Lytwyn Appellant's Opening Brief
D042401
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
RICHARD LYTWYN,
Plaintiff and Appellant,
vs.
FRY’S ELECTRONICS, INC., et al.
Defendants and Respondents
Appeal from the Superior Court of the State of California,
County of San Diego
Sheridan L. Reed, Judge (Case No. GIC 787977)
APPELLANT’S OPENING BRIEF
Unfair Competition Case
(Bus. & Prof. Code § 17209, and California Rules of Court, Rule 15(e)(2).)
THE MCMILLAN LAW FIRM, APC
Scott A. McMillan (State Bar No. 212506)
Michelle D. Volk (State Bar No. 217151)
4670 Nebo Drive, Suite 200
La Mesa, CA 91941-5230
Telephone: (619)464-1500 // Facsimile (206)600-5095
Attorneys for Plaintiff-Appellant Richard Lytwyn.
TABLE OF CONTENTS
INTRODUCTION ............................................ 1
SUMMARY OF THE CASE .................................... 1
PROCEDURAL HISTORY ..................................... 5
1. Lytwyn provides Notice according to the Consumer Legal
Remedies Act.
................................................ 5
2. Lytwyn testifies as a witness in Apex Wholesale, Inc. v. Fry’s
Electronics, Inc. .................................. 6
3. Lytwyn files suit for his own injuries. .................. 6
4. Fry’s files a notice of related case seeking assignment to
Judge Enright. .................................... 7
5. First Motion: Fry’s files an ex-parte application with Judge
Reed to stay the proceeding in her department. ........... 7
6. Second Motion: Fry’s files a noticed motion to stay the
proceedings. ...................................... 7
7. Third Motion: Fry’s submits an ex-parte application in Judge
Enright’s department to assume jurisdiction over the Lytwyn
case in Judge Reed’s department. .................... 10
8. Fourth Motion: Motion for preliminary injunction, request for
stay. ........................................... 11
9. Fifth Motion: Motion for reconsideration of prior motion for
preliminary injunction, request for stay.
...............................................
STATEMENT OF FACTS .................................... 16
STATEMENT OF APPELLATE JURISDICTION ................. 20
APPELLANT’S OPENING BRIEF ............................. 21
I. THIS COURT MUST CONDUCT AN INDEPENDENT
REVIEW OF THE ORDER GRANTING AN INJUNCTION
AGAINST THE PROSECUTION OF THIS MATTER. . . 21
II. THE TRIAL COURT ERRED IN APPLYING THE
DOCTRINE OF RES JUDICATA IN DETERMINING
THAT PLAINTIFF’S ACTION WAS BARRED UNLESS
AN UNRELATED ACTION WAS REVERSED ON
APPEAL ....................................... 23
A. The Doctrine of Res Judicata ..................... 24
B. Res Judicata does not bar Lytwyn’s case because there
were no Identity of Issues between the Apex Case and
Lytwyn’s complaint. ......................... 24
C. Res Judicata does not apply because there was no Final
Judgment on the Merits in the Apex Case. ........ 27
D. Res Judicata did not apply in Lytwyn’s action because
there is no Identity of parties / Privity with the parties
in the Apex Case. ........................... 28
1. Under even an expansive view of "privity," there is
no authority supporting the trial court's decision
to make a finding that Lytwyn was in privity
with Apex. ........................... 29
2. Whether an action is brought on behalf of the
general public does not evidence an identity of
parties or privity for the purpose of res judicata.
.................................... 32iv
3. Even if a law enforcement agency had brought suit
against the defendants, instead of a private
corporation as in the Apex Case, there would
not be an identity of parties, or privity, between
the prior plaintiff and Lytwyn. ........... 34
4. There was no demonstration that the interests of
Lytwyn were adequately represented in the
Apex Case to justify holding him in privity with
Apex. ............................... 40
E. Applying Res Judicata to preclude Lytwyn from litigating
his claims is against the public policy expressed by
California’s Legislature. ...................... 43
III. THE TRIAL COURT ERRED IN APPLYING THE RULE OF
EXCLUSIVE CONCURRENT JURISDICTION TO
JUSTIFY THE STAY IN THIS CASE. ............... 45
IV. DUE PROCESS BARRED THE COURT FROM ENJOINING
LYTWYN FROM PROSECUTING HIS OWN SUIT FOR
HIS DAMAGES. ................................. 47
V . THE COURT ABUSED ITS DISCRETION BY ISSUING THE
INJUNCTION IN THIS ACTION AND BY FAILING TO
REQUIRE AN UNDERTAKING. ................... 52
VI. THE COURT ERRED IN ENTERTAINING FRY’S
UNTIMELY MOTION FOR RECONSIDERATION. .... 54
CONCLUSION ............................................. 55
CERTIFICATE OF COUNSEL RE WORD LENGTH .............. 56
CERTIFICATE OF SERVICE ................................. 57
RULING OF MAY 22, 2003, OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN DIEGO,
HON. SHERIDAN L. REED, PRESIDING. ......... Appendix Av
TABLE OF AUTHORITIES
Page
California Decisional Authority.
Agarwal v. Johnson (1979) 25 Cal.3d 932, 954 .................... 25
Bartholomew v. Bartholomew (1942) 56 Cal. App. 2d 216, 225 ........ 52
Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 344 . . 25, 26
C&K Engineering v. Amber Steel Co. (1978) 23 C3d 1, 8 ............ 23
Cartt v. Superior Court (1975) 50 Cal. App. 3d 960 ................. 36
Childs v. Eltinge (1973) 29 Cal.App.3d 843, 847-848 ............... 47
Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Assn. (1998) 60
Cal.App.4th 1053 ................................ 24, 28, 30, 40, 41
Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 715 ................. 33
Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85
CA4th 1168, 1176 ........................................... 46
Hernandez v. Atlantic Finance Co. (1980) 105 Cal. App. 3d 65, 70-73 . . 33
Hunt v. Superior Court (Cal., 1999) 21 Cal. 4th 984, 999 ............. 21
In re Marriage of Orchard (1990) 224 CA3d 155, 160 .............. 46
Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 134 . 26,
33, 49
La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 883 ...... 33
Lynch v. Glass (1975) 44 CA3d 943, 950 ......................... 29
Minton v. Caveney (1961) 56 Cal. 2d 576, 581 ..................... 29vi
Mueller v. J. C. Penney Co. (1985) 173 Cal. App. 3d 713, 719 ........ 27
Payne v. National Collection Sys., (2001) 91 Cal. App. 4th 1037 ... 32, 37,
38
People ex rel. Gallo v. Acuna (Cal. , 1997) 14 Cal. 4th 1090, 1136-1137
........................................................... 22
People ex rel. Garamendi v. Am. Autoplan (1993) 20 Cal. App. 4th 760,
772 ....................................................... 45
People ex rel. Orloff v. Pacific Bell, 2003 Cal. LEXIS 9459, 44-45 ... 38,
39
People v. Pacific Land Research Co. (1977) 20 Cal. 3d 10, 14 ..... 34-36
People v. Sims (1982) 32 Cal.3d 468, 486 ......................... 27
Plant Insulation Co. v. Fibreboard Corp. (1990) 224 CA3d 781 ...... 45
Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26 . . 32, 33
Rynsburger v. Dairyman’s Fertilizer Corp., Inc. (1968)266 CA2d 269, 279
........................................................ 29, 31
Scott Co. v. United States Fidelity & Guaranty Ins. Co. (Cal. App. , 2003)
107 Cal. App. 4th 197 ........................................ 54
Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 561
..................................................... 33, 44, 49
Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807-808 ............. 33
Victa v. Merle Norman Cosmetics (Cal. App. , 1993) 19 Cal. App. 4th 454
........................................................ 41, 42
White v. Vitramar, Inc. (1999) 21 Cal.4th 563,574, fn. 4 ............. 25
Wilner v. Sunset Life Ins. Co. (2000) 78 CA4th 952, 970 ............ 29vii
California Statutory Authority
Bus. & Prof. Code § 17200 .................................... 33
Bus. & Prof. Code § 17203 .................................... 33
Bus. & Prof. Code § 17204 .................................... 33
Bus. & Prof. Code § 17205 .................................... 44
Civil Code § 1780 ........................................... 27
Civil Code § 1794 ........................................... 27
Code of Civil Procedure § 526(a)(6) ............................. 52
Code of Civil Procedure § 904.1(a)(6.) ........................... 20
Consumer Legal Remedies Act, Civil Code section 1750, et seq. ..... 2, 6
False Advertising Law, Bus. & Prof. Code § 17500 ................ 2, 6
Prohibition against Sales of Used Merchandise as New, Bus. & Prof. Code
17531 .................................................... 2, 6
Song-Beverly Consumer Warranty Act, Civil Code section 1790, et seq. 2,
6
Unfair Competition Law, Bus. & Prof. Code§ 17200. .............. 2, 6viii
Federal Decisional Authority
Blonder-Tongue Laboratories v. University of Illinois Foundation, 91 S.Ct.
1434, 1443 (1971) ........................................... 48
Hansberry v. Lee (1940) 311 U.S. 32, 40-46, 85 L. Ed. 22, 61 S. Ct. 115;
........................................................... 49
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L.
Ed. 865, 70 S. Ct. 652 (1950) .................................. 47
Richards v. Jefferson County, Ala., 135 L. Ed. 2d 76, 116 S. Ct. 1761, 1766
(1996) ................................................. 48-50
South Central Bell Telephone Co. v. Alabama (1999) 526 U.S. 160, 168,
143 L. Ed. 2d 258, 119 S. Ct. 1180 ........................... 50, 51
Southwest Airlines Co. v. Texas Int'l Airlines, 546 F.2d 84, 95 (5th Cir.),
cert. denied, 434 U.S. 832, 54 L. Ed. 2d 93, 98 S. Ct. 117 (1977) ...... 48
Other
11 Witkin, Summary of Cal. Law (9th ed. 1990 & 2002 Supp.) Equity, §
95A, p. 452 ................................................. 32
Assembly Bill 1884 ....................................... 43, 44
Fellmeth, California's Unfair Competition Act: Conundrums and
Confusions (Jan. 1995) 26 Cal. Law Revision Com. Rep. (1996) p. 227
........................................................... 42
Fellmeth, Unfair Competition Act Enforcement by Agencies, Prosecutors,
and Private Litigants: Who's on First? (1995) vol. 15, No. 1, Cal. Reg.
L.Rptr. 1.) ............................................... 42, 491
INTRODUCTION
This appeal arises from an order entered by the San Diego Superior
Court enjoining the plaintiff-appellant Richard Lytwyn (“Lytwyn”) from
prosecuting his lawsuit against defendants-respondents Fry’s Electronics,
Inc. (“Fry’s”), its Vice-President, William Randolph Fry, and its VicePresident,
Kathryn Kolder. By his suit against the defendants, he seeks to
recover actual and punitive damages, and attorneys fees, for his own
injuries, and restitution, injunctive relief for himself and on behalf of the
general public.
Lytwyn provided testimony in an unrelated case about what the
defendants-appellants did to him. By virtue of the trial court’s ruling
appealed here, because he was a witness in the other case and is represented
by an attorney who participated in the other case, Lytwyn cannot prosecute
his own case to recover for his own injuries or for those injuries suffered by
other members of the general public.
SUMMARY OF THE CASE
Lytwyn is a 78 year old, disabled resident of San Diego County,
California. This lawsuit arose after Lytwyn responded to a Fry’s
Electronics Inc. advertisement in the San Diego Union Tribune. Lytwyn
purchased several pieces of merchandise from Fry’s that were not sold
according to the terms of the advertisement, i.e., the goods were mismarked or
used.
Lytwyn now sues defendants-respondents Fry’s Electronics, Inc.
(“Fry’s”), William Randolph Fry, and Kathryn Kolder for advertising and
selling him used and mislabeled merchandise instead of the merchandise
advertised. In his suit, Lytwyn seeks actual and punitive damages,
restitution, and injunctive relief. Lytwn claims that the defendants violated
their statutory warranty obligations according to the Song-Beverly
Consumer Warranty Act, Civil Code section 1790, et seq.; that defendants
violated the Consumer Legal Remedies Act, Civil Code section 1750, et
seq.; that defendants violated the prohibition against sales of secondhand
merchandise as new, Bus. & Prof. Code 17531; that defendants committed
False Advertising, Bus. & Prof. Code section 17500; and that the
defendants violated the Unfair Competition Law, Bus. & Prof. Code section
17200.
Lytwyn attempted to resolve his complaints prior to initiating any
litigation. (AA 361-380.) He first visited the store and attempted to resolve
the matter informally. (AA 371.) Fry’s offered to replace the used
merchandise that it had sold Lytwyn with new merchandise. Because
Lytwyn only discovered that the merchandise was used after it had been
installed, Lytwyn incurred expense for the installation which was performed...
...Questions underlying the preliminary injunction are reviewed
under the appropriate standard of review. Thus, for example,
issues of fact are subject to review under the substantial
evidence standard; issues of pure law are subject to
independent review. ( Bullock v. City and County of San
Francisco (1990) 221 Cal. App. 3d 1072, 1094 [" 'the
standard of review [for issues of pure law] is not abuse of
discretion but whether statutory or constitutional law was
correctly interpreted and applied by the trial court.' "].)
(People ex rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1136-1137)
The trial court did not properly apply the law relating to res judicata
in staying the litigation of the claims of Lytwyn. The trial court based its
determination of the identity of the party, the identity of issues, by relying
on an extension of privity beyond the named parties in the Apex Case.
That determination cannot be squared against either California law
applying
res judicata or the United States’ Constitution guarantee of due
process.
II. THE TRIAL COURT ERRED IN APPLYING THE
DOCTRINE OF RES JUDICATA IN DETERMINING THAT
PLAINTIFF’S ACTION WAS BARRED UNLESS AN
UNRELATED ACTION WAS REVERSED ON APPEAL.
Essentially, Judge Reed's decision holds that the Apex Case, absent
reversal of Judge Enright's decision on appeal, bars Lytwyn from recovering
from not only his equitable claims under the UCL, the False Advertising
Law, and the prohibition against sales of second hand merchandise, but also
his legal claims for damages according to the Song Beverly Consumer
Warranty Act, and the Consumer Legal Remedies Act. (AA 100-114.) The
distinction is significant because the equitable claims did
not entitle Lytwyn to a jury trial or to recover damages,
while the legal claims do.
(C&KEngineering v. Amber Steel Co. (1978) 23 C3d 1, 8.)
Assuming, for arguments sake, that the trial in the equitable case did
extinguish the rights of the consumer witnesses to bring their own claims,
for which they could only recover restitution and injunctive relief. Can the
right based on a legal claim, determinable by a jury, also be foreclosed?
No.
A. The Doctrine of Res Judicata
The doctrine of res judicata rests on the ground that the party
to be affected, or some other with whom he is in privity, has
litigated, or had an opportunity to litigate the same matter in a
former action in a court of competent jurisdiction, and should
not be permitted to litigate it again to the harassment and
vexation of his opponent. Public policy and the interests of
litigants alike require that there be an end to litigation.
[Citation.] The doctrine applies when 1) the issues decided in
the prior adjudication are identical with those presented in the
later action; 2) there was a final judgment on the merits in the
prior action; and 3) the party against whom the plea is raised
was a party or was in privity with a party to the prior
adjudication. [Citation.] Even if these threshold requirements
are established, res judicata will not be applied ‘if injustice
would result or if the public interest requires that relitigation
not be foreclosed. [Citations.]’ [Citation.]”
(Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Assn. (1998) 60
Cal.App.4th 1053, 1065 ("COAST")
B. Res Judicata does not bar Lytwyn’s case because
there were no Identity of Issues between the Apex Case
and Lytwyn’s complaint.
To determine if a first judgment will bar the raising of issues in a second
suit, the courts will apply the identity of issues requirement. "We must compare
the two actions, looking at the rights which are sought to be vindicated and the
harm for which redress is claimed. [Citation.]" (COAST, supra, 60 Cal.App.4th
at p. 1067.) This analysis looks to the pleadings and proof in each case. (Ibid.)
"'There is only a single cause of action for the invasion of one primary right,'
even if multiple theories of recovery are asserted. [Citations.]" (Ibid.) In the Apex
Case, the plaintiff was seeking compensation for the competitive injury
resulting from defendants sales below costs, false advertising, and other
commercial misconduct. (AA 341-359.)
Apex sued Fry’s for violating the
Unfair Practices Act, Bus. & Prof. Code section 17000, False Advertising, Bus.
& Prof. Code § 17500, and Unfair Competition, Bus. & Prof. Code section
17200, and for interference with prospective economic advantage. (Id.)
A judgment in one action will not preclude maintenance of a second
action unless the issues or causes of action are identical. (Agarwal v.
Johnson
(1979) 25 Cal.3d 932, 954, disapproved on other grounds in White v. Vitramar,
Inc. (1999) 21 Cal.4th 563,574, fn. 4.) In ascertaining whether issues and
causes of action are identical, California courts utilize the “primary
rights”
theory. Under this approach, “there is only a single cause of action for
the
invasion of one primary right.” (Ibid.)
However, despite this seemingly all encompassing approach, it is recognized
that “the bar of res judicata does not
apply where ‘[t]he plaintiff was unable to rely on a certain theory of the
case or
to seek a certain remedy or form of relief in the first action because of
the
limitations on the subject matter jurisdiction of the courts or
restrictions on
their authority to entertain multiple theories or demands for multiple
remedies
or forms of relief in a single action, and the plaintiff desires in the
second
action to rely on that theory or to seek that remedy or form of relief.’
[Citation.]” (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327,
D042401
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
RICHARD LYTWYN,
Plaintiff and Appellant,
vs.
FRY’S ELECTRONICS, INC., et al.
Defendants and Respondents
Appeal from the Superior Court of the State of California,
County of San Diego
Sheridan L. Reed, Judge (Case No. GIC 787977)
APPELLANT’S OPENING BRIEF
Unfair Competition Case
(Bus. & Prof. Code § 17209, and California Rules of Court, Rule 15(e)(2).)
THE MCMILLAN LAW FIRM, APC
Scott A. McMillan (State Bar No. 212506)
Michelle D. Volk (State Bar No. 217151)
4670 Nebo Drive, Suite 200
La Mesa, CA 91941-5230
Telephone: (619)464-1500 // Facsimile (206)600-5095
Attorneys for Plaintiff-Appellant Richard Lytwyn.
TABLE OF CONTENTS
INTRODUCTION ............................................ 1
SUMMARY OF THE CASE .................................... 1
PROCEDURAL HISTORY ..................................... 5
1. Lytwyn provides Notice according to the Consumer Legal
Remedies Act.
................................................ 5
2. Lytwyn testifies as a witness in Apex Wholesale, Inc. v. Fry’s
Electronics, Inc. .................................. 6
3. Lytwyn files suit for his own injuries. .................. 6
4. Fry’s files a notice of related case seeking assignment to
Judge Enright. .................................... 7
5. First Motion: Fry’s files an ex-parte application with Judge
Reed to stay the proceeding in her department. ........... 7
6. Second Motion: Fry’s files a noticed motion to stay the
proceedings. ...................................... 7
7. Third Motion: Fry’s submits an ex-parte application in Judge
Enright’s department to assume jurisdiction over the Lytwyn
case in Judge Reed’s department. .................... 10
8. Fourth Motion: Motion for preliminary injunction, request for
stay. ........................................... 11
9. Fifth Motion: Motion for reconsideration of prior motion for
preliminary injunction, request for stay.
...............................................
STATEMENT OF FACTS .................................... 16
STATEMENT OF APPELLATE JURISDICTION ................. 20
APPELLANT’S OPENING BRIEF ............................. 21
I. THIS COURT MUST CONDUCT AN INDEPENDENT
REVIEW OF THE ORDER GRANTING AN INJUNCTION
AGAINST THE PROSECUTION OF THIS MATTER. . . 21
II. THE TRIAL COURT ERRED IN APPLYING THE
DOCTRINE OF RES JUDICATA IN DETERMINING
THAT PLAINTIFF’S ACTION WAS BARRED UNLESS
AN UNRELATED ACTION WAS REVERSED ON
APPEAL ....................................... 23
A. The Doctrine of Res Judicata ..................... 24
B. Res Judicata does not bar Lytwyn’s case because there
were no Identity of Issues between the Apex Case and
Lytwyn’s complaint. ......................... 24
C. Res Judicata does not apply because there was no Final
Judgment on the Merits in the Apex Case. ........ 27
D. Res Judicata did not apply in Lytwyn’s action because
there is no Identity of parties / Privity with the parties
in the Apex Case. ........................... 28
1. Under even an expansive view of "privity," there is
no authority supporting the trial court's decision
to make a finding that Lytwyn was in privity
with Apex. ........................... 29
2. Whether an action is brought on behalf of the
general public does not evidence an identity of
parties or privity for the purpose of res judicata.
.................................... 32iv
3. Even if a law enforcement agency had brought suit
against the defendants, instead of a private
corporation as in the Apex Case, there would
not be an identity of parties, or privity, between
the prior plaintiff and Lytwyn. ........... 34
4. There was no demonstration that the interests of
Lytwyn were adequately represented in the
Apex Case to justify holding him in privity with
Apex. ............................... 40
E. Applying Res Judicata to preclude Lytwyn from litigating
his claims is against the public policy expressed by
California’s Legislature. ...................... 43
III. THE TRIAL COURT ERRED IN APPLYING THE RULE OF
EXCLUSIVE CONCURRENT JURISDICTION TO
JUSTIFY THE STAY IN THIS CASE. ............... 45
IV. DUE PROCESS BARRED THE COURT FROM ENJOINING
LYTWYN FROM PROSECUTING HIS OWN SUIT FOR
HIS DAMAGES. ................................. 47
V . THE COURT ABUSED ITS DISCRETION BY ISSUING THE
INJUNCTION IN THIS ACTION AND BY FAILING TO
REQUIRE AN UNDERTAKING. ................... 52
VI. THE COURT ERRED IN ENTERTAINING FRY’S
UNTIMELY MOTION FOR RECONSIDERATION. .... 54
CONCLUSION ............................................. 55
CERTIFICATE OF COUNSEL RE WORD LENGTH .............. 56
CERTIFICATE OF SERVICE ................................. 57
RULING OF MAY 22, 2003, OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN DIEGO,
HON. SHERIDAN L. REED, PRESIDING. ......... Appendix Av
TABLE OF AUTHORITIES
Page
California Decisional Authority.
Agarwal v. Johnson (1979) 25 Cal.3d 932, 954 .................... 25
Bartholomew v. Bartholomew (1942) 56 Cal. App. 2d 216, 225 ........ 52
Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 344 . . 25, 26
C&K Engineering v. Amber Steel Co. (1978) 23 C3d 1, 8 ............ 23
Cartt v. Superior Court (1975) 50 Cal. App. 3d 960 ................. 36
Childs v. Eltinge (1973) 29 Cal.App.3d 843, 847-848 ............... 47
Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Assn. (1998) 60
Cal.App.4th 1053 ................................ 24, 28, 30, 40, 41
Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 715 ................. 33
Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85
CA4th 1168, 1176 ........................................... 46
Hernandez v. Atlantic Finance Co. (1980) 105 Cal. App. 3d 65, 70-73 . . 33
Hunt v. Superior Court (Cal., 1999) 21 Cal. 4th 984, 999 ............. 21
In re Marriage of Orchard (1990) 224 CA3d 155, 160 .............. 46
Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 134 . 26,
33, 49
La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 883 ...... 33
Lynch v. Glass (1975) 44 CA3d 943, 950 ......................... 29
Minton v. Caveney (1961) 56 Cal. 2d 576, 581 ..................... 29vi
Mueller v. J. C. Penney Co. (1985) 173 Cal. App. 3d 713, 719 ........ 27
Payne v. National Collection Sys., (2001) 91 Cal. App. 4th 1037 ... 32, 37,
38
People ex rel. Gallo v. Acuna (Cal. , 1997) 14 Cal. 4th 1090, 1136-1137
........................................................... 22
People ex rel. Garamendi v. Am. Autoplan (1993) 20 Cal. App. 4th 760,
772 ....................................................... 45
People ex rel. Orloff v. Pacific Bell, 2003 Cal. LEXIS 9459, 44-45 ... 38,
39
People v. Pacific Land Research Co. (1977) 20 Cal. 3d 10, 14 ..... 34-36
People v. Sims (1982) 32 Cal.3d 468, 486 ......................... 27
Plant Insulation Co. v. Fibreboard Corp. (1990) 224 CA3d 781 ...... 45
Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26 . . 32, 33
Rynsburger v. Dairyman’s Fertilizer Corp., Inc. (1968)266 CA2d 269, 279
........................................................ 29, 31
Scott Co. v. United States Fidelity & Guaranty Ins. Co. (Cal. App. , 2003)
107 Cal. App. 4th 197 ........................................ 54
Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 561
..................................................... 33, 44, 49
Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807-808 ............. 33
Victa v. Merle Norman Cosmetics (Cal. App. , 1993) 19 Cal. App. 4th 454
........................................................ 41, 42
White v. Vitramar, Inc. (1999) 21 Cal.4th 563,574, fn. 4 ............. 25
Wilner v. Sunset Life Ins. Co. (2000) 78 CA4th 952, 970 ............ 29vii
California Statutory Authority
Bus. & Prof. Code § 17200 .................................... 33
Bus. & Prof. Code § 17203 .................................... 33
Bus. & Prof. Code § 17204 .................................... 33
Bus. & Prof. Code § 17205 .................................... 44
Civil Code § 1780 ........................................... 27
Civil Code § 1794 ........................................... 27
Code of Civil Procedure § 526(a)(6) ............................. 52
Code of Civil Procedure § 904.1(a)(6.) ........................... 20
Consumer Legal Remedies Act, Civil Code section 1750, et seq. ..... 2, 6
False Advertising Law, Bus. & Prof. Code § 17500 ................ 2, 6
Prohibition against Sales of Used Merchandise as New, Bus. & Prof. Code
17531 .................................................... 2, 6
Song-Beverly Consumer Warranty Act, Civil Code section 1790, et seq. 2,
6
Unfair Competition Law, Bus. & Prof. Code§ 17200. .............. 2, 6viii
Federal Decisional Authority
Blonder-Tongue Laboratories v. University of Illinois Foundation, 91 S.Ct.
1434, 1443 (1971) ........................................... 48
Hansberry v. Lee (1940) 311 U.S. 32, 40-46, 85 L. Ed. 22, 61 S. Ct. 115;
........................................................... 49
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L.
Ed. 865, 70 S. Ct. 652 (1950) .................................. 47
Richards v. Jefferson County, Ala., 135 L. Ed. 2d 76, 116 S. Ct. 1761, 1766
(1996) ................................................. 48-50
South Central Bell Telephone Co. v. Alabama (1999) 526 U.S. 160, 168,
143 L. Ed. 2d 258, 119 S. Ct. 1180 ........................... 50, 51
Southwest Airlines Co. v. Texas Int'l Airlines, 546 F.2d 84, 95 (5th Cir.),
cert. denied, 434 U.S. 832, 54 L. Ed. 2d 93, 98 S. Ct. 117 (1977) ...... 48
Other
11 Witkin, Summary of Cal. Law (9th ed. 1990 & 2002 Supp.) Equity, §
95A, p. 452 ................................................. 32
Assembly Bill 1884 ....................................... 43, 44
Fellmeth, California's Unfair Competition Act: Conundrums and
Confusions (Jan. 1995) 26 Cal. Law Revision Com. Rep. (1996) p. 227
........................................................... 42
Fellmeth, Unfair Competition Act Enforcement by Agencies, Prosecutors,
and Private Litigants: Who's on First? (1995) vol. 15, No. 1, Cal. Reg.
L.Rptr. 1.) ............................................... 42, 491
INTRODUCTION
This appeal arises from an order entered by the San Diego Superior
Court enjoining the plaintiff-appellant Richard Lytwyn (“Lytwyn”) from
prosecuting his lawsuit against defendants-respondents Fry’s Electronics,
Inc. (“Fry’s”), its Vice-President, William Randolph Fry, and its VicePresident,
Kathryn Kolder. By his suit against the defendants, he seeks to
recover actual and punitive damages, and attorneys fees, for his own
injuries, and restitution, injunctive relief for himself and on behalf of the
general public.
Lytwyn provided testimony in an unrelated case about what the
defendants-appellants did to him. By virtue of the trial court’s ruling
appealed here, because he was a witness in the other case and is represented
by an attorney who participated in the other case, Lytwyn cannot prosecute
his own case to recover for his own injuries or for those injuries suffered by
other members of the general public.
SUMMARY OF THE CASE
Lytwyn is a 78 year old, disabled resident of San Diego County,
California. This lawsuit arose after Lytwyn responded to a Fry’s
Electronics Inc. advertisement in the San Diego Union Tribune. Lytwyn
purchased several pieces of merchandise from Fry’s that were not sold
according to the terms of the advertisement, i.e., the goods were mismarked or
used.
Lytwyn now sues defendants-respondents Fry’s Electronics, Inc.
(“Fry’s”), William Randolph Fry, and Kathryn Kolder for advertising and
selling him used and mislabeled merchandise instead of the merchandise
advertised. In his suit, Lytwyn seeks actual and punitive damages,
restitution, and injunctive relief. Lytwn claims that the defendants violated
their statutory warranty obligations according to the Song-Beverly
Consumer Warranty Act, Civil Code section 1790, et seq.; that defendants
violated the Consumer Legal Remedies Act, Civil Code section 1750, et
seq.; that defendants violated the prohibition against sales of secondhand
merchandise as new, Bus. & Prof. Code 17531; that defendants committed
False Advertising, Bus. & Prof. Code section 17500; and that the
defendants violated the Unfair Competition Law, Bus. & Prof. Code section
17200.
Lytwyn attempted to resolve his complaints prior to initiating any
litigation. (AA 361-380.) He first visited the store and attempted to resolve
the matter informally. (AA 371.) Fry’s offered to replace the used
merchandise that it had sold Lytwyn with new merchandise. Because
Lytwyn only discovered that the merchandise was used after it had been
installed, Lytwyn incurred expense for the installation which was performed...
...Questions underlying the preliminary injunction are reviewed
under the appropriate standard of review. Thus, for example,
issues of fact are subject to review under the substantial
evidence standard; issues of pure law are subject to
independent review. ( Bullock v. City and County of San
Francisco (1990) 221 Cal. App. 3d 1072, 1094 [" 'the
standard of review [for issues of pure law] is not abuse of
discretion but whether statutory or constitutional law was
correctly interpreted and applied by the trial court.' "].)
(People ex rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1136-1137)
The trial court did not properly apply the law relating to res judicata
in staying the litigation of the claims of Lytwyn. The trial court based its
determination of the identity of the party, the identity of issues, by relying
on an extension of privity beyond the named parties in the Apex Case.
That determination cannot be squared against either California law
applying
res judicata or the United States’ Constitution guarantee of due
process.
II. THE TRIAL COURT ERRED IN APPLYING THE
DOCTRINE OF RES JUDICATA IN DETERMINING THAT
PLAINTIFF’S ACTION WAS BARRED UNLESS AN
UNRELATED ACTION WAS REVERSED ON APPEAL.
Essentially, Judge Reed's decision holds that the Apex Case, absent
reversal of Judge Enright's decision on appeal, bars Lytwyn from recovering
from not only his equitable claims under the UCL, the False Advertising
Law, and the prohibition against sales of second hand merchandise, but also
his legal claims for damages according to the Song Beverly Consumer
Warranty Act, and the Consumer Legal Remedies Act. (AA 100-114.) The
distinction is significant because the equitable claims did
not entitle Lytwyn to a jury trial or to recover damages,
while the legal claims do.
(C&KEngineering v. Amber Steel Co. (1978) 23 C3d 1, 8.)
Assuming, for arguments sake, that the trial in the equitable case did
extinguish the rights of the consumer witnesses to bring their own claims,
for which they could only recover restitution and injunctive relief. Can the
right based on a legal claim, determinable by a jury, also be foreclosed?
No.
A. The Doctrine of Res Judicata
The doctrine of res judicata rests on the ground that the party
to be affected, or some other with whom he is in privity, has
litigated, or had an opportunity to litigate the same matter in a
former action in a court of competent jurisdiction, and should
not be permitted to litigate it again to the harassment and
vexation of his opponent. Public policy and the interests of
litigants alike require that there be an end to litigation.
[Citation.] The doctrine applies when 1) the issues decided in
the prior adjudication are identical with those presented in the
later action; 2) there was a final judgment on the merits in the
prior action; and 3) the party against whom the plea is raised
was a party or was in privity with a party to the prior
adjudication. [Citation.] Even if these threshold requirements
are established, res judicata will not be applied ‘if injustice
would result or if the public interest requires that relitigation
not be foreclosed. [Citations.]’ [Citation.]”
(Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Assn. (1998) 60
Cal.App.4th 1053, 1065 ("COAST")
B. Res Judicata does not bar Lytwyn’s case because
there were no Identity of Issues between the Apex Case
and Lytwyn’s complaint.
To determine if a first judgment will bar the raising of issues in a second
suit, the courts will apply the identity of issues requirement. "We must compare
the two actions, looking at the rights which are sought to be vindicated and the
harm for which redress is claimed. [Citation.]" (COAST, supra, 60 Cal.App.4th
at p. 1067.) This analysis looks to the pleadings and proof in each case. (Ibid.)
"'There is only a single cause of action for the invasion of one primary right,'
even if multiple theories of recovery are asserted. [Citations.]" (Ibid.) In the Apex
Case, the plaintiff was seeking compensation for the competitive injury
resulting from defendants sales below costs, false advertising, and other
commercial misconduct. (AA 341-359.)
Apex sued Fry’s for violating the
Unfair Practices Act, Bus. & Prof. Code section 17000, False Advertising, Bus.
& Prof. Code § 17500, and Unfair Competition, Bus. & Prof. Code section
17200, and for interference with prospective economic advantage. (Id.)
A judgment in one action will not preclude maintenance of a second
action unless the issues or causes of action are identical. (Agarwal v.
Johnson
(1979) 25 Cal.3d 932, 954, disapproved on other grounds in White v. Vitramar,
Inc. (1999) 21 Cal.4th 563,574, fn. 4.) In ascertaining whether issues and
causes of action are identical, California courts utilize the “primary
rights”
theory. Under this approach, “there is only a single cause of action for
the
invasion of one primary right.” (Ibid.)
However, despite this seemingly all encompassing approach, it is recognized
that “the bar of res judicata does not
apply where ‘[t]he plaintiff was unable to rely on a certain theory of the
case or
to seek a certain remedy or form of relief in the first action because of
the
limitations on the subject matter jurisdiction of the courts or
restrictions on
their authority to entertain multiple theories or demands for multiple
remedies
or forms of relief in a single action, and the plaintiff desires in the
second
action to rely on that theory or to seek that remedy or form of relief.’
[Citation.]” (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327,
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Res judicata
Lytwyn v. Fry's Electronics, Inc.
C.A. 4th
February 22, 2005
Similar interests of parties in separate suits against retailer did not result in
privity.
Richard Lytwyn v. Fry’s Electronics, Inc., et al., Case No. D042401, Court of Appeal
of California, Fourth Appellate District, Diviison One, 2005 Cal. App. LEXIS 267
Order granting preliminary injunction reversed with directions.
C.A. 4th
February 22, 2005
Similar interests of parties in separate suits against retailer did not result in
privity.
Richard Lytwyn v. Fry’s Electronics, Inc., et al., Case No. D042401, Court of Appeal
of California, Fourth Appellate District, Diviison One, 2005 Cal. App. LEXIS 267
Order granting preliminary injunction reversed with directions.
Decision notes
Lytwyn v. Fry's
Electronics, Inc.
res judicata
Page 25 collateral
estoppell
page 11
Judge Enright had
believed Lytwyn's
testimony in the Apex
case, but had denied
relief.
page 13
When court said that
Plaintiff couldn't apply
for a default, that was
an appealable
injunction
Lytwyn v. Fry's
Electronics, Inc.
res judicata
Page 25 collateral
estoppell
page 11
Judge Enright had
believed Lytwyn's
testimony in the Apex
case, but had denied
relief.
page 13
When court said that
Plaintiff couldn't apply
for a default, that was
an appealable
injunction
California Code of Civil
Procedure Section 906
906. Upon an appeal pursuant to
Section 904.1 or 904.2, the
reviewing court may review the
verdict or decision and any
intermediate ruling, proceeding,
order or decision which involves
the merits or necessarily affects
the judgment or order appealed
from or which substantially
affects the rights of a party,
including,
on any appeal from the judgment,
any order on motion for a new trial, and
may affirm, reverse or modify any judgment or
order appealed from and
may direct the proper judgment or order to be
entered, and may, if necessary or
proper, direct a new trial or
further proceedings to be had.
The respondent, or party in whose favor the
judgment was given,
may, without appealing from such
judgment, request the reviewing
court to and it may review any of the
foregoing matters for the
purpose of determining whether or not
the appellant was prejudiced by
the error or errors upon which he relies
for reversal or
modification of the judgment from which
the appeal is taken. The
provisions of this section do not authorize the
reviewing court to
review any decision or order from which an
appeal might have been
taken.
Procedure Section 906
906. Upon an appeal pursuant to
Section 904.1 or 904.2, the
reviewing court may review the
verdict or decision and any
intermediate ruling, proceeding,
order or decision which involves
the merits or necessarily affects
the judgment or order appealed
from or which substantially
affects the rights of a party,
including,
on any appeal from the judgment,
any order on motion for a new trial, and
may affirm, reverse or modify any judgment or
order appealed from and
may direct the proper judgment or order to be
entered, and may, if necessary or
proper, direct a new trial or
further proceedings to be had.
The respondent, or party in whose favor the
judgment was given,
may, without appealing from such
judgment, request the reviewing
court to and it may review any of the
foregoing matters for the
purpose of determining whether or not
the appellant was prejudiced by
the error or errors upon which he relies
for reversal or
modification of the judgment from which
the appeal is taken. The
provisions of this section do not authorize the
reviewing court to
review any decision or order from which an
appeal might have been
taken.
Res judicata and collateral estoppel
The concepts of res judicata and collateral estoppel
are very similar and easily confused since they both
stand for the basic principal that when a person
goes to court they should only have one bite at
the apple and they cannot re-litigate the same
issue over and over again.
The California Supreme Court states that “collateral
estoppel is a distinct aspect of res judicata. ‘The
doctrine of res judicata gives conclusive effect
to a former judgment in subsequent litigation
between the same parties involving the same
cause of action. A prior judgment for the
plaintiff results in a merger and supersedes the
new action by a right of action on the judgment.
A prior judgment for the defendant on the same
cause of action is a complete bar to the new action.
(4 Witkin, Cal. Procedure (2d ed. 1971) Judgment,
§§ 147–148, pp. 3292–3293.)
Collateral estoppel … involves a second action
between the same parties on a
different cause of action. The first action is not
a complete merger or bar, but operates as an
estoppel or conclusive adjudication as to such
issues in the second
action which were actually litigated and
determined in the first action. (citations
omitted.)’ (Rymer v. Hagler (1989) 211 Cal. App.
3d 1171.)” (Murray v. Alaska
Airlines, Inc. (2010) 50 Cal.4th 860.)
Res Judicata
Referring to claims preclusion, the California
Supreme Court has stated: “‘Res judicata’ describes
the preclusive effect of a final judgment on the
merits.” (Mycogen Corp. v. Monsanto Co., 28
Cal. 4th 888, 896 (2002).) It “prevents relitigation of
the same cause of action in a second suit between
the same parties or parties
in privity with them.” (Id. at p. 897.)
Under the doctrine, “all claims based on the same
cause of action must be decided in a single suit; if
not brought initially,
they may not be raised at a later date.” (Ibid.)
Additionally, the doctrine bars the filing of claims in a
second suit that are “based on the same cause of
action” as one asserted in a prior action if they are
both
premised on the same “primary right.” (Mycogen
Corp. v. Monsanto Co., supra, 28 Cal. 4th at 904
(emphasis added).) “The plaintiff ’s primary right is
the right
to be free from a particular injury. A cause of action
comprises the factors: (1) the plaintiff ’s primary right,
(2) the defendant’s corresponding primary duty, and
(3) the defendant’s wrongful act that breaches that
duty. (Federation of Hillside & Canyon Assns. v. City
of Los Angeles, 126 Cal. App.4th 1180, 1202 (2004);
Mycogen Corp. v. Monsanto Co., 28 Cal. 4th at 904-
906.)
To determine whether claim preclusion bars another
action or proceeding, courts look to whether the two
proceedings involve the same cause of action. (Alpha
Mechanical, Heating & Air Conditioning, Inc. v.
Travelers Cas. & Sur. Co. of America, 133 Cal.App.
4th 1319, 1326-27, 35 Cal.Rptr.3d 496 (2005). In
this case,
all the causes of actions in the FACC were raised
and denied by the Khuu v. Khuu court. (Millard’s
June 29, 2011 Order Re: Khuu v. Khuu (“Khuu”)
pages 6-8.)
Collateral Estoppel
The California Supreme Court says that “‘Collateral
estoppel precludes relitigation of issues argued and
decided in prior proceedings.’ (Lucido v. Superior
Court
(1990) 51 Cal.3d 335, 341 [272 Cal. Rptr. 767, 795
P.2d 1223].) The doctrine applies “only if several
threshold requirements are fulfilled.
First, the issue sought
to be precluded from relitigation must be identical to
that decided in a former proceeding.
Second, this issue must have been actually litigated
in the former proceeding.
Third, it must have been necessarily decided in the
former proceeding.
Fourth, the decision in the former proceeding
must be final and on the merits.
Finally, the party against whom preclusion is sought
must be the same as, or in privity with, the party to
the former proceeding.” (Pacific Lumber Co. v. State
Water Resources Control Bd. (2006) 37 Cal. 4th
921.)
Res judicata describes the preclusive effect of a final
judgment on the merits and prevents relitigation of
the same cause of action in a second suit between
the same
parties or parties in privity with them. Collateral
estoppel, or issue preclusion, “precludes relitigation
of issues argued and decided in prior proceedings.”
(Lucido
v. Superior Court (1990) 51 Cal.3d 335, 341.) While
the term “res judicata” has been used to encompass
both claim preclusion and issue preclusion, it is more
proper to use the term res judicata only to refer to
claim preclusion. While, as noted above, “‘the
doctrine of collateral estoppel is one aspect of the
concept of res
judicata. In modern usage, however, the two
terms have distinct meanings.’ (Lucido v.
Superior Court, supra, 51 Cal.3d at p. 341, fn. 3.)
A clear and predictable
res judicata doctrine promotes judicial
economy. A predictable doctrine of res judicata
benefits both the parties and the courts
because it “seeks to curtail multiple
litigation causing vexation and wasted effort
and expense in judicial administration.”
(Mycogen Corp. v. Monsanto Co., 28 Cal. 4th
888, 896 (2002).expense to
the parties and wasted effort and expense in
judicial administration.”
Because these doctrines limit future court actions, it
behooves a litigant to ensure that they raise all the
legal claims that they can in their original suit and
also include
all the necessary parties as defendants. Failure to
do so, could mean losing out on legitimate and
necessary relief
The concepts of res judicata and collateral estoppel
are very similar and easily confused since they both
stand for the basic principal that when a person
goes to court they should only have one bite at
the apple and they cannot re-litigate the same
issue over and over again.
The California Supreme Court states that “collateral
estoppel is a distinct aspect of res judicata. ‘The
doctrine of res judicata gives conclusive effect
to a former judgment in subsequent litigation
between the same parties involving the same
cause of action. A prior judgment for the
plaintiff results in a merger and supersedes the
new action by a right of action on the judgment.
A prior judgment for the defendant on the same
cause of action is a complete bar to the new action.
(4 Witkin, Cal. Procedure (2d ed. 1971) Judgment,
§§ 147–148, pp. 3292–3293.)
Collateral estoppel … involves a second action
between the same parties on a
different cause of action. The first action is not
a complete merger or bar, but operates as an
estoppel or conclusive adjudication as to such
issues in the second
action which were actually litigated and
determined in the first action. (citations
omitted.)’ (Rymer v. Hagler (1989) 211 Cal. App.
3d 1171.)” (Murray v. Alaska
Airlines, Inc. (2010) 50 Cal.4th 860.)
Res Judicata
Referring to claims preclusion, the California
Supreme Court has stated: “‘Res judicata’ describes
the preclusive effect of a final judgment on the
merits.” (Mycogen Corp. v. Monsanto Co., 28
Cal. 4th 888, 896 (2002).) It “prevents relitigation of
the same cause of action in a second suit between
the same parties or parties
in privity with them.” (Id. at p. 897.)
Under the doctrine, “all claims based on the same
cause of action must be decided in a single suit; if
not brought initially,
they may not be raised at a later date.” (Ibid.)
Additionally, the doctrine bars the filing of claims in a
second suit that are “based on the same cause of
action” as one asserted in a prior action if they are
both
premised on the same “primary right.” (Mycogen
Corp. v. Monsanto Co., supra, 28 Cal. 4th at 904
(emphasis added).) “The plaintiff ’s primary right is
the right
to be free from a particular injury. A cause of action
comprises the factors: (1) the plaintiff ’s primary right,
(2) the defendant’s corresponding primary duty, and
(3) the defendant’s wrongful act that breaches that
duty. (Federation of Hillside & Canyon Assns. v. City
of Los Angeles, 126 Cal. App.4th 1180, 1202 (2004);
Mycogen Corp. v. Monsanto Co., 28 Cal. 4th at 904-
906.)
To determine whether claim preclusion bars another
action or proceeding, courts look to whether the two
proceedings involve the same cause of action. (Alpha
Mechanical, Heating & Air Conditioning, Inc. v.
Travelers Cas. & Sur. Co. of America, 133 Cal.App.
4th 1319, 1326-27, 35 Cal.Rptr.3d 496 (2005). In
this case,
all the causes of actions in the FACC were raised
and denied by the Khuu v. Khuu court. (Millard’s
June 29, 2011 Order Re: Khuu v. Khuu (“Khuu”)
pages 6-8.)
Collateral Estoppel
The California Supreme Court says that “‘Collateral
estoppel precludes relitigation of issues argued and
decided in prior proceedings.’ (Lucido v. Superior
Court
(1990) 51 Cal.3d 335, 341 [272 Cal. Rptr. 767, 795
P.2d 1223].) The doctrine applies “only if several
threshold requirements are fulfilled.
First, the issue sought
to be precluded from relitigation must be identical to
that decided in a former proceeding.
Second, this issue must have been actually litigated
in the former proceeding.
Third, it must have been necessarily decided in the
former proceeding.
Fourth, the decision in the former proceeding
must be final and on the merits.
Finally, the party against whom preclusion is sought
must be the same as, or in privity with, the party to
the former proceeding.” (Pacific Lumber Co. v. State
Water Resources Control Bd. (2006) 37 Cal. 4th
921.)
Res judicata describes the preclusive effect of a final
judgment on the merits and prevents relitigation of
the same cause of action in a second suit between
the same
parties or parties in privity with them. Collateral
estoppel, or issue preclusion, “precludes relitigation
of issues argued and decided in prior proceedings.”
(Lucido
v. Superior Court (1990) 51 Cal.3d 335, 341.) While
the term “res judicata” has been used to encompass
both claim preclusion and issue preclusion, it is more
proper to use the term res judicata only to refer to
claim preclusion. While, as noted above, “‘the
doctrine of collateral estoppel is one aspect of the
concept of res
judicata. In modern usage, however, the two
terms have distinct meanings.’ (Lucido v.
Superior Court, supra, 51 Cal.3d at p. 341, fn. 3.)
A clear and predictable
res judicata doctrine promotes judicial
economy. A predictable doctrine of res judicata
benefits both the parties and the courts
because it “seeks to curtail multiple
litigation causing vexation and wasted effort
and expense in judicial administration.”
(Mycogen Corp. v. Monsanto Co., 28 Cal. 4th
888, 896 (2002).expense to
the parties and wasted effort and expense in
judicial administration.”
Because these doctrines limit future court actions, it
behooves a litigant to ensure that they raise all the
legal claims that they can in their original suit and
also include
all the necessary parties as defendants. Failure to
do so, could mean losing out on legitimate and
necessary relief