Vaca v. Howard CA2/4 ( 2021 )

Filed 5/17/21 Vaca v. Howard CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ANA VACA et al., B286663
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC479045)
v.
NEIL HOWARD et al.
Defendants and Respondents.
APPEAL from judgments of the Superior Court of Los
Angeles County, Randolph M. Hammock, Judge. Affirmed.
Law Offices of Nick A. Alden, Nick A. Alden, for Plaintiffs
and Appellants.
Gusdorff Law, Janet Gusdorff for Defendant and
Respondent Neil Howard.
Nelson & Fulton, Henry Patrick Nelson and Elise H. Hur
for Defendant and Respondent Tiffany Garrard.
1
INTRODUCTION
Appellant Ana Vaca sued her former attorney, Neil M.
Howard, and his alleged agents, employees, and co-conspirators,
Sheldon Lewenfus and Tiffany Garrard, for damages caused by
an allegedly wrongful sheriff’s sale of her home. Ana1 contends
the sheriff’s sale of her residence was invalid. She further
contends the court erred by: (1) sustaining Howard’s demurrer to
her causes of action for conspiracy to wrongfully sell real property
and wrongful eviction contained in her third amended complaint;
(2) sustaining Howard’s demurrer to her causes of action for
wrongful sale of property, conversion, and breach of fiduciary
duties contained in her fourth amended complaint; (3) granting
Howard’s motion for summary judgment on her remaining causes
of action; and (4) sustaining Garrard’s demurrer to her fourth
amended complaint without leave to amend. For the reasons
discussed below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This is our third appellate opinion in this lengthy litigation
arising from a judgment against Ana and a sheriff’s sale of Ana’s
residence to satisfy the judgment.2 The earlier opinions are law of
1 We refer to Ana Vaca and her brother, Enrique Vaca, who
have the same last name, and to their sister Laura Garcia, by
their first names to avoid confusion. No disrespect is intended. As
in a previous opinion in this litigation, all references to Ana are
intended to include her husband, co-plaintiff and co-appellant
German Valera, except where the context demonstrates that the
references are to Ana alone. (Vaca v. Howard (Oct. 29, 2015,
B256065) [nonpub. opn.]).
2 As discussed below, this is Ana’s second appeal in this case,
and Ana also filed an appeal in Los Angeles County Superior
2
the case. Therefore, as best we can, we will limit our discussion of
legal issues to topics relevant to this appeal and not replow the
entire litigation. The trial court rulings that are the subject of
this appeal are discussed under heading below, but considerable
background information is necessary to place those rulings in
context.
We begin by quoting at length from an overview of the
litigation contained in one of our earlier opinions, to introduce
the parties and provide necessary background. (Vaca v. Lewenfus
(Feb. 5, 2015, B249885) [nonpub. opn.].)
“As will be discussed, Howard played a significant role in
several prior lawsuits in which appellant (Ana) was a party.
Howard represented Ana and her brother Enrique as plaintiffs in
a prior wrongful death action, in which he negotiated a
settlement in their favor ([Super. Ct. L.A. County] No.
GC040014). After Ana invested a large portion of the settlement
proceeds in her family residence, Howard sued Ana on behalf of
Enrique, who obtained a judgment against Ana for
misappropriating the wrongful death settlement proceeds
([Super. Ct. L.A. County] No. GC041483).” (Vaca v. Lewenfus
(Feb. 5, 2015, B249885) [nonpub. opn.] [fn. omitted].) [We will
refer to Case No. GC041483 as “the misappropriation action.”]
Ana then sued Enrique, Laura, Howard, and Howard’s associates
for fraud ([Super. Ct. L.A. County] No. BC436404).
On February 15, 2012, “Ana filed [this case] ([Super. Ct.
L.A. County] No. BC479045) against Howard and Lewenfus after
her family residence was sold in a sheriff’s sale. The sale was
conducted pursuant to an order for sale that Howard had
obtained on behalf of Enrique as Ana’s judgment creditor in the
misappropriation action (No. GC041483). Ana contends that in
advance of the sale, Howard arranged to have Lewenfus purchase
her home for the grossly inadequate price of $10,000. Howard
Court Case No. BC436404, resulting in another opinion. (Vaca v.
Howard (Oct. 29, 2015, B256065) [nonpub. opn.]).
3
allegedly conspired with Lewenfus to acquire Ana’s property for a
fraction of its fair market value by suppressing all other bids,
and, in particular, by failing to make a credit bid on behalf of
Enrique, whose judgment against Ana for $158,565.89 would
have easily trumped the $10,000 bid by Lewenfus. Ana claims the
fraudulent sale to Lewenfus resulted in the loss of her family
residence for a fraction of its fair market value, and left her
judgment to Enrique unpaid.” (Vaca v. Lewenfus (February 5,
2015, B249885) [nonpub. opn.].)
1. Prior Wrongful Death Action
“In 2007, Howard filed an action on behalf of Ana and
Enrique against the Pasadena Hospital Association for the
wrongful death of their mother, who had 12 children. (Vaca v.
Pasadena Hospital Association (Super. Ct. L.A. County No.
GC040014 (wrongful death action).) Ana and Enrique are
California residents, as is their sister Laura; their other nine
siblings live in Mexico. After Howard settled the wrongful death
action for $1.275 million, he issued two checks to Ana and
instructed her to settle with her 11 siblings. One of the checks
was for $718,931.67 and the other for $167,291.85. The aggregate
amount was $886,223.52.
“Ana distributed $140,000.00 of the wrongful death
settlement proceeds to Enrique, and $50,000 to Laura. Ana
invested most if not all of the remaining settlement proceeds in
her family residence, which she allegedly purchased with cash.”
(Vaca v. Lewenfus (Feb. 5, 2015, B249885) [nonpub. opn.]).
2. Prior Misappropriation Action
“A dispute arose between Ana and Enrique with respect to
the distribution of the wrongful death settlement proceeds.
Howard represented Enrique in an underlying lawsuit against
4
Ana for misappropriation of those proceeds. (Vaca v. Vaca (Super.
Ct. L.A. County No. GC041483) (misappropriation action).)
“Howard originally filed the misappropriation action on
behalf of Ana’s 11 siblings. The nine siblings in Mexico dismissed
their claims against Ana before trial. Laura, who denied
retaining Howard as her attorney, represented herself at trial.
“Enrique, represented by Howard, sought to apportion the
$718,931.67 wrongful death settlement check that Ana had
received from Howard with instructions to settle with her
siblings. Subject to offsets for Ana’s prior payments of
$140,000.00 to Enrique and $50,000.00 to Laura, Enrique and
Laura each claimed roughly one-third of the settlement check.
Howard represented to the court that Enrique’s share of the
settlement check was $237,643.89, and Laura’s was $242,543.89.
“Ana, acting without an attorney, was precluded by a
discovery sanction from presenting any testimony at trial.
(According to her appellate counsel, Ana does not read or write
Spanish, her native language, and does not understand English.)
“The trial court apportioned $237,643.89 of the settlement
check to Enrique, and after an offset of $140,000.00, granted a
net award of $97,643.89. In addition, Enrique received $9,309.00
in prejudgment interest, $50,000.00 in punitive damages, and
$1,613.00 in costs, for a total judgment of $158,565.89.
“The trial court apportioned $242,543.89 of the settlement
check to Laura, and after an offset of $50,000.00, granted a net
award of $192,543.89. In addition, Laura received $18,357.00 in
prejudgment interest, $25,000 in punitive damages, and $530.00
in costs, for a total judgment of $236,530.89.” (Vaca v. Lewenfus
(Feb. 5, 2015, B249885) [nonpub. opn.]).
3. Prior Fraud Action
On April 26, 2010, “Ana sued Enrique, Laura, Howard, and
Howard’s associates, Aldo Flores and Oscar Valencia, for fraud.
5
(Vaca v. Howard (Super. Ct. L.A. County No. BC436404 (prior
fraud action).)” (Vaca v. Lewenfus (Feb. 5, 2015, B249885)
[nonpub. opn.].) Specifically, Ana alleged Howard “breached his
fiduciary duties and committed professional negligence. Six
months after the complaint was filed, Howard filed a petition to
compel arbitration pursuant to Code of Civil Procedure section
1281.2. The trial court granted the petition, and we denied
[Ana’s] petition for a writ of mandate. [Citation.] [Ana] did not
participate in the arbitration proceedings, which culminated in
an order granting Howard’s motion for summary judgment.
Approximately two years after the arbitrator issued his order,
Howard filed a petition to confirm the award pursuant to section
1285. [Ana] timely appealed from the court’s grant of that
petition[3],” and a different panel of this court affirmed. (Vaca v.
Howard (Oct. 29, 2015, B256065) [nonpub. opn.] [fn. omitted].)
4. Execution Sale of Ana’s Residence
“In order to enforce Enrique’s judgment against Ana in the
misappropriation action (No. GC041483), Howard sought an
order for sale of Ana’s residence. In an accompanying declaration,
Howard stated that Ana’s residence had a fair market value of
$400,000.00. In his April 2, 2010 declaration in support of an
order to show cause concerning sale of the residence (OSC),
Howard stated, based on information provided by Enrique, that
the residence was occupied by Ana, her husband, and her two
sons, and that the statutory homestead exemption available to
Ana was $100,000. ([Code Civ. Proc.,] § 704.760, subd. (b).)
“At the OSC hearing, the trial court (Judge Mary Thornton
House) relied on Howard’s April 2, 2010 declaration to determine
that the statutory homestead exemption available to Ana was
$100,000.00 ([Code Civ. Proc.,] § 704.760, subd. (a)(2)), and the
3 Judge Deirdre Hill was the trial judge at that time.
6
fair market value of the home was $400,000.00. The court issued
an order on June 18, 2010, authorizing a sheriff’s sale of Ana’s
property subject to three requirements. First, any bid must
exceed $100,000.00 (the amount of the statutory homestead
exemption available to Ana), plus the aggregate amount of all
liens and encumbrances on the property. Second, any bid must
equal or exceed 90 percent of the appraised fair market value of
$400,000.00, thus establishing a minimum bid requirement of
$360,000.00. Third, the sale proceeds were to be applied first to
the satisfaction of Enrique’s judgment, plus costs and interest;
then to the satisfaction of Laura’s judgment, plus costs and
interest; then to the bond surety company in the amount of
$100,000.00; then to Ana.” (Vaca v. Lewenfus (February 5, 2015,
B249885) [nonpub. opn.] [fns. omitted].)
The June 18, 2010 order was superseded by a September 9,
2010 order “entered by the trial court in the underlying
misappropriation action (No. GC041483). The new order for sale
eliminated the $100,000.00 statutory homestead exemption and
90 percent of the appraised fair market value minimum bid
requirement for the June 18, 2010 order for sale.” (Vaca v.
Lewenfus (February 5, 2015, B249885) [nonpub. opn.] [fn.
omitted.].)4
4 We noted in our previous opinion that Howard submitted a
declaration on September 5, 2010 in the misappropriation action
stating “that because there was no recorded homestead
exemption, Ana had the burden of showing that the residence
qualified as a homestead. . . . [¶] Howard’s statement—that the
original order of sale ‘appropriately provided that the subject
property is not subject to any homestead exemption’ (italics
added)—misrepresented the fact that the court had imposed a
statutory exemption of $100,000.00, based on Howard’s April 2,
2010 declaration. In his April 2 declaration, which was filed in
compliance with the requirements of [Code of Civil Procedure]
section 704.760, Howard stated that the dwelling was occupied by
Ana, her husband, and her two sons, and that the available
7
On November 3, 2010, “Lewenfus purchased Ana’s
residence at a sheriff’s sale. His successful bid of $10,000 was the
only bid received at the sale.” (Vaca v. Lewenfus (Feb. 5, 2015,
B249885) [nonpub. opn.].)
5. Other Prior Actions and Ana’s Bankruptcy
Petition
“After the property was purchased by Lewenfus for
$10,000, Ana refused to vacate the home and filed a bankruptcy
petition [on November 24, 2010]. Lewenfus initiated an unlawful
detainer action and obtained a judgment against Ana in
December 2010 (the UD Action). The bankruptcy court granted
Lewenfus’s motion for relief from the automatic stay in February
2011. In February or March 2011, Ana and Lewenfus signed a
settlement agreement, but the validity of that agreement is
disputed.
“In February 2011, Ana’s new attorney, Nick A. Alden,
recorded a lis pendens against the disputed residence,
erroneously stating that Lewenfus was a defendant in the prior
fraud action that Ana had filed against Howard (No. BC436404).
Because he was not a party to that action, Lewenfus sought leave
to intervene in order to expunge the lis pendens. The lis pendens
was expunged in March 2012.” (Vaca v. Lewenfus (Feb. 5, 2015,
B249885) [nonpub. opn.].)
On March 24, 2011, Vaca was granted a discharge in her
bankruptcy case.
“Ana also filed a lawsuit against Howard and Lewenfus in
June 2011 (No. SC112953). That lawsuit was dismissed in
November or December 2011 for failure to prosecute.” (Vaca v.
Lewenfus (Feb. 5, 2015, B249885) [nonpub. opn.].)
homestead exemption was $100,000.00.” (Vaca v. Lewenfus (Feb.
5, 2015, B249885) [nonpub. opn.].)
8
6. Present Action
Ana filed the present action against Howard and Lewenfus
in February 2012 (No. BC479045).5 On March 1, 2012, Ana filed a
first amended complaint (FAC). Lewenfus moved to strike the
FAC under the anti-SLAPP statute, arguing the causes of action
arose from Howard’s protected petitioning activities, and were
subject to the litigation privilege. The trial court (Judge
Weintraub) granted the special motion to strike the complaint
against Lewenfus, finding the claims arose from Howard’s
protected speech or petitioning activities, and Ana did not
demonstrate a probability of success on the merits of her claims
because she produced no evidence of wrongful or dishonest
conduct on the part of Lewenfus. (Vaca v. Lewenfus (Feb. 5, 2015,
B249885) [nonpub. opn.].)
On February 27, 2013, Ana filed a second amended
complaint (SAC) against Howard, Lewenfus, and the Los Angeles
County Sheriff’s Department (LASD). The court sustained
LASD’s demurrer to the SAC, and dismissed LASD from the
action.
In 2013, Ana filed a third amended complaint (TAC)
alleging causes of action for: (1) wrongful sale of real property in
violation of statutes (first cause of action); (2) conspiracy to
defraud (second cause of action); (3) conspiracy to wrongfully sell
real property in violation of statutes (third cause of action); and
(4) wrongful eviction (fourth cause of action). In response,
Howard filed a demurrer contending the TAC failed to allege
sufficient facts to constitute a cause of action for each cause of
action alleged. The trial court overruled Howard’s demurrer to
the first cause of action and sustained the demurrer without
5 This case was initially assigned to Judge Debre K.
Weintraub. The case was reassigned to Judge Randolph M.
Hammock, effective January 1, 2017.
9
leave to amend as to the second, third, and fourth causes of
action.
On February 5, 2015, a different panel of this court
reversed the trial court’s grant of Lewenfus’s special motion to
strike. (Vaca v. Lewenfus (Feb. 5, 2015, B249885) [nonpub. opn.].)
It held “the gravamen of the complaint attacks the fraudulent
suppression of bids, particularly by the judgment creditor, in
order to facilitate the pre-arranged sale to Lewenfus for an
inadequate price.” (Ibid.) It therefore concluded “that the conduct
at issue, the fraudulent suppression of bids at a sheriff’s sale,
does not arise from protected petitioning activities.” (Ibid.)
After the reversal of the trial court’s grant of Lewenfus’s
special motion to strike, the trial court, on its own motion,
reconsidered its ruling on Howard’s demurrer to the TAC and
reinstated the second cause of action for conspiracy to defraud
against Howard.
In March 2016, Ana substituted in Garrard, an employee of
the LASD and the person “in charge on behalf of the LASD [to]
conduct the sale of [Ana’s residence]” as a defendant.
On October 6, 2016, Ana filed a fourth amended complaint
(4AC) alleging causes of action for: (1) misappropriation of
plaintiffs’ property (first cause of action); (2) conspiracy to
defraud (second cause of action); (3) wrongful sale of the property
(third cause of action); (4) conversion (fourth cause of action); and
(5) breach of fiduciary duties (fifth cause of action). In response,
Howard filed a demurrer and a motion for summary judgment.
The trial court (Judge Hammock) overruled Howard’s
demurrer to the first and second causes of action. It held the first
cause of action for misappropriation was not barred by res
judicata because the prior fraud action “did not contain any
allegations pertaining to an alleged conspiracy to sell the
property for an inadequate price.” It further rejected Howard’s
argument that the second cause of action for conspiracy to
defraud was not pled with the requisite specificity for pleading
10
fraud-based causes of action. The court sustained Howard’s
demurrer without leave to amend, however, to the third, fourth,
and fifth causes of action. Regarding the third cause of action, the
court held “[b]ecause the third cause of action in the 4AC is based
on the alleged violation of the same statutes as were pled in the
third cause of action in the [T]AC, Plaintiffs’ re-assertion of the
third cause of action against Defendant Howard in the 4AC is in
violation of the Court’s [order on Howard’s demurrer to the
TAC].” It further held the fourth cause of action for conversion
applies to personal property (not real property) and the fifth
cause of action was barred by the statute of limitations.
Because only the first and second causes of action remained
after the trial court’s ruling on Howard’s demurrer to the 4AC,
the trial court held Howard’s motion for summary judgment as it
pertained to the third, fourth, and fifth causes of action was moot,
and proceeded to address the motion with respect to the first and
second causes of action only. The trial court granted Howard’s
motion on the ground that the arbitrator’s award in the prior
fraud action operated as “collateral estoppel as to the issue of
judicial estoppel based on [Ana’s] failure to list or identify the
claims she had against Howard in her Chapter 7 bankruptcy
petition, schedules and statement of affairs.”
The trial court entered judgment in favor of Howard on
November 2, 2017.
Garrard separately filed a demurrer to the 4AC on the
grounds that Ana’s claims were barred for failure to timely
present a mandatory claim pursuant to Government Code section
950.2 and 945.4, immunity for executing a writ and relying on
information provided by the judgment creditor, and the litigation
privilege. The trial court sustained Garrard’s demurrer without
leave to amend on the ground that Ana’s causes of action were
barred for failure to comply with the government claims
requirements, and entered judgment in favor of Garrard.
11
Ana appeals from the judgments entered in favor of
Howard and Garrard.
DISCUSSION
1. Validity of the Sheriff’s Sale
Ana contends the sheriff’s sale of her residence on
November 3, 2010 was invalid. She argues the September 9, 2010
order for sale of her residence issued in Case No. GC041483
violated the automatic stay imposed by Ana’s appeal, filed on
August 9, 2010, of the June 18, 2010 order issued in that case.
(See Code Civ. Proc., § 916, subd. (a) [“the perfecting of an appeal
stays proceedings in the trial court upon the judgment or order
appealed from or upon the matters embraced therein or affected
thereby, including enforcement of the judgment or order . . . .”]).
We lack jurisdiction to review the validity of the September
9, 2010 order issued in Case No. GC041483. (See Soldate v.
Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069,
1073 [“‘Our jurisdiction on appeal is limited in scope to the notice
of appeal and the judgment or order appealed from.’ [Citation.]”).
Here, Ana appealed from the judgments of dismissal in favor of
Howard and Garrard in Case No. BC479045. We may review any
intermediate ruling, proceeding, order or decision which involves
the merits or necessarily affects the judgments appealed from in
this case (Code Civ. Proc., § 906), not orders issued in a separate
action. Ana chose to abandon her appeal in Case No. GC0141483
(see Case No. B226512). We lack jurisdiction to review the
validity of an order issued in a case underlying Ana’s abandoned
appeal.
12
2. Howard’s Motion for Summary Judgment
A. Standard of Review
“A party is entitled to summary judgment only if there is no
triable issue of material fact and the party is entitled to judgment
as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment must show that one or
more elements of the plaintiff’s cause of action cannot be
established or that there is a complete defense. (Id., subd. (p)(2).)
If the defendant meets this burden, the burden shifts to the
plaintiff to present evidence creating a triable issue of material
fact. (Ibid.) A triable issue of fact exists if the evidence would
allow a reasonable trier of fact to find the fact in favor of the
party opposing summary judgment. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850 [citation.])
“We review the trial court’s ruling on a summary judgment
motion de novo, liberally construe the evidence in favor of the
party opposing the motion, and resolve all doubts concerning the
evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460 [citation.]) We must affirm
a summary judgment if it is correct on any of the grounds
asserted in the trial court, regardless of the trial court’s stated
reasons. [Citation.]” (Grebing v. 24 Hour Fitness USA, Inc. (2015)
234 Cal.App.4th 631, 636-637.)
B. Howard is Entitled to Summary Judgment
Howard moved for summary judgment, asserting, among
other things, that Ana was collaterally estopped from asserting
her claims against him in the 4AC. In the prior fraud action, the
arbitrator granted Howard’s motion for summary judgment based
on the doctrine of judicial estoppel because Ana failed to identify
her claims against Howard in her bankruptcy petition. Howard
13
therefore argues Ana’s claims in this action for misappropriation
and conspiracy to defraud are also barred by the doctrine of
judicial estoppel because Ana similarly failed to list those claims
in her bankruptcy petition. We agree.
“The doctrine of collateral estoppel precludes relitigation of
an issue previously adjudicated if: (1) the issue necessarily
decided in the previous suit is identical to the issue sought to be
relitigated; (2) there was a final judgment on the merits of the
previous suit; and (3) the party against whom the plea is asserted
was a party, or in privity with a party, to the previous suit.”
(Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d
903, 910.)6
In support of his motion for summary judgment, Howard
submitted Ana’s complaint in the prior fraud action, filed April
26, 2010. In that action, Ana alleged, among other things, that
Howard breached his fiduciary duties by filing the
misappropriation action against her, and “dragg[ing[ [her]
through debtor examinations and fil[ing] a motion to sell her
6 The trial court and the parties use the terms “res judicata”
and “collateral estoppel” without clearly differentiating the
concepts. Our Supreme Court in DKN Holdings LLC v. Faerber
(2015) 61 Cal.4th 813, 823-825 explained the terminological
confusion arising from the imprecise use of the umbrella term
“res judicata,” and explained the differences between claim
preclusion and issue preclusion/collateral estoppel: “We have
frequently used ‘res judicata’ as an umbrella term encompassing
both claim preclusion and issue preclusion, which we described as
two separate ‘aspects’ of an overarching doctrine. [Citations.]
Claim preclusion, the ‘“‘primary aspect’”’ of res judicata, acts to
bar claims that were, or should have been, advanced in a
previous suit involving the same parties. [Citation.] Issue
preclusion, the ‘“‘secondary aspect’”’ historically called collateral
estoppel, describes the bar on relitigating issues that were argued
and decided in the first suit. [Citation.]” (Id. at pp. 823-824.)
Here, “collateral estoppel” is the more accurate term to use on
these facts and we use it accordingly.
14
home to satisfy the judgments.” As a result of Howard’s alleged
breach of fiduciary duties, Ana “suffered damages in the sum of
about $450,000.00, and interest[ ], attorneys’ fees, and risk to
have her family residence sold to satisfy the void judgment
obtained in the [misappropriation action].” Howard also
submitted the arbitrator’s January 25, 2013 order granting his
motion for summary judgment in the prior fraud action: “The
arbitrator find[s] that there was no triable issue of any material
fact an[d] that the moving party is entitled to judgment as a
matter of law based upon the legal principles of judicial
estoppel[7] given that [t]he plaintiff filed this instant lawsuit on
April 26, 2010, and seven months later filed a petition for relief
under Chapter 7 of the Bankruptcy Code and failed to schedule
any claim which she now seeks to assert against the
defendant/moving party. On March 24, 2011, plaintiff was
granted a discharge under section 727 of the Bankruptcy Code.
Therefore, . . . plaintiff is barred from pursuing any claims
against the moving defendant.[8]” Thus, as the trial court in this
action stated, “the arbitrator’s decision was based on the fact that
after [Ana] filed [the prior fraud action] on April 26, 2010, [ ] on
November 24, 2010 [she] filed a petition for relief under Chapter
7 of the Bankruptcy Code and failed to schedule any claim she
7 “The elements of judicial estoppel are ‘(1) the same party
has taken two positions; (2) the two 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.’ [Citations.]” (Owens v.
County of Los Angeles (2013) 220 Cal.App.4th 107, 121.)
8 Failure to list potential legal claims in bankruptcy
schedules may bar litigation of such claims based on the doctrine
of judicial estoppel. (See Hamilton v. Greenwich Investors XXVI,
LLC (2011) 195 Cal.App.4th 1602, 1614.)
15
then sought to assert against Howard. It was not until March 24,
2011 that the bankruptcy court granted [Ana] a discharge.” The
trial court confirmed the arbitration award in the prior fraud
action, and a different panel of this court affirmed the judgment
of the trial court. (Vaca v. Howard (Oct. 29, 2015, B256065)
[nonpub. opn.].)
In the present action, Ana alleged in her 4AC that Howard
“entered into a conspiracy with Defendants [Lewenfus] and
[Garrard] to fraudulently suppress [ ] bids in order to facilitate a
pre-arranged sale to [Lewenfus] for an inadequate price.” But
Ana knew—prior to the discharge of her bankruptcy case—that
her house sold at a sheriff’s sale for $10,000 to Lewenfus.
Lewenfus filed the UD Action against Ana to obtain possession of
the subject property on November 24, 2010—the same day Ana
filed her bankruptcy petition.9 On December 8, 2010, the court
entered a default judgment against Ana in the UD Action, with
restitution of the premises ordered. On February 24, 2011, the
writ of possession was returned. Thus, as the trial court correctly
stated, “as of the date [Ana] was evicted, she would have known
that the property was sold at a sheriff’s sale by attorney
Howard—and thus she had a claim against him for dispossessing
her of the property. The fact that [Ana] may have subsequently
developed the theory that Howard was working in concert with
Lewenfus and Garrard does not excuse her failure to list the
known claim against Howard. Yet, as the arbitrator found, [Ana]
did not schedule any claim against Defendant Howard.”
This demonstrates the underlying facts giving rise to Ana’s
claims against Howard for misappropriation of her property and
conspiracy to defraud were known to her before the bankruptcy
court granted Ana a discharge. Thus, collateral estoppel
precludes Ana from litigating whether those claims are barred
based on the doctrine of judicial estoppel because there has
9 On its own motion, the trial court took judicial notice of the
records in the UD Action.
16
already been a finding that Ana cannot assert claims against
Howard that were known pre-discharge and not listed in Ana’s
bankruptcy schedules. (See, e.g., Kelly v. Vons Companies, Inc.
(1998) 67 Cal.App.4th 1329, 1336-1337 [noting “cases have
concluded that findings made during arbitrations may be given
collateral estoppel effect in a subsequent lawsuit. [Citations.]”].)10
Moreover, although German Valera was not a party in the
prior fraud action, he was in privity with Ana for purposes of
collateral estoppel. “Privity refers 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 applying
collateral estoppel. [Citation.] Under California law, spouses are
in privity with each other where the cause of action in the prior
litigation was ‘community in nature’ and the ‘proceeds of any
judgment that might have been recovered . . . would have
belonged to both husband and wife, as community property.’
[Citations.].” (Mueller v. J.C. Penney Co. (1985) 173 Cal.App.3d
713, 723.) Here, Exhibit A to the 4AC is a grant deed reflecting
the subject property was held by Ana and Valera as husband and
wife as joint tenants. Thus, any recovery by Ana in the prior
lawsuit would have been presumptively community property.
(See, e.g., In re Brace (2020) 9 Cal.5th 903, 931 [“If the joint
10 Ana makes an argument here that we previously rejected
in connection with her appeal of the order confirming the
arbitration award. In that appeal, she argued the arbitration
award no longer has a legal basis because she “subsequently
reopened her bankruptcy proceedings to correct the omission of
her claims against Howard.” (Vaca v. Howard (Oct. 29, 2015,
B256065) [nonpub. opn.].) Similarly, here, Ana again argues she
“inadvertently omitted” her claims against Howard and the
bankruptcy court granted her motion to reopen the case; thus,
she argues, judicial estoppel should not have applied. As stated in
our opinion confirming the arbitration award, however, “it would
be improper to review the substantive merits of the arbitrator’s
award” because arbitrators’ decisions cannot be reviewed for legal
or factual errors. (Ibid.)
17
tenants are married, a creditor or third party purchaser will be
on notice that the property is presumptively community and that
an alienation or encumbrance of that property must be joined by
both parties.”]; see also Fam. Code, § 2581 [“For the purpose of
division of property on dissolution of marriage or legal separation
of the parties, property acquired by the parties during marriage
in joint form, including property held in tenancy in common, joint
tenancy, or tenancy by the entirety, or as community property, is
presumed to be community property.”].) Accordingly, Howard met
his burden to establish a complete defense—collateral estoppel—
to the remaining causes of action in the 4AC.
The burden therefore shifted to Ana to present evidence
creating a triable issue of material fact. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) She failed to do so. Ana
did not present evidence disputing the finality of the prior fraud
action nor that the issue decided in the prior fraud action was
different from the issue sought to be relitigated. Instead, she
argued “injustice would result if the litigation in this case is
foreclosed.” (See Consumers Lobby Against Monopolies v. Public
Utilities Com. (1979) 25 Cal.3d 891, 902 [When the issue decided
in the prior action is “a question of law rather than of fact,”
collateral estoppel will not be applied “if injustice would result or
if the public interest requires that relitigation not be foreclosed.
[Citations.]”].) Here, Howard relies on the factual findings of the
arbitrator (i.e., Ana failed to list her claims against Howard in
her bankruptcy petition despite knowledge of such claims when
she filed her petition). In any event, Ana failed to carry her
burden to demonstrate injustice would occur. As the trial court
explained, “there has been [an] inadequate showing by [Ana] to
demonstrate that such a ‘gross injustice’ would occur. Just
because things may appear to be suspicious in nature, [does not]
mean that they have actually occurred, as alleged. [¶] . . . [Ana]
rel[ies] mainly upon suspicion and speculation – not
preponderating evidence.” A party “‘cannot avoid summary
18
judgment by asserting facts based on mere speculation and
conjecture, but instead must produce admissible evidence raising
a triable issue of fact.’ . . . [Citation.]” (Dollinger DeAnza
Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132,
1144-1145.) We conclude the trial court properly granted
summary judgment in favor of Howard.
3. Howard’s Demurrers to the Third and Fourth
Amended Complaints
Our conclusion that summary judgment was properly
granted in favor of Howard is dispositive with respect to Howard.
All of Ana’s claims against Howard in this action were known
prior to the discharge of Ana’s bankruptcy because all claims
were premised on the allegation that Howard conspired with
Lewenfus and Garrard to suppress bids at the sheriff’s sale of
Ana’s residence. Thus, even if those claims had survived
demurrer, they would not have survived summary judgment. Ana
did not identify in the trial court any way to amend her complaint
to add a claim that would have survived summary judgment, i.e.,
a claim against Howard that was not known prior to the
discharge of her bankruptcy. Accordingly, we need not address
whether the court erred in partially sustaining Howard’s
demurrers to the causes of action for conspiracy to wrongfully sell
real property in violation of statutes and wrongful eviction in the
TAC, and causes of action for wrongful sale of the property,
conversion, and breach of fiduciary duties in the 4AC. (See, e.g.
Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143
Cal.App.4th 333, 347 [“[A]n appellant has the burden to show not
only that the trial court erred but also that the error was
prejudicial. [Citations.]”].)
19
4. Garrard’s Demurrer to the Fourth Amended
Complaint
Ana contends the trial court erred in holding her claims
against Garrard in the 4AC were barred by her failure to comply
with the Government Claims Act. “[W]e apply the de novo
standard of review in an appeal following the sustaining of a
demurrer . . . .[Citation.]” (California Logistics, Inc. v. State of
California (2008) 161 Cal.App.4th 242, 247.)
The Government Claims Act provides that “a claim against
a public employee or former public employee for injuries resulting
from acts or omissions in the course of his or her employment
must be presented if a claim against the employing entity for the
same injury must be presented. (Gov. Code, § 950.2). This is so
because a public entity is required to pay a judgment against its
employee ‘for an injury arising out of an act or omission occurring
within the scope of his or her employment as an employee of the
public entity.’ (Gov. Code, § 825, subd. (a).).” (People ex rel. Harris
v. Rizzo (2013) 214 Cal.App.4th 921, 939.)
“[Government Code] [s]ection 915(a) provides, ‘A
claim . . . shall be presented to a local public entity by either of
the following means: [¶] (1) Delivering it to the clerk, secretary or
auditor thereof. [¶] (2) Mailing it to the clerk, secretary, auditor,
or to the governing body at its principal office.’ Section
915(e)(1) clearly and narrowly sets forth how actual receipt may
meet the presentation requirement: ‘A claim . . . shall be deemed
to have been presented in compliance with this section even
though it is not delivered or mailed as provided in this section if,
within the time prescribed for presentation thereof, any of the
following apply: [¶] (1) It is actually received by the clerk,
secretary, auditor or board of the local public entity.’ (Italics
added.)” (DiCampli-Mintz v. County of Santa Clara (2012) 55
Cal.4th 983, 990 (DiCampli-Mintz).)
20
“Even if the public entity has actual knowledge of facts that
might support a claim, the claims statutes still must be satisfied.
[Citation.]” (DiCampli-Mintz, supra, 55 Cal.4th at p. 990.) “A goal
of the Government Claims Act is to eliminate confusion and
uncertainty resulting from different claims procedures.
[Citation.]” (Ibid.) “‘[T]he purpose of the claims statutes is not to
prevent surprise, but “to provide the public entity sufficient
information to enable it to adequately investigate claims and to
settle them, if appropriate, without the expense of
litigation. [Citations.] It is well-settled that claims statutes must
be satisfied even in face of the public entity’s actual knowledge of
the circumstances surrounding the claim.” [Citation.] The claims
statutes also “enable the public entity to engage in fiscal
planning for potential liabilities and to avoid similar liabilities in
the future.” [Citations.]’” (Id. at pp. 990-991, quoting City of
Stockton v. Superior Court (2007) 42 Cal.4th 730, 738 (City of
Stockton).) “The claimant bears the burden of ensuring that the
claim is presented to the appropriate public entity. [Citation.]”
(DiCampli-Mintz, supra, 55 Cal.4th 983 at p. 991, fn. omitted.)
“‘“[N]o suit for money or damages may be brought against
a public entity on a cause of action for which a claim is required
to be presented . . . until a written claim therefor has been
presented to the public entity and has been acted upon . . . or has
been deemed to have been rejected . . . .” ([Gov. Code,] § 945.4.)
“Thus, under these statutes, failure to timely present a claim for
money or damages to a public entity bars a plaintiff from filing a
lawsuit against that entity.” [Citation.]’” (DiCampli-Mintz, supra,
55 Cal.4th at p. 990, quoting City of Stockton, supra, 42 Cal.4th
at pp. 737-738.)
In paragraphs 38 and 39 of her 4AC, Ana alleges her
counsel sent two letters to “Sheriff Leroy D. Baca Los Angeles
Sheriff’s Department,” presenting her claims. She does not allege,
however, that her counsel either mailed her claim to the
statutorily-designated officials (Gov. Code, § 915, subd. (a)), or
21
that those officials received her claim. Instead, Ana argues: (1)
the Sheriff’s Department had a duty to respond to the letters her
counsel sent to the head of the Sheriff’s Department and/or
forward the letters to the appropriate officials (here, the Los
Angeles County Board of Supervisors); (2) she substantially
complied with the relevant statutes; and (3) Ana’s claims were
not subject to the claim presentation requirement because she
sued Garrard not only as an employee of the LASD, but also in
her individual capacity. Applying the principles discussed above,
we disagree.
First, Ana cites no authority for the proposition that the
Sheriff’s Department had an obligation to forward the letters to
the officials designated in the Government Claims Act or to notify
her counsel that the letters were misdirected. We decline to
impose such an obligation. It is contrary to both the plain
language of Government Code section 915, subdivision (a) and
our Supreme Court’s strict construction of the procedures set
forth in the Government Claims Act. (See DiCampli-Mintz,
supra, 55 Cal.4th at p. 991, fn. omitted [“The claimant bears the
burden of ensuring that the claim is presented to the appropriate
public entity. [Citation.]”].)
Second, Ana does not allege in the 4AC that the “clerk,
secretary, auditor, or board” ever actually received the claim as
required by Government Code section 915, subdivision (e)(1). In
her opening brief, she contends “Plaintiffs must assume that
Sheriff Baca fulfilled his obligation, as a public servant, and
forwarded the letters to the Board of Supervisor[s].” We will
neither assume that the Sheriff had such an obligation, nor that
he fulfilled this purported obligation. Thus, as in DiCampli-
Mintz, Ana’s claims are barred because “neither section 915(a)’s
specific requirements for compliance, nor section 915(e)(1)’s
provision deeming actual receipt to constitute compliance, were
satisfied.” (DiCampli-Mintz, supra, 55 Cal.4th at pp. 991-992.)
22
Finally, we reject Ana’s alternative contention that
compliance with the Government Claims Act was not necessary
because she sued Garrard in her individual capacity in addition
to her official capacity. Notwithstanding Ana’s characterization of
her claims, it is clear she sued Garrard “for injury resulting from
an act or omission in the scope of [her] employment.” (Gov. Code,
§ 950.2.) “For the purpose of the claim statute, a public employee
is acting in the course and scope of his [or her] employment ‘when
he [or she] is engaged in work he [or she] was employed to
perform or when the act is an incident to his [or her] duty and
was performed for the benefit of his [of her] employer and not to
serve his [or her] own purposes or conveniences.’ [Citations.] The
phrase ‘scope of employment’ has been equated with the express
or implied power of the public employee to act in a particular
instance, and in evaluating his [or her] conduct to determine
whether it is within the ambit of his [or her] authority we are to
look not to the nature of the act itself, but to the purpose or result
intended. [Citations.] If the object or end to be accomplished is
within the employee’s express or implied authority his [or her]
act is deemed to be within the scope of his [or her] employment
irrespective of its wrongful nature.” (Neal v. Gatlin (1973) 35
Cal.App.3d 871, 875, fn. omitted.)
Here, the allegations in the 4AC establish as a matter of
law that Garrard was acting within the scope of her employment
when she allegedly conspired with Howard and Lewenfus to
suppress bids on Ana’s residence to facilitate a pre-arranged sale
to Lewenfus. Ana alleged Garrard “was in charge[ ] on behalf of
the LASD for conduct [sic] the sale of the Subject Property.
Accordingly, Defendant [Garrard] scheduled the sale for
September 1, 2010. Subsequently, Defendant [Howard] entered
into a conspiracy with Defendant [Garrard], in her individual
capacity and as an employee of the LASD, and [Lewenfus] to
misappropriate the Subject Property.” Thus, according to the
4AC, Garrard was engaged in work she was employed to
23
perform—i.e., scheduling the sale of the property on behalf of the
LASD—when she allegedly conspired with Howard and Lewenfus
to fraudulently suppress bids on Ana’s residence.
We therefore conclude Ana’s claims against Garrard are
barred by her failure to comply with the Government Claims Act.
DISPOSITION
The judgments are affirmed. Howard and Garrard are
awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
24