Filed 8/25/14 Chaudhary v. Gupta 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,
                                                                     H039955
         Plaintiff and Appellant,                                   (Santa Clara County
                                                                     Super. Ct. No. CV237731)
         v.

CHANDRA GUPTA,

         Defendant and Respondent.



                                              I. INTRODUCTION
         Appellant Kailash Chandra Chaudhary discovered in 2007 that his friend Girdhari
Gupta, to whom Chaudhary had given power of attorney while he was incarcerated, had
sold Chaudhary’s home for $155,000 instead of $99,000 as Chaudhary had believed. In
2009, Chaudhary brought an action arising from the allegedly fraudulent home sale that
did not name Girdhari’s wife, respondent Chandra Gupta, as a defendant. (Chaudhary v.
Stevens (Super. Ct. Santa Clara County, No. 109CV149223.) Chaudhary subsequently
learned during Girdhari’s deposition that Chandra1 had received a portion of the escrow


         1
          For purposes of clarity and meaning no disrespect, we will refer to Girdhari
Gupta and respondent Chandra Gupta by their first names. Although the record reflects
that respondent was erroneously sued as “Chandra Gupta” because her name is spelled
“Chanda Gupta,” the case caption retains the name “Chandra Gupta.” We will therefore
refer to respondent as “Chandra” throughout our opinion.
proceeds from the allegedly fraudulent home sale. Chaudhary did not amend the
complaint in Chaudhary v. Stevens, supra, No. 109CV149223 to substitute Chandra for a
Doe defendant. Instead, in December 2012, Chaudhary filed the present action against
Chandra alone, alleging that she was liable for her involvement in the fraudulent home
sale.
        Chandra 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, subdivisions (c)(1) and (d).2 The trial court granted the
motion and entered a judgment of dismissal in Chandra’s favor. On appeal, Chaudhary
argues that the trial court erred in granting the motion for judgment on the pleadings
because Chandra intentionally concealed her identity during the limitations period.
Chaudhary also argues that the trial court abused its discretion in denying leave to amend
the complaint. For the reasons stated below, we disagree and therefore we will affirm the
judgment of dismissal.
                II. FACTUAL AND PROCEDURAL BACKGROUND
        A. Prior Related Action
        On August 6, 2009, Chaudhary filed a complaint naming Barbara Stevens,
California Land Title Co., and Old Republic Title Co. as defendants. (Chaudhary v.
Stevens, supra, No. 109CV149223.) According to the complaint’s allegations,
Chaudhary was incarcerated in 1986. During his incarceration, Chaudhary gave Girdhari,
his “very close friend[],” power of attorney to manage Chaudhary’s personal and
financial affairs.
        Chaudhary did not learn until 2007 that Girdhari had conspired with defendants to
commit fraud in connection with the 1987 sale of Chaudhary’s home. The fraud

        2
        All statutory references hereafter are to the Code of Civil Procedure unless
otherwise indicated.

                                             2
allegedly consisted of the following: Girdhari told Chaudhary that his house would sell
for at most $99,000; Girdhari then sold the home to Stevens for $99,000 on December 22,
1987; on the same day, December 22, 1987, Stevens sold the home to Bruce Jackson for
$155,000, with the same title company handling both escrows; and Girdhari kept “the
secret profits” of the $155,000 sale “for himself and others.” At the time the home was
sold, Chaudhary “was in prison and needed money desperately to fight for the parental
rights of his daughter[.]”
       Chaudhary subsequently filed a first amended complaint, dated June 11, 2010, in
which he expanded on the allegations regarding the defendant title companies. The first
amended complaint also added the allegation that “Defendants used some of the
[Chaudhary] escrow proceeds to give money to family members of [Girdhari]. This
conduct resulted in the theft of an additional $40,000.”
       On March 7, 2011, Chaudhary filed a second amended complaint that alleged,
among other things, that “Doe #1 and [Girdhari] misappropriated [Chaudhary’s] escrow
proceeds by allowing checks to be written in excess of $40,000 to third parties who did
not have liens on [Chaudhary’s] Home, and who had no right to receive such funds.
Also, Defendants used some of [Chaudhary’s] escrow proceeds to give money to family
members of [Girdhari].” The second amended complaint also included the allegation that
“Stevens, Defendant DOE #1, [Girdhari] and Does 2–5 had a scheme to defraud
[Chaudhary] and keep the secret profits for themselves and others.”
       The clerk’s transcript submitted with the record on appeal includes a register of
actions that indicates that Chaudhary v. Stevens, supra, No. 109CV149223 was settled on
February 28, 2012.3




       3
        Chaudhary also states that he filed a prior action against Girdhari arising from
the same allegations of a fraudulent home sale, which was settled on an unspecified date.
                                             3
       B. Present Action
       On December 13, 2012, Chaudhary filed the complaint in the present action. The
only named defendant was Girdhari’s wife, Chandra.
       Chaudhary asserted that “[p]rior to being appointed as [Chaudhary’s] attorney-in-
fact, [Chaudhary] and [Girdhari] were very close friends for about twenty years and
[Chaudhary] trusted [Girdhari]. Both families had close ties, belonged to the same class
of Indian-Hindus, spoke the same languages and same dialects, their children played
together, celebrated functions together, and celebrated every birthday of their children
together.”
       Chaudhary again alleged that he had given Girdhari power of attorney to manage
Chaudhary’s personal and financial affairs after he was incarcerated in 1986, and that
Girdhari committed fraud in connection with the 1987 sale of Chaudhary’s home. The
fraud was the same scheme that had been alleged in the prior action, Chaudhary v.
Stevens, supra, No. 109CV149223: that Chaudhary did not learn until 2007 that Girdhari
had conspired with others to secretly sell Chaudhary’s home for $155,000 on the same
day the home was purportedly sold to Stevens for $99,000. Chaudhary asserted that
Girdhari’s family members had received approximately $40,000 from escrow proceeds,
including Chandra’s acceptance of $9,000 for herself.
       According to Chaudhary, “he did not learn that Defendant Chandra Gupta had
participated in the fraud until he took Girdhari Gupta’s deposition in [Chaudhary’s] prior
lawsuit against Old Republic Title Company in the year 2011 (when Defendant Girdhari
Gupta answered questions in connection with an escrow ledger and revealed the secret
name of his wife (Defendant Chandra Gupta) and other family members). During
Girdhari Gupta’s testimony, he answered questions in connection with an escrow closing
document and made [Chaudhary] aware that Defendant Chandra Gupta had accepted
$9,000 from the proceeds of [Chaudhary’s] escrow and had her family members accept
[an] additional $27,000.”
                                             4
       Chaudhary also asserted that “[b]oth Girdhari and Chandra Gupta were involved
in the parental right[s] case. [Chaudhary] was requesting their assistance. He was asking
them to visit his daughter at the foster parents’ home, and they did visit [his] daughter.”
       Based on these allegations, the causes of action in the complaint included fraud
(concealment), unjust enrichment, conversion, and money had and received.
       C. Motion for Judgment on the Pleadings
       Defendant Chandra filed a motion for judgment on the pleadings on the ground
that the action was time-barred under the three-year statute of limitations provided by
section 338, subdivisions (c)(1) and (d) for claims of fraud and conversion. In support of
her motion, Chandra requested judicial notice of the original complaint, the first amended
complaint, and the second amended complaint in Chaudhary v. Stevens, supra,
No. 109CV149223.
       Chandra argued that review of the pleadings in Chaudhary v. Stevens, supra,
No. 109CV149223 showed that Chaudhary’s causes of action accrued no later than
December 8, 2007, the date when Chaudhary allegedly discovered the fraudulent double
escrow scheme to sell his home for $155,000, not $99,000 as he had previously believed.
At that time, Chandra explained, Chaudhary knew that he “had been injured by not
receiving the full proceeds from the sale of [his] home” and knew “that at least one
person, [Girdhari], had wronged him.” Since the complaint in this case was not filed
until December 2012, Chandra argued that it was barred under the three-year statute of
limitations.
       Anticipating that Chaudhary would argue that Chandra was equitably estopped
from asserting the statute of limitations as a defense because her identity was fraudulently
concealed, Chandra argued that ignorance of a defendant’s identity did not toll the
statute. Chandra further argued that because Chaudhary alleged that he first learned of
her identity during a 2011 deposition taken in Chaudhary v. Stevens, supra,


                                              5
No. 109CV149223, he could have amended the complaint in that action to substitute
Chandra for a Doe defendant within the applicable limitations period.
       In opposition to the motion for judgment on the pleadings, Chaudhary maintained
that Chandra was equitably estopped from asserting the statute of limitations because he
did not learn of her conduct in connection with the fraudulent home sale until Girdhari’s
deposition was taken on February 7, 2012 (which he asserted was “erroneously stated in
the complaint as during the year 2011”) in Chaudhary v. Stevens, supra,
No. 109CV149223, and therefore his complaint was timely filed in December 2012.
       Alternatively, Chaudhary argued that the issue of whether he should have learned
of Chandra’s identity as a potential defendant during discovery in the prior action,
Chaudhary v. Stevens, supra, No. 109CV149223, was a question of fact that precluded
judgment on the pleadings. Chaudhary also argued that he should be permitted to amend
his complaint to allege that Chandra had fraudulently concealed her identity prior to
February 7, 2012.
       D. Trial Court Order
       The trial court granted Chandra’s motion for judgment on the pleadings without
leave to amend in its April 25, 2013 order. Based upon its review of the complaint in the
present action and the pleadings in Chaudhary v. Stevens, supra, No. 109CV149223, of
which the trial court took judicial notice, the court determined that (1) Chaudhary knew
the essential facts about the fraudulent sale of his home no later than August 6, 2009;
(2) Chaudhary knew that Girdhari’s family members had shared in the proceeds of the
sale no later than March 7, 2011, when the second amended complaint was filed; (3) In
either 2011 or on February 7, 2012, Chaudhary learned at Girdhari’s deposition in
Chaudhary v. Stevens, supra, No. 109CV149223 that defendant Chandra had accepted
money from the sale; and (4) Chaudhary never sought leave to amend the complaint in
Chaudhary v. Stevens, supra, No. 109CV149223 to substitute Chandra for a Doe
defendant.
                                             6
       The trial court further determined that there were no allegations that Chandra had
“actively concealed her role in the 1987 transfer of [Chaudhary’s] home, and
[Chaudhary] learned [Chandra’s] identity during discovery in the 2009 lawsuit. Upon
learning [Chandra’s] identity, he should have amended his pleading by designating
[Chandra] in place of a Doe defendant. [Citation.] Had [Chaudhary] done so, his claims
against [Chandra] would not have been time[-]barred because the 2009 lawsuit was filed
fewer than two years after [Chaudhary] allegedly learned about the 1987 transfer.
[Citation.] Thus, [Chaudhary] is unable to invoke equitable estoppel to avoid the effect
of the statute of limitations. [Citation.]”
       Chaudhary’s request for leave to amend was denied because the trial court found
that Chaudhary had not met his burden to show the defects in the complaint could be
cured by amendment and, in any event, “there does not appear to be any way in which
[Chaudhary] can cure defects with his pleading.”
       A judgment of dismissal was entered on June 26, 2013. Chaudhary subsequently
filed a timely notice of appeal from the judgment of dismissal.
                                     III. DISCUSSION
       On appeal, Chaudhary argues that the trial court erred in granting the motion for
judgment on the pleadings because the doctrines of equitable tolling and equitable
estoppel preclude Chandra from asserting a statute of limitations defense. 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.)
                                              7
       “In an appeal from a motion granting judgment on the pleadings, we accept as true
the facts alleged in the complaint and review the legal issues de novo. ‘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.)
       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 (Pooshs).)
       “Generally speaking, a cause of action accrues at ‘the time when the cause of
action is complete with all of its elements.’ [Citations.] An important exception to the
general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of
action until the plaintiff discovers, or has reason to discover, the cause of action.
[Citations.]” (Fox, supra, 35 Cal.4th at pp. 806–807.) “Discovery of the cause of action
occurs when the plaintiff ‘has reason . . . to suspect a factual basis’ for the action.
[Citations.]” (Pooshs, supra, 51 Cal.4th at p. 797.)
       “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a]
plaintiff whose complaint shows on its face that his [or her] claim would be barred
                                               8
without the benefit of the discovery rule must specifically plead facts to show (1) the time
and manner of discovery and (2) the inability to have made earlier discovery despite
reasonable diligence.’ [Citation.]” (Fox, supra, 35 Cal.4th at p. 808.)
       However, the California Supreme Court has also instructed that “failure to
discover, or have reason to discover, the identity of the defendant does not postpone the
accrual of a cause of action, whereas a like failure concerning the cause of action itself
does. ‘. . . [T]he rationale for distinguishing between ignorance’ of the defendant and
‘ignorance’ of the cause of action itself ‘appears to be premised on the commonsense
assumption that once the plaintiff is aware of’ the latter, he [or she] ‘normally’ has
‘sufficient opportunity,’ within the ‘applicable limitations period,’ ‘to discover the
identity’ of the former. [Citation.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399
(Norgart); see also Cypress Semiconductor Corp. v. Superior Court (2008)
163 Cal.App.4th 575, 587 [failure to discover the identity of the defendant does not
postpone accrual because the defendant’s identity is not an element of a cause of action].)
       In the present case, as the parties agree, the limitations period for the causes of
action for fraud, conversion, and unjust enrichment is three years. (§ 338, subds. (c)(1) &
(d).) Where, as here, the cause of action for money had and received is based on fraud,
the limitations period is also governed by section 338 and is three years. (See First
Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1670.) Thus, all causes of
action in Chaudhary’s complaint are subject to a three-year statute of limitations.
       The face of the complaint reveals that, absent an exception, the present action
against Chandra is time-barred under the three-year limitations period provided by
section 338 because (1) the allegations show that Chaudhary discovered the factual basis
for his causes of action in 2007, when he learned that Girdhari had conspired with others
to secretly sell Chaudhary’s home for $155,000 on the same day the home was
purportedly sold for $99,000; and (2) the complaint against Chandra was not filed until
five years later, in 2012.
                                              9
       We understand Chaudhary to argue that the complaint was timely filed because the
three-year limitations period for his action against Chandra was tolled, or, alternatively,
that Chandra is estopped from asserting the statute of limitations, because her
involvement in the fraudulent home sale scheme was concealed until Girdhari’s
deposition in Chaudhary v. Stevens, supra, No. 109CV149223. We therefore turn to an
overview of equitable estoppel and tolling.
       C. Equitable Estoppel
       The California Supreme Court has explained that “[e]quitable tolling and equitable
estoppel are distinct doctrines. ‘ “Tolling, strictly speaking, is concerned with the point
at which the limitations period begins to run and with the circumstances in which the
running of the limitations period may be suspended. . . . Equitable estoppel, however, . . .
comes into play only after the limitations period has run and addresses . . . the
circumstances in which a party will be estopped from asserting the statute of limitations
as a defense to an admittedly untimely action because his [or her] conduct has induced
another into forbearing suit within the applicable limitations period. [Equitable estoppel]
is wholly independent of the limitations period itself and takes its life . . . from the
equitable principle that no [one] [may] profit from his [or her] own wrongdoing in a court
of justice.” ’ [Citations.]” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383.) Thus,
“ ‘ “ ‘[w]here the delay in commencing action is induced by the conduct of the defendant
it cannot be availed of by him [or her] as a defense.’ ” ’ [Citations.]” (Id. at p. 384.)
       With regard to the plaintiff’s ignorance of a defendant, the California Supreme
Court has instructed that “a defendant may be equitably estopped from asserting the
statute of limitations when, as a result of intentional concealment, the plaintiff is unable
to discover the defendant’s actual identity.” (Bernson v. Browning-Ferris Industries
(1994) 7 Cal.4th 926, 936 (Bernson).) In other words, under the doctrine of equitable
estoppel an action filed after the limitations period has expired may proceed “ ‘[w]here
the plaintiff is unaware of the identity of the wrongdoer and this is due to fraudulent
                                              10
concealment by the defendant.’ [Citation.]” (Prudential-LMI Com. Insurance v.
Superior Court (1990) 51 Cal.3d 674, 690 (Prudential).)
       Under section 474,4 “when the plaintiff is ignorant of the name of ‘a defendant,’
the plaintiff must file suit against the known wrongdoers, and, when the Doe’s true name
is discovered, the complaint may be amended accordingly. [Citation.]” (Bernson, supra,
7 Cal.4th at p. 933.) The procedure for a Doe amendment was stated in Norgart:
“[S]ection 583.210, subdivision (a),[5] provides that the ‘complaint shall be served upon a
defendant within three years’ of its filing. Hence, the plaintiff can ‘file[] a timely
complaint under section 474 . . . . From the time such a complaint is filed,’ under section
583.210, subdivision (a), he [or she] ‘has three years,’ and the machinery of discovery,
‘to identify . . . the defendant,’ amend the complaint, and ‘serve [him] [or her] . . .,
effectively enlarging the . . . limitations period for three years’ through the doctrine that
the amended complaint ‘relates back’ to the original one. [Citation.]” (Norgart, supra,
21 Cal.4th at p. 398.)
       “[I]t will be the rare and exceptional case in which the plaintiff could genuinely
claim that he [or she] was aware of no defendants, and even more rare that, given
knowledge of at least one, he [or she] could not readily discover the remainder through
the filing of a Doe complaint and the normal discovery processes.” (Bernson, supra,
7 Cal.4th at p. 937.)

       4
        Section 474 provides in part: “When the plaintiff is ignorant of the name of a
defendant, he must state that fact in the complaint, or the affidavit if the action is
commenced by affidavit, and such defendant may be designated in any pleading or
proceeding by any name, and when his true name is discovered, the pleading or
proceeding must be amended accordingly; . . . .”
       5
         Section 583.210, subdivision (a) provides: “The summons and complaint shall
be served upon a defendant within three years after the action is commenced against the
defendant. For the purpose of this subdivision, an action is commenced at the time the
complaint is filed.”

                                              11
       D. The Parties’ Contentions
       On appeal, Chaudhary argues that the motion for judgment on the pleadings
should be denied because (1) he did not discover Chandra’s identity until the February 7,
2012 deposition of her husband, Girdhari, at which time discovery was closed in
Chaudhary v. Stevens, supra, No. 109CV149223, a trial date was pending, and a Doe
amendment would have had “no practical effect on that case”; (2) the complaint’s
allegations, which must be accepted as true, are sufficient to show that Chandra
concealed her identity because it is alleged that Girdhari’s deposition testimony revealed
that the escrow ledger indicating the persons to whom escrow proceeds were paid
contained “secret names”; (3) the statute of limitations was tolled during the period that
he was ignorant of Chandra’s identity; and (4) whether he exercised reasonable diligence
in discovering Chandra’s identity is a question of fact that cannot be resolved at the
pleading stage.
       Chandra responds that the doctrine of equitable tolling does not apply in this case
because ignorance of the identity of the defendant does not toll the statute, as stated in
Bernson, supra, 7 Cal.4th at page 932. Chandra also argues that she is not equitably
estopped from asserting a statute of limitations defense because the complaint does not
allege, and there is no indication that it could be alleged, that she prevented Chaudhary
from learning her identity and filing suit within the three-year limitations period.
According to Chandra, since Chaudhary became aware of her identity during discovery in
Chaudhary v. Stevens, supra, No. 109CV149223, he could have amended the complaint
in that action to substitute her for a Doe defendant and the causes of action against her
would have related back to the commencement of that action.
       E. Analysis
       As we have discussed, the face of the complaint shows that the three-year statute
of limitations provided by section 338, subdivisions (c)(1) and (d) had expired by the
time the complaint naming Chandra as a defendant was filed in December 2012. The
                                             12
complaint’s allegations show that Chaudhary discovered the factual basis for his causes
of action more than three years earlier, when he learned in December 2007 that Girdhari
had conspired with others to secretly sell Chaudhary’s home for $155,000 on the same
day the home was purportedly sold for $99,000. (See Pooshs, supra, 51 Cal.4th at
p. 797.)
       Chaudhary’s alleged ignorance of Chandra’s identity as a participant in the
fraudulent home sale scheme until either February 2011 or February 2012 did not toll the
statute of limitations, since failure to discover the identity of the defendant does not toll
or postpone accrual of the cause of action. (Norgart, supra, 21 Cal.4th at p. 399;
Bernson, supra, 7 Cal.4th at p. 932.) However, as we have noted, the California Supreme
Court in Bernson stated that “a defendant may be equitably estopped from asserting the
statute of limitations when, as the result of intentional concealment, the plaintiff is unable
to discover the defendant’s actual identity.” (Bernson, supra, 7 Cal.4th at p. 936.)
       Thus, the first issue to be decided in this appeal is whether the allegations of the
complaint are sufficient to show that Chandra should be equitably estopped from
asserting a statute of limitations defense since she actively concealed her identity from
Chaudhary during the limitations period and thereby prevented him from timely filing
suit against her. (See Bernson, supra, 7 Cal.4th at p. 936; Prudential, supra, 51 Cal.3d at
pp. 689-690.)
       Having carefully reviewed the complaint, we find no allegations showing that
Chandra actively or fraudulently concealed her identity from Chaudhary. Page four of
the complaint, relied upon by Chaudhary, states only that “he did not learn that [Chandra]
had participated in the fraud until he took [Girdhari’s] deposition in [Chaudhary’s] prior
lawsuit against Old Republic Title Company in the year 2011 (when [Girdhari] answered
questions in connection with an escrow ledger and revealed the secret name of his wife
[Chandra] and other family members). During [Girdhari’s] testimony, he answered
questions in connection with an escrow closing document and made [Chaudhary] aware
                                              13
that [Chandra] had accepted $9,000 from the proceeds of [Chaudhary’s] escrow and had
her family members accept [an] additional $27,000.”
        These allegations on page four of the complaint do not indicate that Chandra
participated in the alleged concealment of her name in escrow documents as a recipient of
$9,000 in escrow proceeds. Moreover, these allegations, together with the pleadings in
Chaudhary v. Stevens, supra, No. 109CV149223,6 demonstrate that Chaudhary could
have, but did not, amend the complaint in Chaudhary v. Stevens to substitute Chandra for
a Doe defendant after learning her identity in 2011, well within the three-year period
allowed for a Doe amendment after the original complaint in Chaudhary v. Stevens,
supra, No. 109CV149223 was filed in August 2009. (§ 583.210; see Norgart, supra,
21 Cal.4th at p. 398.)
        Accordingly, we determine that Chandra is not barred by the doctrine of equitable
estoppel from asserting a statute of limitations defense, since the face of the complaint
does not show that Chaudhary was unaware of her identity as a wrongdoer due to her
fraudulent concealment during the three-year period allowed under section 583.210 for a
Doe amendment to the original complaint. (See Prudential, supra, 51 Cal.3d at pp. 689-
690.)
        We next address the issue of whether the trial court abused its discretion in
denying Chaudhary leave to amend his complaint to cure these defects.
        F. Leave to Amend
        “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



        6
          “Both 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 . . . . [Citation.]” (Cantu v. Resolution Trust
Corp. (1992) 4 Cal.App.4th 857, 877.)
                                             14
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 (Maxton).) A plaintiff may show for the first time on appeal how
the complaint may be amended to cure the defect. (§ 472c, subd. (a); Las Lomas Land
Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 861.)
        On appeal, Chaudhary argues that he should be given leave to amend his
complaint to further allege that Chandra actively concealed her identity by using a
“phony name” to accept and cash the escrow proceeds. He also argues that the trial court
abused its discretion by failing to allow him to amend his complaint to correct
typographical errors, including correction of the date of Girdhari’s deposition Chaudhary
v. Stevens, supra, No. 109CV149223 to indicate the correct date is February 7, 2012, not
2011.
        According to Chandra, any amendment of the complaint would be futile because
Chaudhary has not shown how the complaint could be amended to cure its defects.
Chandra asserts that Chaudhary has admitted in his pleadings that he discovered her
identity in time to amend the complaint in Chaudhary v. Stevens, supra,
No. 109CV149223 by substituting her for a Doe defendant. We agree.
        Even if the complaint was amended to show that Girdhari’s deposition in
Chaudhary v. Stevens, supra, No. 109CV149223 was taken on February 7, 2012, the
proposed amendment would not cure the defects in the complaint. Despite Chandra’s
alleged concealment, Chaudhary admits in the proposed amendment that he discovered
Chandra’s identity as a wrongdoer no later than February 7, 2012. Therefore, Chaudhary
could have filed an amendment substituting Chandra for a Doe defendant in Chaudhary
                                            15
v. Stevens, supra, No. 109CV149223 before the three-year relation-back period allowed
under section 583.210 expired in August 2012 (since the original complaint was filed in
August 2009). (See Norgart, supra, 21 Cal.4th at p. 398.) Because Chaudhary failed to
do so, his action against Chandra is time-barred.
       We are not convinced by Chaudhary’s argument that “even if [he] had filed a
[D]oe amendment in the 2009 [a]ction, it would have had no practical effect . . . because
[he] would not have been able to alter the trial date and reopen discovery to keep the case
going against [Chandra].” Chaudhary does not provide any authority for the proposition
that where, as here, a defendant’s identity is discovered during the three-year relation-
back period provided by section 583.210, the plaintiff may elect to disregard the Doe
amendment procedure provided by section 474 and instead file a separate action against
that defendant. To the contrary, section 474 provides that a Doe amendment is
mandatory: “When the plaintiff is ignorant of the name of a defendant, he must state that
fact in the complaint . . . and such defendant may be designated in any pleading or
proceeding by any name, and when his true name is discovered, the pleading or
proceeding must be amended accordingly . . . .” (§ 474, italics and underscoring added;
see Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135,
1144 [requirements of section 474 are mandatory].)
       Finally, even if the complaint was amended to allege that Chandra actively
concealed her identity by using a “phony name” to accept and cash the escrow proceeds,
the proposed amendment would not render the action timely or allow the application of
equitable estoppel. Assuming the truth of the proposed allegation that Chandra actively
concealed her identity, that would not change the legal effect of Chaudhary’s other
proposed amendment, in which he asserts that he discovered Chandra’s identity as a
wrongdoer no later than Girdhari’s February 7, 2012 deposition. We therefore determine
that Chaudhary has not met his burden on appeal to show how the proposed amendments


                                             16
to the complaint would change its legal effect by showing that the action against Chandra
was timely filed. (See Maxton, supra, 203 Cal.App.4th at p. 95.)
       For these reasons, we conclude that the trial court did not err in granting
Chandra’s motion for judgment on the pleadings on the ground that the action is time-
barred, and we also conclude that the court did not abuse its discretion in denying leave
to amend the complaint. We will therefore affirm the judgment of dismissal.
                                   IV. DISPOSITION
The judgment of dismissal is affirmed. Costs on appeal are awarded to respondent.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.
