Filed 9/15/17; Certified for Publication 10/12/17 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT

VA LY, et al.,
                                                                               F072351
         Plaintiffs and Appellants,
                                                                     (Super. Ct. No. 09CECG02743)
                  v.

COUNTY OF FRESNO,                                                            OPINION
         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver
Kapetan, Judge.
         Law Office of Michael A. Morguess and Michael A. Morguess for Plaintiffs and
Appellants.
         McCormick, Barstow, Sheppard, Wayte & Carruth and Mart B. Oller IV for
Defendant and Respondent.
                                                     -ooOoo-
         Three Laotian correctional officers, Va Ly, Travis Herr and Pao Yang, were
allegedly subjected to racial and national origin discrimination, harassment and
retaliation by their employer, the County of Fresno (County), and its employees. The
three filed suit against the County pursuant to the Fair Employment and Housing Act
(FEHA), Government Code section 12900 et seq., while simultaneously pursuing their
workers’ compensation remedies. In separate workers’ compensation proceedings, the
administrative law judges denied plaintiffs’ claims after finding the County’s actions
were non-discriminatory, good faith personnel decisions. The County moved for
summary judgment based on the doctrines of res judicata and collateral estoppel, arguing
the workers’ compensation decisions barred plaintiffs’ FEHA claims. The trial court
granted summary judgment.
       On appeal, plaintiffs contend (1) collateral estoppel does not apply because the
findings in the workers’ compensation proceedings that the County’s actions were lawful,
non-discriminatory, good faith personnel actions were not necessary to the decisions, and
(2) neither res judicata nor collateral estoppel apply because the workers’ compensation
and FEHA actions involve different primary rights. We conclude res judicata bars
plaintiffs’ claims in this action and affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiffs, who are Laotians of Hmong ethnicity, worked for the County as
correctional officers. They initiated this action in August 2009; before doing so they
each filed a complaint with the Department of Fair Employment and Housing, which
issued them “right-to-sue” letters. In their second amended complaint, filed in
September 2010, plaintiffs allege the County and its employees subjected them to adverse
employment actions that constituted discrimination and harassment based on their race,
ethnicity and national origin, and they were retaliated against after they complained about
their treatment, in violation of FEHA.
       Prior to commencing this action, each plaintiff filed a workers’ compensation
claim with the Department of Industrial Relations, Workers’ Compensation Appeals
Board (WCAB), for psychiatric injuries arising from the discrimination, harassment and
retaliation. In each workers’ compensation case, a hearing was held before a worker’s



                                             2.
compensation administrative law judge (WCJ) at which testimony and evidence were
received.
       The workers’ compensation cases were resolved as follows.1 In Ly’s case, Ly
testified he was subjected to racial discrimination and harassment when his requests to
swap shifts with other officers were denied; he was moved out of his regular assignment
and repeatedly reassigned to the main jail; and his sergeant, Charron Reams, referred to
him as “the Swap King,” which led to teasing by other officers. In October 2012, WCJ
Geoffrey H. Sims issued his decision, in which he found the denial of Ly’s swap request
“was not a discriminatory action and was made as a good faith personnel action,” and the
reassignments were due to business necessity and were not discriminatory actions. Sims
ordered that Ly take nothing by way of his complaint.
       In Herr’s case, Herr testified he was subjected to racial discrimination and
retaliation when another correctional officer, Mary Nichols, confronted him in the staff
dining room and “told him off” in front of other officers, and the incident became fodder
for gossip and teasing; Nichols, who had been promoted to sergeant, denied him time off
for his aunt’s funeral; Reams “hid” desirable mandatory overtime assignments from him;
and his swap requests and requests to split overtime shifts were denied. In May 2014,
WCJ Thomas J. Heslin issued his decision, in which he found Herr did not sustain
industrial injury to his psyche and ordered that he take nothing as a result of his claim.
Heslin determined that the overall record showed the complained-of actions were good
faith personnel actions that were not directed at Herr as an individual or because he is
Laotian.
       Herr filed a petition for reconsideration, in which he argued the evidence
overwhelmingly showed a pattern of ongoing racial discrimination and harassment, and


       1In April 2013, the superior court stayed the FEHA action to allow the pending
workers’ compensation proceedings to be completed.


                                             3.
retaliation. In September 2014, the WCAB adopted Heslin’s subsequent report and
recommendation on the petition, and denied the petition. The WCAB found that the
actions of Herr’s supervisors “were good faith personnel actions” that “were taken in
order to provide for the best and most effective staffing at the jail.”
        In Yang’s case, Yang testified that two incidents occurred while he was on duty in
the security booth at the jail that resulted in discipline; the incident reports made their
way up the chain of command to Lieutenant Watkins; Yang was terminated after he
refused to cooperate with the ensuing investigation; he utilized the grievance procedures
and the Civil Service Commission reinstated his employment, but 240 hours of his lost
employment time was converted to a suspension and counsel were ordered to meet and
confer to arrive at a figure for back pay for the remaining hours; and he was terminated
when he did not return to work. Yang claimed the complaints and discipline imposed
were racially motivated. In September 2011, WCJ Dominic E. Marcelli issued his
decision, in which he found Yang did not sustain “a compensable industrial injury to his
psyche” and ordered he take nothing by way of his application. Marcelli determined the
County’s actions were “lawful, non-discriminatory and done in good faith.” Yang filed a
petition for reconsideration, which the WCAB dismissed as untimely.
       In April 2015, after completion of the workers’ compensation cases, the County
filed separate summary judgment motions as to each plaintiff. In all of the motions, the
County argued plaintiffs’ discrimination, harassment, and retaliation claims were barred
by the doctrines of res judicata and collateral estoppel, as their claims were fully litigated,
or were litigable, in the WCAB proceedings.
       Plaintiffs opposed the motions. They argued (1) res judicata did not apply because
workers’ compensation is the exclusive remedy for their industrial injuries, the workers’
compensation and FEHA claims involve different primary rights, the difference in
remedies available in both forums provide an incentive for industrially injured employees
to also pursue a FEHA claim, and had they prevailed in the workers’ compensation cases,

                                              4.
the County would not have been precluded from continuing to defend the FEHA actions;
and (2) collateral estoppel did not apply because they were not litigating an industrial
injury in the FEHA action.
       The trial court granted the motions. The trial court noted that while plaintiffs
could not be forced to litigate their FEHA claims before the WCAB, each chose to pursue
their remedies in that forum on the exact claims asserted in the FEHA action. The trial
court found the workers’ compensation proceedings were judicial in nature and the
doctrine of collateral estoppel barred plaintiffs’ FEHA claims because (1) each plaintiff
was afforded the opportunity to present evidence and call witnesses, with Ly represented
by counsel, and Herr and Yang allowed to self-direct their testimony, produce documents
and call witnesses; (2) the issues litigated were identical; and (3) each WCJ found the
County’s actions “were non-discriminatory, in ‘good faith,’ and based upon ‘business
necessity.’ ”
                                       DISCUSSION
       The standards governing summary judgment motions and appellate review of them
are well established. Summary judgment is proper if there is no triable issue of material
fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c).) We review the trial court’s ruling on a summary judgment motion de
novo and independently determine whether the moving party is entitled to judgment as a
matter of law. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (Hampton).)
We consider all of the evidence set forth in the moving and opposing papers, except that
as to which objections have been made and sustained. (Code Civ. Proc., § 437c,
subd. (c).) We liberally construe the evidence in favor of the party opposing summary
judgment and resolve all doubts concerning the evidence in favor of that party.
(Hampton, at p. 347.) “We must affirm a summary judgment if it is correct on any of the
grounds asserted in the trial court, regardless of the trial court’s stated reasons.” (Garrett
v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181.)

                                              5.
       Although the County raised both res judicata and collateral estoppel as grounds for
summary judgment in their motions, the trial court ruled only on one – collateral
estoppel. On appeal, plaintiffs raise both grounds and assert that neither bars their FEHA
claims. We need not determine whether the trial court erred in granting summary
judgment based on collateral estoppel because summary judgment is properly affirmed
on the alternative doctrine of res judicata.2
       Workers’ compensation is ordinarily the exclusive remedy of an employee who is
injured while performing services growing out of and incidental to his or her
employment. (Lab. Code, §§ 3602, subd. (a), 3600, subd. (a).) Racial or national origin
discrimination and harassment is not a normal incident of employment; accordingly, a
claim for damages under the FEHA is not barred by the exclusive remedy provisions of
the workers’ compensation act. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341,
347; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 480 [The
Legislature “did not intend that its objective of providing relief from civil rights
violations would be defeated by the exclusive remedy provision of the workers’
compensation act.”].)
       Nevertheless, the Legislature has acknowledged that an injured employee may
choose to recover for psychiatric injury caused by racial or national origin discrimination
or harassment by means of a workers’ compensation claim. (Lab. Code, § 3208.3,
subd. (b)(1).) In such cases, an employer may assert as a defense that the psychiatric
injury “was substantially caused by a lawful, nondiscriminatory, good faith personnel
action.” (Lab. Code, § 3208.3, subd. (h).) Thus, an employee who claims to have been
discriminated against or harassed in the workplace has a choice of remedies: a claim may
be made under the FEHA or under workers’ compensation. Here, plaintiffs elected to

       2Since the parties have briefed the res judicata issue, we may decide it even
though the trial court did not rely on that ground in granting summary judgment. (Code
Civ. Proc., sec. 437c, subd. (m)(2).)


                                                6.
pursue both remedies. The workers’ compensation claims were resolved first, in the
County’s favor. The question on appeal is whether the workers’ compensation decisions
have a preclusive effect on plaintiffs’ FEHA action.
       “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.” (Mycogen
Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen).) Claim preclusion applies
only if (1) the decision in the former proceeding is final and on the merits; (2) the present
proceeding is on the same cause of action as the former proceeding; and (3) the parties in
both the former and present proceedings are the same. (Busick v. Workmen’s Comp.
Appeals Bd. (1972) 7 Cal.3d 967, 973-974 (Busick).3 Claim preclusion “ ‘gives certain
conclusive effect to a former judgment in a subsequent litigation involving the same
controversy.’ ” (Id. at p. 973.) Under the doctrine, a valid final judgment in favor of the
plaintiff merges the cause of action in the judgment and, if in the defendant’s favor,
constitutes a bar to any further suit on the same cause of action. (Ibid.) When a plaintiff
has two mutually exclusive remedies for the enforcement of a claim, and a judgment in
the first action is rendered on the merits of the case, the plaintiff cannot proceed to
judgment in the second action. (Id. at pp. 973-974.)
       There is no question here that the decisions in the workers’ compensation cases
were final and on the merits, and the same parties were involved in both the workers’
compensation cases and the FEHA action. Plaintiffs, however, contend claim preclusion
does not apply because the two proceedings do not involve the same cause of action.

       3 While claim preclusion bars the relitigation of causes of action, collateral
estoppel, or issue preclusion, bars litigation of issues argued and decided in a prior
proceeding. (Mycogen, supra, 28 Cal.4th at p. 896.) Issue preclusion shares the same
three prerequisites with claim preclusion, but issue preclusion requires “the additional
elements that the issue to be precluded was actually litigated and necessarily decided.”
(Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 83 (Zevnik).) “The ‘necessarily
decided’ requirement generally means only that the resolution of the issue was not
‘entirely unnecessary’ to the judgment in the initial proceeding.” (Ibid.)


                                              7.
       Claim preclusion is based on the primary right theory. (Mycogen, supra,
28 Cal.4th at p. 904.) Under that theory, “ ‘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.’ ” (Ibid.) A primary
right “ ‘is simply the plaintiff’s right to be free from the particular injury suffered,’ ” and
violation of a primary right gives rise to a single cause of action. (Ibid.) The primary
right must 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.” ’ ” (Ibid.)
       The case before us is analogous to Busick, supra, 7 Cal.3d 967. There, the
petitioner was shot by her former employer when she was picking up her final paycheck.
She filed both a workers’ compensation claim on the theory that her injury arose out of
and in the course of her employment, and a superior court action for assault and battery.
(Id. at p. 971.) The superior court action was resolved before the workers’ compensation
case was final, with the court finding in her favor and awarding her damages. The
petitioner sought appellate review of the subsequent workers’ compensation decision
which denied her compensation because the injury did not arise out of the course and
scope of her employment. (Id. at pp. 971-972.) Our Supreme Court concluded res
judicata barred the workers’ compensation action. The Court concluded the workers’
compensation proceeding was brought on the same cause of action as in the superior
court case, since in the latter, petitioner sought “redress for injuries suffered from one
tortious act, the shooting incident. . . . Violation of one primary right in the [workers’



                                               8.
compensation] case constitutes a single cause of action even though two mutually
exclusive remedies are available.” (Busick, supra, 7 Cal.3d at p. 975.)
       Similarly here, in the workers’ compensation cases plaintiffs sought redress for
employment actions they claimed were caused by unlawful discrimination, harassment
and retaliation. In the FEHA action, plaintiffs seek redress for the same injuries –
psychiatric injuries caused by the County’s discriminatory, harassing and retaliatory acts
in the workplace. The effect of the employment actions on their mental states is at the
heart of both their workers’ compensation and FEHA claims. While the forums are
different, the harm suffered is identical and therefore the same primary rights are
implicated.
       Plaintiffs maintain that claim preclusion does not apply here because the primary
rights are different – in workers’ compensation, the primary right is the statutory right to
prompt compensation for work-related injuries regardless of fault (Le Parc Community
Assn’n v. Workers’ Compensation Appeals Bd. (2003) 110 Cal.App.4th 1161, 1172
[voluntary dismissal with prejudice of a civil action for negligence under Labor Code
section 3706 does not bar continued litigation of related workers’ compensation claim]),
while in a FEHA action, the primary right is to be “free of invidious employment
discrimination.” (Acuna v. Regents of University of California (1997) 56 Cal.App.4th
639, 649 [race and ethnic discrimination claims, whether brought under title VII of the
Civil Rights Act of 1965 (42 U.S.C. § 2000e et seq.) or the FEHA, arise from the same
primary right].)
       While this may be true as an abstract proposition, the relevant question is whether
plaintiffs’ workers’ compensation and FEHA claims in fact alleged violation of the same
or different primary rights. In their workers’ compensation cases, plaintiffs sought to
recover for psychiatric injuries caused by the County’s employment actions which they
asserted were based on their race and national origin. In this action, plaintiffs seek to
recover for the same injuries based on the same acts. The FEHA action does not allege

                                             9.
any injury that was not alleged in the workers’ compensation cases. Thus, in the two
forums, plaintiffs seek the vindication of one primary right – the right to work in an
environment free of discrimination, harassment and retaliation.
       It does not matter, as plaintiffs assert, that an employer can prevail in a workers’
compensation action under Labor Code section 3208.3, subdivision (b)(1) without
disproving unlawful discrimination, such as where the employee fails to establish
employment events predominately caused his or her psychiatric injury. This is because
the County did disprove unlawful discrimination in plaintiffs’ workers’ compensation
cases. The workers’ compensation decisions are res judicata “ ‘on matters which were
raised or could have been raised, on matters litigated or litigable.’ ” (Busick, supra,
7 Cal.3d at p. 975.) Moreover, even if the decisions that plaintiffs did not sustain injury
are incorrect, they still preclude relitigation of the issue, because “ ‘[a]n erroneous
judgment is as conclusive as a correct one.’ ” (Ibid.) By pursuing their workers’
compensation claims to final judgment, plaintiffs are now barred from pursuing a tort
claim for the same injury. (Lake v. Lakewood Chiropractic Center (1993)
20 Cal.App.4th 47, 54.)
       In sum, plaintiffs had one primary right: their right to recover for an injury caused
by discrimination, harassment and retaliation in the workplace. Two alternate forums
were available to them to redress the injury. Plaintiffs proceeded first with their workers’
compensation remedy, even though the standard for recovery under FEHA may be
broader. The workers’ compensation decisions are now final and binding. When two
tribunals have jurisdiction and neither party objects to the jurisdiction of one or the other,
then the first final judgment from one of the tribunals becomes conclusive and renders the
same issue res judicata in the other court. (Busick, supra, 7 Cal.3d at p. 977.) While
workers’ compensation was not plaintiffs’ exclusive remedy, once they elected to pursue
that remedy to a final, adverse judgment instead of insisting on the primacy of their rights
under the FEHA, the WCAB became the exclusive forum to recover for their injuries.

                                             10.
                                 DISPOSITION
     The judgment is affirmed. Costs on appeal are awarded to the County.



                                                           _____________________
                                                               GOMES, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
SMITH, J.




                                        11.
Filed 10/12/17




                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

 VA LY, et al.,
                                                                     F072351
         Plaintiffs and Appellants,
                                                         (Super. Ct. No. 09CECG02743)
                 v.
                                                           ORDER GRANTING
 COUNTY OF FRESNO,                                          REQUEST FOR
                                                             PUBLICATION
         Defendant and Respondent.


       As the nonpublished opinion filed on September 15, 2017, in the above entitled
matter hereby meets the standards for publication specified in the California Rules of
Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the
Official Reports.


                                                       _______________________
                                                               Gomes, Acting P.J.

WE CONCUR:


______________________
Detjen, J.


______________________
Smith, J.




                                             1.
