Kopp v. Door to Door Storage CA2/7

Filed 5/16/16 Kopp v. Door to Door Storage CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MADELEINE KOPP, B266202

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC515507)
v.

DOOR TO DOOR STORAGE, INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Holly E.
Kendig, Judge. Affirmed.
Law Offices of Dale Washington and Dale E. Washington for Plaintiff and
Appellant.
Lewis Brisbois Bisgaard & Smith, Hellar-Ann Hancock for Defendant and
Respondent.
________________
 After Door to Door Storage, Inc. (DTD), a self-service storage provider, placed a
lien on, and then sold, Madeleine Kopp’s property, Kopp sued DTD for conversion and
violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.).
The trial court granted summary adjudication on those claims, finding they were time-
barred, and denied Kopp’s request for leave to amend her complaint to assert a cause of
action for breach of written contract. On appeal Kopp contends triable issues of material
fact exist as to DTD’s limitations defense and the court abused its discretion in denying
her leave to amend. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
1. Kopp’s Lawsuit
Kopp entered into a storage agreement with Public Storage Pickup &
Delivery, L.P., DTD’s predecessor in interest, in August 2005. In October 2009 DTD
purchased assets of Public Storage and assumed its existing contractual obligations.
DTD sent written notice to Kopp of this transaction on October 7, 2009, informing her
the “terms of [her] contract will remain unchanged unless and until you enter into a
separate agreement with Door to Door.”
Beginning in December 2009 and continuing through March 2010, DTD sent
several written notices to Kopp informing her that her account was past due. When Kopp
did not respond by bringing her account current, in early 2010 DTD placed a lien on and
then sold the property Kopp stored at a DTD facility.
On July 17, 2013 Kopp sued DTD. In her first amended complaint she asserted
claims for a violation of the California Self-Service Storage Facility Act (SSSFA) (Bus.
& Prof. Code, § 21700 et seq.), breach of contract, violation of the CLRA and
conversion.
2. DTD’s Demurrer to the First Amended Complaint
On December 24, 2013 DTD demurred to the first amended complaint. DTD
argued, among other things, because Kopp admitted in her complaint she had received a
warehouse receipt in exchange for the storage of her goods, the SSSFA did not apply; the

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transaction was instead governed by the Commercial Code. (See Bus. & Prof. Code,
§ 21701.) As to Kopp’s other claims, DTD asserted Kopp had not alleged the requisite
elements of a CLRA violation or a conversion claim and had not specified whether her
contract with DTD was written or oral.
The court sustained DTD’s demurrer to the SSSFA claim, which Kopp did not
1
oppose, without leave to amend. The court sustained the demurrer to the remaining
causes of action, which Kopp did oppose, with leave to amend.
3. Kopp’s Second Amended Complaint and Request To File a Third Amended
Complaint
On June 4, 2014 Kopp filed a second amended complaint limited to claims for
violation of the CLRA and conversion. In particular, as to the CLRA claim, Kopp
alleged the SSSFA governed the transaction and DTD had failed to abide by several
provisions of the SSSFA, including charging late fees that exceeded those permitted
under the SSSFA. As to the conversion claim, she alleged DTD lacked any authority to
impose a lien on, deny her access to, and ultimately sell, her items.
On October 7, 2014 DTD filed an ex parte application to continue the
December 8, 2014 trial date. DTD asserted it had only recently located the written
contract between Public Storage and Kopp, that contract governed the parties’
relationship, and a continuance of the trial date was necessary to permit DTD to amend
its answer and bring a timely summary judgment motion. The court granted the
application and continued the trial date to October 5, 2015.
On October 27, 2014 Kopp moved for leave to file a third amended complaint to
include a cause of action for breach of written contract based on DTD’s recent production

1 Kopp contends she effectively withdrew her SSSFA cause of action, not because
of DTD’s demurrer, but because she recognized there was no private right of action
authorized under the SSSFA. (See generally Lu v. Hawaiian Gardens Casino, Inc.
(2010) 50 Cal.4th 592, 596 [violation of a statute does not give rise to a private cause of
action unless Legislature has “‘manifested an intent to create such a private cause of
action’ under the statute”].)

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of the Public Storage contract. That motion was not scheduled to be heard until June 17,
2015.
4. DTD’s Motion for Summary Judgment/Summary Adjudication Directed to the
Second Amended Complaint
a. DTD’s motion
On March 26, 2015, before its response to Kopp’s motion for leave to file a third
amended complaint was due, DTD moved for summary judgment or, in the alternative,
summary adjudication, directed to the second amended complaint. In its motion,
calendared to be heard on June 12, 2015, five days before the hearing on Kopp’s motion
for leave to amend, DTD argued both the CLRA and the conversion causes of action
were time-barred under the three-year statutes of limitation governing those claims.
In support of its motion DTD provided evidence of Kopp’s written contract with
Public Storage in August 2005, its October 2009 purchase of Public Storage’s assets and
the written notices it sent to Kopp advising her that her account was past due. Kopp
admitted in her deposition she had received a past-due notice dated December 14, 2009
alerting her that her account was delinquent; a past-due notice dated January 14, 2010
stating she owed $285; a preliminary lien notice, dated February 4, 2010, stating that, if
the amount of $360 was not paid in full within 14 days, DTD would place a lien against
her property that “may result in the sale or disposal of her goods”; and a notice dated
February 19, 2010 entitled “Notice of Lien Sale Auction” informing Kopp that, as a result
of her nonpayment, a lien in the amount owed had been placed on the stored property, her
right to use the storage container and access her property was denied, and if payment was
not made in 15 days, DTD would sell her property at a public auction at its warehouse on
2
March 24, 2010 to satisfy the lien. Kopp testified she understood at the time she
received the preliminary lien notice and notice of lien sale that, if she did not make

2 DTD’s counsel provided his own declaration that the notices were mailed on the
dates provided. The court sustained Kopp’s objection to DTD’s counsel’s declaration for
lack of personal knowledge, but noted Kopp had admitted in her deposition that she
received the notices.

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payment, her property would be sold at public auction on March 24, 2010 to satisfy the
lien. DTD also twice published notice of the lien sale in the newspaper, once on
March 9, 2010 and again on March 16, 2010.
DTD’s assistant controller, Carol Tomisser, testified in her declaration that Kopp’s
property was sold at auction on March 24, 2010, more than three years prior to the date
Kopp filed her lawsuit. DTD also provided Kopp’s deposition testimony acknowledging
she did not go to the auction, send an agent to the auction or otherwise send any written
objection to the sale. Kopp explained she tried to call DTD one or more times, but had
been unsuccessful in obtaining a response.
b. Kopp’s opposition
Kopp opposed DTD’s motion for summary judgment/summary adjudication. In
particular, Kopp argued DTD failed to demonstrate her property was sold in March 2010.
Kopp supplied the deposition testimony of Ian Anderson, DTD’s controller and
Tomisser’s supervisor, who had been designated as the company’s person most
knowledgeable for the case and who testified he had arrived at the company in 2014 and
did not know whether Tomisser had been employed by DTD in March 2010. According
to Kopp, Anderson’s deposition testimony undermined Tomisser’s, resulting either in
DTD’s failure to meet its initial burden on summary adjudication/summary judgment as
to when the property was actually sold or, at the very least, raising triable issues of
material fact precluding summary judgment/summary adjudication.
Kopp also argued triable issues of material fact existed as to when she knew or
should have known her items had been sold, which would establish the date of injury
under the delayed discovery doctrine. Kopp emphasized DTD had provided no notice
after the sale confirming the sale had occurred as scheduled and had produced no
documents to that effect in this case. Alternatively, she argued, DTD was equitably
estopped by its own conduct—its failure to respond to Kopp’s telephone calls and failure
to notify Kopp after the sale had occurred—from invoking the statute of limitations as an
affirmative defense.

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 c. The trial court’s ruling granting summary adjudication
On June 12, 2015 the trial court granted DTD’s motion for summary adjudication
as to both of Kopp’s causes of action. (The court explained it would not grant summary
judgment in light of Kopp’s pending motion for leave to amend her complaint.)
The court found Kopp’s CLRA and conversion claims had accrued in February 2010
when Kopp received notice of imposition of the lien and the lien sale and was denied
access to her property. Accordingly, her complaint, filed more than three years later on
July 17, 2013, was time-barred.
5. The Trial Court’s Denial of Leave To File a Third Amended Complaint
On June 4, 2015 DTD opposed Kopp’s motion for leave to file a third amended
complaint, arguing the proposed complaint failed to state a cause of action for breach of
written contract. It also argued the proposed contract claim was time-barred and any
amendment to the complaint at this late date would prejudice DTD.
On June 17, 2015 the court denied Kopp’s motion. The court explained Kopp’s
contract claim rested on alleged breaches of the SSSFA, but, contrary to Kopp’s
contention, the written contract attached to her proposed third amended complaint did not
incorporate, or even refer to, any portion of the SSSFA.
The court entered judgment on June 26, 2015. Kopp filed a timely notice of
appeal.
DISCUSSION
1. The Court Properly Granted Summary Adjudication as to the CLRA and
Conversion Claims
a. Standard of review
A motion for summary judgment is properly granted only when “all the papers
submitted show that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
We review a grant of summary judgment de novo and decide independently whether the
facts not subject to triable dispute warrant judgment for the moving party as a matter of
law. (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286;

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Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) The evidence must be viewed
in the light most favorable to the nonmoving party. (Ennabe v. Manosa (2014)
58 Cal.4th 697, 703; Schachter, at p. 618.) We review a summary adjudication ruling
under the same standards. (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622,
636; Noe v. Superior Court (2015) 237 Cal.App.4th 316, 327.)
A defendant may move for summary judgment on the ground there is an
affirmative defense to the action. (Code Civ. Proc., § 437c, subds. (o)(2), (p)(2); see also
Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 (Aryeh) [statute of
limitations is an affirmative defense].) Once the defendant meets the burden of
establishing all the elements of the affirmative defense, the burden shifts to the plaintiff
to show there is one or more triable issues of material fact regarding the defense. (Jessen
v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484-1485 [when a defendant moves for
summary judgment, “the burden shifts to the plaintiff to show there is one or more triable
issues of material fact regarding the defense after the defendant meets the burden of
establishing all the elements of the affirmative defense”]; Mirzada v. Department of
Transportation (2003) 111 Cal.App.4th 802, 806-807 [once defendant establishes the
existence of an affirmative defense, burden on summary judgment shifts to the plaintiff to
produce evidence establishing a triable issue of material fact refuting the defense]; see
Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830.)
b. Governing law
The statue of limitations, a legislatively prescribed time period to bring a cause of
action, exists “to promote the diligent assertion of [the] claim[], ensure defendants the
opportunity to collect evidence while still fresh, and provide repose and protection from
dilatory suits once excess time has passed.” (Aryeh, supra, 55 Cal.4th at p. 1191; accord,
Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246.) For both conversion claims and
claims under the CRLA, the governing limitation period is three years from the time the
claim has accrued. (Civ. Code, § 1783 [CLRA], Code Civ. Proc., § 338, subd. (c)
[conversion]; see generally Code Civ. Proc., § 312 [an action must be “commenced
within the periods prescribed in this title, after the cause of action shall have accrued”].)

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 Traditionally, a claim accrues “‘“when [it] is complete with all of its elements”—
those elements being wrongdoing [or breach], harm, and causation.’” (Aryeh, supra,
55 Cal.4th at p. 1191; accord, Howard Jarvis Taxpayers Assn. v. City of La Habra (2001)
25 Cal.4th 809, 815 (Howard Jarvis).) “This is [known as] the ‘last element’ accrual
rule . . . .” (Aryeh, at p. 1191; see ibid. [“ordinarily, the statute of limitations runs from
‘the occurrence of the last element essential to the cause of action”]; Howard Jarvis, at
p. 815 [same]; Quarry v. Doe I (2012) 53 Cal.4th 945, 960.)
c. Kopp’s CLRA and conversion claims are time-barred
Kopp contends DTD failed to meet its burden or, at a minimum, triable issues of
fact exist as to whether her property was, in fact, sold on March 24, 2010 or at some later
date. However, the trial court found DTD had presented evidence establishing Kopp
knew DTD “was asserting a lien over plaintiff’s property in storage in February 2010.
The three-year statute of limitations . . . expired three years later in February 2013.” That
is, the court necessarily found Kopp suffered actual injury when DTD placed a lien on
her property and denied her any access to it. (See generally Jordache Enterprises, Inc. v.
Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751-752 [cause of action does not
begin to accrue until plaintiff suffers actual injury]; Callahan v. Gibson, Dunn &
Crutcher LLP (2011) 194 Cal.App.4th 557, 570-572 [same]; see also Prakashpalan v.
Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1135 [elements of conversion
are plaintiff’s ownership or right to possess property at time of conversion; defendant’s
conversion by a wrongful act or disposition of those rights of ownership or possession;
and damage]; Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1022 [elements
of CLRA claim include employment of deceptive, illegal or unfair business practices
resulting in damage to consumer]; Civ. Code, § 1770, subd. (a) [CLRA violation includes
“(14) [r]epresenting that a transaction confers or involves rights, remedies, or obligations
which it does not have or involve, or which are prohibited by law”].) Kopp does not
address this finding. (See Claudio v. Regents of University of California (2005)
134 Cal.App.4th 224, 230 [“[o]n review of a summary judgment, the appellant has the

8
burden of showing error, even if he or she did not bear the burden in the trial court”];
Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766-767 [same].)
In addition, DTD demonstrated, and the court found as an undisputed fact, Kopp’s
property was sold in March 2010. Kopp has not demonstrated that finding was
erroneous. Anderson’s uncertainty about whether Tomisser had been employed at DTD
in March 2010, particularly when he did not join the company until 2014, does not
undermine Tomisser’s declaration or raise a triable issue of material fact as to the date of
sale. Moreover, Tomisser’s declaration was not the only evidence of sale. In addition,
the notices of lien sent to Kopp and publication of the lien sale notice in the newspaper
identified March 24, 2010 as the sale date, creating at least a reasonable inference the
property was sold on that date; and Kopp failed to provide any material evidence to rebut
that inference. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844 [on
summary judgment trial court considers the evidence presented “and ‘all’ of the
‘inferences’ reasonably drawn therefrom”]; Evid. Code, § 600, subd. (b) [“[a]n inference
is a deduction of fact that may logically and reasonably be drawn from another fact or
3
group of facts found or otherwise established in the action”].) To the contrary, Kopp

3 Kopp argues on appeal, as she did in her opposition to the motion for summary
judgment/summary adjudication, the absence of records confirming the sale was
sufficient to raise a triable issue of material fact, particularly when such records were
required by DTD’s procedures. The absence of business records relating to an incident or
condition when such records are routinely kept in the ordinary course of business could
very well raise a material factual question as to whether the incident or condition had
occurred. (See generally Evid. Code, § 1272, subd. (b) [absence of business “record of
an asserted act, condition, or event is not made inadmissible by the hearsay rule when
offered to prove the nonoccurrence of the act or event . . . if: [¶] (a) [i]t was in the regular
course of that business to make records of all such acts, conditions, or events at or near
the time of the act, condition, or event and to preserve them; and [¶] (b) The sources of
the information and method and time of preparation of the records of that business were
such that the absence of a record of an act, condition, or event is a trustworthy indication
that the act or event did not occur”].)
However, DTD’s written procedures for conducting lien sales, on which Kopp
relies, are dated 2011, after the sale had occurred; and Anderson testified he did not know
the procedures that were in place prior to 2011. Absent some evidence as to the records

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conceded in her complaint the sale had occurred in March 2010. (See Mark Tanner
Construction, Inc. v. HUB Internat. Ins. Services, Inc. (2014) 224 Cal.App.4th 574, 487
[“‘“[a] defendant moving for summary judgment may rely on the allegations contained in
plaintiff’s complaint, which constitute judicial admissions. As such they are conclusive
concessions of the truth of a mater and have the effect of removing it from the issues.”
[Citations.]’ [Citation.] The admissions may not be contradicted in opposing summary
judgment”]; Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1433 [plaintiff bound by
allegations of complaint as to when disability occurred; summary judgment properly
granted on statute of limitations grounds].) Thus, Kopp failed to establish any triable
issue concerning the date of sale.
d. Neither the delayed discovery rule nor the doctrine of equitable estoppel
precluded summary adjudication
Kopp also contends, even if the property had been sold on March 24, 2010, the
court erred in failing to consider, and give her the benefit of, the delayed discovery rule.
Under that common law rule, a cause of action accrues when the plaintiff either actually
discovers the injury or could have discovered the injury through the exercise of
reasonable diligence. (Aryeh, supra, 55 Cal.4th at p. 1192; Fox v. Ethicon Endo-Surgery,
Inc. (2005) 35 Cal.4th 797, 807; see also Massachusetts Mutual Life Ins. Co. v. Superior
Court (2002) 97 Cal.App.4th 1282, 1295 [under CLRA, statute of limitations runs “from
the time a reasonable person would have discovered the basis for a claim”].)
Kopp asserts she neither knew nor should have known her property had been sold
on March 24, 2010 because DTD never provided an accounting of the proceeds from the
sale or any confirmation the sale had occurred as scheduled. However, as discussed,
Kopp admitted in her deposition she received notice in February 2010 the sale would take

DTD routinely kept in the ordinary course of business, the absence of after-sale records
in this case is insufficient, by itself, to defeat summary adjudication on the narrow ground
of statute of limitations. (See Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892
[“[a]n inference must be reasonable to raise a triable issue of material fact on summary
judgment”; speculation an incident occurred or did not occur “is not evidence” and is
insufficient to defeat summary judgment].)

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place on March 24, 2010 unless she paid her bill. Kopp had, at the very least, notice that
her property would be sold on that date and a corresponding duty to investigate and
timely pursue her claim rather than waiting for additional information. (See Jolly v. Eli
Lilly & Co. (1988) 44 Cal.3d 1103, 1110, 1111 [“Under the discovery rule, the statute of
limitations begins to run when the plaintiff suspects or should suspect that her injury was
caused by wrongdoing, that someone has done something wrong to her.” “Once the
plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must
decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear
that the plaintiff must go find the facts; she cannot wait for the facts to find her.”].)
Kopp’s reliance on the doctrine of equitable estoppel is also misplaced. (See Vu v.
Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1152-1153 [“‘“[w]here
the delay in commencing action is induced by the conduct of the defendant [the statute of
limitations] cannot be availed of by him as a defense”’”]; accord, Munoz v. State of
California (1995) 33 Cal.App.4th 1767, 1785.) Generally, four elements must be present
to apply the doctrine of equitable estoppel: “‘“(1) the party to be estopped must be
apprised of the facts; (2) he must intend that his conduct be acted upon, or must so act
that the party asserting the estoppel had a right to believe it was so intended; (3) the other
party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to
his injury.”’” (Honeywell v. Workers’ Comp. Appeals Bd. (2005) 35 Cal.4th 24, 37;
accord, Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261; Feduniak v.
California Coastal Com. (2007) 148 Cal.App.4th 1346, 1359.)
Kopp presented no evidence DTD did anything to induce Kopp’s forbearance in
filing suit. Although inaction may give rise to an estoppel when a duty to speak is
imposed by statute or regulation (People v. Ocean Shore Railroad, Inc. (1948) 32 Cal.2d
406, 421-422; Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999)
71 Cal.App.4th 1260, 1268), DTD satisfied that duty when it informed Kopp of the lien
and sale, notice Kopp admitted she received. DTD’s unresponsiveness to Kopp’s after-
sale telephone calls or failure to give further notice after the sale is simply not enough, as
a matter of law, to justify application of equitable estoppel in this case. (Cf. Battuello v.

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Battuello (1998) 64 Cal.App.4th 842, 847 [equitable estoppel applied where defendant
made express promises during settlement negotiations that induced plaintiff’s forbearance
from filing suit within the applicable limitations period]; see generally Albers v. County
of Los Angeles (1965) 62 Cal.2d 250, 266 [although estoppel is generally a question of
fact, where the facts are undisputed and only one reasonable conclusion can be drawn, the
question whether estoppel applies is one of law].)
Finally, Kopp contends the court erred in granting summary adjudication without
citing its reasons as required under the governing statute. (See Code Civ. Proc., § 437c,
subd. (g) [upon grant of summary judgment or summary adjudication court shall specify
its reasons for order].) Contrary to Kopp’s contention, the trial court’s five-page order
explained in detail the reasons it found her CLRA and conversion claims were time-
barred. Although the court did not use the words “estoppel” or “delayed discovery”
directly in its written order, it plainly considered and rejected both, finding Kopp knew or
should have known of her claims as early as February 2010, and at the latest, by
March 24, 2010 when her property was sold; thus her claims, filed in July 2013, were
time-barred. There was no error.
2. The Trial Court Did Not Err in Denying Kopp Leave To Amend Her Complaint
a. Governing law and standard of review
The trial court “in furtherance of justice” may allow amendment of a pleading.
(Code Civ. Proc., § 473, subd. (a)(1).) There is a strong policy in favor of liberally
granting leave to amend. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296.)
Typically, leave should be granted unless it would prejudice the defendants. (Ibid.)
However, if the proposed amendment fails to state a cause of action, it is proper to deny
leave to amend whether or not there is any prejudice. (Royalty Carpet Mills, Inc. v. City
of Irvine (2005) 125 Cal.App.4th 1110, 1124; Foxborough v. Van Atta (1994)
26 Cal.App.4th 217, 230.)
We review the trial court’s decision to grant or deny leave to amend for abuse of
discretion and disturb that decision only if the trial court exercised its discretion in an

12
arbitrary or capricious manner. (Mesler v. Bragg Management Co., supra, 39 Cal.3d at
p. 296; Foxborough v. Van Atta, supra, 26 Cal.App.4th at p. 230.)
b. Kopp’s proposed third amended complaint failed to state a cause of
action for breach of written contract
Kopp contends the court erred in denying her leave to amend her complaint to
state a claim for breach of written contract, which, she asserts, would be timely under the
applicable four-year statute of limitations. (See Code Civ. Proc., § 337, subd. 1.) Kopp
does not identify a particular provision of the written contract she alleges was breached.
4
Instead, she contends DTD violated various provisions of the SSSFA and argues the
SSSFA’s provisions are implied “by operation of law” in every self-service storage
contract.
i. The SSSFA
The SSSFA, based on a model developed by the National Self-Service Storage
Facility Association, was enacted in 1981 “to provide self-storage facility owners with
‘an effective remedy against defaulting customers.’” (Vitug v. Alameda Point Storage,
Inc. (2010) 187 Cal.App.4th 407, 415; see Assem. Com. on Judiciary, Assem Bill
No. 750 (1981-1982 Reg. Sess.), as amended May 11, 1981, p. 4.) By its terms the

4 In particular, Kopp alleged: (1) DTD (or its predecessor-in-interest) failed to
present the contract to her 72-hours before pick-up of her goods as required under the
SSSFA (see Bus. & Prof. Code, § 21701.1, subd. (a)(5) [“[t]he owner, operator or carrier
shall disclose to the customer in advance the following information regarding the
container transfer service offered, in a written document separate from others furnished at
the time of disclosure”]; subd. (a)(5)(G) [“[t]he disclosure of terms and conditions
required by this subdivision, and the rental agreement, shall be received by the customer
a minimum of 72 hours prior to delivery of the empty individual storage container”]);
(2) the contract failed to include a space for her to put an additional addressee to receive
notice of lien (Bus. & Prof. Code, § 21712, subd. (b) [“[t]he provisions of this chapter
shall not apply, and the lien authorized by this chapter shall not attach, unless the rental
agreement requests, and provides space for, the occupant to give the name and address of
another person to whom the preliminary lien notice and subsequent notices required to be
given under this chapter may be sent”]); and (3) DTD charged unreasonable late fees in
excess of the limits authorized under the SSSFA (see Bus. & Prof. Code, § 21713.5,
subd. (b) [authorizing imposition of “reasonable late fee” for late payment and
authorizing maximum amount of fee, depending on the monthly rent]).

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SSSFA requires each contract for a rental or lease of individual storage space to be in
writing (Bus. & Prof. Code, § 21712, subd. (a)) and to inform the renter that the property
will be subject to a lien and may even be sold to satisfy the lien if rent or other charges
remain unpaid for 14 consecutive days. (Bus. & Prof. Code, § 21712, subd. (a).) It also
identifies the conditions that must occur and the procedures an owner of a self-storage
facility must follow before the self-storage facility may recover the storage container,
impose a lien on the goods stored and sell or otherwise dispose of the goods. (See Bus. &
Prof. Code, § 21700 et seq.)
Although nothing in the SSSFA expressly authorizes, or evidences a legislative
intent to permit, a private right of action for violation of its terms, that does not mean a
party who is aggrieved by a violation of the SSSFA is without a remedy. To the contrary,
in addition to formally objecting to the sale and compelling a noticed hearing to
determine the propriety of the lien and sale (see Bus. & Prof. Code, §§ 21704, 21705) and
seeking an injunction or other equitable relief, a renter aggrieved by the self-storage
facility’s violation of the SSSFA has other statutory and common law remedies,
including without limitation and when appropriate, a cause of action under the CLRA and
common law claims for trespass or conversion. (See Vitug v. Alameda Point Storage,
Inc., supra, 187 Cal.App.4th at p. 415.)
To this list of potential remedies for a SSSFA violation, Kopp seeks to add a cause
of action for breach of written contract, whether or not the SSSFA is expressly
incorporated into the contract. We have serious doubt as to this theory of liability, but we
need not resolve that question now because Kopp failed to plead, and cannot amend her
complaint to plead, essential elements of a cause of action for breach of written contract.

ii. Kopp failed to allege she performed under the written contract or
that her performance was excused
To plead a cause of action for breach of written contract, a plaintiff must allege, in
addition to the existence of a written contract, breach, causation and damage, that he or
she performed under the contract or that his or her own performance was excused. (Hale
v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1387; see ibid. [“‘it is elementary that

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one party to a contract cannot compel another to perform while he himself is in
default’”]; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489
[same].) Kopp did not allege she had performed her obligations under the contract or that
her performance was excused, nor, in light of her own deposition testimony, can she
5
amend her complaint to do so. Indeed, Kopp admitted she paid nothing for the storage
of her goods after November 2009.
Given the nature of Kopp’s default, none of the purported breaches she has
identified excused her own performance under the contract. For example, Kopp asserts
DTD charged a late fee in excess of that permitted by the SSSFA. However, the
purportedly excessive late fee did not excuse Kopp’s own failure to pay the sums
otherwise authorized and required for the rental storage. (See Hale v. Sharp Healthcare,
supra, 183 Cal.App.4th at p. 1388 [breach of contract claim properly dismissed; even if
Hale were excused from paying the portion of her bill that represented “grossly excessive
rates,” she did not allege she paid the reasonable value of services or that Sharp did
anything to prevent her from paying].)
Equally unpersuasive is Kopp’s allegation that DTD’s failure to include in the
contract a space for a secondary addressee constituted a breach of contract. The statute
appears to provide only that a violation of this provision prevents the storage company
from relying on its benefits to obtain the lien and sell the property (see Bus. & Prof.
Code, § 21712, subd. (b) [failure to include provision in contract removes contract from
benefits of SSSFA]). In any event, given Kopp’s admission she received the notices for
nonpayment and notices of lien and sale, she suffered no injury as a result of this
violation. (See Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830 [damage is
essential element of breach of contract claim]; Hamilton v. Greenwich Investors XXVI,

5 Although the trial court focused on the fact the SSSFA provisions at issue were
not incorporated into the contract, not whether Kopp had adequately alleged she
performed or her performance was excused, we may affirm a trial court judgment on any
correct basis presented by the record. (ASP Properties Group, L.P. v. Fard, Inc. (2005)
133 Cal.App.4th 1257, 1268; Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th
243, 252, fn. 1.)

15
LLC (2011) 195 Cal.App.4th 1602, 1614.) Moreover, as discussed, Kopp has not, and
cannot, allege that her own performance was excused.
Similarly, DTD’s predecessor’s failure to provide a copy of the contract 72 hours
in advance perhaps precluded DTD from claiming the benefits of the SSSFA or, at most,
made the contract voidable at Kopp’s election. Under no circumstances, however, could
this violation of the statute give rise to an affirmative claim for breach of contract.
In sum, the trial court did not err in denying Kopp’s request for leave to amend her
complaint to state a cause of action for breach of written contract.
DISPOSITION
The judgment is affirmed. Door to Door Storage is to recover costs on appeal.

PERLUSS, P. J.

We concur:

ZELON, J.

SEGAL, J.

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