Kemper v. County of San Diego
242 Cal. App. 4th 1075
| Cal. Ct. App. | 2015Background
- In 2008, 16‑year‑old Johnneisha Kemper's newborn (NF) was detained and a dependency petition (§ 300(g)) was sustained; the juvenile court removed NF from parental custody.
- Appointed counsel (De Soto, Kisiel) represented Kemper in the dependency proceedings; reunification services were later terminated and a section 366.26 parental‑termination judgment was entered.
- On appeal (In re N.F.), Kemper argued ineffective assistance of appointed counsel and challenged section 388 denials; the Court of Appeal affirmed, concluding any alleged counsel deficiencies did not cause termination.
- Kemper then sued her former appointed attorneys and their supervisor for legal malpractice, alleging breaches of the standard of care that caused loss of parental rights and seeking money damages (not reversal).
- Defendants moved for summary judgment based on collateral estoppel; the trial court granted judgment for defendants, finding the causation issue was already decided in N.F. and barred relitigation.
- Kemper appealed; the Court of Appeal affirmed, rejecting her request for a habeas‑analog exception to collateral estoppel and finding public‑policy and finality reasons to bar relitigation in a malpractice suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether collateral estoppel bars Kemper's malpractice suit from relitigating whether counsel's alleged incompetence caused termination | Kemper: N.F. appellate review was limited to the record; she lacked a full and fair chance to present extra‑record evidence (as in habeas) so collateral estoppel should not apply | Defendants: N.F. necessarily decided causation (no prejudice) and Kemper is bound by that final adjudication | Held: Collateral estoppel applies; causation was actually litigated and decided in N.F., so malpractice action is barred on that issue |
| Whether extra‑record evidence or new legal theories in malpractice suit overcome issue preclusion | Kemper: New evidence and theories (expert opinions, declarations) were unavailable/unused on appeal and could change causation | Defendants: New evidence does not avoid collateral estoppel once issue was litigated and decided | Held: New evidence or theories do not defeat collateral estoppel here; the record and later §388 proceedings already encompassed available facts |
| Whether an exception to collateral estoppel should be created by analogy to juvenile habeas practice (allowing extra‑record proof) | Kemper: Because habeas in dependency cases permits extra‑record evidence, malpractice plaintiffs should similarly be allowed to relitigate causation in civil court | Defendants: Habeas serves different remedial and child‑welfare aims; malpractice suits produce inconsistent, post‑termination outcomes and undermine finality | Held: No exception; habeas serves distinct purposes and timing safeguards for children; permitting malpractice relitigation risks inconsistent judgments and harms finality and child welfare |
| Whether trial court's evidentiary rulings / alleged judicial estoppel precluded summary judgment | Kemper: Trial court improperly sustained/overruled blanket objections and defendants' prior statements at oral argument estop collateral estoppel defense | Defendants: Documentary prior record was admissible; appellate counsel remarks do not bind all defendants | Held: Any evidentiary errors were not prejudicial; statements at oral argument do not bar defendants from asserting collateral estoppel |
Key Cases Cited
- DKN Holdings LLC v. Faerber, 61 Cal.4th 813 (issue preclusion elements and scope)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (summary judgment standards)
- Viner v. Sweet, 30 Cal.4th 1232 (but‑for proximate causation in malpractice)
- Coscia v. McKenna & Cuneo, 25 Cal.4th 1194 (requirement of postconviction exoneration/avoidance of inconsistent verdicts in malpractice suits)
- In re Marilyn H., 5 Cal.4th 295 (juvenile § 388 and dependency finality/child welfare considerations)
- People v. Mendoza Tello, 15 Cal.4th 264 (habeas vs. direct appeal and availability of extra‑record evidence)