                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 24 2014

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



                            FOR THE NINTH CIRCUIT


NATHALIE THUY VAN,                               No. 11-17040

              Plaintiff - Appellant,             D.C. No. 5:08-cv-05296-PSG

  v.
                                                 MEMORANDUM*
WAL-MART STORES, INC.; et al.,

              Defendants - Appellees.



NATHALIE THUY VAN,                               No. 12-15284

              Plaintiff - Appellant,             D.C. No. 5:08-cv-05296-PSG

  v.

WAL-MART STORES, INC.; 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 July 9, 2014
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

      Nathalie Thuy Van brought suit against Wal-Mart Stores, Inc. alleging civil

rights violations, defamation, false imprisonment, and various other tort law

claims. After her attorney withdrew from the case, Van filed a second amended

complaint pro se. The magistrate judge dismissed Van’s civil rights claims for

failure to state a claim, granted Wal-Mart’s motion for summary judgment as to the

defamation and false imprisonment claims, and awarded costs to Wal-Mart. We

have jurisdiction pursuant to 28 U.S.C. § 1291; we affirm in part, reverse in part,

and remand.

1.    We review de novo a dismissal for failure to state a claim. Wilson v.

Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). “[A]ll material facts

are accepted as true and are construed in the light most favorable to the plaintiff.”

Id. A pro se plaintiff’s “complaint should be liberally construed, and should not be

dismissed unless it appears certain that the plaintiff can prove no set of facts which

would entitle him or her to relief.” Haddock v. Bd. of Dental Exam’rs of Cal., 777

F.2d 462, 464 (9th Cir. 1985). The “complaint should not be dismissed if it states

a claim under any legal theory, even if the plaintiff erroneously relies on a different

legal theory.” Id.




                                          2
      Construed liberally, Van’s complaint states a claim for relief under 42

U.S.C. § 1981; California’s Unruh Act, Cal. Civ. Code § 51; California’s Bane

Act, Cal. Civ. Code § 52.1; and California’s Ralph Act, Cal. Civ. Code § 51.7. She

essentially alleges that Wal-Mart’s security guards targeted and detained her and

her son on the basis of race and, as part of their race-based investigation, (1)

refused to allow her to purchase the Lego toy, (2) barred Van from shopping at any

Wal-Mart in the future, (3) and used threats of violence to accomplish their

purposes. “Although we intimate no view whatever on the merits of [Van’s]

allegations, we conclude that [she] is entitled to an opportunity to offer proof.” See

Haddock, 777 F.2d at 465.

2.    Van did not sufficiently allege facts showing that Wal-Mart acted under

color of state law, which means Van failed to state a claim under 42 U.S.C. § 1983.

See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007).

However, the magistrate judge erred by failing to grant Van leave to amend her

complaint, because it is not “absolutely clear” that Van’s complaint could not be

cured by amendment. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

      In addition, the magistrate judge erred by not addressing—in any of his

orders—Van’s claims for intentional infliction of emotional distress; negligence;

negligent selection, training, retention, supervision, investigation, discipline;


                                           3
negligent infliction of emotional distress; fraud; and negligent misrepresentation.

Upon remand, the magistrate judge must provide Van with notice of any

deficiencies in her complaint and then grant Van leave to amend. See Ferdik v.

Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

3.    “We also review de novo the merits of a grant of summary judgment.”

Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013). “[W]e are required to

view all evidence and draw all inferences in the light most favorable to the

nonmoving party.” Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1090 (9th Cir.

2013) (internal quotation marks omitted).

      The magistrate judge did not err in granting summary judgment on Van’s

defamation claim, because Van provided no evidence of publication—an essential

element of defamation under California law, see Shively v. Bozanich, 80 P.3d 676,

683 (Cal. 2003). Even if we were to consider the security guard’s statement that he

transmitted the statement that Van’s son was a thief,1 he said nothing about

transmitting information regarding Van. Moreover, the mere fact that the



      1
        We do not consider the evidence contained in Van’s supplemental
declaration in support of her opposition to summary judgment, because she
withdrew it prior to the magistrate judge’s order. See Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003). Therefore, we deny as moot Wal-Mart’s motion to
strike portions of Van’s excerpts of record and opening brief. See Smith v. U.S.
Customs & Border Prot., 741 F.3d 1016, 1020 n. 2 (9th Cir. 2014).

                                          4
Notification of Restriction from Property form’s purpose was to bar Van from all

Wal-Mart properties does not mean that the Notification of Restriction from

Property form was transmitted to all Wal-Mart stores. Such an inference, without

more, would be unreasonable. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1065 n.10 (9th Cir. 2002) (“At summary judgment, this court need not draw

all possible inferences in [the plaintiff’s] favor, but only all reasonable ones.”)

(emphasis in original). Finally, the internal Wal-Mart message contains a directive

to enter a matter for “this incident” into Wal-Mart’s electronic documentation

system; it says nothing about entering the Notification of Restriction from Property

form.

        With respect to Van’s false imprisonment claim, the magistrate judge erred

by granting Wal-Mart’s summary judgment motion. Security Guard Leon testified

at his deposition that “in order for Ms. Van to open the door I would need to

move,” and that he “was against the door at different times.” The Notice of

Property Restriction form informed Van that she was an “apprehended subject.”

According to Van, she was told that she must sign the form or the security guards

would have her arrested. The security video shows Security Guard Leon standing

either in front of the door or immediately to one side of the door, except for a short

moment when he stepped out of the room. Further, it would be reasonable to infer


                                           5
from the video that the conversation between Van and the security guards was

intense. Viewing the evidence and drawing all inferences in the light most

favorable to Van, a reasonable juror could find that the words and conduct of the

security guards “furnish[ed] a reasonable apprehension on the part of the one

restrained that [she would] not be allowed to depart.” Schanafelt v. Seaboard Fin.

Co., 239 P.2d 42, 43 (Cal. Ct. App. 1951).2

4.    Because we have reversed the district court as to several of Van’s claims, we

vacate the award of costs and remand for a new determination of costs after other

proceedings on remand. See Cusano v. Klein, 264 F.3d 936, 951 (9th Cir. 2001).

      AFFIRMED in part; REVERSED in part; and REMANDED.

      The parties shall bear their own costs on appeal.




      2
       California’s merchant privilege does not protect Wal-Mart against Van’s
claim that she, as the parent, had been falsely imprisoned. California Penal Code
Section 490.5(b) only imputes the misconduct of a minor to the minor’s parent or
legal guardian for the purposes of civil actions brought by the merchant.

                                         6
