Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2007-00068018-CU-BC-CTL, Judith F. Hayes, Judge.
O'ROURKE, J.
In this case involving a 1999 sale of real estate, the trial court granted a defendant's motion for judgment on the pleadings without leave to amend under Code of Civil Procedure section 438 on grounds the plaintiff's breach of contract action was time barred. Appellants contend the trial court erroneously: (1) calculated the date the contract was breached; (2) assumed the buyers, who were non-experts, could understand the technical language legally describing the real property; (3) decided factual matters that are not resolvable in such a motion and (4) declined leave to amend the complaint to show the applicability of the delayed discovery rule. We affirm the judgment.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2007, appellants Menachem and Peggy Shoval filed a form complaint stating a single cause of action for breach of contract against respondents, Lucidi Family Partnership and certain individual defendants. They alleged that on or about October 2004, respondents "were obligated to provide 60 foot wide easement access from Poway Road via Mina de Oro Road to the south boundary of subject property at [respondents'] expense. [Respondents] breached the contract by (1) not obtaining easement as per contract and (2) interfering with [the Shovals's] rights by taking steps to place a gate along Mina de Oro Road and Poway Road that would block [the Shovals's] access to their property."
The Shovals attached to the complaint California Association of Realtors forms documenting the parties' negotiations, and a copy of the grant deed and accompanying maps and descriptions of the property. Specifically, in March 1998, the following term and condition was handwritten on the Shovals's purchase offer: "[Respondents] to provide sixty foot wide easement access from Poway Rd. via Mina de Oro to the South boundary of subject property at [Respondents'] expense." Respondents' April 1998 counteroffer included this handwritten condition: "[Respondents'] ability to obtain easement access shall remain a contingency of this agreement." The Shovals's second offer in June 1998 included this handwritten condition: "[Respondents] to remove easement contingency prior to end of feasibility period. (30 day) [¶]... [¶] At close of escrow [the Shovals] will receive from [Respondents] an easement to the 80 acres through 'Mina de Oro' and free and clear title from [Respondents] for the 80 acres except for acceptions [sic] approved by [the Shovals]."
Respondents requested judicial notice of these documents, and the trial court based its ruling on the face of the complaint and "matters judicially noticeable." "A complaint may be read as if it included matters judicially noticed." (Lazzarone v. Bank of America (1986) 181 Cal.App.3d 581, 590.)
After respondents accepted the Shovals's second offer, the grant deed was recorded in August 1999. Schedule A attached to the grant deed describes the land conveyed as parcels A, B, and C. The easement conveyed in Parcel B is: "An easement and right of way for ingress and egress, road and public utility purposes over, under, along and across those portions of parcel(s) 2, 3, and 4 of [the specific parcel map] lying within the area delineated and designated thereon as proposed 40.00 foot wide private road and utility easement." The easement conveyed in Parcel C is: "An easement and right of way for ingress and egress, road and utility purposes including, but not limited to, electric power, telephone, gas, water, sewer and cable television lines and appurtenances thereto, together with the right and power to convey the same to others, over, under, along and across the easterly 30.00 feet of parcel 3 of [the specific parcel map]."
Respondents answered the complaint asserting the statute of limitations as an affirmative defense. They also separately moved for judgment on the pleadings, arguing that under section 337, the Shovals's claim accrued when the grant deed was recorded and four years afterwards the statute of limitations ran; therefore the complaint was time barred. The Shovals opposed the motion, arguing for leave to amend the complaint to allege: "On August 25, 1999[, the Shovals] took a check for the purchase price to the Title Company. The [Shovals] asked the officer at the Title Company about the easement along Mina De Oro. They were assured by the Title Company officer that they were receiving the easement. The Title Company officer provided [the Shovals] with a document signed by the Title Company which said that the preliminary title report was supplemented to say the 'final amended legal description, from the final map and easement for a portion of Mina De Oro to be on the legal attached to the grand (sic)deed but Parcel C will not be insured at time of policy of title insurance is to issue at closing.' [The Shovals] believed that they had received the contracted for easement."
The Shovals in their opposition papers also sought to amend the complaint to add: "The property that was purchased is vacant land. The [Shovals] do not reside on the property. Following the close of escrow when the plaintiffs have visited the property they have used the Mina De Oro Road as the primary access to the property. No one objected or told them that they did not have a right to be there. In late 2004 new owners of property that bordered Mina De Oro began to block the [Shovals's] access and the access of the [Shovals's] visitors to 80 acres along Mina De Oro Road. The plaintiff went to the City of Poway City Council to complain and the City Council issued a resolution on March 22, 2005, stating that the plaintiffs their friends and family had the right to use Mina De Oro. In July[ ] 2005[, the Shovals] noticed that Lucidi was building a gate across an alternative access easement. Plaintiff approached Lucidi to demand an explanation. Lucidi told him he could block the access because [the Shovals] had no rights to use the easements. He said the deed did not provide the [Shovals] the easements the [Shovals] thought they had. [¶]... [¶] [The Shovals] recognize that the original complaint alleges a breach date of October[ ] 2004, however, this allegation is an error which the [Shovals] will correct through an amended pleading."
The trial court granted the motion without leave to amend and ruled, "In this case, the grant deed recorded on August 26, 1999, provides a '40.00 foot wide private road' over 'portions of the parcel(s) 2, 3, and 4.' [The Shovals] specifically negotiated for a 60 foot easement over Mina de Oro Road. It is reasonable to conclude the technical language contained in a grant deed is difficult for most to comprehend. However, the express language contained in the grant deed that a '40.00 foot' easement was granted coupled with the absence of language concerning 'Mina de Oro Road' should have put [the Shovals] on notice, and prompted further inquiry. Thus, the breach of contract in this action was not difficult to discover based on the relationship of the parties or the circumstances of the case.... The Court finds the delayed discovery rule does not apply here. In the exercise of reasonable diligence [the Shovals] should have discovered the accrual of their claim in 1999."
DISCUSSION
Section 438 provides that a party may move for judgment on the pleadings on grounds that a complaint fails to state a cause of action. " 'A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.]' [Citation.] ' "Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action." ' [Citation.] ' "[W]e are not bound by the determination of the trial court, but are required to render our independent judgment on whether a cause of action has been stated." [Citation.]' [Citation.] We accept as true the complaint's factual allegations and give them a liberal construction. [Citation.] 'We consider evidence outside the pleadings which the trial court considered without objection.' " (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064-1065.)
Civil actions can only be commenced within the periods prescribed after the cause of action shall have accrued. (§ 312.) "As a general rule, a statute of limitations accrues when the act occurs which gives rise to the claim [citation], that is, when 'the plaintiff sustains actual and appreciable harm. [Citation.] Any "manifest and palpable" injury will commence the statutory period.' " (Marin Healthcare District. v. Sutter Health (2002) 103 Cal.App.4th 861, 879.) With exceptions not applicable here, the statute of limitations for bringing "an action upon any contract, obligation or liability founded upon an instrument in writing" is four years. (§ 337.)
" 'Resolution of the statute of limitations issue is normally a question of fact.' [Citation.] More specifically, as to accrual, 'once properly pleaded, belated discovery is a question of fact.' [Citation.] As our state's high court has observed: 'There are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge. [Citation.] It is a question for the trier of fact.' [Citation.] 'However, whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law.' " (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1320.)
I.
The Shovals contend their claim for breach of a written contract accrued in 2004 or 2005, or "on the date they discovered that they had not received their bargained for easement and not on the date the grant deed was recorded."
A deed is a written instrument that conveys or transfers title to real property. It is an executed conveyance and acts as a present transfer of the property. As an executed contract, a deed is subject to the rules of interpretation applicable to contracts in general. (See Civ. Code, §§ 1040, 1066.) The law is well settled in California that the deed is the final and exclusive memorial of the intention and rights of the parties. (Wing v. Forest Lawn Cemetery Ass'n (1940) 15 Cal.2d 472, 479.) Likewise, an instrument creating an easement is interpreted in the same way as a contract. (Civ. Code, § 1066; Willard v. First Church of Christ, Scientist (1972) 7 Cal.3d 473, 476.) Matters judicially noticeable may show the complaint fails to state a cause of action though its bare allegations do not disclose the defect. (See Lazzarone v. Bank of America (1986) 181 Cal.App.3d, 581, 590.)
By statute, notice may be actual or constructive. Actual notice is defined as "express information of a fact," while constructive notice is that "which is imputed by law." (Civil Code, § 18.) "Constructive notice is a knowledge of such facts, that the party possessing such knowledge is conclusively presumed to know other things besides the facts which have been proven to have come to his knowledge. The information or knowledge of facts possessed by a party must be such that he is conclusively presumed to have notice of the main fact to which the constructive notice is invoked." (Wilkerson v. Thorp (1900) 128 Cal. 221, 224.) "A person generally has 'notice' of a particular fact if that person has knowledge of circumstances which, upon reasonable inquiry, would lead to that particular fact." (First Fidelity Thrift & Loan Assn. v. Alliance Bank (1998) 60 Cal.App.4th 1433, 1443; Civ. Code, § 19.)
Based on the pleadings and attached documents judicially noticed, it is established that the Shovals negotiated for a specific width of an easement through a specific road. The respondents' written counteroffer stated that any grant of an easement would be a "contingency of the agreement." The Shovals knew when the grant deed was recorded because as stated on that document, it was mailed to them after recordation in August 1999. There is no reason the Shovals could not have read the grant deed. They had every incentive to do so, to verify whether the grant deed correctly conveyed to them the easement, which was a material term of their negotiations. Therefore, as of 1999, they were on constructive notice of the existence of the grant deed and its precise terms. In California Title Ins. & Trust Co. v. Muller (1906) 3 Cal.App. 54, the appellant contended that "the [trial] court did not find that plaintiff or its testator ever had notice of the execution of the deed." (Id. at p. 58.) The appellate court concluded, "The [trial] court did find fully that [the deed] was duly acknowledged and recorded more than five years before the action was brought, and... this was sufficient." (Id. at p. 59.) Likewise, here, the trial court did not err in finding, based on the recorded grant deed, that "In the exercise of reasonable diligence [the Shovals] should have discovered the accrual of their claim in 1999."
Evidence Code, section 622 states: "The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto or to their successors in interest." "[T]he word 'instrument'... will be invariably found to indicate some written paper or instrument signed and delivered by one person to another, transferring the title to or creating a lien on property." (Hoag v. Howard (1880) 55 Cal. 564, 565.) "[A] deed purporting to transfer an easement in real property... is an instrument." (Generes v. Justice Court (1980) 106 Cal.App.3d 678, 684.) " 'A party is estopped by his deed. He is not permitted to contradict it; so far as the deed is intended to pass a right, or to be the exclusive evidence of a contract, it concludes the parties to it.' " (First Federal Trust Co. v. Stockfleth (1929) 98 Cal.App. 21, 25.)
Here, the terms of the grant deed are conclusively presumed to be true as between the Shovals and respondents. Specifically, the grant deed conveyed in parcel B a proposed "40.00 foot wide private road and utility easement" and for parcel C "the easterly 30.00 feet of parcel 3." The trial court correctly found that nowhere does the grant deed mention a "60 foot wide easement," which the Shovals claim they negotiated. The grant deed also did not mention an easement through "Mina De Oro" Road, as stated in the Shovals's counteroffer. The Shovals's claim that "a non-expert buyer of land cannot reasonably be expected to understand the technical language on a real property legal description." However, no technical expertise was required to distinguish between the easements in the grant deed — which measured thirty and forty feet wide — from the sixty-foot wide easement the Shovals had sought in their counteroffer.
Based on the above analysis, we conclude that under section 337's four-year statute of limitations, the Shovals's contract claim accrued in 1999 and therefore the complaint filed in 2007 was time barred.
II.
The Shovals contend the delayed discovery rule applies here, and that the actual accrual date for their complaint was in 2004 or 2005; therefore, the trial court erred in denying leave to amend the complaint to include allegations set forth above regarding their contact with the title company one day before the grant deed was recorded, and their July 2005 encounter with Lucidi.
The Shovals alleged in their papers opposing the motion: "[The Shovals] recognize that the original complaint alleges a breach date of October 2004, however, this allegation is an error which [the Shovals] will correct through an amended pleading."
"An important exception to the general rule of accrual is the 'discovery rule,' which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.] [¶] 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.' [Citations.].... 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." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (Fox).) "Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them." (Ibid.)
To rely on the discovery rule for delayed accrual of a cause of action, "[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., superseded by statute on other grounds as stated in Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623.)
"When leave to amend is not given, we determine whether the complaint states a cause of action and whether the defect can reasonably be cured by amendment. If it can be cured, the trial court has committed reversible error. Otherwise, we affirm. The burden of proof is squarely on the plaintiff." (Baughman v. State of California (1995) 38 Cal.App.4th 182, 187.)
"It is well established in California that where the law establishes a conclusive presumption evidence will not be received to contradict it." (Gayton v. Pacific Fruit Express Co. (1932) 127 Cal.App. 50, 61.) The Shovals were conclusively presumed to be on constructive notice regarding both the fact of the recordation of the grant deed and the contents of the grant deed, which conveyed to them specific easements. Therefore, they could not — and did not — introduce evidence to contradict those presumptions. The trial court did not err in denying them leave to amend the complaint.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.