                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 22 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GAIL HARPER,                                    No.    14-15759

                Plaintiff-Appellant,            D.C. No. 3:11-cv-01306-JST

 v.
                                                MEMORANDUM*
RYAN LUGBAUER; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                     Jon S. Tigar, District Judge, Presiding

                          Submitted September 21, 2017**

Before:      SCHROEDER, HAWKINS, and N.R. SMITH, Circuit Judges.

      Gail Harper appeals pro se from the district court’s summary judgment and

dismissal orders in her 42 U.S.C. § 1983 action alleging federal and state law

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Doe v.

Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009) (dismissal under Fed. R.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Civ. P. 12(b)(6) and summary judgment); Vess v. Ciba-Geigy Corp. USA, 317 F.3d

1097, 1102 (9th Cir. 2003) (grant of an anti-SLAPP motion). We affirm.

      The district court properly granted the City and County of San Francisco,

San Francisco Police Department, and individual police officers (“City

defendants”) motion to strike Harper’s claims under California Civil Code sections

51, 51.7, and 52.4 pursuant to California’s anti-SLAPP statute because the City

defendants met their prima facie burden of showing that each cause of action arose

out of protected activity and Harper failed to demonstrate a probability of

prevailing on the merits. See Vess, 317 F.3d at 1110 (two-step analysis under

California’s anti-SLAPP statute); Digerati Holdings, LLC v. Young Money Entm’t,

LLC, 123 Cal. Rptr. 3d 736, 747-48 (Ct. App. 2011) (litigation privilege precludes

liability arising from any communication made in judicial proceedings); Schaffer v.

City & County of San Francisco, 85 Cal. Rptr. 3d 880, 888-89 (Ct. App. 2008)

(anti-SLAPP insulates police from having to litigate plainly unmeritorious

lawsuits, the possibility of which would otherwise chill their ability to make

statements in connection with official proceedings, as their duties to the public

require); Baughman v. California, 45 Cal. Rptr. 2d 82, 89 (Ct. App. 1995) (“Under

Government Code section 821.6, the officers’ actions during the investigation were

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cloaked with immunity, even if they had acted negligently, maliciously or without

probable cause in carrying out their duties.”).

      The district court properly dismissed Harper’s civil conspiracy claims

against Coyle and Page because Harper failed to allege facts sufficient to show

Coyle and Page entered into an agreement to commit a wrongful act. See Wasco

Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (elements

of civil conspiracy in California).

      The district court properly dismissed as barred by the applicable statute of

limitations Harper’s § 1983 claims to the extent these claims were based on

conduct that took place prior to February 2009. See Canatella v. Van De Kamp,

486 F.3d 1128, 1132 (9th Cir. 2007) (for § 1983 claims, federal courts apply the

forum state’s statute of limitations; California’s statute of limitations is two years

for personal injury actions).

      The district court properly dismissed as barred by the applicable statute of

limitations Harper’s defamation claims to the extent these claims were based on

conduct that took place prior to February 2010. See Shively v. Bozanich, 80 P.3d

676, 685 (Cal. 2003) (statute of limitations is one year for defamation); see also

Cal. Civ. Proc. Code §340(c).

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      Contrary to Harper’s contentions, the statutes of limitations were not tolled

by virtue of the discovery rule or the continuing violation doctrine. See Fox v.

Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920-21 (Cal. 2005) (discovery rule);

Komarova v. Nat’l Credit Acceptance, Inc., 95 Cal. Rptr. 3d 880, 894-95 (Ct. App.

2009) (continuing violation doctrine); see also Canatella, 486 F.3d at 1132-33

(federal courts apply forum state’s law regarding tolling).

      With respect to Harper’s § 1983 claims that are not time-barred, the district

court properly granted summary judgment on the police retaliation, harassment

based on gender, “state-created” danger, and equal protection claims because

Harper failed to raise a genuine dispute of material fact as to whether her

constitutional rights were violated as a result of an official policy, practice, or

custom of the City. See Nigro v. Sears, Roebuck and Co., 784 F.3d 495, 497-98

(9th Cir. 2015) (“[The] district court can disregard a self-serving declaration that

states only conclusions and not facts that would be admissible evidence.”); City of

Los Angeles v. Heller, 475 U.S. 796, 699 (1986) (a Monell claim cannot survive in

the absence of an underlying constitutional violation); Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690-91 (1978) (setting forth requirements for municipal

liability and explaining a municipality cannot be held liable under § 1983 on a

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respondeat superior theory).

      With respect to Harper’s defamation claims that are not time barred, the

district court properly granted summary judgment to defendants Coyle and Ertola

because Harper failed to raise a genuine dispute of material fact as to whether the

alleged statement made by Coyle and Ertola were defamatory. See Gardner v.

Martino, 563 F.3d 981, 986-87 (9th Cir. 2009) (setting forth test for whether an

allegedly defamatory statement is opinion, not objective fact, and therefore

protected by the First Amendment). The district court properly granted summary

judgment to defendant Ertola because Harper failed to raise a genuine dispute of

material fact as to whether Lugbauer made defamatory statements about Harper.

See Smith v. Maldonado, 85 Cal. Rptr. 2d 397, 402-03 (Ct. App. 1999) (elements

of defamation in California); Keenen v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)

(non-moving party must identify with reasonable particularity the evidence that

precludes summary judgment).

      The district court properly granted summary judgment on Harper’s gender

violence claim under California Civil Code section 52.4 based on a conspiracy

theory of liability because Harper failed to establish any of the elements of

conspiracy. See People v. Johnson, 303 P.3d 379, 384 (Cal. 2013) (elements of

                                          5                                     14-15759
conspiracy); see also Cal. Civ. Code § 52.4(c)).

      The district court did not abuse its discretion in declining to consider

Harper’s evidence filed after her deadline to oppose summary judgment and in

excluding certain pieces of evidence on summary judgment. See N.D. Cal. Civ.

R. 7-3(d) (providing that once a reply to a motion for summary judgment is filed,

no additional papers may be filed without prior court approval); Bias v. Moynihan,

508 F.3d 1212, 1223 (9th Cir. 2007) (broad deference is given to a district court’s

interpretation of its local rules); Security Farms v. Int’l Bd. of Teamsters, 124 F.3d

999, 1011 (9th Cir. 1997) (standard of review); see also Hal Roach Studios, Inc. v.

Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1990) (unauthenticated

documents cannot be considered on summary judgment); Beyene v. Coleman Sec.

Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (only admissible evidence can be

considered in ruling on a motion for summary judgment). Even if the district court

erred in excluding certain documents, any error was harmless. See Sanchez v.

Aerovias De Mexico, C.A. De C.V., 590 F.3d 1027, 1029 (9th Cir. 2010) (reversal

of summary judgment not required if error is harmless).

      The district court did not abuse its discretion in denying Harper’s third

request to extend the discovery deadline because Harper failed to show good cause

                                          6                                      14-15759
as to why another extension of the deadline was needed. See Fed. R. Civ. P. 16(b);

Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (setting forth

standard of review and explaining that moving party must show good cause to

modify scheduling order).

      The district court did not abuse its discretion in granting attorney’s fees to

the City defendants. See Vess, 317 F.3d at 1102 (standard of review); Wilkerson v.

Sullivan, 121 Cal. Rptr. 2d 275, 277 (Ct. App. 2002) (a defendant who prevails on

an anti-SLAPP motion to strike is entitled to recover his or her attorney fees); see

also Cal. Civ. Proc. Code § 425.16(c)(1).

      The district court did not abuse its discretion in granting costs to the City

defendants as a prevailing party. See Fed. R. Civ. P. 54(d)(1); In re Online DVD-

Rental Antitrust Litig., 779 F.3d 914, 924 (9th Cir. 2015) (standard of review).

      In her original and supplemental opening briefs, Harper failed to challenge

the district court’s dismissal of all claims against defendants Brown and Gascon,

and the claims against defendant Ertola for violation of California Civil Code

sections 51.7 and 52.4. Therefore, Harper has waived any challenge as to the

dismissal of these claims. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.

1999) (“[O]n appeal, arguments not raised by a party in its opening brief are

                                          7                                     14-15759
deemed waived.”); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will

not manufacture arguments for an appellant . . . .”).

        We reject as unsupported by the record Harper’s contentions that District

Judge Ware and District Judge Tigar exhibited gender bias against her. See

Clemens v. U.S. Dist. Court for the Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th

Cir. 2005) (test for disqualification of judge is “whether a reasonable person with

knowledge of all the facts would conclude that the judge’s impartiality might

reasonably be questioned” (citation and internal quotation marks omitted)); Taylor

v. Regents of the Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993) (adverse rulings

alone are insufficient to demonstrate judicial bias). To the extent Harper

challenges the district court’s order denying her motion for recusal, we conclude

there was no abuse of discretion. See 28 U.S.C. §§ 144, 455; Clemens, 428 F.3d at

1178.

        AFFIRMED.




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