Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC084659, James A. Bascue, Judge.
Law Offices of Saul Reiss and Saul Reiss for Cross-Complainants and Appellants.
Law Offices of L. Douglas Brown and L. Douglas Brown for Cross-Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Cross-complainants, Taft Corporation, Kamyar Lashgari, and Benedict Canyon Villa, LLC, appeal from a judgment in favor of cross-defendants Bernard Lax and Lynda Lax (the Laxes). The Laxes have easement rights on a hillside. Cross-complainants are developers who sought damages for interference with prospective economic advantage once they could no longer grade on the hillside. We affirm the judgment.
II. BACKGROUND
The Laxes owned residential real property at 1452 Benedict Canyon Road in Beverly Hills. A corporation, 9904 Properties, Inc., owned nearby property at 9904 Kip Drive. Benedict Canyon Villa, LLC owned property at 1478 Benedict Canyon Road. Cross-complainants were constructing a single family home on the Benedict Canyon Villa, LLC property. To that end, 9904 Properties, Inc. granted Mr. Lashgari a license to grade a hill on the 9904 Kip Drive property. The Laxes asserted they had a non-exclusive prescriptive easement over the hillside to be graded. On December 16, 2004, the Laxes’ attorney, L. Douglas Brown, wrote a letter asserting their easement rights. Mr. Brown’s December 16, 2004 letter also “demand[ed]” that Mr. Lashgari replace a fence that had been dismantled. When it appeared to the Laxes that Mr. Lashgari intended to proceed with the grading, they filed the present lawsuit. The Laxes sued cross-complainants and 9904 Properties Inc. The Laxes sued to enforce their easement rights and alleged causes of action in the second amended complaint for: quiet title to a prescriptive easement; declaratory relief regarding a prescriptive and equitable easement; and damages for wrongful interference with an easement. On March 22, 2005, Geoffrey Gold, a lawyer for 9904 Properties, Inc., sent a letter to Mr. Lashgari which asserted: the complaint filed by the Laxes on February 25, 2005 had been served on 9904 Properties, Inc; on November 2, 2004, 9904 Properties, Inc. had granted the license to grade to Mr. Lashgari; and Mr. Lashgari had a duty to indemnify and defend 9904 Properties, Inc. Mr. Gold’s letter requested that Mr. Lashgari “cease and desist” all activities at 9904 Kip drove. As a result, cross-complainants had to modify the design of the property they were developing at 1478 Benedict Canyon Road. The altered design increased construction costs and reduced the aesthetic and therefore economic value of the development. According to cross-complainants, Mr. Brown’s December 16, 2004 letter and the filing of the present lawsuit interfered with their prospective economic relationship with 9904 Properties, Inc.
Cross-complainants filed a preliminary injunction motion. Cross-complainants sought authority to grade the easement area and to prohibit the Laxes from interfering with the grading. In their opposition, the Laxes argued in part that cross-complainants had an adequate remedy at law in an action for damages. The trial court denied cross-complainants’ preliminary injunction motion. The trial court ruled: “First, the Court finds that the requested relief does not preserve the status quo, which is the purpose of a preliminary injunction. [Citation.] Second, the Court finds that, if [cross-complainants] ultimately prevail on the merits in this lawsuit, any harm caused by the fact that they could not grade the property during the pendency of the lawsuit could adequately be compensated with monetary damages.”
The Laxes answered the first amended cross-complaint. They asserted affirmative defenses including that cross-complainants’ claims were barred by the statutory Civil Code section 47, subdivision (b) litigation privilege, constitutional free speech rights, and the common law doctrine of justification. Cross-complainants filed a demurrer to the answer and a motion to strike the affirmative defenses. Cross-complainants argued the Laxes were judicially estopped to raise the affirmative defenses. This was because the Laxes had asserted previously in opposition to the preliminary injunction request that cross-complainants had an adequate remedy at law. The trial court overruled the demurrer in relevant part and deemed the motion to strike moot.
The Laxes filed a summary judgment motion. They argued the first amended cross-complaint was barred by the affirmative defenses described above. Cross-complainants opposed the summary judgment motion. The trial court granted summary judgment. The trial court found cross-complainants’ economic interference claims were barred by the Civil Code section 47, subdivision (b) litigation privilege This appeal followed.
III. DISCUSSION
Cross-complainants raise two issues on appeal. First, cross-complainants contend the Laxes were judicially estopped to assert, as affirmative defenses, the Civil Code section 47, subdivision (b) litigation privilege. Cross-complainants argue judicial estoppel arises because the Laxes opposed the preliminary injunction motion on adequate remedy at law grounds, but raised statutory and constitutional privileges as affirmative defenses to the first amended cross-complaint. We independently review the judicial estoppel claim as applied to undisputed facts. (See e.g., Aguilar v. Lerner (2004) 32 Cal.4th 974, 987 [“we cannot agree the doctrine of judicial estoppel applies in this case”]; Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 736 [“We decline to apply the doctrine of judicial estoppel”]; People ex rel. Sneddon v. Torch Energy Services, Inc. (2002) 102 Cal.App.4th 181, 190 [“We exercise our discretion and apply judicial estoppel”]; Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 597-598 [de novo review of trial court’s decision to apply judicial estoppel in granting summary judgment]; Drain v. Betz Laboratories, Inc. (1999) 69 Cal.App.4th 950, 959, fn. 8 [whether to apply judicial estoppel is a question of law for the trial court on undisputed facts].) We find there was no basis for judicial estoppel.
The Supreme Court has explained the judicial estoppel doctrine: “‘“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.”’ (Koo v. Rubio’s Restaurants, Inc.[, supra, ] 109 Cal.App.4th [at p.] 735, fn. omitted.) 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.’ (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183; Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 943.)” (Aguilar v. Lerner, supra, 32 Cal.4th at pp. 986-987; accord, MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.) The Court of Appeal has held, “[I]t is well established that, for the doctrine to apply, the seemingly conflicting positions ‘must be clearly inconsistent so that one necessarily excludes the other.’ (Coleman v. Southern Pacific Co. (1956) 141 Cal.App.2d 121, 128.” (Jackson v. County of Los Angeles, supra, 60 Cal.App.4th at p. 182, cited with approval in Aguilar v. Lerner, supra, 32 Cal.4th at pp. 986-987.) In MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works Co., Inc., supra, 36 Cal.4th at pages 422-423, the Supreme Court further stated: “‘“‘The doctrine’s dual goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies. [Citation.]’”’ (Aguilar[ v. Lerner], supra, 32 Cal.4th [at p.] 986.) Consistent with these purposes, numerous decisions have made clear that judicial estoppel is an equitable doctrine, and its application, even where all necessary elements are present, is discretionary. (E.g., Aguilar [v. Lerner], supra, 32 Cal.4th [at p.] 986; Koo v. Rubio’s Restaurants, Inc.[, supra, ] 109 Cal.App.4th [at p.] 735; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1245; People ex rel. Sneddon v. Torch Energy Services, Inc.[, supra, ] 102 Cal.App.4th [at p.] 189; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1016; see M. Perez Co., Inc. v. Base Camp Condominiums Assn. No. One (2003) 111 Cal.App.4th 456, 469; International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 351; Jackson [v. County of Los Angeles], supra, 60 Cal.App.4th [at p.] 184, fn. 8.)” (Original italics.)
We agree with the Laxes that cross-complainants’ judicial estoppel argument is without merit. There was no inconsistency in the positions taken. In the preliminary injunction opposition, the Laxes argued cross-complainants had an adequate remedy at law. If cross-complainants proved they could have proceeded lawfully with the grading, they could recover damages for any lost economic opportunities. Thus, the right to seek monetary compensation was an adequate remedy. In their answer to the first amended cross-complaint, the Laxes asserted the statutory Civil Code section 47, subdivision (b) litigation privilege, constitutional free speech rights, and common law justification as affirmative defenses. Arguing cross-complainants could sue for damages and any recovery would be an adequate remedy is not inconsistent with asserting they should not recover monetary compensation. In other words, asserting an adequate remedy exists in the form of a damages action does not exclude raising affirmative defenses to the claim for monetary relief. The damages action is an available remedy. The affirmative defenses address cross-complainants’ right and ability to recover monetary compensation. A remedy at law which is otherwise adequate does not become inadequate merely because it is subject to a defense. (Zellner v. Wassman (1920) 184 Cal. 80, 85, disapproved on another point in Sterling v. Taylor (2007) 40 Cal.4th 757, 768-770; 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 759, p. 215; see Morrison v. Land (1915) 169 Cal. 580, 586-587, 590; Wilkison v. Wiederkehr (2002) 101 Cal.App.4th 822, 828-833.)
Zellner v. Wassman, supra, 184 Cal. 82, was an action to enforce a decedent’s oral promise to leave certain property to the plaintiff by will. The plaintiff had an adequate remedy at law in the form of a contract breach action. (Id. at p. 84.) However, there was a defense to the action in that the agreement fell within the statute of frauds. (Id. at p. 85.) The plaintiff argued the failure to comply with the statute of frauds rendered the contract breach action an inadequate remedy at law. The Supreme Court disagreed: “In support of the proposition that the case is amenable to equitable jurisdiction, counsel for plaintiff advances the naïve argument that plaintiff’s remedy at law is inadequate if a legal action is barred by the statute of frauds. This proposition, if adopted, would lead to the anomalous result that all oral agreements within the statute of frauds which had been performed by one of the parties thereto would be specifically enforceable in equity upon the ground that the statute rendered a recovery at law impossible.” (Ibid.; see Chahon v. Schneider (1953) 117 Cal.App.2d 334, 345-346.) In the present case, cross-complainants had an adequate remedy at law in an action for monetary compensation. That remedy did not become inadequate merely because the Laxes had a viable defense to cross-complainants’ damages claim.
Second, cross-complainants argue the only action left— malicious prosecution—is not an adequate remedy at law because to prove the malice element would be an insurmountable burden. We reject that assertion. A malicious prosecution action does not become an inadequate remedy at law merely because it is difficult to prove. (Cf. Zellner v. Wassman, supra, 184 Cal. at p. 85; 5 Witkin, Cal. Procedure, supra, Pleading, § 759, p. 215; see Morrison v. Land, supra, 169 Cal. at pp. 586-587, 590; Wilkison v. Wiederkehr, supra, 101 Cal.App.4th at pp. 828-833.)
IV. DISPOSITION
The judgment is affirmed. Cross-defendants, Bernard Lax and Lynda Lax, are to recover their costs on appeal jointly and severally from cross-complainants, Taft Corporation, Kamyar Lashgari, and Benedict Canyon Villa, LLC.
We concur: MOSK, J. KRIEGLER, J.