*1 29, Dist., B125285. One. June Second Div. [No. 1999.*] al., BARBARA A. McKELVEY et Plaintiffs and v. Appellants, AMERICAN, INC., al., BOEING NORTH et Defendants and Respondents. 29, Dist., One. B125298. Second Div. June [No. 1999.] al., K. et JAMES AURNESS Plaintiffs and v. Appellants, AMERICAN, INC., al., BOEING NORTH et Defendants Respondents. Dist., 29, B130137. One. June Second Div. [No. 1999.] AMERICAN, al., Petitioners, INC., BOEING NORTH et v. COUNTY,

THE SUPERIOR COURT OF LOS ANGELES Respondent; al., CECIL et ADAMS Real Parties in Interest. 29, Dist., B130146. Second One. June

[No. Div. 1999.] AMERICAN, INC., al., Petitioners, BOEING NORTH et v. COUNTY,

THE SUPERIOR COURT OF LOS ANGELES Respondent; al., AARON DAVIS et Real Parties Interest.

[Opinion certified for partial publication.†] *Reporter’s opinion previously Cal.App.4th being Note: This is published 601. It republished opening opinion previous paragraph because the was omitted from the due publisher’s version to the error. received, requests having publication appearing been and it on reflection †Two case, partial publication appropriate opinion hereby this our filed June in, IV, partial publication, except parts certified for V and VI. *4 Counsel Lack, Lack, A. Jennifer R. & Walter J. Gary Praglin,

Engstrom, Lipscomb Schrack; Keese, Girardi, B. &Masry & Thomas V. James Kropff; Girardi and for Real and Edward L. for Plaintiffs and Masry Appellants Vititoe Parties in Interest. Kristovich, Olson, Brian, & Brad M. Bernardo Tolles D.

Munger, Stephen North Petitioners and for Defendants and Respondents Silva for American, Inc., Rockwell Manufac North American Rockwell Corporation, Inc., North Rocketdyne, Rockwell Standard turing Corporation, Company, Aviation, Inc., American and Atomics Rockwell International Corporation International, Inc. Godward, A. for Petition- C. and Kathleen Howard Gordon Atkinson

Cooley Air- Hughes Raytheon ers and Defendants and Respondents Company, Motors craft General Corporation. Company No appearance Respondent.

Opinion (Miriam A.), J . VOGEL The issue in these consolidated cases is whether facts of their delayed sufficient establish pled discovery whether, instead, filed too late. We conclude the actions are time barred.

A. The 1997 Actions 1. McKelvey 1997, In (collec- October Barbara A. and John Walakavage American, Inc., tively McKelvey) filed class action against Boeing North Inc., Rockwell International Atomics Interna- Corporation, Rocketdyne, tional, Inc., Hughes Aircraft others.1 her first amended Company that, filed in in April McKelvey alleges beginning 1980’s, 1940’s and into continuing Boeing “systematically, methodically caused the generally” contamination of the land at and around four of its (the Southern facilities), California facilities as a result which McKelvey was She damaged.2 tests conducted alleges by Boeing during that, 1991 confirmed the existence of groundwater contamination and during 1990’s, the early both the federal State of California government issued clean orders. She up alleges two physicists were killed and a technician was one injured an explosion facilities. She lawsuits, that there alleges followed a series of including *5 families, action, death wrongful by physicists’ a shareholders’ and criminal charges alleging illegal storage and of hazardous waste. disposal Guilty pleas were and ultimately $6.5 entered a fine of million was She paid. does not allege that she was unaware these events. any of of

McKelvey alleges Boeing’s . . . were “operations veiled in secrecy. communities, Thousands of residents workers in the surrounding regard plaintiffs: precise, 1With To be original the second-named in the complaint Stacy Zellinger-Thykeson, Walakavage. Jo who replaced was later with On point, another we note that some the plaintiffs represented by guardians are minors ad rights litem. any they may by Since no issues are raised about minority, have reason of their Proc., express any (See we do not opinion views about effect of this on them. Code Civ. 352.) regard Although § With to the we sometimes refer to the defendants other defendants: name, Boeing by Boeing than our references are intended to of the defendants. include all Raytheon Company, Hughes joined Company Corporation Aircraft and General Motors have in briefs. (1) 2The are Rocketdyne’s Laboratory Valley, facilities Santa Susana Field located in Simi (2) Park, (3) facility facility the Atomics in Canoga International Atomics International De Valley, Hughes facility Soto Avenue in the San Freehand Aircraft on Fallbrook Valley. Avenue the San Fernando water, decades, use and work have used and continue to drinking garden in the and to eat citrus and vegetables growing contaminated soil contaminated or on their Those who worked at near soil properties. inhaled, to the and were otherwise exposed Facilities ingested soil, Further, residents and contaminated water and these workers vapors. used and continue to use and enjoy neighborhoods, and enjoyed homes and while unknowingly being exposed community, properties groundwater. only contaminants contained the soil Not TCE, other hazardous many unknowingly ingesting consuming were released into the soil and ground- wastes. These hazardous substances water, notices and though public newspaper further Even causing exposure. intentional, negli- about reckless and/or published [Boeing’s] articles were conduct, and potential Plaintiffs were and are not aware of actual gent (Italics added.) caused this does not when McKelvey say harm conduct.” she to know file her she learned whatever it was needed ultimately how lawsuit.3

2. Aurness (and K. several dozen other named In October James Aurness individuals, in the class ac- McKelvey two named including tion) his filed a “direct action” first amended against Boeing. the same facts alleged by McKelvey.

filed in Aurness alleges April reside, status, with Aurness that “Plaintiffs live alleging The difference is Ventura, and, at the time of of Los Angeles work in the counties have been the sustaining complaint], injuries complained [in owners, land, consisting real lessees and/or of certain occupants property located at or near the and various residences buildings types ,”4. Facilities . .

3. The Demurrers in the all causes of action alleged demurred to claims were first amended substantive contending Aurness complaints, *6 by McKelvey comprised persons of “all who have purportedly represented 3The class (as Rocketdyne the those boundaries the boundaries of Facilities” worked resided within [Boeing’s] as of by complaint) damaged “who have been a result are defined the and Rocketdyne of the Facilities reckless conduct and contamination negligent, intentional and/or during surrounding period and soil the from the resulting of the water and contamination alleges McKelvey 13 causes of action: persons, of these present.” to the On behalf 1940’s se, nuisance, nuisance, negligence per liability, trespass, public private negligence, strict concealment, activity, intentional infliction of liability fraudulent absolute for ultrahazardous distress, evidence, of “negligent evidence of destruction spoliation emotional intentional declaratory litigation,” injunctive relief and relief. civil prospective needed assigned and to the same trial 4McKelvey and Aurness were deemed related actions were Baker). (Hon. judge Valerie Proc., (Code (b), all barred limitations. subd. by Civ. subd. §§ face, McKelvey Aumess plead (3).)5 on and Boeing contended its the addition, were to ings insufficient show asked delayed discovery. Boeing articles, the court to notice 117 judicially of documents—copies newspaper broadcasts, of and radio television and “fact sheets” transcripts government and the at describing contamination the facilities. discussing Rocketdyne or, was and is that and a Aurness knew as position McKelvey law, (with matter of could the exercise of diligence) reasonable earlier discovered the facts of essential their causes action. Over the opposition Aurness, of and McKelvey trial court most of the demurrers sustained leave to without amend.6 cases,

Plaintiffs’ motions for reconsideration were denied in both as were motions for to file leave second amended and complaints.7 McKelvey Aur- nuisance, ness then voluntarily dismissed their claims remaining (trespass, relief) and declaratory and and final of injunctive orders dismissal were entered. and Aumess McKelvey appeal.8 5The McKelvey demurrer in alleged also asserts that the there fail as a matter of law or, alternatively, to state a class McKelvey action that proceedings ought all in to be on abated ground (Aumess) that pending. McKelvey another action was in The demurrers both action,

Aumess asserted that allege all counts failed to facts a sufficient to state cause of public nuisance alleged claims failed because had requisite not special injury, and that the declaratory injunctive claims for really relief were no more than relief, prayers specific independent not causes of action. 6Judge Baker trespass overruled demurrers to the public private nuisance causes of (but only action as allegation continuing), insofar granted the violations were leave to declaratory amend as to the and injunctive claims. relief 7The proposed allegations: McKelvey second amended added these “owns occupies property real located . Rocketdyne within five . . miles of the She Facilities.” say facility. Walakavage doesn’t which at one perform “worked of Facilities ing directly activities operations subject related to the Facilities and [Boeing].” say control of facility. “long engaged He doesn’t which has a been in cover-up alleged] illegal massive just long engaged, activities as it had been in [the illegal storage and [Boeing’s] destruction of hazardous wastes. officials continued to vehe mently deny that engaged illegal the scientists were destruction of hazardous waste.” they may “Plaintiffs discovered injuries have sustained exposure as result of their year filing contamination their environment less one prior against than instant action time, [Boeing], Prior to that did suspefct injuries may Plaintiffs that the have suffered by any particular wrongdoing, by were caused act of No was ever informed [¶] water, [Boeing] that the air exposed any or soil which were was contaminated with might Any toxic substance that cause a health public risk. comment about contamination of [Boeing] only the environment public caused the conduct of assured the that no health posed. publicly suspect hazard was At no time was there ever a reason disclosed [Boeing] wrongful injuries activities or would cause [facilities] Plaintiffs.” 28, 1998, 8The appeal August notices of and Aumess filed which preceded by days remaining three their then dismissal claims. The orders of dismissal September deny Boeing’s were entered on 2. appeals. We nevertheless motion to dismiss the *7 dismissal, Although Boeing correctly that appeal asserts lies from the order of not from

B. The 1998 Actions 1. Adams is, had been sustained (that In after the demurrers September other named individuals actions), Cecil Adams and several hundred in Aumess. There are two alleged sued the same facts Boeing, alleging First, the named Adams adds this of allegations. description additional time injuries at the of com- sustaining “Certain plaintiffs: plaintiffs, herein, to work on [Boeing], of were or were employed by employed plained a or at the Facilities to various activities within Rocketdyne particu- perform lar to the Facilities directly operations related industry Second, Adams adds the [Boeing].” following to the control subject discovery: about allegations delayed have sustained as a may injuries

“Plaintiffs first became aware from the conduct of result of their contamination exposure arising [Boe- at Angeles’ the final of California Los ing] University when report time, was Prior to Plain- Worker Health Study published. suffered were caused may by tiffs did not that the injuries they suspect so doing by act of and/or were from any wrongdoing particular prevented Plaintiffs conduct described elsewhere [Boeing’s] Complaint. the] [as not, reasonable have discovered the could exercise of by diligence, at because of [Boeing’s] cause of their an earlier time injuries wrongful that the No was ever informed by [Boeing] misrepresentations. [1[] water, contaminated with any air or soil which were was exposed a risk. comment about Any toxic substance that cause health might public the conduct of [Boeing] only contamination of environment caused time there that no health hazard was At no assured public posed. [Boeing] that the activities ever a disclosed reason suspect publicly or would cause Plaintiffs.” wrongful injuries were [facilities] 2. Davis other named individuals filed Aaron Davis three October from Adams’s indistinguishable This action Boeing. complaint against .9 action here, where, demurrer, can treat the dispositive as we sustaining that fact order Center, (Nowlon Inc. v. Koram Ins. appealable order. incorporating earlier order as 683].) regard, Cal.Rptr.2d In this we note 1 Cal.App.4th [2 1440-1441 briefs, opening the motion to had filed their waited until and Aurness brief. respondent’s time was filed at the same as dismiss Aurness, McKelvey other and to 9Davis Adams deemed related each pursuant to section 170.6 assigned Judge Baker. After an affidavit originally *8 3. The Demurrers demurred to the Adams and Boeing Davis on same complaints grounds Aumess, asserted in McKelvey and and supported demurrers with the same judicial notice. requests February Judge Wasserman demurrers, denied the judicial notice overruled most of the requests (strict one was although sustained without leave to amend and two liability) (fraudulent with leave to amend concealment and violation of Business and 17200). (which Professions Code section had filed its Boeing just respon Aurness) dents’ briefs in then filed for a writ petition mandate in which it to asked us Judge Wasserman to vacate compel her orders and sustain the demurrers without leave to amend. We issued an order cause show so that could we consider all four cases at the same time.10

Discussion On and Aumess appeal, McKelvey (I) contend should have been they which, to file their permitted second amended are complaints they say, rule; sufficient to invoke the delayed (II) the trial discovery court should not have judicially noticed the “truth” of the facts stated in the documents demurrers; submitted by Boeing (III) of its support fraudulent con- cealment cause of action sufficient to overcome a demurrer because from equitably the bar of estopped asserting limitations as a claim; defense to that (IV) should have been permitted amend their nuisance, claims for strict (V) liability, (VI) (VII) their trespass; alleging violations section Business and Professions claims, Code timely filed. Boeing all of these disputes its petitions contends the demurrers in Davis and Adams should have been sustained without leave amend because are time barred.

I. Plaintiffs contend the of their allegations are sufficient complaints to invoke the delayed discovery rule. We disagree. Adams, against Judge Code Civil Procedure filed Baker in Davis those cases were

reassigned (Hon. Wasserman). judge to another Fumiko opposition petitions, 10In their us provided writ Adams and Davis have with copies of the third amended thereafter filed in actions. has appended Adams pleading plaintiffs designated his lists of the names of those “Rocketdyne Employees” as (those employed by Rocketdyne) designated “Rocketdyne and those as Union (those facilities). Workers” who employees were “contracted” work (or attachments) allegations are pleading There no in the show who worked at which action, facility. allegations are conclusory There added to the concealment cause fraudulent alleged. but no new or are additional facts Davis’s third amended includes same changes. *9 rule,” concede by implication on the “discovery their reliance By plaintiffs that, it, of limitations. barred one or more statutes without are by 338, Proc., 340, (b).) begin, We (Code (3), subd. subd. Civ. §§ therefore, rule—that rule. The common law an discovery by defining on the date of or accrues injury damages action for personal property rule,” provides as modified which “discovery only injury—applies until the is of a cause of action is delayed plaintiff that the accrual date this charged of and its cause. The with plaintiff aware his injury negligent that as date he or should his suspects suspect injury awareness of the to him. wrong that someone has done wrongdoing, something caused by regard of limitations to run without period begin will Accordingly, to necessary is aware of the facts establish specific whether plaintiff claim, of he is wrongdoing,” his that he has a which provided “suspicion or information of circumstances to put once he has “notice charged with (1988) 44 Cal.3d on Eli & Co. (Jolly Lilly reasonable v. person inquiry.” 658, 1103, 923].)11 A plaintiff 751 P.2d 1109-1111 Cal.Rptr. [245 his claim would be barred without shows on its face that whose complaint (1) of rule must facts show the benefit the discovery specifically plead earlier (2) the to have made inability time and of discovery manner The burden is on reasonable diligence. plaintiff discovery despite will not withstand demurrer. conclusory allegations show diligence, 1525, 1536- (CAMSI v. 230 Technology Corp. IV Hunter Cal.App.3d 80]; (1991) 230 Mangini Corp. v. Aerojet-General 1537 Cal.Rptr. [282 1125, requirement 1150-1151 Cal.Rptr. pleading Cal.App.3d 827] [this [281 accrual]; on the issue of is a safeguard against lengthy litigation procedural Actions, Procedure, Witkin, et 773 et 602 supra, seq., p. seq.) § Cal. second amended com (not None complaints proposed filed in and Aumess or the third amended plaints disclose the time or Davis) are sufficient because none of them Adams and conclusory only allegations offer by any They manner of discovery plaintiff. discovered and allegations of “massive Boeing’s cover-up,” they duty authority had absolutely plaintiffs’ fanciful contention that no 11There is no managed by they property owned or inquiry purchasers because were not or tenants of apparent it is from the face of the “privity” Boeing. not in with When thus were barred, rule, discovery plaintiff’s it delayed action would be time but for the reason, prove) “the (and diligence. plaintiff plead this must later burden to show For facts (in (b) obtaining knowledge the exercise of showing: (a) knowledge; lack means of lack of (c) date); at earlier how and diligence not have been discovered an reasonable the facts pould rule, actually or this constructive the fraud mistake. Under when he did discover So, has notice when knowledge. equivalent are knowledge or presumed notice person inquiry, opportunity or has put a circumstances to reasonable of information (such public investigation as records or knowledge open to his sources obtain from Witkin, 1996) (3 (4th ed. books), corporation commences to run.” Cal. Procedure the statute Actions, added.) italics p. § they “may injuries” have sustained as a result “less wrongs one than instant action Before year filing against [Boeing].”12 prior time, (without elaboration), say did not they they suspect any wrongdo- short, In all is that had no actual or ing. they say knowledge they suspicion about the full nature of their for those injuries Boeing’s responsibility and that did not entitled to recourse.” injuries, [they “believe[] were] do They allege were not aware of facts sufficient to make a reasonably prudent sufficiently investigate further. person suspicious v. (Mangini Aerojet-General 1150.) Corp., supra, Cal.App.3d p. *10 of the facts light they do these omissions are fatal. allege, Plaintiffs admitted in their first and amended that subsequently complaints notices and articles “public about newspaper published [Boeing’s] intentional, admission, reckless and/or conduct.” In face of that negligent that plaintiffs’ conclusory assertion “were and are not aware of the they [sic] actual and harm caused potential conduct” is inad by [Boeing’s] patently to Without resort the matters to equate. submitted the court for judicial notice, the bottom is (and line that plaintiffs’ amended) amended proposed acknowledge Boeing’s publicity surrounding operation facilities, Rocketdyne nevertheless fail to yet how to explain they managed those ignore articles.” Other a “newspaper than reference to an entire general year an an ambiguous (“the reference to undated final report report of California at University Los Angeles’ Worker Health Study”), they have not about the time or alleged manner of discovery; facts have not they alleged showing their to have made inability earlier facts (CAMSI reasonable discovery diligence. IV v. Hunter despite Technology 1536-1537; at Corp., supra, 230 Cal.App.3d Mangini Aerojet-General v. pp.

Corp., supra, 1150-1151.) 230 at They allege do that Cal.App.3d pp. they read, did not hear see or the articles and they broadcasts admit were published.

Plaintiffs had four bites at the do not on apple, they suggest or in writ that there are appeal opposition Boeing’s additional petitions Instead, facts could they satisfy rule. assert an plead discovery abstract to amend take right yet again, demand opportunity fifth bite. (Goodman Kennedy (1976) have no such v. They right. 18 Cal.3d 335, 375, 349 556 P.2d is not to the court to Cal.Rptr. up figure [134 737] [it amended; rather, out how a be can the burden is on amend, in show manner which he can and how amendment will cure 311, defect]; 718, (1985) Blank v. Kirwan 39 Cal.3d 318 Cal.Rptr. [216 58]; Credit, 703 P.2d Careau Co. Security & v. Business Inc. Pacific 222 387].) Cal.App.3d Cal.Rptr. [272 construed, 12Generously allege the most that can be said Aumess they discovered their claims in Davis and Adams in 1997.

II. Baker) court (Judge contend trial On appeal, plaintiffs fact— notice of the “truth” “a issue of took judicial disputed improperly . . cause of action.” In Plaintiff discovered his . the time and manner each Wasserman) court (Judge improp contends trial their petitions, is moot notice. the issue Although denied erly judicial request ante, that, I, for the in we do note record in of our conclusion part light articles, the truth of notice of judicial newspaper assuming propriety articles, The documents (newspaper the facts irrelevant. reported broadcasts, and “fact sheets” distributed of radio and television transcripts of residents and other for the benefit governments the state federal of the offered to show the extent widespread public interested parties) facilities. were offered They at the Rocketdyne about the ity problems limitations, had notice of the statute of at a time outside show a reasonable put person circumstances sufficient or information of Los Angeles anyone living were offered show They inquiry. or certainly living working vicinity County, anyone facilities, about the contamination have read heard would *11 of the accuracy reporting facilities. The and around irrelevant.13 *

III.-VI.

Disposition B125298), the (Nos. judgments Aurness B125285 and McKelvey and B130146), the (Nos. peti B130137 and are In Adams and Davis affirmed. the trial commanding shall issue tions are writs granted, peremptory (2) to issue new orders (1) its on the demurrers and court to vacate orders is entitled its leave to amend. the demurrers. without sustaining proceedings. of both writ costs appeal J., J., Materson, P. concurred. Spencer, 21, 1999, opinion and the July following was denied rehearing Petition for then rendered. was is, that articles accuracy of facts—that dispute not the relevant plaintiffs did 13Since broadcast, that the “fact sheets” were distributed— published, the shows only this by demurrer. We mention could not have been resolved there is no reason the matter that the briefing, emphasize so and effort in their spent much time parties

because moot. point . footnote, ante, page 601 *See (Miriam A.), J. VOGEL a for contend By petition rehearing, plaintiffs notwithstanding our view current we should have pleadings, remanded all four cases to trial court to an give plaintiffs opportunity their We disagree. it is complaints. an abuse Although amend discretion sustain demurrers without leave to amend when there ais “reasonable that the possibility” can amend their plaintiffs complaints defects, cure the the burden is on to show can plaintiffs how be amended and how such amendments will change legal effect of (Careau Credit, & pleadings. Co. v. Security Business Inc. Pacific 1371, 1386, 1388 Cal.App.3d 387].) Cal.Rptr. Notwithstanding [272 such a be showing may (id. made for the first 1386), time appeal p. case, did do (lc) not so in this a Assuming such showing could be made for the time first for petition rehearing, plaintiffs have done so with regard any these cases. Accordingly, they failed establish there is a reasonable that an possibility amendment would change the effect legal of their pleadings.

The petition rehearing is denied. J., J., Masterson, P.

Spencer, concurred. A 21, 1999, for a petition 14, 1999, was denied rehearing July and on July was opinion modified to read as above. The all printed petition and real appellants in interest parties review Court Supreme denied September 1999.