In its complaint, Appellant Platt Electrical Supply, Inc. (Platt) alleged that Appel-lee Underwriters Laboratories, Inc. (UL), a non-profit consumer safety group, negligently misrepresented and fraudulently concealed that defective in-wall heaters were safe. Platt challenges the district court’s grant of UL’s motion to dismiss and motion for judgment on the pleadings. Platt contends that the district court erred in dismissing its negligent misrepresentation and fraudulent concealment claims as time-barred under California’s statutes of limitations. Platt asserts that its claims were not time-barred in view of California’s discovery rule and UL’s fraudulent concealment. Platt also maintains that the
We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the judgment of the district court.
/. BACKGROUND
Platt filed its complaint in 2003. According to its complaint, 1 Platt was “engaged in the distribution, marketing, and wholesale supply of electrical products intended for consumer purchase and use.” UL “is a not-for-profit corporation ... principally engaged in the business of formulating safety standards for new consumer products, testing such products against its standards, determining whether the product so tested conforms to the standards, and, if the product does comply, authorizing the product’s manufacturer to imprint UL’s distinctive mark on the complying product.”
Platt asserted that Cadet Manufacturing Company (Cadet) ‘.‘manufactured ... in-wall space heaters under the names ‘Cadet’ and ‘Encore.’ ” UL evaluated Cadet’s heaters, and determined that the heaters complied with UL’s safety standards. UL “authorized Cadet to include the UL mark on the labels of the Heaters.” UL’s “process is known as ‘listing’, and a product that has qualified to bear the UL mark is said to be a ‘listed product.’ ”
Platt charged that by permitting these listings, “UL impliedly represented to Plaintiffs” that the heaters were “suitable for reasonably safe use as an in-wall heater ...”
Platt alleged that the heaters “manufactured between 1978 and the present, and listed by UL since at least 1985, are inherently defective.” According to Platt, “if the heaters had not been endorsed by UL then neither of the Plaintiffs would have engaged in the purchase, sale, advertisement, or distribution of the Heaters. Moreover, Plaintiffs are informed and believe, and based thereon allege, that at no time prior to a 1999 CPSC [Consumer Product Safety Commission] recall did they become aware that the Heaters were inherently defective.”
Platt alleged that “based on the express approval by UL of the Heaters, [it] distributed in excess of nineteen-thousand [sic] (19,000) Cadet heaters.”
Platt also asserted “that since at least 1988, UL became aware that the Heaters were exhibiting defects.... However, UL took no action relative to rescinding its endorsement of the product or notifying the general public, product distributors or retailers ... of the dangerous defects inherent in the Heaters.” “Despite its knowledge, as early as 1988, of the defects inherent in the Heaters, UL continued to list Cadet heaters.” According to Platt, “Plaintiffs did not discover Defendants’ wrongful conduct or its basis for liability until 2001 when they became involved in [sic] consumer class action ... and were granted through pre-trial discovery limited access to Defendant UL’s files concerning the Heaters.” Additionally, Platt charged that “Defendants’ wanton and reckless refusal to disclose such information fraudulently concealed from Plaintiffs crucial facts ...”
“[I]n or around 1998, the [CPSC] became aware that Cadet heaters were defective. Accordingly, on or around January 14, 1999, the CPSC filed an administrative order recalling all Cadet heaters ...” “Plaintiffs were required,
“[Contemporaneous to the CPSC recall, a consumer class action was filed on behalf of all purchasers of the Heaters ...” Platt “was named as a defendant ... [and] entered into a settlement agreement with the class, pursuant to which Plaintiff PLATT continues to pay money to the class.” According to Platt, it “has paid in excess of one-million one-hundred fifty-six-thousand dollars ($1,156,000.00) pursuant to the class settlement.”
In its negligent misrepresentation claim, Platt alleged that “at least since 1989[UL] had knowledge that the Heaters failed and could, and in fact had, caused catastrophic injury and death. Despite such knowledge, [UL] continued to represent to the world at large that the Heaters were safe products.” “[UL] continued to allow its mark to be placed on the Heaters knowing that consumers, distributors, and retailers rely on the mark as an assurance of safety. [UL] continued to make such material representations of material facts without an adequate basis or knowledge for making such representations.” According to Platt, “[UL] failed to act because such action would constitute a tacit admission that [UL’s] testing procedures were flawed and such an admission would undermine[UL’s] position as the self-proclaimed leader in certifying the safety of consumer goods.”
Platt also alleged that “[a]t no time prior to the Class Action or CPSC recall did Plaintiffs have any reason to suspect that the Heaters were unsafe. Plaintiffs relied on the UL mark as an assurance of the Heaters’ safety and suitability for its end use ...”
In its fraudulent concealment claim, Platt alleged that it was not required to conduct an independent investigation of the heaters’ safety. Rather, Platt “heavily [relied] on the existence, or non-existence, of the UL mark on a good.” Platt alleged that “[UL], by allowing their mark to remain on the Heaters, intentionally intended to mislead consumers, retailers, and distributors like Plaintiff into believing that [UL’s] listing procedures accurately reflected that the Heaters were suitable and safe for their intended use by consumers and were to be absolutely relied on so that [UL] could maintain their position as self-proclaimed leaders in certifying the safety of consumer goods.” Platt also asserted that UL “assumed a duty to disclose, whether by de-listing or public notification, any known incidents that might dissuade consumers, retailers and distributors like [Platt] from trading in the Heaters.”
The district court determined that Platt was “on inquiry notice of their claims as early as 1999.” Specifically, the court held that “once [Platt] became aware [through the CPSC recall and class action] that the cadet heaters they sold were potentially defective, and they began to suffer damages, [they] were on inquiry notice that UL, on whose mark they relied, may have either negligently tested or negligently endorsed those products.... ” The district court, therefore, dismissed Platt’s negligent misrepresentation claim as time-barred without leave to amend. However, the district court denied UL’s motion to dismiss Platt’s fraudulent concealment claim.
The district court subsequently granted UL’s motion for judgment on the pleadings and dismissed Platt’s fraudulent concealment claim as time-barred, again without leave to amend.
Platt dismissed its remaining equitable indemnification claim, and filed a timely notice of appeal.
II. STANDARDS OF REVIEW
We “review
de novo
the district court’s decision to grant a motion to dismiss pur
We “review judgment on the pleadings de novo.”
Stanley v. Trustees of the Cal. State Univ.,
The parties contest the applicable standard of review for the district court’s dismissal of Platt’s claims without leave to amend. Platt contends that the standard of review is de novo. UL counters that the standard of review is for an abuse of discretion.
This appeal involves the issue of whether any amendment would be futile due to dismissal pursuant to the applicable statutes of limitations. We review such issues for an abuse of discretion.
See Naas v. Stolman,
III. DISCUSSION
A. The Discovery Rule And The Fraudulent Concealment Doctrine As Applied To Platt’s Claims
Pursuant to California Code of Civil Procedure § 338(d), there is a three-year statute of limitations for “[a]n action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” For negligent misrepresentation, there is a two-year statute of limitations. Cal.Civ. Proc.Code § 339(1);
Ventura County Nat’l Bank v. Macker,
“Since a cause of action
accrues
when the
elements
of the cause of action, including damage occur, the appreciable and actual harm that results in accrual must be harm of the specific type that is recoverable as damages on that type of cause of action.”
County of Santa Clara v. Atl. Richfield Co.,
“A cause of action accrues when the claim is complete with all of its elements.”
Slovensky v. Friedman,
Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. In so using the term elements, we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.
V.C. v. Los Angeles Unified Sch. Dist.,
“A close cousin of the discovery rule is the well accepted principle of fraudulent concealment.”
Bernson v. Browning-Ferris Indus. of California, Inc.,
1. Platt’s Negligent Misrepresentation Claim
“Negligent misrepresentation is narrower than fraud.”
Shamsian v. Atl. Richfield Co.,
Platt was on inquiry notice of its negligent misrepresentation claim in 1999. In 1999, Platt became aware of the heaters’ defects due to the CPSC recall. Platt was statutorily required to bear a portion of the recall’s costs. “[C]ontemporaneous to the CPSC recall,” Platt was named a defendant in a class action concerning the heaters’ defects. In 1999, Platt should have been suspicious that UL negligently represented that the heaters were safe, given the recall and the class action suit. Based on the extensive legal and economic repercussions produced by the recall and class action, Platt had “reason to at least suspect that a type of wrongdoing ha[d] injured [it].”
V.C.,
Similarly, Platt’s claim is not tolled pursuant to the fraudulent concealment doctrine. Platt alleged that it was not privy to UL’s documents concerning UL’s allegedly fraudulent conduct until 2001. However, Platt failed to demonstrate that UL’s conduct concealed the facts of its alleged negligent misrepresentation, as Platt had notice of UL’s potential wrongdoing as early as 1999.
See Goldrich v. Natural Y Surgical Specialties, Inc.,
Platt’s reliance on
Fox v. Ethicon Endo-Surgery, Inc.,
It is therefore consistent with our prior applications of the discovery rule to delay accrual of a products liability cause of action even when a related medical malpractice claim has already accrued, unless the plaintiff has reason to suspect that his or her injury resulted from a defective product.... [I]f a plaintiffs reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused by tor-tious conduct of a wholly different sort, the discovery rule postpones accrual of the statute of limitations on the newly discovered claim.
Id.
at 813,
Platt’s claims did not involve ignorance of the heater’s defects. Platt was aware of UL’s identity and alleged wrongdoing in 1999. Based on the recall and subsequent class action, it should have been obvious to Platt that its injuries potentially stemmed from UL’s misrepresentations of the heaters’ safety, particularly given Platt’s reliance on UL’s endorsement. The district court, therefore, properly dismissed Platt’s negligent misrepresentation claim, filed in 2003, as barred by the two-year statute of limitations.
See Jolly,
2. Platt’s Fraudulent Concealment Claim
“With respect to actions based on fraud, the statute of limitations is tolled whenever plaintiff is able to show the de
Platt’s fraud claim was not tolled pursuant to California law. In
Norgart v. Upjohn Co.,
[T]he plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof — when, simply put, he at least suspects that someone has done something wrong to him, wrong being used, not in any technical sense, but rather in accordance with its lay understanding. He has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements. He has reason to suspect when he has notice or information of circumstances to put a reasonable person on inquiry; he need not know the specific facts necessary to establish the cause of action; rather, he may seek to learn such facts through the process contemplated by pretrial discovery; but, within the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place — he cannot wait for them to find him and sit on his rights; he must go find them himself if he can and file suit if he does.
Id.
at 397-98,
Code of Civil Procedure section 338, subdivision (d), effectively codifies the delayed discovery rule in connection with actions for fraud, providing that a cause of action for fraud is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. In a case such as this, that date is the date the complaining party learns, or at least is put on notice, that a representation was false.
[The California Supreme Court in] Nor-gart explained that by discussing the discovery rule in terms of a plaintiffs suspicion of elements of a cause of action, it was referring to the generic elements of wrongdoing, causation, and harm. In so using the term elements, we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.
Recently, in
Hamilton Materials, Inc. v. Dow Chemical Corp.,
Appellant argues that its fraud claim did not accrue until a deposition in 2003, when it learned of Appellees’ specific intention to deceive their customers regarding the health hazards of Calidria... .[I]t is not necessary that Hamilton had notice of Appellees’ specific intention to deceive before the fraud action accrued. All that is relevant is that a reasonable person — especially a sophisticated manufacturer of asbestos- — -would have been on notice of a potential misrepresentation. This is the date that the complaining party learns, or at least is put on notice, that a representation is false.
Id. at 1206-07 (citation omitted).
The rule stated in
Hamilton Materials
that a cause of action for fraud under California law accrues when a plaintiff has inquiry notice, that is, when he or she “learns, or at least is put on notice, that a representation is false[,]”
While the
Hamilton Materials
analysis is thus limited to cases of fraud governed by California law, the concept of inquiry notice to which
Hamilton Materials
alludes has also arisen in the federal securities fraud context in our recent decision in
Betz v. Trainer Wortham & Co., Inc.,
These cases demonstrate that Platt’s fraudulent concealment claim was not tolled. Platt conceded that “[i]t may be fair to say (as did the district judge in this case) that once Platt learned that the heaters were defective and posed a safety hazard, it was on notice that UL’s certification (and, thus, its representation) of safety was factually false.” At that point, Platt was aware that it had suffered an economic injury stemming from its payment of a portion of the costs from the 1999 recall and class action settlement. It also knew that this injury stemmed from UL’s alleged wrongdoing — -the purported misrepresentation. Platt acknowledged its reliance and dependence on UL’s representation and was involved in an extensive recall and subsequent class action litigation concerning the defective heaters. After becoming aware in 1999 of its economic injury stemming from the defective heaters and UL’s representations concerning their safety, Platt had a basis to question UL’s representations concerning the heaters’ safety. Platt’s fraudulent concealment claim, filed in 2003, was therefore barred by the three-year statute of limitations.
See Hamilton Materials,
The district court did not abuse its discretion in dismissing Platt’s negligent misrepresentation and fraudulent concealment claims without leave to amend. Platt contended that it could amend its complaint to allege that it received information in 2001, during discovery for the class action, that a former UL employee stated that UL concealed the heaters’ unsafe conditions.
However, because Platt’s claims are barred by the statute of limitations, any amendments would have been futile.
See Steckman v. Hart Brewing, Inc.,
IV. CONCLUSION
The district court properly dismissed Platt’s negligent misrepresentation and fraudulent concealment claims as barred by the statutes of limitations, and did not abuse its discretion in dismissing Platt’s claims without leave to amend.
AFFIRMED.
Notes
. The factual background is based on Platt's complaint, because, in reviewing a motion to dismiss, "[w]e accept as true all well-pleaded facts in the complaint and construe them in the light most favorable to the nonmoving party.”
Watson v. Weeks,
.
Grisham v. Philip Morris U.S.A., Inc.,
. Platt also contends that the district court erred in holding that UL did not have a duty to disclose the heaters’ unsafe conditions.
The district court ruled in Platt's favor on the issue of whether Platt stated a claim for fraudulent concealment. The district court incidentally stated that Platt had failed to allege a transactional or confidential relationship between Platt and UL as required to trigger a duty to disclose. However, the dis-positive ruling was that Platt’s fraudulent concealment claim was barred by the statute of limitations.
”[C]ourts review judgments, not statements in opinions ...”
Envtl. Prot. Info. Ctr., Inc. v. Pac. Lumber Co.,
In any event, because Platt failed to allege that there was a transactional relationship between Platt and UL, the district court properly observed that, pursuant to California law, Platt’s fraudulent concealment claim could not be premised on a duty to disclose.
See LiMandri v. Judkins,