Filed 3/26/20 Fox v. Forster CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

PATRICIA FOX,

Plaintiff and Appellant,

v.

GARDNER FORSTER III,

Defendant and Respondent.

A154906

(Contra Costa County

Super. Ct. No. MSN18 0347)

Patricia Fox appeals an order vacating the California entry of her Alaska judgment against Gardner Forster III on statute of limitations grounds. She argues the court applied an incorrect statute but if it applied the correct statute, multiple legal and equitable grounds exist not to enforce it. We affirm.

BACKGROUND

In 1983 Forster caused an automobile accident that injured Fox in Alaska. He was arrested, criminally charged, and released on bail. He then left Alaska. Fox says he “fled” the state. According to Forster, he “moved to California in 1983.” In 1987 Fox obtained a default judgment against Forster in Alaska for her injuries, but she did not locate him to enforce it until 2015. In 2018 she applied for entry of judgment on a sister state judgment, which the Contra Costa Superior Court granted. The court later vacated the judgment on Forster’s motion on the grounds that the statute of limitations barred Fox’s application and the limitations period was not delayed or tolled. Fox appeals.

DISCUSSION

I. The Legal Framework

The superior court can vacate a judgment entered under the Sister State Money Judgments Act (Code Civ. Proc., § 1710.10 et seq.) “on any ground which would be a defense to an action in [California] on the sister state judgment” (§ 1710.40, subd. (a)), including where “suit on the judgment is barred by [California’s] statute of limitations” (Cal. Law Revision Com. com., Deering’s Ann. Code Civ. Proc. (2014 ed.) foll. § 1710.40, p. 255). (See generally Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4th 831, 837–839.) An action on a sister state judgment must be commenced within 10 years (§§ 335, 337.5, subd. (b)) after the judgment becomes final (Cal. Law Revision Com. coms., Deering’s Ann. Code Civ. Proc. (2015 ed.) foll. § 683.050, p. 515). (Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 373 (Kertesz).)

II. Analysis

Fox challenges the order on multiple grounds: (1) the statute of limitations in section 337.5 does not apply; (2) even if it does, the discovery rule delayed the action’s accrual, and both statutory and equitable tolling extended the limitations period; (3) Forster should be estopped from asserting the statute of limitations at all; (4) equity and maxims of jurisprudence supersede any legal bar to enforcement of the judgment; and (5) the judgment is enforceable until satisfied despite the statute of limitations because it is for damages from criminal conduct. Fox’s arguments involve the application of law to undisputed facts, which we review de novo. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.)

A. The Court Applied the Correct Statute of Limitations
B.
The court ruled Fox’s application was untimely under section 337.5, which Fox argues is not the correct statute of limitations. She claims, “Section 337.5 is for renewal of an existing California judgment, not for an ‘action on a judgment’ . . . .” Not so. Section 337.5 plainly sets the limitations period for commencing a new action on a judgment, including a sister state judgment. (§ 337.5, subd. (b); American Bank of Commerce v. Corondoni (1985) 169 Cal.App.3d 368, 369–370, 371.) As Forster argues, it is the Enforcement of Judgments Law (§ 680.010 et seq.) that governs renewal of the period of enforceability of an existing California judgment (§§ 680.230, 680.270, 683.110), including one based on a sister state judgment (Cal. Law Revision Com. coms., Deering’s Ann. Code Civ. Proc. (2015 ed.) foll. § 681.010, p. 498). The Enforcement of Judgments Law does not apply to a separate action on a judgment. (Pratali v. Gates (1992) 4 Cal.App.4th 632, 636–639; see § 683.050 [a judgment creditor must “bring an action on a judgment . . . within the period prescribed by Section 337.5”].) The court applied the correct statute of limitations, but the question remains when the limitations period began to run.

The limitations period for an action on a judgment begins to run when the judgment becomes final. (Kertesz, supra, 115 Cal.App.4th at p. 373.) The court here observed, “The parties have not addressed exactly when a [sister state] judgment is sufficiently final for the [limitations period] to begin running under [section] 337.5. What appears to be required is that the judgment is sufficiently final that it [can] be enforced in its home state. . . . [I]t appears that the Alaskan judgment became final in 1987. . . . Thus, the Court finds that the ten year [limitations period] began running in 1987 . . . and . . . unless [it] was tolled, it expired in 1997.” Although when Fox opposed Forster’s motion she conceded the judgment is “final,” “nonappealable,” and “enforceable in Alaska,” she now asserts the judgment “[has] remained . . . unenforceable in Alaska” since entry because “Forster . . . had no assets there” by 1987. But whether Fox can effectively execute on the judgment is different from whether the judgment is legally enforceable. Because she does not challenge the court’s findings that the judgment became final and the limitations period began to run in 1987, we uphold them. (See Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 [a superior court order is presumed correct and it is an appellant’s burden to demonstrate error].)

C. The Limitations Period Was Not Delayed or Tolled
D.
1. Delayed Discovery
2.
Fox argues the discovery rule delayed the action’s accrual to 2015 because she did not discover until then that Forster lived in California. She refers us to CACI No. 455 and the authorities cited therein without discussing how they might control or apply. Her reliance on CACI No. 455 is misplaced; “jury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent.” (People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7.) Further, although we could hold this contention forfeited for Fox’s failure to support it with reasoned argument (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill)), we will address it because Forster does not argue forfeiture (DFS Group, L.P. v. County of San Mateo (2019) 31 Cal.App.5th 1059, 1086).

The discovery rule does not apply here. “Generally, a plaintiff must file suit within a designated period after the cause of action accrues. (Code Civ. Proc., § 312.)” (Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797.) A cause of action accrues “ ‘ “[when] the party owning it is entitled to begin and prosecute an action thereon.” ’ ” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487.) “The discovery rule protects those who are ignorant of their cause of action through no fault of their own” (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832) by delaying accrual “until the plaintiff ‘discovers, or has reason to discover, the cause of action’ ” (Pooshs, at p. 797). Fox acknowledges her cause of action is for “enforcement, i.e., recovery of the amount of the judgment” (Manco Contracting Co. (W.L.L.) v. Bezdikian (2008) 45 Cal.4th 192, 208). For the discovery rule to delay accrual of the action on the judgment to 2015, Fox would have to show that until then she neither knew nor could know she had a judgment she could enforce. On the contrary, she “search[ed] for [Forster] every place [she] could think of . . . for nearly 28 years” “to execute on the judgment.” She argues she “had no way” to locate Forster “until . . . the advent of social media,” but this is not enough. Her lack of knowledge of his whereabouts is immaterial. “[N]either the creditor’s ignorance of nor his inability to discover the presence of the judgment debtor will prevent the running of the statute in the latter’s favor.” (St. Paul Title & Trust Co. v. Stensgaard (1912) 162 Cal. 178, 179–180, 181 [a 1909 action on an 1891 sister state judgment was time-barred even where the creditor could not locate the debtor after he moved from Minnesota to California then changed his name].)

3. Statutory Tolling
4.
Fox asserts the limitations period was statutorily tolled under two theories, each without citation to legal authority. (Cal. Rules of Court, rule 8.204(a)(1)(B).) First, she argues: “The law is clear . . . that someone’s absence from a state is a basis for tolling the statute of limitations.” While Forster’s absence from Alaska since he injured Fox “might not be the most common application of the ‘absence from state’ tolling,” it should be applied here. But that is not the law. “If, when the cause of action accrues against a person, he is out of the state . . . , the time of his absence is not part of the time limited for the commencement of the action.” (§ 351.) Section 351 tolls the limitations period in section 337.5 only “while the defendant (judgment debtor) is outside of California.” (Trend v. Bell (1997) 57 Cal.App.4th 1092, 1098.) As the court here noted, section 351 does not apply because the record is devoid of “evidence that [Forster] left this state after [he moved here in] 1983 . . . .”

Second, Fox argues the limitations period was tolled while Forster was in bankruptcy in 2011 and from 2013 to 2017. Again, not so. “The filing of a bankruptcy petition [automatically stays] the commencement or continuation of a judicial proceeding against the debtor that was or could have been commenced before the [filing] of the bankruptcy [petition]. (11 U.S.C. § 362(a)(1).) [¶] . . . [As] a ‘statutory prohibition’ [under Code of Civil Procedure] section 356, . . . the period of time of the automatic stay is not counted as part of the limitations time.” (Inco Development Corp. v. Superior Court (2005) 131 Cal.App.4th 1014, 1019; see Kertesz, supra, 115 Cal.App.4th at p. 374 [stay applies to new action on a judgment].) “The effect of the automatic bankruptcy stay is set forth in 11 United States Code section 108(c)” (Lewow v. Surfside III Condominium Owners Assn., Inc. (2012) 203 Cal.App.4th 128, 133), under which “any state period of limitation is tolled during the pendency of the [stay]” (Kertesz, at p. 377), but only if “such period has not expired before the date of the filing of the petition” (11 U.S.C. § 108(c)). (See In re Swintek (9th Cir. 2018) 906 F.3d 1100, 1106 [state law limitations period extended where “a portion of that period coincided with the automatic stay”].) Here any stay would be ineffectual because the limitations period in Code of Civil Procedure section 337.5 expired in 1997, before Forster first filed for bankruptcy in 2011.

Fox makes a related argument that the judgment is a nondischargeable debt under 11 United States Code section 523(a)(9) and thus “cannot be viewed . . . as barred by a statute of limitations.” Although she made this argument in the superior court, she forfeits it on appeal because she raises it for the first time in her reply brief (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1050) and she fails to support it with reasoned argument and citations to authority (Cahill, supra, 194 Cal.App.4th at p. 956). “ ‘Appellate briefs must provide argument and legal authority for the positions taken’ ” (ibid.), and “arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party.” (People v. Tully (2012) 54 Cal.4th 952, 1075.)

5. Equitable Tolling
6.
Fox argues the court erred when it rejected application of the doctrine of equitable tolling. “The doctrine is applied flexibly” (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 658), “in carefully considered situations to prevent the unjust technical forfeiture of causes of action, where the defendant would suffer no prejudice.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) “Where applicable, the doctrine will ‘suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness,’ ” but “it is not immune to the operation of such statutes.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99, 105.) We agree the circumstances of this case do not warrant equitable tolling of a limitations period that has been expired for more than 20 years.

To support her argument, Fox cites and quotes several cases without discussing how they might control or apply, and she refers us to her briefing in the superior court. “ ‘We are not bound to develop appellants’ arguments for them.’ ” (Cahill, supra, 194 Cal.App.4th at p. 956.) In any event, the cases she cites are distinguishable: This is not a case where the limitations period expired while she reasonably pursued alternative remedies in a different forum (Addison v. State of California (1978) 21 Cal.3d 313, 315–316 [federal court]; Elkins v. Derby (1974) 12 Cal.3d 410, 412, 420 [state board]; Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 919 [same]; McDonald v. Antelope Valley Community College Dist., supra, 45 Cal.4th at p. 96 [local board]); or while she pursued the same remedies in the same forum after an erroneous dismissal (Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399, 410–411; see Wood v. Elling Corp. (1977) 20 Cal.3d 353, 361 [limiting Bollinger to cases involving “the concurrence of the three factors . . . therein”]); or while she pursued a class action for the same claims (Hatfield v. Halifax PLC (9th Cir. 2009) 564 F.3d 1177, 1184–1185). Further, none of the cases cited by Fox applied the doctrine to the limitations period in section 337.5 for a posttrial action on a judgment. “[T]he purpose of [equitable tolling] is to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.” (Addison, at p. 316.) Fox not only had her day in court, she won (albeit by default).

E. Equitable Estoppel Does Not Apply
F.
Fox argues Forster should be equitably estopped from asserting the statute of limitations at all. We agree with Forster the doctrine does not apply. Equitable estoppel prevents a defendant “ ‘ “from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period.” ’ ” (Lantzy v. Centex Homes, supra, 31 Cal.4th at p. 383.) To apply, the doctrine “generally requires an affirmative representation or act . . . .” (J.M. v. Huntington Beach Union High School Dist., supra, 2 Cal.5th at p. 657.) Fox does not argue Forster ever said or did anything that influenced her not to pursue enforcement of the judgment. In fact, she admits they had no contact for “many years” after the accident.

G. Maxims of Jurisprudence Do Not Compel a Different Result
H.
Fox argues, “Principles of equity and maxims of jurisprudence should result in the sister state judgment being enforceable, because ‘For every wrong the law provides a remedy,’ and ‘No one may profit from his own wrongdoing.’ ” (Underscoring omitted.) The maxims Fox relies on (Civ. Code, §§ 3517, 3523) are “an interpretative canon for construing statutes, not a means for invalidating them.” (National Shooting Sports Foundation, Inc. v. State of California (2018) 5 Cal.5th 428, 433.) Moreover, neither maxim applies here. “[T]he ‘clean hands’ doctrine operates only against one who seeks active intervention of the court and should not be applied to a defendant who is not voluntarily seeking relief in equity but was merely brought there at the suit of another [citations].” (Behm v. Fireside Thrift. Co. (1969) 272 Cal.App.2d 15, 22.) “The maxim, ‘for every wrong there is a remedy’ [citation] is not to be regarded as affording a second remedy to a party who has lost the remedy provided by law through failing to invoke it in time . . . .” (People v. Reid (1924) 195 Cal. 249, 260, overruled on another ground in People v. Hutchinson (1969) 71 Cal.2d 342, 347–348, 351.) “[S]tatutes of limitations are not mere technical defenses, allowing wrongdoers to avoid accountability. . . . ‘[T]he period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.’ ” (Pooshs v. Philip Morris USA, Inc., supra, 51 Cal.4th at p. 797.)

I. The Victims’ Bill of Rights Does Not Apply
J.
Finally, Fox argues, “The California Constitution, criminal law, and public policy establish that a judgment for damages resulting from criminal [conduct] . . . remains enforceable in perpetuity until it is paid in full.” Although she made this argument in the superior court, she forfeits it on appeal because she raises it for the first time in her reply brief. (California Building Industry Assn. v. State Water Resources Control Bd., supra, 4 Cal.5th at p. 1050.) In any event, the argument lacks merit. The Victims’ Bill of Rights entitles “all persons who suffer losses as a result of criminal activity” to restitution “from the persons convicted of the crimes causing the losses they suffer.” (Cal. Const., art. I, § 28, subd. (b), par. (13)(A); see Pen. Code, § 1202.4, subd. (a)(1) [same].) But the record does not show Forster was convicted of any crime against Fox, and according to Fox “he never went to trial.” Regardless, as the court correctly noted, the restitution that Fox argues is constitutionally and statutorily mandated is restitution ordered in criminal proceedings in California courts. (See Cal. Const., art. I, § 28, subd. (a), pars. (1) [“in criminal prosecutions”], (4) [“before the courts of California”]; Pen. Code, §§ 690 [part 2 of the Penal Code, which includes § 1202.4, applies to “criminal actions and proceedings”], 1202.4, subd. (a)(2) [“in the State of California”].) While Fox is correct that a crime victim’s right to restitution is well established, the law she cites does not apply to the civil judgment she obtained in an Alaska court.

DISPOSITION

The order of June 29, 2018, vacating the entry of the judgment is affirmed. 

_________________________

Siggins, P. J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Jackson, J.

A154906/Fox v. Forster