ADJ8023051 · November 22, 2021

The WCJ and WCAB found that defendant Bovee was not in privity with McCandless, the party to the prior C&R, and therefore res judicata did not bar the applicant's claim against Bovee.

From the decision · page 1Defendant seeks reconsideration of the Findings and Order issued on August 24, 2021 by a workers' compensation administrative law judge (WCJ). The WCJ found and ordered that applicant's claim against Bovee is not barred by the doctrine of res judicata.

Bovee was not a party to the June 1, 2015 Compromise and Release with McCandless.

Favours Applicant prevailed

Because Bovee was not a party to the C&R, he could not be bound by it for res judicata purposes.

From the decision · page 3Here, there is no evidence to support that Bovee, an alleged employer of the Applicant was in privity with McCandless the homeowner with whom he contracted to provide roofing services. The facts do not support that Bovee could have controlled the action herein. Moreover, his interests could not adequately be represented by McCandless, since it is axiomatic that the dispute of employment was uniquely different to both parties. Finally, there is no evidence that Bovee is a successor in interest to McCandless, the homeowner. Therefore, the doctrine of res judicata does not apply to Bovee who was not a patty to the C&R and is not in privity with McCandless.

There was no evidence that Bovee and McCandless were in privity or had an interdependent relationship regarding the subject matter of the litigation.

Favours Applicant prevailed

Without privity or interdependence, res judicata does not apply to Bovee.

Applicant testified that he was hired by Bovee and considered Bovee to be his employer.

Favours Applicant prevailed

Applicant's testimony supported that Bovee was not represented by McCandless in the prior C&R and was a separate employer.

Labor Code section 3600

An employer's duty to provide workers' compensation benefits arises from Labor Code section 3600, which imposes joint and several liability on all employers of the injured worker.

The duty applies to any and all employers of the injured worker, and their liability is joint and several, but joint and several liability alone does not create privity for res judicata purposes.

From the decision · page 6An employer's duty to provide workers' compensation benefits arises from Labor Code section 36006, which states that in cases where the "conditions of compensation" are present, "[l]iability for the compensation provided by this division...shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment..." (Lab. Code, § 3600.) This duty to provide compensation applies to any and all employers of the injured worker, and their liability is joint and several.7

DKN v. Workers' Comp. Appeals Bd., 61 Cal.4th 813

Claim preclusion applies only to the relitigation of the same cause of action between the same parties or those in privity with them.

The court held that joint and several liability does not create privity, and that privity requires an identity or community of interest with adequate representation in the first suit.

From the decision · page 6"[C]laim preclusion applies only to the relitigation of the same cause of action between the same parties or those in privity with them." (DKN, supra, 61 Cal.4th., at p. 825, emphasis in the original.) Bovee was not a party to the C&R, nor in privity with McCandless: "[j]oint and several liability alone does not create such a closely aligned interest between co-obligors [for privity]. The liability of each joint and several obligor is separate and independent, not vicarious or derivative." (DKN, supra, 61 Cal.4th at p. 826, emphasis added.) Therefore, and contrary to Bovee's apparent contention, whether applicant's claims "involve the same primary right is beside the point. (citation)" (Ibid.) "[J]oint and several liability does not implicate the "primary rights" doctrine." (Id., at p. 818.) "This conclusion is entirely consistent with the settled rule that joint and several obligors may be sued in separate actions. (citation)." (Ibid.)

Castillo v. Glenair, Inc., 23 Cal.App.5th 262

Privity requires sharing an identity or community of interest with adequate representation in the first suit, and circumstances such that the nonparty should reasonably have expected to be bound by the first suit.

The court in Castillo found privity based on an interdependent relationship with respect to payment of wages and agency relationship, which was not present here.

From the decision · page 4Defendant did not present any evidence or testimony to support any interdependence between McCandless and Bovee. As such, even under a subject matter analysis, the undersigned does not find the parties were in privity. Defendant cites to this WCJ's citing of an employment dispute as between the parties. This was but one factor supporting a lack of interdependence and that the parties' interests were at odds with one another. Moreover, if the parties were in privity as alleged, Defendant could have presented McCandless as a witness. Instead, the only argument presented to support the parties were privies is that the subject matter is the same. Moreover, the Castillo court also defined privity as "the sharing of `an identity or community of interest,' with `adequate representation' of that interest in the first suit, and circumstances such that the nonparty `should reasonably have expected to be bound' by the first suit. Castillo supra at 277.

Applicant's testimony that he was hired by Bovee and considered Bovee to be his employer, and the lack of evidence of privity between Bovee and McCandless.