                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 28 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BENJAMIN C. OYARZO,                              No. 13-16653

              Plaintiff - Appellant,             D.C. No. 1:11-cv-01271-SAB

 v.
                                                 MEMORANDUM*
JOSEPH TURNER; DARLENE
HUTCHINS,

              Defendants - Appellees.



BENJAMIN C. OYARZO,                              No. 14-15253

              Plaintiff - Appellant,             D.C. No. 1:11-cv-01271-SAB

 v.

TUOLUMNE FIRE DISTRICT, AKA
Tuolumne Fire Protection District;
KENNETH HOCKETT; TONEY
POWERS,

              Defendants - Appellees.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NICHOLAS HART,                                     No. 14-16075

               Plaintiff - Appellant,              D.C. No. 1:11-cv-01271-SAB

 v.

TUOLUMNE FIRE DISTRICT, AKA
Tuolumne Fire Protection District;
KENNETH HOCKETT,

               Defendants - Appellees.



NICHOLAS HART,                                     No. 14-16076

               Plaintiff - Appellant,              D.C. No. 1:11-cv-01271-SAB

 v.

KENNETH HOCKETT,

               Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                       Argued and Submitted October 23, 2015
                             San Francisco, California

Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.

      Benjamin Oyarzo and Nicholas Hart appeal a series of district court rulings

in their suit against the Tuolumne Fire District and various fire district officials.

                                            2
For the following reasons, we affirm the district court in part, vacate in part, and

remand.

      1.     We vacate the district court’s grant of summary judgment for the fire

district on the claims under California Labor Code section 1102.5. All parties

correctly agree that the district court erred in granting summary judgment based on

the plaintiffs’ failure to exhaust administrative remedies. Administrative

exhaustion is not generally required to bring a civil action under the California

Labor Code, and the specific section in question imposes no such requirement. Cal.

Lab. Code §§ 244(a), 1102.5; cf. Melgar v. CSK Auto, Inc., No. C-13-3769 EMC,

2014 WL 546915, at *4-5 (N.D. Cal. Feb. 7, 2014) (holding that administrative

exhaustion is not required for Labor Code cases brought before enactment of

section 244(a)). We remand so that the district court may consider in the first

instance the defendants’ alternative arguments for summary judgment.1

      2.     We affirm the district court’s grant of summary judgment for the fire

district on Oyarzo’s claim that he was improperly denied an administrative hearing

under the California Firefighters Procedural Bill of Rights Act, California

Government Code sections 3250-3262. Oyarzo alleged in his complaint and during



      1
        We therefore deny as moot the defendants’ Motion for Judicial Notice of
section 1102.5's legislative history.

                                           3
discovery that the fire district violated his procedural rights during an investigation

into his tenure as fire chief. Those allegations invoked protections under section

3253. In opposition to summary judgment, Oyarzo shifted his claim and alleged for

the first time that his termination triggered the right to an administrative appeal

under section 3254(b) because it was a punitive action. The district court did not

err in refusing to consider the belated claim. See La Asociacion de Trabajadores de

Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010) (holding

that a party could not effectively amend a complaint “by raising a new theory . . .

in its response to a motion for summary judgment”).

      3.     We affirm the district court’s grant of summary judgment for board

members Darlene Hutchins and Joseph Turner on Oyarzo’s First Amendment

claim that they deterred him from protected political activity. In his opposition to

summary judgment, Oyarzo stated that his deterrence claim relied on a

conversation he had with Turner, in which Oyarzo allegedly stated that he intended

to continue pursuing the annexation of additional land into the fire district. But

Oyarzo failed to mention the conversation in his complaint or disclose it in

response to an on-point interrogatory, revealing it for the first time in a declaration

supporting his opposition to summary judgment. The district court excluded the

evidence under Federal Rule of Civil Procedure 37(c)(1) and granted summary


                                           4
judgment as a result. We review a district court’s discovery sanctions for abuse of

discretion. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105 (9th

Cir. 2001). Given Oyarzo’s failure to include the relevant conversation in his

complaint or disclose it during discovery, the district court did not abuse its

discretion in excluding the evidence and granting summary judgment. See id. at

1106 (“[W]e give particularly wide latitude to the district court’s discretion to issue

sanctions under Rule 37(c)(1).”).

      4.     We affirm the district court’s grant of summary judgment for the fire

district on Hart’s First Amendment claim. Hart argues that the fire district as an

entity retaliated against him for engaging in protected political activity. Hart,

however, has failed to raise a genuine issue of material fact as to whether board

members other than Hockett acted with retaliatory intent. See Kawaoka v. City of

Arroyo Grande, 17 F.3d 1227, 1239 (9th Cir. 1994).

      5.     We vacate the district court’s sua sponte ruling that fire district board

members enjoyed absolute immunity for the board vote that reorganized the

district, resulting in Oyarzo’s demotion and Hart’s termination. A defendant bears

the burden to plead and prove an affirmative immunity defense. See Fed. R. Civ. P.

8(c); Slater v. Clarke, 700 F.3d 1200, 1203 (9th Cir. 2012). It is therefore improper

for a district court to independently raise the issue of absolute immunity and rule


                                           5
on it, at least where a plaintiff has no opportunity to respond. See generally Wong

v. Bell, 642 F.2d 359, 362 (9th Cir. 1981) (observing that a court must afford

plaintiffs an opportunity to respond to a district’s courts “sua sponte intention” to

dismiss a complaint). We remand so the parties may fully address whether the vote

in question was a legislative act and therefore conferred absolute immunity on the

board members. See Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998).2

      6.     We vacate the district court’s order reducing the compensatory

damages award. The court erroneously stated that it was acting pursuant to Rule

50 rather than Rule 59, as Hockett had not filed a Rule 50 motion. The district

court also erred in refusing to offer Hart a new trial after vacating the jury’s award

and substituting nominal damages of $1. Under the Seventh Amendment, “a court

has no authority, upon a motion for a new trial, ‘according to its own estimate of

the amount of damages which the plaintiff ought to have recovered, to enter an

absolute judgment for any other sum than that assessed by the jury.’” Hetzel v.




      2
         If the district court concludes that the defendant board members are not
entitled to absolute immunity, the court should address the board members’ claim
of qualified immunity. If the district court determines that the board members are
entitled to neither absolute immunity nor qualified immunity, then the court should
allow Hart to proceed with his First Amendment retaliation claim that alleges
liability for his termination.

                                           6
Prince William Cty., Va., 523 U.S. 208, 211 (1998) (quoting Kennon v. Gilmer,

131 U.S. 22, 29 (1889)).3

      7.       Finally, we vacate the district court’s ruling denying Hart attorney’s

fees in his action against Hockett. See 42 U.S.C. § 1988(b) (providing that a “court,

in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as

part of the costs” in a § 1983 action). Whether a fee award is justified will depend

on the result of Hart’s new trial on damages.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED4




      3
         We do not disturb the jury’s liability finding that Hockett impermissibly
retaliated against Hart before Hart’s termination.
      4
          Each party shall bear its own costs on appeal.

                                            7
