WILSHIRE DIVERSIFIED, INC., et al., Petitioners, v. The SUPERIOR COURT of Santa Clara County, Respondent; HASTINGS SQUARE WEST HOMEOWNERS ASSOCIATION, Real Party in Interest.
Defendants Wilshire Diversified, Inc. and Glenfed Development Corporation (hereafter, collectively, Wilshire) petition for a writ of mandate to compel the trial court to grant their motion for judgment on the pleadings in an action for damages for construction defects in a condominium project. They contend that either the action is barred by res judicata, or that it was filed beyond the period of the 10–year statute of limitations. (Code Civ.Proc., § 337.15.) We conclude that the action is barred by both. Accordingly, a writ of mandate shall issue directing the trial court to grant the motion.
The legal issues are: (1) can successive actions be brought for defective construction of a single housing project when the defects are separable and are discovered at different times; (2) can an amendment adding a different construction defect than originally alleged relate back to the original pleading; and (3) does defendants' failure to seek appellate review of these issues following the overruling of their demurrer preclude their now raising the issue following denial of judgment on the pleadings?
Defendants are the developers and sellers of the real estate project known as the Hastings Square West condominium project (hereafter, Project).1 A notice of completion on that project was recorded on April 29, 1975. Since then, plaintiff Hastings Square West Homeowners Association (hereafter, Association) has filed three complaints: a 1977 complaint, against the project's developers and contractor for construction defects, which was dismissed with prejudice for failure to obey a discovery order; a 1985 complaint, filed on February 19, 1985, but not served for three years, which also alleged construction defects in the Project but described somewhat different defects; and a 1988 amended complaint, which amended the 1985 complaint by adding new theories of recovery. It also described different defects.
The parties agree that the applicable statute of limitations is the 10–year statute for latent defects in real estate construction (Code Civ.Proc., § 337.15), and that the 10–year period expired on April 29, 1985.
SUMMARY OF THE PLEADINGS
The 1977 complaint alleged construction defects in very general terms, describing defective construction “including but not limited to” cracked walls and foundations, faulty grading and drainage, moisture penetration through walls, and severely bubbled tar and gravel roofs which leak. The 1985 complaint alleged negligence and breach of warranty, including numerous water leaks in the roofs and structures of the buildings due to defect in design or manufacture. The 1988 amended complaint alleged negligence, breach of warranty, and strict liability as to two areas of damage: (1) the tar and gravel roofs, alleged to have bubbled, leaked, and deteriorated; and (2) defective lightweight concrete floors which have deteriorated and failed.
Defendants demurred to the 1988 complaint on the grounds of res judicata and statute of limitations. Association conceded the cause of action alleging defective roofs is barred by res judicata. The trial court sustained defendants' demurrer to the allegations of the 1988 complaint pertaining to the roofs, but overruled it as to the concrete floors. Defendants did not seek appellate review.
When Association resisted the demurrer to the 1988 complaint, it argued that, for limitations purposes, that complaint related back to the 1985 complaint because the allegations of defective floors were part of the same general set of facts alleged in the earlier pleading. Association contended that the “general set of facts” referred to in the 1985 complaint consisted of “numerous leaks of water ․ discovered in the roofs and structures of the buildings constructed in Tract 5607.” It went on to say that the 1988 pleading specified two areas of defects which explained the water intrusion: failure of the floors and failure and deterioration of the roofs.
In arguing that the bar of res judicata did not apply, Association contended that the claim regarding the floors was separate from the 1977 complaint because the defective floors were not alleged in the 1977 complaint; but it also argued that the defective floors were embraced in the 1985 pleading (even though not alleged there either) because that pleading made general claims of water leaks, and the leaks partly stemmed from the failure of the floors which had “cracked, fractured and disintegrated permitting water intrusion and resulting damage․” Association conceded, however, that the defective roof claim was barred because it had been specifically pleaded in the dismissed 1977 action.
Wilshire replies that the 1988 complaint must be barred by res judicata, because if it relates back to the general 1985 complaint, which does not mention floors, it also relates back to the similarly general 1977 complaint, which was dismissed with prejudice and which also did not mention floors. Wilshire also contends that Association cannot allege relation back for limitations purposes and then argue to the contrary for res judicata purposes. Wilshire argues that Association has made the claims of relation back in order to gain a favorable ruling on the demurrer, and cannot now deny them in order to gain a favorable ruling on review of the motion to dismiss.
The parties agree that a judgment following a dismissal as a discovery sanction has the same preclusive res judicata effect as a final judgment on the merits. (Bernstein v. Allstate Insurance Co. (1981) 119 Cal.App.3d 449, 451, 173 Cal.Rptr. 841; Kahn v. Kahn (1977) 68 Cal.App.3d 372, 374, 137 Cal.Rptr. 332.) Whatever primary rights Association claimed in the 1977 complaint are barred forever by the judgment dismissing that complaint. The question is whether the 1988 amendment may relate back, so as to avoid limitations, to the 1985 complaint which is general and does not mention flooring defects, but may at the same time allege a separate cause of action from the 1977 complaint—also a general pleading which does not mention floors—so as to avoid the preclusive effect of the dismissal of that pleading.
We are unable to say that a pleading cannot both relate back and not relate back, because a cause of action is not defined in the same way for purposes of the doctrines of res judicata and relation back. A claim is barred by res judicata if it alleges the same primary right and corresponding duty originally litigated to judgment. (E.g. Eichman v. Fotomat Corp. (1983) 147 Cal.App.3d 1170, 1176, 197 Cal.Rptr. 612.) But a claim may relate back to an earlier complaint when both arise out of the same nexus of operative facts and allege the same offending instrumentality and accident. (E.g. Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 151, 216 Cal.Rptr. 405, 702 P.2d 563; Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 936–937, 136 Cal.Rptr. 269, 559 P.2d 624; Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342, 347, 153 Cal.Rptr. 366.) These tests are not necessarily identical, and therefore Wilshire's claim of factual inconsistency if the 1988 complaint relates back to the 1985 pleading, but is entirely separate from the 1977 complaint, does not necessarily resolve the matter.
Association has pleaded separate construction defects in its three pleadings. Although the first pleading is general in that it pleads construction defects “including but not limited to” those listed, it also specifies defective foundations and walls, grading, and roofs. The 1985 pleading mentions water problems specifically attributed to roofs and “structures of buildings.” The 1988 pleading realleges the defectiveroofs first mentioned in 1977 and, for the first time, adds the allegations of defective concrete floors. For purposes of res judicata, we must decide whether the defective construction of floors is the same cause of action—the same invaded primary right and corresponding breach of duty—as was first alleged in 1977.
A cause of action is defined for purposes of res judicata as a claim that either was litigated or could have been litigated in the first action. (See generally, 7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, §§ 188–190, pp. 621–623; 4 Witkin, Cal.Procedure, supra, Pleading, § 23, et seq., pp. 66–92.) Parties are prevented from relitigating that which they could have litigated as well as that which they have submitted to a tribunal because it would lead to undue delay and inefficiency to permit piecemeal litigation of factually or legally related disputes. “If the same primary right is involved in two actions, judgment in the first bars consideration not only of all matters actually raised in the first suit but also all matters which could have been raised [citation].” (Eichman, supra, 147 Cal.App.3d at p. 1175, 197 Cal.Rptr. 612; see also Corral v. State Farm Mutual Auto. Ins. Co. (1979) 92 Cal.App.3d 1004, 1010, 155 Cal.Rptr. 342; Sutphin v. Speik (1940) 15 Cal.2d 195, 202–203, 99 P.2d 652.)
Another general rule in the res judicata cases is that a plaintiff must sue in one action for all the damages flowing from a single injury. For instance, all the damages inflicted in an automobile accident must be sought in one action. (Kidd v. Hillman (1936) 14 Cal.App.2d 507, 510, 58 P.2d 662.) A lawsuit based on injuries to more than one piece of real property constitutes but one cause of action for res judicata purposes. (Beronio v. Southern Pacific R.R. Co. (1890) 86 Cal. 415, 24 P. 1093 [construction of a railroad track which damaged two adjacent lots].)
A decision in which, as here, the plaintiff filed successive lawsuits for gradually manifesting damage, is McCloskey v. Carlton Builders (1985) 165 Cal.App.3d 689, 211 Cal.Rptr. 659. There, homeowners brought two successive lawsuits against the builder and others for fraud in connection with the purchase of their residences. The foundation had been built on expansive soil and had buckled, warped, and cracked. The second lawsuit attempted to recover damages for latent deficiencies in the construction caused by land subsidence subsequent to the first lawsuit. An earlier decision, Bellman v. County of Contra Costa (1960) 54 Cal.2d 363, 5 Cal.Rptr. 692, 353 P.2d 300, permitted successive lawsuits for progressive loss of lateral support of a home. McCloskey distinguished Bellman, saying it did not permit a second suit for the same wrong, and further holding that the first lawsuit for fraudulent concealment of the expansive soil was res judicata as to all harms suffered by plaintiffs on account of that concealment. (McCloskey, supra, 165 Cal.App.3d at p. 691, 211 Cal.Rptr. 659.) The cause of action was not loss of lateral support, as in Bellman, but the single wrong of sale of the home while fraudulently concealing its defective condition. (Id. at pp. 691–692, 211 Cal.Rptr. 659.) Nor was the result changed because plaintiffs might not have been aware of all their damages at the time of the first suit. “ ‘[W]hatever [their] ground of recovery might be for this single wrong [they were] bound to frame [their] complaint in the prior action so as to avail [themselves] of whatever relief the controlling set of facts would warrant․’ ” (Id. at p. 692, 211 Cal.Rptr. 659, quoting Wulfjen v. Dolton (1944) 24 Cal.2d 891, 895, 151 P.2d 846.) “They allege a single transaction—the inducement—giving rise to a single cause of action—fraudulent concealment—in violation of a single primary right—to be free from fraudulent concealment in the purchase of their home.” (Id. 165 Cal.App.3d at p. 692, 211 Cal.Rptr. 659.)
The general rule is that a single tort gives rise to but one cause of action, regardless of the types of injuries caused. (E.g. Slater v. Blackwood (1975) 15 Cal.3d 791, 795, 126 Cal.Rptr. 225, 543 P.2d 593; see also DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1024, fn. 5, 242 Cal.Rptr. 368.) This rule rests on the same considerations as the res judicata analysis; plaintiff must sue in one action for all harms that “could have been litigated.” Again, the emphasis is on requiring an injured party immediately to ascertain the full extent of his injury and to sue for all damages to which he is entitled at once. (McCloskey, supra, 165 Cal.App.3d at p. 692, 211 Cal.Rptr. 659; see Wulfjen, supra, 24 Cal.2d at p. 895, 151 P.2d 846.)
The general rule in appellate decisions involving construction defects refers to a plaintiff's cause of action for property damages in the singular. For example, in a case of latent construction defects which were manifested over a period of time, the court nevertheless speaks of the “plaintiff's cause of action for property damage caused by latent construction defects,” which accrues “ ‘from the point in time when plaintiffs became aware of defendant's negligence as a cause․’ [Citation.]” (Allen v. Sundean (1982) 137 Cal.App.3d 216, 222, 186 Cal.Rptr. 863; see also Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 408, 163 Cal.Rptr. 711.)
In nuisance cases, where a nuisance is permanent and complete, all harms caused constitute one cause of action, and successive suits are not permitted. (Spaulding v. Cameron (1952) 38 Cal.2d 265, 267, 239 P.2d 625; see also Baker v. Burbank–Glendale–Pasadena Airport Authority (1985) 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866.)
Other cases define the term “cause of action” as constituting the invasion of plaintiff's primary right by a series of related or connected acts. (See 4 Witkin, Cal.Procedure, supra, Pleading, § 54, at p. 91; Tooke v. Allen (1948) 85 Cal.App.2d 230, 192 P.2d 804 [series of wrongful specific acts by landlord constituted cause of action for interference with tenant's right of peaceful possession]; Conger v. White (1945) 69 Cal.App.2d 28, 41, 158 P.2d 415 [conspiracy by defendants to defraud plaintiff in three separate purchases of real property, closely related transactions, pursuant to one plan, amounted to one cause of action, for fraud].) These decisions are in harmony with the res judicata cases discussed above; in all cases, related or connected injuries are required to be litigated at once.
Some of the decisions explain that the underlying policy is to compel a plaintiff to thoroughly investigate his case and to allege all his damages in a single proceeding so as to prevent multiple litigation and indefinite exposure to risk. (See, e.g., Eichman, supra, 147 Cal.App.3d at pp. 1175–1176, 197 Cal.Rptr. 612.)
Here, there were a series of lapses in construction of a building. These acts were closely related; they all occurred in the course of construction of a particular real estate project under the supervision of one general contractor and at the behest of one owner-developer. According to the analysis in the “connected act” cases, these multiple construction defects constitute one cause of action. There is a single invasion of primary right—Association's right to have a building constructed with proper workmanship—and a corresponding single breach of Wilshire's duty to do so.
Further, the defects are analogous to the multiple harms caused by a permanent nuisance, since the building, like the nuisance, is now permanent and complete; and on that basis, again, gives rise to but one cause of action for invasion of one primary right. Also, comparing these facts to the Beronio, supra, case, if damage to more than one piece of property gives rise to but one cause of action in Beronio, it follows a fortiori that multiple injuries to the same piece of real property, as here, constitute but one cause of action also. On any of these bases, the multiple construction defects are readily characterized as one cause of action, for defective construction of the project.
Association argues that its 1977 suit cannot be res judicata as to defects it had not then discovered. That argument is incorrect; as stated above, when plaintiff's injuries all result from the same invasion of primary right, the doctrine of res judicata requires plaintiff to sue in one action for all his damages, whether known or whether they could have been known. Indeed, it has been said that “a judgment does not lose its res judicata effect because it was entered while evidence was being suppressed [citations].” (Eichman, supra, 147 Cal.App.3d at p. 1176, 197 Cal.Rptr. 612, emphasis added; Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472–473, 82 Cal.Rptr. 489, 462 P.2d 17.)
Whether an action is res judicata does not turn on the factual extent of the plaintiff's discovery in an earlier action; it turns on the legal question whether both actions seek recovery for invasion of the same primary right and corresponding breach of duty. Here, there was, as stated ante, a single right and a single duty—the right to a building constructed in a workmanlike fashion, and the duty to build it accordingly. All injuries flowing from breach of that duty must be brought in one lawsuit or are forever barred.
Association argues that a different result is compelled by a recent decision which is factually similar to this case because it deals with multiple construction defects. (Winston Square Homeowner's Assn. v. Centex West, Inc. (1989) 213 Cal.App.3d 282, 261 Cal.Rptr. 605.) Winston holds that the trial court, in deciding whether the statute of limitations is tolled because of defendant's repair attempts, may segregate types of construction defect damages and treat them as separate causes of action. Association contends that Winston demonstrates that separable construction defects constitute separate causes of action; hence, the floor defects here, being separable from the defects pleaded in 1977, cannot be barred. We disagree that Winston implies such a result. The Winston decision is not a res judicata case and does not consider whether separate construction defects constitute separate invasions of primary rights and correspondingly separate breaches of duty. The decision is a statute of limitations case, and, as discussed infra, Winston supports our alternative ground of decision that the 10–year statute bars this action.
It follows that the 1977 lawsuit, seeking redress for a variety of construction defects in the project and indeed expressly not limited to the specific defects alleged, has finally adjudicated Association's claim against Wilshire for relief for defective construction, and therefore the subsequent complaints are all barred by res judicata.
Statute of Limitations
Our conclusion that res judicata bars this action is a sufficient ground alone for our decision here in favor of Wilshire. However, we are equally convinced that the action is barred by the 10–year statute of limitations. (Code Civ.Proc., § 337.15.) Since the 1988 pleading was filed beyond the applicable 10–year period, it cannot stand unless it relates back to the timely 1985 pleading.
The relation back cases have typically taken a broad view of the concept of nexus of operative facts and have allowed relation back despite changes in identity of defendant, in remedy, and in theory of recovery. (See generally, 5 Witkin, Cal.Procedure, supra, Pleading, § 1162, et seq., p. 579.) However, the doctrine has limits, as are discussed, for example, in the Coronet case, which holds that a claim of injury by a defective lamp socket and switch does not relate back to a claim of electrocution by a hair dryer manufactured by a different defendant. (Coronet Manufacturing Co. v. Superior Court, supra, 90 Cal.App.3d at p. 347, 153 Cal.Rptr. 366.) In Coronet, relation back was not allowed because the amended complaint was not based on the same operative facts and did not refer to the same offending instrumentality or accident. (See discussion in Barrington, supra, 39 Cal.3d at p. 151, 216 Cal.Rptr. 405, 702 P.2d 563.) The court in Coronet said that there cannot be relation back when different actors and different acts are alleged as the basis of liability. (Coronet, supra, 90 Cal.App.3d at p. 347, 153 Cal.Rptr. 366.)
A recent case following Coronet similarly holds that different accidents cannot relate back even if both result in the same injury. (Espinosa v. Superior Court (1988) 202 Cal.App.3d 409, 414, 248 Cal.Rptr. 375.) In Espinosa, alleged violations of plaintiff's rights by city employees who intimidated witnesses and committed other related acts on May 7 and May 10, could not relate back to alleged police officer action of May 7 of beating and arresting plaintiff and destroying exculpatory evidence. (Id. at p. 415, 248 Cal.Rptr. 375.) The accidents, injuries, and instrumentalities were all different. (Ibid.)
Here, unlike the facts in Coronet and Espinosa, the defendants are the same in both pleadings. But their liability rests on the different acts and different responsibilities of the various subcontractors or other persons responsible for various parts of the building project. We believe that these separate acts of negligent construction do not constitute the same “accident” or “instrumentality” in each pleading so as to permit relation back. Defective floors are not defective roofs nor leaking walls. We believe that the tests of res judicata and relation back produce different results here.
The legal analysis required by res judicata leads to the conclusion that multiple construction defects in the same project constitute but one invasion of primary right. But for purposes of relation back and because of vicarious liability, it is necessary to examine the factual allegations of different, separable acts of negligence perpetrated by different persons at different times. We do not think relation back is properly allowed upon such pleadings.2
We conclude that the relation back doctrine does not permit the 1988 pleading to relate to the 1985 pleading. It follows that the pleading is barred by the 10–year statute of limitations, and the motion for judgment on the pleading should have been granted on that ground.
The decision on which Association relied in rebutting the res judicata argument, Winston Square Homeowner's Assn. v. Centex West, Inc., supra, 213 Cal.App.3d 282, 261 Cal.Rptr. 605, supports the result we reach here. The decision focuses on the ready separability of the defects and therefore implies that separate pleadings alleging different defects of this type cannot relate to one another for purposes of limitations. (See also, for a similar result, Mack v. Hugh W. Comstock Associates (1964) 225 Cal.App.2d 583, 589–590, 37 Cal.Rptr. 466 [defective radiant heaters damaged property; repairs to heaters tolled statute as to defects in heater but not as to damages to the property].)
Our holding here harmonizes with the policy and purpose of the 10–year statute of limitations, which we discussed at length in Sandy v. Superior Court (1988) 201 Cal.App.3d 1277, 1285, 247 Cal.Rptr. 677. As we stated there, the purpose of Code of Civil Procedure section 337.15 “is to protect contractors and other professionals and tradespeople in the construction industry from perpetual exposure to liability for their work. [Citations.] The statute reflects a legislative concern that ‘expanding concepts of liability could imperil the construction industry unless a statute of limitations was enacted.’ [Citation.] Such concerns legitimately include the prohibitive cost of insurance against a perpetual and never ending risk.” (Id. at p. 1285, 247 Cal.Rptr. 677.)
In the instant case, the facts indicate a construction defect—defective floors—not specifically pleaded against defendants until 13 years after the filing of the notice of completion on the project. By Association's own admission in arguing against the application of res judicata, these floor defects are completely separate from the general allegations of defective structures, roof leaks, and water problems alleged earlier. Further, the 1977 pleading was dismissed for dilatory discovery in the lawsuit. Are we to permit resurrection of that lawsuit after expiration of the 10–year statute because there is some factual connection between the present complaint and the unserved 1985 complaint, which said no more about floors than did the 1977 pleading? Such a result not only transgresses the policies of the 10–year statute, but it renders wholly for naught the trial court's original dismissal of the 1977 complaint for what was essentially dilatory prosecution. And it requires the anomalous result that a pleading for defective floors (1) will relate back to a general pleading saying nothing about floors but (2) will be treated entirely separately from an earlier pleading which is also general and says nothing about floors. In short, all the relevant policies compel us to hold that Association cannot have it both ways: either the 1988 complaint states a separate cause of action from anything pleaded before, making it untimely under the 10–year statute of limitations, or alternatively, it is barred by res judicata because it is part and parcel of the 1977 dismissed pleading. We believe that here both these conclusions are correct, and we hold that this action is barred.
Regarding Association's argument that defendants should not be permitted to challenge the 1988 pleading a second time because they lost on the earlier demurrer ruling and did not “take a writ,” we respond that a ruling on a demurrer, unlike a final judgment, is not res judicata as to anything. (See De La Pena v. Wolfe (1986) 177 Cal.App.3d 481, 485, 223 Cal.Rptr. 325; see generally, 7 Witkin, Cal.Procedure, supra, Judgment, §§ 188, 219, pp. 621–622, 655–656.) And we believe it more important to terminate litigation which is brought far beyond the applicable period of limitations, thus avoiding trial on matters which have become stale and difficult to demonstrate, than to punish defendants here for not seeking writ review of a ruling on a demurrer, particularly in light of the discretionary nature of such writ review. (See, e.g., Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379.)
Also, we agree with Wilshire that to permit this lawsuit would allow a patent evasion of the 10–year statute of limitations in many cases. If we were to accept Association's position here, a plaintiff could automatically gain an extension of the statute by simply filing a case with general allegations, allowing it to gather moss, incurring a dismissal for delay; then in the ninth year, filing a second, identical, unserved action, as to which defendant would have no opportunity to demur; and finally beyond limitations, when the plaintiff finally did his investigation and ascertained his damages, pleading those damages in somewhat different terms than initially alleged, and moving to amend on the ground of relation back to allege these newly discovered damages. The result: a lawsuit for damages discovered beyond the 10–year period prescribed by the Legislature, and an impermissible prolongation of the developer's risk of exposure in violation of public policy. (See Sandy v. Superior Court, supra, 201 Cal.App.3d 1277, 247 Cal.Rptr. 677.)
We hold that the 1988 amendment cannot relate back to the 1985 complaint, nor can it be filed anew after expiration of the 10–year limitations period. Accordingly, we conclude that the trial court should have granted the defense motion for judgment on the pleadings.
Real party in interest has been notified that a peremptory writ in the first instance could be issued here, and it has filed opposition. The peremptory writ of mandate will issue in the first instance. (Code Civ.Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–182, 203 Cal.Rptr. 626, 681 P.2d 893.)
Let a peremptory writ of mandate issue as prayed, directing the respondent court to vacate its order denying petitioners' motion for judgment on the pleadings, and instead to make a new order granting that motion. Petitioners shall have costs.
1. Issues arising out of this lawsuit were before this court recently in an original proceeding brought by another party, the general contractor, Wheatley–Jacobsen. We resolved that matter by unpublished opinion upon the ground that he could not be sued as a Doe defendant because his identity was already known at the time of the original complaint. Accordingly, we did not reach the issues of res judicata and limitations which we address here. (Wheatley–Jacobsen, Inc. v. Superior Court (Hastings Square West Homeowners ) (Apr. 4, 1989) H005174 [nonpub. opn.].)
2. It would be more intellectually satisfying if indeed there were but one definition of a cause of action for both res judicata and statute of limitations purposes. The law should be a seamless web, not a patchwork quilt. (See, e.g., Berring, Legal Research and Legal Concepts: Where Form Molds Substance (1987) 75 Cal.L.Rev. 15, 16; People v. Perez (1979) 24 Cal.3d 133, 150, 155 Cal.Rptr. 176, 594 P.2d 1 [dis. opn. of Mosk, J.].) But although that is not the case, at least here we achieve harmonious results by avoiding the absurd conclusion that would follow if we were to decide, as Association would have it, that the third complaint alleging defective floors is not barred by the first action (for res judicata purposes) because the first complaint does not mention flooring defects; but that nevertheless the third complaint's claim of defective floors does relate back to the second complaint, despite the fact that the second pleading does not mention floors either.
PREMO, Acting Presiding Justice.
ELIA and BAMATTRE–MANOUKIAN, JJ., concur.