The primary rights theory of claim preclusion

Once a cause of action has been adjudicated, it's over and done, and cannot be relitigated. We used to call this the claim preclusion aspect of res judicata. Now we just call it claim preclusion. (Samara v. Matar (2018) 5 Cal.5th 322, 326 & fn. 1.) The principle serves the policy of repose and finality and sounds simple enough, but as is often true in the law, it's not. Let's discuss.

The basic contours of claim preclusion are well defined. "[C]laim preclusion[ ] prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen).) So far, so good. But how do you define "cause of action"?

The Restatement says "the claim [cause of action] extinguished [by a valid and final judgment] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose." (Rest.2d Judgments, § 24; see Gamble v. General Foods Corp. (1991) 229 Cal.App.3d 893, 898, abrogated on another ground by Taylor v. Sturgell (2008) 553 U.S. 880, 891 [128 S.Ct. 2161, 171 L.Ed.2d 155] (Taylor).)

That sounds reasonable. California, however, does not follow this "transactional" approach, preferring instead the "primary right theory" of 19th-century legal scholar John Norton Pomeroy. (Mycogen, supra, 28 Cal.4th at p. 909, fn. 13; Crowley v. Katleman (1994) 8 Cal.4th 666, 681 (Crowley); McKee v. Dodd (1908) 152 Cal. 637, 641; City of Los Angeles v. Superior Court (1978) 85 Cal.App.3d 143, 152 (City of Los Angeles).)

"The primary right theory ... provides that a 'cause of action' is comprised of a 'primary right' of the plaintiff, a corresponding 'primary duty' of the defendant, and a wrongful act by the defendant constituting a breach of that duty." (Crowley, supra, 8 Cal.4th at p. 681.) The primary right is distinguished from the legal theories and remedies that may apply to a claimed invasion of that right. This means that " 'Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief,' " and " 'The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief.' " (Id. at pp. 681-682.) There are many cases explaining this principle. I am including a few here because I find that studying additional examples is a good way to understand the primary rights doctrine. (E.g., Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 860-861; Anderson v. Ford Motor Co. (2022) 74 Cal.App.5th 946, 968-969 (Anderson); Wade v. Ports America Management Corp. (2013) 218 Cal.App.4th 648, 657-658; Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1190-1192; Hindin v Rust (2004) 118 Cal.App.4th 1247, 1257-1259; Balasubramanian v. San Diego Community College Dist. (2000) 80 Cal.App.4th 977, 991-993.)

All right, so, you may ask, when and how does all of this matter? It matters most "when a plaintiff attempts to divide a primary right and enforce it in two suits." (Crowley, supra, 8 Cal.4th at p. 682.) "The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action," and, any attempt to "state[ ] the violation of one primary right in two causes of action contravenes the rule against 'splitting' a cause of action." (Id. at p. 681; accord, Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 576; see Anderson, supra, 74 Cal.App.5th at p. 969 [noting the "narrow application of primary right theory" to determining application of the doctrine of claim preclusion].) This is true even where two lawsuits are based on different facts. (See Franceschi v Franchise Tax Bd. (2016) 1 Cal.App.5th 247, 258 ["under California law, the significant factor guiding the application of the [primary rights] doctrine is whether the 'cause of action' is for invasion of a single primary right; whether the same facts are involved in both suits is not conclusive"].)

Here again, some examples help demonstrate how the primary rights theory operates to bar subsequent actions.

1. Plaintiff was struck by a large piece of meat at a packing plant and sued the packing company for negligently permitting a meat buyer to enter the plant and mishandle the meat, thereby causing plaintiff's injury. (Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 636-637.) Judgment was for the defendant on the merits. (Id. at p. 637.) Plaintiff then filed a new action against the same defendant for the same injuries, alleging this time that the packing company was itself negligent in handling the meat that caused the plaintiff's injury. (Ibid.) Judgment for the defendant again. (Id. at pp. 637, 640.) "The negligence of defendant alleged in the prior action and [the negligence] alleged against it in this action [even though not pled in the prior complaint] represent but different invasions of plaintiff's primary right ... . There was one injury and one cause of action. A single tort can be the foundation for but one claim for damages." (Id. at p. 638; accord, Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1612.)

2. A plaintiff injured in an automobile accident sues the driver and a tire company based on the guest statute which restricted plaintiff's recovery to injuries resulting from intoxication or wilful misconduct. (Slater v. Blackwood (1975) 15 Cal.3d 791, 794.) Judgment for the defendants. (Ibid.) When the guest statute was subsequently held unconstitutional, plaintiff sued the same defendants for the same injuries on a negligence theory that was not available under the guest statute. (Ibid.) No go; judgment for the defendants. (Id. at pp. 794, 798.) " '[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 [l]egal ground for relief' ... [¶] ... [¶] ... [T]hat final judgments, even erroneous ones [citations], are a bar to further proceedings based on the same cause of action is necessary to the well-ordered functioning of the judicial process." (Id. at pp. 795, 797.)

3. In a contract action, plaintiff successfully sued a corporation for declaratory relief and specific performance of a genetic licensing agreement. (Mycogen, supra, 28 Cal.4th at p. 893.) Plaintiff then filed a second independent action for money damages caused by the corporation's breach of the same licensing agreement. (Ibid.) "In both [lawsuits, plaintiff] alleged a breach of the same contract, differing only in the requested remedy... . [¶] ... [¶] ... [T]here was a single breach of contract ... . All remedies requested by virtue of this breach must be requested in a single action or be forfeited." (Id. at pp. 905, 908.)

4. Plaintiff filed an action for loss of her husband's consortium but then dismissed that action with prejudice. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 791-792.) After her husband's death, plaintiff sued for wrongful death. (Id. at p. 792.) Not allowed. (Ibid.) "The primary right [in plaintiff's common law action for loss of consortium] was the right not to be wrongfully deprived of spousal companionship and affection ... . Once plaintiff [dismissed the loss of consortium action with prejudice], the primary right ... had been adjudicated in defendant's favor. Therefore plaintiff could not later allege the same breach of duty in a second lawsuit against defendant based on a new legal theory [of wrongful death]." (Id. at pp. 788, 798, emphasis omitted; see Federal Home Loan Bank of San Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1532-1533 [voluntary dismissal with prejudice of prior lawsuit constitutes retraxit and determination on the merits invoking principles of claim preclusion].)

On the other side of the coin, even where a second action arises from the same transaction at issue in a prior action, and might therefore be barred under the transactional approach of the Restatement, the second action will be allowed in California if it involves a different primary right. A few more examples help to illustrate.

1. "[O]ne's breach of contract by failing to pay a promissory note violates a 'primary right' which is separate from the 'primary right' not to have the note stolen... . [T]heoretically the plaintiffs have been 'harmed' differently by tortious conduct destroying the value of the note, than by the contractual breach of simply failing to pay it." (Sawyer v. First City Financial Corp. (1981) 124 Cal.App.3d 390, 402-403 (Sawyer); see Brenelli Amedeo, S.P.A. v. Bakara Furniture, Inc. (1994) 29 Cal.App.4th 1828, 1837 ["the right to have contractual obligations performed is distinct from the right to be free from tortious behavior [i.e., alleged fraud] preventing collection of a judgment"]; Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 343-344 [right to seek authorization for indemnity under the Corporations Code is not the same cause of action as one for breach of a contract for indemnity].)

2. Plaintiff who settles a class action against her employer for violation of the Labor Code may then file a new action under the Private Attorneys General Act seeking statutory wage and hour penalties based on the same facts alleged in the prior action. "In the First Lawsuit, ... [plaintiff] possessed the 'primary right' ... to be free from Labor Code violations as a former employee ... . [¶] In the Second Lawsuit, ... the plaintiff possessing the primary right is the state." (Howitson v. Evans Hotels, LLC. (2022) 81 Cal.App.5th 475, 488, emphasis omitted; see Agarwal v. Johnson (1979) 25 Cal.3d 932, 954-955 [judgment for defendants in title VII civil rights action was no bar to plaintiff's subsequent action for defamation and intentional infliction of emotional distress], disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 575, fn. 4; Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 728-729 [contract and Truth in Lending Act claims, though "largely based on the same set of underlying facts, ... do not involve the same primary rights"]; Henderson v. Newport-Mesa Unified School Dist. (2013) 214 Cal.App.4th 478, 500-502 [public teacher's right to be properly classified is a primary right distinct from the right to priority in rehiring and the right to be free from discrimination]; George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1483 [civil service proceeding and Fair Employment and Housing Act actions involve "two distinct rights or interests"].)

3. Plaintiff who obtained a writ compelling his employer to reinstate him could then file an action for damages arising from denial of his right to be employed. (Craig v. County of Los Angeles (1990) 221 Cal.App.3d 1294, 1298, 1301-1303.) "In the mandate actions, the harm suffered was the denial of [employment] despite the ... order that [plaintiff] be hired. In this action, the harm suffered included the emotional distress which resulted from [the employer's] wrongful conduct." (Id. at pp. 1302-1303.)

4. A plaintiff may sue separately for medical malpractice and battery arising from the same transaction because "[t]he harm from the medical malpractice ... stemmed from the violation of the right to be free of negligence ... . By contrast, the harm from the battery ... was a harm to [plaintiff's] dignitary and privacy interests." (Friedman Prof. Management Co., Inc. v. Norcal Mutual Ins. Co. (2004) 120 Cal.App.4th 17, 29, emphasis omitted.)

As clear as these examples may appear to be, the concept of a "primary right" remains elusive and sometimes even takes on the characteristics of the rejected transactional approach. (See, e.g., Baral v. Schnitt (2016) 1 Cal.5th 376, 395 ["the primary right theory is notoriously uncertain in application. 'Despite the flat acceptance of the ... theory ... the meaning of "cause of action" remains elusive and subject to frequent dispute and misconception' "]; Mycogen, supra, 28 Cal.4th at p. 909, fn. 13 [declining to abandon primary rights theory and adopt the Restatement transactional approach because "the result in this case would be the same under either theory"]; Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1203 ["in defining the injury suffered, primary rights theory incorporates to some degree a transactional standard"]; Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 68 ["What constitutes the 'same controversy' is a complex conceptual and practical problem"]; Sawyer, supra, 124 Cal.App.3d at p. 399 ["what constitutes a 'primary right' is complicated by historical precedent"]; City of Los Angeles, supra, 85 Cal.App.3d at p. 153 [" '[t]he concept of "cause of action" may ... be enlarged or narrowed in proportion to the breadth of the particular court's concept of 'primary right' "].) This elastic quality of the primary rights theory suggests that, when seeking a remedy for a wrong, the prudent pleader will initiate litigation by first identifying the harm (primary right) for which recovery is sought, and then asserting all possible legal theories, naming all possible responsible parties, and seeking all possible remedies.