ORDER AND FINDINGS AND RECOMMENDATIONS
This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Presently before the undersigned is defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Dckt. No. 13. Defendant contends, inter alia, that plaintiff's complaint is barred by the doctrine of res judicata. For the reasons stated herein, the undersigned recommends that the motion be granted.
On July 3, 2008, plaintiff filed a complaint in Sacramento County Superior Court against defendant, alleging general negligence, intentional tort, violation of the Family Medical Leave Act ("FMLA"), harassment, and wrongful termination.*fn1 Def.'s Req. for Jud. Notice, Dckt. No. 14, Ex. A. Plaintiff alleged that defendant "[d]id not replace bad office equipment for 5 months after making continuous repair reports, caus[ing] injury to left upper extremity" and that defendant violated the Family Medical Leave Act "by intentionally counting [plaintiff's] medical absences as regular time, in which, caused constant harassment, being singled-out in front of co-worker by management that caused me to be terminated from my employment." Id. Defendant filed a demurrer to plaintiff's complaint on statute of limitations grounds, and on September 16, 2008, the state court issued an order affirming its earlier tentative ruling sustaining defendant's demurrer and granting plaintiff leave to amend. Id., Ex. B, C.
Thereafter, on September 25, 2008, plaintiff filed an amended complaint, alleging the same claims for relief, along with additional factual allegations, including allegations that she was harassed, discriminated, and retaliated against because of her medical condition. Id., Ex. D. Defendant demurred to plaintiff's amended complaint, and on December 24, 2008, the state court sustained the demurrer without leave to amend. Id., Ex. E, F. On January 8, 2009, the state court entered judgment against plaintiff and in favor of defendant. Id., Ex. G.
On May 28, 2009, plaintiff filed the instant complaint. Dckt. No. 1. The complaint alleges that plaintiff suffered permanent injury as a result of her employer's failure to provide a physically adequate work setting (keyboard), and was thereafter denied medical leave to which she was entitled, resulting in unexcused absences, which in turn served as the rationale for defendant's alleged harassment, retaliation and wrongful termination of plaintiff. The complaint appears to allege claims of employment discrimination, harassment, retaliation and wrongful termination, in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.; the federal Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.; the California Fair Employment and Housing Act, Cal. Gov't Code. §§ 12940 et seq.; the California Family Rights Act, Cal. Gov't Code § 12945.2; and the Civil Rights Act, 42 U.S.C. §§ 1981 (equal rights),1981a (damages for intentional employment discrimination). Id.; see also Dckt. No. 3.
Defendant moves to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6), arguing, inter alia, that the complaint is barred by the doctrine of res judicata. To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
Federal courts "are required to give state court judgments the preclusive effect they would be given by another court of that state." Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 84 (1984)). In California, res judicata, or claim preclusion, bars a second lawsuit between the same parties on the same cause of action. People v. Barragan, 32 Cal. 4th 236, 252 (2004). Collateral estoppel, or issue preclusion, bars the relitigation of issues that were actually litigated and determined in the first action. Id. at 252-53. The elements for applying either claim preclusion or issue preclusion to a second action are the same: "(1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding." Id. at 253 (internal quotations omitted).
Here, the same plaintiff is suing the same defendant in the present action and the state court action. Therefore, the only issues for the court are whether the claims she raises in the present action are identical to those litigated in state court and whether the state court action resulted in a final judgment on the merits.
California law holds that a final judgment of a state court "precludes further proceedings if they are based on the same cause of action." Maldonado v. Harris, 370 F.3d 945, 952 (9th Cir. 2004). Unlike the federal courts, which apply a "transactional nucleus of facts" test, "California courts employ the 'primary rights' theory to determine what constitutes the same cause of action for claim preclusion purposes." Id. Under this theory, "a cause of action is (1) a primary right possessed by the plaintiff, (2) a corresponding primary duty devolving upon the defendant, and (3) a harm done by the defendant which consists in a breach of such primary right and duty." City of Martinez v. Texaco Trading & Transp., Inc., 353 F.3d 758, 762 (9th Cir. 2003) (citing Citizens for Open Access to Sand & Tide, Inc. v. Seadrift Ass'n, 60 Cal. App. 4th 1053, 1065 (1998)). "[I]f two actions involve the same injury to the plaintiff and the same wrong by the defendant, then the ...