                                                                            FILED
                              NOT FOR PUBLICATION                            MAR 25 2011

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




                              FOR THE NINTH CIRCUIT



DAVID Q. WEBB,                                    No. 09-17512

                Plaintiff - Appellant,            D.C. No. 5:08-cv-04913-PVT

  v.
                                                  MEMORANDUM *
OLIVE GARDEN ITALIAN
RESTAURANTS/DARDEN
RESTAURANTS; et al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Northern District of California
                  Patricia V. Trumbull, Magistrate Judge, Presiding **

                              Submitted March 8, 2011 ***

Before:         FARRIS, LEAVY, and BYBEE, Circuit Judges.

       David Q. Webb appeals pro se from the district court’s judgment dismissing


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **   The parties consented to the jurisdiction of the magistrate judge. See
28 U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his diversity action arising from an incident in which Webb alleges he felt

threatened by Olive Garden Italian Restaurants’s employees. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo, Knievel v. ESPN, 393 F.3d 1068,

1072 (9th Cir. 2005), and we may affirm on any ground supported by the record,

Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

We affirm.

      The district court properly dismissed Webb’s assault claim because he failed

to allege that he had been placed in reasonable fear of imminent physical harm.

See Lowry v. Standard Oil Co. of Cal., 146 P.2d 57, 60 (Cal. Ct. App. 1944)

(assault requires an act demonstrating an intent to inflict immediate injury on a

person then present).

      The district court properly dismissed Webb’s false imprisonment claim

because he failed to allege that he was deprived of his liberty or compelled to

remain at the restaurant parking lot. See Collins v. Cnty. of L.A., 50 Cal. Rptr. 586,

591 (Ct. App. 1966) (false imprisonment “requires some restraint of the person and

that he be deprived of his liberty or compelled to remain where he does not wish to

remain, or go where he does not wish to go”).

      Dismissal of Webb’s defamation claim was proper because the complained-

of statements are nonactionable opinions. See Nygard, Inc. v. Uusi-Kerttula, 72


                                           2                                      09-17512
Cal. Rptr. 3d 210, 229 (Ct. App. 2008) (defamation claim failed because it was

based on “nonactionable statements of opinion, rather than verifiable statements of

fact”).

          The district court properly dismissed Webb’s claim for intentional infliction

of emotional distress because he failed to allege “severe” emotional distress.

Girard v. Ball, 178 Cal. Rptr. 406, 414 (Ct. App. 1981) (defining the required

element of “severe” emotional distress and holding that general allegations that

plaintiff could not sleep, had anxiety, and did not seek medical treatment were

insufficient).

          The district court properly dismissed Webb’s claim for negligent supervision

because he failed to allege that the restaurant knew or should have known that its

employees presented an undue risk of harm to third persons. See Federico v.

Superior Court of Sacramento Cnty., 69 Cal. Rptr. 2d 370, 374 (Ct. App. 1997).

          Webb’s remaining contentions are unpersuasive.

          AFFIRMED.




                                             3                                   09-17512
