Judge Bruce G. Iwasaki, Case Number: 24STCV09068, Date: 2024-06-28 Tentative Ruling

On May 31, 2024, Defendants Jozu Hospitality, LLC (Jozu Hospitality) and Eddy Gomez (Gomez) (jointly, Defendants) filed a demurrer to the Complaint. Plaintiff Luz Pillado filed an opposition.

Defendants’ request for judicial notice of Exhibits A-C, E-F is granted as to existence only and not as to the truth of matters contained therein. (Evid. Code § 452, subd. (d), (h); (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 525 [“trial court properly took judicial notice of” documents from underlying arbitration proceeding].) The request is denied as to Exhibits D and G.[1]

Plaintiff’s unopposed request for judicial notice of Exhibits H-J is granted. (Evid. Code § 452, subd. (c), (d), (h).)

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Defendants demur to the entire Complaint on the grounds that all the claims are barred by res judicata.

“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.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Claim preclusion applies only if (1) the decision in the former proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the former proceeding; and (3) the parties in both the former and present proceedings are the same. (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 973-974.)

Res judicata encompasses “ ‘matters which were raised or could have been raised, on matters litigated or litigable’ ” in the prior action. (Busick v. Workmen's Comp. Appeals Bd., supra, 7 Cal.3d at 975; Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th 825, 844.) “ ‘ “The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent.” ’ ” (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 575.) “ ‘ “ ‘If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.’ ” ’ ” (Id. at p. 576.)[2]

Relevant to this action, “[t]he doctrine of res judicata applies not only to judicial proceedings but also to arbitration proceedings.” (Thibodeau v. Crum (1992) 4 Cal.App.4th 749, 755.)

On demurrer, Defendants contend that Plaintiff has already sued and adjudicated her employment claims against Jozu Hospitality in a prior arbitration, barring her from bringing her current Complaint. Specifically, in May of 2021, Plaintiff filed a Complaint against Jozu Hospitality and Eddy Gomez, alleging (1) Sexual Harassment – Hostile Work Environment; (2) Sexual Assault and/or Battery; (3) Retaliation for Complaints about Sexual Harassment and Sexual Assault; (4) Gender Discrimination; (5) Failure to Prevent Sexual Harassment, Discrimination, and/or Retaliation; (6) Wrongful Termination; and (7) Conversion (2021 Complaint); Plaintiff later voluntarily dismissed Eddy Gomez from the Arbitration proceeding and Erick Merilos was added. (Def.’s RJN Ex. A [2021 Complaint], Ex. C [Statement of Claims].) The 2021 Complaint was ordered to arbitration and, on May 13, 2024, a three-member panel of arbitrators issued a Final Award in favor of Jozu Hospitality, denying Plaintiff’s claims in their entirety (Arbitration Award). (Def.’s RJN Ex. F.)

Now, Plaintiff has filed another Complaint against Jozu Hospitality and Eddy Gomez for (1) Disability Discrimination; (2) Failure to Accommodate; (3) Failure to Engage in a Good Faith Interactive Process; (4) Disability Harassment (Against Defendant Gomez and Hotel); (5) Age Discrimination; (6) FEHA Retaliation (based on disability); and (7) Failure to Prevent Discrimination or Harassment (based on disability and/or age).

In arguing res judicata applies, Defendants first explain that the conduct in both proceedings occurred over the same time period and involved the same employer. Defendants further argue that the specific claims for harassment, discrimination, and retaliation claims in the Arbitration Proceeding arise out of the same facts and circumstances alleged in the present Complaint, which also contains claims for harassment, discrimination, and retaliation. That is, the claims in both proceedings arise from the same “nucleus of facts” and, therefore, are the “same” causes of action under the primary rights theory.

Defendants also contend that there was a “final” Arbitration Award issued in the Arbitration and that the two proceedings involve the same parties.

Based on the foregoing, Defendants argue the Complaint here is barred by res jurisdiction because Plaintiff “could have” raised these specific claims in the Arbitration Proceeding.

Defendants’ analysis on each of these requirements is largely undeveloped and conclusory. The Court addresses whether the two proceedings involve the same causes of action.

In California, two proceedings involve the same cause of action if they are based on the same “primary right.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797–798.) The term “cause of action” is often used loosely in California to refer to a count that states a cause of action under a particular legal theory, but the term “cause of action” has a precise definition in the context of primary rights: a primary right, a corresponding duty, and a breach of that duty. (Boeken, supra, 48 Cal.4th at p. 798.)

“ ‘As far as its content is concerned, the primary right is simply the plaintiff's right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: “Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.” [Citation.] The primary right must also be distinguished from the remedy sought: “The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.” [Citation.]’ ” (Mycogen, supra, 28 Cal.4th at p. 904 [quoting Crowley v. Katleman (1994) 8 Cal.4th 666, 681–682].) “Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Boeken, supra, 48 Cal.4th at p. 798.)

“Under this doctrine, 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. ‘ “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.” ’ [Citation.]” (Mycogen, supra, 28 Cal.4th at p. 897.) “ ‘ “[W]hen a plaintiff attempts to divide a primary right and enforce it in two suits,” ’ the primary right theory prevents this result in two ways: ‘ “(1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement [citation]; [and] (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata [citation].” ’ [Citation.]” (Boyd v. Freeman (2017) 18 Cal.App.5th 847, 858.)

Here, based on the pleadings and judicially noticeable documents, the two proceedings involve different causes of action.

As framed by Defendants, both actions involve Plaintiff’s right to be free of discrimination, harassment, and retaliation in the workplace under the Fair Employment and Housing Act (FEHA). (Reply, 2:19-20.) However, this characterization of the claims is too broad.

In contrast to the argument in the demurrer, Plaintiff is not seeking to recover for the same injuries based on the same acts. Rather, in Plaintiff’s Arbitration proceeding, she raised her right to be free from sex discrimination and sexual harassment in the workplace. Now, in this Complaint, she is raising her right to be free from disability discrimination and right to accommodations in the workplace. The conduct underlying each claim is separate and distinct conduct and injury that flows from the conduct is also distinct.[3]

Further, the rights at issue here are the rights to be free from discrimination based on different protected characteristics. That is, there is a primary right flowing from each of these protected characteristics identified. As explained in Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353:

“[P]laintiff's first “cause of action” under the FEHA actually, though inartfully, pleaded several causes of action: one for violation of his right to be free of employment discrimination based on national origin, another for violation of his right to be free of employment discrimination based on age, and another for violation of his right to be free of employment discrimination based on disability.” (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364–1365.)[4]

Thus, “[w]hether captioned as one or more causes of action in a complaint, discrimination based on each protected characteristic is a separate claim under FEHA.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 585, fn. 4 [citing Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1187 [allegations of sexual harassment and retaliation actually alleged two separate causes of action under FEHA even though pleaded in single count of complaint] and Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364 [plaintiff who alleges defendant’s single wrongful act invaded two different rights has stated two causes of action even though pleaded in a single count of the complaint].)

Accordingly, Defendants have failed to satisfy the first element of res judicata. The demurrer fails for this reason.

The demurrer to the Complaint is overruled. Defendants’ Answer shall be served and filed on or before July 29, 2024.

[1] Based on Plaintiff’s objection to Defendants’ request for judicial notice, neither exhibit was admitted in the arbitration proceeding.

[2] In contrast, issue preclusion or collateral estoppel applies only to issues that were actually litigated and decided in the first action (Mata v. City of Los Angeles (1993) 20 Cal.App.4th 141, 148-149), not to issues that could have been but were not decided.

[3] While there is appears to be apparent overlap on the injury sustained, the Court cannot conclude at the demurrer stage that the entire Complaint is barred. For example, both the Complaint here and the Statement of Claims in the Arbitration involve same adverse employment action – Plaintiff’s constructive termination – which presumably resulted in “loss of earnings and employment benefits”. (Compl., ¶ 26 [Plaintiff had no choice but to resign on or around April 15, 2021]; Def.’s RJN Ex. C [Statement of Claims, ¶ 23].) However, Plaintiff also states she “suffered humiliation, emotional distress, and mental pain and anguish”; it is not clear that these are the same injuries where there are claims for harassment based on specific, distinct conduct.

[4] Although this discussion in Skrbina occurred in the context of determining causes of action for a motion for summary judgment, the analysis applies here for res judicata purposes because the court had to determine causes of action using the same “primary rights” analysis.

Judge Bruce G. Iwasaki

Department 58