NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS A. LAWELLIN, an individual No. 16-56181
and STEVEN ROHLIN, an individual,
D.C. No.
Plaintiffs-Appellants, 5:13-cv-00731-JAK-SP
v.
MEMORANDUM*
THE CITY OF INDIAN WELLS, a
Municipal Corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted February 7, 2018
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and BATAILLON,**
District Judge.
Douglas Lawellin and Stephen Rohlin (“Landowners”) appeal the district
court’s dismissal of their civil rights action as barred by collateral estoppel and/or
res judicata. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
1. We review de novo a dismissal under Federal Rule of Civil Procedure
12(b)(6) on the basis of res judicata. Manufactured Home Cmtys. Inc. v. City of
San Jose, 420 F.3d 1022, 1025 (9th Cir. 2005). “To determine the preclusive
effect of a state court judgment federal courts look to state law. California’s res
judicata doctrine is based on a primary rights theory.” Id. at 1031 (internal
citation omitted). “[I]f two actions involve the same injury to the plaintiff and the
same wrong by the defendant, then the same primary right is at stake even if in the
second suit the plaintiff pleads different theories of recovery, seeks different forms
of relief and/or adds new facts supporting recovery.” Brodheim v. Cry, 584 F.3d
1262, 1268 (9th Cir. 2009) (quoting Eichman v. Fotomat Corp., 197 Cal. Rptr.
612, 614 (Ct. App. 1983)).
2. The district court properly dismissed the Landowners’ equal
protection challenge to the hedge-height ordinance as barred by the doctrine of
claim preclusion because the claim was based on the same primary right—
enforceability of the ordinance—at issue in the prior state court nuisance
abatement action. See Furnace v. Giurbino, 838 F.3d 1019, 1025 (9th Cir. 2016),
cert. denied, 137 S. Ct. 2195 (2017) (affirming dismissal on claim preclusion
grounds where a challenge involved “the same actions by the same group of
officials at the same time that resulted in the same harm” (internal quotation marks
omitted)).
2 16-56181
Appellants’ motion to take judicial notice, docket 30, is granted.
AFFIRMED.
3 16-56181