EC061867

Demurrer

The Plaintiff alleges he received chiropractic care for sciatica nerve pain that had afflicted him for years. The Plaintiff suffered personal injuries because the Defendant’s treatment was negligent and aggravated his existing nerve pain. The Complaint alleges causes of action for:
1) Fraud
2) Negligent Misrepresentation
3) Negligence and Professional Negligence
4) Infliction of Emotional Distress

This hearing concerns the Defendant’s demurrer to each cause of action in the Complaint.

The Defendant argues that the Plaintiff’s Complaint is barred by the doctrine of res judicata because the Plaintiff has already litigated these claims in a small claims action against the Defendant.
The doctrine of res judicata has two aspects. The first is claim preclusion, which bars the re-litigation of the same cause of action in a second suit between the same parties. Mycogen Corp. v. Monsanto Co. (2002) 28 Cal. 4th 888, 896. 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. Id. at 897. The claim preclusion aspect of the doctrine of res judicata applies to small claims judgments. Pitzen v. Superior Court (2004) 120 Cal. App. 4th 1374, 1381.

The second aspect of res judicata is collateral estoppel, which bars the litigation of causes of action that arose from the same transaction and that could have been raised and litigated in the first suit between the parties. Sanderson v. Niemann (1941) 17 Cal. 2d 563, 573. This aspect of res judicata does not apply to a small claims judgment. Id. Instead, a small claims judgment only bars re-litigation of the same cause of action.

The Court based its holding on a consideration of the nature of a small claim court. The Court found that the small claims court functions informally and expeditiously. The chief characteristics of its proceedings are that there are no attorneys, no pleadings and no legal rules of evidence; there are no juries, and no formal findings are made on the issues presented. At the hearings the presentation of evidence may be sharply curtailed, and the proceedings are often terminated in a short space of time. The awards, although made in accordance with substantive law, are often based on the application of common sense; and the spirit of compromise and conciliation attends the proceedings. Accordingly, the Court found that a small claims judgment does not bar litigation on different causes of action from that raised in the small claims case.

The principle 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’l Bank (1943) 21 Cal. 2d 705, 710-711. In addition, the Court may take judicial notice of another proceeding for the purpose of determining whether res judicata bars to the pending suit. Id. The doctrine applies when the following is shown:

1) the issue decided in the prior adjudication is identical with the one presented in the action in question;
2) there was a final judgment on the merits; and
3) the party against whom the plea is asserted is a party or in privity with a party to the prior adjudication.
Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal. App. 3d 622, 628.

The pending case involves the Plaintiff’s claim that he suffered personal injuries and damages because the Defendant provided him with negligent chiropractic care.

The Defendants request that the Court take judicial notice of Court records in 13G00453, which was the Plaintiff’s case against the Defendant in Small Claims Court. Under Evidence Code section 452(d)(1), the Court may take judicial notice of the records of any California Court.

Exhibit A to the request for judicial notice contains the Plaintiff’s claim. The Plaintiff alleged in paragraph 3 that the Defendant owed him $10,000 because the Plaintiff had paid for sciatica treatment that the Defendant gave him and that caused injury to his right shoulder. The Plaintiff alleged that the injury occurred during February 7, 2012 to June 26, 2012 and that he paid $6,800 for the treatment and had lost $3,200 for time lost at work, for costs to obtain treatment from other physicians, and for pain endured due to the injury. Exhibit B contains the judgment in favor of the Defendant that indicated that the Plaintiff had failed to meet his burden of proof to establish that the Defendant aggravated his pre-existing condition. The judgment is dated August 6, 2013.

The claim in the Small Claims Court was a professional negligence claim in that it concerned the Plaintiff’s claim that he suffered an injury due to the Defendant’s negligent chiropractic treatment.

In the pending case, the Plaintiff commenced the action by filing the Complaint on January 2, 2014. The Plaintiff alleges in paragraph 8 that on February 27, 2012 he sought treatment from the Defendant for sciatica nerve pain and that he paid $6,658 for the treatment. The Plaintiff alleges in paragraph 10 that the treatment caused injury to his right shoulder. The Plaintiff seeks relief in the third cause of action for negligence and in the fourth cause of action for emotional distress for the injuries caused by the Defendant’s negligent treatment.

However, the Plaintiff also alleges a first cause of action for fraud and a second cause of action for negligent misrepresentation based on allegations that the Defendant made false representations to induce him to agree to the treatment and that the Plaintiff relied upon the representations when he agreed to the treatment. The Plaintiff alleges in paragraph 8 of the first cause of action for fraud that the Defendant represented that she was a clinician for the Thai Gymnastics Olympic Team and that if the Plaintiff used her services, the Plaintiff would be free of pain for three months. The Plaintiff alleges in paragraph 9 that he allowed the Defendant to provide the chiropractic treatment in reliance on these representations. The Plaintiff alleges in paragraph 11 that the Defendant knew that the representations were false and that the Defendant made the false representations with the intent to defraud the Plaintiff into agreeing to the treatment. These allegations were incorporated into the second cause of action for negligent misrepresentation.

1. Issue Decided in Prior Action is Identical

The analysis of issues in actions is done through the primary right theory, which is a theory of code pleading that has long been followed in California. Crowley v. Katleman (1994) 8 Cal. 4th 666, 681-682. It provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. Id. A primary right is indivisible: the violation of a single primary right gives rise to but a single cause of action. Id.

The primary right is simply the plaintiff’s right to be free from the particular injury suffered. Id. This must be distinguished from the legal theory on which liability for that injury is premised. Id. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. Id.

The primary right theory is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. Id. The theory prevents this result by either of two means:

1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement under CCP section 430.10(c); or
2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata.

Under the latter circumstance, an adverse judgment in the first suit is a bar even though the second suit is based on a different theory or seeks a different remedy. Id.

A comparison of the claim from the Small Claims Court to the Complaint in the pending action reveals that the issues decided in the prior adjudication are identical to the claims in the third and fourth causes of action in the Complaint. The Plaintiff seeks relief on the ground that the Defendant caused him to suffer personal injuries to his right shoulder. Both of the Plaintiff’s suits are based on the same primary right, i.e., the right to be free from injury due to negligent conduct. The Plaintiff claims in each suit that the Defendant had a primary duty not to cause injury through negligent conduct and that the Defendant breached that duty by providing negligent chiropractic care. The Plaintiff claims that the Defendant’s breach of her primary duty has caused him damages.

However, the first and second causes of action in the pending Complaint are not based on the same primary right. The Plaintiff alleges in these causes of action that he was induced to agree to the treatment by the Defendant’s false representations. These claims arise from a different primary right, which is the right to be free from deceit.

Further, as noted above, California law holds that a judgment in a Small Claims Court precludes the re-litigation of the same claim. Here, the judgment in 13G00453 precludes the Plaintiff from re-litigating his claim that he suffered injury due to the Defendant’s negligent chiropractic treatment. It does not preclude the Plaintiff from asserting claims based on fraudulent inducement into agreeing to the treatment because this claim was not litigating in the Small Claims Court.

Therefore, a review of the claim in 13G00453 and the Complaint in the pending case reveals that the Plaintiff sought in the Small Claims Court and in his third and fourth causes of action in the pending Complaint to obtain relief for the same primary right, i.e., the right to be free from injury by the Defendant. Accordingly, the Court finds that the first prong of the res judicata test exists with regards to the third and fourth causes of action in the pending Complaint.

2. Final Judgment on the Merits

As noted above, the Court in 13G00453 entered a judgment in favor of the Defendant on the ground that the Plaintiff did not meet his burden of proof. This was a final judgment on the merits of the Plaintiff’s claim that he suffered personal injuries as a result of the Defendant’s negligent chiropractic care.

Therefore, the second prong of the res judicata test exists with regards to the third and fourth causes of action in the pending Complaint.

3. Identical Parties or Parties in Privity

The pending action is directed at Defendant, Suchit Tusisi. This is the same person against whom the Plaintiff directed his claim in 13G00453.

Therefore, the third prong of the res judicata test exists because the Defendant in the pending action is to the Defendant in 13G00453.

Accordingly, the Defendant has demonstrated that there are grounds to sustain the demurrer to the third and fourth causes of action in the Complaint based on res judicata because the Plaintiff has attempted to seek relief for the invasion of the same primary right in the Small Claims Court.

Therefore, the Court sustains the demurrers to the third and fourth causes of action. It does not appear possible to correct this by amendment because the Plaintiff is barred from re-litigating his claim that the Defendant caused him to suffer damages through negligent chiropractic treatment.

Further, California law imposes the burden on the Plaintiff to demonstrate the manner in which he can amend his pleadings to correct the defects identified in the demurrer. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff did not file any opposition papers to meet this burden and he offers no basis to find that he can plead around the defense that the doctrine of res judicata bars his third and fourth causes of action claims.

Therefore, the Court does not grant leave to amend.

In summary, the doctrine of res judicata does not apply to the first and second causes of action. The causes of action arise from a different primary right, i.e., the right to be free from fraud. Further, California law holds that a judgment in a Small Claims Court does not estop the litigation of causes of action that arose from the same transaction and that could have been raised and litigated in the first suit between the parties.