NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ERIC LUND; SUSANNAH LUND, No. 20-17133
Plaintiffs-Appellants, D.C. No. 2:19-cv-02287-JAM-DMC v.
STATE OF CALIFORNIA; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Argued and Submitted October 7, 2021 San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and FRIEDLAND, Circuit Judges.
Eric and Susannah Lund appeal the dismissal of their civil action alleging
multiple federal and state law claims against numerous defendants, including the
State of California; the California Highway Patrol (“CHP”); the City of Vacaville,
California; Solano County; the Solano County District Attorney’s Office; and
individual employees of each. We have jurisdiction under 28 U.S.C. § 1291. We
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. review de novo, Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001), and
may affirm on any basis supported by the record, In re Leavitt, 171 F.3d 1219, 1223
(9th Cir. 1999). We refer to the claims by the numbers assigned to them in the
Second Amended Complaint (“SAC”). We affirm in part, vacate in part, and remand
to the district court for further proceedings consistent with this decision.
1. The district court dismissed 69 of the SAC’s 73 claims as barred by the
preclusion doctrines announced in Heck v. Humphrey, 512 U.S. 477, 486–87 (1994)
and Yount v. City of Sacramento, 183 P.3d 471, 484 (Cal. 2008). Defendants bore
the burden to demonstrate the applicability of Heck or Yount to each claim for which
they sought dismissal on that ground. See Washington v. L.A. Cnty. Sheriff’s Dep’t,
833 F.3d 1048, 1056 n.5 (9th Cir. 2016). Rather than addressing the claims
individually, defendants largely took a shotgun approach, seeking a general
dismissal by arguing the SAC’s allegations as a whole are intertwined with the
investigation, arrest, prosecution, and conviction of Mr. Lund. In doing so, they
failed to carry their burden, and it was error to dismiss all claims relating to events
pre-dating Mr. Lund’s conviction on a general finding that the SAC’s “allegations
are inextricably linked to Mr. Lund’s conviction.” We decline to examine each claim
individually for the first time on appeal and instead discuss only those claims
necessary to address the parties’ legal arguments and provide guidance to the district
court on remand.
2 20-17133 Under Heck, a 42 U.S.C. § 1983 claim must be dismissed if “a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence,” unless the conviction or sentence has already been invalidated. Heck, 512
U.S. at 487. Yount applies the same rule to claims under California state law. See
183 P.3d at 484. Thus, Heck and Yount bar a claim if it would negate an element of
the offense or relies on facts inconsistent with the plaintiff’s extant conviction. See
Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (“[I]f a criminal conviction
arising out of the same facts stands and is fundamentally inconsistent with the
unlawful behavior for which section 1983 damages are sought, the 1983 action must
be dismissed.”).
Contrary to the Lunds’ argument, § 1983 claims predicated on Fourth
Amendment violations are not categorically exempt from Heck preclusion. Szajer
v. City of Los Angeles, 632 F.3d 607, 611 (9th Cir. 2011) (“Although footnote seven
[of Heck] left open the question of the applicability of Heck to Fourth Amendment
claims, this Court has since answered that question affirmatively.”). For example,
because Claims 1 and 2 attack the probable cause basis for the search warrant that
uncovered the child pornography for which Mr. Lund was convicted, the district
court properly dismissed those claims as Heck-barred. See Whitaker v. Garcetti, 486
F.3d 572, 583–84 (9th Cir. 2007). Dismissal of the parallel state law claims—
Claims 3, 4, and 5—as Yount-barred was proper for the same reason. See Yount, 183
3 20-17133 P.3d at 484 (finding no reason to distinguish between federal and state law claims).
Additionally, the Lunds do not challenge the dismissal of Claims 37, 38, and 43 as
Heck-barred. However, the dismissal of any Heck/Yount-barred claims should have
been without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th
Cir. 1995). Therefore, we affirm the dismissal of claims 1–5, 37, 38, and 43 but
remand to the district court with instructions to amend the judgment to reflect that
the dismissal of these claims is without prejudice to refiling in the event Mr. Lund’s
conviction is invalidated.
Conversely, Heck does not automatically bar a claim simply because the claim
relates to events that pre-date Mr. Lund’s conviction; rather, to trigger the
Heck/Yount bar, the claim must be fundamentally inconsistent with Mr. Lund’s
conviction. See Smithart, 79 F.3d at 952. For example, Claim 45 alleges a Fourth
Amendment violation resulting from the presence of third parties during the
execution of a subsequent search warrant for the Lunds’ home following Mr. Lund’s
arrest. A claim asserting that the presence of third parties during the search
implicated Mr. Lund’s Fourth Amendment rights does not, on its face, impugn the
probable cause for the search or otherwise rely on facts inconsistent with his
conviction. See Wilson v. Layne, 526 U.S. 603, 614 n.2 (1999). At oral argument,
counsel for the CHP defendants effectively conceded that some claims, such as
Claim 45, might not imply the invalidity of Mr. Lund’s conviction as pled but argued
4 20-17133 the claims fail to state a cognizable theory for relief on the merits. We leave it to the
defendants to argue specifically and the district court to determine in the first
instance whether each individual claim necessarily implies the invalidity of Mr.
Lund’s conviction or warrants dismissal on other grounds. Thus, we vacate the
dismissal of Claims 6–35, 39–42, 44–59, 65–67, and 69–73 and remand for further
proceedings consistent with this decision.
2. The Lunds next argue that the district court erred by concluding that
Claims 62 and 64 were barred by California Government Code section 821.6. We
agree. In Garmon v.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ERIC LUND; SUSANNAH LUND, No. 20-17133
Plaintiffs-Appellants, D.C. No. 2:19-cv-02287-JAM-DMC v.
STATE OF CALIFORNIA; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Argued and Submitted October 7, 2021 San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and FRIEDLAND, Circuit Judges.
Eric and Susannah Lund appeal the dismissal of their civil action alleging
multiple federal and state law claims against numerous defendants, including the
State of California; the California Highway Patrol (“CHP”); the City of Vacaville,
California; Solano County; the Solano County District Attorney’s Office; and
individual employees of each. We have jurisdiction under 28 U.S.C. § 1291. We
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. review de novo, Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001), and
may affirm on any basis supported by the record, In re Leavitt, 171 F.3d 1219, 1223
(9th Cir. 1999). We refer to the claims by the numbers assigned to them in the
Second Amended Complaint (“SAC”). We affirm in part, vacate in part, and remand
to the district court for further proceedings consistent with this decision.
1. The district court dismissed 69 of the SAC’s 73 claims as barred by the
preclusion doctrines announced in Heck v. Humphrey, 512 U.S. 477, 486–87 (1994)
and Yount v. City of Sacramento, 183 P.3d 471, 484 (Cal. 2008). Defendants bore
the burden to demonstrate the applicability of Heck or Yount to each claim for which
they sought dismissal on that ground. See Washington v. L.A. Cnty. Sheriff’s Dep’t,
833 F.3d 1048, 1056 n.5 (9th Cir. 2016). Rather than addressing the claims
individually, defendants largely took a shotgun approach, seeking a general
dismissal by arguing the SAC’s allegations as a whole are intertwined with the
investigation, arrest, prosecution, and conviction of Mr. Lund. In doing so, they
failed to carry their burden, and it was error to dismiss all claims relating to events
pre-dating Mr. Lund’s conviction on a general finding that the SAC’s “allegations
are inextricably linked to Mr. Lund’s conviction.” We decline to examine each claim
individually for the first time on appeal and instead discuss only those claims
necessary to address the parties’ legal arguments and provide guidance to the district
court on remand.
2 20-17133 Under Heck, a 42 U.S.C. § 1983 claim must be dismissed if “a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence,” unless the conviction or sentence has already been invalidated. Heck, 512
U.S. at 487. Yount applies the same rule to claims under California state law. See
183 P.3d at 484. Thus, Heck and Yount bar a claim if it would negate an element of
the offense or relies on facts inconsistent with the plaintiff’s extant conviction. See
Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (“[I]f a criminal conviction
arising out of the same facts stands and is fundamentally inconsistent with the
unlawful behavior for which section 1983 damages are sought, the 1983 action must
be dismissed.”).
Contrary to the Lunds’ argument, § 1983 claims predicated on Fourth
Amendment violations are not categorically exempt from Heck preclusion. Szajer
v. City of Los Angeles, 632 F.3d 607, 611 (9th Cir. 2011) (“Although footnote seven
[of Heck] left open the question of the applicability of Heck to Fourth Amendment
claims, this Court has since answered that question affirmatively.”). For example,
because Claims 1 and 2 attack the probable cause basis for the search warrant that
uncovered the child pornography for which Mr. Lund was convicted, the district
court properly dismissed those claims as Heck-barred. See Whitaker v. Garcetti, 486
F.3d 572, 583–84 (9th Cir. 2007). Dismissal of the parallel state law claims—
Claims 3, 4, and 5—as Yount-barred was proper for the same reason. See Yount, 183
3 20-17133 P.3d at 484 (finding no reason to distinguish between federal and state law claims).
Additionally, the Lunds do not challenge the dismissal of Claims 37, 38, and 43 as
Heck-barred. However, the dismissal of any Heck/Yount-barred claims should have
been without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th
Cir. 1995). Therefore, we affirm the dismissal of claims 1–5, 37, 38, and 43 but
remand to the district court with instructions to amend the judgment to reflect that
the dismissal of these claims is without prejudice to refiling in the event Mr. Lund’s
conviction is invalidated.
Conversely, Heck does not automatically bar a claim simply because the claim
relates to events that pre-date Mr. Lund’s conviction; rather, to trigger the
Heck/Yount bar, the claim must be fundamentally inconsistent with Mr. Lund’s
conviction. See Smithart, 79 F.3d at 952. For example, Claim 45 alleges a Fourth
Amendment violation resulting from the presence of third parties during the
execution of a subsequent search warrant for the Lunds’ home following Mr. Lund’s
arrest. A claim asserting that the presence of third parties during the search
implicated Mr. Lund’s Fourth Amendment rights does not, on its face, impugn the
probable cause for the search or otherwise rely on facts inconsistent with his
conviction. See Wilson v. Layne, 526 U.S. 603, 614 n.2 (1999). At oral argument,
counsel for the CHP defendants effectively conceded that some claims, such as
Claim 45, might not imply the invalidity of Mr. Lund’s conviction as pled but argued
4 20-17133 the claims fail to state a cognizable theory for relief on the merits. We leave it to the
defendants to argue specifically and the district court to determine in the first
instance whether each individual claim necessarily implies the invalidity of Mr.
Lund’s conviction or warrants dismissal on other grounds. Thus, we vacate the
dismissal of Claims 6–35, 39–42, 44–59, 65–67, and 69–73 and remand for further
proceedings consistent with this decision.
2. The Lunds next argue that the district court erred by concluding that
Claims 62 and 64 were barred by California Government Code section 821.6. We
agree. In Garmon v. County of Los Angeles, we predicted that “the California
Supreme Court would adhere to [its holding that section 826.1 is confined to
malicious prosecution actions] even though California Courts of Appeal have
strayed from it.” 828 F.3d 837, 847 (9th Cir. 2016). Until the California Supreme
Court holds otherwise, we are bound by Garmon’s interpretation of California law.
See FDIC v. McSweeney, 976 F.2d 532, 535 (9th Cir. 1992) (“[W]e are bound by
our prior decisions interpreting state as well as federal law in the absence of
intervening controlling authority.”). Claims 62 and 64 regard an allegedly
defamatory post on the Solano County District Attorney’s Facebook page, and
neither asserts a claim for malicious prosecution. Accordingly, it was error to
dismiss Claims 62 and 64 under California Government Code section 821.6. See
Garmon, 828 F.3d at 847.
5 20-17133 3. We need not determine whether the district court erred by applying
absolute immunity to Claim 63 because Claim 63 fails to state a cognizable claim
for relief. To state a defamation claim under § 1983, a plaintiff must allege “injury
to [the] plaintiff’s reputation from defamation accompanied by an allegation of
injury to a recognizable property or liberty interest.” Crowe v. County of San Diego,
608 F.3d 406, 444 (9th Cir. 2010). The SAC does not allege the requisite
constitutional injury to support this type of “defamation plus” claim and does not
plead a viable § 1983 claim predicated on a Fourteenth Amendment or Eighth
Amendment violation. See id.; Thornton v. City of St. Helens, 425 F.3d 1158, 1167
(9th Cir. 2005) (“An equal protection claim will not lie by conflating all persons not
injured into a preferred class receiving better treatment than the plaintiff.” (internal
quotation marks and citation omitted)); Oltarzewski v. Ruggiero, 830 F.2d 136, 139
(9th Cir. 1987) (acknowledging verbal harassment generally is not sufficient to state
a constitutional deprivation). Therefore, we affirm the dismissal of Claim 63 with
prejudice.
4. In their reply brief, the Lunds concede that the district court properly
dismissed Claims 36 and 61 with prejudice. They also concede that the district court
properly dismissed Claim 60 with prejudice to the extent it is based on the
prosecutor’s introduction of evidence at trial. It is apparent from the face of the SAC
that absolute immunity shields in full the prosecutorial acts forming the basis of
6 20-17133 Claim 60. See Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009). Therefore, we
affirm the dismissal of Claims 36, 60, and 61 with prejudice.
5. Because we vacate the dismissal of several federal claims and remand
for further proceedings, we vacate the district court’s dismissal of Claim 68 against
defendants Hai Luc and Wanona Ireland, in their individual capacities.1 In the event
the district court dismisses the remaining federal claims on remand, the court again
may determine whether to decline to exercise supplemental jurisdiction over Claim
68 and any other remaining state law claims. See 28 U.S.C. § 1367(c)(3); Ove v.
Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (district court may decline to exercise
supplemental jurisdiction over state law claims if all claims over which it has
original jurisdiction have been dismissed).
In conclusion, we:
• Affirm the dismissal of Claims 36, 60, 61, and 63 with prejudice;
• Affirm the dismissal of Claims 1–5, 37, 38, and 43 and remand to the district court with instructions to amend the judgment to reflect that the dismissal of these claims is without prejudice to refiling in the event Mr. Lund’s conviction is invalidated; and
• Vacate the dismissal of Claims 6–35, 39–42, 44–59, 62, and 64–73 and remand for further proceedings consistent with this decision.2
1 The Lunds do not challenge the dismissal of Claim 68 against CHP, the State, or Luc and Ireland in their official capacities. 2 The Lunds concede that the Eleventh Amendment bars all claims against CHP, Warren Stanely in his official capacity, and the State on claims brought against CHP. See Sato v. Orange Cnty. Dep’t of Educ., 861 F.3d 923, 928 (9th Cir. 2017).
7 20-17133 The Lunds’ motion for judicial notice (Docket Entry No. 33) is denied as
unnecessary.
AFFIRMED in part, VACATED in part, and REMANDED. The parties
will bear their own costs on appeal.
8 20-17133