Vaughn v. Darwish CA2/2

Filed 11/12/20 Vaughn v. Darwish CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JACK VAUGHN et al., B296693 (Consolidated with
B305132)
Plaintiffs and Appellants,
(Los Angeles County
v. Super. Ct. No. BC521721)

BARBARA DARWISH et al.,

Defendants and
Appellants.

APPEALS from a judgment and post-judgment order of the
Superior Court of Los Angeles County, Richard L. Fruin, Jr.,
Judge. Affirmed.

Mesisca Riley & Kreitenberg, Dennis P. Riley and Rena E.
Kreitenberg for Plaintiffs and Appellants.

Stillman & Associates and Philip H. Stillman for
Defendants and Appellants.

******
 This is the latest chapter in a seemingly unending tome of
litigation between a landlord and its now-former tenants. What
started as a landlord-tenant dispute back in 2010 has in the
ensuing decade spawned eight lawsuits,1 seven appeals,2 and five
writ proceedings.3 Throughout the course of this litigation,
including the two consolidated appeals before us now, the parties
and their attorneys have repeatedly misstated the facts and
procedural history of this litigation, repeatedly misstated the law,
repeatedly changed their positions on issues, and repeatedly
sought to re-litigate previously decided issues.
These appeals arise out of the malicious prosecution
chapter of the saga. Back in 2012, the landlord brought six
separate unlawful detainer actions, one against each tenant
living in a house. The unlawful detainer court tried two of the
actions as bellwethers and ruled for the tenants; thereafter, the

1 These lawsuits include (1-3) three rounds of unlawful
detainer actions by the landlord; the tenants’ civil lawsuits for (4)
damages, (5) malicious prosecution, and (6) fraudulent transfer;
and the landlord’s civil actions for (7) fraudulent transfer, and (8)
destruction of property.

2 These appeals include (1) a 2015 appeal from the denial of
the anti-SLAPP motion in this malicious prosecution lawsuit; (2)
an appeal from the tenants’ civil action for damages; (3) an
appeal from the tenants’ fraudulent transfer action; (4) an appeal
from the landlord’s fraudulent transfer action; (5) a 2017 appeal
from the grant of judgment on the pleadings as to two tenants in
this malicious prosecution lawsuit; (6) this appeal; and (7) an
appeal in the landlord’s fraudulent transfer action.

3 These writ proceedings include B304993, B300230,
B295510, B292830, and B259269.

2
landlord voluntarily dismissed the remaining four unlawful
detainer actions. In 2013, all six tenants sued the landlord for
malicious prosecution of the unlawful detainer actions. In 2016,
the trial court ruled that the landlord was entitled to judgment
on the pleadings as to the two bellwether tenants because the
unlawful detainer court’s denial of the tenants’ midtrial motion
for judgment under Code of Civil Procedure section 631.84
operated as a binding determination that the landlord had
probable cause to bring its unlawful detainer action against those
two bellwether tenants. We subsequently affirmed. (Hart v.
Darwish (2017) 12 Cal.App.5th 218 (Hart).) In 2019, the trial
court ruled that the landlord was entitled to judgment as to the
remaining tenants, but did so on the ground that the landlord’s
voluntary dismissal of the unlawful detainer actions against
those tenants did not constitute a “favorable termination” on the
merits. Those tenants now appeal. We conclude that the trial
court’s “favorable termination” ruling is incorrect, but its
ultimate ruling in the landlord’s favor is correct because its prior
finding of probable cause as to the two bellwether tenants
necessarily applies as a matter of law to the remaining tenants.
The landlord has also appealed the trial court’s post-judgment
order refusing to award contractual attorney fees, but we
conclude that this ruling is correct.
We accordingly affirm.

4 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.

3
 FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Acquisition of rental premises
This entire saga revolves around a two-story, single-family
house located on Hyperion Avenue in Los Angeles (the house).
By 2010, six unrelated people—Jack Vaughn (Vaughn),
Esmeralda Hernandez (Hernandez), Wayne Hart (Hart), Dennis
Goldson (Goldson), Carlos Rodriguez (Rodriguez), and Ernest
Johnson (Johnson) (collectively, tenants)—were living in the
house.
In August 2010, the house was acquired at a foreclosure
sale by a trust whose trustee was an entity controlled by Barbara
Darwish (Barbara).5 Since then, title to the house has been held
by Gingko Rose, Ltd., whose members include Barbara, her
husband David Darwish (David), and another entity (Logerm,
LLC) controlled by the Darwishes (collectively, the landlord).
B. 2012 unlawful detainer action
1. The three-day notice and pleadings
On April 24, 2012, the landlord served the tenants with
three-day notices to pay 10 months’ worth of “delinquent rent” or
to “quit [the] premises.”
The next month, after the tenants did not pay this
“delinquent rent,” the landlord filed six separate unlawful
detainer actions, one against each tenant.6 Except for differences

5 Because the Darwishes share the same surname, we will
use their first names to avoid confusion. We mean no disrespect.

6 This was the landlord’s third round of unlawful detainers.
In the first round, the trial court entered judgment for the
tenants after finding that the unlawful detainer was brought

4
in the tenants’ names and the amounts of delinquent rent, all six
unlawful detainer actions had “identical” pleadings and involved
“identical” facts.
2. The bellwether trial
Rather than try all six unlawful detainer actions together,
the parties agreed to try the actions against Hart and Rodriguez
together as a bellwether trial.
After the landlord rested its case-in-chief, Hart and
Rodriguez moved for judgment pursuant to section 631.8 on the
grounds that (1) the house was not properly registered under the
applicable rent control ordinance, (2) the three-day notices were
defective because they overstated the amount of rent by (a)
demanding 10 months of “delinquent rent” when the house had
been properly registered for only one month and (b) not deducting
the amounts paid by the tenants for utilities, and (3) the three-
day notices were defective because they did not allege any specific
breach of the rental agreements. After weighing the evidence,
the trial court immediately denied the section 631.8 motion on
the last ground and, at the conclusion of the trial, denied the
motion on the remaining grounds.
Despite denying Hart’s and Rodriguez’s section 631.8
motion, the court ultimately ruled in their favor after finding that
the landlord did not “carry its burden of proof on numerous
required elements of proof.” Specifically, the court concluded that
(1) the three-day notices were “defective” because, by demanding
10 months’ rent with no deduction of tenant payments of utilities,

prematurely. In the second round, the trial court entered
judgment for the tenants after finding that the tenants had not
improperly excluded the landlord from the premises to conduct
repairs.

5
the notices “overstated” the amount of rent due, (2) the three-day
notices wrongly demanded payment by cashier’s check, postal
money order or cash, and (3) the house was never properly
registered under the applicable rent control ordinance and the
landlord did not offer to pay Hart and Rodriguez relocation fees.
3. Voluntary dismissal of remaining four unlawful
detainer actions
In December 2012, the landlord dismissed the unlawful
detainer actions against the remaining four tenants. The
dismissal came after the tenants’ attorney repeatedly requested a
dismissal and alternatively threatened to move for summary
judgment based on the outcome of the bellwether trial. Although
both the landlord and the landlord’s attorney explained that they
dismissed the remaining actions due to the belief that they would
get “the same result” as in the identical bellwether trial, the
landlord’s attorney later testified to her legal opinion that the
judgment in the bellwether trial rested on a “technical issue with
the three-day notice being overstated.”
II. Procedural Background
A. Malicious prosecution complaint
In September 2013, the tenants filed a malicious
prosecution action against the landlord and against the landlord’s
attorney (collectively, the landlord defendants) for filing the 2012
unlawful detainer actions.
B. Judgment on the pleadings as to Hart and
Rodriguez
The landlord defendants moved for judgment on the
pleadings, arguing that the trial court’s denial of the tenants’
section 631.8 motion in the bellwether trial amounted to a finding
by that court that the landlord had probable cause to bring the
unlawful detainer actions, which precluded liability for malicious

6
prosecution as a matter of law. (Hart, supra, 12 Cal.App.5th at p.
222.) The trial court granted the motion as to Hart and
Rodriguez. (Ibid.) We affirmed, reasoning that the trial court’s
decision not to grant judgment under section 631.8 in the
bellwether trial was a ruling “‘on the merits’” and was not
induced by “‘“the knowing use of false and perjured testimony,”’”
such that it constituted “conclusive” proof that the landlord had
probable cause to file and prosecute the underlying unlawful
detainer actions against Hart and Rodriguez. (Id. at pp. 225-
227.)
C. Trial on remaining tenants
Following remand from Hart and the death of Goldson, the
remaining three tenants—Vaughn, Hernandez and Johnson—
proceeded to trial on their malicious prosecution claim. Over
those tenants’ objections, the court bifurcated and held a bench
trial on the issues of whether (1) the landlord had probable cause
to file the 2012 unlawful detainer actions, and (2) the landlord’s
post-bellwether trial dismissal of the remaining unlawful
detainer actions constituted a “favorable termination” on the
merits.
After a three-day trial, the landlord defendants moved for
judgment under section 631.8.7 In a tentative and a final
statement of decision issued after Vaughn, Hernandez and
Johnson filed objections, the trial court granted the motion for
judgment. The court reaffirmed its prior ruling denying
summary judgment to the landlord defendants on the ground

7 Although the landlord defendants filed a written
withdrawal of their motion before the court issued a ruling, they
effectively withdrew their withdrawal by not objecting to the
court’s subsequent grant of the motion.

7
that the landlord did not have probable cause to file and
prosecute the 2012 unlawful detainer actions. In the court’s
view, the denial of the section 631.8 motion in the bellwether trial
did not mean that the landlord had probable cause to file and
prosecute the unlawful detainer actions against the tenants other
than Hart and Rodriguez because the trial against those other
tenants would “not necessarily be the same” because it “would be
informed by what happened in the” bellwether trial. However,
the court held that relief under section 631.8 was still warranted
because the landlord’s voluntary dismissal of its 2012 unlawful
detainer actions against those tenants did not constitute a
“favorable termination” of those actions “on the merits.”
Although the voluntary dismissals flowed from the unlawful
detainer court’s ruling for Hart and Rodriguez in the bellwether
trial, the court reasoned, that ruling was based on “procedural or
technical deficiencies in the [unlawful detainer] complaints
rather than a substantive deficiency” “because the landlord”
“could have corrected” those deficiencies by “prepar[ing] and
serv[ing]” a new “[three]-day notice that did not overstate the
amount of rent.”
The trial court entered judgment for the landlord
defendants on March 19, 2019.
D. Tenants’ appeal
On March 22, 2019, Vaughn, Hernandez and Johnson filed
a timely notice of appeal.
E. The landlord’s motion for attorney fees
Following the entry of judgment, the landlord filed a
motion seeking $465,238.75 in attorney fees based on an attorney
fees clause in the tenants’ leases with prior lessors. The trial
court denied the motion. In particular, the court ruled that (1)

8
the landlord defendants were not entitled to fees against three of
the tenants (namely, Goldson, Rodriguez and Johnson) because
they did not produce those tenants’ leases, thereby precluding an
award of contract-based attorney fees, and (2) the landlord
defendants were not entitled to fees against the remaining three
tenants (Vaughn, Hernandez and Hart) because the malicious
prosecution action was “not brought for any of the . . . purposes
enumerated in the attorney’s fees provision in [those tenants’]
rental agreements.”
F. The landlord’s appeal
The landlord filed a timely notice of appeal of the order
denying its attorney fees motion.
G. Consolidation
We subsequently consolidated the tenants’ appeal and the
landlord’s appeal.
DISCUSSION
I. Tenants’ Appeal
The three remaining tenants—Vaughn, Hernandez and
Johnson—argue that the trial court erred in granting the
landlord defendants’ section 631.8 motion for judgment. They
assert that the landlord’s voluntary dismissal of its unlawful
detainer actions against them was a favorable termination on the
merits, and that the trial court erred in concluding otherwise. As
explained below, we agree with the tenants on this point.
However, also as explained below, we affirm the trial court’s
grant of the section 631.8 motion because the landlord had
probable cause to file and prosecute its action against those
tenants as a matter of law.
A. The relevant law, generally
1. Section 631.8 motions for judgment

9
 If, after the plaintiff in a civil case rests its case-in-chief, a
trial court weighs the plaintiff’s evidence and concludes that “the
plaintiff [has] failed to sustain its burden of proof,” the court
“may”—under section 631.8—“make findings of fact” and “render
a judgment” in favor of the defense. (§ 631.8, subd. (a); People ex
rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139
Cal.App.4th 1006, 1012 (Cars 4 Causes); Pettus v. Cole (1996) 49
Cal.App.4th 402, 424 (Pettus).) It is entirely up to the court
whether to exercise this power, as the court may always “decline
to render any judgment until the close of all the evidence.”
(§ 631.8, subd. (a); Erika K. v. Brett D. (2008) 161 Cal.App.4th
1259, 1271 (Erika K.) [noting that a trial court has “absolute
discretion to deny a section 631.8 motion”].) When a court
exercises this discretionary power, we independently review its
legal rulings; we review its factual findings for substantial
evidence, although when a trial court grants a section 631.8
motion at the close of a plaintiff’s case, “the question . . . becomes
whether the evidence compels a finding in favor of [the
defendant] as a matter of law.” (Pettus, at pp. 424-425; Cars 4
Causes, at p. 1012; Ericksson v. Nunnink (2015) 233 Cal.App.4th
708, 732-733.)
2. Malicious prosecution
A plaintiff seeking a claim for malicious prosecution based
on the initiation of a prior lawsuit must prove that the prior
lawsuit was (1) terminated in the malicious prosecution plaintiff’s
favor, (2) “brought without probable cause,” and (3) “initiated
with malice.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th
767, 775 (Parrish); Sheldon Appel Co. v. Albert & Oliker (1989) 47
Cal.3d 863, 871 (Sheldon Appel).)

10
 B. Favorable termination
To establish the first, “favorable termination” element of a
malicious prosecution claim, the malicious prosecution plaintiff
must show both that (1) the prior lawsuit was terminated in her
favor (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 342
(Casa Herrera)), and (2) the termination “reflect[s] . . . [the
plaintiff’s] innocence of the . . . wrongful conduct” “alleged” in
that prior lawsuit (Sycamore Ridge Apartments LLC v. Naumann
(2007) 157 Cal.App.4th 1385, 1399 (Sycamore Ridge); Lackner v.
LaCroix (1979) 25 Cal.3d 747, 749 (Lackner)). In other words, the
termination must rest on a finding that the prior lawsuit
“‘“lack[ed] merit”’” or otherwise “‘“would not succeed”’” (Sycamore
Ridge, at p. 1399; Lackner, at p. 751; Eells v. Rosenblum (1995)
36 Cal.App.4th 1848, 1854 (Eells); Sierra Club Foundation v.
Graham (1999) 72 Cal.App.4th 1135, 1149 (Sierra Club)), rather
than on a “technical or procedural” “ground[].” (Lackner, at p.
750; Casa Herrera, at pp. 342-343.) The reason for this
requirement is straightforward: Only when the termination of
the prior lawsuit is on the merits does it “reflect[] . . . the
underlying defendant’s innocence.” (Eells, at p. 1855.) Any
doubts are resolved against the termination being on the merits.
(Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335 (Villa).)
When the prior lawsuit against the malicious prosecution
plaintiff is voluntarily dismissed, that dismissal is presumed to
be a favorable termination on the merits.8 (Gruber v. Gruber
(2020) 48 Cal.App.5th 529, 538 (Gruber); Sycamore Ridge, supra,
157 Cal.App.4th at pp. 1400-1401; Villa, supra, 4 Cal.App.4th at
p. 1335 [noting that voluntary dismissal is “considered” a

8 The landlord defendants deny the existence of any such
presumption, and in so doing, misstate the law.

11
favorable termination on the merits “[i]n most cases”].) The
presumption is grounded in the “‘natural assumption that one
does not simply abandon a meritorious action once instituted.’”
(Lackner, supra, 25 Cal.3d at p. 751.) But the presumption may
be rebutted by a showing that the dismissal was for reasons other
than the dim likelihood of success on the merits. (JSJ Limited
Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1524 [“[t]he
reasons for the dismissal of the action [may] be examined”].) In
assessing a party’s reasons for voluntarily dismissing the prior
lawsuit, the malicious prosecution court may examine not only
the testimony of the dismissing party but also what is
“reasonably suggested” by the circumstances of the dismissal
(Sycamore Ridge, at p. 1400), including whether the dismissal
came after adverse rulings against the dismissing party
(Contemporary Services Corp. v. Staff Pro, Inc. (2007) 152
Cal.App.4th 1043, 1057). Although the “element of favorable
termination” is generally a legal question “for the court to decide”
(Sierra Club, supra, 72 Cal.App.4th at p. 1149), a party’s reasons
for voluntarily dismissing a claim present “a question of fact”
(Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808).
In this case, the landlord’s voluntary dismissal of the
unlawful detainer actions against Vaughn, Hernandez and
Johnson is presumptively a favorable termination on the merits.
What is more, the landlord defendants have not rebutted that
presumption. The voluntary dismissal came after the landlord
lost the bellwether trial and after the remaining tenants
threatened to move for summary judgment on the basis of the
bellwether trial’s result. Indeed, both the landlord and the
landlord’s attorney admitted that the reason for the voluntary
dismissal was their belief that the outcome of the bellwether trial

12
would lead to the “same result” and “same decision” in the
remaining unlawful detainer actions. Consequently, there is no
doubt that the voluntary dismissal of these actions was a
reflection of their likely merit and, as such, constituted a
favorable termination on the merits.
The trial court reached a contrary conclusion, but did so by
relying on the wrong legal standard. As explained above, the
court reasoned that the voluntary dismissal of the unlawful
detainer actions against the non-bellwether tenants was
“procedural” and “technical” (rather than “on the merits”)
because the trial court’s judgment for the bellwether tenants
rested on defects in the three-day notices that “could [be]
corrected” by serving new three-day notices stating the correct
amount of delinquent rent. Under this reasoning, we observe,
any ruling that does not forever oust a claim from court would be
“procedural” and “technical” (and thus never subject to a
malicious prosecution claim).
We reject this reasoning for three reasons. First, it is
contrary to longstanding authority holding that a party’s ability
to seek relief in a new proceeding does not mean that the prior
proceeding was terminated for a “procedural” and “technical”
reason. (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1401 [a
party’s “option to file a new action . . . at the time she voluntarily
dismissed her claims” does not prevent the prior dismissal from
constituting a “favorable termination”]; Jaffe v. Stone (1941) 18
Cal.2d 146, 152 (Jaffe) [a party’s ability to initiate a “new
proceeding” does not mean that prior “proceeding is [not] finally
terminated” on the merits], italics omitted; Sierra Club, supra, 72
Cal.App.4th at p. 1151 [prior proceeding may be favorably
terminated on the merits even if it is “not . . . incapable of revival

13
or” does not “constitute a bar to further prosecution for the same
offense”]; see generally Hurgren v. Union Mut. Life Ins. Co.
(1904) 141 Cal. 585, 587 [“[t]he fact that . . . legal termination [of
the prior lawsuit] would not be a bar to another civil suit
. . . founded on the same alleged cause is no defense to the action
for malicious prosecution”].) This authority applies whenever the
prior action was an “independent, separate adversarial”
proceeding “having a procedural life of its own” (rather than
being a “subsidiary or purely defensive proceeding”) (Sierra Club,
at p. 1152; Camarena v. Sequoia Ins. Co. (1987) 190 Cal.App.3d
1089, 1094), and the 2012 unlawful detainer actions are
unquestionably “independent” of, and “separate” from, any
subsequent unlawful detainer actions that the landlord might
have elected to file. Second, the trial court’s reasoning, by
looking to the “legal tenability” of the rejected claim in future
lawsuits, is contrary to the authority holding that “‘the legal
tenability of the underlying action is not the standard by which to
judge whether the action was terminated in [[the] plaintiff’s]
favor.’” (Crowley v. Katleman (1994) 8 Cal.4th 666, 686.) Third,
the trial court’s reasoning, by treating the landlord’s failure to
follow the substantive rules for the three-day notices as
“technical” and “procedural” as long as it could re-file a lawsuit
that follows those rules, is contrary to the authority holding that
termination of a prior lawsuit due to the prior plaintiff’s deficient
prosecution of that prior lawsuit is neither a “technical” nor
“procedural” termination. (Lumpkin v. Friedman (1982) 131
Cal.App.3d 450, 455.)
The landlord defendants offer two further justifications for
affirming the trial court’s conclusion that the voluntary
dismissals were “technical” and “procedural.”

14
 First, the landlord defendants assert that a trial court’s
rejection of an unlawful detainer action due to defects with the
three-day notice—and hence a party’s subsequent decision to
voluntarily dismiss unlawful detainer actions based on similarly
defective notices for fear of the court’s likely rejection of those
actions—are “technical” and “procedural” regardless of whether
those defects can be corrected in the future. We reject this
assertion.
To begin, a three-day notice setting forth the correct
amount of delinquent rent is a substantive element of an unlawful
detainer action. (Borsuk v. Appellate Division of Superior Court
(2015) 242 Cal.App.4th 607, 610, 612-614, 616-617 (Borsuk);
Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16; Olivares v.
Pineda (2019) 40 Cal.App.5th 343, 354 (Olivares) [“landlord
cannot recover in an unlawful detainer based on a three-day
notice that seeks rent in excess of the amount due”]; Levitz
Furniture Co. v. Wingtip Communications (2001) 86 Cal.App.4th
1035, 1038, 1040 [same]; North 7th Street Associates v. Constante
(2016) 7 Cal.App.5th Supp. 1, 5 [same]; Ernst Enters. v. Sun
Valley Gasoline (1983) 139 Cal.App.3d 355, 359 [same]; see
§ 1161, subd. (2) [“three day[] notice” must “stat[e] the amount [of
rent] that is due”].) As such, a landlord’s failure to prove this
element is a failure of proof on the merits, rather than a
jurisdictional defect or a defect in pleading that might be
considered “procedural” or “technical.” (Borsuk, at pp. 612-613
[service of a three-day notice is not “jurisdictional,” and decisions
to the contrary are incorrect]; but see Delta Imps. v. Mun. Court
(1983) 146 Cal.App.3d 1033, 1037 [implying that service of three-
day notice is jurisdictional because it may be remedied in a
motion to quash]; see generally Sycamore Ridge, supra, 157

15
Cal.App.4th at p. 1400 [termination of prior lawsuit due to lack of
“jurisdiction” is “technical” and “procedural”]; Jaffe, supra, 18
Cal.2d at pp. 150-151 [termination of prior lawsuit due to “defects
in the complaint” is “technical” and “procedural”].) This
conclusion is reinforced by the historical distinction between “the
elements of the action” and the “procedural prerequisites to
asserting them.” (Robbins v. Blecher (1997) 52 Cal.App.4th 886,
895.) Although, as the landlord defendants point out, the service
of an accurate three-day notice is “procedural” in nature, this
observation is unhelpful because an unlawful detainer action is
itself a statute-based procedural device for facilitating the
summary transfer of possession of property between persons who
may or may not have a contract between them. (E.g., People v.
Little (1983) 143 Cal.App.3d Supp. 14, 18 [“The purpose of the
unlawful detainer statutes is procedural”].)
Moreover, accepting the gist of this argument—namely,
that the three-day notice and other elements of unlawful detainer
actions are all “procedural protections against summary
eviction”—would always preclude a finding that an unlawful
detainer action is resolved in a tenant’s favor “on the merits” and
thus preclude all malicious prosecution actions against landlords.
That is not the law. (Oviedo v. Windsor Twelve Properties, LLC
(2012) 212 Cal.App.4th 97, 111 [entertaining malicious
prosecution action based on a prior unlawful detainer action];
Olivares, supra, 40 Cal.App.5th at p. 347 [same].) Nor should it
be, as it would exempt any and all landlords from liability for
maliciously prosecuting unlawful detainer actions.
Second, the landlord defendants contend that substantial
evidence supports the trial court’s finding that their reason for
voluntarily dismissing the remaining four unlawful detainer

16
actions was “technical” and “procedural.” We reject this
contention. As an initial matter, and as discussed above, the trial
court’s finding rests upon an incorrect legal standard; as such, its
finding is entitled to no weight. Applying the correct legal
standard, there is no evidence—let alone substantial evidence—
to support a finding that the dismissal was based on anything
other than the lack of likely success on the merits. The landlord
defendants point to their unlawful detainer lawyer’s testimony at
trial that the voluntary dismissals were “technical” and
“procedural.” This testimony is nothing more than an expert
opinion on a legal issue that is inadmissible and thus cannot
constitute substantial evidence. (Downer v. Bramet (1984) 152
Cal.App.3d 837, 841 [“an ‘expert’” may not “testify to legal
conclusions in the guise of expert opinion” and “[s]uch legal
conclusions do not constitute substantial evidence”].) What is
more, that opinion was informed by an unpublished appellate
decision that, as we discussed above, employed the wrong legal
standard. The landlord defendants also point to the absence of a
“prevailing party” attorney fee award for the tenants in the
bellwether trial judgment. This is doubly irrelevant because (1)
the landlord defendants have not included the trial court’s
attorney fees order, so we do not know the court’s reasons for not
awarding attorney fees and, more broadly, (2) the prior court’s
determination about whether the tenants were “prevailing
parties” turns on a different standard (namely, whether the
tenants obtained the “greater relief” (Civ. Code, § 1717, subd.
(b)(1))) than the standard governing whether a voluntary
dismissal is “technical” or “procedural” rather than “on the
merits.”

17
 In light of our analysis, we have no occasion to reach the
tenants’ several alternative arguments for reversing the trial
court’s favorable termination finding—namely, that the court
should not have resolved factual issues itself, erred in allowing
the landlord’s unlawful detainer lawyer to testify to an
unpublished appellate decision, did not treat as dispositive the
prior anti-SLAPP appellate ruling finding favorable termination
on the merits, and did not allow the tenants to present rebuttal
evidence.
* * *
Our conclusion that the trial court erred in finding that the
voluntary dismissals did not constitute “favorable terminations”
on the merits is not the end of our analysis. As a general rule, we
review a trial court’s ultimate ruling—here, judgment in favor of
the landlord defendants—not just its reasoning; this is why we
generally affirm a ruling as long as it is valid on any ground.
(People v. Mickey (1991) 54 Cal.3d 612, 655; People v. Zamudio
(2008) 43 Cal.4th 327, 351, fn. 11.) And even where, as here, a
trial court has the absolute discretion to refuse to enter judgment
(Erika K., supra, 161 Cal.App.4th at p. 1271), and has declined to
enter judgment on an alternative ground, we may still affirm if
remanding the case would serve no purpose because the “outcome
of [such] a remand is a foregone conclusion” due to the plaintiff’s
inability to “establish” an entitlement to relief. (Choate v. Celite
Corp. (2013) 215 Cal.App.4th 1460, 1468; Ena North Beach, Inc.
v. 524 Union Street (2019) 43 Cal.App.5th 195, 215; People ex rel.
Dept. of Transportation v. McNamara (2013) 218 Cal.App.4th
1200, 1209; Stearman v. Centex Homes (2000) 78 Cal.App.4th
611, 625; see generally §§ 43 [appellate court has power to
“affirm, reverse, or modify any judgment . . . and . . . direct the

18
proper judgment . . . to be entered”], 906 [same].) Because, as
discussed below, the trial court is compelled as a matter of law to
find that the landlord’s unlawful detainer actions were supported
by probable cause, the outcome of any remand is a foregone
conclusion and we must affirm the judgment on this alternative
ground.
C. Probable cause
To establish the second element of a malicious prosecution
claim that the prior lawsuit was “brought without probable
cause,” the malicious prosecution plaintiff must show that no
“reasonable attorney would have thought the [lawsuit to be
legally and factually] tenable.” (Sheldon Appel, supra, 47 Cal.3d
at p. 886; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th
811, 817 (Wilson), superseded on other grounds by § 425.16, subd.
(b)(3).) “A prior action was not initiated without probable cause
merely because it was ultimately found to lack merit; it was
initiated without probable cause only if ‘all reasonable lawyers’
would ‘agree’ that the suit, at the time of filing, was ‘totally and
completely without merit’ [based on] . . . ‘the facts known to the
defendant’ ‘at the time the suit was filed.’” (Gruber, supra, 48
Cal.App.5th at p. 538, quoting Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal.4th 728, 743, fn. 13, and Sheldon Appel,
at p. 878.) Although whether the facts known to the defendant
constitute probable cause is a question of law for the court
(Wilson, at p. 825), what those facts were is a factual question
that is for the court only if they are undisputed (Sheldon Appel,
at pp. 875, 877, 881).
In Hart, supra, 12 Cal.App.5th 218, we held that a trial
court’s denial of a section 631.8 motion in a prior lawsuit, by
virtue of the interim adverse judgment rule, “conclusive[ly]”

19
establishes that the prior plaintiff had probable cause to bring
that lawsuit, and thus forecloses malicious prosecution liability
against the prior plaintiff. (Id. at pp. 221, 227; see generally
Parrish, supra, 3 Cal.5th at pp. 776-777 [reaffirming validity of
“interim adverse judgment rule”].)9 As noted above, Hart grew
out of this very case, but involved only the two malicious
prosecution plaintiffs—Hart and Rodriguez—who were the
unlawful detainer defendants in the bellwether trial in which the
section 631.8 motion was denied. We now confront the question
left unaddressed in Hart: Does the trial court’s finding of
probable cause as to Hart and Rodriguez apply with equal force
to the remaining three unlawful detainer defendants?
The answer is yes, and that answer is compelled by the
doctrine of collateral estoppel.10 Under that doctrine, a ruling on

9 We categorically reject the tenants’ suggestion that Hart
was wrongly decided; if anything, this suggestion is further proof
of these parties’ seeming intent to relitigate the same issues ad
infinitum.

10 Although the trial court’s ruling finding that the landlord
had probable cause to bring unlawful detainer actions against
Hart and Rodriguez occurred in the course of the same malicious
prosecution proceeding before us now (ostensibly making it
appropriate to apply the law of the case doctrine because this is
technically the same malicious prosecution case), we elect to rely
instead on the doctrine of collateral estoppel. We do so because a
malicious prosecution claim is by definition premised on what
happened in earlier litigation and here, that earlier litigation
consists of six separately filed unlawful detainer actions against
six different tenants. In such an instance, each prior action has a
different party and potentially different issues, and the more
probing inquiry demanded by the collateral estoppel doctrine
specifically requires us to account for those potential differences.

20
an issue in a prior proceeding can be deemed to be binding in the
current proceeding if (1) “the issue sought to be precluded from
relitigation [is] identical to that decided in [the] former
proceeding,” (2) the issue was “actually litigated in the former
proceeding,” (3) the issue was “necessarily decided in the former
proceeding,” (4) “the decision in the former proceeding [is] final
and on the merits,” and (5) “the party against whom preclusion is
sought [is] the same as, or in privity with, the party to the former
proceeding.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341
(Lucido).) Even if these five prerequisites are met, the decision
whether a prior ruling should be given preclusive effect is
entrusted to the trial court’s discretion, and turns on whether
doing so “would be fair to the parties and constitutes sound
judicial policy” in light of the “public policies underlying collateral
estoppel—[namely,] preservation of the integrity of the judicial
system, promotion of judicial economy, and protection of litigants
from harassment by vexatious litigation.” (Id. at p. 343; Mooney
v. Caspari (2006) 138 Cal.App.4th 704, 717-718.)
Under the doctrine of collateral estoppel, the trial court’s
earlier finding that the landlord had probable cause to bring its
unlawful detainer actions against Hart and Rodriguez applies
with equal force to the other tenants.
All five prerequisites of the doctrine apply. As to the first
prerequisite, issues are “identical” if “‘identical factual
allegations’” are “at stake.” (Lucido, supra, 51 Cal.3d at p. 342.)
Here, they are: But for the tenants’ names and the amount of
monthly rent, the landlord filed identical complaints against all
six tenants living in the same house and sought the same 10

21
months’ worth of delinquent rent;11 the tenants filed identical
answers; and the parties have otherwise stipulated or conceded
that the facts were identical.12 In declining to grant judgment
based on a finding that the landlord defendants had probable
cause, the trial court focused—not on the underlying facts—but
rather on whether the two trials (that is, the bellwether trial and
the subsequent trial) would be identical. This was the wrong
focus, not only under the doctrine of collateral estoppel, but also
under the law of malicious prosecution, which turns on whether
the prior lawsuit was brought with probable cause and not on
whether the resulting trials would play out the same way.13 As
to the second, third and fourth prerequisites, there is no question
that the issue of probable cause was actually and necessarily
litigated “on the merits” by Hart and Rodriguez before the trial

11 For the first time at oral argument, the tenants’ attorney
argued that the facts regarding each tenant were different. We
reject this argument as wholly inconsistent with the tenants’
repeated representations to the trial court in this case that “the
facts are all the same” for each tenant, as well as the whole
reason for having a bellwether unlawful detainer trial to
determine what to do with the remaining tenants.

12 These items are properly before this court. (Evid. Code,
§§ 452, subd. (c), 459.) Contrary to what the tenants assert,
whether these items were also formally admitted into evidence at
the malicious prosecution trial is of no consequence.

13 What is more, this erroneous focus is unsupported by the
evidence at trial: The landlord’s attorney testified that had the
remaining four unlawful detainer actions gone to trial, the
landlord would have put on the “[e]xact same” evidence as the
landlord did in the bellwether trial.

22
court entered judgment on the pleadings, and that the case was
litigated to final judgment as to them.14 As to the fifth
prerequisite, the parties are not the same because Vaughn,
Hernandez and Johnson were not part of the Hart and Rodriguez
judgment on the pleadings, but they are in privity with one
another. Privity is a flexible concept that asks whether the
“‘relationship between the party to be estopped and the
unsuccessful party in the prior litigation . . . is “sufficiently close”
so as to justify application of the doctrine of collateral estoppel.’
[Citations.]” (People v. Sims (1982) 32 Cal.3d 468, 486-487,
superseded by statute on other grounds as stated in In re
Kocontes (2016) 244 Cal.App.4th 1229, 1246.) Because all six
unlawful detainer actions involved identical facts, because all six
tenants joined together in a single malicious prosecution action
against the landlord defendants, and because Hart and Rodriguez
had the same incentive to litigate this issue as the remaining
tenants, the relationship between all of the tenants is
“sufficiently close.”
Precluding re-litigation of the issue of probable cause is
also mandated here as a matter of discretion. That is because
applying the probable cause-based judgment as to Hart and
Rodriguez to the other tenants is “fair,” promotes judicial
economy by avoiding re-litigation of a thoroughly litigated issue,
and protects the parties—and, frankly, the courts—from
seemingly endless attempts to litigate, re-litigate, and re-re-

14 As a result, the tenants’ argument—raised for the first time
at oral argument—that collateral estoppel cannot apply to a
“procedural” ruling (that is, one not on the merits) is not only
waived, but is also irrelevant.

23
litigate the same issues over and over again. Conversely, not
applying collateral estoppel here would disserve all of these goals.
The tenants offer four arguments to the contrary.
First, the tenants argue that the landlord defendants
cannot rely on the doctrine of collateral estoppel because they
raised that issue in their summary judgment motion, lost on that
issue, and did not file a protective cross-appeal. Although a
litigant’s failure to file a cross-appeal precludes that litigant from
seeking relief beyond that at issue in the main appeal (e.g.,
Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 831-
832), the landlord defendants are not asking us to overturn the
trial court’s summary judgment ruling. Instead, we are being
asked to decide whether the trial court correctly granted the
landlord defendants’ section 631.8 motion, which in turn presents
the question whether the court’s prior finding of probable cause
to prosecute the unlawful detainer actions against Hart and
Rodriguez applies to the unlawful detainer actions against the
other tenants because the issues in all of those actions are
identical. This question is properly before us as part of the
tenants’ appeal; whether it was also part of the landlord
defendants’ summary judgment motion is therefore irrelevant.
Second, the tenants suggest that the issues in all six
unlawful detainer actions are not identical because, in a June
2012 order made prior to the bellwether trial, a judge ruled that
there were “insufficient common questions of law and fact at this
time among the six” unlawful detainer actions to consolidate
them. (Italics added.) This suggestion is not well taken. A
month after this ruling, the trial court consolidated Hart’s and
Rodriguez’s cases in order to conduct the bellwether trial, and the
parties now either stipulate or concede that the issues in all six

24
unlawful detainer actions are identical. We accordingly reject the
tenants’ suggestion that the explicitly provisional view of the trial
court regarding the similarity of issues made early on in the
unlawful detainer proceedings thereafter precludes the trial
court, this court, or the parties themselves from coming to a
different view.
Third, the tenants assert that the interim adverse
judgment rule cannot be applied to them because the landlord
defendants did not take them to trial in the unlawful detainer
actions, let alone obtain a judgment. We need not determine
whether this assertion is true because it is ultimately beside the
point. We are applying the doctrine of collateral estoppel to the
trial court’s prior finding in Hart that the landlord defendants
had probable cause to bring the unlawful detainer actions against
Hart and Rodriguez. The context in which that finding was
made—that is, as the basis for applying the interim adverse
judgment rule to Hart and Rodriguez—does not alter that finding
or preclude its application to the question of whether the landlord
defendants had probable cause to bring the unlawful detainer
actions against the other tenants at issue here.
Lastly, the tenants argue that, if the doctrine of collateral
estoppel is relevant, it should apply—not to the trial court’s
judgment on the pleadings as to Hart and Rodriguez—but rather
to the trial court’s earlier findings, when denying the landlord
defendants’ anti-SLAPP motions (§ 425.16 et seq.), that the
tenants had made a prima facie showing of favorable termination
and lack of probable cause. Although the trial court made such a
finding and we affirmed it on appeal (Vaughn v. Darwish (May
27, 2015, B253694) 2015 Cal.App. Unpub. LEXIS 3665, at *12-
*18 [nonpub. opn.]), our Legislature has declared that such

25
determinations made in the course of anti-SLAPP litigation have
no collateral estoppel effect and, indeed, are “not [even]
admissible in evidence at any later stage of the case, or in any
subsequent action.” (§ 425.16, subd. (b)(3).)
The tenants both ignore this statutory bar, and
simultaneously offer four arguments to circumvent it. None of
them has merit. First, they cite language from cases reciting that
“‘law of the case may apply’” to “denial of an anti-SLAPP motion”
(Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1153; Hotels
Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th
336, 356), but each of these cases draws this language from a case
that pre-dates section 425.16, subdivision (b)(3). This attempt to
mislead fails. Second, the tenants argue that this statute cannot
override the doctrine of collateral estoppel or, for that matter, law
of the case. Again, they are wrong. (California Logistics, Inc. v.
State of California (2008) 161 Cal.App.4th 242, 250 [“the
Legislature may limit application of the doctrine [of collateral
estoppel] for public policy purposes”]; Renee J. v. Superior Court
(2002) 96 Cal.App.4th 1450, 1455 [statute may “provide[] an
exception to the doctrine of law of the case”].) Third, the tenants
suggest that section 425.16, subdivision (b)(3)’s bar only applies
when the prior anti-SLAPP ruling is used “to establish liability,”
and thus does not apply where, as here, a party (here, the
tenants) is using the prior anti-SLAPP ruling “defensively.” This
suggestion ignores the plain text of the statute (which declares
any prior anti-SLAPP ruling “[in]admissible in evidence”
regardless of the purpose for which it is offered) (§ 425.16, subd.
(b)(3)), and ignores that the tenants’ success in beating back the
adverse section 631.8 ruling at issue here ultimately assists them
in establishing the landlord defendants’ liability for malicious

26
prosecution. Lastly, the tenants assert that section 425.16,
subdivision (b)(3)’s bar to the application of collateral estoppel
can, at most, apply to trial courts and not appellate courts. If
accepted, this argument would mean that collateral estoppel
would not initially apply to a trial court’s anti-SLAPP findings
but would apply once those findings are appealed, which is likely
to be often given that our Legislature specifically created a right
to immediately appeal such rulings (§ 425.16, subd. (i)). We
sincerely doubt the Legislature enacted a bar to collateral
estoppel that could be so easily—and regularly—evaded.
* * *
In light of our analysis, we have no occasion to reach the
landlord defendants’ alternative argument for reversal—namely,
that one of the tenants’ civil lawsuits awarded relief duplicative
of the relief sought in the malicious prosecution action.
II. The Landlord’s Appeal
The landlord argues that the trial court erred in denying its
post-judgment motion for attorney fees under the three written
leases it actually produced—that is, the leases for Vaughn,
Hernandez and Hart.15
California follows the so-called “American rule” when it
comes to attorney fees: Parties in civil litigation bear their own
unless a statute or contract provides otherwise. (§ 1021; Eden
Township Healthcare Dist. v. Eden Medical Center (2013) 220
Cal.App.4th 418, 425.) If the parties to a contract agree to shift
liability for attorney fees, our task is to give effect to their
contract. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154

15 To the extent it matters, the landlord does not argue that
the trial court erred in not awarding fees as to the three tenants
for whom it produced no written lease.

27
Cal.App.4th 547, 577.) Although we generally review a trial
court’s denial of contract-based attorney fees for an abuse of
discretion (Walker v. Ticor Title Co. of California (2012) 204
Cal.App.4th 363, 370), we independently review its interpretation
of that contract where, as here, there is no extrinsic evidence to
consider (Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213
Cal.App.4th 263, 273, overruled on other grounds as stated in
Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017)
3 Cal.5th 744, 756).
The trial court did not abuse its discretion in denying the
landlord’s motion for attorney fees because the attorney fees
clauses in the three leases—all of which are identical—do not
provide for the award of attorney fees when the landlord prevails
in a malicious prosecution action brought in response to an
earlier unlawful detainer action. Those clauses provide that a
“prevailing party” is entitled to his “costs,” including “reasonable
attorney’s fees,” only “in an action brought” (1) “for the recovery
of rent or other moneys due or to become due under this lease,”
(2) “by reason of a breach of any covenant herein contained,” (3)
“for the recovery of the possession of said premises,” (4) “to
compel the performance of anything agreed to be done herein,” (5)
“to recover for damages to said property,” or (6) “to enjoin any act
contrary to the provisions hereof.” The tenants’ malicious
prosecution action is not an “action brought” to achieve any of
these six categories of relief; as such, the attorney fees clause in
these leases is, by its own terms, inapplicable.
Seeking to avoid the narrow language of these clauses, the
landlord (1) cites several cases where attorney fees were
awarded; (2) argues more generally that attorney fees clauses can
reach tort claims as well as contract claims, can reach

28
intertwined claims, and can reach implied covenants; and (3)
asserts that the tenants are judicially estopped from contesting
the award of attorney fees because two of the tenants (Vaughn
and Hernandez) were awarded fees under those clauses in the
very first round of unlawful detainer litigation. These arguments
lack merit. The cases the landlord cites all involve far broader
attorney fees clauses. (E.g., Chinn v. KMR Property Management
(2008) 166 Cal.App.4th 175, 183, overruled on other grounds as
stated in DeSaulles v. Community Hospital of Monterey
Peninsula (2016) 62 Cal.4th 1140; Lockton v. O’Rourke (2010) 184
Cal.App.4th 1051, 1075-1076; Allstate Ins. Co. v. Loo (1996) 46
Cal.App.4th 1794, 1799.) It does not matter whether other
attorney fees clauses can reach tort claims, intertwined claims, or
implied covenants because the clauses in this case do not. What
is more, the fact that the unlawful detainer actions were the
singularity from which this universe of litigation has exploded
does not render all subsequent litigation subject to the attorney
fees clauses in the leases when that litigation is outside the plain
language of those clauses. And the prior award of attorney fees
in the first round of unlawful detainer litigation has no estoppel
effect: The award in that first round fell squarely within the
clause’s scope because an unlawful detainer case is an action
brought to recover rent or possession of the premises, while the
malicious prosecution action, as noted above, falls outside the
clause’s scope.
* * *
In light of our analysis, we have no occasion to reach the
tenants’ alternative arguments in favor of affirming the trial
court’s attorney fees ruling.

29
 DISPOSITION
The judgment for the landlord defendants and post-
judgment order denying the landlord’s attorney fees are both
affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, Acting P. J.
ASHMANN-GERST

_________________________, J.
CHAVEZ

30