NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Del Norte County Super. Ct. No. CVUJ09-1323)
This is the second lawsuit brought by plaintiff Wesley I. Nunn against defendant Melissa A. LeBlanc. The trial court granted LeBlanc's demurrer to the second amended complaint, concluding that the claims were barred by the statute of limitations. Nunn, representing himself, appeals from the judgment of dismissal, arguing that the limitations period was tolled while he pursued his first lawsuit. We disagree and affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
Nunn and Jennifer Fenswick (who is not a party to this appeal) were romantically involved and lived together for several years. When the relationship ended in 2004, Nunn agreed to deed certain real property to LeBlanc, who is now Fenswick's daughter-in-law, in exchange for a release of Fenswick's claims against him.
A grant deed transferring the property to LeBlanc was signed by Nunn on May 24, 2004, and recorded on June 15, 2004. Also on June 15, 2004, Fenswick signed a release that provided: "Upon the execution of the Grant Deed for the house located at 347 Meridian St., Crescent City, CA to Melissa A. LeBlanc, your financial obligation to me is paid in full to date, with the exception of any and all interest in the property located at 1089 K. Street, Crescent City, CA and the funds paid to you toward the 1997 Mercury Mountaineer (as to today's date: $760)."
Fenswick filed a lawsuit against Nunn on September 15, 2005, alleging that she was entitled to recompense under an oral agreement to pool resources and share equally in the benefits of property acquired during their relationship. (Fenswick v. Nunn, (CVUJ05-1431).) Nunn filed a cross-complaint against Fenswick claiming, among other things, that Fenswick had fraudulently induced him to transfer the Meridian property to LeBlanc by signing the release giving up her other claims, even though she did not intend to be bound by that release. On November 10, 2005, Nunn also filed a separate lawsuit against LeBlanc seeking damages for fraud and rescission of the agreement to transfer the Meridian Street property to her. (Nunn v. LeBlanc, (No. CVUJ05-1527).) The trial court denied Nunn's motion to consolidate the two cases, which was brought about three months before the trial commenced in Fenswick v. Nunn (CVUJ05-1431).
A court trial was held in Fenswick v. Nunn (CVUJ05-1431). On August 15, 2008, the court filed a written tentative ruling in favor of Nunn on the claims asserted by Fenswick. The court specifically found that the release signed by Fenswick on June 15, 2004 was a valid release and settlement of all financial obligations of the parties up to that date, that neither party had fraudulently induced the other for any purpose, and that neither side had been unjustly enriched at the expense of the other. It awarded Nunn approximately $7,900 in damages for unauthorized credit card charges made by Fenswick after June 2004. Judgment was entered on April 6, 2009.
Based on the judgment entered in Fenswick v. Nunn (CVUJ05-1431), LeBlanc filed a motion to dismiss the action against her in Nunn v. LeBlanc (CVUJ05-1527), arguing that Nunn's claims were barred by principles of res judicata and collateral estoppel . The trial court agreed and ordered the case dismissed. It explained in its written ruling, "[T]he court finds that the issues raised by the pleadings, as they are now framed, have been resolved by the findings necessarily made by the trial judge when reaching the decision in the Fenswick v. Nunn case. Once having found that Fenswick had not committed fraud as to Nunn, no subsequent finding to the contrary can be made regarding LeBlanc, as there are no independent allegations against LeBlanc. All allegations against her are premised on her association with Fenswick, who has been held innocent of fraud towards Mr. Nunn." A judgment dismissing the action was entered on August 31, 2009, and though Nunn filed a notice of appeal, that appeal was dismissed by the court after he failed to designate the appellate record.
On September 14, 2009, after the dismissal of Nunn v. LeBlanc (CVUJ05-1527), Nunn filed the instant action naming Fenswick and Does 1 through 5 as defendants. The original complaint alleged a cause of action for breach of written contract, based on Fenswick's filing of a lawsuit against Nunn after signing the June 15, 2004 release, and a common count seeking mesne profits resulting from that breach. On January 25, 2010, Nunn filed a first amended complaint asserting the same causes of action against Fenswick, LeBlanc, and Does 1 through 4.
LeBlanc filed a demurrer to the first amended complaint, arguing that (1) the claims were barred by the four-year statute of limitations applicable to actions on a written contract under Code of Civil Procedure section 337; (2) the assertion of the same set of claims in a new lawsuit was barred by the rule precluding a plaintiff from splitting a cause of action into successive suits (Hamilton v. Asbestos Corp. Ltd. (2000) 22 Cal.4th 1127, 1145); (3) the claims were barred by res judicata and collateral estoppel, as having been previously litigated and determined; (4) the claims were barred by the doctrine of laches; and (5) the allegations were vague and ambiguous as to LeBlanc. While the demurrer was pending, Nunn filed a motion to amend the complaint, accompanied by a proposed second amended complaint that included additional causes of action.
Further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The court sustained the demurrer to the first amended complaint without leave to amend, based on the expiration of the statute of limitations. It indicated that it would allow the parties to determine how to address the new causes of action in the proposed second amended complaint. On July 21, 2010, Nunn served a second amended complaint on LeBlanc that included causes of action for declaratory relief, constructive trust, rescission, quiet title, mesne profits, malicious prosecution, and abuse of process. LeBlanc filed another demurrer asserting that the claims were barred by: (1) the statute of limitations; (2) the rule against claim-splitting; (3) the doctrines of res judicata, collateral estoppel and laches; and (4) the failure of the pleading to state facts sufficient to support certain causes of action.
The court sustained the demurrer without leave to amend. Its written order states, "The gravaman of Plaintiff's complaint is that he entered into a contract which provided that he would not be sued, in exchange for consideration in the form of a parcel of real estate. Subsequently, he was sued, and he therefore seeks return of the consideration. [¶] No matter how he seeks to characterize his claim, his cause of action is based upon an alleged breach of contract. The Statute of Limitations has clearly run, and further amendment would be useless."
The breach of contract in this case occurred on September 15, 2005, when Fenswick filed her lawsuit against Nunn. The instant lawsuit was not commenced against LeBlanc until the first amended complaint was filed on January 25, 2010, more than four years after the breach. Because Nunn had previously sued LeBlanc and was not ignorant of her identity or the facts that allegedly rendered her liable, he cannot rely on the attempted substitution of LeBlanc as a Doe defendant to "relate back" to the original complaint in this action, which he filed against Fenswick alone on September 14, 2009. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177.)
Nunn filed a motion for reconsideration under section 1008, subdivision (a), arguing, among other things, that the limitations period had been equitably tolled during the pendency of his second lawsuit, Nunn v. LeBlanc (CVUJ05-1527). The court denied the motion and judgment was entered in favor of LeBlanc.
Nunn argues that this action is timely because the limitations period was equitably tolled during the pendency of the lawsuit he filed against LeBlanc in November 2005. This argument was not presented to the trial court until Nunn filed his motion for reconsideration, so our initial focus is on whether the trial court erred in denying that motion.
Under section 1008, subdivision (a), a motion for reconsideration must be "based upon new or different facts, circumstances, or law." (See Gilberd v. A.C. Transit (1995) 32 Cal.App.4th 1494, 1498-1500.) The moving party must also provide the trial court with a satisfactory explanation for failing to raise the issue at an earlier time. (See Lucas v. Santa Monica Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027-1028; Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) Nunn did not offer any satisfactory explanation as to why he did not raise the equitable tolling theory in opposition to the demurrer or include the facts supporting that theory in the second amended complaint. The trial court did not abuse its discretion when it denied the motion for reconsideration. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
In any event, the facts alleged and judicially noticeable do not support a theory of equitable tolling. Equitable tolling has its genesis in Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399 (Bollinger),in which the plaintiffs timely lawsuit against an insurance carrier was dismissed after a nonsuit was erroneously granted, based on the court's mistaken conclusion that the suit was premature under the terms of the insurance policy. (Id. at pp. 401-404.) The plaintiff then filed a second suit on the same cause of action, but because the defendant had delayed the progress of the first action, the statute of limitations had expired. (Id. at pp. 403, 405-406.) The Supreme Court reversed a trial court ruling sustaining a demurrer on statute of limitations grounds, concluding that the plaintiff should have been allowed to proceed due to the following circumstances: (1) the nonsuit in the first action had been erroneously granted; (2) the defendant had engaged in dilatory tactics that caused the statute of limitations to lapse; and (3) the plaintiff had at all times proceeded in a diligent manner. (Id. at pp. 403-406; see Hull v. Central Pathology Service Medical Clinic (1994) 28 Cal.App.4th 1328, 1335 (Hull).)
Bollinger involved "a peculiar sequence of events deemed to be of controlling importance" (Neff v. New York Life Ins. Co. (1947) 30 Cal.2d 165, 174), and the concurrence of the three factors present in Bollinger is essential to an application of equitable tolling when the plaintiff has filed successive actions in the same forum. (Wood v. Elling Corp. (1977) 20 Cal.3d 353, 361 (Wood); Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th 1261, 1270-1271 (Hu).) Thus, before equitable tolling will apply, "(1) the plaintiff must have diligently pursued his or her claim; (2) the fact that the plaintiff is left without a judicial forum for resolution of the claim must be attributable to forces outside the control of the plaintiff; and (3) the defendant must not be prejudiced by application of the doctrine. . . ." (Hull, supra, 28 Cal.App.4th at p. 1336; see also Rose v. Hudson (2007) 153 Cal.App.4th 641, 656.)
The facts alleged by Nunn in this case do not establish diligence on his part, nor do they establish that the circumstances leaving him without a judicial forum were beyond his control. His first action against LeBlanc, based on the same underlying facts, was dismissed on the grounds of res judicata and collateral estoppel. He could have pursued an appeal if he disagreed with that ruling, but he chose not to do so. (See Wood, supra, 20 Cal.3d at p. 361 [court declined to apply the Bollinger rule to a plaintiff whose first suit was dismissed for failure to serve the summons within three years]; Hull, supra, 28 Cal.App.4th at p. 1336 [equitable tolling did not apply where plaintiff was unable to amend her complaint in the first action due to her own failure to comply with the time limits of section 425.13]; Hu, supra, 70 Cal.App.4th at pp. 1263-1265, 1270-1271 [equitable tolling did not apply where first ac tion was dismissed because plaintiff failed to pay court fees].) Similarly lacking are facts showing that LeBlanc engaged in dilatory tactics during the earlier litigation.
LeBlanc's opposition to Nunn's motion to consolidate the first suit against her (Nunn v. LeBlanc (CVUJ05-1527)) with the lawsuit filed against him by Fenswick (Fenswick v. Nunn (CVUJ05-1431)) was not "dilatory." The opposition was apparently meritorious, as the motion to consolidate was denied.
Nunn alternatively argues that we should apply the five-year limitations period of sections 318 and 319 to this case. Section 318 provides, "No cause of action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question within five years before the commencement of the action." Section 319 provides, "No cause of action . . . arising out of the title to real property, or to rents and profits out of the same, can be effectual, unless it appear that the person prosecuting the action . . . or the ancestor, predecessor, or grantor of such person was seized or possessed of the premises in question within five years before the commencement of the act in respect to which such action is prosecuted . . .." Nunn deeded the property to LeBlanc on June 15, 2004, and did not possess the property within five years before the commencement of this action against LeBlanc on January 25, 2010; therefore, his claims are not timely under these statutes.
In addition to the arguments already discussed, which were raised in the trial court, Nunn argues for the first time on appeal that (1) the statute of limitations was suspended while he was "legally prevented from proceeding during contract validation proceedings"; (2) LeBlanc "waived" the statute of limitations and is estopped from asserting that defense because she opposed Nunn's motion to consolidate the first lawsuit against her with the lawsuit brought by Fenswick; and (3) the limitations period was tolled under section 351 because LeBlanc allegedly moved to Hawaii in 2006. These arguments have been forfeited by Nunn's failure to present them below. (See In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 912.)
Moreover, as LeBlanc notes in her respondent's brief, section 351 has been held to violate the federal commerce clause. (Dan Clark Family Limited Partnership v. Miramontes (2011) 193 Cal.App.4th 219, 232-234; Heritage Marketing and Ins. Services, Inc. v. Chrustawka (2008) 160 Cal.App.4th 754, 758-764; see also Abramson v. Brownstein (9th Cir. 1990) 897 F.2d 389, 391-393.)
In light of our resolution of the these issues, we need not reach LeBlanc's claim that the trial court's ruling on the demurrer may be upheld based on principles of res judicata and collateral estoppel.
The judgment is affirmed. Costs on appeal are awarded to respondent LeBlanc.
JONES, P. J.