What is considered a "litigated issue" in a personal injury case?
The following excerpt is from Tomasi v. Savannah N. Denoce Trust (In re Tomasi), Adv. No. 10-144 6-MT, BAP No. CC-12-1401-KiTaD, Bk. No. 10-16174-MT (B.A.P. 9th Cir. 2013):
"[A]n issue is 'actually litigated' when it is properly raised by a party's pleadings or otherwise, when it is submitted to the court for determination, and when the court actually determines the issue." In re Harmon, 250 F.3d at 1247 (citing People v. Sims, 32 Cal.3d 468 (Cal. 1982)). However, even if the state court did not make any express findings, it has been held in our circuit that "[a]s a conceptual matter, if an issue was necessarily decided in a prior proceeding, it was actually
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litigated." Id. at 1248.
In California "[t]he five elements required to create an express trust are (1) a competent trustor, (2) trust intent, (3) trust property, (4) trust purpose, and (5) a beneficiary." Keitel v. Heubel, 103 Cal.App.4th 324, 337 (2002)(citation omitted).
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