Case Name: Corrie Johnson v. Nordstrom, Inc., et al.

Case No.: 18CV323923

As the Court has noted previously, this matter arises from an attempt by self-represented Plaintiff Corrie Johnson (“Plaintiff”) to use the California court system to make a collateral attack on a Georgia judgment in a lawsuit she brought against Defendant Nordstrom, Inc. (“Defendant”) in Georgia that was upheld on appeal.

The operative First Amended Complaint (“FAC”) filed by Plaintiff on August 1, 2018 alleges that Plaintiff “filed a complaint regarding quantum meruit and unjust enrichment no June 24, 2014 in Fulton County Atlanta, Georgia. These claims were based on the fact that Johnson provided an idea for the defendant that was the complete basis for the ‘Nordstrom Rack App’ . . . Quantum meruit and unjust enrichment were litigated in Georgia merely because that is where the plaintiff resides as well as the defendant’s doing business there as required. The defendant won on a summary judgment filed February 28 2015 and prevailed on June 9, 2015. However, the summary judgment in Georgia was procured by extrinsic fraud. . . . [T]he defendant specifically was dishonest about the calculation of damages. Also, the defendant also suppressed the names of individuals that had the only true personal knowledge that could have aided in any support of attacking the defense and protecting her claim. The two witnesses that were submitted to support their entire case are fraudulent . . . The plaintiff, request this court to litigate fraud on its merits to determine the truth and to offset the judgment procured by the fraud in question. Fraud was never the subject of the underlying suit, it was merely quantum meruit and/or unjust enrichment.” (FAC at ¶¶ 10-20.)

The FAC states a single cause of action labeled “Cause of Action: Extrinsic Fraud.” What is actually alleged appears to be a claim for fraudulent concealment based on Defendant’s alleged breach of a purported duty to disclose owed to an opponent in litigation. In its Answer to the FAC filed March 15, 2019, Defendant raised several affirmative defenses, including that the action is barred by res judicata and/or collateral estoppel and that the action is time-barred.

Plaintiff previously brought a motion for summary judgment and/or summary adjudication in the alternative in May 2019. Plaintiff argued that “the defendant does not have adequate defense in the action.” (Plaintiff’s prior notice of motion, filed May 9, 2019, at p. 1:23-24.) The prior motion, which was treated as a motion for summary judgment only due to Plaintiff’s failure to comply with Rule of Court 3.1350(b), was denied by the Court on July 25, 2019 for failure to meet the initial burden. The Court noted that when a res judicata/collateral estoppel defense in a California lawsuit is based on a sister state judgment, the analysis begins with the Full Faith and Credit clause of the U.S. Constitution, which requires the forum state (here California) to give the sister state judgment the same force and effect it is entitled to under the law of the state that issued it (here, Georgia). Neither side addressed res judicata/collateral estoppel under Georgia law in the prior motion, instead they both only cited California law. On the prior motion the Court found that the FAC itself and the material submitted for judicial notice demonstrated that triable issues remained.

Plaintiff has now filed what is essentially a renewal of the prior motion, arguing that this second motion is justified by “new” facts and law. Defendant opposes the motion in part on the basis that the motion is barred by Code of Civil Procedure (“CCP”) §437c(f)(2).

Requests for Judicial Notice

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evidence Code §450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) As was the case on the prior motion, both sides have submitted requests for judicial notice.

Plaintiff’s Request

With her motion Plaintiff has submitted a request for judicial notice of 12 documents (exhibits A-L). Plaintiff’s request is DENIED in part and GRANTED in part as follows.

Notice of exhibits A-G is DENIED. Exhibits A and B are copies of Nordstrom discovery responses in the Georgia litigation. California courts generally only take judicial notice of the content of discovery responses to the extent they contradict allegations of a complaint or cross-complaint. (See Bockrath v. Aldrich Chem. Co., Inc. (1999) 21 Cal.4th 71, 83; see also Del. E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605 [court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.]) There is no evidence of that here, and the mere existence of the responses is not relevant to the primary material issue before the Court; whether Plaintiff’s motion is permitted under CCP §437c(f)(2).

Notice of exhibit C, a copy of an “affidavit of Troy Nelson” apparently submitted by Defendant in support of summary judgment in the Georgia litigation, is denied as declarations may not be judicially noticed as to their contents (which is what is sought here). (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057 [court may take judicial notice of existence of declaration but not of facts asserted in it]; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [court may not notice the truth of declarations or affidavits filed in court proceedings]). The mere existence of the declaration is irrelevant to the material issues before the Court.

Notice of exhibit D, a copy of what Plaintiff states is the definitions of damage, damages and injury taken from Black’s law online dictionary is denied as the document is simply not relevant to the primary issue before the Court; whether Plaintiff’s motion is permitted under CCP §437c(f)(2). Notice of exhibits E and F, copies of emails from October 2011 is denied as private communications are generally not appropriate subjects of judicial notice and the communications are irrelevant to the material issues before the Court. Finally notice of exhibit G, a copy of a single page from what Plaintiff represents is Nordstrom’s annual report for 2014 “accessible to the public on the World Wide Web dated March 16, 2015” (Request at p. 6:26-27), is denied as Evidence Code §452(h) is not applicable to such material as Plaintiff asserts. (See Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal.App.4th 514, 519 [refusing to take notice of web site pages of the American Coal Foundation and the U.S. Dept. of Energy]; Duronslet v. Kamps (2012) 203 Cal App 4th 717, 737 [refusing to take judicial notice of information on the Cal. Bd. of Registered Nursing web site].)

Notice of exhibits H-K, copies of court orders from the prior Georgia litigation, is GRANTED pursuant to Evidence Code §452(d) (court records of a sister state) only. As the four documents are court orders, notice can be taken of their contents and legal effect. Finally, notice of exhibit L, a copy of Plaintiff’s complaint from the Georgia litigation, is GRANTED pursuant to Evidence Code §452(d), but only as to its existence and filing date.

Defendant’s Request

With the opposition Defendant has submitted a request for judicial notice of seven documents (exhibits A-G). Defendant’s request is also DENIED in part and GRANTED in part.

Notice of exhibit A, a copy of the operative FAC, is GRANTED pursuant to Evidence Code §452(d). Notice of exhibits B and C, copies of a discovery motion filed in the Georgia litigation and the court order on that motion respectively, is DENIED as neither document is relevant to the material issue before the Court.

Notice of exhibits D-G, copies of documents filed by Plaintiff in the Georgia litigation and court orders from that litigation, is GRANTED pursuant to Evidence Code §452(d). Only the court orders (exhibits F and G) are noticed as to their contents.

Motion for Summary Judgment/Adjudication

The pleadings limit the issues presented for summary judgment/adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

Cal. Rule of Court 3.1350(b) states in pertinent part: “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

The moving party may generally not rely on additional evidence filed with its reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions . . .”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

Where a Plaintiff moves for summary judgment/adjudication, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (See CCP §437c(p)(1); Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287, disapproved on other grounds in Aguilar; S.B.C.C., Inc. v. St. Paul Fire & Marine, Ins. Co. (2010) 186 Cal.App.4th 383, 388.) This means that a plaintiff who bears the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable finder of fact to find any underlying material fact more likely than not. “Otherwise, he would not be entitled to judgment as a matter of law.” (Aguilar, supra at p. 851; LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776 [burden is on plaintiff to persuade court there is no triable issue of material fact].)

Neither party can rely on its own pleadings (even if verified) as evidence to support or oppose a motion for summary judgment or summary adjudication. (See College Hospital, Inc. v. Sup Ct. (1994) 8 Cal.4th 704, 720, fn. 7; Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054. However, either party may rely on admissions of fact contained in the opposing party’s pleadings as evidence. (See 24 Hour Fitness, Inc. v. Sup. Ct. (1998) 66 Cal.App.4th 1199, 1211; Valerio v. Andrew Youngquist Const. (2002) 103 Cal.App.4th 1264, 1271. Unequivocal admissions in pleadings are treated as “judicial admissions”—i.e., they are conclusive and cannot be controverted by the pleader. (Heater v. Southwood Psychiatric Ctr. (1996) 42 Cal.App.4th 1068, 1079-1080.) Here notably the FAC filed August 1, 2018 admits at ¶5 that Plaintiff was employed by Nordstrom “in the 90’s and early 2000’s,” establishing that this employment is not a “new” fact.

Plaintiff’s MSJ/MSA is DENIED as it is barred by CCP §437c(f)(2).

CCP §437c(f)(2) states in pertinent part that “[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the Court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Emphasis added. See Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1093 [second summary judgment motion barred by Section 437c(f)(2) where defendant relied upon the same facts and law as that asserted its first motion for summary judgment or, in the alternative, summary adjudication]; Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 734 [“The Bagley court held a second summary judgment motion is barred where it offers ‘no ‘newly discovered facts or circumstances,’ ‘ does not suggest that ‘ ‘a change of law’ ‘ had occurred, and does not request the judge to ‘make a finding’ concerning these statutory requirements.”])

Plaintiff’s prior motion was for summary judgment, or in the alternative, summary adjudication. Plaintiff’s current motion seeks “summary judgment or in the alternative motion for summary adjudication in her favor against Nordstrom, Inc. The issues set forth in the summary adjudication are: 1) Nordstrom, Inc. has committed intrinsic fraud. 2) Nordstrom, Inc. owes specific damages and relief. 3) Nordstrom, Inc. cannot rely on Res Judicata as an affirmative defense. 4) Nordstrom, Inc. cannot rely on Collateral Estoppel as an affirmative defense.” (Notice of Motion at p. 2:1-10.)

In her moving papers Plaintiff argues her current motion is not barred by CCP §437c(f)(2) because “[n]ewly discovered facts are simply that the post-trial orders respective to the post trial motions that mention fraud. These are not final orders which were facts never addressed in the first summary judgment. The plaintiff did not know this fact, as it was not submitted in any of her Separate Statement of Undisputed facts. Another new circumstance of law is applying her employee-employer relationship (which was known by the defendant) as a basis for a confidential relationship. Fiduciary relationships are confidential relationship [and?] are often interchangeable in law. Given these two grounds [of?] variation the motion can be heard by this court in this particular procedure which she will also prevail in such motion by proving all the elements of extrinsic fraud and exposing the flaws in the opposing party’s affirmative defenses.” (Plaintiff’s Memo. of points & authorities at p. 3:16-26, brackets added.)

Neither of these arguments demonstrate that there are “newly discovered facts or circumstances” or a “change in law.”

Plaintiff’s prior employment with Nordstrom is clearly not a “new” fact as it is alleged in the FAC itself (at ¶5) filed August 1, 2018 and Plaintiff would always been aware of her own employment history. Nor is does it represent a change in law since the prior motion. The language Plaintiff relies on (she quotes Rest. 2d. Agency §395 at p. 6 of her points & authorities) does not support the argument being made—that Nordstrom somehow owed her a duty as a former employee. Section 395 of the Restatement Second plainly states that an agent owes his/her principal a duty not to use confidential information after the relationship ends, it does not describe any duty owed by the principal (Nordstrom) to the agent (Plaintiff). Even if it could be construed as a “new” fact it would not help Plaintiff meet her initial burden on summary judgment. Plaintiff must establish that under Georgia law Nordstrom owed her some kind of duty to disclose during the Georgia litigation. California law does not and cannot create a “duty to disclose” owed by civil litigants in another state’s court system.

Plaintiff’s current assertion that none of the post-summary judgment orders in the Georgia litigation qualify as “final” orders also does not describe a “new” fact or a change in law.

First, none of the Georgia post-summary judgment orders can be reasonably characterized as “new” or establishing a “change in law” since Plaintiff’s last motion. They are all several years old at this point and Plaintiff was obviously aware of them when each was made as she was a party to the Georgia litigation and often the party that had brought the motion being ruled upon.

Second Plaintiff has failed to show that under the relevant body of law—Georgia law—the post-summary judgment orders do not qualify as “final” orders. Plaintiff has not cited any Georgia law in support of this argument. Georgia law is the law that this Court must apply under the Full Faith and Credit clause in determining the force and effect to give the post-summary judgment orders. Under Georgia law, “‘[w]hether an order is final is final and appealable is judged by its function and substance, rather than any magic language.’ An order finally adjudicates a pending issue when it does so expressly or by necessary implication.” (Georgia Government Transparency and Campaign Finance Comm. v. State Mutual Insurance Company, 321 Ga.App. 480, 482 (2013), internal citations omitted. See also Paine v. Nations, 301 Ga.App. 97, 99 (2009) [“Even if a trial court’s order does not state that it is a grant of final judgment, ‘it nevertheless constitutes a final judgment within the meaning of OCGA § 5-6-34(a)(1) where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court.’”])

By this standard, the various post-summary judgment Georgia orders submitted by both sides for judicial notice could be considered final orders supporting a res judicata/collateral estoppel defense against Plaintiff’s extrinsic fraud claim. For example, Exhibit I to Plaintiff’s request for judicial notice suggests her fraud argument was considered in a July 5, 2017 “final” order on various motions by the same Georgia Judge (Judge John Goger) who granted Nordstrom summary judgment.

The Court notes that Defendant has (again) submitted objections to Plaintiff’s supporting evidence with its Opposition to the motion. As the Court has determined that Plaintiff’s motion is barred by CCP §437c(f)(2) it is not necessary for the Court to rule on those objections. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP §437c(q).)