Preview
Ramin Azadegan, Esq. [SBN 131402]
1 Michael Yellin, Esq. [SBN 255050]
AZADEGAN LAW GROUP, APC
2 9100 Wilshire Boulevard, Suite 710E
Beverly Hills, California 90212
3 Telephone: (310) 271-4800
Facsimile: (310) 271-4088
4
5 Attorneys for Plaintiff,
MARIA AZARI
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
FOR THE COUNTY OF SANTA BARBARA
8
MARIA AZARI, an individual, CASE NO. 22CV01556
9
Plaintiff, (Assigned to Judge Donna D. Geck in Dept. 4
10 for all purposes)
11 vs.
PLAINTIFF MARIA AZARI’S
12 OPPOSITION TO DEFENDANT’S
COVENANT LIVING WEST, INC., a MOTION FOR JUDGMENT ON THE
13 California corporation; and DOES 1 through PLEADINGS
50, Inclusive,
14 Date: April 19, 2024
15 Defendants. Time: 10:00 am.
16
Complaint Filed: April 22, 2022
17 Trial Date: Not Yet Set
18
POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION TO FOR
19
JUDGMENT ON THE PLEADINGS
20
I. INTRODUCTION
21
Defendant’s Motion for Judgment on the Pleadings is chock full of misdirection, internally
22
inconsistent argument that this Court must reject. In truth, in accord with Code of Civil Procedure
23
section 128 et seq., this motion should never have been brought. Defendant makes no cogent
24
argument in regard to the “primary right” theory and how Plaintiff’s 1102.5 claims involve the same
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primary right as that in the Lopez matter. The “primary rights” theory, as will be show herein below,
26
looks at the harm suffered. At bar, Plaintiff’s harm differs from the harm suffered in Lopez.
27
Accordingly, Defendant’s motion must be denied as to Plaintiff’s only remaining claim for retaliation.
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1
A ZADEGAN L AW
G ROUP APC OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
ATTORNEYS AT LAW
1 II. FACTUAL ASSERTIONS
2 Plaintiff, for the most part, incorporates by reference the “Introduction” portion of
3 Defendant’s moving papers. In fact, Plaintiff agrees with nearly all of Defendant’s authority, and
4 argument, except the portion of argument regarding the “primary rights” doctrine as well as that all
5 of Plaintiff’s claims are subject to res judicata as a result of the class settlement in the Renee Lopez
6 v. Covenant Living West, et al., Stanislaus County Superior Court Case No. CV-21-001160 (“Lopez”)
7 (Mot. Sections II (B)(2).) As such, Plaintiff addresses the “primary rights” doctrine exclusively. It
8 should be noted that Plaintiff will, in advance of the hearing on the instant motion, dismiss the vast
9 majority of her claims because of the res judicata effect of the Lopez matter.
10 III. ARGUMENT
11 Perhaps interestingly, Defendant rightly argues that legal theories and the labels assigned to
12 claims are not determinative, but instead “one injury gives rise to only one claim for relief” (Mot. 19-
13 25.) This, Defendant argues, is the definition of a “primary right.” (Id.) Yet, the remainder of
14 Defendant’s argument regarding the similarities of the “primary rights” in the instant matter and the
15 Lopez matter talks strictly about the legal theories and facts of both cases, using the term “theory” no
16 less than six times within three paragraphs of argument, culminating with Defendant conflating, after
17 arguing otherwise, that “the facts supporting [Plaintiff’s retaliation claim under Labor Code section
18 1102.5] that theory of recovery clearly indicates that it also arises from the same primary right sought
19 to be vindicated…” in Plaintiff’s complaint. (Mot. pg. 6, lns. 15-18.) As such, Defendant has fatally
20 undermined its own argument.
21 A. The Harm Plaintiff Suffered Is Different Than All Harms Suffered By The Class
22 In accord with Defendant’s authority, and as will be shown herein below, the “primary right”
23 of a claim is based on the harm suffered. In reviewing the various causes of action/primary rights
24 alleged in both the case at bar and the Lopez matter, Plaintiff’s 1102.5 claim does not involve the
25 same primary right as any of the primary rights of the Lopez matter.
26 The harms suffered in the Lopez matter exclusively consist of harms of: 1) being paid less
27 than minimum wage; 2) not receiving rest and/or meal breaks; 3) not receiving code compliant wage
28 statements; 4) not receiving timely, final pay; 5) Defendant’s unfair business practices; and 6) not
2
A ZADEGAN L AW
G ROUP APC OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
ATTORNEYS AT LAW
1 receiving penalties for violation of various labor codes by Defendant. However, the harm suffered
2 by Plaintiff here, in regard to her 1102.5 claim, is being terminated/suffering an adverse employment
3 action. Thus, the primary right of Plaintiff’s 1102.5 claim differs from every primary right asserted
4 in the Lopez matter.
5 B. The Primary Right Of Plaintiff’s Claim Differs From Those Of The Lopez Matter
6 In addition, Defendant’s authority and argument are cursory in nature, and fails to delve into
7 the “primary rights” theory, so Plaintiff does. It is important to define the primary rights doctrine as
8 applied to California law. California courts have “applied the ‘primary rights’ doctrine, under which
9 the invasion of one primary right gives rise to a single cause of action.” (Slater v. Blackwood (1975)
10 15 Cal.3d 791, 795; 4 Witkin, Cal. Procedure (4th ed. 1997).) The California Supreme Court in
11 Grisham v. Philip Morris U.S.A., Inc., when reviewing law relating to a statute of limitations defense
12 governing tobacco related personal injury claims, stated “The primary rights theory is a theory of
13 code pleading that has long been followed in California. It provides that a ‘cause of action’ is
14 comprised of a ‘primary rights’ of the plaintiff, a corresponding ‘primary duty’ of the
15 defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.]”
16 (Grisham v. Philip Morris U.S.A., Inc., (2007) 40 Cal.4th 623, 641) (Emphasis added)
17 There is much confusion among practitioners and even the courts regarding the determination
18 of a Plaintiff’s “primary right.” Numerous courts have provided somewhat conflicting and internally-
19 contradictory tests and/or explanations of what, exactly, is a “primary right.” In City of Los Angeles
20 v. Superior Court, the Second District Court of Appeal explained the primary rights theory provides
21 that a cause of action consists of (1) a primary rights possessed by the plaintiff, (2) a corresponding
22 duty devolving upon the defendant, and (3) a delict or wrong done by the defendant which consists
23 of a breach of the primary rights. (City of Los Angeles, v. Superior Court, (1978) 85 Cal.App.3d 143,
24 FN12; Pomeroy, Code Remedies (5th ed.), p. 528.) Years later, the same court stated the “primary
25 rights” is simply the Plaintiff's right to be free from the particular injury suffered.” (Franceschi
26 v. Franchise Tax Bd. (2016) 205 Cal. Rptr. 3d 75, 82-83).
27 Other courts have stated that a plaintiff's primary rights is the right to be free from a particular
28 injury, regardless of the legal theory on which liability for the injury is based. (Federation of Hillside
3
A ZADEGAN L AW
G ROUP APC OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
ATTORNEYS AT LAW
1 and Canyon Associations (2d Dist. 2005) 126 Cal.App.4th 1180, 1203.) The primary right theory
2 has also been explained as follows: the primary rights looks to the harm suffered. Under the “primary
3 rights” theory adhered to in California, there is only a single cause of action for the invasion of one
4 primary rights and the harm suffered is the significant factor. [Citation omitted.] A primary rights is
5 the right to be free of a particular injury. [Citation omitted.] (Cal. Sierra Development, Inc. v. George
6 Reed, Inc. (3d Dist. 2017) 14 Cal.App.5th 663, 675-676 quoting Boeken v. Philip Morris USA, Inc.
7 (Dist. 2010) 48 Cal.4th 788, 798.)
8 Finally, as one case has framed the doctrine:
“The cause of action is the right to obtain redress for harm suffered, regardless of the
9 specific remedy sought or the legal theory (common law or statutory) advanced.
California's res judicata doctrine and its definition of “cause of action” is based upon
10 the primary right theory. The primary right theory is a theory of code pleading that
has long been followed in California. It provides that a ‘cause of action’ is comprised
11 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. …. As far as
12 its content is concerned, the primary right is simply the plaintiff's right to be free
from the particular injury suffered. It must therefore be distinguished from the legal
13 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
14 one claim for relief.’ The primary right must also be distinguished from the remedy
sought: ‘The violation of one primary right constitutes a single cause of action,
15 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.”
16
17 (Franceschi v. Franchise Tax Bd., (2016) 205 Cal. Rptr. 3d 75, 82–83.) This is all juxtaposed to the
18 fundamental focus of primary rights doctrine which is the “right to be free from the particular
19 injury.”(Mycogen Corp. v. Monsanto Co., (2002) 51 P.3d 297, 306.) “[T]he determinative factor is
20 the harm suffered. When two actions involving the same parties seek compensation for the same
21 harm, they generally involve the same primary right.” (Villacres v. ABM Indus. Inc., (2010) 117 Cal.
22 Rptr. 3d 398, 410; Burdette v. Carrier Corp., (2008) 71 Cal. Rptr. 3d 185, 199.)
23 Accordingly, the “primary right” doctrine is most accurately described as a triumvirate of
24 elements: (1) a right, (2) a corresponding duty, and (3) an act, though in most, if not all instances,
25 these elements overlap to a large degree. By way of example, in a tort, Plaintiff has a right to live
26 without being punched, the Defendant has a duty not to punch the Plaintiff, and the “act” is Defendant
27 punching the Plaintiff causing harm.
28
4
A ZADEGAN L AW
G ROUP APC OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
ATTORNEYS AT LAW
1 In regard to the case before this Court, Plaintiff maintains that her claim under Labor Code
2 section 1102.5 is not subject to res judicate as a result of the Lopez settlement. This is so because the
3 “primary right” of Plaintiff’s 1102.5 claim differs from all of the primary rights embodied by the
4 Lopez matter. The “primary right” in Plaintiff’s 1102.5 claim is the statutory right to be free from
5 retaliation. (Labor Code 1102.5 et seq.) Defendant’s “duty” is to refrain from retaliating against
6 Plaintiff after she engaged in protected activity, and the “act” (and “harm”/“injury”) is terminating
7 Plaintiff’s employment and Plaintiff’s resultant loss of income. None of the above is present in any
8 of the primary rights in the Lopez complaint.
9 It matters not that the protected conduct Plaintiff engaged in, to wit, complaining about the
10 wage and hour violations being perpetrated by Defendants, may regard primary rights asserted in
11 the Lopez matter, (Mot. pg. 6, lns. 10-18.) because one must look at the primary right (Defendant’s
12 duty, Plaintiff’s right, and the harms visited upon Plaintiff by Defendant in the act of terminating
13 Plaintiff) of Plaintiff’s claims, and in this case, Plaintiff’s 1102.5 claim. As the primary rights differ,
14 Plaintiff’s 1102.5 claim is not subject to res judicata.
15 IV. CONCLUSION
16 As expressed herein above, Defendant’s Motion for Judgment on the Pleadings must be
17 denied. Plaintiff’s Labor Code 1102.5 causes of action for retaliation involves a primary right that
18 is not shared by any of the primary rights underpinning the Lopez matter, and therefore, res
19 judicata does not attach to Plaintiff’s claims.
20
21 DATED: April 8, 2024 THE AZADEGAN LAW GROUP, APC.
22
23 By:
Michael Yellin
24 Michael Yellin, Esq.
Attorneys for Plaintiff,
25 MARIA AZARI
26
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5
A ZADEGAN L AW
G ROUP APC OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS
ATTORNEYS AT LAW
PROOF OF SERVICE
1 (C.C.P. §§ 1013(a) and 2015.5)
2
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3
I am employed in the County of Los Angeles, State of California. I am over the age of 18
4 and not a party to the within action; my business address is 9100 Wilshire Blvd., Suite 710E
Beverly Hills, CA 90212.
5
On December 4, 2023, I served the foregoing document entitled PLAINTIFF MARIA
6 AZARI’S OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE
PLEADINGS on all interested parties in this action, by placing that document in sealed envelopes
7 addressed as follows:
8 SEE ATTACHED SERVICE LIST
9
BY MAIL - Pursuant to CCP §1013 (a) and (b), I caused such envelopes to be deposited in
10 the mail at Beverly Hills, California. The envelopes were mailed with postage thereon
fully prepaid. I am “readily familiar” with the firm’s practice of collection and processing
11 correspondence for mailing. It is deposited with the U.S. Postal Service on that same day
in the ordinary course of business. I am aware that on motion of party served, service is
12 presumed invalid if postal cancellation date or postage meter date is more than 1 day after
13 the date of deposit for mailing in affidavit.
14 BY PERSONAL SERVICE - Pursuant to CCP §1011, I delivered such envelope(s) by
hand to the offices of the addressee(s).
15
BY FACSIMILE - Pursuant to CCP §1013(e) and (f) and CRC Rule 2.306, I caused said
16 documents to be transmitted via facsimile to the fax number(s) indicated above.
17
X BY E-MAIL (to parties indicated on attached service list) - Pursuant to CCP §1013(g) and
18 CRC Rule 2.251, I caused said documents to be transmitted via e-mail to the e-mail
addresses indicated on the attached service list.
19
BY USPS OVERNIGHT (to parties indicated on attached service list) - I placed the
20 document in a prepaid, pre-addressed envelope and deposited such envelope for pick-up in
21 Beverly Hills, California before the scheduled pick-up time.
22 X STATE - I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
23
Executed on April 8, 2024 at Beverly Hills, California.
24
25
26 Michael Yellin
Michael Yellin
27
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1
A ZADEGAN L AW PROOF OF SERVICE
G ROUP APC
ATTORNEYS AT LAW
SERVICE LIST
1 VIA E-MAIL TO:
2 Timothy C. Travelstead, Esq.
Scott C. Ku, Esq.
3 Winifred Y. Chan, Esq.
NARAYAN TRAVELSTEAD P.C.
4 7901 Stoneridge Dr., Suite 230
Pleasanton, CA 94588
5 E-Mail: t.travelstead@narayantravelstead.com; s.ku@narayantravelstead.com;
6 w.chan@narayantravelstead.com;
Counsel for Defendants
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PROOF OF SERVICE
Preview
Ramin Azadegan, Esq. [SBN 131402] 1 Michael Yellin, Esq. [SBN 255050] AZADEGAN LAW GROUP, APC 2 9100 Wilshire Boulevard, Suite 710E Beverly Hills, California 90212 3 Telephone: (310) 271-4800 Facsimile: (310) 271-4088 4 5 Attorneys for Plaintiff, MARIA AZARI 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 FOR THE COUNTY OF SANTA BARBARA 8 MARIA AZARI, an individual, CASE NO. 22CV01556 9 Plaintiff, (Assigned to Judge Donna D. Geck in Dept. 4 10 for all purposes) 11 vs. PLAINTIFF MARIA AZARI’S 12 OPPOSITION TO DEFENDANT’S COVENANT LIVING WEST, INC., a MOTION FOR JUDGMENT ON THE 13 California corporation; and DOES 1 through PLEADINGS 50, Inclusive, 14 Date: April 19, 2024 15 Defendants. Time: 10:00 am. 16 Complaint Filed: April 22, 2022 17 Trial Date: Not Yet Set 18 POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION TO FOR 19 JUDGMENT ON THE PLEADINGS 20 I. INTRODUCTION 21 Defendant’s Motion for Judgment on the Pleadings is chock full of misdirection, internally 22 inconsistent argument that this Court must reject. In truth, in accord with Code of Civil Procedure 23 section 128 et seq., this motion should never have been brought. Defendant makes no cogent 24 argument in regard to the “primary right” theory and how Plaintiff’s 1102.5 claims involve the same 25 primary right as that in the Lopez matter. The “primary rights” theory, as will be show herein below, 26 looks at the harm suffered. At bar, Plaintiff’s harm differs from the harm suffered in Lopez. 27 Accordingly, Defendant’s motion must be denied as to Plaintiff’s only remaining claim for retaliation. 28 1 A ZADEGAN L AW G ROUP APC OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS ATTORNEYS AT LAW 1 II. FACTUAL ASSERTIONS 2 Plaintiff, for the most part, incorporates by reference the “Introduction” portion of 3 Defendant’s moving papers. In fact, Plaintiff agrees with nearly all of Defendant’s authority, and 4 argument, except the portion of argument regarding the “primary rights” doctrine as well as that all 5 of Plaintiff’s claims are subject to res judicata as a result of the class settlement in the Renee Lopez 6 v. Covenant Living West, et al., Stanislaus County Superior Court Case No. CV-21-001160 (“Lopez”) 7 (Mot. Sections II (B)(2).) As such, Plaintiff addresses the “primary rights” doctrine exclusively. It 8 should be noted that Plaintiff will, in advance of the hearing on the instant motion, dismiss the vast 9 majority of her claims because of the res judicata effect of the Lopez matter. 10 III. ARGUMENT 11 Perhaps interestingly, Defendant rightly argues that legal theories and the labels assigned to 12 claims are not determinative, but instead “one injury gives rise to only one claim for relief” (Mot. 19- 13 25.) This, Defendant argues, is the definition of a “primary right.” (Id.) Yet, the remainder of 14 Defendant’s argument regarding the similarities of the “primary rights” in the instant matter and the 15 Lopez matter talks strictly about the legal theories and facts of both cases, using the term “theory” no 16 less than six times within three paragraphs of argument, culminating with Defendant conflating, after 17 arguing otherwise, that “the facts supporting [Plaintiff’s retaliation claim under Labor Code section 18 1102.5] that theory of recovery clearly indicates that it also arises from the same primary right sought 19 to be vindicated…” in Plaintiff’s complaint. (Mot. pg. 6, lns. 15-18.) As such, Defendant has fatally 20 undermined its own argument. 21 A. The Harm Plaintiff Suffered Is Different Than All Harms Suffered By The Class 22 In accord with Defendant’s authority, and as will be shown herein below, the “primary right” 23 of a claim is based on the harm suffered. In reviewing the various causes of action/primary rights 24 alleged in both the case at bar and the Lopez matter, Plaintiff’s 1102.5 claim does not involve the 25 same primary right as any of the primary rights of the Lopez matter. 26 The harms suffered in the Lopez matter exclusively consist of harms of: 1) being paid less 27 than minimum wage; 2) not receiving rest and/or meal breaks; 3) not receiving code compliant wage 28 statements; 4) not receiving timely, final pay; 5) Defendant’s unfair business practices; and 6) not 2 A ZADEGAN L AW G ROUP APC OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS ATTORNEYS AT LAW 1 receiving penalties for violation of various labor codes by Defendant. However, the harm suffered 2 by Plaintiff here, in regard to her 1102.5 claim, is being terminated/suffering an adverse employment 3 action. Thus, the primary right of Plaintiff’s 1102.5 claim differs from every primary right asserted 4 in the Lopez matter. 5 B. The Primary Right Of Plaintiff’s Claim Differs From Those Of The Lopez Matter 6 In addition, Defendant’s authority and argument are cursory in nature, and fails to delve into 7 the “primary rights” theory, so Plaintiff does. It is important to define the primary rights doctrine as 8 applied to California law. California courts have “applied the ‘primary rights’ doctrine, under which 9 the invasion of one primary right gives rise to a single cause of action.” (Slater v. Blackwood (1975) 10 15 Cal.3d 791, 795; 4 Witkin, Cal. Procedure (4th ed. 1997).) The California Supreme Court in 11 Grisham v. Philip Morris U.S.A., Inc., when reviewing law relating to a statute of limitations defense 12 governing tobacco related personal injury claims, stated “The primary rights theory is a theory of 13 code pleading that has long been followed in California. It provides that a ‘cause of action’ is 14 comprised of a ‘primary rights’ of the plaintiff, a corresponding ‘primary duty’ of the 15 defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.]” 16 (Grisham v. Philip Morris U.S.A., Inc., (2007) 40 Cal.4th 623, 641) (Emphasis added) 17 There is much confusion among practitioners and even the courts regarding the determination 18 of a Plaintiff’s “primary right.” Numerous courts have provided somewhat conflicting and internally- 19 contradictory tests and/or explanations of what, exactly, is a “primary right.” In City of Los Angeles 20 v. Superior Court, the Second District Court of Appeal explained the primary rights theory provides 21 that a cause of action consists of (1) a primary rights possessed by the plaintiff, (2) a corresponding 22 duty devolving upon the defendant, and (3) a delict or wrong done by the defendant which consists 23 of a breach of the primary rights. (City of Los Angeles, v. Superior Court, (1978) 85 Cal.App.3d 143, 24 FN12; Pomeroy, Code Remedies (5th ed.), p. 528.) Years later, the same court stated the “primary 25 rights” is simply the Plaintiff's right to be free from the particular injury suffered.” (Franceschi 26 v. Franchise Tax Bd. (2016) 205 Cal. Rptr. 3d 75, 82-83). 27 Other courts have stated that a plaintiff's primary rights is the right to be free from a particular 28 injury, regardless of the legal theory on which liability for the injury is based. (Federation of Hillside 3 A ZADEGAN L AW G ROUP APC OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS ATTORNEYS AT LAW 1 and Canyon Associations (2d Dist. 2005) 126 Cal.App.4th 1180, 1203.) The primary right theory 2 has also been explained as follows: the primary rights looks to the harm suffered. Under the “primary 3 rights” theory adhered to in California, there is only a single cause of action for the invasion of one 4 primary rights and the harm suffered is the significant factor. [Citation omitted.] A primary rights is 5 the right to be free of a particular injury. [Citation omitted.] (Cal. Sierra Development, Inc. v. George 6 Reed, Inc. (3d Dist. 2017) 14 Cal.App.5th 663, 675-676 quoting Boeken v. Philip Morris USA, Inc. 7 (Dist. 2010) 48 Cal.4th 788, 798.) 8 Finally, as one case has framed the doctrine: “The cause of action is the right to obtain redress for harm suffered, regardless of the 9 specific remedy sought or the legal theory (common law or statutory) advanced. California's res judicata doctrine and its definition of “cause of action” is based upon 10 the primary right theory. The primary right theory is a theory of code pleading that has long been followed in California. It provides that a ‘cause of action’ is comprised 11 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. …. As far as 12 its content is concerned, the primary right is simply the plaintiff's right to be free from the particular injury suffered. It must therefore be distinguished from the legal 13 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 14 one claim for relief.’ The primary right must also be distinguished from the remedy sought: ‘The violation of one primary right constitutes a single cause of action, 15 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.” 16 17 (Franceschi v. Franchise Tax Bd., (2016) 205 Cal. Rptr. 3d 75, 82–83.) This is all juxtaposed to the 18 fundamental focus of primary rights doctrine which is the “right to be free from the particular 19 injury.”(Mycogen Corp. v. Monsanto Co., (2002) 51 P.3d 297, 306.) “[T]he determinative factor is 20 the harm suffered. When two actions involving the same parties seek compensation for the same 21 harm, they generally involve the same primary right.” (Villacres v. ABM Indus. Inc., (2010) 117 Cal. 22 Rptr. 3d 398, 410; Burdette v. Carrier Corp., (2008) 71 Cal. Rptr. 3d 185, 199.) 23 Accordingly, the “primary right” doctrine is most accurately described as a triumvirate of 24 elements: (1) a right, (2) a corresponding duty, and (3) an act, though in most, if not all instances, 25 these elements overlap to a large degree. By way of example, in a tort, Plaintiff has a right to live 26 without being punched, the Defendant has a duty not to punch the Plaintiff, and the “act” is Defendant 27 punching the Plaintiff causing harm. 28 4 A ZADEGAN L AW G ROUP APC OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS ATTORNEYS AT LAW 1 In regard to the case before this Court, Plaintiff maintains that her claim under Labor Code 2 section 1102.5 is not subject to res judicate as a result of the Lopez settlement. This is so because the 3 “primary right” of Plaintiff’s 1102.5 claim differs from all of the primary rights embodied by the 4 Lopez matter. The “primary right” in Plaintiff’s 1102.5 claim is the statutory right to be free from 5 retaliation. (Labor Code 1102.5 et seq.) Defendant’s “duty” is to refrain from retaliating against 6 Plaintiff after she engaged in protected activity, and the “act” (and “harm”/“injury”) is terminating 7 Plaintiff’s employment and Plaintiff’s resultant loss of income. None of the above is present in any 8 of the primary rights in the Lopez complaint. 9 It matters not that the protected conduct Plaintiff engaged in, to wit, complaining about the 10 wage and hour violations being perpetrated by Defendants, may regard primary rights asserted in 11 the Lopez matter, (Mot. pg. 6, lns. 10-18.) because one must look at the primary right (Defendant’s 12 duty, Plaintiff’s right, and the harms visited upon Plaintiff by Defendant in the act of terminating 13 Plaintiff) of Plaintiff’s claims, and in this case, Plaintiff’s 1102.5 claim. As the primary rights differ, 14 Plaintiff’s 1102.5 claim is not subject to res judicata. 15 IV. CONCLUSION 16 As expressed herein above, Defendant’s Motion for Judgment on the Pleadings must be 17 denied. Plaintiff’s Labor Code 1102.5 causes of action for retaliation involves a primary right that 18 is not shared by any of the primary rights underpinning the Lopez matter, and therefore, res 19 judicata does not attach to Plaintiff’s claims. 20 21 DATED: April 8, 2024 THE AZADEGAN LAW GROUP, APC. 22 23 By: Michael Yellin 24 Michael Yellin, Esq. Attorneys for Plaintiff, 25 MARIA AZARI 26 27 28 5 A ZADEGAN L AW G ROUP APC OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS ATTORNEYS AT LAW PROOF OF SERVICE 1 (C.C.P. §§ 1013(a) and 2015.5) 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles, State of California. I am over the age of 18 4 and not a party to the within action; my business address is 9100 Wilshire Blvd., Suite 710E Beverly Hills, CA 90212. 5 On December 4, 2023, I served the foregoing document entitled PLAINTIFF MARIA 6 AZARI’S OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS on all interested parties in this action, by placing that document in sealed envelopes 7 addressed as follows: 8 SEE ATTACHED SERVICE LIST 9 BY MAIL - Pursuant to CCP §1013 (a) and (b), I caused such envelopes to be deposited in 10 the mail at Beverly Hills, California. The envelopes were mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice of collection and processing 11 correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is 12 presumed invalid if postal cancellation date or postage meter date is more than 1 day after 13 the date of deposit for mailing in affidavit. 14 BY PERSONAL SERVICE - Pursuant to CCP §1011, I delivered such envelope(s) by hand to the offices of the addressee(s). 15 BY FACSIMILE - Pursuant to CCP §1013(e) and (f) and CRC Rule 2.306, I caused said 16 documents to be transmitted via facsimile to the fax number(s) indicated above. 17 X BY E-MAIL (to parties indicated on attached service list) - Pursuant to CCP §1013(g) and 18 CRC Rule 2.251, I caused said documents to be transmitted via e-mail to the e-mail addresses indicated on the attached service list. 19 BY USPS OVERNIGHT (to parties indicated on attached service list) - I placed the 20 document in a prepaid, pre-addressed envelope and deposited such envelope for pick-up in 21 Beverly Hills, California before the scheduled pick-up time. 22 X STATE - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 23 Executed on April 8, 2024 at Beverly Hills, California. 24 25 26 Michael Yellin Michael Yellin 27 28 1 A ZADEGAN L AW PROOF OF SERVICE G ROUP APC ATTORNEYS AT LAW SERVICE LIST 1 VIA E-MAIL TO: 2 Timothy C. Travelstead, Esq. Scott C. Ku, Esq. 3 Winifred Y. Chan, Esq. NARAYAN TRAVELSTEAD P.C. 4 7901 Stoneridge Dr., Suite 230 Pleasanton, CA 94588 5 E-Mail: t.travelstead@narayantravelstead.com; s.ku@narayantravelstead.com; 6 w.chan@narayantravelstead.com; Counsel for Defendants 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE