NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 23 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSCAR SALINAS, No. 17-17154

Plaintiff-Appellant, D.C. No. 5:15-cv-06336-HRL

v.

MEMORANDUM*

PALO ALTO UNIVERSITY; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Howard R. Lloyd, Magistrate Judge, Presiding**

Submitted May 15, 2018***

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges

Oscar Salinas appeals pro se from the district court’s judgment in his

diversity action alleging state law claims related to his dismissal from Palo Alto

University’s clinical psychology doctoral program. We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 1291. We review de novo. Trunk v. City of San Diego, 629 F.3d 1099,

1105 (9th Cir. 2011) (cross-motions for summary judgment); Edwards v. Marin

Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004) (dismissal for failure to state a

claim). We affirm.

The district court properly granted summary judgment on Salinas’s contract

claims because Salinas failed to raise a genuine dispute of material fact as to

whether Palo Alto University breached a contractual duty or whether Palo Alto

University’s actions were arbitrary and capricious. See Paulsen v. Golden Gate

Univ., 602 P. 2d 778, 781 (Cal. 1979) (setting forth deferential standard of review

for a university’s academic decisions); Banks v. Dominican Coll., 42 Cal. Rptr. 2d

110, 115 (Ct. App. 1995) (“An essential element of all claims . . . which seek to

challenge an academic decision of a private university, is proof that the decision

was arbitrary and capricious, because it was not based upon any discernible

legitimate, rational basis.”).

The district court properly granted summary judgment on Salinas’s

California Education Code Section 94367 claim because Salinas failed to raise a

genuine dispute of material fact as to whether Palo Alto University subjected

Salinas to disciplinary sanctions or whether Salinas was dismissed solely on the

basis of speech protected under the statute. See Cal. Educ. Code § 94367(a); Yu v.

U. of La Verne, 126 Cal. Rptr. 3d 763, 772 (Cal. App. 2011) (purpose of statute “to

2 17-17154 prohibit private universities from punishing students solely for engaging in

speech.”).

The district court properly dismissed Salinas’s conspiracy claims because

the agent’s immunity rule bars such claims. See Black v. Bank of Am., 35 Cal.

Rptr. 2d 725, 727 (Ct. App. 1994) (“It has long been the rule in California that

agents and employees of a corporation cannot conspire with their corporate

principal or employer where they act in their official capacities on behalf of the

corporation and not as individuals for their individual advantage.” (citation and

internal quotation marks omitted)).

The district court did not abuse its discretion in denying Salinas’s request for

access to personal information of former patients because Salinas failed to show

that the denial caused actual and substantial prejudice. See Hallett v. Morgan, 296

F.3d 732, 751 (9th Cir. 2002) (setting forth standard of review and explaining that

the district court’s decision to deny discovery will not be disturbed unless there is a

clear showing that the denial “results in actual and substantial prejudice to the

complaining litigant” (citation and internal quotation marks omitted)).

We reject as meritless Salinas’s contentions that his dismissal from the

university was disciplinary, that he was denied due process, or that evidence was

improperly destroyed.

We do not consider matters not specifically and distinctly raised and argued

3 17-17154 in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

4 17-17154