Khosrow Kamali v. John Hiddleson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KHOSROW KAMALI, an individual, No. 20-55520
Plaintiff-Appellant, D.C. No.
8:19-cv-01949-JVS-ADS
v.
JOHN CHRISTOPHER HIDDLESON, in MEMORANDUM*
his official capacity as Assistant Chief Legal
Counsel for California Department of
Transportation District 7, and in his personal
capacity; et al.,
Defendants-Appellees,
and
SHIRLEY CHOATE, in her official capacity
as Chief Deputy Director for California
Department of Transportation District 7, and
in her personal capacity; et al.,
Defendants.
KHOSROW KAMALI, an individual, No. 20-55526
Plaintiff-Appellant, D.C. No.
8:19-cv-00238-JVS-ADS
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
LAURIE BERMAN, in her official capacity
as Director of the California Department of
Transportation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted May 6, 2021
Pasadena, California
Before: WARDLAW, GOULD, Circuit Judges, and DONATO,** District Judge.
Khosrow Kamali appeals the district court’s dismissal of his claims under 42
U.S.C. § 1983 alleging that the California Department of Transportation
(“Caltrans”), through its employees (collectively, “Defendants”), violated Kamali’s
First and Fourteenth Amendment rights. Specifically, Kamali, himself a former
employee, alleges that Defendants barred him from accessing certain employee-
only sections of a Caltrans building on two occasions in October 2017 in retaliation
for his prior successful lawsuit against the agency. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
This is not the first lawsuit Kamali has brought based on his alleged
exclusions from certain sections of Caltrans’s building. Kamali first sued Caltrans
**
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
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in Los Angeles County Superior Court on March 1, 2018, for the same conduct,
alleging that Caltrans violated the Unruh Civil Rights Act (“Unruh Act”),
intentionally inflicted emotional distress, and negligently inflicted emotional
distress. Kamali later voluntarily dismissed his emotional distress claims, and the
Superior Court ultimately dismissed his Unruh Act claim in late 2018.
Subsequently, in October of 2019, Kamali filed the instant action against
Defendants in the Central District of California, this time alleging that Defendants
violated his First and Fourteenth Amendment rights based on the October 2017
exclusions. Specifically, Kamali alleged that Caltrans unlawfully excluded him in
retaliation for exercising his right to free speech as expressed in his prior lawsuits
and his advocacy for other Caltrans employees. The district court granted
Defendants’ motions to dismiss, concluding that Kamali’s federal claims were
barred by the doctrine of res judicata.
1. We agree that Kamali’s federal claims are precluded by res judicata.
We look to California law when considering the preclusive effect of a California
state court judgment. See 28 U.S.C. § 1738. Under California law, res judicata
bars claims in a subsequent proceeding if “(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
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the prior proceeding.” People v. Barragan, 32 Cal. 4th 236, 253 (2004) (citation
omitted). To determine whether a claim is “identical,” California’s res judicata
doctrine rests on the “primary right theory,” which posits that “a cause of action is
comprised of (1) a ‘primary right’ of the plaintiff; (2) a primary duty of the
defendant; and (3) a wrongful act by the defendant constituting a breach of that
duty.” See Franceschi v. Franchise Tax Bd., 1 Cal. App. 5th 247, 257–58 (2016)
(cleaned up).
Here, Kamali’s federal claims are “identical” to his state court claims. Id. at
257. In both actions, Kamali asserts (1) the same primary right, the right to be free
from improper retaliation for engaging in protected activity, i.e., filing lawsuits or
otherwise advocating against Caltrans; (2) based on the same primary harm, i.e.,
his exclusions from sections of the Caltrans building on the same two days in
October of 2017; and (3) were allegedly inflicted by the same actors, Caltrans
employees. Thus, Kamali “has merely presented a new legal theory upon which
[]he seeks recovery.” Takahashi v. Bd. of Trs. of Livingston Union Sch. Dist., 783
F.2d 848, 851 (9th Cir. 1986) (citation omitted); see Boeken v. Philip Morris USA,
Inc., 48 Cal. 4th 788, 797 (2010) (“The cause of action is the right to obtain redress
for a harm suffered, regardless of . . . the legal theory advanced.”).
No new and continuing facts support Kamali’s new federal claims. Because
Defendants’ alleged exclusionary order against Kamali has not changed since the
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state court judgment, it is merely an unchanged, continuing harm that is
insufficient to revive Kamali’s claims. See Clark v. Yosemite Comm. College
Dist., 785 F.2d 781, 789 (9th Cir. 1986).
2. The district court did not err in finding that John Hiddleson is in
privity with Caltrans. “Privity requires the sharing of an identity or community of
interest, with adequate representation of that interest in the first suit.” DKN
Holdings LLC v. Faerber, 61 Cal. 4th 813, 826 (2015) (internal quotation marks
omitted). “Privity has expanded over the years” such that privity “deals with a
person’s relationship to the subject matter of the litigation.” Castillo v. Glenair,
Inc., 23 Cal. App. 5th 262, 279 (2018), as modified on denial of reh’g (May 14,
2018) (cleaned up). Hiddleson is (and was at all relevant times) employed by and
shares substantial interests with Caltrans, the prior defendant in Kamali’s state
court action, including the same community of interest in the outcome of the
litigation. See, e.g., Castillo, 23 Cal. App. 5th at 279–80.
3. The district court did not err in finding that Brian Gray’s actions were
not attributable to Caltrans or the State of California because Gray’s conduct fails
to constitute “state action” under either “the public function test” or “the joint
action test” asserted by Kamali. Franklin v. Fox, 312 F.3d 423, 445 (9th Cir.
2002). First, under the public function test, Gray’s functions as a private security
guard were not “both traditionally and exclusively governmental.” Lee v. Katz, 276
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F.3d 550, 555 (9th Cir. 2002) (emphasis added) (citation omitted). Second, under
the joint action test, Kamali makes only the conclusory allegation that Gray
implemented Caltrans’s exclusionary order without alleging any specific actions
taken by Gray to that end—a far cry from the “substantial degree of cooperation”
we have required to satisfy this test. Franklin, 312 F.3d at 445.
4. Lastly, the district court did not err in denying Kamali further leave to
amend because “any amendment would be an exercise in futility.” Steckman v.
Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998).
AFFIRMED.
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