                                                                           FILED
                            NOT FOR PUBLICATION                              DEC 02 2013

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



                            FOR THE NINTH CIRCUIT


JOHN GALLAGHER,                                  No. 11-56469

              Plaintiff - Appellant,             D.C. No. 3:08-cv-00886-AJB-
                                                 WVG
  v.

SAN DIEGO UNIFIED PORT                           MEMORANDUM*
DISTRICT; DOES 1 through 20,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                        Argued and Submitted June 4, 2013
                        Submission Withdrawn June 6, 2013
                         Resubmitted November 20, 2013
                               Pasadena, California

Before: THOMAS, SILVERMAN and FISHER, Circuit Judges.

       John Gallagher appeals the decisions of the district court dismissing his

Contract Clause and tortious breach of contract claims and granting summary

judgment to the District on his retaliation claim under the Americans with


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Disabilities Act (ADA). Reviewing de novo, we affirm in part, vacate in part and

remand.

      1.     The district court properly dismissed Gallagher’s Contract Clause

claim under Federal Rule of Civil Procedure 12(b)(6). Under California law, the

meaning of the November 2000 anchoring settlement is a question of law for the

court to decide because it does not involve the credibility of extrinsic evidence.

See City of Hope Nat’l Med. Ctr. v. Genentech, Inc., 181 P.3d 142, 156 (Cal.

2008); see also Garcia v. Truck Ins. Exch., 682 P.2d 1100, 1106 (Cal. 1984)

(holding that, for purposes of contract interpretation, drawing reasonable

inferences from uncontroverted evidence is for the court rather than the jury to

decide). The settlement required the District to provide Gallagher with an A-9

Anchorage permit subject to all regulations governing the A-8 Anchorage.

Gallagher’s rights under the settlement were therefore subject to all current and

future A-8 regulations, including the 2006 amendments to the A-8 regulations.

Thus, contrary to Gallagher’s claim, the 2006 amendments did not impair his

vested contractual rights under the settlement agreement. The district court

therefore properly dismissed this claim.

      2.     The district court properly dismissed Gallagher’s tortious breach of

contract claim. When the district court dismissed the second amended complaint,


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it gave Gallagher leave to amend the complaint to address the deficiencies in the

second amended complaint, but not to raise new claims. The district court did not

abuse its discretion by imposing conditions on leave to amend or by refusing to

allow Gallagher to amend his complaint to add new claims where Gallagher had

already had several opportunities to perfect his claims. See Miller v.

Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004) (“Where the plaintiff has

previously filed an amended complaint, . . . the district court’s discretion to deny

leave to amend is ‘particularly broad.’” (quoting Chodos v. W. Publ’g Co., 292

F.3d 992, 1003 (9th Cir. 2002))).

      3.     The district court erred by granting summary judgment to the District

on Gallagher’s ADA retaliation claim. In August 2001, the District issued

Gallagher an A-9 Anchorage permit providing for “No expiration date as long as

vessel passes normal inspections.” The District does not argue, and the record

does not suggest, that Gallagher’s vessel ever failed inspection. Nonetheless, when

Gallagher sought permission to return his vessel to the water in 2007, the District

refused to honor the 2001 permit or otherwise to provide Gallagher with anchoring

rights, instead faulting Gallagher for failing to renew a second permit that, in

Gallagher’s view, should never have been required in the first place. The record

makes clear, moreover, that the District’s decision in 2007 not to honor the 2001


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permit was made by the District’s deputy attorney, who was aware of Gallagher’s

extensive and successful litigation against the District on behalf of individuals with

disabilities. In light of these facts, Gallagher has made out a prima facie case of

retaliation. See Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004).

      Because Gallagher has established a prima facie case, the District was

required to articulate a legitimate and non-retaliatory reason for refusing to honor

the August 2001 permit. The District has done so. It says that it considered the

August 2001 permit to be an implementation of the November 2000 settlement and

the 2000 version of A-8 regulations, under which the permit would have been valid

for six months and, having not been renewed by Gallagher, would have expired in

February 2002.

      Because the District has articulated a non-retaliatory reason for its actions,

Gallagher has the burden of raising a genuine factual issue as to whether the

District’s proffered reason is a pretextual ruse to mask retaliatory action.

Gallagher has satisfied this burden. Although the District’s explanation for its

actions is one plausible inference from the record, it is not the only reasonable

inference. Of significance, the District’s explanation runs counter to the express

and unequivocal “no expiration date” language of the August 2001 permit.

Furthermore, even if the District sincerely believed that the August 2001 permit


                                           4
expired in 2002, the District’s failure to take any responsibility for Gallagher’s

contrary understanding could be viewed by the trier of fact as evidence of ill

motive. A reasonable jury could find that a fair-minded District would have made

some effort to accommodate Gallagher in 2007 (as, for example, by waiving the

renewal deadline) in light of the District’s responsibility for misleading Gallagher.

Gallagher has therefore presented sufficient evidence of pretext to survive

summary judgment. See Earl v. Nielsen Media Research, Inc., 658 F.3d 1108,

1112-13 (9th Cir. 2011); Vasquez v. Cnty. of L.A., 349 F.3d 634, 642 (9th Cir.

2003); Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007).

      We recognize that there was a substantial gap in time between Gallagher’s

protected activity and the alleged retaliatory action. See Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273-74 (2001); Manatt v. Bank of Am., 339 F.3d 792, 802

(9th Cir. 2003). Gallagher, however, had no contact with the District between

2001 and 2006, and, he asserts, no contact with high-ranking District officials

between the end of his litigation and the 2007 decision to deny him anchoring

rights. When he did have contact with these officials in 2007, he was not treated in

an accommodating manner. Under these circumstances, the substantial gap in time

between the protected activity and the adverse action is inadequate to negate an




                                           5
inference of a causal link between the two. A reasonable jury could find a

retaliatory motive notwithstanding the passage of time.

      4.     The district court did not err by dismissing Gallagher’s third cause of

action for injunctive relief. These accessibility-related claims were covered by the

release in the August 2000 settlement agreement.

      The district court’s dismissal of Gallagher’s Contract Clause, tortious breach

of contract and injunctive relief claims is affirmed. The district court’s entry of

summary judgment in favor of the District on Gallagher’s ADA retaliation claim is

vacated. The case is remanded for further proceedings on Gallagher’s ADA

retaliation claim. Each party shall bear its own costs on appeal.

      AFFIRMED IN PART, VACATED IN PART AND REMANDED.




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