Cory Spencer v. Lunada Bay Boys ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 27 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORY SPENCER, an individual; et al., No. 18-55364
Plaintiffs-Appellants, D.C. No.
2:16-cv-02129-SJO-RAO
v.
LUNADA BAY BOYS; et al., MEMORANDUM*
Defendants-Appellees.
CORY SPENCER, an individual; et al., No. 18-55383
Plaintiffs-Appellees, D.C. No.
2:16-cv-02129-SJO-RAO
v.
BRANT BLAKEMAN, an individual
member of the Lunada Bay Boys,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted February 5, 2020
Pasadena, California
Before: IKUTA, CHRISTEN, and LEE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Cory Spencer, Diana Reed, and the Coastal Protection Rangers (CPR)
appeal the district court’s grant of summary judgment in favor of City of Palos
Verdes Estates and its former police chief. We affirm in part, reverse in part, and
remand solely for the court to reduce the sanctions award against Brant Blakeman.
1. Spencer and Reed are surfers who faced harassment by a territorial
surf gang known as the Lunada Bay Boys in Palos Verdes Estates. The plaintiff-
appellants sued the City and its former chief of police, Jeff Kepley, for failing to
adequately protect non-residents from the Lunada Bay Boys.
2. Standing: The district court did not err in finding that the CPR lacked
organizational and associational standing to pursue an equal protection claim
sounding in racial or gender discrimination. CPR raised these theories for the first
time in their opposition to summary judgment. CPR also cannot claim
associational standing because it has not identified any individual member who has
standing to sue in his or her own right. See United Food & Commercial Workers
Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555 (1996).
3. Privileges and Immunities Claim: The district court properly
dismissed the Privileges and Immunities claim. We review dismissals under
Federal Rule of Civil Procedure 12(b)(6) de novo. See Zimmerman v. City of
Oakland, 255 F.3d 734, 737 (9th Cir. 2001). The Privileges and Immunities
Clause under Article IV bars discrimination against out-of-state residents, not in-
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state residents. See Hawaii Boating Ass’n v. Water Transp. Facilities Div., 651
F.2d 661, 666 (9th Cir. 1981) (ruling that Privileges and Immunities Clause does
not apply where in-state plaintiffs challenge an allegedly discriminatory state or
municipal policy).
Here, Spencer and Reed are both California residents and challenge actions
by Palos Verdes Estates. This court’s Hawaii Boating Ass’n ruling alone ends the
inquiry. Moreover, CPR’s claim under the Privileges and Immunities Clause of
Article IV fails because it does not have associational standing, and it may not
assert such a claim on its own behalf because it is a corporation. See Shell Oil Co.
v. City of Santa Monica, 830 F.2d 1052, 1058 n.7 (9th Cir. 1987).
4. Equal Protection Claim: The district court did not err by granting
summary judgment in favor of the City and Kepley on the plaintiff-appellants’
Equal Protection Claim. We review a district court’s grant of summary judgment
de novo. See Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc).
In their complaint, the plaintiff-appellants alleged only discrimination
against non-residents of the City of Palos Verdes Estates. On appeal, however,
they try to also allege racial and sex discrimination. But because their complaint
alleges discrimination based only on non-resident status, we will not entertain this
belated new theory. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th
Cir. 2000). Rational basis review thus applies to the Equal Protection Clause claim
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based on non-resident status. See Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580,
589–90 (9th Cir. 2008).
As a threshold matter, the record is devoid of any genuine dispute of
material fact showing that the City or Police Chief Kepley discriminated against
Spencer or Reed in its provision of services. The City provided extra police patrols
to Spencer upon request during his visit to Lunada Bay, and the City ultimately
investigated Reed’s complaint and made an arrest. The plaintiff-appellants have
presented no evidence that the police services provided to them are inferior to the
police services provided to residents. See Elliot-Park v. Manglona, 592 F.3d 1003,
1006 (9th Cir. 2010).
The record also shows that the City took significant efforts to curb the Bay
Boys’ actions. For example, the City assigned extra police patrols to Lunada Bay,
passed an ordinance barring persons from blocking access to the beach, and placed
fliers encouraging surfers to report incidents. Perhaps the City could have done
more (as the plaintiff-appellants point out), but it also has other competing public
safety issues that it must address with limited police resources.
In order to assert a claim under the Equal Protection Clause, CPR must
allege that it was treated differently as an organization. See, e.g., Ctr. for Reprod.
Law & Policy v. Bush, 304 F.3d 183, 197 (2d Cir. 2002). It has presented no such
evidence. Finally, because the claims of each named plaintiff fails, the district
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court did not err by denying the motion to certify the class. Cf. Employers-
Teamsters Local Nos. 175 & 505 Pension Tr. Fund v. Anchor Capital Advisors,
498 F.3d 920, 924 (9th Cir. 2007).
5. Rule 37(e) Sanctions Against Blakeman: The district court erred by
imposing $68,223.13 in spoliation sanctions against Blakeman for deleting four
text messages involving another Bay Boy defendant. We review decisions
imposing discovery sanctions pursuant to Federal Rule of Civil Procedure 37(e) for
abuse of discretion. Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1408 (9th Cir.
1990). Underlying factual findings are reviewed for clear error. Id.The district court did not clearly err by finding that Blakeman spoliated four
text messages. Nor did it abuse its discretion by ordering the sanctions award. But
it calculated the final award amount by including costs and attorneys’ fees for an
anticipated deposition that never occurred, totaling $10,589.60. Inclusion of these
costs and fees was error. See Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct.
1178, 1186 (2017) (holding that sanctions “must be compensatory rather than
punitive in nature”) (internal quotation marks and citations omitted). We reverse
and remand only for the court to reduce the sanctions award against Blakeman by
$10,589.60.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
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