iLaw Dictionary			USAConstitution Law
						California			BankruptcyCode.US
						Law Dictionary			iBusiness Center.US
						Primary Right			United States Law.US

A Legal and Business Portal-Home

iLaw Dictionary
California
Law Dictionary
Primary Right Theory
(Hindin v. Rust)

The Primary Rights Theory of Code Pleading
(Hindin v. Rust)

 Whether a complaint in fact asserts one or more causes of action for pleading purposes depends on whether it alleges invasion of one or more primary rights.  “The primary rights theory is a theory of code pleading that has long been followed in California.  It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.  [Citation.]  The most salient characteristic of a primary right is that it is indivisible:  the violation of a single primary right gives rise to but a single cause of action.  [Citation.]”  (Crowley v. Katleman (1994) 8 Cal.4th 666, 681 (Crowley) [suit for malicious prosecution lies for bringing an action charging multiple grounds of liability when some but not all of those grounds were asserted with malice and without probable cause].)  “As far as its content is concerned, the primary right is simply the plaintiff’s right to be free from the particular injury suffered.  It must therefore be distinguished from the legal theory on which liability for that injury is premised.”  (Ibid.)

            The manner in which a plaintiff elects to organize his or her claims within the body of the complaint is irrelevant to determining the number of causes of action alleged under the primary right theory.  “[I]f a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action.  On the other hand, if a plaintiff alleges that the defendant’s single wrongful act invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint.”  (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364.)  Specifically in the context of a malicious prosecution action the Supreme Court has explained, “When a complaint alleges multiple theories of liability or ‘counts,’ the counts ‘are merely ways of stating the same cause of action differently.’  [Citation.]  Accordingly, the only way a litigant can show probable cause for the cause of action as a whole—or for the ‘primary right’—is to show probable cause for each of the counts or theories alleged.  In this event the whole is indeed the sum of the parts.”  (Crowley, supra, 8 Cal.4th at p. 683, fn. 11; and see Jenkins v. Pope (1990) 217 Cal.App.3d 1299, fn. 3 [“Violation of a single primary right gives rise to only one cause of action, even if a plaintiff has various forms of relief or theories of relief available”].) 

            In this case the underlying federal action by State Farm apparently asserted the invasion of two different primary rights by the attorney appellants, the attorneys for State Farm’s former insureds—one based in contract and another grounded in the right to be free from fraudulent conduct.[7]  But the attorney appellants’ malicious prosecution action sought to vindicate a single primary right—the right to be free from defending against a lawsuit initiated with malice and without probable cause.[8]  Although State Farm allegedly breached that right in two ways, it nevertheless remained a single right.  (Crowley, supra, 8 Cal.4th at p. 683 [“under the primary right theory a properly pleaded cause of action must be premised on a single primary right even thought it states multiple grounds of liability”]; see Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.)

            State Farm argues that Crowley, supra, 8 Cal.4th at pages 678 to 679,  “actually supports [its] position” as “it holds that each separate theory of liability can support a separate malicious prosecution claim and could be sued upon independently.” ~(RB 37)~ Quite to the contrary, the Supreme Court in Crowley specifically observed that, if Crowley (the malicious prosecution plaintiff) had filed a second malicious prosecution action alleging that the defendants lacked probable cause for the ground of their will contest that he had omitted from his original malicious prosecution complaint, “defendants could have invoked the primary right theory to support a plea in abatement [if the first action was still pending when the second was filed] or, if the [first action was concluded in defendants’ favor], the bar of res judicata.”  (Crowley, supra, 8 Cal.4th at p. 682.)  “‘Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.’”  (Id. at pp. 681-682.) 

            As the Supreme Court reaffirmed in Crowley, supra, 8 Cal.4th at page 671, “a suit for malicious prosecution lies for bringing a[ prior] action charging multiple grounds of liability when some but not all of those grounds were asserted with malice and without probable cause.”  As a matter of “policy under the substantive law of malicious prosecution,” a defendant cannot escape liability by showing “partial probable cause” for the underlying action.  (Id. at pp. 678, 683.)   It follows then that a motion for summary adjudication purporting to establish that some but not all of the multiple grounds for liability asserted in the prior action were brought with probable cause is improper for failure to completely dispose of an entire cause of action as required under subdivision (f)(1) of section 437c.[9]  (Crowley, supra, 8 Cal.4th at pp. 678, citation omitted, italics added [“‘it is not necessary that the whole proceeding be utterly groundless, for, if groundless charges are maliciously and without probable cause, coupled with others which are well founded, they are not on that account less injurious, and, therefore, constitute a valid cause of action.’  [Citations.]”].)

Hindin v. Rust 5/24/04 B160031CA2/7

May 24 2004

B160031 [PDF] [DOC]

Hindin v. Rust 5/24/04 B160031CA2/7

Thomas - Legislative Information on the Internet |Check Your Credit Score
Directory of Medical Dictionaries: Table of Contents | California Injury (Torts) Law
USA Entertainment.US | FederalCriminalProcedure.Com | United Statea News
FederalCriminalProcedure.Com | iLaw Dictionary.Com |  Library of Congress
United States Law Consumer Law TITLE PAGE | USA Entertainment.US
iBusiness Center.US | United States Law: Constitutional Law: Constitutions of  The World: TITLE PAGE
California Contracts Law.Com | California Injury (Torts) Law
Phone Directories From Around the World New | California Law Revision Commission 
California Civil Procedure.Com | Federal Civil Procedure.Com