                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 7 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WARREN MAURAN,                                  No.    17-56494

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-07808-RGK-JC
 v.

WALMART INC., a Delaware corporation;           MEMORANDUM*
et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                    Argued and Submitted September 12, 2019
                              Pasadena, California

Before: WARDLAW, BERZON, and BADE, Circuit Judges.

      Warren Mauran appeals the district court’s entry of summary judgment in

favor of Walmart on his age discrimination, failure to prevent discrimination, and

declaratory relief claims under California’s Fair Employment and Housing Act

(“FEHA”), Cal. Gov. Code §§ 12920–12923, and his wrongful termination in

violation of public policy and defamation claims. Mauran also appeals the district


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court’s orders denying his request to extend the discovery schedule, striking certain

filings for violating the local rules, and awarding costs to Walmart. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s entry of

summary judgment de novo, Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th

Cir. 2011), and affirm. We review case management rulings and awards of costs for

an abuse of discretion, Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007);

Draper v. Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016), and affirm the district

court’s case management rulings, reverse the denial of Mauran’s motion to re-tax

costs, and vacate.

                                          I.

      Mauran argues he was wrongfully terminated from his position at Walmart

because of his age. The district court properly characterized Mauran’s evidence as

circumstantial and applied the McDonnell Douglas burden-shifting analysis to

Mauran’s employment discrimination claims. See DeJung v. Superior Court, 87

Cal. Rptr. 3d 99, 111 (Cal. Ct. App. 2008). The district court correctly concluded

that although Mauran established a prima facie case of age discrimination,

Walmart articulated legitimate, non-discriminatory reasons for Mauran’s

termination, and Mauran failed to present sufficient evidence to create a triable

issue that Walmart’s proffered reasons were mere pretext for unlawful




                                          2
discrimination. See Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1146–47

(9th Cir. 2017) (citing Guz v. Bechtel Nat’l Inc., 8 P.3d 1089, 1113 (Cal. 2000)).

      There was evidence that one of the decisionmakers whose earlier discipline

of Mauran was part of the basis for his eventual termination had made negative

remarks about Mauran’s age. But any plausible connection between those remarks

and the disciplinary decision was absent because (1) the conclusion that Mauran

violated AP-09 was a reasonable one, given the wording of the policy and the

behavior shown on the videotape in the record, and (2) a much younger employee

was terminated for the same behavior for which Mauran was “coached” but not

terminated. The totality of the evidence, viewed in light most favorable to Mauran,

was not sufficiently specific or substantial to show that Walmart’s proffered

reasons for terminating Mauran were unworthy of credence. See Cornwell v.

Electra Cent. Credit Union, 439 F.3d 1018, 1028–29 (9th Cir. 2006).

      Because Mauran failed to establish his age discrimination claim under the

FEHA, his failure to prevent discrimination and wrongful termination in violation

of public policy claims also failed. See Caldera v. Dep’t of Corrs. & Rehab., 235

Cal. Rptr. 3d 262, 273 (Cal. Ct. App. 2018); Hanson v. Lucky Stores, Inc., 87 Cal.

Rptr. 2d 487, 496–97 (Cal. Ct. App. 1999).

      The district court also correctly applied Harris v. City of Santa Monica, 294

P.3d 49 (Cal. 2013), and concluded that the FEHA authorizes declaratory relief as


                                         3
a remedy to prevent ongoing discrimination, not as an independent cause of action.

See id. at 67–68. Because Mauran failed to establish his age discrimination claim,

the district court correctly entered summary judgment on Mauran’s claim for

declaratory relief.

                                         II.

      Mauran also argues that Walmart’s stated reason for his termination was

defamatory and was published during the meeting when he was terminated and

when he was required to explain the reason for his termination to prospective

employers. The district court correctly concluded that even if the statement were

published, it fell under the common interest privilege, codified in section 47 of

California’s Civil Code, because Mauran failed to show that Walmart acted with

actual malice. See Noel v. River Hills Wilsons, Inc., 7 Cal. Rptr. 3d 216, 220–21

(Cal. Ct. App. 2003) (citing Lindquiest v. Reusser, 875 P.2d 1279, 1285 (Cal.

1994)). Because Mauran did not establish that Walmart was motivated by age-

related animus, and failed to make any alternative showing of actual malice,

summary judgment on Mauran’s defamation claim was appropriate. See King v.

United Parcel Serv., Inc., 60 Cal. Rptr. 3d 359, 372 (Cal. Ct. App. 2007).

                                         III.

      The district court did not abuse its discretion in denying Mauran’s motion to

extend the discovery deadline or by striking two filings that violated the local


                                          4
rules. See Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir.

2005); Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002). The district

court, however, abused its discretion in denying Mauran’s motion to re-tax costs.

The district court failed to appreciate the potential chilling effect on future civil

rights actions or to consider whether severe injustice would result from an award of

costs. See Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079–80 (9th Cir. 1999).

The district court also abused its discretion by failing to consider the economic

disparity between the parties. See Draper, 836 F.3d at 1088–89. We therefore

reverse the denial of Mauran’s motion to re-tax costs, vacate the award of costs to

Walmart, and remand to the district court to reconsider its cost award in light of

this disposition.

      AFFIRMED in part; REVERSED and VACATED in part; REMANDED.




                                            5
                                                                           FILED
      Warren Mauran v. Walmart, Inc., No. 17-56494
                                                                            OCT 7 2019
      Bade, Circuit Judge, dissenting in part.                          MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

      I respectfully dissent from the conclusion in part III that the district court

abused its discretion in awarding costs to Walmart. The district court properly

applied Rule 54(d)(1), considered Mauran’s arguments against awarding costs, and

did not abuse its discretion by concluding that Mauran had not rebutted the

presumption for awarding costs to the prevailing party. See Fed. R. Civ. P.

54(d)(1); Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003).

I would affirm the award of costs.
