Barbaccia v. GBR Magic Sands MHP CA2/7

Filed 1/11/23 Barbaccia v. GBR Magic Sands MHP CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
LOUIS P. BARBACCIA, SR., as Trustee, B322596
etc. et al.,
(Santa Clara County
Plaintiffs and Respondents Super. Ct. No.
17CV313947)
v.
ORDER MODIFYING
GBR MAGIC SANDS MHP, LLC, OPINION AND
DENYING PETITIONS
Defendant and Appellant. FOR REHEARING
[NO CHANGE IN
JUDGMENT]
THE COURT:
The opinion filed December 16, 2022, and not certified for
publication, is modified as follows:
1. On page 46, second paragraph, line 1, the word “has” is
changed to “may have,” and on line 2, the word
“uncontradicted” is deleted, so that the sentences read:
GBR may have a point, but not one that warrants reversal.
GBR presented evidence the 2007 lease agreements and related
documents describe the property encumbered by the leases as
including Parcel Eight.
2. On page 46, lines 10-11, delete the sentence:
Therefore, “all of” lot 26, as described in the leases, includes
Parcel Eight.
3. On pages 46-47, footnotes 21 and 22 are deleted.
The petitions for rehearing are denied.
This order does not change the appellate judgment.
PERLUSS, P. J. SEGAL, J.
FEUER, J.
2
Filed 12/16/22 Barbaccia v. GBR Magic Sands MHP CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
LOUIS P. BARBACCIA, SR., as B322596
Trustee, etc. et al.,
(Santa Clara County
Plaintiffs and Respondents Super. Ct. No. 17CV313947)
v.
GBR MAGIC SANDS MHP, LLC,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Santa
Clara County, Thang N. Barrett, Judge. Reversed with
directions.
Morgan Franich Fredkin Siamas & Kays, William Siamas,
David A. Kays and Mark B. Fredkin for Defendant and
Appellant.
Hopkins & Carley, David W. Lively, Allonn E. Levy and
Ryan Cunningham; Gates Eisenhart Dawson, Marc A. Eisenhart
and James L. Dawson for Plaintiffs and Respondents.
INTRODUCTION
Since 2007 brothers Louis P. Barbaccia, Sr. (Lou) and Cyril
Barbaccia (Cy) (now deceased), their two sisters, and their
respective successors, have been litigating in Santa Clara County
Superior Court over the rights to a 20-acre property in San Jose.
Lou, Cy, and their parents originally obtained the property in the
1960s, with Lou and Cy collectively holding an undivided one-half
interest in the property and the parents holding the other
undivided one-half interest. In 1963 the parents agreed to lease
their interest to Lou and Cy under a 98-year lease. The brothers
subsequently built a mobilehome park on the property.
By 2010, after a series of transactions and lawsuits,
Josephine Pecoraro (Cy and Lou’s sister), Catherine Pecoraro (Cy
and Lou’s niece; the daughter of their deceased sister, Rita), Lou,
and Loubar LLC—an entity created by Lou—collectively held, in
various shares, the one-half interest originally owned by Cy and
Lou’s parents. GBR Magic Sands MHP, LLC—an entity created
by Cy to operate the mobilehome park—held the right to lease
that one-half interest under the 1963 lease. Loubar separately
owned the collective one-half interest originally owned by the
brothers, which GBR also held the right to lease under two
separate agreements.
In 2010 Josephine and Catherine (backed by Lou) filed an
action in Santa Clara County Superior Court to cancel the
1963 lease and to quiet title to the one-half undivided interest
originally owned by Cy and Lou’s parents. (Pecoraro v. GBR
Magic Sands MHP, LLC (Super. Ct. Santa Clara County, 2013,
No. 1-10-CV-186621) (the Pecoraro action).) Josephine and
Catherine prevailed. The trial court in that action ruled Cy
2
obtained the 1963 lease from his parents by “undue influence,”
and in 2013 the court entered a judgment canceling the lease,
quieting title in favor of Josephine, Catherine, and Lou, and
ordering GBR to relinquish possession of the one-half interest in
the property originally owned by Cy and Lou’s parents and
previously encumbered by the 1963 lease. In October 2016 the
Sixth District Court of Appeal affirmed that judgment. (See
Pecoraro v. Barbaccia (Oct. 18, 2016, H040008, H040222)
[nonpub. opn.].)
GBR, however, did not relinquish possession of the
property. It continued to operate the mobilehome park and lease
mobilehome lots on the property to tenants. In 2018 Loubar,
Lou, Catherine, and Vivian Martorana (the Loubar plaintiffs)1
filed this action against GBR seeking mesne profits from GBR’s
continued possession of the Loubar plaintiffs’ undivided one-half
interest in the property.2 GBR, in turn, filed a cross-complaint
1 Josephine died in 2016, and Martorana sued as trustee of
the Josephine Pecoraro Trust. Lou similarly sued as trustee of
the Louis P. Barbaccia Sr. Inter Vivos Trust.
2 Mesne profits are recoverable from a trespasser or other
wrongful possessor of land and include the “value of the rents,
issues and profits of the land during a certain period.” (Haggin v.
Clark (1875) 51 Cal. 112, 115; see Pocono Realty Co. v. Lamar
Advertising Co. (3d Cir. 2010) 395 Fed.Appx. 903, 904 [mesne
profits are “[t]he profits of an estate received by a tenant in
wrongful possession between two dates”].) “Mesne,” pronounced
“mean,” is a medieval French legal term meaning “intermediate.”
(Davis v. L.N. Dantzler Lumber Co. (1923) 261 U.S. 280, 283;
Larsson v. Grabach (2004) 121 Cal.App.4th 1147, 1151; ODonnell
v. Harris County, Texas (S.D.Tex. 2017) 251 F.Supp.3d 1052,
1070, fn. 6.)
3
seeking declaratory relief to allow it to occupy the entire property
and continue operating the park. Following a nonjury trial, the
trial court ruled in favor of the Loubar plaintiffs and awarded
them over $5 million in damages.
GBR makes several arguments on appeal, which generally
involve some version of the argument that the judgment in the
Pecoraro action quieting title to the Loubar plaintiffs’ one-half
interest had no practical effect on GBR’s right to possess the
property. As we explain, those arguments lack merit, and GBR is
liable for damages caused by continuing to possess or occupy the
property to the exclusion of the Loubar plaintiffs after the date
the Pecoraro judgment became enforceable. GBR may not
relitigate whether it has any rights in the Loubar plaintiffs’ one-
half interest.
GBR, however, is partially correct on one of its arguments:
Claim preclusion bars the Loubar plaintiffs from recovering
damages from GBR’s possession of the property before the
judgment in the Pecoraro action became enforceable, which as we
explain was not until the Sixth District Court of Appeal issued its
remittitur on January 12, 2017. If the Loubar plaintiffs wanted
to seek damages for GBR’s possession of the property before that
date, they had to seek those damages in the Pecoraro action.
Thus, by awarding the Loubar plaintiffs damages for GBR’s
possession of the property as far back as August 2012, the trial
court erred.
GBR is also correct on an argument that affects part of the
property at issue in this appeal: Substantial evidence did not
support the trial court’s ruling in favor of the Loubar plaintiffs on
their third cause of action, in which the Loubar plaintiffs sought
damages for GBR’s alleged possession of a vacant lot on land the
4
parties refer to as Parcel Eight. The Loubar plaintiffs did not
prove GBR occupied or excluded the Loubar plaintiffs from Parcel
Eight during the relevant time period.
Therefore, we reverse the judgment and direct the trial
court to conduct a new trial on damages, limited to damages
incurred after January 12, 2017. After the new trial, the court is
directed to enter a new judgment that, among other things, finds
in favor of GBR on the Loubar plaintiffs’ third cause of action and
in favor of the Loubar plaintiffs on GBR’s cross-complaint.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Property
Philip and Josephine Greco Barbaccia had four children:
Cy, Lou, Josephine, and Rita. In December 1960 the parents
purchased a 20-acre orchard in San Jose (the Property) and
transferred an undivided one-fourth interest in the Property to
each of Cy and Lou. Cy and Lou formed a business partnership,
which held their collective one-half interest (the partnership’s
one-half interest). The parents kept the remaining one-half
interest. Over the next few years, Cy and Lou bought 36
additional acres adjacent to the Property. In 1963 the parents
leased their one-half interest in the Property to the brothers for
98 years.
The Property contains three parcels: Parcel One, Parcel
Three,3 and Parcel Eight. Cy and Lou developed the Magic Sands
3 It appears Parcel Three was not part of the original 20
acres the parents purchased. At some point the City of San Jose
initiated a condemnation proceeding and obtained a portion of
5
Mobile Home Park on Parcel One, Parcel Three, and the adjacent
36 acres. For many years they leased Parcel Eight to Standard
Oil Company, and then to Standard Oil’s successor, Chevron
USA, for a gas station.
After both parents died, Cy, Lou, Josephine, and Rita’s two
children, Anthony and Catherine Pecoraro, inherited the parents’
interest in the Property: Cy, Lou, and Josephine each inherited
an undivided one-eighth interest in the Property (one-fourth of
the parents’ one-half interest), and Catherine and Anthony each
inherited an undivided one-sixteenth interest in the Property
(one-eighth of the parents’ one-half interest.)4 Anthony sold his
interest to Cy, giving Cy an undivided three-sixteenth interest.
The collective one-half interest in the Property that Cy, Lou,
Josephine, and Catherine obtained from the parents remained
encumbered by the 1963 lease. Cy and Lou’s company, Barbaccia
Properties L.P., held the partnership’s one-half interest, which
was not encumbered by the 1963 lease.
the original 20 acres, but added adjacent land to the property the
County of Santa Clara’s records and parties refer to as Parcel
Three.
4 Catherine and Anthony inherited their interests through
their mother, Rita, who predeceased her mother, Josephine Greco
Barbaccia. Anthony and Catherine have the same last name as
their aunt, Josephine Pecoraro, because both Josephine and Rita
married men with the last name Pecoraro.
6
B. Loubar Obtains Cy’s Interest in the Property, Plus the
Partnership’s One-half Interest, Pursuant to a
Partition
Cy and Lou’s partnership came to an end. In 2006 Cy and
new business partners purchased the partnership’s one-
half interest from Barbaccia Properties. Cy then orchestrated a
series of transfers and leases between various entities with which
he was affiliated. An entity called MHP Roll-Up ultimately
obtained the partnership’s one-half interest, and in 2007 GBR
obtained the right to lease the partnership’s one-half interest
under two lease agreements. These 2007 leases, which were
essentially between entities affiliated with Cy and gave GBR the
right to lease a one-half interest in the Property, figure
significantly in the subsequent litigation among the family
members. The 2007 leases, combined with GBR’s right to lease
the other one-half interest in the Property under the 1963 lease,
gave GBR the right to operate the mobilehome park on the entire
property.
But that would change, in two steps.
Step one: Lou, Josephine, and Catherine filed an action to
partition the Property, and the parties stipulated to a procedure
to sell the Property. Lou, Josephine, and Catherine, collectively,
submitted a successful bid, and in November 2010 the court
entered an order confirming the sale. After the sale the interests
of Lou, Josephine, and Catherine remained unchanged, while
Loubar obtained all of Cy’s interest in the Property, plus the
partnership’s one-half interest. At that point, the ownership
interests in the Property were as follows: Loubar owned the
partnership’s undivided one-half interest and Loubar, Lou,
Josephine, and Catherine owned the remaining undivided three-
7
sixteenth, one-eighth, one-eighth, and one-sixteenth interests,
respectively. GBR continued to have the right to operate the
park under the three leases: the two 2007 leases, which granted
GBR the right to lease the partnership’s one-half interest (now
owned by Loubar), and the 1963 lease, which granted GBR the
right to lease the one-half interest originally owned by Cy and
Lou’s parents (and now owned by the Loubar plaintiffs).
C. Catherine and Josephine Successfully Sue To Cancel
the 1963 Lease and Quiet Title to the Loubar
Plaintiffs’ Collective One-half Interest
Step two: In 2010 Josephine and Catherine, with Lou’s
support and funding, filed the Pecoraro action against GBR and
Cy asserting, among other things, a cause of action seeking to
cancel the 1963 lease and a cause of action to quiet title to the
Loubar plaintiffs’ interests in the Property free and clear of any
adverse claims.5 Josephine and Catherine alleged that, when Cy,
Lou, and their parents (i.e., Philip and Josephine Greco
Barbaccia) entered into the lease almost 50 years ago, Cy
“occupied an intimate and confidential relationship with his
parents,” “exert[ed] undue influence” on them, and “fraudulently
obtain[ed]” the lease, the terms of which “were unfair” and
“substantially below market value . . . .” Initially, Josephine and
Catherine also sought damages for Cy and GBR’s operation of the
mobilehome park on the Property pursuant to the 1963 lease, but
during the litigation they abandoned those damages claims.
In May 2013, following a nonjury trial, the trial court in the
Pecoraro action entered judgment in favor of Josephine and
5 Josephine and Catherine named Lou as a nominal
defendant, but Lou did not oppose their claims.
8
Catherine. The court ruled that Cy had a confidential and
fiduciary relationship with his parents when he, Lou, and their
parents executed the 1963 lease and that Cy gained an unfair
advantage because the lease terms were below fair market
value. The court ruled that “the fee title holders to the
Property”—Loubar, Lou, Catherine, and Josephine—were
“entitled to cancellation of the 1963 lease” and “possession of” the
collective one-half “interest in the Property previously subject to
the 1963 lease.”6 The court also ruled GBR and Cy had “no right,
title or interest” in the Loubar plaintiffs’ one-half interest and
enjoined them “from making any further adverse claims to said
interest in the Property . . . .” Finally, the court ordered GBR to
“forthwith relinquish possession of” the Loubar plaintiffs’
“undivided fifty percent leasehold interest in the Property . . . .”
GBR and Cy filed a notice of appeal and sought to stay
enforcement of the judgment pending appeal. The trial court set
the bond at $544,000, which the court found represented
Josephine and Catherine’s estimated lost income from the
Property between May 2013 and June 2015. GBR posted the
bond, and the trial court in the Pecoraro action stayed
enforcement of the judgment pending appeal. In October 2016
the Sixth District Court of Appeal affirmed the Pecoraro
6 As we will explain, the court referred to the undivided
one-half interest originally owned by Cy and Lou’s parents (i.e.,
the Loubar plaintiffs’ one-half interest) as the interest
“previously subject to the 1963 lease” to distinguish it from the
remaining undivided one-half interest (i.e., the partnership’s
one-half interest), which GBR separately held the right to lease,
but which the 1963 lease did not encumber. The court in the
Pecoraro action did not adjudicate any leasehold or ownership
rights in the partnership’s one-half interest.
9
judgment, and on January 12, 2017 (a key date in this appeal)
issued its remittitur.
D. The Loubar Plaintiffs File This Action To Recover
Damages After GBR Continues To Possess the
Property
The Loubar plaintiffs filed this action in Santa Clara
County Superior Court after the Sixth District Court of Appeal
issued its remittitur in the Pecoraro action. The Loubar plaintiffs
alleged that, “as a consequence of the [j]udgment” in the Pecoraro
action, GBR “no longer enjoyed any rights or benefits under the
1963 Lease,” including the right to possess their undivided one-
half interest. The Loubar plaintiffs alleged that, despite the
Pecoraro judgment, GBR had “entirely maintained control and
possession” of their one-half interest by continuing to control the
management and operation of the mobilehome park and by
continuing to “collect and keep for itself 100% of the gross rents”
and income derived from the park. The Loubar plaintiffs
asserted three causes of action against GBR—one for each of
Parcels One, Three, and Eight—seeking mesne profits as
damages. The Loubar plaintiffs filed similar causes of action for
declaratory relief, seeking an order that they were entitled to a
proportional share of GBR’s net operating income from the
mobilehome park.
GBR filed a cross-complaint, asserting various causes of
action for declaratory relief. Among other things, GBR sought a
declaration that it was “entitled to occupy and use the entire
20 Acres” of the Property “and not merely some portion thereof”
and that its “occupation of the Property and operation of Magic
10
Sands does not violate or infringe on any right” of the Loubar
plaintiffs.
At trial the Loubar plaintiffs presented evidence that after
the judgment in the Pecoraro action GBR continued to operate
the mobilehome park. John Guerra, Jr., GBR’s chief executive
officer and manager, admitted that after January 2017 GBR
continued to lease lots in the park. He also admitted GBR raised
the rent on all existing leases and entered into multiple new
leases without obtaining the Loubar plaintiffs’ consent. The
leases granted tenants the exclusive right to occupy the mobile
home lots. Guerra also testified that the Loubar plaintiffs asked
GBR to allow them to use some unoccupied offices in a clubhouse
located in the park, but that he denied the request.
Cindy Gurtowski, the successor trustee of the Josephine
Pecoraro Family Trust,7 testified someone put up an “ugly cyclone
fence” around Parcel Eight without her permission.8 Guerra
testified the purpose of the fence, which is adjacent to a street
and sidewalk, was to keep people who were homeless off the
property.
GBR raised several related defenses to the Loubar
plaintiffs’ complaint. First, GBR argued the judgment in the
Pecoraro action barred the Loubar plaintiffs from seeking
damages for GBR’s occupation of the Property (even though the
Pecoraro judgment quieted title in favor of the Loubar plaintiffs
7 Martorana died in 2018. Gurtowski substituted into the
action as the successor trustee of Josephine’s trust.
8 A cyclone fence is a steel wire mesh or chain link fence.
(See Carlstrom v. Lyon Van & Storage Co. (1957) 152 Cal.App.2d
625, 628.)
11
and ordered GBR to relinquish possession of the Loubar
plaintiffs’ one-half interest) because the Loubar plaintiffs could
have sought damages in that action. Second, GBR argued the
2010 partition order established that the 2007 leases granted
GBR the right to occupy the entire Property—not just the
partnership’s one-half interest—and therefore precluded the
Loubar plaintiffs from contesting GBR’s right to occupy the
Property. Third, GBR argued that (regardless of whether the
partition order had any preclusive effect) the Loubar plaintiffs
“consented” to having GBR occupy the entire Property under the
2007 leases.
E. The Trial Court Rules for the Loubar Plaintiffs
The trial court found in favor of the Loubar plaintiffs on
each of their causes of action. In its statement of decision the
court found that after the judgment in the Pecoraro action GBR
“occupied the Property to the exclusion of Plaintiffs” by “renewing
mobile home tenant leases without notice to Plaintiffs, without
listing Plaintiffs as co-landlords, without Plaintiffs’ consent, and
without mentioning Plaintiffs’ possessory interest in the
Property.” The court ruled that, by doing so, GBR failed to
comply with the portion of the judgment directing it to relinquish
possession of the Loubar plaintiffs’ one-half interest in the
Property and enjoining GBR from making further adverse claims
to the Property.
The trial court rejected GBR’s defenses. In particular, the
court ruled the Pecoraro judgment barred GBR from contending
it had the right to possess the Loubar plaintiffs’ one-half interest
under the 2007 leases or as a result of the 2010 partition order.
The court further ruled the doctrine of claim preclusion did not
12
bar the Loubar plaintiffs from seeking damages for GBR’s
possession of the Property after the Pecoraro judgment “because
the complained[-]about conduct of GBR as well as the damages
sought arose after the effective date” of the judgment. The court
reasoned that, under GBR’s theory, the judgment canceling the
lease and quieting title in favor of the Loubar plaintiffs would
have “no effect or consequences for the parties” and would
actually leave GBR in a better position because “its exclusive use
of the property [would] remain[ ] undisturbed, but without the
burdens of being a lessee”—and therefore paying rent—“under
the 1963 Lease.”
The trial court entered judgment in favor of the Loubar
plaintiffs and against GBR on each of the causes of action in the
Loubar plaintiffs’ complaint and on each of the causes of action in
GBR’s cross-complaint. Relying on the testimony of a certified
general appraiser who analyzed Magic Sands’ operating income,
the court awarded the Loubar plaintiffs $5,548,876 in damages
“for the period from August 3, 2012 through June 20, 2019,”
consisting of $5,047,451 for the Loubar plaintiffs’ proportionate
share of the income generated by Magic Sands and $501,425 for
the reasonable rental value of Parcel Eight. The court also
awarded the Loubar plaintiffs $2,147 as daily damages until the
entry of judgment. GBR timely appealed. In August 2022 the
appeal was transferred to this district.
DISCUSSION
A. Standard of Review
On appeal from a judgment based on a statement of
decision following a court trial, we “review questions of law
de novo and we review the trial court’s findings of fact under the
13
substantial evidence standard.” (Gajanan Inc. v. City and County
of San Francisco (2022) 77 Cal.App.5th 780, 791-792; see
Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) “We
construe findings of fact liberally to support the judgment;
consider the evidence in the light most favorable to the judgment;
draw all reasonable inferences in support of the findings; and
infer that the trial court ‘“impliedly made every factual finding
necessary to support its decision.”’” (Gajanan, at pp. 791-792; see
Thompson, at p. 981; Barickman v. Mercury Casualty Co. (2016)
2 Cal.App.5th 508, 516.)
B. The Trial Court’s Ruling That GBR Violated the
Pecoraro Judgment Was Partially Correct
As discussed, the Pecoraro judgment stated the Loubar
plaintiffs were “entitled to . . . possession” of their undivided
one-half interest and ordered GBR to “relinquish possession of,”
and make no further claims adverse to, that interest. The trial
court in this action ruled GBR did not relinquish possession of
the Loubar plaintiffs’ one-half interest in Parcels One and
Three—the parcels on which the mobilehome park sits—or the
Loubar plaintiffs’ one-half interest in Parcel Eight. The former
ruling was correct; the latter was not.
1. GBR Failed To Relinquish Possession of Parcels
One and Three
The trial court ruled GBR failed to relinquish possession of
the Loubar plaintiffs’ one-half interest in Parcels One and Three
because GBR continued to lease mobilehome lots to tenants,
granted tenants exclusive possession of the lots, and refused to
allow the Loubar plaintiffs to use offices in the clubhouse. The
14
parties do not dispute GBR has the right to lease the
partnership’s undivided one-half interest under the 2007 leases.
GBR appears to contend that, because it has the right to lease an
undivided one-half interest (the partnership’s interest) in the
parcels under the 2007 leases, its conduct did not violate the
judgment. GBR is incorrect.
In general, a tenant “equally is entitled to share in the
possession of the entire property” with a cotenant.9 (Zaslow v.
Kroenert (1946) 29 Cal.2d 541, 548.) But “neither may exclude
the other from any part of it.” (Id. at p. 548; see Tom v. City
& County of San Francisco (2004) 120 Cal.App.4th 674, 676;
Munkdale v. Giannini (1995) 35 Cal.App.4th 1104, 1114.) “An
ouster . . . is the wrongful dispossession or exclusion by one
tenant of his cotenant or cotenants from the common property of
which they are entitled to possession,” such as by “claiming the
whole for himself, denying the title of his companion, or refusing
to permit him to enter.” (Zaslow, at p. 548; see Hacienda Ranch
Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122,
1128.)
Substantial evidence supported the trial court’s finding
GBR dispossessed the Loubar plaintiffs from their undivided
one-half interest in Parcels One and Three (i.e., refused to
relinquish possession). GBR’s chief executive officer, Guerra,
admitted that the Loubar plaintiffs asked if they could use some
9 The trial court ruled that, because GBR held the right to
lease the partnership’s undivided one-half interest and the
Loubar plaintiffs owned the other undivided one-half interest
previously owned by Cy and Lou’s parents, GBR and Loubar were
“similarly situated” to cotenants—a proposition neither party
disputes.
15
of the offices in the mobilehome park and that he did not allow
them to. That testimony, without more, was substantial evidence
to support the court’s finding. (See Greer v. Tripp (1880) 56 Cal.
209, 212 [“a refusal, after a proper demand by a tenant in
common in possession to admit his co-tenant into the possession,
is itself an ouster, and dispenses with the necessity of further
proof on that point”]; Wood v. Henley (1928) 88 Cal.App. 441, 454
[ouster includes the “refusal of a tenant in possession on a proper
demand, to let his cotenant into possession”].)10
But there was more: GBR continued to lease lots in the
mobilehome park. A cotenant may not enter into a lease that
purports to grant the lessee exclusive possession of property
without obtaining the consent of the other cotenants. (See King
v. Oakmore Homes Assn. (1987) 195 Cal.App.3d 779, 783 [because
“‘[o]ne cotenant cannot, without special authority from the other
cotenants, encumber the entire estate’ . . . absent the cotenant’s
consent, a tenant may not . . . contract with third persons
concerning the common property”]; Kraemer v. Kraemer (1959)
167 Cal.App.2d 291, 307 [“[a]n entry by a grantee under a deed
from a cotenant in exclusive possession, which purports to convey
the whole of the property, without notice of the cotenancy, is
presumed to be the assertion of an exclusive right in severalty”
and “constitutes an ouster of the cotenants out of possession”].) It
was undisputed that, after the Court of Appeal in the Pecoraro
10 GBR asserts the request was a “ruse” manufactured by the
attorneys for the Loubar plaintiffs. If it was a ruse, it was a good
one. Regardless of who came up with the idea to ask about using
the offices, GBR’s response demonstrated it was “claiming the
whole” of Parcels One and Three and “refusing to permit” the
Loubar plaintiffs to enter the property. (Zaslow v. Kroenert,
supra, 20 Cal.2d at p. 548.)
16
action issued its remittitur affirming the judgment, GBR
continued to lease mobilehome lots to tenants and granted them
exclusive possession of the lots. GBR concedes it refused to
relinquish possession, asserting it was “impossible for GBR to
operate Magic Sands and simultaneously ‘relinquish’ or ‘get off of’
Plaintiffs’ undivided interest.” That is, essentially, the Loubar
plaintiffs’ point.
And still more: It was undisputed GBR did not share with
the Loubar plaintiffs any of the rental income GBR received from
the leases. That too supported the trial court’s finding GBR
excluded the Loubar plaintiffs from Parcels One and Three. (See
Dabney-Johnston Oil Corp. v. Walden (1935) 4 Cal.2d 637, 656
[“where one of several cotenants . . . receives rents from third
persons for the use of the land, he must account to his cotenants
for their share”]; Edwards v. Edwards (1949) 90 Cal.App.2d 33,
43 [where cotenants could not share physical possession of
property, a cotenant would “have to account to [the other
cotenant] for [his] share of the rentals received”]; see also
Boccanfuso v. Green (Conn.App. 2005) 880 A.2d 889, 313-314 [“By
ouster is not meant a physical eviction, but a possession attended
with such circumstances as to evince a claim of exclusive right
and title, and a denial of the right of the other tenants to
participate in the profits.”]; cf. Graybiel v. Burke (1954)
124 Cal.App.2d 255, 265 [cotenant’s “acts in contracting to
sell all of the merchantable timber” on property, “and in engaging
[a third party] to conduct the logging operations, manifested an
intention on his . . . part to hold exclusively for himself and
amounted to an ouster of the other cotenants”].)
17
2. GBR Did Not Fail To Relinquish Possession of
Parcel Eight
The trial court also ruled GBR violated the Pecoraro
judgment because GBR “excluded [the Loubar] Plaintiffs from
Parcel Eight.” Substantial evidence did not support that finding.
The only evidence the Loubar plaintiffs submitted at trial
that GBR excluded them from Parcel Eight was testimony (and a
picture showing) GBR erected an “ugly” cyclone fence around the
parcel. That was not enough. Because, as a tenant under the
2007 leases, GBR held the right to possess an undivided one-half
interest in the parcel, it had the right to use the entire property—
including keeping other people off the property—so long as GBR
did not also exclude the Loubar plaintiffs. (See Morin v. City
Council of City of San Jose (1952) 109 Cal.App.2d 268, 271 [“[o]ne
cotenant can at any time protect the entire estate from injury or
loss without calling to his aid the assistance of the other
cotenants,” including “resist[ing] an intruder, or evict[ing] a
trespasser”].) Had the Loubar plaintiffs submitted evidence GBR
erected the fence to keep them off the property, such evidence
may have been sufficient to show GBR refused to relinquish
possession. But they did not. There was no evidence that the
Loubar plaintiffs could not access Parcel Eight, that GBR denied
a request by the Loubar plaintiffs to access the parcel, or that
GBR erected the fence for any reason other than to exclude
trespassers. (See Estate of Hughes (1992) 5 Cal.App.4th 1607,
1613 [where cotenant “manifest[ed] neither an intent to share
possession nor to deprive other cotenants from sharing
possession,” the trial court “properly decided that absent any
evidence [cotenant] actually excluded [other cotenants], it could
not find an ouster”]; see also Askley v. Bassett (1922) 189 Cal.
18625, 642 [ouster requires “acts of the most open and notorious
character, clearly giving notice . . . to all having occasion to
observe the condition and occupancy of the property, that the
intention is to exclude, and does exclude the cotenant”].)11
Moreover, Lou admitted during trial that he placed a sign
on Parcel Eight advertising the property for rent, that he in fact
leased at least a portion of Parcel Eight, and that he did not
share the rental income with GBR. Thus, the Loubar plaintiffs
were not excluded from Parcel Eight; they were actually using it
(or at least Lou was and the other Loubar plaintiffs could have).
Substantial evidence did not support the court’s finding GBR
failed to relinquish possession of Parcel Eight, and the trial court
erred in awarding the Loubar plaintiffs damages for their alleged
lost use of that property.
11 As we will discuss in more detail, the trial court, in denying
GBR’s requests for declaratory relief, appeared to rule GBR did
not have any rights to Parcel Eight, which would include the
right to lease even the partnership’s undivided one-half interest
in the parcel. The Loubar plaintiffs, however, sought relief (and
the trial court awarded damages) only on the ground that they
owned the one-half interest in Parcel Eight in which the court
quieted title in the Pecoraro action and that GBR violated the
Pecoraro judgment by failing to relinquish possession. The
Loubar plaintiffs did not allege or argue GBR’s decision to erect
the fence constituted, for example, an independent tort entitling
them to relief.
19
C. Claim Preclusion Bars Part of the Loubar Plaintiffs’
Claims
1. Applicable Law and Standard of Review
Claim preclusion, “formerly called res judicata, ‘prohibits a
second suit between the same parties on the same cause of
action.’ [Citation.] ‘Claim preclusion arises if a second suit
involves (1) the same cause of action (2) between the same parties
[or their privies] (3) after a final judgment on the merits in the
first suit.’” (Kim v. Reins Intern. California, Inc. (2020) 9 Cal.5th
73, 91; see DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813,
824.) Whether claim preclusion applies is a question of law we
review de novo. (In re Marriage of Brubaker & Strum (2021)
73 Cal.App.5th 525, 538; Johnson v. GlaxoSmithKline, Inc. (2008)
166 Cal.App.4th 1497, 1507.)
The parties do not dispute GBR satisfied the last two
elements of claim preclusion: The Pecoraro action involved the
same parties (or their privies) as those in this action and resulted
in a final judgment on the merits.12 The parties only dispute
whether this action and the Pecoraro action involve the same
cause of action.
For purposes of claim preclusion, “California law identifies
a single cause of action as ‘the violation of a single primary
right.’” (Boyd v. Freeman (2017) 18 Cal.App.5th 847, 854; see
Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 813.)
12 GBR, Lou, and Catherine were parties to the Pecoraro
action. Gurtowski, as successor trustee of Josephine’s trust, is
the successor to Josephine, who was a party to the action. And
the Loubar plaintiffs do not dispute Loubar was in privity with
Lou for purposes of claim preclusion.
20
Under the primary right theory, the “cause of action is the right
to obtain redress for a harm suffered, regardless of the specific
remedy sought or the legal theory (common law or statutory)
advanced.” (Boeken, at p. 798; see Boyd, at p. 855.) The
“determinative factor is the harm suffered. When two actions
involving the same parties seek compensation for the same harm,
they generally involve the same primary right.” (Boeken,
at p. 798; see Hi-Desert Medical Center v. Douglas (2015)
239 Cal.App.4th 717, 733; Federal Home Loan Bank of San
Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th
1520, 1531.)
GBR argues the same primary right at issue in the
Pecoraro action is at issue in this action; namely, the Loubar
plaintiffs’ right to possess their undivided one-half interest free
from the burden of the 1963 lease. GBR contends, therefore, the
Loubar plaintiffs had to seek all relief, including damages for
GBR’s continued possession of the Property, in the Pecoraro
action. In contrast, the Loubar plaintiffs argue the Pecoraro
action and this action involve different primary rights because
the two actions seek relief for different harms: in the Pecoraro
action, for harm caused by Cy’s procurement of the 1963 lease
from his parents by undue influence; in this action, for harm
caused by GBR’s refusal to relinquish possession of the Property
as required by the Pecoraro judgment.
Each side is partially correct. Claim preclusion bars the
Loubar plaintiffs from seeking damages for GBR’s possession of
the Property before the judgment in the Pecoraro action was
enforceable. But claim preclusion does not bar the Loubar
plaintiffs from seeking damages for GBR’s possession of the
Property after the Pecoraro judgment became enforceable. For
21
the latter time period, the Loubar plaintiffs can bring an
independent action on the judgment, including an action for
damages.
2. The Loubar Plaintiffs’ Claims for Damages Caused by
GBR’s Conduct After January 12, 2017 Are Not
Barred
An action to quiet title to, or obtain possession of, real
property generally involves the same primary right as an action
seeking damages from the person or entity wrongfully possessing
the property. Therefore, a party may not seek to quiet title to, or
obtain possession of, property in one action and seek damages
caused by the defendant’s possession of that property in a
subsequent action. (See McNulty v. Copp (1954) 125 Cal.App.2d
697, 705 [action canceling a deed and quieting title to real
property barred a subsequent action for damages caused by the
wrongful possession of the property because “[t]he same wrongful
act—the possession under a false claim of right—gave rise to
both” actions]; McCaffrey v. Wiley (1951) 103 Cal.App.2d 621, 626
[action to eject a party from land barred a subsequent action to
recover damages from the party previously withholding the land
because the “question of damages for withholding the possession
of land from another” and the “question as to the right of
possession of the land . . . both rest upon the same invasion or
violation of the same right”]; see also Hatch v. Bank of America
N. T. & S. A. (1960) 182 Cal.App.2d 206, 208, 210 [action quieting
title to a truck precluded a subsequent action for damages based
on the defendant’s use of the truck].)
An action to enforce a judgment, however, involves a
different primary right from the right at issue in the underlying
22
action in which the court entered judgment. When a court
reduces a cause of action to judgment, the cause of action
“‘merges with the judgment and is thereby superseded’”
(Diamond Heights Village Assn., Inc. v. Financial Freedom Senior
Funding Corp. (2011) 196 Cal.App.4th 290, 301) or
“extinguished” (Tomaselli v. Transamerica Ins. Co. (1994)
25 Cal.App.4th 1766, 1770). (See O’Neil v. General Security Corp.
(1992) 4 Cal.App.4th 587, 602; Passanisi v. Merit-McBride
Realtors, Inc. (1987) 190 Cal.App.3d 1496, 1510.) The prevailing
party acquires new rights as a judgment creditor distinct from
those for which it sought redress in the original action, including
the right to enforce the judgment. (See Diamond Heights Village,
at p. 301 [“the judgment ‘“ . . . creates a new debt or liability,
distinct from the original claim or demand”’”]; Tomaselli, at
p. 1770 [“upon entry of . . . judgment [the prevailing parties] . . .
acquired such rights as are accorded a judgment creditor”];
Rest.2d Judgments, § 17, com. a [when a final judgment “is
rendered in favor of the plaintiff, the claim is generally merged in
the judgment . . . and the judgment with new rights of
enforcement thereof is substituted for the claim”].)
Although the Enforcement of Judgment Law (Code Civ.
Proc., §§ 680.010 et seq.)13 establishes a comprehensive statutory
scheme governing the enforcement of judgments, a judgment
creditor may also bring an independent action on the judgment.
(See Thomas v. Thomas (1939) 14 Cal.2d 355, 358 [“[t]he right to
maintain an action on a domestic judgment has long been
recognized in this state”]; Barkley v. City of Blue Lake (1996)
47 Cal.App.4th 309, 318 [“[a]n action on the judgment is an
13 Undesignated statutory references are to the Code of Civil
Procedure.
23
alternative method of securing the judgment creditor’s right to
recover”]; see also § 683.050 [Enforcement of Judgment Law does
not “[l]imit any right the judgment creditor may have to bring an
action on a judgment”]; Goldman v. Simpson (2008)
160 Cal.App.4th 255, 262, fn. 3 [“[a]n action based on
a judgment is an action based on contract”].) In particular, a
party may bring an action on a judgment for damages where the
other party fails to comply with a judgment directing it to
surrender possession of real property. (See Hidden v. Jordan
(1881) 57 Cal. 184, 186-187 [plaintiff could bring action seeking
mesne profits where the defendant failed to comply with a
judgment ordering the defendant to surrender to possession of
the property]; see also Colvig v. RKO General, Inc.
232 Cal.App.2d 56, 74-75 (1965) [former employee could maintain
an action for damages where the employer failed to comply with a
judgment ordering employer to restore employee to his prior
position].)
In addition, the doctrine of claim preclusion only “serves as
a bar to all causes of action that were or could have been litigated
in the first cause of action.” (McCready v. Whorf (2015)
235 Cal.App.4th 478, 482; see Allied Fire Protection v. Diede
Construction, Inc. (2005) 127 Cal.App.4th 150, 155.) Claim
preclusion, however, “is not a bar to claims that arise after the
initial complaint was filed.” (McCready, at p. 482; see Allied Fire
Protection, at p. 155.) An action to enforce a judgment not only
involves a different primary right from the action establishing
the judgment, such an action arises after the complaint in the
prior action. As the court in McCready explained, because “an
action to enforce a judgment . . . quite obviously” cannot be
“litigated in the first action,” claim preclusion does not bar a
24
subsequent action on the judgment. (McCready, at p. 483; see
ibid. [judgment imposing a lien on the assets and profits of a
business did not bar a subsequent action against the judgment
debtor for money had and received based on conduct by the
judgment debtor in avoiding the lien]; see also Hoover v.
Galbraith (1972) 7 Cal.3d 519, 525 [“[a]n action on a judgment
. . . may not be commenced until the judgment has become
final”].)
The Supreme Court’s decision in Hidden v. Jordan, supra,
57 Cal. 184—while not strictly a claim preclusion case—is
instructive. In Hidden the plaintiff obtained a judgment ordering
the defendant to execute a deed conveying real property to the
plaintiff and then to “surrender[ ] and deliver[ ]” possession of the
property. (Id. at p. 185.) Rather than comply, the defendant (like
GBR) leased the property to third parties, who excluded the
plaintiff from the property. The plaintiff subsequently sued the
defendant for mesne profits “to recover the value of the use and
occupation of the premises” while the defendant leased the
property, and the trial court entered judgment in favor of the
plaintiff. The Supreme Court affirmed, stating that the
defendants, “instead of respecting” the judgment, “detained the
possession from” the plaintiff and that, for “the damage they thus
occasioned plaintiff, it is but just that they should respond, and
we know of no rule of law that prevents their being made to do
so.” (Id. at pp. 186-187.)
The Loubar plaintiffs labeled each of their causes of action
either as “for mesne profits” or for declaratory relief. The
allegations make clear, however, the Loubar plaintiffs were
bringing an action seeking damages because GBR failed to
comply with the Pecoraro judgment. (See Khodayari v.
25
Mashburn (2011) 200 Cal.App.4th 1184, 1190 [“the nature of a
cause of action does not depend on the label the plaintiff gives it
or the relief the plaintiff seeks but on the primary right
involved”].) The Loubar plaintiffs alleged that the Pecoraro
judgment “ordered that GBR ‘shall forthwith relinquish
possession’” of their one-half interest, but that GBR “maintained
control and possession of the Current Undivided 50% including
full control of the management and rental operations” of the
mobilehome park, to the Loubar plaintiffs’ “exclusion” and
without their consent.
For at least the period after the Court of Appeal issued its
remittitur in the Pecoraro action on January 12, 2017, the
analysis is straightforward. Once the Court of Appeal issued its
remittitur, the Pecoraro judgment became final, the trial court’s
stay of the execution of the judgment was no longer in effect, and
the Loubar plaintiffs could bring an independent action on the
judgment to enforce their rights as judgment creditors. (See
Hoover v. Galbraith, supra, 7 Cal.3d at pp. 525-526 [for purposes
of filing a judgment on an action, the “judgment has become final
either upon expiration of the period within which an appeal may
be taken, or, if an appeal is taken, upon the issuance of the
remittitur when the judgment has been affirmed”]; Archdale v.
American Internat. Specialty Lines Ins. Co. (2007)
154 Cal.App.4th 449, 479 [“An appeal is final on the
date remittitur issues.”]; Cory v. Poway Unified School Dist.
(1983) 147 Cal.App.3d 1158, 1165 [“Where an appeal has been
taken, a judgment is final upon the issuance of the
26
remittitur.”].)14 Therefore, the Loubar plaintiffs’ claims for
damages caused by GBR’s refusal to comply with the Pecoraro
judgment after January 12, 2017 do not involve the same primary
rights as those at issue in the Pecoraro action, and claim
preclusion does not bar their claims for damages after that date.
3. The Loubar Plaintiffs’ Claims for Damages
Caused by GBR’s Conduct Before January 12,
2017 Are Barred
The trial court also awarded the Loubar plaintiffs damages
for GBR’s possession of the Property between August 3, 2012—
the last day of the trial in the Pecoraro action—and January 12,
2017. Whether the doctrine of claim preclusion bars the Loubar
plaintiffs’ claims for damages during this time period is not so
straightforward. But, in the end, claim preclusion applies here.
As discussed, a judgment in an action to quiet title to real
property generally bars a subsequent action seeking damages for
a person’s wrongful possession of the property. Here, the
Pecoraro judgment stated the Loubar plaintiffs “were entitled to
cancellation of the 1963 Lease as well as possession” of their one-
half interest “effective as of August 3, 2012.” The trial court in
the Pecoraro action, however, did not enter the judgment until
May 2013. Regardless of when the Pecoraro judgment stated the
Loubar plaintiffs obtained the right to possess their undivided
one-half interest in the Property, until May 2013 there was no
judgment for GBR to comply with. Thus, the Loubar plaintiffs
14 The parties appear to agree the stay ended when the Court
of Appeal issued its remittitur. (See Granger v. Sheriff (1903)
140 Cal. 190, 196 [stay of execution on appeal ends when the
reviewing court loses jurisdiction].)
27
could not have brought an action on the judgment before
May 2013.
Nor could the Loubar plaintiffs have brought an action for
GBR’s failure to comply with the judgment between May 2013
and January 2017. That is because the trial court stayed
enforcement of the Pecoraro judgment under section 917.4 after
GBR posted the undertaking set by the court. Because the court
issued the stay, GBR did not have to comply with the Pecoraro
judgment while the appeal was pending. (See Petrolink v. Lantel
Enterprises (2022) 81 Cal.App.5th 156, 167 [appellant’s “appeal
and its posting of an undertaking [under section 917.4] . . . served
to stay the amended judgment and render that judgment
unenforceable until it became final”]; id. at p. 168 [“[b]ecause a
trial court cannot enforce a judgment for specific performance
that has been stayed pending appeal, that judgment cannot be
considered to have fixed a date for performance until the stay has
been lifted”]; Hearn Pacific Corp. v. Second Generation Roofing,
Inc. (2016) 247 Cal.App.4th 117, 143, fn. 22 [judgment debtor
“that appeals an adverse judgment rendered against it, and posts
a bond to stay its execution, cannot be held liable in tort to
the judgment creditor for refusing to pay the judgment”]; Gray v.
Bybee (1943) 60 Cal.App.2d 564, 569 [stay of execution of a
judgment has “the effect of a temporary injunction”].)
Indeed, the Loubar plaintiffs had a separate remedy to
recover their loss of use of their one-half undivided interest while
the Pecoraro appeal was pending: an action on the undertaking
after the appeal. Section 917.4 provides that, when the trial
court fixes the amount of an undertaking to stay enforcement of a
judgment for “delivery of possession of real property,” the order
must require the appellant to “pay the damage suffered
28
by the . . . value of the use and occupancy of the property” if the
judgment is affirmed. (See Royal Thrift & Loan Co. v. County
Escrow, Inc. (2004) 123 Cal.App.4th 24, 36 [undertakings under
section 917.4 “cover the value of occupation and waste” during
the appeal]; see also § 996.430, subd. (a) [“liability on a bond may
be enforced by civil action”].)
The Loubar plaintiffs argue that, “where the challenged
conduct post-dates the filing of the first action, [claim preclusion]
cannot bar the subsequent action . . . .” That is not an accurate
statement of the law. Claim preclusion bars a second action for
violation of the same primary right involved in the first action, in
light of the harm suffered. Where a party suffers harm from a
violation that begins before the party files a lawsuit and
continues while the litigation is pending, there is only one
primary right or cause of action for purposes of claim preclusion.
(See Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 906
[a decree for specific performance “bars a subsequent action for
monetary relief based on the same breach of contract, even if this
subsequent action seeks to recover for delay in performance
occasioned by the litigation”]; Van Horne v. Treadwell (1913)
164 Cal. 620, 623 [“continued withholding of stocks or bonds after
the bringing of action to enforce their delivery, pending the
litigation and up to the time of the enforcement of the decree, is
not a new wrong, redressible by a new action, but is simply a
continuation of the original wrong, for which the only redress
given by the law must be had in the original action”]; Orloff v.
Hollywood Turf Club (1952) 110 Cal.App.2d 340, 345 [action for
ejectment from a race track seeking injunctive relief barred a
subsequent action seeking damages caused by the “continuing
wrong” during the original action].) Indeed, in Hidden v. Jordan,
29
supra, 57 Cal. 184 the Supreme Court held that, although the
plaintiff could seek damages after the defendant violated the
judgment, “[t]he mesne profits accruing to the plaintiff previous
to the entry of the decree . . . could have been, and
could only have been, allowed him in the [prior] action.” (Id.
at pp. 186-187.) Therefore, claim preclusion bars the Loubar
plaintiffs’ damages claims prior to January 12, 2017.15
D. Claim Preclusion Bars GBR from Asserting It Has the
Right To Possess the Loubar Plaintiffs’ One-half
Interest in the Property
GBR contends the trial court erred because it failed to rule
in GBR’s favor on two related defenses. First, GBR argues the
2010 partition order established that GBR had the right, under
the 2007 leases, to operate the mobilehome park on the entire
Property. Second, GBR argues the Loubar plaintiffs consented to
GBR occupying the entire Property following the partition order.
The Loubar plaintiffs contend claim preclusion bars these
defenses. It does.
15 Because the trial court awarded one amount of damages for
GBR’s possession of the Loubar plaintiffs’ one-half interest in the
Property between August 3, 2012 and June 20, 2019, the entire
damages award must be reversed with directions for a new trial
on those damages. For the same reason, because the court
declared the Loubar plaintiffs were “entitled to recover” 50
percent of GBR’s net operating income from August 3, 2012, the
Loubar plaintiffs’ causes of action for declaratory relief must be
retried. We do not consider the parties’ other arguments
regarding whether the trial court erred in calculating the amount
of damages.
30
As discussed, there is no dispute that the Pecoraro
judgment was a final judgment on the merits or that GBR was a
party in the Pecoraro action. The only question is whether, in
raising these two defenses, GBR is attempting to relitigate the
same cause of action—or the alleged violation of the same
primary right—that was involved in the Pecoraro action. (See
DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 818
[“claim preclusion ‘prevents relitigation of the same cause of
action in a second suit’” (italics omitted)]; Mycogen Corp. v.
Monsanto Co., supra, 28 Cal.4th at p. 896; Samara v. Matar
(2017) 8 Cal.App.5th 796, 803.) That is exactly what GBR is
doing.
The Pecoraro judgment quieted title to the undivided
one-half interest in the Property originally owned by Cy and
Lou’s parents, declared that GBR had no right or interest in that
one-half interest, and ordered GBR to relinquish possession of
that one-half interest in the Property. Unlike the Loubar
plaintiffs, who are simply seeking to enforce their rights as
creditors in the Pecoraro judgment, GBR is attempting to
relitigate who has the right to possess the Loubar plaintiffs’
undivided one-half interest in the Property, which is the primary
right adjudicated in the Pecoraro action. Indeed, a judgment
quieting title to real property generally bars a party to the
judgment from asserting any adverse interest in the property
acquired prior to the judgment. (See California Bank v. Traeger
(1932) 215 Cal. 346, 351 [“a simple judgment in favor of [a party]
in a quiet title action ‘operates as an estoppel upon the [other
party] and determines title as between the parties and protects
the [prevailing party] against any claim” by the other party
(italics omitted)]; Warden v. Stoll (1930) 210 Cal. 374, 377 [same];
31
Quirk v. Rooney (1900) 130 Cal. 505, 510 [“We do not think it the
policy of the law to allow as many different suits between the
same parties in regard to the same subject-matter as there might
be different modes of establishing title to property.”]; Little v.
Schwartz (1960) 182 Cal.App.2d 594, 599 [“the standard
judgment in the ordinary quiet title action generally includes, as
almost an inseparable part thereof, a prohibition against the
defendant subsequently asserting a claim adverse to the title of
the plaintiff,” and such “a decree is final and conclusive, and so
should it be, for otherwise the future security and safety of land
titles based upon quiet title judgments would be endangered”].)
Even if GBR’s legal theories for why it has the right to possess
the Loubar plaintiffs’ one-half undivided interest in the Property
had some validity (and as we will explain, they do not), GBR had
the legal and factual bases for asserting those theories no later
than 2010, when the Loubar plaintiffs purchased the Property
pursuant to partition, which was before Catherine and Josephine
filed their operative complaint in the Pecoraro action. GBR could
have raised its defenses in that action.
GBR argues the Pecoraro judgement “did not ‘quiet title’ to
all interests in the Property,” but only to the “‘leasehold interest’
created by the 1963 lease.” GBR is correct the Pecoraro judgment
did not quiet title to all interests in the property: The judgment
did not address the partnership’s undivided one-half interest.
But GBR’s theory that the judgment quieted title only to a
purported interest “created by” the 1963 lease, rather than the
entirety of the Loubar plaintiffs’ undivided one-half interest, is
incorrect.
In their operative complaint in the Pecoraro action,
Catherine and Josephine alleged GBR “took possession of the
32
Property”—defined as the 20-acre property that encompasses
Parcels One, Three, and Eight—and “refused to restore
possession of it” to them. In their prayer for relief, they sought a
judgment “quieting title in [their] favor as fee title owners of the
property” and “an order that [GBR] . . . has no right, title, estate,
lien or interest in the property which is adverse” to Catherine
and Josephine. In their trial brief, Catherine and Josephine
argued the trial court should “both cancel the lease and enter
judgment quieting title to the Property” and reiterated their
demand that “title to [the Property] should be quieted as of
August 3, 2012.” The court granted the relief Catherine and
Josephine requested, declaring in the judgment the Loubar
plaintiffs were “entitled to . . . possession of [the] undivided fifty
percent interest in the Property previously subject to the 1963
Lease” (i.e., the undivided half interest from Cy and Lou’s
parents, now owned by the Loubar plaintiffs), declaring GBR had
“no right title, or interest in the undivided fifty percent interest
in the Property” and enjoining GBR “from making any further
adverse claims to said interest.” The court never stated it was
only quieting title to a leasehold interest “created by” the 1963
lease.16
16 In its statement of decision, the trial court distinguished
between the “fifty percent undivided interest in the . . . Property”
owned by Cy and Lou’s parents “at the time the Lease was
executed” and the “other fifty percent undivided interest in the
. . . Property . . . owned by Cy and Lou that was not subject to the
1963 Lease.” Reading the statement of decision and judgment as
a whole, the court’s reference to the “undivided fifty percent
interest in the Property previously subject to the 1963 Lease” is a
reference to the undivided one-half interest originally owned by
33
GBR’s contrary interpretation of the Pecoraro judgment is
inconsistent with the relief requested by Catherine and
Josephine and the terms of that judgment. By cancelling the
1963 lease, the Pecoraro judgment effectively determined the
1963 lease did not create any right in the property. If, as GBR
asserts, the court in the Pecoraro action intended only to quiet
title to interests created by the 1963 lease, the part of the
judgment cancelling the lease would have been the end of the
judgment; the court would have no reason to determine whether
any party, for some other reason, held ownership interests or the
right to possess the Property because those rights and interests
would not have been before the court. But the Pecoraro judgment
goes further: It declares that the Loubar plaintiffs, as “fee title
holders to the Property,” are entitled to “possession” of the
undivided one-half interest previously owned by Cy and Lou’s
parents and subject to the 1963 lease and that GBR must
“relinquish possession” of that one-half interest. That right of
possession necessarily arises from an interest different from one
“created by” the 1963 lease. By declaring that the Loubar
plaintiffs had the right to possess the one-half interest, the court
in the Pecoraro action necessarily quieted title to the entire one-
half interest previously owned by Cy and Lou’s parents and
encumbered by the 1963 lease. (See Southern Pacific Pipe Lines,
Inc. v. State Bd. Of Equalization (1993) 14 Cal.App.4th 42, 57
Cy and Lou’s parents (i.e., the Loubar plaintiffs’ one-half
interest), not a purported interest “created by” the 1963 lease.
(See Lazar v. Superior Court (1940) 16 Cal.2d 617, 622 [courts
should construe a judgment “as a whole”]; Dow v. Lassen
Irrigation Co. (2013) 216 Cal.App.4th 766, 781 [same].)
34
[“‘the judgment as entered should be liberally construed with a
view of giving effect to the manifest intent of the court’”].)
GBR asserts it can litigate its right to possess the entire
Property, including the Loubar plaintiffs’ one-half interest,
because the judgment states GBR is “not enjoined . . . from
litigating any other interest in the Property.” But the “other
interest” the Pecoraro judgment refers to is the one-half interest
not previously subject to the 1963 lease (i.e., the partnership’s
one-half interest)—not the Loubar plaintiffs’ one-half interest.
(See Deutsche Bank National Trust Co. v. Pyle (2017)
13 Cal.App.5th 513, 524 [“purpose of a quiet title action ‘is to
finally settle and determine, as between the parties, all
conflicting claims to the property in controversy, and to decree to
each such interest or estate therein as he [or she] may be entitled
to’”].)
Finally, GBR contends (without citing any authority) “claim
preclusion is a bar on “‘claims’, not defenses.” The law is to the
contrary. As discussed, claim preclusion “‘prevents relitigation of
the same cause of action in a second suit between the same
parties’” (DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at
p. 824), including “‘all grounds for, or defenses to, recovery that
were previously available to the parties, regardless of whether
they were asserted or determined in the prior proceeding.’”
(State Bd. of Equalization v. Superior Court (1985) 39 Cal.3d 633,
641, italics added; see Brown v. Felsen (1979) 442 U.S. 127, 131
[99 S.Ct. 220]; Worton v. Worton (1991) 234 Cal.App.3d 1638,
1647.) As the Supreme Court has explained, the “reason for this
is manifest. A party cannot by negligence or design withhold
issues and litigate them in consecutive actions. Hence the rule is
that the prior judgment is res judicata on matters which were
35
raised or could have been raised, on matters litigated or
litigable.” (Sutphin v. Speik (1940) 15 Cal.2d 195, 202; see State
Compensation Insurance Fund v. ReadyLink Healthcare, Inc.
(2020) 50 Cal.App.5th 422, 447; Aerojet-General Corp. v.
American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 402.) Thus,
the doctrine “‘operates to demand of a defendant that all his
defenses to the cause of action urged by the plaintiff be asserted
under the penalty of forever losing the right to thereafter so urge
them.’” (Sutphin, at p. 202; see Murphy v. Murphy (2008)
164 Cal.App.4th 376, 404.) As the Supreme Court explained in
denying a petition for rehearing in Sutphin, a plaintiff may not
“be compelled to relitigate” the same right whenever the
defendant “can discover a new theory upon which to attack it.”
(Sutphin, at p. 205.) Which is what GBR is attempting to do
here: relitigate its right to possess the Loubar plaintiff’s
undivided half interest on theories (based on the effect of the
2007 leases and the partition order) it could have raised in the
Pecoraro action.
The Restatement (Second) of Judgments is to the same
effect. (See Canfield v. Security-First Nat. Bank (1939) 13 Cal.2d
1, 30-31 [although the Restatement “does not constitute a binding
authority, considering the circumstances under which it has been
drafted, and its purposes, in the absence of a contrary statute or
decision in this state, it is entitled to great consideration as an
argumentative authority”]; Karapetian v. Carolan (1948)
83 Cal.App.2d 344, 349 [“[t]here can be no doubt that the rules
announced in the Restatement are sound, and reach the fair and
equitable result”].) Section 18 of the Restatement explains that
where, as here, a valid and final judgment “is rendered in favor of
the plaintiff,” the plaintiff may “maintain an action upon the
36
judgment,” and “[i]n an action upon the judgment, the defendant
cannot avail himself of defenses he might have interposed . . . in
the first action.” (Rest.2d Judgments, § 18.) “It is immaterial
whether the defendant had a defense to the original action if he
did not rely on it . . . .” (Id., at com. a; see also Chacon v. Union
Pacific Railroad (2020) 56 Cal.App.5th 565, 580 [citing section 18
of the Restatement]; Guerrero v. Department of Corrections &
Rehabilitation (2018) 28 Cal.App.5th 1091, 1098 [same]; Ferraro
v. Camarlinghi (2008) 161 Cal.App.4th 509, 531 [same].)
GBR knew all the facts relevant to the 2007 leases and the
2010 partition order before Catherine and Josephine filed the
Pecoraro action. True, Catherine and Josephine specifically
sought to cancel, and the trial court did cancel, the 1963 lease, so
that they could obtain possession of their undivided one-half
interest. But GBR knew Catherine and Josephine were seeking
to quiet title to any interest GBR claimed in their one-half
interest in the Property. To the extent GBR wanted to argue it
had the right to possess the one-half interest for a reason other
than the rights granted under the 1963 lease, including because
of the 2007 leases and the 2010 partition order, GBR had to raise
those grounds in the Pecoraro action.
E. GBR’s Defenses Also Fail on the Merits
Even if claim preclusion did not bar GBR from raising its
defenses to the Loubar plaintiffs’ right to possess their one-half
interest, the trial court did not err in ruling against GBR on
those defenses. GBR contended in the trial court, and contends
on appeal, that while the 2007 leases may have originally
granted GBR the right to possess only a collective one-half
interest in the property, the partition order (in the words of
37
counsel for GBR at oral argument) “changed everything” and
established that the 2007 leases granted GBR the right to possess
the entire Property. GBR relies on this language in the partition
order: “The sale and purchase of the property shall be subject to
all leases . . . affecting the Property referenced in the Title
Report, and all encumbrances of record.” The trial court rejected
GBR’s argument, ruling that the 2007 leases “convey[ed] only a
leasehold interest of an undivided 50% of the Property” and that
the partition order “did not broaden the coverage and/or scope of
the 2007 leases.” The trial court was correct.
We interpret the stipulated partition order according to the
rules governing the interpretation of contracts. (Estate of Jones
(2022) 82 Cal.App.5th 948, 952; Machado v. Myers (2019)
39 Cal.App.5th 779, 792.) We give effect to the parties’ mutual
intentions, first examining the judgment’s plain language.
(Jones, at p. 952; see Landeros v. Pankey (1995) 39 Cal.App.4th
1167, 1172 [a stipulated order or judgment “is subject to
construction as to the parties’ intent”].) “Extrinsic evidence is
allowed to determine the parties’ intent when a stipulated order
[or judgment] is ambiguous,” but “[u]nless there are conflicts in
the extrinsic evidence, the interpretation of a stipulated . . .
order [or judgment] is reviewed de novo.” (SLPR, L.L.C. v. San
Diego Unified Port District (2020) 49 Cal.App.5th 284, 299; see
Rancho Pauma Mutual Water Co. v. Yuima Municipal Water
Dist. (2015) 239 Cal.App.4th 109, 115.)
There was no ambiguity in the language of the partition
order or the leases. The partition order stated the sale of the
Property would be “subject to all leases . . . affecting the Property
referenced in the Title Report, and all encumbrances of record.”
The title report references the 1963 lease and the two 2007
38
leases. It states the lessee’s interest under each of the 2007
leases “has been assigned to GBR” and, for each lease, identifies
the instrument number of both a “Memorandum of Lease and
Purchase Option” and an assignment recorded with the Santa
Clara County Recorder. Each of the 2007 leases and each of the
recorded memoranda describes the interest leased under the
agreement as a “25% tenancy in common interest” in the
Property (collectively, one-half interest for both leases), and each
of the subsequent assignments to GBR similarly identifies the
assigned lease as “affecting an undivided 25% interest in the
Property as . . . evidenced by” the recorded memorandum of lease.
When the Loubar plaintiffs purchased the property in 2010
pursuant to the partition, they may, as GBR maintains, very well
have purchased the Property “subject to” all three leases. The
1963 lease granted the lessee the right to possess an undivided
one-half interest in the Property, and each of the two 2007 leases
granted the lessee the right to possess an undivided one-fourth
interest. That’s how GBR had the right to possess the entire
Property: At the time (i.e., 2010), GBR held the lessee’s rights
under all three leases (25%+25%+50%). But not after 2013.
When the court in the Pecoraro action cancelled the 1963 lease,
everything indeed changed, but not in the way GBR wants it to
have changed. After the Pecoraro judgment, the Property
remained “subject to” the 2007 leases, but those two leases
continued to grant GBR the right to possess only a collective
one-half interest in the property. Without the Pecoraro-
extinguished rights under the 1963 lease, GBR no longer had the
right to possess the entire Property. Thus, even if GBR’s theory
is not barred, it only gets GBR halfway to where it wants to go;
39
GBR is still 50 percent short of having the right to possess the
entire property.
GBR essentially asks us to add a new provision to the
partition order that redefines the scope of the premises leased
under each of the 2007 leases. GBR wants the partition order to
state that each lease that previously encumbered only a
fractional interest in the Property now encumbers a 100 percent
interest in Property, so that GBR only needs to possess the
lessee’s rights under one of the leases to possess the entire
property. That is not what the partition order says, and it is not
our role to rewrite the partition order. (See Machado v. Myers,
supra, 39 Cal.App.5th at p. 792 [“[i]t is not the province of the
court to add to the provisions” to a contract, “to insert a term not
found therein,” or “to make a new stipulation for the parties”];
Jones v. World Life Research Inst. (1976) 60 Cal.App.3d 836, 840
[same].) And even if the language of the partition order were
ambiguous (and GBR maintains it is unambiguous), GBR
presented no extrinsic evidence that would suggest the parties
intended to broaden the scope of the leases.17
17 GBR also relies on a “Quiet Enjoyment” provision of the
2007 leases, which states the lessee (GBR) “shall peaceably and
quietly have, hold and enjoy the Premises . . . without hindrance
or molestation from Landlord, subject to the terms and provisions
of the Lease.” That provision does not help GBR. Each lease
defines the “Premises” as a “25% tenancy in common interest in
the land (and all improvements thereon owned by Landlord).”
The quiet enjoyment provision simply states GBR has the right to
use the one-fourth undivided interest leased under the
agreement—an unremarkable proposition that does not advance
GBR’s position.
40
GBR also argued in the trial court, and argues on appeal,
that the Loubar plaintiffs consented to GBR’s operation of the
mobilehome park on the entire Property. The trial court ruled
the Loubar plaintiffs did not consent to their exclusion from their
one-half interest in the property. GBR has not shown the trial
court erred.
There is no ouster where one cotenant consents to the
other’s possession or use of the property. (Burnscher v. Reagh
(1958) 164 Cal.App.2d 174, 178; see Spinks v. Equity Residential
Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1043
[“‘[w]here there is a consensual entry, there is no tort’”].) GBR’s
argument is that the Loubar plaintiffs consented to GBR’s
occupation of the entire Property because they stipulated to the
partition order. For the reasons discussed, GBR is incorrect.
Moreover, whether a party consented to an ouster is a factual
issue, and substantial evidence supported the trial court’s finding
the Loubar plaintiffs did not consent.18 (See Pay ‘N Pak Stores,
18 To the extent consent is an affirmative defense to an
ouster, GBR would have the burden to prove consent at trial.
(See, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903,
920-921 [consent is an affirmative defense to a cause of action for
nuisance]; but see Spinks v. Equity Residential Briarwood
Apartments, supra, 171 Cal.App.4th at p. 1043 [“lack of consent is
an element of the wrong” for trespass].) “‘In the case where the
trier of fact has expressly or implicitly concluded that the party
with the burden of proof did not carry the burden and that party
appeals . . . the question for a reviewing court becomes whether
the evidence compels a finding in favor of the appellant as a
matter of law’” because “‘the appellant’s evidence was
(1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial
41
Inc. v. Superior Court (1989) 210 Cal.App.3d 1404, 1408 [whether
landlord consented to sublessor leasing property “presented
a factual dispute”]; see also Antelope Valley Groundwater Cases
(2018) 30 Cal.App.5th 602, 618, fn.11 [“The issue of an implied
agreement or consent is ordinarily a factual question to be
resolved by the trier of fact.”].) Catherine and Josephine sued to
quiet title to their interest in the Property, free and clear of any
adverse claims of GBR, and to recover possession, shortly after
they purchased the property pursuant to partition. The Loubar
plaintiffs never ceased their attempt to recover possession of
their one-half interest in Property from GBR (or at least a share
of the rental income). They did not consent.
F. Judicial Estoppel Does Not Bar the Loubar Plaintiffs’
Claims
In the Pecoraro action the Loubar plaintiffs originally
sought to recover damages from Cy and GBR for their continued
possession of the Property. In their closing trial brief, however,
the Loubar plaintiffs stated they would “not pursue their other
claims” if the court canceled the 1963 lease and quieted title to
the Property in their favor. GBR argues the trial court erred in
ruling the doctrine of judicial estoppel did not bar the Loubar
plaintiffs from seeking damages in this action for GBR’s
continued possession of the Property, even after the Pecoraro
judgment. The trial court did not err.
determination that it was insufficient to support a
finding.”’” (Dreyer’s Grand Ice Cream, Inc. v. County of
Kern (2013) 218 Cal.App.4th 828, 838.) Even if lack of consent
were an element of the Loubar plaintiffs’ claims, rather than an
affirmative defense, the trial court did not err.
42
“‘“‘Judicial estoppel precludes a party from gaining an
advantage by taking one position, and then seeking a second
advantage by taking an incompatible position. [Citations.] The
doctrine’s dual goals are to maintain the integrity of the judicial
system and to protect parties from opponents’ unfair strategies.
[Citation.] Application of the doctrine is discretionary.’”
[Citation.] The doctrine applies when “(1) the same party has
taken two positions; (2) the positions were taken in judicial or
quasi-judicial administrative proceedings; (3) the party was
successful in asserting the first position (i.e., the tribunal adopted
the position or accepted it as true); (4) the two positions are
totally inconsistent; and (5) the first position was not taken as a
result of ignorance, fraud, or mistake.”’” (People v. Castillo (2010)
49 Cal.4th 145, 155; see Filtzer v. Ernst (2022) 79 Cal.App.5th
579, 587; Textron Inc. v. Travelers Casualty & Surety Co. (2020)
45 Cal.App.5th 733, 754.)
“‘The determination of whether judicial estoppel can apply
to the facts is a question of law reviewed de novo, i.e.,
independently [citations], but the findings of fact upon which the
application of judicial estoppel is based are reviewed under the
substantial evidence standard of review. [Citations.] . . . [¶]
Even if the necessary elements of judicial estoppel are found,
because judicial estoppel is an equitable doctrine [citations],
whether it should be applied is a matter within the discretion of
the trial court. [Citations.] The exercise of discretion for an
equitable determination is reviewed under an abuse of discretion
standard.’” (Miller v. Bank of America, N.A. (2013)
213 Cal.App.4th 1, 10; see DotConnectAfrica Trust v. Internet
Corp. for Assigned Names & Numbers (2021) 68 Cal.App.5th
431141; Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th
39, 46-47.)
The trial court ruled the Loubar plaintiffs did not take
totally inconsistent positions. According to the court, a
“reasonable reading” of the Loubar plaintiffs’ statement they
would not pursue their other claims was that they would not
pursue the other causes of action asserted in their complaint—
not that they intended to forfeit their right to seek damages “not
yet accrued” in future actions. The trial court was correct. The
Loubar plaintiffs asserted several causes of action in their
complaint,19 but in their closing brief asked the court to enter
judgment only on their causes of action for cancellation of the
1963 lease and to quiet title to the Property. It is not reasonable
to interpret the statement as a promise not to seek additional
relief or damages in the event the GBR refused to comply with a
judgment granting their requested relief.20
The trial court also correctly ruled GBR did not show the
Loubar plaintiffs were “successful in asserting the first position.”
A party is successful in asserting a position if “the tribunal
adopted the position or accepted it as true.” (People v. Castillo,
supra, 49 Cal.4th at p. 155.) “Judicial estoppel does not apply,”
19 For example, the Loubar plaintiffs asserted causes of action
for rescission, breach of fiduciary duty, financial elder abuse, and
fraudulent concealment, none of which they pursued at trial.
20 Arguably the Loubar plaintiffs’ claims, in this action, for
damages between August 2012 and May 2013 before the trial
court entered judgment in the Pecoraro action were inconsistent
with its prior statements. Any inconsistency, however, is
immaterial in light of our holding that claim preclusion bars the
Loubar plaintiffs from seeking damages during that time period.
44
however, “when a party merely advocates inconsistent provisions
. . . .” (RSL Funding, LLC v. Alford (2015) 239 Cal.App.4th 741,
748.) Even if the Loubar plaintiffs had advocated inconsistent
positions by stating they would not pursue other claims, there is
no reason to believe the trial court in the Pecoraro action
“adopted” or “accepted” the position. The trial court could only—
and indeed, was required to—cancel the lease and quiet title in
favor of the Loubar plaintiffs if the court determined they proved
their causes of action during the trial. (See McDermott Will &
Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1103
[“We presume the trial court knew and properly applied the law
absent evidence to the contrary.”].) There is no reason to believe
the Loubar plaintiffs “gain[ed] an advantage” on these causes of
action by abandoning other causes of action. (Castillo, at p. 155.)
Finally, even if GBR had established the elements of
judicial estoppel, reversal would not be warranted. Because
“judicial estoppel is an ‘equitable doctrine,’ . . . its application,
even where all elements of the doctrine are met, is ‘discretionary.’
The doctrine must be ‘applied with caution’ and is ‘limited to
egregious circumstances’” where “‘“‘a party’s inconsistent
behavior will otherwise result in a miscarriage of justice.’”’”
(Filtzer v. Ernst, supra, 79 Cal.App.5th at p. 588; see Minish v.
Hanuman Fellowship (2013) 214 Cal.App.4th 437, 449.) GBR
does not argue why, even assuming the elements of judicial
estoppel apply, the circumstances here are sufficiently egregious
that the trial court abused its discretion in declining to apply the
doctrine.
45
G. The Trial Court Did Not Err in Ruling Against GBR
on Its Causes of Action for Declaratory Relief
GBR argues the trial court erred in ruling against GBR and
in favor of the Loubar plaintiffs on the causes of action for
declaratory relief in GBR’s cross-complaint. In particular, GBR
contends the trial court erred in ruling “the 2007 leases give GBR
the non-exclusive right to possess an undivided 50% interest in
Parcels One and Three but they do not give GBR any rights as to
Parcel Eight . . . .”
GBR has a point, but not one that warrants reversal. GBR
presented uncontradicted evidence the 2007 lease agreements
and related documents describe the property encumbered by the
leases as including Parcel Eight. The 2007 leases describe the
encumbered property as “all of lots 25 and 26.” Records from the
Santa Clara County Recorder’s Office describe the 20-acre
property originally purchased by Lou and Cy’s parents as “all of
lots 25 and 26,” and in turn describe Parcel One as “all of Lots 25
and 26,” except for a certain portion of Lot 26, and Parcel Eight
as “that portion of Lot 26” excepted from Parcel One. Therefore,
“all of” lot 26, as described in the leases, includes Parcel Eight.
Moreover, the memorandum of lease GBR’s predecessors recorded
with the County of Santa Clara describe the encumbered
property as Parcels One, Three,21 and Eight. Similarly, the lease
21 Parcel Three includes property not part of Lots 25 and 26,
which the Property now includes following the condemnation
proceeding. If anything, the original 2007 leases may have
inadvertently omitted Parcel Three, but not Parcel Eight, from
the leased property.
46
assignment GBR and its predecessors executed described the
encumbered property as Parcels One, Three, and Eight.22
Any error by the trial court on this cause of action,
however, was harmless because GBR did not seek a declaration it
had the right to possess an undivided one-half interest in Parcel
Eight under the 2007 leases. Instead, GBR sought declarations
that it had the right “to occupy and use all parts of” the Property
under the 2007 leases and that its “occupation of the Property . . .
does not violate or infringe on any right held by Plaintiffs.” As
discussed, claim preclusion bars GBR from contending it has the
right to occupy and use the Property, including Parcel Eight, to
the exclusion of the Loubar plaintiffs, and GBR’s contentions lack
merit in any event. Therefore, the trial court properly entered
judgment against GBR on its causes of action for declaratory
relief. (See Transamerica Ins. Co. v. Tab Transp., Inc. (1995) 12
Cal.4th 389, 399, fn. 4 [“‘“[A] ruling or decision, itself correct in
law, will not be disturbed on appeal merely because given for a
wrong reason. If right upon any theory of the law applicable to
the case, it must be sustained regardless of the considerations
which may have moved the trial court to its conclusion.”’”].)
Finally, GBR argues the trial court erred because it
“refused to declare GBR’s rights and obligations under the
Pecoraro judgment” and did “not tell GBR what it needed to do
22 The trial court ruled the three-year statute of limitations
governing actions to reform a contract based on mistake barred
GBR’s claim. (See § 338, subd. (d); North Star Reinsurance Corp.
v. Superior Court (1992) 10 Cal.App.4th 1815, 1822-1823.) But
there was nothing to reform. The language of the 2007 leases
and subsequent assignments all describe the encumbered
property as including Parcel Eight.
47
[to] avoid further suits.” The problem for GBR is that it only
asked for one thing: to operate the mobilehome park on the entire
Property, to the exclusion of the Loubar plaintiffs. That it may
not do (at least not without the consent of the Loubar plaintiffs).
GBR does not develop an alternative argument or describe an
alternative declaration of rights it believes it was entitled to, nor
does GBR cite applicable authority that would support such a
declaration of rights. Therefore, GBR is not entitled to any other
relief. (See D. Cummins Corp. v. United States Fidelity &
Guaranty Co. (2016) 246 Cal.App.4th 1484, 1489 [“‘One cannot
analyze requested declaratory relief without evaluating the
nature of the rights and duties that plaintiff is asserting, which
must follow some recognized or cognizable legal theories that are
related to subjects and requests for relief that are properly before
the court.’”]; see also Meridian Financial Services, Inc. v. Phan
(2021) 67 Cal.App.5th 657, 700 [arguments that are not
developed are forfeited].)
48
DISPOSITION
The judgment is reversed. The trial court is directed to
conduct a new trial on damages, limiting the Loubar plaintiffs’
claims for damages to those incurred after January 12, 2017.
After the new trial, the trial court is directed to enter a new
judgment on the complaint and cross-complaint that, among
other things, finds in favor of GBR and against the Loubar
plaintiffs on the Loubar plaintiffs’ third cause of action of the
complaint, and in favor of the Loubar plaintiffs and against GBR
on GBR’s cross-complaint. The parties are to bear their costs on
appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
49