                                                                           FILED
                            NOT FOR PUBLICATION                             APR 21 2011

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




                            FOR THE NINTH CIRCUIT



ALFREDO KUBA, an individual and                  No. 09-56059
SAN DIEGO ANIMAL ADVOCATES, a
California 501(c)(3) nonprofit                   D.C. No. 3:07-cv-01274-MMA-
organization,                                    POR

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

SEA WORLD, INC., a Delaware
corporation, DBA Sea World Adventure
Parks; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                       Argued and Submitted March 7, 2011
                              Pasadena, California

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Alfredo Kuba and San Diego Animal Advocates (“Plaintiffs”) appeal the

district court’s grant of summary judgment in favor of Sea World, Inc. Plaintiffs’


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1983 action charges that Sea World abridged their First Amendment rights by

prohibiting staged protests inside its paid entrance parking lots.1 Because it

concluded that Plaintiffs failed to demonstrate the state action necessary to

establish a violation of § 1983, the district court held that the § 1983 claim failed.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                            I.

      To prevail on a § 1983 claim, plaintiffs must establish that Sea World acted

“under color of state law.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 295 n.2 (2001). Sea World is undeniably a private entity, but

its actions may nonetheless be attributed to the state if it has been endowed with

powers or functions traditionally governmental in nature; it willfully participated in

joint action with the state; it acted under the coerced influence of the state; or a

sufficiently close nexus exists between the state and the challenged action. See

Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir. 2002).




      1
         Plaintiffs also assert claims under the California Constitution, Article I,
Section 2 and California statutes protecting free speech rights. Upon granting
summary judgment to Sea World on plaintiffs’ federal claim, the district court
concluded that it lacked federal subject matter jurisdiction over plaintiffs’ state
claims, and declined to exercise supplemental jurisdiction. Plaintiffs thus remain
free to pursue these claims in state court.

                                            2
                                          A.

      The district court correctly concluded that Sea World does not perform a

public function. “To satisfy the public function test, the function at issue must be

both traditionally and exclusively governmental.” Lee v. Katz, 276 F.3d 550, 554

(9th Cir. 2002). The operation of a theme park for recreational purposes has long

been the province of private entrepreneurs, and thus it is not a traditional and

exclusive governmental function. See Villegas v. Gilroy Garlic Festival Ass’n, 541

F.3d 950, 955-56 (9th Cir. 2008) (en banc). Plaintiffs’ argument that Sea World

carries out the public function of regulating speech in a public forum because the

protest site connects with a public pedestrian and bicycle pathway was “raised for

the first time on appeal, and because [it was] never argued before the district court,

we deem [it] waived.” Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010).

Moreover, Plaintiffs have presented no evidence that this land has acquired a

traditional and exclusive public character by virtue of being “a freely accessible

public forum through which people pass on their way to” locations other than Sea

World. Lee, 276 F.3d at 555.

                                          B.

      The district court properly determined that Sea World did not willfully

participate in joint action with the city of San Diego. Joint action is found where


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“state officials and private parties have acted in concert in effecting a particular

deprivation of constitutional rights,” and “the state has so far insinuated itself into

a position of interdependence with [the private actor] that it must be recognized as

a joint participant in the challenged activity.” Franklin, 312 F.3d at 445 (citations

and quotations omitted). Sea World relied on a municipal anti-trespassing

ordinance to eject Plaintiffs and notified police about the demonstration after it

occurred, but those actions do not demonstrate the “substantial degree of

cooperation” that is required “before imposing civil liability for actions by private

individuals that impinge on civil rights.” Id. at 445.

                                           C.

      The district court correctly concluded that Sea World did not act under the

coerced influence of the state. “The compulsion test considers whether the

coercive influence or ‘significant encouragement’ of the state effectively converts a

private action into a government action.” Kirtley v. Rainey, 326 F.3d 1088, 1094

(9th Cir. 2003). Plaintiffs have not presented evidence showing that the City

encouraged or directed their ejection from Sea World, and “[m]ere approval of or

acquiescence in the initiatives of a private party is not sufficient to justify holding

the State responsible for those initiatives.” Blum v. Yaretsky, 457 U.S. 991, 1004-

05 (1982).


                                            4
                                           D.

      The district court correctly determined that there is not a close nexus, or

symbiotic relationship, between Sea World and the city of San Diego that results in

state action. “[T]he nexus test asks whether ‘there is such a close nexus between

the State and the challenged action that the seemingly private behavior may be

fairly treated as that of the State itself.’” Kirtley, 326 F.3d at 1094-95 (quoting

Brentwood, 531 U.S. at 295). Sea World leases a portion of publicly owned

Mission Bay Park pursuant to a long-standing city goal of providing aquatic-

themed recreation and education on the site. The lease is subject to conditions

relating to land use and programming. However, even these “significant links”

between Sea World and the city are not enough to satisfy the nexus test without

further evidence of substantial interconnection. Kirtley, 326 F.3d at 1095; see also

Brunette v. Humane Soc’y of Ventura Cnty., 294 F.3d 1205, 1213 (9th Cir. 2002).

Rather, state action arises from “pervasive entwinement to the point of largely

overlapping identity.” Brentwood, 531 U.S. at 303; cf. NCAA v. Tarkanian, 488

U.S. 179, 192-99 (1988). There is no evidence that city employees work at Sea

World or are involved in its day to day operations, or that the financial relationship

extends substantially beyond the lease, and thus there is no basis for finding state

action through a close nexus or symbiotic relationship.


                                           5
                                           II.

      The district court erred by excluding excerpts from a city of San Diego

website, but the error was harmless. Plaintiffs submitted the excerpts into evidence

along with live hyperlinks to a municipal website, and therefore they are self-

authenticating under Federal Rule of Evidence 902(5). Sea World’s argument that

this was insufficient for authentication because any party can create a website fails

to recognize that the United States General Services Administration administers the

.gov domain and restricts access to verified governmental entities. See 41 C.F.R.

§§ 102-173.5, 102-173.10, 102-173.35. However, admitting these facts about

Mission Bay Park into evidence would not have changed the outcome of the state

action analysis, and therefore the error was harmless. See Sanchez v. Aerovias De

Mexico, S.A. De C.V., 590 F.3d 1027, 1029 (9th Cir. 2010).

                                           III.

      Plaintiffs’ requests for judicial notice are denied. The materials in Plaintiffs’

first request “are not relevant to the disposition of this appeal” as they relate to an

incident that occurred more than two years after the event giving rise to the current

litigation. Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir. 2010). The materials in

the second request are not properly noticeable because they were available prior to




                                            6
the district court proceedings but were not introduced there. See Huynh v. Chase

Manhattan Bank, 465 F.3d 992, 1000 (9th Cir. 2006).




      The district court’s decision granting summary judgment in favor of Sea

World is AFFIRMED.




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