Filed 12/7/15 Thomas v. Dang CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


ADLY H. THOMAS,

     Plaintiff and Respondent,                                         G050598

         v.                                                            (Super. Ct. No. 30-2013-00662624)

KHANH PHI DANG,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Thierry
Patrick Colaw, Judge. Affirmed.
                   Jerome D. Stark for Defendant and Appellant.
                   Wilson Kyncl & Khashan and Milan Kyncl for Plaintiff and Respondent.
                                          *                  *                  *
                  In 2013, Adly Thomas sued his longtime friend Khanh Phi Dang because
she didn’t pay off a note she signed for $105,114.79 at 4.2 percent annual interest back in
May 1993. The note has no terms specifying repayment other than a promise to pay it
back on demand.1 Thomas did not ask for repayment until December 2012. The trial
judge found that the note reflected a loan that Thomas made to Dang to help her pay for a
house in Fountain Valley, and gave judgment for the balance of the note.2 Dang
represented herself at trial. While she did not present an entirely comprehensible or
linear narrative, her main point at trial seems to have been that the note wasn’t really a
loan after all, but was a scheme by Thomas to hide community assets in his divorce and
in any event she had paid him back.3 On appeal, Dang, now represented by counsel,
argues that the statute of limitations ran on all her indebtedness to Thomas no later than
2004.
                  Dang, however, did not raise the statute of limitations at trial. We have
examined the entire transcript of the trial, and have found no mention by Dang,
representing herself, of the statute of limitations. While the issue was included in what
was an obvious boilerplate answer, and also in a document called “objections to proposed
judgment” filed after the trial but before the judgment, it was not mentioned at all at trial.
                  If the statute of limitations is not raised at trial, the issue is waived for
purposes of appeal. (Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223,
1232 [“Western urges these three causes are time barred for the first time on appeal.


          1         We reproduce the entirety of the note here: “The undersigned maker promises to pay ADLY
HANNA THOMAS or order the sum of $105,114.79 plus interest @ 4.2 per annum as per Fixed Rate Certificate
Account Number 114-618085 issued by Coast Federal Bank on 3/3/93 which matures on 11/28/93. [Signed by
Khanh Phi Dang] [Dated: “5/21/93”].
          2         The judgment is for $125,325 plus costs. The calculation, as made by the trial judge in open
court, first took an earlier loan Thomas had made to Dang for about $43,000, then added the note for $105,114, and
from that deducted $80,000 for the value of property that Dang transferred to Thomas in 1999. Then he added
interest to that sum at 4.2 percent rate. There is no issue in this case regarding the accuracy of the trial court’s math.
          3         There was testimony by Thomas contradicting the theory the loan was to hide community
property. He testified that the $105,114 was part of his share of community property and was properly considered
by the family law court in his divorce.


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Since the statute of limitations defense was not raised below, it is waived.”]; accord,
Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 940, fn.
4 [“In civil actions, the statute of limitations is a personal privilege and must be
affirmatively asserted or it is deemed waived. . . . Since the District failed to assert this
statute of limitations defense below, the defense is deemed waived.”]; accord, 366–386
Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1199 [“real parties failed
to adequately raise this issue in the superior court, and it may not be raised for the first
time on appeal”].)
                 We need only add, by way of dicta, two comments. First, if this court were
to award medals to trial court judges for patience in bending over backwards to insure
that self-represented litigants really do “get their day in court,” it would award one to
Judge Colaw here. An examination of the trial transcript shows he patiently threaded his
way through Dang’s sometimes hard-to-follow testimony and argument, giving due
consideration to both Thomas’ counsel’s (numerous) objections and Dang’s inchoate
attempts to articulate her case.4
                 Second, there are times when lawyers really do earn their keep. While we
do not decide the issue of the statute of limitations raised by Dang’s appellate counsel on
its merits, we do observe that the issue is certainly not frivolous. (See Buffington v.
Ohmert (1967) 253 Cal.App.2d 254, 256 [“For purposes of the statute of limitations,
loans payable on demand are deemed payable at their inception, and the statute begins to




        4           We’ll give two examples. In each case Dang was asking questions of Thomas:
                    (1) “Q. No, Mr. Thomas, because I want very clear how that happened because counting from the
check that you say you lent to me $43,000. In the first place this is not from insurance company. This is very
wrong. You lie again to the court, and you lie to yourself because this is not insurance. This is household bank and
remittitur itself. Does that mean that you went to the bank and close account you have with them so they issue a
check for $43,000? This is not insurance company.”
                    (2) “By Ms. Dang: Q Assuming that this is a check you say you loan to me, and then I open it up
here, put on account with my name, with your address, is that stupid? Am I stupid to do that? If I borrow from
you?”


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run from such time.”].)5 Dang at one point told the court that she came to this country
with $500 in her pocket, and, because of her hard work and personal honesty, she now
had over a million dollars. She thus certainly could have hired a lawyer at the trial court
level.
                 The judgment is affirmed. Respondent shall recover his costs on appeal.




                                                           BEDSWORTH, ACTING P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.




        5       The respondent’s brief asserts that Thomas and Dang “renewed the loans yearly” up to Thomas’
2012 demand for payment, but provides no record references for the assertion.


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