Filed 1/23/20 Naud v. Rogers CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MELINDA NAUD,

Plaintiff and Appellant,

v.

WILLIAM M. ROGERS, as Personal Representative, etc.,

Defendant and Respondent.

B290633

(Los Angeles County

Super. Ct. No. BC518709)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael J. Raphael, Judge. Affirmed.

Cliff Dean Schneider and Tiffany Schneider for Plaintiff and Appellant.

Freedman + Taitelman, Bryan J. Freeman and Steven E. Formaker for Defendant and Respondent.

_________________________

Plaintiff and appellant Melinda Naud (Naud) appeals a judgment entered following the grant of a motion for summary judgment in favor of defendant and respondent William M. Rogers, IV, personal representative of Wayne Rogers.

Naud does not contend that Rogers’s moving papers failed to meet his initial burden on summary judgment, nor does she contend that her untimely opposition papers raised a triable issue of material fact. She merely argues, for the first time on appeal, that Code of Civil Procedure section 351 tolled the statute of limitations, and therefore the summary judgment must be reversed as to the second, fourth and sixth causes of action. However, this newly raised statutory argument is not properly before us because it does not present a pure question of law based on undisputed facts. Therefore, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. Overview.

On December 14, 1985, Naud gave birth to Luigi Calabrese (Calabrese). At the time, she was married to Francesco Calabrese, with whom she cohabited. Naud asserted that Rogers was Calabrese’s biological father.

On May 17, 1993, Naud and Rogers entered into a written agreement (the 1993 agreement), requiring Rogers to provide funds for Calabrese’s support, without any admission of paternity by Rogers. Among other things, the 1993 agreement required Rogers to make an initial $75,000 payment to Naud to cover child support through December 31, 1993, as well as to make annual payments of $50,000 for the years 1994, 1995 and 1996. The 1993 agreement also required Rogers to make monthly payments, starting at $3,600 per month in January 1997, until Calabrese reached the age of 18 or finished high school, whichever was later; Calabrese graduated high school in June 2005. Rogers made the required payments. In addition, the 1993 agreement obligated Rogers to pay up to $50,000, at the maximum rate of $12,500 per year, for four years of undergraduate education for Calabrese, provided that Calabrese was a full time student in good standing.

Naud thereafter claimed that she and Rogers entered into an oral agreement in 1997, which required Rogers to pay her additional child support for the years before 1993, to establish a trust for Calabrese’s benefit, to make provision for Calabrese to receive a home upon Rogers’s death, and to leave “something of significant value” to her and to Calabrese upon Rogers’s death.

In 2006, Naud received a letter from Rogers’s attorney, Melvin Goldsman (Goldsman), in which he stated that Rogers and Naud “have not entered into any further or additional agreements beyond that embodied in the written agreement of 1993.” In another letter from Goldsman, which Naud received in 2008, she was advised that “[a]s there are no other Agreements, oral or written, between you and [Rogers] other than the 1993 Agreement, he is under no obligation whatsoever to make further payments to you.” Despite these express denials by Rogers of any obligation to perform the alleged oral promises, Naud did not file this action until August 16, 2013.

2. Pleadings.

As relevant to this appeal, the operative fourth amended complaint included the following causes of action against Rogers: breach of oral contract (second cause of action); fraud (deceit), based on alleged representations by Rogers that induced her to refrain from going to court to obtain a modification of the 1993 agreement (fourth cause of action); and fraud (false promise), based on Rogers’s failure to perform the promises that he made to induce her to refrain from moving to amend the 1993 agreement (sixth cause of action).

3. Motion for summary judgment.

On September 15, 2017, Rogers filed a motion for summary judgment, or in the alternative for summary adjudication, supported by a separate statement of undisputed facts, appendix of evidence, and request for judicial notice. With respect to the second, fourth, and sixth causes of action, which are the subject of this appeal, Rogers contended as follows: Naud’s claim that he breached an oral contract to pay additional money to her and to establish a trust for Calabrese was barred by the two-year statute of limitations (§ 339) because the cause of action accrued no later than 2006 or 2008, when Goldsman’s letters to her denied the existence of any alleged oral contract. Similarly, in light of Goldsman’s letters to her in 2006 and 2008 denying the existence of an oral agreement, Naud could no longer reasonably rely on Rogers’s alleged representations. Therefore, the fraud claims in the fourth and sixth causes of action, which were governed by the three-year statute (§ 338, subd. (d)), likewise were time-barred.

4. Naud’s untimely opposition papers.

On May 25, 2018, the day of the hearing on the motion for summary judgment, Naud, who was self represented, filed an opposition memorandum, in which she argued the policy of law is to have every case heard on its merits, and that any doubts regarding a summary judgment motion must be resolved in favor of the opposing party. However, Naud did not respond to Rogers’s legal arguments, and she did not file a responsive separate statement of undisputed facts.

5. Hearing and trial court’s ruling.

The matter came on for hearing on May 25, 2018. In its order granting summary judgment, the trial court noted that the hearing on the motion had been continued twice, first from December 1, 2017 to February 14, 2018, and then from February 14, 2018 to May 25, 2018, to allow time for Naud to retain counsel and to submit opposition to the motion. However, “[Naud] did not timely submit any written opposition to the Motion. Although [Naud] represented that she had filed opposition papers at the Court’s filing window, as of the date of the hearing no copy of the opposition had been received in the assigned courtroom or appeared as scanned on the Court’s electronic docket sheet. The Court nonetheless allowed [Naud] to argue the [m]otion orally.”

After considering the moving papers and the oral arguments of the parties, the trial court found there were no triable issues of material fact and that Rogers was entitled to judgment as a matter of law. As relevant to this appeal, the trial court ruled as follows:

Second cause of action for breach of oral contract. Naud’s second cause of action was based on allegations that Rogers breached the alleged 1997 oral agreement (the “Verbal Agreement”) that called for him to make additional payments of money to Naud, and to bequeath a home to Calabrese and to leave something of significant value to Naud and Calabrese upon Rogers’s death. On October 11, 2006, Rogers’s attorney notified Naud by letter that Rogers denied the existence of the Verbal Agreement. Naud admittedly received the letter. Her receipt of the letter put her on notice that Rogers would not perform the Verbal Agreement. Naud’s breach of oral contract claim accrued no later than the date of her receipt of the letter in 2006. The statute of limitations on a breach of an oral contract is two years. (§ 339.) Naud filed suit in 2013, approximately seven years after the 2006 letter.

Fourth cause of action for fraud/deceit. The statute of limitations on a cause of action based on fraud is three years. (§ 338, subd. (d).) The cause of action accrues when the plaintiff discovers facts constituting the fraud. Naud alleged in her fourth cause of action that Rogers falsely represented that he would perform acts called for by the Verbal Agreement. In 2006, Rogers’s attorney informed Naud that Rogers denied the existence of the Verbal Agreement. The cause of action for fraud arising out of the representations made in the Verbal Agreement accrued no later than the date of this 2006 notification. Therefore, Naud had until 2009 to bring a claim for fraud based on those alleged misrepresentations. This action was not filed until 2013.

Sixth cause of action for fraud/false promise. This cause of action alleged that Rogers falsely promised to perform his alleged obligations under the 1993 written agreement and the 1997 Verbal Agreement without an intention of doing so. The statute of limitations on a cause of action based on fraud is three years· from the discovery of the facts constituting the fraud. (§ 338, subd. (d).) Any fraud cause of action based on a misrepresentation of Rogers’s intentions with respect to the Verbal Agreement accrued no later than 2006 when Rogers’s attorney informed Naud that Rogers denied the existence of the Verbal Agreement.

Naud filed a timely notice of appeal from the judgment.

CONTENTIONS

Naud contends: the trial court erred in granting Rogers’s motion for summary judgment as to the second, fourth and sixth causes of action because Rogers was not entitled to judgment as a matter of law; and the statutes of limitations on those causes of action were tolled because Rogers resided outside California.

DISCUSSION

1. Standard of appellate review.

Generally, we review a grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)

Section 437c, subdivision (b), “ ‘allows the court, in its discretion, to grant summary judgment if the opposing party fails to file a proper separate statement[.]’ ” (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416 (Kojababian).) However, this provision does not authorize the trial court to do so without first determining that the moving party has met its initial burden of proof. (Ibid.)

Once the movant has made a prima facie showing that it is entitled to summary judgment, “the burden shifts to the opposing party to make a showing of the existence of a triable issue of fact. [Citation.] If the opposing party fails to submit the required separate statement, under the applicable law and rules, a trial court may conclude that the opposing party has not satisfied [its] ‘burden of production’ showing a triable issue of fact. [Citation.] Thus, we must [first] examine whether defendant[] made a prima facie showing that [it is] entitled to a summary judgment.” (Kojababian, supra, 174 Cal.App.4th at p. 416, fn. omitted.)

2. Grant of summary judgment was proper; Naud does not challenge the sufficiency of Rogers’s moving papers, not does she contend that her untimely opposition papers raised a triable issue of material fact.

On “ ‘review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the lower court. [Citation.] . . . “[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.” [Citation.]’ [Citation.]” (Bains v. Moores (2009) 172 Cal.App.4th 445, 455.) Thus, “[i]ssues do not have a life of their own: if they are not raised or supported by [substantive] argument or citation to authority, we consider the issues waived.” (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)

Here, Naud does not contend in her appellant’s opening brief that Rogers’s moving papers failed to make a prima facie showing that summary judgment was warranted. Thus, the issue of the sufficiency of the moving papers is not before us.

Therefore, we proceed to the next step of the analysis, i.e., whether the party opposing summary judgment raised a triable issue of material fact that would defeat the motion for summary judgment. As indicated, Naud filed an untimely opposition on the day of the hearing. Naud does not contend in her appellant’s opening brief that the trial court abused its discretion by failing to consider her opposition papers, nor does Naud contend in the brief that her opposition papers raised a triable issue of material fact. Accordingly, Naud has not shown any error by the trial court in its grant of Rogers’s motion for summary judgment.

3. Naud’s belated reliance on the tolling provision of section 351 is misplaced because the application of the statute is not a pure question of law based on undisputed facts.

Naud’s sole argument in her appellant’s opening brief is that notwithstanding her failure to properly oppose summary judgment in the court below, the summary judgment must be reversed as to the second, fourth, and sixth causes of action because the statute of limitations was tolled during the period that Rogers resided outside California. Naud relies on section 351, which provides: “If, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action.” (Italics added.)

Naud asserts it is undisputed that Rogers resided outside California since 2002, and therefore the statute of limitations was tolled from 2002 to August 16, 2013, the date she filed the original complaint. Naud further contends that her failure to file proper opposition below does not preclude her from raising this issue on appeal, because the issue presents a pure question of law based on undisputed facts. We conclude, however, that Naud’s belated reliance on section 351 is unavailing.

As a general rule, issues not raised in the trial court cannot be raised for the first time on appeal. (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 264.) However, an appellate court has the discretion to consider a new issue on appeal where it involves a pure question of the application of law to undisputed facts. (Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1709 (Sheller).)

This exception is inapplicable here because Naud’s new statutory argument does not “involve a pure question of law that can be resolved on undisputed facts.” (Fort Bragg Unified School Dist. v. Colonial American Casualty & Surety Co. (2011) 194 Cal.App.4th 891, 907.) Even assuming that Rogers was a Florida resident as of 2002, Naud has not developed a record to establish how section 351 would apply to this fact situation. As Rogers argues, section 351 does not address a defendant’s place of residence. Rather, the statute refers to a defendant’s absence from California. To reiterate, section 351 provides, “If, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action.” (Italics added.)

Obviously, someone who does not reside in California may nonetheless spend substantial periods of time in this state, during which time there would be no tolling under section 351. Indeed, Naud pled in the fourth amended complaint that Rogers “has owned and managed a business management company, Wayne Rogers & Company, in Los Angeles, California for over 40 years,” which would have given him reason to spend time in California. Naud also pled that Rogers is “an American film and television star,” which would have given him additional reason to spend time in this state. Consequently, as Rogers argues on appeal, a mere showing by Naud that Rogers was a Florida resident as of 2002 does not begin to establish the dates that Rogers was either present in, or absent from, California in the subsequent years. Simply stated, Naud failed to develop a record as to the dates that Rogers was absent from this state. Thus, Naud’s newly raised argument that the statute of limitations was tolled pursuant to section 351 due to Rogers’s Florida residency does not present a pure question of law based on undisputed facts. Therefore, Naud’s belated reliance on section 351 is unavailing.

DISPOSITION

The judgment is affirmed. Rogers shall recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

DHANIDINA, J.