Thomas v. Dang CA4/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.