Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County. Michael B. Harwin, Judge. Los Angeles County Super. Ct. No. BC257607
John B. Marcin for Defendant and Appellant.
Steven R. Friedman for Plaintiffs and Respondents.
BOREN, P.J.
This case is perhaps the tail end of a lengthy litigation saga involving an underlying partnership venture and 16 acres of real property located in Marina Del Rey. This episode of the saga arises from the simple breach of a $900,000 promissory note. The holders of the promissory note, plaintiffs Jona Goldrich and Jerome Snyder, sued to collect a delinquent sum certain, due on a date certain, from the maker of the note, a general partnership known as WLB-RSK Venture, and its two general partners Warren Breslow and defendant Raymond Kaplan. It is uncontested that the promissory note was properly executed, that payment was due by September 9, 1997, that it was unpaid, and that the action seeking payment was timely filed.
Although Goldrich and Snyder sued the partnership, as well as both partners, Breslow and Kaplan, Breslow is not a party to the present appeal.
Contrary to Kaplan’s contentions, (1) summary judgment was properly granted against him because the trial court did not abuse its discretion in precluding any evidence of an affirmative defense and striking answers as sanctions for Kaplan’s willful disobedience of court orders and for discovery abuse, and (2) the court properly sustained the demurrer to a cross-complaint by Kaplan which raised claims previously adjudicated and resolved adversely to him and thus barred by res judicata.
Thus, the judgment against Kaplan and other defendants for approximately $2.5 million, including interest, is affirmed. Since Kaplan’s sole attack on the order awarding attorney fees is premised on his hoped-for loss of prevailing party status by Goldrich and Snyder, based on a reversal of the judgment under review (which is not to be), we affirm the award of approximately $395,000 in attorney fees.
This court ordered the appeal of the award of attorney fees (No. B185195) consolidated with the appeal from the underlying judgment (No. B181171).
FACTUAL AND PROCEDURAL OVERVIEW
The present appeal is one of a long series of related appeals and writ applications, all initiated by Kaplan and all of them unsuccessful. Kaplan appeals after a judgment in favor of Goldrich and Snyder, who were the holders of a $900,000 promissory note executed by Kaplan and Breslow in September of 1992. Kaplan generally asserted affirmative defenses, but admitted execution of the note. Discovery ensued and was directed at revealing the basis for any affirmative defense or denial of the complaint by Goldrich and Snyder, who sought to foreclose upon the collateral and to enter a money judgment following judicial foreclosure.
The litigation history in this matter includes the following appeals and writ petitions: Kaplan v. Breslow (Feb. 25, 2005, B165509, Super. Ct. L.A. County, No. SC067494) (nonpub. opn.); Kaplan v. Breslow/Goldrich v. Kaplan (Feb. 24, 2005, B162063, B165532, Super. Ct. L.A. County, Nos. BC146720, SC042364) (nonpub. opn.); Kaplan v. S.C.L.A. (Goldrich) (Feb. 22, 2005, B181171 Super. Ct. L.A. County, No. BC257607) (writ pet.); Breslow v. Kaplan (Dec. 19, 2003, B164475, Super. Ct. L.A. County, No. BC257607) (nonpub. opn.); Kaplan v. Goldrich. (Jun. 24, 2003, B167124, Super. Ct. L.A. County, No. BC257607) (appeal dismissed as abandoned); Kaplan v. S.C.L.A. (Breslow) (Nov. 27, 2001, B153126, Super. Ct. L.A. County, Nos. BC146720, SC042364) (writ pet.).
For approximately a year, Kaplan stalled and refused to obey the trial court’s order to provide meaningful and nonevasive discovery. (The specific facts pertaining to Kaplan’s discovery failures are detailed in the discussion section of the opinion herein, as is appropriate to the contentions raised.) Goldrich and Snyder filed motions for summary judgment and for sanctions and termination of the case. The motions were held in abeyance to allow Kaplan to comply with discovery requirements. There was no compliance.
The trial court referred the discovery matter to a retired judge, who concluded that Kaplan had failed to provide any meaningful discovery. The court then independently reviewed the purported responses and also found that Kaplan provided no meaningful discovery such as to allow Goldrich and Snyder to proceed to trial.
Thus, the trial court granted the sanctions motion by Goldrich and Snyder for Kaplan’s willful disobedience of court orders and for discovery abuse, and it granted summary judgment in favor of Goldrich and Snyder. Thereafter, the court entered judgment in favor of Goldrich and Snyder and against Kaplan and the other defendants in the amount of approximately $2.5 million, including interest. The court also awarded attorney fees to Goldrich and Snyder in the sum of $395,438.82, apportioned with 95 percent to be paid by Kaplan and 5 percent by Breslow.
DISCUSSION
I. The trial court did not abuse its broad discretion in imposing, as sanctions for discovery abuse and the violation of court orders, (1) the preclusion of evidence of any purported affirmative defense, and (2) the striking of largely evasive and nonresponsive answers.
In the present case, the trial court found that “[d]espite repeated warnings from the Court over a period of a year, [and] stipulated court orders and orders of court consisting of subpoenas properly served, the Defendants willfully refuse[d] to provide any evidence or comply with the discovery mandated by [statute] and the Court’s orders . . . [as] part of [their] dilatory tactical plan.” The court emphasized that it granted defendants several trial continuances, held motions for sanctions or summary judgment in abeyance for 11 months, assigned the discovery matter to a referee, and thereafter independently reviewed each discovery response. The court concluded that no responses regarding any affirmative defenses were provided because there was no evidence supporting a defense, and that both Kaplan and codefendant Golden were experienced attorneys who “willfully, intentionally and in bad faith” disobeyed court orders and frustrated plaintiffs ability to prepare for trial. Accordingly, the trial court granted the motion for sanctions, striking the answers of Kaplan, Golden and the partnership and precluding them “from adducing any evidence upon any affirmative defense or any area which was the subject of inquiry by the plaintiffs.”
General principles regarding discovery sanctions and appellate review
Failing to respond to interrogatories, giving evasive responses, and making objections lacking substantial justification constitute “misuses of the discovery process” (Code Civ. Proc., § 2023.010, subds. (d)-(g)), which are subject to a motion to compel answers or further answers and to impose monetary sanctions. (§§ 2030.290, 2030.300.) However, once a motion to compel answers is granted, the continued failure to respond or responses with inadequate answers may result in sanctions more severe than a mere monetary sanction. (§§ 2030.290, subd. (c), 2030.300, subd. (e).)
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
For example, as was done in the present case, the court may impose an evidence sanction, prohibiting the party guilty of discovery misuse from introducing designated matters in evidence. (§ 2023.030, subd. (c).) Or, it may impose an issue sanction, ordering that designated facts be “taken as established” against the party guilty of discovery misuse. (§ 2023, 030 subd. (b).) The court may also impose a terminating or “doomsday” sanction striking the pleadings (in whole or in part), or staying further proceedings by that party until the order is obeyed, or rendering a default judgment against that party. (§ 2023.030, subd. (d).)
Contrary to Kaplan’s assertion, except for the sanction of contempt (§ 2023.030, subd. (e)), other sanctions imposed for “[d]isobeying a court order to provide discovery” (§ 2030.010, subd. (g)) do not require a showing of willfulness. As the court recently observed in Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291: “[W]illfulness is no longer a requirement for the imposition of discovery sanctions. (Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 260.) That requirement was dropped from Code of Civil Procedure former section 2023, subdivision (b), as part of the former Civil Discovery Act of 1986. (Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.)” Thus, where no willfulness need be shown because no contempt sanction is imposed (§ 2023.030, subd. (e)), the failure to obey simply means noncompliance with the court’s order.
The trial judge’s choice of sanctions is subject to appellate review only for abuse of discretion. (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228. “The trial judge’s application of discretion in discovery matters is presumed correct, and the complaining party must show how and why the court’s action constitutes an abuse of discretion in light of the particular circumstances.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 432, italics added; see also Collission & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1619-1620.) “The appropriate [appellate] test for abuse of discretion is whether the trial court exceeded the bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) An appellate court may not disturb a discretionary ruling of the trial court unless there is a “‘“clear case of abuse”’” and “‘“a miscarriage of justice.”’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
A mere difference of opinion as to the need for or choice of sanction does not establish an abuse of discretion. “‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for that of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice.’” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449.)
The history of Kaplan’s refusal to comply with his discovery obligations and the trial court’s orders
This factual summary is drawn largely from the extensive factual references in the trial court’s detailed order granting the motion for sanctions.
On September 7, 2001, Goldrich and Snyder filed a simple action to enforce the rights granted to them by the WLB-RSK Venture partnership and its general partners, one of whom was Kaplan, pursuant to a note secured by a 15 percent interest held in an entity known as Channel Gateway. On December 31, 2002, Kaplan moved for summary adjudication. The court then granted the ex parte motion by Goldrich and Snyder for a brief continuance to obtain discovery. Goldrich and Snyder then served special interrogatories, form interrogatories, request for admission, requests for the production of documents, and notices of deposition. Defendants were also served with timely subpoenas. Each of these discovery devices was designed to compel Kaplan to produce evidence and testimony regarding his affirmative defenses to the complaint, including the claims of offset.
In February and again in March of 2003, Kaplan unsuccessfully moved to stay the entire action. Then, despite service of proper subpoenas, Kaplan did not appear for his deposition. Kaplan filed no motion for a protective order; he simply refused to appear and produce documents related to his defense of this case, which the trial court viewed as “in contempt of the court’s subpoena.”
To avoid responding to the discovery and on the eve of his appearance at depositions long ago set, Kaplan petitioned the bankruptcy court for protection for WLB-RSK Venture and filed a motion to remove the action to the bankruptcy court. Although claiming the state court matter was stayed, Kaplan nonetheless served purported responses to the discovery and also argued that he was entitled to proceed with his motion for summary adjudication. Kaplan’s responses consisted, as the trial court found, of “improper blanket boilerplate objections to the entire set of discovery [with the sole response being] a single statement of objections applying to the entire set of discovery.” Kaplan’s objections “encompassed virtually every possible objection, many of which were improper, all stated in one paragraph.”
The trial court specifically ordered Kaplan to respond properly, as mandated by the Code of Civil Procedure, to each of the discovery requests. The court also ordered the motion for summary adjudication held in abeyance pending a response, and it indicated that it would not entertain the motion without meaningful responses and that it would not hesitate to sanction such misconduct in the future.
Meanwhile, the bankruptcy court dismissed the case, remanded the matter to the superior court, and lifted the automatic stay to permit the matter to proceed to trial, which was set to commence the first week of July 2003. As previously noted, when the bankruptcy court dismissed the action, it described it as a litigation tactic filed in bad faith and designed solely to forum shop and delay the progress of the case in state court. (In re WLB-RSK Venture, 296 B.R. 509 (Bankr. C.D.Cal. 2003) affd. 320 B.R. 221, 204 WL 3119789 (9th Cir. BAP (Cal.) 2004) [nonpub. opn.].)
When Kaplan appeared back in state court for trial, he and other defendants sought a continuance. Goldrich and Snyder argued against a delay in the trial, noting that they were injured every day and were without sufficient collateral. Because approximately five months had elapsed and defendants had provided only the objections noted above and not a single answer in discovery, the trial court did not consider the matter ready for trial. At the suggestion and stipulation of Kaplan, in exchange for defendants giving full and meaningful discovery by July 15, 2003, the trial date was continued to November 3, 2003, over the objection of Goldrich and Snyder. Kaplan selected the date for his response. Goldrich and Snyder objected to the delay, but ultimately stipulated to the order compelling full and complete responses within two weeks and to a continued trial date.
The July 15, 2003, deadline passed with no discovery responses at all by Kaplan. Instead, he sent a letter to Goldrich and Snyder, noting the court order (but asserting a failure to recall the deadline) and requesting until July 18, 2003, to comply. That date also passed with no discovery response forthcoming from Kaplan. Nor did Kaplan apply to the trial court for an extension to provide discovery responses.
On September 23, 2003, Goldrich and Snyder moved for evidentiary preclusion and terminating sanctions due to Kaplan’s failure to comply with the July 1, 2003, court order to provide full and complete discovery responses. In response, on October 3, 2003, Kaplan filed an ex parte application to continue or stay the pending motion, which was set for a hearing in several weeks. At that point, almost seven months had elapsed since the discovery was served and over two months since the court-ordered deadline of July 15, 2003, with no discovery responses other than blanket objections. The court denied the ex parte application and once again warned Kaplan to comply with the court’s order or that sanctions would be imposed.
The written discovery cut-off date had long passed; the court reopened discovery as to oral deposition testimony only. The trial date was continued an additional 45 days, over the objection of Goldrich and Snyder, to allow Kaplan to comply with discovery obligations and the court’s orders. The court ruled that, contrary to Kaplan’s assertion, the unilateral withdrawal of his motion for summary adjudication did not relieve him of the obligation to disclose his case through proper discovery.
On October 15, 2003, the date set for the hearing on the sanctions motion, Kaplan still had failed to answer a single discovery request. Once again, Kaplan sought additional time to comply with the trial court’s discovery order and represented that the responses would be meaningful and without objection. To allow Kaplan yet another opportunity to comply, the sanctions matter was continued to October 21, over the objection of Goldrich and Snyder. On that continued date, Kaplan still had not served any response of any kind (other than the blanket objections). Although Goldrich and Snyder, as well as Breslow, had concluded their depositions, Kaplan never sat for a deposition.
Kaplan again requested time to produce proper responses and assured the trial court, yet again, that meaningful responses would be provided if granted additional time. Thus, instead of determining the sanctions matter, the trial court ordered that “the long overdue written discovery responses be provided without objection and that the responses be meaningful responses rather than evasion.” The sanctions and summary judgment motions were again held in abeyance, over the objection of Goldrich and Snyder. Also, the trial court discussed the appointment of a discovery referee and directed that the parties submit three names for selection, and it vacated the November 3, 2003, trial date over the objection of Goldrich and Snyder.
Just prior to the hearing on November 3, 2003, a stack of written discovery responses were provided. Goldrich and Snyder had not yet reviewed all the responses, but noted that Kaplan’s answers relating to his claimed affirmative defense of offset were not responsive and violated the prior court orders. Kaplan urged otherwise. The court appointed a discovery referee, Judge Dion Morrow (retired), and directed that he determine whether the supplemental responses were made without objection, and were meaningful, nonevasive and in compliance with the court’s orders.
Kaplan then attempted to obstruct the proceedings before the discovery referee. For example, at the initial hearing before Judge Morrow on December 3, 2003, Kaplan objected that no order appointing the referee had been entered. Although a file stamped copy of the entered order was produced, out of an abundance of caution, Judge Morrow delayed the hearing to allow the trial court to hear any objections. The court overruled the objection.
On February 9, 2004, approximately one year after Goldrich and Snyder served discovery, Judge Morrow held a lengthy hearing and allowed the parties to present fully their positions on discovery. Judge Morrow evaluated the responses and concluded that Kaplan had failed to provide meaningful, nonevasive responses, contrary to requirements of the July 1, 2004, stipulation and the repeated orders of the trial court.
Kaplan failed to file timely objections to the referee’s report. At the hearing before the trial court to confirm the report, Kaplan sought to file objections past the statutory deadline. The trial court allowed and considered the late objections, but overruled the objections. The trial court indicated that it “independently reviewed each of the purported responses of [Kaplan] and found that the responses were non-responsive and contained frivolous objections, in contravention of the prior court orders, [and that the responses] served no purpose other than to obfuscate and delay the proceedings by not allowing the plaintiff to prepare for trial.”
The trial court then reset the sanctions motion and the summary judgment motion, both of which had been held in abeyance for almost a year, and scheduled the hearing for July 20, 2004, which was over a year after the stipulation by counsel to the order continuing the trial on the condition that full and meaningful responses would be provided. As noted by the trial court, throughout this period of time, nothing prevented Kaplan from providing supplemental responses which might have cured his disobedience of the mandated discovery.
Following briefing and argument by counsel at the scheduled hearing on July 20, 2004, the trial court filed its order granting the motion for sanctions for willful disobedience of court orders and for discovery abuse. The order granted “the motion for sanctions as prayed” and specified, in pertinent part, that Kaplan and other defendants “are precluded from adducing any evidence upon any affirmative defense or any area which was the subject of inquiry by the Plaintiffs” and that their answers “are stricken.” At the same time, the court issued an order granting summary judgment against Kaplan and the other defendants.
The trial court’s order granting the motion for discovery sanctions found that based upon the court’s independent review of the purported responses, Kaplan “repeatedly, willfully and deliberately and in bad faith disobeyed the court’s orders and the mandates of the California Code of Civil Procedure, as well as the Rules of the Superior Court, relating to discovery responses.” As the court emphasized, “The responses were useless and verbose without any substance. The questions were proper and carefully written to call for direct answers.” Kaplan provided evasive answers and no documents.
The court’s order noted, by way of illustration, that all the questions which called for the amount of any claimed offset and the witnesses and documents supporting the claimed amount were responded to without any reference to the amount and how the amount was calculated by defendants. In fact, Kaplan “went so far as to state that the amount of the offset is the amount to which the Defendants are entitled,” which the court aptly found was “a non-sequitur which merely begs the question posed in lieu of responding to the discovery.”
The court’s order also pointed out, as another example, that defendants argued both to the discovery referee and to the court that they were entitled to adduce evidence at the time of trial which was requested during discovery and deliberately concealed from plaintiffs. The court rejected the notion that parties who stipulate to an order to provide discovery responses are entitled to go to trial and spring surprise evidence on their opponent who, as in this case, diligently sought the information critical to preparation for trial.
Indeed, in the present case, an affirmative defense, such as setoff, was a critical issue. The matter involved the collection of a negotiable instrument in the form of a promissory note, which unconditionally promised payment of a sum certain on a date certain and which was collateralized by the very partnership interest for which the note was the sole consideration. Thus, pursuant to Evidence Code section 635 (“obligation possessed by the creditor is presumed not to have been paid”), the burden was on the defendants to show by affirmative evidence that the debt was satisfied or was for some other reason purportedly not owed.
Thus, the trial court concluded it was “inescapable that no responses regarding the affirmative defenses were provided because there is no evidence supporting a defense to the instant action.” The court granted the evidentiary sanctions, struck defendants answers, and granted summary judgment.
Kaplan’s assertions on appeal
On appeal, Kaplan claims that he timely served his discovery responses in good faith and without objections (except as to the assertion of attorney-client and work product privileges), and that his responses were somehow “meaningful and non-evasive.” This self-serving assertion is belied by the facts, as set forth above. Kaplan also complains there was no motion to compel any further responses, and urges that before imposing terminating or “doomsday” sanctions, the court should have first imposed lesser sanctions. However, the suggested policy of imposing lesser sanctions first is not an inflexible rule of law. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496-497.) A terminating sanction for continued willful discovery violations is not an abuse of discretion, even if no monetary or other sanctions were first imposed. (Id. at p. 497; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244.)
Kaplan also contends that because he answered all of the discovery requests, there was no willful failure to comply and thus discovery sanctions were inappropriate. (See R.S. Creative, Inc. v. Creative Cotton, Ltd., supra, 75 Cal.App.4th at p. 495) First, as previously noted, the element of willfulness is no longer a prerequisite for the imposition of discovery sanctions complained of. (Reedy v. Bussell, supra, 148 Cal.App.4th at p. 1291.) Second, Kaplan’s failure to comply was, in any event, willful. As the trial court aptly found, his belated responses were “non-responsive” as well as “useless and verbose without any substance.” Kaplan’s responses, amounting to evasive answers and the absence of any documents over the course of a lengthy period of time, were properly deemed a willful failure to comply.
Kaplan further asserts that sanctions should not have been imposed because there was no showing of a “reasonable and good faith attempt to resolve informally” the issues raised in the motion (§ 2025, subd. (o)) by any attempt to meet and confer prior to the motion. But, the statutory provision for informal resolution does not apply where, as here, the party has failed to respond within the statutory time period. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906.) In any event, the court noted that there had been many meet and confer sessions held, but that Kaplan had failed to attend any of the numerous discussions.
Nor is there any merit to the complaint that the court’s order that all objections be omitted improperly encompassed Kaplan’s asserted attorney-client and work product privileges. Even apart from any properly asserted privileges, there was an abundant factual basis for the sanctions imposed, and any error in the matter complained of was of no consequence.
Finally, Kaplan claims that the motion for sanctions was procedurally defective because it should not have been filed until 21 days after it was served, pursuant to section 128.7, subdivision (c)(1)), which constitutes essentially a statutory “safe harbor” waiting period. However, the sanctions herein were not imposed under section 128.7, which by its terms does “not apply to disclosures and discovery requests, responses, objections, and motions.” (§ 128.7, subd. (g).) Rather, sanctions were properly imposed pursuant to sections 2030.290 and 2030.300.
Accordingly, the trial court did not abuse its broad discretion in imposing sanctions, which compelled the ensuing summary judgment against Kaplan.
II. The trial court properly sustained the demurrer to the cross-complaint by Kaplan which raised claims previously adjudicated and resolved adversely to him.
Kaplan contends that the trial court erred in sustaining the demurrer against him without leave to amend his cross-complaint, which alleged causes of action for breach of fiduciary duty owed by partners, interference with prospective economic advantage, and breach of the implied of good faith and fair dealing. According to Kaplan, the court failed to accept as true the allegations in the cross-complaint and improperly judicially noticed and focused upon the allegations in Kaplan’s prior complaint.
A demurrer tests the legal sufficiency of the complaint. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo; i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125; Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43.) We deem true all material facts properly pled (Serrano v. Priest (1971) 5 Cal.3d 584, 591), as well as those facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)
Significantly, we may also consider facts subject to judicial notice (§ 430, subd. (a); Lincoln Property Co., N.C., Inc. v. The Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 911), which are not reasonably subject to dispute. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144-1145.) A demurrer may be properly sustained based on res judicata after judicial notice of official acts or records of another court. (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.)
While a decision to sustain or overrule a demurrer is subject to de novo review on appeal, a grant or denial of leave to amend calls for an exercise of discretion on the part of the trial court. (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Hernandez v. City of Pomona, supra, 49 Cal.App.4th at p. 1497.) Denial of leave to amend is reviewed for abuse of discretion. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) The trial court abuses its discretion in denying leave to amend only if the plaintiff shows a reasonable possibility of curing any defect by amendment. (Ibid.)
Guided by these principles, it is apparent that the issues raised in Kaplan’s cross-complaint were the same issues he previously raised unsuccessfully in a prior complaint. In that prior complaint, summary judgment was granted against Kaplan by the referee (Justice Edward A. Panelli (ret.)) because Kaplan lacked standing since only the partnership itself was the real party in interest capable of asserting personal standing. Kaplan does not dispute the conclusion of the trial court below that it had “heard and disposed of repeated identical re-filed actions by Mr. Kaplan alleging the same nexus of wrongs which were adjudicated by him in the matter disposed of by the judgment of the court based upon the decision by Justice Panelli.”
We subsequently affirmed Justice Panelli’s ruling in Kaplan v. Breslow/Goldrich v. Kaplan (Feb. 24, 2005, B162063, B165532, Super. Ct. L.A. County, Nos. BC146720, SC042364) (nonpub. opn.).
Goldrich and Snyder properly assert that Kaplan’s recycled theories in his cross-complaint are barred by res judicata. Once a party has had the opportunity “‘in a court of competent jurisdiction [to litigate its claim, the party] should not be permitted to litigate it again to the harassment and vexation of his opponent.’” (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1427.) In fact, even though a cause of action is titled differently or a new “theory” is raised, the doctrine of res judicata prevents a party from relitigating the same “issue” or “primary right” raised in prior litigation. (Ibid.; see also Lincoln Property Co., N.C., Inc. v. Travelers Indemnity Co., supra, 137 Cal.App.4th at pp. 912-913 .) One cannot “split” a primary right into different legal theories or different causes of action. When there is only one primary right, an adverse judgment in the first suit is a bar, even though the second suit (here, a cross-complaint) is based on a different theory or seeks a different remedy. (Lincoln Property, supra, at p. 913.)
Moreover, we note that Kaplan has not addressed res judicata in his opening brief and has not filed a reply brief. His failure to rebut the res judicata argument raised by Goldrich and Snyder may be treated as a waiver or concession of the issue. (Curtis v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 803, fn. 4; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
Accordingly, Kaplan--who on appeal essentially ignores the ruling by Justice Panelli and its affirmance by this court--is barred by res judicata from asserting the claims in his cross-complaint.
III. Attorney fees.
Since Kaplan’s sole attack on attorney fees is premised on his hoped-for loss of prevailing party status by Goldrich and Snyder, based on a reversal of the judgment under review (which is not to be), we affirm the order awarding approximately $395,000 in attorney fees.
DISPOSITION
The judgment is affirmed, and the order awarding attorney fees is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.
Joseph Golden was also a defendant, but solely as to a cause of action relating to setting aside a purported lien granted on the partnership’s interests, which Kaplan and Golden claimed was superior and took precedence over the liens of Goldrich and Snyder. Golden is not a party to the present appeal.
There was also an unsuccessful bankruptcy proceeding, dismissed by the bankruptcy court as a litigation tactic filed in bad faith and designed solely to forum shop and delay the progress of the case in state court. (In re WLB-RSK Venture, 296 B.R. 509 (Bankr. C.D.Cal. 2003) affd. 320 B.R. 221, 204 WL 3119789 (9th Cir. BAP (Cal.) 2004) [nonpub. opn.].)