Lori Shavlik v. City of Snohomish

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 3 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LORI SHAVLIK, individually and as a No. 18-35455 marital community; KENNETH SHALVIK, individually and as a marital community, D.C. No. 2:17-cv-00144-JCC

Plaintiffs-Appellants, MEMORANDUM* v.

CITY OF SNOHOMISH, a Municipal Corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Submitted August 29, 2019** Seattle, Washington

Before: McKEOWN and BYBEE, Circuit Judges, and GAITAN,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation. Lori Shavlik and Kenneth Shavlik appeal the district court’s entry of

summary judgment in favor of the City of Snohomish, the Snohomish County Fire

Protection District No. 4, and Snohomish County. Because the parties are familiar

with the facts, we do not recite them here. We have jurisdiction under 28 U.S.C.

§ 1291, and we review de novo the district court’s grant of summary judgment and

for abuse of discretion its sua sponte entry of summary judgment. See Bravo v.

City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011); Arce v. Douglas, 793

F.3d 968, 976 (9th Cir. 2015). We affirm.

None of Kenneth’s claims are at issue on appeal. He stipulated to dismissal

of his state-law tort claims and does not appeal the district court’s ruling that he

cannot base his claim under 42 U.S.C. § 1983 on Lori’s rights.

Summary judgment was appropriate as to Lori’s claims. She concedes that

her defamation claims fall outside the statute of limitations. The malicious

prosecution claim fails because the limited non-speculative evidence does not

suggest that “hostility or ill will” motivated the prosecution. Peasley v. Puget

Sound Tug & Barge Co., 125 P.2d 681, 689 (Wash. 1942). As to her related claim

for outrage, Lori presented inadequate evidence to show that the conduct was

“outrageous and extreme.” Reid v. Pierce County, 961 P.2d 333, 337 (Wash.

1998) (conduct must be “beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community” (citation,

2 emphasis, and internal quotation marks omitted)). Finally, Lori did not identify or

present evidence of an official custom or policy that could support her § 1983

claim. See King v. County of Los Angeles, 885 F.3d 548, 558 (9th Cir. 2018).

The district court permissibly entered summary judgment sua sponte in favor

of the County. The Shavliks did not receive notice and time to respond, but the

relevant issues were fully and fairly ventilated. See Arce, 793 F.3d at 976.

We deny as moot the appellees’ request to strike the opening brief and

dismiss the appeal for failure to comply with the Circuit Rules. We grant the

Skavliks’ motion to excuse their late-filed reply brief (Dkt. 35).

AFFIRMED.