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Dalla v. Jaffer2/25/2003
s defense may be valid as to the 1990 withdrawals. Plaintiffs filed this lawsuit in December 1997. The allegedly unauthorized withdrawals occurred between 1990 and 1994. Since the deposit agreement is in writing, it would be subject to a four-year limitations period. (Code Civ. Proc., ยง 337.) The discovery rule can apply to certain contract claims. (Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 119.) But whether a plaintiff exercised reasonable diligence to discover a claim presents a factual question (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 833), and the plaintiff has the burden of proving reasonable diligence. (Samuels v. Mix (1999) 22 Cal.4th 1, 10; April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at p. 833.)
Defendant's Remaining Contentions
Although we reverse because the trial court erred in concluding plaintiffs were entitled to judgment on the pleadings, we summarily consider and reject certain other claims defendant asserts which may arise upon remand.
As noted, the trial court sustained defendant's demurrer to the second amended complaint's second and fourth causes of action with leave to amend, but plaintiffs never filed an amendment. The trial court subsequently denied defendant's motion to dismiss the entire action. She claims this ruling was erroneous. Code of Civil Procedure section 581, subdivision (f)(2) authorizes dismissal if, after "a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed." But the court sustained the demurrer to only certain counts, not the entire complaint. Plaintiffs merely chose not to expend further efforts in attempting to state causes of action for negligence and intentional infliction of emotional distress. Thus, the remaining counts of the second amended complaint remained to be litigated.
Defendant contends the trial court erroneously denied her request to dismiss the action because plaintiffs failed to appear at several pretrial evaluation conferences. As she concedes, the court monetarily sanctioned them for the nonappearances. The record does not reflect this ruling constituted an abuse of discretion.
Next, defendant attacks the order determining GWB's settlement was in good faith. We cannot review that ruling in this appeal. Code of Civil Procedure section 877.6, subdivision (e) provides for review of a good faith determination by a writ of mandate. A party may not attack a good faith determination finding for the first time in an appeal from the final judgment. (Main Fiber Products, Inc. v. Morgan & Franz Ins. Agency (1999) 73 Cal.App.4th 1130, 1135-1136.) Defendant relies on cases where an appellate court reviewed a good faith determination order on appeal from a final judgment after the aggrieved party timely filed a summarily denied writ petition. This case is distinguishable. Defendant did not seek relief by writ petition. Therefore, we decline to review the propriety of the good faith determination in this appeal.
DISPOSITION
The judgment is reversed and the matter remanded to the superior court for further proceedings consistent with this opinion. Appellant shall recover her costs on appeal.
WE CONCUR:
BEDSWORTH, J.
FYBEL, J.
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