Filed 9/13/16 Keller v. City of Roseville CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




RICHARD W. KELLER,

                   Plaintiff and Appellant,                                                  C078746

         v.                                                                      (Super. Ct. No. SCV35075)

CITY OF ROSEVILLE et al.,

                   Defendants and Respondents.


         In a prior appeal, we affirmed the trial court’s dismissal of a writ petition filed by
Richard W. Keller to challenge a determination by the City of Roseville (City) that
Keller’s competitors in the automobile towing business were in compliance with the
City’s zoning laws. (Keller v. City of Roseville (April 4, 2014, C072379) [nonpub. opn.]
(Keller I).) We affirmed on grounds that (1) Keller lacked standing to challenge the
application of the City’s zoning laws to his competitors, (2) the public interest exception
did not provide him with an exception to standing requirements, and (3) he forfeited a




                                                             1
taxpayer lawsuit claim that the City engaged in illegal expenditures or wasted public
resources. (Keller I, supra, C072379.)
       After the California Supreme Court denied the petition for review in Keller I,
Keller filed a new petition for writ of mandate in the superior court. As in Keller I,
the new petition reiterated Keller’s contentions the City had erred in its zoning
determinations for Keller’s competitors. For ease of reference, we refer to the
new petition as Keller II. The City demurred to the petition on grounds the claims
were barred by res judicata, and the trial court sustained the demurrer without leave
to amend.
       On appeal, Keller contends (1) his new petition states viable causes of action the
trial court should not have dismissed, (2) res judicata does not apply because the two
action differ in that Keller I was a petition for writ of administrative mandamus and
Keller II is a petition for a writ of ordinary mandamus, (3) Keller I was not decided on
the merits and therefore has no preclusive effect on Keller II, (4) the public interest
exception bars the application of res judicata, (5) his first three causes of action were not
barred by the 90-day statute of limitations imposed by Government Code section 65009,
(6) there is an actual controversy warranting declaratory relief, and (7) the trial court
erred in denying an injunction prohibiting the City from paying privately retained legal
counsel to defend against Keller’s action.
       We conclude res judicata bars Keller’s present action that focuses on the
same zoning determinations as in Keller I. Accordingly, we affirm the judgment
of dismissal.
                                      BACKGROUND
                                           Keller I
       In setting forth the background of Keller I, we draw upon our prior unpublished
decision. (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180


                                              2
Cal.App.4th 210, 225 (Planning & Conservation League).) In Keller I, this court
recounted that “Keller alleged he received notice in 2008 that the City’s police
department was instituting a lottery system to select which tow companies would be
allowed to participate in the City’s tow rotation program. In response, Keller asked the
City to investigate whether several of his competitors were operating in violation of
applicable zoning laws. Keller also urged the City’s planning department to eliminate the
lottery program and ‘just implement the laws already set forth in the Zoning Ordinance
and [the City’s tow service agreement].’ The planning department responded that all
towing companies participating in the lottery either had a conditional use permit or were
legal nonconforming within their zones. Keller challenged the planning department’s
determination of compliance by his competitors before the city council. Ultimately, the
city council determined all of the challenged towing companies were operating in
compliance with the zoning laws.
       “Keller filed his writ petition in superior court. The petition alleged Keller has
standing on grounds ‘he has suffered financial harm in the uneven playing field of
competition that he has been forced to play in and will continue to suffer as a result of’
the City’s determinations that competitor towing companies were in compliance with the
City’s zoning codes. Keller asserted he had a ‘beneficial interest’ sufficient to give him
standing to file the petition based on his status as ‘a vested property owner in the City.’
Specifically, he challenged the City’s determination of zoning compliant use by Sierra
Hart Towing, Ace in the Hole Towing, Anderson Tow Service, Jake’s Tow Service, and
LJ’s Auto Towing and Repair.
       “The City opposed the petition and argued, inter alia, that Keller lacked standing
to pursue his claims.
       “The trial court concluded Keller lacked standing to pursue his claims.
Additionally, the court found substantial evidence supported the City’s determination that


                                              3
all challenged towing businesses were operating impound yards in compliance with the
City’s zoning laws.” (Keller I, supra, C072379.) Keller appealed.
       We affirmed on grounds Keller lacked standing, the public interest exception did
not apply, and he had forfeited a claim that “the City has engaged in illegal expenditures
or waste of public resources.” (Keller I, supra, C072379.) Keller filed a petition for
review that the California Supreme Court denied on July 16, 2014.
                                          Keller II
       Two months after the California Supreme Court denied review, Keller filed a new
petition for ordinary mandamus in Keller II. The petition in Keller II challenged the
City’s “decision to determine five tow companies and three property owners, to be [in]
legal nonconforming” use of their property under the City’s zoning laws. The petition
focuses on the same determinations made by the City that were the subject of the
challenge in Keller I, supra, C072379, i.e., finding legal nonconforming property use by
Sierra Hart Towing, Ace in the Hole Towing, Anderson Tow Service, Jake’s Tow
Service, and LJ’s Auto Towing and Repair. With this focus, Keller alleged (1) violations
of the City’s zoning ordinance, (2) violations of the California Constitution and statutes,
(3) violations of ministerial duties, (4) entitlement to declaratory relief regarding the
application of the zoning laws, and (5) injunctive relief to restrain the City from paying
for privately retained legal counsel.
       The City filed a demurrer that the trial court sustained without leave to amend.
The trial court found res judicata barred Keller’s new action, the statute of limitations
imposed by Government Code section 65009 barred his first three causes of action, he
had not pled facts warranting declaratory relief, and his claim the City could not retain
counsel to defend itself “borders on the absurd.” From the judgment of dismissal, Keller
timely filed a notice of appeal.




                                              4
                                        DISCUSSION
       Keller argues his present action is not precluded by his prior litigation. We
disagree.
                                               A.
                                     Standard of Review
       In light of the City’s contention that the entirety of Keller’s present action is
barred by principles of res judicata, “our review follows established principles. ‘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. [Citation.] In ruling on a demurrer based on res judicata, a court may take
judicial notice of the official acts or records of any court in this state. [Citations].’
(Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.)” (Planning
and Conservation League, supra, 180 Cal.App.4th at p. 225.) “In addressing the
demurrers, the trial court was obliged to determine whether the petition[] stated a cause
of action, accepting as true all material facts properly pleaded in the petition[], and
disregarding conclusions of law and allegations contrary to judicially noticed facts. (Burt
v. County of Orange (2004) 120 Cal.App.4th 273, 277.) We examine the trial court’s
determinations on this matter de novo, applying the same principles. (See id. at p. 279.)”
(Planning and Conservation League, supra, at pp. 225-226.)
                                               B.
                                      Claim Preclusion
       As the California Supreme Court has explained, “ ‘Res judicata’ describes the
preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion,
prevents relitigation of the same cause of action in a second suit between the same parties
or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes
relitigation of issues argued and decided in prior proceedings.’ (Lucido v. Superior Court


                                               5
(1990) 51 Cal.3d 335, 341.) Under the doctrine of res judicata, if a plaintiff prevails in an
action, the cause is merged into the judgment and may not be asserted in a subsequent
lawsuit; a judgment for the defendant serves as a bar to further litigation of the same
cause of action.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897
(Mycogen Corp.), fn. omitted.)
       To determine whether a claim is precluded, California courts follow the primary
right theory. (Mycogen Corp., supra, 28 Cal.4th at p. 904.) “ ‘The primary right theory .
. . provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a
corresponding “primary duty” of the defendant, and a wrongful act by the defendant
constituting a breach of that duty. [Citation.] The most salient characteristic of a primary
right is that it is indivisible: the violation of a single primary right gives rise to but a
single cause of action. [Citation.] . . . [¶] ‘As far as its content is concerned, the
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.” [Citation.] [¶] ‘The primary
right theory . . . is invoked . . . when a plaintiff attempts to divide a primary right and
enforce it in two suits. The theory prevents this result by either of two means: (1) if the
first suit is still pending when the second is filed, the defendant in the second suit may
plead that fact in abatement [citations]; or (2) if the first suit has terminated in a judgment
on the merits adverse to the plaintiff, the defendant in the second suit may set up that




                                                6
judgment as a bar under the principles of res judicata.’ ” (Mycogen Corp., at p. 904,
quoting Crowley v. Katleman (1994) 8 Cal.4th 666, 681–682.)
                                            B.
                        The Present Action is Barred by Keller I
       The primary right Keller seeks to vindicate in this action -- to have his towing
company competitors declared to be in violation of the City’s zoning laws -- is the same
as in Keller I. Both Keller I and Keller II focus on the same zoning determinations made
by the City as to Sierra Hart Towing, Ace in the Hole Towing, Anderson Tow Service,
Jake’s Tow Service, and LJ’s Auto Towing and Repair. In addition, the parties in Keller
I and Keller II are the same. And Keller sought the same relief in both actions: to set
aside the City’s determination Keller’s business competitors were operating lawfully
under the zoning code. Consequently, claim preclusion applies to bar Keller’s present
action. (Mycogen Corp., supra, 28 Cal.4th at pp. 896-897.)
       Keller argues the claims are not the same because Keller I involved a petition for
administrative mandamus (Code Civ. Proc., § 1094.5) and Keller II is based on a petition
for ordinary mandamus (Code Civ. Proc., § 1085). We reject the argument because the
procedural vehicle does not determine whether reasserted claims are barred by res
judicata. Instead, as the California Supreme Court has explained, the test for the
applicability of res judicata focuses on the primary right asserted. (Mycogen Corp.,
supra, 28 Cal.4th at p. 904.) The primary right asserted in Keller I was the right to have
the City’s zoning laws enforced against Sierra Hart Towing, Ace in the Hole Towing,
Anderson Tow Service, Jake’s Tow Service, and LJ’s Auto Towing and Repair. (Keller
I, supra, C072379.) Keller II focuses on the same primary right by repeating claims the
City erred in determining legal nonconforming property use by the same business
competitors. That Keller’s current action proceeds by ordinary mandamus rather than by




                                             7
administrative mandamus does not change the fact both Keller I and Keller II involve the
same primary right.
       Keller contends claim preclusion does not apply because the issues raised in Keller
I were not decided on the merits. In Keller’s view, our prior decision he lacked standing
to assert zoning violations regarding his business competitors left all of his claims
unresolved so he could reassert them in Keller II. We reject the contention. As this court
has previously held, “Claim preclusion bars a second action upon the same claim against
the same parties litigated to a final judgment in a prior action.” (Burdette v. Carrier
Corp. (2008) 158 Cal.App.4th 1668, 1674.) In Keller I, Keller actually litigated his
claims regarding the City’s erroneous zoning determinations to a judgment. (Keller I,
supra, C072379.) The trial court in Keller I found Keller lacked standing and the City’s
zoning determinations were supported by substantial evidence. We affirmed on grounds
Keller lacked standing. (Keller I, supra, C072379.)
       Having actually litigated his zoning claims in Keller I, Keller is precluded from
reasserting them in the present action. A different conclusion would mean Keller could
escape the holding in Keller I that he lacked standing to raise his zoning claims merely by
filing a second action that reasserted the same claims. Such a result is untenable both as
violating the requirement that a litigant have standing as to the claims asserted and that a
litigant cannot reassert the same primary right as adjudicated in a prior action. (Waste
Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223,
1232, disapproved on another point in Save the Plastic Bag Coalition v. City of
Manhattan Beach (2011) 52 Cal.4th 155, 167-168, 170 & fn. 5; Mycogen Corp., supra,
28 Cal.4th at p. 904.)
       Keller argues the public interest exception precludes the application of res judicata
to Keller II. We note Keller invoked the public interest exception for the same claims in
Keller I. (See Keller I, supra, C072379.) In both cases, he argues his claims are


                                              8
justiciable because of the public’s interest in having the City faithfully comply with its
zoning laws. In Keller I, we rejected the claims as follows: “The City has engaged in
administrative proceedings demonstrating an examination of whether the nonconforming
use determinations for Keller’s competitors were properly made. Thus, the agency
charged with zoning code compliance has shown it is ready and willing to ensure the
zoning laws are applied. The public need for Keller to pursue the present action is weak
because it is redundant with the City’s efforts. Moreover, the City has shown a
willingness to fulfill its public duty to ensure zoning code compliance.” (Keller I, supra,
C072379.) Having raised the public interest exception as to the same claims and against
the same party, res judicata bars Keller’s reassertion of the same argument. (Mycogen,
supra, 28 Cal.4th at pp. 896-897.)
       Keller asserts he is entitled to declaratory relief in the present action because
the City’s zoning determinations constitute “a continuing daily violation of the City
Zoning Ordinance.” We are not persuaded because Keller’s request for declaratory
relief is based on the same primary right -- namely, the City’s determination his business
competitors are not violating zoning laws -- as in Keller I. The addition of a claim
that the City’s error constitutes an ongoing violation of zoning laws does not transform
the primary right asserted in Keller II into one that is different from that previously
asserted. Consequently, the request for declaratory relief in Keller II is barred by
claim preclusion.
       Finally, Keller argues he is entitled to an injunction prohibiting the City from
illegal expenditures of taxpayer money on private legal counsel to defend this action.
In his appeal of the trial court’s decision in Keller I, he also asserted a claim that “the
City has engaged in illegal expenditures or waste of public resources.” (Keller I, supra,
C072379.) The claim in Keller I was founded on the premise the City engaged in an
illegal expenditure of public funds by making erroneous zoning determinations. The


                                               9
claim of illegal expenditures of money asserted in the present action is different in that
Keller’s current claim is focused on the City’s retention of private legal counsel to defend
this action.
       Keller could have presented his claim the City was engaging in an illegal
expenditure of funds by hiring private counsel in Keller I. The same law firm that
represents the City in this action also represented the City in Keller I. Having had the
opportunity to raise the issue, the present argument is barred by res judicata. “Although
the causes of action in a first lawsuit may differ from those in a second lawsuit, ‘ “. . . the
prior determination of an issue in the first lawsuit becomes conclusive in the subsequent
lawsuit between the same parties with respect to that issue and also with respect to every
matter which might have been urged to sustain or defeat its determination . . . .” ’ ”
(Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 384,
quoting Frommhagen v. Bd. of Supervisors (1987) 197 Cal.App.3d 1292, 1301, italics
added.) Thus, Keller’s claim of illegal expenditures of public money in the present action
is barred by res judicata.
                                              C.
               No Showing Keller Can Amend His Action to State Viable Claims
       The gravamen of Keller’s present appeal is that he seeks reversal on “[a]n issue of
law yet to be heard.” As explained above, we have concluded Keller’s present action is
barred by res judicata. Keller offers no suggestion he can amend the present action in a
manner that renders his claims cognizable. Accordingly, we determine Keller has not
established any basis for remand to allow him to amend his petition.1



1      Our conclusion Keller II is barred by principles of res judicata obviates the need to
consider Keller’s additional contention that his present action is not barred by the statute
of limitations imposed by Government Code section 65009. Consistent with this


                                              10
                                       DISPOSITION
       The judgment is affirmed. The City of Roseville shall recover its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1) & (2).)



                                                               /s/
                                                  HOCH, J.



We concur:



        /s/
BLEASE, Acting P. J.



            /s/
ROBIE, J.




conclusion, we deny Keller’s request for judicial notice of various zoning ordinances
because they are irrelevant to the disposition of this appeal.

        We also do not address the City’s assertion Keller has become a “serial litigant”
by filing a third writ petition after the notice of appeal was filed in this action. The trial
court is entitled to have the propriety of its ruling evaluated on the basis of the evidence,
argument, and information known to the court at the time of its ruling. (California Farm
Bureau Federation v. State Water Resources Control Bd. (2011) 51 Cal.4th 421, 442.)
Consequently, we deny the City’s request for judicial notice of Keller’s third writ petition
and the City’s demurrer to that petition.


                                             11
