Filed 7/11/17 De La Rosa v. Nelson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



JILL DE LA ROSA et al.,

Plaintiffs and Appellants,

v.

JEFFREY S. NELSON et al.,

Defendants and Respondents.


E064871

(Super.Ct.No. RIC1504201)

OPINION


APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. Reversed.
Werner Law Firm and Lee G. Werner for Plaintiffs and Appellants.
Best Best & Krieger and Gregory G. Snarr for Defendants and Respondents.
Jill De La Rosa (Jill) and Manuel De La Rosa (Manuel) sued Jeffrey S. Nelson (Jeffrey), Sharon J. Nelson (Sharon), and NPG, Inc. (NPG). The trial court sustained, without leave to amend, the demurrer brought by Jeffrey, Sharon, and NPG (collectively, defendants). The trial court found the claims of Jill and Manuel (collectively, plaintiffs) were barred by the statute of limitations. Plaintiffs assert the trial court erred by sustaining the demurrer. We reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. FIRST AMENDED COMPLAINT
Plaintiffs filed their original complaint on April 8, 2015. Jeffrey and Sharon were NPG’s corporate principals. Jill was an employee of NPG “[f]rom approximately 1995 until 2006.” Jill embezzled from NPG. Prior to July 2006, Jeffrey spoke with plaintiffs and plaintiffs’ parents. During the conversations, Jeffrey said he wanted the embezzled money quickly repaid, and if that did not occur, then he would contact law enforcement.
In mid-July 2006, plaintiffs and NPG (through its principals, Jeffrey and Sharon) entered into a written settlement and release agreement. Plaintiffs agreed to pay NPG and Jeffrey $151,400. Each party agreed to release the other from “‘any and all claims, demands, liens, actions, suits, causes of action, obligations, controversies, debts, costs, expenses, damages, judgments, orders, and liabilities of whatever kind or nature in law, equity, or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden, which may have existed or may have existed [sic], or which do exist or which hereafter can, shall or may exist, based on any facts, evens or omissions occurring from the beginning of existence.’”
Plaintiffs’ parents paid $49,400 of the $151,400. Plaintiffs satisfied the remaining debt with a $30,000 cashier’s check, as well as a trailer, jeep, and sand buggy.
On December 8, 2006, Jeffrey contacted the Riverside County Sheriff’s Department. Jeffrey reported that Jill embezzled $242,707.58 from NPG. In April 2007, the Riverside County District Attorney’s Office filed a felony complaint against plaintiffs. Jill was charged with embezzlement. Manuel was charged with grand theft. In 2007, to avoid incarceration, plaintiffs entered into plea agreements, which left open the amount of restitution.
In 2009, the criminal court ordered Jill to pay restitution in the amount of $430,000, and ordered Manuel to pay restitution in the amount of $104,000. The restitution included costs associated with legal and accounting fees. In December 2014, NPG filed a civil lawsuit, seeking to enforce the criminal restitution order. In March 2015, a judgment debtor exam initiated by NPG took place, and plaintiffs’ wedding rings were seized.
Additionally, in May 2012, plaintiffs’ names and photographs appeared in a publication named “Jail Report West—Inland Empire.” The publication was distributed in service stations and liquor stores. Jeffrey caused information about plaintiffs to appear in the publication. The publication was available in the common area of defendants’ business. Further, Jeffrey published false information about plaintiffs on social media “subsequent to May, 2012.”
In plaintiffs’ first cause of action, they alleged NPG breached the 2006 settlement agreement beginning in December 2006 and continuing to the present. In the second cause of action, plaintiffs alleged defendants stole from plaintiffs by fraudulently taking money from plaintiffs. In plaintiffs’ third cause of action they allege, in July 2006, defendants made promises with no intent to perform the promised acts. In the fourth cause of action, plaintiffs alleged defendants negligently misrepresented defendants’ intent to fulfill their promises. In plaintiffs’ fifth cause of action, they allege defendants illegally converted plaintiffs’ personal property to defendants’ property.
Plaintiffs’ sixth cause of action was for intentional infliction of emotional distress. Plaintiffs’ seventh cause of action was for negligent infliction of emotional distress. Plaintiffs’ eighth cause of action alleged willful misconduct. Plaintiffs’ ninth cause of action sought a restraining order to prevent defendants from enforcing the criminal restitution order, i.e., judgment debtor exams and property seizure.
B. DEMURRER
Defendants demurred to the FAC. In the criminal case, Jill argued she was not required to pay restitution to defendants due to the 2006 settlement agreement. The criminal court found plaintiffs “fraudulently induced NPG to execute [the] written release,” for an amount less than plaintiffs stole. The criminal court reduced the restitution award by $150,000 because that amount had already been paid pursuant to the 2006 settlement agreement. In 2015, an outstanding restitution balance of $311,935 was owed. Defendants had the restitution balance converted to a civil judgment.
Defendants raised three arguments. First, defendants asserted the civil court lacked jurisdiction over plaintiffs’ case because the dispute concerned restitution orders issued by the criminal court, and the civil court cannot modify orders of the criminal court. Second, defendants contended causes of action one through eight were barred by the relevant statutes of limitations. Defendants went through each cause of action and explained that plaintiffs’ complaint, at the latest, would have needed to be filed by May 2014.
Third, defendants asserted there was another pending case involving the same issues. Defendants contended a judgment debtor case, involving the same parties and the same criminal restitution debt, was pending in a different trial court department in Riverside County. Defendants asserted the demurrer should be granted to avoid inconsistent rulings and duplication of efforts.
C. OPPOSITION
Plaintiffs opposed the demurrer. First, plaintiffs asserted the civil court had jurisdiction to decide the matter because there was no authority reflecting the court lacked jurisdiction. Second, plaintiffs contended the statutes of limitations did not bar their lawsuit because defendants’ breaches were ongoing from 2006 through December 2014, and the torts continued through March 2015. Third, plaintiffs asserted there was no other pending action because a judgment had already been entered in the judgment debtor case.
D. TENTATIVE RULING
The trial court issued a written tentative ruling sustaining the demurrer without leave to amend because the first through eighth causes of action were time-barred. As to the first cause of action, for breach, the trial court found there was not a continuing or recurring breach because there was not a continuing or recurring obligation. The court found the FAC asserted the initial breach occurred in 2006, and therefore, the cause of action was time-barred.
In regard to the second cause of action, for theft, the trial court found the alleged theft occurred in 2006, and therefore, the cause of action was time-barred. As to the third cause of action, for fraud, the court was “not convinced that there is a fraud claim.” However, to the extent there was a claim, the court found the falsity was discovered when plaintiffs were criminally charged in April 2007, thus causing the claim to be time-barred. The same reasoning applied to the fourth cause of action, for negligent misrepresentation—to the extent there was falsity, it was discovered in April 2007 when plaintiffs were criminally charged, thus causing the cause of action to be time-barred.
As to the fifth cause of action, for conversion, the court found the FAC alleged the act occurred in 2006 so the claim was time-barred. In regard to the sixth and seventh causes of action for intentional and negligent infliction of emotional distress, the trial court found the distress arose during the criminal proceedings and was therefore time-barred. As to the eighth cause of action, for willful misconduct, the trial court explained it was not a separate tort, but an aggravated form of negligence, and therefore, that claim was time-barred as well. In regard to the ninth cause of action, for injunctive relief, the trial court concluded the cause of action failed because there were no underlying claims remaining.
E. HEARING
The trial court held a hearing on the demurrer. Plaintiffs asserted NPG’s December 2014 filing of the civil action was “separate and distinct” from the other alleged breaches. Plaintiffs contended the December 2014 filing of the civil lawsuit underlies the breach of contract, fraud, theft, and negligent misrepresentation causes of action, so they were all within the statute of limitations. Plaintiffs asserted the conversion and emotional distress causes of action involved allegations about 2015, so they were not time-barred.
The trial court asked plaintiffs if defendants breached the 2006 settlement agreement every time they tried to collect the criminal restitution, such that the statute of limitations could be extended indefinitely. Plaintiffs asserted the 2006 settlement agreement created “a covenant not to execute the judgment” or an “acknowledgement of full satisfaction of judgment.” Plaintiffs asserted the events at issue occurred in “January 2015, well within any statute of limitations.”
F. RULING
The trial court concluded the eight causes of action fell outside the statute of limitations. The court found all the causes of action stemmed from the filing of the criminal complaint against plaintiffs. Therefore, the statutes of limitations began to run when the criminal complaint was filed. The trial court was not persuaded that the statute of limitations began when NPG filed its civil lawsuit to enforce the criminal restitution order or that there was an ongoing accrual. The trial court adopted its tentative ruling as its final ruling, sustaining the demurrer without leave to amend.
DISCUSSION
A. STANDARD OF REVIEW
“‘“A demurrer tests the legal sufficiency of the complaint . . . .” [Citations.] On appeal from a dismissal after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law. [Citations.] We give the complaint a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citations.] We deem to be true all material facts properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged.’” (Balikov v. Southern California Gas Co. (2001) 94 Cal.App.4th 816, 819.) “[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.” (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1003.)
B. BREACH OF CONTRACT
Plaintiffs contend the trial court erred by sustaining the demurrer on the breach of contract cause of action.
“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
Plaintiffs alleged a contract existed in that NPG and plaintiffs executed a settlement agreement (the Agreement). In the Agreement, plaintiffs promised to give NPG $151,400 in exchange for NPG’s promise to release plaintiffs from any “judgments, orders, and liabilities of whatever kind or nature in law, equity, or otherwise.”
Plaintiffs alleged they performed their promise by giving NPG $151,400 in cash and goods. Plaintiffs alleged NPG breached the Agreement on December 22, 2014, when it applied for a judgment debtor exam to enforce the criminal restitution order. Plaintiffs were allegedly damaged because the $534,000 liability under the criminal restitution order exceeded the $151,400 liability under the Agreement. Thus, plaintiffs have properly alleged all elements of a breach of contract cause of action.
There is a four-year statute of limitations for a cause of action for breach of a written contract. (Code Civ. Proc., § 337, subd. (1).) Plaintiffs filed their original complaint on April 8, 2015. The breach was alleged to have occurred on December 22, 2014. Accordingly, the breach of contract cause of action is timely because it was brought within four years of the alleged breach.
The trial court found the cause of action was time-barred because, in the FAC, plaintiffs allege the initial breach began in 2006 and continued until the present. “‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.’” (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972 (Guardian).)
Although the FAC alleges the breach began in 2006 and continued to the present, the only civil filing it alleges by NPG is the December 2014 judgment debtor exam application. Therefore, while plaintiffs assert the breach began in 2006 and continued to the present, the only breach described occurred in December 2014. As a result, we are not persuaded that a defect clearly and affirmatively appears on the face of the complaint such that it reflects the cause of action is time-barred because the FAC can reasonably be read as asserting the breach occurred in December 2014.
Defendants contend plaintiffs’ breach of contract cause of action is time-barred because defendants began seeking enforcement of the criminal restitution order in 2009. In support of this argument, defendants cite to the criminal case report, which reflects the criminal court ordered victim restitution and plaintiffs made restitution payments. We do not see where, in those pages, it reflects that defendants, in 2009, personally sought enforcement of the restitution order. Rather, it appears plaintiffs made court-ordered payments, which were enforced by the probation department, as reflected by warrants being issued when plaintiffs failed to make timely payments. In defendants’ respondents’ brief, they do not describe what actions they took in 2009 to personally enforce the restitution order.
In the “Statement of the Issues” section of defendants’ respondents’ brief, defendants cite to a portion of the record reflecting that their attorney, in 2009, filed requests to receive certified copies of the restitution order. Defendants do not provide any citations to documents reflecting they personally sought to enforce the judgment in 2009.
Defendants assert the restitution order was issued in 2009 and they are properly enforcing the valid criminal court restitution order, thus their actions are merely an extension of the criminal court case. Defendants’ argument fails because it is alleged in the FAC that defendants waived their right to enforce any “judgments, orders, and liabilities of whatever kind or nature in law, equity, or otherwise, whether now known or unknown.” This means, based upon the allegations in the FAC, that while the criminal court can issue a restitution order, defendants cannot seek to enforce it—other people or agencies can seek to enforce the restitution order, but defendants exchanged their right to enforce the order for $151,400. (See People v. Vasquez (2010) 190 Cal.App.4th 1126, 1133 [a restitution order is an agreement between the defendant and the state].)
To the extent defendants are asserting they did not waive the right to enforce the criminal restitution order, the alleged language of the Agreement belies such an assertion. The Agreement is alleged to reflect that NPG released plaintiffs from “judgments, orders, and liabilities of whatever kind or nature in law, equity, or otherwise.” Such broad language could include criminal court orders.
C. FRAUD AND NEGLIGENT MISREPRESENTATION
1. CONTENTION
Plaintiffs contend the trial court erred by sustaining the demurrer to their fraud and negligent misrepresentation causes of action.
2. FRAUD
The three-year statute of limitations for fraud does not begin to accrue until the aggrieved party discovers the facts constituting the fraud. (Code Civ. Proc., § 338, subd. (d).) The elements of fraud are: (1) a misrepresentation, (2) knowledge of the falsity, (3) intent to defraud, (4) justifiable reliance, and (5) damages. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973-974.)
The alleged misrepresentation was purported to have been discovered in December 2014 when NPG applied for a judgment debtor examination. Plaintiffs filed their original complaint on April 8, 2015. Therefore, the fraud cause of action was not time-barred because it was filed within three years of the alleged discovery of the misrepresentation, i.e., the civil filing.
The misrepresentation is the promise to release plaintiffs. The knowledge of the falsity is the signed Agreement releasing the plaintiffs, which reflects NPG was aware of its allegedly false promise not to sue plaintiffs. The intent to defraud is shown by the signed Agreement releasing the plaintiffs, the acceptance of the $151,400, and the application for the judgment debtor examination. The justifiable reliance is shown by the plaintiffs’ guilty plea. The damages are shown by the difference between the $534,000 liability under the criminal restitution order and the $151,400 liability under the Agreement. Thus, a cause of action for fraud has been sufficiently pled.
3. NEGLIGENT MISREPRESENTATION
There is a two-year statute of limitations for a negligent misrepresentation cause of action. (Ventura County Nat. Bank v. Macker (1996) 49 Cal.App.4th 1528, 1529, 1531.) The cause of action does not accrue until the falsity is discovered. (Mary Pickford Co. v. Bayly Bros. (1939) 12 Cal.2d 501, 525-526.) Plaintiffs filed their original complaint on April 8, 2015. The falsity was allegedly discovered in December 2014 when NPG applied for a judgment debtor exam. Therefore, the negligent misrepresentation cause of action is timely because it was brought within two years of the alleged discovery of the alleged falsity.
“For a claim of negligent misrepresentation, ‘[a] plaintiff must prove the following in order to recover[:] “[M]isrepresentation of a past of existing material fact, without reasonable ground for believing it to be true, and with intent to induce another’s reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage.”’” (Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 175.)
The misrepresentation was NPG’s promise to release plaintiffs. The lack of reasonable ground for believing the promise to be true is shown by the allegation that NPG applied for a judgment debtor examination. The intent to induce reliance is shown by the signed Agreement and NPG’s alleged acceptance of the $151,400. The ignorance of the truth and justifiable reliance is shown by plaintiffs’ alleged guilty pleas and alleged payment of $151,400. The damage is shown by the difference between the alleged $534,000 liability under the criminal restitution order and the alleged $151,400 liability under the Agreement. Accordingly, a cause of action for negligent misrepresentation has been sufficiently pled.
4. TRIAL COURT’S RULING
The trial court found the two causes of action were time-barred. The trial court concluded plaintiffs “should have realized the falsity by the time that they were criminally charged on 4/2/07.” A victim cannot waive the state’s right to prosecute. (People v. Vasquez, supra, 190 Cal.App.4th at p. 1133.) Therefore, when the district attorney prosecuted plaintiffs, there was no reason for plaintiffs to believe NPG had made a misrepresentation—plaintiffs could properly be prosecuted despite NPG’s release of liability. It was not until December 2014, when NPG personally applied for a judgment debtor exam, that plaintiffs had reason to believe NPG acted falsely because NPG had allegedly waived NPG’s personal right to enforce the restitution order.
D. THEFT
Plaintiffs contend the trial court erred by sustaining the demurrer on their theft cause of action because plaintiffs properly alleged that NPG stole money via false pretenses by (1) accepting $151,400 in exchange for a release of civil liability and then (2) applying to enforce the criminal restitution order.
A person who knowingly takes away the personal property of another by any fraudulent representation is guilty of theft. (Pen. Code, § 484, subd. (a).) The taking away of the personal property of another is shown by NPG allegedly accepting $151,400 in cash and goods from plaintiffs. The fraudulent misrepresentation is shown by the allegations that (1) NPG promised to release plaintiffs from any liability, judgment, or order, and (2) NPG applied for a judgment debtor examination concerning the restitution order. Thus, a cause of action for theft has been sufficiently pled.
There is a three-year statute of limitations for theft. (Code Civ. Proc., § 338, subd. (c)(1).) The statute of limitations begins running when the plaintiff learns of the alleged fraud or when they reasonably should have learned of it. (Code Civ. Proc., § 338, subd. (d); Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 559.) Plaintiffs allege they learned of the alleged false pretenses in December 2014 when NPG applied for a judgment debtor examination. Plaintiffs filed their original complaint on April 8, 2015. Because plaintiffs filed their cause of action within three years of discovering the alleged false pretenses, the cause of action is timely.
The trial court found the theft cause of action was time-barred because “the funds were disbursed pursuant to the settlement agreement and before criminal charges, which logically means 2006.” As set forth ante, the statute of limitations begins to run when the false pretenses are discovered or reasonably should have been discovered, not when the money is taken. (Code Civ. Proc., § 338, subd. (d); Bennett v. Hibernia Bank, supra, 47 Cal.2d at p. 559.) Because the complaint was filed within three years of the alleged false pretenses being discovered, the cause of action is timely.
E. CONVERSION
Plaintiffs contend the trial court erred by sustaining the demurrer on the cause of action for conversion.
“‘“‘Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.’”’” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) “Money may be the subject of conversion if the claim involves a specific, identifiable sum; it is not necessary that each coin or bill be earmarked. [Citation.]” (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 209.)
Plaintiffs’ cause of action for conversion against NPG does not identify the property at issue. It alleges, “Plaintiffs owned and had the right to possession of the personal property described in paragraph 23 above.” Paragraph 23 describes how defendants allegedly spread false rumors about plaintiffs. Paragraph 24 describes the seizure of plaintiffs’ wedding rings at the judgment debtor examination. Accordingly, we infer the reference to paragraph 23 is a typographical error, and plaintiffs intended to cite paragraph 24 for the loss of their wedding rings.
In regard to the wedding rings, plaintiffs allege the wedding rings were their property. The alleged wrongful act was NPG enforcing the criminal restitution order after allegedly agreeing to release plaintiffs from any further obligations, orders, or judgments of any kind. The conversion is the alleged seizing of the wedding rings, which plaintiffs allege was done by NPG. The alleged damages are the loss of the wedding rings. Accordingly, the cause of action for conversion has been sufficiently pled.
The trial court sustained the demurrer on the cause of action for conversion because “[p]laintiff admits this occurred in 2006,” and therefore the court concluded the claim was time-barred. There is a three-year statute of limitations for a conversion cause of action. (Code Civ. Proc., § 338, subd. (c)(1).) The judgment debtor exam is alleged to have occurred on March 15, 2015, and NPG is alleged to have seized the rings at that time. Plaintiffs filed their original complaint on April 8, 2015. Because the complaint was filed within three years of plaintiffs’ wedding rings allegedly being seized, the cause of action is timely.
Defendants assert the rings were properly seized “in furtherance of enforcing [Plaintiffs’] criminal restitution obligations.” According to the allegations in the FAC, NPG waived its right to enforce the criminal restitution order. Therefore, if the rings were seized as part of a proceeding initiated by NPG, then the seizure would be wrongful because NPG allegedly waived its right to bring such a proceeding.
Defendants contend the conversion cause of action is untimely because NPG began enforcing the criminal restitution order in 2009. NPG does not explain what actions it personally took to enforce the criminal restitution order in 2009, and it provides no record citation to support its assertion. (Cal. Rules of Court, rule 8.204(a)(1)(C).) As explained ante, the record reflects restitution was ordered in 2009, and plaintiffs made restitution payments in 2009, but we do not see where NPG personally sought to enforce the restitution order.
The record reflects the probation department enforced the restitution orders in 2009, as reflected by warrants being requested when plaintiffs failed to make timely payments. The probation department, the district attorney’s office, or another agency could properly enforce the restitution order, but defendants cannot, assuming the allegations in the FAC are true. (See People v. Vasquez, supra, 190 Cal.App.4th at p. 1133 [a restitution order is an agreement between the defendant and the state].) Defendants have not explained how they personally, as opposed to an agency, enforced the restitution order in 2009. Accordingly, we find defendants’ contention to be unpersuasive.
F. EMOTIONAL DISTRESS
1. CONTENTION
Plaintiffs contend the trial court erred by sustaining the demurrer on their negligent and intentional infliction of emotional distress causes of action.
2. NEGLIGENT INFLICTION
“Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply.” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.)
Plaintiffs alleged duty arose through the Agreement, in particular the promise to release plaintiffs from any further obligation or judgment. (See The Ratcliff Architects v. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595, 604 [duty of care can arise through a contract].) The duty was allegedly breached when NPG applied for a judgment debtor examination, which resulted in plaintiffs’ wedding rings being seized. Plaintiffs alleged they suffered mental anguish and emotional distress as a result of NPG’s actions. The causation can be inferred as, the loss of plaintiffs’ rings was upsetting and therefore NPG’s act of bringing the judgment debtor examination, which resulted in the loss of the rings, was the cause of plaintiffs’ emotional distress. In sum, a cause of action for negligent infliction of emotional distress has been sufficiently pled.
3. INTENTIONAL INFLICTION
“The elements of the tort of intentional infliction of emotional distress are: ‘“(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct . . . .” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
The extreme and outrageous conduct is alleged to be (1) defendants causing plaintiffs’ photographs and offenses to be published in “Jail Report West—Inland Empire,” a publication that is available in liquor stores and gas stations, which included misinformation about the offenses; (2) defendants leaving copies of “Jail Report West—Inland Empire” in a common area of NPG; (3) Jeffrey posting false and misleading information about plaintiffs on social media; and (4) defendants telling people, such as plaintiffs’ landlord and plaintiffs’ friend’s mother, that plaintiffs stole over $1,000,000.
Plaintiffs alleged the foregoing acts were done willfully, wantonly, and maliciously. The severe or extreme emotional distress is alleged to be “humiliation, mental anguish and emotional and physical distress.” The causation is alleged to be that the publication of the misinformation caused emotional upset. In sum, a cause of action for intentional infliction of emotional distress has been sufficiently alleged. (See Yun Hee So v. Sook Ja Shin (2013) 212 Cal.App.4th 652, 672 [“whether conduct is ‘outrageous’ is usually a question of fact”].)
4. STATUTE OF LIMITATIONS
a) Acts at Issue
In sustaining the demurrer on the emotional distress causes of action, the trial court wrote, “The Court fails to see how Plaintiff[s’] emotional distress could not have arisen during the criminal proceedings.” The trial court concluded the emotional distress causes of action were time-barred.
Plaintiffs may have experienced emotional distress during the criminal proceedings; however, that is not the basis for their emotional distress claims. Plaintiffs’ causes of action can be read as complaining of emotional distress caused by (1) the publication of misinformation; and (2) the seizure of their wedding rings. Therefore, the trial court’s reasoning is flawed. (See Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358 [a demurrer should not be sustained if the plaintiff has stated a cause of action under any possible legal theory].)
b) Law
Intentional and negligent infliction of emotional distress have a two-year statute of limitations. (Code Civ. Proc., § 335.1.) Generally, the statute of limitations begins running when the wrong occurs. (Nogart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) The exception to this general rule 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.” (Ibid.) If a complaint reflects a claim would be time-barred without benefit of the delayed discovery rule, then the plaintiff “‘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 v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)
c) Intentional Infliction of Emotional Distress
Plaintiffs filed their original complaint on April 8, 2015. The oldest alleged publication was the “Jail Report West—Inland Empire” publication, which plaintiffs’ became aware of on May 3, 2012. Plaintiffs assert that subsequent to May 3, 2012, they learned defendants caused information about plaintiffs to be published in “Jail Report West—Inland Empire.”
On the face of the FAC, the allegation concerning “Jail Report West” appears to be time-barred because the injury occurred more than two years before the complaint was filed, e.g. from May 2012 to April 2015. Plaintiffs assert it was after May 3, 2012, that they discovered defendants caused plaintiffs to be included in “Jail Report West.” However, that is the extent of the delayed discovery allegation. Plaintiffs do not allege when they made the discovery (other than subsequent to May 3, 2012), the manner of discovery, or why they could not have discovered the information earlier despite reasonable diligence.
Plaintiffs assert that in March 2015 they learned defendants were republishing the contents of “Jail Report West.” It is unclear from the FAC when the republishing occurred. Because a statute of limitations defect does not clearly and affirmatively appear on the face of the FAC, it cannot be concluded that this allegation is time-barred. (Guardian, supra, 94 Cal.App.4th at pp. 971-972.)
Plaintiffs allege they learned “subsequent to May[] 2012” that Jeffrey was publishing misinformation about plaintiffs on social media. It is unclear from the face of the FAC exactly when the social media posts were made. As a result, it cannot be concluded that the allegation is time-barred. (Guardian, supra, 94 Cal.App.4th at pp. 971-972.)
Plaintiffs allege defendants told people falsehoods about plaintiffs. It is unclear from the face of the FAC exactly when the falsehoods were shared. As a result, it cannot be concluded that the allegation is time-barred. (Guardian, supra, 94 Cal.App.4th at pp. 971-972.)
The allegations concerning the publishing of “Jail Report West” are in the common facts section of the FAC, as are the allegations about social media posts, republishing “Jail Report West,” and telling people falsehoods. The intentional infliction of emotional distress cause of action incorporates all the common facts into the cause of action. Within the cause of action, plaintiffs assert “the acts alleged above” caused them distress. Due to the broad language in the cause of action, the common facts allegations concerning the publishing of “Jail Report West” can be excluded from the intentional infliction of emotional distress cause of action because distinct acts are alleged. (See Fritz v. Ehrmann (2006) 136 Cal.App.4th 1374, 1385-1387 [separate act that is time-barred does not mean all acts are time-barred]; see also Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1343 [portions of the claim are time-barred but others are timely].)
Plaintiffs do not assert that they could amend the allegation concerning the publishing of “Jail Report West.” As a result, we do not examine the possibility of amendment. We conclude the intentional infliction of emotional distress cause of action is not time-barred to the extent it is read as excluding the allegation about the publishing of “Jail Report West.”
d) Negligent Infliction of Emotional Distress
Plaintiffs wedding rings were allegedly seized on March 15, 2015. Plaintiffs filed their original complaint on April 8, 2015. Because the alleged wrongful act occurred within two years of the complaint being filed, the cause of action for negligent infliction of emotional distress is timely.
G. WILLFUL MISCONDUCT
Plaintiffs contend the trial court erred by sustaining the demurrer on their willful misconduct cause of action.
Willful misconduct is “‘“‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care’ [citation].”’” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.) To establish willful misconduct, a plaintiff must prove the basic elements of a negligence cause of action—duty, breach of duty, causation, and damage—as well as the following additional elements that raise the negligent actors’ acts or omissions above a basic want of ordinary care: “‘“(1) actual or constructive knowledge of the peril . . . , (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.”’” (Id. at p. 526, 528.)
In the FAC, plaintiffs incorporate all the common facts into the cause of action for willful misconduct. Plaintiffs allege willful misconduct occurred when defendants did “the acts herein alleged.” As a result, it is unclear exactly which alleged acts plaintiffs intend to rely upon for the willful misconduct cause of action. We will use the seizure of plaintiffs’ wedding rings when examining this issue.
NPG’s duty was created by the Agreement, in which NPG promised to release plaintiffs from any “judgments, orders, and liabilities of whatever kind or nature in law, equity, or otherwise.” The breach occurred when NPG applied for judgment debtor examinations and sought seizure of plaintiffs’ wedding rings. The damage is the loss of the wedding rings. The causation is that plaintiffs’ wedding rings would not have been seized but for NPG breaching its duty. Therefore, basic negligence has been sufficiently pled.
Actual knowledge of the peril is shown by the allegation that NPG requested the seizure of plaintiffs’ wedding rings. Thus, NPG was aware that plaintiffs’ rings could be taken. Actual knowledge that the injury is probable is demonstrated by the allegation that plaintiffs’ rings were seized. It can be inferred from this allegation that NPG was aware of the likelihood that the court would order the seizure of plaintiffs’ rings. Conscious failure to avoid the peril is shown by the allegation that NPG demanded the seizure of plaintiffs’ rings. The allegation reflects NPG actively decided to seek the seizure of plaintiffs’ wedding rings. In sum, the cause of action for willful misconduct has been sufficiently pled.
In sustaining the demurrer on the cause of action for willful misconduct, the trial court wrote, “Willful misconduct is not a separate tort, but rather, ‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care.’ [Citation.] Accordingly, the two year statute of limitations applies.”
There is a two-year statute of limitations for willful misconduct causes of action. (Code Civ. Proc., § 335.1.) The seizure of the wedding rings is alleged to have occurred on March 15, 2015. Plaintiffs filed their original complaint on April 8, 2015. Because the complaint was filed within two years of alleged wrongful act, the cause of action is timely.
H. INJUNCTION
The trial court sustained the demurrer on the cause of action requesting an injunction because “there is no underlying claim remaining,” due to the trial court sustaining the demurrer on all of plaintiffs’ other causes of action. We have concluded the trial court erred by sustaining the demurrer on plaintiffs’ eight causes of action. Accordingly, because there are eight causes of action, we will also reverse the sustaining of the demurrer as it pertained to the injunction cause of action.
I. REQUEST FOR JUDICIAL NOTICE
Plaintiffs request this court take judicial notice of (1) pages one through 15 of the appellants’ appendix in related NPG, Inc. v. De La Rosa et al. (Court of Appeal case No. E065578), which is NPG’s application to assign a civil case number to the criminal restitution order; (2) the webpage of the California Department of Corrections concerning the collection of victim restitution; and (3) the Riverside County Superior Court’s webpage concerning collection of fines and fees.
We take judicial notice of the court record as required by law. (Evid. Code, §§ 452, subd. (d), 453.) Plaintiffs assert we can take judicial notice of the two websites because they are “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) We take judicial notice of the existence of the two websites. (Evid. Code, §§ 452, subd. (h), 453.) We do not take judicial notice of the truth of the websites’ contents. (Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 193-194.)
DISPOSITION
The judgment is reversed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
Acting P. J.


We concur:


SLOUGH
J.


FIELDS
J.