Aryeh v. Canon Business Solutions, Inc.

Filed 1/24/13

IN THE SUPREME COURT OF CALIFORNIA

JAMSHID ARYEH, )

)

Plaintiff and Appellant, )

) S184929

v. )

) Ct.App. 2/8 B213104

CANON BUSINESS SOLUTIONS, INC., )

) Los Angeles County

Defendant and Respondent. ) Super. Ct. No. BC384674

____________________________________)

The common law theory of continuous accrual posits that a cause of action

challenging a recurring wrong may accrue not once but each time a new wrong is

committed. We consider whether the theory can apply to actions under the unfair

competition law (Bus. & Prof. Code, § 17200 et seq.; hereafter UCL) and, if so,

whether it applies here to save plaintiff Jamshid Aryeh‟s suit from a limitations

bar. We conclude: (1) the text and legislative history of the UCL leave UCL

claims as subject to the common law rules of accrual as any other cause of action,

and (2) continuous accrual principles prevent Aryeh‟s complaint from being

dismissed at the demurrer stage on statute of limitations grounds. Accordingly, we

reverse the Court of Appeal‟s judgment.

1

FACTUAL AND PROCEDURAL BACKGROUND1

Aryeh runs a copy business under the name ABC Copy & Print. Defendant

Canon Business Solutions, Inc. (Canon) sells, leases, services, and repairs copiers

and other office products. In November 2001 and February 2002, Aryeh entered

agreements with Canon to lease copiers for a term of 60 months. The leases

required Aryeh to pay monthly rent for each copier, subject to a maximum copy

allowance. Copies in excess of the monthly allowance required payment of an

additional per copy charge.

Canon serviced the leased copiers periodically. Shortly after entering the

two leases, Aryeh noticed discrepancies between meter readings taken by Canon

employees and the actual number of copies made on each copier. When Canon

would not respond to Aryeh‟s complaints, Aryeh began compiling independent

copy records. Aryeh concluded that during service visits, Canon employees were

running test copies—according to the operative complaint, a total of at least 5,028

copies over the course of 17 service visits between February 2002 and November

2004. These copies resulted in Aryeh exceeding his monthly allowances and

owing excess copy charges and late fees to Canon.

Aryeh sued in January 2008, alleging a single claim for violation of the

UCL. The original complaint alleged Canon knew or should have known it was

charging for excess copies and that the practice of charging for test copies was

1 On appeal from the sustaining of a demurrer, we accept as true the well-

pleaded facts in the operative complaint, Aryeh‟s second amended complaint.

(Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 505, fn. 1.) We

will not, however, disregard contrary allegations in earlier complaints to the extent

they are pertinent, as a plaintiff may not disavow earlier concessions by omitting

them from subsequent complaints. (Hendy v. Losse (1991) 54 Cal.3d 723, 742-

743.)

2

both unfair and fraudulent. The complaint also included class allegations. Aryeh

originally sought restitution and injunctive relief, but later amended his complaint

to seek only restitution.

Canon demurred, arguing that the claim was barred by, inter alia, the statute

of limitations. (See Bus. & Prof. Code, § 17208.)2 After twice sustaining

demurrers with leave to amend, the trial court finally sustained a demurrer without

leave to amend and dismissed the action with prejudice. Its order recited several

grounds, but the court made clear the primary basis for dismissal was the statute of

limitations. The trial court read state law as establishing that “the clock [on a UCL

claim] starts running when the first violation occurs.” Consequently, because the

second amended complaint established a first violation in 2002, the claim was

barred by the four-year statute of limitations.

A divided Court of Appeal affirmed. The majority agreed with the trial

court that neither delayed discovery nor the continuing violation doctrine could be

applied to extend the statute of limitations for UCL claims; accordingly, Aryeh‟s

claim was untimely. The dissent would have reversed under the theory of

continuous accrual, reasoning that even if some parts of Aryeh‟s claim were stale,

not all parts of it were barred.

We granted review to resolve lingering uncertainty over the timing of

accrual and the applicability of continuing-wrong accrual principles under the

UCL.

2 All further unlabeled statutory references are to the Business and

Professions Code.

3

DISCUSSION

This appeal follows the sustaining of a demurrer. The application of the

statute of limitations on undisputed facts is a purely legal question (see Jolly v. Eli

Lilly & Co. (1988) 44 Cal.3d 1103, 1112); accordingly, we review the lower

courts‟ rulings de novo. We must take the allegations of the operative complaint

as true and consider whether the facts alleged establish Aryeh‟s claim is barred as

a matter of law. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797,

810-811.)

I. Accrual and Equitable Exceptions to the Usual Running of the

Statute of Limitations

An affirmative defense, the statute of limitations exists to promote the

diligent assertion of claims, ensure defendants the opportunity to collect evidence

while still fresh, and provide repose and protection from dilatory suits once excess

time has passed. (See, e.g., Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246;

Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395-396; Jordache Enterprises, Inc.

v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 755-756; Jolly v. Eli Lilly

& Co., supra, 44 Cal.3d at p. 1112.) The duration of the limitations period marks

the legislatively selected point at which, for a given claim, these considerations

surmount the otherwise compelling interest in adjudicating on their merits valid

claims. (See Johnson v. Railway Express Agency (1975) 421 U.S. 454, 463-464;

Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797; Norgart, at p. 396.)

The limitations period, the period in which a plaintiff must bring suit or be

barred, runs from the moment a claim accrues. (See Code Civ. Proc., § 312 [an

action must “be commenced within the periods prescribed in this title, after the

cause of action shall have accrued”]; Pooshs v. Philip Morris USA, Inc., supra, 51

Cal.4th at p. 797; Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 806;

Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397.) Traditionally at common law,

4

a “cause of action accrues „when [it] is complete with all of its elements‟—those

elements being wrongdoing, harm, and causation.” (Pooshs, at p. 797, quoting

Norgart, at p. 397.) This is the “last element” accrual rule: ordinarily, the statute

of limitations runs from “the occurrence of the last element essential to the cause

of action.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d

176, 187; accord, Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25

Cal.4th 809, 815; Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th

520, 531, fn. 4.)

To align the actual application of the limitations defense more closely with

the policy goals animating it, the courts and the Legislature have over time

developed a handful of equitable exceptions to and modifications of the usual rules

governing limitations periods. These doctrines may alter the rules governing

either the initial accrual of a claim, the subsequent running of the limitations

period, or both. The “ „most important‟ ” of these doctrines, the discovery rule,

where applicable, “postpones accrual of a cause of action until the plaintiff

discovers, or has reason to discover, the cause of action.” (Norgart v. Upjohn Co.,

supra, 21 Cal.4th at p. 397; accord, Fox v. Ethicon Endo-Surgery, Inc., supra, 35

Cal.4th at p. 807.) Equitable tolling, in turn, may suspend or extend the statute of

limitations when a plaintiff has reasonably and in good faith chosen to pursue one

among several remedies and the statute of limitations‟ notice function has been

served. (McDonald v. Antelope Valley Community College Dist. (2008) 45

Cal.4th 88, 99-100.) The doctrine of fraudulent concealment tolls the statute of

limitations where a defendant, through deceptive conduct, has caused a claim to

grow stale. (Regents of University of California v. Superior Court (1999) 20

Cal.4th 509, 533.) 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.

5

(Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811-818; see also National

Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101, 118.) Finally,

under the theory of continuous accrual, a series of wrongs or injuries may be

viewed as each triggering its own limitations period, such that a suit for relief may

be partially time-barred as to older events but timely as to those within the

applicable limitations period. (Howard Jarvis Taxpayers Assn. v. City of La

Habra, supra, 25 Cal.4th at pp. 818-822.)3

II. Common Law Accrual and the UCL

We consider the application of common law rules to the UCL in deciding

when a UCL claim accrues.

We begin with the language of the UCL‟s statute of limitations. “Any

action to enforce any cause of action pursuant to [the UCL] shall be commenced

within four years after the cause of action accrued.” (§ 17208.) Neither section

17208 nor any other part of the UCL offers a definition of what it means for a

UCL claim to accrue; this is not a limitations statute in which the Legislature has

assumed the task of articulating the specific ways in which established common

law principles may or may not apply. (Cf. Quarry v. Doe I (2012) 53 Cal.4th 945,

983-984 [discussing Code Civ. Proc., § 340.1, which legislatively supplants

common law delayed-discovery principles]; Jordache Enterprises, Inc. v. Brobeck,

Phleger & Harrison, supra, 18 Cal.4th at pp. 756-758 [discussing Code Civ.

Proc., § 340.6, which legislatively supplants common law equitable-tolling

principles].)

3 These last two exceptions, the continuing violation doctrine and the theory

of continuous accrual, are branches of the principles that apply to continuing

wrongs. We discuss them in more depth below. (See post, at pp. 13-17.)

6

This silence triggers a presumption in favor of permitting settled common

law accrual rules to apply. “As a general rule, „[u]nless expressly provided,

statutes should not be interpreted to alter the common law, and should be

construed to avoid conflict with common law rules. [Citation.] “A statute will be

construed in light of common law decisions, unless its language „ “clearly and

unequivocally discloses an intention to depart from, alter, or abrogate the

common-law rule concerning the particular subject matter . . . .” [Citations.]‟

[Citation.]” ‟ ” (California Assn. of Health Facilities v. Department of Health

Services (1997) 16 Cal.4th 284, 297.) We thus may assume the Legislature

intended the well-settled body of law that has built up around accrual, including

the traditional last element rule and its equitable exceptions, to apply fully here.

The legislative history, moreover, indicates the Legislature intended the

UCL‟s limitations period to be subject to the usual judicial rules governing

accrual, rather than to special legislatively declared accrual rules. Section 17208

was passed in 1977 as part of an act that consolidated and recodified existing state

unfair competition laws without substantive change in the Business and

Professions Code. (Stats. 1977, ch. 299, § 1, p. 1203; Assem. Off. of Research, 3d

reading analysis of Assem. Bill No. 1280 (1977-1978 Reg. Sess.) as introduced

Mar. 31, 1977, p. 1.) The adoption of an express statute of limitations was not

intended to modify but to clarify the presumed applicable limitations period.

(Assem. Com. on Judiciary, Bill Digest of Assem. Bill No. 1280 (1977-1978 Reg.

Sess.) p. 1.) On the question of accrual, legislative committee reports are

conspicuously silent, and the enrolled bill report expressly confirms the

understanding that the subject is to be governed not by statute but by judicial

construction: “Questions concerning the point at which the statute of limitations

begins will be left to judicial decision.” (Governor‟s Off. of Legal Affairs,

Enrolled Bill Rep. on Assem. Bill No. 1280 (1977-1978 Reg. Sess.) June 27, 1977,

7

p. 1.) It thus appears the Legislature, by passing a bare-bones limitations statute

and delegating to the judiciary the task of defining the point of accrual in

particular cases, left courts free to determine whether the circumstances in each

case call for application of either the general last element rule of accrual or any of

its equitable exceptions.

In this case, the trial court concluded “because this is a [UCL section]

17200 claim . . . there is no continuing practices doctrine that applies here.”

Affirming, the Court of Appeal majority held that a UCL claim necessarily

“accrues when the defendant‟s conduct occurs, not when the plaintiff learns about

the conduct.” It went on to conclude that in addition to delayed discovery, the

continuing violation doctrine also is categorically inapplicable to UCL claims.

In treating the UCL as exceptional for accrual purposes, the trial court and

the Court of Appeal joined one side of a split in the Courts of Appeal over whether

the UCL should, like any other statute, be interpreted as subject to all the usual

rules of accrual, or whether the statute categorically forecloses modified accrual

based on delayed discovery, continuing-wrong principles, and their ilk. (Compare,

e.g., Salenga v. Mitsubishi Motors Credit of America, Inc. (2010) 183 Cal.App.4th

986, 996 with Broberg v. The Guardian Life Ins. Co. of America (2009) 171

Cal.App.4th 912, 920-921; see Grisham v. Philip Morris U.S.A., Inc. (2007) 40

Cal.4th 623, 634, fn. 7 [acknowledging the split].) The roots of that split trace

back to a single federal trial court decision, Stutz Motor Car of America v. Reebok

Intern., Ltd. (C.D.Cal. 1995) 909 F.Supp. 1353; each subsequent case espousing

the view that the UCL categorically forecloses a common law modification of the

last element accrual rule has relied on Stutz or its progeny without further

reasoning. (See Suh v. Yang (N.D.Cal. 1997) 987 F.Supp. 783, 795; Snapp &

8

Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 891;

Salenga, at p. 996.)4 As we shall explain, Stutz misstated California law.

In support of its conclusion that the UCL categorically foreclosed

application of the accrual exception there at issue (the discovery rule), Stutz

reasoned that (1) the federal Sherman Act (15 U.S.C. § 1 et seq.) and Clayton

Antitrust Act (15 U.S.C. § 12 et seq.) do not permit delayed accrual based on

ignorance of a claim, (2) judicial interpretations of the Sherman and Clayton Acts

apply fully to this state‟s antitrust act, the Cartwright Act (§ 16700 et seq.), and

(implicitly) (3) interpretations of the Cartwright Act are equally applicable to the

unrelated UCL. (Stutz Motor Car of America v. Reebok Intern., Ltd., supra, 909

F.Supp. at p. 1363.) The second and third premises, construing state law, are each

wrong. Interpretations of federal antitrust law are at most instructive, not

conclusive, when construing the Cartwright Act, given that the Cartwright Act was

modeled not on federal antitrust statutes but instead on statutes enacted by

California‟s sister states around the turn of the 20th century. (State of California

ex rel. Van de Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, 1164 [“[J]udicial

interpretation of the Sherman Act, while often helpful, is not directly probative of

the Cartwright drafters‟ intent . . . .”]; see also Clayworth v. Pfizer, Inc. (2010) 49

Cal.4th 758, 772-773.) As well, the Stutz court either assumed without

explanation that decisions governing an antitrust claim under the Cartwright Act

would apply equally to an unfair competition claim under the UCL or mistook one

4 Without referencing Stutz, a subsequent Ninth Circuit case also asserted

that UCL claims never run from the date of their discovery, but it offered only an

ipse dixit, with no reasoning to support its construction of California law. (Karl

Storz Endoscopy-America, Inc. v. Surgical Technologies, Inc. (9th Cir. 2002) 285

F.3d 848, 857; see also Perez v. Nidek Co. Ltd. (S.D.Cal. 2009) 657 F.Supp.2d

1156, 1166 [concluding it was bound by Karl Storz].)

9

for the other. No justification for such a leap is evident; though the Cartwright Act

and the UCL each address aspects of unfair business competition, they have

markedly different origins and scopes. (Compare Texaco, Inc., at pp. 1153-1161

[discussing Cartwright Act‟s origins] and Pacific Gas & Electric Co. v. County of

Stanislaus (1997) 16 Cal.4th 1143, 1147 [discussing Cartwright Act‟s scope] with

Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1263-1264 [discussing

UCL‟s origins and scope].) Despite these errors, Stutz has been accepted without

critical analysis by numerous subsequent federal and state courts.

The contrary view is reflected in more recent cases like Broberg v. The

Guardian Life Ins. Co. of America, supra, 171 Cal.App.4th 912. (See also

Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th

1282, 1295; Miller v. Washington Mut. Bank FA (N.D.Cal. 2011) 776 F.Supp.2d

1064, 1070; Neurontin Marketing & Sales Practices Litigation (D.Mass. 2010)

748 F.Supp.2d 34, 84-85; Clark v. Prudential Ins. Co. of America (D.N.J. 2010)

736 F.Supp.2d 902, 921-923.) Broberg involved a statute of limitations challenge

to a claim of deceptive practices under the UCL. The court reasoned that the

underlying nature of the claim, not its form, should control. (See Jefferson v. J. E.

French Co. (1960) 54 Cal.2d 717, 718 [“[T]the nature of the right sued upon, not

the form of action or the relief demanded, determines the applicability of the

statute of limitations.”].) Consequently, that the cause of action was pleaded

under the UCL should not preclude application of an equitable exception to the

usual accrual rule; just like common law claims challenging fraudulent conduct, a

UCL deceptive practices claim should accrue “only when a reasonable person

would have discovered the factual basis for a claim.” (Broberg, at pp. 920-921.)

Broberg is consistent with both our precedent and the absence of anything in the

text or legislative history of the UCL establishing a legislative desire either to

10

categorically limit or categorically guarantee the application of common law

accrual exceptions under the UCL.

Broberg also highlights an aspect of the statutory scheme salient for

limitations purposes: the UCL is a chameleon. The UCL affords relief from

unlawful, unfair, or fraudulent acts; moreover, under the unlawful prong, the UCL

“ „ “borrows” violations of other laws and treats them as unlawful practices‟ that

the unfair competition law makes independently actionable.” (Cel-Tech

Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th

163, 180.) Depending upon which prong is invoked, a UCL claim may most

closely resemble, in terms of the right asserted, an action for misrepresentation

(e.g., Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310), misappropriation

(e.g., Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018), price

fixing (e.g., Clayworth v. Pfizer, Inc., supra, 49 Cal.4th 758), interference with

prospective economic advantage (Korea Supply Co. v. Lockheed Martin Corp.

(2003) 29 Cal.4th 1134), or any of countless other common law and statutory

claims. Given the widely varying nature of the right invoked, it makes sense to

acknowledge that a UCL claim in some circumstances might support the potential

application of one or another exception (e.g., Broberg v. The Guardian Life Ins.

Co. of America, supra, 171 Cal.App.4th at pp. 920-921), and in others might not

(e.g., M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal.App.4th

1509, 1531-1532 [concluding that while in theory delayed discovery might

preserve an unfair competition claim, the nature of the particular UCL claim

asserted precluded its application]).5

5 As well, the UCL and its remedies are equitable. (Korea Supply Co. v.

Lockheed Martin Corp., supra, 29 Cal.4th at p. 1144.) It would be inconsistent to

conclude that while equity may drive the availability of remedies under the UCL,

(footnote continued on next page)

11

Accordingly, we conclude the UCL is governed by common law accrual

rules to the same extent as any other statute. That a cause of action is labeled a

UCL claim is not dispositive; instead, “the nature of the right sued upon”

(Jefferson v. J. E. French Co., supra, 54 Cal.2d at p. 718) and the circumstances

attending its invocation control the point of accrual. The common law last

element accrual rule is the default (see Neel v. Magana, Olney, Levy, Cathcart &

Gelfand, supra, 6 Cal.3d at p. 187), while exceptions to that rule apply precisely to

the extent the preconditions for their application are met, as would be true under

any other statute. We disapprove Snapp & Associates Ins. Services, Inc. v.

Robertson, supra, 96 Cal.App.4th 884, and Salenga v. Mitsubishi Motors Credit of

America, Inc., supra, 183 Cal.App.4th 986, to the extent they hold otherwise.

III. Canon’s Statute of Limitations Defense

We turn to the application of these principles to this case. Canon bears the

initial burden of proving Aryeh‟s claims are barred by section 17208‟s four-year

limitations period. (See, e.g., Samuels v. Mix (1999) 22 Cal.4th 1, 7-10.)

Thereafter, the burden shifts to Aryeh to demonstrate his claims survive based on

one or more nonstatutory exceptions to the basic limitations period. (See Glue-

Fold, Inc. v. Slautterback Corp., supra, 82 Cal.App.4th at p. 1030.) That burden

may be imposed even at the pleading stage. (Fox v. Ethicon Endo-Surgery, Inc.,

supra, 35 Cal.4th at p. 808.)

Canon has shown that under the default last element accrual rule, a claim

accrued in February 2002. (See, e.g., Pooshs v. Philip Morris USA, Inc., supra, 51

Cal.4th at p. 797 [a claim generally accrues when it is “ „complete with all of its

(footnote continued from previous page)

equitable exceptions have no place in determining whether a claim for relief has

been timely asserted in the first instance.

12

elements‟—those elements being wrongdoing, harm, and causation”].) According

to the operative complaint, Aryeh and Canon entered into a pair of copier leases in

November 2001 and February 2002. The agreements did not authorize charges for

test copies. Nevertheless, beginning in February 2002, Canon imposed excess

copying charges for test copies. It follows that no later than February 2002,

Canon‟s alleged wrongdoing caused Aryeh injury and a claim accrued.

Accordingly, in the absence of an exception, the four-year statute of limitations

would have run no later than 2006, barring Aryeh‟s 2008 suit.

To preserve his suit, Aryeh looks to continuing-wrong accrual principles.

There are two main branches, the continuing violation doctrine and the theory of

continuous accrual. (See, e.g., Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at

pp. 811-818 [continuing violation doctrine]; Howard Jarvis Taxpayers Assn. v.

City of La Habra, supra, 25 Cal.4th at pp. 818-822 [theory of continuous

accrual].)6

The continuing violation doctrine serves a number of equitable purposes.

Some injuries are the product of a series of small harms, any one of which may not

be actionable on its own. (See National Railroad Passenger Corporation v.

Morgan, supra, 536 U.S. at p. 115.) Those injured in such a fashion should not be

handicapped by the inability to identify with certainty when harm has occurred or

has risen to a level sufficient to warrant action. (Yanowitz v. L’Oreal USA, Inc.

(2005) 36 Cal.4th 1028, 1058; Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at

6 Some courts and commentators have alternately referred to the two

branches as the “ „pure‟ ” and the “ „modified‟ ” forms of the continuing violations

doctrine. (See White v. Mercury Marine, Div. of Brunswick, Inc. (11th Cir. 1997)

129 F.3d 1428, 1430; Graham, The Continuing Violations Doctrine (2007-2008)

43 Gonzaga L.Rev. 271, 279-283.)

13

pp. 820-821.) Moreover, from a court-efficiency perspective, it is unwise to

impose a limitations regime that would require parties to run to court in response

to every slight, without first attempting to resolve matters through extrajudicial

means, out of fear that delay would result in a time-barred action. (Yanowitz, at

pp. 1058-1059; Richards, at pp. 820-821.) Allegations of a pattern of reasonably

frequent and similar acts may, in a given case, 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.

(Yanowitz, at p. 1059; Richards, at p. 823; see also Komarova v. National Credit

Acceptance, Inc. (2009) 175 Cal.App.4th 324, 345 [applying the doctrine to

harassing debt collection activities].)

Here, however, nothing in the operative complaint alleges the presence of

factors that might warrant application of the continuing violation doctrine. The

complaint identifies a series of discrete, independently actionable alleged wrongs.

Nor is this a case in which a wrongful course of conduct became apparent only

through the accumulation of a series of harms; Aryeh concedes he was aware of,

recognized as wrongful, and was recording as early as 2002, Canon‟s allegedly

fraudulent and unfair acts. (Cf. Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th

at p. 1058 [applying the continuing violations doctrine where “some or all of the

component acts might not be individually actionable” and the plaintiff “may not

yet recognize” the acts “as part of a pattern”].) Consequently, the trial court and

the Court of Appeal correctly rejected the continuing violation doctrine‟s

application.

Recognizing this, Aryeh focuses before us on the theory of continuous

accrual. The theory 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

14

misconduct; parties engaged in long-standing misfeasance would thereby obtain

immunity in perpetuity from suit even for recent and ongoing misfeasance. In

addition, where misfeasance is ongoing, a defendant‟s claim to repose, the

principal justification underlying the limitations defense, is vitiated.

To address these concerns, we have long settled that separate, recurring

invasions of the same right can each trigger their own statute of limitations. In

Dryden v. Board of Pension Commrs. (1936) 6 Cal.2d 575, for example, a widow

belatedly sued for a pension after a six-month period for the presentation of claims

had expired. Because “[t]he right to pension payments is a continuing right,” the

expired limitations period did not leave the plaintiff “without means to enforce the

right to present and future pension payments, as distinguished from past and

accrued pension payments” (id. at pp. 580-581, italics omitted); instead, the suit

was timely as to these most recent and future owed payments. Similarly, in

Howard Jarvis Taxpayers Assn. v. City of La Habra, supra, 25 Cal.4th 809, the

plaintiffs belatedly challenged the validity of a municipal tax. Though the

limitations period had run on any direct challenge to the validity of the ordinance

imposing the tax, we concluded suit was still permissible because the continuing

monthly collection of the tax represented an alleged ongoing breach of state law.

(Id. at pp. 818-822; see also Green v. Obledo (1981) 29 Cal.3d 126, 141 [“[E]ach

deficient payment constitutes a separate violation triggering the running of a new

period of limitations . . . .”].)

Generally speaking, continuous accrual applies whenever there is a

continuing or recurring obligation: “When an obligation or liability arises on a

recurring basis, a cause of action accrues each time a wrongful act occurs,

triggering a new limitations period.” (Hogar Dulce Hogar v. Community

Development Commission (2003) 110 Cal.App.4th 1288, 1295.) Because each

new breach of such an obligation provides all the elements of a claim—

15

wrongdoing, harm, and causation (Pooshs v. Philip Morris USA, Inc., supra, 51

Cal.4th at p. 797)—each may be treated as an independently actionable wrong

with its own time limit for recovery.

However, unlike the continuing violation doctrine, which renders an entire

course of conduct actionable, the theory of continuous accrual supports recovery

only for damages arising from those breaches falling within the limitations period.

In Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, for example, an employee

sued for sex discrimination in her wages. The unlawful practice had gone on for

six years. While the applicable two-year statute of limitations did not bar suit,

because the obligation not to discriminate in setting wages was an ongoing one,

we concluded it limited the employee to recovery only of those lost wages owed

during the preceding two years. (Id. at pp. 103-107; see also Green v. Obledo,

supra, 29 Cal.3d at p. 141 [recovery limited to payments that accrued within the

limitations period preceding suit]; Dryden v. Board of Pension Commrs., supra,

6 Cal.2d at p. 582 [same].) “[T]he continuing accrual rule effectively limits the

amount of retroactive relief a plaintiff or petitioner can obtain to the benefits or

obligations which came due within the limitations period.” (Hogar Dulce Hogar

v. Community Development Commission, supra, 110 Cal.App.4th at p. 1296.)7

Consequently, if applicable here, the theory would permit Aryeh to sue, but only

for those discrete acts occurring within the four years immediately preceding the

filing of his suit.

Canon correctly notes that we have applied the theory of continuous accrual

largely in suits against public entities, but nothing in the rationale underlying the

7 This limit serves the salutary purpose of promoting diligence among would-

be plaintiffs and reducing the risk of suits on stale evidence.

16

doctrine so limits it, and the Courts of Appeal have properly applied the rule

equally to continuing or recurring obligations owed by private entities. Thus, in

Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334,

1344, the Court of Appeal concluded a commercial landlord‟s 1993 suit for back

rent dating to 1982 was not barred; rather, the periodic monthly payments owed

were a recurring obligation, with a new limitations period arising for each, and the

landlord could seek disputed amounts for the duration of the limitations period

preceding suit. And in Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co.

(2004) 116 Cal.App.4th 1375, 1388-1389, the Court of Appeal concluded a gas

and oil lease calling for monthly payments created a severable, recurring

obligation, with each monthly payment triggering its own statute of limitations.

Accordingly, the plaintiff could sue for underpayments within the limitations

period preceding suit. (See also Wells Fargo Bank v. Bank of America (1995)

32 Cal.App.4th 424, 439, fn. 7; Conway v. Bughouse, Inc. (1980) 105 Cal.App.3d

194, 199-200; cf. Klehr v. A. O. Smith Corp. (1997) 521 U.S. 179, 189-190 [noting

the availability of the theory of continuous accrual in antitrust suits against private

entities].)

To determine whether the continuous accrual doctrine applies here, we look

not to the claim‟s label as a UCL claim but to the nature of the obligation allegedly

breached. (See ante, at pp. 10-12.) Canon billed Aryeh on a recurring monthly

basis. Accepting the truth of the complaint‟s allegations solely for purposes of

resolving Canon‟s limitations defense on demurrer, those bills periodically

included test copy charges that were unfair or fraudulent. By its nature, the duty

Canon owed—the duty not to impose unfair charges in monthly bills—was a

continuing one, susceptible to recurring breaches. Accordingly, each alleged

breach must be treated as triggering a new statute of limitations. (Hogar Dulce

Hogar v. Community Development Commission, supra, 110 Cal.App.4th at

17

p. 1295 [“When an obligation or liability arises on a recurring basis, a cause of

action accrues each time a wrongful act occurs, triggering a new limitations

period.”]; see also Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co., supra,

116 Cal.App.4th at pp. 1388-1391 [treating each disputed monthly bill as

triggering a new statute of limitations]; Tsemetzin v. Coast Federal Savings &

Loan Assn., supra, 57 Cal.App.4th at p. 1344 [same].) Aryeh cannot recover

alleged excess charges preceding the four-year limitations period, but is not

foreclosed from seeking recovery for charges to the extent they fall within that

period. Because the complaint alleges excess charges within the four years

preceding suit, it is not completely barred by the statute of limitations.8

Canon argues that the theory of continuous accrual should not save Aryeh‟s

complaint because his claim is at its heart a fraud claim. That is, according to

Canon, the complaint actually describes a single fraud or deception committed in

2001 or 2002, when the parties entered their contracts, rather than a recurring

wrongful act; the duty owed and allegedly breached is not a continuing one, but

instead the duty not to engage in fraud or deception, a duty the complaint shows

was breached at the latest in 2002, and whose breach was discovered almost

immediately thereafter. (See State of California ex rel. Metz v. CCC Information

Services, Inc. (2007) 149 Cal.App.4th 402, 418 [rejecting application of the

continuous accrual rule to a suit over allegedly fraudulent statements where every

8 Contrary to Canon‟s objections, the operative complaint in fact pleads this

matter as a continuous accrual case. It alleges each monthly overcharge as a

distinct breach and forswears recovery of charges incurred more than four years

before the filing of the complaint. Although earlier versions of the complaint did

not specify each overcharge was a distinct claim, nothing in the theory of

continuous accrual requires every severable act to be pleaded as a distinct cause of

action, nor is any allegation in the two prior complaints inconsistent with applying

the theory here.

18

alleged statement arose out of a transaction occurring before the limitations period

ran, and the suit thus involved neither “a recurring obligation” nor “periodic

payment obligations”].)

We might agree if the operative complaint sounded solely in fraud and

alleged a single fraud committed at contract formation. However, “ „[I]t is error

for a . . . court to sustain a demurrer when the plaintiff has stated a cause of action

under any possible legal theory.‟ ” (Fox v. Ethicon Endo-Surgery, Inc., supra, 35

Cal.4th at p. 810.) On its face, the operative complaint, like the two preceding it,

alleges that the recurring imposition of excess charges was not only fraudulent but

also unfair. Whether the charges are actionable as an unfair business practice

under the UCL is not before us at this stage; if they are actionable as such, each

monthly imposition of excess charges would constitute a new unfair act with its

own attendant limitations period.9

Canon also relies on Snapp & Associates Ins. Services, Inc. v. Robertson,

supra, 96 Cal.App.4th 884, but that case does not bar application of continuous

accrual here. In Snapp, the defendant insurance brokerage allegedly

misappropriated client accounts and thereafter received commissions on the

accounts. Because the act of misappropriation had occurred more than four years

before suit was filed, the court found an action for conversion and related counts,

including violation of the UCL, time-barred. (Snapp, at pp. 891-892.) Snapp,

however, omits discussion of the theory of continuous accrual and thus is not

9 We do not suggest that, to the extent the operative complaint does allege a

fraud theory, it is timely. We hold only that, because the complaint alleges an

alternate theory that continuous accrual principles save in part, the complaint as a

whole is not entirely time-barred.

19

authority on the question whether continuous accrual might have applied there, or

might apply here.

In sum: At the demurrer stage, Aryeh is the master of his complaint, and

we must accept his allegations at face value. He has alleged a recurring unfair

act—the inclusion in monthly bills of charges for copies Canon itself made. The

theory of continuous accrual applies to such allegations, and insofar as the

operative complaint alleges at least some such acts within the four years preceding

suit, the suit is not entirely time-barred.

DISPOSITION

We express no opinion as to the validity of other defenses asserted by

Canon in its demurrer or the availability of any defenses at a later stage of the

proceedings. We hold only that, at the demurrer stage, Aryeh‟s complaint is not

barred in its entirety by the statute of limitations. As that was the Court of

Appeal‟s sole basis for affirming the trial court‟s dismissal of this action, its

judgment must be reversed. We remand for further proceedings not inconsistent

with this opinion.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

20

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Aryeh v. Canon Business Solutions, Inc.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 185 Cal.App.4th 1159

Rehearing Granted

__________________________________________________________________________________

Opinion No. S184929

Date Filed: January 24, 2013

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Robert L. Hess

__________________________________________________________________________________

Counsel:

Westrup Klick, R. Duane Westrup, Mark L. Van Buskirk, Jennifer L. Connor; Krieger & Krieger, Linda

Guthmann Krieger and Terrence B. Krieger for Plaintiff and Appellant.

Arbogast & Berna, David M. Arbogast; Spiro Moss, J. Mark Moore and Denise L. Diaz for Consumer

Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Manuel M. Medeiros, State Solicitor General, Frances T. Grunder,

Assistant Attorney General, and Michele Van Gelderen, Deputy Attorney General, as Amici Curiae on

behalf of Plaintiff and Appellant.

Kasowitz, Benson, Torres & Friedman, Charles N. Freiberg, Brian P. Brosnahan, David A. Thomas, Jacob

N. Foster, Jeanette E. Thurber; Levine & Miller, Harvey R. Levine and Craig A. Miller for Beverly Clark,

Warren Gold and Linda M. Cusanelli as Amici Curiae on behalf of Plaintiff and Appellant.

Dorsey & Whitney, Kent J. Schmidt, John P. Cleveland, Richard H. Silberberg and Robert G. Manson for

Defendant and Respondent.

Bowman and Brooke, Larry R. Ramsey and Renee S. Konigsberg for Association of Southern California

Defense Counsel as Amicus Curiae on behalf of Plaintiff and Appellant.

Counsel who argued in Supreme Court (not intended for publication with opinion):

R. Duane Westrup

Westrup Klick

444 Ocean Boulevard, Suite 1614

Long Beach, CA 90802-4524

(562) 432-2551

Kent J. Schmidt

Dorsey & Whitney

600 Anton Boulevard, Suite 2000

Costa Mesa, CA 92626

(714) 800-1400