Sartor v. Superior Court

• Decision Date: 06 October 1982
• Citation: 187 Cal.Rptr. 247,136 Cal.App.3d 322
• Court: California Court of Appeals Court of Appeals
• Parties: Dale A. SARTOR et al., Petitioners, v. SUPERIOR COURT of the State of California, In and For the COUNTY OF MARIN, Respondent, Edna Irene JEFFREY and Kent Allen Jeffrey, Real Parties in Interest. Civ. 54568.

Page 247

187 Cal.Rptr. 247

136 Cal.App.3d 322

Dale A. SARTOR et al., Petitioners, v. SUPERIOR COURT of the State of California, In and For the COUNTY OF MARIN, Respondent Edna Irene JEFFREY and Kent Allen Jeffrey, Real Parties in Interest.

Civ. 54568.

Court of Appeal, First District, Division 2, California.

Oct. 6, 1982.

Paul J. Sanner, Shand S. Stephens, Robert J. Stumpf, Bronson, Bronson & McKinnon, San Francisco, for petitioners.

Michael B. Moore, Cartwright, Sucherman, Slobodion & Fowler, Inc., San Francisco, for Real Parties In Interest.

ROUSE, Acting Presiding Justice.

Petitioners Dale Sartor, Thomas Butt and John Clinton, defendants in this action, seek a writ of mandate to compel respondent court to vacate its order denying their motion for summary judgment and to enter an order granting their motion. ¹

The action was commenced by real parties in interest, Edna and Kent Jeffrey, as plaintiffs, against Interactive Resources, Inc. (Interactive), a California corporation engaged in the rendition of architectural and engineering services, and the three petitioners, who are alleged to be agents and employees of the corporation. The amended complaint alleged that, in 1974, real parties were induced to enter into an agreement with Interactive for services rendered in connection with the building of a house in Kentfield, and that the house was defective in various respects. Real parties sought damages based on fraud, negligence, breach of contract, and warranty.

The contract, which was signed by Edna Jeffrey and Interactive, contained an arbitration clause (art. 11) providing for arbitration in accordance with American Arbitration Association rules and covered "All claims, disputes and other matters in question between the parties to this Agreement, arising out of, or relating to this Agreement or the breach thereof ...." The clause further provided that "No arbitration, arising out of, or relating to this Agreement, shall include, by consolidation, joinder or in any other manner, any additional party not a party to this Agreement except by written consent containing a specific reference to this Agreement and signed by all the parties hereto."

On the basis of these provisions, the trial court ordered the matter stayed pending arbitration between Edna Jeffrey and Interactive. On June 8, 1978, the arbitrator rendered an award, stating, in relevant part: "A charge of fraud against INTERACTIVE RESOURCES, INC. has not been sustained. INTERACTIVE RESOURCES, INC. shall pay to Edna Jeffrey the sum of ONE THOUSAND DOLLARS ($1,000.00) for removal and replacement of defective gaskets in the solar collector." On November 2, 1978, Mrs. Jeffrey petitioned the court to confirm the award.

On December 29, 1978, respondent court tendered a minute order granting confirmation. In the same minute order, the trial court denied a motion by Interactive to dismiss the individual defendants, petitioners herein, noting that there had been no showing that the individual defendants had been joined in the arbitration proceeding, and that there was nothing before the court upon which a finding could be made as to whether the arbitrator made findings as to their fraud. On January 8, 1979, respondent court entered judgment confirming the arbitration award and lifting the stay which had previously been issued.

On October 5, 1981, the individual defendants, petitioners herein, moved for summary judgment on the grounds that the arbitration award had adjudicated all of the issues material to the individual defendants' liability, and that the doctrine of collateral estoppel prevented real parties from "relitigating" those issues in the superior court. In support of their motion, petitioners attached a declaration from the arbitrator, which appears as an exhibit to the motion. In his declaration the arbitrator identified an accompanying exhibit of some 33 pages as his "notes and findings" with respect to the arbitration, prepared by him subsequent to the taking of testimony and prior to the issuance of his award. Real parties submitted no contradictory declarations in opposition to the motion but argued that the declaration of the arbitrator and his attached notes should be stricken as improper.

On November 25, 1981, respondent court entered a minute order denying the motion for summary judgment. Petitioners had also moved to sever the collateral estoppel issue, and the court denied that motion as well.

Petitioners contend that the principles of collateral estoppel preclude "relitigation" of real parties' complaints against them.

In Bernhard v. Bank of America (1942) 19 Cal.2d 807, 122 P.2d 892, the California Supreme Court abandoned the requirement that the plea of res judicata is available only when there is privity and mutuality of estoppel, noting that the courts of most jurisdictions had recognized broad exceptions, "namely, that they are not necessary where the liability of the defendant asserting the plea of res judicata is dependent upon or derived from the liability of one who was exonerated in an earlier suit brought by the same plaintiff upon the same facts." (P. 812, 122 P.2d 892.)

The court stated: "Typical examples of such derivative liability are master and servant, principal and agent, and indemnitor and indemnitee. Thus, if plaintiff sues a servant for injuries caused by the servant's alleged negligence within the scope of his employment, a judgment against the plaintiff on the grounds that the servant was not negligent can be pleaded by the master as res judicata if he is subsequently sued by the same plaintiff for the same injuries. Conversely, if the plaintiff first sues the master, a judgment against the plaintiff on the grounds that the servant was not negligent can be pleaded by the servant as res judicata if he is subsequently sued by the plaintiff. In each of these situations the party asserting the plea of res judicata was not a party to the previous action nor in privity with such a party under the accepted definition of a privity set forth above. Likewise, the estoppel is not mutual since the party asserting the plea, not having been a party or in privity with a party to the former action, would not have been bound by it had it been decided the other way. The cases justify this exception on the ground that it would be unjust to permit one who has had his day in court to reopen identical issues by...