                                                                           FILED
                                                                            JUL 7 2017
                           NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

RAMON EUGENIO SANCHEZ                            No. 15-56512
RITCHIE,
                                                 D.C. No. 3:10-cv-01513-CAB-
              Plaintiff - Appellant,             KSC

 v.                                              MEMORANDUM*

SEMPRA ENERGY,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                       Argued and Submitted March 7, 2017
                               Pasadena, California

Before: PAEZ, BERZON, and CHRISTEN, Circuit Judges.

      Ramon Eugenio Sanchez Ritchie appeals the district court’s grant of

summary judgment to defendant Sempra Energy (“Sempra”) on Claim 7 of his

Second Amended Complaint (“SAC”), alleging malicious prosecution. Sanchez


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Ritchie also appeals the district court’s dismissal of Claims 1–6 and 8 of his SAC

alleging state law claims for trespass, conversion, intentional interference with

prospective economic advantage, unjust enrichment, imposition of a constructive

trust, abuse of process, and unfair business practices in violation of California

Business & Professions Code § 17200 et seq. We affirm in part and reverse in

part.

1.      The district court erred in prematurely granting summary judgment to

Sempra based on its sua sponte observation that Sanchez Ritchie had failed to

allege that Sempra was responsible for the acts of its subsidiary Energia Costa

Azul (“ECA”). Sanchez Ritchie did not prove, or even allege, that ECA was the

alter ego of Sempra, beyond a bare allegation in the SAC that Sempra “controlled”

ECA. But Sempra did not raise the alter ego issue in its motion for summary

judgment or its motion to dismiss; it only argued broadly that Sempra was “Not

Liable for Malicious Prosecution,” a generic statement insufficient to raise the

discrete alter ego issue.

        Federal Rule of Civil Procedure 56(f) requires the court to give the parties

“notice and a reasonable time to respond” if the court intends to grant summary

judgment on grounds not raised by any party. The district court did not do that. It

first raised the issue in its “tentative ruling” issued on September 1, 2015. That

                                           2
was just two days before the scheduled hearing on Sempra’s motion for summary

judgment and three days before the district court issued its order granting summary

judgment. That abbreviated time period was not sufficient to allow Sanchez

Ritchie to address the complex factual and legal issue of whether ECA was the

corporate alter ego of Sempra. Sanchez Ritchie’s attorney stated at the summary

judgment hearing that “I think that Rule 56 would require us to be allowed to meet

[the corporate identity] question since it wasn’t presented by Sempra in its motion,

and accordingly, we would have sufficient time in which to respond.” He also

asked for a continuance to pursue evidence that Sempra controlled ECA “on a day-

to-day basis.” The district court erred in granting summary judgment to Sempra on

the corporate identity theory without granting Sanchez Ritchie’s requests for

additional time to rebut it.1

2.     We conclude, however, that the district court’s procedural error on the alter

ego issue was harmless, because the court correctly held in the alternative that no

genuine issue of material fact existed regarding the merits of Sanchez Ritchie’s

malicious prosecution claim.

       To prevail in a malicious prosecution action, a plaintiff must prove that: (1)

       1
         To be clear, we express no opinion on whether Sempra is, in fact, liable for
the alleged tortious acts of its subsidiary. We hold only that Sanchez Ritchie was
entitled to a sufficient opportunity to prove that Sempra is so liable.

                                           3
the defendant commenced a prior action, or directed its commencement, and

pursued the action to a termination favorable to the plaintiff; (2) the defendant

lacked probable cause to pursue the action; and (3) the defendant initiated the

action with malice. Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 292

(2006) (citing Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 871 (1989)).

Sanchez Ritchie does not contest that a February 2007 order from the Second

Criminal Court in Ensenada, Mexico, finding probable cause that Sanchez Ritchie

had committed the crime of dispossession of real property (“despojo”), would

ordinarily immunize Sempra from a malicious prosecution claim. He nevertheless

proposes that the February 2007 order and earlier interim orders were obtained by

“fraud or perjury,” and therefore do not signify probable cause. See Wilson v.

Parker, Covert & Chidester, 28 Cal. 4th 811, 817 (2002).

      In support of his fraud arguments, Sanchez Ritchie argues first that Sempra

was aware as early as 2001 that he, as opposed to the sellers from whom Sempra

purchased the property, was the rightful possessor of the property. For that

proposition, Sanchez Ritchie relies on the factual findings from the March 10,

2010 Resolution of the Tenth District Court of Baja California. This argument

fails. The findings suggest at most that Sempra knew there were two factions —

one led by the sellers, Luis Armando Navarro Peña and Elodia Gomez Castañon,

                                           4
and the other led by Sanchez Ritchie himself — each claiming ownership and

possession of the property. “A litigant or attorney who possesses competent

evidence to substantiate a legally cognizable claim for relief does not act tortiously

by bringing the claim, even if also aware of evidence that will weigh against the

claim.” Wilson, 28 Cal. 4th at 822.

      Sanchez Ritchie next proposes that Sempra was aware of Gomez Castañon’s

death at the time ECA pursued criminal charges against Sanchez Ritchie in 2006,

and therefore was also aware that ECA’s purchase of Fraccion A was bogus.

Sanchez Ritchie offers no admissible support for this allegation. The declaration

from Sanchez Ritchie’s expert witness states only that ECA should have been

aware of Gomez Castañon’s untimely death, had the company done due diligence.

If credited, that declaration proves at most that ECA was negligent in its title

search, not that ECA actually discovered Gomez Castañon’s death before filing its

criminal complaint.2

      Finally, Sanchez Ritchie proposes that Sempra knew that Navarro Peña and

Gomez Castañon had unsuccessfully filed for a court order in 1999 seeking a

      2
       Moreover, ECA purchased Fraccion B from Navarro Peña, not from
Gomez Castañon. ECA therefore had an independent basis for pursuing despojo
charges for trespasses occurring on Fraccion B, even if it had reason to know it did
not have good title to Fraccion A.


                                           5
declaration that they were the rightful possessors of Lot A-3, and that Sempra

withheld such information from the attorney general’s office. But Sanchez

Ritchie’s sole evidence that Sempra withheld knowledge of that unsuccessful

application is that a document referencing the application was in Sempra’s

“business files” as of 2014, when it was produced in this litigation. Sanchez

Ritchie provides no evidence that Sempra knew of the order in 2006, when the

criminal complaint was filed.

      In sum, the evidence presented by Sanchez Ritchie is insufficient to create a

genuine issue of material fact as to whether the interim orders issued in ECA’s

favor by the Mexican courts were obtained by fraud or perjury. We therefore

affirm the district court’s grant of summary judgment on Claim 7 of the SAC.

3.    The district court did not err in dismissing Claims 1, 3, 4, 5, and 6 of the

SAC based on the local action doctrine. Nor did the district court err in dismissing

Claim 8 based on the litigation privilege conferred by California Civil Code §

47(b). The district court erred, however, in dismissing Claim 2 of the SAC,

alleging conversion of Sanchez Ritchie’s personal property.

      The local action doctrine “vests exclusive jurisdiction over specified types of

actions involving real property in the forum where that property is located.” Eldee-

K Rental Props., LLC v. DIRECTV, Inc., 748 F.3d 943, 946 (9th Cir. 2014).

                                          6
“Under California law, there are three broad categories of local actions: (1) actions

to recover or determine rights or interests in real property; (2) actions to remedy

injuries to real property; and (3) actions to foreclose on liens and mortgages on real

property.” Id. at 950; see also Cal. Civ. Proc. Code § 392. With the exception of

Claim 2, all of Sanchez Ritchie’s first through sixth claims rest on his claim to

ownership or possession of real property in Baja California and on Sempra’s

allegedly unlawful possession of that property.

      Moreover, the bulk of Sanchez Ritchie’s claims (including Claim 8, for

abuse of process) are also barred by California Civil Code § 47(b), which provides

that communications in any “(1) legislative proceeding, (2) judicial proceeding,

[or] (3) in any other official proceeding authorized by law” are privileged. That

privilege extends to post-judgment acts necessarily related to the enforcement of an

order procured by an allegedly wrongful communicative act. See Rusheen v.

Cohen, 37 Cal. 4th 1048, 1063 (2006). As most of the torts alleged by Sanchez

Ritchie arise out of ECA’s attempted post-judgment enforcement of a September

2006 preliminary order of eviction, they are barred by the litigation privilege.

      Claim 2, however, is not barred by either the local action doctrine or the

litigation privilege. Conversion of personal property, when stated as an

independent cause of action, is generally considered a transitory rather than local

                                           7
action. See Ellenwood v. Marietta Chair Co., 158 U.S. 105, 107–08 (1895); Bigio

v. Coca-Cola Co., 239 F.3d 440, 450 (2d Cir. 2000). And although ECA secured a

court order in September 2006 evicting Sanchez Ritchie from the property,

Sanchez Ritchie alleged in the SAC that the order did not authorize the taking of

his personal property. We conclude that the district court erred in dismissing

Sanchez Ritchie’s claim for conversion and therefore remand on this claim alone.3

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment to Sempra on Sanchez Ritchie’s malicious prosecution claim, affirm the

district court’s dismissal of Claims 1, 3–6, and 8 of the SAC, and reverse the

district court’s dismissal of Sanchez Ritchie’s claim for conversion.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED. Each

party shall bear its own costs on appeal.




      3
        Sempra requests that we affirm the district court’s dismissal of Claims 1–6
and 8 of the SAC on two alternative grounds, raising the Act of State Doctrine and
the Noerr-Pennington Doctrine as affirmative defenses. As the district court did
not rule on either of these defenses, we decline to reach them. Sempra may raise
either or both of these defenses on remand.

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