                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 02 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


AVINASH B. KULKARNI,                             No. 15-55377

              Plaintiff-Appellant,               D.C. No.
                                                 3:13-cv-02857-JLS-KSC
 v.

MEERA UPASANI; MOHAN UPASANI;                    MEMORANDUM*
SUNILA KULKARNI; MADHAVI
NERURKAR; CRAIG MCKENZIE
NICHOLAS; TRACY JUNE JONES;
NICHOLAS AND BUTLER LLP; LISA
NICHOLAS NEAL; CHELSEA A. EPPS;
RUTAN AND TUCKER LLP;
NIRANJAN FRED THIAGARAJAH;
KIRAN NAIR; LAW OFFICES OF FRED
THIAGARAJAH; UNITED STATES
DEPARTMENT OF STATE; ORANGE
COUNTY SOCIAL SERVICES
AGENCY; DOES, 1-20, inclusive,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                            Submitted August 31, 2016**
                              San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

      Avinash Kulkarni appeals the dismissal with prejudice of his first amended

complaint against eighteen state, federal, and individual defendants. Kulkarni pled

more than thirty federal and state causes of action related to an alleged conspiracy

between the government and individual defendants to deprive him of access to his

son, and their subsequent participation in California civil and criminal cases

stemming from his son’s abduction.

      The district court concluded that it lacked subject matter jurisdiction over

Kulkarni’s claims against the United States Department of State (“USDOS”), that

Kulkarni had failed to state a claim upon which relief could be granted under

Federal Rule of Civil Procedure 12(b)(6) against Orange County Social Services

Agency (“OCSSA”), that the state tort claims against the individual defendants

should be struck under the California anti-SLAPP statute, and that the federal

claims should be dismissed for failure to state a claim and under the Noerr-

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




         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                          2
      Kulkarni framed the claim against USDOS as a Bivens action. Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

However, federal agencies like USDOS are not proper defendants under Bivens.

See F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) (“An extension of Bivens to

agencies of the Federal Government is not supported by the logic of Bivens

itself.”). Because the USDOS is not a proper defendant, the district court correctly

dismissed the Bivens claim.

      Kulkarni failed to adequately plead that OCSSA had a “policy or custom”

that caused a deprivation of his rights. Monell v. Dep’t of Soc. Sec. Servs. of N.Y.,

436 U.S. 658, 694 (1978). “[T]he absence of a section 1983 deprivation of rights

precludes a section 1985 conspiracy claim predicated on the same allegations.”

Caldeira v. Cty. of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989). Because there is

no underlying § 1983 deprivation and because Kulkarni has not presented plausible

allegations that OCSSA participated in a conspiracy to violate his constitutional

rights, or failed to prevent such a deprivation, as required under §§ 1985 and 1986,

these claims were properly dismissed.

      Kulkarni’s state tort claims against OCSSA are barred because he failed to

comply with California law governing claims against government entities, which

require written notice within six months of accrual of the cause of action. See Cal.


                                           3
Gov. Code §§ 911.2, 945.4. Because “failure to allege facts demonstrating or

excusing compliance with the claim presentation requirement subjects a claim

against a public entity to a demurrer for failure to state a cause of action,” and

Kulkarni has not presented any evidence of compliance, the district court properly

dismissed the state law claims against OCSSA. California v. Superior Court

(Bodde), 90 P.3d 116, 119 (Cal. 2004).

      Against the individual defendants, Kulkarni claimed the follow state torts:

fraud, obstruction of justice, defamation, improper clouding of title, conspiracy,

negligence per se, intentional infliction of emotional distress, negligent infliction

of emotional distress, and tortious interference with parental rights. The individual

defendants moved to strike Kulkarni’s state law claims under the California anti-

SLAPP statute, which protects “any written or oral statement or writing made

before a . . . judicial proceeding, . . . [and] any written or oral statement or writing

made in connection with an issue under consideration or review by a . . . judicial

body.” Cal. Civ. Proc. Code § 425.16(e). Likewise, “all communicative acts

performed by attorneys as part of their representation of a client in a judicial

proceeding or other petitioning context are per se protected as petitioning activity

by the anti-SLAPP statute.” Cabral v. Martins, 99 Cal. Rptr. 3d 394, 401–02 (Cal.

Ct. App. 2009).


                                            4
      Because the defendants’ statements and filings made before the state court

are protected under the anti-SLAPP statute, Kulkarni bears the burden of showing

a reasonable probability of prevailing on his claims. See Navellier v. Sletten, 52

P.3d 703, 708 (Cal. 2002). California litigation privilege and attorney-client

privilege immunize the defendants from Kulkarni’s state tort claims. See Action

Apartment Ass’n, Inc. v. City of Santa Monica, 163 P.3d 89, 95 (Cal. 2007)

(litigation privilege “immunize[s] defendants from tort liability based on theories

of abuse of process, intentional infliction of emotional distress, . . . negligent

misrepresentation, invasion of privacy, negligence and fraud.”) (citation omitted);

Gen. Dynamics Corp. v. Superior Court, 876 P.2d 487, 490 (Cal. 1994) (“[When a]

claim is incapable of complete resolution without breaching the attorney-client

privilege, the suit may not proceed.”). Because the defendants’ actions are

protected by these privileges, Kulkarni cannot show a reasonable probability of

prevailing on his claims. The district court properly granted the motion to strike.

      Kulkarni’s federal claims against the individual defendants rely on a theory

of state/federal/private conspiracy or joint action under §§ 1983, 1985, 1986, and

Bivens. Kulkarni has not plausibly alleged a conspiracy or joint action between the

private defendants and the state or federal entities. See Caldeira, 866 F.2d at 1181

(“[T]o prove a section 1985 conspiracy between a private party and the


                                            5
government under section 1983, the plaintiff must show an agreement or ‘meeting

of the minds’ by the defendants to violate his constitutional rights.”);

Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1338 (9th Cir. 1987) (To

implicate private individuals in Bivens actions, the complaint must allege that

“private party defendants jointly participate with the government to a sufficient

extent to be characterized as federal actors.”) (quoting Reuber v. United States, 750

F.2d 1039, 1058 (D.C. Cir. 1984)). Kulkarni has failed to make the necessary link

between the individuals and the government, without which a purely private

individual cannot be held liable for violating his constitutional rights under § 1983

or Bivens.

      The federal claims are also barred under the Noerr-Pennington doctrine. See

Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643–44 (9th Cir. 2009) (applying

the Noerr–Pennington doctrine, which “derives from the Petition Clause of the

First Amendment and provides that those who petition any department of the

government for redress are generally immune from statutory liability for their

petitioning conduct” including “access to courts”) (citations and internal quotation

marks omitted). For these reasons, the district court correctly dismissed the federal

claims.




                                           6
      Kulkarni also challenges the denial of expedited discovery prior to the

district court’s ruling on the motions to dismiss and motion to strike. We review

discovery decisions for abuse of discretion. See Quinn v. Anvil Corp., 620 F.3d

1005, 1015 (9th Cir. 2010). It was not an abuse of discretion for the Magistrate

Judge to determine that expedited discovery would be overly burdensome and that

Kulkarni had not established good cause for why discovery must occur before

disposition of the motions to dismiss and strike.

      The district court denied leave to amend, finding that amendment would be

futile. “A district court does not err in denying leave to amend where the

amendment would be futile.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,

658 (9th Cir. 1992). We review the district court’s decision for abuse of discretion,

Ebner v. Fresh, Inc., 818 F.3d 799, 803 (9th Cir. 2016), and—given the numerous

grounds on which Kulkarni’s claims could be dismissed and his failure to state

specific amendments that would cure any deficiencies—we affirm.

      We deny Kulkarni’s motion for judicial notice as moot.

      AFFIRMED.




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