........................................................Chapter 9: Prior Adjudication

.....................................................................B. Res Judicata
1. Claim Preclusion
p. 928, Note 3:
(e) A jury found by special verdict that a company selling celebrity memorabilia used the name of the plaintiff without his consent on 14,060 certificates opining to the authenticity of various collectible autographs and memorabilia. By knowingly and without authorization using the plaintiff's name to sell these goods, is the defendant liable to the injured party for one or 14,060 violations of his primary right to protect wrongful appropriation of his name? Miller v. Collectors Universe, Inc., 159 Cal.App.4th 988, 72 Cal.Rptr.3d 194 (2008).

(f) In March 2000, Richard Boeken brought an action against Philip Morris USA, Inc., alleging that its cigarettes caused Mr. Boeken's terminal lung cancer. While Mr. Boeken's lawsuit was pending, Mrs. Boeken brought a separate action under common law against Philip Morris seeking damages for loss of consortium. She alleged that Mr. Boeken, as a result of his illness, was "unable to perform the necessary duties as a spouse" involving "the care, maintenance and management of the family home" and that plaintiff suffered a "loss of love, affection, society, companionship, sexual relations, and support" and that he would "not be able to perform such work, services, and duties in the future." Mrs. Boeken later voluntarily dismissed her loss of consortium claim with prejudice. After Mr. Boeken died from lung cancer, Mrs. Boeken filed an action under California's wrongful death statute for "[g]eneral damages for the loss of love, companionship, comfort, affection, society, solace, and moral support" that she suffered as the result of her husband's death. Does Mrs. Boeken's wrongful death action involve the same primary right as her prior loss of consortium action? Boeken v. Philip Morris USA, Inc., 159 Cal.App.4th 1391, 72 Cal.Rptr.3d 454, review granted and opinion superseded, 2008 WL 2265187 (2008).

2. Issue Preclusion
p. 939, Note 4: Another district of the Court of Appeal has agreed with Newport Beach Country Club that the modern rule of the Restatement of Judgments 2d § 27 is followed in California. Zevnik v. Superior Court, 159 Cal.App.4th 76, 70 Cal.Rptr.3d 817 (2008). In a thorough opinion reviewing a host of authorities, Zevnik avoided the conflict with the nineteenth century state Supreme Court precedent by noting that it had addressed only a question of claim, not issue, preclusion. Thus, Zevnik held that the appellate court judgment entitled to issue preclusion incorporates the determinations made by the trial court in support of the appellate court's stated ground of decision. Issue preclusion does not extend to any trial court determinations made in support of alternative grounds for its decision that were not reviewed by the appellate court.

p. 949, Note 4: For a case carefully applying federal and state rules of claim and issue preclusion, see Burdette v. Carrier Corp., 158 Cal.App.4th 1668, 71 Cal.Rptr.3d 185 (2008).

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Reserved for future use

......................................................................A. Stare Decisis
A. Stare Decisis
.....3. Retroactivity
.....5. Judicial Estoppel
..