Filed 11/6/18
                               CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                          DIVISION FOUR


 VICTOR GUERRERO,
          Plaintiff and Appellant,
                                                         A147507
 v.
 CALIFORNIA DEPARTMENT OF                                (San Francisco City & County
 CORRECTIONS AND                                         Super. Ct. No. CGC-14-539692)
 REHABILITATION,
          Defendant and Respondent.


                                        I. INTRODUCTION
        Victor Guerrero, a Mexican immigrant and aspiring California correctional officer,
filed a federal action alleging discriminatory failure-to-hire against the California
Department of Corrections and Rehabilitation (the CDCR), among other defendants. He
pled federal and state law claims, but only his state claims allowed him to seek general
damages.
        The federal court dismissed Guerrero’s state claims on Eleventh Amendment
grounds, effectively limiting his potential money recovery to the equitable remedy of
backpay. To recoup damages, Guerrero filed this action in superior court. After final
judgment was entered in the federal action—in Guerrero’s favor—the superior court
dismissed his state claims under California claim preclusion principles.
        On appeal, Guerrero now argues that federal law, not California law, governs the
preclusive effect of the federal judgment. Under federal law, Guerrero contends, there is a
well-recognized exception to claim preclusion rules where jurisdictional limitations in a
prior suit blocked the plaintiff’s request for complete relief, as was the case here. We

                                                  1
agree and shall reverse.
                                           II. FACTS
     A. Background
       Guerrero is among the many Americans who are popularly known as “Dreamers.”
He was brought from Mexico to the United States by his parents in 1990 at age 11. In
1995, at age 15, he created a false Social Security number (SSN) to acquire a job, and used
the made-up SSN until 2007, when he secured a legitimate SSN. He became a United
States citizen in 2011.
       After Guerrero gained citizenship, he applied to become a correctional officer with
the CDCR. He passed the written and physical exams in the first stage of the CDCR’s
eligibility process and was placed on the eligibility list. The second stage involved
completing the CDCR’s background investigation questionnaire.
       Question 75 on the questionnaire presented a problem. It asked, “Have you ever
had or used a social security number other than the one you used on this questionnaire?”
Guerrero answered “yes” and provided a supplemental explanation. Based on that answer,
the CDCR informed Guerrero he was no longer eligible to become a correctional officer.
       Undaunted, Guerrero appealed to the State Personnel Board (the SPB), lost, and
then reapplied to the CDCR in spring 2013. He again passed the first stage of eligibility
and moved on to the background investigation questionnaire. Once again, he answered
“yes” to question 75 and provided an explanation. Ultimately, he was rejected again. He
appealed to the SPB, to no avail.
     B. Underlying Litigation
     1.       Filing of the Federal Action
       After exhausting administrative remedies, Guerrero filed a complaint in federal
district court on December 9, 2013 (the Federal Action), naming the CDCR, the SPB and
various individuals as defendants. That case alleged employment discrimination in
violation of title VII of the Civil Rights Act of 1964 (Title VII) and California’s Fair
Employment and Housing Act (Gov. Code, § 12940 et seq.) (FEHA); national origin
discrimination in a state-conducted program in violation of Government Code section
                                                 2
11135; federal constitutional claims under section 1983 of title 42 of the United States
Code for violation of the equal protection and due process clauses of the United States
Constitution; and state constitutional claims for violation of the equal protection and due
process clauses of article I, section 7 of the California Constitution.
       By way of relief, Guerrero sought, inter alia, declaratory relief, injunctive relief
(including reinstatement to the CDCR correctional officer hiring process), compensatory
damages, and an award of attorney fees and costs. He bolstered this requested relief with
claims for a writ of mandate under Code of Civil Procedure section 1085 barring further
use of question 75; and a writ of administrative mandamus under Code of Civil Procedure
section 1094.5 directing the CDCR and the SPB to set aside their decisions declaring him
ineligible to be a correctional officer.
     2.      Dismissal of State Law Claims in the Federal Action
       As the Federal Action moved forward, Guerrero added specificity, filing a first
amended complaint in January 2014 and then a second amended complaint in February
2014. On motions to dismiss the second amended complaint, the district court granted
dismissal in part. The court rejected the defense’s attack on the Title VII and federal
equal protection claims; dismissed the federal due process claim as redundant in light of
the more specific equal protection claim; and dismissed the state law claims on Eleventh
Amendment grounds, without prejudice. (Guerrero v. California Department of
Corrections and Rehabilitation (N.D.Cal. 2015) 119 F.Supp.3d 1065, 1068–1069
(Guerrero I), affirmed in part, reversed in part, and remanded Guerrero v. California
Department of Corrections and Rehabilitation (9th Cir. 2017) 701 Fed.Appx. 613
(Guerrero II).)
       The order of dismissal explained that “[b]ecause adjudication of plaintiff’s
California state-law claims in federal court would contravene the Eleventh Amendment,
plaintiff’s state-law claims against all defendants must be DISMISSED. These may be re-
filed in state court.” (Guerrero v. California Department of Corrections and
Rehabilitation (N.D.Cal. May 7, 2014, No. C 13-05671 WHA) 2014 U.S.Dist. Lexis
63282, at pp. 15–16, citing Pennhurst State School & Hospital v. Halderman (1984)
                                                  3
465 U.S. 89, 106.) Following issuance of this order, Guerrero amended his complaint one
final time, filing a third amended complaint omitting the state law claims. (Guerrero I,
supra, 119 F.Supp.3d at p. 1069.) As a practical matter, the dismissal of Guerrero’s state
law claims stripped him of the ability to seek damages in the Federal Action. For
monetary relief, he was left with only the equitable remedy of backpay.
       Going into trial, Guerrero’s third amended complaint presented only federal
questions. (Guerrero I, supra, 119 Fed.Supp.3d at p. 1069.) In these surviving federal
claims, the gist of Guerrero’s theory was that “[d]efendants’ disqualification of applicants
who have previously used an SSN other than their own has an adverse and disparate
impact on particular national origin minorities, such as Latinos, who seek to qualify for
state employment.” Guerrero alleged that the CDCR, with the knowledge and active
support of the SPB, was disproportionately disqualifying Latino correctional officer
applicants by using question 75 to target formerly undocumented immigrants like himself.
     3.     Filing of the State Court Action
       In accordance with the district court’s observation that the state law claims “may be
re-filed in state court,” Guerrero filed a complaint in San Francisco County Superior Court
(State Court Action) while the Federal Action was still pending. Once again, Guerrero
named the CDCR and the SPB as defendants along with various individuals, and once
again, he alleged failure-to-hire under a disparate impact theory based on the use of
question 75. It is undisputed that, factually, the allegations of discrimination in these
parallel state and federal proceedings were virtual mirror images.
       As a first order of business in the State Court Action, the trial court held a case
management conference in which the parties agreed to a stay pending completion of the
federal proceedings, but also agreed that, upon resumption of the State Court Action, any
collateral estoppel or res judicata issues arising out of the anticipated federal judgment
should be decided first. Those issues were then briefed and scheduled for hearing at a time
set far enough out on the calendar to trail the entry of judgment in the Federal Action.




                                                  4
        4.    Trial and Judgment in the Federal Action
         While the State Court Action was stayed, a bench trial took place in the Federal
Action, which ended with a judgment for Guerrero on his Title VII claim, awarding much
of the relief he sought, including reinstatement to the CDCR’s correctional officer hiring
process and $140,362 in backpay contingent on his successfully completing the CDCR
training academy, plus an award of $1,237,024.82 in prevailing party attorney fees and
$166,541.87 in costs. (Guerrero v. California Department of Corrections and
Rehabilitation (N.D.Cal. June 16, 2016, No. C 13-05671 WHA) 2016 WL 3360638, at
p. 35 (Guerrero Fees Order), vacated and remanded, Guerrero II, supra, 701 Fed.Appx.
613.)
         Guerrero was not wholly successful in the Federal Action, however. (See Guerrero
Fees Order, supra, 2016 WL 3360638, at pp. 35–37.) The district court found for the
CDCR on Guerrero’s federal equal protection claim under section 1983 (Guerrero I,
supra, 119 F.Supp.3d at p. 1082), and, while holding that he had suffered discrimination
individually, it rejected his claim that the CDCR’s use of question 75 is categorically
invalid. (Id. at p. 1081.) The court found that the detection of SSN misuse bears upon the
CDCR’s legitimate interest in maintaining the “integrity, honesty, and good judgment [of
its] corrections officer[s],” and as a result, declined to enjoin its use so long as, going
forward, the CDCR properly conformed the question to business necessity criteria
established by the Equal Employment Opportunity Commission. (Ibid.) The ensuing
judgment is now final, having been affirmed on appeal.1


         In July 2017, a Ninth Circuit panel sustained the district court’s finding of Title
         1

VII disparate impact liability against the CDCR, but reversed the judgment with respect
to the SPB, holding that “[i]n its purely adjudicatory role in this case, there is no evidence
that [the SPB] discriminated against or interfered with the CDCR’s relationship with
Guerrero, nor is [the SPB] in a position analogous to [a state agency that had become] ‘so
entangled with the operation of California’s local school districts that individual districts
are treated as “ ‘state agencies’ ” for purposes of the Eleventh Amendment.’ [Citation.]
Therefore, [the SPB] cannot be liable under a third party disparate impact theory.”
(Guerrero II, supra, 701 Fed.Appx. at pp. 618–619.) Because the fees and costs awards

                                                   5
     5.     Dismissal of the State Court Action
       Following completion of the Federal Action, the trial court in the State Court Action
heard argument on the preclusive effect of the federal judgment. On November 6, 2015, it
issued an “Order on Res Judicata Effect of Federal Judgment” ruling that “this case should
be dismissed and judgment entered against [Guerrero]” because “[u]nder California law
including its primary rights doctrine . . . the same primary rights were at issue in the federal
case . . . and in this case.” It is from the adverse judgment entered upon this order that
Guerrero now appeals.2
                                      III.     DISCUSSION
     A. Standard of Review and Principles of Res Judicata
       We review a dismissal on grounds of res judicata de novo as an issue of law.
(Noble v. Draper (2008) 160 Cal.App.4th 1, 10.) Res judicata—law Latin for “a thing
adjudicated”—is an umbrella term encompassing issue preclusion and claim preclusion,
both of which describe the preclusive effect of a final judgment. As a general matter under
the doctrine of claim preclusion, a final judgment on the merits bars parties or parties in
privity from “successive litigation of the very same claim . . . as the earlier [action].”
(Taylor v. Sturgell (2008) 553 U.S. 880, 892 (Taylor).) The driving principle behind the
claim preclusion doctrine is that the parties have had a “ ‘full and fair opportunity to
litigate’ ” claims alleged in the first action. (Ibid., citing Montana v. United States (1979)
440 U.S. 147, 153–154.)
       Unlike issue preclusion, which applies only to issues that were actually litigated,
claim preclusion applies not just to what was litigated, but more broadly to what could
have been litigated. Here, under what is sometimes known as the rule against “claim
splitting,” the doctrines of bar and merger do the work. (See Rest.2d Judgments (Second


were entered on an apportioned basis against both the CDCR and the SPB, the case was
remanded to the district court for the limited purpose of reconsidering that
apportionment. (Id. at p. 619.)
       2
       While this appeal was pending, we granted a stipulated motion dismissing the
SPB and the individual defendants, leaving the CDCR as the sole respondent.
                                                  6
Restatement), § 24.) “Merger” expresses the idea that, for a winning plaintiff, all claims
the plaintiff did raise or could have raised merge into the judgment in his favor. (Id. § 18.)
If the plaintiff attempts to litigate any of those claims again, the judgment itself serves as a
defense. “Bar,” on the other hand, refers to the related idea that a judgment for a winning
defendant bars the plaintiff from litigating any claims he brought or could have brought in
the prior suit. (Id. § 19.) This case involves the merger aspect of claim preclusion.
       Together, the principles of issue and claim preclusion serve to “relieve parties of the
cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing
inconsistent decisions, encourage reliance on adjudication” (Allen v. McCurry (1980)
449 U.S. 90, 94), thereby shielding litigants from undue harassment and avoiding the
substantial time and expense associated with repetitive litigation. (Taylor, supra, 553 U.S.
at p. 892.) The reduction of duplicative proceedings also furthers the goals of
convenience, efficiency and judicial economy—in one proceeding, the same trial court
presides over discovery, motions, and a single trial. (Allen, supra, 449 U.S. at p. 94.) The
rules of claim and issue preclusion protect the integrity of courts by fostering finality and
minimizing the potential for conflicting judgments, which serves to promote public
confidence in the judicial process. (See Nevada v. United States (1983) 463 U.S. 110,
128–129; see also Allan D. Vestal, Res Judicata/Preclusion by Judgment: The Law
Applied in Federal Courts (1968) 66 Mich. L.Rev. 1723, 1723.)
     B. Applicability of Federal Law
       The main issue Guerrero presents on appeal, described by the trial court as “the
central problem here,” is “which law provides the rule of decision for res judicata
analysis.” Do we apply California law or federal law?
       The basic principles of claim preclusion are roughly the same under California
and federal law, but there are some key differences. For example, while federal law
defines a “claim” for purposes of claim preclusion using a transactional test, California
law uses the older pleading term “cause of action” and defines it according to the




                                                  7
common law doctrine of primary rights.3 The more modern transactional approach has
been adopted by the Second Restatement. (See id. § 24.) Although recent
pronouncements from our high court have moved California law toward alignment with
the overall approach to issue and claim preclusion in the Second Restatement, at least in
the terminology we employ (see DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813,
824), some features of California claim preclusion law remain distinctive. The primary
rights doctrine is one such area. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th
788, 804; see Friedman Prof. Management Co., Inc. v. Norcal Mutual Ins. Co. (2004)
120 Cal.App.4th 17, 27–29.)
       Guerrero argues that, in determining the preclusive effect of the judgment in the
Federal Action, the trial court erroneously applied the California doctrine of primary
rights. He correctly points out that in Semtek Int’l Inc. v. Lockheed Martin Corp. (2001)
531 U.S. 497 (Semtek), the United States Supreme Court held that federal common law
controls the preclusive effect of a federal judgment. The federal judgment in Semtek, to
be sure, arose in a diversity case (see 28 U.S.C. § 1332), but the language of the opinion
in that case is broad. It states that the United States Supreme Court “has the last word on
the claim-preclusive effect of all federal judgments.” (Semtek, supra, 531 U.S. at p. 507,
italics omitted.) If there were any doubt about the breadth of this holding, the high court
removed it in Taylor, supra, 553 U.S. at page 892, which applies Semtek in a case where
the judgment at issue was entered in a federal question case. (See 28 U.S.C. § 1331;
Taylor, at p. 891, citing Semtek, at pp. 507–508; see also Rest.2d Judgments, § 87



       3
         “The federal courts utilize a transactional analysis; i.e., two suits constitute a
single cause of action if they both arise from the same ‘transactional nucleus of facts’
[citation] or a single ‘core of operative facts.’ [Citation.] California follows the primary
right theory of Pomeroy; i.e., a cause of action consists of 1) a primary right possessed by
the plaintiff, 2) a corresponding primary duty devolving upon the defendant, and 3) a
delict or wrong done by the defendant which consists in a breach of such primary right
and duty. [Citations.]” (Gamble v. General Foods Corp. (1991) 229 Cal.App.3d 893,
898 (Gamble).)


                                                 8
[“Federal law determines the effects under the rules of res judicata of a judgment of a
federal court”].)
       Although federal common law applies under Semtek, the ultimate rule of decision
chosen in that case was the law of the state where the judgment-issuing federal court
sat, a holding which effectively embeds state law into federal law unless some
paramount federal interest calls for a departure from it. This aspect of Semtek is
consistent with the conventional approach to conflict of laws in federal diversity cases,4
but leaves open what to do in federal question cases, which present a very different
choice-of-law problem.5 While recognizing that “Semtek does not tell us what the rule
of decision is when the federal judgment was on a federal question,” the trial court went
on to apply California law because it perceived no federal interest in the application of
federal law. On this point, the court erred. Pockets of federal common law do exist,
enunciated case-by-case, independent of state law.6 They are rare, but Taylor quite
clearly announces one. “The preclusive effect of a federal-court judgment is
determined by federal common law,” the high court held in Taylor. At first blush, that
might seem like just a straightforward application of Semtek, calling for the application
of state law incorporated into federal law, but the Taylor court goes further: “For
judgments in federal-question cases[,] . . . federal courts participate in developing


       4
        Erie R. Co. v. Tompkins (1938) 304 U.S. 64, 78–80; see Klaxon Co. v. Stentor
Co. (1941) 313 U.S. 487, 496.
       5
        See Paul J. Mishkin, The Variousness of “Federal Law”: Competence and
Discretion in the Choice of National and State Rules for Decision (1957) 105 U. Pa.
L.Rev. 797.
       6
         Texas Industries Inc. v. Radcliff Materials, Inc. (1981) 451 U.S. 630, 640
(“There is, of course, ‘no federal general common law.’ [Citations.] Nevertheless, the
Court has recognized the need and authority in some limited areas to formulate what has
come to be known as ‘federal common law.’ [Citations.] These instances are ‘few and
restricted,’ [citations] and fall into essentially two categories: those in which a federal
rule of decision is ‘necessary to protect uniquely federal interests,’ [citation] and those in
which Congress has given the courts the power to develop substantive law.”).


                                                  9
‘uniform federal rule[s]’ of res judicata.” (Taylor, supra, 553 U.S. at p. 891.)
      We read the holding in Taylor as an unequivocal directive that federal claim
preclusion law applies in this case, without reference to California law. Long before
Taylor, many California cases recognized that “[a] federal court judgment has the same
effect in the courts of this state as it would in a federal court.” (Martin v. Martin (1970)
2 Cal.3d 752, 761; see also Younger v. Jensen (1980) 26 Cal.3d 397, 411; Levy v.
Cohen (1977) 19 Cal.3d 165, 173; Nathanson v. Hecker (2002) 99 Cal.App.4th 1158,
1163; Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442, 1452; Merry v.
Coast Community College Dist. (1979) 97 Cal.App.3d 214, 222–223.) These cases now
seem prescient. The CDCR reads them narrowly, arguing that federal law is relevant
only to the extent consistent with California law, a notion taken from dicta in a footnote
in a case that did not involve the preclusive effect of a federal judgment.7 The
argument is creative, and might have been plausible before 2008, but giving federal law
such a subordinate role in the face of the high court’s holding in Taylor strikes us as
inconsistent with the supremacy clause. (U.S. Const., art. VI, cl. 2.)
      Citing City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077 and
several other cases which rely on California claim preclusion law,8 the CDCR insists it
has long been settled that when an action “is filed in state court and the defendants
claim the suit is barred by a final federal judgment, California will determine the res

      7
         Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 585, footnote 3.
      8
         Franceschi v. Franchise Tax Bd. (2016) 1 Cal.App.5th 247, 259; Gamble, supra,
229 Cal.App.3d at page 898; Johnson v. American Airlines, Inc. (1984) 157 Cal.App.3d
427, 432–433. These cases nod in the direction of federal law by citing it for background
principles (Johnson) or only to determine whether the judgment at issue was final and on
the merits (Gamble, Franceschi), but then use California law to determine the ultimate
preclusive effect of the judgment. For this “mix and match” approach, Franceschi and
Gamble cite Agarwal v. Johnson (1979) 25 Cal.3d 932, 954, disapproved on another
ground in White v. Ultramar (1999) 21 Cal.4th 563, 574, footnote 4, which applies
California law to determine whether a prior federal judgment was “ ‘[a] valid final
judgment on the merits in favor of a defendant [and therefore] serves as a complete bar to
further litigation on the same cause of action’ ” without any consideration of federal law
or whether it might apply.
                                                10
judicata effect of the prior federal court judgment on the basis of whether the federal
and state actions involve the same primary right.” The CDCR also claims, without
authority, that “[f]ederal law does not, and should not, govern the preclusion of state
claims in state court against a state entity defendant.” But none of the cases the CDCR
relies upon as declarative of settled law addresses Semtek, either on its own terms or in
light of Taylor. Guerrero criticizes the approach to federal-state choice-of-law issues in
these cases as “haphazard.” We would not put it that baldly since the ground has
shifted in this area, and it often does not matter whether federal or state law applies in
any event. But whatever explains the lack of precise attention to choice-of-law in the
Simi Valley line of cases, we believe they fail to capture the high court’s latest
guidance.
      The only California case we have found that takes account of the changed
landscape following Semtek, correctly stating the rule announced in Taylor—oddly,
without citing it, even though Taylor had been on the books by then for more than a
year—holds that “where a prior federal judgment was based on federal question
jurisdiction, the preclusive effect of the prior judgment of a federal court is determined
by federal law.” (Louie v. BFS Retail & Commercial Operations, LLC (2009)
178 Cal.App.4th 1544, 1553, italics added (Louie).) We think Louie was right.9

      9
         The highest appellate courts in other states that have explicitly addressed the
question in a considered way have been unanimous in reaching the same conclusion
Louie did. (See Donnelly v. Eklutna, Inc. (Alaska 1999) 973 P.2d 87, 92, fn. omitted
[Where the prior federal judgment was in a case asserting claims under the federal Alaska
Native Claims Settlement Act, the Alaska Supreme Court holds “we must look to federal
law to determine the preclusive effect of the federal litigation. Otherwise, federal
judgments would be subject to the uncertainties of state law wherever a litigant chose to
bring a subsequent suit”]; Ames v. JP Morgan Chase Bank, N.A. (Ga. 2016) 783 S.E.2d
614, 618, citing Taylor, supra, 553 U.S at p. 891 [Supreme Court of Georgia holds, “[i]f
the federal decision was rendered under the court’s federal question jurisdiction, the
uniform federal rules of preclusion declared by the United States Supreme Court are
applied”]; Garcia v. Prudential Ins. Co. of America (Nev. 2013) 293 P.3d 869, 872, citing
Semtek, supra, 531 U.S. at p. 507 and Taylor, supra, at 533 U.S. at p. 891 [Supreme
Court of Nevada holds that “federal common law governs claim preclusion with respect

                                                11
“Where a federal court, in a case brought under [federal] and state . . . laws, does not
resolve any issue of the state . . . laws, the federal courts will dismiss the state claims
without prejudice to their being filed in state court, even where the state . . . statutes
incorporate the [federal law].” (Louie, at p. 1555.) That was the case in Louie, which
involved claims brought under the federal Americans with Disabilities Act (ADA) and
its California statutory counterpart. The federal consent decree there—which was, of
course, a final judgment—barred injunctive and declaratory relief based on ADA
violations, but expressly carved out damages claims based on state law. (Louie, at
pp. 1557–1558.) Applying federal claim preclusion law, while recognizing that state
law called for the same result (id. at p. 1554 [“we look to the preclusive effect under
federal law, though we observe federal law is consistent with California law in this
case”]), the court held that state law claims for damages remained available in a state
action despite the consent decree. (Id. at p. 1558.) The same analysis applies here.
     C.   Jurisdictional Competency Exception
       We agree with Guerrero that the trial court erred in applying California’s primary
rights doctrine, but that doctrine alone does not explain the court’s ruling here. Rather,


to a judgment by a federal court . . . . [¶] With regard to federal question cases, federal
common law endeavors to develop a uniform rule of preclusion”]; see also Wong v.
Cayetano (Hawai’i 2006) 143 P.3d 1, 16; Silver Eagle Mining Co. v. State (Idaho 2012)
280 P.3d 679, 682; Reeder v. Succession of Palmer (La. 1993) 623 So.2d 1268, 1271;
Brown v. Osier (Maine 1993) 628 A.2d 125, 127. Cf. Paramount Pictures Corporation v.
Allianz Risk Transfer (N.Y. 2018) 96 N.E.3d 737, 742 (plurality) [“the Supreme Court
has been unequivocal: Though ‘no federal textual provision addresses the claim-
preclusive effect of a federal-court judgment in a federal-question case,’ the Court has
‘long held that States cannot give those judgments merely whatever effect they would
give their own judgments, but must accord them the effect that this Court prescribes.’ ”].)
There was some debate among the New York Court of Appeal judges in Paramount
about what the rule is where the federal judgment rests on both federal question and
diversity jurisdiction (compare Paramount, at pp. 741 & fn. 3 (plur. opn.); id. at p. 749–
750 (conc. opn. of Rivera, J.); id. at pp. 755–757 (dis. opn. of Wilson, J.)), but no judge
questioned that where the federal judgment rests purely on federal question jurisdiction,
federal common law governs its preclusive effect.


                                                 12
the court appears to have proceeded on the understanding that federal law recognizes an
exception to claim preclusion that “salvages” Guerrero’s state claims for damages in
these circumstances, while California law does not. This, in our view, sets up a false
conflict. Under section 26(1)(c) of the Second Restatement, claim preclusion does not
apply where “[t]he plaintiff was unable to rely on a certain theory of the case or to seek a
certain remedy or form of relief in the first action because of the limitations on the
subject matter jurisdiction of the courts . . . and the plaintiff desires in the second action
to rely on that theory or to seek that remedy or form of relief.” (See Marrese v. American
Academy of Ortho. Surgeons (1985) 470 U.S. 373, 382.)10 There is no denying that the
basis for the dismissal of Guerrero’s state law claims for damages in the Federal Action,
the Eleventh Amendment—which is jurisdictionally disabling in an Article III court,
absent a waiver—was a limitation on “the subject matter jurisdiction” of the district
court.11 Contrary to what the trial court appears to have believed, this exception has been




       10
           See also section 26(1)(c), comment c(1) of the Second Restatement (“Where
formal barriers existed against full presentation of claim in first action (Subsection
(1)(c)). The general rule of § 24 [Dimensions of ‘Claim’ for Purposes of Merger or
Bar—General Rule Concerning ‘Splitting’] is largely predicated on the assumption that
the jurisdiction in which the first judgment was rendered was one which put no formal
barriers in the way of a litigant’s presenting to a court in one action the entire claim
including any theories of recovery or demands for relief that might have been available to
him under applicable law. When such formal barriers in fact existed and were operative
against a plaintiff in the first action, it is unfair to preclude him from a second action in
which he can present those phases of the claim which he was disabled from presenting in
the first.”).
        11
           Freeman v. Oakland Unified School District (9th Cir. 1999) 179 F.3d 846, 847
(“The Eleventh Amendment is a limit on federal courts’ jurisdiction. [Citation.]
Dismissals for lack of jurisdiction ‘should be . . . without prejudice so that a plaintiff may
reassert his claim in a competent court.’ ”).


                                                  13
recognized in both federal law and California law.12 Thus, claim preclusion does not
apply here under either federal or California law.
       Faced with a well-established claim preclusion exception, the CDCR attempts to
offer a trump card. According to the CDCR, under Acuña v. Regents of University of
California (1997) 56 Cal.App.4th 639 (Acuña) there is, in effect, an exception to the
exception. Even where a plaintiff suffers the dismissal of state law claims in federal
court under the Eleventh Amendment, the CDCR argues, Acuña holds that claim
preclusion forecloses the pursuit of those claims in state court if, upon the federal court’s
prior dismissal, the plaintiff elects to continue pursuing federal claims in federal court,
and then takes the surviving claims to judgment, rather than voluntarily dismissing
everything and re-filing all claims in state court. The trial court found Acuña to be “on
point” and followed it, observing that plaintiff Acuña’s state law claims were “dismissed
on 11th Amendment grounds, just as here.” This, too, was error.
       To unravel the problem, we must start with Mattson v. City of Costa Mesa (1980)
106 Cal.App.3d 441 (Mattson), on which Acuña relied. In that case, the plaintiff brought
a federal action asserting federal civil rights claims, invoking federal question


       12
           Federal law—Feminist Women’s Health Center v. Codispoti (9th Cir. 1995)
63 F.3d 863, 869 (“An exception to the general rule of claim preclusion exists where
‘[t]he plaintiff was unable to rely on a certain theory of the case or to seek a certain
remedy or form of relief in the first action because of limitations on the subject matter
jurisdiction of the courts.’ Rest.2d Judgments, § 26(1)(c)”); Burgos v. Hopkins (2d Cir.
1994) 14 F.3d 787, 790 (“where a plaintiff was precluded from recovering damages in the
initial action by formal jurisdictional or statutory barriers, not by plaintiff’s choice, a
subsequent action for damages will not normally be barred by res judicata even where it
arises from the same factual circumstances as the initial action”); see also United States v.
Tohono O’odham Nation (2011) 563 U.S. 307, 328–329 (conc. opn. of Sotomayor, J.).
California law—Le Parc Community Assn. v. Workers’ Comp. Appeals Bd. (2003)
110 Cal.App.4th 1161, 1170 (“[a]n important exception to the general rule of
indivisibility of a primary right permits a second action on a different legal theory if the
plaintiff was precluded from asserting that theory in the first action because of limitations
on the subject matter jurisdiction of the first forum,” citing Rest.2d Judgments,
§ 26(1)(c)); see also Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 344.


                                                 14
jurisdiction, together with state law tort claims based on what was once known as
pendent federal jurisdiction. (Mattson, at p. 444.)13 The federal court dismissed the state
law claims, and proceeded to try the federal claims, which resulted in a judgment for the
defense. (Mattson, at p. 445.) While the federal action was still pending, but before
entry of judgment, the state court dismissed the revived state claims on grounds of res
judicata. (Ibid.) On appeal, the Court of Appeal affirmed under California claim
preclusion law, interpreted in light of the Restatement First of Judgments (First
Restatement), section 62 and the Fifth Tentative Draft of the Second Restatement (Tent.
Draft. No. 5), sections 61 and 61.1. (Mattson, at pp. 448–450, 452–454.)14
       The Mattson court described the circumstance presented there as one where the
federal court “in the first action has discretionary jurisdiction and declines to exercise
[it].” (Mattson, supra, 106 Cal.App.3d at p. 451.) That situation, the court said, is what
may be described as the “state court-federal court pendent-jurisdiction problem.” (Ibid.)
While the First Restatement did not specifically deal with the issue, the court explained
that “[s]ome effort has been made by the authors of the Restatement Second of
Judgments, Fifth Tentative Draft, to deal with [it].” (Mattson, at p. 452.) After
summarizing in detail pertinent Restatement principles—drawing primarily from
comment j to the First Restatement, section 62, as carried forward in comment g, section
61 of the Second Restatement (Tent. Draft No. 5)—the court observed that, generally, a
“plaintiff, having voluntarily brought his action in a court which can grant him only
limited relief, cannot insist upon maintaining another action on the claim.” (Mattson, at

       13
          See United Mine Workers of America v. Gibbs (1966) 383 U.S. 715, 725
(pendent jurisdiction extends to state claims sharing “common nucleus” of fact with
federal claims). The term pendent jurisdiction is now outdated. In 1990, Congress
codified the judicial doctrines of pendent and ancillary jurisdiction, employing the term
“supplemental jurisdiction.” (28 U.S.C. § 1367.)
       14
          The Fifth Tentative Draft of the Second Restatement was the immediate
precursor to the Second Restatement, published in 1982, two years after Mattson was
decided. Except for new section numbering and new letter designation of comments,
there are no material differences between the Fifth Tentative Draft and the Second
Restatement, as pertinent here.
                                                 15
pp. 448, 452.)
       But Mattson must be read closely. The court was careful not to attach preclusive
consequences to the mere act of filing state claims in federal court, for that would have
had a “chilling effect” on plaintiffs’ ability to take related federal claims into a federal
forum. (Mattson, supra, 106 Cal.App.3d at p. 454.) Rather, the heart of the court’s
rationale was this: “The initial choice by the plaintiff to file suit in federal court will not
necessarily result in splitting his cause of action, because the federal court may well
exercise pendent jurisdiction over the nonfederal claim. However, when the federal court
has been requested to and has declined to exercise pendent jurisdiction over the
nonfederal claim, the plaintiff is presented with a new choice. He may proceed to trial on
the federal claim or, usually, he may elect to dismiss the federal claim without prejudice
[citations]. Once it is known that the federal court will not exercise pendent jurisdiction
over the state claim, plaintiff’s proceeding to trial in the federal court on the federal claim
alone will necessarily result in splitting the plaintiff’s cause of action, and that fact should
be apparent to the plaintiff.” (Id. at pp. 454–455, italics added.)
       “In such circumstances,” the Mattson court explained, “the rule that would best
accommodate the rights of the plaintiff to fully litigate his claim and to invoke the
jurisdiction of the federal court and the right of the defendant, the courts and the public to
be free of multiple litigation of the same cause of action, is that once the federal court has
declined to exercise pendent jurisdiction over the state claim, if the plaintiff then elects to
proceed to trial and judgment in the federal court, his entire cause of action is either
merged in or barred by the federal court judgment so that he may not thereafter maintain
a second suit on the same cause of action in a state court. [¶] A contrary rule would
invite manipulation. It would permit a plaintiff halfheartedly to request the federal court
to exercise pendent jurisdiction, offer little resistance to any argument by the defendant
against its exercise, and hope that the federal court would decline to exercise pendent
jurisdiction and thereby reserve to the plaintiff a second chance to prevail in a state court
action should he be successful in the federal court.” (Mattson, supra, 106 Cal.App.3d at
p. 455.)
                                                  16
       Acuña extended the Mattson rule to a case where the plaintiff landed in federal
court by removal, not by choice. The case began with a state court action asserting
employment discrimination claims under the federal Age Discrimination in Employment
Act (ADEA) and for race, ethnicity and age bias under FEHA. (Acuña, supra,
56 Cal.App.4th at pp. 643–644.) One of the defendants, the University of California,
removed the action to federal court and brought a motion to dismiss on Eleventh
Amendment grounds. (Acuña, at p. 644.) The plaintiff responded with his own motion
to remand the FEHA claims to state court. (Acuña, at p. 644.) The motion to remand
was granted (not the motion to dismiss) (ibid.), and the federal case proceeded to trial on
the ADEA claim, which resulted in a plaintiff’s judgment. (Acuña, at p. 644.) Seeking
additional relief (punitive damages were not available on the ADEA claim), the plaintiff
attempted to pursue his FEHA claims on remand in state court, but the court granted
summary adjudication against him on res judicata grounds. (Acuña, at pp. 644–645.)
Applying California law, the court held the federal and state claims were based on the
same primary right—“ ‘the right to be free from employment discrimination’ ”—and that
they were merged into the federal judgment and therefore foreclosed. (Id. at p. 649.)
       We are not persuaded that Acuña is controlling. First of all, it is not clear to us
that, as the Mattson court put the matter, the federal court in Acuña was requested to and
declined to exercise its discretionary supplemental jurisdiction over state law claims.
(Mattson, supra, 106 Cal.App.3d at p. 451.) Plaintiff Acuña’s state law claims were
dismissed on his own motion, presumably under rule 41(a) of the Federal Rules of Civil
Procedure (28 U.S.C.), application for voluntary dismissal. Thus, he split his claims by
choice, not under compulsion of a federal court’s determination that it had no power to
hear them.15 Had there been an Eleventh Amendment dismissal, it would have triggered

       15
          See Harris v. Grimes (2002) 104 Cal.App.4th 180, 188 (Harris) (Mattson does
not apply where “federal court, instead of a party, splits a cause of action. . . . California’s
prohibition on splitting causes of action ‘does not aid [a defendant when] it was not [the
plaintiff] who made the decision to “split” causes of action between state and federal
court. [The plaintiff] tendered the entire case to the federal court, which had pendent

                                                  17
section 26(1)(c) of the Second Restatement (§ 61.2(1)(c) of Tent. Draft No. 5), a claim
preclusion exception neither Mattson nor Acuña cites or discusses. Because the dismissal
in Acuña was based on the plaintiff’s considered election to dismiss only some of his
claims in federal court, the case falls comfortably within the Mattson rule. That is not the
situation we have here. Guerrero’s claims were dismissed on Eleventh Amendment
grounds, which was not a discretionary disposition. If there was a tactical choice on this
record, it was exercised by the CDCR—to waive Eleventh Amendment immunity, or to
face claims for damages in a separate action in state court.
       What must ultimately carry the day, however, no matter how Acuña is read, is that it
predates Semtek and Taylor. Mattson, on which Acuña relies, has been both praised (see
Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 525 (conc. opn. of Corrigan, J.)
[“[t]he Mattson court carefully considered the applicable Restatement principles, and its
reasoning was sound”]) and criticized (see Harris, supra, 104 Cal.App.4th at pp. 188–189
[declining to follow “two-decade old” Mattson rule as outdated in light of case law
adopting a more recent, “widely endorsed pronouncement of the law” as reflected in the
Second Restatement].) We are inclined to think Harris was correct about Mattson, albeit
for somewhat different reasons,16 but that is not the dispositive point here. Just as in


jurisdiction to determine the state causes of action but declined to exercise it. [Citations.]
A federal court’s discretionary refusal to exercise pendent jurisdiction over a state claim
does not bar further litigation of the state claim in state court.’ ”); Lucas v. County of Los
Angeles (1996) 47 Cal.App.4th 277, 286 (same).
       16
          The Mattson court’s analysis of the applicable restatement principles centers on
section 61.1, comment e of the Fifth Tentative Draft of the Second Restatement, which
became section 24, comment g of the Second Restatement. Structurally, section 24
(entitled “Dimensions of ‘Claim’ for Purposes of Merger or Bar—General Rule
Concerning Claim Splitting”) is followed by section 25 (entitled “Exemplifications of
General Rule Concerning Splitting”), which is followed in turn by section 26 (entitled
“Exceptions to the General Rule Concerning Claim Splitting”). As carried over from the
First Restatement, section 62, comment j, the explanatory language Mattson relies upon
most heavily, which ultimately became section 24, comment g—concerning the
consequences of a “plaintiff having voluntarily brought his action in a court that can only
grant him limited relief”—is an illustration of the general rule in application. But the

                                                 18
Louie, “we look to the preclusive effect [of the judgment in the Federal Action] under
federal law” (Louie, supra, 178 Cal.App.4th at p. 1559), and find it dispositive that neither
Mattson nor Acuña has any foundation in federal law. Accordingly, we conclude that
Guerrero is free to pursue his state claims for damages in superior court. We take no view
on the extent to which, if at all, relitigation of issues implicated by those claims may be
necessary. The trial court should now proceed to make that determination after applying
the doctrine of issue preclusion
                                   IV. DISPOSITION
       The judgment dismissing Guerrero’s state claims is reversed and remanded for
further proceedings consistent with this opinion.




Second Restatement makes clear that this illustrative scenario refers to the bringing of a
subsequent suit within “the same system of courts.” Section 24, comment g; see, e.g.,
Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th 901, 907 (claim preclusion
aspect of res judicata applies to small claims court judgments). Moreover, the Second
Restatement adds, for the first time, a clarifying comment specifically addressing “special
problems of state and federal competencies,” section 25, comment e, which cross-
references a new exception for situations where the initial claim was brought in a court
with “limitations on . . . [its] subject matter jurisdiction . . . or restrictions on [its]
authority.” Section 26(1)(c). Upon consideration of sections 24, 25 and 26 of the Second
Restatement, when read together—and notably the cross-referencing within these
interrelated sections in the comment language accompanying them—it is apparent that
the drafters took care to ensure that the general claim-splitting rule, in section 24, as
illustrated in application, in section 25, dovetails with the jurisdictional competency
exception, in section 26(1)(c), and that, as shown by comment e, section 25, this newly
recognized exception limits the preclusive effect of federal judgments in state court.
Although the subtle interrelationship of these provisions is just as evident in the Fifth
Tentative Draft as it is in the Second Restatement as published, Mattson fails to take it
into account.
                                                 19
                                               _________________________
                                               Streeter, Acting P.J.


     We concur:


     _________________________
     Tucher, J.


     _________________________
     Lee, J.*




      *
        Judge of the Superior Court of California, County of San Mateo, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.



      A147507/Guerrero v. California Department of Corrections & Rehabilitation
                                              20
Trial Court:               San Francisco City & County Superior Court.

Trial Judge:               Honorable Curtis E. A. Karnow.

Counsel for Appellant:     The Legal Aid Society—Employment Law Center,
                           Christopher Ho, Alexis Alvarez for Plaintiff and
                           Appellant.

Counsel for Respondent:    Kamala D. Harris, Attorney General, Dane R. Gillette
                           and Gerald A. Engler, Assistant Attorney General,
                           Miguel Neri and Jorge Aguilar II, Deputy Attorneys
                           General, for Defendant and Respondent.




A147507/Guerrero v. Department of Corrections and Rehabilitation

                                      21
