                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 03 2016

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



                            FOR THE NINTH CIRCUIT


BERNADET GUEVARRA,                              No. 13-17457

              Plaintiff - Appellant,            D.C. No. 4:13-cv-02267-CW

 v.
                                                MEMORANDUM*
SETON MEDICAL CENTER, et al.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Northern District of California
                 Claudia Wilken, Senior District Judge, Presiding

                     Argued and Submitted February 10, 2016
                            San Francisco, California

Before: HAWKINS and MURGUIA, Circuit Judges and MURPHY,** District
Judge.

      Plaintiff-Appellant Bernadet Guevarra (“Guevarra”) was terminated from her

position as a nurse at Seton Medical Center (“Seton”) after she posted a message on

her Facebook page that contained perceived threats against her supervisor. A

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Stephen Joseph Murphy III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
colleague of Guevarra’s reported her post to Seton officials.           The California

Unemployment Insurance Appeals Board (“CUIAB”) subsequently denied her

unemployment benefits. After the conclusion of both her unemployment benefits

proceedings and a state bench trial in a civil rights suit Guevarra filed against Seton,1

Guevarra initiated this action against the CUIAB, its Chairman Robert Dresser

(“Dresser”), and Seton.

      She now appeals the dismissal with prejudice of her federal constitutional due

process and freedom of speech claims under 42 U.S.C. § 1983 against the CUIAB and

Dresser, and her breach of contract and California Constitution free speech claims

against Seton. Guevarra also moves the Court to certify to the California Supreme

Court the question of whether a violation of the California Constitution’s free speech

clause requires state action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm the dismissal and deny Guevarra’s motion for certification.

      I. Claims Against the CUIAB and Dresser

      The CUIAB found Guevarra ineligible for benefits under Unemployment

Insurance Code section 1256 because she was fired for “misconduct connected with

work.”    The CUIAB held that Guevarra was let go because her Facebook



      1
        At oral argument, the parties informed the Court that the state court ruled for
Seton, and Guevarra’s appeal is currently pending.

                                           2
post—visible to all her “friends” on the site, including fellow Seton

employees—violated Seton’s policy against threatening or using abusive language

against co-workers.

      Dissatisfied, Guevarra filed a petition for writ of administrative mandate in San

Mateo County Superior Court. She hinged her petition on the theory that the

CUIAB’s decision abridged her constitutional freedoms. Since Guevarra failed to

name Seton, a real party in interest, and was precluded from doing so by the statute

of limitations, the superior court upheld the CUIAB’s decision and dismissed her

petition with prejudice.

      The Rooker-Feldman doctrine now precludes federal subject matter jurisdiction

over her claims against the CUIAB and Dresser because they comprise a de facto

appeal of the state court’s dismissal of Guevarra’s petition. Rooker-Feldman applies

when a plaintiff asserts error by the state court as an injury, and seeks relief from the

state court judgment as a remedy. Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th

Cir. 2004).

      Here, Guevarra does both. Adjudication of her constitutional claims would

necessitate examining the state court’s decision, and granting relief would require

disturbing it. See Bianchi v. Rylaarsdam, 334 F.3d 895, 901–02 (9th Cir. 2003)

(holding that due process claim against state court judge for bias was “inextricably


                                           3
intertwined” with the state court’s decision, and thus beyond the federal court’s

subject matter jurisdiction).

      Second, Guevarra’s § 1983 claims fail because the CUIAB enjoys absolute

Eleventh Amendment immunity from suits for damages and the injunctive relief

Guevarra seeks. See Mitchell v. Forsyth, 472 U.S. 511, 520 (1985). The Eleventh

Amendment likewise insulates Dresser, named in his official capacity, from

Guevarra’s claim for damages, and she fails to plead his personal involvement in her

case, beyond merely citing his status as Chairman of the CUIAB, that could sustain

the claim for equitable relief. Flint v. Dennison, 488 F.3d 816, 824–25 (9th Cir.

2007).

      Given that Guevarra offered no facts or theories in her briefs or at oral argument

that could save these claims by amendment, dismissal with prejudice was appropriate.

      II. Claims Against Seton

      The district court also properly dismissed Guevarra’s claims for breach of

contract and breach of the covenant of good faith and fair dealing for Guevarra’s

failure to exhaust binding grievance arbitration procedures set forth in the Contractual

Bargaining Agreement (“CBA”) between Seton and her union.

      Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. §

185, establishes federal jurisdiction over “[s]uits for violation of contracts between an


                                           4
employer and a labor organization.” It displaces state-law claims whose outcomes

depend on analysis of a CBA’s terms. See Young v. Anthony’s Fish Grottos, Inc., 830

F.2d 993, 997–98 (9th Cir. 1987).

       However, Guevarra cannot sustain a claim under the LMRA because she was

party to a collective bargaining agreement with Seton that contained mandatory

grievance and arbitration procedures, which she failed to exhaust. Guevarra, in

essence, pleads wrongful termination without just cause. Such an allegation falls

squarely within the terms of her CBA. According to the CBA, Seton maintains

authority to “discharge or assess disciplinary action [against an employee] for just

cause.” It further states that “a dispute . . . concerning . . . whether or not discipline,

including discharge, is for just cause . . . shall be handled in accordance with the

procedure [the CBA] set[s] forth.” It is not in dispute that Guevarra’s union did not

initiate grievance procedures, nor did she pursue action against her union for failing

to do so.2 This failure bars her from pursuing remedies in district court now, and

dismissal with prejudice was proper.




       2
          As the district court noted, leave to amend for Guevarra to plead that her
union breached its duty of fair representation would be fruitless because the six-month
statute of limitations for such a claim long ago expired. Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 986 (9th Cir. 2007).

                                            5
      Guevarra’s second claim against Seton, for a violation of free speech rights as

protected by the California Constitution, likewise succumbs to a fatal deficiency: such

a claim must arise from state action. Article I, section 2 states,“[e]very person may

freely speak, write and publish his or her sentiments on all subjects, being responsible

for the abuse of this right. A law may not restrain or abridge liberty of speech or

press.” Guevarra acknowledges that Seton is a private entity.

      Guevarra argues that there exists sufficient disagreement among California

authorities on whether Article I, section 2 mandates state action to merit certification

of the question to the California Supreme Court. We disagree. While this question

has not received a square answer, California courts have applied Article I, section 2’s

protection against private actors only in cases when a private actor owns property that

has been opened up to the public such that it becomes a quasi-public forum, and the

private actor thereby resembles a state actor. See, e.g., Ralphs Grocery Co. v. United

Food & Commercial Workers Union Local 8, 55 Cal. 4th 1083, 1093 (2012); Fashion

Valley Mall, LLC v. NLRB, 42 Cal. 4th 850, 856–57 (2007). Certification is also

inappropriate because it is unlikely that the California Supreme Court’s answer would

be outcome determinative. See Cal. Rule of Court 8.548 (certification is appropriate

where there is no controlling precedent, and the decision could determine the outcome

of a matter pending in the requesting court).


                                           6
      We do not see a way Guevarra could amend her allegations into viable claims,

nor does she suggest one. We therefore affirm the district court’s dismissal with

prejudice and deny Guevarra’s motion for certification.

      AFFIRMED.




                                         7
