                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 29 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TARAH SAHLBERG,                                  No. 13-35651

              Plaintiff - Appellant,             D.C. No. 2:12-cv-01457-RSL

 v.
                                                 MEMORANDUM*
P.S.C. INC.; ADAMS & ADAMS LAW,
P.S.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding

                     Argued and Submitted September 3, 2015
                              Seattle, Washington

Before: McKEOWN, GOULD, and N.R. SMITH, Circuit Judges.

      Tarah Sahlberg appeals the district court’s summary judgment dismissing

her claims against P.S.C., Inc. and Adams & Adams Law under the Fair Debt

Collection Practices Act (FDCPA) and the Washington Consumer Protection Act

(CPA). In 2012, Adams & Adams brought a collection action on behalf of its


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
client P.S.C. against Sahlberg in King County Superior Court. Sahlberg raised

affirmative defenses, including violations of the FDCPA and the CPA. The

Superior Court granted summary judgment in favor of P.S.C. Weeks later,

Sahlberg filed this suit in federal court alleging violations of the FDCPA and CPA

against P.S.C. and Adams & Adams. The district court granted summary judgment

on the grounds of res judicata and collateral estoppel. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.1

      We review a grant of summary judgment de novo. Clark v. Bear Stearns &

Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992). We apply Washington State law to

determine the preclusive effect of the state court judgment. See Kremer v. Chem.

Constr. Corp., 456 U.S. 461, 466 (1982); 28 U.S.C. § 1738. Under Washington

law, res judicata “prohibits the relitigation of claims and issues that were litigated,

or could have been litigated, in a prior action.” Pederson v. Potter, 11 P.3d 833,

835 (Wash. Ct. App. 2000) (citing Loveridge v. Fred Meyer, Inc., 887 P.2d 898,

900 (Wash. 1995) (en banc)). For a subsequent action to be barred by res judicata,

the prior judgment must be a final judgment on the merits, and the prior and

subsequent actions must have identical (1) persons and parties, (2) causes of action,

(3) subject matter, and (4) quality of persons for or against whom the claim is

      1
          We also deny Sahlberg’s Motion for Leave to File Supplemental Brief.

                                            2
made. Id. In considering whether two causes of action are identical, Washington

courts consider: “(1) [W]hether 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.” Rains v. State, 674 P.2d 165, 168

(Wash. 1983) (en banc) (quoting Constantini v. Trans World Airlines, 681 F.2d

1199, 1201–02 (9th Cir. 1982)).

      Sahlberg’s claims against P.S.C. are barred by res judicata. The state court’s

entry of summary judgment in favor of P.S.C. was a final judgment on the merits.

See Ensley v. Pitcher, 222 P.3d 99, 103 (Wash. Ct. App. 2009). Both the prior

state court litigation and the subsequent federal court litigation involved Sahlberg

and P.S.C., so there are identical parties and quality of persons in both actions.

Pederson, 11 P.3d at 838. The subject matter of the affirmative defenses to the

state suit and the federal claims here is the same. There are also identical causes of

action: P.S.C.’s rights established in the state court judgment would be impaired by

Sahlberg’s federal court action, and both suits present substantially the same

evidence, involve the infringement of the same rights, and arise from the same

transactional nucleus of facts. Although Sahlberg asserted the FDCPA and CPA


                                           3
claims as affirmative defenses, under Washington law the doctrine of res judicata

applies equally to claims and affirmative defenses. See Symington v. Hudson, 243

P.2d 484, 488 (Wash. 1952); Fed. Deposit Ins. Corp. v. Davidyuk, No. C13-

1592JLR, 2014 WL 2893309, at *11 (W.D. Wash. June 25, 2014).

      We next address the claims relating to Adams & Adams. Under Washington

law, collateral estoppel applies when the following elements are met: “(1) identical

issues; (2) a final judgment on the merits; (3) the party against whom the plea is

asserted must have been a party to or in privity with a party to the prior

adjudication; and (4) application of the doctrine must not work an injustice on the

party against whom the doctrine is to be applied.” Southcenter Joint Venture v.

Nat’l Democratic Policy Comm., 780 P.2d 1282, 1284 (Wash. 1989) (en banc)

(quoting Shoemaker v. Bremerton, 745 P.2d 858, 860 (Wash. 1987) (en banc)).

The issue must also have been material and essential to the first judgment. See

East v. Fields, 259 P.2d 639, 640 (Wash. 1953) (en banc). Washington courts

“apply nonmutual collateral estoppel so long as the party against whom preclusion

is sought was a party or in privity with a party to the prior litigation and had a full

and fair opportunity to litigate the issue in question.” State v. Mullin-Coston, 95

P.3d 321, 324 (Wash. 2004) (en banc). Although res judicata bars claims that

could have been raised in a prior action, Pederson, 11 P.3d at 835, collateral


                                            4
estoppel bars issues that were previously raised and litigated. Yakima Cnty. v.

Yakima Cnty. Law Enforcement Officers Guild, 237 P.3d 316, 331 (Wash. Ct. App.

2010).

      Sahlberg’s claims against Adams & Adams are barred by collateral estoppel.

The issues raised are identical to those raised in the state court, where Sahlberg’s

counsel alleged violations of the FDCPA and CPA as affirmative defenses.

Summary judgment is a final judgment on the merits. Sahlberg, the party against

whom collateral estoppel is asserted, was a party in the prior adjudication. There is

no injustice to Sahlberg, who had the opportunity to litigate her FDCPA and CPA

claims in the prior state court action. The state court decision, rendering summary

judgment for P.S.C. against Sahlberg, necessarily rejected the affirmative defenses

that Sahlberg had raised. This rejection of the affirmative defenses based on the

FDCPA and CPA claims was material and essential to the state court’s decision to

award summary judgment. The issues were actually litigated, and collateral

estoppel applies to preclude claims here against Adams & Adams based on the

FDCPA and CPA.

      AFFIRMED.




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