cross-complaints and res judicata


From:              Travis

Re:              Cross-Complaints and Res Judicata



CCP §426.30(a) requires that a defendant in a lawsuit allege in a cross-complaint any related cause of action which, at the time of serving his answer to the complaint, he has against the plaintiff.  If defendant does not do that, defendant may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.  Whether the cause of action is “related” depends on if it “arises out of the same transaction or series of transactions or occurrences as the cause of action in the complaint.”  “Transaction” is interpreted broadly and embraces the entire series of acts and mutual conduct of the parties. CCP 426.10(c). 
There are, however, two exceptions to this rule which may be applicable:
First, CCP §426.40(b) states that when the federal or state constitution or statute prohibits the court in which the action is pending and any other court to which the action is transferable from entertaining the cause of action not pleaded, §426.30(a) does not apply, and defendant does not lose his right to plead the cause of action.   This is the case if federal jurisdiction is exclusive, or if the claim is brought in small claim’s court.  If the state court has concurrent jurisdiction with the federal courts to enforce the cause of action, this exception does not apply.  This would seem to apply if the discrimination claim can only be raised in federal court and not state court.
Second, and more on-point, Civil Code §1952.3 states that when landlord brings a UD proceeding and possession of the property is no longer an issue, the case becomes an ordinary civil action in which the defendant may seek affirmative relief and assert all defenses to which he is entitled, but CCP § 426.30(a) does not apply unless, after delivering possession to landlord, tenant “(i) files a cross-complaint or (ii) files an answer or an amended answer in response to an amended complaint.  Cal. Civ Code §1952.3(a)(2).  The annotation to this section states that “this limitation of the compulsory cross-complaint statute will protect [the tenant] against inadvertent loss of a related cause of action.”

Res Judicata

Another issue is whether tenant’s cause of action based on discrimination would be precluded by a judgement in an unlawful detainer action in which tenant could have, but did not, cross-complain the discrimination cause of action.
In res judicata, the cause of action is merged into the judgement, and plaintiff’s only remaining right is to enforce the judgement.  There is nothing left of the original cause of action.  Plaintiff cannot bring a subsequent suit based on the same cause of action (“primary right”).  This occurs when the two actions involve the same injury to plaintiff and the same wrong by the defendant. Eichman v. Fotomat Corp, 147 Cal.App.3d 1170, 1174.  This doctrine does not seem to apply when the claim sought to be asserted in the second action encompasses activities not directly connected with the original action.  Vella v. Hudgins, 20 Cal.3d 251, 256. 
The “primary right” involved in a UD action is the right of possession.  Eichman v. Fotomat Corp, supra, and Zimmerman v. Stotter, 160 Cal.App.3d 1067, 1074.  An affirmative defense to a UD action includes the defense of unlawful discrimination, i.e. under the Unruh Civil Rights Act, which has been held to be barred from additional litigation by res judicata (apparently the discriminatory act alleged was the eviction).  Zimmerman v. Stotter, supra

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