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Court of Appeal, Fourth District, Division 1, California.

Raymonde Aleta SLATER, etc., Plaintiff and Appellant, v. John Robert BLACKWOOD et al., Defendants and Respondents.

Civ. 12986.

Decided: April 23, 1975

Walter P. Christensen, San Diego, for plaintiff and appellant. Luce, Forward, Hamilton & Scripps by Robert G. Steiner, San Diego, for defendants and respondents.


Plaintiff Raymonde Aleta Slater, a minor suing by her guardian ad litem, appeals from the judgment of dismissal entered in her second action to recover damages for personal injuries sustained in 1969 while she was riding as a guest in an automobile driven by defendant John Blackwood and owned by defendant Escondido Tire Supply Co., Inc. Also named as defendants were the driver's parents, Vivian E. Blackwood and Robert L. Blackwood. The dismissal was entered after the court sustained without leave to amend defendants' general demurrer on the ground the second action was barred by the doctrine of res judicata and the rule against splitting the cause of action. Defendants had also contended the recent case holding the guest statute (Veh.Code § 17158) unconstitutional (Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212) should not be applied retroactively to revive a cause of action already barred by res judicata. Defendants make the same contentions now in defending plaintiff's appeal from the judgment.

Plaintiff had filed her first action (Sup. Ct. No. 1103N) in March 1970, framing her complaint within the limitations of Vehicle Code section 17158.1

In Count I plaintiff alleged: on July 11, 1969 while plaintiff was riding in a pickup truck driven by defendant John Blackwood on a public highway in San Diego County, the driver was guilty of willful misconduct in that while traveling at a high, unlawful and unsafe speed, he willfully and intentionally made a left turn directly in front of an oncoming station wagon, proximately causing plaintiff to sustain multiple, severe, permanent injuries. The factual allegations of the complaint were sufficient to permit proof and support findings of negligence. In other counts of the complaint plaintiff alleged intoxication, derivative parental liability under the Vehicle Code, vehicle ownership liability, and parental liability under Civil Code section 1714.1.

The trial court granted defendants' motion for nonsuit after plaintiff's opening statement and various stipulations indicated the evidence would show that plaintiff was a guest and that the driver was neither intoxicated nor guilty of willful misconduct. During argument on the motion defense counsel made these statements:

‘[I]t appears categorically clear that Mr. Blackwood was negligent. . . . But as far as Aleta Slater is concerned, the test of the law is one of willful misconduct, and not negligence . . .. [A]ny reference to negligence is really immaterial. . . . So we really boil down to one and only one issue: Wilful misconduct.’

Persuaded by this argument, the trial court granted the motion for nonsuit and entered judgment for defendants expressly on the merits pursuant to Code of Civil Procedure section 581c.

On appeal from the first judgment plaintiff contended the guest statute was unconstitutional under the equal protection clause, and that proof of simple negligence should be sufficient to warrant recovery. The same contention having been rejected in Ferreira v. Barham, 230 Cal.App.2d 128, 40 Cal.Rptr. 739 (hearing denied), this court affirmed the first judgment and, in June 1972, the Supreme Court denied a hearing.

Eight months later, in February 1973, the Supreme Court held the guest statute unconstitutional as applied to a negligently injured guest. (Brown v. Merlo, supra, 8 Cal.3d 855, 882, 106 Cal.Rptr. 388, 506 P.2d 212.) In a footnote (fn. 4, pp. 863–864, 106 Cal.Rptr. 388, 506 P.2d 212) the court declared it had never directly passed on the equal protection argument made in that case. In the same footnote the court made an oblique reference to the Ferreira case but did not expressly overrule it.

In May 1973 plaintiff, still a minor, filed her complaint in the instant action, this time characterizing as negligent driver Blackwood's conduct in making a left turn directly in the path of an oncoming car on June 11, 1969. This time defendants filed general demurrers on the ground the second action was barred by res judicata, asking the court to take judicial notice of the final judgment entered in action No. 1103N. Defendants contended the two cases stated the same cause of action although based on different theories of liability, that the first case failed because there was no evidence of legal liability, and that the final judgment in the first case is a bar to a later action despite the later change in law wrought by Brown v. Merlo, supra, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212. Once again the trial court was persuaded by defendants' logic. After explaining its reasoning in a memorandum decision, the court sustained the demurrers without leave to amend and entered a judgment of dismissal.

On appeal plaintiff contends she had two causes of action, one for willful misconduct and the other for negligence, citing language from Brown v. Merlo, supra, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, as authority. She further contends the holding of Brown v. Merlo, supra, can be applied retroactively to her negligence cause of action, the statute of limitations not yet having run due to her minority.


We reject plaintiff's contention the 1969 collision gave her two separate causes of action to recover damages for her injuries. It is true the court in Brown v. Merlo, supra, 8 Cal.3d 855, 106 Cal.Rptr. 388, 560 P.2d 212, spoke of the plaintiff's ‘cause of action for willful misconduct’ and his ‘cause of action in negligence’ (see pp. 860, 883, 106 Cal.Rptr. 388, 506 P.2d 212). However, sometimes courts use the phrase ‘causes of action’ to mean counts which state differently the same cause of action. (Kaufman & Broad Bldg. Co. v. City & Suburban Mortg. Co., 10 Cal.App.3d 206, 215, 88 Cal.Rptr. 858.) In Brown v. Merlo, supra, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, we believe the court was referring to counts rather than true causes of action. Otherwise it would have been abandoning the long accepted ‘primary right theory.’ In California a cause of action is comprised of the plaintiff's primary right and defendant's corresponding duty, combined with the defendant's breach of such right and duty. Thus the cause of action is based upon the acts giving rise to the plaintiff's injury, not upon the particular legal theory of the defendant's wrongful act. In Panos v. Great Western Packing Co., 21 Cal.2d 636, 638, 134 P.2d 242, where plaintiff brought successive negligence actions to recover for a single injury, alleging different negligent acts each time, the court said:

‘The cause of action is simply the obligation sought to be enforced. (Citations.) The negligence of defendant alleged in the prior action and that alleged against it in this action represent but different invasions of plaintiff's primary right and different breaches of the same duty that it owed to him. There was one injury and one cause of action. A single tort can be the foundation for but one claim for damages.’ (Panos v. Great Western Packing Co., 21 Cal.2d 636, 638, 134 P.2d 242, 244.)

(See gen., 3 Witkin, Cal.Proc.2d, Pleading, §§ 22–25, 34, pp. 1707–1711, 1717–1718.) Thus it appears clear that plaintiff's two lawsuits were based on a singe cause of action and that ordinarily the adverse judgment in the first action would act as a bar to the second.

Plaintiff urges the court to apply the rule of Brown v. Merlo, supra, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, retroactively to enable her to recover for her injuries. A decision of a court of supreme jurisdiction overruling former decisions is given retrospective effect as if the former decision never was the law (County of Los Angeles v. Faus, 48 Cal.2d 672, 680, 312 P.2d 680), but this retroactivity does not supersede the operation of the statute of limitations. (Monroe v. Trustees of California State Colleges, 6 Cal.3d 399, 406, 99 Cal.Rptr. 129, 491 P.2d 1105.) Defendants would add: ‘nor does this retroactivity supersede the effect of the doctrine of res judicata.’

The doctrine of res judicata is based upon the sound public policy of limiting litigation in order to protect defendants from vexatious litigation and to conserve the time of the courts. The rule against splitting the cause of action is part of the doctrine. Res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction (Bernhard v. Bank of America, 19 Cal.2d 807, 810–811, 122 P.2d 892; Wulfjen v. Dolton, 24 Cal.2d 891, 894, 151 P.2d 896). The doctrine extends the bar against subsequent litigation not only to issues raised in the previous litigation but also to those which might have been raised. (Lunsford v. Kosanke, 140 Cal.App.2d 623, 627, 295 P.2d 432; Steiner v. Thomas, 94 Cal.App.2d 655, 659–660, 211 P.2d 321.)

Where, as here, case law has been changed after entry of a final judgment on the merits, the application of the doctrine obviously produces unfairness and hardship. However, the mere fact a judgment is erroneous or unfair will not prevent the application of res judicata. (McGaffey v. Sudowitz, 189 Cal.App.2d 215, 217, 10 Cal.Rptr. 862.) In Zeppi v. State of California, 203 Cal.App.2d 386, 388–389, 21 Cal.Rptr. 534, the court applied the doctrine to a final judgment entered for defendant before a drastic change in case law (abolition of sovereign immunity for tort liability). The court reversed an order vacating the prior judgment for ‘mistake,’ saying:

‘Such ‘mistakes' or ‘injustices' are not a ground for equity's intervention. So to hold would be to emasculate, if not wipe out, the doctrine of res judicata . . .. Our courts have repeatedly refused to treat the self-evident hardship occasioned by a change in the law as a reason to revive dead actions . . ..’ (Zeppi v. State of California, 203 Cal.App.2d 386, 388–389, 21 Cal.Rptr. 534, 536.)

A later court wrote:

‘The rule appears clear in California that a judgment which was contrary to the Constitution because it was based upon a statute later held invalid, in nevertheless res judicata in a subsequent suit.’ (Bank of America v. Department of Mental Hygiene, 246 Cal.App.2d 578, 585, 54 Cal.Rptr. 899, 904.)

On the other hand, on occasions courts simply refuse to apply res judicata on the ground the doctrine ‘is not to be applied so rigidly as to defeat the ends of justice.’ (Greenfield v. Mather, 32 Cal.2d 23, 35, 194 P.2d 1, 8; Guardianship of Di Carlo, 3 Cal.2d 225, 235, 44 P.2d 562; Natural Soda Products Co. v. City of Los Angeles, 109 Cal.App.2d 440, 446, 240 P.2d 993; McGaffey v. Sudowitz, supra, 189 Cal.App.2d 215, 217–218, 10 Cal.Rptr. 862; see gen. 46 Am.Jur.2d, Judgments, § 402, pp. 569–570.) In United States Fire Ins. Co. v. Johansen, 270 Cal.App.2d 824, 834, 76 Cal.Rptr. 174, 180, the court noted that ‘in cases where a grave injustice would otherwise result, there has been a tendency to depart from the general rule.’

Concomitant with the rule that the doctrine of res judicata will not be applied so rigidly as to defeat the ends of justice is the further proposition that a party who has urged and induced a ruling that a particular issue is not involved may not contend in a later action that the same issue was, or should have been, adjudicated in the earlier case. California cases invoking this rule are summarized in Lunsford v. Kosanke, spra, 140 Cal.App.2d 623, where at pages 628 through 631, 295 P.2d 432 at pages 435 the court stated:

‘Another consideration leading to the conclusion that defendant's plea of res judicata cannot be sustained is that he himself induced the ruling that no evidence was admissible under the pleadings in the first case. Our courts have in appropriate situations weighed the motions and objections of counsel in a former action to determine whether a contradictory stand was later assumed, and the general principle has been applied that one cannot take inconsistent positions to the injury of an opponent. Thus, where a party litigant successfully blocked the attempt of its opponents in an earlier case to amend their pleading and consolidate with another pending action to include certain issues, and later contended that such issues were res judicata because they might have been adjudicated in the earlier case, the Supreme Court in United Bank & Trust Co. v. Hunt, 1 Cal.2d 340, 345, 34 P.2d 1001, 1004, . . ., held that ‘Litigants can not successfully assume such inconsistent positions' and treated the situation developed in the first trial as ‘. . . tantamount to an express determination on the part of the court with the consent of opposing counsel to reserve the issues involved for future adjudication.’ Again, in Corona Inv. Co. v. Riedman, 11 Cal.App.2d 648, 54 P.2d 85 . . ., when a party in a quiet title action involving an oil lease sought to make an issue of title to the casing as well, and the move was successfully defeated, the opposing parties could not later claim the question was res judicata; for, said the court, ‘. . . They prevented plaintiffs' attempt to have the present issue determined in the former action and now inconsistently seek to have the court declare that the entire controversy, including the present issue, was in fact adjudicated in the former action.’ In Stock-well v. McAlvay, 10 Cal.2d 368, 74 P.2d 504 . . ., it was held that one who prevents the adjudication of an issue in an earlier trial by successfully demurring and moving to strike a portion of the pleading tendering the issue cannot later successfully assert the issue is res judicata because it might have been determined in the earlier case.

‘. . .

‘As was said in 30 American Jurisprudence at page 944:

“. . . a defendant who succeeds in defeating an action on the ground that the pleadings do not warrant a recovery on the facts proved is estopped in a second action, based on the theory successfully asserted by the defendant in the earlier action, to insist that the latter action is barred by the former judgment because the matter might properly have been settled in the former action.' (See also Leonard v. Schall, 132 Minn. 446, 157 N.W. 723 . . .; Hall v. Coyle, 38 Cal.2d 543, 546, 241 P.2d 236 . . ..)' (Lunsford v. Kosanke, 140 Cal.App.2d 623, 628–629, 631, 295 P.2d 432.)

(See also Davies v. Krasna, 12 Cal.App.3d 1049, 1056, 91 Cal.Rptr. 250.)

The instant case discloses a stronger basis for invoking an estoppel than any cited or referred to above. Here, in the early case, defendants conceded Blackwood's negligence,2 the very issue they now claim must be considered as having been adjudicated in their favor by the judgment. In fact, Blackwood's negligence was neither considered nor adjudicated in the early case because defendant convinced both the trial and appellate courts they were precluded from considering or adjudicating it by the guest statute. Under the circumstances defendants are estopped to claim Blackwood's negligence was or should have been adjudicated in the previous action.

Since the impediment of the guest statute had been removed by the Supreme Court decision in Brown v. Merlo, supra, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, since the statute of limitations had not run against her claim, and since defendants are estopped to urge res judicata, plaintiff's complaint alleging simple negligence was legally sufficient, and the demurrer should have been overruled.

The judgment is reversed. The case is remanded to the superior court with directions to overrule the demurrer and to allow the defendants a reasonable time in which to answer the complaint.


1.  Vehicle Code section 17158 provided that no person riding as a guest in a vehicle upon a highway had any right of action for civil damages against the driver (or any other person legally liable for the driver's conduct) unless the plaintiff in such action established that the guest's injury proximately resulted from the driver's intoxication or willful misconduct. The statute was adopted in 1929.

2.  See oral statement of Blackwood's counsel set out on page 3, ante. Defendant's brief in the first appeal contained a copy of the trial brief filed in the court below. The concluding paragraph began with these sentences: ‘In this case there is clear negligence because John Blackwood never saw the Galarza vehicle and made a left turn in front of it. By virtue of the Espe case this clearly is negligent.

AULT, Associate Justice.

GERALD BROWN, P. J., and WHELAN,* J., concur.

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