2013-00146305-CU-PO

Gina Poulos vs. Jetro Cash and Carry Enterprises LLC

Nature of Proceeding: Hearing on Demurrer

Filed By: Van Der Putten, Crystal L.

Defendants Jetro Cash and Carry Enterprises, LLC, Jetro Holdings, LLC, Jetro
Restaurant Depot LLC, RD/JET, LLC, and JDMH Real Estate of Sacramento, LLC’s
Demurrer to the Complaint is overruled.

Defendants’ Request for Judicial Notice of facts not subject to dispute concerning the
relationship of defendants is denied as such is not the type of fact that is not subject to
dispute.

Defendants’ request for judicial notice is otherwise granted. (See Poseidon Devel.,
Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-18. The court,
however, does not accept the truth of any facts within the judicially noticed documents
except to the extent such facts are beyond reasonable dispute. (See Poseidon Devel.,
152 Cal.App.4th at 1117-18.) see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198
Cal.App.4th 256, 265. Thus, the court is not taking judicial notice of the Declaration of
Livingston in support of the motion to enforce settlement, nor the truth of the
statements made in the points and authorities or other documents that are not court
orders.

Plaintiff filed an earlier action in Sacramento County against RD America LLC entitled
Poulos v. Restaurant Depot, Case No. 34-2011-00107451, in which plaintiff alleged
she suffered personal injuries from a slip and fall accident at a Restaurant Depot
warehouse on June 9, 2011. In the earlier action, the Court granted RD America’s
motion to enforce a 998 offer that Plaintiff had accepted from RD America. The Court
did not grant a motion under 664.6, which would have resulted in a judgment. No
judgment or dismissal was entered in that case against Gina Poulos in favor of RD
America. Moving defendants were not party to the underlying 998 offer.

Defendants demurrer to the 1st cause of action for Negligence, 2nd cause of action for
Premises Liability and 3rd cause of action for Products Liability on the ground that the
plaintiffs have previously settled the prior case. Defendants do not rely on the doctrine
of res judicata, which does not apply here because there was no final judgment
entered against either plaintiff in the first case. The doctrine of res judicata only applies
to actions between the same parties that have been pursued to a final judgment.
There is no judgment in the earlier action.

The doctrine of res judicata precludes a second suit between the same parties on the
same cause of action. (People v. Barragan (2004) 32 Cal.4th 236, 253. All claims
based on the same cause of action must be decided in a single suit. If not, the first
action bars relitigation of a second. Consequently, a plaintiff may not split a single
cause of action or relitigate the same cause of action on a different legal theory or
seek different relief. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.
Res judicata “rests upon the ground that the party to be affected, or some other with
whom he is in privity, has litigated, or had an opportunity to litigate the same matter in
a former action in a court of competent jurisdiction, and should not be permitted to
litigate it again to the harassment and vexation of his opponent.” Citizens for Open
Access to Sand and Tide, Inc. v. Seadrift Ass’n (1998) 60 Cal. App. 4th 1053, 1065.
Under California law, res judicata precludes a party from relitigating: (1) the same
claim, (2) against the same party, (3) when that claim proceeded to a final judgment
on the merits in a prior action. See Id. (Emphasis added)

In the earlier action, the court granted the motion to enforce the 998 settlement offer as
to Gina Poulos. (See Case 2011- 00107451, ROA Item 154, Notice of Entry of Order,
July 9, 2013. The Court denied the motion to enforce as to James Poulos. (ROA #
152, July 12, 2013.) No final judgment or order dismissing Gina Poulos claims was
ever entered in case number 2011-00107451. The Court of Appeal dismissed Gina
Poulos appeal of the order because it was “non-appealable.” (ROA # 157, September
30, 2011. As to James Poulos, moving parties contend that Restaurant Depot will be
filing a motion for summary judgment in the earlier case.

The claims brought in the first action have not proceeded to a final judgment as to
either party or any of the moving defendants, therefore it does not appear on the face
of the Complaint that no cause of action is stated because of a settlement in the earlier
case as to Gina Poulos.

The primary right theory “is invoked most often when a plaintiff attempts to divide a
primary right and enforce it in two suits. 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, Code Civ. Proc., § 430.10, subd. (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. The latter application of the primary right theory appears to
be most common: numerous cases hold that when there is only one primary right 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.” South Sutter, LLC v. LJ Sutter Partners,
L.P. (2011) 193 Cal. App. 4th 634, 660.

The motion to strike the Complaint in its entirety is denied for the reasons stated
above.

Answer to be filed on or before April 1, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.