NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 24 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KHOSROW KAMALI, an individual, No. 20-55520

Plaintiff-Appellant, D.C. No. 8:19-cv-01949-JVS-ADS v.

JOHN CHRISTOPHER HIDDLESON, in MEMORANDUM* his official capacity as Assistant Chief Legal Counsel for California Department of Transportation District 7, and in his personal capacity; et al.,

Defendants-Appellees,

and

SHIRLEY CHOATE, in her official capacity as Chief Deputy Director for California Department of Transportation District 7, and in her personal capacity; et al.,

Defendants.

KHOSROW KAMALI, an individual, No. 20-55526

Plaintiff-Appellant, D.C. No. 8:19-cv-00238-JVS-ADS v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. LAURIE BERMAN, in her official capacity as Director of the California Department of Transportation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted May 6, 2021 Pasadena, California

Before: WARDLAW, GOULD, Circuit Judges, and DONATO,** District Judge.

Khosrow Kamali appeals the district court’s dismissal of his claims under 42

U.S.C. § 1983 alleging that the California Department of Transportation

(“Caltrans”), through its employees (collectively, “Defendants”), violated Kamali’s

First and Fourteenth Amendment rights. Specifically, Kamali, himself a former

employee, alleges that Defendants barred him from accessing certain employee-

only sections of a Caltrans building on two occasions in October 2017 in retaliation

for his prior successful lawsuit against the agency. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

This is not the first lawsuit Kamali has brought based on his alleged

exclusions from certain sections of Caltrans’s building. Kamali first sued Caltrans

** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation.

2 in Los Angeles County Superior Court on March 1, 2018, for the same conduct,

alleging that Caltrans violated the Unruh Civil Rights Act (“Unruh Act”),

intentionally inflicted emotional distress, and negligently inflicted emotional

distress. Kamali later voluntarily dismissed his emotional distress claims, and the

Superior Court ultimately dismissed his Unruh Act claim in late 2018.

Subsequently, in October of 2019, Kamali filed the instant action against

Defendants in the Central District of California, this time alleging that Defendants

violated his First and Fourteenth Amendment rights based on the October 2017

exclusions. Specifically, Kamali alleged that Caltrans unlawfully excluded him in

retaliation for exercising his right to free speech as expressed in his prior lawsuits

and his advocacy for other Caltrans employees. The district court granted

Defendants’ motions to dismiss, concluding that Kamali’s federal claims were

barred by the doctrine of res judicata.

1. We agree that Kamali’s federal claims are precluded by res judicata.

We look to California law when considering the preclusive effect of a California

state court judgment. See 28 U.S.C. § 1738. Under California law, res judicata

bars claims in a subsequent proceeding if “(1) [a] claim or issue raised in the

present action is identical to a claim or issue litigated in a prior proceeding; (2) the

prior proceeding resulted in a final judgment on the merits; and (3) the party

against whom the doctrine is being asserted was a party or in privity with a party to

3 the prior proceeding.” People v. Barragan, 32 Cal. 4th 236, 253 (2004) (citation

omitted). To determine whether a claim is “identical,” California’s res judicata

doctrine rests on the “primary right theory,” which posits that “a cause of action is

comprised of (1) a ‘primary right’ of the plaintiff; (2) a primary duty of the

defendant; and (3) a wrongful act by the defendant constituting a breach of that

duty.” See Franceschi v. Franchise Tax Bd., 1 Cal. App. 5th 247, 257–58 (2016)

(cleaned up).

Here, Kamali’s federal claims are “identical” to his state court claims. Id. at

257. In both actions, Kamali asserts (1) the same primary right, the right to be free

from improper retaliation for engaging in protected activity, i.e., filing lawsuits or

otherwise advocating against Caltrans; (2) based on the same primary harm, i.e.,

his exclusions from sections of the Caltrans building on the same two days in

October of 2017; and (3) were allegedly inflicted by the same actors, Caltrans

employees. Thus, Kamali “has merely presented a new legal theory upon which

[]he seeks recovery.” Takahashi v. Bd. of Trs. of Livingston Union Sch. Dist., 783

F.2d 848, 851 (9th Cir. 1986) (citation omitted); see Boeken v. Philip Morris USA,

Inc., 48 Cal. 4th 788, 797 (2010) (“The cause of action is the right to obtain redress

for a harm suffered, regardless of . . . the legal theory advanced.”).

No new and continuing facts support Kamali’s new federal claims. Because

Defendants’ alleged exclusionary order against Kamali has not changed since the

4 state court judgment, it is merely an unchanged, continuing harm that is

insufficient to revive Kamali’s claims. See Clark v. Yosemite Comm. College

Dist., 785 F.2d 781, 789 (9th Cir. 1986).

2. The district court did not err in finding that John Hiddleson is in

privity with Caltrans. “Privity requires the sharing of an identity or community of

interest, with adequate representation of that interest in the first suit.” DKN

Holdings LLC v. Faerber, 61 Cal. 4th 813, 826 (2015) (internal quotation marks

omitted). “Privity has expanded over the years” such that privity “deals with a

person’s relationship to the subject matter of the litigation.” Castillo v. Glenair,

Inc., 23 Cal. App. 5th 262, 279 (2018), as modified on denial of reh’g (May 14,

2018) (cleaned up). Hiddleson is (and was at all relevant times) employed by and

shares substantial interests with Caltrans, the prior defendant in Kamali’s state

court action, including the same community of interest in the outcome of the

litigation. See, e.g., Castillo, 23 Cal. App. 5th at 279–80.

3. The district court did not err in finding that Brian Gray’s actions were

not attributable to Caltrans or the State of California because Gray’s conduct fails

to constitute “state action” under either “the public function test” or “the joint

action test” asserted by Kamali. Franklin v. Fox, 312 F.3d 423, 445 (9th Cir.

2002). First, under the public function test, Gray’s functions as a private security

guard were not “both traditionally and exclusively governmental.” Lee v. Katz, 276

5 F.3d 550, 555 (9th Cir. 2002) (emphasis added) (citation omitted). Second, under

the joint action test, Kamali makes only the conclusory allegation that Gray

implemented Caltrans’s exclusionary order without alleging any specific actions

taken by Gray to that end—a far cry from the “substantial degree of cooperation”

we have required to satisfy this test. Franklin, 312 F.3d at 445.

4. Lastly, the district court did not err in denying Kamali further leave to

amend because “any amendment would be an exercise in futility.” Steckman v.

Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998).

AFFIRMED.

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