Summary
In Kisaka v. Banco Popular N. Am., Inc., 2007 WL 4347017 (Cal. App. 2 Dist., Dec. 13, 2007), the California Court of Appeals stated that "[o]nce the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights."
Summary of this case from In re W.R. Grace & Co., Civil Action No. 08-863 (Bankr.Del. 9/29/2009)Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Los Angeles County No. BC341014. Hon. Andria K. Richey, Judge.
Doug Kisaka, in pro. per., for Plaintiff and Appellant.
Buchalter Nemer and Jay R. Ziegler for Defendants and Respondents.
COOPER, P. J.
Doug Kisaka, in propria persona, appeals from orders of dismissal following the sustaining of various respondents’ three demurrers without leave to amend. The demurrers were based on a bar by various statutes of limitation. Concluding the action was barred and that no exception appears, we shall affirm.
Kisaka is the president of Digital Broadcast, Inc. (Digital), a California corporation, and is representing himself on appeal. Appellant and Digital were represented by counsel in the trial court; unrepresented by counsel, Digital has not pursued an appeal in this or the companion appeal, B195366, which this court has ordered consolidated with appeal B193569 for purposes of oral argument and decision.
Banco Popular of North America, sued as Banco Popular, Inc. (Popular) is a respondent in appeal B193569; the other respondents in B193569 are individuals who were employed by Popular, Daniels, Pombo and Aguirre. The first demurrer was by Popular, Inc. and individual Aguirre; the second order of dismissal following the sustaining of a subsequent demurrer was as to individuals Daniels and Pombo. Popular is the respondent in the consolidated appeal, B195366; its demurrer was also sustained without leave to amend and a judgment of dismissal was entered. While we use the plural “respondents” throughout, we recognize that different respondents became part of the litigation and filed their demurrers at different times.
PROCEDURAL HISTORY
Previous litigation
Digital apparently filed a similar lawsuit in superior court case BC315684. That complaint was dismissed June 8, 2005. A default and then a default judgment on a cross-complaint in case BC315684 were entered in favor of Banco Popular and against Digital and appellant on August 1, 2005. The trial court denied repeated efforts to vacate the dismissal and set aside the default and default judgment in case number BC315684, which respondents claim made virtually the same allegations as in the instant action.
In that earlier proceeding, Popular had sought dismissal or a stay based on Nevada’s alleged revocation of Digital’s corporate charter. The court dismissed the complaint. Appellant relies on the proceedings in case BC315684 in making several of his arguments in this appeal, but he provided to the trial court very few of the documents from that record. Some are in the appellate record of the consolidated appeal. Our own understanding of the previous proceeding is therefore limited.
Popular contends that the dismissal of case BC315684 led to the untimely filing of this lawsuit, based on the same allegations and legal theories. Appellant agrees the instant lawsuit was filed as a result of the previous dismissal but contends the appeal in the previous case and the investigation by the Federal Reserve Bank equitably tolled the statute of limitations in the instant case.
The pleadings in the instant case
The complaint in B193569 by Digital and Kisaka against Banco Popular and several of its employees, was filed October 6, 2005. The causes of action were for fraud, negligent misrepresentation, and tortious interference, all arising from the bank’s denial of a loan on October 5, 2001. Respondents allegedly had earlier made representations that a loan would be forthcoming and Digital therefore hired new employees, bought additional equipment, and otherwise relied on the representations to its detriment.
Respondents’ demurrer was based on a bar by limitations periods. Appellant initially opposed the demurrer based on a theory of equitable tolling, which appellant characterized as a question of fact that could not be determined by demurrer. Moreover, appellant argued that the tortious interference was not discovered until January 2004, when appellant’s attorney discovered false testimony to the Federal Reserve Bank, which also allegedly caused incremental injury to appellant. On appeal, appellant contends there is a 3-year period for fraud and negligent misrepresentation and a 4-year statute for tortuous inference. That demurrer, the first of three involved in these consolidated appeals, was sustained without leave to amend; and the complaint was dismissed on March 22, 2006.
Respondents argue different periods are applicable. We need not decide that issue because we conclude that, even if the 4-year statute of limitations applies, the trial court correctly sustained the demurrers and ordered dismissals.
Appellant attempted to overturn the dismissal as to Banco Popular and individual Aguirre and filed a first amended complaint (FAC) on April 21, 2006. Appellant further claimed that the statute was still tolling while its appeal proceeded in case BC315684.
Because Digital had failed to serve two individual defendants, who were later served, those individuals, Daniels and Pombo, responded to the FAC. As the individuals noted in their demurrer, the FAC was a virtual repeat of the initial complaint, with further allegations regarding alleged false statements to the Federal Reserve Bank and tolling. Appellant contended the proceedings before the Federal Reserve Bank effectively tolled the statute of limitations until appellant’s receipt of final notification by the Federal Reserve Bank findings.
The trial court denied the motion to set aside dismissal. Plaintiffs thereafter added Popular, and Nuno, an individual bank officer, as Doe defendants.
Appellant Kisaka in pro. per. then sought to recuse and/or disqualify the trial court because of alleged professional affiliation with respondents’ law firm. The basis for disqualification was that the trial judge and the law firm were both listed as faculty members in a seminar. Counsel substituted out as counsel for Kisaka but remained counsel for Digital. The court filed an order striking the statement of disqualification.
At the status conference on August 7, 2006, the trial court denied the motion for reconsideration and sustained the demurrer of individual defendants Daniels and Pombo without leave to amend. Further, the court found “no legal basis for tolling.” Moreover, Digital had not yet served the Does named on May 26, 2006, Nuno and Popular, and an order to show cause why they should not be dismissed was set.
The order of dismissal as to Daniels and Pombo was filed August 31, 2006. Digital filed a notice of appeal from the decisions of March 2, May 19, August 7 and August 9, 2006 on August 28, 2006. A notice of appeal, solely by Kisaka representing himself, was from the same “decisions.”
Assuming the notice of appeal by counsel was on behalf of Digital, we shall dismiss any appeal by Digital for its failure to pursue the appeal. Moreover, Kisaka has not raised and has therefore abandoned issues other than the propriety of sustaining the demurrers. “Issues not raised in an appellant’s brief are deemed waived or abandoned. (Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811 [189 Cal.Rptr. 775].)” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; accord Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 753, fn. 12.)
The subsequent sustaining of the demurrer and dismissal as to Popular is the subject of the consolidated appeal, B195366. Popular’s demurrer to the FAC was sustained without leave to amend. The order of dismissal was filed October 31, 2006, and this appeal follows.
DISCUSSION
1. Standard of review.
“Where the complaint discloses that the statute of limitations bars the action, the general demurrer has long been held an appropriate means to assert such a facial defect. (Brown v. Martin (1864) 25 Cal. 82, 91; [citation].)” (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 300, fn. 2; accord 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 915, p.374 [“A complaint showing on its face that the cause of action is barred by limitations is subject to demurrer.”])
The standard of review from orders of dismissal following the sustaining of demurrers is well established: “[A]n appellate court treats the demurrer as admitting all material facts properly pled and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171].) We also read the complaint as a whole and its parts in context, giving it a reasonable interpretation. (Ibid.) When a demurrer is sustained, we determine if the complaint states facts sufficient to constitute a cause of action. When it is sustained without leave to amend, we decide if there is a reasonable possibility that the defect can be cured by amendment. If so, the trial court abused its discretion, and the judgment is reversed. The plaintiff bears the burden of proving the reasonable possibility of cure. (Ibid.)” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.)
“An appellate court must affirm if the trial court’s decision to sustain the demurrer was correct on any theory. (Hendy v. Losse (1991) 54 Cal.3d 723, 742 . . . .)” (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 807-808; accord Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1168.) “On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.]” (Montclair Parkowners Ass’n v. City of Montclair (1999) 76 Cal.App.4th 784, 790; accord McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.)
2. The complaint and FAC are barred by the statute of limitations.
In tort claims, the period of limitations commences when the cause of action accrues. “[I]n general a cause of action in tort accrues at the time of injury . . . .” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1247.)
As our Supreme Court recently affirmed in Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 638, “California law recognizes a general, rebuttable presumption, that plaintiffs have ‘knowledge of the wrongful cause of an injury.’ [Citation.]” Moreover, for purposes of accrual of the limitations period, inquiry notice is triggered by suspicion. As the California Supreme Court explained in the Jolly case: “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111 (Jolly).) The court recently reaffirmed the suspicion rule in Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 803 , saying “under the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action. [Citation; italics added.]” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1318.)
The bank’s denial of the loan after stating the loan was “a go” is the essence of any alleged wrong to appellant. For example, appellant’s summary in the case management statement filed February 14, 2006, provided: “Defendants defrauded plaintiffs in leading plaintiffs to believe that their loan had been approved and then not funding it.” Appellant knew on October 5, 2001, that the bank was not going to loan further funds to appellant/Digital after allegedly saying it would. That is the date any wrong to appellant/Digital from the alleged wrongful conduct of the bank in orally approving the loan and then denying it was discovered.
Later statements to the Federal Reserve Bank were not misrepresentations or fraud as to appellant or Digital. While they may fortify Digital’s arguments that the bank treated Digital and appellant poorly, they do not alter the date the statute of limitations, whether two, three, or four years, started running. Again, appellant’s own complaint alleged he knew the loan was denied on October 5, 2001, over four years before the complaint was filed.
Neither is there an exhaustion of remedies or equitable estoppel doctrine that, given the allegations in the FAC, might allow appellant to delay filing until an administrative process was concluded. The complaint was filed more than four years following the date appellant knew the loan was denied; denial of the loan after oral assurance the loan would be forthcoming is the gravamen of the complaint. The demurrers were properly sustained without leave to amend.
DISPOSITION
Any appeal by Digital is dismissed. The orders of dismissal are affirmed. Appellant is to pay costs on appeal.
We concur: RUBIN, J., FLIER, J.
The records of this court reveal that a petition for writ of supersedeas in BC315684 was denied by Division One on October 26, 2005, and pursuant to appellant Digital’s request, the appeals filed October 6, 2005, from both the judgment and order denying motion to vacate, were dismissed. (B186401.) On May 8, 2006, Administrative Presiding Justice Boren denied appellant’s motions to vacate dismissals of the untimely notices of appeal filed on January 30, 2006, following the dismissal pursuant to request of appellants. (B188877.)