Opinion
B159807.
10-28-2003
GLENN WRIGHT, Plaintiff and Appellant, v. BARBARA STAINBACK, Defendant and Appellant.
Mintz & Werner, Marshall G. Mintz for Defendant and Appellant. Glenn Wright, in pro. per., for Plaintiff and Appellant.
We hold that pursuant to Code of Civil Procedure section 338, subdivision (c), a cause of action for conversion generally accrues when the injury, i.e. the conversion, occurs and not upon the date of discovery. Since the conversion in the present case occurred in 1989 when defendant Barbara Stainback sold plaintiff Glen Wrights Steinway piano, the three-year statute of limitations bars Wrights cause of action.
FACTUAL AND PROCEDURAL SUMMARY
In July of 1984, Wright was arrested on federal charges of kidnapping for financial gain. While Wright was incarcerated and awaiting trial, his former secretary, Stainback, was one of the few people who would accept his calls. She sent him clothing, personal items and the like that bolstered his spirits. Wright authorized Stainback, to remove a Steinway piano from his apartment, as he feared his landlord might seize his property to pay for delinquent rent. Neither Wright nor Stainback discussed how long she would keep the piano, but Wright did not intend to give her the piano as a gift.
In December of 1984, Wright was convicted in federal district court of the kidnapping charges. Initially, Wright and Stainback maintained some contact, but she became weary of his frequent telephone calls and demands for personal supplies, and she stopped accepting his collect calls. Although Wright had been sentenced to three consecutive life sentences plus a determinate term of 106 years, under applicable federal criminal law he became eligible for parole in 10 years.
In 1999, Wright was paroled from prison. Several months later, in May of 2000, Wright located Stainback and demanded that she return his piano. Stainback, however, had sold the piano in 1989.
Wright sued Stainback for, inter alia, conversion. The trial court applied a late discovery rule, thus permitting Wrights cause of action for conversion. After a bench trial, the court found in favor of Wright on his conversion claim and set damages at $9,000, minus $1,500 for the expenses Stainback incurred regarding the pianos transportation and maintenance, for a total damage award of $7,500.
Stainback appeals, contending that the three-year statute of limitations bars the cause of action for conversion. Wright cross-appeals, alleging error in the failure to award pre-judgment interest.
DISCUSSION
As explained by our Supreme Court in Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, "Ordinarily the statute of limitations applying in conversion actions (Code Civ. Proc., § 338, subd. 3 [now subd. (c)] begins to run from the date of the conversion even though the injured person is ignorant of his rights.
[Citations.] This rule, however, is not absolute; for example, where there has been a fraudulent concealment of the facts the statute of limitations does not commence to run until the aggrieved party discovers or ought to have discovered the existence of the cause of action for conversion. [Citations.]" (Id. at p. 561, italics added.)
Here, however, there was no allegation of any circumstances, such as a fiduciary relationship, that would impose a duty of full disclosure of material facts, which might warrant a finding of fraudulent concealment and thus delay accrual of the cause of action. (Cf. Strasberg v. Odyssey Group, Inc. (1996) 51 Cal.App.4th 906, 917.) Stainbacks mere status as former secretary does not result in a fiduciary relationship.
Nor is there any other factual basis for fraudulent concealment, such as a bailee concealing improper disposition of the owners property. If the original taking were pursuant to a lawful bailment but the bailee then retained or disposed of the property adversely to the owner, the late discovery rule would apply in a conversion action brought by the owner of the property. (Coy v. County of Los Angeles (1991) 235 Cal.App.3d 1077, 1087-1088; Niiya v. Goto (1960) 181 Cal.App.2d 682, 688-690.) The law recognizes two types of bailments (referred to as "deposits"). A voluntary bailment "is made by giving to another, with his consent, the possession of personal property to keep for the benefit of the former, or of a third party." (Civ. Code, § 1814.) An involuntary bailment can occur, in pertinent part, in "cases of fire, shipwreck, inundation, insurrection, riot, or like extraordinary emergencies" where property is "out of necessity" in the care of another person. (Civ. Code, § 1815.)
In the present case, there was no involuntary bailment created by necessity during any emergency situation. Wrights imprisonment was not the type of event that would warrant creation of an involuntary bailment. His imprisonment was an event for which he alone was responsible, and was an extended situation. Wrights imprisonment thus did not constitute the type of sudden or catastrophic "extraordinary emergen[cy]" (Civ. Code, § 1815, subd. (b)) envisioned by the statue defining an involuntary bailment.
Regarding the notion of a voluntary bailment, there was no "consent" by the purported bailee (Stainback) to a bailment, which is a statutory prerequisite for a voluntary bailment. (Civ. Code, § 1814.) The trial court in its statement of decision (in the context of an unsuccessful breach of contract claim) specifically found that Wright and Stainback "did not agree to the same thing and hence no contract was formed." As the court explained, both witnesses were "credible" in their testimony as to their own quite different understandings and expectations at the time of their one and only conversation regarding the piano. The court found that Wright believed he was asking Stainback to take and keep the piano, but only until he got out of prison. On the other hand, Stainback understood that she could keep the piano for herself, especially after Wright was sentenced to three consecutive life terms plus 106 years. We find it reasonable for Wright to bear the burden of establishing or clarifying the existence of a purported bailment with the intended bailee, and Wright failed to do so.
Because no voluntary bailment existed between Wright and Stainback, the situation was not one where the bailee kept for herself or sold for her benefit the property entrusted to her, and the bailment thus turned into a theft. Rather, since there was no meeting of the minds on the status of the piano at the outset, no voluntary bailment was created. And without a bailment between the parties, the late discovery rule for a conversion action in the bailment context does not apply.
Finally, we note that the three-year statute of limitations for conversion, section 338, subdivision (c), as presently worded, does provide for the delayed accrual of the cause of action, but only in certain limited circumstances inapplicable here. The statute provides: "The cause of action in the case of theft, as defined in Section 484 of the Penal Code, of any article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, his or her agent, or the law enforcement agency which originally investigated the theft."
As explained in Society of Cal. Pioneers v. Baker (1996) 43 Cal.App.4th 774, 783-784, the reference in section 338, subdivision (c) to a cause of action accruing at the time of discovery for the theft of certain types of items was originally enacted by an amendment, effective January 1, 1983, which applied the delayed discovery rule to any "art or artifact." The Legislature in 1989 again amended section 338, subdivision (c), adding language as quoted above, which specified additional types of items covered by the delayed discovery rule.
The present case, however, does not involve the limited statutory exception applying the delayed discovery rule for conversion to articles of "historical, interpretative, scientific, or artistic significance." Wrights Steinway piano may have been a valuable musical instrument, but there is no indication it fell within the statutory exception to the general rule that the cause of action accrues at the time of conversion. And Wright has not alleged such a statutory exception.
We acknowledge that some other jurisdictions have a demand rule for accrual of the cause of action, whereby the limitations period commences upon the owners demand for the return of the stolen property, without regard to the owners diligence in locating the property. (See Naftzger v. American Numismatic Society (1996) 42 Cal.App.4th 421, 434.) Such a rule "avoids the prospect of allowing the person in possession of the stolen property to acquire, in effect, stolen property by expiration of the statute of limitations." (Ibid.)
However, any change in the rule in California must be done by the Legislature, which has repeatedly addressed the statute of limitations but thus far adopted a discovery rule only as to certain specified types of property. Legislative silence in amending the statute only to make such a narrow change implies Legislative intent not to permit any broader application of the discovery rule. (See Cole v. Rush (1955) 45 Cal.2d 345, 355.) Therefore, except for statutorily specified types of property, the general rule is that absent fraudulent concealment an action for conversion accrues on the date of the conversion.
Accordingly, the trial court erred in applying a delayed discovery rule, and the cause of action for conversion is barred by the statute of limitations. It is thus unnecessary to address Wrights cross-appeal, which seeks pre-judgment interest, as judgment should not have been granted in his favor.
DISPOSITION
The judgment is reversed. Stainback is entitled to costs on appeal.
We concur: DOI TODD, J. and ASHMANN-GERST, J. --------------- Notes: Hereafter, unless otherwise indicated, all statutory references are to the Code of Civil Procedure.