                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 8 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEPHEN YAGMAN,                                 No.    17-55697

                Plaintiff - Appellant,          D.C. No. 2:16-cv-5944-JAK-E

 v.
                                                MEMORANDUM*
ERIC GARCETTI, individual and official
capacity; et al.,

                Defendants - Appellees.

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

                            Submitted August 3, 2018**
                               Pasadena, California

Before: BERZON and NGUYEN, Circuit Judges, and ZOUHARY,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
                                          1
      Stephen Yagman raises a third challenge to the constitutionality of the

procedures provided by the City of Los Angeles for contesting parking tickets. In

short verse, those procedures begin with an initial review of the parking citation. If

the citation is not cancelled, the contestant must deposit the amount of the penalty

to obtain a formal administrative hearing. And if the contestant does not prevail at

the administrative hearing, he or she may seek de novo review in the state superior

court. See Cal. Veh. Code §§ 40215, 40230.

      In his first lawsuit, Yagman claimed these procedures violated his due

process rights by depriving him of property without a hearing. He also alleged

malicious prosecution, conspiracy, Monell liability, and RICO violations. In a

published opinion, we held the City’s procedures were constitutionally adequate

under Mathews v. Eldridge, 424 U.S. 319 (1976), and Yagman’s other claims were

conclusory and could not be sustained given the lack of any predicate due process

violation by the City. Yagman v. Garcetti (Yagman I), 852 F.3d 859 (9th Cir.

2017).

      In his second lawsuit, Yagman repeated the same claims against the same

defendants, but added allegations that the City’s outsourcing of the initial review to

a non-governmental entity violated state law. He argued that this delegation made

the initial review a “legal nullity,” such that there effectively was no initial, pre-




                                            2
deprivation review. We held this claim was barred by res judicata. Yagman v.

Garcetti (Yagman II), 673 F. App’x 633 (9th Cir. 2017).

      In the present case, Yagman raises the same legal claims identified in his

prior lawsuits. But he now bases his claims on a “new” parking ticket issued in

September 2015.1 Yagman alleges that in contrast to the tickets at issue in his

previous cases, this time he paid the fine and requested an administrative hearing

to challenge the ticket but was never provided one. He therefore describes his

complaint as raising a distinct due process violation, rooted in a permanent rather

than temporary deprivation of property. Nevertheless, the district court dismissed

the Complaint based on res judicata. Yagman once again appeals.

      We review de novo a district court order granting judgment on the pleadings

under Federal Civil Rule 12(c). See Peterson v. California, 604 F.3d 1166, 1169

(9th Cir. 2010); see also Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047,

1051 (9th Cir. 2005) (“A district court’s judgment based upon res judicata is a

mixed question of law and fact in which legal issues predominate. Accordingly,

we review the district court’s order de novo.”). We may affirm a dismissal on any




1
 The Yagman III Complaint also references two of the parking tickets at issue in
Yagman I and II. But we summarily affirmed the district court order dismissing
Yagman’s claims as to those two tickets based on res judicata. See Docket 21.
                                          3
basis supported by the record, even if the district court relied on different grounds

or reasoning. Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999).

      1.     “Res judicata, or claim preclusion, prohibits lawsuits on ‘any claims

that were raised or could have been raised’ in a prior action.” Stewart v. U.S.

Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (emphasis in original) (quoting Owens

v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)). Res

judicata applies when there is (1) a final judgment on the merits, (2) identity or

privity between the parties, and (3) identity of claims. Id. To determine whether a

dispute concerns the same claims as prior litigation, we consider “(1) whether

rights or interests established in the prior judgment would be destroyed or impaired

by prosecution of the second action; (2) whether substantially the same evidence is

presented in the two actions; (3) whether the two suits involve infringement of the

same right; and (4) whether the two suits arise out of the same transactional

nucleus of facts.” Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02

(9th Cir. 1982) (quoting Harris v. Jacobs, 621 F.2d 341, 434 (9th Cir. 1980)).

“The last of these criteria is the most important.” Id. at 1202.

      The district court properly concluded that the first two elements are met:

Yagman I and II each proceeded to a final judgment on the merits, and the parties

in this case are either identical or in privity with those in the earlier cases. But

Yagman contends this case presents a new, unprecluded claim based on the


                                            4
September 2015 parking ticket, which was issued after he filed the Yagman I and II

complaints. See Howard v. City of Coos Bay, 871 F.3d 1032, 1040 (9th Cir. 2017)

(“[C]laim preclusion does not apply to claims that accrue after the filing of the

operative complaint.”).

      Yagman overstates the holding in Howard: a new factual event does not

necessarily give rise to a new legal claim where the challenge is to the same

ongoing procedure or policy and the new factual event is alleged “only as an

‘example’ of . . . [a] long-standing practice of non-compliance with [the law].”

Turtle Island Restoration Network v. U.S. Dep’t of State, 673 F.3d 914, 918 (9th

Cir. 2012). “[C]laim preclusion isn’t defeated where ‘[d]istinct conduct is alleged

only in the limited sense that every day is a new day, so doing the same thing today

as yesterday is distinct from what was done yesterday.’” Id. at 919 (second

alteration in original) (quoting In re Dual-Deck Video Cassette Recorder Antitrust

Litig., 11 F.3d 1460, 1464 (9th Cir. 1993)). Thus, to avoid the preclusive effect of

the judgments in Yagman I and II, Yagman must identify a factually different

procedure distinct from and occurring after the one alleged in his earlier

complaints. He argues that he has raised two such factually distinct circumstances.

      2.     First, Yagman alleges he was permanently deprived of his property

when he paid the penalty for the September 2015 ticket but never received a

hearing. He argues this claim is not precluded because the prospect of a permanent


                                          5
deprivation was not at issue in Yagman I or II. But the district court pleadings

reveal that Yagman is conflating two separate stages of the City’s procedures.

According to Yagman, the City first offered to cancel the ticket in exchange for

proof of a disabled person parking placard and payment of a $25 administrative

fee. See Cal. Veh. Code § 40226. Yagman provided the placard but refused to pay

the fee. Then, after an initial review, the City found the ticket valid, and offered

Yagman the opportunity to deposit the $63 penalty for the ticket and obtain an

administrative hearing. See Cal. Veh. Code § 40215. Yagman requested a hearing

but did not deposit the penalty by the deadline. The City assessed an additional

fine, consistent with its notice of delinquency. Yagman then paid the total amount

of the fine.

       Yagman alleged a rough outline of this series of events in the Complaint.

He fleshed out the details by attaching his correspondence with the City to his

opposition to the motion for judgment on the pleadings. See United States v.

Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“Even if a document is not attached to

a complaint, it may be incorporated by reference into a complaint if . . . the

document forms the basis of the plaintiff’s claim.”). In other words, the pleadings

demonstrate the City followed the same procedures that we previously held




                                           6
complied with the requirements of due process. The district court did not err in

dismissing this claim as precluded.

      3.     Second, Yagman claims the City’s practice of delegating the initial

review to a non-governmental entity is prohibited by state law. He argues that the

purportedly illegal delegation renders that review a “legal nullity,” or the

equivalent of “no review at all.” Our prior rulings on this issue may have caused

some confusion. We now clarify.

      In Yagman I, Yagman argued in the district court that the initial review was

“perfunctory” and “unfair” because—among other things—it was conducted by a

contractor rather than the City itself. Yagman v. Garcetti, Case No. 14-CV-2330

(C.D. Cal.) (Docket 32 at 14 n.4). We rejected that argument, concluding

“[n]othing in the Complaint plausibly suggests the initial reviews were conducted

unfairly.” Yagman I, 852 F.3d at 865. On that appeal, Yagman also attempted to

argue, for the first time, that the City’s delegation of the initial review violated the

California Vehicle Code and resulted in a “legal nullity.” We declined to consider

that argument because he failed to raise it below. Id. at 865 n.1.

      When Yagman raised the same argument in Yagman II, we affirmed the

district court’s determination that it was precluded. Yagman II, 673 F. App’x at

634. We do so yet again here. The procedure challenged in Yagman I and Yagman

II had not changed with regard to the use of a third-party contractor at the time


                                            7
Yagman received the ticket now challenged. See McClain v. Apodaca, 793 F.2d

1031, 1034 (9th Cir. 1986) (“[Plaintiff] cannot avoid the bar of res judicata merely

by . . . pleading a new legal theory.”).

        4.     Yagman’s remaining claims for malicious prosecution, conspiracy,

and RICO violations likewise are barred by res judicata. Further, his requests for

injunctive and declaratory relief are also moot, as the City no longer outsources the

initial review process.2

        AFFIRMED.




2
    The Motion to Take Judicial Notice (Docket 24) is granted.
                                           8
