Opinion
B295483
01-23-2020
KEITH BERGLUND, Plaintiff and Respondent, v. ULARA ROGERS, Defendant and Appellant.
Keith Berglund, Plaintiff and Respondent, in pro per. Cliff Dean Schneider for Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BC651441 APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory W. Alarcon, Judge. Reversed in part. Keith Berglund, Plaintiff and Respondent, in pro per. Cliff Dean Schneider for Defendant and Appellant.
INTRODUCTION
Plaintiff and respondent Keith Berglund sued his ex-wife, defendant and appellant Ulara Rogers. Berglund asserted a claim for civil extortion, among several others, seeking damages for injuries he claims to have suffered due to Rogers' wrongful filing of a criminal complaint in South Korea against his current wife based on a Korean statute criminalizing adultery. Following a bench trial, the trial court ruled in favor of Berglund solely on his civil extortion claim and awarded him $1 in nominal damages.
On appeal, Rogers contends the trial court erred in holding her liable for civil extortion because Berglund's claim was time-barred. Relying on the doctrine of continuing tort, Berglund counters his civil extortion claim was timely because it did not accrue until March 2015, when the Korean adultery statute was repealed. We disagree with Berglund and reverse the judgment to the extent it was entered in his favor.
FACTS AND PROCEDURAL BACKGROUND
Berglund and Rogers are former spouses who were married for about seven years. Their divorce was finalized in August 2012 after they stipulated to a settlement agreement. The settlement agreement required Berglund to, among other things, pay Rogers $4,500 per month in spousal support until one year after she remarried. Both parties have since remarried. Berglund's current wife, Judy Berglund (Judy), is a citizen of South Korea.
In April 2013, Berglund received a letter addressed to Judy from a Korean law firm purporting to represent Rogers. Dated April 17, 2013, the letter asserted Judy had committed adultery with Berglund while he was married to Rogers, and thereby violated a Korean statute providing adultery is a crime punishable by two years of imprisonment. According to the letter, the adultery statute "'applied to Korean nationals who committed the crime outside Korean territory.'" Consequently, the letter stated, the law firm filed a criminal complaint against Judy "for the crime of adultery" with the local prosecutor's office in South Korea on February 28, 2013. Moreover, the letter stated Rogers was "planning to inform the United States Citizenship and Immigration Services . . . of [Judy's] . . . violation of the South Korean law." The letter further stated, however, that Rogers was willing to consider "proposing withdrawals of all the claims for the compensation for the damages and the entire future legal actions (including [the] criminal complaint) resulting from [Judy's] act of adultery, as benefits in return for the payment of US$700,000."
After receiving the April 2013 letter, Judy retained counsel, who sent a response directly to Rogers on May 9, 2013. The response stated the April 2013 letter "constitutes extortion under applicable federal and state statutes." Additionally, the response warned that if the criminal complaint filed in South Korea was not withdrawn by May 22, 2013, Judy "reserve[d] all rights to take all actions appropriate and necessary to redress the egregious wrongs specified in the [April 2013 letter.]" Judy's counsel did not receive a reply to the May 2013 response.
On November 20, 2013, Berglund received an e-mail from Rogers regarding "Alimony." The e-mail read, in relevant part: ". . . How is everything? [¶] . . . Would you be able to tell me when I can expect payments? [¶] . . . It's been almost 6 months since you said you would consider paying me lump sum of $100,000 and your wife might be able to help paying the amount remaining over $100,000."
Berglund's Motion to Augment the Record on Appeal, filed November 12, 2019, is granted. Rogers' Motion for Judicial Notice, filed September 9, 2019, is denied.
Nine months later, on August 20, 2014, Berglund received another e-mail from Rogers seeking money. According to the e-mail, Berglund apparently told Rogers he would "deposit something on August 4, 2014," but had yet to do so. Consequently, Rogers asserted: "I have exhausted all other means and have no other choice but to move forward and report your ethical misconduct to California, Illinois, and Georgia State Bar Associations and also take other actions necessary. This email will be my last attempt to resolve this matter in a friendly manner. I am requesting that you pay me the full amount due of $46,417 plus the interest at the rate of ten percent (10%) per annum which will come to $51,058.70 by August 31, 2014."
On February 22, 2017, Berglund filed a complaint against Rogers seeking damages for injuries suffered due to her "scheme . . . to extort money from [him] and his family . . . through use of an antiquated Korean criminal statute." The complaint asserted five causes of action: (1) civil extortion; (2) written threat with intent to extort; (3) intentional infliction of emotional distress; (4) wrongful and tortious interference with prospective economic advantage; and (5) breach of the implied covenant of good faith and fair dealing.
On April 12, 2017, Berglund filed his First Amended Complaint, which added allegations pertaining to the November 2013 and August 2014 e-mails, among other things. The First Amended Complaint also added a claim for unfair business practices under California's Unfair Competition Law. Prior to trial, Berglund dismissed his intentional infliction of emotional distress claim.
Following a bench trial, the trial court ruled in Berglund's favor on his civil extortion claim and awarded him $1 in nominal damages. The court found the evidence regarding the August 2014 e-mail was "insufficient evidence of extortion." Nevertheless, the court found Rogers liable for civil extortion based on her improper filing of the criminal complaint for adultery against Judy in South Korea and threat to report Judy's alleged violation of Korean law to U.S. immigration authorities. The court ruled in Rogers' favor on all of Berglund's other claims.
Rogers timely appealed the court's judgment.
DISCUSSION
Rogers contends the trial court erred by finding in Berglund's favor on his civil extortion claim because the claim was barred by the statute of limitations. In support of her argument, Rogers emphasizes she was found liable for civil extortion based entirely on statements made in the April 2013 letter, which Berglund received over three years before he filed his complaint. Thus, Rogers argues, the sole claim for which she was held liable was time-barred, as Berglund did not pursue it within the applicable two-year limitations period.
Although the trial court's statement of decision does not discuss the timeliness of Berglund's civil extortion claim, Rogers has adequately preserved the issue for appellate review, as she filed a timely objection to the court's proposed statement of decision setting forth her arguments on the matter. (See Code Civ. Proc., § 634; see also Marriage of Hardin (1995) 38 Cal.App.4th 448, 453, fn. 4; Eisenberg et. al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 8:267, p. 8-190 [acknowledging issues are not waived on appeal "if appellant . . . timely notif[ied] the trial court of its omission or error in the statement of decision but the trial court then refused to address the issue contained in the requested finding"].)
In response, Berglund contends the continuing tort doctrine - also known as the continuing violation doctrine - applies in this case, such that his civil extortion claim did not accrue until March 2015, when the Korean statute outlawing adultery was repealed. As discussed below, we disagree with Berglund and conclude the continuing violation doctrine does not apply here. Therefore, the trial court erred in holding Rogers liable for civil extortion, as the claim was time-barred.
Resolution of a statute of limitations issue is normally a question of fact, which we review for substantial evidence. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112; Institoris v. City of L.A. (1989) 210 Cal.App.3d 10, 17.) The application of a statute of limitations to undisputed facts, however, is a question of law subject to de novo review. (Martino v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 485, 489.)
In California, civil extortion has been defined as "a cause of action for the recovery of money obtained by the wrongful threat of criminal or civil prosecution." (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426, disapproved on other grounds by Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Because civil extortion seeks recovery of damages for injuries caused by the wrongful act of another, the applicable limitations period is two years. (Code Civ. Proc., § 335.1.)
Notwithstanding that the sole issue raised by Rogers is the expiration of the statute of limitations, Berglund does not identify the statute of limitations he contends is applicable until page 27 of his brief, in a footnote. There, Berglund argues the statute of limitations for civil extortion is governed by Code of Civil Procedure section 338, which provides for a three-year limitations period. Berglund's assertion, however, is wholly unsupported by citation to legal authority or reasoned argument. Consequently, we may treat his contention as waived and need not consider it. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
"Ordinarily, the statute of limitations begins to run when the tort is complete, i.e., when all the elements for the cause of action have been satisfied. However, there are exceptions to this general rule. [Citation.] One of the exceptions is the continuing violation doctrine. [Citation.]" (Morgan v. Davidson (2018) 29 Cal.App.5th 540, 559-560.)
"The continuing violation doctrine aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them. [Citations.]" (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192 (Aryeh).) Consequently, the continuing violation doctrine "allows liability for unlawful . . . conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802.) For the continuing violation doctrine to apply, the plaintiff must show the defendant engaged in "a pattern of reasonably frequent and similar acts," which would "justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period. [Citations.]" (Aryeh, supra, 55 Cal.4th at p. 1198.)
Even assuming - as Berglund suggests - the April 2013 letter, November 2013 e-mail, and August 2014 e-mail amount to a "pattern of reasonably frequent and similar" extortionate acts such that they may be considered "an indivisible course of conduct," (Aryeh, supra, 55 Cal.4th at p. 1198), we conclude the continuing violation doctrine does not apply in this case. As noted above, Berglund did not file his complaint until February 2017. Consequently, all the acts on which his civil extortion claim is based occurred more than two years before he filed suit, and therefore fell outside the limitations period. Because Berglund's claim is predicated entirely on actions that occurred beyond the limitations period, the continuing violation doctrine cannot be used to "save" it from being time-barred. (See Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 325-327; see also Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 64 [acknowledging plaintiffs seeking to invoke the continuing violation doctrine must "demonstrate that at least one [wrongful] act occurred within the filing period"].)
Moreover, we reject Berglund's contention that because Rogers never retracted the April 2013 letter, her extortionate conduct continued, and his civil extortion claim did not accrue, until the Korean adultery statute was repealed in March 2015. Berglund essentially contends the statute of limitations was tolled to March 2015 because, up to that point, he continued to suffer harm due to the April 2013 letter. Specifically, he emphasizes that, until the adultery statute was repealed, he could not go to South Korea to visit family or pursue economic opportunities for fear of getting arrested in connection with the criminal complaint filed against Judy. The continual nature of injuries sustained from a completed act, however, does not affect when a claim accrues, because "if continuing injury from a completed act generally extended the limitations periods, those periods would lack meaning. Parties could file suit at any time, as long as their injuries persisted. This is not the law. The time bar starts running when the plaintiff first learns of actionable injury [citation], even if the injury will linger or compound." (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 745.)
Accordingly, for the reasons discussed above, the trial court erred in entering judgment in Berglund's favor on his civil extortion claim, as the claim was barred by the statute of limitations.
In addition to opposing Rogers' arguments regarding the timeliness of his civil extortion claim, Berglund raises several arguments in support of the judgment's reversal. Given Berglund's failure to file a cross-appeal, we decline to consider them at this time. (Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791, 798 [acknowledging "a respondent who has not appealed from the judgment may not urge error on appeal," unless the respondent seeks to assert a legal theory which may result in the judgment's affirmance].)
DISPOSITION
The judgment is reversed in part. Appellant shall recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. WE CONCUR:
MANELLA, P. J.
COLLINS, J.