People v. Vanguard Outdoor CA2/1 ( 2014 )

Filed 5/30/14 P. v. Vanguard Outdoor CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE OF THE STATE OF B244688
CALIFORNIA, et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC437023)
v.
VANGUARD OUTDOOR, LLC, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Malcolm
H. Mackey, Judge. Reversed and remanded with directions.
Michael N. Feuer and Carmen A. Trutanich, City Attorneys, Tina Hess and Jose
A. Egurbide, Assistant City Attorneys, Colleen M. Courtney and Andrew K. Wong,
Deputy City Attorneys, for Plaintiffs and Appellants.
Knight Law Group, Raaqim A. S. Knight, for Defendants and Respondents Mark
Denny and MD Graphic Installers, Inc.
Loeb & Loeb, William M. Broday; Harder Mirell & Abrams, Douglas E. Mirell,
for Defendants and Respondents Paramount Contractors and Developers, Inc., Bradley
Lawrence Folb, Sunset Blvd. Properties, LP and Patricia M. High.
__________________________
INTRODUCTION
This appeal concerns two separate appealable orders in an action brought by
plaintiffs and appellants the People of the State of California (the “People”) and the City
of Los Angeles (the “City”) (collectively “Appellants”)1 in the superior court against
various companies and individuals for alleged violations of the Outdoor Advertising Act
(“OAA”) (Bus. & Prof. Code, § 5200 et seq.), the Unfair Competition Law (“UCL”)
(Bus. & Prof. Code, § 17200 et seq.), public nuisance statutes (Code Civ. Proc., §§ 3479,
3480) and Los Angeles Municipal Code (LAMC, § 11.00, subd. (1)) arising from the
installation of supergraphic signs on buildings.
The first appeal is from a September 11, 2012 order of dismissal granting a motion
for judgment on the pleadings (“September 11, 2012 Order”) by respondents Paramount
Contractors and Developers, Inc. (“Paramount”), Patricia High (“High”), Sunset Blvd.
Properties, LP (“Sunset”) and Bradley Lawrence Folb (“Folb”) (collectively “Building
Respondents”) based on the broad language of a release contained in a stipulation for
entry of judgment between Appellants and defendants Vanguard Outdoor, LLC and
Pamela K. Anderson (collectively “VO Defendants”).
Because we conclude the stipulated judgment did not release the Building
Respondents, we reverse.
The second appeal is from an August 24, 2012 order of dismissal sustaining a
demurrer (“August 24, 2012 Order”) by respondents MD Graphic Installers, Inc. (“MD
Graphic”) and Mark Denny (“Denny”) (collectively “Installer Respondents”) to
Appellants’ claims as barred by res judicata based on a settlement of an administrative
action brought by the California Department of Transportation (“Caltrans”) for violations
of the OAA.
Because we conclude that res judicata does not preclude the instant action, we
reverse.
1
The Los Angeles City Attorney represents both the People and the City.
2
FACTUAL AND PROCDURAL BACKGROUND
Although part of a long and complicated series of litigation in both state and
federal court regarding regulation of supergraphics2 and other outdoor advertising, the
facts relevant to this appeal are fairly straightforward.
I. Background Relevant to the Building Respondents
The Building Respondents own two office buildings in Los Angeles, located at
6464 and 6565 West Sunset Boulevard.3 The Building Respondents, as well as other
building defendants, leased space on the outside faces of their buildings to VO
Defendants, outdoor advertisers, on which to hang supergraphics. The Installer
Respondents, as well as other installer defendants, put up and took down the
supergraphics.
Appellants filed their original complaint in May 2010 and filed the operative First
Amended and Supplemental Complaint in April 2011 (“FASC”), seeking civil penalties,
restitution and injunctive relief by way of the UCL, OAA, public nuisance statutes and
LAMC.
Between November 2011 and March 2012, Appellants settled with all named
defendants except for Building Respondents and Installer Respondents,4 the parties to this
appeal. At issue is the stipulation for entry of judgment executed by Appellants and VO
Defendants on March 20, 2012 (the “VO Stipulation”) and the final judgment entered by
the trial court as to the VO Respondents on the same day (“VO Judgment”).
Specifically, the VO Stipulation and the VO Judgment both state:
2
Supergraphic signs are large advertisements that are stretched or pasted across
the side of a building. (World Wide Rush LLC v. City of L.A. (C.D. Cal. 2009) 605
F. Supp. 2d 1088, 1091, rev’d (9th Cir. 2010) 606 F.3d 676.)
3
Public records list Paramount as an owner of both buildings, list High as an
owner of 6464 West Sunset Boulevard and list Sunset as an owner of 6565 West Sunset
Boulevard. Folb is the manager of Paramount and Sunset.
4
The Installer Respondents demurred in February 2012. The trial court’s August
24, 2012 Order sustaining their demurrer without leave to amend is discussed in the
second half of this appeal.
3
“‘VANGUARD’ is defined as any and all of VANGUARD’s past, present and
future parent companies, subsidiaries, predecessors, successors, affiliates, divisions, joint
employers, co-employers and related companies, officers, directors, members, managing
members, agents, trustees, shareholders, assigns, beneficiaries, representatives,
employees, managers, accountants, owners, investors, partners, insurers, property owners,
and attorneys and each of them, both in their individual and representative capacities.”5
The VO Judgment also states that, except as provided in event of a breach of a
concurrently executed criminal plea agreement, Appellants “shall not . . . commence a
criminal, civil, administrative, regulatory, civil enforcement or any other action or
proceeding against VANGUARD and/or ANDERSON or further prosecute it civilly or
criminally, for alleged acts, practices and violations of law relating to the design,
placement, erection, installation, construction . . . maintenance and/or operation of any
Supergraphic Signs, Off-Site Signs, Advertising Displays and/or Other Outdoor
Advertising Signage at . . . 6464 West Sunset Boulevard, 6565 West Sunset
Boulevard . . . occurring prior to the entry of this Stipulated Judgment.”
In April 2012, Appellants and Building Respondents filed a stipulation to extend
their time to complete mediation (“Time Stipulation”). Both Appellants and Building
Respondents signed the Time Stipulation.6 The Time Stipulation stated that settlement
negotiations had resulted in “the successful resolution of this matter, by way of stipulated
judgments, as to each of the following defendants: VANGUARD OURTDOOR, LLC, a
California limited liability company; PAMELA K. ANDERSON, an individual; [and
other installer and building defendants]” and “the remaining [Building Respondents] and
5
This same definition of “VANGUARD” is used in a plea and proposed
sentencing agreement between VO Defendants and the People in a misdemeanor criminal
case brought by the City on behalf of the People of California against the VO Defendants,
the Installer Respondents and a settling building defendant. We granted Appellant’s
request for judicial notice of the VO Defendants plea agreement and other documents
from the criminal case on May 28, 2013.
6
Installer Respondents also signed the stipulation.
4
[Appellants]7 still desire to participate in mediation but were not able to reach agreement
on a private mediator until recently . . . .”
On August 6, 2012, the Building Respondents filed their motion for judgment on
the pleadings arguing that the VO Stipulation and VO Judgment defined “VANGAURD”
to include Building Respondents as agents, representatives or property owners and
therefore Appellants released all claims against Building Respondents as part of the VO
Stipulation and the VO Judgment.
On August 15, 2012, Appellants and the VO Defendants filed a supplemental
stipulation for entry of an amended judgment (“Supplemental Stipulation”) and a
proposed amended final judgment which stated that “‘VANGUARD’ expressly excludes
the remaining named defendants” in the litigation and listed the Building Respondents
and the Installer Respondents. The trial court did not sign either document or enter the
amended final judgment.
After argument at the August 28, 2012 hearing, the trial court granted Building
Respondents motion for judgment on the pleadings. The court noted that the FASC
identified Building Respondents as owners of the properties at 6464 and 6565 Sunset
Boulevard and alleged agency, and concluded that Building Respondents were included
in the definition of “VANGUARD” in the VO Stipulation.
On September 11, 2012, the trial court ordered dismissal of the FASC.
II. Background Relevant to the Installer Respondents
The Installer Respondents installed supergraphic and off-site signs at 3000 South
Robertson Boulevard. As previously stated, Appellants filed their original complaint in
May 2010 and filed the operative FASC in April 2011, seeking civil penalties, restitution
and injunctive relief by way of the UCL, OAA, public nuisance statutes and LAMC.
Meanwhile, Caltrans had previously instituted an administrative action and filed
an amended accusation in November 2009 (“Accusation”) against four entities (who are
not parties to this appeal), alleging violations of the OAA at five locations within Los
7
The stipulation defined Building Respondents as “Paramount/Sunset
Defendants” and Appellants as “Plaintiffs”.
5
Angeles (which are not at issue in this appeal). On February 2, 2011, the Caltrans action
settled (“Caltrans Settlement”) and Caltrans released the four entities and twenty-two
additional entities who were not named in the Accusation, including the Installer
Respondents at issue here, from “all claims . . . of every nature and description, whether
known or unknown, contained in or arising out of [the administrative action], or that
could have been alleged based on the facts set forth in [the administrative action] . . . ,
including, without limitation, claims that [released parties] violated on provision of” the
OAA, UCL, public nuisance statutes, and other statutes. The Caltrans Settlement also
released “claims that [Caltrans] does not know or suspect to exist in its favor” against the
released entities, and precluded Caltrans “and others purporting to act on [Caltrans’]
behalf from maintaining . . . actions and/or proceedings” in “any forum, including . . . any
local, state or federal agency or court, in connection with” the released claims. On
February 16, 2011, Caltrans dismissed its Accusation.
Almost a year later, on February 6, 2012, Installer Respondents demurred to the
FASC in this action, asking the court to take judicial notice of the Caltrans Settlement
and arguing that the Caltrans Settlement release of claims, including UCL claims, was res
judicata.
After oral argument at the August 2, 2012 hearing, the trial court sustained the
demurrer without leave to amend. The trial court ruled that the Caltrans Settlement’s
release was res judicata on all causes of action. In the August 24, 2012 Order, the trial
court issued an order of dismissal.
DISCUSSION
We review de novo the sustaining of a demurrer and the grant of a motion for
judgment on the pleadings. (Smiley v. Citibank (S.D.), N.A. (1995) 11 Cal. 4th 138, 145–
146.)
“‘The standard for granting a motion for judgment on the pleadings is essentially
the same as that applicable to a general demurrer, that is, under the state of the pleadings,
together with matters that may be judicially noticed, it appears that a party is entitled to
6
judgment as a matter of law.’ [Citation.] ‘Matters which are subject to mandatory
judicial notice may be treated as part of the complaint and may be considered without
notice to the parties. [Citation.] Matters which are subject to permissive judicial notice
must be specified in the notice of motion, the supporting points and authorities, or as the
court otherwise permits.’ [Citation.] ‘Judgment on the pleadings does not depend upon a
resolution of questions of witness credibility or evidentiary conflicts. In fact, judgment
on the pleadings must be denied where there are material factual issues that require
evidentiary resolution. [Citation.] In determining whether the pleadings, together with
matters that may be judicially noticed, entitle a party to judgment, a reviewing court can
itself conduct the appropriate analysis and need not defer to the trial court.’” (Bezirdjian
v. O’Reilly (2010) 183 Cal. App. 4th 316, 321–322.) “‘In an appeal from a motion
granting judgment on the pleadings, we accept as true the facts alleged in the
complaint . . . .’” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal. App. 4th 1342, 1361.)
I. Building Respondents
Appellants People and City, represented by the City Attorney, contend that the
trial court erred in granting the Building Respondents motion for judgment on the
pleadings because the Building Respondents were not intended to be third party
beneficiaries of the VO Stipulation and VO Judgment, that the language unambiguously
does not include Building Respondents and, if ambiguous, extrinsic evidence of the
circumstances of the VO Stipulation support construing the term “VANGUARD” as
excluding the Building Respondents.
The Building Respondents also argue that the plain language of the VO Stipulation
is unambiguous but argue that it clearly releases them from liability. We disagree with
both these arguments as discussed below.
Stipulated judgments are interpreted according to ordinary contractual principles.
In the absence of extrinsic evidence, we may interpret it as a matter of law. (Jamieson v.
City Council of the City of Carpinteria (2012) 204 Cal. App. 4th 755, 761.) Likewise, the
meaning of a contractual release is a legal question, not a factual question, and the
meaning is resolved by application of contract principles. (Solis v. Kirkwood Resort Co.
7
(2001) 94 Cal. App. 4th 354, 360.) Whether a part is covered by the language of a release
is governed by ordinary principles of contract interpretation. (Hess v. Ford Motor Co.
(2002) 27 Cal. 4th 516, 528.)
“The language of a contract is to govern its interpretation, if the language is clear
and explicit, and does not involve an absurdity.” (Civ. Code, § 1638.) “A contract must
be so interpreted as to give effect to the mutual intention of the parties as it existed at the
time of contracting, so far as the same is ascertainable and lawful.” (§ 1636.) “Although
‘the intention of the parties is to be ascertained from the writing alone, if possible’ (id., §
1639), ‘[a] contract may be explained by reference to the circumstances under which it
was made, and the matter to which it relates’ (id., § 1647). ‘However broad may be the
terms of a contract, it extends only to those things . . . which it appears that the parties
intended to contract.’ (Id., § 1648.)” (Hess, supra, 27 Cal.4th at p. 524.)
“A third party beneficiary may enforce a contract made for its benefit. (Civ. Code,
§ 1559.) However, ‘[a] putative third party’s rights under a contract are predicated upon
the contracting parties’ intent to benefit’ it. [Citation.] Ascertaining this intent is a
question of ordinary contract interpretation. [Citation.] Thus, ‘[t]he circumstance that a
literal contract interpretation would result in a benefit to the third party is not enough to
entitle that party to demand enforcement.’ [Citation.]” (Hess, supra, 27 Cal.4th at p.
524.) In other words, “[b]ecause the court must consider the circumstances of the
contracting parties’ negotiations to determine whether a third party not named in the
release was an intended beneficiary, it will seldom be sufficient for the third party simply
to rely on a literal application of the terms of the release.” (Neverkovec v. Fredericks
(1999) 74 Cal. App. 4th 337, 349.) “‘Whether a third party is an intended beneficiary . . .
to the contract involves construction of the parties’ intent, gleaned from reading the
contract as a whole in light of the circumstances under which it was entered.’ [Citation.]”
(Ibid.)
Here, Building Respondents rely on a literal reading of the expansive definition of
“VANGUARD” used in the VO Stipulation and VO Judgment as including “any and all
of VANGUARD’s past, present and future . . . agents, . . . representatives, . . . [and]
8
property owners . . . .” As Building Respondents note, the FASC alleges that the
Building Respondents are property owners. Likewise, the FASC alleges that defendants
acted as “agents, . . . representatives . . . of each other.”8 Thus, on its face, the VO
Stipulation and VO Judgment appear to release the Building Respondents. However,
“even an apparently unambiguous general release is properly interpreted in light of the
surrounding circumstances.” (Neverkovec, supra, 74 Cal.App.4th at p. 350.) Examining
the VO Stipulation and VO Judgment and the circumstances under which they were
entered shows that Appellants and VO Defendants did not intend to benefit Building
Respondents.
First, even though “VANGUARD” was a defined term, there were two definitions
of VANGUARD given in the VO Stipulation and VO Judgment. In addition to the broad
definition previously quoted of “VANGUARD”, the VO Stipulation and the VO
Judgment contain a second, narrower definition of the same term that did not include
Building Respondents. In identifying the parties, the stipulation and judgment refer to
“Defendant[] Vanguard Outdoor, LLC (‘VANGUARD’).” This narrower definition of
the term “VANGUARD” is given again at the beginning of the paragraph that gives the
broader definition of “VANGUARD”. The VO Stipulation states: “As used herein,
‘VANGUARD’ refers to Vanguard Outdoor, LLC . . . .” The VO Judgment states:
“VANGUARD is a California Limited Liability Company, with its principal place of
business in California, and authorized to do business in California . . . .” Even more
confusing, when giving the broader definition of “VANGUARD”, both the VO
Stipulation and the VO Judgment refer to the narrower meaning of “VANGUARD” as
part of the broader definition: “‘VANGUARD’ is defined as any and all of VANGUARD’s
8
Building Respondents contend that these allegations constitute judicial
admissions and Appellants should be judicially stopped from contradicting them. We do
not address these contentions as, even assuming Building Respondents fall within the
literal scope of the release, we conclude that, reading the VO Stipulation and VO
Judgment in whole and in light of the circumstances under which they were entered, the
Building Respondents were not intended third party beneficiaries.
9
past, present and future . . . agents, . . . representatives, . . . [and] property owners . . . .”
(Italics added.)
Moreover, despite giving the broader definition of “VANGUARD”, the VO
Stipulation uses “VANGUARD” several times with the narrower meaning. For instance,
the VO Stipulation refers to the FASC’s OAA allegations against “VANGUARD” (but
no OAA claims were asserted against the Building Respondents), refers to time extension
stipulation for the due date for “VANGUARD’s” responsive pleading (but the Building
Respondents were not parties to that stipulation), and refers to a criminal complaint
against “VANGUARD” (but the Building Respondents were not named defendants in a
criminal action).
Similarly, several references in the VO Judgment to “VANGUARD” cannot
reasonably be read to include the Building Respondents within its meaning. For instance
in the VO Judgment, “VANGUARD” agrees to be enjoined from placing supergraphics
in various locations including at 6464 and 6565 West Sunset Boulevard and to be
enjoined from business dealings with various named advertisers and installers, agrees to
cooperate with the City in its prosecution and to “use its best efforts to make any of
VANGUARD’s present and former employees and agents available for interviews” and
to “produce documents in its possession, custody, or control relating to the subject
matters of” the present action and the criminal cases, and agrees that “VANGUARD”
could be subject to contempt proceedings for violations. Construing the “clear and
explicit” definition of “VANGUARD” to include the Building Respondents would
“involve an absurdity” (Civ. Code, § 1638), as the Building Respondents did not agree to
be enjoined or to cooperate with Appellants. Indeed, if the release in the VO Judgment
included all agents, representatives and property owners9 as the Building Respondents
suggest, the requirement that “VANGUARD” cooperate with the city attorney’s office
“in its prosecution of the Litigation against the other parties” would be pointless as all
defendants would be encompassed by the broad definition of “VANGUARD” and would
9
The FASC alleged that all defendants acted as “agents, . . . representatives . . . of
each other.”
10
have been released, leaving no “other parties” against whom Appellants could prosecute
the instant litigation. (See Neverkovec, supra, 74 Cal.App.4th at p. 352 [finding a release
terminating all claims for damages to be ambiguous in light of the “curious” provision
requiring repayment for further amounts collected for the injury, which the court noted
could not be expected if the release was operative against anyone liable for plaintiff’s
injuries].)
Likewise, the circumstances under which the VO Stipulation and VO Judgment
were made also do not suggest that Appellants and the VO Defendants intended to benefit
the Building Respondents. Appellants and VO Defendants would obviously have been
aware that Appellants had claims against the Building Respondents and that those claims
were asserted in the same litigation which the VO Stipulation and VO Judgment were
settling. Yet neither the VO Stipulation nor the VO Judgment specifically named the
Building Respondents as parties to be released, suggesting the release was not intended to
cover them. (Hess, supra, 27 Cal.4th at p. 527 [“The failure of the Release to specifically
name [alleged third party beneficiary] even though the signatories to the Release had
counsel and were aware of [plaintiff’s] claims against [the alleged third party beneficiary]
also suggests that the Release did not cover those claims.”].) While generally it is not
necessary for a third party to be specifically named in a release (Garcia v. Truck Ins.
Exchange (1984) 36 Cal. 3d 426, 436), not naming the Building Respondents in a release
when they are named defendants in the same litigation being settled suggests that
Building Respondents are not an intended beneficiary of the release.
Moreover, the circumstances showed that Appellants were not entering into a
global settlement with all defendants of all claims in the FASC; rather Appellants entered
into a series of separate settlements with different groups of named defendants. This
strategy suggests that the VO Stipulation and VO Judgment were not intended to release
the Building Respondents as part of a settlement with VO Defendants. Indeed, after the
VO Stipulation and VO Judgment, Appellants and Building Respondents filed a Time
Stipulation seeking additional time for mediation, suggesting that the intent was to have a
11
separate settlement with the Building Respondents.10 These circumstances likewise
suggest that the parties did not intend the VO Stipulation and VO Judgment to release the
Building Respondents.
In short, reading the VO Stipulation and VO Judgment in light of the
circumstances under which they were entered, we conclude the Building Respondents
were not intended beneficiaries of the release. Because we reach our conclusion without
reference to the Supplemental Stipulation, we do not address Appellants’ contention that
the trial court erred in not considering the Supplemental Stipulation and the concurrently
filed proposed amended judgment.
To the extent the Building Respondents contend that VO Defendants “insist[ed]”
upon or intentionally added the broad language to protect it against indemnification
claims from agents, representatives and property owners, these assertions are unsupported
by any citation to the record and we therefore decline to address them. (See In re
Marriage of Falcone & Fyke (2008) 164 Cal. App. 4th 814, 826, 830.)
II. Installer Respondents
Appellants contend that the trial court erred in taking judicial notice of the truth of
the Caltrans Settlement’s contents. Appellants also assert that the trial court erred in
sustaining Installer Respondents’ demurrer arguing that res judicata bars this action. We
agree that res judicata does not bar this action and reverse.11
10
The language of the Time Stipulation also suggests that the VO Stipulation and
VO Judgment were not intended to benefit Building Respondents. The Time Stipulation
stated that settlement negotiations had resulted in “the successful resolution of this
matter, by way of stipulated judgments, as to each of the following defendants:
VANGUARD OURTDOOR, LLC, a California limited liability company; PAMELA K.
ANDERSON, an individual; [and other installer and building defendants]” and “the
remaining [Building Respondents] and [Appellants] still desire to participate in mediation
but were not able to reach an agreement on a private mediator until recently . . . .” The
Time Stipulation was signed by Appellants and Building Respondents.
11
We hereby grant Appellants’ unopposed April 17, 2014 Request for Judicial
Notice of the unpublished opinion by Division Three of this district in People v. World
Wide Mediacom (Mar. 5, 2014, B241365). (Evid. Code, §§ 452, subd. (d) & 459;
12
Preliminarily, we note that there is no indication that the trial court took judicial
notice of the truth of the contents of the Caltrans Settlement. Rather the trial court could
properly take notice of the Caltrans Settlement and consider whether its res judicata
effect barred litigation of the claims against the Installer Respondents in this action. (See
Sosinsky v. Grant (1992) 6 Cal. App. 4th 1548, 1569 [“Whether a factual finding is true is
a different question than whether the truth of that factual finding may or may not be
subsequently litigated a second time.”].)
We turn to the preclusive effect of the Caltrans Settlement. “The doctrine of res
judicata rests upon the ground that the party to be affected, or some other with whom he
is in privity, has litigated, or had an opportunity to litigate the same matter in a former
action in a court of competent jurisdiction, and should not be permitted to litigate it again
to the harassment and vexation of his opponent. Public policy and the interest of litigants
alike require that there be an end to litigation.” (Citizens for Open Access etc. Tide, Inc.
v. Seadrift Assn. (1998) 60 Cal. App. 4th 1053, 1065.) “[R]es judicata benefits both the
parties and the courts because it ‘seeks to curtail multiple litigation causing vexation and
expense to the parties and wasted effort and expense in judicial administration.’”
(Mycogen Corp. v. Monsanto Co. (2002) 28 Cal. 4th 888, 897.)
For res judicata to apply to the Caltrans Settlement, it must satisfy three elements:
1) “‘[T]he issues decided in the prior adjudication are identical with those
presented in the later action;’”
2) “‘[T]here was a final judgment on the merits in the prior action; and’”12
3) “‘[T]he party against whom the plea is raised was a party or was in privity with
a party to the prior adjudication.’”
(Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal. App. 4th 675, 685-
686 (“CAG”); see Boeken v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 788, 797.) “Even
Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057, 1063 [judicial notice
permissible for documents at least minimally relevant to the instant appeal].)
12
Appellants do not dispute that the requirement that there be a final judgment on
the merits was met.
13
if these threshold requirements are established,” res judicata does not apply “if injustice
would result or if the public interest requires that relitigation not be foreclosed.” (CAG,
supra, 168 Cal.App.4th at p. 686.)
Likewise, even if there is the same cause of action and sufficient identity of
parties, res judicata would still not apply where there is a “statutory scheme of remedies
that contemplates proceedings in different tribunals affording different remedies which
are cumulative, not mutually exclusive.” (People v. Damon (1996) 51 Cal. App. 4th 958,
964, 968, 970-971.) Where “the administrative and civil provision afford cumulative
remedies which cannot all be sought in one proceeding, the statutory scheme plainly
envisions that both an administrative proceeding and a civil action may be brought” and
res judicata is inapplicable. (Id. at p. 972; see Le Parc Community Assn. v. Workers’
Comp. Appeals Bd. (2003) 110 Cal. App. 4th 1161, 1170 [“An important exception to the
general rule of indivisibility of a primary right permits a second action on a different
legal theory if the plaintiff was precluded from asserting that theory in the first action
because of limitations on the subject matter jurisdiction of the first forum.”].)
Here, the statutory scheme contemplates proceedings in different tribunals
affording different remedies which are cumulative, not mutually exclusive. Section
17205 of the UCL provides that “the remedies or penalties provided by this chapter are
cumulative to each other and to the remedies or penalties available under all other laws of
this state.” (Bus. & Prof. Code, § 17205, italics added.) Likewise, the OAA provides
that the remedies for the removal of illegal advertising displays “are cumulative and not
exclusive of any other remedies provided by law.” (OAA, § 5465.)
The UCL “authorizes duplicate enforcement by both public prosecutors and
administrative agencies—a UCL action by law enforcement officials does not preclude a
later administrative proceeding against the same defendant concerning the same conduct,
and an administrative proceeding does not preclude a later law enforcement action under
the UCL.” (Blue Cross of California, Inc. v. Super. Ct. (2009) 180 Cal. App. 4th 1237,
1250.) The OAA contemplates that entities other than Caltrans will enforce its
provisions. Specifically, it provides that the city or county may enact ordinances “equal
14
to or greater than those imposed by” the OAA and nothing in the OAA “prohibits
enforcement of any or all of its provisions by persons designated so to act by appropriate
ordinances duly adopted.” (OAA, §§ 5227, 5230.)
Moreover, UCL claims like those raised in the FASC must be “prosecuted
exclusively in a court of competent jurisdiction” and therefore could not have brought in
the Caltrans administrative action. (Bus. & Prof. Code, § 17204.) Section 17204 of the
UCL “authorizes an assortment of persons to bring enforcement actions but prohibits
enforcement of section 17200 in noncourt proceedings and in courts that lack competent
jurisdiction.”13 (Greenlining Institute v. Public Utilities Com. (2002) 103 Cal. App. 4th
1324, 1330, italics added.) An exception to the rule against splitting causes of action
exists where the “‘plaintiff was unable to rely on a certain theory of the case or to seek a
certain remedy or form of relief in the first action because of the limitations on the
subject matter jurisdiction of the courts or restrictions on their authority to entertain
multiple theories or demands for multiple remedies or forms of relief in a single action,
and the plaintiff desires in the second action to rely on that theory or to seek that remedy
or form of relief . . . .’” (People v. Damon, supra, 51 Cal.App.4th at p. 974 [citing
Rest.2d Judgments, § 26, subd. (1)(C), pp. 233-234; 7 Witkin, Cal. Procedure, (3d ed.
1985) Judgment, § 248, p. 686].) As the statutory scheme affords “cumulative remedies
which cannot all be sought in one proceeding, the statutory scheme plainly envisions that
both an administrative proceeding and a civil action may be brought.” (Id. at p. 972.)
Accordingly, res judicata is inapplicable. (Ibid.)
Finally, as to Installer Respondents’ argument that the contractual language of the
Caltrans Settlement bars Appellants’ claims in the FASC, we find the argument to be
without merit. The Caltrans Settlement involved installation of supergraphics at locations
not at issue in this action. To the extent Installer Respondents rely on the broad language
13
Section 17204, however, does not authorize Caltrans as an administrative
agency to enforce the UCL in court; rather, only the Attorney General, District Attorney,
County Attorney or City Attorney may prosecute under the section. (Bus. & Prof. Code,
§ 17024.)
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of the release to include release of the UCL claims, the release does not bar this action as
an administrative agency cannot create jurisdiction over claims where jurisdiction does
not exist. (Greenlinings, supra, 103 Cal.App.4th at p. 1332 [“Even if the [administrative
agency] had adjudicated UCL claims, the [agency] cannot create jurisdiction where it
does not otherwise exist.”]; see City and County of San Francisco v. Padilla (1972) 23
Cal. App. 3d 388, 400-401 [“when an administrative agency acts without or in excess of its
jurisdiction, or in violation of the powers conferred upon it, its action thus taken is
void”].)
We conclude that res judicata does not bar Appellants’ prosecution against the
Installer Respondents in the instant action.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its September 11,
2012 Order granting Building Respondents’ motion for judgment on the pleadings and to
enter a new order denying the motion. The trial court is also directed to vacate its August
24, 2012 order sustaining Installer Respondents’ demurrer to the FASC and to enter a
new order overruling the demurrer.
Appellants shall recover their costs on appeal.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, Acting P. J.
JOHNSON, J.
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