Opinion
NOT TO BE PUBLISHED
APPEAL from an order and judgment of the Superior Court of Madera County Super. Ct. No. MCV-029893. James E. Oakley, Judge.
Bill R. Benedix, in pro. per., for Defendant, Cross-complainant and Appellant.
Borton, Petrini & Conron, and Sean T. O’Rourke for Plaintiff, Cross-defendant and Respondent.
OPINION
Levy, J.
Appellant, Bill Benedix, purchased a water system from respondent, Aquacell Technologies, Inc., on April 9, 2003. On July 25, 2005, appellant filed a small claims action against respondent alleging that a leak in the water system discovered on September 1, 2003, had caused water and mold damage to his home. On August 24, 2005, respondent filed the underlying action for abuse of process and negligence against appellant. Appellant filed a cross-complaint on September 29, 2005, alleging various causes of action arising from the damages caused by the water leak including emotional distress, general negligence, products liability and fraud.
Respondent demurred to the cross-complaint on the grounds that appellant failed to state facts sufficient to constitute causes of action for “emotional distress,” “intentional tort,” and fraud and that the causes of action for general negligence, “intentional tort,” and products liability were barred by the two-year statute of limitations under Code of Civil Procedure section 335.1. This demurrer was sustained with leave to amend. When appellant failed to amend, the trial court dismissed the cross-complaint.
Original capitalization not followed throughout this opinion.
All further statutory references are to the Code of Civil Procedure.
Appellant argues that, contrary to the trial court’s ruling, he adequately stated causes of action for “intentional tort” and fraud. Appellant further contends that his cross-complaint relates back to the small claims action filed on July 25, 2005, and thus the causes of action for general negligence, “intentional tort,” and products liability were filed within two years. Appellant correctly notes that the statute of limitations for fraud is three years.
As discussed below, the demurrer was properly sustained as to appellant’s “intentional tort” and fraud causes of action. Both causes of action attempt to state claims for deceit against a corporation but fail to allege sufficient facts to do so. Further, the filing of a small claims action does not toll the statute of limitations for a superior court action. (Jellinek v. Superior Court (1991) 228 Cal.App.3d 652, 660.) Thus, none of the causes of action are timely under a two-year statute of limitations. However, it is a three-year, not two-year, statute of limitations that applies to appellant’s causes of action for general negligence and products liability. Thus, those causes of action are timely. Accordingly, the portion of the order sustaining the demurrer to the causes of action for general negligence and products liability will be reversed. In all other respects, the order of dismissal will be affirmed.
Appellant appealed from two orders, the order granting the motion to dismiss the cross-complaint and the order denying appellant’s motion to compel further responses to discovery requests. The order granting the motion to dismiss is a nonappealable order. Nevertheless, in the interest of judicial economy, we will deem this order to incorporate a judgment of dismissal. (Smith v. Hopland Band of Pomo Indians (2002) 95 Cal.App.4th 1, 2, fn. 1.) However, appellant provided no briefing on the allegedly erroneous discovery order. Consequently, appellant will be deemed to have abandoned his appeal from that order. (Cf. Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27, 42-43.)
DISCUSSION
1. Standard of review.
An order sustaining a demurrer with leave to amend is not a final judgment and therefore not appealable. (Otworth v. Southern Rac. Transportation Co. (1985) 166 Cal.App.3d 452, 457.) However, if a plaintiff fails to amend the complaint, the court will enter a judgment of dismissal from which an appeal to review the correctness of the sustaining of the demurrer may be taken. (Ibid.)
When a plaintiff elects not to amend, strict construction of the complaint is required. Further, it must be presumed that the complaint states as strong a case as is possible. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) The judgment of dismissal must be affirmed if the complaint is objectionable on any ground raised by the demurrer. (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.)
2. The cross-complaint fails to state a cause of action for fraud.
A plaintiff must plead a fraud cause of action with particularity. General pleading of the legal conclusion of “fraud” is insufficient. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) Rather, the facts supporting every element of the fraud cause of action must be alleged with sufficient specificity to allow the defendant to understand fully the nature of the charge made. (Ibid.; Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) In a fraud action against a corporation, this specificity rule requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co., supra, 2 Cal.App.4th at p. 157.)
In his seventh cause of action for fraud, appellant alleged that on or about April 9, 2003, to present, respondent “falsely represented that the product they sold plaintiff was excellent without defect” when in fact there was “a defect in the ultraviolate [sic] cartridge lot number 02092500, part number 200008, which caused water to leak out into plaintiff[’]s home .…” Appellant further alleged that “defendants intentionally concealed the defect.”
In the fifth cause of action appellant again alleged fraud, although he labeled it “intentional tort.” Appellant stated “Defendants intentionally, knowingly, willingly subjected plaintiff to the said injuries and damages by their wreckless [sic] and intentional concealment of the true facts that the product they sold to plaintiff was defective as alleged herein plaintiff[’]s papers and pleadings which makes them liable for the said damages and injury which resulted from fraud, and malice of the said defendants.”
Respondent demurred to these two causes of action on the grounds that: there were no allegations regarding the names of the persons who made the allegedly fraudulent representation, their authority to speak for the corporation, or when the representation was made; appellant did not allege the necessary fraud elements of scienter, intent to defraud, or justifiable reliance; and the alleged false statement that the product was “excellent” was a nonactionable representation of opinion.
As discussed above, since appellant failed to amend his cross-complaint when given leave to do so, the ruling sustaining the demurrer to these causes of action must be affirmed if the causes of action are objectionable on any ground raised by the demurrer. (Soliz v. Williams, supra, 74 Cal.App.4th at p. 585.)
Respondent’s first ground alone mandates affirmance. Appellant did not even attempt to specify who made this allegedly false representation, what his or her authorization was, or when the representation was made. Thus, the fraud causes of action were not pleaded with sufficient specificity. The trial court properly sustained the demurrers to the fifth and seventh causes of action.
3. The general negligence and products liability causes of action are not barred by the statute of limitations.
In the fourth cause of action for general negligence and the sixth cause of action for products liability, appellant alleged that respondent’s conduct caused water damage and toxic mold buildup to his home. Specifically, appellant alleged in the fourth cause of action that respondent failed to disclose that the “water cooler system they sold to [appellant] had a defect in one of the components … which caused it to leak water which caused the damage and injury to [appellant] including water damage to his home, and toxic mold buildup which must be compensated for by [respondent].” Similarly, in the sixth cause of action appellant alleged that the water cooler system had a defective cartridge “which defect caused said cartridge to leak which caused serious water damage and toxic mold buildup to [appellant’s] home causing injury.”
Respondent demurred. However, respondent had only one objection to both the fourth and the sixth causes of action. According to respondent, these causes of action were barred by section 335.1. That section provides that an action for “injury to, or for the death of, an individual caused by the wrongful act or neglect of another” must be commenced within two years.
However, appellant is not alleging he suffered personal injuries in these two causes of action. Rather, appellant is claiming damage to real property. The statute of limitations for “injury to real property” is three years. (§ 338, subd. (b).) Appellant filed his cross-complaint within three years of the installation of the water system in his home. Thus, contrary to the trial court’s ruling, these causes of action are not time barred. (Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 119; Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 647.) Accordingly, the demurrer should not have been sustained to the fourth and sixth causes of action on the ground asserted by respondent.
Respondent argues that, because appellant quitclaimed his interest in the real property at issue to the “Starseed Charitable Foundation,” he no longer has standing to pursue this case. However, this transfer was to a revocable trust of which appellant and his wife are the trustees with broad powers over the trust assets. Thus, appellant has retained control of the property. Appellant’s request for judicial notice of the trust agreement is granted.
Since the statute of limitations was respondent’s only objection to the fourth and sixth causes of action, the order sustaining the demurrer to these causes of action must be reversed, even under the strict standard of review applicable to this case. In other words, these causes of action were not objectionable on any ground raised by the demurrer. (Soliz v. Williams, supra, 74 Cal.App.4th at p. 585.)
DISPOSITION
The order sustaining the demurrer to the fourth and sixth causes of action for general negligence and products liability is reversed. In all other respects, the order of dismissal is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: Vartabedian, Acting P.J., Wiseman, J.