                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 17 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOHN BLACK, VICTOR GREGORY,                      No.   17-55956
THOMAS STEPHENSON, JACOB
HUBER, CARLA MCCULLOUGH, TIM                     D.C. No.
BRAYSHAW, DUSTIN FUJIWARA,                       5:14-cv-02588-JBG-KK
JOSEPH VIOLA, JUSTIN VELOZ,
GEOFFREY BARRETT, BRIAN PARK,
RUSSELL THURMAN, BOYD MAYO,                      MEMORANDUM*
and VERNELL ROSS-MULLIN,

              Plaintiffs-Appellants,

 v.

CORVEL ENTERPRISE COMP INC.,
YORK RISK SERVICES GROUP, INC.,
TANYA MULLINS, PAULA
FANTULIN, BRITNEY FAITH, and
MEXTLI HYDE,

              Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                     Jesus G. Bernal, District Judge, Presiding

                     Argued and Submitted December 4, 2018
                              Pasadena, California


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: RAWLINSON and BEA, Circuit Judges, and BASTIAN,** District Judge.

      The district court dismissed Appellants’ claims under the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, and 42

U.S.C. § 1983 pursuant to Rule 12(b)(6). The district court concluded Appellants

had failed to allege the denial of a property interest sufficient to support their

claims under RICO and § 1983. Additionally, the district court dismissed

Appellants’ state law claims, finding that they were preempted by the exclusive

remedy provision of the California Workers Compensation Act (“WCA”). Cal.

Lab. Code § 3602. We have jurisdiction under 28 U.S.C. § 1291.

                                     STANDARD

      We review de novo a district court’s dismissal of an action under Rule

12(b)(6). Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1158 (9th Cir. 2014).

      On a motion to dismiss for failure to state a claim, all factual allegations are

accepted as true and construed in the light most favorable to the nonmoving party.

Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029-30 (9th Cir. 2009). To

survive dismissal, the complaint must allege sufficient facts “to state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,



      **
             The Honorable Stanley Allen Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
                                            2
570 (2007). The plausibility requirement is satisfied when the plaintiff “pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 556).

                                   DISCUSSION

1.    RICO

      To maintain a civil RICO claim, a plaintiff must allege that the defendant

engaged in: “(1) conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity and, additionally, must establish that (5) the defendant caused

injury to plaintiff’s business or property.” Chaset v. Fleer/Skybox Int’l, LP, 300

F.3d 1083, 1086 (9th Cir. 2002) (citing 18 U.S.C. §§ 1962(c), 1964(c)).

      At issue is whether Appellants have sufficiently alleged an injury to

property. Appellants argue they maintain a property interest in their workers’

compensation benefits prior to a final award of benefits. We disagree. “[T]he right

to [California] workers’ compensation benefits is ‘wholly statutory,’ and such




                                          3
rights are not vested until they are ‘reduced to final judgment.’”1 Angelotti

Chiropractic, Inc.v. Baker, 791 F.3d 1075, 1081 (9th Cir. 2015) (quoting Graczyk

v. Workers’ Comp. Appeals Bd., 229 Cal. Rptr. 494, 500 (Cal. Ct. App. 1986)).

Accordingly, the district court properly dismissed Appellants’ RICO claims.

2.    42 U.S.C. § 1983

      To state a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) the

deprivation of “a right secured by the Constitution and laws of the United States,”

and (2) “that the alleged deprivation was committed by a person acting under color

of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

      Appellants’ § 1983 claim is premised on the Due Process Clause of the Fifth

and Fourteenth Amendments. “The first inquiry in every due process challenge is

whether the plaintiff has been deprived of a protected interest in ‘property’ or

‘liberty.’ ” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999).




      1
        Appellants Brayshaw and Viola alleged injury to a property right because
they alleged that they were awarded workers’ compensation benefits in the form of
a final judgment and Appellees delayed or denied issuing benefits pursuant to their
judgments. However, their RICO claims still fail because they did not sufficiently
allege a pattern of racketeering activity. See Durning v. Citibank, Int’l, 990 F.2d
1133, 1138 (9th Cir. 2011); Turner v. Cook, 362 F.3d 1019, 1229 (9th Cir. 2004).


                                           4
      Again, Appellants fail to establish any property interest in their workers’

compensation benefits prior to a final award of benefits.2 Angelotti, 791 F.3d at

1081. Therefore, the district court properly dismissed Appellants’ 42 U.S.C. §1983

claims.

3.    State Law Claims

      Finally, we find the exclusive remedy provision of the WCA preempts

Appellants’ IIED and UCL claims. Charles J. Vacanti, M.D., Inc. v. State Comp.

Ins. Fund, 14 P. 3d 234, 244-45 (Cal. 2001). Appellants’ alleged injury is “a

normal part of the [workers’ compensation] claims process.” Id. at 250 (citing

Marsh & McLennan, Inc. v. Superior Court, 774 P.2d 762, 767 (Cal. 1989)).

Therefore, the district court properly dismissed Appellants’ state law claims

pursuant to the exclusive remedy provision of the WCA.

      AFFIRMED.




      2
        Although Appellants Brayshaw and Viola alleged injury to a property right,
their § 1983 claims fail because they did not sufficiently allege that Appellees’
violations were committed pursuant to “a policy, practice or custom of the entity.”
Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011); see also Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978).
                                          5
