class definition includes any individual or 

entity in California that had some connection to Santa Barbara 

and Ventura Counties at the time of the Thomas Fire. Likewise, 

the categories of damages range from any type of property,

economic, or evacuation-related damages that included any lost 

income, earnings, or profits. Given the broad class definition and 

damages categories, the number of potential plaintiffs is 

exceptionally expansive. Accordingly, we find that Frost failed to 

sufficiently notify Edison of Gularte’s individual causes of action, 

and applying class action tolling would be inconsistent with the 

purpose of the statute of limitations. 

Our conclusion is consistent with case authority cited by 

both parties. 

We find Perkin, supra, 225 Cal.App.4th 492, particularly 

instructive. Like the instant case, Perkin involved individual 

plaintiffs suing a utility company for causing a massive wildfire 

that burned hundreds of thousands of acres and destroyed over 

1,000 homes. (Id. at pp. 494–495.) The individual plaintiffs filed 

their complaint after the statute of limitations had run and 

argued that the filing of a prior class action tolled their claims 

under American Pipe. (Perkin, at p. 498.) The class definitions

consisted of all persons and entities in California whose property 

had been destroyed or damaged by various wildfires. (Ibid.) 

Perkin found this broad class definition alone was sufficient to 

deny the application of American Pipe. (Perkin, at p. 508.) As 

mentioned above, Perkin also found that applying class action 

tolling would not protect the class action because the trial court 

did not deny class certification for “ ‘subtle factors’ ” 

unforeseeable by class members, as many purported class 
14

members argued against class certification with over 1,400 

plaintiffs filing individual suits against the utility company for 

damages caused by the wildfire. (Ibid.) We find no reason to 

depart from Perkin’s holding in the wildfire case at bar. 

Gularte attempts to distinguish Perkin, arguing that the 

class definition here is narrower because it only encompasses 

those individual plaintiffs whose property was located within 

Santa Barbara and Ventura Counties. However, like Perkin, the 

class here includes putative class members across the state. 

Moreover, the Frost class is potentially broader than the classes 

in Perkin because it includes property damage, as well as

economic and evacuation damages. 

Hildebrandt, supra, 58 Cal.App.5th 128, is also instructive.

In Hildebrandt, the court applied class action tolling under 

American Pipe and Jolly to an employee’s individual 

misclassification and wage and hour causes of action. 

(Hildebrandt, at p. 132.) Hildebrandt held that prior class 

actions tolled the individual plaintiff’s causes of action because 

the individual and class action complaints both involved the 

employer’s misclassification of the same general manager 

position. (Id. at p. 142.) As such, even though the class was 

statewide, the prior class actions sufficiently put the employer on 

notice of the number and generic identities of the potential 

plaintiffs. (Ibid.) Hildebrandt, at page 141, noted that the

employee’s misclassification claims were significantly narrower 

than Perkin’s wildfire claims, where “potential plaintiffs were not 

limited to a set number from a specific, clearly defined area,” and 

could have included anyone “in California claiming that their 

properties were damaged in some way” by the wildfire. Further, 

Hildebrandt found that applying class action tolling would 
15

protect the class action device because it was reasonable for the 

individual plaintiff to rely on the class action complaint to

postpone filing his own lawsuit because misclassification cases 

were not presumptively unsuitable for class treatment. (Id. at 

p. 144.)

Here, unlike Hildebrandt, it was not reasonable for Gularte 

to rely on Frost to delay filing his individual lawsuit. Gularte has 

not pointed to a single class action brought after a catastrophic 

event like the Thomas Fire, and we are aware of none, where 

class certification was appropriate. Indeed, in the only wildfire 

case cited by the parties, class certification was denied. (See 

Perkin, supra, 225 Cal.App.4th at p. 496.) Further, unlike 

Hildebrandt, where the employer admitted it could reasonably 

identify every potential class member upon the commencement of 

the class action, there was no way Edison could know the number 

and generic identities of the potential plaintiffs based on the allencompassing class definition and damages categories in Frost. 

And, although knowledge of the exact identities of potential 

plaintiffs is unnecessary to apply class action tolling, Frost could 

not even notify Edison of the approximate number or generic 

identities of potential plaintiffs required under American Pipe 

and Jolly. 

Gularte cites to Becker v. McMillin Construction Co. (1991) 

226 Cal.App.3d 1493 (Becker) and San Francisco Unified School 

District v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318 (San 

Francisco), to argue that class action tolling should apply here. 

However, both cases are distinguishable.

In Becker, supra, 226 Cal.App.3d 1493, a property 

developer was sued for construction defects within a 620-home 

development. (Id. at p. 1497.) The Becker court found the filing 
16

of a prior class action regarding the same construction defects 

against the developer provided sufficient notice that a certain 

number of homeowners within the development were 

experiencing construction defects. (Id. at p. 1501.) Therefore, 

Becker held the class action tolled the causes of action of the 

individual plaintiffs who sued the developer after the statute of 

limitations had ran. (Ibid.) Given that the construction defects 

were limited to a single development, Becker found that the 

number of potential claimants was ascertainable to a significant 

degree, and the generic identities of potential plaintiffs were

“obvious.” (Ibid.) Notably, Becker warned against a “too-liberal 

interpretation of the rule set out in American Pipe,” and that the 

class action at issue was “unusual” in that the potential plaintiffs 

were finite and could be located through their residence in the 

development. (Id. at p. 1502.) 

In San Francisco, supra, 37 Cal.App.4th 1318, a

construction company was sued for using asbestos-containing 

products in its construction of school buildings. (Id. at p. 1323.)

Plaintiff opted out of a class action and filed an individual 

lawsuit after the limitations period had expired. (Id. at pp. 1323–

1324, 1336.) Like Becker, the San Francisco court found that 

class action tolling applied because the construction company was 

fairly on notice of the plaintiff’s claims as the prior class action

raised the same claims, and the class members could be identified 

through public contracts. (Id. at p. 1339.) 

Gularte argues this case is like Becker and San Francisco 

because Frost notified Edison that certain property owners in 

Santa Barbara and Ventura Counties had experienced property 

damage. Again, Gularte mischaracterizes and narrows the scope 

of the Frost complaint. As pleaded, the Frost complaint’s class 
17

definition is virtually unlimited to any individual or entity in 

California that suffered any property, economic, or evacuationrelated damages directly or indirectly caused by the Thomas Fire, 

which burned hundreds of thousands of acres in two counties,

and had a devastating rippling effect that went far beyond the 

geographic area directly affected by the fire. Unlike Becker and 

San Francisco, there is no means for Edison to reasonably 

identify all or even approximate the number of potential 

plaintiffs. Becker and San Francisco are not analogous and do 

not support the application of class action tolling here.

For the above reasons, we conclude that Gularte’s causes of 

action were not tolled by Frost and were thus time-barred.

IV. The trial court did not abuse its discretion in 

denying leave to amend

Finally, we find the trial court did not abuse its discretion 

in denying Gularte leave to amend. We note that Gularte 

provided some additional details in his appellate briefs as to the 

damages he suffered from the Thomas Fire, stating his ranch in 

Ventura County was damaged and needed to be evacuated.

However, even if Gularte added these allegations to his 

complaint, they would be insufficient to warrant application of 

class action tolling. This is because it is not necessarily Gularte’s 

complaint that is deficient, but the Frost complaint’s failure to 

put Edison on notice of Gularte’s individual causes of action. (See 

Jolly, supra, 44. Cal.3d at p. 1124 [finding deficiency in class 

action complaint alone was sufficient to deny plaintiff relief 

under American Pipe].) Simply put, there is no reasonable 

probability that Gularte could cure this fatal defect with 

amended allegations. (Friedland v. City of Long Beach, supra,
18

62 Cal.App.4th at pp. 841–842.) Therefore, we find no abuse of 

discretion. 

DISPOSITION

The judgment is affirmed. Respondent is awarded costs on 

appeal.

VIRAMONTES, J.

WE CONCUR:

STRATTON, P. J.

GILBERT, J.

 Presiding Justice of the Court of Appeal, Second Appellate 

District, Division Six, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.