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
D efendant and Respondent.
* * *2 For several years , p laintiff Davi d 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 a n auction held by defendant. D efendant 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 d efendant’s computer system incorrectly marked the
unit for sale

. Due to this error , defendant immediately rescinded the deal based on two document s plaintiff had signed that con tain ed clause s allowing defendant to void the sale for any reason (the null and void clauses).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, argu ing summary adjudication was improper. P rimarily , he contends the null and void clauses

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

- storage auction sale s , and (2) he agreed to the m under duress. We disagree

. We also rej ect plaintiff ’ s argument that defendant was required to file an unlawful detainer action to retak e possession of the purchased goods after it rescinded the sale .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 subd s . (a) & (c) .) I f an occupant fails to pay rent , a n owner may sell the personal property contained within the occupant’s storage unit through a lien sale . ( Bus. & Prof

. Code, §§ 2170 2

- 21707.)

Defendant owns and operates self

- storage facilitie s throughout the country
and conducts lien sales in California p ursuant to the Self

- Service Storage Facility Act (Bus. & Prof. Code, § 21700 et seq. ; the Act )

. P laintiff has made a living f or 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
document ed 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 t o 25 percent of
which were conducted by d efendant.

Defendant held a lien sale at its facility in Fountain Valley in July 2017.
As a co ndition 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 ” ; an d ( 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. P laintiff 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 P ublic S ale for the
unit , which certified he had made the winnin g bid for the contents of the storage unit during competitive bidding. The certification also stated plaintiff “ [understood] that4

[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. T he unit ’ s occupant had paid his past due balance weeks before the sale , b ut 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

. P laintiff refused to accept the sale ’ s rescission and declined the refund.
D efendant 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.

P laintiff 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,
d efendant moved for summary adjudication on the second, third, and fourth causes of action, all of which arose from defendant ’ s alleged ly wrongful rescission of the sale. The trial court granted the motion , finding defendant had properly voided the sale under the
null and void clauses.

T he 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. St andard 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 Richfie ld 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 s ummary 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. T he 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, con sidering 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 ev idence 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 i s a triable issue of fact as to whether plaintiff agreed to the null and void clauses6

under economic duress. W e 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 establi sh ed the sale was an auction

. There is enough evidence in the record to dispel this argument

. T he delinquent sale agreement and certification refer to the sale as an

“ auction, ” reference bid s , 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

.

S ection 2328 is comprised of four sub division s

. U nder 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 con tract is created between the bidder and seller. He asserts t he exclusive grounds for undoing this contract are in sub divisi ons (2) through (4) of section 2328

. The null
and void clauses are precluded , he argues, because they improperly add additional
gro unds for undoing a completed sale

. P laintiff 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 L egislature’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 B ecause we reach this conclusion , we do not address defendant’s argument that the sale was properly rescinded under the mutual mistake doctrine.7

Sub division (1), which is irrelevant to t his appeal, governs the sale of goods put up in lots. (§ 2328, subd. (1).) Sub division (2) gives an auctioneer discretion to reopen bidding whe n a bid is made while “ the hammer is falling.” (§ 2328 , subd. ( 2 ).)
Sub division (3) establishes rules for sel ling a good with or without reserve , withdrawing goods from sale , and retracting bids. (§ 2328, subd. (3).) Finally, sub division (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, n othing in section 2328 shows any intent by the L egislature to establish the grounds for voiding a completed sale , let alone the
exclusive grounds

. The only sub divis ion that even mentions voiding a comple ted sale is
sub divisi on (4), which allows a buyer to void a sale due to improper bidding by the seller.
But t he focus of sub divisi on (4) is on integrity in the auction process , not the grounds for voiding a sale

. A llowing 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 L egislature had intended for this statute to establish the entire means for a buyer and seller to v oid 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, e ven if this intent could somehow be re ad into section 2328 , nothing in the statute’s text bars the parties from agreeing to additional grounds for8

voiding a completed sale. (Cal. U. Com. Code, § 1302, subd. (a) [“ Except as otherwise provided . . . t he effect of provisions of this code may be varied by agreement”].) 2

b. B usiness and P rofessions C ode 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 chap ter. ” P laintiff contends this statute places the risk of an erroneous sale on defendant , the owner

. T he null and void clauses , he asserts, violate the statute by allowing
defendant to improperl y shift the risk onto himself, the buyer

.

Plaintiff reads too much into Business and Professions Code s ection 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

. T he 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, p laintiff’s reading of the statute would effectively mean
an owner could never void a n erroneous sale regardless of how soon the error was
discovered

. A voided sale would create liability to the buyer , w hile f ailure to rescind the
sale would invite a lawsuit from the occupant whose persona l property was erroneously
sold

. None of the language in this statute shows any intent by the L egislature to constrict
an owner in such a manner

. Again, i f the L egislature had intended this statute to have

2 Neither party cited California Uniform Commercial Code section 1302 in their initial briefs. Thus, w e requested supplemental briefing as to what consideration should be give n 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 violate s 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 r equirement trumped the immunity granted buyers in Business and Professions Code section 21711

. Nist rejected this argument

. ( Nist , at p. 45.) A bsent the immunity, “few if any bidders would attend lien sales or risk liability due to a technical complianc e 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 p p . 45

- 46 , italics added .)

Nist is in applicable here

. I t involved a lawsuit filed by an occupant against

a buyer , the very subject of Business and Professions Code section 21711. I t s 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
C al.App.5th at pp. 45

- 46.) Plaintiff’s argument misconstrues Nist by focusing solely on
reduced bidder turnout . The argument fails to appreciat e that Nist’s true concern was impairing an owner’s rights to conduct lien sales under the Act. ( Ibid .) This c oncern 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 i n fact , it is far likelier10

that plaintiff’s proposed interpretation would deprive owner s 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. i mproper w aiver under the C ivil C ode 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 rig hts contained in these statutes. S ection 2328 pertain s to the auction process

. Business and Professions Code section 21711 establishes immunity for good faith buyers against occupant lawsuit s

. In contrast, t he null and void clauses relate

to postsale co nduct by a seller in relation to a buyer.

d. e xercising the n ull and v oid c lauses 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

su pported 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. Th is 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 d uress Next, p laintiff argues he consent ed to the null and void clauses under threat
of economic loss. R efus al 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 inc ome. 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, t he system disdains “ the wrongful exploitation of business exigencies to obtain disproportionate exchanges of
value

. . . . T he 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) 16212

Cal.App.4th 1526, 1539 , disapproved on other grounds by Village Northridge
Homeowners Assn. v. State Farm F ire & Casualty Co. (2010) 50 Cal.4th 913 , 929, fn. 6 .)

Nothing in the record shows defendant did anything akin to a wrongful act.
A ll participants must agree to the null and void clauses to participate in defendant’s lien
sale s

. The clauses are not unla wful under any of the statutes cited by plaintiff. And t here
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 c lauses 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 i t 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 h e cites In r e Wallace (1970) 3 Cal.3d 289 , for the proposition that he has the right t o attend public events , t his 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 issu es 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 not13

necessarily follow that defendant’s sales represent 25 percent of all of pl aintiff’s buying opportunities, much less 25 percent of his income. And even if this is true, i f plaintiff does not like the terms of defendant’s sales, he could presumably make up for these lost buying opportunities elsewhere . A mong other things, he cou ld 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 p rovisions Throughout his brief, plaintiff refers to defendant ’ s unqualified right to
void the sale as illusory. We decline to consider this argument

. P laintiff 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 poss ession 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. ” (S torek & 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 erroneou s 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.) U nder the se circumstances,
p laintiff 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

u nlawful 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
d efendant ’ 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.)
W e also reject this contention on its merits. U nlawful 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 d etainer applies to “[a] tenant of real property ”]

. ) P laintiff 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 h e 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 c osts on appeal.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.