Neal v. City of Bainbridge Island

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2025
• Docket: 24-3299
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LISA C. NEAL, No. 24-3299 D.C. No. Plaintiff - Appellant, 3:20-cv-06025-DGE v. MEMORANDUM* CITY OF BAINBRIDGE ISLAND, a Municipal Corporation,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Washington David G. Estudillo, District Judge, Presiding

Argued and Submitted June 2, 2025 Seattle, Washington

Before: RAWLINSON, BRESS, and BUMATAY, Circuit Judges.

Lisa Neal (Neal) appeals the district court’s grant of summary judgment in

favor of the City of Bainbridge Island (the City) on her claims for First

Amendment retaliation, defamation, intentional and negligent infliction of

emotional distress, and violation of the Washington Public Records Act (PRA),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 Wash. Rev. Code Ch. 42.56. We affirm.

1. Our decision in Lathus v. City of Huntington Beach, 56 F.4th 1238 (9th

Cir. 2023) squarely resolves Neal’s First Amendment retaliation claim. As in

Lathus, the City’s Manual of City Governance empowered the City Council to

remove Neal “without cause.” Id. at 1239. Committee members “speak to the

public and to other policymakers on behalf of” the City Council and “could plainly

undermine [the City Council’s] credibility and goals.” Id. at 1242 (citations and

internal quotation marks omitted). As in Lathus, the committee here “is designed

to influence policy decisions” and act as “a conduit between the community and

City Council.” Id. Therefore, the City Council “is entitled to an appointee who

represents [its] political outlook and priorities.” Id. See Bainbridge Island

Municipal Code 2.16.210(E)(3)(c), (F)(2)(c) (providing that the committee must

“establish a public participation process,” “ensure outreach to the community

during the subarea planning process,” and “provide opportunity for the public to

comment on the vision and goals of the subarea plan”). The district court did not

err in granting summary judgment on this claim. See Blair v. Bethel Sch. Dist.,

608 F.3d 540, 546 (9th Cir. 2010).

2. Neal failed to raise a material issue of fact as to her defamation claim.

Statements of opinion “are not actionable.” Robel v. Roundup Corp., 59 P.3d 611,

621 (Wash. 2002) (en banc) (citation omitted). Under the “totality of the

2 24-3299 circumstances,” statements accusing Neal of being “disrupt[ing],” “abusive,”

“ugly,” and “totally inappropriate” are statements of opinion. Dunlap v. Wayne,

716 P.2d 842, 848 (Wash. 1986) (en banc) (noting that “statements of opinion are

expected to be found more often in . . . political debates”). The other allegedly

defamatory statements are not “demonstrably false” because the record supports a

determination that members did quit because of her actions and that she refused to

meet with the Planning Director. Reykdal v. Espinoza, 473 P.3d 1221, 1224–25

(Wash. 2020) (en banc).

3. Neal failed to raise a material issue of fact as to her claims for intentional

and negligent infliction of emotional distress claims. They were based on the same

facts as her defamation claim, and did not rise to the level of extreme and

outrageous conduct. See Kloepfel v. Bokor, 66 P.3d 630, 632 (Wash. 2003) (en

banc). Rather, the conduct in question involved, at most, “insults, indignities,

threats, annoyances, petty oppressions, or other trivialities.” Id. (citation and

internal quotation marks omitted).

4. The PRA requires Washington state and local agencies to “make a

sincere and adequate search for records” when requested, but agencies are not

required to “create or produce a record that is nonexistent.” Fisher Broad.-Seattle

TV LLC v. City of Seattle, 326 P.3d 688, 692 (Wash. 2014) (en banc) (citations

omitted). The City’s clerk attested that she searched the Zoom Recordings and

3 24-3299 Trash folders, and confirmed that there were no video files of any prior committee

meetings. She also attested that she did not delete any files after Neal’s request.

Thus, the City met its burden of showing an adequate search for the records, and

the district court’s entry of summary judgment in favor of the City on this claim

was supported by the record. See Neighborhood All. of Spokane Cnty. v. Spokane

Cnty., 261 P.3d 119, 128 (Wash. 2011).

No Washington law supports Neal’s assertion that cities must retain

documents before a PRA request is made. To the contrary, decisions from the

Washington Court of Appeals have determined that there is no PRA violation

when a document is destroyed before a request is made. See, e.g., Bldg. Indus.

Ass’n of Wash. v. McCarthy, 218 P.3d 196, 204 (Wash. Ct. App. 2009). Because

Neal has provided no evidence that the records existed at the time of her PRA

request, the district court did not err in granting summary judgment to the City on

this claim.

5. The district court did not abuse its discretion by finding that Neal had not

diligently pursued previous discovery opportunities. “A district court abuses its

discretion with respect to discovery orders only if the movant diligently pursued

its previous discovery opportunities, and if the movant can show how

allowing additional discovery would have precluded summary judgment.”

IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1127 (9th Cir. 2020) (citation and

4 24-3299 internal quotation marks omitted) (emphases in the original). Neal repeatedly

delayed the deposition under Rule 30(b)(6) of the Federal Rules of Civil Procedure

to wait for new disclosures from discovery and PRA requests. She finally took the

deposition 17 months after discovery was opened and 10 months after the original

discovery cutoff date. Instead of seeking to depose individuals with relevant

personal knowledge, Neal waited months for the court to issue an order to compel

such information from the City, which the court declined to do.

6. The district court did not abuse its discretion by denying Neal’s motion

under Rule 56(d) for additional discovery on her PRA claim. Neal does not

plausibly assert any pertinent discovery that would have been obtained if the

motion had been granted and how that discovery “would have precluded summary

judgment.” Id. For the same reason, the district court did not abuse its discretion

by denying Neal’s motion for a continuance of discovery. See id.

AFFIRMED.

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