Filed 10/31/14 Chaudry v. Centi CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


KAILASH CHANDRA CHAUDHARY,                                           H039733
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. 112CV228137)

         v.

DEBBIE SWANSON CENTI,

         Defendant and Respondent.



                                              I. INTRODUCTION
         After appellant Kailash Chandra Chaudhary killed his ex-wife in 1986 and pleaded
no contest to second degree murder, he voluntarily relinquished his parental rights to their
daughter, K., during juvenile dependency proceedings. K. was adopted by her court-
appointed guardian, respondent Debbie Swanson Centi, in 1989. In 2005, Chaudhary
was released on parole. (In re Chaudhary (2009) 172 Cal.App.4th 32, 34.) In 2012, he
filed the present action alleging that Centi had broken the promises she made to him
regarding the rearing and education of K. in exchange for his voluntary relinquishment of
his parental rights. The complaint includes causes of action for fraud, constructive fraud,
and intentional infliction of emotional distress.
         Centi filed a motion for judgment on the pleadings on the ground that the action
against her was time-barred under the three-year limitations period provided by Code of
Civil Procedure section 338, subdivision (d)1 for fraud claims and the section 335.1 two-
year limitations period for claims of intentional infliction of emotional distress. The trial
court granted the motion and entered judgment in Centi’s favor.
       On appeal, Chaudhary contends that the trial court erred in finding that his action
was untimely filed in July 2012 since the complaint’s allegations show that he could not
have discovered the facts underlying his claims until he met K. in January 2012.
Chaudhary also contends that the trial court abused its discretion in denying leave to
amend the complaint. For the reasons stated below, we find no merit in Chaudhary’s
contentions and therefore we will affirm the judgment.
               II. FACTUAL AND PROCEDURAL BACKGROUND2
       A. Termination of Parental Rights
       Chaudhary was married to Sudha Chaudhary.3 Their daughter, K., was born in
1981. On May 22, 1986, the couple became involved in an argument regarding their
marital dissolution and custody issues. During the course of the argument, Chaudhary
became outraged and killed Sudha by shooting her five times at close range. Chaudhary
pleaded no contest to second degree murder and began serving a state prison term of 17
years to life in 1987. He was released on parole in 2005. (In re Chaudhary, supra, 172
Cal.App.4th at p. 34.)
       After the death of her mother and the incarceration of her father, K. was the
subject of juvenile dependency proceedings. (In re K. (Super. Ct. Santa Clara County,
1989, No. 91473).) In 1989, Chaudhary voluntarily relinquished his parental rights to K.,


       1
         All statutory references hereafter are to the Code of Civil Procedure unless
otherwise indicated.
       2
         Our summary of the factual and procedural background includes some
information that we have taken from our prior opinion in In re Chaudhary (Jan. 20, 2005,
H027084) [nonpub. opn.].)
       3
         We will refer to Sudha Chaudhary by her first name for reasons of clarity and not
out of disrespect.

                                              2
who was then adopted by Centi. (Chaudhary v. O’Neil (9th Cir. Nov. 30, 1995, No. 94-
15408) 70 F.3d 1277 [1995 U.S.App. LEXIS 35313, *2].) After Chaudhary relinquished
his parental rights, he began challenging the termination of his parental rights and the
adoption proceedings in state and federal courts. (Id. at pp. *2-*3.)
       B. Federal Action
       We take judicial notice of the complaint that Chaudhary filed in 1993 against
Centi (sued as Deborah Swanson) and Richard O’Neil4 in the federal court. (Chaudhary
v. O’Neil, U.S.D.C., N.Cal., No. C-93-20967, complaint filed Dec. 20, 1993).5 (Evid.
Code, § 452, subd. (d)(2).)
       In his federal complaint, Chaudhary alleged that Centi was K.’s court-appointed
guardian in 1987 when K. was placed with a family in Connecticut. K. had problems in
the Connecticut placement that Centi allegedly kept secret from Chaudhary. In 1989,
Chaudhary learned that K. had been “beaten and abused” in Connecticut.
       Chaudhary claimed that he had relinquished his parental rights to K. under duress
and that K. “was given for adoption to an unwed woman [Centi] who had no children and
had no experties [sic] in parenting a Hindu child. False assurances were given that
[Chaudhary] would maintain contacts with his daughter. False assurances were given
that religious and cultural education and exposure will be provided to [K.] in her own
Hindu faith and culture.” According to Chaudhary, after Centi adopted K., she failed to




       4
          The federal complaint names Richard O’Neil as “Director Social Service Agency
Santa Clara County.”
        5
          Under the Evidence Code, we take judicial notice of matters properly noticed by
the trial court, and may take notice of any matter specified in Evidence Code section 452.
(Rea v. Blue Shield of California (2014) 226 Cal.App.4th 1209, 1223-1224.) Evidence
Code section 452, subdivision (d)(2) provides that we may take judicial notice of federal
court records. (See People v. $25,000 United States Currency (2005) 131 Cal.App.4th
127, 131, fn. 2.)

                                             3
provide K. with Hindu religious and cultural education. Centi also “was preying on the
child in order to gain controll [sic] over the child and [the] child’s large inheritance.”
       The relief sought by Chaudhary in his federal action included placement of K. in a
Hindu home; restoration of his parental rights; contact with K.; the provision of Hindu
education, culture, and therapy to K.; and the recovery of the “financial plundering of
[K.’s] estate.” Chaudhary also sought damages for civil rights violations, the physical
and emotional abuse suffered by K., and the “[e]motional distress caused to [Chaudhary]
and his family.”
       We also take judicial notice under Evidence Code section 452, subdivision (d)(2)
of the federal court records showing that the United States District Court ordered
dismissal of Chaudhary’s action in 1994. (Chaudhary v. O’Neil, supra, No. C-93-
20967.) The dismissal order was upheld on appeal. (Chaudhary v. O’Neil, supra, 70
F.3d 1277 [1995 U.S.App. LEXIS 35313 at pp. *8-*9].)
       C. Present Action
       Chaudhary filed the complaint in the present action on July 10, 2012. A summary
of the complaint’s allegations regarding Centi’s adoption and rearing of K. follows.
       Chaudhary was incarcerated in 1986 and Centi was appointed K.’s guardian. At
that time, Chaudhary wanted K. to be placed in the home of his friends from IBM. He
tried to prevent K. from being placed in Centi’s home after K. was removed from her first
placement. In 1987, K. was placed in the Connecticut home of the Taylor family.
       Chaudhary believes that Centi did not want to keep K. for herself until she
discovered that K. was going to inherit a large amount of money and would also receive
insurance proceeds from her mother’s estate as well as Social Security benefits.
According to Chaudhary, Centi then embarked on a scheme to sabotage K.’s placement
with the Taylors. She also lied to Chaudhary’s attorney when the attorney inquired about
whether K. was experiencing any problems with the Taylors. Centi reported that



                                               4
everything was going well with the Taylors although K. was being abused and
mistreated.
       Chaudhary also believes that when K. was removed from her placement with the
Taylors, Centi proposed herself as the adoptive parent “in a selfish effort to get her hands
on [K.’s] money and obtain money that would be paid to [her] as a foster parent, and
subsequently as [an] adoptive parent.” Centi and Chaudhary had a conversation in which
he told her that he did not want her to adopt K. Chaudhary objected to Centi because she
“was a single Caucasian woman” who did not meet the social worker’s
recommendations.
       According to Chaudhary, Centi achieved her adoption of K. by means of deceit
and manipulation. Centi proposed that Chaudhary voluntarily relinquish his parental
rights in exchange for her promises that (1) she would ask K. to visit him several times
per year on a regular basis; (2) she would encourage K. to write to him at least once a
month and maintain telephone contact with him; (3) she would act in K.’s best interest
and protect her financial assets; (4) she would provide K. “with the best things available
and [a] good environment;” (5) she would provide K. “with the very best education;”
(6) she would provide K. with “religious and cultural continuity in her own faith and
culture;” and (7) she would enroll K. in the Hindu temple in Fremont, California, and
provide religious and cultural education. Centi also told Chaudhary that K. would be
returned to her placement with the Taylors if he objected to Centi’s adoption. Chaudhary
decided to give up his parental rights and forgo his objection to Centi’s adoption of K.
based upon Centi’s promises.
       When Chaudhary was released from prison in 2005, he was prohibited from
contacting K. and Centi as a condition of his parole. The no-contact restriction was lifted
in 2010. Chaudhary then began an investigation of K.’s whereabouts. In 2011,
Chaudhary had a telephone conversation with K. and then met her in a restaurant. K. was
reluctant to speak openly with Chaudhary and he did not learn that Centi had treated K.

                                             5
poorly until he was telephoned by Bob Schmitz, the father of one of K.’s friends.
Schmitz told Chaudhary that Centi had thrown K. out of her house and K. had been given
shelter by Schmitz and his wife.
       In January 2012, Chaudhary met with K. and K.’s therapist. At that time,
Chaudhary “truly learn[ed] that [Centi] had failed to live up to any of her promises.” He
is informed and believes that K. received jewelry and insurance proceeds from her
mother’s estate and that Centi used them for her own benefit. By 2012, K. was unable to
support herself and her education had been undermined since she had to work two jobs
and do babysitting.
       Based on these allegations, Chaudhary asserted causes of action for fraud,
constructive fraud, and intentional infliction of emotional distress. Chaudhary stated that
his action was timely filed because he did not discover Centi’s wrongdoing until he was
able to speak with K. in January 2012.
       D. Motion for Judgment on the Pleadings
       Centi answered the complaint and filed a motion for judgment on the pleadings.
Her motion was accompanied by a request for judicial notice of the federal court records
in Chaudhary v. O’Neil, supra, No. C-93-20967, and Chaudhary v. O’Neil, supra, 70
F.3d 1277. Centi also requested judicial notice of several other documents, including
various state court records and the reporter’s transcript of the proceedings held in K.’s
juvenile dependency action (In re K., supra, No. 91473) on February 27, 1989 and
May 13, 1989.
       In her points and authorities, Centi argued that Chaudhary’s fraud causes of action
were barred under the three-year statute of limitations set forth in section 338,
subdivision (d). She asserted that when Chaudhary’s 1993 federal complaint was
compared with the 2012 complaint filed in this action, it was apparent that Chaudhary
had made the same allegations of “fraud, deceit, abuse, alienation, and money
squandering” against Centi in 1993 and therefore his state court action should have been

                                              6
filed no later than 1996. For the same reason, Centi argued that the cause of action for
intentional infliction of emotional distress was time-barred under the two-year statute of
limitations provided by section 335.1 for personal injury actions.
          Additionally, Centi contended that Chaudhary’s state court action was barred
under the doctrine of res judicata since his claims had been found to be meritless due to
the dismissal of his federal court action against Centi and the denial of relief in his state
court challenges to the termination of his parental rights. Centi also contended that
Chaudhary lacked standing because his claims were based solely on the harm allegedly
suffered by K.
          Chaudhary opposed the motion for judgment on the pleadings, arguing that his
complaint was timely filed because the complaint’s allegations must be accepted as true
and therefore the statute of limitations did not begin to run until 2012, when he learned
during his meeting with K. that Centi had failed to keep her promises. Chaudhary also
argued that the 1993 federal complaint did not show that he had discovered facts or
evidence to support his claims at that time. He maintained that it is question of fact as to
whether he was placed on notice in 1993 that Centi had engaged in fraud, which cannot
be resolved at the pleading stage.
          Chaudhary rejected the other two grounds for judgment on the pleadings argued
by Centi in her motion. He argued that his federal and state causes of action alleged
different causes of action and therefore the doctrine of res judicata could not apply. As to
standing, Chaudhary asserted that he had standing to claim that Centi’s fraud caused him
to give up his parental rights and suffer emotional distress.
          E. Trial Court Order
          The trial court granted Centi’s motion for judgment on the pleadings without leave
to amend in its March 12, 2013 order. The court also granted her request for judicial
notice.



                                               7
       Regarding judicial notice, the trial court stated that although the court did not take
judicial notice of the truth of the allegations in the 1993 federal complaint, “the Court
may take note of those allegations for purposes of comparison with the present Complaint
to determine if the statute of limitations has run on the claims made in the present
Complaint.” The court also determined that the reporter’s transcript of the 1989 juvenile
dependency proceedings “demonstrates [Chaudhary’s] express acknowledgment in court
in 1989 that no promises were being made to him as part of his voluntary relinquishment
of parental rights and [Chaudhary’s] understanding that [Centi] was under no obligation
to him, did not owe him any duty of care and that specific matters of concern to
[Chaudhary] regarding his biological daughter’s upbringing would be completely within
the discretion of [Centi] once [he] relinquished his parental rights.” However, the court
found that the judicially noticed court records did not establish that the present action was
barred under the doctrine of res judicata.
       The trial court granted the motion for judgment on the pleadings on the grounds
that the judicially noticeable material showed that each cause of action in the complaint
was time-barred. The court found that “[t]he judicially noticeable material, in particular
[Chaudhary’s] 1993 federal complaint (making nearly identical allegations) and the
transcripts of the court hearings in 1989 (where [Chaudhary] acknowledged that no
promises were being made to him in relation to his voluntary relinquishment of parental
rights and that [Centi] was under no obligation to [him]) [to] establish that [Chaudhary]
was aware of the basis for each of his claimed injuries and causes of action by no later
than December 20, 1993 and all three claims were time barred long before his present
Complaint was filed on July 10, 2012.” The trial court further determined that
Chaudhary’s allegations were “not sufficiently specific” to toll the statute of limitations
under the delayed discovery rule.
       The trial court denied leave to amend the complaint, finding that Chaudhary could
not amend his complaint to further allege delayed discovery because such allegations

                                              8
would be inconsistent with the judicially noticed facts showing that Chaudhary was
aware of the alleged factual basis for his claims at the time he filed his federal complaint.
Leave to amend was also denied because Chaudhary’s fraud allegations were
“completely contradicted by his stated understandings and admissions as to the scope and
consequences of his voluntary relinquishment of parental rights on the record at the [1989
juvenile dependency] hearings.”
       Finally, the trial court concluded as a matter of law, based on the 1989 reporter’s
transcripts of the juvenile dependency proceedings, that any emotional distress that
Chaudhary suffered as a result of relinquishing his parental rights “was proximately
caused by his own voluntary act.”
       A judgment in Centi’s favor was entered on April 5, 2013. Chaudhary
subsequently filed a timely notice of appeal from the judgment.
                                     III. DISCUSSION
       On appeal, Chaudhary argues that the trial court erred in granting the motion for
judgment on the pleadings on statute of limitations grounds because the complaint’s
allegations show that the action was timely filed in July 2012, since he was not aware of
the facts putting him on notice that Centi had broken her promises until he met with K. in
January 2012. Alternatively, Chaudhary argues that the trial court abused its discretion in
denying leave to amend the complaint. We will begin our analysis with the applicable
standard of review.
       A. Standard of Review
       “Since 1994, motions for judgment on the pleadings have been authorized by
statute. (Stats. 1993, ch. 456, § 5, pp. 2524-2527, adding . . . § 438; Stats. 1994, ch. 493,
§ 2, amending . . . § 438.) Previously, they were allowed by common law. [Citations.]
Generally, as such motions were, so they remain.” (Gerawan Farming, Inc. v. Lyons
(2000) 24 Cal.4th 468, 482, fn.2.)



                                              9
       “ ‘A motion for judgment on the pleadings, like a general demurrer, tests the
allegations of the complaint or cross-complaint, supplemented by any matter of which the
trial court takes judicial notice, to determine whether plaintiff or cross-complainant has
stated a cause of action. [Citation.] Because the trial court’s determination is made as a
matter of law, we review the ruling de novo, assuming the truth of all material facts
properly pled.’ [Citation.]” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160,
166; see also Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592,
602.) Since a motion for judgment on the pleadings serves the same function as a
demurrer, judgment on the pleadings may be properly granted on the ground that the
action is time-barred under the applicable statute of limitations. (See Fireman’s Fund
Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1150-1151.)
       B. Statute of Limitations
       The California Supreme Court has established the rules governing the affirmative
defense of the statute of limitations. A statute of limitations prescribes the period
“beyond which a plaintiff may not bring a cause of action. [Citations.]” (Fox v. Ethicon
Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox).) It “strikes a balance among
conflicting interests. If it is unfair to bar a plaintiff from recovering on a meritorious
claim, it is also unfair to require a defendant to defend against possibly false allegations
concerning long-forgotten events, when important evidence may no longer be available.”
(Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797.)
       A statute of limitations may be “tolled when a plaintiff is a minor or has
disabilities or when a defendant is absent from the jurisdiction or in other comparable
situations. [Citations.]” (Don Johnson Productions, Inc. v. Rysher Entertainment, LLC
(2012) 209 Cal.App.4th 919, 934.) Although overlooked by the parties, we note that
section 352.1 provides for limited tolling of the statute of limitations when the plaintiff is
incarcerated.



                                              10
       “Former section 352, subdivision (a)(3) provided that the statute of limitations was
tolled if plaintiff, at the time of accrual of the claim, was ‘imprisoned on a criminal
charge, or in execution under the sentence of a criminal court for a term less than for
life . . . .’ [¶] Effective January 1, 1995, the Legislature amended section 352 to delete
the tolling provision and added section 352.1 to limit the tolling period to two years.
(§ 352, as amended by Stats. 1994, ch. 1083, § 1, p. 6465.)” (Carlson v. Blatt (2001) 87
Cal.App.4th 646, 649 (Carlson).)
       Section 352.1, subdivision (a) provides: “If a person entitled to bring an action,
mentioned in Chapter 3 (commencing with Section 335), is, at the time the cause of
action accrued, imprisoned on a criminal charge, or in execution under the sentence of a
criminal court for a term less than for life, the time of that disability is not a part of the
time limited for the commencement of the action, not to exceed two years.” (Italics
added.) “The Legislature, in enacting section 352.1, declared that it ‘intends to limit the
ability to bring lawsuits by prisoners when the facts that give rise to the lawsuit are old,
and difficult to prove or disprove.’ (§ 352.1, as amended by Stats. 1994, ch. 1083, § 1,
p. 6465.)” (Carlson, supra, 87 Cal.App.4th at p. 649; see also Belton v. Bowers
Ambulance Service (1999) 20 Cal.4th 928, 930-931 [§ 352.1 is a tolling provision];
Rose v. Hudson (2007) 153 Cal.App.4th 641, 656 [§ 352.1 places a two-year limit on
tolling due to incarceration]; Deutch v. Hoffman (1985) 165 Cal.App.3d 152, 156 [no
tolling occurs when the plaintiff is on parole].)
       In the present case, Chaudhary contends that the trial court erred in finding that the
judicially noticed state and federal court records show that Chaudhary’s complaint was
time-barred under the applicable statutes of limitation. We therefore turn to an overview
of the pertinent rules governing judicial notice of court records.
       C. Judicial Notice
       Evidence Code section 452, subdivision (d) authorizes judicial notice of court
records. “ ‘The court may in its discretion take judicial notice of any court record in the

                                               11
United States. [Citation.] This includes any orders, findings of facts and conclusions of
law, and judgments within court records. [Citations.] However, while courts are free to
take judicial notice of the existence of each document in a court file, including the truth
of results reached, they may not take judicial notice of the truth of hearsay statements in
decisions and court files.’ [Citation.]” (In re Vicks (2013) 56 Cal.4th 274, 314.)
       In addition, “[b]oth trial and appellate courts may properly take judicial notice of a
party’s earlier pleadings and positions as well as established facts from both the same
case and other cases. (Evid. Code, § 452; . . . § 430.70; [Citations.].) The complaint
should be read as containing the judicially noticeable facts, ‘even when the pleading
contains an express allegation to the contrary.’ [Citation.] A plaintiff may not avoid a
demurrer by pleading facts or positions in an amended complaint that contradict the facts
pleaded in the original complaint or by suppressing facts which prove the pleaded facts
false. [Citation.] Likewise, the plaintiff may not plead facts that contradict the facts or
positions that the plaintiff pleaded in earlier actions or suppress facts that prove the
pleaded facts false. [Citation.]” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th
857, 877 (Cantu).)
       We next consider the merits of Centi’s motion for judgment on the pleadings as to
each cause of action in Chaudhary’s complaint.
       D. Fraud and Constructive Fraud
       On appeal, Chaudhary argues that his causes of action for fraud and constructive
fraud6 are not time-barred because the court erred in taking judicial notice of the truth of
statements in court records, and must instead accept as true the allegations in his
complaint that he did not discover the facts putting him on notice of Centi’s broken


       6
         “ ‘Constructive fraud “arises on a breach of duty by one in a confidential or
fiduciary relationship to another which induces justifiable reliance by the latter to his [or
her] prejudice.” [Citation.]’ ” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223
Cal.App.4th 1105, 1131.)

                                             12
promises until he met with K. in January 2012. Alternatively, Chaudhary claims that he
could not investigate the facts supporting his fraud causes of action because he was
incarcerated.
       Centi responds that the trial court correctly ruled that Chaudhary’s action was
barred by the applicable statutes of limitation because the allegations in Chaudhary’s
1993 federal complaint show that he had sufficient information to suspect a factual basis
for his fraud claims at that time, and therefore the limitations period commenced in 1993.
We agree that Chaudhary’s fraud causes of action are barred by the applicable statutes of
limitation.
       The limitations period for a cause of action for fraud is three years. (§ 338,
subds. (a) & (d).). Section 338, subdivision (d) provides: “An 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.”
       The California Supreme Court has ruled that the limitations period for a fraud
cause of action commences when the plaintiff discovers or reasonably should have
discovered the facts constituting the fraud. (Miller v. Bechtel Corp. (1983) 33 Cal.3d
868, 873 (Miller) [construing former § 338, subdivision (4), now (d)].) Further, “[i]n
order to adequately allege facts supporting a theory of delayed discovery, the plaintiff
must plead that, despite diligent investigation of the circumstances of the injury, he or she
could not have reasonably discovered facts supporting the cause of action within the
applicable statute of limitations period.” (Fox, supra, 35 Cal.4th at p. 809.)
       Our Supreme Court has also instructed that the word “discovery” in section 338,
subdivision (d) “is not synonymous with actual knowledge. [Citation.] ‘The statute
commences to run . . . after one has knowledge of facts sufficient to make a reasonably
prudent person suspicious of fraud, thus putting him [or her] on inquiry.’ ” (People v.
Zamora (1976) 18 Cal.3d 538, 561-562 [construing former section 338, subdivision (4),

                                             13
now (d); see also Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221
Cal.App.3d 1049, 1056-1057 [judicial notice properly taken of allegations in prior
action’s complaint showing that the plaintiff homeowners association had notice of
structural defects at an earlier time].)
       We have properly taken judicial notice of the 1993 complaint in Chaudhary’s
federal action (Chaudhary v. O’Neil, supra, No. C-93-20967), keeping in mind that
Chaudhary may not plead facts in the present action that contradict the facts or positions
that he alleged in the federal complaint, and may not suppress facts that prove the pleaded
facts false. (See Cantu, supra, 4 Cal.App.4th at pp. 877-878.) Having reviewed both the
complaint in the present action and Chaudhary’s 1993 federal complaint, we find that the
allegations in the federal complaint show that Chaudhary discovered the facts underlying
his fraud claims against Centi no later than 1993.
       In the 1993 federal complaint, Chaudhary alleged that he had relinquished his
parental rights to K. under duress and that K. “was given for adoption to an unwed
woman [Centi] who had no children and had no experties [sic] in parenting a Hindu child.
False assurances were given that [Chaudhary] would maintain contacts with his
daughter. False assurances were given that religious and cultural education and exposure
will be provided to [K.] in her own Hindu faith and culture.” (Italics added.) Chaudhary
also alleged that after Centi adopted K., she failed to provide K. with Hindu religious and
cultural education, and “prey[ed] on the child in order to gain controll [sic] over the child
and [the] child’s large inheritance.” (Italics added.)
       In the July 2012 complaint in the present action, Chaudhary alleges that he learned
for the first time in 2011 that Centi had treated K. poorly. He then allegedly learned in
January 2012, after meeting with K. and her therapist, that Centi had failed to keep her
promises to encourage K. to maintain contact with him and to provide K. with exposure
to her own religion and culture, and had also used money for her own benefit that was
owed to K. from insurance proceeds and her mother’s estate. Chaudhary further alleges

                                             14
that Centi made these promises “to get [Chaudhary] to waive his parental rights and allow
[Centi] to adopt his Child.”
       Our comparison of the two complaints shows that Chaudhary has made essentially
the same factual allegations regarding Centi’s wrongdoing in his 1993 federal complaint
and in his complaint in the present action: that Centi made specific promises to him that
were false (that K. would maintain contact with Chaudhary and be exposed to Hindu
religion and culture) for the purpose of inducing Chaudhary to relinquish his parental
rights and to allow her to adopt K., and for the additional purpose of obtaining monies
owed to K. for herself. Chaudhary’s allegations in his complaint in the present action—
that he did not discover until 2012 that Centi had broken these promises—therefore
directly contradicts his prior factual allegations in the 1993 federal complaint that he was
aware in 1993 that Centi’s promises were false.
       Under the principle of truthful pleading, “[w]hen the plaintiff pleads inconsistently
in separate actions, the plaintiff’s complaint is nothing more than a sham that seeks to
avoid the effect of a demurrer. [Citations.] Under such circumstances, the court will
disregard the falsely pleaded facts and affirm the demurrer.” (Cantu, supra, 4
Cal.App.4th at pp. 877-878.) Since a motion for judgment on the pleadings serves the
same function as a demurrer, we may disregard the allegations in the complaint in the
present action that Chaudhary did not discover that Centi had broken her promises
about K. until 2012.
       Accordingly, we determine that the judicially noticeable factual allegations in the
federal complaint show that Chaudhary discovered the facts constituting Centi’s alleged
fraud no later than 1993, when he filed the federal complaint. (See Miller, supra, 33
Cal.3d at p. 873.) The three-year limitations period provided by section 338,
subdivision (d) for a fraud claim therefore began to run in 1993. Under section 352.1,
subdivision (a), the three-year limitations period was tolled for two years due to
Chaudhary’s incarceration. (See Carlson, supra, 87 Cal.App.4th at p. 650 [under § 352.1

                                             15
claims that accrued before January 1, 1995 are tolled for two years from accrual, or until
January 1, 1995, whichever occurs later].)
       With the two-year tolling period included, the limitations period for Chaudhary’s
fraud claims against Centi was five years from the commencement of the section 338,
subdivision (d) limitations period in 1993. The limitations period therefore expired in
1998. Since Chaudhary did not file the complaint in the present action until 2012, we
conclude that the fraud causes of action are time-barred and judgment on the pleadings
was properly granted.
       E. Intentional Infliction of Emotional Distress
       In his cause of action for intentional infliction of emotional distress, Chaudhary
alleges that Centi’s failure to keep her promises regarding K. caused him to suffer
“extreme mental anguish and emotional and physical distress.” Centi argues that the
cause of action is time-barred because Chaudhary alleged intentional infliction of
emotional distress in his 1993 federal complaint.
       The two-year statute of limitations set forth in section 335.17 applies to a cause of
action for intentional infliction of emotional distress. (Pugliese v. Superior Court (2007)
146 Cal.App.4th 1444, 1450.) “A cause of action for intentional infliction of emotional
distress accrues, and the statute of limitations begins to run, once the plaintiff suffers
severe emotional distress as a result of outrageous conduct on the part of the defendant.
[Citation.]” (Cantu, supra, 4 Cal.App.4th at p. 889; see also Kisekey v. Carpenters’ Trust
for So. California (1983) 144 Cal.App.3d 222, 232.)
       Chaudhary did not address that portion of the trial court’s order granting judgment
on the pleadings as to the cause of action for intentional infliction of emotional distress in
his opening and reply briefs. He has therefore forfeited any issue as to that cause of

       7
         Section 335.1 provides: “Within two years: An action for assault, battery, or
injury to, or for the death of, an individual caused by the wrongful act or neglect of
another.”

                                              16
action. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d
211, 216, fn. 4; Sanchez-Scott v. Alza Pharmaceuticals (2001) 86 Cal.App.4th 365, 368.)
Even assuming the issue is not forfeited, we would find that the trial court did not err in
granting judgment on the pleadings.
       In his 1993 federal complaint, Chaudhary expressly sought damages for the
emotional distress caused by Centi’s wrongdoing in connection with K. The cause of
action for intentional infliction of emotional distress therefore accrued, and the
limitations period of two years provided by section 335.1 began to run, in 1993. (See
Cantu, supra, 4 Cal.App.4th at p. 889.) Since the section 335.1 limitations period was
tolled for two years under section 352.1 due to Chaudhary’s incarceration, the limitations
period was increased to four years and expired in 1997. The cause of action for
intentional infliction of emotional distress included in Chaudhary’s 2012 complaint in the
present action was therefore time-barred and the trial court properly granted judgment on
the pleadings.
       F. Leave to Amend
       Finally, Chaudhary contends that the trial court erred in denying him leave to
amend his complaint. Chaudhary argues that he could amend the complaint to cure any
defect by adding the allegations “that at the time that he brought [the 1993 federal]
complaint, he was incarcerated and had no ability to discover a factual basis for his
claims. The 1993 [federal] complaint was based on mere suspicions, without any factual
basis to support [his] claims.” Chaudhary would also amend the complaint by alleging
that he could not determine that Centi had breached the promises she made to him
regarding K. “until he made contact with his daughter.”
       Centi disagrees. She argues that the trial court properly determined that
Chaudhary would not be able to amend his complaint to avoid the judicially noticeable
facts that Chaudhary has made substantially the same claims in the present action that he



                                             17
made in his 1993 federal complaint, which shows that Chaudhary was aware of the basis
for his claims in 1993.
       The rules governing leave to amend are well established. “When a general
demurrer is sustained or a motion for judgment on the pleadings is granted, the plaintiff
must be given leave to amend his or her complaint when there is a reasonable possibility
that the defect can be cured by amendment. [Citations.] ‘The burden of proving such
reasonable possibility is squarely on the plaintiff.’ [Citation.] [¶] ‘To satisfy that burden
on appeal, a plaintiff “must show in what manner he [or she] can amend his [or her]
complaint and how that amendment will change the legal effect of his [or her] pleading.”
[Citation.] The assertion of an abstract right to amend does not satisfy this burden.’
[Citation.]” (Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, 95.)
       Moreover, “leave to amend need not be granted if any possible amendment would
inevitably be barred by the statute of limitations.” (Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 1011.) That is the situation in the present case. The
amendments proposed by Chaudhary would not change the legal effect of his allegations
in the 1993 federal complaint, which, as we have determined, show that Chaudhary
discovered the facts underlying his fraud claims against Centi no later than 1993 and also
suffered emotional distress caused by Centi’s alleged wrongdoing in 1993. In other
words, the proposed amendments are not sufficient to demonstrate that the complaint in
the present action was timely filed within the applicable statutes of limitation.
       We therefore determine that the court did not abuse its discretion in denying
Chaudhary leave to amend the complaint. Having also determined that the trial court
properly granted Centi’s motion for judgment on the pleadings on the ground that the
action is time-barred under the applicable statutes of limitation, we will affirm the
judgment in Centi’s favor. Since we have affirmed judgment on the pleadings on the
statute of limitations issue, we need not address the issues Centi raises regarding standing
and the application of the doctrine of res judicata.

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                          IV. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.
