Turner v. Center Street Lending Services CA2/5 ( 2021 )

Filed 12/16/21 Turner v. Center Street Lending Services CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
LAWRENCE TURNER, B305895
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. BC648429)
CENTER STREET LENDING
SERVICES et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Patricia Nieto, Judge. Affirmed.
TamerLawCorp, Steven Michael Tamer, for Plaintiff and
Appellant.
Fidelity National Law Group, Kevin R. Broersma, for
Defendant and Respondent Center Street Lending Services, MP
IV, LLC.
Wedgewood, Elaine Yang, for Defendant and Respondent
Duke Partners II, LLC.
We consider whether a trial court’s resolution of a forgery
defense at an unlawful detainer trial was properly given
preclusive effect in a later civil action seeking relief on the same
forgery theory.
I. BACKGROUND1
A. Pertinent Transactions Involving the Real Property in
Question
In November 1993, plaintiff and appellant Lawrence
Turner (Turner) acquired property located at 1459 E. 121st
Street, Los Angeles, CA 90059 (the Property). Turner later
executed a grant deed conveying his interest in the Property to
the Lawrence Nathaniel Turner Revocable Living Trust (the
Trust). In his capacity as trustee, Turner then signed a deed of
trust using the Property as security for a $275,000 loan from
Wells Fargo.
Subsequently, in October 2013, a grant deed conveyed the
Trust’s ownership interest in the Property to Diversified Realty
and Financial Services (Diversified). This document, which we
shall refer to as the Diversified Deed, is central to this appeal.
On its face, it appears to be signed on October 9, 2013, by Turner
in his capacity as Trustee of the Trust. (As we will soon discuss,
1
Our recitation of the pertinent background is drawn from
the allegations in the operative complaint, exhibits attached to
the complaint, and documents judicially noticed by the trial
court. (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160,
166 [“‘A motion for judgment on the pleadings, like a general
demurrer, tests the allegations of the complaint or cross-
complaint, supplemented by any matter of which the trial court
takes judicial notice . . . .’”].)
2
Turner claims he never signed the Diversified Deed and his
signature on it is a forgery.)
The following month, Turner executed another grant deed
conveying his interest in the Property to himself in his capacity
as Trustee of the Trust. Both the Diversified Deed and the later-
signed November 2013 grant deed were notarized on November
18, 2013, and recorded on January 30, 2014.
Diversified executed a deed of trust pledging the Property
as collateral to secure a $108,000 loan from defendant and
respondent Center Street Lending Services, MP IV, LLC (Center
Street). Rashid K. Khalfani (Khalfani), also known as
Christopher Lee (as Turner would later discover), signed on
behalf of Diversified as its managing member. The following day,
Diversified executed a grant deed conveying its ownership
interest in the Property to Capital Cove Asset Management
(Capital Cove).2 Khalfani again signed the grant deed on behalf
of Diversified as managing member.
B. The Capital Cove Unlawful Detainer Action
In October 2014, Capital Cove filed an unlawful detainer
lawsuit against Turner. The unlawful detainer complaint alleged
the Property was sold to Capital Cove in January 2014 and title
had been duly perfected. One of the exhibits attached to the
complaint and incorporated by reference was the Diversified
Deed.
In May 2015, the trial court resolved the unlawful detainer
case via a statement of decision following a bench trial. The
2
Turner understood Khalfani was also Capital Cove’s
principal.
3
statement of decision indicates trial began on May 21, 2015, and
concluded on May 26, 2015; both parties were represented by
counsel. The statement of decision further reports the court
ruled on motions, heard testimony from witnesses for both sides,
considered objections to evidence, and admitted exhibits in
evidence.3
According to the statement of decision, Turner sought to
defend against the unlawful detainer by arguing Capital Cove
had not perfected title to the Property. The court permitted
Turner to mount such a defense and present evidence within the
framework of the unlawful detainer action.
As pertinent for our purposes, the trial court’s statement of
decision explains Turner’s defense included his denial that the
signature on the Diversified Deed, as well as other documents
relating to the Property, was actually his. A witness for Capital
Cove (one Mr. Clarke) rebutted the assertion by testifying he
spoke with Turner about a short sale on behalf of Diversified in
the last quarter of 2013, managed the short sale, and personally
met with Turner in 2014. The witness testified Turner was
“upside down” on the Property via a home equity loan debt to
Wells Fargo and wanted to get out of the debt. The trial court
also admitted documents Capital Cove and Diversified relied on
in purchasing the Property, including a January 2014 letter from
Wells Fargo approving a short sale to Diversified that would fully
resolve Turner’s home equity loan and a May 2013 letter from
Turner stating he needed a short sale to save him from
foreclosure. Considering this and other evidence, the trial court
acknowledged “Turner denied signing these documents” but
3
No reporter’s transcript of the unlawful detainer trial was
lodged with the court below or with this court on appeal.
4
concluded “Turner’s testimony in this respect lacked credibility”
and found, after “reviewing the signatures as well as the exhibits,
the certified notarizations, and Mr. Clarke’s testimony” that “all
these documents were in fact signed by Turner as indicated.”
Turner appealed the trial court’s unlawful detainer
judgment. The appellate division of the superior court affirmed.
The appellate division recognized Turner had contended and
continued to maintain his signature on the Diversified Deed was
a forgery, but the appellate division concluded there was
“overwhelming” evidence supporting the trial court’s decision to
reject the contention as not credible. The appellate division
specifically rejected Turner’s argument that expert testimony
was required to authenticate his signature and held (consistent
with established law (Evid. Code, § 1417)) that the trial court was
entitled to make its own determination regarding the
genuineness of handwriting based on the evidence presented.
C. Subsequent Events and This Lawsuit
Although the unlawful detainer matter proceeded to
judgment and subsequent affirmance, it appears Turner was not
at that time ejected from the property. Instead, Prestige Default
Services would record a Notice of Default years later, in
September 2016, asserting Diversified was in arrears on the
previously executed deed of trust. Prestige recorded a Notice of
Trustee’s Sale in January 2017. Defendant and respondent Duke
Partners II, LLC (Duke Partners) was the successful bidder at
the trustee’s sale. Turner asserts that Duke Partners then
commenced its own unlawful detainer proceedings and ultimately
had Turner evicted from the Property.
5
Turner then filed a civil complaint against Center Street,
Capital Cove, Diversified, and others. Several amended
complaints ensued, ultimately resulting in the operative fourth
amended complaint (the operative complaint), filed in April 2018,
that named Duke Partners as an additional defendant.
The operative complaint alleges seven causes of action:
fraud, conversion, receiving and withholding stolen property,
slander of title, wrongful foreclosure, cancellation of deed, and
quiet title. As relevant here, the fraud, conversion, and stolen
property causes of action are alleged against Khlafani and
Capital Cove, the wrongful foreclosure cause of action is alleged
against Center Street and Duke Partners, and the cancellation of
deed and quiet title causes of action are alleged against Capital
Cove, Center Street, and Duke Partners.
The wrongful foreclosure cause of action alleges Khalfani
and Capital Cove’s conduct led to an illegal sale of the Property
pursuant to the Diversified Deed that includes Turner’s allegedly
forged signature. The cancellation of deed and quiet title causes
of action similarly turn on the allegation that Khalfani forged
Turner’s signature on the Diversified Deed.4 All three causes of
action allege Center Street is a named defendant on the theory
that Center Street, as a party to the Diversified Deed that Turner
sought to cancel, was a necessary and indispensable party.
Attached as an exhibit to Turner’s operative complaint is a
Securities and Exchange Commission (SEC) complaint filed in
June 2015 against Khalfani and Capital Cove: Securities and
4
Turner alleged he was the rightful owner of the Property
and, as a result, sought cancellation of not only the allegedly
forged Diversified Deed but also of all subsequent instruments
pertaining to the Property.
6
Exchange Commission v. Capital Cove, et al., 8:15-cv-00980-JLS-
JC. The operative complaint describes the SEC action as one
brought to halt an “offering fraud” in which Khalfani and others
raised money from investors by falsely claiming to invest
proceeds in distressed real estate but instead using the money for
their own benefit.
D. Defendants’ Motions for Judgment on the Pleadings
Duke Partners defended against the operative complaint by
filing a motion for judgment on the pleadings. The motion
argued Duke Partners was entitled to judgment because the issue
of whether or not Turner signed the Diversified Deed was
previously and fully adjudicated in the earlier unlawful detainer
action Capital Cove brought against Turner. Duke Partners filed
a request for judicial notice in connection with its motion, asking
the court notice, among other things, the complaint in the
unlawful detainer action, the statement of decision following the
trial in that action, and the decision of the appellate division of
the superior court affirming the trial court’s judgment.
Turner opposed the motion, citing precedent that holds the
summary nature of unlawful detainer actions means they can
have only limited issue or claim preclusion effect and will not
prevent litigation of a subsequent action to resolve questions of
title. Turner submitted a declaration from his attorney with his
opposition, and the declaration attached a federal court summary
judgment order resolving the SEC complaint as against Khalfani.
Turner did not seek judicial notice of the order or the associated
SEC complaint.
7
The trial court granted Duke Partners’ request for judicial
notice and its motion for judgment on the pleadings.5 The court
found (1) the forgery issue that animates Turner’s lawsuit was
identical to the forgery issue resolved in the Capital Cove
unlawful detainer action, and (2) the unlawful detainer action
resulted in a final judgment on the merits. While these findings
would ordinarily justify invocation of preclusion principles, the
court additionally considered whether the nature of the unlawful
detainer action should bar resort to claim or issue preclusion.
The court specifically analyzed Wood v. Herson (1974) 39
Cal.App.3d 737 (Wood), a case in which a court of appeal affirmed
the dismissal of a case because an issue was precluded by a
judgment in a prior unlawful detainer action, and Vella v.
Hudgins (1977) 20 Cal.3d 251 (Vella), a case in which the
California Supreme Court found an unlawful detainer judgment
did not preclude a subsequent civil case.
The court concluded the scenario it confronted was more
akin to Wood than Vella, explaining the record before it was
sufficiently developed to show Turner raised the forgery issue as
an affirmative defense without objection in the unlawful detainer
action and had a fair opportunity to actually litigate the defense.
In so reasoning, the court highlighted several aspects of the
unlawful detainer court’s statement of decision, including its
explicit finding that Turner’s testimony—and specifically his
claim of a forged signature—was not credible and the reference to
5
The court noted Turner had not requested judicial notice of
the judgment against Khalfani in the SEC action. The court
added it would not have considered the judgment even if judicial
notice had been requested because the SEC action was
“irrelevant” to the issues before the court.
8
trial having taken place on four court days, which appeared
longer than a typical unlawful detainer trial. The trial court
additionally found it significant that Turner could have moved
(but did not move) to consolidate the unlawful detainer
proceeding with a civil action, which would have required the
unlawful detainer court to determine whether the issues were so
complex and intertwined with the issue of title that the entire
case should be treated as a civil action. Having determined,
without dispute, that the allegation of a forged Diversified Deed
formed the basis of causes of action alleged against Duke
Partners, the trial court found the causes of action were barred
by the doctrine of issue preclusion and Duke Partners was
entitled to judgment in its favor.
Center Street also filed a motion for judgment on the
pleadings. Center Street’s motion argued Turner’s claims were
barred by both claim preclusion and issue preclusion principles,
and we need discuss only the latter. The issue preclusion
argument, like Duke Partners’ argument, contended the issue of
whether Turner signed the Diversified Deed had been previously
and fully adjudicated in the unlawful detainer action.
Turner opposed Center Street’s motion. Turner argued the
unlawful detainer matter was decided before judgment was
rendered in the SEC action and the judgment in the SEC case
was new evidence that should bar resort to preclusion principles.
(Turner specifically requested the trial court take judicial notice
of the order granting summary judgment in the SEC matter,
which found Khalfani violated various provisions of federal
securities laws.6) Turner further argued the judgment in the
6
On appeal, but not in the trial court, Turner sought judicial
notice of the complaint in a different federal court case involving
9
unlawful detainer matter was invalid because it was never
enforced. i.e., Turner was not evicted from the Property at that
time and another unlawful detainer lawsuit was later filed to
achieve that end. Finally, Turner argued the court hearing the
unlawful detainer action did not specifically find Turner signed
the forged deed.
The trial court granted Center Street’s motion for judgment
on the pleadings on issue preclusion grounds for the same
reasons it granted Duke Partners’ motion. In doing so, it granted
Center Street’s requests for judicial notice and denied Turner’s
judicial notice request because Turner had not adequately
demonstrated the relevance of the summary judgment order in
the SEC case to the motion for judgment on the pleadings. The
court entered judgment for Duke Partners and Center Street.
II. DISCUSSION
This is one of the uncommon cases in which a judgment in
an unlawful detainer action is properly given preclusive effect in
subsequent civil litigation. The detailed statement of decision
from the prior unlawful detainer matter sufficiently indicates
Turner had a full and fair opportunity (which he exercised) over
the course of a multi-day bench trial to litigate the claim that his
signature on the Diversified Deed was not genuine. The trial
court found Turner’s testimony was not credible, and that finding
was well-supported by other evidence. This rejected forgery
claim is also the core of Turner’s civil action in this case. Because
Center Street, as well as a notice relating that other case to the
SEC action. This court denied the request citing Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444,
fn. 3.
10
the forgery issue was actually litigated and necessarily decided in
the unlawful detainer, and because the SEC action (which has
not been shown to involve any allegation of fraud by forgery)
provides no basis for refusing to apply issue preclusion principles,
the trial court was correct to grant Duke Partners’ and Center
Street’s motions for judgment on the pleadings.
A. Legal Background
“A motion for judgment on the pleadings is properly
granted when the ‘complaint does not state facts sufficient to
constitute a cause of action against that defendant.’ (Code Civ.
Proc., § 438, subd. (c)(1)(B)(ii).) The grounds for the motion must
appear on the face of the challenged pleading or from matters
that may be judicially noticed. (Code Civ. Proc., § 438, subd. (d).)
The trial court must accept as true all material facts properly
pleaded, but does not consider conclusions of law or fact,
opinions, speculation, or allegations contrary to law or facts that
are judicially noticed. [Citation.]” (Stevenson Real Estate
Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006)
138 Cal.App.4th 1215, 1219-1220.)
Issue preclusion (sometimes referred to as collateral
estoppel) prevents a party from relitigating an issue that was
finally determined in a prior judicial or quasi-judicial action.
(DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) The
doctrine applies “(1) after final adjudication (2) of an identical
issue (3) actually litigated and necessarily decided in the first
suit and (4) asserted against one who was a party in the first suit
or one in privity with that party.” (Id. at 825.)
11
We review de novo a trial court’s decision to apply
preclusion doctrine. (See, e.g., Samara v. Matar (2017) 8
Cal.App.5th 796, 803.)
B. The Trial Court Rightly Granted Judgment for
Defendants
1. The customary elements of issue preclusion are
met
Turner contends the trial court’s rulings granting the
motions for judgment on the pleadings were erroneous because
the forgery issue was not actually litigated and necessarily
decided in the unlawful detainer matter and because he believes
the unlawful detainer judgment was not final. Turner is wrong
on both points.
“An unlawful detainer action is a summary proceeding
ordinarily limited to resolution of the question of possession.
[Citation.]” (Malkoskie v. Option One Mortgage Corp. (2010) 188
Cal.App.4th 968, 973.) From this uncontroversial proposition,
however, Turner leaps to the blanket assertion that a ruling in
an unlawful detainer cannot be used to bar claims in an
unlimited civil case. That overstates things.
It is true that unlawful detainer judgments are usually
given limited preclusive effect. (Malkoskie, supra, 188
Cal.App.4th at 973.) They generally will “not prevent one who is
dispossessed from bringing a subsequent action to resolve
questions of title [citations], or to adjudicate other legal and
equitable claims between the parties [citations].” (Vella, supra,
20 Cal.3d at 255.) But, as is often the case with general rules,
there are exceptions. One such exception is for unlawful detainer
suits like the one at issue here that involve “a narrow and
12
sharply focused examination of title” in which the plaintiff-
purchaser at a trustee’s sale “must show that he acquired the
property at a regularly conducted sale and thereafter ‘duly
perfected’ his title.” (Ibid.) Judgments in this sort of unlawful
detainer case may properly bar subsequent fraud or quiet title
suits founded upon the same allegations. (Id. at 255-256; see also
id. at 256-257 [“‘[F]ull and fair’ litigation of an affirmative
defense—even one not ordinarily cognizable in unlawful detainer,
if it is raised without objection, and if a fair opportunity to
litigate is provided—will result in a judgment conclusive upon
issues material to that defense”]; Ayala v. Dawson (2017) 13
Cal.App.5th 1319, 1327 [issue preclusion can be triggered by
unlawful detainer proceedings “if the party to be bound agreed
expressly or impliedly to submit an issue to prior adjudication
[citation] and had a full and fair opportunity to litigate [citation]
under circumstances affording due process protections
[citation]”].)
Our high court in Vella discussed Wood, supra, 39
Cal.App.3d as an example of a case where unlawful detainer
proceedings were appropriately given preclusive effect in later
litigation. The plaintiff in Wood had asserted an affirmative
defense of fraud in a prior unlawful detainer action that was
substantively identical to one of the causes of action it asserted in
the civil action being appealed. (Id. at 740.) The Wood unlawful
detainer differed from a normal unlawful detainer in many
respects, including “the length of the ‘summary’ unlawful
detainer hearing (seven days), the scope of discovery by the
parties (‘extensive’ and ‘complete’), the quality of the evidence
(‘detailed’), and the general character of the action
(‘[clearly] . . . not the customary unlawful detainer proceeding’).
13
[Citation.]” (Vella, supra, 20 Cal.3d at 256.) The unlawful
detainer record in Wood permitted the court to conclude “there
[would] be no miscarriage of justice” if the unlawful detainer
judgment were found to have preclusive effect, because the
“Woods have had their day in court.” (Wood, supra, at 745.)
In contrast, the circumstances of the unlawful detainer in
Vella itself did not warrant giving the judgment preclusive effect
over a fraud claim involving activities not directly related to the
technical regularity of a trustee’s sale. The record of the
unlawful detainer proceeding contained neither a transcript of
the hearing nor any findings of fact or conclusions of law, other
than a notation in a minute order that Vella had not proved her
affirmative defenses of waiver, estoppel, and tender. (Vella,
supra, 20 Cal.3d at 258.) The estimated length of the unlawful
detainer trial (two hours) when compared with the length of the
trial in the subsequent civil action (four days) created a strong
inference that the former proceeding was a “conventional”
unlawful detainer action, unlike the proceedings in Wood. (Ibid.)
The record before us does not have everything that the
record had in Wood, but what we do have is adequate to conclude
the issue of whether the Diversified Deed was forged was actually
litigated and necessarily, finally decided in the unlawful detainer
action. The statement of decision reflects the unlawful detainer
proceedings lacked the ordinary summary character: trial
proceeded over the course of at least two court days;7 both sides
were represented by counsel; and the court ruled on motions,
7
The unlawful detainer court’s statement of decision reflects
the trial commenced on May 21, 2015, and ended on May 26,
2015. The appellate division of the superior court stated the trial
was held over two court days.
14
heard testimony, and considered and decided objections to
evidence. More importantly, the statement of decision reflects
the issue of the alleged forged deed was thoroughly explored in
trial testimony. Turner denied the signature on the Diversified
Deed was his, but he admitted a signature on another document
before the court was his own. The court expressly found Turner’s
testimony lacked credibility. It also expressly stated it reviewed
the signatures and exhibits before it, the certified notarizations,
and Clarke’s testimony (which the court did find credible) and
concluded all the documents concerning the Property with what
appeared to be Turner’s signature were in fact signed by him.
While the record of the unlawful detainer proceedings we have
does not include pleadings other than the complaint (such as the
answer or some of the motions the statement of decision
references) or a transcript of the trial, the statement of decision is
sufficiently detailed to permit a reliable conclusion that the
question of whether the Diversified Deed was forged was fully
litigated in the unlawful detainer proceeding.
2. The SEC complaint is not new evidence that
would justify declining to invoke issue
preclusion
Turner contends the SEC action, which was filed the month
after the statement of decision was rendered in the unlawful
detainer matter, constituted new facts or changed conditions such
that issue preclusion should not apply. (See generally Evans v.
Celotex Corp. (1987) 194 Cal.App.3d 741, 748 [“Res judicata or
collateral estoppel ‘was never intended to operate so as to prevent
a re-examination of the same question between the same parties
where, in the interval between the first and second actions, the
15
facts have materially changed or new facts have occurred which
may have altered the legal rights or relations of the litigants’”]
(Evans); but see Direct Shopping Network, LLC v. James (2012)
206 Cal.App.4th 1551, 1561 [citing Evans and explaining that
“new evidence, however compelling, is generally insufficient to
avoid application of collateral estoppel . . .”].)
The core problem with Turner’s argument is that the sole
document from the SEC action that was before the trial court (the
complaint) does not refer to the Property and—more important—
does not allege the existence of a scheme by Khalfani to obtain
investors’ real property through forgery. Rather, it alleges
Khalfani defrauded investors by making false statements
regarding the nature of what was advertised as an investment
opportunity.8 The SEC complaint accordingly does not reveal
new facts or changed circumstances relevant to Turner’s forgery-
based claims in his civil suit, nor does it undermine the evidence
in the record indicating the forgery question was fully and fairly
litigated in the unlawful detainer action.
3. Turner’s remaining arguments to avoid issue
preclusion are meritless
Turner also argues, for the first time on appeal, that he did
not agree to submit the issue of whether the Diversified Deed was
forged for prior adjudication. Whether Turner agreed to submit
the issue is a question of fact, and because Turner did not make
argument in the trial court, he cannot now raise it for the first
8
We address, post, Turner’s argument that the trial court
erred by declining to take judicial notice of the SEC action
summary judgment order in connection with Center Street’s
motion for judgment on the pleadings.
16
time on appeal. (See, e.g., Krechuniak v. Noorzoy (2017) 11
Cal.App.5th 713, 725.) In any event, Turner’s assertion is belied
by the statement of decision, which memorializes the unlawful
detainer court’s willingness to permit Turner to argue and
present evidence regarding his defense that Capital Cove had not
perfected title to the Property—including because (and perhaps
only because) the Diversified Deed was forged. Putting a defense
in issue is tantamount to express consent to submit the issue for
decision.
Turner also contends issue preclusion principles should not
apply because the unlawful detainer court’s statement of decision
makes a finding only that Turner signed “all these documents”
and does not specifically enumerate the Diversified Deed as a
document Turner signed.9 As Turner seems to read the
9
Here is what the statement of decision says in this regard:
“[T]urner denied that the signature on Exhibit 7 [a certified copy
of the Diversified Deed] was his and denied his signature on any
of the multiple documents relating to the [Property] . . . . He did
accept that Ex. K contains his signature. [Capital Cove]’s
witness Clarke testified that he spoke with Turner about a short
sale on behalf of Diversified in the last quarter of 2013, was a
manager on the short sale and reviewed earlier work of others,
and personally met with Turner in 2014. He said Turner was
‘upside down’ on the [Property] owing a home equity loan to Wells
Fargo bank and wanted to get out of the debt. [¶] . . . [¶] The
court admitted as business records various documents which
Capit[a]l Cove and its predecessor in title Diversified had relied
[on] in purchasing the [Property], including: (1) Ex. 10 the Short
Form Deed of Trust establishing the home equity loan by Wells
Fargo which was subsequently reconveyed by Ex. J; (2) a letter of
January 10, 2014, from Wells Fargo (Ex. 1) approving a short
sale in the amount of $175,000 to Buyer Diversified which would
fully resolve Turner’s home equity loan in excess of $303,000; (3)
17
statement of decision, the unlawful detainer court found only
that he signed the exhibits identified earlier in the same
paragraph in which the court makes its finding that Turner
signed “all the documents.” Reading the statement of decision in
this limited manner, however, makes no sense in context. Some
of the documents identified in that paragraph were not even
purportedly signed by Turner, and the viability of Turner’s
asserted forgery defense turned on whether he signed the
Diversified Deed, as the court earlier acknowledged in the
statement of decision itself. Since the trial court found for
Capital Cove, it necessarily concluded both that Turner’s defense
was unmeritorious, and that he had, in fact, signed the
purportedly forged deed.
Turner further contends issue preclusion cannot apply
because there was no final adjudication. That is rather obviously
belied by the record. The unlawful detainer matter proceeded to
final judgment. Turner appealed to the appellate division and
the appellate division affirmed. No more is necessary for finality.
a letter of May 23, 2013, from Turner (Ex. 11) to “to whom it may
concern” stating that he needed a short sale to save him from
foreclosure; (4) a form “Making Home Affordable” application
signed by Turner on 4/30/13; (5) a Grant Deed signed November
15, 2013 by . . . Turner (Ex. O) by which Turner transferred the
[Property] to himself as Trustee of the . . . Trust. The date of the
Wells Fargo reconveyance on February 20, 2014 (Ex. J) is
consistent with all of the above exhibits. Turner denied signing
these documents but the court found Turner’s testimony in this
respect lacked credibility and reviewing the signatures as well as
the exhibits, the certified notarizations, and Mr. Clarke’s
testimony found that all these documents were in fact signed
by . . . Turner as indicated.”
18
In particular, while Turner emphasizes (without citation to the
record) that no writ of execution was issued following the
judgment and Duke Partners subsequently filed additional
unlawful detainer actions against Turner, failure to execute on a
judgment does not affect the validity of the judgment itself.10
10
Turner makes a separate, but related, argument that the
trial court erred by denying his request for judicial notice of
documents related to the SEC Action and asks that we reverse
the trial court’s rulings. The argument does not apply to Duke
Partners’ motion for judgment on the pleadings because he did
not file a request for judicial notice in connection with that
motion. But as to Center Street’s motion, the trial court denied
Turner’s request for judicial notice on the ground that the
documents he sought to notice were irrelevant. This is a proper
ground for denial (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7
Cal.4th 1057, 1063) and the trial court did not abuse its
discretion in so ruling. The summary judgment order Turner
proffered for judicial notice finds Khalfani violated various
provisions of federal securities laws. While it may accordingly be
considered evidence of fraudulent activity, there is nothing to
suggest the fraud was accomplished by means of forgery. And
forgery is the sole predicate of Turner’s lawsuit that we are
concerned with here.
19
DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
20