Filed 12/31/13 Ghosh v. City of Berkeley CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


RASH B. GHOSH,
         Plaintiff and Appellant,
                                                                     A133425
v.
CITY OF BERKELEY et al.,                                             (Alameda County
                                                                     Super. Ct. No. RG08418652)
         Defendants and Respondents.

         This case involves a long-running dispute between plaintiff Rash B. Ghosh
(Ghosh) and the City of Berkeley1 involving Ghosh’s failure to abate unsafe conditions
on his real property. In a separate proceeding, the property was declared a public
nuisance and an injunction was issued. After Ghosh filed two unsuccessful appeals in
this court, the parties stipulated to a specific timetable for abatement. The nuisance was
not abated. Ghosh then brought this action asserting Berkeley violated his constitutional
rights by unreasonably refusing to extend the time in which to abate the nuisance and by
retaliating against him. The trial court granted judgment on the pleadings on the ground
Ghosh’s claims are barred by res judicata and are moot. We affirm the judgment.




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          Ghosh also named as defendants Zack Cowan, Berkeley City Attorney, Joan
MacQuarrie, of the Berkeley Planning and Development Division, Malcolm Prince, a
Berkeley building inspector, and Greg Heidenreich, also a Berkeley building inspector.
(CT 607) We refer to the defendants collectively as “Berkeley.” The other named
plaintiffs in the underlying action are not parties to this appeal.


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                       FACTUAL AND PROCEDURAL BACKGROUND
       We set forth only the facts necessary to understanding the issues in the instant
appeal. Ghosh owns real property located at 2507–2509 McGee Avenue and 1700
Dwight Way in Berkeley, California. The property consists of two three-story buildings
on one parcel.
       In 1999, the City of Berkeley discovered an illegal addition on the property.
Ghosh was sent a notice and order to abate, outlining the violations and necessary
corrections. After failure to make the corrections, Ghosh was cited for various zoning
ordinance violations. The city commenced public nuisance proceedings and, after a
hearing, the Zoning Adjustments Board declared Ghosh’s property a public nuisance.
Ghosh unsuccessfully appealed to the city council.
       Ghosh filed a petition for writ of administrative mandate challenging both the
zoning board’s and the city council’s resolutions declaring the property a public nuisance,
Alameda County Superior Court case No. 2002-043750 (the first lawsuit.) Berkeley filed
a cross-complaint seeking injunctive relief, which was granted. Ghosh appealed the
injunction (case No. A100924), and this court (Division Five) affirmed in 2003.
       The matter then returned to the trial court for further proceedings. The court
granted Berkeley’s motion for judgment on the pleadings, entered judgment, and issued a
permanent injunction ordering Ghosh to abate the public nuisance on his property
“forthwith.” Ghosh again appealed (case No. A106858), and this court (Division 5)
affirmed the judgment in 2005.
       The nuisance was not abated, and Berkeley filed a motion for appointment of a
receiver for Ghosh’s property. In May 2007, Ghosh and Berkeley entered into a
stipulation that Ghosh would abate the nuisance according to an agreed-upon schedule.
Berkeley agreed to take its motion for appointment of a receiver off-calendar, and Ghosh
agreed to “the immediate issuance of the Order Appointing Receiver and Injunction that
is attached hereto as Exhibit D, upon 24 hours notice to him if he does not strictly and
literally comply with each and every requirement set forth in Exhibit C, or if his second
corrected application for a building permit . . . is not approved.”


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       Ghosh did not abate the nuisance. Instead, he filed this lawsuit in June 2009. In a
fourth amended complaint filed in August 2010 (the operative pleading), Ghosh alleged
two causes of action: one for due process violations under the California Constitution,
and one alleging retaliation based on his exercise of the right to assemble and petition the
government under article I, section 3 of the California Constitution.
       On February 3, 2011, the court in the first lawsuit granted Berkeley’s motion to
enforce the stipulation and appoint a receiver to take possession of Ghosh’s real property.
Berkeley served the notice of entry of order on February 4, 2011. As a postjudgment
order, the order was appealable, but Ghosh did not appeal.
       Five months later, on July 29, 2011, the court in this action granted Berkeley’s
motion for judgment on the pleadings, ruling the action was barred by the doctrine of res
judicata and, in any event, the claims were moot because “plaintiff asks the Court for
relief it clearly cannot award.” Judgment was entered on August 11, 2011, and Ghosh
appealed.
                                          DISCUSSION
       Ghosh contends the trial court erred in granting judgment on the pleadings on the
ground the first action, resulting in the appointment of a receiver for Ghosh’s property,
has res judicata effect and bars the instant lawsuit.2
       A motion for judgment on the pleadings is properly granted where “[t]he
complaint does not state facts sufficient to constitute a cause of action against that
defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) “A motion for judgment on the
pleadings is equivalent to a demurrer and is governed by the same de novo standard of
review.” (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.) “All
properly pleaded, material facts are deemed true, but not contentions, deductions, or
conclusions of fact or law . . . .” (Ibid.)



       2
         Ghosh indicates he “takes exception” only to the order granting judgment on the
pleadings, and not to the two orders sustaining demurrers “that collectively resulted in the
dismissal of all of the causes of action . . . .”


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       Under the doctrine of res judicata, “all claims based on the same cause of action
must be decided in a single suit; if not brought initially, they may not be raised at a later
date. ‘ “Res judicata precludes piecemeal litigation by splitting a single cause of action
or relitigation of the same cause of action on a different legal theory or for different
relief.” ’ [Citation.] A predictable doctrine of res judicata benefits both the parties and
the courts because it ‘seeks to curtail multiple litigation causing vexation and expense to
the parties and wasted effort and expense in judicial administration.’ [Citation.]”
(Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897, italics omitted.)
       “ ‘As generally understood, “[t]he doctrine of res judicata gives certain conclusive
effect to a former judgment in subsequent litigation involving the same controversy.”
[Citation.] The doctrine “has a double aspect.” [Citation.] “In its primary aspect,”
commonly known as claim preclusion, it “operates as a bar to the maintenance of a
second suit between the same parties on the same cause of action. [Citation.]” [Citation.]
“In its secondary aspect,” commonly known as collateral estoppel, “[t]he prior judgment
. . . ‘operates’ ” in “a second suit . . . based on a different cause of action . . . ‘as an
estoppel or conclusive adjudication as to such issues in the second action as were actually
litigated and determined in the first action.’ [Citation.]” [Citation.] “The prerequisite
elements for applying the doctrine to either an entire cause of action or one or more
issues are the same: (1) A claim or issue raised in the present action is identical to a
claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final
judgment on the merits; and (3) the party against whom the doctrine is being asserted was
a party or in privity with a party to the prior proceeding. [Citations.]” ’ [Citation.]”
(Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797, italics omitted.)
       Ghosh does not dispute that “all of the requisite elements” for application of res
judicata “appear to be present.” Instead, he asserts “such may only be an illusion induced
by a misapprehension concerning the non self-limiting effect of the rules governing the
doctrine of res judicata more fully explained in the following portion of this brief.”
Ghosh goes on to explain such “misapprehension” thusly: “[i]t is entirely possible, as the
record will demonstrate, including the materials the court will hopefully review as a


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result of Ghosh’s motion for the court to take judicial notice of the entire record in the
companion case, no. 200243750 (to be filed shortly herein) that the final judgment in the
underlying case herein, rightfully or wrongfully, was obtained before the actual final
judgment in the companion case.” (Emphasis omitted.)
       Ghosh maintains “[i]t is entirely possible” the February 3, 2011 order in case
No. 2002043750 was not a “final judgment” because “it appears from the official record
that at the time of the order granting the motion for [judgment on the pleadings] in the
underlying case herein on or about July 29, 2011 . . . there was at least one, if not more,
cross-complaints still active in the companion case and that status, as shown below, affect
the finding of res judicata.” Ghosh also claims the docket in case No. 200243750 “may
be . . . somewhat inaccurate . . . since it does not appear to evidence all filings in that
case.” He concludes “[u]ntil the mystery of all these competing pleadings [in case
No. 200243750] is resolved and until a court can make a determination based on all the
evidence that [case No. 200243750] is or was ripe for a final judgment, the order granting
dismissal of Ghosh’s complaint based on res judicata should be set aside.” (Emphasis
omitted.)
       Ghosh’s claims are not cognizable on appeal. As to his contention there was no
final judgment in the first lawsuit on which res judicata could be based, the record does
not reflect Ghosh ever raised the “the mystery of all these competing pleadings” in the
trial court, and thus has waived this factually-laden assertion. (Baychester Shopping
Center, Inc. v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2008)
165 Cal.App.4th 1000, 1008 [“[P]oints not asserted in the trial court are deemed waived
and will not be considered for the first time on appeal.”].) Even if the issue were not
waived, this court will not conduct the “evidentiary resolution of issues still unresolved
that had not yet been accomplished” Ghosh requests. It is not the province of the
appellate courts to decide questions of fact. (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
Furthermore, the “official record” in the first lawsuit which Ghosh claims we should
review is not before us. He did not submit it to the trial court, nor did he ask the trial
court to take judicial notice of it. Accordingly, it is not in the record on appeal. We, in


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turn, denied Ghosh’s request for judicial notice of the record in the first lawsuit on
January 7, 2013. (See People v. Hamilton (1986) 191 Cal.App.3d Supp. 13, 21–22 [“as a
general rule the court should not take such notice if . . . it appears that the matter has not
been presented to and considered by the trial court in the first instance”].) In any event,
the appellate opinion issued in Ghosh’s second appeal in the first lawsuit indicates it was
from an appealable judgment on the pleadings in which “the trial court essentially ruled
as a matter of law that injunctive relief was an appropriate remedy.” (Ghosh v. City of
Berkeley (Apr. 19, 2005, A106858) [nonpub. opn.], at p. 3.)
       As to the trial court’s additional ruling that his claims are moot, Ghosh contends a
claim cannot be moot unless it is “shown that the passage of time is not attributable to
anything the defendants have done and unless a true fiction is created, this determination
appears to be an impossible task,” relying on Californians for an Open Primary v.
McPherson (2006) 38 Cal.4th 735 (MacPherson). Ghosh miscites MacPherson. What
Justice Werdegar actually states in her concurrence at the page Ghosh cites is:
“‘Although a case may originally present an existing controversy, if before decision it
has, through act of the parties or other cause, occurring after the commencement of the
action, lost that essential character, it becomes a moot case or question which will not be
considered by the court.’ [Citation.]” (Id. at p. 783, fn. 1, italics added.) Ghosh also
“does not concede” the court cannot “grant him a viable remedy.” He fails, however, to
provide any hint what that relief might be, other than to assert that if “injunctive relief
proves to be appropriate . . . the competing interests of the parties would have to be
reconciled.” Injunctive relief already was proved to be appropriate, and a receiver has
been appointed. The trial court correctly ruled intervening events have rendered Ghosh’s
claims moot. It is now time, as this court stated in 2005, for “procedural quibbling [to]
end, and an order must issue requiring that the law be obeyed.” (Ghosh v. City of
Berkeley, supra, A106858, at p. 7.)
                                        DISPOSITION
       The judgment is affirmed. Respondents to recover costs on appeal.



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                                               _________________________
                                               Banke, J.


We concur:


_________________________
Dondero, Acting P. J.


_________________________
Becton, J.




      
         Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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