Wittenberg v. Bornstein
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In 2016-2018 several actions and cross-actions were filed by substantially the same parties concerning a law partnership and other businesses Wittenberg filed one lawsuit, asserting individual and derivative causes of action against Daniel and others which related to claims previously brought by Daniel in a separately filed action. The trial court sustained Daniel’s demurrer to Wittenberg’s first amended complaint without leave to amend, finding it barred by the compulsory cross-complaint statute. (Code Civ. Procedure 426.10).
The court of appeal affirmed. Wittenberg forfeited several legal arguments that she failed to present to the trial court below. The court rejected Wittenberg’s contention that an appellate court is required to consider all arguments challenging an order sustaining a demurrer based on the compulsory cross-complaint statute when such arguments purport to raise purely legal issues that are belatedly raised for the first time on appeal. The claims in Wittenberg’s first amended complaint below were barred on their face by the compulsory cross-complaint statute because they were logically related to Daniel’s cross-complaint in the previously filed action.
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