FILED
NOT FOR PUBLICATION
APR 29 2013
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALICIA WOLIN, No. 11-55817
Plaintiff-Appellant, Dist. Ct. No. 2:10-cv-08306-CBM-
PJW
v.
CITY OF LOS ANGELES, a municipality;
WILLIE WILLIAMS, BERNARD MEMORANDUM *
PARKS, WILLIAM J. BRATTON,
JAMES MCDONNELL,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted February 15, 2013
Pasadena, California
Before: BERZON and WATFORD, Circuit Judges, and RAKOFF, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
Alicia Wolin appeals from the district court’s judgment in favor of
defendants in her action alleging that she was denied a promotion to Lieutenant of
the Los Angeles Police Department because of her gender. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Intri-Plex Techs., Inc. v. Crest
Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).
This is Wolin’s second judicial proceeding challenging defendants’ alleged
refusal to promote her to Lieutenant. Wolin previously petitioned the Superior
Court of Los Angeles for a writ of mandate that would have overturned the
administrative determination of the Los Angeles Police Department denying her
claim for a promotion and back pay. After she lost in Superior Court and on appeal
at the Court of Appeal, she brought the instant action alleging that the failure to
promote has violated various state and federal laws. Because we conclude that
Wolin’s claim is barred by the doctrine of res judicata, we affirm the district
court’s judgment.
“It is settled that the doctrine of res judicata applies to judgments on the
merits in proceedings in mandamus.” Hollywood Circle, Inc. v. Dep’t of Alcoholic
Beverage Control, 55 Cal.2d 728, 733 (1961). Moreover, state court judgments
have the same full faith and credit in federal courts as they do in the states in which
they are rendered. Thus, a federal court called upon to determine the preclusive
effect of a state judgment must apply the claim preclusion law of the state in which
2
the original judgment was rendered. Adam Bros. Farming, Inc. v. County of Santa
Barbara, 604 F.3d 1142, 1148 (9th Cir. 2010). Under California law, three
requirements must be met to establish the defense of claim preclusion. The
defendant must prove that “(1)[a] claim or issue raised in the present action is
identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding
resulted in a final judgment on the merits; and (3) the party against whom the
doctrine is being asserted was a party or in privity with a party to the prior
proceeding.” Boeken v. Philip Morris, 230 P.3d 342, 348 (Cal. 2010) (quoting
People v. Barragan, 83 P.3d 480, 492 (2004)).
Under California law, to determine whether two proceedings involve
identical causes of action for the purpose of the claim preclusion analysis, courts
apply the so-called “primary rights” theory. “Under this theory, a cause of action . .
. arises out of an antecedent primary right and corresponding duty[,] and the . . .
breach . . . .” Boeken, 230 P.3d at 348. Furthermore, the most significant
consideration under California’s “primary rights” theory is the harm suffered by
the plaintiff: “[t]he cause of action is the right to obtain redress for a harm suffered,
regardless of the specific remedy sought or the legal theory (common law or
statutory) advanced.” Id.
In the instant case, the district court correctly determined that Wolin’s
actions in state and federal court involve the same “primary right.” In both her
3
federal and state court proceedings, the harm about which Wolin complains is the
defendants’ allegedly wrongful refusal to grant her a promotion. Asserting her
alleged primary right to a promotion under civil rights laws, as opposed to the
consent decree, does not allege a new injury under California’s claim preclusion
law. See Takahashi v. Bd. of Trustees of Livingston Union Sch. Dist., 783 F.2d 848,
851 (9th Cir. 1986).
We have considered Wolin’s remaining arguments and find them to be
without merit.
AFFIRMED.
4
FILED
Wolin v. City of Los Angeles, No. 11-55817 APR 29 2013
MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
I respectfully dissent. The majority’s overall approach to the claim
preclusion effect of a denial of mandamus is consistent with two of our prior cases,
Takahashi v. Board of Trustees of Livingston Union School District, 783 F.2d 848
(9th Cir. 1986), and Manufactured Home Communities Inc. v. City of San Jose, 420
F.3d 1022 (9th Cir. 2005). But it is not consistent with an earlier opinion,
Gallagher v. Frye, 631 F.2d 127 (9th Cir. 1980). California case law after
Gallagher is somewhat murky, but my reading of the California Supreme Court
cases indicates that, were it to address the question, the California Supreme Court
would hold that denials of mandamus can have issue but not claim preclusive
effect as to causes of action sounding in tort, or, by analogy, § 1983 actions. See
Kavanau v. Santa Monica Rent Control Bd., 16 Cal. 4th 761, 779 (1997) (citing
exceptions to the general rule against splitting claims); Westlake Cmty. Hosp. v.
Superior Court, 17 Cal. 3d 465, 484 (1976) (requiring mandamus review prior to
institution of a tort action for denial of medical staff privileges); Hollywood Circle,
Inc. v. Dep’t of Alcoholic Beverage Control, 55 Cal. 2d 728, 733 (1961) (holding
that judgments on the merits in mandamus proceedings have issue preclusive
effect). Thus, if we needed to determine the claim preclusion impact of mandamus
-1-
denials under California law, we would probably have to go en banc to reconcile
Gallagher with Takahashi and Manufactured Home—or, perhaps better, certify the
question, which is a recurring one, to the California Supreme Court.
I would not, however, take that course in this case, as I do not believe there
would be claim preclusive effect even if California’s usual “primary rights” test for
claim preclusion were applicable. It is facile to define the injury Wolin suffered as
the denial of a promotion, and to characterize her claims in the state and federal
proceedings as merely two different theories as to why that denial was wrongful:
first, because it violated the terms of a consent decree, and second, because it
resulted from the employer’s discrimination against Wolin on the basis of her sex.
While, “under the primary rights theory, the determinative factor is the harm
suffered,” Boeken v. Philip Morris USA, Inc., 48 Cal. 4th 788, 798 (2010), the
same wrongful conduct can violate different primary rights, see Le Parc Cmty.
Ass’n v. Workers’ Comp. Appeals Bd., 110 Cal. App. 4th 1161, 1170–72 (2003)
(holding that a claim for workers’ compensation benefits and a tort action for
damages do not involve the same primary right). If we follow the California
Supreme Court’s definition of a “cause of action” as the primary right and the
breach of the corresponding duty, taken together, Boeken, 48 Cal. 4th at 792, then
the causes of action in Wolin’s state and federal court proceedings are not the
-2-
same. In one action, the duty allegedly breached by the LAPD was the duty to
comply with the hiring targets identified in the Hunter-LALEA consent decree; in
the other, it was the duty not to discriminate against an individual employee on the
basis of her sex. Put another way, the harm suffered in the first instance was the
harm of breach of promise, while the harm suffered in the second instance was the
indignity of discrimination.
In Takahashi, the duty at issue in the plaintiff’s state court action subsumed
the duty at issue in her federal action: her mandamus action concerned the
employer’s obligation not to terminate her without cause, while her § 1983 action
concerned the obligation not to terminate her because of her sex and ethnic origin.
783 F.2d at 849. The latter duty is just a more specific obligation within the former
duty, in that an individual’s sex or ethnic origin can never be cause for termination.
Here, however, the settlement agreement allegedly breached ostensibly provided
for promotion of individual women who had never been discriminated against, and
so did not encompass the right to equal protection, which is the basis of Wolin’s §
1983 action.
While the LAPD might not have had an affirmative duty under the Hunter-
LALEA consent decree to promote Wolin on account of her sex, it had a duty not
to deny her a promotion for which she was otherwise qualified on account of her
-3-
sex. These duties are different, as are the primary rights invoked.
Because Wolin alleged the violation of different primary rights in the
mandamus action and in this case, I would reverse the holding to the contrary and
remand the case.
-4-