Today the Ninth District says no.
The case is Radcliff v. Tucker, a landlord-tenant dispute. For some reason the municipal court sua sponte took judicial notice of the fact that the parties had previously litigated what the court believed to be the same dispute in a prior case. It also dismissed for the plaintiff's failure to comply with a local rule that requires a summary of each filing.
The Ninth District reversed, of course, writing that (a) res judicata is never the proper basis of a motion to dismiss, (b) a court can't take judicial notice of other proceedings, (c) except in the most unusual circumstances, a court must give notice to the plaintiff before dismissing the case, and (d) it was an abuse of discretion to dismiss for violation of the local rule, where the rule does not specify a penalty for noncompliance.
Appellate practice regularly produces questions regarding the "law of the case," which is similar to but usually considered to be distinct from res judicata. But my commercial litigation practice has, for some reasons, produced a surprisingly large number of genuine res judicata issues as well. While a motion to dismiss can't serve as the vehicle to resolve issues barred by res judicata, a well-crafted motion for judgment on the pleadings may.
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