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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

v.

WELLS FARGO BANK N.A.,

Defendant and Respondent.

 A136361

 (Alameda County

 Super. Ct. No. HG11601966)

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.‖

 

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 All further statutory references are to the Civil Code unless otherwise indicated.
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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 

 

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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 

 

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 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. 

 

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 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.