Schlosser v. Wollersheim

Schlosser v. Wollersheim

Filed 8/13/08 Schlosser v. Wollersheim CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

LETA SCHLOSSER, Cross-complainant and Appellant, v. LAWRENCE D. WOLLERSHEIM, Cross-defendant and Appellant.

B192191 (Los Angeles County Super. Ct. No. C332027) ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]

THE COURT:*

It is ordered that the opinion filed herein on July 16, 2008, be modified as follows:

1. On page 11, the first full paragraph, beginning To establish that claim preclusion is deleted in its entirety and the following paragraph is inserted in its place:

To establish that claim preclusion can bar affirmative defenses based on the dismissal of prior claims, Schlosser cites Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 819820 (Torrey Pines). It stated: Under traditional rules of res judicata, a party may be barred (collaterally estopped) from relitigating issues that were previously adjudicated in an earlier proceeding. [Citation.] (Id. at p. 821.) The court went on to hold that a voluntary dismissal with prejudice in an earlier judgment amounted to a determination on the merits under common law and barred affirmative defenses based on the same matter in a second action. (Id. at p. 822.)

2. On page 12, before the first full paragraph, a new paragraph is added:

We need not side with the majority or dissent in Torrey Pines. It is distinguishable because the case at bar does not involve a voluntary dismissal.

3. On page 12, the first full paragraph, beginning with Schlosser also cites is deleted in its entirety and the following paragraph is inserted in its place:

Schlosser also cites Alpha Mechanical, Heating & Air Conditioning v. Travelers Casualty & Surety Co.of America (2005) 133 Cal.App.4th 1319, 1330 (Alpha Mechanical) and Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1545 (Walsh) to support her argument. But for the argument at hand, these cases are empty vessels. Like Torrey Pines, Alpha Mechanical involved a voluntary dismissal. Walsh refused to apply claim preclusion or issue preclusion to bar a party from litigating an answer that contained a general denial but did not contain affirmative defenses.

4. On page 12, the second full paragraph, beginning with None of these cases apply is deleted in its entirety and the following paragraph is inserted in its place:

None of these cases support reversal.

5. On page 14, the second full paragraph, beginning with We reserve our final word is deleted in its entirety and the following paragraph is inserted in its place:

We reserve our final word for Schlossers contention that a retraxit is sufficient to collaterally estop affirmative defenses. A retraxit is simply an antiquated name for a voluntary dismissal with prejudice. (Torrey Pines, supra, 216 Cal.App.3d at p. 820.) Thus, because this case does not involve a voluntary dismissal with prejudice, retraxit law does not aid Schlossers cause.

There is no change in judgment.

Appellants petition for rehearing is denied.

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*BOREN, P. J. ASHMANN-GERST, J. CHAVEZ, J.