Filed 11/12/20 Vaughn v. Darwish CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JACK VAUGHN et al.,

Plaintiffs and Appellants,

v.

BARBARA DARWISH et al.,

Defendants and 

Appellants.

 B296693 (Consolidated with

 B305132)

 (Los Angeles County

 Super. Ct. No. BC521721) 

APPEALS from a judgment and post-judgment order of the 

Superior Court of Los Angeles County, Richard L. Fruin, Jr., 

Judge. Affirmed.

Mesisca Riley & Kreitenberg, Dennis P. Riley and Rena E. 

Kreitenberg for Plaintiffs and Appellants.

Stillman & Associates and Philip H. Stillman for 

Defendants and Appellants.

* * * * * *
2

This is the latest chapter in a seemingly unending tome of 

litigation between a landlord and its now-former tenants. What 

started as a landlord-tenant dispute back in 2010 has in the 

ensuing decade spawned eight lawsuits,1 seven appeals,2 and five 

writ proceedings.3 Throughout the course of this litigation,

including the two consolidated appeals before us now, the parties 

and their attorneys have repeatedly misstated the facts and 

procedural history of this litigation, repeatedly misstated the law, 

repeatedly changed their positions on issues, and repeatedly 

sought to re-litigate previously decided issues. 

These appeals arise out of the malicious prosecution 

chapter of the saga. Back in 2012, the landlord brought six 

separate unlawful detainer actions, one against each tenant

living in a house. The unlawful detainer court tried two of the 

actions as bellwethers and ruled for the tenants; thereafter, the 

1 These lawsuits include (1-3) three rounds of unlawful 

detainer actions by the landlord; the tenants’ civil lawsuits for (4) 

damages, (5) malicious prosecution, and (6) fraudulent transfer; 

and the landlord’s civil actions for (7) fraudulent transfer, and (8) 

destruction of property.

2 These appeals include (1) a 2015 appeal from the denial of 

the anti-SLAPP motion in this malicious prosecution lawsuit; (2) 

an appeal from the tenants’ civil action for damages; (3) an 

appeal from the tenants’ fraudulent transfer action; (4) an appeal 

from the landlord’s fraudulent transfer action; (5) a 2017 appeal 

from the grant of judgment on the pleadings as to two tenants in 

this malicious prosecution lawsuit; (6) this appeal; and (7) an

appeal in the landlord’s fraudulent transfer action.

3 These writ proceedings include B304993, B300230, 

B295510, B292830, and B259269.
3

landlord voluntarily dismissed the remaining four unlawful 

detainer actions. In 2013, all six tenants sued the landlord for 

malicious prosecution of the unlawful detainer actions. In 2016, 

the trial court ruled that the landlord was entitled to judgment 

on the pleadings as to the two bellwether tenants because the 

unlawful detainer court’s denial of the tenants’ midtrial motion 

for judgment under Code of Civil Procedure section 631.84

operated as a binding determination that the landlord had 

probable cause to bring its unlawful detainer action against those 

two bellwether tenants. We subsequently affirmed. (Hart v. 

Darwish (2017) 12 Cal.App.5th 218 (Hart).) In 2019, the trial 

court ruled that the landlord was entitled to judgment as to the 

remaining tenants, but did so on the ground that the landlord’s

voluntary dismissal of the unlawful detainer actions against 

those tenants did not constitute a “favorable termination” on the 

merits. Those tenants now appeal. We conclude that the trial 

court’s “favorable termination” ruling is incorrect, but its 

ultimate ruling in the landlord’s favor is correct because its prior 

finding of probable cause as to the two bellwether tenants 

necessarily applies as a matter of law to the remaining tenants. 

The landlord has also appealed the trial court’s post-judgment 

order refusing to award contractual attorney fees, but we 

conclude that this ruling is correct.

We accordingly affirm.

4 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
4

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Acquisition of rental premises

This entire saga revolves around a two-story, single-family 

house located on Hyperion Avenue in Los Angeles (the house). 

By 2010, six unrelated people—Jack Vaughn (Vaughn), 

Esmeralda Hernandez (Hernandez), Wayne Hart (Hart), Dennis 

Goldson (Goldson), Carlos Rodriguez (Rodriguez), and Ernest 

Johnson (Johnson) (collectively, tenants)—were living in the 

house. 

In August 2010, the house was acquired at a foreclosure 

sale by a trust whose trustee was an entity controlled by Barbara 

Darwish (Barbara).5 Since then, title to the house has been held 

by Gingko Rose, Ltd., whose members include Barbara, her 

husband David Darwish (David), and another entity (Logerm,

LLC) controlled by the Darwishes (collectively, the landlord).

B. 2012 unlawful detainer action

1. The three-day notice and pleadings 

On April 24, 2012, the landlord served the tenants with 

three-day notices to pay 10 months’ worth of “delinquent rent” or 

to “quit [the] premises.” 

The next month, after the tenants did not pay this 

“delinquent rent,” the landlord filed six separate unlawful 

detainer actions, one against each tenant.6 Except for differences 

5 Because the Darwishes share the same surname, we will 

use their first names to avoid confusion. We mean no disrespect.

6 This was the landlord’s third round of unlawful detainers. 

In the first round, the trial court entered judgment for the 

tenants after finding that the unlawful detainer was brought 
5

in the tenants’ names and the amounts of delinquent rent, all six 

unlawful detainer actions had “identical” pleadings and involved 

“identical” facts. 

2. The bellwether trial

Rather than try all six unlawful detainer actions together, 

the parties agreed to try the actions against Hart and Rodriguez 

together as a bellwether trial. 

After the landlord rested its case-in-chief, Hart and 

Rodriguez moved for judgment pursuant to section 631.8 on the 

grounds that (1) the house was not properly registered under the 

applicable rent control ordinance, (2) the three-day notices were 

defective because they overstated the amount of rent by (a) 

demanding 10 months of “delinquent rent” when the house had 

been properly registered for only one month and (b) not deducting 

the amounts paid by the tenants for utilities, and (3) the threeday notices were defective because they did not allege any specific 

breach of the rental agreements. After weighing the evidence, 

the trial court immediately denied the section 631.8 motion on 

the last ground and, at the conclusion of the trial, denied the 

motion on the remaining grounds.

Despite denying Hart’s and Rodriguez’s section 631.8 

motion, the court ultimately ruled in their favor after finding that 

the landlord did not “carry its burden of proof on numerous 

required elements of proof.” Specifically, the court concluded that 

(1) the three-day notices were “defective” because, by demanding 

10 months’ rent with no deduction of tenant payments of utilities, 

prematurely. In the second round, the trial court entered 

judgment for the tenants after finding that the tenants had not 

improperly excluded the landlord from the premises to conduct 

repairs. 
6

the notices “overstated” the amount of rent due, (2) the three-day 

notices wrongly demanded payment by cashier’s check, postal 

money order or cash, and (3) the house was never properly 

registered under the applicable rent control ordinance and the 

landlord did not offer to pay Hart and Rodriguez relocation fees.

3. Voluntary dismissal of remaining four unlawful 

detainer actions

In December 2012, the landlord dismissed the unlawful 

detainer actions against the remaining four tenants. The 

dismissal came after the tenants’ attorney repeatedly requested a 

dismissal and alternatively threatened to move for summary 

judgment based on the outcome of the bellwether trial. Although 

both the landlord and the landlord’s attorney explained that they 

dismissed the remaining actions due to the belief that they would 

get “the same result” as in the identical bellwether trial, the 

landlord’s attorney later testified to her legal opinion that the 

judgment in the bellwether trial rested on a “technical issue with 

the three-day notice being overstated.” 

II. Procedural Background

A. Malicious prosecution complaint

In September 2013, the tenants filed a malicious 

prosecution action against the landlord and against the landlord’s 

attorney (collectively, the landlord defendants) for filing the 2012 

unlawful detainer actions. 

B. Judgment on the pleadings as to Hart and 

Rodriguez

The landlord defendants moved for judgment on the 

pleadings, arguing that the trial court’s denial of the tenants’ 

section 631.8 motion in the bellwether trial amounted to a finding 

by that court that the landlord had probable cause to bring the 

unlawful detainer actions, which precluded liability for malicious 
7

prosecution as a matter of law. (Hart, supra, 12 Cal.App.5th at p. 

222.) The trial court granted the motion as to Hart and 

Rodriguez. (Ibid.) We affirmed, reasoning that the trial court’s 

decision not to grant judgment under section 631.8 in the 

bellwether trial was a ruling “‘on the merits’” and was not 

induced by “‘“the knowing use of false and perjured testimony,”’” 

such that it constituted “conclusive” proof that the landlord had 

probable cause to file and prosecute the underlying unlawful 

detainer actions against Hart and Rodriguez. (Id. at pp. 225-

227.) 

C. Trial on remaining tenants

Following remand from Hart and the death of Goldson, the 

remaining three tenants—Vaughn, Hernandez and Johnson—

proceeded to trial on their malicious prosecution claim. Over 

those tenants’ objections, the court bifurcated and held a bench 

trial on the issues of whether (1) the landlord had probable cause 

to file the 2012 unlawful detainer actions, and (2) the landlord’s 

post-bellwether trial dismissal of the remaining unlawful 

detainer actions constituted a “favorable termination” on the 

merits.

After a three-day trial, the landlord defendants moved for 

judgment under section 631.8.7 In a tentative and a final 

statement of decision issued after Vaughn, Hernandez and 

Johnson filed objections, the trial court granted the motion for 

judgment. The court reaffirmed its prior ruling denying 

summary judgment to the landlord defendants on the ground 

7 Although the landlord defendants filed a written 

withdrawal of their motion before the court issued a ruling, they 

effectively withdrew their withdrawal by not objecting to the 

court’s subsequent grant of the motion. 
8

that the landlord did not have probable cause to file and 

prosecute the 2012 unlawful detainer actions. In the court’s 

view, the denial of the section 631.8 motion in the bellwether trial 

did not mean that the landlord had probable cause to file and 

prosecute the unlawful detainer actions against the tenants other 

than Hart and Rodriguez because the trial against those other 

tenants would “not necessarily be the same” because it “would be 

informed by what happened in the” bellwether trial. However, 

the court held that relief under section 631.8 was still warranted 

because the landlord’s voluntary dismissal of its 2012 unlawful 

detainer actions against those tenants did not constitute a 

“favorable termination” of those actions “on the merits.” 

Although the voluntary dismissals flowed from the unlawful 

detainer court’s ruling for Hart and Rodriguez in the bellwether 

trial, the court reasoned, that ruling was based on “procedural or 

technical deficiencies in the [unlawful detainer] complaints 

rather than a substantive deficiency” “because the landlord”

“could have corrected” those deficiencies by “prepar[ing] and 

serv[ing]” a new “[three]-day notice that did not overstate the 

amount of rent.” 

The trial court entered judgment for the landlord 

defendants on March 19, 2019. 

D. Tenants’ appeal

On March 22, 2019, Vaughn, Hernandez and Johnson filed 

a timely notice of appeal. 

E. The landlord’s motion for attorney fees

Following the entry of judgment, the landlord filed a 

motion seeking $465,238.75 in attorney fees based on an attorney 

fees clause in the tenants’ leases with prior lessors. The trial 

court denied the motion. In particular, the court ruled that (1)
9

the landlord defendants were not entitled to fees against three of 

the tenants (namely, Goldson, Rodriguez and Johnson) because 

they did not produce those tenants’ leases, thereby precluding an 

award of contract-based attorney fees, and (2) the landlord 

defendants were not entitled to fees against the remaining three 

tenants (Vaughn, Hernandez and Hart) because the malicious 

prosecution action was “not brought for any of the . . . purposes 

enumerated in the attorney’s fees provision in [those tenants’] 

rental agreements.” 

F. The landlord’s appeal

The landlord filed a timely notice of appeal of the order 

denying its attorney fees motion. 

G. Consolidation

We subsequently consolidated the tenants’ appeal and the 

landlord’s appeal. 

DISCUSSION

I. Tenants’ Appeal

The three remaining tenants—Vaughn, Hernandez and 

Johnson—argue that the trial court erred in granting the 

landlord defendants’ section 631.8 motion for judgment. They 

assert that the landlord’s voluntary dismissal of its unlawful 

detainer actions against them was a favorable termination on the 

merits, and that the trial court erred in concluding otherwise. As 

explained below, we agree with the tenants on this point. 

However, also as explained below, we affirm the trial court’s 

grant of the section 631.8 motion because the landlord had 

probable cause to file and prosecute its action against those 

tenants as a matter of law.

A. The relevant law, generally

1. Section 631.8 motions for judgment
10

If, after the plaintiff in a civil case rests its case-in-chief, a 

trial court weighs the plaintiff’s evidence and concludes that “the 

plaintiff [has] failed to sustain its burden of proof,” the court 

“may”—under section 631.8—“make findings of fact” and “render 

a judgment” in favor of the defense. (§ 631.8, subd. (a); People ex 

rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 

Cal.App.4th 1006, 1012 (Cars 4 Causes); Pettus v. Cole (1996) 49 

Cal.App.4th 402, 424 (Pettus).) It is entirely up to the court 

whether to exercise this power, as the court may always “decline 

to render any judgment until the close of all the evidence.” 

(§ 631.8, subd. (a); Erika K. v. Brett D. (2008) 161 Cal.App.4th 

1259, 1271 (Erika K.) [noting that a trial court has “absolute 

discretion to deny a section 631.8 motion”].) When a court 

exercises this discretionary power, we independently review its 

legal rulings; we review its factual findings for substantial 

evidence, although when a trial court grants a section 631.8 

motion at the close of a plaintiff’s case, “the question . . . becomes 

whether the evidence compels a finding in favor of [the 

defendant] as a matter of law.” (Pettus, at pp. 424-425; Cars 4 

Causes, at p. 1012; Ericksson v. Nunnink (2015) 233 Cal.App.4th 

708, 732-733.)

2. Malicious prosecution

A plaintiff seeking a claim for malicious prosecution based 

on the initiation of a prior lawsuit must prove that the prior 

lawsuit was (1) terminated in the malicious prosecution plaintiff’s 

favor, (2) “brought without probable cause,” and (3) “initiated 

with malice.” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 

767, 775 (Parrish); Sheldon Appel Co. v. Albert & Oliker (1989) 47 

Cal.3d 863, 871 (Sheldon Appel).) 
11

B. Favorable termination

To establish the first, “favorable termination” element of a 

malicious prosecution claim, the malicious prosecution plaintiff 

must show both that (1) the prior lawsuit was terminated in her 

favor (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 342 

(Casa Herrera)), and (2) the termination “reflect[s] . . . [the 

plaintiff’s] innocence of the . . . wrongful conduct” “alleged” in 

that prior lawsuit (Sycamore Ridge Apartments LLC v. Naumann

(2007) 157 Cal.App.4th 1385, 1399 (Sycamore Ridge); Lackner v. 

LaCroix (1979) 25 Cal.3d 747, 749 (Lackner)). In other words, the 

termination must rest on a finding that the prior lawsuit 

“‘“lack[ed] merit”’” or otherwise “‘“would not succeed”’” (Sycamore

Ridge, at p. 1399; Lackner, at p. 751; Eells v. Rosenblum (1995) 

36 Cal.App.4th 1848, 1854 (Eells); Sierra Club Foundation v. 

Graham (1999) 72 Cal.App.4th 1135, 1149 (Sierra Club)), rather 

than on a “technical or procedural” “ground[].” (Lackner, at p. 

750; Casa Herrera, at pp. 342-343.) The reason for this 

requirement is straightforward: Only when the termination of 

the prior lawsuit is on the merits does it “reflect[] . . . the 

underlying defendant’s innocence.” (Eells, at p. 1855.) Any 

doubts are resolved against the termination being on the merits. 

(Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335 (Villa).)

When the prior lawsuit against the malicious prosecution 

plaintiff is voluntarily dismissed, that dismissal is presumed to 

be a favorable termination on the merits.8 (Gruber v. Gruber 

(2020) 48 Cal.App.5th 529, 538 (Gruber); Sycamore Ridge, supra, 

157 Cal.App.4th at pp. 1400-1401; Villa, supra, 4 Cal.App.4th at

p. 1335 [noting that voluntary dismissal is “considered” a 

8 The landlord defendants deny the existence of any such 

presumption, and in so doing, misstate the law.
12

favorable termination on the merits “[i]n most cases”].) The 

presumption is grounded in the “‘natural assumption that one 

does not simply abandon a meritorious action once instituted.’” 

(Lackner, supra, 25 Cal.3d at p. 751.) But the presumption may 

be rebutted by a showing that the dismissal was for reasons other 

than the dim likelihood of success on the merits. (JSJ Limited 

Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1524 [“[t]he 

reasons for the dismissal of the action [may] be examined”].) In 

assessing a party’s reasons for voluntarily dismissing the prior 

lawsuit, the malicious prosecution court may examine not only 

the testimony of the dismissing party but also what is 

“reasonably suggested” by the circumstances of the dismissal 

(Sycamore Ridge, at p. 1400), including whether the dismissal 

came after adverse rulings against the dismissing party 

(Contemporary Services Corp. v. Staff Pro, Inc. (2007) 152 

Cal.App.4th 1043, 1057). Although the “element of favorable 

termination” is generally a legal question “for the court to decide” 

(Sierra Club, supra, 72 Cal.App.4th at p. 1149), a party’s reasons 

for voluntarily dismissing a claim present “a question of fact” 

(Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808).

In this case, the landlord’s voluntary dismissal of the 

unlawful detainer actions against Vaughn, Hernandez and 

Johnson is presumptively a favorable termination on the merits. 

What is more, the landlord defendants have not rebutted that 

presumption. The voluntary dismissal came after the landlord 

lost the bellwether trial and after the remaining tenants 

threatened to move for summary judgment on the basis of the 

bellwether trial’s result. Indeed, both the landlord and the 

landlord’s attorney admitted that the reason for the voluntary 

dismissal was their belief that the outcome of the bellwether trial 
13

would lead to the “same result” and “same decision” in the 

remaining unlawful detainer actions. Consequently, there is no 

doubt that the voluntary dismissal of these actions was a 

reflection of their likely merit and, as such, constituted a 

favorable termination on the merits.

The trial court reached a contrary conclusion, but did so by 

relying on the wrong legal standard. As explained above, the 

court reasoned that the voluntary dismissal of the unlawful 

detainer actions against the non-bellwether tenants was 

“procedural” and “technical” (rather than “on the merits”)

because the trial court’s judgment for the bellwether tenants 

rested on defects in the three-day notices that “could [be] 

corrected” by serving new three-day notices stating the correct 

amount of delinquent rent. Under this reasoning, we observe, 

any ruling that does not forever oust a claim from court would be 

“procedural” and “technical” (and thus never subject to a 

malicious prosecution claim). 

We reject this reasoning for three reasons. First, it is 

contrary to longstanding authority holding that a party’s ability

to seek relief in a new proceeding does not mean that the prior 

proceeding was terminated for a “procedural” and “technical” 

reason. (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1401 [a 

party’s “option to file a new action . . . at the time she voluntarily 

dismissed her claims” does not prevent the prior dismissal from 

constituting a “favorable termination”]; Jaffe v. Stone (1941) 18 

Cal.2d 146, 152 (Jaffe) [a party’s ability to initiate a “new 

proceeding” does not mean that prior “proceeding is [not] finally 

terminated” on the merits], italics omitted; Sierra Club, supra, 72 

Cal.App.4th at p. 1151 [prior proceeding may be favorably 

terminated on the merits even if it is “not . . . incapable of revival 
14

or” does not “constitute a bar to further prosecution for the same 

offense”]; see generally Hurgren v. Union Mut. Life Ins. Co.

(1904) 141 Cal. 585, 587 [“[t]he fact that . . . legal termination [of 

the prior lawsuit] would not be a bar to another civil suit 

. . . founded on the same alleged cause is no defense to the action

for malicious prosecution”].) This authority applies whenever the 

prior action was an “independent, separate adversarial” 

proceeding “having a procedural life of its own” (rather than 

being a “subsidiary or purely defensive proceeding”) (Sierra Club, 

at p. 1152; Camarena v. Sequoia Ins. Co. (1987) 190 Cal.App.3d 

1089, 1094), and the 2012 unlawful detainer actions are 

unquestionably “independent” of, and “separate” from, any 

subsequent unlawful detainer actions that the landlord might 

have elected to file. Second, the trial court’s reasoning, by 

looking to the “legal tenability” of the rejected claim in future 

lawsuits, is contrary to the authority holding that “‘the legal 

tenability of the underlying action is not the standard by which to 

judge whether the action was terminated in [[the] plaintiff’s] 

favor.’” (Crowley v. Katleman (1994) 8 Cal.4th 666, 686.) Third, 

the trial court’s reasoning, by treating the landlord’s failure to 

follow the substantive rules for the three-day notices as 

“technical” and “procedural” as long as it could re-file a lawsuit 

that follows those rules, is contrary to the authority holding that 

termination of a prior lawsuit due to the prior plaintiff’s deficient 

prosecution of that prior lawsuit is neither a “technical” nor 

“procedural” termination. (Lumpkin v. Friedman (1982) 131 

Cal.App.3d 450, 455.)

The landlord defendants offer two further justifications for 

affirming the trial court’s conclusion that the voluntary 

dismissals were “technical” and “procedural.” 
15

First, the landlord defendants assert that a trial court’s 

rejection of an unlawful detainer action due to defects with the 

three-day notice—and hence a party’s subsequent decision to 

voluntarily dismiss unlawful detainer actions based on similarly 

defective notices for fear of the court’s likely rejection of those 

actions—are “technical” and “procedural” regardless of whether 

those defects can be corrected in the future. We reject this 

assertion. 

To begin, a three-day notice setting forth the correct 

amount of delinquent rent is a substantive element of an unlawful 

detainer action. (Borsuk v. Appellate Division of Superior Court

(2015) 242 Cal.App.4th 607, 610, 612-614, 616-617 (Borsuk); 

Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16; Olivares v. 

Pineda (2019) 40 Cal.App.5th 343, 354 (Olivares) [“landlord 

cannot recover in an unlawful detainer based on a three-day 

notice that seeks rent in excess of the amount due”]; Levitz 

Furniture Co. v. Wingtip Communications (2001) 86 Cal.App.4th 

1035, 1038, 1040 [same]; North 7th Street Associates v. Constante

(2016) 7 Cal.App.5th Supp. 1, 5 [same]; Ernst Enters. v. Sun 

Valley Gasoline (1983) 139 Cal.App.3d 355, 359 [same]; see 

§ 1161, subd. (2) [“three day[] notice” must “stat[e] the amount [of 

rent] that is due”].) As such, a landlord’s failure to prove this 

element is a failure of proof on the merits, rather than a 

jurisdictional defect or a defect in pleading that might be 

considered “procedural” or “technical.” (Borsuk, at pp. 612-613 

[service of a three-day notice is not “jurisdictional,” and decisions 

to the contrary are incorrect]; but see Delta Imps. v. Mun. Court

(1983) 146 Cal.App.3d 1033, 1037 [implying that service of threeday notice is jurisdictional because it may be remedied in a 

motion to quash]; see generally Sycamore Ridge, supra, 157 
16

Cal.App.4th at p. 1400 [termination of prior lawsuit due to lack of 

“jurisdiction” is “technical” and “procedural”]; Jaffe, supra, 18 

Cal.2d at pp. 150-151 [termination of prior lawsuit due to “defects 

in the complaint” is “technical” and “procedural”].) This 

conclusion is reinforced by the historical distinction between “the 

elements of the action” and the “procedural prerequisites to 

asserting them.” (Robbins v. Blecher (1997) 52 Cal.App.4th 886, 

895.) Although, as the landlord defendants point out, the service 

of an accurate three-day notice is “procedural” in nature, this 

observation is unhelpful because an unlawful detainer action is 

itself a statute-based procedural device for facilitating the 

summary transfer of possession of property between persons who 

may or may not have a contract between them. (E.g., People v. 

Little (1983) 143 Cal.App.3d Supp. 14, 18 [“The purpose of the 

unlawful detainer statutes is procedural”].) 

Moreover, accepting the gist of this argument—namely, 

that the three-day notice and other elements of unlawful detainer 

actions are all “procedural protections against summary 

eviction”—would always preclude a finding that an unlawful 

detainer action is resolved in a tenant’s favor “on the merits” and 

thus preclude all malicious prosecution actions against landlords. 

That is not the law. (Oviedo v. Windsor Twelve Properties, LLC

(2012) 212 Cal.App.4th 97, 111 [entertaining malicious 

prosecution action based on a prior unlawful detainer action]; 

Olivares, supra, 40 Cal.App.5th at p. 347 [same].) Nor should it 

be, as it would exempt any and all landlords from liability for 

maliciously prosecuting unlawful detainer actions.

Second, the landlord defendants contend that substantial 

evidence supports the trial court’s finding that their reason for 

voluntarily dismissing the remaining four unlawful detainer 
17

actions was “technical” and “procedural.” We reject this 

contention. As an initial matter, and as discussed above, the trial 

court’s finding rests upon an incorrect legal standard; as such, its

finding is entitled to no weight. Applying the correct legal 

standard, there is no evidence—let alone substantial evidence—

to support a finding that the dismissal was based on anything 

other than the lack of likely success on the merits. The landlord 

defendants point to their unlawful detainer lawyer’s testimony at 

trial that the voluntary dismissals were “technical” and 

“procedural.” This testimony is nothing more than an expert 

opinion on a legal issue that is inadmissible and thus cannot 

constitute substantial evidence. (Downer v. Bramet (1984) 152 

Cal.App.3d 837, 841 [“an ‘expert’” may not “testify to legal 

conclusions in the guise of expert opinion” and “[s]uch legal 

conclusions do not constitute substantial evidence”].) What is 

more, that opinion was informed by an unpublished appellate 

decision that, as we discussed above, employed the wrong legal

standard. The landlord defendants also point to the absence of a

“prevailing party” attorney fee award for the tenants in the 

bellwether trial judgment. This is doubly irrelevant because (1) 

the landlord defendants have not included the trial court’s 

attorney fees order, so we do not know the court’s reasons for not 

awarding attorney fees and, more broadly, (2) the prior court’s 

determination about whether the tenants were “prevailing 

parties” turns on a different standard (namely, whether the 

tenants obtained the “greater relief” (Civ. Code, § 1717, subd. 

(b)(1))) than the standard governing whether a voluntary 

dismissal is “technical” or “procedural” rather than “on the 

merits.” 
18

In light of our analysis, we have no occasion to reach the 

tenants’ several alternative arguments for reversing the trial 

court’s favorable termination finding—namely, that the court 

should not have resolved factual issues itself, erred in allowing 

the landlord’s unlawful detainer lawyer to testify to an 

unpublished appellate decision, did not treat as dispositive the 

prior anti-SLAPP appellate ruling finding favorable termination 

on the merits, and did not allow the tenants to present rebuttal 

evidence.

* * *

Our conclusion that the trial court erred in finding that the 

voluntary dismissals did not constitute “favorable terminations” 

on the merits is not the end of our analysis. As a general rule, we 

review a trial court’s ultimate ruling—here, judgment in favor of 

the landlord defendants—not just its reasoning; this is why we 

generally affirm a ruling as long as it is valid on any ground. 

(People v. Mickey (1991) 54 Cal.3d 612, 655; People v. Zamudio

(2008) 43 Cal.4th 327, 351, fn. 11.) And even where, as here, a 

trial court has the absolute discretion to refuse to enter judgment 

(Erika K., supra, 161 Cal.App.4th at p. 1271), and has declined to 

enter judgment on an alternative ground, we may still affirm if 

remanding the case would serve no purpose because the “outcome 

of [such] a remand is a foregone conclusion” due to the plaintiff’s 

inability to “establish” an entitlement to relief. (Choate v. Celite 

Corp. (2013) 215 Cal.App.4th 1460, 1468; Ena North Beach, Inc. 

v. 524 Union Street (2019) 43 Cal.App.5th 195, 215; People ex rel. 

Dept. of Transportation v. McNamara (2013) 218 Cal.App.4th 

1200, 1209; Stearman v. Centex Homes (2000) 78 Cal.App.4th 

611, 625; see generally §§ 43 [appellate court has power to 

“affirm, reverse, or modify any judgment . . . and . . . direct the 
19

proper judgment . . . to be entered”], 906 [same].) Because, as 

discussed below, the trial court is compelled as a matter of law to 

find that the landlord’s unlawful detainer actions were supported 

by probable cause, the outcome of any remand is a foregone 

conclusion and we must affirm the judgment on this alternative 

ground.

C. Probable cause

To establish the second element of a malicious prosecution 

claim that the prior lawsuit was “brought without probable 

cause,” the malicious prosecution plaintiff must show that no 

“reasonable attorney would have thought the [lawsuit to be 

legally and factually] tenable.” (Sheldon Appel, supra, 47 Cal.3d 

at p. 886; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 

811, 817 (Wilson), superseded on other grounds by § 425.16, subd. 

(b)(3).) “A prior action was not initiated without probable cause 

merely because it was ultimately found to lack merit; it was 

initiated without probable cause only if ‘all reasonable lawyers’ 

would ‘agree’ that the suit, at the time of filing, was ‘totally and 

completely without merit’ [based on] . . . ‘the facts known to the 

defendant’ ‘at the time the suit was filed.’” (Gruber, supra, 48 

Cal.App.5th at p. 538, quoting Jarrow Formulas, Inc. v. 

LaMarche (2003) 31 Cal.4th 728, 743, fn. 13, and Sheldon Appel, 

at p. 878.) Although whether the facts known to the defendant 

constitute probable cause is a question of law for the court 

(Wilson, at p. 825), what those facts were is a factual question 

that is for the court only if they are undisputed (Sheldon Appel, 

at pp. 875, 877, 881).

In Hart, supra, 12 Cal.App.5th 218, we held that a trial 

court’s denial of a section 631.8 motion in a prior lawsuit, by 

virtue of the interim adverse judgment rule, “conclusive[ly]” 
20

establishes that the prior plaintiff had probable cause to bring 

that lawsuit, and thus forecloses malicious prosecution liability 

against the prior plaintiff. (Id. at pp. 221, 227; see generally 

Parrish, supra, 3 Cal.5th at pp. 776-777 [reaffirming validity of 

“interim adverse judgment rule”].)9 As noted above, Hart grew 

out of this very case, but involved only the two malicious 

prosecution plaintiffs—Hart and Rodriguez—who were the 

unlawful detainer defendants in the bellwether trial in which the 

section 631.8 motion was denied. We now confront the question 

left unaddressed in Hart: Does the trial court’s finding of 

probable cause as to Hart and Rodriguez apply with equal force 

to the remaining three unlawful detainer defendants? 

The answer is yes, and that answer is compelled by the 

doctrine of collateral estoppel.10 Under that doctrine, a ruling on 

9 We categorically reject the tenants’ suggestion that Hart

was wrongly decided; if anything, this suggestion is further proof 

of these parties’ seeming intent to relitigate the same issues ad 

infinitum.

10 Although the trial court’s ruling finding that the landlord 

had probable cause to bring unlawful detainer actions against 

Hart and Rodriguez occurred in the course of the same malicious 

prosecution proceeding before us now (ostensibly making it 

appropriate to apply the law of the case doctrine because this is 

technically the same malicious prosecution case), we elect to rely 

instead on the doctrine of collateral estoppel. We do so because a 

malicious prosecution claim is by definition premised on what 

happened in earlier litigation and here, that earlier litigation 

consists of six separately filed unlawful detainer actions against 

six different tenants. In such an instance, each prior action has a 

different party and potentially different issues, and the more 

probing inquiry demanded by the collateral estoppel doctrine 

specifically requires us to account for those potential differences. 
21

an issue in a prior proceeding can be deemed to be binding in the 

current proceeding if (1) “the issue sought to be precluded from 

relitigation [is] identical to that decided in [the] former 

proceeding,” (2) the issue was “actually litigated in the former 

proceeding,” (3) the issue was “necessarily decided in the former 

proceeding,” (4) “the decision in the former proceeding [is] final 

and on the merits,” and (5) “the party against whom preclusion is 

sought [is] the same as, or in privity with, the party to the former 

proceeding.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 

(Lucido).) Even if these five prerequisites are met, the decision 

whether a prior ruling should be given preclusive effect is 

entrusted to the trial court’s discretion, and turns on whether 

doing so “would be fair to the parties and constitutes sound 

judicial policy” in light of the “public policies underlying collateral 

estoppel—[namely,] preservation of the integrity of the judicial 

system, promotion of judicial economy, and protection of litigants 

from harassment by vexatious litigation.” (Id. at p. 343; Mooney 

v. Caspari (2006) 138 Cal.App.4th 704, 717-718.) 

Under the doctrine of collateral estoppel, the trial court’s 

earlier finding that the landlord had probable cause to bring its 

unlawful detainer actions against Hart and Rodriguez applies 

with equal force to the other tenants. 

All five prerequisites of the doctrine apply. As to the first

prerequisite, issues are “identical” if “‘identical factual 

allegations’” are “at stake.” (Lucido, supra, 51 Cal.3d at p. 342.) 

Here, they are: But for the tenants’ names and the amount of 

monthly rent, the landlord filed identical complaints against all 

six tenants living in the same house and sought the same 10 
22

months’ worth of delinquent rent;11 the tenants filed identical 

answers; and the parties have otherwise stipulated or conceded 

that the facts were identical.12 In declining to grant judgment 

based on a finding that the landlord defendants had probable 

cause, the trial court focused—not on the underlying facts—but 

rather on whether the two trials (that is, the bellwether trial and 

the subsequent trial) would be identical. This was the wrong 

focus, not only under the doctrine of collateral estoppel, but also 

under the law of malicious prosecution, which turns on whether 

the prior lawsuit was brought with probable cause and not on 

whether the resulting trials would play out the same way.13 As 

to the second, third and fourth prerequisites, there is no question 

that the issue of probable cause was actually and necessarily 

litigated “on the merits” by Hart and Rodriguez before the trial 

11 For the first time at oral argument, the tenants’ attorney 

argued that the facts regarding each tenant were different. We 

reject this argument as wholly inconsistent with the tenants’ 

repeated representations to the trial court in this case that “the 

facts are all the same” for each tenant, as well as the whole 

reason for having a bellwether unlawful detainer trial to 

determine what to do with the remaining tenants. 

12 These items are properly before this court. (Evid. Code, 

§§ 452, subd. (c), 459.) Contrary to what the tenants assert, 

whether these items were also formally admitted into evidence at 

the malicious prosecution trial is of no consequence.

13 What is more, this erroneous focus is unsupported by the 

evidence at trial: The landlord’s attorney testified that had the 

remaining four unlawful detainer actions gone to trial, the 

landlord would have put on the “[e]xact same” evidence as the 

landlord did in the bellwether trial. 
23

court entered judgment on the pleadings, and that the case was 

litigated to final judgment as to them.14 As to the fifth 

prerequisite, the parties are not the same because Vaughn, 

Hernandez and Johnson were not part of the Hart and Rodriguez 

judgment on the pleadings, but they are in privity with one 

another. Privity is a flexible concept that asks whether the 

“‘relationship between the party to be estopped and the 

unsuccessful party in the prior litigation . . . is “sufficiently close” 

so as to justify application of the doctrine of collateral estoppel.’ 

[Citations.]” (People v. Sims (1982) 32 Cal.3d 468, 486-487, 

superseded by statute on other grounds as stated in In re 

Kocontes (2016) 244 Cal.App.4th 1229, 1246.) Because all six 

unlawful detainer actions involved identical facts, because all six 

tenants joined together in a single malicious prosecution action 

against the landlord defendants, and because Hart and Rodriguez 

had the same incentive to litigate this issue as the remaining 

tenants, the relationship between all of the tenants is 

“sufficiently close.” 

Precluding re-litigation of the issue of probable cause is 

also mandated here as a matter of discretion. That is because 

applying the probable cause-based judgment as to Hart and 

Rodriguez to the other tenants is “fair,” promotes judicial 

economy by avoiding re-litigation of a thoroughly litigated issue, 

and protects the parties—and, frankly, the courts—from 

seemingly endless attempts to litigate, re-litigate, and re-re14 As a result, the tenants’ argument—raised for the first time 

at oral argument—that collateral estoppel cannot apply to a 

“procedural” ruling (that is, one not on the merits) is not only 

waived, but is also irrelevant.
24

litigate the same issues over and over again. Conversely, not 

applying collateral estoppel here would disserve all of these goals.

The tenants offer four arguments to the contrary.

First, the tenants argue that the landlord defendants 

cannot rely on the doctrine of collateral estoppel because they 

raised that issue in their summary judgment motion, lost on that 

issue, and did not file a protective cross-appeal. Although a 

litigant’s failure to file a cross-appeal precludes that litigant from 

seeking relief beyond that at issue in the main appeal (e.g., 

Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 831-

832), the landlord defendants are not asking us to overturn the 

trial court’s summary judgment ruling. Instead, we are being 

asked to decide whether the trial court correctly granted the 

landlord defendants’ section 631.8 motion, which in turn presents 

the question whether the court’s prior finding of probable cause 

to prosecute the unlawful detainer actions against Hart and 

Rodriguez applies to the unlawful detainer actions against the 

other tenants because the issues in all of those actions are 

identical. This question is properly before us as part of the 

tenants’ appeal; whether it was also part of the landlord 

defendants’ summary judgment motion is therefore irrelevant.

Second, the tenants suggest that the issues in all six 

unlawful detainer actions are not identical because, in a June 

2012 order made prior to the bellwether trial, a judge ruled that 

there were “insufficient common questions of law and fact at this

time among the six” unlawful detainer actions to consolidate 

them. (Italics added.) This suggestion is not well taken. A 

month after this ruling, the trial court consolidated Hart’s and 

Rodriguez’s cases in order to conduct the bellwether trial, and the 

parties now either stipulate or concede that the issues in all six 
25

unlawful detainer actions are identical. We accordingly reject the 

tenants’ suggestion that the explicitly provisional view of the trial 

court regarding the similarity of issues made early on in the 

unlawful detainer proceedings thereafter precludes the trial 

court, this court, or the parties themselves from coming to a 

different view. 

Third, the tenants assert that the interim adverse 

judgment rule cannot be applied to them because the landlord 

defendants did not take them to trial in the unlawful detainer 

actions, let alone obtain a judgment. We need not determine 

whether this assertion is true because it is ultimately beside the 

point. We are applying the doctrine of collateral estoppel to the 

trial court’s prior finding in Hart that the landlord defendants 

had probable cause to bring the unlawful detainer actions against 

Hart and Rodriguez. The context in which that finding was 

made—that is, as the basis for applying the interim adverse 

judgment rule to Hart and Rodriguez—does not alter that finding 

or preclude its application to the question of whether the landlord 

defendants had probable cause to bring the unlawful detainer 

actions against the other tenants at issue here.

Lastly, the tenants argue that, if the doctrine of collateral 

estoppel is relevant, it should apply—not to the trial court’s 

judgment on the pleadings as to Hart and Rodriguez—but rather 

to the trial court’s earlier findings, when denying the landlord 

defendants’ anti-SLAPP motions (§ 425.16 et seq.), that the 

tenants had made a prima facie showing of favorable termination 

and lack of probable cause. Although the trial court made such a 

finding and we affirmed it on appeal (Vaughn v. Darwish (May 

27, 2015, B253694) 2015 Cal.App. Unpub. LEXIS 3665, at *12-

*18 [nonpub. opn.]), our Legislature has declared that such 
26

determinations made in the course of anti-SLAPP litigation have 

no collateral estoppel effect and, indeed, are “not [even] 

admissible in evidence at any later stage of the case, or in any 

subsequent action.” (§ 425.16, subd. (b)(3).) 

The tenants both ignore this statutory bar, and 

simultaneously offer four arguments to circumvent it. None of 

them has merit. First, they cite language from cases reciting that 

“‘law of the case may apply’” to “denial of an anti-SLAPP motion” 

(Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1153; Hotels 

Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 

336, 356), but each of these cases draws this language from a case 

that pre-dates section 425.16, subdivision (b)(3). This attempt to 

mislead fails. Second, the tenants argue that this statute cannot 

override the doctrine of collateral estoppel or, for that matter, law 

of the case. Again, they are wrong. (California Logistics, Inc. v. 

State of California (2008) 161 Cal.App.4th 242, 250 [“the 

Legislature may limit application of the doctrine [of collateral 

estoppel] for public policy purposes”]; Renee J. v. Superior Court

(2002) 96 Cal.App.4th 1450, 1455 [statute may “provide[] an 

exception to the doctrine of law of the case”].) Third, the tenants 

suggest that section 425.16, subdivision (b)(3)’s bar only applies 

when the prior anti-SLAPP ruling is used “to establish liability,” 

and thus does not apply where, as here, a party (here, the 

tenants) is using the prior anti-SLAPP ruling “defensively.” This 

suggestion ignores the plain text of the statute (which declares 

any prior anti-SLAPP ruling “[in]admissible in evidence” 

regardless of the purpose for which it is offered) (§ 425.16, subd. 

(b)(3)), and ignores that the tenants’ success in beating back the

adverse section 631.8 ruling at issue here ultimately assists them

in establishing the landlord defendants’ liability for malicious 
27

prosecution. Lastly, the tenants assert that section 425.16, 

subdivision (b)(3)’s bar to the application of collateral estoppel 

can, at most, apply to trial courts and not appellate courts. If 

accepted, this argument would mean that collateral estoppel 

would not initially apply to a trial court’s anti-SLAPP findings 

but would apply once those findings are appealed, which is likely 

to be often given that our Legislature specifically created a right 

to immediately appeal such rulings (§ 425.16, subd. (i)). We 

sincerely doubt the Legislature enacted a bar to collateral 

estoppel that could be so easily—and regularly—evaded. 

* * *

In light of our analysis, we have no occasion to reach the 

landlord defendants’ alternative argument for reversal—namely, 

that one of the tenants’ civil lawsuits awarded relief duplicative 

of the relief sought in the malicious prosecution action.

II. The Landlord’s Appeal

The landlord argues that the trial court erred in denying its 

post-judgment motion for attorney fees under the three written 

leases it actually produced—that is, the leases for Vaughn, 

Hernandez and Hart.15

California follows the so-called “American rule” when it 

comes to attorney fees: Parties in civil litigation bear their own 

unless a statute or contract provides otherwise. (§ 1021; Eden 

Township Healthcare Dist. v. Eden Medical Center (2013) 220 

Cal.App.4th 418, 425.) If the parties to a contract agree to shift 

liability for attorney fees, our task is to give effect to their 

contract. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 

15 To the extent it matters, the landlord does not argue that 

the trial court erred in not awarding fees as to the three tenants 

for whom it produced no written lease.
28

Cal.App.4th 547, 577.) Although we generally review a trial 

court’s denial of contract-based attorney fees for an abuse of 

discretion (Walker v. Ticor Title Co. of California (2012) 204 

Cal.App.4th 363, 370), we independently review its interpretation 

of that contract where, as here, there is no extrinsic evidence to 

consider (Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 

Cal.App.4th 263, 273, overruled on other grounds as stated in 

Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 

3 Cal.5th 744, 756). 

The trial court did not abuse its discretion in denying the 

landlord’s motion for attorney fees because the attorney fees 

clauses in the three leases—all of which are identical—do not 

provide for the award of attorney fees when the landlord prevails 

in a malicious prosecution action brought in response to an 

earlier unlawful detainer action. Those clauses provide that a 

“prevailing party” is entitled to his “costs,” including “reasonable 

attorney’s fees,” only “in an action brought” (1) “for the recovery 

of rent or other moneys due or to become due under this lease,” 

(2) “by reason of a breach of any covenant herein contained,” (3) 

“for the recovery of the possession of said premises,” (4) “to 

compel the performance of anything agreed to be done herein,” (5) 

“to recover for damages to said property,” or (6) “to enjoin any act 

contrary to the provisions hereof.” The tenants’ malicious 

prosecution action is not an “action brought” to achieve any of 

these six categories of relief; as such, the attorney fees clause in 

these leases is, by its own terms, inapplicable.

Seeking to avoid the narrow language of these clauses, the 

landlord (1) cites several cases where attorney fees were 

awarded; (2) argues more generally that attorney fees clauses can 

reach tort claims as well as contract claims, can reach 
29

intertwined claims, and can reach implied covenants; and (3) 

asserts that the tenants are judicially estopped from contesting 

the award of attorney fees because two of the tenants (Vaughn 

and Hernandez) were awarded fees under those clauses in the 

very first round of unlawful detainer litigation. These arguments 

lack merit. The cases the landlord cites all involve far broader 

attorney fees clauses. (E.g., Chinn v. KMR Property Management

(2008) 166 Cal.App.4th 175, 183, overruled on other grounds as 

stated in DeSaulles v. Community Hospital of Monterey 

Peninsula (2016) 62 Cal.4th 1140; Lockton v. O’Rourke (2010) 184 

Cal.App.4th 1051, 1075-1076; Allstate Ins. Co. v. Loo (1996) 46 

Cal.App.4th 1794, 1799.) It does not matter whether other

attorney fees clauses can reach tort claims, intertwined claims, or 

implied covenants because the clauses in this case do not. What 

is more, the fact that the unlawful detainer actions were the 

singularity from which this universe of litigation has exploded 

does not render all subsequent litigation subject to the attorney 

fees clauses in the leases when that litigation is outside the plain 

language of those clauses. And the prior award of attorney fees 

in the first round of unlawful detainer litigation has no estoppel 

effect: The award in that first round fell squarely within the 

clause’s scope because an unlawful detainer case is an action 

brought to recover rent or possession of the premises, while the 

malicious prosecution action, as noted above, falls outside the 

clause’s scope.

* * *

In light of our analysis, we have no occasion to reach the 

tenants’ alternative arguments in favor of affirming the trial 

court’s attorney fees ruling.
30

DISPOSITION

The judgment for the landlord defendants and postjudgment order denying the landlord’s attorney fees are both 

affirmed. The parties are to bear their own costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ