Toluca Lake Property Owner’s Assn. v. Haberman

Filed 10/11/06 Toluca Lake Property Owner’s Assn. v. Haberman CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Laura A. Matz, Judge. Affirmed.

Law Offices of John R. Blanchard, John R. Blanchard for Defendant, Cross-complainant and Appellant.

Yoka & Smith, David T. McCann for Plaintiff, Cross-Defendants and Respondents.

In this appeal, appellant contends that the trial court abused its discretion in awarding respondent damages for unjust enrichment in finding that the statute of limitations periods had expired on appellant’s cross-claims for conversion and unjust enrichment. We affirm.

PROCEDURAL HISTORY

Respondent Toluca Lake Property Owner’s Association (POA) filed a complaint alleging that appellant Fern Haberman (1) breached a written agreement, (2) is indebted to POA for failing to pay property owner’s fees, and (3) received benefits of services provided by POA and was thus unjustly enriched.

Haberman filed a cross-complaint against POA and cross-defendants Sandy Edwards and Linda Soulek, who sit on POA’s board of directors. She alleged that POA and Edwards wrongfully converted property belonging to her, were negligent, breached an express and implied in fact oral contract, and were unjustly enriched through possession of her property. She further alleged that Soulek assaulted her. Finally, against all cross-defendants, she alleged intentional infliction of emotional distress and violation of California Business and Professional Code section 17200.

Edwards filed a demurrer to the cross complaint. The court sustained the demurrer on the violation of section 17200 claim without leave to amend, and sustained the demurrer on the intentional infliction of emotional distress claim with 20 days’ leave to amend. Soulek also filed a demurrer, which was sustained only with respect to the violation of the section 17200 claim. In addition, Edwards and Soulek filed motions to strike portions of Haberman’s cross-complaint. The court granted a motion to strike the portion of the cross-complaint that asserted an entitlement to punitive damages for acts of unfair competition. Haberman filed a first amended cross-complaint.

Next, the court granted Haberman’s ex parte motion to transfer her case from a limited to an unlimited jurisdiction court.

POA filed a motion for summary judgment or in the alternative for summary adjudication on Haberman’s cross-complaint of conversion. The record does not indicate how the court ruled on this motion.

The legal claims of both POA and Haberman were heard by a jury. The jury found that Haberman breached the contract, but also found that POA was not harmed by the breach and declined to award damages. They also found that the statute of limitations for Haberman’s claim of conversion had expired. In addition, the jury found that Soulek was not liable for assault or for intentional infliction of emotional distress. Next, the trial court awarded POA $21,000 on the equitable claim for unjust enrichment. Finally, finding that the statute of limitations period had expired, the court denied Haberman’s cross-claim of unjust enrichment against Edwards.

Haberman filed a timely appeal, claiming that the trial court abused its discretion in awarding damages to POA under unjust enrichment despite the jury’s finding that POA suffered no harm, and that the trial court abused its discretion in dismissing her claims of conversion and unjust enrichment on statute of limitations grounds. POA disputes those contentions and claims that the judgment for unjust enrichment from the property association services has been satisfied and therefore the appeal on that issue is moot. POA also contends that the statute of limitations period had indeed expired for Haberman’s claim of unjust enrichment.

FACTS

Fran Haberman purchased a home in the Toluca Lake area in 1964. Before closing escrow, she signed a maintenance agreement with the Toluca Lake Property Owner’s Association (POA). The purpose of POA is to provide for the upkeep of the community lake and the small park that surrounds the lake. All members of the association live near or around the lake and equally have access to the lake and the park. The agreement that Haberman signed required her to pay dues to the association that are used to pay the maintenance costs. The dues began at $2,000 annually and were later raised to $3,000. Haberman paid the dues every year through 1996, at which point she stopped, despite her continued residence in the community.

After moving to her Toluca Lake residence in 1964, Haberman began taking photographs of the area and the famous people who visited her home. She collected these photographs and preserved them at her home. She also received a number of historical photographs of the area from Andy Vargo, an original developer of the Toluca Lake community. She restored many of the photographs and added them to her collection. In the summer of 1993, Haberman brought her collection of photographs to a POA Board of Directors meeting where she presented her idea of creating a museum in the park where her photographs could be displayed. She left five cases, weighing approximately 240 pounds, of her photographs with the directors as they considered her proposal. Specifically, she left the photographs in the control of Edwards, a POA director. Two days later she called Howard Alston, President of POA, and asked for the return of her photographs. At that time, they were not returned to her. Approximately two years later, Haberman was told by a Linda Sheehan, a member of POA, that Edwards had her photographs under her bed at home. She approached Edwards at her home and requested the return of her photographs. Edwards only returned one or two photographs and a negative.^[1]

DISCUSSION

Haberman contends that the trial court abused its discretion in both (1) awarding damages for unjust enrichment and (2) finding the statute of limitations period had expired on Haberman’s cross-claims of conversion and unjust enrichment.

Under an abuse of discretion standard of review, the appellate court “examines the ruling of the trial court and asks whether it exceeds the bounds of reason or is arbitrary, whimsical or capricious.” (People v. Jackson (2005), 128 Cal. App. 4th 1009, 1018.) An abundant deference is given to the trial court’s ruling. (Ibid.)

We need not reach the issue of abuse of discretion in awarding unjust enrichment damages to POA because that issue is rendered moot by Haberman’s satisfaction of the judgment. We also conclude that the trial court did not abuse its discretion in finding that the statute of limitations period had expired on Haberman’s cross-claims of conversion and unjust enrichment. We will therefore affirm.

I. Haberman’s appeal on the judgment is moot because the judgment has been satisfied.

Haberman contends that the trial court abused its discretion in awarding damages to POA under the theory of unjust enrichment when the jury had already determined that POA was not harmed by Haberman’s breach of contract. However, Haberman has already satisfied the judgment of the trial court. Once a party has voluntarily satisfied the terms of a judgment, any possible appeal on that judgment is waived. (A.L.L. Roofing & Bldg. Materials Corp. v. Community Bank (1986) 182 Cal. App. 3d 356, 359.) Where satisfaction is compelled by threat of forfeiture or seizure of property under execution, there is no waiver even if the judgment is paid. (9 Witkin Cal. Procedure (4th ed. 2006) Appeal, § 211; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) 2:325, p. 2-148.)

Nothing in the record suggests that Haberman was compelled to satisfy the judgment. Therefore, since it has been satisfied, the issue raised by Haberman concerning the judgment is moot.^[2]

II. The trial court did not abuse its discretion in finding that the three-year limitations period had expired on Haberman’s cross-claims of conversion and unjust enrichment.

Haberman also contends that the trial court abused its discretion in finding that the three-year statute of limitations period had expired before Haberman brought her cross-claims of conversion and unjust enrichment against POA. The period of limitations for conversion is three years (Code Civ. Proc., § 338. subd. (c)), and both parties stipulated that the period is the same for Haberman’s claim of unjust enrichment. However, Haberman relies on an exception to the statute found in Code of Civil Procedure section 338, subdivision (c): “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.”

The “discovery rule exception“ does not apply to Haberman’s cross-claim. This exception to the statute of limitations only applies in cases where the aggrieved party belatedly learns of the whereabouts of the converted or stolen property, and has brought a cause of action against those in possession. (See Naftzger v. American Numismatic Society (1996) 42 Cal. App. 4th 421.) The limitations period commences when the plaintiff actually discovers the identity of the person in possession of the property. (Id. at p. 428, fn. 4.) This exception was created to protect “those who are ignorant of their cause of action through no fault of their own. It permits delayed accrual until a plaintiff knew or should have known of the wrongful conduct at issue.” (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832.)

In 1995, Haberman received only a small portion of her photographs from Edwards. No new information about the whereabouts of her remaining photographs has been revealed to her since 1995. At this time, she does not know who is in possession of these photographs. Thus, there exists no cause of action to which the “discovery rule exception” can be applied. If Haberman at some point in the future discovers the whereabouts of her photographs, it is possible that the discovery rule exception might apply against those unknown persons or entities. Haberman knew or should have known of the possible claim of conversion or unjust enrichment against POA and Edwards when in 1993 and 1995 she requested that the photographs be returned to her, and they were not.

The period of limitations on a claim of conversion begins to accrue when a possessor “acts in a manner inconsistent with the owner’s interests.” (Naftzger v. American Numismatic Society, supra, 42 Cal. App. 4th at pp. 428-429.) Both parties stipulated that the limitations period is the same for unjust enrichment, thus the same rule applies. The limitations period for both claims began to accrue when Haberman demanded her photographs from POA in 1993 and they were not returned, and when she demanded them from Edwards in 1995 and they were not returned in full. Therefore, the limitations period did expire before the claims were brought, and the trial court did not abuse its discretion in dismissing these claims on that basis.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

ASHMANN-GERST, J.

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^[1] Haberman’s complaint included a cause of action for assault relating to an incident involving Soulek, but the jury’s verdict rejected the claim. On appeal, Haberman raises no issue concerning this cause of action.

^[2] A failure to rebut arguments may be treated as a waiver or a concession. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545; Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 803. fn 4.) Here, POA raised in its brief the issue of satisfaction of judgment. Haberman did not file a reply brief and thus did not rebut the contention that the judgment had been rendered moot. We therefore consider the issue waived.