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Filed 4/29/14 Sohal v. P. ex rel. Dept. of Transportation CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sutter)

----

BALBIR SOHAL,

Plaintiff and Appellant,

v.

THE PEOPLE ex rel. DEPARTMENT OF 

TRANSPORTATION,1

Defendant and Respondent.

C073725

(Super. Ct. No. CVCS 12-1511)

Plaintiff Balbir Sohal filed this action seeking damages for an underlying 

“[c]onstitutionally flawed” eminent domain action in which defendant Caltrans violated a 

 

1 The caption of plaintiff’s complaint (utilized throughout the record) incorrectly 

included the State of California as a separate defendant and suggested a second 

defendant, California’s Department of Transportation (Caltrans), acted as the People’s 

relator. We have adopted the correct designation as shown above, which plaintiff Sohal 

now uses in his briefing on appeal. 
2

“special duty” through its wrongful conduct that resulted in an “improper payment” to 

him; he also claimed entitlement to damages in inverse condemnation. Caltrans made a

special motion to strike the complaint. (Code Civ. Proc., § 425.16.)2 The trial court 

granted the motion and entered a judgment of dismissal. After denying Sohal’s motion 

for a new trial, the court awarded legal fees to Caltrans. 

Sohal appeals both from the judgment of dismissal and the order awarding legal 

fees. However, he has not presented any argument regarding the latter (asserting in a 

footnote that neither the right to legal fees nor the amount of the award is an issue on 

appeal). Accordingly we will treat the latter appeal as abandoned and dismiss it. (In re 

Sade C. (1996) 13 Cal.4th 952, 994.) As for his appeal from the judgment of dismissal, 

Sohal contends in essence that the acts he alleged as “wrongful conduct” are analogous to 

either legal malpractice or a breach of fiduciary duty, which are not proper subjects on 

which to premise a special motion to strike. He also argues the evidence produced in 

support of the special motion to strike (which he did not counter with any opposing 

evidence) demonstrates a probability of prevailing at trial in establishing a breach of duty 

and inverse condemnation. We do not find any of his arguments persuasive and shall 

affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

We begin with the litigation that is the prelude to the present case.3 

2007 Litigation (Super. Ct. Sutter County, No. CVCS 07-1309)

In order to make improvements to Highway 99, Caltrans initiated condemnation 

proceedings in 2007 against a 70-acre prune orchard that Sohal leased from the Darrell 

 

2 Undesignated statutory references are to the Code of Civil Procedure.

3 We grant Caltrans’s motion to take judicial notice of matters in the prior case of which 

the trial court took judicial notice and which are part of the record on appeal.
3

and Jane Smith Family Partnership (the Partnership). Sohal had invested substantial 

capital in the process of converting the land from rice fields to orchards in 1992, and as a 

result obtained extremely favorable terms in his 25-year lease. After Caltrans took 

possession in February 2008, there were 10 additional crop years remaining on the lease, 

to which the property would have remained subject in the event the Partnership sold the 

land. The right to condemn the property was not disputed; the parties proceeded to trial 

solely on valuation. 

The only expert to testify at trial was the Partnership’s witness. He based his 

valuation of Sohal’s interest exclusively on the favorable differential between the lease 

terms and the market rate for the remainder of the lease (so-called “bonus rent”), which 

he calculated at $93,000. (He valued the property as a whole at $700,000.) Although 

two exhibits had calculated the present value of Sohal’s interest in his business over the 

next 10 years at $1.2 million (rounded), the expert testified this was not attributable to 

Sohal’s interest in the condemned property and thus did not affect his opinion of its 

value. 

In presenting his case, Sohal accepted the expert’s valuation of his interest in his 

lease. He sought additional compensation for his lost cash flow, based on the exhibits. 

Caltrans and the Partnership moved for a directed verdict based on the expert’s valuation. 

Sohal also moved for a directed verdict based on the cash flow exhibits. The trial court 

granted a directed verdict to Caltrans and the Partnership and denied Sohal’s motion, 

ruling that the expert had not endorsed the exhibits’ methodology and therefore the 

exhibits could not be a proper basis for judgment because the finder of fact in an eminent 

domain action can rely only on expert (or an owner’s) opinion of value and cannot itself 

make a determination from the underlying evidence. The trial court thus entered 

judgment in 2009 for $700,000, of which Sohal’s share was $93,000. 
4

On appeal, we affirmed the judgment in a nonpublished opinion. (People ex. rel. 

Department of Transportation v. Sohal et al. (Jan. 7, 2011, C063301).) We noted the just 

compensation for a lessee had been limited traditionally to the outstanding bonus value of 

the leasehold, and thus the directed verdict on this issue was correct because the evidence 

was undisputed. We rejected Sohal’s argument that he was entitled to additional 

compensation for his lost profits from future harvests. We noted that nothing 

constitutionally requires compensation for loss of goodwill,4 so any right was purely 

statutory. We concluded he failed to establish any of the necessary elements for lost 

goodwill; his reliance on the cash flow exhibits without any expert testimony endorsing 

them was insufficient. He failed to establish any authority on appeal to support his claim 

that lost profits are otherwise a component of the constitutionally mandated just 

compensation. The California Supreme Court denied review on March 16, 2011,

S190396. The United States Supreme Court denied a petition for a writ of certiorari in 

October 2011 (sub nom. Sohal v. Darrell & Jane Smith Family Partnership et al. (2011)

___ U.S. ___ [181 L.Ed.2d 258]). 

2012 Litigation (Super. Ct. Sutter County, No. CVCS 12-1511)

Sohal initiated the present action in July 2012. As with a motion for summary 

judgment, the allegations of the pleading frame the issues in a special motion to strike. 

(Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 654.) Shorn of 

conclusory legal allegations, the complaint asserts some of the preceding underlying 

circumstances and the following facts. 

 

4 “Courts have long accepted that goodwill may be measured by the capitalized value 

of the net income or profits of a business or by some similar method of calculating the 

present value of anticipated profits.” (People ex rel. Dept. of Transportation v. Muller

(1984) 36 Cal.3d 263, 271.)
5

In the prior trial, it was uncontroverted that Sohal was unable to relocate, because 

Caltrans failed to present any evidence of another available leasehold or his financial 

ability to finance a relocation. Caltrans, aware that bonus rent was (in Sohal’s opinion) 

an improper measure of just and equitable compensation as a result of this circumstance, 

nonetheless pursued this litigation theory in the trial court and on appeal. Caltrans thus 

failed to “own up to the particular procedural and substantive facts underpinning Sohal’s 

property right” and instead relied on inapposite authority in support of its motion for a 

directed verdict. Caltrans also incorrectly asserted in the litigation that the statutory right 

to goodwill applied to Sohal; in his opinion, it is inapposite because he would have the 

same single buyer regardless of his location and thus would not have diminished 

“patronage.” This deceptive conduct contrasted with Sohal’s own forthright conduct, in 

which he called attention to a $50,000 mistake in his favor. As a result of the conduct of 

Caltrans, there was “an improper payment to the plaintiff.” 

In his government claims form appended to the complaint (which sought damages 

in the amount of the cash flow exhibits), Sohal specified the following actions as 

wrongful conduct. Caltrans made a challenge to the sufficiency of his expert disclosure 

in a “studied and crafted manner” on technical grounds, and also challenged his proposed 

testimony “as to . . . his . . . just and due compensation.” Caltrans was aware of his 

inability to relocate and yet adhered to the theory of bonus rent, whereas the proper 

standard required that he “be viewed as having occupied the property absent 

condemnation and [entitled to] that which would have then flowed to him” as his 

damages. Caltrans presented improper types of comparable property at trial. Although 

his evaluation of his just compensation was in fact in evidence, Caltrans did not correct 

the trial court (in connection with its motion for directed verdict) when the court stated 

that Sohal had not presented any evidence or testimony on the point. Caltrans also 

disregarded the uncontradicted evidence of his inability to relocate, which refuted the 
6

basis for the motion. Refusing to change its incorrect theories of the case, Caltrans 

“allowed an incorrect position to be put forward” in this court and did not confess its 

error5 in any responses to his petitions for rehearing, review, and certiorari. 

Caltrans demurred to the complaint. The trial court overruled the demurrer (the 

actual order is not part of the record on appeal). Caltrans answered and made its special 

motion to strike. 

In addition to the judicially noticed files of the prior litigation, the motion included 

declarations from the attorneys who represented Caltrans in the prior litigation. These 

made the self-evident point that all of the actions specified in the complaint occurred in 

the course of a judicial proceeding, in connection with issues under the courts’ review, 

to achieve the object of the Caltrans litigation. They also identified their objections to the 

cash flow exhibits (or any testimony from Sohal based on them) as being premised on the 

general inadmissibility of evidence of future business profits in an eminent domain 

proceeding as speculative. (E.g., City of Stockton v. Albert Brocchini Farms, Inc. (2001) 

92 Cal.App.4th 193, 198-199 [“Generally, a defendant may not present evidence of 

income from a business that is conducted on the condemned property”].) 

Sohal’s opposition did not include any material exhibits. He explicitly conceded 

that the conduct identified in the complaint was protected activity (“No argument about 

that”) before proceeding to assert that this conduct was nonetheless akin to legal 

malpractice or malicious prosecution, both of which he asserted are not subject to special 

motions to strike (an incorrect assertion, as we later note, with respect to the latter). 

 

5 This commences Sohal’s repeated evocations of the principle that an attorney is liable 

for damages in an action for malicious prosecution for continuing to litigate an action 

after discovering that it lacks probable cause (Zamos v. Stroud (2004) 32 Cal.4th 958, 

970 (Zamos)), which he transmutes without explanation into a “duty” to adversaries to 

“adjust and recalibrate their legal and factual positions.” 
7

The trial court found Caltrans had established that its actions were protected 

activity under the statute. The court also found that Sohal had not carried his burden of 

producing any admissible evidence establishing a prima facie case in support of his 

complaint. It therefore granted Caltrans’s special motion to strike. 

DISCUSSION

I. Standards of Review

In section 425.16, the Legislature created a process for piercing the pleadings 

at an early stage of litigation (unlike a demurrer or an ordinary motion to strike) if the 

defendant is able to demonstrate that its underlying conduct comes within one of the 

categories of constitutional rights that the statute seeks to protect. (Simmons v. Allstate 

Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.) This requires us to determine if the alleged 

acts underlying a cause of action “arise from” activity protected under section 425.16 

(Vargas v. City of Salinas (2009) 46 Cal.4th 1, 14, 16, 20) and thus warrant the expedited 

and summary evaluation of the merits of the action at the pleading stage (Graffiti 

Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1211). 

Protected activity (which Sohal persists in describing as “permitted” activity) is an act in 

furtherance of the rights to free speech and petition with respect to a public issue. 

(§ 425.16, subds. (b)(1) & (e).) The focus is not the substance of a count but whether it is 

premised on a protected act, rather than the act being only either a catalyst for the 

litigation or evidence of liability. (Navellier v. Sletten (2002) 29 Cal.4th 82, 92; USA 

Waste of California, Inc. v. City of Irwindale (2010) 184 Cal.App.4th 53, 62; Pico 

Rivera, supra, 181 Cal.App.4th at p. 1215 [even though challenged speech assists in 

telling the evidentiary story, claims are based on city’s duties under law to conduct 

competitive bidding].)

If a defendant satisfies this burden, the plaintiff must produce evidence sufficient 

to establish a prima facie case of prevailing on the complaint. (Jarrow Formulas, Inc v. 
8

LaMarche (2003) 31 Cal.4th 728, 741 (Jarrow Formulas); Roberts v. Los Angeles 

County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614.) A plaintiff also bears the 

burden of proof at this stage, which is akin to an opposition to motions for nonsuit, 

directed verdict, or summary judgment. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 

26.) As with opposition to a summary judgment motion, a plaintiff may not rely on the 

allegations of the complaint to oppose a special motion to strike, and instead must 

produce competent admissible evidence. (Schoendorf v. U.D. Registry, Inc. (2002) 

97 Cal.App.4th 227, 236.) A defendant, however, has the burden of proof to establish 

an affirmative defense to the action. (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 969 

(Seltzer).) We review a special motion to strike de novo. (Paul for Council v. Hanyecz

(2001) 85 Cal.App.4th 1356, 1364.)

II. Protected Conduct Is at Issue

We will not belabor our analysis of the first step. The acts on which Sohal 

premises his putative causes of action are quintessential examples of protected petitioning 

activity. (See Kearney v. Foley & Lardner, LLP (9th Cir. 2009) 566 F.3d 826, 837 

[condemnation action is petitioning activity on behalf of citizens to establish public use].) 

His attempted analogy to the exclusion from the statute of otherwise protected petitioning 

activities that result in malpractice falls flat. (Cf. Kolar v. Donahue, McIntosh & 

Hammerton (2006) 145 Cal.App.4th 1532, 1540.) His is a third party claim against an 

opponent’s attorney for litigation activities, which makes the principle in Kolar—

premised on an attorney’s duty to represent a client competently—utterly inapposite. 

(Seltzer, supra, 182 Cal.App.4th at p. 968; see Kolar, at p. 1540.) The same is true of his 

invocation of Castleman v. Sagaser (2013) 216 Cal.App.4th 481 as being “[s]omewhat 

analogous.” It is not at all analogous, because it is premised on an attorney’s fiduciary 

duty of loyalty to a client (id. at p. 493), which does not exist as to an adversary. 

Although Sohal extracts from City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871, 
9

what he calls the “quasi-judicial obligation” on the part of government attorneys to their 

adversaries to ensure the rendering of impartial justice,6 the case never suggests a breach 

of this duty is independently actionable in tort; it simply reversed the judgment on the 

basis of affirmative misconduct on the part of the condemnor’s attorneys in misleading 

the jury with false argument. (City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 871.) 

He similarly fails to provide any authority for premising an independent action either on 

the professional obligation to deal truthfully with adversaries and the courts (Bus. & Prof. 

Code, § 6068, subd. (d)), or the right to damages for continued malicious prosecution 

under Zamos, supra, 32 Cal.4th 958. Finally, while the gist of Sohal’s complaint is 

indeed “somewhat” akin to an action for malicious prosecution (albeit with the significant 

distinction that Caltrans prevailed rather than failed in its litigation against him), it is a 

pointless analogy to urge because conduct resulting in malicious prosecution is subject to 

a special motion to strike. (Jarrow Formulas, supra, 31 Cal.4th at p. 732.) 

III. No Probability of Prevailing at Trial

His complaint thus being properly subject to a special motion to strike, Sohal had 

to establish a prima facie case in support of its allegations based on evidence. The only 

evidence submitted with the motion were the Caltrans declarations, which Sohal 

essentially adopted as his own. These declarations established that all the acts included 

in the exhibit to the complaint were the litigation activities of the Caltrans attorneys in the 

course of a judicial proceeding, which were related to the proceeding and authorized 

under the law to achieve the object of the proceeding. This established conclusively that 

the elements of the absolute litigation privilege of Civil Code section 47 applied to the 

conduct. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 

 

6 County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35, 49 described the case 

(and others) as representing the principle in the context of a “class of civil cases in which 

counsel representing the government must be absolutely neutral.”
10

122 Cal.App.4th 1049, 1058.) Absent some species of extrinsic fraud, it was plaintiff 

Sohal’s burden in the course of the underlying litigation to expose any bias, 

misrepresentation, or falsity on the part of Caltrans, and thus even fraudulent conduct on 

the part of opposing counsel is not actionable. (Ibid.; Seltzer, supra, 182 Cal.App.4th at 

p. 970; Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 28 (Home Ins. Co.) 

[fraudulent misrepresentation of policy limits, which induced lower settlement, protected 

under litigation privilege].) Sohal did not produce any evidence of extrajudicial acts on 

the part of Caltrans that unknown to him prevented him from prevailing (such as 

spoliation of evidence, which is not subject to the litigation privilege—Civ. Code, § 47, 

subd. (b)(2)). As a result, even if he could premise some cause of action in tort on the 

alleged conduct (a dubious concept that we do not need to explore further), the conduct 

is absolutely privileged and he does not have any possibility of prevailing at trial.

As for Sohal’s cause of action for inverse condemnation,7 his argument appears to 

suggest the acts of the Caltrans attorneys in the underlying action erroneously depressed 

the amount of the damages he recovered. However, Sohal has already had his day in 

court on the issue of his entitlement to just damages for the premature termination of his 

lease. That he claims to have been wrongly prevented from litigating his present theory

of compensation does not entitle him to disregard the basic precept that an issue actually 

litigated, which is the subject of a final judgment, is binding in a subsequent proceeding 

against the same party. “Our judicial system is intended for the resolution of disputes, 

rather than their perpetuation through the ages.” (Weikel v. TCW Realty Fund II Holding 

Co. (1997) 55 Cal.App.4th 1234, 1251.) Without finality of judgments, there would be 

 

7 See City of Monterey v. Del Monte Dunes at Monterey, Ltd. (1999) 526 U.S. 687, 745-

748 [143 L.Ed.2d 882, 928-930] (conc. opn. of Souter, J.—discussing doubtful aptness of 

treating inverse condemnation as a species of tort); cf. Holtz v. Superior Court (1970) 

3 Cal.3d 296, 303 (basis for inverse condemnation damages not coextensive with tort 

law). 
11

no stability in transactions, and thus the doctrine of res judicata “is the service rendered 

by the courts” to society in furtherance of this interest. (Rest.2d Judgments (1982) 

Introduction, p. 11.) While the principle is difficult for lay people (and some attorneys) 

to appreciate, the importance to society of finality will generally transcend an individual’s 

perception of an unjust result from an arguably incorrect application of the law; an 

erroneous judgment is thus entitled to the same effect as any other. (People v. Cotton 

Belt. Ins. Co. (1983) 143 Cal.App.3d 805, 808.) 

In modern terminology, res judicata has two aspects after a final judgment. Claim 

preclusion prohibits subsequent litigation between the same parties on the same “cause of 

action.” Issue preclusion operates as an estoppel against a losing party for issues actually 

litigated and resolved in the prior final judgment. (Knickerbocker v. City of Stockton

(1988) 199 Cal.App.3d 235, 242; Rest.2d Judgments, supra, pp. 1, 4.) Even if we 

entertain the unwarranted assumption that a different “primary right” is at issue in the 

present litigation—making claim preclusion inapplicable (Pitts v. City of Sacramento

(2006) 138 Cal.App.4th 853, 857)—the value of the lease was an issue actually litigated 

between the same parties and is now the subject of a final judgment.

The only basis for avoiding issue preclusion would be allegations sufficient to 

establish extrinsic fraud as a basis for disregarding the prior judgment. (In re Marriage 

of Melton (1994) 28 Cal.App.4th 931, 937.) The “essence” of extrinsic fraud is one 

litigant’s prevention of the other from properly litigating the case, either by keeping the 

opponent in ignorance “or in some other manner” concealing a right from the opponent. 

(Ibid.; see 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, 

§ 225, p. 832.) This does not include suppressing material evidence, perjury, or even 

presenting false documents; where litigants have an opportunity to protect their interests, 

any misrepresentation on the part of an opponent is considered “intrinsic” and not a basis 

for relief from the prior judgment. (Home Ins. Co., supra, 96 Cal.App.4th at p. 27.) 
12

Nothing prevented Sohal in the underlying case from making the same challenges to the 

conduct of that litigation that he raises here. As a result, even if the litigation privilege 

does not otherwise absolutely protect the Caltrans conduct at issue from liability, Sohal is 

precluded from relitigating the issue of his compensation damages in the present action in 

the guise of inverse condemnation.

DISPOSITION

The judgment of dismissal is affirmed. The appeal from the order awarding legal 

fees is dismissed. Caltrans shall recover its costs on appeal. (Cal. Rules of Court, rule 

8.278(a)(1), (2).) 

 BUTZ , Acting P. J.

We concur:

 MAURO , J.

 HOCH , J.