Issue and claim preclusion in the wake of Samara

APPELLATE ZEALOTS

In a unanimous opinion issued earlier this year, the California Supreme Court made a major change in our state's law in the area of issue preclusion (formerly known as collateral estoppel) and claim preclusion (formerly known as res judicata). Specifically, the court held that when a trial court enters a judgment based on two or more independent grounds, and an appellate court then affirms on only one of those grounds, the trial court's ruling as to the ground not addressed by the appellate court has no preclusive effect. In reaching this result, the court overruled a precedent that had stood since the Civil War era. Samara v. Matar, 5 Cal. 5th 322 (2018), overruling People v. Skidmore, 27 Cal. 287 (1865).

In Samara, two dentists were jointly sued for malpractice by the same patient. Dentist A had recommended a procedure to the patient, and Dentist B had performed the procedure. The patient contended that Dentist A was vicariously liable for Dentist B's malpractice. Dentist B moved for summary judgment, contending that (1) the suit was untimely as to him, and (2) there was no evidence that he had caused the patient's injury. The trial court granted the motion on both grounds. When the patient appealed, the judgment was affirmed based only on the statute of limitations; the appellate court did not reach the causation issue.

Meanwhile, Dentist A moved for summary judgment as well, conceding that the suit was timely as to him (unlike Dentist B), but arguing that he could not be vicariously liable for Dentist B's conduct given the trial court's ruling that Dentist B did not cause the patient's injury. The trial court granted summary judgment in favor of Dentist A, and the patient again appealed. This time, the Court of Appeal reversed, holding that the trial court's earlier, unreviewed causation ruling in favor of Dentist B did not give rise either to claim preclusion or to issue preclusion with respect to Dentist A's liability. Dentist A then petitioned for review in the California Supreme Court.

The Supreme Court held that because the appellate court had not addressed the causation issue in Dentist B's appeal, the trial court's decision on that question was not entitled to any preclusive effect in the patient's case against Dentist A. More generally, it concluded that a trial court decision that has been appealed has no preclusive effect on any issue raised in the appeal; once an issue has been presented to an appellate court, only the decision of that court matters for preclusion purposes.

The Supreme Court's decision to overrule such a longstanding precedent as Skidmore is noteworthy, and the factors that led it to do so bear examining. During the time that elapsed between Skidmore and Samara -- more than a century -- the California Courts of Appeal had differed with regard to whether Skidmore applied only to claim preclusion, or to issue preclusion as well. Some had even gone so far as to refuse to follow it in cases involving issue preclusion. The Court of Appeal opinion in Samara itself took the unusual step of suggesting that the Supreme Court might want to reconsider Skidmore.

More importantly, the law had evolved significantly since 1865. In 1942, the first version of the Restatement of Judgments took a position flatly contrary to the conclusion reached in Skidmore. Other leading treatises, and courts in other jurisdictions, had also, as Samara explained, "refus[ed] to afford preclusive significance to a trial court determination that evades appellate review." Indeed, even in California, Skidmore was "in tension with some of our other preclusion case law" from the 20th century. The court also relied on the procedural importance of appellate review to litigants, opining that "although trial court decisions are often thorough, thoughtful, and correct, litigants should be afforded more procedural fairness before being bound by all aspects of a trial court's challenged determination." As a policy matter, the court concluded that "[a]ffording preclusive effect to a trial court determination that evades appellate review might speed up the resolution of controversies, but it would do so at the expense of fairness, accuracy, and the integrity of the judicial system." The court "decline[d] to endorse that tradeoff."

What are the implications of this decision for appellate practitioners? First, when making tactical decisions such as whether to appeal, or what arguments to raise, or what to emphasize in a respondent's brief, practitioners must take cognizance of the potential preclusive effect of an appellate opinion, and conversely, of the opportunity to avoid any preclusive effect of a particularly adverse aspect of a trial court's decision, if the appellate court can be persuaded to affirm without reaching that issue.

Second -- and more broadly -- Samara illustrates the rather scholarly bent of the present California Supreme Court. Four of the justices have law teaching experience, and two of them are former full-time law professors who held no prior judicial posts. This may render them more receptive to an argument that a venerable California precedent should be reexamined in light of contrary scholarly commentary and case law from other jurisdictions. Thus, counsel charged with drafting a petition for California Supreme Court review should consider whether a controlling adverse precedent is vulnerable to attack on the ground that its reasoning is outdated, in light of contemporary scholarship or more recent opinions in other jurisdictions.