Case Number: SC119558    Hearing Date: August 13, 2014    Dept: O

SC119558
CAST v. AHARONOV, ET AL

Defendants’ Motion for Judgment on the Pleadings is GRANTED. Plaintiff’s complaint is the same as the compulsory x-complaint she previously filed in Defendant’s prior complaint (SC113840). Plaintiff dismissed that x-complaint and was not entitled under CCP 426.30 to re-file it as a new complaint. Judgment to be entered in favor of Defendants. Defendants to submit order and judgment within 7 days.

REASONING
Procedural Issues: Defendants move for judgment on the pleadings on grounds that the FAC is barred as a re-filed compulsory x-complaint. Defendants previously demurred to the same FAC on different grounds. As such, the motion for judgment on the pleadings is permissible. An MJP may be brought despite a prior demurrer, so long as “the moving party did not demur to the complaint or answer…on the same grounds as is the basis for the [MJP].” See CCP §438(g)(2).

ANALYSIS: Defendants move for judgment on the pleadings on grounds that (1) the complaint is barred by CCP 426.30, as it is identical to the x-complaint filed in Defendants’ prior action against her; and (2) the action is time-barred under CCP 340.5. Plaintiff filed no opposition. However, Plaintiff sent the Court an ex parte letter indicating that she did not consent to filing this action and has no interest in its outcome.

CCP §426.30(a) provides that “if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” A “related cause of action” in CCP §426.30 is defined as “a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” CCP §426.30(c).

In order to be barred under CCP §426.30, the compulsory x-claim must have “existed” at the time defendant filed its answer. “The related cause of action must be one that was in existence at the time of service of the answer (§ 426.30, subd. (a)); otherwise, the failure to assert it in prior litigation is not a bar under the statute.” Align Technology, Inc. v. Bao Tran (2009) 179 Cal.App.4th 949, 968-969. A defendant must be aware of the x-claim in order for it to “exist” under CCP §426.30. Id.

Defendants attach Plaintiff’s x-complaint from SC113840 as Exhibit E to request for judicial notice. The claims alleged are identical to those in Plaintiff’s complaint. There is therefore no dispute that the claims in Plaintiff’s complaint existed when she filed her answer in SC113840, nor is there any dispute that Plaintiff’s instant complaint and prior x-complaint are substantially the same.

Plaintiff voluntarily dismissed her x-complaint in SC113840 on 3/5/12. The fact that the x-complaint was dismissed does not insulate Plaintiff from the effects of CCP 426.30. “[A] voluntary dismissal does not protect a cross-complainant from a later contention that a dismissed cause of action in a cross-complaint was compulsory and therefore required to be brought and adjudicated in the action initiated by the plaintiff. Instead, such a dismissal raises the possibility that the judgment in the action, if affirmed on appeal, will activate the statutory bar against any subsequent attempt by the cross-complainant to reinitiate prosecution of the dismissed cause of action.” Hill v. City of Clovis
(1998) 63 Cal.App.4th 434, 445.

Defendants’ Motion for Judgment on the Pleadings is GRANTED. Plaintiff’s complaint is the same as the x-complaint she previously filed in Defendant’s prior complaint (SC113840). Plaintiff dismissed that x-complaint and was not entitled under CCP 426.30 to re-file it as a new complaint.