Djordjevic v. City & Municipality of Walnut Creek

151 F. App'x 584

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2005
• Docket: No. 04-15310
• Status: Published

Opinion

MEMORANDUM

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Djordjevic failed to bring a timely administrative mandamus action in state court to challenge the revocation of his conditional use permit. See Cal.Civ.Proc. Code §§ 1094.5, 1094.6(b). Thus, the administrative decision to revoke his permit has the effect of a final state court judgment. See Johnson v. City of Loma Linda, 24 Cal.4th 61, 99 Cal.Rptr.2d 316, 5 P.3d 874, 876 (2000); Westlake Cmty. Hosp. v. Superior Court, 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410, 421 (1976); Briggs v. City of Rolling Hills Estates, 40 Cal.App.4th 637, 47 Cal.Rptr.2d 29, 33 (1995).

We are required to give preclusive effect to the findings of state administrative tribunals in subsequent civil rights actions. See Univ. of Tenn. v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986); Miller v. County of Santa Cruz, 39 F.3d 1030, 1032-38 (9th Cir.1994). Preclusion “extend[s] to state administrative adjudications of legal as well as factual issues, even if unreviewed, so long as the state court proceeding satisfies the requirements of fairness outlined in [United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) ].” Miller, 39 F.3d at 1032-33 (second alteration in original) (quoting Guild Wineries & Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir.1988)). Djordjevic does not claim the revocation proceeding failed to meet these requirements.

Djordjevic’s argument that the equal protection violation did not occur until another restaurant was granted a conditional use permit at the same location but subjected to conditions different from those imposed on him misses the mark. That another restaurant was granted a permit subject to different conditions might be proof of an equal protection violation. But the violation itself, if any, occurred at the time he was denied his permit. See Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.2001). Djordjevic litigated his claim of disparate treatment during the course of the administrative proceedings, and that claim was resolved against him. Subsequently acquired proof of the alleged violation does not resuscitate a claim that was resolved against him in the prior proceedings.

AFFIRMED.

disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.