Filed 3/14/23 Stone v. U.S. Security Associates CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

ROBERT STONE et al.,

Plaintiffs and Appellants,

v.

U.S. SECURITY ASSOCIATES, 

INC.,

Defendant and Respondent.

 B318986

 (Los Angeles County

 Super. Ct. No. BC604257)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Yvette M. Palazuelos, Judge. Affirmed.

The Dion-Kindem Law Firm, Peter R. Dion-Kindem; The 

Blanchard Law Group and Lonnie C. Blanchard III for Plaintiffs

and Appellants.

Hunton Andrews Kurth, Jason P. Brown, Robert T. 

Quackenboss, Trevor S. Cox and Cameron L. Davis for Defendant 

and Respondent.

——————————
2

Appellants Robert Stone and Abraham Aguayo 

appeal from a judgment entered in favor of Respondent 

U.S. Security Associates, Inc. (USSA) granting USSA’s 

separate motions for summary adjudication on the putative 

class action complaint alleging a single cause of action for a 

violation of the Fair Credit Reporting Act (FCRA; 15 U.S.C. 

§ 1681 et seq.). The complaint alleged that USSA violated 

the FCRA by failing to use a separate disclosure form when

it procured a consumer report on Stone, Aguayo, and other 

putative class members during the employment hiring 

process.

USSA filed a motion for summary adjudication 

against Stone on the ground that he had released his FCRA 

claim against USSA when he settled a separate case 

against his former employer, Universal Protection Services 

(UPS), a corporate affiliate of USSA. On appeal, Stone 

argues the trial court erred in granting the motion, 

asserting USSA did not present admissible evidence to 

prove the requisite corporate relationship between UPS

and USSA, as necessary to establish that the release of his 

claims against UPS also released his claim against USSA.

USSA also filed a motion for summary adjudication 

against Aguayo on the grounds that he was precluded from 

serving as a named class representative and his individual 

and class claims were barred by the statute of limitations 

and statute of repose governing FCRA claims. On appeal, 

Aguayo argues the trial court erred in granting the motion 

because his claim was timely filed based on (1) a date 

established by agreement of the parties and prior court 
3

order and (2) the principles of equitable tolling or the 

relation back doctrine. 

As we shall explain, neither Stone’s nor Aguayo’s 

arguments have merit. USSA carried its burden on its 

respective defenses to Stone’s and Aguayo’s claims. USSA 

demonstrated it was entitled to judgment as a matter of 

law, and neither Stone nor Aguayo presented a triable 

issue of material fact warranting a trial. Thus, the trial 

court properly granted USSA’s motions, and we affirm the 

judgment.

FACTS AND PROCEDURAL BACKGROUND

A USSA is a private security company that operates 

approximately 160 branches across the country and 

employs over 50,000 people. USSA presented evidence that 

in July 2018, it was purchased by another security 

company, Allied Universal, which was created in 2016 by 

the merger of two security companies, Allied Barton 

Security Services and UPS. 

In 2013, UPS hired Stone as a security guard and 

post commander in Los Angeles. He was terminated in 

early 2014. In February 2014, Stone applied to USSA for a 

position as a security guard. During the employment 

hiring process, USSA conducted a background check on 

Stone and obtained consumer reports on him. 
4

A. Stone’s California Class Actions

1. California Labor Code Claims 

Against UPS

In February 2015, Stone submitted a demand for 

arbitration with the American Arbitration Association 

against UPS (AAA case). Among his claims, Stone alleged 

violations of California’s wage and hour laws, individually 

and on behalf of other putative class members. Stone 

sought unpaid wages, compensatory damages, restitution 

and disgorgement, and legal fees. In December 2018, Stone 

entered into a settlement agreement to resolve the AAA 

case claims. 

2. Fair Credit Reporting Class Action 

Against USSA

On December 15, 2015, Stone filed a class action 

complaint against USSA (now before us) alleging that 

USSA violated the FCRA because the company failed to use 

a separate disclosure form when procuring the consumer 

report on him and other putative class members during 

their employment hiring process (disclosure claim). Stone 

sought statutory damages, punitive damages, and attorney 

fees (Stone’s FCRA case). USSA filed an answer to the 

complaint.

B. Proceedings in Federal Court

In January 2016, USSA filed a notice of removal of 

Stone’s FCRA case to the United States District Court for 

the Central District of California. At the parties’ request, 

the district court subsequently transferred the FCRA claim 
5

to the United States District Court for the Northern 

District of Georgia.

1. The Consolidation of Stone’s FCRA 

Class Action with Michael DeCaro’s 

FCRA Class Action

Stone’s federal FCRA putative class action was 

consolidated with another putative class action against 

USSA filed by Michael DeCaro. DeCaro was a former 

USSA employee who, on June 3, 2015, filed a putative class 

action suit against USSA in the United States District 

Court for the Middle District of Florida.1 Like Stone, 

DeCaro had alleged that USSA violated the FCRA by 

failing to make the required disclosure before procuring a 

consumer report on him. DeCaro’s complaint also 

contained a second putative class action claim, alleging 

that USSA fired him in April 2015 based on the 

information in the consumer report (adverse action claim). 

The Georgia district court ordered Stone and DeCaro 

to file a consolidated complaint. In July 2016, they filed a 

consolidated complaint that included the disclosure claim 

and the adverse action claim on behalf of themselves and a 

nationwide class of plaintiffs as to whom USSA, within five 

years of the complaint, had procured a consumer report for 

employment purposes or had taken adverse employment 

action against based on the information contained in the 

report (the federal case). 

1 In early 2016, DeCaro’s case was transferred to the 

district court in Georgia.
6

2. USSA’s Motion to Dismiss

On May 3, 2017, USSA filed a motion to dismiss the 

consolidated class action claims that arose “more than two 

years before the filing of Plaintiffs’ original complaints.” 

USSA argued that dismissal was appropriate because 

extending the class to include claims beyond title 15 United 

States Code section 1681p’s (hereafter section 1681p) twoyear statute of limitations “would require discovery as to 

individual issues with respect to the applicability of the 

discovery rule to each putative class member,” thus making 

a class action “unsustainable.” USSA’s proposed order 

granting the motion contained the following proposed 

language on the dates that commenced the two-year statute 

of limitation: “the Court hereby dismisses with prejudice 

any claims that extend beyond two-years from the date the 

original complaints were filed (beyond June 3, 2015 [the 

date DeCaro filed his original complaint] for Adverse Action 

Class claims and December 15, 2015 [the date Stone filed 

his original complaint] for Improper Disclosure and 

Authorization Class claims).” 

In their response, Stone and DeCaro “agree[d] not to 

challenge the two-year versus five-year look back period 

argument Defendant raised in its Motion.” Stone and 

DeCaro stated they “take no issue with limiting both 

classes in this case [the consolidated action] to two years 

within the filing of the first-filed complaint (meaning not 

the consolidated complaint, but the first filed of the two 
7

state court complaints that had been [filed] prior to 

removal and consolidation) through the present.”

2

A federal magistrate judge prepared a 

recommendation that recited the parties’ respective 

positions and recommended that the district court judge

grant the motion. The district court judge adopted the 

magistrate judge’s recommendation and dismissed 

“[p]laintiffs’ class claims that seek to extend the FCRA 

statute of limitations to five years.” The district court did 

not rule on whether the date DeCaro filed his original 

complaint, June 3, 2015, or the date Stone filed his original 

complaint, December 15, 2015, commenced the running of 

section 1681p’s two-year statute of limitation on the 

disclosure claims. 

3. USSA Motion for Summary

Judgment 

Stone and DeCaro moved for class certification. 

USSA filed a motion for summary judgment, arguing that 

the federal courts did not have subject-matter jurisdiction 

over the disclosure claim. USSA argued Stone and DeCaro 

lacked standing because they could not show a concrete 

injury sufficient to warrant the exercise of federal subject 

matter jurisdiction. 

The magistrate judge recommended granting the 

motion on DeCaro’s disclosure claim and denying the 

2 Stone’s and DeCaro’s position on the date of 

commencement of the two-year statute of limitations was also 

included in the joint preliminary report and discovery plan. 
8

certification of DeCaro’s adverse action class.3 The 

magistrate judge also recommended that Stone’s FCRA 

disclosure claim be remanded to the Los Angeles Superior 

Court. On September 25, 2019, the district court judge 

adopted the magistrate’s recommendation, denied Stone’s 

motion to certify the class and remanded Stone’s disclosure 

claim to the Los Angeles Superior Court.4

C. Resumption of the Original Action (Case 

No. BC604257) in the Superior Court of 

Los Angeles County.

After that Stone revived the original complaint, 

which had been filed in December 2015 with Stone as the 

sole class representative, in the Superior Court. In 

January 2020, the superior court granted USSA leave to 

supplement its answer to allege the affirmative defense of 

release. USSA averred release because in December 2018, 

while Stone’s FCRA case against USSA was pending in 

district court, he settled his wage and hour claims against 

UPS. And as a condition for receiving a “Class 

3 After the magistrate judge issued the recommendation, 

DeCaro moved to amend his claims, but then DeCaro settled with 

USSA. The district court judge’s order states, the “Court does not 

address the Magistrate Judge’s recommendations about claims 

that solely relate to or depend on DeCaro and denies the motion 

to amend as moot.” 

4 In describing Stone’s disclosure claim, the district court’s 

order acknowledged Stone’s original class action suit against 

USSA was filed in the superior court in December 2015. 
9

Representative Enhancement Payment,” in the case 

against UPS, Stone executed a separate settlement 

agreement and release in which he agreed to release UPS 

and “each of its past, present and future . . . related 

companies/corporations” and “affiliated organizations” from 

“any and all claims, known and unknown, under federal, 

state and/or local law.” USSA alleged the release in the 

UPS matter released all claims against USSA, including 

the claims asserted in Stone’s FCRA case, because UPS and 

USSA were related companies and corporate affiliates. 

Stone then filed a motion for leave to file a first 

amended complaint to add two new named class 

representatives “so that this action can proceed” without 

Stone. Stone sought to add Aguayo5 and Derryck Dawson6

as named putative class representatives. The motion for 

leave attached a proposed first amended complaint, 

including a version of that complaint showing the 

modifications made from Stone’s original complaint filed in 

December 2015. According to Stone’s counsel’s declaration 

supporting the motion to amend, Aguayo was employed 

around the same time as Stone and, like Stone, could assert 

5 In the fall of 2013, Aguayo applied for a security position 

at USSA and was hired by the company. The proposed first 

amended complaint alleged that during the hiring process, USSA 

obtained a consumer report on him. 

6 Dawson is not a party to this appeal.
10

a disclosure claim against USSA.7 USSA opposed the 

motion to amend the original complaint arguing Aguayo 

could not serve as a class representative or assert an 

individual disclosure action against USSA because his 

claims were time-barred. USSA pointed out that the 

statute of limitations on Aguayo’s disclosure claim 

commenced in November 2013 and, thus, expired more 

than two years before Stone filed his original complaint in 

December 2015. 

In its order granting Stone leave to amend, the trial 

court specifically declined to rule on the statute of 

limitation issue. On August 19, 2020, Stone filed the first 

amended complaint, adding Aguayo and Dawson as class 

representatives. Like the original complaint in Stone’s 

FCRA case, the amended complaint alleged only a single 

claim for violation of the FCRA and alleged that USSA 

obtained the consumer report on Stone in December 2015.8 

1. Summary Adjudication as to Stone.

USSA filed a motion for summary adjudication on the 

ground that Stone released his claim against USSA in 

December 2018 when he settled his claims in the AAA case 

7 Although the record before this court does not disclose the

date Aguayo discovered the alleged FCRA violation, it is 

uncontroverted that the FCRA violation occurred on November 5, 

2013, the date USSA procured his consumer report. 

8 The amended complaint did not include any factual 

allegations relating to the newly added named class 

representatives or incorporate DeCaro’s claims. 
11

against UPS and its related corporations and affiliates, 

which included USSA. Stone opposed the motion, objecting 

to USSA’s evidence and asserting USSA had failed to 

present admissible evidence that USSA and UPS were 

under “common control” by Allied Universal. The trial 

court granted USSA’s motion for summary adjudication to 

Stone, overruling Stone’s evidentiary objections. 

2. Summary Adjudication as to Aguayo.

USSA also filed a motion for summary adjudication 

and summary judgment as to Aguayo. USSA argued that 

summary adjudication was proper on Aguayo’s individual 

claim because Aguayo was not a putative class member and 

could not serve as a class representative based on the twoyear statute of limitations and the five-year statute of 

repose governing the FCRA claims in section 1681p. USSA 

also asserted Aguayo was judicially and collaterally 

estopped from expanding the temporal scope of the putative 

class to include individuals like him, whose FCRA 

violations occurred more than two years before 

December 15, 2015—the date Stone filed his FCRA claim in 

the state court. 

Aguayo opposed the motion, arguing his claim was 

timely because in the federal case, the district court had 

established that time periods in section 1681p would be 

measured from June 3, 2015—DeCaro’s filing date, not 

Stone’s filing the date. Aguayo also argued that the 

doctrines of equitable tolling and relation back applied to 

FCRA’s statute of repose, and thus the five-year statute of 

repose did not bar his claim. 
12

The trial court granted USSA’s motion for summary 

adjudication. The court ruled Aguayo was judicially and 

collaterally estopped from asserting that June 3, 2015, 

rather than December 15, 2015, was the controlling date to 

determine the timeliness of the disclosure claim. The trial 

court found that the district court’s order did not clarify 

which date determined the class period. However, the 

litigation conduct after remand reflected an 

acknowledgment that Stone’s filing date governed the 

determination of the class, and Aguayo was estopped from 

claiming otherwise. The trial court also concluded that the 

FCRA’s five-year statute of repose was not subject to 

equitable tolling or the relation-back doctrine. Thus, 

Aguayo’s claim was barred by the statute of repose. In 

rejecting the application of the relation back doctrine, the

trial found that Stone’s disclosure claim, not DeCaro’s 

disclosure claim, was remanded to the trial court and thus 

the timeliness of Aguayo’s claims would be evaluated using 

Stone’s December 15, 2015, filing date. And based on that 

date, Aguayo’s alleged FCRA violation, which occurred on 

November 5, 2013, was time-barred. Finally, the trial court 

found that because Aguayo was not a class member, he 

could not serve as the class representative.9

9 The trial court granted summary adjudication as to 

Aguayo but denied the USSA’s motion for summary judgment. 

The court ruled that, although it was too late for any additional 

class representative to be added, the class action could proceed 

pending the outcome of an arbitration (previously compelled by 

the trial court) involving USSA and Dawson. However, after 
13

On February 16, 2022, the trial court entered 

judgment for USSA. Stone and Aguayo timely appealed the 

judgment. 

DISCUSSION

A. Standard of Review

A court may grant a motion for summary judgment or 

summary adjudication “only when ‘all the papers submitted 

show that there is no triable issue as to any material fact 

and that the moving party is entitled to a judgment as a 

matter of law.’ ” (Husman v. Toyota Motor Credit Corp.

(2017) 12 Cal.App.5th 1168, 1179; Soria v. Univision Radio 

Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 582; see Code 

Civ. Proc., § 437c, subd. (c).) A defendant moving for 

summary judgment has the burden of showing the court 

that the plaintiff has not established, and cannot 

reasonably expect to establish, the elements of the cause of 

action. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705; 

accord, Mattei v. Corporate Management Solutions, Inc.

(2020) 52 Cal.App.5th 116, 122.)

Where, as here, a defendant moves for summary 

adjudication on a cause of action for which the plaintiff has 

the burden of proof at trial, the defendant “must present 

evidence that either ‘conclusively negate[s] an element of 

the plaintiff’s cause of action’ or ‘show[s] that the plaintiff 

does not possess, and cannot reasonably obtain,’ evidence 

Dawson’s claims were settled in December 2021, the trial court 

dismissed the claims against USSA with prejudice.
14

necessary to establish at least one element of the cause of 

action. [Citation.] Only after the defendant carries that 

initial burden does the burden shift to the plaintiff ‘to show 

that a triable issue of one or more material facts exists as 

to the cause of action.’ ” (Luebke v. Automobile Club of 

Southern California (2020) 59 Cal.App.5th 694, 702–703; 

see Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 853–854.) “There is a 

triable issue of material fact if, and only if, the evidence 

would allow a reasonable trier of fact to find the underlying 

fact in favor of the party opposing the motion in accordance 

with the applicable standard of proof.” (Aguilar, at p. 850; 

accord, Welborne v. Ryman-Carroll Foundation (2018) 

22 Cal.App.5th 719, 724.)

“We review a grant of summary judgment de novo 

and decide independently whether the facts not subject to 

triable dispute warrant judgment for the moving party as a 

matter of law.” (Mattei v. Corporate Management 

Solutions, Inc., supra, 52 Cal.App.5th at p. 122; see Regents 

of University of California v. Superior Court (2018) 4 

Cal.5th 607, 618.) “We need not defer to the trial court and 

are not bound by the reasons for [its] summary judgment 

ruling; we review the ruling of the trial court, not its 

rationale.” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 

85.) “ ‘In performing our de novo review, we must view the 

evidence in a light favorable to plaintiff as the losing party 

[citation], liberally construing [the plaintiff’s] evidentiary 

submission while strictly scrutinizing [defendant’s] own 

showing, and resolving any evidentiary doubts or

ambiguities in plaintiff’s favor.’ ” (United Parcel Service 
15

Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1009; 

accord, Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 

at p. 843.) 

B. The Trial Court Properly Granted 

Summary Adjudication for USSA on 

Stone’s Claim. 

USSA based its motion for summary adjudication on 

Stone’s FCRA disclosure claim on the ground that the 

release Stone executed in December 2018 when he settled 

his AAA case against UPS barred his claim in this action. 

As a condition for receiving a “Class Representative 

Enhancement Payment” in the AAA case, Stone executed a 

separate settlement agreement and release, agreeing to 

release “any and all claims, known and unknown, under 

federal, state and/or local law” against UPS and “each of its 

past, present and future . . . related 

companies/corporations” and “affiliated companies” (defined 

as a company/corporation and/or partnership that is, 

directly or indirectly, under common control with UPS or 

any of its parents). The release also included UPS and 

“affiliated organizations (meaning companies that are less 

than 50% owned by [UPS] or any of its parents), 

including . . . [Allied Universal].” USSA argued the release 

in the AAA case governed the claims in this action because 

USSA was a corporate affiliate of UPS, and USSA and UPS 

were under common control of the same corporate parent, 

Allied Universal. 

USSA supported its motion with Stone’s discovery 

responses, the declaration of witnesses, exhibits, including 
16

the settlement agreement and release, and various exhibits 

showing the corporate relationships among USSA, UPS, 

and Allied Universal. Specifically, USSA submitted the 

declaration of Matthew Lambach, the associate counsel for 

Allied Universal. Lambach declared that, as legal counsel 

at Allied Universal, he had access to the legal and 

corporate records of Allied Universal and USSA and its 

related entities. Lambach testified under penalty of 

perjury that he had personal knowledge of corporate 

structure and mergers and acquisitions of Allied Universal, 

USSA, and UPS. He stated that beginning in mid-2018 

UPS and USSA were related companies and corporate 

affiliates under the common control of Allied Universal. 

Lambach specifically described the mergers of UPS with 

other entities to form Allied Universal in 2016 and Allied 

Universal’s July 2018 acquisition of USSA. Lambach 

further testified that exhibits 1 and 2 were true and correct 

copies of the certificates of merger filed with the Secretary 

of State of the State of Delaware showing the mergers of 

the corporate entities (Allied Universal and USSA), and 

that these documents were maintained in the usual course 

of Allied Universal’s business. Lambach also declared that 

exhibits 3 through 5 were true and correct copies of tables 

and an organizational chart showing the corporate 

ownership and structure of USSA, UPS, and Allied 

Universal, all maintained in the usual course of business. 

In his opposition, Stone conceded he executed the 

release in the AAA case, and the release was effective and 

legally valid. Moreover, he did not argue that the 

settlement agreement was unenforceable or did not cover 
17

the claims asserted in this case. Instead, Stone asserted 

USSA failed to submit admissible evidence to establish it 

was under “common control” with UPS. He specifically 

objected that Lambach lacked personal knowledge of the 

facts contained in his declaration. Stone asserted that 

Lambach’s statements about Allied Universal’s corporate 

structure were inadmissible legal conclusions. He objected 

that the exhibits contained hearsay to which no hearsay 

exception applied. And specifically complained that 

exhibits 3, 4, and 5 to the Lambach Declaration because

they “appear to have been created for purposes of this 

litigation.”

The trial court found that as a matter of law, USSA 

demonstrated through admissible evidence that it had a 

complete defense to Stone’s FCRA claim based on the 

release in the AAA case. The court determined Stone failed 

to raise a triable issue of fact and overruled all of Stone’s 

evidentiary objections to USSA’s evidence, concluding that 

“the Corporations Code and Defendant’s corporate 

ownership structure confirm that [USSA] and [UPS] are 

owned entirely by Allied Universal and are under common 

control and are affiliated entities.” 

Before this court, Stone repeats the arguments he 

asserted in the trial court and argues the court erred when 

it overruled his evidentiary objections to Lambach’s 

declaration and the exhibits. He also asserts USSA did not 

establish it was under common control with UPS as a 

matter of law. 
18

1. The Trial Court Properly Overruled 

Stone’s Evidentiary Objections.

As to the trial court’s rulings on the evidentiary 

objections, a split of authority exists on whether the de 

novo standard of review or the abuse of discretion review 

standard applies. (See Pipitone v. Williams (2016) 

244 Cal.App.4th 1437, 1451 [acknowledging split in 

authority and concluding de novo standard of review 

applied to evidentiary rulings “determined on the papers 

and based on questions of law such as hearsay”].) The 

California Supreme Court has not decided whether a trial 

court’s evidentiary rulings on a motion for summary 

judgment are reviewed de novo or for an abuse of 

discretion. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 

535 [declining to decide issue].)10 However, we need not 

decide which review standard governs because here, under 

either standard, the trial court did not err.

10 We note that cases considering this question and 

applying the abuse of discretion standard after Reid v. Google, 

Inc., supra, 50 Cal.4th 512 have been published. by the First 

Appellate District, Second Appellate District, Third Appellate 

District, Fourth Appellate District (Division One), Fifth Appellate 

District, and Sixth Appellate District. (See, e.g., LAOSD Asbestos 

Cases (2023) 87 Cal.App.5th 939, 946; Schmidt v. Citibank, N.A.

(2018) 28 Cal.App.5th 1109, 1118; Butte Fire Cases (2018) 

24 Cal.App.5th 1150, 1169; Duarte v. Pacific Specialty Ins. Co.

(2017) 13 Cal.App.5th 45, 52; O'Neal v. Stanislaus County 

Employees' Retirement Assn. (2017) 8 Cal.App.5th 1184, 1198; 

Ryder v. Lightstorm Entertainment, Inc. (2016) 246 Cal.App.4th 

1064, 1072; Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 

951.)
19

Lambach’s declaration established his personal 

knowledge of the corporate structure and relationships 

among USSA, UPS, and Allied Universal. The evidence in 

his declaration also served to authenticate the exhibits and 

establish the business records exception to the hearsay 

rule. 

First, Lambach established his personal knowledge of 

the matters set forth in his declaration through his 

testimony about his role in the company as the associate 

counsel for Allied Universal. (Evid. Code, § 702, subd. (b)

[“witness’ personal knowledge of a matter may be shown by 

any otherwise admissible evidence, including his own 

testimony”].) In his declaration, Lambach testified that he 

had access to the legal and corporate records of Allied 

Universal and USSA and its related entities, and that he 

had personal knowledge of corporate structure and mergers 

and acquisitions of Allied Universal, USSA, and UPS. The 

court was entitled to accept these assertions of personal 

knowledge. (See Butte Fire Cases, supra, 24 Cal.App.5th at 

p. 1169 [holding statements that facts based on personal 

knowledge of employer’s operations are sufficient to satisfy 

personal knowledge requirement]; cf. Stuart v. UNUM Life 

Insurance (9th Cir. 2000) 217 F.3d 1145, 1154–1155 

[reversing determination that declarant lacked personal 

knowledge where declarant served as company’s vice 

president and former member of human resources].) 

Neither in the trial court nor here has Stone offered legal or 

evidentiary support for his assertion that Lambach lacked 

personal knowledge of his own testimony. (See, e.g., All 

Towing Services LLC v. City of Orange (2013) 
20

220 Cal.App.4th 946, 954 [a party “cannot avoid summary 

judgment by asserting facts based on mere speculation and 

conjecture, but instead must produce admissible evidence 

raising a triable issue of fact”].)

Second, Lambach averred the exhibits attached to his 

declaration were true and correct copies of records 

maintained by Allied Universal in the ordinary course of its 

business. The trial court could reasonably conclude that 

the documents attached to the challenged declarations were 

sufficiently authenticated and admissible as business 

records. (See People ex rel. Owen v. Media One Direct, LLC

(2013) 213 Cal.App.4th 1480, 1484 [finding authentication 

adequate where declarant averred that she reviewed files 

relating to matter and attached documents were true and 

correct copies of pertinent correspondence]; Jazayeri v. Mao

(2009) 174 Cal.App.4th 301, 322 [“The witness need not 

have been present at every transaction to establish the 

business records exception; he or she need only be familiar 

with the procedures followed”].) We reach the same 

conclusion under a de novo standard of review.

Third, Lambach’s declaration established that the 

exhibits attached to the declaration as either non-hearsay 

or subject to a hearsay exception. As the trial court 

properly observed, exhibits 1 and 2 were admissible 

nonhearsay as official records and official writings. (See 

Evid. Code, § 1280.) Here, the trial court took judicial 

notice of the Delaware Secretary of State’s official stamp on 

the documents, which it found sufficient independent 

evidence that the records were prepared in such a manner 
21

as to assure their trustworthiness. We agree, and the court 

did not err in its treatment of this evidence. 

Lambach’s declaration also adequately established 

the foundation for exhibits 3 to 5 as business records within 

the meaning of Evidence Code section 1271. Under the 

business record exception to the hearsay rule, “[e]vidence of 

a writing made as a record of an act, condition, or event is 

not made inadmissible by the . . . rule when offered to prove 

the act, condition, or event if: [¶] (a) The writing was 

made in the regular course of a business; [¶] (b) The 

writing was made at or near the time of the act, condition, 

or event; [¶] (c) The custodian or other qualified witness 

testifies to its identity and the mode of its preparation; 

[and] [¶] (d) The sources of information and method and 

time of preparation were such as to indicate its 

trustworthiness.” (Evid. Code, § 1271, subds. (a)-(d).)

Lambach stated that exhibits 3, 4, and 5, which 

depict USSA’s corporate family ownership structure, were 

compiled from information maintained in the usual course 

of business. (See Conservatorship of S.A. (2018) 

25 Cal.App.5th 438, 448 [identification of records as 

documents “submitted with declaration” is sufficient to 

satisfy identification requirement of business record 

exception]; see also Butte Fire Cases, supra, 24 Cal.App.5th 

at pp. 1169–1170 [upholding conclusion that documents 

were business records where declarants testified such were 

true, correct, and maintained in ordinary course of 

business].) 

The records show USSA’s corporate structure as of 

December 12, 2018, the date on which Stone settled his 
22

claim against UPS; according to Lambach, that structure is 

identical to the corporate structure when the records were 

prepared (i.e., in March 2020 for exhibits 3 and 4 and in 

November 2018 for exhibit 5). In addition, given his role in 

Allied Universal and his familiarity with the various 

corporate entities’ mergers, structure, and relationships, 

Lambach was qualified to testify about the documents. 

(See Conservatorship of S.A., supra, 25 Cal.App.5th at 

pp. 447–448 [declaration of administrative assistant 

concerning medical records was sufficient because business 

record exception requires only that witness be familiar with 

preparation procedures].) Stone presented no evidence 

indicating otherwise. Contrary to Stone’s contention, the 

business record exception has no personal knowledge 

requirement. (Unifund CCR, LLC v. Dear (2015) 

243 Cal.App.4th Supp. 1, 8 (Unifund) [qualified witness 

need not be custodian, person who created record, or one 

with personal knowledge in order for business record to be 

admissible under hearsay exception].)

Moreover, the criteria for establishing that a 

document is subject to the business records exception to the 

hearsay rule may be inferred from the circumstances. 

(Unifund CCR, LLC v. Dear, supra, 243 Cal.App.4th Supp. 

at p. 8 [criteria for establishing that document is subject to 

business records exception to hearsay rule may be inferred 

from circumstances].)

In reaching this conclusion, we reject Stone’s effort to 

undermine the application of the business record exception 

to exhibits 3, 4, and 5, based on his view that the exhibits

appear to have been created for purposes of this litigation. 
23

Stone offers no evidence or cognizable argument in support 

of his view. (See People ex rel. Owen v. Media One Direct, 

LLC, supra, 213 Cal.App.4th at p. 1485 [speculative 

assertion that document was prepared for litigation was 

insufficient to place document outside business record 

exception].)

USSA submitted substantial credible evidence that 

Lambach was a qualified witness with the knowledge and 

competence to establish the authenticity of such records for 

the purposes of the business records hearsay exception.11

Furthermore, Lambach’s statements describing Allied 

Universal’s corporate structure are factual assertions, not 

legal conclusions. Stone did not establish any legal basis to 

disregard or controvert USSA’s evidence. 

2. USSA Demonstrated, as a Matter of 

Law, USSA and UPS Were Affiliated 

Companies and Under the Common 

Control of Allied Universal. 

Lastly, Stone argues that USSA failed to establish 

that it was under common control with Allied Universal as 

a matter of law. We disagree.

11 If Stone had concerns about the Lambach’s personal 

knowledge and competence, or the trustworthiness of the 

exhibits, he had an opportunity to challenge and test that 

evidence before he responded to the motion for summary 

adjudication. Stone had four months to prepare the opposition to 

the motion during which he could have sought additional 

discovery from USSA to test the veracity of Lambach’s 

declaration and the exhibits attached to it.
24

Although the release does not define the term 

common control, the Corporations Code provides guidance 

on common control. In corporate ownership, “ ‘control’ ” 

means the direct or indirect possession “of the power to 

direct or cause the direction of the management and 

policies of a corporation.” (Corp. Code, § 160, subd. (a).) 

“[C]ontrol exists even where one entity merely has 

potential rather than actual influence over another.”

(Everhealth Foundation, Inc. v. Department of Health 

Services (1985) 168 Cal.App.3d 708, 715.) In addition, a 

“corporation is an ‘affiliate’ of, or a corporation is ‘affiliated’ 

with, another specified corporation if it directly, or

indirectly through one or more intermediaries, controls, is 

controlled by or is under common control with the other 

specified corporation.” (Corp. Code, § 150.6.) As used in 

the release, and considering the circumstances in which it 

was executed, two business entities are under “common 

control” when a third entity has the potential or actual 

authority to direct both their management and policies. 

Here Lambach’s declaration relates that USSA and 

Universal are under the common control of Allied 

Universal. In addition to the exhibits, his statements 

provided the necessary evidentiary support for USSA’s 

argument that it and USP are under Allied Universal’s 

common control for the purpose of the release. Stone 

submits no alternative meaning of “common control” nor

controverts the evidence presented in Lambach’s 

declaration. 

In any event, Lambach’s declaration established that 

USSA and Universal are also corporate affiliates, within 
25

the meaning of the release. The trial court also held that

Stone’s release applied to companies affiliated with UPS. 

Before this court, Stone has not challenged the court’s 

determination.

Accordingly, given the evidence showing the 

corporate relationships among USSA, UPS, and Allied 

Universal, the trial court properly granted summary 

adjudication for USSA on Stone’s FCRA claim. 

C. The Court Properly Granted USSA’s 

Motion for Summary Adjudication on 

Aguayo’s FCRA Claim.

In its motion for summary adjudication on Aguayo’s 

FCRA claim, USSA argued that plaintiffs and their class 

counsel should be judicially and collaterally estopped from 

expanding the temporal scope of the putative class to 

include Aguayo’s claim based on parties’ agreement in the 

federal case and the district court order that the putative 

class on the disclosure claim would include only those 

individuals whose FCRA violations occurred after 

December 15, 2013. USSA argued that because Aguayo’s 

FCRA violation occurred on November 5, 2013, he was 

excluded from the putative class. Alternatively, USSA 

argued that Aguayo’s individual and class claims were 

barred by the five-year statute of repose in section 1681p 

because the statute of repose commenced running on his 

FCRA claim on November 5, 2013, when USSA obtained 

the consumer report on him, and thus extinguished his 

FCRA claim in 2018, almost two years before Aguayo was 

added as a party to this case. For the same reason, USSA 
26

asserted Aguayo could not serve as the name class 

representative in the action. 

Aguayo opposed the motion arguing that neither 

judicial nor collateral estoppel applied because he was not a 

part of the federal case and that, in any event, the parties 

in the federal case agreed, and the district court 

determined that the disclosure claim would include those 

individuals whose FCRA violations occurred after June 3, 

2013, two years before the date on which DeCaro filed his 

claim. Aguayo argued that the two-year statute of 

limitation did not bar his claim because it accrued on 

November 5, 2013, within two years of when DeCaro filed 

his action. Aguayo also asserted the five-year statute of 

repose did not extinguish his claims or preclude him from 

serving as the named class representative because the 

statute of repose was equitably tolled as of DeCaro’s filing 

date or because his claim would relate back to the date that 

DeCaro filed his action. 

In granting the motion for summary adjudication, the 

trial court agreed with USSA’s position that Aguayo was 

barred from asserting the action based on the doctrines of 

judicial estoppel and collateral estoppel. The court found 

Aguayo conducted the litigation after remand based on 

Stone’s filing date of December 15, 2015, and could not 

relitigate the class cutoff date. In addition, the court also 

found Aguayo’s claim (filed almost eight years after the 

alleged FCRA violation) was barred by the five-year statute 

of repose in section 1681p. The court further determined 

the statute of repose precluded Stone from serving as the 

class representative. The court ruled that neither equitable 
27

tolling nor the relation back doctrine applied to statutes of 

repose and, even if they did, the date to which they would 

apply was Stone’s filing date of December 15, 2015, not 

DeCaro’s filing date. The court found that because only 

Stone’s disclosure claim (and not DeCaro’s claim) was 

remanded to the state court, Stone’s filing date governed 

the timeframes in section 1681p. 

Before this court, Aguayo assails the court’s order, 

reasserting the same arguments he made in his opposition 

to the motion in the trial court. As we explain, the court 

properly granted summary adjudication for USSA.

1. Section 1681p

Section 1681p sets forth the statute of limitation and 

repose governing claims alleging FCRA violations. The 

statute establishes that an enforcement action must be 

brought not later than the earlier of (1) two years “ ‘after 

the date of discovery [or constructive discovery] by the 

plaintiff of the violation that is the basis for such liability’ ” 

(Drew v. Equifax Info. Servs., LLC (9th Cir. 2012) 690 F.3d 

1100, 1109) or (2) five years “ ‘after the date on which the 

violation that is the basis for such liability occurs’ ” (Drew,

at p. 1109; see, e.g., Blake v. TransUnion LLC (E.D.Mich. 

Jan. 16, 2019, No. 18-10406) 2019 U.S.Dist. Lexis 7371, at 

*5 [observing § 1681p(1) is a statute of limitations and 

§ 1681p(2) is a statute of repose]). Thus, under the 

statute’s language, in no event may a plaintiff bring an 

FCRA enforcement action more than five years after the 

date the violation occurs. A violation occurs when a 

defendant procures a consumer report for the plaintiff. 
28

(See Del Toro v. Centene Corp. (N.D.Cal. Oct. 14, 2020,

No. 19-cv-05163-LHK) 2020 U.S.Dist. Lexis 191368, at *10; 

Ruiz v. Shamrock Foods Co. (C.D.Cal. Aug. 22, 2018, 2:17-

cv-06017-SVW-AFM) 2018 U.S.Dist. Lexis 148929, at *17,

fn. 6.)

2. Application of Section 1681p to 

Aguayo’s Claims

It is undisputed that USSA obtained the consumer 

report on Aguayo on November 5, 2013, and that the 

alleged FCRA violation occurred on that date. It is also 

uncontroverted Aguayo was added as a named class 

plaintiff to this case on August 19, 2020, well beyond the 

expiration of both the two-year statute of limitations and 

the five-year statute of repose in section 1681p. 

The application of the two-year statute of limitations 

to Aguayo’s individual action and class claim depends on

whether the operative date for the limitations period in

section 1681p is DeCaro’s filing date of June 3, 2015, or 

Stone’s filing date of December 15, 2015. If the operative 

date is June 3, 2015, the two-year statute of limitations 

does not bar Aguayo’s individual and class claims because 

the violation occurred on November 5, 2013, less than two 

years before DeCaro filed his original complaint. (See 

American Pipe & Construction Co. v. Utah (1974) 414 U.S. 

538, 550 [timely class action commences action for all 

members of class]; Becker v. McMillin Construction Co.

(1991) 226 Cal.App.3d 1493, 1501 [class action tolled 

statute of limitation on claims of individual homeowners 

who would have been members of purported class alleging 
29

construction defects at residences in home development].) 

However, if the operative date is Stone’s filing date of 

December 15, 2015, then Aguayo’s claims are untimely 

under section 1681p’s two-year statute of limitations.

a. Stone’s December 15, 2015,

Filing Date Is the Operative 

Date for Section 1681p.

Aguayo argues DeCaro’s filing date controls the

timeliness of the claims based on the parties’ agreement in 

the federal case and the district court’s order on the motion 

to dismiss, which Aguayo asserts established the class 

cutoff date. USSA disagrees, maintaining the parties and 

district court adopted Stone’s filing date as the cutoff for 

the class FCRA disclosure claims in the federal case. 

On this point, the record in the federal case relating 

to the motion to dismiss is unclear. As the trial court 

observed, the record in the federal case discloses that the 

parties asserted different positions on which filing date 

should control the disclosure claim. The magistrate judge’s 

recommendation, which the district court judge adopted, 

explained that plaintiffs advocated for the DeCaro filing 

date and defendant advocated for the Stone filing date, but 

the magistrate did not recommend the adoption of one date

or the other. Further, nothing in the district court’s order 

designated which of the two filing dates—June 3, 2015, or 

December 15, 2015—would govern the disclosure claim.12 

12 Even the parties’ joint preliminary report and discovery 

plan filed in the federal case does not illuminate the issue—it 
30

Likewise, nothing in the consolidated complaint discloses 

whether DeCaro’s filing date or Stone’s filing date was 

meant to govern the application of the two-year statute of 

limitations on the consolidated disclosure claim. 

However, the federal court’s subsequent order on the 

motion for summary judgment, remanding Stone’s 

disclosure claim to the state court, reflects the district court

remanded only Stone’s disclosure claim to the California 

State court. When the district court ruled on USSA’s 

motion for summary judgment, DeCaro was no longer a 

party in the case, because DeCaro settled his claims 

against USSA while the magistrate judge’s ruling on the 

motion to dismiss was pending review by the district court

judge. Further, in the order remanding Stone’s disclosure 

claim, the district court judge referenced Stone’s filing date 

of December 2015, not DeCaro’s filing date. Thus, we agree 

with the trial court’s interpretation of the federal court’s 

order as remanding only Stone’s disclosure claim (with its 

original filing date of December 15, 2015) to the California 

state court.

Moreover, irrespective of which filing date governed

the application of statute of limitations on the consolidated 

complaint’s disclosure claim in the federal court, when 

Stone resumed his case in the superior court, he revived his 

original state court complaint. After that, when Stone 

sought to amend his original state court complaint to add 

Aguayo as the class representative, he did not include any 

merely described the position Stone and DeCaro took on the 

operative date for the claims. 
31

reference to DeCaro’s disclosure claim, its filing date, or 

otherwise seek to conform the allegations of disclosure 

claim in the state court complaint with the disclosure claim 

in consolidated complaint. Furthermore, when USSA’s 

opposed the motion to amend the complaint, arguing that 

Stone could not add Aguayo as a named plaintiff because

the two-statute of limitations expired on Aguayo’s claim, 

Stone did not assert the DeCaro’s filing date governed the 

disclosure claim in the state court complaint. As the trial 

court observed in the order granting summary 

adjudication, before filing the opposition to the motion,

Stone and Aguayo conducted this litigation, including 

requests seeking to discover the identity of additional class 

members, as if Stone’s December 15, 2015, filing date 

governed claims in the case. Given the record before us, we 

conclude USSA demonstrated as a matter of law that 

December 15, 2015 determines the application of the 

section 1681p two-year statute of limitation.

b. Aguayo’s Individual and Class 

Claims Are Untimely Under 

Section 1681p.

Because Stone’s filing date establishes the two-year 

statute of limitation timeframe under section 1681p for 

FCRA violations in this case, we agree with the trial court 

that Aguayo’s individual FCRA claim is time-barred.

In any event, even assuming Aguayo’s claim was not

time-barred because DeCaro’s filing date governed the 

application of the two-year statute of limitation in section 

1681p, we conclude the trial court properly granted the 
32

motion for summary adjudication based on the five-year 

statute of repose in section 1681p. The statute of repose 

extinguished Aguayo’s claim in November 2018, almost two 

years before Aguayo was added as a party to this case. In 

reaching this conclusion, we reject Aguayo’s assertion that 

equitable tolling and the relation back doctrines would 

apply to halt the statute of repose. We join the majority of 

courts which have determined that absent an express

statutory exception, equitable tolling does not apply to a 

statute of repose. (See, e.g., Cal. Pub. Employees’ Ret. Sys.

v. ANZ Sec., Inc. (June 26, 2017, No. 16-373) __ U.S. __ 

[137 S.Ct. 2042, 2051] (CalPERS) [“Court repeatedly has 

stated in broad terms that statutes of repose are not subject 

to equitable tolling”]; CTS Corp. v. Waldburger (2014) 573 

U.S. 1, 9 [“Statutes of limitations, but not statutes of 

repose, are subject to equitable tolling”]; Balam-Chuc v.

Mukasey (9th Cir. 2008) 574 F.3d 1044, 1048 [“ ‘Statutes of 

repose are not subject to equitable tolling’ ”]; PGA West 

Residential Assn., Inc. v. Hulven Internat., Inc. (2017)

14 Cal.App.5th 156, 178 [“[U]nlike a procedural statute of 

limitations, substantive statutes of repose are generally not

subject to statutory or equitable tolling”].) 

Courts have also refused to apply equitable tolling to 

the statute of repose in class action cases like this one, 

where the class action was amended to add a new named 

class representative after the statute of repose had 

extinguished the proposed new class representative’s claim. 

(See De Vito v. Liquid Holdings Grp., Inc. (D.N.J. Dec. 31, 

2018, Civ. No. 15-6969(KM)(JBC)) 2018 U.S.Dist. Lexis 

217963, at *40 [refusing to toll statute of repose to allow 
33

plaintiffs to add new named class plaintiff beyond statute

of repose period] (De Vito); Leber v. Citigroup 401(k) Plan 

Inv. Comm. (S.D.N.Y. 2017) 323 F.R.D. 145,153–154 [timebarred from raising any individual claims at time of entry 

into case and not yet member of certified class, should not 

have been permitted to serve as lead plaintiff].)13

Similarly, courts have uniformly refused to apply the 

relation back doctrine to statutes of repose. (See, e.g., 

Miguel v. Country Funding Corp. (9th Cir. 2002) 309 F.3d 

13 We observe that none of the cases Aguayo relies upon to 

support his equitable tolling argument assist him. He cites to 

American Pipe & Construction v. Utah, supra, 414 U.S. 538, but 

its pronouncements about equitable tolling in the context for 

class action intervenors apply only to statutes of limitation, not to 

statues of repose. (See CalPERS, supra, __ U.S. __ [137 S.Ct. at 

pp. 2052–2053]; Police & Fire Retirement System v. IndyMac 

MBS, Inc. (2nd Cir. 2013) 721 F.3d 95, 106.) Equally unavailing 

is Aguayo’s reliance on In re Cobalt Int'l Energy, Inc. Secs. Litig. 

(S.D.Tex. Aug. 23, 2017, No. CV H-14-3428) 2017 U.S.Dist. Lexis 

134495 and In re SunEdison, Inc. Securities Litigation (S.D.N.Y. 

2019) 329 F.R.D. 124, 145–146 both of which concerned the effect 

of statutes of repose on class certification. The courts in Cobalt

and SunEdison determined that the statute of repose did not bar 

class certification, where the class action was timely filed by a 

named plaintiff, but the class was not certified until after the 

statute of repose ran on the individual claims of the unnamed 

class members. (Cobalt, at *11–12; SunEdison, at pp. 145–146.) 

This case is different. The application of statutes of repose in the 

context of class certification of is not at issue here. Instead, this 

case concerns a party who was added as a named class plaintiff 

after the statute of repose extinguished the plaintiff’s individual

claim. Thus, neither Cobalt nor SunEdison controls the 

application of statute of repose here.
34

1161, 1164–1165 [relation-back doctrine did not extend 

court’s jurisdiction beyond statute of repose], disapproved

on another ground in Hoang v. Bank of America, N.A. (9th 

Cir. 2018) 910 F.3d 1096; In re Lehman Bros. Securities

(S.D.N.Y. 2011) 800 F.Supp.2d 477, 483 [relation-back 

doctrine does not apply to statutes of repose argument]; 

Harris v. OSI Financial Services, Inc. (N.D.Ill. 2009) 

595 F.Supp.2d 885, 898 [statutes of repose are not subject 

to equitable extensions, including the relation-back 

doctrine]; see also De Vito, supra, 2018 U.S.Dist. Lexis 

217963, at *63 [“[R]elation-back is in tension with the 

principle that a statute of repose is a rigid and essential 

limitation on the scope of the cause of action itself”].) 

Accordingly, neither equitable tolling nor the relation 

back doctrine applied, and the five-year statute of repose in 

section 1681p bars Aguayo’s individual FCRA claim. 

c. Aguayo Cannot Serve as the 

Named Class Representative.

Finally, because Aguayo’s individual claim is 

untimely under section 1681p, he is also ineligible to serve 

as the class representative in the case. Generally, a 

“plaintiff may not maintain an action on behalf of a class 

against a specific defendant if the plaintiff is unable to 

assert an individual cause of action against that 

defendant.” (Haas v. Pittsburgh National Bank (3rd Cir. 

1975) 526 F.2d 1083, 1096, fn. 18.) “Unless at least one 

named Plaintiff can state a claim for relief under each 

count Plaintiffs do not have standing to bring claims as 
35

part of a putative class action.” (In re Flonase Antitrust 

Litigation (E.D.Pa. 2009) 610 F.Supp.2d 409, 413.)

In view of the foregoing, the trial court properly 

granted summary adjudication for USSA on Aguayo’s 

claims. 

DISPOSITION

The judgment is affirmed. U.S. Security Associates, 

Inc. is awarded its costs on appeal.

NOT TO BE PUBLISHED.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.