Opinion
B318081
07-20-2023
FERGUS LEWIS, Plaintiff and Appellant, v. LOS ANGELES COUNTY METROPOLITAN TRANSIT AUTHORITY, Defendant and Respondent.
Andrew E. Smyth for Plaintiff and Appellant. Kessel & Megrabyan, Elizabeth M. Kessel, and Armineh Megrabyan for Defendant and Respondent Los Angeles County Metropolitan Transportation Authority.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21STCV03968, Elaine Lu, Judge. Affirmed.
Andrew E. Smyth for Plaintiff and Appellant.
Kessel & Megrabyan, Elizabeth M. Kessel, and Armineh Megrabyan for Defendant and Respondent Los Angeles County Metropolitan Transportation Authority.
ADAMS, J.
This is plaintiff Fergus Lewis's third suit against defendant Los Angeles County Metropolitan Transportation Authority (MTA) for damages allegedly arising out of Lewis's 2014 termination by the MTA. The first action, for wrongful termination and whistleblower retaliation, was dismissed because Lewis failed to timely file a government claim with the County of Los Angeles. The second action, filed in federal district court, was dismissed for lack of federal subject matter jurisdiction because it was a de facto appeal of the state court judgment and did not adequately allege extrinsic fraud. The third action, for extrinsic fraud, alleges that the MTA prevented Lewis from pursuing his wrongful termination/whistleblower retaliation case by making false statements to the court in connection with a demurrer.
The present appeal is from an order granting a special motion to strike the complaint in the third action pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16). Lewis concedes that his complaint is based on conduct protected by the anti-SLAPP statute, but he urges that the trial court erred by granting the motion because he established a probability of prevailing. We conclude that Lewis's extrinsic fraud claim is identical to that already adjudicated by the district court, and thus it is barred by issue preclusion. We therefore affirm the order granting the special motion to strike.
All subsequent undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
I. Wrongful Termination/Whistleblower Retaliation Action ( Lewis I )
Lewis began working as a bus driver for the MTA in August 1990. On March 12, 2014, Lewis was directed to drive a bus that did not contain an equipment bag. Lewis refused and told a supervisor an order to do so was illegal. An argument ensued, and security and police were called. Lewis was placed on administrative leave the same day and was terminated in May 2014.
Lewis filed a worker's compensation claim in June 2014 for injuries he allegedly suffered as a result of the March 2014 incident. Nine months later, in March 2015, Lewis filed a claim with the County of Los Angeles under the Government Claims Act (Gov. Code, § 810 et seq.) asserting retaliation and wrongful termination. The county rejected his claim as untimely because it was filed more than six months after his termination.
Lewis filed a wrongful termination and whistleblower retaliation action in superior court in May 2015 (Lewis I). The MTA demurred, asserting the action was barred because Lewis had not filed a government claim within six months of his termination and had failed to exhaust all internal administrative remedies. The superior court sustained the demurrer with leave to amend. Lewis then filed an amended complaint alleging that the filing of the workers' compensation action equitably tolled the time to file the government claim. The MTA again demurred, contending the workers' compensation claim made no mention of Lewis's termination, whistleblowing, or retaliation, and thus it did not put the MTA on notice of Lewis's retaliation/wrongful termination claim. The superior court sustained the demurrer without leave to amend, concluding that the workers' compensation action did not equitably toll the time to file the government claim because it concerned only physical injuries arising out of the March 12, 2014 incident, which were unrelated to Lewis's alleged wrongful termination.
Lewis appealed, and the Court of Appeal affirmed. (Lewis v. Los Angeles County Metropolitan Transportation Authority (Apr. 2, 2018, B280604) [nonpub. opn.].) The appellate court explained that the equitable tolling doctrine requires, among other things, timely notice and lack of prejudice to the defendant. An earlier claim can provide notice of a later claim if" 'the facts of the two claims [are] identical or at least so similar that the defendant's investigation of the first claim will put him in a position to fairly defend the second.'" The critical question, therefore, is" 'whether notice of the first claim affords the defendant an opportunity to identify the sources of evidence which might be needed to defend against the second claim.'" In the present case, Lewis's workers' compensation claim "arose from entirely different facts than those alleged in his lawsuit, and is based on an entirely different theory of recovery than his retaliation claim. Plaintiff's whistleblower retaliation claim arose from plaintiff's termination on May 23, 2014, in retaliation for his reporting the 'illegality' of operating a bus without his necessary supplies to various MTA personnel. The viability of a retaliation claim turns on evidence of the employer's motive to terminate the plaintiff. [Citation.] Defendant's investigation of plaintiff's personal injuries sustained March 12, 2014, in the context of a workers' compensation case, would not put it on notice of plaintiff's whistleblower retaliation claim arising from his termination on May 23, 2014." Lewis's workers' compensation action, therefore, did not equitably toll the time to file his retaliation claim.
II. Federal Court Action (Lewis II)
Lewis filed a second action in federal court in February 2019, asserting that he lost his state court action because the MTA engaged in extrinsic fraud which deprived him of the opportunity to argue the merits of his retaliation/wrongful termination claims. Specifically, Lewis alleged that the MTA "failed to disclose internal documents and made intentional misstatements, which led the state court to dismiss his case."
On October 14, 2022, the MTA filed a request for judicial notice of the order dismissing the district court action. On November 3, 2022, we deferred ruling on the request for judicial notice, which we now grant. (Evid. Code, §§ 452, subds. (c), (d), 459, subd. (a).)
The MTA moved to dismiss the action, contending, among other things, that it was barred by the Rooker-Feldman doctrine. The Rooker-Feldman doctrine bars cases "brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." (Exxon Mobil Corp. v. Saudi Basic Industries Corp. (2005) 544 U.S. 280, 284.) The doctrine does not apply, however, where a plaintiff alleges that an adverse party in a state court proceeding committed extrinsic fraud that caused the state court to rule for that party. (E.g., Kougasian v. TMSL, Inc. (9th Cir. 2004) 359 F.3d 1136, 1141 ["Extrinsic fraud on a court is, by definition, not an error by that court. It is, rather, a wrongful act committed by the party or parties who engaged in the fraud. Rooker-Feldman therefore does not bar subject matter jurisdiction when a federal plaintiff alleges a cause of action for extrinsic fraud on a state court and seeks to set aside a state court judgment obtained by that fraud"].)
The district court concluded the extrinsic fraud exception did not apply and granted the motion to dismiss. It explained that extrinsic fraud is conduct that" 'prevents a party from presenting his claim in court.'" Intrinsic fraud, in contrast, is fraud that "weakens an opponent's case, such as through perjury or concealment of evidence, rather than fraud that prevents a party 'from getting into court at all.'" In the case before the court, Lewis alleged at most intrinsic fraud because he did not contend that the MTA prevented him from presenting his claim in state court. Instead, Lewis "fully participated in the state court case and presented his arguments there that [the MTA] concealed evidence and intentionally misled him." Accordingly, the court said, Lewis "has not alleged extrinsic fraud."
It does not appear that plaintiff appealed from the dismissal order in Lewis II.
III. The Present Case
Lewis filed the present action in February 2021 against the MTA and 20 individuals. Although the complaint's caption identifies 34 causes of action, the body of the complaint asserts only a single cause of action for extrinsic fraud. The complaint alleges that Lewis was unlawfully terminated in May 2014 after he refused to drive a bus without having his equipment bag with him. Lewis filed the Lewis I action, to which the MTA demurred on the ground that Lewis's delay in filing a government claim prejudiced its ability to defend the suit. According to Lewis's complaint, the demurrer "strongly implied, . . . without directly stating, that the 4 month delay in filing the administrative claim prejudiced [the MTA's] ability to defend." This implied assertion "is and was a false claim and was known [to the MTA] to be false . . . when made" because the MTA "had in fact thoroughly interviewed all the witnesses to the incident (who were supervisory employees) shortly after the incident" about "all aspects of what happened." Further, the complaint asserts the MTA "actively misled the Plaintiff and the Court by arguing that such an allegation, ie serious misconduct, would not trigger a complete investigation-while, at the same time knowing that policy of the MTA, in fact, required such an investigation; and that such an investigation had been done." These actions by the MTA "prevented Plaintiff from exercising his Constitutional rights to redress economic injuries in a Court of law and are a deprivation of Federally protected rights."
The MTA and 15 individual defendants (sometimes referred to collectively as MTA) filed a special motion to strike the complaint pursuant to section 425.16. The MTA asserted that the alleged wrongful acts-making fraudulent representations to the court in connection with the demurrer in Lewis I-were in furtherance of a judicial proceeding and thus were the proper subject of a special motion to strike. Further, Lewis could not establish a probability of prevailing because (1) the MTA's litigation conduct was insulated from liability by the litigation privilege, and (2) Lewis had previously litigated his extrinsic fraud claim on the merits in Lewis II, and thus the claim was barred by the doctrine of res judicata. Accordingly, the MTA urged the court to strike Lewis's complaint in its entirety.
The trial court granted the special motion to strike. It found, first, that the complaint arose out of protected conduct- namely, the MTA's oral and written statements in Lewis I. Second, the alleged fraudulent statements giving rise to the extrinsic fraud claim "were all made in Court or were statements in connection with a judicial proceeding," and thus were subject to the absolute litigation privilege of Civil Code section 47, subdivision (b). The court thus struck the complaint as to the MTA.
Five defendants unaffiliated with the MTA did not join the motion to strike and are not parties to this appeal.
Lewis filed a motion for reconsideration, which the trial court denied. Lewis appealed.
DISCUSSION
I. Timeliness of Appeal
We begin by considering the timeliness of Lewis's appeal. The trial court granted the special motion to strike on November 5, 2021, and denied Lewis's motion for reconsideration on December 14, 2021. On January 18, 2022, Lewis filed a notice of appeal of the order entered December 14, 2021-i.e., from the order denying Lewis's motion for reconsideration.
The order denying Lewis's motion for reconsideration is not a separately appealable order. (§ 1008, subd. (g) ["An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable"]; Chango Coffee, Inc. v. Applied Underwriters, Inc. (2017) 11 Cal.App.5th 1247, 1254 ["an order denying a renewed motion under section 1008, subdivision (b) is nonappealable"].) Nonetheless, we must liberally construe a notice of appeal in favor of its sufficiency if doing so would not prejudice a respondent. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20 [construing notice of appeal from nonappealable postjudgment order as encompassing underlying appealable judgment].) Accordingly, we will construe the notice of appeal as encompassing the November 5, 2021 order granting the special motion to strike, which is appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).)
As a general rule, a notice of appeal must be filed within 60 days of service of notice of entry of an appealable order. (Cal. Rules of Court, rule 8.104(a)(1).) However, if any party serves and files a valid motion to reconsider an appealable order under section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order, 90 days after the first motion to reconsider is filed, or 180 days after entry of the appealable order. (Id., Cal. Rules of Court, rule 8.108(e).) Here, Lewis timely filed a motion to reconsider the order granting the special motion to strike, thus Lewis's time to appeal was extended to 90 days after service of notice of entry of the order, or at least February 3, 2022. The notice of appeal filed January 18, 2022, therefore, was timely.
Lewis has not included in the appellate record the notices of entry of the orders granting the anti-SLAPP motion and denying the motion to reconsider.
II. Applicable Law and Standard of Review
"Enacted by the Legislature in 1992, the anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. (See § 425.16, subd. (a); Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-884.) To that end, section 425.16, subdivision (b)(1) provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
The analysis of an anti-SLAPP motion involves two steps. "Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.) A claim arises from protected activity "when that activity underlies or forms the basis for the claim." (Id. at p. 1062.) If the defendant carries its burden to demonstrate that the plaintiff's claims arise from protected activity, the plaintiff must then demonstrate its claims have at least" 'minimal merit.'" (Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 884.) To do so, "plaintiff must show the complaint is legally sufficient and '" 'supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' . . ." '" (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 488.)
An order granting or denying a special motion to strike is appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) Our review is de novo. (Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1067.)
III. The Trial Court Properly Granted the Special Motion to Strike
Lewis agrees that the first prong of the anti-SLAPP statute is met-i.e., that the challenged allegations or claims arise from defendant's protected litigation activity. We therefore turn to the second prong of the analysis-whether Lewis has demonstrated that his claim has at least minimal merit.
The MTA contends Lewis cannot demonstrate that his extrinsic fraud claim has minimal merit because the claim is precluded by the district court's decision in Lewis II. We agree.
The law of preclusion is designed to ensure that a dispute resolved in one case is not relitigated in a later case. (Samara v. Matar (2018) 5 Cal.5th 322, 326.) There are two forms of preclusion: claim preclusion and issue preclusion. (Id. at p. 326 &fn. 1.) Claim preclusion prevents relitigation of entire causes of action (id. at p. 326), while issue preclusion prevents" 'relitigation of previously decided issues.'" (Id. at p. 327).
" 'California follows the rule that the preclusive effect of a prior judgment of a federal court is determined by federal law, at least where the prior judgment was on the basis of federal question jurisdiction.' (Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442, 1452.)" (Akhlaghpour v. Orantes (2022) 86 Cal.App.5th 232, 249.) The district court dismissed Lewis II because it determined that it lacked federal subject matter jurisdiction under the Rooker-Feldman doctrine, thus we look to federal law to determine the preclusive effect of the Lewis II judgment.
Under federal common law, four conditions must be met for issue preclusion to apply:" '(1) the issue at stake was identical in both proceedings; (2) the issue was actually litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the issue was necessary to decide the merits.'" (Janjua v. Neufeld (9th Cir. 2019) 933 F.3d 1061, 1065 (Janjua), quoting Oyeniran v. Holder (9th Cir. 2012) 672 F.3d 800, 806, as amended May 3, 2012; accord, Howard v. City of Coos Bay (9th Cir. 2017) 871 F.3d 1032, 1041.) Applying these four conditions, we conclude that Lewis II precludes the present case.
First, Lewis II and the present case raise identical issues. As we have said, the Rooker-Feldman doctrine "prohibits a federal district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment." (Kougasian v. TMSL, Inc., supra, 359 F.3d 1136, 1139; accord, Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1187, fn. 7 [" '[U]nder what has come to be known as the Rooker-Feldman doctrine, lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments' "].) In support of its motion to dismiss in Lewis II, the MTA contended Rooker-Feldman applied because Lewis was raising issues already decided by the superior court in Lewis I; in opposition, Lewis contended that Rooker-Feldman did not apply because the MTA prevailed in Lewis I by engaging in extrinsic fraud. Accordingly, to determine whether the Rooker-Feldman doctrine barred federal jurisdiction, the district court had to "first determine whether the extrinsic fraud exception applies." The present case raises the identical issue-whether the MTA prevailed in Lewis I by engaging in extrinsic fraud.
Second, the extrinsic fraud issue was" 'actually litigated and decided in the prior proceedings.'" (Janjua, supra, 933 F.3d at p. 1065.) In its order dismissing Lewis's complaint in Lewis II, the district court set out the elements of extrinsic fraud and then found that Lewis "fails to allege extrinsic fraud because he does not argue that Defendant prevented him from presenting his claim in state court." Instead, "Plaintiff fully participated in the state court case and presented his arguments there that Defendant concealed evidence and intentionally misled him." Accordingly, the district court said, "because Plaintiff has already 'presented his claim in court,' he [has] not alleged extrinsic fraud."
Third, Lewis had a" 'full and fair opportunity to litigate'" the extrinsic fraud issue in Lewis II. (Janjua, supra, 933 F.3d at p. 1065.) There, he filed his initial complaint pro se, but was granted leave to amend after retaining counsel. Then, when the MTA moved to dismiss the amended complaint, Lewis filed a written opposition in which he contended Rooker-Feldman did not apply because he alleged extrinsic fraud.
Finally, the extrinsic fraud issue was" 'necessary to decide the merits'" of the motion to dismiss in Lewis II. (Janjua, supra, 933 F.3d at p. 1065.) As we have said, to determine whether it had jurisdiction to hear Lewis's case, the district court necessarily decided whether Lewis adequately alleged extrinsic fraud. The court concluded Lewis had not done so, explaining: "Even if Plaintiff had not already presented [his] allegations [in Lewis I], and assuming they were true, they would at most amount to intrinsic fraud. Plaintiff alleges that Defendant misrepresented procedures and concealed evidence from him, which caused the state court to dismiss his claims. [Citations.] However, these actions would have merely weakened Plaintiff's case, rather than prevented him 'from getting into court at all.' [Citations.] . . . [¶] Accordingly, because Plaintiff makes similar arguments to those already rejected in state court and alleges intrinsic fraud at best, the extrinsic fraud exception does not apply." (Italics added.)
Lewis contends the district court's order should not have preclusive effect because the court" 'abstain[ed] from deciding Plaintiff's claims'" and therefore did not adjudicate Lewis's claims on the merits. But that contention ignores the fact that the district court did reach the merits of Lewis's extrinsic fraud claim because doing so was a necessary element of its jurisdictional analysis. The district court's dismissal order, therefore, is preclusive as to extrinsic fraud. (See, e.g., Oglala Sioux Tribe of Pine Ridge Indian Reservation v. Homestake Min. Co. (8th Cir. 1983) 722 F.2d 1407, 1411 [dismissal of a suit for lack of federal subject matter jurisdiction precludes relitigation of the same issue of subject matter jurisdiction in a second federal suit on the same claim]; DiGiore v. Ryan (7th Cir. 1999) 172 F.3d 454, 466 [although a dismissal based on justiciability grounds does not bar later litigation of the merits, the dismissal does have res judicata effects as to the justiciability issue itself], overruled on other grounds by Whetsel v. Network Prop. Servs., LLC (7th Cir.2001) 246 F.3d 897; 18 Wright &Miller, Federal Practice and Procedure (3d ed. 2023) § 4402 ["[D]ifferent requirements are appropriate to different preclusive effects. Dismissal of a suit for want of federal subject-matter jurisdiction, for example, should not bar an action on the same claim in a court that does have subject matter jurisdiction, but ordinarily should preclude relitigation of the same issue of subject-matter jurisdiction in a second federal suit on the same claim"].)
Lewis also contends that issue preclusion does not bar his suit because" 'new evidence' precludes the application of res judicata to bar a complaint." But the single case Lewis cites for this proposition does not support it. To the contrary, Lawlor v. National Screen Service Corp. (1955) 349 U.S. 322, 327, holds only that subsequent conduct by a defendant after entry of a judgment may give rise to a new cause of action that is not barred by res judicata. (See id. at p. 328 ["While the 1943 judgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case"].) Lawlor manifestly does not hold that a plaintiff's discovery of evidence that existed prior to the entry of judgment avoids the res judicata bar. (Ibid.)
Lewis contends, finally, that this court cannot affirm the order granting the anti-SLAPP motion based on the preclusive effect of the federal court judgment because "[t]he [t]rial court did not decide the anti Slapp [sic] motion based on the District Court[']s ruling." Not so. Because our review of the trial court's order is de novo, we may affirm the order if it "is correct on any theory applicable to the case." (City of Alhambra v. D'Ausilio (2011) 193 Cal.App.4th 1301, 1307; accord, Jameson v. Pacific Gas &Electric Co. (2017) 16 Cal.App.5th 901, 909 ["' "As a corollary of the de novo review standard, the appellate court may affirm a summary judgment on any correct legal theory, as long as the parties had an adequate opportunity to address the theory in the trial court"' "].) That the trial court did not address issue and claim preclusion, therefore, is irrelevant to our analysis.
Having concluded that the present action is barred by issue preclusion, we need not address the MTA's alternative contention that it is also barred by the litigation privilege.
DISPOSITION
The order granting the special motion to strike is affirmed. The MTA is awarded its appellate costs.
We concur: LAVIN, Acting P. J., EGERTON, J.