Primex Farms v. Roll Global CA5 ( 2015 )

Filed 3/27/15 Primex Farms v. Roll Global CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
PRIMEX FARMS, LLC,
F066780
Plaintiff and Appellant,
(Super. Ct. No. 10CECG01114)
v.
ROLL GLOBAL, LLC et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Fresno County. Donald S.
Black, Judge.
Whelan Law Group, Walter W. Whelan, Brian D. Whelan and Lucas C. Whelan;
McCormick Barstow et al., Todd W. Baxter and Scott Reddie for Plaintiff and Appellant.
Horvitz & Levy, Barry R. Levy and Julie L. Woods; Roll Law Group, Kristina M.
Diaz, Johnny Traboulsi, and J.P. Pecht for Defendants and Respondents.
-ooOoo-
Plaintiff Primex Farms, LLC (Primex), a California pistachio processor, sued
defendants Roll International Corporation (Roll), Westside Mutual Water Company, LLC
(WMWC), and Paramount Farming Company, LLC (Paramount Farming) for intentional
and negligent interference with Primex’s prospective economic advantage. Primex
alleged the three defendants conspired to lure away the business of pistachio grower
Chaparral Farms, Inc. (Chaparral) by offering to sell irrigation water in exchange for a
long-term sales contract for pistachios—a “water for pistachios” deal—and, in doing so,
interfered with Primex’s existing business and contractual relationship with Chaparral.
Primex further alleged that the sale of WMWC’s irrigation water for profit to Chaparral,
which was not a member of WMWC, was “independent wrongful conduct” because the
conduct constituted a violation of the Public Utilities Code.
The trial court entered a judgment for defendants after granting their motion for
directed verdict. The court found Primex’s claims were barred by the applicable two-
year statute of limitations because Primex knew or suspected all the elements of the
claims by the end of August 2007, but did not commence this action until March 2010.
Previously, the court ruled that Primex’s conspiracy allegations failed under the agent’s
immunity rule.
Primex maintains that its tort claims were timely and raises three arguments in
support of its position: (1) the trial court erred in striking the civil conspiracy allegations,
and the limitations period could only begin when the last overt act in furtherance of the
conspiracy occurred, which Primex alleged was in November 2008; (2) Primex is entitled
to the benefit of the discovery rule so that the limitations period only began to run when it
discovered that defendant WMWC sold irrigation water to Chaparral in violation of the
Public Utilities Code; and (3) the claims did not accrue until WMWC actually delivered
water to Chaparral, and this did not occur until the summer of 2008.
We conclude Primex’s claims are untimely and affirm the judgment.
2.
FACTS AND PROCEDURAL HISTORY
Background
Primex, which is owned by Ali Amin and his wife, has been in the business of
processing pistachios for pistachio growers in California since 2002. From 2002 until
2006, pistachio grower Chaparral sold its pistachio crops to Primex for processing. In
October 2006, Chaparral’s farm manager, Bill Klepper, signed a three-year contract with
Primex to deliver its crops to Primex for 2006, 2007, and 2008. In July 2007, however,
Chaparral entered into another three-year contract to sell all of its crops harvested in
2007, 2008, and 2009 to Cal Pure Pistachios, Inc. (Cal Pure). This contract was signed
by Chaparral’s owner, M.T. Alaghbandian.
Alaghbandian lived in Iran. Amin’s family knew Alaghbandian’s family, and
Amin’s uncle had a friendship with Alaghbandian going back many years. Amin and his
family were also pistachio growers with about 4,000 acres of orchards in Kern and
Madera Counties in 2007. Klepper worked as the farm manager for Amin’s orchards
from 1989 until his death in 2008.1
Prior lawsuit
In an earlier lawsuit (the Chaparral case), Primex sued Chaparral for breach of
contract based on Chaparral’s failure to deliver to Primex its 2007 and 2008 pistachio
crops. Primex filed its original complaint in the Chaparral case on August 31, 2007. In
the original complaint, Primex also sued Cal Pure, asserting claims of interference with
contract and interference with economic advantage. In an amended complaint filed in
September 2008, Primex added Paramount Farms, Inc. (Paramount Farms) as a
defendant, alleging that Paramount Farms was the dominant grower and processor of
pistachios in California and was the parent corporation of Cal Pure. Primex alleged that
Paramount Farms, “[d]irectly and through entities and instrumentalities that it controls”
1 These background facts are based on Primex’s allegations and Amin’s trial testimony and
are not in dispute.
3.
“maintained a dominant share of water entitlements at water banks in Kern and Fresno
Counties.” Primex further alleged that Cal Pure and Paramount Farms conspired to
coerce pistachio growers to switch processors and do business with Paramount Farms or
Cal Pure “in return for Paramount [Farms] delivering to the coerced growers irrigation
water that is in short supply and in high demand.” Primex asserted claims of interference
with contract, interference with economic advantage, unfair business practices, and
violations of the Cartwright Act (Bus. & Prof. Code § 16700 et seq.) for reciprocal
dealing and tying arrangement against both Cal Pure and Paramount Farms (the
Paramount I defendants).2
In the Chaparral case, the trial court granted the Paramount I defendants’ motion
for summary judgment on February 25, 2010. The court found there was no triable issue
as to whether the Paramount I defendants had knowledge of (1) Chaparral’s three-year
contract with Primex (an element necessary to prove the claim for intentional interference
with contract) or (2) “the pre-existing business relationship, with the probability of future
economic benefit, between Primex and Chaparral” (an element necessary to prove the
claim for interference with prospective economic advantage).3
2 According to the declaration of Stewart Resnick, he and his wife Lynda Resnick were
trustees of the Stewart and Lynda Resnick Revocable Trust, which owned various farming and
business entities. As the trustees of the trust, the Resnicks were the indirect owners of
defendants Roll and Paramount Farming and they indirectly owned 98 percent of defendant
WMWC. The Resnicks were also the indirect owners of Paramount Farms, and Stewart Resnick
was the chairman of the board, chief executive officer, and president of Cal Pure, which was a
nonprofit agricultural cooperative association. Defendants in the current case note that the
parties often referred to the defendants in the Chaparral case (excluding Chaparral) and the
defendants in the current case collectively as “Paramount.” We will refer to Cal Pure and
Paramount Farms (the Paramount-related entities in the Chaparral case) collectively as the
“Paramount I defendants,” and we sometimes refer to the three defendants in the current case
collectively as the “Paramount II defendants.”
3 The court wrote in its tentative ruling, which it later adopted, “Th[e] evidence [submitted
by the parties] negates the element of knowledge of the Primex contract or knowledge of the pre-
existing business relationship, with the probability of future economic benefit, between Primex
and Chaparral.”
4.
Earlier in February 2010, the Paramount I defendants made an offer under Code of
Civil Procedure section 998 to settle the case for $10,000. The day after the trial court
ruled on the summary judgment motion, Primex’s attorney signed the written section 998
offer in acceptance of the offer. The Paramount I defendants objected to enforcement of
the section 998 agreement, arguing that their offer expired by operation of law when the
court granted summary judgment. The trial court rejected the Paramount I defendants’
argument and enforced the section 998 agreement. A judgment in the amount of $10,000
against the Paramount I defendants was filed on March 2, 2010.
Primex’s contract claim against Chaparral went to jury trial, and Primex won a
$3.4 million judgment. This court affirmed the judgment against Chaparral on appeal.
(See Primex Farms, LLC v. Chaparral Farms, Inc. (Oct. 23, 2012, F060514 [nonpub.
opn.], p. 2.)
Current lawsuit
On March 29, 2010, Primex filed its initial complaint in this case. The third
amended complaint, which is the operative complaint, was filed in July 2011. Primex
alleged that by the spring of 2007, the Paramount II defendants “developed a plan to
target certain pistachio growers in California to entice them to sell all or, at least, a larger
percentage of their pistachio crops to Paramount,[4] which would result in reduced
amounts of pistachios processed by [Primex] and other competing processors and more
profit for Defendants.” Specifically with respect to Chaparral, Primex alleged the
Paramount II defendants “interfered with the business relationship between [Primex] and
Chaparral and the prospective economic advantage that such relationship afforded
[Primex] by causing Chaparral to sever its business relationship with Primex and to enter
into a conflicting three-year contract with Cal Pure,” and Chaparral’s 2007 and 2008
pistachio crops were delivered to Cal Pure instead of Primex.
4 “Paramount” was not defined in the complaint. As defendants note, the parties used the
term “Paramount” to refer to defendants collectively. See footnote 2, ante.
5.
Primex asserted claims of intentional and negligent interference with prospective
economic advantage and alleged a “civil conspiracy to interfere with prospective
economic advantage against all defendants.” (Capitalization omitted.)
In April 2012, the trial court ordered trial to proceed in three phases. In the first
phase, the court would try issues related to the Paramount II defendants’ affirmative
defense that the applicable statute of limitations barred Primex’s claims. The third phase
would address the issue whether the Paramount II defendants committed an
“‘independently wrongful act,’” including whether various provisions of the Public
Utilities Code were violated. The second phase would try all remaining issues not set for
trial in the first or third phase. These issues would include the elements of knowledge,
intent, and causation as to the claims of intentional and negligent interference with
prospective economic advantage.
Judgment on the pleadings with respect to conspiracy allegations
On October 30, 2012, the Paramount II defendants filed a motion for nonstatutory
judgment on the pleadings. They argued, among other things, that the agent’s immunity
rule rendered Primex’s conspiracy allegations meritless as a matter of law. On
November 30, 2012, the trial court granted the motion for judgment on the pleadings as
to the conspiracy allegations, agreeing with the Paramount II defendants that the
conspiracy allegations were “barred by the agent’s immunity rule.”
Trial on statute-of-limitations affirmative defense
In late November 2012, a jury trial began on the first phase of trial, the statute-of-
limitations defense.
Amin testified that pistachio processors were talking about Paramount offering
water to growers to try to sign them up for processing contracts. In the spring of 2007,
this talk was widespread among the other six large pistachio processors in California.5
5 Amin testified there were seven large pistachio processors in California. Paramount was
the largest processor in California and Primex was ranked third or fourth.
6.
Amin had never heard of processors offering water for sale before. He testified, “I
thought it was wrong and, you know, obviously, it was a competitive advantage that we
didn’t have, we didn’t have water to sell.” In the spring of 2007, Amin suspected that
Paramount was, in fact, offering growers water in exchange for providing their pistachios
to Paramount. He agreed that, by late spring of 2007, it was “common knowledge in the
industry” (among processers and growers) that Paramount was offering water to growers
in return for the growers selling their crops to Paramount. One particular pistachio
grower, Larry Easterling, previously told Amin he intended to split his 2007 crop among
three processors and give 20 or 30 percent to Primex. In July 2007, however, Easterling
was apologetic and told Amin that he needed water because of the drought and
Paramount was offering water. As a result, Easterling was not going to deliver any
portion of his crop to Primex.
Amin had family in Iran, and he would travel to Iran at least once a year. Before
the Chaparral lawsuit, Amin would visit Chaparral’s owner, Alaghbandian, during his
trips to Iran, and Alaghbandian “was always very praising of [Amin] and expressed his
gratitude towards all [Amin] did for Chaparral to help them.” During a visit in October
2006, Alaghbandian told Amin, “‘You will always have our crop.’”
In early August 2007, Amin learned from Klepper, Chaparral’s farm manager, that
Chaparral had a contract to deliver its 2007 pistachio crop to Paramount. This was a
surprise to Amin. He was not aware of any issue between Chaparral and Primex over
price. Other pistachio processors reported to Amin that, for the 2007 crop, they also lost
growers or portions of growers’ acreage they used to receive because of Paramount’s
offer of water.
At the time Primex sued Chaparral for breach of contract, Amin believed that
Paramount had offered water as an inducement for Chaparral to sell its pistachio crop to
Paramount.
7.
Directed verdict on statute of limitations
On December 6, 2012, the parties finished presenting evidence on the first phase
of trial, and the Paramount II defendants filed a motion for directed verdict. They argued
the evidence at trial established that Primex suspected and believed in 2007 that
Paramount’s use of irrigation water to entice Chaparral was the only reason to explain
why Chaparral chose to deliver its crop to Paramount instead of Primex. They argued
Primex’s claims for intentional and negligent interference with prospective economic
advantage accrued by the time the Chaparral lawsuit was filed in August 2007 and,
therefore, the claims were barred by the two-year statute of limitations.
The trial court granted the motion. The court found the clear, uncontradicted
evidence adduced through Amin’s testimony showed that Primex’s claims accrued no
later than August 31, 2007, “because by that time [Primex] indisputably knew or
suspected the existence of all of the elements of the claim[s] and [Primex] … neither
plead[ed], nor produced any substantial evidence in support of a claim that it did not by
that time have a factual basis for the claim[s].” The court concluded, “Because this case
was not filed until March 29, 2010, more than two years after [Primex’s] claims accrued,
it is barred by the statute of limitations.”
A judgment in favor of the Paramount II defendants was filed on December 10,
2012.
DISCUSSION
I. Standards of review
We review de novo a trial court’s ruling on a motion for directed verdict.
(Brassinga v. City of Mountain View (1998) 66 Cal. App. 4th 195, 210.) “‘[T]he power of
the court to direct a verdict is absolutely the same as the power of the court to grant a
nonsuit.’ [Citation.] ‘A motion for a directed verdict “is in the nature of a demurrer to
the evidence … and concedes as true the evidence on behalf of the adverse party, with all
fair and reasonable inferences to be deduced therefrom.”’ [Citation.]” (Ibid.)
8.
“An order granting a motion for directed verdict is only permissible when there is
no substantial conflict in the evidence. ‘In ruling on the motion, the court does not
consider credibility of witnesses but gives to the evidence of the party against whom it is
directed all its legal value, indulges every legitimate inference from such evidence in
favor of that party, and disregards conflicting evidence.’ [Citation.]” (McNall v.
Summers (1994) 25 Cal. App. 4th 1300, 1307, quoting 7 Witkin, Cal. Procedure (3d ed.
1985) Trial, §§ 409–410, pp. 412–413.)
We also review de novo a trial court’s order granting a motion for judgment on the
pleadings. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal. 4th 468, 515.) “All properly
pleaded, material facts are deemed true, but not contentions, deductions, or conclusions
of fact or law; judicially noticeable matters may be considered.” (Kapsimallis v. Allstate
Ins. Co. (2002) 104 Cal. App. 4th 667, 672.)
II. Statute of limitations
Civil actions “can only be commenced” within the applicable statute of limitations
“after the cause of action shall have accrued.” (Code Civ. Proc., § 312.) In this case,
defendants properly raised the statute of limitations as an affirmative defense. (See
Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 396 (Norgart).) The statute of limitations
for claims of intentional and negligent interference with prospective economic advantage
is two years. (Code Civ. Proc., § 339; Augusta v. United Service Automobile Assn.
(1993) 13 Cal. App. 4th 4, 10; see Edwards v. Fresno Community Hosp. (1974) 38
Cal. App. 3d 702, 706.) The issue in the first phase of trial was whether Primex
commenced its lawsuit against the Paramount II defendants within two years after its tort
claims accrued.
“Generally speaking, a cause of action accrues [and the statute of limitations
begins to run] at ‘the time when the cause of action is complete with all of its elements.’
[Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 806–807 (Fox).)
9.
We begin with a brief description of the elements of the claims Primex asserted to
determine when the claims accrued.
The elements of the tort of intentional interference with prospective economic
advantage are “‘“(1) an economic relationship between the plaintiff and some third party,
with the probability of future economic benefit to the plaintiff; (2) the defendant’s
knowledge of the relationship; (3) intentional acts on the part of the defendant designed
to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic
harm to the plaintiff proximately caused by the acts of the defendant.” [Citations.]’
[Citation.]” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1153
(Korea Supply).) As part of the third element of the tort, “a plaintiff must [also] plead
and prove that the defendant’s acts are wrongful apart from the interference itself.” (Id.
at p. 1154.)
“The tort of negligent interference with prospective economic advantage is
established where a plaintiff demonstrates that (1) an economic relationship existed
between the plaintiff and a third party which contained a reasonably probable future
economic benefit or advantage to [the] plaintiff; (2) the defendant knew of the existence
of the relationship and was aware or should have been aware that if it did not act with due
care its actions would interfere with this relationship and cause [the] plaintiff to lose in
whole or in part the probable future economic benefit or advantage of the relationship;
(3) the defendant was negligent; and (4) such negligence caused damage to [the] plaintiff
in that the relationship was actually interfered with or disrupted and [the] plaintiff lost in
whole or in part the economic benefits or advantage reasonably expected from the
relationship.” (North American Chemical Co. v. Superior Court (1997) 59 Cal. App. 4th
764, 786.) As with the intentional tort, the defendant’s conduct must be independently
wrongful apart from the interference itself. (Lange v. TIG Ins. Co. (1998) 68 Cal. App. 4th
1179, 1187.)
10.
Here, Primex alleged the Paramount II defendants “interfered with the business
relationship between [Primex] and Chaparral and the prospective economic advantage
that such relationship afforded [Primex] by causing Chaparral to sever its business
relationship with Primex and to enter into a conflicting three-year contract with Cal
Pure.” The interfering conduct allegedly occurred in the spring and summer of 2007,
when the Paramount II defendants began enticing Chaparral and other growers to sell
their crops to Paramount by offering to sell irrigation water in exchange for long-term
contracts with Paramount. The economic harm or damage to Primex allegedly caused by
the interference was the loss of Chaparral’s processing business.
The evidence at trial showed that Amin heard in the spring of 2007 about
Paramount offering water to growers, he learned in early August 2007 that Chaparral was
not going to deliver its crop to Primex, and Primex sued Chaparral for breach of contract
and Cal Pure for interference with contract and economic advantage on August 31, 2007.
Thus, by August 31, 2007, Primex was sufficiently certain that it was not going to receive
Chaparral’s 2007 pistachio crop due to wrongful conduct by a Paramount I defendant to
file a lawsuit. Chaparral’s 2007 crop ultimately was not delivered to Primex, but was
delivered to Cal Pure.
From the undisputed evidence and Primex’s own allegations, the alleged tortious
conduct (luring away Chaparral’s processing business) and resulting harm (loss of
Chaparral’s 2007 pistachio crop) occurred by August 31, 2007, when Primex commenced
the Chaparral case. Primex’s current claims for intentional and negligent interference
with prospective economic advantage accrued by that date as they were “‘complete with
all of [their] elements.’” (Fox, supra, 35 Cal.4th at p. 806.) The current lawsuit was filed
on March 29, 2010, outside the two-year statute of limitations. Accordingly, it appears
that Primex’s claims were barred by the statute of limitations and the motion for directed
verdict was properly granted.
11.
Primex, however, contends their claims were timely because they did not accrue
until a later time—either when Chaparral received water from defendant WMWC or
when Primex learned that a “mutual benefit water company” was the source of the water
being offered to entice growers. We consider each of Primex’s contentions.
III. Conspiracy allegations
Primex’s first contention is that the trial court erred in granting the motion for
judgment on the pleadings because the conspiracy allegations were not barred by the
agent’s immunity rule. This claimed error, in turn, affected Primex’s ability to respond to
the statute-of-limitations affirmative defense. Without the conspiracy allegations, Primex
could not invoke the last overt act doctrine to prove that its claim for intentional
interference with prospective economic advantage was timely. (See Wyatt v. Union
Mortgage Co. (1979) 24 Cal. 3d 773, 786 (Wyatt).)
A. Civil conspiracy
“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on
persons who, although not actually committing a tort themselves, share with the
immediate tortfeasors a common plan or design in its perpetration. [Citation.] By
participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the
torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way, a
coconspirator incurs tort liability co-equal with the immediate tortfeasors.” (Applied
Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 510–511 (Applied
Equipment).)
“Standing alone, a conspiracy does no harm and engenders no tort liability. It
must be activated by the commission of an actual tort.” (Applied Equipment, supra, 7
Cal.4th at p. 511.) “‘[I]t is the acts done and not the conspiracy to do them which should
be regarded as the essence of the civil action.’ [Citation.]” (Ibid.)
12.
Primex alleged the Paramount II defendants engaged in a civil conspiracy to
interfere with prospective economic advantage by taking away the processing business
Primex otherwise would have received from Chaparral. Primex alleged:
“In doing the things alleged herein, Defendants, and each of them,
acted in furtherance of their joint civil conspiracy to commit the tort of
intentionally interfering with the prospective economic advantage between
[Primex] and its grower, Chaparral. As alleged, the conduct of each of the
conspirators constituted a breach of their own individual duties not to
engage in intentional interference with prospective economic advantage and
each conspirator engaged in independent wrongful conduct (a necessary
element of that tort) by selling irrigation water above cost to a non-member
entity … and by aiding and abetting WMWC, a public utility, to violate the
Public Utilities Code and public utilities rules and regulations .… The goal
of said civil conspiracy was ultimately achieved—Defendants caused
Chaparral to switch its processing business from [Primex] to Cal Pure
starting in September 2007 and continuing through the present.” (Boldface
& fn. omitted.)
B. Agent’s immunity rule
In granting defendants’ motion for judgment on the pleadings as to the civil
conspiracy allegations, the trial court relied on the agent’s immunity rule. As described
by the California Supreme Court in Applied Equipment, this rule provides that “duly
acting agents and employees cannot be held liable for conspiring with their own
principals (the ‘agent’s immunity rule’).” (Applied Equipment, supra, 7 Cal.4th at
p. 512.) The court explained the rule further in footnote 4:
“The agent’s immunity rule emanates from a … holding in Wise [v.
Southern Pacific Co. (1963) 223 Cal. App. 2d 50, 72] that: ‘Agents and
employees of a corporation cannot conspire with their corporate principal
or employer where they act in their official capacities on behalf of the
corporation and not as individuals for their individual advantage.’
[Citation.] The rule ‘derives from the principle that ordinarily corporate
agents and employees acting for or on behalf of the corporation cannot be
held liable for inducing a breach of the corporation’s contract since being in
a confidential relationship to the corporation their action in this respect is
privileged.’ [Citation.] We have endorsed and applied the agent’s
immunity rule as expressed in Wise [citations]. Nothing in this decision is
13.
intended to abrogate or impair the agent’s immunity rule.” (Applied
Equipment, supra, 7 Cal.4th at p. 512, fn. 4.)
Here, Primex alleged: “For the purposes of the facts alleged in this Complaint,
[Primex] is informed and believes, and thereon alleges that WMWC, Roll and Paramount
Farming are, and have been, at all relevant times, agents, instrumentalities, and joint
venturers of each other and have been, at all relevant times, acting in concert with each
other.” (Italics added.) Further, Primex alleged that defendants Roll and Paramount
Farms “engaged in independent wrongful acts as agents of WMWC, as specifically
proscribed by Public Utilities Code §§ 2110 and 2112.” (Italics added, boldface omitted.)
As to this latter allegation, the court observed, “this is no ‘stray’ allegation, because it is
necessary for [Primex’s] theory that Roll and Paramount, as corporate ‘agents’ violated
Public Utilities Code §§ 2110 and 2112.”6
6 Public Utilities Code section 2110 provides: “Every public utility and every officer,
agent, or employee of any public utility, who violates or fails to comply with, or who procures,
aids, or abets any violation by any public utility of any provision of the California Constitution
or of this part, or who fails to comply with any part of any order, decision, rule, direction,
demand, or requirement of the commission, or who procures, aids, or abets any public utility in
the violation or noncompliance in a case in which a penalty has not otherwise been provided, is
guilty of a misdemeanor and is punishable by a fine not exceeding five thousand dollars
($5,000), or by imprisonment in a county jail not exceeding one year, or by both fine and
imprisonment.” (Italics added.)
This statute applies only to public utilities and officers, agents, and employees of public
utilities. Accordingly, the trial court was correct to observe that an allegation of agency
relationship (or officer status, employment, or that the defendant is a public utility) would be
necessary to plead a violation of this statute.
Public Utilities Code section 2112, on the other hand, provides: “Every person who,
either individually, or acting as an officer, agent, or employee of a corporation other than a
public utility, violates any provision of this part, or fails to comply with any part of any order,
decision, rule, direction, demand, or requirement of the commission, or who procures, aids, or
abets any public utility in such violation or non-compliance, in a case in which a penalty has not
otherwise been provided for such person, is guilty of a misdemeanor, and is punishable by a fine
not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding
one year, or by both such fine and imprisonment.” (Italics added.)
Since this statute applies to persons who act individually to procure or aid or abet a
Public Utilities Code violation, it appears that it is not necessary to allege an agency or other
relationship to a public utility in order to plead a violation of this statute.
14.
“‘Agents … cannot conspire with their corporate principal … where they act in
their official capacities on behalf of the corporation and not as individuals for their
individual advantage.’ [Citation.]” (Applied Equipment, supra, 7 Cal.4th at p. 512,
fn. 4.) Given Primex’s allegations that defendants Roll and Paramount Farming were
acting as agents of defendant WMWC when they committed their alleged misconduct,
the agent’s immunity rule means that defendants Roll and Paramount Farming could not
conspire with their principal, WMWC.
Primex disagrees with this analysis of the agent’s immunity rule. It asserts that
footnote 8 of Applied Equipment, supra, 7 Cal.4th at page 520, established a broad
exception to the agent’s immunity rule whenever the agent or employee owes a separate
duty to the plaintiff and this exception applied in this case. Defendants respond that
footnote 8 had nothing to do with the agent’s immunity rule and, therefore, did not create
or recognize an exception to the rule.
Primex also argues the agent’s immunity rule should not apply in this case because
defendants Roll and Paramount Farming were acting “‘as individuals for their individual
advantage’” and not merely as agents of defendant WMWC. (See Applied Equipment,
supra, 7 Cal.4th at p. 512, fn. 4.) Primex cites its allegations that defendant Roll was
“either the holding company or the parent company of various ‘Paramount-related’
farming entities, including all of the entities that comprise the members of Defendant …
WMWC” and that defendant Paramount Farming was a member of WMWC.7
Defendants take the position that Primex’s allegations are insufficient to preclude
application of the agent’s immunity rule. They argue Primex’s allegations “fall[] notably
short of pleading that any of the alleged ‘profits’ or monies made through the alleged
interference were actually earned by any of the agent-defendants for their ‘own personal
7 We note that Primex does not argue that the agent’s immunity rule applies only to
individuals and not to corporate entities.
15.
advantage or gain’ outside of the agency relationship rather than simply on behalf and for
the benefit of their principal.”
However, we need not decide whether Applied Equipment announced a broad
exception to the agent’s immunity rule or whether Primex’s complaint sufficiently
alleged the Paramount II defendants were acting for their individual advantage. This is
because even if the conspiracy allegations had survived the motion for judgment on the
pleadings, the allegations would not have affected the motion for directed verdict on the
statute-of-limitations affirmative defense.
C. Last overt act doctrine and the primary purpose of the alleged conspiracy
As we have mentioned, Primex is trying to revive its conspiracy allegations in
order to argue that its claims were timely under the “last overt act” doctrine. Under this
doctrine, “when a civil conspiracy is properly alleged and proved, the statute of
limitations does not begin to run on any part of a plaintiff’s claims until the ‘last overt
act’ pursuant to the conspiracy has been completed.” (Wyatt, supra, 24 Cal.3d at p. 786.)
Primex contends that he should have been permitted to introduce evidence that the last
overt act in furtherance of the alleged conspiracy in this case occurred in November
2008. According to the operative complaint, the second installment of WMWC irrigation
water was delivered to Chaparral in November 2008. Primex alleged this water delivery
was made “pursuant to an agreement first negotiated between Bert Steir and a Chaparral
representative in the spring of 2007.” Steir was identified in the complaint as a vice
president and managing agent of defendant Roll.
Defendants respond that the conspiracy allegations would not have extended the
limitations period because the last overt act cannot occur after the object of the
conspiracy has been completed, and in this case, the alleged interference with Primex’s
business and contractual relationship with Chaparral occurred no later than 2007. We
agree.
16.
“‘[A]cts committed by conspirators subsequent to the completion of the crime
which is the primary object of a conspiracy cannot be deemed to be overt acts in
furtherance of that conspiracy. Consequently, upon successful attainment of the
substantive offense which is the primary object of the conspiracy, the period of the statute
of limitations for the conspiracy begins to run at the same time as for the substantive
offense itself.’” (State of California ex rel. Metz v. CCC Information Services, Inc.
(2007) 149 Cal. App. 4th 402, 419.)
Amin learned in early August 2007 that Chaparral was not going to deliver its crop
to Primex, and Primex sued Chaparral for breach of contract on August 31, 2007.
Certainly by the end of 2007, the object of the alleged conspiracy to interfere with
prospective economic advantage had been attained—Chaparral delivered its 2007
pistachio crop to Cal Pure rather than Primex. Since the goal of the conspiracy was
achieved by the end of 2007, acts that occurred after that are not considered overt acts in
furtherance of the conspiracy.
Primex’s reply is not persuasive. It argues that defendants “do not get to define
what the object of the conspiracy was when what is being contested on appeal is the Trial
Court’s granting of a motion for judgment on the pleadings.” We do not believe the
object of the alleged conspiracy is open to question. Conspiracy is not a cause of action;
it is a theory for imposing liability for an underlying substantive tort. (Applied
Equipment, supra, 7 Cal.4th at pp. 510–511.) The underlying tort in this case was
intentional interference with prospective economic advantage. Primex specifically
alleged, “The goal of said civil conspiracy was ultimately achieved—Defendants caused
Chaparral to switch its processing business from [Primex] to Cal Pure starting in
September 2007 and continuing through the present.” In addition, when arguing pretrial
evidentiary issues, Primex’s attorney told the court, “The object of the conspiracy was to
have Chaparral and growers leave their commitments to other [processors] and go to
Paramount .…” Primex cannot now seriously dispute that the object of the alleged
17.
conspiracy was interfering with its prospective economic advantage by taking away
Chaparral’s processing business, which was achieved when Primex lost Chaparral’s 2007
pistachio crop.
Primex also asserts “what makes the sale for profit of irrigation water by WMWC
to Chaparral unlawful is the delivery of such water at a price above cost. Thus, the object
of the conspiracy, i.e., what made the conspiracy unlawful in the first place, must include
delivery of the water which did not occur until the summer of 2008.” (Italics added,
underscoring omitted.) While Primex now takes the position that the only wrongful
conduct was the delivery of water in the summer of 2008, in its complaint, Primex
alleged that “offering to sell,” as well as “selling irrigation water for profit … violated the
law .…” (Italics added, underscoring omitted.) Further, it makes no sense to say that the
actual delivery of water in the summer of 2008 could have proximately caused Chaparral
to breach its contract with Primex in 2007. Under Primex’s theory of the case, it was the
offer to sell irrigation water made in the spring or summer of 2007 that interfered with
Primex’s prospective economic advantage “by causing Chaparral to sever its business
relationship with Primex and to enter into a conflicting three-year contract with Cal
Pure .…”
Having considered the conspiracy allegations and the evidence presented at trial
on the statute-of-limitations affirmative defense, we conclude the last overt act doctrine
could not apply to render Primex’s alleged tort claims timely. In other words, the
conspiracy allegations would not have changed the result on the motion for directed
verdict on defendants’ statute-of-limitations affirmative defense. As a result, even if we
assume the trial court erred in granting the judgment on the pleadings as to the conspiracy
allegations, Primex is not entitled to reversal. (See Mike Davidov Co. v. Issod (2000) 78
Cal. App. 4th 597, 606 [“A reversible error only exists when it is reasonably probable that
a result more favorable to the appealing party would have been reached in the absence of
that error.”].)
18.
IV. Delayed discovery
Primex next contends its tort claims were timely filed because the statute of
limitations was tolled until it discovered the facts supporting its claim for interference
with prospective economic advantage based on violations of the Public Utilities Code.
We disagree.
A. Discovery rule
Generally, a cause of action accrues and the statute of limitations begins to run
when the cause of action is complete with all of its elements. (Fox, supra, 35 Cal.4th at
p. 806.) However, “[a]n important exception to the general rule of accrual is the
‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff
discovers, or has reason to discover, the cause of action. [Citations.]” (Id. at p. 807.)
“A plaintiff has reason to discover a cause of action when he or she ‘has reason at
least to suspect a factual basis for its elements.’” (Fox, supra, 35 Cal.4th at p. 807,
quoting Norgart, supra, 21 Cal.4th at p. 398.) “Under the discovery rule, suspicion of
one or more of the elements of a cause of action, coupled with knowledge of any
remaining elements, will generally trigger the statute of limitations period.” (Ibid.) The
“‘elements’” of a cause of action refers to the “‘generic’” elements of wrongdoing,
causation, and harm. (Ibid.) The Supreme Court has explained: “In so using the term
‘elements,’ we do not take a hypertechnical approach to the application of the discovery
rule. Rather than examining whether the plaintiffs suspect facts supporting each specific
legal element of a particular cause of action, we look to whether the plaintiffs have reason
to at least suspect that a type of wrongdoing has injured them.” (Ibid.)
The fact that the plaintiff does not have reason to suspect a defendant’s identity,
however, does not delay the accrual of a cause of action. (Fox, supra, 35 Cal.4th at
p. 807.) Further, “plaintiffs are required to conduct a reasonable investigation after
becoming aware of an injury, and are charged with knowledge of the information that
would have been revealed by such an investigation.” (Id. at p. 808.)
19.
“[T]o rely on the discovery rule for delayed accrual of a cause of action, ‘[a]
plaintiff whose complaint shows on its face that his claim would be barred without the
benefit of the discovery rule must specifically plead facts to show (1) the time and
manner of discovery and (2) the inability to have made earlier discovery despite
reasonable diligence.’ [Citation.] In assessing the sufficiency of the allegations of
delayed discovery, the court places the burden on the plaintiff to ‘show diligence’;
‘conclusory allegations will not withstand demurrer.’ [Citation.]” (Fox, supra, 35
Cal.4th at p. 808.)
In Fox, the plaintiff filed a medical malpractice lawsuit after she had severe
complications following gastric bypass surgery. During discovery, the plaintiff learned
that a medical device used during surgery may have malfunctioned and caused her injury.
(Fox, supra, 35 Cal.4th at p. 802.) At the time of the plaintiff’s injury, a claim of
products liability was subject to a one-year statute of limitations. The plaintiff timely
filed her initial medical malpractice lawsuit, but she filed her first amended complaint
adding a cause of action for products liability against the manufacturer of the medical
device more than a year after her injury. (Id. at p. 809.)
The manufacturer demurred to the amended complaint, arguing that the products
liability claim was time-barred. In opposition, the plaintiff asserted she had no
knowledge that the surgery involved the use of the medical device at issue, a stapler, and
she also stated that she did not learn about the possibility of stapler malfunction until her
attorney deposed the defendant doctor. (Fox, supra, 35 Cal.4th at p. 805.) The trial court
sustained the demurrer without leave to amend. In doing so, the court relied on Bristol-
Myers Squibb Co. v. Superior Court (1995) 32 Cal. App. 4th 959, disapproved of in Fox at
pages 803 and 805. The Court of Appeal reversed the trial court’s order and instructed
the trial court to grant the plaintiff leave to amend her complaint to allege facts
explaining why she did not have reason to discover the factual basis of her products
liability claim earlier. (Fox, supra, at p. 806.) “In so ruling, the Court of Appeal held
20.
that Bristol-Myers Squibb’s ‘bright-line rule of imputed simultaneous discovery of causes
of action’ did not apply.” (Ibid.)
The Supreme Court affirmed the appellate court’s decision, agreeing that the
plaintiff must be allowed to amend her complaint to plead facts supporting her claim that
the discovery rule should apply in determining the timeliness of her products liability
claim. (Fox, supra, 35 Cal.4th at p. 811.) The court noted the difference between a
plaintiff’s ignorance of the identity of a defendant and her ignorance of a generic element
of a cause of action: “Although the identity of the manufacturer-wrongdoer is not an
essential element of a products liability cause of action, and therefore ignorance of its
identity will not delay the running of the statute of limitations [citation], a plaintiff’s
ignorance of wrongdoing involving a product’s defect will usually delay accrual because
such wrongdoing is essential to that cause of action.” (Id. at p. 813.) The court then
held, “[I]f a plaintiff’s reasonable and diligent investigation discloses only one kind of
wrongdoing when the injury was actually caused by tortious conduct of a wholly
different sort, the discovery rule postpones accrual of the statute of limitations on the
newly discovered claim.” (Ibid.)
The Supreme Court distinguished the plaintiff’s allegations in Fox from the facts
of previous cases. For example, in Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, 1114
(Jolly), “[t]he undisputed evidence … showed that, as of 1972, [the plaintiff] at least
suspected that her condition was a result of her mother’s ingestion of [the synthetic drug
estrogen diethylstilbestrol (DES)].” (Fox, supra, 35 Cal.4th at p. 813.) Consequently,
the Supreme Court “held that because the plaintiff at least suspected that DES was the
cause of her injuries as of 1972, the statute of limitations began to run at that time, even
though [the plaintiff] was unable to establish the identity of the manufacturer of the DES
ingested by her mother.” (Ibid.) In Norgart, supra, 21 Cal.4th at page 390, the daughter
of the plaintiffs committed suicide by intentionally taking an overdose of prescription
drugs, including Halcion. The high court “upheld the superior court’s grant of summary
21.
judgment against the plaintiffs, reversing the Court of Appeal, and finding that the
plaintiffs had reason soon after their daughter’s death to discover their causes of action
for wrongful death against [defendant] Upjohn for manufacturing and distributing
Halcion.” (Fox, supra, 35 Cal.4th at p. 814.) The court “found that there was no triable
issue of material fact and that Upjohn was entitled to judgment on the statute of
limitations defense because the plaintiffs had reason to discover their cause of action
against Upjohn soon after their daughter’s death when they learned at that time of her
depression and suicide by taking an overdose of prescription drugs, including Halcion.”
(Ibid.) “In both Jolly and Norgart, the court emphasized that the plaintiffs had ample
reason to suspect the basis of their claims.” (Ibid.)
In contrast, the allegations in Fox showed that “a diligent plaintiff’s investigation
may only disclose an action for one type of tort (e.g., medical malpractice) and facts
supporting an entirely different type of tort action (e.g., products liability) may, through
no fault of the plaintiff, only come to light at a later date.” (Fox, supra, 35 Cal.4th at
p. 814.) “Although both [medical malpractice and products liability] claims seek to
redress the same physical injury to the plaintiff, they are based on two distinct types of
wrongdoing and should be treated separately in that regard.” (Id. at pp. 814–815, italics
added.) Accordingly, not all claims arising from an injury necessarily accrue
simultaneously; it is possible under the discovery rule that different claims arising from a
single injury may accrue at different times if the claims are “based upon distinct types of
wrongdoing” and the plaintiff acted diligently. (Id. at p. 815.)
B. Analysis
In the operative complaint, Primex alleged:
“[Primex] did not discover that Defendants were selling irrigation
water to pistachio growers for profit and that, in doing so, Defendants were
violating various provisions in the Public Utilities Code, including, but not
limited to, §§ 532, 2701, 2702, 2705, and 2712, until the deposition of Scott
Hamilton, the person most knowledgeable at WMWC, was taken on
February 18 and February 24, 2010 in [the Chaparral case]. [Primex] …
22.
was not able to discover facts concerning Defendants’ profiteering and their
violation of various provisions in the Public Utilities Code before such
dates because Defendants’ related entities … aggressively avoided
submitting to depositions and written discovery on ‘water issues’ for over
seven months and Defendants claim that such ‘water information’
constitutes carefully guarded trade secrets. Thus, despite [Primex’s]
diligent efforts, Defendants’ unlawful behavior in profiteering on irrigation
water banked by WMWC and Paramount Farming—in violation of the
Public Utilities Code—could not have been discovered before the Scott
Hamilton deposition finally took place on February 18 and 24, 2010.”
In its order granting defendants’ motion for directed verdict, the trial court rejected
Primex’s discovery rule argument, explaining:
“There is no substantial evidence supporting the view that Mr. Amin did
not know, or at least suspect, before August 31, 2007, that water was the
instrumentality that was used by Paramount to cause Chaparral to sever its
relationship with [Primex].
“The theory advanced in [Primex’s] third amended complaint and at
trial which it claims supports a further delay in the accrual of its cause of
action against defendants is that [Primex] could not have reasonably
learned facts supporting its allegation that defendants’ conduct violated the
Public Utilities Code until February, 2010 .… However, whether or not
[Primex] knew or suspected the specific statute allegedly violated by
defendants in August, 2007, Mr. Amin admitted at trial that he believed
offering water for pistachios was ‘wrong’ and that it was ‘unfair
competition.’ Thus, [Primex] knew, or suspected, before the end of
August, 2007, that defendants’ conduct was ‘wrongful by some legal
measure other than the fact of interference itself.’ (Korea Supply[, supra,]
29 Cal.4th [at pp. 1153–1154].) Put another way, the undisputed evidence
shows that by the end of August, 2007, [Primex] knew, or at least
suspected, that a ‘type of wrongdoing [had] injured [it.]’ (Fox, supra, 35
Cal.4th at [p.] 807.)
“The court can find no support for the argument that accrual should
be delayed until [Primex] discovered or reasonably should have discovered
that defendants[’] alleged offer of water to Chaparral allegedly violated the
Public Utilities Code. The cases that have been located on the subject
require only knowledge or suspicion of the factual, not the legal basis for a
claim. ‘[T]he plaintiff discovers the cause of action when he at least
suspects a factual basis, as opposed to a legal theory, for its elements, even
if he lacks knowledge thereof—when, simply put, he at least “suspects …
that someone had done something wrong” to him …, “wrong” being used,
not in any technical sense, but rather in accordance with its “lay
23.
understanding” [citations]. He has reason to discover the cause of action
when he has reason at least to suspect a factual basis for its elements.
(Citation.)’ (Norgart, supra, [21 Cal.4th] at pp. 397–[398, fn. omitted].)”
We agree with the trial court’s reasoning. “[W]e do not take a hypertechnical
approach to the application of the discovery rule” but rather “look to whether the
plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.”
(Fox, supra, 35 Cal.4th at p. 807.) Here, Amin suspected in the spring of 2007 that
Paramount was offering irrigation water to growers to try to sign them up for sales
contracts, and he thought this behavior by Paramount was “wrong.” In addition, Primex
asserted a claim of “Interference With Economic Advantage” against Cal Pure in its
original complaint in the Chaparral case filed on August 31, 2007. From this evidence, it
is clear that Primex suspected a “type of wrongdoing” (ibid.) had injured it by August 31,
2007, and the type of wrongdoing Primex suspected was interference with prospective
economic advantage. This case is not like Fox, where the plaintiff’s diligent
investigation revealed one type of tort (medical malpractice), but the plaintiff only
discovered facts supporting “an entirely different type of tort” (products liability) at a
later time. (Id. at p. 814.) Here, there was only one type of tort, interference with
prospective economic advantage.
Primex argues that it could not have known a factual basis for its current claims,
which are based on alleged violations of the Public Utilities Code, until it learned that
defendant WMWC, a mutual water company, was the source of the water being offered
by Paramount. Primex’s theory is that defendant WMWC violated the Public Utilities
Code by selling water to a nonmember for a price above cost. We are not convinced.
Again, Amin thought that offering water for sale as an inducement to switch processors
was “wrong” when he heard about it in the spring and summer of 2007. When this
alleged wrongdoing resulted in harm to Primex through the loss of Chaparral’s 2007
pistachio crop, the claims for interference with prospective economic advantage accrued.
Accrual of the claims did not require Primex to identify all specific facts and legal
24.
theories to support its suspicion of wrongdoing. “[T]he limitations period begins once
the plaintiff ‘“‘has notice or information of circumstances to put a reasonable person on
inquiry ....’”’ [Citation.] A plaintiff need not be aware of the specific ‘facts’ necessary to
establish the claim; that is a process contemplated by pretrial discovery. 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.” (Jolly,
supra, 44 Cal.3d at pp. 1110–1111.)
Ignorance of the identity of a defendant does not postpone accrual of a claim.
(Fox, supra, 35 Cal.4th at p. 807.) The Paramount II defendants point out that Primex
could have filed a timely suit against Doe defendants and later used the relation-back
doctrine when it learned the actual identities of these defendants. (See Jolly, supra, 44
Cal.3d at p. 1118.) Furthermore, Primex’s suspicion that Paramount was offering
irrigation water for sale—regardless of the source of the water—put Primex on notice of
potential issues related to public utilities. Any person or corporation that offers irrigation
water for sale to a number of different growers in different locations is likely to be
subject to regulation under the Public Utilities Code.8
We also reject Primex’s argument that the discovery rule should apply because
defendants and Chaparral representatives “actively obscured the truth from Primex by
playing dumb … and by false answers to interrogatories propounded in the Chaparral
lawsuit.” These allegations do not change the fact that, by the end of August 2007, Amin
8 Public utilities subject to regulation are broadly defined. “Any person, firm, or
corporation, their lessees, trustees, receivers or trustees appointed by any court whatsoever,
owning, controlling, operating, or managing any water system within this State, who sells, leases,
rents, or delivers water to any person, firm, corporation, municipality, or any other political
subdivision of the State, whether under contract or otherwise, is a public utility, and is subject to
the provisions of Part 1 of Division 1 [Pub. Util. Code, § 201 et seq.] and to the jurisdiction,
control, and regulation of the commission, except as otherwise provided in this chapter.” (Pub.
Util. Code, § 2701, italics added.)
25.
believed that interference by Paramount (in offering water for sale) had caused Chaparral
to breach its contract with Primex. In sum, the discovery rule does not apply in this case
to postpone the accrual of Primex’s claims.
V. Accrual of claim
Finally, Primex contends its claims did not accrue until the summer of 2008,
because that is when the unlawful water transfer to Chaparral occurred. Primex’s claims
of interference with prospective advantage required it to show that defendants interfered
with Primex’s economic relationship with Chaparral in a way that was independently
wrongful. (See Korea Supply, supra, 29 Cal.4th at p. 1154.) Primex argues: “Given the
independent wrongful act element for a claim for interference with the prospective
economic advantage, ‘the time when the cause of action is complete’ [quoting Norgart,
supra, 21 Cal.4th at p. 397] did not occur until the summer of 2008, when Chaparral took
delivery of water that was sold by WMWC at a profit in violation of the Public Utilities
Code. Stated in other terms, the wrongfulness of Defendants’ conduct was not unlawful
until the summer of 2008 when water was sold by a mutual benefit water company (and
its agents) to Chaparral for a profit.”
This argument is unavailing. As we observed above in our discussion of the
conspiracy allegations, according to Primex’s own allegations, it was the offer to sell
irrigation water to Chaparral by the Paramount II defendants in exchange for a sales
contract that interfered with Primex’s prospective economic advantage and caused
Chaparral to sever its business relationship with Primex. The actual delivery of water in
2008 could not have been the proximate cause of Chaparral breaching its contract in
2007.
“The tort of intentional interference with prospective economic advantage is not
intended to punish individuals or commercial entities for their choice of commercial
relationships or their pursuit of commercial objectives, unless their interference amounts to
independently actionable conduct.” (Korea Supply, supra, 29 Cal.4th at pp. 1158–1159,
26.
italics added.) “[I]nterference with prospective economic advantage is not tortious in and
of itself”; it is the additional requirement that the interference is independently wrongful
that “distinguishes lawful competitive behavior from tortious interference.” (Id. at
p. 1159.) Thus, to prove its claims, Primex was required to prove that defendants’
interfering conduct of offering to sell irrigation water to Chaparral in exchange for a sales
contract was wrongful apart from the interference itself.9 It would not be enough for
Primex to show that defendants engaged in interfering conduct that resulted in economic
harm to Primex and later engaged in unlawful conduct. (See LiMandri v. Judkins (1997)
52 Cal. App. 4th 326, 342 [alleged misappropriation of name did not qualify as
“‘independently wrongful’” conduct “because while it may have been independently
tortious, it was not the act that constituted the interference with [the plaintiff’s] prospective
advantage”].) Primex had to prove the interfering conduct itself was unlawful. Since the
delivery of water to Chaparral in 2008 was not the interfering conduct, the lawfulness of
that delivery was not relevant to proving Primex’s claims for interference with prospective
economic advantage. It follows that the water delivery was not relevant the accrual of the
claims either.
Having rejected all of Primex’s arguments for postponing the accrual of its claims
for interference with prospective economic advantage, we affirm the trial court’s order
granting defendants’ motion for directed verdict on the ground the claims were barred by
the statute of limitations. We need not address defendants’ alternative grounds for
affirming the judgment.
9 “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some
constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Korea
Supply, supra, 29 Cal.4th at p. 1159, fn. omitted.)
27.
DISPOSITION
Primex’s motion to augment the record is granted. The judgment is affirmed.
Defendants are awarded costs on appeal.
___________________________
Kane, J.
WE CONCUR
______________________
Cornell, Acting P.J.
______________________
Gomes, J.
28.