Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV029956.
RUSHING, P.J.
FACTUAL AND PROCEDURAL BACKGROUND
Angel Torres along with Clinton J. Berg II, Richard Aguirre, Jim Chavez and Damien were employed by the respondent Auto Chlor Systems of Northern California, Inc. (Auto Chlor) against whom they asserted a claim for failure to pay overtime, illegal deductions from wages and relief under Business and Professions Code section 17200. They were employed as “route sales technicians” at Auto Chlor where they sold and serviced dishwashers made by Auto Chlor. During the same period that these plaintiffs claimed overtime, another employee of Auto Chlor, Merarl Richison, made a similar claim to the labor commission where the claim for overtime compensation was denied with the statement: “The plaintiff’s earnings exceeded one and one-half times the minimum and more than half of the plaintiff’s earnings represented commissions. [¶] Under the Order overtime wages are not applicable. [¶] By reason thereof, plaintiff take nothing from the defendant.” Wage Order No. 7 of California Code Regulations, title 8, section 11070(3)(d) provides provisions of subsections (A), (B), and (C) above shall not apply to any employee who’s earnings succeed one and one-half (11/2) times the minimum wage if more than half of that employee’s compensation represents commissions.
Disputing the commissions finding and order, Angel Torres and the others brought an action for wage and hour violations against Auto Chlor. Torres brought suit on the same claims against Auto Chlor. “Defendants, and each of them, acted pursuant to and in furtherance of a policy and practice of: not paying plaintiff proper overtime compensation, and improperly failing to compensate plaintiff for all hours worked, improperly deducting expenses, not accurately recording hours worked, and failure to properly itemize wages. For example, plaintiff suffered deduction from his wages of a dollar per minute for every minute that plaintiff was late to Company meetings, which plaintiff was required to pay in cash to his manager, on the spot.”
In his sixth cause of action brought pursuant to Business and Professions Code section 17200 et seq. Torres sought an injunction against Auto Chlor for engaging in unlawful and unfair “practices, policies and customs set forth here.” The “policy and practice set forth herein is the same as that alleged for the wage and hour violations.”
On March 17, 2004, appellant dismissed that complaint with prejudice in exchange for a waiver of costs.
Seven months after the dismissal, Torres filed a new action repeating the allegations set forth above. At the hearing on the demurrer filed by Auto Chlor, Torres made no claim that the wage and hour claims were not barred on res judicata grounds, but he did claim that the Business and Professions Code section 17200 claim was new. The trial court gave him leave to amend and he filed an amended complaint. Thereafter, the defendant filed a motion for summary judgment based in part on a deposition admission that the earlier complaint set forth the same overtime and unlawful deductions and allegations as the current complaint. The motion for summary judgment was granted by the trial court on the ground that they were barred by the doctrine of res judicata as a result of his earlier voluntary dismissal and his failure to amend to raise any triable issue of fact.
DISCUSSION
Torres correctly notes that the standard of review from an order granting summary judgment is de novo. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.) We are not bound by the trial court’s stated reason or the rationale used. However, we find the trial court to be correct in this case. We also find that the Torres’s claim, that the cause of action set forth in the second complaint differs from that in the first complaint is without merit. We quite agree that if they were different then the summary judgment, as a matter of law could not be granted unless the prior retraxit operated to bar the second complaint. We understand the occasional uncertainty arising from an argument that attacks the relationship between an act and a transaction. But the way out of the difficulty lies with an understanding of the core of the code pleading scheme: it is not the theory pleaded or even the cause of action that is determinative but the injury to the appellant arising from a particular factual set. If instead of looking to the cause of action we focus on the facts, we see that here the motion for summary judgment was granted because there were no triable issues of fact not least because Torres’s deposition testimony established that his claim in the first complaint was the same as his claim in the second.
Notwithstanding Torres’s inability to dispute Auto Chlor’s facts 10 through 13, mainly that he was required to attend weekly meetings but no money was ever deducted from his check, that he chose to pay a fine in cash for being late and that generally all employees were given a choice as to whether they were to be written up for tardiness instead of paying the fines, appellant claims on appeal that the twin doctrines of merger and bar do not operate to prevent the filing of an identical subsequent complaint. We do not think that it is necessary for us to reach the question of merger and bar because the motion for summary of judgment, as we have reviewed it, anew, is dispositive of plaintiff’s claims. But we note that Torres’s reliance on Slater v. Blockwood (1975) 15 Cal.3d 791 (Slater) is entirely misplaced. Slater stands for the proposition that the harm suffered, as opposed to the particular theory asserted, is determinative of the question of whether a judgment on a pleading in a particular complaint operates as a merger and/or barr to a subsequent claim. The same factual allegations in the first complaint were the allegations in the second complaint. No discussion of merger, bar, retraxit or the like can offer an opportunity for the litigant to file, dismiss and then refile a case where it had been earlier resolved by a final judgment entered against him. We note that the law is well established that a request for dismissal with prejudice operates as a retraxit and bars a new action. (Arciniega v. Bank of San Bernardino (1997) 52 Cal.App.4th 213, 228.) Moreover, it should be recognized that the rule deriving from the primary right theory, namely that a litigant has one chance is one that arises not out of principal but out of a strong policy favoring closure in all cases and claims brought. As the Supreme Court remarked in Slater, supra, 15 Cal.3d 791, it is true that in certain particular circumstances courts may refuse to apply res judicata where to do so would constitute a manifest injustice. This statement acknowledges the policy role of the proposition and since in this case there is no claim that is or could be made that the result here is manifestly unjust to Torres, we believe his claim of error is unfounded.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.