                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 16 2010

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



                            FOR THE NINTH CIRCUIT


JOHN F. CHAMPAGNE, Jr.,                          No. 08-16368

              Plaintiff - Appellant,             D.C. No. 3:06-CV-05425-JSW

  and                                            ORDER and
                                                 MEMORANDUM*
GARY A. CHAMPAGNE,

              Plaintiff,

  v.

THE CITY AND COUNTY OF SAN
FRANCISCO; et al.,

              Defendants - Appellees.



JOHN F. CHAMPAGNE, Jr. and GARY                  No. 08-17180
A. CHAMPAGNE,
                                                 D.C. No. 3:06-cv-05425-JSW
              Plaintiffs - Appellants,

  v.

THE CITY AND COUNTY OF SAN
FRANCISCO, a municipal corporation; et
al.,

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



JOHN F. CHAMPAGNE, Jr. and GARY               No. 08-17503
A. CHAMPAGNE,
                                              D.C. No. 3:06-cv-05425-JSW
             Plaintiffs - Appellants,

  v.

THE CITY AND COUNTY OF SAN
FRANCISCO, a municipal corporation; et
al.,

             Defendants - Appellees.


                  Appeal from the United States District Court
                     for the Northern District of California
                   Jeffrey S. White, District Judge, Presiding

                       Argued Submitted October 6, 2010
                           San Francisco, California

Before: REINHARDT and BERZON, Circuit Judges, and POLLAK, Senior
District Judge.**




       **
             The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
                                        2
             This case is resubmitted as of the date of this memorandum.



      Summary judgment was appropriate in this case, as was the denial of

sanctions; however, we reverse the award of attorneys’ fees.1

Federal Due Process Claim

      Even assuming that Champagne possesses the constitutional right he

asserts,2 he has failed to offer proof that the Defendants violated it. Defendants

simply revoked code violation determinations to which Champagne had no

entitlement. In addition, the state court had dismissed the cause of action that was

based on the alleged code violations before the alleged improprieties took place.

After the determinations were revoked, Champagne was in the same position he

had been in before the Defendants made them. The district court correctly granted

summary judgment on the due process claim.



      1
         We grant Champagne’s February 24, 2009 motion to deem his Reply Brief
filed as-is and to take judicial notice of the documents attached thereto.
      2
        After arguing that the right he seeks to enforce is the right to “own and
manage his property,” Champagne states at one point in his brief that he presented
sufficient facts to support his claim that “Defendants’ actions improperly interfered
with his right to manage his property.” At oral argument, Champagne framed his
asserted right as the constitutional right “to evict the tenant without fraudulent
interference by the city.” Because we need not address the constitutional issues in
this case, we do not address whether any of these legal theories are viable.
                                          3
      On appeal, Champagne alleges two new constitutional violations. However,

“[t]he parties cannot raise new issues on appeal to secure a reversal of the lower

court’s summary judgment determination.” BankAmerica Pension Plan v.

McMath, 206 F.3d 821, 825 (9th Cir. 2000). We do not consider these new claims.

State Law Claims

      In his opening brief, Champagne states that he has submitted “sufficient

evidence supporting each of his state law claims sufficient the [sic] defeat

summary judgment.” As proof of this proposition, Champagne simply cites to his

opposition to summary judgment filed with the district court. He provides no other

legal argument in the section entitled “Plaintiff has evidence supporting each of his

state law claims.” This sentence alone is not sufficient to preserve those claims.

See Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 924 (9th

Cir. 1988).

      Champagne does challenge the district court’s rulings on causation and

qualified immunity. The district court relied on at least one additional ground for

its grant of summary judgment as to each of the state law claims. Champagne did

not challenge those other grounds. Accordingly, Champagne has waived his state

law claims. Id.

Discovery


                                          4
         Champagne contends that the district court erred by upholding the

magistrate judge’s order denying his request to enlarge discovery. However, “[a]

district court is vested with broad discretion to permit or deny discovery, and a

decision to deny discovery will not be disturbed except upon the clearest showing

that the denial of discovery results in actual and substantial prejudice to the

complaining litigant.” Laub v. United States Dep’t of Interior, 342 F.3d 1080, 1093

(9th Cir. 2003) (internal quotations omitted). There is no clear showing of actual

and substantial prejudice in this case.

         Champagne also contends that the district court erred by denying his request

to continue the summary judgment hearing pursuant to Federal Rule of Civil

Procedure 56(f). However, the district court did not abuse its discretion in

concluding that none of the discovery in question was “essential to justify”

Champagne’s opposition to the motion for summary judgment. See Fed. R. Civ. P.

56(f).

Attorneys’ Fees

         We have repeatedly held that attorneys’ fees in civil rights cases may be

awarded to a defendant only in “exceptional circumstances.” See, e.g., Barry v.

Fowler, 902 F.2d 770, 773 (9th Cir. 1990). Attorneys’ fees are not appropriate for

civil rights plaintiffs “launching a good faith effort to advance a novel theory” as


                                            5
long as the party’s claims are not “wholly without merit.” Legal Services of N.

Cal., Inc. v. Arnett, 114 F.3d 135, 141 (9th Cir. 1997). At the initial case

management conference, the district court acknowledged that this was a “very

unusual and fact-intensive case, raising novel questions of law.” (emphasis added).

Thus, at the time the Champagnes brought this case, it did not appear to be

frivolous, meritless, or vexatious. Moreover, even if the law or facts “appear

questionable or unfavorable at the outset,” that does not make the case frivolous,

because “[d]ecisive facts may not emerge until discovery or trial.” Christianburg

Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). Here, significant facts did

emerge during discovery, although they were not significant enough under the

circumstances to change the result. The award of attorneys’ fees to the Defendants

is reversed.

Sanctions

      We find no error or abuse of discretion in the district court’s denial of

Plaintiffs’ motion for sanctions upon Defendants for filing the attorneys’ fees

motion.

AFFIRMED in part and REVERSED in part.




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