What is the effect of claim preclusion on an action where the claim was not expressly pleaded or otherwise urged?

California, United States of America


The following excerpt is from Estate Of Richard G. Olsen v. Curry, H034704, No. CV161940, PR044403 (Cal. App. 2010):

With claim preclusion, if an issue "could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged." (Sutphin v. Speik (1940) 15 Cal.2d 195, 202.) "A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable." (Ibid.; In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1028.)

The secondary aspect of the doctrine-referred to as issue preclusion or collateral estoppel-generally "bars the relitigation of specific issues that were actually litigated in an earlier proceeding and decided adversely to the party against whom the doctrine is asserted." (Ferraro v. Camarlinghi, supra, 161 Cal.App.4th at p. 531; Gikas v. Zolin (1993) 6 Cal.4th 841, 848-849.)

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