Filed 4/8/15 Aguirre v. Larkin CA2/5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT 

DIVISION FIVE 

JENNIE AGUIRRE et al., 

 Plaintiffs and Appellants, 

 v. 

JOHN LARKIN, AS CO-TRUSTEE OF 

THE RESIDUAL TRUST OF THE FRED 

R. RIPPY TRUST AND AS TRUSTEE OF 

THE QTIP TRUST OF THE FRED R. 

RIPPY TRUST, 

 Defendant and Respondent. 

 B253575 

 (Los Angeles County 

 Super. Ct. No. BC450023) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, Richard 

L. Fruin, Jr., Judge. Affirmed. 

 Park & Sylva, Daniel E. Park, Shahram Shayesteh, Christopher C. Cianci for 

Plaintiffs and Appellants. 

 Squire Patton Boggs, Chris M. Amantea, Adam R. Fox, Adrienne R. Salerno; 

Fuller & Fuller, Bruce Fuller and Kevin Heimler, for Defendant and Respondent. 
2

INTRODUCTION

 Plaintiffs and appellants Jennie Aguirre, Glenn DiCaro, Judy Gilleland, Rosemary 

Islava, Aliyah Islava, Ruth Linnea Karmelich, and Olivia Santos (plaintiffs)1 named 

defendant and respondent John Larkin, as Co-Trustee of the Residual Trust of the Fred R. 

Rippy Trust and as Trustee of the QTIP Trust of the Fred R. Rippy Trust (Larkin), as a 

Doe defendant in a lawsuit concerning the alleged illegal storage and dumping of 

chemicals on real property once owned by the Fred R. Rippy Trust. The trial court 

sustained, without leave to amend, Larkin’s demurrer to the fourth amended complaint on 

statute of limitations grounds, ruling that the Doe amendment did not relate back under 

Code of Civil Procedure section 4742 to the original complaint’s filing date and that 

Larkin had been prejudiced by plaintiffs’ failure timely to serve him with a complaint. 

On appeal, plaintiffs contend that the trial court erred in ruling that their addition of 

Larkin through a Doe amendment did not relate back to the original complaint’s filing 

date; if the relation back doctrine did not apply, then they sufficiently alleged late 

discovery; and the trial court abused its discretion in denying them leave to amend. We 

affirm. 

BACKGROUND

 On November 24, 2010, plaintiffs brought an action for negligence, strict liability, 

public nuisance, negligence per se, strict liability for ultrahazardous activities, and loss of 

consortium against Omega Chemical Corporation (Omega); Omega Chemical PRP 

Group, LLC; Omega Recovery Services Corporation; Tri-Cities Regional Occupational 

Program; Vanowen Holdings, Inc.; and Fred R. Rippy, Inc. alleging that Omega illegally 

stored and dumped chemicals on two parcels of land leased from Fred R. Rippy, Inc.—

 

1 We omit other plaintiffs to the original complaint who were not plaintiffs in the 

fourth amended complaint—the operative pleading on appeal—and are not parties to this 

appeal. 

2 All statutory citations are to the Code of Civil Procedure unless otherwise noted. 
3

12504 and 12512 Whittier Boulevard in the City of Whittier, California—that later 

became known as the Omega Chemical Superfund Site (Omega Site). Except for Aliyah 

Islava, plaintiffs alleged that they worked at the Tri-Cities Regional Occupational 

Program (ROP), which occupied property (ROP Site) that was located across the street 

from the Omega Site and that they were exposed to chemicals that migrated from the 

Omega Site to the ROP Site.3 Plaintiffs alleged that they suffered a variety of illnesses 

due to their chemical exposure. 

 On May 13, 2011, plaintiffs filed a second amended complaint. On June 26, 2012, 

plaintiffs filed three Doe amendments to the second amended complaint including an 

amendment identifying the Fred R. Rippy Trust as “Doe 3.” Larkin and Sarah Rippy 

(Rippy), as Co-Trustees of the Residual Trust of the Fred R. Rippy Trust,4 demurred to 

the second amended complaint. Larkin, as Trustee of the QTIP Trust of the Fred R. 

Rippy Trust, filed a joinder in that demurrer. In their demurrer, Larkin and Rippy argued 

that the second amended complaint was barred by the statute of limitations, failed to 

allege facts sufficient to state a cause of action against the Fred R. Rippy Trust, and was 

uncertain as to the Fred R. Rippy Trust because a trust is not a legal entity that can sue or 

be sued. The trial court sustained the demurrer with leave to amend. 

 On November 15, 2012, plaintiffs filed their third amended complaint naming 

Larkin as “an individual on behalf of the FRED R. RIPPY TRUST.” Plaintiffs continued 

to name the Fred R. Rippy Trust as a defendant and asserted its liability through its 

trustees and their conduct.5 In their third amended complaint, plaintiffs asserted causes 

 

3 Plaintiffs alleged that Aliyah Islava was Rosemary Islava’s daughter and in 

gestation when her mother worked at the ROP Site. 

4 In plaintiffs’ fourth amended complaint, they alleged that at some point after 1987, 

the Fred R. Rippy Trust was divided into a Residual Trust and a QTIP Trust. 

5 The third amended complaint identified as trustees Paul Hendricks, Wayne 

Harvey, Lind Coop, Daniel Stubbs, and Rippy. In her demurrer to the fourth amended 

complaint, Rippy states that Hendricks, Harvey, Coop, and Stubbs, who were not named 
4

of action for negligence, absolute liability for ultrahazardous activity, and public 

nuisance. Larkin, as Trustee of the QTIP Trust of the Fred R. Rippy Trust and CoTrustee of the Residual Trust of the Fred R. Rippy Trust (sometimes referred to as the 

Fred R. Rippy Trust), demurred to the third amended complaint. In his demurrer, Larkin 

argued that the third amended complaint was barred by the statute of limitations, failed to 

allege facts sufficient to state a cause of action against Larkin or the Fred R. Rippy Trust, 

was uncertain as to Larkin because it named him individually and not in his 

representative capacity as a trustee, and was uncertain as to the Fred R. Rippy Trust 

because a trust is not a legal entity that can sue or be sued. 

 Rippy, as Co-Trustee of the Residual Trust of the Fred R. Rippy Trust and as an 

individual on behalf of the Fred R. Rippy Trust, also demurred to the third amended 

complaint. She argued that the causes of action in the third amended complaint were 

uncertain as to the Fred R. Rippy Trust because a trust is not a legal entity that can sue or 

be sued, were barred by the statute of limitations and the relation back doctrine did not 

apply, were barred by laches because plaintiffs’ unreasonable delay in naming the Fred 

R. Rippy Trust prejudiced the trust, and failed to alleged facts sufficient to state a cause 

of action. 

 The trial court sustained the demurrers with leave to amend. The trial court ruled 

that plaintiffs failed to plead facts showing delayed discovery—i.e., facts that would 

bring their filing of the Doe amendment within the two year statute of limitations, and 

that the trustees were improperly named as individuals on behalf of the trust rather than 

as trustees. Plaintiffs’ counsel “acknowledge[d] misnaming or mislabeling” and stated 

that plaintiffs would clarify the late discovery issue in a fourth amended complaint. 

 On July 3, 2013, plaintiffs filed their fourth amended complaint. Among others, 

plaintiffs named as defendants the Fred R. Rippy Trust, Larkin as Trustee of the QTIP 

Trust of the Fred R. Rippy Trust and Co-Trustee of the Residual Trust of the Fred R. 

Rippy Trust, and Rippy as Co-Trustee of the Residual Trust of the Fred R. Rippy Trust. 

 

as defendants in the fourth amended complaint, were dismissed before plaintiffs filed 

their fourth amended complaint 
5

Plaintiffs alleged that the claims against the Fred R. Rippy Trust in the Fourth Amended 

Complaint were brought through the naming of current trustees Larkin and Rippy. 

Plaintiffs further alleged that for some period in 1986 and 1987, the Fred R. Rippy Trust 

owned both parcels of land that constituted the Omega Site.6 They asserted that they 

learned of contamination at the ROP Site from a May 28, 2010, newspaper article. It was 

not until about June 2011, however, that they learned about the Fred R. Rippy Trust’s 

involvement in the contamination—i.e., they learned that the trust knew as early as 1988 

that the Omega Site was contaminated but failed to comply with its duties as a property 

owner to prevent or warn of the hazards on its property. Plaintiffs alleged that they could 

not have learned sooner of the trust’s involvement despite reasonable diligence. 

 Larkin demurred to the fourth amended complaint. In his demurrer, Larkin argued 

that the fourth amended complaint was barred by the statute of limitations, failed to 

alleged facts sufficient to state a cause of action, and was uncertain. 

 Rippy also demurred to the fourth amended complaint. In her demurrer, among 

other arguments, she argued that the fourth amended complaint was barred by laches 

because plaintiffs’ unreasonable delay in serving her as a Doe defendant after 

ascertaining her identity prejudiced her—i.e., prejudiced the Fred R. Rippy Trust. She 

argued, in part, that plaintiffs admitted that they knew of the identity and involvement of 

the Fred R. Rippy Trust in this matter in June 2011. The Fred R. Rippy Trust—which 

was named as Doe 3 on June 26, 2012—was brought into the case 12 months after 

plaintiffs admitted they knew of its identity and involvement in this matter. She claimed 

prejudice because, by the time the Fred R. Rippy Trust was named as Doe 3 and she was 

subsequently named by amendment, 70 depositions had been taken without the trust’s or 

her participation and she would have to retake many of those depositions. Also, because 

other defendants had settled with plaintiffs for $1.75 million and the settlement was the 

 

6 Plaintiffs alleged that Fred Rippy transferred ownership of the 12504 Whittier 

Boulevard parcel to the Fred R. Rippy Trust in 1986 and Francine Rippy transferred 

ownership of the 12512 parcel to the Fred R. Rippy Trust in 1987. In 1987, Omega 

became the owner of both parcels. 
6

subject of a contested motion for good faith settlement that was granted, Rippy was 

precluded from seeking indemnity on behalf of the trust from any of the settling 

defendants. In connection with her reply brief, Rippy submitted a declaration from her 

attorney who stated that more than 60 depositions had been taken before Rippy was 

added as defendant—i.e., through the Doe amendment naming the Fred R. Rippy Trust 

and subsequent amendments naming Rippy in her representative capacity as a Co-Trustee 

of the Residual Trust of the Fred R. Rippy Trust—and that Rippy would have to redepose many of the deponents. 

 The trial court sustained the demurrers to the fourth amended complaint without 

leave to amend. In ruling on Rippy’s demurrer, it stated that it was undisputed that 

plaintiffs knew, on May 28, 2010, that they were potentially injured and the cause of that 

injury. It also was undisputed that Rippy was a record owner of the two parcels that 

constituted the Omega Site. Plaintiffs’ original complaint named other owners of the two 

parcels. Plaintiffs thus were on inquiry notice as to the identities of all record owners. 

The trial court ruled that the Doe amendment as to Rippy did not relate back to the 

original complaint because plaintiffs were not genuinely ignorant of Rippy’s identity 

when they filed their original complaint and Rippy had been prejudiced by plaintiffs’ 

delay in filing the Doe amendment because she was unable to participate in 62 

depositions and was unable to seek indemnity from other defendants whose settlement 

with plaintiffs had been the subject of a motion for good faith settlement that the trial 

court granted. Accordingly, the trial court ruled, plaintiffs’ claims against Rippy were 

barred by the statute of limitations. 

 In sustaining Larkin’s demurrer, the trial court adopted its ruling sustaining 

Rippy’s demurrer. The trial court ruled that plaintiffs had to bring an action naming 

those defendants discoverable through examination of public records within the two-year 

statute of limitations in section 340.8. It also ruled that the facts did not support the 

application of the relation-back doctrine with respect to Larkin and that Larkin was 

prejudiced by late service of the fourth amended complaint. 
7

DISCUSSION

I. Standard of Review

 “The application of the statute of limitations on undisputed facts is a purely legal 

question.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) 

Accordingly, we review de novo an order sustaining a demurrer on statute of limitations 

grounds. (Ibid.) In that review, we take as true the facts alleged in the complaint and 

determine whether those facts establish that the claim is barred as a matter of law. (Ibid.) 

We review a trial court’s decision to not grant leave to amend a complaint for an abuse of 

discretion. (Los Angeles Memorial Coliseum Com. v. Insomniac, Inc. (2015) 233 

Cal.App.4th 803, 819.) A trial court abuses its discretion when there is a reasonable 

possibility that the defect can be cured by amendment. (Ibid.) 

II. Relation Back Under Section 474 

 Plaintiffs contend that the trial court erred in finding that their action against 

Larkin was barred by the statute of limitations. They contend that the June 26, 2012, Doe 

amendment naming the Fred R. Rippy Trust (and, ultimately, Larkin in his representative 

capacity as trustee and co-trustee of the successor trusts) as a defendant related back to 

the November 24, 2010, filing of their original complaint under section 474.7 Plaintiffs 

argue that their action against Larkin was timely because the November 24, 2010, filing 

date was within two years8 of their discovery of contamination on May 28, 2010. 

 

7 Section 474 provides, in relevant part: “When the plaintiff is ignorant of the name 

of a defendant, he must state that fact in the complaint, or the affidavit if the action is 

commenced by affidavit, and such defendant may be designated in any pleading or 

proceeding by any name, and when his true name is discovered, the pleading or 

proceeding must be amended accordingly . . . .” 

8 Section 340.8, subdivision (a), the applicable statute of limitations, provides: “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 
8

Because, however, plaintiffs delayed approximately one year before naming Larkin as a 

defendant after they discovered the Fred R. Rippy Trust’s potential liability in June 2011 

and Larkin was prejudiced by that delay, plaintiffs could not avail themselves of the 

relation back doctrine in section 474. Accordingly, plaintiffs’ June 26, 2012, Doe 

amendment was barred by the statute of limitations in section 340.8 because it was filed 

over two years after plaintiffs discovered contamination on May 28, 2010. 

 Generally, an amended complaint that adds a new defendant does not relate back 

to the original complaint’s filing date and the statute of limitations applies as of the 

amended complaint’s filing date and not the date the original complaint was filed. (Woo 

v. Superior Court (1999) 75 Cal.App.4th 169, 176.) There is an exception to that general 

rule when, under section 474, a new defendant is substituted for a fictitious Doe 

defendant named in the original complaint. (Ibid.) If section 474’s requirements are 

satisfied, an amended complaint substituting a new defendant for a Doe defendant is 

deemed filed on the date the original complaint was filed for statute of limitations 

purposes. (Ibid.; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 

596, 602 [“a defendant sued by a fictitious name and later brought into the case by an 

amendment substituting his true name is considered a party to the action from its 

commencement for purposes of the statute of limitations”].) 

 For section 474 to apply and the filing of an amended complaint to relate back to 

the filing date of the original complaint, the plaintiff must be ignorant of the fictitiously 

named defendant’s name or identity at the time the original complaint was filed. (Hazel 

v. Hewlett (1988) 201 Cal.App.3d 1458, 1464.) Such ignorance “‘includes situations 

where the plaintiff “‘knew the identity of the person but was ignorant of the facts giving 

him a cause of action against the person [citations], or knew the name and all the facts but 

was unaware that the law gave him a cause of action against the fictitiously named 

defendant and discovered that right by reason of decisions rendered after the 

commencement of the action. [Citation.]’” [Citations.]” (Ibid.) 

 

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.” 
9

 Under section 474, a plaintiff does not have to exercise reasonable diligence 

during the period after the complaint was filed up to the expiration of the statute of 

limitations to discover the identity of a fictitious defendant or the facts supporting a cause 

of action. (Streicher v. Tommy’s Electric Co. (1985) 164 Cal.App.3d 876, 883.) 

Similarly, a plaintiff may avail himself of section 474’s relation-back doctrine even if the 

plaintiff’s ignorance of the defendant’s identity resulted from the plaintiff’s negligence. 

(Woo v. Superior Court, supra, 75 Cal.App.4th at p. 177.) When, however, a plaintiff 

satisfies section 474’s requirements, an amendment substituting a named defendant in 

place of a fictitious one will not relate back to the original complaint’s filing date if the 

plaintiff unreasonably delayed in filing the Doe amendment after learning of the newly 

named defendant’s identity and the newly named defendant can show actual prejudice 

caused by the delay. (Hazel v. Hewlett, supra, 201 Cal.App.3d at p. 1466; see A.N. v. 

County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066, quoting Barrows v. American 

Motors Corp. (1983) 144 Cal.App.3d 1, 9; Okoro v. City of Oakland (2006) 142 

Cal.App.4th 306, 313-314 [“The relation-back doctrine can be defeated if the defendant 

shows that the plaintiff ‘was dilatory in amending his complaint, or that defendant 

suffered prejudice from any such delay.’ [Citations.]”].) 

 In this case, even if plaintiffs could satisfy section 474’s requirements—i.e., show 

that they were ignorant of the Fred R. Rippy Trust’s name or identity, their June 26, 

2012, Doe amendment does not relate back to the filing of their original complaint on 

November 24, 2010, because, as the fourth amended complaint shows, they delayed in 

filing their Doe amendment for one year after they learned of the trust’s potential liability 

and Larkin suffered prejudice as a result. (Hazel v. Hewlett, supra, 201 Cal.App.3d at p. 

1466; Okoro v. City of Oakland, supra, 142 Cal.App.4th at pp. 313-314.) With her reply 

brief in support of her demurrer to the fourth amended complaint, Rippy submitted a 

declaration from her attorney in which the attorney stated that more than 60 depositions 

had been taken before Rippy was added as a defendant and that Rippy would have to redepose many of the deponents. Plaintiffs did not file a written objection to the 

declaration, but objected orally at the demurrer hearing that the admission of the 
10

declaration would violate their due process rights. The trial court did not rule on the 

objection. In its ruling on Rippy’s demurrer, the trial court found that Rippy was 

prejudiced by her inability to participate in those depositions. Based on the evidence that 

more than 60 depositions had been taken before the Doe amendment adding the Fred R. 

Rippy Trust, the trial court found that Larkin also was prejudiced by his inability to 

participate in the depositions. 

 The inability to participate in the depositions was prejudicial. At a minimum, the 

depositions could have led to evidence relevant to a defense that non-economic damages, 

if any, should be allocated among the various defendants. (Civ. Code, § 1431.2, subd. (a) 

[“In any action for personal injury, property damage, or wrongful death, based upon 

principles of comparative fault, the liability of each defendant for non-economic damages 

shall be several only and shall not be joint. Each defendant shall be liable only for the 

amount of non-economic damages allocated to that defendant in direct proportion to that 

defendant’s percentage of fault, and a separate judgment shall be rendered against that 

defendant for that amount”]; Wilson v. Ritto (2003) 105 Cal.App.4th 361, 367 [“In 

determining a defendant’s share of fault, the court may consider other joint tortfeasors’ 

degree of fault for the plaintiff’s injuries and reduce the defendant’s share accordingly”].) 

 Plaintiffs rely on A.N. v. County of Los Angeles, supra, 171 Cal.App.4th at page 

1067 which held that a “defendant named in an action by a Doe amendment under section 

474 may challenge the amendment by way of an evidence-based motion, which argues 

that the plaintiff ‘unreasonabl[y] delayed’ his or her filing of the challenged amendment,” 

for the proposition that such a defendant must challenge the amendment through an 

evidence-based motion. Plaintiffs argue that Larkin did not bring such a motion and 

failed to show or even attempt to show or argue that plaintiffs were dilatory or that Larkin 

suffered prejudice from any such delay. Concerning the hardship of re-deposing 

witnesses, plaintiffs state that Rippy, and not Larkin raised the prejudice issue. They 

argue that Rippy’s submission of her attorney’s declaration was untimely because it was 

filed with her reply brief in support of her demurrer and not earlier with the demurrer 

itself. They contend that the trial court should not have considered such late evidence. 
11

Moreover, even if the trial court properly considered such evidence as to Rippy, plaintiffs 

claim, it had no bearing on whether Larkin suffered prejudice. 

 Plaintiffs’ arguments are unavailing. A.N. v. County of Los Angeles, supra, 171 

Cal.App.4th at page 1067 holds that a defendant may, not must, challenge a Doe 

amendment through an “evidence-based motion.” There is no legal or logical reason why 

evidence of prejudice from a delayed Doe amendment may not be considered in 

connection with a demurrer. As for the admissibility of the declaration from Rippy’s 

attorney concerning prejudice, although plaintiffs objected orally at the demurrer hearing 

that the admission of the declaration would violate their due process rights, they forfeited 

review of the issue by failing to press the trial court for a ruling. (People v. Hayes (1990) 

52 Cal.3d 577, 619 [“a party objecting to the admission of evidence must press for an 

actual ruling or the point is not preserved for appeal”].) 

 Even if there were no forfeiture, the trial court could consider the declaration. In 

Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, the plaintiffs brought an 

action against an automobile service company for failure to pay for defects in an 

automobile. Several years later, plaintiffs filed an amendment to the complaint 

substituting another party in the place of a fictitiously named defendant. That defendant 

demurred, asserting that the action was barred by the statute of limitations because 

plaintiffs knew the identity of the defendant when the original complaint was filed and 

therefore could not claim the relation-back benefit of the fictitious name statute. In 

support of the demurrer, the defendant relied on a document attached to the complaint 

and on a declaration its attorney submitted that included pages of a deposition. 

Defendant did not make a request for judicial notice of this material. 

The court noted that plaintiffs did not raise the lack of a request for judicial notice. 

The court stated that taking judicial notice of a document is not the same as accepting the 

truth of its content and that a demurrer is limited to testing the legal sufficiency of the 

complaint. The court observed that various approaches could be taken, but concluded 

that judicially noticed matters can be dispositive on a demurrer “‘only in those instances 
12

where there is not or cannot be a factual dispute concerning that which is sought to be

judicially noticed.’” (Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at p. 375.)9 

 In this case, the attorney declaration submitted with the Rippy’s demurrer 

concerned a claim of prejudice based on Rippy’s inability to participate in discovery. 

The declaration asserted that over 60 depositions had been taken in which Rippy had 

been unable to participate. At the demurrer hearing, plaintiffs did not dispute that over 

60 depositions had been taken in which Rippy had been unable to participate before the 

Fred R. Rippy Trust was added by Doe amendment. That these depositions had taken 

place is not in dispute. On appeal, plaintiffs contend that fewer than 60 declarations were 

taken during the one year that they delayed naming the Fred R. Rippy Trust as a Doe 

defendant, but concede that a significant number of depositions were taken during that 

period. Accordingly, the trial court could rely upon the declaration at the demurrer stage. 

(Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at p. 375 [matters can be 

dispositive on a demurrer “only in those instances where there is not . . . a factual dispute 

concerning that which is sought to be judicially noticed”].) 

 Moreover, notwithstanding Rippy’s submission of her attorney’s declaration in 

connection with her reply brief and not sooner in connection with her demurrer, she 

contended in her demurrer that she had been unable to participate in 70 depositions. 

Thus, plaintiffs were on notice of Rippy’s prejudice contention and, as discussed above, 

did not argue in the trial court that there were not a substantial number of depositions—

whether 62 or 70—that had been taken in which Rippy had been unable to participate. 

Moreover, plaintiffs did not ask for a continuance to present evidence that Rippy did not 

suffer prejudice because she was unable to participate in the depositions. Because 

evidence that showed that over 60 depositions had been taken before the Fred R. Rippy 

 

9 The court said that the relevant facts in that case were not disputed. The court 

concluded that in that case the material did not establish defendant’s involvement in the 

denial of the claim when the complaint was filed, and therefore, plaintiff’s ignorance of 

the true name of the Doe defendant “has not been conclusively shown to be false or 

sham.” (Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at p. 377.) 
13

Trust was added by Doe amendment was properly before the trial court, the trial court 

properly considered it in ruling on Larkin’s demurrer. 

III. Delayed Discovery

 Plaintiffs argue that even if their Doe amendment adding the Fred R. Rippy Trust 

does not relate back to the filing date of their original complaint, the trial court erred in 

ruling that they failed in their fourth amended complaint to allege properly late discovery 

of the trust’s alleged wrongdoing. They contend that the trial court improperly focused 

on whether plaintiffs should have known that the Fred R. Rippy Trust was on title to the 

Omega Site without also considering whether they should have discovered facts 

establishing a basis for the trust’s liability. The trial court did not err. 

 As set forth above, section 340.8, subdivision (a) sets forth the two-year statute of 

limitations for toxic torts. It provides: “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.” 

 The “discovery rule” is an “important exception” to the general rule that “a cause 

of action accrues at ‘the time when the cause of action is complete with all of its 

elements.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.) The 

discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or has 

reason to discover, the cause of action. [Citation.]” (Id. at p. 807.) 

 “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] 

plaintiff whose complaint shows on its face that his claim would be barred without the 

benefit of the discovery rule must specifically plead facts to show (1) the time and 

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

reasonable diligence.’ [Citation.] In assessing the sufficiency of the allegations of 
14

delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; 

‘conclusory allegations will not withstand demurrer.’ [Citation.] [¶] 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.” (Fox v. Ethicon EndoSurgery, Inc., supra, 35 Cal.4th at pp. 808-809.) 

 In their fourth amended complaint, plaintiffs alleged that the Fred R. Rippy Trust’s 

liability depended on the trust’s failure as an owner of the Omega Site to comply with its 

duties to prevent and/or warn about hazards on its property. Therefore, they contended, 

discovery of four internal investigative reports concerning contamination at the Omega 

Site (three of which were initiated and funded by the Fred R. Rippy Trust) that were 

produced in formal discovery by Omega and Fred R. Rippy, Inc. in this action was 

“necessary and important and could not have occurred earlier despite reasonable 

diligence.” They claimed that the reports were issued to Omega and/or the Fred R. Rippy 

Trust and thus were not readily accessible to the public. They alleged that they could not 

have determined the trust’s liability without the reports and the reports were, and only 

could have been, obtained in response to plaintiffs’ formal discovery requests. 

 Plaintiffs’ claim that they could only have obtained knowledge of the Fred R. 

Rippy Trust’s alleged wrongdoing through the four reports produced in formal discovery 

and that they only could have obtained those reports in formal discovery is a “conclusory 

allegation [that] will not withstand demurrer.” (Fox v. Ethicon Endo-Surgery, Inc., 

supra, 35 Cal.4th at p. 808.) Plaintiffs were required to show that they were unable to 

have discovered the alleged wrongdoing despite reasonable diligence. (Ibid.) Once 
15

plaintiffs were on notice of their potential injuries, they were required to “conduct a 

reasonable investigation of all potential causes of that injury.” (Ibid.) The trial court 

found that it was undisputed that Rippy—i.e., the Fred R. Rippy Trust—was a record 

owner of the two parcels that constituted the Omega Site and plaintiffs, in their original 

complaint, named as defendants other owners of the Omega Site. Thus, plaintiffs were 

on notice to conduct an investigation to determine if the Fred R. Rippy Trust, as an owner 

of the Omega Site, played a role in their injuries. (Ibid.) 

 Plaintiffs did not describe in their fourth amended complaint any efforts they took 

to try to determine if the Fred R. Rippy Trust was responsible for the contamination at the 

Omega Site. Instead, they offered an explanation as to why they did not try to determine 

that alleged responsibility. Specifically, they alleged that “[b]ecause of the in-depth 

nature of the historical research required to determine the liability of the [Fred R.] Rippy 

Trust and due to the fact that Plaintiffs’ primary research concerned the immediate issue 

of contamination of the building in which they worked or had worked, as well as 

involved the, at-the-time, known and current parties responsible for said urgent threat, it 

is not and would not have been reasonable for Plaintiffs to have undertaken such 

historical, involved, in-depth efforts as alleged herein until such time that they did, 

following the hiring of attorneys, the initiation of the lawsuit in November 24, 2010, and 

the receipt of the above-mentioned documents from formal discovery.” That is, plaintiffs 

explained that they did not conduct a reasonable investigation to determine if the Fred R. 

Rippy Trust was responsible for their injuries because they believed that their efforts 

were better focused elsewhere. Accordingly, the trial court did not err in finding that 

they failed in their fourth amended complaint to allege properly late discovery of the 

trust’s alleged wrongdoing. (Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at pp. 

808-809.) Thus, as the claim otherwise did not relate back to the filing of the original 

complaint, the claim was untimely. 
16

IV. Leave to Amend

 Plaintiffs contend that the trial court abused its discretion in denying them leave to 

amend to try to allege facts that would establish that they timely brought their claims 

against Larkin. The trial court did not abuse its discretion. 

 Plaintiffs contend that amendments in their fifth amended complaint against the 

remaining defendants explain why they were “genuinely unaware” of the identity of the 

Fred R. Rippy Trust as a prior owner of the Omega Site and why they did not bring the 

trust into the case until June 2012. The fifth amended complaint alleged that “prior to 

and at the time when the initial Complaint was filed in this case, on or about November 

24, 2010, Plaintiffs were genuinely unaware of the [Fred R.] Rippy Trust, its prior 

ownership of the Omega Site properties, and the facts supporting liability against the 

[Fred R.] Rippy Trust. In drafting the initial Complaint during this time, primary reliance 

was given to the public history of the Omega Site released by the EPA. In its public 

history, even the EPA makes no mention of the ownership of the [Fred R.] Rippy Trust or 

the investigations conducted by it in the late 1980s. In its Record of Decision of 

Operable Unit 1, for the Omega Site, the EPA, in fact, incorrectly states that: [‘]Fred R. 

Rippy, Inc. purchased the parcel at 12504 Whittier Boulevard in 1963 and sold it to 

Omega in 1987. . . . [As for the parcel at 12512 Whittier Boulevard, i]n 1984, the 

property was purchased by Fred R. Rippy, Inc., who sold it to Omega in 1987.[’] It is 

alleged herein that this history by the EPA was determined not to be true by Plaintiffs, in 

part, after they received the below-described documents [(the four internal investigative 

reports concerning contamination at the Omega Site that plaintiffs obtained through 

discovery)] in or around June 2011, and, in part, after, in its Motion for Summary 

Judgment filed in June 2012, Rippy Inc. stated (contrary to the EPA’s history) that it was 

not the property owner of the Omega Site parcels during all of times described, but only 

as correctly alleged in this version of the Complaint. Plaintiffs, however, at the time of 

drafting their initial Complaint, should have had no reason to doubt the accuracy of the 

public information provided by the EPA, and to determine that Plaintiffs should have 
17

verified the EPA’s own information places not only an unreasonable burden, but a 

potentially impossible burden, on them at the pleading stage.” 

 Plaintiffs’ fifth amended complaint suffers from the same infirmity as their fourth 

amended complaint. That is, it was undisputed that the Fred R. Rippy Trust was a record 

owner of the two parcels that constituted the Omega Site and plaintiffs failed to allege 

that they conducted a reasonable investigation—i.e., one that included an investigation of 

the Fred R. Rippy Trust as a record owner of the Omega Site, to determine if the Fred R. 

Rippy Trust was responsible for their injuries. (Fox v. Ethicon Endo-Surgery, Inc., 

supra, 35 Cal.4th at pp. 808-809.) Accordingly, because there is not a reasonable 

possibility that the defect in plaintiffs’ fourth amended complaint can be cured by 

amendment, the trial court did not abuse its discretion in denying plaintiffs leave to 

amend. (Los Angeles Memorial Coliseum Com. v. Insomniac, Inc., supra, 233 

Cal.App.4th at p. 819.) 
18

DISPOSITION

 The judgment is affirmed. Larkin is awarded his costs on appeal. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

 MOSK, J. 

We concur: 

 TURNER, P. J. 

 GOODMAN, J.

 

 Judge of the Los Angeles County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.