A riddle (almost) as old as California

In Samara v. Matar, 2018 DJDAR 6181 (June 25, 2018), the California Supreme Court answered the age-old riddle: How many judges does it take to finally adjudicate a claim or issue in a case that goes up on appeal? For over 152 years, the answer had been one. In Samara, the court upped it to three (in most situations, at least).

The issue at the core of Samara can be illustrated by the following hypothetical: Plaintiff sues Defendant for breach of contract. Defendant moves for summary adjudication on two grounds -- A (the statute of limitations) and B (no contract). The trial court grants summary adjudication for Defendant on both A and B. Plaintiff appeals on both grounds. The Court of Appeal affirms on A, and does not reach B. If New Plaintiff (perhaps an assignee of Plaintiff's contract) subsequently sues Defendant for breach of the same contract and her claim is timely, can Defendant assert that the trial court's ruling on B (no contract) bars the New Plaintiff's claim?

The answer lies with the doctrine of res judicata and its many subdoctrines. Despite having more incarnations than a Harry Potter villain, the doctrine really just comes in two flavors, claim preclusion (aka res judicata) and issue preclusion (aka collateral estoppel).

Claim preclusion empowers a defendant to bar a plaintiff from relitigating a claim if (1) the same claim was previously litigated, (2) in a lawsuit between the plaintiff and defendant (or those in privity with them), and (3) there was "a final judgment on the merits in the first suit." DKN Holdings, LLC v. Faerber, 61 Cal. 4th 813, 824 (2015). Issue preclusion empowers a defendant to bar a plaintiff from relitigating an issue if (1) the same issue was "actually litigated and necessarily decided" in a prior lawsuit, (2) there was a "final adjudication" of that issue, and (3) the issue was "asserted against one who was a party in the first suit or one in privity with that party." Id. at 825.

These two types of preclusion differ in two significant ways. First, and as their names suggest, claim preclusion applies to an entire claim (or cause of action), while issue preclusion bars only "relitigation of previously decided issues." Id. at 824. Second, claim preclusion may only be asserted by someone who was a party to the prior lawsuit or who was in privity with such a party; issue preclusion can be asserted by anyone. Id. at 824-25.

The two doctrines nevertheless share a common element: They only apply if the claim or issue was reduced to a judgment and finally adjudicated.

But what does an adjudication become final?

If Plaintiff, in our hypothetical, had opted not to appeal the trial court's grant of summary adjudication, the trial court's judgment would ostensibly be "finally adjudicated" (except as discussed below). In re Matthew C., 6 Cal. 4th 386, 393 (1993), superseded on other grounds; Lennane v. Franchise Tax Bd., 51 Cal. App. 4th 1180, 1185-86 (1996).

But what about in the hypothetical as initially presented -- that is, if Plaintiff appeals and the Court of Appeal affirms on A alone? Appellate courts can and do often stop after finding one ground to affirm. Bleven v. Freer, 10 Cal. 172, 178 (1858).

In People v. Skidmore, 27 Cal. 287 (1865), the California Supreme Court held that, in the situation posed in our hypothetical, both A and B were finally adjudicated, and thus could not be relitigated. Id. at 289-93. Skidmore was decided a long time ago, when the state of California was just a teenager and Abraham Lincoln was still president of the United States. Skidmore had been charged with murder, and placed property into a trust to reimburse his sureties for any loss they might suffer if he skipped bail. He skipped bail, and the state sued the trustee to recover the property. The trustee demurred, and the trial court sustained the demurrer on several grounds, including misjoinder of claims and parties (A) and failure to state a cause of action (B). The California Supreme Court affirmed on A alone. When the state brought a new lawsuit that cured the misjoinder defects, the trustee asserted res judicata as to B. The Supreme Court held that relitigation of B was barred, even though the court had not previously affirmed on that ground. Id. at 292-93.

Fast forward 152 years.

Recognizing that age and wisdom do not always go together, Samara overruled Skidmore. 2018 DJDAR at 6183, 6187. Skidmore, the court reasoned, was wrong to "focus on the [finality of] the trial court's decision, without regard for the basis of the appellate court's affirmance." Id. at 6183. In the court's view, the decision whether to deem a prior adjudication of a claim or issue "final" -- and, thus, whether to grant that prior adjudication preclusive effect -- turns on whether that adjudication was sufficiently "robust." Id. at 6184. It is robust where the appellate court affirmed the trial court's resolution of the claim or issue, a process that requires a minimum of three judges -- the trial judge and the two judges necessary for an appellate majority. But it is not robust where the appellate court did not reach the specific claim or issue, a process that requires only a single trial judge. For support, Samara cited the Restatement 2d of Judgments, which takes the same position. Rest. 2d Judgments, Section 27, comment o. 2018 DJDAR at 6184. In response to the criticism that its ruling would spawn more litigation by allowing grounds not specifically affirmed by an appellate court (the issues B, C and D of the world) to be relitigated, the court offered two rejoinders: That criticism ignored that Skidmore's rule itself put "pressure on appellate courts to review alternative grounds as a matter of course" (to ensure that preclusive effect is only conferred upon fully adjudicated issues), and it overlooked the more general maxim that saving judicial time should not come "at the expense of fairness, accuracy, and the integrity of the judicial system." Id. at 6185-86.

Samara's holding and rationale touch on a more fundamental question: To what extent do procedural rules affect how trial and appellate courts decide the cases before them?

How might Samara's rule incentivize appellate courts? Appellate courts typically decide no more than they need to in order to resolve an appeal. Will Samara's rule giving preclusive effect only to issues actually affirmed prompt appellate courts to decide more? Or will it instead prompt them to decide differently, perhaps by affirming on grounds that are more broadly applicable and thus more likely to have greater preclusive effect (e.g., no contract or duty at all, rather than a plaintiff-specific procedural bar)? Because appellate courts may affirm on any ground supported by the record -- even if not ruled on by the trial court -- as long as they give the parties the chance to brief the issue, People v. Chism, 58 Cal. 4th 1266, 1295 n.12 (2014), it may be possible that two (appellate) judges may be enough to decide a claim or issue finally.

And how might Samara's rule incentivize trial courts? Trial courts typically provide multiple, alternative grounds for their rulings; doing so makes their rulings more complete and more "bulletproof" on appeal (by offering multiple bases upon which to affirm). Will Samara's rule granting preclusive effect only to issues actually affirmed on appeal prompt trial courts to offer fewer grounds for their rulings? There may already be incentive to do so. Some jurisdictions follow a rule -- espoused by the Restatement 2d of Judgments -- that a trial court's reliance on multiple, independent grounds renders neither of them preclusive (at least absent an appeal affirming one of them). Halpern v. Schwartz, 426 F.2d 102, 104-05 (2d Cir. 1970); see also Restatement 2d Judgments, Section 27, comment i; id., Section 20, comment e. Samara specifically declined to say whether this rule applies in California. Are rules, like these, that encourage trial judges to offer fewer justifications for their decisions a good idea? Do they lead to more focused rulings, or instead lead to a "ping pong" between the trial and appellate courts as they consider the validity of one ground at a time?

The appellate courts will no doubt puzzle over the riddles left in Samara's wake in the years to come. But until they are finally resolved by three judges, they are wide open for litigation (and relitigation).