Citations
- 137 Cal. App. 4th 292
Full opinion text
Opinion
MIHARA, J.
A group of governmental entities acting for themselves, as class representatives, and on behalf of the People of the State of California, filed a class action against a group of lead manufacturers. The governmental entities alleged that the manufacturers were liable on theories of strict product liability, negligence and fraud for damages caused by lead paint, should be required to abate the public nuisance created by lead paint, and should be enjoined and ordered to pay restitution, disgorge profits and pay civil penalties due to their unfair business practices regarding lead paint. The superior court sustained the manufacturers’ demurrers to the public nuisance causes of action. The governmental entities sought leave to file an amended complaint adding a cause of action for continuing trespass. The court denied leave on the ground that the proposed allegations did not state a cause of action. The manufacturers moved for summary judgment on statute of limitations grounds on the remaining causes of action, and the court granted the motion and dismissed the action.
On appeal, the governmental entities claim that the superior court erred in (1) sustaining the demurrers to the public nuisance causes of action, (2) denying leave to amend to add the proposed continuing-trespass cause of action, and (3) granting summary judgment on statute of limitations grounds. We conclude that the superior court’s rulings were erroneous as to plaintiffs’ public nuisance, strict liability, negligence, and fraud causes of action. We therefore reverse the judgment.
I. Background
A. Early Versions of the Complaint
Plaintiff County of Santa Clara (Santa Clara) filed a class action complaint against a number of lead manufacturers (defendants) in March 2000 alleging causes of action for strict liability, negligence, fraud and concealment, unjust enrichment, indemnity, and unfair business practices. Defendants demurred to the complaint.
Santa Clara, joined by County of Santa Cruz, County of Solano, and County of Alameda, filed an amended complaint that deleted the unfair business practices cause of action and added causes of action for civil conspiracy and nuisance. Defendants again demurred. The superior court overruled the demurrer as to the fraud and concealment cause of action. It sustained the demurrer without leave to amend as to the conspiracy cause of action and with leave to amend as to the remaining causes of action.
In January 2001, these plaintiff counties, joined by County of Kern, City and County of San Francisco, San Francisco Housing Authority, San Francisco Unified School District, City of Oakland, Oakland Housing Authority, Oakland Redevelopment Agency, and Oakland Unified School District (hereafter plaintiffs) as class representatives and on behalf of the People of the State of California (the People), filed a second amended complaint. This complaint continued to allege fraud and concealment, strict liability, and negligence. The other causes of action were replaced by causes of action for negligent breach of special duty, public nuisance, private nuisance, unfair business practices, and false advertising. Two separate public nuisance causes of action were alleged in the second amended complaint. One was brought on behalf of the People and sought abatement. The other public nuisance cause of action was brought by the class plaintiffs, rather than on behalf of the People. It alleged that the class members (local government entities) had suffered a “special injury” due to the “continuing public nuisance” created by defendants. The unfair business practices cause of action was brought solely by City and County of San Francisco (SF) on behalf of the People, and the false advertising cause of action was brought by the class plaintiffs.
Defendants demurred to the public and private nuisance, negligent breach of special duty, and false advertising causes of action. The court overruled the demurrer as to the cause of action for negligent breach of special duty. It sustained the demurrer with leave to amend as to the nuisance causes of action on the ground that “these causes of action sound in products liability rather than nuisance.” It partially sustained the demurrer to the false advertising cause of action with leave to amend.
B. The Third Amended Complaint
In June 2001, plaintiffs filed a third amended complaint that continued to allege the fraud and concealment, strict liability, negligence, negligent breach of special duty, and unfair business practices (UCL) causes of action and replaced the three nuisance causes of action with a single cause of action for public nuisance.
The third amended complaint alleged that defendants were “engaged in the business of, or [were] the successor[s]-in-interest to entities engaged in the business of, researching, formulating, testing, manufacturing, producing, distributing, marketing, promoting, advertising for sale, and/or selling Lead.” Defendants allegedly had “engaged in a pattern of deceit and misinformation” intended to minimize the dangers of lead and attribute lead poisoning to other sources rather than “acknowledging their own culpability.”
Defendants had known about the dangers of lead for nearly a century but had engaged in “a concerted effort to hide the dangers of Lead” from the government and the public. For many years, defendants promoted lead paint for interior use and claimed that it was safe. Defendants tried to stop the government from regulating lead and to prevent the government from requiring warnings about lead’s hazards. Defendants opposed government efforts to combat lead poisoning. Scientific studies had only recently demonstrated that even very low levels of lead exposure could cause serious damage to fetuses, children, and adults.
Plaintiffs identified their damages generally to include: (1) costs that had been incurred to educate the public about the hazards of lead and the steps to take to minimize the risk; (2) costs incurred to inspect and test property and the environment for the presence of lead; (3) costs incurred to train and fund staff to investigate and respond to lead-contaminated properties and lead-exposed children; and (4) costs incurred for “Property Damage,” which was identified as “abatement, removal, replacement, and/or remediation of Lead in private, county, and city owned, managed, leased, controlled, and/or maintained properties.” Plaintiffs alleged that they had been required to expend money to remediate and abate lead on their properties.
C. Demurrer to Public Nuisance Cause of Action
Defendants filed a demurrer to the public nuisance cause of action in the third amended complaint. The court viewed the issue as “novel as to whether or not public nuisance is going to be extended to this kind of conduct. . . .” Plaintiffs argued that “the products liability claim and public nuisance claims are extremely, extremely different types of claims; and there’s very, very significant differences in the remedies that you’re able to seek under a products liability claim versus a public nuisance claim.” The court sustained the demurrer without leave to amend.
D. Proposed Fourth Amended Complaint
In November 2002, plaintiffs sought leave to file a fourth amended complaint adding a cause of action for continuing trespass to real property and amending the UCL cause of action to include Santa Clara (in addition to SF).
The court denied plaintiffs’ request for leavé to file a fourth amended complaint on the ground that the amended complaint “fails to state facts sufficient to constitute a cause of action in continuing trespass.” The court also denied leave to add Santa Clara to the UCL cause of action on the ground that Santa Clara lacked standing to assert such a cause of action on behalf of the People.
E. Summary Judgment Motion and Ruling
In February 2003, defendants moved for summary judgment or summary adjudication of the fraud, strict liability, negligence, and UCL causes of action based solely on the statute of limitations. The limitations period for the fraud, negligence, and strict liability causes of action was three years (Code Civ. Proc., § 338, subds. (b), (d)), and the limitations period for the UCL cause of action was four years. (Bus. & Prof. Code, § 17208.) Defendants argued that all of the claimed injuries had occurred before 1997 and plaintiffs had discovered or should have discovered their causes of action before 1997. Defendants claimed that any injuries had occurred “no later than, and indeed well before, 1978” because plaintiffs were asserting that their injuries occurred “when lead paint was applied to the surfaces of their properties.”
Defendants’ separate statement of undisputed facts was very concise. They asserted that it was undisputed that lead paint was banned for consumer use and for use in public buildings in 1978 and that any lead paint applied to plaintiffs’ buildings had been put there before 1978. Defendants claimed that “[p]laintiffs assert that lead paint is hazardous even if it is in good condition, that lead paint constantly and continuously damages those exposed to it, and that the presence of lead paint in each building containing it is injurious to health.” Because plaintiffs knew of “lead paint health hazards” prior to 1997, all of their causes of action were, according to defendants, barred by the statutes of limitations.
Plaintiffs asserted that defendants were not entitled to summary judgment because plaintiffs could not have identified the damage caused by lead in their buildings any earlier than 1999, when the federal and state laws defining “lead-based paint hazards” were enacted. They claimed that they could not have known “that their buildings exposed persons to Defendants’ lead-based paint at levels likely to result in ‘adverse human health effects’ prior to January 1999, for the simple reason that there did not yet exist any legal standard for identifying these ‘lead-based paint hazards.’ ” (Original italics omitted.) “Plaintiffs cannot rely on informal accounts of what constitutes a ‘lead-based paint hazard.’ Plaintiffs must instead follow governmental standards for identifying and removing such hazards from their properties.”
At the hearing on the motion, plaintiffs conceded that it was “generally recognized” in 1978, and known to them at that time, that lead paint itself was a “poison” and a “hazard.” They also conceded that they were seeking damages solely for testing and remediation. Plaintiffs argued that their knowledge did not cause the limitations period to commence to run. They contended that defendants had failed to demonstrate when plaintiffs’ causes of action accrued, since defendants had not presented any evidence of “deterioration from lead paint in . . . any particular building.” It was agreed with respect to this argument that the issue was “what constitutes damage.” Plaintiffs claimed that the damage occurred when the paint deteriorated, and defendants asserted that the damage occurred when the paint was originally applied. Plaintiffs noted that “in the absence of evidence . . . [of] damage to the property [,] . . . defendants would be in a pretty strong position to say we don’t have a cause of action.”
Defendants argued that lead paint was hazardous from the time of its application. They claimed that it was wrong of plaintiffs to claim that they had to show that a particular building had been damaged. Plaintiffs had earlier claimed that “property by property discovery” was irrelevant to the statute of limitations issue and asked defendants to restrict such discovery until after the resolution of the statute of limitations issue.
The court decided to grant defendants’ motion. “I do this somewhat reluctantly because frankly I think there is a potential for a lot of very interesting litigation here, and I don’t know where it will ultimately end up . . . .” The court found that “the evidence . . . establishes that the injury occurs at the time the paint was applied.” “Whether or not it had started to deteriorate, it was a hazard that had to be dealt with.” “[T]he law is not without controversy as to when the damage occurs, but I think that the better rule is that it all occurs when applied. I think that if you do otherwise, one of the damages is that you separate multiple causes of action between the same parties. That makes no sense to me that that would be the case.” The court found no evidence of concealment that could have delayed the commencement of the limitations period. With regard to the UCL cause of action, the court found that plaintiffs’ allegations related to things that plaintiffs had knowledge of more than four years before filing suit.
In August 2003, the superior court entered an order granting defendants’ summary judgment motion and finding that all of plaintiffs’ remaining causes of action were barred by the statutes of limitations. A judgment of dismissal was entered in October 2003, and plaintiffs filed a timely notice of appeal.
II. Discussion
A. Demurrer
Plaintiffs assert that the superior court erred in sustaining demurrers to their public nuisance causes of action. Two separate public nuisance causes of action were alleged in the second amended complaint: one on behalf of the People seeking abatement and one brought by the class plaintiffs alleging a special injury. The superior court sustained defendants’ demurrer with leave to amend as to both of these causes of action. Plaintiffs’ third amended complaint contained an amended version of the cause of action brought on behalf of the People but omitted the cause of action by the class plaintiffs. The trial court sustained defendants’ demurrer without leave to amend to the public nuisance cause of action in the third amended complaint. We will sometimes refer to the cause of action in the third amended complaint as the representative cause of action and the cause of action that was in the second amended complaint but not in the third amended complaint as the class plaintiffs’ cause of action.
1. Standard of Review
“ ‘On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. . . .’ [Citations.] The only issue on appeal is ‘whether the complaint states facts sufficient to constitute a cause of action.’ ” (A. C. Label Co. v. Transamerica Ins. Co. (1996) 48 Cal.App.4th 1188, 1191 [56 Cal.Rptr.2d 207].)
2. The Representative Public Nuisance Cause of Action
The public nuisance cause of action in the third amended complaint was brought by Santa Clara, SF, and City of Oakland (Oakland) on behalf of the People.* ** It alleged that the People had “a common right to be free from the detrimental affects [sic] of Lead in homes, buildings, and property in the State of California.” Yet “Lead is present on large numbers of homes, buildings, and other property throughout the State of California,” “is injurious to the health of the public” and constitutes a nuisance. “Defendants are liable in public nuisance in that they created and/or contributed to the creation of and/or assisted in the creation and/or were a substantial contributing factor in the creation of the public nuisance” by: “[e]ngaging in a massive campaign to promote the use of Lead on the interiors and exteriors of private residences and public and private buildings and for use on furniture and toys;” failing to warn the public about the dangers of lead; selling, promoting and distributing lead; trying to discredit evidence linking lead poisoning to lead; trying to stop regulation and restrictions on lead; and trying to increase the market for lead. Plaintiffs alleged that the lead distributed by defendants “inevitably has deteriorated and/or is deteriorating and/or will deteriorate thereby contaminating these homes, buildings, and property” and exposing people to lead. The remedy sought was abatement “from all public and private homes and property so affected throughout the State of California.”
Defendants argue that their demurrer to the representative cause of action was properly sustained. They claim that no public nuisance cause of action may be pleaded against a manufacturer of a product that creates a health hazard because such hazards are remediable solely through products liability. They also maintain that this cause of action could never succeed because plaintiffs could not obtain the only remedy they sought—abatement.
Defendants do not maintain that the facts alleged in the third amended complaint fail to satisfy any specific element of a public nuisance. Instead, they claim that, even where the facts would otherwise constitute a public nuisance, a cause of action does not lie because the underlying cause of the public nuisance is a product for which only a products liability cause of action will lie.
“Anything which is injurious to health ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property ... is a nuisance.” (Civ. Code, § 3479, italics added.) “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) “The remedies against a public nuisance are: PR] 1. Indictment or information; PR] 2. A civil action; or, PR] 3. Abatement.” (Civ. Code, § 3491.) “A civil action may be brought in the name of the people of the State of California to abate a public nuisance . . . .” (Code Civ. Proc., § 731; see Gov. Code, § 26528.)
“[Pjublic nuisances are offenses against, or interferences with, the exercise of rights common to the public.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103 [60 Cal.Rptr.2d 277, 929 P.2d 596], original italics.) “Of course, not every interference with collective social interests constitutes a public nuisance. To qualify, and thus be enjoinable [or abatable], the interference must be both substantial and unreasonable.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105 [60 Cal.Rptr.2d 277, 929 P.2d 596] (Acuna).) It is substantial if it causes significant harm and unreasonable if its social utility is outweighed by the gravity of the harm inflicted. (Acuna, at p. 1105.)
Santa Clara, SF, and Oakland brought a civil action in the name of the People seeking to abate a public nuisance. They alleged that lead causes grave harm, is injurious to health, and interferes with the comfortable enjoyment of life and property. Clearly their complaint was adequate to allege the existence of a public nuisance for which these entities, acting as the People, could seek abatement. The next question was whether defendants could be held responsible for this public nuisance.
“[L]iability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.” (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38 [13 Cal.Rptr.3d 865], italics added (Modesto); see Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1137 [281 Cal.Rptr. 827]; Selma Pressure Treating Co. v. Osmose Wood Preserving Co. (1990) 221 Cal.App.3d 1601, 1619-1620 [271 Cal.Rptr. 596]; Shurpin v. Elmhirst (1983) 148 Cal.App.3d 94, 101 [195 Cal.Rptr. 737].)
Here, Santa Clara, SF, and Oakland alleged that defendants assisted in the creation of this nuisance by concealing the dangers of lead, mounting a campaign against regulation of lead, and promoting lead paint for interior use even though defendants had known for nearly a century that such a use of lead paint was hazardous to human beings. Defendants “[e]ngag[ed] in a massive campaign to promote the use of Lead on the interiors and exteriors of private residences and public and private buildings and for use on furniture and toys.” Had defendants not done so, lead paint would not have been incorporated into the interiors of such a large number of buildings and would not have created the enormous public health hazard that now exists. Santa Clara, SF, and Oakland have adequately alleged that defendants are liable for the abatement of this public nuisance.
Yet defendants claim that they may not be held liable on a public nuisance cause of action because two Court of Appeal opinions have held that public nuisance is an inappropriate cause of action against a product manufacturer for a nuisance caused by the product. They rely on the Second District Court of Appeal’s decision in City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575 [35 Cal.Rptr.2d 876] (San Diego) and the First District Court of Appeal’s decision in Modesto.
San Diego was an action by the city against the manufacturers and distributors of asbestos-containing building materials. (San Diego, supra, 30 Cal.App.4th at p. 578.) The city had purchased and installed the asbestos-containing materials many years earlier. (Id. at p. 579.) The city asserted causes of action for nuisance, strict liability, and negligence based on allegations that its public buildings had been contaminated by asbestos particles from these materials, and it sought to recover “money it spent and will spend to identify and abate the asbestos danger, and for loss of use and decline in value of its property.” (Id. at p. 578.)
One of the issues on appeal in San Diego was whether the defendants could be held liable for creating or assisting in creating a nuisance on the city’s property. (San Diego, supra, 30 Cal.App.4th at pp. 581, 584.) The city claimed that the defendants could be held liable for a continuing nuisance created by the deterioration of the asbestos-containing building materials. (Id. at p. 584.) The Second District concluded that the trial court had not erred in granting judgment on the pleadings “because City has essentially pleaded a products liability action, not a nuisance action.” (Id. at p. 585.) “City cites no California decision, however, that allows recovery for a defective product under a nuisance cause of action. Indeed, under City’s theory, nuisance ‘would become a monster that would devour in one gulp the entire law of tort . . . .’ [Citation.]” (San Diego, supra, 30 Cal.App.4th at p. 586.) Noting that other jurisdictions had not permitted plaintiffs to recover damages under a nuisance theory for “defective asbestos-containing building materials,” the Second District concluded that the city’s cause of action was “a products liability action in the guise of a nuisance action” and affirmed the trial court’s dismissal of the nuisance cause of action. (Id. at pp. 586-587.)
Modesto was an action brought by the City of Modesto’s Redevelopment Agency (the City) against manufacturers and distributors of dry cleaning solvents and equipment and dry cleaning retailers. This action included causes of action for negligence per se and violation of the Polanco Redevelopment Act (Health & Saf. Code, § 33459 et seq.) (the Polanco Act). (Modesto, supra, 119 Cal.App.4th at p. 33.) The complaint alleged that the manufacturers and distributors instructed the dry cleaners that the solvents could be discharged into sewers, or failed to warn them not to do so. (Ibid.) The City sought the cost of cleaning up the sewers, as authorized by the Polanco Act. (Ibid.) The trial court granted summary adjudication to most of the defendants on the City’s causes of action for negligence per se and violation of the Polanco Act. The basis for the summary adjudication was that the manufacturers and distributors had not discharged the solvents or caused or permitted the solvents to be discharged. (Ibid.) The City sought writ relief. (Id. at p. 34.)
The Polanco Act issue required the First District to construe Water Code section 13304. This statute provides that a party is liable for a waste discharge under the Polanco Act if it discharged waste, or caused or permitted a discharge of waste, that created, or threatened to create, “a condition of pollution or nuisance.” (Modesto, supra, 119 Cal.App.4th at pp. 36-37; Wat. Code, § 13304, subd. (a).) The City argued that the defendants were liable for creating or assisting in creating the nuisance caused by the discharge of the solvents even if they had neither directly discharged the waste nor exercised authority over those who did discharge it. (Modesto, supra, 119 Cal.App.4th at p. 36.)
The First District initially concluded that Water Code section 13304 “appears to be harmonious with the common law of [public] nuisance” and decided that the Polanco Act therefore had to be construed in light of the common law principles of public nuisance. (Modesto, supra, 119 Cal.App.4th at pp. 37-38.) It then acknowledged that those who “create or assist [in the creation of]” a public nuisance could be held liable for the nuisance. (Id. at p. 38.) “[Liability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.” (Ibid.)
The First District looked to San Diego for guidance. “We agree with City of San Diego that the law of nuisance is not intended to serve as a surrogate for ordinary products liability.” (Modesto, supra, 119 Cal.App.4th at p. 39.) In the First District’s view, “[mjanufacturing, producing or supplying defective products or failing to warn consumers of the dangers of a defective product” does not amount to assisting in creating a nuisance and “does not fall within the context of nuisance, but is better analyzed through the law of negligence or products liability, which have well-developed precedents to determine liability for failure to warn [and distribution of defective products].” (Id. at pp. 39, 42.)
The First District went on to hold that “manufacturing or selling solvents to dry cleaners, with knowledge of the hazards of those substances, without alerting the dry cleaners to proper methods of disposal” did not amount to creating or assisting in the creation of a nuisance. (Modesto, supra, 119 Cal.App.4th at p. 42.) “Here, any failure to warn was not an activity directly connected with the disposal of solvents. In our view, such behavior is analogous to the manufacture, distribution, and supplying of asbestos-containing materials in City of San Diego.” (Ibid.) On the other hand, the First District also held that “a reasonable fact finder might conclude that defendants who manufactured equipment designed to discharge waste in a manner that will create a nuisance, or who specifically instructed a user to dispose of wastes in such a manner, could be found to have caused or permitted a discharge.” (Id. at pp. 41-42.) It directed the trial court to reconsider its summary adjudication rulings based on these standards. (Id. at p. 44.)
The reasoning in San Diego and Modesto does not dictate the result in the case before us. San Diego was a nuisance action brought by the city on its own behalf for damages to its buildings. The manufacturers and distributors of the asbestos-containing building materials were alleged to be liable for this nuisance because they produced a defective product. Modesto was a statutory action under the Polanco Act by the City on its own behalf for the cost of cleaning up its sewers. The manufacturers and distributors of the dry cleaning solvents were alleged to be liable for the discharge of the solvents because they either instructed the dry cleaners to discharge the solvents into sewers or failed to warn the dry cleaners not to do so. The First District held that those defendants who instructed dry cleaners to discharge the solvents into sewers could be held liable but those who merely failed to warn could not be held liable.
San Diego and Modesto are distinguishable from the case before us. Here, the representative cause of action is a public nuisance action brought on behalf of the People seeking abatement. Santa Clara, SF, and Oakland are not seeking damages for injury to their property or the cost of remediating their property. Liability is not based merely on production of a product or failure to warn. Instead, liability is premised on defendants’ promotion of lead paint for interior use with knowledge of the hazard that such use would create. This conduct is distinct from and far more egregious than simply producing a defective product or failing to warn of a defective product; indeed, it is quite similar to instructing the purchaser to use the product in a hazardous manner, which Modesto found could create nuisance liability.
A representative public nuisance cause of action seeking abatement of a hazard created by affirmative and knowing promotion of a product for a hazardous use is not “essentially” a products liability action “in the guise of a nuisance action” and does not threaten to permit public nuisance to “ ‘become a monster that would devour in one gulp the entire law of tort....’” (San Diego, supra, 30 Cal.App.4th at pp. 586-587.) Because this type of nuisance action does not seek damages but rather abatement, a plaintiff may obtain relief before the hazard causes any physical injury or physical damage to property. A public nuisance cause of action is not premised on a defect in a product or a failure to warn but on affirmative conduct that assisted in the creation of a hazardous condition. Here, the alleged basis for defendants’ liability for the public nuisance created by lead paint is their affirmative promotion of lead paint for interior use, not their mere manufacture and distribution of lead paint or their failure to warn of its hazards.
In contrast, a products liability action may be brought only by one who has already suffered a physical injury to his or her person or property, and the plaintiff in a products liability action is limited to recovering damages for such physical injuries. A products liability action does not provide an avenue to prevent future harm from a hazardous condition, and it cannot allow a public entity to act on behalf of a community that has been subjected to a widespread public health hazard. For these reasons, we are convinced that the public nuisance cause of action in the third amended complaint is not a disguised version of plaintiffs’ products liability causes of action and is not invalid under the theory set forth in San Diego and Modesto.
The mere fact that plaintiffs alleged both a public nuisance cause of action and products liability causes of action in their third amended complaint is of no moment. “That a given set of facts fortuitously supports liability on two legal theories is not a principled reason to deny a party the right to pursue each theory.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 104 [87 Cal.Rptr.2d 754].) We do not believe that the fact that defendants were manufacturers and distributors of lead means that they may not be held liable for their intentional promotion of the use of lead paint on the interiors of buildings with knowledge of the public health hazard that this use would create. The fact that the pre-1978 manufacture and distribution of lead paint was “in accordance with all existing statutes does not immunize it from subsequent abatement as a public nuisance.” (City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 101-102 [48 Cal.Rptr. 889, 410 P.2d 393].)
Defendants also assert that the representative cause of action was flawed because defendants lacked the ability to abate the alleged nuisance, and abatement was the only remedy that Santa Clara, SF, and Oakland could seek. “An abatement of a nuisance is accomplished by a court of equity by means of an injunction proper and suitable to the facts of each case.” (Sullivan v. Royer (1887) 72 Cal. 248, 249 [13 P. 655]; see People v. Selby Smelting And Lead Co. (1912) 163 Cal. 84, 90 [124 P. 692].) “[Although California’s general nuisance statute expressly permits the recovery of damages in a public nuisance action brought by a specially injured party, it does not grant a damage remedy in actions brought on behalf of the People to abate a public nuisance.” (People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1983) 33 Cal.3d 328, 333, fn. 11 [188 Cal.Rptr. 740, 656 P.2d 1170].) The plaintiffs in a representative public nuisance action may not avoid this rule by seeking damages in the form of the “costs of abatement.” (County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, 859-860 [223 Cal.Rptr. 846].)
Defendants make this contention notwithstanding the fact that this issue is before us on review of a trial court order sustaining a demurrer without leave to amend. Our role is limited to considering whether the third amended complaint “ ‘states facts sufficient to constitute a cause of action.’ ” (A. C. Label Co. v. Transamerica Ins. Co., supra, 48 Cal.App.4th 1188, 1191.) The third amended complaint clearly alleges that lead remains present in buildings in Santa Clara, SF, and Oakland, and that removal of this lead is necessary to prevent future harm to the public. There is no indication in the third amended complaint that defendants lack the ability to comply with an abatement order requiring them to remove the lead in these buildings. While Santa Clara, SF, and Oakland may not recover damages or reimbursement for past remediation of these hazards, the pleaded representative public nuisance cause of action seeking future abatement suffers from no apparent infirmity.
Defendants claim that they lack the “ability to abate” and are “in no position to abate” because they do not “own or control” the buildings in which the lead is located. They cite no authority to support the proposition that a complaint alleging facts that otherwise state an abatement cause of action for public nuisance is demurrable on this ground. Abatement, as we have already noted, is accomplished by “an injunction proper and suitable to the facts of each case.” (Sullivan v. Royer, supra, 72 Cal. at p. 249.) While the ability to comply with an injunction must be pleaded in a contempt proceeding (In re Ny (1962) 201 Cal.App.2d 728, 731 [20 Cal.Rptr. 114]), we have located no authority for the proposition that the ability to abate must be affirmatively pleaded in an abatement action. We decline to hold the pleading insufficient for failing to explicitly allege that defendants have the ability to abate the nuisance. We also note that there is no indication that Santa Clara, SF, and Oakland could not have amended the third amended complaint to allege that defendants had the ability to abate if such an allegation was necessary. The trial court erred in sustaining the demurrer to this cause of action without leave to amend.
3. The Class Plaintiffs’ Public Nuisance Cause of Action
This brings us to plaintiffs’ claim that the superior court also erred in sustaining defendant’s demurrer with leave to amend to the class plaintiffs’ public nuisance cause of action in the second amended complaint. Plaintiffs chose not to amend that cause of action. Defendants assert that plaintiffs are precluded from challenging the court’s ruling on that cause of action because they filed a third amended complaint. We disagree.
“Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party” if the intermediate order was not appealable. (Code Civ. Proc., § 906, italics added.) When a demurrer is sustained with leave to amend, and the plaintiff chooses not to amend but to stand on the complaint, an appeal from the ensuing dismissal order may challenge the validity of the intermediate ruling sustaining the demurrer. (Bank of America v. Superior Court (1942) 20 Cal.2d 697, 703 [128 P.2d 357].) On the other hand, where the plaintiff chooses to amend, any error in the sustaining of the demurrer is ordinarily waived. (Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 311 [70 Cal.Rptr. 849, 444 P.2d 481]; Metzenbaum v. Metzenbaum (1948) 86 Cal.App.2d 750, 752 [195 P.2d 492].)
Here, the order sustaining the demurrer to the class plaintiffs’ public nuisance cause of action in the second amended complaint with leave to amend involved the merits of the cause of action and was not directly appealable. Plaintiffs elected to stand on their second amended complaint as to that cause of action rather than attempt to amend that cause of action. The rule that a choice to amend waives any error can reasonably be applied only on a cause-of-action-by-cause-of-action basis. If a plaintiff chooses not to amend one cause of action but files an amended complaint containing the remaining causes of action or amended versions of the remaining causes of action, no waiver occurs and the plaintiff may challenge the intermediate ruling on the demurrer on an appeal from a subsequent judgment. It is only where the plaintiff amends the cause of action to which the demurrer was sustained that any error is waived. Here, by choosing not to amend the class plaintiffs’ public nuisance cause of action, plaintiffs clearly elected to stand on the second amended. complaint with respect to that cause of action and may challenge the court’s ruling on that cause of action on an appeal from the subsequent dismissal of their action.
Code of Civil Procedure section 472c confirms this analysis. “The following orders shall be deemed open on appeal where an amended pleading is filed after the court’s order: [][] (1) An order sustaining a demurrer to a cause of action within a complaint or cross-complaint where the order did not sustain the demurrer as to the entire complaint or cross-complaint.” (Code Civ. Proc., § 472c, subd. (b).) Here, the superior court’s order sustaining the demurrer to the class plaintiffs’ public nuisance cause of action in the second amended complaint did not sustain the demurrer as to all of the causes of action. Thus, the validity of that order was “open on appeal” notwithstanding the fact that an amended pleading was thereafter filed.
We therefore reach the merits of plaintiffs’ contention that the trial court erred in sustaining the demurrer to the class plaintiffs’ public nuisance cause of action in the second amended complaint.
Ordinarily, “[w]here a public entity can show it has a property interest injuriously affected by the nuisance, then, like any other such property holder, it should be able to pursue the full panoply of tort remedies available to private persons.” (Selma Pressure Treating Co. v. Osmose Wood Preserving Co., supra, 221 Cal.App.3d at p. 1616 [271 Cal.Rptr. 596].) Here, plaintiffs have pursued the full panoply of tort remedies. They seek abatement and damages on a host of theories. The narrow question we must resolve is whether, in addition to a cause of action for public nuisance seeking abatement and products liability causes of action seeking damages, they may also pursue a public nuisance cause of action seeking damages.
In light of San Diego and Modesto, we are reluctant to extend liability for damages under a public nuisance theory to an arena that is otherwise fully encompassed by products liability law. The class plaintiffs’ public nuisance cause of action, unlike the representative cause of action, is brought on their own behalf (rather than on behalf of the People) and seeks damages for a special injury rather than abatement, so, unlike the representative cause of action, it is difficult to distinguish the class plaintiffs’ public nuisance cause of action from the causes of action that were disapproved in San Diego and Modesto. It is true that the class plaintiffs’ public nuisance cause of action, like the representative cause of action, alleges that defendants did something more than merely manufacture and distribute a product and fail to warn. Nevertheless, the class plaintiffs’ public nuisance cause of action is much more like a products liability cause of action because it is, at its core, an action for damages for injuries caused to plaintiffs’ property by a product, while the core of the representative cause of action is an action for remediation of a public health hazard. While the issue is close, we are not convinced that San Diego and Modesto erred in concluding that liability for damages for product-related injuries should not be extended beyond products liability law to public nuisance law. The superior court did not err in sustaining the demurrer to the class plaintiffs’ public nuisance cause of action.
B. Denial of Leave to Amend To Add Trespass Cause of
Action
Plaintiffs contend that the superior court abused its discretion in denying leave to amend the third amended complaint to add a continuing trespass cause of action.
1. Standard of Review
The superior court was vested with discretion to grant or deny leave to file an amended pleading adding a cause of action (Code Civ. Proc., § 473, subd. (a)(1)), and we review its decision to deny leave for abuse of discretion. “When a request to amend has been denied, an appellate court is confronted by two conflicting policies. On the one hand, the trial court’s discretion should not be disturbed unless it has been clearly abused; on the other, there is a strong policy in favor of liberal allowance of amendments. This conflict ‘is often resolved in favor of the privilege of amending, and reversals are common where the appellant makes a reasonable showing of prejudice from the ruling.’ ” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-297 [216 Cal.Rptr. 443, 702 P.2d 601].)
Here, the superior court concluded that the additional allegations in the proposed amended pleading would not have stated a cause of action for trespass. Since plaintiffs could not have been prejudiced by denial of leave if the additional allegations would not state a cause of action for trespass, we must determine whether the superior court’s conclusion was correct.
2. The Proposed Trespass Allegations
The proposed trespass cause of action would have been a class action brought by Santa Clara, SF, and Oakland, and was limited to properties “owned, managed, leased, controlled, and/or maintained by Plaintiffs and the Class.” Abatement was sought as a remedy. Plaintiffs alleged they had been harmed by defendants’ campaign to market, distribute, and promote the use of lead and to stop regulation and restrictions on lead, and defendants’ failure to warn the public of the dangers of lead despite their knowledge that lead was harmful. Plaintiffs sought to allege that defendants had “caused the placement of Lead on Plaintiffs’ and Class members’ properties, or otherwise directly or indirectly caused Lead to invade their properties and interfere with their exclusive interest in and possession of’ these properties. The proposed trespass cause of action would have alleged that the lead on these properties “has deteriorated and/or is deteriorating and/or will deteriorate thereby contaminating these homes, buildings, and properties, constituting a continuing interference with the possession and/or use of these properties, and danger to the inhabitants thereof.” The proposed fourth amended complaint would have alleged that the trespass was a continuing one because “[t]he impact of Lead . . . may vary over time.”
3. Analysis
“ ‘[Trespasses may be committed by consequential and indirect injuries as well as by direct and forcible injuries.’ ” (Gallin v. Poulou (1956) 140 Cal.App.2d 638, 641 [295 P.2d 958].) However, “ ‘[trespass is an unlawful interference with possession of property . . . [and] [p]eaceable entry on land by consent is not actionable.’ ” (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d 1125, 1141 [281 Cal.Rptr. 827], italics added.)
The flaw in the proposed trespass cause of action is that plaintiffs’ pleadings indisputably establish that the lead was placed on plaintiffs’ property by plaintiffs or with their consent. Their alleged lack of knowledge at that time of lead’s dangerous propensities does not vitiate their consent to the placement of the lead on their properties, though it may make that consent uninformed. The most analogous case to this one is one involving asbestos and trespass.
“Fibreboard placed defective products into the stream of commerce without alerting the public as to their hazardous nature. Plaintiffs, not knowing the products were hazardous, purchased them and incorporated them into their buildings. The purchase of the products with the resulting transfer of ownership and control to plaintiffs halts the directive flow of the product by defendants and takes these cases out of the trespass paradigm. It is the plaintiffs’ property, voluntarily incorporated into the buildings with plaintiffs’ permission, that is causing the harm and, thus, there is no third party interference sufficient to sustain trespass liability. Fibreboard may be liable for many wrongs, but they did not commit a trespass by selling a bad product. That the product ends up on a person’s land and is intended to be used on the land does not change the picture. All products end up in a physical location that is owned by someone. If they are defective and cause harm, the manufacturer will be liable under a variety of products liability theories but not for a wrongful entry or invasion upon the land.” (Fibreboard Corp. v. Hartford Accident & Indemnity Co. (1993) 16 Cal.App.4th 492, 512 [20 Cal.Rptr.2d 376] (Fibreboard).)
It is true that Fibreboard arose in the context of an insurance coverage dispute between the manufacturer and the insurer, but its reasoning is equally applicable to the proposed trespass cause of action alleged here. Where the owner of property voluntarily places a product on the property and the product turns out to be hazardous, the owner cannot prosecute a trespass cause of action against the manufacturer of that product because the owner has consented to the entry of the product onto the land. The superior court did not abuse its discretion in denying leave to file an amended pleading adding the proposed trespass cause of action because the proposed allegations did not state a trespass cause of action.
C. Summary Judgment on Statute of Limitations
Grounds
Defendants moved for summary judgment on plaintiffs’ strict liability, negligence, fraud, and UCL causes of action on statute of limitations grounds, and the superior court granted their motion. Plaintiffs claim that the superior court erred in doing so because none of these causes of action were barred by the statutes of limitations.
1. Standard of Review
“Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo.” (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210 [77 Cal.Rptr.2d 660].) “While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [245 Cal.Rptr. 658, 751 P.2d 923].)
When the defendant moves for summary judgment on statute of limitations grounds, the defendant bears both the initial burden of production and the burden of persuasion that the limitations period has expired. (Code Civ. Proc., § 437c, subd. (p)(2).) The “initial burden of production [requires the defendant] to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493].) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) The burden of persuasion requires the defendant to show that there are no triable issues of material fact and that the defendant is entitled to judgment as a matter of law. {Id. at p. 850.)
2. Accrual and the Commencement of the Limitations
Period
“ ‘Generally, a cause of action accrues and the statute of limitation begins to run when a suit may be maintained.. . . “Ordinarily this is when the wrongful act is done and the obligation or the liability arises, but it does not ‘accrue until the party owning it is entitled to begin and prosecute an action thereon.’ ”... In other words, “[a] cause of action accrues ‘upon the occurrence of the last element essential to the cause of action.’ ” ’ ” (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 815 [107 Cal.Rptr.2d 369, 23 P.3d 601], citations omitted, italics added.) A tort cause of action accrues only when “appreciable and actual harm” is caused by the wrongful conduct. (Budd v. Nixen (1971) 6 Cal.3d 195, 201 [98 Cal.Rptr. 849, 491 P.2d 433].) “If the [wrongfiil] conduct does not cause damage, it generates no cause of action in tort.” (Budd, at p. 200.)
But the limitations period does not begin to run until the plaintiff discovers or should have discovered the cause of action. “The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. ... A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1109, citation and fn. omitted.) “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." (Id. at p. 1111.)
Since a cause of action accrues when the elements of the cause of action, including damage, occur (Howard Jarvis Taxpayers Assn. v. City of La Habra, supra, 25 Cal.4th 809, 815), the “appreciable and actual harm” that results in accrual must be harm of the specific type that is recoverable as damages on that type of cause of action. (Zamora v. Shell Oil Co. (1997) 55 Cal.App.4th 204, 209-210 [63 Cal.Rptr.2d 762].)
3. Negligence and Strict Liability Causes of Action
The strict liability causes of action alleged that defendants failed to warn consumers that lead was dangerous, gave “inadequate post-marketing warning and instruction of the dangers posed by Lead,” and produced a defectively designed product that injured the class plaintiffs by causing them to incur costs for “inspecting, testing, and removing the hazards” and other unspecified damages.
The negligence cause of action alleged that defendants negligently “manufactured, designed, produced, processed, distributed, marketed, labeled, packaged, advertised, and sold” lead, causing injuries and damage to the class plaintiffs. The damage allegations were the same as those for the strict liability causes of action.
The cause of action for negligent breach of special duty alleged that defendants had falsely assured the public that lead was safe and had resisted efforts to regulate lead and require warnings. This cause of action alleged that defendants’ conduct had caused “property damage,” without further specificity.
The elements of a negligence cause of action are duty, breach, causation and damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614 [76 Cal.Rptr.2d 479, 957 P.2d 1313].) The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or a failure to warn, causation, and injury. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
In this case, it is essentially indisputable that any breach of duty and any manufacturing or design defect or failure to warn occurred no later than 1978. A cause of action for negligence or strict products liability therefore would accrue upon plaintiffs suffering injury as a result of defendants’ wrongful conduct, and the limitations period would expire three years later. (Code Civ. Proc., § 338, subd. (b).) Not just any damage will cause a strict liability or negligence cause of action to accrue. One thing is clear: economic loss alone, without physical injury, does not amount to the type of damage that will cause a negligence or strict liability cause of action to accrue. “In a strict liability or negligence case, the compensable injury must be physical harm to persons or property, not mere economic loss.” (Zamora v. Shell Oil Co., supra, 55 Cal.App.4th at p. 210, italics added.)
Since plaintiffs are public entities, not human beings, and are not authorized to sue on behalf of any human beings with respect to the strict liability and negligence causes of action, accrual of these causes of action depended on the occurrence of physical injury to plaintiffs’ property. Defendants argue that the limitations period has expired because the only possible physical injury to plaintiffs’ property was the original application of lead paint, which occurred decades before the initiation of this action. Plaintiffs claim that their property suffered physical injury when the lead paint subsequently deteriorated and “contaminated” their property.
Clearly the time of accrual of these causes of action is critical. Our examination of this issue leads us to the conclusion that the law does not support either of the positions taken by the parties. Plaintiffs’ allegations of damage to their property do not include any allegations of physical injury (as that term has been construed), and therefore their causes of action for negligence and strict products liability, as alleged in the third amended complaint, have never accrued.
We begin our analysis with the California Supreme Court’s decision in Aas v. Superior Court (2000) 24 Cal.4th 627 [101 Cal.Rptr.2d 718, 12 P.3d 1125]. Aas involved construction defects lawsuits against the developers and contractors (whom we will refer to collectively as the developers) who had built a group of single- family homes and condominiums. (Id. at pp. 632-633.) The homeowners alleged causes of action for strict liability and negligence and sought the cost of repair and the diminution in value of their homes. (Id. at p. 633.) There was no claim of personal injury. {Ibid.) The developers sought an in limine order “excluding evidence of those alleged construction defects that have not caused property damage.” {Ibid.) The homeowners acknowledged that many of the defects had not actually caused property damage, but they opposed the developers’ request. The trial court issued an order barring evidence of defects “that have not resulted in bodily injury or physical property damage, i.e., [defects causing only] ‘economic loss’ . . . .” (Id. at p. 634.) The homeowners sought a writ of mandate overturning the order. (Id. at pp. 633-634.) The Court of Appeal denied relief, and the California Supreme Court granted review to decide “whether plaintiffs may state a cause of action for construction defects that have not caused property damage.” {Id. at pp. 634-635.)
The homeowners acknowledged that they could not recover on their strict liability cause of action for defects that had not caused property damage, but they asserted that they could recover in negligence. (Aas v. Superior Court, supra, 24 Cal.4th at p. 635.) The California Supreme Court began with the proposition that “[i]n actions for negligence, a manufacturer’s liability is limited to damages for physical injuries; no recovery is allowed for economic loss alone.” (Id. at p. 636.) It cited Seely v. White Motor Co. (1965) 63 Cal.2d 9 [45 Cal.Rptr. 17, 403 P.2d 145] in support of this proposition. Seely had held that recovery in strict liability and negligence actions is limited to damages for physical harm to person or property, and economic loss is not recoverable. (Seely, at p. 18.) Aas reaffirmed Seely. “Whatever the product, whether homes or automobiles, strict liability affords a remedy only when the defective product causes property damage or personal injury. The tort does not support recovery of damages representing the lost benefit of a bargain, such as the cost of repairing a defective product or compensation for its diminished value,” although “property damage compensable in tort can exist when a defective component damages other parts of the same product.” (Aas v. Superior Court, supra, 24 Cal.4th at pp. 639, 641.)
The homeowners argued that they should be allowed to recover economic losses on a special relationship theory. In discussing the multi-factor special relationship test, the California Supreme Court observed that the homeowners had not shown a high degree of certainty that they suffered injury. “Construction defects that have not ripened into property damage, or at least into involuntary out-of-pocket losses, do not comfortably fit the definition of ‘ “appreciable harm” ’—an essential element of a negligence claim.” (Aas v. Superior Court, supra, 24 Cal.4th at p. 646.) “To say that one’s house needs repairs costing a certain amount is not necessarily to say that one has suffered the type of harm cognizable in tort, as opposed to contract.” (Id. at p. 646.)
Aas rejected the homeowners’ argument that property damage should not be required because “to require builders to pay to correct defects as soon as they are detected rather than after property damage or personal injury has occurred might be less expensive.” (Aas v. Superior Court, supra, 24 Cal.4th at p. 649.) The five-justice majority also rejected the Chief Justice’s proposal in his concurring and dissenting opinion that negligence recovery should be permitted for “serious defects and code violations posing a significant risk of death, personal injury, or considerable property damage.” (Id. at p. 649.) “[Wjhether the economic loss rule applies depends on whether property damage has occurred rather than on the possible gravity of damages that have not yet occurred.” (Id. at p. 650.)
In this case, plaintiffs could properly maintain an action for damages based on negligence or strict liability only if they had suffered physical injury to their buildings. Plaintiffs alleged only that paint containing lead pigment is harmful to human beings. Plaintiffs’ general allegations in their complaint did not include any allegation of physical injury to their buildings. Plaintiffs alleged that they “must now pay for abatement programs to identify and then remove Lead” from their buildings. They alleged that they “have been forced to expend, are expending, and will expend money to inspect and test [their buildings] for Lead and to demolish, refurbish, or otherwise remedy the harmful effects of these properties.” And plaintiffs alleged that their “Property Damage” from all of defendants’ wrongful conduct consisted of “incurred costs for the abatement, removal, replacement, and/or remediation of Lead ...”
Plaintiffs’ specific damages allegations in support of their strict liability and negligence causes of action also omitted any allegations of physical injury to plaintiffs’ buildings. They sought recovery of the “costs of inspecting, testing, and removing the [Lead] hazards created by Defendants and the direct costs for the abatement, removal, replacement, an