Alicia Wolin v. City of Los Angeles

FILED

NOT FOR PUBLICATION

APR 29 2013

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ALICIA WOLIN, No. 11-55817

Plaintiff-Appellant, Dist. Ct. No. 2:10-cv-08306-CBM-

PJW

v.

CITY OF LOS ANGELES, a municipality;

WILLIE WILLIAMS, BERNARD MEMORANDUM *

PARKS, WILLIAM J. BRATTON,

JAMES MCDONNELL,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, Senior District Judge, Presiding

Argued and Submitted February 15, 2013 Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and RAKOFF, Senior District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. Alicia Wolin appeals from the district court’s judgment in favor of

defendants in her action alleging that she was denied a promotion to Lieutenant of

the Los Angeles Police Department because of her gender.…

MEMORANDUM **

Alicia Wolin appeals from the district court’s judgment in favor of defendants in her action alleging that she was denied a promotion to Lieutenant of the Los Ange-les Police Department because of her gender. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo. Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir.2007).

This is Wolin’s second judicial proceeding challenging defendants’ alleged refusal to promote her to Lieutenant. Wolin previously petitioned the Superior Court of Los Angeles for a writ of mandate that would have overturned the administrative determination of the Los Angeles Police Department denying her claim for a promotion and back pay. After she lost in Superior Court and on appeal at the Court of Appeal, she brought the instant action alleging that the failure to promote has violated various state and federal laws. Because we conclude that Wolin’s claim is barred by the doctrine of res judicata, we affirm the district court’s judgment.

“It is settled that the doctrine of res judicata applies to judgments on the merits in proceedings in mandamus.” Hollywood Circle, Inc. v. Dep’t of Alcoholic Beverage Control,…

dissenting:

I respectfully dissent. The majority’s overall approach to the claim preclusion effect of a denial of mandamus is consistent with two of our prior cases, Takahashi v. Board of Trustees of Livingston Union School District, 783 F.2d 848 (9th Cir.1986), and Manufactured Home Communities Inc. v. City of San Jose, 420 F.3d 1022 (9th Cir.2005). But it is not consistent with an earlier opinion, Gallagher v. Frye, 631 F.2d 127 (9th Cir.1980). California case law after Gallagher is somewhat murky, but my reading of the California Supreme Court cases indicates that, were it to address the question, the California Supreme Court would hold that denials of mandamus can have issue but not claim preclusive effect as to causes of action sounding in tort, or, by analogy, § 1983 actions. See Kavanau v. Santa Monica Rent Control Bd., 16 Cal.4th 761, 779 , 66 Cal.Rptr.2d 672 , 941 P.2d 851 (1997) (citing exceptions to the general rule against splitting claims); Westlake Cmty. Hosp. v. Superior Court, 17 Cal.3d 465, 484 , 131 Cal.Rptr. 90 , 551 P.2d 410 (1976) (requiring mandamus review prior to institution of a tort action for denial of medical staff privileges); Hollywood Circle, Inc.…