Filed 12/22/23 Leamy v. East Bay Municipal Utility Dist. CA 1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KRIS LEAMY et al.,

Plaintiffs and Appellants,

v.

EAST BAY MUNICIPAL UTILITY 

DISTRICT,

Defendant and Respondent.

 A167275

 (Contra Costa County

 Super. Ct. No. MSC21-00753)

ORDER MODIFYING OPINION 

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

BY THE COURT:

It is ordered that the opinion filed herein on December 4, 2023, be 

modified as follows:

1. On page 13, after the second sentence of the first full paragraph that 

ends, “they concede that the sound emitted by the Las Aromas plant does not 

reflect the level of noise that will emanate from the Sunnyside Pumping 

Plant,” add as footnote 4, the following footnote, which will require the 

renumbering of all subsequent footnotes: 

4 In a petition for rehearing, plaintiffs assert they 

did not concede but disputed that the sound emitted by 

the Las Aromas plant does not reflect the level of noise 

that will emanate from the Sunnyside Pumping Plant. 

Plaintiffs cite, however, to a “reply separate statement” 
2

in support of their own motion for summary judgment, a 

document not authorized under the Code of Civil 

Procedure. (See Weil & Brown, Cal. Practice Guide: 

Civil Procedure Before Trial (The Rutter Group 2023) 

¶ 10:220.6) In their opposition separate statement to 

defendant’s motion for summary judgment, plaintiffs 

indeed stated the fact that “[t]he sound emitting from 

the Las Aromas Pumping Plant visited by Mrs. Leamy 

in 2019 did not reflect the level of noise that will 

emanate from the Sunnyside Pumping Plant” was 

“[u]ndisputed for purposes of this motion.” We note that 

EMBUD cited to that portion of the record in its 

respondent’s brief, and plaintiffs did not respond to the 

point either in their reply brief or at oral argument in 

response to this court’s tentative opinion. In any event, 

as we explain further below, plaintiffs’ reliance on 

Rehnstrom’s testimony fails to raise a triable issue of 

fact as to delayed discovery.

There is no change in the judgment. 

Appellants’ petition for rehearing is denied.

Dated: 

____________________________

Humes, P.J.
Filed 12/4/23 Leamy v. East Bay Municipal Utility Dist. CA 1/1 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KRIS LEAMY et al.,

Plaintiffs and Appellants,

v.

EAST BAY MUNICIPAL UTILITY 

DISTRICT,

Defendant and Respondent.

 A167275

 (Contra Costa County

 Super. Ct. No. MSC21-00753)

In 2011, the East Bay Municipal Utility District (EBMUD) purchased 

property from Kris and Robin Leamy (the Leamys or plaintiffs) for 

construction of a water pumping plant. During negotiations in 2009, a 

representative of EBMUD told the Leamys the pumping plant would emit no 

audible sound. After they sold the property, in 2013 and 2014, the Leamys 

participated in public meetings at which EBMUD represented the sound 

emitted from the plant with mitigation measures in place would be 

approximately equivalent to that of a library. In 2019, however, Kris Leamy

visited a fully constructed plant and was “shocked” at the level of noise she

heard. The Leamys filed a lawsuit alleging several fraud-related and breach 

of contract claims, seeking declaratory relief and rescission of the sale

agreement.
2

The trial court granted a motion for summary judgment in favor of 

EBMUD on the grounds that the applicable statutes of limitations barred 

plaintiffs’ claims, and their fraud claims failed because EBMUD’s 

representations were not statements of past or existing fact on which a fraud 

claim could be premised. We will affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Leamys Sell Property to EBMUD

EBMUD is a public agency that provides water to 1.44 million 

customers. In doing so, EBMUD uses many miles of pipeline and 124 

pumping plants, which move water from one pressure zone to another. 

In 2006, the EBMUD Board of Directors approved the “ ‘Water 

Treatment and Transmission Improvements Program’ ” (WTTIP), a program 

to construct and improve water facilities in the greater Lamorinda area, 

which includes Lafayette, Orinda, Moraga, and Walnut Creek. As one aspect 

of the WTTIP, EBMUD identified the need for a new pumping plant, the 

Sunnyside Pumping Plant, to increase pumping capacity, replace aging 

infrastructure, and provide water service to customers in the Valley View 

Pressure Zone. 

In June 2011, to obtain a site for the Sunnyside Pumping Plant,

EBMUD purchased an undeveloped 0.58-acre portion of the Leamys’ 19-acre 

property in Lafayette in lieu of acquiring it through the power of eminent 

domain. 

B. EBMUD Representations During Negotiations

During negotiations for the sale of their property, the Leamys contacted

Paul Kenny, an EBMUD real estate representative, to inquire about the 

potential noise that the Sunnyside Pumping Plant would produce after it was 

constructed and running. Kris Leamy asked Kenny about “potential sound 
3

emitted” from the proposed Sunnyside Pumping Plant. Kenny represented to 

her “that any sound emission from the pumping station would not be 

audible.” 

In January 2009, Robin Leamy e-mailed Kenny to ask if there was a

nearby EBMUD pumping plant he and Kris could visit to determine the noise 

level, size, and visual impact of the proposed project. Kenny suggested they 

visit the Holly Pumping Plant, noting it was operational so they “should be 

able to listen to it,” and that they would be able to determine the noise of the 

future Sunnyside Pumping Plant by listening to the Holly Pumping Plant. 

Plaintiffs visited the Holly Pumping Plant on Sunday, February 1. The 

next day, Robin sent Kenny an e-mail stating, in relevant part: “I did go by 

the Holly Pumping Station this past weekend. Are there certain times those 

stations run? I ask because on Super Bowl Sunday (right around 3:00 p.m.), I 

couldn’t hear a thing (which is great). I’m just wondering if these things are 

going continuously—or they kick in at certain intervals.” 

Kenny forwarded the e-mail to David Rehnstrom, an EBMUD engineer, 

asking him if the Holly Pumping Plant ran continuously. Rehnstrom told 

Kenny that “on the maximum day demand (summer), the pumps may pump 

16 hours and avoid the high energy use of noon to 6:00 pm,” during “lower 

demand periods the pumps would operate less,” and that “[e]ither way, the 

pumps should not pump 24 hours.” 

Kenny then arranged for an EBMUD engineer to visit the Holly 

Pumping Plant with the Leamys to ensure the pumps were running at the 

time of their visit. Kenny called Robin to inform him he had arranged for the 

Leamys to visit the Holly Pumping Plant while it was running. 

On February 4, 2009, Robin e-mailed Kenny that he would check with 

Kris “ ‘on timeframes to head to the Holly Pumping station with you during 
4

daylight hours—I’ll be back to you by tomorrow on this.’ ” The Leamys never 

followed up with Kenny to arrange a visit to a pumping plant when it was 

running. Satisfied with their prior visit, and in reliance on the lack of any 

audible noise from the Holly Pumping Plant, the Leamys completed the sale 

of their property to EBMUD in 2011. 

C. 2013 and 2014 Public Meetings

In July 2013, EBMUD employees met with the Leamys in the first 

“Leamy Realty Group” meeting. At the meeting, Kris commented that she 

had been told that there would be “no noise” at the Sunnyside Pumping 

Plant. An EBMUD representative responded that was not the case and 

EBMUD had “never stated such information.” He indicated, however, that

EBMUD had hired a sound architect to determine how best to mitigate pump 

noise. 

EBMUD’s sound architect conducted short-term and long-term ambient 

noise surveys on and around the property where the Sunnyside Pumping 

Plant would be built. Kris was informed of those surveys, permitted at least 

one noise meter to be located on their property, and requested that a 

measurement device be placed on EBMUD’s southern property line. She also 

requested that sound testing occur after the Labor Day holiday weekend so 

that the measurement would be more representative of typical noise in the 

area. In an e-mail to Rehnstrom, Kris offered that “should the research find 

that there will be discernible noise beyond what EBMUD is willing to pay for 

as part of the mitigation process, [she] would like the opportunity to 

contribute to the mitigation efforts.” 

Later that fall, EBMUD distributed a document entitled “Sunnyside 

Pumping Plant Environmental Noise Assessment and Preliminary Design 

Recommendations,” which provided substantial detail about its noise 
5

mitigation plans. The report described the sound pressure levels of its 

equipment (transformers, pumps, and exhaust fans) as perceived at three feet 

away and discussed that the sound level would drop as the distance from the 

plant is doubled. The report stated that the operation of its transformer 

would result in sound levels of 31 dBA1 at the closest property line, while 

levels at more distant property lines would be lower. The report stated that 

30 dBA was equivalent to the amount of sound emitted by a library. The 

operation of the exhaust fan would result in sound levels of 31 to 32 dBA at 

the closest property line. For the pumps, the report found that the “worst

case operational noise level” at the closest property line would be 47 dBA, 

which would exceed the City of Lafayette’s noise ordinance. The report 

recommended sound mitigation strategies to reduce the noise emissions from 

pump operations. With the acoustical treatments recommended, and in the 

“worst case” scenario where three pumps were operating, the sound level 

would be 35 dBA at the closest property line; with a single pump operating it 

would be 31 dBA. 

EBMUD also conducted multiple public meetings, known as “Citizens 

Liaison Committee” (CLC) meetings, with the Leamys and other community 

members in 2013 and 2014. At the first CLC meeting in December 2013, 

EBMUD’s noise architect, Fred Svinth, presented the results of the ambient 

noise investigation and elaborated on the investigation conducted at and near 

the Sunnyside Pumping Plant location, including on plaintiffs’ property. 

Plaintiffs attended that meeting. Svinth told participants that without 

1 “A decibel (dB) is a unit that describes the amplitude of sound and is 

expressed on a logarithmic scale. A common metric is the overall A-weighted 

sound level measurement (dBA), which measures sound in a fashion similar 

to the way a person perceives or hears sound.” (King & Gardiner Farms, 

LLC v. County of Kern (2020) 45 Cal.App.5th 814, 885, fn. 36.) 
6

mitigation measures, the noise levels produced by three operating pumps at 

the nearest property line could exceed 40 dBA. Svinth indicated with his 

recommended “ ‘acoustical louvers in place’ ” and three pumps running, the 

noise levels at the near property line would be 35 dBA and 32 dBA at the 

façade of the closest neighbor’s house. 

Plaintiffs also attended subsequent CLC meetings in March and June 

2014, at which EBMUD discussed the projected noise impacts of the project 

and the findings from the December 2013 CLC meeting. Kris considered

“[a]ll examples provided to us and neighbors” by EBMUD to represent 

“effectively inaudible sound emission.” 

D. Visit to Las Aromas Pumping Plant

In 2019, plaintiffs’ neighbor, Holly Bender, e-mailed Rehnstrom and 

asked him about a pumping plant that would “give me a similar idea of what 

our station will sound like.” Rehnstrom recommended visiting the Las 

Aromas Pumping Plant, a “newer pumping plant with modern noise control 

measures” located in Orinda. 

Bender, Kris, and Rehnstrom visited the Las Aromas Pumping Plant. 

Bender was “alarmed at the loud and uncomfortable noise” they all heard. 

Kris was “shocked by the level and sound of noise.” In her declaration, Kris 

stated that if she and Robin had known there was “even a remote possibility” 

that the Sunnyside Pumping Plant would emit the same level of noise, they 

never would have sold their land to EBMUD. The parties did not dispute 

that the sound emitted by the Las Aromas Pumping Plant visited by Kris in 

2019 did not reflect the level of noise that will emanate from the Sunnyside 

Pumping Plant. 
7

E. Rehnstrom’s Deposition

At his deposition, Rehnstrom stated that after he visited the Las 

Aromas Pumping Plant with Bender and Kris, he found out there was some 

faulty noise construction at that plant. He also stated if power were shut off 

to the plant, EBMUD would need to bring in a portable generator. 

Rehnstrom also testified that until the Sunnyside Pumping Plant is built and 

running, there is no way to tell with certainty how loud it will be during 

operation. He could not say whether there would be no audible noise at the 

Sunnyside Pumping Plant. 

F. Summary Judgment Proceedings

The Leamys filed their complaint in April 2021, and the first amended 

complaint, the operative pleading, two months later. 

The parties filed cross-motions for summary judgment. EBMUD 

asserted that all of plaintiffs’ claims must fail because they were barred by 

the applicable statutes of limitations and laches, plaintiffs could not establish 

the elements of their various causes of action, and EBMUD was immune from 

liability on their common law claims. In their opposition to EBMUD’s 

motion, plaintiffs argued that EBMUD’s motion must be denied because 

(1) EBMUD failed to disclose the Holly Pumping Plant was not operating 

when Robin visited in 2009, and (2) EBMUD concealed from plaintiffs that 

there was no way to tell with any certainty what level of sound the plant will 

emit once built.2 

The trial court granted EBMUD’s motion for summary judgment and 

denied plaintiffs’ motion. The court ruled EBMUD had demonstrated all of 

plaintiffs’ claims were barred by the applicable statutes of limitations, 

2 Plaintiffs argued that the “statute of limitations did not start to 

accrue until the deposition of Mr. Rehnstrom in this litigation.” 
8

because even assuming EBMUD’s statements in 2009 constituted 

misrepresentations or material omissions, plaintiffs were on inquiry notice 

this was not the case by 2013 and 2014. Further, plaintiffs failed to present 

evidence raising a triable issue of fact that EBMUD made any actionable 

misrepresentations of past or existing material facts about the pumping plant 

that had yet to be built. 

Plaintiffs filed a motion for new trial, which the trial court denied.3 

II. DISCUSSION

A. Standard of Review

On appeal from a summary judgment, we independently review the 

record before the trial court to determine whether there is any triable issue of 

material fact. (Code Civ. Proc., § 437c, subd. (c); Saelzler v. Advanced Group 

400 (2001) 25 Cal.4th 763, 767.) When, as in this case, the defendant moves 

for summary judgment, the defendant bears the initial burden to show that 

the plaintiff cannot establish an essential element of the claim or that the 

defendant has a complete defense to the claim. (Code Civ. Proc., § 437c, 

subds. (a), (o), (p)(2); Saelzler, at p. 768; Aguilar v. Atlantic Richfield Co. 

(2001) 25 Cal.4th 826, 849–850.) Once the defendant has met this burden, 

the burden shifts to the plaintiff to “set forth the specific facts showing that a 

triable issue of material fact exists as to that cause of action or a defense 

thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 849.) Resolution 

of the statute of limitations is normally a question of fact, but “where the 

uncontradicted facts established through discovery are susceptible of only one 

3 Plaintiffs do not challenge the denial of the new trial motion on 

appeal. 
9

legitimate inference, summary judgment is proper.” (Jolly v. Eli Lilly & Co. 

(1988) 44 Cal.3d 1103, 1112.) 

B. Statute of Limitations

Plaintiffs contend the trial court erred in ruling their claims were 

barred by the applicable statutes of limitations. We disagree.

In the operative complaint, plaintiffs asserted eight causes of action for 

(1) rescission, (2) declaratory relief, (3) cancellation of instrument, (4) breach 

of contract, (5) concealment, (6) intentional misrepresentation, (7) negligent 

misrepresentation, and (8) fraud. A three-year statute of limitations governs 

an action for relief on the ground of fraud or mistake. (Code Civ. Proc., § 338, 

subd. (d).) A four-year statute of limitations generally applies to breach of 

contract claims, but where a contractual claim is based on a failure to 

disclose material facts, a three-year statute of limitations applies. (See Vera 

v. REL-BC, LLC (2021) 66 Cal.App.5th 57, 65–66.) “A claim for declaratory 

relief is subject to the same statute of limitations as the legal or equitable 

claim on which it is based.” (Bank of New York Mellon v. Citibank, N.A. 

(2017) 8 Cal.App.5th 935, 943.)

“Generally speaking, a cause of action accrues at ‘the time when the 

cause of action is complete with all of its elements.’ [Citations.] An 

important exception to the general rule of accrual is the ‘discovery rule,’ 

which postpones accrual of a cause of action until the plaintiff discovers, or 

has reason to discover, the cause of action.” (Fox v. Ethicon Endo-Surgery, 

Inc. (2005) 35 Cal.4th 797, 806–807 (Fox).) As our Supreme Court explained 

in Fox, “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 
10

[them] on inquiry’ ” ’or if they have ‘ “ ‘the opportunity to obtain knowledge 

from sources open to [their] investigation.’ ” ’ [Citation.] 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 that 

would have been revealed by such an investigation.” (Id. at pp. 807–808, fn. 

omitted.)

For purposes of summary judgment, we look to the allegations of the

operative complaint to understand the claims at issue. (Jacobs v. Coldwell 

Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 (Jacobs) 

[“ ‘scope of the issues to be properly addressed in [a] summary judgment 

motion’ is generally ‘limited to the claims framed by the pleadings’ ”].) All of 

plaintiffs’ claims are based on the same set of allegations that they sold their 

land to EBMUD in reliance on Kenny’s representation in 2009 that “sound 

emission from the pumping station would not be audible,” and would be 

similar to the level of noise emitted by the Holly Pumping Plant, which 

unbeknownst to plaintiffs, they visited when it was not operating. 

In support of its motion for summary judgment, EBMUD presented

ample evidence that plaintiffs should have suspected by 2014, at the latest,

that audible noise would be emitted by the Sunnyside Pumping Plant when it 

was operating. 

In 2009, Robin visited the Holly Pumping Plant at 3:00 p.m. during the 

Super Bowl and heard no noise coming from the plant. He e-mailed Kenny 

the next day to ask whether there are certain times the station runs because 

he “couldn’t hear a thing.” Kenny did not respond to that e-mail, but called 

Robin to tell him he had arranged a visit for the Leamys to the Holly 

Pumping Plant when EBMUD “could ensure it was running.” Although 

Robin initially told Kenny he would get back to him about times they could 
11

visit, he never followed up to arrange a visit. These undisputed facts show 

that as early as 2009, Robin questioned whether the Holly Pumping Plant 

was operational during his unplanned visit at which he heard “couldn’t hear 

a thing.” 

By 2013 and 2014, plaintiffs were on notice that Kenny’s 

representation that there would be no audible sound from the Sunnyside 

Pumping Plant was not true. At the July 30, 2013 Leamy Realty Group 

meeting, Kris commented that she was told there would be “no noise” from 

the plant and was told by an EBMUD employee that EBMUD had never 

stated such information. EBMUD’s statement directly denying it had made 

such a representation put plaintiffs on notice of a factual basis for their

claims. In addition, at that meeting, EBMUD explained that it had hired a 

sound architect to conduct studies to determine how best to mitigate pump 

noise, again putting plaintiffs on notice that they should investigate how loud 

the noise produced by an operational plant would be. Sound was also a topic 

at the CLC meetings for the Sunnyside Pumping Plant where the anticipated 

sound of the plant was discussed over the course of several meetings. Those 

discussions, including the presentation of Fred Svinth’s noise analysis, which 

indicated specific decibel levels that could be expected from the equipment at 

the plant and efforts EBMUD would make to mitigate excessive noise, put 

plaintiffs on notice the Sunnyside Pumping Plant would emit audible noise 

once built. 

Finally, plaintiffs’ own correspondence with EBMUD shows they were 

on notice the plant would produce audible noise. In August and September 

2013, they made multiple requests regarding sound testing, including that 

EBMUD wait until after the holiday weekend and place a measurement 

device along EBMUD’s southern property line so it would reflect ambient 
12

noise closer to plaintiffs’ planned home location. And in September 2013, 

Kris wrote to EBMUD and offered to help with noise mitigation costs if they 

were beyond what EBMUD was willing to pay. As the trial court observed, 

plaintiffs “must have known there would be sound generated by the Plant as 

they offered to pay for additional sound mitigation if necessary.” (See Fox, 

supra, 35 Cal.4th at p. 807 [“A plaintiff has reason to discover a cause of 

action when he or she ‘has reason at least to suspect a factual basis for its 

elements.”]; Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875 [when a 

plaintiff becomes “aware of facts which would make a reasonably prudent 

person suspicious” that a wrong has occurred, the plaintiff has “a duty to 

investigate further, and [is] charged with knowledge of matters which would 

have been revealed by such an investigation”].)

Plaintiffs contend the statute of limitations did not begin to run as 

early as 2013 or 2014, both because they did not have reason to suspect a 

wrongful injury and because a reasonable investigation by them at that time 

would not have revealed the factual basis for their cause of action. They 

argue the trial court wrongly focused on the difference between the 

representation of no audible noise in 2009, and the public conversations in 

2013 and 2014, about the levels of noise the plant would produce. Rather, 

they assert, the “salient divergences” for purposes of their claims are between 

the 2013 promise in Svinth’s noise assessment that the sound would resemble 

a library and the much louder sound observed at the Las Aromas Pumping

Plant in 2019, and the 2013 description of 31 dBA and Rehnstrom’s 2022 

admission that EBMUD could not really tell how loud the plant would be 

until it was up and running. 

As explained above, however, all of plaintiffs’ claims are based on 

statements EBMUD made in 2009 that the plant would produce no audible 
13

noise, which induced them to sell their property in 2011. By 2013, they were 

aware that was not true. “Under the discovery rule, the statute of limitations

begins to run when the plaintiff suspects or should suspect that [their] injury 

was caused by wrongdoing, that someone has done something wrong to 

[them]. . . . “[T]he limitations period begins once the plaintiff ‘ “ ‘has notice or 

information of circumstances to put a reasonable person on inquiry . . . .’ ” ’ 

[Citation.] 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, [they] must decide whether to file suit or sit on [their] rights. So long 

as a suspicion exists, it is clear that the plaintiff must go find the facts; [they] 

cannot wait for the facts to find [them].” (Jolly v. Eli Lilly & Co., supra,

44 Cal.3d at pp. 1110–1111, fn. omitted.) Here, the undisputed facts show 

plaintiffs were on notice in 2013 that the alleged representation that the 

plant would be inaudible was untrue, both because EBMUD denied that 

representation, and because it held extensive discussions with plaintiffs and 

other community members about the level of noise that would be generated 

by the plant and EBMUD’s planned efforts at mitigation. 

Nor did plaintiffs present any evidence raising a triable issue of fact as 

to a later discovery date. Although they argue that they did not discover the 

level of noise that might be emitted by the Sunnyside Pumping Plant until 

their visit to the Las Aromas Pumping Plant in 2019, they concede that the 

sound emitted by the Las Aromas plant does not reflect the level of noise that 

will emanate from the Sunnyside Pumping Plant. Nor did plaintiffs present

any evidence to suggest the Sunnyside plant will have faulty noise 

construction like the Las Aromas plant did. 
14

We also find unpersuasive plaintiffs’ claim that an investigation in 

2013 or 2014 would not have revealed a basis for their claim because 

Rehnstrom testified at his deposition in 2022 that there is no way to know for 

certain how much sound the Sunnyside Pumping Plant will emit until it is 

actually built. First, as EBMUD points out, plaintiffs did not identify 

Rehnstrom’s testimony as a basis for delayed discovery in their complaint. In 

any event, even if they had, his statements that there is no way to know the 

precise level of sound that will be emitted once the plant is built does not 

change the fact that plaintiffs were on inquiry notice by 2014 that they 

should investigate EBMUD’s representation of no audible noise.

4

Finally, plaintiffs’ reliance on Shaffer v. Debbas (1993) 17 Cal.App.4th 

33, 38–39, in support of their delayed discovery argument is unpersuasive. 

Shaffer concerned equitable estoppel, not delayed discovery. In Shaffer, the 

defendants were equitably estopped from asserting a statute of limitations 

defense as to the plaintiffs’ emotional distress claims because their promises 

to make necessary repairs induced the plaintiffs not to file their lawsuit. (Id. 

at pp. 43–44.) Here, by contrast, the Leamys assert they did not know of, and 

could not have discovered, their injury. They did not plead equitable 

estoppel, allege facts to support it, or argue that theory in their opposition to 

summary judgment below. We will not reverse the judgment on that basis 

now. (See Jacobs, supra, 14 Cal.App.5th at p. 444 [scope of issues on 

summary judgment are limited to claims framed by the pleadings]; May v. 

4 Similarly, plaintiffs failed to raise a triable issue of fact because

EBMUD did not disclose in its 2013 noise assessment that a portable 

generator may be required if the power to the plant is cut. Plaintiffs’ 

operative complaint did not include any allegations regarding omissions 

related to portable generators, and EBMUD submitted evidence the need for 

portable equipment arises during public safety power shut-off events that did 

not exist at the time EBMUD purchased plaintiffs’ property. 
15

City of Milpitas (2013) 217 Cal.App.4th 1307, 1337 [“ ‘ “Estoppel must be 

pleaded and proved as an affirmative bar to a defense of statute of 

limitations.” ’ ”]; Meridian Financial Services, Inc. v. Phan (2021) 

67 Cal.App.5th 657, 698–700 [forfeiture rule applies to appellate review of 

summary judgment].) 

C. Actionable Misrepresentation

The trial court also ruled that EBMUD was entitled to summary 

judgment because the representations on which plaintiffs’ claims were based 

were nonactionable opinions about a future event. 

“It is hornbook law that an actionable misrepresentation must be made 

about past or existing facts; statements regarding future events are merely 

deemed opinions.” (San Francisco Design Center Associates v. Portman 

Companies (1995) 41 Cal.App.4th 29, 43–44; Tarmann v. State Farm Mut. 

Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158 [“ ‘[P]redictions as to future 

events . . . are deemed opinions, and not actionable fraud.’ ”) 

Plaintiffs contend the trial court erred in concluding their claims were 

based on mere expressions of opinion about future events, because EBMUD 

had special expertise and its 2013 environmental noise assessment report 

offered not just opinions but actionable misrepresentations about noise levels 

of the Sunnyside Pumping Plant. Plaintiffs’ claims, however, are not based 

on statements made by EBMUD in the 2013 noise assessment report, but 

their reliance on EBMUD’s alleged assurances when they sold their land 

about a lack of audible noise from the future plant. The representations 
16

made in 2013 were made after plaintiffs sold their property in 2011, and 

therefore could not have induced them to sell.5 

Moreover, even if plaintiffs had alleged the representations by EBMUD

in 2013 and 2014 were misrepresentations, they did not present any evidence 

raising a triable issue of fact that the pumping plant will operate outside 

those projected sound levels. Plaintiffs did not dispute that the Las Aromas 

Pumping Plant they visited in 2019 had some faulty noise construction and 

does not represent the sound level the Sunnyside Pumping Plant will produce 

once built. Moreover, EBMUD introduced evidence regarding the building 

plans for the Sunnyside Pumping Plant and intended noise mitigation 

measures, and plaintiffs did not dispute the plant would be constructed 

consistent with those specifications. The assertion by plaintiffs that the 

plant, once constructed, will produce sound exceeding the levels described in 

the 2013 report is purely speculative. 

Plaintiffs’ reliance on Jolley v. Chase Home Finance, LLC (2013) 

213 Cal.App.4th 872, 892 and Daniels v. Oldenburg (1950) 100 Cal.App.2d 

724, 727, is unpersuasive. In Jolley, a bank loan officer assured the plaintiff 

homeowner that his loan modification application would “ ‘likely’ ” be 

approved, but the bank instead demanded payment in full. (Jolley, at 

pp. 881, 893.) In Oldenburg, the defendants leased a motel to the plaintiffs 

5 Plaintiffs argue in their briefs that the trial court improperly relied on 

Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469–1471,

because unlike the statements made about uncertain future financial 

markets in Cansino, the statements made by EBMUD in its 2013 noise 

assessment were based on its experience and expertise on which plaintiffs 

had a right to rely. While Cansino might be factually distinguishable, had 

plaintiffs raised different claims in this lawsuit, the scope of our review is 

limited by plaintiffs’ claims as alleged in the operative pleading. (Jacobs, 

supra, 14 Cal.App.5th at p. 444.) 
17

by representing they could keep it rented all the time, but the plaintiffs sued 

for rescission when they were unable to rent the rooms. (Oldenburg, at 

pp. 725–729.) Here, as the trial court noted, the Leamys’ allegations that the 

“ ‘currently planned location of the [Sunnyside Pumping Plant] on the 

purchased property, when combined with the very likely audible noise of an 

actual operating pumping plant will constitute a nuisance to the Leamy[s’]

remaining property including their own home,’ ” is mere speculation.

6

In sum, we conclude the trial court properly granted EBMUD’s motion 

for summary judgment because the record shows there was no triable issue of 

material fact regarding any of plaintiffs’ claims and EBMUD was entitled to 

judgment as a matter of law. 

III. DISPOSITION

The judgment is affirmed. EBMUD is to recover its costs on appeal.

6 Nor does Rehnstrom’s statement in his deposition that he cannot say 

with certainty exactly what level of sound the plant will emit once built

contradict the sound architect’s projections in 2013 and 2014, a decade before 

the plant was constructed, about the anticipated noise levels based on the 

surveys he had performed. As the trial court observed, “There is no evidence 

that EBMUD made any affirmative statements that it could determine the 

precise amount of sound that would definitely be produced by the Plant. It 

was clear that all of the discussions were projections and scientific estimates 

based on the surveys and related analysis of the environment and plans for 

the Plant.” 
18

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A167275

Leamy v. East Bay Municipal Utility District