The law-of-the-case doctrine

What is it and when does it apply?

2024 December

The law-of-the-case doctrine can be a very potent sword or shield when it applies because it will operate to bind the parties and the courts to a particular legal conclusion in a case. But most trial lawyers are hazy on how and when the doctrine applies.

This ignorance is understandable. Thankfully, in most of our cases there is only a single appeal, so the doctrine has no potential application. But in cases where there has previously been an appeal, the doctrine may apply, and it is important to understand its impact. In this article, I will explain the contours of the doctrine so that you can either try to capitalize on it or try to blunt it, as your client’s interests dictate.

The law-of-the-case doctrine – general principles

Like many legal doctrines, the law-of-the-case doctrine is easy to state but can be tricky to apply. The general scope of the doctrine was explained by the California Supreme Court in People v. Barragan (2004) 32 Cal.4th 236, 245-246. This is the basic formulation of the doctrine, per Barragan:

Under the law of the case doctrine, when an appellate court “‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case’s] subsequent progress, both in the lower court and upon subsequent appeal....’” (Kowis v. Howard (1992) 3 Cal.4th 888, 893.) Absent an applicable exception, the doctrine “requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.” (Estate of Baird (1924) 193 Cal. 225, 234.) As its name suggests, the doctrine applies only to an appellate court’s decision on a question of law; it does not apply to questions of fact.

(Id. at pp. 234-239.)

Hence, when it applies, the doctrine will bind the trial court after a remand from an appeal, as well as an appellate court in a second (or later) appeal. (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127.) The doctrine even binds the California Supreme Court when it considers a second appeal after a decision has been rendered by the Court of Appeal. “Where a decision upon appeal has been rendered by a District Court of Appeal and the case is returned upon a reversal, and a second appeal comes to this court directly or intermediately, for reasons of policy and convenience, [the] court generally will not inquire into the merits of said first decision, but will regard it as the law of the case.” (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.)

The doctrine is not jurisdictional; its primary purpose is to conserve judicial resources. As the Searle court explained, the doctrine accords finality to the initial appellate ruling to avoid reversals and proceedings on remand that could result if the initial proceedings were reexamined in later appellate proceedings in the same case. (Id., 38 Cal.3d at p. 435.) The court in Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 304, put it this way: “Litigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court.”

The doctrine applies only to appellate opinions rendered by the Supreme Court or an appellate court; no comparable binding effect is accorded to trial- court rulings. (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1186.) But the doctrine is not limited to appeals from a judgment after a trial. It will apply to any appellate decision that articulates a legal ruling, such as a judgment on demurrer, nonsuit order, or denial of an anti-SLAPP motion. (Bergman v. Drum (2005) 129 Cal.App.4th 11, 15.)

Requisites for the doctrine to apply

Not every word of an appellate opinion becomes “law of the case.” In general, there are three main requirements to trigger its operation. As you will see, each “rule” seems to come with its own exceptions.

The point at issue must have been expressly decided. The doctrine generally applies to points that were expressly decided in the appellate court’s decision. (Olson v. Cory (1983) 35 C3d 390, 399.) But – and so often there is a but – some matters can become law of the case even if they were only implicitly decided, if their resolution was essential to the court’s decision. (Id., at p. 399 [the appealability of a judgment was implicitly decided in the prior appeal].)

The point at issue must have been “necessary” to the decision. The doctrine does not apply to dictum; it only applies to rulings that were “necessary” to the appellate court’s opinion. (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 498; Anne H. v. Michael B. (2016) 1 Cal.App.5th 488, 499-500.) Note, however, that in Lucky United Properties Investments, Inc. v. Lee (2013) 213 Cal.App.4th 635, 651, the court held that the doctrine applied to a ruling that, although “not essential” to the appellate disposition, was made for trial court’s guidance on remand.

The doctrine is limited to principles of law; it does not apply to the facts. The facts that are stated in an appellate opinion are not law of the case. (Investors Equity Life Holding Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1377.) But “when the facts are not disputed, the effect or legal significance of those facts is a question of law.” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 612 [holding that a finding in the prior appeal that Iran was not suitable forum remained law of the case].)

The doctrine applies only to the same case. The doctrine is triggered only by an earlier appellate decision in the same case. A prior opinion in a related but separate case does not support application of the doctrine, although it may support application of the principles of res judicata. (Daar & Newman v. VRL Int’l (2005) 129 Cal.App.4th 482, 489.)

The doctrine only applies to the same parties. The doctrine will not apply to parties in a case who where not parties to the earlier appeal. (Bergman v. Drum (2005) 129 Cal.App.4th 11, 20.)

The facts must be substantially the same. For the doctrine to apply, “the issues and facts found remain substantially the same, and has no application where the facts alleged and found are materially different from those considered on a former appeal.” (Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th 827, 837.) This aspect of the rule can substantially weaken or nullify its application, as explained in more detail below. As explained in People v. Cooper (2007) 149 Cal.App.4th 500, 524, the doctrine does not prevent retrial of an issue, but it does require the same conclusion to be reached if the issue is retried on the same evidence.

The doctrine can be disregarded in “exceptional situations”

Because it is not a jurisdictional rule, a court can decline to apply the doctrine where its application would lead to an “unjust decision.” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492; Moore v. Kaufman (2010) 189 Cal.App.4th 604, 617 [doctrine not applied where its application would have required the court of appeal to “deliberately shut[ ] our eyes to a manifest misapplication of existing principles that results in substantial injustice”].)

But to invoke this exception, the injustice must be substantial and exceptional; a court cannot ignore the doctrine based simply on a disagreement with the prior opinion in the case. (Morohoshi, 34 Cal.4th at p. 492.)

Where there has been an intervening change in the law after the earlier appeal, a court can decline to apply the doctrine. (Morohoshi, 34 Cal.4th at p. 492.) A change in the law will allow either an appellate court or a trial court to depart from the prior appellate opinion. (Ryan v. Mike-Ron Corp. (1968) 259 Cal.App.2d 91, 99.)

Similarly, the doctrine will not apply when an appellate court decides a subsequent appeal on a ground not considered in the earlier appeal. (Searle, 38 Cal.3d at p. 435.) For a more thorough discussion of these principles, consult Eisenberg and Hepler, California Practice Guide – Civil Appeals and Writs (Rutter 2024) § 14:172, et seq.

Nuances in the application of the doctrine, such as when the prior appeal has construed a legal document

As noted above, the doctrine does not apply to the facts of a case, nor does it prevent a party from introducing new or different facts at trial after a case has been remanded by an appellate court. “In other words, although an appellate court’s legal determination constitutes the law of the case, upon a retrial ... that law must be applied by the trial court to the evidence presented upon the second trial.” (Barragan, 32 Cal.4th at p. 246.)

This means that the appellate court’s binding legal determination “controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based.” (Id., emphasis added.) The doctrine therefore does not apply when “there is a substantial difference in the evidence to which the announced principle of law is applied.” (Id., brackets omitted.)

Importantly, “Even where the appellate court reverses based on the sufficiency of the evidence the rule of the law of the case may not be extended to be an estoppel when new material facts, or evidence, or explanation of previous evidence appears in the subsequent trial.” (Id. at pp. 246-247, emphasis added, cleaned up.) In reviewing prior cases that applied this rule, the Barragan court noted, in Mitchell v. Davis (1863) 23 Cal.381, 383-384, that after a remand for a new trial “the plaintiff had a clear right to introduce any evidence relevant to the issues to be tried.” (Barragan, at p. 248.)

The Barragan court concluded its discussion of the doctrine with this statement: “[T]hese decisions demonstrate that nothing in the law of the case doctrine itself limits a party’s ability to introduce additional evidence at retrial after a reversal for insufficient evidence.” (Id., at p. 249.)

But the cases also show that a party cannot simply contradict the court of appeal’s findings in the prior appeal. The decision in Kerr Land & Timber v. Emmerson (1965) 233 Cal.App.2d 200, is particularly useful to explain the way the doctrine has been applied when the prior opinion construes a legal document.

In Kerr Land, defendant Emmerson owned an easement across land owned by Kerr Land & Timber Co. (Kerr). Emmerson appealed an injunction issued by the trial court that limited the scope of the easement, and that denied it any relief on its cross-complaint. Both parties agreed that the controversy arises over the construction of a paragraph of an agreement entered into by the parties’ respective predecessors in interest.

Their predecessors had previously litigated the construction of the easement in prior litigation. The crux of the dispute is that Emmerson’s predecessor had licensed independent loggers and truckers to use the road across Kerr’s predecessor’s land, effectively operating it as a toll road. The appellate court found, based on its construction of paragraph 6 of the relevant contract, that this use was contrary to the intention expressed by the original parties to the agreement. (Kerr Land, 233 Cal.App.2d at p. 213.)

The principal issue addressed in Kerr Land was the impact of this prior finding in the parties’ current dispute, given the law-of-the-case doctrine. The gist of the court’s ruling on that issue was that the prior appellate finding did not compel the findings and conclusions made by the trial court in the current dispute, “and do not preclude all attack on the same by the appellants, they do restrict the scope of review and prevent consideration of appellants’ attempts to reopen the question of their right to license and collect tolls indiscriminately.” (Id., at p. 212.)

The prior opinion had stated, “The easement is not limited in scope to the transportation of timber cut from plaintiffs’ land alone but also contemplates timber cut from other properties then owned or subsequently owned or controlled by the purchaser in the surrounding area’ . . . and ‘we think it clear that the parties intended that the right-of-way used only in conjunction with the removal of timber cut by the purchaser in the general area surrounding the sellers’ lands.’” (Id. at p. 213, emphasis in original.)

In response to the appellants’ citation of cases for the proposition that the law-of-the-case doctrine does not apply where a different state of facts is presented in the second trial, the court of appeal stated, “In none of these cases was the interpretation of a written instrument involved.” (Id., at p. 214.) The court noted that, although the doctrine would not apply to questions of laches, statutes of limitation, an adverse user, which only became relevant in the second trial, the prior appellate decision’s interpretation of paragraph 6 of the contract was a question of law and was properly subject to law of the case. (Id., at pp. 214, 215.)

This meant that “[a]ny difference in the evidence produced at the two trials is immaterial on this point as the prior decision on appeal reflects that it was rendered solely on consideration of the terms of the agreement itself without resort to extrinsic evidence.” (Id. at p. 215, emphasis added.)

The court conceded that the interjection of new issues into the case at the second trial, such as the rights acquired by adverse possession, would preclude application of the doctrine on those issues, “but the mere amendment of the pleadings will not preclude the application of the doctrine to such issues as remain the same.” (Ibid.)

Accordingly, the appellate court held, “It is, therefore, concluded that appellants are precluded from further urging that the agreement grants them the right to license independent loggers and truckers and other strangers to pass over plaintiff’s land.” (Id. at p. 216.)

The court went on to find that the prior decision did not attempt to clearly define some of the terms referenced in the contract, such as the phrases “surrounding area” and “general area surrounding the seller’s lands.” (Id. at p. 216.) As a result, the appellants were permitted to attack the findings and conclusions where there was ambiguity. (Id. at p. 217.)

But the prior decision did circumscribe the manner in which this attack could proceed. The court noted that the appellants, in part,

seek to disregard the mandate of the prior decision that effect must be given to the last clauses of paragraph 6. Such statements as ‘[t]he grant of a right of way controls over a subsequent limitation thereof’; ‘[a]n expression of the purpose of making the conveyance is generally held to be directory only and not to qualify or limit a grant which is absolute in form’; and the assertion that ‘[t]he final clause should be rejected’ in reliance upon the provisions of sections 1653, and of sections 1069, and 1070 of the Civil Code, all are precluded from further consideration by the opinion in Kerr v. Brede, supra, for the reasons set forth in the first part of this opinion.

(Id., 233 Cal.App.2d at p. 219.)

The court further held, however, that because the terms of the contract were sufficiently vague to require the parties to introduce extrinsic evidence, the trial court could properly consider such evidence, including the circumstances under which the contract was made, custom and usage, and the parties’ practical construction of the agreement before the dispute arose. (Id. at p. 219.)

The court’s discussion of the additional evidence and the parties’ contentions is lengthy and detailed, and not relevant to the scope of this article. But ultimately, the Kerr court reversed the trial court’s decision, with these directions: “The cause is remanded to the court below with directions to amend its findings in respect to the interpretation of ‘lying on various sides,’ to make amended and specific findings on the issues hereinabove referred to in connection with alleged prescriptive rights, and to make conclusions of law and enter judgment in accordance with such revised findings.” (Id. at p. 234.)

Conclusion

If a prior appellate decision went your way, you will likely want to assert the doctrine to try to bind the trial court (and a later appellate court). And if things didn’t go so well in the earlier appeal, you will likely want to assert some of the limitations built into the doctrine. Either way, this article shows you what a potent weapon the doctrine can be, as well as certain paths that may allow you to avoid its application.