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When did the California Supreme Court make this ruling? In 1952. Nevertheless, most attorneys in California either pack up and quit after a judgment on demurrer or file a lengthy and expensive appeal which can take up to two years. Most attorneys have no idea they can simply file a new action regarding the same incident or involving the same “primary right” if they can overcome the substantive defect in the former action by alleging new or additional facts. There may be no need to appeal the judgment of dismissal. Just file a new action and add new or additional facts which state a cause of action if you can.

In California, after a full trial on the merits, a judgment is res judicata not only as to issues actually raised, but also as to issues and legal theories which could have been raised. However, it has been the settled rule in California since 1952 that a judgment entered after the sustaining of a general demurrer does not have such broad res judicata effect. Keidatz v. Albany (1952) 39 Cal. 2d. 826, 830.

The procedural effect of a judgment on demurrer appears to be sui generis. It is a judgment on the merits to the extent that it adjudicates that the facts alleged do not constitute a cause of action, and will, accordingly, be a bar to a subsequent action alleging the same facts. (See v. Joughin, 18 Cal. 2d 603, 606-609 [116 P.2d 777]; Goddard v. Security Title Ins. & Guar. Co., 14 Cal. 2d 47, 52 [92 P.2d 804]; Fay v. Crags Land Co., 62 Cal. App. 2d 445, 448 [145 P.2d 46]. Moreover, even though different facts may be alleged in the second action, if the demurrer was sustained in the first action on a ground equally applicable to the second, the former judgment will also be a bar. (Robinson v. Howard, 5 Cal. 428, 429; Goddard v. Security Title Ins. & Guar. Co., supra.) If, on the other hand, new or additional facts are alleged which cure the defects in the original pleading, it is settled that the former judgment is not a bar to the subsequent action whether or not the plaintiff had an opportunity to amend his complaint.

The rule respecting such judgments is illustrative of the line that has been drawn beyond which a plaintiff may not go if he hopes thereafter to start again. It is analogous to the rule that was applicable to nonsuits before section 581c was added to the Code of Civil Procedure in 1947. A judgment of nonsuit was not on the merits, and a plaintiff could start anew and recover judgment if he could prove sufficient facts in the second action. (Herdan v. Hanson, 182 Cal. 538, 542 [189 P 440]; Estate of Sharon, 179 Cal. 447, 461 [177 P. 283]; City & County of San Francisco v. Brown, 153 Cal. 644, 648 [96 P. 281].)

In 1994, I prepared an appeal in the U.S. Court of Appeals for the Ninth Circuit seeking reversal of a case that had been dismissed based on the alleged res judicata effect of a prior judgment after the sustaining of a general demurrer. Although the case was reversed on other grounds (different primary right), at oral argument all three justices on the panel agreed that Keidatz v. Albany was still the controlling law in California.