Filed 9/27/13 Nunn v. Fenswick CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


WESLEY I. NUNN,
         Plaintiff and Appellant,
                                                                     A137415
v.
MELISSA FENSWICK,                                                    (Del Norte County
                                                                     Super. Ct. No. CVUJ12-1104)
         Defendant and Respondent.


         This is at least the fourth lawsuit brought by plaintiff and appellant Wesley I.
Nunn against defendant and respondent Melissa Fenswick (née Melissa LeBlanc). The
trial court granted defendant’s demurrer to the first amended complaint, concluding the
claims were barred by the doctrine of res judicata. Plaintiff, representing himself, appeals
from the judgment of dismissal, arguing the claims presented in this most recent case
were never resolved on their merits. We affirm the judgment.
                                FACTS AND PROCEDURAL HISTORY
         Plaintiff owned real property on Meridian Street in Crescent City, California. He
and Jennifer Fenswick (who is not a party to this appeal) were romantically involved and
lived together for several years. When the relationship ended in 2004, plaintiff agreed to
deed the Meridian Street property to defendant, who is now Jennifer Fenswick’s
daughter-in-law, in exchange for a release of Jennifer Fenswick’s claims against him. A
grant deed transferring the property to defendant was signed by plaintiff on May 24,
2004, and recorded on June 15, 2004. A release of claims was signed by Jennifer
Fenswick on June 15, 2004.


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       A. Jennifer Fenswick v. Wesley Nunn (No. CVUJ05-1431)
       Jennifer Fenswick filed a lawsuit against plaintiff on September 15, 2005, alleging
she was entitled to recompense under an oral agreement to pool resources and share
equally in the benefits of property acquired during their relationship. (Jennifer Fenswick
v. Nunn (No. CVUJ05-1431).) Plaintiff filed a cross-complaint against Jennifer Fenswick
alleging, among other things, she had fraudulently induced him to transfer the Meridian
Street property to defendant by signing a release of her claims. Following a bench trial,
the court found in favor of plaintiff on the causes of action asserted by Jennifer Fenswick.
It also ruled the release signed on June 15, 2004 was a valid release and settlement of all
financial obligations of the parties up to that date, that neither party had fraudulently
induced the other for any purpose, and that neither side had been unjustly enriched at the
expense of the other.
       B. Nunn v. LeBlanc (No. CVUJ05-1527)
       On November 10, 2005, while the Jennifer Fenswick v. Nunn litigation was still
pending, plaintiff filed a separate lawsuit against defendant (under her former surname,
LeBlanc) seeking damages for fraud and rescission of the agreement to transfer the
Meridian Street property to her. (Nunn v. LeBlanc (No. CVUJ05-1527).) Following the
judgment in Jennifer Fenswick v. Nunn, defendant filed a motion to dismiss, arguing
plaintiff’s claims against her were barred by principles of res judicata and collateral
estoppel. The trial court agreed and issued the following written ruling: “[T]he court
finds that the issues raised by the pleadings, as they are now framed, have been resolved
by the findings necessarily made by the trial judge when reaching the decision in the
[Jennifer] Fenswick v. Nunn case. Once having found that [Jennifer] Fenswick had not
committed fraud as to Nunn, no subsequent finding to the contrary can be made regarding
LeBlanc, as there are no independent allegations against LeBlanc. All allegations against
her are premised on her association with [Jennifer] Fenswick, who has been held innocent
of fraud towards Mr. Nunn.” A judgment dismissing the action was entered on August
31, 2009, and though Nunn filed a notice of appeal, that appeal was dismissed after he
failed to designate the appellate record.


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       C. Nunn v. Jennifer Fenswick et al. (No. CVUJ09-1323)
       On September 14, 2009, after the dismissal of Nunn v. LeBlanc (No CVUJ05-
1527), Plaintiff filed another action naming Jennifer Fenswick and Does 1 through 5 as
defendants. (No. CVUJ09-1323.) The original complaint alleged a cause of action for
breach of written contract, based on Jennifer Fenswick’s filing of a lawsuit against
plaintiff after signing the June 15, 2004 release, as well as a common count seeking
mesne profits resulting from that breach. On January 25, 2010, plaintiff filed a first
amended complaint asserting the same causes of action against Jennifer Fenswick,
defendant and Does 1 through 4.
       After defendant successfully demurred to the first amended complaint, plaintiff
filed a second amended complaint that included causes of action for declaratory relief,
constructive trust, rescission, quiet title, mesne profits, malicious prosecution, and abuse
of process. Defendant again filed a demurrer, which the trial court sustained without
leave to amend. Its written order stated, “The gravaman of Plaintiff’s complaint is that he
entered into a contract which provided that he would not be sued, in exchange for
consideration in the form of a parcel of real estate. Subsequently, he was sued, and he
therefore seeks return of the consideration. [¶] No matter how he seeks to characterize
his claim, his cause of action is based upon an alleged breach of contract. The Statute of
Limitations has clearly run, and further amendment would be useless.”1 The court denied
plaintiff’s motion for reconsideration under section 1008, subdivision (a), in which he
argued the limitations period had been equitably tolled during the pendency of his second
lawsuit, Nunn v. LeBlanc (No. CVUJ05-1527). Judgment was entered in favor of




       1
           The operative breach of contract occurred on September 15, 2005, when
Jennifer Fenswick filed her lawsuit against plaintiff. Plaintiff filed the first amended
complaint naming defendant on January 25, 2010, more than four years after the breach.
Because plaintiff had previously sued defendant and was not ignorant of her identity or
the facts that allegedly rendered her liable, he could not rely on his attempted substitution
of her as a Doe defendant to “relate back” to the date of the original complaint. (Woo v.
Superior Court (Zarabi) (1999) 75 Cal.App.4th 169, 177.)

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defendant, and this court affirmed that judgment on appeal. (Nunn v. LeBlanc, nonpub.
opn. filed Feb. 6, 2012 (A132141)).
       D. Federal Litigation
       Plaintiff filed a lawsuit in federal district court in March 2011 against defendant
and others, apparently based on a theory of constructive trust. That action was dismissed
with prejudice by the court on March 28, 2012.
       E. Current Lawsuit
       On March 21, 2012, plaintiff filed the instant action against defendant.2 In a first
amended complaint filed the following day, March 22, 2012, he set forth causes of action
for declaratory relief, quiet title, and damages for mesne profits, seeking return of the
Meridian property. The first amended complaint cites Village Northridge Homeowners
Assn. v. State Farm Fire & Casualty Co. (2010) 50 Cal.4th 913 for the proposition that
Jennifer Fenswick rescinded the settlement agreement and release of claims against
plaintiff and was required to return the Meridian Street property to plaintiff before she
filed her 2005 lawsuit seeking damages.
       Defendant filed a demurrer arguing the claims were barred by the statute of
limitations and res judicata, as they were based on facts already litigated and decided on
the merits in the previous lawsuits. The trial court issued a written order sustaining the
demurrer without leave to amend: “Plaintiff cannot state a cause of action for those
reasons set forth in Defendant’s moving papers, including that res judicata applies to his
claims. Further, this court finds there is no reasonable probability that amendment will
cure the defect.” A judgment of dismissal was entered from which plaintiff appeals.
                                STANDARD OF REVIEW
       In reviewing an order sustaining a demurrer, we examine the complaint de novo to
determine whether it alleges facts sufficient to state a cause of action under any legal
theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We assume the

       2
          The appellant’s appendix does not contain a copy of the original complaint, but
the filing date stated in the opening brief is not disputed by respondent and does not
affect our analysis in any way.

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truth of the properly pleaded factual allegations, facts that can reasonably be inferred
from those expressly pleaded, and facts of which judicial notice can be taken. (Schifando
v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Villari v. Mozilo (2012) 208
Cal.App.4th 1470, 1477.) The court’s denial of leave to amend is reviewed for abuse of
discretion, the question being whether there is any reasonable probability the defect can
be cured by amendment. (V.C. v. Los Angeles Unified School Dist. (2006) 139
Cal.App.4th 499, 506.)
                                       DISCUSSION
       Plaintiff contends the demurrer should not have been sustained on the ground of
res judicata because the causes of action in the first amended complaint were never
actually litigated and decided. We disagree.
       Although couched in somewhat different terms, the first amended complaint in
this most recent lawsuit seeks the same relief as plaintiff’s previous action against
defendant, Nunn v. Jennifer Fenswick (No. CVUJ09-1323), on essentially the same
theory—that plaintiff is entitled to return of the Meridian property based on Jennifer
Fenswick’s filing of a lawsuit in 2005 after she purported to release her claims against
plaintiff. The trial judge in Nunn v. Jennifer Fenswick concluded this was a claim arising
from Fenwick’s breach of written contract, to which a four-year statute of limitations
applied, meaning plaintiff’s claim against defendant more than four years later was time
barred. (Code Civ. Proc., § 337, subd. (a).) This court affirmed the judgment on appeal.
       The doctrine of res judicata precludes parties from relitigating a cause of action
that has been finally determined by a court acting with proper jurisdiction. (Perez v.
Roe 1 (2006) 146 Cal.App.4th 171, 183, fn. 7 (Roe 1).) The resolution of the statute of
limitations issue in Nunn v. Jennifer Fenswick was based on the same facts as those now
alleged, and that former judgment is res judicata with respect to that issue. (Roe 1 at
p. 186.) Plaintiff disagrees, arguing that a judgment based on “technical or formal”
defects raised by demurrer is not on the merits for purposes of res judicata. (See
Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 52 (Goddard).) While
the judgment in Nunn v. Jennifer Fenswick may not be res judicata as to the underlying


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merits of plaintiff’s claim for return of the Meridian Street property (an issue the trial
court found unnecessary to address), it does have preclusive effect as to the issue that was
decided: the statute of limitations. (Roe 1, at p. 186; see also MIB, Inc. v. Superior Court
(1980) 106 Cal.App.3d 228, 234-235.) “A judgment given after the sustaining of a
general demurrer on a ground of substance, for example, that an absolute defense is
disclosed by the allegations of the complaint, may be deemed a judgment on the merits,
and conclusive in a subsequent suit. . . .” (Goddard, at p. 52.)
       Apart from the res judicata effect of the judgment in Nunn v. Jennifer Fenswick,
the facts alleged in the first amended complaint show the claims asserted are time barred.
To state the obvious, more time has passed since the alleged breach of contract in 2006,
and the current suit, filed in 2012, falls even farther outside the four-year limitations
period. Plaintiff states repeatedly in his opening brief that he has never been provided
with a forum in which to adjudicate the theory of rescission based on a failure of
consideration (i.e., Jennifer Fenswick’s failure to forego a lawsuit against him), but this
theory is the same breach of written contract found to be barred by the statute of
limitations in Nunn v. Jennifer Fenswick.
       We next consider whether the trial court abused its discretion in denying plaintiff
leave to amend the first amended complaint. We find no such abuse, because plaintiff
has not carried his burden to “spell out” the specific proposed amendments that would
render his claims timely. (People ex rel. Brown v. Powerex Corp. (2007) 153
Cal.App.4th 93, 112.) In connection with a motion for reconsideration under Code of
Civil Procedure section 1008, plaintiff submitted a proposed second amended complaint
containing three causes of action: (1) declaratory relief based on the judgment in Jennifer
Fenswick v. Nunn (No. CVUJ05-1431); (2) declaratory relief based on Jennifer
Fenswick’s purported “rescission” of their original settlement agreement, which, plaintiff
alleges, required her to return the Meridian property; and (3) declaratory relief to interpret
the ruling in Nunn v. LeBlanc (No. CVUJ05-1527) so as not to have preclusive effect
regarding plaintiff’s right to enforce Jennifer Fenswick’s “party effected rescission.”
Each is predicated on the same theory as the time barred claim for breach of written


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contract—that plaintiff is entitled to the return of the Meridian Street property because it
was the consideration for his settlement agreement with Jennifer Fenswick and she
rescinded that agreement when she brought her lawsuit against him.
                                      DISPOSITION
       The judgment is affirmed. Because defendant did not appear in this appeal, the
parties shall bear their own costs.




                                           NEEDHAM, J.




We concur.




JONES, P. J.




SIMONS, J.




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