Not Final

Contreras-Velazquez v. Family Health Cntrs. of San Diego, No.D075577 (D4d1 Mar. 18, 2021)

In rendering a verdict that Defendant isn’t liable, Jury in trial #1 makes a bunch of findings. But the trial court found that there was inadequate evidence to support that result. It granted a new trial on liability, which was affirmed on appeal. At retrial, Defendant argued that certain of the findings in trial #1 were issue preclusive on trial #2. 

But that doesn’t make sense. Issue preclusion or collateral estoppel requires the issue to have been decided in the first proceeding in a decision that was final and on the merits. A jury’s factual finding, upset by a new trial order that is then affirmed on appeal is definitely not final. The effect of a new trial grant is to vacate the judgment and the findings that support it. It thus cannot be the case that factual findings that undergird a verdict that is vacated on a new trial grant have any finality to them. Indeed, if the new trial grant is affirmed, there is no way that the findings could have been reviewed and affirmed on the merits in the first appeal. 

Affirmed.