FILED
NOT FOR PUBLICATION MAR 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHARON S. HENRY, No. 11-16927
Plaintiff - Appellant, D.C. No. 3:09-cv-00628-RS
v.
MEMORANDUM *
BANK OF AMERICA CORPORATION;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted March 15, 2013
San Francisco, California
Before: WALLACE and IKUTA, Circuit Judges, and GARBIS, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
Sharon Henry appeals from the district court’s judgment disposing of her
state claims against Nancy Mendoza and Bank of America and her federal and state
civil rights claims against Calvin Chow, Raymond Lee, and the City and County of
San Francisco. We have jurisdiction under 28 U.S.C. § 1291. We note at the
outset that Henry’s claims arise from a perfect storm of coincidences and a case of
mistaken identity and that her actions in this matter were blameless. Moreover, she
presented nonfrivolous claims in her complaint. Nevertheless, we affirm the
district court’s orders.
The Anti-SLAPP statute applies to Henry’s state claims against Mendoza
and Bank of America because the “principal thrust or gravamen” of these claims is
based on Mendoza’s report to the police, and the record does not conclusively
establish that Mendoza’s report to the police was unlawful. Dwight R. v. Christy
B., 151 Cal. Rptr. 3d 406, 415–416 (Ct. App. 2013). The district court did not err
in striking these claims under the Anti-SLAPP statute. See Equilon Enters. v.
Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002). Henry failed to adduce any
evidence of circumstances suggesting a discriminatory motive on the part of
Mendoza and, therefore, failed to show a probability of prevailing on her Unruh
Act discrimination claim. See Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 355
(2000). Because Henry likewise failed to show that Mendoza’s conduct in
2
dishonoring her check was extreme and outrageous as a matter of law, she did not
show a probability of prevailing on her intentional infliction of emotional distress
claim.1
The district court was correct to grant Mendoza and Bank of America
summary judgment with respect to Henry’s negligence claim. Henry does not
claim she suffered any physical injuries as a result of Mendoza’s conduct in
dishonoring the check, and the emotional injuries she identified are insufficient to
support a negligence claim. See Gilchrist v. Jim Slemons Imps., Inc., 803 F.2d
1488, 1499 (9th Cir. 1986).
Officers Chow and Lee are entitled to qualified immunity with regard to
Henry’s § 1983 claim for false arrest because “it is reasonably arguable that there
was probable cause for arrest.” Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076
(9th Cir. 2011). In particular, the officers learned that Henry’s check was written
by a Kathleen Wilkinson, that there was only one Kathleen Wilkinson in Bank of
America’s database, that this Wilkinson was out of the country, and that this
1
Henry does not challenge the district court’s ruling that 31 U.S.C. §
5318(g)(3)(A) precludes her from basing this claim or any other claim on
Mendoza’s report to the police.
3
Wilkinson’s signature did not match the signature on Henry’s check.2 Based on
the same facts, the officers are entitled to state law statutory immunity with respect
to Henry’s state law claims. See Cal. Penal Code § 847(b)(1).
The district court did not err in granting summary judgment in favor of the
City and County of San Francisco. Henry did not produce evidence that the City
and County of San Francisco “has adopted an illegal or unconstitutional policy or
custom” that resulted in a violation of Henry’s constitutional rights, Robinson v.
Solano Cnty., 278 F.3d 1007, 1016 (9th Cir. 2002) (en banc), so it is entitled to
summary judgment on Henry’s § 1983 claim. The City and County of San
Francisco is entitled to immunity from Henry’s state law claims because it shares
the immunity of officers Chow and Lee. See Cal. Gov’t Code § 815.2(b).
AFFIRMED.
2
As it turned out, Bank of America and Mendoza had identified the wrong
Kathleen Wilkinson. The Kathleen Wilkinson who wrote Henry’s check was not
in the bank’s database.
4