Platt Electrical Supply, Inc. v. Underwriters Laboratories, Inc. ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PLATT ELECTRICAL SUPPLY, INC., an 
Oregon corporation,
Plaintiff-Appellant,
v.
No. 05-15672
EOFF ELECTRICAL, INC.,
Plaintiff,  D.C. No.
CV-03-00992-RMW
and
OPINION
UNDERWRITERS LABORATORIES, INC.,
a Delaware not-for-profit
corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submission Deferred February 16, 2007
Submitted February 14, 2008
San Francisco, California
Filed April 15, 2008
Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Alfred V. Covello,* Senior Judge.
Opinion by Judge Rawlinson
*The Honorable Alfred V. Covello, Senior United States District Judge
for the District of Connecticut, sitting by designation.
3993
3996 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL
COUNSEL
James O. Devereaux (argued), and Jan A. Kopczynski, Berd-
ing & Weil LLP, Alamo, California, for Appellant Platt Elec-
trical Supply, Inc.
Michael J. Abernathy (argued), and Christopher I. Cedillo,
Bell, Boyd & Lloyd LLC, Chicago, Illinois, for Appellee
Underwriters Laboratories, Inc.
OPINION
RAWLINSON, Circuit Judge:
In its complaint, Appellant Platt Electrical Supply, Inc.
(Platt) alleged that Appellee Underwriters Laboratories, Inc.
(UL), a non-profit consumer safety group, negligently misrep-
resented and fraudulently concealed that defective in-wall
heaters were safe. Platt challenges the district court’s grant of
UL’s motion to dismiss and motion for judgment on the
PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 3997
pleadings. Platt contends that the district court erred in dis-
missing its negligent misrepresentation and fraudulent con-
cealment claims as time-barred under California’s statutes of
limitations. Platt asserts that its claims were not time-barred
in view of California’s discovery rule and UL’s fraudulent
concealment. Platt also maintains that the district court erred
in dismissing its claims without leave to amend the complaint.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and we
affirm the judgment of the district court.
I. BACKGROUND
Platt filed its complaint in 2003. According to its complaint,1
Platt was “engaged in the distribution, marketing, and whole-
sale supply of electrical products intended for consumer pur-
chase and use.” UL “is a not-for-profit corporation . . .
principally engaged in the business of formulating safety stan-
dards for new consumer products, testing such products
against its standards, determining whether the product so
tested conforms to the standards, and, if the product does
comply, authorizing the product’s manufacturer to imprint
UL’s distinctive mark on the complying product.”
Platt asserted that Cadet Manufacturing Company (Cadet)
“manufactured . . . in-wall space heaters under the names
‘Cadet’ and ‘Encore.’ ” UL evaluated Cadet’s heaters, and
determined that the heaters complied with UL’s safety stan-
dards. UL “authorized Cadet to include the UL mark on the
labels of the Heaters.” UL’s “process is known as ‘listing’,
and a product that has qualified to bear the UL mark is said
to be a ‘listed product.’ ”
1
The factual background is based on Platt’s complaint, because, in
reviewing a motion to dismiss, “[w]e accept as true all well-pleaded facts
in the complaint and construe them in the light most favorable to the non-
moving party.” Watson v. Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006)
(citation omitted). The same standard applies to judgment on the plead-
ings. Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004).
3998 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL
Platt charged that by permitting these listings, “UL
impliedly represented to Plaintiffs” that the heaters were
“suitable for reasonably safe use as an in-wall heater . . .”
Platt alleged that the heaters “manufactured between 1978
and the present, and listed by UL since at least 1985, are
inherently defective.” According to Platt, “if the heaters had
not been endorsed by UL then neither of the Plaintiffs would
have engaged in the purchase, sale, advertisement, or distribu-
tion of the Heaters. Moreover, Plaintiffs are informed and
believe, and based thereon allege, that at no time prior to a
1999 CPSC [Consumer Product Safety Commission] recall
did they become aware that the Heaters were inherently
defective.”
Platt alleged that “based on the express approval by UL of
the Heaters, [it] distributed in excess of nineteen-thousand
[sic] (19,000) Cadet heaters.”
Platt also asserted “that since at least 1988, UL became
aware that the Heaters were exhibiting defects . . . . However,
UL took no action relative to rescinding its endorsement of
the product or notifying the general public, product distribu-
tors or retailers . . . of the dangerous defects inherent in the
Heaters.” “Despite its knowledge, as early as 1988, of the
defects inherent in the Heaters, UL continued to list Cadet
heaters.” According to Platt, “Plaintiffs did not discover
Defendants’ wrongful conduct or its basis for liability until
2001 when they became involved in [sic] consumer class
action . . . and were granted through pre-trial discovery lim-
ited access to Defendant UL’s files concerning the Heaters.”
Additionally, Platt charged that “Defendants’ wanton and
reckless refusal to disclose such information fraudulently con-
cealed from Plaintiffs crucial facts . . .”
“[I]n or around 1998, the [CPSC] became aware that Cadet
heaters were defective. Accordingly, on or around January 14,
1999, the CPSC filed an administrative order recalling all
PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 3999
Cadet heaters . . .” “Plaintiffs were required, under controlling
federal statute to bear a portion of the costs of conducting the
recall.”
“[C]ontemporaneous to the CPSC recall, a consumer class
action was filed on behalf of all purchasers of the Heaters
. . .” Platt “was named as a defendant . . . [and] entered into
a settlement agreement with the class, pursuant to which
Plaintiff PLATT continues to pay money to the class.”
According to Platt, it “has paid in excess of one-million one-
hundred fifty-six-thousand dollars ($1,156,000.00) pursuant
to the class settlement.”
In its negligent misrepresentation claim, Platt alleged that
“at least since 1989 [UL] had knowledge that the Heaters
failed and could, and in fact had, caused catastrophic injury
and death. Despite such knowledge, [UL] continued to repre-
sent to the world at large that the Heaters were safe products.”
“[UL] continued to allow its mark to be placed on the Heaters
knowing that consumers, distributors, and retailers rely on the
mark as an assurance of safety. [UL] continued to make such
material representations of material facts without an adequate
basis or knowledge for making such representations.” Accord-
ing to Platt, “[UL] failed to act because such action would
constitute a tacit admission that [UL’s] testing procedures
were flawed and such an admission would undermine [UL’s]
position as the self-proclaimed leader in certifying the safety
of consumer goods.”
Platt also alleged that “[a]t no time prior to the Class
Action or CPSC recall did Plaintiffs have any reason to sus-
pect that the Heaters were unsafe. Plaintiffs relied on the UL
mark as an assurance of the Heaters’ safety and suitability for
its end use . . .”
In its fraudulent concealment claim, Platt alleged that it was
not required to conduct an independent investigation of the
heaters’ safety. Rather, Platt “heavily [relied] on the exis-
4000 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL
tence, or non-existence, of the UL mark on a good.” Platt
alleged that “[UL], by allowing their mark to remain on the
Heaters, intentionally intended to mislead consumers, retail-
ers, and distributors like Plaintiff into believing that [UL’s]
listing procedures accurately reflected that the Heaters were
suitable and safe for their intended use by consumers and
were to be absolutely relied on so that [UL] could maintain
their position as self-proclaimed leaders in certifying the
safety of consumer goods.” Platt also asserted that UL “as-
sumed a duty to disclose, whether by de-listing or public noti-
fication, any known incidents that might dissuade consumers,
retailers and distributors like [Platt] from trading in the Heat-
ers.”
The district court determined that Platt was “on inquiry
notice of their claims as early as 1999. Specifically, the court
held that “once [Platt] became aware [through the CPSC
recall and class action] that the cadet heaters they sold were
potentially defective, and they began to suffer damages, [they]
were on inquiry notice that UL, on whose mark they relied,
may have either negligently tested or negligently endorsed
those products . . . .” The district court, therefore, dismissed
Platt’s negligent misrepresentation claim as time-barred with-
out leave to amend. However, the district court denied UL’s
motion to dismiss Platt’s fraudulent concealment claim.
The district court subsequently granted UL’s motion for
judgment on the pleadings and dismissed Platt’s fraudulent
concealment claim as time-barred, again without leave to
amend.
Platt dismissed its remaining equitable indemnification
claim, and filed a timely notice of appeal.
II. STANDARDS OF REVIEW
We “review de novo the district court’s decision to grant a
motion to dismiss pursuant to FRCP 12(b)(6).” Watson, 436
PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4001
F.3d at 1157 (citation omitted). “A claim should be dismissed
only if it appears beyond doubt that the plaintiff can establish
no set of facts under which relief could be granted.” Id. (cita-
tion omitted).
We “review judgment on the pleadings de novo.” Stanley
v. Trustees of the Cal. State Univ., 433 F.3d 1129, 1133 (9th
Cir. 2006) (citation omitted). “Judgment on the pleadings is
proper when, taking all allegations in the pleading as true, the
moving party is entitled to judgment as a matter of law.” Id.
(citation omitted).
The parties contest the applicable standard of review for the
district court’s dismissal of Platt’s claims without leave to
amend. Platt contends that the standard of review is de novo.
UL counters that the standard of review is for an abuse of dis-
cretion.
This appeal involves the issue of whether any amendment
would be futile due to dismissal pursuant to the applicable
statutes of limitations. We review such issues for an abuse of
discretion. See Naas v. Stolman, 130 F.3d 892, 893 (9th Cir.
1997) (“[T]he district court did not abuse its discretion in
denying leave to amend, as the Naases’ potential amended
claim would still be barred by the statute of limitations.”); see
also Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th
Cir. 2002) (“A district court, however, does not abuse its dis-
cretion in denying leave to amend where amendment would
be futile.”) (citation omitted).
III. DISCUSSION
A. The Discovery Rule And The Fraudulent
Concealment Doctrine As Applied To Platt’s
Claims
[1] Pursuant to California Code of Civil Procedure
§ 338(d), there is a three-year statute of limitations for “[a]n
4002 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL
action for relief on the ground of fraud or mistake. The cause
of action in that case is not deemed to have accrued until the
discovery, by the aggrieved party, of the facts constituting the
fraud or mistake.” For negligent misrepresentation, there is a
two-year statute of limitations. Cal. Civ. Proc. Code § 339(1);
Ventura County Nat’l Bank v. Macker, 49 Cal. App. 4th 1528,
1531 (1996).
“Since a cause of action accrues when the elements of the
cause of action, including damage occur, the appreciable and
actual harm that results in accrual must be harm of the spe-
cific type that is recoverable as damages on that type of cause
of action.” County of Santa Clara v. Atl. Richfield Co., 137
Cal. App. 4th 292, 317 (2006) (citations and internal quota-
tion marks omitted) (emphasis in the original).
[2] “A cause of action accrues when the claim is complete
with all of its elements.” Slovensky v. Friedman, 142 Cal.
App. 4th 1518, 1528 (2006), as modified (citation omitted).
“Although this ordinarily occurs on the date of the plaintiff’s
injury, accrual is postponed until the plaintiff either discovers
or has reason to discover the existence of a claim, i.e., at least
has reason to suspect a factual basis for its elements.” Id. at
1528-29 (citations omitted). “Plaintiffs are required to con-
duct 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 1529 (citation and alteration omitted). “So long as there is
a reasonable ground for suspicion, the plaintiff must go out
and find the facts; she cannot wait for the facts to find her.”
Id. (citation omitted).
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. In so using
the term elements, we do not take a hypertechnical
approach to the application of the discovery rule.
PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4003
Rather than examining whether the plaintiffs suspect
facts supporting each specific legal element of a par-
ticular cause of action, we look to whether the plain-
tiffs have reason to at least suspect that a type of
wrongdoing has injured them.
V.C. v. Los Angeles Unified Sch. Dist., 139 Cal. App. 4th 499,
516 (2006) (citations, alteration, and internal quotation marks
omitted). “A common thread seems to run through all the
types of actions where courts have applied the discovery rule.
The injury or the act causing the injury, or both, must have
been difficult for the plaintiff to detect.” Prudential Home
Mortgage Co. v. Superior Court, 66 Cal. App. 4th 1236,
1246-47 (1998), as modified.
“A close cousin of the discovery rule is the well accepted
principle of fraudulent concealment.” Bernson v. Browning-
Ferris Indus. of California, Inc., 7 Cal. 4th 926, 931 (1994)
(In Bank) (citation, alteration and internal quotation marks
omitted). “The rule of fraudulent concealment is applicable
whenever the defendant intentionally prevents the plaintiff
from instituting suit . . .” Id. at 931 n.3 (citation omitted). “In
order to establish fraudulent concealment, the complaint must
show: (1) when the fraud was discovered; (2) the circum-
stances under which it was discovered; and (3) that the plain-
tiff was not at fault for failing to discover it or had no actual
or presumptive knowledge of facts sufficient to put him on
inquiry.” Baker v. Beech Aircraft Corp., 39 Cal. App. 3d 315,
321 (1974) (citation omitted). “In urging lack of means of
obtaining knowledge, it must be shown that in the exercise of
reasonable diligence the facts could not have been discovered
at an earlier date.” Id. (citation omitted).
1. Platt’s Negligent Misrepresentation Claim
“Negligent misrepresentation is narrower than fraud.”
Shamsian v. Atl. Richfield Co., 107 Cal. App. 4th 967, 984
(2003). “The elements of a cause of action for fraud and a
4004 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL
cause of action for negligent misrepresentation are very simi-
lar . . . . [B]oth torts are defined as deceit. However, the state
of mind requirements are different.” Intrieri v. Superior
Court, 117 Cal. App. 4th 72, 85 (2004) (footnote reference
omitted). “Negligent misrepresentation lacks the element of
intent to deceive. Therefore, where the defendant makes false
statements, honestly believing that they are true, but without
reasonable ground for such belief, he may be liable for negli-
gent misrepresentation, a form of deceit.” Id. at 86 (citations,
alteration, and internal quotation marks omitted).
[3] Platt was on inquiry notice of its negligent misrepresen-
tation claim in 1999. In 1999, Platt became aware of the heat-
ers’ defects due to the CPSC recall. Platt was statutorily
required to bear a portion of the recall’s costs.
“[C]ontemporaneous to the CPSC recall,” Platt was named a
defendant in a class action concerning the heaters’ defects. In
1999, Platt should have been suspicious that UL negligently
represented that the heaters were safe, given the recall and the
class action suit. Based on the extensive legal and economic
repercussions produced by the recall and class action, Platt
had “reason to at least suspect that a type of wrongdoing ha[d]
injured [it].” V.C., 139 Cal. App. 4th at 516. Platt, therefore,
did not have to wait until 2001, during the discovery process
for the class action, to “suspect that the injury was caused by
someone’s wrongful act.” Brandon G. v. Gray, 111 Cal. App.
4th 29, 35 (2003); see also Jolly v. Eli Lilly & Co., 44 Cal.
3d 1103, 1113 (1988) (“[I]t is the discovery of facts, not their
legal significance, that starts the statute.”) (citation omitted).
[4] Similarly, Platt’s claim is not tolled pursuant to the
fraudulent concealment doctrine. Platt alleged that it was not
privy to UL’s documents concerning UL’s allegedly fraudu-
lent conduct until 2001. However, Platt failed to demonstrate
that UL’s conduct concealed the facts of its alleged negligent
misrepresentation, as Platt had notice of UL’s potential
wrongdoing as early as 1999. See Goldrich v. Natural Y Sur-
gical Specialties, Inc., 25 Cal. App. 4th 772, 784 (1994) (“A
PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4005
defendant’s fraudulent concealment tolls the statute of limita-
tions only when, as a result of that concealment, the plaintiff
fails to discover some critical fact.”) (citation omitted); see
also Parsons v. Tickner, 31 Cal. App. 4th 1513, 1525 (1995)
(“Under this rule constructive and presumed notice or knowl-
edge are equivalent to knowledge. So, when the plaintiff has
notice or information of circumstances to put a reasonable
person on inquiry, or has the opportunity to obtain knowledge
from sources open to [its] investigation (such as public
records or corporation books), the statute commences to
run.”) (citation omitted).
Platt’s reliance on Fox v. Ethicon Endo-Surgery, Inc., 35
Cal. 4th 797 (2005), is misplaced. In Fox, the plaintiff sued
a physician for malpractice due to complications from gastric
bypass surgery. Id. at 802. During the physician’s deposition,
the plaintiff first learned of defects in the medical device uti-
lized. Id. at 804. The plaintiff then filed a products liability
action against the device’s manufacturer outside the applica-
ble one-year statute of limitations. Id. at 804-05. The Califor-
nia Supreme Court held:
It is therefore consistent with our prior applications
of the discovery rule to delay accrual of a products
liability cause of 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 . . . . [I]f a plain-
tiff’s reasonable and diligent investigation discloses
only one kind of wrongdoing when the injury was
actually caused by tortious conduct of a wholly dif-
ferent sort, the discovery rule postpones accrual of
the statute of limitations on the newly discovered
claim.
Id. at 813.
[5] Platt’s claims did not involve ignorance of the heater’s
defects. Platt was aware of UL’s identity and alleged wrong-
4006 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL
doing in 1999. Based on the recall and subsequent class
action, it should have been obvious to Platt that its injuries
potentially stemmed from UL’s misrepresentations of the
heaters’ safety, particularly given Platt’s reliance on UL’s
endorsement. The district court, therefore, properly dismissed
Platt’s negligent misrepresentation claim, filed in 2003, as
barred by the two-year statute of limitations. See Jolly, 44
Cal. 3d at 1113-14.
2. Platt’s Fraudulent Concealment Claim
[6] “With respect to actions based on fraud, the statute of
limitations is tolled whenever plaintiff is able to show the
defendant fraudulently concealed facts which would have led
him to discover his potential cause of action.” Snow v. A. H.
Robins Co., Inc., 165 Cal. App. 3d 120, 127-28 (1985) (cita-
tion omitted). “Otherwise, in such cases, the defendant by
concealing his fraud, would effectively block recovery by the
plaintiff because of the intervention of the statute of limita-
tions.” Id. at 128 (citation omitted).
[7] Platt’s fraud claim was not tolled pursuant to California
law. In Norgart v. Upjohn Co., 21 Cal. 4th 383 (1999), the
California Supreme Court articulated:
[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 has done something wrong to him, wrong
being used, not in any technical sense, but rather in
accordance with its lay understanding. He has reason
to discover the cause of action when he has reason
at least to suspect a factual basis for its elements. He
has reason to suspect when he has notice or informa-
tion of circumstances to put a reasonable person on
inquiry; he need not know the specific facts neces-
sary to establish the cause of action; rather, he may
PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4007
seek to learn such facts through the process contem-
plated by pretrial discovery; but, within the applica-
ble limitations period, he must indeed seek to learn
the facts necessary to bring the cause of action in the
first place — he cannot wait for them to find him
and sit on his rights; he must go find them himself
if he can and file suit if he does.
Id. at 397-98 (citations, alteration, and internal quotation
marks omitted) (emphasis in the original). The California
Court of Appeal has observed that “[t]he courts interpret dis-
covery in this context to mean not when the plaintiff became
aware of the specific wrong alleged, but when the plaintiff
suspected or should have suspected that an injury was caused
by wrongdoing.” Kline v. Turner, 87 Cal. App. 4th 1369,
1374 (2001). “A plaintiff need not be aware of the specific
facts necessary to establish a claim since they can be devel-
oped in pretrial discovery. Wrong and wrongdoing in this
context are understood in their lay and not legal senses.” Id.
(citation omitted). As the court reasoned in Brandon G.:
Code of Civil Procedure section 338, subdivision
(d), effectively codifies the delayed discovery rule in
connection with actions for fraud, providing that a
cause of action for fraud is not to be deemed to have
accrued until the discovery, by the aggrieved party,
of the facts constituting the fraud or mistake. In a
case such as this, that date is the date the complain-
ing party learns, or at least is put on notice, that a
representation was false.
111 Cal. App. 4th at 35 (internal quotation marks omitted).
[The California Supreme Court in] Norgart
explained that by discussing the discovery rule in
terms of a plaintiff’s suspicion of elements of a
cause of action, it was referring to the generic ele-
ments of wrongdoing, causation, and harm. In so
4008 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL
using the term elements, we do not take a hypertech-
nical 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.
Fox, 35 Cal. 4th at 807 (citation and internal quotation marks
omitted).
Recently, in Hamilton Materials, Inc. v. Dow Chemical
Corp., 494 F.3d 1203 (9th Cir. 2007), we determined that a
manufacturer’s fraud claim was time-barred. We held:
Appellant argues that its fraud claim did not accrue
until a deposition in 2003, when it learned of Appel-
lees’ specific intention to deceive their customers
regarding the health hazards of Calidria. . . . [I]t is
not necessary that Hamilton had notice of Appellees’
specific intention to deceive before the fraud action
accrued. All that is relevant is that a reasonable per-
son — especially a sophisticated manufacturer of
asbestos — would have been on notice of a potential
misrepresentation. This is the date that the complain-
ing party learns, or at least is put on notice, that a
representation is false.
Id. at 1206-07 (citation omitted).
[8] The rule stated in Hamilton Materials that a cause of
action for fraud under California law accrues when a plaintiff
has inquiry notice, that is, when he or she “learns, or at least
is put on notice, that a representation is false[,]” 494 F.3d at
1207 (citation omitted), derives from a California Court of
Appeal decision interpreting a provision of the California
Code of Civil Procedure. See Brandon G., 111 Cal. App. 4th
at 35 (explaining that the statutory provision at issue “effec-
PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4009
tively codifies the delayed discovery rule in connection with
actions for fraud” and that the date of discovery triggering the
limitations period under that provision coincides with the date
that the plaintiff learned or was put on notice of a false repre-
sentation).
[9] While the Hamilton Materials analysis is thus limited
to cases of fraud governed by California law, the concept of
inquiry notice to which Hamilton Materials alludes has also
arisen in the federal securities fraud context in our recent
decision in Betz v. Trainer Wortham & Co., Inc., 504 F.3d
1017 (9th Cir. 2007). In Betz, we held that once sufficient
indicia of fraud exist to place an investor on inquiry notice,
the statute of limitations will begin to run on a claim under
§ 10(b) of the Securities Exchange Act when the investor, in
the exercise of reasonable diligence, should have discovered
the facts giving rise to his or her claim. Id. at 1021, 1024-25.
Under that standard, we concluded that fact issues existed,
precluding summary judgment, about whether an investor was
on inquiry notice and whether she should have discovered the
facts underlying her fraud claim when she had raised concerns
about her declining account balance, but was assured by rep-
resentatives of the defendant brokerage firm that they would
“take care of” the problems with her account and urged to
refrain from any legal action. See id. at 1027. So far as we can
discern from the record, the instant case differs from Betz in
that Platt was given no assurances by UL that could have
lulled Platt into inaction after the defects in the Cadet heaters
became public knowledge pursuant to the 1999 CPSC recall.
Furthermore, while declining account balances alone were
held to be insufficient indicia of fraud to create inquiry notice
as a matter of law in Betz, UL was engaged in endorsing prod-
ucts for reasonably safe consumer use, and its listing of the
Cadet heaters as safe, in combination with the 1999 recall,
was sufficient to give Platt notice that UL’s prior assurances
of the heaters’ safety were potentially false. It is irrelevant
what else Platt might have learned through further diligent
investigation after 1999 about UL’s misrepresentations or
4010 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL
intent to deceive Platt and others regarding the Cadet heaters’
safety, because in 1999 Platt already knew that UL’s prior
representations about the heaters’ safety were false, and that
knowledge was sufficient to trigger the statute of limitations
for fraud under California law. See Hamilton Materials, 494
F.3d at 1206-07 (holding that a plaintiff need not have “notice
of [the defendant’s] specific intention to deceive before the
fraud action accrued. All that is relevant is that a reasonable
person . . . would have been on notice of a potential misrepre-
sentation”) (citation omitted).
[10] These cases demonstrate that Platt’s fraudulent con-
cealment claim was not tolled. Platt conceded that “[i]t may
be fair to say (as did the district judge in this case) that once
Platt learned that the heaters were defective and posed a
safety hazard, it was on notice that UL’s certification (and,
thus, its representation) of safety was factually false.” At that
point, Platt was aware that it had suffered an economic injury
stemming from its payment of a portion of the costs from the
1999 recall and class action settlement. It also knew that this
injury stemmed from UL’s alleged wrongdoing — the pur-
ported misrepresentation. Platt acknowledged its reliance and
dependence on UL’s representation and was involved in an
extensive recall and subsequent class action litigation con-
cerning the defective heaters. After becoming aware in 1999
of its economic injury stemming from the defective heaters
and UL’s representations concerning their safety, Platt had a
basis to question UL’s representations concerning the heaters’
safety. Platt’s fraudulent concealment claim, filed in 2003,
was therefore barred by the three-year statute of limitations.
See Hamilton Materials, 494 F.3d at 1206; see also Kline, 87
Cal. App. 4th at 1374.2,3
2
Grisham v. Phillip Morris U.S.A., Inc., 40 Cal. 4th 623 (2007), and E-
Fab, Inc. v. Accountants, Inc. Servs., 153 Cal. App. 4th 1308 (2007), are
not to the contrary. As we observed in Hamilton Materials, “Grisham is
predominantly a personal injury case, and does not speak to whether
knowledge of scienter is a required element for a fraud cause of action to
PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4011
B. The District Court’s Denial Of Platt’s Request For
Leave To Amend Its Complaint
[11] The district court did not abuse its discretion in dis-
missing Platt’s negligent misrepresentation and fraudulent
accrue. Nevertheless, if one were to draw a strained comparison between
the present case and Grisham, it is clear that Appellant has offered no
credible evidence to rebut a presumption that it had knowledge of the
wrongful cause of its alleged injuries.” 494 F.3d at 1207 n.1. In E-Fab, a
case concerning misrepresentations related to a background check, 153
Cal. App. 4th at 1313, the California Court of Appeal emphasized that
“both plaintiff’s injury and its cause were imperceptible.” Id. at 1326.
Here, Platt’s injury and its cause were not “imperceptible,” as Platt
acknowledged that it was aware of UL’s false representation and the sub-
sequent injury before 2001.
3
Platt also contends that the district court erred in holding that UL did
not have a duty to disclose the heaters’ unsafe conditions.
The district court ruled in Platt’s favor on the issue of whether Platt
stated a claim for fraudulent concealment. The district court incidentally
stated that Platt had failed to allege a transactional or confidential relation-
ship between Platt and UL as required to trigger a duty to disclose. How-
ever, the dispositive ruling was that Platt’s fraudulent concealment claim
was barred by the statute of limitations.
“[C]ourts review judgments, not statements in opinions . . .” Envtl. Prot.
Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1075 (9th Cir. 2001)
(citation and internal quotation marks omitted). “A party who receives all
that he has sought generally is not aggrieved by the judgment affording the
relief and cannot appeal from it.” Id. (citations omitted). Because Platt pre-
vailed on the issue of whether there was a viable fraudulent concealment
claim, it lacks standing to appeal the district court’s favorable ruling. See
id. at 1075-76.
In any event, because Platt failed to allege that there was a transactional
relationship between Platt and UL, the district court properly observed
that, pursuant to California law, Platt’s fraudulent concealment claim
could not be premised on a duty to disclose. See LiMandri v. Judkins, 52
Cal. App. 4th 326, 337 (1997) (“[W]here material facts are known to one
party and not to the other, failure to disclose them is not actionable fraud
unless there is some relationship between the parties which gives rise to
a duty to disclose such known facts . . . . As a matter of common sense,
such a relationship can only come into being as a result of some sort of
transaction between the parties.”) (citation omitted) (emphasis in the orig-
inal).
4012 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL
concealment claims without leave to amend. Platt contended
that it could amend its complaint to allege that it received
information in 2001, during discovery for the class action,
that a former UL employee stated that UL concealed the heat-
ers’ unsafe conditions.
[12] However, because Platt’s claims are barred by the stat-
ute of limitations, any amendments would have been futile.
See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th
Cir. 1998) (“Although there is a general rule that parties are
allowed to amend their pleadings, it does not extend to cases
in which any amendment would be an exercise in futility, or
where the amended complaint would also be subject to dis-
missal. . .” ) (citations omitted); see also Naas, 130 F.3d at
893.
IV. CONCLUSION
The district court properly dismissed Platt’s negligent mis-
representation and fraudulent concealment claims as barred
by the statutes of limitations, and did not abuse its discretion
in dismissing Platt’s claims without leave to amend.
AFFIRMED.