Antoun v. Sirisut

Filed 8/8/08 Antoun v. Sirisut CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Roy L. Paul, Judge. Affirmed.

Law Offices of Thomas Edward Wall and Thomas Edward Wall for Plaintiff and Appellant.

Paul J. Shardlow for Defendants and Respondents.

Plaintiff, Kiriacou Antoun, appeals from an order sustaining a demurrer to his contract breach and declaratory relief complaint without leave to amend and an ensuing judgment. Defendants, Preecha and Suwanee Sirisut doing business as 7 Eleven Food Store No. 209679 (the Sirisuts), demurred to plaintiffs complaint which arose out of their refusal to pay the costs of defense of another lawsuit. We affirm the judgment.

According to the complaint, between February 2001 and September 8, 2003, a written contract (the contract) existed between the Sirisuts, who are convenience store franchisees, and Jaguar Security Service Inc. (the security service). Plaintiff was an officer and director of the security service. Under the terms of the contract, the security service provided security guards at the Sirisuts convenience store. Pursuant to the contract, the Sirisuts agreed to defend the security service if it were sued by others regarding the duties and obligations owed under their agreement.

On May 3, 2003, Kenneth Mattox sued the security service. Mr. Mattox, who was a customer of the Sirisuts, was injured by a security service guard. The complaint alleged [Mr.] Mattox later pierced the corporate veil of [the security service] sued plaintiff as an individual . . . in the underlying lawsuit. In the underlying lawsuit brought by Mr. Mattox, the security service, and Juan Vivanco and plaintiff and Nader Antoun (the Antouns) filed a cross-complaint against the Sirisuts. Among other things, the cross-complaint alleged the Sirisuts had a duty to defend the security service in the underlying action. Thereafter, the security service filed a summary adjudication motion which sought a determination that the Sirisuts owed it a duty to defend the lawsuit filed by Mr. Mattox. On September 8, 2003, the security services summary adjudication motion was granted. According to the complaint, the summary adjudication order found Preecha Sirisut dba and sued as 7-Eleven Food Stores Number 20679 owed a duty to defend the security service in the underlying suit filed by Mr. Mattox. The Sirisuts breached the contract despite numerous requests by plaintiff to defend him in the litigation commenced by Mr. Mattox. On January 13, 2005, judgment was entered in Mr. Mattoxs favor against the security service and plaintiff in the sum of $834,000. Plaintiff alleged that had defendants complied with their duty to defend, judgment would have been entered in his and the security services favor or in a lesser amount. Plaintiff alleged he was damaged in a sum in excess of $100,000.

The second cause of action was for declaratory relief. New facts were alleged in the second cause of action concerning what occurred in the underlying lawsuit commenced by Mr. Mattox against the security service and plaintiff. In terms of the underlying lawsuit commenced by Mr. Mattox, on September 27, 2004, judgment was entered on the cross-complaint of the security service, Mr. Vivanco, and the Antouns against plaintiff and in the Sirisuts favor. The second cause of action alleged: Plaintiff herein contends the September 27,2004 judgment must be read in conjunction with the court order of September 08, 2003 and that the September 27, 2004 judgment did not disturb the order of the court that the defendants herein owed a duty to the plaintiff herein to defend him in the lawsuit. Based on information and belief, the plaintiff believes the defendants herein allege that the September 27, 2004 order included the duty to defend and that the September 08, 2003 court order did not obligate the defendants to defend the plaintiff in the litigation. As a result, the complaint briefly alleged a controversy existed between the parties as to their rights and duties.

On February 1, 2007, the Sirisuts demurred to the complaint. The demurrer states the Sirisuts were erroneously sued as 7 Eleven Food Store #209679. They demurred in their own capacity. They asserted the first cause of action was barred on res judicata grounds, and as to the second cause of action, there was no controversy between the parties. Accompanying the demurrer was a judicial notice request. For purposes of clarity, we will initially set forth the judicially noticeable documents provided by the parties. The Sirisuts requested judicial notice of the entire superior court file in the case of Kenneth Mattox v. 7 Eleven Food Store #20679 (Super. Court L.A. County, 2002, No. NC 032294). Plaintiff has not provided us with the entire superior court file but only those papers physically attached to the Sirisuts judicial notice request.

The first document attached to the judicial notice request was the answer of the security service, Mr. Vivanco, and the Antouns to Mr. Mattoxs unverified first amended complaint in the underlying action. The general denial alleged the following affirmative defenses: comparative negligence; assumption of the risk; the first amended complaint failed to state a cause of action; statute of limitations; apportionment of fault with other tortfeasors; reduction of fault for only non-economic damages; collateral estoppel; res judicata; self-defense; Mr. Mattox was responsible for his own injuries by reason of his intentional acts; Mr. Mattox was engaged in mutual combat when he was injured; Mr. Mattoxs injuries resulted from the acts of unidentified third parties; no unity of interest existed so as to permit the corporate existence to be disregarded; and equity did not warrant the court disregarding the corporate entity.

Also attached to the Sirisuts judicial notice request was the cross-complaint filed by the security service, Mr. Vivanco, and the Antouns against: 7 Eleven, Inc.; 7 Eleven Food Store #20679; and the Sirisuts. The cross-complaint incorporated by reference Mr. Mattoxs first amended complaint. The first two causes of action sought relief based on theories of: equitable indemnity; contribution; and implied indemnity. According to the cross-complaint, 7 Eleven, Inc., 7 Eleven Food Store #206879, and the Sirisuts were responsible in whole or in part for Mr. Mattoxs injuries. The third cause of action in the cross-complaint was for declaratory relief and sought a declaration of the parties rights and obligations.

The fourth cause of action in the cross-complaint was for express indemnity. On February 23, 2001, the security service entered in a written contract with 7 Eleven located at 1004 Long Beach Boulevard. The security service was obligated to provide uniformed security personnel at the Long Beach Boulevard address. Paragraph 10 of the contract stated that the client had the obligation to indemnify, defend, and hold the security service harmless. The forgoing obligations applied to any claim or lawsuit arising from any of the security services duties owed under the contract. The contract was signed by the Sirisuts on behalf of 7 Eleven Food Store. In addition, attached to the judicial notice request was a notice of ruling filed September 27, 2004, in the underlying suit brought by Mr. Mattox. According to the notice of ruling, judgment of nonsuit was entered on behalf of the Sirisuts on the cross-complaint of security service, Mr. Vivanco, and the Antouns.

The opposition to the demurrer asserted that on September 8, 2003, the judge in Mr. Mattoxs underlying action, the Honorable Judith A. Vander Lans, granted a summary adjudication motion on the third cause of action in the cross-complaint and found that the Sirisuts owed a duty to defend plaintiff. According to plaintiff: When [Judge Vander Lans] granted the motion for summary adjudication on the third cause of action to defend, this imposed a duty on the defendants to do so. When the defendants herein refused to fulfill their duty to defend, the plaintiffs herein had the right to sue for damages. Further, the security service argued the doctrine of res judicata did not apply because Judge Vander Lans granted its summary adjudication motion.

On October 24, 2007, the Sirisuts filed a further points and authorities. Attached to the further points and authorities was the reporters transcript of the September 27, 2004 hearing where the nonsuit was entered in favor of the Sirisuts on the cross-complaint of the security service, Mr. Vivanco, and the Antouns. Only the attorneys for Mr. Mattox and the Sirisuts appeared on September 27, 2005, the date set for trial. Counsel for the security service, Mr. Vivanco, and the Antouns had been relieved and there was no appearance for them. In light of the fact there was no lawyer present for the security service, Mr. Vivanco, and the Antouns, counsel for the Sirisuts, Paul Shardlow, moved for a nonsuit on the cross-complaint. The following occurred: MR. SHARDLOW: I would just request the court grant a motion for non-suit on the cross-complaint as to my client[s]. Were no longer defendants. Theres no one here to prosecute the cross-complaint. We would just move for a non-suit. [] THE COURT: And procedurally, thats going to take care of it? Youre comfortable with that? [] MR. SHARDLOW: Yes, I believe so. Id prefer that as opposed to a dismissal because I believe that a judgment of non-suit incorporates the cross-complaint and ends the issue. [] THE COURT: All right. [] [Plaintiffs counsel]: To the extent not inconsistent with the previous rulings of the court. [] THE COURT: All right, then we will be granting that motion. And so then were going to go forward on just the complaint. An uncontested trial was then held before Judge Vander Lans on the complaint.

On November 15, 2007, the hearing on the demurrer was held before Judge Roy L. Paul. Plaintiff has failed to provide us with a reporters transcript of the November 15, 2007 demurrer hearing. On November 28, 2007, Judge Paul entered judgment in favor of the Sirisuts. On January 18, 2008, plaintiff filed a notice of appeal from the judgment.

First, plaintiff has not provided us with an adequate record to permit appellate review. As the appellant, it is plaintiffs responsibility to provide an adequate record to permit accurate appellate review. In the absence of a complete record, a reviewing court will not presume error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; In re Kathy P. (1979) 25 Cal.3d 91, 102; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.)

The record is inadequate because plaintiff has failed to provide the reporters transcript of the demurrer hearing. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [new trial motion hearing]; In re Kathy P., supra, 25 Cal.3d at p. 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Boeken v. Phillip Morris Inc. (2005) 127 Cal.App.4th 1640, 1672 [transcript of judges ruling on an instruction request]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657, [nonsuit motion where trial transcript not provided]; Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th at p. 1448 [monetary sanctions hearing]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporters transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc. Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit, supra, 88 Cal.App.3d at pp. 713-714[demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporters transcript of settled statement as to offers of proof].) Thus, the judgment must be affirmed based on the inadequacy of the record.

Second, even based on the incomplete record provided, we conclude Judge Paul correctly sustained the Sirisuts demurrer to the first cause of action for contract breach on res judicata grounds. As noted, Judge Vander Lanss granted the Sirisuts nonsuit motion. For res judicata purposes, the nonsuit order acted as a final determination that no duty of defense was owed by the Sirisuts to plaintiff in Mr. Mattoxs lawsuit. (Code Civ. Proc., 581c, subd. (c); Arnow v. LaCroix (1990) 219 Cal.App.3d 1039, 1047; Tevis v. Beigel (1957) 156 Cal.App.2d 8, 11-12.) The same primary right, whether the Sirisuts had a duty to defend plaintiff in Mr. Mattoxs lawsuit, was at issue in this case. Thus, Judge Vander Lans judgment is entitled to full res judicata effect in this case. (Mycogen v. Corp. v. Monsato Co. (2002) 28 Cal.4th 888, 904-905; Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682.)

There is no merit to plaintiffs argument Judge Vander Lans September 8, 2003 order granting summary adjudication on the third cause of action in the cross-complaint is entitled to res judicata effect. The judgment that was ultimately entered established the Sirisuts owed no duty to defend plaintiff in Mr. Mattoxs lawsuit. The Legislature has explicitly determined a nonsuit judgment operates as an adjudication on the merits. (Code Civ. Proc., 581c, subd. (c).) No statute gives the same effect to a summary adjudication order. Moreover, a summary adjudication order is not final in the sense of a nonsuit judgment. (Code Civ. Proc., 437c, subd. (n)(1).) For example, a trial court can reconsider a summary adjudication order on its own motion anytime prior to the entry of judgment. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) 10:380, pp. 10-133 to 10-134 (rev. # 1, 2008).) In any event, if error occurred, it was forfeited by the failure of the security service, Mr. Vivanco, and the Antouns to appear for trial and assert that the summary adjudication order was controlling. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185; In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) The decision relied upon by plaintiff, Conway v. Bughouse, Inc. (1980) 105 Cal.App.3d 194, 200-203, does not involve: the res judicata effect of a nonsuit judgment; the failure of a party to appear for trial; and issues of forfeiture as are present in this case.

Third, as to the declaratory relief claim, Judge Paul correctly sustained the demurrer without leave to amend. A declaratory relief claim is subject to specific pleading requirements. Our Supreme Court has noted: The requirement that plaintiffs seeking declaratory relief allege the existence of an actual, present controversy [citation] would be illusory if a plaintiff could meet it simply by pointing to the very lawsuit in which he or she seeks that relief. Obviously, the requirement cannot be met in such a bootstrapping manner; a request for declaratory relief will not create a cause of action that otherwise does not exist. [Citations.] Rather, an actual, present controversy must be pleaded specifically and the facts of the respective claims concerning the [underlying] subject must be given. [Citations.] (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80, orig. italics; California Assn. of Private Special Education Schools v. Department of Education (2006) 141 Cal.App.4th 360, 377; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (2006) 6:187, p. 6-53 (rev. # 1, 2006).) The vaguely pled allegations in the declaratory relief cause of action do not meet these requirements. Plaintiff has identified no additional facts that would be alleged in order to show the existence of some present controversy.

The order sustaining the demurrer without leave to amend and judgment of dismissal are affirmed. Defendants, Preecha and Suwanee Sirisut doing business as 7 Eleven Food Store No. 209679, shall recover their costs incurred on appeal from plaintiff, Kiriacou Antoun.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.

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