Opinion
D071457
12-06-2017
SIMONA BAKKER, Plaintiff and Appellant, v. CHRISTINE A. LIBS, as Trustee, etc., Defendant and Respondent.
Simona Bakker, in pro. per., for Plaintiff and Appellant. Reyzin Law Firm and Dimetri Reyzin for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2013-00031747-CU-NP-NC) APPEAL from a judgment of the Superior Court of San Diego County, Earl H. Maas III, Judge. Affirmed. Simona Bakker, in pro. per., for Plaintiff and Appellant. Reyzin Law Firm and Dimetri Reyzin for Defendant and Respondent.
This is the second time this case has been on appeal. In 2011 we affirmed an $11,339.17 judgment for conversion in favor of Simona Bakker against Christine A. Libs, individually and as trustee of the Christine A. Libs Trust (Libs Trust). (Bakker v. Libs (July 29, 2011, D057097) [nonpub. opn.] (Bakker I).) Two years later, Bakker, who is self-represented, sued Libs for conversion of the same property, seeking a different measure of damages.
Libs, who was in bankruptcy when Bakker served her with the summons and complaint in this case, did not file a responsive pleading. After granting Libs relief from default, the court sustained her demurrer to the complaint on res judicata (claim preclusion) grounds.
Bakker appeals from the judgment of dismissal, asserting the court erred in granting relief from default and in sustaining the demurrer. We disagree with Bakker's contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Much of the factual and procedural background is taken from our previous nonpublished opinion in this matter, Bakker I, supra, 2011 Cal.App.Unpub. Lexis 5719.
A. Bakker I
In December 2005 Libs and Bakker entered into a one-year lease for space under a hay storage facility on Libs's ranch. The parties agreed that Bakker could use the space—a metal roof with pole supports and no sides—and that she would construct a woodshop facility using the roof for cover. The parties agreed the building would be treated as personal property and that Bakker would have the right to remove it and its contents at the end of the lease.
In 2008 disputes arose between Bakker and Libs regarding ownership and use of the building. Bakker sued Libs individually and as trustee of the Libs Trust for conversion.
After a bench trial, the court found Libs had converted Bakker's building and its contents. The court determined Bakker was entitled to damages under Civil Code section 3336, measured by the reasonable value of the converted property plus interest from the date of the conversion. As the trial court stated, "In effect, the defendant is forced to buy the plaintiff's property."
The court valued the building by determining what a willing buyer would pay to a willing seller. The court acknowledged that Bakker claimed the building's value was $59,000, but Libs presented evidence that the cost of dismantling, reassembling, and bringing the building up to building codes exceeded $59,000. In view of this evidence, the court concluded Bakker presented insufficient evidence to establish that a willing and informed buyer would pay anything for the building, and thus determined the value of the building was zero. The court awarded Bakker $11,339.17 for the building's contents.
Bakker asserts the trial court in Bakker I "expressed confusion and difficulty in determining the amount of damages to award" for the building. However, Bakker misreads the court's statement of decision. What the court found to be "confused and confusing" was not damages—but rather the post-2008 interactions between Libs and Bakker about ownership of the building, which included a key e-mail allegedly sent but never received, and a note left in a mailbox, allegedly not seen for days, that was partially obliterated by rain.
Bakker appealed, challenging the court's award of zero damages for the building. She argued the evidence showed the building was worth at least $59,000. She also asserted there was evidence the building was worth $63,787.10 under an alternative valuation method based on the cost of materials and labor.
This court rejected Bakker's assertions and affirmed the trial court's zero award for the building, stating:
"[T]he trial court was entitled to rely on all facts and circumstances in determining the converted structure's value as of April 2008, and it alone assessed the weight and credibility of the witnesses, an evaluation to which we must defer. [Citation]. The present case involves a structure that had been placed upon leased land. We infer the trial court concluded . . . that any use of that structure, and consequently its value, depended on its removal to another location. Consequently, the court reasonably took into account . . . the expenses of disassembling and relocating the structure, including the cost of ensuring it met applicable building codes."
B. Libs's Bankruptcy
In October 2011, about three months after this court's decision in Bakker I, supra, 2011 Cal.App.Unpub. Lexis 5719, Libs filed a bankruptcy petition. By March 2012 Bakker knew Libs was in bankruptcy.
C. Bakker II
On January 28, 2013—while Libs's bankruptcy was pending—Bakker filed a superior court complaint against Libs (Bakker II) for conversion "of plaintiff's modular building, for costs to recover converted property; and for damages to plaintiff's property." As she had done before, Bakker sued Libs individually and as trustee of the Libs Trust.
Bakker also sued Kenneth Carl Hays doing business as Hayes Construction, and in the second cause of action alleged Hays "conspired" to deprive Bakker of possession of the modular building. The register of actions shows the court granted Hays's motion for judgment on the pleadings and dismissed him from the action. Bakker concedes that Hays is no longer a party in the case.
Bakker's complaint alleges "[t]he issue of conversion of [Bakker's] modular building, the subject of this action, was adjudicated in [Bakker's] favor" in her prior action. She further alleges that in October 2011 Libs filed for bankruptcy. Bakker alleges that the bankruptcy court allowed her to enter Libs's land to "recover her building, to disassemble and to remove it." Bakker alleges the prior case did not resolve "the issue of damages for conversion, and costs to pursue said property and to recover the subject building." She seeks $150,000 as "damages . . . for conversion" of "the subject building only, resulting in loss of use and profit, by [Bakker] of her modular building, if she had been allowed to regain possession of her building in March 2008 . . . ." Bakker also seeks $2,750 in damages for costs in pursuing and recovering "the converted property."
D. The Bankruptcy Court Orders Bakker to Dismiss Libs
On January 28, 2013, Libs was served with the summons and complaint in Bakker II. About two weeks later, Libs notified the trial court she was in bankruptcy. In response, the court apparently stayed further proceedings in Bakker II.
The parties have not provided a stay order in the record; however, after Libs's bankruptcy case concluded, the court issued an order "lift[ing]" the stay.
Meanwhile, Libs asked the bankruptcy court to sanction Bakker for commencing Bakker II in violation of the automatic stay. In December 2014 the bankruptcy court sanctioned Bakker $3,950 and ordered Bakker to dismiss "the Debtor" from Bakker II. Bakker interpreted that order as requiring her to dismiss Libs only in her individual capacity, and not also as trustee of the Libs Trust. Four days later, Bakker dismissed Libs (without prejudice) from Bakker II, but "only . . . in her [i]ndividual capacity."
E. Entry of Default
About a year later, in November 2015, Libs's bankruptcy case ended, and the bankruptcy court issued an order entitled "Discharge of Debtor." On March 21, 2016, after Bakker notified the trial court of this order, the court lifted the stay in Bakker II and scheduled a case management conference for mid-May 2016. However, the case management conference never happened because two days later (on March 23, 2016), Bakker filed a request for entry of default against Libs as trustee of the Libs Trust. The same day, the clerk entered default "as requested."
F. Motion to Vacate Entry of Default
On May 9, 2016, Libs filed a motion to set aside the default. Libs supported her motion with a declaration authenticating excerpts of the Libs Trust, showing it is a self-settled revocable trust. Libs asserted the entry of default was "void" because it violated the bankruptcy court's discharge order. She asked the court to set aside the default under Code of Civil Procedure section 473, subdivision (d), which provides, "The court may . . . set aside any void judgment or order." Bakker filed opposition, primarily asserting the exclusive means of setting aside entry of default is under section 473, subdivision (b), a statute Libs did not invoke.
Undesignated statutory references are to the Code of Civil Procedure.
After conducting a hearing, the court granted Libs's motion to set aside the default under section 473, subdivision (d).
G. Demurrer
Subsequently, Libs demurred to the complaint in Bakker II on claim preclusion grounds. Bakker filed opposition, asserting the court lacked jurisdiction to rule on the demurrer because the court erroneously granted relief from default. She also argued that the trial court's judgment in Bakker I did not preclude an action for damages caused by postjudgment loss of use of "her building."
The court sustained the demurrer without leave to amend, stating, "By now seeking to recover damages for conversion in the form of the cost for disassembling the building and loss of profit, [Bakker] is seeking to relitigate the issue of damages. [Bakker] previously failed to meet her burden of proof of establishing a reasonable value of the building. Plaintiff cannot now attempt to do so in subsequent litigation."
Bakker appealed from the subsequent judgment of dismissal. Her challenge to the order granting relief from default may be reviewed on appeal from that judgment. (See Velicescu v. Pauna (1991) 231 Cal.App.3d 1521, 1523, fn. 1.)
DISCUSSION
I. LIBS DOES NOT "LACK STANDING"
Libs, as trustee of the Libs Trust, is the only defendant remaining in this case. Bakker contends that because Libs is not an attorney, she cannot represent the Libs Trust and, therefore, she "lacks standing to participate in any proceedings in this action."
While it is true that a trustee who is not an attorney cannot represent the trust in court, that rule has no current application to this case. Libs, as trustee of the Libs Trust, was represented by attorneys when she litigated the motion for relief from default and the demurrer. Moreover, since January 17, 2017—nearly two months before the record on appeal was even filed—Libs as trustee has been represented by counsel on appeal.
Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1524.
II. THE COURT CORRECTLY SET ASIDE THE DEFAULT
A. The Standard of Review
We review the order setting aside the default de novo because the trial court's order was based on undisputed litigation facts. (See Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1441, fn. 5 (Ramos).)
B. In Proper Cases, a Default May Be Set Aside Under Section 473 , subdivision (d)
Section 473, subdivision (b) provides one means for obtaining relief from entry of default. Generally, under this statute, the court "may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect."
Here, Libs did not seek to set aside the default under section 473, subdivision (b). Rather, she asserted the entry of default was void and, therefore, should be set aside under subdivision (d) of the same statute, which provides in part: "The court . . . may, on motion of either party . . . set aside any void judgment or order."
Bakker contends section 473, subdivision (b) is the exclusive method for setting aside entry of default.. Without citing any authority, Bakker asserts, "Section 473 [subdivision] (b) . . . is the only statutory provision that authorizes courts to grant a party relief from default." Because the court did not set aside Libs's default under section 473, subdivision (b), Bakker contends the court erroneously set aside the default and all subsequent proceedings are void.
Bakker's argument fails because section 473, subdivision (b) is not the exclusive means of seeking to set aside a default. In appropriate cases, section 473, subdivision (d) may be used to obtain relief from a default and default judgment. (See, e.g., Ramos, supra, 223 Cal.App.4th at pp. 1440, 1444 [affirming order vacating default and default judgment as void under section 473, subdivision (d)]; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1443 [trial court properly vacated entry of default and default judgment under section 473, subdivision (d)].)
Section 473, subdivision (d) provides the court may set aside a void "judgment or order." Libs brought her motion under section 473, subdivision (d) after the clerk entered a default, but before the court entered a default judgment. Although the clerk's entry of default is a "ministerial act" (Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1815) and not an order or judgment, it would be anomalous to hold that in the face of undisputed evidence that service of process is void, a trial court would be compelled to enter a void judgment (only to thereafter set it aside) simply because the defendant's motion is brought after entry of default but prior to entry of judgment.
C. The Court Correctly Set Aside the Default
The trial court's order setting aside the default states:
"The motion of [d]efendant Christine Libs to set aside default is granted. [Section] 473 [, subdivision] (d). The court takes judicial notice of the 12/15/14 bankruptcy order directing [Bakker] to
dismiss 'debtor' Christine Libs. Since a judgment here can only be entered against a trustee and [d]efendant Libs is being sued in her capacity as trustee, the default is void."
Asserting this order is "confusing and contradictory," Bakker contends the court erred by "grant[ing] relief from default to the wrong party, Christine Libs, in her individual capacity, who was no longer a party in the action, and who was not the moving party in the motion[]." (Italics omitted.)
However, reasonably construed the order is not contradictory and does not grant relief to the wrong party. The order is not a model of clarity because it is missing a link in the chain of reasoning. The trial court's premise is the bankruptcy court ordered "the debtor" to be dismissed from Bakker II. The court's conclusion is the entry of default against Libs as trustee is, therefore, void. The logical connection between the premise and the conclusion, left unsaid, is that the trial court considered the bankruptcy court's order to dismiss "the debtor" as including Libs as trustee of the Libs Trust. As so construed, the trial court granted relief to the proper party; i.e., Libs as trustee of the Libs trust—and the order is not self-contradictory.
In any event, even if the court's reasoning is flawed as Bakker contends, we are nevertheless required to affirm if the order is correct on any legal basis supported by the record. This is because we review the correctness of the trial court's ruling and not the trial court's rationale. "'There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct.'" (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 100.)
Turning then to whether the court correctly set aside the default, we conclude service of the Bakker II summons and complaint on Libs violated the automatic stay effected by Libs's bankruptcy and, therefore, service of process was void. The Libs Trust is a self-settled revocable trust. Such trusts are "a probate avoidance device." (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1349.) Accordingly, "at least for most purposes '[t]here is no distinction in California law between property owned by the revocable trust and property owned by the settlor of such a revocable trust during the lifetime of the settlor.'" (Carolina Casualty Ins. Co. v. L.M. Ross Law Group, LLP (2010) 184 Cal.App.4th 196, 208.) Consistent with California's treatment of self-settled revocable trusts, bankruptcy law treats the assets of such trusts as property of the individual settlor's bankruptcy estate. (See In re Mohsen (Bankr. N.D.Cal., Mar. 12, 2014, No. 05-50662-ASW) 2014 Bankr. Lexis 1016, *6 ["'It is established law that a self-settled, revocable trust in which the debtor is also the beneficiary is property of a debtor's estate.'"].)
We requested and have reviewed Libs's supplemental brief on this issue, and we directed Bakker to address this issue in her reply brief, which we have also considered. (See Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1341, fn. 6.)
Thus, the distinction Bakker seeks to create in this conversion case between Libs, individually, and Libs, as trustee of the Libs Trust, is nothing more than a fiction. The fictional nature of this distinction is betrayed by the charging allegations in Bakker's own complaint. The allegations in Bakker II are all directed against Libs individually, and have nothing to do with Libs as trustee of the Libs Trust. For example, Bakker alleges she incurred costs when she "disassembled and removed the subject building from [Libs's] land . . . ." Bakker alleges damages "as to [Libs], for conversion of [p]roperty, the subject building only, resulting in loss of use and loss of profit . . . ." Significantly, Bakker's complaint contains no allegations that Libs did anything wrong while acting in the capacity of trustee of the Libs trust. Bakker does not allege, for example, that Libs committed any tort, or breached any contract, while acting in her capacity as trustee of the Libs Trust. Bakker's complaint uses the words "trust" and "trustee" only in the caption, and in the preamble to each cause of action where she identifies the defendants against whom the particular cause of action is alleged.
The capacity in which a party is sued must be determined by the content of the pleadings, not solely form the caption or title of a complaint. (See People v. Houghtaling (1857) 7 Cal. 348, 350 [where a defendant is described in the caption as "administrator" of a decedent's estate, but is not actually charged as administrator in the allegations themselves, and relief is not sought against the estate, the description is immaterial and will be disregarded].) Here, Bakker's characterization of Libs as "trustee of the Christine A. Libs trust" in the caption of the complaint in Bakker II is irrelevant and will be disregarded.
The undisputed evidence shows Libs was served with the summons and complaint in Bakker II during the pendency of her bankruptcy. Libs filed for bankruptcy in October 2011. Libs was served with the summons and complaint in January 2013. The bankruptcy court issued its discharge order in November 2015.
In her reply brief, Bakker contends service of process did not violate the automatic stay because service of the summons and complaint occurred before Bakker was given notice of Libs's bankruptcy filing. However, the automatic stay is triggered upon a debtor filing for bankruptcy. (In re Partida (9th Cir. 2017) 862 F.3d 909, 911.) The stay is self-executing. (In re Canter (9th Cir. 2002) 299 F.3d 1150, 1155, fn. 1.) The stay takes effect when the bankruptcy petition is filed without the necessity of notice to creditors. (In re Pro-Fit Holdings Ltd. (Bankr. C.D.Cal. 2008) 391 B.R. 850, 863.) Libs filed for bankruptcy in October 2011, well before the summons and complaint were served in January 2013.
Without citing to the record, Bakker also contends that upon learning of Libs's bankruptcy, she successfully obtained relief from stay. However, Bakker concedes the relief from stay was restricted and limited to allowing Bakker to enter Libs's property and take the disputed building. Bakker does not contend the bankruptcy court granted relief from stay to pursue this litigation for alleged conversion damages. In fact, later the bankruptcy court sanctioned Bakker $3,950 for violating the automatic stay by filing the instant complaint against Libs.
Moreover, the conversion cause of action alleged in Bakker II is the same conversion cause of action alleged prepetition below in Bakker I. The complaint in Bakker II admits this is the same cause of action as previously litigated, alleging, "The issue of conversion of [Bakker's] modular building, the subject of this action, was adjudicated in [Bakker's] favor" in Bakker I. (Italics added.)
Although the complaint in Bakker II also seeks damages Bakker allegedly incurred after Libs filed bankruptcy, those alleged damages are based on the same conversion cause of action previously litigated. See discussion post in part III.
The service of the Bakker II summons and complaint upon Libs during the pendency of Libs's bankruptcy violated the automatic stay arising from Libs's bankruptcy proceeding. (In re Leiba (Bankr. E.D.N.Y. 2015) 529 B.R. 501, 505-506 [service of summons and complaint violates automatic stay]; In re Kinsey (Bankr. D.Idaho 2006) 349 B.R. 48, 51-52 [same].) Accordingly, the service of process is void. (See Sundquist v. Bank of America, N.A. (Bankr. E.D.Cal. 2017) 566 B.R. 563, 585 ["any act done in violation of the automatic stay is void from the outset, not merely voidable"].) Because service of the summons and complaint upon Libs was void, the court correctly set aside Libs's default under section 473, subdivision (d).
III. THE COURT CORRECTLY SUSTAINED THE DEMURRER
A. The Standard of Review
"'On appeal from a judgment of dismissal entered after a demurrer has been sustained, this court reviews the complaint de novo to determine whether it states a cause of action. [Citation.] We assume the truth of all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.'" (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 813.) "We may [also] consider matters that are properly judicially noticed." (Ibid.) If all of the facts necessary to show an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may sustain a demurrer on res judicata grounds. (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.)
B. Bakker II Is Barred by Claim Preclusion
"Claim preclusion 'prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.'" (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings), italics omitted.) This doctrine "'rests upon the ground that the party to be affected . . . has litigated, or had the opportunity to litigate the same matter in a former action . . . and should not be permitted to litigate it again to the harassment and vexation of his [or her] opponent. Public policy and the interest of litigants alike require that there be an end to litigation.'" (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.)
Claim preclusion bars litigation not only of issues that were actually litigated in the prior proceeding, but also issues that could have been litigated in that proceeding. (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 975 (Busick).) "The fact that different forms of relief are sought in the two lawsuits is irrelevant, for if the rule were otherwise, 'litigation finally would end only when a party ran out of counsel whose knowledge and imagination could conceive of different theories of relief based upon the same factual background.'" (Interinsurance Exchange of the Auto. Club v. Superior Court (1989) 209 Cal.App.3d 177, 181-182.) Thus, if the matter raised in the second suit "'"'was within the scope of the [prior] action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact it was not in fact expressly pleaded or otherwise urged.'"'" (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 583-584, italics omitted.) "A predictable doctrine of res judicata benefits both the parties and the courts because it 'seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.'" (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897 (Mycogen).)
Without citation to authority, Bakker erroneously states claim preclusion applies only where "the specific issue or fact that was addressed and decided in the prior lawsuit" is identical to the issue being litigated in the second action.
"Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit." (DKN Holdings, supra, 61 Cal.4th at p. 824.) "If claim preclusion is established, it operates to bar relitigation of the claim altogether." (Ibid.)
In this case, Bakker I and Bakker II involve the same parties: Bakker is a plaintiff in each and Libs, named individually and as trustee of the Libs trust, is a defendant in each. The first case resulted in a final judgment on the merits that was affirmed on appeal. (Bakker I, supra, 2011 Cal.App.Unpub. Lexis 5719.) Accordingly, claim preclusion applies if Bakker II involves the same cause of action that was, or could have been, litigated in the earlier case.
In applying the doctrine of res judicata, the phrase "cause of action" has a precise and particular meaning: The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory advanced. (See Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.)
The conversion claim Bakker litigated in Bakker I and the conversion claim she alleges here in Bakker II involve the same cause of action. In both, Bakker seeks redress for the invasion of her primary right to ownership and possession of the modular building and its contents. Bakker's complaint concedes this point by alleging, "The issue of conversion of [Bakker's] modular building, the subject of this action, was adjudicated in [Bakker's favor] . . . in a prior action."
Nevertheless, Bakker contends claim preclusion does not apply because she seeks a different remedy for conversion in Bakker II. However, the fact that Bakker now seeks additional or different remedies for the same harm does not create a new primary right or a new cause of action. (Hi-Desert Medical Center v. Douglas (2015) 239 Cal.App.4th 717, 734.) "The same primary right is at stake in both cases." (Ibid.)
Bakker also contends the court erred in applying claim preclusion because the conversion claim she asserts here did not exist until after the trial court's judgment in Bakker I. Bakker asserts that in the prior action, the court "could not determine the value of the building" and, therefore, "the continued conversion of Bakker's building after the date of the previous judgment" constitutes a "new action for conversion, this action." She contends this new cause of action arose from Libs's "refusal to surrender possession of the building to Bakker after a court ruled she had converted the subject building." She seeks as damages the costs she incurred in removing the building in 2012 and loss of use from the period 2008 to the present.
Bakker's argument fails because it is based on a misunderstanding of the judgment. A person who has been deprived of possession of personal property amounting to a conversion has an election of remedies. He or she may bring either an action for recovery of the specific property, with damages for its detention—or, he or she may seek damages based on the value of the property, "in effect forcing the defendant to buy it." (5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, §§ 810-811, p. 1024.)
In Bakker I, Bakker elected the forced-sale measure of damages by seeking "the reasonable value of the converted property plus interest from the date of the conversion." Indeed, Bakker's brief concedes this point, stating that in Bakker I she "presented evidence in support of her request for the [c]ourt to apply the 'forced sale' method for each of the converted items."
However, here on appeal, Bakker inconsistently contends she has a new cause of action for conversion because the trial court in Bakker I "did not apply the 'forced sale' method and could not determine the value of the building to award damages for the building to Bakker." (Italics added.)
Bakker is mistaken. The trial court in Bakker I determined the value of the building was zero. When Bakker challenged that determination on appeal in Bakker I, we rejected her argument and affirmed the award of zero damages for the building, stating:
"[T]he trial court in this case determined the structure's value from conflicting evidence. . . . [¶] As we have explained, the trial court was entitled to rely on all facts and circumstances in determining the converted structure's value as of April 2008 . . . . [¶] Given the conflicting evidence on the question of valuation, our task on appeal would normally be to decide whether substantial evidence supports the trial court's findings that the building had zero value. . . . Even
if Rogers's opinion of value [$59,000] was competent evidence, it was countered by other evidence from which the court reasonably inferred that a willing buyer would find no value to the structure whose use required removal and reassembly at a cost exceeding the salvage value of its parts."
Thus, Bakker has already litigated her right to damages from Libs's conversion of the subject property. Having fully litigated her conversion case based on a forced-sale measure of damages in Bakker I, claim preclusion principles preclude Bakker from relitigating that same cause of action here, using a different measure of damages based on an alternative theory that she retained ownership. (Busick, supra, 7 Cal.3d at p. 973 [when a plaintiff has two mutually exclusive remedies, and judgment is rendered giving one of the remedies, plaintiff cannot thereafter maintain an action for the other]; Mycogen, supra, 28 Cal.4th at p. 897 [res judicata precludes piecemeal litigation by splitting a single cause of action and relitigating it on a different legal theory or for different relief].)
Bakker's allegations that the bankruptcy court allowed her to repossess the building in 2012, and that she incurred expenses in doing so, do not change this analysis. The res judicata effect of Bakker I is determined solely by the final judgment and record in that case. --------
DISPOSITION
The judgment is affirmed. Libs is entitled to costs incurred on appeal.
NARES, Acting P. J. WE CONCUR: HALLER, J. AARON, J.