SIXTH BIG TOPIC: PRECLUSION

Question 1

If Case 2 is in a different court system (e.g., federal or state) from Case 1, which system’s law applies regarding claim and issue preclusion?

Answer 1

It is the system that decided case 1.

Question 2

So Case 1 is in federal court, where judgment is entered. Case 2 is in California state court. What law of claim and issue preclusion does the state court judge use?

Answer 2

Federal law

Question 3

Suppose the judgment in Case 1 has been appealed (or the time for appealing has not yet expired). Is that judgment entitled to claim or issue preclusion effect? (federal? state?)

Answer 3

Federal: Yes

State Law: no

Question 4

Claim and issue preclusion are affirmative defenses, so defendant should raise them in her

Answer 4

answer

Question 5

Claim and issue preclusion are affirmative defenses, so defendant should raise them in her answer. How is the issue often presented on the bar exam?

Answer 5

It is a motion for summary judgment because there is not dispute of fact.

Question 6

What is claim preclusion also known as?

Answer 6

res judicata

Question 7

what does res judicata/issue preclusion stand for?

Answer 7

stands for the proposition that you only get to sue on a cause of action (or claim) once. So if you have a cause of action (or claim) you only get one case in which to vindicate all rights to relief for it.

Question 8

What are the requirements of res judicata?

Answer 8

1. Case 1 and Case 2 were brought by the same claimant against the same defendant.
   (Note: not just same parties, but same guy suing the same guy in both cases.)
2. Case 1 ended in a valid final judgment on the merits
3. Case 1 and Case 2 asserted the same cause of action (or claim).

Question 9

General rule: Unless the court said otherwise when it entered the judgment, any judgment is “on the merits” UNLESS it was based on what?

Answer 9

jurisdiction, venue, or indispensable parties.

Question 10

is a default judgment “on the merits”?

Answer 10

yes

Question 11

Is a judgment based upon discovery abuse “on the merits”?

Answer 11

yes

Question 12

Under federal law what does a claim mean?

Answer 12

From same transaction or occurrence.

Question 13

in CA law you get a cause of action for what?

Answer 13

you get one “cause of action” for each right invaded

Question 14

if a single accident caused both personal injuries and property damage how many claims would you have in CA?

Answer 14

2

Question 15

California law: you get one “cause of action” for each right invaded. So if a single accident caused both personal injuries and property damage, there would be two causes of action – one for the body and one for the property. What is this theory called?

Answer 15

Primary rights

Question 16

P sues D for personal injuries sustained in an auto collision. A valid final judgment on the merits is entered. Case 2: P sues D for property damage from the same crash. Should the court enter summary judgment for D in Case 2 under the
doctrine of claim preclusion? Do the analysis.for state and federal.

Answer 16

1. both cases were brought by the same claimant against the same defendant
2. Case 1 ended in a valid final judgement on the merits
3. Both cases involve the same claim (yes they arise form same T/O [fed]) or cause of action (no [state], different primary rights)

So would have claim preclusion in Federal court but not in state court

Question 17

P and D are parties to a contract under which D is required to make monthly payments. When P files Case 1, D has failed to make six such payments. Under federal and California law, are there six separate claims here or only one claim or cause of action?

Answer 17

There is one, it consists of all breaches up to the time of filing.

Question 18

Is issue preclusion or claim preclusion more narrow?

Answer 18

Issue preclusion is more narrow.

Question 19

What is issue preclusion also known as?

Answer 19

Collateral Estoppel

Question 20

What does Collateral Estoppel do?

Answer 20

It precludes relitigation of a particular issue litigated and determined before. That issue is deemed established in Case 2, so it cannot be relitigated.

Question 21

What are the collateral estoppel requirements?

Answer 21

1. Case 1 ended in a valid, final judgment on the merits.
2. The same issue was actually litigated and determined in Case 1.
3. The issue was essential to the judgment in Case 1. Without this issue, the judgment in Case 1 would have been different.
4. the issue is being a asserted against someone who was a party to case 1.
5. The party had a full chance to litigate in case 1. (differs in offensive and defensive non-mutual issue preclusion)

Question 22

Against whom can issue preclusion be asserted?

Answer 22

Only against one who was a party to Case 1 (or who was represented by a party).

Question 23

Against whom can issue preclusion be asserted? Only against one who was a party to Case 1 (or who was represented by a party). What is this required by?

Answer 23

Due process

Question 24

Will you get issue preclusion if there is a default judgment?

Answer 24

Probably not,because you probably did not litigate anything.

Question 25

traditionally whom can issue preclusion be asserted?

Answer 25

Traditionally, only somebody who was a party to Case 1 could use preclusion in Case 2. This is called “mutuality.” But it is not required by due process, so it can be abandoned.

Question 26

Modern law abandons mutuality in some situations. This allows “nonmutual” issue preclusion. All that means is preclusion is used BY somebody in Case 2 who was not a _____ to Case 1.

Answer 26

party

Question 27

What kind of defensive issue preclusion is used by one who was not a party in Case 1, and who is D in Case 2?

Answer 27

Nonmutual defensive issue preclusion

Question 28

DJ, driving Becky’s car, is involved in a collision with Joey. Assume Becky is vicariously liable for DJ’s acts. Case 1: Joey sues DJ. DJ wins, based on a finding that Joey was negligent, which caused the wreck. The court enters final judgment for DJ. Case 2: Joey sues Becky. Can Becky assert issue preclusion as to the finding of Joey’s negligence?
Do the analysis.

Answer 28

1. Case 1 ended in a final judgment
2. the same issue of Joey’s negligence was litigated and determined in case 1
3. the issue was essential to the judgment in case 1
4. the issue preclusion is being asserted against someone who was a party to case 1.
5. Joey had a full chance to litigate in case 1 (mutuality no longer required)

Question 29

DJ, driving Becky’s car, is involved in a collision with Joey. Assume Becky is vicariously liable for DJ’s acts. Case 1: Joey sues DJ. DJ wins, based on a finding that Joey was negligent, which caused the wreck. The court enters final judgment for DJ. Case 2: Joey sues Becky. What kind of preclusion should Becky use?

Answer 29

non mutual defensive preclusion.

Question 30

what is the type of offensive issue preclusion used by one who was not a party in Case 1, and who is P in Case 2?

Answer 30

Nonmutual offensive issue preclusion

Question 31

DJ, driving Becky’s car, is involved in a collision with Joey. Assume Becky is vicariously liable for DJ’s acts. Case 1: Joey sues DJ. DJ wins, based on a finding that Joey was negligent, which caused the wreck. The court enters final judgment for DJ. Case 2: Becky sues Joey. She sues to impose upon Joey liability for damage to her car from the wreck Joey had with DJ. Becky wants to assert collateral estoppel as to the finding in the first case that Joey was negligent. Can she?

Answer 31

1. Case 1 ended in a final judgment
2. the same issue of Joey’s negligence was litigated and determined in case 1
3. the issue was essential to the judgment in case 1
4. the issue preclusion is being asserted against someone who was a party to case 1.
5. Non mutual is allowed if:
   (a) Joey had a full and fair opportunity to litigate in Case 1;
   (b) Joey could foresee multiple suits;
   (c) Becky could not have joined easily in Case 1; and
   (d) There are no inconsistent judgments on record. If there had been multiple litigation, and sometimes Joey was found negligent and sometimes not, it would be unfair to let Becky get issue preclusion on a negligence finding.

Question 32

When do federal and California law allow non-mutual offensive issue preclusion?

Answer 32

(1) The party had a full and fair opportunity to litigate in Case 1;
(2) The party could foresee multiple suits;
(3) the non-mutual party seeking offensive non-mutual issue preclusion could not have joined easily in Case 1; and
(4) There are no inconsistent judgments on record. If there had been multiple litigation, and sometimes the party in case 1 was found negligent and sometimes not, it would be unfair to let the non-mutual party seeking offensive non-mutual issue preclusion get issue preclusion on a negligence finding.