Du Toit v. Englund CA4/3

Filed 7/18/16 Du Toit v. Englund 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MONIQUE M. DU TOIT,

Plaintiff and Appellant, G051872

v. (Super. Ct. No. 30-2014-00749480)

ROBERT BARTON ENGLUND, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Deborah C. Servino, Judge. Affirmed. Monique M. Du Toit, in pro. per.; and Larned B. Fowler for Plaintiff and Appellant. Wellman & Warren, Scott W. Wellman, Stuart M. Miller and Anabella Q. Bonfa for Defendant and Respondent. * * *

INTRODUCTION In a prior lawsuit, Monique M. Du Toit (Plaintiff) asserted against Robert Barton Englund (Defendant) various causes of action arising out of or related to a written partnership agreement to which she was not a named party. The trial court sustained without leave to amend demurrers to the first amended complaint in the prior lawsuit on the ground Plaintiff was not a third party beneficiary of the partnership agreement. Plaintiff did not appeal from the subsequent judgment of dismissal. In the present lawsuit, Plaintiff asserted against Defendant various causes of action arising out of or related to the same partnership agreement that was the subject of the prior lawsuit. The trial court sustained Defendant’s demurrer without leave to amend on the ground Plaintiff’s causes of action were barred by res judicata or collateral estoppel. Exercising de novo review (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865), we affirm. ALLEGATIONS AND PROCEDURAL HISTORY I. The Prior Lawsuit Plaintiff’s first amended complaint in the prior lawsuit alleged: In 1994, Defendant and Theodore D. Phillips entered into an oral contract (the 1994 Oral Contract) by which they purchased a house on Bluebird Canyon Drive in Laguna Beach (the Bluebird Canyon House). Title to the Bluebird Canyon House was taken in Defendant’s name only. Phillips moved into the Bluebird Canyon House. Phillips and Plaintiff wed in 1998. In February 2001, Defendant and Phillips entered into a written contract (the 2001 Contract) by which they agreed (1) they had purchased the Bluebird Canyon House in partnership in 1995, (2) Phillips owed Defendant $70,000, and (3) if Defendant died, the Bluebird Canyon House would “be deeded” to Phillips. In April 2003, Defendant and Phillips entered into a second written contract (the 2003 Contract) “to define the contract between [them].” The 2003 Contract