Filed 1/11/23 Barbaccia v. GBR Magic Sands MHP CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

LOUIS P. BARBACCIA, SR., as Trustee, 

etc. et al., 

Plaintiffs and Respondents

v.

GBR MAGIC SANDS MHP, LLC,

Defendant and Appellant.

B322596

(Santa Clara County

Super. Ct. No. 

17CV313947)

 

ORDER MODIFYING 

OPINION AND 

DENYING PETITIONS 

FOR REHEARING 

[NO CHANGE IN 

JUDGMENT]

 

THE COURT:

The opinion filed December 16, 2022, and not certified for 

publication, is modified as follows:

1. On page 46, second paragraph, line 1, the word “has” is 

changed to “may have,” and on line 2, the word 

“uncontradicted” is deleted, so that the sentences read:
2

GBR may have a point, but not one that warrants reversal. 

GBR presented evidence the 2007 lease agreements and related 

documents describe the property encumbered by the leases as 

including Parcel Eight.

2. On page 46, lines 10-11, delete the sentence:

Therefore, “all of” lot 26, as described in the leases, includes 

Parcel Eight.

3. On pages 46-47, footnotes 21 and 22 are deleted. 

The petitions for rehearing are denied. 

This order does not change the appellate judgment.

 PERLUSS, P. J. SEGAL, J. 

FEUER, J.
Filed 12/16/22 Barbaccia v. GBR Magic Sands MHP CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

LOUIS P. BARBACCIA, SR., as 

Trustee, etc. et al.,

Plaintiffs and Respondents

v.

GBR MAGIC SANDS MHP, LLC,

Defendant and Appellant.

B322596

(Santa Clara County

Super. Ct. No. 17CV313947)

 

 

APPEAL from a judgment of the Superior Court of Santa 

Clara County, Thang N. Barrett, Judge. Reversed with 

directions.

Morgan Franich Fredkin Siamas & Kays, William Siamas, 

David A. Kays and Mark B. Fredkin for Defendant and 

Appellant.

Hopkins & Carley, David W. Lively, Allonn E. Levy and 

Ryan Cunningham; Gates Eisenhart Dawson, Marc A. Eisenhart

and James L. Dawson for Plaintiffs and Respondents.
2

INTRODUCTION

Since 2007 brothers Louis P. Barbaccia, Sr. (Lou) and Cyril

Barbaccia (Cy) (now deceased), their two sisters, and their 

respective successors, have been litigating in Santa Clara County 

Superior Court over the rights to a 20-acre property in San Jose. 

Lou, Cy, and their parents originally obtained the property in the 

1960s, with Lou and Cy collectively holding an undivided one-half 

interest in the property and the parents holding the other 

undivided one-half interest. In 1963 the parents agreed to lease 

their interest to Lou and Cy under a 98-year lease. The brothers 

subsequently built a mobilehome park on the property.

By 2010, after a series of transactions and lawsuits,

Josephine Pecoraro (Cy and Lou’s sister), Catherine Pecoraro (Cy 

and Lou’s niece; the daughter of their deceased sister, Rita), Lou, 

and Loubar LLC—an entity created by Lou—collectively held, in

various shares, the one-half interest originally owned by Cy and 

Lou’s parents. GBR Magic Sands MHP, LLC—an entity created 

by Cy to operate the mobilehome park—held the right to lease

that one-half interest under the 1963 lease. Loubar separately 

owned the collective one-half interest originally owned by the 

brothers, which GBR also held the right to lease under two 

separate agreements. 

In 2010 Josephine and Catherine (backed by Lou) filed an 

action in Santa Clara County Superior Court to cancel the 

1963 lease and to quiet title to the one-half undivided interest 

originally owned by Cy and Lou’s parents. (Pecoraro v. GBR 

Magic Sands MHP, LLC (Super. Ct. Santa Clara County, 2013, 

No. 1-10-CV-186621) (the Pecoraro action).) Josephine and 

Catherine prevailed. The trial court in that action ruled Cy
3

obtained the 1963 lease from his parents by “undue influence,”

and in 2013 the court entered a judgment canceling the lease, 

quieting title in favor of Josephine, Catherine, and Lou, and 

ordering GBR to relinquish possession of the one-half interest in 

the property originally owned by Cy and Lou’s parents and 

previously encumbered by the 1963 lease. In October 2016 the 

Sixth District Court of Appeal affirmed that judgment. (See 

Pecoraro v. Barbaccia (Oct. 18, 2016, H040008, H040222) 

[nonpub. opn.].) 

GBR, however, did not relinquish possession of the

property. It continued to operate the mobilehome park and lease

mobilehome lots on the property to tenants. In 2018 Loubar,

Lou, Catherine, and Vivian Martorana (the Loubar plaintiffs)1

filed this action against GBR seeking mesne profits from GBR’s

continued possession of the Loubar plaintiffs’ undivided one-half 

interest in the property.

2 GBR, in turn, filed a cross-complaint 

1 Josephine died in 2016, and Martorana sued as trustee of 

the Josephine Pecoraro Trust. Lou similarly sued as trustee of 

the Louis P. Barbaccia Sr. Inter Vivos Trust. 

2 Mesne profits are recoverable from a trespasser or other 

wrongful possessor of land and include the “value of the rents, 

issues and profits of the land during a certain period.” (Haggin v. 

Clark (1875) 51 Cal. 112, 115; see Pocono Realty Co. v. Lamar 

Advertising Co. (3d Cir. 2010) 395 Fed.Appx. 903, 904 [mesne 

profits are “[t]he profits of an estate received by a tenant in 

wrongful possession between two dates”].) “Mesne,” pronounced 

“mean,” is a medieval French legal term meaning “intermediate.” 

(Davis v. L.N. Dantzler Lumber Co. (1923) 261 U.S. 280, 283; 

Larsson v. Grabach (2004) 121 Cal.App.4th 1147, 1151; ODonnell 

v. Harris County, Texas (S.D.Tex. 2017) 251 F.Supp.3d 1052, 

1070, fn. 6.)
4

seeking declaratory relief to allow it to occupy the entire property

and continue operating the park. Following a nonjury trial, the 

trial court ruled in favor of the Loubar plaintiffs and awarded 

them over $5 million in damages. 

GBR makes several arguments on appeal, which generally

involve some version of the argument that the judgment in the 

Pecoraro action quieting title to the Loubar plaintiffs’ one-half

interest had no practical effect on GBR’s right to possess the

property. As we explain, those arguments lack merit, and GBR is 

liable for damages caused by continuing to possess or occupy the 

property to the exclusion of the Loubar plaintiffs after the date 

the Pecoraro judgment became enforceable. GBR may not 

relitigate whether it has any rights in the Loubar plaintiffs’ onehalf interest.

GBR, however, is partially correct on one of its arguments:

Claim preclusion bars the Loubar plaintiffs from recovering 

damages from GBR’s possession of the property before the 

judgment in the Pecoraro action became enforceable, which as we 

explain was not until the Sixth District Court of Appeal issued its

remittitur on January 12, 2017. If the Loubar plaintiffs wanted 

to seek damages for GBR’s possession of the property before that 

date, they had to seek those damages in the Pecoraro action. 

Thus, by awarding the Loubar plaintiffs damages for GBR’s 

possession of the property as far back as August 2012, the trial 

court erred.

GBR is also correct on an argument that affects part of the 

property at issue in this appeal: Substantial evidence did not 

support the trial court’s ruling in favor of the Loubar plaintiffs on 

their third cause of action, in which the Loubar plaintiffs sought 

damages for GBR’s alleged possession of a vacant lot on land the 
5

parties refer to as Parcel Eight. The Loubar plaintiffs did not

prove GBR occupied or excluded the Loubar plaintiffs from Parcel 

Eight during the relevant time period. 

Therefore, we reverse the judgment and direct the trial 

court to conduct a new trial on damages, limited to damages 

incurred after January 12, 2017. After the new trial, the court is 

directed to enter a new judgment that, among other things, finds

in favor of GBR on the Loubar plaintiffs’ third cause of action and

in favor of the Loubar plaintiffs on GBR’s cross-complaint.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Property

Philip and Josephine Greco Barbaccia had four children: 

Cy, Lou, Josephine, and Rita. In December 1960 the parents 

purchased a 20-acre orchard in San Jose (the Property) and

transferred an undivided one-fourth interest in the Property to 

each of Cy and Lou. Cy and Lou formed a business partnership, 

which held their collective one-half interest (the partnership’s 

one-half interest). The parents kept the remaining one-half

interest. Over the next few years, Cy and Lou bought 36 

additional acres adjacent to the Property. In 1963 the parents 

leased their one-half interest in the Property to the brothers for

98 years. 

The Property contains three parcels: Parcel One, Parcel 

Three,3 and Parcel Eight. Cy and Lou developed the Magic Sands 

3 It appears Parcel Three was not part of the original 20 

acres the parents purchased. At some point the City of San Jose 

initiated a condemnation proceeding and obtained a portion of 
6

Mobile Home Park on Parcel One, Parcel Three, and the adjacent 

36 acres. For many years they leased Parcel Eight to Standard 

Oil Company, and then to Standard Oil’s successor, Chevron 

USA, for a gas station. 

After both parents died, Cy, Lou, Josephine, and Rita’s two 

children, Anthony and Catherine Pecoraro, inherited the parents’

interest in the Property: Cy, Lou, and Josephine each inherited 

an undivided one-eighth interest in the Property (one-fourth of 

the parents’ one-half interest), and Catherine and Anthony each 

inherited an undivided one-sixteenth interest in the Property 

(one-eighth of the parents’ one-half interest.)4 Anthony sold his

interest to Cy, giving Cy an undivided three-sixteenth interest. 

The collective one-half interest in the Property that Cy, Lou, 

Josephine, and Catherine obtained from the parents remained 

encumbered by the 1963 lease. Cy and Lou’s company, Barbaccia 

Properties L.P., held the partnership’s one-half interest, which 

was not encumbered by the 1963 lease.

the original 20 acres, but added adjacent land to the property the 

County of Santa Clara’s records and parties refer to as Parcel 

Three. 

4 Catherine and Anthony inherited their interests through 

their mother, Rita, who predeceased her mother, Josephine Greco 

Barbaccia. Anthony and Catherine have the same last name as 

their aunt, Josephine Pecoraro, because both Josephine and Rita 

married men with the last name Pecoraro. 
7

B. Loubar Obtains Cy’s Interest in the Property, Plus the 

Partnership’s One-half Interest, Pursuant to a 

Partition

Cy and Lou’s partnership came to an end. In 2006 Cy and 

new business partners purchased the partnership’s onehalf interest from Barbaccia Properties. Cy then orchestrated a 

series of transfers and leases between various entities with which

he was affiliated. An entity called MHP Roll-Up ultimately 

obtained the partnership’s one-half interest, and in 2007 GBR 

obtained the right to lease the partnership’s one-half interest

under two lease agreements. These 2007 leases, which were 

essentially between entities affiliated with Cy and gave GBR the 

right to lease a one-half interest in the Property, figure 

significantly in the subsequent litigation among the family 

members. The 2007 leases, combined with GBR’s right to lease 

the other one-half interest in the Property under the 1963 lease, 

gave GBR the right to operate the mobilehome park on the entire 

property.

But that would change, in two steps.

Step one: Lou, Josephine, and Catherine filed an action to 

partition the Property, and the parties stipulated to a procedure 

to sell the Property. Lou, Josephine, and Catherine, collectively, 

submitted a successful bid, and in November 2010 the court 

entered an order confirming the sale. After the sale the interests 

of Lou, Josephine, and Catherine remained unchanged, while 

Loubar obtained all of Cy’s interest in the Property, plus the 

partnership’s one-half interest. At that point, the ownership 

interests in the Property were as follows: Loubar owned the 

partnership’s undivided one-half interest and Loubar, Lou, 

Josephine, and Catherine owned the remaining undivided three-
8

sixteenth, one-eighth, one-eighth, and one-sixteenth interests, 

respectively. GBR continued to have the right to operate the 

park under the three leases: the two 2007 leases, which granted 

GBR the right to lease the partnership’s one-half interest (now 

owned by Loubar), and the 1963 lease, which granted GBR the 

right to lease the one-half interest originally owned by Cy and 

Lou’s parents (and now owned by the Loubar plaintiffs).

C. Catherine and Josephine Successfully Sue To Cancel 

the 1963 Lease and Quiet Title to the Loubar 

Plaintiffs’ Collective One-half Interest

Step two: In 2010 Josephine and Catherine, with Lou’s 

support and funding, filed the Pecoraro action against GBR and 

Cy asserting, among other things, a cause of action seeking to 

cancel the 1963 lease and a cause of action to quiet title to the 

Loubar plaintiffs’ interests in the Property free and clear of any 

adverse claims.5 Josephine and Catherine alleged that, when Cy, 

Lou, and their parents (i.e., Philip and Josephine Greco

Barbaccia) entered into the lease almost 50 years ago, Cy 

“occupied an intimate and confidential relationship with his 

parents,” “exert[ed] undue influence” on them, and “fraudulently 

obtain[ed]” the lease, the terms of which “were unfair” and 

“substantially below market value . . . .” Initially, Josephine and 

Catherine also sought damages for Cy and GBR’s operation of the 

mobilehome park on the Property pursuant to the 1963 lease, but 

during the litigation they abandoned those damages claims.

In May 2013, following a nonjury trial, the trial court in the 

Pecoraro action entered judgment in favor of Josephine and 

5 Josephine and Catherine named Lou as a nominal 

defendant, but Lou did not oppose their claims.
9

Catherine. The court ruled that Cy had a confidential and 

fiduciary relationship with his parents when he, Lou, and their

parents executed the 1963 lease and that Cy gained an unfair 

advantage because the lease terms were below fair market 

value. The court ruled that “the fee title holders to the 

Property”—Loubar, Lou, Catherine, and Josephine—were 

“entitled to cancellation of the 1963 lease” and “possession of” the 

collective one-half “interest in the Property previously subject to 

the 1963 lease.”

6 The court also ruled GBR and Cy had “no right, 

title or interest” in the Loubar plaintiffs’ one-half interest and

enjoined them “from making any further adverse claims to said 

interest in the Property . . . .” Finally, the court ordered GBR to 

“forthwith relinquish possession of” the Loubar plaintiffs’ 

“undivided fifty percent leasehold interest in the Property . . . .”

GBR and Cy filed a notice of appeal and sought to stay 

enforcement of the judgment pending appeal. The trial court set 

the bond at $544,000, which the court found represented

Josephine and Catherine’s estimated lost income from the 

Property between May 2013 and June 2015. GBR posted the 

bond, and the trial court in the Pecoraro action stayed 

enforcement of the judgment pending appeal. In October 2016 

the Sixth District Court of Appeal affirmed the Pecoraro 

6 As we will explain, the court referred to the undivided 

one-half interest originally owned by Cy and Lou’s parents (i.e., 

the Loubar plaintiffs’ one-half interest) as the interest 

“previously subject to the 1963 lease” to distinguish it from the 

remaining undivided one-half interest (i.e., the partnership’s 

one-half interest), which GBR separately held the right to lease, 

but which the 1963 lease did not encumber. The court in the 

Pecoraro action did not adjudicate any leasehold or ownership 

rights in the partnership’s one-half interest. 
10

judgment, and on January 12, 2017 (a key date in this appeal) 

issued its remittitur.

D. The Loubar Plaintiffs File This Action To Recover 

Damages After GBR Continues To Possess the 

Property 

The Loubar plaintiffs filed this action in Santa Clara 

County Superior Court after the Sixth District Court of Appeal 

issued its remittitur in the Pecoraro action. The Loubar plaintiffs 

alleged that, “as a consequence of the [j]udgment” in the Pecoraro

action, GBR “no longer enjoyed any rights or benefits under the 

1963 Lease,” including the right to possess their undivided onehalf interest. The Loubar plaintiffs alleged that, despite the 

Pecoraro judgment, GBR had “entirely maintained control and 

possession” of their one-half interest by continuing to control the 

management and operation of the mobilehome park and by 

continuing to “collect and keep for itself 100% of the gross rents” 

and income derived from the park. The Loubar plaintiffs 

asserted three causes of action against GBR—one for each of

Parcels One, Three, and Eight—seeking mesne profits as 

damages. The Loubar plaintiffs filed similar causes of action for 

declaratory relief, seeking an order that they were entitled to a

proportional share of GBR’s net operating income from the 

mobilehome park. 

GBR filed a cross-complaint, asserting various causes of 

action for declaratory relief. Among other things, GBR sought a 

declaration that it was “entitled to occupy and use the entire 

20 Acres” of the Property “and not merely some portion thereof” 

and that its “occupation of the Property and operation of Magic 
11

Sands does not violate or infringe on any right” of the Loubar 

plaintiffs.

At trial the Loubar plaintiffs presented evidence that after 

the judgment in the Pecoraro action GBR continued to operate 

the mobilehome park. John Guerra, Jr., GBR’s chief executive 

officer and manager, admitted that after January 2017 GBR

continued to lease lots in the park. He also admitted GBR raised 

the rent on all existing leases and entered into multiple new 

leases without obtaining the Loubar plaintiffs’ consent. The 

leases granted tenants the exclusive right to occupy the mobile 

home lots. Guerra also testified that the Loubar plaintiffs asked

GBR to allow them to use some unoccupied offices in a clubhouse

located in the park, but that he denied the request. 

Cindy Gurtowski, the successor trustee of the Josephine 

Pecoraro Family Trust,7 testified someone put up an “ugly cyclone 

fence” around Parcel Eight without her permission.

8 Guerra 

testified the purpose of the fence, which is adjacent to a street 

and sidewalk, was to keep people who were homeless off the 

property.

GBR raised several related defenses to the Loubar 

plaintiffs’ complaint. First, GBR argued the judgment in the 

Pecoraro action barred the Loubar plaintiffs from seeking 

damages for GBR’s occupation of the Property (even though the 

Pecoraro judgment quieted title in favor of the Loubar plaintiffs 

7 Martorana died in 2018. Gurtowski substituted into the 

action as the successor trustee of Josephine’s trust. 

8 A cyclone fence is a steel wire mesh or chain link fence. 

(See Carlstrom v. Lyon Van & Storage Co. (1957) 152 Cal.App.2d 

625, 628.)
12

and ordered GBR to relinquish possession of the Loubar 

plaintiffs’ one-half interest) because the Loubar plaintiffs could 

have sought damages in that action. Second, GBR argued the 

2010 partition order established that the 2007 leases granted 

GBR the right to occupy the entire Property—not just the 

partnership’s one-half interest—and therefore precluded the 

Loubar plaintiffs from contesting GBR’s right to occupy the 

Property. Third, GBR argued that (regardless of whether the 

partition order had any preclusive effect) the Loubar plaintiffs 

“consented” to having GBR occupy the entire Property under the 

2007 leases. 

E. The Trial Court Rules for the Loubar Plaintiffs

The trial court found in favor of the Loubar plaintiffs on 

each of their causes of action. In its statement of decision the 

court found that after the judgment in the Pecoraro action GBR 

“occupied the Property to the exclusion of Plaintiffs” by “renewing 

mobile home tenant leases without notice to Plaintiffs, without 

listing Plaintiffs as co-landlords, without Plaintiffs’ consent, and 

without mentioning Plaintiffs’ possessory interest in the 

Property.” The court ruled that, by doing so, GBR failed to 

comply with the portion of the judgment directing it to relinquish 

possession of the Loubar plaintiffs’ one-half interest in the 

Property and enjoining GBR from making further adverse claims 

to the Property.

The trial court rejected GBR’s defenses. In particular, the 

court ruled the Pecoraro judgment barred GBR from contending 

it had the right to possess the Loubar plaintiffs’ one-half interest

under the 2007 leases or as a result of the 2010 partition order. 

The court further ruled the doctrine of claim preclusion did not 
13

bar the Loubar plaintiffs from seeking damages for GBR’s 

possession of the Property after the Pecoraro judgment “because 

the complained[-]about conduct of GBR as well as the damages 

sought arose after the effective date” of the judgment. The court 

reasoned that, under GBR’s theory, the judgment canceling the 

lease and quieting title in favor of the Loubar plaintiffs would 

have “no effect or consequences for the parties” and would 

actually leave GBR in a better position because “its exclusive use 

of the property [would] remain[ ] undisturbed, but without the 

burdens of being a lessee”—and therefore paying rent—“under 

the 1963 Lease.”

The trial court entered judgment in favor of the Loubar 

plaintiffs and against GBR on each of the causes of action in the 

Loubar plaintiffs’ complaint and on each of the causes of action in 

GBR’s cross-complaint. Relying on the testimony of a certified 

general appraiser who analyzed Magic Sands’ operating income, 

the court awarded the Loubar plaintiffs $5,548,876 in damages

“for the period from August 3, 2012 through June 20, 2019,” 

consisting of $5,047,451 for the Loubar plaintiffs’ proportionate 

share of the income generated by Magic Sands and $501,425 for

the reasonable rental value of Parcel Eight. The court also 

awarded the Loubar plaintiffs $2,147 as daily damages until the 

entry of judgment. GBR timely appealed. In August 2022 the 

appeal was transferred to this district.

DISCUSSION

A. Standard of Review

On appeal from a judgment based on a statement of 

decision following a court trial, we “review questions of law 

de novo and we review the trial court’s findings of fact under the 
14

substantial evidence standard.” (Gajanan Inc. v. City and County 

of San Francisco (2022) 77 Cal.App.5th 780, 791-792; see 

Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) “We 

construe findings of fact liberally to support the judgment; 

consider the evidence in the light most favorable to the judgment; 

draw all reasonable inferences in support of the findings; and 

infer that the trial court ‘“impliedly made every factual finding 

necessary to support its decision.”’” (Gajanan, at pp. 791-792; see 

Thompson, at p. 981; Barickman v. Mercury Casualty Co. (2016) 

2 Cal.App.5th 508, 516.)

B. The Trial Court’s Ruling That GBR Violated the 

Pecoraro Judgment Was Partially Correct

As discussed, the Pecoraro judgment stated the Loubar 

plaintiffs were “entitled to . . . possession” of their undivided 

one-half interest and ordered GBR to “relinquish possession of,” 

and make no further claims adverse to, that interest. The trial 

court in this action ruled GBR did not relinquish possession of 

the Loubar plaintiffs’ one-half interest in Parcels One and 

Three—the parcels on which the mobilehome park sits—or the 

Loubar plaintiffs’ one-half interest in Parcel Eight. The former 

ruling was correct; the latter was not.

1. GBR Failed To Relinquish Possession of Parcels 

One and Three

The trial court ruled GBR failed to relinquish possession of 

the Loubar plaintiffs’ one-half interest in Parcels One and Three 

because GBR continued to lease mobilehome lots to tenants, 

granted tenants exclusive possession of the lots, and refused to 

allow the Loubar plaintiffs to use offices in the clubhouse. The 
15

parties do not dispute GBR has the right to lease the 

partnership’s undivided one-half interest under the 2007 leases. 

GBR appears to contend that, because it has the right to lease an 

undivided one-half interest (the partnership’s interest) in the 

parcels under the 2007 leases, its conduct did not violate the 

judgment. GBR is incorrect. 

In general, a tenant “equally is entitled to share in the 

possession of the entire property” with a cotenant.9 (Zaslow v. 

Kroenert (1946) 29 Cal.2d 541, 548.) But “neither may exclude 

the other from any part of it.” (Id. at p. 548; see Tom v. City 

& County of San Francisco (2004) 120 Cal.App.4th 674, 676; 

Munkdale v. Giannini (1995) 35 Cal.App.4th 1104, 1114.) “An 

ouster . . . is the wrongful dispossession or exclusion by one 

tenant of his cotenant or cotenants from the common property of 

which they are entitled to possession,” such as by “claiming the 

whole for himself, denying the title of his companion, or refusing 

to permit him to enter.” (Zaslow, at p. 548; see Hacienda Ranch 

Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 

1128.) 

Substantial evidence supported the trial court’s finding

GBR dispossessed the Loubar plaintiffs from their undivided 

one-half interest in Parcels One and Three (i.e., refused to 

relinquish possession). GBR’s chief executive officer, Guerra,

admitted that the Loubar plaintiffs asked if they could use some 

9 The trial court ruled that, because GBR held the right to 

lease the partnership’s undivided one-half interest and the 

Loubar plaintiffs owned the other undivided one-half interest

previously owned by Cy and Lou’s parents, GBR and Loubar were 

“similarly situated” to cotenants—a proposition neither party 

disputes. 
16

of the offices in the mobilehome park and that he did not allow 

them to. That testimony, without more, was substantial evidence

to support the court’s finding. (See Greer v. Tripp (1880) 56 Cal. 

209, 212 [“a refusal, after a proper demand by a tenant in 

common in possession to admit his co-tenant into the possession, 

is itself an ouster, and dispenses with the necessity of further 

proof on that point”]; Wood v. Henley (1928) 88 Cal.App. 441, 454

[ouster includes the “refusal of a tenant in possession on a proper 

demand, to let his cotenant into possession”].)10

But there was more: GBR continued to lease lots in the 

mobilehome park. A cotenant may not enter into a lease that 

purports to grant the lessee exclusive possession of property 

without obtaining the consent of the other cotenants. (See King 

v. Oakmore Homes Assn. (1987) 195 Cal.App.3d 779, 783 [because 

“‘[o]ne cotenant cannot, without special authority from the other 

cotenants, encumber the entire estate’ . . . absent the cotenant’s

consent, a tenant may not . . . contract with third persons 

concerning the common property”]; Kraemer v. Kraemer (1959) 

167 Cal.App.2d 291, 307 [“[a]n entry by a grantee under a deed 

from a cotenant in exclusive possession, which purports to convey 

the whole of the property, without notice of the cotenancy, is 

presumed to be the assertion of an exclusive right in severalty” 

and “constitutes an ouster of the cotenants out of possession”].) It 

was undisputed that, after the Court of Appeal in the Pecoraro 

10 GBR asserts the request was a “ruse” manufactured by the 

attorneys for the Loubar plaintiffs. If it was a ruse, it was a good 

one. Regardless of who came up with the idea to ask about using 

the offices, GBR’s response demonstrated it was “claiming the 

whole” of Parcels One and Three and “refusing to permit” the 

Loubar plaintiffs to enter the property. (Zaslow v. Kroenert, 

supra, 20 Cal.2d at p. 548.)
17

action issued its remittitur affirming the judgment, GBR

continued to lease mobilehome lots to tenants and granted them 

exclusive possession of the lots. GBR concedes it refused to 

relinquish possession, asserting it was “impossible for GBR to 

operate Magic Sands and simultaneously ‘relinquish’ or ‘get off of’ 

Plaintiffs’ undivided interest.” That is, essentially, the Loubar 

plaintiffs’ point.

And still more: It was undisputed GBR did not share with 

the Loubar plaintiffs any of the rental income GBR received from 

the leases. That too supported the trial court’s finding GBR

excluded the Loubar plaintiffs from Parcels One and Three. (See 

Dabney-Johnston Oil Corp. v. Walden (1935) 4 Cal.2d 637, 656 

[“where one of several cotenants . . . receives rents from third 

persons for the use of the land, he must account to his cotenants 

for their share”]; Edwards v. Edwards (1949) 90 Cal.App.2d 33, 

43 [where cotenants could not share physical possession of 

property, a cotenant would “have to account to [the other 

cotenant] for [his] share of the rentals received”]; see also 

Boccanfuso v. Green (Conn.App. 2005) 880 A.2d 889, 313-314 [“By 

ouster is not meant a physical eviction, but a possession attended

with such circumstances as to evince a claim of exclusive right 

and title, and a denial of the right of the other tenants to 

participate in the profits.”]; cf. Graybiel v. Burke (1954) 

124 Cal.App.2d 255, 265 [cotenant’s “acts in contracting to 

sell all of the merchantable timber” on property, “and in engaging 

[a third party] to conduct the logging operations, manifested an 

intention on his . . . part to hold exclusively for himself and 

amounted to an ouster of the other cotenants”].)
18

2. GBR Did Not Fail To Relinquish Possession of 

Parcel Eight

The trial court also ruled GBR violated the Pecoraro

judgment because GBR “excluded [the Loubar] Plaintiffs from 

Parcel Eight.” Substantial evidence did not support that finding. 

The only evidence the Loubar plaintiffs submitted at trial 

that GBR excluded them from Parcel Eight was testimony (and a 

picture showing) GBR erected an “ugly” cyclone fence around the 

parcel. That was not enough. Because, as a tenant under the 

2007 leases, GBR held the right to possess an undivided one-half

interest in the parcel, it had the right to use the entire property—

including keeping other people off the property—so long as GBR

did not also exclude the Loubar plaintiffs. (See Morin v. City 

Council of City of San Jose (1952) 109 Cal.App.2d 268, 271 [“[o]ne 

cotenant can at any time protect the entire estate from injury or 

loss without calling to his aid the assistance of the other 

cotenants,” including “resist[ing] an intruder, or evict[ing] a 

trespasser”].) Had the Loubar plaintiffs submitted evidence GBR 

erected the fence to keep them off the property, such evidence

may have been sufficient to show GBR refused to relinquish 

possession. But they did not. There was no evidence that the 

Loubar plaintiffs could not access Parcel Eight, that GBR denied 

a request by the Loubar plaintiffs to access the parcel, or that 

GBR erected the fence for any reason other than to exclude 

trespassers. (See Estate of Hughes (1992) 5 Cal.App.4th 1607, 

1613 [where cotenant “manifest[ed] neither an intent to share 

possession nor to deprive other cotenants from sharing 

possession,” the trial court “properly decided that absent any 

evidence [cotenant] actually excluded [other cotenants], it could 

not find an ouster”]; see also Askley v. Bassett (1922) 189 Cal. 
19

625, 642 [ouster requires “acts of the most open and notorious 

character, clearly giving notice . . . to all having occasion to 

observe the condition and occupancy of the property, that the 

intention is to exclude, and does exclude the cotenant”].)

11

Moreover, Lou admitted during trial that he placed a sign 

on Parcel Eight advertising the property for rent, that he in fact

leased at least a portion of Parcel Eight, and that he did not 

share the rental income with GBR. Thus, the Loubar plaintiffs 

were not excluded from Parcel Eight; they were actually using it 

(or at least Lou was and the other Loubar plaintiffs could have). 

Substantial evidence did not support the court’s finding GBR

failed to relinquish possession of Parcel Eight, and the trial court 

erred in awarding the Loubar plaintiffs damages for their alleged 

lost use of that property.

11 As we will discuss in more detail, the trial court, in denying 

GBR’s requests for declaratory relief, appeared to rule GBR did 

not have any rights to Parcel Eight, which would include the 

right to lease even the partnership’s undivided one-half interest

in the parcel. The Loubar plaintiffs, however, sought relief (and 

the trial court awarded damages) only on the ground that they

owned the one-half interest in Parcel Eight in which the court 

quieted title in the Pecoraro action and that GBR violated the 

Pecoraro judgment by failing to relinquish possession. The 

Loubar plaintiffs did not allege or argue GBR’s decision to erect 

the fence constituted, for example, an independent tort entitling 

them to relief.
20

C. Claim Preclusion Bars Part of the Loubar Plaintiffs’ 

Claims

1. Applicable Law and Standard of Review

Claim preclusion, “formerly called res judicata, ‘prohibits a 

second suit between the same parties on the same cause of 

action.’ [Citation.] ‘Claim preclusion arises if a second suit 

involves (1) the same cause of action (2) between the same parties 

[or their privies] (3) after a final judgment on the merits in the 

first suit.’” (Kim v. Reins Intern. California, Inc. (2020) 9 Cal.5th 

73, 91; see DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 

824.) Whether claim preclusion applies is a question of law we 

review de novo. (In re Marriage of Brubaker & Strum (2021) 

73 Cal.App.5th 525, 538; Johnson v. GlaxoSmithKline, Inc. (2008) 

166 Cal.App.4th 1497, 1507.)

The parties do not dispute GBR satisfied the last two 

elements of claim preclusion: The Pecoraro action involved the 

same parties (or their privies) as those in this action and resulted 

in a final judgment on the merits.12 The parties only dispute 

whether this action and the Pecoraro action involve the same 

cause of action.

For purposes of claim preclusion, “California law identifies 

a single cause of action as ‘the violation of a single primary 

right.’” (Boyd v. Freeman (2017) 18 Cal.App.5th 847, 854; see 

Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 813.) 

12 GBR, Lou, and Catherine were parties to the Pecoraro

action. Gurtowski, as successor trustee of Josephine’s trust, is 

the successor to Josephine, who was a party to the action. And 

the Loubar plaintiffs do not dispute Loubar was in privity with 

Lou for purposes of claim preclusion. 
21

Under the primary right theory, the “cause of action is the right 

to obtain redress for a harm suffered, regardless of the specific 

remedy sought or the legal theory (common law or statutory) 

advanced.” (Boeken, at p. 798; see Boyd, at p. 855.) The 

“determinative factor is the harm suffered. When two actions 

involving the same parties seek compensation for the same harm, 

they generally involve the same primary right.” (Boeken, 

at p. 798; see Hi-Desert Medical Center v. Douglas (2015) 

239 Cal.App.4th 717, 733; Federal Home Loan Bank of San 

Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th 

1520, 1531.)

GBR argues the same primary right at issue in the 

Pecoraro action is at issue in this action; namely, the Loubar 

plaintiffs’ right to possess their undivided one-half interest free 

from the burden of the 1963 lease. GBR contends, therefore, the 

Loubar plaintiffs had to seek all relief, including damages for

GBR’s continued possession of the Property, in the Pecoraro

action. In contrast, the Loubar plaintiffs argue the Pecoraro

action and this action involve different primary rights because 

the two actions seek relief for different harms: in the Pecoraro

action, for harm caused by Cy’s procurement of the 1963 lease 

from his parents by undue influence; in this action, for harm 

caused by GBR’s refusal to relinquish possession of the Property 

as required by the Pecoraro judgment.

Each side is partially correct. Claim preclusion bars the 

Loubar plaintiffs from seeking damages for GBR’s possession of 

the Property before the judgment in the Pecoraro action was 

enforceable. But claim preclusion does not bar the Loubar 

plaintiffs from seeking damages for GBR’s possession of the 

Property after the Pecoraro judgment became enforceable. For 
22

the latter time period, the Loubar plaintiffs can bring an 

independent action on the judgment, including an action for

damages.

2. The Loubar Plaintiffs’ Claims for Damages Caused by 

GBR’s Conduct After January 12, 2017 Are Not 

Barred

An action to quiet title to, or obtain possession of, real 

property generally involves the same primary right as an action 

seeking damages from the person or entity wrongfully possessing 

the property. Therefore, a party may not seek to quiet title to, or 

obtain possession of, property in one action and seek damages 

caused by the defendant’s possession of that property in a 

subsequent action. (See McNulty v. Copp (1954) 125 Cal.App.2d 

697, 705 [action canceling a deed and quieting title to real 

property barred a subsequent action for damages caused by the

wrongful possession of the property because “[t]he same wrongful 

act—the possession under a false claim of right—gave rise to 

both” actions]; McCaffrey v. Wiley (1951) 103 Cal.App.2d 621, 626 

[action to eject a party from land barred a subsequent action to 

recover damages from the party previously withholding the land 

because the “question of damages for withholding the possession 

of land from another” and the “question as to the right of 

possession of the land . . . both rest upon the same invasion or 

violation of the same right”]; see also Hatch v. Bank of America 

N. T. & S. A. (1960) 182 Cal.App.2d 206, 208, 210 [action quieting 

title to a truck precluded a subsequent action for damages based 

on the defendant’s use of the truck].)

An action to enforce a judgment, however, involves a 

different primary right from the right at issue in the underlying 
23

action in which the court entered judgment. When a court 

reduces a cause of action to judgment, the cause of action 

“‘merges with the judgment and is thereby superseded’” 

(Diamond Heights Village Assn., Inc. v. Financial Freedom Senior 

Funding Corp. (2011) 196 Cal.App.4th 290, 301) or 

“extinguished” (Tomaselli v. Transamerica Ins. Co. (1994) 

25 Cal.App.4th 1766, 1770). (See O’Neil v. General Security Corp. 

(1992) 4 Cal.App.4th 587, 602; Passanisi v. Merit-McBride 

Realtors, Inc. (1987) 190 Cal.App.3d 1496, 1510.) The prevailing 

party acquires new rights as a judgment creditor distinct from 

those for which it sought redress in the original action, including 

the right to enforce the judgment. (See Diamond Heights Village, 

at p. 301 [“the judgment ‘“ . . . creates a new debt or liability,

distinct from the original claim or demand”’”]; Tomaselli, at 

p. 1770 [“upon entry of . . . judgment [the prevailing parties] . . .

acquired such rights as are accorded a judgment creditor”]; 

Rest.2d Judgments, § 17, com. a [when a final judgment “is 

rendered in favor of the plaintiff, the claim is generally merged in 

the judgment . . . and the judgment with new rights of 

enforcement thereof is substituted for the claim”].)

Although the Enforcement of Judgment Law (Code Civ. 

Proc., §§ 680.010 et seq.)13 establishes a comprehensive statutory 

scheme governing the enforcement of judgments, a judgment 

creditor may also bring an independent action on the judgment. 

(See Thomas v. Thomas (1939) 14 Cal.2d 355, 358 [“[t]he right to 

maintain an action on a domestic judgment has long been 

recognized in this state”]; Barkley v. City of Blue Lake (1996) 

47 Cal.App.4th 309, 318 [“[a]n action on the judgment is an 

13 Undesignated statutory references are to the Code of Civil 

Procedure.
24

alternative method of securing the judgment creditor’s right to 

recover”]; see also § 683.050 [Enforcement of Judgment Law does 

not “[l]imit any right the judgment creditor may have to bring an 

action on a judgment”]; Goldman v. Simpson (2008) 

160 Cal.App.4th 255, 262, fn. 3 [“[a]n action based on 

a judgment is an action based on contract”].) In particular, a 

party may bring an action on a judgment for damages where the 

other party fails to comply with a judgment directing it to 

surrender possession of real property. (See Hidden v. Jordan

(1881) 57 Cal. 184, 186-187 [plaintiff could bring action seeking 

mesne profits where the defendant failed to comply with a 

judgment ordering the defendant to surrender to possession of 

the property]; see also Colvig v. RKO General, Inc. 

232 Cal.App.2d 56, 74-75 (1965) [former employee could maintain 

an action for damages where the employer failed to comply with a 

judgment ordering employer to restore employee to his prior 

position].)

In addition, the doctrine of claim preclusion only “serves as 

a bar to all causes of action that were or could have been litigated 

in the first cause of action.” (McCready v. Whorf (2015) 

235 Cal.App.4th 478, 482; see Allied Fire Protection v. Diede 

Construction, Inc. (2005) 127 Cal.App.4th 150, 155.) Claim 

preclusion, however, “is not a bar to claims that arise after the 

initial complaint was filed.” (McCready, at p. 482; see Allied Fire 

Protection, at p. 155.) An action to enforce a judgment not only 

involves a different primary right from the action establishing 

the judgment, such an action arises after the complaint in the 

prior action. As the court in McCready explained, because “an 

action to enforce a judgment . . . quite obviously” cannot be

“litigated in the first action,” claim preclusion does not bar a 
25

subsequent action on the judgment. (McCready, at p. 483; see 

ibid. [judgment imposing a lien on the assets and profits of a 

business did not bar a subsequent action against the judgment

debtor for money had and received based on conduct by the 

judgment debtor in avoiding the lien]; see also Hoover v. 

Galbraith (1972) 7 Cal.3d 519, 525 [“[a]n action on a judgment 

. . . may not be commenced until the judgment has become 

final”].) 

The Supreme Court’s decision in Hidden v. Jordan, supra, 

57 Cal. 184—while not strictly a claim preclusion case—is 

instructive. In Hidden the plaintiff obtained a judgment ordering 

the defendant to execute a deed conveying real property to the 

plaintiff and then to “surrender[ ] and deliver[ ]” possession of the 

property. (Id. at p. 185.) Rather than comply, the defendant (like 

GBR) leased the property to third parties, who excluded the 

plaintiff from the property. The plaintiff subsequently sued the 

defendant for mesne profits “to recover the value of the use and 

occupation of the premises” while the defendant leased the 

property, and the trial court entered judgment in favor of the 

plaintiff. The Supreme Court affirmed, stating that the 

defendants, “instead of respecting” the judgment, “detained the 

possession from” the plaintiff and that, for “the damage they thus 

occasioned plaintiff, it is but just that they should respond, and 

we know of no rule of law that prevents their being made to do 

so.” (Id. at pp. 186-187.)

The Loubar plaintiffs labeled each of their causes of action 

either as “for mesne profits” or for declaratory relief. The

allegations make clear, however, the Loubar plaintiffs were 

bringing an action seeking damages because GBR failed to 

comply with the Pecoraro judgment. (See Khodayari v. 
26

Mashburn (2011) 200 Cal.App.4th 1184, 1190 [“the nature of a

cause of action does not depend on the label the plaintiff gives it 

or the relief the plaintiff seeks but on the primary right 

involved”].) The Loubar plaintiffs alleged that the Pecoraro

judgment “ordered that GBR ‘shall forthwith relinquish 

possession’” of their one-half interest, but that GBR “maintained 

control and possession of the Current Undivided 50% including 

full control of the management and rental operations” of the 

mobilehome park, to the Loubar plaintiffs’ “exclusion” and 

without their consent.

For at least the period after the Court of Appeal issued its

remittitur in the Pecoraro action on January 12, 2017, the 

analysis is straightforward. Once the Court of Appeal issued its

remittitur, the Pecoraro judgment became final, the trial court’s

stay of the execution of the judgment was no longer in effect, and 

the Loubar plaintiffs could bring an independent action on the 

judgment to enforce their rights as judgment creditors. (See 

Hoover v. Galbraith, supra, 7 Cal.3d at pp. 525-526 [for purposes 

of filing a judgment on an action, the “judgment has become final

either upon expiration of the period within which an appeal may 

be taken, or, if an appeal is taken, upon the issuance of the

remittitur when the judgment has been affirmed”]; Archdale v. 

American Internat. Specialty Lines Ins. Co. (2007) 

154 Cal.App.4th 449, 479 [“An appeal is final on the 

date remittitur issues.”]; Cory v. Poway Unified School Dist. 

(1983) 147 Cal.App.3d 1158, 1165 [“Where an appeal has been 

taken, a judgment is final upon the issuance of the
27

remittitur.”].)14 Therefore, the Loubar plaintiffs’ claims for 

damages caused by GBR’s refusal to comply with the Pecoraro 

judgment after January 12, 2017 do not involve the same primary 

rights as those at issue in the Pecoraro action, and claim 

preclusion does not bar their claims for damages after that date.

3. The Loubar Plaintiffs’ Claims for Damages 

Caused by GBR’s Conduct Before January 12, 

2017 Are Barred

The trial court also awarded the Loubar plaintiffs damages 

for GBR’s possession of the Property between August 3, 2012—

the last day of the trial in the Pecoraro action—and January 12, 

2017. Whether the doctrine of claim preclusion bars the Loubar 

plaintiffs’ claims for damages during this time period is not so 

straightforward. But, in the end, claim preclusion applies here. 

As discussed, a judgment in an action to quiet title to real 

property generally bars a subsequent action seeking damages for 

a person’s wrongful possession of the property. Here, the

Pecoraro judgment stated the Loubar plaintiffs “were entitled to 

cancellation of the 1963 Lease as well as possession” of their onehalf interest “effective as of August 3, 2012.” The trial court in 

the Pecoraro action, however, did not enter the judgment until 

May 2013. Regardless of when the Pecoraro judgment stated the 

Loubar plaintiffs obtained the right to possess their undivided 

one-half interest in the Property, until May 2013 there was no 

judgment for GBR to comply with. Thus, the Loubar plaintiffs 

14 The parties appear to agree the stay ended when the Court 

of Appeal issued its remittitur. (See Granger v. Sheriff (1903) 

140 Cal. 190, 196 [stay of execution on appeal ends when the 

reviewing court loses jurisdiction].)
28

could not have brought an action on the judgment before 

May 2013. 

Nor could the Loubar plaintiffs have brought an action for 

GBR’s failure to comply with the judgment between May 2013 

and January 2017. That is because the trial court stayed 

enforcement of the Pecoraro judgment under section 917.4 after 

GBR posted the undertaking set by the court. Because the court 

issued the stay, GBR did not have to comply with the Pecoraro 

judgment while the appeal was pending. (See Petrolink v. Lantel 

Enterprises (2022) 81 Cal.App.5th 156, 167 [appellant’s “appeal 

and its posting of an undertaking [under section 917.4] . . . served 

to stay the amended judgment and render that judgment 

unenforceable until it became final”]; id. at p. 168 [“[b]ecause a 

trial court cannot enforce a judgment for specific performance 

that has been stayed pending appeal, that judgment cannot be 

considered to have fixed a date for performance until the stay has 

been lifted”]; Hearn Pacific Corp. v. Second Generation Roofing, 

Inc. (2016) 247 Cal.App.4th 117, 143, fn. 22 [judgment debtor 

“that appeals an adverse judgment rendered against it, and posts 

a bond to stay its execution, cannot be held liable in tort to 

the judgment creditor for refusing to pay the judgment”]; Gray v. 

Bybee (1943) 60 Cal.App.2d 564, 569 [stay of execution of a 

judgment has “the effect of a temporary injunction”].) 

Indeed, the Loubar plaintiffs had a separate remedy to 

recover their loss of use of their one-half undivided interest while 

the Pecoraro appeal was pending: an action on the undertaking

after the appeal. Section 917.4 provides that, when the trial 

court fixes the amount of an undertaking to stay enforcement of a 

judgment for “delivery of possession of real property,” the order

must require the appellant to “pay the damage suffered 
29

by the . . . value of the use and occupancy of the property” if the 

judgment is affirmed. (See Royal Thrift & Loan Co. v. County 

Escrow, Inc. (2004) 123 Cal.App.4th 24, 36 [undertakings under 

section 917.4 “cover the value of occupation and waste” during 

the appeal]; see also § 996.430, subd. (a) [“liability on a bond may 

be enforced by civil action”].)

The Loubar plaintiffs argue that, “where the challenged 

conduct post-dates the filing of the first action, [claim preclusion]

cannot bar the subsequent action . . . .” That is not an accurate

statement of the law. Claim preclusion bars a second action for 

violation of the same primary right involved in the first action, in 

light of the harm suffered. Where a party suffers harm from a 

violation that begins before the party files a lawsuit and 

continues while the litigation is pending, there is only one 

primary right or cause of action for purposes of claim preclusion. 

(See Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 906 

[a decree for specific performance “bars a subsequent action for 

monetary relief based on the same breach of contract, even if this 

subsequent action seeks to recover for delay in performance 

occasioned by the litigation”]; Van Horne v. Treadwell (1913) 

164 Cal. 620, 623 [“continued withholding of stocks or bonds after 

the bringing of action to enforce their delivery, pending the 

litigation and up to the time of the enforcement of the decree, is 

not a new wrong, redressible by a new action, but is simply a 

continuation of the original wrong, for which the only redress 

given by the law must be had in the original action”]; Orloff v. 

Hollywood Turf Club (1952) 110 Cal.App.2d 340, 345 [action for 

ejectment from a race track seeking injunctive relief barred a 

subsequent action seeking damages caused by the “continuing 

wrong” during the original action].) Indeed, in Hidden v. Jordan, 
30

supra, 57 Cal. 184 the Supreme Court held that, although the 

plaintiff could seek damages after the defendant violated the 

judgment, “[t]he mesne profits accruing to the plaintiff previous 

to the entry of the decree . . . could have been, and 

could only have been, allowed him in the [prior] action.” (Id. 

at pp. 186-187.) Therefore, claim preclusion bars the Loubar 

plaintiffs’ damages claims prior to January 12, 2017.15

D. Claim Preclusion Bars GBR from Asserting It Has the 

Right To Possess the Loubar Plaintiffs’ One-half

Interest in the Property

GBR contends the trial court erred because it failed to rule 

in GBR’s favor on two related defenses. First, GBR argues the 

2010 partition order established that GBR had the right, under 

the 2007 leases, to operate the mobilehome park on the entire 

Property. Second, GBR argues the Loubar plaintiffs consented to 

GBR occupying the entire Property following the partition order. 

The Loubar plaintiffs contend claim preclusion bars these 

defenses. It does.

15 Because the trial court awarded one amount of damages for 

GBR’s possession of the Loubar plaintiffs’ one-half interest in the 

Property between August 3, 2012 and June 20, 2019, the entire 

damages award must be reversed with directions for a new trial 

on those damages. For the same reason, because the court 

declared the Loubar plaintiffs were “entitled to recover” 50

percent of GBR’s net operating income from August 3, 2012, the 

Loubar plaintiffs’ causes of action for declaratory relief must be 

retried. We do not consider the parties’ other arguments 

regarding whether the trial court erred in calculating the amount 

of damages.
31

As discussed, there is no dispute that the Pecoraro 

judgment was a final judgment on the merits or that GBR was a 

party in the Pecoraro action. The only question is whether, in 

raising these two defenses, GBR is attempting to relitigate the 

same cause of action—or the alleged violation of the same 

primary right—that was involved in the Pecoraro action. (See 

DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 818 

[“claim preclusion ‘prevents relitigation of the same cause of 

action in a second suit’” (italics omitted)]; Mycogen Corp. v. 

Monsanto Co., supra, 28 Cal.4th at p. 896; Samara v. Matar 

(2017) 8 Cal.App.5th 796, 803.) That is exactly what GBR is 

doing.

The Pecoraro judgment quieted title to the undivided 

one-half interest in the Property originally owned by Cy and 

Lou’s parents, declared that GBR had no right or interest in that 

one-half interest, and ordered GBR to relinquish possession of 

that one-half interest in the Property. Unlike the Loubar 

plaintiffs, who are simply seeking to enforce their rights as 

creditors in the Pecoraro judgment, GBR is attempting to 

relitigate who has the right to possess the Loubar plaintiffs’ 

undivided one-half interest in the Property, which is the primary 

right adjudicated in the Pecoraro action. Indeed, a judgment 

quieting title to real property generally bars a party to the 

judgment from asserting any adverse interest in the property 

acquired prior to the judgment. (See California Bank v. Traeger 

(1932) 215 Cal. 346, 351 [“a simple judgment in favor of [a party]

in a quiet title action ‘operates as an estoppel upon the [other 

party] and determines title as between the parties and protects 

the [prevailing party] against any claim” by the other party

(italics omitted)]; Warden v. Stoll (1930) 210 Cal. 374, 377 [same]; 
32

Quirk v. Rooney (1900) 130 Cal. 505, 510 [“We do not think it the 

policy of the law to allow as many different suits between the 

same parties in regard to the same subject-matter as there might 

be different modes of establishing title to property.”]; Little v. 

Schwartz (1960) 182 Cal.App.2d 594, 599 [“the standard 

judgment in the ordinary quiet title action generally includes, as 

almost an inseparable part thereof, a prohibition against the

defendant subsequently asserting a claim adverse to the title of 

the plaintiff,” and such “a decree is final and conclusive, and so 

should it be, for otherwise the future security and safety of land 

titles based upon quiet title judgments would be endangered”].) 

Even if GBR’s legal theories for why it has the right to possess 

the Loubar plaintiffs’ one-half undivided interest in the Property 

had some validity (and as we will explain, they do not), GBR had 

the legal and factual bases for asserting those theories no later 

than 2010, when the Loubar plaintiffs purchased the Property 

pursuant to partition, which was before Catherine and Josephine 

filed their operative complaint in the Pecoraro action. GBR could

have raised its defenses in that action.

GBR argues the Pecoraro judgement “did not ‘quiet title’ to 

all interests in the Property,” but only to the “‘leasehold interest’ 

created by the 1963 lease.” GBR is correct the Pecoraro judgment 

did not quiet title to all interests in the property: The judgment 

did not address the partnership’s undivided one-half interest. 

But GBR’s theory that the judgment quieted title only to a

purported interest “created by” the 1963 lease, rather than the 

entirety of the Loubar plaintiffs’ undivided one-half interest, is 

incorrect.

In their operative complaint in the Pecoraro action, 

Catherine and Josephine alleged GBR “took possession of the 
33

Property”—defined as the 20-acre property that encompasses 

Parcels One, Three, and Eight—and “refused to restore 

possession of it” to them. In their prayer for relief, they sought a 

judgment “quieting title in [their] favor as fee title owners of the 

property” and “an order that [GBR] . . . has no right, title, estate, 

lien or interest in the property which is adverse” to Catherine 

and Josephine. In their trial brief, Catherine and Josephine 

argued the trial court should “both cancel the lease and enter 

judgment quieting title to the Property” and reiterated their 

demand that “title to [the Property] should be quieted as of 

August 3, 2012.” The court granted the relief Catherine and 

Josephine requested, declaring in the judgment the Loubar 

plaintiffs were “entitled to . . . possession of [the] undivided fifty 

percent interest in the Property previously subject to the 1963 

Lease” (i.e., the undivided half interest from Cy and Lou’s 

parents, now owned by the Loubar plaintiffs), declaring GBR had 

“no right title, or interest in the undivided fifty percent interest 

in the Property” and enjoining GBR “from making any further 

adverse claims to said interest.” The court never stated it was 

only quieting title to a leasehold interest “created by” the 1963 

lease.16 

16 In its statement of decision, the trial court distinguished 

between the “fifty percent undivided interest in the . . . Property” 

owned by Cy and Lou’s parents “at the time the Lease was 

executed” and the “other fifty percent undivided interest in the 

. . . Property . . . owned by Cy and Lou that was not subject to the 

1963 Lease.” Reading the statement of decision and judgment as 

a whole, the court’s reference to the “undivided fifty percent 

interest in the Property previously subject to the 1963 Lease” is a 

reference to the undivided one-half interest originally owned by 
34

GBR’s contrary interpretation of the Pecoraro judgment is 

inconsistent with the relief requested by Catherine and 

Josephine and the terms of that judgment. By cancelling the 

1963 lease, the Pecoraro judgment effectively determined the 

1963 lease did not create any right in the property. If, as GBR 

asserts, the court in the Pecoraro action intended only to quiet 

title to interests created by the 1963 lease, the part of the 

judgment cancelling the lease would have been the end of the 

judgment; the court would have no reason to determine whether 

any party, for some other reason, held ownership interests or the 

right to possess the Property because those rights and interests 

would not have been before the court. But the Pecoraro judgment 

goes further: It declares that the Loubar plaintiffs, as “fee title 

holders to the Property,” are entitled to “possession” of the 

undivided one-half interest previously owned by Cy and Lou’s 

parents and subject to the 1963 lease and that GBR must 

“relinquish possession” of that one-half interest. That right of 

possession necessarily arises from an interest different from one

“created by” the 1963 lease. By declaring that the Loubar 

plaintiffs had the right to possess the one-half interest, the court 

in the Pecoraro action necessarily quieted title to the entire onehalf interest previously owned by Cy and Lou’s parents and 

encumbered by the 1963 lease. (See Southern Pacific Pipe Lines, 

Inc. v. State Bd. Of Equalization (1993) 14 Cal.App.4th 42, 57

Cy and Lou’s parents (i.e., the Loubar plaintiffs’ one-half 

interest), not a purported interest “created by” the 1963 lease. 

(See Lazar v. Superior Court (1940) 16 Cal.2d 617, 622 [courts 

should construe a judgment “as a whole”]; Dow v. Lassen 

Irrigation Co. (2013) 216 Cal.App.4th 766, 781 [same].)
35

[“‘the judgment as entered should be liberally construed with a 

view of giving effect to the manifest intent of the court’”].)

GBR asserts it can litigate its right to possess the entire 

Property, including the Loubar plaintiffs’ one-half interest, 

because the judgment states GBR is “not enjoined . . . from 

litigating any other interest in the Property.” But the “other 

interest” the Pecoraro judgment refers to is the one-half interest 

not previously subject to the 1963 lease (i.e., the partnership’s 

one-half interest)—not the Loubar plaintiffs’ one-half interest. 

(See Deutsche Bank National Trust Co. v. Pyle (2017) 

13 Cal.App.5th 513, 524 [“purpose of a quiet title action ‘is to 

finally settle and determine, as between the parties, all

conflicting claims to the property in controversy, and to decree to 

each such interest or estate therein as he [or she] may be entitled 

to’”].)

Finally, GBR contends (without citing any authority) “claim 

preclusion is a bar on “‘claims’, not defenses.” The law is to the 

contrary. As discussed, claim preclusion “‘prevents relitigation of 

the same cause of action in a second suit between the same 

parties’” (DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at 

p. 824), including “‘all grounds for, or defenses to, recovery that 

were previously available to the parties, regardless of whether 

they were asserted or determined in the prior proceeding.’”

(State Bd. of Equalization v. Superior Court (1985) 39 Cal.3d 633, 

641, italics added; see Brown v. Felsen (1979) 442 U.S. 127, 131

[99 S.Ct. 220]; Worton v. Worton (1991) 234 Cal.App.3d 1638, 

1647.) As the Supreme Court has explained, the “reason for this 

is manifest. A party cannot by negligence or design withhold 

issues and litigate them in consecutive actions. Hence the rule is 

that the prior judgment is res judicata on matters which were 
36

raised or could have been raised, on matters litigated or 

litigable.” (Sutphin v. Speik (1940) 15 Cal.2d 195, 202; see State 

Compensation Insurance Fund v. ReadyLink Healthcare, Inc. 

(2020) 50 Cal.App.5th 422, 447; Aerojet-General Corp. v. 

American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 402.) Thus, 

the doctrine “‘operates to demand of a defendant that all his 

defenses to the cause of action urged by the plaintiff be asserted 

under the penalty of forever losing the right to thereafter so urge 

them.’” (Sutphin, at p. 202; see Murphy v. Murphy (2008) 

164 Cal.App.4th 376, 404.) As the Supreme Court explained in 

denying a petition for rehearing in Sutphin, a plaintiff may not 

“be compelled to relitigate” the same right whenever the 

defendant “can discover a new theory upon which to attack it.” 

(Sutphin, at p. 205.) Which is what GBR is attempting to do 

here: relitigate its right to possess the Loubar plaintiff’s 

undivided half interest on theories (based on the effect of the 

2007 leases and the partition order) it could have raised in the 

Pecoraro action.

The Restatement (Second) of Judgments is to the same 

effect. (See Canfield v. Security-First Nat. Bank (1939) 13 Cal.2d 

1, 30-31 [although the Restatement “does not constitute a binding 

authority, considering the circumstances under which it has been 

drafted, and its purposes, in the absence of a contrary statute or 

decision in this state, it is entitled to great consideration as an 

argumentative authority”]; Karapetian v. Carolan (1948) 

83 Cal.App.2d 344, 349 [“[t]here can be no doubt that the rules 

announced in the Restatement are sound, and reach the fair and 

equitable result”].) Section 18 of the Restatement explains that 

where, as here, a valid and final judgment “is rendered in favor of 

the plaintiff,” the plaintiff may “maintain an action upon the 
37

judgment,” and “[i]n an action upon the judgment, the defendant 

cannot avail himself of defenses he might have interposed . . . in 

the first action.” (Rest.2d Judgments, § 18.) “It is immaterial 

whether the defendant had a defense to the original action if he 

did not rely on it . . . .” (Id., at com. a; see also Chacon v. Union 

Pacific Railroad (2020) 56 Cal.App.5th 565, 580 [citing section 18 

of the Restatement]; Guerrero v. Department of Corrections & 

Rehabilitation (2018) 28 Cal.App.5th 1091, 1098 [same]; Ferraro 

v. Camarlinghi (2008) 161 Cal.App.4th 509, 531 [same].)

GBR knew all the facts relevant to the 2007 leases and the 

2010 partition order before Catherine and Josephine filed the 

Pecoraro action. True, Catherine and Josephine specifically 

sought to cancel, and the trial court did cancel, the 1963 lease, so 

that they could obtain possession of their undivided one-half 

interest. But GBR knew Catherine and Josephine were seeking 

to quiet title to any interest GBR claimed in their one-half 

interest in the Property. To the extent GBR wanted to argue it 

had the right to possess the one-half interest for a reason other 

than the rights granted under the 1963 lease, including because 

of the 2007 leases and the 2010 partition order, GBR had to raise 

those grounds in the Pecoraro action. 

E. GBR’s Defenses Also Fail on the Merits

Even if claim preclusion did not bar GBR from raising its 

defenses to the Loubar plaintiffs’ right to possess their one-half 

interest, the trial court did not err in ruling against GBR on 

those defenses. GBR contended in the trial court, and contends 

on appeal, that while the 2007 leases may have originally 

granted GBR the right to possess only a collective one-half 

interest in the property, the partition order (in the words of
38

counsel for GBR at oral argument) “changed everything” and 

established that the 2007 leases granted GBR the right to possess

the entire Property. GBR relies on this language in the partition 

order: “The sale and purchase of the property shall be subject to 

all leases . . . affecting the Property referenced in the Title 

Report, and all encumbrances of record.” The trial court rejected 

GBR’s argument, ruling that the 2007 leases “convey[ed] only a 

leasehold interest of an undivided 50% of the Property” and that 

the partition order “did not broaden the coverage and/or scope of 

the 2007 leases.” The trial court was correct.

We interpret the stipulated partition order according to the 

rules governing the interpretation of contracts. (Estate of Jones

(2022) 82 Cal.App.5th 948, 952; Machado v. Myers (2019) 

39 Cal.App.5th 779, 792.) We give effect to the parties’ mutual 

intentions, first examining the judgment’s plain language. 

(Jones, at p. 952; see Landeros v. Pankey (1995) 39 Cal.App.4th 

1167, 1172 [a stipulated order or judgment “is subject to 

construction as to the parties’ intent”].) “Extrinsic evidence is 

allowed to determine the parties’ intent when a stipulated order

[or judgment] is ambiguous,” but “[u]nless there are conflicts in 

the extrinsic evidence, the interpretation of a stipulated . . . 

order [or judgment] is reviewed de novo.” (SLPR, L.L.C. v. San 

Diego Unified Port District (2020) 49 Cal.App.5th 284, 299; see

Rancho Pauma Mutual Water Co. v. Yuima Municipal Water 

Dist. (2015) 239 Cal.App.4th 109, 115.) 

There was no ambiguity in the language of the partition 

order or the leases. The partition order stated the sale of the 

Property would be “subject to all leases . . . affecting the Property 

referenced in the Title Report, and all encumbrances of record.” 

The title report references the 1963 lease and the two 2007 
39

leases. It states the lessee’s interest under each of the 2007 

leases “has been assigned to GBR” and, for each lease, identifies

the instrument number of both a “Memorandum of Lease and 

Purchase Option” and an assignment recorded with the Santa 

Clara County Recorder. Each of the 2007 leases and each of the 

recorded memoranda describes the interest leased under the 

agreement as a “25% tenancy in common interest” in the 

Property (collectively, one-half interest for both leases), and each 

of the subsequent assignments to GBR similarly identifies the

assigned lease as “affecting an undivided 25% interest in the 

Property as . . . evidenced by” the recorded memorandum of lease. 

When the Loubar plaintiffs purchased the property in 2010 

pursuant to the partition, they may, as GBR maintains, very well 

have purchased the Property “subject to” all three leases. The

1963 lease granted the lessee the right to possess an undivided 

one-half interest in the Property, and each of the two 2007 leases

granted the lessee the right to possess an undivided one-fourth 

interest. That’s how GBR had the right to possess the entire 

Property: At the time (i.e., 2010), GBR held the lessee’s rights 

under all three leases (25%+25%+50%). But not after 2013. 

When the court in the Pecoraro action cancelled the 1963 lease,

everything indeed changed, but not in the way GBR wants it to 

have changed. After the Pecoraro judgment, the Property 

remained “subject to” the 2007 leases, but those two leases 

continued to grant GBR the right to possess only a collective 

one-half interest in the property. Without the Pecoraroextinguished rights under the 1963 lease, GBR no longer had the 

right to possess the entire Property. Thus, even if GBR’s theory 

is not barred, it only gets GBR halfway to where it wants to go; 
40

GBR is still 50 percent short of having the right to possess the 

entire property.

GBR essentially asks us to add a new provision to the 

partition order that redefines the scope of the premises leased 

under each of the 2007 leases. GBR wants the partition order to

state that each lease that previously encumbered only a 

fractional interest in the Property now encumbers a 100 percent

interest in Property, so that GBR only needs to possess the 

lessee’s rights under one of the leases to possess the entire 

property. That is not what the partition order says, and it is not 

our role to rewrite the partition order. (See Machado v. Myers, 

supra, 39 Cal.App.5th at p. 792 [“[i]t is not the province of the 

court to add to the provisions” to a contract, “to insert a term not 

found therein,” or “to make a new stipulation for the parties”]; 

Jones v. World Life Research Inst. (1976) 60 Cal.App.3d 836, 840

[same].) And even if the language of the partition order were 

ambiguous (and GBR maintains it is unambiguous), GBR 

presented no extrinsic evidence that would suggest the parties 

intended to broaden the scope of the leases.17

17 GBR also relies on a “Quiet Enjoyment” provision of the 

2007 leases, which states the lessee (GBR) “shall peaceably and 

quietly have, hold and enjoy the Premises . . . without hindrance 

or molestation from Landlord, subject to the terms and provisions 

of the Lease.” That provision does not help GBR. Each lease

defines the “Premises” as a “25% tenancy in common interest in 

the land (and all improvements thereon owned by Landlord).” 

The quiet enjoyment provision simply states GBR has the right to

use the one-fourth undivided interest leased under the 

agreement—an unremarkable proposition that does not advance 

GBR’s position.
41

GBR also argued in the trial court, and argues on appeal,

that the Loubar plaintiffs consented to GBR’s operation of the 

mobilehome park on the entire Property. The trial court ruled 

the Loubar plaintiffs did not consent to their exclusion from their 

one-half interest in the property. GBR has not shown the trial 

court erred. 

There is no ouster where one cotenant consents to the 

other’s possession or use of the property. (Burnscher v. Reagh 

(1958) 164 Cal.App.2d 174, 178; see Spinks v. Equity Residential 

Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1043 

[“‘[w]here there is a consensual entry, there is no tort’”].) GBR’s 

argument is that the Loubar plaintiffs consented to GBR’s 

occupation of the entire Property because they stipulated to the 

partition order. For the reasons discussed, GBR is incorrect. 

Moreover, whether a party consented to an ouster is a factual 

issue, and substantial evidence supported the trial court’s finding 

the Loubar plaintiffs did not consent.18 (See Pay ‘N Pak Stores, 

18 To the extent consent is an affirmative defense to an 

ouster, GBR would have the burden to prove consent at trial. 

(See, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 

920-921 [consent is an affirmative defense to a cause of action for 

nuisance]; but see Spinks v. Equity Residential Briarwood 

Apartments, supra, 171 Cal.App.4th at p. 1043 [“lack of consent is 

an element of the wrong” for trespass].) “‘In the case where the 

trier of fact has expressly or implicitly concluded that the party 

with the burden of proof did not carry the burden and that party 

appeals . . . the question for a reviewing court becomes whether 

the evidence compels a finding in favor of the appellant as a 

matter of law’” because “‘the appellant’s evidence was 

(1) “uncontradicted and unimpeached” and (2) “of such a 

character and weight as to leave no room for a judicial 
42

Inc. v. Superior Court (1989) 210 Cal.App.3d 1404, 1408 [whether 

landlord consented to sublessor leasing property “presented 

a factual dispute”]; see also Antelope Valley Groundwater Cases 

(2018) 30 Cal.App.5th 602, 618, fn.11 [“The issue of an implied 

agreement or consent is ordinarily a factual question to be 

resolved by the trier of fact.”].) Catherine and Josephine sued to 

quiet title to their interest in the Property, free and clear of any 

adverse claims of GBR, and to recover possession, shortly after 

they purchased the property pursuant to partition. The Loubar 

plaintiffs never ceased their attempt to recover possession of 

their one-half interest in Property from GBR (or at least a share 

of the rental income). They did not consent.

F. Judicial Estoppel Does Not Bar the Loubar Plaintiffs’ 

Claims

In the Pecoraro action the Loubar plaintiffs originally 

sought to recover damages from Cy and GBR for their continued 

possession of the Property. In their closing trial brief, however, 

the Loubar plaintiffs stated they would “not pursue their other 

claims” if the court canceled the 1963 lease and quieted title to 

the Property in their favor. GBR argues the trial court erred in

ruling the doctrine of judicial estoppel did not bar the Loubar 

plaintiffs from seeking damages in this action for GBR’s 

continued possession of the Property, even after the Pecoraro

judgment. The trial court did not err.

determination that it was insufficient to support a 

finding.”’” (Dreyer’s Grand Ice Cream, Inc. v. County of 

Kern (2013) 218 Cal.App.4th 828, 838.) Even if lack of consent 

were an element of the Loubar plaintiffs’ claims, rather than an 

affirmative defense, the trial court did not err.
43

“‘“‘Judicial estoppel precludes a party from gaining an 

advantage by taking one position, and then seeking a second 

advantage by taking an incompatible position. [Citations.] The 

doctrine’s dual goals are to maintain the integrity of the judicial 

system and to protect parties from opponents’ unfair strategies.

[Citation.] Application of the doctrine is discretionary.’” 

[Citation.] The doctrine applies when “(1) the same party has 

taken two positions; (2) the positions were taken in judicial or 

quasi-judicial administrative proceedings; (3) the party was 

successful in asserting the first position (i.e., the tribunal adopted 

the position or accepted it as true); (4) the two positions are 

totally inconsistent; and (5) the first position was not taken as a 

result of ignorance, fraud, or mistake.”’” (People v. Castillo (2010) 

49 Cal.4th 145, 155; see Filtzer v. Ernst (2022) 79 Cal.App.5th 

579, 587; Textron Inc. v. Travelers Casualty & Surety Co. (2020) 

45 Cal.App.5th 733, 754.)

“‘The determination of whether judicial estoppel can apply 

to the facts is a question of law reviewed de novo, i.e., 

independently [citations], but the findings of fact upon which the 

application of judicial estoppel is based are reviewed under the 

substantial evidence standard of review. [Citations.] . . . [¶] 

Even if the necessary elements of judicial estoppel are found, 

because judicial estoppel is an equitable doctrine [citations], 

whether it should be applied is a matter within the discretion of 

the trial court. [Citations.] The exercise of discretion for an 

equitable determination is reviewed under an abuse of discretion 

standard.’” (Miller v. Bank of America, N.A. (2013) 

213 Cal.App.4th 1, 10; see DotConnectAfrica Trust v. Internet 

Corp. for Assigned Names & Numbers (2021) 68 Cal.App.5th 
44

1141; Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 

39, 46-47.)

The trial court ruled the Loubar plaintiffs did not take 

totally inconsistent positions. According to the court, a 

“reasonable reading” of the Loubar plaintiffs’ statement they 

would not pursue their other claims was that they would not 

pursue the other causes of action asserted in their complaint—

not that they intended to forfeit their right to seek damages “not 

yet accrued” in future actions. The trial court was correct. The 

Loubar plaintiffs asserted several causes of action in their 

complaint,19 but in their closing brief asked the court to enter 

judgment only on their causes of action for cancellation of the 

1963 lease and to quiet title to the Property. It is not reasonable 

to interpret the statement as a promise not to seek additional 

relief or damages in the event the GBR refused to comply with a 

judgment granting their requested relief.20

The trial court also correctly ruled GBR did not show the 

Loubar plaintiffs were “successful in asserting the first position.” 

A party is successful in asserting a position if “the tribunal 

adopted the position or accepted it as true.” (People v. Castillo, 

supra, 49 Cal.4th at p. 155.) “Judicial estoppel does not apply,” 

19 For example, the Loubar plaintiffs asserted causes of action 

for rescission, breach of fiduciary duty, financial elder abuse, and 

fraudulent concealment, none of which they pursued at trial. 

20 Arguably the Loubar plaintiffs’ claims, in this action, for

damages between August 2012 and May 2013 before the trial 

court entered judgment in the Pecoraro action were inconsistent 

with its prior statements. Any inconsistency, however, is 

immaterial in light of our holding that claim preclusion bars the 

Loubar plaintiffs from seeking damages during that time period.
45

however, “when a party merely advocates inconsistent provisions 

. . . .” (RSL Funding, LLC v. Alford (2015) 239 Cal.App.4th 741, 

748.) Even if the Loubar plaintiffs had advocated inconsistent 

positions by stating they would not pursue other claims, there is 

no reason to believe the trial court in the Pecoraro action 

“adopted” or “accepted” the position. The trial court could only—

and indeed, was required to—cancel the lease and quiet title in 

favor of the Loubar plaintiffs if the court determined they proved 

their causes of action during the trial. (See McDermott Will & 

Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1103

[“We presume the trial court knew and properly applied the law 

absent evidence to the contrary.”].) There is no reason to believe 

the Loubar plaintiffs “gain[ed] an advantage” on these causes of 

action by abandoning other causes of action. (Castillo, at p. 155.)

Finally, even if GBR had established the elements of 

judicial estoppel, reversal would not be warranted. Because 

“judicial estoppel is an ‘equitable doctrine,’ . . . its application, 

even where all elements of the doctrine are met, is ‘discretionary.’

The doctrine must be ‘applied with caution’ and is ‘limited to 

egregious circumstances’” where “‘“‘a party’s inconsistent 

behavior will otherwise result in a miscarriage of justice.’”’”

(Filtzer v. Ernst, supra, 79 Cal.App.5th at p. 588; see Minish v. 

Hanuman Fellowship (2013) 214 Cal.App.4th 437, 449.) GBR 

does not argue why, even assuming the elements of judicial 

estoppel apply, the circumstances here are sufficiently egregious 

that the trial court abused its discretion in declining to apply the 

doctrine. 
46

G. The Trial Court Did Not Err in Ruling Against GBR 

on Its Causes of Action for Declaratory Relief

GBR argues the trial court erred in ruling against GBR and 

in favor of the Loubar plaintiffs on the causes of action for 

declaratory relief in GBR’s cross-complaint. In particular, GBR 

contends the trial court erred in ruling “the 2007 leases give GBR 

the non-exclusive right to possess an undivided 50% interest in 

Parcels One and Three but they do not give GBR any rights as to 

Parcel Eight . . . .”

GBR has a point, but not one that warrants reversal. GBR 

presented uncontradicted evidence the 2007 lease agreements

and related documents describe the property encumbered by the 

leases as including Parcel Eight. The 2007 leases describe the

encumbered property as “all of lots 25 and 26.” Records from the 

Santa Clara County Recorder’s Office describe the 20-acre 

property originally purchased by Lou and Cy’s parents as “all of 

lots 25 and 26,” and in turn describe Parcel One as “all of Lots 25 

and 26,” except for a certain portion of Lot 26, and Parcel Eight 

as “that portion of Lot 26” excepted from Parcel One. Therefore, 

“all of” lot 26, as described in the leases, includes Parcel Eight. 

Moreover, the memorandum of lease GBR’s predecessors recorded

with the County of Santa Clara describe the encumbered 

property as Parcels One, Three,21 and Eight. Similarly, the lease 

21 Parcel Three includes property not part of Lots 25 and 26, 

which the Property now includes following the condemnation

proceeding. If anything, the original 2007 leases may have 

inadvertently omitted Parcel Three, but not Parcel Eight, from 

the leased property.
47

assignment GBR and its predecessors executed described the 

encumbered property as Parcels One, Three, and Eight.22

Any error by the trial court on this cause of action, 

however, was harmless because GBR did not seek a declaration it 

had the right to possess an undivided one-half interest in Parcel 

Eight under the 2007 leases. Instead, GBR sought declarations

that it had the right “to occupy and use all parts of” the Property 

under the 2007 leases and that its “occupation of the Property . . .

does not violate or infringe on any right held by Plaintiffs.” As 

discussed, claim preclusion bars GBR from contending it has the 

right to occupy and use the Property, including Parcel Eight, to 

the exclusion of the Loubar plaintiffs, and GBR’s contentions lack

merit in any event. Therefore, the trial court properly entered

judgment against GBR on its causes of action for declaratory

relief. (See Transamerica Ins. Co. v. Tab Transp., Inc. (1995) 12 

Cal.4th 389, 399, fn. 4 [“‘“[A] ruling or decision, itself correct in 

law, will not be disturbed on appeal merely because given for a 

wrong reason. If right upon any theory of the law applicable to 

the case, it must be sustained regardless of the considerations 

which may have moved the trial court to its conclusion.”’”].)

Finally, GBR argues the trial court erred because it 

“refused to declare GBR’s rights and obligations under the 

Pecoraro judgment” and did “not tell GBR what it needed to do 

22 The trial court ruled the three-year statute of limitations 

governing actions to reform a contract based on mistake barred 

GBR’s claim. (See § 338, subd. (d); North Star Reinsurance Corp. 

v. Superior Court (1992) 10 Cal.App.4th 1815, 1822-1823.) But 

there was nothing to reform. The language of the 2007 leases 

and subsequent assignments all describe the encumbered

property as including Parcel Eight.
48

[to] avoid further suits.” The problem for GBR is that it only 

asked for one thing: to operate the mobilehome park on the entire 

Property, to the exclusion of the Loubar plaintiffs. That it may 

not do (at least not without the consent of the Loubar plaintiffs). 

GBR does not develop an alternative argument or describe an 

alternative declaration of rights it believes it was entitled to, nor 

does GBR cite applicable authority that would support such a 

declaration of rights. Therefore, GBR is not entitled to any other 

relief. (See D. Cummins Corp. v. United States Fidelity & 

Guaranty Co. (2016) 246 Cal.App.4th 1484, 1489 [“‘One cannot 

analyze requested declaratory relief without evaluating the 

nature of the rights and duties that plaintiff is asserting, which 

must follow some recognized or cognizable legal theories that are 

related to subjects and requests for relief that are properly before 

the court.’”]; see also Meridian Financial Services, Inc. v. Phan 

(2021) 67 Cal.App.5th 657, 700 [arguments that are not 

developed are forfeited].) 
49

DISPOSITION

The judgment is reversed. The trial court is directed to 

conduct a new trial on damages, limiting the Loubar plaintiffs’ 

claims for damages to those incurred after January 12, 2017. 

After the new trial, the trial court is directed to enter a new 

judgment on the complaint and cross-complaint that, among 

other things, finds in favor of GBR and against the Loubar 

plaintiffs on the Loubar plaintiffs’ third cause of action of the 

complaint, and in favor of the Loubar plaintiffs and against GBR 

on GBR’s cross-complaint. The parties are to bear their costs on 

appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.