                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 17 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAIME ALVAREZ; et al.,                           No. 09-55001

              Plaintiffs - Appellants,           D.C. No. 2:00-cv-03048-PA-RC

  v.
                                                 MEMORANDUM *
CITY OF SAN BERNARDINO, a
Municipal Corporation; et al.,

              Defendants - Appellees,

  and

JULIO ESTRADA,

              Defendant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                     Argued and Submitted February 11, 2011
                              Pasadena, California

Before: GOODWIN, D.W. NELSON, and N.R. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Jaime Alvarez, Marisela Labastida, and Alvarez & Associates (Plaintiffs)

appeal the district court’s grant of summary judgment for Defendants on three

claims under 42 U.S.C. §§ 1981, 1983, and 1985.1

      A.     The district court properly dismissed the § 1981 claim. Plaintiffs have

not introduced evidence that Defendants prevented them from making or enforcing

contracts, or that they did so on the basis of race. See 42 U.S.C. § 1981; Evans v.

McKay, 869 F.2d 1341, 1344 & n.2 (9th Cir. 1989). In order to show racial

discrimination, Plaintiffs must show that Defendants acted with discriminatory

purpose, and that it had a discriminatory effect. United States v. Armstrong, 517

U.S. 456, 465 (1996). Discriminatory effect can be shown by demonstrating that

similarly situated persons of other races were not prosecuted. Id. Plaintiffs did not

show that “the conditions and practices to which [the investigation] was directed

did not exist exclusively among [a particular racial group], or that there were other

offenders” who were not prosecuted. Id. at 466 (quoting Ah Sin v. Wittman, 198

U.S. 500, 507-08 (1905)). Although Plaintiffs allege that no other Acquisition,


      1
         Plaintiffs did not raise the retaliation claim in the opening brief. Issues not
specifically and distinctly argued in the opening brief are waived, Greenwood v.
F.A.A., 28 F.3d 971, 977 (9th Cir. 1994), and we decline to address this issue.
Plaintiffs did not file a notice of appeal of the district court’s order excluding the
declaration of Julio Estrada. See Fed. R. App. P. 3(a)(1) (“An appeal . . . may be
taken only by filing a notice of appeal . . . .”). Therefore, we do not address that
issue.

                                            2
Rehabilitation, and Resale program developers were prosecuted, they provide no

evidence that those developers were “other offenders.” Nor do they show that any

of the other Hispanic developers were prosecuted (on the basis of race or

otherwise). Without evidence of a discriminatory effect, Plaintiffs’ claims must

fail.

        B.   The district court did not err in dismissing the § 1983 claim. Plaintiffs

did not introduce sufficient evidence for a reasonable jury to find (1) that

Defendants subjected them to criminal charges based on false evidence or (2) that

Defendants’ alleged defamation deprived them of business goodwill.

        1.   A reasonable jury could not find that Plaintiffs were subjected to

criminal charges on the basis of fabricated or coerced evidence, or that

investigators ignored exculpatory evidence. Devereaux v. Abbey, 263 F.3d 1070,

1074-76 (9th Cir. 2001). Assuming as true that Cisneros’s statement was

fabricated, the criminal complaint did not rely on Cisneros’s statement, and

probable cause existed independent of her statement. See Tomer v. Gates, 811

F.2d 1240, 1242 (9th Cir. 1987); see also Franks v. Delaware, 438 U.S. 154, 155-

56 (1978). Assuming Defendants used coercive tactics when interviewing some

witnesses, the record does not show that the evidence given was false or that it was

incriminating. In particular, Estrada affirmed in his deposition that the information


                                           3
he gave investigators in the video was true. The evidence (which Plaintiffs allege

is exculpatory) shows only that others may have been involved in falsifying

information, not that Plaintiffs did not participate in filing false loan applications.

As such, it was insufficient to show Defendants should have known Plaintiffs were

innocent and should have stopped the investigation. Therefore, there was no

constitutional violation.

      2.     Defendants’ defamation of Plaintiffs to banks and individuals did not

deprive Plaintiffs of the goodwill of their business. Damage to a property interest

must arise from affirmative conduct beyond the defamatory statements themselves.

Affirmative conduct includes revoking a right or changing a status held by the

plaintiff or taking direct action to prevent continued patronage of the business.

WMX Techs., Inc. v. Miller, 197 F.3d 367, 375 (9th Cir. 1999) (en banc). Although

patrons may be less likely to patronize a company because of the defamation, this

is a result of the damage to the business’s reputation, not a deprivation of goodwill.

Id. at 375-76. Defendants did not deprive Plaintiffs of a right or status, nor did

they take action to prevent either banks or other cities from doing business with

Plaintiffs. The defamatory statements were no more than damage to business

reputation, which is not a cognizable § 1983 claim. Id. at 375.




                                            4
         C.   Because Plaintiffs have no evidence of a discriminatory effect or

purpose, the district court correctly granted summary judgment on the § 1985

claim.

         D.   Having determined that no reasonably jury could find a constitutional

violation by the individual Defendants, the district court correctly held that there

can be no Monell liability without such a violation. City of Los Angeles v. Heller,

475 U.S. 796, 799 (1986) (per curiam).

         AFFIRMED




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