MGA Entertainment v. Mattel ( 2019 )

Filed 10/29/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MGA ENTERTAINMENT, INC., B289709
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC532708)
v.
MATTEL, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Carolyn B. Kuhl, Judge. Affirmed.
Stris & Maher, Peter K. Stris, Kenneth J. Halpern,
Douglas D. Geyser, John Stokes; and Benjamin C. Johnson for
Plaintiff and Appellant.
Quinn Emanuel Urquhart & Sullivan, John B. Quinn,
Michael T. Zeller, B. Dylan Proctor, Daniel C. Posner and
Kathleen M. Sullivan for Defendant and Respondent.
__________________________
SUMMARY
The trial court granted summary judgment on the
complaint because it was barred by the statute of limitation. We
affirm.
Litigation between plaintiff MGA Entertainment, Inc. and
defendant Mattel, Inc. began in the federal courts in 2004, with
disputes over ownership of the Bratz line of dolls and claims of
copyright infringement. In that litigation, in August 2007, MGA
served a discovery request for documents relating to Mattel’s
efforts to obtain MGA’s trade secrets and information about
unreleased products and product development, including by
Mattel trying to gain access to MGA showrooms or toy fair
displays on false pretenses.
Ten days after serving this document request, MGA
asserted a factually detailed affirmative defense in the federal
litigation, alleging Mattel’s unclean hands. MGA alleged Mattel
engaged in all sorts of unseemly conduct, including “monitoring,
‘spying on’ or gaining knowledge of MGA’s trade secrets, non-
public information, nonpublic activities, unreleased products, and
product development,” and “gaining access, or attempts to gain
access, to MGA showrooms, Plan-o-Grams, merchandising
displays, Toy Fair displays on false pretenses.”
Three years and three days later, MGA asserted a
“counterclaim-in-reply” in the federal litigation, alleging a cause
of action for misappropriation of trade secrets under the
California Uniform Trade Secrets Act (Civ. Code, § 3426 et seq.).
MGA claimed Mattel employees used fake credentials and
misrepresented themselves as retailers to gain access to MGA
displays of as-yet-unmarketed products at private showrooms at
industry toy fairs. Mattel raised the statute of limitation defense
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(three years), but the district court found MGA’s claim was a
compulsory counterclaim-in-reply and related back to Mattel’s
January 12, 2007 filing of its answer and counterclaims. As we
explain below, MGA’s reliance on this ruling was misplaced.
In January 2011, MGA obtained a verdict on its trade
secret misappropriation claims of more than $80 million, and the
district court awarded an equal amount in punitive damages for
the “willful and malicious” misappropriation. Unfortunately for
MGA, the Ninth Circuit reversed the district court’s ruling that
MGA’s claim was a compulsory counterclaim-in-reply. The Ninth
Circuit vacated the verdict and directed the district court to
dismiss MGA’s trade secret claim without prejudice. (Mattel, Inc.
v. MGA Entertainment, Inc. (9th Cir. 2013) 705 F.3d 1108, 1110-
1111.)
MGA then filed its complaint for misappropriation of trade
secrets in the superior court. Mattel filed a motion for summary
judgment, contending the three-year statute of limitation had run
by the time MGA filed its trade secret claim in federal court on
August 16, 2010.
We agree with the trial court that, under California law,
the same suspicions that allowed MGA to request discovery and
plead the unclean hands defense in the federal court in 2007 were
sufficient to trigger the statute of limitation.
FACTS
We have already described the crux of the case. We discuss
additional facts below in light of the California rule that the
statute of limitation begins to run when the plaintiff has reason
to suspect an injury and some wrongful cause, unless the plaintiff
proves a reasonable investigation at that time would not have
revealed a factual basis for the claim.
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1. The Federal Litigation
Mattel filed an unopposed request for judicial notice of
various documents filed in the federal litigation, all of which
appear in the parties’ respective appendices. We grant the
motion.
MGA contends that, despite its assertions in August 2007,
both in its unclean hands defense and its discovery request in
federal court, the statute of limitation did not begin to run until
almost three years later, on July 12, 2010. On that day,
deposition testimony from Salvador Villasenor, a former Mattel
employee (until 2006) who oversaw and directed Mattel’s “market
intelligence” activities, “blew the case open.”
Mr. Villasenor testified that, beginning in 1992, Mattel
employees had obtained catalogues of products made by Mattel’s
competitors by visiting their private showrooms at toy fairs,
gaining entry by creating fictitious business cards and presenting
themselves as toy store owners. Mr. Villasenor engaged in those
activities himself for six or seven years, beginning in 1999, with
the knowledge of company executives, and he identified others
who had also done so for Mattel (although he denied he had done
so in any MGA showrooms).
Further, MGA points out that although it requested
documents in November 2006 relating to whether Mattel had
access to any displays or showrooms containing any of MGA’s
Bratz lines, Mattel did not produce relevant documents until
early 2010, and the documents produced then were silent about
how Mattel acquired MGA information. (Mattel claims such
documents were irrelevant because at the time there was no
trade secret claim in the litigation.)
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Only after the Villasenor deposition did Mattel begin to
produce “smoking gun” documents, including Mattel’s toy fair
reports, a guide directing employees on how to create false
identities and businesses to gain access to competitors’
showrooms, a December 2005 e-mail from Mr. Villasenor
expressing fear that his actions could expose him to personal
criminal liability, and so on.
As already noted, just a month or so after the Villasenor
deposition, MGA filed its trade secret misappropriation claim in
the federal litigation. Before the Villasenor deposition, MGA
alleged, several Mattel executives who were aware of the illegal
activities “gave misleading or untruthful testimony in order to
suppress it and keep it from coming out in this [the federal]
litigation.”
The jury in the federal litigation found that Mattel had
misappropriated 26 trade secrets owned by MGA (of the
114 trade secrets MGA claimed Mattel had misappropriated from
private toy fair showrooms). (See Mattel, Inc. v. MGA
Entertainment, Inc. (C.D.Cal. Aug. 4, 2011, No. CV 04-9049 DOC
(RNBx)) 2011 U.S.Dist.Lexis 85928, pp. 16-18.) At the trial,
several of Mattel’s senior executives acknowledged the conduct of
Mattel’s employees was improper and had been approved at
senior levels of the corporate hierarchy. (Id. at p. 47.)
2. This Case
The reversal of the federal jury’s verdict brings us to this
lawsuit and Mattel’s motion for summary judgment. None of the
facts we have related so far was disputed. The parties agree the
relevant dates are MGA’s August 3, 2007 discovery request; its
August 13, 2007 unclean hands defense; and its August 16, 2010
filing of the trade secret misappropriation claim in federal court.
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(The parties agreed, for purposes of the summary judgment
motion, that the statute of limitation was tolled as of August 16,
2010.)
a. Mattel’s evidence
Mattel presented evidence that MGA had reason to suspect
trade secret misappropriation more than three years before its
August 16, 2010 federal “counterclaim-in-reply” alleging
misappropriation of trade secrets under California law. In
addition to the explicit language in MGA’s discovery request and
unclean hands defense, we discuss below Mattel’s evidence that is
pertinent to our analysis.
Mattel cited deposition testimony from Paula Garcia, an
MGA executive who had previously worked at Mattel.
Ms. Garcia testified that she had seen Mr. Villasenor at the front
of an MGA showroom at a toy fair in New York. She told Isaac
Larian, MGA’s chief executive officer, that she had seen
Mr. Villasenor, and that she believed he was a Mattel employee.
She did not remember the year, but she did not believe it
happened in 2006 or thereafter. Other evidence established it
was before 2006. Ms. Garcia responded affirmatively when asked
whether “sometime later, years later [after the showroom
incident], you saw Mr. Villasenor on the MGA campus . . .
interviewing for a job with MGA; correct?” (Italics added.) It was
undisputed that Mr. Villasenor interviewed with MGA in late
2006 or early 2007.
Ms. Garcia was “definitely” surprised to see Mr. Villasenor,
and that is why she told Mr. Larian about it. She was concerned
because it appeared that a Mattel employee had obtained access
to an MGA showroom. She thought it was “wrong for
[Mr. Villasenor] to be there” if he was a Mattel employee, and she
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believed he was a Mattel employee. When she was asked, “So
you believe that Sal Villasenor, a Mattel employee, had seen
unreleased product, MGA product, that you considered to be
highly confidential; is that correct?” Ms. Garcia answered, “Yes.”
It is undisputed that Mr. Larian “reported to MGA’s lawyers the
information Ms. Garcia gave him.” Also, in discovery MGA
admitted “that Paula Garcia once recognized Sal Villasenor in an
MGA showroom prior to August 3, 2007.”
In November 2003, Mr. Larian responded to a question
from a reporter about why MGA had declined to participate in a
fall 2003 toy fair, instead opting to do his own previews.
Mr. Larian wrote, among other reasons: “we have found that at
these shows the [imitators] (including the top toy companies)
attend and get into your showroom pretending to be a member of
the press or a ‘customer’ to learn what you are doing to knock you
off earlier. We wanted to delay that a bit.”
MGA’s own verified interrogatory responses stated that,
“[o]n or about August 29, 2003, Isaac Larian expressed concern
that Mattel might obtain confidential information about
unreleased MGA products previewed in MGA’s showroom.” On
February 10 and 11, 2004, Mr. Larian “considered the possibility
that Mattel might obtain confidential information about
unreleased MGA products at the 2004 New York Toy Fair.” On
January 22, 2007, Mr. Larian “considered the possibility that
Mattel might obtain confidential information about unreleased
MGA products at the 2007 Funtastic Toy Fair.” On January 31,
2007, Mr. Larian “considered the possibility that Mattel might
obtain confidential information about unreleased MGA products
at the 2007 Mexico Toy Fair.”
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b. MGA’s response
MGA observed the evidence it cited in its verified
interrogatory responses as the factual basis for its unclean hands
defense (Mr. Larian’s expressed concerns, recited just above)
“does not state that Mattel was using fake identification to enter
MGA showrooms.” MGA contends it “considered multiple
possibilities as to whether and how Mattel might be gaining
access to MGA’s product information, including access through
legal means.”
The bulk of the evidence MGA offered was directed to its
claim that Mattel’s fraudulent concealment of its wrongdoing
tolled the statute of limitation. MGA asserted that in 2007,
Mattel improperly withheld documents during discovery, not
producing them until 2010, and that from 2008 to 2010, “Mattel’s
executives lied under oath during depositions.” MGA discovered
the lies only after the Villasenor deposition in July 2010, when
Mattel finally produced documents, and at the later trial, as
noted above. MGA concluded that, as a result of Mattel’s
fraudulent concealment, “MGA was unable to discover the facts
until September 2010.”
DISCUSSION
Our review of the trial court’s ruling on summary judgment
is de novo.
An action for misappropriation of trade secrets “must be
brought within three years after the misappropriation is
discovered or by the exercise of reasonable diligence should have
been discovered.” (Civ. Code, § 3426.6.)
The California rule on delayed discovery of a cause of action
is the statute of limitation begins to run “when the plaintiff has
reason to suspect an injury and some wrongful cause . . . .” (Fox
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v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 803 (Fox).)
“A plaintiff need not be aware of the specific ‘facts’ necessary to
establish the claim; that is a process contemplated by pretrial
discovery. . . . 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 v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, 1111
(Jolly).)
Finally, it is firmly established “ ‘that the defendant’s fraud
in concealing a cause of action against him tolls the applicable
statute of limitations, but only for that period during which the
claim is undiscovered by plaintiff or until such time as plaintiff,
by the exercise of reasonable diligence, should have discovered
it.’ ” (Bernson v. Browning-Ferris Industries (1994) 7 Cal. 4th 926,
931 (Bernson).) As the court observed in Rita M. v. Roman
Catholic Archbishop (1986) 187 Cal. App. 3d 1453, 1460 (Rita M.),
the doctrine of fraudulent concealment for tolling the statute of
limitation “ ‘does not come into play, whatever the lengths to
which a defendant has gone to conceal the wrongs, if a plaintiff is
on notice of a potential claim.’ ”
1. MGA’s Contention It Did Not Discover Mattel’s
Misappropriation of 114 Trade Secrets Until 2010
MGA takes two approaches to its first argument on appeal.
In its opening brief, MGA contends the trial court’s
“fundamental error was failing to recognize that MGA did not
discover all of the misappropriations at issue, simply because it
may have discovered some of them.” MGA continues: “[E]ven if
MGA learned that Mattel had infiltrated a single toy fair on one
occasion, it was improper to conclude . . . that this necessarily put
MGA on notice that different trade secrets displayed at different
toy fairs in different years were misappropriated.” MGA’s second
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approach, reemphasized in its reply brief, is that “MGA did not
discover a single one of Mattel’s 114 misappropriations until
2010,” when Mattel turned over toy fair reports from 2000-2004
“rife with confidential competitive information.”
Neither of these approaches survives scrutiny, because they
both rely on misstatement or misapprehension of California law
on the accrual of the statute of limitation.
a. The “114 distinct ‘injuries’ ” contention
MGA did not present the trial court with its theory that
each of the 114 alleged trade secret misappropriations was a
distinct claim, so that discovery of one misappropriation (say, “at
the New York Toy Fair in 2000”) would not “put MGA on notice”
of a misappropriation “at the Hong Kong Toy Fair in 2004.”
Mattel contends MGA’s new theory is forfeited. We will forego
consideration of the forfeiture issue, as we find it clear that
MGA’s theory of distinct injuries has no application in this case.
MGA asserts the statute of limitation “runs separately from
the discovery of each distinct injury,” and that Fox stands for the
proposition that claims “involving distinct injuries accrue at the
time the plaintiff discovers each of those distinct injuries.” Fox
does not stand for that proposition, and did not involve “distinct
injuries.” Fox involved a single injury to the plaintiff caused by
“distinct types of wrongdoing.” (Fox, supra, 35 Cal.4th at p. 814.)
In Fox, the court held that “if a plaintiff’s reasonable and diligent
investigation discloses only one kind of wrongdoing [medical
malpractice] when the injury was actually caused by tortious
conduct of a wholly different sort [products liability], the
discovery rule postpones accrual of the statute of limitations on
the newly discovered claim.” (Id. at p. 813; ibid. [the discovery
rule applies “to delay accrual of a products liability cause of
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action even when a related medical malpractice claim has already
accrued, unless the plaintiff has reason to suspect that his or her
injury resulted from a defective product”].)
This is not a case like Fox, which involved distinct types of
wrongdoing. Nonetheless, building on its misstatement of what
Fox said, MGA contends that “[t]he same is true in the context of
trade secret cases involving multiple, distinct misappropriations.”
MGA cites only one federal district court opinion that correctly
found, “with respect to any given trade secret, California law
requires plaintiff to bring an action within three years after
plaintiff discovered or should have discovered defendants’ initial
misappropriation of that trade secret.” (Intermedics, Inc. v.
Ventritex, Inc. (N.D.Cal. 1992) 804 F. Supp. 35, 44 (Intermedics).)
The quoted statement merely reflects what Civil Code section
3426.6 already tells us: that the claim must be brought within
three years after the misappropriation is discovered or should
have been discovered. Intermedics offers no guidance on the
point at issue here, a point MGA persistently ignores: when did
MGA have “reason to suspect” that Mattel was “gaining
knowledge of MGA’s trade secrets” and “gaining access . . . to
MGA showrooms . . . on false pretenses”? It did so – for all the
2000 to 2006 alleged misappropriations – when it had enough
facts to assert, as it did on August 13, 2007, its affirmative
defense of Mattel’s unclean hands on that very basis.
MGA insists that when it filed its affirmative defense, it
was “at most” on notice of only two trade secrets Mattel obtained
at a 2000 toy fair. Similarly, MGA says that: “To be sure, seeing
Villasenor at one toy fair on one occasion might have placed MGA
on inquiry notice as to whatever trade secrets were being
displayed at that toy fair.” We simply cannot agree with MGA’s
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compartmentalization of its suspicion of wrongdoing. A
defendant in these circumstances cannot don blinders to avoid
the accrual of the statute of limitation.
We reject the notion that, even if MGA learned Mattel
infiltrated one toy fair, it had no reason to suspect a similar
wrongdoing occurred at any other toy fairs. That defies common
sense, and it ignores the undisputed evidence that Mr. Larian
expressed concern – in 2003, and again in 2004, and again in
2007 (see pp. 7-8, ante), that such wrongdoing might occur at toy
fairs in those years.
b. MGA’s claim it did not discover any
trade secret misappropriation until 2010
MGA’s other formulation of its argument is that “MGA did
not discover a single one of Mattel’s 114 misappropriations” until
August 2010, when Mattel turned over documentary evidence of
the misappropriations (its toy fair reports “ ‘rife with confidential
competitive information’ ”). This formulation suffers from the
same underlying flaw as the other: it ignores the standard for
accrual of the statute of limitation.
The standard for accrual of the statute of limitation under
the discovery rule is not the receipt of documentary evidence of
misappropriations. The question is when MGA was “ ‘on notice of
a potential claim.’ ” (See Rita M., supra, 187 Cal.App.3d at
p. 1460.) Jolly makes that perfectly clear when the court tells us
that a plaintiff need not be aware of “specific ‘facts’ necessary to
establish the claim,” and “that is a process contemplated by
pretrial discovery.” (Jolly, supra, 44 Cal.3d at p. 1111.) As the
statute itself tells us, the question is not when MGA actually
discovered all 114 misappropriations; it is when MGA by the
exercise of reasonable diligence should have discovered Mattel
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engaged in misappropriation. (Civ. Code, § 3426.6; see Fox,
supra, 35 Cal.4th 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.’ ”].) Once MGA had “reason to
suspect an injury and some wrongful cause” (Fox, at p. 803), the
statute of limitation began to run.
At the risk of repetition, we point out our rejection of a
similar misguided argument in Bergstein v. Stroock & Stroock &
Lavan LLP (2015) 236 Cal. App. 4th 793. There, after reciting the
Jolly principles (id. at p. 818), we rejected the plaintiffs’ claim
they did not learn the facts constituting the defendants’ wrongful
act until documents evidencing that conduct were produced in
another case. (Id. at pp. 819-820.) We said: “While we accept
these assertions as true, they do not affect the accrual of the
statute of limitations. That is perfectly plain from Jolly . . . .
Plaintiffs do not and cannot say they had no suspicion of
wrongdoing by defendants . . . ; their own statements show
otherwise. Further, their claims that ‘the discovery rule must
prevent the statute of limitations from running until [they] had
sufficient evidence to support their prima facie case’ is likewise
unsupported by any pertinent legal authority, and is
affirmatively contradicted by Jolly.” (Bergstein, at p. 820.)
In the end, MGA simply cannot explain away the assertions
it made in August 2007 in its unclean hands defense. The very
same suspicions based on the very same facts that impelled MGA
to plead that defense were sufficient to put MGA on inquiry
notice of its potential claims. To summarize: In November 2003,
MGA’s CEO, Mr. Larian, knew “the top toy companies” were
using false pretenses to get into private showrooms at toy fairs;
in August 2003, Mr. Larian “expressed concern that Mattel might
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obtain confidential information about unreleased MGA products
previewed in MGA’s showroom”; in February 2004 and January
2007, Mr. Larian “considered the possibility that Mattel might
obtain confidential information about unreleased MGA products”
at upcoming toy fairs; before 2006, Mr. Larian knew, from
Ms. Garcia, that Mr. Villasenor, a Mattel employee, had been
seen in a private MGA showroom where he should not have been,
and Mr. Larian reported that information to MGA’s lawyers.
Under these facts, and having expressly alleged on
August 13, 2007, that Mattel engaged in “monitoring, ‘spying on’
or gaining knowledge of MGA’s trade secrets, non-public
information, nonpublic activities, unreleased products, and
product development,” and in “gaining access, or attempts to gain
access, to MGA showrooms [and] Toy Fair displays on false
pretenses,” MGA cannot now say it had no “reason to suspect an
injury and some wrongful cause” until 2010.
2. MGA’s Fraudulent Concealment Claim
As noted at the outset of our legal discussion, “ ‘the
defendant’s fraud in concealing a cause of action against him tolls
the applicable statute of limitations’ ” until the plaintiff discovers
or should have discovered the claim. (Bernson, supra, 7 Cal.4th
at p. 931.)
MGA contends this is “a paradigmatic case for application
of the fraudulent concealment doctrine,” and the trial court
“failed to understand that fraudulent concealment applies even if
a plaintiff knew of its cause of action, where the defendant
fraudulently concealed material facts about the nature and scope
of the claim, thereby thwarting the plaintiff’s investigation and
running out the clock.” We do not agree.
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MGA relies on general statements plucked from treatises
and California cases dating back to 1944, but these do not assist
MGA. Bernson states the principle we must apply. Bernson
explained that the fraudulent concealment rule is a “close cousin
of the discovery rule,” and “its rationale ‘is that the culpable
defendant should be estopped from profiting by his own wrong to
the extent that it hindered an “otherwise diligent” plaintiff in
discovering his cause of action.’ ” (Bernson, supra, 7 Cal.4th at
p. 931.)
Here, MGA had already discovered its cause of action by
not later than 2007. As we have just discussed at length, once a
plaintiff has “reason to suspect an injury and some wrongful
cause” (Fox, supra, 35 Cal.4th at p. 803), the plaintiff has
“ ‘discover[ed] his cause of action’ ” (Bernson, supra, 7 Cal.4th at
p. 931) and the statute begins to run. As the trial court correctly
put it, by August 13, 2007, “MGA had a suspicion that Mattel had
misappropriated MGA’s trade secrets, using false pretenses to
obtain access to MGA’s unreleased products at trade fairs, and
MGA articulated that suspicion in a pleading filed in federal
court.” The statute began to run then, and Mattel’s efforts to
conceal the evidence of its wrongdoing, however egregious those
efforts were, did not toll the statute. As Rita M. observes, if a
plaintiff is on notice of a potential claim, the doctrine of
fraudulent concealment does not come into play. (Rita M., supra,
187 Cal.App.3d at p. 1460.)
MGA relies on the “Pashley line of authority,” contending
Mattel’s fraud during the discovery process in federal court
prevented it from a full understanding of the true facts.
Fraudulent concealment may exist where there is “a legitimate
hindrance to litigation.” (Pashley v. Pacific Electric Railway Co.
15
(1944) 25 Cal. 2d 226, 232 (Pashley); see ibid. [“the breach of a
duty to disclose known facts with the intention to and which does
hinder commencement of an action until the action would be
outlawed, is a fraud practiced upon the plaintiff which in
conscience estops the defendant’s reliance on the statute of
limitations”].)
Pashley involved an injury to the plaintiff’s eye caused by
the defendant’s negligent operation of a streetcar. Physicians
employed by the defendant, knowing the injury would eventually
destroy the plaintiff’s eyesight, made various false
representations to the contrary “for the purpose and with the
intent of preventing the plaintiff from bringing an action within
the statutory period of one year.” (Pashley, supra, 25 Cal.2d at
p. 228.) Thus in Pashley, while the plaintiff knew of his injury,
he had no reason to suspect his vision would be destroyed. Here,
by contrast, MGA both knew of its injury and articulated the
precise manner in which it was being inflicted.
The other cases MGA cites in the “Pashley line of
authority” are no different in their fundamental principles. (See
Baker v. Beech Aircraft Corp. (1974) 39 Cal. App. 3d 315 [plaintiffs
knew they were injured in the plane crash, but had no reason to
suspect the defective fuel system as the cause, and the
defendants’ misrepresentations hindered them from doing so];
Estate of Amaro v. City of Oakland (9th Cir. 2011) 653 F.3d 808,
812-813, 814-815) [plaintiff mother suspected her son died as a
result of injuries suffered during a police beating, but police
misrepresented how her son died and withheld police reports;
eight years later, an anonymous tip to the FBI led to revelation of
the cover-up; misrepresentations and continued stonewalling
prevented her “from appreciating the full nature of her claim and
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dissuaded her from filing”]; UA Local 343 v. Nor-Cal Plumbing,
Inc. (9th Cir. 1994) 48 F.3d 1465, 1475 [“Where a plaintiff
suspects the truth but investigates unsuccessfully, fraudulent
concealment will toll the statute.”].)
MGA asserts that the “leading treatise” supports its
position, but the treatise does not help either. It merely describes
the Pashley line of cases, indicating that the plaintiff in each of
those cases was injured and knew who caused it, but “there was a
fraudulent concealment of the nature and extent of the injury
that had the effect of inducing him not to sue.” (3 Witkin,
Cal. Procedure (5th ed. 2008) Actions, § 772, pp. 1008-1009.)
Those are not the circumstances here, where MGA clearly
articulated the nature of the injury and its wrongful cause in its
unclean hands defense.
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs
on appeal.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
CHAVEZ, J.*
* Justice of Division Two of the Second District Court of
Appeal, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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