1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 VIVI R. STAFFORD, MD, an individual, CASE NO. 1:19-CV-00168-AWI-EPG

6 Plaintiff,

ORDER ON DEFENDANTS’ MOTION

7 v. TO DISMISS OR, IN THE

ALTERNATIVE, STAY THE ACTION

8 AVENAL COMMUNITY HEALTH UNDER THE COLORADO RIVER CENTER; KHUONG PHUI, D.O.; and ABSTENTION DOCTRINE 9 DOES 1 through 5,

10 Defendants. (Doc. No. 27)

11 12 13 INTRODUCTION 14 Plaintiff Vivi Stafford (“Plaintiff” or “Stafford”) brought an action in the Fresno County 15 Superior Court (the “State Court Action”) alleging claims for, inter alia, discrimination, 16 harassment and retaliation in violation of California law against her former employer, Avenal 17 Community Health Center (“Avenal”). Stafford then filed this action (the “Federal Action”) 18 against Avenal and Defendant, Khuong Phui (“Phui”)1 for violations of 42 U.S.C.A. § 1981. In 19 the instant motion, Defendants move to dismiss or stay this action pursuant to the Colorado River 20 doctrine, in deference to the State Court Action. For the reasons stated below, the motion will be 21 granted and this action will be stayed pending resolution of the State Court Action. 22 BACKGROUND 23 On November 9, 2017, Stafford filed the State Court Action against Avenal for race 24 discrimination, harassment, retaliation, and failure to prevent such conduct in violation of 25 California’s Fair Employment and Housing Act (“FEHA”). 2 See Doc. No. 29, Ex. 1 ¶¶ 58-67, 68- 26 1 Avenal and Phui are referred to collectively herein as “Defendants.” 27 2 Defendants request that the Court take judicial notice of the complaint in this action, Doc. No. 29 ¶ 4, Ex. 4, and of several records filed in the State Court Action including: (i) the complaint, Doc. No. 29 ¶ 1, Ex. 1; (ii) the 28 Superior Court’s October 24, 2018 Order on Avenal’s Motion to Compel Plaintiff’s Deposition Testimony, id. ¶ 2, Ex. 1 77, 78-87, 88-94, 145-154. Stafford also alleged several non-FEHA causes of action, including 2 breach of contract, slander and “intentional misrepresentation” based on the same series of events. 3 See id., pp. 9-26. 4 The complaint in the State Court Action (the “State Court Complaint”) alleges, inter alia, 5 that: 6 (i) an Avenal “computer tech” by the name of Michael predicted that Stafford’s 7 employment with Avenal would only last six months, Doc. No. 29, Ex. 1, p. 3 ¶ 17; 8 (ii) an Avenal employee by the name of Christina “referred to herself as being half 9 white and half black” and told Stafford that being thought of as “half white and half 10 black” was “disgusting,” id., Ex. 1, p. 3 ¶ 17 & p. 6 ¶ 33; 11 (iii) an Avenal medical assistant by the name of Betty asked Stafford why she did not 12 wear a wig like another African-American employee at Avenal, id., Ex.1, p. 4 ¶ 21; 13 (iv) a computer software manager at Avenal threw a pen at Stafford, id., Ex. 1, p. 4 ¶ 14 24; 15 (v) Stafford received a group text message containing the word “nigga,” id., Ex. 1, p. 5 16 ¶ 28 & Ex. D; 17 (vi) as Avenal’s medical director, Phui treated Stafford unfairly in the peer review 18 process, id., Ex. 1, pp. 5-6 ¶¶ 29, 33-34; 19 (vii) Avenal failed to include Stafford and her fiancé in certain recreational events at a 20 work-related retreat, id., Ex. 1, p. 6 ¶ 36 & p. 9 ¶ 53; 21 (viii) unspecified Avenal employees called Stafford “crazy” and questioned her for 22 eating salt, id., Ex. 1, p. 6 ¶ 38; 23 Court’s December 12, 2018 Order on Avenal’s Motion for Summary Judgment, id., Ex. 5; (v) the Superior Court’s 24 December 31, 2018 Judgment, id. ¶ 6, Ex. 6; and (vi) Stafford’s February 8, 2019 Notice of Appeal, id. ¶ 7, Ex. 7. See Doc. No. 29. Plaintiff has not opposed this request. Pursuant to Federal Rule of Evidence 201, Defendants’ 25 Request for Judicial Notice is GRANTED as to the specified records in the State Court Action. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (stating that courts “may take notice of proceedings in other courts, both within 26 and without the federal judicial system, if those proceedings have a direct relation to matters at issue”) (citation and internal quotation marks omitted). Defendants’ Request for Judicial Notice is DENIED as to the complaint in this 27 action, Doc. No. 29 ¶ 4, Ex. 4, because it is unnecessary for the Court to take judicial notice of filings herein. See Willard v. Sebok, 2015 WL 391673, at *2 n. 2 (C.D. Cal. Jan. 28, 2015). 28 1 (ix) Stafford was falsely accused of “smoking pot,” id., Ex. 1, pp. 6-7 ¶ 39; 2 (x) an Avenal executive “accused [Stafford] of being motivated in stealing,” id., Ex. 1, 3 p. 8 ¶ 45; 4 (xi) Stafford was told to “deal with racist statements” and that “there would be serious 5 ramifications” if Stafford reported such statements, id., Ex. 1, p. 11 ¶ 64; and 6 (xii) Avenal terminated Stafford’s employment in retaliation for reporting the race 7 discrimination Stafford experienced while in Avenal’s employ. Id., Ex. 1, p. 15 ¶¶ 8 89-90. 9 Avenal answered the State Court Complaint, denying the allegations, on December 28, 10 2017. Doc. No. 30 ¶ 3. Over the ensuing months, “the parties actively participated in the State 11 Court Action litigation process” – including “propounding and responding to significant written 12 discovery,” “completing 7 days of party depositions,” and extensive motion practice. Id. ¶ 4. 13 Avenal filed a comprehensive motion for summary judgment (addressing all 13 of 14 Stafford’s claims) in the State Court Action on August 24, 2018, Doc. No. 30 ¶ 5, and filed 15 motions to compel deposition testimony a week or so later. See Doc No. 29, Ex. 2 at 1. On 16 October 24, 2018, the state court granted Avenal’s motions to compel. Doc. No. 30 ¶ 6; Doc. No. 17 29, Ex. 2 at 1-2. On October 25, 2018, Stafford filed a motion to disqualify the presiding judge in 18 the State Court Action, asserting that the judge “ha[d] shown clear sympathy” for Avenal and 19 “preferential treatment” to attorneys over pro se litigants, but, for whatever reason, did not 20 immediately effect service of the motion on the judge. Doc. No. 30, ¶ 7 & Ex. A (Declaration). 21 The Superior Court issued a tentative ruling on Avenal’s motion for summary judgment on 22 November 13, 2018 and took the motion under submission on November 14, 2018 following oral 23 argument. Doc. No. 30 ¶ 8. 24 Stafford served her motion to disqualify on the Superior Court judge following oral 25 argument on Avenal’s motion for summary judgment on November 14, 2018, Doc. No. 30 ¶ 8, 26 and filed this action against Avenal – adding Phui as a defendant – in the United States District 27 Court for the Central District of California on November 20, 2018, without immediately serving 28 the complaint (the “Federal Complaint”) on either Avenal or Phui. Doc. No. 30 ¶¶ 9 & 12; see 1 also, Doc. No. 1. 2 The Federal Complaint alleges causes of action against Avenal and Phui for violations of 3 Section 1981 based on the same period of employment and the same series of events at issue in the 4 State Court Complaint. See e.g., Doc. No. 1, p. 4 ¶ 6 (“The most egregious charged statement was 5 a text message to the healthcare team which referenced a team member as a ‘nigga.’”); p. 4 ¶ 9.a. 6 (“[A]round September of 2016, Christina Castaneda, a receptionist at [Avenal], walked up to the 7 Plaintiff, at which time Christina ‘referred to herself as being half white and half black[]’ as a type 8 of humor.”); p. 5 ¶ 9.b. (“The computer maintenance department staff member by the name of 9 Michael told a staff member at the [Avenal] facility that Dr. Stafford would be there for six 10 months at the most.”); p. 5 ¶ 9.c. (“[A] medical assistant at [Avenal], asked [] Dr. Stafford why [] 11 she did not wear a wig, as did an African-American Referral Clerk for [Avenal].”); p. 5 ¶ 9.d. 12 (“The CFO of the facility Hemanta Mungur … accused Dr. Stafford of possibly stealing [a] 13 computer based on her race in about May of 2017.”); p. 5 ¶ 9.e (“In May of 2017 Hemanta 14 Mungur stated that he gets racist statements all the time …[,] implying that the n-word statement 15 should not have been offensive to Dr. Stafford.”); p. 5 ¶ 9.f. (“[A] pen was thrown at Dr. Stafford 16 by a technician at the clinic who was frustrated.”); p. 7 ¶ 9.n. (“After Dr. Stafford reported the N- 17 word to the clinic and other incidents of discrimination, it was an administrative decision to end 18 Dr. Stafford's employment.”); p. 8 ¶ 9.q. (“Christina Castaneda made a statement that mixed race 19 people, Caucasian and African American was disgusting.”); p. 8 ¶ 9.t. (“Dr. Stafford and her 20 fiancé were not included in events on a work related retreat with [Avenal] because of her race.”); 21 and p. 12 ¶ 29 (“[T]he clinic referred to Dr. Stafford as using marijuana because of racial bias.”). 22 Stafford’s motion to disqualify the Superior Court judge was denied on December 3, 2018, 23 on a finding that “[t]here [was] no evidence to support plaintiff’s contentions that [the presiding 24 judge] [wa]s biased or prejudiced towards plaintiff, or that [the presiding judge] [had] sympathies 25 towards defendant, or that [the presiding judge] [had] been abusive or unlawful in her rulings.” 26 Doc. No. 30 ¶ 8; Doc. No. 29, Ex. 3 at 6:1-8. The order added, for good measure, that “[a] judge 27 is not disqualified after rendering a legal or factual ruling or a decision in a case simply because 28 the ruling or decision is unfavorable or disliked by a litigant.” Doc. No. 29, Ex. 3 at 7:4-7. 1 On December 12, 2018, the Superior Court issued an order granting Avenal’s motion for 2 summary judgment in its entirety, see Doc. No. 30 ¶ 10 & Doc. No. 39, Ex. 5, and judgment was 3 entered in Avenal’s favor as to “all of claims or causes of action raised in [Stafford’s] Complaint” 4 the following day. Doc. No. 30 ¶ 11; Doc. No. 29, Ex. 6 at 1. 5 Stafford later served the Federal Complaint on the Defendants, whereupon Defendants 6 challenged venue. Doc. No. 30 ¶ 12. On February 6, 2019, the Federal Action was ordered 7 transferred to the Eastern District of California. Doc. No. 30 ¶ 12. Two days later, on February 8, 8 2019, Stafford filed a Notice of Appeal in the State Court Action. Id. ¶ 13; Doc. No. 29, Ex. 7. 9 Defendants filed the instant motion on March 1, 2019. Doc. No. 27. 10 Defendants’ Motion 11 Defendants contend that the Court should abstain from exercising jurisdiction over this 12 case under the Colorado River doctrine, which allows federal courts to dismiss or stay an action 13 “due to the presence of a concurrent state proceeding for reasons of wise judicial administration,” 14 see Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15 (1983) (quoting 15 Colorado River Water Conservation Dist. V. United States, 424 U.S. 800, 818 (1976)), because 16 this action involves the same “issues,” “injuries” and “legal standards” as the State Court Action. 17 Doc. No. 28 at 6:15-20. Defendants emphasize, in particular, that: (i) the Section 1981 claims in 18 the Federal Action mimic the FEHA claims in the State Court Action, see id. at 7:23-8:3; (ii) this 19 action is based on the same period of employment and series of events as the State Court Action, 20 see id. at 5:7-6:14; (iii) the State Court Action has already progressed past the summary judgment 21 phase, after more than a year of active litigation, see id. at 7:7-22; and (iv) Stafford is pursuing this 22 action due to setbacks in the State Court Action, including setbacks in connection with Avenal’s 23 motion for summary judgment, motion to disqualify and motions to compel. See id. at 8:21-9:4. 24 Plaintiff’s Opposition 25 Stafford argues that staying or dismissing this action under Colorado River would be 26 improper because the FEHA claims in the State Court Action implicate “state rights” and, thus, 27 differ from the Section 1981 claims in this action, which implicate “Federal rights.” Doc. No. 33 28 at 5:4-18. Stafford also contends that rulings in the State Court Action have shown that the state 1 court judge is biased in favor of Avenal and, thus, cannot be trusted to protect Stafford’s rights 2 under federal law. Id. at 3:22-24, 5:18-24. Further, Stafford contends this action does not address 3 the “same issues” as the State Court Action because this action concerns allegations that Avenal 4 discriminated against her on the basis of race – and terminated her for related reasons – and that 5 Phui culpably permitted such wrongful conduct in his role as Avenal’s medical director. Id. 6:3- 6 15.3 7 Legal Standard 8 The Colorado River doctrine deals “with the problem posed by the contemporaneous 9 exercise of concurrent jurisdiction by state and federal courts.” Smith v. Central Ariz. Water 10 Conservation Dist., 418 F.3d 1028, 1032 (9th Cir. 2005) (citing Gilbertson v. Albright, 381 F.3d 11 965, 982 n.17 (9th Cir. 2004) (en banc)). In “exceedingly rare” circumstances, Colorado River 12 recognizes “a narrow exception to the virtually unflagging obligation of the federal courts to 13 exercise the jurisdiction given them.” Smith, 418 F.3d at 1032-33 (quoting Holder v. Holder, 305 14 F.3d 854, 867 (9th Cir. 2002)) (internal quotation marks omitted). If “considerations of wise 15 judicial administration, giving regard to conservation of judicial resources and comprehensive 16 disposition of litigation” show that the federal case should defer to the state case, then the federal 17 court may abstain from exercising jurisdiction over the federal case. R.R. St. & Co. Inc. v. 18 Transp. Ins. Co., 656 F.3d 966, 978 (9th Cir. 2011) (quoting Colorado River, 424 U.S. at 817) 19 (internal quotation marks and brackets omitted). 20 In deciding whether to dismiss or stay a federal case in favor of a state case, courts in the 21 Ninth Circuit examine eight factors: “(1) which court first assumed jurisdiction over any property 22 at stake; (2) the inconvenience of the federal forum; (3) the desire to avoid piecemeal litigation; 23 (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law 24 3 In addition, Stafford objects to Defendants’ motion on the grounds that it was filed without meeting and 25 conferring or a “notification to file a joint report,” and on the grounds that the copy of the motion served on Stafford was captioned with the case number assigned by the Central District (where this action was initially filed), rather than 26 the case number assigned when this matter was later transferred to this forum. Doc. No. 33 at 7:15-26. The first two objections are overruled on the grounds that the Court did not direct the parties to meet and confer or file a joint report 27 in connection with this motion, and there is otherwise no meet and confer requirement or joint report requirement in connection with motions to dismiss or motions to stay. The third objection is overruled on the grounds that Stafford 28 has not shown – or even alleged – prejudice in connection with the erroneous case number, see Doc. No. 33 at 7:23- 1 provides the rule of decision on the merits; (6) whether the state court proceedings can adequately 2 protect the rights of the federal litigants; (7) the desire to avoid forum shopping; and (8) whether 3 the state court proceedings will resolve all issues before the federal court.” R.R. St. & Co. at 978- 4 79 (citing Holder, 305 F.3d at 870). “These factors are to be applied in a pragmatic and flexible 5 way, as part of a balancing process rather than as a ‘mechanical checklist.’” Am. Int’l 6 Underwriters (Philippines), Inc. v. Cont’l Ins. Co., 843 F.2d 1253, 1257 (9th Cir. 1988) (quoting 7 Moses H. Cone Mem’l Hosp., 460 U.S. at 16). “Some factors may not apply in some cases, and 8 ‘[a]ny doubt as to whether a factor exists should be resolved against a stay’ or dismissal.” 9 Montanore Minerals Corp. v. Bakie, 867 F.3d 1160, 1166 (9th Cir. 2017), as amended on denial of 10 reh’g and reh’g en banc (Oct. 18, 2017) (quoting Seneca Ins. Co., Inc. v. Strange Land, Inc., 862 11 F.3d 835, 842 (9th Cir. 2017)). 12 Analysis 13 The Court considers each of the Colorado River factors in turn. 14 I. Assumption of Jurisdiction Over Property 15 The first factor is irrelevant since this action does not involve a specific piece of property. 16 See R.R. Street & Co., 656 F.3d at 979. 17 II. Inconvenience of the Federal Forum 18 The second factor is irrelevant because the federal and state forums are both in Fresno, 19 California. See R.R. Street & Co., 656 F.3d at 979 (finding that the second consideration is 20 irrelevant where “both the federal and state forums are located in [the same city]”). 21 III. Avoidance of Piecemeal Litigation 22 For purposes of the Colorado River analysis, “[p]iecemeal litigation occurs when different 23 tribunals consider the same issue, thereby duplicating efforts and possibly reaching different 24 results.” Seneca Ins. Co., 862 F.3d at 842 (quoting Am. Int’l Underwriters, Inc., 843 F.2d at 1258) 25 (internal quotation marks omitted). Essentially all lawsuits that are prone to a Colorado River 26 analysis, however, will involve piecemeal litigation to some extent. Id. Therefore, for this factor 27 to weigh in favor of abstention, there must be “exceptional circumstances present that demonstrate 28 that piecemeal litigation would be particularly problematic.” Id. at 843 (citing Travelers Indem. 1 Co. v. Madonna, 914 F.2d 1364, 1369 (9th Cir. 1990)). 2 “Exceptional circumstances” exist when there is a “special or important rationale or 3 legislative preference for resolving [all] issues in a single proceeding.” Seneca Ins. Co., 862 F.3d 4 at 843. For example, in Colorado River itself, exceptional circumstances were found to exist 5 because there was a strong federal policy for adjudicating the water rights claims at issue in a state 6 court proceeding. Colorado River, 424 U.S. at 819 (1976); see United States v. Morros, 268 F.3d 7 695, 706–07 (9th Cir. 2001) (“[I]t is evident that the avoidance of piecemeal litigation factor is 8 met, as it was in … Colorado River itself, only when there is evidence of a strong federal policy 9 that all claims should be tried in the state courts.” (citation and internal quotation marks omitted)). 10 Defendants argue that “the threat of piecemeal litigation is certain” here because: (i) 11 Stafford seeks to litigate the same issues in this action and the State Court Action (specifically, the 12 race discrimination, harassment and retaliation that she allegedly suffered as an Avenal employee), 13 Doc. No. 28 at 5:7-12; (ii) “the legal standards to be applied to [Stafford’s Section 1981] claims 14 are virtually identical to the standards that have already been applied to Plaintiff’s FEHA claims 15 by the California Superior Court in the State Court Action,” id. at 6:18-20; and (iii) Stafford has 16 noticed an appeal in the State Court Action, raising the prospect of claim and issue preclusion if 17 the Superior Court’s judgment is affirmed and the prospect of duplicative litigations and trials if 18 the Court of Appeal reverses and remands as to Stafford’s FEHA claims. Id. at 6:26-7:5. 19 Defendants are correct in all three respects, but crucially (for purposes of this factor), they 20 fail to identify a policy, rationale or preference favoring unified state court adjudication of FEHA 21 and Section 1981 claims that triggers the sort of concern about piecemeal litigation at issue in 22 Colorado River and its progeny. Indeed, if anything, the fact that this action involves civil rights 23 claims under a federal statute could be construed to favor the exercise of federal jurisdiction. See 24 Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1979) (stating that “the unflagging obligation of 25 the federal courts to exercise the jurisdiction given to them … is particularly weighty when those 26 seeking a hearing in federal court are asserting … [a] right to relief under 42 U.S.C. § 1983” 27 (citation and internal quotation marks omitted)). 28 This factor, therefore, is neutral and does not weigh in favor of abstention under Colorado 1 River, despite the acute and evident risk of duplicative litigation. 2 IV. The Order in Which the Forums Obtained Jurisdiction 3 The fourth factor in the Colorado River analysis is concerned with preventing waste of 4 judicial resources and undue burden on defendants, see Madonna, 914 F.2d at 1370, and “as with 5 the other Colorado River factors, is to be applied in a pragmatic, flexible manner with a view to 6 the realities of the case at hand.” Moses H. Cone Mem’l Hosp., 460 U.S. at 21. “Thus, priority 7 should not be measured exclusively by which complaint was filed first, but rather in terms of how 8 much progress has been made in the two actions.” Id. In R.R. St. & Co., for example, the Ninth 9 Circuit found this factor to be an “important consideration” weighing in favor of abstention 10 because the state court had made “significant progress” prior to the filing of the federal action – 11 including “conduct[ing] discovery,” “initiat[ing] a phased approach to the litigation” and 12 “issu[ing] an order concerning foundational legal matters” – and was thus “positioned to fully 13 adjudicate” the dispute. R.R. St. & Co., 656 F.3d at 980; see Montanore Minerals Corp., 867 F.3d 14 at 1168 & 1170 (directing district court to stay action under Colorado River where the state court 15 “had made substantial progress, by the time the federal proceeding was filed”). 16 Here, the Federal Action – which has not yet progressed past the pleading stage – was filed 17 less than 30 days before the trial date in the State Court Action, following a year of active 18 litigation (involving written discovery, depositions, mediation, motion practice and such) and after 19 the Superior Court had taken Avenal’s comprehensive motion for summary judgment under 20 submission. Doc. No. 28 at 7:10-22. Since then, moreover, the Superior Court entered summary 21 judgment in favor of Avenal on all of 13 of Stafford’s claims, Doc. No. 29, Exs. 5 & 6, and 22 Stafford has noticed an appeal. Id., Ex. 7. It is hard to imagine a starker contrast in the posture of 23 two active cases or a more obvious risk of wasteful and unnecessarily burdensome litigation. The 24 State Court Action is plainly “running well ahead” of this action in every respect, and this factor 25 therefore weighs heavily in favor of abstention. Cf. Moses H. Cone Mem’l Hosp., 460 U.S. at 22 26 (finding stay was improper under Colorado River where the federal action was “running well 27 ahead of the state court suit”). 28 V. Whether State or Federal Law Provides the Rule of Decision on the Merits 1 The fifth factor in the Colorado River analysis looks at “whether federal law or state law 2 provides the rule of decision on the merits.” R.R. St. & Co., 656 F.3d at 978, 980. “[T]he 3 presence of federal-law issues must always be a major consideration weighing against surrender,” 4 Madonna, 914 F.2d at 1370 (quoting Moses H. Cone Mem’l Hosp., 460 U.S. at 26) (internal 5 quotation marks omitted), but “this factor becomes less significant” where “state and federal 6 courts have concurrent jurisdiction over a claim.” Nakash v. Marciano, 882 F.2d 1411, 1416 (9th 7 Cir. 1989) (citing Moses H. Cone Mem’l Hosp., 460 U.S. at 25). 8 Here, the only claims in the Federal Action (Stafford’s claims for Section 1981 violations) 9 arise under federal law, while the claims in the State Court Action (including Stafford’s FEHA 10 claims) arise under state law. State courts, however, have concurrent jurisdiction over Section 11 1981 claims, DeHorney v. Bank of America Nat’l Trust & Savings Ass’n, 879 F.2d 459, 463 (9th 12 Cir. 1989), and, notwithstanding Stafford’s contention that “[t]his is a federal matter” involving 13 “Federal rights” distinct from the “state rights” at issue in the State Court Action, Doc. No. 33 at 14 5:4-18, Section 1981 claims are analyzed under the same legal framework as FEHA claims. See 15 Lewis v. City of Fresno, 834 F. Supp. 2d 990, 1003 (E.D. Cal. 2011) (“The same summary 16 judgment test applies in both the section 1981 and FEHA contexts.”); see also, Walker v. Brand 17 Energy Servs., LCC, 726 F. Supp. 2d 1091, 1101 (E.D. Cal. 2010) (FEHA claims and Section 18 1981 claims governed by the same legal framework). 19 Thus, this factor weighs somewhat against abstention due to the federal Section 1981 20 claims, but due to the similarity between FEHA claims and Section 1981 claims and the fact the 21 Superior Court has jurisdiction over both, this factor is “not of substantial weight.” See Nakash, 22 882 F.2d at 1416; Riley v. City of Richmond, 2014 WL 5073804, *4 (N.D. Cal. Oct.9, 2014) 23 (finding the source of law factor to be “less significant” in performing a Colorado River analysis 24 because Section 1981 claims and FEHA claims for racial discrimination and harassment are 25 “essentially the same”). 26 VI. Whether the State Court Proceedings Can Adequately Protect the Rights of the 27 Federal Litigants 28 This factor concerns “whether the state court might be unable to enforce federal rights.” 1 Seneca Ins. Co., 862 F.3d at 845. “If the state court cannot adequately protect the rights of the 2 federal litigants, a Colorado River stay is inappropriate.” Montanore Minerals Corp., 867 F.3d at 3 1169 (quoting R.R. St. & Co., 656 F.3d at 981) (internal quotation marks omitted). A state lawsuit 4 cannot adequately protect the rights of a federal litigant if the federal litigant would not be able to 5 raise and enforce his or her claims in the state lawsuit. R.R. St. & Co. Inc., 656 F.3d at 981. For 6 example, a state lawsuit might be inadequate if the state court lacks jurisdiction to hear the federal 7 litigant’s claim. See Holder, 305 F.3d at 869 n.5. This factor is more important when it weighs 8 against abstention, but it can weigh in favor of abstention “[w]hen it is clear that the state court has 9 authority to address the rights and remedies at issue.” Montanore Minerals Corp., 867 F.3d at 10 1169 (quoting R.R. St. & Co., 656 F.3d at 981) (internal quotation marks omitted). 11 As noted previously, state courts have concurrent jurisdiction with federal courts over 12 Section 1981 claims, and Section 1981 claims are analyzed under the same framework as FEHA 13 claims. Moreover, the Section 1981 claims here are based on the same series of events – and 14 contemplate the same harms (race discrimination, harassment and retaliation) – as the FEHA 15 claims that the Superior Court decided on summary judgment. Thus, given the opportunity, there 16 is no reason the Superior Court could not resolve Stafford’s Section 1981 claims “just as 17 effectively” as this Court. See Clark v. Lacy, 376 F.3d 682, 688 (7th Cir. 2004) (finding that the 18 adequacy factor weighed in favor of stay and stating “there is no fear that [plaintiff’s] rights will 19 not be adequately protected in the state proceeding as the same questions of law and fact are 20 presented as in the federal case and the state court can resolve those questions just as effectively”). 21 Further, it is unlikely that proceeding in this forum would somehow afford Stafford an 22 opportunity to litigate her Section 1981 claims that she otherwise would not have. As discussed 23 below in connection with the eighth Colorado River factor, an order from the California Court of 24 Appeal affirming the Superior Court’s judgment in Avenal’s favor on Stafford’s FEHA claims 25 would likely preclude Stafford from prosecuting her Section 1981 claims in this forum under the 26 doctrine of res judicata, and in the event of reversal and remand on Stafford’s FEHA claims, 27 Stafford could move the Superior Court to exercise jurisdiction over her Section 1981 claims 28 1 when litigation resumes in the State Court Action.4 Cf. Silvaco Data Systems, Inc. v. Technology 2 Modeling Associates, Inc., 896 F. Supp. 973, 977 (N.D. Cal. 1995) (staying under Colorado River 3 plaintiff’s Lanham Act false advertising claim, where Lanham Act claim was based on same facts 4 alleged in state complaint in support of state law unfair competition claim and observing that 5 “[plaintiff] can invoke the state court's concurrent jurisdiction over the Lanham Act claims ... if it 6 so wishes”). 7 Since there is no reason to believe the Superior Court cannot protect Stafford’s rights 8 under federal law, this factor somewhat favors abstention. See Montanore Minerals Corp., 867 9 F.3d at 1169; Riley, 2014 WL 5073804, at *3 (finding this factor to weigh in favor of a stay where 10 plaintiff’s federal employment claims paralleled his state court FEHA claims). 11 VII. Avoidance of Forum Shopping 12 The seventh factor in the Colorado River analysis weighs in favor of abstention where the 13 plaintiff engages in forum shopping or seeks to “avoid adverse rulings by the state court.” 14 Nakash, 882 F.2d at 1417 (citations omitted). “When evaluating forum shopping under Colorado 15 River, [courts] consider whether either party improperly sought more favorable rules in its choice 16 of forum or pursued suit in a new forum after facing setbacks in the original proceeding.” Seneca 17 Ins. Co., 862 F.3d at 846 (citations omitted). “To avoid forum shopping, courts may consider ‘the 18 vexatious or reactive nature of either the federal or state litigation.’” R.R. St. & Co. Inc., 656 F.3d 19 at 981 (quoting Moses H. Cone Mem’l Hosp., 460 U.S. at 17 n.20). 20 Here, there are several troubling indications that Stafford “has become dissatisfied with the 21 state court and now seeks a new forum for [her] claims.” Nakash, 882 F.2d at 1417. As noted 22 above, for example, the complaint in this action was filed less than 30 days before the date set for 23 trial in the State Court Action, shortly after rulings adverse to Stafford on Avenal’s motions to 24 compel and almost immediately following the tentative order and oral argument on Avenal’s 25 motion for summary judgment (which the Superior Court ultimately decided entirely in Avenal’s 26 4 Stafford also questions whether the presiding judge in the State Court Action can be trusted to adjudicate her claims 27 fairly. See e.g., Doc. No. 33 at 3:22-23 (suggesting judge’s order in Avenal’s favor on motion for summary judgment was in retaliation for Stafford’s motion to disqualify). Even assuming that such an issue is relevant to this analysis, it 28 has been duly adjudicated by the Superior Court and the judge’s impartiality was emphatically confirmed in the 1 favor). Doc. No. 30 ¶¶ 6-11. Stafford brought a motion to disqualify the Superior Court judge in 2 the month prior to the filing of this action, alleging, inter alia, that the Superior Court judge shows 3 “preferential treatment” to attorneys over pro se litigants and had shown “clear sympathy” for 4 Avenal in the course of the state court proceedings. Id. ¶¶ 8-9, Ex. A (Declaration). Stafford 5 asserts in her opposition to the instant motion that the Superior Court judge may have made an 6 intentionally false statement in ruling against Stafford on a motion to compel and that the 7 summary judgment order in Avenal’s favor may have been in retaliation for Stafford’s motion to 8 disqualify. Doc. No. 33 at 3:15-20 & 3:22-24. And given their pronounced factual and legal 9 similarities, forum shopping appears to be the most plausible explanation for splitting the FEHA 10 claims and the Section 1981 claims at issue here across two fora, as Stafford has done. Cf. Riley, 11 2014 WL 5073804, at *4 (finding that the forum shopping factor weighed in favor of a stay where 12 plaintiff had split related claims across state and federal courts when he could have instead 13 brought them all “in a single forum”). 14 This factor therefore weighs heavily in favor of abstention. 15 VIII. Whether the State Lawsuit Will Resolve All Issues in Federal Lawsuit 16 A court may abstain from exercising jurisdiction under Colorado River “only if it has ‘full 17 confidence’ that the parallel state proceeding will end the litigation.” Intel Corp. v. Advanced 18 Micro Devices, Inc., 12 F.3d 908, 913 (9th Cir. 1993) (quoting Gulfstream Aerospace Corp. v. 19 Mayacamas Corp., 485 U.S. 271, 277 (1988)). “When a district court decides to dismiss or stay 20 under Colorado River, it [] concludes that the parallel state-court litigation will be an adequate 21 vehicle for the complete and prompt resolution of the issues between the parties” and that “the 22 federal court will have nothing further to do in resolving any substantive part of the case, whether 23 it stays or dismisses.” Intel, 12 F.3d at 913 (quoting Moses H. Cone Mem’l Hosp., 460 U.S. at 24 28). “If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant 25 the stay or dismissal at all ….” Id. However, “exact parallelism [between the state and federal 26 lawsuits] ... is not required.” Nakash, 882 F.2d at 1416. “It is enough if the two proceedings are 27 ‘substantially similar,’” and courts “should be particularly reluctant to find that the actions are not 28 parallel when the federal action is but a ‘spin-off’ of more comprehensive state litigation.” Id. at 1 1416-1417 (citing Lumen Const., Inc. v. Brant Const. Co., 780 F.2d 691, 695 (7th Cir. 1985) 2 (stating that in analyzing dismissal or stay under Colorado River, courts “look not for formal 3 symmetry between the two actions, but for a substantial likelihood that the state litigation will 4 dispose of all claims presented in the federal case”) and Calvert Fire Ins. Co. v. American Mut. 5 Reins. Co., 600 F.2d 1228, 1233 (7th Cir.1979)). This factor can only weigh against abstention; it 6 cannot weigh in favor of a stay or dismissal. Seneca Ins. Co., 862 F.3d at 845 (citing Moses H. 7 Cone Mem’l Hosp., 460 U.S. at 25–26 and Colorado River, 424 U.S. at 817). 8 As set forth below, the Section 1981 claims in this action mimic the FHEA claims in the 9 State Court Action both factually and legally and, thus, this factor does not preclude the Court 10 from dismissing or staying Stafford’s claims as to either Avenal or Phui under Colorado River. 11 a. Stafford’s Claims Against Avenal 12 “‘Res judicata’ describes the preclusive effect of a final judgment on the merits.” 13 Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 896 (2002). Under the Full Faith and Credit 14 Act, 28 U.S.C. § 1738, federal courts must “give the same preclusive effect to state court 15 judgments that those judgments would be given in the courts of the State from which the 16 judgments emerged.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 (1982); Trujillo v. 17 Santa Clara Cty., 775 F.2d 1359, 1363 (9th Cir. 1985). “In California, res judicata precludes a 18 plaintiff from litigating a claim if: the claim relates to the same ‘primary right’ as a claim in a prior 19 action, the prior judgment was final and on the merits, and the plaintiff was a party or in privity 20 with a party in the prior action.” Trujillo, 775 F.2d at 1366 (citing Cal. Civ. Proc. Code § 1908 21 and cases). This “primary right” analysis focuses on the “harm suffered, as opposed to the 22 particular theory asserted by the litigant,” and “[e]ven where there are multiple legal theories upon 23 which recovery might be predicated, one injury gives rise to only one claim for relief.” Slater v. 24 Blackwood, 15 Cal.3d 791, 795 (1975) (citations omitted). “Moreover, California, as most states, 25 recognizes that the doctrine of res judicata will bar not only claims actually litigated in a prior 26 proceeding, but also claims that could have been litigated.” Palomar Mobilehome Park Ass’n v. 27 City of San Marcos, 989 F.2d 362, 364 (9th Cir. 1993) (citation omitted). 28 Stafford brought FEHA claims for race discrimination, harassment, retaliation and failure 1 to prevent such conduct against Avenal in the State Court Action. See Doc. No. 29, Ex. 1, ¶¶ 58- 2 67 (race discrimination), 68-77 (harassment), 78-87 (failure to prevent harassment, discrimination 3 or retaliation), 88-94 (retaliation), 145-154 (harassment). Unlike FEHA, Section 1981 does not 4 appear to provide a “failure to prevent” claim, see Owens v. Walgreen Co., 2012 WL 2359996, at 5 *1 n.1 (E.D. Cal. June 20, 2012), but like FEHA, it does provide a claim for race discrimination, 6 as well as claims for harassment and retaliation. See Lockett v. Bayer Healthcare, 2008 WL 7 624847, at *4-*9 (N.D. Cal. Mar. 3, 2008). 8 Stafford has not specifically identified which species of Section 1981 claims she is 9 pursuing against Avenal in this action, but whatever claims she is bringing arise from the same 10 series of events and involve the same elements and legal analysis as the FEHA claims against 11 Avenal in the State Court Action. See Lelaind v. City & Cty. of San Francisco, 576 F. Supp. 2d 12 1079, 1094, 1100-03 (N.D. Cal. 2008) (setting forth elements of claims for discrimination, 13 retaliation, harassment under FEHA and Section 1981); see also, Sims v. City & Cty. of San 14 Francisco, 2015 WL 1351143, at *5 (N.D. Cal. Mar. 25, 2015) (stating that “[t]he analysis of 15 plaintiff’s disparate treatment and retaliation claims under FEHA is the same as the analysis 16 required for evaluation of his § 1981 claims”). Thus, the Section 1981 claims in this action would 17 likely be barred on two separate bases following entry of final judgment in the State Court Action. 18 First, they would be barred because they relate to the same primary rights – including, for 19 example, “the right to be free from employment discrimination based on race” – as Stafford’s 20 FEHA claims. See Trujillo, 775 F.2d at 1366 (“Trujillo’s sections 1981 and 1983 claims both 21 relate to the same ‘primary right’ – the right to be free from employment discrimination based on 22 race or national origin – as his state-adjudicated claim under the FEHA.”). And second, they 23 would be barred because Stafford could have brought them in the State Court Action but, for 24 whatever reason, did not do so. See Dzhanikyan v. Liberty Mut. Ins. Co., 2014 WL 12781773, 25 slip op. at *15 (C.D. Cal. May 9, 2014) (finding that Section 1981 claims were barred in federal 26 court because they “could have been brought in [a] state court action” involving FEHA claims 27 based on the same facts (emphasis original)). 28 Given the foregoing analysis, the Court concludes these proceedings are substantially 1 similar in relevant respects to the State Court Action, see Dzhanikyan, 2014 WL 12781773, at *11 2 (finding that federal action involving Section 1981 claims was “substantially similar” to state court 3 action involving FEHA claims), and that final judgment in the State Court Action will resolve the 4 issues relating to Avenal in this action. See Kremer, 456 U.S. at 466–67, 479–80, 485 (federal 5 discrimination claims precluded by judgment on state anti-discrimination statute). Consequently, 6 the Court is not precluded from abstaining from the exercise of jurisdiction over Stafford’s Section 7 1981 claims against Avenal if abstention is otherwise warranted under Colorado River. See Riley, 8 2014 WL 5073804, at *4 (finding that resolution of FEHA claims in state court action would 9 resolve 1981 claims in federal action by virtue of res judicata and granting a stay under Colorado 10 River). 11 b. Stafford’s Claims Against Phui 12 The fact that Phui is not named as a defendant in the State Court Action does not itself 13 preclude abstention under Colorado River, see Riley, 2014 WL 5073804, at *2, *4 (staying claims 14 against a defendant named solely in the federal action); see also, Lumen Const., Inc., 780 F.2d at 15 695 (finding “the simple expedient of naming additional parties” is not sufficient to avoid 16 application of Colorado River), but a separate analysis is necessary with respect to Phui because, 17 unlike the claims against Avenal in this action, the claims against Phui in this action are not 18 subject to claim preclusion. See Samara v. Matar, 5 Cal. 5th 322, 327 (2018) (claim preclusion 19 applies “between the same parties” to a prior action). 20 In partial contrast to claim preclusion, which bars the relitigation of claims decided in prior 21 actions, the doctrine of collateral estoppel – or “issue preclusion” – “bars the party to a prior action 22 from relitigating any issues finally decided against him or her in the earlier action.” George v. 23 California Unemployment Ins. Appeals Bd., 179 Cal. App. 4th 1475, 1486, (citations omitted). 24 Under collateral estoppel, prior adjudication of a required element of a claim may effectively 25 preclude a claim – even if the entire claim is not barred under claim preclusion – resulting in 26 dismissal. See, e.g., id. at 1486 (“When the issue previously decided is a required element of the 27 FEHA cause of action, the prior adjudication may have a preclusive effect on the claim, even if the 28 entire claim is not barred, resulting in a dismissal of the FEHA action.”); cf. Lumpkin v. Jordan, 1 49 Cal. App. 4th 1223, 1231-32 (1996) (dismissing plaintiff’s FEHA claim for religious 2 discrimination based on federal court’s finding, in deciding plaintiff’s claim under 42 U.S. § 1983, 3 that plaintiff had been “discharged … for legitimate, nondiscriminatory reasons”). 4 As to Phui, the Federal Complaint alleges that: “Khuon [sic] Phui, D.O., and [Avenal] 5 allowed discriminatory acts [to] happen to Dr. Stafford based on her race,” Doc. No. 1, p. 16 ¶ 53; 6 “Khuong Phui, D.O., and [Avenal] violated Dr. Stafford’s civil rights by having her [] undergo 7 separate treatment because of her race,” including “disparaging remarks” and “retaliation,” id., p. 8 16 ¶ 54; “Dr. Stafford[’s] rights were violated by Dr. Phui and [Avenal] when they did not address 9 the continued discrimination at the facility,” id. p. 17 ¶ 56; and “Dr. Phui was the medical director 10 and was negligent in not addressing the n-word in the workplace and then made statements in 11 connection to Dr. Stafford which were not categorically true based on race discrimination.” Id., p. 12 17 ¶ 57. Further, the Federal Complaint alleges that Phui: “defame[d] Dr. Stafford’s level of care 13 by ‘making up stuff’ to discredit her ability in working with patients,” id., p. 7 ¶ 9.l.; “condoned 14 negligent behavior towards Dr. Stafford based on her race,” id., p. 7 ¶ 9.m.; and “assisted in the 15 discrimination based on race when he had a professional duty as a physician not to support the 16 discrimination.” Id. p. 13 ¶ 34. Stafford, therefore, appears to allege that Phui both failed to 17 prevent and directly engaged in race discrimination and related forms of wrongdoing in violation 18 of Section 1981. 19 As noted above, Section 1981 does not appear to provide a claim for failure to prevent 20 discrimination, but even if Section 1981 did provide such a claim, any claims Stafford could bring 21 against Phui under Section 1981 require – as do Stafford’s FEHA claims against Avenal – a 22 predicate showing that Stafford actually encountered race discrimination, harassment or retaliation 23 in the course of her employment with Avenal. See Lelaind, 576 F. Supp. 2d at 1094, 1100-03. 24 Based on essentially the same facts as those alleged here, however, the Superior Court expressly 25 found in granting summary judgment in Avenal’s favor that Stafford “suffered no adverse 26 employment action” to support her FEHA claims. Doc. No. 29, Ex. 5, pp.5-6 (also finding that 27 Stafford failed to make a showing that “actionable discrimination or harassment occurred”). In the 28 event the Superior Court’s judgment is affirmed, therefore, Stafford would be barred by collateral 1 estoppel from relitigating such issues and would be unable to pursue Section 1981 claims against 2 Phui in this forum. See Trujillo, 775 F.2d at 1369 (finding that state appellate court had found, in 3 connection with a FEHA claim, that the reason for plaintiff’s termination was nondiscriminatory 4 and that plaintiff was therefore “collaterally estopped from relitigating th[e] issue” in connection 5 with a federal discrimination claim); cf. Davis v. U.S. Steel Supply, Div. of U.S. Steel Corp., 688 6 F.2d 166, 173 n.9 (3d Cir. 1982) (finding that a Pennsylvania’s court’s finding that defendant “had 7 not been shown to have acted with a racially discriminatory motive [] would constitute collateral 8 estoppel against a similar allegation in a [Section] 1981 action”). 9 The Court, therefore, concludes that the State Court Action will resolve the issues relating 10 to Phui in this action and that abstention as to Stafford’s Section 1981 claims against Phui is not 11 improper if warranted by the other Colorado River factors. See Riley, 2014 WL 5073804, at *2, 12 *4. 13 IX. Balancing of Factors 14 As stated above, the Colorado River factors “are to be applied in a pragmatic and flexible 15 way, as part of a balancing process rather than as a mechanical checklist,” Am. Int’l Underwriters, 16 Inc., 843 F.2d at 1257 (citations and internal quotations omitted), and “any doubt as to whether a 17 factor exists should be resolved against a stay or dismissal.” Montanore Minerals Corp., 867 F.3d 18 at 1166 (citation and internal quotations and brackets omitted). 19 Here, the first and second factors are neutral because this action does not involve property 20 and because the federal and state forums are in the same city. The third factor is also neutral 21 (despite the acute risk of duplicative litigation in this case) because Defendants can point to no 22 policy favoring the unified resolution of civil rights claims in a state court proceeding. The fourth 23 factor weighs heavily in favor of abstention given the extent to which the State Court Action has 24 progressed and the stark difference in the procedural postures of the State Court Action (which is 25 on appeal) and the Federal Action (which is still in the pleading stage). The fifth factor weighs 26 slightly against abstention because Stafford’s Section 1981 claims arise under federal law, but that 27 is mitigated by the factual and legal similarities between the FEHA claims and the Section 1981 28 claims at issue. The sixth factor weighs somewhat in favor of abstention since there is no doubt 1 the Superior Court can adequately protect Stafford’s rights. And the seventh factor weighs 2 heavily in favor of abstention given the striking indicia that Stafford filed this action in response to 3 | setbacks in the State Court Action. 4 In sum, then, three of the first seven factors are neutral; one weighs somewhat in favor of 5 | abstention; two weigh heavily in favor of abstention; and one weighs somewhat against 6 | abstention. Since the balance of these factors favors abstention and the Court concludes, under the 7 |eighth factor, that the State Court Action will dispose of the issues in the Federal Action as to both 8 | Avenal and Phui, Defendants’ motion will be granted. 9 X. Stay or Dismissal 10 The Supreme Court has not answered “whether a dismissal or a stay should ordinarily be 11 |the preferred course of action when a district court finds that Colorado River counsels in favor of 12 | deferring to a parallel state-court suit,” Moses H. Cone Mem’! Hosp., 460 U.S. at 28, but “[w]hen 13 is appropriate for a court to decline to exercise jurisdiction pursuant to the Colorado River 14 | doctrine, [the Ninth Circuit] generally require[s] a stay rather than a dismissal” to “ensure[] that 15 |the federal forum will remain open if for some unexpected reason the state forum.... turn[s] out to 16 inadequate.” Montanore Minerals Corp., 867 F.3d at 1166 (citation and internal quotation 17 |marks omitted). The Court therefore finds that a stay rather than outright dismissal is warranted in 18 instance and stays this matter in its entirety. 19 ORDER 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Defendants’ Motion to Dismiss or, in the Alternative, Stay the Action Under the Colorado 22 River Abstention Doctrine, Doc. No. 27, is GRANTED, and; 23 2. This action is STAYED in its entirety until the State Court Action, including the pending 24 appeal, is finalized. 25 6 IT IS SO ORDERED. Dp 97 Dated: _ August 26, 2019 : : _-SENIOR DISTRICT JUDGE 28

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