Supreme Court of California Justia
Docket No. S218597
DKN Holdings LLC v. Faerber

Filed 7/13/15


Plaintiff and Appellant,
Ct.App. 4/2 E055732, E056294
Riverside County
Super. Ct. No. RIC1109512
Defendant and Respondent.

We granted review to clarify a bedrock principle of contract law: Parties
who are jointly and severally liable on an obligation may be sued in separate
actions. Although long-standing case law has found separate actions permissible,
the Court of Appeal here held that a second suit is barred after entry of judgment
against one of the contracting parties. The court reasoned that a breach of contract
invades a single primary right, and the plaintiff could not split its breach of
contract cause of action into multiple claims. This reasoning was erroneous
because joint and several liability does not implicate the “primary rights”
doctrine.1 Moreover, the facts here do not support preclusion. Although a breach
of contract may constitute a single wrong, the plaintiff has separate breach of

Under the “primary rights” theory, a cause of action arises from the
invasion of a primary 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. (Boeken v. Philip Morris USA, Inc. (2010) 48
Cal.4th 788, 797-798 (Boeken).)

contract claims against each of the defendants alleged to be jointly and severally
Acting on behalf of a company called Evolution Fitness, Roy Caputo,
Wade Faerber, and Matthew Neel leased commercial space in a shopping center to
operate a fitness club.2 Their 10-year lease with DKN Holdings LLC (DKN)
provided that multiple parties who signed as lessors or lessees “shall have joint
and several responsibility” to comply with the lease terms. (Italics added.) The
parties do not dispute that Caputo, Faerber, and Neel were jointly and severally
liable on this contract.
Caputo later sued DKN for fraud, breach of contract, unfair business
practices, and breach of fiduciary duty (the Caputo action). Among other things,
he alleged DKN had failed to disclose that construction on a driveway into the
shopping center would not begin for over a year and that state regulations
prohibited cutting back vegetation that made the gym less visible. Caputo sought
damages and rescission of the lease. DKN cross-complained for rent and other
monies due. Although the cross-complaint named all three lessees, it was served
on Caputo alone. Faerber and Neel were subsequently dismissed as cross-
defendants.3 After a bench trial, the court rejected all of Caputo‟s claims and

Another owner, CDFT Limited Partnership, was named in the lease but is
not a party to this action.
Although it was not previously disputed that these dismissals were without
prejudice, Faerber now contends the action against him was abandoned and thus
subject to dismissal with prejudice. (Code Civ. Proc., § 581, subd. (d).) This
belated claim lacks merit. DKN formally dismissed Faerber and Neel from the
cross-complaint. Over two years later, DKN filed an amended cross-complaint
with a caption that listed Faerber and Neel along with Caputo. When concerns
were raised that the amendment would revive claims against these parties, DKN
stipulated that Faerber and Neel “remain dismissed from this litigation.” As far as
the record shows, the amended cross-complaint was never served on Faerber, nor,
for that matter, did the court dismiss any claims against Faerber as abandoned.

awarded over $2.8 million on DKN‟s cross-complaint. Judgment was entered on
June 20, 2011.4
Shortly before the statement of decision in the Caputo action was filed,
DKN sued Faerber and Neel for breach of the lease.5 Faerber demurred, arguing
that, because DKN‟s rights under the lease had been adjudicated in the Caputo
action, suit against Faerber was barred by the rule against splitting a cause of
action. (See Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894.) In opposition, DKN
argued California law permits separate actions against parties who are jointly and
severally liable. The trial court sustained the demurrer without leave to amend and
entered judgment for Faerber. The Court of Appeal affirmed.6
The parties frame the issue here as a clash between two venerable doctrines,
debating whether the rule of joint and several liability must yield to rules
governing the preclusive effect of judgments. The characterization is inapt
because the doctrines are separate. Neither need be subordinated to the other.
While acknowledging that separate actions are permitted against joint and several
obligors, the Court of Appeal held that when one of the actions has resulted in a
final judgment on the merits, that judgment bars assertion of the same claims in

DKN did not seek to add Faerber or Neel as additional judgment debtors.
Under Code of Civil Procedure section 989, joint debtors who were named but not
served may be ordered to show cause why they should not be bound by a
judgment on the obligation. (Brenelli Amedeo, S.P.A. v. Bakara Furniture, Inc.
(1994) 29 Cal.App.4th 1828, 1840.) However, settled law holds that section 989
procedures are permissive, not mandatory. (Brenelli, at p. 1840) Failure to pursue
this remedy does not extinguish the plaintiff‟s right to recover against joint and
several obligors in a separate lawsuit. (Melander v. Western Nat. Bank (1913) 21
Cal.App. 462, 479-480.)
Faerber allegedly agreed to indemnify Neel for any liability Neel incurred.
The complaint‟s second cause of action asserts that this agreement makes Faerber
liable to DKN for Neel‟s share of unpaid rent.
In a separate appeal, the court also affirmed a postjudgment order
dismissing Neel. That appeal is not before us.

any other action. In other words, although separate suits on a contract are
technically allowed, the lower court held only one can proceed to judgment if the
suits allege the same claims. Precedent provides no support for this conclusion.
As we explain, there is no conflict between the doctrines of claim
preclusion and joint and several liability. Parties who are jointly and severally
liable on a contract may be sued in separate actions. Judgment in the first action
does not bar judgments in later actions, even when they allege the same claim of
wrongdoing, as long as the suits are against different parties.
Parties Who Are Jointly and Severally Liable May Be Sued in Separate

At common law, when multiple parties promised the same performance,
they were presumed to be jointly obligated absent a clear indication otherwise.
(Farmers’ Exchange Bank v. Morse (1900) 129 Cal. 239, 243.) Parties who are
jointly liable are each responsible for their share of a total obligation. When
enforcement was sought, the common law rule required that all jointly liable
parties be joined in a single suit that would determine the total amount of their
shared liability. (Ibid.; see Harrison v. McCormick (1886) 69 Cal. 616.) This
joinder requirement sometimes made enforcement difficult, if not impossible.
(See 9 Corbin on Contracts (rev. ed. 2007) § 52.1, p. 279.)
California and nearly all other states have passed statutes to ameliorate the
harshness of the common law‟s compulsory joinder rule. (9 Corbin, supra, § 52.1,
pp. 280-281.) The typical solution was to convert “joint” obligations into “joint
and several” obligations. (Id., § 52.1, p. 281.) A joint and several contract is
considered to be a contract that is made both separately with each promisor and
jointly with all the promisors. (12 Williston on Contracts (4th ed. 2012) § 36:1,
pp. 801-802.) Parties to a joint and several contract are thus bound jointly, so that
they are liable for the entire obligation, and severally, so that each may be sued
separately for the entire loss. (See id., § 36:1, p. 803.) The change to joint and
several liability allowed individual promisors to be sued for enforcement of a

contract without joining all copromisors. (9 Corbin, supra, § 52.1, p. 281.) To
this end, Civil Code section 1659 provides, “Where all the parties who unite in a
promise receive some benefit from the consideration, whether past or present, their
promise is presumed to be joint and several.” Similarly, Civil Code section 1660
states, “A promise, made in the singular number, but executed by several persons,
is presumed to be joint and several.”
It has long been settled that contracting parties who are severally liable, or
subject to joint and several liability, may be sued in the same action or in separate
actions at the plaintiff‟s option. (Goff v. Ladd (1911) 161 Cal. 257, 260; Moreing
v. Weber (1906) 3 Cal.App. 14, 21-22.) The plaintiff “does not lose the right to
the several liability of a several obligor until the obligation is fully satisfied,”
notwithstanding that he may have obtained a judgment against other severally
liable obligors. (Melander v. Western Nat. Bank, supra, 21 Cal.App. at p. 475.)
This principle was explored in some detail in Williams v. Reed (1952) 113
Cal.App.2d 195 (Williams I) and Williams v. Reed (1957) 48 Cal.2d 57 (Williams
In the Williams litigation, defendant Reed and three others promised to pay
a debt totaling $40,000. (Williams I, supra, 113 Cal.App.2d at p. 197.) After they
defaulted, Reed entered a separate agreement promising to pay $35,000 of the
debt. (Id. at pp. 197-199.) He failed to pay, and the creditor obtained a judgment
against him for the $35,000, plus interest. (Id. at p. 199.) When Reed failed to
pay that judgment as well, the creditor sued Reed and his copromisors on the
original notes. (Ibid.) The copromisors argued the action was barred because the
creditor had not joined them in the initial suit against Reed and had obtained a
judgment against Reed alone. (Id. at pp. 203-204.) The Court of Appeal rejected
this argument. It explained that while joint obligors are indispensable parties and
may not be sued separately, the same is not true when an obligation is joint and
several. (Id. at p. 204.) “In such a case the judgment obtained against one is not a
bar to an action against the remaining joint and several obligors. „Nothing short of
satisfaction in some form constitutes a bar . . .‟ [citation].” (Ibid., italics added.)
In later proceedings, we too concluded that the creditor was not required to join
the co-promisors in its suit against Reed because their obligations on the
promissory notes were joint and several. (Williams II, supra, 48 Cal.2d at pp. 64-
65.) We explained that the judgment against Reed “add[ed] nothing to the
picture” except insofar as it benefitted the copromisors by partially exhausting the
creditor‟s rights against Reed. (Id. at p. 65.) That judgment did not preclude the
subsequent action, we repeated, because “ „[n]othing short of satisfaction in some
form constitutes a bar‟ against an action against the comakers” of a promise. (Id.
at p. 66.)7
The Court of Appeal here asserted our discussion of joint and several
liability in Williams II was “ „wrong‟ and incorrectly state[d] the law” if it would
permit “an obligee, such as DKN, to obtain separate judgments in separate actions
against joint and several obligors, based on the same claims.” The court erred.
The principle it rejected is fundamental to the concept of joint and several liability
and is set out in the Restatements of both Contracts and Judgments. The
Restatement Second of Contracts states: “A judgment against one or more
promisors does not discharge other promisors of the same performance unless

The same rule applies to joint and several tortfeasors. “ „The general rule
followed in America is that the liability of two or more persons who jointly engage
in the commission of a tort is joint and several, and gives the same rights of action
to the person injured as a joint and several contract. Consequently, a judgment
recovered against one of two joint tort feasors, remaining unsatisfied, is no bar to
an action against the other for the same tort.‟ [Citation.]” (Grundel v. Union Iron
(1900) 127 Cal. 438, 440-441.) An injured party may therefore sue all
those responsible together, or in separate actions, and may proceed to judgment
against any or all of them until fully compensated for the injury. (Cole v. Roebling
Construction. Co.
(1909) 156 Cal. 443, 447-448.) “The well-settled rule is that no
bar arises as to any of the wrongdoers until the injured party has received
satisfaction, or what in law is deemed its equivalent, and a judgment against one
wrongdoer which remains wholly unsatisfied is not such satisfaction.” (Id. at
p. 449.)

joinder of the other promisors is required by the rule stated in § 290.”8 (Rest.2d,
Contracts, § 292.) An official comment explains the historical development of the
rule: “Modern procedural reforms and statutes relating to joint obligations have
eliminated the foundations on which the all-or-none rule [of compulsory joinder]
rested. In most States joinder of promisors of the same performance is permitted
but not required, and judgment against one does not bar action against his co-
obligor, whether there is a joint duty or several duties or both.” (Id., § 291, com.
c, p. 418.)
Similarly, the Restatement Second of Judgments provides that a “judgment
against one person liable for a loss does not terminate a claim that the injured
party may have against another person who may be liable therefor.” (Rest.2d,
Judgments, § 49.) The injured party has separate claims against each obligor,
regardless of whether the obligation arises from a tort or breach of contract. (Id.,
§ 49, com. a, p. 34.) The injured party may not “ „split‟ ” his claim against a
single obligor or present it in successive actions, and “[i]f he recovers judgment,
his claim is „merged‟ in the judgment so that he may not bring another action on
the claim against the obligor whom he has sued.” (Ibid.) “But the claim against
others who are liable for the same harm is regarded as separate. Accordingly, a
judgment for or against one obligor does not result in merger or bar of the claim
that the injured party may have against another obligor.” (Ibid., italics added.)
While the injured party ordinarily may not relitigate issues decided against him in
the first action (id., § 49, com. a, p. 35; see post, at pp. 13-14), “the rendition of
the judgment in the first action does not terminate the claims against other persons
who may be liable for the loss in question.” (Rest.2d, Judgments, § 49, com. a,
p. 35.) Indeed, because the judgment confirms the injured party‟s right to
recovery on the obligation, it would be anomalous to hold that the legal

Section 290 describes the compulsory joinder rule for joint contracts.
(Rest.2d, Contracts, § 290.)

confirmation of one obligor‟s liability should limit or extinguish the liability of
other obligors. (Ibid.)
Applying joint and several liability principles, DKN‟s suit against Faerber
was clearly permissible. Because Faerber, Caputo, and Neel were jointly and
severally liable on the lease, DKN had separate claims against each and was
entitled to pursue the claims in separate actions. (Williams II, supra, 48 Cal.2d at
pp. 64-65; Goff v. Ladd, supra, 161 Cal. at p. 260.) Furthermore, the judgment
DKN obtained in the Caputo action did not bar its right to seek recovery from
Faerber and Neel later. (See Rest.2d, Judgments, § 49, com. b, p. 36.) Although
the original judgment conclusively resolves DKN‟s rights against Caputo, and
may bear upon the total amount DKN is entitled to recover for breach of the lease
from all obligors (see post, at p. 14), it does not bar DKN from suing Caputo‟s
copromisors. Only a satisfaction of the obligation would do so. (See Williams II,
at p. 66.) Here, the judgment remained unpaid, and a separate suit was
Faerber protests that allowing separate suits against obligors is inefficient
because it subjects the parties, witnesses, and courts to multiple proceedings on the
same matter. This objection goes to the very nature of several liability, however,
and the Legislature implicitly rejected it in adopting the presumption that
contractual obligations are joint and several. (See Civ. Code, §§ 1659-1660.)
Faerber is really insisting on a return to the old rule of joint liability, which held
that contractual obligations had to be enforced in a single action. If an obligor
could not be joined, because he was outside the court‟s jurisdiction, for example,
the plaintiff forfeited the right to recover against him. (Rest.2d, Judgments, § 49,
com. a, p. 35.) As noted, these harsh consequences led to a liberalization of the
rule. (See ante, at pp. 4-5.)
Separate Actions Against Joint and Several Obligors Are Not Barred.
The long-settled law of joint and several liability should have made this an
easy case. However, the courts below perceived a conflict with the law governing
the preclusive effect of judgments. The Court of Appeal reasoned that, regardless
of whether joint and several liability rules permit separate actions, once “a final
judgment on the merits has been rendered in one action against a joint and several
obligor, res judicata will bar the assertion of identical claims against other joint
and several obligors, in a subsequent action, by parties bound by the judgment in
the prior action.” In other words, under the Court of Appeal‟s view, actions
against separate obligors are in a race to judgment, and a final judgment against
one obligor precludes the injured party from pursuing redress from any other
obligor, even though the obligation is nominally joint and several. This
interpretation runs counter to the essential principles that parties have a duty to
meet their contractual obligations and that those injured by a breach have a right to
be made whole. The perceived conflict is a mirage. In reality, the res judicata, or
preclusion, doctrine operates in harmony with joint and several liability principles
because it only bars repeated claims for the same relief between the same parties.
In fairness to the Court of Appeal, our terminology in discussing the
preclusive effect of judgments has been inconsistent and may have caused some
confusion. We have frequently used “res judicata” as an umbrella term
encompassing both claim preclusion and issue preclusion, which we described as
two separate “aspects” of an overarching doctrine. (E.g., Boeken, supra, 48
Cal.4th at p. 797; Teitelbaum Furs, Inc. v. Dominion (1962) 58 Cal.2d 601, 604
(Teitelbaum Furs).) Claim preclusion, the “ „ “primary aspect” ‟ ” of res judicata,
acts to bar claims that were, or should have been, advanced in a previous suit
involving the same parties. (Boeken, at p. 797.) Issue preclusion, the
“ „ “secondary aspect” ‟ ” historically called collateral estoppel, describes the bar
on relitigating issues that were argued and decided in the first suit. (Ibid.)
We have sometimes described “res judicata” as synonymous with claim
preclusion, while reserving the term “collateral estoppel” for issue preclusion.
(See Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen).) On
occasion, however, we have used the term “res judicata” more broadly, even in a
case involving only issue preclusion, or collateral estoppel. (See Bernhard v.
Bank of America (1942) 19 Cal.2d 807, 813.) We are not the only court to
sometimes use the term “res judicata” with imprecision. (See, e.g., Migra v.
Warren City School Dist. Bd. of Ed. (1984) 465 U.S. 75, 77, fn. 1.) To avoid
future confusion, we will follow the example of other courts and use the terms
“claim preclusion” to describe the primary aspect of the res judicata doctrine and
“issue preclusion” to encompass the notion of collateral estoppel. (See ibid.) It is
important to distinguish these two types of preclusion because they have different
Claim preclusion “prevents relitigation of the same cause of action in a
second suit between the same parties or parties in privity with them.” (Mycogen,
supra, 28 Cal.4th at p. 896.) Claim preclusion arises if a second suit involves:
(1) the same cause of action (2) between the same parties (3) after a final judgment
on the merits in the first suit. (Ibid.; In re Crow (1971) 4 Cal.3d 613, 622;
Teitelbaum Furs, supra, 58 Cal.2d at p. 604.) If claim preclusion is established, it
operates to bar relitigation of the claim altogether.
Issue preclusion prohibits the relitigation of issues argued and decided in a
previous case, even if the second suit raises different causes of action. (Mycogen,
supra, 28 Cal.4th at p. 896.) Under issue preclusion, the prior judgment
conclusively resolves an issue actually litigated and determined in the first action.
(Boeken, supra, 48 Cal.4th at p. 797.) There is a limit to the reach of issue
preclusion, however. In accordance with due process, it can be asserted only
against a party to the first lawsuit, or one in privity with a party. (Bernhard v.
Bank of America, supra, 19 Cal.2d at p. 812.)
Issue preclusion differs from claim preclusion in two ways. First, issue
preclusion does not bar entire causes of action. Instead, it prevents relitigation of
previously decided issues. Second, unlike claim preclusion, issue preclusion can
be raised by one who was not a party or privy in the first suit. (Vandenberg v.
Superior Court (1999) 21 Cal.4th 815, 828.) “Only the party against whom the
doctrine is invoked must be bound by the prior proceeding. [Citations.]” (Ibid.)
In summary, issue preclusion 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. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; Vandenberg, at
p. 828; Teitelbaum Furs, supra, 58 Cal.2d at p. 604.)
When the distinct requirements of issue and claim preclusion are
considered, resolution of this appeal is straightforward. After DKN secured a final
judgment on the merits against Caputo, the judgment remained unpaid, and DKN
sued Faerber and Neel. These defendants had been named but were never served
in the Caputo action. Faerber demurred. He urged that the claim against him was
barred because DKN had successfully sued Caputo on that same claim. This
argument led both courts below astray. After discussing the “primary rights”
theory (see, e.g., Boeken, supra, 48 Cal.4th at p. 797), the Court of Appeal
determined the present suit seeks redress for the same wrong as the Caputo action
and thus involves the same cause of action for purposes of claim preclusion. With
the “same cause of action” requirement satisfied, and with no dispute that the
Caputo action yielded a final judgment on the merits, the court held the present
suit was barred even though Faerber was not a party in Caputo.
The Court of Appeal‟s analysis was flawed. As discussed, claim preclusion
applies only to the relitigation of the same cause of action between the same
parties or those in privity with them. (Teitelbaum Furs, supra, 58 Cal.2d at
p. 604; Rice v. Crow (2000) 81 Cal.App.4th 725, 734.) Whether DKN‟s two
lawsuits involve the same primary right is beside the point. (See Rice, at p. 736.)
Claim preclusion does not bar DKN from suing Faerber because Faerber is not
“the same party” who defended the cause of action in the first suit, nor was he in
privity with Caputo based on their business partnership or cosigner status. (See
Dillard v. McKnight (1949) 34 Cal.2d 209, 214 [business partners are not in
privity for purposes of preclusion].)

This conclusion is entirely consistent with the settled rule that joint and
several obligors may be sued in separate actions. (See Williams II, supra, 48
Cal.2d at p. 66.) Claim preclusion does not bar subsequent suits against co-
obligors if they were not parties to the original litigation. In this context, a party
“is one who is „directly interested in the subject matter, and had a right to make
defense, or to control the proceeding, and to appeal from the judgment.‟ ”
(Bernhard v. Bank of America, supra, 19 Cal.2d at p. 811.) Faerber has never
contended that he and the other lessees should be considered the same party.
Nor does joint and several liability put co-obligors in privity with each
other. As applied to questions of preclusion, privity requires the sharing of “an
identity or community of interest,” with “adequate representation” of that interest
in the first suit, and circumstances such that the nonparty “should reasonably have
expected to be bound” by the first suit. (Clemmer v. Hartford Insurance Co.
(1978) 22 Cal.3d 865, 875.) A nonparty alleged to be in privity must have an
interest so similar to the party‟s interest that the party acted as the nonparty‟s
“ „ “virtual representative” ‟ ” in the first action. (Gottlieb v. Kest (2006) 141
Cal.App.4th 110, 150.) Joint and several liability alone does not create such a
closely aligned interest between co-obligors. The liability of each joint and
several obligor is separate and independent, not vicarious or derivative. (See id. at
p. 154, citing Tavery v. U.S. (10th Cir. 1990) 897 F.2d 1032, 1033.) Thus, joint
and several obligors are not considered to be in privity for purposes of issue or
claim preclusion. (Gottlieb, at p. 154.)9
The Court of Appeal recognized that Faerber was not a party in the Caputo
action. It erred, however, when it conflated claim preclusion, which requires

Questions about whether a relationship is sufficient to support privity
typically arise in the context of issue preclusion, to prevent a party from contesting
an issue that was decided against its alleged privy in a previous suit. (See, e.g.,
Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d at p. 875; Gottlieb v. Kest,
supra, 141 Cal.App.4th at p. 150.) We have encountered no other case in which a
party asserts claim preclusion based on a prior judgment against its alleged privy.

identity of parties, and issue preclusion, which does not. DKN explicitly argued
that “ „the defense of res judicata is available only when both the cause of action
and the parties are the same,‟ ” quoting 4 Witkin, California Procedure (5th ed.
2008) Pleading, section 65, page 124. The court rejected this passage from Witkin
as “an incorrect statement of the law” because it believed “only the party against
whom res judicata is invoked must have been a party to the prior action and bound
by the judgment in that action.” The court cited Arias v. Superior Court (2009) 46
Cal.4th 969, 985 for this proposition. The cited portion of Arias quotes this
language from Vandenberg v. Superior Court, supra, 21 Cal.4th at page 828. Both
Arias and Vandenberg were discussing the requirements of issue preclusion,
however, not claim preclusion. The difference is important.
Unlike claim preclusion, issue preclusion can be invoked by one not a party
to the first proceeding. The bar is asserted against a party who had a full and fair
opportunity to litigate the issue in the first case but lost. (See Parklane Hosiery
Co. v. Shore (1979) 439 U.S. 322, 327-329.) The point is that, once an issue has
been finally decided against such a party, that party should not be allowed to
relitigate the same issue in a new lawsuit. (Blonder-Tongue v. University
Foundation (1971) 402 U.S. 313, 324-325 (Blonder-Tongue); see Arias v.
Superior Court, supra, 46 Cal.4th at p. 985.) Issue preclusion operates “as a
shield against one who was a party to the prior action to prevent” that party from
relitigating an issue already settled in the previous case. (Rice v. Crow, supra, 81
Cal.App.4th at p. 735.)10

At common law, only one who was a party or in privity with a party in the
first action could assert the bar of issue or claim preclusion. (Bernhard v. Bank of
, supra, 19 Cal.2d at pp. 810-811.) The cases required “mutuality of
estoppel,” which meant that parties could only take advantage of an earlier
judgment if that judgment would have bound them, had it been decided differently.
(Id. at p. 811; see Parklane Hosiery Co. v. Shore, supra, 439 U.S. at p. 326.) In
the landmark case Bernhard v. Bank of America, we repudiated the mutuality rule
for issue preclusion and held that only the party against whom the binding effect
of the previous judgment was asserted had to be a party or privy in that prior

The present case does not involve these concerns. Faerber is asserting that
claim preclusion bars DKN‟s entire suit against him. It does not. Issue
preclusion, however, can indeed bind DKN to the resolution of issues decided in
the Caputo action. For example, Faerber may raise issue preclusion as a shield to
prevent relitigation of the rent due, or other losses caused by breach of the lease.
DKN has apparently had a full and fair opportunity to litigate the extent of those
damages. In separate actions against joint and several obligors, “adjudication of
the amount of the loss [in one action] . . . has the effect of establishing the limit of
the injured party‟s entitlement to redress, whoever the obligor may be. This is
because the determination of the amount of the loss resulting from actual litigation
of the issue of damages results in the injured person‟s being precluded from
relitigating the damages question.” (Rest.2d, Judgments, § 50, com. d, p. 43.) But
issue preclusion cannot be used to prohibit DKN from seeking redress from a
different obligor just because it has prevailed against a different party in the first
The cases Faerber relies on do not suggest otherwise. They involve
derivative liability, not joint and several liability. For example, in Lippert v.
Bailey (1966) 241 Cal.App.2d 376, the plaintiff was precluded from suing
insurance agents after he settled with the insurance company for the same loss.
Because these agents had no liability apart from that of their principal (id. at
p. 382), the defendants were in privity with the insurance company, and were thus
effectively the same parties for purposes of preclusion. When a defendant‟s
liability is entirely derivative from that of a party in an earlier action, claim
preclusion bars the second action because the second defendant stands in privity
with the earlier one. (See Richard B. LeVine, Inc. v. Higashi (2005) 131

proceeding. (Bernhard v. Bank of America, supra, 19 Cal.2d at pp. 812-813; see
Blonder-Tongue, supra, 402 U.S. at p. 324 [noting that Bernhard led many state
and federal courts to reject the mutuality requirement when parties sought to
relitigate issues they had previously lost].)

Cal.App.4th 566, 576-579; Brinton v. Bankers Pension Services, Inc. (1999) 76
Cal.App.4th 550, 557-558.) The nature of derivative liability so closely aligns the
separate defendants‟ interests that they are treated as identical parties. (Richard B.
LeVine, Inc., at p. 578.) Derivative liability supporting preclusion has been found
between a corporation and its employees (Sartor v. Superior Court (1982) 136
Cal.App.3d 322, 328; Lippert, at p. 382), a general contractor and subcontractors
(Thibodeau v. Crum (1992) 4 Cal.App.4th 749, 757), an association of securities
dealers and member agents (Brinton, at pp. 557-558), and among alleged
coconspirators (Richard B. LeVine, Inc., at p. 579).
None of these derivative liability cases involves joint and several liability.
No cited decision extends their holdings to parties jointly and severally liable on a
contract. The concepts of joint and several liability and derivative liability are not
coextensive. Each joint and several obligor is separately responsible for breach of
the contract; the basis of each one‟s liability is independent, although all have
contributed to the same loss. (Gottlieb v. Kest, supra, 141 Cal.App.4th at p. 154;
Tavery v. U.S., supra, 897 F.2d at p. 1033; cf. American Motorcycle Assn. v.
Superior Court (1978) 20 Cal.3d 578, 587 [explaining that joint and several
liability among concurrent tortfeasors does not rest on notions of vicarious
liability, but instead describes each tortfeasor‟s liability for injury caused by his
own negligence].) Faerber cites no case holding that joint and several liability
under a contract is a derivative liability. We will not extend the concepts of joint
and several liability and preclusion to that degree.
Finally, Faerber complains these long-settled rules confer an unfair
procedural advantage because plaintiffs may “divide and conquer,” suing each
obligor separately and preventing co-obligors from mounting a unified defense.
This concern is largely answered by the modern doctrine of issue preclusion. As
discussed, even when multiple suits are permissible, the plaintiff may not relitigate
issues decided against him in the first action, including issues related to damages.
(Rest.2d, Judgments, § 49, com. a, p. 35; see ante, at pp. 13-14.) Yet all defenses
remain available to a co-obligor in a later suit, including those rejected in the first
suit, because the co-obligor was not a party to the earlier proceeding and thus is
not bound by it. (See Hansberry v. Lee (1940) 311 U.S. 32, 40.) Moreover, the
rewards of a divide and conquer trial strategy are debatable. As a comment to the
Restatement Second of Judgments observes, “Even when not obliged to do so, the
claimant usually is under strong inducement to effectuate joinder of multiple
obligors because it reduces his litigating costs and may impel the defendants to
contribute to the proofs against each other.” (Rest.2d, Judgments, § 49, com. a,
p. 35.)
The decision of the Court of Appeal is reversed and the case remanded.
The matter shall be returned to the trial court with directions to set aside its order
sustaining the demurrer.




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

Name of Opinion DKN Holdings LLC v. Faerber

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 225 Cal.App.4th 1115
Rehearing Granted


Opinion No.

Date Filed: July 13, 2015


County: Riverside
Judge: John W. Vineyard



Prenovost, Normandin, Bergh & Dawe, Michael G. Dawe, Kristin F. Godeke and Paula M. Harrelson for
Plaintiff and Appellant.

Callahan & Blaine, Daniel J. Callahan, Edward Susolik, Michael S. LeBoff and Jill A. Thomas for
Defendant and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael G. Dawe
Prenovost, Normandin, Bergh & Dawe
2122 North Broadway, Suite 200
Santa Ana, CA 92706-2614
(714) 547-2444

Michael S. LeBoff
Callahan & Blaine
3 Hutton Centre Drive, Ninth Floor
Santa Ana, CA 92707
(714) 241-4444


Opinion Information
Date:Docket Number:
Mon, 07/13/2015S218597