Bennett

*911 INTRODUCTION

Plaintiff Shawn Bennett sued defendant Rancho California Water District (the District) for whistleblower retaliation in violation of Labor Code section 1102.5, subdivision (b). 1 At the jury trial, the trial court excluded evidence showing Bennett's relationship with the District was anything other than an employment relationship. Citing an administrative law judge's prior finding Bennett had been the District's employee for purposes of retirement benefits *24 eligibility through the California Public Employees' Retirement System (CalPERS), the trial court concluded the doctrine of collateral estoppel applied and established Bennett had been the District's employee.

We reverse and remand to the trial court with directions to conduct a new trial. We hold a party is not collaterally estopped from litigating an issue when, in a prior proceeding, a dispositive finding had been made, but only by imposing a lesser burden of proof on the party invoking collateral estoppel than that which would have been applied in the subsequent proceeding. To prevail on a section 1102.5(b) claim, the plaintiff must prove employment status. In the prior CalPERS proceeding, the…

*929 I respectfully disagree with the majority's conclusion the trial court incorrectly applied the doctrine of collateral estoppel and prohibited the District from relitigating the prior determination that Bennett was an employee. However, I agree the trial court correctly denied the District's JNOV motion. Accordingly, I would affirm the judgment and the postjudgment order.

The trial court concluded all the elements of collateral estoppel were satisfied. I agree. There was a "final adjudication" of an "identical issue" (Bennett's employee status); that issue was "actually litigated and necessarily decided" in the prior action in favor of Bennett; and he "asserted" it in this action against the District, "a party" to the prior action. ( DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813 , 825, 189 Cal.Rptr.3d 809 , 352 P.3d 378 .)

The majority reaches the opposite conclusion, reasoning the identical issue element was not satisfied, because the District had the burden of proving Bennett was not an employee in the prior action, and Bennett had the burden of proving he was an employee in this action. This is a distinction without a difference, based on the logical fallacy of…