                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 26 2015

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

LORRAINE FERGUSON,                               No. 12-17748

              Plaintiff - Appellant,             D.C. No. 3:11-cv-03391-MEJ

  v.
                                                 MEMORANDUM*
HORIZON LINES, LLC,

              Defendant - Appellee,

  And

ANDREI A. TRETYAK,

              Defendant.


                   Appeal from the United States District Court
                      for the Northern District of California
                  Maria-Elena James, Magistrate Judge, Presiding

                     Argued and Submitted February 12, 2015
                            San Francisco California

Before:       TASHIMA, McKEOWN, and CLIFTON, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff Lorraine Ferguson appeals the district court’s grant of summary

judgment in favor of defendant Horizon Lines, Inc. (“Horizon”). Ferguson alleges

that she was assaulted and sexually harassed by Andrei Tretyak, a seaman

employed by Horizon. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      “We review a district court’s grant of summary judgment de novo, and may

affirm on any basis supported by the record.” Gordon v. Virtumundo, Inc., 575

F.3d 1040, 1047 (9th Cir. 2009). “We determine, viewing the evidence in the light

most favorable to the nonmoving party, whether the district court correctly applied

the relevant substantive law and whether there are any genuine issues of material

fact.” Nat’l Ass’n for the Advancement of Multijurisdiction Practice v. Berch, 773

F.3d 1037, 1044 (9th Cir. 2014).

      1.     California law, rather than general maritime law, governs this case. A

case is governed by maritime law if it falls within our maritime jurisdiction.

Victory Carriers, Inc. v. Law, 404 U.S. 202, 204 (1971). In tort cases such as this,

we use a two-part test to determine whether maritime law applies. “First, the tort

must occur on or over navigable waters,” Taghadomi v. United States, 401 F.3d

1080, 1084 (9th Cir. 2005), or be “caused by a vessel on navigable waters,”

Gruver v. Lesman Fisheries Inc., 489 F.3d 978, 982 (9th Cir. 2007) (quoting


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Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531

(1995)). “Second, the actions giving rise to the tort claim must ‘bear a significant

relationship to traditional maritime activity.’” Taghadomi, 401 F.3d at 1084

(quoting Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268

(1972)).

      We have held that a tort’s location is determined by where the injury occurs.

Solano v. Beilby, 761 F.2d 1369, 1371 (9th Cir. 1985). Here, Ferguson claims that

Tretyak assaulted her at an entry gate facility at the Port of Oakland. Thus, the

assault took place entirely on land and is not within our maritime jurisdiction. See

Victory Carriers, Inc., 404 U.S. at 206-07 (“Piers and docks [are] consistently

deemed extensions of land; injuries inflicted to or on them [are] held not

compensable under the maritime law.”). Instead, because all the events giving rise

to Ferguson’s claim took place on land, the first prong of our test is not met. This

case therefore falls within the district court’s diversity jurisdiction, and California

law governs. See 28 U.S.C. § 1652; Feldman v. Allstate Ins. Co., 322 F.3d 660,

666 (9th Cir. 2003).

      2.     The district court correctly granted summary judgment for Horizon on

Ferguson’s intentional tort claims. Because those claims rest on a theory of

vicarious liability through respondeat superior, Ferguson was required to present


                                           3
evidence sufficient to prove that Tretyak was acting “within the scope of [his]

employment” when he assaulted her. Lisa M. v. Henry Mayo Newhall Mem’l

Hosp., 907 P.2d 358, 360 (Cal. 1995). Under California law, an intentional tort is

within the scope of employment if it had a “causal nexus to the employee’s work,”

id. at 361, or was “an immediate outgrowth thereof.” Carr v. Wm. C. Crowell Co.,

171 P.2d 5, 8 (Cal. 1946) (in Bank). “[A] sexual tort will not be considered

engendered by the employment unless its motivating emotions were fairly

attributable to work-related events or conditions.” Lisa M., 907 P.2d at 364.

Because Tretyak’s actions were “the result of only propinquity and lust,” id.

(quoting Lyon v. Carey, 533 F.2d 649, 655 (D.C. Cir. 1976)), rather than his work

as a sailor, the torts at issue were plainly not within the scope of his employment.

      3.     Ferguson’s argument that the district court erred in granting judgment

on her negligent hiring claim is waived because she failed to present an argument

regarding negligent hiring in her opening brief. See Avila v. L.A. Police Dep’t, 758

F.3d 1096, 1101 (9th Cir. 2014).

      4.     Ferguson did not adduce any evidence to support a negligent

supervision claim. Even assuming that claim was properly pleaded in her

complaint, Ferguson was required to produce evidence from which a jury could

find that Horizon knew or should have known that Tretyak posed a danger to


                                          4
others. See Juarez v. Boy Scouts of Am., Inc., 97 Cal. Rptr. 2d 12, 25 (Ct. App.

2000) (“[T]here can be no liability for negligent supervision ‘in the absence of

knowledge by the principal that the agent or servant was a person who could not be

trusted to act properly without being supervised.’” (quoting Noble v. Sears,

Roebuck & Co., 109 Cal.Rptr. 269, 275 (Ct. App. 1973))). Ferguson produced no

such evidence; thus, she failed to adduce prima facie evidence of an essential

element of her negligent supervision claim. Accordingly, Horizon is entitled to

summary judgment on this claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).

      5.     Ferguson’s remaining claims fail because they were not sufficiently

pleaded in her complaint. A district court need not address allegations raised for

the first time in response to a motion for summary judgment if the plaintiff’s

“pleadings did not provide sufficient notice of those allegations.” Pickern v. Pier 1

Imports (U.S.), Inc., 457 F.3d 963, 965 (9th Cir. 2006). Nothing in Ferguson’s

complaint provided notice that she intended to advance theories of liability based

on failure to enforce a company alcohol policy, violations of Coast Guard

regulations, or a heightened duty to protect security guards. The district court

correctly declined to address these untimely claims.

                                       • ! •


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The judgment of the district court is

AFFIRMED.




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