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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

v.

FIDELITY NATIONAL TITLE 

COMPANY,

Defendant and Respondent.

 A162163

 (Alameda County

 Super. Ct. No. HG19042274)

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.