                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 27 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JERRY KHAI,                                     No.    16-56574

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-03124-PA-JC
 v.

COUNTY OF LOS ANGELES; et al.,                  MEMORANDUM*

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                       Argued and Submitted March 9, 2018
                              Pasadena, California

Before: TASHIMA and NGUYEN, Circuit Judges, and SIMON,** District Judge.

      Jerry Khai appeals the dismissal of his complaint against the County of Los

Angeles (“the County”) and various individuals employed by its Department of

Children and Family Services (“DCFS”) (collectively, “the social workers”) for

conduct surrounding an allegation of abuse made against him that was ultimately


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
ruled unsubstantiated. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm in part, vacate in part, and remand.

      1.     The district court properly dismissed Khai’s state claims on anti-

SLAPP grounds. If state claims arise from activity protected by California Civil

Procedure Code § 425.16 (the anti-SLAPP statute), the plaintiff must establish a

“reasonable probability” that he will prevail on the claim. U.S. ex rel. Newsham v.

Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999) (quoting Wilcox

v. Superior Court, 33 Cal. Rptr. 2d 446, 453 (Ct. App. 1994)); see also Cal. Civ.

Proc. Code § 425.16(b)(1). Reviewing de novo, Graham-Sult v. Clainos, 756 F.3d

724, 735 (9th Cir. 2014), we conclude that Khai has not met that showing here.

      Khai’s state claims rest entirely on alleged statements made by the social

workers in connection with DCFS’s investigation. These statements were made

“in connection with an issue under consideration or review by a . . . judicial body,

or [] other official proceeding authorized by law” and are thus protected activity.

See Cal. Civ. Proc. Code § 425.16(e)(2); Cal. Penal Code § 11169(a), (d); Cal.

Welf. & Inst. Code § 16501.5; Dwight R. v. Christy B., 151 Cal. Rptr. 3d 406, 415

(Ct. App. 2013) (“[The] claims are based on acts preparatory to or in anticipation

of official proceedings, namely, an investigation by child protective services.”).

      Khai cannot show a reasonable probability of success on these protected-

activity claims. The social workers are immune from liability for their alleged


                                          2
conduct pursuant to California Government Code §§ 820.2 and 821.6. See

Jacqueline T. v. Alameda Cty. Child Protective Servs., 66 Cal. Rptr. 3d 157, 165

(Ct. App. 2007) (“Several [California] appellate courts . . . have held that a social

worker’s decisions relating to . . . the investigation of child abuse, removal of a

minor, and instigation of dependency proceedings, are discretionary decisions

subject to immunity under section 820.2, and/or prosecutorial or quasi-

prosecutorial decisions subject to immunity under section 821.6.”) (collecting

cases). Similarly, the County is immune from liability for its conduct “relating to

its investigation of reported child abuse” here. See id. at 166; see also Cal. Gov.

Code § 815.2(b).1

      We therefore affirm the dismissal of all of Khai’s state law claims.

      2.     The district court did not abuse its discretion in denying Khai’s

request for discovery prior to granting the anti-SLAPP motion. While Federal

Rule of Civil Procedure 56 does not strictly govern here because an anti-SLAPP

motion is not technically a summary judgment motion, the procedure is sufficiently

similar that Rule 56’s requirements should govern the discovery sought here. See

Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (applying Rule



      1
        Khai’s argument that California Penal Code § 1169(j) trumps these
immunity provisions is misplaced, as it specifically states, “nothing in this section
shall be construed to alter or diminish any other immunity provisions of state or
federal law.”

                                           3
56 to the question of whether a plaintiff was entitled to discovery for an anti-

SLAPP motion). Khai did not provide an affidavit or declaration outlining why he

needed additional discovery. See Fed. R. Civ. P. 56(d). Nor has Khai proffered

any facts that he hopes to discover that could defeat the immunity to which the

defendants are entitled on the state claims. See Family Home & Fin. Ctr., Inc. v.

Fed Home Loan Mortg. Corp., 525 F.3d 822, 825, 827 (9th Cir. 2008).

      3.     The district court did not abuse its discretion in awarding anti-SLAPP

attorney’s fees. See Manufactured Home Cmtys., Inc. v. Cty. of San Diego, 655

F.3d 1171, 1176 (9th Cir. 2011). Attorney’s fees are mandatory for a successful

anti-SLAPP motion. See Cal. Civ. Proc. Code § 425.16(c)(1); Ketchum v. Moses,

17 P.3d 735, 741 (Cal. 2001).2 The district court made specific findings that the

number of hours and hourly rates for preparation of the anti-SLAPP motion and

motion for fees were reasonable for the applicable market. Those findings were

not clearly erroneous, and the amount of attorney’s fees awarded was reasonable.

See Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001); Chacon v. Litke, 105

Cal. Rptr. 3d 214, 233 (Ct. App. 2010).

      4.     The district court correctly ruled that the social workers are entitled to

qualified immunity for Khai’s due process claim. Khai fails to cite any precedent


      2
        Khai did not ask the court to consider his ability to pay, nor is it clear that
the court would be permitted to do so where, as here, the grant of fees was
mandatory.

                                           4
that could have put the social workers on notice that their reporting of Khai in the

California Child Welfare Services Case Management System (“CWS/CMS”), or

their alleged failure to update that information, would constitute a due process

violation. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (“A Government

official’s conduct violates clearly stablished law when, at the time of the

challenged conduct, the contours of a right are sufficiently clear that every

reasonable official would have understood that what he is doing violates that

right.” (internal quotation marks and alterations omitted)). In fact, the opposite is

true; the social workers were following state law that mandated the reporting at

issue. Cf. Humphries v. County of Los Angeles, 554 F.3d 1170, 1202 (9th Cir.

2009), rev’d in part on other grounds sub nom. Los Angeles County v. Humphries,

562 U.S. 29 (2010) (“‘[A]n officer who acts in reliance on a duly-enacted statute . .

. is ordinarily entitled to qualified immunity’ which is lost only if it is ‘so

obviously unconstitutional as to require a reasonable officer to refuse to enforce

it.’” (quoting Grossman v. City of Portland, 33 F.3d 1200, 1209–10 (9th

Cir.1994))). Because the social workers are entitled to qualified immunity, the due

process claim against them was properly dismissed.

      5.     Khai has not adequately pled a violation of his due process rights

against the County either. Khai argues that his reputational interest has been

violated by his inclusion in CWS/CMS. Even if Khai has alleged stigma from the


                                            5
information in CWS/CMS—i.e., that the abuse complaint against him is still listed

as “substantiated,” so anyone who views the information will believe him to be a

child abuser—he has not alleged the requisite “plus.” See Humphries, 554 F.3d at

1185–92; see also Paul v. Davis, 424 U.S. 693, 711 (1976).

      Khai alleges in his complaint that the information in CWS/CMS is

“accessible to members of all 58 counties in the State of California, law

enforcement, and court personnel involved in identifying persons for child abuse

history.” This allegation does not come close to the level of access we found to

satisfy the “plus” in Humphries. See 554 F.3d at 1175–76 (“California makes the

CACI3 database available to a broad array of government agencies, employers,

and law enforcement entities and even requires some public and private groups to

consult the database before making hiring, licensing, and custody decisions.”)

(emphasis added); id. at 1177 (listing numerous examples of same); see also id. at

1178, 1188, 1190–91 (noting that California “explicitly requires agencies to

consult the CACI . . . before granting a number of licenses and benefits”). In

contrast to CACI, Khai’s allegations suggest that access to information in

CWS/CMS is limited to investigatory purposes and otherwise is not widely

disclosed. Without alleging that “the law creates a framework under which

agencies reflexively check the stigmatizing listing—whether by internal regulation


      3
          “CACI” refers to the California Child Abuse Central Index.

                                          6
or custom—prior to conferring a legal right or benefit,” Khai has not pled a valid

reputational interest for his due process claim and the claim was properly

dismissed. See id. at 1188.

      On appeal, in briefing and during oral argument, Khai’s counsel suggested

that numerous entities, separate and apart from DCFS in its investigatory role, have

access to and use the information in CWS/CMS, but this representation was

vigorously disputed by the County. On this record, it is unclear if amendment

would be futile as to Khai’s due process claim against the County. If, for example,

Khai could allege access to satisfy the “plus” required by Paul, as we analyzed it in

this context in Humphries, the court would then balance Khai’s reputational

interest against California’s interests to determine whether existing procedures are

adequate. See Humphries, 554 F.3d at 1185; see also Mathews v. Eldridge, 434

U.S. 319, 335 (1976). As we explained in Humphries, for investigatory purposes,

California also has a significant interest in maintaining all reports of abuse

(substantiated or not) because, “when coupled with other information, [they] can

reveal patterns that might not otherwise be detected” and can aid “investigators

who work off of hunches, disparate patterns, and minute clues” “to collect bits and

pieces of information to establish a history or pattern” for future complaints. Id. at

1194–95, 1201; see also id. at 1201 (“The mere maintenance of such investigatory

files apart from the CACI does not raise concerns under the Due Process Clause.”).


                                           7
But wide dissemination of information in CWS/CMS, beyond the state’s

investigatory or protection purposes, may give rise to due process concerns

discussed in Humphries.4 Thus, based on Khai’s counsel’s representations, we

cannot say that any amendment would be futile. See Fed. R. Civ. P. 15(a)(2)

(stating that leave to amend should be “freely” granted).

      Each party should bear their own costs on appeal.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




      4
          There are undisputedly procedures in place to challenge the facts
underlying a substantiated allegation of abuse, see Cal. Penal Code § 11169(d), but
it is not clear whether there are procedures in place for Khai to ensure that the
information in CWS/CMS is updated to reflect the outcome of such proceedings.

                                         8
