MUNGER et al. v. LOEB

1 This Court takes judicial notice of the related action, Finger v. Loeb, Santa Cruz Superior Court no. 22CV01046 and its companion appellate unpublished opinion (granting cross-defendants’ request for judicial notice). (Evidence Code § 451.)

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 4, 2026 TIME: 8:30 A.M.

unwind the 515 Laguna transaction. All that remains in this action is Loeb’s cross-complaint at issue here.)

II. DISCUSSION A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint. As with a demurrer, the grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice. A trial court’s determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. In addition, it gives them a liberal construction. (Code Civ. Proc., § 438; Eckler v. Neutragena Corp. (2015) 238 Cal.App.4th 433, 439; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.)

Res judicata precludes the re-litigation of a cause of action that previously was adjudicated in another proceeding between the same parties, or parties in privity with them. (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding. (Ibid.) Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated. (Ibid.)

Cross-complainant argues res judicata does not apply because she seeks independent tort theories and damages against her agents in the real estate transactions, and those issues were not determined by the other action’s arbitration award. The Court disagrees that res judicata applies to all allegations and bars the crosscomplaint.

First, as to moving parties’ argument that the Finger appellate opinion has conclusively established that Alvarez made the requisite disclosures to Loeb, and therefore her cross-complaint is barred, the transaction in the Finger opinion is just one of the transactions. The real estate transactions for 511 and 515 Laguna involved a single seller (Loeb), at least one realtor (Alvarez), but two distinct buyers (511 – Finger plaintiffs; 515 – Munger plaintiffs). To the extent that the cross-complaint seeks redress for the 511 Laguna transaction, the Court agrees those allegations are barred by res judicata based on the Finger appellate opinion (Alvarez “appears to have made all the disclosures required by the Statute”2).

However, the crosscomplaint also relates to the 515 Laguna transaction, alleging it was a separate contract. (Cross- Complaint at ¶¶ 6, 12.) Since this Court must assume all facts in the cross-complaint to be true, and since the 515 Laguna transaction was not before the Finger appellate court, this Court assumes Loeb’s allegations that Alvarez failed to make proper disclosures here to be true.

2 Finger, 2024 WL 4862995, at *4.

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 4, 2026 TIME: 8:30 A.M.

Therefore, the Court will permit leave to amend to eliminate all allegations related to 511 Laguna.

Second, the Court disagrees that Loeb’s claims regarding both properties constitute a single claim and a single primary right. Again, there are two contracts at issue, and the Finger appellate opinion resolved just one, 511 Laguna. Moving party’s legal authority, Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 579, presents a different factual pattern. There, a doctor sued his medical partnership claiming lost profits, and he lost at arbitration. He thereafter sued the partnership’s accountant claiming conspiracy to withhold profits.

His second suit was barred since the underlying bases of his claim were the same parties and transactions (his partners, their agent, and company revenue). The same is true of the fact pattern in Brinton v. Bankers Pension Servs., Inc. (1999) 76 Cal.App.4th 550, 556 [investor sought lost profits against the broker, lost, and then made the same claims against the financial services company]. But here, Loeb’s cross-complaint, at least in part, relates to a different contract with different parties which has not been adjudicated.

Finally, the Court disagrees that Loeb’s cross-complaint presents a “primary right theory.” “ ‘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.’ (Crowley, supra, 8 Cal.4th at p. 681.) It is, simply put, ‘the plaintiff’s right to be free from the particular injury suffered.’ (Ibid.) Viewed in these terms, ‘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.’ (Ibid.)” (Choi v.

Sagemark Consulting (2017) 18 Cal.App.5th 308, 336.) “[A]pplication of plaintiffs’ theory would be somewhat novel here, given that the ‘primary right theory has a fairly narrow field of application’ most commonly invoked ‘when a plaintiff attempts to divide a primary right and enforce it in two suits.’ (Crowley, supra, 8 Cal.4th at p. 682.)” (Ibid.)

Loeb is not dividing her single claim against Alvarez and his employer into two suits; instead, she asserts separate claims related to two distinct contracts. As stated above, the Court agrees she is precluded from claims against cross-defendants for the 511 Laguna transaction, but her claims related to the 515 Laguna contract are separate. This does not mean her claims will survive a different dispositive motion, but for a motion that requires the Court to take the cross-complaint as true, her claims as to 515 Laguna survive for now.