Zabasky v. American International Group, Inc. , 517 F. App'x 572 ( 2013 )

FILED
NOT FOR PUBLICATION APR 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN T. ZABASKY, an individual, ) No. 11-57111
)
Plaintiff – Appellant, ) D.C. No. 2:11-cv-03806-GW-RZ
)
v. ) MEMORANDUM*
)
AMERICAN INTERNATIONAL )
GROUP, INC., a Delaware )
corporation; AMERICAN HOME )
ASSURANCE CO., a New York )
corporation; LOS ANGELES )
COUNTY DISTRICT ATTORNEYS )
OFFICE, a Public Entity, )
)
Defendants – Appellees. )
)
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted April 10, 2013**
Pasadena, California
Before: FERNANDEZ, RAWLINSON, and BYBEE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
John T. Zabasky appeals the district court’s dismissal of his claims against
American International Group, Inc. and American Home Assurance Co. (hereafter
collectively AIG) for malicious prosecution, and his 42 U.S.C. § 1983 claims
against the Los Angeles County District Attorney’s Office (DAO). We affirm.
(1) Zabasky contends that the district court erred when it granted AIG’s
motion to dismiss pursuant to California’s anti-SLAPP law. See Cal. Civ. Proc.
Code § 425.16. We disagree. Because in this diversity action we must apply
California’s anti-SLAPP law,1 which covers Zabasky’s claim for malicious
prosecution,2 he was required to “‘demonstrate[] a probability of prevailing on the
claim.’”3 He did not. The evidence he presented4 did not suffice to set out a prima
1
Price v. Stossel, 620 F.3d 992, 999 (9th Cir. 2010).
2
Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 734–35, 74 P.3d 737,
741, 3 Cal. Rptr. 3d 636, 641 (2003); Johnson v. Ralphs Grocery Co., 204 Cal.
App. 4th 1097, 1104–05, 139 Cal. Rptr. 3d 396, 402–03 (2012); Dickens v.
Provident Life & Accident Ins. Co., 117 Cal. App. 4th 705, 714, 11 Cal. Rptr. 3d
877, 882–83 (2004).
3
Jarrow, 31 Cal. 4th at 733, 74 P.3d at 740, 3 Cal. Rptr. 3d at 639.
4
See HMS Capital, Inc. v. Lawyers Title Co., 118 Cal. App. 4th 204, 212, 12
Cal. Rptr. 3d 786, 791–92 (2004).
2
facie case5 that AIG supplied false information to the authorities,6 or that it lacked
probable cause when it made a report,7 or that it acted with malice.8 In short,
AIG’s anti-SLAPP motion was properly granted.
(2) Zabasky next contends that the district court erred when it granted
judgment on the pleadings9 to the DAO; we, again, disagree. In prosecuting
Zabasky, the DAO was acting as a State of California office and was immune
under the Eleventh Amendment to the United States Constitution. See Weiner v.
San Diego County, 210 F.3d 1025, 1031 (9th Cir. 2000); see also Beentjes v.
Placer Cnty. Air Pollution Control Dist., 397 F.3d 775, 777 (9th Cir. 2005). Thus,
5
See Price, 620 F.3d at 1000.
6
See Sullivan v. County of Los Angeles,12 Cal. 3d 710, 720, 527 P.2d 865,
871, 117 Cal. Rptr. 241, 247 (1974). AIG gave information to the California
Department of Insurance and to the DAO.
7
See Johnson, 204 Cal. App. 4th at 1105–06, 139 Cal. Rptr. 3d at 404
(probable cause is satisfied if the actions of the defendant were objectively
reasonable); Ecker v. Raging Waters Grp., Inc., 87 Cal. App. 4th 1320, 1330, 105
Cal. Rptr. 2d 320, 326 (2001) (same).
8
See Downey Venture v. LMI Ins. Co., 66 Cal. App. 4th 478, 494, 78 Cal.
Rptr. 2d 142, 150–51 (1998). We note, by the way, that AIG was under a state
imposed duty to report suspected fraud. See Cal. Ins. Code § 1877.3; Fremont
Comp. Ins. Co. v. Superior Court, 44 Cal. App. 4th 867, 874, 52 Cal. Rptr. 2d 211,
216 (1996).
9
Fed. R. Civ. P. 12(c).
3
Zabasky’s action against the DAO was properly dismissed.10
AFFIRMED.
10
Zabasky now claims that he should have been granted leave to amend to
spell out a claim for injunctive relief against the DAO. Suffice it to say that he
never requested that relief in the district court. We decline to consider the issue for
the first time on appeal. See Alaska v. United States, 201 F.3d 1154, 1163–64 (9th
Cir. 2000); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
4