Wednesday, February 15, 2017

Samara v. Matar (Cal. Ct. App. - Feb. 15, 2017)

Every single word of this opinion from earlier today is correct.

And the Supreme Court should nonetheless grant review of the opinion.  On its own initiative, if necessary.

It's an opinion about res judicata.  A topic near and dear to my own heart, admittedly, but also one that's critically important to the efficient functioning of the judiciary.

The case involves both claim and issue preclusion, and the Court of Appeal both properly explains the difference between the two as well as -- with respect to claim preclusion -- why the lower court got it (horribly) wrong.  Spot on.

But the review-worthy portion of the opinion is the part about issue preclusion.

The basic problem is (relatively) easy to explain.  The trial court dismisses a case against Defendant One based on X and Y -- here, on causation as well as on statute of limitations grounds.  Plaintiff appeals, and the Court of Appeals affirms.  But the Court of Appeals only reaches the limitations issue (Y); since it can affirm on that basis alone, it never reaches the causation issue (X).

That same causation issue is relevant (indeed, dispositive) to Plaintiff's case against Defendant Two, which has not yet been resolved in the lower court.

So you've got an issue that was finally resolved in the trial court, and the underlying judgment was affirmed on appeal (but not on those grounds).  Is that issue -- X -- properly subject to issue preclusion?

I'll tell you what I teach to my students:  No.  It's not.  Because, to use my parlance, it wasn't an issue that was subjected to a full and fair opportunity to litigate, since the Court of Appeal never reached that particular issue.  To invest something with issue preclusion, I say, we have to be very confident we're right.  And that includes having the Court of Appeal review it, if necessary.  Here, there was an appeal, but the issue didn't get reviewed.  Hence no issue preclusion.

Justice Perluss says the same thing in today's opinion.  Only more persuasively and at length.  The Court of Appeal says, yep, no issue preclusion.

Here's the rub, though.

There's a California Supreme Court case from 1865 named Skidmore.  Which fairly clearly holds that there is issue preclusion in such a setting.


The Court of Appeal says that Skidmore has been "implicitly overruled" over time.  Not very clearly, I might add, but rather because various courts keep citing the Restatement, which adopts the contrary view of issue preclusion that I've articulated above.  So today's opinion -- like some other Court of Appeal opinions from California over the past several decades -- follow the "right" view rather than Skidmore.

But here's the thing:

(1)  The Ninth Circuit doesn't.  Federal cases interpreting California law seem to think that -- shockingly -- the not-overruled express holding of the California Supreme Court is binding on them.  And,

(2)  Trial courts get confused as well.  Ditto for parties.  'Cause they too, shockingly, occasionally follow the express holding of the California Supreme Court.

Those are understandable, but bad, results.  We should stop them.

So, in my view, the California Supreme Court should grant review of this opinion and expressly overrule Skidmore.

It won't take much time.  I think the opinion will be unanimous.  Heck, the California Supreme Court could just plagiarize the opinion by Justice Perluss, which gets it exactly right.

That'll quickly accomplish a valuable result.  It'll make clear what the res judicata law is here in California.  An issue over which various courts continue to disagree.

I think Justice Perluss might even agree with me; at one point in the opinion, he suggests that the California Supreme Court "might" want to review the issue.  I think the same thing.  But I'm willing to say it far more bluntly.

The California Supreme Court should grant review of this case even if no one files a petition.