Bucur v. Ahmad
| Decision Date | 26 January 2016 |
| Docket Number | D068689 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Viorel BUCUR et al., Plaintiffs and Appellants, v. Mirza Shamim AHMAD, Defendant and Respondent. |
George A. Saba, for Plaintiffs and Appellants.
Littler Mendelson and Margaret H. Gillespie, for Defendant and Respondent.
Prager, J.* Viorel Bucur (Bucur) and Lacramiora Bucur, husband and wife (together, Appellants), owned two long distance trucking companies that contracted with Fedex Ground Package System, Inc. (FedEx) to provide linehaul (long distance trucking) services. Mirza Shamim Ahmad was employed by FedEx as a senior linehaul manager.1
This case represents Appellants' fifth unsuccessful attempt to recoup damages arising out of FedEx's termination of their linehaul contracts. They appeal from a superior court judgment granting judgment on the pleadings and awarding sanctions under Code of Civil Procedure section 128.72 against them and their attorney. We affirm and grant Ahmad's motion for additional section 128.7 sanctions on appeal against Appellants and their trial counsel.
FACTUAL AND PROCEDURAL BACKGROUND3
In 2001 and 2005, Bucur entered into two linehaul contracts with FedEx; the contracts had a fair market value of $1.8 million. In 2010, FedEx decided to terminate the contracts with Bucur because of his poor safety performance, but in July 2010, Bucur agreed to sell the FedEx contracts to Wasarhelyi for $500,000. Wasarhelyi later sold one of the contracts to Aldi Ujkaj for $800,000.
In April 2011, Wasarhelyi filed a complaint for breach of contract against Bucur and his related companies, alleging that they had refused to tender various assets to him as required by his purchase of the linehaul contracts, had interfered with his operation of the linehaul contracts, and had wrongfully diverted payments from FedEx that were owed to him. Appellants in their first amended cross complaint (FACC) sued Wasarhelyi, Ujkaj, Rodriguez Transport (Rodriguez) and others for breach of oral contract, fraud, conversion, rescission of all of the linehaul contract sales agreements, and declaratory relief, alleging that Bucur and Wasarhelyi had orally agreed that Bucur would pay Wasarhelyi two cents per mile to pose as the holder of the hauling contracts to satisfy FedEx's safety concerns and that Ujkaj and Rodriguez bought the hauling contracts from Wasarhelyi with full knowledge of the litigation between him and Bucur. Bucur did not allege that FedEx was responsible for Wasarhelyi's diversion of its revenue, and Appellants admitted in their first amended complaint that they "are not seeking relief from FedEx" but only named FedEx as a necessary party to their rescission claim.
The parties ultimately stipulated to bifurcate the cross-claims against Ujkaj and, after Wasarhelyi attained a judgment confirming his interest in the FedEx linehaul contracts, Bucur purported to dismiss the cross-complaint against Ujkaj and Rodriguez without prejudice.
While Bucur I was ongoing, Appellants initiated a second lawsuit in Riverside County Superior Court against FedEx, Ahmad, and Wasarhelyi, alleging that FedEx and Ahmad wrongfully terminated the linehaul contracts and forced Appellants to sell the linehaul contracts to Wasarhelyi. FedEx moved to compel arbitration under the terms of the linehaul contracts. Upon Appellants' stipulation, the court granted the motion. In October 2013, Appellants initiated arbitration proceedings on the claims in their operative complaint. On April 14, 2015, the arbitrator granted a motion to dismiss brought by FedEx and Ahmad.
The same day final judgment was entered in Bucur I and while Bucur II was still pending in Riverside County Superior Court, Bucur filed a complaint, in propria persona, against Ujkaj and Rodriguez, asserting causes of action for intentional and negligent interference with contract, intentional and negligent interference with prospective economic advantage and conversion based on allegations that those defendants knew about and participated in the fraud perpetrated by Wasarhelyi relating to the FedEx linehaul contracts. Appellants did not name FedEx or Ahmad as defendants.
On demurrer, the trial court determined Appellants' complaint was barred by collateral estoppel.
On Bucur's appeal, Division Two of our court concluded that the issues raised in Bucur's complaint were identical to those asserted (unsuccessfully) in Bucur I, to wit, that he was the rightful owner of the linehaul contracts and that the rejection of that claim by the court and the jury in Bucur I operated to collaterally estop Bucur's claims in Bucur III because he would have had to establish that he had a recognized interest in the FedEx contracts to prevail against Ujkaj and Rodriguez on his claims for intentional interference with contract, intentional and negligent interference with prospective economic advantage, and conversion.
In April 2013, while Bucur I and Bucur II were pending and days before the filing of the lawsuit in Bucur III, Bucur filed another lawsuit in Riverside County Superior Court related to the linehaul contracts, Bucur IV . Bucur sued Wasarhelyi, his attorneys, and Bucur's former attorney in Bucur I, for damages based on the loss of the linehaul contracts. Wasarhelyi and his attorneys moved to strike the complaint as barred by Bucur I, and the court granted their motions. At trial on Bucur's remaining claims against his former attorney, Bucur repeatedly testified inconsistently with his previous trial testimony in Bucur I and was admonished several times by the judge on the possible penalties for perjury. Bucur testified inconsistently on what he sold Wasarhelyi, linehaul contracts or trucks. Bucur attempted to explain the inconsistencies by testifying in Bucur IV that he testified falsely in Bucur I on advice of his former counsel. After Bucur lost at trial, the court imposed section 128.7 sanctions of $2,120 against his attorney, George Saba.
In January 2014, Appellants filed the current action in San Bernardino County Superior Court, claiming that Wasarhelyi (with the help of his wife) and FedEx (through Ahmad) committed fraud and breach of contract and that FedEx (through Ahmad) wrongfully converted the linehaul contracts, and wrongfully allowed Wasarhelyi to sell the linehaul contracts to Ujkaj and Rodriguez. After receiving the complaint Ahmad's counsel wrote to Appellants' counsel, George Saba, requesting that he withdraw it. Although Ahmad served Appellants with a motion for sanctions pursuant to section 128.7 and arranged to have a motion for judgment on the pleadings filed the next day, Saba entered Ahmad's default and later refused to stipulate to set it aside. The court thereafter granted Ahmad's request to set aside the default and unbeknownst to Ahmad, Appellants filed a first amended complaint adding a new cause of action for breach of written contract against him, alleging that he had entered into a written agreement allowing Appellants to sell their linehaul contracts to a third party of their choosing, and a new cause of action for defamation, as well as other causes of action arising out of the loss of the linehaul contracts.
Ahmad filed a supplemental motion for sanctions pursuant to section 128.7 to address the filing of the first amended complaint.
Ahmad moved for judgment on the pleadings on Appellants' first amended complaint. The court granted the motion on the grounds that (1) the claims in the first amended complaint arose out of the same facts as Bucur I and were based on the same primary right, and (2) Appellants' claims were barred by principles of res judicata and collateral estoppel, the applicable statutes of limitation and judicial estoppel because their verified pleadings and testimony in Bucur I were inconsistent with their pleadings in this case, rendering them a sham intended to avoid the judgment on the pleadings.
The court found good cause to award section 128.7 sanctions of $16,648.75 against Appellants because their pleadings were not factually supported, were presented for an improper purpose, and were not withdrawn during the safe harbor periods.4
In November 2014 the trial court entered its final order, which included specific findings that Appellants' complaint and first amended complaint were not legally supported and were presented for an improper purpose, and granted monetary sanctions of $16,648.75 against Appellants and their attorney Saba. In December 2014 the court entered judgment of dismissal.
DISCUSSION
Appellants contend that the doctrine of judicial admissions does not apply because of the incompetence and fraud of Bucur's former attorney, that the doctrine of res judicata does not apply to issues which were not litigated but might have been litigated, and applies only to causes of action actually litigated to judgment in Bucur I, breach of oral contract and conversion. We reject these contentions.
Judgment on the pleadings is similar to a demurrer and is properly granted when the "complaint does not state facts sufficient to constitute a cause of action against [the] defendant." (§ 438, subd. (c)(1)(B)(ii); Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254, 2 Cal.Rptr.3d 739.) We independently review the superior court's ruling on a motion for judgment on the pleadings to determine whether the complaint states a cause of action. In so doing, we must accept the factual allegations of the pleadings as true and construe them liberally. (Rolfe v. California Transportation Com . (2002) 104 Cal.App.4th 239, 242–243, 127 Cal.Rptr.2d 871.) If a judgment on the pleadings is correct on any theory of law applicable to the case, we will affirm it regardless of the considerations used by the superior court to reach its conclusion. (Schabarum v. California...
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