NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 23 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN GARCIA, No. 19-55392

Plaintiff-Appellant, D.C. No. 3:15-cv-01606-MMA-RBM and

JOSEPH BIELMA; et al., MEMORANDUM*

Plaintiffs,

v.

MICHAEL BOSTIC, individually and as Interim Chief of Police; et al.,

Defendants-Appellees,

and

MARITZA HURTADO, individually and as an agent of the City; DOES, 1-10,

Defendants.

GERMAN DURAN; et al., No. 19-55580

Plaintiffs-Appellants, D.C. No. 3:15-cv-01606-MMA-RBM and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. STEVEN GARCIA; et al.,

Plaintiffs,

v.

MICHAEL BOSTIC, individually and as Interim Chief of Police; et al.,

Defendants-Appellees,

and

MARITZA HURTADO, individually and as an agent of the City; DOES, 1-10,

Defendants.

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding

Submitted May 6, 2020** Pasadena, California

Before: GOULD and CHRISTEN, Circuit Judges, and STEIN,*** District Judge.

Steven Garcia, Frank Uriarte, German Duran, and Stephen Frazier are

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation.

2 19-55392 former police officers employed by the City of Calexico. After they unsuccessfully

challenged their termination in state administrative appeals, they brought this civil

rights action pursuant to 42 U.S.C. § 1983 alleging that they were terminated from

their employment in retaliation for exercising their First Amendment rights to

protected speech and union activity.1 The district court granted summary judgment

against them based on the preclusive effect of the adverse state administrative

decisions and denied a motion for a new trial.

On appeal, Appellants contend that under California law, no administrative

decision is entitled to preclusive effect in a later § 1983 lawsuit because such

claims must be judicially resolved. Appellants further contend that the primary

right at issue in their administrative appeals was not the same primary right at issue

in their § 1983 action and that they did not have an adequate opportunity to address

the allegations of retaliation that formed the basis of their § 1983 claims. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. We review de novo a district court’s determination that res judicata is

available. Guild Wineries & Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th

Cir. 1988).

To determine the preclusive effect of a state administrative decision or a

state court judgment, we follow the state’s rules of preclusion. Kremer v. Chem.

1 We assume familiarity with the facts and procedural history of this case.

3 19-55392 Constr. Corp., 456 U.S. 461, 482 (1982). “Under California law, a prior

administrative proceeding, if upheld on review (or not reviewed at all), will be

binding in later civil actions to the same extent as a state court decision if ‘the

administrative proceeding possessed the requisite judicial character.’” White v. City

of Pasadena, 671 F.3d 918, 927 (9th Cir. 2012) (quoting Runyon v. Bd. of Tr., 229

P.3d 985, 994 (Cal. 2010)). To possess the requisite judicial character, the

administrative agency must “act[] in a judicial capacity and resolve[] disputed

issues of fact properly before it which the parties have had an adequate opportunity

to litigate.” People v. Sims, 651 P.2d 321, 327 (Cal. 1982) (emphases omitted),

superseded by statute on other grounds as stated in Gikas v. Zolin, 863 P.2d 745

(Cal. 1993) (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394,

422 (1966)).

Here, Appellants’ administrative appeals were judicial in character and

satisfied California’s preclusion principles. At their administrative hearings, each

appellant: agreed on a presiding hearing officer; was represented by counsel; and

had multi-day hearings at which they were able to make opening statements and

arguments, submit documentary evidence, and examine and cross-examine

witnesses under oath. Moreover, a court reporter recorded a verbatim transcript at

the hearings, each appellant had the opportunity to submit a brief with arguments,

and the hearing officer issued a written decision finding that just cause existed to

4 19-55392 terminate the appellants. Each proceeding was also subject to judicial review via a

petition for a writ of mandate pursuant to California Code of Civil Procedure

section 1094.5.

Appellants argue that in Brosterhous v. State Bar, 906 P.2d 1242 (Cal.

1995), the California Supreme Court held that the state’s law on preclusion

requires that § 1983 actions be resolved judicially, rather than through

administrative adjudication or arbitration, and that only voluntary administrative

proceedings on a § 1983 claim can have a preclusive effect. These contentions are

incorrect. The U.S. Supreme Court has held that rules of claim preclusion apply

equally to § 1983 actions in federal courts. Allen v. McCurry, 449 U.S. 90, 98

(1980). Moreover, Ninth Circuit and California decisions both before and after

Brosterhous have refuted the proposition that California administrative decisions

are not given preclusive effect in § 1983 suits. See, e.g., San Remo Hotel v. City &

Cty. of San Francisco, 145 F.3d 1095, 1103 (9th Cir. 1998); Swartzendruber v.

City of San Diego, 5 Cal. Rptr. 2d 64, 71–72 (Cal. Ct. App. 1992), disapproved on

other grounds in Johnson v. City of Loma Linda, 5 P.3d 874 (Cal. 2000). The

district court did not err by giving preclusive effect to the administrative decisions

in Appellants’ § 1983 case.

2. We review a grant of summary judgment de novo. Bagdadi v. Nazar,

84 F.3d 1194, 1197 (9th Cir. 1996). Further, we review a district court’s denial of a

5 19-55392 motion for a new trial for an abuse of discretion. Cal. Sansome Co. v. U.S.

Gypsum, 55 F.3d 1402, 1405 (9th Cir. 1995).

Here, the district court did not err in granting summary judgment and in

denying Appellants’ motion for a new trial. The district court properly concluded

that Appellants’ § 1983 claims fell within the claim-preclusive scope of the

administrative decisions upholding their terminations. Indeed, Appellants’ claims

in the federal lawsuit were predicated solely on the City’s decision to terminate

them. Their § 1983 claims rested on the same primary right—the right to

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

it was determined that Appellants’ terminations were supported by just cause. See

Miller v. Cty. of Santa Cruz, 39 F.3d 1030, 1034 (9th Cir. 1994). Courts in this

circuit and in California have consistently rejected the proposition that a

termination becomes a different primary right or different cause of action simply

because the plaintiff subsequently opts to allege the termination as a constitutional

deprivation. See id. at 1034–35; Takahashi v. Bd. of Trs., 783 F.2d 848, 851 (9th

Cir. 1986); Swartzendruber, 5 Cal. Rptr. 2d at 71.

The district court did not err in determining that Appellants had an adequate

opportunity to address the allegations of retaliation that formed the basis of their

§ 1983 claims. Appellants were free in their administrative proceedings to pursue

any theory as to why their terminations were allegedly wrongful, including the

6 19-55392 theory of their § 1983 lawsuit—that they were wrongfully terminated in retaliation

for engaging in a protected activity. California courts have recognized that “[r]es

judicata bars the litigation not only of issues that were actually litigated in the prior

proceeding, but also issues that could have been litigated in that proceeding.”

Zevnik v. Superior Court, 70 Cal. Rptr. 3d 817, 821 (Cal. Ct. App. 2008).

Ultimately, Appellants voluntarily decided to pursue their administrative appeals.

They are therefore barred from subsequently litigating a theory in federal court that

they could have raised in their previous proceedings. See Utah Constr., 384 U.S. at

422 (“When an administrative agency is acting in a judicial capacity and resolved

disputed issues of fact properly before it which the parties have had an adequate

opportunity to litigate, the courts have not hesitated to apply res judicata to enforce

repose.”).

AFFIRMED.

7 19-55392