Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of mandate. Christopher J. Warner, Judge. Super. Ct. No. SCVSS135581
Arias & Lockwood, Christopher D. Lockwood; Kinkle, Rodiger & Spriggs and Bruce E. Disenhouse for Petitioners.
No appearance for Respondent.
Law Offices of Wasserman & Miller and Arthur Wasserman for Real Party in Interest.
OPINION
McKINSTER, Acting P. J.
In this matter, we have reviewed the petition, the opposition filed by real party in interest, and the reply. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
In a previous nonpublished opinion by this court in this matter (case No. E041019), we held that the trial court’s finding of bad faith in the first action (case No. E036701) could not be applied against Graffam with collateral estoppel effect on the question of malice or bad faith in this action. (Attig v. Graffam et al. (Jun. 21, 2007, E041019) [nonpub. opn.]; Jocer Enterprises, Inc. v. Attig et al. (Nov. 10, 2005, E036701) [nonpub. opn.].) That opinion (case No. E041019) also contains language that the trial court here evidently felt authorized (or required), that the trial court’s ruling with respect to petitioner’s “bad faith” in the first action and our comments in the appeal in the first action (case No. E036701) with respect to the substantiality of the evidence supporting that “bad faith” finding, be admissible as evidence of “malice” in this action.
Our prior holding concerning the lack of preclusive effect of the trial court ruling in Attig v. Graffam (case No. E041019) is law of the case. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 459, p. 515.) Our other comments, however, were clearly dicta and thus have no such effect. (Millsap v. Balfour (1910) 158 Cal. 711, 714.) As the case now stands before us, we question the relevance of prior judicial findings—if they are not preclusive, are they not mere hearsay opinion?—but in any event we find that the prejudice far outweighs any probative value. (Evid. Code, § 352.)
The trial court’s comments here reflect that it understood that the jury would have to be carefully instructed on the related, but not identical, issues of “bad faith” and “malice.” However, we think it would be impossible to ensure that the jury did not give undue weight to the findings if they were informed that multiple judicial officers had found that Graffam acted in “bad faith.” As we explained in our first opinion in this case (case No. E041019), findings made after a motion hearing are generally not entitled to collateral estoppel effect because a motion is essentially an abbreviated procedure and in many cases the stakes are not high. But, if the jury is informed that Graffam has been found to have acted in “bad faith,” the risk that the jury will accept these findings in lieu of exercising their own judgment on the underlying facts is unacceptable.
DISPOSITION
Accordingly, the trial court erred in denying petitioner’s motion in limine on the point and we grant the petition.
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order denying petitioner’s motion to exclude evidence of 1) the finding of “bad faith” in Attig v. Graffam (case No. E041019), and 2) this court’s decision that “substantial evidence” supported that finding in case No. E036701, and to enter a new order granting the motion.
Nothing in this order precludes real party in interest from introducing evidence of petitioner’s conduct relating to the prosecution of Attig v. Graffam (case No. E041019).
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioner to recover his costs.
We concur: RICHLI, J., GAUT, J.