Judge Randolph M. Hammock, Case 22STCV10842 2023-02-06 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV10842, Date: 2023-02-06 Tentative Ruling

Plaintiff Caviar Mickens brings this employment action against Defendants Express Services, Atlas Homeware Co., and Saint Vincent De Paul. Plaintiff alleges he sought employment assignments through Defendant Express Services for roles as a forklift operator. Plaintiff alleges that Express Services limited his assignments due to his perceived sexual orientation. Moreover, once assigned to Defendant Atlas Homeware Co. and then Saint Vincent De Paul, Plaintiff alleges he faced further harassment or discrimination from those employers based on his perceived sexual orientation and/or race. This led Plaintiff to voluntarily resign. Plaintiff brings causes of action for (1) loss of earning capacities, (2) harassment, (3) discrimination, (4) deceit/fraud, (5) negligence, (6) constructive discharge, (7) punitive damages, and (8) exemplary damages.

The Declaration of Attorney Kristin N. Kovacich reflects that Defendants emailed Plaintiff a meet and confer letter outlining the deficiencies in the Complaint and requested a phone call to discuss said deficiencies with Plaintiff. Plaintiff responded that he would “respond in 3 days,” but then did not provide a further response. (Kovacich Decl. ¶ 3.) Although this demonstrates a lack of any substantive meet and confer, the court considers Defendants’ obligation satisfied. (CCP § 430.41.)

Exhibit 2: Order granting Defendants Express Services, Inc. and Atlas Homeware Co.’s Motion for Judgment on the Pleadings in Caviar Mickens v. Kelly Services Corporation, et al., Los Angeles Superior Court Case No. 21STCV06616, dated September 29, 2021. (Fruin, J.)

Exhibit 3: First Amended Complaint filed on November 16, 2021, by plaintiff Caviar Mickens in Caviar Mickens v. Kelly Services Corporation, et al., Los Angeles Superior Court Case No. 21STCV06616.

Exhibit 4: Order sustaining Defendants Express Services, Inc. and Atlas Homeware Co.’s Demurrer to Plaintiff’s First Amended Complaint in Caviar Mickens v. Kelly Services Corporation, et al., Los Angeles Superior Court Case No. 21STCV06616, dated March 16, 2022. (Fruin, J.)

specific orders therein), there is one compelling issue that permeates this case: Did it ever occur to demurring parties’ counsel that they were required to file a NORC in 21STCV06616? Indeed, all parties were required to do so. This is not even a close question of law.

It doesn’t matter that said case has been finalized or adjudicated. CRC, rule 3.300 (b) is quite clear. All counsel have an affirmative duty to file a NORC in the lowest case number, whether that case is currently pending or not.

Be that as it may, since this Court has already spent the time and effort in this demurer, and it appears that this case will be adjudicated in full, there is no need to file the required NORC at this time. Counsel are admonished to act accordingly in the future.

All counsel of record for the demurring parties in this case are hereby ordered to read and consider the following published article concerning NORCs, to wit, “To Relate, or Not to Relate.” A copy of this article is available on the LASC web site (www.lacourt.org) in “Courtroom Information” for Department 49 (Stanley Mosk). Each counsel is also ordered to electronically file and serve a written declaration in this case, within 14 days, which attests to the compliance of this specific order.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Defendants first argue the complaint is barred under res judicata. Defendant contends that “Plaintiff attempts to re-litigate a lawsuit that he filed on February 19, 2021—a lawsuit the Honorable Richard Fruin, Department 15 of this this Court, dismissed without leave to amend.” (Dem. 14: 5-6.)

The doctrine of res judicata precludes the re-litigation of certain matters which have been resolved in a prior proceeding under certain circumstances. (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.) “Res judicata, or claim preclusion, prevents re-litigation 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.) “Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” (Fed'n of Hillside & Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.)

On February 19, 2021, Plaintiff filed a lawsuit in Los Angeles Superior Court entitled Caviar Mickens v. Kelly Services Corporation, et al., as Los Angeles Superior Court Case No. 21STCV06616 (the “Initial Lawsuit”). (See RJN, Exh. 1, “Complaint.”) There, Plaintiff sued Kelly Services Corporation; Express Services, Inc.; Repligen Corporation; Atlas Homeware, Co.; and Society of Saint Vincent De Paul, Inc., for various employment causes of action.

As relevant here, Plaintiff alleged he sought employment with Express Services Corporation for an assignment as a forklift driver. (See RJN, Exh 1, “Complaint,” ¶ 33.) He alleged he faced discrimination and sexual harassment, and that Express Services deliberately assigned him to harassing or substandard working environments. (Id. ¶ 36.) One such assignment was with Atlas Homeware Co. beginning around April 17, 2019, where Plaintiff—working as a forklift operator—alleged he faced discrimination and “pervasive” harassment, including homophobic and racist remarks from other employees. (Id. ¶ 39.)

Plaintiff also alleged he faced discrimination and harassment during another assignment with Saint Vincent De Paul, beginning on or about June 24, 2019. (Id. ¶ 42.) After voluntarily leaving this assignment, Plaintiff alleged Express Services refused to offer him further staffing assistance. (Id. ¶¶ 49, 53.) Plaintiff brought causes of action for (1) “constructive discharge of employment termination,” (2) “constructive deceit and defraud,” (3) “constructive sexual harassment,” (4) “constructive discrimination, unwanted instrument,” (5) “loss of earnings, wages, and employment,” (6) “intentional inflict[ion] of emotional distress,” (7) “employment wear-and-tear, employment reputation damages,” and (8) “punitive losses and damages.”

On September 29, 2021, Judge Fruin granted Defendants Express Services’ and Atlas Homeware’s motion for judgement on the pleadings in its entirety. (See RJN, Exh. 3.) Plaintiff then filed an amended complaint. On March 16, 2022, the trial court sustained Defendants Express’s and Atlas’s demurrer to the FAC on various grounds, this time without leave to amend. (RJN, Exh. 4., “Order Sustaining Demurrer.”) That resulted in dismissal of the case with prejudice.

Approximately two weeks after the Court sustained Defendant’s demurrers to the Complaint, Plaintiff filed the instant lawsuit. Here, Plaintiff again names Express Services Corporation and Atlas Homeware as Defendants. Defendant also names Defendant Saint Vincent De’Paul for a second time, although that Defendant specially appeared and successfully moved to quash based on defects in service. (See Final Ruling, 12/16/2022.)

Plaintiff again alleges he applied for a staffing position as a forklift driver with Defendant Express Services. (Compl. ¶ 6.) Plaintiff apparently raises issues with the same assignment with Atlas Homeware Co. in or around April 19, 2019, where he faced racial and homophobic stereotyping and slurs. (Id. ¶¶ 10, 21, 35.) After that assignment concluded, Defendant Express services reassigned Plaintiff to Saint Vincent De Paul, where he experienced targeted harassment and intolerable working conditions. (Id. ¶¶ 25, 43, 46.) Plaintiff again alleges he faced further discrimination and harassment by Express Services when seeking assignments. (Id. ¶¶ 17, 28.)

Plaintiff brings eight causes of action, this time stylized as (1) “loss of earning capacities,” (2) harassment, (3) discrimination, (4) deceit/fraud, (5) “negligence act,” (6) “constructive employment discharge of termination,” (7) “punitive losses and damages,” and (8) “exemplar damages.”

As noted above, res judicata applies if there has been a final judgment on the merits in a previous decision. (Fed'n of Hillside & Canyon Associations, supra, 126 Cal.App.4th at 1202.) “A judgment is on the merits for purposes of res judicata, ‘if the substance of the claim is tried and determined…” (Association of Irritated Residents v. Dept. of Conservation (2017) 11 Cal.App.5th 1202, 1220.) This includes the scenario where a demurrer is sustained without leave to amend. (See Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 184 [finding an order sustaining a demurrer without leave to amend is on the merits and will have res judicata effect unless “the pleading defects are ‘technical or formal’ and can be corrected by a new pleading.”].)

In the previous action, Plaintiff apparently had at least two attempts to state viable claims. However, the trial court sustained Defendants’ MJOP and then Demurrer to the First and Second Complaints respectively, in their entireties. In the final attempt, the Court’s ruling addressed all eight causes of action individually, and reasoned that Defendant had failed to allege sufficient facts to support any of those claims. (See RJN, Exh. 4.) Thus, Defendant’s attack on the pleadings were successful on more than just “technical or formal” grounds. (Perez, supra, 146 Cal.App.4th at 184.) Defendant also represents that Plaintiff’s time for appeal has expired. Thus, the prior action constitutes a final judgment on the merits. This element is met.

When applying res judicata, “the key issue is whether the same cause of action is involved in both suits. California law approaches the issue by focusing on the ‘primary right’ at stake: if two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery.” (Deleon v. Verizon Wireless (2008) 88 Cal.Rptr.3d 29, 35.) “As far as its content is concerned, the primary right is simply the plaintiff's right to be free from the particular injury suffered…” (Villacres v. ABM Indus. Inc. (2010) 189 Cal.App.4th 562, 575–76.)

Although Plaintiff’s causes of action are stylized differently—a few of which again are not recognized causes of action in California—the issues and factual allegations underlying the causes of action are largely, if not completely, identical to those in the previous action. Plaintiff invokes the same primary right in both actions, that being, his right to be free from harassment and discrimination in the workplace. Although the court respectively posits that neither Complaint is a model of clarity, it appears the actions involve the same Defendants, the same work assignments during the same time periods, and challenge the same underlying discriminatory or harassing conduct. (See Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1386 [noting “our policy of emphasizing substance over form in characterizing pleadings”].)

Moreover, it also appears that all conduct alleged in the instant suit occurred before Plaintiff filed his February 19, 2021, complaint in the first lawsuit. Thus, even to the extent Plaintiff attempts to allege new facts or issues, those “could have been raised” in the prior action. (Villacres v. ABM Indus. Inc. (2010) 189 Cal. App. 4th 562, 576.) By failing to oppose, Plaintiff has failed to show differently. For these reasons, this court finds the two actions involved the same issues, causes of action, and/or primary rights for purposes of res judicata. This element is also met.

Res judicata “applies only to the relitigation of the same cause of action between the same parties or those in privity with them.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.) “As applied to questions of preclusion, privity requires the sharing of “an identity or community interest,” with “adequate representation” of that interest in the first suit, and circumstances such that the nonparty “should reasonably have expected to be bound” by the first suit. A nonparty alleged to be in privity must have an interest so similar to the party’s interest that the party acted as the nonparty’s ‘virtual representative’ in the first action.” (Id. at 820; Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 150; Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 875.)

The first case named five Defendants: Kelly Services Corporation; Repligen Corporation; Express Services Inc.; Atlas Homeware Co.; and Society of Saint Vincent De Paul. The instant case again names Express Services Inc. and Atlas Homeware Co. as Defendants. Defendant has therefore merely omitted some Defendants, but has not added any new parties. The same Defendants that successfully demurred to the Complaint in the former action do so again now. Moreover, the moving Defendants’ interests in this case and the former are largely the same, if not identical. Thus, the cases involve the same parties. The final element is met.

In light of these factors, discussed above, Plaintiff’s new action is barred by res judicata. Moreover, by failing to oppose, Plaintiff has not demonstrated the doctrine to be inapplicable. It is well established that “[u]nder the law, a party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation].” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247 [emphasis added].)