86 Cal.Rptr.2d 645
B125285, B125298, B130137, B130146Court of Appeal of California, Second District, Division One.
Filed June 29, 1999[*] Order For Partial Publication And Order Modifying Opinion July 14, 1999 Certified for Publication July 21, 1999[**]
Appeal from judgments of the Superior Court of Los Angeles County, and petitions for a writ of mandate, Nos. LC042859, LC042858, LC046237, LC046725, Valerie Baker and Fumiko Wasserman, Judges. Judgments affirmed; petitions granted with directions.
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Engstrom, Lipscomb Lack, Walter J. Lack, Gary A. Praglin and Jennifer R. Schrack; Girardi Keese, Thomas V. Girardi, James B. Kropff; Masry Vititoe and Edward L. Masry for Plaintiffs and Appellants and for Real Parties in Interest.
Munger, Tolles Olson, Brad D. Brian, Stephen M. Kristovich and Bernardo Silva for Petitioners and for Defendants and Respondents Boeing North American, Inc., North American Rockwell Corporation, Rockwell Manufacturing Company, Rockwell Standard Corporation, Rocketdyne, Inc., North American Aviation, Inc., Rockwell International Corporation and Atomics International, Inc.
Cooley Godward, Gordon C. Atkinson and Kathleen A. Howard for Petitioners and for Defendants and Respondents Raytheon Company, Hughes Aircraft Company and General Motors Corporation.
No appearance for Respondent.
VOGEL (Miriam A.), J.
The issue in these consolidated cases is whether the plaintiffs have pled facts sufficient to establish delayed discovery of their claims or whether, instead, their complaints were filed too late. We conclude the actions are time barred.
A. The 1997 Actions 1. McKelvey
In October 1997, Barbara A. McKelvey and John Walakavage (collectively “McKelvey”) filed a class action against Boeing North American, Inc., Rockwell International Corporation, Rocketdyne, Inc., Atomics International, Inc., Hughes Aircraft Company and others. In her first amended complaint filed in April 1998, McKelvey alleges that, beginning in the 1940’s and continuing into the 1980’s, Boeing “systematically, methodically and generally” caused the contamination of the land at and around four of its Southern California facilities (the “Rocketdyne facilities”), as a result of which McKelvey was damaged.
She alleges that tests conducted by Boeing during 1991 confirmed the existence of groundwater contamination and that, during the early 1990’s, both the federal government and the State of California issued clean up orders. She alleges that, in 1994, two physicists were killed and a technician was injured in an explosion at one of the Rocketdyne facilities. She alleges that there followed a series of lawsuits, including wrongful death claims by the physicists’ families, a shareholders’ action, and criminal charges alleging the illegal storage and disposal of hazardous waste. Guilty pleas were ultimately entered and a fine of $6.5 million was paid. She does not allege that she wasunaware of any of these events.
McKelvey alleges that Boeing’s “operations . . . were veiled in secrecy. Thousands of residents and workers in the surrounding communities, for
decades, have used and continue to use drinking water, to garden and work the contaminated soil and to eat citrus and vegetables growing in the contaminated soil on their properties. Those who worked at or near the Rocketdyne Facilities inhaled, ingested and were otherwise exposed to the contaminated soil, water and vapors. Further, these residents and workers have used and enjoyed and continue to use and enjoy their neighborhoods, community, homes and properties while unknowingly being exposed to contaminants contained in the soil and groundwater. Not only were they unknowingly ingesting TCE, they were consuming many other hazardous wastes. These hazardous substances were released into the soil and groundwater, causing further exposure. Even though public notices and newspaperarticles were published about [Boeing’s] intentional, recklessand/or negligent conduct, Plaintiffs were and are not aware of theactual and potential harm caused by this conduct.” (Emphasis added.) McKelvey does not say when or how she ultimately learned whatever it was she needed to know to file her lawsuit.
In October 1997, James K. Aurness (and several dozen other named individuals, including the two named plaintiffs in the McKelvey class action) filed a “direct action” against Boeing. In his first amended complaint filed in April 1998, Aurness alleges the same facts alleged by McKelvey. The difference is status, with Aurness alleging that “Plaintiffs reside, live and work in the counties of Los Angeles and Ventura, and, at the time of sustaining the injuries complained of [in the complaint], have been the owners, lessees and/or occupants of certain real property consisting of land, buildings and various types of residences located at or near the Rocketdyne Facilities . . . .”
3. The Demurrers
Boeing demurred to all causes of action alleged in th McKelvey and Aurness first amended complaints, contending the substantive claims were
all barred by limitations. (Code Civ. Proc., §§ 338, subd. (b), 340, subd. (3).) Boeing contended that, on its face, the McKelvey and Aurness pleadings were insufficient to show delayed discovery. In addition, Boeing asked the court to judicially notice 117 documents — copies of newspaper articles, transcripts of radio and television broadcasts, and government “fact sheets” describing and discussing the contamination at the Rocketdyne facilities. Boeing’s position was and is that McKelvey and Aurness knew or, as a matter of law, could (with the exercise of reasonable diligence) have earlier discovered the facts essential to their causes of action. Over the opposition of McKelvey and Aurness, the trial court sustained most of the demurrers without leave to amend.
Plaintiffs’ motions for reconsideration were denied in both cases, as were motions for leave to file second amended complaints. McKelvey and Aurness then voluntarily dismissed their remaining claims (trespass, nuisance, and declaratory and injunctive relief) and final orders of dismissal were entered. McKelvey and Aurness appeal.
B. The 1998 Actions 1. Adams
In September 1998 (that is, after the demurrers had been sustained in the 1997 actions), Cecil Adams and several hundred other named individuals sued Boeing, alleging the same facts alleged in Aurness. There are two additional allegations. First, Adams adds this to the description of the named plaintiffs: “Certain plaintiffs, at the time of sustaining the injuries complained of herein, were employed by [Boeing], or were employed to work on or at the Rocketdyne Facilities to perform various activities within a particular industry directly related to the operations of the Rocketdyne Facilities and subject to the control of [Boeing].” Second, Adams adds the following allegations about delayed discovery:
“Plaintiffs first became aware that they may have sustained injuries as a result of their exposure to contamination arising from the conduct of [Boeing] when the final report of the University of California at Los Angeles’ Rocketdyne Worker Health Study was published. Prior to that time, Plaintiffs did not suspect that the injuries they may have suffered were caused by any particular act of wrongdoing and/or were prevented from doing so by [Boeing’s] conduct [as described elsewhere in the] Complaint. Plaintiffs could not, by the exercise of reasonable diligence, have discovered the wrongful cause of their injuries at an earlier time because of [Boeing’s] misrepresentations. [¶] No plaintiff was ever informed by [Boeing] that the water, air or soil to which they were exposed was contaminated with any toxic substance that might cause a health risk. Any public comment about contamination of the environment caused by the conduct of [Boeing] only assured the public that no health hazard was posed. At no time was there ever a publicly disclosed reason to suspect that the activities of [Boeing] at the [facilities] were wrongful or would cause injuries to Plaintiffs.”
In October 1998, Aaron Davis and three other named individuals filed a complaint against Boeing. This action is indistinguishable from Adams’s action.
3. The Demurrers
Boeing demurred to the Adams and Davis complaints on the same grounds asserted in McKelvey and Aurness, and supported the demurrers with the same requests for judicial notice. In February 1999, Judge Wasserman denied the requests for judicial notice and overruled most of the demurrers, although one was sustained without leave to amend (strict liability) and two with leave to amend (fraudulent concealment and violation of Business and Professions Code section 17200). Boeing (which had just filed its respondents’ briefs in McKelvey and Aurness) then filed a petition for a writ of mandate in which it asked us to compel Judge Wasserman to vacate her orders and sustain the demurrers without leave to amend. We issued an order to show cause so that we could consider all four cases at the same time.
On appeal, McKelvey and Aurness contend (I) they should have been permitted to file their second amended complaints which, they say, are sufficient to invoke the delayed discovery rule; (II) the trial court should not have judicially noticed the “truth” of the facts stated in the documents submitted by Boeing in support of its demurrers; (III) the fraudulent concealment cause of action is sufficient to overcome a demurrer because Boeing is equitably estopped from asserting the bar of limitations as a defense to that claim; (IV) they should have been permitted to amend their claims for strict liability, (V) nuisance, and (VI) trespass; and (VII) their claims alleging violations of section 17200 of the Business and Professions Code were timely filed. Boeing disputes all of these claims, and in its petitions contends the demurrers in Davis and Adams should have been sustained without leave to amend because they are time barred.
Plaintiffs contend the allegations of their complaints are sufficient to invoke the delayed discovery rule. We disagree.
By their reliance on the “discovery rule,” plaintiffs concede by implication that, without it, their claims are barred by one or more statutes of limitations. (Code Civ. Proc., §§ 340, subd. (3), 338, subd. (b).) We begin, therefore, by defining the discovery rule. The common law rule — that an action for personal injury or property damages accrues on the date of injury — applies only as modified by the “discovery rule,” which provides that the accrual date of a cause of action is delayed until the plaintiff is aware of his injury and its negligent cause. The plaintiff is charged with this awareness as of the date he suspects or should suspect that his injury was caused by wrongdoing, that someone has done something wrong to him. Accordingly, the period of limitations will begin to run without regard to whether the plaintiff is aware of the specific facts necessary to establish his claim, provided that he has a “suspicion of wrongdoing,” which he is charged with once he has “notice or information of circumstances to put a reasonable person on inquiry.” (Jolly v. Eli Lilly Co. (1988) 44 Cal.3d 1103, 1109-1111.) 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. The burden is on the plaintiff to show diligence, and conclusory allegations will not withstand demurrer. (CAMSI IV v. Hunter Technology Corp. (1991)230 Cal.App.3d 1525, 1536-1537; Mangini v. Aerojet-General Corp.
(1991) 230 Cal.App.3d 1125, 1150-1151 [this pleading requirement is a procedural safeguard against lengthy litigation on the issue of accrual]; 3 Witkin, Cal. Procedure, supra, Actions, § 602 et seq.)
None of the complaints (not the proposed second amended complaints in McKelvey and Aurness or the third amended complaints filed in Adams and Davis) are sufficient because none of them disclose the time or manner of discovery by any plaintiff. They offer only conclusory allegations of Boeing’s “massive cover-up,” and allegations that plaintiffs discovered
that they “may have sustained injuries” as a result of Boeing’s wrongs “less than one year prior to filing the instant action against [Boeing].” Before that time, they say (without elaboration), they did not suspect any wrongdoing. In short, all they say is that they had no actual knowledge or suspicion about the full nature of their injuries or Boeing’s responsibility for those injuries, and that they did not “believe [they were] entitled to recourse.” They do not allege that they were not aware of facts sufficient to make a reasonably prudent person sufficiently suspicious to investigate further. (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at p. 1150.) In light of the facts they do allege, these omissions are fatal.
Plaintiffs admitted in their first and subsequently amended complaints that “public notices and newspaper articles were published about [Boeing’s] intentional, reckless and/or negligent conduct.” In the face of that admission, plaintiffs’ conclusory assertion that they “were and are not [sic] aware of the actual and potential harm caused by [Boeing’s] conduct” is patently inadequate. Without resort to the matters submitted to the court for judicial notice, the bottom line is that plaintiffs’ amended (and proposed amended) complaints acknowledge the publicity surrounding Boeing’s operation of the Rocketdyne facilities, yet nevertheless fail to explain how they managed to ignore those “newspaper articles.” Other than a general reference to an entire year and an ambiguous reference to an undated report (“the final report of the University of California at Los Angeles’ Rocketdyne Worker Health Study”), they have not alleged facts about the time or manner of discovery; they have not alleged facts showing their inability to have made earlier discovery despite reasonable diligence. (CAMSI IV v. Hunter Technology Corp., supra, 230 Cal.App.3d at pp. 1536-1537; Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at pp. 1150-1151.) They do not allege thatthey did not read, hear or see the articles and broadcasts theyadmit were published.
Plaintiffs have had four bites at the apple, and they do not suggest on appeal or in opposition to Boeing’s writ petitions that there are additional facts they could plead to satisfy the discovery rule. Instead, they assert an abstract right to amend yet again, and they demand the opportunity to take a fifth bite. They have no such right. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [it is not up to the court to figure out how a complaint can be amended; rather, the burden is on the plaintiff to show the manner in which he can amend, and how that amendment will cure the defect]; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Careau Co.
v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
On their appeal, plaintiffs contend the trial court (Judge Baker) improperly took judicial notice of the “truth” of “a disputed issue of fact — the time and manner each Plaintiff discovered his . . . cause of action.” In their petitions, Boeing contends the trial court (Judge Wasserman) improperly denied Boeing’s request for judicial notice. Although the issue is moot in light of our conclusion In Part I, ante, we do note for the record that, assuming the propriety of judicial notice of newspaper articles, the truth of the facts reported is irrelevant. The 117 documents (newspaper articles, transcripts of radio and television broadcasts, and “fact sheets” distributed by the state and federal governments for the benefit of residents and other interested parties) were offered to show the extent of the widespread publicity about the problems at the Rocketdyne facilities. They were offered to show that, at a time outside the statute of limitations, plaintiffs had notice of or information of circumstances sufficient to put a reasonable person on inquiry. They were offered to show that anyone living in Los Angeles County, and certainly anyone living or working in the vicinity of the Rocketdyne facilities, would have read or heard about the contamination at and around the Rocketdyne facilities. The accuracy of the reporting is irrelevant.
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In McKelvey and Aurness (Nos. B125285 and B125298), the judgments are affirmed. In Adams and Davis (Nos. B130137 and B130146), the petitions are granted, and peremptory writs shall issue commanding the trial court (1) to vacate its orders on the demurrers and (2) to issue new orders sustaining the demurrers without leave to amend. Boeing is entitled to its costs of both the appeal and of the writ proceedings.
Petition for rehearing was denied July 21, 1999, and the following opinion was then rendered.
By a petition for rehearing, Plaintiffs contend that, notwithstanding our view of the current pleadings, we should have remanded all four cases to the trial court to give Plaintiffs an opportunity to amend their complaints. We disagree. Although it is an abuse of discretion to sustain demurrers without leave to amend when there is a “reasonable possibility” that the plaintiffs can amend their complaints to cure the defects, the burden is on Plaintiffs to show how the complaints can be amended and how such amendments will change the legal effect of their pleadings.
(Careau Co. v. Security Pacific Business Credit, Inc. (1990)222 Cal.App.3d 1371, 1386, 1388.) Notwithstanding that such a showing may be made for the first time on appeal (id. at p. 1386), Plaintiffs did not do so in this case. Assuming that such a showing could be made for the first time in a petition for rehearing, Plaintiffs have not done so with regard to any of these cases. Accordingly, they have failed to establish that there is a reasonable possibility that an amendment would change the legal effect of their pleadings.
The petition for rehearing is denied.
Although we sometimes refer to the defendants other than Boeing by name, our references to Boeing are intended to include all of the defendants. Raytheon Company, Hughes Aircraft Company and General Motors Corporation have joined in Boeing’s briefs.