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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.

Page 1116

[Copyrighted Material Omitted]

Page 1117

[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.

Page 1119

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 ...


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