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December 14, 1990

ISABEL YANEZ, Plaintiff,
UNITED STATES, Defendant; UNITED STATES, Third-Party Plaintiff, v. BROCO, INC., J.S. BROWER & ASSOC., and J.S. BROWER, Third-Party Defendants

Spencer Williams, United States District Judge.

The opinion of the court was delivered by: WILLIAMS


 This matter came to be heard on defendant United States' Motion for Summary Judgment on the Issue of Judicial Estoppel, Plaintiff's Motion for Reconsideration of Order Granting Partial Summary Judgment to Defendant United States, and Third-Party Defendants' Motion to Dismiss. Good cause having been shown, defendant United States' motion is GRANTED; plaintiff's motion is DENIED; and third-party defendants' motion is GRANTED.


 Plaintiff Isabel Yanez ("Yanez") filed this action on June 7, 1988, against defendant United States (the "government") pursuant to 28 U.S.C. § 1346(b), the Federal Tort Claims Act ("FTCA"), alleging that she was injured by an explosion that occurred while she was working at Caelus Devices, Inc. ("CDI"), on June 11, 1986. CDI was engaged in the production of military equipment, explosive components, pursuant to a contract with defendant United States. Yanez alleges in this suit that government liability arose both from the contractual relationship between the government and CDI and from the government's negligent failure to enforce safety precautions mandated by the contract.

 Fifteen months before filing this suit, Yanez and CDI had sued defendants J.S. Brower & Assoc., J.S. Brower, and Broco, Inc. ("Broco and Brower") in state court, claiming that a defect in the lead azide was the cause of the accident which injured Yanez. See exhibits attached to Decl. of William Murphy (including copy of Complaint). Yanez settled the state court action against Broco and Brower, receiving approximately $ 375,000.00. The state court judge who presided over the settlement made a good faith settlement determination, pursuant to California Code of Civil Procedure § 877.6. *fn1"

 After Yanez brought this FTCA action solely against the government, the government impleaded Broco and Brower as third-party defendants. Broco and Brower asked this court to dismiss because their earlier settlement was made in good faith under California Code of Civil Procedure § 877.6, but this court denied that motion and refused to dismiss the third-party complaint against Broco and Brower.

 Although the state suit was brought against Broco and Brower for the defect in lead azide, plaintiff now completely denies that the defective lead azide caused the accident. Plaintiff denied the following request for admission by the government: "Plaintiff is of the opinion that defective dextrinated lead azide supplied by Broco, Incorporated to Caelus Devices, Inc. on June 9, 1986 caused her accident of June 11, 1986." In addition, plaintiff's expert witnesses now claim that the negligence of the government was the sole cause of the accident. See Decl. of Bunker ("It is of my opinion that had safe and proper procedures been established and/or enforced by defendant herein [United States], it is more probable that plaintiff Isabel Yanez would not have been injured"); see also Decl. of Roth ("Had the Government [sic] enforced the safety requirements utilized by the munitions industry as of the date of the accident that proper and effective grounding devices be utilized when lead azide was being handled, the subject accident would have, in all likelihood, been eliminated").


 The government argues that Yanez should be barred by judicial estoppel from bringing forward a new theory of liability in this action because Yanez had argued in the state court action that the cause of the accident was a defect in the dextrinated lead azide.

 The general rule of judicial estoppel in the Ninth Circuit is the following:

A plaintiff who has obtained relief from an adversary by asserting and offering proof to support one position may not be later heard in the same court to contradict himself in an effort to establish against the same adversary a second claim inconsistent with his earlier contention. Such use of inconsistent positions would most flagrantly exemplify that "playing fast and loose with the courts" which has been emphasized as an evil the courts should not tolerate. State of Arizona v. Shamrock Foods Co., 729 F.2d 1208, 1215 (9th Cir. 1984), cert. denied, 469 U.S. 1197, 83 L. Ed. 2d 982, 105 S. Ct. 980 (1985), quoting Scarano v. Central R. Co. of New Jersey, 203 F.2d 510, 513 (3d Cir. 1953) (emphasis added).

 Judicial estoppel differs from collateral estoppel and equitable estoppel. The main purpose behind the theory of judicial estoppel is to maintain the integrity of the court: a party should not be allowed to argue inconsistent theories before the courts because the entire judicial process will become corrupted. See Comment, "Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel," 80 Nw.U.L.Rev. 1245 (1986) (hereinafter "Comment").

 Yanez argues that judicial estoppel should not apply here because (1) the two claims are not conflicting claims and (2) the claims are not in the same court against the same party. While the plain language of Shamrock Foods seems to indicate that judicial estoppel does not apply to the case at bar, the government argues persuasively that the above cited language in Shamrock Foods is dicta. The Ninth Circuit has only considered the issue of judicial estoppel in three cases, and not one of them addresses the question of whether the claims must be in the same court against the same party. See Garcia v. Andrus, 692 F.2d 89 (9th Cir. 1982); Stevens Technical Services, ...

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