Winston v. Taylor

Filed 9/27/06 Winston v. Taylor CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Plaintiff, Charel Winston, acting in propria persona, appeals from separate judgments dismissing her negligence (toxic mold) action against defendants Chris Taylor, individually and doing business as The Taylor Company, Diane Taylor (the Taylors), John Souza doing business as Souza’s Custom Homes (Souza), and Sonoran Roofing, Inc. (Sonoran). The dismissals followed sustaining of defendants’ demurrers to plaintiff’s third amended complaint, due to plaintiff’s failure to allege when injury occurred, so as to avoid a statute of limitations problem apparent on the face of the complaint. Plaintiff contends she was entitled to file a fourth amended complaint without leave of court under Code of Civil Procedure section 472 (undesignated statutory references are to the Code of Civil Procedure). She alternatively contends she should be allowed leave to amend. We shall conclude the trial court correctly sustained defendants’ demurrers to the third amended complaint, but plaintiff should be granted leave to amend.^[1]

BACKGROUND

The Original Complaint

On May 13, 2002, plaintiff, acting in propria persona, filed her original complaint against the Taylors, Souza, Sonoran (and a defendant that is not a party to this appeal), asserting negligence and negligent infliction of emotional distress.^[2] The complaint alleged as follows:

In October 1996, the Taylors sold their home to plaintiff’s domestic partner, Alma M. Triche, and (Triche’s mother) Olga L. Nogues. (Triche and Nogues are not parties to this lawsuit.) Plaintiff resided in the house from October 1996, until October 2001. Between 1996 and 1998, she discovered structural defects that allowed water to enter the house (i.e., defective roofing, windows, doors, and drainage system). Plaintiff alleged on information and belief that “by August 23, 2001, as a result of the defects aforementioned giving rise to an environment conducive to the growth and propagation of mold spores, toxic molds, specifically stachbotrys chartarum and aspergillus were growing in the Property’s walls, sub floors, attic, carpets, and were detectable as airborne particles.” Plaintiff alleged defendants negligently designed the property, creating pockets of moisture that over time gave rise to an environment conducive to propagation of toxic mold.

Plaintiff alleged: “On or about August 23, 2001, as a proximate result of defendants[‘] negligence, plaintiff sustained serious bodily injuries as the result of being exposed to toxic mold growing in and about the Property.” Plaintiff alleged she was “injured in her health, strength and activity, and sustained shock and injury to her nervous system including but not limited to, chronic fatigue, sinusitis, achy joints and muscles, upper respiratory infections and distress, migraine headaches, interrupted sleep, depression, anxiety, sore throat, asthma, fibrom[y]algia, lowered body temperature, autoimmune deficiencies, adrenal gland malfunctions, vision impairment and loss of balance.” Plaintiff also alleged emotional distress.

Plaintiff’s request for punitive damages was later stricken by the court.

The Taylors filed an answer to the complaint and asserted as an affirmative defense that the complaint was barred by the one-year limitations period of former section 340. Souza filed an answer, asserting an unspecified statute of limitations. Sonoran filed an answer, asserting the complaint was barred by “applicable” statutes of limitations, including sections 337, 337.1, 337.15, 338, 339, 340, and 343.^[3]

Plaintiff apparently tried, without success, to file an amended complaint without leave of court. She finally filed a motion for leave to file an amended complaint, which the trial court granted.

The First Amended Complaint

On January 12, 2004, plaintiff filed her first amended complaint, adding new defendants (who are not parties to this appeal) and asserting new claims: (1) breach of express warranty; (2) breach of implied warranty; (3) breach of implied warranty of fitness; (4) breach of duty of care; (5) intentional misrepresentation; (6) conspiracy; (7) constructive fraud; (8) strict liability for ultrahazardous activities; (9) breach of environmental provisions; and (10) punitive damages.

The Taylors filed a demurrer, arguing plaintiff was not a party to the contract to buy the property and had no ownership interest in the property.

Sonoran filed a demurrer, arguing lack of privity and the statute of limitations, noting plaintiff’s complaint (1) alleged fraud occurred in 1993, (2) admitted she discovered the alleged structural defects in October 1996, and (3) failed to allege facts excusing her delay in filing suit.

Souza filed a demurrer, asserting the statute of limitations in its memorandum of points and authorities (but not in its notice of demurrer).

In April 2004, the trial court sustained the demurrers without leave to amend as to counts five through 10, but granted leave to amend the first four causes of action. The minute order stated plaintiff would be given leave “to try one more time to plead around the defenses that appear to be dispositive [privity and statute of limitations].”

The Second Amended Complaint

On May 7, 2004, plaintiff filed her second amended complaint, alleging (1) breach of express warranty, (2) breach of implied warranty, (3) breach of implied warranty of fitness, and (4) breach of duty of care/negligence.

The negligence count alleged: “On or about August 23, 2001, as a proximate result of defendants[‘] negligence and breach of duty to disclose, plaintiff sustained serious bodily injuries as the result of being exposed to toxic mold growing in and about the Property.” The pleading included a list of alleged personal injuries.

Defendants filed demurrers to the second amended complaint on the ground of the statute of limitations, because plaintiff’s complaint admitted she discovered the alleged defects in 1996.

Plaintiff filed oppositions to the demurrers and submitted her own declaration that she began to experience listed personal injuries in August 2001, after they pulled the carpets to test for mold.

The trial court sustained the demurrers without leave to amend as to the warranty claims, but with leave to amend the negligence cause of action. The court’s order stated: “With respect to the fourth cause of action for negligence, plaintiff’s claims also appear time barred. She alleged discovery of the defects in October 1996 and alleges the property was uninhabitable in November 2001. Plaintiff alleges injury in August 2001 but she does not allege when the physical ailments . . . became apparent or when she discovered they were related to the alleged construction defects. Plaintiff must plead with greater specificity when and how she was injured and learned her injuries were connected to toxic mold.” The court directed that if plaintiff filed a third amended complaint, it must be verified.

The Third Amended Complaint

On July 19, 2004, plaintiff filed a verified third amended complaint, alleging a single count of “Breach of Duty of Care/Negligence.” Plaintiff again alleged that in 1996 she discovered property defects that allowed water to enter the property and “which created a toxic environment.” She also alleged:

“On or about August 23, 2001, tests were carried our [sic; “out”] on the . . . property to determine whether or not toxic mold was present. Those tests were positive. Prior to these tests being conducted, plaintiff did not actually know that toxic mold was present in and around the . . . Property.”

“On or about November 2001, the Property became uninhabitable and plaintiff and her spouse [sic] had to move out as plaintiff was experiencing respiratory distress, persistent headaches, nasal congestion, sore throats, sinusitis, joint soreness, irritation in their nasal cavities, shortness of breath, fatigue, wheezing, hoarseness of voice, memory loss, diarrhea, cognitive degeneration, severe abdominal cramps, fever and other symptoms associated with toxic mold poisoning. In the [S]pring of 2002, plaintiff had medical tests completed by an immunologist which confirmed the presence of Stachybotrys, Penicillium, Cladosporium and Aspergillus (forms of toxic molds) in her blood. Additionally, it was determined that plaintiff is allergic to mold.”

Defendants filed demurrers on the ground of statute of limitations, arguing the pleading failed to comply with the court’s directive to plead with greater specificity when and how plaintiff was injured and learned her injuries were connected to toxic mold. Sonoran asked the trial court to take judicial notice that the related case, Triche v. Taylor, supra, C046145, had been dismissed by the trial court for Triche’s failure to bring it to trial within five years.^[4]

Instead of filing a memorandum of points and authorities in opposition to the demurrers to the third amended complaint, plaintiff filed a “RESPONSE TO DEFENDANTS DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT,” which asserted:

“NOTICE IS HEREBY GIVEN that pursuant to . . . section 472, plaintiff CHAREL WINSTON has timely filed a Fourth Amended Complaint as a matter of right without leave of court.

“WHEREFORE, plaintiff requests that this court drop the hearing on the defendants’ demurrer to plaintiff’s Third Amended Complaint as moot.”

The fourth amended complaint (verified), which appears to have been accepted for filing on August 19, 2004, alleged:

“31. On or about July 30, 2001, plaintiff began to experience continuing^[[5]] problems with respiratory distress, persistent headaches, nasal congestion, sore throats, sinusitis, joint soreness, irritation in their [sic] nasal cavities, shortness of breath, fatigue, wheezing, hoarseness of voice, memory loss, diarrhea, cognitive degeneration, severe abdominal cramps, fever and other symptoms associated with toxic mold poisoning. Plaintiff had not previously experienced such symptoms.

“a. In or around 1999-2000, at the request of plaintiff’s then attorneys, plaintiff had home [sic] tested to determine whether toxic mold was present in the home. At that time, the results were negative; there was no toxic mold present in the home . . . .

“b. Based on the results of the blood tests, plaintiff’s then attorneys concluded that plaintiff had no personal injuries in or around 2000, and as such, she could not state any causes of action for personal injuries.

“32. On or about August 23, 2001, tests were carried our [sic; “out”] on the . . . property to determine whether or not toxic mold was present. Those tests were positive. Prior to these tests being conducted, plaintiff did not actually know that toxic mold was present in and around the . . . Property. [Fn. omitted.]

“33. On or about September 19, 2001, plaintiff’s treating physician deemed that it was necessary for plaintiff to relocate her living space due to the toxic mold in the . . . home.

“34. On or about November 2001, the Property became uninhabitable and plaintiff and her spouse [sic] had to move out as plaintiff was experiencing increasing problems with respiratory distress, persistent headaches, nasal congestion, sore throats, sinusitis, joint soreness, irritation in their [sic] nasal cavities, shortness of breath, fatigue, wheezing, hoarseness of voice, memory loss, diarrhea, cognitive degeneration, severe abdominal cramps, fever and other symptoms associated with toxic mold poisoning.”

Defendants filed replies to plaintiff’s response to the demurrers, arguing plaintiff had no right to file a fourth amended complaint without leave of court. The Taylors cited Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2005) paragraph 6:602, page 6-123, for the proposition that section 472 allows a plaintiff the right to amend without leave of court only within a brief period of time after the original complaint is filed. Some defendants also argued that the fourth amended complaint failed to cure the defects, because plaintiff inconsistently alleged a toxic environment was created in 1996, disappeared by 1999 to 2000, and later reappeared.

Plaintiff, without leave of court, filed a “SUR-REPLY” to defendants’ replies, quoting a different portion of the Weil & Brown treatise, that “‘Because CCP § 472 applies to ‘any pleading,’ where a demurrer has been sustained with leave to amend and plaintiff files an amended complaint, that pleading presumabl[y] can also be amended once ‘of course’ (without leave of court) before defendant answers or demurs.’” (Weil & Brown, supra, 6:603 at p. 6-123.) Plaintiff submitted a declaration that she was recently able to review the files of an attorney she had consulted and found medical documents allowing her to fix the date of her initial injuries.

Sonoran filed an objection to the “Sur-Reply,” on the ground it lacked statutory authorization, and plaintiff should not be given another chance to amend after ignoring the court’s last directive.

The trial court issued a tentative ruling sustaining all defendants’ demurrers to the third amended complaint, without leave to amend. The ruling, as later quoted in the order and judgment, stated:

“‘Plaintiff has not opposed the demurrer. Rather she has filed a fourth amended complaint, asserting she has the right to do so without leave of court. She does not. “Any pleading may be amended once by the party of course, . . . before the answer or demurrer is filed . . . .” CCP Section 472. In this case, three demurrers have been filed. Plaintiff may not file a fourth amended complaint without leave of court. Plaintiff has also filed a “sur-reply” iterating her contention that leave of court is not required. There is no statute or rule of court that permits a sur-reply and the court has not considered it.

“‘The patent defects in the property were known in 1996. Plaintiff’s partner filed a lawsuit in 1998 alleging toxic mold was discovered in 1998. It was dismissed on May 13, 2002 for failure to prosecute. Plaintiff filed this action shortly before her partner’s lawsuit was dismissed.

“‘Now plaintiff alleges there was no toxic mold present in the home in 1999-2000. She also alleges her injuries were not established until 2001. Although plaintiff alleges the property became uninhabitable in November 2001 and she was experiencing respiratory distress in November 2001, she does not allege when she discovered her symptoms.

“‘Plaintiff has been given ample opportunity to plead facts to show the complaint is not barred by the statute of limitations. It is apparent she cannot do so.’”

Motion for Reconsideration

Plaintiff filed a motion for reconsideration on September 13, 2004. In a purported effort to show she was not making sham allegations, plaintiff attached letters from an attorney, C. Brooks Cutter, to plaintiff and Triche. The first letter, dated June 28, 1999, advised that testing at the property revealed mold but no toxic mold. The letter further advised that the lawyer would not represent plaintiff or Triche and would not monitor the statute of limitations.

The second letter from the attorney to Triche and plaintiff, dated January 3, 2002, reflects the attorney was contacted by plaintiff and/or Triche, who told him they paid for new tests in October 2001, which revealed toxic mold, and they wanted legal advice. The lawyer’s letter stated: “As discussed on various occasions, it is a conflict of interest for our firm to advise you or represent you in matters related to personal injury on the basis of toxic mold contamination. We are witnesses to your belief in early 1999 that you were injured as a result of mold in your home. As such, this correspondence will again confirm that our firm will not represent you in a personal injury action on the basis of mold contamination and due to our conflict of interest, we cannot advise you on the matter.”

On September 21, 2004, the court entered separate judgments of dismissal in favor of Sonoran and the Taylors.

On September 29, 2004, (despite a letter from plaintiff asking the court not to enter judgment before ruling on the motion for reconsideration), the trial court entered a separate judgment of dismissal in favor of Souza.

On October 7, 2004, the trial court issued a ruling denying the motion for reconsideration without a hearing, because (1) judgment had already been entered, (2) there were no new facts or law to support reconsideration, and (3) the attachments to the motion showed the claim was barred by the statute of limitations.

Section 473 Motion

On November 3, 2004, plaintiff filed a motion to set aside the dismissal and vacate the judgment under section 473, subdivision (b).^[6] Although her main focus was to accuse the trial court of mistakes, plaintiff also said in her notice of motion and affidavit, that if she was wrong to file the fourth amended complaint, her error constituted an excusable mistake under section 473. She submitted a declaration, stating in part: “The Court must also keep in mind that I, as a disabled in pro per litigant, can only refer to the statutes and the cases in Westlaw, and treatises such as Weil & Brown, Cal. Prac. Guide: Civil Procedure Before Trial (The Rutter Group, 2004) for guidance as to how to proceed in an action. In this case, I reasonably relied on such guidance, in determining to answer the defendants’ demurrer to my Third Amended Complaint by filing a Fourth Amended Complaint as a matter of right. [Citations.] The Court cannot fault me for reliance on such authorities. This [] clearly constitutes proper reason to set aside the judgment under Section 473(b).” Plaintiff did not submit a copy of her proposed pleading, as required by section 473.

On November 24, 2004, the trial court denied the motion without a hearing, stating that, instead of showing excusable mistake on her part, plaintiff continued to contend the trial court erred. (As indicated, plaintiff did argue any error on her part was excusable.) The court also stated plaintiff had failed to provide a proposed amended pleading, as required by statute.

Meanwhile, on November 19, 2004, plaintiff filed an appeal from the judgment of dismissal (which we shall liberally construe as an appeal from the three separate judgments in favor of the three groups of defendants).

DISCUSSION

I. Standard of Review

On review, we treat a demurrer as admitting all material facts properly pleaded, and we give the complaint a reasonable interpretation in determining whether it states facts sufficient to constitute a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. [Citation.]” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (Kong).) This does not mean a plaintiff can take forever to get it right. (See cases cited in 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 947, p. 405, e.g., Consolidated Concessions Co. v. McConnell (1919) 40 Cal.App. 443, 446 [fifth amended complaint; “there is a limit to which the patience of the trial court may be extended in the matter of allowing repeated attempts to amend a faulty pleading”].)

“On appeal, we review the trial court’s sustaining of a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law and applying the abuse of discretion standard in reviewing the trial court’s denial of leave to amend. [Citation.] Plaintiff bears the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. [Citations.]” (Kong, supra, 108 Cal.App.4th at pp. 1037-1038; see also, Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

“A showing that the complaint can be amended to state a cause of action ‘need not be made in the trial court so long as it is made to the reviewing court.’ If there is a reasonable possibility that a plaintiff can amend his complaint to cure the defects, leave to amend must be granted. [Citation.]” (Kong, supra, 108 Cal.App.4th at pp. 1041-1042, citing § 472c, subd. (a) [“When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such a pleading was made”].)

California courts have a policy of liberal allowance of amendments at any stage of the pleadings, so as to dispose of cases on their merits where the authorization does not prejudice substantial rights of others. (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.)

II. Leave to Amend Should Be Granted

Plaintiff does not seriously contend the trial court erred in sustaining the demurrers to her third amended complaint. Rather, she contends she should be allowed to amend again. We agree.

We begin with some preliminary observations:

First, some defendants have misconstrued the issue as simply a question of delayed discovery of a cause of action. They complain plaintiff alleged she discovered property defects between 1996 and 1998, yet alleged she did not discover her own injuries until 2001, and did not file suit until 2002. However, plaintiff did not allege she discovered her injuries in 2001; she alleged the injuries began in 2001 (which we accept as true for purposes of reviewing the demurrers). The issue here is not simply delayed discovery of a cause of action, but accrual of the cause of action. The statute of limitations does not begin to run until a cause of action accrues, and a cause of action accrues when it is complete with all its elements, which usually means a wrongful act, causation, and injury. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 387, 397.) If there were defects and plaintiff knew or should have known of the defects in the house in 1996, but she did not suffer any injury until 2001 (as she claims), then her cause of action did not accrue until 2001, and her complaint (originally filed in May 2002) is not barred by the one-year limitations period (though other defenses may apply). Whether there is an issue of delayed discovery of pre-existing injuries is not a matter that is before us in this appeal.

Moreover, plaintiff’s diligence is reflected in the fourth amended complaint, which alleged (and was supported by the attorney’s letter in the record on appeal) that the home was tested for toxic mold in 1999, but the results were negative. Defendants and the trial court appeared to view plaintiff’s lawsuit (and Triche’s lawsuit) as alleging toxic mold was discovered years before the complaints were filed. However, plaintiff’s allegation that defects caused a toxic environment did not necessarily allege the existence of toxic mold. Additionally, we have reviewed Triche’s original and first amended complaints (submitted for judicial notice by one of the defendants) and our opinion affirming dismissal of Triche’s suit for failure to prosecute, and we see nothing supporting the view that Triche alleged toxic mold was discovered in 1996 or 1998. Triche’s lawsuit began as a construction defects case, with no specific allegation of personal injuries from toxic mold. In November 1999, Triche amended to allege “mold and fungi” as a defect for which she sought property damages, and to allege emotional distress damages. As reflected in our opinion in the Triche case, it was not until May 2002, that Triche sought to amend her complaint to add a claim for personal injuries. (Triche v. Taylor, supra, C046145, pp. 5, 8.)

We do not express any opinion on the merits of plaintiff’s case. Our review is limited by the scope of appellate review in determining leave to amend a complaint following a demurrer.

Having disposed of preliminary matters, we now turn to plaintiff’s contentions.

Plaintiff argues she properly responded to the demurrers by filing a fourth amended complaint without leave of court. She cites section 472: “Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment.” She also cites a respected treatise on appeal (as she did in the trial court)^[7] which supports her position that she was entitled to file the fourth amended complaint without leave of court before the hearing on the demurrers to the third amended complaint. The treatise, Weil & Brown, supra, by highly-respected authors,^[8] states at paragraph 6:603, page 6-122: “Because CCP § 472 applies to ‘any pleading,’ where a demurrer has been sustained with leave to amend and plaintiff files an amended complaint, that pleading presumably can also be amended once ‘of course’

(without leave of court) before defendant answers or demurs.” As noted, section 472’s reference to amendment before a demurrer also allows amendment without leave of court after the demurrer is filed but before the hearing on the demurrer.

We do not need to determine whether the treatise is correct. If the treatise is correct on the law, then the judgment should be reversed. However, even assuming for the sake of argument that the treatise is incorrect, plaintiff should be granted leave to amend under the circumstances of this case.

Although the trial court said plaintiff failed to oppose the demurrers to her third amended complaint, she did not stand silent in the face of the demurrers. She filed a “Response” asserting her right to amend as a matter of course under section 472, and she filed a fourth amended complaint. She also filed a “sur-reply” citing Weil & Brown (though the trial court declined to consider the sur-reply). She also appeared at the hearing on the demurrers to the third amended complaint. She did not quote Weil & Brown at the hearing, but she did argue for her interpretation of section 472. She also said, “Whether or not I read the law the same way you do -- and I’m sorry, I can only go to the law books. I can only use my ^ [sic] RUTTER guide.” She also asked the trial court to use its discretion to give her leave to file the fourth amended complaint. She also raised Weil & Brown in her motion for reconsideration and section 473

motion. Thus, plaintiff is not trying to raise new issues on appeal.

Even assuming for the sake of argument that the trial court did not abuse its discretion by denying plaintiff’s repeated attempts to file a fourth amended complaint, the record suffices to support plaintiff’s contention on appeal that she should be granted leave to amend.

Thus, as indicated: “A showing that the complaint can be amended to state a cause of action ‘need not be made in the trial court so long as it is made to the reviewing court.’ If there is a reasonable possibility that a plaintiff can amend his complaint to cure the defects, leave to amend must be granted. [Citation.]” (Kong, supra, 108 Cal.App.4th at pp. 1041-1042, citing § 472c, subd. (a) [“When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such a pleading was made”].)

Here, the record shows plaintiff stands ready to file a verified fourth amended complaint, alleging under penalty of perjury that she first began to experience injury on or about July 30, 2001. This would make her complaint, originally filed in May 2002, timely even under the most stringent (one-year) limitations period, and regardless of when she learned her injuries (which she listed in the fourth amended complaint) were connected to toxic mold (which would necessarily be on a date

within the limitations period). The proposed amendment would cure the pleading defects noted earlier by the trial court.

As indicated, a plaintiff should not expect unlimited opportunities to fix a faulty pleading. (Consolidated Concessions Co. v. McConnell, supra, 40 Cal.App. at p. 446.) Here, although plaintiff has already had multiple opportunities, the flaws in her pleadings have varied, e.g., some of the defects involved warranty claims barred by lack of privity. Thus, one more amendment does not strike us as unreasonable, given the total circumstances of this case.

Additionally, we note the proposed amendment is also consistent with the attorney letters submitted to the trial court with plaintiff’s motion for reconsideration, showing tests in 1999 revealed mold but no toxic mold. The letters reflect diligence on plaintiff’s part in trying to ascertain if she had a cause of action. Although the letters also indicated plaintiff was claiming some unspecified injury in 1999, this does not necessarily, as a matter of law, foreclose as time-barred her claim that she later began to suffer new injuries from a new cause (toxic mold).

Amendment at this stage will not prejudice defendants’ substantial rights. The trial court did not deny leave to amend on the ground of prejudice to defendants’ substantial rights. Defendants on appeal do not show prejudice. Sonoran argues the record shows plaintiff’s claim has no merit, because the lawyer’s letters and a medical document submitted by plaintiff

(showing a 2001 doctor’s visit referencing onset of Graves disease and chronic fatigue immune deficiency syndrome two years earlier) demonstrate plaintiff claimed injuries outside the limitations period. However, pre-existing medical conditions do not, as a matter of law, render meritless a claim that plaintiff suffered new injuries from a new cause.

As indicated, we express no view on the merits of plaintiff’s case. We merely conclude her proposed fourth amended complaint would cure the defects identified in the demurrers to the third amended complaint.

Accordingly, we conclude plaintiff should be granted leave to amend to file her verified fourth amended complaint (which we treat as implicitly stricken by the trial court upon sustaining of the demurrers to the third amended complaint).

We shall therefore reverse the judgments of dismissal. We need not address plaintiff’s contention that the sustaining of the demurrers to the third amended complaint reinstated her original complaint. We also need not address plaintiff’s contentions that the trial court improperly denied her motion for reconsideration and her motion to vacate the judgment.

DISPOSITION

The September 21, 2004, and September 29, 2004, judgments in favor of defendants are reversed. The trial court is directed to vacate its order sustaining defendants’ demurrers to plaintiff’s third amended complaint without leave to amend and

to enter a new order sustaining the demurrers with leave to amend. Plaintiff shall recover her costs on appeal. (Cal. Rules of Court, rule 27(a)(1).)

SIMS , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1] We grant Sonoran’s January 13, 2006, request for judicial notice of a complaint and first amended complaint filed by Alma M. Triche, who bought the house that plaintiff shared. We also take judicial notice of our nonpublished opinion in Triche v. Taylor (Jan. 31, 2006, C046145 [nonpub. opn.]), (filed while the instant appeal was pending) affirming dismissal of the Triche case for failure to prosecute within five years.

^[2] On appeal, plaintiff chose to proceed with an appellant’s appendix rather than a clerk’s transcript, but she failed to include her original complaint, first amended complaint, and second amended complaint, and the demurrers to those three complaints. Her omission was nevertheless cured by the filing of respondents’ appendices by Souza and Sonoran. Thus, the appellate record is muddled, with different parties presenting different pieces of the puzzle in three sets of appellant’s and respondents’ appendices.

^[3] For purposes of this appeal, it does not matter which statute of limitations governs. Even assuming application of the shortest limitations period (one year), leave to amend the complaint should be granted. Plaintiff’s appellate brief claims -- incorrectly and without citation to the record -- that “Respondents did not plead statute of limitations defense in their answer . . . .”

^[4] Some defendants (the Taylors and Souzas) went off-track by arguing plaintiff had failed to allege any justification for her delayed discovery of all facts giving rise to her cause of action, particularly since her co-occupant, Triche, knew enough to file suit in 1998. This argument missed the mark, because plaintiff had no cause of action until she herself suffered injury (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 387, 397), and therefore her earlier knowledge of defects would not trigger the limitations period (though it may be of consequence if failure to mitigate damages were to become a trial issue).

^[5] We assume that plaintiff is alleging the problems began on July 30, 2001, and continued after July 30, 2001. We note the copy of the fourth amended complaint provided in appellant’s appendix omitted some of the above-quoted symptoms. We augmented the record to include a copy of the trial court’s copy of the pleading, which does not omit the words.

^[6] Section 473, subdivision (b), states in part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted . . . .”

^[7] Plaintiff quoted the treatise in her “sur-reply” (which the trial court declined to consider), in her motion for reconsideration, and in her motion to vacate the judgment.

^[8] The original authors are Judge Robert I. Weil and Judge Ira A. Brown, Jr. The current edition author is Justice William F. Rylaarsdam of the California Court of Appeal, Fourth District.