Filed 7/6/17 C.C. Technology v. BBCN Bank CA4/3









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


C.C. TECHNOLOGY, L.P.,

Plaintiff and Appellant,

v.

BBCN BANK et al.,

Defendants and Respondents.


G053048

(Super. Ct. No. 30-2014-00715264)

ORDER MODIFYING OPINION;
NO CHANGE IN JUDGMENT

This court hereby orders that the opinion filed herein on June 29, 2017, be modified as follows:
1. On page 10, second sentence of second full paragraph, “CCT” is deleted and replaced with “Brookhurst” so the sentence reads:
1. “We agree, regardless of any other expectations, that the course of events here was sufficient to place CCT on notice of “favoritism” or some other kind of insider relationship between Center and Brookhurst.”
2. On page 10, fourth sentence of second full paragraph, “Brookhurt’s” is deleted and replaced with “Brookhurst’s” so the sentence reads:
“Indeed, a very minimal inquiry into publicly available, recorded documents would have revealed that Center had largely financed Brookhurst’s acquisition of the property, strongly suggesting some kind of close relationship between those two entities.”
This modification does not change the judgment.



MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



FYBEL, J.

Filed 6/29/17 C.C. Technology v. BBCN Bank CA4/3 (unmodified version)






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


C.C. TECHNOLOGY, L.P.,

Plaintiff and Appellant,

v.

BBCN BANK et al.,

Defendants and Respondents.


G053048

(Super. Ct. No. 30-2014-00715264)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed.
Palmieri, Tyler, Wiener, Wilhelm & Waldron, Elise M. Kern, Erica M. Sorosky and Erin K. Oyama for Plaintiff and Appellant.
The Song Law Group, Joon W. Song and Steven Y. Han for Defendants and Respondents.
* * *
This is an appeal following the trial court’s decision to sustain a demurrer to plaintiff C.C. Technology, L.P.’s (CCT) second amended complaint for national origin discrimination under the Unruh Civil Rights Act (Civ. Code, § 51.5; the Unruh Act) and unfair business practices (Bus. & Prof. Code, § 17200; the UCL) against defendants BBCN Bank (BBCN) and related entities. In sum, CCT, which is an entity owned by Vietnamese individuals or persons of Vietnamese origin, alleged that BBCN, a Korean-owned entity, discriminated based on national origin. The court ultimately sustained BBCN’s demurrer on the grounds that the statute of limitations had expired. As we shall explain, we reject CCT’s various arguments as to why its claims did not accrue or were not discovered until much later, and agree with the trial court that the statute of limitations bars this action.

I
FACTS
Pertinent Facts
The second amended complaint alleged that in December 2003, CCT purchased certain real property in Garden Grove (the property), with the assistance of a purchase money loan from Center Bank (Center), BBCN’s predecessor in interest. CCT made payments through January 2010, but due to the economy, they alleged, their rental income was substantially reduced. They sought a loan modification or other relief from Center. The second amended complaint stated that at first, Center offered a short-term loan modification in exchange for additional collateral, which CCT provided. CCT then sought a permanent loan modification.
During these negotiations in January 2010, CCT alleged, Center informed CCT that it had “sold” the note to a third party and could no longer assist CCT. CCT was contacted by an entity known as 12151 Brookhurst LLC (Brookhurst), purportedly the new lender, which immediately initiated an action to foreclose the property. CCT alleged it wished to negotiate further, but Brookhurst demanded CCT execute a deed transferring title in the property to Brookhurst. The second amended complaint does not allege what the outcome of that demand was, but in a later document, CCT claimed it was “forced to give up the property to the third party buyer.”
In the first amended complaint, but not the second, CCT had also alleged that Brookhurst and one of its tenants had conspired with insiders and employees of Center to acquire the property by “unlawful means.” CCT alleged that there had, in fact, been no sale of the note to Brookhurst, but that Center had loaned Brookhurst most of the purchase price for the note. Brookhurst, allegedly, had “paid little,” and the sale of the note was financed by a new note issued by Center. Again, these allegations were omitted from the second amended complaint.
The allegations of the second amended complaint jump from Brookhurst’s demand and pending foreclosure action in January 2010 to February 13, 2013, more than three years later. CCT alleged that BBCN, which had then succeeded Center, executed a permanent loan modification for Brookhurst on the property. The complaint alleged that BBCN’s decision to do so was based on unlawful discrimination: “BBCN . . . discriminated against the principals of [CCT] who are Vietnamese and preferred Brookhurst and its principals who are Korean based solely upon their national origin. This practice of unlawful discrimination favoring customers of Korean heritage over customers of Vietnamese heritage was a continuous unlawful practice . . . .”
The second amended complaint also alleged that CCT was unaware and could not have discovered the unlawful discrimination until the permanent loan modification was granted to Brookhurst in February 2013. In its Unruh Act claim, CCT sought compensatory damages, treble damages according to statute, and injunctive relief. In its unfair competition claim, CCT sought compensatory damages, treble damages according to statute, disgorgement of all profits resulting from the alleged unlawful practice, and injunctive relief. CCT also sought attorney fees and costs.

Procedural History
We provide the procedural history only insofar as it is relevant to the issues on appeal. CCT’s original complaint was filed on April 8, 2014, alleging national origin discrimination and unfair business practices. In response to a demurrer filed by BBCN, CCT filed a first amended complaint. BBCN again demurred, arguing, among other things, that the statute of limitations had expired.
The trial court sustained the demurrer to the first amended complaint. In its order, the court stated: “The Collateral Assignment and Pledge of Note, Deed of Trust and Loan Documents recorded January 11, 2010, appears sufficient to have placed Plaintiff on notice of injury for purposes of commencing the statute of limitations.” These were the documents that, among other things, assigned CCT’s note to Brookhurst. BBCN’s request for judicial notice of these documents was granted by the court. The court permitted 10 days’ leave to amend, warning CCT it had “one opportunity to amend . . . to allege facts establishing delayed discovery.”
In May 2015, CCT filed the second amended complaint, now the operative pleading in this matter. The second amended complaint alleged the facts set forth above, and pleaded the same two causes of action: national origin discrimination under the Unruh Act and unfair business practices under the UCL.
BBCN once again demurred, arguing all claims were barred by the statute of limitations and the second amended complaint failed to state facts sufficient to set forth a cause of action. They argued that CCT had failed, in light of the court’s ruling on the demurrer to the first amended complaint, to set forth facts establishing delayed discovery. They also argued the second amended complaint failed to state a claim because, in short, BBCN had never discriminated against CCT by denying a loan modification or other relief. Instead, it sold the loan. They argued it was Brookhurst, not BBCN, which denied CCT the loan modification it sought.
In its opposition, CCT stated it had deleted certain facts from the second amended complaint which had, in previous complaints, “appear[ed] to be the subject of confusion for the court.” CCT argued it was “denied” a permanent loan modification, and stated the basis of its claim rested on the fate of the permanent loan modification. CCT claimed this could only have been discovered once Brookhurst’s loan modification was recorded in February 2013. CCT went on to argue: “While the Korean customer’s method of acquisition of the property back in 2010 does tend to show favoritism by the former Center Bank towards its Korean customer, Plaintiff could not and would not expect the same treatment by Defendants (as it most likely involves violations of banking regulations and criminal statutes). This conduct leading to the acquisition of the property is not the basis of Plaintiff’s claims . . . .”
With regard to the statute of limitations, CCT again argued it could not have been aware of the purported discrimination before the permanent loan modification for Brookhurst was recorded in February 2013. Thus, they argued the discovery rule delayed the statute of limitations.
In its reply, BBCN contended that CCT’s admission that Brookhurst’s method of acquisition of the property demonstrated favoritism, and CCT had failed to state why it could not expect the same treatment. BBCN claimed CCT was immediately aware of the favorable treatment of Brookhurst in 2010. It also pointed out that CCT had omitted factual allegations regarding the transfer of the note in its first amended complaint.
The court heard oral argument and subsequently ruled in BBCN’s favor, stating the second amended complaint “fails to allege any facts demonstrating when Plaintiff became aware of the Collateral Assignment and Pledge of Note, Deed of Trust and Loan Documents, and what investigation Plaintiff undertook thereafter.” Accordingly, the court found the statute of limitations barred CCT’s claims. Judgment was entered thereafter. CCT now appeals.

II
DISCUSSION
Standard of Review
In reviewing the dismissal of a complaint on a demurrer, we determine not only “whether the [complaint] alleges facts sufficient to state a cause of action” (Davis v. Fresno Unified School Dist. (2015) 237 Cal.App.4th 261, 274 (Davis)), but also whether it “‘shows on its face that it is barred by a statute of limitations.’” (Barker v. Garza (2013) 218 Cal.App.4th 1449, 1454); see Code Civ. Proc., § 430.10.) In making this assessment, “we assume the truth of all well-pleaded factual allegations” in the complaint (Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 101), as well as matters subject to judicial notice (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751). Our review is de novo. (Davis, at p. 274.) CCT’s claims under the Unruh Act have either a two or three-year statute of limitations. (Semler v. General Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1386-1387.) The statute of limitations for a claim under the UCL is four years. (Bus. & Prof. Code, § 17208.)
When a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; see Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010; Canton Poultry & Deli, Inc. v. Stockwell, Harris, Widom, & Woolverton et al. (2003) 109 Cal.App.4th 1219, 1226.)

Accrual of Cause of Action
CCT’s first argument is that the discrimination did not occur until February 2013, presumably when the loan modification granted to Brookhurst was recorded. CCT argues it was discriminated against at that time because BBCN did not offer it the same loan modification it offered to Korean customers.
CCT offers no authority for the proposition that a cause of action under the Unruh Act accrues when a second party is treated more favorably, and we find none. To prove a claim under the Unruh Act, a plaintiff must prove that a defendant discriminated against them, that their status, in this case national origin, was a motivating reason for the discriminatory conduct, and that plaintiff was harmed. (See, e.g., CACI No. 3061.)
A claim accrues when all elements of the cause of action are complete. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox).) Thus, a cause of action for discrimination accrues when the discrimination motivated by the plaintiff’s status occurs; not when a party who falls into a different class is treated differently. That is simply not part of a cause of action under the Unruh Act. If it were, it would lead to the absurd result that claims for an act of discrimination did not accrue until someone else is treated more favorably. If CCT was harmed at all, it was harmed when BBCN denied its request for a loan modification, not when Brookhurst’s request was approved. Thus, we reject CCT’s accrual argument.
Accordingly, we find the cause of action accrued on or about January 2010, at the time BBCN “fail[ed] to offer” the permanent loan modification to CCT. As this was the same point at which BBCN allegedly committed the unlawful business practice of discrimination, the same accrual date applies to the UCL claim.

The Discovery Rule
If a demurrer demonstrates that a pleading is untimely on its face, it becomes the plaintiff’s burden “even at the pleading stage” to establish an exception to the limitations period. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197.) As noted above, any claim CCT has accrued in January 2010, and accordingly, the longest statute of limitation involved in this case expired four years later, in January 2014. (Bus. & Prof. Code, § 17208.) This case was filed in April 2014. Thus, unless CCT can establish an exception applies, the statute of limitations on its causes of action expired before it filed the original complaint.
“[T]he ‘discovery rule’ . . . postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Fox, supra, 35 Cal.4th at pp. 806-807.) “A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ [Citations.] Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.” (Id. at p. 807.) Courts do not approach the use of the “elements” of a cause of action technically; instead “we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.” (Ibid.) But “[t]he discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have ‘“‘information of circumstances to put [them] on inquiry,’”’ or . . . ‘“‘the opportunity to obtain knowledge from sources open . . . .’”’” (Id. at pp. 807-808, fn. omitted.)
The discovery rule “requires a plaintiff to plead facts showing an excuse for late discovery of the facts underlying his cause of action. [The plaintiff] must show ‘that he [or she] was not at fault for failing to discover it or had no actual or presumptive knowledge of facts sufficient to put him [or her] on inquiry. [Citations.]’ [Citation.]” (Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th 1236, 1247.) The plaintiff must also show diligence beyond mere conclusory allegations. (Grisham v. Philip Morris, U.S.A., Inc. (2007) 40 Cal.4th 623, 638.)
Here, the only language that comes close in the second amended complaint states that CCT “was unaware and could not with reasonable diligence have discovered the unlawful discrimination until the permanent loan modification, an accommodation granted to the Korean customer and denied [CCT] based upon the aforementioned unlawful discrimination, was recorded on February 13, 2013.” This fails the requirement to plead facts beyond conclusory allegations.
Further, even if the complaint had met the pleading requirements, the facts available do not support delayed discovery. CCT argues that BBCN improperly relies on the documents recorded in January 2010. These documents, among other things, purported to transfer BBCN’s note on the property to Brookhurst and revealed the loan agreement between Brookhurst and BBCN. BBCN requested, and the court properly granted, judicial notice of these documents to support the existence of a duty to inquire. BBCN was not required to establish CCT was aware of the documents or that the contents of documents were true, or even that the documents were authentic. As CCT reminds us, such findings would be improper at the pleading stage.
What is pertinent here is that the documents were generally consistent with the facts CCT claimed it knew at the time. Those facts include that Center, having previously granted CCT a temporary loan modification, suddenly stopped negotiating with CCT and informed it the note had been “sold.” Brookhurst, the note’s alleged buyer, immediately initiated foreclosure proceedings rather than continuing to negotiate, “demanding” that CCT execute a deed transferring the property. Had CCT investigated at that point, they would have discovered that BBCN was the source of the loan. Thus, neither BBCN nor the trial court relied upon the documents for their authenticity or the truth of their contents; only that taken together with the facts CCT admits it knew, the documents gave CCT further cause to inquire.
In its opposition, CCT admitted that “the Korean customer’s method of acquisition of the property back in 2010 does tend to show favoritism by the former Center Bank towards its Korean customer . . . .” We agree, regardless of any other expectations, that the course of events here was sufficient to place CCT on notice of “favoritism” or some other kind of insider relationship between Center and CCT. This triggered CCT’s duty to investigate, and commenced the accrual of any cause of action it might have. Indeed, a very minimal inquiry into publicly available, recorded documents would have revealed that Center had largely financed Brookhurt’s acquisition of the property, strongly suggesting some kind of close relationship between those two entities. Further information was available to CCT during the foreclosure proceeding Brookhurst filed. Accordingly, we conclude CCT has failed to demonstrate the discovery rule applies here.


Duty of Inquiry
In its reply brief, CCT argues for the first time in this case that it had no duty of inquiry because of its “relationship” with BBCN. First, we note this is improper. CCT did not make this argument in its opposition to the demurrer it filed below, nor did it offer this contention in its opening brief. If a point is not raised in a party’s opening brief, we need not consider it. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 108.) To do otherwise is unfair to the other party, who has no opportunity to brief the issue.
Even if we were to consider this argument, we would reject it. CCT begins by quoting language regarding the duty of inquiry in a fiduciary relationship, but the second amended complaint pleads no such relationship. The page in the complaint they cite for this proposition simply states that BBCN was CCT’s lender, nothing more.
Nor, absent special circumstances not pleaded here, does a fiduciary relationship exist between a borrower and a bank. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 476-477, overruled on other grounds in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1179.) The cases CCT cites do not say otherwise. Rather, CCT attempts to conflate the issue of a “relationship” between the parties and the general duty to inquire. But there is no fiduciary relationship alleged here, and thus, even if this issue were properly raised, this argument does not help CCT.

Leave to Amend
Finally, CCT argues leave to amend should have been granted. In its opposition in the trial court, CCT did not identify any proposed manner in which it might amend the complaint to address any deficiencies, it simply asked for further leave to file a fourth complaint.
On appeal, CCT argues: “Here, the trial court itself acknowledged in its ruling that there was at least a possibility that the [second amended complaint] could be amended so as to properly plead delayed discovery for purposes of the demurrer.” We see no such indication in the court’s order sustaining the demurrer to the second amended complaint. CCT claims because the court stated the second amended complaint “fails to allege any facts demonstrating when Plaintiff became aware of the Collateral Assignment and Pledge of Note, Deed of Trust and Loan Documents and what investigation Plaintiff undertook thereafter . . .” the court knew the complaint could have been successfully amended and should have given it the chance to do so.
But this is essentially the same advisement the court gave CCT when it sustained the demurrer to the first amended complaint: “The Collateral Assignment and Pledge of Note, Deed of Trust and Loan Documents recorded January 11, 2010, appears sufficient to have placed Plaintiff on notice of injury for purposes of commencing the statute of limitations.” At the time, CCT was specifically warned it had “one opportunity” to amend the complaint to allege facts establishing delayed discovery. After another round of pleading and demurrer, CCT was no closer to successfully pleading delayed discovery, and accordingly, it was not an abuse of discretion to decline a further opportunity to amend.

III
DISPOSITION
The judgment is affirmed. BBCN is entitled to its costs on appeal.



MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



FYBEL, J.