Eleanor Licensing LLC v. Classic Recreations LLC

Filed 3/21/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ELEANOR LICENSING LLC B275429 and B279238
et al.,
(Los Angeles County
Plaintiffs and Super. Ct. No. EC062924)
Respondents,
v.
CLASSIC RECREATIONS LLC
et al.,
Defendants and
Appellants.
APPEALS from judgment of the Superior Court of
Los Angeles County. William D. Stewart, Judge. Reversed in
part and affirmed in part.
Haight Brown & Bonesteel, Bruce Cleeland, William O.
Martin, Jr., Vangi M. Johnson and Kristian Moriarty for
Defendants and Appellants Classic Recreations, LLC, T&D Motor
Company, Jason Engel and Tony Engel.
Morris Polich & Purdy , David L. Brandon, Neda Cate;
Greines, Martin, Stein & Richland, Timothy T. Coates and
Jonathan H. Eisenman for Plaintiffs and Respondents Eleanor
Licensing, LLC and Denice Shakarian Halicki.
___________________
Following a four-day bench trial, the court entered
judgment in favor of Eleanor Licensing LLC and Denice
Shakarian Halicki and against Classic Recreations, LLC, T&D
Motor Company, Jason Engel and Tony Engel (collectively
Classic), ordering that Eleanor Licensing retain possession of a
vehicle identified as “Eleanor No. 1,” which had been
manufactured by Classic pursuant to a licensing agreement
between the parties; quieting title to the vehicle in Eleanor
Licensing; directing Classic to perform according to the terms of
the licensing agreement and transfer legal title to Eleanor No. 1
to Eleanor Licensing; and awarding damages of $6,657.75 and
attorney fees of $176,050. On appeal Classic contends the
licensing agreement was unenforceable due to lack of
consideration at the time of execution, the governing statutes of
limitation barred Eleanor Licensing and Halicki’s claims, and the
findings that Jason Engel and Tony Engel are the alter egos of
Classic Recreations and T&D Motor are not supported by
substantial evidence. We reverse the judgment to the extent it is
based on Eleanor Licensing and Halicki’s causes of action for
breach of contract, as well as the court’s alter ego findings, and
otherwise affirm the judgment and postjudgment order.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. The Gone in 60 Seconds Films and the November 1, 2007
License Agreement
The 1974 motion picture Gone in 60 Seconds was written,
directed and produced by H.B. “Toby” Halicki, who also starred in
1
the film. The movie featured a yellow 1971 Fastback Ford
Mustang, code named “Eleanor.” H.B. Halicki died in 1989 while
filming Gone in 60 Seconds 2. His widow, Denice Shakarian
Halicki, acquired intellectual property rights relating to “Gone in
60 Seconds” and “Eleanor” from H.B. Halicki’s estate.
A 2000 remake of Gone in 60 Seconds, released by
Hollywood Pictures, a division of Walt Disney Company,
pursuant to rights granted by Denice Shakarian Halicki in May
1995, starred Nicolas Cage and Angelina Jolie. Jerry
Bruckheimer produced the remake; Halicki was an executive
producer. The 2000 motion picture featured a customized 1967
Fastback Ford Mustang, which was also named “Eleanor.” The
vehicle was sometimes (erroneously) referred to in the film as a
1967 Shelby GT-500. In July 2007 Hollywood Pictures/Disney
executed a quitclaim to confirm that Halicki retained the
merchandising rights to “Gone in 60 Seconds” and “Eleanor.”
Halicki formed Eleanor Licensing in 2007 and on
October 31, 2007 granted the company a nonexclusive license to
her intellectual property rights, merchandising rights,
trademarks and copyrightable material relating to “Gone in
60 Seconds” and “Eleanor.” As of November 1, 2007 Eleanor
1
Our factual summary is based on the findings set forth in
the trial court’s statement of decision, which, except where noted,
are undisputed on appeal.
3
Licensing entered a license agreement with T&D Motor and
Classic Recreations granting T&D Motor and Classic Recreations
the right to use intellectual property rights, trademarks and
copyrightable material relating to “Gone in 60 Seconds” and
“Eleanor” to manufacture and sell 300 restored 1971, 1972 and
1973 Fastback Ford Mustangs fitted and detailed to replicate in
appearance the 1974 Eleanor and 1,000 restored 1967 and 1968
Fastback Ford Mustangs fitted and detailed to replicate in
appearance the 2000 Eleanor.
Pursuant to the license agreement T&D Motor and Classic
Recreations agreed to pay Eleanor Licensing a one-time fee of
$300,000, plus a royalty for each vehicle sold in accordance with a
schedule set forth in the agreement (but no less than 15 percent
2
of each vehicle’s sale price). Paragraph 9.3 of the license
agreement further provided, “Licensee agrees at Licensee’s
expense to give Licensor Number ‘1’ unit, Number ‘48’ unit and
Number ‘60’ unit of the original ‘Gone in 60 Seconds’ Eleanor
vehicle and Number ‘1’ unit, Number ‘47’ unit and Number ’60’
unit of the Remake 2000 Eleanor vehicle. [¶] (a) Licensor agrees
that the aforesaid samples of the Licensed Merchandise may be
used by Licensee in the promotions and car events with
Licensor’s approval and will be fully insured during such use and
during the transportation to and from such event.”
Paragraph 14.1, “Licensor’s Warranty,” part of the section
of the agreement entitled Warranties, Representations and
Indemnification, provided, “Licensor represents and warrants
that it has the right to enter into this Agreement: Should any
2
Classic eventually sold replicas for approximately
$2.7 million and paid Eleanor Licensing $340,000 in royalties.
4
third party assert a claim, demand, or cause of action against
Licensee contesting Licensor’s ownership of Licensed Properties
in relation to this Agreement, Licensor shall undertake and
conduct the defense of any such claim, demand or cause of
action.”
Paragraph 16.4(b) provided, in part, “Licensee is
responsible for any and all legal fees, collections costs, and/or
court costs incurred by Licensor in securing a remedy for any
breach of this Agreement by Licensee . . . .” Paragraph 23.5
required all disputes to be resolved by “binding, mandatory
arbitration subject and pursuant to the rules and procedures of
the American Arbitration Association.”
2. Delivery of the Sample Car
The Number 1 unit of the 2000 Eleanor replica described in
the licensing agreement (Eleanor No. 1 or the sample car) was
constructed in Yukon, Oklahoma, Classic’s place of business, and
3
moved from there to Halicki’s residence in February 2008.
Apparently neither license plates nor title documents were
delivered with the vehicle. On September 16, 2009 Michael
Leone, a consultant working with Halicki, emailed Jason Engel to
“remind you to please find and send Denice’s Eleanor title with
3
At times in the trial court Classic maintained this vehicle
was a prototype, not one of the sample cars described in
paragraph 9.3 of the license agreement. The trial court found
Jason Engel had “deliberately testified untruthfully” on this point
and, as a result, “determine[d] that his testimony on other facts is
not credible.” On appeal Classic does not reiterate its claim the
vehicle delivered to Halicki in February 2008 was not a sample
car to which she was entitled under the terms of the license
agreement.
5
her license plate.” When the license plate, but not the title
document, was sent, Leone again emailed Jason Engel, noting
“Denice’s title to Eleanor . . . wasn’t in the fedex [sic] with
Eleanor’s License plate (tag). What happened? Please check into
this.” Jason Engel responded, “Mike it should have been. I’ll find
it and send it out.”
3. The Shelby Litigation
In April 2004 the United States Patent and Trademark
Office issued a certificate of registration to the Carroll Hall
Shelby Trust (Shelby) for the trademark “Eleanor” for use with
automobiles and structural parts of automobiles. Shelby
thereafter licensed Unique Motorcars, Inc. to use the trademarks
“Shelby GT-500” and “Eleanor” in connection with the
manufacture and sale of vehicles and merchandise relating to any
1960’s Shelby automobiles. Unique then began manufacturing
and selling vehicles that resembled the 2000 remake version of
Eleanor, which, as discussed, had been referred to in the movie as
a 1967 Shelby GT-500. In May 2004 Halicki sued Unique and
Shelby for copyright infringement, common law trademark
infringement, unfair competition and other related torts. Halicki
also sought cancellation of Shelby’s registration of the “Eleanor”
mark.
The Engels were aware of the Shelby litigation when they
were negotiating the November 1, 2007 license agreement.
Paragraph 11.5 of the agreement stated, “Shelby Matter.
Licensor has advised Licensee that Licensor and related parties
are currently involved in litigation with Carroll Shelby, Unique
Performance, Steve Sanderson and related entities (collectively
‘Shelby’) with respect to the alleged infringement by Shelby of
6
certain intellectual property rights relating to the Eleanor vehicle
from the ‘Gone in 60 Seconds’ films.”
In December 2008, after Classic had delivered
Eleanor No. 1 to Halicki, Shelby filed its own federal court
trademark infringement action against Classic Recreations,
Halicki and others. All disputes involving Shelby and the
identification of the 2000 Eleanor as a 1967 Shelby GT-500 were
eventually settled in 2009. As part of the settlement, Shelby
abandoned any claim to the intellectual property rights to
“Eleanor” and on December 18, 2009 assigned to Halicki its
entire interest and goodwill in the “Eleanor” registered mark.
4. Termination of the License Agreement and Classic’s
Demand Letter
On October 16, 2009, shortly after the email exchange
between Jason Engel and Leone regarding the title document to
Eleanor No. 1, Classic terminated the license agreement. A
month later, in a letter from counsel dated November 20, 2009,
Classic asserted claims against Eleanor Licensing under the
license agreement, stating, “As a result of the settlement of the
lawsuit brought by Carroll Shelby, et al. against Denice
Shakarian Halicki, et al., and other facts, it is clear that Eleanor
Licensing LLC did not have the rights it claimed to have had
relative to the automobiles that were manufactured by Classic
under the terms of the Agreement . . . .” The letter continued
that Classic had suffered damages as a consequence of Eleanor
Licensing’s wrongful actions, including “the licensing fees and
royalties paid by T&D and Classic to Eleanor Licensing LLC
under the terms of the Agreement [and] the ‘Number 1 Unit
Remake 2000 Eleanor vehicle’ given to Eleanor Licensing LLC
under the terms of the Agreement . . . .” The letter offered to
7
settle the claims for $640,000 and “return of the ‘Eleanor’
automobile.” The penultimate paragraph of the letter declared,
“[B]ecause the ‘Eleanor’ automobile which was manufactured by
Classic and which is in your possession remains titled in Classic’s
name, you will not be able to obtain insurance on it. The vehicle
is not being insured by Classic and demand is hereby made upon
you not to drive the vehicle.”
Counsel for Halicki responded to the November 20, 2009
letter, describing the claims asserted as “frivolous and without
any foundation whatsoever” and threatening an action for
malicious prosecution against lawyer and clients if Classic
initiated a lawsuit.
5. Disputed Ownership and Possession of the Sample Car
Classic did not sue Eleanor Licensing for allegedly
misrepresenting its rights to “Gone in 60 Seconds” and “Eleanor”
in the November 1, 2007 license agreement. However, in
May 2014 Jason Engel petitioned for a writ of replevin in
Oklahoma state court seeking recovery of the sample car, naming
as defendant Fusion Motor Sports, Inc., which Eleanor Licensing
had licensed to build Eleanor replicas and which was displaying
the sample car in its Southern California showroom. A copy of a
State of Oklahoma certificate of title, naming Classic
Recreations LLC as owner of the vehicle, was attached as
4
Exhibit A to the verified petition. The Oklahoma state court
4
While Classic’s appeals were pending in this court, Eleanor
Licensing and Halicki moved to dismiss the appeals pursuant to
the disentitlement doctrine, contending the photocopy of the
certificate of title presented to the Oklahoma state court and
thereafter used by Classic during trial of this action had been
reproduced in a manner that failed to include the word “Denice”
8
issued a prejudgment order of restraint based on the verified
petition on May 23, 2014 and an order of delivery on
June 26, 2014.
After filing the Oklahoma replevin action, Jason Engel
contacted the Los Angeles Police Department and reported that
he owned the sample car, which he had loaned out years earlier
for promotional use. He claimed the car had then disappeared. A
detective with the LAPD automobile task force received a copy of
the Oklahoma title document but also learned there was a
dispute as to the vehicle’s ownership. The sample car was seized
from the Fusion showroom, impounded and then ultimately
released pursuant to stipulation to Eleanor Licensing and
Halicki, who paid storage fees of $6,657.75.
6. Halicki and Eleanor Licensing’s Lawsuit
On August 15, 2014 Eleanor Licensing and Halicki filed
this lawsuit to recover possession of, and legal title to,
Eleanor No. 1. Their complaint alleged eight causes of action:
breach of contract, breach of contract implied by conduct, breach
of implied covenant of good faith and fair dealing, declaratory
relief, return of personal property, quiet title, injunctive relief
and specific performance.
The gravamen of the first three, contract-based causes of
action is that Classic breached the agreement between the
parties (either the license agreement or an implied-in-fact
handwritten in pencil on the top margin of the document.
Eleanor Licensing and Halicki have also moved for this court to
take evidence on appeal, presenting the declaration of a forensic
examiner who opined the pencil notation “Denice” had been on
the original title document since late 2008. Both motions are
denied.
9
contract) by attempting to gain possession of the sample car. The
eighth cause of action for specific performance, also based on the
license agreement, alleges that Halicki is entitled, pursuant to
paragraph 13.2 of the agreement, to a court order requiring
Classic to transfer title to Eleanor No. 1 to her and to execute all
5
documents necessary to accomplish that task. The declaratory
relief cause of action alleges an actual controversy concerning the
parties’ respective rights to Eleanor No. 1: Eleanor Licensing
and Halicki claim they own Eleanor No. 1 free and clear of any
express or implied interest of Classic; Classic claims it has an
interest in Eleanor No. 1 as a result of holding title to the vehicle.
The fifth cause of action for return of personal property
incorporates by reference the allegations in all the prior
paragraphs in the complaint, seeks return of the sample car and
alleges Classic has damaged Eleanor Licensing and Halicki by
having Eleanor No. 1 taken from their possession, custody and
control. The quiet title cause of action seeks to quiet title to
Eleanor No. 1 solely in the name of Halicki as of the date Classic
6
gave the vehicle to Halicki in February 2008. The seventh cause
of action requests injunctive relief restraining Classic from
interfering with Eleanor Licensing and Halicki’s merchandising
rights to “Eleanor,” including their rights to the use and quiet
enjoyment of Eleanor No. 1.
5
The court permitted Eleanor Licensing and Halicki to
amend the complaint to conform to proof to allege title should be
transferred to both plaintiffs, not just Halicki.
6
The amendment to conform to proof also modified the quiet
title cause of action to include Eleanor Licensing, as well as
Halicki.
10
The complaint alleged in its description of the parties that
Jason Engel was the co-owner of Classic Recreation and T&D
Motor and the alter ego of both companies and similarly that
Tony Engel, Jason’s father, was co-owner and alter ego of both
Classic Recreation and T&D Motor.
7. The Trial Court’s Decision in Favor of Eleanor Licensing
and Halicki and Postjudgment Award of Fees
The case was tried before the court over four days in
February 2015. The court issued a 10-page tentative decision in
September 2015, ruling in favor of Eleanor Licensing and Halicki
on all causes of action, including a finding that Classic had
breached the license agreement by failing to transfer title to the
sample car to Eleanor Licensing. Following Classic’s request for
a statement of decision, the court entered a 32-page statement of
decision in February 2016 (adopting Eleanor Licensing and
Halicki’s proposed statement of decision after overruling Classic’s
objections).
In its statement of decision the court rejected Classic’s
argument, predicated on Shelby’s claim to certain “Eleanor”
trademark rights, that Eleanor Licensing did not have the legal
authority to license all the rights identified in the November 1,
2007 license agreement. Then, finding that Classic stood in a
fiduciary relationship with Eleanor Licensing and Halicki with
respect to delivery of title to the sample car, the court ruled the
delayed discovery rule articulated by this court in April
Enterprises, Inc. v. KTTV (1983) 147 Cal. App. 3d 805 applied and
Classic’s breach of the license agreement had occurred in secret,
so that the limitations period for Eleanor Licensing and Halicki’s
claims did not begin to run until the sample car was seized and
impounded by the LAPD at the urging of Classic. The court also
11
found that Jason Engel and Tony Engel were the alter egos of
Classic Recreations and T&D Motor.
In its Judgment, entered April 5, 2016, the court ordered
that Eleanor Licensing retain possession of Eleanor No. 1,
quieted title to the vehicle to Eleanor Licensing, and ordered
Classic Recreations, T&D Motor, Jason Engel and Tony Engel to
specifically perform their duties according to the terms of the
license agreement and transfer full title to the sample car to
Eleanor Licensing and Halicki. Additionally, the court issued a
permanent injunction requiring Classic Recreations, T&D Motor,
Jason Engel and Tony Engel to transfer title to the sample car to
Eleanor Licensing and Halicki and precluding them from
transferring title to anyone other than Eleanor Licensing and
from seeking possession of, or harming, the sample car. Eleanor
Licensing and Halicki were awarded damages of $6,657.75, plus
prejudgment interest of $887.70, jointly and severally from all
defendants. Finally, the court quieted title to the sample car in
Eleanor Licensing.
Following entry of judgment Eleanor Licensing and Halicki
moved for an award of attorney fees and costs pursuant to
paragraph 16.4 of the license agreement and Civil Code
section 1717. The court granted the motion in part, awarding
Eleanor Licensing attorney fees of $176,050 in a postjudgment
order dated August 23, 2016, rather than the $308,969.50 that
had been requested.
Classic filed a timely notice of appeal from the judgment
(case no. B275429) and a separate timely appeal from the
postjudgment attorney fee order (case no. B279238).
12
CONTENTIONS
Classic contends that, because Classic Recreations was
named as owner of the sample car in the certificate of legal title
issued by the State of Oklahoma, it was presumed to be the
owner of full beneficial title pursuant to Evidence Code
7
section 662 and that Eleanor Licensing and Halicki failed at
trial to meet their burden of overcoming the presumption.
Specifically, Classic asserts Eleanor Licensing did not convey the
trademark rights to “Eleanor” in the November 1, 2007 license
agreement, resulting in a failure of consideration for that
agreement and invalidating any rights Eleanor Licensing and
Halicki assert under its terms. Classic also contends the statute
of limitations barred the various claims asserted by Eleanor
Licensing and Halicki in their complaint and the findings that
Jason Engel and Tony Engel are the alter egos of Classic
Recreations and T&D Motor are not supported by substantial
8
evidence.
7
Evidence Code section 662 provides, “The owner of the legal
title to property is presumed to be the owner of the full beneficial
title. The presumption may be rebutted only by clear and
convincing proof.”
8
Although Classic separately appealed the postjudgment
order awarding attorney fees, in its briefs in this court it argues
only that, if we reverse the judgment in favor of Eleanor
Licensing and Halicki in its entirety, the award of attorney fees
and costs to them as prevailing parties should also be reversed
and, alternatively, if we reverse the court’s alter ego findings but
otherwise affirm the judgment, we should also reverse the award
of attorney fees and costs against Jason Engel and Tony Engel in
their individual capacities. Any other challenge to the ruling has
been forfeited. (See, e.g., Tiernan v. Trustees of Cal. State
13
DISCUSSION
1. The November 1, 2007 License Agreement Is Supported
by Adequate Consideration
Emphasizing the 2004 federal registration of Shelby’s
“Eleanor” trademark for “automobiles, engines for automobiles,
and structural parts for automobiles” and the statutory
9
presumption of its validity (15 U.S.C. § 1115(a)), Classic argues
Eleanor Licensing failed at trial to demonstrate its ownership of
a prior use common law trademark to “Eleanor” for those items
and, therefore, did not establish it owned the rights it
purportedly licensed to Classic in November 1, 2007. Classic also
asserts Shelby’s December 2009 assignment to Halicki of its
federally registered trademark as part of the settlement of the
Shelby litigation confirmed that Eleanor Licensing could not
convey a license to use the trademark in November 2007.
Classic’s argument is doubly flawed. First, Halicki testified
concerning her late husband’s commercial exploitation of the
University & Colleges (1982) 33 Cal. 3d 211, 216, fn. 4; Paulus v.
Bob Lynch Ford, Inc. (2006) 139 Cal. App. 4th 659, 685.)
9
Title 15 United States Code section 1115(a) provides that
federal registration of a trademark “shall be admissible in
evidence and shall be prima facie evidence of the validity of the
registered mark and of the registration of the mark, of the
registrant’s ownership of the mark, and of the registrant’s
exclusive right to use the registered mark in commerce on or in
connection with the goods or services specified in the registration
subject to any conditions or limitations stated therein, but shall
not preclude another person from proving any legal or equitable
defense or defect, including those set forth in subsection (b),
which might have been asserted if such mark had not been
registered.”
14
“Eleanor” and “Gone in 60 Seconds” marks following the release
of the first film, as well as the marketing activities surrounding
and subsequent to the release of the 2000 remake. The trial
court found this evidence established Eleanor Licensing and
Halicki’s ownership of rights in the “Eleanor” trademark (that is,
a common law trademark) sufficient to authorize the license for
use of the mark by Classic. That finding is amply supported by
substantial evidence. (See Feresi v. The Livery, LLC (2014)
232 Cal. App. 4th 419, 424 [testimony of a single witness is
sufficient to constitute substantial evidence]; Citizens Business
Bank v. Gevorgian (2013) 218 Cal. App. 4th 602, 613 [same].)
Second, evidence at trial, as well as the license agreement
itself, demonstrated that Classic was fully aware of Shelby’s 2004
federal trademark registration of “Eleanor” and the litigation
initiated by Halicki concerning its validity. In fact, trial
testimony disclosed that Leone, on behalf of Eleanor Licensing,
had advised the Engels to investigate ownership of the
intellectual property covered by the license agreement before
completing the transaction, which they did. In addition, Eleanor
Licensing warranted that it had the right to enter into the license
agreement and agreed to defend Classic in any third-party
infringement action brought against it for its use of the
intellectual property being licensed. Thus, even if ownership of
the “Eleanor” trademark was legitimately disputed by Shelby,
Eleanor Licensing and Halicki provided sufficient consideration
to Classic by giving Classic what it bargained for, licensing the
rights they had (which included their undisputed copyright
interests in “Eleanor” and “Gone in 60 Seconds,” as well as their
trademark rights) and agreeing to protect Classic from
infringement claims. (See San Diego City Firefighters, Local 145
15
v. Board of Administration Etc. (2012) 206 Cal. App. 4th 594, 619
[“‘[a] written instrument is presumptive evidence of a
consideration’ (Civ. Code, § 1614), and in any event all the law
requires for sufficient consideration is the proverbial
‘peppercorn’”].) There was no failure of consideration.
2. The Contract-based Claims, to the Extent Otherwise
Valid, Are Barred by the Statute of Limitations; the
Causes of Action for Return of Personal Property and
Quiet Title Were Timely Filed
a. The contract claims
Classic terminated the November 1, 2007 license
agreement on October 16, 2009. At that point the sample car was
in Halicki’s possession; legal title to the vehicle, however,
remained in the name of Classic Recreations. That Classic had
not transferred legal title to Halicki or Eleanor Licensing—and
did not intend to do so—was emphasized a month later in the
demand letter sent by Classic’s counsel to Eleanor Licensing. In
their complaint filed August 15, 2014, approximately four years
eight months after Classic’s demand letter, Eleanor Licensing
and Halicki sought specific performance of certain provisions of
the license agreement, including that Classic transfer legal title
to Eleanor No. 1 to Halicki, and alleged that Classic had
breached the license agreement “by attempting to assume
possession, custody, or control of Eleanor No. 1” in May and
June 2014.
Contract claims relating to Classic’s refusal to transfer
legal title to the sample car to Halicki were barred by the four-
year statute of limitations governing actions for breach of a
written contract (Code Civ. Proc., § 337), as Classic argued in the
trial court. Contrary to the court’s finding, Jason Engel did not
“harbor[] a secret intent in 2009 not to turn over title”; the
16
demand letter of November 20, 2009 made plain that Classic
Recreations held legal title to the sample car in its name and did
not intend to transfer title to Eleanor Licensing or Halicki.
Indeed, far from somehow suggesting it would comply with the
provisions of the license agreement and transfer title to Eleanor
Licensing and Halicki, Classic demanded they return possession
of the sample car to it as part of the consideration for settling the
claims it asserted against Eleanor Licensing. Moreover, Eleanor
Licensing and Halicki were well aware that Classic held the legal
title and refused to transfer it throughout the period from
termination of the license agreement in October 2009 to the time
of Jason Engels’s attempts to regain possession of the sample car
from the Focus showroom in June 2014. The record is totally
devoid of evidence that would permit use of the delayed discovery
rule articulated in April Enterprises, Inc. v. KTTV, supra,
147 Cal. App. 3d 805 to the breach of contract claim relating to the
10
failure to transfer title.
10
In April Enterprises, Inc. v. KTTV, supra, 147 Cal. App. 3d
805, this court applied the delayed discovery rule to a cause of
action for breach of contract when the plaintiff did not discover
the destruction of its property (the erasure of videotapes) until
long after its occurrence. As we explained, the injury was
“difficult for the plaintiff to detect”; the defendant was in “a far
superior position to comprehend the act and the injury”; and the
defendant “had reason to believe the plaintiff remained ignorant
he had been wronged.” (Id. at p. 831; see Gryczman v. 4550 Pico
Partners, Ltd (2003) 107 Cal. App. 4th 1, 5 [delayed discovery rule
applicable to breach of contract action because defendant “not
only breached the contract ‘within the privacy of its own offices’
but the act which constituted the breach—failure to give notice of
the option offer—was the very act which prevented plaintiff from
discovering the breach”]; see also Cleveland v. Internet Specialties
17
Although the refusal to transfer title was made known to
Eleanor Licensing and Halicki in late 2009, Classic’s efforts in
May and June 2014 to regain possession of the sample car
through the Oklahoma writ of replevin and notice to LAPD that
the car had been taken from it without authorization occurred
only a few months before the August 2014 filing of the instant
lawsuit. The statute of limitations should not be an issue in
challenging the lawfulness of that conduct, regardless of the
theory of liability. But the suggestion that those actions
somehow constituted a breach of the long-since-terminated
license agreement lacks any merit, as Eleanor Licensing and
Halicki now seem to acknowledge by arguing in their
respondents’ brief that, “[f]or all the palaver about the license
agreement,” their lawsuit was not about the parties’ contract, but
was “a classic conversion claim.”
b. The claims for return of personal property and to
quiet title
As Classic emphasizes in its reply brief, Eleanor Licensing
and Halicki did not plead or attempt to prove a cause of action for
conversion. However, they did plead, and the trial court ruled
they had proved, a cause of action for recovery of specific personal
property, a code-based cause of action (see Code Civ. Proc., § 627),
often incorrectly referred to as a “claim and delivery action.” (See
generally 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 692,
West, Inc. (2009) 171 Cal. App. 4th 24, 33 [breach of contract and
fraud claims arising from false representations that new business
venture had failed when it was actually operating at a profit
under a different name].) There was nothing secret or hidden
about Classic’s refusal to transfer legal title to Eleanor No. 1 to
Halicki.
18
at p. 110 [an action for the specific recovery of personal property,
with damages in a proper case for its detention, “insofar as it
needs a label or designation, might be termed ‘specific recovery of
personal property.’ [Citations.] [¶] At an early date, however,
California courts borrowed the statutory title of the provisional
remedy of ‘claim and delivery,’ which gives immediate possession
pending trial, and the action is often called a ‘claim and delivery
action.’”].)
Code of Civil Procedure section 338, subdivision (c)(1),
creates a three-year limitations period for “actions for the specific
recovery of personal property.” (See Coy v. County of Los Angeles
(1991) 235 Cal. App. 3d 1077, 1087 [“[c]auses of action for claim
and delivery or conversion of personal property are governed by
the three-year statute of limitations as set forth in section 388,
subdivision (c)”].) In most cases, the act of wrongfully taking the
property triggers the statute of limitations. (AmerUS Life Ins.
Co. v. Bank of America, N.A. (2006) 143 Cal. App. 4th 631, 639; see
Strasberg v. Odyssey Group, Inc. (1996) 51 Cal. App. 4th 906, 915-
916 [recognizing general rule but applying delayed discovery
doctrine].) Because Eleanor Licensing and Halicki’s fifth cause of
action for return of personal property was based on Classic’s
interference with their possession and control of the sample car
in May and June 2014—only a few months before they initiated
their lawsuit—this claim was timely filed. Those portions of the
judgment restoring possession of Eleanor No. 1 to Eleanor
Licensing and Halicki and awarding damages (storage costs
incurred as a result of Classic’s wrongful actions in causing the
vehicle to be impounded by the police) are properly affirmed.
Similarly, Eleanor Licensing and Halicki’s sixth cause of
action to quiet title was timely filed. To be sure, Eleanor
19
Licensing and Halicki were aware no later than November 2009
that Classic did not intend to voluntarily transfer legal title to
the sample car and, as a consequence, had reason to know there
might be a dispute concerning ownership of the vehicle at some
11
future point. However, the general rule in quiet title actions
(usually articulated in cases involving real property, not personal
property) is that the statute of limitations “‘“does not run against
one in possession of land.”’” (Salazar v. Thomas (2015)
236 Cal. App. 4th 467, 477; accord, Muktarian v. Barmby (1965)
63 Cal. 2d 558, 560 (Muktarian); Crestmar Owners Assn. v.
12
Stapakis (2007) 157 Cal. App. 4th 1223, 1228.) Even if a party in
possession knows of a potential adverse claim, “there is no reason
to put him to the expense and inconvenience of litigation until
such a claim is pressed against him.” (Muktarian, at pp. 560-
561.) “Thus, mere notice of an adverse claim is not enough to
11
Notably, Classic’s November 2009 demand letter did not
assert ownership or a right to immediate possession of the
sample car. Rather, it offered to accept return of the car, together
with a cash payment, to settle its claims relating to the license
agreement and insisted only that Eleanor Licensing not drive the
car because it was uninsured.
12
There is no statute of limitations specific to quiet title
actions. (Muktarian, supra, 63 Cal.2d at p. 560; Salazar v.
Thomas, supra, 236 Cal.App.4th at p. 476.) Instead, courts refer
to the underlying theory of relief (for example, adverse
possession, breach of contract or fraud) to determine which
limitations period applies. (Muktarian, at p. 560.) However,
because Eleanor Licensing and Halicki initiated their quiet title
action within three months of Classic’s activities interfering with
their possession of the sample car, we need not determine which
limitations period would otherwise apply.
20
commence the owner’s statute of limitations.” (Salazar, at
p. 478.)
Here, following Classic’s demand letter of November 20,
2009 and Eleanor Licensing’s rejection of Classic’s claims as
“frivolous,” Classic took no action to assert any claim or right to
possession of Eleanor No. 1 until May and June 2014. It was
those events in 2014 that triggered the limitations period for the
quiet title action.
Neither Walters v. Boosinger (2016) 2 Cal.App.5th 421 nor
Ankoanda v. Walker-Smith (1996) 44 Cal. App. 4th 610, the cases
relied upon by Classic, supports a conclusion Eleanor Licensing
and Halicki’s quiet title action was not timely filed. The plaintiff
in Walters had argued a quiet title claim based on the theory a
deed was void ab initio “is not subject to any statute of limitation
and ‘can be brought at any time.’” (Walters, at p. 433.) The court
of appeal rejected that contention. (Ibid.) Noting the plaintiff
had not raised any contention as to which statute of limitation
applied to his claim or maintained that his quiet title action had
been timely filed under any governing limitations period, the
court expressly declined to consider that issue. (Id. at p. 433,
fn. 16.) The court did not, as Classic asserts, hold that actual
knowledge of a potential dispute concerning ownership triggered
the limitations period for a quiet title action.
Ankoanda v. Walker-Smith, supra, 44 Cal. App. 4th 610
involved an action to quiet title in which the property owner
alleged she had conveyed a joint tenancy interest in the property
to her tenant based on fraud or mistake, believing the tenant
would reconvey the interest when it was no longer needed to
qualify for a government program providing subsidies to daycare
centers. (Id. at pp. 613-614.) The tenant in a letter from her
21
attorney, however, had claimed a genuine ownership interest
pursuant to the deed creating the joint tenancy more than three
years before the owner filed her quiet title action. The court of
appeal held the action was barred by the three-year limitations
period of Code of Civil Procedure section 338, subdivision (d),
rejecting the owner’s contention the limitations period was tolled
because, as landlord, she was at all times deemed to have seisen
and possession of the leased property through her tenant.
(Ankoanda, at pp. 615-616.) The court held the Supreme Court’s
ruling in Muktarian, supra, 63 Cal.2d at page 560 that no statute
of limitations runs against a plaintiff seeking to quite title while
he or she is in possession of the property required “exclusive and
undisputed possession,” and did not apply to the alleged joint
ownership situation presented by the case before it. (Ankoanda,
at pp. 616, 618.) The court added, “as joint tenants, both Walker-
Smith [the tenant] and Ankoanda [the landlord] had an equal
right to possession of the entire property, but did not have right
to the exclusive possession of the property as against each other.
[Citation.] Thus, case law stating the general proposition that a
landlord remains seised and possessed of leased property through
her tenant as against third parties and/or the tenant is clearly
distinguishable from a case like the present one where the
occupying tenant claims a joint ownership interest pursuant to a
recorded deed and the question is whether the deed should be
invalidated.” (Id. at p. 618.)
Thus, although the court of appeal in Ankoanda held the
letter from the tenant’s lawyer asserting an ownership interest in
the property started the running of the governing three-year
limitations period, as Classic argues, that conclusion was
expressly premised on the disputing parties’ joint possession of
22
the property. (Ankoanda v. Walker-Smith, supra, 44 Cal.App.4th
at p. 618.) The court did not—indeed, could not—overturn the
Supreme Court’s holding in Muktarian that, as to the party who
is in exclusive possession of the property at issue, knowledge of a
potential adverse claim is not enough to trigger the limitations
period for a quiet title action. (See Crestmar Owners Assn. v.
Stapakis, supra, 157 Cal.App.4th at p. 1229 [unusual facts
present in Ankoanda distinguished it from the very different
circumstances in Muktarian].) Here, like the situation in
13
Muktarian and unlike Ankoanda, even though Classic retained
legal title to Eleanor No. 1, Eleanor Licensing had possession and
control of the car before it was impounded by the LAPD. The
time to file a quiet title action began to run only with that event:
“[T]itle does not equal possession.” (Crestmar, at p. 1230.)
3. The Alter Ego Finding Is Not Supported by
Substantial Evidence
“‘Ordinarily, a corporation is regarded as a legal entity,
separate and distinct from its stockholders, officers and directors,
with separate and distinct liabilities and obligations. [Citations.]’
[Citation.] ‘[T]he corporate form will be disregarded only in
narrowly defined circumstances and only when the ends of justice
13
In Muktarian a father had executed a grant deed conveying
certain real property to his son (apparently to keep his second
wife from acquiring it), but continued to live on the property.
(Muktarian, supra, 63 Cal.2d at pp. 559-560.) It was in this
context—where the father retained possession but knew his son
had legal title—that the Supreme Court held the limitation
period for the father’s quiet title action did not start to run until
the son acted in some way to challenge his father’s rights in the
property. (Id. at pp. 560-561.)
23
so require.’ [Citation.] Before a corporation’s obligations can be
recognized as those of a particular person, the requisite unity of
interest and inequitable result must be shown. [Citation.] These
factors comprise the elements that must be present for liability as
an alter ego.” (Leek v. Cooper (2011) 194 Cal. App. 4th 399, 411;
see Sonora Diamond Corp. v. Superior Court (2000)
83 Cal. App. 4th 523, 539 [alter ego doctrine does not apply
without evidence showing that “some conduct amounting to bad
faith makes it inequitable for the corporate owner to hide behind
the corporate form”]; Associated Vendors, Inc. v. Oakland Meat
Co. (1962) 210 Cal. App. 2d 825, 838.)
The trial court based its alter ego findings on the following
evidence:
• Jason Engel told Halicki that “Classic Recreation[s]
and T&D Motors are one and the same. It’s me and
my Dad Tony that do all the decision making, so you
[Halicki] and or Mr. Leone will only be dealing with
us, no one else.”
• Jason Engel “testified under oath in a petition filed in
the Oklahoma court that Classic Recreations LLC is
14
his DBA”—that is, his fictitious business name.
14
The reference to Classic Recreations LLC as Jason Engel’s
dba appears only in the caption of the replevin petition, prepared
by Engel’s attorney. Although Engel verified that the allegations
in the petition were “true and correct based on my knowledge and
belief,” it was something of an overstatement for the court to find
that Engel had testified under oath in an Oklahoma court
proceeding that Classic Recreations was simply a dba, as set
forth on page 13 of the statement of decision, let alone that he
had “assert[ed] under oath in a court of law that he is an alter
24
• Tony Engel provided Eleanor Licensing with his
personal guarantee to honor any agreement entered
by the parties.
The court concluded this evidence was sufficient to
demonstrate such a unity of interest and ownership between
Jason Engel and Tony Engel, on the one hand, and Classic
Recreations and T&D Motor, on the other hand, that the
corporate and individual personalities merged. In addition, the
court found it would be inequitable for Jason Engel to assert
under oath in an Oklahoma court proceeding that Classic
Recreations was simply a dba and to make statements to that
effect on which he intended Eleanor Licensing and Halicki to rely
and then not to treat him as an alter ego of Classic Recreations.
Although it appears from the record that Classic
Recreations and T&D Motor are closely held family businesses,
the evidence submitted is insufficient to support the alter ego
findings. That Tony Engel and Jason Engel, as co-owners of the
two businesses, were authorized to make all decisions related to
the license agreement and the manufacture and sale of the
Eleanor replicas in no way indicates any commingling of personal
and corporate assets, use of corporate assets for personal
purposes, gross undercapitalization of the corporate entities,
disregard of corporate formalities or any other of the many
circumstances that might support the conclusion that no
separation actually existed between these two individuals and
the two corporate entities. (See, e.g., Misik v. D’Arco (2011)
197 Cal. App. 4th 1065, 1073 [listing a series of factors identified
ego of Classic Recreation[s] LLC,” as the court reformulated this
point on pages 26-27 of its statement of decision.
25
in prior court decisions to support a unity-of-interest finding];
Leek v. Cooper, supra, 194 Cal.App.4th at pp. 417-418 [same].)
Moreover, Tony Engel’s offer of a personal guarantee to Halicki in
connection with the corporations’ contractual obligations, if
meaningful at all in this context, suggests that he and his
resources were viewed as distinct from those of the corporations.
Finally, while the identification of Classic Recreations as
Jason Engel’s fictitious business name in the Oklahoma state
court replevin proceedings certainly implies that Engel did not
consider Classic Recreations a distinct legal entity for purposes of
asserting ownership of Eleanor No. 1, this evidence does not
support an alter ego finding as to Tony Engel or with respect to
either individual and T&D Motor. In addition, as discussed, the
second prong of an alter ego determination requires a finding
there would be an inequitable result if the acts in question were
treated as those of the corporation alone: “‘Under the alter ego
doctrine, then, when the corporate form is used to perpetrate a
fraud, circumvent a statute, or accomplish some other wrongful or
inequitable purpose, the courts will ignore the corporate entity
and deem the corporation’s acts to be those of the persons or
organizations actually controlling the corporation, in most
instances the equitable owners.’” (Turman v. Superior Court
(2017) 17 Cal.App.5th 969, 981; accord, Sonora Diamond Corp. v.
Superior Court, supra, 83 Cal.App.4th at pp. 538-539.) Although
the trial court may have correctly applied the doctrine of judicial
estoppel to preclude Jason Engel from denying the existence of a
unity of interest between him and Classic Recreations, his
assertion that Classic Recreations functioned as his fictitious
business name did not establish that he used the corporate form
26
for any fraudulent or deceptive purpose, as required to impose
alter ego liability.
4. Jason Engel Was Properly Named as a Defendant in the
Causes of Action To Quiet Title and for Return of
Personal Property; Tony Engel Was a Proper Defendant
in the Quiet Title Cause of Action
A quiet title action may name as a defendant any party
who might assert a claim to title in the property. (See Code Civ.
Proc., §§ 762.010 [“[t]he plaintiff shall name as defendants in the
action the persons having adverse claims to the title of the
plaintiff against which a determination is sought”], 762.060,
subd. (b) [“[i]n an action under this section, the plaintiff shall
name as defendants the persons having adverse claims that are
of record or known to the plaintiff or reasonably apparent from
an inspection of the property”]; see also Harbour Vista, LLC v.
HSBC Mortgage Services Inc. (2011) 201 Cal. App. 4th 1496, 1506
[explaining one purpose of 1980 revision of statutory scheme for
quiet title actions was to permit the action to proceed against
“any or all adverse claimants,” making final quiet title judgment
“good against all the world as of the time of the judgment”]; see
generally Caira v. Offner (2005) 126 Cal. App. 4th 12, 25, fn. 7
[“action to quiet title may be used to establish ownership of
personal property as well as real property”].) Eleanor Licensing
and Halicki argue, and Classic does not dispute, that, because
neither Jason Engel nor Tony Engel disclaimed any interest to
Eleanor No. 1, they were each properly named as defendants in
the quiet title cause of action. As a consequence,
notwithstanding our reversal of the alter ego findings as to the
Engels, they are properly included in those portions of the
judgment in which the court ordered Eleanor Licensing to retain
possession of the sample car, quieted title to the sample car to
27
Eleanor Licensing and issued an injunction requiring transfer of
title to the vehicle to Eleanor Licensing, precluding Classic from
transferring title to anyone else and restraining Classic from
seeking possession of, or harming, the sample car (paragraphs 1,
2, 4, 5, 6 and 8).
Because Jason Engel asserted personal ownership of the
sample car in the Oklahoma replevin action, he was also properly
named as a defendant in Eleanor Licensing and Halicki’s cause of
action for return of personal property. As such, Jason Engel was
properly held jointly and severally liable with the two corporate
entities for damages equal to the storage fees imposed when the
sample car was seized from Fusion and impounded by the LAPD.
(See Code Civ. Proc., § 667 [“[i]n an action to recover the
possession of personal property, judgment for the plaintiff may be
for the possession or the value thereof, in case delivery cannot be
had, and damages for the detention”]; Crosswhite v. American
Ins. Co. (1964) 61 Cal. 2d 300, 302 [party improperly withholding
personal property is “liable not only for the property or its value,
but also for damages for the detention from the time of the
demand”]; see also Spencer Kennelly, Ltd. v. Bk. of Amer. (1942)
19 Cal. 2d 586, 589 [“in a claim and delivery action where plaintiff
prevails and the personal property involved has diminished in
value, deprecation is a proper element of damages”].)
5. The Engels Are Not Liable for Attorney Fees
The Engels are neither parties to the November 1, 2007
license agreement nor the alter egos of Classic Recreations and
T&D Motor, the two corporations that entered into the agreement
with Eleanor Licensing. Because the award of attorney fees to
Eleanor Licensing and Halicki as prevailing parties was based on
the fee provision in the license agreement and Civil Code
28
section 1717, the finding that Jason Engel and Tony Engel are
jointly and severally liable for that award is reversed. (See
Wilson’s Heating & Air Conditioning v. Wells Fargo Bank (1988)
202 Cal. App. 3d 1326, 1332 [although contracts between general
contractor and subcontractors had attorney fee provisions and
notwithstanding stipulated judgment against general contractor
and construction lender, plaintiff subcontractors were not
entitled to recover attorney fees from construction lender that
was not a signatory to the subcontracts, was not the alter ego of
the general contractor and had not assumed general contractor’s
obligations when it foreclosed on the property]; see generally
Reynolds Metals Co. v. Alperson (1979) 25 Cal. 3d 124, 127.)
DISPOSITION
Paragraph 3 of the judgment entered April 5, 2016,
ordering Classic Recreations, T&D Motor, Jason Engel and Tony
Engel to perform certain terms of the November 1, 2007 license
agreement, that portion of paragraph 7 of the judgment that
finds Tony Engel jointly and severally liable for damages and
prejudgment interest and those portions of paragraph 7 of the
judgment and the postjudgment order that find Jason Engel and
Tony Engel jointly and severally liable for the award of attorney
fees are stricken. In all other respects the judgment and
postjudgment order awarding attorney fees are affirmed.
Eleanor Licensing and Halicki are to recover their costs on
appeal.
PERLUSS, P. J.
We concur:
ZELON, J. SEGAL, J.
29