CIV468937 TOYOTA MOTOR CREDIT CORPORATION VS. MARSHALL A. MASOLI

TOYOTA MOTOR CREDIT CORPORATION MARSHALL A. MASOLI
LE T. DUONG FRED W. SCHWINN

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION BY TOYOTA MOTOR CREDIT CORPORATION TENTATIVE RULING:

Plaintiff and Cross-Defendant Toyota Motor Credit Corporation’s (“TMCC”) motion for summary adjudication as to Defendant and Cross-Complainant Masoli’s first cause of action for violation of the Automotive Sales Finance Act is GRANTED.

With respect to this cause of action, Masoli alleges that “Cross-Defendants failed to send Cross-Complainant a Notice of Intention to Sell Repossessed Vehicle that truthfully and accurately set forth ‘all the conditions precedent’ to reinstatement of the Retail Installment Sale Contract in violation of Cal. Civil Code § 2983.2(a)(2).” Cross-Complaint, ¶ 69. Masoli, however, does not allege or explain how the notice, which is attached as Exhibit B to the cross-complaint, was deficient. Accordingly, Masoli has not demonstrated a violation of CCP § 2983.2(a)(2).

Additionally, Masoli’s first cause of action for violation of CCP § 2983.2(a)(2) is barred by the one-year statute of limitations applicable to actions “upon a statute for a penalty or forfeiture” under CCP § 340(a). “A forfeiture is ‘[t]he divestiture of property without compensation’ or ‘[t]he loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty.’” Brandenburg v. Eureka Redevelopment Agency, 152 Cal. App. 4th 1350, 1364 (2007). Because CCP § 2983.2(a)(2) bars collection of a deficiency judgment if the requirements of the statute are not met, the statute provides for a forfeiture, and the one-year statute of limitations set forth in CCP § 340(a) applies.

Masoli contends that “Because TMCC filed its Complaint in this action on December 31, 2007, Masoli’s causes of action relate back to that original date of filing.” Opposition, p.7. He has presented authority indicating that the statute is tolled “during the pendency of the action.” ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd., 5 Cal. App. 5th 69, 84 (Ct. App. 2016). In the present case, however, judgment was entered in June 2009, and no further action was taken until a writ of execution was issued in November 2014. The judgment was vacated pursuant to stipulation of the parties in June 2017. Accordingly, between June 2009 and June 2017, this action was no longer “pending.” Masoli provides no authority indicating that the statute of limitations is tolled following entry of judgment. Accordingly, Masoli has not demonstrated that this cause of action is timely under the “relation back” doctrine.

Masoli also contends this cause of action is timely under the continuing violation doctrine. The court disagrees. The doctrine permits recovery “for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period.” Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal. App. 4th 324, 343 (2009). Masoli has asserted no allegations that would amount to a continuing violation of the statute. Indeed, Masoli has alleged a single violation of the statute, and that violation could have occurred no later than entry of the judgment in this case.

TMCC’s motion for summary adjudication as to Masoli’s second cause of action for violation of the Rosenthal Fair Debt Collection Practices Act is DENIED.

TMCC contends this cause of action is barred by the one-year statute of limitations set forth in CCP § 1788.30(f) and that Masoli cannot demonstrate that the limitation period was extended under the continuing violation doctrine. The court does not agree. This issue was addressed in Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal. App. 4th 324, 344. In that case, the court stated “Use of judicial proceedings to collect a debt without service of process (§ 1788.15, subd. (a)) will also be a continuing course of conduct insofar as the conduct involves multiple acts, such as obtaining and collecting on a judgment, that extend over a period of time before the proceedings are concluded.” Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal. App. 4th 324, 344 (2009). Masoli has alleged that TMCC is attempting to collect a debt with knowledge of defective service of process, and that those collection efforts have continued by means of TMCC’s actions in these proceedings. TMCC does not contend that Masoli has failed to raise a genuine issue of triable fact with respect to whether service of process was defective or whether TMCC had knowledge of the defective service. Accordingly, under the authority of Komarova, the court finds a genuine issue of triable fact as to whether Masoli’s cause of action for violation of CCP § 1788, et seq. has been timely asserted.

TMCC’s motion for summary adjudication as to Masoli’s third cause of action for conversion is GRANTED.

According to the cross-complaint, TMCC “sold, transferred, or otherwise wrongfully disposed of the vehicle” and “At no time did [Masoli] consent to [TMCC’s] sale or disposition of the vehicle.” Cross-complaint, ¶¶ 87, 88. The evidence indicates, however, that Masoli consented to the repossession of his vehicle. Indeed, Masoli does not dispute that “Neither Masoli nor his daughter wanted to pay for repairs to the vehicle after the accident. He instructed his Wife to tell TMCC to repossess the vehicle. Masoli understood that he was not going to get the vehicle back after it was repossessed.” UMF ¶ 6.

Accordingly, Masoli has failed to raise a triable issue of fact with respect to whether he demonstrated a lack of consent to repossession of the vehicle. As a result, his cause of action for conversion fails. Farrington v. A. Teichert & Son, Inc. (1943) 59 CA2d 468, 474, 139 P2d 80, 82-83 (“the law is well settled that there can be no conversion where an owner either expressly or impliedly assents to or ratifies the taking, use or disposition of his property”).

Additionally, the cause of action is time-barred by the three-year statute of limitations applicable to claims for conversion. Masoli has provided no authority indicating that the relation back doctrine operates to toll the applicable statute of limitations following entry of judgment, and he has alleged no facts which would support application of the continuing violation doctrine.

In accordance with the foregoing rulings, TMCC’s motion for summary judgment is DENIED.

The parties’ Requests for Judicial Notice are GRANTED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff and Cross-Defendant TMCC shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.