Steven Stein v. Larry Anderson

FILED
NOT FOR PUBLICATION
FEB 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN D. STEIN, No. 14-55265

Plaintiff - Appellee, D.C. No. 3:12-cv-02524-BTM-
BGS
v.

LARRY B. ANDERSON, an individual, MEMORANDUM*

Defendant - Appellant,

and

TRI-CITY HEALTHCARE DISTRICT, a
California Healthcare District,

Defendant.

STEVEN D. STEIN, No. 14-55274

Plaintiff - Appellee, D.C. No. 3:12-cv-02524-BTM-
BGS
v.

LARRY B. ANDERSON, an individual,

Defendant,

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

TRI-CITY HEALTHCARE DISTRICT, a
California Healthcare District,

Defendant - Appellant.

STEVEN D. STEIN, No. 14-56577

Plaintiff - Appellee, D.C. No. 3:12-cv-02524-BTM-
BGS
v.

TRI-CITY HEALTHCARE DISTRICT, a
California Healthcare District,

Defendant,

and

LARRY B. ANDERSON, an individual,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, Chief District Judge, Presiding

Argued and Submitted February 5, 2016
Pasadena, California

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Before: CALLAHAN and N.R. SMITH, Circuit Judges, and RAKOFF,** Senior
District Judge.

Tri-City Healthcare District (“Tri-City”) and Larry B. Anderson

(“Defendants”) each appeal the district court’s denial of their respective anti-

SLAPP motions.1 Anderson also appeals the district court’s denial of his motion

for partial summary judgment based on qualified immunity. We review both issues

de novo. Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010) (anti-

SLAPP); CarePartners, LLC v. Lashway, 545 F.3d 867, 875–76 (9th Cir. 2008)

(qualified immunity).

1. Defendants are entitled to strike Stein’s actions for false light and

blacklisting pursuant to California’s anti-SLAPP statute. See Cal. Civ. Proc. Code

§ 425.16(b)(1). First, Defendants made the required “threshold showing” that Tri-

**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
1
Defendants also moved to strike pages 1–8 and 11–159 of Steven D.
Stein’s “supplemental excerpts of record” in case number 14-55265. We may only
consider “the record before the trial judge when his decision was made.” United
States v. Walker, 601 F.2d 1051, 1054–55 (9th Cir. 1979); see also Fed. R. App. P.
10(a); 9th Cir. R. 10-2. Stein’s attempt to “unilaterally supplement the record on
appeal with evidence not reviewed by the court below” without making a motion
or formal request to this court was a “serious violation” of appellate procedure. See
Lowry v. Barnhart, 329 F.3d 1019, 1024–25 (9th Cir. 2003) (quoting Tonry v. Sec.
Experts, Inc., 20 F.3d 967, 974 (9th Cir. 1994), abrogated on other grounds by
Turner v. Anheuser-Busch, Inc., 876 P.2d 1022 (Cal. 1994)). Thus, we grant
Defendants’ motion to strike and award them the associated costs.

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City’s statement arose from a protected activity (the right of free speech). See

Equilon Enters. v. Consumer Cause, Inc., 52 P.3d 685, 694 (Cal. 2002). Tri-City’s

statement was protected under California Civil Procedure Code section

425.16(e)(2) as a statement “made in connection with an issue under consideration

or review by a . . . judicial body.” See City of Costa Mesa v. D’Alessio Invs., LLC,

154 Cal. Rptr. 3d 698, 710 (Cal. Ct. App. 2013).

Second, Stein has not “demonstrated a probability of prevailing” on his

claims for false light invasion of privacy and blacklisting. See Equilon Enters., 52

P.3d at 694. Stein’s claims for false light and blacklisting cannot prevail, because

the statement at issue was a constitutionally protected statement of opinion. See

Lieberman v. Fieger, 338 F.3d 1076, 1079 (9th Cir. 2003). No “reasonable

factfinder could conclude that the contested statement[, saying someone has a long

history of being a disgruntled employee,] ‘impl[ies] an assertion of objective

fact.’” Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995) (second

alteration in original) (quoting Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th

Cir. 1990)); see also Lieberman, 338 F.3d at 1080 (listing factors this court

examines in determining whether a statement implies a factual assertion). Rather,

the statement reads as fiery rhetoric “published in a . . . setting in which the

[newspaper readers could] anticipate efforts by the parties to persuade others to

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their positions.” Manufactured Home Cmtys., Inc. v. Cty. of San Diego, 544 F.3d

959, 963 (9th Cir. 2008) (quoting Gregory v. McDonnell Douglas Corp., 552 P.2d

425, 428 (Cal. 1976)).2 Because Defendants have prevailed on their anti-SLAPP

motion, they are also “entitled to recover [their] attorney[s’] fees and costs,” which

were incurred in bringing the motion to strike and its related appeal. Cal. Civ. Proc.

Code § 425.16(c)(1); Ketchum v. Moses, 17 P.3d 735, 741, 747 (Cal. 2001).

2. Anderson is protected from liability under the first prong of the qualified

immunity doctrine. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“First, a court

must decide whether the facts that a plaintiff has alleged or shown make out a

violation of a constitutional right.” (citations omitted)). Stein’s constitutionally

protected property interest in the right to continued employment could only be

violated if he was terminated without due process. See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538–39, 546 (1985) (property interest arising from

employment agreement that states an employee may only be terminated for cause);

FDIC v. Henderson, 940 F.2d 465, 476 (9th Cir. 1991) (property interest arising

from employment agreement that states an employee is entitled to continued pay

and benefits for a fixed period of time upon termination without cause).

2
Because we determined that Tri-City’s statement was a non-actionable
statement of opinion, we need not reach Defendants’ secondary arguments under
the litigation privilege and reporter’s privilege.

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 Anderson did not violate Stein’s right to continued employment by sending

the March 2, 2012 letter accepting Stein’s resignation, because doing so could not

terminate Stein’s employment. (If Stein’s employment had terminated on that date,

the termination could have only resulted from Stein resigning, not Anderson

accepting his resignation.) Likewise, Anderson did not violate Stein’s right to

continued employment by turning the matter over to Tri-City’s legal department

after Stein asserted that he had not resigned. Finally, Stein has not shown that

Anderson had any involvement in Tri-City’s ultimate decision to terminate Stein

without first providing him a pre-termination notice or hearing.3 Therefore, Stein

has not shown that Anderson violated his constitutional rights.

REVERSED and REMANDED.

3
We note that, although we must read the facts in the light most favorable to
Stein, we are not required to accept bald assertions as fact. See Fed. R. Civ. P.
56(c)(1)(A) (stating that a party’s assertions must be supported by references “to
particular parts of materials in the record”); Mitchell v. Forsyth, 472 U.S. 511, 526
(1985) (“Even if the plaintiff’s complaint adequately alleges the commission of
acts that violated clearly established law, the defendant is entitled to summary
judgment if discovery fails to uncover evidence sufficient to create a genuine issue
as to whether the defendant in fact committed those acts.”); Schowengerdt v.
United States, 944 F.2d 483, 489 (9th Cir. 1991) (explaining that “inference and
speculation” do not establish facts in a manner sufficient to overcome a summary
judgment motion).

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