Litigation & Arbitration
Dec. 1, 2022
The primary rights theory of claim preclusion
The prudent pleader will initiate litigation by first identifying the harm (primary right) for which recovery is sought, and then asserting all possible legal theories, naming all possible responsible parties, and seeking all possible remedies.
David M. Axelrad
Partner
Horvitz & Levy LLP
Email: daxelrad@horvitzlevy.com
UC Hastings COL; San Francisco CA
Once a cause of action has been adjudicated, it's over and done, and cannot be relitigated. We used to call this the claim preclusion aspect of res judicata. Now we just call it claim preclusion. (Samara v. Matar (2018) 5 Cal.5th 322, 326 & fn. 1.) The principle serves the policy of repose and finality and sounds simple enough, but as is often true in the law, it's not. Let's discuss.
The basic contours of claim preclusion are we...
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