Filed 4/15/13 Ruby‘s Laguna Assocs. v. Ruby‘s Diner CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RUBY‘S LAGUNA ASSOCIATES, LTD., 

 Plaintiff and Appellant,

v.

RUBY‘S DINER INC.,

 Defendant and Respondent.

 G046485, G046786

 (Super. Ct. No. 30-2009-00124231)

 O P I N I O N

Appeal from a judgment and an order of the Superior Court of Orange 

County, Gregory Munoz, Judge. Reversed and remanded.

Morrow & White, Christopher A. White, Frederick M. Heiser, William J. 

Penisten and Michael E. Israel for Plaintiff and Appellant.

Kohut & Kohut and Laura Kohut Hoopis for Defendant and Respondent.

* * *
2

In its demurrer, defendant and respondent Ruby‘s Diner, Inc. (Ruby‘s 

Diner) claimed Doug DeCinces (DeCinces) was not the proper plaintiff with respect to 

the cause of action for breach of a right of first refusal, inasmuch as he was not a party to 

the agreement that contained the right of first refusal and that identified Ruby‘s Laguna 

Associates, Ltd. (Laguna Associates) as the holder of the right. The court sustained the 

demurrer. So, the plaintiffs amended the complaint to state that Laguna Associates was 

the plaintiff pursuing that cause of action. Ruby‘s Diner then filed a motion for summary 

judgment, contending that Laguna Associates was not the proper plaintiff, DeCinces was, 

because he was the holder of the right of first refusal. The court granted summary 

judgment, leaving no plaintiff to pursue the second cause of action.

In reviewing the summary judgment, we first conclude that Laguna 

Associates succeeded in raising a triable issue of material fact as to whether it was indeed 

the proper plaintiff. This notwithstanding, we also conclude that no trial will be 

necessary on the identity of the proper plaintiff, on remand. We apply the doctrine of 

judicial estoppel to bar Ruby‘s Diner from claiming that Laguna Associates is not the 

proper plaintiff with respect to the second cause of action. We reverse the summary 

judgment in favor of Ruby‘s Diner, together with the award of attorney fees in its favor, 

and remand.

I

FACTS

In May 1989, Ruby‘s Diner and Laguna Associates entered into a limited 

partnership agreement (Ruby‘s Diner Laguna Beach Partnership Agreement) pursuant to 

which they formed Ruby‘s Diner Laguna Beach, a California limited partnership (Ruby‘s 

Diner Laguna Beach Partnership). Ruby‘s Diner was the general partner and Laguna 

Associates was the limited partner. The partnership was formed for the purpose of 

operating a diner in Laguna Beach. Ruby‘s Diner made an initial capital contribution of 

$100,000 and Laguna Associates made an initial capital contribution of $700,000. 
3

Section 10.14 of the Ruby‘s Diner Laguna Beach Partnership Agreement stated in 

pertinent part: ―The Limited Partner retains the first right of refusal to participate in 

future Orange County and San Diego Ruby‘s projects where Ruby‘s Diner, Inc. chooses 

to finance the project via a limited partnership.‖

DeCinces was the general partner of Laguna Associates. He also held an 

ownership interest in Laguna Associates.1

In June 2009, after a falling out, DeCinces, Laguna Associates, and a 

number of other entities, commenced litigation against Ruby‘s Diner and a variety of 

other defendants. In the second cause of action of the first amended complaint, 

DeCinces, in his individual capacity, alleged that certain defendants had breached the 

right of first refusal by failing to give him an opportunity to participate in various 

additional projects.

Ruby‘s Diner and other defendants filed a demurrer with respect to a 

number of causes of action, including the second cause of action. They asserted that 

DeCinces had failed to state facts sufficient to constitute a cause of action because he was 

not a party to the Ruby‘s Diner Laguna Beach Partnership Agreement, which contained 

the right of first refusal. In the opposition to the demurrer, DeCinces explained that he 

 

1 Laguna Associates represents that it is owned 99 percent by DeCinces and 1 

percent by his wife, but Ruby‘s Diner cries, ―Foul!‖ It says there is no evidence properly 

before this court disclosing the ownership of Laguna Associates. We disagree. In an 

excerpt of DeCinces‘s January 21, 2010 deposition testimony, provided by Ruby‘s Diner 

in support of its second summary judgment motion, DeCinces confirmed that he and his 

wife owned 100 percent of Laguna Associates. As for the percentages of ownership, in a 

declaration of DeCinces that Ruby‘s Diner provided in support of its first motion for 

summary judgment, DeCinces stated he owned 99 percent and his wife owned 1 percent. 

Ruby‘s Diner claims we may not consider this declaration because it was not before the 

trial court when ruling on the second summary judgment motion. Whether or not we 

agree with that assertion is inconsequential. The ownership of Laguna Associates is 

immaterial to the issue of whether a triable issue of fact was raised in this matter.
4

held the right of first refusal as general partner of Laguna Associates. The court 

sustained the demurrer to the second cause of action, in August 2009.

Consequently, DeCinces and others filed a second amended complaint. 

The second cause of action was recast to name Laguna Associates as the plaintiff, instead 

of DeCinces. The plaintiffs alleged that the contract in question granted Laguna 

Associates a right of first refusal. They abandoned the argument that, because DeCinces 

was the general partner of Laguna Associates, the right of first refusal could be exercised 

by him individually. The fourth amended complaint was to the same effect. 

On August 31, 2010, plaintiffs and defendants to the action, including 

DeCinces individually, Laguna Associates, and Ruby‘s Diner, settled most of the 

litigation. Pursuant to the settlement agreement, the plaintiffs released all claims against 

the defendants ―except for any and all claims associated with [the] Right of First Refusal 

discussed in Section 10.14 of the . . . Ruby‘s Diner Laguna Beach [Partnership 

Agreement], including but not limited to, the Second Cause of Action for Breach of 

Contract — Right of First Refusal contained in the Fourth Amended Complaint, which 

will remain pending . . . .‖ Using like language, they agreed to dismiss with prejudice 

―each claim asserted in the Action as to all Defendants, except for any and all claims 

associated with [the] Right of First Refusal discussed in Section 10.14 of the . . . Ruby‘s 

Diner Laguna Beach [Partnership Agreement], including but not limited to, the Second 

Cause of Action for Breach of Contract – Right of First Refusal contained in the Fourth 

Amended Complaint, which will remain pending.‖ 

On September 10, 2010, per the request of the plaintiffs, all claims of all 

plaintiffs were dismissed with prejudice, with the exception of the second cause of action 

contained in the fourth amended complaint.

In June 2011, Ruby‘s Diner filed its second motion for summary judgment, 

wherein it alleged that Laguna Associates had no standing to maintain the second cause 

of action, because the only person who could exercise the right of first refusal was 
5

DeCinces in his individual capacity. The court found that Ruby‘s Diner had met its 

burden to show that the right of first refusal had been assigned to DeCinces individually 

and that Laguna Associates had failed to raise a triable issue of material fact to show 

otherwise. It entered summary judgment in favor of Ruby‘s Diner, including an award of 

attorney fees in the amount of $645,459.05. On appeal, Laguna Associates challenges 

both the summary judgment and the award of attorney fees.

II

DISCUSSION

A. Summary Judgment Review:

―Under summary judgment law, any party to an action, whether plaintiff or 

defendant,  ̳may move‘ the court  ̳for summary judgment‘ in his [or her] favor on a cause 

of action . . . or defense (Code Civ. Proc., § 437c, subd. (a))—a plaintiff  ̳contend[ing]. . . 

that there is no defense to the action,‘ a defendant  ̳contend[ing] that the action has no 

merit‘ (ibid.). The court must  ̳grant[]‘ the  ̳motion‘  ̳if all the papers submitted show‘ 

that  ̳there is no triable issue as to any material fact‘ (id., § 437c, subd. (c))—that is, there 

is no issue requiring a trial as to any fact that is necessary under the pleadings and, 

ultimately, the law [citations]—and that the  ̳moving party is entitled to a judgment as a 

matter of law‘ (Code Civ. Proc., § 437c, subd. (c)).‖ (Aguilar v. Atlantic Richfield Co. 

(2001) 25 Cal.4th 826, 843.)

―[I]n moving for summary judgment, a  ̳defendant . . . has met‘ his [or her] 

 ̳burden of showing that a cause of action has no merit if‘ he [or she]  ̳has shown that one 

or more elements of the cause of action . . . cannot be established, or that there is a 

complete defense to that cause of action. Once the defendant . . . has met that burden, the 

burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts 
6

exists as to that cause of action or a defense thereto. . . .‘ (Code Civ. Proc., § 437c, subd. 

(o)(2).)‖2 (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)

On review of a summary judgment, we ―examine the record de novo and 

independently determine whether [the] decision is correct. [Citation.]‖ (Colarossi v. 

Coty US Inc. (2002) 97 Cal.App.4th 1142, 1149.) 

B. Motion:

In its motion, Ruby‘s Diner asserted that Laguna Associates had assigned 

its interest in the right of first refusal to DeCinces personally, so that DeCinces was the 

only one who could exercise the right of first refusal after all. It argued that the second 

cause of action failed because: (1) DeCinces was no longer named as the plaintiff in the 

second cause of action; (2) DeCinces individually had settled all his claims; (3) the 

doctrine of judicial estoppel barred DeCinces from claiming an interest in the right of 

first refusal because, after the sustaining of the demurrer, he maintained that the right of 

first refusal was held by Laguna Associates; and (4) DeCinces had unreasonably delayed 

in seeking to be reinstated as plaintiff in the second cause of action.

In its separate statement of undisputed material facts in support of its 

motion, Ruby‘s Diner stated that Laguna Associates had assigned the right of first refusal 

to DeCinces individually, pursuant to an assignment agreement dated June 30, 2005. It 

also stated that, in his May 4, 2011 deposition, DeCinces had testified that the ownership 

of the right of first refusal as reflected in the assignment agreement was ―in effect.‖ 

Ruby‘s Diner also stated that DeCinces had testified in his January 21, 2010 and 

February 1, 2010 depositions that he individually owned the right of first refusal. The 

motion was supported by a copy of the assignment agreement and excerpts of the January 

21, 2010, February 1, 2010 and May 4, 2011 deposition transcripts.

 

2 See now Code of Civil Procedure section 437c, subdivision (p)(2).
7

The June 30, 2005 assignment agreement appeared to have been signed by 

DeCinces as general partner of Laguna Associates (the assignor) and by DeCinces in his 

individual capacity (the assignee). The document recited that Laguna Associates 

assigned its interest in the right of first refusal to DeCinces and that DeCinces accepted 

the assignment. 

C. Opposition to Motion:

In opposition to the motion, Laguna Associates asserted that: (1) in 2005, it 

and DeCinces began negotiating a buy-out transaction with Ruby‘s Diner; (2) as part of 

the proposed buy-out, Ruby‘s Diner requested that Laguna Associates assign the right of 

first refusal to DeCinces, so that the right of first refusal would be included in the buy-out 

transaction; (3) DeCinces hired Attorney Thomas Brown, in 2005, to draft an assignment 

agreement and a buy-out agreement; (4) neither DeCinces nor Laguna Associates ever 

intended the assignment agreement to be effective unless the parties entered into the 

proposed buy-out agreement; (5) Attorney Brown delivered executed documents to 

Attorney Allen Duboff, counsel for Ruby‘s Diner; (6) in 2007, the buy-out deal fell 

through; (7) Attorney Brown then requested that Attorney Duboff return the buy-out 

agreement and the assignment agreement; and (8) Ruby‘s Diner thereafter offered at least 

one project to Laguna Associates, pursuant to the right of first refusal.

D. Evidence:

(1) Introduction—

Ruby‘s Diner says the trial court properly granted summary judgment 

because there is no admissible evidence in what it calls the ―[m]otion record‖ to raise a 

triable issue of material fact as to whether Laguna Associates currently holds the right of 

first refusal. The evidence in the ―[m]otion record,‖ it argues, unequivocally shows the 

right of first refusal is held by DeCinces, not Laguna Associates. 
8

Ruby‘s Diner claims that we may not consider much of the record in the 

appellant‘s appendix because it contains copies of many court filings unrelated to the 

second summary judgment motion. It says we cannot look at any portion of the record 

that is not directly related to the second summary judgment motion and the ruling 

thereon. Ruby‘s Diner cites DiCola v. White Brothers Performance Products, Inc. (2008) 

158 Cal.App.4th 666 and Havstad v. Fidelity National Title Ins. Co. (1997) 58 

Cal.App.4th 654 in support of its position. 

We do not construe those cases as narrowly as Ruby‘s Diner does. True, in 

reviewing a summary judgment, the appellate court will disregard new allegations made 

for the first time on appeal, and new theories not presented to the trial court cannot create 

a triable issue of fact on appeal. (Havstad v. Fidelity National Title Ins. Co., supra, 58 

Cal.App.4th at p. 661.) This is not the same as saying that we may not consider a piece 

of evidence that was presented to the trial court but may not have been cited in the 

moving papers on summary judgment. In any event, it matters not. The evidence we 

consider was contained in the papers directly related to the second summary judgment 

motion.

Ruby‘s Diner also asserts a myriad of other reasons why we should not 

consider particular items of evidence to which Laguna Associates draws attention in its 

briefing. We need not go through each item of evidence, and corresponding challenge, 

one by one. Suffice it to say that, with the limited exceptions specifically noted below, 

we do not consider any of the evidence Ruby‘s Diner challenges on appeal. We note 

below certain evidence as to which the trial court sustained or overruled the objections of 

Ruby‘s Diner. Where the court sustained the objections, we will disregard the evidence, 

without taking the time to address whether or not the court erred in sustaining the 

objections. Where the court overruled the objections, we note Ruby‘s Diner has filed no 

appeal of its own to challenge those rulings.
9

(2) DeCinces’s depositions—

In their papers in support of or in opposition to summary judgment, each 

party cited portions of the transcripts of various depositions of DeCinces. There are ways 

in which his testimony seems contradictory and ways in which it seems perfectly 

consistent. It is consistent throughout as expressing the thoughts of a layman on the 

effect of legal documents. 

At his deposition on January 21, 2010, DeCinces was asked whether, in his 

view, the right of first refusal was owned by an entity or by himself individually. 

DeCinces responded: ―My understanding is that the general partner . . . owns the right of 

first refusal . . . . So the answer is that yes, I believe I am the owner.‖ The lawyer sought 

clarification, asking: ―You personally as opposed to through some entity?‖ DeCinces 

replied: ―Yes. Personally or in my trust. It‘s either myself or my trust.‖ The lawyer 

then asked DeCinces whether it was his belief that Laguna Associates did not hold the 

right of first refusal. DeCinces stated that he was confused by the question and further 

said that ―the partnership [agreement] clearly expresses that the rights of first refusal are 

held by the general partner. I don‘t know how explicit more I can go.‖ [Sic.]

DeCinces was asked whether Laguna Associates had ever exercised the 

right of first refusal. In reply, he said: ―My understanding was that it was presented to 

me, asking for investors in the new location. It was my practice to go to my initial 

investors . . . .‖ He explained that he surveyed his investors to see which ones were 

interested in participating, and to what extent.

The lawyer asked DeCinces whether he and his wife owned 100 percent of 

Laguna Associates and DeCinces confirmed that to be the case. The lawyer again asked 

DeCinces whether Laguna Associates ever exercised the right of first refusal. DeCinces 

replied: ―My understanding was that was never presented to the Laguna Associates. It 

was always presented to me personally. . . . And when it was presented to me personally, 

I would do the work to find out whether I wanted to be involved in it or not. So the 
10

answer to . . . was it ever presented [to] a legal . . . Laguna Associates or whatever, no. It 

was never presented in written form that way by Ruby‘s. It was always directed directly 

to me.‖

In his February 1, 2010 deposition, DeCinces said: ―My understanding is 

that I personally hold the rights to the right of first refusal.‖

In his May 4, 2011 deposition, DeCinces was questioned repeatedly about 

the legal effect of the assignment agreement. Counsel for DeCinces repeatedly objected 

that the questions called for expert opinion, legal conclusions and speculation. 

Nonetheless, DeCinces testified as to his understanding of the assignment.

When asked what his understanding of the assignment was, DeCinces 

replied: ―My understanding is what is written here is my belief.‖ When asked whether 

Laguna Associates had assigned the right of first refusal to him, DeCinces said: ―I 

understand that this is what exists today; that‘s what I understand.‖ Again, when pressed 

whether it was his understanding that the assignment remained in effect, DeCinces 

responded: ―I believe that that‘s what exists today.‖

Some of the foregoing testimony makes no sense from a legal perspective. 

It just reflects the viewpoint of a layman, who has an ownership interest in a company, 

and who is the general partner of that company and the one who fields communications 

put to that company—here Laguna Associates.

(3) Declarations—

(a) DeCinces’s declaration

To explain the ambiguities and inconsistencies in the testimony and 

otherwise provide support for its opposition, Laguna Associates presented, inter alia, an 

August 23, 2011 declaration of DeCinces and an August 24, 2011 declaration of Attorney 

Brown. DeCinces declared that Laguna Associates had never assigned the right of first 

refusal to any person or entity. He further declared that in 2005, he, both individually 

and as general partner of Laguna Associates, began negotiating a transaction with Ruby‘s 
11

Diner. He stated that as part of the transaction, Ruby‘s Diner requested that Laguna 

Associates assign the right of first refusal to himself individually. DeCinces said he hired 

Attorney Brown to draft the necessary paperwork, which included a buy-out agreement 

and the assignment agreement in question. DeCinces represented that he, both 

individually and as general partner of Laguna Associates, ―never intended for the 

assignment agreement to become effective unless and until the entire sales transaction 

with RUBY‘S DINER, INC. was fully executed.‖ The court sustained an objection to the 

quoted language. 

DeCinces also said that because the transaction fell through, ―the 

assignment agreement — which was part of the sales transaction — was never 

effectuated.‖ The court overruled an objection to the quoted language. With regard to 

his prior deposition testimony to the effect that he personally owned the right of first 

refusal, DeCinces said he was confused by the questions posed and did not understand 

the legal term ―assignment.‖

(b) Attorney Brown’s declaration

Attorney Brown declared that he had represented both DeCinces and 

Laguna Associates in connection with the negotiation of a buy-out agreement with 

Ruby‘s Diner. He said that the overall buy-out transaction included an assignment of the 

right of first refusal by Laguna Associates to DeCinces individually. Attorney Brown 

further declared that he and Attorney Duboff had ―discussed that RUBY‘S LAGUNA 

ASSOCIATES, LTD assign the Right of First Refusal . . . to Doug DeCinces as an 

individual, for the sole purpose of facilitating the proposed sales transaction.‖ In 

addition, Attorney Brown stated that, in August 2007, he forwarded the buy-out 

agreement, together with the assignment agreement, to Attorney Duboff, but that shortly 

thereafter, the deal fell through. Attorney Brown further declared: ―With the termination 

of the sales transaction, neither the buy-out agreement nor the assignment agreement was 

effective because Mr. DeCinces, in his individual capacity and capacity as general partner 
12

for [Laguna Associates] did not intend that they be effective.‖ The court sustained an 

objection to this quoted sentence about the parties‘ intent. 

In his declaration, Attorney Brown also stated: ―By e-mail dated August 

24, 2007, . . . I specifically advised Mr. Duboff:  ̳Under the circumstances the Purchase 

Agreement previously delivered to you is no longer in effect and cannot be accepted by 

Ruby‘s.‘ I requested that the agreements be returned to me — that is, the buy-out 

agreement and the assignment agreement. Attached as Exhibit  ̳E‘ to Plaintiffs‘ Exhibit 

Binder is a true and correct copy of the August 24, 2007 e-mail that I sent to RUBY‘S 

DINER, INC.‘s attorney.‖ The court sustained an objection to the last sentence of this 

quote, regarding the attached exhibit, but overruled an objection to the preceding quoted 

language regarding the content of the e-mail and the request for the return of the 

documents.

(4) Other evidence—

In addition to the foregoing evidence, Laguna Associates offered a portion 

of a transcript of the November 24, 2009 deposition of Doug Cavanaugh. In that 

deposition, Cavanaugh, who was the president of Ruby‘s Diner, was asked whether he 

had ever made an offer, under the right of first refusal, ―to Ruby‘s Laguna, Limited or 

Doug DeCinces as the general partner on behalf of that Ruby‘s Laguna, Limited?‖ 

Cavanaugh replied: ―Ruby‘s Laguna, Limited was offered opportunities . . . to be in 

concert with section 10.14.‖ Seeking clarification, the attorney asked Cavanaugh to 

whom opportunities had been offered under the right of first refusal. Cavanaugh 

responded: ―Because the first right is owned by Ruby‘s Laguna, Limited, that‘s who we 

would have made the offer to . . . .‖

Laguna Associates also offered a portion of a transcript of the December 

17, 2009 deposition of Ralph Kosmides, allegedly the chief administrative officer of 

Ruby‘s Diner. Kosmides was asked: ―Ruby‘s Irvine Woodbridge was not offered to 
13

either DeCinces or Ruby‘s Laguna Associates; correct?‖ Kosmides replied: ―None of 

these were offered to DeCinces. They were all offered to Ruby‘s Laguna Associates.‖

Finally, Laguna Associates also presented an excerpt from the response of 

Ruby‘s Diner to Laguna Associates‘s fourth set of requests for admissions. Ruby‘s Diner 

was asked to admit that it had offered Laguna Associates an opportunity to invest in a 

particular project in 2008. In response, Ruby‘s Diner stated: ―Without waiver of the 

Preliminary Statement and General Objections, [Ruby‘s Diner] responds: Admit.‖ 

Laguna Associates argued that the testimony of Cavanaugh and Kosmides 

and the discovery response show that Ruby‘s Diner itself acknowledged that the right of 

first refusal remained with Laguna Associates after the buy-out transactional documents 

were returned to Attorney Brown in 2007.

E. Summary Judgment Analysis:

When Ruby‘s Diner provided the court with a copy of the assignment 

agreement, coupled with DeCinces‘s May 4, 2011 deposition testimony to the effect that 

the assignment agreement was ―in effect,‖ it met its burden to show that the second cause 

of action had no merit, inasmuch as it produced evidence to show that Laguna Associates 

no longer held the right of first refusal and had no standing to enforce it. The burden then 

shifted to Laguna Associates to raise a triable issue of material fact as to the cause of 

action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra,

25 Cal.4th at p. 849.) It met this burden.

DeCinces‘s deposition testimony was inconsistent, true enough, but he was 

being asked questions which required a legal conclusion. His declaration, and that of his 

attorney, provided information regarding the history of the assignment agreement. Via 

his declaration, DeCinces did not retract his prior concession that the assignment 

agreement existed, but he explained why the assignment agreement was ineffective—

because it was part and parcel of a failed buy-out transaction. These portions of 
14

DeCinces‘s declaration remained intact even though objections to other portions of his 

declaration were sustained.

Ruby‘s Diner claims DeCinces‘s declaration is a sham, fabricated to 

contradict his unfavorable deposition testimony and the terms of the assignment 

agreement itself. It contends the court, in making its ruling, must necessarily have 

rejected the declaration as a sham. It further contends that the court did not err in 

rejecting the declaration, even in the summary judgment context.

―In D’Amico [v. Board of Medical Examiners (1974) 11 Cal.3d 1], the 

California Supreme Court declared that  ̳[w]here a plaintiff‘s admissions in a deposition 

contradict statements in the plaintiff’s affidavits opposing the summary judgment, ―the 

rule of liberal construction loses its efficacy and the granting or denial of the motion for 

summary judgment depends upon the issues of credibility. Accordingly, when a 

defendant can establish his defense with the plaintiff‘s admissions sufficient to pass the 

strict construction test imposed on the moving party . . . , the credibility of the admissions 

are valued so highly that the controverting affidavits may be disregarded as irrelevant, 

inadmissible or evasive.‖‘ [Citations.] [¶] Properly applied, D’Amico is limited to 

instances where  ̳credible [discovery] admissions . . . [are] contradicted only by selfserving declarations of a party.‘ [Citations.]‖ (Scalf v. D. B. Log Homes, Inc. (2005) 128 

Cal.App.4th 1510, 1521-1522.)

Here, the declaration of DeCinces was not the only evidence contradicting 

his deposition testimony. Rather, DeCinces also presented the declaration of his attorney, 

as well as the deposition testimony of Cavanaugh and Kosmides and a discovery 

response of Ruby‘s Diner itself.

Importantly, ―[t]here is a vast difference between written discovery 

admissions, which are  ̳―a studied response . . . ,‖ that occur ―under the direction and 

supervision of counsel, who has full professional realization of their significance‖‘ 

[citation] and glib, easily misunderstood answers given by a lay opponent in a 
15

deposition.‖ (Scalf v. D. B. Log Homes, Inc., supra, 128 Cal.App.4th at p. 1522.) 

Indeed, in Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, it was held that, in the 

summary judgment context, even apparently clear and conclusive deposition testimony 

about an assignment could be contradicted by a later declaration of the deponent to the 

effect that she had not understood the questions put to her at deposition. Although the 

plaintiff in Niederer had testified at deposition that a promissory note had never been 

assigned to her, she later provided a supplemental declaration admitting that the note had 

been assigned to her by written assignment and explaining that she had not understood 

the deposition question regarding the assignment because she ― ̳did not understand the 

concept of assignment.‘‖ (Id. at p. 1502.) This explanation having been made, it was 

proper to consider the contradictory evidence and grant summary judgment in favor of 

the plaintiff as the assignee of the promissory note, who was entitled to enforce it. (Id. at 

pp. 1503-1504.)

In the matter before us, DeCinces‘s declaration contradicted certain of his 

prior deposition testimony. However, he explained that he was confused by the 

questioning at deposition and did not understand the meaning of the legal term 

―assignment.‖ In any event, it is clear that he was being asked questions which called for 

a legal expertise he did not possess as a layman. In the summary judgment context, 

deposition answers are evidence to be ―considered and weighed in conjunction with other 

evidence. They do not constitute incontrovertible judicial admissions as do, for example, 

concessions in a pleading [citations], or answers to requests for admissions . . . . 

[Citation.]‖ (Scalf v. D. B. Log Homes, Inc., supra, 128 Cal.App.4th at p. 1522.)

―D’Amico has never stood for the proposition that highly inculpatory 

testimony elicited from a party in a deposition may be sufficient by itself to warrant 

summary judgment, or that it relieves the moving party of its ordinary burden of showing 

the absence of a genuine factual dispute. On the contrary, the cases are clear that 

summary judgment should not be granted on the basis of  ̳tacit admissions or fragmentary 
16

and equivocal concessions.‘ [Citations.]‖ (Scalf v. D. B. Log Homes, Inc., supra, 128 

Cal.App.4th at pp. 1522-1523.) Furthermore, the D’Amico rule does not apply to 

mistaken legal conclusions. (Id. at p. 1523.)

In addition to the declaration of DeCinces, we have the declaration of 

Attorney Brown. He stated that the assignment agreement was prepared as part of the 

failed buy-out transaction, and that when the deal fell through he requested that Attorney 

Duboff return the signed documents, including the assignment agreement. These 

portions of Attorney Brown‘s declaration were untouched by the ruling sustaining 

objections to other portions of his declaration.

Laguna Associates also provided the deposition testimony of Cavanaugh 

and Kosmides, to the effect that the right of first refusal belonged to Laguna Associates. 

It further provided the portion of Ruby‘s Diner‘s response to the request for admission 

wherein Ruby‘s Diner acknowledged, subject to certain objections not made plain by the 

record, that it had made an offer to Laguna Associates to participate in a particular project 

in 2008, a date after Attorney Duboff had purportedly received, and then returned, the 

assignment agreement.

Ruby‘s Diner contends that we should not consider the deposition 

testimony of Cavanaugh or Kosmides or the discovery response of Ruby‘s Diner. It says 

that Cavanaugh, Kosmides and Ruby‘s Diner had no personal knowledge of whether 

Laguna Associates or DeCinces was the one who held the right of first refusal. While 

that may be, we note that the depositions were taken and the discovery response was 

provided after the date Attorney Duboff purportedly had both received the assignment 

agreement and returned it to Attorney Brown. Arguably, if Attorney Duboff, 

representing Ruby‘s Diner, had received and returned the assignment agreement, the fact 

that Cavanaugh, Kosmides, and Ruby‘s Diner thereafter regarded Laguna Associates as 

the holder of the right of first refusal could support a finding that the assignment 

agreement was known by Ruby‘s Diner to be ineffective. Or, to the extent Ruby‘s Diner 
17

made offers to Laguna Associates, and DeCinces did not speak up and clarify that offers 

should be made to him personally as assignee, this could support a finding that indeed the 

parties to the assignment agreement never intended it to be effective unless the buy-out 

transaction was consummated. In any event, these are not matters we resolve on appeal. 

― ̳In reviewing the evidence, we strictly construe the moving party‘s 

evidence and liberally construe the opposing party‘s and accept as undisputed only those 

portions of the moving party‘s evidence that are uncontradicted.‘ [Citation.]  ̳Only when 

the inferences are indisputable may the court decide the issues as a matter of law. If the 

evidence is in conflict, the factual issues must be resolved by trial. ―Any doubts about 

the propriety of summary judgment . . . are generally resolved against granting the 

motion, because that allows the future development of the case and avoids errors.‖‘ 

[Citation.]‖ (Scalf v. D. B. Log Homes, Inc., supra, 128 Cal.App.4th at p. 1519.) 

The evidence Laguna Associates presented in opposition to the motion, 

inconsistencies notwithstanding, was sufficient to raise a triable issue of material fact as 

to whether Laguna Associates assigned away its interest in the right of first refusal in 

2005.

F. Judicial Estoppel:

The foregoing analysis addresses the appeal as originally framed by the 

parties. However, we do not end our analysis here. By order of March 12, 2013, we 

directed the parties to file supplemental briefing addressing whether Ruby‘s Diner is 

barred by the doctrine of judicial estoppel from claiming that Laguna Associates is not 

the current holder of the right of first refusal. We also asked the parties to be prepared to 

argue the issue at oral argument.

― ̳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.]‘‖ (Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 735, fn. 
18

omitted.) ― ̳The party invoking judicial estoppel must show that (1) the party against 

whom the estoppel is asserted took an inconsistent position in a prior proceeding and (2) 

that the position was adopted by the first tribunal in some manner such as by rendering a 

favorable judgment. [Citation.]‘ [Citation.]‖ (Ibid.)

Here, Ruby‘s Diner has taken two inconsistent positions in these judicial 

proceedings. It first asserted, in its demurrer, that DeCinces was not the holder of the 

right of first refusal and later asserted, in its motion for summary judgment, that 

DeCinces was the holder of the right of first refusal. Remarkably, Ruby‘s Diner was 

successful in both assertions, inasmuch as the trial court both sustained the demurrer and 

granted summary judgment. 

The dual goals of the doctrine of judicial estoppel ― ̳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.]‘ [Citation.]‖ (Koo v. 

Rubio’s Restaurants, Inc., supra, 109 Cal.App.4th at p. 735.) We cannot imagine a better 

case for the application of the doctrine. Here, DeCinces was originally identified as the 

plaintiff pursuing the second cause of action. Ruby‘s Diner convinced the court that 

DeCinces was not the proper party, so the demurrer was sustained and the plaintiffs 

amended the complaint accordingly, to identify Laguna Associates as the accepted 

plaintiff pursuing that cause of action. Once all other causes of action were settled and 

dismissed, Ruby‘s Diner said that Laguna Associates could not maintain the cause of 

action because DeCinces was the only one who could. In other words, through its 

successive motions, Ruby‘s Diner convinced the court that, although the right of first 

refusal existed and was owned by either DeCinces or Laguna Associates, neither of them 

could pursue a cause of action for breach of the right of first refusal because neither of 

them was ever the proper plaintiff at the proper time. We have difficulty digesting this 

notion. 
19

Curiously, Ruby‘s Diner, in its supplemental letter brief, argues that it 

never took inconsistent positions in the trial court. Apparently, it does not regard stating, 

first, that DeCinces was not the proper plaintiff because he did not hold the right of first 

refusal, and second, that Laguna Associates was not the proper plaintiff because 

DeCinces did hold the right of first refusal, as taking inconsistent positions. Instead, 

Ruby‘s Diner focuses on the particular wording of its demurrer.

Ruby‘s Diner emphasizes that, in its demurrer, it argued DeCinces was not 

a party to the Ruby‘s Diner Laguna Beach Partnership Agreement, which contained the 

right of first refusal. Ruby‘s Diner further states that, in its demurrer, it ―noted that  ̳to 

the extent Plaintiffs intend to allege that the [right of first refusal] rights were transferred 

to DeCinces following the execution of the Ruby‘s Diner Laguna Beach [Partnership] 

Agreement, Plaintiffs would be required to plead such facts. . . .‘‖ (Fn. and underscoring 

omitted.)

According to Laguna Associates, the language Ruby‘s Diner omitted from 

the quoted portion of its demurrer is quite significant. The entire sentence from the 

demurrer reads: ―Moreover, to the extent Plaintiffs intend to allege that the [right of first 

refusal] rights were transferred to DeCinces following the execution of the Ruby‘s Diner 

Laguna Beach [Partnership] Agreement, Plaintiffs would be required to plead such facts, 

including compliance with Section 6.03 of that agreement, which provides that the 

limited partner may not transfer any portion of its interest in the partnership without first 

offering it to the partnership at the price at which such interest is proposed to be sold and 

upon the proposed terms thereof.‖ (Underscoring omitted.) In other words, Ruby‘s 

Diner characterized an assignment of the right of first refusal as a transfer of a 

partnership interest that would be barred if it were not first offered to the Ruby‘s Diner 

Laguna Beach Partnership, of which Ruby‘s Diner was general partner.

But there‘s even more to it than that. Ruby‘s Diner omits to mention a key 

provision of the Ruby‘s Diner Laguna Beach Partnership Agreement that has direct 
20

bearing upon the matters at issue. We observe that section 6.06 of the Ruby‘s Diner 

Laguna Beach Partnership Agreement provides: ―Any assignment or purported 

assignment of a Partnership interest which does not comply with the provisions of 

Sections 6.02 through 6.05 above, as applicable, shall be null and void . . . .‖ In other 

words, when Ruby‘s Diner stated in its demurrer that if DeCinces intended to claim that 

he was the assignee of the right of first refusal, he would have to show that Laguna 

Associates had complied with the requirements of the Ruby‘s Diner Laguna Beach 

Partnership Agreement by offering the assignment to the Ruby‘s Diner Laguna Beach 

Partnership before offering it to DeCinces, Ruby‘s Diner was indicating that if DeCinces 

failed to make that showing the purported assignment would be void.

When DeCinces opposed the demurrer, he did not claim that he owned the 

right of first refusal as assignee. He claimed that he owned it as general partner of 

Laguna Associates. Not surprisingly, the court sustained the demurrer. As Ruby‘s Diner 

points out, DeCinces did not seek to amend in order to clarify that he held the right of 

first refusal as assignee. But there are several reasons why he would not do so. First, 

faced with the realization that a man who is a general partner in a limited partnership 

does not own the partnership‘s rights in his individual capacity, the plaintiffs amended 

the complaint to state that the limited partnership, Laguna Associates, was the holder of 

the right of first refusal. Second, both DeCinces and Attorney Brown have declared that 

the assignment agreement, as part and parcel of the failed buy-out transaction, never 

became effective. And third, it would appear that the attempted assignment was void in 

any event because, evidently, Laguna Associates did not offer to assign the right of first 

refusal to the Ruby‘s Diner Laguna Beach Partnership before it executed the assignment 

agreement in favor of DeCinces. 

After the demurrer had been sustained and Ruby‘s Diner had successfully 

knocked out DeCinces as plaintiff, it brought the motion for summary judgment to knock 

out Laguna Associates as plaintiff, stating that the true holder of the right of first refusal 
21

was DeCinces, as assignee. It apparently abandoned its prior position that any 

assignment by Laguna Associates would have been barred unless first offered to the 

Ruby‘s Diner Laguna Beach Partnership. It ignored the corollary—that such an 

assignment would have been null and void. And, it made no allegation that Laguna 

Associates ever had offered to assign the right of first refusal to the Ruby‘s Diner Laguna 

Beach Partnership before executing the assignment agreement in favor of DeCinces. In 

other words, Ruby‘s Diner suggested no state of facts that could have made the 

assignment valid.

Ruby‘s Diner did indeed take inconsistent positions before the trial court 

with respect to the validity of any assignment agreement. However, Ruby‘s Diner is 

correct that the trial court did not sustain the demurrer on the basis of the assignment 

agreement, which DeCinces did not state was the basis of his claim.

Ruby‘s Diner is not correct, however, in its assertion that it took no 

inconsistent position upon which the trial court relied. As we have already stated, it first 

took the position that DeCinces was not the proper plaintiff and after the court agreed 

with that, Ruby‘s Diner then switched horses and took the position that DeCinces, not 

Laguna Associates, was the proper plaintiff. Then the court agreed with that. So, when 

the dust settled, neither DeCinces nor Laguna Associates would ever be standing before 

the court at the right time on the right day to be permitted to pursue his or its legal rights. 

Talk about a fast ball.

In the interests of equity and judicial integrity, we apply the doctrine of 

judicial estoppel against Ruby‘s Diner. Ruby‘s Diner having previously asserted that 

DeCinces was not a proper plaintiff because he was not a party to the Ruby‘s Diner 

Laguna Beach Partnership Agreement, which identified Laguna Associates as the holder 

of the right of first refusal, and the court having sustained the demurrer on that basis, 

cannot now claim that DeCinces, and not Laguna Associates, is the holder of the right of 
22

first refusal. On remand, Ruby‘s Diner shall be judicially estopped from claiming that 

Laguna Associates is not the holder of the right of first refusal.

G. Attorney Fees:

Inasmuch as we reverse the summary judgment, the award of attorney fees 

in favor of Ruby‘s Diner as the prevailing party is also reversed. 

III

DISPOSITION

The judgment and the order are reversed. Ruby‘s Laguna Associates, Ltd. 

shall recover its costs on appeal.

MOORE, J.

WE CONCUR:

O‘LEARY, P. J.

BEDSWORTH, J.