Madhok v. Fidelity National Title Company CA1/3 ( 2021 )

Filed 10/12/21 Madhok v. Fidelity National Title Company CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
DEVINDER SINGH MADHOK,
Plaintiff and Appellant, A162163
v. (Alameda County
FIDELITY NATIONAL TITLE Super. Ct. No. HG19042274)
COMPANY,
Defendant and Respondent.
Devinder Madhok appeals in propria persona from a judgment on the
pleadings in favor of Fidelity National Title Company (Fidelity), concluding
Madhok’s complaint was barred by the statute of limitations. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 5, 2017, Madhok filed a small claims complaint against
Fidelity for its failure to identify an outstanding lien on his property.
Madhok sought $10,000.00 in damages for, among other things, loss of an
existing contract to sell the property. The court entered a judgment in favor
of Fidelity.
In November 2019, Madhok filed a superior court complaint against
Fidelity. He claimed Fidelity breached the covenant of good faith and fair
dealing by failing to deliver an accurate title report. This failure, Madhok
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alleged, resulted in damages that Fidelity refused to cover under his title
policy.
Fidelity moved for judgment on the pleadings, arguing Madhok’s claims
were barred under the two-year statute of limitations for contract disputes.
(See Code Civ. Proc.,1 § 339, subd. (1).) Madhok argued the statute of
limitations was equitably tolled during the pendency of his small claims
action. In a November 2020 tentative ruling, the trial court rejected
Madhok’s argument and dismissed his complaint with prejudice. After
Madhok did not contest the ruling, the trial court adopted its tentative
decision.
Madhok filed a motion to “set aside the Dismissal,” arguing he was
deprived of an opportunity to contest the tentative decision. After a hearing
considering Madhok’s arguments, the trial court denied the motion and
stated “the Court affirms its tentative ruling and grants Defendant’s motion
for judgment on the pleadings, for the same reasons set forth in the Court’s
prior” November 2020 order.
DISCUSSION
Madhok argues the trial court erroneously granted Fidelity judgment
on the pleadings because he timely filed his complaint.2 We disagree.
1 Undesignated statutory references are to the Code of Civil Procedure.
2 The notice of appeal filed by Madhok only appeals from an “order after
judgment under Code of Civil Procedure, § 904.1 (a)(2)” (italics added)—
presumably the denial of his “motion to set aside the Dismissal”—and did not
appear to appeal from the judgment. Although appeals are “ ‘ “limited in
scope to the notice of appeal and the judgment or order appealed from” ’ ” (In
re J.F. (2019) 39 Cal.App.5th 70, 75), it is reasonably clear that Madhok was
trying to challenge the merits of the judgment (In re Joshua S. (2007)
41 Cal.4th 261, 272 [construing notices of appeal liberally “ ‘to protect the
right of appeal if it is reasonably clear what [the] appellant was trying to
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I. Standard of Review and Legal Background
We review de novo a trial court’s ruling on a motion for judgment on
the pleadings—a motion that tests the allegations of a complaint,
“ ‘supplemented by any matter of which the trial court takes judicial notice,
to determine whether plaintiff . . . has stated a cause of action.’ ” (Nicholson
v. Fazeli (2003) 113 Cal.App.4th 1091, 1098.) Actions based on a title
insurance policy must be filed two years from “the discovery of the loss or
damage suffered by the aggrieved party.” (§ 339, subd. (1).) Where it
appears from the face of a complaint that a cause of action is barred by the
applicable statute of limitations, the plaintiff must plead facts that
demonstrate “an excuse, tolling, or some other basis for avoiding the
statutory bar.” (Ponderosa Homes, Inc. v. City of San Ramon (1994)
23 Cal.App.4th 1761, 1768.)
II. Analysis
Madhok does not renew the equitable tolling arguments that he made
in the trial court. Instead, Madhok now insists he timely filed his November
2019 complaint because he discovered the damage under his title insurance
policy in February 2019—the date when he consulted different attorneys
about Fidelity’s contractual obligations—and not April 2017—the date that
Fidelity rejected Madhok’s claim. Madhok, however, forfeited this argument
appeal from, and where the respondent could not possibly have been misled
or prejudiced’ ”]; Cal. Rules of Court, rule 8.100, (a)(2)). Indeed, the trial
court’s ruling on Madhok’s motion to set aside the dismissal—stating that it
“grants Defendant’s motion for judgment on the pleadings”—likely confused
Madhok over which order to appeal. Further, Fidelity does not argue that it
was prejudiced or misled by Madhok’s notice of appeal. We therefore exercise
jurisdiction over the trial court’s order granting judgment on the pleadings.
(See Joshua S., at p. 272.)
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by failing to raise it below. (See Honig v. San Francisco Planning Dept.
(2005) 127 Cal.App.4th 520, 530.)
Even if Madhok had preserved this argument, it is meritless. Madhok’s
ignorance of the legal theories underlying his cause of action against Fidelity
is irrelevant for statute of limitations purposes. (Gutierrez v. Mofid (1985)
39 Cal.3d 892, 897–898 [“the fact that an attorney has not yet advised him
does not postpone commencement of the limitations period”].) A “limitations
period dependent on discovery of the cause of action begins to run no later
than the time the plaintiff learns, or should have learned, the facts essential
to his claim.” (Ibid.) Here, Madhok filed his title insurance claim with
Fidelity on or about April 2, 2017. Five days later, on April 7, 2017, Fidelity
stated that it fulfilled its contractual obligations to Madhok and denied his
claim. On that date, Madhok knew all the essential facts of his claim for loss
or damages, and the two-year statute of limitations began to run, rendering
his November 2019 complaint untimely. (See ibid.) Neither of Madhok’s
cited authorities, Smeaton v. Fidelity Nat. Title (1999) 72 Cal.App.4th 1000,
and Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, alter this conclusion.
(Smeaton, at p. 1004 [concluding the statute of limitations did not begin to
run on claims under an insurance policy where the insurer had not yet issued
the policy]; Jolly, at p. 1114 [statute of limitations in personal injury case, not
contract, begins when “plaintiff suspects, or should suspect, that she has been
wronged”].)
Madhok also claims he properly filed his complaint via fax on April 2,
2019, but the court clerk failed to properly process the document. (Cal. Rules
of Court, rule 2.304 (a)-(b) [governing filing by fax].) He then refiled his
complaint on November 7, 2019, after court clerks notified him that they
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could not locate the complaint. Thus, he argues, he timely filed the complaint
in April 2019.
True, parties may move for filing a document nunc pro tunc if there is
a clerical error in failing to process a faxed document or an unknown error in
transmitting the document. (Cal. Rules of Court, rule 2.304 (d).) But that
motion must be accompanied by a transmission record and a sworn
declaration affirming that the document was transmitted to the court,
identifying the fax number to which it was sent, and affirming that the
sending fax machine reported no transmittal error. (Cal. Rules of Court, rule
2.304 (d).) Although Madhok claims he provided proof of faxed filing to the
trial court, the record does not contain any such proof. Madhok’s complaint is
therefore barred by the statute of limitations.
DISPOSITION
The judgment is affirmed.
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_________________________
Chou, J.*
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Burns, J.
A162163
*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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