NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 8 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
STEPHEN YAGMAN, No. 17-55697
Plaintiff - Appellant, D.C. No. 2:16-cv-5944-JAK-E
v. MEMORANDUM* ERIC GARCETTI, individual and official capacity; et al.,
Defendants - Appellees.
On Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding
Submitted August 3, 2018** Pasadena, California
Before: BERZON and NGUYEN, Circuit Judges, and ZOUHARY,*** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. 1 Stephen Yagman raises a third challenge to the constitutionality of the
procedures provided by the City of Los Angeles for contesting parking tickets. In
short verse, those procedures begin with an initial review of the parking citation. If
the citation is not cancelled, the contestant must deposit the amount of the penalty
to obtain a formal administrative hearing. And if the contestant does not prevail at
the administrative hearing, he or she may seek de novo review in the state superior
court. See Cal. Veh. Code §§ 40215, 40230.
In his first lawsuit, Yagman claimed these procedures violated his due
process rights by depriving him of property without a hearing. He also alleged
malicious prosecution, conspiracy, Monell liability, and RICO violations. In a
published opinion, we held the City’s procedures were constitutionally adequate
under Mathews v. Eldridge, 424 U.S. 319 (1976), and Yagman’s other claims were
conclusory and could not be sustained given the lack of any predicate due process
violation by the City. Yagman v. Garcetti (Yagman I), 852 F.3d 859 (9th Cir.
2017).
In his second lawsuit, Yagman repeated the same claims against the same
defendants, but added allegations that the City’s outsourcing of the initial review to
a non-governmental entity violated state law. He argued that this delegation made
the initial review a “legal nullity,” such that there effectively was no initial, pre-
2 deprivation review. We held this claim was barred by res judicata. Yagman v.
Garcetti (Yagman II), 673 F. App’x 633 (9th Cir. 2017).
In the present case, Yagman raises the same legal claims identified in his
prior lawsuits. But he now bases his claims on a “new” parking ticket issued in
September 2015.1 Yagman alleges that in contrast to the tickets at issue in his
previous cases, this time he paid the fine and requested an administrative hearing
to challenge the ticket but was never provided one. He therefore describes his
complaint as raising a distinct due process violation, rooted in a permanent rather
than temporary deprivation of property. Nevertheless, the district court dismissed
the Complaint based on res judicata. Yagman once again appeals.
We review de novo a district court order granting judgment on the pleadings
under Federal Civil Rule 12(c). See Peterson v. California, 604 F.3d 1166, 1169
(9th Cir. 2010); see also Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047,
1051 (9th Cir. 2005) (“A district court’s judgment based upon res judicata is a
mixed question of law and fact in which legal issues predominate. Accordingly,
we review the district court’s order de novo.”). We may affirm a dismissal on any
1 The Yagman III Complaint also references two of the parking tickets at issue in Yagman I and II. But we summarily affirmed the district court order dismissing Yagman’s claims as to those two tickets based on res judicata. See Docket 21. 3 basis supported by the record, even if the district court relied on different grounds
or reasoning. Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999).
1. “Res judicata, or claim preclusion, prohibits lawsuits on ‘any claims
that were raised or could have been raised’ in a prior action.” Stewart v. U.S.
Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (emphasis in original) (quoting Owens
v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)). Res
judicata applies when there is (1) a final judgment on the merits, (2) identity or
privity between the parties, and (3) identity of claims. Id. To determine whether a
dispute concerns the same claims as prior litigation, we consider “(1) whether
rights or interests established in the prior judgment would be destroyed or impaired
by prosecution of the second action; (2) whether substantially the same evidence is
presented in the two actions; (3) whether the two suits involve infringement of the
same right; and (4) whether the two suits arise out of the same transactional
nucleus of facts.” Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02
(9th Cir. 1982) (quoting Harris v. Jacobs, 621 F.2d 341, 434 (9th Cir. 1980)).
“The last of these criteria is the most important.” Id. at 1202.
The district court properly concluded that the first two elements are met:
Yagman I and II each proceeded to a final judgment on the merits, and the parties
in this case are either identical or in privity with those in the earlier cases. But
Yagman contends this case presents a new, unprecluded claim based on the
4 September 2015 parking ticket, which was issued after he filed the Yagman I and II
complaints. See Howard v. City of Coos Bay, 871 F.3d 1032, 1040 (9th Cir. 2017)
(“[C]laim preclusion does not apply to claims that accrue after the filing of the
operative complaint.”).
Yagman overstates the holding in Howard: a new factual event does not
necessarily give rise to a new legal claim where the challenge is to the same
ongoing procedure or policy and the new factual event is alleged “only as an
‘example’ of . . . [a] long-standing practice of non-compliance with [the law].”
Turtle Island Restoration Network v. U.S. Dep’t of State, 673 F.3d 914, 918 (9th
Cir. 2012). “[C]laim preclusion isn’t defeated where ‘[d]istinct conduct is alleged
only in the limited sense that every day is a new day, so doing the same thing today
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 8 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
STEPHEN YAGMAN, No. 17-55697
Plaintiff - Appellant, D.C. No. 2:16-cv-5944-JAK-E
v. MEMORANDUM* ERIC GARCETTI, individual and official capacity; et al.,
Defendants - Appellees.
On Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding
Submitted August 3, 2018** Pasadena, California
Before: BERZON and NGUYEN, Circuit Judges, and ZOUHARY,*** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. 1 Stephen Yagman raises a third challenge to the constitutionality of the
procedures provided by the City of Los Angeles for contesting parking tickets. In
short verse, those procedures begin with an initial review of the parking citation. If
the citation is not cancelled, the contestant must deposit the amount of the penalty
to obtain a formal administrative hearing. And if the contestant does not prevail at
the administrative hearing, he or she may seek de novo review in the state superior
court. See Cal. Veh. Code §§ 40215, 40230.
In his first lawsuit, Yagman claimed these procedures violated his due
process rights by depriving him of property without a hearing. He also alleged
malicious prosecution, conspiracy, Monell liability, and RICO violations. In a
published opinion, we held the City’s procedures were constitutionally adequate
under Mathews v. Eldridge, 424 U.S. 319 (1976), and Yagman’s other claims were
conclusory and could not be sustained given the lack of any predicate due process
violation by the City. Yagman v. Garcetti (Yagman I), 852 F.3d 859 (9th Cir.
2017).
In his second lawsuit, Yagman repeated the same claims against the same
defendants, but added allegations that the City’s outsourcing of the initial review to
a non-governmental entity violated state law. He argued that this delegation made
the initial review a “legal nullity,” such that there effectively was no initial, pre-
2 deprivation review. We held this claim was barred by res judicata. Yagman v.
Garcetti (Yagman II), 673 F. App’x 633 (9th Cir. 2017).
In the present case, Yagman raises the same legal claims identified in his
prior lawsuits. But he now bases his claims on a “new” parking ticket issued in
September 2015.1 Yagman alleges that in contrast to the tickets at issue in his
previous cases, this time he paid the fine and requested an administrative hearing
to challenge the ticket but was never provided one. He therefore describes his
complaint as raising a distinct due process violation, rooted in a permanent rather
than temporary deprivation of property. Nevertheless, the district court dismissed
the Complaint based on res judicata. Yagman once again appeals.
We review de novo a district court order granting judgment on the pleadings
under Federal Civil Rule 12(c). See Peterson v. California, 604 F.3d 1166, 1169
(9th Cir. 2010); see also Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047,
1051 (9th Cir. 2005) (“A district court’s judgment based upon res judicata is a
mixed question of law and fact in which legal issues predominate. Accordingly,
we review the district court’s order de novo.”). We may affirm a dismissal on any
1 The Yagman III Complaint also references two of the parking tickets at issue in Yagman I and II. But we summarily affirmed the district court order dismissing Yagman’s claims as to those two tickets based on res judicata. See Docket 21. 3 basis supported by the record, even if the district court relied on different grounds
or reasoning. Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999).
1. “Res judicata, or claim preclusion, prohibits lawsuits on ‘any claims
that were raised or could have been raised’ in a prior action.” Stewart v. U.S.
Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (emphasis in original) (quoting Owens
v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)). Res
judicata applies when there is (1) a final judgment on the merits, (2) identity or
privity between the parties, and (3) identity of claims. Id. To determine whether a
dispute concerns the same claims as prior litigation, we consider “(1) whether
rights or interests established in the prior judgment would be destroyed or impaired
by prosecution of the second action; (2) whether substantially the same evidence is
presented in the two actions; (3) whether the two suits involve infringement of the
same right; and (4) whether the two suits arise out of the same transactional
nucleus of facts.” Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02
(9th Cir. 1982) (quoting Harris v. Jacobs, 621 F.2d 341, 434 (9th Cir. 1980)).
“The last of these criteria is the most important.” Id. at 1202.
The district court properly concluded that the first two elements are met:
Yagman I and II each proceeded to a final judgment on the merits, and the parties
in this case are either identical or in privity with those in the earlier cases. But
Yagman contends this case presents a new, unprecluded claim based on the
4 September 2015 parking ticket, which was issued after he filed the Yagman I and II
complaints. See Howard v. City of Coos Bay, 871 F.3d 1032, 1040 (9th Cir. 2017)
(“[C]laim preclusion does not apply to claims that accrue after the filing of the
operative complaint.”).
Yagman overstates the holding in Howard: a new factual event does not
necessarily give rise to a new legal claim where the challenge is to the same
ongoing procedure or policy and the new factual event is alleged “only as an
‘example’ of . . . [a] long-standing practice of non-compliance with [the law].”
Turtle Island Restoration Network v. U.S. Dep’t of State, 673 F.3d 914, 918 (9th
Cir. 2012). “[C]laim preclusion isn’t defeated where ‘[d]istinct conduct is alleged
only in the limited sense that every day is a new day, so doing the same thing today
as yesterday is distinct from what was done yesterday.’” Id. at 919 (second
alteration in original) (quoting In re Dual-Deck Video Cassette Recorder Antitrust
Litig., 11 F.3d 1460, 1464 (9th Cir. 1993)). Thus, to avoid the preclusive effect of
the judgments in Yagman I and II, Yagman must identify a factually different
procedure distinct from and occurring after the one alleged in his earlier
complaints. He argues that he has raised two such factually distinct circumstances.
2. First, Yagman alleges he was permanently deprived of his property
when he paid the penalty for the September 2015 ticket but never received a
hearing. He argues this claim is not precluded because the prospect of a permanent
5 deprivation was not at issue in Yagman I or II. But the district court pleadings
reveal that Yagman is conflating two separate stages of the City’s procedures.
According to Yagman, the City first offered to cancel the ticket in exchange for
proof of a disabled person parking placard and payment of a $25 administrative
fee. See Cal. Veh. Code § 40226. Yagman provided the placard but refused to pay
the fee. Then, after an initial review, the City found the ticket valid, and offered
Yagman the opportunity to deposit the $63 penalty for the ticket and obtain an
administrative hearing. See Cal. Veh. Code § 40215. Yagman requested a hearing
but did not deposit the penalty by the deadline. The City assessed an additional
fine, consistent with its notice of delinquency. Yagman then paid the total amount
of the fine.
Yagman alleged a rough outline of this series of events in the Complaint.
He fleshed out the details by attaching his correspondence with the City to his
opposition to the motion for judgment on the pleadings. See United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“Even if a document is not attached to
a complaint, it may be incorporated by reference into a complaint if . . . the
document forms the basis of the plaintiff’s claim.”). In other words, the pleadings
demonstrate the City followed the same procedures that we previously held
6 complied with the requirements of due process. The district court did not err in
dismissing this claim as precluded.
3. Second, Yagman claims the City’s practice of delegating the initial
review to a non-governmental entity is prohibited by state law. He argues that the
purportedly illegal delegation renders that review a “legal nullity,” or the
equivalent of “no review at all.” Our prior rulings on this issue may have caused
some confusion. We now clarify.
In Yagman I, Yagman argued in the district court that the initial review was
“perfunctory” and “unfair” because—among other things—it was conducted by a
contractor rather than the City itself. Yagman v. Garcetti, Case No. 14-CV-2330
(C.D. Cal.) (Docket 32 at 14 n.4). We rejected that argument, concluding
“[n]othing in the Complaint plausibly suggests the initial reviews were conducted
unfairly.” Yagman I, 852 F.3d at 865. On that appeal, Yagman also attempted to
argue, for the first time, that the City’s delegation of the initial review violated the
California Vehicle Code and resulted in a “legal nullity.” We declined to consider
that argument because he failed to raise it below. Id. at 865 n.1.
When Yagman raised the same argument in Yagman II, we affirmed the
district court’s determination that it was precluded. Yagman II, 673 F. App’x at
634. We do so yet again here. The procedure challenged in Yagman I and Yagman
II had not changed with regard to the use of a third-party contractor at the time
7 Yagman received the ticket now challenged. See McClain v. Apodaca, 793 F.2d
1031, 1034 (9th Cir. 1986) (“[Plaintiff] cannot avoid the bar of res judicata merely
by . . . pleading a new legal theory.”).
4. Yagman’s remaining claims for malicious prosecution, conspiracy,
and RICO violations likewise are barred by res judicata. Further, his requests for
injunctive and declaratory relief are also moot, as the City no longer outsources the
initial review process.2
AFFIRMED.
2 The Motion to Take Judicial Notice (Docket 24) is granted. 8