Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YC052317, Cary H. Nishimoto, Judge.
Ahsan Mohiuddin, in pro. per., for Plaintiff and Appellant.
Carpenter, Rothans & Dumont, Louis R. Dumont, David G. Torres-Siegrist and Justin Sarno for Defendant and Respondent.
ASHMANN-GERST, J.
Ahsan Mohiuddin (appellant) challenges a trial court order sustaining the demurrer of respondent City of Gardena (the City) without leave to amend and dismissing appellant’s complaint. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Claim for Damages
This action arises out of appellant’s claim for damages following a June 2002 fire that occurred at the residential hotel where he resided. To initiate this litigation, on December 9, 2002, appellant filed a claim for damages with the City. His claim was rejected on January 24, 2003.
First Action
On July 18, 2003, appellant filed a complaint against the City. He later filed a first amended complaint, alleging that he had rented a room at the “‘Executive Inn,’” a residential hotel. According to the verified first amended complaint, the City negligently maintained the facility. In June 2002, a fire broke out, resulting in the facility being partially destroyed and closed for occupancy. Appellant allegedly suffered personal injuries, relocation expenses, mental distress, and property damage.
The City demurred to appellant’s first amended complaint, and on March 16, 2005, the trial court (Hon. Ramona G. See) sustained the demurrer without leave to amend. Appellant’s action was dismissed without prejudice, and the trial court order judgment to be entered in favor of the City. On November 17, 2005, appellant’s appeal of that order was dismissed as untimely.
Instant Action
On December 23, 2005, appellant filed the instant verified complaint, again alleging that he rented a unit at the “‘Executive Inn,’” until June 2002, when the facility suffered a fire and was closed for occupancy. He claims that the City negligently maintained the facility. He seeks damages for physical injuries and emotional distress, statutory damages, as well as damages for defamation and interference with prospective economic gains as a result of his “homelessness and . . . his inability to show an address and telephone of his own.” He also seeks a declaratory judgment.
The City demurred to appellant’s complaint, arguing, inter alia, that appellant’s claims were barred by the doctrine of res judicata and, alternatively, were time-barred.
Over appellant’s opposition, the trial court sustained the City’s demurrer without leave to amend. It found that appellant’s complaint was barred by the doctrine of res judicata. The trial court also determined that even if appellant could “refile the same complaint,” appellant’s claims were “barred by the statute of limitations as this action does not relate back to the prior complaint. [Appellant’s] allegations and attempt to interject new allegations are barred by the statute of limitations. [Government Code section] 911.2 requires a claimant to file a claim for damages no later than six months after the accrual of the cause of action. Once denied or deemed denied, [appellant] has six months to file suit. [Government Code section] 945.6 [subdivision] (a)(1). [Appellant] alleges that his claim was rejected on 1.24.03 but did not file this action until 12.23.05.”
Following entry of an order of dismissal, appellant’s timely appeal ensued.
DISCUSSION
I. Standard of review
A demurrer tests the legal sufficiency of the pleading. (Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 841–842 (Friedland).) It therefore properly is sustained only if the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459 (City of Atascadero).) “On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.]” (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) We interpret the complaint reasonably in an effort to attain substantial justice. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966–967 (Aubry); Friedland, supra, at p. 842.) “Although a demurrer makes no binding judicial admissions, it provisionally admits all material issuable facts properly pleaded, unless contrary to law or to facts of which a court may take judicial notice.” (City of Atascadero, supra, at p. 459.) Thus, “other relevant matters which are properly the subject of judicial notice may be treated as having been pled.” (Friedland, supra, at p. 842.) A demurrer does not admit contentions, deductions, or conclusions of fact or law contained in the challenged complaint. Where factual issues are in dispute, the reviewing court assumes the truth of all properly pleaded facts, as well as those facts that may be implied or inferred from the express allegations of the complaint. (City of Atascadero, supra, at p. 459.) We must affirm the order of dismissal if any stated ground for the demurrer has merit. (Lee v. Bank of America (1990) 218 Cal.App.3d 914, 922.) If the plaintiff has stated a cause of action under any possible legal theory, it is error to sustain the demurrer. It similarly is an abuse of discretion to sustain a demurrer without leave to amend where a plaintiff demonstrates a reasonable possibility of curing the defective pleading by amendment. (Aubry, supra, at p. 967.)
II. Appellant’s complaint is barred by the doctrine of res judicata
“The doctrine of res judicata precludes the relitigation of certain matters which have been resolved in a prior proceeding under certain circumstances. [Citation.] Its purpose is ‘to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation.’ [Citations.] [¶] The doctrine has two aspects. It applies to both a previously litigated cause of action, referred to as claim preclusion, and to an issue necessarily decided in a prior action, referred to as issue preclusion. [Citations.] The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]” (Brinton v. Bankers Pension Services Inc. (1999) 76 Cal.App.4th 550, 556.)
The defense of res judicata may be resolved on demurrer. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 324.)
With these principles in mind, we readily conclude that appellant’s action is barred by the doctrine of res judicata. First, the causes of action are duplicative: appellant seeks damages that he allegedly suffered as a result of relocating from the Executive Inn following a fire that rendered the building uninhabitable.
Appellant urges us to reverse on the grounds that he titled the causes of action in the two pleadings differently. We cannot do so. Even though a cause of action is titled differently or a new “theory” is raised, the doctrine of res judicata prevents a party from relitigating the same “issue” or “primary right” raised in prior litigation. (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1427; see also Lincoln Property Co., N.C. , Inc. v. Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 912–913.) One cannot “split” a primary right into different legal theories or different causes of action. When there is only one primary right, an adverse judgment in the first suit is a bar, even though the second suit is based on a different theory or seeks a different remedy. (Lincoln Property, supra, at p. 913; see also Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897 [noting that the doctrine of res judicata promotes judicial economy by ensuring that “all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date”]; Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245 [‘“Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief”’].)
For the same reasons, the fact that appellant has added causes of action to the instant complaint that were not alleged in the first action does not compel a different analysis. It is well-established that the doctrine of res judicata applies to claims that not only were litigated, but also could have been litigated. (Pollock v. University of Southern California, supra, 112 Cal.App.4th at p. 1427 [noting that the doctrine applies to a matter that the party had an opportunity to litigate in a prior lawsuit, “‘and should not be permitted to litigate [] again to the harassment and vexation of [the party’s] opponent’”].) Because all claims alleged in both the first action and the instant action arise out of the same facts, any purportedly new causes of action could have been litigated previously and are thus barred.
Second, the prior proceeding resulted in a final judgment on the merits. Appellant’s action was dismissed following the trial court’s order sustaining the City’s demurrer without leave to amend. His appeal was dismissed as untimely and a remittitur issued. Thus, that order is final.
Appellant does not argue that the trial court’s (Judge See) order sustaining the demurrer was not “on the merits.” An appellate court presumes that the judgment appealed from is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We adopt all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) Appellant has the burden of overcoming the presumption of correctness, even when the appellate court is required to conduct a de novo review. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) In light of these legal principles and appellant’s failure to challenge whether the first trial court order was on the merits, we conclude that the trial court herein properly determined that it was.
Appellant avers that the order of dismissal in the first action is not “final” because his case was dismissed “without prejudice.” We are not persuaded. “[T]he character of the judgment . . . determines whether it is res judicata.” (Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 54; see also In re Lauren P. (1996) 44 Cal.App.4th 763, 768 [dismissal order labeled “without prejudice” was res judicata because it followed a trial on an issue of fact and was on the merits].) Here, the trial court sustained the City’s demurrer to appellant’s first amended complaint in the prior action, a ruling that we presume was made on the merits. As such, it is final for purposes of res judicata.
Third, the parties are the same in the present lawsuit as in the prior lawsuit. (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 896.)
Accordingly, appellant’s action is barred by the doctrine of res judicata, and the trial court properly sustained the City’s demurrer without leave to amend.
III. Appellant’s complaint is time-barred
Even if appellant’s lawsuit were not barred by the doctrine of res judicata, his claims would nevertheless be barred pursuant to the statute of limitations.
In actions against public entities, a plaintiff is required to comply with the provisions of the California Government Tort Claims Act. Specifically, a plaintiff must file a claim for damages with the public entity “not later than six months after the accrual of the cause of action.” (Gov. Code, § 911.2.) The public entity then has 45 days to act upon the claim. (Gov. Code, § 912.4.) When the public entity provides written notice of the rejection, the plaintiff then has six months to file a lawsuit. (Gov. Code, § 945.6, subd. (a)(1); County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267–1268.)
Here, appellant filed his claim on December 9, 2002. His claim was rejected on January 24, 2003. Because he did not initiate this lawsuit until December 23, 2005, more than six months after his claim was rejected, this action is time-barred.
Appellant argues that this action is timely. His analysis appears to be as follows: His government claim was rejected on January 24, 2003; thus, he had until July 24, 2003, to initiate a lawsuit. (Gov. Code, § 945.6, subd. (a)(1).) He filed his first complaint on July 18, 2003, six days prior to the expiration of the statutory period. That filing “stopped the ticking” of the six-month statutory period in which to file a complaint. That lawsuit was not resolved until January 30, 2006, when the Court of Appeal issued its remittitur in the first action. Because this action was filed before the remittitur was issued, and therefore before the six-month statute of limitations clock resumed “ticking” (and his six remaining days ran out), this action is not time-barred.
What appellant essentially advances is an argument based upon the doctrine of equitable tolling. “Equitable tolling is a judge-made doctrine ‘which operates independently of the literal wording of the Code of Civil Procedure’ to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness. [Citations.]” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) It “has most often been applied in California when the plaintiff first files a claim before an administrative agency and then files a second proceeding after the limitation period has expired. Under these circumstances, courts have held the policy underlying the statute of limitations—prompt notice to permit complete and adequate defense—has been satisfied and that the period should be tolled in equity to preserve the plaintiff’s claim. [Citations.]” (Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674, 690.) “‘As with other general equitable principles, application of the equitable tolling doctrine requires a balancing of the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the . . . limitations statute.’ [Citation.]” (Lantzy v. Centex Homes, supra, at p. 371.)
Applying these legal precepts, it is evident that the doctrine of equitable tolling is inapplicable to the instant situation. First, appellant directs us to no legal authority for the proposition that one state court action tolls the statute of limitations for a second, nearly identical action. Second, equity weighs against appellant. Appellant suffers no injustice by application of the statute of limitations here. He had the opportunity to present his claim against the City in the first lawsuit. The fact that he did not prevail is not grounds to set aside the statute of limitations and let him try to pursue his claims again.
DISPOSITION
The judgment of the trial court is affirmed. The City is entitled to costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.