Avinash Kulkarni v. Meera Upasani

FILED
NOT FOR PUBLICATION
SEP 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AVINASH B. KULKARNI, No. 15-55377
Plaintiff-Appellant, D.C. No.
3:13-cv-02857-JLS-KSC
v.
MEERA UPASANI; MOHAN UPASANI; MEMORANDUM*
SUNILA KULKARNI; MADHAVI
NERURKAR; CRAIG MCKENZIE
NICHOLAS; TRACY JUNE JONES;
NICHOLAS AND BUTLER LLP; LISA
NICHOLAS NEAL; CHELSEA A. EPPS;
RUTAN AND TUCKER LLP;
NIRANJAN FRED THIAGARAJAH;
KIRAN NAIR; LAW OFFICES OF FRED
THIAGARAJAH; UNITED STATES
DEPARTMENT OF STATE; ORANGE
COUNTY SOCIAL SERVICES
AGENCY; DOES, 1-20, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted August 31, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Avinash Kulkarni appeals the dismissal with prejudice of his first amended
complaint against eighteen state, federal, and individual defendants. Kulkarni pled
more than thirty federal and state causes of action related to an alleged conspiracy
between the government and individual defendants to deprive him of access to his
son, and their subsequent participation in California civil and criminal cases
stemming from his son’s abduction.
The district court concluded that it lacked subject matter jurisdiction over
Kulkarni’s claims against the United States Department of State (“USDOS”), that
Kulkarni had failed to state a claim upon which relief could be granted under
Federal Rule of Civil Procedure 12(b)(6) against Orange County Social Services
Agency (“OCSSA”), that the state tort claims against the individual defendants
should be struck under the California anti-SLAPP statute, and that the federal
claims should be dismissed for failure to state a claim and under the Noerr-
Pennington doctrine. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
**
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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Kulkarni framed the claim against USDOS as a Bivens action. Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
However, federal agencies like USDOS are not proper defendants under Bivens.
See F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) (“An extension of Bivens to
agencies of the Federal Government is not supported by the logic of Bivens
itself.”). Because the USDOS is not a proper defendant, the district court correctly
dismissed the Bivens claim.
Kulkarni failed to adequately plead that OCSSA had a “policy or custom”
that caused a deprivation of his rights. Monell v. Dep’t of Soc. Sec. Servs. of N.Y.,
436 U.S. 658, 694 (1978). “[T]he absence of a section 1983 deprivation of rights
precludes a section 1985 conspiracy claim predicated on the same allegations.”
Caldeira v. Cty. of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989). Because there is
no underlying § 1983 deprivation and because Kulkarni has not presented plausible
allegations that OCSSA participated in a conspiracy to violate his constitutional
rights, or failed to prevent such a deprivation, as required under §§ 1985 and 1986,
these claims were properly dismissed.
Kulkarni’s state tort claims against OCSSA are barred because he failed to
comply with California law governing claims against government entities, which
require written notice within six months of accrual of the cause of action. See Cal.
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Gov. Code §§ 911.2, 945.4. Because “failure to allege facts demonstrating or
excusing compliance with the claim presentation requirement subjects a claim
against a public entity to a demurrer for failure to state a cause of action,” and
Kulkarni has not presented any evidence of compliance, the district court properly
dismissed the state law claims against OCSSA. California v. Superior Court
(Bodde), 90 P.3d 116, 119 (Cal. 2004).
Against the individual defendants, Kulkarni claimed the follow state torts:
fraud, obstruction of justice, defamation, improper clouding of title, conspiracy,
negligence per se, intentional infliction of emotional distress, negligent infliction
of emotional distress, and tortious interference with parental rights. The individual
defendants moved to strike Kulkarni’s state law claims under the California anti-
SLAPP statute, which protects “any written or oral statement or writing made
before a . . . judicial proceeding, . . . [and] any written or oral statement or writing
made in connection with an issue under consideration or review by a . . . judicial
body.” Cal. Civ. Proc. Code § 425.16(e). Likewise, “all communicative acts
performed by attorneys as part of their representation of a client in a judicial
proceeding or other petitioning context are per se protected as petitioning activity
by the anti-SLAPP statute.” Cabral v. Martins, 99 Cal. Rptr. 3d 394, 401–02 (Cal.
Ct. App. 2009).
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Because the defendants’ statements and filings made before the state court
are protected under the anti-SLAPP statute, Kulkarni bears the burden of showing
a reasonable probability of prevailing on his claims. See Navellier v. Sletten, 52
P.3d 703, 708 (Cal. 2002). California litigation privilege and attorney-client
privilege immunize the defendants from Kulkarni’s state tort claims. See Action
Apartment Ass’n, Inc. v. City of Santa Monica, 163 P.3d 89, 95 (Cal. 2007)
(litigation privilege “immunize[s] defendants from tort liability based on theories
of abuse of process, intentional infliction of emotional distress, . . . negligent
misrepresentation, invasion of privacy, negligence and fraud.”) (citation omitted);
Gen. Dynamics Corp. v. Superior Court, 876 P.2d 487, 490 (Cal. 1994) (“[When a]
claim is incapable of complete resolution without breaching the attorney-client
privilege, the suit may not proceed.”). Because the defendants’ actions are
protected by these privileges, Kulkarni cannot show a reasonable probability of
prevailing on his claims. The district court properly granted the motion to strike.
Kulkarni’s federal claims against the individual defendants rely on a theory
of state/federal/private conspiracy or joint action under §§ 1983, 1985, 1986, and
Bivens. Kulkarni has not plausibly alleged a conspiracy or joint action between the
private defendants and the state or federal entities. See Caldeira, 866 F.2d at 1181
(“[T]o prove a section 1985 conspiracy between a private party and the
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government under section 1983, the plaintiff must show an agreement or ‘meeting
of the minds’ by the defendants to violate his constitutional rights.”);
Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1338 (9th Cir. 1987) (To
implicate private individuals in Bivens actions, the complaint must allege that
“private party defendants jointly participate with the government to a sufficient
extent to be characterized as federal actors.”) (quoting Reuber v. United States, 750
F.2d 1039, 1058 (D.C. Cir. 1984)). Kulkarni has failed to make the necessary link
between the individuals and the government, without which a purely private
individual cannot be held liable for violating his constitutional rights under § 1983
or Bivens.
The federal claims are also barred under the Noerr-Pennington doctrine. See
Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643–44 (9th Cir. 2009) (applying
the Noerr–Pennington doctrine, which “derives from the Petition Clause of the
First Amendment and provides that those who petition any department of the
government for redress are generally immune from statutory liability for their
petitioning conduct” including “access to courts”) (citations and internal quotation
marks omitted). For these reasons, the district court correctly dismissed the federal
claims.
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Kulkarni also challenges the denial of expedited discovery prior to the
district court’s ruling on the motions to dismiss and motion to strike. We review
discovery decisions for abuse of discretion. See Quinn v. Anvil Corp., 620 F.3d
1005, 1015 (9th Cir. 2010). It was not an abuse of discretion for the Magistrate
Judge to determine that expedited discovery would be overly burdensome and that
Kulkarni had not established good cause for why discovery must occur before
disposition of the motions to dismiss and strike.
The district court denied leave to amend, finding that amendment would be
futile. “A district court does not err in denying leave to amend where the
amendment would be futile.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,
658 (9th Cir. 1992). We review the district court’s decision for abuse of discretion,
Ebner v. Fresh, Inc., 818 F.3d 799, 803 (9th Cir. 2016), and—given the numerous
grounds on which Kulkarni’s claims could be dismissed and his failure to state
specific amendments that would cure any deficiencies—we affirm.
We deny Kulkarni’s motion for judicial notice as moot.
AFFIRMED.
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