Filed 4/27/20 Joyce v. Bassir CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ROSE JOYCE,

Plaintiff and Appellant,

v.

H. BRONSON BASSIR et al.,

Defendants and Respondents.

G057169

(Super. Ct. No. 30-2017-00925802)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, James J. Di Cesare, Judge. Affirmed.

Law Offices of Forrest R. Miller and Forrest R. Miller for Plaintiff and Appellant.

Voss, Silverman & Braybrooke and A. Brandon Bassir for Defendants and Respondents.

* * *

Plaintiff Rose Joyce appeals from an order dismissing her action with prejudice. Defendants H. Bronson Bassir, H. Bronson Bassir, D.D.S. Inc., and Seascape Cosmetic and Implant Dentistry (collectively, defendants), filed a demurrer to Joyce’s first amended complaint. The trial court sustained the demurrer without leave to amend and then denied Joyce’s motion for reconsideration. Joyce contends the trial court erred by ruling her claims are barred by res judicata. We disagree. Joyce’s claims are precluded by her prior small claims action against defendants. Thus, we conclude the demurrer was properly sustained without leave to amend and affirm the trial court’s order.

I

FACTS

A. The Prior Smalls Claims Action

In September 2016, Joyce filed a small claims action against defendants. She alleged defendants owed her $10,000 for “Medical Bills, Dental Malpractice- Incorrect crown Implant – Damage to crowns & implant” relating to dental services performed between July and November 2015. Though Joyce only requested $10,000, the jurisdictional limit for small claims brought by natural persons (Code Civ. Proc., § 116.221), she alleged it would cost “over $64,000 to repair [the] damage” caused by defendants. Joyce filed an amended small claims complaint in November 2016 which corrected the name of defendant H. Bronson Bassir (previously named as “Bassir H [sic] Bronson”), but her causes of action and request for damages remained the same.

In response, defendants filed their own small claim against Joyce. Defendants alleged they placed multiple crowns and implants for her. After the procedure, she accused them of using “cheap” materials. To placate Joyce, defendants allegedly placed new implants and crowns for her at no charge even though she had consented in writing to the materials used in the initial procedure. Defendants sought $5,000 from Joyce as reimbursement for these additional services.

On February 27, 2017, the small claims court held a trial on Joyce and defendants’ respective claims. The court’s minute order states Joyce and H. Bronson Bassir testified and presented exhibits. The court found neither side owed the other any money and entered judgment accordingly.

The day after the trial, Joyce filed a Request for Court Order, in which she requested the small claims court reconsider her case. In her request, Joyce contended she did not receive a fair trial on her breach of contract claim, which alleged defendants failed to place one of the crowns they had promised. The court denied Joyce’s request on March 22, 2017.

B. The Instant Lawsuit

On June 14, 2017, Joyce, representing herself, filed the instant lawsuit against H. Bronson Bassir, D.D.S. Inc. and Seascape. She then filed the first amended complaint (the complaint) on November 22, 2017, which added H. Bronson Bassir as a defendant.

The complaint contained two causes of action. In the first cause of action for breach of contract, Joyce alleged defendants agreed to place implants and crowns using materials of a certain quality. Defendants allegedly breached this agreement because “[t]he services performed were defective and the materials used . . . were not the materials agreed upon by the parties.” As a result of these breaches, Joyce had to see another dentist to replace the defective implants and crowns. The second cause of action, for fraud, mirrors the breach of contract claim. Generally, Joyce alleged defendants represented they could successfully perform the dental procedure and that certain materials would be used. These representations, she alleged, were false. Defendants knew they could not complete the procedure or provide the specified materials. Joyce sought compensatory and exemplary damages in the total amount of $600,000.

Defendants demurred to the complaint, contending, among other arguments, that both claims had been litigated in the small claims action and were barred by claim preclusion. The trial court agreed and sustained defendants’ demurrer without leave to amend.

Shortly thereafter, Joyce, still representing herself, filed an ex parte motion requesting that the demurrer be overruled or that the court grant leave to amend. The trial court deemed this a motion for reconsideration. Defendants filed an ex parte motion for an order dismissing the action with prejudice. The trial court set a hearing on both motions and allowed the parties to file supplemental briefs. On the morning of the hearing, a substitution of attorney was filed on behalf of Joyce. The trial court continued the hearing for approximately one month and allowed the parties to submit additional briefs, which they did. On the hearing date, however, the trial court again continued the hearing and requested supplemental briefing on whether Joyce’s claims were barred by claim preclusion.

Following supplemental briefing and a hearing, the trial court issued a minute order denying Joyce’s motion on the merits, finding her claims were barred by claim preclusion. The trial court also denied leave to amend since Joyce had not identified any way to amend the complaint to state viable claims. Based on this ruling, the trial court granted defendants’ motion to dismiss the action with prejudice. This appeal followed.

II

DISCUSSION

The only issue in this appeal is whether the trial court correctly determined Joyce’s claims are barred by claim preclusion.

A. Legal Standard on Demurrer

“In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. [Citation.] Where the demurrer was sustained without leave to amend, we consider whether the plaintiff could cure the defect by an amendment. The plaintiff bears the burden of proving an amendment could cure the defect.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) “If all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer.” (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.)

B. Claim Preclusion

“The law of preclusion helps to ensure that a dispute resolved in one case is not relitigated in a later case. Although the doctrine has ancient roots [citation], its contours and associated terminology have evolved over time. We now refer to ‘claim preclusion’ rather than ‘res judicata’ [citation], and use ‘issue preclusion’ in place of ‘direct or collateral estoppel.’ [Citations.]

“Claim and issue preclusion have different requirements and effects. Claim preclusion prevents relitigation of entire causes of action. [Citations.] Claim preclusion applies only when ‘a second suit involves (1) the same cause of action (2) between the same parties [or their privies] (3) after a final judgment on the merits in the first suit.’ [Citation.] Issue preclusion, by contrast, prevents ‘relitigation of previously decided issues,’ rather than causes of action as a whole. [Citation.] It applies only ‘(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.’” (Samara v. Matar, supra, 5 Cal.5th at pp. 326-327.)

We review whether Joyce’s claims are barred by claim preclusion. There is no dispute both actions involve the same parties. Joyce contends the complaint asserts new claims that were not actually litigated in the small claims action. She further argues the small claims court did not issue a final judgment on the merits because her claims were not fully litigated, and the small claims court lacked jurisdiction. These contentions are addressed below.

1. Same Cause of Action

“A clear and predictable res judicata doctrine promotes judicial economy. 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. ‘“Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.”’ [Citation.] A predictable doctrine of res judicata benefits both the parties and the courts because it ‘seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.’” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897 (Mycogen), italics omitted.)

“To determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have ‘consistently applied the “primary rights” theory.’” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) “‘[T]he primary right is simply the plaintiff’s right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: “Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.” [Citation.] The primary right must also be distinguished from the remedy sought: “The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.”’” (Mycogen, supra, 28 Cal.4th at p. 904.) “[U]nder the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th at p. 798.)

Joyce’s causes of action in this lawsuit involve the same primary rights as the causes of action in her small claims lawsuit. Her breach of contract claim is based on two alleged breaches. First, defendants defectively performed the contracted dental procedure. Second, defendants did not use the agreed-upon materials. The first breach implicates the same harm as Joyce’s malpractice claim: bodily injury resulting from defendants’ defective placement of the implants and crowns. As to the second breach, it involves the same harm as Joyce’s breach of contract claim in the prior action. While the specific breaches are slightly different (failure to place a crown and different materials used), they constitute the same injury: a violation of Joyce’s contractual right to have the agreed-upon implants and crowns placed.

Joyce’s fraud claim is based on the same allegations as her breach of contract claim. Generally, she alleged defendants misrepresented they would properly perform the dental procedure and use certain materials. Thus, like the breach of contract claim, the fraud claim implicates the same harms as the claims in the prior action: bodily injury caused by defendants’ negligence and violation of Joyce’s contractual rights.

Joyce appears to argue the complaint asserts new claims and issues that were never actually litigated in the prior action. She cites Sanderson v. Niemann (1941) 17 Cal.2d 563, Sanders v. Walsh (2013) 219 Cal.App.4th 855, and Rymer v. Hagler (1989) 211 Cal.App.3d 1171, for this contention. But these cases are inapposite because they involve issue preclusion (collateral estoppel), not claim preclusion. (Sanderson, at p. 573; Sanders, at p. 865; Rymer, at p. 1178.) Unlike issue preclusion, claim preclusion does not require actual litigation of the subject claims. Instead, it “‘“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 . . . .”’ [Citation.] . . . . ‘[T]he law is clear that actual litigation is not necessary as long as there has been “a fair opportunity” to litigate the claim.’” (Mark v. Spencer (2008) 166 Cal.App.4th 219, 229.)

Joyce could have litigated her breach of contract and fraud claims in the prior action. She did not. To the extent she contends the small claims court could not have heard these claims due to its jurisdictional limits on damages (§§ 116.220-116.221), that is addressed in the following section.

2. Final Judgment on the Merits

“[I]t is well-settled that . . . claim preclusion . . . applies to small claims judgments.” (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 791.) “The judgment of the small claims court bars a subsequent proceeding on the same cause of action.” (Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th 901, 914.) The small claims court entered final judgment on the merits of Joyce’s claims on February 27, 2017. As set forth above, Joyce asserted the same causes of action in this lawsuit. Thus, her claims are barred by the judgment of the small claims court. (Ibid.) We are unpersuaded by Joyce’s arguments to the contrary.

First, Joyce appears to argue that claim preclusion is inapplicable because the small claims court did not address the merits of her claims. However, this is belied by the record, which shows Joyce alleged malpractice and breach of contract claims against defendants, a trial was held on these claims, and judgment was entered following trial. While Joyce generally complains of the summary nature of small claims court, she accepted these procedural limitations when she filed her action there. “A small claims court plaintiff, taking advantage of the speedy, inexpensive procedures and other benefits of that court, accepts all of its attending disadvantages such as the denial of the right to an attorney or to an appeal . . . . ‘If the plaintiff does not feel that he will be benefited by the procedure, he has the alternative of entering the regular jurisdiction of the justice’s court . . . .’” (Cook v. Superior Court of San Mateo County (1969) 274 Cal.App.2d 675, 677-678.)

Second, for natural persons, the jurisdiction of small claims courts is limited to actions seeking $10,000 or less. (§ 116.221.) Joyce argues the small claims court did not have jurisdiction over her case since she “sought over [$64,000] in damages.” But this contention is also contradicted by the record. Joyce only sought $10,000 in her small claims action, the jurisdictional maximum. (Ibid.) Further, she acknowledged it would cost “over $64,000 to repair [the] damage” caused by defendants. The logical inference is that Joyce specifically requested less money so she could file her action in small claims court. Joyce “cannot split a single cause of action and make it the basis of several suits in order to take advantage of small claims court jurisdiction and procedure. [Citation.] By filing her action in small claims court, [she] waived any damages in excess of the court’s jurisdictional limit.” (Allstate Ins. Co. v. Mel Rapton, Inc., supra, 77 Cal.App.4th at pp. 913-914.)

Because we decide this appeal on claim preclusion grounds, we do not address defendants’ statute of limitations arguments.

C. Leave to Amend

Joyce does not offer any argument that leave to amend was wrongly denied. Thus, we treat this argument as waived and find the trial court properly denied leave to amend. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)

III

DISPOSITION

The order is affirmed. Defendants are entitled to their costs on appeal.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.