Vaughn v. Darwish

JACK VAUGHN et al., Plaintiffs and Appellants, v. BARBARA DARWISH et al., Defendants and Appellants.

B296693

C/w B305132

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

November 12, 2020

ORDER MODIFYING OPINION AND DENYING REHEARINGNO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on November 12, 2020, be modified as follows:

1. On page 11, the last sentence of the first paragraph under section "B. Favorable termination," delete the following sentence and citation:

"Any doubts are resolved against the termination being on the merits. (Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335 (Villa).)"

2. On page 11, the second paragraph, the first full sentence ending with "dismissal is presumed to be a favorable termination on the merits," modify the citation "Villa, supra, 4 Cal.App.4th at p. 1335" to read as follows:

Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335

3. On page 22, delete footnote 11, which will require renumbering of all subsequent footnotes.

4. On page 23, at the end of the first paragraph, following the last sentence commencing with "Because all six" and ending with "sufficiently close," the sentence is revised to read as follows:

Because all six unlawful detainer actions involved identical facts, because all six tenants joined together in a single malicious prosecution action against the landlord defendants, and because Hart and Rodriguez had the same incentive to litigate this issue as the remaining tenants, the relationship between all of the tenants is "sufficiently close" and thus satisfies this element as well as the due process concerns that animate it. (Cf. Grande v. Eisenhower Medical Center (2020) 44 Cal.App.5th 1147, 1161-1163 [collateral estoppel does not apply to bar plaintiff's lawsuit against a hospital based on prior judgment against staffingcompany when each entity is liable for its own conduct]; accord, Golden State Seafood, Inc. v. Schloss (2020) 53 Cal.App.5th 21, 37 [interim adverse judgment rule does not apply to a prior judgment arising out of "a different incident with different parties"].)

5. On page 24, top of the page, delete the word "four" in the sentence "The tenants offer four arguments to the contrary" and insert the word "five" so the sentence reads:

The tenants offer five arguments to the contrary.

6. On page 24, the first sentence of the last paragraph at the bottom of the page beginning with "Second," and in between the words "identical" and "because," the sentence should be modified to read as follows:

Second, the tenants suggest that the issues in all six unlawful detainer actions are not identical. In their briefs, they argue that those actions were different because, in a June 2012 order made prior to the bellwether trial, a judge ruled that there were "insufficient common questions of law and fact at this time among the six" unlawful detainer actions to consolidate them. (Italics added.)

7. On page 25, at the top of the page following the last sentence of the paragraph ending in "coming to a different view" insert the following:

For the first time at oral argument and in their petition for rehearing, the tenants argue that the facts underlying the unlawful detainer actions for each tenant were different. We reject this argument: It is wholly inconsistent with the tenants' repeated representations to the trial court in this case that the facts are all the "same" for each tenant and to this court that "the undisputed evidence . . . established that . . . the six [unlawful detainer] actions were all identical, except for the amount of rent demanded"; it is also wholly inconsistent with the reason for having a bellwether unlawful detainer trial in order to determine what to do with the remaining tenants.

8. On page 25, the first full paragraph beginning with the word "Third," after the third sentence beginning with "We are applying" and ending with "actions against Hart and Rodriguez," add as footnote 14 the following footnote, which will require renumbering of all subsequent footnotes:

¹⁴ Because we are applying collateral estoppel to our prior ruling in the malicious prosecution action, the tenants' argument—raised for the first time in their petition for rehearing—that they had no ability to intervene in the unlawful detainer actions against Hart and Rodriguez is irrelevant. The right and ability to intervene can be relevant to whether parties are in privity for purposes of collateral estoppel (e.g., Nein v. HostPro, Inc. (2009) 174Cal.App.4th 833, 845; Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 93 [same]; Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 298-299 [same]), but the tenants have been parties to the malicious prosecution action all along.

9. On page 25, the last paragraph beginning with "Lastly, the tenants argue," delete the word "Lastly" and insert the word "Fourth," in its place.

10. On page 27, at the top of the page, the first full sentence beginning with "Lastly, the tenants assert," delete the word "Lastly" and insert the word "Fourth," in its place.

11. On page 27, after the paragraph ending in "and regularly—evaded" and before the next paragraph beginning with "In light of our analysis," insert the following as a new paragraph:

Lastly, and for the first time in their petition for rehearing, the tenants assert that their malicious prosecution claims are different from Hart's and Rodriguez's claims because the landlord defendants lacked probable cause to maintain the unlawful detainer actions against the tenants for the three months between the date on which the unlawful detainer court ruled for Hart and Rodriguez in the bellwether trial and the date on which the landlord defendants voluntarily dismissed those actionsagainst the tenants. To be sure, "the tort of malicious prosecution does include continuing to prosecute a lawsuit discovered to lack probable cause." (Zamos v. Stroud (2004) 32 Cal.4th 958, 966.) But the tenants did not plead this theory. Their complaint alleges that the landlord defendants' "commencement and continued prosecution" of the unlawful detainer actions damaged them and that the landlord defendants "refused to dismiss the remaining [unlawful detainer] cases" after the bellwether trial. Critically, however, the complaint nowhere draws any distinction between Hart and Rodriguez—and the remaining tenants—on this basis; instead, the complaint lumps all six tenants together. Whether or not this language is ambiguous enough to have allowed the tenants to have articulated this theory at some point early on in the litigation of this action, they chose not to do so for the seven-plus years the malicious prosecution action has been pending—either before the trial court, in their briefs filed in this court, or at oral argument. This theory was not articulated until the tenants' petition for rehearing. As such, we deem it waived. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092 ["'arguments . . . cannot be raised for the first time in a petition for rehearing'"].)

* * *

There is no change in the judgment.

Appellants' petition for rehearing is denied.

/s/_________

ASHMANN-GERST, Acting P. J.

/s/_________

CHAVEZ, J.

/s/_________

HOFFSTADT, J.

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.

(Los Angeles County Super. Ct. No. BC521721)

APPEALS from a judgment and post-judgment order of the Superior Court of Los Angeles County, Richard L. Fruin, Jr., Judge. Affirmed.

Mesisca Riley & Kreitenberg, Dennis P. Riley and Rena E. Kreitenberg for Plaintiffs and Appellants.

Stillman & Associates and Philip H. Stillman for Defendants and Appellants.

* * * * * * This is the latest chapter in a seemingly unending tome of litigation between a landlord and its now-former tenants. What started as a landlord-tenant dispute back in 2010 has in the ensuing decade spawned eight lawsuits,¹ seven appeals,² and five writ proceedings.³ Throughout the course of this litigation, including the two consolidated appeals before us now, the parties and their attorneys have repeatedly misstated the facts and procedural history of this litigation, repeatedly misstated the law, repeatedly changed their positions on issues, and repeatedly sought to re-litigate previously decided issues.

These appeals arise out of the malicious prosecution chapter of the saga. Back in 2012, the landlord brought six separate unlawful detainer actions, one against each tenant living in a house. The unlawful detainer court tried two of the actions as bellwethers and ruled for the tenants; thereafter, thelandlord voluntarily dismissed the remaining four unlawful detainer actions. In 2013, all six tenants sued the landlord for malicious prosecution of the unlawful detainer actions. In 2016, the trial court ruled that the landlord was entitled to judgment on the pleadings as to the two bellwether tenants because the unlawful detainer court's denial of the tenants' midtrial motion for judgment under Code of Civil Procedure section 631.8⁴ operated as a binding determination that the landlord had probable cause to bring its unlawful detainer action against those two bellwether tenants. We subsequently affirmed. (Hart v. Darwish (2017) 12 Cal.App.5th 218 (Hart).) In 2019, the trial court ruled that the landlord was entitled to judgment as to the remaining tenants, but did so on the ground that the landlord's voluntary dismissal of the unlawful detainer actions against those tenants did not constitute a "favorable termination" on the merits. Those tenants now appeal. We conclude that the trial court's "favorable termination" ruling is incorrect, but its ultimate ruling in the landlord's favor is correct because its prior finding of probable...