Filed 2/10/15 Indulkar v. East Desert Valley Investments CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


ANIL INDULKAR, as Trustee, etc., et al.,

     Plaintiffs and Appellants,                                        G050400

         v.                                                            (Super. Ct. No. RIC498040)

EAST DESERT VALLEY                                                     OPINION
INVESTMENTS, INC., et al.,

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of Riverside County, Harold
W. Hopp, Judge. Affirmed.
                   Law Offices of Lawrence R. Bynum and Lawrence R. Bynum for Plaintiffs
and Appellants.
                   Borton Petrini and Daniel L. Ferguson for Defendants and Respondents.
                                          *                  *                  *
               The parties involved in the matter before us have been doing business
together, and litigating against each other, for years. Plaintiff and appellant Anil
Indulkar, as trustee of four trusts (appellant), alleged in the action before us that
defendants and respondents East Desert Valley Investments, Inc. (East Desert), Vinod
Kaura, and Veena Kaura (collectively, respondents), deprived him of his ownership
interest in East Desert and of his share of the proceeds of a refinance of certain apartment
property owned by East Desert (Indulkar v. East Desert Valley Investments, Inc. (Super
Ct. Riverside County, 2012, No. 498040)) (Present Action). The trial court held that
appellant either litigated or had every opportunity to litigate, these issues in a prior
lawsuit settled in 2005 (Indulkar v. Kaura (Super. Ct. San Diego County, 2005, No.
835576)) (San Diego Action), and that his claims were barred by the statute of
limitations.
               Appellant claims the court erred in applying the doctrine of res judicata and
the statute of limitations in granting respondents’ motions for judgment on the pleadings
and in awarding attorney fees to respondents pursuant to the settlement agreement in the
San Diego Action. We agree with respondents that the doctrine of res judicata bars the
Present Action. That being the case, we need not address whether the statute of
limitations also bars the Present Action. We affirm the judgment. We do not address
appellant’s challenge to the attorney fees award, inasmuch as we have no jurisdiction to
do so.
                                               I
                                           FACTS
               The judgment before us arises out of respondents’ Code of Civil Procedure
section 631.8 motions for judgment on the pleadings with respect to bifurcated issues.
The parties submitted to the court what they termed a “Joint Statement of Undisputed




                                               2
Facts” for the court’s consideration in evaluating the motions, in addition to each party’s
offer of proof and exhibits. The “Joint Statement of Undisputed Facts” contained two
lists of facts, one proffered by each party. They were characterized as “undisputed” only
for the purposes of the motions, and were intended to be subject to proof should a trial
follow. The following facts are taken from appellant’s proffered statement of undisputed
facts.
              Anil Indulkar and his wife, Gouri, engaged in certain business ventures
with Vinod and Veena Kaura.1 Those included at least three real property ventures, two
of which were in California. At one point, an apartment complex known as Mollison
Elms, located in El Cajon, was purchased. Because they had trouble making the debt
payments on the Mollison Elms property, the parties decided to transfer their respective
interests in the property to Anil Indulkar’s pension plan. As part of the transaction, the
Kauras deeded their interest in the property to Anil G. Indulkar Pharmacist, a
professional corporation. The senior lender then foreclosed its deed of trust securing the
debt.
              The parties formed East Desert, a Nevada corporation, to purchase
Mollison Elms back from the lender. The pension plans of the Indulkars and the Kauras
provided the funds for East Desert to make the purchase. The 1995 tax return for East
Desert showed that four Indulkar retirement trust interests collectively owned 15.004




1            From time to time, we identify the parties by their first names for ease of
reference. We mean no disrespect. (In re Marriage of Balcof (2006) 141 Cal.App.4th
1509, 1513, fn.2.)

                                             3
percent of the company and four Kaura retirement trust interests collectively owned
15.162 percent of the company.2
              While the Indulkars were in India for an extended period of time, the
Kauras started taking control of East Desert. Indeed, the 2003 East Desert tax return that
showed Rita Kalra, a Kaura family friend, owned 49.834 percent and the Kauras’
daughter, Samantha, then owned 20 percent. This was so even though Samantha did not
contribute any capital for her shares.
              “Unbeknownst to the Indulkars, [Attorney] DePhillips initiated a complaint
against the Kauras on September 10, 2004, in San Diego.” In either September or
October that year, Anil Indulkar returned to the United States in connection with his
pharmacy business. After Anil returned to the United States, the police in India picked
up Gouri and took her to the police station, where she was held for questioning for nine
hours. She was not released until she signed a confession admitting charges in a criminal
complaint brought by Veena Kaura. Thereafter, the police called Gouri at home every
day and continued to pick her up and take her to the police station. Veena had bribed the
police commissioner.
              Gouri was calling Anil in the United States every day, crying and telling
him to do whatever he had to do to keep the police from putting her in jail. In January
and February, 2005, Anil met with the Kauras to discuss the matter and Veena threatened
Anil that if he did not agree to her terms, Gouri would be thrown in jail. Anil agreed to


2             The owners were described as: “Anil Indulkar A PC retirement trust FBO
Anil Indulkar” and “Anil Indulkar retirement trust FBO Gouri Indulkar,” both of which
shared one taxpayer identification number; “Anil Indulkar retirement trust FBO Anil
Indulkar” and “Anil Indulkar A PC retirement trust FBO Gouri Indulkar,” both of which
shared a second taxpayer identification number; “Vinod Kaura A PC retirement trust
FBO Vinod Kaura” and “Vinod Kaura A PC retirement trust FBO Veena Kaura,” both of
which shared a third taxpayer identification number; and “Vinod Kaura MD retirement
trust FBO Vinod Kaura” and “Vinod Kaura MD retirement trust FBO Veena Kaura,”
both of which shared a fourth taxpayer identification number.

                                             4
settle the San Diego Action in exchange for a promise that Veena would drop the Indian
criminal complaint. Accordingly, Anil settled the lawsuit for receipt of $5,000.
              Thereafter, East Desert filed a 2004 tax return reflecting the same
ownership interests as previously, except that the 20 percent share previously shown as
belonging to Samantha Kaura was then reflected as belonging to Claire Kaura.
Subsequent tax returns do not reflect any Indulkar ownership interest in East Desert.
              In November 2006, East Desert refinanced the loan on the property for $2.6
million, without the consent of the Indulkars. The Indulkars did not receive any share of
the loan proceeds or an accounting of profits.
              In January 2007, the Indulkars demanded the issuance of shares in East
Desert to reflect their ownership interest and also demanded an accounting. On April 25,
2008, Anil Indulkar, in his capacity as trustee of each of the four retirement trust
interests, filed the Present Action.
              As noted previously, respondents filed two motions for judgment on the
pleadings and/or nonsuit. One was based on the defense of res judicata and the other was
based on the defense of the statute of limitations. Those two defenses had been
bifurcated. The court granted both motions, on the respective grounds of res judicata and
the statute of limitations, and entered judgment in favor of respondents. In its judgment
the court stated appellant “could and should have litigated any claims he had in the San
Diego action” and “any such claims were long barred by the statute of limitations.”
                                              II
                                       DISCUSSION
A. Standard of Review:
              “‘The purpose of Code of Civil Procedure section 631.8 is “to enable the
court, when it finds at the completion of plaintiff’s case that the evidence does not justify
requiring the defense to produce evidence, to weigh evidence and make findings of fact.”
[Citation.] Under the statute, a court acting as trier of fact may enter judgment in favor of

                                              5
the defendant if the court concludes that the plaintiff failed to sustain its burden of proof.
[Citation.] In making the ruling, the trial court assesses witness credibility and resolves
conflicts in the evidence. [Citations.] [¶] On appeal, we view the evidence in the light
most favorable to the judgment, and are bound by trial courts’ findings that are supported
by substantial evidence. [Citation.] But, we are not bound by a trial court’s
interpretation of the law and independently review the application of the law to
undisputed facts. [Citation.]’ [Citation.]” (Kinney v. Overton (2007) 153 Cal.App.4th
482, 487.)


B. Res Judicata:
              (1) General principle—
              “‘Res judicata, or claim preclusion, prevents relitigation of the same cause
of action in a second suit between the same parties . . . .’” (Estate of Redfield (2011) 193
Cal.App.4th 1526, 1534.) It bars “‘not only . . . issues that were actually litigated but also
issues that could have been litigated.’ [Citation.]” (Planning & Conservation League v.
Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.) “Application of the
doctrine of res judicata requires an affirmative answer to the following three questions:
(1) Was there a final judgment on the merits? (2) Was the issue decided in the prior
adjudication identical with the one presented in the subsequent litigation? (3) Was the
party against whom the principle is involved a party . . . to the prior adjudication?
[Citation.]” (Estate of Redfield, supra, 193 Cal.App.4th at p.1534.)
              Appellant concedes there was a final judgment on the merits in the San
Diego Action. However, he maintains that the issues determined in the San Diego Action
were not identical to the ones raised in the Present Action and that the party against
whom the principle of res judicata is being applied in the Present Action was not
involved in the San Diego Action. We disagree, for reasons we shall show.



                                              6
              (2) Same issue—
                             (a) comparison of primary rights
              As appellant observes, the San Diego Action asserted causes of action for
the imposition of constructive and resulting trusts, partition, quiet title, declaratory relief,
dissolution of East Desert, fraud, and conversion. In the Present Action, the causes of
action are for breach of fiduciary duty, constructive fraud, breach of contract, declaratory
relief and the issuance of corporate shares. Appellant maintains that, given the different
causes of action raised in the two lawsuits, the second prong of the res judicata test is not
met and the doctrine should not be applied. Not so.
              “To determine whether two proceedings involve identical causes of action
for purposes of claim preclusion, California courts have ‘consistently applied the
“primary rights” theory.’ [Citation.]” (Boeken v. Philip Morris USA, Inc. (2010) 48
Cal.4th 788, 797.) “‘In California the phrase “cause of action” is often used
indiscriminately . . . to mean counts which state [according to different legal theories] the
same cause of action . . . .’ [Citation.] But for purposes of applying the doctrine of res
judicata, the phrase ‘cause of action’ has a more precise meaning: The cause of action is
the right to obtain redress for a harm suffered, regardless of the specific remedy sought or
the legal theory (common law or statutory) advanced. [Citations.]” (Id. at p. 798.)
              Yet in making his argument, appellant focuses on the legal theories
asserted. He loses sight of the primary rights at stake.
              In the San Diego Action, the Indulkars asserted there was an oral agreement
to form East Desert and to allocate to them a 50 percent ownership interest in the
company. They further alleged that East Desert acquired the Mollison Elms property in
1994. The Indulkars repeatedly alleged that, notwithstanding the agreement, they had
“never been issued the agreed upon stock in Defendant EAST DESERT,” they had been
denied access to the books and records of East Desert, and they had been denied their 50
percent share of the profits of East Desert and of the Mollison Elms property. In

                                               7
addition, the Indulkars alleged that $2.4 million in equity was drained off the Mollison
Elms property when East Desert took out a loan in that amount, but that they were denied
their share of that equity, that is, their share of the loan proceeds.   Via the San Diego
Action, the Indulkars sought to secure for themselves their respective interests in East
Desert and the Mollison Elms property. More particularly, they sought a dissolution of
East Desert, together with an accounting and a division of corporate assets, and the
receipt of their 50 percent share in the Mollison Elms property.
              The primary rights at stake in the action before us are the same. In the first
amended complaint, appellant asserts that the parties’ intent was for the Indulkar trusts to
own 49.738 percent of East Desert and for the Kaura trusts to own 50.262 percent. He
further alleges that East Desert acquired the Mollison Elms property in 1994, and in
2004, obtained a $2.4 million loan on the property. Appellant also asserts that the loan
proceeds were used to acquire another property, title to which was not taken in the name
of East Desert.
              In addition, appellant asserts that he has not received his East Desert share
certificate, and seeks the issuance of the same. He further alleges that respondents
breached their fiduciary duties by refusing access to the books and records of East Desert
and refusing to account to him. He claims respondents engaged in constructive fraud in
denying him his rights to East Desert and East Desert’s interest in the Mollison Elms
property, and his right to a return on his investment. Inasmuch as the parties agreed to
“nearly equal” ownership of East Desert, appellant characterizes respondents’ failure to
afford him the benefits of that ownership as a breach of contract. He seeks declaratory
relief regarding the parties’ rights and interests in the Mollison Elms property and “the
effect of the various instruments relating to the Property.”
              In short, both lawsuits were predicated on the same basic facts: (1) an
agreement to form East Desert with an approximately 50/50 ownership interests; (2) the
purchase of Mollison Elms by East Desert; (3) the failure to issue stock certificates to

                                               8
appellant representing his ownership interest in East Desert; (4) the failure to provide
appellant with any profits of either East Desert or Mollison Elms; and (5) the failure to
distribute any of the equity from the $2.4 million refinance to appellant. The primary
rights at issue in each action were the rights to the ownership interests in East Desert and
Mollison Elms, and the rights to profits or equity therefrom, including equity withdrawn
from Mollison Elms via the refinance.
              Appellant could recast his causes of action ad infinitum, but the primary
rights at stake in both actions would still be the same. Indeed, appellant acknowledges
that “the nucleus of facts is the same” in each action, but he maintains that because the
causes of action are different, his claims in the Present Action are not barred. He cites
several cases, most notably Agarwal v. Johnson (1979) 25 Cal.3d 932 (disapproved on
another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4) and Branson
v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, in support of his position.
              Agarwal v. Johnson, supra, 25 Cal.3d 932 involved litigation commenced
by a terminated employee. His supervisor had uttered a racial epithet towards him and he
had been informed that he was being terminated because of lack of job knowledge and
lack of cooperation. After his termination, he searched for another job for more than a
year, but was informed that his former employer had given him an unfavorable
recommendation. (Id. at pp. 941-943.) The terminated employee filed two lawsuits
against his former employer. In a federal court action, he asserted both individual and
class claims, for racial discrimination, based on title VII of the Civil Rights Act of 1964
(42 U.S.C. § 2000e et seq.). In a state court action, he asserted causes of action for
defamation, intentional infliction of emotional distress, and interference with business
relations. (Agarwal v. Johnson, supra, 25 Cal.3d at pp. 944, 954-955.)
              Before the state court action was fully resolved, the federal court entered
judgment in favor of the employer in the civil rights case. The employer asserted that the
employee’s claims in the state court action were barred by the doctrine of res judicata.

                                             9
The state court rejected this contention. It observed that the two lawsuits arose out of the
same underlying facts, but that they were based on different primary rights. One lawsuit
was based on the federal statutory right to be free from discriminatory employment
practices. The other lawsuit was based on common law rights to be free from
defamation, intentional infliction of emotional distress, and interference with business
relations. (Agarwal v. Johnson, supra, 25 Cal.3d at pp. 954-955.)
              According to appellant in the Present Action, Agarwal v. Johnson, supra,
25 Cal.3d 932 shows that just because the San Diego Action and the Present Action both
arise out of the same set of underlying facts, that does not mean the causes of action
asserted in the Present Action are barred. However, unlike the plaintiff in Agarwal,
appellant here has not shown that he has both a statutory right to be free from one type of
harm and distinct common law rights to be free from other types of harm. Rather, all of
his causes of action are based on two basic harms suffered: (1) the failure of respondents
to give appellant his share of East Desert and its profits; and (2) the failure of respondents
to give him his share of the profits and equity of Mollison Elms. (See Le Parc
Community Assn. v. Workers’ Comp. Appeals Bd. (2003) 110 Cal.App.4th 1161, 1172-
1173.)
              In Branson v. Sun-Diamond Growers, supra, 24 Cal.App.4th 327, suit was
brought against a corporation, its marketing manager, and certain others. Judgment was
entered against the marketing manager, but not the corporation. (Id. at pp. 332-334.) The
marketing manager brought a motion for indemnification based on Corporations Code
section 317. (Id. at p. 335.) The appellate court held there was no basis for indemnity
under the statute, because the marketing manager was not sued as an agent for the
corporation, but was sued as an individual pursuing his own personal interests. (Id. at p.
337.)
              The marketing manager then filed a separate lawsuit against the
corporation, for breach of oral, written, and implied-in-fact contracts for indemnity, for

                                             10
breach of the duty to indemnify under Labor Code section 2802 and Corporations Code
section 317, for breach of the duty of good faith and fair dealing, and for equitable
estoppel. (Branson v. Sun-Diamond Growers, supra, 24 Cal.App.4th at p. 335.) The
corporation asserted that the lawsuit was barred by the doctrine of res judicata. The
marketing manager conceded that the statutory causes of action were barred, but argued
that the other causes of action were not. (Id. at p. 338.) The court agreed, for several
reasons. (Id. at pp. 343-345.)
              First, it stated: “[T]he primary right to seek authorization for indemnity
under Corporations Code section 317 is not the same cause of action as one for breach of
a contract for indemnity . . . or one asserted under the doctrine of equitable estoppel. The
statute merely accords agents of corporations the right to seek authorization for indemnity
against adverse judgments rendered against them for their reasonable and good faith acts
on behalf of the corporation. Contractual indemnity, in contrast, accords the contracting
party a right to indemnity pursuant to the terms of the contract. Similarly, breach of
[the]implied covenant of good faith and fair dealing gives rise to contract remedies and in
addition, to tort remedies when the breaching party also ‘seeks to shield itself from
liability by denying, in bad faith and without probable cause, that the contract exists.’
[Citations.] [¶] We hold therefore that [the marketing manager’s] application for an order
under Corporations Code section 317 involves a different primary right than those
asserted in these causes of action.” (Branson v. Sun-Diamond Growers, supra, 24
Cal.App.4th at pp. 343-344.)
              Second, the Branson court observed that the marketing manager’s claim for
equitable estoppel and contractual claims were not recoverable on a motion under
Corporations Code section 317 in the first lawsuit. (Branson v. Sun-Diamond Growers,
supra, 24 Cal.App.4th at p. 344.) Third, it said there was “an even more compelling
reason why the determination of the motion under Corporations Code section 317 [was]
not res judicata on the causes of action under examination in the [second] suit . . . .”

                                             11
(Id. at p. 345.) As the court noted, section 317, subdivision (g) specifically provides “that
it does not ‘affect any right to indemnification to which persons other than directors and
officers may be entitled by contract or otherwise.’ [Citation.]” (Ibid, fn. omitted.)
              The matter before us is distinguishable. In the San Diego Action, the
Indulkars sought declaratory relief in the form of a determination that they held a 50
percent ownership interest in East Desert. The Indulkars also sought the dissolution of
East Desert and the winding up of its affairs due to the failure to issue stock and to pay
them 50 percent of the corporate profits. They settled these claims and others for the sum
of $5,000. Thereafter, appellant filed the Present Action rehashing the same injuries and
seeking, inter alia, the issuance of a share certificate for his approximate 50 percent
interest in East Desert and damages for breach of the contract to afford him the benefits
of a near-50 percent interest in East Desert.
              True, after appellant settled the San Diego Action, he found a statute (of
dubious application) on which to base his demand for the issuance of a share certificate—
Corporations Code section 416.3 However, unlike the situation in Branson v. Sun-
Diamond Growers, supra, 24 Cal.App.4th 327, there was no reason why appellant could
not have raised the statute in the first lawsuit—the San Diego Action, which squarely
addressed his right to an ownership interest in East Desert. As we have previously stated,
the doctrine of res judicata bars “‘not only . . . issues that were actually litigated but also




3             Corporations Code section 416, subdivision (a) provides in pertinent part:
“Every holder of shares in a corporation shall be entitled to have a certificate signed in
the name of the corporation . . . , certifying the number of shares and the class or series of
shares owned by the shareholder. . . .” Section 416, subdivision (b) continues:
“Notwithstanding subdivision (a), a corporation may adopt a system of issuance,
recordation and transfer of its shares by electronic or other means not involving any
issuance of certificates . . . .” Query how that statute is even applicable to East Desert—a
Nevada corporation. (See Corp. Code, §§ 102, subd. (a) [California General Corporation
Law applies to certain domestic corporations], 167 [definition of domestic corporation].)

                                                12
issues that could have been litigated.’ [Citation.]” (Planning & Conservation League v.
Castaic Lake Water Agency, supra, 180 Cal.App.4th at p. 226.)
              And again, it has been observed: “‘As far as its content is concerned,
the primary right is simply the plaintiff’s right to be free from the particular injury
suffered. . . . It must therefore be distinguished from the legal theory on which liability
for that injury is premised: “Even where there are multiple legal theories upon which
recovery might be predicated, one injury gives rise to only one claim for relief.” . . . The
primary right must also be distinguished from the remedy sought . . . .’ [Citations.]”
(Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 577.)
              With regard to East Desert, the injury was the failure to issue stock
certificates documenting appellant’s interests in the corporation and to distribute his share
of the corporate profits. That injury was expressly described in the complaint in the San
Diego Action. In that action, the Indulkars sought the remedies of declaratory relief and
dissolution. In the Present Action, appellant has come up with another remedy with
respect to the same injury—an order compelling issuance of the certificates. He doesn’t
get a second bite of the apple just because he thought of a new remedy.
                             (b) scope of settlement agreement
              Interestingly, appellant claims that the settlement agreement did not
encompass his claims to East Desert, that he only released his claims to its property—
Mollison Elms. He does not explain what value an interest in East Desert would have if
it excluded the right to receive profits from Mollison Elms.
              Anyway, we observe that the settlement agreement contains several
descriptions of the matters released. Paragraph D of the recitals states: “The parties now
wish to resolve all claims alleged in the [San Diego] Action by the dismissal of the
Action as to all parties, with prejudice . . . .” Similarly, paragraph No. 1 of the operative
provisions says: “Kaura has paid to Indulkar the total sum of $5,000.00 in full
satisfaction of all claims by Indulkar against them relating to the facts alleged.” The

                                              13
language of these two paragraphs is plain enough, broadly encompassing both claims to
East Desert and claims to Mollison Elms, inasmuch as claims to each were raised in the
San Diego Action.
              Appellant, however, emphasizes another portion of the settlement
agreement, which he says shows a contrary intention. Paragraph No. 2 of the operative
provisions states: “Except for the obligations of Kaura, Kalra and East Desert contained
in this Settlement Agreement, in any other settlement agreement between the parties and
any other agreement between the parties . . . , Indulkar does hereby . . . release and
forever discharge Kaura, Kalra and East Desert, . . . from any and all . . . claims of every
kind . . . based in whole or in part on any act or omission by Kaura, Kalra and/or East
Desert, which only relate to the claims asserted in the action as they pertain to the
Mollison Elms Property and the Courtyard Villas Property.”
              According to appellant, this means that, contrary to the plain language of
paragraph D and paragraph No. 1, he did not release his claims to East Desert. Rather, he
only released his claims to the property it owned, Mollison Elms, as well as to a different
property. Under this interpretation, he sought to gut the settlement agreement by saying
in two paragraphs that all claims were resolved, which would include claims to both East
Desert and Mollison Elms, and in a third paragraph that he retained a claim to the profits
of Mollison Elms, by way of a claim to its owner—East Desert. However, we can give
effect to all provisions of the settlement agreement by construing the language of
paragraph No. 2 to mean that the Indulkars released all claims to East Desert and the
property it owned, but retained claims relating to other properties the parties owned that
were not mentioned in the settlement agreement, such as their water park in India.
              This interpretation is supported by the following language from paragraph
No. 6 of the settlement agreement, which provides: “Nothing contained in this
Settlement Agreement shall be construed to operate as a release . . . of any claims . . .
Indulkar may have against Kaura, Kalra, East Desert or any third party for any liability

                                             14
. . . which may be asserted against Indulkar . . . which relates in any way to acts or
omissions of any person regarding the operation . . . of the Mollison Elms Property . . .
after the release by Indulkar of their interest in the Mollison Elms Property and their
interest in East Desert.” (Italics added.) This language plainly shows the Indulkars
intended to release both their claims to the Mollison Elms property and their claims to its
owner, East Desert.
              Appellant insists this is not true, because the 2004 tax return of East Desert,
which was filed in 2005, after the date of the settlement agreement, showed that appellant
owned an interest in East Desert in 2004. Yes, but the settlement agreement, by which
the Indulkars released their interest in East Desert, was signed in 2005. So, while they
owned an interest in East Desert in 2004, as reflected on the 2004 tax return, they
released that interest in 2005 in exchange for the sum of $5,000. Although appellant
maintains that the release was made under duress, he did not, as the trial court observed,
seek to rescind the settlement agreement because of that duress.
                             (c) subsequent facts
              “As a cause of action is framed by the facts in existence when the
underlying complaint is filed, res judicata ‘is not a bar to claims that arise after the initial
complaint is filed.’ [Citations.]” (Planning & Conservation League v. Castaic Lake
Water Agency, supra, 180 Cal.App.4th at p. 227.) Appellant maintains that not all of the
same primary rights were at stake in the San Diego Action, because some of them did not
arise until after the date the settlement agreement was signed. He offers two examples.
First, he mentions the 2004 tax return. He says that it shows that respondents, after the
time of the settlement, acknowledged that he owned an interest in East Desert. To the
contrary, it only shows that appellant owned an interest in East Desert in 2004, before the
date of the settlement.
              Second, appellant says the Mollison Elms property was refinanced for $2.6
million in 2006, after the date of the settlement, and that he did not receive his share of

                                               15
the loan proceeds, or equity from the property. It does not matter that the $2.6 million
refinance took place in 2006. Appellant had already unequivocally and forever released
his interests in the Mollison Elms property via the settlement agreement. Any claim
derived from the ownership of the Mollison Elms property is res judicata.4
               (3) Privity—
               “The concept of privity for the purposes of res judicata or collateral
estoppel refers ‘to a mutual or successive relationship to the same rights of property, or to
such an identification in interest of one person with another as to represent the same legal
rights [citations] and, more recently, 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 application of the doctrine of collateral estoppel. [Citations.]’ [Citations.] ‘“This
requirement of identity of parties or privity is a requirement of due process of law.”
[Citation.] “Due process requires that the nonparty have had an identity or community of
interest with, and adequate representation by, the . . . party in the first action.
[Citations.]”’” (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60
Cal.App.4th 1053, 1069-1070.) “A party is adequately represented for purposes of the
privity rule ‘if his or her interests are so similar to a party’s interest that the latter was the
former’s virtual representative in the earlier action. [Citation.]’ [Citation.] We measure
the adequacy of ‘representation by inference, examining whether the . . . party in the suit
which is asserted to have a preclusive effect had the same interest as the party to be
precluded, and whether that . . . party had a strong motive to assert that interest.’” (Id. at
pp. 1070-1071.)




4             As an aside, we observe that the first amended complaint in the Present
Action makes no mention of the $2.6 million refinance that took place in 2006 and,
obviously, seeks no relief based upon it. It attacks only the $2.4 million refinance that
took place in 2004 and was previously raised in the San Diego Action.

                                                16
              Appellant says privity is lacking between the plaintiffs in the San Diego
Action and the plaintiffs in the Present Action, for two reasons: (1) in the San Diego
Action, the Indulkars sued in their individual capacities whereas in the Present Action
Anil Indulkar is suing as trustee of four retirement trusts for the benefit of himself and
Gouri; and (2) the Indulkars were under duress when they settled the San Diego Action.
We start with the issue of capacity.
                             (a) capacity
              The fact that Anil Indulkar did not identify himself as trustee in the San
Diego Action is not determinative of the privity issue. This is because “‘. . . it is
unnecessary for the trustee in the pleadings . . . to describe himself as trustee. He can
proceed in the action as though he were the owner of the claim which he is enforcing. If
he does describe himself as trustee the description is treated as surplusage. . . .’ It was
not necessary for the plaintiff to describe himself as trustee.” (McKoin v. Rosefelt (1944)
66 Cal.App.2d 757, 769.) In other words, “the [Indulkars] could maintain an action in
their own name, i.e., without mentioning the trust. [Citation.]” (Hassoldt v. Patrick
Media Group, Inc. (2000) 84 Cal.App.4th 153, 171, disapproved on another ground in
People v. Rogers (2013) 57 Cal.4th 296, 330-331.)
              Thus, in the San Diego Action, Anil Indulkar could have enforced the
trusts’ rights with respect to both East Desert and the Mollison Elms property it owned
even though he had not mentioned the fact that he was trustee of the trusts. Moreover,
the Indulkars as individuals and as beneficiaries of the trusts had as strong an interest as
Anil as trustee in asserting those rights. Consequently, there was no lack of privity.
(Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn., supra, 60 Cal.App.4th at pp.
1069-1071.) Were the rule otherwise, a person could always file one lawsuit without
mentioning his or her status as trustee, obtain a settlement, and then file an additional
lawsuit in his or her capacity as trustee, seeking more.



                                              17
                             (b) duress
              Appellant nonetheless maintains there was no privity, because he and Gouri
Indulkar settled the San Diego Action under duress. He cites Planning & Conservation
League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th 210 in support of his
position. In that case, Friends of the Santa Clara River (Friends), a nonprofit
organization, filed an action challenging an environmental impact report (EIR) certified
in 1999. (Id. at pp. 221, 224.) The appellate court directed the issuance of a writ
vacating the certification of the EIR. It further directed the trial court to retain
jurisdiction over the matter until a legally compliant EIR was certified. (Id. at p. 221.)
After a second EIR was certified in 2004, the Planning and Conservation League (PCL)
and the California Water Impact Network (CWIN) filed separate actions, challenging the
2004 EIR. (Id. at pp. 218, 224.)
              Friends then dismissed its action with prejudice. When doing so, Friends
explained that while it believed that the 2004 EIR did not comply with either the writ or
the law, it chose not to pursue a challenge to the 2004 EIR because of monetary
constraints. The entity that had certified the EIR’s filed demurrers in the consolidated
actions brought by PCL and CWIN, claiming the actions were barred by the doctrine of
res judicata. (Planning & Conservation League v. Castaic Lake Water Agency, supra,
180 Cal.App.4th at pp. 222, 224.) The trial court overruled the demurrers, having
concluded that the doctrine of res judicata did not apply, inasmuch as PCL and CWIN
were not in privity with Friends. (Id. at pp. 224, 226.)
               In addressing the issue of privity, the appellate court stated: “As Friends
undertook its action on behalf of the public, the key question regarding privity is whether
Friends adequately acted as appellants’ ‘“virtual representative”’ [Citation.]” (Planning
& Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at p.
230.) In determining “whether Friends asserted the common interest with adequate
vigor,” the court considered, inter alia, “the manner in which Friends conducted and

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resolved its action.” (Ibid.) It stated that “when a party’s conduct in an action shows a
lack of incentive or resources to litigate a common interest . . . privity is not established.
[Citation.]” (Id. at p. 231.) It observed that “. . . Friends terminated its action through a
voluntary dismissal, not through a settlement.” (Ibid.) The court further observed that
Friends thought the 2004 EIR was defective, but lacked the resources to challenge it.
Under the circumstances, the court could not infer that the parties were in privity. (Ibid.)
              At the same time, the appellate court noted that there was an issue whether
Friends, PCL and CWIN had colluded in forum shopping. It said that the pleadings and
judicially noticed facts gave rise to conflicting inferences about Friends’ motive for
dismissal, and that the trial court had not resolved the conflict, which could not be
resolved on demurrer. (Planning & Conservation League v. Castaic Lake Water Agency,
supra, 180 Cal.App.4th at pp. 231-232.) The court declined to make the factual
resolution for the first time on appeal. (Id. at p. 232.) In short, it concluded that the trial
court had properly overruled the demurrers. (Id. at p. 233.)
              Skipping over the portions of Planning & Conservation League v. Castaic
Lake Water Agency, supra, 180 Cal.App.4th 210 about the lack of a settlement and
possible collusion, appellant in the Present Action emphasizes the portion of the case
having to do with vigorous representation. Anil Indulkar as trustee, appearing in the
Present Action, says that he and Gouri Indulkar, appearing in their individual capacities
in the San Diego Action, dropped that lawsuit because of duress. Therefore, he reasons,
they as individuals, in furtherance of their interests in East Desert and the Mollison Elms
property, did not provide Anil Indulkar as trustee, with adequate representation in the San
Diego Action. Consequently, he says, privity is lacking.
              This overlooks the facts that Anil Indulkar was representing not only his
own interests but also the trusts’ interests in the San Diego Action whether he identified
himself as trustee or not, that he should have resolved in that action all claims that could
have been resolved based on the scenario in question, and that the duress would have

                                              19
been inflicted on him equally in his individual capacity and in his capacity as trustee.
(Hassoldt v. Patrick Media Group, Inc., supra, 84 Cal.App.4th at p. 171; McKoin v.
Rosefelt, supra, 66 Cal.App.2d at p. 769; Planning & Conservation League v. Castaic
Lake Water Agency, supra, 180 Cal.App.4th at p. 226.) Focusing for a moment
exclusively on Anil Indulkar in his undisclosed capacity as trustee, if he settled the San
Diego Action under duress, he could have sought to rescind the settlement. However, as
the trial court in the Present Action observed, the Present Action does not include a cause
of action for rescission based on duress, and does not contain an offer to return the
settlement funds in exchange for rescission of the settlement agreement.


C. Attorney Fees:
              Appellant argues the court erred in awarding in attorney fees to respondents
based on an attorney fees clause contained in the settlement agreement. The record on
appeal does not contain a copy of the order in question. Appellant explains that the order
“was entered after [he] designated this record, but the register of actions contains the
applicable minute order.”
              A review of the record shows that the judgment in this matter was entered
on December 6, 2012. The notice of entry of judgment was served on January 2, 2013.
Respondents filed a motion for attorney fees 14 days later. The motion was denied by
minute order on February 19, 2013. Thereafter, on February 28, 2013, appellant filed a
notice of appeal from the judgment.
              After appellant filed his notice of appeal, respondents, on March 1, 2013,
filed a motion for reconsideration of their attorney fees motion. The register of actions
reflects that the court ruled on the motion on April 11, 2013, about six weeks after the
notice of appeal from the judgment was filed.
              The notice of appeal in this matter was directed to the judgment. The
postjudgment order awarding attorney fees was separately appealable. Any challenge to

                                             20
that award required the filing of a separate notice of appeal. This court has no
jurisdiction to entertain a challenge to the attorney fees award. (Golightly v. Molina
(2014) 229 Cal.App.4th 1501, 1519-1521.)
              Even if that were not the case, we would not consider appellant’s argument.
As appellant himself points out, no copy of the order awarding attorney fees is contained
in the record on appeal. Although the register of actions shows that the court ultimately
ruled in favor of respondents on their motion for reconsideration and their request for
attorney fees, it also shows that the court ordered the preparation of a formal order. The
record on appeal does not contain a copy of a formal written order and the register of
actions does not even indicate whether such an order was ever filed. (See Walton v.
Mueller (2009) 180 Cal.App.4th 161, 167 [appeal must be taken from formal written
order where court directed one to be prepared].) It is the burden of the appellant to
provide an adequate record for review and he has failed to do so here. (Oliveira v.
Kiesler (2012) 206 Cal.App.4th 1349, 1362.)
              As a separate matter, we notice that respondents, in the conclusion to their
brief, request attorney fees on appeal. We decline to consider their request due to their
failure to comply with the California Rules of Court requiring noticed motions (Cal.
Rules of Court, rules 3.1702(c), 8.54(a)) and separate topic headings (Cal. Rules of
Court, rule 8.204(a)(1)(B); Conservatorship of Hume (2006) 139 Cal.App.4th 393, 395,
fn. 2). We do so without prejudice to their filing a proper motion in the trial court. (Cal.
Rules of Court, rule 3.1702(c).)


D. Appellate Procedure:
              In concluding our opinion, we must admonish counsel for both parties for
their failure to adhere to appellate procedure and the California Rules of Court. In
addition to the points mentioned in our discussion of attorney fees, we observe that each
party to this appeal provides vast expanses of briefing unsupported by record references.

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Moreover, those record references that are provided often span great numbers of pages
without pinpoint page references. This is sanctionable conduct. (Evans v. Centerstone
Development Co. (2005) 134 Cal.App.4th 151, 165-167.) Moreover, we may treat any
point unsupported by pinpoint page references as forfeited. (In re S.C. (2006) 138
Cal.App.4th 396, 406-407.) Ironically, in his reply brief, appellant both recognizes the
inadequacy of respondents’ record references and calls attention to the same, but fails to
recognize that he has provided equally deficient record references. Counsel should
familiarize themselves with the California Rules of Court and comply with the rules of
appellate procedure in the future.
                                            III
                                      DISPOSITION
              The judgment is affirmed. Respondents shall recover their costs on appeal.




                                                  MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




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