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JAMES L. McGILL, et al., Plaintiffs and Appellants, v. M. J. BROCK & SONS, INC., Defendant and Respondent.

[Modification of opinion (76 Cal.App.4th 1396) on denial of petition for rehearing.]

McKINSTER, J.-The applications of Boeing North American, Inc., and Lockheed Martin Corporation for leave to file amicus curiae briefs in support of the petition for rehearing by M. J. Brock & Sons, Inc., are GRANTED.

The petition for rehearing of M. J. Brock & Sons, Inc., is DENIED.

The opinion filed in this case on December 15, 1999, is MODIFIED in the following respects:

First modification: Add the following paragraph to the end of footnote 2 on page 4:

In its petition for rehearing, Brock argues that the plaintiffs' complaint is deficient because it does not adequately allege that the plaintiffs were unaware of facts that would have given rise to a duty of inquiry. We do not consider that issue because the alleged insufficiency of the plaintiffs' complaint was not raised in Brock's brief. "[P]oints made for the first time on petition for rehearing will not be considered." (A. F. Estabrook Co. v. Industrial Acc. Com. (1918) 177 Cal. 767, 771; Bank of America v. Superior Court (1990) 220 Cal. App. 3d 613, 626, fn. 6; County of Sacramento v. Loeb (1984) 160 Cal. App. 3d 446, 459-460, fn. 5.) Our resolution of the points that were timely raised is [78 Cal. App. 4th 169b] without prejudice to Brock raising that new issue in the trial court by a motion for judgment on the pleadings.

Second modification: Replace the first full sentence on page 10 with the following: In short, regardless of the contents of public records, the statutory period does not begin to run until the plaintiffs either have actual knowledge of suspicious circumstances creating a duty of inquiry, or at least receive actual notice of those circumstances.

Third modification: Add the following footnote to the end of the paragraph ending on the fifth line of page 10:

For the same reasons, we decline to follow the case raised by Brock in its petition for rehearing, McKelvey v. Boeing North American, Inc. (1999) 74 Cal. App. 4th 151, to the extent that it may stand for the proposition that the means of obtaining actual knowledge is always equivalent to actual knowledge.

The amici supporting Brock's petition for rehearing note that the Supreme Court has applied an arguably different delayed-discovery rule in other contexts. (Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, 1109 [common law exception to Code Civ. Proc., § 340, subd. (3), regarding claims for personal injuries]; Sanchez v. Hoover Hospital (1976) 18 Cal. 3d 93, 101 [statutory discovery rule in Code Civ. Proc., § 340.5, governing claims for medical malpractice].) But those cases neither deal with the statutory discovery rule at issue here (Code Civ. Proc., § 338, subd. (d)) nor criticize the holdings of the Supreme Court cases that do (Vai v. Bank of America, supra, 56 Cal. 2d 329; Hobart v. Hobart Estate Co., supra, 26 Cal.2d 412). Unless and until Vai and Hobart are overruled, we must follow them.

Fourth modification: Replace the last sentence in the first full paragraph on page 11 with the following: We reject that analysis for several alternative reasons.

Fifth modification: Replace the last full paragraph on page 12 and the first sentence of the paragraph beginning at the bottom of that page with the following:

Second, even were we to overlook the omission of any mention of the newspaper articles from Block's statement of undisputed facts, the articles [78 Cal. App. 4th 169c] cannot be considered unless we may properly grant Block's request that we take judicial notice of them. It is unclear whether the facts that particular newspapers published articles on particular subjects on particular dates are either "of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute" (Evid. Code, § 452, subd. (g)) or "are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy" (id., subd. (h)). (Compare People v. Massie (1998) 19 Cal. 4th 550, 566, fn. 4 [refusing to take judicial notice of newspaper articles] and People v. Ramos (1997) 15 Cal. 4th 1133, 1167 [affirming refusal to take judicial notice] with Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 408 [taking judicial notice that a "controversy" had arisen in the popular press, without specifying the media involved], People v. Hardy (1992) 2 Cal. 4th 86, 174, fn. 24 [taking judicial notice of newspaper articles], and People v. Jurado (1981) 115 Cal. App. 3d 470, 482 [same].)

We need not resolve those conflicting decisions because even if we were to take judicial notice of the newspaper articles, there is no evidence that any of the plaintiffs read any of those articles or even received any of those newspapers.

Except for the express modifications set forth above, the opinion previously filed remains unchanged. In particular, the modifications do not affect the disposition.

Ramirez, P.J., and Gaut, J., concurred.