Boisvert v. DeGutz CA1/2

Filed 8/26/16 Boisvert v. DeGutz CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A143891 v. DONALD DEGUTZ, (Alameda County Super. Ct. No. RG11559883) Defendant and Respondent.

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 We extensively recounted the events of this prior action in an unpublished opinion, De Gutz v. Boisvert, Case No. A126839, issued on January 28,

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2013.1 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