Filed 1/11/18 Chaudhary v. Gupta CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


KAILASH CHANDRA CHAUDHARY,

Plaintiff and Appellant,

v.

GIRDHARI S. GUPTA,

Defendant and Respondent.
H043911
(Santa Clara County
Super. Ct. No. CV274472)


Plaintiff Kailash Chandra Chaudhary appeals after the trial court granted defendant Girdhari S. Gupta’s special motion to strike (Code Civ. Proc., § 425.16) the three numbered causes of action in Chaudhary’s complaint, sustained without leave to amend Gupta’s demurrer to the remaining “unnumbered cause of action,” denied Chaudhary’s motions for reconsideration, and entered a judgment of dismissal. The only ruling properly before us in this appeal is the court’s ruling on the demurrer to the unnumbered cause of action. As to that ruling, we conclude that the trial court did not err in finding that this cause of action was barred by the statute of limitations, and we affirm the judgment of dismissal.


I. Background
In December 2014, Chaudhary filed a 26-page pro per complaint in which he alleged that Gupta had “harmed me in three ways-all related to unfair termination of my parental rights.” Chaudhary alleged that Gupta was responsible for (1) the loss of Chaudhary’s action against a title company (in which he sought to hold the title company liable for the loss of his parental rights) because Gupta had given “false testimony,” (2) the loss of Chaudhary’s action against Gupta’s wife, also because Gupta had given “false testimony,” and (3) the loss of Chaudhary’s parental rights because Gupta had submitted a false declaration to the juvenile court that Chaudhary no longer had any money to pay for child support or an attorney to represent him. The three numbered causes of action in the complaint corresponded to these three alleged harms.
An unnumbered section of the complaint was entitled “NEW DISCOVERY OF STOLEN FUNDS.” This cause of action alleged that Gupta had “collected” $15,000 to $20,000 from Chaudhary’s bank accounts and over $35,000 from other sources. It also alleged that Gupta had “transferred in excess of about $40,000 to his family members.” The background for these allegations was somewhat convoluted. In 1987, Chaudhary gave Gupta a general power of attorney because Chaudhary was in prison. Chaudhary’s house was sold in 1987. Chaudhary alleged that Gupta “siphoned” Chaudhary’s money from this sale to Gupta’s “family members.” In 2005, Chaudhary learned that Gupta had “embezzled four years of my pension.” In 2006, Chaudhary filed an action against Gupta’s wife “for various funds [Gupta] had embezzled.” Chaudhary alleged that, at that point, he had “no suspicion of anything embezzled from the [1987] sale of my house.”
In January 2008, Chaudhary learned for the first time that his house had been “double sold simultaneously” for two different prices. Gupta subsequently asserted that Chaudhary had known of all of the circumstances of the house sale at the time of the sale. In 2012, Chaudhary found a letter that Gupta had sent to Chaudhary in 1988. In this letter, Gupta informed Chaudhary, after the fact, about the sale of the house. Gupta’s recitation in the letter of the circumstances of the sale and Chaudhary’s awareness of those circumstances conflicted with Gupta’s subsequent assertions.
Gupta filed a special motion to strike the three numbered causes of action and a demurrer based on the statute of limitations to the unnumbered cause of action. Gupta submitted judicially noticeable documents that he asserted showed Chaudhary had alleged in a prior action that he had learned of the facts underlying the unnumbered cause of action in 2007. A March 2011 pleading filed by Chaudhary had alleged that “Gupta . . . committed fraud in connection with the sale of the Plaintiff’s home.” It had further alleged that Chaudhary had “learned of” this fraud “on or about December 8, 2007.” The 2011 pleading also had alleged that $40,000 had been transferred to Gupta’s family members. Because the limitations period was just three years, and Chaudhary had not filed this action until December 2014, more than three and a half years later, Gupta argued that Chaudhary’s unnumbered cause of action was not timely.
On May 7, 2015, the court filed a written order granting the special motion to strike and sustaining the demurrer without leave to amend. It found that the unnumbered cause of action was barred by the statute of limitations because Chaudhary “was aware of the facts no later than 2007.”
On May 12, 2015, Chaudhary filed a motion for reconsideration of the court’s rulings. His 23-page reconsideration motion did not directly address the statute of limitations issue. Instead, he claimed that his cause of action accrued only when he discovered “new and very significant evidence” at some unspecified time. On June 4, 2015, Chaudhary renewed his reconsideration motion, which had not yet been ruled upon. Gupta opposed the reconsideration motion on the ground that Chaudhary had failed to present “new or different facts, circumstances or law to support a motion for reconsideration . . . .” On July 7, 2015, the court denied the reconsideration motion on that ground.
After the court denied his reconsideration motion, Chaudhary filed a request for the trial court judge to “recuse herself” and another reconsideration motion. The court struck what it viewed as a challenge for cause. On July 14, 2015, Gupta filed a motion seeking recovery of nearly $8,000 in attorney’s fees and costs under section 425.16. In September 2015, the court denied Chaudhary’s second reconsideration request on the same ground that it had denied the first one, and it awarded Gupta $7,155 in attorney’s fees and costs. In October 2015, Chaudhary filed a motion to disqualify the trial judge. In November 2015, the court struck this challenge. In December 2015, the court issued an order requiring Chaudhary to furnish security of $10,000. Chaudhary filed a motion for reconsideration of the security order.
On February 18, 2016, Chaudhary filed a notice of appeal in which he stated that he was appealing from the trial court’s “Grant of Defendant’s Demurrer, Plaintiff’s evidence not allowed, Disqualifying the Judge denied etc.” Chaudhary subsequently obtained a dismissal of his action to perfect his appeal.

II. Discussion
A. Scope of This Appeal
The scope of this appeal is very limited. The trial court’s May 7, 2015 order granting the motion to strike was an appealable order. (§ 904.1, subd. (a)(13).) Notice of entry of this order was served on Chaudhary on May 15. Service of the notice of entry began the normal 60-day period for a timely notice of appeal. (Cal. Rules of Court, rule 8.104(a)(1)(B).) However, Chaudhary filed a motion for reconsideration on May 12. When there is a valid reconsideration motion, the period to appeal is extended to the earliest of 30 days after the order denying the reconsideration motion, 90 days after the filing of the reconsideration motion, or 180 days after the notice of entry of the appealable order. (Cal. Rules of Court, rule 8.108(e).)
Here, Chaudhary’s reconsideration motion was denied on July 7, 2015. The earliest of the three dates is August 6 (30 days after the denial of the reconsideration motion). Hence, Chaudhary’s February 2016 notice of appeal was not a timely challenge to the May 2015 order granting the motion to strike. Nor may Chaudhary challenge in this appeal the court’s striking of his repeated motions to disqualify or recuse the trial judge. Such orders are not appealable. (§ 170.3, subd. (d).)
Because Chaudhary obtained a judgment of dismissal, his appeal may properly challenge the court’s order sustaining the demurrer without leave to amend. (See Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 974-975 [voluntary dismissal by the plaintiff after sustaining of demurrer without leave to amend perfects jurisdiction for appeal].) Consequently, this appeal is limited to the validity of the court’s order sustaining the demurrer without leave to amend as to the unnumbered cause of action.

B. Demurrer
“[A] demurrer assumes the truth of the complaint’s properly pleaded allegations, but not of mere contentions or assertions contradicted by judicially noticeable facts.” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20.)
Gupta demurred to the complaint on the ground that the unnumbered cause of action was barred by the statute of limitations. He relied on judicially noticeable facts contained in pleadings that had previously been filed by Chaudhary. An action for fraud or conversion is subject to a three-year statute of limitations. (§ 338, subd. (d); Lowe v. Ozmun (1902) 137 Cal. 257, 258-259 [§ 338 applies to a conversion action].) “The cause of action [for fraud] is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (§ 338, subd. (d).)
Chaudhary’s unnumbered cause of action arose out of the sale of his house in 1987. His claim was that Gupta “embezzled” money from the sale of the house. Gupta apparently sent Chaudhary a letter in 1988 regarding the 1987 house sale. In this letter, Gupta explained that he had arranged to sell Chaudhary’s house to a coworker for $99,000. Chaudhary argues that he did not learn until July 2012, when he “discovered” the 1988 letter from Gupta, that Gupta had “embezzled more than $106k of Chaudhary funds.” He therefore asserts that his claim against Gupta did not accrue until he found this letter in 2012.
His delayed discovery argument is belied by his admissions. Chaudhary admits in his opening brief that he “learned about the double sale” of the house in 2008. He also admits that he “got the first gimps [sic: glimpses] of” the embezzlement in 2008 when his attorney obtained information about the 1987 property sale. Chaudhary further concedes that he learned in 2009, when he “received escrow papers,” that four individuals, who he “suspected” were members of Gupta’s family, had received $9,000 each from the sale of the house.
Nevertheless, Chaudhary claims that his cause of action was not barred by the statute of limitations because he did not learn of the underlying facts until his 2012 “discovery of [Gupta’s 1988] letter,” which, in his view, “verifies the fraud in the house sale.” He maintains that Gupta’s 1988 letter was the first proof he had that Gupta had lied when he previously stated that he had informed Chaudhary of the circumstances of the house sale before the escrow closed.
“ ‘[D]iscovery is different from knowledge, [so] that where a party defrauded has received information of facts which should put him upon inquiry, and the inquiry if made would disclose the fraud, he will be charged with a discovery as of the time the inquiry would have given him knowledge.’ [Citation.] ‘The circumstances must be such that the inquiry becomes a duty, and the failure to make it a negligent omission.’ [Citation.] ‘Where no duty is imposed by law upon a person to make inquiry, and where under the circumstances “a prudent man” would not be put upon inquiry, the mere fact that means of knowledge are open to a plaintiff, and he has not availed himself of them, does not debar him from relief when thereafter he shall make actual discovery.’ [Citation.]” (Vai v. Bank of America (1961) 56 Cal.2d 329, 343.) “ ‘Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.’ ” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 317.)
Gupta’s demurrer was based on Chaudhary’s March 2011 pleading in a prior action. That pleading established that Chaudhary was aware in March 2011 of facts that indicated Gupta had defrauded him in connection with the 1987 sale of his house. Chaudhary’s awareness of those facts put him “on inquiry,” which meant that he was assumed to be aware of any facts he would have discovered at that time if he had investigated. Although he asserts that he did not read the 1988 letter until 2012, he has never alleged that it would not have been available to him had he investigated earlier. In any case, the March 2011 pleading reflects that Chaudhary was already aware at that time of the facts that underlie his claim that Gupta defrauded him of some of the proceeds of the 1987 house sale. Since Chaudhary did not file his action until December 2014, more than three years after the March 2011 pleading, the limitations period had expired. Therefore, the trial court did not err in sustaining the demurrer without leave to amend.

III. Disposition
The judgment of dismissal is affirmed.
 




_______________________________
Mihara, J.



WE CONCUR:






_____________________________
Elia, Acting P. J.






_____________________________
Bamattre-Manoukian, J.













Chaudhary v. Gupta
H043911