Filed 10/7/13 Sandhu v. Wells Fargo Bank CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
MANJIT SANDHU et al.,
Plaintiffs and Appellants,
A136361
v.
WELLS FARGO BANK N.A., (Alameda County
Super. Ct. No. HG11601966)
Defendant and Respondent.
INTRODUCTION
Plaintiffs Manjit Sandhu and Satinder Dhillon appeal from a judgment entered in
favor of defendant Wells Fargo Bank after the trial court granted the bank‘s ex parte
application to dismiss their lawsuit, following demurrers to plaintiffs‘ original and first
amended complaints and denial of a motion to file a second amended complaint. We
conclude the trial court properly dismissed the action, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, plaintiffs obtained a loan from Wells Fargo to buy a home in Hayward,
California. They defaulted on the loan, and in 2011, the property was sold to Federal
National Mortgage Association. Plaintiffs filed suit shortly thereafter, naming Wells
Fargo and the Mortgage Association as defendants. The trial court sustained defendants‘
demurrer to the complaint, and granted plaintiffs leave to amend. The court noted at the
outset of its order that plaintiffs had not opposed the court‘s tentative ruling.
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Plaintiffs filed a first amended complaint, naming only Wells Fargo as defendant
and asserting five causes of action: rescission pursuant to Civil Code section 1632,1
rescission pursuant to sections 1550, 1567, 1568, and 1689, declaratory relief, quiet title,
and rescission pursuant to the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et
seq.). These claims were based on plaintiffs‘ assertion that nearly five years prior, Wells
Fargo tricked them into signing loan documents with an interest rate to which they did
not agree. Wells Fargo interposed another demurrer.
On May 29, 2012, the trial court heard and sustained the bank‘s demurrer to the
first amended complaint, again noting plaintiffs had not contested the court‘s tentative
ruling. The court‘s written order enumerated the specific reasons for its ruling as to each
of the five causes of action. The court allowed plaintiffs leave to amend their second
cause of action (rescission pursuant to § 1691) and fourth cause of action (for quiet title),
and also provided specific instructions for amending the complaint.
With regard to the rescission claim, plaintiffs were granted leave to amend ―to
clearly allege (1) facts demonstrating that Plaintiffs are willing and able to repay the full
amount of the loan secured by the subject property, as required by Civil Code § 1691(b), ,
and (2) the required elements of a fraud claim with the required degree of particularity,
including who made the alleged misrepresentations, to whom, what they said or wrote,
and when. . . .‖ (Id.) The trial court also stated, ―[i]n amending, Plaintiffs may not base
this claim on any allegation that the Defendant failed to inform them that they did not
qualify for or could not afford the subject loan. . . . Nor may Plaintiffs base this claim on
Defendant‘s alleged failure to possess the subject promissory note . . . .‖ With regard to
the quiet title claim, plaintiffs were granted leave to amend ―to clearly allege (1) all the
elements of a Quiet Title Claim required by Code of Civil Procedure § 761.020; (2) that
Plaintiffs are currently willing and able to repay the full amount of the debt secured by
the subject property . . . ; and (3) facts demonstrating some legally cognizable basis for
determining that Plaintiffs‘ claim to the subject property is superior to that of Defendant.‖
1
All further statutory references are to the Civil Code unless otherwise indicated.
2
The trial court granted plaintiffs ―10 days to amend, running from service of
Notice of Entry of Order on Plaintiffs by Defendant‖ to file a second amended complaint
alleging ―two, and only two, causes of action, for Rescission and Quiet Title. . . .‖ The
trial court also stated, ―[t]his Order does not preclude Plaintiffs from filing a noticed
motion seeking further leave to amend to assert any other meritorious claims they believe
they may have.‖ The court‘s written order was served on the parties by the court clerk on
May 31, 2012. Wells Fargo served notice of entry of the order on June 26, 2012.
Accordingly, the 10-day deadline to amend was July 11, 2012, including the five-day
extension for mailing.
In the meantime, on June 7, 2012, plaintiffs filed a motion for leave to file a
second amended complaint with additional causes of action (for fraud, breach of contract,
rescission and restitution, and quiet title). On July 10, the trial court denied plaintiffs‘
motion to amend, again noting its tentative ruling had not been contested. The court
denied the motion ―without prejudice,‖ explaining it would ―not permit Plaintiffs to file a
Second Amended Complaint in the form attached to the moving papers.‖ The court also
again provided specific explanations as to the deficiencies of the claims, and instructions
as to what plaintiffs had to allege to state a viable claim. The court clerk served the
written order on the parties on July 13.
On July 20—more than a week after the deadline set by the court‘s demurrer order
for filing a second amended complaint and a week after the court denied plaintiffs‘
motion to file a more expansive second amended complaint than had been allowed by the
demurrer order—Wells Fargo filed an ex parte application for dismissal for failure to
timely file a second amended complaint. The bank served the application on plaintiffs‘
counsel the same day and also sent a letter stating the application would be heard July 24.
On July 23, three days after being notified of the ex parte application, and one day
before the scheduled hearing, plaintiffs filed a second motion for leave to file an
expansive second amended complaint, with a scheduled hearing date of September 20.
At the ex parte hearing the next day, July 24, the trial court granted Wells Fargo‘s
application and entered a judgment of dismissal. Despite notice, plaintiffs did not file
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opposition or appear at the hearing. A week later, on July 30, plaintiffs filed an ex parte
application to set aside the dismissal, which was denied.
DISCUSSION
Failure to Object
It is fundamental that a party cannot complain on appeal about rulings the party
had an opportunity to, but did not, oppose. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [―a
reviewing court ordinarily will not consider a challenge to a ruling if an objection could
have been but was not made in the trial court.‖]2; see also People v. Saunders (1993)
5 Cal.4th 580, 589–590.) Whether denominated ―waiver‖ or ―invited error,‖ a party
cannot remain silent in the trial court and later challenge a ruling that became the order or
judgment of the court without objection. (Mary M. v. City of Los Angeles (1991)
54 Cal.3d 202, 212 [―Under the doctrine of invited error, when a party by its own conduct
induces the commission of error, it may not claim on appeal that the judgment should be
reversed because of that error.‖]; see also K.C. Multimedia, Inc. v. Bank of America
Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 950 [―Ultimately, the
question here is not whether appellant invited error, but whether it forfeited its claim by
failing to object below. . . . See generally Eisenberg, et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2008) ¶ 8:245, p. 8–161 [discussing invited error
doctrine]; id. ¶ 8:249, p. 8–164 [discussing waiver] . . . because appellant failed to object,
it forfeited its procedural challenge.‖] (K.C. Multimedia).)
As we have recited, plaintiffs did not contest a single one of the tentative rulings
on the viability of the allegations of their various complaints—they did not contest the
tentative rulings sustaining the bank‘s demurrers to their original and first amended
complaints with leave to amend, and they did not contest the tentative ruling on their
motion to file a more expansive second amended complaint than the court had allowed in
sustaining the bank‘s demurrer. Accordingly, these un-objected to rulings duly became
2
Superseded by statute on another ground as stated in In re S.J. (2008)
167 Cal.App.4th 953, 962.
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the orders of the court. (Cal. Rules of Court, rule 3.1308(a)(2).)3 Since plaintiffs had the
opportunity to voice opposition, but failed to do so, they have waived any error in the
court‘s rulings. (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 212.)
As we have also recited, plaintiffs did not file any written opposition to, or appear
at the hearing on, the bank‘s ex parte application for dismissal of the action. They have
therefore also waived any challenge to the granting of the application and the entry of a
judgment of dismissal. (Rule 8.54(c) [―A failure to oppose a motion may be deemed a
consent to the granting of the motion.‖]; see also K.C. Multimedia, supra,
171 Cal.App.4th at p. 950.)
On the ground of waiver or invited error, alone, the judgment can and should be
affirmed.
The Judgment of Dismissal
Even had plaintiffs not waived their right to challenge the judgment of dismissal
on appeal, we would affirm it on the merits.
Plaintiffs contend the trial court erred because they were ―denied an opportunity to
amend their complaint‖ when the court dismissed the case while their second motion for
leave to file an expansive second amended complaint was pending. We disagree.
The trial court granted plaintiffs multiple opportunities to amend to plead viable
causes of action. Indeed, the court went out of its way to explain the shortcomings in
their pleadings and to specify exactly what they needed to allege to survive a demurrer.
In its order sustaining the bank‘s demurrer to plaintiff‘s first amended complaint, the
court allowed leave to amend as to two causes of action and further stated plaintiffs could
file a motion if they wanted to state additional claims. Instead of filing a second
amended complaint with the requisite allegations to support the two causes of action the
court had identified, plaintiffs filed a motion to file a greatly expanded proposed second
amended complaint. The court denied their motion. While the court‘s order indeed
stated the motion was denied ―without prejudice‖—the court explained it would not allow
3
All further rule references are to the California Rules of Court.
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a second amended complaint ―in the form attached to the moving papers.‖ By this time,
plaintiffs had proffered three iterations of their complaint to the trial court, and the court
had rejected each one.
Plaintiffs, in short, ignored the court‘s analyses of their claims and its clear
instructions as to what they needed to allege. The ―without prejudice‖ language in the
order denying their motion, which plaintiffs have taken out of context, was by no means
any guarantee they could file another motion if and when they might be so inclined.
Accordingly, the trial court did not error in granting the bank‘s ex parte application
to enter a judgment of dismissal in the absence of any operative pleading being on file by
the deadline imposed in the court‘s order sustaining the bank‘s demurrer to the first
amended complaint with leave to amend. The court had already given plaintiffs three
opportunities to file a sufficient complaint. It was not required to deny Wells Fargo‘s
procedurally proper ex parte application for entry of dismissal because plaintiffs had filed
yet another motion (at the eleventh hour) to file a verbose pleading that was not even set
for hearing for another two months.4 (Cf. Record v. Reason (1999) 73 Cal.App.4th 472,
486 [― ‗even if a good amendment is proposed in proper form, unwarranted delay in
presenting it may—of itself—be a valid reason for denial.‘ [Citation.]‖].)
DISPOSITION
The judgment is affirmed.
4
Plaintiffs‘ complaint that the ex parte application for dismissal was procedurally
improper is without merit. (Rule 3.1320(h) [―A motion to dismiss the entire action and for
entry of judgment after expiration of the time to amend following the sustaining of a
demurrer may be made by ex parte application to the court under Code of Civil Procedure
section 581(f)(2).‖].) Nor is there any merit to plaintiffs‘ complaint that Wells Fargo
acted ―surreptitiously‖ in bringing its ex parte application. On the contrary, the bank
complied with all the procedural requirements set forth in the Rules of Court, including
giving timely notice of its application. (Rule 3.1200 et seq.) Moreover, plaintiffs filed no
written opposition and did not appear at the noticed hearing. Accordingly, they are in no
position at this late date to make accusations about the bank‘s motive in seeking a
dismissal.
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Haerle, J.
Associate Justice of the Court of Appeal, First Appellate District, Division Two,
assigned by the Chief Justice pursuant to article VI, section VI of the California
Constitution.
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