*86 Opinion
The trial court granted respondent’s motion for summary judgment and dismissed appellant’s action for personal injuries caused by asbestos exposure. The court determined that appellant is bound by findings in prior superior court cases that respondent cannot be found liable to appellant as a successor entity to Amot Marine Corporation. We conclude that the doctrine of collateral estoppel cannot be applied to appellant, and therefore remand the case to the trial court for determination of the successor liability issue on the merits.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Appellant filed the present personal injury action against respondent and other named defendants on December 5, 2000. The complaint alleged that during the course of appellant’s employment duties he was exposed to “asbestos and asbestos-containing products,” which caused him to develop asbestosis and other lung damage. Respondent Sargent Controls & Aerospace (respondent or Sargent) was alleged to be liable to appellant as a successor in interest to other corporate entities: Sargent Industries, Inc., Kahr Bearing Corporation (Kahr), Aetna Steel Products Corporation (Aetna), and Amot Marine Corporation (Amot).
Following discovery, respondent moved for summary judgment on the ground, among others, that it was not a successor in interest or alter ego of Amot, which was the entity alleged to be one of the sources of appellant’s asbestos exposure. 1 Respondent pointed out in support of the summary judgment motion that “in two separate actions in the San Francisco Superior Court” brought by other plaintiffs represented by appellant’s counsel, Vasen v. Alta Building Materials (Super. Ct. S.F. City & County, No. 312211) (Vasen), and Pena v. Asbestos Defendants (Super. Ct. S.F. City & County, No. 303548) (Pena), the issue of corporate succession and assumption of liability was adjudicated and resolved in its favor following evidentiary hearings. 2 Respondent claimed that under collateral estoppel principles appellant was barred from relitigating the issue of successor liability, and a complete defense to the action was established. In addition, respondent claimed that under the evidence presented Sargent did not acquire Amot or its liabilities, and therefore *87 incurred no liability as a successor corporation. In opposition to the motion appellant argued that respondent failed to establish the requisite identity of the parties to invoke the collateral estoppel doctrine.
The evidence pertinent to the summary judgment motion indicated that in 1961 appellant began his employment with Lorentzen & Co. as an “apprentice” in the field of insulation work in the Bethlehem Shipyard in San Francisco. Appellant’s employment duties consisted of mixing and delivering insulation products used in the construction of two President Line ships, and “then performing cleanup.” In the course of his duties appellant regularly operated in close proximity to “joiner workers” employed by Amot, who cut and installed “Marinite panels” in the ships that contained asbestos fiber. Amot was engaged in the performance of joiner work at shipyards.
In 1961, the net assets of Amot, a division of Aetna, and the capital stock of its subsidiary corporation Marine Development, Inc., were purchased by Kahr in exchange for unissued common stock. Kahr was a company engaged in the manufacture and sale of bearings for the aircraft industry, but the acquisition included Amot marine division. Thereafter, Amot operated as a division of Kahr. Amot ceased business operations in 1967, but did not dissolve as a corporate entity.
In February of 1969, respondent’s predecessor, Sargent Industries, Inc., purchased 488,933 of the common outstanding shares of Kahr from a company known as GAC Corporation. Pursuant to the stock purchase agreement GAC promised to indemnify Sargent against all claims arising from “the marine division of the Corporation (which discontinued operations in 1967) whether or not disclosed.” In the agreement GAC also warranted that Kahr did not have any liabilities as of December 31, 1968, save a claim listed for a debt in the amount of $38,144.29 owed by Amot to a company engaged in a bankruptcy proceeding. The agreement also noted a creditor’s claim filed by Amot in the same bankruptcy proceeding. 3 Appellant did not dispute that Sargent assumed no tort liabilities from Kahr under the stock purchase agreement.
In December of 1973, the board of directors of Sargent merged Kahr into Sargent, and resolved to purchase the outstanding shares of Kahr not yet held by the parent company—then less than 10 percent. Kahr was thereafter treated as a division of Sargent.
The trial court found that following the rulings in the Vasen and Pena cases appellant is collaterally estopped in the present action from claiming that *88 “Sargent is the corporate successor” of Amot. Based upon the lack of any successor liability, respondent’s motion for summary judgment was granted, and judgment in favor of respondent was entered. This appeal followed.
DISCUSSION
Appellant challenges the trial court’s ruling that he is precluded under collateral estoppel principles from litigating the merits of the issue of respondent’s liability to him as a successor corporation of Amot. Appellant focuses upon the lack of identity of parties in the prior and current actions to argue that the requirements of collateral estoppel were not met by respondent. He recognizes that the collateral estoppel doctrine had been extended to those “in privity” with parties to a prior action, but maintains that his only connection with the cases in which lack of successor liability was found— that he is represented by the “same counsel” as the “otherwise unrelated parties”—does not suffice to foreclose him from litigating an issue previously resolved in favor of respondent. Appellant therefore claims that “the doctrine of collateral estoppel was improperly applied by the trial court” to decide the summary judgment motion, “and its order and judgment must be reversed.”
“The standard for deciding a summary judgment motion is well-established, as is the standard of review on appeal. ‘[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.]”
(Richard B. LeVine, Inc. v. Higashi
(2005)
“Summary judgment is an appropriate remedy when the doctrine of collateral estoppel refutes all triable issues of fact suggested by the pleadings and supporting documents. [Citation.] We review the trial court’s decision de novo.”
(Kelly v. Vons Companies, Inc.
(1998)
I. The Claim of Waiver of the Collateral Estoppel Defense.
As a threshold matter we find that respondent did not waive the issue of collateral estoppel by failing to plead it as an affirmative defense, as asserted by appellant. We observe that only the preclusion of relitigation of
claims
pursuant to the principles of
res judicata
is an affirmative defense that must be pled or otherwise raised in the trial court to avoid waiver.
(Dillard v. McKnight (1949) 34
Cal.2d 209,
219 [209 P.2d
387];
David v. Hermann
*89
(2005)
Here, the issue of successor liability had not been resolved in the other cases until after respondent filed an answer to appellant’s complaint in February of 2001. Respondent then raised the issue of the collateral estoppel effect of orders in the Vasen and Pena cases in its summary judgment motion, in conjunction with the alternative contention that if the prior rulings were not considered binding, successor liability was nevertheless negated by the evidence. Respondent proceeded to present and litigate the issue of successor liability, but not without also claiming as a preliminary matter that the issue had been conclusively determined in previous litigation. No waiver of the issue occurred, so we proceed to determine whether collateral estoppel operates to foreclose appellant from seeking recovery from respondent as a corporate successor of Arnot.
II. The Effect of the Prior Rulings in Other Cases on the Successor Liability Issue.
Issue preclusion by collateral estoppel “prevents ‘relitigation of issues argued and decided in prior proceedings.’ [Citation.]”
(Castillo v. City of Los Angeles
(2001)
“ ‘Traditionally, collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding “if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].” . . .’ [Citations.]”
(People
v.
Carter
(2005)
The only element of collateral estoppel in dispute in the present appeal is the identity-of-parties requirement.
5
“ ‘[T]he party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.’ [Citation.]”
(Gikas
v.
Zolin
(1993)
“The concept of privity for the purposes of . . . collateral estoppel refers ‘to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights [citations] and, more recently, to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is “sufficiently close” so as to justify application of the
*91
doctrine of collateral estoppel. [Citations.]’ [Citations.] ‘ “This requirement of identity of parties or privity is a requirement of due process of law.” [Citation.] . . .’ [Citations.]”
(Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn., supra,
“Even if these threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles.”
(Gikas
v.
Zolin, supra,
We have no quarrel with the proposition advanced by respondent that appellant’s interests in exposing Sargent to liability as a successor corporation are comparable to those of the plaintiffs in the
Vasen
and
Pena
cases. Further, those common interests appear to have been represented in the prior cases. “A party is adequately represented for purposes of the privity rule ‘if his or her interests are so similar to a party’s interest that the latter was the former’s virtual representative in the earlier action. [Citation.]’ [Citation.] We measure the adequacy of ‘representation by inference, examining whether the . . . party in the suit which is asserted to have a preclusive effect had the same interest as the party to be precluded, and whether that. . . party had a strong motive to assert that interest. . . .’ [Citation.]”
(Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn., supra,
We also agree that imposing issue preclusion would further the cognizable interests of avoiding harassment of respondent with repeated litigation, reducing the possibility of inconsistent judgments, and promoting
*92
judicial economy.
6
(See
People v. Sims
(1982)
Appellant did not have any proprietary interest in the
Vasen
and
Pena
cases. While he had a theoretical “interest” in the resolution of the successor liability issue in the prior cases—in that an outcome favorable to the plaintiffs would have been binding upon Sargent—he had neither incentive to intervene in those actions nor reason to expect he would be bound by decisions in which he did not participate.
(Old Republic Ins. Co. v. Superior Court, supra,
That appellant is represented by the same counsel as were the plaintiffs in the prior actions does not, we conclude, suffice to extend the doctrine of privity to his case. In
Vega v. Jones, Day, Reavis & Pogue
(2004)
We also conclude that representation of different plaintiffs in different cases by the same attorneys is not a factor that justifies imposition of collateral estoppel to preclude litigation of an issue by appellant as a nonparty to the prior actions, at least without evidence that through his attorney he participated in or controlled the adjudication of the issue sought to be relitigated.
(Webb v. Distefano
(D.Neb. 1983)
Respondent directs our attention to
Cauefield
v.
Fidelity and Casualty Company of New York
(5th Cir. 1967)
The court in
Cauefield
recognized that the “doctrine of res judicata plainly does not apply” in this case, which in Louisiana “uncompromisingly” demanded “identity of parties,” but found that the federal court case was foreclosed by the “common-law concept recognized in Louisiana” of “judicial estoppel,” which had fashioned “exceptions” to the rigid identity-of-parties requirement.
(Caufield, supra,
We are not in this appeal presented with consideration of the Louisiana “judicial estoppel” doctrine. We further find that the “unusual facts” upon which the decision in
Cauefield
rested are absent here and compel a different result.
(Humphreys v. Tann, supra,
We understand respondent’s frustration with the burden that falls upon a defendant repeatedly forced to adjudicate with the same attorneys issues already resolved in its favor. Nevertheless, we cannot expand the concept of privity beyond its contemplated and justified bounds where to do so would run afoul of due process considerations that limit the scope of issue preclusion.
(Humphreys v. Tann, supra,
*96 DISPOSITION
Accordingly, judgment is reversed and the case is remanded to the trial court with directions to consider the merits and resolve the issue of Sargent’s liability to appellant as a successor in interest of Amot. 7 The parties are to bear their own costs on appeal.
Marchiano, R J., and Margulies, J., concurred.
On February 7, 2006, the opinion was modified to read as printed above.
Notes
Respondent also asserted that appellant failed to offer any admissible evidence that he was exposed to asbestos-containing products installed by Amot.
In Vasen, the trial court found after trial that the plaintiff failed to prove an assignment of the liabilities of Amot to Kahr and later Sargent; and in Pena, the trial court granted Sargent’s summary judgment motion upon a finding of “no triable issue of fact regarding assumption of liability by fact or law of Amot... by Sargent. . . .”
The “Amot Marine Division” of Kahr subsequently sought and obtained partial payment of the bankruptcy claim.
As was done here. We grant appellant’s request for judicial notice filed July 18, 2005.
The elements of identity of issues and a final adjudication of the issue on the merits are established.
We observe that collateral estoppel, if applied, will invariably promote judicial economy and reduce the possibility of inconsistent judgments.
We of course express no opinion on how the issue should be determined, and we decline to resolve the issue on the record before us. We are not a factfinding court, and we are reluctant to decide an issue of fact that was not addressed by the trial court, particularly where questions of the admissibility of evidence were also not decided below.