                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 24 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

REUVEN RASOOLY,                                  No.   15-16213

              Plaintiff-Appellant,               D.C. No. 3:14-cv-04521-JSC

 v.
                                                 MEMORANDUM*
G. BOYD TARIN; STATE OF
CALIFORNIA; CONTRA COSTA
COUNTY; DEPARTMENT OF CHILD
SUPPORT SERVICES; MELINDA R.
SELF,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                Jacqueline Scott Corley, Magistrate Judge, Presiding

                             Submitted May 16, 2017**
                              San Francisco, California

Before: CANBY and MURGUIA, Circuit Judges, and RUFE,*** 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Cynthia M. Rufe, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
      Reuven Rasooly appeals the district court’s dismissal with prejudice of his

42 U.S.C. § 1983 action against the State of California, the California Department

of Child Support Services (“DCSS”), Contra Costa County, and two Contra Costa

County employees, G. Boyd Tarin and Melinda R. Self (collectively,

“Defendants”). We affirm.

      1. The district court correctly dismissed Rasooly’s claims against Contra

Costa County, Tarin, and Self under Federal Rule of Civil Procedure 12(b)(6) as

barred by res judicata. Rasooly’s federal action involves the “same cause of

action,” i.e. the same primary right, as his state court suit—a right to recoup

payments alleged to have been wrongly collected by Defendants. See San Diego

Police Officers’ Ass’n v. San Diego City Emps. Ret. Sys., 568 F.3d 725, 734 (9th

Cir. 2009). While Rasooly purports to allege different damages in his Second

Amended Complaint, those additional fees are derivative of Defendants’ initial

collection.

      The parties to Rasooly’s federal and state court actions are either the same or

in privity. See Mycogen Corp. v. Monsanto Co., 51 P.3d 297, 301 (Cal. 2002). All

of the Defendants except Self were parties to Rasooly’s suit in state court. Self is

in privity with two parties to the state court litigation: Linda Dippel and Contra

Costa County, Self’s employer. See Citizens for Open Access to Sand & Tide, Inc.


                                           2
v. Seadrift Ass’n, 71 Cal. Rptr. 2d 77, 87 (Ct. App. 1998). Dippel and Self were in

the same legal position as supervisors of Tarin’s actions in the DCSS child support

collection proceeding against Rasooly. See id. at 90 n.12. Contra Costa County, as

Self’s employer, is vicariously liable for actions taken by Self within the scope of

her employment. Cal. Gov. Code § 815.2. Vicarious liability is sufficient to

establish privity here; Self would have been entitled to assert the same

prosecutorial and litigation immunities invoked by the County in the earlier

litigation. See Burdette v. Carrier Corp., 71 Cal. Rptr. 3d 185, 196–98 (Ct. App.

2008). Finally, the circumstances do not warrant an equitable exception to

preclusion. See Jorgensen v. Jorgensen, 193 P.2d 728, 732 (Cal. 1948).

      2. The district court dismissed Rasooly’s claims against the State of

California and DCSS as barred by the Eleventh Amendment. Rasooly waived this

issue by failing to address it in his briefing. Armentero v. I.N.S., 412 F.3d 1088,

1095 (9th Cir. 2005).

      AFFIRMED.




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