NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 27 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CORY SPENCER, an individual; et al., No. 18-55364

Plaintiffs-Appellants, D.C. No. 2:16-cv-02129-SJO-RAO v.

LUNADA BAY BOYS; et al., MEMORANDUM*

Defendants-Appellees.

CORY SPENCER, an individual; et al., No. 18-55383

Plaintiffs-Appellees, D.C. No. 2:16-cv-02129-SJO-RAO v.

BRANT BLAKEMAN, an individual member of the Lunada Bay Boys,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted February 5, 2020 Pasadena, California

Before: IKUTA, CHRISTEN, and LEE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Cory Spencer, Diana Reed, and the Coastal Protection Rangers (CPR)

appeal the district court’s grant of summary judgment in favor of City of Palos

Verdes Estates and its former police chief. We affirm in part, reverse in part, and

remand solely for the court to reduce the sanctions award against Brant Blakeman.

1. Spencer and Reed are surfers who faced harassment by a territorial

surf gang known as the Lunada Bay Boys in Palos Verdes Estates. The plaintiff-

appellants sued the City and its former chief of police, Jeff Kepley, for failing to

adequately protect non-residents from the Lunada Bay Boys.

2. Standing: The district court did not err in finding that the CPR lacked

organizational and associational standing to pursue an equal protection claim

sounding in racial or gender discrimination. CPR raised these theories for the first

time in their opposition to summary judgment. CPR also cannot claim

associational standing because it has not identified any individual member who has

standing to sue in his or her own right. See United Food & Commercial Workers

Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555 (1996).

3. Privileges and Immunities Claim: The district court properly

dismissed the Privileges and Immunities claim. We review dismissals under

Federal Rule of Civil Procedure 12(b)(6) de novo. See Zimmerman v. City of

Oakland, 255 F.3d 734, 737 (9th Cir. 2001). The Privileges and Immunities

Clause under Article IV bars discrimination against out-of-state residents, not in-

2 state residents. See Hawaii Boating Ass’n v. Water Transp. Facilities Div., 651

F.2d 661, 666 (9th Cir. 1981) (ruling that Privileges and Immunities Clause does

not apply where in-state plaintiffs challenge an allegedly discriminatory state or

municipal policy).

Here, Spencer and Reed are both California residents and challenge actions

by Palos Verdes Estates. This court’s Hawaii Boating Ass’n ruling alone ends the

inquiry. Moreover, CPR’s claim under the Privileges and Immunities Clause of

Article IV fails because it does not have associational standing, and it may not

assert such a claim on its own behalf because it is a corporation. See Shell Oil Co.

v. City of Santa Monica, 830 F.2d 1052, 1058 n.7 (9th Cir. 1987).

4. Equal Protection Claim: The district court did not err by granting

summary judgment in favor of the City and Kepley on the plaintiff-appellants’

Equal Protection Claim. We review a district court’s grant of summary judgment

de novo. See Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc).

In their complaint, the plaintiff-appellants alleged only discrimination

against non-residents of the City of Palos Verdes Estates. On appeal, however,

they try to also allege racial and sex discrimination. But because their complaint

alleges discrimination based only on non-resident status, we will not entertain this

belated new theory. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th

Cir. 2000). Rational basis review thus applies to the Equal Protection Clause claim

3 based on non-resident status. See Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580,

589–90 (9th Cir. 2008).

As a threshold matter, the record is devoid of any genuine dispute of

material fact showing that the City or Police Chief Kepley discriminated against

Spencer or Reed in its provision of services. The City provided extra police patrols

to Spencer upon request during his visit to Lunada Bay, and the City ultimately

investigated Reed’s complaint and made an arrest. The plaintiff-appellants have

presented no evidence that the police services provided to them are inferior to the

police services provided to residents. See Elliot-Park v. Manglona, 592 F.3d 1003,

1006 (9th Cir. 2010).

The record also shows that the City took significant efforts to curb the Bay

Boys’ actions. For example, the City assigned extra police patrols to Lunada Bay,

passed an ordinance barring persons from blocking access to the beach, and placed

fliers encouraging surfers to report incidents. Perhaps the City could have done

more (as the plaintiff-appellants point out), but it also has other competing public

safety issues that it must address with limited police resources.

In order to assert a claim under the Equal Protection Clause, CPR must

allege that it was treated differently as an organization. See, e.g., Ctr. for Reprod.

Law & Policy v. Bush, 304 F.3d 183, 197 (2d Cir. 2002). It has presented no such

evidence. Finally, because the claims of each named plaintiff fails, the district

4 court did not err by denying the motion to certify the class. Cf. Employers-

Teamsters Local Nos. 175 & 505 Pension Tr. Fund v. Anchor Capital Advisors,

498 F.3d 920, 924 (9th Cir. 2007).

5. Rule 37(e) Sanctions Against Blakeman: The district court erred by

imposing $68,223.13 in spoliation sanctions against Blakeman for deleting four

text messages involving another Bay Boy defendant. We review decisions

imposing discovery sanctions pursuant to Federal Rule of Civil Procedure 37(e) for

abuse of discretion. Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1408 (9th Cir.

1990). Underlying factual findings are reviewed for clear error. Id.

The district court did not clearly err by finding that Blakeman spoliated four

text messages. Nor did it abuse its discretion by ordering the sanctions award. But

it calculated the final award amount by including costs and attorneys’ fees for an

anticipated deposition that never occurred, totaling $10,589.60. Inclusion of these

costs and fees was error. See Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct.

1178, 1186 (2017) (holding that sanctions “must be compensatory rather than

punitive in nature”) (internal quotation marks and citations omitted). We reverse

and remand only for the court to reduce the sanctions award against Blakeman by

$10,589.60.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

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