Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV138539
McAdams, J.
Following his temporary demotion, appellant Sak Onkvisit brought this and other actions against his employer, respondent Board of Trustees of California State University. In the action giving rise to this appeal, the trial court sustained respondent’s demurrer without leave to amend. For reasons explained below, we shall affirm the judgment of dismissal.
BACKGROUND
This is one of three superior court actions brought by appellant in Santa Clara County arising out of his demotion by respondent.
Other Proceedings
In April 2008, appellant filed a complaint for damages, naming respondent and a number of respondent’s employees as defendants (CV111076). Apparently, that action is still pending. As reflected in an order of the trial court, filed in August 2009 following a hearing on demurrers to the third amended complaint, there are two surviving causes of action – one for violation of the California Whistleblower Act and one for fraud.
In June 2008, appellant filed a petition for writ of administrative mandamus against respondent (CV116327). The petition states that it was brought pursuant to Code of Civil Procedure section 1094.5. The petition challenged a decision of the State Personnel Board, which upheld the discipline imposed on appellant by respondent. Following a hearing in February 2009, the trial court denied the writ petition. Judgment was entered in March 2009. Appellant appealed that judgment in this court (H034449).
Unspecified statutory references are to the Code of Civil Procedure.
Our opinion in that companion appeal is being filed concurrently with our opinion in this case.
Underlying Facts
The underlying facts and administrative history of this dispute are thoroughly recounted in our opinion in the companion appeal (H034449). It is unnecessary to repeat that information here.
Current Proceeding
In March 2009, appellant filed this mandate action against respondent (CV138539). Though titled petition for ordinary writ, the body of the petition states that is brought under sections “1085 and 1094.5.” In his prayer for relief, appellant seeks “issuance of an ordinary writ of mandate against respondent to grant a trial de novo to determine if respondent has cause to discipline petitioner.”
In May 2009, respondent demurred to the petition. (§§ 430.10, 1089.) In connection with its demurrer, respondent requested judicial notice of specified portions of the superior court’s file in CV116327, appellant’s earlier administrative mandamus petition. (§ 430.70.)
In June 2009, after briefing by both parties, the court conducted a hearing on the demurrer. As reflected in its formal order after hearing, the court first granted respondent’s request for judicial notice “as to the existence of the documents but not to the hearsay statements within the documents.” The court then sustained respondent’s demurrer, without leave to amend, on the stated ground that “the petition is barred by the doctrines of res judicata and collateral estoppel.”
In August 2009, a judgment of dismissal was filed.
This timely appeal ensued.
Contentions
Though offered under three separate headings, appellant effectively raises two appellate challenges, both disputed by respondent. First, appellant asserts that California Supreme Court authority supports his bid for trial de novo here, given the untimeliness of the State Personnel Board’s decision. In a related argument, appellant contends that the trial court erred by not applying that authority here, thus offending the doctrine of stare decisis. Additionally, appellant maintains, the trial court misinterpreted the law by relying on the doctrine of res judicata as grounds for sustaining the demurrer. Appellant concludes his opening brief with a request that we “compel CSU to revoke the disciplinary action.”
DISCUSSION
To establish the proper framework for our discussion, we begin by setting for the legal principles that guide our analysis.
I. Demurrers
A. General Principles
“A general demurrer searches the complaint for all defects going to the existence of a cause of action and places at issue the legal merits of the action on assumed facts.” (Carman v. Alvord (1982) 31 Cal.3d 318, 324.)
Courts “assume the truth of the complaint’s properly pleaded or implied factual allegations.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; accord, Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.) The same rule applies in mandamus proceedings: the court “assumes the truth of the petition’s allegations.” (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1115.) “The question is not whether the petitioner might ultimately be able to prove any of the facts alleged, but whether if the facts pleaded are true, the plaintiff is entitled to relief.” (Coelho v. State Personnel Bd. (1989) 209 Cal.App.3d 968, 971.) While properly pleaded factual allegations are assumed to be true, that assumption does not extend to contentions, deductions, or conclusions of law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
In addition to the allegations of the pleading, we also “consider judicially noticed matters.” (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081; Campbell v. Regents of University of California, supra, 35 Cal.4th at p. 320.) We “may disregard allegations that are contrary to the law or to a fact of which judicial notice may be taken.” (Duggal v. G.E. Capital Communications Services, Inc. (2000) 81 Cal.App.4th 81, 86; Casella v. City of Morgan Hill (1991) 230 Cal.App.3d 43, 48.)
B. Grounds for Demurrer
1. Pendency of Action
One statutory ground for demurrer is the existence of “another action pending between the same parties on the same cause of action.” (§ 430.10, subd. (c).) “The pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.” (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.) “The rule that the pendency of one action abates another is based in part upon the practical supposition that the first suit is effective and affords an ample remedy to the party and that the second is unnecessary and vexatious, and in part upon the legal principle that the law abhors a multiplicity of actions.” (National Automobile Ins. Co. v. Winter (1943) 58 Cal.App.2d 11, 16.)
“A demurrer raising this objection to a second action between the same parties ‘is strictly limited so that... the defendant must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case.’ ” (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 856.) In assessing whether the same cause of action is at issue, “the analysis focuses on identifying a primary right of the plaintiff and the defendant’s breach of a corresponding primary duty.” (Ibid.)
“A demurrer on the ground of another action pending will not be sustained if the former action is no longer pending.” (Williams v. State of California (1976) 62 Cal.App.3d 960, 965.) “An action is deemed pending only from the time of its commencement until its final determination on appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” (Ibid.; Pitts v. City of Sacramento, supra, 138 Cal.App.4th at p. 858.) “After the judgment has become final, demurrer on the ground of another action pending is untenable, and the objection must be based on a plea in bar of res judicata.” (National Auto. Ins. Co. v. Winter, supra, 58 Cal.App.2d at p. 16.)
2. Res Judicata
There is a longstanding “general rule that the defense of res judicata may be raised by demurrer where the facts which give rise to it appear in the complaint.” (Willson v. Security-First Nat. Bk. of Los Angeles (1943) 21 Cal.2d 705, 710.)
The doctrine of res judicata, which is also called claim preclusion, prevents the relitigation of any identical cause of action “that has been finally determined by a court of competent jurisdiction.” (Levy v. Cohen (1977) 19 Cal.3d 165, 171; accord, Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 620; cf. Mola Development Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405, 407 [voluntary dismissal of administrative mandamus petition “allowed the administrative decision to achieve finality and issue preclusive effect”].) The related doctrine of collateral estoppel, which is also called issue preclusion, similarly prevents the relitigation of specific issues. (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910; Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481-483.)
C. Appellate Review
On appeal from a judgment of dismissal after a demurrer has been sustained without leave to amend, the appellant has the burden of proving error. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)
“Because the trial court’s determination” to grant the demurrer “is made as a matter of law, we review the ruling de novo.” (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1423.) “The trial court’s ruling should be upheld if it can be sustained on any of the grounds upon which the demurrer is based.” (Williams v. State of California, supra, 62 Cal.App.3d at p. 966; Duggal v. G.E. Capital Communications Services, Inc., supra, 81 Cal.App.4th at p. 86.)
The trial court’s decision denying leave to amend is tested for an abuse of discretion. “As a general rule, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “Nevertheless, where the nature of the plaintiff’s claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result.” (Ibid.; see also, ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 837.)
In analyzing the existence of liability under the governing substantive law, “we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.” (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)
II. Analysis
Our analysis of the demurrer ruling proceeds in two steps. First, we independently review the sufficiency of appellant’s petition, ultimately concluding that it is barred by the pendency of his other mandamus action. Next, we consider whether leave to amend should have been granted; we find that the defects in appellant’s pleading cannot be rectified under the governing substantive law.
A. The court did not err in sustaining the demurrer.
Appellant’s first appellate challenge depends on a 1995 California Supreme Court decision that addresses the effect of an untimely decision by the State Personnel Board, California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133. In appellant’s view, this decision confirms his right to trial de novo in this action, and the trial court erred in finding otherwise. Appellant’s second ground for appeal rests on his claim that the trial court misinterpreted the law by confusing a final judgment and a pending action. We consider each ground in turn.
Appellant also cites State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512. For reasons explained in the companion appeal, that case is inapposite.
1. Effect of the California Correctional Peace Officers case
Appellant’s argument on this point begins with the assertion that the State Personnel Board’s decision in his administrative appeal was untimely under applicable statutes, which generally require a decision within 90 days of submission. (Gov. Code, §§ 18671.1, 19583.) As we explained in the companion appeal, that assertion has merit. But as we also explained there, the fact that the decision was late provides no basis for setting it aside. And as we now explain here, the untimeliness of the Board’s decision does not operate to give appellant a second opportunity to challenge it.
The California Supreme Court held that “the requirement that a decision be rendered within the statutory time is directory, not mandatory.” (California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1138.) Even if its decision is untimely, the State Personnel Board “does not lose jurisdiction over the appeal. It may continue to process the appeal by investigation, hearing, and decision.” (Id. at p. 1156.) On the other hand, an employee awaiting a late decision “who has not waived the time limit may seek a writ of mandate against the Board to compel the Board to decide the appeal by a date certain. Alternatively, because the statute also provides that the employee is deemed to have exhausted all available administrative remedies, he or she may seek a writ of mandate against the appointing authority to set aside the adverse action.” (Id. at p. 1138.) But the petitioner must act “promptly when the time limit has been exceeded and the employee has no reason to anticipate that decision of the appeal is imminent. Failure to file the petition promptly is an implicit waiver of the statutory time limit. [¶] The Legislature did not intend to permit the employee to await a delayed Board decision and then seek traditional mandate rather than review by administrative mandamus if the result of the administrative appeal is unfavorable.” (Id. at p. 1156, fn. 6.)
Nothing in the California Correctional Peace Officers decision supports appellant’s claim that he may challenge the tardy administrative decision by both administrative mandate and ordinary mandate. To the contrary, the decision expresses the opposite view. (California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1156, fn. 6.) Under this authority, the opportunity to initiate an ordinary mandate proceeding for “trial de novo” ceases – at the latest – once the agency renders its tardy decision.
The trial court properly interpreted and applied this authority. We therefore reject appellant’s bid for reversal on this ground.
2. Basis for the trial court’s ruling
Appellant asserts that the trial judge “erred when he ruled that appellant’s petition was barred by the doctrines of res judicata and collateral estoppel.” Because there has been no final judgment in his administrative mandamus proceeding, appellant observes, his “petition is not barred by the doctrines of collateral estoppel and res judicata. A judgment is final only when the appeal has been concluded or the time for appeal has passed.”
Appellant correctly states the law, which holds (1) that preclusion applies only to final judgments and (2) that finality occurs only after available appeals are exhausted or time-barred. (Pitts v. City of Sacramento, supra, 138 Cal.App.4th at p. 858.) But those principles of law do not assist appellant, because another viable ground for demurrer was proffered here. (Williams v. State of California, supra, 62 Cal.App.3d at p. 966; Duggal v. G.E. Capital Communications Services, Inc., supra, 81 Cal.App.4th at p. 86.)
In this case, respondent cited four grounds in its notice of demurrer: collateral estoppel, res judicata, pendency of another action, and failure to state a cause of action. Respondent’s memorandum of points and authorities in support of the demurrer (1) pointed out the trial court’s earlier denial of appellant’s administrative mandamus petition, (2) noted the filing of the “essentially identical petition (but this time seeking ordinary mandamus review)” and (3) argued that “the instant Petition is subject to demurrer either pursuant to Code of Civil Procedure §430.10 (c) or, if the Judgment is deemed final by the time this demurrer is heard, pursuant to the doctrines of res judicata and collateral estoppel.” At the hearing on the demurrer, respondent’s counsel clarified “that since the motion for new trial on the administrative writ petition was only denied last week, technically we do not have a final judgment. So the appropriate statute for the demurrer would be CCP 430.10(c), another action is pending. Identical.”
In its formal order sustaining the demurrer, the trial court concluded that “the petition is barred by the doctrines of res judicata and collateral estoppel.” The court found that “the first petition for writ of administrative mandamus incorporates the same parties and issues as the second petition for ordinary mandate before the court.” The court also determined that “there was a final judgment on the merits of the first petition” filed in March 2009, in superior court. The court did not apply section 430.10, subdivision (c), which permits a demurrer when another action is pending, explicitly overruling the demurrer as based on that ground.
As noted above, the sustention of a demurrer will be affirmed if it is “correct on any applicable theory.” (Duggal v. G.E. Capital Communications Services, Inc., supra, 81 Cal.App.4th at p. 86.) The ruling thus will be upheld “if it can be sustained on any of the grounds upon which the demurrer is based.” (Williams v. State of California, supra, 62 Cal.App.3d at p. 966.)
In this case, the trial court erred in not applying section 430.10, subdivision (c); another identical action was still pending between the parties, as the appeal had not yet run its course. Nevertheless, the court’s ruling may be sustained on that statutory ground, which respondent raised and argued below.
Appellant’s belated attempt to overcome this dispositive point is not persuasive. For one thing, appellant discusses this issue for the first time in his reply brief. (See Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 270 [argument first offered in reply brief was “too little, too late”].) For another thing, appellant’s attempt to distinguish his two mandamus petitions is without merit. Appellant characterizes his earlier administrative writ petition as an action “related to CSU’s breach of contract and breach of the implied covenant of good faith and fair dealing.” In offering that characterization, appellant apparently confuses his first writ petition (CV116327) with his earlier civil action for damages (CV11706). And appellant asserts no other differences between the two writ petitions.
For all intents and purposes, appellant’s two writ petitions seek the same relief against the same party based on the same primary right. (Pitts v. City of Sacramento, supra, 138 Cal.App.4th at p. 856.) Since the first petition afforded appellant “an ample remedy” for review of the administrative decision, “the second is unnecessary and vexatious, ” and appellant is not entitled to maintain it. (National Automobile Ins. Co. v. Winter, supra, 58 Cal.App.2d at p. 16.)
B. The court did not abuse its discretion in denying leave to amend.
“Whether to grant leave to amend a complaint is a matter within the discretion of the trial court.” (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) Denial of leave to amend is reviewable “even if the plaintiff does not claim on appeal that the trial court abused its discretion in sustaining a demurrer without leave to amend.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 971.) But the appellant nevertheless bears the burden of demonstrating a reasonable possibility that the pleading’s defects can be cured by amendment. (Reynolds v. Bement, at p. 1091.) Appellant has not satisfied that burden here.
Having already proceeded with his first mandamus action, appellant cannot amend his current mandamus petition to state any claim to a de novo hearing. (California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1156, fn. 6.) In other words, under substantive law, appellant has no right to maintain this action, thus there is no basis for permitting an amendment. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 68 Cal.App.4th at p. 459.)
For these reasons, we find no abuse of discretion in the trial court’s decision to sustain the demurrer without leave to amend.
DISPOSITION
The judgment of dismissal is affirmed.
WE CONCUR: Premo, Acting P.J., Elia, J.