The opinion
FILED
NOT FOR PUBLICATION OCT 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEBORAH WESTWOOD; MITCHELL No. 11-35419
MYERS; PETAL PUSHERS & MORE,
LLC, an Oregon limited liability company, D.C. No. 2:09-cv-00478-BR
DBA Nookie’s Bistro & Spirits,
Plaintiffs - Appellants, MEMORANDUM *
v.
CITY OF HERMISTON; DANIEL
COULOMBE; CHRIS WASHBURN,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted October 11, 2012 **
Portland, Oregon
Before: SILVERMAN, CLIFTON, and N.R. SMITH, 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiffs Petal Pushers & More, Deborah Westwood, and Mitchell Myers,
the owners of a restaurant and bar in Hermiston, Oregon, named “Nookie’s,”
appeal the district court’s grant of summary judgment in favor of Defendants City
of Hermiston and Hermiston Police Chief Daniel Coulombe on all claims.
Reviewing de novo, we affirm.
1. Intentional Interference with Business Relationships
The district court properly granted summary judgment on Plaintiffs’ claim
that the City intentionally interfered with their business relationships with the
Oregon Liquor Control Commission and Nookie’s customers. With respect to
their relationships with the OLCC, even assuming that Westwood and Myers were
real parties in interest, the district court correctly ruled that Plaintiffs failed to show
actual interference with those relationships, as Nookie’s was still able to use its
liquor license to the fullest extent. Nookie’s remained open for business;
Plaintiffs’ license was neither revoked nor suspended; and Plaintiffs conceded that
the control plan that OLCC implemented did not have a negative impact on their
business. Plaintiffs simply did not suffer any harm. To the extent Plaintiffs have
argued that they incurred legal expenses, there is no evidence of a causal link
between the purported interference and these putative damages. See Allen v. Hall,
328 Or. 276, 281, 974 P.2d 199, 202 (1999) (en banc) (stating that the fifth element
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of a claim for intentional interference with a business relationship is “a causal
effect between the interference and the harm to the relationship or prospective
advantage”).
With respect to their relationships with Nookie’s customers, there was no
evidence that the alleged interference actually damaged those relationships. See id.
Plaintiffs failed to present evidence that Nookie’s lost any profit due to reduced
patronage.
2. Malicious Prosecution
We agree that summary judgment was warranted on Westwood’s state law
and § 1983 malicious prosecution claims. Viewing the facts in the light most
favorable to Westwood, the record supports the district court’s finding that the City
had probable cause to prosecute Westwood under Oregon Revised Statutes
§ 162.235 for obstructing police officers’ investigation of the July 22, 2007,
incident at Nookie’s. See Rogers v. Hill, 281 Or. 491, 497, 576 P.2d 328, 331-32
(1978) (en banc) (“The tort [of malicious prosecution] consists in initiating or
procuring criminal proceedings, from an improper motive and without probable
cause, against another who is not guilty of the offense charged, and who ultimately
gains a favorable termination of the proceedings.”). Even if Officer Golter did not
ask to enter the bar and Westwood did not intend to prevent him from doing so,
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Westwood admitted that, while standing at the entrance with a security guard and
making hand gestures, she told Officer Golter that he was not needed. Westwood
attributed her hand gestures to her habit of using her hands when she speaks.
Under the circumstances it was not unreasonable for Officer Golter to have thought
that Westwood was implying that she would not let him in to investigate and that
she had placed her hands up to block his entry. See Blandino v. Fischel, 179 Or.
App. 185, 191, 39 P.3d 258, 261 (Or. Ct. App. 2002) (“In the context of a
malicious prosecution claim, ‘probable cause’ refers to the subjective and
objectively reasonable belief that the defendant committed a crime.” (citing
Gustafson v. Payless Drug Stores Northwest, Inc., 269 Or. 354, 358, 525 P.2d 118
(1974))).
Nor did Westwood establish the elements of a §1983 malicious prosecution
claim. She failed to show malice or reckless disregard and did not rebut the
presumption of independent judgment. See Blankenhorn v. City of Orange, 485
F.3d 463, 482 (9th Cir. 2007). That Coulombe recommended prosecution and
issued a citation did not show that Deputy District Attorney Kemp was pressured
or given false information. See id. (“[The presumption of independent judgment]
may be rebutted by showing, for example, that the prosecutor was pressured or
caused by the investigating officers to act contrary to his independent judgment or
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that the investigating officers presented the prosecutor with information known by
them to be false.” (citation and internal quotation marks omitted)).
3. Procedural Due Process
We agree with the district court that Plaintiffs’ procedural due process claim
based on the deprivation of their property interest in goodwill failed because the
record contains no evidence of Nookie’s goodwill. Under Oregon law, “goodwill
may not be attributed to a business if there is no evidence in the record to support
it.” In re Marriage of McDuffy, 184 Or. App. 359, 364, 56 P.3d 449, 452 (Or. Ct.
App. 2002). We disagree with Plaintiffs that Defendants did not seek summary
judgment on that ground, as Defendants argued in their summary judgment motion
that Plaintiffs had offered “no proof that defendants’ actions caused the OLCC or
any other person to view plaintiffs in a more negative light.”
Defendants were also entitled to summary judgment on Plaintiffs’ other
procedural due process claims. We agree with the district court that there was no
evidence of injury, as Plaintiffs never actually lost an OLCC license, and,
assuming without deciding that Plaintiffs had a liberty interest in operating
Nookie’s, Plaintiffs fail to show how they were deprived of that interest.
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4. Equal Protection
Finally, Plaintiffs failed to demonstrate the necessary elements of a “class of
one” equal protection claim. See Gerhart v. Lake Cnty., Mont., 637 F.3d 1013,
1022 (9th Cir. 2011). Although the district court failed to consider Karen
Cranford’s declaration and Coulombe’s letter to the OLCC, that evidence, viewed
in the light most favorable to Plaintiffs, did not establish that Nookie’s was treated
differently than other similarly situated property owners. Plaintiffs failed to
provide, for example, evidence of the type or frequency of police activity directed
at other businesses in Hermiston. The district court properly granted summary
judgment on Plaintiffs’ equal protection claim.
Because Plaintiffs did not establish any constitutional violation, we do not
reach the issues of municipal liability and qualified immunity.
AFFIRMED.
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FILED
Westwood v. City of Hermiston, 11-35419 OCT 23 2012
MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, concurring in part and dissenting in part: U .S. C O U R T OF APPE ALS
As for the malicious prosecution counts, I would hold that Westwood came
forward with sufficient facts to survive summary judgment on the issue of whether
there was probable cause to arrest her for obstruction. Here, the facts are disputed.
If Westwood’s version is believed, Westwood did nothing more than talk to the
police officer at the front door of her establishment. She did not block his
entrance; she was not asked to move out of the way; she did not obstruct his view
of the interior; she did nothing illegal. She acknowledges that she speaks with her
hands as she talks, but ordinary gesticulation is no crime. To be sure, the officer
has a different version of the event, but taking the facts in the light most favorable
to Westwood, Suzuki Motor Corp. v. Consumers Union of U.S., 330 F.3d 1110,
1131-32 (9th Cir. 2003), there was no probable cause to arrest her. A jury must
decide what actually happened.
I agree with the majority that there was insufficient evidence to overcome
the presumption of prosecutorial independence as to the federal malicious
prosecution claim under Section 1983. However, with respect to the state
malicious prosecution claim, the lower court decided this question in Appellants’
favor under Oregon law, and there is no cross-appeal before us. Accordingly, I
would affirm the grant of summary judgment as to the federal malicious
prosecution claim, but reverse as to the state malicious prosecution claim. In all
other respects, I concur with the majority.