The Sierra Club files a writ to stop a Wal-Mart store, and loses. Nancy Atwell thereafter files a writ to stop the same store, on similar grounds. Ms. Atwell wasn't a party to the first lawsuit, didn't at any level participate in the first suit, and isn't even a member of the Sierra Club.
Is Ms. Atwell's lawsuit barred by claim preclusion ("res judicata")? Is she deemed to be in privity with the Sierra Club such that she was "deemed" to be a party to the first lawsuit even though she wasn't?
The Court of Appeal says yes.
That may perhaps -- perhaps -- the right correct normative result. It may also well be supported by precedent in the California Court of Appeal, which has previously done some similar things.
But I gotta tell you, this is way beyond what the Supreme Court has ever done -- or even come close to doing -- and quite squarely departs from the traditional constraints that the Due Process Clause has been held to place on the extension of state law claim preclusion.
More specifically, I don't see how this result is at all consistent with the Supreme Court's opinion in Taylor v. Sturgell. If the Court of Appeal is correct in Atwell, then Taylor should have come out the same way, or identical reasons. But not only didn't it, but the Supreme Court in Taylor rejected the precise arguments that the Court of Appeal finds persuasive in Atwell.
The Supreme Court case, like the California case, involved duplicative "public interest" suits -- in Taylor, a FOIA request, and in Atwell, a writ petition challenging a EIR. In both cases, someone files the first lawsuit in the public interest (to get the documents published or stop the Wal-Mart), loses, and then someone else files a similar suit. The Court of Appeal says that the second suit is barred by claim preclusion because the first party was the "virtual representative" of the second party and adequately protected her interests. But the Supreme Court spent pages expressly rejecting this theory and explaining why it didn't work. I won't bore you with the details, but suffice it to say that there's absolutely NO WAY the Supreme Court that decided Taylor would find at all plausible either the reasoning or the result of the California Court of Appeal in Atwell. The cases are not in any way distinguishable. The result's gotta be the same. But it's not.
What does the Court of Appeal say about this? Nothing. The opinion never mentions the Supreme Court's opinion in Taylor nor attempts to distinguish it. Which perhaps is understandable, since my quick review of the briefs in the case suggests that none of 'em mention or cite the thing.
But it's nonetheless a freakishly important case. Pretty much on all fours. I think you gotta say something about it. Even if the parties don't.
Now, is the California judiciary required to adopt the exact same res judicata principles as the federal courts? No. They can do something different.
With this critical caveat. The extent to which you can bind a nonparty -- like Ms. Atwell -- is most definitely a federal issue on which federal law controls. Since the Due Process Clause constrains it. So California may not have to allow nonparty claim preclusion to the same degree as the federal system (e.g., the mutuality of estoppel rules don't need to be the same). But California still can't expand nonparty issue preclusion via "virtual representation" (as it does here) in a manner that violates the federal Due Process Clause. That's a matter of federal law. And on that point, we know fairly well the Supreme Court's thoughts. 'Cause they told us about 'em at length in Taylor. A case that squarely rejects pretty much every single doctrinal and policy-based principle on which Atwell relies.
So I think the Court of Appeal needs to take a long, hard look at the Supreme Court's opinion in Taylor here. This opinion was originally unpublished. Maybe it should stay that way. Or, at a minimum, explain why it comes out 180 degrees differently than the opinion of the United States Supreme Court. An opinion that's unanimous, no less.
No small feat.
