Vickers v.
Filed 9/18/13 Vickers v. Wilson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
CAROLYN VICKERS, INC.,
Plaintiff and
Appellant,
v.
LINDA WILSON, et. al.,
Defendants and
Respondents.
2d Civil No.
B246212
(Super. Ct.
No. CV090210)
(San
Luis Obispo County)
Carolyn Vickers, Inc.
(CVI) purchased undeveloped real estate in San Luis
Obispo County from
Allen Little Ventures #1, LLC (ALV) in 2006.
In 2007, CVI learned the property could not be developed due to soil and
groundwater contamination. ALV had
purchased the property from Phyllis Madonna.
Respondents Linda Wilson and Wilson & Company Real Estate were
Madonna's real estate agent in that transaction. In 2009, CVI and ALV sued Madonna, two title
companies, several oil companies and Does 1 through 200 on various tort and
contract theories. In February 2012, CVI
amended its complaint to name respondents as Doe 1 and Doe 2. They demurred on the ground that the
court sustained respondents' demurrer to CVI's fourth amended complaint because
CVI failed to allege facts justifying its late discovery of the causes of
action against respondents. CVI contends
the trial court erred because its Doe amendments "relate back" to the
date its original complaint was filed.
(Code Civ. Proc., § 447.)
Facts
Appellant's original
complaint alleged that, before 2005, Phyllis Madonna owned Tract 1259 in
Obispo County. Four pipelines, used
to transport oil and oil products, ran across Tract 1259. These pipelines were owned, operated and
maintained by various oil companies. In
1981, an employee of Madonna's struck a pipeline owned by Unocal with a
backhoe, causing an oil spill. Madonna
and Unocal did not clean up the spill or its after effects, resulting in soil
and groundwater contamination. Other
pipelines owned by other companies may also have leaked or discharged oil on
the property. Madonna knew about the
contamination when she hired respondents in 2004 "to act as her
realtor/broker to sell Tract 1259."
Although she had a duty to disclose environmental hazards and other
defects affecting the property, "Madonna and her employees or agents
failed to disclose" to ALV the existence of the pipelines, the 1981 spill,
or the resulting soil and groundwater contamination. In addition, title companies involved in the
sale to ALV failed to disclose any easements for oil pipelines or the existence
of the pipelines.
With respect to
respondents, the original complaint further alleged, "Madonna and Linda
Wilson and Wilson & Company failed to disclose that: there were oil pipelines running through and
adjacent to the Tract 1259; one of Mrs. Madonna and/or her husband and/or their
company's employees or agents had struck one of the pipelines in April 1981
causing a substantial amount of oil to spill on and into Tract 1259 causing
serious soil and groundwater contamination; Madonna and/or her husband and/or
their company, and/or the responsible oil companies had failed to clean up the
oil spill and resulting contamination; and that the oil pipelines owned,
operated and/or maintained by [the oil company defendants] may have leaked
and/or otherwise discharged oil and/or other oil related products and
contaminated the soil and groundwater beneath Tract 1259."
In June 2006, ALV sold
two lots in Tract 1259 to appellant.
Appellant and ALV discovered the contamination in May 2007. ALV assigned its rights against Madonna and
the other defendants to appellant.
Appellant filed its original complaint in April 2009 but conducted no
formal discovery until April 2011. At
that time, appellant now contends, it first learned that respondents had
personal knowledge of facts concerning the property, including access to
documents related to the 1981 oil spill, that respondents did not disclose to
appellant.
In February 2012,
appellant filed an amendment to its then-operative third amended complaint,
naming respondents as Doe 1 and Doe 2.
Respondents' demurrer, on statute of limitations grounds, was sustained
with leave to amend. Appellant filed its
fourth amended complaint in August 2012.
It alleges that Madonna "provided [respondents] with all of the
documentation in her files related to Tract 1259." In addition, the fourth amended complaint
alleges that "Madonna and her agents and Linda Wilson did not disclose to
ALV" any information relating to the oil pipelines, the 1981 spill or the
resulting contamination. The complaint
further alleges that respondents negligently failed to disclose and
fraudulently concealed these material facts about the property. Respondents are identified by name as
defendants on these causes of action, but the allegations are otherwise
virtually identical to those of the original complaint.
Respondents again
demurred on the ground that the amendment identifying them as Doe defendants
was filed after the statute of limitations had expired and did not relate back
to the date the original complaint filed.
The trial court sustained the demurrer without leave to amend. Appellant requested that the trial court
dismiss the action with prejudice, with respect to respondents only, to
expedite this appeal. That request was
granted and the order of dismissal was entered on January 2, 2013.
Appellate
Jurisdiction
Respondents contend the
appeal should be dismissed as improperly taken from an invalid clerk's entry of
dismissal. (§ 904.1, subd.
(a).) They are incorrect. As the court noted in Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790,
"[M]any courts have allowed appeals by plaintiffs who dismissed their
complaints after an adverse ruling by the trial court, on the theory the
dismissals were not really voluntary, but only done to expedite the appeal. [Citation.]
Here [appellant] dismissed its complaint after the superior court
sustained [respondents'] demurrer without leave to amend. Moreover, it did so only to obtain a final
judgment so it could contest the court's ruling. Under these circumstances, [appellant's]
request for dismissal was tantamount to a request to enter judgment on
[respondent's] demurrer. We allow the
appeal." (Id. at pp. 792-793; see also Goldbaum
v. Regents of University of California (2011) 191 Cal.App.4th 703,
708; Gutkin v. University of Southern
California (2002) 101 Cal.App.4th 967, 974-975.)
Standard
of Review
"In our de novo
review of an order sustaining a demurrer, we assume the truth of all facts
properly pleaded in the complaint or reasonably inferred from the pleading, but
not mere contentions, deductions, or conclusions of law. (Buller
v. Sutter Health (2008) 160 Cal.App.4th 981, 985-986 (
sufficient as a matter of law, to state a cause of action under any legal theory." (Intengan
v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047,
1052.) "When a ground for objection
to a complaint, such as the statute of limitations, appears on its face or from
matters of which the court may or must take judicial notice, a demurrer on that
ground is proper." (
Cal.App.4th 216, 221.)
We review the decision
of the trial court, not its reasoning. (
(1998) 60 Cal.App.4th 1206.) A
correct judgment will be affirmed even if the trial court's reasons for making
that judgment were erroneous. (
(2010) 189 Cal.App.4th 225, 246.)
"We do not review the reasons for the trial court's ruling; if it
is correct on any theory, even one not mentioned by the court, and even if the
court made its ruling for the wrong reason, it will be affirmed." (Coastside
Fishing Club v. California Resources Agency (2008) 158
Cal.App.4th 1183, 1191.)
Relation
Back and Section 474
As a general rule, an
amended complaint that adds a new defendant does not relate back to the date of
filing the original complaint and the statute of limitations is applied as of
the date the amended complaint is filed.
(Woo v. Superior Court (1999)
75 Cal.App.4th 169, 176.) Section
474 creates an exception to this general rule.
identity of the party responsible for his or her damages to name that party in
a fictitious capacity, as a Doe defendant.
(Winding Creek v. McGlashan
(1996) 44 Cal.App.4th 933, 940.)
"If the requirements of section 474 are satisfied, the amended
complaint substituting a new defendant for a fictitious Doe defendant filed
after the statute of limitations has expired is deemed filed as of the date the
original complaint was filed." (
Cal.App.4th at p. 176.)
To take advantage of
section 474, the plaintiff must actually and genuinely be ignorant of the Doe
defendant's identity or of his or her connection to the plaintiff's injuries. (General
Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593-594; see
also Woo, supra, 75
Cal.App.4th at p. 177.) "A
plaintiff may use section 474 whenever he has no actual knowledge of the
defendant; constructive or legal knowledge will not deprive the plaintiff of
the remedy." (Sobeck &
Associates, Inc. v. B&R Investments No. 24 (1989) 215
Cal.App.3d 861, 867.) Where a
lawsuit is filed within the applicable limitations period "and the
plaintiff has complied with section 474 by alleging the existence of unknown
additional defendants, the relevant inquiry when the plaintiff seeks to
substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original
complaint was filed." (
supra, 48 Cal.App.4th at p. 588.)
As appellant accurately
points out, the relation back rule is not the same as the "delayed
discovery" rule. Under the delayed
discovery rule, "the statute of limitations begins to run 'when the plaintiff
suspects or should suspect that [his or] her injury was caused by wrongdoing,
that someone has done something wrong to her.' (Jolly v. Eli Lilly & Co (1988) 44 Cal.3d 1103, 1110. . .
.) Stated otherwise, the limitations
period begins once the plaintiff has notice or information of circumstances
about [his or] her injury and its negligent cause such as would put a
reasonable person on inquiry." (
supra, 48 Cal.App.4th at p. 588.)
When a plaintiff suspects wrongdoing and therefore has an incentive to
sue, the delayed discovery rule provides that the plaintiff "must go find
the facts; [he or] she cannot wait for the facts to find her [or
him]." (Id.)
Thus, the delayed
discovery rule concerns when a cause of action accrues for statute of
limitations purposes. It requires the
plaintiff to use reasonable diligence in discovering the facts necessary to
state his or her cause of action. By
contrast, the relation back rule determines whether a defendant originally sued
in a timely manner, but under a fictitious name, may be identified by his or
her true name after the limitations period has expired. Application of the relation back rule depends
on whether the plaintiff was actually ignorant of the defendant's true identity
on the date the complaint was filed. The
relation back rule does not impose on the plaintiff a duty to be diligent in
discovering the Doe defendant's true identity.
(McOwen v. Grossman (2007) 153
Cal.App.4th 937, 942-943.)
"While reasonable diligence may be material to the determination of
the accrual of a cause of action, reasonable diligence is not germane to
determining whether a Doe amendment was timely." (Id.
at p. 944.)
Here, the trial court
concluded that appellant unreasonably delayed in discovering respondents'
connection to appellant's injuries. Because appellant did not use
"reasonable diligence" in discovering those facts, the trial court
ruled the amendment identifying respondents as Doe defendants was untimely. It acknowledged that section 474 "allows
the plaintiff to delay suing particular persons until the plaintiff has
knowledge of sufficient facts to cause a reasonable person to believe liability
is probable. As stated by the [court in
48 Cal.App.4th 580], the plaintiff is not imposed with a duty to 'go in
search of facts she does not actually have at the time she files her original
pleading.' (Id. at 596.) While that is
true at the time the complaint is filed, as stated above, the plaintiff is
under a duty to at some point conduct a reasonable investigation of all
potential causes of the injury. In this
instance, [appellant] does not allege sufficient facts to justify its failure
to conduct a reasonable and timely investigation."
Here, the trial court's
reasoning erroneously conflates the "relation back" rule with the
"delayed discovery" rule. We
are nevertheless persuaded that the trial court reached the correct result. Section 474 allows a Doe amendment to relate
back to the date of the original complaint only where the plaintiff, at the
time the complaint was filed, actually "lack[ed] knowledge of that
person's connection with the case or with his injuries." (General
Motors Corp. v. Superior Court, supra, 48 Cal.App.4th at p. 594.) As the court noted in General Motors, "Ignorance of the facts giving rise to a cause of action is the 'ignorance' required
by section 474, and the pivotal question is, ' "did plaintiff know
know or believe that she had a cause of action based on those facts?" '
" (Id.)
Here, the facts alleged
in appellant's original complaint (see ante,
p. 2) established that, when the original complaint was filed, appellant
was not "genuinely
ignorant" of respondent's involvement in the transaction and appellant's
resulting damages. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177.) The original complaint alleges that
respondents "represented" Madonna in negotiating with ALV for the
purchase of Tract 1259. Madonna
"and her employees or agents" were required to, but "failed to
disclose" the existence of the pipelines, the 1981 oil spill and the
resulting soil and groundwater contamination on the property. ALV's consent to purchase Tract 1259
"was given as the result of fraud by the seller and her agent." Respondent Linda Wilson is the
"agent" at issue and appellant further alleges that, "Madonna
and Linda Wilson and Wilson & Company failed to disclose . . . "
the pipelines, the spill and the contamination.
These allegations
establish that appellant did not actually "lack[] knowledge of
[respondents'] connection with the case or with [appellant's] injuries[,]"
when appellant filed its original complaint.
(General Motors Corp. v. Superior
Court, supra, 48 Cal.App.4th at p. 594.) "[I]f the identity ignorance requirement
of section 474 is not met, a new defendant may not be added after the statute
of limitations has expired even if the new defendant cannot establish prejudice
resulting from the delay." (
Cal.App.4th at p. 177.) The trial
court properly sustained respondent's demurrer without leave to amend.
Disposition
The judgment (order of
dismissal) is affirmed. Respondents
shall recover their costs on appeal.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Dodie
Harmon, Judge
Superior
Court County of San Luis Obispo
______________________________
Kurt H. Berger, Lisa A.
Hogaraty and Dennis James Balsamo, for Appellant.
Darin L. Wessel; Manning
& Kass. Anne Marie Watson, Mark C.
Carlson; Carlson Law Group. For Respondents
name="_ftn1" title="">[1] All statutory references are to the Code of
Civil Procedure unless otherwise stated.
plaintiff is ignorant of the name of a defendant, he must state that fact in
the complaint, . . . and such defendant may be designated in any
pleading or proceeding by any name, and when his true name is discovered, the
pleading or proceeding must be amended accordingly
. . . ."
