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Colodney v. Orr

United States District Court, C.D. California

April 9, 2015

JAY ORR; DOES 1-50 INCLUSIVE, Defendants.



Pro se Plaintiff Nathan J. Colodney ("Colodney") previously brought suit in this Court, complaining that the County of Riverside's actions in discharging him from its employ constituted breach of contract, wrongful termination, and violated various County ordinances.[1] Colodney's instant Complaint contains similar allegations, except Colodney now avers that Defendant Jay Orr ("Orr"), who was Acting County Executive at the time of Colodney's dismissal, committed fraud by dismissing him.

On March 4, 2015, Orr filed a Motion to Dismiss ("Motion" or "Mot."). (Doc. No. 14.) The Motion is appropriate for resolution without a hearing; the hearing was previously vacated. See Fed.R.Civ.P. 78; L.R. 7-15. After consideration of the papers filed in support of, and in opposition to, the Motion, the Court GRANTS the Motion, and dismisses this action with prejudice.


A. Allegations in the Complaint

The allegations in Colodney's operative complaint, the First Amended Complaint ("FAC") (Doc. No. 8), are substantially similar to those in his previous action.[2] Colodney was employed as the Deputy Chief Information Officer of the United States European Command (US EUCOM) in Stuttgart, Germany when he interviewed for and received an offer to be the "Department Head Riverside County Information Technology and Chief Information Officer." (FAC ¶ 4.) Colodney's offer letter stated his employment "was to be at-will to the Board of Supervisors pursuant to Riverside County Board of Supervisors Management Resolution ("Management Resolution"), Section 601(E)(1)." (Id. ¶ 5.)

When Colodney arrived from Europe to start work on October 7, 2010, he was required to sign an "AT-WILL LETTER OF UNDERSTANDING" which stated that he had "been appointed by and serves at the pleasure of the Board of Supervisors." (Id. ¶ 9.) This document was signed by Orr, who was the Assistant County CEO at the time. (Id.)

On September 22, 2011, the County CEO resigned; Orr, who according to Colodney had not formally been appointed as Acting CEO, dismissed Colodney about an hour after the County CEO resigned. (Id. ¶ 11.) Colodney alleges that his discharge violated various Riverside County Ordinances and the California Government Code because the Board of Supervisors did not properly appoint him to his position, nor did it properly dismiss him. (Id. ¶¶ 12-18.) According to Colodney, Orr lacked the authority or the discretion to dismiss him. (Id. ¶ 19.)

B. Procedural History

Colodney filed this action on September 23, 2014. Orr filed the instant Motion on March 4, 2015.[3] Along with the Motion, Orr filed a Request for Judicial Notice ("RJN") (Doc. No. 15).

Colodney filed his Opposition ("Opp'n") to the Motion on March 18, 2015. (Doc. No. 22.) On March 23, 2015, Orr filed his Reply. (Doc. No. 24.)

C. Request for Judicial Notice

As noted above, Orr has requested the Court take judicial notice of various documents germane to this action. Orr requests the Court take judicial notice of: (A) the "At-will Letter of Understanding" identified in the Complaint; (B) the Court's order in dismissing Colodney's previous action, Colodney v. County of Riverside, without leave to amend ("Colodney Dismissal Order")[4]; (C) a "Notice of Return of Claim as Untimely" dated August 28, 2012; (D) a "Notice of Denial of Application to Present Late Claim" dated October 24, 2012; (E) the termination letter dated September 22, 2011, identified in the Complaint; and (F) pertinent portions of County of Riverside Resolution 2010-230, which contains Section 601, the section Colodney avers Orr violated in discharging him.

The Court may take judicial notice of facts that can be "accurately and readily determined from sources whose accuracy cannot be reasonably questioned." Fed.R.Evid. 201(b)(2). A court may take judicial notice of court filings and other matters of public record. See Reyn's Pasta Bella, LLC v. Visa USA. Inc. , 422 F.3d 741, 746 n.6 (9th Cir. 2006) (citing Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank , 136 F.3d 1360, 1364 (9th Cir. 1998)); see also Harris v. Cnty. of Orange , 682 F.3d 1126, 1132 (9th Cir. 2012) (courts may "take judicial notice of undisputed matters of public record, including documents on file in federal or state courts." (internal citation omitted)).

RJN Exhibits A and E, the documents showing that Colodney was hired and later discharged by Riverside County, are properly subject to judicial notice because they are incorporated into Colodney's pleadings by reference. United States v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003) ("A court may... consider certain materials - documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice - without converting the motion to dismiss into a motion for summary judgment.").

Exhibit F, which is a Riverside County ordinance, is also subject to judicial notice. Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist. , 498 F.3d 1031, 1039 (9th Cir. 2007) ("Municipal ordinances are proper subjects for judicial notice." (citation omitted).)

Forms rejecting claims under California Government Code § 911, like Exhibits C and D, have also been found to be subject to judicial notice. Navarro v. City of Alameda, 2014 WL 4744184, at *2 (N.D. Cal. Sept. 22, 2014).

Accordingly, the Court GRANTS the RJN as to all of the documents discussed above.


Federal Rule of Civil Procedure ("FRCP") 12(b)(6) allows a party to bring a motion to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6) is read along with Rule 8(a), which requires a short, plain statement upon which a pleading shows entitlement to relief. Fed.R.Civ.P. 8(a)(2); Conley v. Gibson , 355 U.S. 41, 47 (1957) (holding that the FRCP require a plaintiff to provide "a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests" (quoting Fed.R.Civ.P. 8(a)(2))); Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). When evaluating a Rule 12(b)(6) motion, a court must accept all material allegations in the complaint - as well as any reasonable inferences to be drawn from them - as true and construe them in the light most favorable to the non-moving party. See Doe v. United States , 419 F.3d 1058, 1062 (9th Cir. 2005); ARC Ecology v. U.S. Dep't of Air Force , 411 F.3d 1092, 1096 (9th Cir. 2005); Moyo v. Gomez , 32 F.3d 1382, 1384 (9th Cir. 1994).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555 (citations omitted). Rather, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id.

To survive a motion to dismiss, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570; 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. Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 556).

The Ninth Circuit has further clarified that (1) a complaint must "contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively" and (2) "the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011).


Orr argues that this action should be dismissed on numerous grounds, but the Court need only address one: this action is clearly barred by the doctrine of res judicata. (Mot. at 10-12.)

A. This Action is Barred by Res Judicata

1. Principles of Res Judicata

Res judicata prohibits lawsuits on "any claims that were raised or could have been raised" in a prior action. Owens v. Kaiser Found. Health Plan, Inc. , 244 F.3d 708, 713 (9th Cir. 2001).

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.'

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency , 322 F.3d 1064, 1077 (9th Cir. 2003) (quoting In re Schimmels , 127 F.3d 875, 881 (9th Cir. 1997)). "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." Clements v. Airport Auth. of Washoe Cnty. , 69 F.3d 321, 330 (9th Cir. 1995).

"The elements necessary to establish res judicata are: (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.'" Headwaters Inc. v. U.S. Forest Serv. , 399 F.3d 1047, 1052 (9th Cir. 2005) (quoting Tahoe-Sierra Pres. Council , 322 F.3d at 1077).

2. Colodney's Previous Action

As noted above, this Court has already considered and dismissed an action in which Colodney alleged that the County of Riverside improperly dismissed him. The Court summarized Colodney's allegations in that action as follows:

Colodney interviewed with and received an offer from the County to become its Chief Information Officer. The offer letter from the County stated that his employment would begin on October 7, 2010 and would be "at-will" to the Board of Supervisors pursuant to the Riverside Board of Supervisors Management Resolution, Section 601E(1). On September 22, 2011, the County Executive Officer resigned, and that same day, Jay Orr, who had not been properly appointed as the [] Acting County Executive Officer but had been acting in that capacity anyway, dismissed Colodney from the County's employ. On August 8, 2012, Colodney filed an administrative claim against the County pursuant to California Government Code § 905. Some time in September 2012, the County rejected Colodney's claim as untimely, wrongfully stating that the statute set a six-month deadline for the filing of such claims. Sometime later, Colodney discovered that he had not been hired (or discharged) in accordance with Executive Officer Ordinance 442.3K, which states that department heads shall be appointed by the County Executive Officer, and confirmed by the Board of Supervisors.

(Colodney Dismissal Order at 2 (paragraph breaks omitted).) Colodney brought three claims against Riverside County in that action: "(1) promissory estoppel, (2) breach of contract - wrongful termination, and (3) unauthorized action - ultra vires.'" (Id. at 1-2.)

3. Analysis

a. Identity of Claims

The Court first addresses whether there is an identity of claims for purposes of res judicata. Courts consider four factors in determining whether there is an identity of claims: "(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts." Turtle Island Restoration Network v. U.S. Dep't of State , 673 F.3d 914, 917-18 (9th Cir. 2012) (citing Costantini v. Trans World Airlines , 681 F.2d 1199, 1201-02 (9th Cir. 1982)). The fourth factor - whether the two suits arise out of the same transactional nucleus of facts - is the "central criterion." Frank v. United Airlines, Inc. , 216 F.3d 845, 851 (9th Cir. 2000) (citation omitted); see also Owens , 244 F.3d at 714.

Comparing the factual allegations of the instant case with the factual recitation from the Colodney Dismissal Order, it is clear that both arise from the same transactional nucleus of facts. Both suits allege that Colodney was hired by Riverside County, and that Orr dismissed him from his position without having the authority to do so. Moreover, much of the same evidence that was submitted in the motion to dismiss in the previous action, which was subject to judicial notice, has also been submitted in this action. Accordingly, the Court finds there is an identity of claims in the instant action and Colodney's previous suit.

b. Final Judgment on the Merits

Colodney's previous case was dismissed without leave to amend. (See Colodney Dismissal Order at 13.) For purposes of res judicata, the term "judgment on the merits" has been liberally construed. Dash, Inc. v. Alcoholic Beverage Control Appeals Bd. , 683 F.2d 1229, 1233 n.6 (9th Cir. 1982) (citation omitted). Moreover, "[t]he phrase final judgment on the merits' is often used interchangeably with dismissal with prejudice.'" Stewart v. U.S. Bancorp , 297 F.3d 953, 956 (9th Cir. 2002). "Dismissal of an action with prejudice, or without leave to amend, is considered a final judgment on the merits." Nnachi v. City of San Francisco , 2010 WL 3398545, at *5 (N.D. Cal. Aug. 27, 2010) (citing Headwaters Inc. , 399 F.3d at 1052); see also Federated Dep't Stores v. Moitie , 452 U.S. 394, 399 n. 3 (1981) (A dismissal "for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the merits.").

Accordingly, this Court's order dismissing Colodney's previous action was a final judgment on the merits.[5]

c. Privity

"The final element of res judicata is privity between the parties." Tahoe-Sierra Pres. Council , 322 F.3d at 1081. In his Opposition, Colodney argues that res judicata does not apply because "claims in plaintiff's earlier case against Riverside County are not applicable to this case, which is against Mr. Orr in his personal capacity. Mr. Orr acted without legal authority and outside the scope of his employment. Thus, there is no privity between the parties." (Opp'n at 12.)

"Even when the parties are not identical, privity may exist if there is "substantial identity" between parties, that is, when there is sufficient commonality of interest.'" Tahoe-Sierra Pres. Council , 322 F.3d at 1081 (9th Cir. 2003) (quoting In re Gottheiner , 703 F.2d 1136, 1140 (9th Cir. 1983)). "[P]rivity is a flexible concept dependent on the particular relationship between the parties in each individual set of cases." Id. at 1081-82.

Federal courts have deemed several relationships "sufficiently close" to justify a finding of "privity" and, therefore, preclusion under the doctrine of res judicata: "First, a non-party who has succeeded to a party's interest in property is bound by any prior judgment against the party. Second, a non-party who controlled the original suit will be bound by the resulting judgment. Third, federal courts will bind a non-party whose interests were represented adequately by a party in the original suit." In addition, "privity" has been found where there is a "substantial identity" between the party and nonparty, where the nonparty "had a significant interest and participated in the prior action, " and where the interests of the nonparty and party are "so closely aligned as to be virtually representative." Finally, a relationship of privity can be said to exist when there is an "express or implied legal relationship by which parties to the first suit are accountable to non-parties who file a subsequent suit with identical issues."

Id. at 1082 (quoting In re Schimmels , 127 F.3d at 881). Thus, when examining privity for purposes of res judicata, "[t]he issue is one of substance rather than the names in the caption of the case; the inquiry is not limited to a traditional privity analysis." Alpert's Newspaper Delivery Inc. v. N.Y. Times Co. , 876 F.2d 266, 270 (2d Cir.1989) as cited in Tahoe-Sierra Pres. Council , 322 F.3d at 1082.

After considering these principles, it is clear there is privity between Orr and the County of Riverside as it concerns the instant action and Colodney's previous action. Though Colodney's previous action was brought against Riverside County only, the instant action against Orr complains about the same conduct, i.e., that Colodney was discharged in violation of Riverside County ordinances and California law. That Colodney's instant complaint is recast as a fraud action (rather than a breach of contract or wrongful termination action) and names Orr as a defendant (rather than Riverside County) is of no moment. Orr is being sued for his allegedly wrongful conduct as an agent of Riverside County; their identities are essentially the same. Accordingly, the Court finds that privity between the parties exists for purposes of res judicata.

The res judicata bar applies as a prohibition on suits that allege "any claims that were raised or could have been raised" in a previous action. Colodney could have raised his fraud claim against Orr in his previous action against the County. As there is an identity of claims in the instant action and Colodney's previous suit, because the prior action was resolved by a final judgment on the merits, and because there is sufficient privity between the parties to bind the current parties to the result of the prior litigation, the Court finds that Colodney's claim is barred by the doctrine of res judicata.


For the reasons stated above, the Court GRANTS the Motion and DISMISSES this action WITH PREJUDICE.


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