McKelvey v. Boeing North American, Inc.

• Citation: 86 Cal.Rptr.2d 645,73 Cal.App.4th 601
• Decision Date: 29 June 1999
• Docket Number: B130146,Nos. B125285,B130137,B125298,s. B125285
• Parties: , 74 Cal.App.4th 151, 99 Cal. Daily Op. Serv. 5670, 1999 Daily Journal D.A.R. 199 Barbara A. McKELVEY et al., Plaintiffs and Appellants, v. BOEING NORTH AMERICAN, INC., et al., Defendants and Respondents. James K. Aurness et al., Plaintiffs and Appellants, v. Boeing North American, Inc., et al., Defendants and Respondents. Boeing North American, Inc., et al., Petitioners, v. The Superior Court of Los Angeles County, Respondent; Cecil Adams et al., Real Parties in Interest. Boeing North American, Inc., et al., Petitioners, v. The Superior Court of Los Angeles County, Respondent; Aaron Davis et al., Real Parties in Interest.
• Court: California Court of Appeals

Page 645

86 Cal.Rptr.2d 645

73 Cal.App.4th 601, 74 Cal.App.4th 151,

99 Cal. Daily Op. Serv. 5670,

1999 Daily Journal D.A.R. 199

Barbara A. McKELVEY et al., Plaintiffs and Appellants, v. BOEING NORTH AMERICAN, INC., et al., Defendants and Respondents.

James K. Aurness et al., Plaintiffs and Appellants, v. Boeing North American, Inc., et al., Defendants and Respondents.

Boeing North American, Inc., et al., Petitioners, v. The Superior Court of Los Angeles County, Respondent;

Cecil Adams et al., Real Parties in Interest.

Boeing North American, Inc., et al., Petitioners, v. The Superior Court of Los Angeles County, Respondent;

Aaron Davis et al., Real Parties in Interest.

Nos. B125285, B125298, B130137, B130146.

Court of Appeal, Second District, Division 1, California.

June 29, 1999.

Certified for Partial Publication. ^*

As Modified July 14, 1999.

Order Denying Rehearing

July 21, 1999.

Engstrom, Lipscomb & Lack, Walter J. Lack, Gary A. Praglin, Los Angeles, and Jennifer R. Schrack; Girardi & Keese, Thomas V. Girardi, James B. Kropff, Los Angeles; Masry & Vititoe and Edward L. Masry, Toluca Lake, for Plaintiffs and Appellants and for Real Parties in Interest.

Munger, Tolles & Olson, Brad D. Brian, Stephen M. Kristovich, Los Angeles, and Bernardo Silva, San Francisco, for Petitioners and for Defendants and Respondents Boeing North American, Inc., North American Rockwell Corporation, Rockwell Manufacturing Company, Rockwell Standard Corporation, Rocketdyne, Inc., North American Aviation, Inc., Rockwell International Corporation and Atomics International, Inc.

Cooley, Godward, Gordon C. Atkinson and Kathleen A. Howard, San Francisco, for Petitioners and for Defendants and Respondents Raytheon Company, Hughes Aircraft Company and General Motors Corporation.

No appearance for Respondent Superior Court.

MIRIAM A. VOGEL, J.

The issue in these consolidated cases is whether the plaintiffs have pled facts sufficient to establish delayed discovery of their claims or whether, instead, their complaints were filed too late. We conclude the actions are time barred.

A. The 1997 Actions

1. McKelvey

In October 1997, Barbara A. McKelvey and John Walakavage (collectively "McKelvey") filed a class action against Boeing North American, Inc., Rockwell International Corporation, Rocketdyne, Inc., Atomics International, Inc., Hughes Aircraft Company and others. ¹ In her first amended complaint filed in April 1998, McKelvey alleges that, beginning in the 1940's and continuing into the 1980's, Boeing "systematically, methodically and generally" caused the contamination of the land at and around four of its Southern California facilities (the "Rocketdyne facilities"), as a result of which McKelvey was damaged. ² She alleges that tests conducted by Boeing during 1991 confirmed the McKelvey alleges that Boeing's "operations ... were veiled in secrecy. Thousands of residents and workers in the surrounding communities, for decades, have used and continue to use drinking water, to garden and work the contaminated soil and to eat citrus and vegetables growing in the contaminated soil on their properties. Those who worked at or near the Rocketdyne Facilities inhaled, ingested and were otherwise exposed to the contaminated soil, water and vapors. Further, these residents and workers have used and enjoyed and continue to use and enjoy their neighborhoods, community, homes and properties while unknowingly being exposed to contaminants contained in the soil and groundwater. Not only were they unknowingly ingesting TCE, they were consuming many other hazardous wastes. These hazardous substances were released into the soil and groundwater, causing further exposure. Even though public notices and newspaper articles were published about [Boeing's] intentional, reckless and/or negligent conduct, Plaintiffs were and are not aware of the actual and potential harm caused by this conduct." (Emphasis added.) McKelvey does not say when or how she ultimately learned whatever it was she needed to know to file her lawsuit. ³

existence of groundwater contamination and that, during the early 1990's, both the federal government and the State of California issued clean up orders. She alleges that, in 1994, two physicists were killed and a technician was injured in an explosion at one of the Rocketdyne facilities. She alleges that there followed a series of lawsuits, including wrongful death claims by the physicists' families, a shareholders' action, and criminal charges alleging the illegal storage and disposal of hazardous waste. Guilty pleas were ultimately entered and a fine of $6.5 million was paid. She does not allege that she was unaware of any of these events.

2. Aurness

In October 1997, James K. Aurness (and several dozen other named individuals, including the two named plaintiffs in the McKelvey class action) filed a "direct action" against Boeing. In his first amended complaint filed in April 1998, Aurness alleges the same facts alleged by McKelvey. The difference is status, with Aurness alleging that "Plaintiffs reside, live and work in the counties of Los Angeles and Ventura, and, at the time of sustaining the injuries complained of [in the complaint], have been the owners, lessees and/or occupants of certain real property consisting of land, buildings and various types of residences located at or near the Rocketdyne Facilities...." ⁴

3. The Demurrers

Boeing demurred to all causes of action alleged in the McKelvey and Aurness first amended complaints, contending the substantive claims were all barred by limitations. (Code Civ. Proc., §§ 338, subd. (b), 340, subd. (3).) ⁵ Boeing contended that, on its face, the McKelvey and Aurness Plaintiffs' motions for reconsideration were denied in both cases, as were motions for leave to file second amended complaints. ⁷ McKelvey and Aurness then voluntarily dismissed their remaining claims (trespass, nuisance, and declaratory and injunctive relief) and final orders of dismissal were entered. McKelvey and Aurness appeal. ⁸

pleadings were insufficient to show delayed discovery. In addition, Boeing asked the court to judicially notice 117 documents--copies of newspaper articles, transcripts of radio and television broadcasts, and government "fact sheets" describing and discussing the contamination at the Rocketdyne facilities. Boeing's position was and is that McKelvey and Aurness knew or, as a matter of law, could (with the exercise of reasonable diligence) have earlier discovered the facts essential to their causes of action. Over the opposition of McKelvey and Aurness, the trial court sustained most of the demurrers without leave to amend. ⁶

B. The 1998 Actions

1. Adams

In September 1998 (that is, after the demurrers had been sustained in the 1997 actions), Cecil Adams and several hundred other named individuals sued Boeing, alleging the same facts alleged in Aurness. There are two additional allegations. First, Adams adds this to the description of the named plaintiffs: "Certain plaintiffs, at the time of sustaining the injuries complained of herein, were employed by [Boeing], or were employed to work on or at the Rocketdyne Facilities to perform various "Plaintiffs first became aware that they may have sustained injuries as a result of their exposure to contamination arising from the conduct of [Boeing] when the final report of the University of California at Los Angeles' Rocketdyne Worker Health Study was published. Prior to that time, Plaintiffs did not suspect that the injuries they may have suffered were caused by any particular act of wrongdoing and/or were prevented from doing so by [Boeing's] conduct [as described elsewhere in the] Complaint. Plaintiffs could not, by the exercise of reasonable diligence, have discovered the wrongful cause of their injuries at an earlier time because of [Boeing's] misrepresentations. [p] No plaintiff was ever informed by [Boeing] that the water, air or soil to which they were exposed was contaminated with any toxic substance that might cause a health risk. Any public comment about contamination of the environment caused by the conduct of [Boeing] only assured the public that no health hazard was posed. At no time was there ever a publicly disclosed reason to suspect that the activities of [Boeing] at the [facilities] were wrongful or would cause injuries to Plaintiffs."

activities within a particular industry directly related to the operations of the Rocketdyne Facilities and subject to the control of [Boeing]." Second, Adams adds the following allegations about delayed discovery:

2. Davis

In October 1998, Aaron Davis and three other named individuals filed a complaint against Boeing. This action is indistinguishable from Adams's action. ⁹

3. The Demurrers

Boeing demurred to the Adams and Daviscomplaints on the same grounds asserted in McKelvey and Aurness, and supported the demurrers with the same requests for judicial notice. In February 1999, Judge Wasserman denied the requests for judicial notice and overruled most of the demurrers, although one was sustained without leave to amend (strict liability) and two with leave to amend (fraudulent concealment and violation of Business and Professions Code section 17200). Boeing (which had just filed its respondents' briefs in McKelvey and Aurness ) then filed a petition for a writ of mandate in which it asked us to compel Judge Wasserman to vacate her orders and sustain the demurrers without leave to amend. We issued an order to show cause so that we could consider all four cases at the same time. ¹⁰

DISCUSSION

On appeal, McKelvey and Aurness contend (I) they should have been permitted to file their second amended complaints which, they say, are sufficient to invoke the delayed discovery rule; (II) the trial court should not have judicially noticed the "truth" of the facts stated in the documents submitted by Boeing in support of its demurrers; (III) the fraudulent concealment

cause of action is sufficient...