Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV-242289
Lambden, J.
Laurie Marie Laskey filed a complaint in propria persona for, among other claims, general negligence, intentional tort, and premises liability against Platt Electric Supply, Inc. (Platt). Platt demurred to her complaint, and the lower court sustained the demurrer with leave to amend on the grounds that all of Laskey’s claims were time-barred. Subsequently, Laskey filed a first amended complaint (FAC). The trial court found that Laskey’s FAC did not cure the defect and sustained Platt’s demurrer to the FAC without leave to amend. Laskey appeals and we affirm the judgment.
BACKGROUND
On January 30, 2008, Laskey filed a complaint for general negligence, intentional tort, premises liability, and products liability against Platt. She also alleged claims for “computer crimes, identity theft, FCC violations, code violations, technical violations, split tunneling, security breach, invasion of privacy, stalking, etc.” Under her claims for general negligence, intentional tort, premises liability, and products liability, Laskey asserted that the date of injury was November 18, 1997.
Platt filed a demurrer against Laskey’s complaint. Laskey did not oppose this demurrer and, on August 15, 2008, the trial court sustained the demurrer with leave to amend. The court noted that Laskey alleged that “the actions which gave rise to her negligence claim, at least, took place in 1997, which would mean that claim and other tort claims would be barred, unless [she] pleads facts demonstrating the causes of action were tolled.”
On August 19, 2008, Laskey filed an FAC against Platt. She alleged claims of general negligence, intentional tort, premises liability, “breach of contract, [and] mass tort....” Under her general negligence claim, she declared that the injury occurred on September 17, 1999. In her negligence claim, Laskey charged that Platt maintained faulty servers, which allowed hackers to get around the system. She further asserted that Platt intentionally saved information on her computer.
Platt filed a demurrer to Laskey’s FAC on September 4, 2008. Platt argued, among other things, that the statute of limitations barred all of Laskey’s claims. Laskey filed no opposition.
On October 27, 2008, the trial court sustained Platt’s demurrer without leave to amend. In the minute order, the court stated the following: Laskey’s FAC “alleges that the negligence of [Platt] that allegedly caused damages to [Laskey] occurred on [September 17, 1999,] at 12:58 p.m. There are no allegations attempting to contend that [Laskey] had no reason to discover the damage allegedly caused by such action until a date within the applicable statute of limitations. [¶] Therefore, [Platt’s] demurrer is sustained without leave to amend.” The court signed the order sustaining the demurrer without leave to amend on November 14, 2008.
Laskey filed her notice of appeal on December 29, 2008.
DISCUSSION
I. Jurisdiction
Laskey appealed from the order sustaining the demurrer and not from the judgment of dismissal since no judgment had been entered at the time she filed her notice of appeal. “An order sustaining a demurrer without leave to amend is not an appealable order; only a judgment entered on such an order can be appealed.” (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331, superseded by statute on another issue.) “The existence of an appealable judgment is a jurisdictional prerequisite to an appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)
Ordinarily we would dismiss this appeal as being premature, but we have the discretion to deem the order sustaining the demurrer without leave to amend as incorporating the judgment of dismissal. (See, e.g., Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 520, superseded by statute on another issue [court has discretion to consider on the merits an appeal from an order sustaining a demurrer without leave to amend].) To avoid delay we deem the order sustaining the demurrer as incorporating the judgment of dismissal and decide Laskey’s appeal on its merits.
II. Standard of Review
The standard of review governing an appeal from the judgment after the trial court sustains a demurrer without leave to amend is well established. “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it 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.)
Additionally, we note that Laskey is in propria persona, but a party appearing in propria persona “is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) “ ‘[T]he in propria persona litigant is held to the same restrictive rules of procedure as an attorney.’ ” (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126; accord, First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)
III. Waiver
Laskey has failed to comply with the rules of appellate procedure. We have warned her in previously unpublished decisions that noncompliance with the rules in the future will result in our dismissing her appeal. Since she filed her opening brief in this matter on May 4, 2009, prior to our issuing a warning to her, we will decide this matter on its merits and not dismiss the appeal. We note, however, that Laskey’s brief in this court violates the California Rules of Court, rule 8.204(a)(1) by not containing a statement of appealability, omitting a table of contents, failing to provide citations to the record, not including a statement of the action’s procedural history, and not containing a summary of significant facts limited to matters in the record. Laskey also has failed to provide any pertinent legal argument and has not explained the relevance of the various federal statutes that she does cite. (See, e.g., Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [“ ‘This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record’ ”].) Failure to articulate any pertinent legal argument may be deemed a waiver or abandonment of the appeal. (See, e.g., In re Sade C. (1996) 13 Cal.4th 952, 994.) As noted, this court will not consider any future briefs filed by Laskey that violate the rules.
IV. Statute of Limitations
The trial court sustained Platt’s demurrer without leave to amend against Laskey’s FAC on the basis that all of her claims were time-barred. For the reasons set forth below, we agree.
In Laskey’s original complaint, she alleged that the date of injury for her claims for general negligence, intentional tort, products liability, and premises liability was November 18, 1997. The trial court sustained Platt’s demurrer to the original complaint with leave to amend. The court ruled that “the actions which gave rise to [Laskey’s] negligence claim, at least, took place in 1997, which would mean that claim and other tort claims would be barred, unless [she] pleads facts demonstrating the causes of action were tolled.”
Rather than plead facts supporting the application of equitable tolling, Laskey simply removed her products liability claim and omitted any reference to any date of injury for her premises liability and intentional tort claims; she also added a breach of contract claim that did not include any date of injury. Under her general negligence claim, she alleged that the injury occurred on September 17, 1999.
We only discuss Laskey’s legally cognizable claims. She also included a “mass tort” claim, but provides no allegations or explanation for this claim.
Generally, after an amended pleading has been filed, courts will disregard the original pleading. (Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 302.) However, an exception to this rule occurs where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. (Ibid.) In such a situation, the court may examine the prior complaint to ascertain whether the amended complaint is merely a sham; the court may read into the amended complaint the allegations of the superseded complaint. (Ibid.)
Laskey’s original complaint alleged that her injury for all of her claims occurred on November 18, 1997. We therefore take judicial notice of these facts.
Statutes of limitations begin to run when a cause of action accrues. (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”]; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) Generally speaking, a cause of action accrues at “the time when the cause of action is complete with all of its elements.” (Norgart, supra, at p. 397.) Here, Laskey stated that she was injured in November 1997.
Laskey’s claims appear to be based on a personal injury and therefore the two-year statute of limitations under Code of Civil Procedure section 335.1 apply. “[T]he nature of a cause of action does not depend on the label the plaintiff gives it or the relief the plaintiff seeks but on the primary right involved.” (Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 427, fn. omitted.) The statute of limitations for property damage is three years. (Code Civ. Proc., § 338, subds. (b) & (c).) To the extent Laskey is alleging or could allege a breach of contract claim, the four-year statute of limitations under Code of Civil Procedure section 337 applies. Additionally, any claim that is not for personal injury or property damage has a four-year statute of limitations under Code of Civil Procedure section 343.
Code of Civil Procedure section 335.1 provides that the time for commencing an action is within two years for an injury to “an individual caused by the wrongful act or neglect of another.”
Since all of Laskey’s claims in her FAC accrued by the end of 1997, she had to file her complaint, at the latest, by the end of 2001 under the longest statute of limitations period of four years. Here, Laskey filed her original complaint on January 30, 2008, long after the statute of limitations had run.
We note that, even if we had used the date set forth in Laskey’s FAC of September 17, 1999, the statute of limitations would have expired on September 17, 2003, under the longest four-year statute of limitations. Since she did not file her original complaint until January 2008, her lawsuit was time-barred even if the alleged injury occurred on this later date.
There are, however, exceptions to the general rule that the claim accrues at the time of injury. One such exception, the discovery rule, postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Norgart, supra, 21 Cal.4th at p. 397.) A plaintiff has reason to discover a cause of action when he or she “has reason at least to suspect a factual basis for its elements.” (Id. at p. 398.) Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. (Id. at p. 398, fn. 3.)
Laskey needed to plead the following facts to show the application of the discovery rule: “ ‘ “(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” [Citation.] In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to “show diligence”; “conclusory allegations will not withstand demurrer.” ’ ” (Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 638.) Laskey asserted in her FAC that Platt’s negligence “created a hard to diagnose problem and/or mass tort.” She further alleged that Platt “maintained faulty servers which create hard to diagnose problems.” These statements meet neither of the requirements cited above and are insufficient to invoke the delayed discovery rule.
Further, in her brief in this court, Laskey does not provide any information about when she discovered the injury or any reason for failing to discover the injury earlier despite reasonable diligence. Rather, she simply states in her opening brief: “Plaintiff also suffers from delayed discovery realization. Defendant told plaintiff other facts to mislead plaintiff and prevent plaintiff from discovering the concealed or suppressed facts. Plaintiff was induced to further discovery. The doctrine of equitable tolling and estoppels applies.” These conclusory statements are insufficient to show that the discovery rule applies.
Finally, in her opening brief in this court, Laskey makes a passing reference to the doctrines of equitable tolling and equitable estoppel. These doctrines also may toll the statute of limitations.
“[T]he three elements of equitable tolling are ‘(1) that defendant received timely notice in pursuing the first remedy, (2) there is a lack of prejudice to the Defendant in gathering evidence to defend against the second action, and (3) there is good faith and reasonable conduct by plaintiff in filing the second action.’ ” (Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434.) In her pleadings and in her briefs in this court, Laskey makes no allegation that she pursued an alternate remedy in good faith and therefore this doctrine does not apply.
“ ‘ “Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and, (4) he must rely upon the conduct to his injury.” ’ ” (Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1268.) Other than allege in her opening brief in this court that equitable estoppel applies, Laskey alleges no facts that satisfy any of the elements of equitable estoppel.
We conclude that all of Laskey’s claims are time-barred as a matter of law and therefore the lower court properly sustained Platt’s demurrer against her FAC without leave to amend.
DISPOSITION
The judgment is affirmed. Platt is awarded costs.
We concur: Kline, P.J., Richman, J.