Los Angeles Branch Naacp v. Los Angeles Unified School District

750 F.2d 731

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 1985
• Docket: 81-5772
• Status: Published

Opinions

CANBY, Circuit Judge:

We took this case en banc to decide the extent to which the doctrine of res judicata bars this class action alleging intentional segregation in the Los Angeles public schools in violation of the United States Constitution. Defendants moved in district court for summary judgment on the ground that plaintiffs were seeking in this action to relitigate the same claim that had been litigated and decided in Crawford v. Board of Education, 113 Cal.App.3d 633, 170 Cal.Rptr. 495 (1980), aff'd, 458 U.S. 527, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982). The district court denied the motion, 518 F.Supp. 1053, and certified this interlocutory appeal. 28 U.S.C. § 1292(b).

I.

FACTS

The Crawford litigation began in 1963 as a class action on behalf of black high school students seeking to desegregate a high school in Los Angeles. Before trial, the complaint was amended to assert a desegregation claim on behalf of all black and Hispanic students attending school in the Los Angeles Unified School District. The case was filed in the California courts just months after the California Supreme Court, in Jackson v. Pasadena City School District, 59 Cal.2d 876, 31 Cal.Rptr. 606, 382 P.2d 878 (1963), held that school boards in the state were under a state constitutional obligation to take reasonable steps to alleviate racial segregation in the schools, regardless of whether the segregation was de facto or de jure in nature. The case went to trial in 1968 under a stipulation that permitted the court to consider activities of the defendants occurring from May 1, 1963 to the time of trial. The trial court rendered its decisioh on May 12, 1970, finding that the District schools were substantially segregated and concluding that this segregation was both de facto and de jure in origin.

On appeal, the California Supreme Court refused to affirm on the basis of the trial court’s conclusion of de jure segregation. Crawford v. Board of Education, 17 Cal.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28 (1976) (Crawford I). Instead, it chose to affirm on the basis of its previous decision in Jackson that the California Constitution imposed a duty upon school boards to take reasonably feasible steps to alleviate segregation in the public schools, regardless of its cause. Id. at 301-02, 130 Cal.Rptr. at 738, 551 P.2d at 42. The court then remanded the cause to the trial court for the development of a reasonably feasible desegregation plan.

On remand, the trial court rejected the largely voluntary desegregation plan submitted by the School District and ordered the implementation of a plan calling for large-scale mandatory pupil reassignment and transportation. The court-ordered plan went into effect in the fall of 1978. In October 1979, the trial court began hearings to determine the constitutional sufficiency of its court-ordered plan. On November 6, 1979, before the hearings could be completed, the voters of California approved Proposition I,¹ an initiative measure which amended the California Constitution to limit the power of state courts to order mandatory pupil reassignment and transportation on the basis of race. In effect, the state courts were forbidden to order those measures except in circumstances where federal courts could do so to remedy violations of the United States Constitution. In addition, Proposition I authorized any court having jurisdiction, upon application by any interested person, to modify existing judgments or decrees containing provisions for mandatory pupil reassignment and transportation, unless such modification would be prohibited by the United States Constitution.

Following passage of Proposition I, the School District applied to the California courts for an order halting mandatory pupil reassignment and transportation in the District. On May 19, 1980, the Superior Court denied the application on the ground that the trial court in Crawford I had found de jure segregation and thus the elimination of mandatory pupil reassignment and transportation in the District would be prohibited by the United States Constitution. The Superior Court thereafter issued a new order on July 7,1980, substantially continuing the 1978 desegregation plan.

The California Court of Appeal reversed and vacated the July 7, 1980, desegregation order. Crawford v. Board of Education, 113 Cal.App.3d 633, 643, 170 Cal.Rptr. 495 (1980) (Crawford II). The appellate court determined that the 1970 findings by the trial court in Crawford I did not support its conclusion of de jure segregation, when viewed in light of subsequent Supreme Court decisions emphasizing the need for showing specific discriminatory intent. Because the Court of Appeal viewed the findings as establishing only de facto segregation in the District schools, it concluded that a federal court would not be authorized under federal law to order pupil assignment and transportation. Consequently, Proposition I barred the state court from doing so. The court thereupon vacated the orders of May 19, 1980, and July 7, 1980, and remanded to the Superior Court “for further proceedings consistent with this opinion.” The California Supreme Court refused review on March 11, 1981, and the case was remitted to the Superior Court on the next day.²

Following the remittitur,³ the District submitted a revised desegregation plan with no mandatory pupil reassignment or mandatory busing. The plan was accepted by the Superior Court, with modifications, on September 10, 1981. On November 25, 1981, the Superior Court awarded plaintiffs attorneys’ fees and costs and, declaring that the “underlying issues have been resolved,” terminated jurisdiction. The Crawford plaintiffs appealed the September 10, 1981 order but dropped their appeal on May 24,1983, thus closing the last chapter of the Crawford litigation.⁴

The NAACP filed the present case while Crawford was still pending in the California Superior Court following the remittitur from Crawford II. The district court refused to give res judicata effect to the Crawford litigation because it determined that no final judgment had yet been entered in that case and that retrial of the de jure issue on remand had not been foreclosed by the appellate court’s remittitur.⁵ A three-judge panel of this court reversed the district court on the ground that the Crawford judgment had since become final and that therefore relitigation of the claim that the District was segregated de jure on or before September 10, 1981, was barred by the doctrines of res judicata and collateral estoppel.⁶ We granted the NAACP’s petition for rehearing en banc and withdrew the opinion of the three-judge panel.⁷ Because we agree that relitigation of the de jure claim is barred by the doctrine of res judicata, we reverse the order of the district court. We determine the bar, however, to apply only to events occurring on or before May 2, 1969.

II.

Res Judicata

The state court judgment in the Crawford litigation is entitled to the same preclusive effect in this court as it would be accorded in a California court, whether the effect is one of claim preclusion or issue preclusion. 28 U.S.C. § 1738; Migra v. Warren City School District Board of Education, - U.S. -, 104 S.Ct. 892, 896-98, 79 L.Ed.2d 56 (1984). Under California law, the claim preclusion aspect of res judicata, also referred to as bar or merger, precludes the maintenance of a second suit between the same parties on the same cause of action so long as the first suit concluded in a final judgment on the merits. Agarwal v. Johnson, 25 Cal.3d 932, 954, 160 Cal.Rptr. 141, 155, 603 P.2d 58, 72 (1979); Slater v. Blackwood, 15 Cal.3d 791, 795, 126 Cal.Rptr. 225, 226, 543 P.2d 593, 594 (1975). All issues that were litigated or that might have been litigated as part of the cause of action are barred. Olwell v. Hopkins, 28 Cal.2d 147, 152, 168 P.2d 972, 975 (1946). The parties no longer dispute that there is now a final judgment on the merits in Crawford. We therefore turn our attention to the more complex problem of determining whether this action involves the same cause of action and the same parties as Crawford.

A.

Identity of Claims

The plaintiffs argue that the claim sued upon in this action is not the same as that in Crawford. They contend that the Crawford plaintiffs sued for violation of a right arising under the state constitution — the right to be free of de facto segregation. Plaintiffs assert that here they are suing for violation of a right arising under the Federal Constitution — the right to be free of de jure segregation. There are at least two major flaws in plaintiffs’ argument.

First, the record in Crawford simply does not support the contention that plaintiffs there confined their claim to de facto segregation in violation of state law. The Crawford plaintiffs pleaded violations of the Fourteenth Amendment. They successfully moved the state court to be allowed to show bad faith on the part of the School District in maintaining segregation in the schools, injecting the element of defendants’ intent into the trial. The findings and conclusions of the state trial judge directly addressed de jure segregation as a violation of the Federal Constitution. It is true that the California Supreme Court in Crawford I chose not to rely on the de jure findings, but that fact did not permanently remove the de jure issue from the case. When the School District moved to modify the desegregation plan after the passage of Proposition I, the Crawford plaintiffs responded in a memorandum of April 23, 1980, to the state trial court: “In Crawford, the Court heard and decided the Fourteenth Amendment issues and defense, and found de jure segregation. The violations and defense were pleaded, argued, and decided. They cannot now be relitigated by invasion of the final judgment.” Thereafter, the California Court of Appeal addressed the de jure issue and held that the trial court’s 1970 findings did not support a conclusion of de jure segregation. 113 Cal.App.3d at 645-46, 170 Cal.Rptr. at 503-04. The de jure issue had to be addressed at that time in order to determine the effect of Proposition I on the existing desegregation plan that included mandatory pupil reassignment and transportation. In view of this record, it is not possible to accept the contention of plaintiffs here that the Crawford litigation had nothing to do with de jure segregation in violation of the United States Constitution.

The second major flaw in plaintiffs’ argument is that it misconceives the scope of a cause of action under California law. As plaintiffs correctly point out, California follows the “primary rights” theory, under which the right sought to be enforced determines the cause of action. See 3 Witkin, California Procedure, Pleadings § 22 (1971). The invasion of more than one primary right gives rise to as many causes of action as rights violated, even though all may arise from a single set of facts. See, e.g., Sawyer v. First City Financial Corp., 124 Cal.App.3d 390, 399, 177 Cal.Rptr. 398, 403 (1981). California’s rule, however, does not mean that different causes of action are involved just because relief may be obtained under either state or federal law, or under either of two legal theories. See Boccardo v. Safeway Stores, Inc., 134 Cal.App.3d 1037, 1043, 1054, 184 Cal.Rptr. 903, 907, 914 (1982); City of Los Angeles v. Superior Court, 85 Cal.App.3d 143, 150, , 149 Cal.Rptr. 320, 325 (1978). Two recent California cases illustrate the distinction. In Mattson v. City of Costa Mesa, 106 Cal.App.3d 441, 447, 164 Cal.Rptr. 913, 917 (1980), the plaintiff had previously brought a federal civil rights action alleging assault and wrongful arrest. He then brought an action in state court alleging that the same conduct constituted the common law tort of negligence. The California Court of Appeal held that the second action was barred because both actions sought redress for injury to plaintiffs interest in personal security and integrity. To be contrasted with Mattson is Agarwal v. Johnson, 25 Cal.3d 932, 954, 160 Cal.Rptr. 141, 155, 603 P.2d 58, 72 (1979). There plaintiff first brought suit in federal court for employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. He subsequently was permitted to sue his employer in state court for the common law torts of defamation and intentional infliction of emotional distress arising out of the same discriminatory employment practice. The California Supreme Court held that the federal action was brought to remedy the economic loss in wages, while the state action was brought to redress injuries to the different interests in reputation and peace of mind. As both Mattson and Agarwal indicate, the single most important factor in determining whether a single course of conduct has violated more than one primary right is whether plaintiff suffered injury to more than one interest. See also Ford Motor Co. v. Superior Court, 35 Cal.App.3d 676, 679, 110 Cal.Rptr. 59, 61 (1973).

In light of these decisions, we are unable to accept plaintiffs’ contention that they are attempting to enforce a different primary right than were the plaintiffs in Crawford. We would adhere to that conclusion even if the Crawford litigation had been confined to de facto segregation in violation of state law. The right to be free from de facto segregation is not a thing apart from the right to be free from de jure segregation; the former necessarily encompasses the latter. The California Supreme Court in Crawford I held that school boards had an affirmative duty to take reasonable steps to eliminate both de facto and de jure segregation. 17 Cal.3d at 301-02, 130 Cal.Rptr. at 738, 551 P.2d at 42. That duty survived Proposition I. Crawford II, 113 Cal.App.3d at 655, 170 Cal.Rptr. at 510. The California Supreme Court clearly regarded the injury from both kinds of segregation to be the same: “[TJhere is virtually no dispute that the practical effect of segregated schooling on minority children does not depend upon whether a court finds the segregation de jure or de facto in nature; the isolation and debilitating effects do not vary with the source of the segregation.” Crawford I, 17 Cal.3d at 301, 130 Cal.Rptr. at 737-38, 551 P.2d at 41-42. See also Keyes v. School District No. 1, 413 U.S. 189, 229-30 & n. 14, 93 S.Ct. 2686, 2707-08 & n. 14, 37 L.Ed.2d 548 (1973) (Powell, J., concurring). We can only conclude that California regards the primary right underlying de jure and de facto claims to be one and the same — “the right to an equal opportunity for education.”⁸ Crawford I, 17 Cal.3d at 305, 130 Cal.Rptr. at 740, 551 P.2d at 44. See also Crawford II, 113 Cal.App.3d at 649, 170 Cal.Rptr. at 506. Since the primary right enforced in Crawford was the same as the primary right asserted in this litigation, the present action is barred as to all matters that might have been litigated by the same parties in Crawford.

Our conclusion that the same primary right is involved also puts to rest the contention that the federal claim is not barred because the federal right is narrower than the state right. It is true that federal law does not place school boards under a duty to alleviate de facto segregation. See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 435-36, 96 S.Ct. 2697, 2704-05, 49 L.Ed.2d 599 (1976); Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). The right to desegregate is therefore greater under California law than under the Federal Constitution, as the Supreme Court observed in Crawford v. Board of Education, 458 U.S. 527, 535, 102 S.Ct. 3211, 3216, 73 L.Ed.2d 948 (1982). But the doctrine of res judicata, in California as elsewhere, not only bars the maintenance of the identical cause of action in a subsequent suit by the same parties. It also bars the maintenance of a subsequent action on any part of the original cause of action, even if that part was not litigated in the prior action. Restatement of Judgments § 62 (1942), cited with approval in Mattson v. City of Costa Mesa, 106 Cal.App.3d at 449, 164 Cal.Rptr. at 918. Similarly, a plaintiff with a claim supported by both state and federal law may not bring separate actions on each ground; the first action precludes the second if the first court had jurisdiction to adjudicate both grounds. Migra v. Warren City School District Board of Education, 104 S.Ct. at 898; Restatement (Second) of Judgments § 61.1 comment e (1982).

Res judicata claim preclusion does not, of course, bar plaintiffs from litigating matters that were not within the scope of the claim litigated in Crawford. The Crawford claim necessarily included all segregative acts of the District occurring prior to commencement of the Crawford litigation in August 1963. See Restatement (Second) of Judgments § 24, comment d, § 26, comment h (1980). The stipulation of the parties, accepted by the trial court, extended the scope of the claim to cover the period from 1963 to the time of trial. The trial court considered the effects of School District inaction up to the end of the trial, and the California Supreme Court in affirming in Crawford I, characterized the trial court’s findings and conclusions as covering the “relevant time period — which ran through the conclusion of the trial in May 1969.” 17 Cal.3d at 288, 130 Cal.Rptr. at 728, 551 P.2d at 32. We conclude, therefore, that segregative acts occurring before the close of the Crawford trial of the merits on May 2, 1969 fall within the bar of res judicata.

It has been argued, and the three judge panel of this court held, that the bar of the Crawford litigation must extend to all segregative acts occurring prior to September 10, 1981, the date that trial court terminated the litigation on the merits and discharged the writ of mandate. We reject that position. The scope of litigation is framed by the complaint at the time it is filed. The rule that a judgment is conclusive as to every matter that might have been litigated “does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated.” Kettelle v. Kettelle, 110 Cal.App. 310, 312, 294 P. 453, 454 (1930); see Lord v. Garland, 27 Cal.2d 840, 849, 168 P.2d 5, 11 (1946); Brown v. Brown, 170 Cal. 1, 4, 147 P. 1168, 1170 (1915); Metropolis Trust & Savings Bank v. Barnet, 165 Cal. 449, 452-53, 132 P. 833, 834 (1913). Plaintiffs may bring events occurring after the filing of the complaint into the scope of the litigation by filing a supplemental complaint with leave of court, Cal.Civ.Proc.Code § 464, but there is no requirement that plaintiffs do so.⁹ The stipulation of the parties that permitted the court to consider events occurring from 1963 to the time of trial was clearly intended to operate as a supplemental pleading, but it specified that “[t]he rights of petitioners, if any, and the duties of respondent, if any, shall be determined as of the time of trial.” It therefore cannot have extended the durational scope of the litigation past the close of trial of the merits on May 2, 1969 — the date that the California Supreme Court stated to be the end of the period relevant to the trial court’s findings and conclusions.

If the Crawford plaintiffs had actually litigated the liability of the District for segregative acts occurring after May 2, 1969, then the res judicata bar would have to expand to encompass those events and others that might have been litigated with them. The record indicates, however, that the Crawford plaintiffs did not so open the litigation to later events. Judge Gitelson entered his findings and conclusions on May 12, 1970. The California Supreme Court affirmed on June 28, 1976 (Crawford I). The case was then remanded for the adoption and approval of a desegregation plan. All further proceedings were concerned entirely with the appropriateness and legality of various Board plans, before and after passage of Proposition I.

It is true that the Crawford plaintiffs litigated the constitutionality of Proposition I, but that was an argument over remedy, not right. Indeed, the plaintiffs’ memorandum of December 19, 1979, contended that Proposition I was unconstitutional because it retroactively deprived plaintiffs of the benefits of the 1970 findings and mandate, which they contended were res judicata.

The decision in Crawford II on December 19, 1980, was entirely a review of the 1970 findings and conclusions. It did not purport to deal with any school board actions subsequent to that time. After the remittitur, plaintiffs contended in the trial court that the Board resolution of March 16, 1981, was unconstitutional, by its own force and because it violated the mandates of Crawford I and II. The unconstitutionality of the Board resolution was urged not as a new source of liability, but as a ground for holding the Board’s plan to be improper as relief.

The two final orders in the Crawford litigation drive the point home further. Judge Lopez’ order of September 10, 1981, which ended the litigation on the merits, held that the Board had “satisfied the mandate of the Court issued on May 19, 1970,” as interpreted in Crawford I and II, and accordingly discharged the writ of mandate. In his final order awarding attorneys’ fees and terminating jurisdiction on November 25, 1981, Judge Lopez recited that the case could best be thought of in two parts: the first relating to the “trial of the right of the children to a desegregated education” that ended in a judgment affirmed in 1976, and the second the enforcement of that judgment. “Since 1976, this case has been in the remedy enforcement phase. The sole task before the Court was the supervision of the evolution and adoption of a Plan for desegregation. No rights were at issue.”¹⁰

The Crawford record therefore supports the view that the scope of the claim litigated in that case did not include any segregative acts of the District occurring after May 2, 1969. The claim preclusion bar of Crawford therefore extends only to segregative acts occurring on or before May 2, 1969. Any acts of de jure segregation committed by defendants after that date are not precluded and may be pursued by plaintiffs in this litigation. In such ensuing proceedings, the parties may introduce evidence of events occurring on or before May 2, 1969, so long as it is relevant to a claim of de jure segregative acts committed by defendants after that date. They may not, however, relitigate any claim that the District had committed de jure segregation on or before May 2, 1969. See Bronson v. Board of Education, 525 F.2d 344, 350 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed.2d 175 (1976).

B.

Identity of Parties

A judgment on behalf of a class binds all persons belonging to the class and all those who subsequently come into the class. King v. International Union of Operating Engineers, 114 Cal.App.2d 159, 164-65, 250 P.2d 11, 14 (1952); see Cooper v. Federal Reserve Bank of Richmond, - U.S.-,-,-, 104 S.Ct. 2794, 2798, 2802, 81 L.Ed.2d 718 (1984). The plaintiff class in Crawford consisted of all black and Hispanic children attending school in the Los Angeles Unified School District.¹¹ It is clear from the final order of the state trial court on September 10, 1981, that the class remained open to that date, because the relief encompassed, and was intended to benefit, black and Hispanic children in school on that date.

The class certified in the present action includes all existing and future black students who are or become eligible to attend the District’s schools during the pendency of this action. The present class therefore comprises some members who were also members of the Crawford class and others who were not. The former are clearly bound by Crawford under the traditional application of res judicata; the latter are not. See 3 Witkin, supra, Judgments § 282. California has expanded the traditional rule, however, to apply the preclusive effect of a prior judgment to nonparties whose interests were “virtually represented” by one of the parties to the litigation. See e.g., Rynsburger v. Dairymen’s Fertilizer Corp., 266 Cal.App.2d 269, 278, 72 Cal.Rptr. 102, 107-08 (1968); King v. International Union of Operating Engineers, 114 Cal.App.2d at 164, 250 P.2d at 13. The nonparty is bound under the rule if he was “so far represented by others that his interest received actual and efficient protection.” Rynsburger, 266 Cal.App.2d at 278, 72 Cal.Rptr. at 107; see also Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.1975). The application of this doctrine to desegregation cases is particularly appropriate. It has been recognized that unless subsequent generations of school children are bound by preclusion rules from relitigating identical claims of unlawful segregation, those claims would assume immortality. See, e.g., Bell v. Board of Education, 683 F.2d 963, 966 (6th Cir.1982); Bronson v. Board of Education, 525 F.2d 344, 349 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed.2d 175 (1976).

We see no reason why the California courts would not apply the doctrine of virtual representation here to preclude post-1981 black school children from litigating any part of the cause of action litigated in Crawford. There is no contention by plaintiffs that the Crawford class was inadequately represented. Nor' have they made any showing that the interests of the two classes are different. Although Proposition I limited the remedies available to the state courts for alleviating de facto segregation, it did not alter the substantive right that had been recognized in Jackson and Crawford I. Crawford II, 113 Cal.App.3d at 655-56, 170 Cal.Rptr. at 509-10. The relief granted and the relief available in Crawford would not have changed its character had all the members of the present plaintiff class been parties.

We conclude, therefore, that the California courts would give preclusive effect to the Crawford judgment against all plaintiffs in this case as to any claim of unlawful segregative actions taken by the School District on or before May 2, 1969. We can give Crawford no less effect than California would. 28 U.S.C. § 1738.

III.

Full And Fair Opportunity

It is suggested that although ordinary claim preclusion rules might bar the relitigation of pre-1969 de jure segregation, they should not be applied in this case because to do so would constitute manifest injustice. The injustice that is urged is that there was no full and fair opportunity to litigate the de jure claim in Crawford. There is authority in California for the proposition that a court may refuse to apply res judicata where to do so would defeat the ends of justice. See, e.g., Greenfield v. Mather, 32 Cal.2d 23, 35, 194 P.2d 1, 8 (1948). Although the California Supreme Court has questioned the current validity of the Greenfield rule, it has not expressly overruled it. See Slater v. Blackwood, 15 Cal.3d at 796, 126 Cal.Rptr. at 227, 543 P.2d at 595. The lower California courts have continued to apply the rule, at least where there was no meaningful opportunity to litigate the claim in the prior action. See, e.g., Ruddock v. Ohls, 91 Cal.App.3d 271, 281, 154 Cal.Rptr. 87, 91 (1979); Hight v. Hight, 67 Cal.App.3d 498, 136 Cal.Rptr. 685 (1977). See also Ackerman v. Ackerman, 676 F.2d 898, 905 (2d Cir. 1982) (applying California preclusion law pursuant to 28 U.S.C. § 1738). Whether or not Greenfield remains good law in California,¹² it does not apply in this case because plaintiffs had a full and fair opportunity to litigate their claim in Crawford; giving effect to the Crawford judgment consequently would not cause manifest injustice.

Plaintiffs contend that Jackson v. Pasadena City School District, decided just before the Crawford action was initiated, deprived the Crawford plaintiffs of any incentive to litigate the de jure question. See Ackerman, 675 F.2d at 905 (no meaningful opportunity when plaintiff lacked any incentive to litigate). It is questionable that the Crawford plaintiffs would have read so expansively the dicta in Jackson that “under some circumstances” a student whose school was racially imbalanced solely because of residential segregation would be entitled to relief, and that school boards must take steps “insofar as reasonably feasible” to alleviate racial imbalance regardless of its cause. Jackson, 59 Cal.2d at 881, 882, 31 Cal.Rptr. at 609, 610, 382 P.2d at 881, 882. It is true that these dicta were strengthened and adopted as holding in Crawford I itself, but the plaintiffs could not have been assured of that result in advance. With only Jackson as authority, plaintiffs retained substantial incentive to prove de jure segregation to obtain the most certain and comprehensive relief. That incentive is reflected in plaintiffs’ successful motion to preserve for trial the “bad faith” of the school board in “knowingly, deliberately and intentionally” following a course of action that “had the effect, and continues to have the effect, of maintaining and perpetuating a racially segregated and imbalanced school system.” ER 4, Exh. 5. It is also reflected in the trial court’s findings and conclusions regarding de jure segregation.

Even if we were to assume that the Crawford plaintiffs lacked the incentive fully to litigate the de jure claims prior to the passage of Proposition I, they had both the incentive and the opportunity to develop their case after that point. On November 15, 1979, 9 days after the passage of the Proposition, the Board sought relief from the court’s earlier orders requiring mandatory pupil reassignment and transportation. The Board posed the issues of the effect of the original findings and conclusions and of “[w]hat additional proceedings must occur before this Court can determine whether a violation of the Equal Protection Clause has occurred.” The Board ended its argument with a statement that it wanted a hearing on the de jure issue.

Again on December 4, 1979, the Board stated that new evidence should be taken regarding violations of federal law if the court decided to reject the Board’s all-voluntary plan. Plaintiffs responded on December 19, 1979, relying on the arguments that the 1970 findings were res judicata of de jure segregation, and that Proposition I was unconstitutional retroactive legislation that deprived plaintiffs of their vested rights in the prior judgment. Plaintiffs contended that, until the constitutionality of Proposition I was established, there was no need to discuss the contention that the 1970 findings did not establish a federal constitutional violation. If it became necessary to discuss the Board’s contention after that, then plaintiffs would “ask leave of Court for the opportunity to so do.”

The trial court then ruled that federal constitutional violations had already been established, but the Court of Appeal reversed in Crawford II. We will discuss the exact scope of that decision in a moment. But at the least it held that the 1970 findings did not establish de jure segregation in violation of the Fourteenth Amendment. If that decision was erroneous, the remedy was appeal. The plaintiffs sought review in the Supreme Court of California, which denied review. In opposing review by that Court, the Board argued that the case was in a posture where the trial court could “conduct a hearing on the existence of any 14th Amendment violation and its segregative effects” and could issue an order that would subsequently present the case for complete appellate review.

Upon being denied a hearing by the Supreme Court of California, the Crawford plaintiffs petitioned for certiorari in the Supreme Court of the United States, but only as to the ruling of the Court of Appeal that Proposition I was constitutional. The Supreme Court granted review and upheld Proposition I. Crawford v. Board of Education, 458 U.S. at 527, 102 S.Ct. at 3211.

Meanwhile, the remittitur of the Court of Appeal had been filed on March 12, 1981, one day after the Supreme Court of California denied review. The remittitur recited from the Crawford II judgment of December 19, 1980: “[T]he matter is remanded to the trial court for further proceedings consistent with this opinion. It is not our intent to disrupt the operation of the schools during the present semester. Since our decision will not become final for thirty days, the parties have ample time to take whatever legal action they think desirable prior to the commencement of the next school semester.”

As we read the opinion in Crawford II and the remittitur, they did not foreclose plaintiffs from reopening and further litigating the issue of de jure segregation framed by the pleadings. The remittitur itself refers to additional legal action by the parties. It also requires, however, further “proceedings consistent with” the opinion in Crawford II. Certainly the opinion contains no express direction limiting the nature of proceedings on remand. The question, then, is whether the opinion establishes law of the case that would be inconsistent with a reopening of the de jure issue on remand. See Puritan Leasing Co. v. Superior Court, 76 Cal.App.3d 140, 147-48, 142 Cal.Rptr. 676, 680 (1977); 6 Witkin, supra, Appeal § 556. We think that when the opinion is fairly read as a whole, it does not do so. It is true that at one point the Court of Appeal concludes, in a manner that would appear to preclude further litigation of the issue, that the racial imbalance in the Los Angeles schools that was the subject of Judge Gitelson’s 1970 findings was not de jure in origin.¹³ But we do not read this comment as a conclusion that plaintiffs could not produce evidence that the segregation was de jure; it is only a conclusion that they had not yet done so. The rest of the opinion supports our interpretation. The court merely reviewed the trial court’s findings and held that as a matter of law they did not support the trial judge’s conclusion of de jure segregation as that term was defined by the most recent Supreme Court decisions.¹⁴ Merely because the appellate court found the evidence at the original trial insufficient to support the judgment does not generally foreclose retrial on remand.¹⁵ See 6 Witkin, supra, Appeal § 548. Moreover, if the trial court had any doubt as to the nature of the appellate court’s directions, it had to resolve it in favor of granting the plaintiffs a retrial. Id. at § 552; see also Puritan Leasing, 76 Cal.App.3d at 148, 141 Cal.Rptr. at 680.

We conclude, therefore, that the decision and remittitur in Crawford II did not foreclose further litigation of the issue of de jure segregation in the trial court. Plaintiffs here have not seriously contended otherwise. Indeed, in the district court they argued that the Crawford decision was not final because the remand left the door to further litigation open, a contention that was accepted by the district court. Moreover, the behavior of the Crawford plaintiffs throughout the period following remand, and the behavior of the Board until virtually the closing moment of the litigation, reflected an understanding that the de jure issue was still subject to reopening.

After the remittitur, the defendant Board adopted a resolution ending all mandatory aspects of its previous desegregation plan. Plaintiffs moved the state court on March 26, 1981, to enjoin implementation of that resolution on the ground that it was an affirmative act of intentional segregation in violation of the mandates of Crawford I and II and of orders of the trial court.

On March 31, 1981, the Board filed a memorandum noting the issues remaining for decision after remittitur. It stated that the Board was advised by plaintiffs that plaintiffs wished to initiate proceedings in the trial court to establish that the District had engaged in acts of de jure segregation in violation of the Fourteenth Amendment.

On April 8, 1981, the trial court held a hearing on plaintiffs’ motion for an injunction against implementation of the Board’s resolution of March 16, 1981, ending mandatory desegregation measures. The motion was denied, and plaintiffs appealed to the Court of Appeal.

On April 15, 1981, while that state appeal was pending, plaintiffs filed the present action in federal district court. Plaintiffs sought and obtained a temporary restraining order from the district court restraining the District from implementing its March 16, 1981 resolution. In arguing in favor of the TRO, plaintiffs asked the district court to take judicial notice of the 1970 Crawford state court findings of de jure segregation, contending that those findings left little doubt that plaintiffs would succeed on the merits of their federal de jure claim.

At this point the posture of the two sets of plaintiffs, who are identical for purposes of res judicata, was that they were litigating the constitutionality, in light of the 1970 findings, of the Board’s modification of its desegregation plan — the Board’s resolution of March 16, 1981 — in both state and federal court. There is no rule that prohibits them from doing so. There is a rule, however, that when one of the two courts enters a judgment that becomes final, it will have a preclusive effect on the other proceeding. See Ruben v. City of Los Angeles, 51 Cal.2d 857, 861 n. 1, 337 P.2d 825, 827 n. 1 (1959). Plaintiffs should not be surprised to have that rule invoked here.

This court subsequently vacated the TRO granted by the district court. Los Angeles Unified School District v. United States District Court, 650 F.2d 1004 (1981). Proceedings then continued in state court. On May 4,1981, the Crawford plaintiffs filed a statement of issues that referred to the de jure issue only in a footnote:

Petitioners believe that an appropriate plan can and should be ordered under the existing mandate and provisions of the United States and California Constitutions. Should courts hold otherwise, a hearing in this court to prove de jure liability may become necessary.

That hearing was never requested. In subsequent proceedings the plaintiffs urged the court to implement its own desegregation plan using nonvoluntary approaches of pairing, clustering, adjusting feeder patterns and reorganizing grades. The court adopted the Board’s plan, however, with minor changes. Ultimately all appeals were abandoned and the order of September 10, 1981, terminating the case on the merits became final.

On May 4, 1981, the same day that the plaintiffs had filed their last footnote mention of the possibility of requesting a hearing to prove de jure liability, the Board submitted a memorandum which for the first time took the position that the mandate of Crawford II precluded such a hearing. Obviously, that does not appear to have been the position of the plaintiffs, just as it had previously not been the position of the Board. The plaintiffs nevertheless let the matter of reopening the original de jure ease drop. In addressing the issue of the relief to which they were entitled, plaintiffs had vigorously and fully litigated the issue of whether Proposition I was itself an act of de jure segregation. In further pursuing their relief after the remittitur in Crawford II, they had vigorously litigated the question whether the Board’s resolution of March 16, 1981, abandoning mandatory desegregation measures was an act of de jure segregation. Yet they never attempted to reopen their original de jure claim despite the Board’s repeated earlier suggestions and their own stated awareness of the possibility.

Plaintiffs may have foregone their opportunity in Crawford because they hoped to accomplish their goals by urging other desegregation approaches on the state court. Or they may have chosen to pursue their original de jure claim in a federal forum that they perceived as being more receptive. The record contains some support for either surmise, but it makes no difference. The de jure issue was originally litigated; it could have been reopened in a later stage of the proceedings when the incentive to pursue it was greater. Plaintiffs cannot simply move to federal court and start anew. See Allen v. McCurry, 449 U.S. 90, 104-05, 101 S.Ct. 411, 420-21, 66 L.Ed.2d 308 (1980).

There is no manifest injustice in denying plaintiffs the opportunity to relitigate a part of a claim when they had a previous opportunity to do so but elected against it. Stuart v. Real Estate, 148 Cal.App.3d 1, 195 Cal.Rptr. 524, 526 (1983). The opportunities plaintiffs were afforded in the state proceedings both before and after the passage of Proposition I amply satisfy the requirements of due process. There is accordingly no constitutional barrier to our giving full faith and credit to the Crawford judgment. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 480-82, 102 S.Ct. 1883, 1896-98, 72 L.Ed.2d 262 (1982). Nor, finally, has there been any change in the basic federal law of de jure segregation that would justify relaxation of the rule of claim preclusion. See Bronson v. Board of Education, 687 F.2d 836, 841 (6th Cir.1982). There most certainly has been no change since Crawford closed.¹⁶

IV

CONCLUSION

The order of the district court denying claim preclusive effect to the Crawford judgment is REVERSED.¹⁷ The case is REMANDED to the district court for further proceedings consistent with this opinion.

1 . Proposition I amended art. 1, § 7(a) of the California Constitution which now provides, in relevant part:

(a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; provided, that nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligation or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation. In enforcing this subdivision or any other provision of this Constitution, no court of this state may impose upon the State of California or any other public entity, board or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution.

Except as may be precluded by the Constitution of the United States, every existing judgment, decree, writ, or other order of a court of this state, whenever rendered, which includes provisions regarding pupil school assignment or pupil transportation, or which requires a plan including any such provisions shall, upon application to a court having jurisdiction by any interested person, be modified to conform to the provisions of this subdivision as amended, as applied to the facts which exist at the time of such modification.

2 . The United States Supreme Court granted certiorari limited to the question of the constitutionality of Proposition I. See Crawford v. Board of Education, 458 U.S. 527, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982). The plaintiffs did not seek review of the Court of Appeal's conclusion that de jure segregation had not been proved.

3 . In California, the term “remittitur” refers to the mandate of the appellate court. Remittitur has the effect of transferring jurisdiction to the trial court. 6 Witkin, California Procedure, Appeal Part I, §§ 516-518 (1971).

4 . Crawford v. Board of Education, No.2d Civil 67706 (Cal.Ct.App. May 24, 1983). The District appealed the November 25, 1981 award of attorneys' fees. That appeal has since been dismissed pursuant to a stipulated order entered April 16, 1984. Therefore, all issues arising out of the Crawford proceedings have now been finally resolved.

5 . Los Angeles Branch NAACP v. Los Angeles Unified School District, 518 F.Supp. 1053 (C.D.Cal. 1981).

6 . Los Angeles Unified School District v. Los Angeles Branch NAACP, 714 F.2d 935 (9th Cir. 1983).

7 . 725 F.2d 1257 (9th Cir.1984).

8 . The distinction between de facto and de jure segregation is not unlike that between intentional torts and those involving negligence or strict liability. In each case, the difference consists only in the nature of the defendant’s state of mind, and not in the nature of the harm suffered by the plaintiff. It is for this reason that the "primary rights” theory recognizes only one cause of action for a single personal injury regardless of whether defendants’ liability might be grounded on several tort theories. See, e.g., Slater v. Blackwood, 15 Cal.3d at 791, 126 Cal.Rptr. at 225, 543 P.2d at 594-95; Panos v. Great Western Packing Co., 21 Cal.2d 636, 134 P.2d 242 (1943). By analogy, the same principle is applicable here.

9 . In equity, a court in fashioning its decree may take into account facts occurring after the filing of the complaint, and no supplemental pleading is required. Collins v. Sargent, 89 Cal.App. 107, 112-113, 264 P. 776, 779 (1928). While that rule may often accomplish the purpose of avoiding ’ further litigation, we view its primary function as one of insuring realistic relief. See note 10, infra. We have been referred to no cases where the rule was extended to bar subsequent litigation of claims that arose during previous litigation but were not made the subject of supplemental pleadings. We decline to impose a potentially unworkable requirement that every claim arising prior to entry of a final decree must be brought into the pending litigation or lost.

10 . Proposition I is framed as a limitation upon remedy. For that reason, we do not accept the view put forth in Judge Sneed’s partial dissent that Proposition I caused the entire factual case on liability to be reopened and supplemented upon the Board’s post-Proposition application to modify the original decree. Any desegregation decree, original or modified, must take current facts into account to insure that the decree is properly tailored to remedy the violation of right that was pleaded and proved. That is the sense in which we read the requirement of Proposition I that decrees be modified to conform to the Proposition "as applied to the facts which exist at the time of the modification.” It is apparent from the remarks of Judge Lopez quoted above that he held a similarly limited view of the purpose of the post-Proposition I proceeding.

11 . The class in Crawford was never formally certified. No procedure for such certification existed in California prior to 1973. The California courts treated Crawford as a class action throughout, see Crawford I, 17 Cal.3d at 286, 551 P.2d at 31, 130 Cal.Rptr. at 727; Crawford II, 113 Cal.App.3d at 647-50; 70 Cal.Rptr. at 504-06. We therefore treat it as a class action for purposes of res judicata. See Jackson v. Hayakawa, 605 F.2d 1121, 1126 & n. 7 (9th Cir.1979), cert. denied, 445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980); see also Johnson v. General Motors Corp., 598 F.2d 432, 434-35 (5th Cir. 1979).

12 . For cases since Slater finding the rule inapplicable, see, e.g., Fehlhaber v. Fehlhaber, 702 F.2d 81 (5th Cir.), cert. denied, - U.S.-, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983); Stuart v. Real Estate, 148 Cal.App.3d 1, 195 Cal.Rptr. 524 (1983); Fellers v. Fellers, 125 Cal.App.3d 254, 178 Cal.Rptr. 35 (1981).

13 . "From the foregoing recital of the cause and of the United States Supreme Court desegregation decisions we conclude that the racial imbalance and segregation which existed in many schools in the District and the Board's actions in relation thereto did not constitute a violation of the Fourteenth Amendment as interpreted by the United States Supreme Court in that racial imbalance and segregation did not result from Board acts performed with segregative intent and discriminatory purpose.” Crawford II, 113 Cal.App.3d at 650, 170 Cal.Rptr. at 506.

14 . “In sum, no federal violation of law was established by the 1970 findings, and the trial court's identification of the then existing racial segregation within the Los Angeles school system as de jure segregation was true only in a Pickwickian sense, and was not true at all in the sense of federal law. Because there was no evidence of acts done with specific segregative intent and discriminatory purpose, there was no federal constitutional violation — regardless of the terminology of the court." Crawford II, 113 Cal.App.3d at 647, 170 Cal.Rptr. at 504. See generally id. at 645-47, 170 Cal.Rptr. at 503-04.

15 . Such a finding does have some significance, however. If, for example, there were a retrial and the evidence at the retrial was substantially the same as that at the original trial, the former decision would be the law of the case. Stromer v. Browning, 268 Cal.App.2d 513, 521, 74 Cal. Rptr. 155, 160 (1968).

16 . Under California law a change in the law following the original judgment is not a ground justifying relief from the doctrine of res judicata. Slater v. Blackwood, 15 Cal.3d at 796, 126 Cal.Rptr. at 227, 543 P.2d at 595.

17 . Because we conclude that plaintiffs are barred by the claim preclusive effects of the Crawford judgment, we do not reach any issues of collateral estoppel (issue preclusion).