                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 03 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DENIZ BOLBOL and JOSEPH PATRICK                  No. 13-15484
CUVIELLO, I,
                                                 D.C. No. 5:11-cv-05539-PSG
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

FELD ENTERTAINMENT, INC., DBA
Ringling Bros and Barnum & Bailey
Circus; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Paul S. Grewal, Magistrate Judge, Presiding

                       Argued and Submitted May 15, 2015
                            San Francisco, California

Before: N.R. SMITH and OWENS, Circuit Judges and COLLINS,** Chief District

Judge.



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable Raner C. Collins, Chief District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
      Deniz Bolbol and Joseph Cuviello appeal the district court’s orders

dismissing their complaint and granting summary judgment to Defendants.

Plaintiffs contend that the district court erred by (1) finding that Plaintiffs were

collaterally estopped from bringing their claim that Defendants violated their

constitutional right to film over the wall of the backstage loading area of the HP

Pavilion; (2) finding that a claim for violation of free speech rights under Article I,

section 2(a) of the California Constitution requires proof that the defendant was a

state actor; and (3) dismissing Plaintiffs’ claim for vandalism. We affirm.

1.    The district court found that collateral estoppel warranted dismissing

Plaintiffs’ complaint based on a long running prior litigation between Plaintiffs, the

HP Pavilion’s management, and the City of San Jose, pertaining to Plaintiffs’ free

speech activity in the HP Pavilion’s parking lot. We review de novo the district

court’s order dismissing a complaint for failure to state a claim for which relief can

be granted. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995). Three

requirements must be met before collateral estoppel can apply: “(1) the issue

sought to be litigated is sufficiently similar to the issue present in an earlier

proceeding and sufficiently material in both actions to justify invoking the

doctrine; (2) the issue was actually litigated in the first case; and (3) the issue was

necessarily decided in the first case.” United States v. Weems, 49 F.3d 528, 532


                                            2
(9th Cir. 1995). “[W]here the court heard evidence and argument from both

parties, and specifically ruled on the issue, a party may not escape the ruling’s

binding effect on the ground that it was not logically essential to the court’s

ultimate determination.” United States v. Johnson, 256 F.3d 895, 915 (9th Cir.

2001).

      The district court properly applied collateral estoppel, because in the

previous case the district court held that Plaintiffs had no constitutional right to

videotape into the backstage loading area, even from the public sidewalk, and

enjoined Plaintiffs from doing so. Plaintiffs concede that the district court properly

found that the HP Pavilion’s backstage loading area was a non-public forum. The

previous litigation over the scope of the permanent injunction necessarily required

the district court to determine the balance of privacy rights that Plaintiffs now seek

to argue in the present case. Plaintiffs themselves asked the district court in that

case to amend the scope of the injunction to permit them to videotape into the

backstage loading area from the public sidewalk. The court declined, based on the

privacy interests of Feld’s employees. This finding is sufficient to prevent

relitigation of the identical issues in the present action.

2.    In its summary judgment order, the district court held that the protections of

Article I, section 2(a) of the California Constitution are only triggered by state


                                            3
action, based on Golden Gateway Center v. Golden Gateway Tenants Association,

29 P.3d 797 (Cal. 2001). We review de novo the district court’s order granting

summary judgment to Defendants. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th

Cir. 2001). While we agree with Plaintiffs that the lead opinion in Golden

Gateway was not controlling on this question,1 we are thus left without controlling

precedent from the California Supreme Court. In the absence of controlling

precedent from California’s highest court, we “follow decisions of the California

Court of Appeal unless there is convincing evidence that the California Supreme

Court would hold otherwise.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d

876, 889 (9th Cir. 2010). The California Court of Appeal has squarely held that

“[a] person’s free speech rights under the federal and state constitutions are not

infringed unless there is state action.” Yu v. Univ. of La Verne, 126 Cal. Rptr. 3d

763, 771 (Ct. App. 2011). We conclude that the California Supreme Court would

impose a state action requirement on Article I, section 2(a), along the lines

suggested in the Golden Gateway plurality opinion. Accordingly, Defendants are



      1
         We disagree with Plaintiffs that the California Supreme Court resolved the
state action question in Gerawan Farming, Inc. v. Lyons, 12 P.3d 720, 735 (Cal.
2000). A majority of the California Supreme Court held in Golden Gateway that
Gerawan Farming’s analysis of the question is not a binding statement of
California law. Golden Gateway, 29 P.3d at 807 (plurality opinion); id. at 819 &
n.2 (Werdegar, J., dissenting).
                                          4
entitled to summary judgment, because Plaintiffs have not produced evidence that

Defendants are owners of “private property . . . [that] is freely and openly

accessible to the public.” Golden Gateway, 29 P.3d at 810 (plurality opinion).

3.    Lastly, Plaintiffs contend that the district court erred when it dismissed a

claim for “vandalism” in Plaintiffs’ First Amended Complaint, holding that no

such tort existed under California law. The district court dismissed the claim with

leave to amend, and Plaintiffs did not reallege the claim for “vandalism” in any

amended complaint. Because Plaintiffs did not voluntarily reallege the

“vandalism” claim, they have waived review of the district court’s order dismissing

the claim. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012); Chubb

Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 973 n.14 (9th Cir. 2013).

The district court’s denial of leave to amend the Second Amended Complaint to

add a claim for trespass to chattels was not appealed and is not before us.

      AFFIRMED.




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