Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. 37-2008-00076100- CU-PA-CTL, Ronald L. Styn, Judge.
BENKE, Acting P. J.
In this case the trial court correctly applied the doctrine of collateral estoppel and dismissed the plaintiff's personal injury action against defendants who had successfully obtained a judgment of dismissal in a closely-related action brought by plaintiff's mother and growing out of the same automobile accident in which plaintiff was injured. Importantly, plaintiff had been a party to the prior action, was represented at all times by the same attorney who represented her mother and, two weeks before trial in the earlier case, dismissed without prejudice the claims she is now asserting. Under these circumstances, where plaintiff was well aware of the prior action and indeed had asserted her claims in that action, plaintiff was in privity with her mother and bound by the judgment entered against her mother. Thus the trial court acted properly in sustaining defendants' demurrer without leave to amend and entering judgment in defendants favor.
FACTUAL AND PROCEDURAL BACKGROUND
"Because this case comes to us on a demurrer for failure to state a cause of action, we accept as true the well-pleaded allegations in plaintiffs' first amended complaint. ' "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' [Citation.] ' [A] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective." [Citation.]' " (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) Thus the following facts appear from the allegations of the complaint and from judicially noticeable sources.
On November 26, 2003, plaintiff and appellant Naomi Velez (Naomi) was riding in mini-van being driven by her mother Deanna Velez (Deanna). The mini-van collided with a car being driven by defendant and respondent Jody Peter and owned by defendant and respondent Alan Peter. At the time of the accident, Naomi was 14 years old.
On September 13, 2005, Deanna and Naomi, through a guardian ad litem, filed a personal injury action against the Peters. Naomi and Deanna alleged that the collision was caused by Jody Peter's negligence. On October 13, 2006, Naomi dismissed her claims without prejudice. Shortly thereafter, on October 31, 2006, Deanna's case went to trial and the jury returned a verdict finding Jody Peter was not negligent. A judgment on the verdict in favor of the Peters was entered on January 2, 2007.
On January 17, 2008, Naomi filed a second complaint against the Peters. She again alleged that Jody Peter's negligence was the cause of the collision in which she was injured. Naomi was represented in the second action by the same attorney who had represented her and her mother in the first action.
The Peters filed a demurrer to the complaint in which they argued the complaint was barred by the doctrine of collateral estoppel or in the alternative by the statute of limitations. The trial court, relying on the holding in Garcia v. Rehrig Internat., Inc. (2002) 99 Cal.App.4th 869, 877-878, found Naomi was in privity with her mother and the judgment against her mother therefore barred the second complaint. Accordingly, the trial court sustained the demurrer without leave to amend and entered judgment in favor of the Peters. Naomi filed a timely notice of appeal.
DISCUSSION
"A party will be collaterally estopped from relitigating an issue if '(1) the issue decided in a prior adjudication is identical with that presented in the action in question; and (2) there was a final judgment on the merits; and (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication. [Citation.] This requirement of identity of parties or privity is a requirement of due process of law. [Citation.]' Citation.] 'In the context of collateral estoppel, due process requires that the party to be estopped must have had an identity or community of interest with, and adequate representation by, the losing party in the first action as well as that the circumstances must have been such that the party to be estopped should reasonably have expected to be bound by the prior adjudication. [Citation.]' [Citations.]" (Garcia v. Rehrig Internat., Inc., supra, 99 Cal.App.4th at p. 877, quoting Clemmer v. Hartford Insurance Co., (1978) 22 Cal.3d 865, 874-875.) Among the interests served by application of collateral estoppel where there is no identity between parties but only an identity of interest: the need to protect against vexatious litigation. (See Lynch v. Glass (1975) 44 Cal.App.3d 943, 947; 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 457, p. 1113.)
In Garcia v. Rehrig Internat., Inc., the court confronted a situation which was remarkably similar, procedurally, to the record here. The plaintiff in Garcia v. Rehrig Internat., Inc., was a minor and in a prior proceeding he and his parents filed a negligence claim against the manufacturer of a shopping cart, from which the plaintiff had fallen and injured himself. Prior to trial in the earlier case the plaintiff's claims were dismissed without prejudice because the extent of the child's injuries was unknown. The parents' separate claims growing out of the emotional distress they experienced as a result of witnessing the fall were then heard by a jury which returned a defense verdict on all their claims. Following entry of judgment for the defendants, the minor filed a second action against the manufacturer in which he reasserted negligence, design defect and failure to warn theories. The second case went to trial and before the case was given to the jury, the defendant moved for a nonsuit on the grounds the second action was barred by the judgment in the first proceeding. The trial court denied the motion for nonsuit; again a jury returned a defense verdict. The trial court then granted the plaintiff's motion for a new trial. On appeal from the order granting a new trial, the Court of Appeal held the trial court had erred in failing to grant the manufacturer's motion for nonsuit. Relying on earlier cases in which the unsuccessful claims of family members had barred heirs and children from pursuing their own claims growing out of a single accident or incident, the court stated: " ' "The concept of privity 'has been expanded... to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is "sufficiently close" so as to justify the application of the doctrine of collateral estoppel.' [Citations.]" [Citation.]' " (Garcia v. Rehrig Internat., Inc., supra, 99 Cal.App.4th at p. 878.) The court concluded "the parents adequately represented the minor's interests in the prior action and the trial court erred in determining privity was absent." (Ibid.)
The court in Garcia v. Rehrig Internat., Inc., expressly disagreed with an earlier opinion, Kaiser Foundation Hospitals v. Superior Court (1967) 254 Cal.App.2d 327, 333-335 (Kaiser). In Kaiser a patient initially sued the hospital for medical malpractice and a jury returned a defense verdict. Thereafter the patient's minor daughter brought an action for wrongful death and the hospital argued the wrongful death action was barred by the verdict in the medical malpractice action. The court in Kaiser rejected the hospital's argument and found there was no privity between the mother and the daughter. (Id. at p. 333.) The court relied on the fact that the cause of action for wrongful death was separate and distinct from the deceased's personal injury causes of action. (Ibid.)
The court in Garcia v. Rehrig Internat., Inc., noted the Kaiser opinion had been criticized by other cases as representing an outdated notion of privity. (Garcia v. Rehrig Internat., Inc., supra, 99 Cal.App.4th at p. 878; see Brown v. Rahman (1991) 231 Cal.App.3d 1458, 1462-1463; Evans v. Celotex Corp. (1987) 194 Cal.App.3d 741, 745-747 (Evans v. Celotex); Aguilar v. Los Angeles County (1985) 751 F.2d 1089, 1093.) As in Kaiser, Evans v. Celotex involved heirs attempting to assert a wrongful death claim after a family member had lost a personal injury lawsuit and thereafter died. In rejecting the holding in Kaiser, the court in Evans v. Celotex stated: "Collateral estoppel may act as a bar to a subsequent litigation on the same set of facts even though different causes of action are involved. [Citations.] Collateral estoppel bars relitigation of the same issues; it does not require identity of legal theories or cause of action. If it did, there would be no end to litigation for injuries arising out of the same facts, as long as a party could offer another legal theory by which the same issue might be differently decided. [Citation.]
"We believe the court in Kaiser Foundation Hospitals, supra, 254 Cal.App.2d 327, erroneously equated the concept of privity with existence of the same cause of action. Privity is satisfied so long as the plaintiffs' legal interests are adequately represented in the prior action. Privity is not defeated because the parties raise a different theory or cause of action in support of their rights to recovery. For these reasons we decline to follow that decision." (Evans v. Celotex, supra, 194 Cal.App.3d at pp. 746-747.)
We agree with the courts in Garcia v. Rehrig Internat., Inc., supra, 99 Cal.App.4th at page 878, Brown v. Rahman, supra, 231 Cal.App.3d at pages 1462-1463; Evans v. Celotex, supra, 194 Cal.App.3d at pages 745-747, and Aguilar v. Los Angeles County, supra, 751 F.2d at page 1093, and reject the limitations on collateral estoppel employed by the court in Kaiser. Application of collateral estoppel does not require the party to be bound by a prior determination be the same party as appeared in the prior action, one in contractual privity with a party to the prior action, or one who was formally represented in the prior action. Rather, for purposes of applying collateral estoppel, we look to whether the party to be bound has an identity or community of interest with the losing party in the prior action, whether that interest was adequately represented by the losing party in the prior action, and whether circumstances suggest the party to be estopped should reasonably have expected to be bound by the prior adjudication. (Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d at pp. 874- 875; Garcia v. Rehrig Internat., Inc., supra, 99 Cal.App.4th at p. 877.)
Here, each of the pertinent factors indicates Naomi should be bound by the negligence determination embodied in the judgment against Deanna: Naomi and Deanna shared an identical interest in establishing the Peters were negligent. The fact Naomi has been represented at all times by the attorney who represented Deanna in the prior proceeding and counsel took the Deanna's case to a jury verdict eliminates any suggestion Naomi's and Deanna's common interest in establishing the Peters' negligence was not adequately prosecuted. Plainly, Naomi's participation in the prior action until shortly before trial gave her ample notice of that proceeding, the issues which would be determined in that case, and most importantly an opportunity to protect her interests. Given these circumstance Naomi should have expected that she would be bound by the prior adjudication.
Naomi's active participation in the prior litigation is of added importance, because, as we have noted, one of the interests application of collateral estoppel serves even when there is no identity of parties is the need to prevent vexatious litigation. (See Lynch v. Glass, supra, 44 Cal.App.3d at p. 947; 7 Witkin, Cal. Procedure, supra, Judgment § 457, p. 1113.) This interest is plainly implicated in Naomi's withdrawal shortly before trial in the prior action and her continued representation by the same attorney who represented both her and her mother in the earlier action.
The circumstances presented here are in marked contrast to those considered in Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 92-94 (Rodgers). In Rodgers the plaintiff had been injured by exposure to asbestos and was attempting to impose successor liability on the defendant. In two prior proceedings other victims of asbestos exposure, also represented by the plaintiff's attorney, had been unsuccessful in imposing successor liability. However, the plaintiff had not participated in any manner in the prior proceedings. His only connection to the earlier litigation was the fact that he too was injured by asbestos exposure he attributed to the defendant's predecessor in interest and was represented by the same attorney who represented the earlier litigants. In finding the attorney's representation of the earlier litigants was not sufficient to bind the plaintiff, the court stated: "The United States Supreme Court has held that litigants or those in privity with them who have 'never appeared in a prior action' 'may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and argument on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position.' [Citations.]" (Id. at p. 94.)
Here, the due process concerns which prevented application of collateral estoppel in Rodgers do not exist. Those due process concerns are entirely obviated by the fact that Naomi, like the plaintiff in Garcia v. Rehrig Internat., Inc., in fact fully participated in the prior proceeding and had the opportunity to protect her interests.
In sum, as in Garcia v. Rehrig Internat, Inc., Naomi's claims are barred by the judgment entered against her mother in the earlier action in which Naomi actively participated.
Judgment affirmed. Respondents to recover their costs of appeal.
WE CONCUR: HUFFMAN, J., McINTYRE, J.