Opinion
A141603 A142551 A142843
08-01-2017
LORIE WILLIAMS, Plaintiffs and Appellants, v. CORNISH & CAREY COMMERCIAL Defendants and Appellants; CONSTITUTION DRIVE INVESTORS, INC. , Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV525052)
Plaintiff Lorie Williams, with Lorie Williams dba Closet Stuff (jointly, Williams), appeals from a judgment after the trial court sustained demurrers to two causes of action in her amended complaint and struck the remaining four causes of action. We affirm. The court correctly found that Williams's first cause of action, for equitable set-aside of judgment, failed to allege extrinsic fraud, and her remaining causes of action were barred by the statute of limitations.
BACKGROUND
I. Williams's First Lawsuit
Beginning in 2002 Williams leased commercial space from Constitution Drive Investors, Inc. (CDI). In 2008 she sued CDI for breach of lease, negligence, and fraud based on allegations that the doors and windows leaked and CDI induced her to extend her lease by falsely promising repairs. The court granted nonsuit as to any fraud and a jury returned a verdict in favor of CDI on the remaining claims.
Williams moved for new trial and judgment notwithstanding the verdict. The court denied both motions. She filed an appeal, but it was dismissed after she failed to file an opening brief. She also filed a petition for a writ of error coram vobis, which this court summarily denied in March 2011.
In December 2011 Williams filed an ex parte application to reopen discovery and a notice of intent to move to vacate the judgment and for new trial under Code of Civil Procedure section 473. The trial court denied the application and Williams did nothing further in that lawsuit.
II. The Current Action
Almost two years later, on November 4, 2013, Williams filed this lawsuit against CDI, former CDI president Dr. Ed Barthold, real estate brokers Douglas Finney and Cornish & Carey Commercial (jointly, Cornish & Carey), and property manager Ventana Property Services (Ventana). The complaint alleged causes of action for equitable set-aside of judgment (first cause of action), breach of fiduciary duty (second cause of action), unfair competition (third cause of action), aiding and abetting unfair competition (fourth cause of action), and civil RICO violations (fifth and sixth causes of action).
18 U.S.C.A Pt. I, Ch. 96 (Racketeer Influenced and Corrupt Organizations Act.)
In the first cause of action, Williams asserted the 2010 verdict should be set aside because it was procured by extrinsic fraud "including, but not limited to: (1) solicitation of perjury, subornation of perjury, obstruction of justice, withholding of responsive documents, and deceit and collusion toward this court and the parties by CDI's attorneys; and (2) perjury and the creation of a false document by one or more of CDI's witnesses, some of whom owed a fiduciary duty to Plaintiffs." As instances of extrinsic fraud, Williams alleged CDI's counsel instructed plaintiff's witness Jose Mendoza to avoid testifying by pretending his English was inadequate; instructed Ventana to withhold subpoenaed documents; instructed Finney to lie on the stand; and knowingly permitted Finney and Barthold to give false testimony. The complaint also alleged that in August 2006 Finney and Barthold conspired to forge a letter ostensibly from a roofing company (the "Reed letter") reporting that Williams's roof was inspected and found to be in good condition, and that Finney testified falsely about it at trial. The remaining five causes of action were premised on these same general facts, with additional allegations that the defendants offered the Constitution Drive premises for rent without disclosing toxic contamination and unpermitted improvements. Williams asked the court to set aside the original judgment and order a new trial, order restitution of rent, and award trebled compensatory and punitive damages.
On December 18, 2013, Cornish & Carey demurred to the second, fourth, fifth and sixth causes of action, the only claims alleged against it. CDI, Barthold and Ventana joined in Cornish & Carey's demurrer and on January 31, 2014, CDI demurred separately to the first and third causes of action.
On February 19, 2014, while CDI's demurrer was pending, the court sustained Cornish & Carey's demurrer without leave to amend on statute of limitations and collateral estoppel grounds. It explained its ruling based on the statute of limitations. "This matter arises from the underlying facts alleged in previous litigation filed by [Williams] which went to jury trial in early 2010. After the trial court granted non-suit to the third cause of action for fraud, the jury returned a verdict against Lorie Williams [in] the previous litigation. Final judgment was entered on February 23, 2010. Plaintiff filed this action November 4, 2013. Both cases stem from conduct alleged to have occurred in 2006. [¶] The Statute of Limitation has expired on the 2nd, 4th, 5th, and 6th causes of action of the current complaint. The applicable time limitation is four years from either the injury or when Plaintiff discovered/should have reasonably discovered said injury. Plaintiff has not alleged sufficient facts to support the application of the delayed discovery rule."
The court also found the same causes of action were barred by collateral estoppel. "The previous action filed against Constitution Drive Investors claimed damages arising out of alleged leaks in the windows and the roof at the 160 Building, overcharging of rent, negligence of the lessor in properly maintaining the property and the lessor's fraud in representing to the plaintiff that the roofs would be repaired when the lease was renewed. No additional damage has been alleged, only new evidence. The Defendants in this present action stand in the same position as CDI in the prior litigation, which resulted in an unfavorable verdict against Plaintiff. 'New evidence' does not normally bar the application of collateral estoppel."
This ruling disposed of all of the causes of action alleged against Ventana, Barthold and Cornish & Carey. Judgment was entered for Ventana on April 8, for Barthold on May 19, 2014, and for Cornish and Carey on June 10.
Rather than oppose CDI's demurrers to the first and third causes of action, on April 3, 2014, Williams amended her complaint against all defendants. The first amended complaint restated all six of her original causes of action and added factual allegations primarily surrounding her claim of extrinsic fraud. CDI again demurred to the first and third causes of action and moved to strike all remaining causes of action on the ground that demurrers to those claims had been sustained without leave to amend.
On June 25, 2014, the court granted the motion to strike. "The court previously sustained Defendants' demurrer to the causes of action for Breach of Fiduciary Duty, Aiding and Abetting Unfair Competition, and violation of 18 U.S.C. 1962(c) & (d), without leave to amend. Remarkably, Plaintiff has disregarded that order and re-filed those allegations in the First Amended Complaint [FAC], as the 2nd, 4th, 5th and 6th causes of action. Such conduct subjects counsel to potential sanctions under CCP 128.7. [¶] . . . [¶] By including the very same causes of action in the FAC which were the subject of the previous demurrer in which the Court sustained the objections thereto without leave to amend, Plaintiff and her counsel seem to have purposefully turned a blind eye to the rule of law. Such conduct cannot go unnoticed."
The court set a hearing on an order to show cause regarding contempt and sanctions. Those proceedings are not involved on this appeal.
The court also sustained CDI's demurrer to the two remaining causes of action. It found Williams's allegations of the extrinsic fraud required for the first cause of action for equitable set-aside were "squarely in the camp of 'intrinsic fraud' and as such are not subject to the equitable relief she seeks. Plaintiff was a full participant in the previous trial and bases this cause of action on the premise that during that previous trial her adversaries fabricated and/or hid evidence. However, perjury committed during trial is intrinsic and not a basis for relief. Los Angeles Airways Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1. When a claim of fraud goes to an issue involving the merits of the prior proceeding which the moving party should have guarded against at that time, or if the moving party was guilty of negligence in failing to prevent the fraud or mistake or in contributing thereto, or failed to take advantage of liberal discovery policies to fully investigate his or her claim, any fraud is intrinsic fraud. In Re: Marriage of Stevenot (1954) 154 Cal.App.3d 1051. The appropriate avenue for addressing claims raised in the FAC exists, and in fact [has] been exhausted by Plaintiff. There is no factual support for her claim of extrinsic fraud and as such the demurrer to the First Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND. This is that rare case in which a litigant is not being given further leave to amend, as the history of this litigation as well as the previous matter which went to jury verdict demonstrates that there is no factual basis on which Plaintiff can allege facts supporting a basis for equitable set-aside of the jury's verdict."
The demurrer to the third cause of action, for unfair competition, was also sustained, but the court granted Williams leave to amend to "allege facts showing the time and manner of [her] cause of action and the inability to have made earlier discovery despite reasonable diligence. . . . The defect in Plaintiff's 3rd cause of action is that it alleges numerous actions on the part of CDI which support the claim for Unfair Competition, but only one of those, to wit: the late discovery of the contaminants on/under the property, would seem to trigger the application of the delayed discovery rule. Even toward that end, however, Plaintiff has not sufficiently set forth facts satisfying the second prong of McKelvey v. Boeing, namely an inability to have earlier discovered the information despite reasonable diligence. It appears from the pleadings that the facts in support of this claim pertaining to the condition of the roof were known to Plaintiff . . . back in 2008."
Williams did not file a further amended complaint, so judgment was entered for CDI. Williams appeals from the various judgments and Cornish & Carey filed a cross-appeal. This court consolidated the appeals for briefing, argument and decision.
DISCUSSION
I. Standard of Review
We review an order sustaining a demurrer de novo to determine whether the complaint states facts sufficient to constitute a cause of action. (Bower v. AT & T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1552; Stanton Road Associates v. Pacific Employers Ins. Co. (1995) 36 Cal.App.4th 333, 341 (Stanton Road ).) We construe the complaint "liberally . . . with a view to substantial justice between the parties" (Code Civ. Proc., § 452) and treat it " ' "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.' " (Stanton Road, supra, 36 Cal.App.4th at p. 340; see Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 296-297.) When the court sustains a demurrer 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.' [Citations.]" (Stanton Road, supra, at p. 341.)
II. First Cause of Action for Equitable Set-Aside
Williams asserts her allegations that CDI's attorneys advised witness Mendoza to pretend he did not speak English and incited witness Perez to flee to Mexico to avoid testifying at trial constitute "extrinsic fraud" that warrants setting aside the 2010 jury verdict and judgment. She acknowledges California law does not support her position, but urges us to consider extrinsic fraud those situations "where an opposing lawyer has caused witnesses to lie or flee a trial." As we understand her argument, she maintains that participation by attorneys in fraud on the court should warrant the setting aside of a judgment without regard to whether the alleged fraud is labelled "intrinsic" or "extrinsic." But that is not California law, and this case presents no compelling reason to disturb settled limitations on the ability to equitably set aside a prior judgment.
In her reply brief, Williams also argues that allegations CDI's counsel told Ventana to withhold discovery and knowingly allowed the Reed letter to be admitted at trial support this cause of action for equitable set-aside. She did not raise these arguments in her opening brief, so they are forfeited. No matter, these allegations would not change our analysis or conclusion.
Those limitations are described in Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1, 7-8.) "The extrinsic/intrinsic fraud rule is a doctrine developed in courts of equity governing the basis for successful collateral attack on a final judgment by way of an independent proceeding. The rule is that fraud internal to the adversary proceeding, such as perjury committed during trial or error or mistake during the trial, is intrinsic and is not a basis for relief; but fraud that prevented the trial of a claim or prevented the defrauded party from getting into court at all, is extrinsic to the proceeding and is a basis for relief. Obviously, where there has been little or no judicial time invested in trial of a cause or an issue, the factor of judicial economy which otherwise weighs in favor of finality is less strong, and the equitable considerations of fair hearing and of penalizing fraud weigh more compellingly." (Id. at p. 7.) "[T]he test of extrinsic fraud is fraud that prevented a fair adversary hearing by deliberately keeping a party ignorant of the action or otherwise fraudulently preventing his claim or defense. Normally, if the party was aware of the proceeding, the fraud is intrinsic, but if the fraud totally precluded his raising a claim or defense it will be grounds for relief. . . . [¶] The Restatement of Judgments states the orthodox position that only where a party has been prevented from having a reasonably fair trial will equity relieve for fraud. . . . Internal misconduct, such as perjury, is not normally grounds for relief." (Id. at pp. 7-8, citations omitted.)
This distinction between extrinsic and intrinsic fraud balances "the important public policy that litigants be afforded a fair adversary proceeding in which fully to present their case" and "the equally important public policy that there must be an end to litigation which underlies the doctrine of finality of judgments." (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 632 (Kachig).) " 'That a former judgment or decree may be set aside, and annulled for some frauds there can be no question; but it must be a fraud extrinsic or collateral to the questions examined and determined in the action. And we think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. The reason of this rule is, that there must be an end of litigation; and when parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive, unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy. What, then, is an extrinsic or collateral fraud, within the meaning of this rule? Among the instances given in the books are such as these: Keeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit; or where an attorney fraudulently pretends to represent a party, and connives at his defeat, or, being regularly employed, corruptly sells out his client's interest. [Citation.]
'In all such instances the unsuccessful party is really prevented, by the fraudulent contrivance of his adversary, from having a trial; but when he has a trial, he must be prepared to meet and expose perjury then and there. He knows that a false claim or defense can be supported in no other way; that the very object of the trial is, if possible, to ascertain the truth from the conflict of the evidence, and that, necessarily, the truth or falsity of the testimony must be determined in deciding the issue. The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy. The wrong in such case, is of course a most grievous one, and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is, that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for if this could be done once, it could be done again and again ad infinitum.' " (Kachig, supra, 22 Cal.app.3d at p. 633.) Accordingly, proffering false evidence is considered intrinsic, not extrinsic, fraud. (Id. at p. 634.) "Likewise, in a litigated case the concealment or suppression of material evidence is held to constitute intrinsic fraud." (Ibid.)
Under this settled law, Williams' allegations that CDI's counsel suborned perjury and encouraged a witnesses to avoid testifying at trial do not support equitable set-aside of the 2010 judgment. That action proceeded through a full jury trial. Williams was not prevented from participating in the trial. When Mendoza told the court his English was too poor to testify she could have objected or requested a translator, but she did not. When Perez disclosed his intention to go to Mexico she could have made efforts to preserve his testimony, compel his appearance or continue the trial, but she did not. It is perhaps unfortunate that Williams did not manage to explore the evidence as fully as she now wishes she had, but her allegations do not show she was deprived of the opportunity for "making the truth appear." (Kachig, supra, 22 Cal.App.3d at p. 633.) The trial court correctly found her allegations were "squarely in the camp of 'intrinsic fraud' and as such are not subject to the equitable relief she seeks."
Williams urge us to depart from California law to apply a rule from federal and South Carolina precedent and hold that "conduct that might otherwise be considered intrinsic fraud becomes extrinsic fraud when perpetrated by an attorney." (See Hazel-Atlas Glass Co. v. Hartford-Empire Co. (1944) 322 U.S. 238. 244-246 [vacating patent infringement judgment because patent holder's attorney wrote fraudulent article introduced as evidence of patent validity]; Chewning v. Ford Motor Co. (S.C. 2003) 579 S.E.2d 605, 610-611 [attorney's subornation of perjury and concealment of documents constituted extrinsic fraud].) We decline. " 'It is . . . a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy . . . "is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law." ' [Citation.] Accordingly, a party urging us to overrule a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law." (Trope v. Katz (1995) 11 Cal.4th 274, 288.)
Williams presents no compelling reason to depart from our established precedent. Her suggestion that People v. Malveaux (1996) 50 Cal.App.4th 1425 (Malveaux) erased California's distinction between intrinsic and extrinsic fraud in cases alleging fraud on the court is unpersuasive. Malveaux addressed a long-established rule that the prohibition against double jeopardy does not bar retrial where a criminal defendant perpetrates fraud on the court to obtain a conviction on a lesser charge or a charge he or she knew to be false. (Id. at p. 1441.) Mr. Malveaux, an adult, was initially tried as a juvenile after misrepresenting his age to the court. He asserted the "fraud on the court" exception to double jeopardy did not apply because his fraud was intrinsic, not extrinsic. In that specific context and for that specific purpose, the court refused to draw the proposed distinction. (Id. at pp. 1441, fn. 9 & 1443, fn. 11.) But this case has nothing to do with enforcing our state's criminal law of double jeopardy. Williams's much broader proposition that any alleged attorney misconduct that makes it harder for the opposing party to present his or her case is grounds to set aside a verdict would radically shift the balance described in Kachig toward potentially endless litigation. Much mischief would follow. (See Kachig, supra, 22 Cal.3d at pp. 633-634.)
Nor do other California authorities Williams cites support her equation of attorney misconduct with extrinsic fraud in the present context. Vartanian v. Croll (1953) 117 Cal.App.2d 639, Tomb v. Tomb (1932) 120 Cal.App. 438, and McGuinness v. Superior Court (1925) 196 Cal. 222 arose in the context of Code of Civil Procedure section 473 motions, which presents a different statutory balance between policies supporting the full and fair litigation of disputes and considerations of finality. In her other cited cases the fraud effectively shut the courthouse doors on the party challenging the judgment. In In re Marriage of Brennan (1981) 124 Cal.App.3d 598, the husband's attorney convinced the wife not to litigate the couple's marital dissolution. In Young v. Young Holdings Corp. (1938) 27 Cal.App.2d 129, 145-146, the plaintiffs "were never really represented" in the quiet title action through which the defendants cheated them of their properties because their attorneys were selected by one of the conspirators in the fraudulent scheme. (Ibid.) Here Williams was represented by counsel and litigated her underlying claims in the prior lawsuit through a jury verdict to seeming finality. The court properly concluded her allegations failed to state a cause of action for equitable set-aside based on extrinsic fraud.
III. Third Cause of Action for Unfair Competition
Williams argues the court erred when it concluded her unfair competition claim against CDI was barred by the statute of limitations. (See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192.) Here, too, we disagree.
Background
The third cause of action alleged, in essence, that CDI engaged in unfair competition since at least 1994 by renting the premises without disclosing the condition of the roof or the presence of unpermitted improvements and toxic contamination. As a result, Williams alleged, the premises had a true market rent of zero value and she was entitled to disgorgement of all the rent she paid during her lease term.
CDI argued the claim was time-barred because Williams did not file suit until November 2013, more than five years after her lease ended, and "cannot argue that discovery or other forms of equitable tolling should apply here because Plaintiffs clearly had knowledge of the basis for the claim, even before the lease expired. Plaintiffs filed the original lawsuit on March 28, 2008, alleging fraud. [Citation.] Plaintiffs therefore had already alleged the facts necessary to an unfair competition claim; the claim had accrued at that point at the latest—a point outside of the four-year limitations period."
The court agreed. "The defect in Plaintiff's 3rd cause of action is that it alleges numerous actions on the part of CDI which support the claim for Unfair Competition, but only one of those, to wit: the late discovery of the contaminants on/under the property, would seem to trigger the application of the delayed discovery rule. Even towards that end, however, Plaintiff has not sufficiently set forth facts satisfying the second prong of McKelvey v. Boeing, namely an inability to have earlier discovered the information despite reasonable diligence."
McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151 (McKelvey), superseded on other grounds as noted in Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 637 fn. 8.
Analysis
The question is whether the third cause of action for unfair competition sufficiently alleged facts showing delayed discovery. "The 'discovery rule' assumes that all conditions of accrual of the action—including harm—exist, but nevertheless postpones commencement of the limitation period until 'the plaintiff discovers or should have discovered all facts essential to his cause of action [citations],' which is to say 'when "plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence . . . ." [Citations.]' [Citations.] The rule is 'based on the notion that statutes of limitations are intended to run against those who fail to exercise reasonable care in the protection and enforcement of their rights; therefore, those statutes should not be interpreted so as to bar a victim of wrongful conduct from asserting a cause of action before he could reasonably be expected to discover its existence. [Citations.]' [Citation.] The rule has been applied in tort actions of various kinds, including cases which involve nonobvious (or latent) injuries to real property." (Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1536, italics omitted (Camsi IV).)
"A plaintiff whose complaint shows on its face that his or her claim would be barred by the applicable orthodox statute of limitations, and who intends to rely on the discovery rule to toll the orthodox limitation period, 'must specifically plead facts which show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. [Citations.] Mere conclusory assertions that delay in discovery was reasonable are insufficient and will not enable the complaint to withstand general demurrer.' " (Camsi IV, supra, 230 Cal.App.3d at pp. 1536-1537.)
Williams's factual allegations failed to show her inability to have earlier discovered the alleged deception about the roof defects. "The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have ' " 'information of circumstances to put [them] on inquiry. . . ' " ' " (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807-808, italics added.) Williams had consistently alleged the roof leaked severely "in dozens of places" since she moved in in 2003. While she further alleged, in essence, that she was fooled by the fraudulent Reed letter and did not suspect the forgery until 2010, her allegations show she had cause to doubt the letter's veracity when she received it in August 2006. The amended complaint alleged the letter described "a supposed conversation between Reed and a 'lady' below in the 'woodshop' regarding a leak and evidence of damage in Closet Stuff's facility," but that "[n]o such conversation ever took place. The only 'lady' who worked at the premises was Lorie Williams, who was off site the entire day of August 4, 2006. Other Closet stuff employees who were there on that day deny a visit by Reed or Finney or anyone else regarding the roof." Moreover, Williams claimed the roof had been repaired at least twelve times by 2006, but the letter said the inspector observed only one area of repair. These discrepancies at a minimum put Williams on inquiry notice as to the letter's bona fides.
Williams protests that whether she was on inquiry notice presents a question of fact that cannot be decided on demurrer. She is correct that in some cases the reasonableness of delayed discovery requires resolution by a trier of fact (see, e.g., Broberg v. Guardian Life Ins. Co. of Am. (2009) 171 Cal.App.4th 912, 921), but this is not one of them. "Arguments that discovery-rule issues are necessarily factual and cannot be resolved on demurrer have been rejected." (Camsi IV, supra, 230 Cal.App.3d at p. 1537.) "[I]t is the complainant's burden to plead not merely the ultimate fact of reasonable delay in discovery, but specific facts which allow a legitimate inference that the delay was reasonable. [Citations.] The demurrer presents an issue at law as to the sufficiency of the alleged facts set out in the pleading. [Citation.] It follows that whether a complaint states sufficient facts to avoid a facial defect is a question of law which may be resolved upon demurrer." (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 299-300.) Williams failed to plead specific facts supporting a legitimate inference of reasonably delayed discovery, so her allegations were insufficient as a matter of law to withstand demurrer.
Nor do they show that she could not with reasonable diligence have timely discovered that the value of her rental had also (allegedly) been diminished by toxic contaminants or unpermitted improvements. (See Camsi IV, supra, 230 Cal.App.3d at pp. 1536-1537.) " 'The plaintiff is charged with this awareness [of injury and cause] 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.' " (McKelvey, supra, 74 Cal.App.4th at p. 160.) By 2008 Williams had sued CDI for fraud based on alleged misrepresentations about the roof and for negligence and breach of lease based on leaking walls, leaking windows, a defective HVAC system, and improper utility charges. No later than 2008 she therefore had a "suspicion of wrongdoing," and was charged with conducting a reasonable inquiry into the condition of her leased premises. Her amended complaint fails to set forth facts to show why she could not have discovered any alleged permitting and contamination problems within the four-year limitation period, so the court properly found those claims were also barred by the statute of limitations.
IV. The Second, Fourth, Fifth and Sixth Causes of Action
We turn now to the order sustaining defendants' demurrers to the second, fourth, fifth and sixth causes of action in the original complaint. Although the trial court sustained demurrers to those causes of action without leave to amend on February 19, 2014, Williams realleged them in her amended complaint filed on April 3, 2014. That was in direct violation of the February 19 order, so the court ordered them stricken.
Williams does not challenge that order, but seems rather to argue that the February 19 order sustaining the demurrers to those causes of action in the original complaint was erroneous. We disagree. Assuming arguendo that Williams did not forfeit her appeal from the February 19 order by realleging all six original causes of action in her amended complaint (see County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312); Singhania v. Uttarwar (2006) 136 Cal.App.4th 416, 425; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884; Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 384), our preceding analysis of her unfair competition claim compels the conclusion that, as the trial court found, her claims for breach of fiduciary duty (second cause of action), aiding and abetting unfair competition (fourth cause of action), and civil RICO violations (fifth and sixth causes of action) were likewise barred by the statute of limitations. Each cause of action was based on the same constellation of factual allegations underlying the unfair competition claim, e.g., the roof leaks, the Reed letter, toxic contamination, and unpermitted improvements. As to each, as we have explained, Williams failed to plead facts to support a legitimate inference of reasonably delayed discovery. (Infra, at pp. 14-15.) Accordingly, demurrers were properly sustained as to those causes of action without leave to amend.
Arguably left for review is the propriety of the court's subsequent order striking those causes of action from the amended complaint on the ground that it had sustained defendants' demurrers to the same causes of action in the original complaint without leave to amend. That ruling was well within the court's statutory and inherent powers to compel compliance with its orders. (See Code Civ. Proc., §128; Stoltenberg v. Ampton Investments (2013) 215 Cal.App.4th 1225, 1230.)
DISPOSITION
The judgments are affirmed. The cross appeal is dismissed as moot. Judicial notice of Exhibits 48 and 49 of respondents' augmented appendix is granted. (Evid. Code, § 452, subd. (a).) Respondents are awarded costs on appeal.
/s/_________
Siggins, J.
We concur:
/s/_________
Pollak, Acting P.J.
/s/_________
Jenkins, J.