New CA Tort Case

New Published California Tort Case

The Federal "Two-Dismissal rule" Does not Apply not in California Courts.

The California Supreme Court addressed this issue last month. Below is my one-paragraph case summary from my online publication California Case Summaries™: 

Doe v. Marysville Joint Unified School Dist. (2026) _ Cal.5th _ , 2026 WL 1903024: The California Supreme Court reversed the Court of Appeal's decision, which had affirmed the trial court order sustaining defendant’s demurrer, without leave to amend, and dismissal of plaintiffs’ state-court sexual abuse claims. The trial court held that claim preclusion barred the suit under the federal "two-dismissal rule" (Fed. R. Civ. P. 41(a)(1)(B)) because plaintiffs had twice previously dismissed nearly identical actions (once in state court, once in federal court). The Court of Appeal affirmed the trial court in a split decision, reasoning it was bound to treat the second federal dismissal as claim preclusive under Rule 41(a)(1)(B). The California Supreme Court disagreed and reversed, concluding that Rule 41(a)(1)(B) is merely a federal procedural rule barring refiling in federal court — not a substantive rule of claim preclusion — and therefore a rule 41(a)(1)(B) dismissal did not bar a subsequent state-court action on the same claims. Practitioner takeaways: (1) the federal "two-dismissal rule" only forecloses refiling in federal court, not in state court, so plaintiffs retain the ability to pursue state law claims in state court after a second federal voluntary dismissal; (2) Semtek Int’l Inc. v. Lockheed Martin Corp. (2001) 531 U.S. 497, 507–508 holding that Rule 41(b) is not a claim-preclusion rule applies equally to Rule 41(a)(1)(B), given the identical "adjudication on the merits" language; (3) practitioners defending against repeat-filed claims (including in the childhood sexual abuse revival-statute context) cannot rely on the two-dismissal rule alone to establish claim preclusion in California courts and must instead satisfy the ordinary elements of federal or state res judicata; and (4) counsel litigating parallel or successive state/federal actions should carefully consider the sequencing and forum of voluntary dismissals, since only a true final judgment on the merits — not a procedural default rule — will carry preclusive weight across court systems. (July 2, 2026.)

Mediation, Arbitration & Referee Services

Monty A. McIntyre, Esq. helps attorneys and their clients throughout California as a mediator, arbitrator and referee, handling employment (PAGA, wage and hour, wrongful termination, discrimination, retaliation), tort (elder abuse, legal malpractice, medical malpractice, personal injury, product liability and wrongful death), business, commercial, insurance (bad faith, coverage, UIM), real property and trust and estate/probate cases. Monty has been a California civil trial lawyer since 1980, a member of ABOTA since 1995, has tried over 100 civil cases (jury trials, judge trials, administrative trials and arbitrations), and has represented both plaintiffs and defendants in the areas listed above.

When you want a mediator who's tried lots of civil jury trials, bench trials and arbitrations for plaintiffs and defendants, has mediated lots of cases, and knows the new California civil case law, Monty is happy to help.  

To easily schedule a mediation, pick your date on Monty's calendar: https://montymcintyre.com 

You can also mediate with Monty at ADR Services. To schedule at ADR Services contact Rachael Boughan, rboughan@adrservices.com, (619) 233-1323.

 California Case Summaries™
Know The New Law.  

California attorneys will win more cases and get better results by always knowing the new civil case law in their practice areas. California Case Summaries™ make this easy with unique one-paragraph case summaries, with practitioner takeaways, that are organized by legal topic of every new civil case published by California courts throughout each year. Seven publication options are available for either Law Firm Unlimited subscriptions (the firm can send summaries to every firm attorney) or Individual Attorney subscriptions (only the subscribing attorney can read the summaries).

There are two ways to get California Case Summaries™:

1. Mediate with Monty McIntyre to Get a Free 1-Year Subscription to California Case Summaries™:

Law Firm Lawyers: When law firm lawyers conduct two half-day or two full-day private mediations in one calendar year with Monty McIntyre your law firm will get a free 1-year Law Firm Unlimited subscription (letting the firm send summaries to every firm attorney) to California Case Summaries™.

Sole Practitioners: When you conduct one half-day or full-day private mediation with Monty McIntyre you'll get a free 1-year Individual Attorney subscription (only the subscribing attorney can read the summaries) to California Case Summaries™.
 

Easily schedule a mediation with Monty by picking your date on Monty's calendar: https://montymcintyre.com 

You can also mediate with Monty at ADR Services. To schedule at ADR Services contact Rachael Boughan, rboughan@adrservices.com, (619) 233-1323.


2. Buy One of the CCS Publications:

Law Firm Unlimited subscriptions (the law firm can send summaries to every firm lawyer):  

• California Case Summaries™ (monthly, quarterly and annual issues). Subscribe.
• CCS Monthly™ (monthly issues only). Subscribe.
• CCS Quarterly™ (quarterly issues only). Subscribe.
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• CCS Annual Employment™ (annual issues only). Subscribe. 
• CCS Annual Tort and Insurance™ (annual issues only). Subscribe.
  
• CCS Annual Real Property™ (annual issues only). Subscribe.

Individual Attorney subscriptions (only the subscribing attorney can read the summaries):

• California Case Summaries™ (monthly, quarterly and annual issues). Subscribe.
• CCS Monthly™ (monthly issues only). Subscribe.
• CCS Quarterly™ (quarterly issues only). Subscribe.
• CCS Annual™ (annual issues only). Subscribe.
•  CCS Annual Employment™ (annual issues only). Subscribe.
• CCS Annual Tort and Insurance™ (annual issues only). Subscribe.
  
• CCS Annual Real Property™ (annual issues only). Subscribe. 
  
   

To get free one-paragraph summaries of every new civil case published by the California Supreme Court in 2024. Click here.

Do well and be well.  

Best regards,
Monty A. McIntyre, Esq.
Ending Litigation Trauma &
Helping Attorneys Get Excellent Results
-Settling or Deciding Cases or Issues: Mediator, Arbitrator & Referee
Employment, Torts, Business, Real Property, Insurance and Probate Cases
To easily schedule a new matter visit: https://montymcintyre.com 
-Working Up Cases: California Case Summaries™: Know The Law
-Trying Cases: Trial Alchemy™ - Learn from Civil Jury Trial Experts
ABOTA Member Since 1995
Past President San Diego County Bar Assn. (2002), Past President SD ABOTA Chapter (2014)
Phone: (619) 990-4312 | Email: monty@montymcintyre.com