Unpublished Disposition, 927 F.2d 609 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Palani Govindan appeals the dismissal of his federal age discrimination suit against Xerox Corporation, Frank A. Campbell and Richard G. Saez (collectively "Xerox"). The district court dismissed the case because it is barred by res judicata. We affirm.

Xerox terminated Govindan's employment as an engineer in August of 1982. In March of 1984, Govindan joined a class-action suit in the United States District Court for the District of New Jersey. The suit was brought against Xerox alleging age discrimination under the Age Discrimination in Employment Act (ADEA). Govindan filed his first suit on June 8, 1984 in Los Angeles County Superior Court (Govindan v. Xerox Corp., (No. SWC-73426)). In his complaint, Govindan alleged that Xerox breached Govindan's oral employment contract and an implied covenant of good faith. The Govindan I court determined that Xerox had legitimate business reasons for dismissing Govindan and rendered judgment in favor of Xerox. Govindan did not appeal.

While Govindan I was pending, Govindan filed another suit in the same court. The amended complaint alleged various torts, such as fraud, conspiracy and intentional infliction of emotional distress, all related to the earlier dismissal. Summary judgment on the ground of res judicata was entered in favor of Xerox on April 7, 1988. Govindan filed two postjudgment motions after Govindan II. Instead of denying the motions and imposing sanctions, the trial judge accepted a settlement between the parties. Xerox agreed to give up its right to collect costs or fees. Govindan agreed not to file any more lawsuits based on his loss of employment.

After the New Jersey class-action suit was decertified in December of 1988, Govindan filed this suit in the district court in Los Angeles. He alleged termination in violation of the ADEA. The district court dismissed Govindan's suit on the ground of res judicata and imposed a Rule 11 sanction of $1,000.

A final judgment on the merits of an action precludes the parties from relitigating issues that were or could have been raised in the action. Federal Dept. Stores v. Moitie, 452 U.S. 394, 398 (1981). The preclusive effect of a state court judgment on a subsequent federal action is determined under state law. Takahashi v. Board of Trustees of Livingston Union School Dist., 783 F.2d 848, 850 (9th Cir.), cert. denied, 476 U.S. 1182 (1986). Under California law, a subsequent action is barred if (1) there has been a final judgment on the merits (2) rendered by a court of competent jurisdiction (3) between the same parties (4) upon the same cause of action. Busick v. Workmen's Comp. Appeals Bd., 7 Cal. 3d 967, 973, 104 Cal. Rptr. 42, 46 (1972). The harm suffered, not the legal theory asserted, determines what is a single cause of action under California law. Slater v. Blackwood, 15 Cal. 3d 791, 795, 126 Cal. Rptr. 225, 226 (1975).

Both suits challenge the conduct of the defendants in terminating the plaintiff's employment. Govindan admitted he could have brought, but failed to bring, his ADEA claim in state court. [See ER at 23-24.] Therefore, Govindan's federal cause of action is barred. See Langston v. Insurance Co. of No. Am., 827 F.2d 1044, 1047-49 (5th Cir. 1987).

Appellees' request for sanctions on appeal is denied. The district court is AFFIRMED.