Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Diego County No. GIC821066, Charles R. Hayes, Judge.
HALLER, J.
In this appeal, Willie Horton challenges the trial court's dismissal of his action filed against the Commission on Professional Competence (Commission), the San Diego Unified School District (District), and various individuals. The action challenged his termination from the District in 2001. Prior to filing the instant action, Horton had previously filed a state action and a federal action challenging the same termination at issue here. Both actions were resolved by a final judgment on the merits or its equivalent. Applying res judicata principles, the trial court sustained the defendants' demurrers without leave to amend and entered a judgment of dismissal in their favor. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal challenges the sustaining of a demurrer without leave to amend, our factual presentation is based on the allegations in the complaint and matters that may be judicially noticed. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.)
Horton was a principal at a District high school. In 2000, the District decided to terminate him. Horton exercised his right to request a hearing before the Commission to challenge the dismissal decision. In March 2001, the Commission upheld the District's decision to terminate him.
In response, Horton filed actions in both the federal and state courts challenging his termination. In December 2000, he filed an action in federal district court against the District and various individuals, alleging civil rights violations, discrimination, and tort causes of action (the First Federal Action). In June 2001, Horton filed a petition for writ of mandate in superior court challenging the Commission's ruling upholding the District's termination decision (the First State Action). In the First State Action, Horton named the District as the respondent and the District's former superintendent Alan Bersin as the real party in interest. The First State Action challenged his termination on both procedural and substantive grounds, including allegations concerning the procedures by which the District voted to terminate him, evidentiary rulings during the Commission's hearing, disqualification of a proposed Commission panel member, alleged false testimony and improper ex parte communications, and the evidentiary support for the Commission's findings.
In May 2002, the superior court denied the mandamus petition in the First State Action. In October 2002, the First Federal Action was settled and dismissed with prejudice. The settlement agreement included a provision stating the agreement was a "compromise of all disputed federal and state claims between the parties," except that Horton could continue to prosecute the First State Action through the appellate process. Further, the settlement agreement contained a release clause providing that the agreement released all known and unknown claims arising out of, or relating to, the federal action.
In March 2003, we affirmed the superior court's denial of the writ petition in the First State Action. (Horton v. San Diego Unified School District (March 10, 2003) D039749 [nonpub. opn.].) In July 2003, the California Supreme Court denied Horton's petition for review in the First State Action.
In October 2003, Horton filed a second complaint in federal district court challenging his termination on procedural and substantive grounds (the Second Federal Action). This pleading set forth a variety of theories, including a challenge to the Commission's jurisdiction based on a prior Commission ruling, and allegations of obstruction of justice, bias, due process violations, civil rights violations, fraud, discrimination, and conversion. The defendants in the Second Federal Action included the District and some of the individuals who had been named in the First Federal Action, as well as defendants named for the first time in any action (i.e., the Commission and several new individuals).
In November 2003, Horton, representing himself, filed a complaint in superior court, again challenging his termination on procedural and substantive grounds (the Second State Action). The complaint in this action set forth theories similar to those in the Second Federal Action. Further, akin to the Second Federal Action, the complaint named as defendants the District and some of the individuals who had been named in the First Federal Action, and also added the Commission and several additional individuals. The complaint alleges that each defendant was "the agent, employee, representing partner, or joint venturer of the remaining defendants and was acting within and without the course and scope of that relationship." In March 2004, the superior court stayed the Second State Action, pending resolution of the Second Federal Action. The Second State Action is currently before us for review.
In April 2004, the federal district court ruled that the Second Federal Action was barred under principles of res judicata based on the First State Action and the First Federal Action. The district court found that in the Second Federal Action Horton was challenging the same termination that had been finally resolved in the both the First State Action and the First Federal Action. The district court noted that all the actions were based on the same allegations that Horton "was improperly terminated and was denied a fair and unbiased review process." (Horton v. Ahler (April 4, 2004) Case No. 03-CV-2007.) The district court set forth the procedural history showing that the First State Action resulted in a final judgment on the merits, and concluded the res judicata bar operated because the action involved the same injury and hence the same cause of action. The district court reached the same conclusion based on the First Federal Action, stating that the voluntary dismissal with prejudice in that action operated as an adjudication on the merits which had the same res judicata effect as a judgment after trial. (Ibid.)
In April 2005, the Ninth Circuit Court of Appeals affirmed the res judicata ruling in the Second Federal Action. In May 2006, Horton's petition for writ of certiorari was denied by the United States Supreme Court.
After completion of the federal proceedings, the Commission and District filed demurrers to the complaint in the Second State Action. In February 2007, the trial court sustained the demurrers without leave to amend, finding that the First State Action, and the First and Second Federal Actions, asserted the same injury. The trial court entered a judgment of dismissal in favor of defendants. Horton challenges this judgment in the appeal now before us.
The Commission filed a motion to dismiss this appeal on the basis that Horton's notice of appeal states that it is from the trial court's denial of his motion to vacate the judgment, rather than from the judgment itself. We exercise our discretion to liberally construe the notice of appeal, and deem it to be an appeal from the judgment. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20-21.) Accordingly, we deny the Commission's motion to dismiss the appeal.
DISCUSSION
When reviewing the sustaining of a demurrer without leave to amend, we exercise our independent judgment to determine whether the complaint states a cause of action. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) We assume the complaint's properly pleaded or implied factual allegations are true, and also consider judicially noticeable matters. (Campbell v. Regents of University of California, supra, 35 Cal.4th at p. 320.)
The doctrine of res judicata "is intended to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation." (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 829.) The doctrine precludes parties or their privies from relitigating the same cause of action finally resolved in a prior proceeding. (Id. at p. 828.) To apply res judicata, (1) the cause of action raised in the present proceeding must be the same as the cause of action in the prior proceeding; (2) the prior proceeding must have resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted must have been a party or in privity with a party to the prior proceeding. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 531; Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.)
The identity of the cause of action for res judicata is determined under the primary rights theory. The invasion of one primary right gives rise to a single cause of action. (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) "[A] cause of action consists of 1) a primary right possessed by the plaintiff, 2) a corresponding primary duty devolving upon the defendant, and 3) a delict or wrong done by the defendant which consists in a breach of such primary right and duty. [Citation.] Thus, two actions constitute a single cause of action if they both affect the same primary right." (Gamble v. General Foods Corp. (1991) 229 Cal.App.3d 893, 898.)
In determining whether there is a single cause of action, the significant factor is the harm suffered, as opposed to the particular theory asserted by the litigant. (Slater v. Blackwood, supra, 15 Cal.3d at p. 795.) "Even when there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. 'Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.' " (Ibid., italics omitted.) Res judicata precludes a party from engaging in piecemeal litigation by splitting a single cause of action or relitigating the same cause of action on a different theory or for different relief. (Noble v. Draper (2008) 160 Cal.App.4th 1, 11.) All claims based on the same cause of action that can be raised in a proceeding must be raised; if not brought initially they may not be brought at a later date. (Id. at pp. 11-12; see Le Parc Community Assn. v. Workers' Comp. Appeals Bd. (2003) 110 Cal.App.4th 1161, 1170.) The doctrine "rests on the principle that a plaintiff is entitled to only one fair opportunity to litigate a given cause of action. He cannot 'split' it by reserving a portion for later adjudication; nor can he expect to be given a second opportunity to cure legal or factual deficiencies that led to his defeat in a prior suit." (Ferraro v. Camarlinghi, supra, 161 Cal.App.4th at p. 531.) This rule applies to give res judicata effect to federal court actions as well as to state court actions that include an administrative mandamus petition. (Gamble v. General Foods Corp., supra, 229 Cal.App.3d at p. 899; Takahashi v. Board of Education (1988)202 Cal.App.3d 1464, 1470-1471, 1474; see Mata v. City of Los Angeles (1993) 20 Cal.App.4th 141, 147-148, 150-151.)
In 2000 and 2001, respectively, Horton filed the First Federal Action and the First State Action against the District and several individuals. These actions challenged the same termination under a variety of legal theories, and were conclusively resolved by a final judgment on the merits or its equivalent. The First Federal Action was dismissed with prejudice pursuant to a settlement agreement. A dismissal with prejudice arising from a settlement is deemed to be a judgment on the merits against the plaintiff, which bars a subsequent action on the same cause of action. (Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 67, 69; Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1330-1331.) Similarly, the First State Action resulted in a final judgment on the merits after a proceeding before the superior court, an appellate challenge before this court, and a denial of review by the California Supreme Court. When presented with yet another action challenging the same termination, the federal district court reviewed these two prior proceedings and concluded the new action was barred under res judicata principles.
The Second State Action now before us once again challenges Horton's termination. The courts have repeatedly found that when an employee sues because he or she has been terminated, there is a single cause of action based on the single primary right to continued employment. (See, e.g., Swartzendruber v. City of San Diego (1992) 3 Cal.App.4th 896, 908-909, overruled on other grounds in Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 72; Takahashi v. Board of Education, supra, 202 Cal.App.3d at p. 1476; Gamble v. General Foods Corp., supra, 229 Cal.App.3d at p. 901; see also Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 648-649.) If the claims are based on the termination and were, or could have been, presented in the prior judicial proceedings, res judicata will normally bar the claims, including claims sounding in tort, discrimination, or violation of due process. (Takahashi, supra, 202 Cal.App.3d at pp. 1476-1485; Gamble v. General Foods Corp., supra, 229 Cal.App.3d at pp. 899-901;see Johnson v. City of Loma Linda, supra, 24 Cal.4th at pp. 69-78.)
Because the claims in Horton's current and prior lawsuits are all based on his right to continued employment with the District, they all involve the same cause of action, regardless of the various legal theories asserted. Accordingly, the resolutions from the prior proceedings preclude Horton from again pursuing a lawsuit based on this same primary right.
Contrary to Horton's assertion, the fact that the instant lawsuit includes defendants that were not named in the First State Action and the First Federal Action (i.e., the Commission and several newly-named individuals) does not obviate the res judicata bar so as to permit this lawsuit to go forward as to these new defendants. Res judicata applies to parties and their privies. In evaluating who is in privity to a party, "[t]he emphasis is not on a concept of identity of parties, but on the practical situation. The question is whether the non-party is sufficiently close to the original case to afford application of the principle of preclusion." (People ex rel. State of Cal. v. Drinkhouse (1970) 4 Cal.App.3d 931, 937.) "The question of who is in privity with a party to an action varies with the circumstances of each case. Generally speaking, it connotes a person who is so identified in interest with another that he represents the same legal right. The interests of the two must be harmonious and not in conflict." (Carden v. Otto (1974) 37 Cal.App.3d 887, 892; Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1682-1684; see Mooney v. Caspari (2006) 138 Cal.App.4th 704, 718.)
The District, the Commission, and the individual defendants were involved in the termination process. Their potential liability turned on the common issue of whether Horton's termination was procedurally and substantively proper. Various procedural challenges to the Commission's actions were litigated in the First State Action even though the Commission was not a party to that action. (See Horton v. San Diego Unified School District, supra, D039749.) The individuals involved in the termination process were part and parcel of the termination. In the case now before us, there are no allegations of injury distinct from the conduct associated with the District's termination decision and the Commission's review thereof. Further, this Second State Action does not involve allegations indicating that the potential liability of any newly-named defendant for this injury is distinct from the liability asserted against the defendants in the First Federal and State Actions. Under these circumstances, the concept of a privity relationship between the District, the Commission, and the individual defendants properly applies so as to make the res judicata bar available to the newly named defendants.
The complaint in the Second State Action before us does not specify the precise roles of all the individual defendants. However, because the complaint generally alleges that all defendants were agents or employees of each other, and because there are no allegations of injury distinct from the termination, we assume the individual defendants are included in the complaint because they played a role in the termination process.
Moreover, even assuming arguendo that the Commission and the newly named individual defendants were not in privity with the defendants in the First State Action and the First Federal Action, they may properly assert res judicata as nonparties. Although as a matter of due process the party against whom the res judicata doctrine is asserted must always be a party or in privity with a party to the previous proceeding, the party who is raising the doctrine to preclude relitigation of a previously litigated matter need not always be a party or in privity to a party. (See Bernhard v. Bank of America (1942) 19 Cal.2d 807, 812; Takahashi v. Board of Education, supra, 202 Cal.App.3d at p. 1477.) For example, the courts have fashioned the rule that when a defendant's liability is merely derivative of the liability of another party resolved in a prior proceeding, it is not necessary for the defendant to have been a party to the prior action to assert a claim preclusion defense. (Brinton v. Pension Services, Inc., supra, 76 Cal.App.4th at pp. 557-558; Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 578-579.) This nonmutuality rule is premised on the recognition "that it would be unjust to permit one who has had his day in court to reopen identical issues by merely switching adversaries." (Bernhard, supra, 19 Cal.2d at p. 813.)
Horton and the District were parties to the First State Action and the First Federal Action where the claims arising from Horton's termination were resolved. Horton's injury arose from the District's decision to terminate him. The Commission's review was derived from the District's termination decision. The potential liability of the individual defendants turned on their participation in this termination process. Because Horton is bound by the prior resolutions of his challenge to his termination, he cannot again challenge this same termination in another lawsuit even though he has named different defendants. (See Takahashi v. Board of Education, supra, 202 Cal.App.3d at p. 1477.)
To support his argument against application of the res judicata bar, Horton contends that, through no fault of his own, he was prevented from fully litigating in the First State Action an issue relating to the Commission's jurisdiction. Assuming arguendo this is accurate, Horton's jurisdictional argument fails on the merits as a matter of law. Thus, this provides no basis to allow Horton to proceed with the Second State Action.
Simply stated, Horton claims that the Commission did not have the authority to proceed with the hearing resulting in his termination because of a prior Commission ruling that had denied the District's motion for a continuance and dismissed the District's termination charges for failure to commence a hearing in timely fashion. Thereafter, the District refiled the charges, and the Commission subsequently ruled on them. Horton contends the Commission's first ruling dismissing the charges had res judicata effect so that the Commission had no authority to hear the new charges.
Horton's contention is unavailing because the Commission's dismissal of the charges for lack of a timely hearing does not equate with a judgment on the merits of the termination charges. Because there was no adjudication on the merits, Horton's claim that the Commission had no authority to proceed with the hearing fails. (See 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 322, p. 874; Koch v. Rodlin Enterprises (1990) 223 Cal.App.3d 1591, 1596; Nichols v. Canoga Industries (1978) 83 Cal.App.3d 956, 966-967; cf. People v. Wilkes (1960) 177 Cal.App.2d 691, 697 [res judicata does not bar refiling of criminal charges after dismissal for failure to commence trial within 60 days].)
Contrary to Horton's contention, Government Code section 11524, subdivision (c), does not create a res judicata bar or deprive the Commission of jurisdiction. This code section provides that if a party does not seek judicial review of an administrative law judge's denial of a continuance within 10 days of the denial, the party shall "be barred from judicial review thereof as a matter of jurisdiction." (Gov. Code, § 11524, subd. (c).) Although the section precludes judicial review from the denial of a continuance absent a timely request, it does not preclude the refiling of charges and a subsequent hearing, as occurred here.
Horton had his day in court to challenge his termination. The trial court properly sustained the defendants' demurrers without leave to amend and dismissed the action.
After completion of briefing for this appeal, Horton filed a request for judicial notice of a recent United States Supreme Court decision which addresses whether a particular civil rights statute applies to retaliation claims. (CBOCS West, Inc. v. Humphries (May 27, 2008) 553 U.S. ___ [128 S.Ct. 1951].) There is nothing in the decision that concerns the applicability of the res judicata bar, and thus it is not relevant to resolution of Horton's case.
DISPOSITION
The judgment is affirmed. Appellant to pay respondents' costs on appeal.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.