Second District, Division 8 Splits on Application of the Sham Pleading Rule.
Dome Entertainment Center, Inc. v. Kim, Case No. B196220 (2d Dist., Div. 8 Apr. 7, 2009) (unpublished) has an interesting discussion about the application of judicial admission and sham pleading rules in a superseded pleading context involving a litigant who claimed she was a tenant in some situations and was not a tenant in others. Ultimately, the Second District, Division 8 affirmed, by a 2-1 vote, a $3.8 million jury verdict in favor of plaintiff landlord and against defendant tenant.
Plaintiff also was awarded $1,872,453 in attorney’s fees by the lower court after prevailing in the jury trial, presumably based on Civil Code section 1717. Because no independent challenge was made to the fee award, the refusal to upset the merits judgment meant the fee award—eureka!—was also upheld.
BLOG OBSERVATION #1—Even the dissenting justice, although disagreeing with the majority’s application of the sham pleading rule, recognized that the inconsistent prior pleadings by tenant gave plaintiff “ample ammunition” for impeachment based on the fact that the inconsistencies would be admitted as evidentiary admissions against interest.
BLOG OBSERVATION #2—We note that our friend Benjamin Shatz was one of the attorneys representing winning plaintiff on appeal. Congratulations. (Mr. Shatz contributes regularly to the Los Angeles County Bar Association’s enBanc blog.)