Chen

MEMORANDUM *

Appellants Ruey Mao Chen and Shu Nu Chen appeal the district court’s summary judgment dismissal of their action asserting civil Racketeer Influenced and Corrupt Organizations Act (RICO) and California unfair business practices claims as barred by the statutes of limitation and collateral estoppel. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the grants of summary judgment de novo. Brown v. Li, 299 F.3d 1092, 1099-1100 (9th Cir.2002). The district court dismissed this case on statute of limitations and collateral estoppel grounds. We affirm on the basis of collateral estoppel.

Because the parties are familiar with the facts, we recite them only as necessary for this decision. We apply California law to determine the preclusive effect of the prior California state court adjudication. 28 U.S.C. § 1738 .

To support both the RICO and unfair business practices act claims, the Chens alleged that the Appellees obtained the Chens’ property through threats, including a death threat. Appellees previously obtained quiet title to the property by default judgment. The Chens moved to set aside the default judgment on the ground that their failure to defend the…

I agree with my colleagues that, under California law, only those motions decided after a hearing “that was the equivalent of a trial with oral testimony” may serve as the basis for collateral estoppel. Groves v. Peterson, 100 Cal.App.4th 659, 668 , 123 Cal.Rptr.2d 164 (2002), amended by 2002 WL 1822949 (Aug. 9, 2002). However, the majority errs in finding that the hearing in this case met the California standard. The court ruled on the plaintiffs’ motion after reviewing several declarations and depositions; this abbreviated evaluation was appropriate for the disposition of a motion in a summary procedure. Declarations and depositions, however, do not amount to “the equivalent of a trial with oral testimony,” particularly if the question at issue turns on an assessment of the parties’ relative credibility. See Mendoza Manimbao v. Ashcroft, 298 F.3d 852, 858 (9th Cir.2002) (emphasizing the importance, in evaluating credibility, of nonverbal cues absent from a transcript) (citing Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078-79 (9th Cir.1977)). Because the motion hearing in this case was inadequate to support a finding of collateral estoppel, I respectfully dissent.