Cumbre, Inc. v. State Compensation Insurance Fund

FILED
NOT FOR PUBLICATION NOV 17 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

CUMBRE, INC.; COACHELLA No. 09-17190
VALLEY INSURANCE SERVICE, INC.,
D.C. No. 4:09-cv-02706-CW
Plaintiffs - Appellants,

v. MEMORANDUM *

STATE COMPENSATION INSURANCE
FUND,

Defendant - Appellee.

Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding

Submitted November 5, 2010 **
San Francisco, California

Before: HALL and THOMAS, Circuit Judges, and RESTANI, Judge.***

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.
 The district court correctly concluded that claim preclusion bars the claims

brought by Cumbre, Inc. and Coachella Valley Ins. Co. (collectively, “Cumbre”).

Claim preclusion “bars any subsequent suit on claims that were raised or could

have been raised in a prior action.” Cell Therapeutics, Inc. v. Lash Group, Inc.,

586 F.3d 1204, 1212 (9th Cir. 2009).

Cumbre’s present suit alleges the same primary right violation that Cumbre

alleged in state court. The final decision by the California Court of Appeals

conclusively rejecting that claim is res judicata as to the identical federal claim

asserted in this case under 42 U.S.C. § 1983. Brodheim v. Cry, 584 F.3d 1262,

1268 (9th Cir. 2009) (“Under 28 U.S.C. § 1738, federal courts are required to give

state court judgments the preclusive effects they would be given by another court

of that state.”).

Cumbre argues for application of Furey v. City of Sacramento, 780 F.2d

1448 (9th Cir. 1986), abrogated on other grounds as recognized by Schnuck v. City

of Santa Monica, 935 F.2d 171, 173 (9th Cir. 1991), but that reliance is misplaced.

Under California law, the issuance of a remittitur by the court of appeal indicates

that the state appellate process has been concluded. Kay v. City of Rancho Palos

Verdes, 504 F.3d 803, 808 (9th Cir. 2007).

AFFIRMED.

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