Unpublished Disposition, 935 F.2d 273 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 273 (9th Cir. 1991)

John F. CHOW, M.D., Esther Chow, d/b/a Healing Art Pharmacy,Plaintiffs-Appellants,v.James Wiley McMAHON, Dennis Hughes, et al., Defendants-Appellees.

No. 88-5813.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


John F. Chow, M.D., and Esther Chow, d/b/a Healing Arts Pharmacy, appeal pro se the district court's dismissal of their action pursuant to Fed. R. Civ. P. 8(a) and 12(b) (6). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm on the basis of res judicata.1 

Res judicata bars all grounds for recovery which have been asserted, whether they were or not, in a prior suit between the same parties or their privies on the same cause of action. Constantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir.), cert. denied, 459 U.S. 1087 (1982). We apply the res judicata law of the state in which this court sits. See id. (citation omitted). Thus, California's law of res judicata dictates what preclusive effect is to be accorded the prior judgments against the Chows. Id. California law, however, determines the res judicata effect of a prior federal court judgment by applying federal standards. Id. (footnote omitted).

To determine whether successive lawsuits involve the same cause of action, we apply the following criteria: (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. Id. at 1201-02. The last of these criteria is the most important. Id. at 1202.

This is approximately the ninth action the Chows have brought, in both state and federal courts, alleging the same causes of action against the same defendants or their privies. All actions have resulted in judgments against the Chows for various reasons, including res judicata. The Chows present the same evidence in each case, usually in the form of lengthy, confusing complaints which fail to state any of the alleged actions with specificity. All of the actions stem from the Chows' loss of their pharmaceutical license, which they claim is the result of, inter alia, race discrimination, conspiracy, and bribery by the named defendants. This action proved to be no different. Many of the defendants are the same as in previous actions, including a magistrate, an administrative law judge, a state court judge, deputies attorney general, and members of the California State Board of Pharmacy, Department of Consumer Affairs. The Chows cannot avoid the bar of res judicata merely by alleging facts not alleged in previous suits, or by pleading new legal theories. The Chows do not state a cause of action different from those raised in previous actions. Therefore, their action is barred by res judicata.

The appellees' request for an award attorneys fees in the amount of $675.00 pursuant to 42 U.S.C. § 1988 is granted.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This 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


We may affirm a correct result on an alternate basis supported by the record. KOLA. Inv. v. United States, 882 F.2d 361, 363 (9th Cir. 1989)