                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 28 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PATRICK A. BOCKARI,                              No.   14-17043

              Plaintiff-Appellant,               D.C. No. 2:13-cv-00857-JAM-AC

 v.
                                                 MEMORANDUM*
CALIFORNIA VICTIM
COMPENSATION AND
GOVERNMENT CLAIMS BOARD,

              Defendant-Appellee.



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

                      Argued and Submitted October 19, 2016
                            San Francisco, California


Before: KLEINFELD and M. SMITH, Circuit Judges, and KRONSTADT,**
District Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable John A. Kronstadt, United States District Judge for the
Central District of California, sitting by designation.
      Plaintiff-Appellant Patrick A. Bockari (“Plaintiff”) appeals from the

dismissal of this action with prejudice by the district court. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      In this action, Plaintiff challenges Defendant-Appellee California Victim

Compensation and Government Claims Board’s (“Defendant”) award to him of

crime victim compensation pursuant to Cal. Gov. Code §§ 13950 et seq. He claims

that the award was insufficient. On appeal, Plaintiff argues that the district court

erred in dismissing the action for lack of subject matter jurisdiction. He contends

that the complaint presented claims for which there is federal question jurisdiction.

“We review de novo dismissals for lack of subject matter jurisdiction, favorably

viewing the facts alleged to support jurisdiction.” McNatt v. Apfel, 201 F.3d 1084,

1087 (9th Cir. 2000).

      A district court has subject matter jurisdiction over “all civil actions arising

under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

“A case ‘arises under’ federal law either where federal law creates the cause of

action or ‘where the vindication of a right under state law necessarily turn[s] on

some construction of federal law.’” Republican Party of Guam v. Gutierrez, 277

F.3d 1086, 1088 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Construction

Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)).


                                           2
       “[A] federal court may dismiss a federal question claim for lack of subject

matter jurisdiction only if: (1) ‘the alleged claim under the Constitution or federal

statutes clearly appears to be immaterial and made solely for the purpose of

obtaining jurisdiction’; or (2) ‘such a claim is wholly insubstantial and frivolous.’”

Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 975 (9th Cir. 2012)

(quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)). “Dismissal for lack of subject-

matter jurisdiction because of the inadequacy of the federal claim is proper only

when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of

th[e Supreme] Court, or otherwise completely devoid of merit as not to involve a

federal controversy.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)

(quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974)).

       The complaint in this action did not expressly cite any federal statutes or the

Constitution in connection with the claims it advanced. However, a “complaint need

not identify the statutory or constitutional source of the claim raised in order to

survive a motion to dismiss.” Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008).

The allegations of the complaint were sufficient to suggest the nature of the claimed

federal rights. Specifically, they referred to potential violations of federal regulations

related to “Americans With Disabilities.” This permitted the reasonable inference

that Plaintiff was seeking to assert claims under the Americans with Disabilities


                                             3
Act of 1990 (“ADA”), 42 U.S.C. § 12101. Furthermore, Plaintiff’s claim that

Defendant violated the ADA by awarding to him less compensation than he would

have received but for his disability, is neither wholly frivolous nor completely

devoid of merit. Therefore, the claims cannot be deemed ones that fail to raise a

controversy under federal law. Steel Co., 523 U.S. at 89. For these reasons, we

conclude that the district court erred in deciding that no subject matter jurisdiction

exists over this action.

      Plaintiff next contends that the district court erred in dismissing the

complaint because it sought to advance claims barred under the doctrine of res

judicata. He argues that under California law, which controls that issue, his claim is

not barred. “We review de novo a district court’s dismissal based on res judicata.”

Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002).

      Pursuant to the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738, “a

federal court must give to a state-court judgment the same preclusive effect as

would be given that judgment under the law of the State in which the judgment

was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81

(1984). Therefore, California law controls this issue. Maldonado v. Harris, 370

F.3d 945, 951 (9th Cir. 2004) (“We must therefore look to California law to

determine the preclusive effect of the state court judgment . . . .”).


                                            4
       The doctrine of res judicata, which under California law is also referred to as

claim preclusion, requires that “all claims based on the same cause of action must be

decided in a single suit; if not brought initially, they may not be raised at a later date.”

Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 897 (Cal. 2002). Under California

law, “[a] valid final judgment on the merits in favor of a defendant serves as a complete

bar to further litigation on the same cause of action.” Slater v. Blackwood, 543 P.2d

593, 594 (Cal. 1975) (citations omitted). “Claim preclusion arises if a second suit

involves: (1) the same cause of action (2) between the same parties (3) after a final

judgment on the merits in the first suit.” DKN Holdings LLC v. Faerber, 352 P.3d

378, 386 (Cal. 2015), reh’g denied (Aug. 12, 2015).

       To determine whether a later complaint presents the same cause of action

that was previously adjudicated, “California has consistently applied the ‘primary

rights’ theory, under which the invasion of one primary right gives rise to a single

cause of action.” Slater, 543 P.2d at 594 (citations omitted). In applying this rule,

“a cause of action is (1) a primary right possessed by the plaintiff, (2) a corresponding

primary duty devolving upon the defendant, and (3) a harm done by the defendant

which consists in a breach of such primary right and duty.” City of Martinez v.

Texaco Trading & Transp., Inc., 353 F.3d 758, 762 (9th Cir. 2003) (citing Citizens




                                              5
for Open Access to Sand and Tide, Inc. v. Seadrift Ass’n, 60 Cal. App. 4th 1053,

1067 (Cal. Ct. App. 1998)). Further,

      the “cause of action” is based upon the harm suffered, as opposed to the

      particular theory asserted by the litigant. Even where there are multiple

      legal theories upon which recovery might be predicated, one injury

      gives rise to only one claim for relief. Hence a judgment for the

      defendant is a bar to a subsequent action by the plaintiff based on the

      same injury to the same right, even though he presents a different legal

      ground for relief.

Slater, 543 P.2d at 594-95 (internal quotation marks and citations omitted).

      Six years before commencing this action against Defendant, Plaintiff sued

Defendant in the Sacramento County Superior Court seeking redress for the same

alleged injury that underlies the claims in this action. In the prior action, Plaintiff

claimed that the crime victim award made to him pursuant to Cal. Gov. Code

§ 13957.5 was in error. The basis for that claim was twofold. First, the award did not

calculate his lost income assuming that he would attain a position as a full-time

teacher. Second, the claim improperly deducted Supplemental Security Income

(“SSI”) disability payments that he was receiving pursuant to 42 U.S.C. §§ 1381 et

seq. The Superior Court dismissed that action with prejudice and entered a judgment


                                            6
from which Plaintiff did not appeal.1 The federal claims under the ADA, which Plaintiff

has advanced in this action, seek redress for the same primary rights that were pursued

in the prior state court action. Plaintiff challenges the same award on the same

grounds. Therefore, the present claims are barred. L.A. Branch NAACP v. L.A.

Unified Sch. Dist., 750 F.2d 731, 737 (9th Cir. 1984) (“California’s rule, however,

does not mean that different causes of action are involved just because relief may

be obtained under either state or federal law, or under either of two legal theories.”).

       The authorities cited by Plaintiff in support of a different outcome are

distinguishable. See Agarwal v. Johnson, 603 P.2d 58, 72 (Cal. 1979) (employment

discrimination claim gave rise to a different primary right than those for intentional

infliction of emotional distress and defamation, each of which involved distinct

damages); Fujifilm Corp. v. Yang, 223 Cal. App. 4th 326, 332 (Cal. Ct. App. 2014)

(“because breaching a contract inflicts harm on a legally protected interest different

from tortious conduct that renders uncollectable a judgment arising from the breach of

contract, two different primary rights arise.”). Nor do the fairness and public interest

exceptions to res judicata apply. Each is “extremely narrow.” Arcadia Unified Sch.



1
  We take judicial notice of the prior judgment of the Superior Court. See U.S. ex rel. Robinson
Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (“[W]e ‘may take
notice of proceedings in other courts, both within and without the federal judicial system, if
those proceedings have a direct relation to matters at issue.’”) (citation omitted).


                                               7
Dist. v. State Dep’t of Educ., 825 P.2d 438, 442 (Cal. 1992); see also, e.g., In re Di

Carlo’s Estate, 44 P.2d 562, 567 (Cal. 1935) (minor permitted to challenge

guardian’s accounting of funds, approved in a prior probate order, under public

interest exception, because “the ward is a person under legal disability and

ordinarily unable to protect himself against overreaching or other improper conduct

of the guardian”); San Diego Police Officers’ Assn. v. City of San Diego Civil Serv.

Com., 104 Cal. App. 4th 275, 279 (Cal. Ct. App. 2002) (“Under the public interest

exception, courts may permit relitigation of an issue of law concerning a public

entity’s ongoing statutory obligations that affect individuals and members of the

public not specifically before the court in the first litigation.”).

       Finally, Plaintiff argues that it was an abuse of discretion by the district

court to deny leave to amend the Complaint. In support of this position, Plaintiff

notes that he was a pro se litigant at that time. “We review the denial of an

opportunity to amend for abuse of discretion.” Sharkey v. O’Neal, 778 F.3d 767,

774 (9th Cir. 2015). “Pro se complaints are held to less stringent standards than

formal pleadings drafted by lawyers.” Jackson v. Carey, 353 F.3d 750, 757 (9th

Cir. 2003). “A district court, however, does not abuse its discretion in denying

leave to amend where amendment would be futile.” Flowers v. First Hawaiian

Bank, 295 F.3d 966, 976 (9th Cir. 2002). In this action, there was no abuse of


                                             8
discretion by the district court because leave to amend would have been futile. An

amended complaint could not have overcome the bar of res judicata.

      AFFIRMED.




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