Filed 9/25/14 Studendorff v. National Semiconductor CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

SIXTH APPELLATE DISTRICT 

CHRISTOPHER STUDENDORFF, et al., 

Plaintiffs and Appellants, 

v. 

NATIONAL SEMICONDUCTOR 

CORPORATION, 

Defendant and Respondent. 

 H037739 

 (Santa Clara County 

 Super. Ct. No. 110CV178254) 

 In this case, we consider questions regarding the statute of limitations for and 

delayed discovery of pre-birth injuries that were allegedly due to exposure to toxic and 

hazardous materials that occurred more than 20 years ago. Debbie Studendorff and her 

husband, Michael Studendorff, worked for defendant National Semiconductor 

Corporation (NSC) from the late 1970’s until the late 1980’s assembling semiconductor 

products. The plaintiffs are Debbie Studendorff and Christopher Studendorff, Debbie 

and Michael Studendorff’s son. Michael Studendorff is not a plaintiff. (For clarity, and 

meaning no disrespect, we will hereafter refer to the members of the Studendorff family 

individually by their first names. We will refer to Debbie, Michael, and Christopher 

collectively as “the Studendorffs,” to Debbie and Christopher jointly as “Plaintiffs,” and 

sometimes to Debbie and Michael jointly as “Parents.”) 
2

 Plaintiffs allege that Christopher was born with retinoblastoma (a cancer of the 

eye) and other birth defects as a result of parental and in utero exposure to hazardous and 

toxic chemicals while Debbie and Michael worked in NSC’s “clean rooms.” Plaintiffs 

further allege that Parents did not know Christopher’s birth defects were caused by 

workplace exposure to hazardous chemicals until December 2008, when they heard on 

the radio that their attorneys were investigating cases of birth defects caused by chemical 

exposures in the semiconductor industry. But Plaintiffs also allege that around the time 

Christopher was diagnosed with retinoblastoma in October 1987, Parents asked NSC 

“whether they had worked with or otherwise been exposed to any hazardous chemicals.” 

 Plaintiffs appeal from a judgment of dismissal after the trial court sustained NSC’s 

demurrer to Plaintiffs’ second amended complaint without leave to amend on statute of 

limitations grounds. The court concluded that the action was barred by the statute of 

limitations in Code of Civil Procedure section 340.4, or its predecessor, former Civil 

Code section 29, both of which apply to actions based on birth and pre-birth injuries. 

(Unless otherwise stated, all further statutory references are to the Code of Civil 

Procedure.) 

 Plaintiffs contend the applicable statute of limitations is section 340.8, the twoyear limitations period for causes of action based on exposure to hazardous chemicals 

(which they contend is subject to tolling for minority and insanity), and that the trial court 

erred when it applied section 340.4, the six-year limitations period for causes of action 

based on pre-birth injuries (which is not subject to such tolling). Plaintiffs also argue 

that: (1) the court erred when it concluded they were not entitled to rely on the discovery 

rule to toll the statute of limitations; (2) NSC is equitably estopped from relying on a 

statute of limitations defense because it knew the chemicals used in the workplace caused 

reproductive harm and NSC fraudulently concealed the causal connection between 

plaintiffs’ chemical exposure and their injuries; and (3) if the allegations of the second 
3

amended complaint are insufficient, they can amend their pleading to adequately allege 

delayed discovery and equitable estoppel based on NSC’s fraudulent concealment. 

 We conclude that (1) the applicable limitations period is the six-year period in 

former Civil Code section 29; (2) Plaintiffs have not pleaded sufficient facts to support 

their claim of delayed discovery; and (3) the allegations of the complaint are insufficient 

to support an equitable estoppel claim. Furthermore, since Plaintiffs’ proposed 

amendments do not cure the deficiencies in their pleading, the trial court did not abuse its 

discretion when it sustained the demurrer without leave to amend or when it denied leave 

to amend to allege an equitable estoppel claim. We will therefore affirm the judgment of 

dismissal. 

FACTS1

 Christopher was born on August 27, 1987; he was 22 years old when the original 

complaint was filed. Christopher is developmentally disabled; he is represented in this 

action by and through his father and conservator, Michael Studendorff.2

 

 1

 In reviewing the propriety of the trial court’s order sustaining NSC’s demurrer, 

we accept as true all factual allegations properly pleaded in the complaint. (Gu v. BMW 

of North America, LLC (2005) 132 Cal.App.4th 195, 200.) Accordingly, our summary of 

the facts is drawn from the material allegations of the operative pleading, the second 

amended complaint. (Ibid.) And since a demurrer admits the truth of all facts properly 

pleaded, we will refer to the allegations of the second amended complaint in this 

paragraph and in succeeding paragraphs without sometimes using the prefatory phrase 

“plaintiffs allege,” to avoid undue repetition of the phrase. 

2

 Although Michael was named as a plaintiff in the original and first amended 

complaints, he is not a plaintiff in the second amended complaint. It appears Michael 

elected not to pursue his own claims so he could serve as Christopher’s guardian ad litem. 

In March 2010, the court denied Michael’s request to serve as Christopher’s guardian ad 

litem without prejudice, on the ground that “a co-plaintiff is an inappropriate guardian 

due to potential conflicts of interest.” In May 2010, after Michael filed a request for 

dismissal of his own claims, the court granted his application to be Christopher’s 

guardian ad litem. 
4

 Both Debbie and Michael worked for NSC at its Santa Clara manufacturing 

facility. Debbie worked there from 1977 until 1987; Michael worked there from 1979 

until 1989. While working in “clean rooms” at NSC, Parents were “required . . . to use 

numerous chemicals that are known to be hazardous, teratogenic,[3]

 genotoxic[4] and 

reproductively toxic” to assemble and to manufacture NSC’s products. “These chemicals 

are known to cause severe harm to unborn children.” 

 Debbie worked in NSC’s clean rooms while she was pregnant with Christopher. 

During Debbie’s pregnancy, Christopher was “ ‘present’ ” in the clean rooms and was 

exposed in utero, “during the crucial months of growth in his mother’s womb, for 

prolonged periods of time to teratogenic, genotoxic, and reproductively toxic chemicals 

and processes.” The “ ‘clean rooms’ ” were only clean for NSC’s products, not its 

employees. There was no ventilation system to protect workers from inhaling fumes 

emitted by the chemicals, which remained in the re-circulated air in the clean rooms. The 

protective clothing the employees wore protected NSC’s products from the workers and 

their clothing, but it did not protect the workers from the chemicals. Parents absorbed the 

chemicals used in the workplace into their bodies through their skin and by inhalation. 

 “Upon information and belief,” the second amended complaint lists chemicals or 

classes of chemicals Parents were exposed to and specifies how NSC used some of those 

chemicals. The exposure to these chemical substances alone or in combination caused 

Christopher to develop retinoblastoma, a pediatric cancer of the eye, and other birth 

defects. Parents were exposed to other chemicals and processes, the “exact description, 

trade name, formulation and other specific identifying information” of which NSC is in a 

 3

 “Teratogenic” means “tending to cause developmental malformations . . . .” 

(Webster’s 3d New Internat. Dict. (1993) p. 2358, col. 1.) 

4

 “Genotoxic” means “[d]enoting a substance that by damaging DNA may cause 

mutation or cancer.” (PDR Medical Dictionary (2d ed. 2000) p. 739, col. 1.) 
5

“superior position to identify” because it “purchased, manufactured or otherwise acquired 

same.” 

 Plaintiffs allege NSC “knew or should have known of the hazardous nature of 

the . . . chemicals and processes used in the ‘clean rooms’ ” and should have foreseen or 

anticipated that NSC workers would be exposed to those chemicals. NSC “concealed 

and/or misrepresented the . . . toxic nature of chemicals used in the manufacture of its 

products,” and “failed to warn . . . its employees” of the toxic nature of the chemicals 

used. Parents “reasonably and justifiably relied on their employer” “to appropriately 

warn, advise and/or implement safety policies and procedures” pertaining to chemicals in 

the workplace and as a “direct and proximate result of [NSC’s] concealment and failure 

to warn,” they “were prevented from discovering the cause of . . . Christopher’s 

retinoblastoma and other injuries.” 

 Christopher was diagnosed with retinoblastoma “in or about October 1987” (two 

months or less after his birth). Parents spoke with Christopher’s “treating physicians, 

surgeons and other specialists” regarding his condition “continuously throughout the 

course of his medical treatment and care.” “At no time prior to December 2008, did any” 

of the medical professionals treating Christopher “ever inform, advise, suggest or 

otherwise imply that parental occupational exposure was a potential contributing cause 

of” Christopher’s injuries and birth defects. Parents therefore had “no reason to 

investigate, inquire into or suspect any occupational cause of these injuries.” 

 But around the time Christopher was diagnosed with retinoblastoma in October 

1987, Parents asked NSC “whether they had worked with or otherwise been exposed to 

any hazardous chemicals. Specifically, Debbie . . . contacted the [NSC] human resources 

department, which in turn referred her to other departments.” In response, NSC “actively 

concealed and by omission failed to provide information to” Parents, and it thus “engaged 

in a willful subterfuge, purporting to respond to the inquiry while in fact actively 

concealing, and failing and refusing to provide, any information regarding the nature or 
6

potential health hazards of the chemicals and processes used in its manufacturing 

facilities or to admit that it was in possession of any knowledge or information regarding 

such hazards.” NSC “expressly and impliedly represented to [Parents] . . . that the 

chemicals and substances present in their work areas and at their place of employment 

did not pose a hazard to [Parents] or their unborn children.” Parents “reasonably relied 

upon such representations.” 

 Twenty-one years later, “[i]n or after December 2008,” Parents “heard attorney 

radio advertisements [that] informed them that certain attorneys . . . were investigating 

cases of birth defects caused by chemical exposures in the semiconductor industry.” 

Parents responded to the ads and retained counsel to investigate whether Christopher’s 

retinoblastoma and other birth defects “were caused by parental occupational exposure” 

to toxic chemicals at NSC. Through that investigation, “they learned for the first time, in 

or after December 2008,” that Christopher’s injuries were caused by chemical exposures 

at NSC. “[A]t no time prior to retaining counsel,” did Parents suspect that Christopher’s 

injuries were caused by chemical exposures at NSC. 

PROCEDURAL HISTORY

Appointment of Parents as Conservators for Christopher 

 Before filing this action, Parents filed a petition for a limited conservatorship to be 

appointed conservators of the person for Christopher. The petition alleged that 

Christopher “is developmentally disabled. While he can groom himself and cook simple 

meals, he is unable to manage money, has no concept of time, and his judgment is 

impaired. He functions at about a 3rd grade level.” Christopher lived at the DEMY 

Home in Livermore. His parents and two siblings resided in Pleasanton. The court 

granted the petition and appointed both Debbie and Michael to serve as Christopher’s 

conservators. 
7

 The operative pleading does not expressly allege that exposure to toxic chemicals 

at NSC caused Christopher’s developmental disability; it is not clear whether 

Christopher’s developmental disability is one of the other “birth defects” that Plaintiffs 

claim were caused by exposure to chemicals at NSC. 

Initial Pleadings and Demurrer to First Amended Complaint 

 The Studendorffs filed their original complaint against NSC on February 22, 2010, 

in Alameda County Superior Court. In addition to Michael, Debbie, and Christopher, the 

named plaintiffs included Megan Ovick (who also had retinoblastoma) and her parents, 

Marla Ovick and Michael Ovick (both of whom also worked at NSC). The Ovicks’ 

claims are the subject of a separate appeal in Ovick v. National Semiconductor (Sept. 25, 

2014, H038108, nonpub. opn.). 

 In May 2010, the parties stipulated to a change of venue from Alameda County to 

Santa Clara County and the court ordered the matter transferred. 

 In September 2010, after NSC filed a demurrer to the original complaint, but 

before the hearing on the demurrer, Plaintiffs filed a first amended complaint. The first 

amended complaint included causes of action on behalf of Christopher for negligence, 

strict liability, willful misconduct, misrepresentation, premises liability, and products 

liability. The first amended complaint also included causes of action on behalf of Debbie 

for intentional and negligent infliction of emotional distress. 

 NSC demurred to the first amended complaint on a variety of grounds, including 

that it was barred by the statute of limitations. Plaintiffs filed opposition to the demurrer. 

 In November 2010, the court sustained the demurrer with leave to amend based on 

the statute of limitations defense. The court found that the action was governed by 

section 340.4, and its predecessor, former Civil Code section 29, which were subject to 

the discovery rule. Citing Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 

(Fox), the court held that “Plaintiffs had failed to specifically ‘plead facts to show (1) the 
8

time and manner of discovery and (2) the inability to have made earlier discovery despite 

reasonable diligence.’ ” (Original italics.) 

Second Amended Complaint and Demurrer to Second Amended Complaint 

 Plaintiffs filed their second amended complaint in December 2010. It contained 

the same causes of action as their first amended complaint. 

 NSC demurred to the second amended complaint. NSC argued, among other 

things, that Plaintiffs’ claims were barred by the statute of limitations in section 340.4 

and that Plaintiffs had failed to specifically plead facts that warranted application of the 

discovery rule. NSC argued that Christopher’s causes of action accrued in October 1987, 

when Parents asked NSC whether they had been exposed to any hazardous chemicals, 

and that because they suspected a causal link in 1987, they were required to conduct a 

reasonable investigation at that time. 

 Plaintiffs opposed the demurrer, arguing that the applicable statute of limitations 

was the two-year period in section 340.8, which governs actions based on exposure to 

toxic substances, and that the limitations period had not yet expired when the original 

complaint was filed because it was tolled by Christopher’s intellectual disability. They 

also argued that their claims were timely under both sections 340.4 and 340.8 because 

they were tolled by the discovery rule. Plaintiffs argued that Parents undertook a 

reasonable investigation when they consulted Christopher’s physicians and “relied on the 

misinformation and false assurances of [NSC]” and that through no fault of their own, 

they did not discover facts essential to Plaintiffs’ claims until December 2008. Plaintiffs 

also requested leave to amend. 

 In its order on the demurrer, the court affirmed its previous holding that the 

applicable limitations period is the six-year period in section 340.4 or former Civil Code 

section 29 for pre-birth injuries. As to the Studendorffs, the trial court sustained the 

demurrer without leave to amend finding that the entire complaint was barred by section 
9

340.4, which is not subject to tolling for minority or insanity (§ 352). The court held that 

although section 340.4 is subject to the discovery rule, the limitations period was not 

tolled by delayed discovery because Parents actually suspected wrongdoing in October 

1987, and Plaintiffs “clearly fail[ed] to demonstrate that despite diligent investigation of 

the circumstances of injury, [Parents] could not have reasonably discovered facts 

supporting the cause of action within the applicable . . . limitations period.” The court 

did not make an express ruling regarding Debbie’s emotional distress claims (§ 335.1), 

but it sustained the demurrers without leave to amend as to the entire complaint. As to 

the Ovicks, the court sustained the demurrer to their claims with leave to amend and 

made other rulings that are not relevant to this appeal. 

Motion for Reconsideration 

 In June 2011, Plaintiffs filed a motion for reconsideration of the court’s order on 

the demurrer. They asserted that after the court granted the Ovicks leave to amend, their 

counsel “undertook an extensive examination of all available facts . . . to satisfy the 

heightened pleading standard,” which included documents that were not readily available 

when the second amended complaint was filed. They argued that counsel’s review had 

uncovered “several new and different facts pertinent to the cause of action for 

misrepresentation,” which also tolled the statute of limitations “on the basis of fraudulent 

concealment.” Plaintiffs attached a proposed third amended complaint that contained 

40 to 50 paragraphs of additional allegations relating to NSC’s alleged knowledge and 

concealment. 

 The proposed third amended complaint alleged that NSC was a founding member 

of the Semiconductor Industry Association (SIA) and participated in the Semiconductor 

Safety Association (SESHA). It alleged that before 1982, SIA told NSC that animal 

studies had revealed that the chemicals used in the semiconductor industry caused birth 

defects. And before 1987, a SESHA journal advised NSC that: (1) at least 18 chemicals 
10

used to manufacture semiconductors were known to cause birth defects in animals; (2) at 

least 15 such chemicals were known to cause birth defects in humans; (3) extreme 

caution should be used with these chemicals; and (3) employers should discuss known 

risks of reproductive harm with their female employees. By 1987, NSC knew that an 

epidemiologic study of Digital Equipment Corporation (DEC) workers documented an 

increased risk of miscarriage among fabrication workers in the semiconductor industry. 

 To support allegations of concealment, the proposed third amended complaint 

described statements by the SIA in a 1980 newspaper article, a 1987 white paper, 

testimony before Congress in 1989, as well as comments by NSC employees in two 

newspaper articles in 2000 that the semiconductor industry was safe. The pleading also 

described an SIA-funded study done by the University of California at Davis in the late 

1980’s relating to miscarriages and fertility in the semiconductor industry, as well as a 

“script” developed by the SIA for sharing the study’s results with industry workers. The 

proposed third amended complaint alleged misrepresentation and concealment because 

that SIA-funded study did not explore birth defects and developmental damage (as 

opposed to miscarriages and fertility) and because the “script affirmatively advised 

employees that semiconductor fabs were ‘a safe place for women of child-bearing age to 

work’ ” in terms of miscarriage rates. Because employee “debriefing sessions” by the 

industry “took great pains to avoid and deflect” any discussion of birth defects, they left 

the impression that miscarriages, but not birth defects, were a problem. 

 The proposed third amended complaint went on to allege that “by at least 1987,” 

NSC and the SIA “knew of multiple . . . studies involving the reproductive effects of 

manufacturing chemicals, the results of which were summarized in detail and distributed 

by the Semiconductor Safety Association.” Notwithstanding this knowledge, NSC’s 

1995 Chemical and Radiation Safety Handbook contained no information pertaining to 

reproductive harm or pregnancy and NSC’s employee hazard training in the 1980’s and 
11

1990’s was silent regarding the potential for reproductive harm from work in the 

semiconductor industry. 

 NSC opposed the motion for reconsideration on a number of grounds, including 

that Plaintiffs had not explained why they could not have discovered this information 

sooner, that the statements were made by third parties who were not defendants, that 

Plaintiffs had not alleged that Parents heard or relied on any of the facts set forth in the 

third amended complaint, and that the “new facts” did not justify Parents’ failure to 

investigate. 

 The court denied the motion for reconsideration. On November 1, 2011, the court 

entered a judgment of dismissal as to Plaintiffs. 

DISCUSSION

I. Standard of Review 

We perform an independent review of a ruling on a demurrer and decide de novo 

whether the challenged pleading states facts sufficient to constitute a cause of action. 

(Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 

48 Cal.4th 32, 42; McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) “In 

reviewing the sufficiency of a complaint against a general demurrer, we are guided by 

long-settled rules. ‘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.]” (Blank v. Kirwan (1985) 

39 Cal.3d 311, 318 (Blank); see also Randi W. v. Muroc Joint Unified School Dist. (1997) 

14 Cal.4th 1066, 1075.) In addition to accepting as true all properly pleaded material 
12

facts, we also accept as true those facts that may be implied or inferred from facts 

expressly alleged. (City of Morgan Hill v. Bay Area Air Quality Management Dist. 

(2004) 118 Cal.App.4th 861, 869-870.) 

“It is not the ordinary function of a demurrer to test the truth of the plaintiff’s 

allegations or the accuracy with which he describes the defendant’s conduct. A demurrer 

tests only the legal sufficiency of the pleading.” (Committee on Children’s Television, 

Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) Thus, as noted, “the facts 

alleged in the pleading are deemed to be true, however improbable they may be. 

[Citation.]” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 

604; see also Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [court 

reviewing propriety of ruling on demurrer is not concerned with the “plaintiff’s ability to 

prove . . . allegations, or the possible difficulty in making such proof”].) 

On appeal, we will affirm a “trial court’s decision to sustain the demurrer [if it] 

was correct on any theory. [Citation.]” (Kennedy v. Baxter Healthcare Corp. (1996) 

43 Cal.App.4th 799, 808, fn. omitted.) Thus, “we do not review the validity of the trial 

court’s reasoning but only the propriety of the ruling itself. [Citations.]” (Orange 

Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 

54 Cal.App.4th 750, 757.) 

II. Statute of Limitations for Christopher’s Claims 

 Plaintiffs contend the court erred when it held that the applicable statute of 

limitations is the six-year limitations period in section 340.4, which applies to personal 

injury claims based on birth and pre-birth injuries. They assert that the applicable statute 

of limitations is the two-year limitations period in section 340.8, which applies to injury 

claims “based upon exposure to a hazardous material or toxic substance.” (§ 340.8) 

Plaintiffs argue that both statutes “appear to govern an action for birth or pre-birth 

injuries caused by exposure to hazardous materials or toxic substances” and that section 
13

340.8, the later-enacted, more specific statute, controls over the earlier-enacted, more 

general provision in section 340.4. 

A. General Principles Regarding Statutes of Limitations 

 As the Supreme Court explained in Pooshs v. Phillip Morris USA, Inc. (2011) 

51 Cal.4th 788 (Pooshs), a “statute of limitations strikes a balance among conflicting 

interests. If it is unfair to bar a plaintiff from recovering on a meritorious claim, it is also 

unfair to require a defendant to defend against possibly false allegations concerning longforgotten events, when important evidence may no longer be available. Thus, statutes of 

limitations are not mere technical defenses, allowing wrongdoers to avoid accountability. 

(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395-397 . . . [(Norgart)].) Rather, they 

mark the point where, in the judgment of the Legislature, the equities tip in favor of the 

defendant (who may be innocent of wrongdoing) and against the plaintiff (who failed to 

take prompt action): ‘[T]he period allowed for instituting suit inevitably reflects a value 

judgment concerning the point at which the interests in favor of protecting valid claims 

are outweighed by the interests in prohibiting the prosecution of stale ones.’ ” (Pooshs, 

at p. 797, quoting Johnson v. Railway Express Agency (1975) 421 U.S. 454, 463-464.) 

 “There are several policies underlying such statutes. One purpose is to give 

defendants reasonable repose, thereby protecting parties from ‘defending stale claims, 

where factual obscurity through the loss of time, memory or supporting documentation 

may present unfair handicaps.’ [Citations.] A statute of limitations also stimulates 

plaintiffs to pursue their claims diligently. [Citations.] A countervailing factor, of 

course, is the policy favoring disposition of cases on the merits rather than on procedural 

grounds.” (Fox, supra, 35 Cal.4th 797, 806.) Statutes of limitations are “ ‘designed to 

promote justice by preventing surprises through the revival of claims that have been 

allowed to slumber until evidence has been lost, memories have faded, and witnesses 

have disappeared.’ ” (Adams v. Paul (1995) 11 Cal.4th 583, 592.) Once the statute of 
14

limitations runs, “ ‘the right to be free of stale claims . . . comes to prevail over the right 

to prosecute them.’ ” (Ibid.) 

 “Critical to applying a statute of limitations is determining the point when the 

limitations period begins to run. Generally, a plaintiff must file suit within a designated 

period after the cause of action accrues. (. . . § 312.) A cause of action accrues ‘when 

[it] is complete with all of its elements’—those elements being wrongdoing, harm, and 

causation.” (Pooshs, supra, 51 Cal.4th at p. 797, citing Norgart, supra, 21 Cal.4th at 

p. 397; original italics.) 

 “The most important exception to [the] general rule regarding accrual of a cause of 

action is the ‘discovery rule,’ under which accrual is postponed until the plaintiff 

‘discovers, or has reason to discover, the cause of action.’ [Citation.] Discovery of the 

cause of action occurs when the plaintiff ‘has reason . . . to suspect a factual basis’ for the 

action.”5

 (Pooshs, supra, 51 Cal.4th at p. 797, citing Norgart, supra, 21 Cal.4th at 

pp. 397, 398 and Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111 (Jolly).) 

“ ‘The policy reason behind the discovery rule is to ameliorate a harsh rule that would 

allow the limitations period for filing suit to expire before a plaintiff has or should have 

learned of the latent injury and its cause.’ ” (Pooshs, at pp. 797-798, quoting Buttram v. 

Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 531.) When the plaintiff is a 

minor, it is the knowledge or lack thereof of the parents that determines when the cause 

of action accrues. (Young v. Haines (1986) 41 Cal.3d 883, 890, fn. 4 (Young).) 

 The statutes of limitations at issue in this case are section 340.4 and its antecedent, 

former Civil Code section 29, (both of which apply to pre-birth and birth injuries) and 

section 340.8 (which applies to injuries due to exposure to hazardous materials or toxic 

substances). For clarity and ease of reference, we will sometimes use the parentheticals 

 5

 The discovery rule is also referred to in the case law and the parties’ briefs as the 

“delayed discovery rule.” (See e.g., Fox, supra, 35 Cal.4th at p. 803.) For ease of 

reference, we shall use the term “discovery rule.” 
15

“(pre-birth injuries)” after references to former Civil Code section 29 and section 340.4 

and “(toxic exposures)” after references to section 340.8. 

B. Former Civil Code Section 29 (Statute of Limitations for Pre-Birth 

Injuries Until 1993) 

 Former Civil Code section 29 provided: “A child conceived, but not yet born, is 

to be deemed an existing person, so far as may be necessary for its interests in the event 

of its subsequent birth; but any action by or on behalf of a minor for personal injuries 

sustained prior to or in the course of his birth must be brought within six years from the 

date of the birth of the minor, and the time such minor is under any disability mentioned 

in Section 352 of the Code of Civil Procedure shall not be excluded in computing the 

time limited for the commencement of the action.” Section 352, in turn, provides in 

relevant part: “(a) If a person entitled to bring an action, mentioned in Chapter 3 

(commencing with Section 335)[6]

 is, at the time the cause of action accrued either under 

the age of majority or insane, the time of the disability is not part of the time limited for 

the commencement of the action.” Thus, under the plain language of former Civil Code 

section 29, an action for pre-birth and birth injuries is not tolled by the child’s minority or 

insanity. 

 The second clause of former Civil Code section 29, which sets forth the statute of 

limitations, was added in 1941 and became effective on January 1, 1942. (Stats. 1941, 

ch. 337, § 1; Cal. Const., art. IV, § 8, subd. (c); People v. Verba (2012) 

210 Cal.App.4th 991, 997 [“with some exceptions, statutes enacted by the Legislature in 

one year take effect on January 1 of the following year”].) Former Civil Code section 29 

was subject to the discovery rule. (Young, supra, 41 Cal.3d at pp. 892-893.) The statute 

 6

 The reference to “Chapter 3” in section 352 is to chapter 3 (civil actions other 

than for the recovery of real property) of title 2 (the time of commencing civil actions) of 

part 2 (civil actions) of the Code of Civil Procedure. Chapter 3 includes sections 335 

through 3493⁄4. 
16

was never amended after 1941 and was repealed in 1993. (Stats. 1993, ch. 219, § 2; see 

Historical and Statutory Notes, 6 West’s Ann. Civil Code (2006 ed.) foll. § 29, p. 90.) 

C. Section 340.4 (Statute of Limitations for Pre-Birth Injuries Since 1994) 

 Section 340.4 provides: “An action by or on behalf of a minor for personal 

injuries sustained before or in the course of his or her birth must be commenced within 

six years after the date of birth, and the time the minor is under any disability mentioned 

in Section 352 shall not be excluded in computing the time limited for the 

commencement of the action.” 

 Section 340.4 was enacted in 1992; it became operative on January 1, 1994. 

(Stats. 1992, ch. 163 §§ 16, 161.) Section 340.4 contains language very similar to that of 

the second clause of former Civil Code section 29. (Stats. 1941, ch. 337, § 1.) Section 

340.4 is “ ‘but a continuation of’ ” the second clause of former Civil Code section 29. (In 

re White (2008) 163 Cal.App.4th 1576, 1582, citing Sekt v. Justice’s Court (1945) 

26 Cal.2d 297, 306.) Like its predecessor, under the plain language of section 340.4, an 

action for personal injuries sustained before or at the time of birth is not tolled by the 

child’s minority or insanity, but the limitations period is subject to the discovery rule. 

(Young, supra, 41 Cal.3d at pp. 892-893 [former Civil Code section 29].). 

D. Section 340.8 (Statute of Limitations for Exposure to Toxic Substances) 

 Section 340.8 provides in relevant part: “(a) In any civil action for injury or 

illness based upon exposure to a hazardous material or toxic substance, the time for 

commencement of the action shall be no later than either two years from the date of 

injury, or two years after the plaintiff becomes aware of, or reasonably should have 

become aware of, (1) an injury, (2) the physical cause of the injury, and (3) sufficient 

facts to put a reasonable person on inquiry notice that the injury was caused or 

contributed to by the wrongful act of another, whichever occurs later. [¶] [¶] (c) For 
17

purposes of this section: [¶] (1) A ‘civil action for injury or illness based upon exposure 

to a hazardous material or toxic substance’ does not include an action subject to Section 

340.2 [(limitations period for actions based upon exposure to asbestos)] or 340.5 

[(limitations period for actions based on professional negligence of a health care 

provider)]. [¶] (2) Media reports regarding the hazardous material or toxic substance 

contamination do not, in and of themselves, constitute sufficient facts to put a reasonable 

person on inquiry notice that the injury or death was caused or contributed to by the 

wrongful act of another. [¶] (d) Nothing in this section shall be construed to limit, 

abrogate, or change the law in effect on the effective date of this section with respect to 

actions not based upon exposure to a hazardous material or toxic substance.” 

 Section 340.8, signed into law by the Governor in October 2003, became effective 

on January 1, 2004. (Stats. 2003, ch. 873, p. 6398; Cal. Const., art. IV, § 8, subd. (c).) 

E. Section 352 Tolling for Minority and Insanity Applies to Section 340.8 

 Unlike section 340.4 and former Civil Code section 29, which expressly state that 

section 352 tolling for minority and insanity does not apply to actions for pre-birth and 

birth injuries, section 340.8 is silent regarding section 352 tolling. By its own terms, 

section 352 applies only to civil actions that are mentioned in chapter 3 of title 2 of part 2 

of the Code of Civil Procedure (§§ 335 through 3493⁄4). Since section 340.8 is in 

chapter 3 and section 340.8 does not expressly exclude section 352 tolling, the tolling 

provision in section 352 for minority and insanity applies to section 340.8. 

 In summary, the six-year limitations period in former Civil Code section 29 

governed pre-birth and birth injuries from 1942 through its repeal on December 31, 1993. 

In 1992, the Legislature updated the language of the limitations provision in former Civil 

Code section 29 and moved it from the Civil Code to the Code of Civil Procedure when it 

enacted section 340.4, without making any substantive change. Section 340.4 (pre-birth 

injuries) became operative on January 1, 1994. In 2003, the Legislature added section 
18

340.8, the statute of limitations for causes of action based on exposure to hazardous 

materials and toxic substances, effective January 1, 2004. 

F. Analysis 

 The operative pleading alleges three possible accrual dates for Christopher’s 

injuries: (1) August 27, 1987 (his date of birth), (2) October 1987 (when Parents asked 

NSC about possible chemical exposures), and (3) December 2008 (when Parents learned 

that their attorneys were investigating cases involving birth defects due to chemical 

exposures in the semiconductor industry). We will examine each of these accrual dates 

as they relate to the statutes of limitations at issue to determine whether there is any 

possible analysis under which Christopher’s claims might be timely. 

1. Assuming accrual on Christopher’s birth date (August 27, 1987), 

Plaintiffs’ claims are time-barred under former Civil Code Section 29 

 When Christopher was born on August 27, 1987, the limitations period in former 

Civil Code section 29 governed actions for pre-birth injuries; section 340.8 (toxic 

exposures) had not yet been enacted. Under former Civil Code section 29, Christopher 

was required to bring his claims for pre-birth injuries no later than six years from his 

birth, or by August 27, 1993. This limitations period was not tolled by his minority or 

developmental disability. Thus, assuming Christopher’s claims accrued on his date of 

birth, the original complaint, filed in February 2010, was untimely by more than 16 years. 

2. Assuming delayed accrual until October 1987, Plaintiffs’ claims are 

time-barred under former Civil Code section 29 

 Assuming delayed accrual under the discovery rule and that Christopher’s causes 

of action accrued when his parents made inquiries regarding the cause of his birth defects 

around the time of his diagnosis in October 1987, former Civil Code section 29 still 

applied. Under that section, Christopher was required to file suit within six years of 
19

discovery, or no later than October 1993. Under this analysis, his complaint, filed in 

February 2010, was still untimely by more than 16 years. 

3. Assuming delayed accrual until December 2008, Plaintiffs’ claims 

would be timely under sections 340.4 and 340.8 

 Assuming delayed discovery and that Christopher’s causes of action accrued in 

December 2008 when Parents heard the attorneys’ radio advertisements, the applicable 

statute of limitations for pre-birth and birth injuries was section 340.4. Under section 

340.4, Christopher was required to file suit within six years of discovery, or no later than 

December 2014. But by December 2008, section 340.8 (toxic exposures) was also 

operative. Under section 340.8, Christopher was required to file suit within two years of 

discovery, or no later than December 2010. If the accrual of Christopher’s causes of 

action was delayed until December 2008, then his complaint, filed in February 2010, was 

timely under both section 340.4 (pre-birth injuries) and section 340.8 (toxic exposures). 

 But the statutes at issue were not in effect when Christopher was born or when he 

was diagnosed. Plaintiffs argue that because section 340.8 (toxic exposures) did not 

become operative until January 1, 2004, “it will apply to Christopher’s claims only if they 

were not already time-barred under section 340.4 when section 340.8 became operative.” 

 “Statutes generally operate only prospectively, and ‘[a] new statute that enlarges a 

statutory limitations period [only] applies to actions that are not already barred by the 

original limitations period at the time the new statute goes into effect.’ (Andonagui v. 

May Dept. Stores Co. (2005) 128 Cal.App.4th 435, 440 . . . [(Andonagui)].) To revive 

an expired claim, a new statute of limitations must be made expressly retroactive by the 

Legislature, . . . . (Andonagui, at p. 440; . . . .) ‘The reason for this rule is a judicial 

perception of unfairness in reviving a cause after the prospective defendant has assumed 

its expiration and has conducted his affairs accordingly.’ [Citations.]” (Aguilera v. 

Heiman (2009) 174 Cal.App.4th 590, 596.) 
20

 Neither section 340.4 nor section 340.8 contains language that makes it expressly 

retroactive. Section 340.4 applies only if Christopher’s claims were not already timebarred when it became operative on January 1, 1994, and section 340.8 applies only if 

Christopher’s claims were not already time barred on its effective date, January 1, 2004. 

Assuming Christopher’s causes of action accrued when he was born in August 1987, or 

when his parents made inquiry of NSC in October 1987, under former Civil Code section 

29, he was required to bring suit no later than August 1993 or October 1993. Thus, 

Christopher’s claims were already time barred when sections 340.4 and 340.8 went into 

effect. 

 The only way Christopher’s claims survive is if he has adequately pleaded delayed 

accrual until December 2008 under the discovery rule. If that is the case, Christopher’s 

action would be timely under both section 340.4 and section 340.8, without having to 

consider tolling for minority or insanity. 

4. Plaintiffs’ claims are time-barred because they accrued in October 

1987 

If Plaintiffs’ claims had accrued in December 2008, they would have been timely 

under both sections 340.4 and 340.8. But as we will explain, the allegations of the 

second amended complaint show that the claims accrued in October 1987. Therefore, 

they were time barred under former Civil Code section 29. 

III. Delayed Accrual Under the Discovery Rule 

A. Legal Principles 

 “The discovery rule provides that the accrual date of a cause of action is delayed 

until the plaintiff is aware of her [or his] injury and its negligent cause. [Citation.] A 

plaintiff is held to her [or his] actual knowledge as well as knowledge that could 

reasonably be discovered through investigation of sources open to her [or him].” (Jolly, 
21

supra, 44 Cal.3d at p. 1109, footnote omitted.) “Under the discovery rule, the statute of 

limitations begins to run when the plaintiff suspects or should suspect that her [or his] 

injury was caused by wrongdoing, that someone has done something wrong to her [or to 

him].” (Id. at p. 1110.) In other words, “the limitations period begins once the plaintiff 

‘has notice or information of circumstances to put a reasonable person on inquiry.’ ” (Id.

at pp. 1110-1111, original italics, internal quotations omitted.) “A plaintiff need not be 

aware of the specific ‘facts’ necessary to establish the claim; that is a process 

contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, 

and therefore an incentive to sue, she [or he] must decide whether to file suit or sit on her 

[or his] rights. So long as a suspicion exists, it is clear that the plaintiff must go find the 

facts; she [or he] cannot wait for the facts to find her [or him].” (Id. at p. 1111.) 

Jolly “sets forth two alternate tests for triggering the limitations period: (1) a 

subjective test requiring actual suspicion by the plaintiff that the injury was caused by 

wrongdoing; and (2) an objective test requiring a showing that a reasonable person would 

have suspected the injury was caused by wrongdoing. [Citation.] The first to occur 

under these two tests begins the limitations period.” (Kitzig v. Nordquist (2000) 

81 Cal.App.4th 1384, 1391, citing Jolly, supra, 44 Cal.3d at p. 1110.) 

 “ ‘[O]nce properly pleaded, belated discovery is a question of fact.’ [Citation.] 

. . . ‘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.] . . . ‘However, whenever reasonable minds can draw only one conclusion 

from the evidence, the question becomes one of law.’ [Citation.] Thus, when an appeal 

is taken from a judgment of dismissal following the sustention of a demurrer, ‘the issue is 

whether the trial court could determine as a matter of law that failure to discover was due 

to failure to investigate or to act without diligence.’ ” (E-Fab, Inc. v. Accountants, Inc. 

Services (2007) 153 Cal.App.4th 1308, 1320 (E-Fab).) 
22

Jolly used Miller v. Bechtel Corp. (1983) 33 Cal.3d 868 (Miller) to illustrate 

application of the discovery rule. (Jolly, supra, 44 Cal.3d at p. 1111.) In Miller, the 

California Supreme Court had “held that [the] plaintiff was barred by the statute of 

limitations from pursuing her suit for fraud, even though she filed suit soon after she 

discovered facts confirming her long-held suspicion that her former husband had 

concealed the true worth of his assets during dissolution negotiations. [The Miller court] 

noted that the plaintiff had doubts at the time she signed the dissolution agreement as to 

the actual value of her husband’s Bechtel stock. However, neither she nor her attorney 

took adequate steps then to investigate the matter. Years later, when the stock was sold 

for an amount well beyond that stated during the dissolution discussions, [the] plaintiff 

brought suit. [The Supreme Court] held that her early suspicion put her on inquiry notice 

of the potential wrongdoing, which an investigation would have confirmed. Her failure 

timely to investigate barred the action.” (Jolly, at p. 1111.) 

 “[B]y discussing the discovery rule in terms of a plaintiff’s suspicion of ‘elements’ 

of a cause of action, [the Supreme Court] was referring to the ‘generic’ elements of 

wrongdoing, causation, and harm.” (Fox, supra, 35 Cal.4th at p. 807.) “In so using the 

term ‘elements,’ [the Supreme Court did] not take a hypertechnical approach to the 

application of the discovery rule. Rather than examining whether the plaintiffs suspect 

facts supporting each specific legal element of a particular cause of action, [courts] look 

to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has 

injured them.” (Ibid.) “The discovery rule only delays accrual until the plaintiff has, or 

should have, inquiry notice of the cause of action. The discovery rule does not encourage 

dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if 

they have ‘ “ ‘information of circumstances to put [them] on inquiry’ ” ’ or if they have 

‘ “ ‘the opportunity to obtain knowledge from sources open to [their] investigation.’ ” ’ 

[Citations.] In other words, plaintiffs are required to conduct a reasonable investigation 

after becoming aware of an injury, and are charged with knowledge of the information 
23

that would have been revealed by such an investigation.” (Id. at pp. 807-808.) In this 

context, “injury” means both a person’s physical condition and its negligent cause. (Id. at 

p. 808, fn. 2.) “Thus, physical injury alone is often insufficient to trigger the statute of 

limitations.” (Ibid.) 

 To rely on the discovery rule, “ ‘[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.’ [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.’ ” 

(Fox, supra, 35 Cal.4th at p. 808.) “Simply put, in order to employ the discovery rule to 

delay accrual of a cause of action, a potential plaintiff who suspects that an injury has 

been wrongfully caused must conduct a reasonable investigation of all potential causes of 

that injury. If such an investigation would have disclosed a factual basis for a cause of 

action, the statute of limitations begins to run on that cause of action when the 

investigation would have brought such information to light. In order to adequately allege 

facts supporting a theory of delayed discovery, the plaintiff must plead that, despite 

diligent investigation of the circumstances of the injury, he or she could not have 

reasonably discovered facts supporting the cause of action within the applicable statute of 

limitations period.” (Id. at pp. 808-809.) 

 The California Supreme Court’s application of the discovery rule in Jolly and 

Norgart is instructive. The plaintiff in Jolly sued Eli Lilly and other drug companies that 

manufactured the drug estrogen diethylstilbestrol (DES) for personal injuries she 

sustained as a result of her mother’s ingestion of DES while the plaintiff was in utero. 

(Jolly, supra, 44 Cal.3d at pp. 1107-1108.) Undisputed evidence in Jolly showed that 

“[a]s of 1972, [the] plaintiff was aware or at least suspected” her precancerous condition 

was a result of her mother’s ingestion of DES and attempted to discover the identity of 
24

the manufacturer of the DES her mother had taken. (Id. at p. 1107.) Several companies 

manufactured the drug and Jolly was unable to determine which company manufactured 

the DES her mother took. But “[a]t least as of 1978, [she] was aware of the pendency of 

one or more DES suits alleging that DES manufacturers were liable to those injured . . . .” 

(Id. at p. 1108.) Jolly filed her complaint in early 1981, almost a year after the California 

Supreme Court held that a plaintiff who could not identify the manufacturer of the 

ingested DES could state a cause of action against the manufacturers of a substantial 

percentage of the market share of the drug. (Ibid., citing Sindell v. Abbott Laboratories

(1980) 26 Cal.3d 588.) The parties had agreed that the applicable limitations period was 

the one-year statute of limitations in former section 340, subdivision (3). (Jolly, at pp. 

1108-1109.) Applying the discovery rule, the court held that Jolly’s claims were time 

barred. The court explained that Jolly had “stated that as early as 1978 she was interested 

in ‘obtaining more information’ about DES because she wanted to ‘make a claim’; she 

felt that someone had done something wrong to her concerning DES, that it was a 

defective drug and that she should be compensated. . . . Thus, plaintiff is held to her 

admission; she suspected that defendants’ conduct was wrongful during 1978—well over 

a year before she filed suit. This suspicion would not have been allayed by any 

investigation. To the contrary, a timely investigation would have disclosed numerous 

articles concerning DES and many DES suits filed throughout the country alleging 

wrongdoing.” (Jolly, at pp. 1112-1113.) 

 In Norgart, a wrongful death action, the decedent’s parents sued drug 

manufacturer Upjohn alleging that their daughter, Kristi, had committed suicide by 

means of an intentional overdose of the prescription drug Halcion. (Norgart, supra, 

21 Cal.4th at p. 390.) The trial court granted summary judgment on statute of limitations 

grounds. The Supreme Court held that the action, filed six years after Kristi died, was 

time barred both under the general rule, which required filing within one year of the date 

of death, (former § 340, subd. (3)) and under the discovery rule. (Id. at pp. 393-394.) 
25

The court stated that the plaintiffs’ causes of action “accrued when they came at least to 

suspect, or have reason to suspect, a factual basis for their elements, which occurred as 

early as the date of Kristi’s death on October 16, 1985, but no later than . . . mid-1986. 

Nevertheless, they were not brought until the original complaint was filed on October 16, 

1991.” (Id. at p. 405.) The decedent’s father admitted that, “ ‘around the time of Kristi’s 

death,’ ” he suspected “that ‘something wrong’ had happened to her to cause her death.” 

(Id. at pp. 405-406.) The court held that the plaintiffs “had reason to discover their 

causes of action . . . against Upjohn for manufacturing and distributing Halcion soon after 

Kristi’s death” when “they learned of her depression and [prior] suicide attempts, [as well 

as] her depression and suicide by overdose of prescription drugs, including Halcion, on 

October 16, 1985. And soon after her death, . . . having undertaken an investigation into 

its cause, they had reason to learn of a possible connection to Halcion and Upjohn” which 

“was disclosed by the package insert that the company had prepared for the drug.” (Id. at 

p. 407.) 

 More recently, the California Supreme Court has noted that “California law 

recognizes a general, rebuttable presumption, that plaintiffs have ‘knowledge of the 

wrongful cause of an injury.’ [Citation.] In order to rebut that presumption, ‘ “[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.” ’ [Citation.]” (Grisham v. Philip Morris U.S.A., Inc. (2007) 

40 Cal.4th 623, 638 (Grisham), quoting Fox, supra, 35 Cal.4th at p. 808.) 

B. Analysis 

 The allegations of the second amended complaint do not support a claim of 

delayed discovery after October 1987. Parents became aware of the alleged harm in this 

case when Christopher was diagnosed with retinoblastoma and other birth defects in 
26

October 1987. And this case involves something more than injury alone. Like the 

plaintiffs in Miller, Jolly, and Norgart, who all suspected a wrongful cause of their 

injuries shortly after the injury occurred, Parents suspected that Christopher’s injuries 

were caused by chemical exposure in their workplace. The averments of the second 

amended complaint support the conclusion that they suspected both wrongdoing and the 

alleged cause of Christopher’s injuries shortly after the diagnosis when they went to NSC 

and asked “whether they had worked with or otherwise been exposed to any hazardous 

chemicals.” The use of the word “hazardous” supports the conclusion that Parents 

suspected something in their work environment was dangerous to human health; not 

simply a cause, but a wrongful cause. At that point, they were “required to conduct a 

reasonable investigation of all potential causes of that injury” and were “charged with 

knowledge of the information that would have been revealed by such an investigation.” 

(Fox, supra, 35 Cal.4th at p. 808.) In other words, Parents’ actual suspicion of 

wrongdoing by their employer put them on inquiry notice for purposes of a statute of 

limitations analysis. 

 Since Parents suspected both wrongdoing and the alleged cause of Christopher’s 

injuries in October 1987, Plaintiffs were required to plead that “despite diligent 

investigation of the circumstances of the injury, [Parents] could not have reasonably 

discovered facts supporting the cause of action within the applicable statute of limitations 

period.” (Fox, supra, 35 Cal.4th at pp. 808-809.) In this regard, Plaintiffs allege that 

Parents spoke to Christopher’s doctors throughout his care and treatment, and that the 

doctors never informed them that parental occupational exposure may have caused his 

injuries. But Parents do not allege that they ever discussed with Christopher’s doctors 

their suspicion that Christopher’s condition was caused by parental occupational 

exposure to toxic chemicals. Nor do they allege that the causal connection between 

Parents’ workplace exposure to hazardous chemicals and Christopher’s injuries was not 

known by October 1993 when the limitations period ran (within six years after 
27

Christopher was diagnosed), or that it was discovered later than October 1993 based on 

new scientific information. They do not allege that there were any new scientific studies 

or medical information that exposed the alleged causal link between their workplace 

exposure and Christopher’s injuries that were unavailable to them during the limitations 

period or any time before December 2008. And Plaintiffs have not pleaded that a 

reasonable investigation between 1987 and 1993 would not have revealed a factual basis 

for their claim. 

 Furthermore, the allegations of Plaintiffs’ proposed third amended complaint belie 

their contention that they could not have discovered the cause of Christopher’s injuries 

before December 2008. According to that pleading, which is part of the record in this 

appeal, before 1982, SIA told NSC that animal studies had revealed that the chemicals 

used in the semiconductor industry caused birth defects. And before 1987, a SESHA 

journal article stated that at least 15 chemicals used to manufacture semiconductors were 

known to cause birth defects in humans, at least 18 such chemicals were known to cause 

birth defect in animals, employers like NSC should use caution with these chemicals, and 

employers should discuss potential reproductive harm with their female employees. The 

proposed third amended complaint also alleged that, “by at least 1987,” there were 

“multiple . . . studies involving the reproductive effects of manufacturing chemicals, the 

results of which were summarized in detail and distributed by the Semiconductor Safety 

Association.” The proposed amended complaint does not allege that despite a diligent 

investigation, Plaintiffs (or their attorneys or Christopher’s doctors) would not have been 

able to discover these materials before October 1993 (within six years of Christopher’s 

diagnosis). 

 We also examine whether Plaintiffs have rebutted the presumption that they had 

knowledge of the alleged wrongful cause of Christopher’s injuries, applying the twopronged test from Fox, which requires a plaintiff whose complaint shows on its face that 

the claim would be barred without the benefit of the discovery rule to “ ‘specifically 
28

plead facts to show (1) the time and manner of discovery and (2) the inability to have 

made earlier discovery despite reasonable diligence.’ ” (Fox, supra, 35 Cal.4th at 

p. 808.) As we have noted, this “places the burden on the plaintiff to ‘show diligence’; 

‘conclusory allegations will not withstand demurrer.’ ” (Ibid.) Plaintiffs contend they 

have pleaded adequate facts that satisfy both prongs of this test. 

 “The first prong requires plaintiffs to allege ‘facts showing the time and 

surrounding circumstances of the discovery of the cause of action upon which they rely.’ 

[Citation.] ‘The purpose of this requirement is to afford the court a means of determining 

whether or not the discovery of the asserted [harm] was made within the time alleged, 

that is, whether plaintiffs actually learned something they did not know before.’ ” (EFab, supra, 153 Cal.App.4th 1308, 1324, quoting Bennett v. Hibernia Bank (1956) 

47 Cal.2d 540, 563.) 

 Plaintiffs contend they have adequately pleaded time and manner of discovery 

because the second amended complaint alleges that in December 2008, Parents heard 

radio advertisements that certain attorneys were investigating cases of birth defects 

caused by chemical exposures in the semiconductor industry; that Parents responded to 

the advertisements and retained counsel who began investigating whether Christopher’s 

retinoblastoma and birth defects were caused by parental chemical exposure at NSC; and 

that through this investigation they learned for the first time that Christopher’s injuries 

were caused by harmful chemical exposures at NSC. Plaintiffs further allege that at no 

time prior to retaining counsel did Parents suspect that Christopher’s injuries could be 

caused by parental or in utero exposure to toxic chemicals at NSC and that they “did not 

discover,” “nor through the exercise of reasonable diligence could [they] have 

discovered,” these facts “earlier than December 2008.” 

 We will disregard Plaintiffs’ conclusory allegations that Parents did not suspect 

wrongdoing before December 2008 because these allegations conflict with the allegations 

that in October 1987 they asked NSC whether they had worked with or otherwise been 
29

exposed to hazardous chemicals. When a complaint contains both general allegations 

and specific allegations and a conflict or inconsistency exists between those allegations, 

the specific allegations control over inconsistent general allegations. “Under this 

principle, it is possible that specific allegations will render a complaint defective when 

the general allegations, standing alone, might have been sufficient.” (Perez v. Golden 

Eagle Transit Dist. (2012) 209 Cal.App.4th 1228, 1235-1236 citing Skopp v. Weaver

(1976) 16 Cal.3d 432, 437.) Here, the specific allegations that support the conclusion 

that Parents actually suspected wrongdoing and were on inquiry notice in October 1987 

control over the general allegation that Parents did not suspect wrongdoing until they saw 

the attorney advertisements in 2008. 

 Even if we consider the allegations that Plaintiffs did not discover their causes of 

action until December 2008, they are still insufficient to satisfy the “time and manner of 

discovery” prong of Fox. Plaintiffs argue otherwise, relying on this court’s opinion in EFab, supra, 153 Cal.App.4th 1308. The plaintiff in E-Fab, a corporation, sued an 

employment agency for negligence, breach of contract, and negligent misrepresentation 

after Vickie Hunt (an employee referred by the agency) embezzled money from the 

plaintiff between 1996 and 2003. (Id. at pp. 1313-1315.) In support of delayed accrual 

under the discovery rule, the “plaintiff allege[d] that it ‘did not become aware of, nor did 

it have any reason to suspect, that Vickie Hunt had prior convictions for theft and welfare 

fraud and that her academic credentials had not been verified until after her 

embezzlement became known in November 2003 when Plaintiff was first informed of . . . 

Hunt’s criminal record by the police. It was at that time that Plaintiff first became aware 

that . . . Hunt had not been “screened” by [defendant] and that [defendant’s] 

representations as to her background were false.’ ” (Id. at 1324.) “Given the specificity 

of the foregoing allegations, [this court] conclude[d] that the factual circumstances of 

plaintiff’s discovery of defendant’s wrongdoing [were] sufficiently asserted to meet [the] 

first pleading requirement of the delayed discovery rule.” (Ibid.) The court bolstered its 
30

conclusion by comparing the averments of the complaint in E-Fab with “the insufficient 

pleadings found in other cases” and observed that the plaintiff’s allegations in E-Fab

showed “that it ‘actually learned something [it] did not know before.’ ” (Id. at pp. 1324-

1325.) 

 In contrast, as this court noted in E-Fab, the pleading in McKelvey v. Boeing North 

American, Inc. (1999) 74 Cal.App.4th 151 (superseded by statute on another ground as 

stated in Grisham, supra, 40 Cal.4th at page 637) was insufficient because it failed to 

“disclose the time or manner of discovery by any plaintiff” and offered “only conclusory 

allegations of [defendant’s] ‘massive cover-up,’ and allegations that plaintiffs discovered 

that they ‘may have sustained injuries as a result of [defendant’s] wrongs “less than one 

year prior to filing [suit].” ’ Before that time, they say (without elaboration), they did not 

suspect any wrongdoing.” (E-Fab, supra, 153 Cal.App.4th at p. 1325 citing McKelvey, at 

pp. 160-161, fn. omitted.) The complaint in Unpingco v. Hong Kong Macau Corp. 

(1991) 935 F.2d 1043 was also insufficient. The plaintiffs in that case claimed they did 

not discover the facts constituting the fraud until 1988, but failed to explain what it was 

that they discovered in 1988 that finally put them on notice of the alleged fraud. (E-Fab, 

at p. 1325, citing Unpingco, at p. 1046.) 

 Although Plaintiffs here allege that they did not discover Christopher’s claims 

until after they heard attorney advertisements in December 2008, and after they consulted 

with attorneys who conducted an investigation and determined that Plaintiffs had claims, 

they do not allege what facts their attorneys uncovered. Thus, we have no way of 

assessing whether those facts were different from or added anything new to Parents’ 

suspicion in October 1987 that Christopher’s injuries were caused by their exposure to 

hazardous substances at NSC or whether those facts would have been disclosed by a 

reasonable investigation after October 1987. Since the second amended complaint does 

not address this point, we conclude that Plaintiffs have not adequately pleaded time and 

manner of discovery of the wrongful conduct that caused their injuries. Therefore, it is 
31

not necessary to determine whether the allegations of the second amended complaint are 

sufficient to meet the second pleading requirement of the discovery rule (inability to have 

made an earlier discovery). Because Plaintiffs cannot meet the two-pronged test under 

Fox, we hold that they have inadequately pleaded delayed discovery of Christopher’s 

claims. 

 If indeed Christopher’s retinoblastoma and other birth defects were caused by 

parental exposure to hazardous chemicals at work, we are sympathetic to Plaintiffs’ 

desire for a remedy for NSC’s alleged wrongful conduct. But we must apply the 

statutory limitations periods in accordance with the common law discovery rule. 

IV.Timeliness of Debbie’s Claims 

 Plaintiffs contend the trial court erred when it sustained NSC’s demurrer to 

Debbie’s claims for negligent and intentional infliction of emotional distress on the 

ground that they were barred by the two-year statute of limitations for personal injuries in 

section 335.1. Although the trial court’s order did not mention section 335.1 or Debbie’s 

separate claims, the court sustained NSC’s demurrer to Debbie’s causes of action, which 

was based on section 335.1, without leave to amend. We shall therefore address this 

contention. Plaintiffs argue that their “analysis regarding the delayed accrual of 

Christopher’s cause of action under the discovery rule applies with equal force to the 

accrual of [Debbie’s] individual cause[s] of action, as her claims for emotional distress 

are premised on the same acts and omissions by Defendant NSC that resulted in 

Christopher’s injuries.” 

 Claims for negligent and intentional infliction of emotional distress are subject to 

the general personal injury statute of limitations. (Roman v. County of Los Angeles

(2000) 85 Ca1.App.4th 316, 323 [applying one-year statute of limitations in former 

section 340, subd. (3)].) Debbie’s claims are based on (1) alleged acts or omissions by 

NSC while Debbie worked for the company, and (2) alleged misrepresentations regarding 
32

her exposure to workplace chemicals in October 1987. The second amended complaint 

alleges Debbie last worked for NSC in 1987. The personal injury statute of limitations in 

effect in 1987 was former section 340, subdivision (3), which provided that the 

limitations period for an action for “injury . . . caused by the wrongful act or neglect of 

another” was one year. Assuming Debbie’s claims accrued in October 1987, when she 

asked NSC about her exposure to hazardous chemicals, or on December 31, 1987, the 

day she last worked for NSC,7

 she was required to file her complaint no later than 

December 31, 1988. 

 The limitations period for personal injury claims was enlarged to two years by the 

enactment of section 335.1, which became effective on January 1, 2003. (Andonagui,

supra, 128 Ca1.App.4th at p. 440.) With one exception not relevant here, section 335.1 

does not apply retroactively to revive claims that were already time-barred when it 

became effective on January 1, 2003. (Ibid.) Thus, to obtain the benefit of the longer 

limitations period of section 335.1, Debbie’s claims must not have been time-barred as of 

January 1, 2003. (Ibid.) But as we have already stated, assuming her causes of action 

accrued no later than December 31, 1987, they were time barred as of December 31, 

1988, long before the two-year limitations period in section 335.1 went into effect. The 

only manner in which Debbie’s claims could be subject to the two-year limitations period 

in section 335.1 is if the accrual of her claims was delayed until December 2008 under 

the discovery rule. But we have already concluded that the complaint does not state 

sufficient facts to permit Christopher to rely on delayed accrual of his causes of action 

until December 2008 under the discovery rule. Debbie does not allege any different facts 

from those that Christopher relies on to support delayed accrual of her causes of action. 

Therefore, we conclude that Debbie, like Christopher, has not pleaded sufficient facts to 

 7

 Since the second amended complaint alleges only the year and not the specific 

date that Debbie last worked for NSC, we assume she worked there until the last day of 

1987. 
33

support application of the discovery rule in her case, and we hold that her claims for 

negligent and intentional infliction of emotional distress are time-barred. 

V. Leave to Amend 

Plaintiffs argue that if this court finds the allegations of their second amended 

complaint insufficient to demonstrate timeliness under the discovery rule, they should be 

granted leave to amend. 

We review the denial of leave to amend after the sustaining of a demurrer under an 

abuse of discretion standard. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 

1081 (Schifando).) “If we see a reasonable possibility that the plaintiff could cure the 

defect by amendment, then we conclude that the trial court abused its discretion in 

denying leave to amend. If we determine otherwise, then we conclude it did not.” 

(Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320, citing 

Schifando, at p. 1081.) The plaintiff has the burden of proving that an amendment would 

cure the defect. (Ibid.) Furthermore, “[i]f the plaintiff has not had an opportunity to 

amend the complaint in response to the demurrer, leave to amend is liberally allowed as a 

matter of fairness, unless the complaint shows on its face that it is incapable of 

amendment. [Citations.]” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747 

[“second amended complaint does not on its face foreclose any reasonable possibility of 

amendment”].) 

 Plaintiffs argue that if we find the allegations of the second amended complaint 

insufficient under the discovery rule, they can cure the deficiency by alleging “that 

beginning shortly after his birth and continuing thereafter, Christopher received medical 

treatment, including surgery, for his retinoblastoma from Dr. Peter Egbert at Stanford 

Hospital; . . . ; that in response to their questions, Dr. Egbert informed [Parents] that 

retinoblastoma was caused by ‘spontaneous mutation’; and that he never told or 

suggested to them that retinoblastoma could be caused by or was associated with parental 
34

or in utero exposure to chemicals or chemical processes.” While these allegations add 

detail regarding the identity of Christopher’s doctor and what he told Parents, they do not 

add to previous allegations that the doctors never told Parents that Christopher’s injuries 

were related to their workplace exposure. Like previous complaints, the proposed 

amendment does not say whether Parents discussed their suspicions regarding workplace 

exposure with Dr. Egbert, nor does it disclose when the doctor last discussed causation 

with them. 

 Regarding the alleged fraudulent concealment by NSC, Plaintiffs propose 

amending their complaint to allege “that before, during and after [Parents’] employment 

with Defendant NSC, NSC was aware of reproductive health hazards associated with 

chemicals and chemical formulations made and utilized at its manufacturing facilities, 

including in ‘clean rooms’ at its Santa Clara facility where [Parents] worked; that NSC 

concealed and failed to inform its prospective, current and former employees and the 

general public, including [the] Studendorffs, of the reproductive health hazards of these 

chemicals and chemical formulations, whose constituents were known to NSC, but not its 

employees; and that NSC’s concealment and non-disclosure of these matters directly 

contributed to the ignorance of [Parents], Christopher, and his doctors regarding the 

connection between the above described exposures and his grave birth defects and 

injuries.” These proposed amendments do not allege who concealed information, or 

what, if anything, was said to allay Parents’ suspicion that hazardous chemicals at NSC 

caused Christopher’s injuries. The proposed amendments are as conclusory as the 

allegations of the second amended complaint and are insufficient to support a claim of 

fraudulent concealment. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [“fraud 

must be pled specifically; general and conclusory allegations do not suffice”].) 

 The proposed amendments do not state what new information Plaintiffs’ attorneys 

provided after December 2008 that was different from what Parents suspected in October 

1987 or explain why they could not have discovered that information before December 
35

2008. Because plaintiffs have not demonstrated that they could cure the defects in their 

second amended complaint by amendment, even though the trial court gave them ample 

opportunity to do so, we conclude that the trial court did not abuse its discretion in 

denying leave to amend. 

VI. Equitable Estoppel 

 Acknowledging that they did not raise this issue in the trial court, Plaintiffs argue 

that NSC is equitably estopped from relying on the statute of limitations defense because 

NSC knew the chemicals used in its facility were hazardous and could cause severe harm 

to unborn children. Plaintiffs contend: (1) the second amended complaint contains 

sufficient facts to plead equitable estoppel; (2) their failure to raise this theory in the trial 

court does not preclude them from asserting it on appeal; and (3) if we conclude the 

allegations of the second amended complaint are insufficient to plead estoppel, they can 

amend their complaint to cure any deficiency. 

 NSC responds that Plaintiffs have waived any reliance on equitable estoppel by 

failing to raise this theory in the trial court. They also assert that the allegations of the 

second amended complaint do not support application of the doctrine of equitable 

estoppel because Plaintiffs do not allege “a misrepresentation bearing on the necessity of 

bringing a timely suit” and NSC’s “mere denial of legal liability does not set up an 

estoppel.” (Italics original.) 

A. Waiver 

 NSC relies on Green v. Travelers Indemnity Co. (1986) 185 Cal.App.3d 544 

(Green), which reviewed a judgment of dismissal after demurrer. The appellate court in 

Green held that the plaintiffs had waived their estoppel claim because they “failed to 

plead the theory of estoppel and failed to argue that doctrine in the court below, despite 

the fact that they were allowed to amend their complaint and did, in fact, advance lengthy 
36

arguments in opposition to respondents’ demurrers.” (Id. at p. 555.) The court 

explained, “It is, . . . , well settled that a party who has an opportunity to plead estoppel 

on which his cause of action or defense is premised must do so, and that an eventual 

failure to so plead constitutes a waiver of estoppel. [Citations.] It is likewise settled 

(1) ‘that a party to an action may not, for the first time on appeal, change the theory of the 

cause of action’ and (2) ‘that issues not raised in the trial court cannot be raised for the 

first time on appeal.’ [Citation.] The latter rule especially applies to the doctrine of 

estoppel which constitutes factual elements which must be both pled and proved in the 

trial court. [Citations.]” (Ibid.) The Green court offered two other reasons for its 

holding, including that the plaintiffs had not and could not allege facts that would support 

their estoppel claim. (Id. at pp. 555-556.) 

 Like the plaintiffs in Green, Plaintiffs were allowed to amend their complaint 

twice and had two opportunities to present argument in opposition to NSC’s demurrers. 

But unlike the plaintiffs in Green, Plaintiffs’ estoppel claim relies on facts already 

pleaded in their second amended complaint. And some of the reasoning NSC relies on 

from Green is contrary to this court’s holding in Alfaro v. Community Housing 

Improvement System & Planning Assn., Inc. ( 2009) 171 Cal.App.4th 1356 (Alfaro). 

Alfaro stated: “ ‘An appellate court may . . . consider new theories on appeal from the 

sustaining of a demurrer to challenge or justify the ruling. As a general rule a party is not 

permitted to change its position on appeal and raise new issues not presented in the trial 

court. [Citation.] This is particularly true “when the new theory depends on controverted 

factual questions whose relevance thereto was not made to appear” in the trial court. 

[Citation.] However, “a litigant may raise for the first time on appeal a pure question of 

law which is presented by undisputed facts.” [Citations.] A demurrer is directed to the 

face of a complaint (. . . § 430.30, subd. (a)) and it raises only questions of law 

(. . . § 589, subd. (a); [citation]). Thus an appellant challenging the sustaining of a 

general demurrer may change his or her theory on appeal [citation], and an appellate 
37

court can affirm or reverse the ruling on new grounds. [Citations.] After all, we review 

the validity of the ruling and not the reasons given. [Citation.]’ ” (Alfaro, at pp. 1396-

1397, quoting B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 

959.) 

 In light of Alfaro, since Plaintiffs’ equitable estoppel argument relies on facts 

already contained in their pleading, we conclude that they have not waived or forfeited 

the contention that their second amended complaint sufficiently pleads that NSC is 

equitably estopped from relying on the statute of limitations. We turn to the merits of 

that argument. 

B. The Allegations of the Complaint are Insufficient to Support an Equitable 

Estoppel Claim 

 “Equitable tolling and equitable estoppel are distinct doctrines. ‘ “Tolling, strictly 

speaking, is concerned with the point at which the limitations period begins to run and 

with the circumstances in which the running of the limitations period may be suspended. 

. . . Equitable estoppel, however, . . . comes into play only after the limitations period has 

run and addresses . . . the circumstances in which a party will be estopped from asserting 

the statute of limitations as a defense to an admittedly untimely action because his 

conduct has induced another into forbearing suit within the applicable limitations period. 

[Equitable estoppel] is wholly independent of the limitations period itself and takes its 

life . . . from the equitable principle that no man [may] profit from his own wrongdoing in 

a court of justice.” ’ [Citation.]” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383 

(Lantzy).) “One aspect of equitable estoppel is codified in Evidence Code section 623, 

which provides that ‘[w]henever a party has, by his own statement or conduct, 

intentionally and deliberately led another to believe a particular thing true and to act upon 

such belief, he is not, in any litigation arising out of such statement or conduct, permitted 

to contradict it.’ ” (Lantzy, at p. 384.) 
38

 “ ‘A valid claim of equitable estoppel consists of the following elements: (a) a 

representation or concealment of material facts (b) made with knowledge, actual or 

virtual, of the facts (c) to a party ignorant, actually and permissibly, of the truth (d) with 

the intention, actual or virtual, that the ignorant party act on it, and (e) that party was 

induced to act on it.’ [Citations.]” (Transport Ins. Co. v. TIG Ins. Co. (2012) 

202 Cal.App.4th 984, 1013 (Transport).) “The defendant’s statement or conduct must 

amount to a misrepresentation bearing on the necessity of bringing a timely suit; the 

defendant’s mere denial of legal liability does not set up an estoppel.” (Lantzy, supra, 

31 Cal.4th at p. 384, fn. 18; original italics.)” 

 The California Supreme Court has clarified the latter rule in cases involving 

insurance claims. The question in that context is whether the insurer’s statement that the 

insured was not entitled to benefits under the policy was “an unconditional denial of 

liability that would start the running of the statute of limitations” or “a misrepresentation 

of fact on which the insured reasonably relied . . . that could furnish a basis for” an 

estoppel. (Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1149 

(Vu), citing Neff v. New York Life Ins. Co. (1947) 30 Cal.2d 165.) In Vu, an insurance 

adjuster told the insured (a victim of the Northridge earthquake) that he was not entitled 

to any benefits under his earthquake policy because the cost of repair was $3,962.50, 

considerably less than the policy’s $30,000 deductible. (Vu, at p. 1147.) After the 

limitations period expired, the insured hired an appraiser who opined that his damages far 

exceeded his deductible. The court concluded that the adjuster’s statement was a 

misrepresentation of fact and that since the insurer “represented incorrectly” that Vu’s 

loss was less that the policy’s deductible, it was estopped from raising the one-year 

statute of limitations as a defense. (Id. at pp. 1152-1154.) 

 In Lantzy, the Supreme Court addressed the adequacy of a complaint to plead 

equitable estoppel in a case alleging latent construction defects and concluded that the 

allegations in that case were insufficient to establish equitable estoppel. The court stated, 
39

“The complaint’s sole allegation on this issue is ‘that at various times Defendants have 

attempted to make repairs . . . or advised Plaintiffs that the defective windows were not 

defective and not to file a lawsuit,’ but have not properly repaired the leaking windows 

and associated damage, and ‘are [therefore] estopped to assert that Plaintiffs have not 

commenced this action in a timely fashion.’ ” (Id. at p. 385, original italics.) The court 

found this allegation insufficient because the complaint was “devoid of any indication 

that defendants’ conduct actually and reasonably induced plaintiffs to forbear suing 

within the 10-year period of section 337.15. There is no suggestion that the repair 

attempts alleged, if successful, would have obviated the need for suit. Moreover, for all 

that appears, the ‘various times’ at which defendants’ alleged conduct occurred were 

times well before the statute of limitations ran out, or even, as the trial court suggested, 

after it had expired. And there is no claim that the inadequacy of these repairs, or the 

falsity of defendants’ alleged ‘no defect’ representations, remained hidden until after the 

limitations period had passed. Hence, plaintiffs have pled no facts indicating that 

defendants’ conduct directly prevented them from filing their suit on time.” (Ibid., 

original italics.) The court also held there was “no reasonable possibility the deficiency 

[could] be remedied by credible amendment of the complaint.” (Id. at pp. 386-388.) 

 Turning to the allegations in this case, we begin with the general rule “that 

estoppel must be specifically ‘pleaded in the complaint with sufficient accuracy to 

disclose [the] facts relied upon.’ ” (Transport, supra, 202 Cal.App.4th at p. 1013.) 

Plaintiffs allege that around October 1987, Parents asked NSC “whether they had worked 

with or otherwise been exposed to any hazardous chemicals. Specifically, Debbie 

. . . contacted [NSC’s] human resources department, which in turn referred her to other 

departments.” They allege that in response to Debbie’s question, NSC “actively 

concealed and by omission failed to provide information,” and that it purported to 

respond “while in fact actively concealing, and failing and refusing to provide, any 

information regarding the nature or potential health hazards of the chemicals and 
40

processes used in its manufacturing facilities or to admit that it was in possession of any 

knowledge or information regarding such hazards.” Plaintiffs allege that NSC “expressly 

and impliedly represented to [them] . . . that the chemicals and substances present in their 

work areas and at their place of employment did not pose a hazard to [Parents] or their 

unborn children” and that Parents “reasonably relied upon such representations.” 

 Unlike the specific allegations in Vu, these allegations are insufficient to support 

an estoppel to assert a statute of limitations defense. In Vu, the plaintiff described his 

interactions with a named claims adjuster who told the plaintiff he was not entitled to 

benefits under his insurance policy because his damages were worth a specific amount 

that was significantly less than his deductible. The plaintiff also alleged that the claims 

adjuster misrepresented the cost of repair and that the actual cost of repair far exceeded 

the deductible. (Vu, supra, 26 Cal.4th at p. 1147.) In contrast, Plaintiffs allege only that 

Parents asked whether they had been exposed to hazardous chemicals. The second 

amended complaint does not allege who Parents talked to (by name, title, or job 

description), that person’s role at NSC and authority to speak for the company, or what 

specific questions Parents asked. Plaintiffs do not allege that they asked about a specific 

chemical or group of chemicals. Instead, they allege generally that Debbie asked about 

exposure to hazardous chemicals. The complaint does not say whether Parents asked if 

the workplace chemicals caused their son’s retinoblastoma or his other unspecified birth 

defects. And they do not state what NSC’s representatives said in response, what 

information NSC actively concealed, or what information NSC representatives failed to 

admit other than that there were hazardous chemicals in the workplace. Importantly, 

there is no allegation that anyone at NSC told Parents they did not have a claim, or that 

they should forbear from suing or acting on their suspicion and investigating their claims 

further. Like the complaint in Lantzy, NSC’s alleged concealment occurred around 

October 1987, long before the six-year limitations period ran. And the complaint 
41

contains only a conclusory allegation that Plaintiffs reasonably relied on the information 

provided by NSC representatives. 

 We conclude that Plaintiffs’ non-specific allegations are too conclusory to support 

the inference that NSC made a misrepresentation of fact on which Parents reasonably 

relied that could furnish a basis for an estoppel. Therefore, we hold that the allegations of 

the complaint at most allege “a denial of legal liability” but do “not set up an estoppel.” 

(Lantzy, supra, 31 Cal.4th at p. 384, fn. 18; original italics.) 

C. Leave to Amend to Allege Estoppel 

 Plaintiffs contend they can amend their complaint “to cure any deficiency” and 

request leave to do so. They argue that amendments could include that Parents 

“reasonably relied on . . . NSC’s statements, made in response to their inquiry after 

Christopher’s diagnosis, that the chemicals and processes at NSC’s Santa Clara 

manufacturing facility were not hazardous to employees or their unborn children and 

were not the cause of Christopher’s injuries. Additionally, they can allege that had they 

been told the truth by NSC, i.e., that the chemicals and processes were reproductively 

toxic and could cause severe injury to unborn children, which NSC knew, they would 

have filed an action against NSC within the limitations period.” (Original italics.) 

 These proposed amendments are as conclusory as the averments of the second 

amended complaint and do not cure the problems identified. In other words, they do not 

allege a “misrepresentation bearing on the necessity of bringing a timely suit.” (Lantzy,

supra, 31 Cal.4th at p. 384, fn. 18; original italics.) We therefore hold that Plaintiffs will 

not be granted leave to amend to plead that NSC is equitably estopped to rely on the 

statute of limitations. 

DISPOSITION

 The judgment is affirmed. The parties shall bear their own costs on appeal. 
 _______________________________ 

 Márquez, J. 

 WE CONCUR: 

 _____________________________________________ 

 Bamattre-Manoukian, Acting P.J. 

 ______________________________ 

 Grover, J.