                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 12 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CARLA CARR, an individual,                       No.   16-56553

              Plaintiff-Appellant,               DC No. CV 16-0506 GHK

 v.

LOS ANGELES COUNTY                               MEMORANDUM*
DEPARTMENT OF AUDITOR-
CONTROLLER, a local public entity;
DOES,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                            Submitted March 6, 2018**
                               Pasadena, California

Before:      REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.

      Carla Carr appeals the district court’s dismissal on claim preclusion grounds

of her employment discrimination action against the Los Angeles County

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
Department of the Auditor-Controller (the “County”). Because Carr’s federal

action seeks redress for the same injuries as her prior state court lawsuit, which

was resolved against her on the merits, Carr’s federal action is barred by California

claim preclusion law. We therefore affirm.

      1.     Carr contends that her federal action involves a different primary right

than her California state court lawsuit. “In determining the preclusive effect of a

state-court judgment, this court must ‘refer to the preclusion law of the State in

which judgment was rendered.’” Diruzza v. Cty. of Tehama, 323 F.3d 1147, 1152

(9th Cir. 2003) (quoting Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S.

373, 380 (1985)). In California, res judicata applies 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 the prior proceeding.

People v. Barragan, 83 P.3d 480, 492 (Cal. 2004) (internal citations and quotation

marks omitted). Carr concedes that the second and third elements apply.

      To determine whether a claim is identical to a claim litigated in a prior

proceeding, California courts apply the “primary rights theory.” Boeken v. Philip

Morris USA, Inc., 230 P.3d 342, 348 (Cal. 2010). Under that theory, a “cause of

action is the right to obtain redress for a harm suffered, regardless of the specific



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remedy sought or the legal theory . . . advanced.” Id. “[T]he determinative factor

is the harm suffered. When two actions involving the same parties seek

compensation for the same harm, they generally involve the same primary right.”

Id.; accord Adam Bros. Farming, Inc. v. Cty. of Santa Barbara, 604 F.3d 1142,

1149 (9th Cir. 2010).

      Carr’s federal action is premised on the same injuries – the County’s adverse

employment actions – as her California state court lawsuit; the federal complaint

differs from the state complaint only in its allegations about the County’s

discriminatory motivations. The two lawsuits involve different legal theories, but

seek to vindicate the same primary rights. Moreover, Carr was aware of and able

to raise her race discrimination claims in state court. In fact, Carr alleged race

discrimination on charges filed with the California Department of Fair

Employment and Housing prior to her state court suit. Carr’s federal action is

therefore barred by California claim preclusion law.1

      2.     Carr also contends that her federal action is premised on different

harms than those litigated in state court because her substantive due process claim

seeks redress for the County’s racially discriminatory litigation conduct.


      1
             Because we affirm the district court’s dismissal on claim preclusion
grounds, we do not reach the County’s alternative argument that Carr’s federal
claims are barred by the statute of limitations.
                                           3
However, Carr’s complaint includes no factual allegations or legal contentions

related to the County’s conduct during the state court lawsuit or administrative

proceedings; it is entirely focused on the County’s adverse employment actions.

Carr has not identified any factual allegations suggesting that leave to amend to

develop her discriminatory litigation claim would be anything but futile.

Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1034 (9th Cir. 2008).

                                     •   !    •

      The judgment of the district court is AFFIRMED.




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