Reuven Rasooly v. G. Tarin , 691 F. App'x 432 ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REUVEN RASOOLY, No. 15-16213
Plaintiff-Appellant, D.C. No. 3:14-cv-04521-JSC
v.
MEMORANDUM*
G. BOYD TARIN; STATE OF
CALIFORNIA; CONTRA COSTA
COUNTY; DEPARTMENT OF CHILD
SUPPORT SERVICES; MELINDA R.
SELF,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Submitted May 16, 2017**
San Francisco, California
Before: CANBY and MURGUIA, Circuit Judges, and RUFE,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Cynthia M. Rufe, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Reuven Rasooly appeals the district court’s dismissal with prejudice of his
42 U.S.C. § 1983 action against the State of California, the California Department
of Child Support Services (“DCSS”), Contra Costa County, and two Contra Costa
County employees, G. Boyd Tarin and Melinda R. Self (collectively,
“Defendants”). We affirm.
1. The district court correctly dismissed Rasooly’s claims against Contra
Costa County, Tarin, and Self under Federal Rule of Civil Procedure 12(b)(6) as
barred by res judicata. Rasooly’s federal action involves the “same cause of
action,” i.e. the same primary right, as his state court suit—a right to recoup
payments alleged to have been wrongly collected by Defendants. See San Diego
Police Officers’ Ass’n v. San Diego City Emps. Ret. Sys., 568 F.3d 725, 734 (9th
Cir. 2009). While Rasooly purports to allege different damages in his Second
Amended Complaint, those additional fees are derivative of Defendants’ initial
collection.
The parties to Rasooly’s federal and state court actions are either the same or
in privity. See Mycogen Corp. v. Monsanto Co., 51 P.3d 297, 301 (Cal. 2002). All
of the Defendants except Self were parties to Rasooly’s suit in state court. Self is
in privity with two parties to the state court litigation: Linda Dippel and Contra
Costa County, Self’s employer. See Citizens for Open Access to Sand & Tide, Inc.
2
v. Seadrift Ass’n, 71 Cal. Rptr. 2d 77, 87 (Ct. App. 1998). Dippel and Self were in
the same legal position as supervisors of Tarin’s actions in the DCSS child support
collection proceeding against Rasooly. See id. at 90 n.12. Contra Costa County, as
Self’s employer, is vicariously liable for actions taken by Self within the scope of
her employment. Cal. Gov. Code § 815.2. Vicarious liability is sufficient to
establish privity here; Self would have been entitled to assert the same
prosecutorial and litigation immunities invoked by the County in the earlier
litigation. See Burdette v. Carrier Corp., 71 Cal. Rptr. 3d 185, 196–98 (Ct. App.
2008). Finally, the circumstances do not warrant an equitable exception to
preclusion. See Jorgensen v. Jorgensen, 193 P.2d 728, 732 (Cal. 1948).
2. The district court dismissed Rasooly’s claims against the State of
California and DCSS as barred by the Eleventh Amendment. Rasooly waived this
issue by failing to address it in his briefing. Armentero v. I.N.S., 412 F.3d 1088,
1095 (9th Cir. 2005).
AFFIRMED.
3