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DKN Holdings LLC v. Faerber

California Court of Appeals, Fourth District, Second Division

April 9, 2014

DKN HOLDINGS LLC, Plaintiff and Appellant,
v.
WADE FAERBER, Defendant and Respondent.

[REVIEW GRANTED BY CAL. SUPREME COURT]

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL fro the Superior Court of Riverside County No. RIC1109512. John Vineyard, Judge.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL

Prenovost, Normandin, Bergh & Dawe, Michael G. Dawe and Paula M. Harrelson for Plaintiff and Appellant.

Callahan & Blaine, Edward Susolik and Michael S. LeBoff for Defendant and Respondent.

OPINION

KING J.

I. INTRODUCTION

Plaintiff DKN Holdings LLC (DKN) appeals from a judgment of dismissal after the trial court sustained, without leave to amend, defendant Wade Faerber’s demurrer to DKN’s complaint for monies due under a commercial lease. (Code Civ. Proc., § 430.10 subd. (e).)[1] DKN also appeals from a postjudgment order awarding Faerber $54, 817.50 in attorney fees as the prevailing party in the action on the lease, claiming the fee award is unreasonable. The two appeals have been consolidated for oral argument and decision.

In this appeal, we affirm the judgment of dismissal and the attorney fee award. In DKN Holdings, LLC v. Neel (Apr. 9, 2014, E056497) (nonpub. opn.), DKN appeals a postjudgment order dismissing another defendant, Matthew Neel, whose default was entered after he was served with the complaint but failed to appear. In that appeal, we affirm the order dismissing Neel.

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II. BACKGROUND

A. Synopsis

By its complaint in the present action, DKN, a lessor on a commercial lease, sued Faerber and Neel, two of three colessees, for unpaid rents and other monies due under the lease. In a prior action, DKN obtained a money judgment for over $3 million against the third colessee, Roy Caputo, following a court trial on the merits for monies due under the lease. The lease provides that colessees shall be “jointly and severally responsible” to comply with its terms. Although DKN sued Faerber and Neel in the prior action, along with Caputo, DKN dismissed them without prejudice before trial and judgment. The judgment against Caputo is apparently unsatisfied.

The question on the present appeal from the judgment of dismissal is whether the judgment against Caputo in the Caputo action bars DKN’s claims against Faerber and Neel in the present action. The trial court concluded that the judgment against Caputo bars DKN’s claims in the present action, and we agree. We conclude that the complaint does not and cannot state a cause of action against Faerber and Neel for monies due under the lease, because DKN’s claims against Faerber and Neel in the present action are barred by the claim preclusion aspect of the res judicata doctrine.

B. The Lease Agreement

In June 2004, Faerber, Neel, and Caputo agreed to lease retail space in a Murrieta shopping center known as Margarita Square from the center’s co-owners and lessees, DKN and CDFT Limited Partnership (CDFT). The parties signed a “Standard Retail/Multi-Tenant Lease-Net” lease with a 10-year term. Section 48 of the lease provides that “multiple parties” signing the lease as lessors or lessees “shall have joint and several responsibility” to comply with its terms. (Italics added.) For purposes of the present demurrer, Faerber and DKN do not dispute that Caputo, Faerber, and Neel were jointly and severally liable to DKN under the lease.

Faerber is an orthopedic surgeon, and Caputo is also a physician. Faerber, Caputo, and Neel intended to use the leasehold to build and operate an “upscale” fitness and training center under the trade name Evolution Elite Sports and Fitness Club. In September 2004, the lease was amended to increase the size of the leasehold from approximately 15, 000 square feet to approximately 22, 000 square feet, and the rent was increased. Around March 2007, Faerber and Caputo acquired Neel’s interest in the business and orally agreed to indemnify Neel for any liability he may incur for monies due under the lease.

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C. The First Action on the Lease

In June 2007, Caputo sued DKN, seeking to rescind or cancel the lease and for money damages based on fraud, breach of fiduciary duty, and other grounds or causes of action (the Caputo action).[2] In a nutshell, Caputo alleged that DKN failed to make material disclosures concerning the leasehold and breached its obligations under the lease, resulting in the failure of the fitness club. Among other things, Caputo claimed DKN failed to disclose that (1) a streambed near the shopping center was required by law to be planted with native vegetation that could not be trimmed and that would block views to the leasehold, and (2) a center median would have to be constructed on Murrieta Hot Springs Road, reducing and inhibiting access to the shopping center.

In the Caputo action, DKN and CDFT cross-complained against Caputo, Faerber, and Neel for monies due under the lease. Caputo was served with DKN’s first amended cross-complaint, but Faerber and Neel were not served. Following a June 2011 court trial and statement of decision on the complaint and first amended cross-complaint, Caputo was denied any relief on his complaint, and DKN/CDFT was awarded over $2.8 million in money damages on its cross-complaint against Caputo. Faerber and Neel were dismissed as (unserved) cross-defendants following the entry of the judgment against Caputo. Thereafter, DKN/CDFT did not move to add Faerber or Neel to the judgment against Caputo as additional judgment debtors. (§ 989.)

D. The Present Complaint Against Faerber and Neel

On June 1, 2011, shortly before the statement of decision was issued in the Caputo action, DKN filed the present action against Faerber and Neel, asserting two cause of action. The first cause of action, for breach of the lease, names both Faerber and Neel and seeks the same money damages that DKN was awarded against Caputo in the Caputo action. The second cause of action, for breach of an oral indemnity agreement against Faerber, alleges DKN is entitled to the benefit of Faerber’s March 2007 oral agreement to indemnify Neel for any liability Neel may incur under the lease. The claim alleges Faerber “is now obligated to DKN for Neel’s non-payment of rent on the oral contract for indemnity.”

E. Faerber’s General Demurrer

Faerber demurred to the complaint on the ground it failed to state a cause of action because the judgment against Caputo barred DKN’s claims against

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Faerber and Neel for monies due under the lease. (§ 430.10, subd. (e).) Faerber claimed that DKN was improperly splitting its single cause of action or primary right for monies due under the lease into two separate suits, the first against Caputo in the Caputo action and the second against Farber and Neel in the present action. In opposing the demurrer, DKN claimed that joint and several obligors, such as Caputo, Faerber, and Neel, may be sued in separate actions under California law.

The trial court sustained Faerber’s demurrer, without leave to amend, and entered judgment in favor of Faerber. In a postjudgment order, Faerber was awarded $54, 817.50 in attorney fees.

III. DISCUSSION/FAERBER’S GENERAL DEMURRER

A. Standard of Review on Demurrer

We independently review the court’s order sustaining, without leave to amend, Faerber’s general demurrer to DKN’s complaint in the present action. (Federal Home Loan Bank of San Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1526 [154 Cal.Rptr.3d 873].) "We first review the complaint de novo to determine whether it contains facts sufficient to state a cause of action under any legal theory. [Citation.] ‘“‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.]”’ [Citation.] ‘We affirm if any ground offered in support of the demurrer was well taken but find error if the plaintiff has stated a cause of action under any possible legal theory. [Citations.] We are not bound by the trial court’s stated reasons, if any, supporting its ruling; we review the ruling, not its rationale. [Citation.]’ [Citation.]” (Estate of Dito (2011) 198 Cal.App.4th 791, 800 [130 Cal.Rptr.3d 279].)

B. The Judgment Against Caputo in the Caputo Action Bars DKN’s Claims Against Faerber and Neel in the Present Action

DKN claims Faerber’s demurrer was erroneously granted and the complaint states a cause of action. DKN argues that, under California law, joint and several obligors, such as Faerber, Neel, and Caputo, may be sued in separate actions. As we explain, DKN is mistaken. Joint and several obligors may not be sued in separate actions when, as here, the claim or claims against them are barred by a prior judgment under the claim preclusion aspect of the res judicata doctrine.

“‘As generally understood, “[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” [Citation.] The doctrine “has a double aspect.”

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[Citation.] “In its primary aspect, ” commonly known as claim preclusion, it “operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]” [Citation.] “In its secondary aspect, ” commonly known as collateral estoppel, “[t]he prior judgment... ‘operates’” in “a second suit... based on a different cause of action... ‘as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.’ [Citation.]” [Citation.]’” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 [108 Cal.Rptr.3d 806, 230 P.3d 342].)

The purpose of the doctrine of res judicata is “‘to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation.’ [Citations.]” (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556 [90 Cal.Rptr.2d 469].) " ' "The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]”’ [Citation.]” (Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th at p. 797.) The party asserting the preclusive effect of a prior judgment bears the burden of establishing it. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [75 Cal.Rptr.3d 19].)

The present case concerns the claim preclusion aspect of res judicata, not the issue preclusion or collateral estoppel aspect. We independently conclude that all three elements of the res judicata doctrine apply, and that the judgment in the Caputo action bars DKN’s claims against Faerber in the present action.

First, it is undisputed, and the judicially noticed records from the Caputo action show, that DKN was a party to the Caputo action and the action resulted in a final judgment on the merits against Caputo. As a party to the Caputo action, DKN is bound by the judgment in that action, and res judicata may be invoked against DKN based on the final judgment. (Arias v. Superior Court (2009) 46 Cal.4th 969, 985 [95 Cal.Rptr.3d 588, 209 P.3d 923] [res judicata operates “only against those who were parties, or in privity with parties, to that prior litigation and who are thus bound by the resulting judgment.”].)

Furthermore, Faerber and Neel may invoke res judicata against DKN in the present action based on the final judgment in the Caputo action, even though Faerber and Neel were not parties to the Caputo action. “The party

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seeking the benefit of the [res judicata] doctrine... need not have been a party to the earlier lawsuit.” (Arias v. Superior Court, supra, 46 Cal.4th at p. 985.) “Only the party against whom the doctrine [of res judicata] is invoked must be bound by the prior proceeding.” (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828 [88 Cal.Rptr.2d 366, 982 P.2d 229].)

In addition, the present action against Faerber and Neel is based on the same claims that DKN asserted against Caputo in the Caputo action. In California, the primary rights theory applies in determining whether two proceedings involve identical causes of action, for purposes of claim preclusion. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904 [123 Cal.Rptr.2d 432, 51 P.3d 297].) Under the primary rights theory of code pleading, which has long been followed in California, “‘a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.]...

“‘As far as its content is concerned, the primary right is simply the plaintiff’s right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: “Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.” [Citation.] The primary right must also be distinguished from the remedy sought: “The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.” [Citation.]’” (Mycogen Corp. v Monsanto Co., supra, 28 Cal.4th at p. 904.)

DKN’s claims against Faerber and Neel are based on the same primary right—the right to recover monies due under the lease—that DKN asserted against Caputo in the Caputo action. The first cause of action against both Faerber and Neel for their failure to pay monies due under the lease is based squarely on DKN’s right to recover monies due under the lease. Similarly, DKN’s second cause of action against Faerber (only) seeks the benefit of Faerber’s oral agreement to indemnify Neel for any liability Neel may incur under the lease. As such, the second cause of action is based on DKN’s primary right to recover monies due under the lease, even though it seeks to vindicate that right by the alternative remedy of obtaining the benefit of Faerber’s agreement to indemnify Neel. (Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th at p. 798 [“under the primary rights theory, the determinative factor is the harm suffered.”].)

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DKN argues that because joint and several obligors are jointly and severally, or individually, liable on an obligation, a claim against each of them constitutes a separate claim. DKN is mistaken. Under the primary rights theory, and for purposes of applying the res judicata doctrine, the claims are identical. (Lippert v. Bailey (1966) 241 Cal.App.2d 376, 382 [50 Cal.Rptr. 478] [Fourth Dist., Div. Two] [“A single cause of action may not be maintained against various defendants in separate suits as the plaintiff has suffered but one injury.”].)

Relying on a passage from the California Supreme Court’s 56-year-old decision in Williams v. Reed (1957) 48 Cal.2d 57, 65 [307 P.2d 353] (Williams), DKN argues that a judgment against one joint and several obligor does not foreclose a later action against another joint and several obligor on the same obligation. The Williams courtobserved: “It is true in most jurisdictions, including California, that joint obligors upon the same contract are indispensible parties. They may not be sued separately [citations]. If judgment is obtained in a separate action against one, it bars an action against the others. [Citation.] When the obligation is joint and several, it is not nonjoinder to sue one alone [citations]. The same is true of an action against one or more and less than all of a number of persons jointly and severally obligated as tort feasors. In such a case the judgment obtained against one is not a bar to an action against the remaining joint and several obligors. ‘Nothing short of satisfaction in some form constitutes a bar....’” (Ibid., quoting Grundel v. Union Iron Works (1900) 127 Cal. 438, 442 [59 P. 826].)

Based on this passage from Williams, DKN argues that because Caputo, Faerber, and Neel are jointly and severally liable for the unpaid rents and other monies due under the lease, the judgment against Caputo does not bar DKN’s identical claims against Faerber and Neel in the present action. We disagree. As the trial court noted in sustaining the demurrer, the passage from Williams is “wrong” and incorrectly states the law—to the extent it may be construed as allowing an obligee, such as DKN, to obtain separate judgments in separate actions against joint and several obligors, based on the same claims. Williams did notaddress the issue presented here: whether a final judgment on the merits against one joint and several obligor bars a subsequent action and judgment against additional joint and several obligors, on the same obligation, by the same claimant. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176 [119 Cal.Rptr.2d 903, 46 P.3d 372] ["cases are not authority for propositions not considered.”].) Thus, Williams does not support DKN’s position.[3]

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To be sure, courts are generally authorized to render separate judgments, in the same action or in separate actions, against joint and several obligors. (Melander v. Western Nat. Bank (1913) 21 Cal.App. 462, 474-478 [132 P. 265] [construing former § 414, now § 410.70 & §§ 578, 579, as authoring courts to enter separate judgments in separate actions against joint and several obligors];[4] see also Grundel v. Union Iron Works, supra, 127 Cal. at p. 442 [joint and several tort feasors may be sued in separate actions].) But even when joint and several obligors are not required to be sued in the same action (see §§ 410.70, 379, 389) when, as here, a final judgment on the merits has been rendered in one action against a joint and several obligor, res judicata will bar the assertion of identical claims against other joint and several obligors, in a subsequent action, by parties bound by the judgment in the prior action.

DKN also relies on the following passage from Witkin: “If the defendants are both jointly and severally liable, joinder is not mandatory but permissive, and the plaintiff, although he or she has but one cause of action, may sue one defendant first and another later. Despite the theoretical incongruity, the plaintiff is not barred in the second action because the defense of res judicata is available only when both the cause of action and the parties are the same.” (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 65, p. 124, italics added.) Like the passage from Williams, supra, 48 Cal.2d at page 65, the trial court rejected this passage from Witkin as an incorrect statement of the law, [5] and we agree it is incorrect. The passage from Witkin mistakenly indicates that defendants in the current proceeding must have been parties to the prior proceeding, in which a final judgment on the merits was obtained on the same claims, in order to invoke res judicata in the current proceeding, but this is not the law. As discussed, only the party against whom res judicata is invoked must have been a party to the prior action and bound by the judgment in that action. (Arias v. Superior Court, supra, 46 Cal.4th at p. 985.) It is not

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necessary that the party invoking the doctrine in the prior proceeding have been a party to the prior proceeding, or bound by the judgment in that proceeding. (Ibid.)

C. DKN’s Partnership Claim is Unavailing

DKN further claims its complaint states a cause of action because the trial court in the Caputo action found that Faerber, along with Caputo and Neel, were “partners” on the lease. DKN is mistaken. In its statement of decision in the Caputo action, the trial court did not find that Caputo, Faerber, and Neel were partners, and even if it had, the finding would not be binding on Faerber or Neel because they were not parties to the Caputo action. In generally describing the lease, the trial court in the Caputo action loosely referred to Caputo, Faerber, and Neel as “partners” who “wanted to lease and build out premises for a fitness club....”

In any event, DKN argues Faerber’s “partnership liability” under the lease “creates an independent basis” for holding him responsible in the present action on the lease, apart from his joint and several liability as a colessee. DKN reasons that California’s Uniform Partnership Act of 1994 (Corp. Code, § 16100 et seq.) permits a plaintiff to sue partners in separate actions. Though the Uniform Partnership Act of 1994 provides that “an action” may be brought against the partnership “and any or all of the partners in the same action or in separate actions” (Corp. Code, § 16307, subd. (b), italics added), this statutory authorization to sue partners in separate actions does not apply when, as here, the claims asserted in the subsequent action are barred by res judicata principles.

D. DKN’s Misrepresentation Claim is Unavailing

Based on facts neither alleged in the complaint nor judicially noticed, DKN claims Faerber misled and deceived DKN to dismiss Faerber from the Caputo action, without prejudice. DKN argues that Faerber has “unclean hands” because, near the outset of the Caputo action, the attorney representing Caputo, Faerber, and Neel falsely represented to DKN that, shortly after the lease was signed in June 2004, the three colessees, together with DKN’s representative, Bill Dendy, amended the lease to exclude Faerber and Neel as colessees and to provide that Caputo was the sole lessee. Dendy was the managing partner of CDFT, the co-owner of the shopping center, and DKN’s colessor on the lease with Caputo, Faerber, and Neel.

DKN represents that Dendy, who died in 2005, was the only person on DKN’s side of the transaction who had personal knowledge of whether the lease was amended to exclude Faerber and Neel as lessees, as Faerber

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claimed. The lease was not well documented, and there were ambiguities and omissions in the documents constituting the lease. DKN claims it did not serve Faerber or Neel with its amended cross-complaint in the Caputo action and instead dismissed Faerber and Neel, without prejudice, based on their attorney’s representation that the lease was amended to exclude them. Now, however, DKN argues that the evidence presented at trial in the Caputo action, including Faerber’s testimony, shows Faerber’s counsel misrepresented the facts, and that Faerber and Neel were in fact intended to be bound by the lease.

DKN’s argument is unavailing. Even if the complaint were amended to allege that Faerber negligently or intentionally misled DKN regarding his and Neel’s status as colessees under the lease, the complaint would not state a cause of action against Faerber or Neel. (Estate of Dito, supra, 198 Cal.App.4th at pp. 800-801 [when the facts pleaded do not state a cause of action, we determine whether the plaintiff has demonstrated a reasonable possibility that the defect can be cured by amendment].) DKN does not argue that Faerber is equitably estopped from asserting that the present action against him is barred by res judicata principles, and even if it did, it could not state facts sufficient to support the reasonable reliance element of equitable estoppel. (See Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 187-188 [104 Cal.Rptr.3d 508] [reasonable reliance element of equitable estoppel is question of fact for the trier of fact unless reasonable minds could reach only one conclusion based on the evidence].)[6]

DKN was represented by counsel in the Caputo action, and DKN dismissed Faerber and Neel from that action before discovery was completed and the matter proceeded to trial. In the absence of documentation showing the lease had been amended to exclude Faerber and Neel as colessees, DKN did not reasonably rely on any oral misrepresentation by Faerber or his counsel that the lease had been amended, shortly after it was signed, to exclude Faerber and Neel as colessees.

IV. DISCUSSION/THE ATTORNEY FEE AWARD[*]

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V. DISPOSITION

The judgment dismissing DKN’s complaint and the postjudgment order awarding Faerber $54, 817.50 in attorney fees are affirmed. Faerber shall recover his costs on each appeal. (Cal. Rules of Court, rule 8.278.)

Hollenhorst, Acting P. J., and Richli, J., concurred.


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