SAMARA v. MATAR

Respondent’s Petition for Review

Cal.March 28, 2017

$240918 Supreme Court No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Rana Samara, SUPREME COURT Plaintiff and Appellant, FIL E MAR 2 8 2017 Vv. Jorge Navarrete Clerk Haitham Matar D.D.S. Petitioner, Respondent and Defendant. Deputy After a Decision Certified for Publication by the Court of Appeal Second Appellate District, Division Seven, Case No. B265752 LOS ANGELES SUPERIOR COURT — NORTH CENTRAL Case No. EC056720 The Honorable William D. Stewart, Judge PETITION FOR REVIEW Attorneysfor Petitioner,Respondent and Defendant Haitham Matar D.D.S.: Katherine M. Harwood, Bar No. 225202 Neil S. Tardiff, Bar No. 94350 Ford, Walker, Haggerty & Behar Ford, Walker, Haggerty & Behar One World Trade Center, 27" Floor P.O. Box 1446 Long Beach, CA 90831-2700 San Luis Obispo, CA 93406 Phone: (562) 983-2500 Phone: (805) 544-8100 Facsimile: (562) 983-2555 Facsimile: (805) 544-4381 kharwood@fwhb.com neil@tardifflaw.com Supreme Court No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Rana Samara, Plaintiff and Appellant, Vv. Haitham MatarD.D.S. Petitioner, Respondent and Defendant. After a Decision Certified for Publication by the Court of Appeal Second Appellate District, Division Seven, Case No. B265752 LOS ANGELES SUPERIOR COURT — NORTH CENTRAL Case No. EC056720 The Honorable William D. Stewart, Judge PETITION FOR REVIEW Attorneysfor Petitioner, Respondent and Defendant Haitham Matar D.D.S.: Katherine M. Harwood, Bar No. 225202 Neil S. Tardiff, Bar No. 94350 Ford, Walker, Haggerty & Behar Ford, Walker, Haggerty & Behar One World Trade Center, 27" Floor P.O. Box 1446 Long Beach, CA 90831-2700 San Luis Obispo, CA 93406 Phone: (562) 983-2500 Phone:(805) 544-8100 Facsimile: (562) 983-2555 Facsimile: (805) 544-4381 kharwood@fwhb.com neil@tardifflaw.com TABLE OF CONTENTS Description Page No. TABLE OF AUTHORITIESoo.eccceceteeeseeeeecsaeeeeeeeeserseeseeeneeeees 4-6 I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ounce cecccccecseesesecseceeesseeecensecseeeessecssecasereessessueesseesessesessnessees 7 Il. INTRODUCTION AND REASONS WHY REVIEW IS NECESSARYocceeceesetseesseeseeeecenseseserecenesaeeeeeneesaeeeasenseateaeeneess 10 THT. ARGUMENT|...cesecseeeeceeceeeseeeeeseeseeseesneesaecneesneeesateneens 16 A. CLAIM PRECLUSION AND/OR ISSUE PRECLUSION BARS PLAINTIFF’S ACTION AGAINST PETITIONER AND REVIEW SHOULD BE GRANTED TO REAFFIRM THE VIABILITY OF SKIDMORE...eeeccecceesecetseeeeteeenes 16 1. Separate Lawsuits are not required for Principles of Claim Preclusion or Issue Preclusion to Apply...........::cssccsssecessseeesees 16 2. Skidmoreisstill the law, makes good judicial sense even after being on the books for 150 years because it supports the public policies favoring Claim and Issue Preclusion and should be affirmed by this Court to clear up the confusion caused by the decisions in Butcher, Zevnik II and Newport Beach TD eceeecceccceececesseeeeeenscescenseecaecs ceusessessesaueeaeeseaeeeneeeseateeeeresseeeas 18 B. ARTICLE VI, SECTION 14 DOES NOT MANDATE THAT THE COURT OF APPEAL ADDRESS EVERY ISSUE BEFOREIT IN WRITING FORIT TO BE CONSIDERED ON THE MERITS 0...eeeec cceceseeeeneeeneeeaeeeseeessseeeessseesesensens 29 TABLE OF CONTENTS(Continued) Description Page No. C. THE COURT OF APPEAL SHOULD HAVE GRANTED PETITIONER LEAVE TO FILE SUPPLEMENTAL BRIEFING PURSUANT TO GOVERNMENTCODE, SECTION 68081...eee eseeeeeeceseessneeeeceecsesssseeeeseeeseneees 31 D. IF THE COURT OF APPEAL DECISION REGARDING THE ASSERTION OF A SECOND CAUSE OF ACTION FOR POST-SURGICAL ACTS OR OMISSIONS OF PETITIONER, IS CORRECT, IT DID NOT HAVE JURISDICTION TO ISSUE THEIR PUBLISHED OPINION BECAUSE THE TRIAL COURT ORDER WASNOT AN APPEALABLE ORDER BECAUSEIT DID NOT DISPOSE OF ALL CAUSESOF ACTION...ceeseeceeeeeeseeereeneeeeees 33 TV. CONCLUSION ooo.eecceeceneeeseeeesaneeeesesaneesessaeeseserenesenteeteas 34 CERTIFICATE OF WORD COUNT....eeeceecceeeeeteeeeseeneettereees 35 COURT OF APPEAL PUBLISHED OPINION............APP1 — APP21 PROOFOF SERVICE...eee eeeeesessecceseeeeseeeeeseeesaeeeeaeceseeeeeearesaeeens 36 TABLE OF AUTHORITIES CASES Case Page No. Aguilar yv. Atlantic Richfield Co. (2001) 25 Cal.4™ 826,858 .....cccccccsescsesescscsesesescseseseetseetsesseeees 18 Angell v. Superior Court (1999) 73 Cal.App.4th 697 ooo... cceccceececceseeesseceeeetersesseeseeeaaee 33 Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450... eee cccccessseseceeeceseeeseeceneeeneeeeseens 21,26,27 Ball v. Rodgers (1960) 187 Cal. App. 2d 442, 448occecceeseeeetseneeseenseees 17 BankofAmerica v. McLaughlin etc. Co. (1940) 40 Cal.App.2d 620, 628-629 0...eee 8,19,21,26 Brinton v. Bankers Pension Servs. (1999) 76 Cal.App.4th 550, 556.0... cccccccsscssseceeessseeseeesseseees 16 Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442.0... eececssceesceeeneeeseees Passim Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622,628 0.0ecccccetecesteeteeeeeenee 16,17 DiRuzza v. County ofTehama (2003) 323 F.3d 1147oecceeceseeeneeseneeeeeeenaes 7,8,19,21,29 Founding Members ofthe Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal-App.4? 944 ooo ccccccesececseeeestseseenens 24,25,27 Freeman v. Churchill (1947) 30 Cal.2d 453, 462.000... ccccccccccccsenesseseesstseesessenens 17 TABLE OF AUTHORITIES (Continued) CASES Case Page No. Hawkins v. Sun Trust Bank (2016) 246 Cal.App.4™ 1387, 1392.....cccccccesssesssessseeseseeeens 17 Justus v. Atchison (1977) 19 Cal.3d 546, 567-568 ooo... eecesceesseeseseeeesecesseesseeens 18 Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 fi0.3 oeecccecceeseeceteeeteessseeeseeees 17 Markoffv. N.Y. Life Ins. Co. (1976) 530 F.2d 841, 842 ooocsccesetecesteeeseerteeeseeseeesseeens 21 Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425,430... ceeeeesceessseeeseeeseessessseeseens 18 Newport Beach Country Club, Inc. v. Founding Members ofNewport Beach Country Club (2006) 140 Cal App.4th 1120...eccsceeeeseesseeesseenees Passim People v. Skidmore (1865) 27 Cal. 287 o.oo cecccccccccsscescessceeeceesseecessseessssesaeenaess Passim Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4™ 82, 88-89 ..occcccccsccsessesesseesesesees 17,27 Samara vs. Matar (2017) 8 Cal.App.5" 796 ....cceccccccsccsssscssessssecsssereesesesens 7,13,30 Tomkowv. Barton. (9th Cir. Jan. 5, 2017, BAP No. CC-16-1075) = F.3d [2017 Bankr. LEXIS 31] oo.ceccccccssecesseseenseseeseeeeeeenseeesseseessseeseessseeesevessas 8 Vandenburg v. Superior Court (1999) 21 Cal.4th 815, 828-829 oooececeseeeteesetteteseeseseees 16 TABLE OF AUTHORITIES (Continued) CASES Case Page No. Zevnik v. Superior Court (2008) 159 Cal.App.4th 76........cccccccsscccceesssteeesssteeesetaneeees Passim STATUTES Statute Page No. California Constitution Article VI, section 14.00.00... cccccccccceeessssssseeeececcsessesssseeseunauaanasPassim Code ofCivil Procedure SeCtON 166 oe. ee eeecsesecessceceesceceeeeeeseeseceseecceeecseseceeaeestsseesseeeeeaeeeses 23 Section 904.1 (a)(1)ces eeeccecessecesseeesseeseeceseecaceeeeeseeseaeeesseeeeseeessaneesaes 18 Government Code Section 68081 oo. eeeseseceseccsseccssereeeesecseeseseacecssneerseeenseceneerss 9,10,31,32 Other California's Confusing Collateral Estoppel (Issue Preclusion) Doctrine, 35 San Diego L. Rev. 509 oo. eecccccccceesseeeeessnseessnseeeesseeee 34 California's Unpredictable Res Judicata (Claim Preclusion) Doctrine, 35 San Diego L. Rev. 55... eee ecceseeceeeseteeeseneesseeeeenesseeenteeteeeeeeseeess 34 Restatement SecondofJudgments SeCtiOn 27 oo. cceeeseeeeecccccccceccuccececccevseeeececececuececaseccensuseecessasaencesetaas 26 I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW Pursuant to California Rules of Court, Rule 8.500, Petitioner, Respondent and Defendant, HAITHAM MATARD.D.S. (“Petitioner”) hereby seeks review by this Court of the published opinion of the Second District Court of Appeal, Case Number B265752 attached hereto as Appendix | on the followingissues: 1. Whena trial court grants a motion for summary judgment and enters judgmentagainsta plaintiff in a professional negligence case against a surgical dentist on the groundthat the surgical dentist did not cause plaintiffs injuries and the action as to that surgical dentist was barred bythestatute of limitations, which, even though the Court of Appeal did not address the causation issue becauseit did not need to do so, wasaffirmed on appeal, is it a bar to plaintiffs claims against the surgical dentist’s alleged principal in the same lawsuit, whoseliability is derivative of the surgical dentist on an agency theory, on the groundsofres judicata (claim preclusion) and/orcollateral estoppel (issue preclusion)? Answering this question in the negative as the Second District Court of Appeal did in the attached published opinion’, required the Court of Appeal to refuse to follow this Court’s decision in People v. Skidmore (1865) 27 Cal. 287 (“Skidmore”) whichis still good law and has never been overruled. (See DiRuzza v. County ofTehama ' Samara vs. Matar (2017) 8 Cal.App.5" 796 (“Samara IT’”).) 7 (2003) 323 F.3d 1147 at 1153; Tomkow v. Barton (9th Cir. Jan. 5, 2017, BAP No. CC-16-1075) — F.3d (2017 Bankr. LEXIS 31}; Bank ofAmerica v. McLaughlin etc. Co. (1940) 40 Cal.App.2d 620, 628-629 (“McLaughlin’).) Several lower appellate courts have refused to follow Skidmore claimingitis outdated and has been impliedly overruled by this Court in light of this Court’s apparent approval of the Second Restatement of Judgments causing confusion and lack of uniformity in this * “California case law addressing this question is sparse. The earliest of the relevant cases, a California Supreme Court case decided in 1865 [Skidmore], supports the conclusion that_an appellate court's affirmance for any reason implicitly ratifies all reasoning given in the court below. To be sure, a nebulous exception to the rule and a recent California appellate decision cut against the timeworn precedent and may counsel in favor of more selective application of collateral estoppel principles. In the end, however, we conclude that the 1865 decision is controlling. The principles enunciated in that opinion have been questioned by a lower appellate court, but we find no opinions from the highest California court undermining the authority of its early holding.” 3 Here, the California Supreme Court has neither overruled Skidmore nor adopted the modern rule announcedin Butcher, Newport Beach, and Zevnik. In the absence of a decision by the California Supreme Court contrary to the Skidmore rule, we remain bound by DiRuzza. In Flying J, the district court arrived at the same conclusion,stating that: “Because the California Supreme Court's decision in Skidmore and the Ninth Circuit's decision in DiRuzza are binding law ofthe state and Ninth Circuit, respectively, and a federal trial court does not have the authority to change the state law of California even if a Supreme Court decisionis criticized and not followed by more recent intermediate California appellate decisions, see Butcher, Newport Beach, and Zevnik, the rule of Skidmore applies.” 2008 U.S. Dist. LEXIS 26243. We note that the Ninth Circuit affirmed the district court in Flying Jin 2009, although its memorandum decision does not refer to the DiRuzza/Skidmoreissue. See 351 Fed. Appx. 236. 8 e e important area of the law. See Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442 (“Butcher’); Newport Beach Country Club, Inc. v. Founding Members ofNewport Beach Country Club (2006) 140 Cal.App.4th 1120, 1132 (“Newport Beach II”); Zevnik v. Superior Court, (2008) 159 Cal App4th 76 (“Zevnik IT’) . Does Article VI, section 14 of the California Constitution, require the Court of Appeal to address in writing their reasons for affirming a judgmentas to every ground asserted on appeal in order to give finality as to that ground? The Court of Appeal has concluded that Skidmore is no longer viable because otherwise Article VI, section 14 would require appellate courts to addressall issues on appeal even if not necessary to affirming the judgment. Petitioner contends Article VI, section 14 gives the appellate courts discretion to address only those issues in writing necessary to affirming the judgmentandstill have the judgmentaffirmed on the merits on all grounds supporting the trial court’s entry ofjudgment. . Did the Court of Appeal lose jurisdiction to issue its opinion onceit determinedthat the trial court’s granting of summary judgment was not an appealable order? The Court of Appeal held the trial court committed error by entering judgment when the ruling did not dispose ofall causes of action. If this is the case, there did not exist an appealable order and the Court of Appeal did not have jurisdiction to issue its opinion. . Should the Court of Appeal have granted Petitioner leaveto file Supplemental Briefing pursuant to Government Code,section 9 68081 as to the Court of Appeal decision that res judicata did not apply because there was only one action and applying claim preclusion as a bar would besplitting a cause of action? The Court of Appeal reversed the judgment on the groundsthere was not a second separate action, that the cause of action against the agent and principal cannotbe split and the Defendantfailed to seek summary adjudication as to the alleged active negligence of Petitioner. The Plaintiff on appeal never asserted these grounds and thus waived them and they were neverbriefed on either side. Government Code,section 68081 dictates that Petitioner should have been given leaveto brief these issues if they were not waived by Appellant. Il. INTRODUCTION AND REASONS WHY REVIEW IS NECESSARY Plaintiff, Rana Samara, (Plaintiff), filed a dental malpractice claim in one single action against two dentists, Defendant Stephen Nahigian DDS (Nahigian) and Petitioner in Los Angeles Superior Court, Case No. EC056720, the Honorable William D. Stewart, Judge Presiding. The gravamenofthe Complaint was that Nahigian negligently performedoral surgery while he was in the course and scope of an agency relationship with Petitioner causing injury to Plaintiff. (1CT:65-73) Nahigian moved for summary judgmenton the groundsthe action wasbarred bythe statute of limitations, that he did not fall below the standard of care of an oral surgeon and hisacts or omissions did not cause Plaintiffs alleged injuries. The trial court granted summary judgment on the groundsthat the action was barred by the statute of limitations and that his acts or omissions did not 10 cause Plaintiff's alleged injuries. Judgment was entered accordingly in favor of Nahigian. (3CT:501-509) Plaintiff appealed the Nahigian Judgment to the Second District Court of Appeal, Division Seven, Case No. 248553. On appeal Plaintiff conceded the action against Nahigian was barred by the statute of limitations but arguedthetrial court committed error whenit ruled that the acts or omissions of Nahigian did not cause Plaintiffs alleged injuries. The Court of Appeal held that because Plaintiff conceded the action wasbarred bythestatute of limitations, it was unnecessary to addressthe causation ruling and affirmed the judgment by wayof an unpublished opinion. (See Samara y. Estate ofStephen Nahigian D.D.S. (Nov. 10, 2014, B248553) [nonpub. opn.] (Samara [).) A remittitur was issued affirming the judgmentin favor ofNahigian. (2CT:358) After the Nahigian Judgment becamefinal, Petitioner moved for summary judgment on the groundsthat the Nahigian judgmentand/or issues decided therein barred the action against Petitioner, that Petitioner did not fall below the standard of care and that the acts or omissionsof Petitioner did not cause Plaintiff's injuries because he wasnotinvolved in the surgery. ((1CT:9-10 (Notice of Motion); 1CT:11-25 (Memorandum of Points and Authorities); 1CT:26-38 (Separate Statement of Undisputed Material Facts); 1CT:39-190, 2CT:191-346 (Evidence in Support of Motion for Summary Judgment - Declaration of Barton Kubelka DDS (1CT:43-48); Declaration of Katherine Harwood (1CT:50-52); Declaration of Bach Le, DDS, MD (1CT:54-58); Judgment in favor of Defendant Nahigian (1CT:60- 1] 63); First Amended Complaint (1CT:65-73); Plaintiff's Deposition Excerpts Vol. 1 (1CT:75-115); Plaintiff's Deposition Excerpts Vol. 2 (1CT:117-130); Defendant Matar’s Deposition Excerpts (1CT:132-151); Defendant Nahaigian’s Deposition Excerpts (1CT:153-178); Defendant Matar’s dental records (1CT:180-190, 2CT:191-204); Monty Wilson DDS Dental Records (2CT:206-225) Rivera Family Dental Records (2CT:227- 246); Raffi Mesrobian MD medical records (2CT:248-263) Douglas Daws DDSdental records (2CT:265-289); Edith Gevorkian DDSdental records (2CT:291-322); Hillside Dental Group dental records (2CT:324-345).) Plaintiff opposed the motion arguing res judicata or collateral estoppel did not apply because the Court ofAppeal refused to address the causation issue and therefore there was not a judgment on the merits in favor of Nahigian andthat there existed a triable issue of fact as to whether Nahigian caused Plaintiffs injuries. (2CT:360-380; 3CT:381-513; Memorandum of Points and Authorities (2CT:360-380); Response to Separate Statement of Undisputed Material Facts (3CT:381- 396); Plaintiff’s Supplemental Separate Statement of Undisputed Material Facts (3CT:397-405) ; Declaration of Alexis Galindo and Evidence in Opposition (3CT:406-511 - Declaration of Gregory Doumanian DDS (3CT:408-413); Plaintiff's Deposition Excerpts (3CT:414-447); Defendant Nahigian Deposition Excerpts (3CT:448-476); Defendant Matar Deposition Excerpts (3CT:477- 496); Court of Appeal Opinion in Samara I — B248553 (3CT:497- 500); Trial Court’s Ruling on First Summary Judgment Motion (3CT:501-509); Excerpt of Defendant Matar Dental Record 12 (3CT:510); Request for Judicial Notice (3CT:512-513).) Thetrial court granted summary judgmentin favor of Petitioner on the groundsthat the Plaintiff was barred from asserting liability against Petitioner under the doctrine of res judicata, joint venture principles and that there did not exist a triable issue of fact as to whether Petitioner caused Plaintiff's alleged injuries. (3CT:537- 549) Judgment wasentered in favor of Petitioner. (3CT:537-551) Plaintiff appealed Petitioner’s Judgment to the Second District Court of Appeal, Division Seven, Case No. B265752. Plaintiff's sole argument on appeal wasthat issue and claim preclusion principles do not apply to the case because Skidmore has been impliedly overruled as set forth in Zevnik IT and Newport Beach IT and the Restatement of Judgments 2nd and Petitioner’s Judgment should be reversed. In a published opinion, the Court of Appealreversedthe trial court’s granting of summary judgment on the grounds: 1) res judicata (claim preclusion) does not apply becauseits application would result in the splitting of a cause of action against Nahigian and Petitioner; 2) collateral estoppel (issue preclusion) does not apply becausethetrial court’s finding that Nahigian did not cause Plaintiffs injuries was not determined in Samara I because the Court of Appeal elected not to address the issue; and 3) because Petitioner did not bring a motion for summary adjudication as to a separate cause of action for post- surgical acts of Petitioner, the trial court improperly granted the motion as to post-surgical acts or omissions of Petitioner. (Samara vs. Matar (2017) 8 Cal.App.5"" 796 (“Samara II’”’).) 13 Petitioner brought a Petition for Rehearing requesting leave to file supplemental briefing as to the Court of Appeal rulings regarding splitting a cause of action and the necessity for two separate actions for issue preclusion to apply since Plaintiff never asserted any of these groundsin any ofhis briefs and these issues were neverbriefed. Petitioner also requested the Court of Appeal to reconsiderits ruling regarding splitting a cause of action and address the real issue whichis the viability of Skidmore. Petitioner also asserted that if the Court ofAppeal treated the post-surgical acts as a separate cause of action requiring a motion for summary adjudication, then the trial court’s granting of a summary judgment wasnot an appealable order becauseit did not dispose ofall causes of action and thus the Court of Appeal did not have jurisdiction to issue its published opinion. ThePetition was summarily denied. The Court of Appeal concedesthat if Skidmorestill is viable, res judicata would apply if Plaintiff had filed a separate action against Petitioner. The Court ofAppeal points out that several appellate courts have refused to follow Skidmore but claimsit did not need to address the issue by interpreting Skidmore as applying to claim preclusion only and not issue preclusion. Federal Courts continue to follow Skidmore in diversity cases and Bankruptcy cases where state law applies. Petitioner contendsres judicata does not require two separate lawsuits against Nahigian andPetitioner for the principle to apply as the Court of Appeal held. Such a rule makes no judicial sense and goes completely against the public policy behind claim 14 preclusion and issue preclusion whichis to promote judicial economy and avoidrelitigation of matters already adjudicated. This Court should address the viability of Skidmore and the conflicting state and federal appellate cases to bring uniformity to the rules of claim preclusion andissue preclusion. Review is necessary to secure uniformity of decisions between this Court’s decision in Skidmore (and the appellate court’s following Skidmore) on the one hand, which holdsthat whena trial court enters judgmenton alternative grounds both sufficient to uphold a judgment and the appellate court only addresses one of the grounds but affirms the judgment,it is considered affirmed on all grounds decided bythetrial court, with the cases that refuse to follow Skidmore, on the other hand. Another reason for review is because the Court of Appeal in this case and in Newport Beach II assert, without any authority, that in order for an issue to be decided on the merits on appeal, pursuant to Article VI, section 14 of the California Constitution, the Court of Appeal must addressthat issue in writing. This Court accepting review to address the mandates of Article VI, section 14 could help resolve the conflict in the claim and issue preclusion cases and would promote judicial economyin a significant manner. Petitioner contends Article VI, section 14 does not mandate that the lower appellate courts, and this Court for that matter, address every issue asserted on appeal for the judgmentto be on the merits. (Skidmoreat Page 294) 15 Il. ARGUMENT A. CLAIM PRECLUSION AND/OR ISSUE PRECLUSION BARS PLAINTIFF’S ACTION AGAINST PETITIONER AND REVIEW SHOULD BE GRANTED TO REAFFIRM THE VIABILITY OF SKIDMORE 1. Separate Lawsuits are not required for Principles of Claim Preclusion or Issue Preclusion to Apply The Court of Appeal held that Claim Preclusion and Issue Preclusion do not apply because separate lawsuits were notfiled and applying preclusion principles in this case would be splitting a cause of action. There is no case authority for the proposition that separate lawsuits are needed for claim preclusion or issue preclusion to apply. Becausethe gravamenofPlaintiff’s complaint is that the liability of Petitioner is derivative of Defendant Nahigian and because all of Plaintiff's claims against Defendant Nahigian were previously litigated and resulted in a final judgment in favor of Defendant Nahigian and are nowfinal, the trial court ruled that res judicata principles preclude Plaintiffs claims against Petitioner. (3CT:543- 547) This was a correct decision. (Skidmore; Columbus Line, Inc.v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622,628 (“Columbus Line’’) (elements of res judicata); Brinton v. Bankers Pension Servs. (1999) 76 Cal.App.4th 550, 556 (precludeslitigation of certain matters resolved in a prior proceeding); Vandenburg v. Superior Court (1999) 21 Cal.4th 815, 828-829). “The doctrine of res judicata provides that a final judgment on the merits bars the parties or those in privity with them from litigating 16 R A B E h g , S t e g S e e the same cause of action in a subsequent proceeding and collaterally estops parties or those in privity with them from litigating in a subsequent proceeding on a different cause of action any issue actually litigated and determined in the formerproceeding. (Citations. Emphasis added.) The application of the doctrine in a given case depends upon an affirmative answerto three questions:(1) Wasthe issue decided in the prior adjudication identical with the one presented in the action in question? (2) Wasthere a valid andfinal judgmenton the merits? (3) Was the party against whom theplea is asserted a party or in privity with a party to the prior adjudication? (Citations)” (Columbus Lines, 120 Cal.App.3d 622,628) The doctrine of res judicata, of which collateral estoppelis a part, encompassesboth claim preclusion andissue preclusion. The elements of collateral estoppel are essentially the sameas res judicata but the principle is limited to issue preclusion and not claim preclusion. (Hawkins v. Sun Trust Bank (2016) 246 Cal.App.4" 1387, 1392; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 fn.3) An issue, however, must have been previously “adjudicated”in order to be given preclusive effect. What has been adjudicatedis to be determined not from the opinion rendered but from a consideration of the judgmentactually entered in reference to the issues presented for decision. (Ball v. Rodgers (1960) 187 Cal. App. 2d 442, 448). There is no requirementthat the “former proceeding”be in a different lawsuit. A summary judgmentin favor of a party defendant where multiple defendants are named in a lawsuit is considered to be a separate trial on the merits as between that party Defendant and the Plaintiff. (Freeman v. Churchill (1947) 30 Cal.2d 453, 462) The 17 ruling on Nahigian’s summary judgment motion carried with it a right to a motion for newtrial by the Plaintiff (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4" 826,858) and wastreated as a separate appealable order. (Code of Civil Procedure, section 904.1(a)(1); Justus v. Atchison (1977) 19 Cal.3d 546, 567-568; Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425,430). In the instant case, the motion for summary judgment by Nahigian was a former proceeding, resulting in a separate judgment against Plaintiff which wasseparately appealable and thus clearly a “former proceeding”for purposesof claim or issue preclusion. 2. Skidmoreis still the law, makes good judicial sense even after being on the books for 150 years because it supports the public policies favoring Claim and Issue Preclusion and should be affirmed by this Court to clear up the confusion caused by the decisions in Butcher, Zevnik IT and Newport Beach Il. The policy behind claim preclusion and issue preclusion is to preventrelitigation of the same claim orissue and encourage judicial economy. The key is whether the Plaintiff had a fair opportunity to assert her claim or the issues being asserted in the former proceeding. In the instant case, the Plaintiff had every opportunity to oppose the issues in Nahigian’s motion for summary judgment whichshe did and did not prevail. She elected not to bring a motion for newtrial which she had every right to do. She did nothingto set aside the trial court’s ruling after the remittitur was issued. Unfortunately for Plaintiff, she failed to file her claim against Nahigian in a timely mannerthus forcing the Court of Appeal not to address the causation issue. 18 However, it makes no judicial sense to give Plaintiff a second opportunity to relitigate the same claim or same issues she had already litigated in front of the same judge merely becauseshefailed tofile a timely claim against Nahigian and the Court of Appeal elected not to address the causation issue. Zevnik II and Newport Beach IT are distinguishable or incorrectly decided because they refused to follow precedent. (People v. Skidmore (1865) 27 Cal. 287 (“Skidmore”); Bank ofAmerica v. McLaughlin etc. Co. (1940) 40 Cal.App.2d 620, 628-629 (“McLaughlin”); DiRuzza v. County ofTehama (2003) 323 F.3d 1147, 1153 (“DiRuzza’’) In Skidmore, the Plaintiff in the first action sued Defendants on a recognizance alleging various equitable and legal claims. The matter wasreferred to a referee to decide all legal and factual issues. The referee found in favor of the Defendants on all claims. One ofthe defenses was misjoinder. On appeal to the California Supreme Court in the first action, the Supreme Court addressed only the misjoinder issue and affirmed the judgment. In the secondaction, the Plaintiff attempted to remedy procedurally the misjoinder problemsandfiled the same claims against the defendants. The Defendants argued the first action wasres judicata as to all issues embraced within the complaint at the trial level but did not prevail. On appeal, the California Supreme Court‘ reversed ruling that even thoughit had addressed only the misjoinderissue in the first appeal, it had ‘Interesting from a historical standpoint, the Supreme Court panel in Skidmore I] was a completely different Supreme Court panel than in Skidmore I. “affirmed the judgment”in full and since the issues not addressed in the first appeal were fully litigated, res judicata principles barred Plaintiff's second action. The Court stated: The judgment below wasnot reversed, either in whole or in part, by the Supreme Court, nor wasit modified in any particular; andit follows, ifthe Court dealt with the judgmentatall, it must have affirmed it to the whole extent of its terms. But the nature and scope of the Court's final action is clearly indicated by the words "judgmentaffirmed," as they occur in the published report of the case. (17 Cal. 260 at 261 -Skidmore I) We have examined the record, now remainingin this Court, and find an unqualified entry to the effect that the judgment wasaffirmed. The Court, in examining the judgment in connection with the errors assigned, foundthat there was at least one ground upon whichthe judgment could be justified, and therefore very properly refrained from considering it in connection with the other errors. But the affirmance, still, was an affirmance to the whole extent of the legal effect of the judgment at the time whenit was entered in the court below. The Supreme Court found no error in the record, and therefore not only allowedit to stand, but affirmed it as an entirety, and by direct expression. (/d at 292-293) 20 Skidmore1s still good law and has not been reversedby this Court and must be followed by lower appellate courts, otherwise they exceed their jurisdiction. (DiRuzza v. County ofTehama, supra, 323 F.3d 1147, 1153; Auto Equity Sales vy. Superior Court (1962) 57 Cal.2d 450. See also Markoffv. N.Y. Life Ins. Co. (1976) 530 F.2d 841, 842 — describing the rule as “the California Position on Collateral Estoppel’’) In the McLaughlin case, the First District Court of Appeal evaluated the collateral effect of an affirmance by the Ninth Circuit Court of Appeal of a bankruptcy judgment. The bankruptcy court had based its decision on two grounds (that the Appellant wasnot a farmer and did not own the property in question) but the federal appellate court addressed only one of the issues (not a farmer) and affirmed the bankruptcy judgment. In the secondaction, the Plaintiff Bank in an unlawful detainer action asserted res judicata to the issue as to whether the Defendant ownedthe property. Judgment wasentered in favor of the Bank. On appeal, the Court of Appeal affirmed holding that “a general affirmance of a judgment on appeal makesit res judicata as to all the issues, claims, or controversies involved in the action and passed upon bythe court below,although the appellate court does not consider or decide uponall of them. (/d at Page 629) In the DiRuzza case, the Plaintiff, a deputy sheriff, was charged with a crime andaspart of a plea deal, agreed to resign from her job as a deputy sheriff. Even so, she filed a state action against the Sheriff’s Department for wrongful discharge and other causes of action. Among other things in the Department’s summary judgment motion, the defense argued the plea agreement barred Plaintiff's 21 action against the Department. Summary Judgment was granted. On appeal, the Court of Appeal affirmed the judgment but addressed procedural issues only and elected not to address the plea agreement issue. Plaintiff then filed a federal action alleging multiple causes of action based upon a claim for constructive discharge. The Department brought a summary judgment claiming the state court action barred Plaintiff's claim. On appeal to the Ninth Circuit Court of Appeal, the Ninth Circuit concluded state law applied as to res judicata and collateral estoppel issues and analyzed California law. The Court concludedthat under Skidmore, becausethestate trial court concluded Plaintiffs plea agreement precluded her from claiming constructive discharge and because the Court of Appeal affirmed the judgment in total even thoughit did not address the plea-bargaining issue, claim or issue preclusion applied. Plaintiff claims because this Court only addressedthe statute of limitations in SamaraI, the trial court’s findings that Defendant Nahigian was notnegligent and did not cause Plaintiff injury cannot be used for claim preclusion or issue preclusion against Petitioner relying upon Zevnik v. Superior Court, (2008) 159 Cal App4th 76, 86- 88 (“Zevnik IP’) and Newport Beach Country Club, Inc v. Founding Members ofNewport Beach Country Club (2006) 140 Cal App4th 1120, 1132 (“Newport Beach IT’) (See also Butcher relied upon in Newport BeachIT.) These casesare distinguishable or decided incorrectly. In Zevnik, a law firm represented four plaintiffs in a complex insurancelitigation for many years. Twoofthe plaintiffs developed divergentinterests and in the insurance case brought a motion to 22 disqualify the law firm on the groundsthat the law firm violated its ethical duties by representingall plaintiffs wherein a conflict of interest existed. The law firm opposed the motion on the groundsthat no conflict existed and the motion should be denied on the grounds of laches. Thetrial court denied the motion on the groundsof laches and ruled the law firm did not violate any ethical duties. On appeal, the Second District Court of Appeal, Division Three, affirmed the denial on the ground of laches and did not address the issue as to whetherthe law firm violated its ethical duties. (UTT Industries, Inc. v Pacific Employers Ins. Co. (Jan. 29, 2007, B187238 [nonpub. opn.] (“Zevnik I’)). See Zevnik IT at 159 Cal.App.4" 76,80.). The divergent plaintiffs then filed a legal malpractice case against the law firm claimingit fell below the standard of care by representing the plaintiffs when a conflict of interest existed. The law firm brought a “motion”in the malpractice action arguing the findings in the motion to disqualify in the insurance case were “conclusively established” and affirmed on appeal and thusthe plaintiffs were collaterally estopped from asserting that the law firm violated its ethical duties. Thetrial court denied the motion and submitted the following issues for appellate interlocutory review pursuant to Code of Civil Procedure, section 166 to be 1) whether issues decided on a motion to disqualify counsel can be collaterally estoppel in a malpractice case; and 2) whether collateral estoppel applies to each alternative ground supportinga trial court decision in these circumstances, or only to the ground which the appellate court based its affirmance. The SecondDistrict affirmed the denial of the motion on the groundthat with respect to the first appellate decision in the insurance case,collateral estoppel of that 23 decision can only be usedasto the issue addressed by the appellate court, not the alternative ground not addressedby the appellate court. Interestingly, the Second District refused to express an opinion whetherissues decided on a motion to disqualify counsel can be used as collateral estoppel in a malpractice case. (Zevnik I] at Page 81 Fn. 2) First, the ruling in Zevnik I wasinterlocutory and resulted in no final judgmentand arose from a motion to disqualify which hardly qualifies as a trial or adjudication on the merits. Second, in Zevnik II, the Court of Appeal held that its decision does not apply to res judicata principles. Third, Zevnik IT merely holds that the Court of Appealopinion affirmingthe trial court’s rulings in the first action does not always “conclusively establish” those issues for collateral estoppel purposes in the secondaction. The Court ofAppeal remanded arguably givingthe trial court the right to assess whether collateral estoppel applied to the issue notwithstanding the Court of Appeal decision in Zevnik I. Newport Beach IT involves a dispute between the owner of a country club and its membersarising out of a written “right of first offer” between the two. In the first action, the members sued the owner Newport Beach Country Club (NBCC)to enforce a written agreement which allegedly entitled the membersto notice of any offer to buy the club by a third party and the opportunity to purchase under the same terms. NBCC hadreceived an offer to purchase the stock of NBCC’s parent company IBC,Inc. from a third party. (Founding Members ofthe Newport Beach Country Club vy. Newport Beach Country Club,Inc. (2003) 109 Cal.App.4" 944 (“Newport Beach I’) Thetrial court granted summary judgmentin favor ofNBCC on the 24 groundsthat pursuant to the written agreement before the members were entitled to exercise the rightoffirst refusal, they had to be a “memberorganization”at the time of the offer and they were not and 2) the type of offer that was made to the owner(sale of stock of parent company)did nottrigger the right offirst refusal in any event. On appeal in Newport BeachI, the Fourth District Court of Appeal, affirmed on the grounds the membersfailed to set up a member organization but did not address whetherthe offer triggered the right offirst refusal. The judgment in favor ofNBCC wasaffirmed. After the decision in Newport Beach I, the members created and registered a memberorganization with the NBCC. NBCC acknowledged the validity of the memberorganization andthe right to exercise the right of first offer but confirmed that the organization had norightoffirst offer as to the proposed sale of the stock ofNBCC’s parent company IBC. The membersrefused to acknowledgethe lack of that right. In Newport Beach IT, NBCCthenfiled its own action for declaratory relief to declare the members had norightoffirst offer as to the offer to purchase the IBC stock based upon the previous judgment in Newport Beach I. Thetrial court granted summary judgmentin favor ofNBCC.Thetrial court ruled: “The Order Granting Summary Judgment in favor ofNBCC and against Founding Membersin that certain action knownas Founding Members ofThe Newport Beach Count[r]y Club v. Newport Beach Country Club, Incorporated (Orange County Superior Court Case No. 01CC10534) is binding upon Founding Membersin its entirety, including, without limitation, the conclusion in the Orderthat the sale of the stock of NBCC's parent corporation, International Bay 25 Clubs, Incorporated, does not trigger the Right of First Offer in Article V, Section 2 of the Governing Regulations.” “In granting this summary judgment, the Court has examined the competing lines of authority on the scope of res judicata/collateral estoppel effect to be accorded orders and judgmentsoftrial courts, including the California appellate court decision cited by Newport Beach ofButcher v. Truck Ins. Exchange, 77 Cal.App.4th 1442... (2000). However, this Court ultimately concludes that Auto Equity Sales v. Superior Court, 57 Cal.2d 450...1962), People v. Skidmore, [supra,| 27 Cal. 287 ... and the persuasive discussion of California law in DifR]uzza v. County ofTehama, 323 F.3d 1147 (9th Cir. 2003) establish that, under California law, the affirmance of a decision at the trial court level by an appellate court extends binding andlegaleffect to the whole of the trial court's determination, with attendant collateral estoppel effect.” Ud. at 1125) The members appealed. The Fourth District Court of Appeal reversed. The Court ofAppeal refused to follow the “traditional rule” set forth in Skidmore and McLaughlin becausein the Court’s opinion, Skidmore and the “traditional rule” had not withstoodthetest of time because Section 27 of the Restatement Second of Judgments, Comment 0 was adopted in 1982 which in the Court’s opinion effectively overrules Skidmore. That commentstates: “If the appellate court upholds one of these determinationsas sufficient and refuses to consider whetheror not the other [determination] is sufficient and accordingly affirms the judgment, the judgmentis conclusiveas to the first determination.” The Court of Appealstated: 26 Webelieve the California Supreme Court,iffaced with the issue today, would adopt the modern rule expressed in comment o to the Restatement Second of Judgments, section 27. We therefore adopt the modern/Restatement Second rule and, agreeing with Butcher, hold that “if a court of first instance makes its judgment on alternative grounds and_ the reviewing court affirms on only one ofthose grounds, declining to consider the other, the second groundis no longer conclusively established.” (Butcher, supra, 77 Cal.App.4th at p. 1460.) Onits face, the Newport Beach IT opinion violates the jurisdictional mandates of stare decisis and should be ignored. (Auto Equity Sales v. Superior Court, supra, 57 Cal.2d 450, 455-456) Even so, the distinguishing feature in the Newport Beach II caseis thatit was NBCC,not the members, suing offensively by declaratory relief in the second lawsuit. Res judicata and collateral estoppel are generally considered to be defensive mechanisms to avoid the relitigation of matters already litigated. (Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4" 82, 88-89)If after the Newport Beach I case was decided and judgmentwasentered against the members and the members sued for the exact same thing in the second lawsuit, similar to the Plaintiff in this case, it is highly unlikely the Court of Appeal would haveruled the same way. In Butcher, the Plaintiff contracted with Truck Insurance through his insurance agent to obtain coverage for malicious prosecution byasserting to his agent that he wanted the same 27 coverage he had with his previous carrier West American. When sued for malicious prosecution, Butcher tendered to Truck and West American which said tender was denied. In a federal court action, Butcher sued West American for insurance bad faith asserting coverage underhis old policy. The district court granted summary judgment in favor of West American on the grounds1) the policy did not cover malicious prosecution and 2) the acts or omissionsin the malicious prosecution suit did not occur within the West American policy period. On appeal, the Ninth District Court of Appeal affirmed the judgment on the groundthe acts fell outside the policy period and did not address the coverage issue. (“Butcher I’) In state court, Butcher sued his insurance agent claiming he misled Butcherinto thinking the Truck policy covered malicious prosecution. The agent brought a summary judgment motion on the ground the federal action barred the action against the agent because it conclusively established the West American policy did not cover malicious prosecution and the contract between the agent and Butcher was the procurementofthe same coverage Butcher had under the West American policy. Thetrial court granted summary judgment. On appeal, the Court of Appeal reversed holding that because the Ninth District refused to address the coverage issue, it was not on the merits and could not be used for preclusive effect in the state action. The Butcher court determined that federal law applied but conceded that federal law on the issue is the same as California law and then it proceeded to analyze the conflicting cases. It never mentioned Skidmore. Evenso, the case is distinguishable because the issues in Butcher I were clearly not similar to the issues in Butcher IT. 28 Again, Skidmore is still good law and makesjudicial sense to continue to follow because it promotes judicial economy and promotes the avoidanceofrelitigating previously adjudicated claims and/or issues. In light of the conflicting opinions between Skidmore, McLaughlan and DiRuzza on the one hand, and Butcher, Zevnik II and Newport Beach IT on the other hand, this Court should accept review to provide uniformity andclarity to the principles of claim and issue preclusion. B. ARTICLE VI, SECTION 14 DOES NOT MANDATE THAT THE COURT OF APPEAL ADDRESS EVERY ISSUE BEFORE IT IN WRITING FOR IT TO BE CONSIDERED ON THE MERITS Article VI, section 14 provides: The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinionsshall be available for publication by any person. Decisions of the Supreme Court and courts of appeal that determine causesshall be in writing with reasons stated. As one of its grounds for not giving preclusive effect to the Nahigian Judgment, the Court of Appeal stated that: Third, as a policy matter, giving preclusive effect to an issue expressly not decided in the appellate opinion would conflict with the appellate court's duty 29 under article VI, section 14 of the California Constitution to set forth its decisions in writing ““with reasons stated.’ ... To comply with th[at] constitutional mandate, and to avoid unintended collateral estoppel consequences under the traditional [Skidmore] rule, the appellate court would have to address every groundrecited in a judgment, even though a decision on one ground would resolve the dispute before the court.” (Newport Beach, supra, 140 Cal.App.4th at p. 1132.) (Samara II at page 809) Article VI, section 14 does not mandatethat in orderto affirm a judgment on the merits decided bythe trial court that the appellate court addressall those issues in writing on appeal evenif it is not necessary to affirm the judgment. No published opinion has ever addressedthis issue other than the Court ofAppeal in this case and Newport Beach IT. Neither the Court of Appealin this case northe Court of Appeal in Newport Beach IT cited any case authority interpreting Article VI, section 14 in such a narrow manner. Granting review to addressthis issue in conjunction with the collateral estoppel and res judicata issues will provide the appellate courts with significant guidance in the future when addressing the merits of the trial court’s groundsfor entry ofjudgment. 30 C. THE COURT OF APPEAL SHOULD HAVE GRANTED PETITIONER LEAVE TO FILE SUPPLEMENTAL BRIEFING PURSUANT TO GOVERNMENT CODE, SECTION 68081. Government Code, section 68081 provides: “Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which wasnot proposedorbriefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upontimely petition of any party.” The sole groundasserted by Plaintiff on appeal was that res judicata and/or collateral estoppel did not apply becauseofthe rulings in Zevnik [I and Newport Beach IT. Nowherein thebriefs did the Plaintiff argue preclusion principles did not apply because the claims or issues were not asserted in a separate lawsuit or that applying preclusion principles would be splitting a cause ofaction. It was not until oral argument when the Court of Appeal brought the potential issue to the attention of appellate counsel. The Court of Appeal essentially based its entire decision on the holding that preclusion principles do not apply in this case because to do so would besplitting a cause of action. Petitioner brought a timely 31 Petition for Rehearing requesting leave to file supplemental briefing to address this new issue which was denied. Government Code, section 68081 mandates the Court of Appeal to grant such leave whichit refused to do. In addition, Plaintiff never asserted on appeal that the issue of post-surgical acts or omissionsof Petitioner was a separate and distinct cause of action requiring the defense to bring a motion for summary adjudication. This issue was neverbriefed by any party. This issue should have been deemed waived bythe Plaintiff. Instead, the Court of Appeal, as a second reason for reversing the trial court’s judgment, held a second cause of action for post- surgical acts was included in the Amended Complaint and should have been addressed by a motion for summary adjudication. Again, Petitioner requested leave to file supplemental briefing which was erroneously decided. If review is not granted to address the viability of Skidmore and the interpretation of Article VI, section 14, Petitioner requests that the matter be remandedto the Court of Appeal ordering that the Petition for Rehearing be granted and Petitioner be granted leave to file supplemental briefing. 32 D. IF THE COURT OF APPEAL DECISION REGARDING THE ASSERTION OF A SECOND CAUSE OF ACTION FOR POST-SURGICAL ACTS OR OMISSIONS OF PETITIONER, IS CORRECT,IT DID NOT HAVE JURISDICTION TO ISSUE THEIR PUBLISHED OPINION BECAUSE THE TRIAL COURT ORDER WAS NOT AN APPEALABLE ORDER BECAUSEIT DID NOT DISPOSE OF ALL CAUSES OF ACTION. Since the Court of Appealheld that Plaintiffs claims for negligent referral and negligent post-operative care by Petitioneris a separate cause of action claiming separate primary rights, then the summary judgment order that forms the basis of this appeal is no longer an appealable order.It is hornbook law thata trial court judgmentthat does not dispose ofall pending causesofaction is not appealable. Under the “one final judgment rule’, the appeal must await final judgmentin the entire action. (Angell v. Superior Court (1999) 73 Cal.App.4th 697) If this Court refuses to grant review as to the viability of Skidmore and the interpretation of Article VI, section 14, then Petitioner requests that the Court of Appeal opinion be vacated for lack ofjurisdiction. 33 IV. CONCLUSION The law of claim preclusion and issue preclusion in California has developed inconsistent opinions andrulings because ofthe lack of clarity of the viability of Skidmore. (See for example, ARTICLE: California's Unpredictable Res Judicata (Claim Preclusion) Doctrine, 35 San Diego L. Rev. 55; and ARTICLE: California's Confusing Collateral Estoppel (Issue Preclusion) Doctrine, 35 San DiegoL. Rev. 509.) Review is needed to provide clarity and uniformity of decisions. Respectfully submitted, Dated: 3-27-17 FORD, WALKER, HAGGERTY & BEHAR NEIL S. TARDIFF, Attorneys for Respondent, Haitham Matar D.D.S. 34 CERTIFICATE OF WORD COUNT Counsel of Record hereby certifies that pursuant to Rule 8.504(d)(1) of the California Rules of Court, the enclosed Petition for Review by Petitioner HAITHAM MATAR D.D.S.is produced using 14-point Romantype and contains approximately 7,056 words. Dated: 3-27-17 Neil S. Tardiff 35 Filed 2/15/17 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN RANA SAMARA, B265752 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. EC056720) v. HAITHAM MATAR, Defendant and Respondent. APPEALfrom a judgmentof the Superior Courtof Los Angeles County, William D. Stewart, Judge. Reversed and remanded. Curd Galindo & Smith, Alexis Galindo for Plaintiff and Appellant. Ford, Walker, Haggerty & Behar, Katherine M. Harwood and Neil S. Tardiff for Defendant and Respondent. APPO1 Rana Samara sued Dr. Haitham Matar and Dr. Stephen Nahigian for dental malpractice, alleging Dr. Nahigian had negligently performed oral surgery on her and Dr. Matar, as Dr. Nahigian’s principal and employer, was vicariously liable for Dr. Nahigian’s negligence. The trial court granted summary judgmentfor Dr. Nahigian on alternative grounds—Samara’s negligence claim was barred by the statute of limitations and Samara could not establish causation. Weaffirmed the judgment in favor of Dr. Nahigian based solely on the statute of limitations, expressly declining to reach the issue of causation. (See Samara v. Estate of Stephen Nahigian D.D.S. (Nov. 10, 2014, B248553) [nonpub. opn.] (Samara J).) Following our decision in favor of Dr. Nahigian, Dr. Matar movedfor summary judgment, arguing the question of Dr. Nahigian’s liability had been conclusively determined in Dr. Nahigian’s favor (issue preclusion) and Dr. Matar was thus entitled to judgment on Samara’s vicariousliability claim as a matter of law. Dr. Matar also asserted Samara could not establish that he had been independently negligent or that his own acts or omissions had caused herinjury. The trial court granted Dr. Matar’s motion, concluding Samara’s claim for vicarious liability was barred under the doctrine of claim preclusion—a ground not raised in Dr. Matar’s motion—and Samaracould not show Dr. Matar independently caused her any injury. On appeal Samara contends neither claim preclusion norissue preclusion applies in this case. We agree and reverse the judgment. APPO2 FACTUAL AND PROCEDURAL BACKGROUND 1. This Lawsuit On September6, 2011 Samara sued Drs. Nahigian and Matarfor professional negligence/dental malpractice. As to Dr. Nahigian, the operative first amended complaint alleged he had negligently inserted a dental implant while performingoral surgery on Samara on August 16, 2010. As a result of Dr. Nahigian’s negligence, Samara suffered permanent nerve damage. As to Dr. Matar, Samara alleged Dr. Nahigian had performed the surgery while on probation by the California Dental Board and was working undera restricted dental license as an agent/employee of Dr. Matar. Samara asserted Dr. Matar, as Dr. Nahigian’s principal/employer, was vicariously liable for Dr. Nahigian’s negligence. She also alleged Dr. Matar was directly negligent in failing to inform her of Dr. Nahigian’s probationary status andof the risks of surgery andforfailing to conduct appropriate post-operative care and treatment. Samara sought damages from Drs. Matar and Nahigian in excess of $250,000. 2. Dr. Nahigian’s Motion for Summary Judgment Dr. Nahigian moved for summary judgment on three grounds: (1) Samara could not demonstrate his conductfell below the standard of care; (2) she could not establish his allegedly deficient performance caused her nerve damage; and (3) Samara’s action was time-barred. Dr. Nahigian submitted the declaration of Dr. Bach Le, an oral surgeon, who opined “to a reasonable degree of medical probability, that no negligent act or omission on the part of Dr. Nahigian caused or contributed to” Samara’s injuries. APPO3 With her opposition to Dr. Nahigian’s motion Samara submitted the declaration of Dr. Gregory Doumanian, who testified Dr. Nahigian had used an implant that wastoo large, conduct that fell below the standard of care. He also declared Samara’s nerve injury “could have been prevented had Dr. Nahigian used a shorter implant or an alternative treatment plan.” Thetrial court granted Dr. Nahigian’s motion, ruling Samara’s action against Dr. Nahigian was time-barred under the one-year-from-discovery provision of Code of Civil Procedure section 340.5.’ Alternatively, the court ruled Dr. Nahigian had met his burden to show Samara could not establish the essential element of causation. The court found Dr. Doumanian’s opposition declaration did not state an opinion on causation to a “reasonable degree of medical probability” and, therefore, failed to raise a triable issue of material fact on that question. The court entered judgment in favor of Dr. Nahigian. 3. Samara’s Appeal from the Judgment in Favor of Dr. Nahigian On appeal from the judgmentin favor of Dr. Nahigian, Samaraconcededthetrial court had correctly ruled her action , Dr. Matar also moved for summary judgment contending Samara’s negligence claims were barred by the statute of limitations. The court denied Dr. Matar’s motion, concluding Samara’s notice of intention to commence an action for professional negligence to Dr. Matar, unlike her earlier separate notice to Dr. Nahigian, extended the limitations period by 90 days, making the lawsuit against Dr. Matar timely. (See Code Civ. Proc., § 364, subds.(a), (d).) At Samara’s request, following entry of judgmentin favor of Dr. Nahigian, further proceedingsin the action against Dr. Matar were stayed pending resolution of Samara’s appeal from that judgment. APP04 against Dr. Nahigian was time-barred. However, she requested we reverse the alternative ground on which the court had granted summary judgment—lack of causation—to preclude Dr. Matar from relying on that ruling in the action against him under the doctrineof collateral estoppel/issue preclusion. Dr. Nahigian did not file a respondent’s brief. We affirmed the judgment, but expressly declined to reach the alternative ground of causation because it was not necessary to our decision. Citing case law that holds an affirmance on an alternative ground operates as collateral estoppel/issue preclusion only on the ground reached by the appellate court, we also noted, “Because the questionis not before us, we also do not address whethercollateral estoppel may be used with regard to an alternative ground for judgment not reviewed by the appellate court. (See generally Zeunikv. Superior Court (2008) 159 Cal.App.4th 76, 86-88; Newport Beach Country Club, Inc. v. Founding Members of Newport Beach Country Club (2006) 140 Cal.App.4th 1120, 1132 [(Newport Beach)|.)”’ (Samara I, supra, B248553.) 4, Dr. Matar’s Motion for Summary Judgment Following our decision in Samara J, Dr. Matar movedfor summary judgment. Citing principles of collateral estoppel/issue preclusion, he argued Samara’s unsuccessful action against Dr. Nahigian had conclusively established Dr. Nahigian’s conduct did not cause Samara’s injury, precluding her claim against him based on a theory of vicarious liability as a matter of law. With respect to the allegations of his own negligent conduct, Dr. Matar argued Samara could not prove he had acted below the standard of care or had caused any injury. Dr. Matar included with his motion the declaration of Dr. Barton Kubelka, a licensed dentist, whoopined Dr. Matar’s treatment plan both before and after the APPO5 surgery was appropriate and in accordance with the standard of care; he did not have a duty as a referring dentist to warn Samaraof the risks of the dental implant procedure; and no negligent act or omission on Dr. Matar’s part caused Samara any injury. Samara opposed the motion, arguingcollateral estoppel/issue preclusion did not apply because we had expressly declined in our decision affirming the judgment in favor of Dr. Nahigian to decide the alternative ground of causation. Samaraalso included a revised declaration from Dr. Doumanian, whoopined Dr. Nahigian’s use of the wrong-sized implant during surgery was below the standardof care and that his conduct, “to a reasonable degree of medical probability,” had caused Samara permanent nerve damage. Finally, citing Dr. Doumanian’s declaration, Samara arguedtriable issues of material fact existed as to whether Dr. Matar was independently negligent in his post- operative treatment of her. She did not argue or include evidence Dr. Matar was negligent in referring her to Dr. Nahigian or that his post-operative care or treatment had caused herinjury. In his reply Dr. Matar argued Samara had failed to raise a triable issue of material fact that any post-operative action or omission had directly caused her injury. The trial court granted Dr. Matar’s motion, ruling under the doctrine of claim preclusion the earlier judgmentfor Dr. Nahigian barred Samara’s vicarious liability claim. The trial court acknowledged modern case law holding issue preclusion/ collateral estoppel inapplicable when the groundrelied on by the trial court in an earlier action had not been addressed in the appellate opinion affirming the judgment, but distinguished those authorities on the ground the question in the instant APP06 matter was oneof claim preclusion, not issue preclusion. The court also found Samara hadfailed to establish a triable issue of material fact that Dr. Matar had independently caused her injury. DISCUSSION 1. Standard of Review A motion for summary judgmentis properly granted only when“all the papers submitted show that there is notriable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgmentde novo and decide independently whetherthe facts not subject to triable dispute warrant judgment for the moving party as a matterof law. (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) The evidence must be viewedin the light most favorable to the nonmoving party. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 703; Schachter, at p. 618.) 2. The Trial Court Erred in Granting Summary Judgment on the Ground of Claim Preclusion The question of the applicability of claim preclusion or issue preclusion is one of law to which we apply a de novoreview. (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507 (Johnson); Noble v. Draper (2008) 160 Cal.App.4th 1, 10.)” . Although Dr. Matar moved for summary judgmenton the groundof issue preclusion, the trial court decided the motion based on claim preclusion—anissue not raised in Dr. Matar’s motion or addressed in Samara’s opposition. However, Samara hasnot objected on notice groundsto the court’s ruling; we consider that issue forfeited. (See Fourth La Costa Condominium Owners Assn. v. Seith (2008) APPO7 a. Res judicata: claim preclusion and issue preclusion The doctrine of res judicata has two aspects—claim preclusion and issue preclusion. (DKN Holdings LLC. v. Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings); Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) “Claim preclusion ‘prevents relitigation of the same causeof action in a second suit between the samepartiesor parties in privity with them.’ [Citation.] Claim preclusionarises if a second suit involves (1) the same cause of action (2) between the sameparties [or those in privity with them] (8) after a final judgment on the merits in the first suit. [Citations.] If claim preclusion is established, it operates to barrelitigation of the claim altogether.” (DKN Holdings, at p. 824; accord, Mycogen Corp.v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen); Johnson, supra, 166 Cal.App.4th at p. 1507.) The bar appliesif the cause of action could have been brought, whetheror not it was actually asserted or decidedin thefirst lawsuit. (Busick v. Workermen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974; Zeunik v. Superior Court, supra, 159 Cal.App.4th at p. 82.) The doctrine promotes judicial economy andavoids piecemeallitigation by preventing a cecceplaintiff from “splitting a single cause of action orrelitigat[ing] the same causeof action on a different legal theory or for different relief.”” (Mycogen, at p. 897.) The second aspect of res judicata, issue preclusion, historically referred to as collateral estoppel, “prohibits the relitigation of issues argued and decided in a previous case, even 159 Cal.App.4th 563, 585 [due process notice issue forfeited because not raised in trial court}; In re Marriage ofKhera & Sameer (2012) 206 Cal.App.4th 1467, 1478.) APPO8 if the second suit raises different causes of action. [Citation.] Underissue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in thefirst action.” (DKN Holdings, supra, 61 Cal.4th at p. 824; accord, Boeken v. Philip Morris USA, INC., supra, 48 Cal.4th at p. 797.) The doctrine applies “(1) after final adjudication (2) of an identical issue (8) actually litigated and necessarily decided in thefirst suit and (4) asserted against one who wasa party in thefirst suit, or one in privity with that party.” (DKN Holdings, at p. 825.) The doctrine differs from claim preclusion in that it operates as a conclusive determination of issues; it does not bar a cause of action. ([bid.) In addition, unlike claim preclusion, issue preclusion can be raised by one whois not a party to the prior proceeding against one who wasa party or his or herprivy. (Ubid.; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Moreover, even if the minimal requirementsfor issue preclusion are satisfied, courts will not apply the doctrine if policy considerations outweigh the doctrine’s purpose in a particular case. (Lucido, at pp. 342-343.) b. Claim preclusion is not applicable because there were not successive lawsuits Thereis no dispute the first two elements necessary for claim preclusion are present here: (1) Samara’s action against Dr. Matar for professional negligence, to the extent it is based on his alleged vicarious liability for Dr. Nahigian’s conduct, involves the same cause ofaction, that is, the same primaryright, as that alleged in her lawsuit against Dr. Nahigian;’ and (2) as an ° Underthe primaryrights theory of claim preclusion applicable in California, “a cause of action arises from the invasion of the primary APPO9 alleged employer/principal, Dr. Mataris in privity with Nahigian. (See DKN Holdings, supra, 61 Cal.4th at pp. 827-828 [“[w]hen a defendant’s liability is entirely derived from that of a party in an earlier action, claim preclusion bars the second action because the [primary right is the same and] second defendant stands in privity with the earlier one”]; Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 578-579 [same].) The essential third element—separate or successive lawsuits—is not. As discussed, summary judgmentin favor of Dr. Nahigian was granted on alternative grounds, causation and statute of limitations. Had no appeal beenfiled, that judgment, on the merits, would have been final and entitled to preclusive effect. (See Brown v. Campbell (1893) 100 Cal. 635, 647; Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1174 [in California, unlike in federal courts, “the rule is that the finality required to invoke the preclusive barof res judicata [claim preclusion] is not achieved until an appeal from the trial court judgment has been exhausted or the time to appeal has expired”].) However, an appeal was filed and decided solely on the basis of the statute of limitations, a purely procedural ground that was personal to Dr. Nahigian (see fn. 1, above). (Lackner v. LaCroix (1979) 25 Cal.3d 747, 751- 752 [termination of action on statute of limitations ground is not an adjudication on the merits]; Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 183-184 [“California law holds that a civil right. Although different groundsfor legal relief may be asserted under different theories, conduct that violates a single primary right gives rise to only one cause of action.” (DKN Holdings, supra, 61 Cal.4th at p. 818, fn. 1; see also id. at p. 828; Boeken v. Philip Morris, supra, 48 Cal.4th at pp. 797-798.) 10 APP10 judgmentbased solely on the statute of limitations is not on the merits”].) Notwithstanding the expressly limited nature of our decision in Samara J, relying on the Civil War-era case of People v. Skidmore (1865) 27 Cal. 287 (Skidmore), Dr. Matar argues our decision affirmed the entire judgment, includingthetrial court’s merits-based determination on causation, even though wedid not reach that question. In Skidmore the lower court had entered a judgmentin favor of defendants on alternative grounds, one procedural (misjoinder) and one on the merits. On appeal the Supreme Court affirmed the judgment on misjoinder grounds without reaching the merits, stating its decision would not “preclude the plaintiff from suing again when the causeof action c[ould] be more formally set out.” (/d. at p. 292.) The plaintiff then filed a second action against the same defendants,alleging the same cause of action. The defendants argued the action was barred underthe doctrine of claim preclusion by the judgmentin the first lawsuit. Theplaintiff, on the other hand, argued there had been nofinal judgment on the merits in that lawsuit, only a decision on procedural grounds. The Skidmore Court acknowledged thatin its prior decision it had affirmedthetrial court judgment on purely procedural grounds. Nonetheless, characterizing as dicta its earlier suggestion thatthe plaintiff could refile the action, the Court held its affirmance of the judgment “was an affirmance to the whole extentof the legal effect of the judgment when it was entered in the [c]ourt below.” (Skidmore, supra, 27 Cal.2d at p. 292.) In other words, because the judgment below was on the merits, the Supreme Court’s affirmance of that judgment, even on purely procedural grounds, was tantamountto an affirmance 1] APP11 of the judgmentin its “entirety, and by direct expression.” (/d. at p. 2938 [“[t]he judgment below wasnot reversed, either in whole or in part, by the Supreme Court, nor was it modified in any particular; andit follows, if the Court dealt with the judgmentat all, it must have affirmedit to the whole extent of its terms”].) Assuming the Skidmore holdingstill remains viable—a question we need not decide but which the Supreme Court might want to address'—ourdecision in Samara I in favorof Dr. Nahigian might well have barred Samara’s vicariousliability claim against Dr. Matar if she had asserted it in a separate lawsuit. But Samara did not “split” her cause of action: She sued Drs. Nahigian and Matarin a single action asserting they were both liable (Dr. Nahigian,directly; Dr. Matar, vicariously) for Dr. Nahigian’s negligent performance of her oral surgery. Accordingly, the judgmentin favor of Dr. Nahigian does not bar Samara from continuing her action against Dr. Matar. Claim preclusion simply does not apply in these circumstances. (See DKNHoldings, supra, 61 Cal 4th at pp. 827-828 [judgment in favor of one defendant bars a second action against a second defendantin privity with the first under thedoctrine of claim preclusion]; Clark v. Lesher (1956) 46 Cal.2d 874, 880 [in claim preclusion, a prior judgmentbars a “second suit between the same parties”]; see also Mycogen, supra, 28 Cal.4th at p. 897 [fA clear and predictable res judicata doctrine promotes judicial economy. Underthis doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought ‘ Several appellate courts have rejected Skidmore’s applicability in the related collateral estoppel/issue preclusion context. (See Discussion, infra, at pp. 15-19.) 12 APP12 initially, they may not be raised at a later date”]; Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 557- 558 [where securities broker found not lable for investment losses, losing plaintiff cannot subsequently sue broker’s principal based on sameclaim; successive lawsuit barred by claim preclusion]; Thibodeau v. Crum (1992) 4 Cal.App.4th 749, 757 [when general contractor prevails in arbitration, claim preclusion barred plaintiff's successive lawsuit against the subcontractor whodid the work].) As Dr. Matar realized when he moved for summary judgment, the question here is not whether claim preclusion applies, but whether underthe doctrine of issue preclusion resolution of Dr. Nahigian’s liability in his favor conclusively established the question of causation for purposes of Dr. Matar’s alleged vicariousliability. (See Freeman v. Churchill (1947) 30 Cal.2d 458, 462 [when employee and employer are sued in same lawsuit and employer’s liability is alleged to be solely derivative of employee’s, judgment favorable to employee conclusively established employer not liable; employer thus entitled to directed verdict based on issue preclusion]; Sartor v. Language in Freemanv. Churchill, supra, 30 Cal.2d 453 that the rule of “res judicata” “is the same whetherthe actions are separate or the employee and employerare joined in the sameaction”(id. at p. 461) does not suggest otherwise. A careful review of Freeman reveals that, in holding the employer wasentitled to a directed verdict rather than dismissal of the lawsuit based on its finding in favor of the employee, the Court used the term “res judicata” to refer to issue preclusion, not claim preclusion. (See id. at pp. 461-462; see also DAN Holdings, supra, 61 Cal.4th at pp. 823-824 [observing the Court’s prior opinions have caused someconfusion becauseof the Court’s historic tendency to use the “umbrella term” “res judicata” to refer to claim preclusion, issue preclusion or both;in fact, “[i]t is important to 13 APP13 Superior Court (1982) 136 Cal.App.3d 322, 325-328 [when plaintiff sued employees and principal corporation, and claim against employees stayed pending arbitration against principal corporation, ruling in favor of corporation operatedascollateral estoppel/issue preclusion on question of employees’ liability].) c. The issue of Dr. Nahigian’s negligence has not been conclusively established Dr. Matar contends Skidmoreis controlling on the applicability of issue preclusion. That is, even though we affirmed the judgment in Samara I solely on statute of limitations grounds, expressly declining to reach the causation question, Dr. Matar arguesouraffirmance necessarily encompassedall issues reached by thetrial court, includingits finding Samara could not show Dr. Nahigian caused herinjury. (See DiRuzza v. County of Tehama (9th Cir. 2003) 323 F.3d 1147, 1156 (DiRuzza) [the California position as articulated in Skidmoreis that “even if the appellate court refrains from considering one of the grounds upon which the decision below rests, an affirmance of the decision below extendslegal effects to the whole of the lower court’s determination, with attendant collateral estoppel effect]; see also Tomkow v. Barton (9th Cir. Jan. 5, 2017, BAP No. CC-16-1075) __ F.3d __ [2017 Bankr. Lexis 31, at *10, *19 [following Di Ruzza as “binding precedent from the Ninth Circuit’].) With onerelatively timeworn exception California courts of appeal haverejected application of Skidmore in the collateral estoppel context, concluding an affirmance on an alternative distinguish these two typesof preclusion because they havedifferent requirements” and effects].) 14 APP14 ground operatesas collateral estoppel/issue preclusion only on the ground reached by the appellate court. (See People ex rel. Brownv. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1574-1575; Zeunik v. Superior Court, supra, 159 Cal.App.4th at pp. 87-88; Newport Beach, supra, 140 Cal.App.4th at p. 1131; Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442, F.3d __ [2017 Bankr. Lexis 31 at *10] [following DiRuzza as controlling 1459-1460; see also Tomkow v. Barton, supra, precedent while acknowledging California courts of appeal have made “compelling arguments” for departing from Skidmorerule]; but see Bank ofAmerica v. McLaughlin Etc. (1940) 40 Cal.App.2d 620, 628 [issue preclusion applicable to all issues decided bytrial court in judgment even those appellate court expressly declined to reach; “when the bankruptcy court determined that the petitioner therein had nointerest in the property listed, such determination becamefinal as to that issue, notwithstanding the fact that the Circuit Court of Appeals, in affirming the judgment, based its conclusions upon the other issues”].) In declining to apply the Skidmore rule to issue preclusion, modern appellate authorities have identified three main justifications: First, and in our view most persuasively, Skidmore addressed the doctrine of claim preclusion as it applied to successive lawsuits between the sameparties; it did not addressissue preclusion. (See Zeunik v. Superior Court, supra, 159 Cal.App.4th at p. 88 & fn. 9.) That distinction1s critical. Unlike claim preclusion, for issue preclusion to apply the issue must have been actually litigated and decided. That cannot have occurredif the appellate court reviewing the judgment expressly declined to address the issue. (Ibid.; see id. at p. 85 [“[t]he opportunity for review of a decision is an important procedural 15 APP15 99, 66 protection against a potentially erroneous determination”; “an appellate court’s failure to review an alternative ground on appeal has the sameeffect as the absence of an opportunity for review and, webelieve, should result in no collateral estoppel as to that alternative ground”]; Butcher v. Truck Ins. Exchange, supra, 77 Cal.App.4th at p. 1460 [same]; see also Moran Towing & Transportation Co. v. Navigazione Libera Triestina, S.A. (2d Cir. 1937) 92 F.2d 37, 40 [to treat as controlling the findings of a trial court when the appellate court expressly declines to rule upon them andinstead renders a decision of affirmance on different groundsis “the height of unreason” and furnishes “a false guide” to parties and to otherlitigations affected by the decision].) Second, even if Skidmore were to apply to the separate, albeit related, doctrine of issue preclusion, the law of issue preclusion “has undergone tremendous change” since Skidmore was decided, culminating in the adoption in 1982 of the Restatement Second of Judgments (Restatement Second). (See Newport Beach, supra, 140 Cal.App.4th at p. 1131.) Unlike its predecessor, which set forth a contrary rule (one that the Courtof Appeal in Bank ofAmerica v. McLaughlin Etc. Co., supra, 40 Cal.App.2d at page 628 relied on to find issue preclusion applicable to questions expressly not reached by the appellate court), the Restatement Second provides, if a judgment rendered by a courtof first instance on alternative grounds is upheld by the appellate court on only one of the grounds, and the appellate coecourt “refuses to consider whetheror not the other [ground] is sufficient and accordingly affirms the judgment, the judgmentis conclusive [only] as to the first determination.” (Newport Beach, 16 APP16 at pp. 1128-1129, quoting Rest.2d. Judgments § 27, com. 0.)° Observing that the California Supreme Court had never confirmed Skidmore in the 150 yearssince it was decided, but has cited the Restatement Second with approval concerning the doctrineof issue preclusion (see, e.g., Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 874, & fn. 6; George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1290, fn. 7), the Newport Beach court found Skidmore inapplicable to issues of collateral estoppel/issue preclusion. The court reasoned, “[T]he California Supreme Court, if faced with the issue today, would adopt the modern rule expressed in comment o to the Restatement Second of Judgments, section 27.” 6 Section 27 of the Restatement Second of Judgments provides, “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determinationis essential to the judgment, the determination is conclusive in a subsequentaction between the parties, whether on the sameor a different claim.” Commento to that section explains, “If a judgment rendered by a court of first instance is reversed by the appellate court and a final judgment is entered by the appellate court (or by the courtof first instance in pursuanceof the mandate of the appellate court), this latter judgment is conclusive betweenthe parties. [{] If the judgment of the court of the first instance was based on a determination of two issues, either of which standing independently would be sufficient to support the result, and the appellate court upholds both of these determinations as sufficient, and accordingly affirms the judgment, the judgmentis conclusive as to both determinations. ... [{] Ifthe appellate court upholds oneof these determinationsas sufficient but not the other, and accordingly affirms the judgment, the judgmentis conclusive as to the first determination. [§] Ifthe appellate court upholds one of these determinationsas sufficient and refuses to consider whetheror not the otheris sufficient and accordingly affirms the judgment, the judgment is conclusive as to the first determination.” 17 APP17 (Newport Beach, at p. 1132; accord, People ex rel. Brown v. Tri-Union Seafoods, LLC, supra, 171 Cal.App.4th at p. 1575.)' Third, as a policy matter, giving preclusive effect to an issue expressly not decided in the appellate opinion would conflict with the appellate court’s duty underarticle VI, section 14 of the California Constitution to set forth its decisions in writing “with reasonsstated.’ ...Tocomply with th[at] constitutional mandate, and to avoid unintendedcollateral estoppel consequences underthetraditional [Skidmore] rule, the appellate court would have to address every groundrecited in a judgment, even though a decision on one ground would resolve the dispute before the court.” (Newport Beach, supra, 140 Cal.App.4th at p. 1132.) In effect, application of this rule would generate the very judicial inefficiency the doctrineof issue preclusion is designed to avoid. (Ibid.; accord, Zeunik v. Superior Court, supra, 159 Cal.App.4th at p. 85; see generally Lucido v. Superior Court, supra, 51 Cal.3d at p. 343 [“the public policies underlying collateral estoppel—preservationof the integrity of the judicial system, promotion of judicial economy, and protection oflitigants from harassment by vexatious litigation—strongly influence whetherits application in a particular circumstance would be fair to the parties and constitutes soundjudicial policy”].) ’ Citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, the Newport Beach court acknowledgedits duty under the doctrine of stare decisis to follow decisions of courts exercising superior jurisdiction, but reasoned Skidmore had been impliedly, albeit not expressly, overruled. (See Newport Beach, supra, 140 Cal.App.4th at p. 11381, citing Sei Fujii v. State of California (1952) 38 Cal.2d 718, 728 (“the authority of an older case maybe aseffectively dissipated by a later trend of decision as by a statement expressly overruling it”’].) 18 APP18 For all these reasons, we agree with our colleaguesin the Fourth District (Newport Beach), the First District (Tri-Union Seafoods) and Division Three of this court (Zeuvnik) and conclude it is not properto give conclusive effect underthe doctrine of issue preclusion to a ground we expressly declined to reach in our review of the judgment. Indeed, as Justice Fybel recognized in Newport Beach, “[W]e wrote the [first] appellate decision [in this case]. We know wedid not decide the [alternative ground now at issue] and expressly stated ‘we do not address’ [that question.] ‘To hold now the judgment [in ourfirst case] is [collateral estoppel] on that issue would be, as Judge Handputit, ‘the height of unreason.” (Newport Beach, supra, 140 Cal.App.4th at p. 11380.) In so holding, we emphasizethe reasonsfor finding collateral estoppel/issue preclusion inapplicable to grounds not passed on by the appellate court do not apply in the claim preclusion context. As discussed, under the doctrine of claim preclusion, as long as an appellate court affirms at least one ground on the merits, any other claim that was or could have been brought would be subsumedin the judgment, which operates as a mergeror bar to any subsequent lawsuit based on the same primary right whetheror not the appellate court addressed the merits of that cause of action on appeal. (See generally DKN Holdings, supra, 61 Cal.4th at p. 824; Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th at p. 797.) 19 APP19 3. The Trial Court’s Summary Judgment Ruling Covering Both the Vicarious Liability and Direct Liability Claims Must Be Reversed In addition to challenging Samara’s vicariousliability claim, in his summary judgment motion Dr. Matar also argued Samara had no evidence that any negligent act or omission by him directly caused her injury. The trial court agreed, concluding Dr. Doumanian’s declaration focused on Dr. Matar’s vicarious liability and did not establish a causal nexus between any postoperative care, act or omission by Dr. Matar and Samara’s injury. Samara’s appeal does not contest the trial court’s ruling on her claim of direct liability against Dr. Matar. Nonetheless, Samara’s vicariousliability claim against Dr. Matar based on Dr. Nahigian’s alleged negligence in performingher oral surgery and herdirect liability against Dr. Matar based on his allegedly negligent post-operative care asserted violations of separate primary rights and, therefore, constituted separate causes of action for purposes of Code of Civil Procedure section 437c, subdivision (f)(1). (See Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188; Lilienthal & Fowler v. Superior Court (1998) 12 Cal.App.4th 1848, 1854-1855.) To prevail on summary judgment Dr. Matar hadto defeat both causes of action. He did not. And because he did not move in the alternative for summary adjudication of Samara’s direct liability claims, in reversing the order granting summary judgment, we are unable to direct the trial court on remand to enter a new order disposing of that claim. (See People ex rel. Government Employees Ins. Co. v. Cruz (2016) 244 Cal.App.4th 1184, 1197 [“[a]f a trial court erroneously grants summary judgment when a factual dispute exists but affects fewer than all causesof action, 20 APP20 the appellate court may direct the trial court to enter an order granting summary adjudication of the unaffected causes of action if the moving party alternatively moved for summary adjudication”]; Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1354.) DISPOSITION The judgmentis reversed, and the matter remandedfor further proceedings not inconsistent with this opinion. Samara is to recover her costs on appeal. PERLUSS,P.J. We concur: ZELON,J. SEGAL,J. 21 APP21 PROOFOF SERVICE BY MAIL Document: PETITION FOR REVIEW Caption: Rana Samara, Plaintiff and Appellant, VS. Haitham Matar D.D.S., Defendant and Respondent. Court of Appeal Case No.: B265752 STATE OF CALIFORNIA ) ) ss: COUNTY OF SAN LUIS OBISPO ) I am a citizen of the United States and a resident of or employed in the County of San Luis Obispo; I am overthe age of eighteen years and nota party to the within action; my business address is: PO Box 1446 San Luis Obispo CA 93406. Onthis date,I served the personsinterested in said action by placing one copy ofthe above-entitled documentas follows: _X By FEDEX OVERNIGHT MAIL - See Attachment to Proof of Service. By U.S. MAIL — See Attachment to Proof of Service. I certify (or declare) under penalty of perjury that the foregoing is true and correct. Executed March 27, 2017 at San Luis Obispo, California. Julia Small 36 ATTACHMENTTO PROOF OF SERVICE Attorneyfor Appellant: Alexis Galindo Curd, Galindo & Smith, LLP 301 E. Ocean Blvd., Suite 1700 Long Beach, CA 90802 Facsimile: (562) 624-1178 Via U.S. Mail Attorneyfor Respondent: Katherine M. Harwood Ford, Walker, Haggerty & Behar One World Trade Center, 27" Floor Long Beach, CA 90831-2700 Facsimile: (562) 983-2555 Via U.S. Mail Clerk of the Court of Appeal Second Appellate District, Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Via e-filing pursuantto California Rules of Court, Rules 8.70 et seq; 1 copy by U.S. Mail Los Angeles County Superior Court North Central P.O. Box 750 Burbank, CA 91502 Via U.S. Mail Supreme Court of California350 McAllister StreetSan Francisco, CA 94102Via FedEx originalplus 8copies, one via e-submission 37