                          NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                          FILED
                           FOR THE NINTH CIRCUIT                            OCT 23 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

MICHELLE JAUREGUITO,                           No. 11-17643

             Plaintiff - Appellant,            D.C. No. 2:06-cv-02687-KJM-
                                               GGH
  v.

FEATHER RIVER COMMUNITY                        MEMORANDUM*
COLLEGE,

             Defendant - Appellee.



PAUL THEIN,                                    No. 11-17651

             Plaintiff - Appellant,            D.C. No. 2:06-cv-01777-KJM-
                                               GGH
  v.

FEATHER RIVER COMMUNITY
COLLEGE,

             Defendant - Appellee.




        *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
LAUREL WARTLUFT,                                 No. 11-17653

              Plaintiff - Appellant,             D.C. No. 2:07-cv-02023-KJM-
                                                 GGH
  v.

FEATHER RIVER COMMUNITY
COLLEGE,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                      Argued and Submitted October 9, 2013
                            San Francisco, California

Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.

       Michelle Jaureguito (“Jaureguito”),1 Paul Thein (“Thein”), and Laurel Wartluft

(“Wartluft”) (collectively, “the Employees”) appeal the adverse summary judgment

grant on their retaliation claims brought under Title IX and the California Fair

Employment and Housing Act (“FEHA”) against Defendant-Appellee, Feather River

Community College (“FRCC”). We vacate and remand.

       The district court applied claim preclusion to the Employees’ Title IX and

FEHA retaliation claims based on a California State Personnel Board (“SPB”)


       1
        Plaintiff-Appellant Jaureguito has apparently changed her name since filing
her federal lawsuit and is proceeding as Michelle Henley in her California state court
action.
decision. On appeal, the Employees argued that claim preclusion did not apply

because FRCC consented to litigation in multiple fora, and they could not raise their

Title IX claim before the SPB. They argued that issue preclusion could not apply

because the issues in each proceeding were not identical.

      After the initial briefs were filed, we granted both parties leave to file

supplemental briefs on relevant new developments. The Employees argued that the

SPB decision cannot preclude their Title IX and FEHA retaliation claims because a

California Superior Court has since vacated this decision, thus eliminating the basis

for the district court’s application of claim preclusion. FRCC argues the Employees

have waived this issue because they failed to raise the pendency of an appeal of the

SPB decision in their opening brief.

      While we do not generally consider matters not properly raised in an opening

brief, Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986), we have

discretion to consider an issue not properly raised when the appellee has not been

misled and the issue has been fully explored, see Ellingson v. Burlington N., Inc., 653

F.2d 1327, 1332 (9th Cir. 1981), superseded by rule on other grounds as stated in

PAE Gov’t Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 859 n.3 (9th Cir. 2007). Here, the

issue of the SPB decision’s finality in light of the California Superior Court’s decision




                                           3
has been briefed and argued by both parties and FRCC has not been misled. We

therefore exercise our discretion to consider the issue.

      Under California law, a final decision on the merits must exist before claim or

issue preclusion can apply to a claim or issue in a subsequent proceeding. See Trujillo

v. Santa Clara County, 775 F.2d 1359, 1366 (9th Cir. 1985) (discussing California

claim preclusion requirements, including that the prior judgment must be final and on

the merits); Lucido v. Superior Court, 795 P.2d 1223, 1225 (Cal. 1990) (stating that

a threshold requirement for issue preclusion is that the decision in the former

proceeding be final and on the merits); see also Kay v. City of Rancho Palos Verdes,

504 F.3d 803, 808 (9th Cir. 2007) (“[I]n California the rule is that the finality required

to invoke the preclusive bar of res judicata is not achieved until an appeal from the

trial court judgment has been exhausted or the time to appeal has expired.” (quoting

Franklin & Franklin v. 7–Eleven Owners for Fair Franchising, 102 Cal. Rptr. 2d 770,

774 (Cal. Ct. App. 2000) (internal quotation mark omitted)). The SPB decision has

been vacated and is currently on appeal in state court. There is therefore no final

decision for preclusion purposes. Because this alone requires vacating summary

judgment, we need not address the Employees’ other arguments.

      The predicate for its entry having been vacated by action of the California

courts, the district court’s grant of summary judgment is vacated and the matter


                                            4
remanded with instructions to hold the action in abeyance pending final resolution of

the proceedings before the SPB and litigation attendant thereto. The parties’ motions

to take judicial notice of the pending California proceedings are GRANTED. Reyn’s

Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (The court

“may take judicial notice of court filings and other matters of public record.”).

      VACATED and REMANDED. Each party shall bear its own costs on appeal.




                                          5
