Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC296604, Robert L. Hess, Judge.
Akin Gump Strauss Hauer & Feld, Edward P. Lazarus, L. Rachel Helyar, Michael C. Small, Azra Hot; Lim, Ruger & Kim, Christopher Kim, Philip G. Grant, Lisa J. Yang and George Busu for Plaintiff and Appellant.
Willenken Wilson Loh & Lieb, Paul J. Loh and Jeffrey J. Lewis for Defendants and Respondents.
ARMSTRONG, Acting P. J.
Plaintiff and appellant DAS Corporation sued defendants and respondents Kyung Joon Kim (often referred to as "KJ Kim"), Erica Kim, and Bora Lee, for fraud, money had and received, and other causes of action. Respondents moved for judgment on the pleadings on the ground that res judicata and/or collateral estoppel barred DAS from proceeding on any of its claims. The trial court granted the motion and dismissed the complaint. We reverse the judgment. DAS is barred from proceeding on its fraud cause of action and on its other causes of action to the extent they are based on fraud. In all other respects, we find no bar.
Erica Kim is Kyung Kim's wife. Kyung Kim and Bora Lee are brother and sister.
Facts
The second amended complaint, the operative complaint here, brought causes of action for fraud, negligent misrepresentation, conversion, money had and received, unjust enrichment, breach of fiduciary duty, accounting, and RICO violations.
DAS also refers to a breach of contract cause of action. There was such a cause of action, but respondents were not named as defendants. In its reply brief, DAS argues that that is of no moment, because the other respondents are named. We can see no additional respondents. There were two additional defendants, BBK Capital Partners Limited and MAF Fund Limited, but both defaulted.
Factually, the complaint alleged that in early 2000, respondents approached DAS (a manufacturer) and solicited its investment in an investment fund called MAF. By December 2000, DAS had invested 19 billion Korean won (about $15.8 million) in MAF. The investments were made through an investment consulting and securities brokerage firm called BBK Capital Partners, which, like MAF, was controlled by respondents. Respondents made numerous false representations to induce DAS to make the investment, including the representation that MAF had sophisticated arbitrage trading techniques and had returned large profits in the past. DAS alleged that its funds were not invested, but were transferred to other entities controlled by respondents and were used for respondents' benefit.
DAS alleged that in April 2001, it learned that BBK had been investigated by Korean authorities and had lost its license. Pursuant to its investment agreements with BBK and Kim, which gave DAS the right to redeem at any time, DAS demanded its money back. Acting out of a base in Beverly Hills, respondents engaged in a scheme to frustrate DAS's attempts to recover its money. It received only two payments, in October and December 2002, totaling 5 billion Korean won.
The complaint also alleged that respondents wire transferred funds invested by DAS and others into accounts in the United States which they had opened in the names of various entities, many of them sham entities. Among other things, the complaint alleged that respondents used DAS's funds to obtain control of a Korean corporation called New Vision Capital, changed New Vision's name to Optional Ventures Korea, Inc., moved Optional's funds to the United States, and used those funds for themselves.
In April and May of 2004, while this case was pending, the United States filed civil forfeiture actions, later consolidated into one action, seeking forfeiture of various assets (bank accounts, houses, and cars) alleged to belong to respondents. The Government's theory was that the assets were property derived from wire fraud or money laundering or "an activity with respect to which the United States would be obliged . . . to extradite the alleged offender." (18 U.S.C. § 1956.) DAS filed answers to the complaints in forfeiture and a claim for constructive trust. Optional filed a similar constructive trust claim.
Both DAS and respondents have asked us to take judicial notice of various pleadings and orders in the forfeiture actions and of the Ninth Circuit's opinion filed October 3, 2008 (U.S. v. Real Property Located at 475 Martin Lane, Beverly Hills, CA (9th Cir. Oct. 3, 2008, No. 06-56158) ___F.3d___ [2008 WL 4445304]), on the government's appeal from District Court's dismissal of another forfeiture action. Those requests are granted. DAS's request that we notice a newspaper article concerning KJ Kim's extradition is denied, as is respondents' request that we notice a document memorializing the Seoul prosecutor's decision not to prosecute KJ Kim. Neither document is relevant to our decision here.
Respondents moved for summary judgment in the forfeiture action on two theories, that the Government could not prove a scheme to defraud or trace the proceeds allegedly embezzled to any of the defendant assets. In March 2007, the District Court granted the motion on both theories.
The District Court's opinion outlined the allegations of the forfeiture action: First, through BBK, KJ Kim and Bora Lee solicited investments in MAF from DAS and others. After BBK was shut down by the Korean government, only some of the investors were repaid. KJ Kim used investors' money to gain financial control of Optional, then, through the use of sham entities, used Optional's funds to purchase the defendant assets.
The District Court ruled that "neither the Government nor Claimants DAS or Optional have presented admissible evidence that could support a finding that Kim carried out the fraud and embezzlement scheme that the Government describes."
Respondents then moved for judgment on pleadings in this action, contending that principles of res judicata and collateral estoppel barred DAS from litigating the claims and issues raised in the complaint. The trial court granted the motion, finding that "this case is in essence a fraud action," and that the District Court's finding barred all of DAS's claims.
Relevant Legal Principles
"Full faith and credit must be given to a final order or judgment of a federal court. [Citations.] Such an order or judgment has the same effect in the courts of this state as it would have in a federal court." (Levy v. Cohen (1977) 19 Cal.3d 165, 172-173; Code Civ. Proc., § 1908, subd. (a)(2).) "California follows the rule that the preclusive effect of a prior judgment of a federal court is determined by federal law, at least where the prior judgment was on the basis of federal question jurisdiction." (Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442, 1452.)
As the parties recognize, the District Court's ruling on summary judgment in the consolidated forfeiture actions constituted a final judgment on the merits.
The ruling has since been affirmed by the Ninth Circuit.
"Res judicata, or claim preclusion, prevents the relitigation of a claim previously tried and decided. Collateral estoppel, or issue preclusion, bars the relitigation of issues actually adjudicated in previous litigation between the same parties. 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4402 (1981)." (Clark v. Bear Stearns & Co., Inc. (9th Cir. 1992) 966 F.2d 1318, 1320.) "Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. [Citation.] Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. [Citation.]" (Allen v. McCurry (1980) 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308.)
Where the facts are uncontested (as they are in this motion for judgment on the pleadings), the trial court's application of res judicata and collateral estoppel is reviewed de novo. (Roos v. Red (2005) 130 Cal.App.4th 870, 879; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801.)
In its reply brief, DAS makes arguments based on rulings in Optional's federal court lawsuit against respondents and others. DAS contends that Optional was permitted to proceed in that action after the forfeiture action was dismissed, thus establishing that claims like those before us here survive dismissal of the forfeiture action. In support of these arguments, DAS filed a request for judicial notice of orders and pleadings in the Optional action. Respondents opposed the request (it is perhaps inevitable that the opposition amounts to a sur-reply) and asked us to notice additional documents, arguing that they are a necessary supplement to the documents DAS asked us to notice. We deny both requests for judicial notice and pay no heed to the arguments. This situation illustrates the wisdom of the rule that "Points raised for the first time in a reply brief will not be considered." (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 320.)
We begin with DAS's argument that it was not a party to the forfeiture action, or in privity with a party (the Government) so that the forfeiture actions create no res judicata or collateral estoppel. We agree with the trial court that for purposes of the res judicata/collateral estoppel analysis, DAS was a party to the forfeiture actions.
DAS's argument is that it was not named as a party, did not intervene in the action, and had no ability to control the shape and direction of the litigation. DAS analogizes its position to that of a bank which is the victim of a robbery, and argues that like the bank in the robbery prosecution, it could not call witnesses or make ultimate strategic decisions.
DAS argues that "the power to control litigation is the hallmark of party status," but it relies on cases which do not so hold. In Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82 the question was privity, the doctrine which applies where the party to be bound did not participate in the earlier proceeding. (Citizens for Open Access etc. Tide, Inc. v. Seadrift Ass'n (1998) 60 Cal.App.4th 1053, 1070.) Valley Nat. Bank of Arizona v. A.E. Rouse & Co. (9th Cir. 1997) 121 F.3d 1332, 1337, cited with a "cf," holds only that the fact that a partner participated in the defense of his partnership, or could have done so, does not convert a judgment against the partnership into a judgment against the partner.
The trial court set out the evidence of DAS's participation in the forfeiture action, finding that DAS "filed an answer to the government's complaint, and it filed an affirmative claim to be entitled to the assets the government sought to have forfeited. DAS sought to modify the District Court's Scheduling Order binding the parties, first to be allowed to file a cross-claim against Optional Capital, Inc., and later in order to protect its ability to participate in the deposition of K.J. Kim. It weighed in on other party discovery issues. Finally, it submitted argument and evidence in opposition to the Kim parties' summary judgment motion." The trial court also noted DAS's appeal from a District Court order dismissing one of the forfeiture actions as untimely.
Our review of the record is in accord. DAS fully participated in the forfeiture action and in that action had a full and fair ability to litigate its fraud claims. Unlike the bank which is the victim of a robbery, it gathered and presented evidence, and made arguments. The District Court's order particularly notes a 300 page report from DAS's fraud expert, submitted at summary judgment in that action.
It is no doubt true that DAS could not make "ultimate strategic decisions" concerning the Government's case, but nothing in the record indicates that it was limited in its control of its own claim. We cannot see that DAS's lack of control over the Government's case means that it was not a party to the litigation in its own right. (U.S. v. Banco Intrenacional/Bital S.A. (C.D.Cal. 2000) 110 F.Supp.2d 1272, 1279 [judgment in Government's civil forfeiture action against Bital's funds precluded Government's civil penalty action against Bital; although Bital was not technically a party to the in rem action, the parties in successive in rem and in personam suits are the same in substance].)
Having decided that DAS was a party to the forfeiture action, we must now examine the two actions to determine whether the state court claims were or could have been litigated in the forfeiture action. DAS makes two arguments, that the fraud alleged in the forfeiture action was not the same as the fraud alleged in the state court, and that, in any event, its non-fraud claims were not and could not have been raised in the forfeiture action. We agree with the second contention, but not the first.
DAS's state court fraud claims and allegations
DAS's argument is that the Government's complaints in the forfeiture actions were based on respondents' take over of Optional and use of Optional's funds, and not the fraud through which respondents solicited DAS's investment. Thus, DAS argues, the fraud alleged in the second amended complaint was not part of the forfeiture action.
It is true that the factual allegations of the forfeiture complaints largely concern wire transfers from Optional's accounts in Korea to the United States, forged Nevada corporate charters presented to Korean authorities, forged United States passports, and securities accounts opened the names of sham entities, relevant to what DAS calls the "downstream" fraud concerning Optional. Later, though, the Government explicitly tied its case to the initial fraud. For instance, in its opposition to respondents' motion for summary judgment in the forfeiture action, the Government argued that respondents' fraudulent solicitation of DAS's investment in MAF was the first step in the fraudulent scheme.
The District Court's order makes it clear. When that court described the Government's case, it began by writing "The Government contends that these assets are subject to forfeiture on several grounds, each of them arising out of an allegedly fraudulent investment and embezzlement scheme run primarily by [KJ Kim]. The alleged fraud was perpetrated against two sets of victims: first, DAS Corporation and other investors in an investment company called [MAF] managed by KJ Kim at [BBK], and second, [Optional], in which some of the first victims' principal was invested and allegedly illegally withdrawn. The Government's theory of the alleged fraud scheme is as follows. [¶] First, while KJ Kim was working for BBK, he and his wife, Bora Lee, solicited investments for investment in MAF, an investment company run by KJ Kim at BBK. DAS Corporation . . . was one of those investors . . . ."
Further, DAS's claim in the forfeiture action was not limited to the Optional takeover. Instead, it wrote that its claim was based on "the facts alleged in its Second Amended Complaint [in this action], and as described in greater detail herein." Later, in response to a motion to dismiss, it reiterated facts concerning the initial fraud and attached the second amended complaint, writing that the complaint "provides greater detail and more facts regarding DAS's claims." In other pleadings, DAS wrote "this case . . . involves the use by the Kim claimants . . . of numerous real, shell and sham entities, both foreign and domestic, first to defraud DAS Corporation, and others, and then to launder the proceeds of that fraud. The fraud took place in Korea beginning in the year 2000 . . . ." (DAS's ex parte application for modification of scheduling order to permit further deposition of KJ Kim, emphasis added.)
The District Court concluded that "the record is simply lacking evidence that KJ Kim's conduct was fraudulent. There is evidence that DAS invested a substantial amount of money in BBK and MAF based on KJ Kim's meetings with DAS's president. However, the record is devoid of admissible evidence supporting the theory that KJ Kim obtained these investments in a fraudulent manner." The District Court's conclusion that "the Government -- and claimants Optional and DAS -- simply lack evidentiary support for the facts on which their theories rely" bars DAS from litigating fraud claims in this action.
DAS also makes arguments based on District Court rulings made after summary judgment was granted and the seized property ordered released.
The first such ruling was on Optional's motion to amend the judgment. Optional contended that return of the property before it had had an opportunity to litigate its constructive trust claim would be unjust. The District Court denied the motion, ruling that under the relevant statute (28 U.S.C. § 2465(a)(1)) "where the person from whom the property is seized establishes that the Government cannot forfeit the property, the competing claimants do not get to pursue their claims against the property." DAS reads this as a ruling that the District Court did not adjudicate Optional's (or, by extension, DAS's) claim, but only held that the claims were moot, given that the Government did not prove its claim.
The second such ruling was made on DAS's motion for a stay pending appeal. The District Court granted the motion, writing that "DAS contends that the final judgment ordering the release of the properties to the Kim Claimants deprived DAS of the opportunity to litigate its constructive trust claims to the property." The court then referenced the ruling discussed above, then wrote ". . . while the Court believes its reasoning is sound, the Court also recognizes that this is a relatively close question . . . [¶] The Ninth Circuit may determine that the claimants are entitled to assert their constructive trust claims despite the end of the Government's forfeiture action . . . ."
DAS argues that this ruling establishes that the District Court did not believe that it had adjudicated DAS's constructive trust claim, reasoning that if the District Court had so believed, it would not have granted the stay.
We are not persuaded that either ruling has the meaning DAS urges.
In its ruling on Optional's motion, the District Court relied on In re Matthews (4th Cir. 2005) 395 F.3d 477. In that case, after the Government voluntarily dismissed a civil forfeiture action, the District Court adjudicated competing claims of ownership of the seized asset. The Fourth Circuit reversed, finding that "Once the United States voluntarily dismissed its forfeiture action, all proceedings in the action were terminated, and the district court lacked the authority to issue further orders addressing the merits of the case. In particular, although the State and Matthews continued to assert ownership interests in the document, the district court no longer had authority to adjudicate those interests -- as it would have done had the forfeiture action gone forward." (Id. at p. 482.) The court also noted that there was authority to the contrary; U.S. v. $515,060.42 in U.S. Currency (6th Cir. 1998) 152 F.3d 491, 501, footnote 9 and U.S. v. 414 Kings Highway (2d Cir. 1997) 128 F.3d 125, 127.
The citation to Matthews establishes that the District Court did not believe that it could determine DAS's and Optional's competing claims to the seized assets, but was compelled to return those assets to respondents. The District Court did not say that it had not adjudicated DAS's fraud claim, on which the constructive trust was predicated. Instead, its opinion on summary judgment establishes that it did adjudicate that claim, and found that DAS had not proved fraud.
DAS's non-fraud claims
As we noted earlier, we cannot see that the forfeiture actions had a res judicata or collateral estoppel effect on DAS's non-fraud claims. It is obvious that DAS's non-fraud claims were not litigated in the forfeiture action. Nor could they have been. Civil forfeiture actions can only be based on violations of Title 18 of the United States Code (18 U.S.C. § 981) and Title 18 concerns "Crimes and Criminal Procedure."
The trial court found that all of the causes of action in DAS's state court complaint were based on fraud. Our conclusion is to the contrary. In addition to the fraud causes of action, DAS brought causes of action not based on fraud, or at least not entirely based on fraud. For instance, the cause of action for money had and received alleges that as of April 2001 (when DAS demanded its money back) respondents became indebted to DAS for 19 billion won. The cause of action for unjust enrichment and constructive trust is similar. The cause of action for breach of fiduciary duty alleges that "Defendants breached their fiduciary duty to DAS by, among other things, failing to be honest and truthful, failing to exercise reasonable diligence on DAS's behalf, and failing to disclose material facts. Without limiting the foregoing, Defendant KJ Kim relocated from Korea to Los Angeles, Defendants BBK and MAF ceased business operations, and Defendants failed to inform DAS of KJ Kim's relocation, failed to redeem DAS's investment and failed to communicate with DAS regarding the redemption or status of DAS's investment." The cause of action for negligent misrepresentation alleged that respondents made their false claims negligently. Like all the other causes of action, those causes of action incorporate the factual allegations of fraud. That does not mean that the causes of action are limited to fraud.
Disposition
The judgment is reversed. Each party to bear its own costs on appeal.
I concur: KRIEGLER, J.
MOSK, J., Concurring and Dissenting
I concur, except as to the conclusion that the fraud cause of action is precluded. I would reverse the judgment in its entirety.
In its federal forfeiture action, the Government alleged acts of mail and wire fraud and money laundering in violation of specific federal statutes. (18 U.S.C., §§ 1341, 1343 and 1956.) The Government alleged, in essence, that certain parties obtained control of a corporation that later became known as Optional Ventures, Korea, Inc. (Optional); through shell corporations, injected money into Optional; forged corporate charters in non-existent Nevada corporations; used forged passports; withdrew the monies from Optional and wired them to United States accounts; and used the money to purchase the assets that are the subject of the forfeiture action.
In the common law fraud claim in the instant case, DAS alleges it relied upon fraudulent misrepresentations to make investments with defendant or defendants. DAS specifically alleges that defendant KJ Kim made false representations about his expertise, the guaranty of returns, prior returns from investments, and adequacy of corporations, and that the investments would be fully redeemed within 30 days notice. Plaintiff’s claims were based, for the most part, on the facts that basically preceded whatever occurred with respect to Optional and the facts alleged in the forfeiture action. DAS alleges that the monies were invested in Optional and wired to accounts in the United States, but these allegations are not necessary to state the fraud claim. DAS filed a claim in the federal forfeiture action to establish its rights in the assets that are the subject of the forfeiture action. Its claims are based on its allegations in the state court action—the instant case.
Under the forfeiture statute, 18 U.S.C. section 983, the government filed the action, and a person may assert an interest in the property that is the subject of that forfeiture action. (18 U.S.C., § 983, subd. (a)(2)(A), 4(B).) The burden of proof is upon the Government to establish that the property is subject to forfeiture. (18 U.S.C., § 983, subd. (c)(1).)
The forfeiture action is not against any party—only against specific property. Thus, the forfeiture action does not contain the same cause of action as in this action. If a plaintiff prevails in a common law fraud claim, the plaintiff normally is entitled to damages—not specific property with which the plaintiff did not part.
The forfeiture action and the instant case involve different named parties. The defendants here are not named as parties in the forfeiture action. “Res judicata bars relitigation of the same cause of action,” and is not applicable between persons who were not parties or in privity with parties in the prior action. (Schwing, California Affirmative Defenses (2008 ed.) § 14:15, p. 795, § 14:20, p. 814 (Schwing).)
As to the privity requirement, the issue is one of control of the prosecution of the action. “The courts will look behind the face of the record to ascertain the true persons who had the right, power, and ability to control the action and actually did control it.” (Schwing, supra, § 14:23, p. 823.) Here, by statute, the Government that had the burden of proof, (18 U.S.C., § 983, subd. (c)(1)), and thus, it would seem, control of the action. Indeed, the federal judge, in dismissing the action, referred to the deficiencies in the Government’s case.
The issue to be collaterally determined in this action must have been actually litigated and necessarily dealt with in the forfeiture action. (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910.) As the court said in People v. Sims (1982) 32 Cal.3d 468, 484, “Traditionally, collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding ‘if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].’ (People v. Taylor, supra, 12 Cal.3d at p. 691.) [¶] It is implicit in this three-prong test that only issues actually litigated in the initial action may be precluded from the second proceeding under the collateral estoppel doctrine. (See Clark v. Lesher, supra, 46 Cal.2d at p. 880.) An issue is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined . . . . A determination may be based on a failure of . . . proof . . . .’ (Rest.2d, Judgments (1982) § 27, com. d, p. 255, italics added.)”
Res Judicata and collateral estoppel have distinct meanings. (Mycogen Corp. v. Monstanto Co. (2002) 28 Cal.4th 888, 896-897, fn. 7.)
In this case, the Government did not raise the DAS claims in its complaint. And DAS did not control the litigation. It is true that DAS submitted its claim in the federal forfeiture action. But a determination of that claim was not necessary because the Government had not established a right to a forfeiture. The determination of an issue in the first action must be “essential to the judgment.” (Rest.2d Judgments (1982) § 27, p. 250.) “If issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded.” (Id. at com. h, p. 258; Schwing, supra, § 15:6, p. 926; see Stanson v. Mott (1976) 17 Cal.3d 206, 212-213.)
The Ninth Circuit Court of Appeals held that “district courts retain jurisdiction to adjudicate competing claims to seized property even after the underlying civil forfeiture action has been dismissed.” (United States of America, et al. v. Real Property Located at 475 Martin Lane, Beverly Hills, California, et al. (2008) __ F.3d __ [2008 WL4445304 *8].) If the district court’s determination that DAS had not been defrauded was essential to its ruling, then DAS might be collaterally estopped to assert its fraud claim. But it appears that the district court only had to deal with wire transfer or money laundering claims.
It is true that the district court said that the record lacked evidence that KJ Kim committed fraud against DAS. But the court went on to state as follows: “Ultimately, the Government describes a very complex theory as to the operation of the fraudulent scheme. Although that theory verges on incoherence, it is the Government’s lack of admissible evidence that compels this Court to grant summary judgment. . . . Indeed, in granting summary judgment, the Court expresses no opinion as to whether KJ Kim engaged in the conduct alleged; the Court concludes only that the evidence is insufficient to create an issue of material fact requiring trial. Had the Government properly authenticated its evidence or submitted other evidence timely and consistent with the Court’s orders, it might have defeated the Kim Claimants’ motion. However, at this late juncture, after the Court already continued this motion for many months to allow the Government to solidify its case by taking the depositions in Korea, it is clear that these evidentiary shortcomings are insurmountable.” (Italics added.)
It certainly appears that the district judge focused on the Government’s failure to sustain its burden of proof by not submitting sufficient evidence. Thus, it is not at all clear that the district court focused the deficiencies in a showing of wire fraud and money laundering and on DAS’s claim or only on the wire fraud and money laundering claims. As noted, it also appears the district court’s opinion strongly suggests that DAS did not have control over the presentation. The Ninth Circuit in reversing the judgment in part stated that the district court retains jurisdiction to decide the competing claims to the property. It may be that DAS has a claim for fraud but no right in the specific property. What has been decided and what is left to be decided remains unclear. It should be recognized, “If anything is left to conjecture as to what was necessarily litigated and decided, then collateral estoppel cannot be applied.” (Schwing, supra, § 15:6, pp. 925-926; Eichler Homes, Inc. v. Anderson (1970) 9 Cal.App.3d 224, 234.)
In addition, DAS points to the federal court—the one that decided the forfeiture case—permitting Optional to proceed in an action after the forfeiture action was dismissed. DAS argues this suggests that the federal court did not intend its judgment against the Government to have any preclusive effect as against private claimants such as Optional and DAS. Although this was raised in appellant’s reply brief, the matter to which DAS refers did not take place until after appellant’s opening brief was filed. Both parties have invoked later opinions. Respondents were able to respond to the argument in their opposition to the Request for Judicial Notice and in their letter regarding the Ninth Circuit Court of Appeals opinions. Under these circumstances, the impact of subsequent proceedings should be considered. Extrinsic evidence may be admitted to show what issues were actually litigated. (Rest.2d Judgment, supra, § 27, com. f, p. 257.) Again, if there is any doubt as to what was decided, collateral estoppel should not be applied.
Accordingly, I do not believe the fraud claim, or any claim, in this action is barred by the doctrine of issue or claims preclusion. I would reverse the judgment.