1

Filed 10/25/22 Hogrefe v. County of Trinity CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Trinity)

----

RANDOLPH HOGREFE,

Plaintiff and Appellant,

v.

COUNTY OF TRINITY et al.,

Defendants and Respondents.

C093344

(Super. Ct. No. 20CV085)

As a young child, plaintiff Randolph Hogrefe testified as an eyewitness to the 

murder of Gary “Hop” Summar, leading to the conviction of murder suspect Robert 

Fenenbock. (People v. Fenenbock (1996) 46 Cal.App.4th 1688 (Fenenbock).) Nearly 30 

years later, Hogrefe submitted a tort claim under the Government Claims Act (Gov. 

Code, § 810, et seq. (Act); further undesignated statutory references are to the 

Government Code) to respondent County of Trinity (County), alleging that county law 

enforcement and other county employees implanted and coached his testimony in the 
2

1990s, causing him to testify falsely about Summar’s murder, which he originally 

maintained he had not witnessed. The County denied the claim as untimely, and then 

later returned his application to file a late claim without taking any action after finding 

the application was also untimely. Thereafter, Hogrefe petitioned the superior court 

under section 946.6 for relief from the claim filing requirement. 

He now appeals from the trial court’s order denying his section 946.6 petition.1 

Hogrefe contends that because he only recently discovered that the implanted memories 

and his resultant testimony were false, that his claim was timely filed under the delayed 

discovery rule, and that his petition for relief from late claim requirements, which he filed 

out of an abundance of caution after the County denied his claim, was not actually 

necessary. He therefore requests that we reverse the trial court’s order denying the 

petition, and direct the trial court to dismiss the petition for relief as moot. 

Alternatively, Hogrefe argues that even if relief from the claim requirements was 

required, the trial court exceeded its jurisdiction and abused its discretion in deciding 

when his claim accrued and the applicability of the delayed discovery rule, which were 

disputed issues of fact more properly left for a jury’s determination. Finally, he seeks 

confirmation from this court that he is still free to pursue his federal complaint against 

1

In addition to respondent County of Trinity, Hogrefe’s petition named Trinity County 

Sheriff’s Office, Sergeant Dan Kartchner and Detective Eric Palmer, in their individual 

and official capacities as detectives for the Trinity County Sheriff’s Office, Trinity 

County Department of Health & Human Services, Trinity County Child Protective 

Services, and Donna Gordon, in her individual and official capacity with Trinity County 

Child Protective Services. These parties are sometimes collectively referred to as 

respondents.
3

respondents that pleads compliance with the claim’s statute notwithstanding the trial 

court’s adverse accrual determination below.2 

We conclude that the trial court had authority to determine the accrual date of 

Hogrefe’s claim when ruling on the petition for relief because the accrual date was a 

subsidiary finding under section 946.6. in determining whether Hogrefe was entitled to 

relief from the claim filing requirements. We further conclude that even though the 

parties presented conflicting evidence regarding when his claim accrued, substantial 

evidence supports the trial court’s finding that at the latest Hogrefe’s claim accrued in 

2006, and, thus, that his 2019 application for leave to file a late claim was untimely. We 

decline the parties’ request to provide an opinion on the preclusive effect, if any, of the 

trial court’s findings regarding accrual, the applicability of the delayed discovery rule, 

and the timeliness of Hogrefe’s claim in Hogrefe’s pending federal action in which he 

alleges that he timely filed his claim for relief with the County. That determination is 

more properly decided by the federal court in the first instance.

We shall affirm the trial court’s order denying Hogrefe’s section 946.6 petition for 

relief from the claim presentation requirements.3

2

In May 2020, Hogrefe filed a complaint against respondents and others in the United 

States District Court for the Eastern District of California entitled Hogrefe v. County of 

Trinity, et al. (Case No. 2:20-CV-01028-MCE-DMC). 

3 Hogrefe requests that we take judicial notice of the transcripts of the Solano County 

Superior Court’s rulings on Fenenbock’s motion to dismiss for outrageous criminal 

conduct and his motion for a finding of actual innocence, as well as his federal complaint 

against respondents. Respondents oppose the motion. “Reviewing courts generally do 

not take judicial notice of evidence not presented to the trial court. Rather, normally 

‘when reviewing the correctness of a trial court’s judgment, an appellate court will 

consider only matters which were part of the record at the time the judgment was 

entered.’ ” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 

3.) No exceptional circumstances exist that would justify deviating from that rule by 

taking judicial notice of the requested materials. The request is denied.
4

FACTUAL AND PROCEDURAL BACKGROUND

A. The Murder of Hop Summar and Hogrefe’s Trial Testimony

In October 1991, Hop Summar was gruesomely murdered in Hawkins Bar, a small 

community in Trinity County, by a group of people who wrongly believed that he had 

molested the five-year-old daughter of Barbara Adcock. (Fenenbock, supra, 

46 Cal.App.4th at pp. 1692-1698.) Summar had been bludgeoned and stabbed over 70 

times; he had numerous facial factures, severe trauma to his genitals, his left ear had been 

cut off while he was still alive, his left eye had been cut out, and he was stabbed 18 times 

in the skull and 13 times in the chest. (Id. at p. 1698.) 

At the time of Summar’s killing, Adcock lived with her boyfriend Bernard “Bird” 

MacCarlie and her three children, including Hogrefe, who was nine years old. 

(Fenenbock, supra, 46 Cal.App.4th at pp. 1692-1693, 1696.) Summar sometimes stayed 

in the trailer that MacCarlie shared with Adcock and her children. (Id. at pp. 1692-1693, 

1696.) 

Immediately after Summar was murdered, Hogrefe was removed from his 

mother’s home, and he was placed into the custody of respondent Trinity County Child 

Protective Services (CPS). Respondent Donna Gordon, a CPS social worker, was 

appointed his guardian ad litem. 

During the murder investigation, Hogrefe was interviewed numerous times by law 

enforcement, including by respondents Sergeant Dan Kartchner and Detective Eric 

Palmer of the Trinity County Sheriff’s Office, often without a parent or guardian present. 

Although he repeatedly told police, social workers, and therapists4that he had not 

witnessed Summar’s murder, they kept telling him that he was present, that he was lying, 

4 Neither of the therapists nor their employer, Northern California Youth and Family 

Services, were governmental employees or entities. 
5

that he had witnessed the murder, and that numerous people were going to testify that he 

was present and witnessed the murder. 

Nine people were eventually charged with murdering Summar, including Robert 

Fenenbock.5 (Fenenbock, supra, 46 Cal.App.4th at p. 1692.) Hogrefe testified as a 

witness in Fenenbock’s trial. (Id. at p. 1696.) At some point on the day Summar died, 

Hogrefe slept on a mattress in the back of his mother’s white Ranchero. (Id. at pp. 1695-

1696.) He testified at trial that after stopping at the top of a hill near a campground 

where a group of local residents and drifters, including Hogrefe’s mother and MacCarlie 

often hung out, the Ranchero drove to a place where the men in the Ranchero, whom 

Hogrefe identified as MacCarlie, Fenenbock, Leafe Dodds, and Redbeard Bob Bond, 

started stabbing Summar, who was also in the car. (Id. at pp. 1692, 1695-1696.) 

Afterwards, the men dragged Summar to another spot. (Id. at p. 1696.) Hogrefe further 

testified that after the killing, MacCarlie drove to another location and dropped off 

Redbeard Bob and Fenenbock. (Id. at p. 1698, fn. 4.) 

The jury found Fenenbock guilty of first degree murder in 1994, and he was 

sentenced to state prison for 25 years to life plus one year for use of a deadly weapon. 

(Fenenbock, supra, 46 Cal.App.4th at p. 1692.) His conviction and sentence were 

affirmed by Division 1 of the First District Court of Appeal in 1996. (Id. at p. 1709.) 

One of the issues Fenenbock raised on appeal was whether Hogrefe had been subjected to 

such suggestive and coercive interview techniques by his therapists that it could no 

longer be said that he was testifying from his own personal recollection and knowledge 

and that his testimony should have been excluded. The court found Fenenbock had 

forfeited the issue by failing to challenge the admissibility of Hogrefe’s testimony during 

trial. 

5 Eight persons were ultimately tried for Summar’s murder in three separate trials, 

including Hogrefe’s mother. 
6

B. Habeas Corpus Proceedings

In the decades following his conviction, Fenenbock and several codefendants 

petitioned numerous times for writs of habeas corpus, again raising the issue that 

Hogrefe’s testimony had been improperly influenced and coerced. As part of the habeas 

proceedings, they also sought to discover, among other things, all CPS and therapy 

records regarding Hogrefe from 1991 to the present. 

In August 2017, Fenenbock filed a petition for writ of habeas corpus in Solano 

County Superior Court seeking to overturn his murder conviction based on testimony 

from MacCarlie in his own trial, which took place after Fenenbock’s trial, that MacCarlie 

alone had stabbed Summar and that Fenenbock was not involved. In August 2019, the 

Solano County court found that Fenenbock was entitled to relief, vacated his judgment 

and sentence, and granted him a new trial. 

Fenenbock subsequently moved to dismiss the state criminal action against him 

based on outrageous government conduct. Hogrefe testified at a hearing on Fenenbock’s 

motion to dismiss in January 2020. During his testimony, Hogrefe stated that as a child 

he believed he “had to testify to the story that was in front of [him],” and that he had been 

told that if he did not testify as such that the defendants were going to get out and they 

were going to kill him. 

C. The Innocence Project

On March 13, 2019, prior to Fenenbock being granted a new trial, a representative 

of the Northern California Innocence Project contacted Hogrefe and informed him that 

the Innocence Project was assisting Fenenbock in attempting to overturn his murder 

conviction based in part on the theory that respondents had manipulated Hogrefe as a 

child and coerced false testimony from him regarding witnessing Summar’s murder. In 

August 2019, Hogrefe reviewed copies of his original statements to law enforcement and 

others, including several transcripts of taped interviews in which he repeatedly denied 
7

seeing Summar murdered, which the Innocence Project representative had provided to 

him. 

D. Hogrefe’s Government Claim against Respondents

On September 12, 2019, Hogrefe filed a government claim for damages pursuant 

to section 911.2 with the Trinity County Board of Supervisors Office, alleging that he had 

sustained psychological torture, and severe mental and emotional pain and suffering as a 

result of respondents’ fraudulent actions in manipulating and coercing him into testifying 

falsely against Fenenbock and others charged with Summar’s murder. He alleged that he 

had only recently discovered respondents’ fraudulent acts after being contacted by the 

Innocence Project on March 13, 2019. 

In October 2019, the County denied Hogrefe’s claim, finding it untimely. To the 

extent Hogrefe intended his claim to be construed as an application to present a late 

claim, the County returned it to him because it did not substantially comply with the legal 

requirements for presenting a late claim. 

The following month, in November 2019, Hogrefe filed an application for leave to 

present a late claim pursuant to section 911.4. He alleged that his personal injury cause 

of action accrued on March 13, 2019, when he first discovered the fraud perpetrated by 

respondents, and that he had timely presented his claim to the County in September 2019 

under the delayed discovery rule. Hogrefe made clear that he did not intend for his initial 

claim to be an application to present a late claim since he believed his claim was timely 

made after discovering the full extent of respondents’ actions during the Summar murder 

investigation. To the extent he failed to present his claim within the six months specified 

in section 911.2, subdivision (a), Hogrefe maintained that he did so based on mistake, 

inadvertence, surprise and excusable neglect in not discovering respondents’ fraud until 

March 13, 2019. 
8

In January 2020, the County returned Hogrefe’s application to present a late claim 

without having taken any action on it after finding that Hogrefe had failed to timely file 

the application. According to the County, the application was not presented within a 

reasonable time not to exceed one year after the date of accrual of the cause of action as 

required by section 911.4. The County notified Hogrefe that if he wished to file a court 

action on the matter, he first had to petition the court for an order relieving him from the 

claims presentation requirement in section 945.4. 

E. Hogrefe’s Federal Action

As noted above, in May 2020, Hogrefe filed a complaint against respondents and 

others in the United States District Court for the Eastern District of California entitled 

Hogrefe v. County of Trinity, et al. (Case No. 2:20-CV-01028-MCE-DMC). Hogrefe 

also concurrently filed a petition under section 946.6 for an order relieving him of the 

claim presentation requirements. 

In June 2020, the parties stipulated that Hogrefe would withdraw his petition for 

relief in the federal action and refile it in Trinity County Superior Court. The parties 

further stipulated that the proceedings in the federal action would be stayed until the 

filing, resolution and ruling by the state court on Hogrefe’s petition for late claim relief. 

F. Petition for Relief from Claim Presentation Requirements

In July 2020, Hogrefe filed a petition for an order relieving him of the government 

claim presentation requirements in Trinity County Superior Court (§ 946.6). Hogrefe and 

his counsel filed supporting declarations with attached exhibits, including excerpts from 

several of Hogrefe’s interviews as a child with County law enforcement, his CPS 

guardian ad litem, and therapists, as well as transcripts from a January 2020 hearing on 

Fenenbock’s motion to dismiss for outrageous government conduct. 
9

The petition alleged that Hogrefe’s claim against respondents for personal injury 

accrued on March 13, 2019, which was the first date he had discovered facts constituting 

fraud and giving rise to the claim, and facts sufficient to put a reasonably prudent person 

on inquiry notice of the fraud and claim. Hogrefe asserted that his claim was timely 

under the delayed discovery rule, and he expressly requested in the petition that the trial 

court “confirm[] that the claim was timely filed or alternatively, reliev[e] him from the 

claim presentation requirements [as a] result of mistake, inadvertence, surprise, or 

excusable neglect.” Hogrefe’s briefing on the petition also requested “an order that the 

claim was timely filed,” citing authority that “[t]he issue of whether a claim was timely 

filed may be decided in a claim-relief proceeding.” 

In his supporting declaration, Hogrefe declared that he was taken into CPS 

custody shortly after the murder, and that over the next several months he was 

interviewed repeatedly by respondents without a parent or guardian present. He was 

rewarded when he repeated the story respondents fed him about witnessing Summar’s 

killing, and he was called a liar whenever he said that he had not witnessed the murder. 

Sergeant Kartchner took him to the murder scene and showed him Summar’s blood on 

the ground and also a picture of MacCarlie’s bloody knife. Shortly after visiting the 

crime scene, Hogrefe complained to his father and stepmother during an unsupervised 

visit about the police interview, and afterwards he was never allowed to see his father and 

stepmother again unsupervised. By the time of trial, he was so confused and upset that he 

unwittingly abandoned the truth and accepted the false version of events as reality. He 

always believed that the reason he could not remember the murder was because he had 

suppressed the memory, although he tried to avoid thinking about this time period at all. 

He once again averred that he did not learn of respondents fraud until contacted by the 

Innocence Project in March 2019. 

Respondents opposed the petition, arguing Hogrefe’s claim was untimely as the 

events occurred nearly 30 years ago in 1991; that because Hogrefe was aware of the facts 
10

underlying his claim in 1991, the delayed discovery rule did not apply; that numerous 

publicly available appellate documents had been filed since the 1990s asserting that 

Hogrefe’s testimony had been manipulated and coerced; and that in 2006, Sergeant 

Kartchner went to Hogrefe’s home to advise him of the pending habeas proceedings, 

including the contention that he had been coerced or manipulated as a child into testifying 

falsely, but that he did nothing in response to the information. Respondents requested 

that the trial court take judicial notice of thousands of pages of legal pleadings and 

transcripts regarding Fenenbock’s and his codefendants’ attempts over the prior two 

decadesto overturn their convictions on appeal and through habeas corpus proceedings. 

In support of their opposition, respondents also filed a declaration from Sergeant 

Kartchner. Kartchner declared that he had investigated Summar’s murder, and had 

attended all three trials of those charged with his murder. According to Kartchner, in 

early 2006 he was contacted by Glenn Pruden, the deputy attorney general assigned to 

defend several of the petitions for habeas corpus filed in federal court, including 

Fenenbock’s, which alleged that Hogrefe’s trial testimony had been coerced. Pruden 

requested that Kartchner contact Hogrefe to discuss the claims being made in the federal 

habeas actions. Kartchner located Hogrefe in Shasta County, and around mid-May 2006, 

went to his home and personally met with Hogrefe. At that meeting, Kartchner claimed 

that he had informed Hogrefe about the petitions for habeas corpus and the codefendants’ 

claims that Hogrefe had been coerced into testifying falsely during the Summar murder 

trials. Kartchner informed Hogrefe that he might be contacted by counsel for the 

codefendants concerning those claims, and that he might have to testify in federal court 

on the matter. According to Kartchner, Hogrefe said that he had put the murder trials out 

of his mind and that he did not want anything to do with it anymore. Hogrefe also told 

Kartchner that years prior to their 2006 meeting, while he was in school, Hogrefe had 

been contacted by an investigator to discuss the murder, he did not want to speak with the 

investigator and his football coach stepped in to assist him in ending the conversation. 
11

Respondents submitted a declaration from Glenn Pruden stating that in March 

2006, he contacted Kartchner to apprise him of the federal habeas proceedings and to 

request that he contact Hogrefe to let him know about the claims being made and that he 

might have to testify in federal court if an evidentiary hearing was granted. In May 2006, 

Pruden spoke with Kartchner, who informed him that he had finally met with Hogrefe 

after several unsuccessful attempts, and that he had explained the federal habeas 

proceedings and the claims alleging that Hogrefe had been coerced into testifying falsely 

during the murder trials. Kartchner told Pruden that Hogrefe had said he had put the 

murder trials behind him, and that he appeared reluctant to get involved in the federal 

proceedings. Kartchner also relayed to Pruden that Hogrefe had said that an investigator 

had attempted to contact him at school years earlier, but that his football coach intervened 

and prevented him from speaking with the unidentified man, whom Pruden and 

Kartchner assumed must have been a defense investigator. 

In reply, Hogrefe argued that as a nine-year-old child in foster care respondents 

manipulated and coerced him into believing falsehoods concerning Summar’s murder, 

and that he always believed his inability to recall the events surrounding the murder was 

a result of repressed memories. It was not until March 2019 that he learned that the 

reason he did not remember Summar’s murder was because he had not actually witnessed 

it, and that it was only then that he finally appreciated that his false memories and beliefs 

were attributable to respondents’ wrongful conduct. 

Hogrefe submitted a second declaration denying that he had any notice or 

knowledge of the appeals and habeas petitions that the defendants had filed over the 

years. He also denied that Kartchner, or any other investigator, had ever shown up at his 

home in 2006 to inform him that Fenenbock and his codefendants were challenging their 

convictions on the basis that Hogrefe’s testimony as a child had been coerced and 

manipulated. Had he met with Kartchner in 2006, he would have told his wife about the 

meeting immediately. Hogrefe’s wife submitted a declaration stating that Hogrefe never 
12

mentioned meeting with Kartchner in 2006, and that he would have done so had such a 

meeting actually occurred. 

The court considered Hogrefe’s petition at a hearing on August 28, 2020. No 

testimony was taken during the hearing, but the court did grant respondents’ request for 

judicial notice filed in support of its opposition. 

At the hearing, Hogrefe argued that none of respondents’ evidence conclusively 

established that he had any notice of wrongful conduct prior to March 2019. In his view, 

he had presented sufficient evidence to raise a question as to the applicability of the 

delayed discovery rule, which he argued was generally a question of fact and could only 

be a question of law when no reasonable minds could differ. Hogrefe further argued that 

knowledge of Fenenbock’s and the other codefendants’ various appeals and habeas 

petitions could not be imputed to him, nor could his biological father, who had no 

parental rights at the time, be charged with knowing about respondents’ misconduct 

based on Hogrefe’s single complaint to him after being taken to the crime scene by 

Kartchner shortly after the murder. Hogrefe asserted that Kartchner’s declaration stating 

that he had visited Hogrefe in 2006 and told him about the coercion and manipulation 

allegations was false. 

Respondents argued at the hearing that a mere suspicion of wrongdoing triggered 

Hogrefe’s duty to inquire and investigate any potential injury claims, and that the 

evidence, including Hogrefe’s own declarations and his testimony at Fenenbock’s motion 

to dismiss hearing in January 2020, showed that he had such a suspicion, and that any 

reasonable person in his position would have had such a suspicion. Thus, the delayed 

discovery rule did not apply. 

After considering the parties’ briefs, arguments, declarations, and documentary 

evidence, the court denied Hogrefe’s petition. The court orally ruled that there was “no 

valid basis for allowing the delayed claim” because Hogrefe’s “claim accrued, if not 

sooner, no later than 2006, for the reasons stated in [respondents’] papers.” 
13

In a subsequent written order, the trial court found that it could make factual 

determinations relating to the timeliness of a claim if the timeliness of the claim was 

disputed, which it was here. The court then found that Hogrefe was on inquiry notice of 

his claims no later than 2006 for numerous reasons, including that he had a suspicion of 

the alleged wrongdoing since he testified as a child, that he had no memory of the killing 

even though he knew he testified that he had witnessed it, that at the time he felt as if he 

had to testify to “the story that was in front of him,” and that he purposefully avoided 

thinking about the events related to his present claim. The court further found that 

Sergeant Kartchner had alerted Hogrefe to the claim in 2006, and that Hogrefe could 

have accessed his prior statements and trial testimony, as well as the publicly filed 

documents in the numerous appeals and habeas proceedings, which all raised the issue of 

whether his testimony had been improperly manipulated and coerced. Because the court 

found that Hogrefe’s claim accrued no later than 2006, the court found that his claim as 

well as his application to present a late claim, which he did not file until 2019, were both 

untimely. Hogrefe timely appealed the trial court’s denial of his section 946.6 petition 

for late claim relief. 

DISCUSSION

I

Government Claim Presentation Requirements

Before a suit for money or damages may be brought against a public entity, the 

Government Claims Act (§ 810 et seq.) requires that the injured party timely present a 

claim to the public entity. (§ 911.2.) The failure to do so generally bars the party from 

bringing suit against that entity. (§ 945.4.)6

6 Section 945.4 provides: “Except as provided in Sections 946.4 and 946.6, no suit for 

money or damages may be brought against a public entity on a cause of action for which 
14

Under the Act, personal injury claims must be presented not later than six months 

after a cause of action accrues. (§ 911.2, subd. (a) [“A claim relating to a cause of action 

for death or for injury to person or to personal property or growing crops shall be 

presented . . . not later than six months after the accrual of the cause of action”].) “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.” (Ovando v. County of Los Angeles (2008) 

159 Cal.App.4th 42, 63 (Ovando); § 901.)

If an injured party fails to present a timely claim, he or she may file a written 

application with the public entity for leave to present a late claim. (§ 911.4, subd. (a) 

[“When a claim that is required by Section 911.2 to be presented not later than six 

months after the accrual of the cause of action is not presented within that time, a written 

application may be made to the public entity for leave to present that claim”]; J.J. v. 

County of San Diego (2014) 223 Cal.App.4th 1214, 1219-1220.) The application to file a 

late claim must be presented to the public entity no later than one year after the accrual of 

the cause of action. (§ 911.4, subd. (b) [“The application shall be presented to the public 

entity . . . within a reasonable time not to exceed one year after the accrual of the cause of 

action and shall state the reason for the delay in presenting the claim”].) “Unless the oneyear period is tolled (see § 911.4, subd. (c)), the public entity is ‘powerless to grant relief’ 

if an application for leave to file a late claim was presented after the one-year deadline.” 

(Coble v. Ventura County Health Care Agency (2021) 73 Cal.App.5th 417, 421, citing 

Hom v. Chico Unified School Dist. (1967) 254 Cal.App.2d 335, 339.)

a claim is required to be presented in accordance with Chapter 1 (commencing with 

Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division 

until a written claim therefor has been presented to the public entity and has been acted 

upon by the board, or has been deemed to have been rejected by the board, in accordance 

with Chapters 1 and 2 of Part 3 of this division.”
15

If the public entity denies an application for leave to present a late claim, section 

946.6 authorizes an injured party to petition the trial court for relief from the claim-filing 

requirements. (§ 946.6; J.J. v. County of San Diego, supra, 223 Cal.App.4th at p. 1220.) 

Under section 946.6, a trial court shall relieve the petitioner from the requirement to file a 

claim within six months of accrual (§ 945.4), if the court finds that the application to file 

a late claim under section 911.4 was made within a reasonable time not to exceed one 

year from date of accrual, and “[t]he failure to present the claim was through mistake, 

inadvertence, surprise, or excusable neglect unless the public entity establishes that it 

would be prejudiced in the defense of the claim if the court relieves the petitioner from 

the requirements of Section 945.4.” (§ 946.6, subd. (c)(1).) “[F]iling a late-claim 

application within one year [after the accrual of the cause of action] is a jurisdictional 

prerequisite to a claim-relief petition.” (Santee v. Santa Clara County Office of 

Education (1990) 220 Cal.App.3d 702, 713 (Santee).)

“The court shall make an independent determination upon the petition [for relief 

from the claim requirements]. The determination shall be made upon the basis of the 

petition, any affidavits in support of or in opposition to the petition, and any additional 

evidence received at the hearing on the petition.” (§ 946.6, subd. (e).) 

An order denying a section 946.6 petition is appealable. (Ebersol v. Cowan (1983) 

35 Cal.3d 427, 435, fn. 8.) We review a trial court’s ruling on the petition for an abuse of 

discretion. (DeVore v. Department of California Highway Patrol (2013) 

221 Cal.App.4th 454, 460 (DeVore).) Because section 946.6 is a remedial statute 

intended to relieve unwary claimants trapped by technical rules, a trial court decision 

denying relief will be scrutinized more carefully than an order granting relief. (Ovando, 

supra, 159 Cal.App.4th at p. 64.)
16

II

Jurisdiction to Adjudicate the Date of Accrual

Hogrefe contends that the trial court exceeded its jurisdiction and abused its 

discretion in determining when his cause of action accrued in ruling on his section 946.6 

petition because the date of accrual is a factual issue, which is properly decided by a jury 

at trial and not by the court in a section 946.6 proceeding. Respondents, on the other 

hand, argue that in determining whether Hogrefe was entitled to relief under section 

946.6, the trial court necessarily had to determine when his claim accrued in order to 

decide whether he had filed his late claim application within one-year of accrual as 

jurisdictionally required under the statute. 

This court has previously recognized that “[i]n a proceeding on a section 946.6 

petition, the trial court’s authority to rule on the issue of the accrual of a cause of action is 

a recurring procedural dilemma.” (DeVore, supra, 221 Cal.App.4th at p. 460.) Other 

courts have likewise observed that “[a]uthority diverges on whether the trial court has the 

power to determine the issue of a claim’s timeliness in a claim-relief proceeding.” 

(Santee, supra, 220 Cal.App.3d at p. 711.)

DeVore explained that “[o]ne strand of authority asserts that in the proceeding for 

relief, the issue of whether a claim was timely filed is not properly before the trial court; 

the court may consider only whether a plaintiff qualifies under one of the four categories 

(e.g., inadvertence, mistake, surprise, or excusable neglect).” (Ibid., supra, 

221 Cal.App.4th at p. 460.) A “second strand finds that a trial court can properly 

consider accrual in a proceeding on a petition for relief if necessary to its ruling, but this 

ruling does not preclude a second court from coming to a different conclusion in a legal 

action for damages that alleges a timely presentation of the claim.” (Ibid.) “The third 

strand concludes that the trial court can properly consider timeliness, and its ruling on 

this issue in a petition proceeding has preclusive effect in the independent action for 
17

damages.” (Ibid., citing Ovando, supra, 159 Cal.App.4th at p. 65, fn. 8 [summarizing 

cases].)

Although Hogrefe stated in the court below that he brought the section 946.6

petition for relief out of an abundance of caution in order “to obtain an order that the 

claim was timely filed,” argued that “[t]he issue of whether a claim was timely filed may 

be decided in a claim-relief proceeding,” and devoted the majority of his briefs to arguing 

that his claim was timely under the delayed discovery rule. Hogrefe now relies on the 

first strand of cases described above to argue on appeal that in a proceeding for relief 

from the claim filing requirement under section 946.6, the issue of whether a claim was 

timely filed is not properly before the trial court, and that the trial court here abused its 

discretion in deciding the timeliness issue. (See e.g., Ngo v. County of Los Angeles

(1989) 207 Cal.App.3d 946, 951-952 [because section 946.6 authorizes a court to relieve 

a plaintiff from the claim presentation requirement, but does not authorize a court to 

determine that the plaintiff complied with the claim presentation requirement by 

presenting a timely claim, the timeliness issue is not before the court in a relief 

proceeding]; Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 

817, 822, 827 [“[a] trial court hearing a section 946.6 petition cannot consider whether a 

claim was timely, because that issue is not within the scope of the proceeding”]; Scott v. 

County of Los Angeles (1977) 73 Cal.App.3d 476, 481-482; see also, Gurrola v. County 

of Los Angeles (1984) 153 Cal.App.3d 145, 150 [stating that it was improper for the court 

to decide that the claim was untimely but that because the petitioner sought such a 

determination, and did not appeal the adverse finding, he was bound by collateral 

estoppel in a subsequent civil action].) Based on this authority, Hogrefe also contends 

that a finding as to the date of accrual by a court in connection with a section 946.6 

petition cannot deprive the plaintiff of the right to a jury trial on this issue and therefore is 

not binding in a later action for damages. (See Ngo, at pp. 951-952; Scott, at pp. 481-

482.) 
18

Respondents, not surprisingly, rely on the third strand of cases suggesting that a 

section 946.6 petition necessarily puts the date of accrual at issue and that the court’s 

determination that a claim was untimely is binding in a later action for damages. (See 

e.g., Reyes v. County of Los Angeles (1988) 197 Cal.App.3d 584, 588, 595-596, fn. 5; 

County of Los Angeles v. Superior court (1985) 169 Cal.App.3d 1095, 1097, 1101-1102.)

In DeVore, this court found that “the first strand is anomalous because the date of 

accrual can be a necessary subsidiary finding in deciding whether a party qualifies for 

relief, even if section 946.6 does not authorize the court to grant relief on the basis that a 

claim was in fact timely.” (DeVore, supra, 221 Cal.App.4th at p. 460.) We see no reason 

to depart from DeVore’s reasoning here.7

Section 946.6 provides in relevant part that a trial court “shall relieve the petitioner 

from the requirements of Section 945.4 if the court finds that the application to the board 

under Section 911.4 was made within a reasonable time not to exceed that specified in 

subdivision (b) of Section 911.4 [within one year of accrual] . . . . and that . . . [¶] [t]he 

failure to present the claim was through mistake, inadvertence, surprise, or excusable 

neglect . . . .” (§ 946.6, subd. (c)(1), italics added.) Contrary to Hogrefe’s argument that

a trial court is only allowed to make “subsidiary findings” as to “whether a claimant has 

shown the requisite level of inadvertence, mistake, surprise or excusable neglect,” the 

language in section 946.6, subdivision (c) (1) makes clear that in ruling on the petition, 

the trial court is also called upon to determine whether the petitioner submitted the 

application to file a late claim with the public entity no later than one year of when the 

petitioner’s cause of action accrued. (Santee, supra, 220 Cal.App.3d at p. 713 [“[F]iling

7 Because the DeVore court directed the trial court to grant relief, the majority found it 

need not choose between the second and third strands regarding the future preclusive 

effects of a ruling on accrual in an order denying relief. (DeVore, supra 221 Cal.App.4th 

at p. 460.) 
19

a late-claim application within one year [after the accrual of the cause of action] is a 

jurisdictional prerequisite to a claim-relief petition”].) Hence, the date of accrual is also a 

subsidiary issue when deciding whether a petitioner is entitled to relief under section 

946.6. 

And we reject the notion that by making a subsidiary finding as to the accrual date 

in a petition for relief proceeding, a trial court improperly converts a question of fact to 

one of law. Under section 946.6, a trial court is permitted to “make an independent 

determination upon the petition” based on “the petition, any affidavits in support of or in 

opposition to the petition, and any additional evidence received at the hearing on the 

petition.” (§ 946.6, subd. (e), italics added.) Noticeably absent from the statute, 

however, is any limitation on the court’s authority to make an “independent 

determination upon the petition,” including making factual findings whenever the parties 

submit conflicting affidavits or evidence. (Ibid.) 

In this case, as the statute expressly contemplates (§ 946.6, subd. (c)(1)), and after 

Hogrefe directly raised the issue in his petition and briefing below, the court properly 

considered the evidence presented and independently determined when Hogrefe’s cause 

of action accrued, which was a necessary subsidiary finding to determining whether 

Hogrefe had timely submitted his application to file a late claim under section 946.6. 

Having concluded that the trial court had authority to determine the accrual date of 

Hogrefe’s cause of action when ruling on the petition for relief, we turn next to the 

propriety of the trial court’s accrual determination.

III

Substantial Evidence Supports the Trial Court’s Accrual Determination

For the claim presentation requirement, the date of accrual is the same date on 

which a cause of action would accrue for purposes of the statute of limitations in an 

action against a private party. (Ovando, supra, 159 Cal.App.4th at p. 63; § 901.) 
20

Generally, a cause of action accrues when the wrongful act is done, or the wrongful result 

occurs, and the consequent liability arises. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 

383, 397.) But there is an exception to the general rule known as the delayed discovery 

rule. (Ibid.) Under that exception, a cause of action does not accrue until the plaintiff 

discovers, or has reason to discover, the cause of action. (Ibid.) A plaintiff discovers the 

cause of action when he or she at least suspects a factual basis, as opposed to a legal 

theory, for its elements. (Ibid.) A plaintiff has reason to discover a cause of action when 

he or she has notice or information of circumstances that would put a reasonable person 

on inquiry notice. (Id. at pp. 397-398.)

Here, the trial court found that Hogrefe’s cause of action against respondents 

accrued no later than 2006. The court therefore rejected Hogrefe’s argument under the 

delayed discovery rule that the first time he became aware of respondents’ wrongful 

conduct was in March 2019 when he was contacted by a representative of the Innocence 

Project. In so ruling, the trial court found Sergeant Kartchner’s declaration credible 

wherein he stated that in May 2006 he went to Hogrefe’s house and personally told him 

that Fenenbock and the codefendants were challenging their convictions in federal habeas 

corpus proceedings in which one of the issues was whether Hogrefe had been coerced as 

a child into testifying falsely about Summar’s murder. 

Where, like here, the facts regarding accrual and the statute of limitations are 

disputed, the issue is a factual one as opposed to a legal one. (E-Fab, Inc. v. Accountants, 

Inc. Services (2007) 153 Cal.App.4th 1308, 1320.) A trial court’s factual findings are 

subject to limited appellate review and will not be disturbed on appeal if supported by 

substantial evidence. (See e.g., People v. Zamudio (2008) 43 Cal.4th 327, 342 [trial 

court’s findings of historical fact is reviewed under the deferential substantial evidence 

standard; if there is conflicting testimony or evidence, appellate court must accept the 

trial court’s resolution of disputed facts and inferences and its evaluations of credibility to 

the extent the record supports them]; Williams v. Saunders (1997) 55 Cal.App.4th 1158, 
21

1162.) As long as there is substantial evidence, the appellate court must affirm, even if 

the reviewing justices personally would have ruled differently if they had presided over 

the proceedings below and even if other substantial evidence supports a different result. 

(Bowers v. Bernards (1980) 150 Cal.App.3d 870, 873-874.)

Given the applicable, deferential standard of review, and in light of the evidence in 

the record, in particular Sergeant Kartchner’s declaration, we are constrained to conclude 

that sufficient evidence supports the trial court’s factual findings that in 2006 Kartchner 

alerted Hogrefe to the allegation of respondents’ wrongful conduct, which Fenenbock and 

his codefendants had raised in their federal habeas corpus proceedings, and that this 

notice would have put a reasonable person on inquiry notice of a possible claim against 

respondents.8 It is well settled that the testimony of a single witness is sufficient for the 

proof of any fact. (People v. Avila (2009) 46 Cal.4th 680, 703.) This is so even though 

Hogrefe’s second declaration denied that the meeting with Kartchner in 2006 had ever 

occurred, as we cannot substitute our evaluation of a witness’s credibility for that of the 

fact finder. (People v. Snow (2003) 30 Cal.4th 43, 66 [under the prevailing standard of 

review for a sufficiency claim, we defer to the trier of fact’s evaluation of credibility].)

Nor does the fact that the trial court made the accrual findings based on the 

parties’ written declarations rather than live testimony from Hogrefe or Sergeant 

Kartchner dictate a different result. Section 946.6, subdivision (e) “makes clear that 

when no testimonial evidence is offered, the court may decide whether to grant relief on 

the basis of the petition and declarations offered in support of, or opposition to, the 

petition.” (County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 553-554, fn. 

8

In light of our conclusion that Sergeant Kartchner’s declaration, which the trial court 

found credible, constitutes sufficient evidence to support the trial court’s factual finding 

that Hogrefe’s claim accrued no later than 2006, we need not address the other factual 

findings the court made to support its ruling that Hogrefe was on inquiry notice no later 

than 2006. 
22

omitted.) Although “[a]ctual testimony is sometimes preferable to declarations, and 

direct declarations preferable to hearsay . . . any preference for one mode or another of 

presenting evidence does not oust the superior court of its statutory discretion to 

determine whether or not to grant relief on the basis of the petitions and declarations 

before it.” (Id. at p. 554.) 

Because substantial evidence supports the court’s finding that Hogrefe’s claim 

accrued no later than 2006, and because the record shows he did not file either his claim 

or his application to file a late claim with respondents until 2019, the trial court did not 

abuse its discretion in determining he was not entitled to relief under section 946.6. 

(Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779 [“[w]hen the underlying 

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 Government Code section 

946.6”]; Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 488 

[same].)

IV

Collateral Estoppel

Both parties request that we determine in the first instance whether the trial court’s 

ruling on the petition for relief as to the accrual and timeliness issues have preclusive 

effect in Hogrefe’s federal action against respondents. But in resolving the precise issue 

before us on appeal--whether the trial court properly denied Hogrefe’s petition for relief 

under section 946.6--we are not squarely presented with the preclusion issue. (Compare 

County of Los Angeles v. Superior Court, supra, 169 Cal.App.3d at p.1097 [“The issue 

raised in this original proceeding is whether a court order denying a plaintiff’s petition 

pursuant to Government Code section 946.6 collaterally estops the plaintiff from alleging 

in a superior court action that she has filed a timely claim pursuant to Government Code 
23

section 911.2”].) We decline to address the issue, as it is more properly raised in the 

federal court where Hogrefe’s complaint is still pending.

DISPOSITION

The order denying Hogrefe’s petition for relief under section 946.6 is affirmed. 

Respondents shall recover costs on appeal. (Cal. Rules of Court, rule 8.278.) 

 

HULL, Acting P. J.

We concur:

 

RENNER, J.

 

KRAUSE, J.