Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1984)

MEMORANDUM^* 

Royal Corporation challenges the constitutionality of a superceded City of La Mesa zoning ordinance and the city's denial of Royal's requested conditional use permit under that ordinance. Royal alleges that La Mesa violated Royal's first amendment rights. Royal does not challenge the current amended version of the zoning ordinance, thus its declaratory and injunctive relief claims are moot. All that remains is Royal's section 1983 damages claim for a constitutional injury caused by the pre-amendment or superceded version of this ordinance, as it existed in December 1983.

The district court, after trial, found for the City of La Mesa. We affirm.

FACTS

The facts of this case are uncontested.

In September, 1983, Royal entered into a lease with the Marquee Entertainment Corporation. Marquee was to lease what had been a skating rink and convert it for use as a live entertainment theater. Prior to December 8, 1983, without a building permit, Marquee commenced significant renovations. A Stop Work Order was issued by the La Mesa Building Department.

In December 1983, Royal submitted two applications for a Conditional Use Permit, as required by Ordinances 24.02.060 and 24.06.020(C) (5). The applications were denied. After Royal pursued appeals to the City Council, it petitioned the Superior Court of California, County of San Diego for a Writ of Mandate. The Writ sought 1) to force La Mesa to issue a Business License to Marquee to operate an Entertainment business on the subject property, 2) to force the processing of any other permits required at the time the initial application was made (December 1983), 3) damages totaling $600,000 for the lost lease revenue that Marquee would have paid Royal, and 4) costs and other just and proper relief. The Writ was denied December 3, 1984.

The day after Royal filed its state court case, it filed this federal case in district court. Before trial, La Mesa moved for dismissal based on res judicata of the state case. The motion was denied.

DISCUSSION

Royal's claims could have been brought in the earlier state court proceeding and are now barred by res judicata. Res judicata bars a party from relitigating not only issues actually decided in a prior suit but also all issues that could have been brought in an earlier cause of action. See Shaw v. State of California Department of Alcoholic Beverage Control, 788 F.2d 600, 605 (9th Cir. 1986) (doctrine of claim preclusion bars relitigation of claims even if particular theories of recovery or defenses raised in the second proceeding were not actually raised in the first); Los Angeles Branch NAACP v. Los Angeles Unified School District, 750 F.2d 731 (9th Cir.), cert. denied, 474 U.S. 919 (1985). A federal court must accord a state judgment the same preclusive effect the judgment would receive in the state court. 28 U.S.C. § 1738 (1988); Migra v. Warren City School District Board of Education, 465 U.S. 75, 80-81 (1984).

California res judicata rules bar a plaintiff from litigating a claim if

the claim relates to the same "primary right" as a claim in a prior action, the prior judgment was final and on the merits, and the plaintiff was a party or in privity with a party in the prior action.

Trujillo v. County of Santa Clara, 775 F.2d 1359, 1366 (9th Cir. 1985), citing Slater v. Blackwood, 15 Cal. 3d 791, 795, 543 P.2d 593, 594, 126 Cal. Rptr. 225, 226 (1975).

In determining whether the underlying claim is the same in the two actions

California law approaches the issue by focusing on the "primary right" at stake: if the two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or new facts supporting recovery.

Eichman v. Fotomat Corp., 147 Cal. App. 3d 1170, 1174-75, 197 Cal. Rptr. 612, 614 (1983), quoted in Clark v. Yosemite Community College District, 785 F.2d 781, 784 (9th Cir. 1986). See also Slater v. Blackwood, supra.

In Derish v. San Mateo-Burlingame Board of Realtors, 724 F.2d 1347, 1349 (9th Cir. 1983), rev'd on other grounds, Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985), we raised four questions to guide our decision of whether a prior suit was on the same claim:

(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 involved infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.

Id. (citations omitted). While these questions are not for mechanistic application, "examination for an identical 'transactional nucleus of facts' is clearly the most important factor." Id.

Royal raised the issue of damages in both cases. The parties were identical in both cases. Substantially the same evidence was used in each case: the ordinances of La Mesa and the action and statements of the La Mesa officials. The primary right involved in both cases is the same: Royal's ability to build and operate a theater on the subject property. The two suits arise out of the same transactional nucleus of facts.

Royal could have raised its section 1983 claim in the state court proceeding. See Clark v. Yosemite Community College District, 785 F.2d at 786 n. 5; Cal.Civ.Proc.Code Secs. 1090, 1095. That the state action was a Writ of Mandate does not effect the outcome. See, e.g., Takahashi v. Board of Trustees, 783 F.2d 848 (9th Cir.), cert. denied, 476 U.S. 1182 (1986) (section 1983 claim barred by res judicata where plaintiff had earlier brought claim in state court by Writ of Mandate based on same facts and interests). As we have previously held, res judicata prevents the federal litigation of a federal constitutional claim that was or might have been raised. See Hawaiian Telephone Co. v. Public Utilities Commn., 827 F.2d 1264 (9th Cir. 1987), cert. denied, 108 S. Ct. 2870 (1988). See also Sewer Alert Comm. v. Pierce County, 791 F.2d 796 (9th Cir. 1986) (subsequent Sec. 1983 claims barred by res judicata because it involved same subject matter as earlier state proceeding, same transactional nucleus of facts and qualitatively identical parties).

The question of res judicata was properly raised before the district court. We reject Royal's argument that we should not consider it. The state court decision was final and on the merits. The California Supreme Court has expressed concern that:

a denial by this or the appellate court of an application for a writ without opinion "is not res judicata of the legal issues presented by the application unless the sole grounds of the denial was that the court acted on the merits, or unless it affirmatively appears that such denial was intended to be on the merits."

Hagan v. Superior Court of Los Angeles County, 22 Cal. Rptr. 206, 208, 371 P.2d 982, 984 (Cal.1962) (citations omitted) (first emphasis added; second emphasis in original). See also Consumers Lobby Against Monopolies v. Public Utilities Commn., 160 Cal. Rptr. 124, 603 P.2d 41, 46-47 n. 3 (Cal.1980). An order was entered on December 3, 1984, after both parties submitted argument, written and oral. We recognize that during the hearing on the Petition, the superior court stated:

The pivotal aspect of the case that leads to the tentative ruling is that this Court does not agree that the petitioner had a vested right at the time the application was filed, and neither the facts nor the law cited seems to support such an allegation.

These reasons became the final reasons when the judge stated that "The petition for the writs are denied for the reasons I stated earlier." No other grounds are even suggested for the denial.

Royal raised the identical damages claim in the prior state case and lost. Res judicata bars it from subsequently bringing that same claim in federal court.

Since we affirm on res judicata grounds, we do not reach Royal's other arguments.

AFFIRMED.