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Berghoff v. Gavrity7/31/2002
wsuit involves a different primary right than the one involved in Berghoff I and is, therefore, not barred by the doctrine. BAFJ says its right not to be subjected to tortious acts is different from its right to damages arising from a breach of contract. However, the cases BAFJ cites to support this proposition did not involve the situation presented here: a first lawsuit for breach of contract and a tortious bad faith claim, followed by a second lawsuit grounded exclusively in tort. Revere asserts the final judgment in Berghoff I bars this action because this lawsuit involves the same cause of action. Moreover, says Revere, the theories of liability brought in this lawsuit could and should have been brought in Berghoff I. We conclude Revere has the better of the argument.
"A valid final judgment on the merits in favor of a defendant serves as a complete bar to further litigation on the same cause of action. [Citations.] . . . California has consistently applied the `primary rights' theory, under which the invasion of one primary right gives rise to a single cause of action. [Citations.] . . . It is clearly established that `. . . there is but one cause of action for one personal injury [which is incurred] by reason of one wrongful act.' [Citations.]" (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.)
" he `cause of action' is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. [Citation.] Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. `Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.' [Citations.]" (Id. at p. 795.)
"The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other." (Wulfjen v. Dolton (1944) 24 Cal.2d 891, 895-896.)
However, the phrase "cause of action" is often used indiscriminately to mean the specific counts or legal theories presented as bases for relief for an injury rather than the primary right. (Slater v. Blackwood, supra, 15 Cal.3d at p. 796.) The first usage is common in pleading, but is not the term's meaning for res judicata analysis. (Ideal Hardware, Etc. Co. v. Dept. of Emp. (1952) 114 Cal.App.2d 443, 448.) For purposes of res judicata, cause of action "is the right sought to be established, not the remedy or relief, which determines the nature and substance of the cause of action." (R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1194.)
Under the rule against splitting a cause of action, a litigant cannot withhold an issue from the first lawsuit and litigate that issue in a second action when it is within the scope of the cause of action alleged in the first lawsuit. (Kronkright v. Gardner (1973) 31 Cal.App.3d 214, 217.) "If the matter was within the scope of the action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable." (Sutphin v. Speik (1940) 15 Cal.2d 195, 202.) "Whatever grievance a litigant may have at the time he is in
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