Richard Herbert v. Cvs Pharmacy , 700 F. App'x 698 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD HERBERT, No. 16-56063
Plaintiff-Appellant, D.C. No. 2:15-cv-04680-SVW-JEM
v.
MEMORANDUM*
CVS PHARMACY, doing business as
Garfield Beach CVS LLC; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
Richard Herbert appeals pro se from the district court’s summary judgment
in his action alleging discrimination under 42 U.S.C. § 1981 and state law. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
summary judgment on the basis of res judicata. City of Martinez v. Texaco
*
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).
Trading & Transp., Inc., 353 F.3d 758, 761 (9th Cir. 2003). We affirm.
The district court properly granted summary judgment because Herbert’s
prior small claims action was based on the same primary right, there was a final
judgment on the merits, and the parties are in privity. See id. at 762 (elements of
res judicata under California law); see also Allstate Ins. Co. v. Mel Rapton, Inc., 92
Cal. Rptr. 2d 151, 155 (Ct. App. 2000) (under California law, a small claims court
judgment precludes further litigation on the same claim).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
2 16-56063