Filed 10/21/13 Shneyder v. Sokolovsky CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


VALERY SHNEYDER,                                                     B239085

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. LC088327)
         v.

POLINA SOKOLOVSKY et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Frank J. Johnson, Judge. Affirmed.


         Lavely & Singer Professional Corporation, Paul N. Sorrell for Plaintiff and
Appellant.


         No appearance for Defendants and Respondents.


                  ___________________________________________________
       In settlement of a prior lawsuit, respondents agreed to make three separate
payments to appellant. Appellant never received the third payment and sued for breach
of contract. The trial court below found that the statute of limitations expired before
appellant brought this action and entered judgment in favor of respondents. We affirm.
                                      BACKGROUND
       In July 2004, appellant, Valery Shneyder, and other plaintiffs brought suit against
respondents, Polina and Gene Sokolovsky, and other defendants after disputes arose
relating to the parties‟ acquisition of multiple parcels of real property (the prior action).
The parties eventually entered into settlement negotiations and various drafts of a written
settlement agreement were created. A notice of settlement was filed and the case was
dismissed.
       The terms of the settlement agreement discussed among the parties called for the
conveyance of Shneyder‟s interest in various properties to appellants, and respondents‟
payment to Shnedyer of $579,800 in three separate principal payments, in the amounts of
$383,500, $135,000, and $61,300. Respondents paid the first amount of $383,500, plus
interest. They also paid the second amount of $135,000, again with interest. According
to Shneyder‟s trial testimony in the instant action, in 2009 respondents paid a total of
$11,000 toward the remaining $61,300 obligation.
       Shneyder initiated this action on January 25, 2010, after respondents failed to
make any further payments. His complaint alleged, inter alia, that the parties entered into
a written settlement agreement to resolve the prior action and that defendants breached
the agreement by failing to make all required payments.
       Trial to the court began on September 19, 2011. At trial, it emerged that no
complete, finalized version of a settlement agreement resolving the prior action could be
found. Instead, at least two different versions of a settlement agreement were introduced.
One of the proffered versions allowed for a deficiency judgment in the event of
foreclosure upon notes and deeds of trust securing the payment obligations. The other
version did not. Furthermore, one version had signatures of some parties; the other



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version contained other parties‟ signatures. Neither version had signatures of all the
parties to the prior action.
          Nevertheless, Shneyder testified that the prior action was settled and that all
parties executed a settlement agreement. In contrast, respondent Polina Sokolovsky
testified that the prior action was not settled because the parties could not agree on terms,
and the trial court dismissed the case because it got tired of dealing with it. Her husband,
respondent Gene Sokolovsky, likewise testified that there was no settlement.
          After presentation of the evidence and argument, the trial court rendered its
decision. The court stated that respondents‟ “attempt to come into this court and try and
have this court believe that they just randomly decide to pay several hundred thousand
dollars to the plaintiff in this case for no apparent reason and that, independently of that
random decision on their part, the court just got tired of the case and decided to dismiss it
is so obviously false as to be insulting to this court to even suggest it. It‟s obvious that a
settlement was achieved between the parties to dispose of that lawsuit, so the defendants‟
suggestions to the contrary are just laughable.” The court noted, however, that there were
differing versions of the settlement agreement, none of which was fully signed. Thus, the
court could not find that any written agreement was effective. But, the court found that
the evidence clearly established that the parties made an oral agreement to settle the prior
action.
          This finding did not compel judgment in favor of Shneyder, however. The trial
court found no evidence that breach of the oral agreement occurred within two years of
the initiation of this action on January 25, 2010, and so it found Shneyder‟s breach of
contract claim barred by the statute of limitations. (Code Civ. Proc., § 339.)
          Judgment was entered in favor of respondents. All parties were ordered to bear
their own costs. In so ordering, the trial court stated: “Given the obvious perjury that
occurred on behalf of the defense . . . I‟m not inclined to find either party the prevailing
party in this litigation.”
          Shneyder timely filed a notice of appeal.



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                                       DISCUSSION
       On an appeal following a bench trial, we review the trial court‟s findings of fact
for substantial evidence. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935.) “Where
[the] statement of decision sets forth the factual and legal basis for the decision, any
conflict in the evidence or reasonable inferences to be drawn from the facts will be
resolved in support of the determination of the trial court decision.” (In re Marriage of
Hoffmeister (1987) 191 Cal.App.3d 351, 358.) Questions of law are reviewed de novo.
(Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Bostean v. Los Angeles Unified School
Dist. (1998) 63 Cal.App.4th 95, 107.)
I. Statute of Limitations
       On appeal, Shneyder argues that the settlement agreement was enforceable as an
oral contract because it was breached less than two years prior to the filing of this action.
Shneyder contends that respondents‟ payment of $11,000 in 2009 had the effect of
recommencing the statute of limitations, so that it began to run from the time that the
payment was made.1
       We note that Shneyder made no such argument in the trial court. Indeed, in a
supplemental trial brief filed on September 28, 2011, Shneyder argued that defendants,
through the use of false pretenses, led Shneyder to refrain from filing suit earlier, which
took “this matter beyond the statute of limitations.” Likewise, in argument made to court
near the end of trial, Shneyder‟s attorney stated: “[M]y client was fraudulently induced
to wait until this became too late. Can‟t do anything now at this point; statute of
limitations is over, and he‟ll be left holding the bag.” Through this affirmative
representation that the statute of limitations expired, Shnedyer waived the right to argue
on appeal that the action was timely. (See Mary M. v. City of Los Angeles (1991) 54
Cal.3d 202, 212 [“Under the doctrine of invited error, when a party by its own conduct


1      No respondents‟ brief was filed. As with any appeal, however, appellant still
bears the burden of affirmatively demonstrating error. (Kriegler v. Eichler Homes, Inc.
(1969) 269 Cal.App.2d 224, 226-227.)


                                              4
induces the commission of error, it may not claim on appeal that the judgment should be
reversed because of that error”]; Conservatorship of Joseph W. (2011) 199 Cal.App.4th
953, 968-969 [appellant waived claim of error through affirmative conduct and/or failure
to bring issue to trial court‟s attention]; JRS Products, Inc. v. Matsushita Electric Corp. of
America (2004) 115 Cal.App.4th 168, 178.)
       In any event, the conclusion that the statute of limitations had expired was correct.
Shneyder‟s complaint alleged that respondents breached the contract on September 26,
2007, by failing to pay the sum of $61,300, plus interest. The complaint was filed on
January 25, 2010, more than two years after the asserted breach, and thus beyond the
statute of limitations for an oral contract. (Code Civ. Proc., § 339.)
       Shneyder‟s argument on appeal that respondents made payments of $11,000 in
2009 and thereby restarted the statutory period is incorrect. Shneyder relies on Code of
Civil Procedure section 360, which provides: “No acknowledgment or promise is
sufficient evidence of a new or continuing contract, by which to take the case out of the
operation of this title [time of commencing actions], unless the same is contained in some
writing, signed by the party to be charged thereby, provided that any payment on account
of principle or interest due on a promissory note made by the party to be charged shall be
deemed a sufficient acknowledgment or promise of a continuing contract to stop, from
time to time as any such payment is made, the running of the time within which an action
may be commenced upon the principal sum or upon any installment of principal or
interest due on such note, and to start the running of a new period of time, but no such
payment of itself shall revive a cause of action once barred.” The problem with
Shneyder‟s argument is that respondents‟ debt was not based on a promissory note, but
rather an oral contract. Although the record does contain a copy of a promissory note for
$61,300, the obligor on that note is Tatyana Dudova, not either respondent. Thus, Code
of Civil Procedure section 360 had no application to the obligation owed by respondents.
       It is true that in James de Nicholas Associates, Inc. v. Heritage Constr. Corp.
(1970) 5 Cal.App.3d 421, 426, a breach of oral contract case, the Court of Appeal stated
that “a part payment may serve to extend the limitation period and make it run from the

                                              5
last payment.” But the question in de Nicholas was whether a partial payment mandated
application of a four-year statute of limitations instead of two years, which the court
answered in the negative. (Ibid.) The statement about a partial payment extending the
limitations period was merely dictum.
       Furthermore, de Nicholas relied on Eilke v. Rice (1955) 45 Cal.2d 66 as support
for the proposition that the limitations period was extended. Eilke v. Rice, however,
involved the application of Code of Civil Procedure section 360 to payment on a
promissory note, not an obligation arising from an oral contract. (Eilke v. Rice, at pp. 68-
69.) Payment of interest on an oral agreement does not extend the statutory period in
which a breach of oral contract claim may be brought. The trial court, therefore,
correctly determined that the statute of limitations had expired.
II. Estoppel
       Shneyder makes an alternative argument that respondents were barred from
asserting the statute of limitations defense by estoppel. Shneyder made the same
argument in the trial court.
       Whether estoppel applies is a question of fact, unless the facts are undisputed.
(Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238, 1251.) “„“Equitable
estoppel . . . comes into play only after the limitations period has run and addresses . . .
the circumstances in which a party will be estopped from asserting the statute of
limitations as a defense to an admittedly untimely action because his conduct has induced
another into forbearing suit within the applicable limitations period. [Equitable estoppel]
is wholly independent of the limitations period itself and takes its life . . . from the
equitable principle that no man [may] profit from his own wrongdoing in a court of
justice.”‟” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383.) To show an estoppel
generally, “„(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.‟” (Mills v. Forestex Co. (2003)
108 Cal.App.4th 625, 655.)

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       We find that substantial evidence supports the trial court‟s conclusion that
respondents were not estopped from asserting a statute of limitations defense.
Significantly, Shneyder does not point to any fact known by respondents of which he was
unaware, or establish that he reasonably relied on any representation by respondents. In
his brief, Shneyder argues that he provided multiple extensions of time for respondents to
pay the remaining amounts due. But in the trial testimony cited by Shneyder, he stated
that respondent Polina Sokolovsky “was not returning my calls; so I had to take action,”
and that she ignored the demand letter that he hired an attorney to write, which contained
a vague reference to previous “verbal extensions.” This does not evidence the sort of
conduct necessary to support a finding of estoppel. “Mere allegations that plaintiff
believed that „the check was in the mail‟ do not establish either ignorance of the true state
of facts, or reasonable reliance by plaintiff to his detriment.” (Lundeen Coatings Corp. v.
Department of Water & Power (1991) 232 Cal.App.3d 816, 829.) Here, the record does
not even contain evidence of assertions that “the check was in the mail”; rather, it only
vaguely alludes to purported extensions. The trial court, therefore, was clearly justified
in declining to find estoppel.2




2      Shneyder‟s cursory argument that Polina Sokolovsky entered into an enforceable
written agreement is meritless. The draft settlement agreement explicitly stated that it
was binding only if executed by all parties. There was no settlement agreement
containing all parties‟ signatures.


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                                   DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                        BOREN, P.J.
We concur:


      CHAVEZ, J.


      FERNS, J.*




_______________________________________________________________

*     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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