Wittenberg v. Bornstein, No. A154994 (D1d3 Jun. 29, 2020)
This seems to be a contentious litigation over a partnership breakup. On the verge of trial in a case with numerous claims and cross claims, Plaintiff here filed a separate complaint that basically re-alleged some of the cross-claims that were about to be tried. The trial court granted a demurrer on because the claims in the second case were compulsory cross-claims in the first case under § 426.30, and thus couldn’t be brought in a separate action.
The Court of Appeal affirms on the merits in an unpublished part of the opinion. But it publishes on whether Plaintiff forfeited three of her many grounds for appeal by failing to present them to the trial court. In particular, Plaintiff’s appeal argues that: (1) the claims in the second suit were not compulsory because the first suit plaintiff’s complaint did not state valid clams; (2) the partnership dissolution proceedings in the first suit were “special proceedings,” to which 426.30 did not apply; and (3) her claims weren’t compulsory because, in the first action, personal jurisdiction against her was lacking. She didn’t make any of these arguments to the trial court.
Plaintiff argues, however, that a demurrer cannot be sustained if the complaint states a cause of action under any legal theory, even one raised for the first time on appeal. But that rule applies to general demurrers for failure to state a claim. The demurrer here was a special demurrer based on the fact that an action where the claims could be brought was already pending. That doesn’t implicate the “any legal theory” rule, the purpose of which is to favor a resolution on the merits. To the contrary, it implicates the policy of preventing piecemeal litigation and a multiplicity of lawsuits. So although the Court of Appeal might have discretion to reach legal theories not raised in the trail court, it had no obligation to do so. And it declines to do so here.
Affirmed.
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