Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIS19722, William S. Cannon, Judge.
Haller, J.
Frank Arko appeals from a summary judgment in favor of Greg Buckner, Bob Buckner, and Jerry Reeder Bail Bonds (collectively Buckner). The trial court entered summary judgment on the basis that the statute of limitations had run. On appeal, Arko (representing himself) argues the summary judgment should be reversed because (1) there are triable issues of fact as to whether the limitations bar should be applied in his case, and (2) he did not receive actual notice of the summary judgment hearing date. We reject his arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
To facilitate our review of Arko's contentions, on our own motion we take judicial notice of the superior court file.
According to Arko's allegations, Buckner, a bail bondsman, had provided Arko with a bail bond to ensure his presence at legal proceedings in Washington state. Arko claims that after Buckner was mistakenly informed that Arko was planning to flee the country, Buckner took custody of Arko and seized Arko's property. Based on these allegations, on March 7, 2005, Arko, representing himself, filed a complaint in superior court against Buckner. The complaint alleged that in July 1999 Buckner took Arko from his place of business and held him against his will at his home and converted his personal property. Buckner filed an answer to the complaint, raising the statute of limitations defense.
On December 22, 2005, Buckner filed a motion for summary judgment on the grounds that the complaint was barred by the three-year statute of limitations for conversion of personal property. (Code of Civ. Proc., § 338, subd. (c).) A hearing on the motion was set for February 24, 2006. At the time Buckner filed the summary judgment motion, Arko was incarcerated at the Federal Correctional Institute in Victorville, California. Buckner apparently served the summary judgment motion on Arko at this location.
Subsequent statutory references are to the Code of Civil Procedure.
To the extent Buckner's complaint also states a false imprisonment claim, this claim is governed by a one-year statute of limitations (§ 340, subd. (c)) and thus was also filed after the expiration of the limitations period.
On February 10, 2006, Arko requested a continuance of the February 24 summary judgment hearing due to various medical problems, including vision and kidney problems and eye surgeries. At the February 24 hearing, Arko appeared (apparently telephonically), and the court took the summary judgment motion off calendar because the motion had not been served at least 75 days before the hearing. (§ 437c, subd. (a).) The court ruled Arko's request for a continuance of the summary judgment hearing was moot.
On March 8, 2006, Buckner re-served the summary judgment motion on Arko at the Victorville address, with the hearing date set for June 16, 2006. According to Arko, he never received these documents and was unaware of the new summary judgment hearing date because on March 3, 2006, he was transferred from the Victorville facility to Oklahoma, and then to a facility in Louisiana. However, Arko did not provide notice of his new address until April 2006, which was after Buckner mailed the summary judgment papers in March 2006. On April 7, 2006, Arko filed a change of address with the court informing the court that he had been transferred from the Victorville facility on March 3, 2006, and providing his new address in Louisiana. It appears Arko also notified Buckner in April 2006 of his change of address. In these documents, Arko requested a four-month continuance of the proceedings because he had suffered two strokes (on February 26 and March 9, 2006), his health was declining, and he was anticipating further surgery.
The hearing on the motion for summary judgment was held on June 16, 2006, as scheduled. Arko had not filed any opposition papers, and he did not appear. The court's June 16 minute order states: "The proof of service shows that plaintiff was timely served at the FCI-Victorville address he provided to the court." The court granted the summary judgment motion because (1) there was no triable issue of fact as to whether the action was barred by the three-year statute of limitations, and (2) alternatively, Arko failed to file a separate statement of disputed facts (§ 437c, subd. (b)(3)). The court directed Buckner to submit a proposed judgment in conformance with the court's ruling.
On July 10, 2006, Arko telephonically appeared at a case management conference that had been scheduled before the June 16 summary judgment ruling. Apparently relying on the summary judgment ruling in his favor, Buckner did not appear at the conference. As of this date, Buckner had not yet submitted a proposed judgment reflecting the summary judgment ruling. The record reflects that at the case management conference, the trial court and Arko discussed the case, but no mention was made of the summary judgment ruling.
It appears the trial court overlooked the June 2006 summary judgment ruling in favor of Buckner at this case management conference. According to Arko, the court (with no mention of the summary judgment ruling) stated it would review the file and that the matter would be reset for a hearing in approximately 30 days. The court's minute order for the conference is consistent with Arko's description, making no reference to the summary judgment ruling, and merely requiring issuance of an order to show cause why Buckner's answer should not be stricken for failure to comply with local rules.
Still apparently unaware of the June 2006 summary judgment ruling, on July 24, 2006, Arko filed papers intended to be in opposition to the summary judgment motion. These papers include a detailed factual presentation in support of his contention that the statute of limitations should be equitably tolled due to his medical illnesses and impediments imposed by incarceration. He also stated he filed a federal civil rights action against Buckner in 2003, which action was dismissed in January 2004.
Arko claims he did not learn about the June 16, 2006 hearing and ruling on the summary judgment motion until August 23, 2006, when he called the superior court to inquire about the case. On August 28, 2006, Arko filed an affidavit with the superior court asserting the lack of notice and requesting a rehearing of the summary judgment motion. On that same date he filed a notice of appeal challenging the summary judgment ruling. On September 11, 2006, Arko filed a second notice of change of address in superior court, providing his address in Louisiana. He noted that he had mailed his change of address to the court in April 2006, and followed up with a phone call, and stated that mail was still being sent to his former address.
On October 17, 2006, the summary judgment ruling was entered as a judgment.
DISCUSSION
This appeal from the summary judgment in Buckner's favor requires us to independently review whether Buckner carried his burden to show he was entitled to the judgment as a matter of law. Consistent with this standard, we first evaluate whether Buckner carried his burden to show no triable issue of fact at the time of the summary judgment hearing. We conclude he did.
Arko, however, seeks relief from the judgment based on lack of actual notice of the hearing date. Evaluating this contention, we conclude that even if Arko was not provided actual notice, the record shows the summary judgment is correct as a matter of law because there are no grounds for relief from the statute of limitations bar. Accordingly, reversal of the judgment is not warranted.
I. The Granting of the Summary Judgment
A "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if this burden is met, the burden of production shifts to the opposing party to make a prima facie showing of a triable issue of material fact. (Ibid.) In ruling on the motion, the court must view the evidence in the light most favorable to the opposing party. (Shin v. Ahn (2007) 42 Cal.4th 482, 499.)
Opposition to a summary judgment motion must be filed "not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise." (§ 437c, subd. (b)(2).) The opposition papers are required to include a separate statement of disputed facts. (§ 437c, subd. (b)(3).) Failure to comply with the requirement to file a separate statement of disputed facts "may constitute a sufficient ground, in the court's discretion, for granting" the summary judgment motion. (Ibid.; see Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 960.) However, even if no opposition is filed, the moving party is not entitled to summary judgment unless it meets its initial burden of showing there is no triable issue of material fact. (See Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.)
On appeal from a summary judgment, we review the record de novo. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1143.) We are not bound by the trial court's stated reasons for its summary judgment ruling; rather, we examine the facts before the trial court and then independently determine their effect as a matter of law. (Ibid.)
In his statement of undisputed facts submitted in support of his summary judgment motion, Buckner relies on the facts that the alleged conversion occurred in July 1999, and the March 2005 complaint was not filed until nearly six years later. Conversion is subject to a three-year statute of limitations. (§ 338, subd. (c).) Thus, the statute of limitations expired in July 2002, and the complaint was not filed until three years later. Arko did not allege any facts in his complaint addressing an equitable tolling theory, and he did not file an opposition to the summary judgment motion. Accordingly, because Arko did not present the equitable tolling theory prior to the summary judgment motion, Buckner was not required to refute this issue to prevail on his summary judgment motion. (See Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1739-1740.) Buckner carried his burden to show the statute of limitations had expired, thereby entitling him to summary judgment.
On November 17, 2005, Arko filed a motion to amend the complaint, and proffered an amended complaint that did include equitable tolling allegations. However, for various procedural reasons, the trial court denied his motion to amend the complaint without prejudice. In our discussion below addressing Arko's challenge to the summary judgment based on lack of notice, we address the merits of his equitable tolling allegations and conclude they do not present facts supporting equitable tolling.
II. Notice Issue
Arko challenges the summary judgment on the basis that his due process rights were violated because he did not receive actual notice of the June 16, 2006 hearing date, apparently because the notice was sent to the Victorville correctional facility after he had been transferred to the Louisiana correctional facility. Even if Arko did not receive actual notice, based on our review of Arko's papers filed in opposition to the summary judgment motion, the record shows as a matter of law there are no grounds for relief from the limitations bar. Accordingly, we reject Arko's contention of reversible error.
On March 8, 2006, Buckner mailed the summary judgment papers notifying Arko of the June 16, 2006 hearing date to the Victorville address. In doing so, Buckner used the most recent address for Arko in the court file. Arko, like all litigants, was obligated to provide notice of his change of address. (Cal. Rules of Court, rule 2.200; Lint v. Chisolm (1981) 121 Cal.App.3d 615, 620-621; Westerfelt v. Robertson (1981) 122 Cal.App.3d Supp. 1, 8.) Arko did not provide his new address until April 2006, which was after Buckner mailed the pleadings to him. Accordingly, when Buckner mailed the pleadings to the Victorville address, the service was proper and deemed complete on March 8, 2006. (§ 1013, subd. (a) [service is complete at time of mailing to address stated on last document filed and served in case].) Although by the time of the June 16 hearing Arko had notified the court that he had been transferred from the Victorville facility on March 3, 2006, the trial court had not been provided with any information indicating that Arko's mail was not forwarded to his new address at the Louisiana facility. In the absence of such a showing, the trial court did not abuse its discretion in concluding Arko had been properly notified and in ruling on the summary judgment motion.
For the first time on appeal, Arko asserts that the Victorville facility returned Buckner's mailing of the summary judgment papers to Buckner. If this occurred, the record does not show the trial court was aware of it at the time of the June 2006 summary judgment hearing.
Thereafter, based on his claim that he did not receive actual notice, Arko simultaneously requested relief from the trial court and filed a notice of appeal. The trial court did not rule on his request for relief. We need not evaluate the procedural questions arising from Arko's simultaneous recourse to the trial and appellate courts because, even assuming he did not receive actual notice and that he diligently provided notice of his change of address, reversal of the summary judgment is not warranted. In his papers filed on July 24, 2006, Arko set forth facts that he claimed support tolling of the statute of limitations. Construing these papers as his opposition to the summary judgment motion (see Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1211-1212), liberally construing the facts therein in his favor, and exercising our de novo review, the presented facts do not support tolling. Accordingly, the summary judgment was correct as a matter of law and is not subject to reversal. (See People v. Edward D. Jones & Co. (2007) 154 Cal.App.4th 627, 634, 636 [judgment may not be reversed for procedural errors unless there was a miscarriage of justice]; Bethlahmy v. Customcraft Industries, Inc. (1961) 192 Cal.App.2d 308, 310.)
If Arko was afforded relief from the summary judgment based on lack of actual notice of the hearing date, he was not obligated to file an opposition to the summary judgment until 14 days before the new hearing date. However, because he did file these papers (which he characterizes on appeal as including his statement of disputed facts), we are able to resolve the issue as a matter of law on appeal.
This is not a case where the judgment was void because of lack of fundamental due process or a jurisdictional notice deficiency. (See, e.g., Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 204-206.) Due process requires notice reasonably calculated to inform a party of the proceeding and to afford the party an opportunity to be heard. (Id. at p. 205.) This notice was provided by virtue of the mailing of the summary judgment papers to Arko's last address on file. (See Baughman v. Medical Board (1995) 40 Cal.App.4th 398, 402.)
In his July 2006 papers, Arko asserts the following. While he was in Buckner's custodial care in July 1999, he attempted suicide. He was repeatedly hospitalized in August, September, October, and December 1999, and in January, February, March, and May 2000. These hospitalizations resulted from psychiatric concerns, failing kidneys and diabetic complications. In May 2000, Arko began working, but continued to be plagued by health issues involving his kidneys, high blood pressure, diabetes and depression, and was frequently hospitalized. In June 2000, he began suffering from an illness that ultimately rendered him blind in one eye. In November and December 2000, Arko had several knee operations, and in January 2001 had exploratory surgery to rule out cancer. In January 2001, he was taken into custody. He was hospitalized in February and March 2001, and thereafter was incarcerated on the medical floor. In 2001 and 2002, Arko was repeatedly transferred between facilities in different states and was frequently hospitalized. In January 2002, he was transferred to a facility where he had access to a law library. At this facility Arko began preparing a complaint against Buckner. However, in September 2002, he was transferred to another facility and was separated from his legal materials until April 2003. In 2003, he filed a civil rights complaint in a Washington federal district court; the case was transferred to a California federal district court and dismissed for failure to state a claim in January 2004. In 2004, he was again hospitalized and in poor health. With the assistance of another inmate, he filed the instant complaint in superior court in March 2005.
A party may seek tolling of a statute of limitations based on (1) statutory tolling provisions, or (2) the equitable tolling doctrine. (§ 351 et seq.; see Hull v. Central Pathology Service Medical Clinic (1994) 28 Cal.App.4th 1328, 1334-1336 (Hull).) In the statutory tolling provisions, the Legislature has provided for tolling if at the time the cause of action accrued, the plaintiff was "insane" (§ 352, subd (a))—i.e., suffering from a mental condition rendering the plaintiff " 'incapable of caring for his [or her] property or transacting business or understanding the nature or effects of his [or her] acts . . . .' " (Feeley v. Southern Pacific Transportation Co. (1991) 234 Cal.App.3d 949, 952, brackets in original [statute tolled while plaintiff was in coma].) Although the facts presented by Arko indicate he was ill enough to be periodically hospitalized during the limitations period, there is no indication that he was mentally incapable or unconscious for a three-year period of time so as to render timely an action filed six years after the alleged conversion.
The statutory tolling provisions also permit tolling when the plaintiff was "imprisoned on a criminal charge . . . ." (§ 352.1, subd. (a).) However, this provision requires that the plaintiff be incarcerated at the time the cause of action accrued, and only provides for a two-year tolling period. Arko states he was taken into custody in 2001; thus, he was not imprisoned at the time the cause of action accrued in July 1999. Moreover, his complaint was filed three years past the limitations period, thus exceeding the two-year tolling period permitted under section 352.1.
For the first time on appeal, Arko states he was also briefly in custody in July 1999 in Seattle, during a portion of the period of time when the conversion was occurring. Even considering this factual assertion, it does not extend the limitations period to March 2005.
Apart from the statutory tolling provisions, equitable tolling is a "judge-made doctrine 'which operates independently of the literal wording of the Code of Civil Procedure' to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness." (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) The equitable tolling doctrine is an adjunct to the statutory tolling periods created by the Legislature, based on a recognition that "the Legislature cannot 'predict all of the circumstances that come within the purpose of the tolling exceptions . . . .' " (Lambert v. Commonwealth Land Title Ins. Co. (1991) 53 Cal.3d 1072, 1078.) Equitable tolling has been applied "in carefully considered situations to prevent the unjust technical forfeiture of causes of action, where the defendant would suffer no prejudice." (Lantzy, supra, 31 Cal.4th at p. 370.)
To apply the equitable tolling doctrine, (1) the plaintiff must have diligently pursued his or her claim; (2) the loss of a judicial forum must be attributable to forces outside the plaintiff's control; and (3) the defendant must not be prejudiced. (Hull, supra, 28 Cal.App.4th at p. 1336.) Here, Arko's six-year delay in bringing his action—which was three years beyond the statute of limitations—cannot reasonably be characterized as diligent pursuit of his claim. Even assuming Arko's illnesses impeded his ability to personally prepare and file a complaint, his allegations do not indicate he was incapacitated to the point of being unable to request that someone else prepare and file a complaint for him. Further, in May 2000 he was well enough to be able to work, and he could have filed a complaint during this time period. Additionally, from January to September 2002 he was at a facility where he had access to legal materials, and he states that he began preparing a complaint against Buckner at this time. It was incumbent upon him to be aware of the July 2002 expiration of the statute of limitations and file a timely complaint to preserve his rights. His filing of an action against Buckner in federal court in 2003 cannot serve to toll the limitations period because it was filed after the statute of limitations had already expired. (See Addison v. State of California (1978) 21 Cal.3d 313, 319 [equitable tolling proper based on federal court action filed before expiration of limitations period]; 65 Butterfield v. Chicago Title Ins. Co. (1999) 70 Cal.App.4th 1047, 1062 [tolling " 'cannot revive a statute which has already run out' "].) Moreover, the federal court action was dismissed in January 2004, and he delayed filing his superior court action until March 2005.
For the first time on appeal, Arko states the federal district court action was filed in 2002, and he provides information indicating he continued to try to pursue his case in federal court after the January 2004 dismissal. Additionally, for the first time on appeal, Arko asserts that under principles of equitable estoppel the statute of limitations bar should not be applied because until March 2000 Buckner continued to promise to return his property. Even assuming that because of the peculiar posture of this case we should consider these factual assertions for the first time on appeal, they do not warrant reversal and remand for further proceedings before the trial court. Arko cannot be provided equitable relief because he simply waited too long to file the superior court action—i.e., six years after the alleged 1999 conversion, five years after he claims to have realized in 2000 that his property would not be returned, and 18 months after the January 2004 dismissal of the federal district court action.
The equitable tolling doctrine applies "occasionally and in special situations" and requires that the plaintiff have diligently pursued his or her claim. (Addison v. State of California, supra, 21 Cal.3d at p. 316; Hull, supra, 28 Cal.App.4th at p. 1336.) Similarly, application of equitable estoppel requires that "the plaintiff proceed[] diligently once the truth is discovered . . . ." (Lantzy v. Centex Homes, supra, 31 Cal.4th at p. 384.) " '[T]he right to be free of stale claims in time comes to prevail over the right to prosecute them.' " (Addison, supra, 21 Cal.3d at p. 317.) Notwithstanding the illnesses, incarceration, and other factors cited by Arko, he has not shown special circumstances justifying his three-year delay in filing suit after the expiration of the three-year limitations period.
The summary judgment in favor of Buckner was correct as a matter of law. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed. Parties to bear their own costs on appeal.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.