Opinion
A165487
12-14-2023
STEPHEN LOPEZ, Plaintiff and Appellant, v. LOPEZ WEST PROPERTIES, LLC, et al., Defendants and Respondents.
NOT TO BE PUBLISHED
(Contra Costa County Case No. C20-00769)
Petrou, J.
The trial court granted respondents' motion for summary judgment after finding appellant Stephen Lopez's breach of contract claim was time-barred. We affirm.
Factual and Procedural Background
Lopez West Properties Formation
In 2005, Bernard and Laura Lopez sold their interest in certain real properties they owned and operated as part of an apartment rental business to three of their four sons: Lauren Lopez, Matthew Lopez, and Dana Lopez.According to Dana, the three brothers assumed the mortgages on the properties, which were then transferred to Lopez West Properties, LLC (LW Properties) (Lauren, Matthew, Dana, and LW Properties are collectively referred to as respondents). Following the transaction, Lauren, Matthew, and Dana each owned LW Properties in equal one-third interests. Dana has served as LW Properties' sole manager since its formation.
Because several of the parties share the same last name, we refer to family members by their first names; no disrespect is intended.
Option Purchase Contract and Disputed Extension
Appellant - Bernard and Laura's eldest son and Lauren, Matthew, and Dana's older brother - did not join his brothers in the purchase of the properties and was unable to participate as an owner, operator, or member of LW Properties due to "existing obligations and time constraints." At the time, appellant was facing legal troubles, and there was a concern he was exposed to certain financial liabilities.
The parties contemplated appellant's future participation in LW Properties as a full owner with an equal ownership interest in the company. They entered into an "Option to Purchase" contract (Option Contract), dated June 30, 2005, which granted appellant an option to purchase 25 percent of the membership equity interests in LW Properties subject to certain terms and conditions. To exercise the option, appellant was required to give his brothers written notice accompanied by a certified check or bank draft payable in the amount of the" '[p]urchase [p]rice,'" defined generally as 25 percent of any expenses personally advanced by the members to LW Properties. Upon appellant's compliance with all the terms and conditions of the agreement and upon receiving the notice and payment of the purchase price, respondents were required to "sell and transfer to [appellant] the Optioned Property," defined as 25 percent of the membership equity interests from LW Properties. The agreement further required that as evidence of the transfer, respondents execute in appellant's favor a bill of sale along with "such other documents to evidence the sale and transfer as [appellant] reasonably requests." Appellant had until June 25, 2010 to exercise or extend the option. The extension was "at the sole option of [appellant], for up to an additional 10 years beyond the termination date [June 25, 2010]."
In February 2010, Laura died.
The June 25, 2010 deadline for appellant to extend or exercise his option under the Option Contract came and went. No party asserts appellant exercised the option by this deadline, but the parties dispute whether appellant properly extended his option by the deadline. According to appellant, he extended the Option Contract to June 25, 2020, and (though not required) provided written notice of the extension to Dana. Respondents assert that appellant never timely informed them verbally or in writing that he had extended his option.
Appellant's First Option Exercise (2012)
By 2012, appellant's legal problems had intensified. He and his company were confronting multiple state court lawsuits alleging claims of fraud and breach of contract. Hundreds of thousands of dollars in civil state court judgments were entered against them.
Around this time, appellant wrote respondents a letter, dated December 12, 2012, to exercise his option to purchase the 25 percent interest in LW Properties:
By this letter memo, I am exercising the option to purchase take ownership over the remaining one quarter interest in Lopez West Properties, LLC . . . I am looking forward to being included in the decision-making process as a beneficiary.
While respondents discussed the letter and concluded appellant's option exercise was invalid because appellant had not properly extended his option by the June 25, 2010 deadline, Dana did not immediately respond to appellant's letter.
In March 2013, appellant was indicted in a separate federal action with multiple criminal charges. In October 2014, appellant pled guilty to two counts of wire fraud, and he was sentenced to federal prison for 24 months and ordered to pay $1.3 million in restitution to five victims. Appellant was incarcerated from April 2014 to October 2015 and was in a halfway house from October 2015 to January 2016.
Appellant's Second Option Exercise and Response (2015)
Following his release from prison, appellant sent Dana another letter, dated December 28, 2015, re-exercising his option to become a member of LW Properties, writing in relevant part:
I have written to you about my interest in Lopez West, LLC, more than once.... I first wrote to you and mailed to your . . . address in June of 2010 a signed notice extending my option for the additional 10 years per the Option to Purchase Agreement of June, 2005. I had previously verbally extended the option, which was sufficient under the Agreement. Next, I mailed you . . . a notice dated December, 2012, exercising the option going forward to obtain, via a trust instrument, the one-quarter interest in Lopez West, LLC. Finally, during my incarceration, I wrote and mailed to you . . . a handwritten letter that . . . requested an update regarding the one-quarter interest in Lopez West.
You have not responded via mail, email, or verbally to any of the above referenced letters.
I am assuming that you have not responded because of your desire to protect the one-quarter interest and also the integrity of the assets of Lopez West. I am assuming also that the exercise letter I sent you in 2012 was complied with and you have been properly administering the one-quarter interest in Lopez West, LLC, for the years 2012, 2013, 2014, and 2015.
So, by this letter, and the enclosed $2.00 money order made out to Lopez West, LLC, for the option price, if needed, in order to be fully compliant with the Option Agreement . . . I am formally re-exercising the one-quarter interest in Lopez West, LLC, as of December, 2012, the date of the exercise letter mailed to you, and to which you have not responded.
I would be interested in selling the one-quarter interest in Lopez West, LLC. Such a sale could be a one-time outright sale transaction, probably best based upon a third-party valuation of the assets. I understand that at this point most or all of any sale assets would be encumbered by promissory notes in the name of the estate. In the alternative, I would be willing to work out a financing option whereby the trust carries the debt, which is paid on an installment sale basis from income over a period of years at an agreed upon interest rate. That way the Lopez West assets are not compromised by the sale and you no longer have to deal with me. Let me know if either alternative will work for the company as a sale is my preference.
In January 2016, in an undated letter (referred to as the January 2016 letter), Dana responded to appellant in full as follows:
I received your December 28, 2015 letter requesting 1/4% ownership in Lopez West Properties LLC. Neither Lauren, Matt nor I ever received from you an extension of the Option Exercise Period by June 25, 2010 as required per paragraph number two of the Option to Purchase agreement you signed in 2005. As such, we can't comply with any of your demands. If you have proof of mailing of the letter you allegedly sent on June 25, 2010, please provide it to me. Otherwise, your Option to Purchase terminated on June 26, 2010 and your "Exercise of the Option to Purchase ¼ Interest" note dated December 12, 2012 is invalid.
In addition, even if you had properly extended the Option Exercise Period and properly exercised your option to purchase, we would be unable to comply with your request to transfer your interest to the "Bernard &Laura Lopez Family Trust." That trust was created by Dad and Mom for you in the 90's and it terminated per the original trust documents when you turned fifty-five. Moreover, your request to transfer your interest to the "Bernard &Laura Lopez Family Trust" violates paragraph four ("Transfer of Optioned Property") and five ("Non-Assignability of Option") of the Option to Purchase agreement.
Per your previous written request, I am sending this letter to you in care of [J.F.] at the above address. At this time I have no other way of contacting you and understand that you will be released from Sacramento, or wherever you are tomorrow. Feel free to email, call or text me. If you'd like to set up a meeting with Lauren, Matt and me to discuss this further let me know.
Appellant responded to Dana in a handwritten letter, dated February 16, 2016, stating in relevant part: "I received your letter and it was as I had been expecting. I will be responding when I have some time, which is currently limited with my work." Appellant made no request for a meeting.
In March 2016, Bernard died.
By letter dated May 27, 2016, appellant wrote all three of his brothers to re-address the January 2016 letter and re-exercise his option. Relevant provisions of the letter stated:
I am in receipt of your (Dana's) letter (letter not dated) in response to my letter dated December 28, 2015, reiterating my exercise of the option extension provision in the Option to Purchase agreement, dated June 30, 2005, and my subsequent exercise of the same option as of December 12, 2012. The extension and the exercise give me the right to a one-quarter interest in Lopez West, LLC, as of December 12, 2012.
I have asked you repeatedly, both in writing and verbally, for confirmation of and participation in my one-quarter interest of Lopez West, to which you have not responded until your letter in response to my certified letter of December 28, 2015. After my incapacitation over the last two to three years, I am now able to follow up. My expectation was that a letter such as this would not and should not be required, but my expectation clearly and sadly was incorrect.
[Y]ou state in your letter that we can 'set up a meeting with Lauren, Matt, and me (Dana) to discuss this further.' There is no need for a discussion. I have fully complied with the Option to Purchase agreement, both in its extension and in its exercise notice provisions. . . This matter is extremely serious, and I take it, and will take it, very seriously if you continue to stonewall and claim through unfounded legalisms that one-quarter of Lopez West since year 2012 does not belong to me.
After Dad died, it was my personal desire that, in his honor, everything associated with his death go as smoothly as possible, which is the reason I chose not to respond until now....
Appellant concluded the letter as follows: "I expect an immediate response and an equally immediate and sincere effort to transfer the full value of my one-quarter interest since year 2012, along with all documentation required for full verification of that value."
The parties never met to discuss the matter further. Rather, in a letter dated June 7, 2016, retained counsel sent appellant a letter on Dana's behalf, again denying appellant's exercise of the option:
I write on behalf of our client, Dana Lopez, in response to your two May 2016 letters. As explained below, Dana Lopez cannot grant your requests.
Regarding your May 27, 2016 Option to Purchase letter, Dana Lopez is unable to grant your request absent valid proof of your purported actions. As a former attorney you must recognize the import of documenting and providing proof of mailing/delivery of an extension option. Your later incarceration was not an obstacle to doing so. Counsel also noted that respondents were willing to meet with appellant to discuss "these issues" and options for splitting estate assets unrelated to LW Properties.
Appellant's Third Option Exercise
On April 28, 2020, appellant emailed his brothers another demand reexercising his option. After noting that he had exercised his option on December 12, 2012 and had "repeatedly sought to confirm the Option exercise," he stated: "I am, through this email, without prejudice to any argument that the Option has already been effectively exercised, again exercising the Option to the extent it has not already been exercised." Appellant further requested Dana make available to him copies of all financial records, bank and brokerage statements, property sales, purchases, and closing documents, grant deeds, and more for LW Properties from December 12, 2012 to the present.
On April 30, 2020, respondents replied to appellant's email as follows: "Your exhaustive list of requests is neither possible nor obligatory. [¶] We have already responded to a similar email years ago. Please see attached letter from our attorney."
Appellant's Lawsuit
On April 29, 2020 - the day after his email demand re-exercising his option - appellant filed suit against respondents, alleging six causes of action for breach of contract, conversion, breach of fiduciary duty, common count, constructive trust, and accounting. The court granted respondents' demurrer to the second cause of action for conversion on statute of limitations grounds. The court also granted respondents' motion to compel arbitration with respect to all the remaining claims except for breach of contract and stayed the arbitration. Appellant's First Amended Complaint, the operative complaint, was filed on December 14, 2020.
On May 18, 2021, respondents moved for summary judgment, arguing that appellant's sole remaining, non-arbitrable breach of contract claim was time-barred given appellant initiated his lawsuit after the four-year statute of limitations for contract claims expired. On June 2, 2021, appellant filed a cross-motion for summary adjudication on the breach of contract claim.
In September 2021, following a hearing on the two motions, the trial court granted respondents' summary judgment motion on the grounds that the breach of contract claim was time-barred. Acknowledging the dispute over whether appellant had extended the Option Contract by June 25, 2010, the court assumed he had properly and timely extended it for purposes of its analysis. The court found appellant had exercised his option on December 12, 2012, December 28, 2015, and in April 2020. When appellant first exercised the option in December 2012, respondents' "refusal to give Plaintiff his 25% interest in the company constituted breach of the Option Agreement in 2012." Applying the delayed discovery rule, the court found the cause of action for breach of contract did not begin to accrue in 2012 because, among other reasons, respondents did not discuss the 2012 option exercise with appellant and Dana did not inform appellant he was not a member of LW Properties until January 2016.
The court found that Dana informed appellant that he had not timely exercised his option through the January 2016 letter. The court further found the language in the January 2016 letter - that respondents had never received an extension of the option agreement, claimed the option had expired in 2010, and conveyed that appellant's exercise of the option on December 12, 2012 was" 'invalid'" - "would put any reasonable person on notice of the earlier breach. Therefore, the January 2016 letter was sufficient to start the running of the statute of limitations."
Ultimately, the court found the statute of limitations on appellant's breach of contract claim began running no later than February 15, 2016 (the day before appellant sent his letter confirming receipt of the January 2016 letter), and that the four year statute of limitations for breach of contract claims expired on February 15, 2020. Since appellant did not file his complaint until April 2020, his breach of contract claim was time-barred. The court added that appellant had not shown any triable issues of any material fact related to the running of the statute of limitations.
At the hearing on the motion, appellant's counsel had requested the court continue the hearing and allow the parties to submit facts and evidence on the question of when the breach occurred, contending that the December 2012 date of breach determined by the court was never raised or argued by the parties. The court rejected this request. The court also denied appellant's summary adjudication motion as moot considering its ruling on the summary judgment motion.
Appellant filed an unsuccessful motion for reconsideration. In its written denial order, the court noted that appellant had failed to show any new or different facts or circumstances, as required for reconsideration under Code of Civil Procedure section 1008. Appellant also filed a motion for new trial under section 657 raising arguments akin to those in his reconsideration motion; this too was denied. He now appeals.
All further statutory references are to the Code of Civil Procedure.
Discussion
A. Standard of Review
"Summary judgment is appropriate when there are no triable issues of material fact such that the moving party is entitled to judgment as a matter of law on all causes of action." (Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 318 (Choi).)
"We review an order granting summary judgment de novo, applying the same three-step analysis as the trial court. [Citations.] First, we identify the causes of action framed by the pleadings. Second, we determine whether the moving party has satisfied its burden of showing the causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to that cause of action. Third, if the moving party has made a prima facie showing that it is entitled to judgment as a matter of law, the burden of production shifts and we review whether the party opposing summary judgment has provided evidence of a triable issue of material fact as to the cause of action or a defense. [Citations.] A party opposing summary judgment may not 'rely upon the allegations or denials of its pleadings' but must set forth 'specific facts' beyond the pleadings to show the existence of a triable issue of material fact. [Citation.] The evidence must be viewed in the light most favorable to the nonmoving party." (Choi, supra, 18 Cal.App.5th at p. 318.) We independently determine whether the record supports the trial court's conclusions that the asserted claims fail as a matter of law, and we are not bound by the trial court's stated reasoning or rationales. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)
B. Due Process
As an initial matter, appellant argues that trial court violated his due process rights "by deciding a dispositive issue not raised by the parties." Specifically, he claims the court's determination that respondents breached the option agreement in 2012 when appellant first attempted to exercise his option was never argued by the parties. Thus, according to appellant, the trial court should have allowed the parties to respond to this previously unbriefed "dispositive issue," and its failure to do so violated his due process rights and constituted reversible error. We do not find any due process violation. We also do not find any error in the trial court's decision on the reconsideration or new trial motion.
In Juge v. County of Sacramento (1993) 12 Cal.App.4th 59 (Juge), the court acknowledged "the trial court has the inherent power to grant summary judgment on a ground not explicitly tendered by the moving party when the parties' separate statements of materials facts and the evidence in support thereof demonstrate the absence of a triable issue of material fact put in issue by the pleadings and negate the opponent's claim as a matter of law." (Id. at p. 70.) "However, when the trial court grants a summary judgment motion on a ground of law not explicitly tendered by the moving party, due process of law requires that the party opposing the motion must be provided an opportunity to respond to the ground of law identified by the court and must be given a chance to show there is a triable issue of fact material to said ground of law. [¶] Otherwise, a party which could have shown a triable issue of material fact put in issue by the complaint or answer but neglected to do so because the point was not asserted by the moving party as a ground for summary judgment would be deprived unjustly of the chance to demonstrate the existence of a triable issue of material fact which requires the process of trial." (Id. at pp. 70-71.)
Here, there was no violation of appellant's due process rights based on the principles outlined in Juge. Respondents moved for summary judgment on the basis that his breach of contract claim was time-barred, and the court granted the motion on that basis. This was not a case where the court based summary judgment on a legal ground not specified in the summary judgment moving papers. (See, e.g., Juge, supra, 12 Cal.App.4th at pp. 63-64 [deciding summary judgment based on lack of causation when the moving party based summary judgment motion on adequacy of their design of bike trail on which plaintiff was injured].) The trial court's finding that the breach occurred earlier than argued by respondents (in 2012, not in early 2016) did not constitute "a ground of law not explicitly tendered by the moving party" (id. at p. 70) or present a new dispositive issue that required supplemental briefing. Further, the facts of appellant's December 2012 exercise and respondents' disregard of that exercise were not facts that the court independently identified from or located in the record. Appellant himself presented them as undisputed material facts, which the court could properly consider in its ruling.
Moreover, we see no due process violation because appellant was allowed to contest the court's tentative and argue against the 2012 accrual date. Prior to the hearing on the motion for summary judgment, the court issued a six-page tentative ruling setting forth the basis for its order granting respondents' summary judgment motion and rejecting appellant's various arguments. Upon receiving the tentative, appellant's counsel emailed the court setting forth the alleged shortcomings of the tentative ruling, including the court's decision that the Option Contract was first breached in December 2012. The court stated that it reviewed counsel's "lengthy email." At the hearing, appellant's counsel argued that when the court issues a holding on grounds that the party moving for summary judgment did not raise, due process requires the responding party be provided with an opportunity to respond to that ground identified by the court and show there is a triable issue of fact to said ground. Counsel further argued disputed issues of fact with respect to the 2012 accrual date that undermined the court's tentative ruling. Under section 437c, subdivision (h), counsel requested that the court continue the hearing and allow parties "to submit facts and evidence on this question of when did the breach occur" and further clarified it did not seek the continuance to conduct further discovery. Following the parties' arguments, the court took the matter under submission to allow the court "one last look again at the papers" to see whether additional briefing was justified. In adopting its tentative ruling granting summary judgment, the court denied appellant's request for additional briefing as improper and unmeritorious. Under these circumstances, appellant was given ample opportunity to be heard.
Section 437c, subdivision (h) states: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due."
Luebke v. Automobile Club of Southern California (2020) 59 Cal.App.5th 694, which appellant argues presents "nearly identical" circumstances, is instead readily distinguishable. There, the defendants sought summary judgment on the negligence claim against them based on lack of causation. (Id. at pp. 697, 699.) The trial court found causation disputed but sua sponte concluded that one of the defendants owed no duty to plaintiff and granted it summary judgment on that basis. (Id. at pp. 701702.) The Court of Appeal reversed, explaining the trial court improperly decided the issue of duty where the summary judgment motion was based solely on causation and the court reached out to decide an issue not addressed in the moving papers and thus deprived the plaintiff of his right to oppose summary judgment. (Id. at pp. 706-708.) Here, the trial court did not grant respondents summary judgment based on a legal issue not specified in their moving papers. Respondents moved for summary judgment based on the statute of limitations, and the court granted summary judgment on that basis.
Appellant's contention that the court erred in denying his motion for reconsideration is equally unavailing. A party seeking reconsideration of a court's order under section 1008 must show the existence of new or different facts, circumstances, or law, and explain why they were not produced at the original hearing. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) We review a trial court's ruling on a motion for reconsideration under an abuse of discretion standard. (Ibid.) Thus, whether appellant proffered new or different facts or circumstances sufficient to satisfy the requirements of section 1008 is a "question confided to the sound discretion of the trial court, with the exercise of which [the appellate court] will not interfere absent an obvious showing of abuse." (Graham v. Hansen (1982) 128 Cal.App.3d 965, 971.) Since the facts surrounding appellant's 2012 option exercise and respondents' disregard of that exercise were not new - and again, were presented by appellant himself as undisputed material facts - the trial court did not abuse its discretion in denying reconsideration.
We will not reach appellant's contention that the court erred in denying his motion for new trial." 'Appellate briefs must provide argument and legal authority for the positions taken. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived."' [Citation.] 'We are not bound to develop appellants' arguments for them.'" (Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill).) Appellant has not identified the statutory basis for his new trial claim, let alone provided any authority in support of his contention the court erred in denying it. Accordingly, we shall deem it forfeited.
C. Statute of Limitations
As noted, the trial court granted respondents summary judgment motion based solely on their statute of limitations defense. Appellant's remaining contentions on appeal concern why the trial court erred on this issue. We reject them.
1. General Principles
The statute of limitations for a particular cause of action prescribes a" 'definite period[] of time'" within which a plaintiff must commence the cause of action. (Citizens for a Green San Mateo v. San Mateo County Community College Dist. (2014) 226 Cal.App.4th 1572, 1588 (San Mateo).) It is designed to" 'prevent stale claims, give stability to transactions, protect settled expectations, promote diligence, encourage the prompt enforcement of substantive law, and reduce the volume of litigation.'" (Ibid.) "[T]he fundamental purpose of the statute [of limitations] is to give defendants reasonable repose, that is, to protect parties from defending stale claims. A second policy underlying the statute is to require plaintiffs to diligently pursue their claims. Because a plaintiff is under a duty to reasonably investigate and because a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, will commence the limitations period, suits are not likely to be unreasonably delayed, and those failing to act with reasonable dispatch will be barred." (Jolly v. Eli Lilly &Co. (1988) 44 Cal.3d 1103, 1111-1112 (Jolly).)
The statute of limitations for breach of written contract "is four years from the time the claim accrues." (Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1341; § 337.) A breach of contract claim "accrues at the time of breach, which then starts the limitations period running." (Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1120 (Cochran); Church v. Jamison (2006) 143 Cal.App.4th 1568, 1583 ["a breach of contract claim does not accrue until there has been a breach of the contract"].) "[B]reach of contract ordinarily occurs upon the promisor's failure to render the promised performance." (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 958 (McCaskey) ["[T]o pinpoint the time of an alleged breach for purposes of the statute of limitations, it is necessary to establish what it was the defendant promised to do, or refrain from doing, and when its conduct diverged from that promise."].)
However, the delayed discovery rule "may be applied to breaches [of contract] which can be, and are, committed in secret and, moreover, where the harm flowing from those breaches will not be reasonably discoverable by plaintiffs until a future time." (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832.) A plaintiff's inability to discover a cause of action may occur "when it is particularly difficult for the plaintiff to observe or understand the breach of duty, or when the injury itself (or its cause) is hidden or beyond what the ordinary person could be expected to understand." (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1248.) Consequently, the delayed discovery rule "delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)
"While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper." (Jolly, supra, 44 Cal.3d at p. 1112.)
2. Anticipatory Breach
In addressing the merits of the court's statute of limitations ruling, appellant first argues that the law of anticipatory breach preserved his contract claim. He contends the trial court erroneously ignored the rule that for an anticipatory contract breach a plaintiff gets to elect whether to sue on the repudiation or to wait for performance. In appellant's view, there was no breach in 2012 because performance was not yet due. It was only due when respondents were required to include him in distributions but did not, which could not have occurred until both his parents had passed, that is, in 2016.
Appellant is correct that a mere anticipatory breach - repudiation of the contract prior to the time for performance - does not necessarily start the running of a statute of limitations. Where a promisor merely announces that it will not honor a promise, "such a repudiation may constitute an anticipatory breach, giving the aggrieved promisee the option of suing immediately. [Citation.] But it does not accelerate the accrual of a cause of action for limitations purposes; the promisee remains entitled to wait until performance is due and the promisor has failed to perform, i.e., to do the thing promised." (McCaskey, supra, 189 Cal.App.4th at p. 958.) However, "[a] repudiation at the time performance is due is not an anticipatory breach; it is an actual breach, and the statute of limitations begins to run at once." (1 Witkin, Summary 11th Contracts § 886 (2023).)
We disagree that appellant's breach of contract claim against respondents is properly characterized as a claim for anticipatory repudiation. " 'California law recognizes that a contract may be breached by nonperformance, by repudiation, or a combination of the two.' [Citations.] .... Nonperformance typically refers to an unjustified or unexcused failure to perform a material contractual obligation when performance is due. [Citation.] But '[t]here can be no actual breach of a contract until the time specified therein for performance has arrived.' [Citation.] By contrast, 'an anticipatory breach of contract occurs when the contract is repudiated by the promisor before the promisor's performance under the contract is due.' [Citation.] In other words, 'if a party to a contract expressly or by implication repudiates the contract before the time for his or her performance has arrived, an anticipatory breach is said to have occurred.'" (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 549-550 (HP).) An actual breach of contract occurs at the time performance is due, while an anticipatory breach occurs before performance is due. (1 Witkin, Summary 11th Contracts § 886 (2023).)
Here, appellant's breach of contract claim was premised on respondents' nonperformance (their refusal to accept his exercise of the option), not an anticipatory repudiation bestowing upon appellant an election of remedies. In December 2012, appellant attempted to exercise the option provided for in the Option Contract. He received no response from respondents for years. In December 2015, he attempted to re-exercise his option again in writing and with funds enclosed for the purchase price. In January 2016, Dana responded that respondents were unable to comply with any of appellant's demands and that his initial exercise of the option in December 2012 was "invalid." Further, the Option Contract required that upon appellant's compliance with all the terms and conditions of the agreement and upon receipt by respondents of written notice of appellant's exercise of the option and delivery of funds for the purchase price, respondents had to "sell and transfer" to appellant 25 percent of the membership equity interests from LW Properties. Certainly by December 2015, appellant believed he had done what was necessary to exercise the option by providing written notice and including a money order "in order to be fully compliant with the Option Agreement."
Nonetheless, it is undisputed that appellant's repeated efforts to exercise his option were met in January 2016 with a letter informing him his exercise was invalid, and no sale or transfer of interest in LW Properties to appellant ever followed, as contemplated by the Option Contract. Respondents' failure to accept appellant's exercise or to sell or transfer to him a 25 percent share of the company after appellant purportedly satisfied the requirements for exercising the option constituted nonperformance. (See HP, supra, 65 Cal.App.5th at 550 ["[n]onperformance typically refers to an unjustified or unexcused failure to perform a material contractual obligation when performance is due"]; McCaskey, supra, 189 Cal.App.4th at p. 958 ["to pinpoint the time of an alleged breach for purposes of the statute of limitations, it is necessary to establish what it was the defendant promised to do, or refrain from doing, and when its conduct diverged from that promise"].) This response was not an announcement of respondents' intent to refuse the option exercise or not abide by its contractual obligations sometime in the future. Accordingly, the trial court did not err in concluding respondents' response constituted a present breach, not an anticipatory repudiation that gave appellant the option of suing immediately or waiting until future performance was due.
Appellant contends the trial court erred by finding a breach occurred before performance was due. In his view, performance of the contract "was only due when the defendants were first legally required to take significant action to fulfill the agreement's requirements and intended effect." He asserts that "[i]ncluding him in any distribution was the fundamental performance that the option agreement required and until that didn't happen, there was only a repudiation and some hot air." But appellant provides no citation to the record to support his contention that fund distribution was the fundamental performance required by the Option Contract. If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Thus, appellant's failure to provide any record citations to support this argument waives the argument.
Moreover, appellant's contention that distributing funds to him was the fundamental performance of the Option Contract does not appear to align with the terms of that agreement. By its terms, the fundamental performance contemplated by the agreement - entitled "Option to Purchase" - was providing appellant the option to purchase equity interests in LW Properties. As noted, this never occurred after appellant attempted to exercise his option.
3. Whether Respondents' Denial Was Unequivocal
Appellant next contends that the statute of limitations could not have started to run before April 29, 2016 (or four years before his April 30, 2020 complaint was filed) because none of respondents' communications before that point "constituted an unambiguous refusal to perform."
As noted, the statute of limitations for breach of a written contract is four years (§ 337) and accrues at the time of breach (Cochran, supra, 56 Cal.App.4th at p. 1120). The parties do not dispute that in the case of a written agreement a breach occurs, and the statute of limitations triggered, when the promisor's repudiation reflects an unambiguous and unequivocal refusal to perform. Where they disagree is whether respondents' repudiation constituted an unequivocal refusal to perform.
Here, appellant fails to convince us that respondents' response to his efforts to exercise his option was ambiguous or equivocal or that there are triable issues of fact on this issue. The terms of the January 2016 letter left no ambiguity that respondents rejected appellant's efforts to exercise the option: "I received your December 28, 2015 letter requesting 1/4% ownership in Lopez West Properties LLC. Neither Lauren, Matt nor I ever received from you an extension of the Option Exercise Period by June 25, 2010 as required per paragraph number two of the Option to Purchase agreement you signed in 2005. As such, we can't comply with any of your demands. If you have proof of mailing the letter you allegedly sent on June 25, 2010, please provide it to me. Otherwise, your Option to Purchase terminated on June 26, 2010 and your 'Exercise of the Option to Purchase % Interest" note dated December 12, 2012 is invalid." (Emphasis added.) Appellant acknowledged receipt of this letter on February 12, 2016, stating that he received the letter and "it was as [he] had been expecting." Respondents' message to appellant advising him that they cannot comply with his demands and informing him they viewed his option exercise as invalid reflected an unambiguous and unequivocal denial of his claim.
Moreover, respondents' non-response to appellant's December 2012 outreach coupled with the January 2016 letter were sufficient to give a reasonable person notice of a claim. "[T]he limitations period begins once the plaintiff 'has notice or information of circumstances to put a reasonable person on inquiry....' [Citation.] A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has suspicion of wrongdoing, and therefore an incentive to sue, [he or] she must decide whether to file suit or sit on [his or] her rights. So long as suspicion exists, it is clear that the plaintiff must go find the facts; [a plaintiff] cannot wait for the facts to find [him or] her." (Jolly, supra, 44 Cal.3d at pp. 1110-1111.) By January 2016, it was evident that respondents had no intention of allowing appellant to purchase a 25 percent equity interest in LW Properties, and by February 2016, appellant was made aware of this position. This was enough to start the limitations period in February 2016.
Appellant suggests there was a triable issue of fact as to whether the exercise of his option was unequivocally repudiated. He highlights the portions of the January 2016 letter which specifically invited him to reach out to his brothers to discuss and which asked him to provide proof of his extension without which they would not be "otherwise" able to recognize his claim. He notes that respondents' rejection was premised on their understanding that the option had not been extended, and if respondents had proof of his extension, they were willing to revisit the issue. He argues that "the January 2016 letter clearly indicated that performance was still possible if the objections . . . were resolved."
Respondents' remarks in the January 2016 letter inviting further discussion and requesting proof of extension did not render their rejection uncertain. In Migliore v. Mid-Century Ins. Co. (2002) 97 Cal.App.4th 592, the insurer's letter denying benefits told the insured:" 'This decision is based upon the information available to us at this time. If you have any other information which you believe may effect [sic] [the insurer's] decision on your claim, please let us know so we can consider it.'" (Id. at p. 605.) The court concluded such language did not change the clear refusal to provide benefits into an equivocal denial. "Rather, this evidence suggests that [the insurer] was willing to reconsider its denial upon receipt of further pertinent information. A statement of willingness to reconsider does not render a denial equivocal.... The letter states that no further benefits will be provided beyond those previously paid. This is unequivocal language that no further payment on the claim would be made." (Ibid.) Similarly, the remarks in the January 2016 letter expressing a willingness to discuss or accept proof of the extension do not make respondents' rejection provisional. Their letter states they cannot comply with appellant's demands and his exercise was invalid; it reflected a clear and unequivocal denial of his exercise. Appellant has failed to show a triable issue of material fact regarding his claim that respondents' repudiations were not unequivocal.
4. Whether Accrual of Contract Claim Required Respondents' to Show When Appellant was First Injured
For his next challenge to the court's statute of limitations ruling, appellant observes that actual damages are a necessary element of a breach of contract claim and argues that it was "incumbent on [respondents] to show when their repudiation and refusal to recognize [his] claim first caused injury." He contends respondents failed to meet this burden and the trial court "once again erred" in "entirely ignoring [his] arguments on this missing element of [respondents'] case."
Appellant has forfeited this argument by failing to cite legal authority or to make any reasoned legal argument supporting his view of accrual." 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' [Citation.] 'We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.'" (Cahill, supra,194 Cal.App.4th at p. 956.) For this contention, appellant's entire analysis consists solely of two sentences, which are summarized above. While appellant sets forth "hornbook law" on the elements of a contract claim and for his point on accrual, he provides no authority to support his apparent point that respondents' statute of limitations defense fails due to their failure to show when they first caused appellant injury. Further, appellant's undeveloped argument fails to consider the undisputed facts presented by respondents that at no time after the issuance of the January 2016 letter was he ever treated as a member of LW Properties.
Even had appellant properly developed this argument, we are not persuaded that it would have avoided the statute of limitations defense, as several cases hold that a claim for breach of contract accrues at the time of the breach, and the statute of limitations begins to run at that time regardless of whether any damage is apparent or ascertainable. (Ram's Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071, 1084; Menefee v. Ostawari (1991) 228 Cal.App.3d 239, 246 ["Analogously, a cause of action for breach of contract ordinarily accrues at the time of breach regardless of whether any substantial damage is apparent or ascertainable."]; 3 Witkin, Cal. Proc. 6th Actions, § 567 (2023) ["A cause of action for breach of contract ordinarily accrues at the time of breach, and the statute begins to run at that time regardless whether any damage is apparent or whether the injured party is aware of his or her right to sue."].)
5. Equitable Estoppel
Finally, appellant argues that in granting respondents' summary judgment on statute of limitations grounds, the trial court erroneously concluded the doctrine of equitable estoppel did not preclude his contract claim from being time-barred. Based on evidence he introduced, appellant claims triable factual disputes existed as to estoppel and that a reasonable trier of fact would have concluded that respondents were estopped from asserting the statute of limitations defense.
Although the purpose of the statute of limitations is to protect defendants from having to defend stale claims, an equitable estoppel may arise if the plaintiff"' "has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss." '" (Vu v. Prudential Property &Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1152-1153.) "A defendant whose conduct induced [a] plaintiff[ ] to refrain from filing suit within the [limitations] period might be equitably estopped to assert that the statute of limitations had expired." (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 367 (Lantzy); Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674, 689-690 ["An estoppel 'arises as a result of some conduct by the defendant, relied on by the plaintiff, which induces the belated filing of the action.' "].) It is a "venerable principle" that"' "[o]ne cannot justly or equitably lull his adversary into a false sense of security, and thereby cause his adversary to subject his claim to the bar of the statute of limitations, and then be permitted to plead the very delay caused by his course of conduct as a defense to the action when brought." '" (Lantzy, at p. 383.)
Here, the trial court determined equitable estoppel did not apply because the January 2016 letter informed appellant that respondents did not accept his exercise of the option. The court found that appellant and respondents never discussed the letter, and only appellant sent follow-up letters in February and May 2016. When respondents' outside counsel wrote appellant in June 2016, she reiterated that respondents did not accept appellant's option exercise. Based on this evidence and appellant's failure to offer any other evidence of other actions undertaken by respondents that induced him to refrain from suing, the court found that the evidence established that respondents "did not lull [appellant] into inaction."
The trial court did not err in concluding the equitable estoppel doctrine did not apply. Appellant does not identify any evidence from which it could be reasonably inferred that his delay in filing suit beyond four years after receiving and acknowledging the January 2016 letter was induced by any conduct or misrepresentation which occurred after receiving the letter and which affected the necessity of filing suit. The evidence he cites of respondents' alleged inducements consists of a 2011 invitation to attend "an in-person business meeting," routine emails he was sent on the status of the company from 2008 to 2013, and respondents' refusal to tell him they thought his claims were invalid. All this proffered evidence of inducement, however, pre-dates the January 2016 letter and could not have induced him to refrain from filing suit within the four-year limitations period that followed his discovery of the breach in February 2016. Appellant has not identified undisputed evidence of any conduct or misrepresentation by respondents that lulled him into inaction during the limitations period. Accordingly, appellant has failed to show a triable issue of material fact regarding his claim that respondents were equitably estopped from asserting their statute of limitations defense.
Disposition
The judgment is affirmed. The parties are to bear their own costs on appeal.
WE CONCUR: TUCHER, P.J., FUJISAKI, J.