Richard HERBERT, Plaintiff-Appellant, v. CVS PHARMACY, doing business as Garfield Beach CVS LLC; et al., Defendants-Appellees, 700 F. App'x 698

MEMORANDUM Richard Herbert appeals pro se from the district court’s

summary judgment in his action alleging discrimination under 42 U.S.C. § 1981 and state law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

summary judgment on the basis of res judicata. City of Martinez v. Texaco Trading & Transp., Inc., 353 F.3d 758, 761 (9th Cir. 2003). We affirm. The district court properly granted

summary judgment because Herbert’s prior small claims action was based on the same primary right, there was a final judgment on the merits, and the parties are in privity. See id. at 762 (elements of res judicata under California law); see also Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal.App.4th 901, 92 Cal.Rptr.2d 151, 155 (2000) (under California law, a small claims court judgment precludes further litigation on the same claim). We do not consider matters not specifí-'eally and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v.

Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.