Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Super. Ct. No. RCV096482, Martin A. Hildreth, Judge. (Retired judge of the former San Bernardino Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
McKay, Graham & de Lorimier, Paul A. de Lorimier and Nancy A. Ramsey for Petitioners.
No appearance by Respondent.
Reiss & Johnson and James V. Reiss for Real Party in Interest.
OPINION
HOLLENHORST, Acting P. J.
In this matter, we have reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
First, we note that real party in interest’s lack of knowledge concerning possibly defamatory statements about him is irrelevant to the causes of action alleged. Real party in interest’s suit does not directly concern his termination by Forethought Life Insurance Company, but petitioners’ conduct in dealing with him.
With respect to real party in interest’s cause of action based on misrepresentation, such a claim is subject to a delayed discovery accrual date as a matter of statute. (Code Civ. Proc., § 338, subd. (d).) Real party in interest would have the burden of establishing delayed discovery at trial (Bond v. DeWitt (1954) 126 Cal.App.2d 540); but, on a motion for summary judgment, it was incumbent on petitioners to produce some evidence showing that the fraud could have been discovered at a date that would make the action untimely filed. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) Petitioners did not carry that burden. With respect to the fraud cause of action, the petition is denied.
However, a contract claim normally accrues at the time of breach and the circumstances in which a plaintiff can rely on delayed discovery are extremely limited. (See Gryczman v. 4550 Pico Partners, Ltd. (2003) 107 Cal.App.4th 1.) Here, if there was any breach of the terms of the oral contract under which real party in interest was to sell policies to church pastors, it occurred when he was told that no further sales were to be made. That date was more than two years before the action was filed (Code Civ. Proc., § 339) and real party in interest produced no evidence suggesting that any other accrual date might be appropriate.
DISPOSITION
Accordingly, the petition for writ of mandate is denied in part and granted in part. Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino to vacate its order denying summary judgment and summary adjudication, and to enter a new order granting summary adjudication of the contract cause of action and denying summary adjudication as to the fraud cause of action.
The parties shall bear their own costs.
Petitioners are DIRECTED to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: McKINSTER J. MILLER J.