NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DANIEL CHUNG, an individual, No. 23-16103
Plaintiff-Appellant, D.C. No. 3:21-cv-07583-AMO
v. MEMORANDUM* COUNTY OF SANTA CLARA, a public entity,
Defendant,
and
JEFFREY F. ROSEN, individually,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California Araceli Martinez-Olguin, District Judge, Presiding
Argued and Submitted October 9, 2024 San Francisco, California
Before: H.A. THOMAS and JOHNSTONE, Circuit Judges, and SIMON,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. The district court dismissed all claims asserted by Plaintiff Daniel Chung
(“Chung”) against Defendant County of Santa Clara (“County”). Finding claim
preclusion, the district court also granted summary judgment in favor of Defendant
Jeffrey F. Rosen (“Rosen”) on all claims asserted by Chung against Rosen. Chung
appeals only the district court’s order granting summary judgment in favor of Rosen.
We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and
remand.
“We review the district court’s grant of summary judgment de novo.” Desire,
LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021) (quoting Goodman
v. Staples The Office Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011)). “We will
only affirm if, viewing th[e] evidence in the light most favorable to the nonmoving
party, there are no genuine issues of material fact and the district court correctly
applied the relevant substantive law.” Hamilton v. State Farm Fire & Cas. Co., 270
F.3d 778, 782 (9th Cir. 2001) (citing Balint v. Carson City, 180 F.3d 1047, 1050 (9th
Cir. 1999) (en banc)). “We review the district court’s application of the doctrine of
judicial estoppel to the facts of [a] case for an abuse of discretion.” Kobold v. Good
Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1044 (9th Cir. 2016) (quoting Hamilton,
270 F.3d at 782). We review de novo a district court’s determination that claim
preclusion is available. Miller v. County of Santa Cruz, 39 F.3d 1030, 1032 (9th Cir.
1994) (first citing Guild Wineries & Distilleries v. Whitehall Co., Ltd., 853 F.2d 755,
2 23-16103 758 (9th Cir. 1988); and then citing Plaine v. McCabe, 797 F.2d 713, 718 (9th Cir.
1986)). We also review de novo a district court’s decision that claim preclusion bars
a plaintiff’s claim. NTCH-WA, Inc. v. ZTE Corp., 921 F.3d 1175, 1180 (9th Cir.
2019) (citing Harris v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012)).
Chung is a former Deputy District Attorney (“DDA”) for the County. While
employed as a DDA, Chung sent to a local newspaper an opinion-editorial (the
“Op-Ed”) in which he expressed views about certain criminal justice issues that were
contrary to the positions publicly taken by the County’s District Attorney, Rosen.
After the newspaper published the Op-Ed, Rosen suspended Chung without pay for
ten days for violating County policies, including a prohibition against using one’s
official title to advance political activities without authorization. Chung also alleges
that Rosen took other adverse employment actions against him.
Chung’s union appealed his ten-day suspension to an arbitrator (the
“Arbitrator”). The Arbitrator found that Chung spoke on a matter of public concern
but concluded that the County could permissibly discipline Chung for violating
County policy. The Arbitrator then considered whether just cause existed for the
penalty imposed and, based on mitigating circumstances, reduced Chung’s
suspension from ten days to five. The County petitioned a state trial court to confirm
the arbitration award, and the state trial court granted the County’s petition.
Before the arbitration had concluded, Chung filed his complaint in this case,
3 23-16103 alleging First Amendment retaliation under 42 U.S.C. § 1983. Chung alleged that
Rosen and the County retaliated against him not only by imposing the disciplinary
suspension, but also by visibly reassigning Chung to less prestigious positions and
issuing “be on the lookout” notices about Chung to staff at the District Attorney’s
Office. The County moved to dismiss, the district court granted the County’s motion,
and Chung does not appeal that decision.
After the district court dismissed the County, Rosen moved for summary
judgment, arguing, based on the Arbitrator’s decision, that California’s claim
preclusion doctrine bars Chung’s § 1983 claim. The district court granted Rosen’s
motion. On appeal, Chung challenges three of the district court’s rulings: (1) that
judicial estoppel does not stop Rosen from arguing that claim preclusion bars
Chung’s claim of First Amendment retaliation; (2) that the arbitration satisfies the
prerequisites for that proceeding to be given preclusive effect; and (3) that, for
purposes of claim preclusion under California law, the arbitration involved the same
“cause of action” that Chung asserts in this federal lawsuit.
1. Neither Chung nor Rosen were named parties in the union’s arbitration
against the County, but even if they were, or even if they were in privity with the
named parties, Chung’s judicial estoppel argument fails on the merits under the
framework stated in New Hampshire v. Maine, 532 U.S. 742 (2001). Chung has not
shown that the two arguments at issue are “clearly inconsistent.” Id. at 750. There is
4 23-16103 no inconsistency between: (i) the County’s argument made at arbitration that
Chung’s First Amendment claims should not be adjudicated (or that evidence
relating to those claims should not be permitted) and (ii) Rosen’s argument made to
the district court that the issue was sufficiently adjudicated at arbitration such that
claim preclusion should apply. The district court also did not err in concluding that
the County failed to persuade the Arbitrator to accept its argument that Chung’s First
Amendment claim should not be considered in the arbitration. See id. (citing
Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)). Accordingly, we
affirm the district court’s ruling on judicial estoppel and conclude that Rosen may
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DANIEL CHUNG, an individual, No. 23-16103
Plaintiff-Appellant, D.C. No. 3:21-cv-07583-AMO
v. MEMORANDUM* COUNTY OF SANTA CLARA, a public entity,
Defendant,
and
JEFFREY F. ROSEN, individually,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California Araceli Martinez-Olguin, District Judge, Presiding
Argued and Submitted October 9, 2024 San Francisco, California
Before: H.A. THOMAS and JOHNSTONE, Circuit Judges, and SIMON,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. The district court dismissed all claims asserted by Plaintiff Daniel Chung
(“Chung”) against Defendant County of Santa Clara (“County”). Finding claim
preclusion, the district court also granted summary judgment in favor of Defendant
Jeffrey F. Rosen (“Rosen”) on all claims asserted by Chung against Rosen. Chung
appeals only the district court’s order granting summary judgment in favor of Rosen.
We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and
remand.
“We review the district court’s grant of summary judgment de novo.” Desire,
LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021) (quoting Goodman
v. Staples The Office Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011)). “We will
only affirm if, viewing th[e] evidence in the light most favorable to the nonmoving
party, there are no genuine issues of material fact and the district court correctly
applied the relevant substantive law.” Hamilton v. State Farm Fire & Cas. Co., 270
F.3d 778, 782 (9th Cir. 2001) (citing Balint v. Carson City, 180 F.3d 1047, 1050 (9th
Cir. 1999) (en banc)). “We review the district court’s application of the doctrine of
judicial estoppel to the facts of [a] case for an abuse of discretion.” Kobold v. Good
Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1044 (9th Cir. 2016) (quoting Hamilton,
270 F.3d at 782). We review de novo a district court’s determination that claim
preclusion is available. Miller v. County of Santa Cruz, 39 F.3d 1030, 1032 (9th Cir.
1994) (first citing Guild Wineries & Distilleries v. Whitehall Co., Ltd., 853 F.2d 755,
2 23-16103 758 (9th Cir. 1988); and then citing Plaine v. McCabe, 797 F.2d 713, 718 (9th Cir.
1986)). We also review de novo a district court’s decision that claim preclusion bars
a plaintiff’s claim. NTCH-WA, Inc. v. ZTE Corp., 921 F.3d 1175, 1180 (9th Cir.
2019) (citing Harris v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012)).
Chung is a former Deputy District Attorney (“DDA”) for the County. While
employed as a DDA, Chung sent to a local newspaper an opinion-editorial (the
“Op-Ed”) in which he expressed views about certain criminal justice issues that were
contrary to the positions publicly taken by the County’s District Attorney, Rosen.
After the newspaper published the Op-Ed, Rosen suspended Chung without pay for
ten days for violating County policies, including a prohibition against using one’s
official title to advance political activities without authorization. Chung also alleges
that Rosen took other adverse employment actions against him.
Chung’s union appealed his ten-day suspension to an arbitrator (the
“Arbitrator”). The Arbitrator found that Chung spoke on a matter of public concern
but concluded that the County could permissibly discipline Chung for violating
County policy. The Arbitrator then considered whether just cause existed for the
penalty imposed and, based on mitigating circumstances, reduced Chung’s
suspension from ten days to five. The County petitioned a state trial court to confirm
the arbitration award, and the state trial court granted the County’s petition.
Before the arbitration had concluded, Chung filed his complaint in this case,
3 23-16103 alleging First Amendment retaliation under 42 U.S.C. § 1983. Chung alleged that
Rosen and the County retaliated against him not only by imposing the disciplinary
suspension, but also by visibly reassigning Chung to less prestigious positions and
issuing “be on the lookout” notices about Chung to staff at the District Attorney’s
Office. The County moved to dismiss, the district court granted the County’s motion,
and Chung does not appeal that decision.
After the district court dismissed the County, Rosen moved for summary
judgment, arguing, based on the Arbitrator’s decision, that California’s claim
preclusion doctrine bars Chung’s § 1983 claim. The district court granted Rosen’s
motion. On appeal, Chung challenges three of the district court’s rulings: (1) that
judicial estoppel does not stop Rosen from arguing that claim preclusion bars
Chung’s claim of First Amendment retaliation; (2) that the arbitration satisfies the
prerequisites for that proceeding to be given preclusive effect; and (3) that, for
purposes of claim preclusion under California law, the arbitration involved the same
“cause of action” that Chung asserts in this federal lawsuit.
1. Neither Chung nor Rosen were named parties in the union’s arbitration
against the County, but even if they were, or even if they were in privity with the
named parties, Chung’s judicial estoppel argument fails on the merits under the
framework stated in New Hampshire v. Maine, 532 U.S. 742 (2001). Chung has not
shown that the two arguments at issue are “clearly inconsistent.” Id. at 750. There is
4 23-16103 no inconsistency between: (i) the County’s argument made at arbitration that
Chung’s First Amendment claims should not be adjudicated (or that evidence
relating to those claims should not be permitted) and (ii) Rosen’s argument made to
the district court that the issue was sufficiently adjudicated at arbitration such that
claim preclusion should apply. The district court also did not err in concluding that
the County failed to persuade the Arbitrator to accept its argument that Chung’s First
Amendment claim should not be considered in the arbitration. See id. (citing
Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)). Accordingly, we
affirm the district court’s ruling on judicial estoppel and conclude that Rosen may
be heard on the merits of his claim preclusion argument.
2. Regarding whether the arbitration satisfies the prerequisites for that
proceeding to be given preclusive effect, “[i]t is well established that, even in a suit
under section 1983, 28 U.S.C. § 1738 requires federal courts give the same ‘full faith
and credit’ to the records and judicial proceedings of any state court that they would
receive in the state from which they arise.” Caldeira v. County of Kauai, 866 F.2d
1175, 1178 (9th Cir. 1989) (quoting 28 U.S.C. § 1738). Here, the state trial court’s
confirmation of the arbitration award constitutes a judicial proceeding for purposes
of § 1738 and must therefore be given the full faith and credit it would receive under
California law. See id.
Under California law, “[a] judgment confirming [an] arbitration award
5 23-16103 constitutes a final judgment on the merits” that can have preclusive effect. See Cal
Sierra Dev., Inc. v. George Reed, Inc., 223 Cal. Rptr. 3d 506, 519 (Ct. App. 2017)
(citing Sartor v. Superior Court, 187 Cal. Rptr. 247, 250 (Ct. App. 1982)); see also
Vandenberg v. Superior Court, 982 P.2d 229, 234 n.2 (Cal. 1999) (noting “the strict
. . . ‘claim preclusive[]’ effect of a California law private arbitration award”).
Accordingly, we affirm the district court’s determination that the arbitration award
can have preclusive effect. The only question that remains is whether the substantive
requirements of claim preclusion under California law have been satisfied so as to
preclude Chung’s § 1983 claim against Rosen.
3. Under California law, “[c]laim preclusion arises if a second suit
involves: (1) the same cause of action (2) between the same parties (3) after a final
judgment on the merits in the first suit.” DKN Holdings LLC v. Faerber, 352 P.3d
378, 386 (Cal. 2015) (citing Mycogen Corp. v. Monsanto Co., 51 P.3d 297, 301 (Cal.
2002)). For purposes of claim preclusion, California law defines a “cause of action”
by employing a “primary rights” approach. City of Martinez v. Texaco Trading &
Transp., Inc., 353 F.3d 758, 762 (9th Cir. 2003). Under that approach, a “cause of
action” consists of “(1) a primary right possessed by the plaintiff, (2) a corresponding
primary duty devolving upon the defendant, and (3) a harm done by the defendant
which consists [of] a breach of such primary right and duty.” Id. (citing Citizens for
Open Access to Sand & Tide, Inc. v. Seadrift Ass’n, 71 Cal. Rptr. 2d 77, 86 (1998)).
6 23-16103 The “cause of action,” thus, is “the right to obtain redress for a harm suffered,
regardless of the specific remedy sought or the legal theory (common law or
statutory) advanced.” Boeken v. Philip Morris USA, Inc., 230 P.3d 342, 348
(Cal. 2010) (citing Bay Cities Paving & Grading, Inc. v. Lawyers’ Mut. Ins. Co., 855
P.2d 1263, 1266 (Cal. 1993)).
Here, the arbitration award did not address all the harms that Chung alleges in
his complaint. In the arbitration, Chung—or more precisely, his union—challenged
only Chung’s ten-day suspension without pay. The Arbitrator concluded that the
County could discipline Chung by suspending him without pay and that doing so
would not run afoul of the First Amendment. The Arbitrator, however, did not
address whether any of the other alleged harms, or adverse employment actions,
allegedly inflicted by Rosen violated Chung’s First Amendment rights.
To the extent that Chung seeks recovery in this action for harms resulting from
the other alleged actions—i.e., Rosen’s reassignment of Chung to less prestigious
positions and issuance of “be on the lookout” notices—the harms at issue in the two
proceedings are not the same. Cf. id. at 353 (“[T]he two actions concern the same
plaintiff seeking the same damages from the same defendant for the same harm, and
to that extent they involve the same primary right.”); Gonzales v. Cal. Dep’t of Corr.,
739 F.3d 1226, 1234 (9th Cir. 2014) (similar). Thus, although Chung’s claim is
precluded insofar as it seeks to remedy the ten-day suspension already addressed at
7 23-16103 arbitration, his claim is not precluded and can proceed insofar as it seeks to remedy
those other harms. We accordingly reverse the district court’s ruling on claim
preclusion, and remand for further proceedings consistent with this disposition.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.1
1 Each party shall bear its own costs associated with this appeal.
8 23-16103