Judge: Lee W. Tsao, Case: 19NWCV00417, Date: 2023-03-16 Tentative Ruling
Case Number: 19NWCV00417 Hearing Date: March 16, 2023 Dept: C
THEE AGUILA, INC.
v. BLACKWOOD
CASE NO.: 19NWCV00417
HEARING: 03/16/23
#7
TENTATIVE ORDER
Defendants FORWARD BEVERLY HILLS
INC.; and GURU THAPAR’s Motion for Summary Judgment is GRANTED. The
Alternative Motion for Summary Adjudication is MOOT.
Moving Party to give notice.
Defendants FORWARD BEVERLY HILLS INC.; and GURU THAPAR’s request
for judicial notice is GRANTED as to the existence of the documents, but not as
to any hearsay statements contained therein. (Cal. Ev. Code §452.)
Plaintiff THEE AGUILA, INC.’s request for judicial notice is
GRANTED as to the existence of the documents, but not as to any hearsay
statements contained therein. (Cal. Ev. Code §452.)
This action for contractual fraud was filed by Plaintiff
THEE AGUILA, INC. (“Plaintiff”) on May 17, 2019. On December 2, 2019, the
operative First Amended Complaint (“FAC”) was filed. The FAC alleges the
following relevant facts: “For many years, Plaintiff was the owner of real
property located at 8825 Washington Blvd., Pico Rivera, CA 90660 (hereinafter
‘the Property’). The Property had a Conditional Use Permit (hereinafter ‘CUP’)
issued by the City of Pico Rivera (hereinafter the ‘City’) which allowed the
Property to be used as a restaurant/nightclub.” (FAC ¶11.) “On or about May 25,
2017, Defendants Baschung, Thapar, and Keller Williams executed a Listing
Agreement with Plaintiff to list the Property for sale for $10,500.00; in doing
so Defendants Baschung, Thapar, and Keller Williams collectively (hereinafter
collectively ‘Broker/Agents’) and individually became the real estate
agents/brokers for and on behalf of Plaintiff.” (Id. ¶14.) “By way of combined
efforts of Plaintiff and the Broker/Agents, the parties brought Blackwood, a
qualified buyer to see the Property; after comprehensive and extensive
negotiations, Blackwood submitted a Letter of Intent to purchase the property
on or about November 12, 2017.” (Id. ¶15.) “In or about February of 2015, the
[DEA] seized the liquor license for the Property after it was discovered that
the tenants were using the Property to launder money for the Mexican drug
cartel. As a result, the tenant’s business was shut down, the City rescinded
the CUP, and ABC refused to process any liquor license application for the
Property. Without a CUP or liquor license, Plaintiff was unable to secure a new
tenant for the Property…. [¶] Due to the 2 ½ year delay… Plaintiff failed to
pay certain sums due under the Note, and [Pico Rivera First Mortgage Investors]
initiated foreclosure proceedings on the Property.” (FAC ¶¶16 and 18.) “Prior
to any foreclosure sale taking place, Plaintiff began negotiations with PRFMI
to work out a mutually beneficial agreement…. [¶] The parties reached an oral
agreement… which gave Plaintiff a post foreclosure right of redemption
(hereinafter ‘Option Contract’). (Id. ¶20.) “On or about January 15, 2018,
Plaintiff learned, that despite direct and undeniable knowledge of the Option
Contract between Plaintiff and Defendants PRFMI and Lindros, Defendants
Baschung, Thapar, and Keller Williams, individually and in connections with
each other, perpetrated a scheme with Defendants PRFMI and Lindros to interfere
and circumvent Plaintiff’s Option Contract….” (Id. ¶36.) “Plaintiff confronted
Defendants PRFMI and [Keller Williams agent Carl Lindros] about the Letter of
Intent. Defendants PRFMI and Lindros denied they had signed a letter of Intent
with Defendants… in order to induce Plaintiff to continue to the keep the
Property maintained and in legal compliance until the sale was complete.” (Id.
¶38.)
Plaintiff asserts the following causes of action:
(1) Breach
of Oral Contract;
(2) Breach
of Fiduciary Duty;
(3) Fraud
and Deceit;
(4) Intentional
Misrepresentation;
(5) Unfair
Business Practices;
(6) Intentional
Interference with Prospective Relations;
(7) Intentional
Interference with Contractual Relations; and
(8) Constructive
Trust
Defendants FORWARD BEVERLY HILLS INC.; and GURU THAPAR
(collectively “KWBH”) move for summary judgment as to the entire action arguing
that it is barred by res judicata. Alternatively, Defendants move for summary
adjudication as to the second, fifth – seventh, and first and second causes of
action.
Santa
Barbara Superior Court, Case No. 18CV04958 was filed on 10/10/18. (“Santa
Barbara Action”) (SS No. 1.) Los Angeles Superior Court, Case No. 19NWCV00417
was filed on December 2, 2019 and Los Angeles Superior Court, Case No.
21NWCV00836 was filed on December 14, 2021 (collectively the “Norwalk Actions”).
(SS No. 2.)
On
February 18, 2020, Henry Aguila, in his individual capacity, filed a Second
Amended Cross-Complaint in the Santa Barbara Action. Henry Aguila’s Second
Amended Cross-Complaint in the Santa Barbara Action asserted the following
claims: (1) Breach of Oral Option; (2) Breach of Fiduciary Duty; (3) Fraud and
Deceit as to Oral Option Contract; (4) Negligent Misrepresentation; (5) Unfair
Business Practices; (6) Interference with Prospective Economic Advantage; (7)
Avoiding and Abetting a Breach of Fiduciary Duty; (8) Breach of Oral Dismissal
Contract; (9) Breach of Covenant of good Faith and Fair Dealing with Respect to
Oral Dismissal Contract; (10) Fraud and Deceit as to Oral Dismissal Contract;
and (11) Express Contractual Indemnity. (KWBH RJN Ex. 3.) Blackwood; Keller
Williams Realty; Forward Beverly Hills, Inc.; Guru Thaper, and others are named
cross-defendants in the Santa Barbara Action. On August 16, 2021, the Santa
Barbara Court granted summary judgment. (SS No. 3.) The Santa Barbara Breach of
Fiduciary Cause of Action and Unfair Business Practices §17200 Cause of Action
were previously dismissed. (SS No. 4.)
The
subject action, Los Angeles Superior Court, Case No. 19NWCV00417 was filed by
Plaintiff Thee Aguila, Inc. on May 17, 2019. It is undisputed that from
1999-2018, Henry Aguila was the President of Thee Aguila, Inc. (Aguila Decl.,
¶2.) Sometime in 2020, Henry Aguila’s wife, Rocio Rosales, acquired 100% of the
stock in Thee Aguila, Inc. (Rosales Decl., ¶3.)
KWBH
argues that this action is barred by res judicata because the factual
allegations and parties herein are nearly identical to the Santa Barbara
Action. KWBH maintains that the only difference between the two actions
(besides the addition/omission of three claims) is that the Santa Barbara
Second Amended Cross-Complaint was filed by Henry Aguila. The instant action
was filed by Thee Aguila, Inc.
In
Opposition, Plaintiff argues that this action is not barred by res judicata
because Plaintiff Thee Aguila, Inc. was not a party to the Santa Barbara
Action, and was not in privity with a party to the Santa Barbara action.
The elements of res
judicata are: (1) a claim or issue raised in the present action is identical to
a claim or issue litigated in a prior proceeding; (2) the prior proceeding
resulted in a final judgment on the merits; and (3) the party against whom the
doctrine is being asserted was a party or in in privity with a party to the
prior proceeding. (Brinton v. Bankers Pension Services, Inc. (1999) 76
Cal.App.4th 550, 556.)
“California adheres
to a ‘primary rights’ theory in determining whether the claims or causes of
action are the same. The significant factor is whether the claim or cause of
action is for invasion of a single primary right. Whether the same facts are
involved in both suits is not conclusive. Moreover, more than one act may
constitute a single cause of action. Under Pomeroy’s primary rights theory, ‘…a
cause of action consists of 1) a primary right possessed by the plaintiff, 2) a
correspondent primary duty devolving upon the defendant, and 3) a delict or
wrong done by the defendant which consist in a breach of such primary right and
duty. Thus, two actions constitute a single cause of action if they both affect
the same primary right.” (Burdette v. Carrier Corp. (2008) 158
Cal.App.4th 1668, 1685.) Moreover, a dismissal, with prejudice, is a bar to any
future action involving the same subject matter. (Wouldridge v. Burns
(1968) 265 Cal.App.2d 82, 84.)
The
parties do not dispute that there was a final judgment on the merits in the
Santa Barbara Action. It is also undisputed that Thee Aguila, Inc. was not a
party to the Santa Barbara Action.
However,
the “concept of privity for the purposes of res judicata or collateral estoppel
refers ‘to a mutual or successive relationship to the same rights of property,
or to such an identification in interest of one person with another as to
represent the same legal rights and, more recently, to a relationship between
the party to be estopped and the unsuccessful party in the prior litigation
which is ‘sufficiently close’ so as to justify application of the doctrine of
collateral estoppel…. Due process requires that the nonparty have had an
identity or community of interest with, and adequate representation by, the…
the party in the first action…. The circumstances must have also been such that
the nonparty should reasonably have expected to be bound by the prior
adjudication. [Internal Citations Omitted.]” (Citizens for Open Access to
Sand and Tide, Inc. v. Seadrift Ass’n (1998) 60 Cal.App.4th 1053, 1070.)
Here,
Henry Aguila declares that from 1999-2018, Henry Aguila was the President of
Thee Aguila, Inc. (Aguila Decl., ¶2.) Henry Aguila and Thee Aguila, Inc. are
“sufficiently close” so as to justify application of collateral estoppel. Thee
Aguila, Inc. should reasonably have expected to be bound by the Santa Barbara
Action. There is near complete overlap between the causes of action in the
instant case and the Santa Barbara Action. The subject matter of Henry Aguila’s
Second Amended Cross Complaint and Thee Aguila, Inc.’s First Amended Complaint
is identical, and the relief sought in the Subject Action was sought in the
Santa Barbara Action. There are no issues currently pending before this Court
that could not (or have not) been decided by the Santa Barbara Court.
Summary
Judgment is GRANTED. This action is barred by res judicata.