Patrick Tobin v. City and County of S.F.

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 3, 2019
• Docket: 16-17040
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 3 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PATRICK J. TOBIN, No. 16-17040

Plaintiff-Appellant, D.C. No. 3:13-cv-01504-MEJ

v. MEMORANDUM* CITY AND COUNTY OF SAN FRANCISCO,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Maria-Elena James, Magistrate Judge, Presiding

Submitted December 18, 2018** San Francisco, California

Before: GILMAN,*** PAEZ, and OWENS, Circuit Judges.

Patrick Tobin appeals from the district court’s order granting summary

judgment to the City and County of San Francisco (CCSF). As the parties are

* 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 Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. familiar with the facts, we do not recount them here. We affirm.

1. As an initial matter, Tobin failed to show that the district court abused its

discretion in excluding his declaration. See Wong v. Regents of Univ. of Cal., 410

F.3d 1052, 1060 (9th Cir. 2005) (“Rulings regarding evidence made in the context

of summary judgment are reviewed for an abuse of discretion.”). The district court

properly excluded Tobin’s declaration because it was unsigned and contained

instructions from Tobin’s counsel. See 28 U.S.C. § 1746 (requiring that a

declaration be signed and dated); Fed. R. Civ. P. 56(c)(4) (requiring that a

declaration “be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the . . . declarant is competent to testify on

the matters stated”).

2. Tobin unsuccessfully argues that his state-law retaliation claims accrued

in July 2011 and are therefore not time barred under the California Tort Claims

Act. See Cal. Gov’t Code § 911.2(a) (requiring that state-law claims be presented

to the relevant agency “not later than six months after the accrual of the cause of

action”). As an initial matter, the parties agree that Tobin first presented CCSF

with a claim in December 2011. The district court correctly determined that

Tobin’s state-law claims accrued at the latest in May 2010 because Tobin failed to

identify evidence of retaliatory conduct after May 2010. Therefore, the district

court properly ruled that Tobin’s state-law claims are time barred because he failed

2 to present them to CCSF until December 2011, which is “later than six months

after the accrual of the cause of action” in May 2010. Id. In addition, Tobin’s

alternative arguments—that CCSF waived its defense of untimeliness and that his

First and Second Amended Complaints relate back to his initial complaint—are

without merit.

3. Finally, the district court did not err in granting summary judgment to

CCSF on Tobin’s First Amendment retaliation claim under 42 U.S.C. § 1983. To

prevail on his claim, Tobin bore the burden “of showing the state ‘took adverse

employment action . . . [and that the] speech was a ‘substantial or motivating’

factor in the adverse action.’” Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009)

(citation omitted). The district court properly granted summary judgment because

Tobin failed to establish that his protected speech was a substantial or motivating

factor in the adverse employment action. See Campidoglio LLC v. Wells Fargo &

Co., 870 F.3d 963, 973 (9th Cir. 2017) (“We may affirm summary judgment on

any ground supported by the record.”).

AFFIRMED.