Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC410763, Peter D. Lichtman, Judge.
Johnson & Johnson, Neville L. Johnson, Douglas L. Johnson and James T. Ryan for Plaintiff and Appellant.
Egan O’Mally & Avenatti, Jason M. Frank and Scott H. Sims; AT&T Services, Inc. Legal Department and Gleam O. Davis for Defendant and Respondent.
BIGELOW, P. J.
This appeal arises from a lawsuit brought about by the actions of a private investigator, Anthony Pellicano. Robert S. Rein, sued Pellicano, the lawyers who hired him, and Pacific Bell Telephone Company (PacBell). Rein alleges the defendants recorded confidential telephone conversations he had with the former wife of Kirk Kerkorian about a child support matter. Here, we deal only with PacBell, which filed a demurrer arguing that Rein’s claims were barred by the statute of limitations. The trial court sustained PacBell’s demurrer without leave to amend and dismissed Rein’s action against PacBell. Rein appeals and we affirm.
FACTS
In accord with the usual standard of review from a ruling on a demurrer, we deem the facts alleged in the operative pleading to be true, and we do not consider the plaintiff’s possible inability to prove the claims at trial. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.) With this standard in mind, these are the material facts in this case:
Rein is an attorney. During a time frame from March 15, 2002, to May 16, 2002, Rein had confidential telephone conversations with Lisa B. concerning a child support matter between Ms. B. and her former husband, Kirk Kerkorian. Unbeknownst to Rein, Kerkorian’s lawyers had conspired with Pellicano to place an illegal wiretap on Ms. B.’s telephone line, and a number of Rein’s confidential conversations with Ms. B. were intercepted and recorded. PacBell employees provided assistance to Pellicano that allowed him to put the wiretap on Ms. B.’s telephone line.
The Operative Pleading
In April 2009, Rein filed a complaint for statutory, special and general damages against Pellicano, the lawyers who hired him, and PacBell. In July 2009, Rein filed his operative first amended complaint (FAC). Pellicano and the lawyers were not involved in the trial court proceedings on PacBell’s demurrer, and they are not involved in the current appeal, and we limit our discussions of the defendant parties to PacBell, except where needed for clarity. Rein’s FAC alleged six causes of action, listed respectively, as to PacBell: unlawful wiretapping (Pen. Code, §§ 631 & 637.2 [authorizing a civil action]); unlawful eavesdropping (§§ 632 & 637.2); common law “intrusion;” violation of the state constitutional guarantee of privacy; negligent maintenance of private telephone records; and negligent supervision of employees.
Rein’s FAC explained the seven-year gap from PacBell’s alleged wrongdoing to the commencement of his action in the following allegations:
“32. In mid-June, 2008, FBI Agent, Corrie Lyle, contacted Mr. Rein and told him that his telephone conversations with [Ms. B.] had been secretly recorded. This was the first time that Mr. Rein became aware that his telephone conversations with [Ms. B.] had been eavesdropped and/or wiretapped. Agent Lyle asked to meet with Mr. Rein to discuss the matter further. On June 26, 2008, Mr. Rein met with Agent Lyle and another Agent, at which point they played a few of the recordings for Mr. Rein. The recordings were of conversations between [Kerkorian’s lawyer] and Mr. Pellicano in which Mr. Rein’s conversations with [Ms. B.] were discussed.
“33.... Mr. Rein did not discover, and could not in the exercise of reasonable diligence have discovered, the facts constituting his causes of action again Defendants based upon illegal wiretapping and/or eavesdropping at any date earlier than June, 2008.
“34. Mr. Rein had no knowledge of what conversations had been wiretapped and/or eavesdropped other than what he read in the newspaper. There was nothing in the newspapers that he read that led him to believe, or provided facts that would put him on inquiry notice, as to whether any of his conversations with [Ms. B.] had been wiretapped and/or eavesdropped. Mr. Rein never read [an Indictment filed against Pellicano], and [Rein’s] name was not stated therein. Consequently, he had no reason to believe that his conversations with [Ms. B.] had been recorded. While there is a reference in the... Indictment to the wiretapping of conversations between [Ms. B.] ‘and her attorneys’, it was assumed that these reference to [Ms. B.’s] ‘attorneys’ meant her attorneys of record in the child support litigation, Stephen Kolodny, and members of his firm. The... Indictment refers to events transpiring in the child support litigation, and Mr. Rein was not counsel of record in this litigation. Mr. Rein had no knowledge or experience concerning wiretapping and eavesdropping, and did not know or have reason to believe that Mr. Pellicano’s wiretaps included all of [Ms. B.’s] telephone conversations, not just the ones referenced in the... Indictment.
“35. Further, Mr. Rein did not and could not have through the exercise of reasonable diligence discovered that Defendants wiretapped and eavesdropped upon his telephone conversations because Pellicano’s trademarked [sic] method of wiretapping, i.e. connecting to a telephone line outside a house, intercepting signals, and forwarding the signals to Pellicano’s office or another location where he could monitor and record those conversations, was a virtually undetectable system, which was designed to, and in fact did, conceal Pellicano’s, and thus Defendants’, illegal activity from their victims.”
The Demurrer
In September 2009, PacBell filed a demurrer to Rein’s FAC. PacBell’s demurrer argued that Rein’s claims were barred by the statute of limitations. PacBell supported its demurrer with a request for judicial notice of the existence of publicly disseminated news reports, and of court filings and orders in a number of cases filed earlier also involving claims of wrongdoing by Pellicano, the lawyers who hired him, and PacBell.
In late September 2009, Rein filed his opposition to PacBell’s demurrer, including objections to a number of items in the company’s request for judicial notice. Rein argued his complaint showed he could not have “uncovered a basis for [his] claims in 2006 [through the exercise of] reasonable diligence....” Rein’s opposition rested on his arguments that (1) the allegations in his complaint were sufficient to “establish that no reasonably prudent person knowing what [he] knew would have [had] reason to suspect that he had been wiretapped;” and (2) his allegations were sufficient to show the statute of limitations were equitably tolled as to PacBell.
On November 4, 2009, the trial court heard argument on PacBell’s demurrer and took the matter under submission. On February 2, 2010, the court entered a 15-page typed order sustaining PacBell’s demurrer without leave to amend and dismissing Rein’s FAC as to PacBell.
Rein filed a timely notice of appeal.
DISCUSSION
I. The Tolling Issue
Relying on American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 (American Pipe), Rein first contends the statute of limitations period was tolled by a class action that had been filed in September 2006. Rein alleges the class action claims against PacBell were similar to Rein’s wiretapping claims in his own action. The trial court found otherwise and we find no error in its ruling on the issue.
The Kasper Class Action
In February 2006, federal prosecutors unsealed an indictment alleging dozens of wiretapping and conspiracy counts against Pellicano and the lawyers who had employed him. A multitude of civil lawsuits were thereafter filed seeking damages allegedly caused by Pellicano’s activities. In September 2006, a class action complaint –– known as the “Kasper class action” –– was filed against PacBell on behalf of persons whose telephone calls were allegedly intercepted by Pellicano’s wiretapping, accomplished through the aid of PacBell employees. (Kasper v. Pacific Bell Telephone Company (Super. Ct. L.A. County, No. BC358270).) The Kasper class action prayed for statutory damages for each intercepted telephone call, and “general and special damages according to proof, ” based on five causes of action, listed respectively, as follows: unlawful eavesdropping (Pen. Code, § 632); violation of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) based on the underlying illegal wiretapping; invasion of privacy as guaranteed by state common law and the state Constitution; negligent maintenance of telephone records; and negligent supervision. The Kasper class action sought relief on behalf of a class of: “All residents of the State of California who had their telephone calls eavesdropped and/or recorded by and through a conspiracy including... Pellicano and employees of [PacBell]....”
The Kasper class action was originally filed under another case number. All of the cases involving claims related to Pellicano have been assigned to a common trial court judge. They are being addressed under a common case number and name, collectively known as the In re Pellicano Cases (Super. Ct. L.A. County, No. BC316318).
In April 2009, while the Kasper class action was still pending, Rein commenced his current action against PacBell. In July 2009, Rein filed his operative FAC.
Analysis
As noted, Rein’s argument that the Kasper class action equitably tolled the limitations period in his own action is based on American Pipe, supra, 414 U.S. 538, a case involving statute of limitations issues in an action alleging “rigged” bids on construction products. In American Pipe, the federal government filed a civil action under the Sherman Act against a number of individuals and companies in March 1964. In late May 1968, the federal action settled by a consent decree. Just short of one-year later, in May 1969, Utah filed a class action complaint under the Sherman Act. In December 1969, Utah’s motion for class action status was denied. Within days, more than 60 towns, municipalities, and water districts filed motions to intervene in Utah’s action in their own right. The question presented was whether the moving parties’ attempts to intervene, that is, their attempts to pursue their claims in their own right, were timely.
The Supreme Court held that the intervention was permissible even though it had been more than a year after the statute of limitations had begun to run because the statute was tolled when the class action was filed. (American Pipe, supra, 414 U.S. at p. 554.) The court stated: “[A]t least where class action status has been denied solely because of failure to demonstrate that ‘the class is so numerous that joinder of all members is impracticable, ’ the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” (Id. at pp. 552-553.) In a later case involving the federal Civil Rights Act of 1964, the Supreme Court ruled that the tolling rule applies not only to intervenors, but also to class members who want to bring their own separate actions. (Crown, Cork & Seal Co. v. Parker (1983) 462 U.S. 345, 349-354.) The basic tenet for this tolling rule is that statutes of limitations “are intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights... but these ends are met when a class action is commenced.” (Id. at p. 352, citations omitted.) American Pipe and its progeny dictate that, in the context of federal law claims, an individual’s claims are tolled during a time frame that begins on the date a class action purportedly covering the individual’s claims is filed and ends on the date a ruling is rendered that a class action will not be certified. In short, while a class action is pending, the running of the time for filing individual claims is put on hold.
The trial court in Rein’s current case ruled that American Pipe should not apply. We agree. As the trial court correctly observed in its ruling on PacBell’s demurrer to Rein’s FAC, our state Supreme Court declined to apply American Pipe’s equitable tolling rule to drug-related tort claims in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 (Jolly). In Jolly, one of the issues was whether American Pipe’s tolling rule should be applied to an individual’s claims for personal injuries allegedly caused by the drug DES, and based on the theory of liability recognized in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588. In Jolly, our Supreme Court ruled it did not. The court concluded that the American Pipe tolling rule should not apply because the earlier Sindell class action complaint did not sufficiently put any of the defendant drug manufacturers on notice of the substance and nature of an individual’s claims. Further, the earlier Sindell class action did not seek personal injury damages on behalf of the class. Thus, the absent class members who were aware of the prior class action could not in good faith rely on the class action complaint as a basis for postponing their own personal injury actions. (Jolly, supra, at p. 1125.) The Supreme Court ruled that American Pipe tolling would not apply to an individual’s claims where the efficiency attributable to an earlier class action would not have been undermined by an individual action, and where the two cases would not have been duplicative. (Ibid.) In brief, the court ruled that a plaintiff “seeking personal injury damages in DES cases may not rely on the Sindell class action suit... to toll the statute of limitations pursuant to American Pipe.” (Jolly, supra, at p. 1126, citation omitted.)
We agree with the trial court that American Pipe should not be applied to Rein’s claims. The main reason for concluding that the Kasper class action did not toll Rein’s individual action is that it seeks relief unique to him, and not fully presented in the previously filed Kasper class action. Although Rein’s FAC seeks civil penalties prescribed by law (see Pen. Code, § 637.2), as does the Kasper class action, Rein’s FAC also seeks more –– he alleges that he suffered actual harm from PacBell’s alleged wrongdoing, “including emotional distress....” He seeks to recover his actual damages, including emotional distress damages, and punitive damages. Rein’s current case, while arising from the same historical facts as the Kasper class action, is distinct and separate in kind. The Kasper class action did not put PacBell on notice of the substance and nature of Rein’s individual’s personal injury claims. Neither are the claims in the Kasper class action sufficient to have allowed Rein, in good faith, to rely on the class action as a basis for postponing his own personal injury claims. In short, the Kasper class action is parallel, not duplicative, to Rein’s current action. Allowing Rein’s current action to go forward would not have undermined the efficiencies in litigating claims involved in the Kasper class action. Rein is correct that Jolly did not establish an absolute bar against American Pipe’s tolling rule in the context of personal injury claims. But we disagree with Rein’s argument that there are good reasons for not following Jolly insofar as his current action and American Pipe are concerned.
Rein’s opening brief on appeal and PacBell’s respondent’s brief both advise us that two Courts of Appeal have applied American Pipe’s tolling rule –– Becker v. McMillin Construction Co. (1991) 226 Cal.App.3d 1493 (Becker) and San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318 (San Francisco USD). Rein argues we should follow Becker and San Francisco USD; PacBell argues we should not. PacBell’s argument is better.
Becker and San Francisco USD both involved scenarios where an individual’s claim for property damage was filed after a class action for property damages had been filed. In both Becker and San Francisco USD, the Courts of Appeal concluded that application of the American Pipe tolling rule –– i.e., citing the earlier class action to toll the individual’s later claim for property damage –– was appropriate because claims for property damages do not involve the same individualized problems that are present in an individual’s claims for personal injury damages. Although neither court was called upon to directly to decide whether an individual claim for personal injury damages is amenable to American Pipe’s tolling treatment, the tenor of Becker and San Francisco USD strongly reflect a judicial reluctance to application of American Pipe in the context of personal injury claims.
Finally, we reject Rein’s argument that his action is not like a personal injury case. Rein’s FAC alleges that he suffered actual injury, including emotional distress, from the alleged wrongdoing by PacBell. Rein’s claims are even more individualized than the average action for personal injuries. The evaluation of emotional distress injury is more unique to the individual than is measuring medical bills and loss of income and other special damages. Rein’s case is much more like a personal injury action than it is like a property damage action. We find his argument to the contrary to be unpersuasive.
II. The Discovery Rule Issue
Rein next contends the trial court erred in rejecting his position that a reasonable trier of fact could find his causes of action accrued in June 2008 –– the date on which the FBI informed him that his conversations had been wiretapped. We disagree.
Rein’s causes of action based on the Penal Code are subject to the one-year statute of limitations prescribed by Code of Civil Procedure section 340, subdivision (a). His remaining tort causes of action are subject either to the one-year statutes of limitations prescribed by former Code of Civil Procedure section 340, subdivision (3), or the two-year statute of limitations under current Code of Civil Procedure section 335.1. (See, e.g., Sullivan v. Delta Air Lines, Inc. (1997) 58 Cal.App.4th 938, 941 [cause of action for privacy intrusion is subject to a one-year statute of limitations]; Mark K. v. Roman Catholic Archbishop (1998) 67 Cal.App.4th 603, 613 [one-year statute of limitations applies to negligent supervision claims].) Regardless of whether a one-year or two-year limitations period applies (see Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026 [addressing applicability of newer two-year statute of limitations]), the issues in this case are not affected. As argued by the parties, Rein’s claims either accrued in 2006 or early 2007, in which case his April 2009 complaint was filed too late, or they considered accrued in June 2008, in which case his April 2009 complaint was timely.
The starting point for examining the statute of limitations is the rule that a cause of action accrues, and the limitations period begins to run, at the time a defendant commits a wrongful act giving rise to liability. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) “The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its [tortious] cause.” (See Jolly, supra, 44 Cal.3d at p. 1109.) In this context, “aware” does not mean subjective actual knowledge that a cause of action exists; the discovery rule only delays the accrual date of a cause of action until a plaintiff has or should have inquiry notice of the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (Fox).)
In other words, a plaintiff cannot manipulate that accrual date of a cause of action, and, the beginning of the running of the limitations period, by assertions of subjective belief. A cause of action accrues at the time a plaintiff knows facts which would cause a reasonably prudent person to become suspicious, thus triggering a duty to investigate. The plaintiff is charged with knowledge of matters which would have been revealed by an investigation. (Fox, supra, 35 Cal.4th at pp. 807-808.)
Rein’s FAC alleges that PacBell’s wrongful conduct occurred during a time frame from March 15, 2002, to May 16, 2002. His causes of action for wiretapping under the Penal Code, and his related claims, normally would have accrued at that time. (Ribas v. Clark (1985) 38 Cal.3d 355, 365.) Rein filed his action in April 2009. Unless the discovery rule applies, his claims are time-barred. The parties differ as to what facts, alleged and/or subject to judicial notice, would be sufficient to start the statute of limitations running.
A plaintiff whose complaint shows on its face that his claim would be time-barred without 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.’ [Citation.]” (Fox, supra, 35 Cal.4th at p. 808.) “ ‘[C]onclusory allegations will not withstand demurrer.’ [Citation.]” (Ibid.) Rein alleges the time and manner of discovery –– an FBI agent told him in mid-June 2008 that his telephone conversations with Ms. B. had been secretly recorded. The issue therefore is whether Rein’s FAC sufficiently alleges he was unable to have made earlier discovery despite reasonable diligence. We find it does not.
Rein’s complaint is not sufficient because he does not allege that he conducted any investigation even though he was aware of newspaper accounts about the wiretapping of Ms. B. At best, Rein’s opening brief on appeal suggests that so long as he subjectively assumed that newspaper accounts of the wiretapping of Ms. B.’s telephone involved other lawyers, he did not have a duty to investigate whether his telephone conversations with Ms. B. had been wiretapped. In Rein’s own words, a statute of limitations should not begin to run until “a particular plaintiff has reason to believe that he or she has been harmed, not when the plaintiff suspects that other people have been harmed.” Rein is wrong. As noted above, the date of accrual of a cause of action is delayed under the discovery rule only until a “reasonable person” would investigate. (Fox, supra, 35 Cal.4th at pp. 807-808.) If Rein had “ ‘ “ ‘ “notice or information of circumstances to put a reasonable person on inquiry, ” ’ ” ’ ” then he could not wait around for the facts “ ‘to find him and [in the meantime] ‘sit on’ his ‘rights.’ ” (Norgart, supra, 21 Cal.4th at p. 398, citation omitted.)
We find as a matter of law, that any reasonable person who speaks with a second person through that person’s telephone, and who later reads newspaper accounts that the second person’s telephone line had been unlawfully wiretapped, is put on notice that his or her conversations through the second person’s telephone may have been wiretapped. This is not a difficult connection to make. This is especially true here –– where the reasonable person was a lawyer and the use of Anthony Pellicano in the high profile divorce and child custody dispute between Kirk Krikorian was very well publicized. Rein’s assertion that he subjectively believed the stories he read concerning wiretaps only referred to other lawyers is not helpful in light of the settled parameters of the discovery rule. His reliance on Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th 1202 (addressing discovery rule in the context of summary judgment motion), and Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343 (addressing discovery rule in the context of a demurrer) for a different result is misplaced. The important fact in Nelson and Unruh-Haxton was that the plaintiffs did not know about media reports circulated in the public realm. In other words, there is no such thing as “constructive suspicion” based only on the fact that information has been published. We accept such a rule, but it is irrelevant to Rein’s current case. Rein’s FAC alleges that he did in fact read news stories concerning the wiretapping of Ms. B.’s telephone. He just asserts he believed the stories were about other lawyers. The discovery rule is not available to a plaintiff where it is invoked based upon this type of affirmative dissociation.
Had Rein investigated after reading the media reports, he would have been led to the criminal indictment unsealed in February 2006 and several civil actions filed in 2006. These included, but are not limited to: an action commenced by Ms. B. in April 2006 (Super. Ct. L.A. County, No. BC350832); the Kasper class action litigation filed in September 2006 (Super. Ct. L.A. County, No. BC358270); and an action filed by Ms. B.’s attorney of record in her child support case, Stephen Kolodny, in August 2006 (Super. Ct. L.A. County, No. BC356722). All of these materials would have been found in sources “open to investigation” to members of the public. (Fox, supra, 35 Cal.4th at p. 808.) The indictment would have disclosed to Rein that Pellicano allegedly wiretapped Ms. B.’s telephone in a time frame from March to May 2002, a time frame that Rein knew corresponded to his telephone conversations with Ms. B. The indictment also would have informed Rein that Pellicano allegedly placed the wiretaps on Ms. B.’s telephone to learn information about the child support litigation –– the very subject that Rein knew was involved in his conversations with Ms. B. In short, had Rein conducted any kind of investigation, he would have had even more reason to suspect his conversations had been recorded.
Where the knowledge obtained by the plaintiff or imputed to the plaintiff “ ‘is such as to compel the conclusion that a prudent man would have suspected [the cause of action], the court may determine, as a matter of law, that there has been discovery.’ ” (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1153, quoting National Automobile & Cas. Ins. Co. v. Payne (1968) 261 Cal.App.2d 403, 409.) Such is the situation in Rein’s current case. Rein’s allegations that he did not understand Pellicano’s “trademarked” method of wiretapping do not assist him. A plaintiff need not know all of the specific facts necessary to establish his claim; “that is a process contemplated by pretrial discovery.” (Jolly, supra, 44 Cal.3d at p. 1111.) Once Rein was aware of information in 2006 that would have raised a suspicion of potential wrongdoing in a reasonably prudent person, he had to decide whether to file suit or sit on his rights. (Ibid.) Having sat on his rights, he cannot avail himself of the discovery rule.
In a variation on his discovery rule argument, Rein contends he alleged sufficient facts to rely on the discovery rule even if the trial court properly concluded that he had a “suspicion” of wrongdoing prior to being informed by the FBI that his telephone conversations with Ms. B. had been wiretapped. We disagree.
Rein argues he adequately alleged the “time and manner of discovery” element of the discovery rule. That is, notice from the FBI. We agree. However, Rein also argues he adequately alleged the “inability to have made earlier discovery” element of the discovery rule. On this point, we disagree. We understand Rein to be arguing that any “suspicion” which he may have had before directly talking to the FBI was not strong enough to trigger a duty to make an inquiry. Thus, Rein could still avail himself of the discovery rule. This argument fails because, as we discussed above, the record conclusively establishes that Rein was on inquiry notice of his potential claims in 2006.
III. The Judicial Notice Issue
Rein next contends the trial court’s decision to sustain PacBell’s demurrer cannot be sustained because the court erred by taking judicial notice of matters which were not judicially noticeable. We disagree.
A court may take judicial notice of records filed in any state or federal court, and of the existence of facts that are not reasonably subject to dispute and which are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code, §§ 452, 453.) In addressing PacBell’s demurrer to Rein’s FAC, the trial court granted PacBell’s request for judicial notice of: the indictment filed against Pellicano; the complaints in Ms. B.’s action; the complaint in the Kolodny action; the dates the indictment and complaints were filed; and the dates that certain newspaper articles were published.
Rein recognizes that the trial court could have properly taken judicial notice of the literal existence of the documents described above. At the same time, however, he argues the court breached the rules governing judicial notice by accepting the truth of the facts in those documents. However, the record shows that the court did no such thing. On the contrary, the trial court’s ruling on PacBell’s request for judicial notice expressly includes the court’s statement that it would not take judicial notice of “the truth of the allegations” in the various documents.
Rein is wrong that the trial court “interpreted” documents to find that Rein was implicitly referenced in documents. Further, no interpretation of any document was needed to address PacBell’s demurrer. It did not matter what may have been said in any document, expressly or by inference. The issue for purposes of the discovery was inquiry notice, not actual notice. The trial court had only one question to answer: “Should a reasonably prudent person in Rein’s position have suspected that he or she may have been one of the individuals who was wiretapped?” For the reasons explained above, the answer must be yes. This conclusion does not require an interpretation of any allegation in any document.
IV. The Leave to Amend Issue
Rein contends the trial court should have allowed him leave to file a second amended complaint. We disagree.
A trial court may deny leave to amend where there is no “reasonable possibility” that a defective pleading can be cured by further amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) It is plaintiff’s burden to show a reasonable possibility that an adequate pleading could be alleged. (Ibid.) A trial court’s ruling to deny leave to amend is reviewed for abuse of discretion. (Record v. Reason (1999) 73 Cal.App.4th 472, 486.)
Rein argues he can amend his FAC to bring his action under the umbrella of the discovery rule by alleging these additional facts: If he had contacted individuals in the FBI or United States Attorneys’ Office in the course of investigating whether he was wiretapped, they would have refused to provide him with any information. He further offers to allege that if had he contacted Pellicano or any of the other criminal defendants, these individuals would not have admitted that his conversations were recorded. Basically, Rein argues a proposition which we will call the rule of “reverse inevitable discovery” –– i.e., his failure to investigate should be excused because it would have been fruitless. We disagree.
Rein’s futility argument was expressly rejected in Doe v. Roman Catholic Bishop of Sacramento (2010) 189 Cal.App.4th 1423 (Bishop of Sacramento). In Bishop of Sacramento, a mother sued the Sacramento Diocese in 2008. Her complaint alleged she suffered damages as a result of the molestation of her children by priests between 1989 and 1991. In a demurrer, the Diocese argued the statute of limitations applied so as to bar the claim. As in Rein’s current case, plaintiff argued that her failure to investigate the subject of her complaint nearly 20 years earlier should be excused because an investigation may not have revealed the abuse. In sum, plaintiff argued that any inquiries would have been futile because they would have been met with denials. (Id. at p. 1432.) The trial court sustained the Diocese’s demurrer, and the Court of Appeal affirmed.
The Court of Appeal found that plaintiff’s argument “misconstrue[d]” the duty to investigate. (Bishop of Sacramento, supra, 189 Cal.App.4th at p. 1432.) The court explained that the duty to investigate is required in order to prevent the discovery rule from encouraging dilatoriness and from inviting speculation about what would have transpired had an investigation in fact been conducted. (Id. at pp. 1432-1434.) In short, Bishop of Sacramento supports a common sense rule that a failure to investigate, when factual circumstances give rise to a suspicion of wrongdoing, precludes reliance on the discovery rule.
Even if Rein’s “futility” argument were abstractly correct on the law, it fails in any event. The record belies his claim that futility was inevitable. Rein did not need information from Pellicano, or the FBI, or the United States Attorneys’ Office before filing an action against PacBell. He could have discovered a basis for his claims by reading the publicly available criminal indictment against Pellicano and the complaints in the myriad actions arising from Pellicano’s activities. The trigger for accrual is not whether Rein would have learned facts from his investigation that would establish the merit of his claims. That type of factual acquisition is a matter for pretrial discovery. (Jolly, supra, 44 Cal.3d at p. 1111.) Again, the statute of limitations began to run when Rein became aware, or should have become aware, of facts that would have raised a suspicion of wrongdoing in a reasonably prudent person. (Ibid.) In sum, Rein has not persuaded our court that his claims against PacBell rule can be saved by an amendment adding these facts to his discovery rule allegations.
DISPOSITION
The judgment is affirmed. Respondent is to recover costs on appeal.
We concur: RUBIN, J., FLIER, J.