IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
November 30, 2010
DARWIN RICHARDS ET AL., PLAINTIFFS AND APPELLANTS,
CITY OF RICHMOND ET AL., DEFENDANTS AND RESPONDENTS.
The opinion of the court was delivered by: Margulies, J.
Richards v. City of Richmond
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Symmetry Device Research, Inc. and its president, Darwin Richards, (collectively, SDRI) appeal from an order following the sustaining of a demurrer without leave to amend dismissing their suit against the City of Richmond and the Richmond Housing Authority (collectively, the City). Finding SDRI has failed to meet its burden of demonstrating trial court error, we affirm the order.
In March 1998, SDRI and the City entered into two contracts under which SDRI would provide the City with electricity and natural gas, respectively.*fn1 The agreements were effective from April 1, 1998 to March 31, 2000, with an automatic two-year renewal. Each contract provided that either party could terminate the contract at will with 30 days' notice.*fn2
On February 18, 1999, the City notified SDRI in writing that it was terminating the natural gas contract as of March 31, 1999. The City gave notice of termination of the electricity contract on March 1, 1999.
SDRI filed this action on October 27, 2008, alleging causes of action for breach of contract and mechanic's lien foreclosure.*fn3 The complaint alleged the City owed SDRI $1,008,000 together with interest. The City responded with a motion for judgment on the pleadings contending the action should be dismissed because (1) SDRI failed to present a timely claim to the City under the Government Claims Act (Gov. Code, § 810 et seq.); (2) the statute of limitations for breach of contract had expired before SDRI filed its suit; and (3) mechanic's liens are unenforceable against public property. The trial court granted the City's motion and dismissed the action without leave to amend on July 9, 2009. On SDRI's ensuing motion for reconsideration, the trial court granted SDRI leave to file an amended complaint--to be designated its second amended complaint because SDRI had improperly attempted to file a first amended complaint in July. SDRI's second amended complaint (SAC) was filed on October 6, 2009.
SDRI's SAC alleged three causes of action:
A breach of contract cause of action alleged the City paid SDRI approximately $67,000 for five months of natural gas and then refused to pay any more SDRI bills "even though the contract term was for 2 years, and even though CITY was still receiving gas from SDRI." The SAC further alleged that "PG&E convinced CITY to breach the contract with SDRI and return to PG&E as its gas supplier; in the alternative, CITY decided to breach the contract with SDRI by arranging gas shipments with SDRI's supplier or others so as not to have to pay SDRI."*fn4 The SAC averred that, after the City sent notices canceling the gas and electric contracts, it continued "for many years" thereafter promising payment to SDRI for gas already used. SDRI alleged this occurred "to the detriment of SDRI with respect to any statute of limitations." It further alleged "no government tort claim was required to be filed," because the cause of action was for breach of contract.
A second cause of action, captioned "Fraud/Interf. with Econ. Advantage," alleged that PG&E "improperly enticed" the City to prematurely breach its contracts with SDRI in return for lower bills or some other payment or consideration.
SDRI's third cause of action for unjust enrichment alleged that SDRI conferred a benefit on the City in the form of a lower cost gas supply for which it has not been fully paid.
The City promptly demurred to the SAC on two grounds: (1) all three causes of action were barred for failure to comply with the Government Claims Act, and (2) all three causes of action were time-barred under the applicable statutes of limitations. The trial court entered an order granting the City's demurrer and dismissing SDRI's SAC without leave to amend on January 21, 2010. On March 15, 2010, SDRI filed a timely notice of appeal from "the order sustaining demurrer and judgment in favor of [the City] entered on January 21, 2010."*fn5
On appeal from a judgment of dismissal after a demurrer has been sustained without leave to amend, the appellant has the burden of proving error. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) In deciding whether appellant has met its burden, we need only consider claims of error that are raised in the appellant's opening brief (Inyo Citizens for Better Planning v. Inyo County Bd. of Supervisors (2009) 180 Cal.App.4th 1, 14, fn. 2), and are supported by "argument, discussion, analysis, or citation to the record" (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 775).
SDRI's opening brief is nearly devoid of argument addressing the basis for the trial court's decision. The document does not mention, cite to, or discuss either the Government Claims Act or any statute of limitations potentially applicable to its causes of action.*fn6 The sole substantive assertion made in the brief that has any even arguable relevance to the trial court's demurrer ruling is: "It was recently discovered by Appellants that PG&E interfered with the gas and electricity supply contracts by convincing CITY to switch back to PG&E (all without public notice or competitive bid)." SDRI does not say when it discovered this alleged fact, how it discovered it, why it did not discover the fact earlier, or how this fact is relevant to showing trial court error in sustaining the demurrer.
Generously construing SDRI's assertion as a cognizable argument, it is still wholly insufficient to meet its burden of showing error. First, SDRI does not explain why recent discovery, even if properly pleaded, would excuse it from complying with the Government Claims Act. Delayed accrual does not excuse compliance with that act. Late claims must be presented under the Government Claims Act within either one year or six months after accrual of the cause of action for statute of limitations purposes, depending on the type of claim involved. (Gov. Code, § 911.2, subd. (a); see also § 901 [date of accrual means "date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented [under the Government Claims Act]"].) SDRI's opening brief hints at no other arguable excuse for its noncompliance with the Act.
Second, even assuming without evidence that SDRI's bare claim of recent discovery could overcome its noncompliance with the Government Claims Act, its claims would still be time-barred absent facts showing reasonable diligence in bringing this action. A plaintiff seeking to avoid the statute of limitations must plead facts showing " '(a) Lack of knowledge. (b) Lack of means of obtaining knowledge (in the exercise of reasonable diligence the facts could not have been discovered at an earlier date). (c) How and when [he or she] did actually discover the fraud or mistake.' " (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1525, quoting 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 454, pp. 484-485.) At no time, either in the trial court or this court, has SDRI suggested that it could plead facts meeting these requirements or otherwise demonstrating that the statute of limitations on its claims had not expired years ago.
SDRI has failed to meet its burden of showing the trial court erred in sustaining the City's demurrer.
The January 21, 2010 order dismissing SDRI's action is affirmed.
We concur: Marchiano, P.J. Dondero, J.