LAWELLIN v. CITY OF INDIAN WELLS (2018)

MEMORANDUM **

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.

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., 147 Cal.App.3d 1170, 197 Cal.Rptr. 612, 614 (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, ––– U.S. ––––, 137 S.Ct. 2195, 198 L.Ed.2d 262 (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) ).

Appellants’ motion to take judicial notice, docket 30, is granted.

AFFIRMED.