Opinion
D072698
06-06-2018
RUBEN CASAREZ, Plaintiff and Appellant, v. IMPERIAL IRRIGATION DISTRICT et al., Defendants and Respondents.
Ruben Casarez, in pro. per., for Plaintiff and Appellant. Oswalt & Associates and William S. Smerdon for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. ECU09518) APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed in part and reversed in part with directions. Ruben Casarez, in pro. per., for Plaintiff and Appellant. Oswalt & Associates and William S. Smerdon for Defendants and Respondents.
In this employment case, Ruben Casarez appeals from a judgment of dismissal after the court granted a motion to strike and sustained a demurrer without leave to amend. We conclude the court properly sustained the demurrer to some, but not all, of Casarez's causes of action. Because Casarez's wrongful termination cause of action here is identical to that he alleged against the same parties in another pending action (Casarez v. Imperial Irrigation District (Super. Ct. Imperial County, No. ECU08791)) (the 2015 action), the court should have abated this case instead of dismissing it. Accordingly, we affirm in part, reverse in part, and direct the trial court to enter an interlocutory judgment providing that this case is stayed until the final determination of the 2015 action. (Code Civ. Proc., § 597.)
Undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
A. Casarez's 2008 Lawsuit
In 2008 Casarez filed a complaint against Imperial Irrigation District (IID) for alleged employment discrimination and retaliation based on his race and advocacy for Hispanic employees' rights. (Casarez v. Imperial Irrigation District (Super. Ct. Imperial County, 2010, No. ECU04039) (the 2008 action).) In 2010 Casarez dismissed that complaint with prejudice. (See discussion in Casarez v. Imperial Irrigation Dist. (May 25, 2017, D070099) [nonpub. opn.] (Casarez I).)
B. 2013 Administrative Complaints
In 2013 Casarez filed two administrative complaints against IID with the Department of Fair Employment and Housing (DFEH). In one he alleged that IID had "'harassed, retaliated and discriminated'" against him to further IID's alleged culture of "'abusing and suppressing Mexican Americans . . . .'" (Casarez I, supra, 2017 Cal.App.Unpub. Lexis 3588.) In the other, he claimed that his supervisor prevented him from receiving sick pay and disciplined him for trivial complaints because of racial and political animus. (Ibid.) Although the DFEH issued Casarez a right-to-sue notice on each complaint, he failed to timely file a lawsuit against IID based on these allegations. (Ibid.) In Casarez I, we held that as a result such claims were time-barred. (Ibid.)
C. 2014 and 2015 Administrative Complaints
In July 2014 Casarez filed a DFEH complaint against IID, asserting that IID took various adverse employment actions against him, including termination of his employment, because of his age, ancestry, disability, engagement in protected activity, use of medical leave, medical condition, national origin, and gender. (See Casarez I, supra, 2017 Cal.App.Unpub. Lexis 3588.) In February 2015 Casarez filed another DFEH complaint against IID, asserting IID's discrimination and retaliation against him culminated in the termination of his employment on or about May 21, 2014. (Ibid.)
D. Casarez's 2015 Lawsuit
In July 2015 Casarez filed the 2015 action against IID alleging racial discrimination and retaliation for his union activities, culminating in his termination on May 21, 2014. (See Casarez I, supra, 2017 Cal.App.Unpub. Lexis 3588.) He alleged causes of action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and also for emotional distress and negligent supervision.
IID demurred to the 2015 action, asserting the FEHA causes of action were time-barred and the entire action was barred by the res judicata effect of Casarez's dismissal with prejudice of the 2008 action (ECU04039). (See Casarez I, supra, 2017 Cal.App.Unpub. Lexis 3588.) The trial court sustained IID's demurrer and entered a judgment of dismissal. (Ibid.)
In Casarez I we held that although many of Casarez's discrimination claims were time-barred, the 2015 action alleged a cause of action for wrongful termination that was not time-barred. We also held that Casarez's wrongful termination claim was not barred by res judicata because it arose in 2014, and thus could not be barred by the 2010 dismissal of the 2008 action. We reversed the judgment of dismissal with directions to overrule IID's demurrer to Casarez's first and second causes of action (under the FEHA) and to sustain the demurrer to the remaining causes of action (for emotional distress and negligent supervision), but with leave to amend.
At our request, IID's attorney advises that the 2015 action is pending and still in the pleading stage.
E. Casarez's 2016 Lawsuit
In November 2016, while Casarez's appeal from the judgment dismissing the 2015 action was pending—but before it was decided—Casarez filed the instant litigation against IID and six individuals he alleges are IID directors (collectively Defendants). (Casarez v. Imperial Irrigation District, (Super. Ct. Imperial County, No. ECU09518) (the 2016 action).)
Self-represented, Casarez alleges as "facts common to all causes of action" that in February 2016 IID voted to terminate his employment. He also alleges that IID had a "secret Klu [sic] Klux Klan Policy" to eliminate his civil rights and to abuse, harass, retaliate, and discriminate "against Latinos." He further alleges that IID made him into "a slave, an employee without any civil rights" and "[h]eld at the mercy of non-[H]ispanic whites" who "would love the thought of having swamps to throw into, Latinos, they dislike."
Casarez's complaint is framed in six causes of action: (1) racial discrimination, (2) violation of title VII of the Civil Rights Act of 1967, (3) violation of the Thirteenth Amendment to the United States Constitution, (4) violation of the Fourteenth Amendment to the United States Constitution, (5) violation of "IBEW 465 Memorandum of Understanding," and (6) "retaliation."
F. Demurrer, Request for Judicial Notice, and Motion to Strike
Defendants demurred to the 2016 action, making three main arguments. They asserted the complaint as a whole failed to allege facts constituting a cause of action. Defendants also argued that the first, fourth, and sixth causes of action were barred because the 2015 action was pending and alleged the same claims. Additionally, citing Johnson v. City of Loma Linda (2000) 24 Cal.4th 61 (Johnson), Defendants asserted that the first, second, fourth, and sixth causes of action were barred because Casarez failed to file a writ of mandate to challenge an administrative determination that upheld his termination.
"[U]nless a party to a quasi-judicial proceeding challenges the agency's adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions. (Johnson, supra, 24 Cal.4th at pp. 69-70.)
In conjunction with the demurrer, Defendants asked the court to take judicial notice of (1) Casarez I; (2) the findings and recommendations of an IID hearing officer; (3) a document entitled "Notice of Board of Directors Decision Pursuant to District Policy and Procedure 4350 (Termination)" (Notice of Termination), which accepted the hearing officer's recommendation and terminated Casarez's employment effective May 22, 2014; and (4) the absence of a petition for a writ of mandate seeking to overturn the administrative decision and its adoption by IID.
Defendants also moved to strike various inflammatory allegations in Casarez's complaint about the Ku Klux Klan, plus the third and fourth causes of action in their entirety.
Casarez filed a seven-page opposition that contains no legal analysis and cites only one authority—Bailey v. Alabama (1911) 219 U.S. 219 (Bailey)—for the proposition that "[p]eonage is considered a violation of our Constitution . . . ." Casarez's opposition does not explain how the complaint's allegations state a cause of action, nor in what respects, if any, the 2016 action differs from the claims he has alleged in the 2015 action. Casarez did not address Defendants' argument that his failure to challenge the administrative hearing by filing a mandate proceeding in the superior court was fatal, nor did he oppose the request for judicial notice.
Peonage is compulsory service in payment of a debt. (Bailey, supra, 219 U.S. 242.)
Instead of addressing the legal issues, Casarez's opposition is a narrative of his grievances against IID and his former supervisors. For example, he asserts the IID directors created "secret policies to attack Latinos", have a "culture of abusing and discriminating against Latinos," and hide behind subordinates "similar to how Osama Bin Laden reacted when confronted by the Navy Seals. Osama threw one of his wives in front of himself as a shield to protect himself from the Naval Seals." Casarez complained that IID discriminated against him because of his race and union activities, first by attempting to lower his wages and ultimately by terminating his employment based on false claims of substandard work and insubordination. Casarez recounts incidents involving his former supervisor, who Casarez contends "had a reputation of being abusive towards the Latinos." Casarez states an IID supervisor "set [him] up" for disciplinary action, was "secretly checking [his] work, to find cause to terminate [him]."
On Casarez's request, the court continued the hearing to give him more time to prepare. However, Casarez did not appear at the continued hearing.
On July 28, 2017, the court entered a minute order granting the motion to strike and sustaining the demurrer without leave to amend. The minute order does not contain any reasoning or rationale, nor does it mention the request for judicial notice.
G. The First Amended Complaint
Although the court denied Casarez leave to amend, on August 9, 2017 Casarez filed a first amended complaint (proposed FAC). In the proposed FAC, Casarez added allegations based on his interpretation of our opinion in Casarez I (which was filed May 25, 2017). For example, in a section entitled "Facts Common to All Causes of Action," the proposed FAC alleges:
We refer to the FA as "proposed" because Casarez filed it without leave of court.
"5. Casarez had had a favorable ruling from the Calif. Court of Appeals [sic], where the Court of Appeals [sic] acknowledged . . . IID did discriminate [a]gainst Casarez but IID stated the discriminatory complaints were time barred, h[o]wever the Court of
Appeals [sic] did acknowledge a culture of continuous discrimination resulting in Casarez's termination . . . .
"6. The Calif. Court of Appeals [sic] also concluded [r]es [j]udicata could not be used for any discriminatory actions of 2008 . . . ."
These allegations reflect a misunderstanding of Casarez I. We did not hold that IID discriminated against Casarez, nor did we state there was a culture of continuous discrimination. Casarez I must be read in light of the applicable standard of review on demurrer, which required that we assume Casarez's allegations were true.
The proposed FAC also alleges that IID had a "secret" res judicata "policy," known only to its directors and lawyers, that it applied against Casarez and no "white or black employee." The proposed FAC alleges that IID intended to "hide the res judicata" until IID management had "enough reasons to terminate Casarez." The proposed FAC alleges that if Casarez had known of "the existence of IID res judicata secret policy," he would have "protested" and protected himself better. Casarez also alleges that IID has a "fiduciary obligation" to have notified him of "IID's policy of res judicata" which has "the same intimidating force of the Klu [sic] Klux Klan" to "terrorize the minorities but highlight and support those of the white European nationality." He alleges the IID directors "were attempting to practice legal discrimination under res judicata." The proposed FAC further alleges that "[u]nder res judicata, IID was attempting to deprive Casarez, a Latino[,] of his American rights to [e]qual protection of the law" and "IID's attempt to use res judicata as a tool to abuse Casarez was identified as illegal conduct by the Court of Appeals [sic] . . . ."
The proposed FAC reflects Casarez's deep misunderstanding of res judicata as well as this court's holding on that subject in Casarez I. In Casarez I, we did not hold that IID's assertion of res judicata was illegal. We simply held its demurrer could not be sustained on res judicata grounds.
H. Order, Judgment, Appeal
On August 15, 2017, the court entered a separate written order granting the motion to strike and request for judicial notice, and also sustaining Defendants' demurrer without leave to amend. Although Casarez filed the proposed FAC without leave of court, the court's order sustaining the demurrer nevertheless considers the thrust of those new allegations. For example, although Casarez's original complaint does not contain the phrase "res judicata," the order states, "[I]n the court's opinion [Casarez's] causes of action, to the extent that they attempt to plead any causes of action boil down to two main points: First that [Defendants] unfairly took advantage of the res judicata effect of [Casarez's] dismissal of a prior suit that he filed against [IID]; and second that [Defendants'] decision to adopt the administrative decision . . . was unjust."
Turning back to the original complaint, the court granted the motion to strike the Ku Klux Klan allegations and allegations that IID "turn[ed] Casarez into a slave . . . ." The court also granted the motion to strike the third cause of action (slavery) and the fourth (Fourteenth Amendment) in their entirety. The court also granted the unopposed request for judicial notice.
The court sustained the demurrer to the first, second, and sixth causes of action on the grounds that (1) Defendants' assertion of res judicata is not actionable under the litigation privilege in Civil Code section 47, and (2) Casarez failed to challenge the administrative decision upholding his termination by filing a petition for a writ of mandate. The court sustained the demurrer to the third cause of action (for slavery) because the complaint does not allege that Casarez was forced to work against his will.
The court sustained the demurrer to the fourth cause of action on the grounds that the Fourteenth Amendment to the United States Constitution "does not create a separate cause of action." The court sustained the demurrer to the fifth cause of action because Casarez "merely alleges that the . . . Memorandum of Understanding provides that [Defendants] must treat IBEW members with fairness and equality, but does not make any allegation how that Memorandum of Understanding is relevant to plaintiff's complaint."
The court declined to sustain the demurrer on the ground that the 2015 action was pending because "[t]he Court finds that the other action concerns events that occurred in 2014 and the present case concerns events that allegedly occurred in 2016 . . . ."
Casarez appeals from the judgment of dismissal. His brief does not cite any case law or any secondary source, and contains no legal analysis. The opening brief does not address any of the grounds the court stated for granting the motion to strike, the request for judicial notice, or for sustaining the demurrer. Although the opening brief quotes portions of a federal civil rights statute and the Fourteenth Amendment to the United States Constitution, the brief contains no analysis explaining how the complaint states a viable cause of action under such laws.
Casarez's reply brief is somewhat better structured, having a table of contents and some headings, but it likewise has no legal analysis.
Instead of making reasoned legal arguments, Casarez's opening brief simply asserts the trial court erred by (1) "dismissing the case based on trivial reasons that had no bearing on the conduct of the IID Directors in creating the secret policy of res judicata"; (2) "essentially pardoning the actions of the IID Directors"; (3) "not properly considering the [c]ivil and [c]onstitutional right of a Latino"; (4) "directing IID['s] [a]ttorney . . . to create a case dismissal order"; (5) "not allowing Casarez's amended complaint to be considered" and "not including Casarez to a case management meeting held on July 28, 2017."
The record belies this assertion. Casarez was present in court on July 14, 2017 when the hearing on the demurrer and motion to strike was continued to July 28.
Casarez has forfeited the issues he appeals because his appellate briefing is inadequate to demonstrate reversible error. "A touchstone legal principle governing appeals is that 'the trial court's judgment is presumed to be correct, and the appellant has the burden to prove otherwise by presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited.'" (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 599.) As appellant, it is Casarez's responsibility "to support claims of error with citation and authority; this court is not obligated to perform that function" on his behalf. (Ibid.) "Matters not properly raised or that are lacking in adequate legal discussion will be deemed forfeited." (Id. at p. 600.) "In other words, it is not this court's role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness. Rather, an appellant is required to present a cognizable legal argument in support of reversal of the judgment." (Ibid.) Issues that are not raised or supported by argument and citation to legal authority are forfeited. (Ibid.) Moreover, challenges to a trial court judgment or order not raised in the opening brief may be treated as waived by the appellate court. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.) Although Casarez is self-represented, these rules apply equally to him. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 (Rappleyea).)
Nonetheless, because the disposition of this appeal could have an outcome determinative effect on the 2015 action (that is still pending), we review his contentions on the merits.
III. THE COURT PROPERLY SUSTAINED THE DEMURRER TO THE THIRD AND
FOURTH CAUSES OF ACTION
Casarez's third cause of action purports to state a cause of action for slavery. "The essence of slavery or involuntary servitude is that the worker must labor against his will for the benefit of another." (Beltran v. Cohen (N.D.Cal. 1969) 303 F.Supp. 889, 893.) Casarez does not allege he was compelled to work against his will. He may choose not to work. Accordingly, his complaint does not allege facts constituting a cause of action for slavery. Moreover, "[t]he Thirteenth Amendment provides individuals with the right to be free from involuntary servitude; it does not afford protection from discrimination more generally." (Kagy v. Sterling Hills Golf Course (9th Cir. 2006) 211 Fed.Appx. 563, 565.)
The court also properly sustained the demurrer to Casarez's fourth cause of action, which alleges Defendants violated the Fourteenth Amendment to the United States Constitution by "eliminat[ing] a Latino's [c]ivil [r]ights . . . ." The Fourteenth Amendment does not create a direct cause of action; rather, the rights created thereunder can be enforced under federal civil rights legislation. (See Smith v. Michigan Dept. of Corrections (E.D.Mich. 2011) 765 F.Supp.2d 973, 981.) Casarez has already alleged such in his second cause of action; therefore, it is not necessary to grant him leave to amend the fourth cause of action.
IV. THE COURT SHOULD NOT HAVE DISMISSED
THE REMAINING CAUSES OF ACTION
A. The Remaining Causes of Action for Wrongful Termination
As Defendants correctly note, the gravamen of Casarez's remaining causes of action (first, second, fifth, sixth) is alleged wrongful termination. The well-pleaded allegations essentially state Defendants terminated Casarez because of his race and in retaliation for his union activities. More specifically, the first cause of action alleges national origin/ancestry discrimination. Casarez's proposed FAC adds that "IID Directors terminated Casarez to intimidate other Latino employees." Casarez's second cause of action alleges unlawful employment discrimination based on "race, color, religion, sex, or national origin." The proposed FAC adds, "Res judicata was a racist policy with the sole purpose of being vindictive against Casarez." The fifth and sixth causes of action essentially allege the same wrongful termination. The fifth cause of action characterizes this as a breach of a memorandum of understanding with a trade union to treat him fairly, and the sixth cause of action labels his employment termination as "retaliation."
The proposed FAC also alleges that "Under res judicata, IID was attempting to deprive Casarez, a Latino[,] of his American rights to [e]qual protection of the law" and that IID "attempt[ed] to use res judicata as a tool to abuse Casarez was identified as illegal conduct the Court of Appeals [sic] . . . [in Casarez I]." Casarez's self-represented status no doubt explains, but does not excuse, his misunderstanding about res judicata. (Rappleyea, supra, 8 Cal.4th at pp. 984-985.)
Thus, once the causes of action under the Thirteenth and Fourteenth Amendments are removed, the well-pleaded allegations, liberally construed, assert the same alleged violation of a primary right (i.e., wrongful termination) that this court found to be viable in Casarez I. Nevertheless, the court sustained the demurrer to the first, second, fifth, and sixth causes of action. We examine these rulings in order.
1. The first and second causes of action
The court sustained the demurrer to the first and second causes of action on the grounds that (1) these causes of action are "solely based on the fact that [D]efendants took advantage of the res judicata effect of [Casarez] dismissing his prior lawsuit," which is not actionable under the litigation privilege; (2) Casarez failed to file a writ petition to challenge the administrative hearing that upheld his termination; and (3) the complaint does not allege how Defendants' alleged racial animus "is any way related to the res judicata effect of [Casarez's] dismissal of a prior action."
We conclude the court should not have sustained the demurrer to the first and second causes of action. Contrary to the court's analysis, Casarez's original complaint—the operative pleading to which the demurrer was addressed—does not even contain the phrase "res judicata." Res judicata does not appear until the proposed FAC. And even there, the first cause of action still alleges wrongful termination based on alleged racial discrimination. For example, the proposed FAC alleges, "IID directors terminated Casarez to intimidate the other Latino employees."
Indeed, Defendants concede that although the first cause of action is "poorly drafted," it alleges "a cause of action for wrongful termination, either in retaliation for [Casarez's] union activities, and/or for writing articles published in the local [news]paper, or for discrimination based on his race/ancestry." Likewise, liberally construing the second cause of action, it alleges wrongful termination based on Casarez's race or national origin.
Moreover, the court also erred in sustaining the demurrer to these causes of action based on Casarez's failure to challenge the adverse administrative ruling. To sustain the demurrer on this basis, the court necessarily had to take judicial notice of the Notice of Termination. Defendants requested the court do so under Evidence Code section 452, subdivision (h), which permits the court to take judicial notice of "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy."
Judicial notice under Evidence Code section 452, subdivision (h) is intended for facts that are not reasonably subject to dispute and are easily verified. "These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter." (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) "The statute has also been used on demurrer to take judicial notice of facts commonly known in a community, such as ownership, easements and control over land." (Ibid.) In other words, judicial notice under Evidence Code section 452, subdivision (h) is "intended to encompass facts that are widely accepted and easily verified." (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 154 (Sanchez).)
The Notice of Termination states, among other things, that the IID board "took action in closed session" in February 2016 "to accept the Recommended Decision of the hearing officer in this matter to terminate you . . . ." The Notice of Termination further states that IID "provided [Casarez] timely notice" that IID's board would be considering "this matter at the February 2, 2016 meeting." The Notice of Termination states the IID board "accepted the hearing officer's January 15, 2016 Recommended Decision in its entirety."
Defendants cite no case indicating that facts similar to those in the Notice of Termination are subject to judicial notice under Evidence Code section 452, subdivision (h). We conclude these facts are not "widely accepted and easily verified." (Sanchez, supra, 8 Cal.App.5th at p. 154.) Nor are they "capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy" as required under Evidence Code section 452, subdivision (h). Moreover, this record does not contain any "sources of reasonably indisputable accuracy" to which we could refer for immediate and accurate confirmation of factual statements in the Notice of Termination.
Because the trial court erroneously took judicial notice of the Notice of Termination, the court also erred in sustaining the demurrer to the first and second causes of action based on Casarez's failure to challenge the administrative proceedings by filing a writ petition.
Although the court could not properly take judicial notice of the Notice of Termination on a demurrer, nothing in this opinion precludes Defendants from raising this same issue by an evidentiary motion in the trial court at an appropriate time. Nor does anything in this opinion preclude IID from raising the same issue by an evidentiary motion in the pending 2015 action. The effect, if any, of Casarez's failure to challenge the administrative action by filing a petition for a writ of mandate is not properly before us and, therefore, we express no opinion on that issue here.
2. Fifth cause of action
The court sustained the demurrer to the fifth cause of action because it "merely alleges that the . . . Memorandum of Understanding provides that the [D]efendants must treat [Casarez] with fairness and equality, but does not make any allegation how that Memorandum of Understanding is relevant to plaintiff's complaint." However, paragraphs 5 through 14 of the complaint, entitled "Facts Common to All Causes of Action," allege that IID abused, harassed, retaliated, and discriminated against Casarez. "In ruling on a demurrer, the trial court is required to construe the complaint liberally with a view to substantial justice between the parties." (C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) Although Casarez does not expressly allege that paragraphs 5 through 14 are incorporated by reference in each cause of action, that is fairly to be implied from his heading, "Facts Common to All Causes of Action." Commendably, Defendants essentially concede this, stating, "Presumably, Casarez means to allege that IID violated the memorandum of understanding by . . . unfairly terminating his employment . . . ."
Thus, the fifth cause of action is redundant, but cannot be dismissed on a demurrer for that reason. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 (Blickman) [redundancy "is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial"].)
3. Sixth cause of action
The court sustained the demurer to the sixth cause of action on the grounds that "the only retaliatory act alleged in the complaint is the allegation that the [D]efendants took advantage of the res judicata effect of [Casarez's] dismissal of a prior civil lawsuit, which is not actionable . . . ." We read the complaint differently. The sixth cause of action alleges that Defendants "did retaliate against [Casarez] by . . . terminating" him. This cause of action does not contain the phrase "res judicata." As Defendants rightly concede, the sixth cause of action essentially realleges wrongful termination claims made in the first and second cause of action. Accordingly, although the sixth cause of action is redundant, it was error to dismiss it on demurrer. (Blickman, supra, 162 Cal.App.4th at p. 890.)
B. The Court Should Have Abated This Action
A litigant has no right to maintain two separate actions in the same court involving the same cause of action against the same parties at the same time. Under section 430.10, subdivision (c), grounds for demurrer include "another action pending between the same parties on the same cause of action." A demurrer on this ground "does not challenge the plaintiff's claim on the merits, but merely objects to the particular proceeding to enforce it." (Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 70.) "[T]he underlying theory is that the first action will normally be an ample remedy, and that the second action is therefore unnecessary and vexatious." (Ibid.) Where a demurrer is sustained on this ground, "the order should be merely an abatement or continuance of the second action, and it is error to give judgment for the defendant on the merits." (Id. at p. 71.) In such circumstances, abatement of the second action is a matter of right. "A trial court has no discretion to allow the second action to proceed if it finds the first involves substantially the same controversy between the same parties." (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574 (Leadford).) The court should sustain a demurrer based on another action pending where both suits are (1) predicated upon the same cause of action, (2) pending in the same jurisdiction, and (3) contested by the same parties. (Colvig, at p. 70.)
Here, the viable causes of action (for wrongful termination) are the same as those alleged in the 2015 action. Therefore, the first requirement for abating this action is satisfied.
Moreover, both the instant case and the 2015 action are pending in the Imperial County Superior Court. Therefore, the second element is also satisfied.
The third element is identity of parties. In the 2015 action, Casarez sued only IID. Here, he has also sued several individuals; however, he has sued them only in their capacity as IID directors. In the demurrer, Defendants asserted the parties were sufficiently identical in both actions to order this action abated because "IID has a statutory duty to defend and indemnify its directors and employees in this case, and in [the 2015 action], [and] the only way to establish that IID is [sic] an entity is liable is to establish liability on the part of its employees or in this case elected officials."
We agree the parties are sufficiently identical for purposes of abating this action. Although Defendants have not cited any California authority directly on point, analogous out-of-state cases have abated actions under similar circumstances because there is functional identity between the parties. (Saracino v. Hartford Financial Services Group, Inc. (Conn. Supp. 2007) 50 Conn.Supp. 503, 511-512 [946 A.2d 954, 960-961] [identity of parties where first action named corporation and second action added individual alleged to be corporate agent]; Pecan v. Madigan (Conn.App. 2006) 97 Conn.App. 617, 622, fn. 4 [905 A.2d 710, 714, fn. 4] [abating second action that added individual employee of housing authority because housing authority was required to indemnify him].)
The trial court declined to sustain the demurrer on the ground that another action was pending because "the other action [the 2015 action] concerns events that occurred in 2014 and the present case concerns events that allegedly occurred in 2016 . . . ." We disagree. Although Casarez's complaint alleges the IID directors voted to terminate his employment in February 2016, his proposed FAC clarifies that the actual termination was in 2014.
Accordingly, the court should have sustained the demurrer on the grounds that another action (the 2015 action) is pending. Instead of dismissing the action, the court should have entered an interlocutory judgment as provided in section 597. (Leadford, supra, 6 Cal.App.4th at p. 574 ["where the court determines there is another action pending raising substantially the same issues between the same parties, it is to enter the interlocutory judgment specified in [section 597]"].)
Section 597 provides in part: "[W]here . . . a demurrer based upon subdivision (c) of Section 430.10 is sustained (and no other special defense is sustained) an interlocutory judgment shall be entered in favor of the defendant pleading the same to the effect that no trial of other issues shall be had until the final determination of that other action." --------
DISPOSITION
The order granting the motion to strike is affirmed. The portion of the judgment sustaining the demurrer to the third and fourth causes of action is affirmed. The portion of the judgment as to the first, second, fifth, and sixth causes of action is reversed with directions to enter judgment sustaining the demurrer to those causes of action under section 430.10, subdivision (c), and abating the action as provided in section 597.
In the interest of justice, each party to bear its own costs on appeal.
NARES, J. WE CONCUR: BENKE, Acting P. J. DATO, J.