Sandoval v. Superior Court

• Decision Date: 16 March 1983
• Citation: 190 Cal.Rptr. 29,140 Cal.App.3d 932
• Court: California Court of Appeals Court of Appeals
• Parties: Jesus Sidronio Gomez SANDOVAL, Petitioner, v. SUPERIOR COURT OF KINGS COUNTY, Respondent; DEERE & COMPANY et al., Real Parties in Interest. Civ. 7437.

Page 29

190 Cal.Rptr. 29

140 Cal.App.3d 932

Jesus Sidronio Gomez SANDOVAL, Petitioner, v. SUPERIOR COURT OF KINGS COUNTY, Respondent;

DEERE & COMPANY et al., Real Parties in Interest.

Civ. 7437.

Court of Appeal, Fifth District, California.

March 16, 1983.

As Modified March 31, 1983.

[140 Cal.App.3d 934] Bruce Albion Bailey, Gregory T. Price and Rudy L. Savala, Burlingame, for petitioner.

No appearance for respondent.

Cooley, Godward, Castro, Huddleson & Tatum, Thomas A.H. Hartwell, Craig H. Casebeer and John B. Bates, Jr., San Francisco, for real parties in interest.

OPINION

FRANSON, Acting Presiding Justice.

Introduction

Two pretrial questions are presented in this products liability case alleging a design defect in the defendant manufacturer's product: (1) whether a "final" judgment was entered in a prior action involving the same defendant and another plaintiff so as to permit the application of the collateral estoppel doctrine? and (2) assuming the first question is answered in the affirmative, whether the collateral estoppel doctrine should be applied to preclude the defendant from relitigating the design defect issue in the present action? The prior action was the first action against the defendant resulting in a jury determination that the product was defective in design; however, there have since been two jury verdicts in other separate actions--one against and one in favor of the defendant on the design defect issue.

We answer the first question in the affirmative and the second question in the negative. Accordingly, the writ is denied.

Procedural History

Petitioner seeks damages for personal injuries sustained when he became entangled in a model No. 9900 cotton picking machine manufactured by real parties in interest Deere & Company and John Deere Company (hereinafter Deere). Petitioner alleges the machine is defective in design because it was not equipped with an emergency shutoff switch at ground level which a person entangled in the machine could use to turn off the power. Deere defends the design on the theory that if a shutoff switch were placed at ground level it would encourage the operator to leave the cab without turning off the power contrary to an explicit warning sign posted in the cab.

In June 1982, petitioner moved for partial summary adjudication of the issues, asserting that Deere was barred by collateral estoppel from contesting the equipment was defective because of a judgment entered in an identical case against Deere tried in the San Francisco Superior Court in July 1980 in the action Floyd A. Demanes, Special Administrator of the Estate of William Don Gilbert, deceased, et al., v. John Deere Company, et al. (Super.Ct. San Francisco, No. 701849; 1 Civ. 52728, app. dism., hereinafter Demanes).

In Demanes, the jury found by special verdict that the Deere cotton picker was defective in design because of the absence of the shutoff switch at ground level and that the defect was the proximate cause of the decedent's death. The jury awarded $262,500 to the administrator Demanes for the wrongful death of the decedent Gilbert after adjusting for the comparative fault of the decedent and his employer (fixed at 25 percent of the total award of $350,000, less worker's compensation liens). The special verdict and a judgment thereon was entered and filed on July 25, 1980.

Deere appealed from the judgment and during the pendency of the appeal, the parties reached a settlement agreement. Pursuant to this agreement entitled "Receipt and Release in Full," Deere agreed to pay $218,837 to the administrator Demanes and to withdraw its appeal. The plaintiffs agreed to give a full release to Deere. The agreement provided that Deere "disclaim[ed] any liability of any kind whatsoever" and the parties agreed to "settle this matter in order to avoid the further expense, inconvenience and distraction of litigation." The agreement further provided that it was "a compromise settlement of a disputed claim and the payment and withdrawal of the Appeal in consideration of this release shall not be construed to be an admission of liability." Finally, the plaintiffs agreed to dismiss their action against Deere with prejudice. The appeal was ordered dismissed by the appellate court on November 9, 1981.

In the instant action, Deere opposed petitioner's motion for summary adjudication of the issue of the defective design of the product on the ground that none of the requirements for application of collateral estoppel was present. The trial court denied the motion on the ground that the Demanes action was never final. ¹

On August 26, 1982, petitioner filed a petition for writ of mandate challenging the trial court's denial of the motion for partial adjudication of the issues. We issued the present order to show cause.

A "Final" Judgment for Issue Preclusion Purposes in Later Actions Against Deere Was Entered in the Demanes Case

The Restatement Second of Judgments explains the concept of judgment finality for issue preclusion purposes:

"The rules of res judicata are applicable only when a final judgment is rendered. However, for purposes of issue preclusion (as distinguished from merger and bar), 'final judgment' includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect." (Rest.2d Judgments, § 13, emphasis added.)

This section "makes the general commonsense point that such conclusive carry-over effect should not be accorded a judgment which is considered merely tentative in the very action in which it was rendered. On the contrary, the judgment must ordinarily be a firm and stable one, the 'last word' of the rendering court --a 'final' judgment. (Id., § 13, com. a, emphasis added.)

As emphasized by the Restatement, it is important to determine whether a judgment is "final" for purposes of appellate review or merger and bar, as distinguished from issue preclusion in subsequent actions. (Rest.2d Judgments, § 13, com. b.) The requirement of finality of judgment is interpreted strictly, as indicated above, when considered for purposes of appellate review or application of bar or merger. Issue preclusion, however, is a different matter. "But to hold invariably that that kind of carry-over is not to be permitted until a final judgment in the strict sense has been reached in the first action can involve hardship--either needless duplication of effort and expense in the second action to decide the same issue, ..." (Id., § 13, com. g.) The Restatement cautions: "Before [giving carry-over effect], the court should determine that the decision to be carried over was adequately deliberated and firm, even if not final in the sense of forming a basis for a judgment already entered. Thus preclusion should be refused if the decision was avowedly tentative. On the other hand, that the parties were fully heard, that the court supported its decision with a reasoned opinion, that the decision was subject to appeal or was in fact reviewed on appeal, are factors supporting the conclusion that the decision is final for the purpose of preclusion." (Ibid.) We would add an additional factor: if a judgment for the plaintiff is settled on appeal favorably to the plaintiff, the decision may be final for issue preclusion purposes provided the other factors of certainty and firmness are satisfied.

Although California law is settled that pending appeal a trial court judgment is not final and will not be given res judicata effect (Code Civ.Proc., § 1049), ² once the appeal is settled favorably to the plaintiff and thereafter dismissed, the Restatement analysis and reason itself dictate that the trial court judgment reemerges with sufficient finality to permit the application of collateral estoppel.

A prior decision of this court supports such a holding. In Louie Queriolo Trucking, Inc. v. Superior Court (1967) 252 Cal.App.2d 194, 196-200, 60 Cal.Rptr. 389 (hg. den., opn. per Conley, P.J., with Gargano and Stone, JJ. conc.), we held that a retraxit (a settlement in which defendant pays plaintiff money in return for a dismissal with prejudice) following a jury verdict finding the defendant liable amounted to a judgment on the merits in favor of the plaintiff which had sufficient finality for res judicata purposes. In that case a truck driven by Hoeye and owned by Louie Queriolo Trucking fell into an excavation made by the Tumblin Company. Hoeye sued Tumblin for personal injuries. In a bifurcated trial the jury found Tumblin liable because it was negligent. Judgment was prematurely entered on the jury's verdict in the partial trial and Tumblin's motion for new trial was denied. Tumblin's appeal from that judgment was later dismissed. Thereafter, before trial on the damage issue, the parties settled the action with plaintiff agreeing to a dismissal with prejudice in return for monetary consideration.

During pendency of the first action, Queriolo Trucking sued Tumblin for property damage to its truck and contents. Following the disposition of the first action, Queriolo Trucking sought to file a supplemental complaint alleging that the liability issue had been resolved against Tumblin and that Tumblin was estopped from denying its negligence and from asserting the contributory negligence on the part of its driver. The trial court denied Queriolo's motion.

We issued a writ of mandate directing the trial court to permit the supplemental complaint to be filed. Although we found that the judgment on the jury's verdict on the liability phase of the earlier trial had been prematurely entered since the damage phase had not been tried, we concluded the dismissal with prejudice following the settlement of the action amounted to a "judgment covering all issues." (252 Cal.App.2d at p. 200, 60 Cal.Rptr. 389.) The court reasoned that the settlement of the first case, which included a payment by the defendant to the plaintiff, was a retraxit "and was equivalent to...