Aaron Raiser v. Ventura College of Law , 488 F. App'x 219 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AARON RAISER, Nos. 10-55097
10-55362
Plaintiff - Appellant, 10-55619
v. D.C. No. 2:09-cv-00254-RGK-
AGR
VENTURA COLLEGE OF LAW; et al.,
Defendants - Appellees. MEMORANDUM *
Appeals from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
In these consolidated appeals, Aaron Raiser appeals pro se from the district
court’s judgment dismissing his action alleging various federal and state law
violations arising from his expulsion from Ventura College of Law. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Raiser’s
request for oral argument is denied.
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
state a claim, Miller v. Yokohama Tire Corp., 358 F.3d 616, 619 (9th Cir. 2004),
and for an abuse of discretion a denial of leave to amend, Chodos v. W. Publ’g Co.,
292 F.3d 992, 1003 (9th Cir. 2002). We may affirm on any ground supported by
the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th
Cir. 2008). We affirm in part, and reverse and remand in part.
Dismissal of the extortion claim and the breach of covenant of good faith
and fair dealing claim was proper because the communications at issue are
absolutely privileged under California Civil Code § 47(b). See Hagberg v. Cal.
Fed. Bank, FSB, 81 P.3d 244, 255 (Cal. 2004) (applying litigation privilege to
communications “intended to instigate official governmental investigation into
wrongdoing, including police investigation”); Blanchard v. DIRECTV, Inc.,
20 Cal. Rptr. 3d 385, 396-98 (Ct. App. 2004) (applying litigation privilege to
prelitigation communications by attorneys).
The district court properly dismissed with prejudice Raiser’s 42 U.S.C.
§§ 1983 and 1985 claims because Raiser does not have a right to practice law
before a federal court that is protected by the Constitution or federal statutory law.
See Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (“To state
a claim under § 1983, a plaintiff must allege . . . that a right secured by the
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Constitution or laws of the United States was violated.”); Giannini v. Real, 911
F.2d 354, 358 (9th Cir. 1990) (“[T]here is no fundamental right to practice law or
to take the bar examination.”); Caldeira v. County of Kauai, 866 F.2d 1175, 1182
(9th Cir. 1989) (“[T]he absence of a section 1983 deprivation of rights precludes a
section 1985 conspiracy claim predicated on the same allegations.” (citations
omitted)).
The district court properly dismissed with prejudice Raiser’s intentional
interference with prospective business opportunity (“IIEPO”) claim because Raiser
failed to allege a specific economic relationship with which defendants purportedly
interfered and has not demonstrated that amendment of the complaint would cure
this defect. See Blank v. Kirwan, 703 P.2d 58, 70 (Cal. 1985) (potential future
relationship between plaintiff and a class of unknown patrons could not be
characterized as an “economic relationship” with the probability of “future
economic benefit” to support IIEPO claim).
The district court properly dismissed with prejudice the breach of contract
claim related to Raiser’s removal from a class and the revision of his curriculum
because the curriculum agreement attached to the first amended complaint, upon
which Raiser relies, does not prohibit changing his curriculum. See Durning v.
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First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (court may consider
documents attached to the complaint).
However, at this early stage, dismissal of the breach of contract claim related
to the failure to provide Raiser with a non-academic expulsion hearing was
improper because, under California law, inability to show actual damages does not
preclude recovery for breach of contract. See Cal. Civ. Code § 3360 (“When a
breach of duty has caused no appreciable detriment to the party affected, he may
yet recover nominal damages.”); Sweet v. Johnson, 337 P.2d 499, 500 (Cal. Ct.
App. 1959) (plaintiff entitled to recover nominal damages for breach of a contract
despite inability to show actual damage). That Raiser may have lied on his
application for admission does not negate his right to a hearing because the policy
manual, which Raiser alleges was part of the contract between himself and Ventura
College of Law, provides for a hearing.
Dismissal of the Americans with Disabilities Act (“ADA”) claim was
improper because Raiser alleged facts sufficient to state a violation of the ADA.
See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (setting
forth elements of Title II ADA claim); see also 42 U.S.C. § 12102(1)(A), (C)
(“disability” under the ADA includes having, or being regarded as having, a
physical or mental impairment); Del. State Coll. v. Ricks, 449 U.S. 250, 258-59
4 10-55097
(1980) (statute of limitations begins to run on date plaintiff receives notice of the
discriminatory act).
In denying Raiser’s motion for leave to amend, it does not appear that the
district court considered the new claims raised in Raiser’s proposed second
amended complaint for fraud, intentional misrepresentation, false promise, breach
of confidence, and state civil rights. On remand, the district court should consider
in the first instance whether these proposed claims sufficiently state a claim for
relief, and whether there is undue delay, prejudice, or other grounds for denying
leave to amend. See Moore v. Kayport Package Express, 855 F.2d 531, 538 (9th
Cir. 1989) (discussing factors to consider in denying leave to amend).
We do not consider issues that were not raised or not supported by argument
in the opening brief. See Rattlesnake Coalition v. U.S. EPA, 509 F.3d 1095, 1100
(9th Cir. 2007).
The parties’ remaining contentions, including Raiser’s contentions regarding
his recusal motions, are unpersuasive.
Raiser’s motion to reconsider this court’s order denying remand is denied.
Appellees’ request for judicial notice is denied as unnecessary.
Each party shall bear its own costs on appeal.
AFFIRMED in part; REVERSED and REMANDED in part.
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