Opinion
A130928
10-12-2011
GEOFFREY SAUVAGEAU, Plaintiff and Appellant, v. CAZADERO PERFORMING ARTS CAMP, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG09474359)
I. INTRODUCTION
Appellant, a former employee of the respondent, appeals from a judgment of dismissal entered by the superior court after it had sustained, without leave to amend, respondent's demurrer to his second amended complaint (SAC), a complaint alleging wrongful failure to pay him for overtime work. He contends that, for several reasons, the trial court erred in finding his claims to be time-barred. We disagree and hence affirm the judgment of dismissal.
II. FACTUAL AND PROCEDURAL BACKGROUND
The following is a summary of the allegations of appellant's SAC, filed on July 23, 2010, and some of the exhibits attached thereto.
Appellant was employed at respondent's Sonoma County "summer music camp" from April 16, 2001, until he was terminated on December 8, 2008. He was specifically employed as a "Site Manager" for the critical period involved in this litigation, i.e., the periods from April 1 to September 30 in the years 2001, 2002, and 2003. During the other months of those years, his title was changed to "Caretaker," and he still resided at and maintained the facilities of the camp on a year-round basis. As appellant alleges in his SAC, the "Site Manager position was classified as 'exempt'" for purposes of the payment of overtime wages, but the Caretaker position was "classified as 'non exempt,' meaning [appellant] was entitled to overtime." However, "[p]laintiff was never authorized to work overtime while working in the Caretaker position." He did, however, work overtime during the April-September months of those three years but, because of his allegedly "exempt" status, was not paid for those overtime hours.
This allegation is consistent with the employment agreement of April 16, 2001, between the parties, a document attached as Exhibit 1 to the SAC. That document specifically recites in a paragraph labeled "Compensation" the following: "As agreed, the salary for the exempt Site Manager position is $2,500.00 per month for the term of the position payable semi-monthly on the 15th and last day of the month. . . . The hourly rate for the non-exempt Caretaker position will be set based on Camp resources and your performance." (Emphasis supplied.)
Because of circumstances not articulated in the SAC, on April 2 and May 23, 2003, two memoranda were addressed to appellant by respondent's Executive Director stating that he was an "exempt employee" because, among other things, he was responsible for supervising two other workers.
In November 2004, appellant's job title was changed to "Facilities Manager" on a year-round basis. On May 22, 2005, he signed a letter verifying that he had received and agreed to a November 3, 2004, "verification letter" his employer wrote stating that his employment status had, up to then been and would continue to be, exempt for purposes of "minimum wage and overtime pay regulations."
Appellant continued in his employment with respondent until he was terminated on December 8, 2008.
On September 17, 2009, appellant filed his initial complaint against respondent, alleging four causes of action for fraud and deceit, failure to pay overtime wages, refusal to permit mandatory meal and rest periods, and failure to provide accurate payroll records. The record supplied us by the parties does not disclose what happened regarding this complaint but, on April 28, 2010, appellant filed a First Amended Complaint essentially re-alleging those four causes of action and adding causes of action for "Waiting Time Penalties" under Labor Code sections 201-203, and for alleged violations of Business and Professions Code section 17200, for a total of six causes of action.
The cover pages for both of appellant's complaints neglect to mention appellant's fifth cause of action for "Waiting Time Penalties."
Respondent filed a demurrer to that complaint on June 4, 2010. In its supporting memorandum of points and authorities, it contended that all of appellant's causes of action failed because they (1) did not state valid causes of action and (2) were all time-barred by the relevant statute of limitations.
On July 16, 2010, the trial court sustained respondent's demurrer as to all six causes of action of the First Amended Complaint on the basis of the applicable statute of limitations. Appellant was, however, given leave to amend to "supplement his allegations to support [his] contention" that the doctrine of equitable estoppel barred respondent from asserting a defense based on the applicable statutes of limitation.
As noted, on July 23, 2010, appellant filed his SAC, essentially asserting the same six causes of action but doing so in a far more extended manner.
On September 3, 2010, respondent filed a demurrer to the SAC and a supporting memorandum of points and authorities.
On October 8, 2010, a hearing on the demurrer was held in the trial court. On the same day, that court issued its order sustaining respondent's demurrer to the SAC without leave to amend. Among other things, the court held: "Accepting plaintiff's account of what occurred in the period from 2003 until he was terminated on December 8, 2008 as true, as set forth in Paragraphs 11 through 21 of the Second Amended Complaint, the Court nevertheless concludes, as a matter of law, that Defendant is not equitably estopped from asserting the statute of limitations as a defense. See Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 926-927 (elements of equitable estoppel); and Skulnick v. Roberts Express, Inc . (1992) 2 Cal.4th [sic: Cal.App.4th] 884, 890 (same). In this case, Plaintiff has failed to allege Defendant concealed from him any facts concerning his status as an exempt or non-exempt employee while employed as a Site Manager from 2001 to 2003. Plaintiff's allegations merely indicate that when he inquired about his classification, defendant asserted that its determination was correct under the law and it then required him to confirm his agreement with the determination as a condition of his continued employment. Defendant did not make any representation to Plaintiff in order to induce him not to file a complaint with the Labor Board or a civil action. In Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 367-368 [(Lantzy)],a construction defect case, the homeowners who filed suit after the ten-year statute of limitations set forth in CCP § 337.15 had run argued that the defendants should be equitably estopped from asserting the statute because they had told them that they were experts in construction and would take care of the problems. The defendants in fact did make repairs over the years that the plaintiffs described as largely ineffective. Id. at 368. Finally, the defendants asserted at various times that the windows were not defective and asked plaintiffs not to file suit. Id. The Supreme Court held that the trial court correctly sustained the defendants' demurrer to the complaint based on the statute of limitations defense. Id. at 384-385. The Supreme Court held that plaintiffs failed to plead sufficient facts to support their contention that defendants should be equitably estopped from asserting the statute of limitations. Id."
On October 25, 2010, appellant filed a motion for reconsideration of the trial court's ruling sustaining the demurrer to the SAC along with a supporting memorandum of points and authorities. The trial court denied that motion on January 19, 2011. Pursuant to these rulings, on February 14, 2011, a judgment of dismissal was entered by the superior court. However, several weeks earlier, i.e., on January 20, 2011, appellant had filed a notice of appeal from a judgment of dismissal.
III. DISCUSSION
We will start by briefly noting an issue neither party mentions: whether appellant's January 20, 2011, notice of appeal from, purportedly, the court's judgment of dismissal, is effective when that judgment was not filed until almost a month later. The answer is in the affirmative because, as several of our sister courts have pointed out, although an appeal may not be taken from an order sustaining a demurrer without leave to amend, a "notice of appeal must be liberally construed." (Cal. Rules of Court, rule 8.100(a)(2).) This means, among other things, that when such a notice is filed after the sustaining of a demurrer without leave to amend, but before the actual filing of the judgment of dismissal, such a notice "will be deemed to be sufficient if (1) a judgment of dismissal was actually entered . . . after the filing of the notice of appeal . . . ." (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 780; cf. also Orange Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 756 & Nowlon v. Koram Ins. Center, Inc. (1991) 1 Cal.App.4th 1437, 1440-1441.)
The core issues on this appeal are clearly whether (1) the applicable statutes of limitations had run and (2) the doctrine of equitable estoppel precluded respondent from relying on those statutes. Of course, our standard of review of a trial court's order sustaining a demurrer without leave to amend is de novo. (See, e.g., Palacin v. Allstate Ins. Co. (2004) 119 Cal.App.4th 855, 861.)
The answer to the first question is clearly in the affirmative. As noted above, appellant filed his first complaint against respondent on September 17, 2009. But the SAC, the pleading at issue, alleges that the only conduct appellant was complaining of occurred in the years 2001-2003 inclusive, and specifically in the months of April through September of those years. Appellant's opening brief to this court confirms that these are the only months and the only years for which he is claiming overtime wages qua a non-exempt employee. Thus, almost six years elapsed between the last period for which appellant claims he was improperly denied overtime wages and the date when he filed his initial complaint in this case. Clearly, that time is far too long, because the longest limitations period for any of the statutes sued on in the SAC is four years.
Specifically, section 338, subdivision (d), of the Code of Civil Procedure (CCP) provides for a three-year period of limitations for "[a]n action for relief on the ground of fraud or mistake," the essence of appellant's first cause of action in the SAC. Respondent's position in the trial court regarding the second through fifth causes of action was that all of them were time-barred under CCP section 338, subdivision (a), which provides for a three-year period of limitations for actions based on "a liability created by statute, other than a penalty or forfeiture." This clearly seems correct, as appellant's second through fifth causes of action are all based on various and sundry provisions of the Labor Code. In any event, nowhere in his briefs to us does appellant contend that any of these causes of action are subject to a longer period of limitations than the three years specified in CCP section 338, subdivision (a).
Section 17208 of the Business and Professions Code provides for a four-year period of limitations for actions brought under section 17200 et seq. of that code, the basis of appellant's sixth cause of action in his SAC. That clearly appears to be the longest limitations period of any of the six causes of action alleged in the SAC, and in his briefs to us appellant does not argue otherwise. Instead, he relies exclusively on the argument that none of these statutes of limitation were triggered because, per the allegations of the SAC, of the doctrine of equitable estoppel.
We thus turn to that key issue. Our Supreme Court defined the elements of equitable estoppel in Lantzy, supra, 31 Cal.4th at p. 383, where it reversed a decision of another division of this court and held that that principle was not applicable on the facts pled in that case (a case alleging construction defects against a Contra Costa County homebuilder). In so doing, it stated: " ' ". . . Equitable estoppel . . . comes into play only after the limitations period has run and addresses . . . the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period. [Equitable estoppel] is wholly independent of the limitations period itself and takes its life . . . from the equitable principle that no man [may] profit from his own wrongdoing in a court of justice." ' [Citations.] Thus, equitable estoppel is available even where the limitations statute at issue expressly precludes equitable tolling. [Citations.]"
More recently, our Supreme Court elaborated further on the elements of equitable estoppel. In Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 37 (Honeywell), it stated: "The basic principles of equitable estoppel are well established and easily stated. 'Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.' (Evid. Code, § 623.) ' " 'Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.' " ' [Citations.]" (See also Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1089-1090; Cordova v. 21st Century Ins. Co. (2005) 129 Cal.App.4th 89, 108.)
Curiously, Honeywell is not cited in any of the parties' briefs to us.
In his briefs to us, appellant argues that his SAC adequately pled the requisites of equitable estoppel. He summarizes his contentions on this subject thusly: "A reasonable reading of the Second Amended Complaint does establish that Appellant has alleged that: [¶] (1) Respondent knew that Appellant was a non-exempt employee and wrongly concealed this known fact from him. Respondent told him time and again otherwise; [¶] (2) Respondent took the overt action in what is pleaded as the 'cover-up fraud.' Respondent forced Appellant to sign the Verification, which incorporated concealed facts, incomplete and false information, under penalty of termination to head off Appellant's discovery that he was always a non-exempt employee. The cover-up fraud was designed to and did stop Appellant from investigating, filing a claim with the Labor Board and filing a lawsuit prior [to] the running of the subject statutes of limitations; [¶] (3) Appellant did not know what the true facts were and was forced to rely on and did reasonably rely on Respondent's version of them. He believed that he was exempt. He was fooled; [¶] (4) Respondent was defrauded of approximately 18 months of substantial overtime."
As noted above, the trial court relied on the principles set forth in Lantzy in rejecting these arguments. We agree with its conclusion for the reasons set forth below.
First of all, the exhibits attached to appellant's SAC make quite clear that, both at the time of and after his hire by respondent, he was both informed and specifically agreed that his status as Site Manager was exempt. Both the information regarding his status and appellant's agreement thereto were memorialized numerous times. Thus, on May 6, 2001, both appellant and two officials of respondent signed a detailed, six-page, single-spaced employment agreement bearing the date of April 16, 2001. That agreement specifically stated on its first page that his monthly salary as Site Manager for the spring and summer months was "the salary for the exempt Site Manager position is $2,500.00 per month" while appellant's hourly rate of pay "for the non-exempt Caretaker position" would be set thereafter. (Emphasis supplied.)
Second, on April 2, 2003, appellant was sent a letter, also attached as an exhibit to the SAC, making clear his employment status. The stated purpose of that letter was to "clarify your employment status at Cazadero Performing Arts Camp." It went on to state that "due to your supervising two people, you qualify as an exempt employee . . . ."
Third, also attached as an exhibit to the SAC is a memorandum from the Executive Director of respondent to appellant dated May 23, 2003, which states the following: "Employment Status: As you know from the letter of hire that I transmitted to you on November 12, 2002, you are an hourly worker from November through May 1. Thereafter, you are an exempt employee paid on a salary basis." (Emphasis supplied.)
Fourth, an internal e-mail apparently secured during discovery in the litigation suggests rather clearly that, the following month, i.e., June 2003, appellant was raising questions with various of his supervisors at the camp about whether or not his Site Manager status was, indeed, properly classified as exempt. That e-mail includes this pregnant—specifically regarding the equitable estoppel claim—sentence: "Geoff is telling his supervisor . . . that he wants overtime for the work he is doing and that he may file a complaint with the labor commission."
Fifth, on November 3, 2004, one of appellant's supervisors wrote him a letter seeking to "clarify your employment status with Cazadero Performing Arts Camp . . . . As per memos you received on April 2, 2003 and May 23, 2003 date you have been determined to be an exempt employee of Cazadero. That means that because of the nature of your responsibilities, you are exempted from both minimum wage and overtime pay regulations." Appellant obviously received this letter because he wrote and signed a hand-written note at the bottom of it questioning not the statement just quoted but, rather, the number of paid vacation days to which he was entitled. This fact rather clearly suggests that, at the critical time in question, i.e., 2004, appellant was not at all reluctant to contest a matter his employer was putting in writing regarding the circumstances of his employment.
Sixth and finally, on May 22, 2005, appellant signed a letter stating: "I have read and understood the verification letter of employment I received dated November 3, 2004. Your signature indicates your agreement to work for Cazadero under the terms of employment as described. No other agreement is in force for this position. Continuation of employment requires your signature below."
Clearly, these six facts established by the record, especially when considered in combination, make clear that the criteria for application of the doctrine of equitable estoppel articulated in Lantzy and Honeywell were not met by the allegations of appellant in his SAC. This is so because, among the allegations of the SAC are the following:
"11. The defendants, and each of them, knew at the time the contract was signed that plaintiff, while working as Site Manager, was not truly a part of management and therefore not exempt. While on paper Plaintiff's duties appeared to comply with the criteria of being a true manager under State law and regulations, Plaintiff's actual duties on the ground fell far short. Plaintiff's duties were only those of a working foreman. . . . Defendants, and each of them, knew from the beginning of Plaintiff's hire, up until the time when the Code of Federal Regulations (hereinafter 'CFR') was amended in March of 2004 making all employees of camps such as the Cazadero Performing Arts Camp exempt, that the Site Manager position, while exempt on paper, was non-exempt in reality. Plaintiff was never truly an exempt employee because his duties never qualified him as 'exempt' as defined by Industrial Welfare Commission Order § 11100 (A)(1)(a) or (b) or (c) or (d) or (e) or (A)(2)(a)(i) or (ii) or (b) or (c) or (d) or (e) and (f) and 29 CFR §§ 541.101 et. Seq. then in effect. [¶] 12. During the course of working as the Site Manager, Plaintiff became suspicious of his exempt status and confronted both [his managers] . . . . [¶] 17. When Jim Mazzaferro and/or Marcy Straw and/or the committee that wrote and/or approved both Exhibits 3 (the 11/3/04 letter) and 4 (Verification), and all of the Defendants, made the representation that Plaintiff had been an exempt employee in Exhibit 3, Mazzaferro and all of the Defendants knew it to be false and Mazzaferro and the Defendants made the representation with the intent to deceive and defraud the Plaintiff and to induce the Plaintiff to act in reliance on the representation in the manner hereafter alleged or with the expectation that Plaintiff would so act by forcing him to sign the Verification or lose his job. [¶] 18. Plaintiff, at the time that the said representations were made in Paragraph 17 herein and in Exhibits 3, 4, 5 and 6 and at the time the plaintiff took the actions herein alleged, was ignorant of the concealment and falsity of the said 'exempt employee' representation(s) in Exhibit 3 and believed it (them) to be true. In reliance on the representation(s) that he was an exempt employee and since he would lose his job if he refused to sign the Verification, and taking into account that he had nowhere else to live, had no independent health insurance and that he has very little expendable money, Plaintiff signed the Verification under duress on May 22, 2005 to keep his job and stopped further inquiry into whether he was truly exempt. . . . Until December of 2008, the issue of Plaintiff's exempt-employee-status had always been a closed topic in his mind because he believed that his signature on the Verification meant that he could never investigate or bring the lack of overtime up with management because if he did he would lose his job."
Perhaps the most pregnant of these allegations is that in paragraph 11, where appellant not only acknowledges, but affirmatively alleges, that as of March of 2004 the Code of Federal Regulations (CFR) had been amended to make clear that "all employees" of institutions such as the Cazadero Camp were exempt from overtime pay regulations. Thus, as of that point of time, again per the SAC itself, the only possible dispute was regarding appellant's status from his April 2001 hire until March of 2004, when that status became crystal clear per the CFR regulations. And yet appellant did not file his first complaint on this issue until five and a half years after March 2004, i.e., in September 2009.
Paragraph 15 of the SAC reiterates the allegation that "the law had changed in March of 2004 making all employees of camps like Cazadero exempt" from overtime pay requirements. Nowhere in his SAC does appellant suggest, much less allege, that he was ignorant of that change. Further, logic suggests that anyone "suspicious of his exempt status" would not be ignorant of such a change.
In his opening brief to us, appellant quotes extensively from the foregoing and other portions of his SAC, sometimes quoting several times from the same paragraphs. He summarizes his argument as to why the actions of respondent's employees triggered the principles of equitable estoppel thusly: "In the case at Bench, Appellant was induced to stop his confrontations and potential investigation of his employment status by the use of the threat of firing coupled with having to agree to the terms of the [November 2004] Verification that incorporated by reference a memo that he was exempt which was based on concealed, incomplete and false facts." He continues in the same vein later in the same brief: "Appellant alleges that the threat of being fired was the inducement for Appellant to stop investigating whether he was exempt during 2001, 2002 and 2003 because Respondent feared that Appellant would discover the truth and then file a claim with the Labor Board or file a lawsuit."
We agree with the trial court that neither these contentions, nor any of the allegations in the SAC, preclude application of the doctrine of equitable estoppel. This is so principally because of the exhibits attached to appellant's own SAC, summarized above, and allegations in the SAC itself. These documents and allegations establish that appellant (1) was repeatedly advised in the years 2001 to 2004 that he was an exempt employee and thus not entitled to overtime pay while serving as Site Manager in the spring and summer months, (2) acknowledged in writing his agreement that such was the case, (3) did so notwithstanding his 2003 disputes with Camp management "that he is a manager and exempt," and (4) was apparently aware that, per the March 2004 amendments to the CFR regulations, he had clearly become an exempt employee as of that date.
Bearing in mind the standards for equitable estoppel set forth in Lantzy and Honeywell, perhaps the most fatal of the facts revealed by appellant's SAC and its attachments are that appellant was clearly not " ' "ignorant of the true state of facts" ' " nor did he " ' "rely upon the conduct [of the Cazadero personnel] to his injury." ' " (Honeywell, supra, 35 Cal.4th at p. 37.) The absence of such ignorance is established by, first of all, exhibit 2 to the SAC, an internal memoranda circulated between personnel of respondent in June 2003. It recites that appellant was then "wanting to get paid overtime and is disputing that he is a manager and exempt." It then states that appellant was telling his supervisor "that he wants overtime for the work he is doing and that he may file a complaint with the labor commission."
The absence of any ignorance "of the true state of the facts" is further confirmed by the allegation of the SAC that "[d]uring the course of working as the Site Manager, Plaintiff became suspicious of his exempt status and confronted" two of his supervisors regarding that subject. Thus, under the third and fourth tests listed by the Honeywell court (Honeywell, supra, 35 Cal.4th at p. 37), appellant's suspicions and/or knowledge of the claims he describes in his complaint and the exhibits thereto clearly trumps any claim of duress on the part of respondent.
Notwithstanding these admissions in the SAC and its exhibits, appellant did not file any action regarding his claims for overtime pay for 2001-2003 until September 2009. Such clearly does not meet the test enunciated by our Supreme Court in Lantzy that, to trigger an equitable estoppel to plead a statute of limitations defense, the complaint must allege that the "defendants' conduct actually and reasonably induced plaintiffs to forbear suing within" the applicable period of limitations. (Lantzy, supra, 31 Cal.4th at p. 385.) The allegations of the SAC and the substance of its many attachments make clear appellant's forbearance from bringing such an action until September 2009 was not "actually and reasonably induced" by respondent's actions.
Nor do the allegations of the SAC, when coupled with the facts recited in the exhibits thereto, satisfy the final two requirements enunciated by that court in Honeywell, to wit, that the appellant " ' "must be ignorant of the true state of facts" ' " and " ' "must rely upon the conduct [of respondent] to his injury." ' " (Honeywell, supra, 35 Cal.4th at p. 37.) If anything, the SAC and its exhibits establish that appellant was far from "ignorant" regarding the issue of whether he was entitled to overtime pay for his work during the spring and summer months of 2001-2003.
In his briefs to us, appellant raises two other arguments that are entitled to mention, albeit only briefly. First, he argues that his filing of a complaint with the California Department of Industrial Relations on February 23, 2009, tolled the running of the periods of limitations applicable to the causes of action alleged in the SAC. This "equitable tolling" argument fails for several reasons.
First of all, there was never an allegation in the SAC concerning that filing. It— and the subsequent rejection of the claim by the Department—were first brought to the trial court's attention via a motion for reconsideration filed on October 25, 2010, several weeks after that court had entered its order sustaining respondent's demurrer to the SAC without leave to amend. As the trial court here correctly held, under CCP section 1008, a litigant may not use a motion for reconsideration to assert a new theory (here, the tolling of the statute of limitations via an administrative agency complaint) to the trial court after that court has already ruled on the core issues—here, the issues raised by respondent's demurrer to the SAC, which it had already sustained without leave to amend. Any such attempt is contrary to the requirement of CCP section 1008 that any motion for reconsideration must be "based on new or different facts, circumstances, or law." (CCP § 1008, subd. (a); see, e.g., this court's decision in Gilberd v. A.C. Transit (1995) 32 Cal.App.4th 1494, 1498-1500.)
Second, even if the February 2009 administrative filing could and should have been considered by the trial court, it clearly would not have altered its ruling regarding the running of the statute of limitations concerning claims accruing (if at all) in the period 2001-2003, because the administrative claim concerned overtime wages claimed to be due for the period from March 2005 to October 2008, and not for the months of April to September of 2001, 2002, and 2003, the relief sought via the SAC.
As noted earlier, both appellant's SAC and his briefs to us make clear that the relief he was seeking via that complaint is for overtime pay for the April-September months of the years 2001, 2002, and 2003.
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Third, appellant's motion for reconsideration appears to be untimely, as it was filed on October 25, 2010, more than the statutorily-required 10 days after the trial court's October 8, 2010, order sustaining respondent's demurrer to the SAC without leave to amend.
Finally, in his opening brief to us, appellant contends that the doctrine of "continuing fraud" applies here, i.e., that his action is still viable whether or not the doctrine of equitable estoppel applies. But appellant never articulated a "continuing fraud" theory in the trial court, either in opposition to respondent's demurrer to appellant' SAC or in his motion for reconsideration. It is, therefore, clearly waived.
IV. DISPOSITION
The judgment of dismissal is affirmed.
Haerle, J.
I concur:
Lambden, J.
I concur in the judgment:
Kline, P.J.