FILED
NOT FOR PUBLICATION FEB 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAIME ALVAREZ; et al., No. 09-55001
Plaintiffs - Appellants, D.C. No. 2:00-cv-03048-PA-RC
v.
MEMORANDUM *
CITY OF SAN BERNARDINO, a
Municipal Corporation; et al.,
Defendants - Appellees,
and
JULIO ESTRADA,
Defendant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted February 11, 2011
Pasadena, California
Before: GOODWIN, D.W. NELSON, 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.
Jaime Alvarez, Marisela Labastida, and Alvarez & Associates (Plaintiffs)
appeal the district court’s grant of summary judgment for Defendants on three
claims under 42 U.S.C. §§ 1981, 1983, and 1985.1
A. The district court properly dismissed the § 1981 claim. Plaintiffs have
not introduced evidence that Defendants prevented them from making or enforcing
contracts, or that they did so on the basis of race. See 42 U.S.C. § 1981; Evans v.
McKay, 869 F.2d 1341, 1344 & n.2 (9th Cir. 1989). In order to show racial
discrimination, Plaintiffs must show that Defendants acted with discriminatory
purpose, and that it had a discriminatory effect. United States v. Armstrong, 517
U.S. 456, 465 (1996). Discriminatory effect can be shown by demonstrating that
similarly situated persons of other races were not prosecuted. Id. Plaintiffs did not
show that “the conditions and practices to which [the investigation] was directed
did not exist exclusively among [a particular racial group], or that there were other
offenders” who were not prosecuted. Id. at 466 (quoting Ah Sin v. Wittman, 198
U.S. 500, 507-08 (1905)). Although Plaintiffs allege that no other Acquisition,
1
Plaintiffs did not raise the retaliation claim in the opening brief. Issues not
specifically and distinctly argued in the opening brief are waived, Greenwood v.
F.A.A., 28 F.3d 971, 977 (9th Cir. 1994), and we decline to address this issue.
Plaintiffs did not file a notice of appeal of the district court’s order excluding the
declaration of Julio Estrada. See Fed. R. App. P. 3(a)(1) (“An appeal . . . may be
taken only by filing a notice of appeal . . . .”). Therefore, we do not address that
issue.
2
Rehabilitation, and Resale program developers were prosecuted, they provide no
evidence that those developers were “other offenders.” Nor do they show that any
of the other Hispanic developers were prosecuted (on the basis of race or
otherwise). Without evidence of a discriminatory effect, Plaintiffs’ claims must
fail.
B. The district court did not err in dismissing the § 1983 claim. Plaintiffs
did not introduce sufficient evidence for a reasonable jury to find (1) that
Defendants subjected them to criminal charges based on false evidence or (2) that
Defendants’ alleged defamation deprived them of business goodwill.
1. A reasonable jury could not find that Plaintiffs were subjected to
criminal charges on the basis of fabricated or coerced evidence, or that
investigators ignored exculpatory evidence. Devereaux v. Abbey, 263 F.3d 1070,
1074-76 (9th Cir. 2001). Assuming as true that Cisneros’s statement was
fabricated, the criminal complaint did not rely on Cisneros’s statement, and
probable cause existed independent of her statement. See Tomer v. Gates, 811
F.2d 1240, 1242 (9th Cir. 1987); see also Franks v. Delaware, 438 U.S. 154, 155-
56 (1978). Assuming Defendants used coercive tactics when interviewing some
witnesses, the record does not show that the evidence given was false or that it was
incriminating. In particular, Estrada affirmed in his deposition that the information
3
he gave investigators in the video was true. The evidence (which Plaintiffs allege
is exculpatory) shows only that others may have been involved in falsifying
information, not that Plaintiffs did not participate in filing false loan applications.
As such, it was insufficient to show Defendants should have known Plaintiffs were
innocent and should have stopped the investigation. Therefore, there was no
constitutional violation.
2. Defendants’ defamation of Plaintiffs to banks and individuals did not
deprive Plaintiffs of the goodwill of their business. Damage to a property interest
must arise from affirmative conduct beyond the defamatory statements themselves.
Affirmative conduct includes revoking a right or changing a status held by the
plaintiff or taking direct action to prevent continued patronage of the business.
WMX Techs., Inc. v. Miller, 197 F.3d 367, 375 (9th Cir. 1999) (en banc). Although
patrons may be less likely to patronize a company because of the defamation, this
is a result of the damage to the business’s reputation, not a deprivation of goodwill.
Id. at 375-76. Defendants did not deprive Plaintiffs of a right or status, nor did
they take action to prevent either banks or other cities from doing business with
Plaintiffs. The defamatory statements were no more than damage to business
reputation, which is not a cognizable § 1983 claim. Id. at 375.
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C. Because Plaintiffs have no evidence of a discriminatory effect or
purpose, the district court correctly granted summary judgment on the § 1985
claim.
D. Having determined that no reasonably jury could find a constitutional
violation by the individual Defendants, the district court correctly held that there
can be no Monell liability without such a violation. City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986) (per curiam).
AFFIRMED
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