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November 1, 1991

UTV OF SAN FRANCISCO, INC., et al., Defendants

The opinion of the court was delivered by: WALKER


 This employment discrimination action was filed on February 7, 1990, and assigned case number C-90-0171-VRW ("Walton I"). As the action involved both state and federal claims, the court had to determine whether it should exercise pendent (now called supplemental) jurisdiction over the state law claims. On August 14, 1990, after requesting argument and hearing, the court issued an order declining to exercise jurisdiction over the state law claims, dismissing these without prejudice.

 Plaintiff refiled this matter in the San Francisco Superior Court on November 2, 1990, not only alleging violations of the California Fair Employment and Housing Act (FEHA), Cal. Gov't Code §§ 12900 et seq., but also including the claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., that was still before this court. Plaintiff added state causes of action for fraud and misrepresentation to his complaint.

 Defendants removed plaintiff's complaint to this court on November 9, 1990 pursuant to 28 U.S.C. § 1446(a), based on federal question jurisdiction, 28 U.S.C. §§ 1331, 1441. This complaint was assigned case number C-90-3214-VRW ("Walton II"). On November 19, 1990, plaintiff filed with this court a voluntary dismissal of his Title VII claim in Walton I, noting that he had filed his Title VII claim in state court. This dismissal was entered in the civil docket on November 21, 1990, and that case was closed. This state of affairs is now before the court for sorting out.


 Well established federal and California law forbid plaintiff from splitting a single claim for relief against defendants by making it the subject of more than one action in the same court. Bienville Water Supply Co. v. Mobile, 186 U.S. 212, 22 S. Ct. 820, 46 L. Ed. 1132 (1902); Wulfjen v. Dolton, 24 Cal. 2d 878, 891, 151 P.2d 840, 846 (1944). This does not forbid a plaintiff from proceeding on the same cause of action in two different courts of concurrent jurisdiction at the same time, if jurisdiction is in personam. Kline v. Burke Construction Co., 260 U.S. 226, 230, 67 L. Ed. 226, 43 S. Ct. 79 (1922); Donovan v. City of Dallas, 377 U.S. 408, 12 L. Ed. 2d 409, 84 S. Ct. 1579 (1963); Princess Lida v. Thompson, 305 U.S. 456, 83 L. Ed. 285, 59 S. Ct. 275 (1939); Fowler v. Ross, 142 Cal. App. 3d 472, 191 Cal. Rptr. 183 (1983).

 Once a final judgment is rendered in one of the parallel proceedings, the defendant can then plead the res judicata effect in the other action, serving as a merger or bar. An exception to this rule in California allows a party to proceed upon different legal theories in different courts under certain circumstances subject only to collateral estoppel. Mattson v. City of Costa Mesa, 106 Cal. App. 3d 441, 164 Cal. Rptr. 913 (1980); Craig v. County of Los Angeles, 221 Cal. App. 3d 1294, 271 Cal. Rptr. 82 (1990). In a case such as Walton II, where plaintiff brings state law claims in state court once a federal court has declined to exercise supplemental jurisdiction over the claims in an arguably related federal action, one of the grounds for this exception, defendant's consent, is likely to be found. Defendants can avoid the splitting of the action by stipulating to a dismissal without prejudice of the Title VII claims in Walton I and hearing the entire action in state court. Mattson at 450, 164 Cal. Rptr. at 919.

 Plaintiff appears to have the right to file the entire action, including the duplicative federal claim, in the state court. The question here is whether the removal of Walton II is proper, when removal is based on a federal claim that is already before this court. Because that question may be moot if there are other grounds for federal jurisdiction, the court turns to that issue.

 A. The Fraud and Misrepresentation Claims

 In addition to the duplicative Title VII claim, defendants also assert as a basis for removal that this court has original jurisdiction over the fraud and misrepresentation claims by virtue of the "complete preemption" doctrine and § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) ("§ 301"). Plaintiff bases his fraud and misrepresentation claims on alleged promises made by defendants that plaintiff could be fired only for "good cause." Defendants assert that this promise is either the "just cause" provision in the Collective Bargaining Agreement ("CBA"), or, if an independent agreement, requires interpretation of the "just cause" clause of the CBA.

 The appropriate tests for application of the "complete preemption" doctrine are found in the Supreme Court opinions Caterpillar v. Williams, 482 U.S. 386, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987), and Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). To be preempted by § 301, and thereby converted into federal actions, state claims must fall into one of two categories: claims substantially dependent on interpretive analysis of the CBA, or claims based on rights created by the CBA.

 The court finds none of the Ninth Circuit cases cited by defendants in support of their position on point. Some of the cases involved rights that were implied by the common law, not based on any independent agreements, and displaced by provisions in the CBA. See, e.g., Newberry v. Pacific Racing Ass'n, 854 F.2d 1142 (9th Cir. 1988). One case, DeLapp v. Continental Can Co., 868 F.2d 1073 (9th Cir. 1989), involved an independent agreement that referenced a specific right created by the CBA.

 A few of the Ninth Circuit cases cited by defendants turned on a quote taken out of context from Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468 (9th Cir. 1984). The reason why "any independent agreement of employment could be effective only as part of the collective bargaining agreement" in Olguin was because the CBA in question expressly provided that it was the sole agreement between the employer and employees. Id. at 1474. The court is aware of no such provision in the CBA involved in this case. Defendants cite § 20.1 of the CBA, which does not ...

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