Goldfarb v. Superior Court

Filed 10/9/07 Goldfarb v. Superior Court CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDINGS in mandate. Thomas Stoever, Judge. Petition granted.

Dempsey & Johnson and Heather M. Noelte for Petitioners.

No appearance for Respondent.

Kenneth W. Kossoff for Real Party in Interest.

_________________________

Petitioners Donna Lear Goldfarb and Jill Lear Richman (Goldfarb and Richman) seek a writ of mandate directing the trial court (1) to vacate its order setting for trial the petition filed by Ivan Tarnove (Tarnove) in which he is attempting to enforce an agreement for purchase and sale of real property; and (2) to dismiss the entire proceeding based upon the principle of collateral estoppel.

The opinion of this court in Estate of Blanche Lear (August 30, 2006, B181768 [nonpub. opn.]), is a final determination that no binding agreement was entered as to the sale of Goldfarb and Richmans remainder interest in the real property. Nothing relating to the purported agreement to sell real property remains to be decided. We therefore issued a notice of our intention to grant the above-captioned petition in the first instance. (Lewis v. Superior Court (1999) 19 Cal.4th 1232; Palmav. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)

Following our review of the additional briefing and the entire record, we conclude the petition must be granted. As stated in Estate of Blanche Lear: An essential element of any contract is consent. [Citation.] The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe. [Citation.] Accordingly, the primary focus in determining the existence of mutual consent is upon the acts of the parties involved. [Citation.] With these principles in mind, we find that substantial evidence supports the probate courts determination that the parties did not enter into a binding settlement agreement with respect to the sale of Goldfarb and Richmans remainder interest in the condo to Tarnove. (Estate of Blanche Lear, supra, B181768, at p. 11, italics added.)

As a matter of law, Tarnoves attempt to relitigate the purported sale of real property is barred by collateral estoppel.

The petition for writ of mandate is granted.

DISCUSSION

1. Background.

Pursuant to an Antenuptial Agreement (Agreement), Tarnoves now-deceased wife, Blanche Lear,^[1]granted Tarnove a life estate in a condominium unit (the condo) in Marina Del Rey, California, which was Blanches separate property. Blanches two adult daughters, Goldfarb and Richman, have remainder interests in the condo.^[2]

In the judgment entered in January 2005, the trial court held the parties did not enter into a final binding settlement with respect to the sale of petitioners remainder interests in the condo.

This court affirmed that judgment in Estate of Blanche Lear holding Substantial evidence supports the probate courts finding that the parties did not enter into a binding settlement agreement with respect to sale of the remainder interest in the condo to Tarnove. (Estate of Blanche Lear, supra, B181768, at p. 2, italics added.)

In March 2007, Tarnove filed a second petition seeking to enforce the same agreement which previously was held to be insufficient to constitute a binding enforceable contract for purchase and sale of the condo. When the trial court set the matter for trial, Goldfarb and Richman filed this petition for a writ of mandate seeking a directive to the trial court compelling it to vacate its order setting trial alleging the opinion of this court in Estate of Blanche Lear is determinative of the issue and there is nothing to be tried. We agree.

In the prior appeal, Tarnove asserted the probate court erred by finding that the parties had not entered into a binding settlement agreement with respect to the sale of Goldfarb and Richmans remainder interest in the condo to Tarnove. In opposition to this petition, Tarnove contends this court abused its discretion by going beyond what he believes was the judgment entered by the trial court in the first action. To the contrary, an essential element in the judgment of the trial court and in the opinion of this court affirming that judgment was the failure of the parties to reach a mutual agreement with respect to the sale of Goldfarbs and Richmans remainder interest in the condo to Tarnove. (Estate of Blanche Lear, supra, B181768, at p. 11.)

Tarnove describes the prior litigation as determinative only of the lack of a binding settlement agreement. He continues to assert there is a binding written real property contract. He presents several letters in support of the assertion, all of which were part of the prior litigation.

The first letter, dated February 17, 2004, from counsel for Goldfarb and Richman to Tarnoves counsel is a rejection of Tarnoves offer to buy the property for $150,000 and stating nothing less than $200,000 will be considered.

The second letter, dated February 26, 2004, from Tarnoves attorney to counsel for Goldfarb and Richman, confirming a telephone conversation to the effect that Tarnove accepts the offer to sell the property to him for $200,000. The letter does not mention the existing dispute about payment of the costs of the transaction.

A third letter, dated March 8, 2004, from counsel for Goldfarb and Richman to Tarnoves attorney, indicates there are many open issues. The letter describes the $200,000 price as an outright bargain and repeats the demand, previously made by telephone, that Tarnove pay all costs of the real estate transaction, including escrow fees, transfer costs, title search fees and cost of title insurance.

Do these letters constitute an agreement to sell real property? No.

Estate of Blanche Lear is clear on the issue: What this exchange shows is that the parties had agreed only to the price to be paid for the remainder interest in the

condo, and that significant issues remained unresolved, including the costs of the transaction . . . . In other words, the foregoing does not show outward manifestations of consent [citation], which would lead a reasonable person to believe that the parties had reached a binding settlement agreement. [] Tarnove responds that as to the real estate transaction, the only important term is the price, and the probate court could have supplied any other missing terms by imposing standard terms and conditions. We reject this assertion. A significant issue remained to be resolved, which party was to bear the costs of the real estate transaction, estimated to be $5,000. The foregoing exchange between counsel for the parties shows that this issue remained unresolved on February 26, 2004, when Tarnove purported to accept the offer to sell for $200,000. (Estate of Blanche Lear, supra, B181768, at p. 12, italics added.)

In view of the decision in Estate of Blanche Lear did the trial court err in setting Tarnoves petition for trial? Yes. There simply is nothing to be determined by trial.

The opinion of this court in Estate of Blanche Lear is determinative of all issues relating to the purported agreement to sell real property. The duplicative petition filed by Tarnove is barred by collateral estoppel.^[3]

2. Collateral estoppel.

In order to invoke collateral estoppel (1) an issue necessarily decided at the previous proceeding must be identical to one which is sought to be relitigated; (2) the first proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding. (Younan v. Caruso (1996) 51 Cal.App.4th 401, 406-407.)

Here, there is a prior final judgment on the merits in an action between the same parties. Tarnove contends there is no identity of issues between the two actions because other facts were a part of the prior lawsuit.^[4] However, Estate of Blanche Lear unmistakably was litigated and determined on the lack of a viable enforceable agreement as to the terms for sale of Goldfarb and Richmans remainder interest in the condo. The precise question was raised and determined in the former suit. The two actions are based upon the same primary right. (Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 181-182.)

Interinsurance Exchange of the Auto. Club (1989) 209 Cal.App.3d 177 discusses the question of the circumstances under which a matter is determined by a prior judgment. Obviously, if it is actually raised by proper pleadings and treated as an issue in the cause, it is conclusively determined by the first judgment. But the rule goes further. If 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 despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. 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. . . . But an issue may not be thus split into pieces. If its has been determined in a former action, it is binding notwithstanding the parties litigant may have omitted to urge for or against it matters, which, if urged, would have produced an opposite result . . . . This principle also operates to demand of a defendant that all of its defenses to the cause of action urged by the plaintiff be asserted under the penalty of forever losing the right to thereafter so urge them. [Citation.] (Id. at p. 182, original italics.)

In the context of collateral estoppel, due process requires that the party to be estopped must have an identity of interest with the losing party in the first action and reasonably have expected to be bound by the prior adjudication. (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 875.) Under the circumstances here, Tarnove, the party estopped, is the same party who lost in the first action and he obviously is bound by the results of the prior adjudication.

Estate of Blanche Lear rejected the identical argument made by Tarnove in his second action. The superior court cannot permit Tarnove to relitigate issues relating to the sale of Goldfarb and Richmans real property interest as such litigation would necessarily rest upon a redetermination of the merits of an issue determined in the first action. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701.)

The judgment in Estate of Blanche Lear operates as a conclusive adjudication because the contractual dispute was actually litigated and determined in the first action. The determination there is no binding enforceable agreement to sell Richman and Goldfarbs interest in the condo to is final and conclusive. In Estate of Blanche Lear, we held: substantial evidence supports the probate courts determination that the parties did not enter into a binding settlement agreement with respect to the sale of Goldfarb and Richmans remainder interest in the condo to Tarnove. (Estate of Blanche Lear, supra, B181768, at p. 11.) That determination is final.

The judgment in Estate of Blanche Lear operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action. [Citation.] (Mata v. City of Los Angeles (1993) 20 Cal.App.4th 141, 149.) Because Tarnoves arguments regarding the purported agreement to purchase Goldfarb and Richmans s remainder interest in the condo was actually litigated and determined in the first action, we conclude Tarnoves second petition is barred by collateral estoppel.

CONCLUSION

All procedural perquisites to issuance of a peremptory writ of mandate in the first instance have been followed. The parties were notified of our intent to issue a peremptory writ of mandate in the first instance. We received and reviewed the subsequent opposition and the reply brief. The judgment in Estate of Blanche Lear operates as a conclusive adjudication because the identical argument made by Tarnove in this action was actually litigated and determined in the prior action. As a matter of law, Tarnoves repetitive attempt to relitigate the issue is barred by collateral estoppel. Nothing remains to be resolved in a second action involving the validity of the purported contract. The order setting the matter for trial is clear error.

Accordingly, we conclude Goldfarb and Richmans   entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue . . . . [Citation.] (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1241.) The petition is granted.

DISPOSITION

Let a peremptory writ of mandate issue directing the trial court to: (1) to vacate its order setting the matter for trial, and (2) to dismiss Tarnoves second petition in which he seeks to enforce a nonexistent agreement for purchase and sale of real property.

Costs of this proceeding are awarded to petitioners Goldfarb and Richman.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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^[1] For ease of reference, Blanche Lear is referred to as Blanche.

^[2] Section 12 of the Agreement provided in pertinent part: In June of 1998, [Blanche] purchased a Condominium apartment located at . . . Marina Del R[e]y, California 90292. Tarnove acknowledges that he has no interest in said property, which is titled solely in the name of [Blanche]. [] Notwithstanding the foregoing, Tarnove, in the event of the prior decease of [Blanche], shall have the right to reside in the Condo until his death or until such time as he decides not to live there. Tarnove agrees to pay the expenses and maintenance and living expenses, so long as the parties continue to live together. In the event of his decease, the estate shall remain the property of [Blanche] or in the event of her prior decease shall become the property of her estate.

^[3] Tarnove argues Goldfarb and Richman are not entitled to relief from the order setting for trial the petition in which he seeks to relitigate the issue relating to sale of real property because they did not file a demurrer, motion for judgment on the pleadings or motion for summary judgment in the trial court but instead filed opposition to the petition. Written opposition is a proper response to a petition for writ of mandate and is sufficient to place the issue squarely before the court. (See Cal. Stds. Jud. Admin., rule 10.608.)

^[4] In addition, Goldfarb and Richman, as part of the settlement in the prior action, demanded reimbursement for their attorney fees and requested return of various items in the condo, including a piano and an antique kimono. Goldfarb and Richman also demanded that Tarnoves name be removed from Blanche Lears headstone.