                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         APR 9 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

DOUGLAS A. LAWELLIN, an individual               No.    16-56181
and STEVEN ROHLIN, an individual,
                                                 D.C. No.
                Plaintiffs-Appellants,           5:13-cv-00731-JAK-SP

 v.
                                                 MEMORANDUM*
THE CITY OF INDIAN WELLS, a
Municipal Corporation; et al.,

                Defendants-Appellees.

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

                      Argued and Submitted February 7, 2018
                               Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and BATAILLON,**
District Judge.

      Douglas Lawellin and Stephen Rohlin (“Landowners”) appeal the district

court’s dismissal of their civil rights action as barred by collateral estoppel and/or

res judicata. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
      1.     We review de novo a dismissal under Federal Rule of Civil Procedure

12(b)(6) on the basis of res judicata. Manufactured Home Cmtys. Inc. v. City of

San Jose, 420 F.3d 1022, 1025 (9th Cir. 2005). “To determine the preclusive

effect of a state court judgment federal courts look to state law. California’s res

judicata doctrine is based on a primary rights theory.” Id. at 1031 (internal

citation omitted). “[I]f two actions involve the same injury to the plaintiff and the

same wrong by the defendant, then the same primary right is at stake even if in the

second suit the plaintiff pleads different theories of recovery, seeks different forms

of relief and/or adds new facts supporting recovery.” Brodheim v. Cry, 584 F.3d

1262, 1268 (9th Cir. 2009) (quoting Eichman v. Fotomat Corp., 197 Cal. Rptr.

612, 614 (Ct. App. 1983)).

      2.     The district court properly dismissed the Landowners’ equal

protection challenge to the hedge-height ordinance as barred by the doctrine of

claim preclusion because the claim was based on the same primary right—

enforceability of the ordinance—at issue in the prior state court nuisance

abatement action. See Furnace v. Giurbino, 838 F.3d 1019, 1025 (9th Cir. 2016),

cert. denied, 137 S. Ct. 2195 (2017) (affirming dismissal on claim preclusion

grounds where a challenge involved “the same actions by the same group of

officials at the same time that resulted in the same harm” (internal quotation marks

omitted)).


                                          2                                     16-56181
Appellants’ motion to take judicial notice, docket 30, is granted.

AFFIRMED.




                                   3                                 16-56181
