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Filed 6/4/99
CERTIFIED FOR PARTIAL PUBLICATION1
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHAKER SUIDAN, D029301
Plaintiff and Appellant,
v. (Super. Ct. No. 705060)
COUNTY OF SAN DIEGO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego
County, Henry Wien, Judge. (Retired judge of the Imperial County
Superior Court, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.) Affirmed.
Frank E. Rogozienski and Rhoda L. White for Plaintiff and
Appellant.
John J. Sansone, County Counsel, Diane Bardsley, Chief
Deputy County Counsel, and William H. Songer, Deputy County
Counsel, for Defendants and Respondents.
1 Pursuant to California Rules of Court, rule 976.1, this
opinion is certified for publication with the exception of parts
II, III, IVA and IVC.
Plaintiff Chaker Suidan appeals a judgment favoring
defendants County of San Diego (County), Superior Court of
California for the County of San Diego (Superior Court), and
Kenneth E. Martone on Suidan's complaint for violation of
Government Code2 section 69904, fraud, and breach of the implied
covenant of good faith and fair dealing. Suidan contends the
court erred in sustaining without leave to amend defendants'
demurrer to his claim for breach of the implied covenant,
granting defendants' motion for summary judgment/summary
adjudication on his claim for violation of section 69904, and
denying him leave to file an amended complaint alleging fraud
against Martone. We affirm the judgment.
I
INTRODUCTION
After 17 years of working for the County Clerk and then the
Superior Court, Suidan was discharged from his employment by the
Superior Court's executive officer Martone. After his employment
termination was affirmed by the Superior Court's personnel
committee, Suidan sued defendants in the federal district court
on various theories based on his assertedly wrongful termination.
Ultimately, the federal appellate court affirmed portions of a
defense summary judgment, but reversed another portion of the
summary judgment and remanded the matter to the federal district
court. Upon remand, the federal district court granted another
2 All statutory references are to the Government Code unless
otherwise specified.
2
defense summary judgment on some of Suidan's claims and dismissed
for lack of federal jurisdiction Suidan's remaining claim based
on section 69904.3
Suidan then filed this lawsuit against defendants in state
court for violation of section 69904, fraud, and breach of the
implied covenant of good faith and fair dealing. On the ground
of res judicata/collateral estoppel, the court sustained without
leave to amend defendants' demurrer to Suidan's claim for breach
of the implied covenant. Further, concluding section 698984
permitted the Superior Court to delegate to its executive officer
the authority to remove Superior Court employees, the court
granted defendants' motion for summary judgment on Suidan's claim
for violation of section 69904. Finally, on the alternative
grounds of res judicata/collateral estoppel and the statute of
limitations, the court denied Suidan's request to file an amended
complaint to allege with specificity a fraud claim against
Martone.
3 Section 69904, subdivision (b) provides in relevant part:
"All personnel appointed by the judges pursuant to this or any
other section shall be exempt from civil service and shall be
attachés of the court. They shall serve at the pleasure of a
majority of the judges of the court and may at any time be
removed by the majority of the judges in their discretion."
4 Section 69898, subdivision (a) provides in relevant part:
"Any superior court may appoint an executive officer who shall
hold office at the pleasure of the court and shall exercise such
administrative powers and perform such other duties as may be
required of him by the court. The court shall fix the
qualifications of the executive officer and may delegate to him
any administrative powers and duties required to be exercised by
the court. . . ."
3
II
FACTUAL BACKGROUND
In 1974 Suidan began civil service employment as an
accountant for the County Clerk. Suidan eventually served as the
chief of the County Clerk's accounting division.
On May 11, 1988, under California Rules of Court, rule 207,5
the Superior Court adopted personnel rules containing a provision
delegating to the Superior Court's executive officer authority
over personnel matters including removal of Superior Court
employees.6
5 As amended effective July 1, 1991, rule 207 of the
California Rules of Court provided in relevant part: "In courts
having an executive officer or court administrator, selected by
the judges of the court and under the direction of the presiding
judge, the officer or administrator shall, where not inconsistent
with the authorized duties of the clerk of the court, [¶] (1)
supervise the court's staff and, after taking into consideration
section 27 of the Standards of Judicial Administration, draft for
court approval and administer a court approved personnel plan or
merit system for court-appointed employees, which may be the same
as the county personnel plan, that provides for wage and job
classification, recruitment, selection, training, promotion,
discipline, and removal of employees of the court . . . ." The
amendment effective July 1, 1991, added the underscored language
to the version of rule 207 that had been adopted effective
January 1, 1985.
6 San Diego Superior Court rule 1.1 provided in relevant part:
"Pursuant to Rule 207 of the California Rules of Court, the
Executive Officer under the direction of the Presiding Judge
shall: [¶] a. Supervise the court's staff and administer a
court approved personnel plan or merit system for wage and job
classification, recruitment, selection, training, promotion,
discipline and removal of employees of the court . . . ."
San Diego Superior Court rule 4.3 provided: "All court
employees serve at the pleasure of the court and may at any time
be removed from Superior Court service. Court employees serving
in positions listed in Section 2.13.a [(Court Executive
Officer/Jury Commissioner and Juvenile Court Referee)] may be
4
On December 1, 1989, Martone wrote to Suidan that in January
1990 the Superior Court would assume various functions previously
performed by the County Clerk's office and that employees
performing those functions would be appointed into Superior Court
service. As part of such transition, Martone by letter offered
Suidan employment as a senior accountant with the Superior Court.
Martone's letter to Suidan also stated: "As an employee in
Superior Court service, you will be governed by the Personnel
Rules of the Superior Court and will serve at the pleasure of the
Executive Officer of the Superior Court. You will no longer be
part of the Classified Service of the County of San Diego, and
will not be subject to the rules of the Civil Service
Commission." Attached to Martone's letter was a copy of the
Superior Court's personnel rules.
On December 21, 1989, Suidan accepted Martone's offer of
Superior Court employment.
In January 1990 Suidan's position was transferred from the
County Clerk to the Superior Court.
In January 1991, after the County's investigation of
financial mismanagement allegedly having occurred in 1988 and
1989 in the County Clerk's accounting division, Suidan was
criminally charged with embezzlement of public moneys and
removed by the majority of the Superior Court Judges. All other
court employees may be removed by the Executive Officer. The
order of removal may be presented to the employee at any time
without notice or hearing and shall be in writing. An employee
may be placed on leave with or without pay pending investigation
and possible removal."
5
fraudulent appropriation by a public officer. (Pen. Code,
§§ 424.1, 504/487.1, 514.)
On March 14, 1991, the Superior Court's Executive Officer
Martone terminated Suidan's employment. Martone concluded that
Suidan "mismanaged the handling of [juvenile court] cash receipts
resulting in their loss to the County," Suidan "did not institute
necessary accounting controls while in the position of
supervising the [County Clerk's] Accounting Division," and Suidan
was "not competent to perform" the duties of a senior accountant
for the Superior Court. Martone based his authority to terminate
Suidan's employment on the Superior Court's personnel rules.
Before terminating Suidan, Martone did not consult with any
Superior Court judge with respect to the termination.
In December 1991 a jury acquitted Suidan of the criminal
charges of embezzlement and fraudulent appropriation.
In September 1992 Suidan filed a lawsuit against defendants
in federal district court involving the circumstances of his
employment termination. (S.D. Cal., case No. 92-394B (BTM).)
In January 1993, upon Suidan's request for review of
Martone's decision to terminate Suidan's employment, the Superior
Court personnel committee affirmed Martone's discharge of Suidan
as not constituting an abuse of discretion.
In March 1993 Suidan filed a first amended complaint in his
federal lawsuit against defendants. Suidan's first amended
complaint alleged claims for deprivation of his civil rights to
procedural due process and equal protection (42 U.S.C. § 1983),
breach of express or implied contract, breach of the covenant of
6
good faith and fair dealing, malicious prosecution, and
indemnification.
In April 1993 the federal district court dismissed Suidan's
malicious prosecution claim.
In August 1993 the federal district court granted summary
judgment favoring defendants on Suidan's remaining claims.7
Suidan appealed to the federal appellate court.
In November 1995 the federal appellate court affirmed the
summary judgment favoring defendants on Suidan's indemnification
claim but reversed on the issue whether termination of Suidan's
employment violated California statutory law. The federal
appellate court concluded: "The County has failed to establish
in its motion for summary judgment that a majority of the judges
ever exercised their discretion to terminate Suidan's employment.
Unless they did so, his termination violated California
Government Code § 69904. We, therefore, reverse the summary
judgment and remand to the district court. In light of our
7 In granting defendants' motion for summary judgment, the
federal district court concluded that "(1) as an at-will
employee, [Suidan] had no property interest in his employment,
and the post-termination hearing was sufficient to satisfy
[Suidan's] liberty interest in his employment; (2) the terms of
public employment in California are governed by statute, so
[Suidan] possessed no express or implied contract of employment;
(3) without any type of employment contract, there can be no
breach of the implied covenant of good faith and fair dealing;
and (4) public entities are not required to provide
indemnification for the defense of a criminal action brought
against an employee."
7
holding on the statutory violation, we need not reach Suidan's
constitutional due process or other state law contract claims."
On March 13, 1996, after remand of Suidan's federal lawsuit
to the federal district court, a majority of the then Superior
Court judges voted to terminate Suidan's employment retroactively
to March 14, 1991.
In June 1996 the federal district court granted defendants'
renewed motion for summary judgment on Suidan's claims for
deprivation of civil rights, breach of contract, and breach of
the implied covenant of good faith and fair dealing. Based upon
its interpretation of the federal appellate court's November 1995
opinion, the federal district court also stated Suidan would have
until August 1, 1996, to supplement his complaint by alleging a
cause of action for termination of statutory employment in
violation of section 69904. The federal district court further
ordered, "[I]f [Suidan] supplements his complaint by August 1,
1996, the supplemental complaint shall then be DISMISSED for lack
of federal jurisdiction, on the condition that: [¶] (i) should
[Suidan] file a complaint in state court setting forth a cause of
action for termination in violation of Cal. Gov. Code § 69904,
the state court not dismiss the complaint on the grounds that the
complaint is barred by the statute of limitations; and [¶]
(ii) if the state court dismisses the complaint on statute of
limitations grounds, [Suidan] shall be permitted to reinstate his
8
case in federal court and proceed with the statutory violation
claim."8
Suidan appealed to the federal appellate court the federal
district court's granting of defendants' renewed motion for
summary judgment. Suidan also proceeded to file this lawsuit.
III
SUPERIOR COURT PROCEEDINGS
On October 30, 1996, Suidan commenced this lawsuit by filing
a complaint against defendants for violation of section 69904,
fraud, and breach of the implied covenant of good faith and fair
dealing.
On November 27, 1996, defendants demurred to Suidan's
complaint.
On February 3, 1997, after hearing, the court sustained
without leave to amend defendants' demurrer to Suidan's claim for
breach of the implied covenant of good faith and fair dealing "as
res judicata and collateral estoppel applies." The court also
sustained without leave to amend the demurrers of the County and
the Superior Court to Suidan's claim for fraud. However, "on the
basis of equitable tolling," the court overruled Martone's
demurrer to Suidan's claim for fraud. The court also overruled
defendants' demurrer to Suidan's claim for violation of section
8 The federal district court noted: "Should [Suidan] choose
to amend his complaint, [Suidan] shall not be barred from
proceeding with the claim in state court on statute of
limitations grounds, insofar as this Court finds that the
supplemental statutory claim should relate back to the original
date of filing of the complaint."
9
69904 since "the issue would be better presented in a motion for
summary judgment."
On March 18, 1997, defendants answered Suidan's complaint's
claim for violation of section 69904. Defendants' answer alleged
that under the court's ruling on demurrer, no response was
required to Suidan's claims for fraud, and breach of the implied
covenant of good faith and fair dealing.
On April 25, 1997, Suidan filed a case management conference
questionnaire indicating the pleadings were in final form.
On May 1, 1997, defendants filed a motion for summary
judgment/summary adjudication on Suidan's claim for violation of
section 69904. Defendants asserted the Superior Court lawfully
delegated to its executive officer the authority to remove
Superior Court employees. Defendants also asserted that since
the demurrer was sustained as to all defendants named in Suidan's
fraud claim, a defense judgment on that claim was appropriate.
On June 9, 1997, defendants' summary judgment/summary
adjudication motion came on for hearing. Indicating it was not
prepared to hear the issue whether Martone was a named defendant
in Suidan's fraud claim, the court stated it could not make a
ruling "until a true motion to amend to add Kenneth Martone as a
party to the action is filed." After hearing, the court took
defendants' summary judgment/summary adjudication motion under
submission.
On June 13, 1997, the court entered its ruling granting
defendants' motion for summary judgment/summary adjudication.
The court concluded that under section 69898 the Superior Court
10
could lawfully delegate to its executive officer the authority to
remove Superior Court employees.
On June 24, 1997, Suidan filed a motion for leave to file a
first amended complaint to insert "the inadvertently omitted
name" of Martone into the heading of the fraud claim and to
augment portions of the specific allegations of fraud as well as
portions of the background factual allegations.
On August 18, 1997, after hearing, the court entered a
ruling denying Suidan's motion for leave to file a first amended
complaint. The court determined that under the doctrine of res
judicata Suidan's proposed fraud cause of action against Martone
was barred by the federal court judgment against Suidan on his
claim based on the "primary right" not to be terminated
arbitrarily and without good cause. Alternatively, the court
determined Suidan's proposed fraud cause of action against
Martone was time barred.
On September 16, 1997, the court entered judgment favoring
defendants against Suidan. Suidan appeals.9
9 We have been informed that during the pendency of this
appeal, the federal appellate court in September 1998 reversed
the defense summary judgment on Suidan's claim for deprivation of
civil rights. In concluding the federal district court erred in
not granting Suidan relief on his claim under 42 United States
Code section 1983, the federal appellate court stated: "For
personnel appointed for employment in the superior courts, Cal.
Gov. Code § 69904(b) creates a constitutionally protected
property interest to be removed only by the exercise of
discretion of a majority of the judges. . . . [¶] An advance
delegation to the Executive Officer to exercise his discretion as
to whether an employee should be removed does not fulfill the
statutory requirement that removal is to be 'by the majority of
the judges in their discretion.'" (Underscoring in original.)
11
IV
DISCUSSION
Suidan seeks reversal and remand for trial on his claim
against the County and the Superior Court for breach of the
implied covenant of good faith and fair dealing, his claim
against the Superior Court for violation of section 69904, and
his claim against Martone for fraud.
A
Demurrer to Suidan's Claim for Breach of Covenant
of Good Faith and Fair Dealing
On the ground of res judicata/collateral estoppel, the court
in this lawsuit sustained without leave to amend defendants'
demurrer to Suidan's claim for breach of the implied covenant of
good faith and fair dealing. Asserting the court erred in
disposing of his implied covenant claim by demurrer, Suidan
However, the federal appellate court's decision is not final
or binding since, as we have been informed, defendants have filed
a petition for rehearing in the federal appellate court.
Further, in November 1998 the federal appellate court filed an
order stating that in light of defendants' petition for rehearing
and suggestion for rehearing in banc, "the parties are requested
to inform the court of the decision of the state appellate
court."
In any event, we are not bound by the federal appellate
court's interpretation of section 69904. (Campbell v. Superior
Court (1996) 44 Cal.App.4th 1308, 1317; Kalfountzos v. Hartford
Fire Ins. Co. (1995) 37 Cal.App.4th 1655, 1661; Spencer v. Lowery
(1991) 235 Cal.App.3d 1636, 1639; Operating Engineers &
Participating Employees etc. Fund v. Weiss Bros. Construction Co.
(1990) 221 Cal.App.3d 867, 879, fn. 11; see also Droeger v.
Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 36, fn. 6.)
Moreover, based upon our own analysis, infra, we find the federal
appellate court's apparent construction of section 69904 to be
unpersuasive.
12
contends the breach of the implied covenant alleged in this
lawsuit was "broader" than the breach alleged in his first
amended complaint in the federal action and encompassed conduct
occurring after the federal summary judgment was rendered,
particularly the 1996 retroactive termination of his employment
on which no court had yet ruled. Hence, Suidan concludes that
since his federal and state claims were assertedly not identical,
the court erred in applying the doctrine of res judicata/
collateral estoppel.
We review "the validity of the court's action in sustaining
a demurrer, not its reasons . . . ." (Lee v. Bank of America
(1990) 218 Cal.App.3d 914, 919.) On this record the court in
this lawsuit properly sustained without leave to amend
defendants' demurrer to Suidan's implied covenant claim as barred
by the doctrine of res judicata/collateral estoppel. Further,
the ruling sustaining defendants' demurrer was correct because
Suidan's implied covenant claim was devoid of contractual
underpinning. Moreover, since the ruling on the implied covenant
claim was proper with respect to the March 1991 termination of
Suidan's employment, we need not reach any issue involving the
March 1996 attempt to terminate his employment retroactively.
1
Res Judicata/Collateral Estoppel
(a)
The Law
"'The doctrine of res judicata precludes parties or their
privies from relitigating a cause of action that has been finally
13
determined by a court of competent jurisdiction. 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.'" (Martin v.
Martin (1970) 2 Cal.3d 752, 758.) "A federal court judgment has
the same effect in the courts of this state as it would in a
federal court. [Citations.] The federal rule is that a judgment
or order, once rendered, is final for purposes of res judicata
until reversed on appeal or modified or set aside in the court of
rendition." (Id. at p. 761, fn. omitted.)
"In determining the validity of a plea of res judicata three
questions are pertinent: Was the issue decided in the prior
adjudication identical with the one presented in the action in
question? Was there a final judgment on the merits? Was the
party against whom the plea is asserted a party or in privity
with a party to the prior adjudication?" (Bernhard v. Bank of
America (1942) 19 Cal.2d 807, 813; cited with approval, Martin v.
Martin, supra, 2 Cal.3d at pp. 763-764.) As we shall explain,
those requirements for application of the doctrine of res
judicata/collateral estoppel were present here.
(b)
Suidan's Pleadings
In determining the propriety of the order sustaining
defendants' demurrer to Suidan's claim in this lawsuit for breach
of the implied covenant of good faith and fair dealing, we accept
as true the material facts properly pleaded by Suidan and
14
reasonable inferences from those facts. (Marshall v. Gibson,
Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)10
Suidan pleaded claims for breach of the implied covenant and
fair dealing in both his first amended complaint filed in federal
court in March 1993 and his complaint filed in October 1996 in
this lawsuit. With respect to matters occurring before filing of
the first amended complaint in the federal lawsuit, the material
allegations of those two claims were virtually identical and,
indeed, for the most part pleaded in the same language.11 The
10 Contrary to Suidan's contention, res judicata/collateral
estoppel may properly be considered on demurrer based on properly
pleaded material facts and judicially noticed matters. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318; Evid. Code, § 452, subd.
(d)(2).) In ruling on defendants' demurrer to Suidan's complaint
in this lawsuit, the court at defendants' request judicially
noticed the August 1993 federal district court order granting
summary judgment favoring defendants against Suidan, the November
1995 decision from the federal appellate court, and the June 1996
federal district court order granting defendants' renewed motion
for summary judgment against Suidan. Further, in pleading his
implied covenant claim in his complaint in this lawsuit, Suidan
alleged that in March 1993 he filed a first amended complaint in
the federal district court and also made express factual
allegations about the federal court determinations of August
1993, November 1995 and June 1996.
11 The common allegations of both pleadings included:
In January 1974 Suidan entered into an employment
relationship with the County where he was employed as an
accountant and a classified employee with vested rights to
continued employment in the position of chief of the County
Clerk's accounting division. Suidan excelled in his role, was
promoted to "senior accountant," consistently received "above
average" performance evaluation ratings, and was given salary
increases.
In 1986, acting out of prejudice against Suidan's
Palestinian nationality, the presiding judge of the Superior
Court instructed that Suidan be fired.
On January 9, 1990, without just cause, Suidan was removed
from his position with the County Clerk's accounting division for
15
alleged misconduct involving matters under investigation. Suidan
was denied the rights afforded to County classified employees and
was not given a pre-termination hearing, a post-termination
hearing, or the right to appeal.
On January 12, 1990, Suidan's employment position was
transferred from the County Clerk to the Superior Court's
executive officer although his place of employment, duties and
responsibilities remained the same. Suidan acquiesced in the
transfer in order to retain his job.
On January 30, 1991, as sanctioned and ordered by
defendants, Suidan was criminally charged with embezzlement of
public moneys and fraudulent appropriation by a public officer
involving actions occurring between January 1, 1988, and December
31, 1989, while Suidan had been employed by the County Clerk.
On February 5, 1991, in his official capacity as the
Superior Court's executive officer, Martone placed Suidan on
administrative leave and Suidan was required to exhaust his
accrued annual leave balance.
On March 14, 1991, Suidan's employment was summarily
terminated for alleged misconduct occurring while he was employed
by the County Clerk. With the consent of the County and the
Superior Court, Martone signed the order of removal in his
official capacity as the Superior Court's executive officer.
Suidan was denied the rights afforded to County classified
employees and not given a pre-termination hearing. Suidan's
right to appeal was limited to a closed session review by the
Superior Court's personnel committee outside his presence.
The investigation used to support Suidan's employment
termination and the criminal charges against him was conducted by
defendants in disregard of the true facts, was based upon an
incompetent and unreasonable audit not complying with generally
accepted accounting principles, and ignored material facts
contrary to defendants' desired findings.
During his 17 years of continuous employment with the County
and then the Superior Court, Suidan consistently received "'above
average' performance reviews, promotions and merit raises."
Suidan received many assurances he would not be terminated
arbitrarily or without good cause. Suidan reasonably relied on
oral representations, assurances and promises about the causes
and procedures for employee discharge. Although Suidan performed
all the duties of his employment, the County and the Superior
Court breached the implied covenant of good faith and fair
dealing by maliciously discharging him in bad faith and without
good cause, a pre-termination hearing or an opportunity to be
heard. Suidan was discharged not for any actual misconduct but
instead because of his Palestinian nationality.
16
factual differences between the two claims were primarily this
lawsuit's complaint's references to the federal proceedings12 and
to the 1996 retroactive termination of Suidan's employment.13
The legal differences between the two claims were primarily this
lawsuit's complaint's addition of section 69904 as a theory of
liability14 and allegations that the implied covenant arose from
12 Suidan's complaint in this lawsuit alleged:
In March 1993 Suidan filed his first amended complaint
against defendants in his federal court lawsuit.
In August 1993 the federal district court granted summary
judgment favoring defendants against Suidan. However, on
Suidan's appeal, rejecting defendants' contention that his
employment could be terminated by Martone without a majority vote
of the Superior Court judges, the federal appellate court
reversed the summary judgment in part and remanded the matter to
the federal district court.
In June 1996 the federal district court renewed its summary
judgment on Suidan's claims not expressly reversed by the federal
appellate court, granted Suidan leave to amend his federal
complaint to allege wrongful termination based upon violation of
section 69904, and then dismissed the amended complaint for lack
of federal jurisdiction. Suidan again appealed to the federal
appellate court and also filed this lawsuit.
13 Suidan's complaint in this lawsuit alleged: On March 13,
1996, Suidan's employment was terminated by a majority vote of
the then judges of the Superior Court, nunc pro tunc, to be
retroactively effective on March 14, 1991; and such retroactive
employment termination occurred without notice to Suidan or
opportunity to be heard and was not based on any actual
misconduct but instead upon defendants' desires to avoid the
federal appellate court ruling and to cover up their own
misconduct.
14 Suidan's complaint in this lawsuit alleged: The March 14,
1991, termination of Suidan's employment occurred without a
majority vote of the Superior Court judges and without compliance
with section 69904; and the 1996 retroactive termination of
Suidan's employment also failed to comply with section 69904.
17
such statute instead of from an express or implied contract
between the parties.15
15 Suidan's first amended complaint in his federal lawsuit
alleged: During his 17 years of continuous employment, Suidan
received assurances he would not be terminated without a pre-
termination hearing or opportunity to be heard; relying on his
evaluations, promotions, raises and assurances of continued
employment and his rights as a civil service employee, Suidan
believed he could not be terminated except for good cause and
only after a pre-termination hearing and opportunity to be heard;
based upon the oral representations and promises made by the
County and the Superior Court, Suidan had an employment contract
with the County and then with the Superior Court that he would be
employed as long as his performance was satisfactory and would
not be discharged without good cause and only after a pre-
termination hearing and opportunity to be heard; Suidan's
employment contract with the County and the Superior Court
contained an implied covenant of good faith and fair dealing
obligating those defendants to perform fairly and in good faith
the terms of such contract and to refrain from doing anything to
impede Suidan's performance of any condition of the contract or
deprive Suidan of the benefits of the contract; Suidan's
discharge was based not on actual misconduct but on his
Palestinian nationality; and defendant's motives were extraneous
to the employment relationship and intended to deprive Suidan of
the benefits of such relationship. (Italics added.)
However, Suidan's complaint in this lawsuit alleged: During
his 17 years of continuous employment, Suidan received false
assurances he would not be terminated without compliance with the
policies, procedures and laws applying to his employment;
defendants concealed from Suidan that Martone would be given
power to terminate Suidan's employment; defendants made such
representations and concealed material facts to induce Suidan to
continue his employment with the County and the Superior Court;
unaware of the falsity of such representations and the material
omissions until his removal from his position and termination of
his employment, Suidan justifiably relied on the statements to
his detriment; Suidan's employment with the County and the
Superior Court contained an implied covenant of good faith and
fair dealing obligating those defendants to perform fairly and in
good faith the terms of their employment of Suidan and to refrain
from doing anything to deprive Suidan of the benefits of his
employment or impede Suidan's performance of any condition of his
employment; the March 1991 termination of Suidan's performance
without a majority vote of the Superior Court judges violated the
implied covenant; and defendants' desires to avoid the federal
18
(c)
Analysis
Suidan's claim in this lawsuit for breach of the implied
covenant of good faith and fair dealing allegedly arising out of
the parties' employment relationship was based upon defendants'
assertedly wrongful termination of his employment in March 1991
and retroactively in March 1996. However, at the time of
defendants' demurrer to Suidan's implied covenant claim in this
lawsuit, summary judgment had been granted favoring defendants on
Suidan's similar claim in his federal action founded on the March
1991 termination of his employment. Specifically, with respect
to Suidan's federal claim for breach of the implied covenant, the
federal district court in June 1996 reaffirmed the portions of
its August 1993 ruling providing that "the terms of public
employment in California are governed by statute, so [Suidan]
possessed no express or implied contract of employment" and
"without any type of employment contract, there can be no breach
of the implied covenant of good faith and fair dealing." Under
applicable federal law, the federal district court's summary
judgment favoring defendants on Suidan's implied covenant claim
was final at the time of defendants' demurrer in this lawsuit and
thus precluded Suidan from relitigating such claim here. (Martin
appellate court ruling and to cover up their own misconduct by
acting to terminate Suidan's employment retroactively in 1996
constituted motives extraneous to the parties' employment
relationship and were intended to deprive Suidan of the benefits
of such relationship. (Italics added.)
19
v. Martin, supra, 2 Cal.3d at pp. 758, 761-762; Shin v. Superior
Court (1994) 26 Cal.App.4th 542, 553-554, fn. 4.16)
Contrary to Suidan's contention, the fact that his complaint
in this lawsuit challenged his March 1996 retroactive employment
termination in addition to his March 1991 termination does not
compel a contrary result. The federal district court's June 1996
summary judgment constituted a final determination that the March
1991 termination of Suidan's employment was proper for purposes
of his claim for breach of the implied covenant of good faith and
fair dealing. Upon such proper termination of Suidan's
employment in March 1991, the parties' employment relationship
ceased and defendants' implied duties, if any, based on an
ongoing employment relationship also ceased. Thus, once Suidan's
March 1991 employment termination was determined by the federal
district court in June 1996 to have been properly terminated for
purposes of Suidan's implied covenant claim, any issue of the
propriety or effectiveness of the attempted retroactive
employment termination in March 1996 was rendered moot.17
16 The federal court's summary judgment favoring defendants on
Suidan's implied covenant claim was not rendered ineffective
merely because it was on appeal at the time of defendants'
demurrer in this lawsuit. (Shin v. Superior Court, supra, 26
Cal.App.4th at pp. 553-554, fn. 4.)
17 Indeed, Suidan acknowledges that the Superior Court judges'
March 1996 attempt to terminate his employment retroactively was
a "legal nullity" if Martone's actions in terminating Suidan's
employment in March 1991 were taken under legally delegated
statutory authority.
20
2
No Contract Between Suidan and Defendants
Further, even if the 1996 federal district court summary
judgment favoring defendants on Suidan's implied covenant claim
were deemed to lack res judicata/collateral estoppel effect, we
would nonetheless uphold the ruling sustaining defendants'
demurrer to Suidan's implied covenant claim in this lawsuit.
(Lee v. Bank of America, supra, 218 Cal.App.3d at p. 919.)
In reaffirming in June 1996 the summary judgment initially
granted in August 1993 favoring defendants on Suidan's claim for
breach of the implied covenant, the federal district court
properly observed that "the terms of public employment in
California are governed by statute, so [Suidan] possessed no
express or implied contract of employment" and "without any type
of employment contract, there can be no breach of the implied
covenant of good faith and fair dealing." As a California public
employee, Suidan served by statute and not by contract. (Miller
v. State of California (1977) 18 Cal.3d 808, 812-813;18 Hill v.
18 In Miller v. State of California, supra, 18 Cal.3d 808, the
Supreme Court stated, "[I]t is well settled in California that
public employment is not held by contract but by statute and
that, insofar as the duration of such employment is concerned, no
employee has a vested contractual right to continue in employment
beyond the time or contrary to the terms and conditions fixed by
law." (Id. at p. 813.) Further, contrary to Suidan's
suggestion, no "vested contractual right [is] conferred on the
public employee because he occupies a civil service position
since it is equally well settled that '[t]he terms and conditions
of civil service employment are fixed by statute and not by
contract.' [Citations.] Indeed, '[t]he statutory provisions
controlling the terms and conditions of civil service employment
21
City of Long Beach (1995) 33 Cal.App.4th 1684, 1690.19) Thus, as
a matter of law, Suidan was not entitled to contract remedies
against defendants for termination of his employment. (Hill v.
City of Long Beach, supra, at p. 1690.) Accordingly, since in
the employment context a claim for breach of the implied covenant
is a contract-based cause of action (Foley v. Interactive Data
Corp. (1988) 47 Cal.3d 654, 663, 684), Suidan may not pursue a
remedy against defendants under the implied covenant theory.
(Hill v. City of Long Beach, supra, at p. 1690.)
Under the circumstances here, Suidan's remedies, if any,
against defendants were confined to those provided by statute.
(Hill v. City of Long Beach, supra, 33 Cal.App.4th at p. 1690.)
In that vein, in this lawsuit Suidan has abandoned the theory
alleged in his federal lawsuit that his employment relationship
was based upon an express or implied contract. Instead, Suidan
now contends an implied covenant of good faith and fair dealing
arose from statutory obligations substituting for contractual
provisions. Specifically, asserting he was entitled at a minimum
to insist that the Superior Court scrupulously adhere to legally-
cannot be circumvented by purported contracts in conflict
therewith.'" (Id. at p. 814.)
19 In Hill v. City of Long Beach, supra, 33 Cal.App.4th 1684,
the appellate court stated: "In California, the terms and
conditions of public employment are determined by law, not
contract. . . . Thus, as a matter of law, Hill was not entitled
to contract remedies against the City for his removal from the
position of managing director. His remedies, if any, were
confined to those provided by statute or ordinance." (Id. at
p. 1690, fn. omitted.)
22
imposed obligations in conducting its personnel actions, Suidan
contends section 69904 obligated the Superior Court to provide "a
modicum of reflective protection to its appointed employees" by
requiring a majority of the Superior Court's judges to review his
employment termination by Martone and thus prevent the arbitrary
and capricious deprivation of his livelihood, reputation and long
career by a single individual not belonging to the class of
persons statutorily authorized to make such personnel decision.
However, Suidan's alleged implied covenant claim must fail
as lacking any underlying contractual foundation. "'The
prerequisite for any action for breach of the implied covenant of
good faith and fair dealing is the existence of a contractual
relationship between the parties, since the covenant is an
implied term in the contract.' [Citation.] Without a
contractual underpinning, there is no independent claim for
breach of the implied covenant." (Fireman's Fund Ins. Co. v.
Maryland Casualty Co. (1994) 21 Cal.App.4th 1586, 1599.)
Further, as we shall explain with respect to the summary
judgment/summary adjudication favoring defendants on Suidan's
claim based on section 69904, Suidan's proffered interpretation
of section 69904 is incorrect and defendants did not violate the
statute in terminating his employment in March 1991. Moreover,
in any event, even if Suidan's statutory interpretation were
correct and defendants violated section 69904, Suidan's remedy,
if any, would be by mandate or declaratory relief. Nothing in
section 69904 suggests the availability of an implied covenant
remedy for a violation of that statute.
23
3
Conclusion
The portion of the judgment incorporating the order
sustaining defendants' demurrer to Suidan's claim for breach of
the implied covenant of good faith and fair dealing must be
affirmed.
B
Summary Judgment/Summary Adjudication on Suidan's
Claim under Section 69904
In this lawsuit Suidan alleged that the Superior Court's
actions in terminating his employment in March 1991 and
attempting to terminate his employment retroactively in March
1996 were wrongful as not complying with section 69904. The
court granted the Superior Court's motion for summary
judgment/summary adjudication on Suidan's claim for violation of
section 69904. In concluding the Superior Court properly
delegated to its executive officer Martone the authority to
terminate the employment of Superior Court employee Suidan, the
court stated, "[T]he authority granted to superior courts
pursuant to section 69898 to delegate to the court executive
officer any administrative powers and duties required to be
exercised by the court includes the authority to delegate the
power to remove superior court employees."
Asserting the court's interpretation of section 69904 was an
erroneous conclusion of law, Suidan contends the court should
have determined that section 69904 imposes a nondelegable duty on
the Superior Court judges to make employment termination
24
decisions. According to Suidan, the only permissible delegation
of authority by the Superior Court judges would be delegation of
the implementation of an employment termination decision once the
judges performed their obligation under section 69904 to exercise
their discretion in making such decision. Suidan characterizes
section 69904 as providing "the only thin thread that gives the
appointed employee protection from a solitary arbitrary removal
decision in the first instance" regardless of "subsequent review
options, none of which satisfies the section 69904 imperative
that a majority of the judges have exercised their discretion in
[m]aking the decision." Hence, Suidan concludes he had a "viable
statutory cause of action" since the Superior Court judges
assertedly did not exercise "their own administrative discretion
in the original termination decision" and the 1996 retroactive
termination was assertedly "an invalid exercise of judicial
authority." However, as we shall explain, under section 69898
the Superior Court judges properly delegated to the court's
executive officer Martone the authority under section 69904 to
remove Superior Court employee Suidan, and Martone acted within
such authority in March 1991 in terminating Suidan's
employment.20
20 As noted, Suidan acknowledges that if defendants'
"delegation theory is correct," the March 1996 vote by the judges
was "a legal nullity."
25
1
Undisputed Facts
For purposes of determining the propriety of the summary
judgment/summary adjudication favoring the Superior Court on
Suidan's claim for violation of section 69904, we state the facts
in the light most favorable to Suidan. (Stratton v. First Nat.
Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083.)
On May 11, 1988, the Superior Court adopted personnel rules
containing a provision delegating to the Superior Court's
executive officer authority over personnel matters including
removal of court employees.
On December 1, 1989, the Superior Court executive officer
(Martone) wrote Suidan and offered him a position with the
Superior Court. Martone's letter stated that Suidan would serve
at the executive officer's pleasure, Suidan's position would be
governed by the Superior Court's personnel rules, and Suidan
would no longer be subject to civil service rules. Martone and
his management support staff met personally with County Clerk
personnel before the transfer of Suidan and 295 other employees
to the Superior Court and answered questions about post-transfer
employment conditions. Suidan attended one such meeting.
Martone personally participated in drafting documents that
employees were required to sign in order to transfer.
On March 14, 1991, Martone terminated Suidan's employment
without consulting beforehand with any Superior Court judge about
such termination. Martone based his authority to terminate
Suidan's employment on the Superior Court's personnel rules.
26
Suidan sought review of Martone's decision by the Superior
Court's personnel committee. The personnel committee affirmed
the termination decision as within Martone's discretion.
In 1993 Suidan filed a first amended complaint in the
federal district court involving the circumstances of his
employment termination. Suidan appealed to the federal appellate
court the summary judgment granted by the federal district court.
In November 1995 the federal appellate court remanded to the
federal district court the issue whether the Superior Court
judges had exercised their discretion under section 69904 to
terminate Suidan's employment.
In March 1996, after remand of Suidan's federal lawsuit to
the federal district court, the Superior Court judges voted to
terminate Suidan effective retroactively to March 14, 1991.
2
Analysis
We examine the facts presented on the Superior Court's
summary judgment/summary adjudication motion and independently
determine their effect as a matter of law. (Stratton v. First
Nat. Life Ins. Co., supra, 210 Cal.App.3d at p. 1083.) "We also
conduct independent review of the trial court's determination of
questions of law. We are not bound by the trial court's stated
reasons, if any, supporting its ruling; we review the ruling, not
its rationale." (Ibid.; see also Environmental Protection
Information Center v. Department of Forestry & Fire Protection
(1996) 43 Cal.App.4th 1011, 1015-1016.)
27
Section 69904, subdivision (b) provides that all personnel
appointed by the judges "may at any time be removed by the
majority of the judges in their discretion." Section 69898,
subdivision (a) provides that any superior court "may delegate"
to its appointed executive officer "any administrative powers and
duties required to be exercised by the court." California Rules
of Court, rule 207(1) states that the court executive officer
shall "administer a court approved personnel plan" providing for,
among other things, "removal of employees of the court." San
Diego Superior Court rule 4.3 provided that a court employee in
Suidan's position "may be removed by the Executive Officer."
In sum, section 69898 expressly authorized the Superior
Court to delegate to its executive officer any administrative
powers and duties required to be exercised by the court. One
such administrative power was set forth in section 69904, namely,
the power to remove personnel appointed by the judges. Thus,
under section 69898, the Superior Court could properly delegate
to its executive officer its section 69904 power of removal.
Further, in accord with California Rules of Court, rule 207, the
Superior Court by its personnel rules in fact delegated such
removal power to its executive officer.
Our construction of section 69898 is consistent with case
law construing such statute as permitting superior court judges
to delegate to the court's executive officer various
responsibilities for court personnel. (American Federation of
State etc. Employees v. County of San Diego (1992) 11 Cal.App.4th
506, 516; Sacramento County Employees Organization v. County of
28
Sacramento (1988) 201 Cal.App.3d 845, 852; Service Employees
Internat. Union v. Superior Court (1984) 161 Cal.App.3d 1005,
1007-1008.21) Citing case law including Service Employees
Internat. Union v. Superior Court, supra, the appellate court
stated in Sacramento County Employees Organization v. County of
Sacramento, supra: "The lesson to be learned from these cases is
that where courtroom personnel are subject to control by the
county clerk, they may be found employees of the county.
[Citation.] However, where courtroom personnel are under the
exclusive control of the court (through the executive officer or
administrator of the court), they are employees of the court."
(Id. at p. 852, italics added.) Similarly, following that line
21 In Service Employees Internat. Union v. Superior Court,
supra, 161 Cal.App.3d 1005, the appellate court faced the
question whether courtroom clerks were county employees under a
current memorandum of understanding between the county and a
union. (Id. at pp. 1007-1008.) The superior court in that
county had adopted a local rule (Santa Clara County Superior
Court rule 25) transferring from the county clerk to the superior
court's executive officer various administrative duties and
responsibilities with respect to the employment of certain
specified personnel. (Service Employees Internat. Union v.
Superior Court, supra, at pp. 1007-1008.) In concluding that
courtroom clerks were not county employees subject to the current
memorandum of understanding, the appellate court stated: "The
current memorandum of understanding is applicable only to county
employees, but it does not define the term. Under general
principles of law, several factors -- power of appointment, right
to control, power to discharge, payment of salary, nature of
services, civil service status -- will enter into a determination
whether a given person employed in a position related to [the
superior court's] functions is a court employee or a county
employee. [Citation.] Local Rule 25 represents a proper
exercise of authority delegated to superior courts by virtue of
Government Code section 69898 . . . ." (Id. at p. 1008.)
29
of authority, in American Federation of State etc. Employees v.
County of San Diego, supra, we stated that "court personnel under
the exclusive control of the court (through the executive officer
or administrator of the court; see § 69898[22]) are employees of
the court . . . ." (Id. at p. 516, italics added.)
3
Conclusion
On this record the summary judgment/summary adjudication
favoring the Superior Court on Suidan's claim for violation of
section 69904 must be affirmed.23
C
Denial of Leave to File Amended Complaint to
Allege Fraud Claim Against Martone
On the alternative grounds of res judicata/collateral
estoppel and the statute of limitations, the court in this
lawsuit denied Suidan's motion for leave to file an amended
complaint to allege with specificity a fraud claim against
Martone. Asserting his motion to amend the complaint was timely
22 In a footnote at this point, we noted that the Superior
Court's personnel rules "provide for a court executive officer
who oversees Superior Court personnel under the direction of the
presiding judge. The personnel rules include detailed
regulations on a wide range of matters dealing with Superior
Court employees."
23 Since our conclusion is based solely upon statutory
interpretation, we need not reach Suidan's assertions of
evidentiary error with respect to portions of Martone's
declaration submitted in support of defendants' motion for
summary judgment/summary adjudication.
30
and without prejudice to defendants, Suidan contends the court
erred in denying such request. We disagree.
1
Procedural Background
In September 1992 Suidan filed a federal lawsuit against
defendants involving the circumstances of his employment
termination.
In March 1993 in his federal lawsuit, Suidan filed a first
amended complaint asserting various theories based upon
defendants' assertedly wrongful termination of his employment.
Such first amended complaint did not specifically allege a claim
for fraud against Martone or any other defendant.
In June 1996 the federal district court granted defendants'
renewed motion for summary judgment on Suidan's claims for
deprivation of civil rights, breach of contract, and breach of
the implied covenant of good faith and fair dealing. The federal
district court dismissed Suidan's remaining claim under section
69904 for lack of federal jurisdiction.
In October 1996 Suidan filed this lawsuit. As captioned,
Suidan's original complaint in this lawsuit sought to allege a
cause of action for fraud against the County and the Superior
Court. However, although the caption of Suidan's fraud claim did
not mention Martone, such fraud claim incorporated by reference
earlier paragraphs of the complaint alleging that Martone was a
defendant; Martone was the Superior Court's executive officer;
each defendant was the agent and employee of each other
defendant; on February 5, 1991, acting as the Superior Court's
31
executive officer, Martone wrongfully placed Suidan on
administrative leave; and on March 14, 1991, acting as the
Superior Court's executive officer, Martone signed an order
wrongfully removing Suidan from his employment. Suidan's fraud
claim further alleged: While employed continuously for more than
17 years by the County and then the Superior Court, Suidan
received "above average" performance reviews, promotions and
merit raises; on numerous occasions, Suidan was falsely assured
he would not be terminated arbitrarily, without good cause or
without compliance with the policies, procedures and laws
applicable to his employment; defendants concealed from Suidan
that Martone would be given the power to terminate Suidan's
employment; defendants made those false representations and
concealed such material facts to induce Suidan to continue his
employment with the County and the Superior Court; and Suidan
justifiably relied upon defendants' actions and did not become
aware of the falsity of the statements or the material omissions
until removal from his position and termination of his
employment.
In February 1997 the court in this lawsuit sustained without
leave to amend the demurrers of the County and the Superior Court
to Suidan's claim for fraud. However, citing the doctrine of
equitable tolling, the court overruled Martone's demurrer to
Suidan's claim for fraud.
In March 1997 defendants answered Suidan's claim in this
lawsuit for violation of section 69904. However, defendants'
32
answer expressly asserted that no response was required to
Suidan's fraud claim given the court's ruling on demurrer.24
In April 1997 Suidan filed a case management questionnaire
in this lawsuit indicating the pleadings were in final form.
In May 1997 in this lawsuit Martone sought summary
judgment/summary adjudication -- or effectively judgment on the
pleadings (Hansra v. Superior Court (1992) 7 Cal.App.4th 630,
639) -- on Suidan's fraud claim on the theory that Martone was
not a party to such fraud claim in Suidan's original complaint.
Martone asserted, "In ruling on demurrer, the court mistakenly
assumed that a fraud cause of action was pled against the
individual defendant Martone and overruled the demurrer as
against Martone only. However, the complaint fails to plead any
facts against Martone individually." Opposing Martone's motion,
Suidan filed his attorney's declaration asserting Martone had
been "inadvertently omitted" from the caption of Suidan's claim
for fraud. The court declined to rule on the issue until Suidan
filed a motion for leave to amend his original complaint to add
Martone as a defendant on the fraud claim.
24 Suidan contends that after the court in this lawsuit
overruled Martone's demurrer to the original complaint's fraud
claim, Suidan justifiably believed such claim was legally
sufficient. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-
566.) However, if Suidan believed his original complaint
properly stated a claim against Martone for fraud, Suidan could
have sought entry of Martone's default on the fraud claim in
light of the lack of a responsive pleading to such claim. The
record contains no suggestion Suidan attempted to default
Martone.
33
Accordingly, in June 1997 Suidan filed a motion in this
lawsuit for leave to file an amended complaint alleging with
specificity a fraud claim against Martone. Suidan's proposed
fraud claim repleaded the bulk of the facts alleged in his
original complaint and alleged further: Before Suidan's position
was transferred from the County Clerk to the Superior Court,
Martone met with County Clerk personnel and, to solicit and
induce his acceptance of employment with the Superior Court,
represented to Suidan that Suidan would continue performing his
same job, Suidan would be dealt with fairly, Suidan would have
his performance evaluated, and Suidan would not be fired unless
he did something wrong while working for the Superior Court;
however, Martone intended to change Suidan's duties and
responsibilities and in fact did so after the transfer; and when
Suidan's employment was terminated in March 1991, Martone knew a
majority of the Superior Court judges had not exercised their
discretion with respect to the decision to remove Suidan.
Suidan's proposed fraud claim also alleged Martone and/or his
agents falsely represented to Suidan that upon transfer of his
employment to the Superior Court, Suidan would retain the rights
afforded to classified employees; Suidan would not be terminated
arbitrarily, without good cause or without following the
policies, procedures, and laws applicable to his employment;
Suidan's employment rights would not be adversely affected by the
transfer; Suidan would be fired only for good cause; Suidan's
employment would be protected unless he did something wrong in
the course of his Superior Court employment; and Suidan was being
34
fired for incompetence, because of the alleged embezzlement and
criminal charges against him. Suidan's proposed fraud claim
further alleged Martone falsely represented he would conduct his
own investigation into the criminal charges against Suidan.
Additionally, Suidan's proposed fraud claim alleged Martone
and/or his agents concealed from Suidan the following material
facts: Martone would unilaterally terminate Suidan's employment;
Martone intended to remove Suidan as accounting division manager
as soon as he was transferred to the Superior Court; after the
transfer, Suidan would not have the same rights afforded
classified employees; Suidan's employment rights would be
adversely affected by his change to Superior Court supervision;
Suidan could be terminated without good cause; Martone was
dissatisfied with Suidan's work before the transfer; before
Suidan's transfer, Martone intended to take action after the
transfer based on his knowledge of the 1989 audit investigation;
Martone decided that Suidan would not transfer in the same
function as his County Clerk position; Martone met with the audit
staff in December 1989 and January 1990, knew of the criminal
investigation, and harbored doubts about Suidan's capability to
manage the accounting division; and Martone had selected a
successor for Suidan's function at the time of or immediately
after the January 1990 transfer. Suidan's proposed fraud claim
also alleged Martone "concocted a scheme" to terminate Suidan's
employment retroactively and sent a misleading and incomplete
memorandum to the Superior Court judges with respect to the March
1996 attempt at retroactive employment termination. Finally,
35
Suidan's proposed fraud claim alleged that he did not become
aware of the falsity of the representations and the material
omissions until after removal from his position and termination
of his employment.
In August 1997 the court in this lawsuit denied Suidan's
motion for leave to file an amended complaint on the ground that
under the doctrine of res judicata/collateral estoppel Suidan's
proposed fraud claim against Martone was barred by the federal
court judgment against Suidan on his claims based on the "primary
right" not to be terminated arbitrarily or without good cause.
Alternatively, the court denied Suidan's motion on the ground his
fraud claim against Martone was time-barred.
2
Analysis
"In its primary aspect, res judicata operates as a bar to
the maintenance of a second suit between the same parties or
parties in privity with them on the same cause of action."
(People v. Sims (1982) 32 Cal.3d 468, 477, fn. 6.) "Collateral
estoppel is a 'secondary aspect' of the res judicata doctrine."
(Ibid.) "Collateral estoppel precludes a party to an action from
relitigating in a second proceeding matters litigated and
determined in a prior proceeding." (Id. at p. 477.)
"A valid final judgment on the merits in favor of a
defendant serves as a complete bar to further litigation on the
same cause of action." (Slater v. Blackwood (1975) 15 Cal.3d
791, 795.) "California has consistently applied the 'primary
rights' theory under which the invasion of one primary right
36
gives rise to a single cause of action." (Ibid.) "However, the
'cause of action' is based upon the harm suffered, as opposed to
the particular theory asserted by the litigant. [Citation.]
Even where there are multiple legal theories upon which recovery
might be predicated, one injury gives rise to only one claim for
relief. 'Hence a judgment for the defendant is a bar to a
subsequent action by the plaintiff based on the same injury to
the same right, even though he presents a different legal ground
for relief.'" (Ibid., italics in original.)
Thus, whether Suidan's fraud claim in this lawsuit
represented the same "cause of action" litigated in his federal
lawsuit depends upon whether the same "primary right" was at
issue in both lawsuits. In declining to grant Suidan leave to
file an amended complaint in this lawsuit, the court concluded:
"The 'primary right' at issue in Suidan's case is the right to
employment, specifically to enforce certain representations made
to him about his future employment. Alternatively stated, Suidan
is asserting the right to seek compensation for the breach of
those representations. That is precisely the same primary right
(hence the same cause of action) adjudicated in Suidan's lengthy
federal lawsuit."
As noted, res judicata "precludes parties or their privies
from relitigating a cause of action which has been finally
determined in a prior judgment." (Duffy v. City of Long Beach
(1988) 201 Cal.App.3d 1352, 1357.) "To prevent piecemeal
litigation, the doctrine of res judicata also applies to bar a
second suit arising out of the same factual situation, involving
37
matters which were relevant and within the scope of the first
action, which thus could have been raised in the first suit."
(Id. at pp. 1357-1358, italics in original.) Since Martone's
alleged fraudulent acts occurred before Suidan's federal action
was filed in September 1992, Suidan's proposed fraud claim in
this lawsuit was barred by res judicata as based on matters which
were raised or could have been raised in his federal court
lawsuit. (Ibid.) Stated otherwise, Suidan's federal lawsuit and
his proposed fraud claim in this lawsuit affected the "same
primary right," to wit, the right to be free from wrongful
termination of his employment. (See Slater v. Blackwood, supra,
15 Cal.3d at p. 795.) Indeed, both lawsuits sought relief based
upon various employment-related promises and representations
allegedly made by Martone. Thus, once the federal district court
granted defendants' renewed summary judgment on all of Suidan's
claims other than the alleged violation of section 69904 and then
dismissed his federal action, Suidan's proposed fraud claim
arising from the same factual situation was barred under
principles of res judicata/collateral estoppel. (Martin v.
Martin, supra, 2 Cal.3d at p. 761; Duffy v. City of Long Beach,
supra, at pp. 1357-1358.)25
25 Although Suidan asserts his proposed fraud claim finds
support in Martone's alleged involvement in drafting certain
representations presented to the Superior Court judges in 1996 as
part of the attempt to terminate Suidan's employment
retroactively, we need not reach the issue of the retroactive
employment termination since, as acknowledged by Suidan, the
March 1996 vote by the judges was a "legal nullity" once it was
correctly determined that the March 1991 termination of Suidan's
38
Suidan contends the court in this lawsuit should have
granted him leave to file his proposed amended complaint because
such pleading assertedly raised complex issues involving
Martone's allegedly fraudulent representations that were made
before Suidan accepted transfer of his employment from the County
Clerk to the Superior Court, were intended to induce Suidan to
accept such transfer, and upon which Suidan relied to his
detriment in accepting the transfer. However, Suidan
acknowledges that his federal lawsuit, filed in September 1992,
gave Martone "full notice" of "the factual basis" for Suidan's
allegations of Martone's fraudulent concealment and fraudulent
inducement. In the same vein, Suidan also acknowledges that
Martone has been "on notice since 1992" of Suidan's contentions
"he was misled by pre-transfer representations regarding his
service at the pleasure of the Superior Court judges" made by
Martone. Further, Suidan acknowledges his federal action and
this lawsuit involved "the same parties and overlapping facts."
Suidan also acknowledges the details of his proposed fraud claim
against Martone were "culled directly from discovery" in his
federal action.26 Finally, Suidan acknowledges that although his
employment was within Martone's statutory authority properly
delegated by the Superior Court judges.
26 Similarly, in opposing defendants' motion for summary
judgment/summary adjudication in this lawsuit, Suidan submitted
his counsel's declaration asserting "the federal action arose out
of the same facts and circumstances and involved the same parties
as the instant state court action so that testimony and verified
discovery from the federal action provides evidence equally
39
federal action presented "no separate fraud claim," the
"fraudulent conduct" of Martone "permeates the underlying facts."
Thus, as Suidan has effectively conceded, the record indicates
both Suidan's federal action and this lawsuit arose "'out of the
same transactional nucleus of facts.'" (Coca-Cola Bottling Co.
v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1379-1380.)
Where, as here, the first litigation afforded an opportunity for
a fair and full hearing on the asserted claim, fairness dictates
that the controversy now be put to rest. (Weikel v. TCW Realty
Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245.)
3
Conclusion
On this record the court in this lawsuit correctly concluded
Suidan's proposed fraud claim against Martone was barred under
principles of res judicata/collateral estoppel. Since Suidan
made no showing he could have cured the defect in his proposed
pleading, the court properly denied Suidan's motion for leave to
file an amended complaint. Thus, the portion of the judgment
favoring defendants on Suidan's claim for fraud must be
affirmed.27
appropriate for consideration in connection with the instant
motion . . . ."
27 In light of our conclusion that res judicata/collateral
estoppel barred Suidan's proposed fraud claim, we need not reach
the issue whether such claim was also time barred.
40
V
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
___________________________
KREMER, P.J.
WE CONCUR:
___________________________
WORK, J.
___________________________
MCDONALD, J.
41
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