                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 18 2013

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




                            FOR THE NINTH CIRCUIT



JOSEPH W. CHAIT, individually and on             No. 11-17685
behalf of those similarly situated,
                                                 D.C. No. 3:10-cv-02194-WHA
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

CITY OF SAN FRANCISCO, a Muncipal
Corporation; GEORGE GASCON; R.
DELA VEGA, (Badge # 1823) in his
individual and official capacity as a Police
Officer of the San Francisco Police
Department; RONNIE WAGNER, in her
individual & official capacity as a Police
officer/ police Department of Attorney of
the San Francisco Police Department;
DANIEL YAWCZAK, (Badge # 1810) in
his individual & official capacity as a
Police Officer of the San Francisco Police
Department,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted June 13, 2013 **
                              San Francisco, California

Before: TASHIMA and BYBEE, Circuit Judges, and WOOD, Senior District
Judge.***

      Joseph Chait appeals the district court’s grant of summary judgment against

him. The facts are known to the parties. We have jurisdiction pursuant to 28

U.S.C. § 1291. “We review the district court’s grant of summary judgment de

novo,” Zeltser v. City of Oakland, 325 F.3d 1141, 1143 (9th Cir. 2003), and we

affirm.

      We have held that “California law provides two ways in which the police

can compel a pawnbroker to give them control over allegedly stolen property:

officers can place a hold on the property or they can seize the property pursuant to

a valid search warrant (or an applicable exception).” Id. Putting a “hold” on

allegedly stolen property is governed by California Business and Professions Code

§ 21647. Id. at 1143–44. We have held, however, that “the disposal of property

seized from pawnbrokers—rather than placed on hold—is governed by [California]

Financial Code § 21206.8,” and that the “statutory procedures [in that code section]


          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
             The Honorable Kimba M. Wood, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

                                          2
satisfy procedural due process.” Sanders v. City of San Diego, 93 F.3d 1423,

1429–30 (9th Cir. 1996); see also Zeltser, 325 F.3d at 1144.

      All of Chait’s claims rely for support on California Business and Professions

Code § 21647, and the premise that § 21647 governs the disposal of the watches

that had been seized.1 We disagree. The facts of this case are identical to the

situation presented in Zeltser where the allegedly stolen property was first placed

on “hold” by a police officer pending further investigation, and then was

subsequently seized as evidence. See Zeltser, 325 F.3d at 1143. There, we held

that California Financial Code § 21206.8 governed. Id. at 1145. Because our

precedent dictates that California Financial Code § 21206.8 governs situations such

as this where allegedly stolen goods are seized as evidence, see Zeltser, 325 F.3d at

1144–45; Sanders, 93 F.3d at 1429, Chait’s claims fail as a matter of law. Chait

relies on the improper statute and he has failed to raise a genuine issue of material

fact under the controlling statute.

      The only claim that might remain is whether the City violated California

Business and Professions Code § 21647 by placing a hold on the watches. This



      1
       Chait raises for the first time before us claims under the Fourth and Fifth
Amendments to the United States Constitution. These arguments are waived
because they were not raised below. In re Mercury Interactive Corp. Sec. Litig.,
618 F.3d 988, 992 (9th Cir. 2010).

                                           3
claim too, however, is without merit. California Business and Professions Code

§ 21647(a) states that if a “peace officer has probable cause to believe that property

. . . in the possession of a pawnbroker . . . is stolen, [then] the peace officer may

place a hold on the property for a period not to exceed 90 days.” The undisputed

facts show—and Chait admitted in his deposition 2—that the police properly placed

a hold on the watches pursuant to California Business and Professions Code

§ 21647(a) because the serial numbers on the watches were identical to those

alleged to have been stolen in a police report. The undisputed facts here were

sufficient to give the officer probable cause to believe that the watches were stolen

based on the serial number identification. Chait has failed to raise a genuine issue

of material fact in this regard.

      Even if Chait had properly raised a seizure claim under California Financial

Code § 21206.8, it would fail. As we stated in G & G Jewelry, Inc. v. City of

Oakland, there is no improper seizure when “the police were properly on the

premises and were authorized to inspect the pawnshop property pursuant to

[California Financial Code] § 21206,” and “[t]he inspection revealed the make,

model, and serial numbers of the property reported as stolen and, thus, the evidence



      2
        Chait’s contradictory statements do not create a genuine issue of material
fact. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806–07 (1999).

                                            4
that the property was stolen was in plain view.” 989 F.2d 1093, 1099, 1101 (9th

Cir. 1993). Therefore, even if Chait had properly raised a claim regarding an

alleged improper seizure, it would be foreclosed based on our precedent and the

undisputed facts in this case.

      AFFIRMED.




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