                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 27 2013

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




                            FOR THE NINTH CIRCUIT



SHARON S. HENRY,                                 No. 11-16927

              Plaintiff - Appellant,             D.C. No. 3:09-cv-00628-RS

  v.
                                                 MEMORANDUM *
BANK OF AMERICA CORPORATION;
et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                      Argued and Submitted March 15, 2013
                            San Francisco, California

Before: WALLACE and IKUTA, Circuit Judges, and GARBIS, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
             The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
       Sharon Henry appeals from the district court’s judgment disposing of her

state claims against Nancy Mendoza and Bank of America and her federal and state

civil rights claims against Calvin Chow, Raymond Lee, and the City and County of

San Francisco. We have jurisdiction under 28 U.S.C. § 1291. We note at the

outset that Henry’s claims arise from a perfect storm of coincidences and a case of

mistaken identity and that her actions in this matter were blameless. Moreover, she

presented nonfrivolous claims in her complaint. Nevertheless, we affirm the

district court’s orders.

       The Anti-SLAPP statute applies to Henry’s state claims against Mendoza

and Bank of America because the “principal thrust or gravamen” of these claims is

based on Mendoza’s report to the police, and the record does not conclusively

establish that Mendoza’s report to the police was unlawful. Dwight R. v. Christy

B., 151 Cal. Rptr. 3d 406, 415–416 (Ct. App. 2013). The district court did not err

in striking these claims under the Anti-SLAPP statute. See Equilon Enters. v.

Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002). Henry failed to adduce any

evidence of circumstances suggesting a discriminatory motive on the part of

Mendoza and, therefore, failed to show a probability of prevailing on her Unruh

Act discrimination claim. See Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 355

(2000). Because Henry likewise failed to show that Mendoza’s conduct in


                                         2
dishonoring her check was extreme and outrageous as a matter of law, she did not

show a probability of prevailing on her intentional infliction of emotional distress

claim.1

      The district court was correct to grant Mendoza and Bank of America

summary judgment with respect to Henry’s negligence claim. Henry does not

claim she suffered any physical injuries as a result of Mendoza’s conduct in

dishonoring the check, and the emotional injuries she identified are insufficient to

support a negligence claim. See Gilchrist v. Jim Slemons Imps., Inc., 803 F.2d

1488, 1499 (9th Cir. 1986).

      Officers Chow and Lee are entitled to qualified immunity with regard to

Henry’s § 1983 claim for false arrest because “it is reasonably arguable that there

was probable cause for arrest.” Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076

(9th Cir. 2011). In particular, the officers learned that Henry’s check was written

by a Kathleen Wilkinson, that there was only one Kathleen Wilkinson in Bank of

America’s database, that this Wilkinson was out of the country, and that this




      1
       Henry does not challenge the district court’s ruling that 31 U.S.C. §
5318(g)(3)(A) precludes her from basing this claim or any other claim on
Mendoza’s report to the police.

                                          3
Wilkinson’s signature did not match the signature on Henry’s check.2 Based on

the same facts, the officers are entitled to state law statutory immunity with respect

to Henry’s state law claims. See Cal. Penal Code § 847(b)(1).

      The district court did not err in granting summary judgment in favor of the

City and County of San Francisco. Henry did not produce evidence that the City

and County of San Francisco “has adopted an illegal or unconstitutional policy or

custom” that resulted in a violation of Henry’s constitutional rights, Robinson v.

Solano Cnty., 278 F.3d 1007, 1016 (9th Cir. 2002) (en banc), so it is entitled to

summary judgment on Henry’s § 1983 claim. The City and County of San

Francisco is entitled to immunity from Henry’s state law claims because it shares

the immunity of officers Chow and Lee. See Cal. Gov’t Code § 815.2(b).

      AFFIRMED.




      2
        As it turned out, Bank of America and Mendoza had identified the wrong
Kathleen Wilkinson. The Kathleen Wilkinson who wrote Henry’s check was not
in the bank’s database.

                                           4
