LLooyyoollaa ooff LLooss AAnnggeelleess LLaaww RReevviieeww Volume 23 Number 1 Symposium—The Death Penalty Article 13 Approaches the 1990s: Where Are We Now 11-1-1989 RReess JJuuddiiccaattaa:: SShhoouulldd CCaalliiffoorrnniiaa AAbbaannddoonn PPrriimmaarryy RRiigghhttss Robin James Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Robin James, Res Judicata: Should California Abandon Primary Rights, 23 Loy. L.A. L. Rev. 351 (1989). Available at: https://digitalcommons.lmu.edu/llr/vol23/iss1/13 This Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. RES JUDICATA: SHOULD CALIFORNIA ABANDON PRIMARY RIGHTS? I. INTRODUCTION An automobile accident occurs where one driver is clearly at fault. The accident victim is hospitalized for injuries, and the car is destroyed. How many of the victim's "primary rights" have been violated? If the victim sues the other driver, how many "causes of action" will the victim have? How many times will the victim be allowed to sue the other driver in order to collect all of the damages due? Should it matter that the victim suffered injuries to both person and property in the same occur- rence? The answers to these questions depend on whether the jurisdic- tion whose laws govern the suit defines a cause of action for purposes of res judicata in terms of primary rights, or in terms of the transaction or occurrence giving rise to the plaintiff's claim.1 California courts analyze a cause of action for purposes of res judi- 1. The following chart shows how a "claim," a "cause of action," and the preclusive effect of a lawsuit differ in both types of jurisdictions for an auto accident victim who sustains bodily injury and property damage in the same accident: Same Transaction Jurisdiction Primary Rights Jurisdiction An accident victim has An accident victim has -two claims: bodily injury and property -two claims: bodily injury and damage; property damage; -one cause of action because both kinds of -two causes of action because injury to damage arose out of the same transaction or person and injury to property violate occurrence. different primary rights. -Preclusive effect of first suit: If the -Preclusive effect of first suit: If the plaintiff brings only one claim in the first plaintiff brings only one claim in the suit, the second claim will be barred by res first suit, the second claim will not be judicata. barred by res judicata. If the plaintiff wins the first suit, plaintiff can plead collateral estoppel regarding the issue of the defendant's negligence. Throughout this Comment, "claim" generally refers to the grounds for relief asserted in the complaint, while "cause of action" generally refers to: (a) with respect to joinder, the claims that may be joined in the same lawsuit, or (b) with respect to res judicata, any claims which preclude a second suit. However, the California Code of Civil Procedure requires the plaintiff's complaint to state "the facts constituting the cause of action in ordinary and concise language." CAL. CIV. PROC. CODE § 425.10(a) (West Supp. 1989) (emphasis added). Thus, the Author has used the term "cause of action" in the discussions of California pleading and amendment so that the language in those sections is consistent with the language in California statutes and case law. Unfortunately, the terms "claim" and "cause of action" are often used interchangeably. Even Black's Law Dictionary treats the terms as synonymous. BLACK'S LAW DICTIONARY 224 (5th ed. 1979). Generally, LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 23:351 cata according to "primary righti."2 In California and other primary rights jurisdictions, certain rights are accorded "primary" status; these rights include the right to be free from injury to person and the right to be free from injury to property The number of primary rights violated is significant because it determines the number of causes of action a plaintiff has in California.4 The victim's primary rights to be free from personal injury and free from injury to property were violated in the above-described accident, and the victim therefore has two causes of action. The number of causes of action is crucial in determining whether the victim can file two lawsuits based on the accident. An axiom of res judicata6 states that a plaintiff must sue on the entire cause of action at [t]he term "cause of action" is not easily defined, and the authorities have laid down no thoroughly satisfactory and all embracing definition. It may mean one thing for one purpose and something different for another, depending on whether a pleading is good upon demurrer, whether an amendment of pleading is permissible, or whether the principle of res judicata applies. 1 AM. JUR. 2D Actions § 1 (1962). In California, "the meaning of 'cause of action' remains elusive and subject to frequent dispute and misconception," 4 B. WITKIN, CALIFORNIA PROCEDURE § 24 (3d ed. 1985) (cita- tions omitted), because the term takes on different meanings in different procedural contexts. Id. With respect to federal courts, the problem has been described as follows: The relationship between the terms "cause of action," "claim," and "demand" has been somewhat a matter of fashion. The Federal Rules [of Civil Procedure] do not use "cause of action," apparently to avoid the technical meaning of the term at common law, and speak of "claims for relief" (Rule 8) or "claims" (Rules 13, 18). The terms are used as alternatives in the Removal Statute .... The Restatement (Second) [of] Judgments, like the Federal Rules, abandoned the term "cause of action" and speaks in terms of the dimension of a "claim" for purposes of merger and bar. Analysis of the res judicata problem in terms of "cause of action" persists, however, and the term appears in many cases. Thus, sometimes the cases proceed upon the theory that a single cause of action may be composed of several claims, or that a single claim can be composed of various legal theories or demands. lB J. MOORE, J. LUCAS, & T. CURRIER, MOORE'S FEDERAL PRACTICE, 0.410[l], n.2 (2d. ed. 1988) (citations omitted) [hereinafter 1B MOORE'S FEDERAL PRACTICE]. 2. 4 B. WITKIN, supra note 1, § 23. 3. Comment, Cause ofA ction Broadened in California, 1 STAN. L. REV. 156, 158 (1948). 4. 4 B. WITKIN, supra note 1, § 23. See infra notes 21-171 and accompanying text for a discussion of the development and application of the primary rights theory in California. 5. Comment, supra note 3, at 158. 6. Res judicata is a judge-made doctrine based on the underlying premise that "[a] party should not be allowed to relitigate a matter that it already had opportunity to litigate." F. JAMES & G. HAZARD, CIVIL PROCEDURE § 11.2, at 589 (3d ed. 1985). The doctrine is based on two principles. First, a defendant should not be required to defend against the same claim more than once; second, the state has an interest in bringing an end to litigation. J. FRIEDENTHAL, M. KANE, & A. MILLER, CIVIL PROCEDURE § 14.3, at 615 (1985) [hereinaf- ter M. KANE]. November 1989] RES JUDICA TA AND PRIMARY RIGHTS one time and may not "split" the cause of action.7 The victim in this example has two distinct causes of action.' Thus, the victim can proceed against the defendant in two separate suits without "splitting" the cause of action, and res judicata will not bar the second suit.9 According to the primary rights theory, the fact that the victim sustained both kinds of damage in the same transaction or occurrence has no bearing on the preclusive effect of the first lawsuit. 10 By contrast, in the majority of jurisdictions, primary rights are irrel- evant. Instead, in the res judicata analysis, the cause of action is cotermi- nous with the transaction or occurrence that caused the plaintiff's damage.II In a same transaction or occurrence jurisdiction, the accident victim in the example above has a single cause of action because the dam- 7. R. CASAD, REs JUDICATA IN A NUTSHELL § 2.1, at 18 (1976). 8. 4 B. WITKIN, supra note 1, § 43. 9. Id. § 35, at 77. 10. Agarwal v. Johnson, 25 Cal. 3d 932, 954, 603 P.2d 58, 72, 160 Cal. Rptr. 141, 155 (1979); Comment, Res Judicatai n California, 40 CALIF. L. REv. 412, 416 (1952). 11. RESTATEMENT (SECOND) OF JUDGMENTS § 24 comment a (1981). The Restatement (Second) of Judgments defines a cause of action for purposes of res judicata as follows: (1) When a valid and final judgment rendered in an action extinguishes the plaintiff's claim .... the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. (2) What factual grouping constitutes a "transaction," and what groupings constitute a "series," are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. Id. See also Comment, Res Judicataa nd the Common Automobile Accident-The Problem of Splitting the Cause of Action, 12 ALA. L. REv. 364, 367-68 (1960); Annotation, Simultaneous Injury to Person and Property as Giving Rise to Single Cause of Action-Modern Cases, 24 A.L.R. 4th 646 (1983). This annotation does not use "primary rights" or "same transaction or occurrence" language. The analysis therein is limited to lawsuits involving personal injuries and property damage; it does not discuss other combinations of injuries. However, the annota- tion divides jurisdictions into those finding one, as opposed to two, causes of action arising from the auto accident example presented at the beginning of this Comment. Decisions in the following nine states "support the broad proposition that a wrongful act or wrongful conduct which causes both personal injuries and property damage to the same individual infringes different rights and vests in that individual distinct causes of action": Cali- fornia, Connecticut, Illinois, Indiana, Montana, New Jersey, New York, Oregon, and Virginia. Id. at 685-86. By contrast, most jurisdictions emphasize the "causative aspects of a breach of legal duty." Id. at 650. Consequently, decisions in the following states "support the broad proposi- tion that a single act which causes simultaneous injury to the physical person and property of one individual gives rise to only one cause of action": Alabama, Arizona, Arkansas, Connecti- cut, Delaware, Florida, Georgia, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Mas- sachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South 354 LOYOLA OF LOS ANGELES LAW REVIEW [V/ol. 23:351 age resulted from the same "occurrence," even though the victim suf- fered injury to both person and property. A plaintiff may not relitigate a cause of action if a valid and final judicial determination was reached in a prior suit involving the same cause of action. Therefore, under the same 12 transaction or occurrence definition, the defendant can prevent the plain- tiff from bringing a second suit on a claim that arose out of the same transaction or occurrence that gave rise to the first claim.3 For purposes of res judicata, the same transaction definition is supe- rior to the primary rights definition for two reasons. First, res judicata is so closely related to pleading, amendment, and joinder that the limita- tions placed upon these procedures should determine whether a second suit is precluded by res judicata. Prior to 1971, the rules governing all of these procedures were based on legal categories. However, the current rules governing pleading, amendment, and joinder are based on facts, while the current rules governing res judicata are based on legal catego- ries. Second, the concept of primary rights is inherently ambiguous. Any primary right can be defined broadly or narrowly, and no aspect of the primary rights theory limits the scope of the right. This absence of guidance has allowed some courts to define a primary right so broadly that it engulfs the entire occurrence giving rise to the plaintiff's claim. Under these circumstances, the courts may actually be defining a cause of action in terms of the same transaction definition without acknowledg- ing that they are doing so. For these reasons, California should either require mandatory joinder of plaintiff's claims by statute if those claims arise out of the same transaction or occurrence, or join the majority of jurisdictions by adopting the same transaction definition of a cause of action. The inconsistency described above may not, by itself, justify change. However, the changes in pleading, amendment, and joinder have devel- oped largely in response to the demands for procedural simplicity4 and Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, and Wyoming. Id. at 653-55. The trend in federal courts is to use the same transaction definition to determine the preclusive effect of a suit. 1B MOORE'S FEDERAL PRACTICE, supra note 1, V0 .410[1], at 359- 60. 12. M. KANE, supra note 6, § 14.4, at 619-20; Comment, supra note 10, at 413. 13. M. KANE, supra note 6, § 14.4, at 626. 14. The Codes of Civil Procedure were created to correct the problems caused by the rigidity and complexity of the common-law system. See J. COUND, J. FRIEDENTHAL, A. MILLER, & J. SEXTON, CIVIL PROCEDURE, CASES AND MATERIALS ch. 4, § D, at 426-29 (4th ed. 1985) [hereinafter J. COUND] and authorities cited therein. See also infra notes 172-318 and accompanying text. November 1989] RES JUDICA TA AND PRIMARY RIGHTS judicial economy."5 The same transaction definition of a cause of action is easier for lawyers and judges to use, and easier for lay people to under- stand.16 Additionally, the same transaction definition is more conducive to judicial economy than the primary rights definition because the same transaction definition is usually broader, thus requiring litigation of more claims in a single lawsuit.I1 California's change to the same transaction definition would contribute to the completion of the task begun by re- form of related procedures: simplification and streamlining of the judi- cial process. This Comment first presents the basic components of primary rights in California by discussing the ideas of John Norton Pomeroy, the law professor to whom the creation of the primary rights theory is attributed, and by discussing how primary rights have been defined and applied by California courts. Second, the Comment shows how the bases of plead- ing, amendment, and joinder have evolved from legal categories to facts, and discusses how the continued use of the primary rights definition of a cause of action for purposes of res judicata is inconsistent with this devel- opment. Third, the Comment discusses the inherent ambiguity of the primary rights theory and the way in which the ambiguity allows Califor- nia courts to in effect employ the same transaction criteria while techni- cally adhering to the primary rights theory. The Comment concludes by suggesting that California should either (1) amend its joinder rules so that joinder of a plaintiff's claims is mandatory when the claims arise from the same transaction or occurrence or (2) adopt the same transac- tion or occurrence definition of a cause of action for purposes of res judi- cata set forth in the Restatement (Second) of Judgments18 and followed by a majority of states19 and federal courts.2° II. PRIMARY RIGHTS IN CALIFORNIA A. Philosophical Underpinnings-TheP rimary Rights Theory of John Norton Pomeroy The origin of the primary rights theory is attributed to Professor 15. See Friedenthal, Joinder of Claims, Counterclaims, and Cross-Complaints:S uggested Revision of the CaliforniaP rovisions, 23 STAN. L. REV. 1, 13 (1970). See also infra notes 505- 27 and accompanying text for a discussion of the relationship between judicial economy and the primary rights theory. 16. C. CLARK, CODE PLEADING § 19, at 137 (2d ed. 1947). 17. Friedenthal, supra note 15, at 13. 18. RESTATEMENT (SECOND) OF JUDGMENTS, supra note 11, § 24. 19. Friedenthal, supra note 15, at 12. 20. 1B MOORE'S FEDERAL PRACTICE, supra note 1, 0.410[1], at 359. LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 23:351 John Norton Pomeroy,21 a nineteenth-century scholar whose work sig- nificantly influenced post-common-law pleading developments.22 At common law, a plaintiff was required to plead in terms of a limited number of standardized "forms of action,"'23 and if the plaintiff chose the incorrect "form," the case was dismissed regardless of the merits.24 Ad- ditionally, before the mid-1900s, the law courts and the equity courts were separate systems; thus, if the plaintiff sought both legal and equita- ble relief for the same wrong, the plaintiff often had to sue twice in sepa- rate courts.25 After 1848,26 the forms of action were abolished,27 and the law and equity courts were merged.21 Under the new system, the empha- sis on the "form" of the action diminished; instead, the plaintiff was re- quired to allege sufficient facts in his complaint to state a "cause of action" under any legal theory.29 In the context of these major changes, Pomeroy thought it imperative to define the term "cause of action" with exactitude and precision.30 Pomeroy believed that before a cause of action is viable, the plaintiff must possess a "primary right," and the defendant must owe a corre- sponding "primary duty.",31 The following passage expresses the crux of the primary fights theory: Every judicial action must therefore involve the following ele- ments: a primary right possessed by the plaintiff, and a corre- sponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remediald uty resting on the defendant springing from this delict, and finally the remedy or relief itself. Every action, however complicated or however simple, must contain these essential elements. Of these elements, the primary right 21. 4 B. WITKIN, supra note 1, § 23, at 66-67. 22. C. CLARK, supra note 16, § 15, at 78. 23. F. JAMES & G. HAZARD, supra note 6, § 1.4, at 10. 24. Id. See infra notes 172-94 and accompanying text for a discussion of the common-law forms of action. 25. F. JAMES & G. HAZARD, supra note 6, § 1.5, at 16-17. 26. New York's enactment of the Code of Civil Procedure in 1848, 1848 N.Y. Laws 497, ch. 379, §§ 1-391, initiated major reform of common-law system. F. JAMES & G. HAZARD, supra note 6, § 1.6, at 15-16. See infra notes 217-31 and accompanying text. 27. C. CLARK, supra note 16, § 15, at 78. 28. Id. 29. F. JAMES & G. HAZARD, supra note 6, § 3.5. 30. J. POMEROY, CODE REMEDIES § 346, at 527 (5th ed. 1929). "To avoid... tendency to confusion, it is absolutely necessary to ascertain and fix with certainty the true meaning of the term 'cause of action.'" 31. Id. § 347, at 528. November 1989] RES JUDICA TA AND PRIMARY RIGHTS and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term, and as it is used in the codes of the several States. They are the legal cause or founda- tion whence the right of action springs .... 32 Pomeroy developed a system of classification for the rights he thought were "primary."33 According to Pomeroy, the primary rights and corresponding primary duties fall into two divisions; the first encom- passes persons, and the second encompasses things.34 The division concerning persons consists of the rules that define the status of the person, or, in Pomeroy's words, the rules that determine the "capacities and incapacities of persons to acquire and enjoy legal rights, and to be subject to legal duties."35 Pomeroy noted that in the United States most class distinctions have been abolished; consequently, the divi- sion concerning persons is a relatively small part of American jurisprudence.36 Pomeroy separated his division concerning things into two classes: rights in rem, or "Real" rights, and rights in personam, or "Personal" rights.37 Real rights are "those which, from their very nature, avail to their possessor against all mankind, and a correlative duty rests alike upon every person not to molest, interfere with, or violate the right."38 32. Id. (emphasis added). The right/duty relationship described by Professor Pomeroy was an essential component of the plaintiff's statement of his cause of action at common law. In a common-law Declaration (the equivalent of a modem complaint, F. JAMES & G. HAZ- ARD, supra note 6, § 1.3, at 10), the plaintiff was required to allege: (I) the plaintiff's right; (2) the defendant's wrongful act which violated that right; and (3) damages. J. KOFFLER & A. REPPY, COMMON LAW PLEADING § 21, at 86 (1969). The emphasis on the right/duty rela- tionship changed with the advent of Code pleading. Under the Codes, the plaintiff was not supposed to focus on allegations of rights and wrongs, for such allegations amounted to con- clusions of law by the plaintiff. F. JAMES & G. HAZARD, supra note 6, § 3.5. Instead, the plaintiff was required to plead sufficient facts to state a cause of action under any legal theory, and the court was to decide which legal theory would apply. Id. See infra notes 217-43 and accompanying text for further discussion of code pleading. 33. 1 J. POMEROY, EQUITY JURISPRUDENCE §§ 92-95 (4th ed. 1918). Apparently, Pome- roy did not intend that his categories be construed as a definitive list of primary rights. "Every command or rule of private civil law creates a primary right in one individual and a primary duty corresponding thereto ....T hese rights and duties are, of course, innumerable in their variety, nature, and extent." Id. § 91. 34. Id. § 92. According to Pomeroy, his divisions "fall by a natural line of separation into two grand divisions .... " Id. 35. Id. Pomeroy distinguished between the rights governing an individual's capacity to contract with the rights governing the contract itself. Id. The right of a person to make a contract would be controlled by the rules concerning persons, while the rights arising from the contract itself would be controlled by the rules concerning things. Id. 36. Id. 37. Id. § 93. 38. Id. LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 23:351 By contrast, Personal rights "are those which avail to their possessor against a specified, particular person, or body of persons only, and the correlative duty not to infringe upon or violate the right rests alone upon such specified person or body of persons."39 Pomeroy divided the class of Real rights into three categories. The first included rights of property over land and chattels.40 The second included the rights possessed by every person over his own life, body, and reputation.4 The third included the rights which certain classes of per- sons, (namely, husbands, parents, and masters) have over certain other persons by virtue of domestic relations, (namely, wives, children, ser- vants and slaves).4' According to Pomeroy, any person who experiences a violation of a Real right is entitled to redress against any and all viola- tors, and every member of society has a corresponding duty to refrain from interfering with the Real rights of others.43 By contrast, Personal rights are not universally owned, and Personal duties are not universally owed; instead, Personal rights arise as a result of specific relationships between particular persons.' Pomeroy divided the class of Personal rights into two categories. The first was comprised of rights arising from contract.45 The second consisted of rights that ex- ist between particular persons by operation of law; these include quasi- contractual rights and rights that exist between husbands and wives, be- tween parents and children, between trustees and beneficiaries, and be- tween debtors and creditors.46 In sum, every person has Real rights against the entire population, and the entire population has a corresponding duty not to interfere with those Real rights. By contrast, a Personal right is enforceable only against particular individuals, and only those individuals owe a duty not to interfere with those Personal rights. 39. Id. 40. Id. § 94. This class was quite extensive; it included "[r]ights of property of every de- gree and kind over lands or chattels, things real or things personal." Id. 41. Id. 42. Id. Pomeroy elaborated on the nature of intra-familial property rights: Thus the husband is, by virtue of this right, entitled to the society of his wife, and the father is entitled to the services of his infant children, while a duty rests upon every person not to violate these rights by enticing away, seducing, or injuring the wife or child. This latter group of rights must not be confounded with those which the hus- band and wife, parent and child, master and servant, hold against each other, and which resemble in their nature the rights arising from contract. Id. These concepts are obviously outmoded. 43. Id. 44. Id. § 95. 45. Id. 46. Id. November 1989] RES JUDICA TA AND PRIMARY RIGHTS B. Application of the PrimaryR ights Theory in California According to prominent authority, California courts have accorded "flat acceptance" to Pomeroy's contention that the right/duty relation- ship defines a cause of action.47 The California courts have adhered to classification of causes of action by legal categories,48 and the legislature expressed California's commitment to a category-based cause of action as early as 1851.49 Such commitment was first reflected in California's for- mer joinder statute, former Section 427 of the California Code of Civil Procedure5. 0 That statute set forth separate classes of causes of action which were based on separate rights." Thus, California was committed to a category-based cause of action before Pomeroy published his writings and identified certain rights as "primary."52 Both Pomeroy's categories and the classes set forth in for- 47. 4 B. WITKIN, supra note 1, § 24. 48. See Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 750 F.2d 731 (9th Cir. 1984), cert denied, 474 U.S. 919 (1985) (applying California law) (no separate rights to be free from dejure and de facto segregation); McNulty v. Copp, 125 Cal. App. 2d 697, 271 P.2d 90 (1954) (distinguishing causes of action for recovery of real and personal property); Schermerhorn v. Los Angeles Pac. R.R. Co., 18 Cal. App. 454, 123 P. 351 (1912) (distinguish- ing causes of action for bodily injury and property damage). See infra notes 99-102 and ac- companying text for a discussion of NAACP, notes 77-95 and accompanying text for a discussion of McNulty, and notes 71-76 and accompanying text for a discussion of Schermerhorn. 49. 1851 Cal. Stat. 51, 59-60, ch. 5, § 64 (codified as amended at CAL. CIV. PROC. CODE § 427 (repealed 1971)). Former Section 427 read as follows: The plaintiff may unite several causes of action in the same complaint, when they all arise out of: Ist. Contracts, express or implied; or, 2d. Claims to recover specific real property, with or without damages, for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; or, 3d. Claims to recover specific personal property, with or without damages, for the withholding thereof; or, 4th. Claims against a trustee, by virtue of contract, or by operation of law; or, 5th. Injuries to character; or, 6th. Injuries to person; or, 7th. Injuries to property. But the causes of action so united shall all belong to only one of these classes, and shall affect all parties to the action, and not require different places of trial, and shall be separately stated. Id. 50. Holmes v. David Bricker, Inc., 70 Cal. 2d 786, 788, 452 P.2d 647, 649, 76 Cal. Rptr. 431, 433 (1969). 51. CAL. CIV. PROC. CODE § 427 (repealed 1971). See supra note 49 for the text of former Section 427. Often, claims held to be violations of separate primary rights also constituted separate causes of action that could not be joined under California's former joinder statute, CAL. CIV. PROC. CODE § 427 (repealed 1971). See Comment, supra note 3, at 158. 52. Pomeroy studied the code extensively. See generally J. POMEROY, CODE REMEDIES, supra note 30. Former Section 427 was enacted in 1851, 1851 Cal. Stat. 51, 59-60, ch. 5, § 64,