Little Butte Prop. Water Assn. v. Ken Bradley

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2019
• Docket: 18-35728
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 21 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LITTLE BUTTE PROPERTY OWNERS No. 18-35728 WATER ASSOCIATION, a Washington nonprofit corporation, D.C. No. 2:17-cv-00162-RMP

Plaintiff-Appellee, MEMORANDUM* v.

KEN B. BRADLEY, an individual,

Defendant-third-party- plaintiff-Appellant,

v.

CHELAN COUNTY; CHELAN COUNTY SHERIFFS OFFICE; DOMINIC MUTCH, Officer; CHRIS EAKLE, Officer; MIKE LAMON, Officer,

Third-party-defendants- Appellees.

Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted October 22, 2019** Seattle, Washington

Before: CLIFTON and IKUTA, Circuit Judges, and RAKOFF,*** District Judge.

Ken Bradley appeals a summary judgment order awarding Little Butte

Property Owners Water Association (“Little Butte”) permanent injunctive relief

and damages arising from Bradley’s interference with Little Butte’s access to an

easement, and disposing of Bradley’s counterclaims against Little Butte and third-

party claims against Chelan County, the Chelan County Sheriff’s Office, and

three individual law enforcement officers (collectively, “the Chelan County

Defendants”). We affirm summary judgment and deny without prejudice the

request for attorney’s fees and costs on appeal.

The material facts of this case were set forth in the statements filed at

summary judgment by Little Butte and the Chelan County Defendants pursuant to

Local Rule (“LR”) 56.1(a) (2017). As noted by the district court, Bradley did not

dispute these facts by filing an appropriate opposing statement, see LR 56.1(b), (d),

or supply the record with any admissible contradictory evidence. Bradley’s

declarations submitted at summary judgment were unsigned and undated, see 28

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 2 U.S.C. § 1746, referred to missing exhibits, and did not sufficiently establish a

basis of personal knowledge. See Fed. R. Civ. P. 56(c)(4). The district court

deemed the material facts undisputed pursuant to Rule 56(e), Federal Rules of

Civil Procedure, and LR 56.1(d), and Bradley does not challenge this ruling on

appeal. Therefore, there is no genuine issue of material fact that Little Butte is

entitled to damages and injunctive relief.

Bradley’s sole argument against the injunctive relief and damages award is

unconvincing. Bradley argues that Little Butte’s claims for relief related to a

temporary restraining order (TRO) that was “void” because it was not personally

served. Without explaining this relationship further, or citing authority, Bradley

asserts that the district court “should have found that the TRO had no effect,”

which should have resulted in “an automatic denial” of Little Butte’s claims for

injunctive relief and damages. Among other reasons for rejecting this argument,

we note that Washington courts do not require formal service of process before

issuing a TRO. See Wash. R. Civ. P. 65. Moreover, the existence of a valid TRO

was not necessary for the district court to award damages or an injunction to Little

Butte for Bradley’s interference with Little Butte’s easement. See Zonnebloem,

LLC v. Blue Bay Holdings, LLC, 401 P.3d 468, 471 (2017) (“An easement holder

3 may obtain any appropriate remedy for unreasonable interference with an

easement.”)

We are also unpersuaded by Bradley’s arguments concerning his

counterclaim against Little Butte for damages arising from trespass to land. The

district court disposed of this counterclaim based on lack of factual support,

finding no evidence to substantiate Bradley’s claimed damages or support that

Little Butte “wrongfully” caused injury to Bradley’s land. See Revised Code of

Washington (RCW) 4.24.630(1). On appeal, Bradley argues that there was an

issue of fact as to the element of wrongfulness, but does not support his assertions

with references to the record, and thus does not adequately respond to the district

court’s conclusion that the record was inadequate. Moreover, Bradley does not

challenge the finding as to his damages. Therefore, Bradley’s trespass claim fails.

We are also unpersuaded by Bradley’s argument concerning his third-party

claims for trespass and negligence. In Washington, “claims for trespass and

negligence arising from a single set of facts [are treated] as a single negligence

claim.” Pruitt v. Douglas Cty., 66 P.3d 1111, 1115 (Wash. Ct. App. 2003)

(citation omitted). The elements of a negligence claim are duty, breach, causation,

and injury. See Keller v. City of Spokane, 44 P.3d 845, 848 (Wash. 2002). Under

the doctrine of negligence per se, the elements of duty and breach are satisfied if

4 the defendant violates a statute or ordinance “designed to (a) protect a class of

persons which includes the person whose interest is invaded, (b) protect the

particular interest which is invaded, (c) protect against the kind of harm which

resulted, and (d) protect that interest against the particular hazard from which the

harm results.” Bauman v. Crawford, 704 P.2d 1181, 1184 (Wash. 1985) (citation

omitted).

The district court held that Bradley provided no authority to define the

police officers’ duty or to support that their conduct was negligent per se. We

observe the same on appeal. Bradley relies on a theory of negligence per se by

arguing that the officers were negligent for “violating” Washington’s “knock and

wait” statute, RCW 10.31.040, by forcibly entering his home to execute a civil

warrant, see Washington v. Thompson, 92 P.3d 228, 232 (Wash. 2004), and how

they should be liable for damage they caused to his front door. However, Bradley

offers no analysis or authority to show that a Washington state court would apply

the negligence per se framework to the “knock and wait” statute. Thus, even when

broadly construed, Bradley’s argument is not sufficiently discernable on appeal.

See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (“We will not

manufacture arguments for an appellant, and a bare assertion does not preserve a

claim, particularly when, as here, a host of other issues are presented for review.”).

5 Moreover, as noted by the district court, Bradley presented no factual

support for his assertion that his property was damaged. While Bradley asserts that

there are photographs showing the damage to his door, he acknowledges that these

photos were not part of the record. We therefore affirm the disposition.

Finally, we deny without prejudice Little Butte’s and the Chelan County

Defendants’ request for appellate attorney’s fees and costs under Rule 38 of the

Federal Rules of Appellate Procedure and 28 U.S.C. § 1927. Under Rule 38, when

an appeal is frivolous, this court “may, after a separately filed motion or notice

from the court and reasonable opportunity to respond, award just damages and

single or double costs to the appellee.” Fed. R. App. P. 38. The appellees

requested the award of fees and costs in their answering brief, but that is not a

“separately filed motion” and did not trigger this court’s authority to impose such

an award under the rule.

AFFIRMED.