Esposito v. Bowen Property Mgmt.

300 F. App'x 526

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 17, 2008
• Docket: Nos. 07-35361, 07-35621, 07-35785, 07-35966
• Status: Published

Opinion

MEMORANDUM

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It follows from Arnold v. International Business Machines, 637 F.2d 1350 (9th Cir. 1981), that the private actors in this case cannot be liable because there is no evidence that Bowen or Balias exercised “control or power” over the police and prosecutor, or directed their activities. Id. at 1356. Kriger and Samolovov both testified that their damages resulted from the criminal case against them. Their testimony did not establish any damages from protected activity independent of the criminal prosecution. Accordingly, Bowen and Balias were entitled to judgment as a matter of law. Kriger and Samolovov’s activities (which we assume for the sake of this analysis were protected) did not proximately cause the adverse action, arrest and prosecution, which resulted in their damages.

We therefore reverse and remand with instructions to enter judgment in favor of Bowen and Balias. We also direct that the attorney’s fees awards in favor of Kriger and Samolovov be vacated as they no longer are prevailing parties.

REVERSED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.