File 9/18/26 Kuigoua v. Sacks CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ARNO KUIGOUA, B351600
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 25STCV00394)
v.
ADAM MICHAEL SACKS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Upinder S. Kalra, Judge. Affirmed.
Arno Kuigoua, in pro. per., for Plaintiff and Appellant.
Law Office of Adam Michael Sacks and Adam Michael
Sacks for Defendant and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff and appellant Arno Kuigoua sued his former
attorney, Adam Michael Sacks, settled the case, then sued Sacks
again. The trial court rejected Kuigoua’s procedural challenges
to Sacks’s demurrer and sustained it without leave to amend,
concluding the action was barred by preclusion.
On appeal, Kuigoua contends the trial court erred by
sustaining the demurrer and that several procedural
irregularities deprived him of due process. However, Kuigoua
has not provided a record adequate for appellate review and has
otherwise failed to demonstrate trial court error. We therefore
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Kuigoua’s First Action Against Sacks
In May 2020, Kuigoua sued Sacks, an attorney who had
represented him, for professional negligence, breach of fiduciary
duty, and promissory fraud.1 On March 14, 2022, Kuigoua’s then
attorney, Michael Labrum, filed a notice of settlement and a
request for dismissal, and the action was dismissed.
In January 2025, Kuigoua moved to set aside the dismissal,
contending that Labrum had settled the action and dismissed it
without his knowledge or consent and that he had never received
any settlement payment. The trial court denied the motion as
untimely under Code of Civil Procedure section 473,
subdivision (b), and found Kuigoua had not shown a meritorious
1 We take judicial notice of the decision in Kuigoua v. Sacks
(Mar. 10, 2026, B345468 [nonpub. opn.]), issued by a different
division of this court. (See Evid. Code, § 452, subd. (d); Cal. Rules
of Court, rule 8.1115(b)(1).)
2
case of extrinsic fraud or diligence in seeking relief.2 The court
denied two ensuing motions for reconsideration. The order
denying the motion to set aside the dismissal was affirmed on
appeal.
The Instant Action3
On January 7, 2025, Kuigoua filed the instant action
against Sacks, alleging causes of action for (1) breach of contract,
(2) fraudulent inducement, (3) unjust enrichment, (4) conversion,
(5) intentional infliction of emotional distress, (6) negligent
infliction of emotional distress, (7) violation of Business and
Professions Code section 17200, and (8) declaratory relief. The
complaint alleged Sacks colluded with Labrum to settle the prior
action without Kuigoua’s knowledge or consent, and that Kuigoua
never received settlement funds in that case.
On August 4, 2025, Sacks demurred to the complaint,
arguing that the dismissal of the prior action barred the current
one. Kuigoua opposed the demurrer, arguing that each cause of
action was sufficiently pleaded, the demurrer was procedurally
defective, and the dismissal of the prior action did not bar his
complaint. Kuigoua also attached a proposed first amended
complaint (FAC) to his opposition, which alleged that Kuigoua
“had not seen, approved, or signed any settlement agreement and
had not authorized dismissal” in the prior action and that “[n]o
portion of any settlement proceed has ever been disbursed to
[Kuigoua].”
2 All further undesignated statutory references are to the
Code of Civil Procedure.
3 We derive the relevant facts for the instant action from the
case register, Sacks’s demurrer, Kuigoua’s opposition to the
demurrer, and the trial court’s ruling on Sacks’s demurrer.
3
The trial court held a hearing on Sacks’s demurrer on
October 17, 2025, and issued a written ruling that same day.
After taking judicial notice of the case files in the prior action
against Sacks and in Kuigoua v. Labrum, Los Angeles County
Superior Court, No. 24STCV10056 (an action Kuigoua
maintained against Labrum), the court sustained the demurrer,
finding the action barred by res judicata. The court concluded
that the prior action had resulted in a final judgment of
dismissal, the issues were identical, and the parties were the
same. On the identity of issues, the court reasoned that
Kuigoua’s motion to vacate had raised the same contention made
here: that the settlement was void because Labrum entered into
it and dismissed the action without Kuigoua’s consent. The court
had denied that motion.
The trial court also denied leave to amend the complaint.
The court found Kuigoua’s proposed FAC did not cure the original
complaint’s fatal defects. The court further found that Kuigoua’s
proposed amendment violated the sham pleading doctrine
because it made claims that were inconsistent with the complaint
filed in Kuigoua v. Labrum, supra, No. 24STCV10056.
Kuigoua timely appealed.
DISCUSSION
A. The appeal is properly before us
Sacks contends the appeal must be dismissed because
Kuigoua appealed from the order sustaining the demurrer rather
than from a judgment. “[A]n order sustaining a demurrer is not
appealable,” and “[a]n appeal can only be taken after the court
enters judgment on the order sustaining the demurrer.”
(Cardenas v. Horizon Senior Living, Inc. (2022) 78 Cal.App.5th
1065, 1069, citing Hill v. City of Long Beach (1995) 33
4
Cal.App.4th 1684, 1695.) The record here, however, contains an
order signed by the trial court dismissing Kuigoua’s action with
prejudice. That order is an appealable judgment. (See § 581d
[“All dismissals ordered by the court shall be in the form of a
written order signed by the court and filed in the action and those
orders when so filed shall constitute judgments”].) In accordance
with California Rules of Court, rules 8.100(a)(2) and 8.104(d), we
liberally construe Kuigoua’s notice of appeal to have been taken
from the judgment of dismissal. (See, e.g., Los Altos Golf &
Country Club v. County of Santa Clara (2008) 165 Cal.App.4th
198, 202; Gu v. BMW of North America, LLC (2005) 132
Cal.App.4th 195, 202–203.)
B. The record is inadequate for appellate review
As an initial matter, we note that Kuigoua’s appellate
briefing is entirely deficient because it provides no citations to
the record. California Rules of Court, rule 8.204(a)(1)(C) requires
that parties support any reference to matter in the record with a
citation to the place in the record where the matter appears. If a
party fails to comply with this rule, we may treat any
unsupported point as forfeited. (WFG National Title Ins. Co. v.
Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894.) Applied
here, the rule would allow us to disregard all of Kuigoua’s
arguments.4 However, there is a more fundamental, but related,
4 Sacks asks us to strike Kuigoua’s opening brief and to
impose sanctions. We decline to strike the brief and, as for
sanctions, the request was not made by a separate motion as
required by California Rules of Court, rule 8.276(b)(1). We
therefore deny the request. (Cowan v. Krayzman (2011)
196 Cal.App.4th 907, 919 [sanctions must be in separate motion
and cannot be sought in respondent’s brief].)
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problem: the record itself is insufficient for appellate review of
Kuigoua’s claims.
We review de novo an order sustaining a demurrer (People
ex rel. Allstate Ins. Co. v. Discovery Radiology Physicians, P.C.
(2023) 94 Cal.App.5th 521, 532), and we review the denial of
leave to amend for abuse of discretion (Flores v. Department of
Corrections and Rehabilitation (2014) 224 Cal.App.4th 199, 209).
Neither standard relieves an appellant of the obligation to
provide a record adequate for meaningful review. A judgment is
presumed correct, and the appellant bears the burden of
affirmatively demonstrating reversible error from the record
presented. If the record is inadequate for meaningful review, the
claim of error must be resolved against the appellant. (Jameson
v. Desta (2018) 5 Cal.5th 594, 608–609; see Osgood v. Landon
(2005) 127 Cal.App.4th 425, 435 [appellant defaults where the
record provided omits portions of the proceedings that might
support the trial court’s decision].) The same rules apply to a
party appearing in propria persona as to any other. (Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)
Kuigoua challenges the trial court’s application of “claim
preclusion” to bar his action and its denial of leave to amend.
Claim preclusion applies when a second suit involves the same
cause of action between the same parties after a final judgment
on the merits. The related doctrine of issue preclusion
“ ‘precludes relitigation of issues argued and decided in prior
proceedings’ ” (Mycogen Corp. v. Monsanto Co. (2022) 28 Cal.4th
888, 896), and applies when an identical issue has been actually
litigated and necessarily decided in a final adjudication of a prior
action (Samara v. Matar (2018) 5 Cal.5th 322, 326–327).
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“ ‘[A] primary factor in determining whether to give
collateral estoppel [or issue preclusion] effect to a prior final
judgment is whether the record in the former proceeding
adequately reflects the issues actually litigated and decided in
that proceeding.’ [Citation.] ‘The party asserting collateral
estoppel bears the burden of establishing [its] requirements.’
[Citation.] The same is true for res judicata [or claim preclusion].
‘The burden of proving that the requirements for application of
res judicata have been met is upon the party seeking to assert it
as a bar or estoppel.’ [Citation.]” (Patel v. Crown Diamonds, Inc.
(2016) 247 Cal.App.4th 29, 40.)
Kuigoua contends that the trial court erred in finding that
Sacks met his burden to show that the requirements of claim
preclusion were met. However, to reach its ruling, the trial court
considered Kuigoua’s complaint and the records of Kuigoua’s
prior action against Sacks and the subsequent action against
Labrum.
As the appellant, Kuigoua is responsible for providing an
adequate record on appeal. The documents Kuigoua designated
for inclusion in a clerk’s transcript and that he provided in a
motion to augment the record were (in the order presented): his
opposition to the demurrer; the minute order adopting the trial
court’s tentative ruling (not included) and granting the demurrer
without leave to amend; Kuigoua’s objections to the trial court’s
ruling; the notice designating the record on appeal; the notice of
appeal; two copies of Sacks’s declaration in support of an
automatic extension of time to respond to the complaint; Sacks’s
declaration regarding meet and confer; the demurrer; a minute
order setting an order to show cause hearing regarding why the
court should not declare Kuigoua a vexatious litigant; the signed
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order of dismissal; and the trial court’s earlier tentative ruling on
Sacks’s motion to declare Kuigoua a vexatious litigant.
What is missing are the documents upon which the trial
court ruling rests. The trial court sustained the demurrer after
taking judicial notice of the case files in the prior action and in
Kuigoua v. Labrum. Those files, the operative complaint in this
action, and the motions and rulings from the prior action are the
materials that would show whether the two proceedings involved
the same cause of action, what was adjudicated, and whether
Sacks carried his burden. Without those portions of the trial
court record, Kuigoua cannot show that the trial court erred in
finding that claim preclusion applied to bar Kuigoua’s complaint.
The same omissions prevent any review of the denial of
leave to amend. The court found Kuigoua’s proposed FAC did not
cure the preclusion defect in the operative complaint—an
assessment that turns on the issues raised and resolved in the
prior action. The court’s sham pleading ruling rested on a
comparison of the proposed FAC with the complaint in Kuigoua
v. Labrum, supra, No. 24STCV10056, which is likewise not before
us.
Kuigoua’s remaining contentions fail for the same reason.
His arguments that the trial court dismissed the action without
adjudicating the economic claims he pleaded, improperly resolved
whether Sacks performed the settlement or paid consideration,
and misapplied the sham pleading doctrine each depend on
documents absent from the appellate record.
The trial court’s written ruling is before us; the documents
necessary to evaluate it are not. The judgment is presumed
correct and Kuigoua fails to demonstrate a basis for reversal.
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C. Kuigoua’s judicial estoppel argument is forfeited
Kuigoua argues for the first time in his reply brief that
Sacks should be judicially estopped from invoking the contested
settlement to assert issue preclusion in this action after he used
it to obtain a dismissal with prejudice in the prior action. The
argument is forfeited. A contention raised for the first time in a
reply brief comes too late, and we do not consider it. (High Sierra
Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102,
112, fn. 2; accord, SCI California Funeral Services, Inc. v. Five
Bridges Foundation (2012) 203 Cal.App.4th 549, 573, fn. 18.)
D. The trial court did not violate Kuigoua’s right to
procedural due process
We review Kuigoua’s procedural due process challenge
de novo, as the ultimate determination of procedural fairness is a
question of law. (Severson & Werson, P.C. v. Sepehry-Fard (2019)
37 Cal.App.5th 938, 944.) “ ‘The fundamental requirements of
procedural due process are notice and an opportunity to be heard
before the government may deprive a person of a protected
liberty or property interest.’ [Citation.]” (Alviso v. Sonoma
County Sheriff’s Dept. (2010) 186 Cal.App.4th 198, 209.) The
notice required must be “ ‘ “reasonably calculated to apprise
interested parties of the pendency of the action affecting
their property interest” ’ ” (Barri v. Workers’ Comp. Appeals Bd.
(2018) 28 Cal.App.5th 428, 466, italics omitted; accord, Ryan v.
California Interscholastic Federation-San Diego Section (2001) 94
Cal.App.4th 1048, 1072), and “[t]he opportunity to be heard must
be afforded ‘at a meaningful time and in a meaningful manner’ ”
(Today’s Fresh Start, Inc. v. Los Angeles County Office of
Education (2013) 57 Cal.4th 197, 212). “Beyond these broad
outlines, however, the precise dictates of due process are flexible
9
and vary according to context” (Today’s Fresh Start, Inc. at
p. 212), thus courts are required “ ‘to tailor the process [due] to
the particular need’ ” (Barri, at p. 465; accord, Ryan, at p. 1072).
Kuigoua contends the proceedings denied him procedural
due process in three respects: the trial court entertained Sacks’s
untimely demurrer, impairing his ability to fully respond; Sacks’s
meet-and-confer declaration contained misrepresentations; and
Sacks served the demurrer by mail, in violation of an order to
serve documents electronically. Kuigoua has not shown that he
was deprived of constitutionally adequate notice or an
opportunity to be heard on Sacks’s demurrer.
Sacks’s demurrer was filed after the responsive pleading
deadline, but Kuigoua does not demonstrate that its untimeliness
deprived him of an adequate opportunity to be heard or that the
trial court was without discretion to entertain it. Sacks’s
demurrer was served by mail and filed on August 4, 2025, over
two months before the October 17 hearing and well in advance of
the applicable statutory notice deadline. (See § 1005, subd. (b)
[moving papers must be served and filed at least 16 court days
before the hearing, a period extended by five calendar days when
served by mail on a California address].) Although Kuigoua does
not specify exactly when he became aware of the demurrer’s
filing, he was able to file his opposition on September 25, well
before the nine-court-day statutory deadline for filing opposing
papers. (See ibid. [“All papers opposing a motion . . . shall be
filed with the court and a copy served on each party at least nine
court days . . . before the hearing”].) He did not seek a
continuance or otherwise request more time to respond.
Moreover, Kuigoua’s opposition thoroughly addressed the
arguments in Sacks’s demurrer regarding issue preclusion and
10
the purported deficiencies of each alleged cause of action. It
further presented multiple affirmative arguments regarding the
demurrer’s own procedural deficiencies. Despite Kuigoua’s
contention to the contrary, the court had discretion to entertain
and adjudicate Sacks’s late demurrer. (§ 473, subd. (a)(1) [“The
court may, in furtherance of justice, and on any terms as may be
proper, . . . enlarge the time for answer or demurrer”]; accord,
Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) The record
further shows a hearing was held on the demurrer, and Kuigoua
does not contend that any aspect of that proceeding was
inadequate. Kuigoua identifies no issues he was prevented from
arguing. On this record, he received notice, a full opportunity to
respond, and a hearing. He was not deprived of a constitutionally
adequate opportunity to oppose the demurrer.
As for Kuigoua’s contention that Sacks’s meet-and-confer
declaration contained falsities, the trial court found the
declaration insufficient but concluded that its insufficiency was
not a proper ground to overrule the demurrer. The court did not
err in doing so, as section 430.41, subdivision (a)(4), specifies that
“[a] determination by the court that the meet and confer process
was insufficient shall not be grounds to overrule or sustain a
demurrer.” (See, e.g., Dumas v. Los Angeles County Bd. of
Supervisors (2020) 45 Cal.App.5th 348, 355; Olson v. Hornbrook
Community Services Dist. (2019) 33 Cal.App.5th 502, 515.)
Kuigoua does not explain how any perceived deficiency in Sacks’s
meet-and-confer declaration deprived him of notice or an
opportunity to be heard on the demurrer.
Finally, even assuming Sacks was required to serve the
demurrer electronically, Kuigoua obtained actual notice and filed
a timely and thorough opposition. He has not identified any
11
argument or evidence he was prevented from presenting. Any
defect in the method of service therefore did not deprive him of
notice or an opportunity to be heard. (See Cowan v. Krayzman,
supra, 196 Cal.App.4th at p. 918 [defects in service or inadequate
notice waived where the opposing party opposed on the merits,
appeared at the hearing, and did not seek a continuance].)
E. We decline to declare Kuigoua a vexatious litigant
On May 5, 2026, Sacks filed a motion with this court to
have Kuigoua declared a vexatious litigant, citing in support of
the motion 10 cases Kuigoua filed in California courts. On
June 2, 2026, we denied Sacks’s motion, concluding that Sacks
had not sufficiently shown Kuigoua met any of the definitions of
“vexatious litigant” in section 391. Sacks’s respondent’s brief
renews his request to have Kuigoua declared a vexatious litigant,
now identifying 15 cases filed by Kuigoua as support.
Section 391 permits a Court of Appeal to declare a litigant
vexatious in the first instance in the course of an appeal. (John
v. Superior Court (2016) 63 Cal.4th 91, 99.) Section 391,
subdivision (b), defines “ ‘[v]exatious litigant’ ” in multiple ways.
As relevant here, section 391, subdivision (b)(1), defines a
vexatious litigant as a person who “[i]n the immediately
preceding seven-year period has commenced, prosecuted, or
maintained in propria persona at least five litigations other than
in a small claims court that have been (i) finally determined
adversely to the person or (ii) unjustifiably permitted to remain
pending at least two years without having been brought to trial
or hearing.” A litigation is “finally determined adversely” to a
plaintiff if the plaintiff does not prevail in the action and the
avenues for direct review have been exhausted. (Garcia v. Lacey
(2014) 231 Cal.App.4th 402, 406–407 & fn. 5.)
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Section 391, subdivision (b)(2), defines a vexatious litigant
as any person who “[a]fter a litigation has been finally
determined against the person, repeatedly relitigates or attempts
to relitigate, in propria persona, either (i) the validity of the
determination against the same defendant or defendants as to
whom the litigation was finally determined or (ii) the cause of
action, claim, controversy, or any of the issues of fact or law,
determined or concluded by the final determination against the
same defendant or defendants as to whom the litigation was
finally determined.” Finally, section 391, subdivision (b)(3),
provides that a vexatious litigant is any person who “[i]n any
litigation while acting in propria persona, repeatedly files
unmeritorious motions, pleadings, or other papers, conducts
unnecessary discovery, or engages in other tactics that are
frivolous or solely intended to cause unnecessary delay.”
Sacks has not adequately shown that Kuigoua is a
vexatious litigant within the meaning of any of these provisions.
With respect to section 391, subdivision (b)(1), Sacks cites 15
cases. He has not shown that five of them were commenced,
prosecuted, or maintained by Kuigoua in propria persona within
the seven years preceding his motion and either finally
determined adversely to Kuigoua or unjustifiably permitted to
remain pending two years without trial or hearing. Sacks
neglected, for example, to provide relevant documentation for
most of the listed cases that would permit this court to determine
whether they fall within section 391, subdivision (b). This court
does not have before it trial court records of matters not being
appealed in this court.
Further, Sacks’s reliance on the pre-appeal filings in the
prior action and Kuigoua’s pursuit of the instant action does not
13
sufficiently show Kuigoua engaged in “repeated” relitigation
under section 391, subdivision (b)(2). (See Holcomb v. U.S. Bank
Nat. Assn. (2005) 129 Cal.App.4th 1494, 1502 [“filing of motions
for reconsideration and appeal before a judgment is final for all
purposes would not support a vexatious litigant finding under
section 391, subdivision (b)(2)”]; id. at p. 1504 [concluding “two
attempts at relitigation alone” were insufficient to satisfy
subdivision (b)(2)’s repeated relitigation requirement].)
As for section 391, subdivision (b)(3), Sacks does not point
to any specific action wherein Kuigoua repeatedly filed
unmeritorious papers or engaged in tactics that were frivolous or
intended to cause delay. (See Morton v. Wagner (2007) 156
Cal.App.4th 963, 972 [“While there is no bright-line rule as to
what constitutes ‘repeatedly,’ most cases affirming the vexatious
litigant designation involve situations where litigants have filed
dozens of motions either during the pendency of an action or
relating to the same judgment.”].)
We note that some of Kuigoua’s actions in this appeal have
been questionable, at best. In addition to omitting crucial
documents from the appellate record and submitting opening and
reply briefs that failed to cite to the record, many of Kuigoua’s
citations to case law are to cases that do not support the
propositions for which they are offered.5 Two other panels of this
court have brought the same deficiency to his attention.
(Kuigoua v. Sacks, supra, B345468; Kuigoua v. Park, supra,
5 Sacks also contends that Kuigoua has relied on nonexistent
authority in this matter and in a previous appeal (Kuigoua v.
Park (Nov. 10, 2025, B343489) [nonpub. opn.].) We have
reviewed the authorities cited in Kuigoua’s opening and reply
briefs and have not found any wholly fabricated cases.
14
B343489.) Every party, whether represented or self-represented,
certifies by presenting a brief that its legal contentions are
warranted by existing law or a nonfrivolous argument for its
extension, modification, or reversal. (§ 128.7, subd. (b)(2).) Thus,
although we deny Sacks’s request to declare Kuigoua a vexatious
litigant, we stress that the denial is without prejudice to a future
request, by any party or on the court’s own motion, supported by
an adequate showing under section 391.
DISPOSITION
The judgment is affirmed. Sacks is to recover his costs on
appeal.
ADAMS, P. J.
We concur:
HANASONO, J.
DELGADO, J.*
* Judge of the Santa Clara Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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