Vickers v. Wilson CA2/6

Filed 9/18/13 Vickers v. Wilson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

CAROLYN VICKERS, INC., 2d Civil No. B246212 (Super. Ct. No. CV090210) Plaintiff and Appellant, (San Luis Obispo County)

v.

LINDA WILSON, et. al.,

Defendants and Respondents.

Carolyn Vickers, Inc. (CVI) purchased undeveloped real estate in San Luis Obispo County from Allen Little Ventures #1, LLC (ALV) in 2006. In 2007, CVI learned the property could not be developed due to soil and groundwater contamination. ALV had purchased the property from Phyllis Madonna. Respondents Linda Wilson and Wilson & Company Real Estate were Madonna's real estate agent in that transaction. In 2009, CVI and ALV sued Madonna, two title companies, several oil companies and Does 1 through 200 on various tort and contract theories. In February 2012, CVI amended its complaint to name respondents as Doe 1 and Doe 2. They demurred on the ground that the statute of limitations had run. After granting leave to amend, the trial court sustained respondents' demurrer to CVI's fourth amended complaint because CVI failed to allege facts justifying its late discovery of the causes of action against respondents. CVI

contends the trial court erred because its Doe amendments "relate back" to the date its original complaint was filed. (Code Civ. Proc., § 447.)1 We affirm. Facts Appellant's original complaint alleged that, before 2005, Phyllis Madonna owned Tract 1259 in San Luis Obispo County. Four pipelines, used to transport oil and oil products, ran across Tract 1259. These pipelines were owned, operated and maintained by various oil companies. In 1981, an employee of Madonna's struck a pipeline owned by Unocal with a backhoe, causing an oil spill. Madonna and Unocal did not clean up the spill or its after effects, resulting in soil and groundwater contamination. Other pipelines owned by other companies may also have leaked or discharged oil on the property. Madonna knew about the contamination when she hired respondents in 2004 "to act as her realtor/broker to sell Tract 1259." Although she had a duty to disclose environmental hazards and other defects affecting the property, "Madonna and her employees or agents failed to disclose" to ALV the existence of the pipelines, the 1981 spill, or the resulting soil and groundwater contamination. In addition, title companies involved in the sale to ALV failed to disclose any easements for oil pipelines or the existence of the pipelines. With respect to respondents, the original complaint further alleged, "Madonna and Linda Wilson and Wilson & Company failed to disclose that: there were oil pipelines running through and adjacent to the Tract 1259; one of Mrs. Madonna and/or her husband and/or their company's employees or agents had struck one of the pipelines in April 1981 causing a substantial amount of oil to spill on and into Tract 1259 causing serious soil and groundwater contamination; Madonna and/or her husband and/or their company, and/or the responsible oil companies had failed to clean up the oil spill and resulting contamination; and that the oil pipelines owned, operated and/or maintained by [the oil company defendants] may have leaked and/or otherwise discharged oil and/or