Reuven RASOOLY, Plaintiff-Appellant, v. G. Boyd TARIN; State of California; Contra Costa County; Department of Child Support Services; Melinda R. Self, Defendants-Appellees, 691 F. App'x 432

MEMORANDUM 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 Tarín and Melinda R. Self (collectively, “Defendants”). We affirm. 1. The district court correctly dismissed Rasooly’s claims against Contra Costa County, Tarín, 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., 28 Cal.4th 888, 123 Cal.Rptr.2d 432, 51 P.3d 297, 301 (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, Selfs employer. See Citizens for Open Access to Sand & Tide, Inc. v. Seadrift Ass’n, 60 Cal.App.4th 1053, 71 Cal.Rptr.2d 77, 87 (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 Selfs 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., 158 Cal.App.4th 1668, 71 Cal.Rptr.3d 185, 196-98 (2008). Finally, the circumstances do not warrant an equitable exception to preclusion. See Jorgensen v. Jorgensen, 32 Cal.2d 13, 193 P.2d 728, 732 (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. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.