Case Name: Mazen Arakji v. Goodwill of Silicon Valley
Case No.: 19CV343442

This is the second of two lawsuits filed by Plaintiff Mazen Arakji (“Plaintiff”) against Defendant Goodwill of Silicon Valley (“Defendant”) asserting that Defendant harassed and discriminated against him due to his religious creed, national origin, ancestry and disability.

The Complaint in this action filed February 28, 2019 states five causes of action, all alleged violations of the Fair Employment and Housing Act (“FEHA,” Gov. Code §12940 et seq.): 1) “Denial of employment due to religious creed, national origin, ancestry, and disability.” 2) “Job applicant inquiries as to the nature or severity of a disability,” 3) “Limitation and segregation in employment due to religious creed, national origin, ancestry and disability,” 4) “Harassment in employment due to religious creed, national origin, ancestry and disability,” and 5) “Employee inquiries as to the nature or severity of a disability.” (See Complaint at p. 2.) The claims are based on events that allegedly took place from April 2017 through November 2017 and Plaintiff alleges he received a right to sue letter from the DFEH on March 1, 2018.

As an initial matter the Court notes that the Complaint lacks page and line numbers and fails to comply with the various California Rules of Court applicable to the formatting of pleadings, page numbering, etc. (See Rules of Court 2.108-2.112 generally.) Rule of Court 2.112 states that: “Each separately stated cause of action, count, or defense must specifically state: (1) Its number (e.g., ‘first cause of action’); (2) Its nature (e.g., ‘for fraud’); (3) The party asserting it if more than one party is represented on the pleading (e.g., ‘by plaintiff Jones’); and (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’).” The failure to comply with this rule may, depending on the circumstances, render a pleading confusing and subject to a special demurrer for uncertainty. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, n.2.) Plaintiff is reminded that “when a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 [internal citations omitted].)

Currently before the Court is Defendant’s demurrer to and motion to strike portions of Plaintiff’s Complaint.

Request for Judicial Notice
In support of its demurrer Defendant has submitted a request for judicial notice of two documents, attached as exhibits A and B to the request, pursuant to Evidence Code §452.

Exhibit A is a copy of Plaintiff’s first (small claims) lawsuit accusing Defendant of violating Gov. Code §12940, case no. 18SC076592. The document is a copy of Plaintiff’s “Claim and Order to Go to Small Claims Court,” filed November 29, 2018. That Small Claims action alleged that Defendant owed Plaintiff $10,000 due to alleged “violation of Cal. Gov. Code 12940; Discrimination and harassment due to religious creed, national origin, ancestry, and disability.” A two-page attachment to the Claim listed several additional allegations in 22 numbered paragraphs. The first nineteen of these paragraphs are repeated, almost verbatim, as numbered paragraphs 1-19 in the “Facts” section of the current Complaint. The allegations are based on events that allegedly took place from August through October 2018 and Plaintiff alleged in that action that he had received a right to sue letter from the DFEH on November 28, 2018.

Exhibit B is a copy of the January 30, 2019 Notice of Judgment in the small claims action. It states that Judgment was entered on January 30, 2019 with the Court finding (through checked paragraph number 2) that “Defendant does not owe plaintiff any money on plaintiff’s claim. Plaintiff takes nothing. Insufficient evidence shown.”

Notice of both documents is GRANTED pursuant to Evidence Code §452(d) (court records). Notice can be taken of both the existence and legal effect of the Court’s January 30, 2019 Notice of Judgment.

Demurrer to Complaint
The Court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

Defendant demurrers to the entire Complaint and each individual cause of action on the ground that they are all “barred by the doctrine of res judicata” and fail “to state facts sufficient to constitute a cause of action.” (See Defendant’s Demurrer at pp. 1:22-3:2.)

Defendant’s demurrer to the entire complaint on the basis that it is barred by the res judicata/collateral estoppel effect of the January 30, 2019 Judgment in the prior small claims action, in which Plaintiff previously alleged that Defendant had violated the FEHA by discriminating against him and harassing him on the basis of “religious creed, national origin, ancestry, and disability,” is SUSTAINED.

A general demurrer lies where the facts alleged in the complaint or matters judicially noticed show that a plaintiff’s claim is barred by res judicata or collateral estoppel. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 792 (“Boeken”); Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 556 [complaint barred by collateral estoppel]; Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1270-1271 [action barred by collateral estoppel subject to demurrer even if issue wrongly decided in first action].)

The doctrine of res judicata precludes parties or their privies from re-litigating a cause of action that has finally determined by the court. (See Code Civ. Proc. §1908(a)(2).) “A sister doctrine of res judicata is collateral estoppel, under which a prior judgment . . . operates as an estoppel as to those issues actually and necessarily decided in the prior action.” (Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221, 1226, emphasis added.) In reaching its January 30, 2019 Judgment, the small claims court necessarily decided that Plaintiff did not have sufficient evidence to support his claims of discrimination and harassment “due to religious creed, national origin, ancestry and disability.”

For purposes of collateral estoppel, a final judgment includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect based on the following factors: (1) whether the decision was not avowedly tentative; (2) whether the parties were fully heard; (3) whether the court supported its decision with a reasoned opinion; and (4) whether the decision was subject to an appeal. (South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 663.) Furthermore, collateral estoppel also precludes a party from raising “any legal theory or factual matter which could have been asserted in support of or in opposition to the issue which was litigated.” (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1565-1566, emphasis added; see also Witkin, Cal. Procedure (5th ed. 2010) Judgment, §419 [citing cases].)

“It is well established that 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.) “[W]e can perceive of no rationale for refusing to afford collateral estoppel effect to claims litigated against a small claims plaintiff. Fundamental fairness dictates that such a plaintiff, having chosen to litigate in an informal setting by bringing an action in small claims court, cannot cite the informality of that forum to gain a second chance to litigate a previously decided issue in a related matter. Allowing a small claim plaintiff to relitigate an issue already decided against him in the forum of his choice is inconsistent with the public policy that ‘a plaintiff electing to proceed in a small claims court is to be finally bound by an adverse judgment.’” (Id. at p. 1386, internal citations omitted, emphasis in original.) “A small claims plaintiff is collaterally estopped from relitigating the same issue in superior court where the record is sufficiently clear to determine that the issue was litigated and decided against plaintiff in the small claims action. In addition it is well-settled that the claim preclusion aspect of the doctrine of res judicata applies to small claims judgments.” (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 791, internal citation omitted.)

In his opposition Plaintiff argues that “[s]ince all allegations in this case occur one year before any of the allegations in the small claims case, it would be inconceivable for the matter to have already been judged,” (Opposition, at ¶6). This is unpersuasive. Assuming for purposes of demurrer that the factual allegations in both lawsuits are true, Plaintiff necessarily had to know of the alleged discrimination the current lawsuit is based on when he brought his small claims action. As noted above, collateral estoppel applies to “any legal theory or factual matter which could have been asserted” in the prior action. Plaintiff clearly could have (and should have) included his allegations of discrimination from April through November 2017 (made in the present action) in his November 29, 2018 small claims action alleging discrimination from August through October 2018, and collateral estoppel therefore applies. Plaintiff cannot “piecemeal” his discrimination claims into a series of separate lawsuits alleging that Defendant committed the exact same wrongs against him at different periods of time.

Plaintiff bears the burden of proving an amendment would cure the defect identified on demurrer. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; see also Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112 fn. 8; Drum v. San Fernando Valley Bar Ass’n. (2010) 182 Cal.App.4th 247, 253.) Plaintiff offers no indication of how the complaint could be amended or how this would cure the defect. Plaintiff also does not actually request leave to amend. While leave to amend is typically granted in the case of a challenge to an original complaint, there is no reluctance to sustain a demurrer without leave to amend where the only issues are legal ones: “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436; see also Schonfeldt v. State of Calif. (1998) 61 Cal.App.4th 1462, 1465 [if no liability as a matter of law, leave to amend should not be granted].)

As the Court does not see any way for Plaintiff to allege FEHA violations against Defendant premised on discrimination and harassment due to religious creed, national origin, ancestry, and disability during his employment with Defendant that would not be subject to the res judicata/collateral estoppel effect of the small claims Judgment, leave to amend is DENIED

As the Court has sustained the demurrer to the entire Complaint on res judicata/collateral estoppel grounds, it is not necessary for the Court to address Defendant’s arguments directed at the individual causes of action.

Motion to Strike portions of the Complaint
Defendant’s motion to strike portions of the Complaint, specifically “Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19 ‘9, 11, 34, 40, 45, and 52,” (Notice of Motion at p. 1:24) is DENIED as MOOT in light of the Court’s ruling on the demurrer.