Ferraro v. Camarlinghi (161 Cal. App. 4th 509, 2008)

Opinion

RUSHING, P. J.

The fundamental precept of due process is that before

official action may be taken in derogation of an individual’s rights, liberties, or property, the individual must be permitted a fair opportunity to appear before the decisional authority and show, if he or she can, why the proposed action should not be taken. In the proceedings giving rise to this and two companion appeals, this principle was drowned in a maelstrom of procedural confiision and obfuscation. The unfortunate result has been a tremendous waste of time and resources.

The underlying controversy concerns the decision by decedent Jane E. Ferraro to leave all her property to her two children, respondents Susan Camarlinghi and Michael Kelley. One of her two stepdaughters, Patricia Dean Ferraro Hull, filed an action alleging that this disposition violated an agreement between decedent and her predeceased husband, Pat Ferraro, to divide the property among her two children and his two daughters, Patricia and appellant Sandra Ferraro. In the course of several civil suits and probate proceedings following decedent’s death, all of the claimants except appellant settled their differences without notice to her, and then secured a stipulated order from the court purporting to extinguish her rights against decedent’s estate and trust. The settling parties thereafter cited that order, and a purported default entered against appellant in one of the civil actions, to successfully obstruct all efforts by appellant to pursue her claims on the merits.

The present appeal is taken from an order striking appellant’s civil complaint following a rejection of her claim in the probate proceedings. The question presented is whether the trial court properly struck the complaint on the grounds that it was precluded by prior judgments or orders, the statute of limitations, or the compulsory cross-complaint rule. We conclude that the trial court erred because none of the orders cited as bars to the action was shown to possess the characteristics necessary to give them preclusive effect against her. We also hold that her claims were asserted within the applicable limitations period, and that the compulsory cross-complaint rule does not apply to those claims. Accordingly, we will reverse the judgment. In one of the companion appeals (Camarlinghi v. Ferraro (Mar. 27, 2008, H030777) [nonpub. opn.]), we hold that the court also erred by approving a decree of final distribution while appellant’s claims remained unresolved. In the other (Ferraro v. Ferraro (Mar. 27, 2008, H030206) [nonpub. opn.]), we hold that certain orders concerning appellant’s attempts to assert a cross-action in her sister’s civil case are not appealable.

Background

A. Patricia’s Civil Action and Appellant’s “Default”

On a date not disclosed by the record, decedent Jane Ferraro married Pat Ferraro. Pat had two children, Patricia and Sandra, by a prior marriage. Decedent likewise had two children, respondents Susan and Michael.

Pat died on July 15, 1987. In 1993, decedent established a trust of which respondents are the successor trustees. At the same time she executed a will leaving all of her tangible personal property to respondents, and the residue of her estate to the trustees of the trust. The will appointed respondents to be co-executors of the estate. It identified Patricia and appellant as “stepchildren now living” but declared an intent not to provide for any heir other than as specifically stated, and defined “child” not to include “stepchild.”

Decedent died on April 9, 2004. No attempt was made initially to probate her will, but on June 22, 2004, Susan filed a petition in Santa Cruz County, No. PR043226, to determine the existence of a trust.

On July 8, 2004, Patricia filed a civil action in Santa Clara County alleging that decedent and Pat had agreed orally and in writing that “upon the death of the last survivor, all of their estate properties and assets would be left equally to the four children . . . .” The complaint alleged in essence that decedent had violated this agreement by selling or appropriating to her own and her children’s exclusive use certain properties in Santa Cruz and Santa Clara counties. The complaint named respondents as defendants, both individually and as successor trustees under the 1993 trust. The complaint also named appellant as a defendant on the stated ground that she was “the sister of plaintiff and . . . named as a necessary party, because she has not consented to be joined as a plaintiff.” The complaint asserted that decedent’s agreement with Pat was “for the benefit of plaintiff and plaintiff’s sister,” that defendants “knew or should have known of plaintiff’s claim and the claim of plaintiff’s sister,” and that by the conduct alleged in the complaint they “intended to exclude plaintiff and plaintiff’s sister” from the benefits of the agreement. The complaint sought a variety of remedies, including “[a] declaration of rights and duties in connection with and relating to status of the parties, their relationship and obligations thereunder.” More specifically it sought a declaration that all of decedent’s property was held in constructive trust, that Patricia was “the beneficiary of the constructive trust,” and that “defendants, excluding SANDRA LYNN WISE (FERRARO), hold all of said assets as constructive trustee for the use and benefit of plaintiff.” It also included a request for “[r]elief as against SANDRA LYNN WISE (FERRARO) as to any relief obtained to the extent and benefits herein.”

On July 15, 2004, a copy of Patricia’s complaint was personally served on appellant at “3339 Linduir [szc] Dr[ive]” in San Jose. Appellant did not file a response, but attempted to participate in the action by directly contacting Patricia and Patricia’s attorney, Robert Mezzetti. These efforts were firmly rebuffed, and Sandra apparently took no action to join the suit until she engaged counsel in early 2005. (See pt. II.D., post.)

On November 1, 2004, a copy of a request to enter default was mailed to appellant at “3339 Linduir [sic] Drive” in San Jose. On the following day, Patricia applied for, and the superior court clerk entered, appellant’s purported default. Appellant later declared that no one ever warned her of an impending default, and she never received notice of the request to enter default. She only learned that her default had been entered when her attorney, whom she engaged in early 2005, so advised her.

B. Probate Proceedings

On December 1, 2004, Patricia filed a probate petition in Santa Clara County for letters of special administration with respect to decedent’s estate. The petition “requested] the power to pursue” Patricia’s civil action. Appellant was identified in an attached “list of parties” as decedent’s stepdaughter; her address was given, “so far as known to or reasonably ascertainable by petitioner,” as “3339 Linduir [sz'c] Drive” in San Jose. An accompanying proof of service, however, showed that a copy of the petition was mailed to appellant at 16091 Highland in San Jose. A year later appellant would declare without contradiction that she had been “unaware that there was any proceeding pending concerning the estate of Jane Ferraro until days ago when my attorney advised me of this fact.”

On December 14, 2004, Susan filed a competing petition in the Santa Clara probate matter, seeking the probate of decedent’s will of July 12, 1993, and her own (Susan’s) appointment as personal representative to administer decedent’s estate. A proof of service accompanying the notice of the petition indicated that a copy was mailed to appellant at 16091 Highland in San Jose.

On December 29, 2004, in the Santa Clara probate matter, Patricia filed a “contest . . . and opposition to probate of will and trust” (will contest). The petition named Susan and Michael as respondents and asserted five grounds of objection to probate of the July 1993 will. Four were stated in purely conclusory language: lack of sound mind, lack of due execution, undue influence, and duress. (See Prob. Code, § 8252.) The fifth, fraud, was alleged with greater specificity, as follows: “The purported documents were procured to be made, and to be signed by decedent, by reason of the fraud of [Susan and Michael] in that they and decedent eliminated contestant Patricia Ferraro as an heir to the Jane E. Ferraro Estate and in violation of the agreements oral and written, decedent Jane E. Ferraro had with contestant’s predeceased father, Pat Ferraro, as specified and set forth in Santa Clara County Superior Court action number 1-04-CV-022923,” i.e., Patricia’s civil complaint, a copy of which was attached. Appellant was mentioned twice in the will contest: first in quoting the caption of Patricia’s civil complaint, where appellant is described as “named herein as a necessary party, because she has not been joined as a plaintiff’; and second in listing her as an “heir[] of decedent,” giving her address as 3339 Lindmuir Drive, San Jose. We find no evidence in this record of any attempt to impart notice of the will contest to appellant.

On December 30, 2004, according to the later application for approval of the settlement agreement and stipulation of the settling parties, the court issued letters of special administration to Susan. The present record does not indicate what these letters authorized her to do.

C. Appellant’s Santa Cruz Action

According to appellant’s attorney, Steven Andre, he was engaged in early 2005 to represent appellant in connection with her rights arising from the alleged agreement between her father and decedent. He declared without contradiction that upon his retention, he contacted Patricia’s attorney, Mezzetti, “to inquire as to the status of the case.” Mezzetti informed him of the default. Mezzetti asked to see copies of the responsive pleadings Andre proposed to file. After Andre sent them, Mezzetti refused to stipulate to relief from the default, or to otherwise set it aside.

On August 17, 2005, Andre filed an action in Santa Cruz County on appellant’s behalf, asserting a claim to one-quarter of decedent’s estate. Three defendants were identified: Susan individually, as attorney in fact for decedent, and as successor trustee to the trust of July 12, 1993; Michael individually and as successor trustee; and Patricia “as a necessary party, because she has not joined as a plaintiff.” The complaint alleged that decedent had disposed of certain properties in violation of an agreement with Pat whereby their property and assets would be preserved and not disposed of during their lifetimes, and upon their deaths would be left in equal shares to their respective children. It asserted causes of action for breach of contract, “breach of express trust terms,” “fraud, express and implied,” unjust enrichment, constructive trust, “conversion and tracing,” “interference with advantageous relations,” declaratory relief, injunction, and accounting.

Respondents demurred to appellant’s Santa Cruz complaint on the ground that Patricia’s civil action constituted another action pending on the same cause of action. The demurrer was heard by Judge Yonts, who sustained it by order dated December 8, 2005, ordering all proceedings stayed until a “final determination” of Patricia’s action. Judge Yonts declared at the hearing and in his formal order that appellant was “an adverse party” in Patricia’s Santa Clara action.

D. Settlement Agreement; Consolidation; Motion for Approval

On November 23, 2005, counsel for Susan and Michael filed a motion in Patricia’s action and a petition in the Santa Clara probate matter seeking court approval of, and entry of “judgment” in accordance with, a settlement agreement reached by the parties other than appellant. The civil notice stated that the motion was made on the grounds “that plaintiff Patricia Ferraro and defendants Susan Camarlinghi, Dennis Camarlinghi, and Michael Kelley entered into a written stipulation settling this case, that defendant Sandra Lynn Wise Ferraro’s default was entered in this case on November 2, 2004, and that the settlement is just, fair, and reasonable.” The probate petition also alluded to appellant’s supposed default, and asserted that “settlement negotiations have culminated in a settlement that resolves the claims to the Trust and estate of the decedent, and is just, fair and reasonable, and in the best interests of those persons interested in the Trust and estate of the decedent.” The accompanying stipulation recited that appellant’s default had been taken on Patricia’s complaint. The supporting papers repeatedly asserted that the Santa Cruz court had “found” that appellant was adverse to Patricia in the civil action.

The settlement agreement was embodied in a stipulation accompanying the motion and petition. It called for distribution of $587,500 and certain personal items to Patricia, $50,000 to one Judith Montoya, and the remainder of the disputed property to Susan and Michael. The signatories agreed to release one another from all other liability and called upon Patricia and Judith to “cooperate with Susan, Dennis and Michael in the defense of any and all claims by Sandra Lynn Wise Ferraro relating or pertaining to Jane’s Trust or estate by objecting to and opposing those claims.” The stipulation stated that Patricia’s civil complaint and certain other actions “are dismissed with prejudice.” It also declared, “No part of the Trust or the estate shall be distributed and paid to Sandra Lynn Wise Ferraro.” It recited that the parties believed the disposition thus arranged to be “just, fair, and reasonable and in the best interests of all persons interested in Jane’s Trust and estate . . . .”

The agreement was conditioned upon its approval and adoption as an order of the court in both Patricia’s and Judith’s civil actions and in the probate proceeding. It was accompanied by a proposed stipulated order, which “approved and confirmed” the settlement agreement “in all respects” and adopted the parties’ stipulation. The order admitted decedent’s will of July 12, 1993, to probate, and appointed Susan executor without bond. It directed her to sell certain real property and to distribute $637,500 to Patricia, Judith, and their attorneys, of which sum $50,000 was “allocable to Judith.” Susan was directed to distribute another property to herself and Michael. The residue of the estate was to be distributed to respondents. The order expressly declared, “No part of the Trust or the estate shall be distributed or paid to [appellant] Sandra Lynn Wise Ferraro.” It also provided, “Patricia Dean Ferraro Hull and Judith Montoya shall dismiss with prejudice all of their actions, and all of their actions are hereby dismissed with prejudice, including, but not limited to” four specified matters.

In combination with the motion for approval of the settlement, respondents’ attorney, Michael Desmarais, applied to the probate court for an ex parte order consolidating Patricia’s and Judith’s civil actions with the pending probate proceeding. The application stated that consolidation was sought “so that the probate court can hear and decide the two civil motions for approval of the settlement and for judgment as well as the probate petition for approval of the settlement.” The application acknowledged the court’s power to “order a joint hearing or trial of any or all of the matters in issue in the actions . . . .” (See Code Civ. Proc., § 1048.) It did not merely pray for a joint hearing, however, but for consolidation of the actions without stated limitation or condition, and the actions have since been treated as consolidated for all purposes, at least when such treatment has appeared expedient to respondents. The application set forth no basis for a finding of good cause to dispense with proceeding by noticed motion. (See Cal. Rules of Court, rule 3.1202(c); Cal. Rules of Court, former rule 379(g); 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 54, p. 453.) Nor did it indicate that any attempt had been made to notify appellant or her counsel of the application. (See 6 Witkin, supra, Proceedings Without Trial, § 129, p. 543; Cal. Rules of Court, rules 3.1203(a), 3.1204(b); Cal. Rules of Court, former rules 379(a), 379(b).)

E. Appellant’s Motion for Joinder or Intervention

On December 14, 2005, appellant filed a motion to be joined as a plaintiff, or for leave to intervene, in Patricia’s will contest, together with objections to the proposed “probate of will and trust.” In an attached proposed complaint in intervention, she alleged that Pat and decedent had agreed that the survivor of them would leave their estate in equal shares to their four children, but that after Pat’s death this agreement was violated by various transfers of property to the exclusion of Patricia and appellant. Causes of action were again stated for breach of contract, breach of express trust, fraud, undue influence, unjust enrichment, constructive trust, conversion, interference with advantageous relations, declaratory and injunctive relief, and an accounting. It was also alleged that Patricia had “resolve[dj” her claim to a share of the estate by entering into a “binding settlement agreement.” Appellant prayed for a denial or revocation of probate with respect to decedent’s will, imposition of a constructive trust, damages, and other relief.

In opposition to the motion for joinder, Attorney Desmarais asserted that appellant was already a party, having “been a party to the civil action since July 8, 2004, and ... a party to the probate action since December 1, 2004 . . . .” Nor was she a necessary or indispensable party to the will contest, he asserted, because as an “interested party” under the Probate Code, she had standing to file her own will contest. “Moreover,” he cryptically asserted, “default ‘is equivalent to trial within the meaning of section 387 of the Code of Civil Procedure’ (Stern & Goodman Inv. Co. v. Danziger (1929) 206 Cal.[] 456, 460 [274 P. 748]).” He also asserted that “Due to the protracted length of this litigation, the estate’s real property stands to be lost or its value seriously impaired if there is any further delay in the settlement of these proceedings. To permit Sandra to now prevent or even delay the settlement of these proceedings would be unduly prejudicial to Susan and Michael.”

On December 28, 2005, appellant filed an answer to the consolidated actions. She admitted all the allegations of Patricia’s complaint and prayed for a declaration imposing a constructive trust in her favor. So far as we can discern, no demurrer, motion to strike, or other challenge to this pleading was ever filed.

F. Orders Denying Intervention and Approving Settlement

On December 29, 2005, the motion and petitions to approve the settlement were heard along with appellant’s motion for joinder or leave to intervene. During the hearing, the court, or more precisely a person not identified on the record, whom we surmise to be the probate examiner, repeatedly asked whether it was possible to approve the settlement while reserving appellant’s claims for later determination. Attorney Desmarais replied, “Absolutely not,” insisting that the settlement was conditioned on the extinguishment of appellant’s claims and the withholding of any part of the estate from her, and that the only way to preserve her claims was to deny the petition to approve the settlements. Momentarily ignoring Patricia’s civil complaint for equitable relief and damages, counsel argued that probate proceedings are in rem and that a settlement could therefore be approved without the consent of all potentially affected claimants. Counsel acknowledged that the court had to “make a fundamental judgment call” as to whether it was “a fair settlement for anybody who had an interest in the estate.” Counsel urged the court, somewhat obliquely, to find that it was fair as to appellant in light of the “default judgment” against her as well as “the lack of time and her factual inability to justify any claims.” Counsel also professed to know of no colorable basis on which appellant could assert a claim.

By formal order entered on February 2, 2006, the court denied appellant’s motion for joinder or intervention. On the same day, it executed an order approving the proposed settlement. The order varied in numerous respects from the stipulated order attached to the settlement and included in the notice of motion. Perhaps most significantly, it declared that the distributions called for under the settlement would not be made until four months after Susan’s filing of a petition for distribution. It included the stipulated provision, “No part of the Trust or the estate shall be distributed or paid to Sandra Lynn Wise Ferraro.” It also stated, “Patricia Dean Ferraro Hull and Judith Montoya shall dismiss with prejudice all of their actions, and all of their actions are hereby dismissed with prejudice, including, but not limited to,” Patricia’s civil action and three other matters.

G. Attempted Cross-action

On March 3, 2006, appellant filed a cross-complaint in the consolidated proceeding asserting claims for breach of contract, breach of express trust, fraud, undue influence, unjust enrichment, constructive trust, “conversion and tracing,” interference with advantageous relations, declaratory relief, injunctive relief, and an accounting. Counsel for respondents obtained a hearing date on shortened notice to move to strike the cross-complaint and expunge an associated lis pendens. In the motion, he asserted that the “so-called cross-complaint” was “illegally filed without leave of court” and was barred by (1) the “default judgment [hc] against plaintiff in these proceedings”; (2) the “statute of limitations,” i.e., Code of Civil Procedure sections 473, subdivision (b), 366.2, and 366.3; (3) the court’s earlier order denying joinder or intervention; and (4) the order approving the settlement and declaring that appellant should recover nothing against the estate. Counsel for appellant rejoined that she was entitled to file the cross-complaint under Code of Civil Procedure section 428.50, subdivision (b), as a matter of right because it did not name plaintiff (Patricia) as a cross-defendant and no trial date had been set. She argued that under the authority of Voyce v. Superior Court (1942) 20 Cal.2d 479 [127 P.2d 536], she was entitled to proceed on her claims, regardless of any actions by Patricia or other parties. The default was not a bar, she argued, because (1) she had filed an answer in the consolidated action without objection; (2) Susan and Michael had no standing to assert a default obtained by Patricia; and (3) the consolidation of the actions had operated, as would an amendment to the complaint, to “open” the default. She argued that the parties could not by their settlement extinguish her claims. As to the limitations issue, she argued that her claims were not barred by failure to file within the limitations period so long as Patricia’s complaint was timely.

On March 23, 2006, the court entered a formal order granting the motion to strike the cross-complaint “without leave to amend.”

On April 10, 2006, appellant moved for leave to file a cross-complaint, apparently on the theory that the court might have stricken her first cross-complaint solely on the ground that she had filed it without leave of court. Susan and Michael again opposed the attempt primarily on the ground that it had already been rejected in, or was otherwise precluded by, previous orders. The court denied the motion. On May 18, 2006, appellant took an appeal to this court (Ferraro v. Ferraro, supra, H030206) from the orders striking her first cross-complaint and denying leave to file a second.

H. Appellant’s Probate Claim; Separate Suit; Order Striking Complaint

On February 7, 2006, appellant filed a creditor’s claim in the probate matter seeking “1/4 of [decedent’s] estate.” An attached statement described the agreement between Pat and decedent whereby the survivor of them would leave his or her estate in equal shares to their four children. Causes of action were set forth on theories of breach of contract, breach of express trust, fraud, undue influence, unjust enrichment, constructive trust, conversion, interference with advantageous relations, declaratory and injunctive relief, and an accounting. On March 24, 2006, Susan rejected this claim. On May 24, 2006, appellant brought a new civil action, No. 106CV064293, on the rejected claim. Again she named respondents, but not Patricia, as defendants. They moved to strike the complaint on the familiar grounds that it was “illegally filed without leave of court,” and was barred by the “default judgment,” the statute of limitations, and the stipulated order. In a supplemental declaration, counsel for respondents alluded not only to the various orders already discussed here but also to an order in which yet another judge had assertedly rejected appellant’s arguments, this time in denying a motion by her to compel discovery. On September 29, 2006, the court granted the motion to strike “without leave to amend.” The present appeal is from this order.

Discussion

I. Standard of Review

This appeal focuses on the trial court’s order striking appellant’s complaint on her denied probate claim. That order, like any order under appellate scrutiny, is entitled to a presumption of correctness. (9 Witkin, Cal. Procedure, supra, Appeal, § 349, p. 394.) This means that appellant bears the burden of affirmatively demonstrating error in the order. (Id., § 409, p. 461.)

The standard of review, however, is complicated by respondents’ chosen means of challenging appellant’s complaint. They filed a motion to strike, which ordinarily invokes the trial court’s discretion and a correspondingly deferential standard of review. (See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612, 614 [107 Cal.Rptr.2d 489].) A motion to strike, however, was not the proper vehicle for the kind of challenge they mounted. The governing statute authorizes such a motion in two situations. The first is where a party challenges “irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) This does not describe respondents’ attack on appellant’s complaint. They did not attack “matter inserted” in that pleading, but the pleading as a whole. The cited subdivision does not authorize attacks on entire causes of action, let alone entire pleadings. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [45 Cal.Rptr.3d 222].) Its purpose is to authorize the excision of superfluous or abusive allegations. “[M]atter that is essential to a cause of action should not be struck and it is error to do so.” (Ibid.)

Nor did respondents’ motion properly fall within subdivision (b) of Code of Civil Procedure section 436 (section 436(b)), which authorizes a challenge to “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” While this language might be broadly construed to reach any deficiency in a pleading, including substantive ones, that is not its purpose or effect. Rather it authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed. This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court. (E.g., Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th 603, 613 [“plaintiffs’ failure to file an amended complaint within the time allowed by the court subjected any subsequently filed pleading to a motion to strike, either by defendants or on the court’s own motion”].)

Respondents’ notice of motion contained the passing assertion that appellant’s complaint was “illegally filed without leave of court,” but no attempt was ever made to substantiate this assertion by identifying any rule or order that was violated by the filing of the complaint. Indeed the assertion of illegal filing appeared only in the notice of motion; no argument supporting it was offered. It is almost certainly a product of cutting and pasting from respondents’ earlier challenges to appellant’s cross-complaints. The only grounds supported by anything resembling argument were that the complaint was barred by (1) a supposed “default judgment” against appellant on Patricia’s complaint, (2) the statute of limitations, and (3) the stipulated order that “No part of the Trust or the estate shall be paid to [appellant] Sandra Lynn Wise Ferraro.”

The gist of these objections is that the complaint failed to state facts sufficient to constitute a cause of action. This is ground not for a motion to strike, but for a general demurrer. (See Code Civ. Proc., § 430.10, subd. (e).) We will therefore view the order as one sustaining such a demurrer without leave to amend. As such it presents only questions of law, i.e., whether appellant’s complaint is barred on its face, or on the face of judicially noticeable matter, by prior orders or the statute of limitations. The trial court’s rulings on such questions of law are subject to independent appellate review. (Morgan Creek Residential v. Kemp (2007) 153 Cal.App.4th 675, 683 [63 Cal.Rptr.3d 232]; see JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058, fn. 11 [48 Cal.Rptr.3d 563] [“pure issues of law are always subject to independent appellate court review”].)

II. Preclusion by Prior Orders

A. Introduction; Governing Principles

Respondents contend that appellant is barred from proceeding with her claims by virtue of Judge Levinger’s orders of February 2, 2006, which (1) denied appellant’s motion to intervene or be joined in Patricia’s civil action; and (2) approved the settling parties’ settlement, including their stipulated decree that “[n]o part of the Trust or the estate shall be distributed or paid to [appellant] Sandra Lynn Wise Ferraro.” Respondents have also alluded, here and below, to the binding effect of a mysterious “default judgment” against appellant. Elsewhere they suggest that the clerk’s entry of appellant’s default, in and of itself, possessed some preclusive effect.

The burden of establishing preclusion by prior adjudication (res judicata) rests squarely on the party asserting it. (Vella v. Hudgins (1977) 20 Cal.3d 251, 257 [142 Cal.Rptr. 414, 572 P.2d 28]; Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1100 [6 Cal.Rptr.3d 881]; Landeros v. Pankey (1995) 39 Cal.App.4th 1167, 1171 [46 Cal.Rptr.2d 165].) Nothing in the present record permits a conclusion that respondents carried this burden. Their counsel has never done much more than utter the incantation “res judicata” and then rain vitriol upon his opponent’s attempts to rebut this phantom argument. No specifically apposite authority was cited below, or is cited here, in support of the claimed preclusion. Counsel makes a passing allusion to Code of Civil Procedure section 1908, part of which describes the conclusive effect to a “judgment or final order.” (Code Civ. Proc., § 1908, subd. (a).) But he does not discuss the actual terms of that statute, which has been characterized as “a codification of the res judicata doctrine.” (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1205 [24 Cal.Rptr.3d 543].) Nor does he acknowledge the companion statute describing the effect of “[o]ther judicial orders.” (Code Civ. Proc., § 1909.) He has simply made no attempt, below or here, to establish that the elements of res judicata, as developed by case law or set forth in the statutes, are actually present.

Were it not for the presumption of correctness we would be strongly inclined to reverse the order under review solely on the basis that respondents have never made, or attempted to make, a prima facie showing that any of the cited orders possesses the characteristics necessary to give it preclusive effect. Because of that presumption, however, we must attempt on our own motion, with such help as appellant may give, to sweep away the fog of respondents’ presentation and attempt to ascertain whether any of the orders to which they allude actually possess the characteristics of a conclusive judgment or order.

The preclusive effects of a prior judgment or similar adjudication— traditionally known as res judicata—are of two distinct kinds: claim preclusion and issue preclusion. Claim preclusion “prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 [123 Cal.Rptr.2d 432, 51 P.3d 297] (Mycogen Corp.), italics added; see Rest.2d Judgments, §§ 17(1) & (2), 18(1), 19.) The doctrine bars the plaintiff from bringing a second suit on a cause of action that has already been litigated to judgment. It rests on the principle that a plaintiff is entitled to only one fair opportunity to litigate a given cause of action. He or she cannot “split” it by reserving a portion for later adjudication; nor can he or she expect to be given a second opportunity to cure legal or factual deficiencies that led to his or her defeat in a prior suit. (See Mycogen Corp., supra, 28 Cal.4th at p. 897.)

The doctrine is not, however, a mechanism for the blind forfeiture of meritorious causes of action. Its purpose is to limit the burden a plaintiff may impose upon the judicial system and upon prospective defendants on account of a single injury. For this reason, it is not triggered by any and every judgment or other judicial act terminating a lawsuit. Rather there are distinct conditions for its application: there must have been a prior adjudication of the same cause of action (People v. Barragan (2004) 32 Cal.4th 236, 253 [9 Cal.Rptr.3d 76, 83 P.3d 480]); the prior adjudication must have resulted in a valid judgment on the merits (People v. Barragan, supra, 32 Cal.4th at p. 253; Rest.2d Judgments, § 17); that judgment must be final (People v. Barragan, supra, 32 Cal.4th at p. 253); and the party against whom the bar is asserted must have been a party, or in “privity” with a party, to the first proceeding (id. at p. 253, italics added).

Whereas claim preclusion bars only the relitigation of a particular cause of action, the second aspect of res judicata—issue preclusion—bars the relitigation of specific issues that were actually litigated in an earlier proceeding and decided adversely to the party against whom the doctrine is asserted. (Rest.2d Judgments, § 27, coms, a, b, pp. 250-252; see Mycogen Corp., supra, 28 Cal.4th at p. 896, quoting Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 [272 Cal.Rptr. 767, 795 P.2d 1223] (Lucido) [“issue preclusion[] ‘precludes relitigation of issues argued and decided in prior proceedings’ ”]; Le Parc Community Assn. v. Workers’ Comp. Appeals Bd. (2003) 110 Cal.App.4th 1161, 1171 [2 Cal.Rptr.3d 408].) For this doctrine to be successfully invoked, the issue as to which it is asserted must be “identical” to one presented in the first matter (People v. Carter (2005) 36 Cal.4th 1215, 1240 [32 Cal.Rptr.3d 838, 117 P.3d 544] (Carter)); the issue must have been “actually litigated in the former proceeding” (Lucido, supra, 51 Cal.3d at p. 341); the issue must have been “necessarily decided” in that proceeding (ibid.)-, the former proceeding must have resulted in a “ ‘ “final judgment” ’ ” (Carter, supra, 36 Cal.4th at p. 1240); the judgment must have been “ ‘ “on the merits” ’ ” (ibid.; see Lucido, supra, 51 Cal.3d at p. 341); and the party against whom the doctrine is asserted must have been a party, or in privity with a party, to the prior proceeding (Carter, supra, 36 Cal.4th at p. 1240). Further, even if all these conditions are present, the doctrine will not be applied “if injustice would result or if the public interest requires that relitigation not be foreclosed.” (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902 [160 Cal.Rptr. 124, 603 P.2d 41].)

With these basic principles in mind, we consider whether any of the various orders identified by respondents operated to bar appellant from presenting her own claim against the estate and, when that claim was denied, filing a civil action to secure her claimed one-quarter of decedent’s assets.

B. Pleading Orders

Respondents assert that appellant’s claims are barred by Judge Levinger’s order denying her motion to intervene or join in the consolidated actions. Respondents have never troubled to demonstrate that this was a final judgment on the merits. They have repeatedly pointed out that appellant failed to appeal from that order, but they have never attempted to demonstrate that she could have done so. In fact the implicit assertion of appealability is flatly incompatible with their own argument to Judge Levinger that the motion lacked merit because appellant was “already a party to the proceeding,” i.e., that intervention would be superfluous because she was already before the court in the other consolidated proceedings. An order denying intervention is appealable only if it “finally and adversely determines the right of the moving party to proceed in the action . . . .” (9 Witkin, Cal. Procedure, supra, Appeal, § 70, p. 126.) If appellant was already otherwise a party, as respondents insisted, then the denial of her motion for joinder did not finally determine her right to participate in the action, let alone her substantive rights. It therefore could not have been appealed by her, and could have no preclusive effect on her later attempts to pursue her claims.

Respondents have also suggested at various times that appellant’s complaint was barred by the trial court’s orders (1) striking her cross-complaint in the consolidated actions, and (2) denying her motion for leave to file such a cross-complaint. That contention is plagued by numerous infirmities, of which the most briefly stated is that those orders are presently on appeal and therefore have never acquired the finality necessary to give them preclusive effect. “A judgment or order may be final in nature, but it does not become res judicata until it is final in the other sense of being free from direct attack. Hence, while an appeal is pending or, though no appeal has yet been taken, the time for appeal has not expired, the judgment is not conclusive.” (7 Witkin, Cal. Procedure, supra, Judgment, § 307, p. 857.) Indeed, we have today dismissed that appeal (Ferraro v. Ferraro, supra, H030206) on the ground that those orders were not appealable for reasons there stated.

C. “Default Judgment”

The short answer to respondents’ allusions to a preclusive “default judgment” is that no such judgment appears to have been entered. Although the clerk purported to enter a default (see pt. II.D., post), the only arguable judgment in these matters is Judge Levinger’s stipulated order. Any direct attempt by respondents to characterize this as a default judgment would tend to reveal that it was not only not a default judgment as contemplated by the code, but was a creature wholly outside our laws and procedures, and thus wholly ineffectual to bar appellant’s claims (see pt. II.E., post).

Nothing in this record can be viewed as a default judgment. Code of Civil Procedure section 585 (section 585) prescribes the means by which such judgments are obtained. As relevant here it sets forth two alternative procedures, depending on the nature of plaintiff’s action. The first deals with actions “arising upon contract or judgment for the recovery of money or damages only . . . .” (§ 585, subd. (a).) In such a case, after the defendant fails to plead, the plaintiff may apply for a default, whereupon the clerk “shall enter the default of the defendant . . . and immediately thereafter enter judgment for the principal amount demanded in the complaint . . . .” (Ibid.) For at least three reasons, this provision was inapplicable here: Patricia’s complaint did not arise solely in contract, it did not assert any cause of action against appellant, and neither it nor any later pleading demanded a “principal amount,” or any amount, from her. Not surprisingly, the clerk did not enter, and was apparently not asked to enter, a default judgment.

The second prescribed procedure, which applies in all actions other than those covered by the foregoing provision, empowers the clerk to enter the nonpleading defendant’s default, but requires that any judgment be entered by the court after what is commonly called a prove-up of the allegations of the complaint. That is, the plaintiff must first secure the clerk’s entry of default and then “apply to the court for the relief demanded in the complaint,” whereupon “[t]he court shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff’s favor for that relief, not exceeding the amount stated in the complaint ... as appears by the evidence to be just.” (§ 585, subd. (b).) Had respondents sought such a judgment here, it would have become painfully apparent that Patricia’s complaint “demanded” no “relief’ from appellant and therefore could not sustain a default judgment against her. This would have brought down the procedural stack of cards on which the settling parties’ demand for an order extinguishing appellant’s claims largely depended, for as appears in the following part, the peculiar alignment of the parties meant not only that a default judgment was unwarranted, but that even the clerk’s entry of default was wholly improper and ineffectual.

D. Default

A clerk’s entry of default possesses none of the characteristics of a preclusive judgment. It is not final; it is not on the merits; it does not decide anything; it results from no litigation of any issue. Indeed it does not adjudicate anything; it is not a judicial act. It reflects the clerk’s performance of a series of quintessentially clerical tasks: ascertaining that the request for default appears in order, confirming that the defendant’s time to plead has elapsed, noting the absence of a responsive pleading by him, and signifying these facts by entering the default. As appellant correctly asserts and respondents sometimes appear to concede (see fn. 14, ante), such an instrument can have no effect under the rules of preclusion by judgment.

Here the clerk’s default lacked preclusive effect for the further compelling reason that it was void. Appellant was not vulnerable to a default in Patricia’s action because she was only nominally a defendant; she was in substance a plaintiff against whom no ground for an adverse judgment was pleaded and from whom no relief was sought. According to the allegations of the complaint, she stood in exactly the same position as Patricia, the named plaintiff. The core of Patricia’s cause of action was the alleged agreement between decedent and Pat whereby, “upon the death of the last survivor, all of their estate properties and assets would be left equally to the four children,” i.e., Susan, Michael, Patricia, and appellant. (Italics added.) The complaint suggested no basis on which this agreement might operate to Patricia’s benefit but not appellant’s. On the contrary, it expressly alleged that the agreement was made “for the benefit of plaintiff and plaintiff’s sister,” that decedent “breached said contract and eliminated plaintiff and plaintiff’s sister as heirs to said properties and assets,” that decedent had assured Patricia that “plaintiff and plaintiff’s sister would share equally with the children of Jane E. Ferraro in all of the properties and assets upon her death,” that decedent “violate[d] said trust and breach[ed] the agreement [by] excluding plaintiff and plaintiffs sister” from her estate, that respondents “knew or should have known of plaintiff’s claim and the claim of plaintiff’s sister,” that Susan “intended to exclude plaintiff and plaintiff’s sister” by various acts and transactions, and that certain transfers were made “to the exclusion of plaintiff and plaintiff’s sister.” So far as its allegations indicated, Sandra possessed a claim against defendants substantially identical to Patricia’s.

The whole predicate for taking appellant’s supposed default was that appellant was joined in Patricia’s complaint as a defendant rather than a plaintiff. This was accomplished, however, only by invoking the procedure authorized by Code of Civil Procedure section 382 (section 382), which as relevant here provides, “If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint . . . .” (Italics added.) The caption of Patricia’s complaint listed appellant as a defendant, stating that she was “named herein as a necessary party, because she has not joined as a plaintiff.” (Italics added.) An introductory paragraph came slightly closer to the statutory language, describing appellant as “named as a necessary party, because she has not consented to be joined as a plaintiff.” (Italics added.) Nothing in the complaint complied with the statutory conditions that the joined party’s consent to join as plaintiff “cannot be obtained” and that “the reason thereof be[] stated in the complaint. . . .” (§ 382, italics addded.)

This was not a mere pleading error; it is quite apparent from the declarations of appellant, Patricia, and Patricia’s attorney that appellant would have been more than willing to join the suit as a plaintiff, and indeed actively sought to do so, but was actively discouraged—to put it mildly—by Patricia, as assisted at least passively by the latter’s attorney. In support of her motion for joinder or intervention, appellant declared that during the months after she was served she was homeless, destitute, unable to work or attend to her affairs, and under distress from several identified causes. She communicated her situation to her sister Patricia as well as to Attorney Mezzetti. She declared that she asked the latter what she should do about tire papers served on her but he refused to talk to or advise her. She declared that when she asked Patricia if she could join the suit, Patricia said that she had “called Mr. Mezzetti and that I could not.” She also declared that after she learned of an effort to take her deposition she contacted respondents’ attorney, Michael Desmarais, describing her situation, and that he told her to “hang in there.”

In a responding declaration, Mezzetti acknowledged that promptly after appellant was served, his office received a series of messages in which she expressed a desire to pursue her claims against the estate. Memoranda of these calls were made exhibits to the declaration. In the earliest of them, an attorney representing appellant in another matter called Mezzetti’s office on July 21, 2004—six days after appellant was served with Patricia’s complaint—and left his number, saying that he was calling at appellant’s request, but did not know why, describing appellant as “kind of scattered.” Two days later appellant herself called and left a message for Mezzetti that attorney Thomas Salciccia was trying to reach him, and that appellant “need[ed] to get on plan [szc] with [her] sister.” About a half hour later she called again to say, as apparently taken down by a receptionist, “Faxed papers to Tom Salccia [ízc] get papers ready for her to sign to be on with sister.” Four days later she called again, saying, “Tom has been trying to get ahold of you wants appt—getting dangerous for her.” The following day, July 28, she left a recorded voice mail laced with obscenities and threats of suit, the gist of which was that she objected to Mezzetti’s failure to communicate with her.

Mezzetti declared that in response to appellant’s entreaties he “advised her I would not represent her in this action and that she should seek other counsel.” He gave no indication that he attempted or offered to cooperate with such other counsel, and indeed did not contradict the plain implication of her final phone message, which was that he had refused or neglected to do so. His client, Patricia, declared that when appellant came to see her, they “talked about the fact that [appellant] was not a party to this particular lawsuit as a party plaintiff as I did not want to be involved with her in any matters, not the least of which was a lawsuit.” (Italics added.) Patricia further declared, “I told her she was not a party to my lawsuit and I did not want her to be involved in my life in any way.” (Italics added.)

By so conducting themselves, Patricia and her attorneys turned section 382 on its head. The statute’s purpose is to protect the active parties to a lawsuit by effecting the involuntary joinder of a recalcitrant plaintiff. This ensures that the party so joined will be bound by any resulting adjudication. But here the statute was used to confer an involuntary “defendant” status on one who was not only willing but obviously eager to join as a plaintiff. The status thus improperly imposed on her was relied upon to finagle a default from the clerk. The default in turn became the central basis for later arguments that she had no further rights in the matter, substantive or procedural.

No known authority can sustain such a strategy. On the contrary, the most pertinent authorities establish that the default would have been void even if appellant had been properly joined under section 382. For at least 95 years it has been held that one so joined is a defendant in name only; he or she is “ ‘in reality’ ’’ a plaintiff. (Romero v. Pacific Gas & Electric Co. (2007) 156 Cal.App.4th 211, 215 [67 Cal.Rptr.3d 236] (Romero); Stiles v. Estate of Ryan (1985) 173 Cal.App.3d 1057, 1063 [219 Cal.Rptr. 647]; see Watkins v. Nutting (1941) 17 Cal.2d 490, 498 [110 P.2d 384]; Gilmore v. Los Angeles Ry. Corp. (1930) 211 Cal. 192, 200 [295 P. 41]; Donohoe v. Wooster (1912) 163 Cal. 114, 116-117 [124 P. 730]; Bosworth v. Superior Court (1956) 143 Cal.App.2d 775, 778 [300 P.2d 155] [administrator named under section 382 was “in legal effect, a plaintiff’].) For at least 60 years it has been settled that a default cannot properly be entered against such a “defendant.” In Watkins v. Nutting, supra, 17 Cal.2d 490, the trial court granted a wrongful death plaintiff’s request to order the default of two heirs whom the plaintiff had joined as defendants on the ground that, as stated by counsel, “ ‘they did not choose to join as plaintiffs in the action.’ ” (Id. at p. 496.) Apparently without moving to set aside the default, the heirs appeared and asserted a right to relief against the widow, the real defendants, or both. The widow argued, among other things, that the heirs’ claims were barred because “a defendant, against whom a default has been entered, has no standing in court until the default has been set aside, and ... a default by an heir at law, joined as a defendant under section 382 of the Code of Civil Procedure in a wrongful death action, operates as a waiver by such heir of any claim for damages.” (Id. at pp. 497-498.) The court rejected these contentions as follows: “The fact that the children . . . were joined as defendants does not alter the essential relations between the parties; although named as defendants they are, in reality, plaintiffs in the case. [Citation.] No judgment could properly be taken against them because no relief was demanded from them, and the order of the court directing the clerk to enter their default was ineffective for any purpose.” (Id. at pp. 498-499, italics added; see Estate of Kuebler v. Superior Court (1978) 81 Cal.App.3d 500, 504 [146 Cal.Rptr. 481]; Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 697 [48 Cal.Rptr.2d 461].)

Perhaps sensitive to the pecuharity of a default entered against a de facto coplaintiff, the settling parties repeatedly told the court below that appellant was “an adverse party” in Patricia’s civil action. This claim, which is not reiterated on appeal, finds absolutely no support in the substantive allegations of the complaint. As we have already noted, all allegations of operative facts placed appellant in a position substantially identical to Patricia’s. There was no suggestion that she had somehow forfeited the rights Patricia alleged were vested in both of them by decedent’s promises to Pat. The claim of adversity necessarily depended on the inclusion, in the prayer of Patricia’s complaint, of a request for “[rjelief as against SANDRA LYNN WISE (FERRARO) as to any relief obtained to the extent and benefits herein . . . .” This unintelligible sentence fragment may convey a desire on the part of the pleader to keep open some hope of distinguishing between the two sisters, but it is so garbled that one might reasonably suspect it to be the product of some unguessable scrivener’s error. Neither counsel for Patricia (who drafted it) nor counsel for Susan and Michael (who relied upon it) ever tried to explain it. Whatever it was intended to mean, it was wholly ineffectual to sustain a judgment against appellant, by default or otherwise.

In a contested action a defective or even missing prayer is not fatal to recovery because, so long as the defendant answers the complaint, “the court may grant. . . any relief consistent with the case made by the complaint and embraced within the issue.” (Code Civ. Proc., § 580, subd. (a).) The meaning of this language is that the court may grant such relief—but only such relief—as is “ ‘authorized by the facts alleged and proved or admitted ....’” (Estrin v. Superior Court (1939) 14 Cal.2d 670, 676 [96 P.2d 340]; see Potrero Homes v. Western Orbis Co. (1972) 28 Cal.App.3d 450, 456 [104 Cal.Rptr. 633].) Here there was no “case made by” Patricia’s complaint—no “facts alleged and proved or admitted”—that would sustain any remedy against appellant. The nebulous allusion to relief “as against” her had no legal effect.

The point is even stronger if viewed within the framework of the relief available by default. Such relief is limited by statute to the specific demands set forth in the prayer. “ ‘[I]t is a well-established rule that in a default case the relief granted cannot exceed the prayer. [Citations.] And where relief is given beyond the scope of that asked for, it is a nullity, and may be attacked collaterally, or its effect avoided under the doctrine that it is not res judicata.’ ” (Burtnett v. King (1949) 33 Cal.2d 805, 809 [205 P.2d 657], italics omitted; see Greenup v. Rodman (1986) 42 Cal.3d 822, 826 [231 Cal.Rptr. 220, 726 P.2d 1295] [“[A] default judgment greater than the amount specifically demanded is void as beyond the court’s jurisdiction.”]; Code Civ. Proc., § 412.20, subd. (a)(4) [prescribed form of summons warns defendant that upon failure to file timely response, the plaintiff may secure his or her default and “apply to the court for the relief demanded in the complainf’ (italics added)].)

The relief allowable by default is limited not only by the prayer but by the substantive allegations of the complaint. Under the “well pleaded” complaint rule, it is error to enter a default judgment on a complaint that fails to state a cause of action against the defaulting defendant. (6 Witkin, Cal. Procedure, supra, Proceedings Without Trial, § 160, p. 574.) If the complaint, though defective, “ ‘apprises the defendant of the nature of the plaintiff’s demand,’ ” the entry of default is merely erroneous, not void. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1154 [75 Cal.Rptr.2d 651]; see id. at p. 1156.) But Patricia’s complaint fell far short of apprising appellant of the nature of any relief that Patricia might seek against her, let alone its basis. The complaint therefore could not have supported a default judgment even if Patricia had tried to obtain one, which she did not.

It thus appears that not only would any “default judgment” against appellant have been void, the default itself was void. For these and the other reasons noted above, no preclusive effect could flow from it.

E. Order Extinguishing Claims

1. Introduction

This brings us to what should have been the only question under this heading: whether appellant’s claims are barred by the court’s explicit order decreeing that “[n]o part of the Tmst or the estate shall be distributed and paid to [appellant] Sandra Lynn Wise Ferraro.” The threshold difficulty in answering this question is the sui generis nature of the order. At the time of its entry there were at least 10 matters pending in connection with decedent’s erstwhile property: (1) Susan’s original probate petition in Santa Cruz County to determine the existence of a trust; (2) Patricia’s civil action in Santa Clara County, essentially to impose a constructive trust on respondents individually and as trustees; (3) Patricia’s cross-petition, of unknown tenor, in the Santa Cruz trust matter; (4) Patricia’s probate petition in Santa Clara county for letters of special administration; (5) Susan and Michael’s petitions in that same matter to probate decedent’s will; (6) their simultaneous petitions to administer decedent’s estate and for letters testamentary; (7) Patricia’s contest of the will in that matter; (8) appellant’s suit in Santa Cruz County, which by this time had been abated, but not dismissed; (9) Judith Montoya’s separate and distinct civil action; and (10) appellant’s motion to intervene or be joined in the consolidated actions. In an ex parte order previously described, the court had consolidated all of the Santa Clara matters, i.e., Patricia’s and Judith’s civil actions and “Santa Clara County Superior Court action number 1-04-PR-156503,” the case number under which four of the above probate petitions had been filed. Counsel thus succeeded in creating a procedural monster—a sort of jurisprudential chimera—that might be characterized in any of a dozen ways. No attempt was ever made to show how the order purporting to extinguish appellant’s claims might be viewed as a judgment or appealable order, with preclusive effect as to appellant, in any of the consolidated proceedings. The apparent strategy was to cast the burden of classifying the order, and ascertaining its effect, on appellant. This strategy obviously succeeded in obscuring the issues, but it must ultimately fail, for under no proper conception of the order did it possess all the characteristics necessary to give it preclusive effect.

2. Effect of Stipulated Order

The directive that appellant should take nothing against the estate rested entirely on the stipulation of the settling parties. Such an order may have preclusive effect as between the parties to the underlying stipulation, but not because it satisfies the criteria for claim preclusion or issue preclusion. Rather it is binding on the parties to the extent they have consented to be bound by it. Thus in Avery v. Avery (1970) 10 Cal.App.3d 525, 529 [89 Cal.Rptr. 195], the court wrote that “[t]he judgment of a court of competent jurisdiction entered upon a stipulation of the parties has the same effect as if the action had been tried on the merits.” But the court went on to describe the defendant as having “consented to an adjudication adverse to him” (ibid.), by which he “conceded that ‘$12,500.00 as alimony in gross is due, owing and unpaid’ and consented to be bound to pay the same” (id. at p. 530, italics added).

In California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658 [268 Cal.Rptr. 284, 788 P.2d 1156] (Cooper), the court relied heavily on concepts of consent in explaining why a defendant’s entry into a stipulated judgment in favor of a personal injury plaintiff constituted a “conclusive judicial determination of the [defendant’s] liability” for purposes of a suit