Date: July 5, 2006
San Francisco , California

In a reported decision from California's First District Court of Appeal, Division Two, Timothy Halloran with Murphy, Pearson, Bradley & Feeney successfully argued to the court that an Order granting summary judgment based upon the doctrine of judicial estoppel was properly granted. Levin v. Ligon (2006) (Cal. 1st App. Dist. June 30, 2006).

Judicial estoppel is a rule of equity that is intended to protect the integrity of the judicial system by preventing a litigant from asserting a position contrary to one he or she has previously taken, for personal benefit, in a separate judicial proceeding. Judicial estoppel is sometimes referred to as the doctrine of preclusion of inconsistent positions, and is intended to prevent a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.

Plaintiff/Appellant Daniel Levin and Defendant/Respondent Janie Ligon were married in California in 1971. The couple moved to England in 1994 but separated in April 1995 while still residing in England. The divorce proceedings were handled in the English court, which dissolved the marriage on December 20, 1995.

In February 1996, Mr. Levin hired an English law firm to represent his interests in recovering his share of the couple's real and personal property. A month later, on March 11, 1996, Mr. Levin married an English woman named Allison Beatt.

Both parties filed an application in England for the adjudication of certain property rights under English law, including certain personal assets that are referred to as ancillary relief. Mr. Levin later learned, however, that under the British law, his marriage to Beatt barred his claim for ancillary relief against Ms. Ligon.

Mr. Levin thereafter initiated a legal malpractice action against his solicitors, claiming they failed to advise him that his marriage to Beatt would bar him from applying for ancillary relief. In support of his claim, Levin submitted a declaration, which stated the following: "I have never professed to be knowledgeable about English family law. However, I had consistently been advised that, bearing in mind the contributions I had made to the marriage, the sacrifices I had made to support Ms. Ligon's career and the sums I had expended to allow her to accumulate her significant capital assets, I would be entitled to both a capital lump sum and periodical payments, alternatively a lump sum in lieu. It is solely through the negligence of the Defendant firm that I lost that entitlement. Accordingly, I ask this Honorable Court to Order that I be compensated by the Defendant for the loss[,] which it had caused me."

In 1998, Levin settled his malpractice action against his barristers for approximately $331,813. According to the Queen's Bench Division of the High Court of Justice in England, this sum represented, "[T]he difference between the amount [Levin] would have received had he been able to make an ancillary relief application under the Matrimonial Causes Act 1973 (as amended), and the sum of US $320,000 being the amount received in his subsequent application under section 17 of the Married Women's Property Act 1882 (as amended)…" but for the negligence of his barristers. In October 1999, after returning to California, Mr. Levin filed a complaint against his former spouse and her employer for partition of certain personal property held in Ms. Ligon's name. Mr. Levin claimed a community property, or one-half interest, in certain assets that he alleged in the California action were earned during their marriage. These were the same assets, however, the Mr. Levin had asserted in the British Court he had lost entitlement to because of his barristers' malpractice.

On October 20, 2004, the trial court entered summary judgment in favor of Ms. Ligon and against Mr. Levin, ruling that Mr. Levin was barred from recovering any of the property at issue in his civil partition action. The trial court found that the position Levin took in the English solicitor malpractice action was: "that his remarriage to Alison Beatt, during the pendency of the property distribution phase of his divorce from Ligon…, precluded him from filing an application for ancillary relief against Ligon; and…that he permanently lost entitlement to any of Ligon's personal property assets as a result of his English solicitor's failure to advise him, prior to [Levin's] remarriage, that such remarriage would preclude him from claiming entitlement to Ligon's personal property assets…[Levin's] position in this civil partition action in the Superior Court…is that he is now entitled to seek partition of those very assets to which he was previously, permanently barred."

The trial court further explained that there is no issue of material fact in dispute that Mr. Levin took "(1) two positions; (2) in two separate judicial proceedings; (3) that are totally inconsistent; and (4) were not the product of ignorance, fraud or mistake." The court concluded that Mr. Levin "was successful in the prior proceeding against his English solicitors because, at least in part, his recovery in that action necessarily included damages stemming from his lost claim to Ligon's personal property assets." However, the court noted that this latter fact was immaterial, and the dispositive factor was that Levin had "asserted a position, under oath in a judicial proceeding[,] which is inconsistent with a position he now asserts in a separate proceeding . . . ."

The Court of Appeal agreed with the trial court, finding that Mr. Levin's two positions were entirely inconsistent, and were precisely the type of conduct that the judicial estoppel doctrine was intended to prevent.

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