Canatella v. Stovitz , 213 F. App'x 515 ( 2006 )

MEMORANDUM ^**

Appellant Richard Canatella (“Appellant”) appeals the dismissal for failure to state a claim of his 42 U.S.C. § 1983 suit against several officers of the State Bar of California alleging that: 1) five California attorney disciplinary provisions are unconstitutional, 2) the Bar’s disciplinary procedures violate due process and the Supremacy Clause, and 3) the Bar has deprived him of the protection of California’s litigation privilege. The facts and procedural history are familiar to the parties, and we do not repeat them here. Dismissals for failure to state a claim are reviewed de novo. Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir.1996).

Appellant’s first claim challenges Cal. Bus. & Prof.Code § 6068(c), Cal. Bus. & Prof.Code § 6068(g), Cal. Bus. & Prof. Code § 6103, Cal. Bus.. & Prof.Code § 6106, and Cal. R. of Prof. Conduct 3-200. Regardless of the test used to determine the validity of those provisions and assuming they implicate some protected speech, Appellant’s first prayer for relief still fails because he has not stated a claim upon which relief can be granted. First, Appellant does not allege any facts supporting an as-applied challenge, and therefore, his as-applied arguments fail. Second, Appellant’s assertion that those provisions are overbroad fails because he does not identify any protected speech that is encumbered by those provisions; put differently, Appellant alleges no facts from which we could conclude that those provisions “punish[ ] a ‘substantial’ amount of protected free speech, ‘judged in relation to [their] plainly legitimate sweep,’ ” as required to “apply[ ] the ‘strong medicine’ of overbreadth invalidation.” Virginia v. Hicks, 539 U.S. 113, 118-120, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). Third, Appellant’s vagueness challenges fail because he does not allege any facts from which we could conclude that the various terms he attacks are anything other than “terms of common understanding.” California Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1152 (9th Cir.2001); see also CSC v. Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) (noting that “there are limitations in the English language with respect to being both specific and manageably brief, and it seems ... that although [a] prohibition ] may not satisfy those intent on finding fault at any cost,” a prohibition is not vague if it is “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with”). Fourth, Appellant has failed to allege facts indicating that the challenged provisions discriminate on the basis of viewpoint. See, e.g., United States v. Kokinda, 497 U.S. 720, 736, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality). Fifth, Appellant’s assertion that the challenged provisions are underinclusive fails because he has not alleged that those provisions contain viewpoint based exemptions. See City of Ladue v. Gilleo, 512 U.S. 43, 51, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (holding that to be unconstitutionally underinclusive, a regulation must create “an exemption from an otherwise permissible regulation of speech”). And sixth, Appellant’s Petition Clause argument fails because the challenged provisions do not violate any “associational or speech interests” alleged by the Appellant. WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir.1999) (en banc); see also McDonald v. Smith, 472 U.S. 479, 485, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985).

Appellant has also failed to state a claim upon which relief may be granted in his second prayer for relief. By failing to raise the argument in his briefs, Appellant has waived his Supremacy Clause argument. See, e.g., Armentero v. I.N.S., 412 F.3d 1088, 1095 (9th Cir.2005) (“Failure to raise an argument in an opening brief constitutes waiver.”). Appellant’s alternative argument, that California’s disciplinary system violates due process, is foreclosed by Hirsh v. Justices of Supreme Court of State of California, 67 F.3d 708, 714 (9th Cir.1995).

Appellant’s third claim — that subjecting him to discipline despite California’s litigation privilege deprives him of right or privilege under color of state law — fails to state a claim upon which relief can be granted because that privilege does not apply to disciplinary proceedings. See, e.g., Silberg v. Anderson, 50 Cal.3d 205, 213, 266 Cal.Rptr. 638, 786 P.2d 365 (Cal.1990) (noting that the litigation privilege is designed “to afford litigants ... the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions” (citation omitted) (emphasis added)); Kuehn v. Kuehn, 85 Cal.App.4th 824, 834, 102 Cal. Rptr.2d 743 (Cal.Ct.App.2000) (noting that the “litigation privilege ... bars derivative tort actions”).

Finally, because “it is clear, upon de novo review, that [Appellant’s] complaint [cannot] be saved by any amendment,” Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir.2004), the district court did not abuse its discretion by dismissing his complaint without leave to amend. See also McKesson HBOC, Inc. v. New York State Common Ret. Fund, Inc., 339 F.3d 1087, 1090 (9th Cir.2003).

Accordingly, the district court’s order dismissing Appellant’s claims is AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.