concurring in part and dissenting in part; Choy, Wallace and J. Blaine Anderson, Circuit Judges, joining.
I concur with the majority that the doctrine of res judicata bars relitigation in this action of any claim that the Los Angeles School Board committed acts of de jure segregation prior to the conclusion of the state court trial in 1969.
However, I dissent in part because I believe that the preclusive effect of res judicata is greater. It also extends to alleged segregative acts that occurred after the original trial but prior to the entry of the state court’s final order in 1981.
My position rests on the proposition that the amendment of the California Constitution by Proposition I explicitly put all alleged segregative acts at issue in the state court proceedings. The state court, as a result of the Crawford plaintiffs’ lawsuit, had responsibility for supervising the implementation of a desegregation plan for the Los Angeles schools. The Crawford plaintiffs, for their part, were required to bring before that court any allegations, such as post-1969 segregative acts, that would have affected the scope of that plan. Having kept their silence in the state court, representatives of the same class are not free to bring in federal court an action, based on allegations that could have been, but were not, raised in the state court, to set aside the plan approved by the state court and to order development of a new one.
In support of this conclusion, it should be recalled that in 1976, on appeal of an action brought by the plaintiff class, the Supreme Court of California charged the Superior Court of Los Angeles County with the responsibility to “exercise broad equitable powers in supervising the preparation and implementation of a reasonably feasible desegregation plan” for the Los Angeles school system. Crawford v. Board of Education, 17 Cal.3d 280, 308, 130 Cal.Rptr. 724, 743, 551 P.2d 28, 47 (1976). The Superior Court, with the active participation of the Crawford plaintiffs, was still engaged in executing that responsibility when the California Constitution was amended by Proposition I in 1979. The amendment, in combination with decisions of the United States Supreme Court, had the effect of conditioning certain of the equitable powers of the court — namely, the power to order reassignment and/or transportation of students — on a finding of de jure segregation.
The majority acknowledges that the plaintiffs did, in the Superior Court proceedings in 1979 and 1981, have a full and fair opportunity, as well as ample incentive, to allege and prove acts of de jure segregation, done at any time in the past, that would have justified a busing order. But the majority, nonetheless, concludes that the Crawford plaintiffs were under a duty to take advantage of that opportunity only *747with respect to segregative acts that occurred prior to the close of the original trial in 1969. I strongly disagree. The majority’s application of the doctrine of res judicata ignores both the realities of this case and the unique nature of school desegregation actions.
In this case, as well as in school desegregation cases generally, there is only one right at issue: the right of the plaintiffs to a desegregated school system.1 In this case, the decree of the Superior Court, entered on September 10, 1981, was designed to vindicate that right. It was not designed merely to nullify, or to compensate for, particular acts of segregation that occurred prior to the 1969 trial. Nor was it designed to remedy the segregated condition of the Los Angeles school system as it existed at the close of trial in 1969. Rather, it incorporated those steps deemed necessary, in light of the conditions that existed at the time the decree was entered, to achieve desegregation of the school system. It was addressed to “present conditions.” Crawford v. Board of Education, No. 822 854, Order Re Final Approval of School Board Desegregation Plan and Discharge of Writ of Mandate at 7 (Super.Ct. L.A. County, Sept. 10, 1981) (emphasis in original).
Acts of de jure segregation by the Los Angeles School Board between 1969 and 1981, were such to exist, would not create new and distinct rights. Any decree addressed thereto would serve the same function as did the Superior Court’s order, namely, the contemporary desegregation of the Los Angeles school system. Any such acts would, however, expand the range of equitable powers that the Superi- or Court could invoke in fashioning its decree. Presumably the plaintiffs would have desired the invocation of those powers. Between 1969 and 1981 they had the opportunity and incentive to allege any de jure segregative acts of that period that would have made the additional remedies' available. It is unreasonable to permit the plaintiffs to bring their allegations of de jure segregation since 1969 in another action in another court rather than presenting them to the Superior Court.
The majority’s limitation of the res judicata effect of the state court action relies on the formal rule that “[t]he scope of the litigation is framed by the complaint at the time it is filed.” This rule is quite suitable when applied to ordinary tort or contract cases. But even the majority does not strictly apply the rule to this case. Were it so applied, the res judicata effect of the state court action would extend only to segregative acts that occurred before 1963. Quite correctly, the majority rejects such a narrow approach. Instead, the majority construes a stipulation between the parties as a supplemental pleading that extended the scope of the litigation through the time of trial. The majority’s problem is that it failed to follow through with this sound approach. The California Constitution requires that the “Application for Modification of Orders,” filed by the school board following the passage of Proposition I in 1979, be construed as a supplemental pleading that put at issue the question of whether any acts of de jure segregation occurred up until the final disposition of that motion. The California Constitution, as amended by Proposition I, provides that, upon such an application, any desegregation order, “whenever rendered, ... shall ... be modified to conform to the provisions of [Proposition I], as applied to the facts which exist at the time of such modification.” Cal. Const. art. 1, § 7(a) (emphasis added).
The board’s motion reflected the terms of Proposition I. It asked the court to determine “[wjhether this Court, applying the facts as they exist today, could properly determine that the Board had violated the Equal Protection Clause of the 14th Amendment.” Crawford v. Board of Education, No. 822 854, Application for Modification of Orders at 3-4 (Super.Ct. L.A. County, Nov. 15, 1979) (emphasis added). *748The Application asked the court to “hold a hearing to determine whether a federal court, sitting today, would find a de jure violation and impose a remedy involving pupil school assignment or pupil transportation.” Id. at 4 (emphasis added).
The board’s application and its request for a hearing was clearly an invitation for the plaintiffs to come forward with whatever evidence existed of de jure segregation in the decade since the original trial. The invitation was declined. The board’s interest in settling the issue once and for all, so that it could proceed to implement a desegregation plan that satisfied all constitutional requirements, state and federal, should not be permitted to be frustrated by the plaintiffs’ unilateral decision.
To permit, as would the majority, another action in another court alleging acts of segregation between 1969 and 1981 that could have been, but were not, alleged in the state court action, would seriously undermine the efforts of the state court, the school board, and all the participants in the state court proceedings, to find a stable and lasting solution to the problem of racial segregation in the Los Angeles school system. The school board has a right to expect that when, after eighteen years of litigation and struggle, the state court approves its desegregation plan and declares that the plan meets state and federal constitutional standards, that plan will not have to be immediately scrapped and a new one formulated as the result of a new lawsuit alleging acts that the plaintiffs could have alleged, but chose not to, in the state court proceedings. Similarly, the students, parents, and teachers of the school system have a right to some stability and continuity in the schools. As Judge Lopez stated in his final order approving the board’s desegregation plan, “A case that involves the education of children must be resolved. There must be finality in the law so that people may plan their everyday lives to conform to the requirements of the law.” Crawford, Order re Final Approval, supra at 2. School district resources at this time should be spent on education— and on integration — rather than on continuing litigation and relitigation.
The Superior Court’s final judgment in no way insulates the school board from litigation over actions that it may have taken after the entry of that judgment or that it may take in the future. But the principle of res judicata, coupled with a realistic and practical approach to the unique problems of school desegregation cases, requires that the final approval of the board’s desegregation plan bring an end to litigation over events that occurred prior to that approval.
These conclusions are consistent with California law, which, I acknowledge, governs the preclusive effect of the 1981 judgment. See Migra v. Warren City School District Board of Education, - U.S. -, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984). That law is properly reflected in Eichman v. Fotomat Corp., 147 Cal.App.3d 1170, 197 Cal.Rptr. 612 (Ct.App. 1983). In Eichman, the plaintiff complained of injuries arising from a continuing relationship that was not terminated by the filing of the lawsuit. Following a judgment entered as the result of a settlement, a second suit was brought seeking additional relief with respect to alleged wrongs occurring before the judgment. The court held that “the judgment entered in the Eichmans’ first suit bars any future recovery for acts committed by Fotomat before judgment was entered, but should Fotomat commit new wrongs, new suits may be brought.” 147 Cal.App.3d at 1177, 197 Cal.Rptr. at 615. It recognized that a continuing wrong was terminated for purposes of claim preclusion only by judgment, not by the filing of the suit. Only after judgment did a new cause representing a distinct primary right come into being. Accord Lord v. Garland, 27 Cal.2d 840, 849, 168 P.2d 5, 11 (1946). Because of both the unique character of school desegregation cases in general and the special circumstances of this case, the date of judgment, for the purpose of applying the Eichman rule, must be the date of the state court’s final order in 1981.
*749Kettelle v. Kettelle, 110 Cal.App. 310, 294 P. 453 (1930) is not to the contrary. It merely held that a tentative awarding of custody of a child to one parent in a suit for divorce did not preclude a second suit to determine the fitness of that parent to retain custody based on acts committed during the divorce trial. The court treated the custody issue raised by the second suit as a new right proeedurally unrelated to the matter of divorce. Id. at 312, 294 P. at 454. The juridical relationship between the alleged pre- and post-1969 de jure segregative acts in this case, however, is plain and was never seriously questioned until now. These acts, had they been established, would have constituted but manifestations of a continuing wrong, the correction of which would have been possible up to the date of final judgment in 1981. To deny this at this late date serves only to attempt to breathe life into a case more resembling at this time a desiccated corpse than a new born babe. The attempt is unnecessary, unwise, and misguided. I respectfully dissent.
. The majority rests its conclusion on the proposition that the doctrine of res judicata does not apply to "new rights acquired pending the action.”