Filed 8/18/22 Dhillon v. Kent CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge.

William Edwards Law and William Edwards for Plaintiff and Appellant.

Wild, Carter & Tipton and Patrick J. Gorman for Defendants and Respondents.

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INTRODUCTION

Plaintiff and appellant Randeep S. Dhillon (Dhillon) appeals from an order granting judgment on the pleadings, without leave to amend (subject order), in favor of defendants and respondents Margaret Kent (Kent) and R&M Kent Family Ltd. Partnership, a Texas limited partnership (R&M) (collectively, defendants Kent). Pursuant to the subject order, defendants Kent were dismissed from the litigation.[1] For reasons discussed herein, we conclude Dhillon’s appeal is limited to challenging the trial court’s refusal to grant him leave to amend his complaint. We affirm the subject order.

FACTUAL AND PROCEDURAL BACKGROUND

Dhillon begins his opening brief by stating his claim against defendants Kent “appears to have been the victim of its own legal and factual complexity. What should have been a simple claim sounding in fraud, became caught up in the multilayered framework of financing, trust deeds in first and second position, carry back notes, order of recordation, self-dealing and greed…. The [trial court], failing to connect the evolving factual claims with the underlying complaint’s initial allegations, granted [defendants Kent’s] motion for [judgment on the pleadings] on the eve of trial, without providing [Dhillon] the option to cure the acknowledged defect, thereby depriving [Dhillon’s] ability to litigate his meritorious claim,” italics added.

Dhillon is correct that the underlying procedural and background facts are convoluted. The record on appeal consists of more than 2,000 pages and includes paperwork for a variety of law and motion matters taken up by the trial court. Yet, Dhillon’s opening brief (consisting of only 13 substantive pages) contains relatively few citations to this voluminous record, and glosses over much of the factual and procedural history of the case. We do our best to assemble and organize the facts that are relevant to the appeal, or otherwise necessary for context.

In October of 2006, Dhillon and his spouse[2] purchased 153 acres of farmland located in Bakersfield, California (subject property) from R&M. R&M transferred title to the subject property to Dhillon by grant deed dated October 4, 2006, and recorded on October 27, 2006 (subject grant deed). Kent signed the subject grant deed in her capacity as president of Kent Management, Inc., general partner of R&M. The subject grant deed purports to contain a signature for Kent’s husband at the time, Robert Kent (Dr. Kent), now deceased, in his capacity as vice-president of Kent Management, Inc.

Dhillon purchased the subject property for $7.42 million. To finance the purchase, Dhillon obtained a loan from State Bank of India (SBI) in the amount of $2.16 million (original SBI loan), secured by a first position deed of trust against the subject property (original SBI deed of trust), and a seller-carry-back loan from R&M in the amount of $3.4 million (original R&M loan), secured by a second position deed of trust against the subject property (original R&M deed of trust). The remainder of the purchase price was paid in cash.

In November of 2007, Dhillon refinanced and restructured the loans. Specifically, Dhillon obtained a loan from SBI in the amount of $4,626,000 (SBI refinance loan). He used the loan proceeds to pay off the original SBI loan and pay down the outstanding principal balance of the original R&M loan by approximately $1.9 million. As part of the loan restructuring, Dhillon executed a new promissory note in favor of R&M for the remaining balance of $1.4 million (R&M refinance loan). The SBI refinance loan was secured by a first position deed of trust (SBI refinance deed of trust) and the R&M refinance loan was secured by a second deed of trust (R&M refinance deed of trust) on the subject property.[3]

On May 27, 2008, Dhillon granted SBI a third position deed of trust (JEI deed of trust) on the subject property to secure a $1 million revolving line of credit in favor of Jal Enterprises, Inc. (JEI loan).

On April 30, 2010, Dhillon executed a grant deed transferring title to the subject property to BlueGreenPista Enterprises, Inc. (BGP), an entity in which Dhillon had an

ownership interest.[4]

Dhillon had numerous loans with SBI. In 2011, Dhillon was delinquent on some or all of those loans. On October 26, 2011, Dhillon entered into a forbearance agreement with SBI concerning the SBI refinance loan and six other loans obtained by Dhillon or companies with which Dhillon was associated. Under the terms of the forbearance agreement, SBI agreed not to declare a default on the SBI refinance loan if specified payments were made.

A modification to the forbearance agreement (forbearance modification) dated April 23, 2013, was produced in the litigation by SBI. It recites that Dhillon defaulted under the terms of the forbearance agreement but that SBI agreed to extend the maturity date of the SBI refinance loan to June 25, 2013, to allow Dhillon time to pursue alternative financing to pay off all outstanding SBI loans. Dhillon alleges the forbearance modification was forged.

R&M eventually sold the R&M refinance loan to Joseph P. Romance. A declaration purportedly signed by Kent in other litigation and part of the record on appeal alleges the sale took place “[o]n or about July 16, 2013.”[5]

On December 11, 2014, SBI recorded a notice of default in connection with the SBI refinance deed of trust. On March 13, 2015, the trustee under the SBI refinance deed of trust and JEI deed of trust recorded two notices of an upcoming trustee sale of the subject property.[6] Each notice indicated the subject property would be sold at auction on April 13, 2015, to pay off associated indebtedness—i.e., $4,351,171.93 for the SBI refinance loan, and $695,073.48 for the JEI loan.

Thereafter, Dhillon and SBI entered into negotiations to avoid foreclosure of the subject property. On April 9, 2015, an agreement (final forbearance agreement) appeared to have been reached. In furtherance of the final forbearance agreement, Dhillon made a payment of $233,166.10, to SBI. Dhillon and SBI subsequently disagreed over the meaning of the final forbearance agreement.

On April 21, 2015, Dhillon filed his original verified complaint against SBI, Romance, defendants Kent, and Alliance Title. The complaint alleged causes of action to quiet title to the subject property (in connection with the R&M refinance deed of trust),[7] fraud in the inducement, declaratory relief, injunctive relief and cancellation of the R&M refinance deed of trust.[8]

On July 2, 2015, Dhillon brought an ex parte application for a temporary restraining order and order to show cause why a preliminary injunction should not issue to enjoin foreclosure of the subject property. The trial court denied Dhillon’s application.

On or about July 18, 2015, BGP filed for bankruptcy. On or about January 27, 2016, Dhillon’s attorney filed a NOTICE OF STAY OF PROCEEDINGS (notice of stay) indicating the matter was stayed due to the BGP bankruptcy filing. The notice of stay read, in part: “[BGP] is the true owner of the subject property regarding the said controversy involving [the present case] between the parties.”

On November 23, 2016, SBI obtained “relief from the automatic stay as to the Collateral … for the respective [SBI] Loans under the respective [SBI] Loan Documents.” In December of 2016, Romance purchased the SBI refinance loan promissory note and deed of trust.

On February 14, 2017, the subject property was sold at foreclosure to Romance in connection with Dhillon’s default on the SBI refinance loan. Romance credit bid $4 million to purchase the subject property and received a TRUSTEE’S DEED UPON SALE.

On June 18, 2018, Dhillon moved to file a first amended complaint “so that they may [among other things] adequately plead their allegations against any and all persons claiming any legal or equitable right, title, estate, lien, or interest in the [subject] property … adverse to [Dhillon’s] ….” Dhillon sought to add Chicago Title Insurance Company and potential DOE’s as defendants, and sought to add several additional causes of action to the complaint.[9] On July 25, 2018, the trial court denied Dhillon’s motion for leave to file a first amended complaint for failure to comply with California Rules of Court, rule 3.1324(b)(3), (4).[10] The record does not show Dhillon ever attempted to correct the deficiencies and renew the motion.

On February 19, 2019, SBI moved for sanctions against Dhillon pursuant to Code of Civil Procedure section 128.7.[11] On March 19, 2019, the trial court granted SBI’s motion. A formal order was entered on March 28, 2019, in which SBI was dismissed from the lawsuit without prejudice.

On June 11, 2019, Romance moved for sanctions against Dhillon pursuant to Code of Civil Procedure section 128.7.[12] On August 2, 2019, the trial court granted Romance’s motion. The court dismissed the complaint as to Romance with prejudice. A formal order to that effect was entered on August 14, 2019.

On February 20, 2020, less than three weeks before the March 9, 2020, trial date, defendants Kent filed a motion for judgment on the pleadings. The motion was denied without prejudice. In its order denying the motion, the trial court also vacated the trial date.

On March 6, 2020, defendants Kent again filed a motion for judgment on the pleadings (second MJOP) as to all causes of action in Dhillon’s complaint. The grounds for the second MJOP were that the First, Third and Fourth Causes of Action (i.e., to quiet title to the subject property, for declaratory relief, and for injunctive relief and cancelation of the R&M refinance deed of trust) were rendered “moot as previously adjudicated” by the trial court in connection with the motions for sanctions brought by Romance and SBI, and that the second cause of action fails to state facts sufficient to constitute a cause of action against defendants Kent. A hearing on defendants Kent’s second MJOP was scheduled for June 15, 2020.

In opposing the second MJOP, Dhillon contended, among other things, that he should be granted leave to amend his complaint. On June 12, 2020, just three days prior to the scheduled hearing on the second MJOP, Dhillon filed a motion for leave to amend his complaint. In his motion, Dhillon argued he “has discovered facts to support adding [an] additional cause of action to void the Grant Deed forged by … Kent ….”

On June 24, 2020, the trial court issued the subject order granting defendants Kent’s second MJOP without leave to amend, and dismissing defendants Kent from the litigation with prejudice. Notice of entry of the subject order was served July 2, 2020.

On July 13, 2020, Dhillon timely appealed.

DISCUSSION

I. Dhillon’s Appeal Of The Subject Order Is Limited To Challenging The Trial Court’s Refusal To Grant Dhillon Leave To Amend His Complaint.

On appeal, Dhillon does not argue his complaint was sufficient to withstand the motion for judgment on the pleadings. He makes no effort to demonstrate the sufficiency of his allegations in connection with any of the four causes of action asserted in his complaint. Instead, Dhillon’s appeal focuses on the trial court’s refusal to grant him leave to amend in ruling on the second MJOP.

Dhillon admits his counsel “essentially conceded the fact to the [trial] court that certain causes of action against [defendants Kent] were no longer appropriate” but that “the core issue of fraud against [defendants Kent] as remaining strongly relevant and supported by evidence.” Dhillon stated his counsel “advised the [trial] court the evidence involving fraud associated with the [subject grant deed] was unknown at the time of the initial filing.”

In his opening brief, Dhillon states, “In offering a plausible legal alternative to allow for [defendants Kent’s] [second MJOP] to succeed while allowing [Dhillon] to proceed to trial, [Dhillon’s] counsel raised his intent to file a ‘pared’ down, bare bones complaint and proceed with his meritorious claim before a jury.” Dhillon expressed “surprise centered around the additional grant of the [second MJOP] without leave to amend despite [Dhillon] providing a valid amendment to the complaint which would have cured any issues involving the causes of action and whether there was sufficient evidence to move the matter to trial.”

Thus, Dhillon is not challenging the fact that the motion for judgment on the pleadings was granted. Rather, he is challenging the fact it was granted without providing him leave to amend his complaint. Dhillon has forfeited any broader argument on appeal by not pursuing it before this court. “We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument … allows this court to treat the contentions as waived.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)

Accordingly, we limit our consideration of the appeal to a determination of whether the trial court erred in denying Dhillon leave to amend his complaint.

II. Standard Of Review.

Trial courts are vested with discretion to allow a party to amend his or her pleading “in furtherance of justice, and on any terms as may be proper.” (Code Civ. Proc., § 473, subd. (a)(1).) Consequently, the “[d]enial of leave to amend after granting a motion for judgment on the pleadings is reviewed for abuse of discretion.” (Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1448.)

“To show an abuse of discretion, the plaintiff has the burden of demonstrating that ‘there is a reasonable possibility the plaintiff could cure the defect with an amendment.’ ” (Foundation for Taxpayer & Consumer Rights v. Nextel Communications, Inc. (2006) 143 Cal.App.4th 131, 135 (Foundation for Taxpayer Rights).) “To meet the plaintiff’s burden …, the plaintiff must show how the complaint can be amended to state a cause of action.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386 (Careau).)

III. Standards For Granting Leave To Amend.

“Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party .…’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.] In [Estate of] Murphy[ (1978) 82 Cal.App.3d 304, 311],‘ … the proposed amendment opened up an entirely new field of inquiry without any satisfactory explanation as to why this major change in point of attack had not been made long before trial.’ (Ibid.) Under those circumstances, denial of leave to amend was appropriate.” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

“Generally, ‘the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: “including the conduct of the moving party and the belated presentation of the amendment. [Citation.] … The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court’s denial of the amendment. [Citation.]” [Citation.] “The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” ’ ” (Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097.) Moreover, “[a]n amendment that contradicts an admission in the original pleadings will ordinarily not be allowed.” (Astenius v. State of California (2005) 126 Cal.App.4th 472, 477 (Astenius).)

A party may be prejudiced by an amendment if, for example, it causes “a delay in the trial of the case, the loss of critical evidence, or added costs of trial preparation.” (Cal. Judges Benchbook: Civil Proceedings Before Trial (CJER 2021) Attacks on Pleadings, § 12.171, p. 1371.)

IV. The Trial Court Did Not Abuse Its Discretion In Denying Dhillon Leave To Amend.

Although Dhillon bears the burden of demonstrating there is a reasonable possibility he can amend his complaint to cure its defects (Adams v. Bank of America, N.A. (2020) 51 Cal.App.5th 666, 671), his briefing on appeal is relatively sparse in terms of discussing the basis upon which Dhillon could viably amend his complaint. The best demonstration of how Dhillon would seek to amend his complaint is the proposed amended complaint (proposed amendments) he filed just three days prior to the hearing on the second MJOP. Accordingly, we review Dhillon’s proposed amendments to determine whether the trial court’s denial of leave to amend was an abuse of discretion.

A. Proposed Amendments—Fraud in the Inducement (Allegations Of Fraud In Connection With Alleged Forgery Of Subject Grant Deed).

In his proposed cause of action for fraud in the inducement, Dhillon alleges, among other things, that Dr. Kent never knew of R&M’s sale of the subject property to Dhillon; Dr. Kent did not consent to the sale; and Dr. Kent’s signature on the subject grant deed, original R&M loan deed of trust,[13] and “all following documentation” was forged. Dhillon also alleges Kent knew that Dr. Kent’s signatures on these transaction documents were forged and that, by presenting the documents to Dhillon to consummate the sale transaction, Kent knowingly made a false representation to Dhillon. Dhillon further alleges he reasonably believed the signatures were genuine because the documents were notarized; reasonably relied on Kent’s false representations concerning the genuineness of Dr. Kent’s signatures in purchasing the subject property; and was “harmed in an amount to be determined at tr[ia]l ….”

Despite Dhillon’s contention he was unaware of the above alleged fraud at the time he filed his complaint, the allegations in his complaint demonstrate he was on notice of the potential claim. Specifically, Dhillon made the following allegations in his original complaint:

“[A]ccording to … Dr. Kent, misrepresentations were made by … Kent to him that the [subject] property was foreclosed upon to avoid disclosing [assets]” in Kent and Dr. Kent’s divorce proceedings.

“[Dr.] Kent stated, ‘I have no knowledge of a transfer’ of the [subject] property,” and that he was told by Kent “the subject property was lost and foreclosed upon years ago.”

“[Dr.] Kent further stated that … Kent had a power of attorney to do some legal matters, but not to the extent and/or authority of transferring such properties.”

“[Dr.] Kent also stated that … Kent continued to forge his signatures on all documents ….”

According to those allegations, Dr. Kent was unaware that R&M continued to own the subject property at the time Dhillon acquired title; was unaware of any transfers of the property; and Kent was forging Dr. Kent’s signature on transaction documents pertaining to the subject property. Notwithstanding, Dhillon never contended the signatures on the subject grant deed were forged, never sought to rescind the transaction, and never sought damages from defendants Kent in connection with the alleged forgery.[14]

The proposed amendments open up a whole new area of inquiry in the litigation. It is reasonable to expect that if the amendments were allowed, (1) defendants Kent would have had to change their strategy in defending against the litigation, (2) the parties would have had to engage in additional discovery, and (3) defendants Kent’s costs of preparing for trial would have increased. This would have prolonged the case which had already been pending for over five years. In addition, according to allegations contained in the proposed amendments, Dr. Kent is now deceased. Consequently, Dhillon’s delay in bringing the cause of action has resulted in a loss of critical evidence.

Based on the foregoing, we conclude Dhillon’s delay in bringing this claim is inexcusable and defendants Kent would be prejudiced if Dhillon were allowed to assert the claim at this late stage of the litigation. The trial court did not abuse its discretion in denying leave to amend to state this claim.[15]

B. Proposed Amendments—Fraud in the Inducement (Allegations Of Alleged Misrepresentations By Kent To Romance).

In his proposed amendments, Dhillon reasserts a claim of fraud in the inducement premised on fraudulent statements allegedly made by Kent to Romance in selling Romance the R&M refinance loan. This claim was previously contained in Dhillon’s original complaint, and judgment on the pleadings was granted in connection with the claim. Dhillon has not challenged the propriety of granting the motion except to the extent he contends he should have been granted leave to amend. Thus, he has forfeited any other challenge to the substantive basis upon which the second MJOP was granted.

In any event, Dhillon’s allegation that he relied on Kent’s misrepresentations to Romance that R&M “held clear title to the subject property and/or had not conveyed any interest therein to any other person or entity” cannot stand. Dhillon knew this alleged misrepresentation was false. A plaintiff may not reasonably rely on representations known by him to be false. (Blackman v. Howes (1947) 82 Cal.App.2d 275, 279–280.)

Having examined Dhillon’s proposed fraud in the inducement cause of action in detail, we conclude the cause of action is not viable.

C. Proposed Amendments—Breach of Contract.

In his proposed second cause of action for breach of contract, Dhillon alleges that he entered into a valid and enforceable contract with defendants Kent for the purchase and sale of the subject property and that he fully performed his contractual obligations by making required payments to defendants Kent. He further alleges Kent “is in violation of her representations contained in the agreement and repeatedly accepted money from [Dhillon] during these false representations” and “breached the express terms of the party’s contract when … Kent falsely represented that Dr. Kent signed the contract including all following documents, and when … Kent falsely represented that [Dhillon] did not pay for the [R&M refinance loan] Installment Note prior to selling plaintiff[’]s [i.e., Dhillon’s] interest to Romance.” Finally, Dhillon alleges he suffered “extreme financial losses” as a direct and proximate result of the alleged breaches.

Dhillon’s proposed claims for breach of contract are predicated on the same facts underlying his proposed claims for fraud. As such, the same considerations of delay, loss of critical evidence, and increased preparation costs, discussed in connection with Dhillon’s proposed claim for fraud apply here.

Dhillon also contends Kent breached the contract by “falsely represent[ing] that [Dhillon] did not pay for the carry-back Installment Note prior to selling [Dhillon’s] interest to Romance.” The allegation is nonsensical. R&M did not sell Romance Dhillon’s interest when it sold Romance the R&M refinance loan. To the extent Dhillon is attempting to allege Kent falsely represented to Romance that Dhillon did not pay off the R&M refinance loan, Dhillon’s own allegations in his original complaint admit the representation was true. Specifically, Dhillon alleged that, after Dhillon paid down the original R&M loan by $1.9 million, Dhillon executed the R&M refinance promissory note in favor of R&M in the amount of $1.4 million (the remaining balance due) and that, after making payments thereon, approximately $600,000 remained due and owing on the note. Accordingly, Dhillon’s own averments acknowledge he did not pay off the R&M refinance loan. “An amendment that contradicts an admission in the original pleadings will ordinarily not be allowed.” (Astenius, supra, 126 Cal.App.4th at p. 477.) We conclude this claim is not viable.

The trial court did not abuse its discretion in denying leave to amend to state a claim for breach of contract against defendants Kent.

D. Proposed Amendments—Declaratory Relief.

Declaratory relief causes of action are authorized under Code of Civil Procedure section 1060. That section provides: “Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.” (Code Civ. Proc., § 1060.)

Declaratory relief is not available to redress past wrongs. (Lee v. Silveira (2016) 6 Cal.App.5th 527, 549.) “Declaratory relief operates prospectively to declare future rights, rather than to redress past wrongs. [Citation.] Where, as here, a party has a fully matured cause of action for money, the party must seek the remedy of damages, and not pursue a declaratory relief claim.” (Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497.)

Here, Dhillon’s proposed third cause of action for declaratory relief seeks “a declaration … that [] Kent made false representations ‘with the knowledge’ that her ex-husband, Dr. Kent was not present when [] Kent forged his signatures on the [subject grant deed] of interest transferred to [Dhillon] and all sales documents in furtherance of the sale.” By way of this cause of action Dhillon seeks to “void” the subject grant deed or, alternatively, to obtain “the return of all the funds he tendered to [] Kent as it relates to the [s]ubject [p]roperty.”

Dhillon is attempting to seek redress of past (alleged) wrongs. Declaratory relief is unavailable for such purposes.

V. The Trial Court Was Not Biased.

Finally, in his opening brief, Dhillon contends the trial court was biased based upon a comment it made in ruling on Romance’s motion for sanctions pursuant to Code of Civil Procedure section 128.7. Dhillon impliedly suggests this alleged bias demonstrates the court abused its discretion in denying Dhillon leave to amend. We disagree. The statement at issue reads, “Plaintiff appears to be pursuing the action as part of a years‑long campaign to frustrate creditors and stymie the foreclosure proceedings with respect to the property in question.” When a motion is properly brought under Code of Civil Procedure section 128.7, the court is empowered to determine whether subdivision (b) of the statute has been violated. (Code Civ. Proc. § 128.7, subd. (c).) In ruling on such a motion, the court must determine, among other things, whether a challenged pleading is “being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,” and whether the pleading is factually or legally frivolous. (Id., subd. (b)(1), (2), (3); Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189.) The court’s comments did not demonstrate bias. Rather, those comments reflected the court’s adjudication of a necessary issue presented by a motion properly before it. Moreover, the record does not reflect that Dhillon ever challenged the court’s ruling on Romance’s Code of Civil Procedure section 128.7 motion, or sought to disqualify the judge based on those comments. Failure to timely raise an issue of disqualification results in a forfeiture of the right to pursue disqualification and is an implied waiver of the disqualification. (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337; In re Steven O. (1991) 229 Cal.App.3d 46, 53–55.) It would be “ ‘ “ ‘intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’ ” ’ ” (Tri Counties Bank, supra, at p. 1337.) Dhillon has not demonstrated bias on the part of the trial court, let alone abuse of discretion based thereon.

VI. Conclusion.

In summary, the trial court did not abuse its discretion in denying Dhillon leave to amend his complaint. Dhillon offers no valid excuse for his delay in bringing claims related to the alleged forgery of the subject grant deed. The factual bases for these claims were known to Dhillon at the time the original complaint was filed in 2015. To allow Dhillon to bring such claims five years later, would undoubtedly prejudice defendants Kent. Moreover, none of the remaining proposed causes of action appear viable.

It was Dhillon’s burden to show the trial court abused its discretion (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957) and to demonstrate there is a reasonable possibility he could cure defects in the original complaint through amendment. (Foundation for Taxpayer Rights, supra, 143 Cal.App.4th at p. 135; Careau, supra, 222 Cal.App.3d at p. 1386.) Dhillon did not carry his burden.

DISPOSITION

The order granting judgment on the pleadings without leave to amend is affirmed. Defendants Kent are entitled to their costs on appeal.

LEVY, Acting P. J.

WE CONCUR:

PEÑA, J.

SMITH, J.

[1] Although no separate judgment was entered in the case, we construe the subject order as a judgment of dismissal. The subject order recites: “IT IS ORDERED, ADJUDGED AND DECREED that: [Defendants Kent’s] Motion for Judgment on the Pleadings as to all causes of action alleged in [Dhillon’s] verified Complaint is granted, without leave to amend. [¶] [Defendants Kent] are dismissed with prejudice as parties to this case.” “ ‘ “It is not the form of the decree but the substance and effect of the adjudication which is determinative. [W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final ….” ’ [Citations.] ‘We have long recognized a “well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ ” ’ ” (Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1115.)

[2] Dhillon’s spouse is not a party to the lawsuit. To avoid unnecessary complexity, we collectively refer to Dhillon and his spouse as “Dhillon” except where necessary to distinguish between them.

[3] In his original verified complaint, Dhillon alleged a dispute arose between SBI and R&M’s successor in interest, Joseph P. Romance, as to the respective priorities of the SBI refinance deed of trust and the R&M refinance deed of trust. Dhillon alleged the dispute was the subject of separate litigation—i.e., Romance v. State Bank of India, Kern County Superior Court case No. S-1500-CV-281608. In a subsequent filing, Dhillon indicated his belief the case settled. In any event, we are not called upon to resolve the aforementioned priority dispute, and are unaware of the arguments made in support or opposition to those parties’ respective priority claims.

[4] In a declaration dated July 10, 2015, Dhillon contended he owned 100 percent of the shares of BGP. The record on appeal contains declarations from different proceedings which cast uncertainty as to the true ownership of BGP. Specifically, when BGP declared bankruptcy in 2015, purported owner, Pinder Singh, filed a declaration indicating he purchased all the outstanding shares of BGP in two separate transactions in 2012 and 2013. In June of 2016, Dhillon filed a declaration in the BGP bankruptcy admitting he “sold [BGP], and all of its assets to … Singh.” In August of 2016, Dhillon filed a subsequent declaration in the BGP bankruptcy claiming to have “effectively reacquired ownership interest of BGP” based on allegations that “Singh notified [Dhillon] that he wanted to return [BGP] to [Dhillon], and for [Dhillon] to pay him $2M.” In May 2017, Singh executed a declaration indicating he had rescinded the purchase of BGP. In it, Singh stated, “I assert no ownership interest in [BGP] nor do I assert any ownership interest in its crop proceeds.” Also in May of 2017, Dhillon filed a declaration stating his mother had a right to the BGP stock Dhillon had sold to Singh and that, as of May 8, 2017, Dhillon “assert[ed] no claim to ownership of [BGP] stock.”

[5] R&M executed a formal assignment of the R&M refinance deed of trust in favor of Romance on or about May 29, 2015. The assignment was recorded on June 11, 2015.

[6] R.E.F.S. Inc., A California Corporation, served as trustee for both the SBI refinance deed of trust and the JEI deed of trust. The record on appeal does not include a copy of a notice of default recorded in connection with the JEI deed of trust.

[7] The complaint did not mention Dhillon’s 2010 conveyance of the subject property to BGP.

[8] Certain causes of action contained in the original verified complaint are extremely confusing as written. To the extent allegations of that complaint are relevant to the issue raised on appeal, we discuss them in later sections of this opinion.

[9] Although the 2018 proposed first amended complaint contains an allegation that “Chicago Title failed to discover that [Dr. Kent] had not personally signed the [subject grant deed] to the [subject property] and that, therefore all such documents were in fact fraudulent,” the 2018 proposed first amended complaint did not include any causes of action directed at invalidating the subject grant deed, or at obtaining redress in connection with any alleged forgery of the subject grant deed. In fact, Dhillon relied on the validity of the subject grant deed in seeking relief, stating Dhillon “is entitled to possession of the subject property,” and “[Dhillon] claim[s] to hold title to the subject property, in fee simple, based on [the subject grant deed].”

[10] Rule 3.1324 of the California Rules of Court, provides, in relevant part: “(b) Supporting declaration A separate declaration must accompany the motion and must specify: [¶] … [¶] (3) When the facts giving rise to the amended allegations were discovered; and [¶] (4) The reasons why the request for amendment was not made earlier.” (Cal. Rules of Court, rule 3.1324(b)(3), (4).)

[11] SBI’s motion was premised on Dhillon’s continued prosecution of the case against SBI after SBI sold its interests in the subject property to Romance.

[12] The basis of Romance’s motion was that the causes of action to quiet title, for declaratory relief, and to cancel the R&M refinance deed of trust were rendered moot because the R&M refinance deed of trust was extinguished by foreclosure of the SBI refinance deed of trust, and that the fraud cause of action stated no claim against Romance.

[13] The deeds of trust securing the original R&M loan and R&M refinance loan were signed by Dhillon, not Dr. Kent or any of defendants Kent.

[14] In addition to the allegations from Dhillon’s complaint (filed on April 21, 2015), the alleged evidence relied upon by Dhillon in support of these proposed amendments also dates as far back as 2015. This alleged evidence includes a purported verification from Dr. Kent dated December 14, 2015, attached to which is an undated, purported, partial declaration from Dr. Kent attesting he did not sign the subject grant deed; a purported declaration dated December 16, 2015, from the notary who notarized the subject grant deed, attesting Dr. Kent’s signature was forged; and a purported declaration dated August 21, 2017, from a forensic document examiner opining Dr. Kent’s signature on the subject grant deed was forged. Dhillon made no effort at the trial court level or on appeal to explain when he obtained this evidence.

[15] Although not briefed by the parties, or relied on by this court, there is an additional reason why the trial court could have properly exercised its discretion in denying Dhillon leave to amend to state his proposed fraud cause of action. The limitation period for a cause of action for fraud is three years from the date of discovery of the facts constituting fraud. (Code Civ. Proc., § 338, subd. (d).) “A fraud claim will accrue even without actual knowledge if a plaintiff knows facts that should raise suspicion and trigger a further investigation.” (Vera v. REL-BC, LLC (2021) 66 Cal.App.5th 57, 69.) Dhillon’s original complaint, filed on April 21, 2015, demonstrates he was on notice that Dr. Kent contended his signature on the subject grant deed was forged. His proposed amendments were not proffered until June 12, 2020, more than two years beyond the limitation period. “An amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar …, if it: (1) rests on the same general set of facts as the original complaint; and (2) refers to the same accident and same injuries as the original complaint.” (Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 151.) Here, Dhillon never challenged the validity of the subject grant deed, never alleged he was injured by it, and never sought damages or other relief in connection with its execution. Thus, Dhillon’s proposed amendments for this claim do not refer to the same injuries as the original complaint and, it appears, do not relate back to the original complaint.