Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC 05 438458
Margulies, J.
Plaintiff is a former attorney on the staff of the State Bar of California (State Bar). His complaint alleges that he became aware of unethical and improper conduct by judges of the State Bar Court (Bar Court). When his superiors refused to take steps to report this misconduct, plaintiff notified various regulatory bodies. Thereafter, he was subjected to a number of negative employment actions, allegedly in retaliation for speaking out regarding the conduct of the Bar Court judges, and he eventually resigned his position.
Plaintiff initially sued the State Bar and several of his superiors in federal district court. The district court dismissed without prejudice all of his claims against the State Bar on Eleventh Amendment grounds and eventually granted summary judgment on his claims against the individual defendants. After plaintiff refiled his claims in state court, the superior court granted judgment on the pleadings, holding that the claims were barred by the preclusive effect of the federal judgment or were otherwise legally deficient. We reverse in part, concluding that plaintiff’s claim for defamation against the State Bar and the individual defendants acting in their official capacities is not barred by the federal judgment. We otherwise affirm.
I. BACKGROUND
Plaintiff was formerly employed as an attorney in the Office of the Chief Trial Counsel of the State Bar (office), having resigned from his position on October 27, 2004. Prior to his resignation, on June 4, 2004, plaintiff filed a lawsuit in United States District Court against the State Bar and several of his superiors in the office, defendants Lawrence Dal Cerro, Russell Weiner, Allen Blumenthal, and Robert Hawley. The federal complaint alleged that plaintiff was hired by the State Bar in 1999 to litigate matters concerning attorney regulation and discipline. Beginning in May 2003, plaintiff began to report to his superiors, including some of the individual defendants, misconduct by the judges of the Bar Court. Plaintiff asked them to report this misconduct to regulatory authorities and threatened to act independently if they did not. When his superiors took no action, plaintiff filed his own complaint regarding the judges’ misconduct with the Commission on Judicial Performance and made reports to other governmental bodies. The complaint alleged that, in retaliation for this activity, the individual defendants took negative employment actions against plaintiff and failed to prevent other harassing conduct directed toward him. The complaint joined claims for retaliation under Labor Code section 1102.5, Government Code section 9149.20, and the common law and two claims under title 42 United States Code section 1983 (hereafter section 1983), for violation of plaintiff’s First and Fourteenth Amendment rights. Plaintiff sought compensatory and punitive damages and injunctive relief requiring defendants to expunge critical material from his employment records.
Defendants filed a motion to dismiss, arguing that the claims were barred by the Eleventh Amendment, which prohibits the federal courts from hearing lawsuits against a state. In a written decision, the district court held that the State Bar was immune, under the Eleventh Amendment, from suits seeking monetary or injunctive relief in federal court. (Konig v. State Bar of Cal. (N.D.Cal., Sept. 16, 2004, No. C 04-2210 MJJ) 2004 U.S.Dist. Lexis 19498.) The district court also extended this immunity to claims for monetary, but not injunctive, relief against the individual defendants while acting in their official capacities. The district court further held, among other rulings, that plaintiff’s section 1983 cause of action alleging a violation of the Fourteenth Amendment failed to state a claim and that his state law claims were barred for failure to comply with the Tort Claims Act (Gov. Code, § 810 et seq.).
As a result of the ruling, all of plaintiff’s claims against the State Bar were dismissed “without prejudice to refiling in state court,” as were all of his state claims and his federal claims for damages against the individual defendants acting in their official capacities. Regarding plaintiff’s claims against the individual defendants acting in their individual capacities, the district court dismissed without prejudice plaintiff’s section 1983 claim under the Fourteenth Amendment, dismissed with prejudice his claim under Labor Code section 1102.5 and his common law retaliation claim, and dismissed his Government Code section 9149.23 claim with leave to amend to plead compliance with the Tort Claims Act.
On October 4, 2004, plaintiff filed an amended complaint against the individual defendants containing similar factual allegations but alleging only claims under section 1983 for violation of his First and Fourteenth Amendment rights. The defendants initially filed a motion for partial summary judgment directed against plaintiff’s section 1983 claim under the Fourteenth Amendment. The district court granted the motion, concluding that the Fourteenth Amendment did not entitle plaintiff to notice and a hearing prior to the negative employment actions he alleged and that the grievance procedure contained in a memorandum of understanding (MOU) between the State Bar and the union representing the State Bar’s attorney employees was not constitutionally deficient. (Konig v. Dal Cerro (N.D.Cal., Apr. 6, 2005) No. C 04-2210 MJJ.)
The individual defendants then filed a motion for partial summary judgment with respect to plaintiff’s other cause of action, alleging a violation of his First Amendment rights. The district court’s detailed written decision granting this motion began by reviewing the evidence submitted by the parties. According to the decision, plaintiff’s job was to litigate matters in the Bar Court and superior court relating to attorney admission, regulation, and discipline. (Konig v. Dal Cerro (N.D.Cal., Oct. 11, 2005, No. C 04-2210 MJJ) 2005 U.S.Dist. Lexis 24560.) Defendants Dal Cerro and Blumenthal were plaintiff’s immediate supervisors, with Hawley and Weiner above them in the chain of command. In 2002, plaintiff began to complain to his superiors that the two Bar Court judges in San Francisco lacked judicial decorum, acted unethically, and issued improper rulings. Defendants came to believe that plaintiff had developed a hostile relationship with these judges, which concerned them because the State Bar’s attorneys appeared in front of these judges continually.
In September 2003, plaintiff wrote a memorandum to Dal Cerro, claiming that he was not getting sufficient support from his superiors and that he was being treated unfairly by the Bar Court judges. He also wrote a letter to a former witness in which, his superiors believed, he improperly disclosed the State Bar’s work product and mocked a superior. Soon thereafter, plaintiff met with Dal Cerro in the presence of a union representative. According to plaintiff, Dal Cerro made several false allegations about his work and purportedly insubordinate conduct during that meeting. This precipitated an exchange of memos between plaintiff and Dal Cerro in which, plaintiff alleged, more misrepresentations were made. Plaintiff was reassigned from a pending case because of concerns by his supervisors over his conduct.
In November and December 2003, plaintiff filed several written complaints with various governmental agencies regarding one of the Bar Court judges. In mid-November, plaintiff specifically disregarded the direction of one of his superiors, for which he was issued a formal written warning. When plaintiff failed to sign or comply with the first written warning, he was issued a second. In November, he was also given a performance review. The review was generally positive, but it noted his antagonistic encounters with the Bar Court judges and others.
In January, plaintiff was reassigned from some trial responsibilities to focus on drafting documents, since he was clashing with the judges and others in courtroom proceedings. Following his reassignment, plaintiff engaged in several acts of insubordination, refusing to follow office guidelines and generally resisting instruction from his superiors, and he accused his superiors of harassment and unethical conduct. In May, Dal Cerro presented plaintiff with a “Performance Improvement Plan” (plan), which listed deficiencies in his work performance and provided guidance for improvement. Plaintiff responded with a 25-page memorandum challenging the basis of the plan and contending that it was retaliatory and harassing. When plaintiff failed to comply with the plan, he was issued a notice of disciplinary action in August, suspended for three days, and removed from all further court appearances. At this point, plaintiff took a voluntary leave of absence, staying away from work until his resignation in October 2004.
Analyzing plaintiff’s First Amendment claim, the district court concluded that plaintiff engaged in several types of speech protected by the First Amendment, including statements of intent to seek redress from various governmental authorities, written complaints to those authorities, and two internal memoranda that included discussion of his dissatisfaction with the Bar Court judges. The district court then reviewed the conduct of each individual defendant, concluding that plaintiff submitted evidence of negative employment actions by only three of them, Dal Cerro, Blumenthal, and Hawley. Finally, the district court analyzed the evidence that, plaintiff claimed, demonstrated that these negative employment actions were motivated by retaliation. He found no evidence that defendants expressed opposition to plaintiff’s protected speech or that defendants’ explanations for the negative actions, plaintiff’s insubordination, were false and pretextual. As the district court concluded, “The evidentiary record before the Court does not support a finding that the reasons offered by Defendants for taking the actions they did were [a] pretext for retaliation. . . . Plaintiff offers only generalities to support his pretext argument, claiming that because he was treated poorly around the time he submitted complaints about judicial misconduct, the events must be connected. In light of the totality of the record, . . . the Court finds plaintiff has failed to marshal significant and probative evidence sufficient to avoid summary judgment.” (Konig v. Dal Cerro, supra, 2005 U.S.Dist. Lexis 24560 at **70–71.) Accordingly, the district court granted summary judgment on plaintiff’s remaining claim.
Prior to the issuance of the two orders granting partial summary judgment, plaintiff had filed this lawsuit in superior court against the same individual defendants and the State Bar, containing essentially the same factual allegations. The allegations of the amended state complaint, the operative pleading in this action, are focused on plaintiff’s concerns about the conduct of the Bar Court judges and the failure of his superiors to take action with respect to those concerns. For example, plaintiff alleges that, “[b]eginning in or about May 2003, Plaintiff repeatedly advised Defendants of rulings and orders in several State Bar Court matters that violated Defendant STATE BAR’s state and federal constitutional rights, violated witnesses’ state and federal constitutional rights, and disregarded binding precedent, including that of the California Supreme Court.” The amended complaint continues, “Plaintiff consistently and repeatedly urged Defendants to take appropriate and necessary action in response to the actions of the State Bar Court in order to protect the constitutional rights of Defendant STATE BAR and witnesses, and to ensure the adequate protection of the public, the legal profession, and the administration of justice.” The amended complaint details the various ways in which plaintiff made his superiors aware of the perceived misconduct of the Bar Court judges and, failing to get action, reported this misconduct to various public bodies. After becoming aware of these reports, the amended complaint alleges, “Defendants, and each of them, and their agents and employees, engaged in a continuous course of defamation, harassment, intimidation, hostility, and retaliation against Plaintiff because of his continued complaints and reports . . . .” This unjustified harassment, which the amended complaint characterizes as retaliation for his reports regarding the conduct of the Bar Court judges, is the gravamen of his claims.
The amended complaint pleads four claims based on these factual allegations. The first, for wrongful constructive discharge, is asserted only against the State Bar and alleges that plaintiff was constructively discharged from his employment “for false, pretextual and defamatory reasons in retaliation for his reports and complaints.” The second cause of action, asserted against all defendants, alleges retaliation in violation of Labor Code section 1102.5, Government Code section 9149.23, and the common law. The third cause of action, for defamation, also asserted against all defendants, alleges over three pages of defamatory statements, generally associated with plaintiff’s job performance. Finally, plaintiff alleges a cause of action for intentional infliction of emotional distress based on the acts alleged in the prior causes of action. As relief, the amended complaint seeks only money damages.
Soon after the district court granted summary judgment on the remaining claim in plaintiff’s federal lawsuit, defendants filed a motion for judgment on the pleadings in superior court arguing primarily that the judgment in the federal action barred plaintiff’s state claims under the doctrines of res judicata and collateral estoppel. The trial court granted the motion, dismissing plaintiff’s state complaint.
The trial court dismissed the complaint “for the reasons set forth in defendants’ moving papers.” Because the parties did not include their memoranda of points and authorities filed with the trial court in the appellate record, we have no direct knowledge of the arguments made. We assume that the arguments addressed by plaintiff in his opening brief were the arguments made to and accepted by the trial court.
II. DISCUSSION
Analysis of this matter is complicated by the involvement of two differently postured sets of defendants, the individual defendants acting in their individual capacity, on the one hand, and the State Bar and the individual defendants acting in their official capacity, on the other, and two different legal doctrines, res judicata and collateral estoppel. In the following discussion, we consider the two sets of defendants separately, applying each of the legal doctrines in turn.
For the reasons discussed below, we conclude that the state claims against the individual defendants acting in their individual capacities are barred by res judicata because plaintiff was able to pursue his claims against these defendants to judgment in the federal action. Since federal res judicata bars claims that could have been brought as well as those actually brought, all state claims are precluded against these defendants. In contrast, because plaintiff’s claims against the State Bar and the individual defendants acting in their official capacities were dismissed from the federal suit on Eleventh Amendment grounds, res judicata does not preclude state claims against these defendants. Nonetheless, because plaintiff’s state lawsuit is substantively identical to the federal action, featuring the same events, actors, and legal theories, the doctrine of collateral estoppel does preclude most of plaintiff’s state claims against the State Bar and the individual defendants acting in their official capacities. The exception is plaintiff’s claim for defamation; while this claim is based on largely the same facts as the remaining claims, the legal elements of defamation are sufficiently different from those of the claims that were adjudicated in federal court that the doctrine of collateral estoppel does not bar litigation of this claim.
“ ‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ [Citation.]” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) When a federal court renders a judgment while acting within its federal question jurisdiction, as the district court did here, California courts must give to that judgment the same preclusive effect the judgment would have in a federal court. (Semtek Int’l Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, 507; Martin v. Martin (1970) 2 Cal.3d 752, 761; Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1163.) Accordingly, we apply federal law in determining the preclusive scope of the district court’s orders.
An initial question is whether the judgment has any preclusive effect at all, since it is still pending appellate review. Under California law, a California judgment has no res judicata effect until all appeals are exhausted. (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1174.) Under federal law, in contrast, a district court judgment has preclusive effect unless and until it is reversed on appeal. (Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923, 928.) Because we apply the federal rule of finality to a federal court judgment asserted in our courts (Martin v. Martin, supra, 2 Cal.3d at p. 761), we treat the federal judgment as final for purposes of res judicata.
Review of a trial court’s grant of judgment on the pleadings is de novo. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.) “A trial court’s determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. [Citations.] In addition, it gives them a liberal construction. [Citations.] [¶] An appellate court’s consideration of the ensuing determination by the trial court involves the same acceptance and liberal construction of the factual allegations in question. [Citations.]” (Id. at pp. 515–516.)
A. Res Judicata
1. The State Bar and the Individual Defendants Acting in Their Official Capacities
“Generally ‘[u]nder res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.’ ” (Manufactured Home Communities v. City of San Jose (9th Cir. 2005) 420 F.3d 1022, 1031.) In order to claim res judicata effect for the federal judgment regarding the claims raised in plaintiff’s state lawsuit, defendants must show that plaintiff did, or could have, raised those claims in the federal lawsuit.
As noted above, the district court ruled that the Eleventh Amendment barred the district court from asserting jurisdiction over any claims alleged by plaintiff against the State Bar and any claims for damages alleged against the individual defendants acting in their official capacity. Accordingly, res judicata cannot bar the assertion of these claims in plaintiff’s state lawsuit, since plaintiff was not allowed to raise them, and could not lawfully have done so, in the federal lawsuit. (See, e.g., Baker Group v. Burlington Northern & Santa Fe Ry. (8th Cir. 2000) 228 F.3d 883, 885–886; Zhang v. Dept. of Labor & Immigration (9th Cir. 2003) 331 F.3d 1117, 1119.)
The State Bar attempts to avoid this conclusion by pointing out that, even if res judicata does not bar plaintiff’s claims against the State Bar directly, res judicata can be asserted not only by the parties to a judgment but also by persons in privity with the parties. Accordingly, it has been held, a person or entity that is vicariously liable for the conduct of a defendant may assert a judgment obtained by that defendant against any claim premised on vicarious liability and based on the same conduct. (See Rest.2d Judgments, § 51, subd. (1); e.g., Spector v. El Ranco, Inc. (9th Cir. 1959) 263 F.2d 143, 145.) The State Bar argues that because the individual defendants obtained a judgment against plaintiff, the State Bar, as employer of those defendants, can assert the preclusive effect of the judgment.
Had plaintiff been permitted to sue the individual defendants in their official capacities in his federal lawsuit, this argument might succeed. As noted above, however, plaintiff was permitted to proceed against the individual defendants only in their individual capacities. Under section 1983, the State Bar could be held vicariously liable only for the conduct of the individual defendants acting in their official capacities, not for conduct in their individual capacities. (Canton v. Harris (1989) 489 U.S. 378, 385.) Indeed, that is the only reason plaintiff was permitted to proceed with his claims against the individual defendants in the federal action over an Eleventh Amendment objection—as claims against the individual defendants in their individual capacities, these claims did not constitute claims against the State. Accordingly, because the only claims adjudicated in the federal lawsuit were against the individual defendants acting in their individual capacities, the State Bar would not have been vicariously liable for any of the claims adjudicated in the federal lawsuit. For that reason, the State Bar may not assert the federal judgment obtained by the individual defendants as res judicata against plaintiff’s claims in this lawsuit.
The same is true of the claims against the individual defendants acting in their official capacities. Governmental officials who are sued in their official capacities may not assert a favorable judgment obtained by them in that capacity to bar a later action brought against them for the very same conduct in their individual capacities. (Andrews v. Daw (4th Cir. 2000) 201 F.3d 521, 525; De Llano v. Berglund (8th Cir. 1999) 183 F.3d 780, 782; Headley v. Bacon (8th Cir. 1987) 828 F.2d 1272, 1279.) The federal courts have reasoned that a person acting in an official capacity is not in privity with the same person acting in his or her individual capacity, since suits against persons in their official capacity are essentially suits against their employing state entity, while suits against them in their individual capacity are truly suits against the individuals themselves. For that reason, the judgment obtained by the individual defendants against plaintiff may not be asserted in this action to bar claims against them based on conduct in their official capacities.
Defendants point out that the district court permitted the injunctive claims against the individual defendants in their official capacities to proceed. If plaintiff were pursuing claims for equitable relief in the state lawsuit, these might be precluded by res judicata. He is not. Because the district court held that claims for damages against the individual defendants acting in their official capacity could not be maintained in the federal action, such claims cannot be barred by the preclusive effect of a judgment in that action.
Citing Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441 (Mattson), defendants also argue that because plaintiff chose to file two actions, when he could have joined all of his claims in a single state court action, he effectively forfeited his right to the state lawsuit. (Id. at p. 454.) Mattson, however, concerned the preclusive impact of a federal judgment on state claims over which a federal court declined to exercise pendant jurisdiction. In that situation, the federal court could have, but declined to hear the state claims under its discretionary jurisdiction. In this case, by contrast, the federal court was constitutionally precluded from hearing the claims against the State Bar. Accordingly, as discussed above, these claims fail the first rule of res judicata: that it bars only claims that a plaintiff brought or could have brought in the first action. Because Mattson does not deal with the dismissal of state claims that could not have been brought in federal court, but only claims that were dismissed in a discretionary manner, it is not controlling here.
We note as well that the Mattson ruling has been criticized by a more recent decision, Harris v. Grimes (2002) 104 Cal.App.4th 180, 188–189, which declined to follow Mattson. We have no occasion to take sides because the district court’s decision not to exercise jurisdiction over the dismissed claims was not discretionary but constitutionally compelled.
In sum, we conclude that plaintiff is not prevented by the doctrine of res judicata from pursuing any of his claims against the State Bar or the individual defendants acting in their official capacities.
2. The Individual Defendants Acting in Their Individual Capacities
“Res judicata applies when ‘the earlier suit . . . (1) involved the same “claim” or cause of action as the later suit, (2) reached a final judgment on the merits, and (3) involved identical parties or privies.’ [Citation.] [¶] Whether the two suits involve the same claim or cause of action requires us to look at four criteria, which we do not apply mechanistically: (1) whether the two suits arise out of the same transactional nucleus of facts; (2) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (3) whether the two suits involve infringement of the same right; and (4) whether substantially the same evidence is presented in the two actions. [Citation.] [¶] We use a transaction test to determine whether the two suits share a common nucleus of operative fact. [Citation.] ‘Whether two events are part of the same transaction or series depends on whether they are related to the same set of facts and whether they could conveniently be tried together.’ [Citation.]” (Mpoyo v. Litton Electro-Optical Systems (9th Cir. 2005) 430 F.3d 985, 987.)
Plaintiff was permitted by the district court to adjudicate his claims against the individual defendants acting in their individual capacity in the federal action. Those claims grow out of the same “common nucleus of operative fact” and involve the same evidence as the claims asserted in plaintiff’s state action—the circumstances that brought about his departure from employment with the State Bar. There is no question that any decision for plaintiff in the state action would impair the defense judgment rendered by the district court. Accordingly, res judicata bars plaintiff’s assertion of the claims in his state complaint against the individual defendants acting in their individual capacities.
Plaintiff contends that res judicata cannot apply because the section 1983 claim adjudicated by the district court “is not the same cause of action as any state cause of action.” The argument misunderstands the nature of res judicata. As noted above, the federal doctrine of res judicata bars, in essence, any claim arising out of the same general set of facts that was or could have been raised in the prior action. Whether two claims are the “same” for purposes of res judicata does not depend upon whether they share the same legal elements but upon their factual foundation—i.e., whether they “share a common nucleus of operative fact.” (Mpoyo v. Litton Electro-Optical Systems, supra, 430 F.3d 985 at p. 987.) While plaintiff’s state claims may not have the same elements as his section 1983 claims, it is clear that all grow out of the same general set of events—the circumstances surrounding the adverse actions taken against plaintiff during his employment at the State Bar.
Plaintiff also argues, citing Agarwal v. Johnson (1979) 25 Cal.3d 932 (disapproved on other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4), that a section 1983 judgment in federal court can never preclude state claims for defamation and intentional infliction of emotional distress. We do not read Agarwal so broadly. At most, Agarwal held that the plaintiff’s particular claims for wrongful discharge and intentional infliction of emotional distress arose from a harm other than the racial discrimination raised in his section 1983 action. (Id. at p. 955.) Here, the harm alleged in plaintiff’s section 1983 claim and his claims for defamation and intentional infliction of emotional distress, that he was subjected to wrongful employment actions, is identical.
In an effort to preserve at least some of his claims against the individual defendants in their individual capacity, plaintiff cites the rule, generally accepted in most federal circuits, that “[w]hile claim preclusion bars relitigation of the events underlying a previous judgment, it does not preclude litigation of events arising after the filing of the complaint that formed the basis of the first lawsuit.” (Curtis v. Citibank, N.A. (2d Cir. 2000) 226 F.3d 133, 139; Apotex, Inc. v. Food & Drug Admin. (D.C. Cir. 2004) 393 F.3d 210, 218 [no bar to “claims based on material facts that were not in existence when they brought the original suit”].) Plaintiff contends that he should be permitted to pursue claims—in particular, portions of his defamation claim—against the individual defendants in their individual capacities to the extent those claims rely on facts arising after June 4, 2004, when he filed his federal lawsuit.
Defendants argue that the Ninth Circuit applies a different rule from its sister circuits, extending res judicata to claims based on any events occurring before entry of the preclusive judgment, rather than filing of the lawsuit. The case on which they place primary reliance, Monterey Plaza Hotel v. Local 483 (9th Cir. 2000) 215 F.3d 923, however, applies California, not federal law. (Id. at pp. 927–928.)
Only one case cited by defendants addresses the issue as a matter of federal law. In Gregory v. Widnall (9th Cir. 1998) 153 F.3d 1071 (Gregory), the Ninth Circuit implicitly held that claims based on facts arising before entry of the precluding judgment are barred by res judicata. The plaintiff in Gregory had filed a federal civil rights lawsuit alleging employment discrimination that resulted in his termination from employment in 1992. (Id. at p. 1072.) He was reinstated to his job in September 1994, apparently as a result of the entry of a stipulated judgment in the lawsuit that same month. Some two years later, the plaintiff filed a second lawsuit alleging other acts of discrimination, including a claim alleging a hostile work environment. (Id. at p. 1073.) In an appeal of a grant of summary judgment on the hostile work environment claim, the Ninth Circuit noted that the plaintiff had “included extensive evidence of a hostile discriminatory environment in the period up to September 1994, when the stipulated judgment was reached in” the first lawsuit. (Ibid.) It then affirmed the trial court’s conclusion that res judicata barred any claim based on acts predating the judgment in the first lawsuit, holding, “In his first Title VII action, Gregory claimed that he was subject to discrimination on the basis of his race and sex, and in retaliation for making complaints. He pointed to precisely the same incidents from 1992-1994 as he now cites in support of his hostile work environment claim. ‘[R]es judicata (or claim preclusion) bar(s) all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties . . . on the same cause of action.’ [Citation.] We are therefore estopped from considering evidence of incidents before September 6, 1994 to prove that Gregory was subject to a hostile work environment.” (Id. at p. 1074.) While Gregory does not discuss the issue expressly, the clear implication of its holding is that res judicata reaches all claims based on events occurring before entry of the preclusive judgment.
In a footnote, defendants list two other cases, but both are distinguishable. Neither U.S. ex rel. Barajas v. Northrop Corp. (9th Cir. 1998) 147 F.3d 905, 909, nor Hawkins v. Risley (9th Cir. 1993) 984 F.2d 321, 324, addresses the issue presented here. Rather, both consider whether a judgment can preclude the claims in an action filed earlier than the action in which the judgment was rendered.
Plaintiff cites only one case from the Ninth Circuit, Los Angeles Branch NAACP v. L.A. Unified Sch. Dist. (9th Cir. 1984) 750 F.2d 731, to support his position that events occurring or discovered after the filing of the complaint in the preclusive action are not barred. NAACP, however, suffers from the same deficiency as Monterey Plaza Hotel v. Local 483: it applies California state law, not federal law. (NAACP, at p. 736.) Our own search revealed only one Ninth Circuit case that has followed NAACP as a matter of federal law on this point. (Cabrera v. City of Huntington Park (9th Cir. 1998) 159 F.3d 374, 382, fn. 12 (Cabrera).)
There is no question that California state courts do not apply res judicata to claims arising or discovered after the filing of the initial complaint in the preclusive lawsuit. (See Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.) In this action, however, we must apply federal law of res judicata.
Assuming that Cabrera and Gregory are in conflict, we conclude that we are required to follow Gregory. Under Ninth Circuit law, only a later en banc decision can overrule a prior decision by a panel of the court. (U.S. v. Smith-Baltiher (9th Cir. 2005) 424 F.3d 913, 926.) Gregory is an earlier decision than Cabrera, albeit by only a month. Because Cabrera is not an en banc decision, it could not overrule Gregory, which would therefore be binding on the district courts in the Ninth Circuit. For that reason, any claim of which plaintiff was aware at the time judgment was rendered in the federal decision is barred by res judicata as to the individual defendants acting in their individual capacities. Because plaintiff filed his state complaint prior to the district court’s grant of summary judgment, the facts underlying his state claims were necessarily known to him at the time judgment was entered in the federal lawsuit. Accordingly, the entirety of plaintiff’s defamation claim, as well as all other claims, alleged against the individual defendants acting in their individual capacities are barred by res judicata.
While we have found no Ninth Circuit decision following Gregory on this exact point, Gregory’s general res judicata ruling continues to be regularly cited as authority by the circuit. (E.g., Headwaters Inc. v. U.S. Forest Service (9th Cir. 2004) 382 F.3d 1025, 1028; Owens v. Kaiser Foundation Health Plan, Inc. (9th Cir. 2001) 244 F.3d 708, 714.)
B. Collateral Estoppel
Although res judicata does not bar the claims against the State Bar and the individual defendants acting in their official capacities, the doctrine of collateral estoppel can apply to these claims because party or privy status is not a prerequisite to invocation of the doctrine of collateral estoppel. (Pena v. Gardner (9th Cir. 1992) 976 F.2d 469, 472.) The individual defendants acting in their individual capacities can assert the doctrine of collateral estoppel to the same extent as the State Bar and the individual defendants acting in their official capacities.
Although we have found that all of plaintiff’s claims against the individual defendants acting in the individual capacities are barred by res judicata, collateral estoppel is an alternative ground to support the trial court’s decision as to these defendants to the extent plaintiff’s claims are also barred by collateral estoppel.
“As a general proposition, ‘[t]he doctrine of collateral estoppel (or issue preclusion) prevents relitigation of issues actually litigated and necessarily decided, after a full and fair opportunity for litigation, in a prior proceeding.’ [Citation.] We have applied the doctrine ‘where (1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding.’ [Citation.]” (Af-Cap Inc. v. Chevron Overseas (Congo) Ltd. (9th Cir. 2007) 475 F.3d 1080, 1086.)
Ordinarily, the concept of “actually litigated and necessarily decided” is applied in the context of a jury verdict, where the reasoning of the trier of fact is unknown. In such cases, if a factual issue is put at issue by the parties (actually litigated) and is necessary to the jury’s verdict (necessarily decided), a court will find the prerequisites for collateral estoppel. Here, we have extensive reasoning and a number of express factual findings from the district court. In this context, we will construe “actually litigated and necessarily decided” to mean (1) the district court made an affirmative finding on an issue of fact or law and (2) that finding was necessary in order for him to award summary judgment to defendants on one of plaintiff’s claims in the federal litigation. (See, e.g., Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 286–287 [findings and conclusions of law of federal court ruling on summary judgment can have collateral estoppel effect when case decided on the merits].) With respect to preclusion on issues of fact, we restrict our review to the district court’s decision on the First Amendment claim because that is the only decision in which the district court resolved factual issues relevant to plaintiff’s state causes of action.
We reject plaintiff’s claim that defendants were required to submit the entire evidentiary record before the district court to carry their burden of proof on the motion for judgment on the pleadings. In support plaintiff cites only a state case, Schaefer/Karpf Productions v. CNA Ins. Companies (1998) 64 Cal.App.4th 1306, which is not binding because we apply federal law here. In any event, Schaefer/Karpf does not hold that a party asserting collateral estoppel must submit the record from the prior litigation, but only that it must be clear that an issue actually was raised and resolved in the prior litigation before collateral estoppel will be applied. (Id. at p. 1314.) Given the district court’s detailed written rulings, there is no uncertainty what issues were and were not decided.
Plaintiff’s primary argument against the application of collateral estoppel is that the elements of the causes of action he has pleaded in the state action are different than the elements of the causes of action that were decided in the federal suit, covering a wider range of conduct than the constitutional claims of the federal lawsuit and bearing different burdens of proof. It is not necessary, however, for the causes of action pleaded in the first and subsequent lawsuits to have identical elements for collateral estoppel to bar the assertion of the subsequent claims. The exact elements of the claims in the subsequent action are relevant only for determining whether at least one element necessary to decision of a claim in the subsequent action is identical to an issue actually litigated and necessarily decided in the first action. If the court in the first action has actually ruled against the plaintiff on a factual or legal issue on which the plaintiff must prevail to succeed on a claim asserted in the second action, the plaintiff will be precluded from relitigating that issue, and thereby be prevented from prevailing on that claim. Assertion of a claim is therefore precluded by the doctrine of collateral estoppel, not because the claim is the same as a claim in the first lawsuit, but because plaintiff has irrevocably failed on a factual or legal issue necessary to prevail on the claim. Plaintiff’s contention that the claims in his state suit are not identical with those in the federal lawsuit is therefore irrelevant, so long as the claims have overlapping legal or factual elements. With that principle in mind, we review the claims of plaintiff’s state lawsuit.
1. Retaliation
Plaintiff’s claim for retaliatory discharge in breach of public policy is premised on Government Code section 9149.23, Labor Code section 1102.5, and Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny). Government Code section 9149.23 precludes a person from attempting to prevent another from “disclos[ing] to a legislative committee improper governmental activities.” Labor Code section 1102.5 precludes employer retaliation against an employee for various acts, including “disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” Tameny holds that an employer cannot discharge an employee for refusing to participate in an illegal act. (Tameny, at p. 178.) As asserted by plaintiff, these claims share the element that defendants’ negative employment actions must have been motivated by concern for plaintiff’s speaking out about the misconduct of the Bar Court judges.
Ruling on summary judgment, the district court considered at length plaintiff’s claim that the negative employment actions were motivated, in whole or in part, by retaliation against him as a result of his complaints about the State Bar judges and his decision to report those complaints to other governmental agencies. (Konig v. Dal Cerro, supra, 2005 U.S.Dist. Lexis 24560.) The district court concluded, “The evidentiary record before the Court does not support a finding that the reasons offered by Defendants for taking the actions they did were [a] pretext for retaliation. . . . Plaintiff offers only generalities to support his pretext argument, claiming that because he was treated poorly around the time he submitted complaints about judicial misconduct, the events must be connected. In light of the totality of the record, . . . the Court finds plaintiff has failed to marshal significant and probative evidence sufficient to avoid summary judgment.” (Id. at **70–71; see also id. at *67 [“Plaintiff has not presented evidence that demonstrates that Defendants’ proffered justifications are pretext for retaliation”].) In other words, the district court found that plaintiff was unable to provide any evidence that defendants’ decisions were made in retaliation for his statements about the Bar Court judges, other than that the negative employment actions occurred about the same time that he made the statements, and the court found the coincidence of timing insufficient to raise a material issue of fact as to motive. The district court’s factual finding that defendants did not take adverse employment actions against plaintiff in retaliation for his statements about judicial misconduct precludes plaintiff from relitigating the issue of defendants’ motive in disciplining him. Because such a retaliatory motive is an essential element of a claim under Government Code section 9149.23, Labor Code section 1102.5, and Tameny, the federal judgment precludes plaintiff’s assertion of his claim of retaliation in this lawsuit against all defendants.
Although the district court’s findings as to motive were made in the context of claims against the individual defendants acting in their individual capacities, any claim against the State Bar or the individual defendants acting in their official capacities necessarily must be based on the same conduct—that is, on the actions of the individual defendants, regardless of capacity. Accordingly, collateral estoppel applies not only to the retaliation claims against the individual defendants acting in their individual capacities, but also to claims against the State Bar and against the individual defendants acting in their official capacities.
Plaintiff argues that unlike section 1983, these statutes require him to show only that retaliation was a “ ‘contributing factor’ ” to the employment decision, not a “ ‘substantial or motivating’ factor,” as required in a section 1983 claim, and that the state statutes place a burden of clear and convincing evidence on defendants. Defendants make a plausible argument that the two causation standards are, in practice, indistinguishable, but we view it as a moot point on this record.
Plaintiff is correct in arguing that “[a]s a general rule, issue preclusion, unlike claim preclusion, ‘may be defeated by shifts in the burden of persuasion or by changes in the degree of persuasion required.’ [Citations.]” (Dias v. Elique (9th Cir. 2006) 436 F.3d 1125, 1129.) When the preclusive judgment has been rendered after a jury trial, it must be assumed that the jury reached its conclusion on the basis of the minimum required quantum of proof. The district court, however, decided a motion for partial summary judgment, concluding that “Plaintiff has failed to demonstrate that there is a genuine issue of material fact regarding whether any adverse employment action Defendants took was motivated by Plaintiff’s protected speech.” (Konig v. Dal Cerro, supra, 2005 U.S.Dist. Lexis 24560, at **71–72.) Plaintiff’s failure even to raise a material issue of fact regarding defendant’s motive indicates that he was unable to present credible evidence that retaliation played any role in defendants’ actions, let alone that retaliation was a “substantial” or “contributing” factor.
Because plaintiff was unable to present evidence supporting his prima facie burden, his argument that defendants waived the affirmative defense of demonstrating they would have acted identically regardless of plaintiff’s protected activities, even if correct, is irrelevant.
Similarly, plaintiff’s failure to present any material evidence to support his claim necessarily means that defendants proved by clear and convincing evidence that they were not motivated by retaliation. Because plaintiff had a full and fair opportunity and a compelling incentive to present evidence supporting his claims, and yet failed to come forward with any evidence of substance, it would undercut the goals of “ ‘preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation’ ” to permit him a second chance merely because his second action might present a somewhat lower bar of proof. (In re Baldwin (9th Cir. 2001) 249 F.3d 912, 919–920, quoting Lucido v. Superior Court (1990) 51 Cal.3d 335, 343.) It is plain that plaintiff failed to clear either bar.
Plaintiff also contends that the nature of the speech for which he was allegedly subject to retaliation differs under each standard. That is, the speech protected by the First Amendment is not necessarily the same as the speech protected by Government Code section 9149.23 and Labor Code section 1102.5. It is clear, however, that the district court considered all of the speech for which defendant claimed retaliation—in general terms, his communications about the conduct of the State Bar judges—to be protected by the First Amendment.
2. Wrongful Discharge (Breach of Contract)
The same reasoning applies to plaintiff’s claim for wrongful discharge under his employment contract. Plaintiff alleges that “Defendant STATE BAR breached the MOU and total employment agreement by constructively discharging Plaintiff for false, pretextual and defamatory reasons in retaliation for his reports and complaints.” The subsequent paragraph lists the various negative employment actions taken against plaintiff that are discussed in the district court’s decision, together with the allegation that these adverse actions had no good cause but were motivated by retaliation. As discussed above, the district court held that there was no evidence that plaintiff’s discharge was for pretextual reasons, rather than the performance-related reasons given by defendants at the time. Accordingly, plaintiff is collaterally estopped from attempting to prove the breach of contract that is central to his claim—that he was discharged for false reasons.
Plaintiff argues that a breach of contract claim “is incredibly fact specific” and for this reason should be “left to the jury.” While this may well be true as a general statement, it does not foreclose the application of collateral estoppel where, as here, there has been a prior adjudication of an issue necessary to success on the claim of breach.
3. Defamation
Defendants do not appear to contend that plaintiff’s cause of action for defamation is barred by collateral estoppel, and we find no basis for such an argument. There is no doubt the district court held, in general terms, that defendants believed plaintiff’s work performance to be substandard and that defendants had nonpretextual grounds, largely plaintiff’s insubordination, for taking negative employment actions against him. The district court does not appear to have been asked, however, to evaluate the truth of the vast majority of the statements made by defendants in the course of their evaluations that plaintiff alleges in his state complaint to have been false and defamatory. Because the district court did not purport to adjudicate the truth of these statements, we find no basis for applying collateral estoppel to prevent plaintiff from pursuing his claim for defamation.
It is possible that the district court did adjudicate the truth of some of the allegedly defamatory statements cited by plaintiff in his state complaint. We have not been asked to, and have not, made a point-by-point comparison of the federal decisions and the state complaint to determine whether such limited factfinding occurred. We hold only that the cause of action as a whole is not barred by collateral estoppel.
Defendants argue that the defamation claims are barred because plaintiff failed to present them to the State Bar under the Tort Claims Act. It is true that plaintiff’s Tort Claims Act submissions, which have been made part of the record, are oriented toward retaliation and do not list separately the various statements that he now claims to be defamatory. The submissions do, however, contain a very detailed account of the facts underlying his lawsuit. The Tort Claims Act does not require that submissions contain even the modest specificity required of a legal pleading: “The claim, however, need not specify each particular act or omission later proven to have caused the injury. [Citation.] A complaint’s fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an ‘entirely different set of facts.’ [Citation.] Only where there has been a ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim’ have courts generally found the complaint barred. [Citation.] Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint. [Citation.]” (Stockett v. Association of Ca. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447 (Stockett).)
Judged by this standard, plaintiff’s submissions adequately disclosed the basis for his defamation causes of action. He provided a general account of the facts and circumstances on which his claim was based, mentioning “injury . . . to reputation” as one of the injuries he was asserting. His defamation claim is based on exactly the same set of documents and statements on which his retaliation claim is premised, rather than “ ‘acts or omissions committed at different times or by different persons than those described in the claim.’ ” (Stockett, supra, 34 Cal.4th at p. 447.) Given the large number of statements made over an extended period of time, it is unrealistic and unnecessary for plaintiff to have listed each purportedly defamatory statement in his Tort Claims Act submission.
Crow v. State of California (1990) 222 Cal.App.3d 192, relied on by defendants, does not dictate a different result. In Crow, the plaintiff attempted to assert a contract or tort cause of action premised on breach of a dormitory contract at his state university. His claims act submission, however, did not mention that he was even a student at the university, let alone that he was a resident at the dormitory. (Id. at pp. 201–202.) Here, plaintiff’s submission made very clear that false and harmful things were said about him and that his claims were premised, in part, on that harm.
C. Claim for Intentional Infliction of Emotional Distress
We do not consider plaintiff’s claim for infliction of emotional distress under the doctrine of collateral estoppel because, as discussed below, we find the claim barred by the exclusive remedy of workers’ compensation.
Defendants raise several separate legal grounds for dismissal of the intentional infliction of emotional distress claim that are not based on the preclusive effect of the federal judgment. We address only the argument that workers’ compensation is the exclusive remedy for plaintiff’s injuries, which we find dispositive.
“There are several essential conditions to an employer’s liability to an employee under the workers’ compensation law. [Citation.] Where those ‘conditions of compensation’ concur, the right to recover such compensation is generally the employee’s exclusive remedy against his or her employer.” (Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1, 9–10, fn. omitted; Lab. Code, §§ 3600 & 3601, subd. (a).) The basis for the exclusive remedy rule is the “presumed ‘compensation bargain,’ pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.)
The courts have recognized, however, “that certain types of injurious employer misconduct remain outside this bargain. There are some instances in which, although the injury arose in the course of employment, the employer engaging in that conduct ‘ “stepped out of [its] proper role[]” ’ or engaged in conduct of ‘ “questionable relationship to the employment.” ’ [Citation.]” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708.) The Supreme Court articulated this principle most fully in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 (Cole). The complaint in Cole alleged that the employer took disciplinary action against the plaintiff on false pretexts because of his union activities. (Id. at p. 152.) Affirming the grant of a demurrer to a cause of action for intentional infliction of emotional distress, the court enunciated the following rule: “[W]hen the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.” (Id. at p. 160.) Such misconduct “can be expected to occur with substantial frequency in the working environment. Some harassment by superiors when there is a clash of personality or values is not uncommon. Disciplinary hearings and demotions and friction in negotiations as to grievances are also an inherent part of the employment setting . . . .” (Id. at p. 161.)
While Cole held that performance-related harassment by supervisors is a normal risk of employment, it has been held that emotional distress caused by such conduct as spoliation of evidence (Gomez v. Aquistapace (1996) 50 Cal.App.4th 740, 751), physical disability-based discrimination (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492), fraudulent misrepresentations made to induce employment (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 972), false imprisonment committed by an employer against an employee (Fermino v. Fedco, Inc., supra, 7 Cal.4th at p. 723), and the broad dissemination of adverse performance criticism (Operating Engineers Local 3 v. Johnson (2003) 110 Cal.App.4th 180, 190 (Operating Engineers)) was outside the compensation bargain and therefore not subject to the exclusive remedy provisions of workers’ compensation. This is generally true of any injury due to negative employment actions that are taken in violation of public policy. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1100, overruled on other grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6.)
We assume that a negative employment action motivated by retaliation for an employee’s efforts to report unethical or improper judicial behavior would fall outside the exclusive remedy provisions of workers’ compensation because such conduct violates public policy. (Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1100.) However, as discussed at length above, the collateral estoppel effect of the district court’s decision precludes any claim that defendants’ actions were so motivated.
Outside of the allegation of retaliatory motive, plaintiff’s complaint alleges only the type of purportedly performance-based negative employment actions “which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances.” Claims of injury based on such actions are barred by the exclusive remedy provisions of workers’ compensation. (Cole, supra, 43 Cal.3d at p. 160.)
Although the complaint alleges that some of the criticisms of plaintiff became public, there is no allegation that the criticism was made in the type of humiliating public forum found to be outside the compensation bargain in Operating Engineers. (Operating Engineers, supra, 110 Cal.App.4th at p. 184.) Even as to that conduct, the court in Operating Engineers found the issue to be a “close question” and expressed “some discomfort” with its decision (id. at pp. 189, 191), restricting its holding to “extreme” cases of dissemination of personal information. (Id. at p. 190.) We are not inclined to expand Operating Engineers outside its narrow factual context.
III. DISPOSITION
To summarize the conclusions reached above:
1. The doctrine of res judicata bars all claims against the individual defendants acting in their individual capacity.
2. The doctrine of collateral estoppel bars the assertion of the first and second causes of action in the amended complaint, for wrongful constructive discharge and retaliation, against all defendants.
3. The fourth cause of action, for intentional infliction of emotional distress, alleges no conduct outside the exclusive remedy provisions of workers’ compensation other than retaliation. To the extent this claim is based on retaliation, it is barred as against all defendants by the doctrine of collateral estoppel.
Accordingly, the trial court’s grant of judgment on the pleadings as to the first, second, and fourth causes of action is affirmed as to all defendants. Because the doctrine of res judicata bars the third cause of action, for defamation, as against the individual defendants acting in their individual capacities, the trial court’s ruling on that cause of action is affirmed as to those defendants. The trial court’s grant of judgment on the pleadings is reversed only as to the third cause of action as against the State Bar and the individual defendants acting in their official capacities.
The parties shall bear their own costs.
We concur: Marchiano, P.J., Swager, J.