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Filed 8/26/16 Boisvert v. DeGutz CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIRST APPELLATE DISTRICT

DIVISION TWO

RENE G. BOISVERT,

 Plaintiff and Appellant,

 v.

DONALD DEGUTZ,

 Defendant and Respondent.

 A143891

 (Alameda County Super. Ct.

 No. RG11559883)

Appellant Rene G. Boisvert, appearing in propria persona, argues many issues in a 

long and rambling appeal, but not the one issue that matters. 

Boisvert appeals from the superior court’s order granting its own sua sponte 

motion for judgment on the pleadings and dismissing Boisvert’s action. His appeal is 

unopposed. The superior court concluded, among other things, that Boisvert’s action, 

including as articulated in both his initial and proposed first amended complaints, was an 

impermissible attack on a final judgment that was barred by the doctrine of res judicata. 

Boisvert does not address this dispositive aspect of the court’s order and, therefore, does 

not effectively challenge its presumptive correctness. Further, we conclude the superior 

court did not err in ruling that Boisvert’s claims were barred by the doctrine of res 

judicata. For these two separate and independent reasons, we affirm the court’s order.

BACKGROUND

In 2008, Donald De Gutz sued Boisvert in a prior action regarding a real estate 

transaction (prior action). We extensively recounted the events of this prior action in an

unpublished opinion, De Gutz v. Boisvert, Case No. A126839, issued on January 28, 
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2013.

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 We will not repeat them at great length here. After a bench trial, the trial court in 

the prior action issued a judgment in favor of De Gutz on his breach of contract, breach 

of fiduciary duty and fraud claims, and awarded him $161,732.56. This total amount 

included $37,355.00 for De Gutz’s increased tax liability for 2008 and $91,587.00 for his 

increased tax liability for 2009. Boisvert appealed the judgment to this court. 

In February 2011, while Boisvert’s appeal was pending, Boisvert, acting in propria 

persona, sued De Gutz; De Gutz’s attorney in the prior action, Andrew Cohn; and an 

expert witness in the prior action regarding De Gutz’s increased tax liability, Zachary 

Epstein. This is the present action. In his initial complaint, Boisvert made damages 

claims for abuse of process (against De Gutz and Cohn only), violation of RICO, fraud 

and perjury. Underlying all of his claims was Boisvert’s allegation that in the course of

the trial of the prior action, the defendants presented fraudulent and misleading testimony 

and/or documents about De Gutz’s increased tax liability. 

In December 2011, while the appeal in the prior action was pending, the court 

ordered a stay of proceedings in the present action. The court further ordered, “[t]he 

parties may seek leave to lift the stay via a noticed motion or ex parte application once 

the appeal has been fully resolved.” 

In February 2014, after we issued our opinion affirming the judgment in the prior 

action, Boisvert moved to lift the stay so that discovery could proceed and he could file 

an amended complaint. In March 2014, the superior court granted in part Boisvert’s 

motion, but only so that the superior court could consider its own sua sponte motion for 

judgment on the pleadings so as to dismiss the present action. The court stated: “Given 

the final disposition of the [prior action], . . . the findings of the Court of Appeal 

affirming the judgment . . . and the allegations and damages alleged in Plaintiff’s 

complaint in this action, the court finds good cause to set a hearing on its motion for 

judgment on the pleadings” because the present action “appears to be barred by the 

 

1 We take judicial notice of our opinion pursuant to Evidence Code sections 452 

and 459 for the purpose of reciting the general background to the current dispute. 
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doctrine of res judicata.” The court ordered that the stay would otherwise remain “in full 

force and effect.” 

Despite the court’s order that the stay remained in place other than to consider the 

court’s own motion for judgment on the pleadings, Boisvert filed a first amended 

complaint in May 2014 against De Gutz and Does 1 through 5, in which he brought 

damages claims for extrinsic fraud, deceit by intentional misrepresentation, deceit by 

negligent misrepresentation, deceit by concealment, and intentional infliction of 

emotional distress. Boisvert continued to rely on the allegation that defendants engaged 

in a scheme by which they fabricated evidence at trial in the prior action in order to 

falsely show that De Gutz would incur damages in the form of increased income tax 

liabilities, in order for De Gutz to obtain a monetary judgment. 

In July 2014, Boisvert sought to have the court enter a default judgment against 

De Gutz based on Boisvert’s first amended complaint. Apparently the court entered a 

default against De Gutz, but later that same month, it struck Boisvert’s first amended 

complaint as in contravention to its March 2014 stay order and struck the default as 

erroneously entered by the court. 

Boisvert later moved to file his first amended complaint. In December 2014, the 

superior court denied his motion. It concluded that Boisvert was “attempt[ing] to 

relitigate matters that were fully adjudicated against him in the [prior action]. This action 

is barred by the doctrine of res judicata.” It also found Boisvert’s proposed first amended 

complaint was “a sham designed to get around and avoid the legal consequences of the 

[prior action] and should be stricken.” The court adopted a prior ruling by a previous

judge who had made, and tentatively granted, the sua sponte motion for judgment on the 

pleadings. The court stated, “[i]n addition to the reasons set forth in [the] tentative ruling, 

it is clear that [Boisvert’s] best attempt to create a viable cause of action against [De

Gutz], in the form of the attempted First Amended Complaint, suffers from the same 

malady: an attack on a final judgment that has been appealed and affirmed. [¶] The 

court therefore grants the sua sponte Motion on the Pleadings and dismisses the entire 

case with prejudice.” 
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Boisvert filed a timely notice of appeal from this ruling. 

DISCUSSION

Boisvert argues the court erred in its ruling because he, as a party appearing in 

propria persona, has the right have his pleadings examined under particularly liberal 

standards and has the right to discovery before any dismissal of his action. Further, the 

court’s denials of his numerous requests to amend his complaint were in error, an abuse 

of discretion, and violative of the “preferred” approach to permit amendment of 

complaints so that a pleading may be tested by demurrer. 

We need not address Boisvert’s arguments because they do not address the 

dispositive issue underlying the superior court’s ruling: that is, no matter how liberally 

his initial and first amended complaints might be construed and how many times the 

court might allow him to amend his complaint, the present action is barred by the 

doctrine of res judicata. “ ‘A judgment or order of the lower court is presumed correct. 

All intendments and presumptions are indulged to support it on matters as to which the 

record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court

(1970) 2 Cal.3d 557, 564.) Appellant has the burden of affirmatively showing any error. 

(Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1189.) Boisvert, by not 

addressing the court’s conclusion that his action is barred by the doctrine of res judicata, 

has not met this burden. We affirm the court’s dismissal of his action for this reason 

alone.

Further, we agree with the lower court that no matter how liberally Boisvert’s

initial and first amended complaints might be construed and how many times the court 

might allow him to amend his complaint, Boisvert’s action is barred by the doctrine of res 

judicata. All of Boisvert’s claims in his initial and proposed first amended complaints are 

grounded in his claim that false evidence about De Gutz’s anticipated tax liability were 

presented to the court. Such a claim is clearly not allowed. “The public policy 

underlying the principle of res judicata that there must be an end to litigation requires that 

the issues involved in a case be set at rest by a final judgment, even though a party has 

persuaded the court or the jury by false allegations supported by perjured testimony. This 
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policy must be considered together with the policy that a party shall not be deprived of a 

fair adversary proceeding in which fully to present his case. Thus, equitable relief will be 

denied where it is sought to relitigate an issue involved in the former proceeding on the 

ground that allegations or proof of either party was fraudulent or based on mistake, but 

such relief may be granted if the party seeking it was precluded by fraud or the mistake of 

the other party from participating in the proceeding or from fully presenting his case.” 

(Jorgensen v. Jorgensen (1948) 32 Cal.2d 13, 18, cited in Cedars-Sinai Medical Center v. 

Superior Court (1998) 18 Cal.4th 1, 10.) 

As indicated by the “extrinsic fraud” label on one of the claims in his first 

amended complaint, Boisvert appears to believe he should be allowed to proceed with his 

action because of the nature of the fraud he is pursuing. However, his label aside, the 

nature of his claim is obviously and conclusively one for intrinsic, rather than extrinsic, 

fraud regardless of how liberally we construe his initial and proposed first amended 

complaints. As our Supreme Court has pointed out, there is a “line of cases that forbid 

direct or collateral attack on a judgment on the ground that evidence was falsified,

concealed, or suppressed. After the time for seeking a new trial has expired and any 

appeals have been exhausted, a final judgment may not be directly attacked and set aside 

on the ground that evidence has been suppressed, concealed, or falsified; in the language 

of the cases, such fraud is ‘intrinsic’ rather than ‘extrinsic.’ [Citations.] Similarly, under 

the doctrines of res judicata and collateral estoppel, a judgment may not be collaterally 

attacked on the ground that evidence was falsified or destroyed.” (Cedars-Sinai Medical 

Center v. Superior Court, supra, 18 Cal.4th at p. 10.) 

Thus, a second and independent reason why Boisvert’s appeal lacks merit is that 

the superior court correctly concluded that his action, under any construction of his 

pleadings, was barred by the doctrine of res judicata. 

DISPOSITION

The order appealed from is affirmed. Respondent is awarded costs of appeal.
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STEWART, J.

We concur.

RICHMAN, Acting P.J.

MILLER, J.