                                                                                FILED
                               NOT FOR PUBLICATION                               APR 24 2013

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



                                FOR THE NINTH CIRCUIT


 MICHAEL HUNT,                                      No. 12-55709

                  Plaintiff - Appellant,            D.C. No. 2:06-cv-04691 DDP-SS

      v.
                                                    MEMORANDUM *
 CITY OF LOS ANGELES,

                 Defendant - Appellee.



                       Appeal from the United States District Court
                           for the Central District of California
                       Dean D. Pregerson, District Judge, Presiding

                                 Submitted April 22, 2013**

Before: GOODWIN and RAWLINSON, Circuit Judges, and SEABRIGHT,***1
District Judge.

           Michael Hunt (“Hunt”) brought this action challenging several of the City of



 *
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
       The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
         The Honorable J. Michael Seabright, United States District Judge for the
District of Hawaii, sitting by designation.
Los Angeles’ (the “City”) ordinances aimed at preventing vending on the Venice

Beach Boardwalk (the “Boardwalk”), including Los Angeles Municipal Code

(“LAMC”) § 42.15 (2004), LAMC § 42.15 (2006), and LAMC § 63.44, none of

which is currently in effect. This is now the parties’ second time on appeal. In the

first appeal, we affirmed the district court’s summary judgment determinations that

Hunt has standing to challenge LAMC § 42.15 (2004), that the ordinance is void

for vagueness, and that Hunt’s claims as to LAMC § 42.15 (2006) fail. Hunt v.

City of L.A., 638 F.3d 703 (9th Cir. 2011). The district court did not, however,

address LAMC § 63.44 in light of Hunt’s assertions at the summary judgment

hearing that his claims were primarily centered on LAMC

§ 42.15, see Hunt v. City of L.A., 601 F. Supp. 2d 1158, 1160-61, 1161 n.1 (C.D.

Cal. 2009), and the parties proceeded to trial on damages as to § 42.15 only. On

appeal, we rejected the City’s limited argument that Hunt’s assertion at the

summary judgment hearing constituted an abandonment of his § 63.44 claim and

remanded for the district court to substantively address this claim in the first

instance. Hunt, 638 F.3d at 718-19.

      On remand, the City sought dismissal of Hunt’s § 63.44 claim, arguing that

Hunt lacks standing and that the claim is moot. The district court granted the

City’s motion, albeit on the different ground that Hunt abandoned this claim after


                                           2
summary judgment by failing to proceed with the claim at trial. Hunt now appeals

the dismissal of his LAMC § 63.44 claim, arguing, among other things, that the

district court failed to follow our previous directions that the district court must

substantively address this claim and that we already determined that he did not

abandon the claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and based

upon de novo review, we affirm.

      Hunt’s argument relies on two critical assumptions, neither of which is

supported by the record. First, Hunt suggests that our previous ruling that he did

not abandon his § 63.44 claim at summary judgment prevented the district court

from determining on remand that Hunt abandoned this claim at trial. Contrary to

Hunt’s argument, we previously addressed a limited question -- whether Hunt

abandoned his § 63.44 challenge during oral argument on the summary judgment

motions -- and we were not presented with the question of whether Hunt

abandoned this claim at any time subsequent to summary judgment. See Hunt, 638

F.3d at 719. As a result, we stated that “[t]he district court should have therefore

substantively addressed Plaintiffs’ claims as to § 63.44,” and remanded to the

district court “to address § 63.44 in the first instance.” Id. Thus, on remand, the

district court did precisely what we required -- it substantively addressed Hunt’s

§ 63.44 challenge by determining that Hunt abandoned this claim after summary


                                           3
judgment.

      Hunt’s second assumption is that the district court made an abandonment

determination at summary judgment such that Hunt had no option but to proceed to

trial solely on his LAMC § 42.15 (2004) challenge. Contrary to Hunt’s assertion,

at summary judgment the district court merely acknowledged that it was not

addressing § 63.44 because “Plaintiffs agreed at oral argument that their suit

centers on the two versions of § 42.15.” Hunt, 601 F. Supp. 2d at 1160-61; see

also id. at 1161 n.1 (explaining that although the briefing addressed the facial

validity of § 63.44 and plaintiffs assert that they were threatened under § 63.44, “at

oral argument, Plaintiffs explained that they are primarily challenging the two

versions of § 42.15”). The district court therefore concluded in its summary

judgment order that “[i]t appears to the Court that the only issue remaining in this

case are the various potential damages to which Plaintiffs may or may not be

entitled with respect to the 2004 ordinance.” Id. at 1183 (emphasis added).

      Because nothing in the district court’s order affirmatively dismissed the

§ 63.44 claim, the ball was in Hunt’s court to decide how to proceed with this

claim. And to the extent the district court’s order was at all ambiguous, Hunt, as

the master of his complaint and as advocate for his claims, was in the best position

to seek clarification regarding the scope of the summary judgment order to prevent


                                          4
any inadvertent abandonment. Hunt instead chose to do nothing -- Hunt does not

dispute that he proceeded to trial solely on LAMC § 42.15 (2004). Hunt’s failure

to present this claim at trial constitutes an abandonment of this claim. See

Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) (“Although the

Section 1983 cause of action in his complaint included First Amendment claims,

he has waived these claims by failing to object to their exclusion from the

instructions.”).

      In opposition, Hunt cites to Jimenez v. Franklin, 680 F.3d 1096 (9th Cir.

2012), to argue that the City waived the argument that Hunt abandoned his

§ 63.44 challenge by failing to raise it with the panel on the first appeal. Jimenez

does not apply to these facts -- Jimenez held that an appellant may not, on a second

appeal, raise a new argument that could have been raised on the first appeal. Id. at

1099-1100. In comparison, in this action the City did not raise the abandonment

issue on remand. Rather, the district court raised this issue on its own, and nothing

in our remand order prevented the district court from finding abandonment based

on facts that were not presented to us.

AFFIRMED.




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