Filed 2/15/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION SEVEN


RANA SAMARA,                               B265752

       Plaintiff and Appellant,            (Los Angeles County
                                           Super. Ct. No. EC056720)
       v.

HAITHAM MATAR,

       Defendant and Respondent.



       APPEAL from a judgment of the Superior Court of
Los Angeles County, William D. Stewart, Judge. Reversed and
remanded.
       Curd Galindo & Smith, Alexis Galindo for Plaintiff and
Appellant.
       Ford, Walker, Haggerty & Behar, Katherine M. Harwood
and Neil S. Tardiff for Defendant and Respondent.
                         _______________
       Rana Samara sued Dr. Haitham Matar and Dr. Stephen
Nahigian for dental malpractice, alleging Dr. Nahigian had
negligently performed oral surgery on her and Dr. Matar, as
Dr. Nahigian’s principal and employer, was vicariously liable for
Dr. Nahigian’s negligence. The trial court granted summary
judgment for Dr. Nahigian on alternative grounds—Samara’s
negligence claim was barred by the statute of limitations and
Samara could not establish causation. We affirmed the judgment
in favor of Dr. Nahigian based solely on the statute of limitations,
expressly declining to reach the issue of causation. (See Samara
v. Estate of Stephen Nahigian D.D.S. (Nov. 10, 2014, B248553)
[nonpub. opn.] (Samara I).)
       Following our decision in favor of Dr. Nahigian, Dr. Matar
moved for summary judgment, arguing the question of
Dr. Nahigian’s liability had been conclusively determined in
Dr. Nahigian’s favor (issue preclusion) and Dr. Matar was thus
entitled to judgment on Samara’s vicarious liability claim as a
matter of law. Dr. Matar also asserted Samara could not
establish that he had been independently negligent or that his
own acts or omissions had caused her injury.
       The trial court granted Dr. Matar’s motion, concluding
Samara’s claim for vicarious liability was barred under the
doctrine of claim preclusion—a ground not raised in Dr. Matar’s
motion—and Samara could not show Dr. Matar independently
caused her any injury. On appeal Samara contends neither claim
preclusion nor issue preclusion applies in this case. We agree
and reverse the judgment.




                                 2
       FACTUAL AND PROCEDURAL BACKGROUND
      1. This Lawsuit
      On September 6, 2011 Samara sued Drs. Nahigian and
Matar for professional negligence/dental malpractice. As to
Dr. Nahigian, the operative first amended complaint alleged he
had negligently inserted a dental implant while performing oral
surgery on Samara on August 16, 2010. As a result of
Dr. Nahigian’s negligence, Samara suffered permanent nerve
damage. As to Dr. Matar, Samara alleged Dr. Nahigian had
performed the surgery while on probation by the California
Dental Board and was working under a restricted dental license
as an agent/employee of Dr. Matar. Samara asserted Dr. Matar,
as Dr. Nahigian’s principal/employer, was vicariously liable for
Dr. Nahigian’s negligence. She also alleged Dr. Matar was
directly negligent in failing to inform her of Dr. Nahigian’s
probationary status and of the risks of surgery and for failing to
conduct appropriate post-operative care and treatment. Samara
sought damages from Drs. Matar and Nahigian in excess of
$250,000.
      2. Dr. Nahigian’s Motion for Summary Judgment
      Dr. Nahigian moved for summary judgment on three
grounds: (1) Samara could not demonstrate his conduct fell
below the standard of care; (2) she could not establish his
allegedly deficient performance caused her nerve damage; and
(3) Samara’s action was time-barred. Dr. Nahigian submitted the
declaration of Dr. Bach Le, an oral surgeon, who opined “to a
reasonable degree of medical probability, that no negligent act or
omission on the part of Dr. Nahigian caused or contributed to”
Samara’s injuries.




                                3
       With her opposition to Dr. Nahigian’s motion Samara
submitted the declaration of Dr. Gregory Doumanian, who
testified Dr. Nahigian had used an implant that was too large,
conduct that fell below the standard of care. He also declared
Samara’s nerve injury “could have been prevented had
Dr. Nahigian used a shorter implant or an alternative treatment
plan.”
       The trial court granted Dr. Nahigian’s motion, ruling
Samara’s action against Dr. Nahigian was time-barred under the
one-year-from-discovery provision of Code of Civil Procedure
              1
section 340.5. Alternatively, the court ruled Dr. Nahigian had
met his burden to show Samara could not establish the essential
element of causation. The court found Dr. Doumanian’s
opposition declaration did not state an opinion on causation to a
“reasonable degree of medical probability” and, therefore, failed
to raise a triable issue of material fact on that question. The
court entered judgment in favor of Dr. Nahigian.
       3. Samara’s Appeal from the Judgment in Favor of
          Dr. Nahigian
    On appeal from the judgment in favor of Dr. Nahigian,
Samara conceded the trial court had correctly ruled her action


1
       Dr. Matar also moved for summary judgment contending
Samara’s negligence claims were barred by the statute of limitations.
The court denied Dr. Matar’s motion, concluding Samara’s notice of
intention to commence an action for professional negligence to
Dr. Matar, unlike her earlier separate notice to Dr. Nahigian, extended
the limitations period by 90 days, making the lawsuit against Dr.
Matar timely. (See Code Civ. Proc., § 364, subds. (a), (d).) At Samara’s
request, following entry of judgment in favor of Dr. Nahigian, further
proceedings in the action against Dr. Matar were stayed pending
resolution of Samara’s appeal from that judgment.




                                   4
against Dr. Nahigian was time-barred. However, she requested
we reverse the alternative ground on which the court had granted
summary judgment—lack of causation—to preclude Dr. Matar
from relying on that ruling in the action against him under the
doctrine of collateral estoppel/issue preclusion. Dr. Nahigian did
not file a respondent’s brief. We affirmed the judgment, but
expressly declined to reach the alternative ground of causation
because it was not necessary to our decision. Citing case law that
holds an affirmance on an alternative ground operates as
collateral estoppel/issue preclusion only on the ground reached by
the appellate court, we also noted, “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. (See generally Zevnik v.
Superior Court (2008) 159 Cal.App.4th 76, 86-88; Newport Beach
Country Club, Inc. v. Founding Members of Newport Beach
Country Club (2006) 140 Cal.App.4th 1120, 1132 [(Newport
Beach)].)” (Samara I, supra, B248553.)
       4. Dr. Matar’s Motion for Summary Judgment
       Following our decision in Samara I, Dr. Matar moved for
summary judgment. Citing principles of collateral estoppel/issue
preclusion, he argued Samara’s unsuccessful action against
Dr. Nahigian had conclusively established Dr. Nahigian’s conduct
did not cause Samara’s injury, precluding her claim against him
based on a theory of vicarious liability as a matter of law. With
respect to the allegations of his own negligent conduct, Dr. Matar
argued Samara could not prove he had acted below the standard
of care or had caused any injury. Dr. Matar included with his
motion the declaration of Dr. Barton Kubelka, a licensed dentist,
who opined Dr. Matar’s treatment plan both before and after the




                                5
surgery was appropriate and in accordance with the standard of
care; he did not have a duty as a referring dentist to warn
Samara of the risks of the dental implant procedure; and no
negligent act or omission on Dr. Matar’s part caused Samara any
injury.
       Samara opposed the motion, arguing collateral
estoppel/issue preclusion did not apply because we had expressly
declined in our decision affirming the judgment in favor of
Dr. Nahigian to decide the alternative ground of causation.
Samara also included a revised declaration from Dr. Doumanian,
who opined Dr. Nahigian’s use of the wrong-sized implant during
surgery was below the standard of care and that his conduct, “to
a reasonable degree of medical probability,” had caused Samara
permanent nerve damage. Finally, citing Dr. Doumanian’s
declaration, Samara argued triable issues of material fact existed
as to whether Dr. Matar was independently negligent in his post-
operative treatment of her. She did not argue or include evidence
Dr. Matar was negligent in referring her to Dr. Nahigian or that
his post-operative care or treatment had caused her injury.
       In his reply Dr. Matar argued Samara had failed to raise a
triable issue of material fact that any post-operative action or
omission had directly caused her injury.
       The trial court granted Dr. Matar’s motion, ruling under
the doctrine of claim preclusion the earlier judgment for
Dr. Nahigian barred Samara’s vicarious liability claim. The trial
court acknowledged modern case law holding issue preclusion/
collateral estoppel inapplicable when the ground relied on by the
trial court in an earlier action had not been addressed in the
appellate opinion affirming the judgment, but distinguished
those authorities on the ground the question in the instant




                                6
matter was one of claim preclusion, not issue preclusion. The
court also found Samara had failed to establish a triable issue of
material fact that Dr. Matar had independently caused her
injury.
                         DISCUSSION
      1. Standard of Review
       A motion for summary judgment is properly granted only
when “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c).) We review a grant of summary judgment de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law. (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014)
59 Cal.4th 277, 286; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th
610, 618.) The evidence must be viewed in the light most
favorable to the nonmoving party. (Ennabe v. Manosa (2014)
58 Cal.4th 697, 703; Schachter, at p. 618.)
       2. The Trial Court Erred in Granting Summary Judgment
          on the Ground of Claim Preclusion
       The question of the applicability of claim preclusion or
issue preclusion is one of law to which we apply a de novo review.
(Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497,
                                                                      2
1507 (Johnson); Noble v. Draper (2008) 160 Cal.App.4th 1, 10.)


2
      Although Dr. Matar moved for summary judgment on the
ground of issue preclusion, the trial court decided the motion based on
claim preclusion—an issue not raised in Dr. Matar’s motion or
addressed in Samara’s opposition. However, Samara has not objected
on notice grounds to the court’s ruling; we consider that issue forfeited.
(See Fourth La Costa Condominium Owners Assn. v. Seith (2008)




                                    7
             a. Res judicata: claim preclusion and
                 issue preclusion
       The doctrine of res judicata has two aspects—claim
preclusion and issue preclusion. (DKN Holdings LLC. v. Faerber
(2015) 61 Cal.4th 813, 824 (DKN Holdings); Boeken v. Philip
Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) “Claim preclusion
‘prevents relitigation of the same cause of action in a second suit
between the same parties or parties in privity with them.’
[Citation.] Claim preclusion arises if a second suit involves
(1) the same cause of action (2) between the same parties [or
those in privity with them] (3) after a final judgment on the
merits in the first suit. [Citations.] If claim preclusion is
established, it operates to bar relitigation of the claim
altogether.” (DKN Holdings, at p. 824; accord, Mycogen Corp. v.
Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen); Johnson,
supra, 166 Cal.App.4th at p. 1507.) The bar applies if the cause
of action could have been brought, whether or not it was actually
asserted or decided in the first lawsuit. (Busick v. Workermen’s
Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974; Zevnik v. Superior
Court, supra, 159 Cal.App.4th at p. 82.) The doctrine promotes
judicial economy and avoids piecemeal litigation by preventing a
plaintiff from “‘“splitting a single cause of action or relitigat[ing]
the same cause of action on a different legal theory or for
different relief.”’” (Mycogen, at p. 897.)
       The second aspect of res judicata, issue preclusion,
historically referred to as collateral estoppel, “prohibits the
relitigation of issues argued and decided in a previous case, even


159 Cal.App.4th 563, 585 [due process notice issue forfeited because
not raised in trial court]; In re Marriage of Khera & Sameer (2012)
206 Cal.App.4th 1467, 1478.)




                                   8
if the second suit raises different causes of action. [Citation.]
Under issue preclusion, the prior judgment conclusively resolves
an issue actually litigated and determined in the first action.”
(DKN Holdings, supra, 61 Cal.4th at p. 824; accord, Boeken v.
Philip Morris USA, INC., supra, 48 Cal.4th at p. 797.) The
doctrine applies “(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.” (DKN Holdings, at p. 825.)
The doctrine differs from claim preclusion in that it operates as a
conclusive determination of issues; it does not bar a cause of
action. (Ibid.) In addition, unlike claim preclusion, issue
preclusion can be raised by one who is not a party to the prior
proceeding against one who was a party or his or her privy.
(Ibid.; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)
Moreover, even if the minimal requirements for issue preclusion
are satisfied, courts will not apply the doctrine if policy
considerations outweigh the doctrine’s purpose in a particular
case. (Lucido, at pp. 342-343.)
             b. Claim preclusion is not applicable because there
                were not successive lawsuits
       There is no dispute the first two elements necessary for
claim preclusion are present here: (1) Samara’s action against
Dr. Matar for professional negligence, to the extent it is based on
his alleged vicarious liability for Dr. Nahigian’s conduct, involves
the same cause of action, that is, the same primary right, as that
                                                 3
alleged in her lawsuit against Dr. Nahigian; and (2) as an


3
       Under the primary rights theory of claim preclusion applicable
in California, “a cause of action arises from the invasion of the primary




                                    9
alleged employer/principal, Dr. Matar is in privity with Nahigian.
(See DKN Holdings, supra, 61 Cal.4th at pp. 827-828 [“[w]hen a
defendant’s liability is entirely derived from that of a party in an
earlier action, claim preclusion bars the second action because
the [primary right is the same and] second defendant stands in
privity with the earlier one”]; Richard B. LeVine, Inc. v. Higashi
(2005) 131 Cal.App.4th 566, 578-579 [same].)
       The essential third element—separate or successive
lawsuits—is not. As discussed, summary judgment in favor of
Dr. Nahigian was granted on alternative grounds, causation and
statute of limitations. Had no appeal been filed, that judgment,
on the merits, would have been final and entitled to preclusive
effect. (See Brown v. Campbell (1893) 100 Cal. 635, 647;
Franklin & Franklin v. 7-Eleven Owners for Fair Franchising
(2000) 85 Cal.App.4th 1168, 1174 [in California, unlike in federal
courts, “the rule is that the finality required to invoke the
preclusive bar of res judicata [claim preclusion] is not achieved
until an appeal from the trial court judgment has been exhausted
or the time to appeal has expired”].) However, an appeal was
filed and decided solely on the basis of the statute of limitations,
a purely procedural ground that was personal to Dr. Nahigian
(see fn. 1, above). (Lackner v. LaCroix (1979) 25 Cal.3d 747, 751-
752 [termination of action on statute of limitations ground is not
an adjudication on the merits]; Perez v. Roe 1 (2006)
146 Cal.App.4th 171, 183-184 [“California law holds that a civil


right. Although different grounds for legal relief may be asserted
under different theories, conduct that violates a single primary right
gives rise to only one cause of action.” (DKN Holdings, supra, 61
Cal.4th at p. 818, fn. 1; see also id. at p. 828; Boeken v. Philip Morris,
supra, 48 Cal.4th at pp. 797-798.)




                                    10
judgment based solely on the statute of limitations is not on the
merits”].)
       Notwithstanding the expressly limited nature of our
decision in Samara I, relying on the Civil War-era case of People
v. Skidmore (1865) 27 Cal. 287 (Skidmore), Dr. Matar argues our
decision affirmed the entire judgment, including the trial court’s
merits-based determination on causation, even though we did not
reach that question. In Skidmore the lower court had entered a
judgment in favor of defendants on alternative grounds, one
procedural (misjoinder) and one on the merits. On appeal the
Supreme Court affirmed the judgment on misjoinder grounds
without reaching the merits, stating its decision would not
“‘preclude the plaintiff from suing again when the cause of action
c[ould] be more formally set out.’” (Id. at p. 292.) The plaintiff
then filed a second action against the same defendants, alleging
the same cause of action. The defendants argued the action was
barred under the doctrine of claim preclusion by the judgment in
the first lawsuit. The plaintiff, on the other hand, argued there
had been no final judgment on the merits in that lawsuit, only a
decision on procedural grounds.
       The Skidmore Court acknowledged that in its prior decision
it had affirmed the trial court judgment on purely procedural
grounds. Nonetheless, characterizing as dicta its earlier
suggestion that the plaintiff could refile the action, the Court
held its affirmance of the judgment “was an affirmance to the
whole extent of the legal effect of the judgment when it was
entered in the [c]ourt below.” (Skidmore, supra, 27 Cal.2d at
p. 292.) In other words, because the judgment below was on the
merits, the Supreme Court’s affirmance of that judgment, even
on purely procedural grounds, was tantamount to an affirmance




                                11
of the judgment in its “entirety, and by direct expression.” (Id. at
p. 293 [“[t]he judgment below was not reversed, either in whole or
in part, by the Supreme Court, nor was it modified in any
particular; and it follows, if the Court dealt with the judgment at
all, it must have affirmed it to the whole extent of its terms”].)
        Assuming the Skidmore holding still remains viable—a
question we need not decide but which the Supreme Court might
                 4
want to address —our decision in Samara I in favor of
Dr. Nahigian might well have barred Samara’s vicarious liability
claim against Dr. Matar if she had asserted it in a separate
lawsuit. But Samara did not “split” her cause of action: She sued
Drs. Nahigian and Matar in a single action asserting they were
both liable (Dr. Nahigian, directly; Dr. Matar, vicariously) for
Dr. Nahigian’s negligent performance of her oral surgery.
Accordingly, the judgment in favor of Dr. Nahigian does not bar
Samara from continuing her action against Dr. Matar. Claim
preclusion simply does not apply in these circumstances. (See
DKN Holdings, supra, 61 Cal 4th at pp. 827-828 [judgment in
favor of one defendant bars a second action against a second
defendant in privity with the first under the doctrine of claim
preclusion]; Clark v. Lesher (1956) 46 Cal.2d 874, 880 [in claim
preclusion, a prior judgment bars a “second suit between the
same parties”]; see also Mycogen, supra, 28 Cal.4th at p. 897 [“A
clear and predictable res judicata doctrine promotes judicial
economy. Under this doctrine, all claims based on the same
cause of action must be decided in a single suit; if not brought


4
       Several appellate courts have rejected Skidmore’s applicability
in the related collateral estoppel/issue preclusion context. (See
Discussion, infra, at pp. 15-19.)




                                  12
initially, they may not be raised at a later date”]; Brinton v.
Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 557-
558 [where securities broker found not liable for investment
losses, losing plaintiff cannot subsequently sue broker’s principal
based on same claim; successive lawsuit barred by claim
preclusion]; Thibodeau v. Crum (1992) 4 Cal.App.4th 749, 757
[when general contractor prevails in arbitration, claim preclusion
barred plaintiff’s successive lawsuit against the subcontractor
who did the work].)
       As Dr. Matar realized when he moved for summary
judgment, the question here is not whether claim preclusion
applies, but whether under the doctrine of issue preclusion
resolution of Dr. Nahigian’s liability in his favor conclusively
established the question of causation for purposes of Dr. Matar’s
alleged vicarious liability. (See Freeman v. Churchill (1947)
30 Cal.2d 453, 462 [when employee and employer are sued in
same lawsuit and employer’s liability is alleged to be solely
derivative of employee’s, judgment favorable to employee
conclusively established employer not liable; employer thus
                                                           5
entitled to directed verdict based on issue preclusion]; Sartor v.

5
       Language in Freeman v. Churchill, supra, 30 Cal.2d 453 that
the rule of “res judicata” “is the same whether the actions are separate
or the employee and employer are joined in the same action” (id. at p.
461) does not suggest otherwise. A careful review of Freeman reveals
that, in holding the employer was entitled to a directed verdict rather
than dismissal of the lawsuit based on its finding in favor of the
employee, the Court used the term “res judicata” to refer to issue
preclusion, not claim preclusion. (See id. at pp. 461-462; see also DKN
Holdings, supra, 61 Cal.4th at pp. 823-824 [observing the Court’s prior
opinions have caused some confusion because of the Court’s historic
tendency to use the “umbrella term” “res judicata” to refer to claim
preclusion, issue preclusion or both; in fact, “[i]t is important to




                                   13
Superior Court (1982) 136 Cal.App.3d 322, 325-328 [when
plaintiff sued employees and principal corporation, and claim
against employees stayed pending arbitration against principal
corporation, ruling in favor of corporation operated as collateral
estoppel/issue preclusion on question of employees’ liability].)
             c. The issue of Dr. Nahigian’s negligence has not been
                conclusively established
       Dr. Matar contends Skidmore is controlling on the
applicability of issue preclusion. That is, even though we
affirmed the judgment in Samara I solely on statute of
limitations grounds, expressly declining to reach the causation
question, Dr. Matar argues our affirmance necessarily
encompassed all issues reached by the trial court, including its
finding Samara could not show Dr. Nahigian caused her injury.
(See DiRuzza v. County of Tehama (9th Cir. 2003) 323 F.3d 1147,
1156 (DiRuzza) [the California position as articulated in
Skidmore is that “even if the appellate court refrains from
considering one of the grounds upon which the decision below
rests, an affirmance of the decision below extends legal effects to
the whole of the lower court’s determination, with attendant
collateral estoppel effect”]; see also Tomkow v. Barton (9th Cir.
Jan. 5, 2017, BAP No. CC-16-1075) __ F.3d __ [2017 Bankr. Lexis
31, at *10, *19 [following Di Ruzza as “binding precedent from
the Ninth Circuit”].)
       With one relatively timeworn exception California courts of
appeal have rejected application of Skidmore in the collateral
estoppel context, concluding an affirmance on an alternative


distinguish these two types of preclusion because they have different
requirements” and effects].)




                                  14
ground operates as collateral estoppel/issue preclusion only on
the ground reached by the appellate court. (See People ex rel.
Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549,
1574-1575; Zevnik v. Superior Court, supra, 159 Cal.App.4th at
pp. 87-88; Newport Beach, supra, 140 Cal.App.4th at p. 1131;
Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442,
1459-1460; see also Tomkow v. Barton, supra, __ F.3d __ [2017
Bankr. Lexis 31 at *10] [following DiRuzza as controlling
precedent while acknowledging California courts of appeal have
made “compelling arguments” for departing from Skidmore rule];
but see Bank of America v. McLaughlin Etc. (1940) 40 Cal.App.2d
620, 628 [issue preclusion applicable to all issues decided by trial
court in judgment even those appellate court expressly declined
to reach; “when the bankruptcy court determined that the
petitioner therein had no interest in the property listed, such
determination became final as to that issue, notwithstanding the
fact that the Circuit Court of Appeals, in affirming the judgment,
based its conclusions upon the other issues”].)
       In declining to apply the Skidmore rule to issue preclusion,
modern appellate authorities have identified three main
justifications: First, and in our view most persuasively,
Skidmore addressed the doctrine of claim preclusion as it applied
to successive lawsuits between the same parties; it did not
address issue preclusion. (See Zevnik v. Superior Court, supra,
159 Cal.App.4th at p. 88 & fn. 9.) That distinction is critical.
Unlike claim preclusion, for issue preclusion to apply the issue
must have been actually litigated and decided. That cannot have
occurred if the appellate court reviewing the judgment expressly
declined to address the issue. (Ibid.; see id. at p. 85 [“[t]he
opportunity for review of a decision is an important procedural




                                 15
protection against a potentially erroneous determination”; “an
appellate court’s failure to review an alternative ground on
appeal has the same effect as the absence of an opportunity for
review and, we believe, should result in no collateral estoppel as
to that alternative ground”]; Butcher v. Truck Ins. Exchange,
supra, 77 Cal.App.4th at p. 1460 [same]; see also Moran Towing
& Transportation Co. v. Navigazione Libera Triestina, S.A. (2d
Cir. 1937) 92 F.2d 37, 40 [to treat as controlling the findings of a
trial court when the appellate court expressly declines to rule
upon them and instead renders a decision of affirmance on
different grounds is “the height of unreason” and furnishes “a
false guide” to parties and to other litigations affected by the
decision].)
       Second, even if Skidmore were to apply to the separate,
albeit related, doctrine of issue preclusion, the law of issue
preclusion “has undergone tremendous change” since Skidmore
was decided, culminating in the adoption in 1982 of the
Restatement Second of Judgments (Restatement Second). (See
Newport Beach, supra, 140 Cal.App.4th at p. 1131.) Unlike its
predecessor, which set forth a contrary rule (one that the Court of
Appeal in Bank of America v. McLaughlin Etc. Co., supra,
40 Cal.App.2d at page 628 relied on to find issue preclusion
applicable to questions expressly not reached by the appellate
court), the Restatement Second provides, if a judgment rendered
by a court of first instance on alternative grounds is upheld by
the appellate court on only one of the grounds, and the appellate
court “‘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 determination.’” (Newport Beach,




                                16
                                                                  6
at pp. 1128-1129, quoting Rest.2d. Judgments § 27, com. o.)
Observing that the California Supreme Court had never
confirmed Skidmore in the 150 years since it was decided, but
has cited the Restatement Second with approval concerning the
doctrine of issue preclusion (see, e.g., Murray v. Alaska Airlines,
Inc. (2010) 50 Cal.4th 860, 874, & fn. 6; George Arakelian Farms,
Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279,
1290, fn. 7), the Newport Beach court found Skidmore
inapplicable to issues of collateral estoppel/issue preclusion. The
court reasoned, “[T]he California Supreme Court, if faced with
the issue today, would adopt the modern rule expressed in
comment o to the Restatement Second of Judgments, section 27.”


6
        Section 27 of the Restatement Second of Judgments provides,
“When an issue of fact or law is actually litigated and determined by a
valid and final judgment, and the determination is essential to the
judgment, the determination is conclusive in a subsequent action
between the parties, whether on the same or a different claim.”
Comment o to that section explains, “If a judgment rendered by a court
of first instance is reversed by the appellate court and a final judgment
is entered by the appellate court (or by the court of first instance in
pursuance of the mandate of the appellate court), this latter judgment
is conclusive between the parties. [¶] If the judgment of the court of
the first instance was based on a determination of two issues, either of
which standing independently would be sufficient to support the
result, and the appellate court upholds both of these determinations as
sufficient, and accordingly affirms the judgment, the judgment is
conclusive as to both determinations. . . . [¶] If the appellate court
upholds one of these determinations as sufficient but not the other,
and accordingly affirms the judgment, the judgment is conclusive as to
the first determination. [¶] If the appellate court upholds one of these
determinations as sufficient and refuses to consider whether or not the
other is sufficient and accordingly affirms the judgment, the judgment
is conclusive as to the first determination.”




                                   17
(Newport Beach, at p. 1132; accord, People ex rel. Brown v.
                                                                      7
Tri-Union Seafoods, LLC, supra, 171 Cal.App.4th at p. 1575.)
       Third, as a policy matter, giving preclusive effect to an
issue expressly not decided in the appellate opinion would conflict
with the appellate court’s duty under article VI, section 14 of the
California Constitution to set forth its decisions in writing “‘with
reasons stated.’ . . . To comply with th[at] constitutional
mandate, and to avoid unintended collateral estoppel
consequences under the traditional [Skidmore] rule, the appellate
court would have to address every ground recited in a judgment,
even though a decision on one ground would resolve the dispute
before the court.” (Newport Beach, supra, 140 Cal.App.4th at
p. 1132.) In effect, application of this rule would generate the
very judicial inefficiency the doctrine of issue preclusion is
designed to avoid. (Ibid.; accord, Zevnik v. Superior Court, supra,
159 Cal.App.4th at p. 85; see generally Lucido v. Superior Court,
supra, 51 Cal.3d at p. 343 [“the public policies underlying
collateral estoppel—preservation of the integrity of the judicial
system, promotion of judicial economy, and protection of litigants
from harassment by vexatious litigation—strongly influence
whether its application in a particular circumstance would be fair
to the parties and constitutes sound judicial policy”].)


7
        Citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455, the Newport Beach court acknowledged its duty under the
doctrine of stare decisis to follow decisions of courts exercising superior
jurisdiction, but reasoned Skidmore had been impliedly, albeit not
expressly, overruled. (See Newport Beach, supra, 140 Cal.App.4th at
p. 1131, citing Sei Fujii v. State of California (1952) 38 Cal.2d 718, 728
[“‘the authority of an older case may be as effectively dissipated by a
later trend of decision as by a statement expressly overruling it’”].)




                                    18
       For all these reasons, we agree with our colleagues in the
Fourth District (Newport Beach), the First District (Tri-Union
Seafoods) and Division Three of this court (Zevnik) and conclude
it is not proper to give conclusive effect under the doctrine of
issue preclusion to a ground we expressly declined to reach in our
review of the judgment. Indeed, as Justice Fybel recognized in
Newport Beach, “[W]e wrote the [first] appellate decision [in this
case]. We know we did not decide the [alternative ground now at
issue] and expressly stated ‘we do not address’ [that question.]
‘To hold now the judgment [in our first case] is [collateral
estoppel] on that issue would be, as Judge Hand put it, ‘the
height of unreason.’” (Newport Beach, supra, 140 Cal.App.4th at
p. 1130.)
       In so holding, we emphasize the reasons for finding
collateral estoppel/issue preclusion inapplicable to grounds not
passed on by the appellate court do not apply in the claim
preclusion context. As discussed, under the doctrine of claim
preclusion, as long as an appellate court affirms at least one
ground on the merits, any other claim that was or could have
been brought would be subsumed in the judgment, which
operates as a merger or bar to any subsequent lawsuit based on
the same primary right whether or not the appellate court
addressed the merits of that cause of action on appeal. (See
generally DKN Holdings, supra, 61 Cal.4th at p. 824; Boeken v.
Philip Morris USA, Inc., supra, 48 Cal.4th at p. 797.)




                                19
      3. The Trial Court’s Summary Judgment Ruling Covering
         Both the Vicarious Liability and Direct Liability Claims
         Must Be Reversed
        In addition to challenging Samara’s vicarious liability
claim, in his summary judgment motion Dr. Matar also argued
Samara had no evidence that any negligent act or omission by
him directly caused her injury. The trial court agreed, concluding
Dr. Doumanian’s declaration focused on Dr. Matar’s vicarious
liability and did not establish a causal nexus between any
postoperative care, act or omission by Dr. Matar and Samara’s
injury.
        Samara’s appeal does not contest the trial court’s ruling on
her claim of direct liability against Dr. Matar. Nonetheless,
Samara’s vicarious liability claim against Dr. Matar based on
Dr. Nahigian’s alleged negligence in performing her oral surgery
and her direct liability against Dr. Matar based on his allegedly
negligent post-operative care asserted violations of separate
primary rights and, therefore, constituted separate causes of
action for purposes of Code of Civil Procedure section 437c,
subdivision (f)(1). (See Mathieu v. Norrell Corp. (2004)
115 Cal.App.4th 1174, 1188; Lilienthal & Fowler v. Superior
Court (1993) 12 Cal.App.4th 1848, 1854-1855.) To prevail on
summary judgment Dr. Matar had to defeat both causes of
action. He did not. And because he did not move in the
alternative for summary adjudication of Samara’s direct liability
claims, in reversing the order granting summary judgment, we
are unable to direct the trial court on remand to enter a new
order disposing of that claim. (See People ex rel. Government
Employees Ins. Co. v. Cruz (2016) 244 Cal.App.4th 1184, 1197
[“[i]f a trial court erroneously grants summary judgment when a
factual dispute exists but affects fewer than all causes of action,




                                20
the appellate court may direct the trial court to enter an order
granting summary adjudication of the unaffected causes of action
if the moving party alternatively moved for summary
adjudication”]; Troyk v. Farmers Group, Inc. (2009)
171 Cal.App.4th 1305, 1354.)
                          DISPOSITION
       The judgment is reversed, and the matter remanded for
further proceedings not inconsistent with this opinion. Samara is
to recover her costs on appeal.




                                         PERLUSS, P. J.
     We concur:



           ZELON, J.



           SEGAL, J.




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