Filed 12/12/17 Kim v. Kim CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


DEAN KIM,
Plaintiff and Appellant,
v.
YOUNG OAK KIM,
Defendant and Respondent.

A146616

(Alameda County
Super. Ct. No. RG14752461)


I.
INTRODUCTION
Appellant Dean Kim (Dean) appeals from a defense judgment following an order granting summary judgment in favor of respondent Young Oak Kim (Young), based on a determination that Dean’s complaint was barred by the applicable statutes of limitations. Dean contends: (1) there are triable issues of fact as to whether his complaint was timely filed; (2) the trial court erroneously denied his request to continue the hearing on Young’s summary judgment motion pursuant to section 437c, subdivision (h) of the Code of Civil Procedure ; and (3) the trial court erroneously denied his section 1008 motion for reconsideration of the summary judgment ruling.
Initially we find that Dean’s failure to comply with at least two fundamental rules of appellate procedure set forth in the California Rules of Court establish separate, independent bases for dismissal of this appeal. First, Dean repeatedly violated rule 8.204(a)(1)(C), which requires that matters stated in appellate briefs are to be supported by a citation to the volume and page number in the appellate record where the matter can be found. Second, the one-volume Appellant’s Appendix submitted by Dean does not comply with rule 8.124(b)(1)(B), in that it does not include all the documents needed for proper consideration of the issues and items Dean reasonably should assume Young will rely on, including her motion for summary judgment. These are not mere technical requirements, but important rules of appellate procedure designed to alleviate the burden on the court by requiring litigants to present their cause systematically, so that the court “may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.” (Landa v. Steinberg (1932) 126 Cal.App. 324, 325.) We note that Dean appears before us in propria persona, which may explain the deficiencies in his briefs but in no way excuses them. “ ‘ “[T]he in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation]. [Citations.]” ’ [Citation.]” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.)
While we affirm the lower court’s judgment because of the foregoing procedural deficiencies, we have also examined Dean’s claims of error, and conclude that the judgment should also be affirmed on the merits.
II.
PROCEDURAL BACKGROUND
Dean and Young were married in 1980, and divorced in 2007. On December 23, 2014, Dean filed a complaint against his ex-wife Young for breach of contract and fraud. He alleged that Young breached a contract between them to share the profits from the sale of a residence on Dubal Court in Fremont (Fremont property), which Young sold in October 2003 for a total of $698,800. This sale allegedly yielded a profit of $160,000, of which half was owed by Young to Dean. Dean further alleged that he did not discover the Fremont property had been sold until October 20, 2014, because of Young’s concealment and, therefore, the complaint was timely filed.
In an attachment to the complaint, Dean alleged further that in 2001, because of “reasons involving the parties’ credit,” Dean transferred “the technical ownership” of the Fremont property from joint tenancy/community property to Young as her sole and separate property. In agreeing to this transfer, the parties made an oral contract that if the home was sold at a later time, Dean would receive half of the profits.
Young filed an answer to the complaint, admitting some allegations but denying there was any contract (oral or written) between the parties relating to the Fremont property, and raising affirmative defenses, including the statute of frauds, the statute of limitations, waiver, and res judicata.
Subsequently, Young filed a motion for summary judgment on the ground that the December 2014 complaint was filed too long after the October 2003 sale of the Fremont property, in violation of the statutes of limitations applicable to Dean’s claims (two years for oral contract violations, and three years for fraud). Young argued, inter alia, that there was no factual dispute about Dean being aware of the sale of the Fremont property when it occurred in 2003. In addition, Young presented evidence that Dean also knew the financial terms of the sale. However, because Dean disputed having knowledge of those terms, Young alternatively argued that Dean was on “inquiry notice,” based on all of the information he had about the sale, and therefore, both the two and three-year statutes of limitations expired long before Dean filed his action in December 2014.
In his opposition to the summary judgment motion, Dean argued there were triable issues of fact as to when he discovered Young’s fraud and breach of contract. He principally relied on his own declaration, in which he denied that he had specific information as to the terms of the sale of the Fremont property before 2014. Dean included in his opposition a request that the summary judgment hearing be continued 60 to 90 days because Young had not yet responded to discovery, including requests for production of documents and requests for admission, that Dean propounded after the summary judgment motion was filed.
Following an August 28, 2015 hearing, the trial court granted Young summary judgment. In its order, the court erroneously noted that a claim for breach of contract is governed by the four-year statute of limitations set forth in section 339, subdivision (1), and that the accrual of that cause of action commences upon discovery of the breach. The court found that uncontroverted evidence presented in connection with the motion established that Dean was aware that the Fremont property had been sold in 2006, but he may not have learned of the amount of the sale until 2014. As the court put it: “Based on this evidence, it is clear that [Dean’s] complaint is based on delayed discovery of the sale price, not delayed discovery of the sale.” The court also found that this evidence established that as of 2006, Dean was put on “inquiry notice” to determine the sale price and whether he believed he was entitled to any portion of the profit from that sale. The court noted that the terms of the sale were in public records, and because Dean took no steps in the 11 years after the sale to determine whether Young had breached the contract alleged in the complaint, his claim was time-barred.
Turning to the fraud cause of action, the court found that the three-year limitations period contained in section 338, subdivision (d) applied. Once again, the court concluded that Dean was put on inquiry notice that a sale of the Fremont property had taken place no later than 2006, and his failure to look into the terms of the sale based on publicly available documents for eight years made his fraud claim time-barred.
In the same order, the court denied Dean’s request for a continuance to obtain discovery responses, concluding that there was no showing how the anticipated discovery responses would create a triable issue of material fact.
Dean then filed a motion for reconsideration of the order granting summary judgment. As grounds for this relief, Dean argued: (1) the trial court abused its discretion in denying his motion to continue the summary judgment hearing; (2) after the order was filed, Dean discovered that the Fremont property actually sold for $750,000, not $699,000; and (3) Allen Chu, the believed purchaser of the Fremont property, executed a declaration in which he stated that he did not know or meet either Dean or Young until he was served with a subpoena on December 23, 2014. Dean contended this declaration was evidence that Young may have fraudulently used Chu’s name in the transaction.
In a supplemental declaration filed in support of his motion, Dean acknowledged he had admitted in open court that a 2006 declaration he signed during his divorce proceeding was proof that he knew—as of that date—that the Fremont property had been sold for $699,000. However, Dean claimed that the 2006 declaration had been prepared by his attorney and he was actually “totally ignorant on such matter” until after Young filed her motion for summary judgment in the present case.
In his supplemental declaration, Dean also acknowledged that in 2003 he was served by an attorney purportedly representing Mr. Chu, the new owner, with a three-day notice to quit due to the sale of the Fremont property and to surrender possession to “the named purchaser’s representative, Cindy Liu at 5556 Roundtree Terrace” in Fremont. However, Dean declared, Cindy Liu never lived at that address, although Young did live there with her family while she was still married to Dean. According to Dean, it was “too obvious” from this information that Young had actually sold the property for more than she had previously admitted.
Young opposed the motion for reconsideration by filing a declaration in which she explained that the matters raised in Dean’s motion either were known to him years earlier, or were irrelevant to the causes of action in the complaint, which were the subject of the motion for summary judgment. Young also pointed out that Dean failed to explain how this “new” evidence was not discoverable by him as of the time he filed his opposition to the summary judgment motion.
As is discussed in greater detail below, the motion to reconsider was heard on October 16, 2015, after which the trial court issued an order denying it.
III.
DISCUSSION
A. The Trial Court Did Not Err in Granting Summary Judgment
“We review a summary judgment ruling de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. [Citation.] ‘In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment.’ [Citation.]” (Bjork v. State Farm Fire & Casualty Co. (2007) 157 Cal.App.4th 1, 5 6.)
“ ‘A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.]’ ” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
On appeal, Dean insists, as he did below, that there is a triable issue of material fact regarding the commencement of the limitations period(s) governing his claims against Young because he presented evidence that he did not learn the sale price of the Fremont property until 2014. While there may be some evidence that he did not know the sale price until 2014, Dean ignores the legal principle of “inquiry notice,” which modifies the delayed discovery rule. Inquiry notice was relied on by the court in finding that Dean was derelict in not discovering the sale amount after 2006 when he admittedly knew that the Fremont property had been sold.
The principle of inquiry notice in not new; it has been used to adjudicate the issue of when a statutes of limitations accrues for more than a century. As the court stated in Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 566: “Our courts have repeatedly affirmed that mere ignorance, not induced by fraud, of the existence of the facts constituting a cause of action on the part of a plaintiff does not prevent the running of the statute of limitations [citations]; and that ‘mere ignorance of the facts, . . . without some valid excuse for ignorance, was of no consequence.’ (Dennis v. Bint[ (1898)] 122 Cal. 39, 44 [ ] [citing authority].)” (See also Bank of America v. Williams (1948) 89 Cal.App.2d 21, 25.)
Because “[t]he provision tolling operation of the statute until discovery of the fraud has long been treated as an exception,” our Supreme Court “has held that if an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of his complaint. [Citations.]” (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437.) Such a “plaintiff must affirmatively excuse his failure to discover the fraud within three years after it took place, by establishing facts showing that he was not negligent in failing to make the discovery sooner and that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry. [Citations.]” (Ibid.)
Much more recently our Supreme Court has affirmed the principle of inquiry notice as an exception to the discovery rule of accrual: “An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.]” (Fox v. Ethicon Endo–Surgery, Inc. (2005) 35 Cal.4th 797, 807.) “The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.” (Ibid.) A plaintiff relying on the discovery rule must plead “ ‘(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation.]” (Id. at p. 808, italics omitted.) Plaintiffs have an obligation to plead facts demonstrating reasonable diligence. (Ibid.)
These and other authorities support the trial court’s conclusion that the delayed discovery rule did not suspend the accrual of Dean’s breach of contract or fraud cause of action, and that these claims were barred by the pertinent statutes of limitations. (§§ 338 339.) Undisputed evidence established that, at the latest, Dean was put on notice in 2006 during the couple’s marriage dissolution proceedings that the Fremont property had been sold in 2003. Despite this knowledge and his belief that he was entitled to half of the net proceeds, Dean admits he did nothing until 2014, when he went to the Alameda County Tax Collector’s office to find out how much Young received from the sale of the Fremont property. Thus, we affirm the grant of summary judgment in favor of Young.
B. The Trial Court Did Not Err in Denying Dean’s Motion for a Continuance
The trial court denied Dean’s request to continue the summary judgment hearing for the following reasons: “[Dean] argues that he should be granted a continuance because to date [Young] has not responded to [Dean]’s request for production of documents and requests for admissions. The court cannot conceive of how these discovery responses would create a triable issue of material fact where the evidence, including[Dean]’s own admissions and statements, shows that [Dean] was on inquiry notice regarding the sale price or wrongdoing associated with the 2003 sale of the Property no later than August 2006.”
On appeal, Dean contends he was entitled to a continuance pursuant to section 437c, subdivision (h), which provides: “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.”
As this division has explained, under this section “ ‘[w]hen a party makes a good faith showing by affidavit demonstrating that a continuance is necessary to obtain essential facts to oppose a motion for summary judgment, the trial court must grant the continuance request. [Citation.] “Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under [Code of Civil Procedure] section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court’s denial of appellant’s request for a continuance for abuse of discretion.” ’ [Citation.]” (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532.)
“To make the requisite good faith showing, an opposing party’s declaration must show (1) the facts to be obtained are essential to opposing the motion, (2) there is reason to believe such facts may exist, and (3) the reasons why additional time is needed to obtain these facts. [Citation.]” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643 (Chavez).)
“Where a plaintiff cannot make the showing required under section 437c, subdivision (h), a plaintiff may seek a continuance under the ordinary discretionary standard applied to requests for a continuance. [Citation.] This requires a showing of good cause. [Citation.] ‘[I]n deciding whether to continue a summary judgment to permit additional discovery courts consider various factors, including (1) how long the case has been pending; (2) how long the requesting party had to oppose the motion; (3) whether the continuance motion could have been made earlier; (4) the proximity of the trial date or the 30-day discovery cutoff before trial; (5) any prior continuances for the same reason; and (6) the question whether the evidence sought is truly essential to the motion.’ [Citation].” (Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 765.)
In the present case, Dean filed a declaration in support of his opposition to the summary judgment motion in which he stated it was “clear” that Young’s responses to his outstanding discovery requests were “likely to provide evidence of significant material triable issues of fact.” On its face, this conclusory declaration did not constitute a good faith showing that a continuance of the hearing was necessary.
In this court, Dean contends he was entitled to a continuance pending receipt of Young’s discovery responses because Young would have been forced to admit the following facts: Young and Dean had a contract to share the sale proceeds of the Fremont property; Young concealed the date of sale and price from Dean; and Young never showed Dean the contract for sale. Also, Dean maintains that the documents he requested related to the sale would support his claim that Young concealed the details of the transaction from him.
This argument does not address the reason that the motion for a continuance was denied. The summary judgment motion did not turn on whether the parties had entered into a contract to share the sale proceeds, or whether Young concealed the terms of the sale from Dean. Instead, the issue was whether Dean’s complaint was timely, notwithstanding the fact that it was filed outside the statute of limitations periods applicable to his two pleaded causes of action, because of Dean’s allegedly late discovery of the terms of the sale. As the trial court found, the discovery responses Dean expected would not have altered the fact that Dean admitted that by 2006 he knew the Fremont property had been sold, and that knowledge put him on inquiry notice.
Thus, Dean has failed to demonstrate that a continuance was necessary to obtain essential facts to oppose Young’s summary judgment motion. We discern no error or abuse of discretion in the trial court’s ruling.
C. The Trial Court Did Not Err in Denying Dean’s Motion for Reconsideration
Finally, Dean asserts that the trial court erroneously denied his motion to reconsider the summary judgment ruling pursuant to section 1008.
“Section 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. [Citation.] A trial court's ruling on a motion for reconsideration is reviewed under the abuse of discretion standard. [Citation.]” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
In Dean’s motion for reconsideration, he characterized the following information as newly discovered facts: (1) outstanding discovery responses that Young had yet to provide; (2) the fact that the Fremont property sold for $750,000 rather than $699,000; (3) evidence suggesting that Young used Allen Chu’s name without his knowledge when the property was sold in 2003; and (4) the fact that Dean’s 2006 declaration confirming his knowledge of the sale of the Fremont property had been written by Dean’s attorney and that Dean was ignorant of its content.
None of these matters constituted new or different facts. As we have already explained, the discovery responses Dean hoped to elicit were not relevant to the determinative issue at summary judgment, i.e., whether Dean was on inquiry notice to discover the terms of the sale after 2006 when he definitively knew that the sale had occurred. Furthermore, as to (2) and (3) above, we agree with the trial court’s observation that Dean failed to explain why he was unable to present these facts at the hearing on the summary judgment motion. Lastly, as to the declaration prepared by Dean’s divorce attorney, this was information known to Dean at the time the motion for summary judgment was pending and heard, and it too did not rise to the level of new evidence meriting reconsideration of that earlier motion.
We find no abuse of discretion in denying Dean’s motion for reconsideration. The lower court properly applied the correct legal standard to decide this motion, and the conclusions reached were logical, reasonable, and supported by the record.
IV.
DISPOSITION
The order granting Young’s motion for summary judgment and the resultant judgment are affirmed. Young is to recover her costs on appeal.







_________________________
RUVOLO, P. J.


We concur:


_________________________
KENNEDY, J.*


_________________________
RIVERA, J.




















*Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.