Filed 1/24/20 Kim v. Pak CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR
OK JOO KIM,

Plaintiff and Appellant,

v.

YOUNGHEE SUSAN PAK,

Defendant and Respondent. B298270

(Los Angeles County

Super. Ct. No. KC069651)

APPEAL from a judgment of the Superior Court of Los Angeles County, Gloria White-Brown, Judge. Affirmed.

SW SMYTH, Andrew Smyth for Plaintiff and Appellant.

Marh & Associates, Rosa Kwong for Defendant and Respondent.

INTRODUCTION

On September 26, 2017, plaintiff and appellant Ok Jim Kim sued respondent Younghee Susan Pak for breach of contract, alleging Pak never made payments on dishonored checks. After a one-day bench trial, the court held the action was time-barred based on the expiration of the four-year statute of limitations for an action on a written contract under Code of Civil Procedure section 337, subdivision (a). The court further held Pak’s purported oral promise in 2015 to “make good” on the checks was insufficient as a matter of law to extend the statute of limitations or create a new obligation.

We note our analysis is hampered by the lack of a reporter’s transcript from the trial or a settled statement. We have taken the facts recounted below from the recitation of Kim’s testimony in the trial court’s Order of Judgment, which is not particularly detailed. Because we have not been provided copies of the trial exhibits, we also rely on the trial court’s Order of Judgment for our description of the checks.

We further note that, although this is an action for dishonored checks, neither party mentioned California’s version of the Uniform Commercial Code (UCC) in the trial court proceedings (so far as we can tell) or appellate briefs. We therefore sent a letter requesting supplemental letter briefs (Gov. Code, § 68081) addressing the applicability of the UCC, and whether the statute of limitations set forth in Commercial Code section 3118, subdivision (c) governs Kim’s action to collect the dishonored checks. We conclude Kim’s complaint is time-barred under the statute of limitations provisions provided in both the Code of Civil Procedure and the Commercial Code. We therefore affirm the judgment.

FACTUAL BACKGROUND

Kim owns and operates a check cashing business. Pak and her husband, Chong Pak, were frequent customers of the business. Between the dates of 2011 and 2013, Kim cashed 11 checks for Pak totaling $501,800. Pak asked Kim “not to deposit said checks, but to hold the checks until [she] could make good on the checks.” “[A]t one point, [Kim] went into the bank to cash the checks but was told by the bank there was [sic] not sufficient funds to cash the checks. [Kim] deposited three checks received from [Pak] in July 2013. Stop payments were placed on those checks on July 23, 2013.”

Kim last spoke with Pak regarding the money owed around December 2015 by phone. Pak promised to pay, stating “‘please wait a little longer I will repay soon,’” but Kim never received payment for the money she was owed.

DISCUSSION

Kim’s Failure to Provide a Reporter’s Transcript or Settled Statement

As discussed above, the record on appeal does not include a reporter’s transcript, settled statement, or copies of the allegedly dishonored checks. “[I]t is appellant’s burden to provide a reporter’s transcript if ‘an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court . . .’” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1034, fn. 5.) We proceed to consider the issues raised on appeal, noting however that it is the appellant’s obligation to provide an adequate record to demonstrate error. (See Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483.)

Kim’s Complaint is Time-Barred

Kim contends the court erred in entering judgment for Pak. She asserts Pak’s oral promise to pay in December 2015 constituted a new oral contract, making her complaint—filed in September 2017—timely. Where the relevant facts are not in dispute, the effect of the statute of limitations may be decided as a question of law. (Int’l Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611.) On de novo review, we will affirm a judgment correct on any legal basis, even if that basis was not invoked by the trial court. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 269.) “There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct. [Citation.]” (Ibid.)

Because Kim brought one cause of action for breach of contract, the court analyzed whether the claim was time-barred under Code of Civil Procedure section 337, subdivision (a), which provides an action for breach of written contract must be commenced within four years of the date of the alleged breach. The court held the statute of limitations expired on July 23, 2017—two months before Kim filed her complaint—because Kim “deposited three checks received from [Pak] in July 2013” but “[s]top payments were placed on those checks on or about July 23, 2013.

Where the checks were the only so-called “written contracts” between the parties, Kim should have brought an action under the UCC for statutory enforcement of dishonored checks. (Cal. U. Com. Code, § 3101.) Even under a dishonored-check theory, however, the claim is time-barred. Under the UCC, “negotiable instruments” are unconditional promises or orders to pay a fixed amount of money, with or without interest. (Id., § 3104, subd. (a).) Negotiable instruments are divided into “drafts” and “notes.” (Id., § 3104, subd. (e).) A “check” is a draft payable on demand and drawn on a bank. (Id., § 3104, subd. (f).) The statute of limitations for actions to enforce an obligation created by a check is set forth in Commercial Code section 3118, subdivision (c), which states in relevant part: “[A]n action to enforce the obligation of a party to an unaccepted draft to pay the draft shall be commenced within three years after dishonor of the draft or 10 years from the date of the draft, whichever period expires first.”

According to the trial court’s Order of Judgment, between the dates of 2011 and 2013, Kim received a total of 11 checks from Pak. Four of the eleven checks were undated and four of the checks (three of which were dated) had no payee identified. The trial court’s order also states “Plaintiff further testified that at one point she went into the bank to cash the checks but was told by the bank there was [sic] not sufficient funds to cash the checks. Plaintiff deposited three checks received from Defendant in July 2013. Stop payments were placed on those checks on or about July 23, 2013.” Accordingly, assuming Kim attempted to receive payment from Pak’s bank on all of the checks (as the court’s order indicates), the statute of limitations expired three years after dishonor of the checks (i.e., July 23, 2016), over a year before Kim filed her complaint. (Cal. U. Com. Code, § 3118, subd. (c).)

Kim concedes Pak’s oral promise in December 2015 to “repay [the money] soon” does not extend the time limitation for suing on a written contract. She argues, however, that Pak’s oral promise to repay the money created a new oral contract because her “act in refraining from filing a lawsuit for breach of written contract furnishes consideration for the new promise.” But Kim fails to cite to evidence in the record demonstrating she refrained from filing a lawsuit because of the oral promise to pay. In her opening brief, Kim claims she testified she refrained from filing a lawsuit because of the oral promise to pay, but this purported testimony is not contained in the trial court’s Order of Judgment, and, as discussed above, she does not provide a reporter’s transcript or settled statement. (Estate of Fain (1999) 75 Cal.App.4th 973, 992 [where “no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record the judgment must be conclusively presumed correct as to all evidentiary matters.”].) Because the record lacks evidence of consideration, Pak’s oral promise to pay is insufficient as a matter of law to create a new oral contract. (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1006 [“Consideration is an essential element of a contract.”].)

Alternatively, for the first time on appeal, Kim contends Civil Code section 2794 applies, and therefore asserts Pak’s oral promise to pay money owed in December 2015 is an enforceable oral contract. So far as we can tell, Kim waived this argument by failing to raise it in the trial court. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 (Ochoa) [“It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.”].) In any event, we are unpersuaded. Civil Code section 2794 states a “promise to answer for the obligation of another . . . is deemed an original obligation of the promisor, and need not be in writing.” (Civ. Code., § 2794.) Nothing in the record indicates Pak’s alleged oral promise to pay was an assumption of another person’s debt.

Finally, we reject Kim’s remaining arguments that (1) “[u]nder common counts [Pak] should be estopped” from “asserting that the oral promise to pay did not exten[d] the statute [of limitations]” (emphasis omitted); and (2) the facts support a cause of action for promissory fraud. Kim neither pled a cause of action for common counts nor promissory estoppel in her amended complaint. Thus, she is precluded on appeal from asserting new arguments based on causes of action not pled in the operative complaint. (Ochoa, supra, 61 Cal.App.4th at p. 1488, fn. 3.)

DISPOSITION

The judgment is affirmed. Pak is awarded her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

WE CONCUR:

MANELLA, P. J.

COLLINS, J.