Seymour v. Heritage Operating LP
Filed 2/5/07 Seymour v. Heritage Operating LP CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ANN SEYMOUR, Plaintiff and Appellant, v. HERITAGE OPERATING LP, Defendant and Respondent. | D047705 (Super. Ct. No. GIC814312) |
APPEAL from a judgment of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge. Affirmed.
I.
INTRODUCTION
Ann Seymour filed a second amended complaint against John and Kathy Fitzsimmons (collectively Fitzsimmons), the John R. Fitzsimmons Trust,[1] and Heritage Operating LP (Heritage). In her second amended complaint, Seymour brought a negligence claim and a wrongful death claim against Heritage based on Heritage's alleged failure to properly inspect several gas appliances in premises Seymour rented from Fitzsimmons. Seymour alleged that Heritage negligently failed to discover that the kitchen stove in the premises was leaking carbon monoxide, and that the carbon monoxide caused her to suffer severe personal injuries and also caused her mother's death.
Heritage demurred to the complaint on the ground that the statute of limitations barred Seymour's claims. The trial court sustained Heritage's demurrer without leave to amend. Seymour filed a motion for reconsideration of the trial court's order sustaining the demurrer. Heritage filed a motion for sanctions on the ground that Seymour's motion for reconsideration was frivolous. The trial court denied Seymour's motion for reconsideration, granted Heritage's motion for sanctions, and entered judgment in favor of Heritage.
On appeal, Seymour claims the trial court erred in sustaining Heritage's demurrer without leave to amend. Seymour contends that she sufficiently alleged facts supporting the operation of the discovery rule, so as to defeat Heritage's statute of limitations defense. Seymour argues in the alternative that the trial court erred in denying her leave to amend her complaint. Seymour also claims the trial court erred in denying her motion for reconsideration and in granting Heritage's motion for sanctions.
We conclude that the trial court properly sustained Heritage's demurrer without leave to amend. In addition, we conclude that the trial court did not abuse its discretion in denying Seymour's motion for reconsideration or in granting Heritage's motion for sanctions. Accordingly, we affirm the judgment and affirm the trial court's order denying Seymour's motion for reconsideration and granting Heritage's motion for sanctions.[2]
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Seymour's original complaint
In July 2003, Seymour filed a seven count complaint against Fitzsimmons, the John R. Fitzsimmons Trust, and 100 Doe defendants, alleging breach of warranty of habitability, tortious failure to provide habitable premises, nuisance, intentional infliction of emotional distress, violation of statutory duty, negligence, and wrongful death. In her complaint, Seymour alleged that she rented premises located in Lake Cuyamaca (the premises) from Fitzsimmons and the John R. Fitzsimmons Trust, from approximately July 1, 1995 until November 5, 2002. Seymour alleged that her mother, Ava Seymour (Ava), lived in the premises from approximately 1996 until her death on October 5, 1997. Seymour claimed that the premises suffered from numerous defects, including that the " propane gas fired kitchen stove leaked propane gas and burned improperly thereby emitting high levels of carbon monoxide and other toxic fumes." Seymour alleged that the toxic fumes caused her to suffer personal injuries and caused Ava's death.
B. The first amended complaint
In September 2004, Seymour filed an amended complaint. Seymour's amended complaint contained causes of action against Heritage entitled, " Negligence for Kitchen Stove," " Negligence for Propane Tank," " Negligence for Hot Water Heater," and " Wrongful Death." The gist of Seymour's allegations was that Heritage had inspected the various appliances and failed to discover leaking gases, resulting in Seymour's personal injuries and Ava's death.
With respect to the timeliness of her action, Seymour alleged the following:
" Plaintiff did not discover that the serious defects in the subject PREMISES, and specifically with regard to the propane storage tank, the propane stove, the propane forced heat system and the propane water heater were the cause of Plaintiff's physical problems and AVA'S death until on or about October 10, 2002, a date within two years prior to the commencement of this action."
In January 2005, Heritage filed a demurrer as to each of Seymour's claims. In its memorandum in support of its demurrer, Heritage asserted that each of the claims were barred by the statute of limitations and that Seymour failed to allege facts supporting delayed discovery of her claims so as to defeat Heritage's statute of limitations defense.
In March, 2005, Seymour filed an opposition to the demurrer. In her opposition, Seymour argued that the following allegation contained in her original complaint demonstrated delayed discovery of her causes of action against Heritage:
" The deteriorated and dangerous condition of the stove as herein alleged was not discovered by Plaintiff until on or about October 10, 2002, a date within two years before the commencement of this action. Plaintiff could not with due diligence discover the deteriorated and dangerous condition of the stove until on or about this date because Plaintiff did not have the necessary skills and knowledge to ascertain the true condition of the stove, because Plaintiff had asked Defendant [John Fitzsimmons] concerning the condition of the stove and had been assured and reassured that it was safe, because Plaintiff had request[ed] and obtained an inspection of the stove by the propane gas supply company and was told that the [stove] was safe and because one of the symptoms of exposure to improperly combusted hydrocarbons is the loss of mental facilities [sic]."
Seymour also stated in her opposition, " Plaintiff insists that Defendant Heritage knows full well how it caused Plaintiff's delay in discovery, due to its repeated assurances that there was no defect in the propane systems." Seymour requested that the court overrule the demurrer, or, in the alternative, allow her to amend her complaint to adequately allege facts supporting her claim of delayed discovery.
Heritage filed a reply in which it reiterated its claim that Seymour had not adequately alleged delayed discovery of her causes of action. Among Heritage's arguments in support of its claim was the following:
" [T]he plaintiff omits any mention of the time period between her alleged last service call to HERITAGE on November 12, 1996, and the date she vacated the premises on October 31, 2002. In this regard, the plaintiff has not pled any facts whatsoever, let alone facts demonstrating reasonable efforts to discover. This omission is telling ─ no efforts at all were made during that six-year period."
The trial court sustained Heritage's demurrer with respect to each of Seymour's claims against it, with leave to amend. In its ruling, the court reasoned:
" Plaintiff does not dispute that it appears from the face of the [first amended complaint] that the seventh through tenth causes of action are time-barred without the benefit of the discovery rule. . . . Because the [first amended complaint's] allegations regarding the time and manner of discovery and plaintiff's diligence are conclusory . . ., the [first amended complaint] does not adequately plead around the statute of limitations defense."
C. The second amended complaint
In May 2005, Seymour filed a second amended complaint. The second amended complaint contained causes of action against Heritage entitled " Negligence ─ Inspection, Repair and Warning of Defective Gas Appliances" and " Wrongful Death." In this complaint, Seymour alleged that in September 1995, shortly after she moved into the premises, she informed Fitzsimmons that her stove was malfunctioning and that she smelled gas. Fitzsimmons instructed Seymour to call Heritage. Heritage inspected the stove and informed Seymour that the stove needed a new regulator. When the stove continued to malfunction, Fitzsimmons again advised Seymour to call Heritage. Seymour alleged that Heritage performed additional safety inspections on the gas appliances within the premises on March 1, 1996 and November 12, 1996, and that on both occasions, Heritage informed Seymour that the appliances were in good working order and that there were no gas leaks.
Seymour also alleged, " After 1996, defendant HERITAGE came to the Premises additional times, in response to plaintiff SEYMOUR'S request to perform safety inspections, and to insure that the gas appliances were in good working order. . . . Each time HERITAGE undertook to perform an inspection of the gas appliances, it informed SEYMOUR that the gas appliances were safe and there was no leaking gas." Seymour further alleged:
" Eventually defendant FITZSIMMONS directed plaintiff SEYMOUR not to call HERITAGE to the Premises anymore because HERITAGE was billing FITZSIMMONS for the inspection calls. FITZSIMMONS advised SEYMOUR that he would perform any further inspections and repairs.
" 25. Between 1996 and October, 2002, on many occasions, defendant FITZSIMMONS and or Gary Price[[3]] responded to the Premises to inspect the gas appliances, and to also re-light the pilot lights. FITZSIMMONS and Gary Price continuously informed SEYMOUR that the gas appliances were working properly and there was no danger from gas. Plaintiff SEYMOUR reasonably relied upon their representations that the appliances were safe, together with the representations from HERITAGE."
Seymour alleged that she suffered numerous health problems between July 15, 1995 and October 2002 including " increasing bouts of dizziness, balance problems, memory and concentration problems, vision problems and other neurological problems." Seymour further alleged that during this time period she suffered from " breast cancer, and kidney and heart problems." Seymour claimed that Ava's health continuously declined after she began to reside at the premises, until her death in October 1997. During the time she was living at the premises, Ava complained that she was having difficulty breathing and that the " air was heavy."
Seymour alleged that in October 2002, she retained a licensed mechanical engineering company to inspect the premises. Seymour alleged that an engineer found that the propane stove was defective and that it was leaking large amounts of carbon
monoxide gas into the premises. Seymour further alleged that the engineer found other deficiencies in the gas appliances that contributed to the carbon monoxide emissions.
Seymour claimed that " [b]etween plaintiff SEYMOUR'S initial date of occupancy, July 15, 1995 and October 21, 2002, she was unable to reasonably discover the leaking carbon monoxide." She further claimed that she exercised reasonable diligence in requesting safety inspections from Heritage and Fitzsimmons. Seymour alleged that she did not know that the malfunctioning gas appliances were the cause of her personal injuries and Ava's death until approximately October 21, 2002.
In her negligence claim against Heritage, Seymour alleged that Heritage failed to " properly inspect, diagnose, advise or warn plaintiff SEYMOUR or plaintiff's decedent, Ava Seymour, of the malfunctioning gas appliances and of the escaping gases in and around the Premises, including carbon monoxide." Seymour claimed that as a result, she suffered severe personal injuries and emotional distress. In her wrongful death cause of action, Seymour claimed that Heritage's negligence resulted in carbon monoxide leaking throughout the premises, and was a substantial factor in causing Ava's death.
Heritage again filed a demurrer as to each of Seymour's claims. Heritage argued that the claims were barred by the statute of limitations, and that Seymour had failed to allege facts supporting delayed discovery of her claims so as to defeat Heritage's statute of limitations defense. Heritage requested that the court sustain its demurrer without leave to amend.
In her opposition, Seymour claimed she had not discovered that the stove was leaking carbon monoxide until October 2002, and that she had reasonably relied on defendants' representations that the gas appliances were working properly. Seymour stated that " between July 1995 and November 1996" Heritage had performed four safety inspections on the gas appliances, and each time informed her that there was no leaking gas. In addition, Seymour claimed that " [o]n numerous occasions between 1996 and October, 2002," Fitzsimmons and Price inspected her gas appliances and told Seymour that the appliances were working properly. Seymour argued, " If nothing else defendant Heritage should be estopped from challenging the delayed discovery rule because it was Heritage who expressly informed plaintiff that she was not in any danger."
Heritage filed a reply and the trial court ruled on the demurrer. The court sustained the demurrer without leave to amend, reasoning:
" Plaintiff does not dispute that it appears from the face of the [second amended complaint] that the fifth and ninth causes of action are time barred as to defendant Heritage without the benefit of the delayed discovery rule. The [second amended complaint] does not adequately allege delayed discovery. It appears from the allegations of the [second amended complaint] that plaintiff had notice or information of circumstances to put a reasonable person on inquiry that her injuries and her mother's death were (purportedly) caused by defendant Heritage's alleged negligence more than two years before Heritage was added as a defendant on September 24, 2004 and more than two years before this action was commenced on July 15, 2003. The court does not find plaintiff's estoppel argument . . . persuasive. [¶] Plaintiff has not shown there is a reasonable possibility that she can cure this defect by further amendment."
D. Seymour's motion for reconsideration
On July 20, 2005, Seymour filed a motion for reconsideration. In her motion for reconsideration, Seymour stated the following:
" On July 12, 2005[,] four days after the court ruled on the demurrer, plaintiff Ann Seymour was examined by neurologist Dr. Grisolia who reviewed the more extensive MRI done by Preventium Labs in Phoenix and wrote a letter stating that the increased fatigue and damage was a result of the [environmental] toxins from her home. Dr. Grisolia explained to Ann Seymour that the area of the brain showing damage was the white area of the brain that is the part that makes connections."
Seymour also stated that in June of 1996 a technician from the Oasis Medical Clinic tested her residence and informed her that she was not getting enough oxygen. Seymour claimed that these facts demonstrated that it was " unreasonable to expect her to connect the unknown gas leaks with her symptoms."
Seymour attached a declaration to her motion for reconsideration in which she stated that on July 12, 2005, Dr. Grisolia examined her and reviewed an MRI of her brain that had been taken some time earlier. Seymour claimed that Dr. Grisolia wrote a letter stating that " the fatigue and problems I was having were the probable results of [environmental] toxins from my home." In addition, Seymour stated that Dr. Grisolia explained that " the MRI showed a firing of the area that controls connections." Seymour also stated that she did not know which area of her brain had been affected by the gas until July 12, 2005, because she had not previously consulted a neurologist regarding the MRI.
Heritage filed an opposition to the motion for reconsideration. In its opposition, Heritage claimed that Seymour's motion was procedurally defective in that Seymour had not provided an affidavit that complied with Code of Civil Procedure section 1008, subdivision (a).[4] Heritage also argued that Seymour's declaration was inadmissible because it had not been made under the laws of California, and did not state the place of execution, as required pursuant to section 2015.5. On the merits, Heritage claimed that Seymour's motion for reconsideration merely reiterated a claim she had made in her original complaint, and that it did not contain any relevant new facts. Heritage further argued that Seymour's motion lacked adequate foundation because, among other reasons, Seymour failed to attach a copy of the doctor's letter discussed in the motion. Finally, Heritage argued that, assuming Seymour had stated a new fact in her motion for reconsideration, she failed to demonstrate why she had been unable to discover the fact earlier.
On September 30, 2005, the court entered an order denying Seymour's motion for reconsideration. In its ruling, the court stated that Seymour's declaration was inadmissible in that it did not comply with section 1008, subdivision (a) and section 2015.5. The court also ruled that the " 'new fact' identified in plaintiff's opening papers is not 'new.'" The court further ruled that, assuming it were to reconsider its order sustaining Heritage's demurrer, it would affirm the ruling on the basis that Seymour had not demonstrated that she could allege facts sufficient to avoid Heritage's statute of limitations defense.
E. Heritage's motion for sanctions
In September 2005, Heritage filed a motion pursuant to sections 1008 and 128.7, requesting that the court award it sanctions in the amount of $1,661.30. Heritage claimed that Seymour's motion for reconsideration was frivolous and without evidentiary or legal support. Heritage also argued that the motion was procedurally defective. Heritage claimed that the motion did not contain any new facts sufficient to warrant reconsideration, and that Seymour failed to offer any explanation as to why any purportedly new facts could not have been discovered earlier. Heritage also argued that Seymour's pro per status should not relieve her from having to comply with legal requirements, noting that Seymour had a Juris Doctorate degree.
Heritage attached to its motion a declaration from its attorney stating that Heritage had incurred a total of $1,661.30 in attorney fees and court costs in responding to Seymour's motion for reconsideration and in bringing its motion for sanctions. Heritage requested that the trial court impose monetary sanctions in the amount of $1,661.30 against Seymour, to be paid to Heritage from the undertaking Seymour had deposited with the court pursuant to section 1030, subdivision (a).[5]
Seymour filed an opposition to the motion for sanctions. In her opposition, Seymour argued that her motion for reconsideration did contain new facts. Specifically, Seymour claimed that the allegation that she had received a doctor's diagnosis that " it takes longer for [Seymour] to make connections" due to carbon monoxide poisoning was new information.
Heritage filed a reply in support of its motion for sanctions. In its reply, Heritage claimed that Seymour's opposition papers served only to further reveal the frivolity of her motion for reconsideration.
On September 30, 2005, the trial court issued an order granting Heritage's motion for sanctions.[6] The court reasoned, " By failing to submit the declaration required by [section] 1008 [, subdivision] (a) and by failing to show that her 'new fact' was in fact new and supports an allegation that would avoid the statute of limitations defense, plaintiff violated [section] 128.7 [, subdivision] (b)(2) and (b)(3)." The court ruled that Heritage had incurred reasonable attorney fees and costs in the amount of $1,036.30. However, the court noted that it was required by section 128.7, subdivision (d) to impose only the amount of sanctions sufficient to deter repetition of the offending conduct. The court found this amount to be $500, and imposed sanctions against Seymour in the amount of $500, to be paid to Heritage from funds Seymour had previously deposited with the court, pursuant to section 1030, subdivision (a).
F. The judgment and appeal
In October 2005, the trial court entered judgment. Seymour timely appeals.
III.
DISCUSSION
A. The trial court did not err in sustaining Heritage's demurrer without leave
to amend
Seymour claims the trial court erred in sustaining Heritage's demurrer to her second amended complaint without leave to amend on the ground that her causes of action against Heritage were time barred. Seymour claims that she adequately alleged facts to support the operation of the delayed discovery rule so as to defeat Heritage's statute of limitations defense. In the alternative, she claims the trial court erred in denying her leave to amend her complaint to allege such facts.
1. The law governing appeals after an order sustaining a demurrer
without leave to amend
The law governing an appeal after an order sustaining a demurrer without leave to amend is well established:
" 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
In order to meet the burden of proving a reasonable possibility of amending the complaint, " [p]laintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citations.]" (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
2. The statute of limitations for personal injury and wrongful death
claims based on negligence
a. The statute of limitations
Former section 340, subdivision (3) provided a one-year statue of limitations for " [a]n action for . . . injury to or for the death of one caused by the wrongful act or neglect of another."
Section 335.1, which became effective January 1, 2003, provides for a two-year statute of limitations for " [a]n action for . . . injury to, or for the death of, an individual caused by the wrongful act or neglect of another." (§ 335.1, added by Stats. 2002, ch. 448, § 3; see Cal. Const. art. IV, § 8 [providing for manner by which to calculate effective date of statutes].) Section 335.1 does not apply retroactively to save a claim that was already barred by former section 340, subdivision (3) as of January 1, 2003, the date section 335.1 became effective. (Andonagui v. May Dept. Stores Co. (2005) 128 Cal.App.4th 435, 439-441 (Andonagui); Krupnick v. DukeEnergyMorroBay (2004) 115 Cal.App.4th 1026, 1028-1030.)
Section 340.8, which became effective on January 1, 2004, applies to injuries, illnesses, or death based on exposure to hazardous materials or toxic substances. (§ 340.8, added by Stats. 2003, ch. 873, § 1; see Cal. Const. art. IV, § 8.) Section 340.8, subdivision (a) generally supplies a two-year limitations period from the date on which the plaintiff discovers, or should have discovered, his or her injury or illness, its cause, and sufficient knowledge of the wrongful conduct causing the injury. Section 340.8, subdivision (b) provides a similar two-year limitations period for wrongful death claims based on exposure to hazardous materials or toxic substances.[7]
A " newly enlarged limitations period will apply retroactively, reviving actions that are already time-barred, only if the Legislature expressly stated such an intent." (Andonagui, supra, 128 Cal.App.4th 435, 440.) The text of section 340.8 does not indicate that the Legislature intended for the statute to apply retroactively. Thus, as with section 335.1, section 340.8 applies in this case only if it became effective prior to Seymour's claims becoming time barred pursuant to former section 340, subdivision (3).
b. The discovery rule
In Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807 (Fox), the California Supreme Court explained the manner in which a statute of limitations ordinarily operates:
" A plaintiff must bring a claim within the limitations period after accrual of the cause of action. [Citations.] In other words, statutes of limitation do not begin to run until a cause of action accrues. [Citation.] [¶] Generally speaking, a cause of action accrues at 'the time when the cause of action is complete with all of its elements.' [Citations.]"
The Fox court noted that an exception to the ordinary rule of accrual of a cause of action is the " discovery rule," which postpones accrual until the plaintiff discovers, or has reason to discover, her cause of action. (Fox, supra, 35 Cal.4th at p. 807.) The Fox court also defined the point in time at which a plaintiff has reason to discover a cause of action:
" A plaintiff has reason to discover a cause of action when he or she 'has reason at least to suspect a factual basis for its elements.' [Citations.] Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. [Citations.] Norgart [v. Upjohn Co. (1999) 21 Cal.4th 383] explained that by discussing the discovery rule in terms of a plaintiff's suspicion of 'elements' of a cause of action, it was referring to the 'generic' elements of wrongdoing, causation, and harm. (Norgart, supra, 21 Cal.4th at p. 397.) In so using the term 'elements,' we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them." (Fox, supra, 35 Cal.4th at p. 807.)
The Fox court also described the type of allegations a plaintiff seeking to rely on the discovery rule must plead in order to avoid a defendant's demurrer premised on the statute of limitations:
" In order to rely on the discovery rule for delayed accrual of a cause of action, '[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.' [Citation.] In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to 'show diligence'; 'conclusory allegations will not withstand demurrer.' [Citation.]" (Fox, supra, 35 Cal.4th at p. 808.)
3. The trial court did not err in sustaining Heritage's demurrer
a. Absent operation of the discovery rule, Seymour's personal injury
and wrongful death claims against Heritage are time barred
The trial court found, and Seymour does not dispute on appeal, that her negligence and wrongful death claims against Heritage are time barred unless the discovery rule applies. The most recent specific date on which Seymour alleges that Heritage acted negligently was November 12, 1996. Seymour alleges that Heritage's inspection on that date was negligent in that Heritage erroneously reported to Seymour that there were no gas leaks in the premises, thus allowing dangerous toxic fumes to continue to escape in the premises, and that she suffered physical injuries from the toxic fumes even before November 12, 1996. Thus, all of the elements of Seymour's negligence cause of action had occurred as of November 12, 1996. (See Baptist v. Robinson (2006) 143 Cal.App.4th 151, 170 [defining elements of negligence cause of action].) Seymour's negligence cause of action therefore accrued no later than November 12, 1996, absent operation of the discovery rule. (Fox, supra, 35 Cal.4th at p. 806.) Unless the discovery rule applies, Seymour's negligence cause of action is time barred pursuant to former section 340, subdivision (3) because it was not filed before November 12, 1997.
Seymour's wrongful death cause of action became complete and accrued no later than October 5, 1997, the date on which Ava died, unless the discovery rule applies. (See e.g. Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) Absent operation of the discovery rule, Seymour's wrongful cause of action was time barred pursuant to former section 340, subdivision (3) because it was not filed before October 5, 1998.
b. Seymour failed to allege facts sufficient to support her
claim that the discovery rule applies
Seymour does not allege in her complaint that she had no reason to suspect that Heritage had been negligent, as is required. (See Fox, supra, 35 Cal.4th at p. 807 [" A plaintiff has reason to discover a cause of action when he or she 'has reason at least to suspect a factual basis for its elements'" ].) Rather, Seymour alleged only that she had not been able to discover the leaking carbon monoxide until October 2002. Under the discovery rule, accrual of Seymour's negligence and wrongful death claims could be postponed only to the date on which she suspected Heritage's negligence, not until an expert allegedly confirmed her suspicion that carbon monoxide was leaking in the house. (Fox, supra, 35 Cal.4th at p. 807.)
We reject Seymour's argument that her diligence in searching for evidence to support her suspicions is relevant to the issue of when her claim accrued:
" It is a plaintiff's suspicion of negligence, rather than an expert's opinion, that triggers the limitation period. The limitations period begins when the plaintiff's suspicions are aroused. The period is not affected by the plaintiff's diligence in finding facts to support his lawsuit. For example, in Kleefeld v. Superior Court (1994) 25 Cal.App.4th 1680 [31 Cal.Rptr.2d 12], the court rejected a plaintiff's argument that his diligence in pursuing his suspicions regarding a connection between his wife's death and the defendant's treatment was relevant to the running of the statute of limitations: " [A] plaintiff's diligence after he has become suspicious of wrongdoing is not relevant to the running of the statute of limitations. Diligence is only relevant to determine when he should have suspected wrongdoing. Once a plaintiff actually has the requisite suspicion, the statute of limitations commences to run. It is not tolled by efforts to learn more about the matter short of filing suit." ( Id. at p. 1684.)" (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1300.)
Because Seymour has failed to allege facts sufficient to support her claim that the discovery rule applies, both her negligence claim and her wrongful death claim are time barred by former section 340, subdivision (3) before the effective date of either section 335.1 or section 340.8. Accordingly, former section 340, subdivision (3) applies, and bars both of Seymour's claims against Heritage.
c. Seymour failed to allege facts sufficient to support her claim that Heritage
is estopped from relying on a statute of limitations defense
Seymour claims that her second amended complaint alleges facts sufficient to estop Heritage from relying on a statute of limitations defense.
In Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 529, the court outlined the elements of equitable estoppel as a means of avoiding a statute of limitations defense:
" 'A defendant will be estopped to assert the statute of limitations if the defendant's conduct, relied on by the plaintiff, has induced the plaintiff to postpone filing the legal action until after the statute has run. [Citation.]' [Citation.] The elements of equitable estoppel are: (1) the party to be estopped must be apprised of the facts; (2) that party must intend that his or her conduct be acted on, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) the party asserting the estoppel must reasonably rely on the conduct to his or her injury. [Citation.]"
A party seeking to avoid a defendant's statute of limitations defense on the ground of equitable estoppel must plead facts sufficient to prove the elements of the doctrine. (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 385 [concluding trial court properly dismissed claims on demurrer where plaintiffs failed to plead facts that would equitably estop defendants from asserting statute of limitations defense]; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 686 [" The most glaring problem with plaintiffs' argument is that plaintiffs have failed to plead the elements of equitable estoppel" ].)
The most recent specific date on which Seymour claimed Heritage performed a safety inspection of the gas appliances at the premises is November 12, 1996. Seymour does not allege that Heritage took any specific actions after this time sufficient to estop Heritage from raising a statute of limitations defense. Seymour alleges in her complaint that, " After 1996, defendant HERITAGE came to the Premises additional times, in response to plaintiff SEYMOUR'S request to perform safety inspections, and to insure that the gas appliances were in good working order." (Italics added.) Seymour did not allege any specific dates, or even a range of approximate dates, on when these additional safety inspections allegedly occurred. Such a vague allegation is not a sufficient basis on which to invoke equitable estoppel.
4. The trial court did not abuse its discretion in denying Seymour leave
to amend her complaint
Seymour requests that this court order the trial court to grant her leave to amend her complaint. Seymour has previously been given an opportunity to amend her complaint to attempt to avoid Heritage's statute of limitations defense, but has failed to do so. Further, Seymour failed to identify the manner in which she could amend her complaint so as to avoid Heritage's statute of limitations defense, either in the trial court or this court, as is required. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 349.) Under these circumstances, we conclude that the trial court did not abuse its discretion in denying Seymour leave to amend her complaint.
B. The trial court did not err in denying Seymour's motion for reconsideration
Seymour claims the trial court erred in denying her motion for reconsideration. We review her claim pursuant to the abuse of discretion standard of review. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
1. Governing law
Section 1008 provides in relevant part:
" (a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown."
" Section 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time." (New York Times Co. v. Superior Court, supra, 135 Cal.App.4th at p. 212.) A new or different fact or circumstance that is collateral to the merits of the initial motion is insufficient to warrant reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)
2. The trial court did not abuse its discretion in denying Seymour's motion
for reconsideration
In her declaration in support of her motion for reconsideration, Seymour failed to comply with section 2015.5 and section 1008, subdivision (a).[8] Further, the motion did not provide any reason why the purported new " facts" discussed in the motion were not discovered earlier. The gist of the motion, i.e., that Seymour was unable to discover her causes of action earlier due to brain damage, was not new. Seymour had alleged as much in her original complaint, in which she stated, " Plaintiff could not with due diligence discover the deteriorated and dangerous condition of the stove until on or about [October 10, 2002] because . . . one of the symptoms of exposure to improperly combusted hydrocarbons is the loss of mental faculties." Finally, the motion did not demonstrate that Seymour could allege facts sufficient to defeat Heritage's statute of limitations defense.
We conclude the trial court did not abuse its discretion in denying Seymour's motion for reconsideration.
C. The trial court did not err in granting Heritage's motion for sanctions
Seymour claims the trial court erred in granting Heritage's motion for sanctions and imposing sanctions against her in the amount of $500. We review this claim pursuant to the abuse of discretion standard of review. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.)
1. Governing law
Section 1008 provides in relevant part:
" (d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7."
Section 128.7 provides in relevant part:
" (b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
[¶] . . . [¶]
" (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
" (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
[¶] . . . [¶]
" (d) A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated. Subject to the limitations in paragraphs (1) and (2), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the violation.
" (1) Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b).
" (2) Monetary sanctions may not be awarded on the court's motion unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned."
" [S]ection 128.7 requires only that the conduct be 'objectively unreasonable' . . . ." (Guillemin v. Stein, supra, 104 Cal.App.4th at p. 167, quoting In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.)
2. The trial court did not abuse its discretion in imposing sanctions
Seymour's motion for reconsideration was procedurally defective and frivolous on the merits. The motion for reconsideration did not contain any relevant new facts, and failed to offer an explanation as to why the purportedly new facts asserted in the motion could not have been discovered earlier.
Seymour claims that sanctions were improper because her motion for reconsideration did contain a " new fact [that] might well have tipped the balance on the issue of delayed discovery." We reject this argument for the reasons discussed in section part III.B., ante.
The trial court did not abuse its discretion in granting Heritage's motion for sanctions and imposing sanctions in the amount of $500.[9]
IV.
DISPOSITION
The judgment is affirmed. The order denying Seymour's motion for reconsideration and granting Heritage's motion for sanctions is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
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[1] John and Kathy Fitzsimmons and the John R. Fitzsimmons Trust are not parties to this appeal.
[2] Seymour also contends that her wrongful death claim against Heritage states facts sufficient to support a cause of action for wrongful death. In light of our conclusion that the trial court did not err in sustaining Heritage's demurrer without leave to amend on the ground that Seymour's claims against Heritage were barred by the statute of limitations, we need not consider this argument.
[3] Elsewhere in her complaint, Seymour alleged that " FITZSIMMONS employed a neighbor of SEYMOUR'S, Gary Price, to help him inspect and repair the gas appliances."
[4] Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
[5] Section 1030, subdivision (a) provides, " When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, 'attorney's fees' means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract."
[6] In the same order, the trial court denied Seymour's motion for reconsideration. (See part II.D., ante.)
[7] Section 340.8 provides: " (a) In any civil action for injury or illness based upon exposure to a hazardous material or toxic substance, the time for commencement of the action shall be no later than either two years from the date of injury, or two years after the plaintiff becomes aware of, or reasonably should have become aware of, (1) an injury, (2) the physical cause of the injury, and (3) sufficient facts to put a reasonable person on inquiry notice that the injury was caused or contributed to by the wrongful act of another, whichever occurs later. [¶] (b) In an action for the wrongful death of any plaintiff's decedent, based upon exposure to a hazardous material or toxic substance, the time for commencement of an action shall be no later than either (1) two years from the date of the death of the plaintiff's decedent, or (2) two years from the first date on which the plaintiff is aware of, or reasonably should have become aware of, the physical cause of the death and sufficient facts to put a reasonable person on inquiry notice that the death was caused or contributed to by the wrongful act of another, whichever occurs later. [¶] (c) For purposes of this section: [¶] (1) A 'civil action for injury or illness based upon exposure to a hazardous material or toxic substance' does not include an action subject to Section 340.2 or 340.5. [¶] (2) Media reports regarding the hazardous material or toxic substance contamination do not, in and of themselves, constitute sufficient facts to put a reasonable person on inquiry notice that the injury or death was caused or contributed to by the wrongful act of another. [¶] (d) Nothing in this section shall be construed to limit, abrogate, or change the law in effect on the effective date of this section with respect to actions not based upon exposure to a hazardous material or toxic substance."
[8] Seymour states that although her declaration was not made under penalty of perjury, the court should have considered the declaration. Seymour's declaration was made under " penalty of purgery [sic]," but failed to comply with section 2015.5 in that it did not state that it had been made in California or under penalty of perjury under the laws of the State of California. We reject Seymour's contention that the trial court " should not have applied" this procedural requirement. In any event, even assuming Seymour's declaration complied with section 2015.5, Seymour's motion for reconsideration was without merit for the reasons stated in the text.
[9] Seymour does not raise any claim with respect to the amount of sanctions imposed.
