Filed 2/25/14 Owens v. Thayer CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



EMERALD OWENS,                                                      D063401

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2011-00094728-
                                                                     CU-PO-CTL)
DOUGLAS B. THAYER et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Affirmed.

         Law Offices of John Belcher and John A. Belcher for Plaintiff and Appellant.

         Durham, Jones & Pinegar, Douglas B. Thayer and Aaron R. Harris, for

Defendants and Respondents Douglas B. Thayer, Marcus Owens, and Hill, Johnson &

Schmutz.

         Konoske Akiyama & Brust, Gregory P. Konoske and D. Amy Akiyama, for

Defendant and Respondent Sandra Hayden.
       Plaintiff Emerald Owens (Emerald)1 appeals a judgment in favor of defendants

Douglas Thayer (Thayer), Sandra Hayden (Sandra), Marcus Owens (Marcus), and Hill

Johnson & Schmutz, PLLC (the Hill firm) following the trial court's order granting

defendants' summary judgment motion. Emerald's complaint alleges causes of action for

elder abuse, financial elder abuse, conversion, intentional and negligent infliction of

emotional distress, imposition of a constructive trust, malicious prosecution, and abuse of

process. These claims arise from an intrafamily dispute involving Emerald's husband

Homer Owens (Homer), now deceased, and his adult children. Emerald alleges that

Homer's adult children kidnapped him and forced him to file a frivolous divorce action to

dissolve his marriage to Emerald. Emerald also alleges that Homer's adult children

drained funds from Homer and Emerald's joint banking accounts and otherwise

mistreated Homer. This intrafamily dispute gave rise to three lawsuits before Emerald

filed the complaint in this action: a California divorce action, a Utah divorce action, and

a Utah conservatorship action.

       The trial court here found the material facts underlying Emerald's allegations in

this lawsuit had already been litigated and determined in the prior Utah state court

conservatorship action which involved Homer. In that action, the Utah court made

numerous factual findings regarding Homer's condition and status. The Utah court

determined that Homer was not kidnapped, was not forced to file for divorce, and was not

otherwise mistreated by his adult children. The Utah court further found that Homer


1       To avoid confusion, we refer to certain parties and other relevant individuals by
their first names.
                                             2
voluntarily chose to file for divorce and move away from Emerald and that he was

competent to make those decisions at the time. Based on these findings, the trial court

here granted summary judgment as to Emerald's complaint because each of her causes of

action depend on the allegations that Homer was kidnapped and forced against his will to

file for divorce from Emerald and give up control of his finances. The trial court further

found Emerald's causes of action were barred by a final stipulation settling Homer's

divorce action, in which Emerald gave up certain rights with respect to Homer and his

assets.

          On appeal, Emerald contends the court erred in applying the collateral estoppel

doctrine to bar her complaint. Emerald also contends the trial court erred in interpreting

the final stipulation as a release of her claims against the defendants named in this action.

Defendants argue that Emerald has shown no error in the court's order granting summary

judgment and that alternative grounds also support the order. We affirm the judgment.

                     FACTUAL AND PROCEDURAL BACKGROUND

          Emerald and Homer were married in 2002. Over the years, Homer developed

severe dementia and other medical conditions that limited his mobility. Emerald cared

for Homer in their home in El Cajon, California. Their marriage appeared happy and

strong. It was the second marriage for both Emerald and Homer; their first marriages

ended with the deaths of their spouses. Emerald and Homer were against divorce on

religious grounds.

          Both Emerald and Homer had adult children from their first marriages. Homer's

children include Marcus and Sandra, both defendants in this action, and Paula Thayer

                                               3
(Paula), wife of defendant Thayer. Emerald had a warm relationship with Homer's

children until the events described herein.

       In 2009, Emerald and Homer met with an attorney and prepared new estate

planning documents. Homer executed a newly-prepared will, which appointed Emerald

executor. A durable power of attorney appointing Emerald as Homer's agent was also

prepared, but the record contains only an unsigned copy of the document.

       Later that year, Emerald went to Hawaii on vacation with her daughter. Emerald

left Homer in the care of two nurses. Sandra traveled from her home in Utah to stay with

Homer as well. Family friends who visited Homer shortly after Emerald left reported

that Homer appeared agitated and upset. They found it hard to communicate with him.

       A few days after leaving for Hawaii, Emerald began to have difficulty reaching

Homer. She then received a call from Thayer. Thayer told Emerald that Homer's

children had a family meeting and that Homer was filing for divorce from Emerald and

moving to Utah. When Emerald asked about Homer's current whereabouts, Thayer told

Emerald it was none of her concern and that she had no say in what happened to Homer

going forward. Emerald was shocked. Within 20 minutes of Thayer's call, Emerald

suffered a debilitating stroke. She was admitted to a hospital in Hawaii, where she

underwent surgery and remained for several weeks.

       While Emerald was in Hawaii, Homer filed a petition for divorce in San Diego

(the California divorce action). (Owens v. Owens (Super. Ct. San Diego County, No. ED-

78325).) The petition was signed by Homer and his California divorce attorney, James



                                              4
Albert. As grounds for dissolution of Homer's marriage, the petition cited irreconcilable

differences. Homer traveled to Utah and began living in a nursing home there.

       In Utah, Homer's mental condition deteriorated. Represented by the Hill firm,

Thayer filed a petition in Utah state court seeking appointment as Homer's conservator

and guardian (the Utah conservatorship action). (Estate of Owens (Utah, Utah County,

4th Dist. Ct., Sept. 10, 2009), Probate No. 093400462.) Thayer alleged that Homer was

incapacitated at times due to dementia and Parkinson's disease and unable to effectively

manage his own property and affairs. In his petition, Thayer argued that Emerald was

disqualified to serve as Homer's conservator and guardian based on her stroke and the

pending divorce proceedings. The Utah conservatorship court granted Thayer's petition

and appointed him as Homer's conservator and guardian.

       Around this time, family friends from California visited Homer in Utah. One

family friend reported that Homer missed Emerald and wanted to see her. According to

this friend, Homer said he did not want to divorce Emerald and that he wanted the

divorce proceedings to stop. Kim Owens, Marcus's wife, wrote in an e-mail to her son

that "[Homer] expressed that this is the right decision . . . to go to a nursing home in

Utah. He said, he'd like Emerald to join him, but when I said 'Dad, she may not want to,

she has her health, her home, friends and ward here[']—he said he was okay with her not

wanting to join him but this was what he needed[]." (Ellipses in original.) Later, Thayer

testified that he was aware Homer still loved Emerald and that Homer sometimes wanted

" 'out' " of his assisted living home.



                                              5
       After the Utah conservatorship court's decision appointing Thayer, Emerald

appeared and challenged the court's order. Emerald alleged that she had not been given

notice of the conservatorship proceeding, as required by Utah law. Emerald filed

motions seeking to vacate Thayer's appointment, appoint a guardian ad litem for Homer,

and obtain certain funds that had been in her joint bank accounts with Homer.2 Emerald

alleged that Homer had been taken from California against his will, forced to file for

divorce from Emerald, and otherwise mistreated by his children and Thayer. Emerald's

medical expert agreed, however, that Homer was incapacitated and not competent to

make decisions for himself at that time.

       The Utah conservatorship court conducted a two-day trial, received testimonial

and written evidence, and issued detailed findings of fact and conclusions of law

regarding Homer's condition and status. Emerald and Thayer were present and

represented by counsel; Homer was represented by court-appointed counsel. The Utah

conservatorship court confirmed Thayer's appointment as Homer's guardian and

conservator, finding that Homer was incapacitated and appointment of a guardian and

conservator was appropriate. The court rejected Emerald's challenge to Thayer's

appointment, finding that Thayer had been validly nominated by Homer as his chosen

guardian and conservator. Homer had also signed papers granting a durable power of

attorney to Thayer. The court further held that Emerald, even if she had been nominated,


2      While Emerald was recovering from her stroke, her family discovered that over
$50,000 had been transferred out of joint bank accounts held by Emerald and Homer.
Emerald was also removed as a beneficiary from Homer's individual retirement account
(IRA), valued at almost $200,000.
                                             6
was not qualified to serve based on her health conditions and her lax attitude towards

Homer's medical care.

      The Utah conservatorship court also concluded the evidence did not support any

mishandling of Homer's guardianship by Thayer or wrongdoing in connection with

Homer's move to Utah. The court stated, "The Court finds that Homer made the

following lucid, knowing decisions: (1) to leave California and move to Utah, (2) to

nominate Mr. Thayer as his agent, guardian, and conservator, and (3) to file for divorce

from Emerald." The court further stated, "This Court can comfortably find that Homer

was competent in July 2009 to make a decision to move to Utah, to make a decision to

nominate Mr. Thayer as his guardian, conservator, and agent, and to make a decision to

divorce Emerald." The Utah conservatorship court based its decision in part on the

testimony of two individuals: Homer's treating physician who performed an examination

of Homer around the time of his divorce filing, and a notary public who witnessed Homer

sign his advance health care directive and other documents around the same time. The

court further found that Homer and Emerald's funds were comingled in one joint bank

account and ordered that approximately $18,000 be returned to Emerald.

      In its findings, the Utah conservatorship court reserved two questions: whether

Thayer could continue a divorce action on Homer's behalf and whether Thayer could

disinherit Emerald. The court conducted additional proceedings to resolve these issues.

The court visited Homer and observed Homer's responses to questions posed by his

court-appointed attorney, William Jeffs. Thereafter, the court issued supplemental

findings of fact and conclusions of law on the reserved issues. The court noted, "Homer

                                            7
was able to communicate with Mr. Jeffs, although the communication was not a

continuing stream of conscious thought." The court reaffirmed Thayer's appointment as

guardian and conservator for Homer and specifically found that Thayer's authority

included the ability to proceed with Homer's divorce action. However, the court found

Thayer did not have the authority under Utah law to make a will for Homer and disinherit

Emerald.

       Although Homer initially filed for divorce in California, Homer dismissed his

California petition without prejudice, and with Emerald's consent, after approximately a

year of litigation. Homer, through his conservator Thayer, then filed a new petition for

divorce in Utah on the same day that the California petition was dismissed. (Owens v.

Owens (Utah, Utah County, 4th Dist. Ct., filed Aug. 26, 2010) No. 104402029).) The

Utah divorce action was filed in the same court as the Utah conservatorship action, but

the actions were assigned to different judges and were not consolidated.

       The Utah divorce action ended in a final stipulation between Emerald and Thayer,

acting as Homer's guardian. Under the terms of the stipulation, Emerald and Homer

remained married, but Emerald waived any claim to Homer's estate and any right to

manage Homer's care or person. In exchange, Emerald retained her home in California,

including all monies that Homer contributed to it, and $10,000 from their joint checking

accounts. A number of other assets, including the disputed IRA, were retained by

Homer. Homer and Emerald further "waive[d] any rights they may have at this time with

respect to any other financial accounts not mentioned in the Final Stipulation, if

any . . . that are in the names of the other party, and/or are . . . jointly in the names of

                                                8
Emerald and/or Homer." The parties agreed that Emerald "will not make any claims,

now or in the future, against the Guardian/Conservator in the Conservator action filed in

Utah" and that "[n]either Homer Owens nor his Conservator shall make any claim against

Emerald or her estate, whether known or unknown, past, present or future." Finally,

Emerald agreed to withdraw her appeal of the Utah conservatorship court's order

confirming Thayer's appointment as Homer's guardian and conservator. The stipulation

was filed in the Utah divorce action, prompting the Utah divorce court to dismiss that

action with prejudice. It was also filed in the Utah conservatorship action.

       Approximately four months after the stipulation was signed, Emerald filed this

action in San Diego County Superior Court. Emerald's complaint contains causes of

action for elder abuse, financial elder abuse, conversion, intentional and negligent

infliction of emotional distress, and imposition of a constructive trust based on

allegations that Homer's children (with the involvement of Homer's California divorce

lawyer, James Albert, and Thayer's then law firm, the Hill firm) kidnapped Homer,

forced him to file for divorce, moved him to Utah against his will, and wrongfully

diverted funds from the couple's joint bank accounts. As a result, Emerald contends she

suffered physical, emotional, and financial harm.

       Emerald also alleged causes of action for malicious prosecution and abuse of

process based on Homer's California and Utah divorce petitions, which Emerald contends

contain false and fraudulent representations. These allegedly false representations

include the statements that Emerald and Homer were separated following her departure

for Hawaii and that there were irreconcilable differences in their marriage. Emerald

                                             9
further alleged two causes of action for elder abuse and financial elder abuse on Homer's

behalf, based on similar allegations of kidnapping, forced filing of divorce, and diversion

of funds that Emerald had alleged as the basis of the causes of action on her own behalf.

Homer passed away while the proceedings below were pending.

       During this litigation, Emerald dismissed Homer's California divorce lawyer,

James Albert, and one of Homer's children, Paula Thayer, from the case. The remaining

defendants, who are all parties to this appeal, filed a motion for summary judgment or, in

the alternative, summary adjudication on all of Emerald's claims. The defendants argued

that Emerald's claims were barred by collateral estoppel based on the Utah

conservatorship court's findings of fact. The defendants further argued that Emerald had

waived her claims based on her joint bank accounts with Homer as part of the final

stipulation in the Utah divorce action, that Emerald could not assert elder abuse claims on

Homer's behalf, and that Emerald otherwise could not establish the factual allegations

underlying her claims. Emerald opposed the motion, arguing collateral estoppel was

inapplicable, the releases contained in the final stipulation did not extend to the

defendants, and Emerald had standing to sue on Homer's behalf.

       After considering the parties' papers, the trial court ordered supplemental briefing

on two issues: (1) the collateral estoppel effect of the Utah conservatorship court's

finding that Homer was competent and (2) the theory of causation applicable to Emerald's

emotional distress damages. In response, defendants argued that the Utah

conservatorship court's finding that Homer was competent foreclosed all of Emerald's

claims because they rely upon the essential allegation that Homer was kidnapped and

                                             10
forced against his will to divorce Emerald, move to Utah, and close the couple's joint

accounts. Defendants also argued there was no causal link between closing the couple's

accounts and Emerald's emotional distress claims.

       Emerald countered that collateral estoppel was inappropriate because the Utah

court's findings were made in the context of a conservatorship action, where Emerald

could not seek personal injury damages. Emerald also argued that collateral estoppel

could not foreclose Emerald's malicious prosecution action because the Utah

conservatorship court's findings apply, if at all, only to Homer's decision to initiate the

divorce and not to maintain it. Emerald also argued that defendants concealed critical

evidence from the Utah conservatorship court, rendering a finding of collateral estoppel

inequitable. Regarding her emotional distress damages, Emerald argued that a jury could

reasonably infer Homer's alleged kidnapping caused Emerald severe emotional distress,

which Emerald contended was manifested by a stroke. Emerald did not reference any

direct evidence that her stroke was caused by Homer's kidnapping or any actions of the

defendants.

       The trial court granted defendants' summary judgment motion. The court stated

three alternative grounds. First, the court found collateral estoppel foreclosed all of

Emerald's claims: "All of plaintiff's claims against the defendants are premised on the

fact that Homer was allegedly kidnapped from California against his will, and that he was

allegedly forced to file for divorce from plaintiff and close the couple's bank accounts.

The Utah [conservatorship] court's order that Homer was competent, made during

proceedings when plaintiff was present and represented by counsel, requires that

                                              11
plaintiff's claims fail." Second, the court found that "Plaintiff waived any rights with

regard to Homer Owens when she entered into the stipulated settlement agreement[,]"

and thus all of Emerald's claims were barred for that reason as well. Third, the court

found that summary adjudication was proper on the elder abuse claims that Emerald

brought on Homer's behalf because Emerald lacked standing to bring these claims. The

court entered judgment accordingly, and Emerald appeals.3

                                       DISCUSSION

                                              I

       "A defendant's motion for summary judgment should be granted if no triable issue

exists as to any material fact and the defendant is entitled to a judgment as a matter of

law. [Citation.] The burden of persuasion remains with the party moving for summary

judgment. [Citation.] When the defendant moves for summary judgment, in those

circumstances in which the plaintiff would have the burden of proof by a preponderance

of the evidence, the defendant must present evidence that would preclude a reasonable

trier of fact from finding that it was more likely than not that the material fact was true



3      Emerald's complaint at issue here spawned additional litigation in Utah. As
discussed ante, Emerald bases her complaint in part on wrongdoing related to the joint
bank accounts held by her and Homer. Because the final stipulation settling Homer's
divorce action addresses Emerald's rights to those same accounts, Thayer filed an action
on Homer's behalf in Utah alleging that Emerald breached that stipulation by filing her
complaint. Emerald removed the new Utah action to federal court, which found that
Emerald had breached the stipulation and entered partial summary judgment in Thayer's
favor. However, despite Thayer's apparent request, the Utah federal court declined to
allow Thayer to pursue an injunction against Emerald's complaint here "based on the
principles of comity and the provisions of the Federal Anti-Injunction Act[.]" (Thayer v.
Owens (D. Utah, Nov. 29, 2012, No. 2:12-CV-00170-DS).)
                                              12
[citation], or the defendant must establish that an element of the claim cannot be

established, by presenting evidence that the plaintiff 'does not possess and cannot

reasonably obtain, needed evidence.' [Citation.]" (Kahn v. East Side Union High School

Dist. (2003) 31 Cal.4th 990, 1002-1003.)

       If the defendant "carries his burden of production, he causes a shift, and the

opposing party is then subjected to a burden of production of his own to make a prima

facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 850.) "The plaintiff . . . may not rely upon the mere

allegations or denials of its pleadings to show that a triable issue of material fact exists,

but, instead, shall set forth the specific facts showing that a triable issue of material fact

exists as to that cause of action. . . ." (Code Civ. Proc., § 437c, subd. (p)(2).)

       "We review the record and the determination of the trial court de novo.

[Citation.]" (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1003.)

"In performing our de novo review, we must view the evidence in a light favorable to

plaintiff as the losing party [citation], liberally construing [the plaintiff's] evidentiary

submission while strictly scrutinizing defendants' own showing, and resolving any

evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400

(2001) 25 Cal.4th 763, 768.)

       "Although our review of a summary judgment is de novo, it is limited to issues

which have been adequately raised and supported in plaintiff['s] brief. [Citations.] Issues

not raised in an appellant's brief are deemed waived or abandoned. [Citation.]" (Reyes v.

Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) Accordingly, the judgment of the trial

                                               13
court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

It is the appellant who bears the burden of overcoming that presumption and

affirmatively showing error. (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428,

1458.)

                                               II

         Emerald contends the trial court erred in applying collateral estoppel, based on the

Utah conservatorship court's findings of fact, to bar all of the causes of action in her

complaint. We conclude that, with the exception of Emerald's malicious prosecution

claim, collateral estoppel bars all of Emerald's causes of action. For her malicious

prosecution cause of action, we need not assess the application of collateral estoppel

because, as discussed in Part III, Emerald cannot establish an essential element of that

cause of action.

         "Collateral estoppel precludes relitigation of issues argued and decided in prior

proceedings." (Lucindo v. Superior Court (1990) 51 Cal.3d 335, 341.) " 'Traditionally,

we have applied the doctrine only if several threshold requirements are fulfilled. First,

the issue sought to be precluded from relitigation must be identical to that decided in a

former proceeding. Second, this issue must have been actually litigated in the former

proceeding. Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits. Finally,

the party against whom preclusion is sought must be the same as, or in privity with, the

party to the former proceeding. [Citations.]' [Citation.]" (Hernandez v. City of Pomona

(2009) 46 Cal.4th 501, 511.)

                                              14
       "The doctrine 'rests upon the ground that the party to be affected, or some other

with whom he is in privity, has litigated, or had an opportunity to litigate the same matter

in a former action in a court of competent jurisdiction, and should not be permitted to

litigate it again to the harassment and vexation of his opponent. Public policy and the

interest of litigants alike require that there be an end to litigation.' [Citations.]" (Rodgers

v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 89-90.)

                                              A

       Emerald argues that collateral estoppel is inappropriate here because the Utah

conservatorship court's findings of fact regarding Homer's desire for a divorce were not

necessarily decided in the Utah conservatorship proceedings. (See Hernandez v. City of

Pomona, supra, 46 Cal.4th at p. 511.) Emerald points to the language of the final

stipulation settling Homer's divorce action, that "the parties will remain married," and

contends that language contradicts the Utah conservatorship court's factual finding that

Homer desired a divorce. Thus, Emerald argues, the Utah conservatorship court's factual

findings were not necessary to the final stipulation that ended Homer's divorce action.

       " 'In order for the determination of an issue to be given preclusive effect, it must

have been necessary to a judgment. This requirement "prevent[s] the incidental or

collateral determination of a nonessential issue from precluding reconsideration of that

issue in later litigation." [Citation.]' " (McMillin Development, Inc. v. Home Buyers

Warranty (1998) 68 Cal.App.4th 896, 906.) The scope of necessity, however, is broad.

An issue is " 'necessarily decided' " if the issue was not " 'entirely unnecessary' to the



                                              15
judgment in the initial proceeding." (Lucindo v. Superior Court, supra, 51 Cal.3d at p.

342.)

        Here, as an initial matter, we do not agree that the language of the final stipulation

contradicts the Utah conservatorship court's finding that Homer was competent and

desired to divorce Emerald. The final stipulation reflects the legal status of the parties

going forward; it does not have any bearing on the parties' prior desires. Homer could

have desired to divorce Emerald, as the Utah conservatorship court found, yet stipulated

to continue the marriage for purposes of resolving the contested divorce proceeding.

Moreover, Emerald appears to be merging the Utah conservatorship action with the Utah

divorce action, which proceeded separately before different judges in the Utah courts.

While the Utah divorce action ended with the parties' final stipulation, the relevant

findings of fact here were entered by the Utah conservatorship court in the separate

conservatorship action. The relevant judgment in the Utah conservatorship action is the

conservatorship court's order affirming the appointment of Thayer as guardian and

conservator. While the final stipulation was also filed in the Utah conservatorship action,

it does not constitute a judgment there.

        The Utah conservatorship court's finding that Homer was competent and that he

voluntarily decided to divorce Emerald and move to Utah was not entirely unnecessary to

its order affirming the appointment of Thayer as Homer's guardian and conservator. (See

Lucindo v. Superior Court, supra, 51 Cal.3d at p. 342.) Emerald challenged Thayer's

appointment, contending that Homer had been kidnapped, that he was forced to file for

divorce from Emerald, and that he was moved to Utah against his will. The Utah

                                              16
conservatorship court's rejection of Emerald's allegations, and its affirmative findings of

Homer's competence, were not entirely unnecessary to its order affirming its appointment

of Thayer and denying Emerald's motions. (Ibid.) Indeed, they were directly on point,

since Emerald raised those very issues herself in the conservatorship action as grounds to

challenge Thayer's appointment. Because Emerald seeks to raise the same issues again in

this litigation, the application of collateral estoppel is appropriate.

                                               B

       Emerald further argues that the Utah conservatorship court's findings should not

be given preclusive effect because the Utah conservatorship court would not have

jurisdiction over the causes of action that Emerald asserts here. Emerald notes, "If the

particular issue was not presented or was not within the court's power to decide in the

first action, it will not be concluded by the judgment." (7 Witkin, Cal. Procedure (5th ed.

2008) Judgment, § 433, p. 1086.) This requirement, however, relates to the court's

jurisdiction in the first proceeding over the issues before it, not whether the first court's

jurisdiction extends to the causes of action asserted in the second proceeding.

(Strangman v. Duke (1956) 140 Cal.App.2d 185, 191 [" 'A judgment is not an

adjudication of those matters which were not and could not properly be relied upon and

determined in the previous action, but is conclusive where the requisite jurisdiction

exists, of all those matters which it clearly adjudicates.' [Citation.]"].) Emerald does not

contend that the Utah conservatorship court did not have jurisdiction to decide the




                                               17
relevant factual issues in the context of the conservatorship proceedings before it.4 The

factual findings of the Utah conservatorship court may therefore have collateral estoppel

effect where the same issues are relevant here.

       Emerald further argues her causes of action involve different primary rights than

those adjudicated in the Utah divorce action,5 and thus collateral estoppel is

inappropriate. Emerald claims that Boblitt v. Boblitt (2010) 190 Cal.App.4th 603 is

"essentially on all fours" with the dispute here. We disagree. The court in Boblitt

considered whether claim preclusion would bar a tort cause of action following an

adverse judgment in a divorce proceeding. (Id. at p. 613.) Similarly, Nicholson v. Fazeli

(2003) 113 Cal.App.4th 1091, also relied upon by Emerald, considered claim preclusion.

(Id. at p. 1100.)

       The relevant doctrine here is collateral estoppel (or issue preclusion), which the

Boblitt court specifically distinguished: "Of course, a judgment in a dissolution

4       Emerald also has not established that the Utah conservatorship court would not
have jurisdiction over the causes of action here. Her bare assertion of the Utah
conservatorship court's limited jurisdiction is unsupported by any citation to authority.
As such, we may properly consider it waived. (Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 956 [" 'The absence of cogent legal argument or citation to
authority allows this court to treat the contention as waived.' "].) Emerald's contentions
regarding the jurisdiction of the California court in which Homer's divorce petition was
filed are inapposite because the findings of fact at issue were made by the Utah court
considering the conservatorship petition involving Homer, not the California court.

5      Emerald continues to confuse the conservatorship action, where the Utah court
issued the findings of fact that create the estoppel here, with the separate divorce action,
which ended in a stipulated settlement. For the reasons stated, Emerald's argument is
unavailing regardless of which prior action is considered.
                                             18
proceeding where claims of domestic violence were, in fact, litigated still may have

preclusive effect under the doctrine of issue preclusion, which ' "precludes relitigation of

issues argued and decided in prior proceedings" ' [citation], even if it does not have

preclusive effect under the doctrine of claim preclusion." (Boblitt v. Boblitt, supra, 190

Cal.App.4th at p. 614.) The primary rights analysis, used by the Boblitt and Nicholson

courts to determine whether different causes of action were involved in the two

proceedings at issue in those cases, is inapplicable to the doctrine of collateral estoppel

because collateral estoppel applies even when different causes of action are asserted in

subsequent litigation. (Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601,

604 [" 'Any issue necessarily decided in such litigation is conclusively determined as to

the parties or their privies if it is involved in a subsequent lawsuit on a different cause of

action.' [Citations.]"]; see also Nicholson v. Fazeli, supra, 113 Cal.App.4th at p. 1100

[" '[I]n a new action on a different cause of action the former judgment is a collateral

estoppel, being conclusive on issues actually litigated in the former action.' "].)

       Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, upon which Emerald also relies,

considered whether a pending civil action may be consolidated with a closed family law

matter. Though Emerald claims the Sosnick court determined that "res judicata did not

apply[,]" we find no support for Emerald's assertion. The Sosnick court determined that a

civil action could not be consolidated with a closed family law matter, and therefore the

court that had handled the closed family law matter could not properly decide the merits

of the subsequent civil action. (Id. at p. 1340.) The court did not reach the merits of the

underlying civil action, where res judicata was raised as a defense. (Ibid.)

                                              19
                                              C

       Emerald argues that even if the facial requirements for collateral estoppel are met,

the doctrine should not be applied because of alleged deficiencies in the Utah

conservatorship proceedings. Emerald contends that it would be unfair to apply collateral

estoppel because the Utah conservatorship court's findings were affected by "[e]xtrinsic

fraud" due to Sandra's alleged theft of Homer's 2009 estate planning documents, which

prevented them from being considered by that court. Emerald also contends the Utah

conservatorship court failed to consider other key evidence, including testimony directly

from Homer.

       "Even if the minimal requirements for application of collateral estoppel are

satisfied, courts will not apply the doctrine if considerations of policy or fairness

outweigh the doctrine's purposes as applied in a particular case [citation], or if the party

to be estopped had no full and fair opportunity to litigate the issue in the prior

proceeding. " (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82; see Dunkin v.

Boskey (2000) 82 Cal.App.4th 171, 181.)

       Even assuming that extrinsic fraud may prevent the application of collateral

estoppel in the appropriate case, Emerald's evidence falls far short of raising an inference

that fraud occurred here. In her declaration opposing summary judgment, Emerald states:

"While I was in Hawaii, Homer's Will and trust documents had been taken from my

home. Because Sandra Hayden was at my home while I was away, it is my belief that

she took those legal documents. The Will was later obtained through my counsel, but it

[was] received too late to be used at the proceedings in Utah." In her briefing, Emerald

                                              20
asserts that "[t]he document was found after the Utah proceedings were concluded."

(Boldfacing in original.) Emerald cites the 2009 will for that proposition, but the only

indicator on the face of the document when it may have been found is the facsimile line,

which shows it was transmitted in January 2010, 10 months before the trial in the Utah

conservatorship action.6 Except for Emerald's speculation that Sandra "took" the will,

Emerald offers no evidence that the defendants here participated in a fraud, concealed the

will, or otherwise prevented the Utah conservatorship court from considering it. Emerald

does not explain what she did to obtain the will, either from Sandra or the estate planning

attorney who prepared it, and she does not explain whether and under what circumstances

she sought to have it admitted in the Utah court. Emerald claims that the Utah

conservatorship court did not consider the 2009 will "because of the theft," but she offers

insufficient facts to substantiate that assertion.

       Moreover, Emerald has provided no authority for the proposition that extrinsic

fraud may operate as a bar to collateral estoppel. In re Marriage of Modnick (1983) 33

Cal.3d 897, upon which Emerald relies, considered whether the failure of one spouse to

disclose the existence of community property assets constitutes extrinsic fraud sufficient

to set aside a judgment on direct appeal from that same judgment. (Id. at pp. 904-905.)

Because the court did not consider the legal doctrine (collateral estoppel) or factual

scenario (alleged theft of documentary evidence) at issue here, Marriage of Modnick is of



6      Emerald submitted the facsimile cover sheet elsewhere in her evidence in
opposition to summary judgment. The cover sheet shows that Emerald's estate planning
attorney sent the 2009 will to Emerald's daughter in January 2010.
                                               21
little relevance. None of the other authority cited by Emerald bears on the alleged fraud

at issue here. (See Zevnik v. Superior Court, supra, 159 Cal.App.4th at p. 86 [collateral

estoppel cannot be applied based on a trial court's alternate grounds for decision where

appellate court affirmed on a single ground]; Bostick v. Flex Equipment Co. (2007) 147

Cal.App.4th 80, 97-98 [collateral estoppel cannot be applied where party to be estopped

had inadequate incentive to litigate issue in prior proceedings]; Dunkin v. Boskey, supra,

82 Cal.App.4th at pp. 181-182 [collateral estoppel cannot be applied where issue decided

in prior proceeding was not identical to issue in current proceeding].)

       At most, Emerald has potentially identified evidence that was not considered by

the Utah conservatorship court. The court heard evidence regarding Homer's 2002 estate

planning documents, as well as a 2002 durable power of attorney that Homer granted to

Thayer. But, as that court explained, "The Court specifically notes that, while evidence

was presented that there was an attempt in February 2009 to modify the estate plan, the

Court received no competent or authenticated evidence of an actual modification." The

evidence the Utah conservatorship court received regarding the attempt is not clear from

the record.

       However, "the existence of 'new evidence' normally does not bar the application of

collateral estoppel." (Roos v. Red (2005) 130 Cal.App.4th 870, 888.) "An exception to

collateral estoppel cannot be grounded on the alleged discovery of more persuasive

evidence. Otherwise, there would be no end to litigation." (Evans v. Celotex Corp.

(1987) 194 Cal.App.3d 741, 748.) For this reason, the fact that the Utah conservatorship

court did not consider the 2009 will does not affect the application of collateral estoppel

                                             22
here. Moreover, Emerald has not shown that the court's consideration of the 2009 will

would have affected its findings regarding Homer's competence, since those findings

were based on the testimony of professionals who observed and assessed Homer

contemporaneously with the divorce filing and other challenged acts.7

       Emerald also contends that she did not have a " 'full and fair opportunity' " to

litigate issues related to Homer's competency in the Utah conservatorship court because

Homer was not deposed and did not testify at trial in that action. (See Zevnik v. Superior

Court, supra, 159 Cal.App.4th at p. 82.) These facts alone do not bear on Emerald's

opportunity to litigate in the Utah conservatorship court because they do not show

Emerald was prevented from deposing Homer or calling him to trial for testimony, for

example. Emerald does not allege that she sought to have Homer deposed or to have him

testify at trial, so Emerald may not have pursued such discovery. (See Carroll v. Puritan

Leasing Co. (1978) 77 Cal.App.3d 481, 490 ["[O]nce an issue is litigated and determined,

it is binding in a subsequent action notwithstanding that a party may have omitted to raise

matters for or against it which if asserted might have produced a different outcome."]; see

also Frommhagen v. Bd. of Supervisors (1987) 197 Cal.App.3d 1292, 1301 [collateral


7      Emerald's reference to two other pieces of allegedly "new" evidence not
considered by the Utah conservatorship court is similarly unavailing because, as noted
ante, such "new" evidence does not defeat the application of collateral estoppel. (See
Evans v. Celotex Corp., supra, 194 Cal.App.3d at p. 748.) Moreover, the trial court
below sustained defendants' evidentiary objection to one of the two pieces of evidence
cited by Emerald. We note that each of the parties to this appeal has cited evidence to
which an evidentiary objection was sustained, but none of the parties has argued that the
court erred in sustaining any objection. We disregard any evidence to which objections
have been sustained. (See Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133,
1138.)
                                             23
estoppel applies " 'even though some factual matters or legal arguments which could

have been presented in the prior case . . . were not presented' "].) Under these

circumstances, we cannot conclude that Emerald did not have a full and fair opportunity

to litigate in the Utah conservatorship action.

       Emerald has not shown that the defensive application of collateral estoppel here

would be unjust or unfair. (See Zevnik v. Superior Court, supra, 159 Cal.App.4th at p.

82; Dunkin v. Boskey, supra, 82 Cal.App.4th at p. 181.) We therefore decline to find

error on these grounds.

                                               D

       Emerald also contends the trial court erred by allegedly taking judicial notice of

the truth of the Utah conservatorship court's findings. In its order granting summary

judgment and summary adjudication, the trial court noted that "it is not taking judicial

notice of the truth of the matters expressed in the Utah court's Findings of Fact and

Conclusions of Law, but of the existence of the Order that found Homer Owens

competent when he decided to leave California and filed for divorce from plaintiff."

Nonetheless, Emerald argues that the trial court's application of collateral estoppel here

necessarily takes judicial notice of the truth of the Utah conservatorship court's factual

findings.

       "While we may take judicial notice of the existence of judicial opinions, court

documents, and verdicts reached, we cannot take judicial notice of the truth of hearsay

statements in other decisions or court files [citation], or of the truth of factual findings

made in another action [citations]." (Johnson & Johnson v. Superior Court (2011) 192

                                              24
Cal.App.4th 757, 768.) However, as the authorities cited by Emerald explain, the

application of collateral estoppel does not require judicial notice of the truth of a court's

factual finding. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569; Plumley v. Mockett

(2008) 164 Cal.App.4th 1031, 1050-1051.) Emerald's argument "appears to improperly

merge the doctrine of judicial notice with the doctrines of res judicata and collateral

estoppel. Whether a factual finding is true is a different question than whether the truth

of that factual finding may or may not be subsequently litigated a second time."

(Sosinsky v. Grant, supra, 6 Cal.App.4th at p. 1569.) Where the requirements for

application of the doctrine are satisfied, collateral estoppel will bar relitigation of an issue

regardless of whether the issue was rightly decided in the prior action. (Ibid.)

       Here, the trial court took judicial notice of the existence of the Utah

conservatorship court's findings of fact and conclusions of law. Judicial notice of the

existence of court records is proper to evaluate whether collateral estoppel applies. "To

determine whether to preclude relitigation on collateral estoppel grounds, judicial notice

may be taken of a prior judgment and other court records." (Rodgers v. Sargent Controls

& Aerospace, supra, 136 Cal.App.4th at p. 90.) Emerald's contention that the court erred

in doing so has no merit.

                                               E

       Emerald further argues that defendants have not offered competent evidence

sufficient to sustain their motion for summary judgment and summary adjudication.

Emerald asserts that the central issue in the lawsuit is Homer's intent, and defendants



                                              25
have not offered any evidence directly from Homer. Emerald does not cite any legal

authority in support of her argument.

       Emerald's bare assertion that defendants have not offered competent evidence does

not explain why collateral estoppel should not apply here. "Summary judgment is an

appropriate remedy when the doctrine of collateral estoppel refutes all triable issues of

fact suggested by the pleadings and supporting documents." (Kelly v. Vons Companies,

Inc. (1998) 67 Cal.App.4th 1329, 1335.) Similarly, Emerald's contention that the trial

court erred in granting summary judgment because defendants did not offer evidence

directly from Homer regarding his intent to divorce Emerald ignores the effect of

collateral estoppel. That doctrine precludes relitigation of Homer's intent when it has

already been litigated and determined in a prior proceeding. (See Lucindo v. Superior

Court, supra, 51 Cal.3d at p. 341; Rodgers v. Sargent Controls & Aerospace, supra, 136

Cal.App.4th at pp. 89-90.) Moreover, as discussed, the doctrine of collateral estoppel

applies regardless whether relevant evidence was omitted from the prior proceeding.

(See Frommhagen v. Bd. of Supervisors, supra, 197 Cal.App.3d at p. 1301.) Because

Emerald has not shown why collateral estoppel should not be applied in this case, we

conclude the trial court properly invoked the doctrine here.

                                              III

       Emerald argues that even if collateral estoppel is found, the factual findings of the

Utah conservatorship court cannot bar her malicious prosecution action because the Utah

court's findings bear only on Homer's initial intent to file for divorce, not his intent or

competence to maintain the divorce actions. "[A] conservatee may not maintain a

                                              26
dissolution action unless 'capable of exercising a judgment, and expressing a wish, that

the marriage be dissolved on account of irreconcilable differences.' [Citation.]" (In re

Marriage of Straczynski (2010) 189 Cal.App.4th 531, 540-541.) Emerald asserts in her

briefing here that if Homer did not have ongoing intent or competence to maintain the

divorce actions, the divorce actions lacked probable cause. (See ibid.; see also Zamos v.

Stroud (2004) 32 Cal.4th 958, 970 ["[A]n attorney may be held liable for malicious

prosecution for continuing to prosecute a lawsuit discovered to lack probable cause."].)

       We note initially that Emerald does not appear to have alleged in her complaint

that maintenance of either divorce action constitutes malicious prosecution. "The

complaint limits the issues to be addressed at the motion for summary judgment. . . . If a

plaintiff wishes to expand the issues presented, it is incumbent on the plaintiff to seek

leave to amend the complaint either prior to the hearing on the motion for summary

judgment, or at the hearing itself." (Laabs v. City of Victorville (2008) 163 Cal.App.4th

1242, 1258; see Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d 1108, 1132.)

Moreover, Emerald has not provided any discussion of what law would govern Homer's

Utah divorce action, and whether the same requirements would apply to maintenance of

the action there, so it is unclear whether Emerald's argument applies to the Utah divorce

action at all. We note that in the Utah conservatorship action, the court specifically found

that Thayer's authority as Homer's guardian and conservator "includes the power for Mr.

Thayer to proceed with Homer's currently pending divorce action in Utah."

       In any event, even if Emerald had properly alleged malicious prosecution based on

maintenance of the divorce actions, and even if improper maintenance were a valid

                                             27
theory of malicious prosecution as to both actions, we need not reach the merits of

Emerald's argument because the undisputed evidence shows that Emerald cannot

establish an essential element of a cause of action for malicious prosecution: legal

termination of the underlying action on the merits in Emerald's favor. (See Zamos v.

Stroud, supra, 32 Cal.4th at p. 965.) Although the trial court did not discuss this element

in its order granting summary judgment and summary adjudication, we may properly

affirm on this ground. "The appellate court should affirm the judgment of the trial court

if it is correct on any theory of law applicable to the case, including but not limited to the

theory adopted by the trial court, providing the facts are undisputed. [Citations.] Thus

we must affirm so long as any of the grounds urged by [defendants], either here or in the

trial court, entitle [them] to summary judgment. [Citation.]" (Fireman's Fund Ins. Co. v.

Maryland Casualty Co. (1994) 21 Cal.App.4th 1586, 1595.)

       Assessing whether a prior action ended with a favorable termination on the merits

requires examination of the circumstances surrounding the termination of the action. For

example, "a dismissal resulting from a settlement does not constitute a favorable

determination because ' . . . the dismissal reflects ambiguously on the merits of the action

as it results from the joint action of the parties, thus leaving open the question of

defendant's guilt or innocence. [Citation.]' [Citation.] After all, '[t]he purpose of a

settlement is to avoid a determination of the merits.' [Citation.]" (Pender v. Radin

(1994) 23 Cal.App.4th 1807, 1814; see also JSJ Limited Partnership v. Mehrban (2012)

205 Cal.App.4th 1512, 1526, fn. 5 ["[A] case dismissed with prejudice pursuant to a



                                              28
settlement agreement would . . . not [be] a favorable termination for malicious

prosecution purposes."].)

       Here, defendants argue that neither the California nor the Utah divorce actions

ended in legal termination on the merits in Emerald's favor. We agree. The California

divorce action was dismissed without prejudice and with the consent of Emerald's

attorney. "A dismissal resulting from negotiation, settlement, or consent is generally not

deemed a favorable termination of the proceedings." (Minasian v. Sapse (1978) 80

Cal.App.3d 823, 827, fn. 4 [italics added].) Because Emerald consented to the dismissal

of the California divorce action (and it was immediately refiled in Utah), that dismissal

cannot be interpreted as a favorable termination on the merits under the circumstances

here. (See ibid.) The Utah divorce action ended in a final stipulation that maintained the

couple's marriage but reflected compromises regarding Homer's care and assets. The fact

that maintaining the marriage was one of Emerald's "key goals," as Emerald argues, does

not make such a compromise settlement a favorable legal termination on the merits.

"[W]here, as here, termination is by way of an agreement by the parties, there is

ambiguity with respect to the merits of the proceeding and in general no favorable

termination for purposes of pursuing a malicious prosecution action occurs." (Dalany v.

American Pacific Holding Corp. (1996) 42 Cal.App.4th 822, 828.) Settlement of the

Utah divorce action, by way of the final stipulation, precludes a finding of favorable

termination on the merits. (See ibid.) Summary adjudication of Emerald's malicious

prosecution cause of action was therefore appropriate based on the lack of a favorable



                                            29
legal termination on the merits regardless of whether collateral estoppel applies. (See

Pender v. Radin, supra, 23 Cal.App.4th at p. 1817.)

                                             IV

       We conclude Emerald has not shown the trial court erred in granting summary

judgment on her complaint. The trial court properly applied the collateral estoppel

doctrine to bar Emerald's causes of action for elder abuse, financial elder abuse,

conversion, intentional and negligent infliction of emotional distress, imposition of a

constructive trust, and abuse of process. We further conclude that Emerald's cause of

action for malicious prosecution fails as a matter of law, regardless of whether collateral

estoppel applies, on the ground that neither the California nor the Utah divorce action

ended in a favorable legal termination on the merits in Emerald's favor. As such, we

need not consider Emerald's argument that the trial court erred by granting summary

judgment on the alternative ground that the final stipulation settling Homer's Utah

divorce action barred Emerald's claims.

       We note that Emerald has not challenged the trial court's third alternative ground,

lack of standing to sue on behalf of Homer. Emerald has therefore waived any claim of

error as to her causes of action on behalf of Homer, which provides a separate alternative

ground to affirm the trial court's order granting summary adjudication of those causes of

action. (See Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th

1171, 1177 ["[F]ailure to address summary adjudication of a claim on appeal constitutes

abandonment of that claim."].)



                                             30
      Finally, we need not address the numerous additional alternative grounds for

affirmance urged by defendants, many of which go unrebutted by Emerald in her reply.

                                    DISPOSITION

      The judgment is affirmed. Appellant to bear respondents' costs on appeal.




                                                                           HALLER, J.

WE CONCUR:



NARES, Acting P. J.



MCINTYRE, J.




                                          31
