Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. GIC865426, John S. Meyer, Judge.
HUFFMAN, Acting P. J.
This appeal, from a judgment of dismissal of this petition for writ of mandate, after an order sustaining demurrers without leave to amend, follows an unsuccessful appeal in an earlier similar declaratory relief action. (Rogers v. San Diego County Regional Airport Authority (Jan. 11, 2006, D046009) [nonpub. opn.]; our prior opinion.) The petition, the complaint, and the appeals were all brought by plaintiff and appellant Donald W. Rogers, as trustee under a private trust (plaintiff), against the San Diego County Regional Airport Authority (the Authority). (Code Civ. Proc., § 1085; all further statutory references are to this code unless noted.) Plaintiff alleges that he has a right and the Authority has a mandatory duty to consider, in public or private meetings, a proposed confidential disclosure agreement in which plaintiff would reveal to the Authority a proposed major airport site, which plaintiff characterizes as its trade secret. (Civ. Code, § 3426 et seq.)
The Authority responded to the petition with a demurrer, which the trial court sustained without leave to amend. A new trial motion was denied.
Plaintiff appeals the judgment of dismissal after demurrer, contending the petition is not barred by the doctrine of res judicata, or the public interest in the airport location process requires that even if res judicata would otherwise apply, an exception should be made here. Plaintiff's arguments are without merit and do not reflect any legitimate reading of the principles of res judicata and their application. (See Kopp v. Fair Political Practices Commission (1995) 11 Cal.4th 607 (Kopp).) We agree with the trial court that the petition is based on the same primary rights as the previous complaints and it therefore fails to state a cognizable claim for relief, and no amendment was requested or appropriate.
Moreover, the sanctions motion brought by the Authority is well grounded in the record, and we therefore award the amount requested ($13,770.50) as sanctions payable jointly by plaintiff and his attorney. (§ 907; Cal. Rules of Court, rule 8.276(e).)
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of analyzing the demurrer, the courts will accept as true the facts alleged in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
A. Prior Action and Opinion
In the prior action, plaintiff sought declaratory relief regarding his original proposed agreements, dated October 2003, regarding real property owned by his Airport Trust, which he believes to be "an alternate airport site which is a breakthrough solution to the perennial problem of relocating the San Diego regional airport to an alternate site which will accommodate future demands." The Authority refused to negotiate or enter into the proposed agreements, under which plaintiff would disclose its secret site to the Authority, but only if a proposed confidential disclosure agreement were first entered into for preservation of the trade secret, and only if a contingent compensation agreement were adopted to allow the trust to receive compensation through royalties based on gross airport revenues over a 95-year period (assuming the proposed site was eventually adopted).
In plaintiff's previous action, declaratory relief was sought in two respects: "(1) The plaintiff has a right and the Authority has a corresponding duty to have the trade secret reviewed, specifically under the conditions that plaintiff is setting (the proposed confidentiality agreement and contingent compensation agreement); and (2) the requested review on a confidential basis and the payment of royalties from airport revenues would not be prohibited by state law (e.g., Gov. Code, § 6250 et seq. [Public Records Act]; Gov. Code, § 54950 et seq. [Brown Act]; Pub. Resources Code, § 21000 et seq. [CEQA]; or Pub. Util. Code, §170000 et seq., creating the San Diego County Regional Airport Authority (the Airport Act) or by FAA regulations."
The trial court sustained without leave to amend the Authority's demurrer to that complaint, and that ruling was upheld by this Court in our prior opinion.
B. Current Action; Demurrer
In May 2006, plaintiff filed this petition for writ of mandate alleging the trust has a proprietary right or a trade secret in its identification of the alternate airport site. He contended that the Authority had failed to carry out its duty to hold a public hearing or open meeting to consider his latest proposal, dated April 3, 2006, i.e., "a proposed confidential disclosure agreement to the board of the authority which would, if signed, enable the trust to disclose its trade secret to the authority for review while retaining its proprietary interest in the trade secret." Plaintiff was no longer requiring a proposed contingent compensation agreement, as before.
Plaintiff therefore sought a writ compelling the Authority to "(A) Commence forthwith to review the alternative airport site of petitioner, including the airport layout and related work products. [¶] (B) Take reasonable steps to maintain the secrecy of the foregoing information unless otherwise agreed at any time in writing between respondent and petitioner."
The Authority brought a demurrer to the petition, on the grounds that the petition comprised the same cause of action as the previous declaratory relief complaint, and was therefore barred by res judicata. The Authority further contended that a writ of mandate was not appropriate to compel its exercise of its discretionary authority in any particular manner.
C. Current Ruling
After oral argument, the trial court sustained the demurrer without leave to amend. The court concluded in the ruling on review that in both of plaintiff's actions, the complaint and the petition, the trust was alleging it had a right to have its alternate airport site (trade secret) reviewed by the Authority, under the conditions which plaintiff set. The court interpreted the overriding issue in the first action as "whether the Airport Authority has the administrative discretion to determine the appropriate policy direction for the airport, by reviewing all available options of alternative sites, in accordance with its legislatively determined procedures." The court noted that the petition now framed the alleged duty of the Authority somewhat differently, and claimed that as a matter of law, the Authority must "treat any information provided by petitioner as if the information is a trade secret." However, in both actions, the alleged mandatory duty essentially amounted to the Authority's obligation to review all alternate airport sites pursuant to the procedures set forth in Public Utilities Code section 170048.
The court then found that the prior opinion was a final determination on the merits in the previous action, the same primary rights were alleged, and therefore the same issues could not now be relitigated. The court further found no "public interest" exception to the res judicata doctrine should apply here. (Kopp, supra, 11 Cal.4th 607.)
Plaintiff sought a new trial on the basis that some kind of reconsideration was appropriate, based on the great public interest in the matter of airport location. The trial court denied the motion, noting that the record discloses "it is petitioner's own prohibitive conditions that have thus far prevented review by the Airport Authority." The motion for sanctions was denied without prejudice. The Authority obtained a judgment of dismissal pursuant to the demurrer ruling and plaintiff appeals.
Pending appeal, the Authority submitted a motion for an award of monetary sanctions ($13,770.50), which was deferred to the merits panel.
DISCUSSION
For purposes of analyzing the ruling on demurrer, we give the pleading a reasonable interpretation, reading it as a whole, its parts in their context, to determine whether sufficient facts are stated to constitute a cause of action or a right to the relief requested. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318.) We review the legal sufficiency of the judgment, and not the reasoning of the trial court. (D'Amico v. Board of Medical Examiners (1974)11 Cal.3d 1, 19.)
We first must outline the general requirements for pleading a petition for writ of mandate, as compared to the principles for requesting declaratory relief. We then apply these rules to this factual context as alleged, in light of the standards for evaluating res judicata contentions. Finally, we resolve the sanctions motion.
I
PROCEDURAL RULES
"What is required to obtain writ relief is a showing by a petitioner of '(1) A clear, present and usually ministerial duty on the part of the respondent . . .; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty . . . .' [Citation.]" (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540.) Where the respondent has clearly abused its discretion in the manner of performance of its duty, relief in mandamus is available. (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 72, pp. 853-855.)
In comparison, a party may seek declaratory relief if a proper subject for such relief is pled, and there is an actual controversy about the rights and obligations of the party. (§ 1060.) In the prior opinion, this court was required to analyze the requirements for an action for declaratory relief, and stated such relief is not warranted even where a dispute may be "of broad general interest," in the absence of a true justiciable controversy. (Zetterberg v. State Dept. of Public Health (1974) 43 Cal.App.3d 657, 662 (Zetterberg).) Under section 1061, "The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances." This is a discretionary determination, subject to reversal only if that discretion is abused. (Zetterberg, supra, 43 Cal.App.3d at pp. 661, 665.) We found no such abuse of discretion in denying declaratory relief in the prior opinion.
Section 1060 provides: "Any person interested under a written instrument . . . or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time . . . ."
In Escamilla v. California Dept. of Corrections and Rehabilitation (2006) 141 Cal.App.4th 498, 511, this Court cited authorities to the effect that the label given to "a petition, action or other pleading is not determinative; rather, the true nature of a petition or cause of action is based on the facts alleged and remedy sought in that pleading. [Citations.]" The proper inquiry should be whether the facts alleged in the pleading are sufficient to support a claim for the type of specific recovery sought. (Ibid.) We therefore will compare the allegations in the two pleadings to determine any preclusive effect of the first judgment of dismissal.
II
RES JUDICATA PRINCIPLES
In Mycogen Corporation v. Monsanto Company (2002) 28 Cal.4th 888, 897 (Mycogen) the policy of res judicata is simply stated: "A clear and predictable res judicata doctrine promotes judicial economy. Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. ' "Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief." ' [Citation.]" To further define the two aspects of this doctrine: " 'Res judicata' describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, 'precludes relitigation of issues argued and decided in prior proceedings.' " (Mycogen, supra, at p. 896, citing Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)
In Levy v. Cohen (1977)19 Cal.3d 165, 171-172, the Supreme Court set out criteria for identifying when the doctrine should be applied. It "precludes parties or their privies from relitigating an issue that has been finally determined by a court of competent jurisdiction. [Citation.] 'Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action.' [Citation.] The application of the doctrine in a given case depends upon an affirmative answer to these three questions: (1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party to or in privity with a party to the prior adjudication? [Citations.]"
We are required to identify exactly what substantive claims, in terms of the primary rights asserted, may or must be deemed barred as a result of the prior dismissal. As set out in Mycogen, supra, 28 Cal.4th 888, 904, and Crowley v. Katleman (1994)8 Cal.4th 666, 681-682, the content of a " 'primary right is simply the plaintiff's right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: "Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief." [Citation.] The primary right must also be distinguished from the remedy sought: "The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other." [Citation.]' "
In determining whether a later proceeding is based on the same primary right as in an earlier action, courts will "compare the two actions, looking at the rights which are sought to be vindicated and the harm for which redress is claimed. [Citations.] 'Reference must be made to the pleadings and proof in each case. [Citations.]' [Citation.]" (Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Association (1998) 60 Cal.App.4th 1053, 1067 (COAST); also see Gamble v. General Foods Corp. (1991) 229 Cal.App.3d 893, 898.)
In Kopp, supra, 11 Cal.4th 607 at page 623, footnote 16, the Supreme Court applied an established rule that in the res judicata context, a "prior legal determination is not conclusive either if injustice would result or if the public interest requires that relitigation not be foreclosed. [Citation.]" There is no requirement for application of this "public interest exception" that the previous determination of the particular issue to be foreclosed was "erroneous." (Ibid.)
III
APPLICATION OF RULES
A. Comparison of Actions; Prior opinion
In the current action, plaintiff alleges the Authority has inappropriately excluded the trust's alternative proposed airport site from any public or private review, even though the Authority is under a mandatory duty to review all alternate airport sites. Plaintiff contends in the petition that there is no legal basis to exclude its site from review "only because [it] happen[s] to be protected by law as a trade secret." In other words, he argues that trade secret protections operate as a matter of law, not as a condition he is setting. (Civ. Code, § 3426 et seq.)
In the prior opinion, this Court resolved the issues regarding plaintiff's declaratory relief requests for review of his secret site and his proposed contingent compensation agreement, by looking to the proper nature of declaratory relief, and making jurisdictional determinations based upon the jurisdictional facts then alleged. We noted that "plaintiff is attempting to obtain a judicial declaration that the Authority's statutory duties to obtain public input must be carried out in a certain way, and that its current interpretation of applicable law is incorrect." We rejected plaintiff's theories on several bases. As relevant here, plaintiff could not show the Authority has a mandatory duty to enter into a certain type of contract or to pay plaintiff out of certain funds, and plaintiff could not plead any exception to the requirements of the statutory scheme creating the Authority that ensured that the public will be informed about the Authority's decisionmaking process. Further, we said:
"Plaintiff is not justified in asserting that the trial court mistakenly resolved the merits of the case at the pleadings stage of these proceedings, when it ruled that the Authority has already considered and rejected this alternative site for the Airport, in the belief that it was not in the Authority's or the public's best interest to enter into these agreements. Rather, read as a whole, the ruling implemented the trial court's view that no justiciable controversy is presented, because the Authority must be accorded the administrative discretion to determine the appropriate policy direction for the airport, by reviewing all available options of alternative sites, in accordance with its legislatively determined procedures. (§ 170048, subds. (a), (e), (h).) The Authority could appropriately consider plaintiff's proposals setting the conditions under which plaintiff's proposed site would be revealed, but then turn those proposals down, based upon its interpretation of its other duties, such as operating in the public interest through public disclosure of the sites actually being considered. (§§ 170040, 170028, subd. (a).) This is true whether the compensation agreement could be interpreted as applying to the review or actual adoption of the site."
We found the declaratory relief request defective on another point, and upheld the ruling on demurrer:
"Moreover, plaintiff is inappropriately seeking an advisory opinion about the validity of the subject proposed agreements and the scope of the Authority's administrative discretion to decide whether to enter into them. (See Younger v. Superior Court (1978) 21 Cal.3d 102, 119-120.) As stated in Wilson[ v. Transit Authority of Sacramento (1962)] 199 Cal.App.2d 716, 726: 'Even under the most liberal interpretation of "justiciability" there must be presented something more than a hypothetical question which, when resolved, would not be binding upon the parties, and which either party at its option would be free to reject. [Citations.]' Here, even if a declaratory judgment were to issue as plaintiff requests, the Authority would still be left with significant discretion to decide how to review any potential sites in carrying out its statutorily mandated objectives."
B. Current Pleading
To resolve the current appeal, we must examine plaintiff's arguments why the prior opinion was purportedly not issued on the merits, how this case is at all different from its predecessor, and whether any public interest exception should apply to permit relitigation.
First, plaintiff contends the previous judgment of dismissal should not have res judicata effect if not on the merits. (See 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 322, pp. 874-875.) Plaintiff makes a highly original argument that the dismissal of his previous action was not on the merits, since part of the reasoning for dismissal was the lack of jurisdiction to issue an advisory opinion in the guise of declaratory relief. Both parties discuss on this point the unusual facts and authority of Shore v. Shore (1954) 43 Cal.2d 677 (Shore), which was well summarized in 7 Witkin, supra, Cal. Procedure, Judgment, section 322, pages 874-875, as follows: "An annulment was awarded to the wife because the husband's prior spouse was living. But, finding the parties in pari delicto, the trial judge said that he 'makes no findings concerning the character of the property,' and 'declines for lack of jurisdiction to make any award of property alleged to be community in character.' " When the ex-husband sued again on a different theory to establish a one-half interest in the property based upon dealings that were said to be independent of the marriage relationship, the Supreme Court held that the judgment in the annulment action was res judicata on this basis: "Ordinarily, a judgment of dismissal is not on the merits, as where a court merely decides that it has no jurisdiction. But here the court really decided that the parties were not entitled to the aid of the law with respect to their property interests, being in pari delicto. This decision, like a dismissal because a contract sued on was void, is a determination of the merits. [Citations.]" (Ibid.)
These lessons of Shore, supra, 43 Cal.2d 677, about the reach of the res judicata doctrine, are further summarized in MIB, Inc. v. Superior Court (1980) 106 Cal.App.3d 228, 232 (MIB) in this manner: "[A] finding with respect to jurisdictional facts will be treated as res judicata in subsequent actions, although the dismissal is not res judicata on the merits of the underlying cause of action." (Ibid., italics added.) The court in MIB relied on this language from Shore: "[W]e conclude that although a judgment refusing to determine an issue on the ground of lack of jurisdiction is not ordinarily res judicata [citations], when the decision on the jurisdictional question is based upon a determination of the merits of an issue before the court, it constitutes a binding determination of that issue." (Shore, supra, at p. 681.)
In Shore, supra, 43 Cal.2d 677, the decision of the court in the annulment action was deemed to amount to much more than a decision on the issue of jurisdiction, because it also determined on the merits the claim about whether property must be divided equally as the community or joint property of the parties. (Id. at p. 680.) The Supreme Court explained: "The court did not merely decide that it lacked jurisdiction to award the property, it decided that because the parties were in pari delicto neither of them was entitled to legal assistance with respect to their property interests. Accordingly, when the decree of annulment is interpreted in the light of the findings of fact and conclusions of law [citations] it is clear that it was tantamount to a dismissal of the respective claims of the parties with respect to their property interests." (Id. at p. 680; also see Nichols v. Canoga Industries (1978) 83 Cal.App.3d 956, 967 ["A dismissal for lack of jurisdiction is not res judicata [citations], and does not by the operation of collateral estoppel bar relitigation of substantive issues raised [citation] except as to issues necessary for the determination of jurisdiction"], italics added.)
As applied here, these rules indicate that when we undertook to analyze the declaratory relief issues presented in the prior opinion, we necessarily had to evaluate what the proposed declaratory relief would have accomplished and on what subject. This required our analysis of the nature of the rights that plaintiff was asserting, essentially, to have the Authority perform its duties in a particular way. The current petition for writ of mandate seeks different relief, but on the same basic claim of right. The identical primary right is asserted in both of these actions, that plaintiff somehow has a right to dictate how the trust's proposed alternative site shall be taken under consideration, in the discretion of the Authority. We previously said plaintiff had no such right, and this amounted to a decision on a jurisdictional question that required a determination of the merits of the issue before the court, i.e., the nature of the duty of the Authority; "it constitutes a binding determination of that issue." (Shore, supra, 43 Cal.2d at p. 681.)
Although plaintiff attempts to make a distinction that his purported trade secret protection is imposed as a matter of statute and law, and therefore is not quite the same as a condition he individually is imposing, this theory is unpersuasive and without supporting authority. Instead, he has presented no basis on which to depart from the previous analysis of the duties of the Authority, as outlined by statute, because the same rights and harm are asserted in each action. (COAST, supra, 60 Cal.App.4th 1053, 1067.)
Moreover, in addition to our prior opinion's interpretation of the nature of the Authority's duties to conduct the airport site search, consistent with the governing statutory scheme, we also applied that interpretation by determining the plaintiff's desired procedure did not amount to a legitimate subject of declaratory relief. We could not have reached those conclusions without an understanding of the primary rights that were being asserted by plaintiff. Here, there is no reason why the prior opinion's conclusions regarding the findings of jurisdictional facts about the unavailability of declaratory relief should not be utilized to analyze the petition's same claims of a mandatory duty on the part of the Authority to consider plaintiff's proposals in the prescribed manner that plaintiff suggests. The issues necessary for the determination of jurisdiction over a declaratory relief request are the same in this context as the issues necessary to determine if a request for relief in mandamus, based on the same duties, has been adequately pled. The previous dismissal for lack of jurisdiction is res judicata as to those issues necessary for the determination of any right to the relief requested. Since the same right is again asserted here, the bar of res judicata exists. (See MIB, supra, 106 Cal.App.3d 228, 234-235.)
In conclusion, although plaintiff believes that the significant public interest in the location of an updated airport justifies a determination that relitigation should be permitted, he has failed to bring his petition within that exception. He relies on Kopp, supra, 11 Cal.4th 607, 623, footnote 16, to assert that the prior legal determination in the prior opinion should not be deemed to be conclusive, assuming that "the public interest requires that relitigation not be foreclosed." This argument is well answered and disposed of by the comment of the trial court in denying the unmeritorious new trial motion, to the effect that the record discloses "it is petitioner's own prohibitive conditions that have thus far prevented review by the Airport Authority." Plaintiff cannot appropriately invoke the public interest when he has refused to follow any of the proper procedures to obtain review by this public agency of his proposed alternative site. In fact, his actions have inarguably resulted in a waste of public funds. We conclude the trial court acted within its discretion and in accordance with applicable law in sustaining the demurrer without leave to amend.
IV
SANCTIONS MOTION
Pursuant to section 907 and California Rules of Court, rule 8.276(e), the Authority seeks an award of sanctions for a frivolous appeal. It contends plaintiff has presented no new arguments or authority, and has not acknowledged controlling law, such that any reasonable attorney would conclude this appeal is meritless. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650; Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1431-1434 (Pollock).)
We agree. This opinion constitutes our statement of the reasons for imposing sanctions. (Pollock, supra, 112 Cal.App.4th at p. 1434.) The Authority's attorney's declaration requesting an award of attorney fees as sanctions asserts that based on the hours expended (38.2 total) and the usual hourly rate, an award of $13,770.50 in attorney fees and costs would be appropriate. In light of the lack of legal or logical support for plaintiff's arguments, an award of $13,770.50 in sanctions, payable jointly by plaintiff and his attorney, is well warranted at this time.
DISPOSITION
The judgment of dismissal is affirmed. Sanctions are awarded to respondent in the amount of $13,770.50 plus the ordinary costs on appeal, payable jointly by plaintiff and his appellate attorney.
WE CONCUR: HALLER, J., O'ROURKE, J.