Judge: Michael D. Washington, Case: 37-2022-00023211-CU-FR-NC, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - April 18, 2024

04/19/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited  Fraud Demurrer / Motion to Strike 37-2022-00023211-CU-FR-NC MCCALLUM VS STELVIO TRANSPORT LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/27/2023

The Demurrer to Complaint brought by defendant Stelvio Transport LLC (Stelvio) is SUSTAINED without leave to amend.

The Request for Judicial Notice brought by Stelvio is GRANTED pursuant to Evidence Code § 451, et seq. In addition, the Court, on its own motion, takes judicial notice of the entire publicly-available record and files in the case of McCallum v. Stelvio Transport, LLC (San Diego Superior Court Case No.

21-42190) (the Prior Case) pursuant to Evidence Code § 451, et seq.

In the Prior Case, plaintiff Carey McCallum (Plaintiff) sued Stelvio alleging a claim for age discrimination. The court in that case, Judge Cynthia Freeland, sustained a demurrer to the operative complaint in that case without leave to amend. Shortly thereafter, Plaintiff filed the instant case alleging another cause of action for age discrimination against Stelvio and adding an additional cause of action for fraud.

Stelvio now demurs on grounds that Plaintiff's claims are barred by the doctrine of res judicata. Stelvio is correct. As to the first claim for age discrimination, the claim in the instant case is virtually the same as the claim adjudicated by Judge Freeland. As to the second claim for fraud, while fraud itself was not addressed in the Prior Case, Stelvio persuasively argues that it is encompassed by the 'primary rights' doctrine such that Judge Freeland's adjudication of the age discrimination claim effectively covered the 'primary right' that had to do with Plaintiff's right to be considered for a job he applied for. 'Full recovery for each cause of action (same 'primary right') must be obtained in a single lawsuit. A plaintiff cannot 'split' a cause of action into successive suits against the same person...' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 6:250, citing Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1145 (additional citation omitted).) 'A 'primary right' is simply plaintiff's right to be free from the particular injury suffered (e.g., bodily harm, property damage, harm to reputation, etc.) [Citations.] [¶] Where there are different types of injury, there are separate primary rights. [Citations.]' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 6:251.1 (emphasis in original).) Plaintiff's damages in the instant case appear to be the same as in the Prior Case. Specifically, the third paragraph of Plaintiff's fraud cause of action alleges: 'Another facet of the Defendant's fraud against the Plaintiff was its online application's continuous loop which made it impossible for the Plaintiff to fill out the application.' (ROA 1, p. 2:23-25 (emphasis added).) The stated damage from the age discrimination is that 'Plaintiff suffered an adverse employment action when the Defendant did not hire him.' (ROA 1, p. 3:4-5.) In both instances, Plaintiff claims to have suffered economic damages in the Calendar No.: Event ID:  TENTATIVE RULINGS

3091419 CASE NUMBER: CASE TITLE:  MCCALLUM VS STELVIO TRANSPORT LLC [IMAGED]  37-2022-00023211-CU-FR-NC form of lost wages for the job he did not get. As such, the primary rights doctrine covers the fraud claim that Plaintiff is now attempting to bring, which appears to the Court to be an effort at claim 'splitting.' As the infirmity of Plaintiff's claims has nothing to do with the factual basis of the claims, but, rather, with a legal doctrine that bars re-litigation of claims that have already been adjudicated, there does not appear to be any way in which Plaintiff could amend to circumvent the legal doctrine of res judicata.

Moreover, this is not a 'close call' wherein some nuanced aspect of a legal claim may be distinguishable enough to survive a prior judgment. On the contrary, the facts available demonstrate that Plaintiff lost his case before Judge Freeland and rather than seeking leave to amend in that court, seeking reconsideration, or appealing, Plaintiff – a pro per litigant – simply filed a new case within days in a new courtroom alleging invasion of the same primary rights as were adjudicated in the Prior Case. That is not a proper utilization of the legal process. As such, and after careful consideration of the general policy favoring granting leave to amend, the Court concludes that the circumstances of this care render it an appropriate exercise of discretion to sustain the demurrer without leave to amend.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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