MANGINI v. AEROJET GENERAL CORPORATION (1991)

In this case, we consider a variety of issues arising out of claims by owners of real property against parties who leased the property from prior owners and who allegedly contaminated the property with hazardous waste during the leasehold.¹

The Mangini family, owners of 2400 acres of land in Sacramento County, filed suit against Aerojet–General Corporation and its wholly-owned subsidiary Cordova Chemical Company (hereafter collectively defendant), lessees of the property before the Manginis acquired it, for allegedly contaminating the property with hazardous waste.   Defendant's demurrer to the multi-count complaint was sustained without leave to amend.   Because we conclude some of Mangini's counts should survive demurrer, we shall reverse the judgment of dismissal.

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules.  ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  [Citation.]  We also consider matters which may be judicially noticed.’  [Citation.]  Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.   [Citation.]  When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.  [Citation.]  And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment:  if it can be, the trial court has abused its discretion and we reverse;  if not, there has been no abuse of discretion and we affirm.  [Citations.]  The burden of proving such reasonable possibility is squarely on the plaintiff.  [Citation.]”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

The complaint, filed January 14, 1998, alleges the following material facts:

Defendant leased the property in question from its former owners, the Cavitts, from 1960 to 1970.   Plaintiff Catherine Holthouse Mangini and Mark Vernon Holthouse acquired the property pursuant to an exchange of other real property from the executor and administrator of the Cavitts' estate, codefendant James H. Cavitt, in 1975.²

Defendant's lease (attached to the complaint as an exhibit) provided, “The term of this lease is for a period of ten (10) years, commencing [in 1960] and ending [in 1970]․”  The lease also stated, among other things, defendant would return the land to the lessor in as good state and condition as when defendant received it.³  Despite this provision, defendant failed to remove millions of pounds of waste rocket fuel materials and other hazardous substances which it burned, buried, or otherwise disposed of on the property during the term of its lease, creating hazardous conditions which remain on the property.

Plaintiffs have been compelled by the Sacramento County Air Pollution Control District to undertake testing of the property and may be required under state and federal law to abate the hazardous conditions created by defendant.

Plaintiffs did not learn of the hazardous conditions until “recently.”

Based on these alleged facts plaintiffs pleaded nine “causes of action” against defendant:

Creation of a public nuisance (first count);

Creation of a private nuisance (second count);

Negligence (third count);

Negligence per se, based on the contention that defendant's activities violated Health and Safety Code section 25601 (requiring the safe disposal of radioactive waste), Water Code sections 13304, 13264, and 13265 (requiring the cleanup and abatement of waste discharges into the waters of the state, and prohibiting the discharge of any waste that could affect the quality of the waters of the state, including groundwaters), and Order No. 62–21 of the Regional Water Quality Control Board (requiring defendant to dispose of all waste discharges originating on its leased properties so as to avoid creating harmful concentrations of waste in usable groundwaters) (fourth count);

Trespass, based on the contention that defendant failed to remove the hazardous wastes after plaintiffs acquired the property (fifth count);

Strict liability for ultrahazardous activities (sixth count);

Violation of Business and Professions Code section 17200 (prohibiting unfair or unlawful business practices) (ninth count);

Equitable indemnity for testing and clean-up costs incurred by plaintiffs at the direction of governmental entities (tenth count);  and

Declaratory relief with respect to the parties' obligations for testing and clean-up costs (eleventh count).

Defendant demurred to all the “causes of action” on the grounds they failed to state facts sufficient to constitute a cause of action and were barred by the statute of limitations.   The trial court sustained the demurrer without leave to amend on those grounds.   This appeal followed.

DISCUSSION

IThe Lease Did Not Contain Covenants or Equitable Servitudes Running With the Land Beyond the Term of the Lease.

 Defendant contends plaintiffs have failed to state facts sufficient to constitute a cause of action as to any count because defendant's lease with the Cavitts created a covenant running with the land or equitable servitude and binding plaintiffs, as successors in interest to the Cavitts, to acquiesce in any condition created by defendant's activities.   We disagree.

“Certain covenants, contained in grants of estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them.   Such covenants are said to run with the land.”  (Civ.Code, § 1460.)

Defendant seeks to rely on certain language taken from paragraphs 11 and 15 of the lease.   Paragraph 11 provides in part:  “Lessors [the Cavitts] hereby covenant that they will acquiesce in any nuisance or hazard caused by Lessee [defendant] on the premises.”   Paragraph 15 provides in part:  “Each and every covenant and agreement herein contained shall inure to the benefit of and shall be binding upon the executors, administrators, successors and assigns of the parties hereto․”  Assuming for the sake of argument these terms constitute a valid covenant binding the Cavitts and any successors and assigns under the lease to acquiesce in any and all activities of defendant on the leased property, they can have no power to bind plaintiffs, who took the property after the lease had expired.

It is settled that covenants in a lease may run with the land to bind the successors or assigns of lessor or lessee during the term of the lease.⁴  (See, e.g., Standard Oil Co. v. Slye (1913) 164 Cal. 435, 443, 129 P. 589;  Coburn v. Goodall (1887) 72 Cal. 498, 503, 14 P. 190;  Salisbury v. Shirley (1884) 66 Cal. 223, 227, 5 P. 104;  see also Hudson Oil Co. v. Shortstop (1980) 111 Cal.App.3d 488, 497, 168 Cal.Rptr. 801 [covenant in lease enforced as equitable servitude].)

However, it is equally clear that “A covenant may be extinguished by a number of methods, including expiration of the specified period, ․”  (4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 486, p. 664;  see Diederichsen v. Sutch (1941) 47 Cal.App.2d 646, 118 P.2d 863;  Rest., Property, § 554;  Note, Covenants and Equitable Servitudes in California (1978) 29 Hastings L.J. 545, 586.)   Here “the specified period” for which promises made under the lease were intended to operate can reasonably be understood only as the term of the lease.  “The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.”  (Civ.Code, § 1641.)

The lease fails to include covenants running with the land because it does not envision that either of the parties will do, or refrain from doing, acts after the expiration of the lease.   Rather, the lease defines the permissible uses of the land during the lease term.   Thus, paragraph 15 of the lease, making it binding upon the successors, assigns, etc. of the parties, is explicable as language necessary to bind any successors, assigns, etc. during the lease term.  (See e.g., Hudson Oil Co. v. Shortstop, supra, 111 Cal.App.3d at p. 496, 168 Cal.Rptr. 801.)

Even the lessee's promise to restore the premises is a promise to be undertaken during the term of the lease.   In this respect, the instant lease is different from that at issue in Washburn v. A.F. Gilmore Co. (1931) 116 Cal.App. 370, 2 P.2d 506.   There, an oil lease provided, “ ‘On the expiration of this lease, or sooner termination thereof, lessee shall quietly and peaceably surrender possession of the premises to the lessors, and shall, as far as possible, cover up all sump holes and excavations made by it, and restore the land as nearly as possible to the condition in which it was received.’ ”  (Id. at pp. 371–372, 2 P.2d 506.)   The trial court concluded an assignee of the lessee was responsible for covering up the sump holes and the assignee appealed.   The Court of Appeal concluded, “The obligation on the part of the lessee and its assignees to ‘cover up all sump holes,’ etc., accrued only ‘on the expiration of the lease;’—in other words, the duty to ‘cover up all sump holes' devolved upon the lessee or its assignees at the same instant of time that the lease expired, or contemporaneously therewith;  and the fact that from a practical standpoint the work of filling the sump holes could not be instantly executed should not relieve appellants from performance.   Concededly the relation of privity of estate existed between the lessor and appellants, and as the covenant in question was one which was ‘made for the direct benefit of the property’ (sec. 1462, Civ.Code), it ran with the land.   In such circumstances, even in the absence of an express assumption by appellants of the covenant ‘on the expiration of this lease, ․ to cover up all sump holes', etc., upon their acceptance of the assignment of the lease as made, an implied agreement was created on the part of such assignees to be bound by such covenant.”  (Id. at pp. 373–374, 2 P.2d 506.)

We need not sort out whether Washburn may have confused covenants running with the land with implied contracts, because here the lease provides, “Upon termination of this lease, Lessee shall surrender the premises in as good state and condition as when received by Lessee, reasonable use and wear thereof consistent with the business engaged in by Lessee ․ excepted.”   This clause, unlike that at issue in Washburn, envisions that work necessary to restore the premises will be undertaken before termination of the lease.

Nothing in the lease suggests the parties intended to create promises or covenants surviving the term of the lease and running with the land.

 Nor did the lease create equitable servitudes enforceable by defendant.  “[I]n the absence of the essential requirements of a covenant, equity will in an appropriate case, enforce the restriction, though it is of a personal nature against the covenantor's transferee who took the burdened land with notice and knowledge of the terms of the use restrictions.   [Citations.]”  (Hudson Oil Co. v. Shortstop, supra, 111 Cal.App.3d at pp. 493–494, 168 Cal.Rptr. 801;  see 4 Witkin, op. cit. supra, § 493, p. 670.)   An equitable servitude therefore requires that the land be burdened or restricted.   At a minimum, this requires that the creators of a covenant asserted as an equitable servitude state in writing their intent that the covenant shall burden the land, so as to be binding on the creators' successors.  (See Wing v. Forest Lawn Cemetery Assn. (1940) 15 Cal.2d 472, 483, 101 P.2d 1099;  Werner v. Graham (1919) 181 Cal. 174, 183, 183 P. 945;  Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536, 1545, 253 Cal.Rptr. 344;  Trahms v. Starrett (1973) 34 Cal.App.3d 766, 770–771, 110 Cal.Rptr. 239;  Kent v. Koch (1958) 166 Cal.App.2d 579, 583, 333 P.2d 411.)   Here, as we have discussed, the lease reflects no intent to burden the land beyond the term of the lease.   Thus, after the lease terminated, there were no equitable servitudes for defendant to enforce.⁵

II

Plaintiffs Should Be Allowed to Amend Their Complaint to Allege Facts Showing Continuing Nuisance and Trespass.

Defendant contends all of plaintiffs' counts are barred by the statute of limitations and that plaintiffs cannot escape this bar by any amendment to their complaint.

A. A claim for damages for a permanent public nuisance is subject to the three-year statute of limitations in Code of Civil Procedure section 338, subdivision (b).

 Plaintiffs assert their count based upon public nuisance is not barred by the statute of limitations because in their view a claim based on public nuisance is never barred by the statute of limitations.   This argument is not well taken.

As pertinent here, a nuisance is, “anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, ․” (Civ.Code, § 3479.)  “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”  (Civ.Code, § 3480.)  “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.”  (Civ.Code, § 3493.)

Plaintiffs assert there is no statute of limitations running on their claim for public nuisance because Civil Code section 3490 provides:  “No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right.”

Civil Code section 3490 has been construed to mean that the statute of limitations is no defense to an action brought by a public entity to abate a public nuisance.  (Cloverdale v. Smith (1900) 128 Cal. 230, 235, 60 P. 851;  City of Turlock v. Bristow (1930) 103 Cal.App. 750, 756, 284 P. 962;  11 Witkin, Summary of Cal.Law, op. cit. supra, Equity, § 124, p. 805.)   However, where private citizens have sued for damages for special injury based on public nuisance, our Supreme Court has characterized the nuisance as either “continuing” or “permanent” and has used the characterization to determine whether the suit is subject to the statute of limitations.   As we shall explain, where a private citizen sues for damage from a permanent nuisance, the statute of limitations begins to run upon creation of the nuisance.   Where a continuing nuisance is alleged, every continuation of the nuisance gives rise to a separate claim for damages caused by the nuisance.

Thus, for example, in Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 162 P.2d 625, plaintiff sued for damages for the unlawful obstruction of a public road.   Although the Supreme Court did not expressly characterize the nuisance as “public,” the court cited Civil Code section 3493, quoted above, which is applicable only to public nuisances and which allows a private person to maintain an action if the public nuisance is specially injurious.  (Id. at p. 106, 162 P.2d 625.)   In any event, it is settled that the obstruction of a public road or street is a public nuisance.  (Gardner v. Stroever (1891) 89 Cal. 26, 29, 26 P. 618.)

Addressing defendant's contention that plaintiff's claim was barred by the statute of limitations, the Phillips court concluded, “Where a nuisance is of such character that it will presumably continue indefinitely it is considered permanent, and the limitations period runs from the time the nuisance is created.  [Citations.]  On the other hand, if the nuisance may be discontinued at any time it is considered continuing in character.   [Citations.]  Every repetition of a continuing nuisance is a separate wrong for which the person may bring successive actions for damages until the nuisance is abated, even though an action based on the original wrong may be barred.   [Citations.]”  (Phillips v. City of Pasadena, supra, 27 Cal.2d at pp. 107–108, 162 P.2d 625.)

Our Supreme Court recently applied Phillips' rule in Baker v. Burbank–Glendale–Pasadena Airport Authority (1985) 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866.   There, plaintiffs sued for (among other things) nuisance caused by noise, smoke, and vibrations from flights over their homes.   The trial court ruled the action was barred by the statute of limitations.  (Id. at p. 868, 218 Cal.Rptr. 293, 705 P.2d 866.)   In reversing the trial court, our Supreme Court framed the issue as whether the nuisance was permanent or continuing:  “Two distinct classifications have emerged in nuisance law which determine the remedies available to injured parties and the applicable statute of limitations.   On the one hand, permanent nuisances are of a type where ‘ “by one act a permanent injury is done, [and] damages are assessed once for all.” ’  ․ In such cases, plaintiffs ordinarily are required to bring one action for all past, present and future damage within three years after the permanent nuisance is erected․  Damages are not dependent upon any subsequent use of the property but are complete when the nuisance comes into existence․

“On the other hand, if a nuisance is a use which may be discontinued at any time, it is considered continuing in character and persons harmed by it may bring successive actions for damages until the nuisance is abated․  Recovery is limited, however, to actual injury suffered prior to commencement of each action.   Prospective damages are unavailable.”  (Id. at pp. 868–869, 218 Cal.Rptr. 293, 705 P.2d 866, citations and fns. omitted.)

Although Baker, like Phillips, does not expressly characterize the nuisance at issue as “public,” the disturbance caused by flights over homes is indisputably a public nuisance because it affects at the same time an entire community or neighborhood.  (Civ.Code, § 3480.)   We therefore conclude the continuing/permanent nuisance distinction drawn by Phillips and Baker applies to private suits for damages based upon public nuisances.

Additional (albeit oblique) support for this conclusion is found in McLean v. Llewellyn Iron Works (1905) 2 Cal.App. 346, 83 P. 1082, 1085.   There, an owner of property abutting on public streets sued the owner of property on the other sides of the streets for having constructed structures that encroached on the streets.   The trial court entered judgment for plaintiff on a nuisance theory.   The court of appeal rejected defendant's claims that plaintiff had failed to show an injury special to himself and that the injury was barred by the statute of limitation.  (Id. at pp. 349–350, 83 P. 1082, 1085.)   On the latter point, the court of appeal concluded, “A public nuisance cannot be legalized by prescription (Civ.Code, sec. 3490);  nor, so long as the streets remain such, can the rights of abutting land owners be thus affected.”  (Id. at p. 350, 83 P. 1082, 1085.)

Defendant petitioned for a hearing in our Supreme Court.   That court denied a hearing, issuing an unusual opinion on the denial that provided in part:  “It is, however, proper to say that we are not to be understood as affirming that portion of the opinion of the district court of appeal to the effect that the right of action by a private party to abate a public nuisance, because of special injury arising therefrom to him, may not be barred by the statute of limitation.”  (Ibid.)

Thus, where a private citizen sues for damages to real property caused by a public nuisance,⁶ and the nuisance is permanent, the three year statute of limitations in Code of Civil Procedure section 338, subdivision (b) (for trespass or injury to real property), begins to run when the permanent nuisance is created.  (Baker, supra, 39 Cal.3d at p. 869, 218 Cal.Rptr. 293, 705 P.2d 866;  Phillips, supra, 27 Cal.2d at p. 107, 162 P.2d 625.)   The authorities cited by plaintiffs—Tucker v. Watkins (1967) 251 Cal.App.2d 327, 59 Cal.Rptr. 453 and Wade v. Campbell (1962) 200 Cal.App.2d 54, 19 Cal.Rptr. 173—are not at odds with this rule because both cases involved continuing nuisances.⁷

B. Plaintiffs may amend their complaint to plead facts showing a continuing nuisance.

 This leaves the question whether the nuisance alleged in the instant case is permanent or continuing.  “In case of doubt as to the permanency of the injury the plaintiff may elect whether to treat a particular nuisance as permanent or continuing.  [Citation.]”  (Baker v. Burbank–Glendale–Pasadena Airport Authority, supra, 39 Cal.3d at p. 870, 218 Cal.Rptr. 293, 705 P.2d 866;  Spaulding v. Cameron (1952) 38 Cal.2d 265, 268, 239 P.2d 625.)

Defendant argues that plaintiffs' complaint manifests an election of permanent nuisance.⁸  Defendant points out that plaintiffs have alleged their property is “unusable and extremely difficult to market for an indefinite period of time” and there is “little likelihood that the Subject Property will ever be as valuable as it would have been if not contaminated.”   Moreover, defendant notes that plaintiffs seek to recover all diminution in the market value of their property by seeking an injunction that would make defendant buy the property from plaintiffs at its market value unaffected by contamination.   This form of relief is incompatible with a claim based on injuries caused by continuing nuisance.  (Spaulding v. Cameron, supra, 38 Cal.2d at pp. 269–270, 239 P.2d 625;  Plonley v. Reser (1960) 178 Cal.App.2d Supp. 935, 937, 3 Cal.Rptr. 551.)

On the other hand, plaintiffs allege they can amend their complaint to allege facts showing a continuing nuisance, i.e., the contamination can be abated and defendant has entered into a federal consent decree agreeing to clean up the property.   The question is whether these proposed averments sufficiently allege a continuing nuisance.

“The cases finding the nuisance complained of to be unquestionably permanent in nature have involved solid structures, such as a building encroaching upon the plaintiff's land (Rankin v. DeBare (1928) 205 Cal. 639 [271 P. 1050] ), a steam railroad operating over plaintiff's land (Williams [v. Southern Pac. R. Co. (1907) ], supra, 150 Cal. 624 [89 P. 599] ), or regrade of a street for a rail system (Eachus v. Los Angeles etc. Ry. Co. (1894) 103 Cal. 614 [37 P. 750] )․

“․

“The classic example of a continuing nuisance is an ongoing ․ disturbance, ․ caused by noise, vibration or foul odor.  (E.g., Vowinckel v. N. Clark & Sons (1932) 216 Cal. 156, 158 [13 P.2d 733] [vibration, noise and noxious soot, smoke and gases emanating from pottery factory].)   Indeed, even more substantial physical invasions of land have been held to be continuing in character.  (E.g., Tracy v. Ferrera (1956) 144 Cal.App.2d 827, 828 [301 P.2d 905] [deflection of rain water and emission of noxious odors and fumes from neighbor's pipes and furnace].)   As emphasized in Tracy, the distinction to be drawn is between encroachments of a permanent nature erected upon one's lands, and a complaint made, not of the location of the offending structures, but of the continuing use of such structures.  (Id., supra, 144 Cal.App.2d at p. 828 [301 P.2d 905].)   The former are permanent, the latter is not.”   (Baker v. Burbank–Glendale–Pasadena Airport Authority, supra, 39 Cal.3d at pp. 869–870, 218 Cal.Rptr. 293, 705 P.2d 866, fns. omitted.)

Here, according to plaintiffs, no structures are involved and the nuisance consists of the offensive chemical pollution which can be abated.   In the decisions of our Supreme Court, the crucial distinction between a permanent and continuing nuisance is whether the nuisance may be discontinued or abated.   (Id. at p. 869, 218 Cal.Rptr. 293, 705 P.2d 866;  Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 270–271, 288 P.2d 507;  Spaulding v. Cameron, supra, 38 Cal.2d at p. 268, 239 P.2d 625;  Phillips v. City of Pasadena, supra, 27 Cal.2d at p. 107, 162 P.2d 625;  Kafka v. Bozio (1923) 191 Cal. 746, 751, 218 P. 753;  3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 425, p. 458.)   We do not read Baker v. Burbank–Glendale–Pasadena Airport Authority, supra, 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866, as deviating from this rule.   The majority opinion of Justice Reynoso expressly states that a continuing nuisance is one that may be discontinued at any time.  (Id. at p. 869, 218 Cal.Rptr. 293, 705 P.2d 866.)   The majority opinion argued defendant was obligated by statute to curb noise pollution at the airport.   (Id. at p. 873, 218 Cal.Rptr. 293, 705 P.2d 866.)   The ability of the airport to discontinue the noise pollution is therefore necessarily implied in the argument.   The dissenting opinion of Justice Mosk argued the nuisance was permanent because injunctive relief against airplane flights was unavailable.   (Id. at p. 875, 218 Cal.Rptr. 293, 705 P.2d 866.)   Therefore, the dispute between majority and dissent appears to focus not on whether a continuing nuisance is one that is abatable but rather on whether injunctive relief must be available in order for a nuisance to be abatable.   That issue is not present in this case.

Plaintiffs' proposed pleading therefore meets the crucial test of a continuing nuisance:  that the offensive condition is abatable.⁹

We note plaintiffs' land may be subject to a continuing nuisance even though defendant's offensive conduct ended years ago.   That is because the “continuing” nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur.   The point is illustrated by Kafka v. Bozio, supra, 191 Cal. 746, 218 P. 753.   There, defendant constructed a building next to plaintiffs' building.   As originally constructed, the defendant's building was straight and plumb.   However, part of the building was built on soft ground, and, over time, the building tipped and leaned against plaintiffs' building, causing damage to the latter.   Concluding plaintiffs had a good claim for continuing nuisance, the court said, “ ‘Where continuing or recurring injury results from a wrongful act or from a condition wrongfully created and maintained, such as a continuing nuisance or trespass, there is not only a cause of action for the original wrong arising when the wrong is committed, but separate and successive causes of actions, for the consequential damages arise as and when such damages are from time to time sustained;  and therefore so long as the cause of the injury exists and the damages continue to occur, plaintiff is not barred of a recovery for such damages as have accrued within the statutory period beyond the action, although a cause of action based solely on the original wrong may be barred.’ ”  (Id. at p. 751, 218 P. 753;  see also Phillips v. City of Pasadena, supra, 27 Cal.2d 104, 162 P.2d 625 [City's act of installing locked gate on road constituted continuing nuisance].)

We are aware that the Second District Court of Appeal has recently concluded, “The salient feature of a continuing trespass or nuisance is that its impact may vary over time.”  (Field–Escandon v. DeMann (1988) 204 Cal.App.3d 228, 234, 251 Cal.Rptr. 49.)   Assuming this test correctly states the law, plaintiffs suggest they can amend their complaint to satisfy the test.   Thus, plaintiffs aver they “are prepared to prove at trial that the contamination has migrated or spread on the property continuously since it was initially dumped, and that therefore, its impact has varied over time.”   Presumably, plaintiffs are prepared to amend their complaint along these lines, thereby satisfying Field–Escandon 's test.

 Plaintiffs' proposed pleadings do not directly contradict any facts pleaded by plaintiffs in their complaint.   Although these proposed averments are necessarily at odds with the relief requested by plaintiffs, the validity of a demurrer is determined with reference to the pleaded facts alleged to constitute a wrong, not the prayer for relief.  (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123, 109 Cal.Rptr. 799, 514 P.2d 111.)

 In cases of doubt respecting the permanency of an injury caused by a nuisance, courts are inclined to favor the right to successive actions.   (Kafka v. Bozio, supra, 191 Cal. at p. 752, 218 P. 753.)  “․ [W]e should be particularly cautious not to enlarge the category of permanent nuisances beyond those structures or conditions that truly are permanent.   Where some means of abatement exists, there is little or no incentive to make remedial efforts once the nuisance is classified as permanent.”  (Baker v. Burbank–Glendale–Pasadena Airport Authority, supra, 39 Cal.3d at p. 872, 218 Cal.Rptr. 293, 705 P.2d 866.)   Whether contamination by toxic waste is a permanent or continuing injury is ordinarily a question of fact turning on the nature and extent of the contamination.  (See, e.g., Piccolini v. Simon's Wrecking (M.D.Pa.1988) 686 F.Supp. 1063, 1075–1077;  Merry v. Westinghouse Elec. Corp. (M.D.Pa.1988) 684 F.Supp. 852, 855–856.)   We therefore conclude plaintiffs should be allowed to amend their complaint to state their proposed facts so as to aver a theory of continuing nuisance and to seek damages caused them within three years of the date of filing the complaint.¹⁰  (Code Civ.Proc., § 338, subd. (b);  Baker v. Burbank–Glendale–Pasadena Airport Authority, supra, 39 Cal.3d at p. 869, 218 Cal.Rptr. 293, 705 P.2d 866.)

C. Plaintiffs have alleged special injury sufficiently to allow them to sue for damages for public nuisance.

 Defendant contends plaintiffs “lack standing” to sue for public nuisance.

Defendant notes Civil Code section 3493 allows a private person to maintain an action for public nuisance “if it is specially injurious to himself.”   Defendant argues plaintiffs have failed to allege special injury.   Defendant asserts plaintiffs' only averment of special injury is a reduction of market value of the property.   As we have explained, a reduction of market value of the property is incompatible with plaintiffs' only viable claim for public nuisance—one based on continuing nuisance.

However, defendant reads plaintiffs' damages allegations too selectively.   Plaintiffs have alleged, among other things, that they have been required to undertake testing of the property.   These testing costs are sufficient to constitute “special injury” to plaintiffs under Civil Code section 3493.

D. Plaintiffs may amend their complaint to allege a continuing trespass.

 Historically, the application of the statute of limitations for trespass has been the same as for nuisance and has depended on whether the trespass has been continuing or permanent.  (See Kafka v. Bozio, supra, 191 Cal. 746, 218 P. 753, see also Kornoff v. Kingsburg Cotton Oil Co., supra, 45 Cal.2d 265, 288 P.2d 507;  Spaulding v. Cameron, supra, 38 Cal.2d at p. 268, 239 P.2d 625.)   As we have recounted, the crucial test of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated.  (Baker v. Burbank–Glendale–Pasadena Airport Authority, supra, 39 Cal.3d at p. 869, 218 Cal.Rptr. 293, 705 P.2d 866;  Kafka v. Bozio, supra, 191 Cal. at p. 751, 218 P. 753.)   We have already seen how plaintiffs' proposed amendments to their complaint meet this test.

We note that plaintiffs' theory of continuing trespass is sanctioned by the Restatement (Second) of Torts, which states:  “(b) Continuing trespass.   The actor's failure to remove from land in the possession of another a thing which he has tortiously ․ placed on the land constitutes a continuing trespass for the entire time during which the thing is on the land and ․ confers on the possessor of the land an option to maintain a succession of actions based on a theory of continuing trespass or to treat the continuance of the thing on the land as an aggravation of the original trespass.”  (Id. at § 161, comm. b;  see Merry v. Westinghouse Elec. Corp., supra, 684 F.Supp. at p. 855.)

We therefore conclude plaintiffs should be afforded the opportunity to amend their complaint clearly to allege facts that show a continuing trespass.

III

Plaintiffs' Counts for Negligence, Negligence Per Se, and Strict Liability Are Barred By the Statute of Limitations.

 We have no occasion to determine whether plaintiffs' counts for negligence, negligence per se, or strict liability state facts sufficient to constitute a cause of action because, assuming they do, each is barred by the statute of limitations.   The parties agree each of these counts is subject to the three-year statute of limitations in section 338, subdivision (b) of the Code of Civil Procedure.   As we shall explain, plaintiffs had good reason to inquire about (and therefore learn about) these matters more than three years before their complaint was filed.

In the third count, the complaint avers defendant was negligent by selecting the subject property as a site for hazardous substance disposal, improper disposing of hazardous substances, failing to determine the nature and extent of the contamination, failing to contain or remedy the contamination, and failing to inform plaintiffs of the contamination.

The fourth count, for negligence per se, is premised on defendant's alleged violation of statutes and regulations by their discharge of hazardous waste on the property and into the waters of the state.

The sixth count, for strict liability, is premised on defendant's alleged use, disposal, storage and maintenance of hazardous substances on the subject property.

 The traditional rule is that a statute of limitations begins to run upon the occurrence of the last element essential to the cause of action, even if the plaintiff is unaware of his cause of action.¹¹  (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 406, 163 Cal.Rptr. 711.) ¹²  The harshness of that rule has been ameliorated in cases where it would be manifestly unjust to deprive a plaintiff of a cause of action before he is aware he has been injured.  (Ibid.)  A cause of action under this discovery rule accrues when “ ‘plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence [italics added].’ ”  (Id. at p. 407, 163 Cal.Rptr. 711, citing Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 96–97, 132 Cal.Rptr. 657, 553 P.2d 1129.)   The limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry.  (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110–1111, 245 Cal.Rptr. 658, 751 P.2d 923.)   Subjective suspicion is not required.   If a person becomes aware of facts which would make a reasonably prudent person suspicious, he or she has a duty to investigate further and is charged with knowledge of matters which would have been revealed by such an investigation.  (Ibid.;  Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875, 191 Cal.Rptr. 619, 663 P.2d 177.)

 Whether the discovery rule applies at all is initially a matter of pleading.   As this court has held, “A plaintiff who relies on this exception must plead facts justifying delayed accrual;  the complaint must allege (1) the time and manner of discovery and (2) the circumstances excusing delayed discovery.  [Citations.]”  (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26, 122 Cal.Rptr. 218 [mandamus issued to compel trial court to sustain demurrer to products liability complaint against drug manufacturer].)   This pleading requirement is a procedural safeguard against lengthy litigation on the issue of accrual.  (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832, 195 Cal.Rptr. 421.)

Here, the complaint alleges that defendant released toxic substances on the property from 1960 to 1970.   Plaintiffs acquired their interests in the property between 1975 and 1983.   The lawsuit was filed on January 14, 1988, and alleges that plaintiffs did not learn of the hazardous conditions until “recently.”   The complaint fails to allege when plaintiffs made the discovery, the circumstances of the discovery and why, in the exercise of reasonable diligence, they could not have made the discovery sooner.

The question then becomes whether the defect can be cured by amendment, a question properly before us despite plaintiffs' failure to seek leave to amend in the trial court.  (Code Civ.Proc., § 472c.)   The burden is on plaintiffs to show that amendment can save the complaint.  (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

Plaintiffs set forth the following additional facts which they intend to plead if allowed to do so:

“In late 1979, the Manginis were contacted by an investigator for the California Department of Justice, who informed the Manginis that he was conducting an investigation of [defendant's] hazardous waste disposal practices and was interviewing people who owned land near [defendant's] Sacramento facilities.   The investigator asked the Manginis whether they had any knowledge of [defendant's] waste disposal practices in the area.   The Manginis told him that they did not.   He informed them that there was no reason for them to be concerned about any environmental problems on their property.”

“On or about April 24, 1984, more than four years later, the Manginis received a letter from [defendant] asking for permission to inspect the property.   For the next two years, [defendant] discussed with the Manginis its plans for inspecting and conducting tests on the property.   Never during that period of time did [defendant] tell the Manginis anything about the nature of [defendant's] activities while it had leased the property.”   An access agreement sent by defendant to plaintiffs indicated defendant had used the property as a “buffer zone.”  “[Defendant] did not inform the Manginis that the property had been used for disposal of hazardous substances.   Nor did [defendant] tell the Manginis why it was interested in conducting tests on the property.   When the Manginis asked questions, [defendant] put them off with vague answers, telling them that the planned investigation was part of [defendant's] general environmental analysis of the area.”

At some undisclosed time, defendant took soil samples and plaintiffs hired an independent laboratory.   In January 1987, defendant gave plaintiffs its laboratory test results, which appeared to show chemical contamination in the soil, but told plaintiffs this was laboratory error.   In April 1987, the Sacramento Air Pollution Control District informed plaintiffs their property was contaminated with hazardous substances.   In mid–1987, plaintiffs retained an attorney and obtained U.S. Environmental Protection Agency records, including 1979–1980 Department of Justice investigative reports.

Plaintiffs state, “Those reports disclosed for the first time to the Manginis the nature of [defendant's] activities while it had leased the property from 1960 to 1970.   The reports showed that [defendant] had disposed of thousands of pounds of trichloroethylene (TCE), ammonium perchlorate rocket fuel and other chemical contaminants on the property.   Trenches were dug, barrels of waste were ignited, and ponds on the property were used as a hazardous waste dumping ground.   These alterations were subsequently covered.   The reports also showed that the California Attorney General's Office and the EPA had filed lawsuits against [defendant] to compel it to clean up contamination on property which [defendant] owned or leased in the Sacramento area.” ¹³  Plaintiffs filed their complaint on January 14, 1988.

We treat these facts as admissions.  “ ‘[W]hile briefs and arguments are outside the record, they are reliable indications of a party's position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party.’ ”  (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1019, fn. 3, 242 Cal.Rptr. 368.)

Thus, in 1984, more than three years before filing the complaint, plaintiffs knew the following facts:  (1) the recorded lease gave notice that defendant had engaged in activities of a potentially hazardous nature on their land;  (2) the Department of Justice investigated defendant's practices regarding disposal of hazardous waste in the area;  and (3) defendant asked plaintiffs for permission to inspect their property.

Whether any of these three facts in isolation would be sufficient to impart notice is open to dispute.¹⁴  However, the combination of these facts together establish as a matter of law that, when defendant contacted plaintiffs in 1984, plaintiffs had sufficient information to put them on notice of the possibility that defendant had dumped hazardous waste on their land.

That defendant gave evasive, or even untruthful, reasons for the inspection did not relieve plaintiffs of their duty of inquiry once they had sufficient facts to suspect the cause of action.   Indeed, the evasiveness gave further reason for suspicion.

Here, had plaintiffs investigated in a timely fashion, they would have discovered the Department of Justice reports, which they admittedly received shortly after requesting them from the EPA in 1987.   Plaintiffs are charged with knowledge of the information in those reports.  “[W]hen knowledge had by or imputed to plaintiff is such as to compel the conclusion that a prudent man would have suspected [the cause of action], the court may determine, as a matter of law, that there had been discovery.”  (National Automobile & Cas. Ins. Co. v. Payne (1968) 261 Cal.App.2d 403, 409, 67 Cal.Rptr. 784.)

We therefore conclude the statute of limitations on plaintiffs' claims for negligence, negligence per se, and strict liability began to run no later than April 24, 1984, when plaintiffs received defendant's letter asking to inspect the property.   These claims, asserted in the complaint filed January 14, 1988, are barred by the three-year statute of limitations.  (Code Civ.Proc., § 338, subd. (b).)

IV

Plaintiffs Counts for Equitable Indemnity and Declaratory Relief Are Not Barred By the Statute of Limitations.

 In their tenth count, plaintiffs allege they have been compelled by governmental authorities to undertake testing of the property and may be required to abate hazardous conditions.   The complaint pleads, “The costs incurred by plaintiffs in investigating and abating the conditions at the Subject Property are and will be the result of defendants' illegal and improperly management of hazardous substances at the Subject Property and failure to inform plaintiffs of the hazardous condition of the Subject Property.  [¶] ․ [P]laintiffs are entitled to full, equitable indemnity from ․ defendants for all costs presently incurred, or which may be incurred, by plaintiffs in testing for and abating the hazardous conditions at the Subject Property.”

In their eleventh count, plaintiffs seek a declaratory judgment delineating the respective obligations of the parties for the testing and abatement costs described above.

Defendant does not dispute that plaintiffs have pleaded facts sufficient to state causes of action in these counts.  (See, e.g., Selma Pressure Treating Co. v. Osmose Wood Preserving, Inc. (1990) 221 Cal.App.3d 1601, 271 Cal.Rptr. 596.)   Rather, defendant argues the counts are barred by the statute of limitations.

Defendant asserts, “Where the underlying causes of action are barred by limitations, so too is any claim for indemnity arising out of them.”   This assertion incorrectly states the law.

It is well settled that, in the absence of a contrary statutory command, a cause of action for equitable indemnity does not come into existence until the indemnitee has suffered loss through payment.  (Valley Circle Estates v. VTN Consolidated, Inc. (1983) 33 Cal.3d 604, 612, 189 Cal.Rptr. 871, 659 P.2d 1160;  People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744, 751, 163 Cal.Rptr. 585, 608 P.2d 673;  E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506, 146 Cal.Rptr. 614, 579 P.2d 505.)  “[A] tort defendant does not lose his own independent right to seek such recovery simply because the injured party is barred from pursuing its separate claim against the additional defendant by the applicable statute of limitations.  [Citations.]”  (People ex rel. Dept. of Transportation, supra, 26 Cal.3d at p. 752, 163 Cal.Rptr. 585, 608 P.2d 673;  see Valley Circle Estates, supra, 33 Cal.3d at p. 611, 189 Cal.Rptr. 871, 659 P.2d 1160;  Postley v. Harvey (1984) 153 Cal.App.3d 280, 284–285, 200 Cal.Rptr. 354.)

Wagner v. State of California (1978) 86 Cal.App.3d 922, 150 Cal.Rptr. 489, cited by defendant, is inapposite.   There, this court held that a cross-complaint for equitable indemnity, filed in an action based upon a patent deficiency in real property, was barred by the statute of limitations.  (Id. at pp. 927–928, 150 Cal.Rptr. 489.)   We relied upon the language of Code of Civil Procedure section 337.1, which states in pertinent part, “Except as otherwise provided in this section, no action shall be brought to recover damages from any person performing or furnishing the design, ․ or construction of an improvement to real property more than four years after the substantial completion of such improvement․”  (Id. at p. 927, fn. 2, 150 Cal.Rptr. 489.)   We concluded that since the statute provided “No action” could be brought after four years, and since the statute did not except actions for equitable indemnity from its purview, an action for equitable indemnity had to be brought within the four years from the substantial completion of the improvement.  (Id. at p. 928, 150 Cal.Rptr. 489.)

Code of Civil Procedure section 337.1 is inapplicable here.   Defendant cites no correlative statutory language that would displace the ordinary rule that, “A tort defendant retains the right to seek equitable indemnity from another tortfeasor even if the plaintiff's action against the cross-defendant is barred by the statute of limitations.”  (Valley Circle Estates, supra, 33 Cal.3d at p. 611, 189 Cal.Rptr. 871, 659 P.2d 1160.)

Even assuming the statute of limitations on a claim for equitable indemnity is one year (Smith v. Parks Manor (1987) 197 Cal.App.3d 872, 882, 243 Cal.Rptr. 256), plaintiffs' count for equitable indemnity is not barred because the complaint does not disclose when plaintiffs incurred costs for testing or cleanup of the hazardous waste.  “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint;  it is not enough that the complaint shows merely that the action may be barred.  [Citation.]”  (McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874, 31 Cal.Rptr. 603, 382 P.2d 875.)

Plaintiffs' eleventh count for declaratory relief is not barred for the same reason.   Reasonably construed, this count seeks a declaration of plaintiffs' right to the equitable indemnity pleaded in their tenth count.   Plaintiffs may seek such a declaration.  (Valley Circle Estates, supra, 33 Cal.3d 604, 189 Cal.Rptr. 871, 659 P.2d 1160.)   As defendant acknowledges, the statute of limitations governing a request for declaratory relief is the one applicable to an ordinary legal or equitable action based on the same claim.  (Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719, 733, 146 P.2d 673;  3 Witkin, Cal. Procedure, op. cit. supra, Actions, § 475, p. 506.)   Here, the underlying claim is for equitable indemnity.   The count for declaratory relief is not barred for the same reason the count for indemnity is not barred.

V

Plaintiffs' Count For Violation of Business and Professions Code Section 17200 Fails to State Facts Sufficient to Constitute a Cause of Action.

 In their ninth count, plaintiffs allege, “The nuisance created and maintained by defendants ․ in violation of Civil Code section 3479 and their conduct as alleged in this complaint constitute unfair business practices” in violation of Business and Professions Code section 17200.

When we read the complaint as a whole, as we are required to do (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58), it appears that defendant's wrongful conduct occurred during its leasehold, between 1960 and 1970.

Business and Professions Code section 17200 (hereafter section 17200) provides in relevant part that “unfair competition shall mean and include unlawful, unfair or fraudulent business practice․”  (Emphasis added.)   Our Supreme Court has held that “practice” requires, at a minimum, ongoing conduct.  (State of California ex rel. Van de Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, 1169–1170, 252 Cal.Rptr. 221, 762 P.2d 385.)   Relief under section 17200 is unavailable to remedy past misconduct.  (Ibid.)

In this case, when the complaint is given “a reasonable interpretation” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58), it shows defendant's alleged misconduct occurred some 20 years ago.   Therefore, section 17200 affords no remedy for the misconduct.  (Ibid.)

Plaintiffs assert their claim under section 17200 should survive because their claims for continuing nuisance survive.   The argument is unconvincing.   As we have explained, the theory of continuing nuisance is not premised upon new wrongful conduct but upon the characterization of continuing damages as a continuing nuisance.  (Kafka v. Bozio, supra, 191 Cal. at p. 751, 218 P. 753.)

Where, as here, defendant's wrongful conduct occurred many years ago, plaintiffs may not rely on the law of continuing nuisance to create a present pattern or practice of conduct required for relief under section 17200.

Plaintiffs' ninth count does not state facts sufficient to constitute a cause of action.  (Code Civ.Proc., § 430.10, subd. (e).)

CONCLUSION

Defendant's demurrer to plaintiffs' third, fourth, sixth and ninth “causes of action” was properly sustained without leave to amend.   Defendant's demurrer may not be sustained with respect to plaintiffs' first, second, fifth, tenth, and eleventh “causes of action.”   On remand, the trial court shall vacate its order sustaining the demurrer with respect to the latter “causes of action” and shall allow plaintiffs to file an amended complaint as described in the opinion.

DISPOSITION

The judgment is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.   Each party shall bear its own costs on appeal.

FOOTNOTES

1.   We are aware that the disposal of hazardous waste is subject to substantial regulation under federal and state law.  (See, e.g., Comprehensive Environmental Response Compensation Liability Act (42 U.S.C. § 9601 et seq.);   Clean Water Act (33 U.S.C. § 1251 et seq.);   Safe Drinking Water Act (42 U.S.C. § 300f et seq.);   California Hazardous Waste Control Act (Health & Saf. Code, § 25100 et seq.);   California Hazardous Substance Account Act (Health & Saf. Code, § 25300 et seq.).)   The parties to this action make no argument that relief is either available or unavailable on account of the cited statutes.   We express no view as to whether the cited statutes may either authorize or preclude the relief sought by plaintiffs in this action.  (See generally, Note, Hazardous Wastes:  Preserving the Nuisance Remedy (1981) 33 Stan.L.Rev. 675.)

2.   Defendant James H. Cavitt is not a party to this appeal.

3.   Other pertinent provisions of the lease are discussed below.

4.   Civil Code sections 1469 and 1470, the only statutory provisions directly addressing covenants by lessors, refer only to promises by lessors to do or refrain from acts on other real property contiguous to that demised to the lessee.

5.   Even assuming for the sake of argument the lease contained covenants running beyond the term of the lease, the trial court could not properly determine on demurrer that defendant's conduct was authorized by the lease.   The question whether defendant's conduct was embraced within the lease is a question of fact not properly resolved on demurrer.   The lease contains other provisions than those relied on by defendant in support of its claim that the Cavitts acquiesced and bound their successors to acquiesce in defendant's activities.   As we have noted, paragraph 8 provides in part:  “Upon termination of this lease, Lessee shall surrender the premises in as good state and condition as when received by Lessee, reasonable use and wear thereof consistent with the business engaged in by Lessee ․ excepted.”   Paragraph 11 provides in part:  “․ Lessee shall use and occupy the premises in conformity with all ordinances and laws solely at Lessee's risk․”  Paragraph 18 provides in part:  “Lessee further agrees, during the term, not to ․ commit waste to the reversionary interest of Lessors.”   Plaintiffs allege that defendant's activities violated all these provisions, rendering the Cavitts' “acquiescence” of no force or effect.   If so, then the covenant relied on by defendant would be no bar to this action.Also, should defendant's construction of the lease prevail, the lease would arguably show that plaintiffs' predecessors in interest consented to the disposal of toxic waste on the property.   The parties have not addressed the question whether consent may be an affirmative defense to any of the tortious conduct alleged in the complaint and we do not consider the issue.   In any event, because evidence is required to determine the extent of defendant's permissible conduct under the lease, the issue of consent (even assuming its materiality) could not be resolved on demurrer.

6.   We have no occasion to examine claims for personal injury based on public nuisance.  (But see Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 937–938, 101 Cal.Rptr. 568, 496 P.2d 480.)

7.   Although not cited by plaintiffs, we note that continuing nuisances were also at issue in Strong v. Sullivan (1919) 180 Cal. 331, 181 P. 59 and in Bowen v. Wendt (1894) 103 Cal. 236, 37 P. 149.

8.   Should plaintiffs' complaint be construed as one for permanent nuisance, it would be barred by the statute of limitations for reasons discussed in part III, post.

9.   Needless to say, the continuing or permanent nature of the nuisance remains subject to proof at trial.   Our task in reviewing the demurrer is to ascertain whether plaintiffs' proposed pleading should allow them to try to prove a continuing nuisance.

10.   Plaintiffs have pleaded counts for both public and private nuisance.   As we have said, a public nuisance is one that affects an entire community or neighborhood or any considerable number of persons.   (Civ.Code, § 3480.)   A private nuisance is any nuisance not otherwise defined as a public nuisance.  (Civ.Code, § 3481.)   Our analysis of the application of the statute of limitations applies equally to plaintiffs' counts for public and private nuisance.

11.   Both sides argue the traditional accrual rule applies, but with different results.   Plaintiffs claim they did not sustain an injury (hence the statute did not begin to run) until they recently tried to sell their property, without success.   However, the only case cited by plaintiffs, Allred v. Bekins Wide World Van Services (1975) 45 Cal.App.3d 984, 120 Cal.Rptr. 312, merely held a cause of action under the discovery rule accrues when the person sustains some damage and discovers or should discover his cause of action.   Here, the injury was sustained by 1970.   The infliction of appreciable and actual harm, however uncertain in amount, will commence the statutory period.  (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1025, 242 Cal.Rptr. 368.)In view of our disposition, we need not address defendant's argument that the statute of limitations ran while the Cavitts, who had contemporaneous knowledge of the injury and its cause, still owned the land.

12.   In Leaf, supra, the trial court granted summary judgment to the defendant on the theory that the plaintiffs' cause of action was barred by the 10–year statute of limitations under Code of Civil Procedure section 337.15 (latent defects in construction of real estate).   Claims under Code of Civil Procedure section 337.15 do not receive the benefit of the delayed discovery rule, because that statute specifies that claims accrue upon “substantial completion” of the construction.   However, the reviewing court there found Code of Civil Procedure section 337.15 inapplicable and held that Code of Civil Procedure section 338, subdivision (2) (now (b)) governed.  (Id. at pp. 402, 405 fn. 2, 163 Cal.Rptr. 711.)   Therefore defendant's assertion that plaintiffs have not alleged any latent defect within Code of Civil Procedure section 337.15 is a red herring.

13.   Defendant's request that we take judicial notice of the government's lawsuit is denied.   That the lawsuit specifically refers to plaintiffs' property, as defendant concedes, is unnecessary to our resolution of this case.

14.   For example, defendant argues the recorded lease was in itself sufficient to put plaintiffs on inquiry when they acquired the property.   We agree plaintiffs are conclusively presumed to know the contents of documents recorded in their chain of title.  (Fair v. Stevenot (1866) 29 Cal. 486, 488–489;  American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1020, 131 Cal.Rptr. 270.)   However, the lease at most told plaintiffs that defendant's activities might have constituted a nuisance or hazard in which the lessors acquiesced for the term of the lease, but which defendant promised to abate before abandoning the premises.In turn, plaintiffs wish to rely on the Department of Justice “reassurances” that they need not be concerned about their land.   Even assuming the Department of Justice knew at that time that defendant had previously leased plaintiffs' property, defendant's subsequent request to inspect the property dispels that reassurance and put plaintiffs on notice of a potential problem on their land.

SIMS, Associate Justice.

SPARKS, Acting P.J., and MARLER, J., concur.