Chapter 9: Prior Adjudication
A. STARE DECISIS
1. Binding or Persuasive Authority
p. 838: Even unpublished opinions from lower federal courts may be cited as
persuasive. Hall v. Goodwill Industries, 193 Cal.App.4th 718, 728 n.2, 123 Cal.Rptr.3d
274, 282 n.2 (2011).
p. 838, second ¶: See Williams v. Chino Valley Independent Fire District, 218
Cal.App.4th 73, 159 Cal.Rptr.3d 566 (2013) (California state courts not bound by
decisions of lower federal courts interpreting federal statutes).
p. 838: Water Replenishment District v. City of Cerritos, 204 Cal.App.4th 676, 684,
138 Cal.Rptr.3d 889, 895 (2012) (While persuasive, decisions of the lower federal courts
on issues of federal law are not binding on the Court of Appeal.)
p. 838: “Trial court decisions are not precedent.” B.F. v. Superior Court, 207
Cal.App.4th 621, 143 Cal.Rptr.3d 730, 734 n.2 (2012) (quoting Harrott v. County of
Kings, 25 Cal.4th 1138, 1148, 108 Cal.Rptr.2d 445, 25 P.3d 649 (2001).)
2. Overruling Precedent
p. 846, Note 3: The California Supreme Court has reiterated its adherence to these
general policies:
The doctrine of stare decisis teaches that a court usually should follow prior
judicial precedent even if the current court might have decided the issue
differently if it had been the first to consider it. This doctrine is especially forceful
when, as here, the issue is one of statutory construction, because the Legislature
can always overturn a judicial interpretation of a statute. The doctrine of stare
decisis is not absolute, and sometimes it is appropriate to overrule prior precedent,
even precedent interpreting a statute. Nevertheless, a court should be reluctant to
overrule precedent and should do so only for good reason.
Bourhis v. Lord, 56 Cal.4th 320, 327, 153 Cal.Rptr.3d 510, 515, 295 P.3d 895 (2013).
However, the state Supreme Court has also noted that “reconsideration of a poorly
reasoned opinion is appropriate” and “if a decision departed from an established general
rule without discussing the contrary authority, its weight as precedent is diminished.”
Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Association, 55
Cal.4th 1169, 1180, 151 Cal.Rptr.3d 93, 101, 291 P.3d 316 (2013). The Court also quoted
prior opinions which had observed, “Wisdom too often never comes, and so one ought
not to reject it merely because it comes late.” Id. at 1180, n. 9.
3. Retroactivity
p. 847: For a newer case applying the rule that judicial decision are generally given
Page 1 of 5
retrospective effect, see Alvarez v. Brookstone Co., 202 Cal.App.4th 1023, 135
Cal.Rptr.3d 777 (2011).
p.850, Note 2: See Bank of America, N.A. v. Roberts, ___Cal.App.4th___,
___Cal.Rptr.3d___ 2013 WL 375483 (2013) (following McClung in refusing to apply
legislation retroactively).
4. Law of the Case
p. 852: The Court of Appeal defined the doctrine as follows:
“The law of the case doctrine states that when, in deciding an appeal, an appellate
court ‘states in its opinion a principle or rule of law necessary to the decision, that
principle or rule becomes the law of the case and must be adhered to throughout
its subsequent progress, both in the lower court and upon subsequent appeal ...,
and this although in its subsequent consideration this court may be clearly of the
opinion that the former decision is erroneous in that particular.’” The law of the
case doctrine applies to matters decided in a pretrial writ proceeding in an
appellate court if (1) the matter was fully briefed, (2) there was an opportunity for
oral argument, and (3) the cause was decided by written opinion.
People v. Romero, 204 Cal.App.4th 704, 719, 139 Cal.Rptr.3d 167, 178 (2012).
p. 853: The law of the case doctrine is distinguished from the policy regarding the
retroactivity of judicial decisions in Sargon Enterprises, Inc. v. University of Southern
California, 215 Cal.App.4th 1495, 156 Cal.Rptr.3d 372 (2013) (holding that opinion
issued earlier by the California Supreme Court in the pending matter did not announce
new law, invoking retroactivity, but would be applied as the law of the case).
5. Judicial Estoppel
p. 853: The Court of Appeal quoted the test for application of judicial estoppel in
Minish v. Hanuman Fellowship, 214 Cal.App.4th 437, 449, 154 Cal.Rptr.3d 87 96-97
(2013). However, the court also noted that as an equitable doctrine, judicial estoppel
should be “applied with caution and limited to egregious circumstances.” Id. (citation
omitted).
Another Court of Appeal has explained the doctrine as follows:
Judicial estoppel is an equitable doctrine designed to maintain the integrity of the
courts and to protect the parties from unfair strategies. The doctrine prohibits a party
from asserting a position in a legal proceeding that is contrary to a position he or she
successfully asserted in the same or some earlier proceeding.
“This doctrine rests on the principle that litigation is not a war game unmoored
from conceptions of ethics, truth, and justice. It is quite the reverse. Our adversarial
system limits the affirmative duties owed by an advocate to his adversary, but that
does not mean it frees him to deceive courts, argue out of both sides of his mouth,
fabricate facts and rules of law, or seek affirmatively to obscure the relevant issues
Page 2 of 5
and considerations behind a smokescreen of self-contradictions and opportunistic flipflops.”
The elements of judicial estoppel are “(1) the same party has taken two positions;
(2) the positions were taken in judicial or quasi-judicial administrative proceedings;
(3) the party was successful in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally inconsistent; and (5)
the first position was not taken as a result of ignorance, fraud, or mistake.” Even if the
necessary elements of judicial estoppel are satisfied, the trial court still has discretion
to not apply the doctrine.
Owens v. County of Los Angeles, 220 Cal.App.4th 107, 121, 162 Cal.Rptr.3d 769, 780
(2013).
p. 854: In connection with Federated Department Stores, “A court's power to decide
a case is independent of whether its decision is correct, which is why even an erroneous
judgment is entitled to res judicata effect. Put differently, a jurisdictionally proper but
substantively incorrect judicial decision is not ultra vires.” City of Arlington v. FCC, 569
U.S. ___, 133 S.Ct. 1863, 1869, 185 L.Ed.2d___ (2013).
B. RES JUDICATA
1. Claim Preclusion
p. 866, Note 2, new (e): In the proceeding to dissolve the marriage between L and S
the family court judge considered L’s claims that S had committed acts of domestic
violence against her before and during the marriage in determining whether to award
spousal support to L. Subsequently, L brought a tort action for damages based on S's
alleged domestic violence. Is S entitled to judgment on the pleadings in the tort action
because the judgment in the dissolution proceeding precluded L from further litigating
the domestic violence issues? Boblitt v. Boblitt, 190 Cal.App.4th 603, 118 Cal.Rptr.3d
788 (2010) (no claim preclusion).
2. Issue Preclusion
p. 873, Note 2: For a case applying the rule that a common law retraxit (i.e., dismissal
with prejudice) is determinative of the issues in the action, which precludes the
dismissing party from litigating those issues again, see In re Estate of Redfield, 193
Cal.App.4th 1526, 124 Cal.Rptr.3d 402 (2011).
The Torrey Pines rule was applied in Federal Home Loan Bank v. Countrywide
Financial Corp., 214 Cal.App.4th 1520, 1527, 154 Cal.Rptr.3d 873, 879 (2013):
“ ‘A dismissal with prejudice is the modern name for a common law retraxit. . . .
Dismissal with prejudice is determinative of the issues in the action and precludes
the dismissing party from litigating those issues again.’ ” (Estate of Redfield
(2011) 193 Cal.App.4th 1526, 1533, 124 Cal.Rptr.3d 402, quoting Torrey Pines
Bank v. Superior Court (1989) 216 Cal.App.3d 813, 820, 265 Cal.Rptr. 217.) The
Bank's voluntary dismissal of its claim against Countrywide Financial in the
[prior] action “constituted a retraxit and determination on the merits invoking the
principles of res judicata.” Torrey Pines at p. 819.
Page 3 of 5
p. 874, Note 4: The Court of Appeal has concluded that the existence of an attorneyclient relationship does not establish privity between the attorney and her client for
purposes of collateral estoppel under California law. In reaching this conclusion, the
court rejected the reasoning of a few opinions from federal and other state courts to the
contrary. Kerner v. Superior Court, 206 Cal.App.4th 84, 141 Cal.Rptr.3d 504 (2012).
p. 884, Note 1: The California Court of Appeal has considered when a labor
arbitration pursuant to a collective bargaining agreement does or does not have a
preclusive effect on claims filed subsequently which are related to the state’s Fair
Employment and Housing Act. Wade v. Ports America Management Corp., 218
Cal.App.4th 648, 160 Cal.Rptr.3d 482 (2013).
p. 884, Note 1.5: Should the results in a small claims proceeding have an issue
preclusive effect? Compare Pitzen v. Superior Court, 120 Cal.App.4th 1374, 16
Cal.Rtpr.3d 628 (2004) (results have issue preclusive effect on a losing small claims
court plaintiff, but not on a small claims court defendant) with Sanders v. Walsh,
___Cal.App.4th ___, ___ Cal.Rptr.3d ___ 2013 WL 5112143 (no issue preclusive effect
on any small claims court parties).
p. 884, new Note 3: What is the preclusive effect of a criminal case on issues to be
decided in a civil matter? Although a criminal conviction is usually granted preclusive
effect, when a plea of guilty or no contest has been entered in the prior action, the plea is
treated as evidence but it is not conclusive. No issues were presented or resolved before
the plea was entered. Therefore, courts prohibit the application of issue preclusion against
a party who, having pleaded guilty to a criminal charge, seeks to litigate his cause for the
first time in a civil action. Oiye v. Fox, 211 Cal.App.4th 1036, 151 Cal.Rptr.3d 65
(2012).
p. 885, Note 1: A federal court likewise gives a state court judgment the same
preclusive effect as would be given that judgment under the law of the rendering state.
This includes state administrative decisions. White v. City of Pasadena, 671 F.3d 918
(9th Cir.2012).
p. 885, Note 1a: The California Court of Appeal has addressed when a sister state
judgment should be afforded issue preclusive effect under the Full Faith and Credit
Clause. The opinion distinguishes void judgments, which do not have to be granted full
faith and credit, from merely voidable judgments. “ * * * A final judgment in one State, if
rendered by a court with adjudicatory authority over the subject matter and persons
governed by the judgment, qualifies for recognition throughout the land. For claim and
issue preclusion (res judicata) purposes, in other words, the judgment of the rendering
State gains nationwide force. (Baker by Thomas v. General Motors Corp. (1998) 522
U.S. 222, 232–233, 118 S.Ct. 657, 139 L.Ed.2d 580.)” Proctor v. Vishay Intertechnology,
Inc., 213 Cal.App.4th 1258, 1269, 152 Cal.Rptr.3d 914, 922 (2013) (court held that lower
court properly granted issue preclusive effect to ruling of Delaware state court).
Page 4 of 5
p. 885, Note 2: An administrative decision may have a preclusive effect if the
administrative proceeding leading to that decision had a sufficiently judicial character.
The administrative agency must be “‘acting in a judicial capacity and resolve[] disputed
issues of fact properly before it which the parties have had an adequate opportunity to
litigate.’” Indicators that administrative proceedings are undertaken in a judicial capacity
include: “a hearing before an impartial decision maker; testimony given under oath or
affirmation; a party's ability to subpoena, call, examine, and cross-examine witnesses, to
introduce documentary evidence, and to make oral and written argument; the taking of a
record of the proceeding; and a written statement of reasons for the decision.” Basurto v.
Imperial Irrigation District, 211 Cal.App.4th 866, 150 Cal.Rptr.3d 145 (2012) (emphasis
in original).
p. 885, new Note 3: Another policy exception to the application of issue preclusion is
the public interest exception: “‘[W]hen the issue is a question of law rather than of fact,
the prior determination is not conclusive either if injustice would result or if the public
interest requires that relitigation not be foreclosed.’ ” Spicer v. City of Camarillo, 195
Cal.App.4th 1423, 1428, 125 Cal.Rptr.3d 357, 361 (2011) quoting City of Sacramento v.
State of California, 50 Cal.3d 51, 64, 266 Cal.Rptr. 139, 785 P.2d 522 (1990).
Page 5 of 5