Opinion
B231604
02-14-2012
BORIS K'ZORIN, Plaintiff and Appellant, v. TOYOTA MOTOR SALES U.S.A., INC., Defendant and Respondent.
Boris K'Zorin, in pro. per., for Plaintiff and Appellant. Kutak Rock and Tiffany Ackley for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC430047)
APPEAL from a judgment of the Superior Court of Los Angeles County, Amy Hogue, Judge. Affirmed.
Boris K'Zorin, in pro. per., for Plaintiff and Appellant.
Kutak Rock and Tiffany Ackley for Defendant and Respondent.
Boris K'Zorin appeals a judgment of dismissal after the sustaining of a demurrer without leave to amend to his complaint against Toyota Motor Sales U.S.A., Inc. (TMS). The complaint arises from K'Zorin's leasing of a car from TMS and the later repossession of the vehicle by a repossession agency. K'Zorin alleges misrepresentation and concealment relating to the price of the car and trespass in connection with the repossession. On appeal, K'Zorin contends (1) TMS is not exempt from California law and therefore is liable for wrongs committed by an independent dealership, and (2) there are triable issues of material fact as to whether TMS committed trespass and fraud.
We conclude that the trial court properly sustained the demurrers without leave to amend and that K'Zorin has shown no error. We therefore will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We assume the truth of the facts pleaded in the complaint in accordance with the standard of review on appeal from a judgment of dismissal following the sustaining of a demurrer. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
K'Zorin leased a car from a Toyota dealership in 2006. On January 12, 2008, a repossession agency removed the car from the parking lot of the apartment building where K'Zorin resided.
2. Trial Court Proceedings
K'Zorin filed a Judicial Council form complaint against TMS on January 19, 2010, alleging counts for (1) negligent operation of a motor vehicle, (2) general negligence, (3) intentional tort, and (4) fraud. He alleged that he leased a car in 2006 and that the car was repossessed on January 12, 2008. He also alleged that he attempted to negotiate a resolution until January 25, 2008, and that "[t]he day of factual loss is January 25, 2008." Attached to the complaint was a letter from K'Zorin to Toyota Motor Credit Corporation stating that the car was wrongfully repossessed on January 12, 2008. He also alleged misrepresentation and concealment relating to the price of the car.
TMS generally demurred to each count and also demurred on grounds of uncertainty. TMS argued that the first, second and third counts were barred by the two-year statute of limitations of Code of Civil Procedure section 335.1 and that the fourth count was barred by the three-year statute of limitations of Code of Civil Procedure section 338. The trial court sustained the demurrer to the first count with leave to amend and sustained the demurrer to the remaining counts without leave to amend based on the statute of limitations.
K'Zorin filed a first amended complaint against TMS and others in May 2010 alleging a single count for trespass. TMS demurred on grounds of failure to allege facts sufficient to state a cause of action and uncertainty. TMS argued that K'Zorin failed to allege that he had exclusive possession of the premises where the repossession occurred as necessary to state a cause of action for trespass. TMS also argued that K'Zorin failed to allege that TMS committed the trespass and that it could not be liable for a trespass committed by a licensed repossession agency as a matter of law. The trial court sustained the demurrer with leave to amend "only as to trespass."
K'Zorin filed a second amended complaint against TMS and others in August 2010 alleging counts for (1) trespass and (2) breach of contract. TMS demurred on grounds of failure to allege facts sufficient to state a cause of action and uncertainty. TMS argued that K'Zorin still failed to allege that he had exclusive possession of the premises where the repossession occurred, as necessary to state a cause of action for trespass. TMS also argued that K'Zorin failed to allege that TMS committed the trespass and that it could not be liable for a trespass committed by a licensed repossession agency as a matter of law. TMS also moved to strike the second count for breach of contract. The trial court sustained the demurrer to both counts without leave to amend and took the motion to strike off calendar as moot. The court entered a judgment of dismissal on December 30, 2010. K'Zorin timely appealed the judgment.
CONTENTIONS
K'Zorin contends (1) TMS is not exempt from California law and therefore is liable for wrongs committed by an independent dealership, and (2) there are triable issues of material fact as to whether TMS committed trespass and fraud.
We will disregard any additional points argued for the first time in K'Zorin's reply brief. K'Zorin has shown no reason for us to deviate from the usual rule that a reviewing court will not consider arguments raised for the first time in a reply brief. (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 362, fn. 18.)
DISCUSSION
1. Standard of Review
A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the sustaining of a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) We construe the pleading in a reasonable manner and read the allegations in context. (Ibid.) We must affirm the judgment if the sustaining of a general demurrer was proper on any of the grounds stated in the demurrer, regardless of the trial court's stated reasons. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
2. The Sustaining of the Demurrer to the Trespass Count Was Proper
K'Zorin alleges in his second amended complaint that a repossession agency entered the property where he resided and repossessed the car on January 12, 2008. He does not allege that TMS entered the property.
Business and Professions Code section 7507.13, subdivision (b) provides that the legal owner, lienholder, lessor or lessee is not liable for any act or omission by a licensed repossession agency in carrying out an assignment. TMS as lessor therefore cannot be liable for an alleged trespass by a licensed repossession agency. K'Zorin does not allege that the repossession agency was unlicensed or allege any other facts that would establish a legal basis to hold TMS liable for trespass, despite several opportunities to so allege. We therefore conclude that the sustaining of the general demurrer to the trespass count was proper.
Business and Professions Code section 7507.13, subdivision (b) states: "The legal owner, debtor, lienholder, lessor or lessee, or the agent of any of them, is not liable for any act or omission by a licensed repossession agency, or its agent, in carrying out an assignment and is entitled to indemnity from the repossession agency for any loss, damage, cost, or expense, including court costs and attorney's fees, that the legal owner, debtor, lienholder, lessor or lessee, or the agent of any of them, may reasonably incur as a result thereof. Nothing in this subdivision limits the liability of any person for his or her tortious conduct."
3. The Sustaining of the Demurrer to the Fraud Count Was Proper
K'Zorin alleged in his original complaint that TMS misrepresented and concealed the price of the car on June 6, 2006. He apparently alleged that he discovered the true price of the car the following day when he found the "sticker" in the glove compartment. He does not argue on appeal that that his complaint should be read otherwise or that he alleged discovery on some other date. He argues instead only that TMS failed to show that "the fraud was not committed."
Code of Civil Procedure section 338, subdivision (d) establishes a three-year limitations period for a fraud cause of action, running from the date of discovery of the facts constituting the fraud. K'Zorin alleges that he discovered the facts constituting the fraud on June 7, 2006, when he discovered the sticker price. His complaint filed more than three years later, on January 19, 2010, was untimely because it was barred by the three-year statute of limitations. We therefore conclude the sustaining of the general demurrer to the fraud count was proper.
4. K'Zorin Has Shown No Error in the Sustaining of the Demurrer to the Other Counts
The "ARGUMENT" section of K'Zorin's opening brief on appeal is limited to the two contentions set forth above. His lengthy "Procedural Summary," however, includes repeated references to January 25, 2008, as the true "date of loss."
California Rules of Court, rule 8.204(a)(1) states that each brief must "(B) State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority."
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K'Zorin expressly alleged in his original complaint that the repossession occurred "on Plaintiff's residence early morning, on Saturday, January 12, 2008." He also alleged that he continued to dispute the matter until January 25, 2008, and that "the date of factual loss is January 25, 2008." On appeal, K'Zorin offers no reasoned argument explaining why any cause of action would have accrued on January 25, 2008, rather than January 12, 2008, and he fails to explain why the limitations period would have begun to run on the later date. We conclude that he has shown no error in the sustaining of the demurrer to his other counts based on the statute of limitations.
DISPOSITION
The judgment is affirmed. TMS is entitled to recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J. WE CONCUR:
KLEIN, P. J.
KITCHING, J.