Filed 6/25/18




      IN THE SUPREME COURT OF CALIFORNIA


RANA SAMARA,                        )
                                    )
     Plaintiff and Appellant,       )
                                    )                              S240918
     v.                             )
                                    )                       Ct.App. 2/7 B265752
HAITHAM MATAR,                      )
                                    )                       Los Angeles County
     Defendant and Respondent.      )                     Super. Ct. No. EC056720
____________________________________)


        When a trial court judgment rests on more than one ground, it may be
impossible for a losing party to obtain appellate review of all of the court’s
determinations. In a breach of contract action, for example, a trial court might
grant a defense motion for summary judgment because no contract was formed,
and because in any event there was no breach. On direct review, an appellate
court could affirm if either of those conclusions was correct, without resolving or
even considering the other one. Thus, a plaintiff who argues on appeal that there
was a contract (and that the contract was breached) might lose based on a lack of
breach without appellate review of whether a contract existed in the first place.
        This case concerns the claim- and issue-preclusive significance, in future
litigation, of a conclusion relied on by the trial court and challenged on appeal, but
not addressed by the appellate court. We hold that the preclusive effect of the
judgment should be evaluated as though the trial court had not relied on the




                                          1
unreviewed ground. Our contrary decision in People v. Skidmore (1865) 27
Cal. 287 (Skidmore) is overruled.
                                   I. BACKGROUND

       A. Claim and Issue Preclusion
       The law of preclusion helps to ensure that a dispute resolved in one case is
not relitigated in a later case. Although the doctrine has ancient roots (see Note,
Developments in the Law: Res Judicata (1952) 65 Harv. L.Rev. 818, 820-822), its
contours and associated terminology have evolved over time. We now refer to
“claim preclusion” rather than “res judicata” (Mycogen Corp. v. Monsanto Co.
(2002) 28 Cal.4th 888, 896-897 (Mycogen)), and use “issue preclusion” in place of
“direct or collateral estoppel” (Migra v. Warren City School Dist. Bd. of Educ.
(1984) 465 U.S. 75, 77, fn. 1; see Vandenberg v. Superior Court (1999) 21 Cal.4th
815, 824 (Vandenberg)).1
       Claim and issue preclusion have different requirements and effects. Claim
preclusion prevents relitigation of entire causes of action. (Mycogen, supra¸
28 Cal.4th at p. 896; see also id., at p. 904 [discussing “primary right theory,”
which defines the scope of a cause of action].) Claim preclusion applies only
when “a second suit involves (1) the same cause of action (2) between the same
parties [or their privies] (3) after a final judgment on the merits in the first suit.”


1       We also avoid using “ ‘res judicata’ as an umbrella term” capable of
referring to claim preclusion, issue preclusion, or both. (DKN Holdings v. Faerber
(2015) 61 Cal.4th 813, 823 (DKN Holdings); see Lucido v. Superior Court (1990)
51 Cal.3d 335, 341, fn. 3 (Lucido).) Even the more modern terminology of
“claim” and “issue” preclusion can be further refined. (See, e.g., Standefer v.
United States (1980) 447 U.S. 10, 21 [describing “nonmutual” issue preclusion];
Parklane Hosiery Co., Inc. v. Shore (1979) 439 U.S. 322, 329 [distinguishing
“offensive” and “defensive” issue preclusion].) But for present purposes, “claim”
and “issue” preclusion will suffice.



                                            2
(DKN Holdings, supra, 61 Cal.4th at p. 824.) Issue preclusion, by contrast,
prevents “relitigation of previously decided issues,” rather than causes of action as
a whole. (Ibid.) It applies only “(1) after final adjudication (2) of an identical
issue (3) actually litigated and necessarily decided in the first suit and (4) asserted
against one who was a party in the first suit or one in privity with that party.”
(Id., at p. 825.) Courts have understood the “ ‘necessarily decided’ ” prong to
“require[] only that the issue not have been ‘entirely unnecessary’ to the judgment
in the initial proceeding” (Lucido, supra, 51 Cal.3d at p. 342) — leaving room for
a decision based on two grounds to be preclusive as to both.

       B. Facts and Procedural History
       Plaintiff Rana Samara was missing a tooth. Dr. Haitham Matar
recommended that she receive a dental implant, and Dr. Stephen Nahigian
performed the implantation surgery. Samara later sued them both for professional
negligence. Our focus is Samara’s contention that defendant Matar is vicariously
liable for former defendant Nahigian’s alleged tort.

           1. First judgment, in favor of Nahigian
       Nahigian moved for summary judgment. He argued, in pertinent part, that
the suit against him was untimely and that he did not cause Samara’s alleged
injuries. The trial court agreed that the suit was untimely with respect to Nahigian
(unlike Matar) and further agreed that no material factual dispute prevented
judgment in Nahigian’s favor on the issue of causation. The court entered
judgment on both grounds.
       Samara appealed. She conceded that the judgment against her could be
affirmed based on the statute of limitations. Concerned about the potential
preclusive effect of the trial court’s determination regarding a lack of causation,
however, she urged the Court of Appeal to reverse that portion of the trial court’s



                                           3
decision. The Court of Appeal declined to do so in an unpublished opinion,
stating, “We need not, and do not, reach the court’s alternative ground for granting
summary judgment.” It added, “Because the question is not before us, we also do
not address whether collateral estoppel may be used with regard to an alternative
ground for judgment not reviewed by the appellate court.”

           2. Second judgment, in favor of Matar
       Around the time Samara noticed an appeal from the first judgment, Matar
moved for summary judgment in the trial court. As relevant here, Matar argued
that the court’s earlier no-causation determination precluded holding him liable for
Nahigian’s conduct. After the remittitur issued in the first appeal, the trial court
agreed, granting Matar’s motion for summary judgment. Although the particulars
of the trial court’s reasoning are not entirely clear, the core of its rationale was that
because Nahigian was not liable to Samara for his conduct, Matar could not be
liable for that conduct vicariously.
       The Court of Appeal, in an opinion issued by the same panel that decided
the first appeal, reversed and remanded the matter. It concluded that preclusion
provided no basis for the trial court’s decision. The court’s analysis of claim
preclusion focused on whether there had been “a final judgment on the merits in
the first suit.” (DKN Holdings, supra, 61 Cal.4th at p. 824.) The court observed
that the prior judgment was affirmed solely because of the statute of limitations,
which the court believed to be a “purely procedural ground” rather than a decision
on the merits. Nevertheless, the court acknowledged that under our decision in
Skidmore, supra, 27 Cal. 287, a judgment on the merits affirmed on purely
procedural grounds might qualify as a judgment on the merits in the relevant
sense. Noting that “the Supreme Court [of California] might want to address” the
continuing vitality of the “Civil War-era” Skidmore decision, the Court of Appeal



                                            4
instead ruled that claim preclusion was unavailable because Samara sued Nahigian
and Matar in a single lawsuit, rather than two successive suits. The court further
held that Skidmore was inapplicable to issue preclusion, concluding that “an
affirmance on an alternative ground operates as collateral estoppel/issue
preclusion only on the ground reached by the appellate court.”
       We granted Matar’s petition for review. He contends that the Court of
Appeal’s claim- and issue-preclusion analysis is inconsistent with Skidmore and
asks us to “address the viability of” that 1865 decision. Because we conclude that
Skidmore must be overruled, we agree with the Court of Appeal that Matar is not
entitled to summary judgment on preclusion grounds.
                            II. SKIDMORE’S VIABILITY

       A. The Skidmore Decision
       To contextualize Skidmore’s analysis of the preclusive effect of a particular
judgment, we begin by describing the litigation resulting in that judgment.
       Walter Skidmore was charged with murder. (Skidmore, supra, 27 Cal. at
p. 289.) To secure his appearance to answer the charge, Skidmore and his sureties
entered into a recognizance, something roughly akin to a bail bond. (See ibid.)
Skidmore also created a trust for his sureties’ financial protection, pledging
property toward the payment and extinguishment of the recognizance should he
fail to appear. (People v. Skidmore (1861) 17 Cal. 260, 261; unless otherwise
noted, all short-form Skidmore citations concern the 1865 appellate decision.)
After he failed to appear, the People sued. (Ibid.) The suit sought equitable relief
against the trustee, urging that the property held in trust “be applied to the debt due
by the recognizance.” (Ibid.; see also Skidmore, supra, 27 Cal. at p. 289.) The
trial court entered judgment against the People, and the People appealed.




                                          5
       We affirmed. (People v. Skidmore, supra, 17 Cal. at p. 262 [initial
appeal].) Our opinion addressed a demurrer based on “a misjoinder of causes of
action, among other [objections].” (Id., at p. 261.) Declining to reach those other
objections, we agreed that there had been a misjoinder: “It may be that the
sureties will not be held liable at all; or it may be, if they are, that they are ready
and willing to pay whenever their liability is declared; and in that case, there
would be no necessity of coming upon this fund. If, after judgment, the
defendants are insolvent, another question might arise, or the question might arise
of a right to sell or subject this property as the property of Skidmore. But it is not
necessary to pass upon this matter in advance of the proper stage of the inquiry.”
(Id., at p. 262.) “The effect of the judgment and of this affirmance,” we added,
“will not be to preclude the plaintiff from suing again when the cause of action can
be more formally set out.” (Ibid.)
       A second suit followed. (See Skidmore, supra, 27 Cal. at p. 289.) In the
decision at the core of this case, we held that the People’s claim was barred. In
determining whether the decision in the first case barred the second suit, we
treated as dictum our earlier statement that the first suit would not preclude a
second one (id., at p. 293) and deemed the dispositive issue whether the judgment
in the first suit was “based upon the merits” (id., at p. 289). We concluded that it
was. (Id., at p. 294.) The judgment entered by the trial court, we reasoned, was
“based upon the merits of the claim, and not upon the dilatory matters raised by
the demurrer nor any other mere technical defect.” (Ibid.) And although our
affirmance had been limited to the misjoinder problem — a non-merits issue —
we noted that we had not reversed or modified the trial court’s judgment. (Id., at
pp. 292-293.) As we explained, “in examining the judgment in connection with
the errors assigned, [we] found that there was at least one ground upon which the
judgment could be justified, and therefore very properly refrained from

                                            6
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 when
it was entered in the court below. [We] found no error in the record, and therefore
not only allowed it to stand, but affirmed it as an entirety, and by direct
expression.” (Ibid.) Treating “the judgment rendered in the first action . . . now as
it was in the beginning,” we held that the People’s claim was barred. (Id., at
p. 293.) In doing so, we allowed a trial court’s ruling to determine the preclusive
effect of the judgment, without regard for whether that ruling was addressed on
appeal.
       Courts considering Skidmore have disagreed about whether its precedential
force extends to issue preclusion. (Compare, e.g., Zevnik v. Superior Court (2008)
159 Cal.App.4th 76, 86 (Zevnik) [no] with, e.g., Diruzza v. County of Tehama (9th
Cir. 2003) 323 F.3d 1147, 1153 (Diruzza) [yes].) It might be argued that Skidmore
addressed only claim preclusion and that requirements unique to issue preclusion
make Skidmore inapplicable in that context. (See, e.g., Zevnik, at p. 86 [“Skidmore
involved res judicata rather than collateral estoppel and therefore is not on
point”].) Skidmore, however, cannot be so easily limited. It is not enough to
observe, for example, that issue preclusion applies only to issues “actually
litigated and necessarily decided in the first suit” (DKN Holdings, supra, 61
Cal.4th at p. 825; see Zevnik, 159 Cal.App.4th at p. 88), because it matters which
court’s decision is the focus of the inquiry. If, as in Skidmore, the focus of the
preclusion inquiry is the trial court’s decision, then an issue might have been
“actually litigated and necessarily decided” (DKN Holdings, at p. 825) whether or
not an appellate court agreed with the trial court’s disposition of the issue.
       We need not decide exactly what Skidmore means for the law of issue
preclusion. (Cf. Moss v. Superior Court (1998) 17 Cal.4th 396, 401 [disapproving
a prior decision “insofar as it might be read to apply” to certain orders]; People v.

                                           7
Carbajal (1995) 10 Cal.4th 1114, 1126 [disapproving a prior decision “insofar as
[it] may be read” in a particular way].) For present purposes, it is enough to say
that Skidmore’s focus on the trial court’s decision, without regard for the basis of
the appellate court’s affirmance, could reasonably be understood to bear on the
issue preclusion inquiry. (See Diruzza, supra, 323 F.3d at p. 1153; see also
People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549,
1574-1575 [suggesting that Skidmore was relevant to issue preclusion, but
refusing to follow it]; Newport Beach Country Club, Inc. v. Founding Members of
Newport Beach Country Club (2006) 140 Cal.App.4th 1120, 1130-1132 [same].)

       B. Skidmore’s Aftermath
       Although Skidmore has not been widely cited, there was once broad support
for the view that the preclusive effect of an affirmed judgment should be
determined without regard for the basis of the affirmance. (See, e.g., Bank of
America v. McLaughlin etc. Co. (1940) 40 Cal.App.2d 620, 628-629; State ex rel.
Squire v. City of Cleveland (Ohio 1937) 22 N.E.2d 223, 225-226; Kinsley Bank v.
Woods (Mo.Ct.App. 1934) 78 S.W.2d 148, 149; Russell v. Russell (3d Cir. 1905)
134 F. 840, 840-841; Town of Fulton v. Pomeroy (Wis. 1901) 831, 832-834; Finch
v. Hollinger (1877) 46 Iowa 216, 217-218; but see, e.g., Moran Towing &
Transportation Co. v. Navigazione Libera Triestina, S.A. (2d Cir. 1937) 92 F.2d
37, 40-41.)
       However, courts’ understanding of preclusion has evolved in the more than
150 years since Skidmore was decided. Although no precise turning point can or
must be identified, one influential development occurred in 1942, when the
Restatement First of Judgments diverged from Skidmore’s reasoning. The
Restatement, concerning claim preclusion, conveyed that “[w]here the trial court
bases the judgment for the defendant upon two alternative grounds, one on the



                                          8
merits and the other not on the merits, and an appellate court affirms the judgment
solely on the ground which is not on the merits, the judgment does not bar a
subsequent action by the plaintiff based upon the same cause of action.” (Rest.,
Judgments (1942) § 49, com. c., p. 196; see also Mycogen, supra, 28 Cal.4th at
pp. 896-897 [dividing claim preclusion into “merge[r]” and “bar”].) The
Restatement similarly opined, in passages addressing issue preclusion, that a
judgment affirmed on one of two alternative grounds “is not conclusive in a
subsequent action in which the other ground is in issue” (Rest., Judgments, supra,
§ 68, com. n, p. 308), and that “[i]f the appellate court determines that one of these
grounds is sufficient and refuses to consider whether or not the other ground is
sufficient, and accordingly affirms the judgment, the judgment is conclusive only
as to the first ground” (id., § 69, com. b, p. 316). In short, the Restatement would
evaluate the claim- and issue-preclusive effect of the judgment without regard for
a determination relied upon by the trial court but not embraced on appeal.
       The Restatement Second of Judgments, published in 1982, echoes the
position of the Restatement First of Judgments with respect to issue preclusion.
(See Rest.2d Judgments (1982) § 27, com. o, p. 263.) The second Restatement
does not appear to take an explicit position on the claim preclusive effect of a
judgment affirmed on a non-merits ground, perhaps reflecting aversion to the
terminology “ ‘on the merits[,]’ ” which has “possibly misleading connotations.”
(Id., § 19, com. a, p. 161.) Regardless, the second Restatement conveys that in the
absence of an appeal, a trial court “dismissal . . . based on two or more
determinations, at least one of which, standing alone, would not render the
judgment a bar to another action on the same claim . . . should not operate as a
bar.” (Id., § 20, com. e, p. 172.) Nothing in the second Restatement suggests that
if such a judgment is affirmed solely on grounds that would not trigger claim
preclusion, the judgment should be imbued with claim preclusive effect.

                                          9
       The weight of more recent authority is in accord with these Restatements,
at least with respect to cases in which an appeal has been taken. (See 18 Wright et
al., Fed. Practice and Procedure: Jurisdiction & Related Matters (3d ed. 2016)
§ 4421, p. 619 [“The federal decisions agree with the Restatement view that once
an appellate court has affirmed on one ground and passed over another, preclusion
does not attach to the ground omitted from its decision”]; 18A Wright et al., supra,
§ 4432, p. 60 [“the nature of the ultimate final judgment in a case ordinarily is
controlled by the actual appellate disposition”]; see also, e.g., Omimex Canada,
Ltd. v. State, Dept. of Revenue (Mont. 2015) 346 P.3d 1125, 1129-1130; Tydings
v. Greenfield, Stein & Senior, LLP (N.Y. 2008) 897 N.E.2d 1044, 1046-1047;
Beaver v. John Q. Hammons Hotels, L.P. (Ark. 2003) 138 S.W.3d 664, 666-670;
Stanton v. Schultz (Colo. 2010) 222 P.3d 303, 309; Connecticut Nat. Bank v.
Rytman (Conn. 1997) 694 A.2d 1246, 1254; Humana, Inc. v. Davis (Ga. 1991) 407
S.E.2d 725, 726-727; but see, e.g., Markoff v. New York Life Ins. Co (9th Cir.
1976) 530 F.2d 841, 842 [attempting to discern Nevada law].) Although most of
these authorities concern issue rather than claim preclusion, their refusal to afford
preclusive significance to a trial court determination that evades appellate review
is informative.

       C. Skidmore’s Continuing Vitality

          1. Skidmore reflects a flawed view of preclusion
       We agree with the weight of modern authority that Skidmore’s approach to
preclusion is flawed.
       Rules of claim and issue preclusion are, or at least should be, inextricably
intertwined with rules of procedure. (See Rest.2d Judgments, supra, Introduction,
pp. 5-13.) The law of preclusion reflects a view “that at some point arguable
questions of right and wrong for practical purposes simply cannot be argued any



                                         10
more. It compels repose. In substituting compulsion for persuasion, the law of
[preclusion] trenches upon freedom to petition about grievances and autonomy of
action, very serious concerns in an open society.” (Id., at p. 11.) This finality “has
to be accepted if the idea of law is to be accepted, certainly if there is to be
practical meaning to the idea that legal disputes can be resolved by judicial
process.” (Ibid.) But that does not mean finality should be embraced reflexively,
nor attached to every decision rendered. “The ‘chance’ to litigate is not simply
some unspecified opportunity for disputation over legal rights; it is the opportunity
to submit a dispute over legal rights to a tribunal legally empowered to decide it
according to definite procedural rules.” (Id., at pp. 6-7.) The less robust the
process involved in resolving litigation the first time, the stronger the argument for
permitting litigation once more. (Compare, e.g., Sanderson v. Niemann (1941)
17 Cal.2d 563 [deeming small claims court too informal to support issue
preclusion] with, e.g., Perez v. City of San Bruno (1980) 27 Cal.3d 875, 884-885
[more formal trial on appeal from small claims court judgment can support issue
preclusion].)
       The availability of a direct appeal reflects a sensible determination that the
process culminating in a trial court’s disputed decision is not sufficient to resolve
litigation conclusively. Of course, a litigant’s ability to secure appellate review
may be waived or forfeited, as when a litigant fails to file a timely notice of appeal
or fails to make an objection in the trial court. But when a litigant properly seeks
appellate review of a ground underlying a trial court’s determination, the fortuity
that the judgment may be sustained on some other ground should not imbue the
challenged ground with final and conclusive effect. The challenged ground is no
more reliable — no more deserving of finality — merely because it need not be
evaluated to resolve the appeal. (See Zevnik, supra, 159 Cal.App.4th at p. 85.)



                                           11
       Recall, for example, the hypothetical breach of contract action in which the
trial court concludes that no contract existed, and that even if a contract existed,
the contract was not breached. (See ante, at p. 1.) If an appellate court agrees that
any existing contract was not breached — but does not consider whether any
contract existed in the first place — it would be harsh indeed to bind the plaintiff
to the trial court’s “no contract” determination, preventing the plaintiff from suing
the defendant on the contract even for subsequent conduct that clearly would
constitute a material breach. Perhaps there was a contract, perhaps not. But the
trial court’s answer to that question should not be final merely because the
judgment could be affirmed on another ground. Skidmore’s focus on the trial
court’s reasoning, however, is in tension with this conclusion.
       Skidmore also is in tension with some of our other preclusion case law. We
have repeatedly underscored the important role that the availability of appellate
review plays in ensuring that a determination is sufficiently reliable to be
conclusive in future litigation. We have, for example:
       • Refused to give preclusive effect to a trial court’s legal ruling on child
custody issues presented by writ of habeas corpus, acknowledging that, “[s]ince
an order denying an application for writ of habeas corpus is not appealable,”
finding preclusion would “wrongfully deprive[]” “the unsuccessful petitioner” “of
custody until such time as he could allege a change in circumstances” (In re
Richard M. (1975) 14 Cal.3d 783, 790);
       • Held that a finding made in connection with a cause of action should not
have preclusive effect when the finding was adverse to the party that prevailed on
that cause of action, in part because the party could not appeal (see Albertson v.
Raboff (1956) 46 Cal.2d 375, 384-385);
       • Embraced a rule that an entity cannot be bound by a judgment as a
privy, based on alleged control over the underlying litigation, if the entity lacks

                                          12
control over whether to take an appeal (see Minton v. Cavaney (1961) 56 Cal.2d
576, 581-582);
       • Held that at least a certain type of issue preclusion might not attach to
the decision of a private arbitrator, in part because “the arbitrator’s errors must be
accepted without opportunity for review” (Vandenberg, supra, 21 Cal.4th at
p. 832); and
       • Explained that, when evaluating the preclusive effect of an
administrative determination, “ ‘[t]he opportunity for judicial review of adverse
rulings’ is an important procedural protection against a potentially erroneous
determination and is a factor to consider in determining whether collateral
estoppel [(that is, issue preclusion)] applies. ([Citation]; see also Rest.2d
Judgments, § 28(1), p. 273 [issue preclusion will not apply if the party to be
precluded could not, as a matter of law, obtain review].)” (Murray v. Alaska
Airlines, Inc. (2010) 50 Cal.4th 860, 875-876.)2
       The fundamental problem with Skidmore, then, is that it improperly gave
effect to a trial court determination that evaded appellate review. Our opinion in
the appeal preceding Skidmore considered only whether there had been a
misjoinder of causes of action. We nevertheless held in Skidmore that the
judgment at issue in the first case was “upon the merits,” because of a trial court
determination that we did not embrace on appeal. (Skidmore, supra, 27 Cal. at
p. 293.) More than a century later, and consistent with the modern approach to
preclusion described above, we now conclude that a ground reached by the trial
court and properly challenged on appeal, but not embraced by the appellate court’s

2      Our law’s emphasis on the importance of some form of judicial review is
not limited to the preclusion context. (See generally Powers v. City of Richmond
(1995) 10 Cal.4th 85 [discussing state constitutional right of review].)



                                         13
decision, should not affect the judgment’s preclusive effect. This approach aligns
far better with the recognition that although trial court decisions are often
thorough, thoughtful, and correct, litigants should be afforded more procedural
fairness before being bound by all aspects of a trial court’s challenged
determination.
       Matar contends, however, that Skidmore properly reflects the principle that
a trial court’s judgment is presumptively correct. (See, e.g., Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) This argument confuses two concepts. It is true
that a trial court’s judgment is presumed correct, and so ordinarily will not be set
aside on appeal absent an affirmative showing of reversible error. (See id.; but
see, e.g., Code Civ. Proc., § 128, subd. (a)(8) [stipulated reversals].) But that
principle governs how appellate courts should review trial court determinations; it
does not speak to the preclusive effect, in future litigation, of a challenged trial
court determination that evaded appellate review. The distinction is particularly
clear under California law: Although the presumption of correctness applies while
direct review is ongoing (see Denham, at p. 564), under California law, an
unsatisfied trial court judgment has no preclusive effect until the appellate process
is complete (see, e.g., Agarwal v. Johnson (1979) 25 Cal.3d 932, 954; Brown v.
Campbell (1893) 100 Cal. 635, 646-647).
       Matar also argues that affording preclusive effect to a trial court’s
alternative (but ultimately unnecessary) determination would reduce litigation,
thereby promoting judicial economy. We are not so sure. “While the rules of
preclusion are supported in part by considerations of efficiency, affording the
possibility of reconsideration is also a matter of efficiency, for it relaxes the
requirements of procedural meticulousness in the first instance.” (Rest.2d
Judgments, supra, Introduction, p. 12.) To hold that an unreviewed alternative
ground has preclusive effect “would put pressure on appellate courts to review

                                           14
alternative grounds as a matter of course . . . .” (Zevnik, supra, 159 Cal.App.4th at
p. 85 [discussing issue preclusion].) Thus, “[a]ny benefit that might result from
precluding” relitigation in future cases — cases “which may or may not arise” —
“would come at the cost of increasing the burden on the appellate court in the
initial action.” (Ibid.)
       Nor is it clear that affording preclusive effect to such an alternative ground
would protect parties from the burdens of litigation, as Matar also argues. If all
unreversed trial court determinations must be given preclusive effect, then
nonparties, armed with the issue preclusive effect of the trial court’s unreviewed
determination, may be encouraged to engage in litigation with the party bound by
the effectively unappealable determination. (Cf. Vandenberg, supra, 21 Cal.4th at
pp. 831-834.)
       In any event, our judicial system does not exist simply to resolve cases
quickly, nor to prevent litigation from ever taking place. It is a serious matter
whether a decision is correct in law and results from a fair process for all sides.
Affording preclusive effect to a trial court determination that evades appellate
review might speed up the resolution of controversies, but it would do so at the
expense of fairness, accuracy, and the integrity of the judicial system. We decline
to endorse that tradeoff. (Cf. Johnson v. City of Loma Linda (2000) 24 Cal.4th 61,
77 (Johnson) [refusing to give preclusive effect to a judgment based on laches,
notwithstanding “the public policies of giving certainty to legal proceedings,
preventing parties from being unfairly subjected to repetitive litigation, and
preserving judicial resources”].)
       We further observe that Matar’s concerns about repetitive litigation are
overstated. For one thing, if Matar had sought summary judgment on causation
grounds when Nahigian did, Matar, too, would have had the benefit of the trial
court’s decision. Had Samara appealed, the judgment would not have been

                                          15
affirmed with respect to Matar simply because Samara’s suit against Nahigian
was untimely; the Court of Appeal would likely have confronted the merits of the
trial court’s no-causation ruling. In other words, Matar could have promoted
judicial economy and protected himself from the burdens of further litigation
simply by timely filing such a motion. (Cf. Love v. Waltz (1857) 7 Cal. 250, 252
[“If defendants had any doubt in regard to the right of plaintiff to sue, and wished
to be protected from any further liability to Mrs. Love, they should have made her
a party to the first suit, and then the judgment would have been conclusive upon
all parties that could have any interest”].)
       More generally, courts are not powerless to prevent a waste of judicial
resources. Appellate courts can affirm on multiple grounds where appropriate.
Trial courts can decline to reach issues that are unnecessary for judgment. And
although, on remand, the trial court in this case should resolve Matar’s motion for
summary judgment without relying on the supposedly preclusive effect of the
judgment in favor of Nahigian, the court need not forget or ignore the work it has
already completed in this litigation. Declining to find preclusion does not require
that a new judge be assigned and the case start afresh; it means only that a prior
determination by itself does not necessarily, as a matter of law, bind the future one
— and that the correctness of that future determination, if appealed, can be
reviewed on its merits.

           2. Stare decisis does not compel continued adherence to Skidmore
       “[T]he doctrine of stare decisis” is “a fundamental jurisprudential policy
that prior applicable precedent usually must be followed even though the case, if
considered anew, might be decided differently by the current justices.” (Moradi-
Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 296.) But the
policy is just that — a policy — and it admits of exceptions in rare and appropriate



                                          16
cases. Factors that have contributed to our reconsideration of precedent include:
“a . . . tide of critical or contrary authority from other jurisdictions” (Freeman &
Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 100); our precedent’s
“divergence from the path followed by the Restatements” (Riverisland Cold
Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169,
1179); and our concern that no “satisfactory rationalization has been advanced”
for the decision at issue (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 812
[overruling mutuality requirement for issue preclusion]). As discussed, these rare
factors are present here, as is tension between Skidmore and our other preclusion
case law.
       Moreover, several of the concerns that can give stare decisis particular
force are not applicable in this case. When the party urging us to overrule a
decision could have easily avoided the decision’s effect, for example, we are less
inclined to disturb our precedent. (See, e.g., Hernandez v. Restoration Hardware,
Inc. (2018) 4 Cal.5th 260, 272 [declining to overrule principle that nonparty class
member cannot appeal, where other options meant that member would not be
“discourage[d] . . . from filing a meritorious appeal”]; cf. Kimble v. Marvel
Entertainment, LLC (2015) __ U.S. __, __ [135 S.Ct. 2401, 2408] [declining to
overrule case that contracting “parties can often find ways around”].) Under
Skidmore, however, a party that has lost in the trial court and has appealed the trial
court’s rulings can do little to ensure reversal of an adverse but ultimately
unnecessary trial court determination.
       Nor does Skidmore implicate the reliance concerns that have encouraged
adherence to precedent in other contexts. We are particularly reluctant to overrule
precedent when, unlike here, “[d]oubtless many people” have entered into
transactions in reliance upon that precedent. (Sacramento Bank v. Alcorn (1898)
121 Cal. 379, 382.) Although Skidmore might theoretically have induced some

                                          17
number of settlements following unsuccessful appeals, it is not the sort of “rule of
property” that encourages strict adherence to precedent. (Security Pacific
National Bank v. Wozab (1990) 51 Cal.3d 991, 1000.) Perhaps for this reason, no
party has urged us to depart from “the general rule that a decision of a court of
supreme jurisdiction overruling a former decision is retrospective in its operation,”
rather than purely prospective. (County of Los Angeles v. Faus (1957) 48 Cal.2d
672, 680-681.)
       Under all these circumstances, we conclude that People v. Skidmore, supra,
27 Cal. 287 should be — and is now — overruled. We caution, however, that we
take no position on the significance of an independently sufficient alternative
ground reached by the trial court and not challenged on appeal.

            III. NEITHER CLAIM NOR ISSUE PRECLUSION SUPPORTS
                 THE SUMMARY JUDGMENT IN FAVOR OF MATAR

       Whether the trial court erred by granting Matar’s motion for summary judgment
is a question of law we review de novo. (See, e.g., Johnson, supra, 24 Cal.4th at
pp. 67-68.) We hold that it did. The critical point here is that the preclusive effect of
the judgment in favor of Nahigian should be evaluated as though the trial court had not
reached the causation issue. (See ante, Part II.C.) That premise implies that the
causation issue was not “necessarily decided in the first suit,” or even “decided” at all,
rendering issue preclusion unavailable. (DKN Holdings, supra, 61 Cal.4th at p. 825.)
Moreover, the Court of Appeal concluded, and Matar’s briefing does not dispute, that a
decision on timeliness grounds is not a decision “on the merits” in the relevant sense.
Accepting that premise as undisputed (and without deciding its correctness), it follows
that the ruling in favor of Nahigian was not a “final judgment on the merits,” and that
claim preclusion is likewise unavailable. (DKN Holdings, supra, 61 Cal.4th at p. 824.)
Thus, neither claim nor issue preclusion can support the summary judgment entered in
favor of Matar, and the trial court’s ruling to the contrary was erroneous.


                                          18
                                 IV. DISPOSITION
       We affirm the judgment of the Court of Appeal; overrule Skidmore, supra,
27 Cal. 287; and disapprove Bank of America v. McLaughlin etc. Co., supra,
40 Cal.App.2d 620, to the extent it is inconsistent with this opinion.3

                                                    CANTIL-SAKAUYE, C. J.

WE CONCUR:

CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
HOCH, J.*




3     We decline to address any other issues raised by the parties. (See Cal.
Rules of Court, rule 8.516(b)(3).)

*      Associate Justice of the Court of Appeal, Third Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.



                                         19
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Samara v. Matar
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 8 Cal.App.5th 796
Rehearing Granted

__________________________________________________________________________________

Opinion No. S240918
Date Filed: June 25, 2018
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: William D. Stewart

__________________________________________________________________________________

Counsel:

Curd, Galindo & Smith, Alexis Galindo and Tracy Labrusciano for Plaintiff and Appellant.

Ford, Walker, Haggerty & Behar, Katherine M. Harwood; Tardiff Law Offices and Neil S. Tardiff for
Defendant and Respondent.

McGarrigle Kenney & Zampiello, Patrick C. McGarrigle and Michael J. Kenney for Kenneth Barton as
Amicus Curiae on behalf of Defendant and Respondent.

Law Offices of Mary A. Lehman and Mary A. Lehman for Stephen H. Bennett, Richard T. Letwak and
Letwak & Bennett as Amici Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Tracy Labrusciano
Curd, Galindo & Smith
301 East Ocean Boulevard, #1700
Long Beach, CA 90802
(562) 624-1177

Neil S. Tardiff
Tardiff Law Offices
P.O. Box 1446
San Luis Obispo, CA 93406
(805) 544-8100

Patrick C. McGarrigle
McGarrigle Kenney & Zampiello
9600 Topanga Canyon Boulevard, Suite 200
Chatsworth, CA 91311
(818) 998-3300
