Filed 5/28/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

DAVID HESTER,

 Plaintiff and Appellant,

v.

PUBLIC STORAGE,

 Defendant and Respondent.

 G057335

 (Super. Ct. No. 30-2017-00936828)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Melissa 

R. McCormick, Judge. Affirmed.

Law Offices of Dale Washington and Dale E. Washington for Plaintiff and 

Appellant.

Keker, Van Nest & Peters, Erin E. Meyer and Christopher S. Sun for 

Defendant and Respondent.

* * *
2

For several years, plaintiff David Hester was a reality television star on

“Storage Wars.” He now finds himself at war with defendant Public Storage over the 

contents of a storage unit.

Plaintiff made the winning bid and purchased the contents of a self-storage 

unit at an auction held by defendant. Defendant learned it had mistakenly sold the goods

about half an hour after the sale was complete. The unit’s occupant had paid his past due 

rent weeks before the auction, but defendant’s computer system incorrectly marked the 

unit for sale. Due to this error, defendant immediately rescinded the deal based on two 

documents plaintiff had signed that contained clauses allowing defendant to void the sale 

for any reason (the null and void clauses). Plaintiff claimed defendant’s rescission was 

invalid and sued for breach of contract and conversion, among other claims. Defendant 

moved for summary adjudication on the contract and conversion claims on grounds it had 

properly voided the sale under the null and void clauses. The trial court granted 

defendant’s motion.

Following entry of a stipulated judgment, plaintiff appeals, arguing 

summary adjudication was improper. Primarily, he contends the null and void clauses 

are invalid because (1) they are precluded by various statutes governing self-storage 

auction sales, and (2) he agreed to them under duress. We disagree. We also reject 

plaintiff’s argument that defendant was required to file an unlawful detainer action to 

retake possession of the purchased goods after it rescinded the sale. For these reasons, 

we determine the trial court properly granted defendant’s summary adjudication motion 

and affirm the judgment.

I

FACTS AND PROCEDURAL HISTORY

Self-service storage facilities (owners or sellers) rent storage space to 

individuals (occupants) for the purpose of storing personal property. (Bus. & Prof. Code,
3

§ 21701 subds. (a) & (c).) If an occupant fails to pay rent, an owner may sell the personal 

property contained within the occupant’s storage unit through a lien sale. (Bus. & Prof. 

Code, §§ 21702-21707.)

Defendant owns and operates self-storage facilities throughout the country 

and conducts lien sales in California pursuant to the Self-Service Storage Facility Act

(Bus. & Prof. Code, § 21700 et seq.; the Act). Plaintiff has made a living for the past 30 

years buying the contents of storage units at lien sales and reselling the purchased items.

He was featured on several seasons of the television show “Storage Wars,” which 

documented the lives of several individuals that make a living in this manner. In his 

career, plaintiff has attended about 10,000 lien sales, about 20 percent to 25 percent of 

which were conducted by defendant.

Defendant held a lien sale at its facility in Fountain Valley in July 2017. 

As a condition to participate in the sale, plaintiff signed a Delinquent Tenant Sale Sign-in 

Sheet and Agreement (delinquent sale agreement) containing various rules and 

regulations, including, among others: (1) “[a]ll bidders must read these Rules and 

Regulations and fill out the Bidder’s Sign-In Sheet below”; (2) “[a]t the time of purchase, 

Purchaser must complete a Certificate of Public Sale form . . .”; (3) defendant “reserves 

the right to null and void the auction and sale of any unit if, among other reasons, the 

District Manager verifies that the tenant has paid the outstanding balance in full while the 

auction was taking place”; and (4) “[a]ny violation of the above rules may result in 

bidders being barred from future sale at any Public Storage facility.”

At the sale, defendant accepted plaintiff’s offer to purchase the contents of 

a storage unit for $11,800. Plaintiff then placed two locks on the unit’s door and paid for 

the unit with a credit card and cash. He also signed a Certification of Public Sale for the 

unit, which certified he had made the winning bid for the contents of the storage unit

during competitive bidding. The certification also stated plaintiff “[understood] that 
4

[defendant] reserve[d] the right to null and void the auction and sale of the unit for any 

reason.”

About half an hour after plaintiff signed the certification, a senior district 

manager for defendant learned the unit had been mistakenly listed for sale due to a 

technical glitch. The unit’s occupant had paid his past due balance weeks before the sale,

but the system incorrectly listed the unit as delinquent and marked it to be sold. 

Defendant would not have sold the unit had it known of this mistake.

After discovering the error, the district manager immediately notified 

plaintiff that defendant was voiding his purchase of the unit. Defendant reversed the 

portion of the purchase price paid by credit card and attempted to refund the cash

balance. Plaintiff refused to accept the sale’s rescission and declined the refund. 

Defendant then cut plaintiff’s locks off the unit and replaced them with its own locks. 

Defendant later sent plaintiff a letter explaining that it had voided his purchase of the unit

and enclosed a refund of the cash balance and reimbursement for the cut locks.

Plaintiff filed this lawsuit in August 2017 based on the rescission of the 

sale, among other things. He then filed a first amended complaint in November 2017

asserting the following claims: (1) auctioneer misconduct; (2) conversion; (3) breach of 

contract; and (4) breach of the covenant of good faith and fair dealing. In June 2018, 

defendant moved for summary adjudication on the second, third, and fourth causes of 

action, all of which arose from defendant’s allegedly wrongful rescission of the sale. The 

trial court granted the motion, finding defendant had properly voided the sale under the 

null and void clauses.

The parties subsequently settled the remaining claim and filed a stipulation 

for entry of judgment. On December 10, 2018, the trial court entered judgment in favor 

of defendant on the second, third, and fourth causes of action and dismissed with 

prejudice plaintiff’s first cause of action for auctioneer misconduct. This appeal 

followed.
5

II

DISCUSSION

A. Standard of Review

“Summary judgment . . . provide[s] courts with a mechanism to cut through 

the parties’ pleadings in order to determine whether, despite their allegations, trial is in 

fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 843.) “Summary judgment should be granted if no triable issue exists as to 

any material fact and the moving party is entitled to judgment as a matter of law. 

[Citation.] The burden of persuasion is on the party moving for summary judgment. 

When the defendant is the moving party, the defendant must show the action has no 

merit. That showing is made if the defendant either negates an element of the plaintiff’s 

cause of action or establishes that a complete defense exists. The burden then shifts to 

the plaintiff to show that a triable issue of material fact exists with respect to the cause of 

action or defense.” (Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326, 330.)

“We review the trial court’s decision de novo, considering all the evidence 

set forth in the moving and opposition papers except that to which objections were made 

and sustained.” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.) “In ruling 

on the motion, the court must consider all of the evidence and all of the inferences 

reasonably drawn therefrom, and must view such evidence and such inferences in the 

light most favorable to the opposing party.” (Caloroso v. Hathaway (2004) 122 

Cal.App.4th 922, 926.)

B. The Breach of Contract Claims

On appeal, plaintiff argues the trial court erred for the following reasons. 

First, the null and void clauses are precluded by California Uniform Commercial Code

section 2328 (section 2328) and Business and Professions Code section 21711. Second, 

there is a triable issue of fact as to whether plaintiff agreed to the null and void clauses 
6

under economic duress. We agree with the trial court and find defendant properly voided 

the sale under the null and void clauses.

1

1. Preclusion

a. section 2328

Plaintiff’s primary argument is based on section 2328, which provides rules 

governing auction sales. Before considering this argument, we first address defendant’s 

contention in a footnote that this statute does not apply because plaintiff has not 

established the sale was an auction. There is enough evidence in the record to dispel this 

argument. The delinquent sale agreement and certification refer to the sale as an 

“auction,” reference bids, and state the contents of the storage unit go to the winning 

bidder. Given that we interpret the evidence in favor of plaintiff (Caloroso v. Hathaway, 

supra, 122 Cal.App.4th at p. 926), we find the lien sale was an auction for purposes of 

this appeal and address the merits of plaintiff’s argument.

Section 2328 is comprised of four subdivisions. Under this statute, an 

auction is complete once announced by the auctioneer, referred to as the “fall of the 

hammer.” (§ 2328, subd. (2).) Plaintiff contends that after the hammer falls, a binding 

sales contract is created between the bidder and seller. He asserts the exclusive grounds 

for undoing this contract are in subdivisions (2) through (4) of section 2328. The null 

and void clauses are precluded, he argues, because they improperly add additional 

grounds for undoing a completed sale. Plaintiff misreads the statute.

“The fundamental objective of statutory interpretation is to determine the 

Legislature’s intent.” (County of San Bernardino v. Cohen (2015) 242 Cal.App.4th 803, 

816.) The Legislature’s focus in section 2328 is limited to the auction process itself, i.e.,

the process of selling and bidding on goods. This is clear from the text of the statute. 

1

 Because we reach this conclusion, we do not address defendant’s argument that the sale 

was properly rescinded under the mutual mistake doctrine.
7

Subdivision (1), which is irrelevant to this appeal, governs the sale of goods put up in 

lots. (§ 2328, subd. (1).) Subdivision (2) gives an auctioneer discretion to reopen 

bidding when a bid is made while “the hammer is falling.” (§ 2328, subd. (2).) 

Subdivision (3) establishes rules for selling a good with or without reserve, withdrawing 

goods from sale, and retracting bids. (§ 2328, subd. (3).) Finally, subdivision (4) 

prevents sellers from secretly bidding on their own goods to inflate prices. If such 

bidding occurs, a buyer may void the sale or pay the price of the last good faith bid. 

(§ 2328, subd. (4); Nevada National Leasing Co. v. Hereford (1984) 36 Cal.3d 146, 148-

149.)

Contrary to plaintiff’s assertion, nothing in section 2328 shows any intent 

by the Legislature to establish the grounds for voiding a completed sale, let alone the 

exclusive grounds. The only subdivision that even mentions voiding a completed sale is 

subdivision (4), which allows a buyer to void a sale due to improper bidding by the seller. 

But the focus of subdivision (4) is on integrity in the auction process, not the grounds for 

voiding a sale. Allowing a buyer to void the sale is only a remedy to address seller

impropriety during the auction. Nothing in the text of the statute reasonably supports 

plaintiff’s interpretation. If the Legislature had intended for this statute to establish the 

entire means for a buyer and seller to void a completed auction sale, it would have said 

so. “‘The Legislature “does not, one might say, hide elephants in mouseholes.”’” (Jones 

v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1171.)

Further, even if this intent could somehow be read into section 2328,

nothing in the statute’s text bars the parties from agreeing to additional grounds for
8

voiding a completed sale. (Cal. U. Com. Code, § 1302, subd. (a) [“Except as otherwise 

provided . . . the effect of provisions of this code may be varied by agreement”].)2

b. Business and Professions Code section 21711

The Act contains various rules governing self-storage facilities, including 

lien sale procedure. With regard to lien sales, Business and Professions Code 

section 21711 states “[a] purchaser in good faith of goods sold to enforce a lien . . . takes 

the goods free of any rights of [the occupants] against whom the lien was claimed, 

despite noncompliance by the owner of the storage facility with the requirements of this 

chapter.” Plaintiff contends this statute places the risk of an erroneous sale on defendant, 

the owner. The null and void clauses, he asserts, violate the statute by allowing 

defendant to improperly shift the risk onto himself, the buyer.

Plaintiff reads too much into Business and Professions Code section 21711. 

It regulates the relationship between a buyer and the occupant whose property was sold, 

not the buyer and the owner of the storage facility. The language on which plaintiff relies

only clarifies that an occupant has no claim against a good faith buyer even if the owner 

did not comply with the Act. It does not apportion any risk of an erroneous sale between 

a buyer and an owner. Further, plaintiff’s reading of the statute would effectively mean 

an owner could never void an erroneous sale regardless of how soon the error was 

discovered. A voided sale would create liability to the buyer, while failure to rescind the 

sale would invite a lawsuit from the occupant whose personal property was erroneously 

sold. None of the language in this statute shows any intent by the Legislature to constrict 

an owner in such a manner. Again, if the Legislature had intended this statute to have 

2

 Neither party cited California Uniform Commercial Code section 1302 in their initial 

briefs. Thus, we requested supplemental briefing as to what consideration should be 

given to this statute. (Gov. Code, § 68081.) Both parties submitted supplemental letter 

briefs in response.
9

such a sweeping effect, it would have said so. (Jones v. Lodge at Torrey Pines 

Partnership, supra, 42 Cal.4th at p. 1171.)

In support of his interpretation, plaintiff cites Nist v. Hall (2018) 24 

Cal.App.5th 40 (Nist). He argues the null and void clauses chill bidder participation, 

which violates the purpose of Business and Professions Code section 21711. (See Nist, at 

pp. 45-46.) Nist does not support plaintiff’s argument.

In Nist, an occupant whose property had been erroneously sold brought a 

conversion claim against the buyer. (Nist, supra, 24 Cal.App.5th at pp. 43-44.) The 

occupant argued Business and Professions Code section 21711 did not apply to his claims 

because he did not have a written rental agreement for the unit, as required by the Act. 

The occupant argued the written agreement requirement trumped the immunity granted 

buyers in Business and Professions Code section 21711. Nist rejected this argument. 

(Nist, at p. 45.) Absent the immunity, “few if any bidders would attend lien sales or risk 

liability due to a technical compliance with the Act . . . . [The occupant’s] construction 

of the Act would literally defeat the legislative purpose of providing storage owners an 

effective remedy against defaulting customers.” (Id. at pp. 45-46, italics added.)

Nist is inapplicable here. It involved a lawsuit filed by an occupant against 

a buyer, the very subject of Business and Professions Code section 21711. Its discussion 

regarding the chilling effect is limited to this specific context. Further, Nist was 

concerned with reduced bidder participation because it would impair an owner’s ability to 

conduct lien sales. If bidders stopped attending lien sales due to the threat of occupant 

lawsuits, owners would be deprived of their remedy under the Act. (Nist, supra, 24 

Cal.App.5th at pp. 45-46.) Plaintiff’s argument misconstrues Nist by focusing solely on 

reduced bidder turnout. The argument fails to appreciate that Nist’s true concern was 

impairing an owner’s rights to conduct lien sales under the Act. (Ibid.) This concern is 

not present here, since it is the owner requiring the null and void clauses. Defendant does 

not need to be protected from its own contract provisions. And in fact, it is far likelier 
10

that plaintiff’s proposed interpretation would deprive owners of their ability to conduct 

lien sales. As discussed above, under plaintiff’s interpretation, an owner could not void 

an erroneous sale without exposing itself to liability.

c. improper waiver under the Civil Code

Plaintiff also appears to contend the null and void clauses constitute an 

improper waiver of the rights established in section 2328 and Business and Professions 

Code section 21711. He argues, based on Civil Code sections 1812.609 and 3513, that 

these rights cannot be waived by contract. We reject this argument. The null and void 

clauses do not compel plaintiff to waive any of his rights under section 2328 or Business 

and Professions Code section 21711. As explained above, the null and void clauses do 

not affect any of the rights contained in these statutes. Section 2328 pertains to the 

auction process. Business and Professions Code section 21711 establishes immunity for 

good faith buyers against occupant lawsuits. In contrast, the null and void clauses relate 

to postsale conduct by a seller in relation to a buyer.

d. exercising the null and void clauses

Plaintiff only contests the facial validity of the null and void clauses. He 

does not dispute defendant’s contention that it properly exercised the clauses if they are 

found to be valid. Nonetheless, we address defendant’s contention and find it to be

supported by the record. Less than an hour after the sale’s completion, defendant 

determined it had mistakenly sold the contents of the unit, rescinded the sale, and 

attempted to fully refund plaintiff’s money. This all occurred before plaintiff even began

to remove any goods from the unit. Given these facts, defendant timely exercised the 

null and void clauses in good faith. As such, its rescission of the sale is not a breach of 

contract or of the implied covenant of good faith and fair dealing.
11

However, this opinion should not be read as tacit approval of all null and 

void clauses that a storage facility owner may require bidders to accept. Similar clauses, 

or an owner’s exercise of such a clause, may be invalid for reasons not contemplated 

herein. This opinion only finds that such clauses are not facially invalid based on section 

2328 or Business and Professions Code section 21711, as argued by plaintiff, and that 

defendant properly exercised the clauses in this case.

2. Economic duress

Next, plaintiff argues he consented to the null and void clauses under threat 

of economic loss. Refusal to accept the clauses would effectively bar him from 

participating in defendant’s lien sales, which, he asserts, would cause him to lose 25

percent of his income. He contends there is a triable issue of fact as to whether the threat 

of this loss constitutes economic duress. We find no triable issue of fact exists.

“The underlying concern of the economic duress doctrine is the 

enforcement in the marketplace of certain minimal standards of business ethics. Hard 

bargaining, ‘efficient’ breaches and reasonable settlements of good faith disputes are all 

acceptable, even desirable, in our economic system.” (Rich & Whillock, Inc. v. Ashton 

Development, Inc. (1984) 157 Cal.App.3d 1154, 1159.) But, the system disdains “the 

wrongful exploitation of business exigencies to obtain disproportionate exchanges of 

value. . . . The economic duress doctrine serves as a last resort to correct these 

aberrations when conventional alternatives and remedies are unavailing.” (Ibid.)

Economic duress requires an unlawful or “wrongful act which is 

sufficiently coercive to cause a reasonably prudent person faced with no reasonable 

alternative to succumb to the perpetrator’s pressure.” (Rich & Whillock, Inc. v. Ashton 

Development, Inc., supra, 157 Cal.App.3d at p. 1158.) “Examples of such ‘wrongful 

acts’ include ‘[t]he assertion of a claim known to be false or a bad faith threat to breach a 

contract or to withhold a payment . . . .’” (Myerchin v. Family Benefits, Inc. (2008) 162 
12

Cal.App.4th 1526, 1539, disapproved on other grounds by Village Northridge 

Homeowners Assn. v. State Farm Fire & Casualty Co. (2010) 50 Cal.4th 913, 929, fn. 6.)

Nothing in the record shows defendant did anything akin to a wrongful act. 

All participants must agree to the null and void clauses to participate in defendant’s lien 

sales. The clauses are not unlawful under any of the statutes cited by plaintiff. And there 

is no evidence that defendant created this requirement for any coercive purpose or in bad 

faith or is exercising these clauses in such a manner. Instead, the record suggests the null 

and void clauses serve a practical business function. They allow defendant to avoid 

mistakenly selling its occupants’ possessions. For example, the delinquent sale 

agreement states defendant may void the sale if it “‘verifies that the tenant has paid the 

outstanding balance in full while the auction was taking place.’” Similarly, here,

defendant rescinded the sale soon after it learned the occupant had paid his past-due 

balance and the unit had been sold by error.

Plaintiff also appears to contend that it is wrongful for defendant to bar him 

from a public sale if he refuses to agree to the null and void clauses. However, “[a]bsent 

a legal provision to the contrary, a private party generally may choose to do or not to do 

business with whomever it pleases.” (Drum v. San Fernando Valley Bar Assn. (2010) 

182 Cal.App.4th 247, 254.) Plaintiff has not established an unqualified right to attend 

defendant’s lien sales. While he cites In re Wallace (1970) 3 Cal.3d 289, for the 

proposition that he has the right to attend public events, this case is unpersuasive. Its 

analysis is limited to whether a specific petitioner’s conviction of trespass under Penal 

Code section 602 was supported by sufficient evidence. (Wallace, at p. 293.) This has 

no bearing on the issues here.

Further, plaintiff has not established that he lacks a reasonable alternative to 

accepting the null and void clauses. His assertion that he will lose 25 percent of his 

income is unsupported by the record. The record only establishes that 20 percent to 25

percent of the lien sales plaintiff attends are conducted by defendant. It does not 
13

necessarily follow that defendant’s sales represent 25 percent of all of plaintiff’s buying 

opportunities, much less 25 percent of his income. And even if this is true, if plaintiff 

does not like the terms of defendant’s sales, he could presumably make up for these lost 

buying opportunities elsewhere. Among other things, he could attend lien sales held by 

other self-storage facilities or purchase goods from other sources to resell. Plaintiff has 

not explained why these options are not reasonable alternatives.

3. Illusory provisions

Throughout his brief, plaintiff refers to defendant’s unqualified right to 

void the sale as illusory. We decline to consider this argument. Plaintiff did not raise 

this issue with the trial court. (Pratt v. Union Pacific Railroad Co. (2008) 168 

Cal.App.4th 165, 174.) Also, this argument is not stated under a separate heading and is 

not sufficiently developed.3 (T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12.)

C. The Conversion Claim

The trial court properly granted summary adjudication of plaintiff’s 

conversion claim. “‘Conversion is the wrongful exercise of dominion over the property 

of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right 

to possession of the property; (2) the defendant’s conversion by a wrongful act or 

disposition of property rights; and (3) damages.’” (Hernandez v. Lopez (2009) 180 

Cal.App.4th 932, 939-940.)

3

 While we do not consider the merits of this argument, we note that such clauses are not 

facially invalid. “[W]hen a party is given absolute discretion by express contract 

language, the courts will imply a covenant of good faith and fair dealing to limit that 

discretion in order to create a binding contract and avoid a finding that the promise is 

illusory.” (Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 

57.)
14

As set forth above, defendant timely determined the sale was erroneous and 

rescinded the sale under the null and void clauses. This action completely extinguished 

the sale, “rendering it void ab initio, as if it never existed.” (DuBeck v. California 

Physicians’ Service (2015) 234 Cal.App.4th 1254, 1264.) Under these circumstances, 

plaintiff cannot establish ownership or a right to possess the contents of the storage unit.

D. Unlawful Detainer

Finally, plaintiff appears to contend that defendant was required to use the 

unlawful detainer process (Code Civ. Proc., § 1161 et seq.) to retake the contents of the 

storage unit. The relevance of this argument is unclear. Plaintiff does not explain how 

defendant’s failure to initiate unlawful detainer proceedings has any bearing on 

defendant’s right to void the sale. We are “not required to examine undeveloped claims 

or make [plaintiff’s] arguments for [him].” (Berkley v. Dowds (2007) 152 Cal.App.4th 

518, 527.)

We also reject this contention on its merits. Unlawful detainer statutes 

provide a “‘summary procedure for regaining possession of real property wrongfully 

withheld by a tenant.’” (Deal v. Municipal Court (1984) 157 Cal.App.3d 991, 995, italics 

added; see Code Civ. Proc., § 1161 [specifying unlawful detainer applies to “[a] tenant of 

real property”].) Plaintiff purchased the contents of the unit at the lien sale, not an 

interest in the unit itself. (See Bus. & Prof. Code, §§ 21702, 21705, 21707 & 21711.) 

Since he had no interest in any real property, unlawful detainer procedures do not apply.
15

III

DISPOSITION

The judgment is affirmed. Defendant is entitled to its costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.