                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 25 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DAVID LONG, Jr., an individual suing on          No. 12-57044
behalf of himself, all those similarly
situated and the general public,                 D.C. No. 2:11-cv-02128-JAK-
                                                 AJW
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

PLAYBOY ENTERPRISES
INTERNATIONAL, INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                   John A. Kronstadt, District Judge, Presiding

                       Argued and submitted March 4, 2014
                                     UCLA

Before: KOZINSKI, Chief Judge, and IKUTA and NGUYEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      David Long appeals from the district court’s order granting summary

judgment in favor of Playboy Enterprises International, Inc. (PEII). We have

jurisdiction under 28 U.S.C. § 1291.

      The district court did not err by holding that Long must show intentional

discrimination in order to bring an action under section 52 of the California Civil

Code for violations of sections 51.5 and 51.6 of the California Civil Code. See

Harris v. Capital Growth Investors XIV, 805 P.2d 873, 891–93 (Cal. 1991).

Although the California Supreme Court held that section 52 should be interpreted

in a different manner for violations of section 51(f), see Munson v. Del Taco, Inc.,

208 P.3d 623, 627–28 (Cal. 2009), the Court’s reasons for this exception are not

applicable to sections 51.5 and 51.6, because neither the language nor legislative

history of these sections provides a basis for concluding that the California

Legislature intended to impose strict liability for violations of sections 51.5 and

51.6. Nor can we impute liability to PEII under sections 51.5 and 51.6, because the

lessor does not have strict liability under those sections, see Botosan v. Paul

McNally Realty, 216 F.3d 827, 832–33 (9th Cir. 2000), and there was no

employment relationship between PEII and Marcovici, see Phiffer v. Proud Parrot

Motor Hotel, Inc., 648 F.2d 548, 552 (9th Cir. 1980).




                                          2
      Long did not raise a genuine issue of material fact that PEII had knowledge

of MIX’s discriminatory pricing scheme, let alone that PEII had discriminatory

intent. Evidence that PEII was involved in setting up and providing logistical

support for the party does not by itself give rise to an inference that PEII had

knowledge about pricing. Nor does Thomerson’s failure to retain promotional

materials relevant to the party support an adverse inference against PEII in the

absence of any evidence that Thomerson received such materials or that relevant

discovery materials were destroyed, not produced “in response to [the] litigation,”

or otherwise withheld in bad faith. See Akiona v. United States, 938 F.2d 158, 161

(9th Cir. 1991). Similarly, arguments attacking a witness’s credibility do not

create a genuine issue of material fact without supporting evidence. See, e.g.,

Robinson v. Adams, 847 F.2d 1315, 1317 (9th Cir. 1988). Accordingly, the district

court did not err in granting summary judgment in PEII’s favor.

      Nor did the district court err in rejecting Long’s request for further discovery

in order to authenticate screenshots from web sites showing discriminatory pricing

for the party. Long had several months to conduct further discovery between the

submission of PEII’s motion for summary judgment and hearing in which

additional time was requested. Failing to diligently pursue discovery in the past is

sufficient reason to deny further discovery. See Nidds v. Schindler Elevator Corp.,


                                          3
113 F.3d 912, 921 (9th Cir. 1997). Long also failed to submit an affidavit in

support of his request, as required by Federal Rule of Civil Procedure 56(d).

Noncompliance with the terms of Rule 56(d) “provides an adequate ground for us

to affirm the district court’s denial.” State of Cal., ex rel Cal. Dep’t of Toxic

Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998).

      AFFIRMED.




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