Gutierrez v. County of Los Angeles

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 22 2013

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FRANK P. GUTIERREZ; CARLOS No. 12-55437
GUTIERREZ,
D.C. No. 2:10-cv-07627-JAK-CW
Plaintiffs - Appellants,

v. MEMORANDUM*

COUNTY OF LOS ANGELES; LEROY
D. BACA, erroneously sued as Leroy D.
Bacca; TODD ROGERS, erroneously sued
as Todd Rodgers, in his individual and
personal capacity; FRANK LOBATO, in
his individual and personal capacity;
RUBEN ALVAREZ, in his individual and
personal capacity; ELIZABETH RAMOS,
in her individual and personal capacity;
STEVE HARDY; MARCIE GRIFFIN, in
her individual and personal capacity;
DANNY VERGARA, in his individual
and personal capacity; ANNIE CHU, in
her individual and personal capacity;
JACOB APPELSMITH, erroneously sued
as Jacob Applesmith; JOSE JARA, in his
individual and personal capacity; RICK
HENRY, in his individual and personal
capacity; NOE ZAVALA, in his individual
and personal capacity; ARTURO
MELANO CORTEZ, in his individual and

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
personal capacity,

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding

Submitted November 7, 2013**
Pasadena, California

Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.

Plaintiffs Frank and Carlos Gutierrez, owners of Lupita’s Family Restaurant

in Carson, California, appeal from the district court’s order denying partial

summary judgment for Plaintiffs, and granting summary judgment in favor of

officers in the Los Angeles County Sheriff’s Department (“County”), officials of

California’s Department of Alcoholic Beverage Control (“ABC”), and the alleged

owners of a competing restaurant, Jose Jara and Arturo Melano Cortez, in

Plaintiffs’ 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

Plaintiffs claim that County officers and ABC officials violated Section

1983 by: (1) wrongfully arresting and prosecuting Plaintiffs in retaliation for

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Plaintiffs’ initiation of ABC proceedings against a competing restaurant, which

Plaintiffs claim violated their First Amendment rights to free speech and petition;

(2) not investigating Plaintiffs’ allegations of ABC violations against the

competing restaurant’s alleged owners because of an alleged “cozy relationship”

between the County, ABC, and the competing restaurant’s ownership, which

Plaintiffs claim violated due process under the Fifth and Fourteenth Amendments;

and (3) maliciously prosecuting Plaintiffs without probable cause, which Plaintiffs

claim violated due process under the Fifth and Fourteenth Amendments. Plaintiffs

further allege claims against Cortez and Jara, including aiding and abetting

violations of 42 U.S.C. § 1983, malicious prosecution under state law, and

negligence.

The district court permitted amendment of Plaintiffs’ claims several times

before finally dismissing them with prejudice on summary judgment. The district

court concluded, in granting summary judgment in favor of Defendants, that all of

Plaintiffs’ claims suffered from a lack of proof. We affirm substantially for the

reasons stated by the district court. A plaintiff may not prevail at summary

judgment merely on allegations without specific evidence contradicting that of the

defendants, and it is the burden of the plaintiff to show the validity of claims

supported by evidence once defendants make a properly supported motion for

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summary judgment. See Angle v. Miller, 673 F.3d 1122, 1134 n.6 (9th Cir. 2012);

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citing Fed. R.

Civ. P. 56(e)).1

AFFIRMED.

1
We grant Defendants’ motions to strike and deny Plaintiffs’ request for
judicial notice.

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