Fred A. Whitaker, Plaintiff-appellant, v. Alameda County Superior Court, et al., Defendants-appellees, 972 F.2d 1348 (9th Cir. 1992)

MEMORANDUM^** 

Fred A. Whitaker appeals pro se the district court's dismissal of his complaint, which alleged that California's vexatious litigant statutes, Cal.Civ.Proc. § 391 et seq., are unconstitutional. We affirm.

The preclusive effect of a state court decision is determined by the law of that state. 28 U.S.C. § 1738; Marrese v. American Academy of Orthopedic Surgeons, 470 U.S. 373, 379-82 (1985). Under California law, a prior decision will preclude relitigation of an issue if: (1) the identical issue was necessarily decided in the prior proceeding; (2) the decision was a final judgment on the merits; and (3) the party against whom issue preclusion is asserted was a party to or in privity with a party to the prior proceeding. People v. Sims, 651 P.2d 321, 331 (Cal.1982).

The district court correctly dismissed Whitaker's complaint. In In re Finding of Fred A. Whitaker as a Vexatious Litigant, 8 Cal. Rptr. 2d 249, 250-51 (Cal.Ct.App.1992), the court described Whitaker's litigious history and noted:

Whitaker is again contending that the vexatious litigant statutes are unconstitutional, an argument we expressly rejected in one of his cases only last year. [i.e., Whitaker v. Bay Area Rapid Transit District, No. A049779 (Cal.Ct.App. Apr. 23, 1991) (unpublished opinion), cert. denied, --- U.S. ----, 112 S. Ct. 385 (1991).] This identical argument has also been rejected by other divisions of this court in cases in which he was a party.

The primary emphasis of Whitaker's briefs is that the vexatious litigant statutes are unconstitutional. We have carefully reviewed the record. Whitaker's claims have been fully litigated in the state courts and therefore cannot be relitigated in federal district court.

We exercise our discretion to impose damages on Whitaker as a sanction for raising frivolous issues on appeal. See Fed. R. App. P. 38; Wilcox v. Commissioner of Internal Revenue, 848 F.2d 1007, 1008-09 (9th Cir. 1988). Whitaker's argument that he is not precluded from relitigating the constitutionality of the vexatious litigant statutes is wholly without merit. We award sanctions in the amount of $250 as a judgment against Whitaker and in favor of Alameda County.

AFFIRMED.