Unpublished Disposition, 931 F.2d 897 (9th Cir. 1986)

No. 90-55396.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and REINHARDT, Circuit Judges, and KING,^*  District Judge.

MEMORANDUM^** 

In this case the plaintiff-appellant seeks to try numerous claims arising out of the defective nature of the pipe that it used in an extensive sewer system. The district court dismissed the complaint on statute of limitations grounds, holding that the plaintiff knew or reasonably should have known of its claims years before the suit was filed. We agree with the district court and with the reasons given in its decision.

There are only two issues which merit further comment. The first is the appellant's claim that the district court's statement as to when the claims accrued does not render the claim for breach of warranty untimely. The district court concluded that all of the claims accrued no later than September of 1982. The appellant filed this action on June 16, 1986. Taking 1982 as the date of accrual, the claims for fraud, negligence and strict liability would be time barred because each has a two year statute of limitations. The fourth claim, alleging breach of express warranty, has a four year statute of limitations. Thus, even if it accured in 1982, it would not be time barred unless it accrued before June 16 of that year.

We may affirm the district court's grant of summary judgment on any basis supported by the record, provided that the parties have had an opportunity to brief the court on the basis ultimately chosen for affirmance. Lakeview Dev. Corp. v. City of S. Lake Tahoe, 915 F.2d 1290, 1299 (9th Cir. 1990). In their briefs on this appeal, the parties have discussed the possibility of affirmance based upon a finding that the claim for breach of express warranty actually accrued on or before June 15, 1982. We may therefore consider whether the breach of express warranty claim is time barred despite the fact that the district court's findings are inconclusive as to this claim.

We find no evidence in the record from which the district court could have concluded that the appellant did not know of its injuries and their causes before June 15, 1982. Appellant received the report that put it on notice of the defects in the pipes in January of 1980, and admitted, in response to interrogatories, that it recognized a "consistency or pattern of failures" some time between 1978 and 1980. The record thus fully supports affirmance of the district court's grant of summary judgment on the claim for breach of express warranty, based on an accrual date of no later than June 15, 1982.

The second issue is the question of fraud. The appellant relies upon the California appellate decision in Snow v. A.H. Robins Co., Inc., 165 Cal. App. 3d 120, 211 Cal. Rptr. 271 (1985), for its contention that even if its other claims are barred by the statute of limitations, its claim for fraudulent misrepresentation is not barred. In Snow, the Court of Appeal held that the statute of limitations on a fraud claim brought by an individual, based upon misrepresentations concerning the failure rate of a contraceptive device manufactured by the defendant, began to run when she learned that the representations were actually false. Because she acquired this knowledge long after the actual injury she suffered from the product's failure, the court allowed her fraud claim to go forward despite the fact that her other claims arising from that injury were time barred.

The appellants ask us to hold that, under Snow, the statute of limitations did not begin to run as to its claim of misrepresentation until it learned from its own counsel that the pipe was in fact made with Elmer's Glue, a water soluble substance that could not possibly have lasted for the promised fifty years. Snow, however, involved an individual plaintiff who learned through a television broadcast that the manufacturer of the birth control device that injured her had known of its widespread failure at the time she purchased it. To have discovered the inaccuracy of the failure rate quoted to her, she would have had to gain access to the medical records of all women using that device. Snow thus did not involve a situation where, as here, the plaintiff could have discovered the inaccuracy of the representation simply by examining the product. Nor does the record explain why appellant did not seek earlier advice from counsel on any of its claims.

We do not believe that the Supreme Court of California would hold, in a case involving an institutional plaintiff that has constant dealings with counsel and possesses significantly greater investigative resources than the individual whose claim was at stake in Snow, that the statute of limitations did not begin to run until the plaintiff was specifically alerted to the misrepresentation. Accordingly, we agree with the district court that the appellant's claims of fraud are also time barred.

AFFIRMED.