Judge: Stephen P. Pfahler, Case: 23STCV28698, Date: 2024-08-27 Tentative Ruling

Case Number: 23STCV28698    Hearing Date: August 27, 2024    Dept: 68

Dept. 68

Date: 8-27-24 c/f 8-8-24

Case #23STCV28698

DEMURRER

MOVING PARTY: Defendant, Thomas Lombardi

RESPONDING PARTY: Plaintiff, Roderick Gaines, pro per

RELIEF REQUESTED

Demurrer to the Complaint

SUMMARY OF ACTION

Plaintiff Roderick Gaines inherited certain real property in 2006, and elected to sell said property in 2007. Plaintiff entered into a five year lease agreement with third parties Harvey and Cecile Cloyd, which late led to a sales agreement for $1.1 million in 2011. The Cloyds failed to qualify for the mortgage. Plaintiff alleges fraud in the attempted purchase. A prior lawsuit against the Cloyds was represented as filed, 19STCV10638, but not attached as an exhibit to the complaint, as referenced. Defendant Thomas Lombardi is identified as an attorney, but it remains unclear how Lombardi in any way participated in the underlying course of conduct with the Cloyds or Plaintif.

On January 22, 2023, Plaintiff in pro per filed a complaint for (1) Civil Conspiracy; ) (2) Fraudulent ) Misrepresentation; ) (3) Fraud; 16 Thomas E. Lombardi, An Individual,) (4) Elder Abuse; (5) Intentional Infliction Severe Emotional Distress. On March 27, 2024, Plaintiff dismissed Palmer Lombardi & Donohue, LLP.

RULING: Sustained without Leave to Amend.

Request for Judicial Notice: Granted.

Defendant Thomas Lombardi submits the subject demurrer to the complaint on grounds of claim preclusion and statute of limitations. Plaintiff in opposition maintains all claims are properly pled. Plaintiff also denies any bar under the statute of limitations. Defendant in reply disregards the opposition response addressing the substantive elements of the causes of action, and otherwise disregarding the res judicata/collateral estoppel positions. Defendant reiterates the claim preclusion and statute of limitations discussion.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

Defendant contends claim preclusion bars the subject action in that the subject action constitutes the seventh lawsuit filed since the collapse of the sale agreement for the property. The opposition lacks any specific address to this particular contention. The court addresses the standard.

The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.  It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.  Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit. All claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.) “Res Judicata is not a bar to claims arising after the filing of the initial complaint.” A party may assert new claims in an amended pleading, “but if no such pleading is filed, a plaintiff is not foreclosed. [Citation.] The general rule that a judgment is conclusive as to matters that could have been litigated ‘does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [Citation]’.” (Allied Fire Protection v. Diede Const., Inc. (2005) 127 Cal.App.4th 150, 155; Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.)

“In general, collateral estoppel precludes a party from relitigating issues litigated and decided in a prior proceeding.  (Citations.) ‘Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Citation.)’” (Gikas v. Zolin (1993) 6 Cal.4th 841, 848–849.)

“Collateral estoppel is used offensively when … ‘the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant.’ (Citations.)” (Smith v. Exxon Mobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1414.)

The court takes judicial notice for purposes of considering the claim preclusion issues. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 148.) The request for judicial notice shows the first action, BC593634, filed on September 25, 2015, by Plaintiff in pro per, against the Cloyds, went to arbitration, and the arbitrator ruled in favor of the Cloyds. Judge was entered on February 8, 2018. On September 5, 2017, Gaines filed a second action against the Cloyds, BC674832. The demurrer to the complaint was sustained without leave to amend on March 1, 2018. On September 11, 2019, Gained filed the third complaint against the Cloyds, 19STCV32195. The court sustained the demurrer without leave to amend on February 27, 2020. On September 9, 2020, Gaines filed the fourth complaint against the Cloyds, 20STCV34227. On May 2, 2021, the court granted the motion for judgment on the pleadings without leave to amend, and entered judgment on May 17, 2021. On October 4, 2022, Plaintiff filed the fifth complaint against the Cloyds, 22STCV32629. On August 15, 2023, the court sustained the demurrer to the complaint without leave to amend. On March 20, 2024, Gaines filed the sixth complaint against the Cloyds, 24STCV06963. The case was dismissed with prejudice on April 19, 2024.

Although Plaintiff named a new defendant, Thomas Lombardi, the subject complaint again challenges the underlying sale of the home involving the Cloyds. Res judicata directly bars claim splitting and piecemeal litigation, as presented in the instant action. (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 897; Gikas v. Zolin, supra, 6 Cal.4th at pp. 848–849; Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914.) Even if res judicata principles are not applicable, the entire action is alternatively barred under the doctrine of collateral estoppel.

The court sustains the demurrer without leave to amend.

Lombardi submits additional argument on grounds of statute of limitations. The court declines to consider the merits of the argument and affirms the demurrer on grounds of res judicata and collateral estoppel. (Allied Fire Protection v. Diede Const., Inc., supra, 127 Cal.App.4th at p. 155; Planning and Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at p. 226.)

Defendant to submit a judgment.

Defendant to give notice.