Opinion
A145482
03-29-2018
RONALD HOGAN, et al., Plaintiffs and Appellants, v. STATE FARM GENERAL INSURANCE COMPANY, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV254820)
In 2000, Ronald and Victoria Hogan (the Hogans or plaintiffs) purchased a home on Gardenview Place in Santa Rosa. After discovering the developers and realtors had concealed material defects, they filed a complaint in 2002, seeking both rescission of the purchase agreement and legal damages. The rescission was confirmed in 2004 and, in 2007, the trial court entered judgment requiring the Hogans to return the property in exchange for consequential damages. In 2009, this court affirmed the judgment, confirming once and for all that the Hogans had, in 2002, effected a unilateral rescission which they were not free to revoke. (Hogan, et al. v. DeAngelis Construction, Inc., et al. (A117321, A118257, A120840, May 20, 2009) [nonpub. opn.] (Hogan I).) That decision was final on August 31, 2009.
More than a decade after they rescinded the purchase agreement, the Hogans allegedly "discovered" they were also entitled to rescind certain homeowners' insurance policies, which they had purchased for the property since 2000. In 2012, the Hogans advised their insurer, State Farm General Insurance Company (State Farm), that they had paid the premiums by mistake, desired a refund, and hoped to avoid "a lawsuit or legal fees for such a modest amount at issue." State Farm refused to provide any refund, and the Hogans filed this action on December 31, 2013.
State Farm demurred, including on statute of limitations grounds, to the operative Second Amended Complaint (SAC). The trial court sustained the demurrer without leave to amend, and the Hogans appealed.
We affirm. The Hogans' own complaint admits that in 2002 they were aware of facts supporting their right to rescind the Gardenview purchase agreement and alleges that those same facts support their claim to rescind the insurance policies. Thus, the Hogans' rescission claims are barred as a matter of law.
I. FACTUAL AND PROCEDURAL BACKGROUND
We will not restate the entire procedural history of the underlying case, Hogan v. DeAngelis Construction, Inc., et al. (hereinafter DeAngelis), which is set forth in our prior appellate decisions. However, as the SAC relies heavily on this history—both to support the rescission claim and in an attempt to toll the statute of limitations—we recite here the facts from our prior decisions which are essential to deciding this appeal. These and other judicially-noticeable facts, as well as the allegations of the SAC, are presumed true for purposes of the demurrer. (See Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.)
Including, inter alia, Hogan I, supra; Hogan, et al. v. DeAngelis Construction, Inc., et al. (A128451, A130351, April 18, 2012) [nonpub. opn.] (Hogan II); Hogan, et al. v. DeAngelis Construction, Inc., et al. (A138118, Jan. 13, 2016) [nonpub. opn.] (Hogan III); and Hogan, et al. v. DeAngelis Construction, Inc., et al. (A143637, Jan. 13, 2016) [nonpub. opn.] (Hogan IV).
The Hogans challenge the trial court's decision to take judicial notice of certain documents from the underlying DeAngelis action. The trial court took judicial notice of Exhibits A, B and C, which consist of the superior court docket and our opinions in Hogan I and Hogan II, respectively. This was not error. (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457; In re Tanya F. (1980) 111 Cal.App.3d 436, 440.) The existence of these documents and the statements made therein (regardless of their truth) bear on what the Hogans knew about their claim for rescission and when they knew it. Moreover, there is no dispute, genuine or otherwise, regarding the existence and timing of the court actions and rulings in DeAngelis.
Since we do not rely upon Exhibits D, E, or F (records in the Hogans' bankruptcy proceedings), we need not address whether the trial court erred in judicially noticing them.
A. The Underlying Rescission Action as Described in Hogan I and Hogan II
After discovering substantial defects in the Gardenview property, the Hogans filed the DeAngelis complaint on August 23, 2002 against the developers and realtors, alleging numerous causes of action, including rescission. In 2003, the developer defendants formally accepted rescission. In 2004, the developers' "Petition to Confirm Acceptance of Offer to Rescind Contract and to Dismiss Action" was granted over the Hogans' objections.
Trial commenced in 2006. The jury found the developers liable for consequential damages, which were offset against certain costs incurred by the developers, such as the fair rental value of the property. The realtors were found liable for breach of contract and, together with the developers, for intentional concealment. Judgment was entered, corrected, and then amended in 2007. As amended, the DeAngelis judgment required the developers to pay consequential damages and assume the existing mortgage debt, and the Hogans to return the property to developers. Both sides appealed.
In deciding the parties' respective appeals, our May 2009 opinion in Hogan I addressed various issues. The developers argued "that the amended judgment must be corrected to clarify that the Hogans must return the Gardenview property as a condition of obtaining relief based on rescission." (Hogan I, supra, at p. 17.) We concluded no correction is necessary as "the amended judgment clearly does require the Hogans to return the Gardenview property." (Ibid.)
The Hogans challenged the judgment for rescission. (Hogan I, supra, at pp. 19-32.) We rejected that challenge, stating that "a straightforward application of the rescission statutes compels the conclusion that the Gardenview property purchase agreement was unilaterally rescinded by the Hogans" in 2002, when the DeAngelis complaint was served on the developers. (Id. at pp. 22-23.) We likewise rejected the Hogans' various attempts to withdraw, revoke or otherwise invalidate the rescission. (Id. at pp. 25-30.) In addition, we considered the nature and amount of damages awarded and remanded for the trial court to correct and clarify certain provisions of the judgment. (Id. at pp. 47-57.) The remittitur issued and Hogan I was final on August 31, 2009.
Two years later, we decided a second round of appeals. (Hogan II, supra.) We considered, and affirmed, the trial court's refusal to "correct" the judgment to provide for additional post-judgment damages, including "mortgage payments, property taxes, insurance and homeowners associations dues that the Hogans paid after entry of the original judgment." (Hogan II, supra, at p. 28.) We also rejected the Hogans' argument they had "incurred these additional expenses in order to protect their interest in the Gardenview property." (Id. at pp. 28-29.) Indeed, we expressed our "dismay[] to learn that the Hogans continue to retain possession of the Gardenview property." (Id. at p. 2.)
We wrote that the Hogans "did not seek to have these additional damages included in the modified judgment pursuant to their motion to correct" the judgment and did not provide authority allowing an award of prospective damages that were not actually awarded in the judgment. (Ibid.)
B. The Hogans' Allegations in the Current Lawsuit Against State Farm
We now turn to the allegations in the SAC. In response to our decision in Hogan II, the Hogans—instead of returning their property and collecting their damages—stopped paying the mortgage. (SAC ¶ 46.) Foreclosure proceedings commenced. (SAC ¶¶ 50-55.) On December 31, 2013, the Hogans filed the original complaint in this action against their lenders, loan servicing companies, trustees, and insurer State Farm, seeking to collect the post-judgment "losses" we had ruled in Hogan II were not available as damages in the underlying rescission action. (SAC ¶¶ 56, 59.) The only claim asserted against State Farm in the SAC is the eighth cause of action, which seeks to rescind insurance policies issued by State Farm on the property from 2000 to 2013, to recover premiums paid during that period, and an award of "treble damages" for "STATE FARM's receipt and withholding of stolen property under Section 496 of the Californa [sic] Penal Code." (SAC ¶¶ 130-132, 161.)
In its title, the rescission claim recites "Failure of Consideration, Public Policy or Mistake." (SAC p. 47.) However, the 35 lengthy paragraphs comprising this cause of action make no mention of "public policy" or related facts. Nor do the Hogans' briefs, below or on appeal, explain the factual or legal basis for a public policy claim.
The SAC alleges that the basis for rescission is rooted in the same facts warranting rescission of the purchase agreement for the Gardenview property. "[O]nce the sales contract was rescinded Plaintiff Ron Hogan was not responsible for any expenses related to the [property] including home insurance . . . ." (SAC ¶ 145.) Thus, the Hogans allege, they "should not have paid for home insurance after August 2002 when the underlying complaint [in DeAngelis] was served." (SAC ¶ 146.)
The SAC alleges that they were aware of the facts supporting their right to rescind the property purchase agreement in 2002, as those facts were set forth in the DeAngelis complaint. (SAC ¶ 134.) It acknowledges that the trial court confirmed the rescission of the Gardenview purchase in 2004, and that we affirmed that decision in 2009, finding the rescission irrevocable. (SAC ¶ 148.) And it admits that, "[c]onsistent with that Hogan 1 opinion affirming rescission, HOGANS should not have paid for home insurance after August 2002 when the underlying complaint was served." (SAC ¶ 146.) Yet the Hogans paid State Farm for nearly four more years, through April 16, 2013, and delayed in demanding rescission until December 31, 2013. (SAC ¶¶ 57, 131, 146.)
The Hogans attribute their delay, first, to the fact they "were unaware that they were unilaterally rescinding by serving their complaint on the defendants in 2002." (SAC ¶ 147.) Rather, in DeAngelis they allegedly prayed for "rescission as a remedy in the alternative," believing they had "a choice of remedy at the end of trial," when in fact, they learned from "the Appellate Court decision in 2009 [Hogan I] that they had elected a remedy in 2002." (SAC ¶¶ 147-148.)
The Hogans also allegedly continued to pay home insurance premiums after 2002 because, in DeAngelis, the defendants did not accept rescission or make a real property claim in their answer to the complaint (SAC ¶ 147); there was "controversy . . . as to whether a rescission occurred, what type of rescission it was, and when it occurred" (SAC ¶ 146); once rescission was affirmed by the trial court, "there was to be a trial to establish the consequential damages, rights and obligations of the parties" (SAC ¶ 148); and, after trial, a host of trial court decisions (which preceded Hogan I) allegedly led the Hogans to believe they retained an ownership interest in the Gardenview property (SAC ¶¶ 149, 152).
These post-trial decisions include the 2007 "stay order," in which the court granted plaintiffs' motion for a stay of enforcement of judgment without requiring the Hogans to post an appellate undertaking. (SAC ¶¶ 30, 149, 155-156.) In seeking the stay, the Hogans' motion had "detailed the expenses of the property expected for the two years during the appeal including home insurance and assumed that all such outlays would be reimbursed . . . after appeal." (Ibid., italics added.) They also included an order expunging a lis pendens which the Hogans took to be "a special determination that DeANGELIS had no [legal] interest" in the Gardenview property. (SAC ¶¶ 23, 32, 34, 149, 152.) The Hogans allege they similarly relied upon a 2008 decision to deny the defendant's motion to record the amended judgment and impose sanctions to mean they should continue to carry homeowner's insurance. (SAC ¶¶ 33, 149.)
It was not until July 12, 2012, when Hogan II was final, that plaintiffs allegedly "discovered the facts that required a rescission of the State Farm policy." (SAC ¶ 155.) They allege that, until that point, they did not appreciate that their ongoing post-judgment costs (including homeowner's insurance premiums) could not be collected as damages in DeAngelis. (SAC ¶¶ 155-156.) This "created damages for unjust enrichment" and entitled the Hogans "to restitution of those funds" from State Farm. (SAC ¶ 158.)
The Hogans then advised State Farm's agent that "they had learned that they had paid the premiums for years in error" and demanded a refund. (SAC ¶ 136.) State Farm declined, and this lawsuit followed. (SAC ¶¶ 136-141, 157.)
C. State Farm's Demurrer to the Eighth Cause of Action
Although State Farm also demurred to the first through seventh causes of action for failure to plead any charging allegations against State Farm and the court sustained the demurrer to those claims, the Hogans do not challenge this aspect of the trial court's ruling.
State Farm demurred to the rescission cause of action on numerous grounds, including that it is barred by the four-year statute of limitations. According to State Farm, the allegations and judicially-noticed facts established that the statute of limitations began to run in 2002, and no later than August 2009. These include the allegation that plaintiffs' right to rescind against State Farm arose from the rescission of the underlying purchase agreement and the Hogans admitted knowledge of the facts supporting rescission of the purchase agreement in 2002, which facts were affirmed in 2004, when the rescission was confirmed by the trial court, and in July 2009, when this court affirmed the rescission and required the Hogans to vacate the property in Hogan I. Because the Hogans waited to demand rescission until December 31, 2013, their complaint was filed after the four-year statute of limitations had run.
Additional grounds for demurrer not addressed in this opinion included: that rescission does not lie because it is impossible for plaintiffs to return the benefits they received from State Farm; that, because the Hogans had an insurable interest in the property, the alleged mistake did not relate to any "basic assumption" of the insurance contract; that, as between the parties, the Hogans "bore the risk" of their mistake because only they knew the ownership status of the property; and that enforcement of the agreement to provide insurance is fair and not unconscionable.
In support of its demurrer, State Farm relied upon the facts pleaded in the SAC and requested judicial notice of, inter alia, the docket in DeAngelis and the Hogan I and Hogan II decisions.
The Hogans opposed State Farm's statute of limitations argument on the grounds that "the parties are different, and the timeframes are not the same"; and they contended that the two rescission claims implicated different "primary rights" and demanded distinct remedies.
The trial court found the SAC to be "replete with allegations that indicate that the Plaintiffs were on notice" of the factual basis for their rescission claims "from at least 2004" and ruled the claim to be time-barred. On this ground and others, the demurrer was sustained without leave to amend.
The trial court also concluded that the SAC did not plead sufficient facts to state a claim, as it stated no facts to support unconscionability or to suggest that State Farm bore the risk of mistake. Because we conclude that the claim is time-barred as a matter of law, we need not address these other bases for the trial court's ruling.
II. DISCUSSION
A. Standard of Review
We review the trial court's order sustaining the demurrer de novo, "exercising our independent judgment about whether the complaint states a cause of action as a matter of law. [Citations.]" (Chiatello v. City & Cty. of San Francisco (2010) 189 Cal.App.4th 472, 480.) " ' " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]' " ' " (Ibid.) We also consider matters subject to judicial notice. (Ibid.) We must construe the complaint in a reasonable manner, reading it as a whole and its parts in their context. (Ibid.) Likewise, we assume the truth of facts that are reasonably implied or inferred from the express allegations. (Ibid.) However, we may disregard "mere contentions," or allegations contradicted or negated by judicially-noticed facts. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20.)
When a demurrer "is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
With these standards in mind, we consider whether the Hogans have stated, or can state, a cause of action. We must affirm the judgment if any one of the several grounds of the demurrer is well taken. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 391.)
Although the Hogans appear in propria persona, they are entitled to the same, but no greater, consideration than other litigants and attorneys. (Stokes v. Henson (1990) 217 Cal.App.3d 187, 198.) While we have attempted to decipher the Hogans' contentions and construed their pleadings liberally, as with any litigant we are " 'not required to search the record on [our] own seeking error.' " (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) In the absence of cogent legal argument, supporting authority or citation to the record, we may treat a contention as waived. (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, fn. 10 (Parisi).)
B. Law Governing Statute of Limitations for a Rescission Claim
An "action based on the rescission of a contract in writing" is subject to a four-year statute of limitations. (Code Civ. Proc., § 337 subd. (3); Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 873.) The time "begins to run from the date upon which the facts that entitle the aggrieved party to rescind occurred." (Code Civ. Proc., § 337, subd. (3).) When rescission is grounded in fraud or mistake, the time does not begin to run "until the discovery by the aggrieved party of the facts constituting the fraud or mistake." (Ibid.)
Under well-established case authority, "it is the discovery of facts, not their legal significance, that starts the statute." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1113 (Jolly).) As such, " '[i]t is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action.' " (65 Butterfield v. Chicago Title Ins. Co. (1999) 70 Cal.App.4th 1047, 1054 (65 Butterfield), citing Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898; see also Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 956 (Bank of New York Mellon) [party cannot delay accrual of statute of limitations based upon erroneous legal argument].)
Courts have construed an identically-worded statute of limitation to incorporate the concepts of reasonable diligence and constructive knowledge. (See Code Civ. Proc., § 338, subd. (d) [delaying accrual of the cause of action for relief based upon fraud or mistake "until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake"]; Sun 'n Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671, 701 (Sun 'n Sand) [applying section 338, employer could not claim delayed discovery of fraud which would have been easily discovered, had it examined its bank statements with reasonable care]; Bank of New York Mellon, supra, 8 Cal.App.5th at pp. 956-957 [delayed discovery defeated where party's escrow agent had knowledge of facts establishing possible dispute regarding lien priority].) Thus, a person in possession of the facts may not claim delayed discovery due to his negligent failure to heed those facts. (Sun 'n Sand, supra, at p. 701.) Even constructive knowledge of facts suggesting possible wrongdoing and harm will trigger the statute. (Bank of New York Mellon, supra, at pp. 956-957.)
C. Plaintiffs' Claim for Rescission is Time-Barred
As we have explained, the SAC pleads that after the underlying purchase agreement was rescinded in 2002, the Hogans mistakenly paid for homeowner's insurance. (SAC ¶ 146.) The SAC also concedes, however, that the Hogans knew the DeAngelis complaint, filed in in 2002, pleaded facts to support rescission; knew that the trial court confirmed the rescission in 2004; and knew this court had affirmed the rescission (and judgment therefor) in 2009—yet continued to pay for the homeowners' insurance policy they now seek to rescind. (SAC ¶¶ 17, 134, 146, 148.) These admissions compel the conclusion that the statute of limitations on their rescission claims against State Farm started to run in 2002, or at the very latest, on August 31, 2009, when the Hogans admit Hogan I was final. (SAC ¶ 36.) (Code Civ. Proc., § 337, subd. (3) [in case of mistake or fraud, statute begins to run when the party discovers "the facts constituting the fraud or mistake," italics added]; Jolly, supra, 44 Cal.3d at p. 1113 ["it is the discovery of facts, not their legal significance, that starts the statute"].) The Hogans, however, did not file this lawsuit seeking rescission of the insurance policies until December 31, 2013. (SAC ¶ 56.)
Seeking to avoid the statutory bar, the Hogans allege that they did not understand the significance of the facts known to them in 2002 and that, from 2002 to 2012, they relied upon a host of decisions by the developer defendants and the trial court in failing to rescind the insurance policy. (SAC ¶¶ 146-155.) As we explain, these allegations are unavailing.
First, the Hogans contend that in 2002 they "were unaware that they were unilaterally rescinding by serving their complaint" in DeAngelis and electing their remedy. (SAC ¶¶ 147-148.) However, this does not vitiate their admitted knowledge, in 2002, of the facts supporting a right to rescind the State Farm insurance policies. The Hogans' failure to appreciate the legal significance of those facts cannot, as a matter of law, toll the statute of limitations. (Jolly, supra, 44 Cal.3d at p. 1113.)
Second, the Hogans allege they relied upon the trial court's 2007 order to stay enforcement of the judgment pending appeal without requiring the Hogans to post any additional undertaking. (See fn. 5, ante.) However, the Hogans misconstrue this ruling, which did not order, let alone suggest, that the Hogans would later be able to recoup post-judgment expenses such as insurance premiums. In any event, this excuse for delay is not ignorance of the facts, but of their legal remedies, which does not toll the statute of limitations. (65 Butterfield, supra, 70 Cal.App.4th at p. 1054.)
The cited order was expressly limited to the issues of the stay and undertaking. (See June 27, 2007 order [stating the motion was "granted in that Plaintiffs need post no additional undertaking" pending appeal], italics added.)
Third, the Hogans allegedly construed a post-trial order expunging a lis pendens as a "special determination that DeANGELIS had no legal interest in 2014 Gardenview Place" and drew similar inferences from a "decision to deny with sanctions the defense motion to record the June 2007 Amended Judgment." (SAC ¶ 149.) Putting aside the fact that the Hogans' interpretation of these court orders is patently unreasonable, the excuse—their failure to appreciate the legal implications of known facts—does not, as a matter of law, toll the statute. (Bank of New York Mellon, supra, 8 Cal.App.5th at p. 956; see also North Star Reinsurance Corp. v. Superior Court (1992) 10 Cal.App.4th 1815, 1822-1823 [statute not tolled where plaintiff in possession of letter setting forth insurance policy exclusions affecting plaintiff's insurance claims failed to recognize the legal significance of the exclusions].)
The lis pendens was expunged because the developer defendants had not "asserted a real property claim in their pleadings." (SAC ¶¶ 19, 32.) Nowhere did the order (which is quoted in its entirety in the SAC) address the parties' respective legal interests in the property. (SAC ¶¶ 24, 152.) Nor did it revoke or undermine the effectiveness of plaintiffs' rescission. (Ibid.)
Likewise, the court order on defendant's motion to record the judgment, which the SAC quotes in full, does not address the question of property ownership or the ongoing validity of the judgment for rescission; it merely denied the motion as supported by "insufficient authority." (SAC ¶ 33.)
In sum, any alleged "controversy" relating to the date and effectiveness of the rescission in DeAngelis did not concern the facts, but the legal implications of those facts. Moreover, any such controversy was finally put to rest when the remittitur was issued in Hogan I on August 31, 2009. Thus, even assuming the statute of limitations did not begin to run until August 31, 2009, the Hogans' complaint against State Farm was still untimely filed.
Finally, the Hogans argue that the trial court's ruling did not address all of the grounds pleaded for their rescission claim, including failure of consideration and "public policy." The order however states that these two theories were likewise time-barred. In any event, neither the SAC nor the Hogans' briefs differentiate among the factual allegations supporting their various theories for rescission. (Parisi, supra, 5 Cal.App.5th at p. 1226, fn. 10 [absence of cogent legal argument treated as waiver].) And the Hogans admitted below that, as pleaded, all three theories are grounded in the same facts. (Plaintiffs' Brief in Opposition to Demurrer at p. 13:17-19.) Thus, the trial court correctly found all three theories to be barred by the statute of limitations.
D. There is No Reasonable Possibility of Curing by Amendment
We will only reverse the trial court's order sustaining a demurrer if there is a reasonable possibility that the pleading can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The Hogans present what amounts to little more than an enumerated laundry list of proposed amendments to the SAC. Indeed, their cavalier attitude about amending the complaint is summed up in their opening brief on appeal, in which they state that they "threw out a number of ideas if the [trial] Court decided rescission on the basis of mistake was not the right fit." These "ideas," however, are not persuasive.
Initially, the Hogans assert they could amend their rescission claim for "failure of consideration" to allege that the developer defendants (not the Hogans) received the "peace of mind" paid for by the Hogans. Similarly, they propose to allege an "unjust enrichment" claim, in particular, that they "did not owe the debt" to State Farm and that it was "unjust" for State Farm to retain their payments. They also offer to plead a claim for treble damages under Penal Code section 496. As described, however, the proposed amended claims would still rest upon the same facts already pleaded and would thus be barred by the statute of limitations.
Further, the Hogans' proposed theories for tolling the statute of limitations on an unjust enrichment claim are ambiguous, conclusory, and unsupported by a single legal authority. (Parisi, supra, 5 Cal.App.5th at p. 1226, fn. 10.) --------
The Hogans also argue they could pray for the imposition of a constructive trust or for "restitution under a theory of Unjust Enrichment based on mistake." These, however, are merely new remedies for the same (time-barred) claims. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 76.)
The Hogans assert they could amend to add State Farm to their UCL claim. As presently pleaded, however, the UCL cause of action alleges wrongful practices in foreclosing on the property. The Hogans identify no factual allegations suggesting that State Farm (which merely provided homeowner's insurance to the Hogans) had any involvement in the foreclosure process.
The Hogans' suggestion that they could plead a breach of fiduciary duty claim, "given the special relationship they had with the insurance company and its agents" is also unavailing, for several reasons. First, that is the sum total of their argument, which is supported by no legal authority. (Parisi, supra, 5 Cal.App.5th at p. 1226, fn. 10.) Further, they fail to recite any facts showing that State Farm owed them any special duty, or the breach of that duty, or cite legal authority allowing deviation from the general rule that the insurer is not the fiduciary of the insured. (E.g., Morris v. Paul Revere Life Ins. Co. (2003) 109 Cal.App.4th 966, 973; Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1148-1149.) Perhaps most importantly, the Hogans admit actual notice, from 2002 to 2009, of the material facts underlying their claim. As a matter of law, they were not free to ignore those facts in purported reliance upon unspecified representations by their "fiduciary." (Miller v. Bechtel Corp., supra, 33 Cal.3d at p. 875; Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 55 & fn. 10.)
Finally, in their reply brief, plaintiffs argue that a reasonable investigation would not have revealed their claims against State Farm before 2012. This contention is irrelevant where plaintiffs' SAC admits they possessed all of the information necessary to discern their right to rescind between 2002 and 2009. (See, e.g., Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 334 [where facts underlying claim were known to plaintiffs, discovery rule did not toll statute].)
As the Hogans have not met their burden to show that they can amend to cure the deficiencies in the complaint, we deny leave to amend.
III. DISPOSITION
The trial court's order sustaining State Farm's demurrer without leave to amend is affirmed. State Farm shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.