noting that under delayed discovery rule, 11 limitations period is postponed until the plaintiff discovers or should have discovered all facts 12 essential to his cause of action
How later courts described this case
- noting that under delayed discovery rule, 11 limitations period is postponed until the plaintiff discovers or should have discovered all facts 12 essential to his cause of action
- noting that if owner does not file claim within statutory period, “claim will be barred for that and all subsequent owners”
- Regional Board ordered plaintiff to investigate the groundwater and soil of the property
- “the harm implicit in a tortious injury to property is harm to the property itself, and thus to any owner of the property once the property has been injured and not necessarily to a particular owner”
Written by the judges who cited it.
The opinion
THE COURT. *
By petition for rehearing CAMSI IV asserts for the first time that the trial court abused its discretion by failing to grant it leave to amend to plead theories of continuing nuisance and continuing trespass against Hunter. To explain the apparent inconsistency between this position and counsel’s statement at oral argument that CAMSI IV was not pursuing a nuisance theory against Hunter, CAMSI IV argues that until the Third Appellate District filed its opinion in Mangini v. Aerojet-General Corp., ante, page 1125 [ 281 Cal.Rptr. 827 ] (Mangini), after oral argument in this matter, “no published decision in California . . . had held expressly that a present property owner could sue a former tenant for a nuisance created on the owner’s property” and therefore that Mangini “represents a change in the law.”
In opposition to CAMSI IV’s petition Hunter argues that CAMSI IV cannot amend its complaint to conform to Mangini and that in any event Mangini's statement of pertinent law is incorrect. We need not address these contentions; in any event we deny the petition for two reasons.
*1542 First, a reviewing court need not consider points raised for the first time on petition for rehearing. (9 Witkin, Cal. Procedure, Appeal, supra, § 684, pp. 656-657; Cal. Civil Appellate Practice (Cont.Ed.Bar 1985) § 18.8, pp. 497-498.) CAMSI IV has given us no reason to disregard this established principle in this case. We are wholly unpersuaded by CAMSI IV’s contention that before Mangini it could not have pursued a nuisance theory. Mangini cites statutes that have been in our codes since they were adopted in 1872, and cases, some of which predated the codes. Counsel for CAMSI IV was necessarily aware of Mangini , and of the Third Appellate District’s inclination to find viable claims against a tenant for nuisance and for trespass, at least a week before our oral argument, when counsel for CAMSI IV called to our attention the first opinion in Mangini , filed for publication nearly three months earlier (and subsequently vacated by grant of rehearing).
Second, within the constraints of our appellate function we would find no abuse of discretion. Even where there is no request for leave to amend (or where, as here, the only arguable request was wholly insufficient to suggest whether or how the plaintiff could amend) “the question as to whether or not [the trial] court abused its discretion” in denying leave to amend remains open on appeal. (Code Civ. Proc., § 472c.) But it is the trial court’s discretion that is at issue; the reviewing court may only determine, as a matter of law, whether the trial court’s discretion was abused. In our view an abuse of discretion could be found, absent an effective request for leave to amend in specified ways, only if a potentially effective amendment were both apparent and consistent with the plaintiff’s theory of the case. Were we to accept CAMSI IV’s premise that it could not have amended its complaint until the second Mangini opinion was filed, we could not consider the trial court’s earlier denial of leave to amend an abuse of discretion. We reject CAMSI IV’s premise, but we nevertheless find no abuse of discretion: Absent any indication whatsoever that CAMSI IV might wish to change theories, the trial court was by no means obliged to invite CAMSI IV to do so. There is a rational basis for hypothesis that (until it received this court’s ruling) CAMSI IV would have been disinclined to shift to nuisance and trespass theories: For reasons well explained in Mangini , CAMSI IV could have avoided the bar of the statute of limitations only by pleading continuing nuisance and continuing trespass, but had it done so it would have limited its available relief in damages to harms shown to have accrued before its action was filed (which would not have included, for example, diminution in market value of the parcel). (Cf. Spaulding v. Cameron (1952) 38 Cal.2d 265, 267-270 [ 239 P.2d 625 ]; Baker v. Burbank-Glendale-Pasadena Airport *1543 Authority (1985) 39 Cal.3d 952 , 868-869 [ 218 Cal.Rptr. 293 , 705 P.2d 866 ].) The trial court could rationally have regarded CAMSI IV’s choice among theories as essentially tactical and not subject to interference by the court.
A petition for a rehearing was denied July 2, 1991, and appellant’s petition for review by the Supreme Court was denied September 18, 1991.
Before Agliano, R J., Bamattre-Manoukian, J., and Capaccioli, J.