Kevorkian v. Hurlbutt CA5 ( 2014 )


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  • Filed 10/9/14 Kevorkian v. Hurlbutt CA5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
    FIFTH APPELLATE DISTRICT
    LOUANNA FERN KEVORKIAN et al.,
    F067109
    Plaintiffs and Appellants,
    (Super. Ct. No. 11-245333)
    v.
    JAMES P. HURLBUTT,                                                                       OPINION
    Defendant and Respondent.
    APPEAL from a judgment of the Superior Court of Tulare County. Paul A.
    Vortmann, Judge.
    Joel M. Murillo for Plaintiffs and Appellants.
    McCormick, Barstow, Sheppard, Wayte & Carruth, Lowell T. Carruth and Scott
    M. Reddie for Defendant and Respondent.
    -ooOoo-
    Plaintiffs Louanna Kevorkian and Lynne Petersdorf were parties to two lawsuits
    involving the distribution of their deceased mother’s estate. The suits were settled after
    years of litigation, but Kevorkian and Petersdorf afterward became dissatisfied with their
    attorney, defendant James Hurlbutt, and brought the present suit against him, alleging
    fraud and elder abuse. The trial court granted Hurlbutt’s motion for summary judgment.
    It determined that plaintiffs failed to raise triable issues of material fact and that the
    statute of limitations had expired. We affirm.
    FACTS AND PROCEDURAL HISTORY
    Kevorkian, age 76, and Petersdorf, age 64, are sisters. Their mother, Hazel Todd,
    died on March 13, 2002, and Kevorkian became trustee of Todd’s living trust. A probate
    matter, In re Hazel J. Todd Living Trust (Super. Ct. Tulare County, 2003, No. 03-
    206315), was filed in Tulare County Superior Court in 2003. A dispute arose over real
    property that had been owned by Todd, leading to a separate lawsuit against Kevorkian
    and Petersdorf by their sister Esther Hoover. Hoover filed the complaint in Hoover v.
    Kevorkian (Super. Ct. Tulare County, 2005, No. 05-214266) in Tulare County Superior
    Court on May 4, 2005.
    Hurlbutt represented Kevorkian and Petersdorf in both matters. He signed a
    representation agreement with both clients for Hoover v. Kevorkian on July 11, 2005, and
    filed a substitution of attorney in the superior court for both clients in In re Hazel J. Todd
    Living Trust the same month.
    The parties reached a settlement agreement in Hoover v. Kevorkian after a
    mediation with a retired judge, Howard Broadman, on January 26, 2006. That action was
    dismissed on March 6, 2006, pursuant to the settlement. The parties reached a settlement
    in In re Hazel J. Todd Living Trust on November 9, 2009, also following a mediation
    with Broadman.
    On December 15, 2011, Kevorkian and Petersdorf filed their original complaint in
    the present case, naming Hurlbutt and Broadman as defendants. The complaint alleged
    that Hurlbutt and Broadman “force[d] [Kevorkian and Petersdorf] into a settlement that
    was not of their own free will” by “threatening, berating, yelling at, and exerting undue
    influence” on them. The mediation of November 9, 2009, “was conducted over the
    objections” of Kevorkian and Petersdorf. Kevorkian and Petersdorf were “financially
    distressed, and suffered mental and physical infirmities” that made them “fragile and
    2.
    susceptible to mental and emotional distress .…” Hurlbutt “billed for services that were
    not performed or performed over and over again without any purpose other than to churn
    out more fees.” Broadman also “charg[ed] for work that he did not perform” and charged
    “twice for the same work .…” The complaint alleged that Hurlbutt “orally made a
    warranty that his attorney’s fees would not exceed forty thousand dollars .…” (It did not,
    however, allege he actually charged more than that.) The complaint alleged two causes
    of action: (1) violation of the Elder Abuse and Dependent Adult Civil Protection Act
    (Welf. & Inst. Code, § 15600 et seq.); and (2) conspiracy to commit fraud.
    Broadman filed a motion to strike the complaint based on the anti-SLAPP statute
    (Code Civ. Proc., § 425.16), the mediation confidentiality statute (Evid. Code, § 1119),
    and the litigation privilege (Civ. Code, § 47). The motion was granted and the case was
    dismissed as to Broadman.
    Hurlbutt demurred. His demurrer was sustained with leave to amend.
    Plaintiffs filed an amended complaint on March 9, 2012. It omitted the allegation
    that Hurlbutt promised his fees would not exceed $40,000, instead claiming that Hurlbutt
    promised a cap of $20,000 but had in reality billed more than $66,000. The claims that
    Hurlbutt billed for services not performed and performed needless work to “churn” fees
    and intentionally prolonged the litigation to increase his fees remained, as did the
    allegations that Hurlbutt used overbearing pressure to drive plaintiffs to accept a
    disadvantageous settlement against their will at the mediation on November 9, 2009.
    There were now three causes of action: (1) fraud and deceit in violation of the Elder
    Abuse and Dependent Adult Civil Protection Act; (2) constructive fraud; and
    (3) conspiracy to commit fraud. The amended complaint mentioned the fact that, in July
    2011, Hurlbutt had filed a lawsuit against Kevorkian for unpaid fees. The filing of this
    suit was described as the “last overt act” in the constructive fraud and the conspiracy.
    3.
    Hurlbutt filed a motion to strike from the amended complaint all references to the
    mediation proceedings in which Kevorkian and Petersdorf were allegedly pressured to
    settle. The motion was granted.
    Hurlbutt filed two separate motions for summary judgment, one for Kevorkian and
    one for Petersdorf. On the merits of plaintiffs’ claims, the motions argued as follows:
    Plaintiffs would be unable to produce any evidence that Hurlbutt performed unnecessary
    work, billed for work not performed, deliberately prolonged the litigation, or conspired
    with Broadman to do any of those things. Plaintiffs would be unable to establish
    anything about any improper conduct related to the mediation or the November 9, 2009
    settlement, because the court had granted Hurlbutt’s motion to strike all references to
    those matters. Hurlbutt’s declaration stated that he never promised to cap his fees at
    $20,000. The motion for Petersdorf stated that all invoices had been submitted to, and all
    payments received from, Kevorkian alone, so Petersdorf could not establish any damages
    from any of the alleged conduct related to overbilling or performance of unnecessary
    work.
    The motions also argued that plaintiffs’ claims were barred by the statute of
    limitations. The three-year limitations period of Code of Civil Procedure section 338,
    subdivision (d), applied to plaintiffs’ first cause of action for fraud. This period began
    running no later than March 2007 when Kevorkian (who had a degree in accounting and
    was retired from a career as controller of a large company) had received and paid
    invoices from Hurlbutt exceeding a total of $20,000, and therefore should have been
    aware of the basis of her claim that Hurlbutt breached a promise to cap his fees at that
    amount. (Kevorkian had received and acknowledged bills from Hurlbutt exceeding
    $20,000 even earlier, in May 2006.) Plaintiffs filed their complaint on December 15,
    2011, more than four years later. Regarding Petersdorf, Hurlbutt argued that the cause of
    action for fraud accrued even earlier, in April 2006, when he informed her that he would
    no longer be representing her in In re Hazel J. Todd Living Trust. His representation in
    4.
    Hoover v. Kevorkian had by then already ended in a settlement. He argued that
    Petersdorf should have been aware of the basis of her claims by that time. If Petersdorf
    was claiming later accrual based on a contention that she could not reasonably have
    known of the basis of her claims until a later time, it was her burden to plead and prove
    this.
    Hurlbutt contended that the second cause of action, constructive fraud, was subject
    to Code of Civil Procedure section 340.6. That section provides a one-year limitations
    period for claims against lawyers arising from their professional services, other than
    claims for actual fraud. This period is tolled during the representation. Kevorkian knew
    of Hurlbutt’s alleged lapses by the time of letters she wrote to him on November 23, 2009
    and October 25, 2010, complaining about the 2009 settlement, disputing Hurlbutt’s fees,
    and expressing dissatisfaction about other aspects of Hurlbutt’s representation.
    Hurlbutt’s representation in Hoover v. Kevorkian ended in 2006 and he obtained an order
    granting his motion to withdraw as counsel in In re Hazel J. Todd Living Trust on
    January 13, 2010. The latest of all these dates, October 25, 2010, was more than one year
    before the complaint was filed. Hurlbutt also argued that Petersdorf should have known
    of the basis of her claims more than a year before the complaint was filed. She should
    have known no later than the time he told her he would no longer represent her in 2006 or
    the time In re Hazel J. Todd Living Trust was settled in 2009.
    Plaintiffs’ brief opposing the motions for summary judgment focused on
    allegations intended to show that Hurlbutt took advantage of plaintiffs’ vulnerabilities. It
    stated, for instance, that Kevorkian wrote to Hurlbutt to say that she was going into debt
    and liquidating retirement savings to finance the litigation and that she was determined
    not to settle. Hurlbutt, however, billed her for a substantial amount of time spent on
    settlement efforts. When the settlement took place on November 9, 2009, Kevorkian
    became “incapacitated due to mental stress .…” Plaintiffs also argued that Hurlbutt
    “committed financial abuse [by way of] the ‘nickel-and-dime’ technique.” For example,
    5.
    over the years, he raised his hourly rate from $200 to $210 and then $220; and his
    invoices stated terms of 1 percent net 30 days, which exceeds the statutory rate for
    prejudgment interest.
    Plaintiffs’ brief opposing the motions further argued that the four-year statute of
    limitations in the Elder Abuse and Dependent Adult Civil Protection Act applied. (Welf.
    & Inst. Code, § 15657.7.) The brief did not, however, contain any argument about when
    the cause of action accrued or any attempt to explain when the four-year period expired.
    The evidence submitted by plaintiffs in support of their opposition consisted of
    Kevorkian’s declaration, a letter from Kevorkian to Hurlbutt dated November 23, 2009,
    and some medical records. The declaration stated that Kevorkian, being over 65 at all
    relevant times, was an elder within the meaning of the Elder Abuse and Dependent Adult
    Civil Protection Act, while Petersdorf was mentally ill. When Hurlbutt withdrew from
    representation of Petersdorf, his decision to do so was unilateral and Kevorkian was
    surprised by it. Hurlbutt promised to cap his fees at $20,000, and when his billings
    exceeded that amount, Kevorkian felt trapped because it would be even more costly to
    retain a new lawyer who would have to learn about the case from scratch. The
    November 9, 2009 mediation, which resulted in settlement, was originally planned as an
    arbitration. It was unexpectedly converted to a mediation by Broadman. Kevorkian was
    traumatized by the events of that day and considered the settlement disadvantageous.
    Kevorkian’s letter claimed that Hurlbutt and Broadman forced Kevorkian to sign the
    settlement agreement on November 9, 2009. She was in an emotional state and they were
    taller and heavier than she was. She “knew” they would not “let [her] leave without
    signing the agreement.” Petersdorf joined them in urging her to sign. Hurlbutt “never
    defended” Kevorkian. The sisters who had sued Kevorkian and Petersdorf were getting
    too much. Hurlbutt and Broadman promised that Kevorkian’s sisters would never be
    able to contact her again, but no restraining order was issued and contacts continued.
    Kevorkian believed the change from arbitration to mediation was illegal and Hurlbutt
    6.
    was ineffective in dealing with Broadman’s pressure to settle. Kevorkian closed the letter
    by agreeing to a $3,000 fee payment Hurlbutt had requested.
    Plaintiffs’ opposition to the motions for summary judgment included a response to
    Hurlbutt’s separate statement of undisputed facts. This response did not, however,
    meaningfully dispute any of Hurlbutt’s claimed facts. Instead, it either said nothing in
    response to each fact, made a statement effectively conceding the fact, or purported to
    dispute the fact on grounds irrelevant to it. For instance, where Hurlbutt’s statement
    asserts that he told Petersdorf in April 2006 that he was no longer representing her,
    plaintiffs’ response does not contest this, but says plaintiffs were surprised by it and felt
    “boxed into a dilemma .…” Similarly, where Hurlbutt’s statement says Hurlbutt never
    billed Petersdorf, plaintiffs’ response does not dispute this fact, instead saying that
    Kevorkian paid Hurlbutt on behalf of Petersdorf and herself. Where Hurlbutt states that
    the original complaint was filed on December 15, 2011, plaintiffs’ response denies this
    for reasons that are unresponsive: “False. The statute of limitations is four years
    pursuant to Welfare and Institutions (W&I) Code Sections 15600 et seq.”
    Plaintiffs’ response to Hurlbutt’s separate statement also failed to state any
    additional facts plaintiffs were purporting to place in dispute. The key allegations of the
    complaint—that Hurlbutt made a false promise to cap his fees and that he billed for
    unnecessary work and work not performed—are unsupported by any facts in plaintiffs’
    response to the separate statement.
    The court filed two orders, one granting the motion for summary judgment as to
    Kevorkian and one granting the motion as to Petersdorf. For both, the court stated that
    plaintiffs failed to dispute adequately any of Hurlbutt’s claimed undisputed facts.
    On the statute of limitations, the court stated that Kevorkian knew or should have
    known of her causes of action by May 27, 2006, when she had incurred and
    acknowledged more than $20,000 in Hurlbutt’s fees. Hurlbutt’s motion to withdraw as
    Kevorkian’s counsel was granted on January 13, 2010. The one-year limitations period
    7.
    of Code of Civil Procedure section 340.6 applied to all causes of action except actual
    fraud, and this period expired on January 13, 2011, one year after counsel was relieved
    by order of the court. That was almost a year before the original complaint was filed on
    December 15, 2011. For the actual fraud cause of action, both the three-year limitations
    period for fraud and the four-year period for elder abuse had expired. The three-year
    period expired on May 27, 2009, and the four-year period on May 27, 2010. The court
    rejected plaintiffs’ suggestion that the limitations period was tolled because of
    Kevorkian’s mental state. It sustained Hurlbutt’s objections to Kevorkian’s evidence on
    this point and ruled that Kevorkian failed to raise a triable issue as to whether she was
    “insane” within the meaning of Code of Civil Procedure section 352.
    As to Petersdorf, the court stated that her brief opposing the motion admitted that
    Kevorkian had incurred and acknowledged more than $20,000 in Hurlbutt’s fees by
    May 27, 2006, and that Petersdorf did not dispute that Hurlbutt told her he was no longer
    representing her by April 13, 2006. Her causes of action accrued no later than the later of
    these two dates, so all of the arguable limitations periods—one year, three years, and four
    years—had expired by the time the original complaint was filed on December 15, 2011.
    Finally, the court stated that, to the extent plaintiffs were claiming that Hurlbutt
    failed to provide professionally reasonable services, their claim was defeated by their
    failure to submit an expert declaration.
    The appellate record does not include any judgment following the orders granting
    Hurlbutt’s motions.
    DISCUSSION
    I.     Appealability
    It is settled that an appeal lies not from an order granting summary judgment but
    from the judgment that follows the order. (Levy v. Skywalker Sound (2003) 
    108 Cal. App. 4th 753
    , 761, fn. 7.) Because plaintiffs have failed to include the judgment in
    the appellate record and state that their appeal is from the orders granting Hurlbutt’s
    8.
    motions, this appeal is subject to dismissal. We have discretion, however, to decide the
    appeal instead of dismissing it, by deeming the orders to incorporate a judgment and
    interpreting the appeal as being from that judgment. (Avila v. Standard Oil Co. (1985)
    
    167 Cal. App. 3d 441
    , 445.) Dismissing the appeal in this instance would serve no
    purpose and would cause delay, so we exercise our discretion not to do so. (See Levy v.
    Skywalker 
    Sound, supra
    , at p. 761, fn. 7.)
    II.    Standard of review
    Our review of the ruling on a summary judgment motion is de novo. (Aguilar v.
    Atlantic Richfield Co. (2001) 
    25 Cal. 4th 826
    , 860.) We independently review the record
    and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 
    58 Cal. App. 4th 915
    , 925.) The trial court must grant the motion if “all the papers submitted
    show that there is no triable issue as to any material fact and that the moving party is
    entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “There is
    a triable issue of material fact if, and only if, the evidence would allow a reasonable trier
    of fact to find the underlying fact in favor of the party opposing the motion in accordance
    with the applicable standard of proof.” (Aguilar v. Atlantic Richfield 
    Co., supra
    , at
    p. 850.) We view the facts in the light most favorable to the nonmoving parties and
    assume that, for purposes of our analysis, their version of all disputed facts is correct.
    (Sheffield v. Los Angeles County Dept. of Social Services (2003) 
    109 Cal. App. 4th 153
    ,
    159.) We are not limited by the theory relied upon by the trial court in granting the
    motion and may base an affirmance on any correct theory applicable to the case.
    (Western Mutual Ins. Co. v. Yamamoto (1994) 
    29 Cal. App. 4th 1474
    , 1481.)
    III.   Summary judgment motion: merits
    A motion for summary judgment is framed by the issues presented in the
    pleadings. A defendant moving for summary judgment need only address issues raised in
    the complaint. (Laabs v. City of Victorville (2008) 
    163 Cal. App. 4th 1242
    , 1253.)
    9.
    Omitting matters stricken because they pertained to the mediation, the issues
    raised in the amended complaint are as follows: (1) Hurlbutt committed intentional fraud
    and violated the Elder Abuse and Dependent Adult Civil Protection Act by (a) falsely
    promising to cap his fees at $20,000 and then billing and receiving more; (b) billing for
    work not performed; and (c) churning, i.e., performing work not reasonably necessary to
    carry out the representation. (2) Hurlbutt committed constructive fraud because he
    breached his professional duty to his clients by engaging in the above conduct.
    (3) Hurlbutt conspired with Broadman to perform unnecessary work.
    Plaintiffs’ opposition to the motions for summary judgment proffered no evidence
    of any of this conduct except the alleged fraudulent promise to cap fees, which is
    described in Kevorkian’s declaration. Leaving the statute of limitations aside for the
    moment, we might have found a triable issue about that alleged promise, but for one
    thing: Plaintiffs never mentioned that promise in their response to Hurlbutt’s separate
    statement of undisputed facts. A plaintiff opposing a motion for summary judgment is
    required to respond to the moving party’s separate statement of undisputed facts and
    must include in that response a statement of facts claimed to be disputed:
    “The opposition papers shall include a separate statement that
    responds to each of the material facts contended by the moving party to be
    undisputed, indicating whether the opposing party agrees or disagrees that
    those facts are undisputed. The statement also shall set forth plainly and
    concisely any other material facts that the opposing party contends are
    disputed. Each material fact contended by the opposing party to be
    disputed shall be followed by a reference to the supporting evidence.
    Failure to comply with this requirement of a separate statement may
    constitute a sufficient ground, in the court’s discretion, for granting the
    motion.” (Code Civ. Proc., § 437c, subd. (b)(3).)
    The Court of Appeal applied these requirements in North Coast Business Park v.
    Nielsen Construction Co. (1993) 
    17 Cal. App. 4th 22
    , 30-31. It stated: “‘“This is the
    Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it
    does not exist.”’ [Citation.] Thus, [it does not matter whether a fact relied on by the
    10.
    nonmoving party appears elsewhere], because the statutory purposes [of Code of Civil
    Procedure section 473c] are not furthered by unhighlighted facts.”
    Plaintiffs failed to conform to these requirements in two ways: (1) They did not
    include in their separate statement the claim that Hurlbutt falsely promised to cap his
    fees—the only allegedly disputed fact that was both relevant to an issue raised in the
    complaint and supported by proffered evidence; and (2) they did not include in their
    separate statement any meaningful dispute of the facts claimed by Hurlbutt to be
    undisputed. For these reasons, we agree with the first conclusion in the trial court’s
    orders: that plaintiffs did not show the existence of any triable factual dispute on the
    merits.
    With respect to Petersdorf, there is an additional reason why the summary
    judgment motion was properly granted. It is undisputed that Hurlbutt never billed or
    received payment from Petersdorf. Plaintiffs’ response to Hurlbutt’s separate statement
    of undisputed facts stated that Kevorkian paid Hurlbutt on Petersdorf’s behalf as well as
    her own, but plaintiffs never asserted that Kevorkian paid any invoices issued to
    Petersdorf or used Petersdorf’s funds. All the invoices from Hurlbutt that are included in
    the appellate record are addressed to Kevorkian alone. All the allegations in the amended
    complaint (except those that were stricken) related to fees for Hurlbutt’s services, so there
    are no disputed facts on the basis of which Petersdorf could prove any damages.
    Finally, plaintiffs’ appellate briefs address only the statute of limitations and do
    not challenge the trial court’s conclusion that they did not succeed in raising triable facts
    on the merits. The challenge to that conclusion consequently is forfeited, and it is a
    matter of discretion that we address it at all. (In re Sheena K. (2007) 
    40 Cal. 4th 875
    , 887,
    fn. 7; Reyes v. Kosha (1998) 
    65 Cal. App. 4th 451
    , 466, fn. 6.)
    IV.       Summary judgment motions: statute of limitations
    On the issue of the statute of limitations, the sole argument in plaintiffs’
    opposition to the motions was that the four-year period set forth in the Elder Abuse and
    11.
    Dependent Adult Civil Protection Act applied. We agree with the trial court’s conclusion
    that, assuming it applied, this period had expired as to Kevorkian by the time the original
    complaint was filed.
    The cause of action for financial abuse of an elder or dependent adult accrued
    when plaintiffs discovered or with reasonable diligence should have discovered the facts
    constituting financial abuse. (Welf. & Inst. Code, § 15657.7.) It is undisputed that
    Kevorkian had been billed for and had paid more than $20,000 in Hurlbutt’s fees by May
    2006. In opposing the motions, plaintiffs proffered no evidence indicating that
    reasonable diligence could have uncovered the alleged injury only at a later time.
    Plaintiffs proffered no evidence that Hurlbutt churned or billed for unperformed work
    later than May 2006 (or at any other time). Allegations concerning later events—i.e., the
    2009 mediation and settlement—were stricken from the complaint.
    The limitations question is somewhat more complex with respect to Petersdorf,
    who was never billed and never made payments. Hurlbutt filed a substitution of attorney
    indicating his representation of Petersdorf in In re Hazel J. Todd Living Trust in 2005. In
    2006 he told her he was no longer representing her, but he does not claim he ever
    obtained her consent or the court’s leave to withdraw. So far as the appellate record
    discloses, Hurlbutt remained counsel of record for Petersdorf. If Code of Civil Procedure
    section 340.6 (with its provision tolling the running of the limitations period during an
    attorney’s representation of a client) were held to apply at least to Petersdorf’s cause of
    action for constructive fraud, then the complaint would be timely filed if Hurlbutt’s
    representation were deemed to have lasted at least until December 15, 2010, one year
    before the filing date. As we have explained, however, the trial court correctly granted
    summary judgment against both plaintiffs on the merits, so we need not pursue this
    inquiry further.
    The sole argument in plaintiffs’ appellate briefs is that plaintiffs’ causes of action
    accrued continuously during the period in which Hurlbutt billed Kevorkian, which lasted
    12.
    until September 29, 2010. Plaintiffs say “each invoice and statement was a separate,
    recurring invasion of the same right, each of which triggers its own statute of
    limitations.” They cite Aryeh v. Canon Business Solutions, Inc. (2013) 
    55 Cal. 4th 1185
    ,
    1198, in which our Supreme Court explained that the continuous-accrual doctrine “is a
    response to the inequities that would arise if the expiration of the limitations period
    following a first breach of duty or instance of misconduct were treated as sufficient to bar
    suit for any subsequent breach or misconduct .…” Plaintiffs contend that, under the
    continuous-accrual doctrine, the four-year limitations period set forth in the Elder Abuse
    and Dependent Adult Civil Protection Act began running on September 29, 2010, and
    still has not expired.
    Plaintiffs did not raise the continuous-accrual doctrine or present any facts in
    support of it in their opposition to the summary judgment motions in the trial court.
    Consequently, as Hurlbutt argues, the issue is forfeited for two distinct reasons. First, we
    do not ordinarily consider issues raised for the first time on appeal. (People v. Saunders
    (1993) 
    5 Cal. 4th 580
    , 590; Doers v. Golden Gate Bridge etc. Dist. (1979) 
    23 Cal. 3d 180
    ,
    184-185, fn. 1.) Second, as we have mentioned, parties opposing a motion for summary
    judgment cannot rely on facts they failed to highlight in their separate statement of
    disputed facts.
    At oral argument, plaintiffs’ counsel argued that plaintiffs could not avail
    themselves of the continuous-accrual doctrine in the trial court because the California
    Supreme Court had not yet declared that doctrine. In saying this, counsel apparently was
    referring to Aryeh v. Canon Business Solutions, 
    Inc., supra
    , 
    55 Cal. 4th 1185
    , which he
    cited in his opening brief, and which was decided after the trial court proceedings here. It
    is far from being the case, however, that the Supreme Court created the continuous-
    accrual doctrine in 2013. In Aryeh, the court reaffirmed a doctrine that was “long
    settled,” citing its own cases going back to 1936. (Id. at p. 1198.)
    13.
    At oral argument counsel also implied that he presented the continuous-accrual
    theory to the trial court and the trial court rejected it. Yet plaintiffs’ papers opposing the
    summary judgment motions contain no reference to the doctrine, and counsel has not
    pointed to any place in the record where the court referred to it.
    DISPOSITION
    The judgment is affirmed. Respondent Hurlbutt is awarded costs on appeal.
    _____________________
    Kane, J.
    WE CONCUR:
    _____________________
    Levy, Acting P.J.
    _____________________
    Detjen, J.
    14.
    

Document Info

Docket Number: F067109

Filed Date: 10/9/2014

Precedential Status: Non-Precedential

Modified Date: 4/17/2021