Unpublished Disposition, 842 F.2d 1294 (9th Cir. 1987)

MEMORANDUM^* 

James and Gloria Marble appeal the district court's grant of summary judgment in favor of all defendants, other than Kings View Corporation, on the ground of res judicata. As to Kings View, their suit was dismissed on the ground that the statute of limitations had expired. The Marbles also appeal from that dismissal. We affirm both dispositions by the district court.

FACTS AND PROCEEDINGS BELOW

While this is not a difficult case under the law, its matrix, the nature of the parent-child-state relationship, concerns a fundamental element of our civilization. Wisely, most aspects of that relationship are governed by state law.

On October 29, 1982, following a two-day hearing, the Tulare County Juvenile Court adjudged James and Gloria Marble's three minor children to be dependents of the juvenile court. The children were taken from the custody of the Marbles and subsequently placed with foster parents Wayne and Geraldine Ferguson, defendants to this lawsuit. The Marbles did not appeal the dependency actions.

The Tulare County Department of Public Social Services (DPSS) then filed an action under California Civil Code Sec. 232 (West Supp.1988), which authorizes courts to declare minor children "free from the custody and control" of their natural parents. A second Sec. 232 action was filed against Gloria Marble by Wayne and Geraldine Ferguson.

On February 13, 1985, the Tulare County Superior Court entered judgment in favor of DPSS and declared the children free from the custody and control of Gloria Marble. Gloria Marble filed a notice of appeal in that case on April 15, 1985. The California Fifth District Court of Appeal affirmed the decision. A petition for review in the state supreme court was denied, and the judgment became final on February 11, 1987.

On November 11, 1985, after an eight day trial, judgment in the second Sec. 232 action was entered in favor of the Fergusons, and they were awarded custody of the three children. Gloria Marble's appeal of that decision was involuntarily dismissed on February 26, 1987. The judgment became final on April 29, 1987.

On June 10, 1986¹  the Marbles filed this suit in federal district court, naming Kings View Corporation, (a mental health organization), Wayne and Geraldine Ferguson, DPSS and several individual employees of DPSS as defendants. The Marbles, apparently for financial reasons, see Appellant's Appendage [sic] at 96, have represented themselves in this action. Their original complaint was dismissed for failure to state a claim with leave to amend. An amended complaint was filed on September 23, 1986 under 42 U.S.C. § 1983, in which the Marbles allege violations of their constitutional rights. The essence of the complaint is that as parents they have been deprived of their liberty to rear their children without due process of law.

As already indicated, Kings View moved to dismiss on the ground that the suit was barred by the applicable statute of limitations. The other defendants moved for summary judgment on the ground that the federal suit was barred by res judicata. On April 29, 1987, the district court granted the motions and ordered that the action be dismissed with prejudice as to all defendants.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 42 U.S.C. § 1983 (1982) and 28 U.S.C. § 1343 (1982). This court's jurisdiction rests on 28 U.S.C. § 1291 (1982). Our standard of review with respect to both district court actions is de novo.

DISCUSSION

A state court judgment must be given the same preclusive effect in federal courts that the judgment would have had in the rendering state. This holds true for claims brought under 42 U.S.C. § 1983. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 84-85 (1984); Allen v. McCurry, 449 U.S. 90, 96-97 (1980). Therefore, to determine the preclusive effect of the prior state court judgments, we must look to California law.

Under California law, the doctrine of res judicata "precludes the maintenance of a second suit between the same parties on the same cause of action [involved in the first suit] so long as the first suit concluded in a final judgment on the merits." Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 750 F.2d 731, 737 (9th Cir. 1985); see Mattson v. City of Costa Mesa, 106 Cal. App. 3d 441, 446, 164 Cal. Rptr. 913, 916 (1980). A final judgment on the merits bars relitigation of all issues that were actually litigated as well as all issues that might have been litigated as part of the cause of action. Merry v. Coast Community College Dist., 97 Cal. App. 3d 214, 223-24, 158 Cal. Rptr. 603, 609 (1979).

California law employs the "primary rights" theory to determine what constitutes a cause of action. Under this theory, the invasion of a primary right gives rise to a single cause of action. Slater v. Blackwood, 15 Cal. 3d 791, 795, 126 Cal. Rptr. 225, 226, 543 P.2d 593, 594 (1975). The primary right at stake is determined by the harm suffered, not the particular theory of relief relied on by the litigant. Agarwal v. Johnson, 25 Cal. 3d 932, 954, 160 Cal. Rptr. 141, 155, 603 P.2d 58, 72 (1979).

In this case, as well as in the state proceedings, the injury alleged by the Marbles is the loss of their right to raise their children. Although this issue is framed in constitutional terms in this case, it involves the same "primary right" litigated in the state court suits. While the Marbles now focus on the constitutionality of their loss, the resulting injury remains the same. See Takahashi v. Board of Trustees, 783 F.2d 848, 851 (9th Cir. 1986).

The Marbles argue that res judicata is inapplicable because they were defendants, not plaintiffs, in the state court suits. See Appellant's Brief at 4-5. The doctrine of res judicata, however, bars the same parties from litigating the same cause of action. See Mattson v. City of Costa Mesa, supra. It matters not that these same parties have reversed their position in litigating the same cause of action.

The Marbles also claim that although they tried to raise their constitutional claim in the state courts, the state courts "never provided one chance" for them to be heard. Appellant's Brief at 4. It is not enough to show that the state court did not expressly rule on the Marbles' claim. Unless the state court did not reach the merits of the claim because of a procedural bar, the fact that the court had the opportunity to address the claim is sufficient to bar consideration of the claim in a later suit. See Clark v. Yosemite Community College Dist., 785 F.2d 781, 785-86 (9th Cir. 1986). "If the state trial court failed to issue judgment on this cause of action, [plaintiff's] proper remedy was a motion demanding a definite ruling or pursuit of an appeal, not relitigation of the cause of action involving that primary right in another forum." Id. at 786. We agree with the district court that the Marbles are precluded by res judicata from pursuing this cause of action.

Before the Supreme Court decision in Wilson v. Garcia, 471 U.S. 261 (1985), the statute of limitations applicable to Sec. 1983 actions arising in California was three years. Donovan v. Reinbold, 433 F.2d 738, 741-42 (9th Cir. 1970). Wilson, by directing courts to employ the state statute of limitations for personal injury actions with respect to Sec. 1983 claims, made such actions brought in California subject to a one-year statute of limitations. Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986). However, this court has held that Wilson does not apply retrospectively, id. at 1339-40, with the result that three years is the limitation period applicable to this case.

This does not aid the Marbles, however. They allege that Kings View participated in a civil conspiracy against them. We have stated that we "determine [] the accrual of civil conspiracies for limitations purposes in accordance with the last overt act doctrine." Id. at 1340. We agree with the district court's determination that the last alleged overt act by Kings View was on March 3, 1983. Therefore, the Marbles' action against Kings View is time-barred.

AFFIRMED.