
    Richard HERBERT, Plaintiff-Appellant, v. CVS PHARMACY, doing business as Garfield Beach CVS LLC; et al., Defendants-Appellees.
    No. 16-56063
    United States Court of Appeals, Ninth Circuit.
    Submitted October 23, 2017 
    
    Filed October 30, 2017
    Richard Herbert, Pro Se
    Jeffrey M. Lenkov, Esquire, Robert P. Wargo, Esquire, Attorney, Manning & Kass, Ellrod, Ramirez, Trester LLP, Los Angeles, CA, for Defendants-Appellees CVS Pharmacy, Natalie Valerrama
    Jeffrey M. Lenkov, Esquire, Manning & Kass, Ellrod, Ramirez, Trester LLP, Los Angeles, CA, for Defendants-Appellees CVS Pharmacy, Inc., CVS RX Services, Inc.
    Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. , See Fed. R. App. P. 34(a)(2).
    
   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.
     