Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. RCV095034. Kenneth Andreen, (retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Keith D. Davis and Barry L. Plotkin, Judges.
Kofi Obeng-Amponsah, in pro. per., for Plaintiff and Appellant.
Seyfarth Shaw, Mark H. Van Brussel and William D. Bishop, Jr., for Defendant and Respondent.
OPINION
MILLER J.
Kofi Obeng-Amponsah (Obeng-Amponsah) sued White Mountain Services, LLC, (WMS) for a variety of issues related to a mortgage and real property. The trial court (1) granted WMS’s motion for a judgment on the pleadings, without leave to amend (Code Civ. Proc., § 438); (2) denied Obeng-Amponsah’s motion for reconsideration; and (3) denied Obeng-Amponsah’s motion to set aside the dismissal and the judgment on the pleadings. Obeng-Amponsah contends the trial court erred by (1) denying Obeng-Amponsah’s motion to strike WMS’s allegedly untimely answer; (2) granting WMS’s motion to set aside its default; (3) granting WMS’s motion for a judgment on the pleadings; (4) denying Obeng-Amponsah’s motion to set aside the dismissal and judgment on the pleadings; and (5) denying Obeng-Amponsah’s motion for reconsideration. We affirm the judgment.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. FACTS
The following facts are taken from Obeng-Amponsah’s complaint against WMS filed on May 4, 2006.
From May 1, 1981, through May 12, 1999, Obeng-Amponsah owned a single family home in Alta Loma (the residence). In January 1996, WMS bought the mortgage on the residence (the mortgage). In May 1997, WMS sold the mortgage to the Federal National Mortgage Association (Fannie Mae). WMS continued to service the mortgage on behalf of Fannie Mae.
Obeng-Amponsah refers to Fannie Mae as “FNMA.”
In or about July 1998, Obeng-Amponsah sued WMS for wrongful and fraudulent conduct in the processing of the mortgage. Obeng-Amponsah also filed for Chapter 13 bankruptcy protection. On September 9, 1998, Fannie Mae agreed to modify the mortgage if Obeng-Amponsah dismissed his bankruptcy action. In October 1998, Obeng-Amponsah accepted the modified mortgage terms, and dismissed his bankruptcy case. From November 1998 through May 1999, Obeng-Amponsah made 11 mortgage payments pursuant to the modified mortgage agreement, and his payments were accepted until March 1999. On May 12, 1999, WMS foreclosed on the residence, and sold the residence to Fannie Mae. WMS denied that the terms of the mortgage had ever been modified and denied that it received payments from Obeng-Amponsah.
In June 1999, Fannie Mae brought an unlawful detainer action against Obeng-Amponsah. In December 1999, Fannie Mae and WMS evicted Obeng-Amponsah from the residence. On May 22, 2000, WMS, Fannie Mae, and Obeng-Amponsah participated in mediation and reached a settlement agreement for their various pending cases. As part of the settlement agreement, Obeng-Amponsah was given the opportunity to purchase the residence, and to assist him with obtaining a loan, WMS agreed to write letters to the credit bureaus retracting any negative information concerning Obeng-Amponsah. The letters to the credit bureaus were provided by Citimortgage (Citi), not WMS, when Obeng-Amponsah questioned this, he was informed that WMS was now Citi.
From December 9, 1999, through October 3, 2000, Fannie Mae owned the residence, and maintained the residence through its agent National Real Estate Network, Inc. (NREN). On October 3, 2000, WMS purchased the residence from Fannie Mae, for resale to Obeng-Amponsah. From October 3, 2000, through May 2, 2002, WMS had exclusive control of the residence. WMS did not maintain the residence, and essentially abandoned it.
After October 2000, Obeng-Amponsah’s former neighbors contacted him about dangerous and unsafe conditions at the residence. Neighbors told Obeng-Amponsah that children kicked down the gate of the residence in order to play in the backyard, and broke windows and glass doors. Obeng-Amponsah then contacted WMS; however, WMS did nothing to rectify the damage to the residence. In February 2001, Antimite appraised the residence. Antimite discovered (1) water leakage, which resulted in damage to the plywood beneath the sink; and (2) missing shingles, which resulted in rain and fungi damage to the wood beneath the shingles. In March 2001, Obeng-Amponsah tried to climb over a fence at the residence to investigate a possible gas leak. Obeng-Amponsah fell in the process of climbing over the fence and injured his head and neck. Obeng-Amponsah suffered chipped discs in his neck, which caused continued neck pain and headaches.
In April 2001, NREN informed Obeng-Amponsah that NREN had not been maintaining the residence since WMS purchased it in October 2000. Obeng-Amponsah contacted WMS, and WMS promised to begin maintaining the property, but it did not. From April 2001 to May 2002, Obeng-Amponsah provided the trial court and WMS with photographs of damage to the exterior of the residence. Obeng-Amponsah requested, and the trial court recommended, that WMS permit Obeng-Amponsah to live in the residence and maintain it, pending the close of escrow; however, WMS refused.
When escrow closed in May 2002, Obeng-Amponsah discovered damage at the residence, such as (1) the air conditioner was missing its motor; (2) the residence was infested with roaches, ants, and cats; (3) the water heater and pipes were infected with mold and fungi; (4) numerous roof shingles were missing; (5) the exterior and interior of the residence suffered rain damage; (6) the automatic garage door was broken; (7) a portion of the fence had been removed; (8) a gate was destroyed; (9) the landscaping had died; (10) the sprinklers were broken; (11) windows were broken and the screens removed; (12) the glass doors were broken and the screens were torn; and (13) the faucets and toilet tanks leaked.
B. PROCEDURAL HISTORY
The following procedural history is taken from the entire record on appeal, i.e. it is not limited to the complaint.
On May 4, 2006, Obeng-Amponsah filed a complaint against WMS. Obeng-Amponsah sought damages for (1) fraud; (2) negligence; and (3) breach of contract. On May 8, 2006, Obeng-Amponsah purportedly sent a complaint and summons to WMS’s vice president, Mr. Michael Allemang (Allemang), via Federal Express (FedEx) second-day delivery. FedEx made two attempts to deliver the documents to Allemang at an address in Ann Arbor, Michigan. After the unsuccessful delivery attempts, Allemang contacted FedEx and instructed them to deliver the package of documents to a different address in Ann Arbor, Michigan. The package of documents was left at Allemang’s door without obtaining a signature, because FedEx’s records reflected that Allemang authorized the package to be released without a signature. On June 23, 2006, Obeng-Amponsah filed a proof of service claiming that he served his complaint and summons on WMS by substituted personal service, via FedEx. (§ 415.20, subd. (a).)
We infer that Obeng-Amponsah’s proof of service was rejected by the trial court, because on June 23, 2006, Obeng-Amponsah again sent the documents to Allemang. This time, the documents were sent via FedEx overnight delivery, and Obeng-Amponsah requested Allemang’s direct signature prior to the package being released. Allemang signed for the FedEx package on June 26, 2006; however, Obeng-Amponsah did not attach proof of Allemang’s signature to the proof of service.
On July 6, 2006, Obeng-Amponsah moved the court to enter a default judgment against WMS in the amount of $564,348. The court clerk entered the default judgment on July 6, 2006.
On November 2, 2006, Obeng-Amponsah applied to the trial court for the relief demanded in his complaint. (§ 585, subd. (b).) On November 8, 2006, the trial court found that it lacked jurisdiction to hear the application for relief. The trial court informed Obeng-Amponsah that he had not properly served the documents. The trial court told Obeng-Amponsah that he could not serve the documents by FedEx. Obeng-Amponsah asked the court if it would have jurisdiction if Allemang had signed for the FedEx delivery. The court told Obeng-Amponsah that it would be happy to look at his signature receipts to determine if they complied with the statutory requirements for service of process. It does not appear that Obeng-Amponsah gave the trial court any documents to review; however, Obeng-Amponsah again explained to the court that he served Allemang by FedEx. The trial court again told Obeng-Amponsah that service by FedEx was improper, and that the court did not have jurisdiction to proceed with the matter. Further the trial court set aside the request for default and the related disposition.
We take judicial notice of (1) the notice of application for relief; (2) the memorandum of points and authorities in support of the application for relief, and (3) the declaration of Obeng-Amponsah in support of the application for relief, which were all filed on November 2, 2006, in Riverside County Superior Court case No. RCV095034. (Evid. Code, § 452, subd. (d)(1).)
The set-aside actions appear in the corrected minute order; however, they do not appear in the initial minute order or in the reporter’s transcript.
On December 11, 2006, Obeng-Amponsah again filed a proof of service claiming that he served his complaint and summons on WMS on June 26, 2006, by FedEx. This time, Obeng-Amponsah attached Allemang’s signature of receipt to the proof of service. On December 15, 2006, Obeng-Amponsah filed an amended statement of damages, and a request for entry of a default judgment against WMS. Also on December 15, 2006, Obeng-Amponsah sent (1) the request for entry of default; (2) the amended statement of damages; (3) and a third copy of the summons and complaint to Allemang, via the United States Postal Service (USPS) Express Mail, second-day delivery. Allemang signed for the package of documents on December 18, 2006.
On December 19, 2006, a trial court clerk denied Obeng-Amponsah’s request for a default judgment, because he found that a default judgment had already been entered against WMS. On December 29, 2006, the same trial court clerk again denied Obeng-Amponsah’s request for a default judgment, because a default judgment had already been entered against WMS, on July 6, 2006. Nevertheless, on January 8, 2007, a different trial court clerk entered a default judgment against WMS in the amount of $573,132.88.
The notice of returned documents is file stamped December 15, 2006; however, next to the clerk’s signature line, the clerk dated the document December 19, 2006.
On January 12, 2007, WMS moved to remove the case to federal court, and filed an answer to Obeng-Amponsah’s complaint, in federal court. Obeng-Amponsah filed a motion to remand the matter back to state court, and a motion to strike WMS’s allegedly untimely answer. On March 20, 2007, the federal court found that the motion for removal was untimely, and remanded the case back to the superior court. The federal court found that the motion was untimely because Obeng-Amponsah properly served the complaint on WMS on June 26, 2006, which triggered the 30-day limitation for removal to federal court.
On April 18, 2007, in San Bernardino County Superior Court, WMS filed a motion to set aside the default judgment. WMS argued that service of the complaint and summons via Federal Express was not proper. Obeng-Amponsah argued that the federal court had determined that the service was proper, which is why it concluded the motion for removal was untimely; therefore, the issue concerning proper service was res judicata. On May 2, 2007, the trial court concluded that the federal court’s finding did not constitute res judicata, and granted WMS’s motion to vacate the default judgment, because Obeng-Amponsah did not provide a proper proof of service.
On June 26, 2007, WMS moved for a judgment on the pleadings. WMS argued that all of the causes of action in Obeng-Amponsah’s complaint were time-barred. Obeng-Amponsah prepared a memorandum of points and authorities in opposition to WMS’s motion; however, the superior court clerk refused to accept the documents for filing. On August 9, 2007, the superior court granted WMS’s motion for a judgment on the pleadings, without leave to amend.
On August 24, 2007, Obeng-Amponsah moved the court to reconsider its ruling on WMS’s motion. Obeng-Amponsah argued that his causes of action were not time-barred. On September 18, 2007, the trial court denied Obeng-Amponsah’s motion for reconsideration.
On September 27, 2007, Obeng-Amponsah moved the trial court to set aside the dismissal of his complaint. Obeng-Amponsah argued that the dismissal should be set aside because he was unable to file his opposition memorandum to WMS’s motion for a judgment on the pleadings. The court denied Obeng-Amponsah’s motion.
DISCUSSION
A. MOTION TO STRIKE WMS’S ANSWER
Obeng-Amponsah contends the trial court erred by denying his motion to strike WMS’s answer as untimely because (1) the federal court’s determination that service of the complaint and summons was proper constituted collateral estoppel; (2) service of the complaint and summons by FedEx was proper; (3) refusal to recognize the federal court’s findings violated the fifth and fourteenth amendments to the United States Constitution. We disagree.
Obeng-Amponsah refers to the principle of res judicata, rather than collateral estoppel; however, we infer from his argument that he is intending to assert the theory of collateral estoppel.
1. COLLATERAL ESTOPPEL
“The trial court’s application of the doctrine of collateral estoppel or issue preclusion is a question of law subject to de novo review. [Citation.]” (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507 (Johnson).)
“‘Collateral estoppel, or issue preclusion, “precludes relitigation of issues argued and decided in prior proceedings.”’ [Citation.]” (Johnson, supra, 166 Cal.App.4th at p. 1507, fn. omitted.) However, collateral estoppel typically is not applied when the party against whom preclusion is sought could not, as a matter of law, have obtained review of the first court’s judgment. (Kircher v. Putnam Funds Trust (2006) 547 U.S. 633, 647; Standefer v. U.S. (1980) 447 U.S. 10, 23.)
Except for certain civil rights cases, when a federal court remands a case to a state court due to lack of subject matter jurisdiction or a defect in the removal procedure, the federal court’s remand order is “not reviewable on appeal or otherwise.” (28 U.S.C.A. § 1447(d); Phoenix Container, L.P. v. Sokoloff (7th Cir. 2000) 235 F.3d 352, 354.) A federal court’s finding that a party’s motion for removal was untimely is exactly the type of removal defect that is barred from appellate review. (Things Remembered, Inc. v. Petrarca (1995) 516 U.S. 124, 128; Phoenix Container, at p. 354.)
In the instant case the federal court remanded the matter back to the state court because WMS’s motion for removal was untimely. Accordingly, the federal court’s judgment could not be reviewed by an appellate court. Therefore, the federal court’s findings should not be given preclusive effect by the state court. In sum, the trial court did not err by not applying the principle of collateral estoppel to the federal court’s findings.
2. SERVICE OF PROCESS
Obeng-Amponsah contends that the trial court erred by not striking WMS’s answer for being untimely, because delivery of the summons and complaint by FedEx constituted personal service of process.
“Section 436 gives the trial court discretion to strike out all or any part of a pleading not filed in conformity with the laws of this state. An order striking a pleading [or denying a motion to strike a pleading] (§ 435) is reviewed for abuse of discretion. [Citation.]” (CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.)
To timely file an answer, a defendant must file his or her answer to a complaint “within 30 days after [a] summons is served on him or her.” (§ 412.20, subd. (a)(3).) Accordingly, we must determine when WMS was served in order to analyze whether the trial court abused its discretion by denying Obeng-Amponsah’s motion to strike WMS’s answer as untimely.
Service by mail is complete when the required documents are deposited into the mail; however, 10 days are added to the defendant’s response deadline when the documents are mailed out-of-state. (§§ 415.40, 1013, subd. (a); Barefield v. Washington Mutual Bank (2006) 136 Cal.App.4th 299, 302-303 [discussing FedEx].) Service by personal service of process is complete at the time of delivery. (§ 415.10.)
a) FedEx Second-day Service
On May 8, 2006, Obeng-Amponsah purportedly sent a complaint and summons to Allemang, via FedEx second-day delivery.
(1) Service by Mail
Service by mail may be completed by FedEx if it is sent via overnight delivery. (§ 1013, subd. (d).) Obeng-Amponsah sent the package via second-day service, therefore it did not meet the requirements for service by mail because it was not sent overnight.
(2) Substituted Service
Another way to serve a person on behalf of a corporation is to leave a copy of the summons and complaint at the person’s office, with the person who is in charge of the office, and thereafter mail a copy of the documents to the person to be served. (§ 415.20, subd. (a).) A third way to accomplish service is to leave a copy of the summons and complaint at the dwelling of the person to be served or at his or her usual place of business. In that case, the documents must be left with a person who is at least 18 years old, and thereafter another copy of the documents must be mailed to the person to be served. (§ 415.20, subd. (b).)
The package delivered by FedEx was left at an address in Ann Arbor, Michigan, without a signature. Allemang found the FedEx package near his garage; therefore, we infer that a person over the age of 18 did not accept the documents. Accordingly, we conclude the documents sent on May 8, 2006, were not properly served. Consequently, based upon this attempted service, the 30-day deadline for WMS to file its answer was not triggered.
b) FedEx Overnight Service
(1) Service by Mail
On June 23, 2006, Obeng-Amponsah again sent the documents to Allemang. This time, the documents were sent via FedEx overnight delivery, and Obeng-Amponsah requested Allemang’s direct signature prior to the package being released. Allemang’s signature is allegedly on the FedEx package release form, dated June 26, 2006; however, Allemang declared that he was in Colorado on June 26, 2006, and therefore, could not have accepted a package in Michigan. On December 11, 2006, Obeng-Amponsah filed a proof of service claiming that he served his complaint and summons on WMS on June 26, 2006, by FedEx. Obeng-Amponsah attached Allemang’s alleged signature of receipt to the proof of service.
As noted ante, it is proper to serve a person or corporation by FedEx overnight delivery. (§§ 415.30, 415.40, 1013, subd. (d).) When serving a party by mail, the package of documents sent to the party must include an acknowledgement of receipt and a return envelope that is addressed to the sender with postage prepaid. (§ 415.30, subd. (a).) It does not appear from the record that such an acknowledgement was included in the documents sent to Allemang. Accordingly, the service was not properly completed by mail.
(2) Personal Service
Further, the service was not properly completed by personal service of process because (1) the proof of service was completed by the person who deposited the package of documents with FedEx, rather than by the FedEx delivery person who gave the documents to Allemang; (2) Allemang denies being in Michigan on June 26, 2006; and (3) without a declaration by the FedEx delivery person, there is no way to verify who received the package. (§§ 415.10, 417.10, subd. (a).) Proof of service allows a court to determine if service has actually been made. (Oats v. Oats (1983) 148 Cal.App.3d 416, 420.) Accordingly, considering (1) Allemang’s denial that he received the package from the FedEx delivery person; and (2) the lack of a proper proof of service, a court could not reasonably determine that WMS was properly served.
(3) Written Admission
In order to correct the defect, on December 11, 2006, Obeng-Amponsah filed an amended proof of service which included a document from FedEx reflecting Allemang’s signature, as well as a delivery date of June 26, 2006. A proof of service is sufficient, if the party provides a written admission that he or she received the served documents. (§§ 417.20, subd. (d).) The letter from FedEx shows that a package was delivered to Allemang; however, the contents of the package were not disclosed in the letter. Further, the letter is from FedEx, not Allemang, and therefore it would not be a “written admission of the party.” (§ 417.20, subd. (d).) Additionally, Allemang denies signing the FedEx package release form. In sum, the proof of service filed on December 11, 2006, was insufficient.
c) USPS Express Mail
(1) Service by Mail
On December 15, 2006, Obeng-Amponsah sent a copy of the summons, complaint, amended statement of damages, and request for entry of default to Allemang, via USPS Second-day Express Mail. Obeng-Amponsah requested a return receipt, which was signed by Allemang on December 18, 2006.
“A summons may be served on a person outside this state... by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt.” (§ 415.40.) “‘A successful service by mail requires strict compliance with the statute.’ [Citation.]” (Silver v. McNamee (1999) 69 Cal.App.4th 269, 279.) Obeng-Amponsah sent the documents via express mail, not first-class mail. Accordingly, the service of process did not meet the requirements for out-of-state service by mail. (§ 415.40.)
Additionally, it does not appear that Obeng-Amponsah sent an acknowledgement or a preaddressed, prestamped return envelope with the complaint and summons; therefore, the service did not comply with the general service by mail statute. (§§ 415.30, subd. (a), 1013, subd. (d).)
d) Actual Notice
In a declaration, Allemang admitted receiving (1) the first FedEx package on May 11, 2007; (2) the second FedEx package on approximately July 3, 2006; and (3) the USPS Express Mail package on December 18, 2006.
Actual notice of a pending suit is not sufficient to uphold service of process when there has been a failure to comply with the statutory requirements for service. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414-415; In re Jorge G. (2008) 164 Cal.App.4th 125, 134.) Accordingly, we cannot conclude that the 30-day deadline to respond to Obeng-Amponsah’s complaint was triggered when Allemang received the documents, because, as concluded ante, the three attempts to serve Allemang were defective.
e) Trial Court’s Discretion
WMS did not file an untimely answer on January 25, 2007, because Obeng-Amponsah did not properly serve WMS. (See §§ 410.50, 1014 [general appearance is made when answer is filed].) Accordingly, the trial court did not abuse its discretion by denying Obeng-Amponsah’s motion to strike WMS’s answer.
3. DUE PROCESS
Obeng-Amponsah contends that the superior court’s refusal to accept the rulings of the federal court violated his substantive and procedural rights to due process pursuant to the United States Constitution. Further, Obeng-Amponsah asserts that the Federal Rules of Civil Procedure should have been applied when determining whether WMS’s answer was timely filed.
Obeng-Amponsah’s argument concerning the superior court’s refusal to accept the rulings of the federal court is essentially a repeat of his contention regarding collateral estoppel. (See Mooney v. Caspari (2006) 138 Cal.App.4th 704, 720 [discussing due process and collateral estoppel].) We have already concluded ante, that the trial court did not err by not applying the doctrine of collateral estoppel.
Next, Obeng-Amponsah’s contention concerning the Federal Rules of Civil Procedure is unpersuasive. Obeng-Amponsah contends that Federal Rules of Civil Procedure, rule 81(c), which provides the procedure for removed actions, controlled the time in which WMS was required to file its answer. We note that Federal Rules of Civil Procedure, rule 81(c)(1), applies to cases after they have been removed from a state court. The federal court denied WMS’s motion for removal. Accordingly, we find Obeng-Amponsah’s contention unpersuasive because the matter was not ordered removed.
B. MOTION TO SET ASIDE DEFAULT OF WMS
Obeng-Amponsah contends the trial court erred by granting WMS’s motion to set aside the default judgment against WMS (§ 473, subd. (b)), because (1) evidence does not support a finding that the default was entered due to WMS’s mistake, inadvertence, surprise, or excusable neglect; (2) WMS did not have an attorney at the time the default was entered; (3) WMS forfeited its right to present these issues by failing to raise them in the motion for removal; and (4) WMS misrepresented facts. We disagree.
A trial court’s decision to set aside a default judgment “is entitled to the usual appellate deference: Its discretionary determinations will not be reversed in the absence of a clear showing of abuse [citations], and factual inferences drawn by it are presumed correct [citation].” (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139-1140.)
1. EXCUSE
A trial court may set aside a default judgment if the party seeking relief shows that the judgment was entered “against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) However, contrary to Obeng-Amponsah’s position, WMS did not argue that the default should be set aside due to mistake or excusable neglect, rather, WMS asserted that the default should be set aside because of Obeng-Amponsah’s failure to establish personal jurisdiction over WMS. Accordingly, WMS’s motion was based on section 473, subdivision (d), which provides that a court may “set aside any void judgment or order.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.)
The trial court vacated WMS’s default because it concluded that the default was “improvidently entered without proof of proper service on an out of state corporation.” As concluded ante, Obeng-Amponsah did not properly serve WMS with the complaint. Accordingly, the trial court did not abuse its discretion by setting aside the default judgment due to improper service. (See Clark v. Oyharzabal (1900) 129 Cal. 328, 329.)
2. ATTORNEY
Obeng-Amponsah contends the trial court abused its discretion by finding that WMS should be relieved from default due to its attorney’s errors because, Obeng-Amponsah contends, WMS did not have an attorney at the time the default was entered. (§ 473, subd. (b).)
As noted ante, the trial court did not vacate the default due to an excusable mistake on the part of WMS or its attorney. Rather, the trial court vacated the default judgment because it was “improvidently entered without proof of proper service on an out of state corporation.” Accordingly, Obeng-Amponsah’s argument is unpersuasive because it does not relate to the trial court’s reasons for vacating the default judgment.
3. FORFEITURE
Obeng-Amponsah contends the trial court erred by vacating the default judgment, because WMS forfeited its opportunity to challenge the service of process by not raising the service-related issues in its motion for removal.
“The forfeiture doctrine is a ‘well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court. [Citation.]’ [Citations.] Strong policy reasons support this rule: ‘It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]’ [Citation.]” (People v. Stowell (2003) 31 Cal.4th 1107, 1114; see also Doers v. Golden Gate Bridge Dist. (1979) 23 Cal.3d 180, 186.) In other words, forfeiture is a principle of appellate procedure. Accordingly, the trial court did not abuse its discretion by concluding that Obeng-Amponsah did not properly serve WMS, despite WMS’s failure to raise the issue in its motion for removal, because the principle of forfeiture does not function in the trial court in the same manner it does in the appellate court.
4. MISREPRESENTATION OF FACTS
Obeng-Amponsah contends the trial court abused its discretion by granting WMS’s motion to set aside the default, because WMS misrepresented facts to the trial court.
The trial court did not abuse its discretion by believing the evidence provided by WMS. As discussed ante, the record supports the conclusion that Obeng-Amponsah did not properly serve WMS. Accordingly, the trial court drew a reasonable conclusion from the evidence presented that WMS did not receive proper service of the summons and complaint. (See Shapiro v. Clark, supra, 164 Cal.App.4th at pp. 1139-1140 [trial court’s factual inferences are presumed to be correct]; Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 623 [when evidence conflicts, a reviewing court does not substitute its views for those of the trial court].)
C. JUDGMENT ON THE PLEADINGS
Obeng-Amponsah contends the trial court erred by granting WMS’s motion for a judgment on the pleadings, because (1) his actions are not time-barred, and (2) he was denied due process because he was not allowed to file his opposition paperwork. We disagree.
WMS, in its motion for a judgment on the pleadings, argued that all of Obeng-Amponsah’s claims were time-barred. The trial court granted the motion, without leave to amend.
“On appeal from a judgment of dismissal following an order sustaining a demurrer without leave to amend, we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. [Citation.] We assume the truth of all material facts properly pleaded, as well as facts that may be implied or inferred from those expressly alleged. [Citation.]” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 742.)
1. STATUTE OF LIMITATIONS
On May 4, 2006, Obeng-Amponsah filed a complaint against WMS for (1) promissory fraud, occurring at the mediation sessions between April 12 and May 22, 2000; (2) negligence, occurring when WMS owned the property between October 3, 2000, and May 2, 2002; (3) negligent damage to real property, occurring between October 3, 2000, and May 2, 2002; (4) fraud and concealment of known facts, occurring between December 1999 and May 2, 2002; (5) breach of a written contract, occurring between October 3, 2000, and May 2, 2002; and (6) fraud, occurring between May 12, 1999, and March 27, 2006.
a) Promissory Fraud
Section 338, subdivision (d), sets the statute of limitations for a promissory fraud action at three years and dictates that a cause of action for fraud does not accrue until the injured party becomes aware of the facts constituting the fraud. (Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 35.) Obeng-Amponsah claimed that he became aware of the alleged promissory fraud during the foreclosure and subsequent escrow, which occurred between April 2000 and May 2, 2002. Obeng-Amponsah filed his complaint on May 4, 2006. Accordingly, Obeng-Amponsah’s claim is time-barred, because it was filed more than three years after he became aware of the facts constituting the fraud.
b) Negligence
Second, Obeng-Amponsah’s claim of negligence relates to injuries to himself and the residence. The statute of limitations for negligent injury to property is three years. (§ 338, subd. (b).) The statute of limitations for negligent injury to a person is two years. (§ 335.1.) Obeng-Amponsah filed his complaint on May 4, 2006. Obeng-Amponsah learned of the damage to the residence while the residence was in escrow, and escrow closed on May 2, 2002. Obeng-Amponsah was injured on or about March 18, 2001. Moreover, a trial court minute order dated May 2, 2002, notes that Obeng-Amponsah was advised, in 2002, to bring an action for damages to the residence. Accordingly, Obeng-Amponsah’s negligence claims are time-barred because the complaint was filed approximately four years after he became aware of the damage to the residence, and five years after he was personally injured.
c) Fraudulent Concealment
Third, Obeng-Amponsah alleged that WMS did not allow him to inspect the residence pursuant to the residential purchase agreement. Obeng-Amponsah claimed that WMS denied him access to the residence in order to fraudulently conceal the damage to the residence.
“The doctrine of fraudulent concealment, which is judicially created [citations], limits the typical statute of limitations. ‘[T]he defendant’s fraud in concealing a cause of action against him tolls the applicable statute of limitations....’ [Citations.] In articulating the doctrine, the courts have had as their purpose to disarm a defendant who, by his own deception, has caused a claim to become stale and a plaintiff dilatory. [Citations.]” (Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 533.)
The doctrine of fraudulent concealment is not applicable in this case because Obeng-Amponsah alleges that he became aware of damage to the residence in April 2001, and that he sent photographs of the external damages to the court and WMS from April 2001 to May 2002. On May 2, 2002, Obeng-Amponsah took possession of the residence, and was able to examine it for internal damage. Accordingly, Obeng-Amponsah was aware of the causes of actions listed in his complaint as of May 2, 2002—WMS did not fraudulently attempt to deceive Obeng-Amponsah until his claim became time-barred.
d) Breach of Contract
Fourth, Obeng-Amponsah alleged that WMS breached its written residential purchase agreement with him by not maintaining the residence. Obeng-Amponsah alleged that the breach occurred between October 3, 2000, and May 2, 2002. The statute of limitations for breach of a written contract is four years. (§ 337.) Obeng-Amponsah filed his complaint on May 4, 2006. Accordingly, the claim is time-barred, because it was made two days late.
e) Fraud
Obeng-Amponsah’s final allegation was that WMS fraudulently represented that he did not make his mortgage payments after the purported loan modification. Obeng-Amponsah alleged that WMS continued its fraudulent portrayal of his payment history from May 1999 through March 27, 2006. As noted ante, claims of fraud must be brought within three years. (§ 338, subd. (d).) The three years begins to accrue when the injured party becomes aware of the facts constituting the fraud. (Brandon G. v. Gray, supra,111 Cal.App.4th at p. 35.) Obeng-Amponsah claims that he became aware of WMS’s alleged fraud in May 1999, when WMS began the foreclosure proceedings on the property. Accordingly, Obeng-Amponsah’s claim is time-barred because it was made in 2006—more than three years after he became aware of the facts constituting the fraud.
f) Stay
Obeng-Amponsah asserts that his actions are not time-barred because the trial court ordered two stays, which tolled the statutes of limitation. Obeng-Amponsah asserts that the trial court ordered stays in March 2000, in case Nos. RCV035235 and RCV042904, which tolled the statutes of limitation in the instant case, which is case No. RCV095034. The stays issued by the trial court were (1) issued six years before the complaint was filed in the instant case, and (2) were not ordered as part of the instant case. Accordingly, we are not persuaded that the stays affected the tolling of the statutes of limitation in the current case.
g) Conclusion
In sum, all of Obeng-Amponsah’s claims are time-barred. Therefore, the trial court did not err by entering a judgment on the pleadings in favor of WMS. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1204 [“[A] trial court does not err in sustaining a demurrer without leave to amend where the complaint discloses on its face that the action is barred by the statute of limitations.”].)
At oral argument, Obeng-Amponsah asserted that his claims were timely because (1) the settlement agreement with WMS did not have force and effect until it was approved by the trial court, and (2) he prevailed in a different lawsuit. These contentions were not raised in Obeng-Amponsah’s appellate briefs. Accordingly, we do not discuss them in this opinion.
2. OPPOSITION PAPERS
a) Procedural History
On June 26, 2007, WMS filed its motion for a judgment on the pleadings. On July 9, 2007, Obeng-Amponsah filed notice that he was appealing from the trial court’s prior order setting aside WMS’s default. On July 17, 2007, Obeng-Amponsah filed an ex parte motion to stay all proceedings while the appeal was pending. On July 20, 2007, the court held a hearing on Obeng-Amponsah’s motion. The court denied Obeng-Amponsah’s motion to stay the proceedings based upon its conclusion that an order setting aside a default is not an appealable order.
Also at the hearing, Obeng-Amponsah made an oral motion to extend the time to file his opposition to WMS’s motion for a judgment on the pleadings, which was scheduled to be heard on July 30, 2007. The trial court denied Obeng-Amponsah’s request based upon its finding that “there [was] no good cause because [Obeng-Amponsah] filed an appeal without a stay having been issued.”
On July 23, 2007, the trial court clerk refused to accept Obeng-Amponsah’s opposition paperwork for filing, because the opposition was late.
b) Discussion
Obeng-Amponsah contends the trial court violated his due process rights by ordering a judgment on the pleadings in favor of WMS, because the trial court clerk did not allow Obeng-Amponsah to file his opposition to WMS’s motion before the court ruled on the motion.
“The central purpose of procedural due process is to provide affected parties with the right ‘to be heard at a meaningful time and in a meaningful manner.’ [Citation.]” (Rodriguez v. Department of Real Estate (1996) 51 Cal.App.4th 1289, 1296.) “‘What must be afforded is a “‘reasonable opportunity’ to be heard. [Citations.]”’ [Citation.]” (Id. at p. 1297.)
Papers opposing a motion for a judgment on the pleadings must be filed “at least nine court days” before the scheduled hearing. (§ 1005, subd. (b).) A reply to the opposition must be filed “at least five court days before the [scheduled] hearing.” (Ibid.) The filing rules provide each party a reasonable opportunity to be heard at a meaningful time and in a meaningful manner. If Obeng-Amponsah were allowed to file his opposition paper work on July 23, 2007, which was five court days before the scheduled hearing, then WMS would have been denied its due process right to file a reply to the opposition. In other words, Obeng-Amponsah was afforded due process by the opportunity to file opposition paperwork at least nine days before the hearing. The fact that Obeng-Amponsah chose not to take advantage of the process afforded to him does not amount to a constitutional violation by the trial court.
Moreover, we note that Obeng-Amponsah attended the hearing for the motion for a judgment on the pleadings, and he was allowed to orally present his opposition to the motion. Accordingly, we conclude that the trial court did not violate Obeng-Amponsah’s rights to due process.
D. MOTION TO SET ASIDE THE DISMISSAL
1. FACTS
On September 19, 2007, the trial court entered its order dismissing Obeng-Amponsah’s case with prejudice.
On September 27, 2007, Obeng-Amponsah filed a motion to set aside the dismissal. Obeng-Amponsah argued that the judgment on the pleadings should be set aside because, when the hearing on the motion for a judgment on the pleadings was continued, he did not attempt to refile the opposition paperwork that had been rejected as untimely. Obeng-Amponsah asserted that the trial court was required to grant his motion to set aside the order, because the dismissal order was entered due to Obeng-Amponsah’s mistake, inadvertence, surprise or neglect.
The trial court remarked that the basis for Obeng-Amponsah’s motion for reconsideration was “that he did not take advantage of the opportunity presented to him to make a written motion to the court in order to be allowed to file a late opposition.” The court found that there was “no justification” for Obeng-Amponsah’s failure to file a written opposition, and that despite the failure to file paperwork, the trial court allowed Obeng-Amponsah to orally argue his opposition at the hearing on the motion.
The trial court concluded that Obeng-Amponsah was not entitled to mandatory relief, which is applicable when an error is due to an attorney’s inadvertence or mistake. Rather, the trial court found that Obeng-Amponsah could be entitled to discretionary relief. Obeng-Amponsah argued that an in propria persona litigant should not be treated any differently than a litigant who is represented by legal counsel, and therefore, if an order was entered due to his mistake, then mandatory relief should be granted. The trial court denied Obeng-Amponsah’s motion.
2. DISCUSSION
Obeng-Amponsah contends the trial court abused its discretion by denying his motion to set aside the order granting WMS’s motion for a judgment on the pleadings, because the order was entered due to the mistake, inadvertence, surprise, or neglect of Obeng-Amponsah. (§ 473, subd. (b).) Additionally, Obeng-Amponsah asserts that he should have been entitled to mandatory relief as an in propria persona litigant, rather than discretionary relief. We disagree.
A trial court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) A trial court must relieve a party of a dismissal entered against him if the motion to set aside is “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect... unless the court finds that the... dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473, subd. (b).)
We will assume, without deciding, that Obeng-Amponsah is correct that an in propria persona litigant should not be treated differently than a litigant who is represented by counsel, and therefore, we will review this issue under the umbrella of the mandatory relief provision. We review the trial court’s ruling for an abuse of discretion. (Hu v. Fang (2002) 104 Cal.App.4th 61, 64.)
The trial court concluded that Obeng-Amponsah’s failure to file the appropriate paperwork was unjustified. Obeng-Amponsah argued that he was “surprise[d]” because his computer was attacked by a virus, which made it impossible for him to access legal resources and draft his opposition to the motion. If Obeng-Amponsah’s computer was not functioning properly, then he could have used a public law library to draft his opposition. Further, if Obeng-Amponsah’s opposition paperwork was ready five days prior to the original hearing, then it should also have been ready prior to the continued hearing date. The trial court was reasonable in concluding that Obeng-Amponsah’s excuse did not qualify as “mistake, inadvertence, surprise, or neglect.” Accordingly, we conclude the trial court did not err.
E. MOTION FOR RECONSIDERATION
1. FACTS
On August 24, 2007, Obeng-Amponsah moved the trial court to reconsider its order granting a judgment on the pleadings in favor of WMS. In his motion, Obeng-Amponsah argued that the motion for reconsideration should be granted because (1) his opposition paperwork had not been presented at the hearing on the motion for a judgment on the pleadings, because the court did not grant him a filing extension; and (2) his claims were not time-barred, because the trial court had previously ordered a stay in the matter.
The trial court found that the motion for reconsideration was “little more than a restatement... of arguments that were previously presented to the Court at” the hearing on the motion for a judgment on the pleadings. Further, the court commented that it did not “see or read anything that would constitute newly discovered facts or evidence or any new developments in the law that have arisen since the hearing on the earlier motion.” The trial court denied the motion for reconsideration.
2. DISCUSSION
Obeng-Amponsah contends the trial court erred by denying his motion to reconsider the order regarding the judgment on the pleadings, because new and different facts were presented. We disagree.
After a trial court has issued an order, any party affected by the order may move the court to reconsider the matter and modify, amend or revoke the prior order “based upon new or different facts, circumstances, or law.” (§ 1008, subd. (a).) “A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. [Citation.] A trial court’s ruling on a motion for reconsideration is reviewed under the abuse of discretion standard. [Citation.]” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
First, the opposition paperwork was the same paperwork that Obeng-Amponsah requested to untimely file at the prior hearing. Second, the stay to which Obeng-Amponsah referred was granted in a different case in March 2000. The complaint in the instant case was filed in May 2006. Accordingly, the stay in the prior case was not a new or different fact upon which the trial court could reasonably grant the motion for reconsideration. Consequently, we conclude the trial court did not err by denying the motion for reconsideration.
DISPOSITION
The judgment is affirmed. In the interests of justice, each party is to bear its own costs on appeal.
We concur: RICHLI, Acting P. J., GAUT J.