Club Level, Inc. v. City of Wenatchee

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUL 15 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

CLUB LEVEL, INC.; RYAN FILA, a No. 13-35781

single man,

D.C. No. 2:12-cv-00088-EFS

Plaintiffs - Appellants,

v. MEMORANDUM*

CITY OF WENATCHEE, a municipal

corporation; WENATCHEE POLICE

DEPARTMENT, an agency of the City of

Wenatchee; TOM ROBBINS, in his

individual capacity as Chief of the

Wenatchee Police Department; KEVIN

DRESKER, in his individual capacity as a

Captain of the Wenatchee Police

Department; CHERI SMITH, in her

individual capacity as a Sergeant of the

Wenatchee Police Department; MARK

HUSON, in his individual capacity of the

Wenatchee Police Department,

Defendants - Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

Edward F. Shea, Senior District Judge, Presiding

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

Argued and Submitted June 4, 2015

Seattle, Washington

Before: O’SCANNLAIN, EBEL**, and McKEOWN, Circuit Judges.

Ryan Fila and his nightclub, Club Level, appeal from the district court’s

grant of summary judgment in favor of the City of Wenatchee, the Wenatchee

Police Department, and several individual police officers (collectively, “the

defendants”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Fila argues that the defendants violated his constitutional right to pursue his

occupation of choice. To prevail on such a claim, Fila must show that he was

unable to pursue a career as a nightclub operator and that such inability was due to

official conduct that was “‘clearly arbitrary and unreasonable, having no

substantial relation to the public health, safety, morals, or general welfare.’”

Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 65 (9th Cir. 1994)

(quoting FDIC v. Henderson, 940 F.2d 465, 474 (9th Cir. 1991)).

Fila has not put forth any evidence showing that he was unable to pursue his

occupation of choice or that he was denied a license to operate his club, and his

argument that he need not do so is unpersuasive. See Henderson, 940 F.2d at 474.

**

The Honorable David M. Ebel, Circuit Judge for the U.S. Court of

Appeals for the Tenth Circuit, sitting by designation.

2

Moreover, even if we assumed that Fila was driven out of the nightclub

industry—or if we agreed that Fila need not satisfy the first prong of our Court’s

right to pursue an occupation test—Fila must still show that there exists a genuine

issue of material fact over whether the defendants’ conduct was reasonable. See

Wedges/Ledges, 24 F.3d at 65; Lebbos v. Judges of Superior Court, Santa Clara

Cnty., 883 F.2d 810, 818 (9th Cir. 1989). Here, the record demonstrates that the

defendants’ actions were neither arbitrary nor unreasonable, given the long history

of public disturbances associated with Club Level.

Because Fila failed to demonstrate that a genuine dispute of material fact

exists over 1) whether he was prohibited from pursuing a vocation as a nightclub

operator and 2) whether such a prohibition resulted from the defendants’ arbitrary

and unreasonable conduct, the district court correctly granted summary judgment

to the defendants on Fila’s substantive due process claim.

II

Fila claims that the defendants violated his First Amendment right to

association by interfering in his friendship with Stephyne Silvestre. The right of

intimate association protects only “highly personal relationships,” IDK, Inc. v.

Clark County, 836 F.2d 1185, 1193 (9th Cir.1988), but we have previously held

that “[t]he roommate relationship easily qualifies.” Fair Hous. Council of San

3

Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1221 (9th Cir. 2012).

Given that there is ample evidence in the record demonstrating that, for at least part

of the relevant time period, Fila and Silvestre were roommates, the district court

erred in granting the defendants’ motion for summary judgment on the ground that

Fila “failed to raise a genuine issue of material fact about whether Fila’s

relationship with Silvestre qualifies as a protected association.”

However, “we may affirm based on any ground supported by the record.”

Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

Here, Fila has failed to proffer evidence that he has suffered injury as a result of

the alleged police conduct. See Arnold v. Int’l Bus. Machs. Corp., 637 F. 2d 1350,

1355–56 (9th Cir. 1981) (noting that § 1983 claims require a plaintiff to show

injury that was proximately caused by the defendant’s conduct). Fila points to no

record evidence to support his allegation that police behavior caused him to

“sustain[] mental anguish as well as financial damages.”

Because Fila has failed to produce any evidence of injury as a result of the

police’s alleged interference in his relationship with Silvestre, the district court

properly granted summary judgment to the defendants on Fila’s First Amendment

claim. See id. at 1355 (“In a section 1983 cause of action the plaintiff must show

that the defendants have deprived him of a right.”).

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III

Fila claims that the defendants violated his constitutional right to be free

from unreasonable searches. To prevail on such a claim, Fila must show that he

had a subjective expectation of privacy in the area searched and that such

expectation was objectively reasonable. See United States v. Ziegler, 474 F.3d

1184, 1189 (9th Cir. 2007). While a reasonable expectation of privacy exists in a

commercial setting, it “is different from, and indeed less than, a similar expectation

in an individual’s home.” New York v. Burger, 482 U.S. 691, 700 (1987).

Moreover, such a reasonable expectation “is particularly attenuated in . . . ‘closely

regulated’ industries,” such as state-licensed, liquor-serving nightclubs. Id.

In light of Washington law regulating liquor licensing, Fila and Club Level

did not have a reasonable expectation of privacy in a cordoned-off area of Club

Level that was open to club employees. See Wash. Rev. Code § 66.28.090 (“All

licensed premises used in the manufacture, storage, or sale of liquor . . . shall at all

times be open to inspection by any liquor enforcement officer, inspector or peace

officer.”); Wash. Admin. Code § 314–01–005 (defining “[l]icensed premises” as

“all areas of a premises under the legal control of the licensee and available to or

used by customers and/or employees in the conduct of business operations”

5

(emphasis added)). Therefore, the district court properly granted summary

judgment to the defendants on Fila’s Fourth Amendment claim.

IV

Finally, Fila and Club Level challenge the district court’s order denying their

third motion to compel discovery. We review a trial court’s rulings on discovery

disputes for abuse of discretion. Childress v. Darby Lumber, Inc., 357 F.3d 1000,

1009 (9th Cir. 2004).

Entries in the Ninth Amended Privilege Log (“the Log”) pertaining to

privileged emails disclosed the nature of the correspondence, the date of sending,

the sender and recipient(s), and a brief statement describing the subject of the

content. See In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992)

(stating that privilege log containing such information sufficed to assert attorney-

client privilege). Because the district court reasonably determined that the Log

complied with the requirements of Federal Rule of Civil Procedure 26(b)(5), it did

not abuse its “broad discretion” when it denied the Fila’s third motion to compel.

Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).1

AFFIRMED.

1

Because each of Fila’s claims fails on the merits, we need not address

qualified immunity.

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