Sznyter v. Malone, No. D050584.

CourtCalifornia Court of Appeals
Writing for the CourtHuffman
Citation66 Cal.Rptr.3d 633,155 Cal.App.4th 1152
PartiesEdward W. SZNYTER, Plaintiff and Appellant, v. Robert J. MALONE, D.D.S., Defendant and Respondent.
Docket NumberNo. D050584.
Decision Date02 October 2007
66 Cal.Rptr.3d 633
155 Cal.App.4th 1152
Edward W. SZNYTER, Plaintiff and Appellant,
v.
Robert J. MALONE, D.D.S., Defendant and Respondent.
No. D050584.
Court of Appeal, Fourth District, Division 1.
October 2, 2007.

[66 Cal.Rptr.3d 634]

Edward W. Sznyter, in pro. per., for plaintiff and appellant.

Koeller, Nebeker, Carlson & Haluck, Robert W. Harrison, Patrick J. Kearns, San Diego; Neil, Dymott, Frank, Harrison & McFall and James A. McFall, San Diego, for defendant and respondent.

HUFFMAN, Acting P.J.


In this limited civil action arising under 47 United States Code section 227, commonly known as the Telephone Consumer Protection Act of 1991 ("TCPA" or the Act), we must determine whether a state or federal statute of limitations correctly applies, where plaintiff is asserting a private right of action for damages for violations of the Act. The matter was certified for transfer to this Court on the motion of the Superior Court's Appellate Division, after it affirmed the trial court's judgment on the pleadings in favor of the defendant and respondent, the sender of the disputed communications from whom the plaintiff seeks damages under the Act. Both courts determined that the action was timebarred under California law. (Code Civ. Proc.,1 § 338, subd. (a); Cal. Rules of Court, rule 8.1005.)

Plaintiff Edward W. Sznyter, in propria persona (appellant), alleges he incurred $12,000 damages due to his receipt in 2001-2002 of two sets of two advertising faxes sent to him by the defendant and respondent, Robert J. Malone, D.D.S., a professional corporation (respondent). Appellant's complaint was dismissed after the trial court granted a defense motion for judgment on the pleadings, finding that the action was filed too late under the three-year limitations period applicable to a statutory cause of action pursuant to section 338, subdivision (a).

Appellant argues the trial court erred in failing to apply the four-year limitations period set forth in 28 United States Code section 1658, which is a federal catchall

66 Cal.Rptr.3d 635

statute of limitations that applies to cases in which the federal statute giving rise to the action was enacted after 1990 and does not specify its own limitations rules. He further contends supplemental discovery was erroneously denied.

We agree with appellant that the federal provision controls, for the reasons specified below. Since we will reverse on that issue, we find it unnecessary to address the alleged discovery errors, and direct that the trial court conduct further appropriate proceedings.

FACTUAL AND PROCEDURAL HISTORY
A
Complaint, Discovery Request and Motions

The complaint was filed as a limited civil action on May 6, 2005, in San Diego Superior Court. Appellant alleges he received four facsimile transmissions from respondent between May 7, 2001 and January 29, 2002, in violation of the TCPA. He claims he had two telephone numbers and there were eight violations, for which he sought $4,000 in damages, along with treble damages, for a total of $12,000 for the receipt of those advertising transmissions. (42 U.S.C. § 227(b)(3)(B), (Q.)

The briefs and the superior court file show that this is the second complaint filed by appellant for two of the same alleged 2001 violations. In 2001, his previous small claims action was dismissed by the small claims court, on the grounds that there was then no recognized state private right of action under this statutory scheme. After another appellate court issued a published decision, Kaufman v. ACS Systems, Inc. (2003) 110 Cal.App.4th 886, 2 Cal.Rptr.3d 296 (Kaufman), finding that a private right of action in state court was permissible under the TCPA statute, appellant filed the current complaint.

Appellant served written discovery on respondent on November 10, 2005. Respondent provided responses on December 15, 2005, stating, among other things, that he had retained a company called Fax.com for advertising purposes and believed they were acting in accordance with the applicable law. Correspondence ensued between appellant and counsel for respondent about the adequacy of the responses. Apparently, on February 3, 2006, appellant served respondent with a notice of motion to compel supplemental responses. That document showed a proposed hearing date of March 30, 2006, but its proof of service does not also include any supporting documents, such as points and authorities, declarations, or a statement that leave of court had been obtained as a departmental prerequisite to filing a motion to compel supplemental responses. (§§ 2030.300, subd. (c); 2033.290, subd. (c).)

On February 7, 2006, respondent filed his motion for judgment on the pleadings on the grounds that appellant's complaint was time-barred by the applicable state limitations period for a claim based upon statute (§ 338, subd. (a) [setting a three-year period for the filing of "[a]n action upon a liability created by statute, other than a penalty or forfeiture"].) Under this view, appellant had only until January 29, 2005, three years after the last fax received, to file the complaint. Respondent argued that the language of the TCPA sufficiently referenced those state procedural rules, because 47 United States Code section 227(b)(3) allows a plaintiff to pursue a private right of action seeking damages "if otherwise permitted by the laws or rules of court of a State...."

Appellant responded that since the TCPA was not enacted until 1991, and since the above quoted language (in 47

66 Cal.Rptr.3d 636

U.S.C. § 227(b)(3)) does not expressly provide for a clearly applicable limitations period, then the federal statute of limitations found in 28 United States Code section 1658(a) should apply, providing a four-year limitations period, as follows: "Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be; commenced later than 4 years after the cause of action accrues," 28 United States Code section 1658, the catchall statute, part of the Judicial Improvements Act, was enacted in 1990. (Jones v. R.R. Donnelley & Sons Co. (2004) 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (Jones).)

B
Judgment on the Pleadings and Appeals

Following oral argument, the trial court confirmed a tentative ruling granting judgment on the pleadings for respondent. The court determined appellant's action was time-barred, on the basis that the statute of limitations for a private right of action under the TCPA should be the state law applicable to statutory causes of action, section 338, subdivision (a). The trial court explained at the hearing:

"The [TCPA], which is what you are seeking to enforce here, says that you can file ... a private action if it's otherwise permitted by the laws of the state. And obviously this is the state of California. Okay. So if you are going to seek to enforce the [TCPA] in California, then you have to look at what the [TCPA] says. You can file that action as long as you comply with whatever laws apply to such an action in the state courts of that state ... and the state of California law is this C.C.P. 338(a) ... then you have to bring that within three years."

The court further found the federal limitations statute should not apply because the TCPA "otherwise provided" for a limitations period, through its reference to the permission of the laws or rules of court of a state. (42 U.S.C. § 227(b)(3).) Further, no tolling period applied, due to the previous small claims action or otherwise. These rulings disposed of the action in its entirety.

Appellant filed his notice of appeal to the Appellate Division of the Superior Court on April 26, 2006, referring to both the judgment and the denial of discovery. The appellate court affirmed the trial court's rulings, and issued an order certifying transfer to this court, based on the need for uniformity of decision or to settle an important question of law, which it identified as follows: "the statute of limitations applicable to these cases. There are no published California cases addressing this issue. As most TCPA claims are brought in small claims court and are not appealed, this case presents a rare opportunity to obtain a published decision by the Court of Appeal on this recurring issue." (Cal. Rules of Court, rule 8.1002.)

DISCUSSION

To resolve the question of which statute of limitations should apply to this case, we first outline the relevant statutory language and previous interpretations of the TCPA on related procedural points. We then refer to the policies generally applicable to California limitations rules, and also, due to the 1991 date of enactment of the TCPA, we consider the applicability of the 1990 federal "catchall" statute of limitations found in 28 United States Code section 1658. In Jones, supra, 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645, the United States Supreme Court analyzed the policies promoted by the federal catchall statute of limitations, such as uniformity of

66 Cal.Rptr.3d 637

decision, in the comparable context of civil rights cases arising under recent amendments to 42 United States Code section 1981 that postdated the federal catchall provision.

With that background, we can then explain the applicability of the federal catchall statute in this situation.

I
TCPA STATUTORY SCHEME: BACKGROUND

The TCPA is one section of chapter 5 of title 47 of the United States Code, found at 47 United States Code section 151 et seq. (wire and radio communication). Under the TCPA (47 U.S.C. § 227), and specifically subdivision (b)(3), a private right of action to seek damages for violations may be pursued as follows: "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State.... (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.......

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8 practice notes
  • Wellington Homes, Inc. v. W. Dundee China Palace Rest., Inc., No. 2–12–0740.
    • United States
    • United States Appellate Court of Illinois
    • March 13, 2013
    ...28 U.S.C. § 1658(a) applies, and three have determined that a shorter state statute of limitations applies. Compare Sznyter v. Malone, 155 Cal.App.4th 1152, 66 Cal.Rptr.3d 633, 644 (2007) (holding that the four-year federal catchall statute of limitations applies to TCPA claims in state cou......
  • Anderson Office Supply, Inc. v. Advanced Med. Assocs., P.A., No. 105,868.
    • United States
    • Court of Appeals of Kansas
    • March 16, 2012
    ...cause of action available only ‘if otherwise permitted’ by state law.” 379 N.J.Super. at 488, 879 A.2d 1185. See Sznyter v. Malone, 155 Cal.App.4th 1152, 1168, 66 Cal.Rptr.3d 633 (2007); Benedia v. Super Fair Cellular, Inc., 2007 WL 2903175 (N.D.Ill.2007) (unpublished opinion). In oppositio......
  • Worsham v. Fairfield, No. 1058, September Term, 2007.
    • United States
    • Court of Special Appeals of Maryland
    • September 30, 2009
    ...3. Among the cases that have held that the 4-year limitation period provided by 28 U.S.C. § 1658(a) applies are: Sznyter v. Malone, 155 Cal.App.4th 1152, 1167, 66 Cal.Rptr.3d 633, 644 (2007); Zelma v. Konikow, 379 N.J.Super. 480, 488, 879 A.2d 1185 (2005); Stern v. Bluestone, 47 A.D.3d 576,......
  • Wellington Homes, Inc. v. W. Dundee China Palace Rest., Inc., No. 2-12-0740
    • United States
    • United States Appellate Court of Illinois
    • February 4, 2013
    ...28 U.S.C. § 1658(a) applies, and three have determined that a shorter state statute of limitations applies. Compare Sznyter v. Malone, 66 Cal. Rptr. 3d 633, 644 (Cal. Ct. App. 2007) (holding that the four-year federal catchall statute of limitations applies to TCPA claims in state court), A......
  • Request a trial to view additional results
8 cases
  • Wellington Homes, Inc. v. W. Dundee China Palace Rest., Inc., No. 2–12–0740.
    • United States
    • United States Appellate Court of Illinois
    • March 13, 2013
    ...28 U.S.C. § 1658(a) applies, and three have determined that a shorter state statute of limitations applies. Compare Sznyter v. Malone, 155 Cal.App.4th 1152, 66 Cal.Rptr.3d 633, 644 (2007) (holding that the four-year federal catchall statute of limitations applies to TCPA claims in state cou......
  • Anderson Office Supply, Inc. v. Advanced Med. Assocs., P.A., No. 105,868.
    • United States
    • Court of Appeals of Kansas
    • March 16, 2012
    ...cause of action available only ‘if otherwise permitted’ by state law.” 379 N.J.Super. at 488, 879 A.2d 1185. See Sznyter v. Malone, 155 Cal.App.4th 1152, 1168, 66 Cal.Rptr.3d 633 (2007); Benedia v. Super Fair Cellular, Inc., 2007 WL 2903175 (N.D.Ill.2007) (unpublished opinion). In oppositio......
  • Worsham v. Fairfield, No. 1058, September Term, 2007.
    • United States
    • Court of Special Appeals of Maryland
    • September 30, 2009
    ...3. Among the cases that have held that the 4-year limitation period provided by 28 U.S.C. § 1658(a) applies are: Sznyter v. Malone, 155 Cal.App.4th 1152, 1167, 66 Cal.Rptr.3d 633, 644 (2007); Zelma v. Konikow, 379 N.J.Super. 480, 488, 879 A.2d 1185 (2005); Stern v. Bluestone, 47 A.D.3d 576,......
  • Wellington Homes, Inc. v. W. Dundee China Palace Rest., Inc., No. 2-12-0740
    • United States
    • United States Appellate Court of Illinois
    • February 4, 2013
    ...28 U.S.C. § 1658(a) applies, and three have determined that a shorter state statute of limitations applies. Compare Sznyter v. Malone, 66 Cal. Rptr. 3d 633, 644 (Cal. Ct. App. 2007) (holding that the four-year federal catchall statute of limitations applies to TCPA claims in state court), A......
  • Request a trial to view additional results

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