Danako-Vostok v. Zdjanskaya

Filed 2/23/06 Danako-Vostok v. Zdjanskaya CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Steven L. Perk, Judge. Affirmed in part and reversed and remanded in part.

Law Offices of Kirk McIntosh, Brian R. Meek and Kirk S. McIntosh for Plaintiff and Appellant.

Law Offices of Mark Rabinovich and Mark Rabinovich for Defendant and Respondent Khalida Zdjanskaya.

No appearance for Defendant and Respondent Iouri Zdjanski.

Plaintiff Danako-Vostok Corporation appeals from a judgment on the pleadings in favor of defendant Khalida Zdjanskaya (defendant) and Iouri Zdjanski (Zdjanski). (Zdjanski, a defendant in the action, did not file a respondent's brief). Plaintiff contends the court erred when it ruled the judgment in a prior action barred the current action based on res judicata. We disagree as to three of the five causes of action and affirm as to those. We reverse and remand as to the causes of action for fraudulent conveyance and conspiracy to fraudulently convey because they were not decided by the judgment in the prior action.

FACTS AND PROCEDURAL BACKGROUND

This is a factually and procedurally complicated case; the record and the parties' arguments and explanations of events here and below are not always clear. At the time of at least some of the operative events, defendant was married to Zdjanski, although they were in the process of dissolving their marriage. Zdjanski was an officer of plaintiff until he was terminated from employment in early October 1999.

The underlying dispute involves ownership of certain real property. Zdjanski purchased the property in 1997. Funds for the purchase came from plaintiff; plaintiff contends Zdjanski misappropriated the funds. A year and a half later, Zdjanski quitclaimed the property back to plaintiff.

In October 1999, shortly after Zdjanski was terminated, plaintiff filed a complaint with 27 causes of action against Zdjanski and defendant seeking a variety of relief (first case). The majority of the claims were to recover monies due on various promissory notes signed by Zdjanski. The twenty-third cause of action, against defendant only, denominated a quiet title claim, alleged she had wrongfully recorded a lis pendens against the property.

After the complaint was filed, in early October 2000 Zdjanski signed a quitclaim deed, purportedly on behalf of plaintiff, transferring title to the property from plaintiff to himself and defendant. A few days later, a default judgment on a majority of the promissory note causes of action was entered against Zdjanski. In June 2001, Zdjanski and defendant executed a grant deed transferring the property from themselves to defendant as her separate property. In September 2001 a second default judgment on four additional note causes of action was entered against Zdjanski. All other causes of action against Zdjanski were dismissed without prejudice as part of the second judgment.

In March 2003, plaintiff and defendant proceeded to trial on the quiet title, trespass, conversion, breach of fiduciary duty, and declaratory relief causes of action alleged against defendant. During plaintiff's opening statement, counsel stated that he would be concentrating on the quiet title claim â€