Reile v. Live Stores, Inc. CA4/1 ( 2015 )

Filed 10/23/15 Reile v. Live Stores, Inc. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
WOLFGANG REILE, D066758
Plaintiff and Appellant,
v. (Super. Ct. Nos.
37-2011-00097722-CU-BC-CTL
LIVE STORES, INC. et al., 37-2013-00072527-CU-BC-CTL)
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, John S.
Meyer, Judge. Affirmed.
Sandler, Lasry, Laube, Byer & Valdez and Thomas R. Laube for Plaintiff and
Appellant.
The Law Office of Geoffrey C. Chackel and Geoffrey C. Chackel; Duckor
Spradling Metzger & Wynne and Robert M. Shaughnessy for Live Stores, Inc., Mega
Super Stores, Inc., and Christopher Williams, Defendants and Respondents.
Appellant Wolfgang Reile appeals from a judgment of dismissal in favor of Live
Stores, Inc. (Live Stores) entered after the trial court sustained without leave to amend
demurrers as to Reile's causes of action for foreclosure of security interest and breach of
promissory note and conversion alleged in his first amended complaint.1 Reile contends
(1) the trial court erred by finding that res judicata barred his causes of action; (2) the
doctrine of judicial estoppel was not applicable here; (3) the court erroneously ruled Live
Stores defaulted under the promissory note or settlement agreement by entering into a
licensing agreement with a third party as a separate ground for sustaining the demurrer;
and (4) the court erroneously failed to grant him leave to amend his operative complaint.
Concluding the court did not err by applying res judicata and, further, judicial estoppel
barred Reile's causes of action for foreclosure of security, interest and breach of
promissory note and conversion asserted in the second lawsuit, we affirm the judgment.
1 The court overruled Live Stores' demurrer as to Reile's causes of action for
fraudulent conveyance and constructive trust. Reile purported to appeal from the court's
order on the demurrer but this court informed him he was required to take an appeal from
the ensuing judgment of dismissal, and that under the one final judgment rule, he would
have to dismiss any remaining cause of action with prejudice. Subsequently, Reile
requested the trial court dismiss the remaining two causes of action as to Live Stores,
which the court did. In December 2014, the trial court entered judgment of dismissal as
to Live Stores. We then allowed this appeal to proceed.
2
FACTUAL AND PROCEDURAL BACKGROUND
Live Stores I
Live Stores was an e-commerce business that Reile formed in 2007.2 "When Live
Stores was in business, its principal products were heating and cooling systems (such as
refrigerators). It would advertise online using various websites hosted on their owned
[sic] domain names to attract customers. If a customer made an online purchase Live
Stores would have the product shipped directly from the manufacturer once the customer
paid through one of the online methods of paying." Reile claims he sold some of his
shares in Live Stores, and the new majority owners installed Jan Platovsky as its chief
executive officer. In September 2011, Reile sued Platovsky and Live Stores in San Diego
Superior Court. That case settled in September 2012, with Live Stores executing a
promissory note.3 (Reile, et al. v. Platovsky, et al., (Super. Ct. S.D. County, 2012, No.
37-2011-00097722-CU-BC-CTL) (Live Stores I).)
The trial court, in ruling on the present demurrer, summarized the settlement
agreement's terms: "Lives Stores I settled for $182,500. The settlement agreement
2 The pleadings in Live Stores I are not included in the appellate record. We take
some of the background facts from Reile's March 2014 declaration submitted in support
of his ex parte application in the trial court.
3 The promissory note provides: "If a default exists for any reason other than the
failure of [Live Stores] to make a payment when due, and such default shall continue for
a period of ten (10) calendar days, then payee [Reile] may, at his option declare the whole
sum then remaining unpaid immediately due and payable. In order to exercise his option
to accelerate for default hereunder, [Reile] shall provide written notice to [Live Stores] at
the address listed for notices hereunder and provide [Live Stores] five calendar days from
the date of delivery of said notice to cure the default by paying all sums then due and
owing to [Reile], including a late fee of $50.00."
3
provided: Defendants (Platovsky and Live Stores) agreed to pay plaintiffs $100,000 by
wire transfer upon execution of the agreement and signed request for dismissal. Live
Stores also agreed to execute a promissory note for $82,500, at 6 [percent interest]
beginning September 1, 2012. Monthly payments on the note in the amount of $2,000
[per] month were to be paid beginning June 1, 2013. As of June 1, 2014, the monthly
payments would increase to $3,496.16 [per] month, with payments continuing for the
next 19 months. Live Store[s] pledged as security the following websites: 'www.cooler-
store.com, www.heater-store.com, and www.coolerdirect.com, including all electronic
and database files used on the websites and each domain name.' The parties also agreed
to transfer to each other ownership interests in the companies they co-owned, so that all
shares in Live Stores owned by plaintiffs were transferred to Live Stores. [¶] Defendant
Live Stores failed to make the installment payments when due."
The trial court explained subsequent developments in the case. "On June 11,
2013, [Reile] wrote to [Live Stores]: 'Live Stores, Inc. is in default of the promissory
note dated September 1, 2012, in the principal sum amount of $82,500 for failure to make
the monthly payment due on June 1, 2013. [¶] Pursuant to paragraph 2 of the note, in the
event Life [sic] Stores, Inc. does not cure the default within 5 calendar days of the date of
delivery of this notice, [plaintiff] will exercise all of his options under the note.' "
Live Stores II
In October 2013, Reile again sued Live Stores. He asserted causes of action for
foreclosure of security interest (Cal. U. Com. Code, § 9601) and breach of the September
1, 2012 promissory note. (Reile v. Live Stores, Inc., et al. (Super. Ct. S.D. County, 2014,
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No. 37-2013-00072527-CU-BC-CTL (Live Stores II).) The complaint alleged that under
the promissory note, "Reile is the present owner and holder of the [promissory note] and
security interest. The [promissory] note lists three websites as collateral." Regarding the
foreclosure cause of action, the complaint alleged that despite Reile's sending Live Stores
a notice of default, Live Stores had failed to pay its installments under the note; therefore,
Reile alleged he had "a lien on the Collateral for the sum of $82,500, with interest from
June 1, 2013[,] at the rate of six percent (6%) per annum, plus late fees, and all costs and
expenses, including attorney's fees, in connection with the enforcement of the
[promissory note]." Reile sought immediate possession and ownership of the collateral.
Reile further sought "the appointment of a receiver, that the proceeds of such a sale be
applied in payment of the amounts due [him] and secured by the [c]ollateral, and that
[Live Stores] be barred and foreclosed from all rights, claims, interests of equity of
redemption in the collateral." Reile asserted as to the breach of promissory note cause of
action that he "suffered actual damages, and continues to suffer damages, totaling
approximately $82,500, as of June 11, 2012, plus interest, late fees, costs, and attorneys'
fees, and such other amounts as may be proven at trial."4
4 The September 1, 2012 promissory note was attached and incorporated into the
complaint by reference, and stated that Live Stores promised to pay Reile $82,500 plus
interest in installments by January 1, 2016. The promissory note's default provision
states three ways a default could occur: "(1) failure of [Live Stores] to perform any
agreement hereunder or pay any obligation secured hereby when due; or (2) an
application for appointment of a receiver for, making of a general assignment for the
benefit of creditors by, or [(3)] insolvency of [Live Stores]." The provision continues:
"If a default exists for any reason other than the failure of [Live Stores] to make a
payment when due, and such default shall continue for a period of ten (10) calendar days,
5
In March 2014, Reile moved the trial court for a temporary restraining order,
seeking "an order to show cause for appointment of a limited purposes receiver. The
receiver would take over and control the [three] domain names which are pledged to
[Reile]."
In March 2014, Reile filed a first amended complaint against Live Stores, stating
its corporate privileges had been suspended by the California Secretary of State. Reile
added as defendants Mega Super Stores, Inc., which assertedly took over Live Stores'
assets after Live Stores went out of business, and Christopher Williams, who allegedly
had acquired a controlling interest in Live Stores and later had "virtually sole and
complete control over the operations and assets of Mega Super Stores since its formation
in August 2013." Reile asserted causes of action against all defendants for foreclosure of
security interest in personal property; breach of promissory note; fraudulent conveyance;
conversion and involuntary trust; and, a cause of action for successor entity liability
against Mega Super Stores alone.
Reile alleged in the first amended complaint: "The [promissory note] provided
that [Reile] would have a security interest in the collateral until payment of the full
then [Reile] may, at his option, declare the whole sum then remaining unpaid
immediately due and payable. In order to exercise his option to accelerate for default
hereunder, [Reile] shall provide written notice of default to [Live Stores] . . . and provide
[Live Stores] five calendar days from the date of delivery of said notice to cure the
default by paying all sums then due and owing to [Reile], including a late fee of $50.00.
[¶] In the event of a default, [Reile] shall have all remedies available in law or equity.
Under no circumstances shall the failure of [Reile] to enforce the terms of this
[promissory note] be construed as a waiver of the terms or otherwise operate to restrict
[his] ability to enforce the terms of this [promissory note] in any way."
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amount due on the note, together with interest and other fees described in the note, or any
judgment for such amounts. . . . failure of [Live Stores] to pay any of the installments or
to commit any of the acts of default described in the note, the whole amount of the debt
specified in the note would become immediately due and payable."5 (Some
capitalization omitted.)
Reile's Ex Parte Application in Live Stores I
In April 2014, Reile applied ex parte to enforce the settlement agreement in Live
Stores I and appoint a receiver. Reile asserted that Live Stores had defaulted on the
monthly payments, having paid nothing on the promissory note. Reile asserted that as of
April 1, 2014, the principal sum of $22,000 was due. He sought to enforce the settlement
agreement under Code of Civil Procedure section 664.6 and requested judgment against
Live Stores in the amount of $22,000 plus $1,004 in interest. Reile relied on the
settlement agreement's provision stating "[Reile] may move to set aside dismissal and
have judgment entered for the amount then due and owing under the promissory note
including payment of the principal, interest and attorneys' fees and costs of collection less
any amounts that were paid before the default." (Some capitalization omitted.)
5 Williams cross-complained against Reile and other defendants, asserting causes of
action for fraud-intentional misrepresentation; fraud-concealment; breach of contract,
breach of the covenant of good faith and fair dealing; negligent infliction of emotional
distress, promissory estoppel, breach of fiduciary duty, and indemnity. Williams and
Mega Stores request we dismiss the appeal as to them because the judgment does not
finally dispose of any cause of action as between Reile and them. Reile asserts he did not
file an appeal against any party other than Live Stores. We agree Williams and Mega
Stores, Inc. are not parties to this appeal and therefore their motion to dismiss is moot.
7
On April 16, 2014, the trial court granted Reile's ex parte application and entered
judgment in Reile's favor for $22,000, which included the first eleven monthly
installment payments (from June 2013 to April 2004 inclusive) which were due, plus
$1,004 in interest.
Defendants' Demurrers to Reile's First Amended Complaint
In May 2014, Live Stores demurred to each cause of action in the first amended
complaint on grounds they were barred by the doctrine of res judicata and merger.
Williams and Mega Super Stores separately demurred to Reile's first amended complaint.
Reile opposed the demurrer, arguing that in the first amended complaint he had
sought "to vindicate separate and distinct primary rights based on defendants' continuous
and recurring breach under the note since entry of judgment. Contrary to defendants'
claims, [his] right to the full amount of the note ($82,500) did not accrue on June 11,
2013[,] and was not 'extinguished' by entering judgment on April 16, 2014[,] against Live
Stores." (Some capitalization omitted.) Reile also pointed out that under the promissory
note's terms, he was entitled to enforce the note in any way he chose. The Note
specifically states: "In the event of a default, [Reile] shall have all remedies available in
law or equity. Under no circumstances shall the failure of [Reile] to enforce the terms of
this note be construed as a waiver of the terms or otherwise operate to restrict [Reile's]
ability to enforce the terms of this note in any way." (Some capitalization omitted.)
Reile made a cursory request for leave to amend if the court "concludes there are grounds
to sustain the demurrer."
8
In their joint reply, defendants reiterated their argument that a demurrer was
proper on res judicata grounds because Reile had elected to accelerate the entire $82,500
unpaid balance and had asserted that claim in his original and first amended complaints.
Defendants argued that "whether or not [Reile] now claims he was entitled to accelerate
is entirely irrelevant—he did elect to accelerate on multiple occasions and had
accelerated at the time he entered judgment on April 16, 2014." Defendants asserted that
every cause of action was predicated upon the existence of a promissory note that had
been extinguished through the entry of judgment in Live Stores I.
Defendants also argued that judicial estoppel barred Reile's first amended
complaint because Reile "elected to accelerate the entire unpaid balance of $82,500 upon
a single event of default." Defendants further argued: "[Reile] completely ignores the
legal effect of his June 11, 2013[ ] election to accelerate the entire $82,500 unpaid
balance and ignores his affirmative allegations in the complaint and first amended
complaint that 'Reile hereby exercises his right to accelerate and demand payment in full
of the total amount due under the note.' . . . This allegation was first made on October
22, 2013, and again on March 27, 2014—three weeks before judgment was entered.
[Reile] cannot blow hot and cold on this issue." (Italics and some capitalization omitted.)
Finally, defendants argued: "The impact of this election was significant and prejudicial
to defendant because it deprived defendant of the right to cure by making a single 'catch-
up' payment of $2,000 and replaced that payment obligation with the entire $82,500
balance. The resulting domino effect of this election resulted in this lawsuit and the entry
of judgment. For [Reile] to now quietly suggest they [sic] did not accelerate is factually
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untrue, contradicts his own allegations and should be rejected as a misuse of judicial
process." (Some capitalization omitted.)
In August 2014, the court sustained the defendants' demurrer without leave to
amend as to the causes of action for foreclosure of security interest and breach of
promissory note and conversion. The court concluded res judicata applied: "At the time
the judgment was entered [in Live Stores I, Reile] had asserted in Live Stores II that Live
Stores had failed to make any payments under the promissory note and ha[d] transferred
all rights to the domain names to another entity. Both these events constitute a breach
under the promissory note. Transferring the rights to the domain names would constitute
a default for a reason other than the failure to make a payment when due. [¶]
Accordingly, at the time [Reile] sought to enforce the settlement agreement and enter
judgment, [his] right to accelerate payment under the promissory note had accrued. The
right could have, and should have, been asserted." (Some capitalization omitted.)
DISCUSSION
I.
A. Reile's Contention
The gravamen of Reile's contention on appeal is that his settlement agreement with
Live Stores was an installment contract lacking an acceleration clause. He maintains that
when Lives Store defaulted, he was entitled to recover only those monthly installments
that had come due at the time of the lower court proceedings. He argues res judicata does
not bar him from exercising his separate right to recover future installments from Live
Stores as they come due.
10
Acknowledging he had previously asserted in pleadings his right to recover all
monies owed from Live Stores, Reile contends his "unverified allegation in the first
amended complaint that the [promissory note] permitted acceleration did not override the
terms of the [promissory note]," and his "erroneous allegation that the [promissory note]
permitted acceleration due to a monetary default does not change or expand his rights
under the [promissory note]."
B. Standard of Review
We review a ruling on a demurrer independently. We give the pleading a
reasonable interpretation, reading it as a whole and its parts in their context, to determine
whether sufficient facts are stated to constitute a cause of action or a right to the relief
requested. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We accept as true all facts
properly pleaded, evidentiary facts found in exhibits attached to the complaint, and facts
that may be implied or inferred from those expressly alleged. (Morillon v. Royal Packing
Co. (2000) 22 Cal.4th 575, 579.) In addition to the facts actually pleaded, we also may
consider facts judicially noticed. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th
857, 877.) If a demurrer was sustained without leave to amend, but the defect was
curable by amendment, we would find an abuse of discretion in that ruling. However, if
the order is correct as a matter of law, we would not reverse it. (Ibid.) We examine the
legal sufficiency of the judgment, not necessarily the reasoning of the trial court.
(D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19; Otay Land Co. v. Royal
Indemnity Co. (2008) 169 Cal.App.4th 556, 561-562.)
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C. Res judicata Principles
The California Supreme Court explains: " 'Res judicata' describes the preclusive
effect of a final judgment on the merits. 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. Collateral estoppel, or issue preclusion, 'precludes
relitigation of issues argued and decided in prior proceedings.' [Citation.] 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; a judgment for the defendant
serves as a bar to further litigation of the same cause of action." (Mycogen Corp. v.
Monsanto Co. (2002) 28 Cal.4th 888, 896-897, fn. omitted.)
" 'Two proceedings are on the same cause of action if they are based on the same
"primary right." [Citation.] The plaintiff's primary right is the right to be free from a
particular injury, regardless of the legal theory on which liability for the injury is based.
[Citation.] The scope of the primary right therefore depends on how the injury is defined.
A cause of action comprises the plaintiff's primary right, the defendant's corresponding
primary duty, and the defendant's wrongful act in breach of that duty. [Citation.] [¶] An
injury is defined in part by reference to the set of facts, or transaction, from which the
injury arose.' " (Silverado Modjeska Recreation & Park District v. County of Orange
(2011) 197 Cal.App.4th 282, 297-298.) "Thus, a single cause of action is based on the
harm suffered, rather than on the particular legal theory asserted or relief sought by the
plaintiff." (Balasubramanian v. San Diego Community College Dist. (2000) 80
Cal.App.4th 977, 991; see also Boblitt v. Boblitt (2010) 190 Cal.App.4th 603, 610;
12
Friedman Prof. Management Co., Inc. v. Norcal Mutual Ins. Co. (2004) 120 Cal.App.4th
17, 28 ["core concept" of the primary rights doctrine is the harm suffered].)
Similarly, a cause of action is independent of the remedy and relief sought;
seeking more than one type of relief in connection with a single injury does not create
more than one cause of action. (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual
Ins. Co. (1993) 5 Cal.4th 854, 860; Crowley v. Katleman (1994) 8 Cal.4th 666, 682.)
Further, the parties are not required to have actually litigated an issue in the prior lawsuit
for it to be precluded, as res judicata also bars issues that could have been litigated, as
long as the later-raised issues constitute the same cause of action involved in the prior
proceeding. (Federation of Hillside and Canyon Associations v. City of Los Angeles
(2004) 126 Cal.App.4th 1180, 1202; Weikel v. TCW Realty Fund II Holding Co. (1997)
55 Cal.App.4th 1234, 1245.)
"A clear and predictable res judicata doctrine promotes judicial economy. Under
this doctrine, 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." ' [Citation.] A
predictable doctrine of res judicata benefits both the parties and the courts because it
'seeks to curtail multiple litigation causing vexation and expense to the parties and wasted
effort and expense in judicial administration.' " (Mycogen Corp. v. Monsanto Co., supra,
28 Cal.4th at p. 897, italics omitted.)
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D. Analysis
Here, the court did not err by sustaining the demurrer to the causes of action for
foreclosure of security interest and breach of promissory note on res judicata grounds.
The parties in Live Stores I and Live Stores II were the same. The primary right at issue
in both lawsuits was the same: Reile's right to recover a debt owed by Live Stores
following its default. In Live Stores I, Reile reached a settlement agreement on that issue,
and subsequently the court granted his ex parte application in which he sought 11 months
of payment owed, despite his having claimed in Live Stores I a right to the entire debt
owed. Reile, having raised the claim for the larger amount owed, was barred by res
judicata from relitigating this same issue in the second lawsuit. As the court stated in
Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at page 905, "It is well established
that a judgment in an action for breach of contract bars a subsequent action for additional
relief based on the same breach."
For res judicata purposes, we need not resolve which of Reile's two arguments for
the amount of the monies owed is meritorious. That was an issue to be resolved in the
trial court where Reile made his election of remedies. Likewise, on appeal Reile's
argument that the settlement agreement was an installment contract and therefore he
could not have collected on installments that had not come due when he filed his ex parte
application is unavailing. Under res judicata, " '[i]f the matter was within the scope of the
action, related to the subject-matter and relevant to the issues, so that it could have been
raised, the judgment is conclusive on it . . . . The reason for this is manifest. A party
cannot by negligence or design withhold issues and litigate them in consecutive actions.
14
Hence the rule is that the prior judgment is res judicata on matters which were raised or
could have been raised, on matters litigated or litigable.' " (Aerojet-General Corp. v.
American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 402, quoting Sutphin v. Speik
(1940) 15 Cal.2d 195, 202.)
E. Motion for Leave to Amend
We reject Reile's contention the trial court should have granted him leave to
amend his complaint to remove his inaccurate pleadings regarding his right to
acceleration of the payments from Live Stores. Reile has the burden to show in what
manner the pleadings may be amended and how such amendments will change the
pleadings' legal effect. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990)
222 Cal.App.3d 1371, 1388.) This showing may be made for the first time on appeal.
(Code Civ. Proc., § 472c, subd. (a);6 Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th
962, 971.)
Here, Reile's proposed amendment is unavailing. Even if he were permitted to
strike the allegations from his complaint regarding the claim for the total amount of
monies owed, he would still be left with the judicially noticed notice of default, which
states he was entitled to all the monies that Live Stores owed following its default.
6 Code of Civil Procedure section 472c, subdivision (a) states: "When any court
makes an order sustaining a demurrer without leave to amend the question as to whether
or not such court abused its discretion in making such an order is open on appeal even
though no request to amend such pleading was made."
15
" ' "Judicial notice is the recognition and acceptance by the court, for use by the trier of
fact or by the court, of the existence of a matter of law or fact that is relevant to an issue
in the action without requiring formal proof of the matter." ' " (Poseidon Development,
Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) When ruling
on a demurrer, "[a] court may take judicial notice of something that cannot reasonably be
controverted, even if it negates an express allegation of the pleading." (Ibid.)
Accordingly, the trial court did not abuse its discretion in denying Reile leave to amend
his first amended complaint.
II.
Judicial Estoppel Also Bars Reile's Claim
A separate ground for affirming the trial court's ruling is that Reile's claim in Live
Stores II is barred by judicial estoppel. Defendants raised the issue in their demurrer
reply papers below, and Reile addresses it in his opening brief.
" ' " ' "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." ' [Citation.] 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
16
totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud,
or mistake.' " ' " (AP-Colton LLC v. Ohaeri (2015) 240 Cal.App.4th 500, 507.)
Judicial estoppel " 'obviously contemplates something other than the permissible
practice . . . of simultaneously advancing in the same action inconsistent claims or
defenses which can then, under appropriate judicial control, be evaluated as such by the
same tribunal, thus allowing an internally consistent final decision to be reached.'
[Citations.] Consequently, judicial estoppel is especially appropriate where a party has
taken inconsistent positions in separate proceedings." (Jackson v. County of Los Angeles
(1997) 60 Cal.App.4th 171, 181.)
All of the requirements of judicial estoppel are satisfied here. In the trial court,
Reile first claimed in pleadings that Live Stores owed him the entire amount of the debt
under the settlement agreement. But in his later ex parte application, Reile sought only
eleven months of payments plus interest. He was successful in advocating this latter
position because the court granted his application and judgment was entered accordingly.
Reile's renewed claim for the remaining months' payments from Live Stores is untenable.
On appeal, Reile asserts without more that the last requirement of judicial estoppel was
not met here, claiming "it was a mistake to allege the [promissory note] permitted
acceleration for nonpayment of an installment when it did not," and explaining that
"[f]ortunately however [he] had attached the [promissory note] to the complaint so a
careful reading would show the error." But we are not bound to accept this assertion,
which we find unpersuasive and self-serving in light of the whole record.
17
Reile also claims Live Stores was not prejudiced by his inaccurate allegation. But
that claim is of no moment because " '[t]he doctrine of judicial estoppel is designed to
protect the integrity of the legal system as a whole, and does not require a showing of
detrimental reliance by a party.' " (AP-Colton v. Ohaeri, supra, 240 Cal.App.4th at
p. 508.)
Because we affirm the court's ruling on the above stated grounds, we need not
address Reile's contention that Live Stores did not default by entering into a licensing
agreement with a third party.
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DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
O'ROURKE, J.
WE CONCUR:
McINTYRE, Acting P. J.
AARON, J.
19