NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

O'ROURKE, Acting P. J.

Plaintiff Virginia De Los Santos (De Los Santos) appeals a judgment in favor of defendants San Diego Metropolitan Transit System and San Diego Transit Corporation (collectively, MTS) following the trial court's grant of MTS's summary judgment motion. The trial court granted summary judgment for MTS on the ground that De Los Santos's complaint for dangerous condition of public property (Gov. Code, § 830 et seq.) was barred by the two-year limitations period for an action for personal injury (Code Civ. Proc., § 335.1) and by De Los Santos's failure to timely file a government claim form (Gov. Code, § 911.2). We sought supplemental briefing from the parties regarding claim preclusion in light of the judgment in favor of MTS in De Los Santos's prior action against it arising out of the same injury. We conclude, based on the undisputed material facts, that De Los Santos's complaint was barred by res judicata and we affirm the judgment on that ground. Accordingly, we do not address the statute of limitations or the timeliness of De Los Santos's government claim.

FACTUAL AND PROCEDURAL BACKGROUND

De Los Santos's First Action

On April 14, 2012, at approximately 8:48 p.m., "during the hours of darkness," De Los Santos fell under the rear tires of a MTS bus, sustaining permanent injuries to her left arm and hand after she sought to attract the bus driver's attention by banging on the side window of the bus as it was pulling away from the bus stop. She filed a government claim with MTS in August 2012, based on the bus driver's alleged negligent operation of the bus and MTS's alleged negligence in allowing the bus to operate with defects in its on-board video system. De Los Santos included copies of the bus video recording and the California Highway Patrol's traffic collision report along with her claim. The traffic collision report characterized the lighting of the accident scene as "Dark—Street Lights" and included diagrams depicting De Los Santos's placement relative to the bus stop, bus, and street lights at the time of the accident. The report did not note any visual obscurement. The report referenced a police officer's interview with the bus driver in which the driver stated he had "checked his mirrors and pulled away from the curb" and "did not hear or see anyone tapping on his passenger side window as he drove away."

De Los Santos filed a lawsuit against MTS and the bus driver in January 2013. (De Los Santos v. San Diego Metropolitan Transit System, et al. (Super. Ct. San Diego County, 2015, No. 37-2013-00032020-CU-PA-CTL) (DLS I).) The operative complaint in DLS I asserted seven causes of action based on: (1) violations of the Common Carrier statutes (Civil Code section 2100 et seq.); (2) violation of Public Utilities Code section 120105; and (3) negligence based on various violations of the Vehicle Code. The complaint alleged, among other things, that the bus driver's conduct in failing to wait for De Los Santos and keep a proper lookout for prospective passengers was a substantial cause of her injuries, MTS's failure to adequately maintain all of the bus video cameras was a substantial factor in causing the bus driver not to be able to see De Los Santos, and MTS was liable for the bus driver's negligence because it owned the bus.

Discovery proceeded, including the deposition of MTS's human factor's expert, Jason Droll, Ph.D., on August 8, 2014, who opined that no bus driver would have been able to see De Los Santos on the sidewalk alongside the bus because of the "valley of darkness" in that area. Shortly thereafter, De Los Santos submitted a second government claim to MTS, alleging the location of the bus stop where De Los Santos's 2012 accident occurred was a dangerous condition of public property. MTS deemed the claim "untimely." Later that same month, De Los Santos moved the court for leave to file an amended complaint to add dangerous condition allegations, but the court denied her motion.1

The case went to trial, the jury returned a verdict in favor of MTS and final judgment was entered.

De Los Santos's Second Action

In September 2014, De Los Santos filed the instant action (DLS II), seeking relief from her injuries arising out of the April 2012 bus accident. The operative complaint asserts a single cause of action for dangerous condition of public property (Gov. Code, § 830 et seq.). The complaint alleges that the location of the bus stop constitutes a dangerous condition of public property "because it was chosen, selected and/or maintained by MTS in a location where MTS bus drivers such as Klein were unable to see, observe, and/or detect passengers and/or prospective passengers . . . including during nighttime and/or after-dark hours as scheduled by Defendants."

MTS filed a motion for summary judgment in March 2016. The motion asserted, among other grounds, that De Los Santos's dangerous condition cause of action was time-barred by the six-month Government Claim filing requirement (Gov. Code, § 911.2) and the two-year statute of limitations for personal injury (Code Civ. Proc., § 335.1). MTS argued that the delayed discovery rule did not apply, because once a plaintiff has reasonable suspicion that a wrong has been committed, he or she has a duty to investigate, and failure to perform a diligent investigation does not delay accrual of a cause of action. MTS contended that a reasonable investigation into the bus driver's negligence, as alleged in DLS I, should have included investigation into potential factors which may have prevented him from seeing De Los Santos, such as her placement respective to the bus or any conditions in the area that would have impacted his view. It was undisputed that De Los Santos did not conduct a nighttime inspection of the accident scene.

De Los Santos opposed the motion, arguing that a triable issue of material fact existed as to whether she was delayed in discovering the lighting issue at the bus stop "due to no fault of her own." De Los Santos emphasized her efforts in propounding discovery upon MTS, her multiple attempts to obtain an earlier deposition of Dr. Droll, and MTS's and the bus driver's failure to identify any issue relating to lighting in response to her earlier discovery. She contended that because she engaged in diligent discovery efforts and was delayed by MTS's actions, deposition testimony, and discovery responses, the limitations period for the cause of action for dangerous condition of public property did not accrue until the date of Dr. Droll's deposition, and thus her complaint in DLS II and second government claim were both timely filed.

The trial court entered summary judgment in favor of MTS based on the time-bar and declined to rule on its remaining defenses.

The Appeal

De Los Santos timely appealed. While the appeal was pending, this court requested that the parties provide supplemental briefing on whether the doctrine of res judicata (claim preclusion) bars De Los Santos from litigating DSL II as a result of the judgment entered in DSL I.

In her supplemental brief, De Los Santos contends she is not barred from litigating DLS II because: (1) her claim of dangerous condition based on inadequate lighting raises a separate cause of action; (2) the issue was never litigated in DLS I because the trial court denied her motion to amend the first action to add dangerous condition allegations and her motion to consolidate the two actions; and (3) she first learned of the inadequate lighting condition at Dr. Droll's deposition in 2014; thus there is a factual issue as to whether she "knew or should have known of the claim when the first action was filed." (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 156 (Allied).) De Los Santos relies on the exception articulated Allied that res judicata does not apply when the second action is based on newly discovered facts. (Ibid.) MTS asserts, in its supplemental brief, that both cases involve the same primary right, appellant waived her right to challenge the trial court's denial of her motions to amend and/or consolidate by failing to appeal in DLS I, and Allied is distinguishable because it involved fraud by the defendant prior to the plaintiff's filing of the initial action, which prevented it from discovering the facts forming the basis of its second action.

DISCUSSION

I. Summary Judgment Principles and Standards of Review

Summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant seeking summary judgment bears the initial burden of showing that plaintiff cannot establish one or more elements of the cause of action, or that there is a complete defense to the claim. (Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, 1087.) However, once a "defendant meets this burden, the burden shifts to the plaintiff to show the existence of a triable issue." (Ibid.) We conduct an independent review of the record before the trial court when it ruled on the defendant's motion to determine whether triable issues of fact exist, viewing the evidence in the light most favorable to the losing party and resolving evidentiary doubts and ambiguities in his or her favor. (Elk Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 606.)

We review an order granting a motion for summary judgment de novo. (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1107.) "`We will affirm a summary judgment if it is correct on any ground, as we review the judgment, not its rationale.'" (Ibid.) In conducting our independent review, we may consider an issue for the first time on appeal if it "involves purely a legal question which rests on an uncontroverted record which could not have been altered by the presentation of additional evidence" and the opposing party has been provided with notice and allowed to respond to the issue. (Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335-36 (Noe); see also Code Civ. Proc., § 437c, subd. (m)(2).) We also review de novo the question of whether the doctrine of res judicata applies in a particular case. (City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 228.)

II. Principles of Res Judicata (Claim Preclusion)

"Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen).) "Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit." (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings).) Claim preclusion is distinct from issue preclusion, historically called collateral estoppel, which "describes the bar on relitigating issues that were argued and decided in the first suit." (Ibid.)

California applies the "primary rights" theory in determining "whether two proceedings involve identical causes of action for purposes of claim preclusion." (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797; see Mycogen, supra, 28 Cal.4th at p. 904.) The term "cause of action" as used in the context of primary rights does not refer to different counts which state the same cause of action under different legal theories. (Boeken, supra, at 48 Cal.4th at p. 798.) Rather, in defining whether there is a single cause of action or "primary right," the significant factor is the nature of the harm suffered—the primary right is therefore distinguishable both from the legal theory asserted and the nature of the remedy sought. (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1327 (Alpha); see also DKN Holdings, supra, 61 Cal.4th at p. 818, fn. 1; Mycogen, supra, 28 Cal.4th at p. 904.)

The primary right in a tort action for personal injury is the plaintiff's "right to freedom from bodily harm caused by negligence." (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384; see also Flynn v. Gorton (1989) 207 Cal.App.3d 1550, 1555 ["negligence claim involved [plaintiff's] primary right to be free of personal injury"].) For example, in Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 638 (Panos), a plaintiff who was injured at the defendant's packing plant brought an action alleging negligent supervision of a third party and judgment was entered in the defendant's favor. The plaintiff subsequently uncovered facts revealing that the defendant's own employee had operated the injury-causing equipment and sought to bring a second action against the defendant. The California Supreme Court concluded the second action was barred because the two actions both involved the same primary right. (Ibid.) Similarly, a passenger who was injured in an automobile accident was barred from bringing a suit for general negligence against the driver and automobile owner when her prior lawsuit, based on a former guest statute barring intoxication or willful misconduct (subsequently held unconstitutional), had resulted in a verdict for the same defendants. (Slater v. Blackwood (1975) 15 Cal.3d 791, 795 (Slater).)

When two actions involve the same primary right, res judicata bars litigation "not only of issues that were actually litigated in the prior proceeding, but also issues that could have been litigated in that proceeding." ( Franceschi v. Franchise Tax Board (2016) 1 Cal.App.5th 247, 257 (Franceschi).) "`A party cannot by negligence or design withhold issues and litigate them in consecutive actions.'" (Id. at p. 259.) A party must diligently investigate its claims in the initial action because the final judgment is conclusive, unless undiscovered fraud by one party "deprived the opposing party of the opportunity to appear and present his case." (Eichman v. Fotomat Corp. (1983) 147 Cal.App.3d 1170, 1175-1176 ["ignorance of evidence which should have been discovered does not negate the application of res judicata"].)

III. Claim Preclusion Bars DLS II

A. Same Cause of Action Requirement

In her supplemental briefing, De Los Santos asserts that the dangerous condition claim "is a separate and distinct cause of action." However, as discussed above, under the primary rights theory a "cause of action" does not correspond to the legal theory a plaintiff uses to seek relief, or even the specific relief sought, but is based on the nature of the harm suffered. (Alpha, supra, 133 Cal.App.4th at p. 1327.) De Los Santos's respective complaints in DLH I and DLH II establish that both actions arise out of the personal injuries De Los Santos experienced on April 14, 2012, while she was attempting to catch an MTS bus.2 Thus DLS I and DLS II are based on the same primary right, De Los Santos's right to be free from personal injury associated with MTS's bus transit system. (See Panos, 21 Cal.2d at pp. 638-639; Slater, supra, 15 Cal.3d at p. 795.) Accordingly, the requirement that the two actions involve the same cause of action is met.

B. Same Parties Requirement

Regarding the same parties' requirement, the record shows, and the parties do not dispute, both DLH I and DLH II were filed by De Los Santos and against MTS.3 Therefore, the same parties requirement is met.

C. Requirement for Final Judgment on the Merits

De Los Santos does not dispute that a final judgment on the merits was entered in DLS I in favor of MTS. Rather, she argues in her supplemental brief that the issue of the dangerous condition of public property was never "actually litigated nor adjudicated in DLS I." Although actual resolution of a specific issue is a critical requirement for application of collateral estoppel (issue preclusion) (DKN Holdings, supra, 61 Cal.4th at p. 824), it is not a requirement for res judicata, which applies to both issues "actually litigated" and those "that could have been litigated" in the prior proceeding (Franceschi, supra, 1 Cal.App.5th at p. 257). De Los Santos admits that her dangerous condition claim "could have been litigated in DLS I," but blames the court for not allowing her to assert it therein, either through amendment or consolidation. However, if De Los Santos believed the trial court erred in refusing to allow her amendment, she could have challenged the decision through appeal of the DLS I judgment. (See Jennings v. Marralle (1994) 8 Cal.4th 121, 129 [challenge to order denying leave to amend may be raised on appeal from the judgment].) Since the judgment in DLS I was entered following a jury trial and has since become final, it constitutes a final judgment on the merits.

D. The Allied Test for Newly Discovered Facts

In her supplemental brief, De Los Santos contends that res judicata should not bar DLS II because she did not discover the facts underlying her dangerous condition claim until Dr. Droll testified in 2014. She relies on Allied to support a newly discovered fact exception to res judicata. (Allied, supra, 127 Cal.App.4th at p. 156.) In Allied, the appellate court considered whether a plaintiff's fraud claim, revealed during discovery in its original breach of contract action, was barred by res judicata. The court began with the well-known rule that res judicata does not bar claims that arise after the initial complaint is filed. (Id. at p. 155.) The court then established a test to apply for res judicata "where the plaintiff contends [a newly discovered fact] was unknown due to defendant's fraud," and determined the first action should serve as a bar "only where with diligence [the second claim] could be discovered prior to filing the initial suit." (Id. at p. 157.) The court concluded that because there was no evidence that the plaintiff should have known of the fraud earlier, res judicata did not bar its second suit. (Id. at p. 157.)

This case is distinguishable from Allied, supra, 127 Cal.App.4th 150. De Los Santos does not contend that before she filed DLS I, MTS fraudulently withheld information from her that prevented her from discovering the alleged dangerous condition at the accident scene. The undisputed facts show that: (1) at the time she filed her original complaint De Los Santos knew the exact date and time of her accident, that it was dark when the accident occurred, and the location where it occurred; (2) the bus stop is on a public street and she could have inspected it at any time of the day or night; (3) there were "no substantive modifications, additions and/or changes to the [bus stop], including lighting/illumination" since the accident; and (4) De Los Santos did not conduct a nighttime inspection of the accident scene. Although De Los Santos argues MTS should have revealed Dr. Droll's conclusions sooner in response to her diligent discovery efforts, she has not identified any facts from which we can infer that his opinion regarding the lighting conditions at the site was based on, or prompted by, any information not equally accessible to her at the onset of her original suit. De Los Santos does not dispute that she had access to the accident site, the bus video recording, and the San Diego Highway Patrol traffic collision report prior to filing her complaint in DLS I. Thus, unlike the circumstance in Allied, where the defendants had control of the relevant information underlying the plaintiff's claim, here there was nothing to prevent De Los Santos from discovering the lighting conditions near the bus stop through a nighttime inspection of the scene before she initiated her original action. Because De Los Santos has failed to identify material facts establishing her inability to have made an earlier discovery of the basis for her dangerous condition claim through exercise of due diligence, Allied does not preclude application of res judicata to DLS II.

E. Conclusion

We conclude that the parties' separate statements of material facts and the evidence offered in support of these statements demonstrate the absence of a triable issue of material fact with respect to claim preclusion by DLS I. We note the issues raised on summary judgment required De Los Santos to address her investigation into the cause of her accident and her access to relevant facts. De Los Santos was also given the opportunity to provide supplemental briefing and she did not contend there were any additional facts she could present that would impact the res judicata analysis. Under these circumstances, we may affirm the trial court's granting of summary judgment on a ground not raised by MTS's summary judgment motion. (Noe, supra, 237 Cal.App.4th 316, 335-36.) Given our conclusion, we need not address whether De Los Santos's action may also be barred by the statute of limitations or Government Code filing requirements.

DISPOSITION

The judgment is affirmed. MTS is entitled to its costs on appeal.

AARON, J. and DATO, J., concurs.