Epstein v. BDO Seidman
Barry Epstein, Shawn Denton, Adam Levine and Jason Shapiro (the Owners) appeal from judgment of dismissal entered after the trial court sustained a demurrer without leave to amend their complaint alleging a cause of action for fraud against respondent BDO Seidman, LLP (fraud complaint). The trial court dismissed the complaint based on the application of the doctrine of res judicata. The court concluded that Owners fraud complaint was seeking relief for the same primary right and injury as Owners asserted in a prior complaint asserting a claim for negligent misrepresentation which was dismissed and affirmed on appeal in July of 2007. On appeal before this court, Owners assert res judicata does not preclude its current fraud claim discovered after the first action was filed where it was prevented from asserting the fraud facts in the first action. In the alternative, Owners argue that application of res judicata should be denied when injustice would result or that BDO should be estopped (or deemed to have waived) the res judicata argument. As Court shall explain, these arguments are unavailing, and Court therefore affirm.
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