FILED

NOT FOR PUBLICATION MAR 18 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

WILLIAM SETZLER, an individual, No. 09-15463

Plaintiff - Appellant, D.C. No. 3:07-CV-05792-SI

v.

MEMORANDUM *

CITY AND COUNTY OF SAN

FRANCISCO,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding

Submitted March 10, 2010 ** San Francisco, California

Before: HALL, NOONAN and THOMAS, Circuit Judges.

William Setzler appeals from the district court’s order dismissing his

complaint. We affirm. Because the parties are familiar with the factual and

procedural history of this case, we will not recount it here.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

1 The district court correctly concluded that, to the extent that Setzler’s

procedural due process claim is based on the City’s alleged “concealment” of

evidence relating to his application for disability retirement, it is barred by the

doctrine of collateral estoppel. See First Nat’l Bank v. Russell (In re Russell), 76

F.3d 242, 244-45 (9th Cir. 1996) (collateral estoppel applies where issues at stake

were actually litigated by a party against whom preclusion is asserted and were

necessary to the earlier judgment). The record demonstrates that this issue was

actually litigated in Setzler’s second state court proceeding, in which the trial court

held that “Setzler has not shown that the City wrongfully concealed evidence or

engaged in fraud or perjury.”

Setzler’s remaining claims are barred by the doctrine of res judicata. Setzler

could have, but did not, bring his § 1983 claim with his state court petitions for a

writ of mandamus. See Eichman v. Fotomat Corp., 147 Cal.App.3d 1170, 1175

(1983) (“If the same primary right is involved in two actions, judgment in the first

bars consideration not only of all matters actually raised in the first suit but also all

matters which could have been raised”) (citation omitted). A claim involving

federal constitutional rights may be joined to a California mandamus action, see

Gallagher v. Frye, 631 F.2d 127, 130 (9th Cir. 1980), and a California court may

grant relief in the form of damages together with a writ of mandamus regarding the

2 same action, see Cal. Civ. Pro. Code §§ 1090, 1095 (1990); see also Ohton v. Bd.

of Trustees of Cal. State Univ., 148 Cal.App.4th 749, 767 (2007) (“there is no

procedural bar to combining a petition for mandamus with a complaint for

damages”).

Setzler also argues that the superior court’s decision should not be given

preclusive effect because the litigation did not encompass a due process claim or a

claim for relief based on Setzler’s emotional distress stemming from the City’s

alleged unlawful conduct. However, the fact that a present action alleges different

claims for relief than a prior proceeding is not a bar to preclusion. Mfg’ed Home

Communities v. City of San Jose, 420 F.3d 1022, 1031-32 (9th Cir. 2005).

AFFIRMED.

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