Case Number: BC631548    Hearing Date: March 20, 2017    Dept: 40

MOVING PARTY: Defendant Natalie Valderrama

OPPOSITION: Plaintiff Richard Herbert

Plaintiff sues defendant for assault and battery. According to the allegations, on August 26, 2014, defendant (apparently a CVS employee) assaulted and battered plaintiff while he was shopping at a CVS store, causing emotional distress. Defendant pushed plaintiff, accused him of stealing, spoke racial epithets, and pretended to brandish a firearm. On August 24, 2016, plaintiff filed a complaint and on November 18, 2016, the operative first amended complaint (FAC) and on December 5, 2016, defendant filed this apparently opposed demurrer for insufficient facts and opposed motion to declare plaintiff a vexatious litigant.
Plaintiff appears in propia persona. Self-Represented Litigants (SLR) are held to the same standards that apply to licensed attorneys. Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056; Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209 (stating that SLR’s are “restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.”)

Request for Judicial Notice: In the moving papers, defendant sets forth a summary of request for judicial notice. Defendant, however, filed no separate request for judicial notice for these proceedings. CRC, rule 3.1113(l). (providing, “Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).”) Defendant filed a request for judicial notice in connection with her demurrer to the initial complaint. Since it is clear that defendant intended to bring a request for judicial notice in these proceedings, that the request is in the record, that the request includes judicially noticeable matters (other lawsuits plaintiff filed in connection with the same incident), that plaintiff does not oppose, the request is GRANTED. Evid. Code § 452(d).

Defendant’s counsel should note: “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.” CRC, rule 3.1110(f). Only four of the 17 exhibits are tabbed.

Demurrer Standard: A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action. CCP § 430.10(e). Thus, concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action, i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Garcetti v. Superior Court (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47. The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 113 (stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”). Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. CCP § 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191. A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty may be sustained when a defendant cannot reasonably determine to what he or she is required to respond.

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (quoting Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79 (internal quotations omitted)).

Res Judicata: Defendant argues that res judicata bars plaintiff’s claims. Whether defendant refers to the claim or issue preclusion aspect of res judicata is unstated.

“Claim preclusion ‘prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.’ [Citation.] Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. [Citation.] If claim preclusion is established, it operates to bar relitigation of the claim altogether. [¶] Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action. [Citation.] There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party. [Citation.] [¶] Issue preclusion differs from claim preclusion in two ways. First, issue preclusion does not bar entire causes of action. Instead, it prevents relitigation of previously decided issues. Second, unlike claim preclusion, issue preclusion can be raised by one who was not a party or privy in the first suit. [Citation.] ‘Only the party against whom the doctrine is invoked must be bound by the prior proceeding. [Citations.]’ [Citation.] In summary, issue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party. [Citation.]” DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824-825 (citations omitted).

“[T]o determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have ‘consistently applied the “primary rights” theory.’ [Citation.] Under this theory, ‘[a] cause of action … arises out of an antecedent primary right and corresponding duty and the delict or breach of such primary right and duty by the person on whom the duty rests. “Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term….” ’ [Citation.]” Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797-798 (citations omitted).

Here, there can be no reasonable dispute of the following facts:

On March 30, 2015, the small claims court entered a judgement in plaintiff’s favor against CVS Pharmacy dba Garfield Beach CVS LLC in a small claims action. RJN, Exh. A, Docket.

Subsequently, the small claims court denied plaintiff’s requests for reconsideration to increase the amount of the judgment. Plaintiff had sued CVS for, inter alia, “threaten of assault.” RJN, Exh. B, Complaint ¶ 3.

Additionally, on July 20, 2016, the U.S. District Court entered judgment in CVS’s favor against plaintiff. RJN, Exh. O, Docket.

In the ultimate third amended complaint, plaintiff alleged that defendant Valderrama committed wrongful acts and actually named her as a defendant. RJN, Exh. P, TAC ¶ II Parties, ¶ 1.

The TAC referred to an “attack and verbal comments spewed out by the Defendant(s)et.al. [sic].” RJN, Exh. P, TAC ¶ 1 (footnote omitted).

The TAC referred to the same events as the FAC here: Valderrama pretended to brandish a firearm, spoke racial epithets, accused plaintiff of stealing on the same date at the same CVS store. RJN, Exh. P, TAC ¶¶ 1, 7, 8.

Consistent with the U.S. District Court’s summary judgment ruling, it is clear that plaintiff’s claims are barred, at least by issue preclusion. A judgment was entered in the small claims action: a final adjudication. The issues raised were identical to those raised here: Valderrama’s “threaten of assault” by pretending to brandish a firearm, speaking racial epithets, pushing plaintiff, and accusing plaintiff of shoplifting at a certain CVS store on August 26, 2014. Because Valderrama was undisputed acting in her capacity as a CVS employee and because Valderrama appeared at the small claims trial, Valderrama is in privity with CVS. Therefore, all four issue preclusion elements are satisfied.

Plaintiff might have argued that the primary right he asserted in the small claims action was to be free from racial discrimination, as the U.S. District Court ruling identified. RJN, Exh. Q, p. 6. While this argument might defeat claim preclusion, it does not defeat issue preclusion because the same issues of Valderrama’s conduct that were raised in the small claims action are raised here.

Claim Splitting: Even if issue preclusion is inapplicable, plaintiff has engaged in improper “claim splitting” as defendant argues. See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1145 (referring to “the rule against splitting a cause of action”). The rule against double recovery precludes a plaintiff from recovering duplicative damages for the same transactional event. Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1612. Thus, where a plaintiff alleged the existence of a primary right but only one violation of that right, the plaintiff stated only one cause of action even though multiple theories of recovery are alleged. Ibid. In this context, “the primary right is imply the plaintiff’s right to be free from the particular injury suffered.” Ibid. (internal quotations and citation omitted).

Here, the FAC asserts damages in the form of emotional harm. FAC 8:7-8.

To the extent it also alleges physical harm, it does so in conclusory fashion and pleads no facts suggesting that plaintiff was actually hurt. FAC 1:27.

Indeed, the FAC appears to proceed on a battery there were the “battery cause no actual physical harm.” FAC 4:18.

Rather, the FAC alleges only that plaintiff experienced fear. FAC 6:3.

In the small claims action, plaintiff claimed injuries in the form of, inter alia, what appears to be embarrassment and “dejection.” Both of these injuries are emotional and were alleged to result from Valderrama’s conduct.

Applying the primary rights theory, plaintiff is precluded from seeking emotional distress damages arising from the same incident involving Valderrama’s conduct.

Uncertainty: Finally, although not raised, the FAC appears to combine two causes of action, one for assault, another for battery, rendering it uncertain.

Plaintiff’s opposition does not suggest that plaintiff can avoid the issue preclusion and claim splitting defenses.

Therefore, the demurrer is SUSTAINED WITHOUT LEAVE, making the vexatious litigant motion moot.

Defendant’s counsel to submit a proposed order and judgment of dismissal within five days, and give notice.

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