Opinion
A142053
01-26-2017
ASHWIN NANDA, Plaintiff and Appellant, v. WESTERN DENTAL SERVICES, INC. et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC12523941)
The plaintiff in this employment discrimination suit stipulated in federal court to dismiss his similar federal lawsuit with prejudice as a condition of having a federal district court judge remand this lawsuit back to state court where it originated. He now appeals from a judgment entered against him on remand, after the trial court granted judgment on the pleadings for the defendants on the ground the dismissal of the federal action operated as a bar under principles of res judicata to continued pursuit of this action.
The defendants' position concerning the application of res judicata in this case can be summed up in six words: "Heads I win, tails you lose." Ours, in two: We reverse.
BACKGROUND
On September 4, 2012, appellant Ashwin Nanda initiated this employment discrimination action against his former employer, Respondents Western Dental Services, Inc., Abdullah Munsaf and Andre Azarinfar (collectively, Western Dental), by filing a complaint in San Francisco Superior Court. Two days later, on September 6, 2012, he filed another employment discrimination action against the same parties in federal district court under Title VII of the Civil Rights Act of 1964. The parties agree it was largely identical to this action. Western Dental then removed this action to federal district court based upon federal question jurisdiction, because it too alleged a claim under Title VII. Once in federal court, Western Dental then sought and obtained an order relating this action to the federal action under local rules of the federal district court.
Subsequently, while both actions were pending in federal court, Nanda filed an amended complaint in this action eliminating his federal claim. He then moved to remand this case back to state court, while Western Dental simultaneously moved to dismiss it on the merits.
At the combined hearing in federal court on both motions on September 18, 2013, the parties stipulated to a dismissal of the federal action with prejudice. They did so orally, on the record, at the end of the following lengthy colloquy with the district court (italics added):
"THE COURT: . . . Now, there was a prior motion in the case, I believe we had a hearing in May. And I denied the motion to remand, and that was largely because there was a federal cause of action in the complaint. You have amended the complaint now. You were granted [sic] to do so. And the amended complaint no longer asserts a federal cause of action; is that correct?
"DR. NANDA: That is right, your Honor.
"THE COURT: So you're moving to remand because there's no longer any federal cause of action in the case that was originally removed here; correct?
"DR. NANDA: That is right, your Honor.
"THE COURT: All right. With regard to the other case, I also believe I told you at the time of the hearing that because you have another almost identical case that you filed in the first instance in this court that that would be a strong reason to keep the other case here so that they're not proceeding on different tracks. [¶] You indicated that it was your intent to dismiss the federal case; is that correct?
"DR. NANDA: That is right, your Honor.
"THE COURT: I looked on the [docket] and you have not done so.
"DR. NANDA: I've got a stipulation to dismiss, your Honor, prepared today if the remand is harboring [sic] on that itself.
"THE COURT: And have you discussed that with opposing counsel?
"DR. NANDA: No, I have not discussed that as of yet. I'm ready to dismiss it based on the remand if that goes through.
"THE COURT: Okay. Short of a stipulation between the parties, you would need an order of the Court in order to dismiss, because I believe you have answered in that case, have you not?
"[DEFENSE COUNSEL]: We filed a motion to dismiss, your Honor.
"THE COURT: You didn't file an answer earlier?
"[DEFENSE COUNSEL]: In the federal court case, we did. I thought you were talking about the state court case. The federal court case we had filed
"THE COURT: That's what we're talking about now, whether or not it's going to be dismissed, because that was one of the reasons why I didn't grant your motion to remand. There was still a federal claim on the same issue pending. If that case doesn't exist on this court's docket, then there might not be a reason to keep the case originally filed in state court. [¶] But we don't need two cases on the same subject, and you don't need to be proceeding in two different venues. That's the real issue here. [¶] Are you willing to enter into a stipulation of the dismissal of the federal case?
"[DEFENSE COUNSEL]: With this caveat, your Honor. This plaintiff has filed, I think, four different cases in four different forums against my client. And so what I would ask is that we never again have a chance—if your inclination is to remand because that case is dismissed, then we never again have a chance to be back here in federal court on some Title 7 claim. [¶] My concern is that it's entirely possible given the litigious nature here that he may file or refile a case in this court or some other court having a Title 7 claim in it in some fashion. So if we could dismiss that case that was originally filed in federal court and dismiss the Title 7 claim with prejudice, then I would be inclined to agree to stipulation.
"THE COURT: Well, if the case that was filed here is going to be dismissed, it's going to be dismissed with prejudice. He's not going to be able to come back on the same claim. And certainly since he's got another action in state court, pending in state court, on this same claim, he can proceed in the Superior Court on that claim. There's no longer a Title 7 claim. [¶] But the Title 7 action based upon the same events would be with prejudice.
"[DEFENSE COUNSEL]: If that's with prejudice and the Court is—if I'm reading the Court correctly, is that the other arguments that we made in our papers, that you will exercise your discretion to keep this case having to do with the initial disclosures, having to do with the discovery that has been propounded that has to do with this case in federal court, then, yes, I would agree to a stipulation that the federal action, when it was originally filed in federal court, be dismissed with prejudice as a condition, if you will, of remanding this case back to state court.
"THE COURT: Well, it certainly is my inclination to try to narrow this dispute. I don't know about the other causes of action or other claims that you say are pending. There are two on my docket, and there only needs to be one. And since Dr. Nanda filed in state court, initially, at least about the issues that arise in this complaint, it's his chosen forum, I'm going to let him go back.
"[DEFENSE COUNSEL]: Fair enough, your Honor.
"THE COURT: All right. I need this stipulation signed by both parties here today.
"[DEFENSE COUNSEL]: Do you want us to step outside?
"THE COURT: No, just sign it here, make sure it says, 'It's a dismissal with prejudice.'
"DR. NANDA: 'With prejudice'; right, your Honor? Should we submit both copies or one? [¶] . . . [¶]
"THE COURT: May I see? Okay. You both initialed that, so it's clear that it's with prejudice, so you cannot refile on this Title 7 claim in U.S. District Court.
[¶] . . . [¶]
"[DEFENSE COUNSEL]: Just for clarification, your Honor, and as I said it, the Court is going to remand 13-390, which is the case that was removed?
"THE COURT: Right.
"[DEFENSE COUNSEL]: And dismiss with prejudice the case that was filed directly in this court, which is 12-4654?
"THE COURT: Yes.
"[DEFENSE COUNSEL]: Okay.
"THE COURT: Yes. That takes care of it. We'll take care of the order on remand.
"[DEFENSE COUNSEL]: Thank you for your time.
"DR. NANDA: Thank you, your Honor. I appreciate it.
"THE COURT: You're welcome.
"(Adjourned)."
The executed stipulation dismissing the federal action with prejudice was filed. The district court then entered an order, which again we quote at some length, granting Nanda's motion to remand this case to state court and terminating Western Dental's motion to dismiss as moot (italics added):
"This litigation has undergone two changes recently that militate in favor of granting the motion to remand. [¶] First, plaintiff has filed an amended complaint dropping all federal claims in case no. 13-0390. When defendants removed case no. 13-0390 to this court in January of this year, there was a Title VII discrimination claim pending. The Title VII claim provided this court federal question jurisdiction and the basis by which it might adjudicate the rest of the case pursuant to supplemental jurisdiction. When plaintiff filed an amended complaint in July of this year asserting only state law causes of action, the federal question this court was to resolve disappeared. [¶] . . . . Now that plaintiff asserts only claims based in California state law in this case, comity supports allowing a California state court to adjudicate those claims. Moreover, remand is a fair outcome for a plaintiff who has dropped all his federal law claims in an effort to get back to state court.
"The second change occurred at the hearing on September 18, 2013 when the parties stipulated to dismiss with prejudice case no. 12-4654. This change bears on whether it would serve economy and convenience for this court to retain jurisdiction. Defendants previously persuasively argued that permitting two cases concerning the same facts and same parties to proceed contemporaneously with one in federal court and the other in state court would be inefficient and inconvenient. But the dismissal of case no. 12-4654 renders this argument moot. Economy and convenience no longer support this court retaining jurisdiction.
"In sum, plaintiff now has a single case that alleges claims derived purely from state law. The court respects plaintiff's wish to litigate in state court, and respects that California state courts are well-suited to apply California law. There is now nothing to separate this case from the usual case in which all federal law claims disappear before trial. Remand is therefore appropriate."
After the action was remanded, Western Dental moved for judgment on the pleadings, contending the dismissal with prejudice of the parallel federal action operated as res judicata, barring all claims in this case. The trial court granted the motion without leave to amend, over Nanda's objection, among others, that action had been remanded to state court to be heard on its merits and stating in a declaration that "[i]t was my intention to dismiss the Federal Case, and proceed with my State case once it was remanded back to the Superior Court." In other words, he objected that the very point of dismissing the federal action was to permit continued suit in state court.
This timely appeal from the resulting judgment followed.
DISCUSSION
Nanda's appellate briefing is lengthy, dense and at junctures difficult to follow. He makes a number of contentions we will not consider because they are unintelligible, not properly captioned under any argument heading, and/or unsupported by cogent legal argument, authority and/or analysis. All such issues are abandoned, including the propriety of a $1,040 discovery sanction imposed against Nanda after Western Dental's motion for judgment on the pleadings had been granted but before entry of judgment. (See Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 150; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.) The one point readily gleaned from the briefing, though, is Nanda's contention Western Dental acquiesced in the splitting of his claims under the circumstances and so res judicata does not apply. We agree.
The record also is not sufficient for us to review that ruling, because it does not contain the underlying motion papers pertaining to the sanctions, nor an official transcript of the January 8, 2014 hearing on the motion. "It is well settled . . . that a party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Without a record of what actually occurred below, we cannot evaluate whether the trial court erred. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362; see also Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136.)
We review the trial court's order granting judgment on the pleadings de novo. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298.) In reviewing the ruling, we also may consider matters subject to judicial notice. (Ibid.)
Below, Western Dental requested judicial notice of various records of the federal district court (specifically, Nanda's complaint in the federal action, the district court's order relating the two cases, the amended complaint Nanda filed in this case after removal, and the district court's remand order), and also the local rules of the district court concerning related cases. Although the trial court did not rule on Western Dental's request, we may and do take judicial notice of those materials. (See Evid. Code, §§ 453, 459, subd. (a).)
In opposition to the motion, Nanda filed a declaration attaching a copy of the certified September 18, 2013 hearing transcript and a second copy of the remand order. Western Dental objected to the transcript on the ground it wasn't properly authenticated (Evid. Code, § 1413), but the record reflects no ruling on the objection and, at any rate, the trial court's order granting Western Dental's motion states it was entered "[a]fter full consideration of the evidence." So we presume the trial court considered it. And properly so. Because the document was a copy of a certified transcript, Western Dental's objection had no merit. (See Santa Clarita Organization for Planning & Environment v. Castaic Lake Water Agency (2016) 1 Cal.App.5th 1084, 1104 ["[i]n admitting a transcript, a court is to look to its accuracy and whether it is certified"].)
On appeal, Nanda has included other records from the federal district court in the appellant's appendix, improperly, but having given the parties notice before argument that we were considering it, we now take judicial notice of two of them (Western Dental's August 11, 2013 motion to dismiss this case while it was still pending in federal court, and the transcript of proceedings held on May 1, 2013, concerning Nanda's initial remand motion). (See Evid. Code, §§ 452, subd. (d), 455, subd.(a) 459, subds. (a), (c); Louie v. BFS Retail & Commercial Operations LLC (2009) 178 Cal.App.4th 1544, 1554 (Louie).)
Nanda asserts, and Western Dental appears to assume, that federal law controls this question. Here, the only cause of action asserted in the federal action was a Title VII claim, and "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; accord, Hardy v. America's Best Home Loans (2014) 232 Cal.App.4th 795, 805; Louie, supra, 178 Cal.App.4th at pp. 1553-1554; see also Heck v. Humphrey (1994) 512 U.S. 477, 488, fn. 9 ["[s]tate courts are bound to apply federal rules in determining the preclusive effect of federal-court decisions on issues of federal law"].) As has been previously noted, however (see Louie, at pp. 1554, fn. 5), there is contrary authority. (See Gamble v. General Foods Corp. (1991) 229 Cal.App.3d 893, 898 [applying California law to decide preclusive effect of prior federal court judgment entered on federal anti-discrimination claims]; accord, Balasubramanian v. San Diego Community College Dist. (2000) 80 Cal.App.4th 977, 991; Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 648.) But it is unnecessary to resolve this tension, because both federal and state law dictate the same result here.
Section 26 of the Second Restatement of Judgments provides, in part, that the general rule against claim splitting does not apply when "[t]he parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein." (Rest.2d Judgments, § 26, subd. (1)(a).) Comments to the Restatement illuminate its rationale: "A main purpose of the general rule [against claim splitting] is to protect the defendant from being harassed by repetitive actions based on the same claim. The rule is thus not applicable where the defendant consents, in express words or otherwise, to the splitting of the claim." (Id., com. a, p. 235.) Thus, "[t]he parties to a pending action may agree that some part of the claim shall be withdrawn from the action with the understanding that the plaintiff shall not be precluded from subsequently maintaining an action based upon it. The agreement will normally be given effect." (Ibid.) And even without an express agreement, a defendant may still acquiesce through inaction: "Where the plaintiff is simultaneously maintaining separate actions based upon parts of the same claim, and in neither action does the defendant make the objection that another action is pending based on the same claim, judgment in one of the actions does not preclude the plaintiff from proceeding and obtaining judgment in the other action. The failure of the defendant to object to the splitting of the plaintiff's claim is effective as an acquiescence in the splitting of the claim." (Ibid.)
Nanda cites a decision by the United States Court of Appeals for the First Circuit that is closely on point where these principles were applied. In Calderon Rosado v. General Electric Circuit Breakers, Inc. (1st Cir. 1986) 805 F.2d 1085 (Calderon Rosado), the First Circuit held that the dismissal with prejudice of a wrongful discharge action brought in the superior court of the Commonwealth of Puerto Rico did not preclude a later discrimination action brought in federal district court. The facts of Calderon Rosado are practically the mirror image of what went on here. The plaintiff filed suit in superior court alleging a claim, among others, he had been unjustly discharged without good cause in violation of Puerto Rico law. (Id. at p. 1086.) He then filed suit in federal district court alleging he had been discharged on the basis of his age in violation of federal law. (Ibid.) The plaintiff then moved in superior court to withdraw the unjust discharge claim, stating he believed his remedies under federal law were more liberal and that he was interested in litigating his dismissal in federal court. (Ibid.) The defendant responded, much like Western Dental, not by objecting to proceeding with litigation in the other forum, but by acknowledging plaintiff's desire to litigate there yet insisting a dismissal be entered with prejudice in superior court. (See ibid.) The plaintiff replied he had no objection to a dismissal with prejudice provided he could prosecute his federal claim in federal court, following which the superior court entered the dismissal with prejudice. (Ibid.) Then, armed with the dismissal with prejudice, the defendant returned to federal court where it successfully obtained dismissal of the federal action on res judicata grounds. (Ibid.)
It filed a response, stating in part, that " 'due to the notice of dismissal filed . . . whereat it is indicated that the alleged discriminatory dismissal shall be litigated under [federal law] . . . then understand that the dismissal of said cause of action under [Puerto Rico law] shall be with prejudice . . . .' " (Calderon Rosado, supra, 805 F.2d at p. 1086.)
Notwithstanding that under Puerto Rico law, a voluntary dismissal with prejudice operates as an adjudication on the merits and bars a party from relitigating the same cause of action, the First Circuit held the dismissal with prejudice in these circumstances did not preclude continued litigation in the plaintiff's chosen forum (there, federal court), and it vacated the dismissal. (Calderon Rosado, supra, 805 F.2d at pp. 1086-1087). The import of what went on, it said, "was that defendant did not object to proceeding with the [federal] action in federal court, but wanted the particular [Puerto Rico] action to be disposed of once and for all by having it dismissed with prejudice." (Id. at p. 1086.) The court said it was "clear" the plaintiff never expected his voluntary dismissal with prejudice of the claim under Puerto Rico law would bar him from litigating his federal claim. (Id. at p. 1087.)
Relying on section 26(1)(a) of the Restatement, the First Circuit held defendant had acquiesced in plaintiff's maintenance of the second lawsuit in these circumstances. It explained: "a recognized exception to the general rule prohibiting claim splitting is that if the parties agree, or a defendant implicitly assents, to a plaintiff splitting his claim, then a judgment in an earlier action which normally would bar the subsequent action will not. See Restatement (Second) of Judgments § 26(1)(a) (1982) (normal res judicata rules do not apply if the 'parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein'). And a defendant consents or acquiesces when he fails timely to object. Restatement (Second) of Judgments § 26, comment a, illustration 1, gives as an example of acquiescence, a defendant who, while two actions on parts of the same claim are pending, fails to object to the claim splitting. If, after judgment enters on one of the two, the defendant then moves to dismiss the second on res judicata grounds, the motion should be denied, the Restatement indicates. The rationale is that a main purpose behind res judicata principles is to protect a defendant from the harassment of multiple actions. A defendant who fails timely to complain waives the benefit." (Calderon Rosado, supra, 805 F.2d at p. 1087.)
The First Circuit concluded that is what had occurred. (Calderon Rosado, supra, 805 F.2d at p. 1087.) It reasoned that "[w]hile the two actions were pending against defendant, defendant did not complain that plaintiff was splitting his cause of action and forcing defendant to defend in two forums. And when plaintiff made it clear that he was voluntarily dismissing his . . . action [under Puerto Rico law] only because he intended to litigate his discharge in federal court, defendant did not object at all to this manner of proceeding. Rather, apparently agreeing that the [federal anti-discrimination] litigation take place in federal court, defendant waited until after the dismissal before raising a claim splitting objection. That was too late." (Ibid.) It concluded, "[t]he waiver principle embodied in the Restatement (Second) of Judgments § 26(1)(a) (1982), applied to defendant who, seemingly agreeing to plaintiff's desire to litigate in federal rather than Commonwealth court, asked only that the . . . claim [under Puerto Rico law] be dismissed with prejudice suggesting defendant wanted [that] theory alone to be finally disposed of . . . ." (Ibid.) The First Circuit also determined the courts of Puerto Rico would reach the same result. (See ibid.)
If anything, the circumstances here present an even clearer case of assent than Calderon Rosado. Like the plaintiff in that case, Nanda never expected the dismissal he entered into in a federal forum would result in the loss of his non-federal claims in a state forum, and made clear he was amenable to dismissing the federal action only because he wanted to litigate his discharge in state court. (See Calderon Rosado, supra, 805 F.2d at p. 1087.) Indeed, Western Dental's counsel conceded in oral argument "no doubt that [Nanda] thought the case was going back" to state court. And like the defendant in Calderon Rosado, Western Dental "did not object at all to this manner of proceeding." (Ibid.) It simply expressed the desire that Nanda's Title VII claim be finally disposed of through a dismissal with prejudice so the parties would remain out of federal court once and for all, and then it "waited until after the dismissal before raising a claim splitting objection." (See Calderon Rosado, at pp. 1086, 1087). In addition, unlike in Calderon Rosado, here the district court repeatedly indicated on the record at the hearing that the dismissal of the federal action would not impact Nanda's ability to proceed in state court, and in response defense counsel repeatedly assented. Its written order for remand unmistakably reflects the same intent. So there is even greater reason to infer acquiescence here than in Calderon Rosado.
At the beginning of the hearing, the district court asked defense counsel if he was willing to enter into a stipulation to dismiss the federal case, because "we don't need two cases on the same subject, and you don't need to be proceeding in two different venues. That's the real issue here." (Italics added.) That's when defense responded with a "caveat," that "we never again have a chance—if your inclination to remand . . . to be back here in federal court on some Title 7 claim" and stated that if the Title VII claim were dismissed with prejudice, "then I would be inclined to agree to [sic] stipulation." During the remarks that followed, the district court told defense counsel, "certainly since he's got another action in state court, pending in state court, on this same claim, he can proceed in the Superior Court on that claim. There's no longer a Title 7 claim. [¶] (Italics added.) But the Title 7 action based upon the same events would be with prejudice." Defense counsel then agreed again, stating "I would agree to a stipulation that the federal action, when it was originally filed in federal court, be dismissed with prejudice as a condition, if you will, of remanding this case back to state court." (Italics added.) The district court responded, "it certainly is my inclination to try to narrow this dispute. . . . There are two on my docket, and there only needs to be one. . . . I'm going to let him go back [to state court]." (Italics added.) Defense counsel again agreed ("Fair enough, your Honor"). The parties then executed the stipulation, and the district court concluded by announcing its effect: "You both initialed that, so it's clear that it's with prejudice, so you cannot refile on this Title 7 claim in U.S. District Court." (Italics added.) It then reiterated that it would remand this case to state court.
That intent is reflected in statements such as these: "[C]omity supports allowing a California state court to adjudicate those claims." (Italics added.) "[R]emand is a fair outcome for a plaintiff who has dropped all his federal law claims in an effort to get back to state court." (Italics added.) "[P]laintiff now has a single case that alleges claims derived purely from state law. The court respects plaintiff's wish to litigate in state court, and respects that California state courts are well-suited to apply California law." (Italics added.)
Indeed, despite the "with prejudice" language of the dismissal, the circumstances here are tantamount to an express reservation by the court of Nanda's right to proceed in state court on his state law claims. (See Rest.2d Judgments, § 26, subd. (1)(b).) According to comments to the Restatement, "[a] determination by the court that its judgment is 'without prejudice' (or words to that effect) to a second action on the omitted part of the claim, expressed in the judgment itself, or in the findings of fact, conclusions of law, opinion, or similar record, unless reversed or set aside, should ordinarily be given effect in the second action." (Id., com. b, p. 236, italics added.) And, here again, Western Dental's counsel conceded in oral argument that "I have no doubt that [the district court judge] thought the case was going back" to state court too.
Western Dental does not even address Calderon Rosado in its briefing. And at oral argument Western Dental sought to distinguish the case, but we are unpersuaded.
Western Dental argued the defendant in Calderon Rosado never objected to proceeding in two forums, but neither did Western Dental. Western Dental also argued the defendant in Calderon Rosado filed a document expressly stating it didn't object to the state court proceeding being dismissed with prejudice and plaintiff proceeding in federal court, whereas the stipulation filed here contained no such statements. But this misstates Calderon Rosado's facts (there was no such express statement (see Calderon Rosado, supra, 805 F.2d at p. 1086 and footnote 3, ante)), and at any rate is a distinction without a difference, ignoring the entire record of what went on here.
Instead, Western Dental cites Barreto-Rosa v. Varona-Mendez (1st Cir. 2006) 470 F.3d 42, a later First Circuit decision distinguishing Calderon Rosado that held, in quite different circumstances, that a plaintiff's voluntary dismissal with prejudice of an anti-discrimination action filed in Puerto Rico court did preclude a parallel federal anti-discrimination action filed in federal court. The defendant in Barreto-Rosa was held not to have acquiesced to the splitting of claims in that case because, unlike in Calderon Rosado, it made no affirmative statements acknowledging or consenting to the claim-splitting during the hearing in which the Puerto Rico action was voluntarily dismissed, and by that time had already objected in federal court to the parallel proceedings on res judicata grounds in its first responsive pleading. (See Barreto-Rosa, at pp. 44, 46-47.) Neither circumstance is true here.
The three other decisions Western Dental cites also are inapposite. Two involved no question as to whether a defendant consented to claims-splitting by expressly or implicitly assenting to the voluntary dismissal of one action in favor of continued, parallel litigation in another forum. And the facts of the third, cited for the first time during oral argument, were completely different: the defendants (unlike Western Dental) did not fail to object to the splitting of plaintiff's claims nor affirmatively consent on the record to the plaintiff doing so but, on the contrary, expressly warned the plaintiff the actions it was about to undertake would be treated as setting up a raise judicata defense. (See Riel v. Morgan Stanley (S.D.N.Y., Aug. 6, 2009, No. 06 CV 5801 (TPG)) 2009 WL 2431497, at *5-*7.) Far from supporting Western Dental, that decision highlights one of the reasons for the acquiescence doctrine, and the unfairness of what went on here: "because an objection raised prior to the entry of any final judgment puts the plaintiff on notice of the claim splitting problem and potential res judicata implications of inviting judgment against himself in one of the parallel actions. The plaintiff has the opportunity to take steps to preserve his claims by an orderly consolidation." (Id. at p. *6.) Precisely.
Samuels v. Northern Telecom, Inc. (2d Cir. 1991) 942 F.2d 834, merely gave res judicata effect to a voluntary dismissal with prejudice entered in federal court; the decision did not involve any question of consent or acquiescence. Bernardi v. Deutsche Bank Nat. Trust Co. Americas (N.D. Cal., Mar. 29, 2013, No. C-11-05453-RMW) 2013 WL 1334266, involved the res judicata effect of an involuntary dismissal on the merits of parallel state court proceedings; it held the defendant did not waive res judicata as a defense by waiting to raise it until a judgment in the state court action had become final under state law. (Id. at pp. *2-*6.)
Western Dental also asserts that it did object to Nanda splitting his claims, first by removing this action to federal court "so that both [this] action and the Federal Court Action would, at the very least, be in the same court," and then "moving to relate the removed State Court Action to the Federal Court Action so they would be presided over by the same judge." We disagree. Removing this action to federal court merely effectuated a change of forum, and relating this case to another pending action merely effectuated a change in the judge who would preside over it. Neither constitutes an objection to proceeding at all with two separate lawsuits, particularly in light of the unequivocal course of conduct by both the district court and the parties at the September 18, 2013 hearing we have described. Furthermore, counsel indicated during oral argument that res judicata was not front and center for Western Dental while the case was in federal court, so these actions could hardly constitute an objection to the splitting of Nanda's claims.
Counsel represented at argument that he had not "fully thought out the res judicata argument at the time the [remand] hearing was happening in [federal court]. What I did do is after that occurred, I did go back and do my research and felt very comfortable bringing that motion for judgment on the pleadings in state court on res judicata grounds . . . ." --------
The result we reach here would be the same under California law. California follows section 26(1)(a) of the Restatement. (See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1146-1147 [citing same].) And it has long been the law in California that res judicata does not apply when a defendant in one lawsuit consents, expressly or tacitly, to reserve certain claims for separate litigation. (See United Bank & Trust Co. v. Hunt (1934) 1 Cal.2d 340, 345.) As was said by our Supreme Court nearly a century ago of a party who tried to invoke res judicata in that circumstance: " 'Litigants cannot successfully assume such inconsistent positions.' " (Ibid.)
Finally, Western Dental urges us to deem this issue abandoned because of the quality of Nanda's briefing. We decline to do so. Both parties have addressed the issue, and while Nanda's argument consists in large part of citations to legal authority with no real analysis, he has separately captioned this issue under an appropriate heading and cited authority that is directly on point (see Cal. Rules of Court, rule 8.204), and application of the law to the facts here is not difficult. His brief, though it in many ways falls short, has assisted us in our consideration of this issue.
We also are mindful of the fact that Nanda did not invoke these authorities below, but that also is no obstacle to our deciding the case on this basis. Nanda's objections fairly apprised the trial court that res judicata should not apply given the circumstances in which he stipulated to dismiss the federal action. And even if that were not the case, we could consider a new theory on appeal to challenge the trial court's ruling because a motion for judgment on the pleadings raises only questions of law. (See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1162-1163.)
Relatedly, Nanda also argues Western Dental is judicially estopped from invoking res judicata, but it is unnecessary for us to address that question in light of our ruling.
Finally, because we are reversing the judgment, the award of trial court costs automatically falls too. (See Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1027.)
DISPOSITION
The judgment entered in favor of defendants is reversed and the matter remanded for further proceedings consistent with this opinion. The award of trial court costs is also reversed.
Plaintiff shall recover his costs on appeal.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.