ARYEH v. CANON BUSINESS SOLUTIONS

Appellant's Petition for Review

Cal.July 30, 2010

5184929 Case No.: IN THE SUPREME COURTOF THE STATE OF CALIFORNIA JAMSHID ARYEH, SUPREMECOURT Plaintiff and Appellant, bEIL=3 Vs. | JUL 3.0 2010 CANON BUSINESS SOLUTIONS, INC, Defendant and Respondent. Frederick K. Cnirioh Clerk Desay — After a Decision By the Court of Appeal, Second Appellate District, Division Eight Case No. B213104 PETITION FOR REVIEW R. Duane Westrup, SBN 58610 Linda Guthmann Krieger, SBN 148728 Mark L. Van Buskirk, SBN 190419 Terrence B. Krieger, SBN 162399 Jennifer L. Connor, SBN 241480 KRIEGER & KRIEGER WESTRUP KLICK, LLP 249 East Ocean Boulevard 444 Ocean Boulevard, Suite 1614 Suite 750 Long Beach, California 90802-4524 Long Beach, California 90802 Telephone No.: (562) 432-2551 Telephone No.: (562) 901-2500 Facsimile No.: (562) 435-4856 Facsimile No.: (562) 901-2522 E-Mail: jconnor@wkalaw.com E-Mail: tkrieger@kriegerlaw.com Attorney for Plaintiff, Appellant, and Petitioner JAMSHID ARYEH Service on the California Attorney General and The Los Angeles County District Attorney Pursuant to Business & Professions Code § 17209 and C.R.C. Rule 8.29 Case No.: IN THE SUPREME COURTOF THE STATE OF CALIFORNIA JAMSHID ARYEH, Plaintiff and Appellant, VS. CANON BUSINESS SOLUTIONS,INC, Defendant and Respondent. After a Decision By the Court of Appeal, Second Appellate District, Division Eight Case No. B213104 PETITION FOR REVIEW R. Duane Westrup, SBN 58610 Linda Guthmann Krieger, SBN 148728 Mark L. Van Buskirk, SBN 190419 Terrence B. Krieger, SBN 162399 Jennifer L. Connor, SBN 241480 KRIEGER & KRIEGER WESTRUP KLICK, LLP 249 East Ocean Boulevard 444 Ocean Boulevard, Suite 1614 Suite 750 Long Beach, California 90802-4524 Long Beach, California 90802 Telephone No.: (562) 432-2551 Telephone No.: (562) 901-2500 Facsimile No.: (562) 435-4856 Facsimile No.: (562) 901-2522 E-Mail: jconnor@wkalaw.com E-Mail: tkrieger@kriegerlaw.com Attorneyfor Plaintiff, Appellant, and Petitioner JAMSHID ARYEH Service on the California Attorney General and The Los Angeles County District Attorney Pursuant to Business & Professions Code § 17209 and C.R.C. Rule 8.29 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ..........0 0.0.0.0. c cee cen eee iii QUESTIONS PRESENTED FOR REVIEW ............0.200 22000 e 1 WHY REVIEW SHOULD BE GRANTED ..................2..2.. 1 SUMMARYOF THE CASE .......0.0. 0.00.eens 4 DISCUSSION OF THE LEGAL PRINCIPLES ................0..2.. 8 1. Plaintiff Petitions This Court To Address How To Apply The UCL Statute Of Limitations When The Same Discrete Wrong Occurs Repeatedly Within And Outside Of The Statute Of Limitations ... 8 A. Does TheStatutory Clock Start Once Or Re-Start Each Time A Defendant Invades Plaintiff's Rights And Causes Injury? ........ 9 B. Does Plaintiff's Earlier Discovery Of The Wrong Outside Of The Limitations Period Bar Bringing Claims Arising From Conduct Within The Limitations Period? .................... 15 2. The Court OfAppeal’s Decision Reflects Confusion In The Courts About The Role A Plaintiff's Knowledge Should Have, IfAny, In Applying The UCL Statute Of Limitations .......... 18 CONCLUSION ......0. 0... ccccee teen n eee ence 23 CERTIFICATE OF WORD COUNT ...... bee eee eee eee eee 24 ii TABLE OF AUTHORITIES Page(s) STATE CASES Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal-App.4th 1375, 11 Cal.Rptr. 3d 412 .............0..... 13 Barndt v. County of Los Angeles (1989) 211 Cal.App.3d 397, 259 Cal._Rptr.372 ................0.00.4. 21 Broberg v. Guardian Life Ins. Co. OfAmerica (2009) 171 Cal-App.4th 912, 90 Cal.Rptr.3d 225 ................00. 20 Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 51 Cal.Rptr.3d 118 ..........0..0..000.. 20 Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442, 153 Cal.Rptr. 28... ..0. 000000. 21 Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 27 Cal.Rptr.3d 661 .......0.. 0.000000 00 cee 9 Grinzi v.San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 14 Cal.Rptr.3d 893 .........0...0.00.00. 10 Grisham v. Philip Morris U.S.A.. Inc. (2007) 40 Cal.4th 623, 54 Cal.Rptr.3d 735 .......00..0.0.0.0000.. 19, 20 Hogar Dulce Hogar v. Community Develop. Com’n OfEscondido (2003) 110 Cal.App.4th 1288, 2 Cal.Rptr.3d 497 ...........00... 12-13 Howard Jarvis Taxpayers Association v. City Of La Habra (2001) 25 Cal.4th 809, 107 Cal.Rptr.2d 369 ...........00.0.00.0.0.04. 12 Jones v. Tracy School District (1980) 27 Cal.3d 99, 165 Cal.Rptr. 100 ........0.00.0.00...000000002. 10 Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 975, 69 Cal.Rptr.2d 623 ..........00...0.00.... 2 ili STATECASES(Cont’d.) Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 131 CalRptr.2d 29 ...........0..0......0... 21 Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal-App.4th 1282, 119 Cal.Rptr.2d 190 ..............0... 20 State ex. rel. Metz v. CCC Information Services. Inc. (2007) 149 Cal.App.4th 402, 57 Cal.Rptr.3d 156 ........00...00000... 13 Salenga v. Mitsubishi Motors Credit Of America, Inc. (2010) 183 Cal_App.4th 986, 107 Cal.Rptr.3d 836 ..............0000. 21 Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 117 Cal.Rptr.2d 331 ............. 15-18, 20 Tsemetzin v. Coast Federal Savings And Loan Association (1997) 57 Cal.App.4th 1334, 67 Cal.Rptr.2d 726 .............0000.. 13 FEDERAL CASES Betz v. Trainer Wortham & Co., Inc. (9"" Cir. 2007) 236 Fed.Appx. 253 2.0... cccece nea 17 Suh v. Yang (N.D. Cal. 1997) 987 F.Supp. 783 2.0.0.0... 0.eee eee 11 STATUTES & RULES Business and Professions Code, § 17200 .................... in passim Business and Professions Code, § 17204 ...........0. 0... cece eee 9 Business and Professions Code, § 17208 ............ 20.000 c eee 8-9 California Rules of Court, Rule 8.500(b)\(1) .............0.0..0.0.0.. 4 Code of Civil Procedure, § 338(a) 2.0...cee 2 iv TO THE HONORABLE CHIEF JUSTICE AND HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Petitioner Jamshid Aryeh seeks review of a published opinion by the Court of Appeal, Second Appellate District, Division Eight, filed June 22, 2010 (Exhibit “A”). No rehearing was requested. QUESTION PRESENTED FOR REVIEW This case presents the following question for review: In a UCL case, where the same discrete wrongful act giving rise to damage occurs repeatedly, does the statutory clock start only once when plaintiff first discovers the wrong or does it run anew each time a defendant invadesplaintiff's rights and causes injury? WHY REVIEW SHOULD BE GRANTED This case presents the important and unsettled legal issue about how to apply thestatue of limitations in a Bus. & Prof. Code § 17200 et seq. (Unfair Competition Law (“UCL”)) case involving multiple, repeated wrongfulacts, whereby each separate discrete act produces immediate and separate injury, occurring both within and outside the statute of limitations. Review is warranted for two primary reasons:First, resolving the question ofwhetherthe UCLstatute of limitations begins to run on the first-occurrence of actionable wrong or runs anew with each subsequent free-standing violation greatly impacts the extent to which victims of unfair business practices can vindicate their rights. Although the issue is sparse in the context of the UCL,it is germaneto contract disputes, infringementlitigation, and actions governed by Cal. Code ofCiv. Pro. § 338(a). It is also consistent with the UCL’s consumer protection scheme that anticipates remedying recurring conduct, (i.e., “unlawful, unfair, or fraudulent business practices’’) as well as single-isolated offenses(i.e., “unlawful, unfair, or fraudulent business act”).! Second, conflicting precedent showsjudicial confusion as to the role a plaintiff's discovery ofwrongdoing should have,ifany, in applying the UCL statute oflimitations. In a case that disavowed application ofequitable tolling and delayed discovery, the Court ofAppealsstill used Plaintiff's knowledge, not to extend accrual, but rather to bar claims based on independent conduct that occurred within the limitations period. Given that a UCL claim is not dependenton plaintiff's knowledge, the Second District’s offensive use of a plaintiff's discovery of wrongdoing is unprecedented. The impact of the Second District’s holding that, when a defendant’s 'The 1992 Amendmentto Bus. & Prof. Code § 17200 changedthe formerly plural term “practices” to the singular term “act” preceded by the singular modified “any.” Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969, 69 Cal.Rptr.2d 623 (observing that the plain meaning ofthe amendment is that the UCL now coverssingle acts of misconduct.) -2- wrongful acts cover a period oftime, a UCL cause ofaction accrues only once at the time ofthe initial act is far-reaching. Ifthe statutory clock begins to run when the first violation occurs, irrespective of a defendant’s subsequent repeated wrongful acts, then plaintiffs who do not bring UCL claims within four years will lose the ability to seek recourse forever. If the first violation is the only one that can be sued upon, then defendants who “escape” the statutory time frame will be given carte blanche to continue to invade a plaintiffs rights indefinitely. For example, in the consumer context, if hypothetically, a creditor repeatedly charged fraudulent amounts to consumers’ credit cards, and the first violation was the only one that could be sued upon, then consumers who paid the longest and suffered the most would beleft without any remedyat all, while newer consumers could recover for the violations they suffered. Both sets of consumers suffered the same violation during the limitationsperiod, but they will be treated differently in that those subjected to wrongdoing more than four years ago will be completely denied recovery while more recent victims can sue. As Justice Rubin wrote in his ten-page dissenting opinion, “The injunctive relief authorized by the UCL should not be automatically unavailable following recent mis-conduct merely because the first unfair practice took place several years earlier.” Slip Opn.- Dissent, p. 7. Based on the importance of the unsettled legal question raised and the need to secure uniformity of decisional authority applying the UCL’sstatute oflimitations, Plaintiff respectfully requests that this Court grant review. CRC, Rule 8.500(b)(1). SUMMARYOF THE CASE The facts of this case are straightforward and undisputed. In November 2001, Jamshid Aryeh (‘Plaintiff’) entered into a lease agreement with Canon BusinessSolutions, Inc. (“Defendant” or “Canon’) for the lease of a black and white copier. Slip Opn., p. 2. Under the agreement, Plaintiff agreed to pay a monthly fee in return for a monthly copy allowance, and also agreed to pay additional excess copy charges for each additional copy beyond the monthly allotment. In February 2002, Plaintiff entered into a second lease agreement with Canonfor the lease of a color copier under similar terms. Shortly after entering into the copy rental agreements, Plaintiff began to notice that monthly meter readings taken by Canon’s servicemen did not accurately reflect the actual number of copies made. Consequently, Plaintiff began keeping his own records ofthe number ofcopies made on each machine and determined that he was being charged for “Test Copies” made when Canon personnel repaired or serviced the machines. Slip Opn., p. 3. Whenever problems arose or maintenance on a copier was required, Canon dispatched personnel to repair or service the copier, during which time the serviceman would run “Test Copies” on the copier. These Test Copies caused Plaintiffto exceed the monthly total allowable photocopies for a given month and incur additional fees. Despite Plaintiff's attempts to have Canon correct the “excessive” copying charges, Canon failed to reimburse Plaintiff for the overcharges and also charged him late fees. Id. On January 31, 2008, Plaintiff filed a consumerclass action complaint on behalf of himself and similarly-situated persons residing in the State of California whoentered into copy rental agreements with Canon and who were overcharged for copies. Slip Opn., p. 3. The complaintalleged a single cause of action for unfair competition pursuant to the UCL (Bus. & Prof Code § 17200 et seq.) and sought restitution for overcharges. Therelief requested waslimited to recovery for improper charges incurred during the four year period preceding the action. Canon demurred to the complaint and asserted, among other grounds, that the claims were barred by the four-year statute of limitations underBusiness & Professions Code § 17208. Findingthat Plaintiff had notice of the overchargessince at least 2002, the trial court sustained the demurrer with leave to amend. Id. Plaintiff then filed his first amended complaint which incorporated an amendment whereby Plaintiff omitted his prior reference to first discovering the overcharges “shortly after entering into the copy rental agreements” and substituted in lieu thereof a listing of 17 specific dates and instances of overcharges spanning from February 6, 2002 through November16, 2004.Slip Opn., p. 3-4. Specifically, Plaintiffalleged the following unauthorized charges for Test Copies: February 6, 2002 100 Test Copies March 12, 2003 100 Test Copies March13, 2003 100 Test Copies June 5, 2003 100 Test Copies February 24, 2004 870 Test Copies February 27, 2004 700 Test Copies March 24, 2004 116 Test Copies April 1, 2004 421 Test Copies April 2, 2004 490 Test Copies April 5, 2004 260 Test Copies April 6, 2004 622 Test Copies April 9, 2004 250 Test Copies May 6, 2004 169 Test Copies June 9, 2004 204 Test Copies June 16, 2004 179 Test Copies October 1, 2004 294 Test Copies November16, 2004 53 Test Copies [Appellant’s Appendix filed in support of Appellant’s Appeal, p. 57]. Ofthe 17 itemized instances, Plaintiffpursued UCL claims and sought redress for the 13 charges occurring on dates within the four years precedingthefiling of the suit - in other words, after January 2004. Slip Opn., p. 4.2 Plaintiff * Specifically, Plaintiff alleged “By this complaint, Plaintiff seeks to recover for amounts wrongfully obtained by Defendants from Plaintiff, and others similarly situated, in connection with Test Copies ran by Defendants from -6- alleged that “Each time [Canon’s] servicemen ran Test Copies...was independent of any prior occasions when [Canon’s] servicemen ran Test Copies” and each date “resulted in a separate and distinct violation giving rise to separate and distinct damage.” Id. Canon demurred to the amended complaint andthe trial court again sustained the demurrer with leave to amend. Id. Pursuantto the trial court’s directive, with the filing of the second amended complaint, Plaintiff attached copies of the November 2001 and November 2002 lease agreements. Id. Canon demurred again based on the statute of limitation and also argued that Plaintiff's claims were barred by laches. The trial court determined the second amended complaint was barred by the statute of limitations. Thetrial court stated that “there is no continuing practices doctrine that applies here” and that, No equitable tolling that I can see that could possibly apply; {under section] 17200, whenthe act occurs the clockstarts, and here were haveanallegation that there was actual knowledge in February of 2002 in anearlier pleading. Slip Opn.,p. 5. Having concludedthat Plaintiffwas “concededly” aware ofhis claim “almost Six years in advance of the suit being filed,” the trial court sustained the demurrer without leave to amend. Id. Plaintiff filed a timely appeal. January 31, 2004 (fouryearspriorto the filing ofthis action) through the date ofjudgmentin this action.” [Appellant’s Appendix,p. 59] -7- On June 22, 2010, the Court of Appeal, Second District filed its published opinion affirming the trial court’s dismissal. In affirming thetrial court’s ruling, the Second District instructed that when the allegations regarding a defendant’s conduct covers a period of time, the cause of action accrues at the time of the initial conduct. Slip Opn., pp.6-7. Since Plaintiff knew “shortly after” he entered into the second contract in February 2002 of Canon’salleged overcounting ofcopies and overcharging for them, the Second District found that Plaintiff's claims accrued six years earlier. Slip Opin., p. 8. Further, the Second District found no precedentor policy considerations to support applying a continuing violations to UCL claims. The Second District concluded: Here, once appellant was awarehe wasbeing “overcharged”for test copies and that his protests to Canon were futile, he could and should have taken diligent action. He could not wait for years until the agreement expired while more “overcharges” accumulated before filing a complaint. Slip Opin., pp. 11-12. Rejecting Plaintiffs assertionthat the statutory clock “re-started” each distinct time CanoninvadedPlaintiff's rights and caused injury, the Second District held Plaintiff's UCL claims untimely. DISCUSSION OF THE LEGAL PRINCIPLES 1. Plaintiff Petitions This Court To Address How To Apply The UCL Statute Of Limitations When The Same Discrete Wrong Occurs Repeatedly Within And Outside Of The Statute Of Limitations Statutes oflimitations serveto protect entities and persons from having to defend against stale claims and essentially seek to put the past to rest. If individuals let too many years lapse between the accrual of a claim of wrongdoing and seeking redress, statues oflimitations will declare the lawsuit time-barred. Thestatute of limitations for actions brought under the UCLis “four years after the cause of action accrued.” Bus. & Prof. Code § 17208. Generally speaking, a cause ofaction accruesat “the time when the cause of action is complete with all ofits elements.” Fox v. Ethicon Endo-Surgery,Inc. (2005) 35 Cal.4th 797, 806, 27 Cal.Rptr.3d 661. With respectto the unfair competition laws, the four-year period begins to run when putativeplaintiff has been subjected “to an unlawful, unfair, or fraudulent business act or practice” and “has suffered injury in fact and lost money orproperty as a result of the unfair competition.” Bus. & Prof. Code §§ 17200 and 17204. Simply put, the alleged wrongful act and the resulting sustained injury are the “triggering events”thatstart the runningofthe statutory clock. The question remains, however, whether in the context of a continuing wrong in which the same offendingactis repeated, does the UCLstatutory clock begin to run only -9. once or anew with each offending act? A. Does The Statutory Clock Start Once Or Re-Start Each Time A Defendant Invades Plaintiff's Rights And Causes Injury? In concluding that only the first-occurrence of the wrongful conduct triggers the statutory clock, the Court ofAppeals renders free-standing conduct occurring within the preceding four years (which would otherwise be actionable, but for the prior conduct) unrecoverable. Such a rule departs from traditional principles of measuring the statute of limitations and the doctrine of continuous accrual. Justice Rubin, writing for the dissent, correctly suggests that what Plaintiffadvocates is better termed the “continuous accrual” instead ofthe “continuousviolation” doctrine. Slip Opn.- Dissent, pp. 2 and 5.2 Regardless of name, however, the majority rejected the proposition that when an “unfair, unlawful, or fraudulent conduct” recurs, a cause of action accrues each time a wrongful act occurs. > To the extent Plaintiff incorrectly labeled his theory, such is not fatal to seeking review. See, Grinzi_v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 84-85, 14 Cal.Rptr.3d 893 (observing that “appeal of a judgmentof dismissal after sustaining a demurrer without leave to amend requires the consideration of whether the allegations state a cause of action under any legal theory. Under these circumstances, new theories may be advancedforthe first time on appeal.”’); Jones v. Tracy School District (1980) 27 Cal.3d 99, 109, 165 Cal.Rptr. 100 (considering equitable tolling doctrine not previously raised stating “We have, on occasion, allowed consideration of issues not previously raised by the parties where the facts necessary for their resolution were on record.”) -10- Plaintiff asserts that the statutory clock not only starts at the first occurrence - i.e., the time an allegedly offending act was committed and caused injury - but rather “re-starts” each time the defendant invades the plaintiff's rights and causes injury. Applied to the matter sub judice, Canon engaged in a new violative act under the UCL each time it overcharged Plaintiff for Test Copies. As plead and unambiguouslystatedin his briefing, Plaintiff is mot pursuing claims for charges incurred outside the statutory period, but only the thirteen (13) overcharges made by Canon during the four-yearperiodpriortofiling his complaint. ForeshadowingPlaintiff s theory, the Northern District ofCalifornia in, Suh v. Yang (N.D. Cal. 1997) 987 F.Supp. 783, recognized the notion of multiple UCL claims, some ofwhich occurred within the statute oflimitations and some of which were outside the statute. Slip Opn.- Dissent, p. 9 (dissenting opinion that “Using legal jargon, the presentcase is on ‘all fours’ with Suh.”) In Suh, the plaintiff alleged trademark infringement and unfair competition claims based on defendant’s use of“Kuk Sool Won”and “World Kook Sool Association” logo marks that were first used approximately nine years prior to the filing of the complaint. Suh, supra, 987 F.Supp. at 795. Rejecting defendant’s statute of limitations defense, the district court found that plaintiffwas subjected to a series ofmultiple wrongsin thatthe allegedly -11- infringing display ofdefendant’s service name on products and advertisements could create a separate cause of action for unfair competition and trademark infringement. Id. at 796. Specifically, the Suh court stated, [p}laintiff's claims for unfair competition would not be barred by the four-yearstatute of limitations since the alleged wrongs (i.e., the wrongful use and dilution of Suh’s service marks) are multiple, continuous acts, and some of these acts have occurred within the limitations period. \d. at 795. {emphasis added] The district court concluded that plaintiffs claims involved repeated acts of wrongful appropriation, each creating “a separate cause of action for unfair competition and trademark infringement.” Id. at 796. Outside of the UCL, California courts have long acknowledged that whenan obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period. This Court, for example, applied continuous accrualto plaintiffs’ claims in Howard Jarvis Taxpayers Association v. City OfLa Habra (2001) 25 Cal.4th 809, 107 Cal.Rptr.2d 369. In Howard, while the original enactment of the City’s Ordinance was an event giving rise to plaintiffs’ cause of action to invalidate a tax, it was not the only event. Id. at 819. The Court found that taxpayers had alleged an ongoing violation based on the City’s continued imposition of a tax without voter approval and that the statute of limitations began anew with each collection. See, Howard, supra, 25 Cal.4th at 821-822 -12- (stating that those causes of action are not barred merely because similar claims could have been madeat earlier times as to earlier violations.) The Court also limited the claims to “injuries occurring in the statutory three-year period before suit is brought and applies only to plaintiffs injured by tax collections within the three-year period.” Id. at 825. Likewise, the Courts of Appeal have recognized the applicability of continuousaccrualin cases involving public entities and breach of contract. In Hogar Dulce Hogar v. Community Development Com’n Of City Of Escondido (2003) 110 Cal_App.4th 1288, 1298, 2 Cal.Rptr.3d 497 the Fourth District found thatplaintiff s claims were subjectto the continuing accrual rule and held that the statute of limitations began to run on each date that the redevelopment agency’s payments were actually due. Citing Howard, the appellate court held “{I]n instances of long-standing statutory violations, the continuing accrual rule effectively limits the amountofretroactive relief a plaintiffor petitioner can obtain to the benefits or obligations which came due within the limitations period.” Id. at 1296. See also, Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375 (affirming application of the continuous accrual rule to contractual arrangements with periodic payments, including an oil and gas operating agreement). The SecondDistrict also recognized the continuousaccrual doctrine in -13- State ex. rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 57 Cal.Rptr.3d 156 and Tsemetzin v. Coast Federal Savings And Loan Association (1997) 57 Cal.App.4th 1334, 67 Cal.Rptr.2d 726. In Metz, the Court observedthat: When anobligation of liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period. The continuing accrual rule has been applied in a variety of actions involving the obligations to make periodic payments under California statute or regulations. Metz, supra, 149 Cal.App. at 418. [emphasis added] The Metz court, nonetheless, declined to apply continuing accrualto the facts before it because Metz’s action did not involve recurring obligations, but rather fraudulent statements arising out of a single insurance claim resolved prior to the limitations period. Id. In Tsemetizin, the Court held that periodic monthly paymentscalled for by a lease agreementcreate severable contractual obligations where the duty to make each rental paymentarises independently and the statute begins to run from the time performance of each is due. Tsemetzin, supra, 57 Cal.App.4th at 1344. Since defendant’s obligation to pay increased rent commenced each month when such payment was due and not paid, plaintiff was permitted to recoverall unpaid rental installmentsfalling within the four-year statutory period. Id. Like traditional principles governing the statute of limitations, the -14- _ continuing accrual doctrine examines the sametriggering events: the act and resulting injury. As Justice Rubin stated, continuous accrual “Acknowledges the reality that similar acts can continue to occur: one can breach the same contract over and overagain in substantially the same manner. Earlier conduct is not extendedbut repeated.” Slip Opn.- Dissent, p. 5. [emphasis in original] Like any statute of limitations, it gives plaintiff a reasonable time to seek redress for his inflictions and holds defendant accountable each timeit acts. Thus, continuous accrual is nothing more than the normal application of a statue of limitations measured against a series of acts, rather than one individualact. B. Does Plaintiff's Earlier Discovery OfThe Wrong Outside OfThe Limitations Period Bar Bringing Claims Arising From Conduct Within The Limitations Period? The Court ofAppeal’s pronouncementpresents a paradox. On the one hand, the Second District disapproves of delaying accrual of a UCL cause of action until plaintiffhas knowledge ofthe wrongful act giving rise to a claim. Onthe other hand,plaintiff's knowledge will cut short accrual and extinguish any UCLclaim arising from a wrongfulactafter the statutory period runs upon acquiring that knowledge. Assuming arguendo that only defendant’s conduct governs the accrual of a UCL cause of action, then knowledge should be irrelevant to calculating the statute of limitations - neither improving, nor -15- impeding a plaintiff's access to the courts. In addition, it is speculative ofthe Court of Appeals to impute plaintiff's knowledge of a single wrongful act, coupled with the decision not to seekjudicial recourse, as consent to unforseen repeated wrongful acts occurring more than four years into the future. According to the Second District, however, plaintiff's discovery of wrongdoing will serve akin to a statute ofrepose: once four years has run since discovering conduct givingrise to a claim, future offending conduct will not be actionable and resulting injury will be without remedy. Relying on Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 891, 117 Cal.Rptr.2d 331, the Second Districtstates that “the [UCL] cause of action accrues when the defendant’s conduct occurs, not whenthe plaintiff learns about the conduct.” Slip Opn., p. 4 (quoting Snapp & Associates, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 891). In application, however, the Second District explicitly reasoned that Plaintiff’ s cause ofaction accruedat the time of the initial wrongdoing, irrespective of subsequent repeated bad acts, because Plaintiff had knowledge of the wrongdoing. Slip Opn., p. 9. The Second District found it imperative that “Appellant Anew ‘shortly after’ he entered into the second contract in February 2002 of Canon’s alleged overcounting of copies and overcharging for them” and “Here, once appellant was aware he was being ‘overcharged’ for test -16- copies and that his protests to Canon were futile, he could and should have taken diligent action.” Slip Opn., pp. 9 and 11-12. [emphasis added] In reaching its conclusion that a cause of action for ongoing conduct accrues at the time of commencement, the Second District found Snapp controlling. Slip Opn., p. 8. But Snapp concerns the delayed discovery rule, | not continuing violation or continuing accrual doctrines. Snapp, supra, 96 Cal.4th 884 (discussing delayed discovery, but no where using the terms “continuing violation” or “continuing accrual.”); Slip Opn.-Dissent, p. 8 (stating that Snapp begins and ends with a rejection of equitable tolling and delayed discovery and fails to discuss continuing violation or continuous accrual). The case ofBetz v. Trainer Wortham & Co.. Inc. (9" Cir. 2007) 236 Fed. Appx. 253 is instructive. In Betz, the Ninth Circuit stated: The defendants claim that Snapp [citation omitted] stands for the proposition that the continuing violation doctrine does not apply to unfair business practices claims under California law. However, it does not appear that the court in Snapp directly considered the argumentthat the plaintiff's claim was not time- barred because it alleged multiple, continuous acts, some of whichoccurred inside the limitations period. 236 Fed. Appx.at 256, fn. 4. Thus, the Ninth Circuit also did not find Snapp controlling when presented with a UCLstatute of limitations defense in a continuous misrepresentations case, some of whichfell within the four-year period. The conductat-issue in Snappwas a former employee and competitor’s -17- alleged misappropriation oftrade secrets and client information that created a dispute over commissions earned from insurance brokered on those accounts. The “ongoing” wrongful conductthat is referred to in Snapp is “solicitation of[Snapp’s] former employees and customers”- not the collection ofrecurring fees. Snapp, supra, 96 Cal.App.4th at 892. Significantly, the Snapp court describes the wrongdoingas follows: “It is alleged in the cause of action for misappropriation of trade secrets that the misappropriation of client information occurred in May 1993.” Id. [emphasis added] The importance is that the Snapp court viewed the cause of action as accruing only once, in 1993, even as it acknowledged the continuing damages in lost commissions flowing therefrom. To the extent the Snapp court was measuringthe statute of limitations for a cause of action that accrued only once, it is in no way relevant to Plaintiff's discussion of a cause of action subject to multiple accrual. The most that can be said is that the Snapp case is a “delayed discovery”decision, and becausePlaintiffis not relying on delayed discovery - or any exception to the general rule of accrual of a cause of action - it is irrelevant. Analogizing to Snapp, the Second District uses “knowledge” to cut short accrual and defeat claims that otherwise would be timely withoutit. Specifically, the Second District used Plaintiff's knowledge ofbeing charged -18- for Test Copies in February 2002to bar otherwise timely UCL cause of action for thirteen (13) instances of alleged misconduct falling within the statutory period. In short, the Second District has pronounced that the statutory clock for a UCL claim begins to run when the misconduct and injury occur or when Plaintiff learns of the misconduct - whichever happensfirst andirrespective ofthe later continuing misconduct. 2. The Court Of Appeal’s Decision Reflects Confusion In The Courts About The Role A Plaintiff's Knowledge Should Have, If Any, In Applying The UCLStatute Of Limitations Although the SecondDistrict rejects use ofthe “delayed discovery”rule to extend the statute of limitations on a UCLclaim,it proposes essentially to use a plaintiff's discovery to shorten the statute of limitations. The Court of Appeal’s decision is unique inthatit is a sort of reverse “delayed discovery” rule. Unwilling to recognize that a plaintiff s inability to discover wrongdoing “extends” the running of the statutory clock, the Second District uses a plaintiff's discovery to “cut short” the running ofthe statutory clock. Pursuant to this theory, once four years after learning ofviolator’s wrongfulact lapses, future misconduct is forever immunized. Typically, the discovery rule is a doctrine used byplaintiffs to save claims in which the conduct occurred outside the statutory time frame. Asthis Court explained, -19- Generally speaking, a cause of action accruesat ‘the time when the cause of action is.complete with all of its elements.’ An important exception to the general rule of accrual is the ‘discovery rule,’ whichpostponesaccrual ofa cause ofaction untilplaintiffdiscovers, or has reason to discover, the cause of action. Grisham v. Philip Morris U.S.A.., Inc. (2007) 40 Cal.4th 623, 634, 54 Cal.Rptr.3d 735. [emphasis added] The rationale for the delayed discovery rule is that, in certain circumstances where plaintiffs, through no fault of their own, are unaware of defendant’s misconduct, then plaintiffs should not be penalized and barred from vindicating their rights. Delayed discovery provides an exception suchthat, for misconduct occurring outside ofthe statutory time period and for which plaintiff was unaware, the start of the clock is deferred until plaintiff gains actual knowledge (or reasonable notice) of defendant’s wrongdoing. This Court previously recognizedthe current split in appellate authority regarding use ofthe delayed discovery rule to the UCL. See, Grisham,supra, 40 Cal.4th at 635, fn. 7, 54 Cal.Rptr. 3d 735 (observing that the discovery rule is “currently not settled under California law.”)’ Recently, in Brobergv. Guardian Life Ins. Co. OfAmerica (2009) 171 Cal.App.4th 912, the Second “In Grisham, the Court assumedfor purposesofits discussionthat the delayed discovery rule applies to unfair competition claims, but noted the appellate split citing, Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 891, 117 Cal Rptr.2d 331 (discovery rule does not apply) and Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1295, 119 Cal.Rptr.2d 190 (discovery rule “probably” applies). Grisham, supra, 40 Cal.4th at 635, fn.7, 54 Cal.Rptr.3d 735. -20- District tackled the delayed discovery issue and heldthat a section 17200 cause of action premised on fraudulent conduct starts to run only when a reasonable person would have discovered the factual basis for a claim. Broberg, supra, 171 Cal.App. 912, 921, 90 Cal.Rptr.3d 225. In summary, the delayed discovery doctrine is a conflicted rule which may supplement, but does not govern traditional accrual standards. Moreover, a plaintiffs discovery has generally been usedtotoll the statute of limitations on earlier wrongful acts to enable a plaintiffto seek recovery for them. Here, however, where Plaintiff is not even seeking to recover for wrongful acts occurring outside ofthe statutory period, the Second District has employed an unprecedented sort of reverse discovery rule against plaintiff to preclude recovery entirely. California public policy affirms the fairness of allowing individuals to bring suit where they remain victims of unfair business practices. The UCL does not proscribe specific acts, but broadly prohibits “any unlawful, unfair or fraudulent business act or practice” and being framed in the disjunctive, a business act or practice need only meet one of the three criteria to be considered unfair competition. Daugherty v. American HondaMotor Co., Inc. (2006) 144 Cal.App.4th 824, 837, 51 Cal.Rptr.3d 118. A UCL action is equitable in nature; damages cannot be recovered. Under the UCL,prevailing -21- plaintiffs are generally limited to injunctive relief and restitution. Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144, 131 Cal.Rptr.2d 29. This distinction reflects the UCL's focus on the defendant's conduct, rather than the plaintiff's damages, in service ofthe statute's larger purpose of protecting the general public against unscrupulous business practices. Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442, 453, 153 Cal.Rptr. 28. Given that knowledge is not a required element, using plaintiff's discovery ofwrongdoing to bar a UCL causeofaction as untimely would be antithetical to its purpose.° Recently, the Fourth District examined the UCL limitations period in a case where appellant claimed the UCL cause of action accrued not in 2003 when she received an invalid Notice of Intent to Dispose of Motor Vehicle (“NOI”), but rather in 2007-2008 when creditors sought deficiencyjudgment against her. Salenga v. Mitsubishi Motors Credit OfAmerica,Inc. (2010) 183 Cal.App.4th 986, 996, 107 Cal.Rptr.3d 836. In Salenga, appellant also disavowed reliance on delayed discovery or equitable tolling doctrines and alleged that she did not have a right to sue until an adverse action was brought against her. Id. at 997. Significantly, the creditors responded: ° Since the UCL is an equitable doctrine, if a court believes a plaintiff sat on his or her rights, other equitable considerations and defenses, such as laches remain available, if properly asserted. Barndt v. County of Los Angeles (1989) 211 Cal.App.3d 397, 403, 259 Cal.Rptr. 372. -22- The gist of the cross-complaint is the failure to send a proper NOI. The UCL cause of action accrued upon thefirst loss of money orproperty as a result and does not re-accrue uponlater harm arising from the same wrong. Id. at 995. [emphasis added] The Fourth District rejected the argumentthat the only relevant time period for assessing accrual of appellant’s statutory cause of action is 2003, when the defective NOI was sent. Id. at 1001. Having found that appellant demonstrated the possibility of cure and should be allowed to re-plead, the Fourth District reversed the trial court’s denial of leave to amend. Id. at 1002- 1003. Practically speaking, if the discovery rule could be used against plaintiffs, then a defendant could avoidliability for bad acts or practices that extend beyond fouryears so long as its conduct was not hidden. Assuming an employee worked off-the-clock for his employer during the entirety of his employment, but never received wagesforall hours worked, a savvy defendant would arguethat the employee learned ofhis claims whenhereceivedhis first pay check. If that same employee waits until he is terminated six years later to assert claims for his off-the-clock hours, his claims will be barred as untimely and he will be unable to recover unpaid wages- evenfor those very lastpay checks which clearlyfell within the statutory timeframe. If a plaintiff's discovery of a wrong outside the statutory period will serve to extinguish otherwise actionable claims arising during the statutory -23- period, then the statute of limitations will insulate violators from suit simply because they have committed multiple violative acts continuously and notoriously for more than four years. Certainly, such an interpretation would be inequitable and turn the intent behind having the UCLstatute oflimitations on its head. CONCLUSION The Court should grant review to clarify that the traditional rules of accrual apply to the UCL statute of limitations. In a case that disavows delayed discovery and tolling doctrines, the Court of Appeal’s decision presents a very real risk that knowledge will be used against plaintiffs to extinguish future claims arising from same repeated discrete acts and grant impunity to defendants who escapethestatutory period. Petitioner respectfully asks the Court to grant review to resolve important questions and clarify conflicting decisional authority concerning the ability ofCalifornia consumers to vindicate their rights under the UCL. Date: July 29, 2010 Respectfully submitted, WESTRUP KLICK LLP G 4 wihLL— :ep Jénnifer L. Connor Attorneys for Plaintiff, Appellant, and Petitioner Jamshid Aryeh -24- CERTIFICATE OF WORD COUNT (Cal. Rules of Court, Rule 8.504(d)(1)) I, Jennifer L. Connor, an attorney at law duly admitted to practice before all the courts ofthe State of California and an associate attorney ofthe law offices of Westrup Klick, LLP, attorneys of record herein for plaintiff, appellant, and petitioner Jamshid Aryeh, herebycertify that this Petition For Review document (including the memorandum ofpoints and authorities, headings, footnotes, and quotations, but excluding the tables of contents and authorities, and this certification) complies with the limitations of Rule of Court 8.504(d)(1) in thatit is set in a proportionally-spaced 13-point typeface and contains 5,606 words as counted by the Corel Word Perfect version 10 word-processing program used to generate this document. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed July27, 2010 in Long Beach,California. Lf2c LE /Jennifer L. Connor -25- o O O N D O o O F B W O D H = P O DP R R N D N D N P D D N PP O N O B e o e w d B S S B R B R D e e k o n O D o O R h W H NO Y | = OD O O O D A N D W O O F P W O N Y | = O PROOF OF SERVICE At the time of service | was over 18 years of age.and not a party to this action. My businessaddressis 444 West Ocean Boulevard, Suite 1614, Long Beach, California 90802- 4524. On July 29, 2010, i served the following documents described as PETITION FOR REVIEW. | served the documentsonall interested parties, as follows: Kent Schmidt Dorsey & Witney LLP 38 Technology Drive, Suite 100 Irvine, CA 92618-5310 Attorney for Canon Business Solutions Richard H. Silberberg Robert G. Manson DORSEY & WHITNEY LLP 250 Park Avenue New York, New York 10177 Attorney for Canon Business Solutions ConsumerProtection Division Los Angeles District Attorney's Office 201 North Figueroa St., Suite 1600 Los Angeles, CA 90012 Clerk, Los Angeles Superior Court 111 North Hill Street, Dept. 24 Los Angeles, California 90012 Linda Guthmann Krieger KRIEGER & KRIEGER 249 E. Ocean Boulevard, Suite 750 Long Beach, California 90802 Co-Counsel for Jamshid Aryeh Appellate Coordinator Office of the Attorney General ConsumerLaw Section 300 S. Spring Street Los Angeles, CA 90013-1230 Clerk of the Court of Appeal Second Appellate District, Division 8 300 South Spring Street, Second Floor Los Angeles, California 90013 The documents were servedbythe following means(specify): a. By United States Mail. | enclosed the documents in a sealed envelope or package addressedto the persons at the addresseslisted above. | placed the envelope for collection and mailing, following our ordinary businesspractice. | am readily familiar with this business’s practice for collecting and processing correspondencefor mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of businesswith the United States Postal Service, in a sealed envelope with postage fully prepaid. | am employedin the county were the mailing occurred. The envelope or package was placed in the mail at Long Beach, California. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: July 29, 2010 ly JAMES VELOFF Filed 6/22/10 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT JAMSHID ARYEH, B213104 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC 384674) V. CANON BUSINESS SOLUTIONS,INC., Defendant and Respondent. APPEAL from a judgmentofthe Superior Court of Los Angeles County, Robert L. Hess, Judge. Affirmed. Westrup Klick, R. Duane Westrup, Mark L. Van Buskirk, Jennifer L. Conner; Krieger & Krieger, Linda Guthamnn Krieger and Terrence B. Krieger for Plaintiff and Appellant. Dorsey & Whitney, Kent J. Schmidt, John P. Cleveland, Richard H. Silberberg and Robert G. Manson for Defendant and Respondent. KR KR KK Jamshid Aryeh appeals from the order (judgment) of dismissal of his second amended complaint brought under the Unfair Competition Law (UCL), Business and Professions Code section 17200 et seq.! Thetrial court sustained respondent Canon Business Solutions, Inc.’s (Canon) general demurrer without leave to amend, ruling that the allegationsfailed to state a cause of action and that the claim is barred by laches, the applicable statute of limitations set forth in section 17208,” and the doctrines ofres judicata and collateral estoppel. Appellant contends the continuing violations doctrine extended the statute oflimitations, his action is not barred by laches, he adequately pleaded a UCLclaim,and neither res judicata nor collateral estoppel applies. We hold the action is barred by limitations, and we therefore affirm. FACTS? Canon sells and leases copiers, scanners, printers and other products to customers. In November 2001, appellant, as an individual and doing business as ABC Copy & Print, entered into an agreement with Canonto lease a black and white copier. Under the agreement, appellant agreed to pay a monthly fee in return for a monthly copy allowance, and also agreed to pay an additional excess copy charge for each additional copy beyond the monthly allotment. In February 2002, appellant entered into a second lease agreement with Canon tolease a color copier under similar terms. Shortly after entering into the copy rental agreements, appellant began noticing that meter readings taken by Canon’sfield service personnel did not appear to accurately reflect the numberof copies actually made on appellant’s leased copiers. Appellant 1 All further statutory references are to the Business and Professions Code unless indicated otherwise. 2 Section 17208provides,in pertinent part: “Any action to enforce any cause of action pursuantto this chapter shall be commenced within four yearsafter the cause of action accrued.” 3 Onreview of the sufficiency of a complaint against a general demurrer, wetreat the demurrer as admitting all properly pleaded material facts, but not contentions, deductionsor conclusions offact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) Wealso consider matters subjectto judicial notice. (Jbid.) asked Canon numeroustimes, orally and in writing, to repair the copiers and to take accurate readings, to no avail. Consequently, appellant began keeping his own recordsof the number of copies made on each machine and determined he was being charged for “test” copies made when Canonservice personnelrepaired or serviced the machines. Despite appellant’s attempts to have Canon correct the “excessive” copying charges, Canonfailed to reimburse appellant for such overcharges and also charged him late fees. PROCEDURAL HISTORY On January 31, 2008, appellantfiled this suit on behalf of himself and similarly situated personsresiding in the State of California who entered into copy rental agreements with Canon and who were overcharged for copies from four years preceding the action to the date ofjudgment. The complaint essentially alleged the foregoing facts and contained a single cause of action for unfair competition under the UCL. Appellant . alleged that Canon knew or should have known it was charging appellant for excessive copies on the leased machines. Appellant sought injunctiverelief, restitution and attorney fees. Canon generally demurred to the complaint andasserted that the action was barred on various grounds, including the four-year statute of limitations under section 17208. Thetrial court sustained the general demurrer. The court ruled appellant had notice of the problem in at least 2002, after the secondlease, about six years before he filed this action and well after the four-yearstatute of limitations had expired. Although the court did not believe appellant could plead aroundthelimitations, the court granted appellant leave to amend. Appellant filed a first amended complaint, adding an allegation that on various dates between February 2002 and November 2004, Canon’sservice personnel ran “test copies” during service or maintenancecalls. The first amended complaint omitted the reference to the time appellant discovered the alleged overcharging. Specifically, in paragraph 14, the original complaint alleged, “Shortly after entering into the copy rental agreements with [Canon], [appellant] began to notice that the meter readings taken by [Canon’s] field servicemen did not appearto reflect the accurate numberof copies... .” (Italics added.) Thefirst amended complaint substituted a new paragraph 14 that, amongother things, omitted the word “shortly” and changedthe allegation to read, “After entering into the copy rental agreements with [Canon], the products leased by [appellant] required service and/or maintenance.” (Italics added.) Appellant further alleged that the test copies run by Canon’s service personnel caused appellant to exceedthe total allowable copies and required appellant to pay additional fees to Canon. Appellant asserted that, from time to time during the four-year period priorto the filing of his complaint, Canon’s service personnel “made from 50 to 900 Test Copies during various service and/or maintenancecalls.” The amended complaintlisted 17 instances during the period commencing February 6, 2002, and ending November 16, 2004, in which Canon’s service personnel made test copies. Appellantalleged, “Each time [Canon’s] servicemen ran Test Copies . . . was independentof any prior occasions when [Canon’s] servicemen ran Test Copies” and each date “resulted in a separate and distinct violation giving rise to separate anddistinct damage.” Canon generally demurred to the amended pleading. Thetrial court again sustained the demurrer and granted appellant leave to amend a second time on counsel for appellant’s representations that the payments obtained by Canon violated the written agreements between the parties. The court stated, “[t]he statute of limitations and standing to seek injunctiverelief are issues, and I want to knowif [appellant] is now a lessee of these Canon products.” The court directed appellant’s counselto “put in whatever you think you can do, and we’ll address this squarely when we comeback.” Appellant filed a second amended complaint, in which he alleged that “[a]s of the date ofthe filing of this second amended complaint, [appellant] is not now a lessee of Canon products.” Forthe first time, appellant attached copies of the November 2001 and February 2002 contracts. Heasserted that neither contract authorized a charge fortest copies. Canoninterposed a general demurrer on numerous grounds,includingthe statute of limitations, and requested that the court sustain the demurrer without leave to amend. Canon argued that the second amended complaint revealed even more defects in appellant’s claim. For example, the written agreements appellant attached as exhibits establishedfor the first time that no provision in the contracts required Canonto provide a credit for test copies. The attached agreements also showedthat each agreement expired after 60 months. Thus, no injunctive relief wouldlie as neither agreement was currently in effect. Because appellant took no actionto halt the alleged violation ofhis rights while the agreements werein effect, Canon also argued his claims were barred by laches. Thetrial court determined the second amended complaintfailed to dispel Canon’s objections based on the statute of limitations. The court stated, “[t]here is no continuing practices doctrine that applies here” and “no equitable tolling that I can see that could possibly apply[;] [under section] 17200[,] when the act occurs the clock starts, and here we haveanallegation that there was actual knowledge in February of 2002in an earlier pleading ... , and you have been given the chance to amendto addressthis if it was possible.” After further argumentby both sides, the court indicated it had not changedits mind. Appellant’s counsel requested that“[i]f the court is inclined to sustain the demurrer without leave [to amend], I would ask the court to do it on the statute of limitations ground because. . . there needs to be someclarity, and I would like the opportunity to pursuethat.” The court concluded appellant was “concededly”aware of his claim “almost six years in advance ofthe suit being filed” and sustained the demurrer without leave to amend. This timely appeal followed. STANDARD OF REVIEW Whena demurreris sustained, we ascertain whether the complaintstates facts sufficient to constitute a cause of action. (Blank, supra, 39 Cal.3d at p. 318.) “[W]hen [a demurrer] is sustained without leave to amend, we decide whetherthere is a reasonable possibility that the defect can be cured by amendment:if it can be, thetrial court has abusedits discretion and we reverse; if not, there has been no abuse ofdiscretion and we affirm.” (/bid.) The burden of proving such reasonable possibility rests squarely on the appellant. (Schifando v. City ofLos Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).)* DISCUSSION I. Four-year Statute ofLimitations Appellant does not dispute that the four-year statute of limitations prescribed in section 17208 applies to his action. However, appellant asserts the statutory clock not only starts at the time ofthe first occurrence -- i.e., the time an allegedly offending act was committed and caused injury -- but rather “re-starts” each time the defendant invades the plaintiff's rights and causes injury. Specifically, appellant argues that a doctrine of continuing violations should be applied to violations of the UCL. Wereject appellant’s contention. His UCL cause of action accrued more than four years before hefiled his action, and the continuing violation doctrine does not applyto the circumstancesofthis case. A. Accrual A cause ofaction for unfair business practice under section 17200 must be commenced “within four years after the cause of action accrued.” (§ 17208; see also Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178-179 (Cortez); Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 364; see 13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 128, p. 448.) The cause of action accrues whenthe defendant’s conduct occurs, not whentheplaintiff learns about the conduct. (Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 891 (Snapp) [““discovery rule,’ which delays accrualof certain causes of action until the plaintiff has actual or constructive knowledge offacts givingrise to the claim, does not apply” to causes of action under § 17200].) When the allegations regarding a defendant’s conduct covers a period oftime, the cause of action accruesat the timeofthe initial conduct. (Id. 4 Wediscuss additional standards of review below in contextofspecific issues. at p. 892 [complaint alleging wrongdoing that began more than four years before action commenced and was “on-going” barred by § 17208].) In Snapp, the plaintiff insurance broker hired a salesman whobrought with him a numberofclient accounts (TRG accounts). (Snapp, supra, 96 Cal.App.4th at p. 887.) In February 1993, the plaintiff learned that the salesman had deposited commissions earned on TRG accounts into his own bank account. Plaintiff confronted the salesman and terminated his employment in March 1993. (/bid.) Soonthereafter, plaintiff began receiving notices that defendant was acting as broker for the terminated salesman on some TRG accounts. Plaintiff caused a “cease and desist”letter to be sent to the defendant in May 1993. (/d. at pp. 887-888.) Plaintiff then pursued the salesman for damagesbutits efforts were thwarted by his bankruptcy proceedings. Over four years later, in August 1997, plaintiff filed a complaint against the defendant including a claim under the UCL. (d. at p. 889.) The trial court in Snapp determinedplaintiff's UCL action was time-barred. (Snapp, supra, 96 Cal.App.4th at pp. 889.) The appellate court agreed, holding that section 17208 required the action to be commencedwithin four years after the cause of action accrued. (Snapp, at p. 891.) “Thus, ‘the statute begins to run . . irrespective of whetherplaintiff knew ofits accrual, unless plaintiff can successfully invoke the equitable tolling doctrine.’” (/bid.) The trial court rejected the plaintiffs claim that the statute did not commence running until the defendant purchased the TRG accounts from the salesman in February 1994. The court notedthe first amended complaint had alleged that defendant’s solicitation of plaintiffs former employees and customers “‘started in or about May 1993, and is on-going.” (Id. at p. 892, italics added.) Theplaintiff thus knew of a potential claim against the defendant more than four years beforeit filed its complaint. (/bid.) The court held the claims barred by the UCL four-year statute of limitations as defendant’s wrongful conduct, although allegedly “ongoing,” began and was knownto the plaintiff more than four years prior to the action’s commencement. (Ibid.) Wefind Snappto be controlling.5 The UCL claim asserted in Snapp was based uponessentially the same type of conductat issue in the present case: the allegedly wrongful collection of fees on a recurring basis. In Snapp, the fees at issue were recurring insurance premiumscollected over a period of time beginning outside the limitations period and continuing into the limitations period. In the instant action, the fees at issue are recurring “excess copy charges” imposed overa period of time beginning outside the limitations period and continuing into the limitations period. The court in Snapp held that the very first allegedly improper brokering charge, which became knowntotheplaintiff soonafterits imposition, commenced the running ofthe four-yearstatute of limitations, barring the plaintiffs claim even though plaintiff asserted that the imposition of such charges was “ongoing.” (Snapp, supra, 96 Cal.App.4th at pp. 891-892.) Here, appellant’s initial complaint alleged that appellant began to notice that the meter readings taken by Canon’s field service personneldid not appearto reflect the accurate numberofcopies “[s]hortly after” appellant entered into the copy rental agreements. Appellant thus admitted in the initial complaint he knew ofthe alleged inaccurate readings and overcharge about February 2002,six years before filing his lawsuit. Appellant omitted this allegation in his subsequent pleadings and offered no explanation for the omission nor made any showing he hadsince obtained further facts indicating his prior allegation was inaccurate. Whena pleading containsallegations destructive of a cause of action, the defect cannot becuredin later filed pleadings by simply omitting the allegations without explanation. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) The “““original defect infects the subsequent pleadingso as to renderit 99999vulnerable to a demurrer.””” (/d. at p. 743.) Theplaintiff is bound by his prior admission 5 Appellant asserts that Snapp’s holding is relevant only to the issue whether the delayed discovery rule should be applied to UCL claimsand has no relevanceto the issue whether a cause of action is subject to “continuing violations” or “multiple accrual.” We do notinterpret Snapp’s holding so narrowly. absent a showing of inadvertence or mistake or discovery of new facts justifying an amendmentofthe complaint. (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.) Resolution of the defense of statute of limitations is normally a question of fact. However, when the uncontradicted facts are susceptible of only one legitimate inference, the court may determine the matter as a question of law. (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112; Snapp, supra, 96 Cal.App.4th at pp. 889-890.) Such a rule serves the fundamental purpose underlying the statute of limitations, namely, to give defendants reasonable repose and to protect parties from having to defend stale claims. (Jolly, at p. 1112.) In the present case, the uncontradicted facts are susceptible of only one legitimate inference: appellant knew “shortly after” he entered into the second contract in February 2002 of Canon’s alleged overcounting of copies and overcharging for them. B. No Continuing Violation Appellantcites no legal authorities justifying his assertion that the continuing violations doctrine applies to UCL claims. He claimsapplication of the continuing violations doctrine to a “pure UCL consumerlawsuit” is an issueoffirst impression and it waserror for thetrial court not to apply the doctrine to save his UCL claim. In making this argument, appellant cites a smorgasbord offederal and state law authorities that are factually andlegally inapposite, including authorities that do not involve the continuing violations doctrine. Noneofthe authorities appellant cites compels us to apply the continuing violations doctrine to salvage his claim. In Richards v. CH2MHill, Inc. (2001) 26 Cal.4th 798 (Richards), our Supreme Court discussed the continuing violations doctrine in context of the statute of limitations underthe Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA). Quoting a leading treatise, the Supreme Court observed that the continuing violation doctrine is “‘arguably the most muddledarea in all of employmentdiscrimination law.’” (Richards, at p. 813, quoting 2 Lindemann & Grossman, EmploymentDiscrimination Law (3d ed. 1996) p. 1351.) The Supreme Court noted that the continuing violation doctrine is muddled becauseit “refers not to a single theory, but to a numberofdifferent approaches,in different contexts and using a variety of formulations, to extending the statute oflimitations in employmentdiscrimination cases.” ([bid.) The Supreme Court identified four different approaches followed by state and federal courts in applying the continuing violation doctrine. (Richards, supra, 26 Cal.4th at pp. 813-817.) The Supreme Court concluded that courts applying the continuing violation doctrine “have tended toward a broader view of that doctrine when the cause of action involves ongoing harassmentor ongoing failure to accommodate disability.” (/d. at p. 817.) In the case of alleged FEHA violations, the Supreme Court determined the one-yearstatute of limitations should be “‘construed liberally’” in orderto “‘carry out the purposes of the FEHA to safeguard the employee’s right to hold employment without experiencing discrimination.’” (/d. at p. 819.) Further, the FEHA limitations period “should be interpreted so as to promote the resolution of potentially meritorious claims on the merits.’” (bid) The Richards court declared: “we do not believe the FEHA statute of limitations should be interpreted to give a disabled employee engagedin the process of seeking reasonable workplace accommodation or ending disability harassment two unappealing choices: on the one handresigning and bringing legal action soonafterthe first signs that her rights have been violated, or on the other hand attemptingto persist in the informal accommodation processandrisk forfeiture of the right to bring such an action altogether. Nor. . . is the third choice--retaining employment while bringing formallegal action against the employer--a viable option for many employees.” (Richards, supra, 26 Cal.4th at pp. 820-821.) The court observed that there is good reasonto view a failure over time to reasonably accommodate a disabled employee asa single course of conduct, as reasonable accommodation is often an “ongoing process” rather than a single action. (/d. at p. 821.) Moreover, in cases of employmentdiscrimination or harassment, a single instance of an employer’s failure to accommodate that may seem “trivial” in isolation can take on greater significance andinflict greater injury when viewedas “one ofa series of such failures.” (dd. at p. 822.) The court therefore held that when an employer engages 10 in a continuing course of unlawful conduct under the FEHA byrefusing reasonable accommodation of a disabled employee or engaging in disability harassment not amounting to a constructive discharge, the statute of limitations begins to run, “not necessarily when the employeefirst believes that his or her rights may have been violated,” but either when the course of conduct is brought to an end or when the employee is on notice that further efforts to end the unlawful conduct will be in vain. (/d. at p. 823.) This court applied the continuing violations doctrine in Alch v. Superior Court (2004) 122 Cal.App.4th 339 (Alch), in whichthe plaintiffs filed a series of class action lawsuits on behalf of television writers against studios, networks andtalent agencies for age discrimination under the FEHA.® We acknowledgedin Alch the type of “continuing violation” comprising a “systematic, companywide corporate policy of discrimination againsta protected class”that began prior to and extendedintothelimitations period. (Alch, supra, 122 Cal.App.4th at pp. 369, 374-376.) Wefind nocorrelation between appellant’s claim seeking recovery for individual instances in which he purports to have been wrongfully charged for “test” copies and the plaintiffs’ claims in Richards and Alch, which were not based upon specific acts of alleged misconduct, but instead upon on-going, accumulative harassmentin the case of Richards or a broad and longstanding corporate policy of employmentdiscrimination in the case ofAlch. (Richards, supra, 26 Cal.4th at p. 822; Alch, supra, 122 Cal.App.4th at pp. 375-376.) Here, once appellant was aware he was being “overcharged”fortest copiesandthat his protests to Canon were futile, he could and should have taken diligent 6 Appellant notes A/ch included claims under the UCL. In Alch, we foundthat the trial court erred in ruling plaintiffs were required to show potential competitive harm or consumerdeceptionto state a claim under the UCL. (Alch, supra, 122 Cal.App.4th at pp. 400-403.) But we heldthetrial court properly sustained demurrers to UCL claims becausetheplaintiffs were seeking nonrestitutionary backpay and the court had no authority to award such damagesin the first instance. (Id. at p. 408.) Alch did not discuss the continuing violation doctrine with respect to the statute of limitations under the UCL. (Ud. at pp. 400-409.) 11 action. He could not wait for years until the agreement expired while more “overcharges” accumulated before filing a complaint. Only one reported California case to our knowledge has extended the continuing violations doctrine outside the employment law context. In Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal-App.4th 324 (Komarova), a plaintiff who had been mistakenly and repeatedly harassed by a debt collection agencyasserted a claim under the Robbins-Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788et seq.). The court found that the defendant’s statute of limitations defense was overcome by the continuing violation doctrine, permitting recovery “‘for actions that take place outside the limitations periodif these actionsare sufficiently linked to unlawful conduct within the limitations period.’” (Komarova, supra, at p. 343, quoting Richards, supra, 26 Cal.4th at p. 812.) The court, quoting Joseph v. J.J. MacIntyre Companies, L.L.C. (N.D. Cal. 2003) 281 F.Supp.2d 1156 (Joseph), notedthat “‘[t]he key is whether the conduct complained of constitutes a continuing pattern and course of conduct as opposedto unrelated discrete 399 acts.”” (Komarova, supra, at p. 343.) Citing a close analogy between “‘a pattern of debtor harassmentconsisting of a series of calls’” and a hostile work environment, the court explained that, as with hostile work environment cases, debtor harassment claims “by ““[t]heir very nature involve[] repeated conduct” rather than “discrete acts”’ ....” (Komarova, supra, 175 Cal.App.4th at p. 344, quoting Joseph, supra, 281 F.Supp.2d at p. 1160.) Routinely billing and collecting for “test” copies is not the type of harassing and egregious conductthe continuing violation doctrine is designed to deter. No comparable policy considerations compel applying the continuing violations doctrine to violations of the UCL. (Cortez, supra, 23 Cal4th at pp. 173.) The UCLis not an “all-purpose substitute” for a tort or contract action. (/bid.) The Legislature has expressed a goal that the UCLbe “a streamlined procedure for the prevention of ongoing or threatened acts of unfair competition.” (/d. at pp. 173-174.) A claim for recovery of past damagesis not within the contemplation of the UCL. 12 The statute of limitations on a UCL action begins to run upon accrual unless equitably tolled. (Snapp, supra, 96 Cal.App.4th 884, 891.) Appellant does notassert equitable tolling applies to his action, nor does he allege any facts establishing the doctrine applies. 2. Leave to Amend Appellant has not informedthis court of any new facts or suggested how he could amend his complaint to overcomethestatute of limitations. Nor did he make any such showingin the trial court. Thus, the court did not abuse its discretion in sustaining the demurrer without leave to amend. (Schifando, supra, 31 Cal.4th at p. 1081.) DISPOSITION The judgmentis affirmed. Respondent Canonis to recover costs on appeal. FLIER,J. T concur: LICHTMAN,J.* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuantto article VI, section 6 of the California Constitution. 13 ARYEH v CANONBUSINESS SOLUTIONS— B213104 Rubin,J. — Dissenting: I respectfully dissent. I agree with the majority’s conclusion that the accrual date of appellant’s claim dictates whetheror not his complaintis barred by the statute of limitations. I also agree that the case does notrest on principles of delayed discovery or equitabletolling, doctrines that appellant expressly disavows.! J part with the majority because, in my view, there are several claims alleged in the operative second-amended complaintthat do not appear on the face of the pleading to be barred by the statute of limitations even if othersare legally stale. Accordingly, the demurrer should have been overruled. The majority correctly describes the chronology of complaints, demurrers and amendments, the last of which producedthetrial court’s ruling sustaining the demurrerto the second-amended complaint without leave to amend. Briefly, the amendment process achievedits salutary purposeof forcing appellant to allege facts concerning when the alleged wrongs took place. By the second-amended complaint, appellant had alleged that someofthe unfair business practices took place as early as February 6, 2002, and some as late as November 16, 2004. Theparties agree that there is a four year statute of limitations for Unfair Competition Law (UCL)claims. (Bus. & Prof. Code, § 17208.) Appellant acknowledges that any allegedly unauthorized copying charges that were debited more than four years beforethe filing of the original complaint on January 31, 2008, are barred by thestatute of limitations. He contends those charges imposed on him after January 31, 2004 — some 4628 unauthorized test copies according to the complaint — 1 The Supreme Court has not resolved the question of whether delayed discovery applies to UCL claims. (Grisham v. Philip Morris, U.S.A., Inc. (2007) 40 Cal.4th 623, 639, fn. 7; see Broberg v. Guardian Life Ins. Co.ofAmerica (2009) 171 Cal.App.4th 912, 920.) constitute UCL violations that occurred within the four year period and are not barred by the statute of limitations. The majority’s opinionthat the statute of limitations defeats appellant’s entire action is predicated on two conclusions: (1) the “continuing violation” rule found in otherareas of the law has no application to the UCL;and(2) the trial court’s ruling was correct under the authority of Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884 (Snapp). In my view, the majority has unnecessarily focused on the continuing violation rule, which haslittle to do with this case. Instead, the similarly named but conceptually distinct “continuous accrual” doctrine is applicable. I also conclude that Snapp doesnot support thetrial court’s ruling.” Continuing Violation The “continuing violation”rule is almost exclusively a creature of employment discrimination law. As explained by our Supreme Court in its seminal opinion,the 2 I do not quarrel with the majority for addressing the continuing violation rule because that is how appellant unfortunately has framed the issue and how respondent understandably has answered. Somewhat buried in both the second amended complaint and in appellant’s opening brief is the frank concession that appellant is not seeking restitution for charges that occurred before the four year statute of limitation of Bus. & Prof. Code, section 17208. As I suggest below,the continuing violation doctrine, which “saves” otherwise barred claims, has no application to those claimsthat in fact fall within the statute oflimitations, as is the case with all of appellant’s post January 31, 2004 claims. 3 “Almost exclusively” because there are occasional applications in other areas of law. (E.g., Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 343-346 [continuing violation rule applies to claims for violations of Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.)].) Although the court in Suh v. Yang (N.D.Cal. 1997) 987 F. Supp. 783, 795-796 did not use the term “continuing violation” it described the California UCL claim as “continuing.” The court held that the statute of limitations did not bar state claims based on conduct occurring within four years of the filing of the complaint. The court expressly did not address whether recovery could be based on acts prior to the four year statute. (/d. at p. 796, fn. 9.) Other unpublished federal cases suggest that UCL claimsare not barred whenat least some multiple, continuous acts occurred within the limitations period. (E.g. Betz v. Trainer Wortham & 2 doctrine “allowsliability for unlawful employer conduct occurring outside the statute of limitationsif it is sufficiently connected to unlawful conduct within the limitations period.” (Richards v. CH2MHill,Inc. (2001) 26 Cal.4th 798, 802 (Richards).) If the continuing violation applies in a given case,not only is evidence of wrongdoing that would otherwise be barred bythe statute of limitations admissible, the actual wrongdoing — even though occurring outside the statute of limitations — is actionable. “Essentially, the continuing violation doctrine comes into play when an employeeraises a claim based on conductthat occurred in part outside the limitations period. In such cases, two questionsare potentially raised. The first question is evidentiary: Are the alleged acts outside the limitations period admissible as relevant background evidence? [Citation.] The second and moredifficult question is remedial: Is an employer liable for actions that take place outside the limitations period if these actionsare sufficiently linked to unlawful conduct within the limitations period?” (Richards, supra, at p. 812.) Richards involved claims for employmentdisability accommodation and harassment. In Yanowitz v. L’Oreal, USA, Inc. (2005) 36 Cal.4th 1028, 1054 (Yanowitz), the Supreme Court extended the doctrineto retaliation claims. A leading text on the subject describes the Richards/Yanowitz rule this way: “The continuing violation doctrine comesinto play when an employeeraises a claim based on conduct that occurred in part outside the limitations. Provided at least one of the acts occurred within the statutory period, the employer maybeliable for the entire course of conduct, including acts predating the statutory period, under the continuing violation doctrine.” (Chin et al., Cal. Practice Guide: EmploymentLitigation (The Rutter Group 2009) 4 16.264, p. 16- 36.) The continuing violation doctrine thus is implicated only when recovery is sought for some conductthat falls within the statute of limitations and somethatfalls outside the statute. If appellant were arguing that his pre-January 31, 2004 claims are nevertheless Company, Inc. (9th Cir. 2007) 236 Fed.Appx. 253, 256; citable under Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 251, fn. 6.) actionable because the continuing violation rule allows them to be joined with his timely claims, then we would havethe issue the majority raises: Does the continuing violation rule apply to UCL claims? Butthat is not appellant’s argument. Appellant’s contention is much simpler: respondent’s conductin violating the terms of the parties’ agreement comprised a series of unfair business practices. Those acts occurring within four years ofthe filing of the complaint are actionable. Those that occurred earlier are barred by thestatute of limitations. The straightforward natureofhis point emerges if we considerthis case as one involving a series of breaches of contract. Appellant alleges respondent breached the two copier leases on several dates in 2002, 2003 and 2004. In contract statute of limitations terms, the breaches that occurred before 2004 would be barred under Code of Civil Procedure section 337, subdivision (1), the four year statute for breach of a written contract. Those breaches occurring in 2004, within four yearsofthe filing of the complaint, are actionable. Ironically, respondent agrees thatthis is essentially a breach of contract case, or as respondent putsit in the first sentenceofits appellate brief: “This is a garden variety contract dispute concerning the propriety of certain charges... .4 Viewed in the context of breach of contract, it is well established that, when a contract is breached on multiple occasions, each breach givesrise to a new cause of action. Witkin states the rule plainly: “When a contractis severable, the duty to perform eachpart arises independently and the statute begins to run on the severable obligations from the time the performanceofeach is due.” (3 Witkin Cal. Procedure (5th ed. 2008) Actions, § 520, at p. 665.) Examples can be found in a wide variety of contract settings generally similar to the present case. (E.g., White v. Moriarty (1993) 15 Cal.App.4th 4 Neither the trial court nor the majority nor this opinion addresses whether on the merits appellanthasstated a cause ofaction for violating the UCL. Becausetheinitial series of attacks on the complaintdealt with the statute of limitations and other proceduralissues, no court has been called upon to determine whether, in respondent’s words,this is only a gardenvariety contract case or appellant has adequately alleged a UCLclaim. 1290, 1299 [promissory note]; Conway v. Bughouse, Inc. (1980) 105 Cal.App.3d 194, 200 {buy-sell agreement with monthly payments for life]; Carrasco v. Greco Canning Co. (1943) 58 Cal.App.2d 673, 675 [monthly salary increase]; Tillson v. Peters (1940) 41 Cal.App.2d 671, 674 [rent due under lease]; Lee v. De Forest (1937) 22 Cal.App. 2d 351, 360 [deficiency in monthly rental recoverable under termsoflease after lessor's lease to new tenant]; Trigg v. Arnott (1937) 22 Cal-App.2d 455, 459 [installment note].) Some cases have characterizedthis statute of limitations principle as the continuousaccrual rule. A careful parsing of “continuing violation” and “continuous accrual” reveals more than a semantical difference. The former describes whatis essentially a fiction: a wrong committed sometimein the past will be deemed to have also been committedlaterif it is closely connected with more recent misconduct. The original violation will be treated as continuing evenif the earlier act is completed. Continuousaccrualis different. Rather than extending the impactofprior conduct,it acknowledgesthereality that similar acts can continue to occur: one can breach the same contract over and over again in substantially the same manner. Earlier conductis not extended but repeated. Witkin describesthe rule as follows: “In several typesofcasesit has been held that, where right or obligation is continuing, successive causes of action to enforce it continuously accrue, and the barof the statute can only be set up against those causes on which the period has run.” (3 Witkin Cal. Procedure, supra, Actions, § 669, p. 886.) For example in City ofSanta Cruz v. Pacific Gas & Electric Co (2000) 82 Cal.App.4th 1167, 1178, the appellate court held that in an action against a public utility for underpaymentof franchise fees, a new claim accrued each timetheutility underpaid fees. To be sure, many of the continuous accrualcases involve public entities. (E.g. HowardJarvis Taxpayers Ass’n. v. City ofLa Habra (2001) 25 Cal.4th 809, 821 [declaratory relief claim based on invalidity of tax timely even thoughoriginal wrong occurred beyondstatute of limitations; some taxes had been imposed within statutory period]; Hogar Dulce Hogar v. Community Development Com’n ofCity ofEscondido (2003) 110 Cal-App.4th 1288 [reimbursement for overages paid to Housing Fund limited 5 to three years before filing of complaint under applicable three year statute of limitations]; Dryden v. Board ofPension Com ’rs. ofCity ofLos Angeles (1936) 6 Cal.2d 575, 580-581 [fact some claims for pension benefits were barred by statute of limitations did not prevent recovery for timely claims; right to pension payments “is a continuing right”].) However, the rule applies in the private sector as well. In Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, the Court ofAppeal was required to determine whether a complicated oil and gas lease was breached on single date, more than four years before the complaint wasfiled, or whether repeated failures of performance arising out of monthly payments and production delivery obligations were recurring breaches. The court held that the statute of limitations barred only those claims that predated the complaint by four years. “As a general rule, a cause of action accrues and a statute of limitations begins to run whena controversyis ripe - that is, when all of the elements of a cause of action have occurred and a suit may be maintained. [Citation.] Where there is a continuing wrong, however, with periodic new injury to the plaintiff, the courts have applied what Justice Werdegar has termed a “theory of continuous accrual.” [Citations.] [§| Thus, where performance of contractual obligations is severed into intervals, as in installment contracts, the courts have found that an action attacking the performance for any particular interval must be brought within the period of limitations after the particular performance was due. The situations in whichthis rule has been applied include not only installment contracts [citation], but also such diverse contractual arrangements as leases with periodic rental payments[citation], and contracts calling for periodic, pension-like payments on an obligation with no fixed and final amount[citation].” (Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co., supra, at p. 1388; but see Green v. Obledo (1981) 29 Cal.3d 126, 141-142 [court may have equitable powerto shorten statute of limitations].) I see little difference between this case which involves charges imposed on appellant as part of the rent he is contractually obligated to pay and, for example, the rental obligations in Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 6 57 Cal.App.4th 1334, 1338, which involved a complicated formula based on square footage, cost of construction and the consumerprice index. In each case a new breach, a newunfair businesspractice, starts a new accrualperiod. Nor do I discern any public policy that would justify in this context treating UCL claims based on multiple acts differently from claims based on contractor other theories. Even after Proposition 64, the UCL is broad in scope,a tool that often may be used to correct unfair business practices. (See In re Tobacco II Cases (2009) 46 Cal.4th 298, 317; Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350.) If an unlawful business practice is ongoing and causesan injury, the injured party maybeentitled to the limited remedies afforded by the UCL,as well as to those available under moretraditional theories. The nature of the repeated wrong does not change bythe inclusion of a UCL claim along with commonlaw causesof action. The injunctive relief authorized by the UCLshould not be automatically unavailable following recent misconduct merely becausethefirst unfair practice took place several years earlier. And, the policies of the statute of limitations and of the UCL seem equally furthered if any restitutionary award is limited to the four years preceding the filing of the complaint. (Bus. & Prof. Code, § 17208.) Snapp & Associates Ins. Services v. Malcolm Bruce Burlingame Robertson The second reason the majority gives for affirmingthetrial court’s rulingis the decision in Snapp & Associates Ins. Services v. Robertson, supra, 96 Cal.App.4th 884. In Snapp the plaintiff asserted commonlaw andstatutory causes of action including a claim under the UCL. The underlying wrong wasthe theft of insurance client accounts and commissions by one Gwin, who had long agofled the country. The lawsuit wasfiled against defendant Robertsonfor his role in the misappropriation of the customer accounts. Although the complaint wasfiled more than four years after the conversion took place, the plaintiff argued that the statute of limitations did not bar his claims because ofthe delayed discovery rule and equitable tolling. (/d. at p. 887.) Yet, Gwin had stolen the accounts in February 1993 andthe plaintiff “immediately began receiving notices that Robertson wasacting as broker of record for Gwin” on someofthe accounts. (ibid.) In March 1993 the plaintiff sued Gwin and ultimately recovered over $400,000, only a portion of which he wasable to collect. He filed suit against Robertson in August 21, 2007, more than four years after the theft. The court concluded that Robertson committed a single wrong when he became complicit in Gwin’s theft of the plaintiff's customerfiles, an act that had taken place outside the statute of limitations. The court’s analysis was confined to whether equitable tolling or delayed discovery applies to UCL claims. Becausethe plaintiff knew Robertson’s complicity almost from the get go, no tolling or delayed discovery was available. There is no discussion of continuing violation or continuous accrual. None of the cases cited in the majority opinion here or in this dissent are mentioned in Snapp. The court assumed there wasa single act of conversion and concludedthatit had taken place more than four years before the complaint. Snapp begins and ends with a rejection of equitabletolling and delayed discovery, neither of which appellants assert here.5 In contrast to Snapp is Suh v. Yang, supra, 987 F.Supp. 783 (Suh), a case that the majority does not discuss. Suh implicitly addresses both the continuing violation and the continuous accrual rules in the context of a UCL claim,and, in my view, correctly distinguishes the two concepts. There, the plaintiff allegedly created a new form of martial arts and over many years had licensed some 120 schools nationwide to use his trademark and logo. The defendantfirst joined the plaintiff in his operations, and then left to form a competing school. The plaintiff filed suit against defendantfor his improperuse of the terms “Kuk Sool Won” and “Kuk Sool”in whichtheplaintiff had 5 Some UCLclaims may have a single accrual date. As in Snapp,the facts of a case mightindicate a solitary unfair business practice, albeit with some tangential adverse consequences occurring over a period of time. Under those circumstancesit may be that as a factual matter there is only one accrual date, such that the continuousaccrual rule would be unavailable. The present case, though, involves a series of repeated,discrete acts, each of which, in my view,is separately actionable. claimed a protected proprietary interest. He alleged federal trademark and Lanham Act violations, as well as causes of action under California common law andstatutes, including the UCL. The parties each moved for summaryjudgment. Muchofthe opinion is devoted to a discussion of whether the name marks in question are legally protected, but defendantalso asserted that the state UCL claim wasbarred bythestatute of limitations. The defendant concededly started using the marks in 1987, but the lawsuit was not filed until 1996 well beyond the four year limitation of Business and Professions Code section 17208. The court nevertheless rejected defendant’s statute of limitations argument. It first assumedthat neither delayed discovery nor equitable tolling applied to UCLactions, the same points which appellant here has conceded. (See Stutz Motor Car ofAmerica, Inc. v. Reebok Intern. Ltd. (C.D. Cal 1995) 909 F. Supp. 1353, affd. (1997) 113 F.3d 1258 (1997), cert. den., 522 U.S. 863.) The court then held: “Assuming, arguendo,that Stutz correctly interprets Section 17208, Plaintiff's claim for unfair competition would notbe barredby the four year statute of limitations since the alleged wrongs(i.e. the wrongful use and dilution of Suh’s service marks) are multiple, continuous acts, and someof these acts have occurred within the limitations period.” (Swh, supra, 987 F. Supp at p. 795.) The court found that Stutz was distinguishable because the claim there was based on single wrong. The Suh court concluded that the plaintiff’s claims involved repeated acts of wrongful appropriation, each creating “a separate cause ofaction for unfair competition and trademark infringement.” (/d. at p. 796.) Without using the term “continuousaccrual,” Suh applies the doctrine to a case presenting multiple UCL claims, some of which had occurred within the statute of limitations and some of which wereoutside the statute. Those occurring within four years, it held, were actionable. Using legal jargon, the presentcase is on “all fours” with Suh. And almostasif the federal court had anticipated the debate between the majority and dissent here, the court expressly refused to consider whether “recovery for allegedly infringing acts occurring prior to the four year statute of limitations is barred” because the parties had notraisedit. (/d. at p. 796, fn. 9.) Again, without using the term 9 “continuing wrong,” the Suh court thus decided it did not have to decide whetherthat doctrine applied in UCL cases becausethe issue had not beenraised. In my view neither the continuing violation rule nor the holding in Snapp supports the decision the majority reaches. On the contrary, application of long standing principles in analogoussettings, often described as the “continuous accrual”rule, fortifies the conclusion that none of appellant’s post-January 31, 2004 claimsare barred by the statute of limitations. Accordingly, I would reverse the judgment in favor of respondent and permit the case to proceed.® RUBIN, ACTINGP.J. 6 Because the majority foundthe statute of limitations barred appellant’s claim,it did not need to address the two other grounds respondentasserted in support ofits demurrer. Briefly, respondent’s laches argument is unpersuasive because laches, assumingit otherwise applies, requires a showing of prejudice (Golden Gate Water Ski Club v. County ofContra Costa (2008) 165 Cal.App.4th 249, 263 [delay and either acquiescence or prejudice]), and the second amended complaint does not show prejudice on its face. As to respondent’s res judicata/collateral estoppel defense, those doctrines have only narrow application whenthe initial proceeding was in small claims court, as wasthe case here. (See Perez v. City ofSan Bruno (1980) 27 Cal.3d 875, 884-886; Sanderson v. Niemann (1941) 17 Cal.2d 563, 571; Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374.) Neither the second-amended complaint nor the matters of which the court could take judicial notice would permitthe trial court to concludethat appellant’s action is barred by res judicata or collateral estoppel as a matter of law. 10