John J. Flynn, and v. State Board of Chiropractic Examiners, Earl E. Pope, Executive Secretary, and Does I Through V, Inclusive, And ( 1969 )

418 F.2d 668

John J. FLYNN, Plaintiff and Appellant,
v.
STATE BOARD OF CHIROPRACTIC EXAMINERS, Earl E. Pope, Executive Secretary, and Does I through V, inclusive, Defendants and Appellees.

No. 23807.

United States Court of Appeals Ninth Circuit.

November 24, 1969.

Melvyn Stein (argued), and Harry Ellman, of Ellman & Stein, San Diego, California, for appellant.

William L. Zessar (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., San Diego, Cal., for appellees.

Before HUFSTEDLER and TRASK, Circuit Judges, and PLUMMER,* District Judge.

PER CURIAM:

1

The District Court properly dismissed appellant's action on the ground that it was barred by res judicata.

2

Appellant's complaint sought an injunction to prevent enforcement of appellees' order suspending his California chiropractic license, claiming that the order violated his federal constitutional rights. His suit is foreclosed by a final judgment on the merits rendered by a California court with jurisdiction of the cause upholding the validity of appellees' order. It is immaterial whether or not the constitutional issues were actually litigated in appellant's state court action, because we are here concerned with the application of that branch of the res judicata doctrine known as bar and not with the branch called collateral estoppel. "A final judgment on the merits between parties who in law are the same operates as a bar to a subsequent action upon the same cause of action, settling not only every issue that was raised, but also every issue that might have been raised in the first action." Olwell v. Hopkins (1946) 28 Cal. 2d 147, 152, 168 P.2d 972. (Accord: Parker v. Westover (9th Cir. 1955) 221 F.2d 603; Lester v. National Broadcasting Co., Inc. (9th Cir. 1954) 217 F.2d 399, cert. denied (1955) 348 U.S. 954, 75 S. Ct. 444, 99 L. Ed. 746.) Appellant's state and federal actions are based on the same claimed wrong, suspension of his license, and the parties to both are identical. Appellant is not permitted to fragment a single cause of action and to litigate piecemeal the issues which could have been resolved in one action.

3

The judgment is affirmed.

Notes:

*

Hon. Raymond E. Plummer, Chief Judge, United States District Court, Anchorage, Alaska, sitting by designation