Opinion
NOT TO BE PUBLISHED
McCONNELL, P. J.
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-00096306- CU-WT-CTL Richard J. Oberholzer, Judge. (Retired Judge of the Kern S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
A former law librarian, Michael Kaye, was fired by his employer after he sent a scathing e-mail criticizing his superiors. Kaye brought a superior court action against his employer and others for wrongful termination under a number of state and federal theories. Part of the suit was removed to federal court, including pendent state law issues. Several state law claims remained in superior court. His federal claims were resolved against him in a summary judgment proceeding, with the federal court dismissing the pendent state law claims, including a claim under Labor Code section 1198.5 (hereafter section 1198.5), which pertains to an employee's right to access his or her personnel file. Kaye took no action to revive his section 1198.5 claim in his superior court action. His superior court action was resolved against him in a summary judgment proceeding, and this court affirmed the judgment. While that appeal was pending, Kaye filed a second complaint in superior court for wrongful termination based on defendants' alleged violation of section 1198.5. The court entered a judgment of dismissal after sustaining defendants' demurrer. The court determined the suit is barred by res judicata, and alternatively, there is no private right of action under section 1198.5. We affirm the judgment on the ground of res judicata. In view of our holding, we are not required to reach the private right of action issue, and in any event, Kaye waived appellate review of the issue by not addressing it in his opening brief.
FACTUAL AND PROCEDURAL BACKGROUND
For convenience we recite some facts from the earlier appeal. (Kaye v. Board of Trustees of the San Diego County Public Library (2009) 179 Cal.App.4th 48 (Kaye I).)
Kaye's Conduct and Termination of Employment
Kaye was a reference librarian at the San Diego County Public Law Library (Library) for more than 20 years. He taught the Library's appellate course for self-represented litigants. In February 2006 the Administrative Office of the Courts (AOC) invited Kaye to be a panel member for a program aimed at assisting self-represented litigants with appeals. His supervisor, Joan Allen-Hart was unavailable, and he requested permission to participate in the program from her supervisor and director of the Library, Robert Riger. Riger approved the request, but when Allen-Hart learned of the invitation she questioned why the AOC did not go through her or Riger. Riger directed an inquiry into the matter, which upset Kaye and prompted him to rescind his acceptance.
Around this time, Allen-Hart sent an e-mail to Kaye and other reference librarians announcing an upcoming staff meeting and listing discussion topics. She requested that each of them provide her with a list of projects they believed were priorities for the reference department.
Kaye responded in an e-mail, which he copied to coworkers. He did not address Allen-Hart's request, and rather criticized the Library's management. For instance, he wrote that management regarded full-time reference librarians as "fungible and disposable peons who are not genuinely valued." He also wrote that Allen-Hart's unilateral implementation of schedule changes was a "hypocritical, " "hand-down-the-law approach" that "smacks of autocracy." He also claimed his assignment to a community library diversity committee did not suit his skills and interests, and thus "represents an administrative determination to deliberately squander law library funds and human resources on a relatively useless outside extravagance."
Kaye also complained about the inquiry into his AOC invitation. He opined the inquiry "smacks of petty, spiteful jealousy, " and warned that "[i]t bodes badly for the future of our efforts [to assist self-represented litigants] if people are more concerned about who gets credit than about providing genuinely useful service to the public." He characterized the inquiry as "small-minded and inexcusable, " and because of it "the library's managers have forfeited much of their credibility and good will in my eyes." He concluded the e-mail by asserting his belief that reference librarians "work under an autocratic command structure and that reference staff meetings do not really serve much purpose." He proclaimed, "Let the managers make their decisions without any pretense of collaboration and hand down their fiats from on high."
The Library placed Kaye on administrative leave pending an investigation of his e mail. Around two weeks later, Riger notified him that Riger recommended he be discharged for insubordination and serious misconduct. An attorney and former member of the Library's board of trustees (Board) conducted a pre-termination administrative hearing. She concluded Kaye's "conduct constituted serious misconduct and justifies termination." Riger terminated Kaye's employment effective August 3, 2006.
Kaye appealed the decision to the Board. On December 4, 2006, the Board voted to discharge Kaye as of that date. The Board explained it was not concerned with the substance of the complaints Kaye raised in the e-mail, but the manner in which he chose to raise them. In the Board's view, the e-mail appeared "intentionally calculated to disrupt the office, undermine the authority of the Director, and impinge upon working relationships within the Library." The Board also concluded the e-mail "exhibited an inappropriate lack of judgment, professionalism and respect for the chain of command necessary for the effective functioning of the Law Library."
Kaye's Litigation
In April 2007 Kaye filed his first action, Kaye I, in superior court, a combined complaint for wrongful termination and petition for writ of mandate (complaint) against the Board, the Library and Riger. The first two counts contained both state and federal claims, and the third through sixth counts contained purely state law claims. Specifically, count one alleged Kaye's discharge violated the federal Civil Rights Act of 1871 (14 U.S.C. § 1983), and his due process rights under the federal and state Constitutions; the second count alleged his discharge violated his right under Labor Code section 1198.5 to inspect his personnel file, and concomitantly his federal and state due process rights; the third count alleged his discharge violated Business and Professions Code section 6345, under which the Board, as opposed to the Library's director, may dismiss an employee; the fourth count alleged his discharge violated the Ralph M. Brown Act's open meeting requirements (Gov. Code, § 54950 et seq.); the fifth count alleged his discharge violated the free speech clause in article I, section 2(a) of the California Constitution; and the sixth count alleged his discharge violated the whistleblower protections in the California False Claims Act (CFCA) (Gov. Code, § 12650 et seq.). Kaye sought the reinstatement of his job and back pay.
The complaint originally named Allen-Hart as a defendant, but Kaye dismissed her from the action.
In May 2007 defendants removed the action to federal court on the ground of federal question jurisdiction (Kaye II). Defendants asked the federal court to exercise supplemental jurisdiction over state law claims. The following August, Kaye filed a motion in Kaye II for partial remand, and in December the federal court remanded the complaint's third through sixth counts to state court, thus reviving a large portion of Kaye I. (Kaye v. Board of Trustees of the San Diego County Public Law Library (S.D.Cal. 2007) 612 F.Supp.2d 1146, 1151.)
In Kaye II, defendants moved for partial summary judgment, of the federal claims in the complaint's first and second causes of action. On June 10, 2008, the federal court granted the motion. The court also expressly declined to exercise supplemental jurisdiction over the state law claims in the complaint's first and second causes of action. (Kaye v. Board of Trustees of the San Diego County Public Law Library (S.D.Cal. June 10, 2008, 07cv921 WQH (WMc), 2008 U.S. Dist. Lexis 45604.) On June 11 the federal court entered judgment and closed the case.
On June 24, 2008, Kaye filed a motion in federal court to alter or amend the judgment in Kaye II. The motion stated: "The court's order and judgment of June 10, 2008, make no specific disposition of the unadjudicated state law issues. Although the court clearly declined to exercise supplemental jurisdiction over those issues, it did not dismiss them with prejudice. It did not dismiss them without prejudice. And it did not remand those claims to state court. The practical effect of the court's order and judgment has been to bottle up the unadjudicated state claims in a procedural and jurisdictional limbo which, if not corrected, will prevent their resolution forever. [¶] By failing to expressly terminate and relinquish jurisdiction over plaintiff's residual state law claims, the court has (perhaps inadvertently) retained them in perpetuity under federal jurisdiction by refusing to decide them."
As discussed later, Kaye's legal analysis was incorrect.
On July 14, 2008, defendants filed their opposition to the motion. They argued that a federal court "which declines to exercise supplemental jurisdiction has discretion to dismiss or remand the state claims. Here, this Court has dismissed the state claims by operation of its Judgment. There is no reason to amend or alter the Judgment."
While the motion was pending in federal court in Kaye II, defendants moved for summary judgment in Kaye I on the complaint's four causes of action remanded to state court. Kaye had not made any effort in superior court to revive the state court claims in the complaint's first and second causes of action that the federal court had dismissed in Kaye II, including his claim under section 1198.5. On August 15, 2008, the court granted defendants summary judgment in Kaye I.
On October 21, 2008, the federal court issued an order denying Kaye's motion to alter or amend the judgment in Kaye II. The order explains that the federal court dismissed the state law claims the preceding June 10 and it "has not retained jurisdiction over any of Plaintiff's claims."(Kaye v. Board of Trustees of the San Diego County Public Law Library (S.D.Cal. Oct. 21, 2008, 07cv921 WQH (WMc), 2008 U.S. Dist. Lexis 84183, *5.)
On November 18, 2008, Kaye filed a second action in superior court (Kaye III), a combined complaint for declaratory relief and petition for writ of mandate (Kaye III complaint) against the Board, the Library and Riger. The Kaye III complaint attempted to revive the section 1198.5 claim first alleged in Kaye I, which was removed to federal court and later dismissed. The Kaye III complaint alleged that in 2005 the then director of the Library, Charles Dyer, issued a written reprimand to Kaye and warned that "[f]urther acts on your part that require discipline will lead to progressive discipline with increased sanctions." Kaye asked to see any incident reports supporting the reprimand, but Dyer refused on the ground the "writer or writers of the incident report(s) expressed a desire that their communications remain anonymous." Kaye submitted a grievance to the Board, arguing Dyer's reliance on undisclosed written accusations violated section 1198.5, subdivision (a). The Board rejected Kaye's grievance, and "produced an unverified document that it characterized as a 'comprehensive summary of substance of employee incident report.' The Board did not disclose the identity of plaintiff's accuser(s) or the identity of the person who prepared the purported summary."
The Kaye III complaintalso alleged defendants violated section 1198.5 with respect to the March 2006 investigation into his e-mail to Allen-Hart, which was the basis for his discharge. The Kaye III complaint alleged: "The initial letter of proposed termination cited the reprimand of May 23, 2005, as part of the charging allegations. It was unclear in context whether the 2005 reprimand had been resurrected as a recycled substantive charge or whether it served as an aggravating factor to help justify imposition of the maximum disciplinary sanction at [the Library] management's disposal. The charging document characterized the 2005 reprimand as 'relevant to note.' It would not have been 'relevant' unless it was either part of the charged offense or it affected the severity of the punishment to be imposed." The Kaye III complaint objected to his termination, alleging defendants' failed to "produce the secret incident report from the unidentified accuser that had served as the basis for [his] reprimand in 2005, " and the person who conducted the pre-termination hearing "expressly cited the May 23, 2005, reprimand as one of the documents she had relied on in reaching her adverse determination."
In Kaye III, Kaye sought a declaration that the termination of his employment was invalid because it violated section 1198.5. In the writ of mandate portion, he sought an order commanding defendants to expunge the record of his termination because of its unlawfulness, and to reinstate his employment. He also sought lost back pay.
Defendants demurred to the Kaye III complaint. The court sustained the demurrer without leave to amend, and entered a judgment of dismissal with prejudice on March 12, 2009. The court determined the section 1198.5 claim is barred by the res judicata doctrine. It explained Kaye "had 52 days to amend the state court complaint [in Kaye I]to re-allege the state claims prior to the hearing on Defendants' state court summary judgment motion after the federal court granted Defendants' motion for summary judgment. Plaintiff had ample opportunity to amend his state court complaint." Alternatively, the court found the section 1198.5 claim lacks merit because the statute provides no private right of action.
Kaye appeals the judgment in Kaye III, contending the court erred by sustaining the demurrer. During the pendency of the appeal, we issued our opinion in Kaye I. We affirmed the trial court's grant of summary judgment to defendants. (Kaye I, supra, 179 Cal.App.4th at pp. 56-63.)
DISCUSSION
I
Res Judicata
A
Kaye contends the court erred by finding his action in Kaye III for violation of section 1198.5 is barred by the res judicata doctrine. In reviewing a demurrer ruling, "we assume the truth of all facts properly pleaded and consider those matters which may be judicially noticed. [Citation.] 'If all the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer. [Citation.]' " (Henry v. Clifford (1995) 32 Cal.App.4th 315, 320.) We review a demurrer ruling de novo. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 786.)
"The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration." (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 334, p. 938.) "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. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigatable." (Sutphin v. Speik (1940) 15 Cal.2d 195, 202.) "[W]here the causes of action and the parties are the same, a prior judgment is a complete bar in the second action." (Id. at p. 201; 4 Witkin, Cal. Procedure, supra, Pleading, § 36, p. 101.) "A single cause of action cannot be split, i.e., an entire claim cannot be divided and made the basis of several actions." (4 Witkin, supra, Pleading, § 45, p. 108.)
" '[T]he 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. [Citations.]' " (Henry v. Clifford, supra, 32 Cal.App.4th at p. 321.) The most significant factor is the harm the plaintiff suffered. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954, disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4; Craig v. County of Los Angeles (1990) 221 Cal.App.3d 1294, 1301.) Complaints commonly designate each theory of recovery on a single primary right as a separate "cause of action." "[T]he phrase 'cause of action' is 'often used indiscriminately to mean what it says and to mean counts which state differently the same cause of action....' " (Slater v. Blackwood (1975) 15 Cal.3d 791, 796.)
It is established that an employee cannot split a cause of action for wrongful termination. In Takahashi v. Board of Trustees of Livingston Union School Dist. (9th Cir. 1986) 783 F.2d 848, 850 (Takahashi), Takahashi was terminated from her teaching position because a commission on professional competence found her incompetent to teach. She brought a mandamus action in superior court to compel the commission to reinstate her employment. The action was based on the invasion of her alleged contractual right to employment. (Id. at pp. 849, 850.) The trial court ruled against her, and the appellate court affirmed, finding she had no right to reinstatement based on the school district's failure to evaluate her performance under a provision of the Education Code, and substantial evidence supported the trial court's finding that cause existed for her dismissal. (Takahashi, supra, at p. 849.)
Takahashi then filed an action in federal court, alleging her termination of employment violated her civil rights under title 42 United States Code sections 1981 and 1983, because it was based on her sex and ethnic origin, the requirement that she maintain a suitable learning environment in her classroom was impermissibly vague, and she was subjected to methods of job performance evaluation to which other employees were not subjected. She sought compensatory damages for lost wages and mental distress, and punitive damages. (Takahashi, supra, 783 F.2d at p. 849.) The district court dismissed the suit on the ground of res judicata and she appealed. The Ninth Circuit Court of Appeals affirmed, concluding the claim preclusion aspect of the res judicata doctrine barred the action since the state and federal suits were based on the same primary right, the right to employment. The court explained: "Absent termination of her employment contract, Takahashi suffered no harm. Takahashi's allegations of mental distress caused as a result of her dismissal do not present a separate injury. Rather, any such distress would be a consequence of the District's violation [of] Takahashi's primary contractual right. Consequential damages cannot support a separate cause of action." (Id. at p. 851, fn. omitted.)
The court in Takahashi rejected Takahashi's characterization of the primary right invaded as the right not to be discriminated against on the ground of ethnic origin in the evaluation and dismissal process. The court noted Takahashi "has failed to allege[] a new injury. 'Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim of relief.' [Citation.] By invoking the Constitution and [title 42 United States Code section] 1983, Takahashi has merely presented a new legal theory upon which she seeks recovery." (Takahashi, supra, 783 F.2d at p. 851, citing City of Los Angeles v. Superior Court (1978) 85 Cal.App.3d 143, 155 [state court claim for conversion barred by earlier federal court action for violation of 42 U.S.C. § 1983; jury merely asked to "look at the merits from a slightly different angle"].)
In Gamble v. General Foods Corp. (1991) 229 Cal.App.3d 893, the court agreed with the primary right analysis in Takahashi, but explained that "public employment in California is not held by contract but by statute and no public employee has a contractual right to continued employment." (Gamble, at p. 900, fn. 3.)
In Balasubramanian v. San Diego Community College Dist. (2000) 80 Cal.App.4th 977, 981-982 (Balasubramanian), an employee not selected for the position of assistant professor brought an unsuccessful federal action alleging employment discrimination based on national origin and gender. Among other things, Balasubramanian claimed the district's affirmative action representative was not present during her interview for the position, in violation of the district's procedures. It was undisputed that the affirmative action representative was not present, but the jury found the district did not discriminate against her. She then sought a writ of mandate in superior court to have the district reclassify her as an academic contract employee, and for breach of contract based on the denial of her right to have an affirmative action representative present during her interview. The superior court denied her petition and granted summary judgment on the breach of contract claim on the ground of res judicata.
This court affirmed, explaining that in "both the federal and state actions, the harm she alleged was having been rejected for the position of assistant professor. Although her theory in federal court was discrimination and her theory in state court was breach of contract, both actions involved the primary right to be employed by [the district]." (Balasubramanian, supra, 80 Cal.App.4th at p. 992.) Further, we stated that "[b]ecause the harm suffered, rather than the theory asserted, was the same in both actions, res judicata operates to bar Balasubramanian's breach of contract cause of action." (Id. at pp. 992-993; see also Gamble v. General. Foods Corp., supra, 229 Cal.App.3d at pp. 899-902 [employment discrimination suit under Title VII of Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 was res judicata bar to state court suit for termination in violation of implied-in-fact contract because primary right in both cases was right to employment]; compare Agarwal v. Johnson, supra, 25 Cal.3d at p. 955 [action under Title VII did not bar later action for intentional infliction of emotional distress resulting from unlawful discharge because damages under Title VII not available for mental distress].)
We conclude the court correctly determined Kaye III is barred by the res judicata doctrine because it involves the same primary right as Kaye I, the right to continued employment. The questions litigated in Kaye I were whether Kaye's termination of employment violated (1) Business and Professions Code section 6345, since the statute authorizes a law library board, rather than a library director, to"at its pleasure remove any law librarian or law library employees"; (2) the Brown Act's open meeting requirements (Gov. Code, § 54957, subdivision (b)); (3) the state Constitution's free speech clause (Cal. Const., art. I, § 2(a)); and (4) the CFCA's whistleblower protections (Gov. Code, § 12653). For each count, Kaye sought the reinstatement of employment on the ground his termination was invalid because of the alleged violation and an award of back pay.
Kaye III merely raised a fifth state law theory to support Kaye's wrongful termination claim, that his termination violated section 1198.5, which pertains to an employee's access to personnel records. As in Kaye I, Kaye III sought reinstatement of employment and back pay. Kaye III's section 1198.5 theory was not that the Library's alleged violation of the statute caused him any injury per se, but rather that the violation resulted in his termination of employment and consequent loss of pay. (See Takahashi, supra, 783 F.2d at p. 851.) We do not consider the Labor Code issue in a vacuum, but rather in conjunction with the alleged harm that befell Kaye. The situation here is similar to that in Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1476, in which the court explained: "All of plaintiff's alleged causes of action... arise in conjunction with or as a result of the alleged wrongful termination of her employment. Indeed, plaintiff specifically alleges that each act complained of caused the dismissal (wrongful discharge, conspiracy, unconstitutional discharge, discharge in violation of state civil rights) or was a consequence of the dismissal (emotional distress, damages), part and parcel of the violation of the single primary right, the single harm suffered." Allowing Kaye III to proceed would violate the rule against splitting a cause of action. Defendants should not face serial lawsuits over whether the termination of Kaye's employment was wrongful.
Subdivision (a) of section 1198.5 provides: "Every employee has the right to inspect the personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee." Subdivision (d)(2) of section 1198.5 excludes from inspection "[l]etters of reference." In Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 531, a defamation action rather than an action arising from employee discipline, the court concluded that confidential written complaints by an employee against another employee fell within the "letters of reference" exclusion in section 1198.5. Given our holding here, we are not required to address defendants' assertion the "letters of reference" exclusion applies to the incident report in question and the identity of the coemployee who complained against Kaye. The trial court also did not address this issue. We are also not required to discuss defendants' assertion the section 1198.5 issue is moot because the Library cannot locate the incident report Kaye sought.
B
1
Kaye contends that "[u]nder the primary rights theory of pleading, [his] claim under... section 1198.5 was a stand-alone cause of action that could be revived and prosecuted as a separate suit after it became derailed from the main case." He acknowledges that the caption of the Kaye III complaint states the action was for wrongful termination, but he argues an action under section 1198.5 "is not intrinsically a wrongful termination claim. Neither termination nor any other kind of disciplinary action is an essential element of the claim." Kaye cites no supporting legal authority, and we disagree with him. As discussed, in determining whether the res judicata doctrine applies, our most important consideration is the harm the plaintiff suffered. Kaye I and Kaye III involved the same controversy and harm to Kaye, the termination of his employment. The section 1198.5 claim was but one of five state law theories Kaye alleged to obtain reinstatement of his employment and back pay. Kaye could not bring the Labor Code claim separately any more than he could bring the Brown Act claim separately, since the gravamen of both claims is his termination of employment.
Additionally, Kaye asserts Kaye III'ssection 1198.5 claim is not barred by res judicata because it is factually distinct from the claims litigated in Kaye I, and it required different proof at trial. The section 1198.5 claim, however, merely introduces the undisputed facts that the Library refused to reveal the identity of the coworker who complained against Kaye and produced a summary of the incident report rather than the actual report. Rather than being fact intensive, the section 1198.5 claim presented legal questions of statutory interpretation, whether the statute allows a private right of action, and if so, whether the information Kaye sought came within the "letters of reference" exception to disclosure. Kaye has cited no authority that convinces us the Labor Code claim should be treated as a distinct primary right.
Because we affirm the judgment on the ground of res judicata, we deny Kaye's May 13, 2010 request that we take judicial notice of the legislative history of section 1198.5.
Kaye also submits it is "too late" for the Library to dispute the federal court's finding in Kaye II that for purposes of remand to state court the purely state law claims in the complaint (third through sixth counts) were "factually distinct" from the first two counts, which included the section 1198.5 claim. The federal court, however, was not faced with the state law res judicata issue, and the order has no precedential value here. It was the task of the superior court in Kaye III to decide the res judicata issue in the first instance.
2
We are also unpersuaded by Kaye's contention res judicata is inapplicable because he did not intentionally or negligently cause the split of his cause of action. Kaye asserts the federal court in Kaye II caused the problem by dismissing his state law section 1198.5 claim instead of remanding it to the superior court in Kaye I. Kaye also blames the situation on defendants for their removal of Kaye I to federal court and their opposition to his motion to amend or alter the judgment in Kaye II to remand state law claims to the superior court.
In Kaye's view, the federal court's dismissal of his section 1198.5 claim in Kaye II resulted in the split of the second "cause of action" in his original complaint in Kaye I, which was removed to the federal court. As discussed, however, the complaint in Kaye I alleged various theories of recovery (each designated as a "cause of action") to support his single cause of action for wrongful termination. By not reviving the Labor Code claim in Kaye I, and instead bringing Kaye III, Kaye split his cause of action for wrongful termination.
"If a federal court dismisses federal claims on the merits by summary judgment, it should refuse to exercise pendent jurisdiction [citation] over nonfederal claims. Hence, the federal judgment does not bar litigation of nonfederal claims in the state court." (7 Witkin, Cal. Procedure, supra, Judgment, § 355, p. 972; Merry v. Coast Community College Dist. (1979) 97 Cal.App.3d 214, 226; Hodge v. Mountain States Tel. & Tel. Co. (9th Cir. 1977) 555 F.2d 254, 261.) When a state court action is pending between the parties, as here, it is particularly unlikely that a federal court will retain jurisdiction to adjudicate state claims after dismissing federal claims before trial. (Merry v. Coast Community College Dist., supra, 97 Cal.App.3d at p. 226.) Further, a dismissal of state law claims by the federal court need not be "without prejudice" to preserve the plaintiff's right to pursue the matter in state court. (Id. at p. 228; Trans World Airlines, Inc. v. Hughes (S.D.N.Y. 1973) 359 F.Supp. 783.)
The United States Supreme Court has clarified that this is not an inflexible rule. "The statement simply recognizes that in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." (Carnegie-Mellon University v. Cohill (1988) 484 U.S. 343, 350, fn. 7.)
Kaye was entitled to pursue his section 1198.5 claim in state court after the federal court dismissed it. We disagree, however, with his assertion he was entitled to, indeed was required to, bring a new state court suit on the matter because the court in Kaye I lacked jurisdiction to hear the Labor Code claim absent a formal remand from the federal court.
In support of his jurisdictional argument, Kaye cites 28 United States Code section 1446(d) (hereafter section 1446(d)), which provides: "Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect removal and the State court shall proceed no further unless and until the case is remanded." (Italics added.)
Kaye also relies on Allstate Ins. Co. v. Superior Court (1982) 132 Cal.App.3d 670 (Allstate), which concerns the language of section 1446(d). In Allstate, the defendant insurance company (Allstate) causedan action for tortious breach of an insurance contract to be removed to federal court on the ground of diversity of citizenship. The plaintiff later moved for an order dismissing the case so he could file a new action in state court naming additional non-diverse defendants. The federal court dismissed the action without prejudice, and the plaintiff filed an amended complaint in the original state court action, which added employees of Allstate who were citizens of California. Allstate moved for an order striking the amended complaint on the ground the federal court's dismissal of the action, without a remand to the state court, terminated the original state court action and required the plaintiff to commence a new action if he intended to pursue the matter. The state court denied the motion on the ground the original action was merely suspended during the federal action. (Allstate, supra, 132 Cal.App.3d at pp. 673-674.)
When Allstate was decided, the current section 1446(d) was designated title 28 United States Code section 1446(e). (Allstate, supra, 132 Cal.App.3d at p. 675, fn. 5.) We use the current subdivision of the statute.
The Allstate court reversed the ruling. Relying on section 1446(d), the court explained: "The dismissal was entered when the federal court had exclusive jurisdiction of the action. The fact that the dismissal was 'without prejudice' permitted plaintiff to pursue his claims in another action, and this prospect was clearly portended throughout the proceedings in which he moved the federal court for dismissal. [Citation.] The dismissal without prejudice nevertheless terminated the action, and placed him in a 'legal position' as if he had never brought it. [Citation.] There having been a dismissal without remand, there was no action in which respondent court could 'resume' jurisdiction as plaintiff contends." (Allstate, supra, 132 Cal.App.3d at p. 676, italics added.) The appellate court held the trial court erred by allowing further proceedings in the original action. (Ibid.)
In contrast to the situation in Allstate, Kaye had successfully remanded a large portion of his case to state court in Kaye I before the federal court in Kaye II dismissed his remaining pendent state law claims. Since Kaye I was active, Kaye was not in the position of never having brought a state court action, and the state court was in a position to resume jurisdiction over any alternative theories of recovery for wrongful termination, including the Labor Code section 1198.5 theory. The removal statute provides that after removal, the state court "shall proceed no further unless and until the case is remanded."(28 U.S.C. § 1446(d), italics added.) The statute does not indicate that when parallel state court and federal court actions are pending on the same primary right, the state court lacks jurisdiction to consider a theory of recovery relevant to the state court action absent a formal remand. " 'The purpose of statutory construction is to discern the intent of Congress in enacting a particular statute.' [Citation.] 'The first step in ascertaining congressional intent is to look to the plain language of the statute.' [Citation.] 'The plain meaning of the statute controls, and courts will look no further, unless its application leads to unreasonable or impracticable results.' " (Robinson v. United States (9th Cir. 2009) 586 F.3d 683, 686-687.)
Because Kaye I was pending, Kaye was obligated to raise all theories pertaining to his primary right of continued employment in that action. As the court explained in its ruling, "[s]ince the purpose of the rule against splitting a cause of action is to prevent duplicative litigation, [Kaye] should have amended his complaint [in Kaye I] to avoid a third lawsuit involving the same subject matter."
We are unpersuaded by Kaye's argument that "any attempt at amendment would have been doomed to fail." He cites a declaration he filed in federal court in support of his motion to amend or alter the judgment in Kaye II, which states that at a January 25, 2008 case management conference in Kaye I, the judge handling the matter set trial for August 29, 2008, and he advised the parties "he would adhere to the original trial date in the absence of any remand order transferring additional state law issues for disposition in the state court proceedings." The federal court dismissed Kaye's section 1198.5 claim on June 10, 2008, and the superior court judge's remark several months earlier does not indicate he would have denied a motion to amend the complaint in Kaye I if brought within a reasonable time of the dismissal. In sustaining the demurrer in Kaye III on the ground of res judicata, the court determined Kaye had ample time to seek leave to amend Kaye I to revive his Labor Code theory. The dismissal occurred 81 days before the scheduled trial date and 52 days before the hearing on defendants' summary judgment motion, giving Kaye adequate time to protect his interests. Neither the federal court nor defendants are responsible for Kaye's predicament.
3
Further, Kaye asserts Kaye III was not barred because "[c]ollateral estoppel doesn't bar relitigation of issues that could have been raised but were not." (Original italics.) The doctrine of collateral estoppel, or issue preclusion, "provides that a party to an action, or one in privity with a party, is barred from subsequently relitigating issues actually litigated and finally decided in a prior proceeding." (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 694; Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.) Here, we are not concerned with issue preclusion, but with the aspect of res judicata pertaining to claim preclusion.
In Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896, footnote 7, our high court explained: "While the term 'res judicata' has been used to encompass both claim preclusion and issue preclusion, we here use the term 'res judicata' only to refer to claim preclusion. As we have noted, 'The doctrine of collateral estoppel is one aspect of the concept of res judicata. In modern usage, however, the two terms have distinct meanings.' "
4
Lastly, Kaye argues that under the permissive joinder statute he was not required to litigate the Labor Code issue in Kaye I, and instead he had the option of doing so. Code of Civil Procedure section 427.10, subdivision (a) provides: "A plaintiff who in a complaint... alleges a cause of action against one or more defendants may unite with such cause any other causes which he has... against any of such defendants." The statute is inapplicable because the section 1198.5 claim was not a separate cause of action, and merely one of several theories challenging the termination of his employment.
II
Private Right of Action
Although the res judicata ruling was dispositive, the court sustained the demurrer on the alternative ground that section 1198.5 claim provides no private right of action. Kaye's opening brief merely acknowledges the court's ruling on the issue. It develops no particular argument and cites no legal authority on the issue.
The appellant abandons an issue by failing to raise it in his or her opening brief. (Fidelity National Title Ins. Co. v. Schroeder (2009) 179 Cal.App.4th 834, 847, fn. 11; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) " 'Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before." [Citations.]' " (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.)
Kaye discusses the private right of action issue in his reply brief, but he offers no excuse for not addressing the issue earlier. Rather, he ignores his failure to do so. Accordingly, we deem the issue abandoned.
III
Petition for Writ of Mandate
Kaye asserts that since a writ of mandate is a remedy, it is not subject to demurrer. "Mandamus is an extraordinary remedy... available to enforce a number of rights and obligations." (3 Witkin, Cal. Procedure, supra, Actions, § 684, p. 902.) "A demurrer is not the appropriate vehicle to challenge a portion of a cause of action demanding an improper remedy." (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 384, italics added.) For instance, when the face of a complaint shows a prayer for punitive damages is improper, the defendant may attack the remedy through a motion to strike rather than a demurrer. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)
Here, however, defendants did not demur only to the portion of Kaye III pertaining to the remedy sought. Rather, the demurrer successfully challenged the entire action on the grounds of res judicata and the lack of a private right of action. Kaye cites no authority for the proposition that the court may not dispose of an entire action on demurrer if it includes a prayer for writ relief. Many opinions show that writ of mandate claims are subject to demurrer. (See, e.g., Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 672; Merchandising Concept Group, Inc. v. California Unemployment Ins. Appeals Bd. (2010) 181 Cal.App.4th 1274, 1278; Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 842, 861; City of Irvine v. Southern California Assn. of Governments (2009) 175 Cal.App.4th 506, 510.)
Given our conclusion, we are not required to address Kaye's argument that the court erred by finding the Board and Riger were not proper parties to the writ proceeding.
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
WE CONCUR: HUFFMAN, J., McDONALD, J.