Opinion
B225999
09-21-2011
DAVID ANDREW GUERRERO, Plaintiff and Appellant v. SOUTHERN CALIFORNIA KAISER PERMANENTE MEDICAL GROUP et. al., Defendants and Respondents.
David Andrew Guerrero, M.D., in pro. per., for Plaintiff and Appellant. Carroll, Kelly, Trotter, Franzen & McKenna and Michael J. Trotter, Brenda M. Ligorsky and David P. Pruett for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VC054562)
APPEAL from a judgment of the Superior Court of Los Angeles County. C. Edward Simpson, Judge. Affirmed.
David Andrew Guerrero, M.D., in pro. per., for Plaintiff and Appellant.
Carroll, Kelly, Trotter, Franzen & McKenna and Michael J. Trotter, Brenda M. Ligorsky and David P. Pruett for Defendants and Respondents.
David Andrew Guerrero (appellant) sued Southern California Kaiser Permanente Medical Group (Kaiser Permanente) and Kaiser Foundation Health Plan, Inc. (Kaiser Foundation) (Kaiser Permanente and Kaiser Foundation collectively referred to as Kaiser) for claims arising from their alleged negligent hiring and supervision of their employee, David Alfred Guerrero (Alfred), who allegedly stole appellant's identity with information obtained from Kaiser. Kaiser filed demurrers to the first amended complaint (FAC), which were sustained by the trial court without leave to amend. The trial court concluded that appellant's claims were barred by the applicable statute of limitations and that Kaiser did not owe appellant any duty. It is from the judgment entered upon this ruling that this appeal is taken. Because we conclude that appellant's claims are barred by the statute of limitations, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The FAC
On September 23, 2009, appellant filed a complaint for damages against Kaiser and DOES 1 to 25. On February 25, 2010, after Kaiser had filed demurrers to the original complaint, appellant filed the FAC.
According to the FAC, in May 2005, appellant, a long-time patient of Kaiser and on Kaiser's staff as a per diem physician, learned that his social security number had been fraudulently used to open credit card accounts. He reported it to the police, but continued his own investigation, during which he learned that one of the fraudulent credit cards was used to purchase a fitness center membership.
On January 26, 2006, appellant went to the fitness center where he learned the name of the person who used the fraudulent credit card, his work phone number, cell phone number, place of business and that he had been seen with a new, white, four-door Infiniti. Appellant then telephoned the numbers he had been given. The work number was a Kaiser telephone number, and the voice mail stated, "you have reached David Guerrero of patient business risk management, please leave a message. . . ." Alfred worked for Kaiser in its risk management department at the Walnut Center, in Pasadena, a location which also housed Kaiser's employee records. That department is "less than 75 feet from the Human Resource Department at the Walnut Center."
In the afternoon of January 26, 2006, appellant went to an address in Monrovia, which he had learned was the address used on a fraudulent Bloomingdales' application obtained by using his social security number. In front of the residence was a new, white, four-door, G-35 Infiniti. The car had a Kaiser parking permit and several Kaiser prescription bottles on the front seat, with the name "Guerrero, David" on them. Appellant reported this information to the Monrovia Police Department.
That evening, appellant contacted Kaiser's risk management department to provide the information he had learned and to request an internal investigation. He was met with "hostility" by several management level employees, including the head of risk management, who said it was unlikely Alfred stole appellant's identity. Between February 18, 2006, and May 16, 2006, appellant received several letters from Kaiser's credentialing department at the Walnut Center (where Alfred worked), first asking for his voluntary resignation of his physician privileges, and later giving him just 15 days to respond to a letter informing him that he was "now" due for "'reapproval,'" though his approval was not scheduled to expire for six months. The timing of the letter appeared to appellant to be linked to his recent disclosure to Kaiser regarding Alfred.
Before Alfred's employment by Kaiser, he had several civil judgments against him, numerous tax liens, a misdemeanor conviction in approximately 1997 for credit card fraud, and owed more than $70,000 in back child support. His name and date of birth were associated with six social security numbers in addition to appellant's social security number. Despite Alfred's troubled history, about which Kaiser knew or should have known, Kaiser disregarded it and hired him "knowing that Alfred would pose a danger and ultimately harm [appellant]."
On September 28, 2006, the district attorney filed a complaint charging Alfred with multiple offenses. On September 25, 2007, Alfred pled no contest to unlawful use of appellant's personal information (Pen. Code, § 530.5, subd. (a)), and "[appellant] was declared a victim of identity theft."
In reviewing documents "recently" received from the Monrovia Police Department, appellant learned that his social security number and an on-line credit card application with his social security number on it were found on Alfred's work computer at the Walnut Center. Kaiser never notified appellant that this information had been found on Alfred's computer. Alfred obtained appellant's personal information from appellant's personnel and medical files at Kaiser and used it to fraudulently procure loans and credit. Alfred defaulted on his payments on the fraudulent obtained credit, which were reported under appellant's social security number to credit reporting agencies, negatively affected his credit scores and resulting in economic losses and stress-related ailments.
Based upon these allegations, the FAC alleged causes of action for negligent hiring of Alfred, gross negligence in the handling of appellant's confidential information, and intentional infliction of emotional distress. The emotional distress claim was based upon Kaiser's outrageous conduct in hiring Alfred, failing to secure appellant's personal information, permitting Alfred to steal it, failing to notify appellant of the breach of his privacy and sending letters demanding appellant's resignation only weeks after appellant claimed that Alfred had stolen his identity.
Appellant sought actual damages, punitive damages, special damages and attorney's fees on each of the causes of action. Demurrer to amended complaint
On March 25, 2010, Kaiser filed a demurrer to the FAC, claiming that all of the causes of action were barred by the two-year statute of limitations contained in Code of Civil Procedure section 335.1. It also claimed that the amended complaint failed to state facts sufficient to constitute causes of action for (1) negligent hiring because the complaint failed to allege that Kaiser owed a duty to appellant personally or that the duty was breached, (2) gross negligence because there is no separate action for gross negligence, and (3) intentional infliction of emotional distress because there was no allegation that the conduct was done with the specific intent to personally cause appellant emotional distress, and the conduct was not so extreme as to exceed the bounds of a civilized community.
Opposition to demurrer to amended complaint
In opposition to Kaiser's statute of limitations argument, appellant argued the delayed "'discovery rule.'" He said that prior to Alfred's conviction on September 25, 2007, he "had no proof that Alfred stole his identity," but only a "'hunch.'" The Monrovia detectives concluded that there was no evidence to prove that Alfred stole appellant's identity. Alfred's conviction was the last element essential to his claims against Kaiser because Kaiser was only liable for his damages because the person who stole his identity was employed by Kaiser and used his position to steal appellant's personal information. Appellant also argued that Kaiser owed him a duty because he was both an employee and patient of Kaiser, special relationships which gave rise to a duty of care for his personal information.
In support of his opposition, appellant filed a declaration stating that he had "erroneously excluded [a paragraph] from the FAC," that was in an earlier draft. That paragraph read: "'On February 12, 2006 [appellant] received a phone call from Sergeant Wright of the Monrovia Police Department. [Appellant] learned from Sergeant Wright that the detectives at the Monrovia Police Department had completed their investigation and concluded that there was no evidence to prove that David Alfred Guerrero had stolen [appellant's] identity. The detectives had concluded that the entire situation with regards to credit under the Plaintiff's social security number had been a credit bureau mistake since that [appellant] (David Andrew Guerrero) and Kaiser employee David Alfred Guerrero shared the same first and last name, same middle initial, and worked for the same employee [sic]."“"
Ruling on demurrers
The trial court sustained Kaisers' demurrers based on the applicable statute of limitations. It reasoned that appellant alleged that he knew of the theft of his identity in May 2005. In January 2006, he discovered the thief's name, association with Kaiser, and that he worked at Kaiser's business risk management department. In February and May 2006, appellant received letters from Kaiser which he believed were sent in retaliation for complaining to Kaiser about Alfred. "Such information should have been sufficient to put a reasonably diligent person on notice of a potential claim against Kaiser." This action was filed more than two years later. The demurrers were also sustained on the ground that Kaiser owed appellant no duty.
DISCUSSION
I. Appellant's contentions
Appellant contends that the trial court erred in concluding that his claims are barred by the statute of limitation in Code of Civil Procedure section 335.1. He argues that the delayed discovery rule applies because appellant's alleged wrongful conduct was insidious and his injuries were sustained years before the perpetrator was discovered. It was not possible to initiate litigation "until a party was meritoriously identified as a party to blame for the injuries caused by the wrongful actions committed against the Plaintiff." According to appellant, this occurred when Alfred was convicted on September 25, 2007. Appellant also contends that the trial court erred in ruling that Kaiser did not owe him a duty of care. He argues that he adequately pled that Kaiser owed him a duty of care by virtue of appellant's employer-employee relationship with Kaiser and his healthcare provider-patient relationship.
We conclude that appellant's causes of action are barred by the statute of limitations and that the demurrers were therefore properly sustained without leave to amend. In light of this conclusion, appellant's contention regarding the existence of Kaiser's duty to him is moot.
II. Standard of Review
In reviewing the sufficiency of a complaint against a demurrer, we are guided by longstanding principles. A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court's discretion. Therefore, an appellate court employs two separate standards of review on appeal. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.)
First, the complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action. (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279.) In doing so, we accept as true the properly pleaded material factual allegations, together with facts that may be properly judicially noticed. Reversible error exists if facts were alleged showing entitlement to relief under any possible legal theory. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444.)
Second, where the demurrer is sustained without leave to amend, the reviewing court must determine whether the trial court abused its discretion in doing so. (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) It is an abuse of discretion to deny leave to amend if the reviewing court determines that there is a reasonable possibility that the pleading can be cured by amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Regardless of whether a request therefore was made, unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304.) The burden is on the plaintiff to demonstrate in what manner he or she can amend the complaint. It is not up to the judge to figure that out. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Plaintiff can make this showing in the first instance to the appellate court. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
III. Statute of Limitations
A. Background
A summary of the chronology alleged in the FAC germane to the statute of limitations claim is as follows:
Appellant filed his original complaint on September 23, 2009. The FAC was filed on February 25, 2010. It alleged that in May 2005, appellant knew that his social security number had been fraudulently used to obtain credit cards and other credit. He first reported this to the police.
On January 26, 2006, appellant learned that Alfred used one of these fraudulently procured credit cards to obtain a fitness center membership and that he worked for Kaiser at its risk management department at the Walnut Center.
In February through May 2006, appellant exchanged letters with the Kaiser's credentialing department, where Kaiser first asked for his resignation, then told him that his approval to participate at Kaiser continued until November 2006 and finally, a third letter stated that he was then due for reapproval.
On September 28, 2006, the district attorney filed a criminal complaint charging Alfred with multiple offenses including identity theft. On September 25, 2007, Alfred pled no contest to unlawful use of appellant's personal information.
Appellant's opposition to the demurrers that are the subject of this appeal, included his declaration stating that he had inadvertently omitted an allegation from the FAC that on February 12, 2006, the Monrovia police informed him that its investigation indicated that there was no evidence Alfred stole appellant's identity and that the problem was a "credit bureau mistake."
B. Applicable statute of limitations
Code of Civil Procedure section 335.1 provides a two-year statute of limitations for "[a]n action for . . . injury to, or for the death of, an individual caused by the wrongful act or neglect of another." This statute of limitations was intended to apply to all infringements of personal rights, as distinguished from property rights, caused by the wrongful act or negligence of another. (Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 313 [Code of Civ. Proc., § 340, subd. (d), the predecessor of § 335.1, applicable to invasion of privacy].) It applies to claims of negligent and intentional infliction of emotional distress (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 323), among others. Code of Civil Procedure section 335.1 is applicable to each of appellant's causes of action, as they all derive from a breach of appellant's privacy rights to his confidential information.
C. Accrual of cause of action
Statutes of limitations do not begin to run until a cause of action accrues. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox).) A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Code Civ. Proc., § 312 ["Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued"].)
Generally, a cause of action accrues at the time when it is complete with all of its elements. (Fox, supra, 35 Cal.4th at p. 806.) For torts, this usually occurs at the time the alleged tortious act occurs (Howe v. Pioneer Mfg. Co. (1968) 262 Cal.App.2d 330, 339-340) and is triggered on the date of injury, plaintiff's ignorance of which does not toll the statute. (April Enterprises, Inc. v. KTTV(1983) 147 Cal.App.3d 805, 826.)
A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. (See E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1316.) The running of the statute must appear "clearly and affirmatively" from the dates alleged. It is not sufficient that the complaint might be barred. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)
Appellant has alleged that "[i]n May 2005 [his] social security number was fraudulently used to obtain credit" by opening "credit card accounts using [his] social security number." Because that misappropriation was allegedly facilitated by Kaiser, Kaiser's alleged tortuous conduct had also already occurred by May 2005.
To the extent appellant's intentional infliction of emotional distress cause of action is based on Kaiser's failure to inform him that Alfred had obtained appellant's confidential information, the FAC alleges that appellant informed Kaiser in January 2006 of Alfred's involvement and was met with hostility. The fact that Alfred had on his Kaiser computer a fraudulent credit application and appellant's social security number was uncovered during the police investigation.
To the extent that the intentional infliction of emotional distress cause of action was based upon Kaiser's sending letters to appellant seeking to remove him from his position with Kaiser, allegedly for retaliation for his complaints about Alfred, those letters were sent between February and May 2006. The two-year statute of limitations would therefore have run, at the latest, by the end of May 2008, long before the original complaint in this matter was filed.
Hence, absent an applicable tolling principle, the complaint revealed on its face that appellant's causes of action accrued in May 2005 even though appellant was not aware of Alfred's identity or Kaiser's involvement. (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932 (Bernson)[ignorance of the identity of the wrongdoer, the exact manner in which the injuries were effected, and/or of all parties who may have played a role will not toll the statute of limitations].) The two-year statute of limitations would have run by May 2007, more than two years before the original complaint was filed.
D. Delayed discovery defers accrual
1. The delayed discovery exception
An exception to the general rule of accrual is the "'discovery rule,'" which delays accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox, supra, 35 Cal.4th at p. 807.) It applies, for example, where the injury is "silent and insidious." (Warrington v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 564, 569-570.) Here, where the tortious conduct is the use of a person's confidential credit information that might not be known to its owner for some time after it occurs, and the perpetrator may never be known, the delayed discovery doctrine is properly applied.
A plaintiff has reason to discover a cause of action when he or she has reason to at least suspect a factual basis for its elements. (Fox, supra, 35 Cal.4th at p. 807.) A plaintiff is charged with presumptive knowledge of an injury if the plaintiff has "'"information of circumstances to put [the plaintiff] on inquiry"'" or if the plaintiff has "'"the opportunity to obtain knowledge from sources open to [their] investigation."'" (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-897.) In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury and are charged with knowledge of the information that would have been revealed by such an investigation. (Fox, supra, at pp. 807-808.) "[U]nder the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action." (Id. at p. 803.) Hence, accrual of a cause of action is only delayed until the plaintiff has, or should have, inquiry notice of the cause of action. (Id. at p. 807.)
While ignorance of the existence of an injury or cause of action may delay the running of the statute of limitations until the date of discovery, ignorance of the identity of the defendant will not toll the statute of limitations because identity is not an element of a cause of action. (Fox, supra, 35 Cal.4th at p. 807; Bernson, supra, 7 Cal.4th at p. 932.)
2. Pleading the delayed discovery exception
"A plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence." (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160.) The court places the burden on the plaintiff to "show diligence"; "conclusory allegations will not withstand demurrer." (Ibid.) "In order to raise the issue of belated discovery, the plaintiff must state when the discovery was made, the circumstances behind the discovery, and facts showing that the failure to discover was reasonable, justifiable and not the result of a failure to investigate the act." (Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 527 (Bastian))
"Once belated discovery is pleaded, the issue of whether plaintiff exercised reasonable diligence in discovering the negligent cause of the injury is a question of fact." (Bastian, supra, 199 Cal.App.3d at p. 527.) "However, whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law." (Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120, 128 [reversing summary judgment].) Thus, when an appeal is taken from a judgment of dismissal following the sustaining of a demurrer, "the issue is whether the trial court could determine as a matter of law that failure to discover was due to failure to investigate or to act without diligence." (Bastian, supra, at p. 527.)
3. Appellant's FAC
The thrust of appellant's delayed discovery claim is that he did not have sufficient information to file a complaint until September 25, 2007, when Alfred pled no contest to stealing appellant's identity. He claims that only then did he have "proof" of Alfred's responsibility for the wrongdoing and the related responsibility of Alfred's employer, Kaiser. The problems with this argument are that (1) knowledge of the identity of the wrongdoer is not necessary for the statute of limitations to begin running (Fox, supra, 35 Cal.4th at p. 807 [ignorance of identity of wrongdoer does not toll statute of limitations]; Bernson, supra, 7 Cal.4th at p. 932), (2) only a reason to suspect an injury and wrongful conduct, or inquiry notice, is required, unless the plaintiff pleads and proves that reasonable investigation would not have revealed a factual basis for the cause of action (Fox, supra, 35 Cal.4th at p. 803), and (3) the proof beyond a reasonable doubt required for a criminal conviction is not required to establish delayed discovery. Thus, appellant's reliance on the date that Alfred pled no contest as the discovery date is erroneous as a matter of law.
The FAC alleges facts indicating that by January 26, 2006, appellant had exercised due diligence and was rewarded with, at the very least, inquiry notice, as well as every reason to suspect Kaiser's potential involvement in Alfred's tortuous conduct. By that time, appellant knew that (1) he was a patient and employee of Kaiser and thus Kaiser had his social security number and other confidential information; (2) his social security number had been improperly used to obtain credit cards, (3) the perpetrator had used one of the fraudulently obtained credit cards to open a membership at a fitness center, (4) Alfred was the user of one such card, (5) Alfred's work number was a Kaiser number, and his work voice mail message stated, "'[Y]ou have reached David Guerrero of patient business risk management, please leave a message . . . ,'" and (6) Kaiser became hostile to appellant when he requested that Kaiser investigate Alfred.
A month later, he received a letter from Kaiser's credentialing department, at the same location as where Alfred worked, asking for appellant's voluntary resignation of his physician privileges at Kaiser. It appeared to appellant at that time that the timing of the letter was related to his disclosure to Kaiser of Alfred's misuse of appellant's identity.
These facts constituted "discovery," for purposes of the delayed discovery rule. They were sufficient as a matter of law to place appellant on notice of Kaiser's potential involvement, to require him to conduct further investigation and to commence the running of the statute of limitations. The two-year statute of limitations would therefore have run by no later than January 2008, long before the complaint against Kaiser was filed on September 23, 2009.
4. Leave to amend
The FAC does not contain any allegations indicating that further investigation would not have yielded information regarding Kaiser's wrongdoing. (Fox, supra, 35 Cal.4th at p. 803.) However, in support of obtaining leave to amend, appellant filed a declaration in opposition to the demurrers stating that on February 12, 2006, after investigation, the Monrovia police informed him that they could find no evidence appellant had stolen his identity and that the problem was likely a credit bureau mistake because appellant and Alfred shared the same first and last names and middle initial and worked for the same employer.
This information, however, fails to explain why appellant could not have discovered the factual basis for his causes of action against Kaiser with investigation. He fails to allege that he contacted the credit bureaus to determine if there were any errors in its handling of the credit issues. Had he checked with them and confirmed what had occurred, he could have eliminated the possibility of credit bureau mistake. It also fails to allege why he did not continue to monitor whether Alfred was prosecuted for identity theft.
Moreover, the Monrovia police conclusion that the problem was a mistake by the credit agencies and not identity theft was nothing more than the opinion of the police as to appellant's responsibility. It did not negate the information that appellant had personally obtained. Reliance on the opinion of the police did not toll the statute of limitations in the same fashion that reliance on the advice of an attorney did not toll the statute of limitations in Gutierrez v. Mofid, supra, 39 Cal.3d at pp. 895-896. In Gutierrez, a plaintiff complaining of pain in her right side consented to surgery to remove either a tumor or her appendix. When she awoke from her surgery, she discovered that the doctors had performed a complete hysterectomy. (Ibid.)She delayed filing her action because the first attorney she consulted told her there was no provable malpractice. In both cases a third party, not connected with the defendant, gave their opinion regarding culpability. The court in Gutierrez stated: "[W]e are not persuaded that reliance on an attorney's advice postpones the time of 'discovery,' thus extending the limitations period applicable to one who had already come to suspect he is a victim of malpractice. '"Statutes of limitation . . . are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them."'" (Id. at p. 898.)
Moreover, apparently reversing what appellant was told by Monrovia police officers, a criminal complaint was filed against Alfred on September 28, 2006. Inquiry notice is triggered by suspicion. Notice of a cause of action can be based on constructive knowledge of circumstances subject to investigation such as public records. (Quick v. Pearson (2010) 186 Cal.App.4th 371, 378.) "Possession of 'presumptive' knowledge as well as 'actual' knowledge will commence the running of the statute. The applicable principle has been expressed as follows: 'when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation . . ." the statute commences to run. (See Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101.) The prosecution of Alfred in September 2006, was a matter of public record available to appellant had he diligently looked for it.
We therefore conclude that the facts alleged indicate as a matter of law that the statute of limitations had run on appellant's claims and that the FAC could not be amended to avoid the bar of the statute.
DISPOSITION
The judgment is affirmed. Each party is to bear its own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ASHMANN-GERST, J. We concur:
DOI TODD, Acting P. J.
CHAVEZ, J.