UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BRYAN SILVA, PH.D., 1:19-cv-00795-LJO-EPG
Plaintiff, ORDER RE DEFENDANT’S MOTION v. TO STRIKE AND DISMISS PLAINTIFF’S COMPLAINT; MOTION DISTRICT, a government entity for the State PLAINTIFF TO POST SECURITY of California, and DOES 1 – 100, inclusive, BEFORE PROCEEDING
(ECF Nos. 7–8) Defendants.
I. INTRODUCTION
Plaintiff Bryan Silva, Ph.D., formerly known as Frank Drummond, Ph.D., raises various state
and potentially federal claims. Defendant Yosemite Community College District filed a motion to
dismiss, motion to strike, and motion for order requiring Plaintiff to post security. Plaintiff requested
the opportunity for discovery. The Court has reviewed the facts and evidence in the record in light of
applicable authorities and only discusses here the facts and arguments that are material and dispositive.
The Court has determined the motion to dismiss, motion to strike, request for discovery, and motion for
order requiring Plaintiff to post security before proceeding are suitable for decision based on the papers
under Local Rule 230(g). For the reasons stated below, Defendant’s motion to dismiss is GRANTED
without leave to amend.
Plaintiff’s Complaint arises from his arrest over ten years ago. Plaintiff is a tenured professor in
the Administration of Criminal Justice Department at Modesto Junior College. See ECF No. 1 ¶ 1. On
August 28, 2009, Plaintiff was arrested at a staff meeting at Modesto Junior College. See id. ¶ 13. On
November 25, 2009, the Stanislaus County District Attorney’s Office charged Plaintiff with certain crimes.1 See ECF No. 8-3, Ex. A at 6–7. Defendant placed Plaintiff on unpaid leave under Education
Code section 87736. See id. ¶ 13. Plaintiff’s criminal trial concluded around April 2015. See id. ¶ 14.
The District Attorney did not re-try the case and subsequently dismissed the criminal charges against
Plaintiff. See id. This action is Plaintiff’s third lawsuit against Defendant.
A. The First Action
Plaintiff, formerly known as Frank Drummond, Ph.D., filed a lawsuit against Defendant in the
Stanislaus County Superior Court on February 13, 2015. See ECF No. 8-3, Ex. B at 8–25 (hereinafter
“First Action”). The First Action appears to cover the period between August 28, 2009 and July 31,
2015 (ongoing). See id. at 36, 38. Plaintiff brought claims for: (1) violation of the California
Government Code; (2) violation of the California Education Code; (3) Section 1983; (4) wrongful
discharge in violation of public policy; (5) “breach of employment contract (wrongful discharge)”; (6)
retaliation2; (7) breach of the implied covenant of good faith and fair dealing; (8) violation of Business
1 Defendant’s Request for Judicial Notice of state court records and documents from the EEOC and California Department of Fair Employment and Housing is granted. ECF No. 19; see Hunt v. Check Recovery Sys. Inc., 478 F. Supp. 2d 1157, 1160–61 (N.D. Cal. 2007) (“Judicial notice may be taken of ‘adjudicative facts’ such as court records [and] pleadings . . . .”). 2 Plaintiff alleged Defendant discharged Plaintiff for opposing discriminatory practices. See ECF No. 8-3 at 18 ¶ 98. Yet in
the same complaint, Plaintiff alleged that Defendant suspended Plaintiff without pay “as a result of the arrest and subsequent
criminal charges.” Id. ¶ 10. He further alleged in the same complaint, “on or about December 14, 2009, after formal criminal
charges were filed against Plaintiff, Defendant then again removed Plaintiff from his teaching position, and terminated his salary and benefi ts, all without a hearing.” Id. ¶ 14. harassment, retaliation, conduct towards and termination of Plaintiff”; (10) negligent infliction of
emotional distress; and (11) “public entity liability: negligence.” See id. at 8–25. On December 30, 2015,
the Stanislaus County Superior Court sustained Defendant’s demurrer to Plaintiff’s First Amended
Complaint for failure to state a cause of action and sustained Defendant’s motion to strike, with the
exception of allowing Plaintiff to amend the complaint only for damages under the Education Code. See
ECF No. 7-4 at 67.
On an unknown date, Plaintiff filed a Second Amended Complaint in the First Action with the
same claims as the original complaint. See ECF No. 8-3, Ex. C at 51. Among other relief, Plaintiff
sought “lost benefits, including but not limited to retirement contributions.” Id. at 50. Plaintiff
specifically alleged he “suffered damages including, deprived of about 5 years of back pay and benefits
between December 14, 2009 through July 31, 2015, including his base salary, additional over-load pay,
retirement contributions and lost increased value therein, medical coverage and expenses, [and] incurred
interest for loans he was forced to take . . . .” Id. at 38.
The summary judgment hearing in the First Action took place on June 12, 2018. See ECF No. 8-
3, Ex. D at 53. On July 20, 2018, the Stanislaus Superior Court granted summary judgment in favor of
Defendant and “against Plaintiff as to the entire action and as to all the claims contained in Plaintiff’s
Complaint.” ECF No. 8-3, Ex. D at 53–54. The Stanislaus Superior Court confirmed its tentative ruling
and attached a copy of the ruling to its order. Id. at 53, 59 (“Defendant has sufficiently demonstrated that
the full amount of compensation owed to Plaintiff has been paid and Plaintiff is unable to establish any
further liability on the part of Defendant.”).
B. The Second Action
While the First Action was ongoing, Plaintiff filed a second lawsuit against Defendant and
another Modesto Junior College professor, Steven Choi, on August 19, 2016. ECF No. 8-3, Ex. E at 64
(hereinafter “Second Action”). The Second Action covers the period between August 28, 2009 and suffered harassment upon his return to work at Modesto Junior College. See generally id. For example,
Plaintiff alleged Defendants “discriminated against him because he was either accused of a crime and/or
now refuses to resign from his position.” ECF No. 8-3, Ex. E ¶ 13. Plaintiff alleged that Defendant
would not restore his position as department chair and averred that the Defendant erroneously stated it
no longer had positions of department chair. See id. Plaintiff also complained that he did not receive his
entitled course load and instead received classes intended to burden him. See id.
In his Second Action, Plaintiff raised causes of action for: (1) assault; (2) harassment; (3)
libel/slander; (4) breach of implied covenant of good faith and fair dealing; (5) intentional infliction of
emotional distress; (6) negligent infliction of emotional distress; (7) negligence; (8) negligent retention
of employee; (9) public entity liability for acts of employees; (10) hostile work environment; and (11)
failure to prevent hostile work environment and harassment. See id. at 64.
On an unknown date, Plaintiff filed a Third Amended Complaint in the Second Action. See ECF
No. 8-3, Ex. F at 95. Plaintiff added a claim for “disparate impact/breach.” Id. Plaintiff asserted that the
“District had an employment practice of misrepresenting to plaintiff the true status of his position, chair
of the department therein, and assignment and preparation of courses by employees.” Id. ¶ 101.
Plaintiff alleged that on “August 18, 2015, plaintiff demanded in writing from the District a full
reinstatement with all benefits and compensation owed to him from the District.” Id. ¶ 52. Plaintiff
further alleged that “as of March 30, 2017, new and additional information has been discovered in a
massive document production by the District in the First Action.” Id. ¶ 56. Plaintiff alleged that
“Defendants made written statements to third parties. 1000+ Documents containing said written
statements are under review, and plaintiff will amend this action when and as specifically discovered
and identified.” Id. ¶ 85. Plaintiff further alleged “Defendants published false statements of fact without
privilege or permission of any sort, consisting of statements that depict plaintiff as an immoral and
unethical individual, grounded in the allegations made against plaintiff as they related to his criminal [were] defamatory and harmed plaintiff’s personal and business reputations,” and that Defendants “acted
with malice and intent to harm plaintiff in his employ.” Id. ¶¶ 92, 95.
Plaintiff contended he “was subjected to unwanted harassing conduct because he was a male and
of age, in the context of criminal charges being dismissed against plaintiff.” ECF No. 8-3 ¶ 173. Plaintiff
claimed that “Defendants, since plaintiff was first reinstated and resumed his faculty position, repeatedly
verbally abused and harassed plaintiff.” Id. ¶ 174. Moreover, Plaintiff alleged “Defendants were
inconsiderate and in violation of California employment laws in their treatment of Plaintiff.” Id. ¶ 175.
Plaintiff also alleged defendants “systematically and repeatedly abused and harassed plaintiff, shunned
and humiliated him [since August 28, 2009].” ECF No. 8-3 ¶ 197. “Defendants were inconsiderate and
in violation of California State and Federal laws in their treatment of Plaintiff.” Id. ¶ 199.
Plaintiff alleged he did not have access to a locked storage room beginning around July 27, 2015,
and again around October 1, 2015. See id. ¶¶ 24, 36. Plaintiff further complained of the dean’s spring
2016 teaching schedule. See id. ¶¶ 25–27. Plaintiff claims that the dean did not collaborate with him in
creating the schedule. See id. ¶ 27. Plaintiff also alleged wrongdoing because he was not able to use the
program’s shooting simulator in his classes. See id. ¶ 38. Plaintiff further alleged that other professors
made equipment requests without Plaintiff’s knowledge. See id. ¶ 39.
On December 22, 2017, the Stanislaus County Superior Court held a hearing for Defendant’s and
Mr. Choi’s demurrers to Plaintiff’s Third Amended Complaint in the Second Action and motion to
strike. See ECF No. 8-3, Ex. G at 129. On January 9, 2018, the Stanislaus Superior Court sustained
without leave to amend Defendant’s demurrer to Plaintiff’s Third Amended Complaint. In its ruling, the
court wrote:
The Court takes judicial notice of the fact that Plaintiff failed to file a timely claim with Defendant . . . pursuant to and as required by the Government Claims Act . . . . Plaintiff
was granted leave to amend his Second Amended Complaint to allege additional facts to excuse his compliance with this requirement and fails to allege such facts in his Third
Amended Complaint. The Court concludes that he is unable to allege such facts. In his ‘continuing violations doctrine’ applies under these circumstances to salvage his causes of action based on discrete acts alleged to have been committed outside the applicable statute of limitations. It does not. Therefore, all of the causes of action alleged in the Third
Amended Complaint are barred. . . . In accordance with the above ruling sustaining Defendants’ Demurrers to Plaintiff’s Third Amended Complaint, JUDGMENT is entered
in favor of the Defendants Yosemite Community College District and Steven Choi.
ECF No. 8-3, Ex. G at 130–31 (emphasis in original).
C. This Case – The Third Action
On January 4, 2019, Plaintiff filed a claim against Defendant pursuant to the California
Government Tort Claims Act. See ECF No. 8-3, Ex. K at 187. On March 13, 2019, Defendant rejected
Plaintiff’s January 4, 2019 claim, instructing Plaintiff that any court action must be filed within six months from the date of the rejection notice.3 See ECF No. 8-3, Ex. L at 198. On June 6, 2019, Plaintiff
filed the instant action—his third lawsuit—against Defendant. See generally ECF No. 1 (hereinafter
“Third Action”). The Third Action appears to cover the time period between August 28, 2009, and May
6, 2019, ongoing. See ECF No. 1 at 16. In his Third Action, Plaintiff raises claims for: (1) harassment;
(2) disparate impact; (3) hostile work environment; (4) failure to prevent harassment, discrimination,
and retaliation; (5) employment discrimination; (6) disparate treatment; (7) tortious interference with
3 Plaintiff initially filed a claim against Defendant pursuant to the California Tort Claims Act on September 29, 2017, which
Defendant rejected as untimely. See ECF No. 8-3, Ex. I at 167; ECF No. 8-3, Ex. J at 183–85. Defendant argues that Plaintiff
filed the January 4, 2019, Government Claim in an effort to sidestep the untimeliness of his September 29, 2017, claim. See ECF No. 8-1 at 19–21. Because this filing requirement does not apply to Federal Civil Rights Act claims or California Fair Employment and Housing Act claims, the Court need not address this argument because this Order primarily focuses on the validity of Plaintiff’s federal claims that would afford this Court’s subject matter jurisdiction. See Felder v. Casey, 487 U.S.
131, 134 (1988); Williams v. Horvath, 16 Cal. 3d 834, 842 (noting in Section 1983 lawsuit: “it is clear that the supremacy
clause will not permit a like abrogation of the perquisites of a federal civil rights litigant.”); Garcia v. L.A. Unified Sch. Dist.,
173 Cal. App. 3d 701, 709–10 (1985) (acknowledging Title VII and FEHA claims not subject to filing requirement of Government Tort Claims Act but finding plaintiff’s claim could not be construed as Title VII claim). declaratory relief. See generally ECF No. 1.
A significant portion of the Third Action comprises near-verbatim allegations from the dismissed
Second Action. The Court will not repeat them all but includes some examples for reference. Compare
Third Action ¶¶ 22, 34 (complaining of locked storage closet in July 2015 and October 2015), with
Third Amended Complaint in Second Action, Ex. F ¶¶ 24, 36 (same); compare Third Action ¶¶ 30–31
(alleging issues regarding Spring 2016 teaching schedule) with Third Amended Complaint in Second
Action, Ex. F ¶¶ 25–27 (same); compare Third Action ¶ 38 (alleging inability to use the program’s
shooting simulator around October 2015) with Third Amended Complaint in Second Action, Ex. F ¶ 38
(same); compare Third Action ¶ 59 (alleging dean refuses to make him department chair) with Third
Amended Complaint in Second Action, Ex. F ¶ 13 (same).
Plaintiff raises a handful of “new” allegations that Plaintiff contends are “new and ongoing
wrongs committed and perpetuated by defendants.” See ECF No. 10 at 1. Among these are: (1) in April
2018, a dean allegedly yelled at Plaintiff with her office door open about contacting the chancellor
regarding the shooting simulator that had not been installed (ECF No. 1 ¶ 48); (2) the dean ignored
Plaintiff’s inquiry about installing a shooting simulator (id. ¶ 49); (3) the dean acknowledged
wrongdoing for yelling at Plaintiff with her door open (id. ¶ 50); (4) the dean admitted the need for a
department lead, which was Plaintiff’s prior role, but that Plaintiff was “not respected” and needed to
earn respect before being assigned as lead (id. ¶ 52); (5) the department sold firearms at an auction
without Plaintiff’s input (id. ¶ 53); (6) Plaintiff’s employee file is “defamatory,” which includes
“criminal related information . . . and omits the numerous awards and accolades earned,” and “would
harm [Plaintiff] should he seek employment elsewhere” (id. ¶ 54); (7) in August 2018, the dean e-mailed
the entire division about “two white male instructors” who had received awards and recognized
Plaintiff’s award on a lobby TV monitor but did not e-mail the division about Plaintiff’s award until a
month later in September 2018 (id. ¶ 55); (8) on Halloween 2018, another faculty member asked away (id. ¶ 56); (9) there was a locked study area that the dean later unlocked for limited periods of time
around fall 2017 (id. ¶ 57); (10) Defendant has not updated Plaintiff’s retirement benefits, which shows
Plaintiff as inactive for the years 2011 to 2015 and Defendant misinforms or ignores Plaintiff’s requests
for payroll information and files (id. ¶ 58); (11) Plaintiff’s spring 2019 schedule had seven classes
instead of eight; (12) on or around May 1, 2019, the dean created a new section for a heavily waitlisted
class and appointed another professor to teach that section despite Plaintiff’s senior faculty status and
that Plaintiff recruited students for the class; and (13) Plaintiff has not been paid for contracted courses
and “[i]nterest owed for the time of unpaid administrative [leave] . . . .” Id. ¶ 63.
D. The Motions
Defendant filed a motion to dismiss Plaintiff’s previously adjudicated claims under Federal Rule
of Civil Procedure 12(b)(6) and a motion to strike under Rule 12(f). See ECF No. 8-1 at 7 n.16.
Defendant requests the Court to “strike or dismiss all of the barred allegations and claims thereon, and
dismiss all of Plaintiff’s claims to the extent they are based on the ‘new’ allegations.” Id. Defendant also
filed a motion for order requiring Plaintiff to post security before proceeding. See generally ECF No. 7-
1. Plaintiff avers that he is entitled to discovery if the Court considers material outside of the pleadings
on a Rule 12(b)(6) motion. See ECF No. 10 at 10.
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the Plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual than labels and conclusions.” Twombly, 550 U.S. at 555 (internal citations omitted). Thus, “bare
assertions... amount[ing] to nothing more than a ‘formulaic recitation of the elements’... are not entitled
to be assumed true.” Iqbal, 556 U.S. at 681. “[T]o be entitled to the presumption of truth, allegations in
a complaint ... must contain sufficient allegations of underlying facts to give fair notice and to enable
the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In
practice, “a complaint...must contain either direct or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562.
For purposes of dismissal under Rule 12(b)(6), the court generally considers only allegations
contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial
notice, and construes all well-pleaded material factual allegations in the light most favorable to the
nonmoving party. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); Swartz v. KPMG LLP, 476
F.3d 756, 763 (9th Cir. 2007) (per curiam). Res judicata may properly be raised in a Rule 12(b)(6)
motion to dismiss based upon the court taking judicial notice of the record in the prior case where no
disputed issues of fact appear. See Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984).
Plaintiff raises a garden variety of state law claims and claims that could conceivably be considered federal claims.4 The Court limits its analysis to claims that potentially raise federal questions.
4 Plaintiff does not state the basis for this Court’s jurisdiction in his complaint. See generally ECF No. 1 ¶ 11 (alleging why venue is proper). There is no basis for diversity jurisdiction because Plaintiff is a California resident and Defendant’s
principal place of business is in California. See id. ¶¶ 1–2. Plaintiff does not cite any federal statute as the basis for federal
jurisdiction. See generally id. The closest Plaintiff gets to federal question is: “Defendants were inconsiderate and in violation
of California State and Federal laws in their treatment of Plaintiff.” Id. ¶ 134. Plaintiff cites as the basis for his employment discrimination cl aim “Title XII.” Id. at 27. While the Court does not recognize “Title XII,” the Court will nevertheless not address the remaining state law claims.
A. Res Judicata
A federal court must give a state court judgment the same preclusive effect that it would be given
under the law of the state in which judgment was entered. See Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 81 (1984); Fowler v. Guerin, 899 F.3d 1112, 1119 (9th Cir. 2018). Plaintiff filed the
First and Second Actions in California state court. Therefore, this Court will look to California law to
determine whether Plaintiff’s claims are precluded.
California law defines two main forms of preclusion: res judicata (claim preclusion) and issue
preclusion (collateral estoppel). See Rodriguez v. City of San Jose, 930 F.3d 1123, 1130 (9th Cir. 2019).
Under California’s claim preclusion doctrine, “a valid, final judgment on the merits precludes parties or
their privies from relitigating the same ‘cause of action’ in a subsequent suit.” San Diego Police
Officers’ Ass’n v. San Diego City Emps.’ Ret. Sys., 568 F.3d 725, 734 (9th Cir. 2009) (internal citations
omitted). California’s claim preclusion doctrine is based on a primary rights theory. See id.; Reyes v.
Kaiser Permanente, 782 F. App’x 605, 606 (9th Cir. 2019). In other words, “if two actions involve the
same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake
even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of
assume that Plaintiff meant Title VII of the Civil Rights Act of 1964. Id.; see also Levy v. Primerica, Inc., No. 5:16-cv- 01254, 2016 WL 1698028, *2 (N.D. Cal. Apr. 28, 2016) (analyzing plaintiff’s “Title XII” employment discrimination claim under Title VII and dismissing because persons with criminal records are not members of protected class). Plaintiff’s claims
for “harassment,” “disparate impact,” and “hostile work environment” could conceivably serve as the bases for federal court
jurisdiction despite Plaintiff’s allegations that “Defendants were inconsiderate and in violation of California employment
laws in their treatment of Plaintiff.” Id. ¶¶ 69, 90, 111 (emphasis added). Plaintiff cites no basis—federal or state—for his “disparate treatm ent” claim. Id. ¶¶ 160–64. 1174–75 (1983) (quoting Slater v. Blackwood, 15 Cal. 3d 791, 795 (1975)). A “primary right” is defined
as the “right to be free from the particular unlawful conduct.” Clark, 785 F.2d 781, 784 (9th Cir. 1986).
Three requirements must be met for claim preclusion to apply: (1) there must have been a final
judgment on the merits in the prior case; (2) the prior case involved the same parties or parties in privity;
and (3) the second lawsuit must involve the same “cause of action” as the first one. See San Diego
Police Officers’ Ass’n, 568 F.3d at 734; Boeken v. Philip Morris USA, Inc., 48 Cal. 4th 788, 797 (2010).
The doctrine of res judicata provides that “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” The application of this
doctrine is “central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdiction.” Moreover, a rule precluding
parties from the contestation of matters already fully and fairly litigated “conserves judicial resources” and “fosters reliance on judicial action by minimizing the possibility of
inconsistent decisions.”
In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997) (quoting Montana v. United States, 440 U.S. 147,
153 (1979)); see also Clements v. Airport Auth., 69 F.3d 321, 330 (9th Cir. 1995) (“Preclusion doctrine
encompasses vindication of both public and private interests. The private values protected include
shielding litigants from the burden of re-litigating identical issues with the same party, and vindicating
private parties’ interest in repose. The public interests served include avoiding inconsistent results and
preserving judicial economy.”).
Defendant argues that each of the factual allegations in paragraphs twelve through forty-seven is
substantively identical to allegations in Plaintiff’s Second Action. See ECF No. 8-1 at 8. Therefore, as
Defendant argues, “[a]ny claim that arises from those facts that have already been or should have been
adjudicated (in this case, all of Plaintiff’s claims) must be barred under the doctrines of res judicata
(claim preclusion) and collateral estoppel (issue preclusion).” The Court agrees that claim preclusion
bars much of the present action. As to the remaining potentially federal claims, Plaintiff’s “new”
allegations do not set forth facts that are material to any viable claim.
There was a final judgment on the merits in the Second Action. See ECF No. 8-3, Ex. G at 129.
On January 9, 2018, the Stanislaus Superior Court sustained without leave to amend Defendant’s
demurrer to Plaintiff’s Third Amended Complaint. See id. The Superior Court took judicial notice of the
fact that Plaintiff failed to timely file a claim required by the Government Claims Act, rejecting
Plaintiff’s argument that the “continuing violations” doctrine salvaged his causes of action based on
“discrete acts alleged to have been committed outside the applicable statute of limitations.” See id. Thus,
the superior court held all the causes of action in Plaintiff’s Third Amended Complaint were time
barred. See id.
“The Supreme Court has unambiguously stated that a dismissal on statute of limitations grounds
is a judgment on the merits.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning
Agency, 322 F.3d 1064, 1081 (9th Cir. 2003) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228
(1995)). “[F]or purposes of applying the doctrine of res judicata . . . a dismissal with prejudice is the
equivalent of a final judgment on the merits, barring the entire cause of action.” Boeken, 48 Cal.4th at
793. Therefore, because the Stanislaus County Superior Court held that Plaintiff’s causes of action in his
Third Amended Complaint were time barred and sustained Defendant’s demurrer without leave to
amend, there was a final judgment on the merits.
2. Same Parties
The First and Second Actions involved the Plaintiff and Defendant. See generally ECF No. 8-3,
Exs. C & F. While Plaintiff argues that the Second Action included one additional defendant, Steven
Choi, this does not change the fact that both Plaintiff and Defendant in this case were parties to the prior
action. See Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 711, 713 (9th Cir. 2001) (noting
same parties involved in both actions where same two plaintiffs sued hospital, hospital supervisors, and
union in first action and only sued hospital in second action). Therefore, this Court finds the same
parties are involved in the First, Second, and Third Actions. a. Paragraphs 12 through 47 of the Third Action
All allegations from the First, Second, and Third Actions stem from Plaintiff’s August 28, 2009
arrest. See ECF No. 10 at 2, 5 (Plaintiff states “[t]here is no doubt that plaintiff has brought prior actions
against this defendant, it is not denied and clearly a matter of which the court takes judicial notice” and
the prior allegations are “provided as background to the long history of harassment and discrimination
suffered by plaintiff”). Paragraphs 12 through 47 of the Third Action are virtually identical to allegations
from the Second Action. See generally ECF No. 1 ¶¶ 12–47; ECF No. 8-3, Ex. F.
Because the Stanislaus County Superior Court dismissed every cause of action with prejudice in
Plaintiff’s Third Amended Complaint in the Second Action, this Court need not re-consider these
duplicative allegations in this Third Action. See San Diego Police Officers’ Ass’n, 568 F.3d at 734 (“a
valid, final judgment on the merits precludes parties or their privies from relitigating the same ‘cause of
action’ in a subsequent suit.”) Plaintiff had his chance to litigate his claims for harassment; disparate
impact; hostile work environment; failure to prevent harassment, discrimination, and retaliation; and
disparate treatment. He also had the opportunity to assert his employment discrimination claim based on
the same facts but did not. Therefore, res judicata bars Plaintiff’s allegations in paragraphs 12 through
47 of the Complaint.
b. “New” Allegations
Plaintiff raises “new” allegations he contends represent “new and ongoing wrongs committed
and perpetrated by defendants.” ECF No. 10 at 1. These “new” allegations, however, are insufficient to
avoid application of res judicata. Courts have rejected claims under res judicata where plaintiffs raise
“new” allegations with different dates from the prior action, yet are factually similar to previously
litigated claims. See Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 558 (9th Cir. 2003);
Misischia v. St. John’s Mercy Health Sys., 457 F.3d 800, 802–03, 805 (8th Cir. 2006); Yagman v.
Garcetti, No. 2:16-cv-05944, 2017 WL 2115814, *1–2, *4 (C.D. Cal. May 2, 2017). Courts have course of conduct in previously litigated claims, application of res judicata is proper. See Misischia, 457
F.3d at 805; Dubuc v. Green Oak Twp., 312 F.3d 736, 751 (6th Cir. 2002); see also Clark v. Yosemite
Community College District, 785 F.2d 781, 787, 789 (9th Cir. 1986).
In Misischia v. St. John’s Mercy Health Systems, the Eighth Circuit held that res judicata barred
a doctor’s claims against his former employers who terminated him following reports of inappropriate
patient contacts. See Misischia, 457 F.3d at 802–03, 805. The doctor filed a state court lawsuit against
the hospital alleging various state tort claims, asserting that defendants’ actions of suspending,
terminating, and preparing an adverse report on him referencing a psychiatric evaluation, were
retaliation for the doctor’s whistleblowing efforts. See id. The trial court held the hospital was immune
from suit and the appellate court affirmed in 2000. See id. at 803. In 2001, the doctor requested the
hospital to remove any reference that he underwent a psychiatric evaluation in its report. See id. The
hospital agreed, conditioned upon the doctor’s payment for costs of suit. See id. The doctor sued the
hospital again, but the District of Columbia District Court dismissed the suit as time-barred. See id. The
doctor filed another action against the hospital in the Eastern District of Missouri District Court for
Racketeer Influenced and Corrupt Organizations Act (RICO) and civil conspiracy claims, describing
“every aspect of the parties’ dispute from [the first lawsuit] and then allege[d] ‘various adverse
professional incidents’ involving other physicians” at the hospital. See id. at 803. The RICO cause of
action relied upon numerous events that occurred in the mid-1990s as well as three “extortionate” letters
exchanged with counsel for defendants in 2001 and 2002, leading to the doctor’s payment of costs in
2001. Id. at 805.
The doctor attempted to avoid application of res judicata to his RICO claim by asserting that the
claim could not have been brought earlier because the pattern of racketeering activity was not sufficient
to state a claim until the new allegations were added in. Id. at 804. The Eighth Circuit rejected this
argument, reasoning that acts occurring after the 2000 appellate court judgment, including the hospital’s that led to the initial lawsuit. Because it was the earlier conduct that “caused the bulk” of the doctor’s
injuries, the new allegations added “little if anything to his RICO claims.” Id. at 805. Therefore, whether
or not sound, the RICO claims could have been raised in October 1994.” Id. “The doctrine of res
judicata would become meaningless if a party could relitigate the same issue . . . merely by positing a
few additional facts that occurred after the initial suit.” Misischia, 457 F.3d at 805 (three “extortionate”
letters from 2001 and 2002 were so unrelated to events of 1993 and 1994 as to add nothing to the
showing that the earlier acts reflected “a threat of continued racketeering activity,” the prerequisite of a
RICO claim) (emphasis added).
Other courts have likewise rejected plaintiffs’ attempts to introduce “new” facts to avoid the res
judicata bar. In Yagman v. Garcetti, the Central District of California rejected a plaintiff’s third lawsuit
regarding the issuance of parking tickets despite the latest parking ticket issued while the first two
lawsuits were on appeal. See Yagman, 2017 WL 2115814, at *1–2. The Yagman plaintiff stated that the
latest ticket was part of the same alleged conspiracy and unconstitutional system that formed the basis
for the prior two lawsuits. See id. at *4. The district court reasoned if “Plaintiff were permitted to renew
the same challenge every time he receives a new parking ticket, it would be in direct conflict with the
principles of res judicata.” Id.; see also Scott v. Donahoe, No. 2:13-cv-03927, 2014 WL 4180961, at *5–
8 (“Plaintiff cannot relitigate his claims by simply alleging a few additional facts” in fourth lawsuit
stemming from same shoulder injury and including claims identical to those in prior three lawsuits); see
also Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 558 (9th Cir. 2003) (“There is no new
claim; instead there is a new fact supporting an old claim. ‘An action that merely alleges new facts in
support of a claim that has gone to judgment in a previous litigation will be subject to claim
preclusion.’”); Boeken, 48 Cal. 4th at 798 (holding res judicata barred wife’s wrongful death action
against tobacco company after husband passed away because wife’s prior loss of consortium action
(while husband was alive) involving same primary right, including loss of companionship and affection, also Clark v. Yosemite Community College District, 785 F.2d 781, 787, 789 (9th Cir. 1986) (dismissing
federal claims alleging same causes of action as previously adjudicated state court suit, but allowing
matter to proceed based on new conduct where prior lawsuit lacked sufficient factual record to
determine “whether new facts or conditions have intervened”); Dubuc v. Green Oak Twp., 312 F.3d 736,
751 (6th Cir. 2002) (“When, as here, it is obvious that the alleged ongoing retaliation is actually the
defendant continuing on the same course of conduct, which has previously been found by a court to be
proper, a subsequent court must conclude that the plaintiff is simply trying to relitigate the same
claim.”).
Guided by these principles, the Court will examine each of Plaintiff’s “new” allegations from the
Third Action.
(1) Yelling at Plaintiff
In April 2018, the dean allegedly yelled at Plaintiff with her office door open about contacting
the chancellor regarding the shooting simulator that had not been installed. See ECF No. 1 ¶ 48. Plaintiff
later alleges the dean acknowledged wrongdoing for yelling at Plaintiff with her door open. See id. ¶ 50.
Yelling does not rise to the level of an adverse employment action. See Yanowitz v. L’Oreal USA, Inc.,
36 Cal. 4th 1028, 1052 (2005) (holding adverse employment action must materially affect the terms,
conditions, or privileges of employment to be actionable). Therefore, this “new” fact is not material to
any viable claim.
(2) Installation of Shooting Simulator
Plaintiff alleges that “[a]s of September 9, 2018, [Plaintiff’s] inquiry with [the dean] about
installing a shooting simulator in a classroom was ignored.” Id. ¶ 49. Plaintiff previously complained
about not having access to the program’s shooting simulator in his Second Action. See ECF No. 8-3, Ex.
F ¶¶ 33, 38, 42. Therefore, Plaintiff’s “new” allegation is no more than an extension of his prior claims.
See Gospel Missions of Am., 328 F.3d at 558. Plaintiff alleges the dean admitted the need for a department chair, which was Plaintiff’s prior
role, but that Plaintiff was “not respected” and needed to earn respect before being assigned as lead. See
id. ¶ 52. In his Second Action, Plaintiff previously alleged Defendant engaged in wrongdoing because he
was entitled to be restored as department chair. See id. ¶¶ 13, 20, 28, 47, 101. Therefore, res judicata
bars Plaintiff’s attempt to raise “new” claims relating to the department chair position. See Gospel
Missions of Am., 328 F.3d at 558.
(4) Selling Firearms Without Plaintiff’s Input
Plaintiff claims he was harmed because the department sold firearms at an auction without
Plaintiff’s input on an unspecified date. See ECF No. 1 ¶ 53. Plaintiff contends this decision should have
been made by the department lead, which was his position. See id. “The equipment was neglected and
damaged, putting [Plaintiff] at risk of blame; another set up.” Id. The Complaint does not provide any
indication as to when this “new” fact occurred. See generally ECF No. 1. Assuming it occurred after the
Second Action concluded, this allegation does not rise to the level of an adverse employment action. See
Yanowitz, 36 Cal. 4th at 1052. Therefore, this “new” fact is not material to any viable claim.
This allegation is also related to Plaintiff’s allegation in the Second Action, claiming that
department professors failed to inform Plaintiff of a $7,300 purchase for program equipment. See ECF
No. 8-3, Ex. F ¶ 39. Therefore, Plaintiff’s “new” allegation is no more than an extension of his
previously litigated claim. See Gospel Missions of Am., 328 F.3d at 558.
(5) Defamatory Employee File
Plaintiff claims his employee file is “defamatory,” which includes “criminal related information .
. . and omits the numerous awards and accolades earned,” and “would harm [Plaintiff] should he seek
employment elsewhere.” ECF No. 1 ¶ 54. Plaintiff’s Second Action similarly included a claim for libel
or slander. See ECF No. 8-3, Ex. F ¶¶ 81–97. In his Second Action, Plaintiff alleged “Defendants
published false statements of fact without privilege or permission of any sort, consisting of statements plaintiff as they related to his criminal matter, though he successfully defended said matter.” Id. ¶ 87.
Plaintiff asserted that the “statements [were] defamatory and harmed plaintiff’s personal and business
reputations,” and that Defendants “acted with malice and intent to harm plaintiff in his employ.” Id. ¶¶
92, 95. After alleging he received “1000+ Documents containing said written statements,” Plaintiff
stated he would “amend [the Second Action] when and as specifically discovered and identified.” Id. ¶
85. Therefore, Plaintiff’s “new” allegation regarding his defamatory employee file is merely an
extension of his previously litigated claims. See Gospel Missions of Am., 328 F.3d at 558.
(6) Publicizing Plaintiff’s Award
During spring 2018, Plaintiff received the Leading, Inspiring, and Fostering Education award
from department students. See ECF No. 1 ¶ 55. Plaintiff asked the dean to inform the division that he
won the award. See id. In August 2018, the dean e-mailed the entire division about “two white male
instructors” who had received awards after Plaintiff, but posted Plaintiff’s award on a lobby TV monitor.
See id. The dean eventually e-mailed the division about Plaintiff’s award in September 2018. See ECF
No. 1 ¶ 55. This allegation does not rise to the level of an adverse employment action. See Yanowitz, 36
Cal. 4th at 1052. Thus, this “new” fact is not material to any viable claim.
(7) Halloween 2018
On Halloween 2018, another faculty member asked Plaintiff “what the fuck is this?” in reference
to Plaintiff’s costume as a “military dude” and then walked away. See ECF No. 1 ¶ 56. This allegation
does not rise to the level of an adverse employment action. See Thomas v. Dep’t of Corrections, 77 Cal.
App. 4th 507, 511–12 (2000) (finding no adverse employment action where claims involved one-time
events without facts evidencing substantial and detrimental effect on employment). Therefore, this
“new” fact is not material to any viable claim.
//
// Plaintiff alleges there was a locked study area that the dean later unlocked for limited periods of
time around fall 2017. See ECF No. 1 ¶ 57. Having a locked study area does not rise to the level of an
adverse employment action. See Yanowitz, 36 Cal. 4th at 1052. Accordingly, this “new” fact is not
material to any viable claim.
(9) Retirement Benefits
Plaintiff claims Defendant has not updated Plaintiff’s retirement benefits, which shows Plaintiff
as inactive for the years 2011 to 2015 and Defendant misinforms or ignores Plaintiff’s requests for
payroll information and files. See ECF No. 1 ¶ 58. Plaintiff’s First Action, which included Plaintiff’s
claims for backpay and retirement benefits, concluded in 2018. See ECF No. 8-3, Ex. D at 53–54. The
Stanislaus Superior Court granted summary judgment in favor of Defendant and “against Plaintiff as to
the entire action and as to all the claims contained in Plaintiff’s Complaint.” Id. The superior court
attached its tentative ruling, which stated “Defendant has sufficiently demonstrated that the full amount
of compensation owed to Plaintiff has been paid and Plaintiff is unable to establish any further liability
on the part of Defendant.” Id. at 53, 59. Therefore, Plaintiff’s “new” allegation regarding his retirement
benefits showing him as inactive between 2011 to 2015 was the subject of the First Action. Accordingly,
res judicata bars Plaintiff’s claim. See Gospel Missions of Am., 328 F.3d at 558 (“There is no new claim;
instead there is a new fact supporting an old claim. ‘An action that merely alleges new facts in support
of a claim that has gone to judgment in a previous litigation will be subject to claim preclusion.’”).
(10) Plaintiff’s Course Load
Plaintiff alleges his spring 2019 schedule had seven classes instead of eight. See ECF No. 1 ¶ 59.
He further alleges that on or around May 1, 2019, the dean created a new section for a heavily waitlisted
class and appointed another professor to teach that section despite Plaintiff’s senior faculty status and
that Plaintiff recruited students for the class. See id. ¶ 61. Plaintiff’s Second Action also contained
complaints regarding his prior class schedules as being either overburdensome or not being assigned as “new” allegation regarding his course load is no more than an extension of his prior claims. See Scott,
2014 WL 4180961, at *5–8 (“Plaintiff cannot relitigate his claims by simply alleging a few additional
facts” in fourth lawsuit stemming from same shoulder injury and including claims identical to those in
prior three lawsuits).
(11) Unpaid Courses and Administrative Leave
Plaintiff alleges he has not been paid for contracted courses and “[i]nterest owed for the time of
unpaid administrative [leave] . . . .” Id. ¶ 63. He does not explain what courses he has not been paid for.
As discussed above, Plaintiff’s claim relating to the time he was on administrative leave has already
been resolved. See ECF No. 8-3, Ex. D at 53–54, 59. Thus, Plaintiff’s “new” allegation regarding his
unpaid administrative leave is barred by res judicata. See Gospel Missions of Am., 328 F.3d at 558.
Overall, Plaintiff’s “new” allegations are insufficient to surpass the res judicata bar, or otherwise
do not set forth facts that would be material to any viable federal claim. Accordingly, Defendant’s
motion to dismiss Plaintiff’s Complaint is GRANTED.
B. Plaintiff’s Request for Discovery
Plaintiff asserts that he is entitled to discovery before dismissal because the Court cannot look
outside the pleadings on a Rule 12(b)(6) motion without converting it into a summary judgment motion
and provides parties with time for discovery. See ECF No. 10 at 9–10. As discussed above, the Court has
taken judicial notice of prior state court and administrative filings to determine whether res judicata
applies. See Hunt, 478 F. Supp. 2d at 1160–61 (“Judicial notice may be taken of ‘adjudicative facts’
such as court records [and] pleadings . . . .”). Indeed, Plaintiff concedes “[t]here is no doubt that plaintiff
has brought prior actions against this defendant, it is not denied and clearly a matter of which the court
takes judicial notice . . . .” ECF No. 10 at 1–2. Therefore, Plaintiff’s request for discovery is DENIED.
//
// Plaintiff requests in nearly every section of his opposition for the Court to grant leave to amend.
See generally ECF No. 10. Nowhere in each request explains how amendment would cure the numerous
deficiencies. While leave to amend generally is granted liberally, the Court has discretion to dismiss a
claim without leave to amend if amendment would be futile. See Reyes v. Kaiser Permanente, 782 F.
App’x 605, 606 (9th Cir. 2019) (dismissing claims barred by res judicata and holding amendment would
be futile); Rivera v. BAC Home Loans Servicing, L.P., 756 F. Supp. 2d 1193, 1197 (N.D. Cal. 2010)
(citing Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996)); Dommisse v. Napolitano, 474 F. Supp. 2d
1121, 1129 (D. Ariz. 2007) (“Because of res judicata, this is a case where no amendment can cure the
defects”). Accordingly, the Court finds leave to amend is not warranted and dismisses Plaintiff’s
Complaint with prejudice. Therefore, Defendant’s motion for order requiring Plaintiff to post security is
DENIED as moot.
D. Supplemental Jurisdiction
“[D]istrict courts may decline to exercise supplemental jurisdiction over a claim . . . if the district
court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “[I]n the
usual case in which all federal-law claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine – judicial economy, convenience, fairness, and
comity – will point toward declining to exercise jurisdiction over the remaining state-law claims.”
Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (quoting Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7 (1988)); see also Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1196
(9th Cir. 2016) (“No motion, timely or otherwise, is necessary: ultimate responsibility to ensure
jurisdiction lies with the district court.”). As all federal claims have been dismissed, the Court declines
to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims.
//
// Based on the foregoing:
1. Defendant’s motion to dismiss is GRANTED with prejudice.
2. Defendant’s motion to strike is DENIED as moot.
3. Plaintiff’s request for discovery is DENIED.
4. Defendant’s motion for order requiring Plaintiff to post security is DENIED as moot.
The Clerk of the Court is directed to CLOSE this case.
Dated: December 16, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE