stating that the Bane Act “was intended to address only egregious interferences with constitutional rights, not just any tort”
How later courts described this case
- stating that the Bane Act “was intended to address only egregious interferences with constitutional rights, not just any tort”
- “[T]he clearly established inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition[.]’” (citation omitted)
- “To be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what [the official] is doing violates that right.’” (citation omitted)
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
B LEGAL, INC., a California corporation, No. 19-55530
Plaintiff-Appellant, D.C. No.
2:17-cv-05419-TJH-JEM
and
SLAM POMONA, LLC, MEMORANDUM*
Plaintiff,
v.
ANGELA TORRES; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Submitted October 13, 2020**
Pasadena, California
Before: GOULD and OWENS, Circuit Judges, and KORMAN,*** District Judge.
*
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).
***
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
B Legal, Inc., owner and operator of “Bare N’ Legal,” an adult cabaret club
(the “Club”), appeals from the district court’s summary judgment in its 42 U.S.C.
§ 1983 action against the City of Pomona (“City”) and Pomona Police Officer
Angela Torres (“Officer Torres”) alleging violation of its First Amendment rights.
“We review de novo a district court’s decision to grant summary judgment.”
Weber v. Allergan, Inc., 940 F.3d 1106, 1110 (9th Cir. 2019). As the parties are
familiar with the facts, we do not recount them here. We affirm.
1. The district court properly determined that B Legal’s claim that the City
violated its First Amendment rights by allegedly causing a billboard operator to
stop putting up B Legal’s advertisement was time-barred. B Legal failed to raise a
genuine dispute of material fact that the City interfered with its legal rights after
June 20, 2015, within the applicable limitations period. B Legal points to evidence
that it was unable to gets its billboard advertisement back up until 2017. However,
a “mere continuing impact from past violations is not actionable.” Knox v. Davis,
260 F.3d 1009, 1013 (9th Cir. 2001) (internal quotation marks and citation
omitted).
2. The district court also properly granted summary judgment on B Legal’s
claim that, during a legitimate code enforcement visit to the Club, Officer Torres
allegedly violated B Legal’s First Amendment rights by threatening, harassing, and
intimidating B Legal’s employees with the intent to retaliate against, obstruct, or
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chill B Legal’s rights. Specifically, B Legal provided evidence that Officer Torres
demanded identification from B Legal’s employees, told them that the Club was
illegal and that they should quit because there would be fines and citations that
would go on their records and they could get in trouble, and further told the
employees that the owners of the Club did not care about them and were lying to
them about how much trouble the employees could encounter.
The district court properly determined that Officer Torres was entitled to
qualified immunity because it was not clearly established that Officer Torres’
conduct violated B Legal’s First Amendment rights. See S.B. v. Cnty. of San
Diego, 864 F.3d 1010, 1015 (9th Cir. 2017) (“To be clearly established, ‘[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what [the official] is doing violates that right.’” (citation omitted)).
B Legal cites only Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986),
for the general proposition that public officials cannot retaliate against, obstruct, or
chill First Amendment rights, but the instant case involves a very different context.
See S.B., 864 F.3d at 1015 (“[T]he clearly established inquiry ‘must be undertaken
in light of the specific context of the case, not as a broad general proposition[.]’”
(citation omitted)). Unlike here, Gibson concerned police officers’ alleged
frequent low-altitude helicopter flights over the plaintiffs’ residence to inhibit one
plaintiff’s confrontational yet nonviolent political activities. See 781 F.2d at 1338.
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Thus, it was not clearly established that Officer Torres’ conduct violated B Legal’s
First Amendment rights, and the district court properly determined that Officer
Torres was entitled to qualified immunity.
3. Finally, summary judgment was proper on B Legal’s Bane Act claim.
The Bane Act allows civil actions for interference with federal or state
constitutional rights by “threat, intimidation, or coercion[.]” Cal. Civ. Code
§ 52.1(b); see also Jones v. Kmart Corp., 949 P.2d 941, 942 (Cal. 1998). B Legal
failed to raise a genuine dispute of material fact that Officer Torres’ alleged
conduct rose to the level of a Bane Act violation. See Shoyoye v. Cnty. of L.A., 137
Cal. Rptr. 3d 839, 849 (Ct. App. 2012) (stating that the Bane Act “was intended to
address only egregious interferences with constitutional rights, not just any tort”).
AFFIRMED.
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