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Filed 12/23/21 Sinkiewicz v. Skyline 83 Batavia Investors CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THOMAS E. SINKIEWICZ et al.,

Plaintiffs and Appellants,

v.

SKYLINE 83 BATAVIA 

INVESTORS, INC.,

Defendant and Respondent.

 A157192

 (San Francisco County

 Super. Ct. No. CGC-17-561619)

The plaintiffs in this case, Thomas E. Sinkiewicz and Gayle A. 

Sinkiewicz, bought commercial real property and then sued the seller, 

Skyline 83 Batavia Investors, Inc. (Skyline), alleging that the property listing 

had significantly overstated the property’s size. The trial court granted 

Skyline’s motion for summary judgment, and plaintiffs now appeal. The 

issue before us is whether the trial court abused its discretion by denying 

plaintiffs’ request for leave to amend the complaint. We will affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Allegations in Plaintiffs’ Complaint

In September 2017, plaintiffs filed a complaint against Skyline alleging 

causes of action for fraudulent misrepresentation, fraudulent concealment, 

negligent misrepresentation, unfair business practices, and tort of another.
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They alleged that Skyline conveyed false information about the square 

footage of real property at 107 N. Batavia Avenue in Batavia, Illinois (the 

Property): the listing stated that the commercial space was 3,800 square feet, 

when the actual size was only about 2,300 square feet. Plaintiffs alleged that 

they justifiably relied on the listing when they bought the Property in April 

2014 for the listed price; they would not have bought the Property if they had 

known the truth about its size; and they did not discover the 

misrepresentation until October 2015. Plaintiffs claimed to have suffered $1 

million in economic damage. 

B. Undisputed Facts

In April 2014, in connection with a so-called “1031 exchange” under

Internal Revenue Code section 1031, plaintiffs sought to purchase 

commercial property occupied by fast food restaurants under long term 

leases. They were represented by licensed real estate agents of their own 

choosing, who worked under the license of real estate brokerage Marcus & 

Millchap Company (MMC). Plaintiffs’ agents contacted William Schofield, 

another licensed real estate agent working for MMC, and a principal of 

Skyline, asking for information about investment opportunities that would 

meet the plaintiffs’ criteria. 

On April 23, 2014, Schofield sent plaintiffs’ agent a document 

concerning the Property, stating that his partnership, Skyline, owned the 

Property and planned to start marketing it within the next month or so. The 

document, which Schofield characterized as a “draft numbers page,” and 

which was entitled “Offering Memorandum,” showed the “Rentable Square 

Feet” of the property as 3,800, and stated that the Property was occupied by a 

Hardee’s restaurant under a 20-year lease that had commenced in 2013. The 

Offering Memorandum was printed on MMC stationery, and stated, “This 
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information has been secured from sources we believe to be reliable, but we 

make no representations or warranties, expressed or implied, as to the 

accuracy of the information. References to square footage . . . are 

approximate. Buyer must verify the information and bears all risk for any 

inaccuracies.” At some point, plaintiffs received a copy of the Offering 

Memorandum. 

On April 25, 2014, the plaintiffs and Skyline entered a Purchase 

Agreement (the Agreement) in which plaintiffs agreed to pay $1,864,285 to 

acquire the Property. By its terms, the Agreement is governed and construed 

in accordance with Illinois law, except that paragraph 9 (“Condition of 

Property”) is governed by California law. The Agreement says nothing about 

the size of the Property.1

In paragraph 5, “Contingencies,” the Agreement provided a diligence 

period for plaintiffs (as “Buyer”) to review and approve certain documents to 

be produced by Skyline (as “Seller”), and to conduct physical inspections of 

the Property. Plaintiffs would be deemed to have approved the physical 

condition of the property absent failure to approve or object to the condition 

in writing by the end of the diligence period. 

Paragraph 9 of the Agreement, which was initialed by plaintiffs, states, 

“It is understood and agreed that the Property is being sold ‘as is;’ that Buyer 

has, or will have prior to the Closing Date, inspected the Property; and that 

neither Seller [i.e., Skyline] nor Agent [defined as MMC] makes any 

representation or warranty as to the physical condition or value of the 

Property or its suitability for Buyer’s intended use except as stated herein.” 

1 The Agreement disclosed that some of the principals of Skyline, 

including Schofield, were licensed real estate agents or brokers, and that 

Schofield was a licensed agent at MMC. The Agreement also disclosed that 

MMC represented both the buyer and seller in the sale of the Property. 
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Paragraph 9 further states, “Upon Buyer’s satisfaction or waiver of the 

contingencies [which include the review of Seller’s documents and physical 

inspection of the Property] Buyer will purchase the property ‘as is’ and solely 

on reliance on its own investigation of the Property.” In addition, paragraph 

9 states, “Upon Closing, Buyer hereby waives, releases, acquits and forever 

discharges Seller . . . to the maximum extent permitted by law from any and

all claims, actions, causes of action . . ., direct or indirect, known or unknown, 

foreseen or unforeseen, that it now has or which may arise in the future on 

account of or in any way growing out of or connected with Property 

Condition.” “Property Condition” is defined as “each and every matter of 

concern or relevance to Buyer relating to the Property, including [the] 

physical . . . condition and sufficiency of the Property and all improvements 

and equipment thereon; . . . [and] the fitness of the Property for Buyer’s 

contemplated use.” Paragraph 9 also includes an express waiver of Buyer’s 

rights under Civil Code section 1542. 

On April 28, 2014, plaintiffs signed a Receipt of Documents, stating 

that they had received documents “as per the . . . Agreement,” including a 

“Survey dated June 7, 2013.” Plaintiffs concede that the Survey “depicted the 

dimensions of the building on the . . . Property, and hence would have 

allowed, with a modicum of arithmetic, a rough calculation that the actual 

rentable square footage in the building was actually in the vicinity of 2217 

square feet.” The Receipt of Documents and the documents themselves had 

been sent to plaintiffs by their agents. Plaintiffs’ agents sent most of the 

documents by mail and email but informed the plaintiffs that because the 

Survey was too large to email or mail, they had made it available for 

plaintiffs to download from Dropbox and provided a link to it. Plaintiffs 

admit they did not review the Survey before the close of escrow. 
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On May 2, 2014, plaintiffs signed a Contingency Removal, stating 

“Buyer hereby approves and removes as contingencies” various inspections, 

including the documents provided by seller and the physical inspection, and 

specifically confirming receipt of the documents. With the removal of 

contingencies, the Agreement became binding. Escrow closed a few days 

later. 

C. Motion for Summary Judgment

Skyline moved for summary judgment, or alternatively for summary 

adjudication as to each cause of action. Skyline argued that plaintiffs’ 

contractual waiver of claims, which was governed by California law, barred 

their claims, and that in any event the individual claims, which were 

governed by Illinois law, failed because they could not be supported by any 

admissible evidence. 

In opposition to the motion, Plaintiffs argued that the contractual 

waiver did not apply to their claims for intentional fraud and negligent 

misrepresentation. They conceded that summary adjudication should be 

granted as to all their claims, but they argued that the evidence raised 

triable issues of fact that defendants had violated the Illinois Consumer 

Fraud and Deceptive Business Practices Act (815 Ill. Comp. Stat. 505/1 et 

seq. (Illinois Act)), and sought leave to amend their complaint to allege a 

cause of action under the Illinois Act. 

In reply, Skyline argued that plaintiffs’ proposed Illinois Act cause of 

action was time-barred, and that in any event plaintiffs could not carry their 

burden of proof. 

The trial court granted the motion for summary judgment and denied 

as futile plaintiffs’ request to amend the complaint. The trial court ruled that 

plaintiffs had waived all claims, and that even if the waiver were invalid, 
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plaintiffs’ proposed cause of action under the Illinois Act was barred by the 

three-year statute of limitations, which had expired before plaintiffs filed 

their complaint. 

Judgment was entered for Skyline and plaintiffs timely appealed. 

DISCUSSION

Plaintiffs argue that the trial court incorrectly interpreted the law in 

upholding the contractual waiver of claims and in deciding that their

proposed cause of action was time-barred. We conclude that the Illinois Act 

claim is time-barred, and therefore we need not reach the issue of waiver. 

A. Applicable Law and Standard of Review

Where a motion for summary judgment has been granted but the facts 

indicate that the plaintiff has a good cause of action that has been 

imperfectly pleaded, the trial court should grant a request for leave to amend. 

(Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.) We 

review the denial of leave to amend for abuse of discretion. (Id. at p.1281.) If 

the proposed amendment would not state a cause of action, however, it is 

proper to deny leave to amend. (Id. at p. 1280.) On appeal, the plaintiff 

bears the burden of showing that the court abused its discretion by making a 

ruling that exceeded the bounds of reason or is legally incorrect. (Id. at p. 

1281.) Where, as here, the plaintiff claims that the abuse of discretion is 

based on an error of law, we are presented with a legal question, which we 

review de novo. (In re Charlisse C. (2008) 45 Cal.4th 145, 159.) 

To prove a violation of the Illinois Act, a plaintiff must prove a 

deceptive act or practice; intent on the part of the defendant that plaintiff 

rely on the deception; the deception occurred in the course of conduct 

involving trade or commerce; and that damages were proximately caused by 
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the deception. (Adler v. William Blair & Co. (Ill.Ct.App. 1995) 648 N.E.2d 

226, 233-234.)

The statute of limitations for an action under the Illinois Act is three 

years, and any cause of action not filed within the statute of limitations is 

time barred. (815 Ill. Comp. Stat. 505/10a(e); Gredell v. Wyeth Laboratories, 

Inc. (Ill.Ct.App. 2004) 803 N.E.2d 541, 547.) The discovery rule applies to 

actions filed under the Illinois Act, and therefore “[t]he statute of limitations 

[begins] to run ‘ “when a party knows or reasonably should know both that an 

injury has occurred and that it was wrongfully caused” ’ and, at that point, 

‘ “the party is under an obligation to inquire further to determine whether an 

actionable wrong was committed.” ’ ” (Id. at pp. 546-547.) 

B. Analysis

Plaintiffs argue that the statute of limitations did not begin to run until 

late 2015, when they discovered the discrepancy in square footage between 

the listing and the Property. They argue that their complaint was filed 

within three years calculated from the date of that discovery, and under the 

relation back doctrine the Illinois Act claim should relate back to the date of 

filing of the original complaint. 

Plaintiffs further argue they justifiably relied on the information in the 

Offering Memorandum, which was not improbable on its face; they had no 

obligation to investigate further; and it was error for the trial court to 

conclude that they should have known the true size of the property on or 

before May 2, 2014 (when they signed the Contingency Removal). Their 

argument rests on the principle that under Illinois law, “where the 

representation is made as to a fact actually or presumptively within the 

speaker’s knowledge, and contains nothing so improbable as to cause doubt of 

its truth, the hearer may rely upon it without investigation, even though the 
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means of investigation were within the reach of the injured party and the 

parties occupied adversary positions toward one another.” (Sims v. Tezak 

(Ill.Ct.App. 1998) 694 N.E.2d 1015, 1020 (Sims).) 

But the principle stated in Sims does not apply here. There was no 

representation in the Offering Memorandum on which plaintiffs could

reasonably rely. In the Offering Memorandum, which was prepared on MMC 

stationery, MMC stated that it made no representations as to the accuracy of 

the information, and notified the plaintiffs that as prospective buyers they

“must verify the information” and “bear[ ] all risk for any inaccuracies.” 

Under Illinois law, justifiable reliance is generally a question of fact, 

but “the court may dispose of the issue on summary judgment if the facts are 

undisputed and only one conclusion is apparent.” (D.S.A. Finance Corp. v. 

County of Cook (Ill.Ct.App. 2003) 801 N.E.2d 1075, 1081.) “[T]he court 

considers whether the party was reasonable in relying on his adversary’s 

representation in light of the facts within his actual knowledge and any he 

might have discovered by the exercise of ordinary prudence. [Citation.] ‘[A] 

person may not enter into a transaction with his eyes closed to available 

information and then charge that he has been deceived by another.’ 

[Citation.]” (Ibid.) “ ‘A plaintiff has a duty to investigate further when the 

circumstances reasonably require, as a matter of prudence, that an 

investigation be undertaken.’ ” (Neptuno Treuhand-Und 

Verwaltungsgesellschaft Mbh v. Arbor (Ill.Ct.App. 1998) 692 N.E.2d 812, 

818.) “ ‘[T]he crucial question is whether the plaintiffs’ conduct was 

unreasonable under the circumstances and “ ‘in light of the information open 

to him, that the law may properly say that this loss is his own 

responsibility.’ ” [Citation.]’ ” (Ibid.)
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Even apart from the disclaimer on the Offering Memorandum, on the 

facts here, plaintiffs had a duty to further investigate the representations in 

the Offering Memorandum. This is reflected in the Agreement, which 

includes an acknowledgement that neither Skyline nor MMC made any 

representation as to the size of the Property as well as a provision that 

plaintiffs would inspect the Property before closing and would purchase the 

property “solely on reliance on [their] own investigation of the Property.” 

(See Schrager v. Bailey (Ill.Ct.App. 2012) 973 N.E.2d 932, 939 [nonreliance 

clause in agreement precludes plaintiff from proving justifiable reliance].) 

Further, the circumstances here reasonably required as a matter of 

ordinary prudence that plaintiffs investigate the size of the Property because, 

as plaintiffs stated in the trial court, plaintiffs understood the square footage 

of the Property to be a material consideration in their evaluation of its fair 

market value. 

Plaintiffs were not prevented from undertaking the necessary 

investigation. Far from it. They admit that the relevant information was 

available in the Survey that they had received and approved. By signing the 

Contingency Removal, plaintiffs signified that they had reviewed the Survey. 

Under the circumstances, their failure to review it is unreasonable.2 

In sum, the undisputed facts compel the conclusion that plaintiffs

reasonably should have known the size of the Property when they signed the 

Contingency Removal. Because plaintiffs claim that the value of the 

Property was inflated based on the overstated size, their alleged injury 

2 Plaintiffs’ contention that they did not know how to use Dropbox is 

irrelevant. In any event, plaintiffs’ only support for that contention is a 

citation to a portion of Mr. Sinkiewicz’s declaration to which Skyline’s 

evidentiary objection was sustained, and plaintiffs do not challenge the trial 

court’s evidentiary rulings. 
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occurred when they removed the contingencies on May 2, 2014 and 

committed themselves to paying more than they now claim they would have 

paid had they known the true size. Accordingly, the three-year limitation 

period for a claim under the Illinois Act expired by May 2, 2017, before 

plaintiffs filed their complaint; amendment of the complaint to add such a 

claim would be futile; and the trial court properly denied plaintiffs’ request 

for leave to amend. 

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.
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_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, Acting P.J.

_________________________

Kline, J.*

A157192, Sinkiewicz v. Skyline 83 Batavia Investors, Inc.

* Assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.