NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 9 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSE P. FREEMAN, No. 18-55454

Plaintiff-Appellant, D.C. No. 2:16-cv-07172-JAK-GJS

v.

MEMORANDUM*

CITY OF PORT HUENEME; CARMEN

NICHOLS,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Argued and Submitted October 16, 2019 Pasadena, California

Before: WARDLAW and COLLINS, Circuit Judges, and BATAILLON,** District Judge.

Rose Freeman appeals the district court’s grant of summary judgment to the

City of Port Hueneme and Deputy City Manager Carmen Nichols with respect to

Freeman’s single cause of action under 42 U.S.C. § 1983 for retaliatory discharge

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska, sitting by designation. in violation of her First Amendment rights. The district court held that the

preclusive effect of Freeman’s prior unsuccessful administrative challenge to her

termination barred her § 1983 claim. We affirm.1

“Under federal common law, federal courts accord preclusive effect to state

administrative proceedings that meet the fairness requirements of United States v.

Utah Construction & Mining Co., 384 U.S. 394 (1966).” Doe v. Regents of Univ.

of Cal., 891 F.3d 1147, 1154 (9th Cir. 2018). “Because California has adopted the

Utah Construction standard, we give preclusive effect to a state administrative

decision if the California courts would do so.” Id. at 1155; see also Miller v.

County of Santa Cruz, 39 F.3d 1030, 1032–33 (9th Cir. 1994) (“[N]o special

circumstances requir[e] us to look beyond the state’s preclusion law, because

California ha[s] already adopted the Utah Construction standard.”). In California,

“exhaustion of judicial remedies is necessary to avoid giving binding effect to an

administrative agency’s decision.” Doe, 891 F.3d at 1155 (quoting Johnson v. City

of Loma Linda, 5 P.3d 874, 879 (Cal. 2000)) (cleaned up). To exhaust judicial

remedies, a party must file a petition for a writ of administrative mandate under

California Code of Civil Procedure section 1094.5. Id. An administrative decision

1 In resolving the summary judgment motion, the district court did not abuse its discretion in excluding a declaration and accompanying exhibits on the grounds that Freeman had failed properly to disclose these matters in accordance with her discovery obligations under the applicable rules and court orders. Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060, 1067 (9th Cir. 2005).

2 that is entitled to preclusive effect under these principles will bar federal claims,

including § 1983 claims, that fall within that decision’s preclusive scope. Id. at

1154–55.

Freeman’s administrative proceeding satisfied all three Utah Construction

factors—“(1) that the administrative agency act in a judicial capacity, (2) that the

agency resolve disputed issues of fact properly before it, and (3) that the parties

have an adequate opportunity to litigate.” Miller, 39 F.3d at 1033. Freeman

concededly never filed a writ petition under § 1094.5 seeking judicial review of the

administrative decision. Thus, under Doe, the decision upholding her termination

is entitled to preclusive effect. 891 F.3d at 1155.

We reject Freeman’s contention that, under Brosterhous v. State Bar of

California, 906 P.2d 1242 (Cal. 1995), California would not give preclusive effect

in a § 1983 case to an administrative decision, even if it meets the requirements of

Utah Construction. Brosterhous does not endorse any such departure from

University of Tennessee v. Elliott, 478 U.S. 788, 796–99 (1986) (holding that an

administrative decision barred a § 1983 claim), see Brosterhous, 906 P.2d at 1254

(distinguishing Elliott in the context of an arbitration decision), and in any event

Freeman’s characterization of California and federal law is squarely inconsistent

with Doe. 891 F.3d at 1154–55; see also Bahra v. County of San Bernardino, 945

3 F.3d 1231, 1236–37 (9th Cir. 2019) (preclusive effect of an administrative decision

barred a § 1983 claim).

The district court also correctly concluded that Freeman’s § 1983 claim falls

within the claim-preclusive scope of the administrative decision upholding her

termination. Freeman’s § 1983 claim rests on the same primary right—the right to

continued employment—that was at stake in the administrative proceeding, where

it was determined that Freeman’s termination was “supported by just cause.” See

Miller, 39 F.3d at 1034; Swartzendruber v. City of San Diego, 5 Cal. Rptr. 2d 64,

71 (Cal. Ct. App. 1992); Takahashi v. Board of Educ. of Livingston, 249 Cal. Rptr.

578, 584–86 (Cal. Ct. App. 1988). Freeman’s reliance on George v. California

Unemployment Insurance Appeals Board 102 Cal. Rptr. 3d 431 (Cal. Ct. App.

2009), is unavailing. See Wade v. Ports Am. Mgmt. Corp., 160 Cal. Rptr. 3d 482,

490–91 (Cal. Ct. App. 2013) (distinguishing George on the grounds, inter alia, that

it involved a claim under the California Fair Employment and Housing Act and the

administrative decision in George did not resolve “whether the discharge was for

good cause”).

AFFIRMED.

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