Gail Harper v. Ryan Lugbauer , 709 F. App'x 849 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAIL HARPER, No. 14-15759
Plaintiff-Appellant, D.C. No. 3:11-cv-01306-JST
v.
MEMORANDUM*
RYAN LUGBAUER; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted September 21, 2017**
Before: SCHROEDER, HAWKINS, and N.R. SMITH, Circuit Judges.
Gail Harper appeals pro se from the district court’s summary judgment and
dismissal orders in her 42 U.S.C. § 1983 action alleging federal and state law
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Doe v.
Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009) (dismissal under Fed. R.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Civ. P. 12(b)(6) and summary judgment); Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1102 (9th Cir. 2003) (grant of an anti-SLAPP motion). We affirm.
The district court properly granted the City and County of San Francisco,
San Francisco Police Department, and individual police officers (“City
defendants”) motion to strike Harper’s claims under California Civil Code sections
51, 51.7, and 52.4 pursuant to California’s anti-SLAPP statute because the City
defendants met their prima facie burden of showing that each cause of action arose
out of protected activity and Harper failed to demonstrate a probability of
prevailing on the merits. See Vess, 317 F.3d at 1110 (two-step analysis under
California’s anti-SLAPP statute); Digerati Holdings, LLC v. Young Money Entm’t,
LLC, 123 Cal. Rptr. 3d 736, 747-48 (Ct. App. 2011) (litigation privilege precludes
liability arising from any communication made in judicial proceedings); Schaffer v.
City & County of San Francisco, 85 Cal. Rptr. 3d 880, 888-89 (Ct. App. 2008)
(anti-SLAPP insulates police from having to litigate plainly unmeritorious
lawsuits, the possibility of which would otherwise chill their ability to make
statements in connection with official proceedings, as their duties to the public
require); Baughman v. California, 45 Cal. Rptr. 2d 82, 89 (Ct. App. 1995) (“Under
Government Code section 821.6, the officers’ actions during the investigation were
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cloaked with immunity, even if they had acted negligently, maliciously or without
probable cause in carrying out their duties.”).
The district court properly dismissed Harper’s civil conspiracy claims
against Coyle and Page because Harper failed to allege facts sufficient to show
Coyle and Page entered into an agreement to commit a wrongful act. See Wasco
Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (elements
of civil conspiracy in California).
The district court properly dismissed as barred by the applicable statute of
limitations Harper’s § 1983 claims to the extent these claims were based on
conduct that took place prior to February 2009. See Canatella v. Van De Kamp,
486 F.3d 1128, 1132 (9th Cir. 2007) (for § 1983 claims, federal courts apply the
forum state’s statute of limitations; California’s statute of limitations is two years
for personal injury actions).
The district court properly dismissed as barred by the applicable statute of
limitations Harper’s defamation claims to the extent these claims were based on
conduct that took place prior to February 2010. See Shively v. Bozanich, 80 P.3d
676, 685 (Cal. 2003) (statute of limitations is one year for defamation); see also
Cal. Civ. Proc. Code §340(c).
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Contrary to Harper’s contentions, the statutes of limitations were not tolled
by virtue of the discovery rule or the continuing violation doctrine. See Fox v.
Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920-21 (Cal. 2005) (discovery rule);
Komarova v. Nat’l Credit Acceptance, Inc., 95 Cal. Rptr. 3d 880, 894-95 (Ct. App.
2009) (continuing violation doctrine); see also Canatella, 486 F.3d at 1132-33(federal courts apply forum state’s law regarding tolling).
With respect to Harper’s § 1983 claims that are not time-barred, the district
court properly granted summary judgment on the police retaliation, harassment
based on gender, “state-created” danger, and equal protection claims because
Harper failed to raise a genuine dispute of material fact as to whether her
constitutional rights were violated as a result of an official policy, practice, or
custom of the City. See Nigro v. Sears, Roebuck and Co., 784 F.3d 495, 497-98
(9th Cir. 2015) (“[The] district court can disregard a self-serving declaration that
states only conclusions and not facts that would be admissible evidence.”); City of
Los Angeles v. Heller, 475 U.S. 796, 699 (1986) (a Monell claim cannot survive in
the absence of an underlying constitutional violation); Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690-91 (1978) (setting forth requirements for municipal
liability and explaining a municipality cannot be held liable under § 1983 on a
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respondeat superior theory).
With respect to Harper’s defamation claims that are not time barred, the
district court properly granted summary judgment to defendants Coyle and Ertola
because Harper failed to raise a genuine dispute of material fact as to whether the
alleged statement made by Coyle and Ertola were defamatory. See Gardner v.
Martino, 563 F.3d 981, 986-87 (9th Cir. 2009) (setting forth test for whether an
allegedly defamatory statement is opinion, not objective fact, and therefore
protected by the First Amendment). The district court properly granted summary
judgment to defendant Ertola because Harper failed to raise a genuine dispute of
material fact as to whether Lugbauer made defamatory statements about Harper.
See Smith v. Maldonado, 85 Cal. Rptr. 2d 397, 402-03 (Ct. App. 1999) (elements
of defamation in California); Keenen v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)
(non-moving party must identify with reasonable particularity the evidence that
precludes summary judgment).
The district court properly granted summary judgment on Harper’s gender
violence claim under California Civil Code section 52.4 based on a conspiracy
theory of liability because Harper failed to establish any of the elements of
conspiracy. See People v. Johnson, 303 P.3d 379, 384 (Cal. 2013) (elements of
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conspiracy); see also Cal. Civ. Code § 52.4(c)).
The district court did not abuse its discretion in declining to consider
Harper’s evidence filed after her deadline to oppose summary judgment and in
excluding certain pieces of evidence on summary judgment. See N.D. Cal. Civ.
R. 7-3(d) (providing that once a reply to a motion for summary judgment is filed,
no additional papers may be filed without prior court approval); Bias v. Moynihan,
508 F.3d 1212, 1223 (9th Cir. 2007) (broad deference is given to a district court’s
interpretation of its local rules); Security Farms v. Int’l Bd. of Teamsters, 124 F.3d
999, 1011 (9th Cir. 1997) (standard of review); see also Hal Roach Studios, Inc. v.
Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1990) (unauthenticated
documents cannot be considered on summary judgment); Beyene v. Coleman Sec.
Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (only admissible evidence can be
considered in ruling on a motion for summary judgment). Even if the district court
erred in excluding certain documents, any error was harmless. See Sanchez v.
Aerovias De Mexico, C.A. De C.V., 590 F.3d 1027, 1029 (9th Cir. 2010) (reversal
of summary judgment not required if error is harmless).
The district court did not abuse its discretion in denying Harper’s third
request to extend the discovery deadline because Harper failed to show good cause
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as to why another extension of the deadline was needed. See Fed. R. Civ. P. 16(b);
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (setting forth
standard of review and explaining that moving party must show good cause to
modify scheduling order).
The district court did not abuse its discretion in granting attorney’s fees to
the City defendants. See Vess, 317 F.3d at 1102 (standard of review); Wilkerson v.
Sullivan, 121 Cal. Rptr. 2d 275, 277 (Ct. App. 2002) (a defendant who prevails on
an anti-SLAPP motion to strike is entitled to recover his or her attorney fees); see
also Cal. Civ. Proc. Code § 425.16(c)(1).
The district court did not abuse its discretion in granting costs to the City
defendants as a prevailing party. See Fed. R. Civ. P. 54(d)(1); In re Online DVD-
Rental Antitrust Litig., 779 F.3d 914, 924 (9th Cir. 2015) (standard of review).
In her original and supplemental opening briefs, Harper failed to challenge
the district court’s dismissal of all claims against defendants Brown and Gascon,
and the claims against defendant Ertola for violation of California Civil Code
sections 51.7 and 52.4. Therefore, Harper has waived any challenge as to the
dismissal of these claims. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999) (“[O]n appeal, arguments not raised by a party in its opening brief are
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deemed waived.”); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will
not manufacture arguments for an appellant . . . .”).
We reject as unsupported by the record Harper’s contentions that District
Judge Ware and District Judge Tigar exhibited gender bias against her. See
Clemens v. U.S. Dist. Court for the Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th
Cir. 2005) (test for disqualification of judge is “whether a reasonable person with
knowledge of all the facts would conclude that the judge’s impartiality might
reasonably be questioned” (citation and internal quotation marks omitted)); Taylor
v. Regents of the Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993) (adverse rulings
alone are insufficient to demonstrate judicial bias). To the extent Harper
challenges the district court’s order denying her motion for recusal, we conclude
there was no abuse of discretion. See 28 U.S.C. §§ 144, 455; Clemens, 428 F.3d at
1178.
AFFIRMED.
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