Opposition Brief — Aguilar v. County of Los Angeles

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Office-Supreme Court, US.

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MAY 8 1985

No. 84-1569

ALEXANDER L STEVAS,

TlEenK

In The

Supreme Court of the United States

October Term, 1984

fh).

BARDOMIANO AGUILAR and ROSA AGUILAR, hus-

band and wife, suing pursuant to C.C.P. § 376, and suing

individually,

Petitioners,

Vv.

COUNTY OF LOS ANGELES, etc., et al.,

Respondents.

ra’

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT —_=-

fy.

RESPONDENT'S BRIEF IN OPPOSITION

tf).

GOLMAN AND von BoL_scHWwING

Bowne, Jones, Brinces, MUELLER

& O’KEere

Grerves, Martin, Stern & RicHLanp

Martin STEIN

Counsel of Record

9601 Wilshire Boulevard, Suite 508

Beverly Hills, California 90210

(213) 859-7811

Attorneys for Respondent County of

Los Angeles

COCKLE LAW BRIEF PRENTING CO., (800) 835-7427 Ext. 333

QUESTION PRESENTED

In a medical malpractice action brought by the parents

of a minor child to recover for medical expenses and lost

services resulting from alleged prenatal injuries suffered

by the child, the following issue is presented:

Whether the District Court correctly exercised its

discretion in ordering Petitioners’ action dismissed,

pursuant to Rule 19, Federal Rules of Civil Procedure,

upon determining that Petitioners’ child was an indis-

pensable party whose joinder would defeat federal diver-

sity jurisdiction, and whether the Ninth Cireuit Court of

Appeals correctly affirmed the order of dismissal under

the circumstances?

TABLE OF CONTENTS

Pages

Introduction _ 1

Reasons For Denying The Writ:

I. The Ninth Cireuit Court of Appeals’ Holding

That Jaime Aguilar Had An Interest Relating

To The Subject Of The Action Which Might Be

Impaired By Virtue Of The California Doc-

trine Of Collateral Estoppel, Had He Not Been

Joined In The Federal Action, Comports With

The Letter And Spirit Of Rule 19(a), Federal

Rules Of Civil Procedure. 3

II. The Ninth Cireuit’s Holding That The District

Court Did Not Abuse Its Discretion In Ordering

Petitioners’ Federal Action Dismissed Was Be-

yond Question Correct Under The Equity And

Good Conscience Test Provided By Rule 19(b),

Federal Rules Of Civil Procedure. 14

A. All issues Presented In The Instant Action

Were Fully Capable Of Litigation In (In-

deed, Were More Properly Litigable In) A

State Forum. 16

B. Failure To Join Jaime Aguilar Would Have

Exposed Respondent To The Threat Of Mul-

tiple Litigation And The Risk Of Inconsist-

ent Relief. 17

C. The Absent Jaime Aguilar Had An Interest

Which Might Have Been Prejudiced If He

Was Not Joined In The Federal Proceeding. 18

D. The Interests Of The Courts And The Public

In Complete, Consistent And Efficient Set-

tlement Of Controversies Were Best Served

By Dismissal Of The Federal Action. W019

Conclusion ........ 22

rn |

lil

TABLE OF AUTHORITIES

Pages

CASES :

Armstrong v. Armstrong, 15 Cal.3d 942 (1976) .......... 7, 12, 13

Bakia v. County of Los ‘cach 687 F.2d 299 (9th

Cir. 1982) sida aideinly hs cas i tel ale alain ea 2

Bernhard v. Bank of America, 19 Cal.2d 807 (1942) — 6

Biaby v. Bixby, 50 F.R.D. 277 (S.D.TI1L. 1970). eee

Block v. Sun Owl Corporation, 335 F.Supp. 190 (W.D.

Okla. 1971) 17

Borer v. American Airlines, Inc., 19 Cal.3d 441

(1977) 8, 12, 13

Broussard v. Columbia Gulf Transmission Company,

ae ae eee toe Coe, TO) 21

Clenmer v. Hartford Insurance Co., 22 Cal.3d 865

(1978) 6,7

Cortez v. County of Los Angeles, 96 F.R.D. 427

(C.D. Cal. 1983) ) 11,13

Faitz v. Ruegg, 114 Cal.App.3d 967 (1981) 21

Fouke v. Schenewerk, 197 F.2d 234 (Sth Cir. 1952) ..... 20

Haas v. Jefferson National Bank of Miami Beach,

442 F.2d 394 (Sth Cir. 1971) 17, 20

Huddleston v. Dwyer, 322 U.S. 232, 88 L.Ed. 246

(TF rw seantyinsteaamepasrme nine ne eens eon ara monte at ere 2

Jamison v. Memphis Transit Management Company,

ee ee ee 17

Kaiser Foundation Hospitals v. Superior Court,

254 Cal.App.2d 327 (1967) 11, 12, 13

Lopez, et al. v. Martin Luther King, Jr. Hospital,

t al., 97 F.R.D. 24 (C.D.Cal. 1983)

4, 5, 10, 11, 13, 14, 18, 19

Potomac Electric Power Co. v. Babcock & Wilcox

Co., 54 F.R.D. 486 (D.Md. 1972) 16, 17, 18

TABLE OF AUTHORITIES—Continued

Prestenback v. Employers’ Ins. Co., 47 F.R.D. 163

Pe eS ee 15

Provident Trademens Bank & Trust Co. v. Patterson,

390 U.S. 102, 19 L.Ed.2d 936 (1968) 2, 3, 15, 18, 19, 20, 22

Ruddock v. Ohls, 91 Cal.App.3d 271 (1979) —..11, 12, 13

Schutten v. Shell Oil Company, 421 F.2d 869 (Sth

Cir. 1970) 17

Sea-Land Services v. Gaudet, 414 Us. 573, 39 L.Ed.

2d 9 (1974) 9, 12, 13

Secrest v. Pacific Electric Ry. Co., 60 Cal.App.2d

746 (1943) 9, 12, 13

Shields v. Barrow, 58 U.S. (17 How.) 1380, 15 L.Ed.

158 (1854) J, 4

Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.

en LD heir: 7

Todhunter v. Smith, 219 Cal. 690 (1934) IAG SIC 6

Walsh v. Centeio, 692 F.2d 1239 (9th Cir. 1982) 2

Wood v. Herson, 39 Cal. App.3d 737 (1974) cen 6

Zaragosa v. Craven, 33 Cal.2d 315 (1949) il

OTHER AUTHORITIES:

Code of Civ. Proce. § 376 21

Rule 19, Federal Rules Of Civil Procedure 2, 3, 6

Rule 19(a), Federal Rules Of Civil Procedure.............. 3, 4, 6,

14, 19

Rule 19(b), Federal Rules Of Civil Procedure ........... 3, 14, 15,

16, 17

ill calli

No. 84-1569

In The

Supreme Court of the United States

October Term, 1984

BARDOMIANO AGUILAR and ROSA AGUILAR, hus-

band and wife, suing pursuant to C.C.P. § 376, and suing

individually,

Petitioners,

COUNTY OF LOS ANGELES, etce., et al.,

Respondents.

ray

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Q-

RESPONDENT’S BRIEF IN OPPOSITION

4).

Respondent County of Los Angeles respectfully re-

quests that this Court deny the Petition for Writ of

Certiorari, seeking review of the Ninth Circuit’s opinion

in this case. That opinion is reported at 751 F.2d 1089.

INTRODUCTION

Petitioners have failed to identify any cogent reasons

why their Petition for Writ of Certiorari (‘‘Petition’’)

should be granted by this Court. Indeed, there are none.

The Ninth Cireuit Court of Appeals’ decision is wholly

consistent with the principles articulated by this Court in

Provident Trademens Pank & Trust Co. v. Patterson,

390 U.S. 102, 19 L.Ed.2d 936 (1968) and the Ninth Cir-

cuit’s own decisions in cases such as Bakia v. County of

Los Angeles, 687 F.2d 299 (9th Cir. 1982) and Walsh v.

Centeio, 692 F.2d 1239 (9th Cir. 1982), with respect to the

proper application of Rule 19, Federal Rules of Civil

Procedure.

The Ninth Cireuit was required to and did correctly

determine the applicable California state law regarding

the principles of collateral estoppel which formed the

predicate for both the District Court’s and its own deter-

mination that dismissal of Petitioners’ federal action was

mandated because of a missing indispensable party, Peti-

tioners’ son, Jaime Aguilar, who could not be joined with-

out defcating the District Court’s diversity jurisdiction.

In arguing otherwise, Petitioners request that this Court

exercise its discretionary jurisdiction without considera-

tion of an important governing criteria. As stated by this

Court in Huddleston v. Dwyer, 322 U.S. 232, 237, 88 L.Ed.

246 (12/4), “ordinarily we accept and therefore do not

review, save in exceptional cases, the considered deter-

mination of questions of state law by the federal appellate

courts.’’ Since no exceptional circumstances are shown in

the instant case and for other reasons to be examined in

detail below, the Petition should be denied.

REASONS FOR DENYING THE WRIT

The Ninth Circuit Court of Appeals’ Holding

That Jaime Aguilar Had An Interest Relating To

The Subject Of The Action Which Might Be Im-

paired By Virtue Of The California Doctrine Of

Collateral Estoppel, Had He Not Been Joined In

The Federal Action, Comports With The Letter

And Spirit Of Rule 19(a), Federal Rules Of Civil

Procedure.

In this Court’s landmark decision of Shields v. Bar-

row, 98 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1854), in-

dispensable parties were defined as

‘‘[p]ersons who not only have an interest in the con-

troversy, but an interest of such a nature that a final

decree cannot be made without either affecting that

interest, or leaving the controversy in such a condi-

tion that its final termination may be wholly incon-

sistent with equity and good conscience.’”!

Rule 19(a) defines the persons who are needed for

a just adjudication of an action as follows:

“A person ... whose joinder will not deprive the

court of jurisdiction over the subject matter of the

action shall be joined as a party in the action if (1) in

his absence complete relief cannot be accorded among

i As Mr. Justice Harlan more recently declared in Provident

Trademens Bank & Trust Co. v. Patterson, supra, 390 U.S.

102, 124, 19 L.Ed.2d 936, the generalizations of Shields “are

still valid today, and they are consistent with the requirements

of Rule 19... . Indeed, the . . . Shields definition states, in

rather different fashion, the criteria for decision announced in

Rule 19(b).””

those already parties, or (2) he claims an interest

relating to the subject of the action and is so situated

that the disposition of the action may (i) as a prac-

tical matter impair or impede his ability to protect

that interest or (ii) leave any of the persons already

parties subject to a substantial risk of incurring

double, multiple, or otherwise inconsistent obligations

by reason of his claimed interest... .”

As recently explained by the Court in Lopez, et al.

v. Martin Luther King, Jr. Hospital, et al., 97 F.R.D. 24

(C.D.Cal. 1983), at p.28, a decision heavily relied on by

both the Ninth Cireuit and the District Court:

‘Rule 19 provides an aralytical framework for

the Court in considering the necessity of joinder, and

is subdivided into two parts. Subdivision (a) defines

those persons who should be joined if at all feasible.

If joinder is not feasible, then subdivision (b) is ap-

plied to resolve the question of whether the action

should proceed without that party. This is a two-

step analysis—the issues involved im the subdivision

(b) determination are not reached until the Court

determines first whether non-joinder would, under

(a)(1) prevent the Court from according complete

relief to the parties present, or under (a)(2), impair

the absentee’s interest or prejudice the persons al-

ready parties by subjecting them to a risk of double

or inconsistent obligations. Bakia v. County of Los

Angeles, 687 F.2d 299, 301 (9th Cir. 1982).”

Whether tested by the principles articulated in Shields

or the criteria set forth in Rule 19(a), the Ninth Circuit

and the District Court correctly determined that Jaime

Aguilar was a person who should have been joined since

(a) he had an interest relating to the subject of this ac-

tion; and (b) disposition of the action in his absence may,

as a practical matter, have impeded or impaired his abil-

ity to protect his interest.

eee

Petitioners’ contention that their child had no such

impairable interest (Pet., pp. 22-29) should be rejected for

the reasons expressed by the Court in Lopez, et al. v. Mar-

tin Luther King, Jr. Hospital, supra, 9i F.R.D. at pp. 29-30:

“Plaintiffs construe the ‘interest’ permitted un-

der rule 19(a)(2) much too narrowly. The Court

recognizes that the alleged interest must be some-

thing more than a financial interest or an interest

of convenience. However, the Rule does not require

a ‘legal’ interest; it merely requires ‘an interest re-

lating to the subject of the action.’ Whether this in-

terest exists must be determined from a _ practical

perspective, not through the adoption of strict legal

definitions and technicalities. To be sure, the parents’

and the child’s substantive legal rights differ. How-

ever, ‘the concept of substantive severability is no

longer the guiding star of the joinder problem.’ . . .

Instead, the Court must consider all the relevant

circumstances in classifying the interest at stake.

‘‘Plaintiffs’ construction of the interest require-

ment in this case ignores the practical consequences

to the child if the judgment in the federal action is

adverse to the parents. Plaintiffs assert that since

the child has no legal interest in this litigation, there

is no danger that any issues resolved herein will be

decided for purposes of the child’s state court action.

This analysis places the cart before the horse. The

relevant inquiry is, if there is a possibility that col-

lateral estoppel will be applied by the California

court, then it is axiomatic that the child has an in-

terest in this action... .’’

As recognized by the Court in Lopez, supra, and the

Ninth Circuit here, Jaime Aguilar’s absence from the in-

stant action subjected him to potential prejudice if the

concept of collateral estoppel were applied to defeat his

claim in state court.

The doctrine of collateral estoppel is a component of

the doctrine of res judicata. Todhunter v. Smith, 219

Cal. 690, 695 (1934), explains:

“The doctrine of res judicata has a double aspect. A

former judgment operates as a bar against a second

action upon the same cause, but in a later action upon

a different claim or cause of action, it operates as an

estoppel or conclusive adjudication as to such issues

in the second action as were actually litigated and

determined in the first action.’”’ (Emphasis in origi-

nal.)?

Collateral estoppel may properly be invoked when it

appears in a later proceeding that there was a former

proceeding in which the identical issues were raised and

decided, that there was a final judgment on the merits in

the first proceeding, and that the party against whom the

plea of collateral estoppel is asserted was a party, or in

vrivity with a party, to the prior adjudication. Clemmer

v. Hartford Insurance Co., 22 Cal.3d 865, 874 (1978);

Bernhard v. Bank of America, 19 Cal.2d 807, 813 (1942).

Since identical issues of fact and law were presented

in both the federal and state actions and since a final

judgment might eventually have been entered in this ac-

tion had the District Court permittted the present parties

to continue with the lawsuit, the doctrine of collateral

estoppel would unquestionably have applied to any judg-

ment entered in this action if it could be said tuat the

2 The doctrine of collateral estoppel serves important pub-

lic policies pertinent to the application of Rule 19. “It seeks

to curtail multiple oo causing vexation and expense to

the parties and wasted effort and expense in judicial adminis-

tration.” Wood v. Herson, 39 Cal.App.3d 737, 745 (1974);

original emphasis.

Petitioner parents herein and their minor son were in

privity. The law in California could clearly so provide,

as we now explain.

In its traditional sense, privity denotes a mutual or

successive relationship to the same rights of property or

such an identification in interest of one person with an-

other as to represent the same legal rights. Clemmer v.

Hartford Insurance Co., supra, 22 Cal.3d 865, 876; Teitel-

baum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 604

(1962). Here, in suing for the personal injuries sustained

by their child, Petitioners necessarily represented their

own and their child’s mutual interests—financial, familial

and otherwise. That this is so is strongly suggested by

the following decisions.

1. In Armstrong v. Armstrong, 15 Cal.3d 942 (1976),

the California Supreme Court held that children were col-

laterally estopped to relitigate issues settled in a suit

involving their mother. In that case, two children sued

their father for past child support and misappropriation

of their trust assets; they complained of a property settle-

ment agreement, executed by their parents and incorpo-

rated into an interlocutory decree of divorce, which pro-

vided for child support of $125 per month, to be offset

by payments made to the children from a trust previously

established for them by a grandparent.

Agreeing it was improper for the father to reduce

his support obligation by resorting to the children’s trust

fund, the Supreme Court nevertheless denied the chil-

dren’s right to collaterally attack the judgment. Holding

that the children were bound by the divorce judgment, the

Court stated (at pp. 951-952):

‘‘The doctrinal reach of the res judicata bar extends

. . . to those persons ‘in privity with’ parties [cita-

tion]. As has been said, in considcring application

of the doctrine, courts examine the practicalities of

the situation and attempt to determine whether plain-

tiffs are ‘sufficiently close to the original case to

afford application of the principle of preclusion’ [ci-

tation]. We have previously held that privity exists

where the person involved is .. . ‘so identified in

interest with another that he represents the same

legal right.’ [Citations.] In the present case, plain-

tiffs’ mother was entrusted with their care and cus-

tody and was a proper representative of their in-

terests. ... For this reason, we conclude that plain-

tiffs are bound by the judgment in the divorce action

to which their mother was a party.”’

2. In Borer v. American Airlines, Inc., 19 Cai.3d 441

(1977), the California Supreme Court established that, in

suing for medical expenses and lost services resulting

from injury to their minor offspring, the parents effec-

tively acted as a representative of their child. The Cali-

fornia Supreme Court explained (id. at 452):

“While the parent lives, however, the tangible aspects

of the child’s loss can be compensated in the parent’s

own cause of action. As put by Stainback, J., in

Halberg v. Young, supra, 41 Hawaii 634, 640... ,

‘where a parent has been injured by the negligent

act of another the parent will recover from the other

full damage which he has sustained, including such

inability, if any, to properly care for his children, and

thus the parent’s ability to carry out his duty to sup-

port and maintain the child has not, in a legal sense,

been destroyed or impaired by the injury to him.’

(Suter v. Leonard, supra, 45 Cal.App.3d 744, 748.)”

3. The identity of interests (i.e., privity) between an

injured plaintiff-spouse-parent and his or her heirs was

authoritatively established by this Court in Sea-Land

Services v. Gaudet, 414 U.S. 573, 39 L.Ed.2d 9 (1974).

There, plaintiff’s husband won a personal injury action,

collected on his judgment and then died. Plaintiff then

brought a wrongful death action. While this Court held

the former recovery did not bar suit by decedent’s wife,

the doctrine of collateral estoppel was applied to preclude

relitigation of those matters previously decided: “[N]on-

parties may be collaterally estopped from relitigating is-

sues necessarily decided in a suit brought by a party who

acts as a fiduciary representative for the beneficial inter-

est of the nonparties.” 414 U.S. at p. 595; fn. omitted.

And “when a decedent brings his own personal-injury ac-

tion during his lifetime and recovers damages for his lost

wages he acts in a fiduciary capacity to the extent that

he represents his dependents’ interests in that portion of

his prospective earnings which, but for his wrongful death,

they had a reasonable expectation of his providing for

their support.” 414 U.S. at p. 594; fn. omitted.

With respect to the identical liability issue to be tried

in the second lawsuit, this Court observed (id. at pp. 594-

595) :

“Since the decedent’s recovery of any future wages

will normally be dependent upon his fully litigating

that issue, we need not fear that applying principles

of collateral estoppel to preclude decedent’s depend-

ents’ claim for a portion of those future wages will

deprive the dependents of their day in court.”

4. Secrest v. Pacific Electric Ry. Co., 60 Cal.App.2d

746 (1943), first established the California rule. In a com-

prehensive exposition of the governing law, the Court ex-

plained (at p. 750):

“‘Tf a judgment in favor of the injured party

would have the effect of barring the cause of action

for wrongful death, it seems obvious that a judgment

adverse to him would a fortiori have the same effect.

999

After discussing the pertinent policy considerations,

the Court adopted the view, represented by the weight of

authority, that collateral estoppel would apply, holding

as follows (at p. 751):

“TW hen the identical issues joined by the plead-

ings in the action for wrongfui death were determined

adversely to plaintiffs in the prior personal injury

action ... the defense of estoppel by judgment must

be sustained. Because, the decision of the court in

the prior action ‘negatives the existence of conditions

which would charge the defendant with responsibility

for the death.’ ”

The reason the Court adopted this rule was as fol-

lows (at p. 750) :

“e. . such a judgment, if rendered on the issues

raised in the death action, strikes at the very founda-

tion of the cause of action, since it negatives the ex-

istence of conditions which would charge the defend-

ant with responsibility for the death.” (Court’s

emphasis. )

5. Finally, based on decisions such as those discussed

above, the Court in Lopez, et al. v. Martin Luther King,

Jr. Hospital, supra, 97 F.R.D. 24, expressly determined

that the California doctrine of collateral estoppel might

indeed preclude the minor child from relitigating the issue

of a defendant’s negligence in the state court action. In

terms dispositive of the issue presented here, the Court

stated:

“In light of the expanded application of privity

for purposes of collateral estoppel, it is clear that the

child might be barred from relitigating the issue of

defendants’ negligence in the state court action. Cer-

tainly the child is ‘sufficiently close’ to the present

proceeding to justify application of the doctrine. The

same attorney is litigating both actions. The mother,

a party to this action, is the child’s guardian ad litem

in the state court action. Plaintiffs’ claim that the

liability issues in the two cases differ is not well

founded. For successful recoveries, both actions re-

quire the proof of defendants’ negligence in connec-

tion with the perinatal care of the child....” Lopez,

97 F.R.D. at p. 31.

In response to these highly persuasive (indeed con-

trolling) cases, Petitioners primarily rely on inapplicable

decisions of other jurisdictions whose law is not control-

ling here. (Pet., pp. 28-29.) The only California deci-

sions cited by Petitioners (i.e., Kaiser Foundation Hos-

pitals v. Superior Court, 254 Cal.App.2d 327 (1967); Rud-

dock v. Ohls, 91 Cal.App.3d 271 (1979); and Cortez v.

County of Los Angeles, 96 F.R.D. 427 (C.D.Cal. 1983) )

furnish them no support, as we uow explain.

The Kaiser case held that a decedent’s child is not

collaterally estopped by a judgment adverse to the de-

cedent because the child’s cause of action for wrongful

death is a separate cause of action, not derivative from

the decedent’s cause of action. The holding in Kaiser is

wrong and was properly rejected by both the District

Court and the Ninth Circuit for at least three reasons:

(a) Kaiser is directly contrary to the California

Supreme Court decision in Zaragosa v. Craven, 33 Cal.2d

315 (1949), which it fails to cite. In Zaragosa, the Court

categorically rejected the rationale employed by Kaiser,

holding that even separate and independent causes of

action are subject to a collateral estoppel defense. On

this point, the Court categorically stated (id. at 321):

“The fact that the cause of action for injuries to the

wife is different from the cause of action for injuries

to the husband is here immaterial.”

(b) Katser is also contrary to the principles enunci-

ated in Armstrong, Borer and Sea-Land.

(ec) Finally, Katser was properly rejected because

it utterly fails to distinguish Secrest.’ Specifically, Kaiser’s

only reference to Secrest is in a footnote stating that

Secrest “is distinguishable ... on the facts.” J¢d>-at- 334

fn. 2. However, Secrest cannot be dealt with so simply

and it is no wonder that three justices of the California

Supreme Court voted to grant a hearing in Kaiser.

Petitioners’ reliance on the Court of Appeal decision

Ruddock v. Oils, supra, 91 Cal.App.38d 271, is also mis-

placed because it is distinguishable on public policy

grounds. In Ruddock, the Court held that, in the absence

of joinder, the right of a minor child to establish the

parent-child relationship was not foreclosed under the

doctrines of res judicata or collateral estoppel by a prior

judgment between the mother and alleged father in a

marital dissolution action. The Court noted that, in ‘‘con-

trast to enforcement of a child’s right of a present or

past support obligation, the establishinent of the parent-

child relationship is the most fundamental right a child

4 It will be recalled that the theoretical basis for Kaiser was

squarely rejected in Secrest, supra, 60 Cal.App.2d at 751:

“(When the identical issues joined by the pleadings in the

action for wrongful death were determined adversely to plain-

tiffs in the prior personal injury action, . . . the defense of

estoppel by judgment must be sustained.” .

possesses to be equated in importance with personal lib-

erty and the most basic of constitutional rights.” Jd. at

277-278; emphasis added. Evidencing concern that these

fundamental rights of the minor might be jeopardized by

broad application of the bar of collateral estoppel, the

Court concluded the doctrine was inapplicable because

the minor’s interests might not have been properly pro-

tected by the mother in the prior litigation, i.e., the Court

held that, where paternity rights are concerned, a parent

is not necessarily in ‘‘privity” with his or her child. Jd.

at 278.

In contrast to Ruddock, Petitioners cannot establish

that a personal-injury cause of action equates to a funda-

mental right, nor have they shown the existence of any

public policy consideration which might have caused the

California courts to refuse to apply the doctrine of col-

lateral estoppel to the child’s action, had the instant fed-

eral action been decided adversely to Petitioners’ inter-

ests. Nor have Petitioners referred to a single fact sug-

gesting that the minor’s interests would not have been

fully and forcefully represented in the federal action.

The Court in Cortez, relying substantially on both

Kaiser and Ruddock, held that a minor could not be col-

laterally estopped by his parents’ litigation of a cause

of action brought pursuant to California Code of Civil

Procedure section 376. But, as we have shown those de-

cisions are not in conformity with controlling California

authority. Thus, for a similar reason, Cortez was prop-

erly rejected by the Ninth Cireuit and should be rejected

by this Court also.

In light of such compelling decisions such as Arm-

strong, Borer, Sea-Land, Secrest and Lopez, there was, at

the very least, a clear potential that, should this lawsuit

have proceeded in the absence of Jaime Aguilar and an

adverse judgment entered against his Petitioner parents,

prejudice to his interests in the state litigation would

likely have resulted. The point is that, in pursuing this

federal action, Petitioners, in effect, represented the

minor’s interest in attempting to establish Respondent’s

liability; therefore, any adjudication of liability may well

have been binding on the minor in his state court action

and, thus, his action could potentially have been effec-

tively barred.4 Thus, the Ninth Circuit’s determination

of the issue was clearly correct and should not be dis-

turbed by this Court.

IT.

The Ninth Circuit’s Holding That The District

Court Did Not Abuse Its Discretion In Ordering

Petitioner’s Federal Action Dismissed Was Be-

yond Question Correct Under The Equity And

Good Conscience Test Provided By Rule 19(b),

Federal Rules of Civil Procedure.

Having determined that joinder of Jaime Aguilar

was desirable under the criteria articulated in Rule 19(a)

4 In determining whether a person should be joined under

Rule 19(a), it is not necessary that the District Court determine

to a certainty that disposition of the federal action will impair

or impede the person’s ability to protect his interests. Instead,

all that is necessary is that it be determined that “ . . . disposi-

tior. of the action may ... as a practical matter impair or im-

pede his ability to protect that interest... .’’ Rule 19(a) (2) (i),

Federal Rules of Civil Procedure; emphasis added. As ob-

served by the Court in Lopez, supra, 97 F.R.D. at p. 31, “The

existing potential that the child will be estopped from reliti-

gating important issues critical to his action in the state court

satisfies the impairment requirement.”

(2), the District Court was required to order joinder un-

less joinder would have deprived it of subject matter jur-

isdiction. Since, here, joinder would have defeated the

District Court’s subject matter jurisdiction, it was re-

quired to apply the equity and good conscience test of

Rule 19(b) to determine whether the action could pro-

ceed in the absence of the minor or whether dismissal

should be ordered. Prestenback v. Employers’ Ins. Co.,

47 F.R.D. 163, 165-166 (D.C.La.1969).

Rule 19(b) required the District Court to balance

equitable considerations in determining if the action could

fairly proceed without the joinder of the absent person

alleged to be an indispensable party. As explained by Mr.

Justice Harlan in Provident Trademens Bank & Trust

Co. v. Patterson, supra, 390 U.S. 102, 109-111; 19 L.Ed.2d

936, Rule 19(b) suggests four interests that must be ex-

amined in each case:

‘‘Wirst, the Plaintiffs have an interest in having a

forum. Before the trial, the strength of this interest

obviously depends upon whether a satisfactory alter-

native forum exists . . . Second, the defendant may

properly wish to avoid multiple litigation, or incon-

sistent relief, or sole responsibility for a liability he

shares with another. ... [§] Third, there is the in-

terest of the outsider whom it would have been de-

sirable to join... .[f] Fourth, there remains the

interest of the courts and the public in complete, con-

sistent, and efficient settlement of controversies.”

Analysis of these four factors, as applicable in the

context of this case, provides overwhelming support for

the Ninth Circuit’s and the District Court’s determina-

tions that this action could not properly proceed absent

the joinder of Jaime Aguilar.

A. All Issues Presented In The Instant Action

Were Fully Capable Of Litigation In (Indeed,

Were More Properly Litigable In) A State

Forum.

The issues presented to the District Court in this

medical malpractice action were fully litigable in a state

forum, particularly in that action still pending in the Los

Angeles Superior Court, No. C 462798, as Jaime Aguilar

v. County of Los Angeles, etc., et al. The issues in that

action, with the exception of the type of damages sought,

are identical to those in the instant case: Both actions

involve the alleged malpractice committed on Jaime Agui-

lar; one of the named plaintiffs is the same in both pro-

ceedings, i.e., Rosa Aguilar suing in an individual ¢a-

pacity in District Court and in a representative capacity

in the state proceeding; and the County of Los Angeles

and its employees were named as defendants in both mat-

ters.

The availability of a state forum has been properly

a decisive factor in eases where dismissal was ordered

pursuant to Rule 19(b). In Potomac Electric Power Co.

v. Babcock & Wilcox Co., 54 F.R.D. 486, 491 (D.Md. 1972),

the Court observed:

‘Of all the pragmatic considerations to be weighed

by this Court, the one that stands out most strikingly

in this case is the fact that the plaintiffs have avail-

able to them, and in fact have already filed suit in

another forum. If the motions to dismiss are granted

because of a lack of complete diversity of citizenship,

plaintiffs are not left without a remedy. They may

in such event proceed with the suit that has been

brought in the Cireuit Court for Baltimore County

aud which presents the same claims against the same

defendants. .. .”

See also Haas v. Jefferson National Bank of Miami Beach,

442 F.2d 394, 399-400 (5th Cir. 1971) [same as Potomac];

Schutten v. Shell Oil Company, 421 F.2d 869, 875 (5th

Cir. 1970) [same]; Jamison v. Memphis Transit Manage-

ment Company, 381 F.2d 670, 676 (6th Cir. 1967) [same].

By pursuing their remedy in a state forum, Petition-

ers will be able to join all interested parties without suf-

fering an iota of prejudice. Block v. Sun Oil Corporation,

335 F.Supp. 190, lyo (W.D. Okla. 1971); Bixby v. Bixby,

50 F.R.D. 277, 281 (S.D.Ill. 1970). Accordingly, the Ninth

Circuit correctly held that the District Court did not err

in dismissing the federal action.

B. Failure To Join Jaime Aguilar Would Have

Exposed Respondent To The Threat Of Mul-

tiple Litigation And The Risk Of Inconsist-

ent Relief.

To the extent it might ultimately have been held that

a determination in Respondent’s favor in the federal ac-

tion was not binding on the minor, Respondent might have

been forced to relitigate the same issue of liability in the

state forum, notwithstanding a victory in federal court.

See Block v. Sun Oil Corporation, supra, 335 F.Supp. 190,

196 [‘‘A multiplicity of litigation may result and, thus,

the efforts of more than one court may be devoted to what

at present appears to be a single controversy’’]. Under

these circumstances, it would also be possible that even

if Respondent obtained a favorable judgment in the

present action, it could still suffer an adverse judgirent

in the pending state court action. The potential inequity

of such inconsistent adjudications was properly avoided

by the District Court’s order. In Potomac Electric Power

Co. v. Babcock & Wilcox Co., supra, 54 F.R.D. 486, 492,

the Court noted:

‘‘(T here is at the present time a risk that the in-

surers could re-litigate the issues presented here, or

at a very minimum, require the defendants to come

iuto another court and prove that principles of res

judicata or collateral estoppel did apply in any sub-

sequent action. If the action were to proceed with

all parties named as plaintiffs, this possibility would

be effectively removed. Therefore, the first factor

in [Rule 19] subdivision (b) also indicates that Royal

[insurance company] should be regarded as indispen-

sable here, and that the action should be dismissed.”

(Emphasis in original.)