Rohrbasser

In this cross-action for fraud, breach of contract, and declaratory relief against cross-defendant, Les E. Lederer, cross-complainant, Daniel M. Rohrbasser, appeals from a judgment entered after the trial court granted the motion of cross-defendant for summary judgment. The principal issue presented by this appeal is whether the trial court erred in determining that the cross-complaint is barred by the doctrine of res judicata. We answer this question in the affirmative and conclude that the judgment should be reversed.

Statement of Facts

In order to understand the facts of this appeal, it will be necessary for us to relate the factual profile of two prior lawsuits in addition to the underlying action of the present cross-action.

A. First Action

On January 26, 1977, Landale S. A., a Swiss corporation (Landale herein), commenced an action for damages against Rohrbasser, Paul Lorda, *294 Landlord Realty Investments, Inc., and others, seeking to recover moneys advanced to the parties for investment purposes.

From the record it appears that this suit was settled. The parties, including Rohrbasser and his attorney, signed a settlement agreement which required, among other…

I respectfully dissent. I would hold the trial court properly determined Rohrbasser’s cross-complaint in the present action was barred due to the doctrine of res judicata since in his March 4, 1980, motion to vacate the default and set aside the default judgment in the second action, Rohrbasser was not denied the opportunity fully to present all evidence in support of his motion.

I. The Trial Court Properly Granted the Respondent’s Summary Judgment Motion Since the Appellant’s Cross-complaint Was Barred by Collateral Estoppel.

Collateral estoppel bars relitigation of an issue decided at a previous trial if the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if the previous trial resulted in a final judgment on the merits; and if the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial. (People v. Taylor (1974) 12 Cal.3d 686, 691 [ 117 Cal.Rptr. 70 , 527 P.2d 622 ]; Zimmerman v. Stotter (1984) 160 Cal.App.3d 1067, 1075 [ 207 Cal.Rptr. 108 ].)

Rohrbasser acknowledges the denial of a motion to vacate can be a bar to a later action brought on the same grounds.…

Lenske, Lenske & Heller, Lawrence E. Heller and Mark L. Edwards for Cross-complainant and Appellant.

Parkinson, Wolf, Lazar & Leo, Maria Rodriguez, Steven M. Slavitt and Roger A. Parkinson for Cross-defendant and Respondent.

OPINION

THOMPSON, J.

In this cross-action for fraud, breach of contract, and declaratory relief against cross-defendant, Les E. Lederer, cross-complainant, Daniel M. Rohrbasser, appeals from a judgment entered after the trial court granted the motion of cross-defendant for summary judgment. The principal issue presented by this appeal is whether the trial court erred in determining that the cross-complaint is barred by the doctrine of res judicata. We answer this question in the affirmative and conclude that the judgment should be reversed.

In order to understand the facts of this appeal, it will be necessary for us to relate the factual profile of two prior lawsuits in addition to the underlying action of the present cross-action.

On January 26, 1977, Landale S.A., a Swiss corporation (Landale herein), commenced an action for damages against Rohrbasser, Paul Lorda, Landlord Realty Investments, Inc., and others, seeking to recover moneys advanced to the…