NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 9 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROMAN ANDY JANIEC; et al., No. 20-55234

Plaintiffs-Appellants, D.C. No. 2:17-cv-02652-DSF-AFM v.

CITY OF GLENDORA, a municipal MEMORANDUM* corporation,

Defendant-Appellee.

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

Submitted March 5, 2021** Pasadena, California

Before: KLEINFELD, CALLAHAN, and HIGGINSON,*** Circuit Judges.

Appellants filed suit in the district court against Appellee City of Glendora

asserting a cause of action under 42 U.S.C. § 1983. Appellants alleged that the City

* 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 Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. violated their constitutional rights by selectively enforcing municipal code

violations against them and their business in retaliation for Appellants’ outspoken

criticism of the City and City officials, which resulted in Appellants losing their

business. The City filed a motion for summary judgment. The district court granted

the motion and dismissed the case.

We review de novo a district court’s grant of summary judgment. Jones v.

Royal Admin. Servs., Inc., 887 F.3d 443, 447 (9th Cir. 2018). We review the

district court’s evidentiary rulings for abuse of discretion. Domingo ex rel.

Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2002). In analyzing a motion for

summary judgment, we “must determine whether there are any genuine issues of

material fact and whether the district court correctly applied the relevant

substantive law.” Jones, 887 F.3d at 447 (citation omitted). “A district court’s

ruling on a motion for summary judgment may only be based on admissible

evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385 (9th Cir. 2010).

1. Appellants argue that there is a genuine dispute of material fact as to

whether the City faces municipal liability under Monell v. Department of Social

Services, 436 U.S. 658 (1978). We disagree.

“While local governments may be sued under § 1983, they cannot be held

vicariously liable for their employees’ constitutional violations.” Gravelet-Blondin

v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013) (citing Monell, 436 U.S. at 690,

2 694). Instead, “[u]nder Monell, municipalities are subject to damages under § 1983

in three situations: when the plaintiff was injured pursuant to an expressly adopted

official policy, a long-standing practice or custom, or the decision of a ‘final

policymaker.’” Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013)

(quoting Delia v. City of Rialto, 621 F.3d 1069, 1081–82 (9th Cir. 2010)).

Appellants do not identify an expressly adopted official policy as a source of their

alleged injuries; instead, they claim they were subjected to constitutional injury

due to both a longstanding custom or practice and the actions of the City’s final

policymakers.

(a) Appellants argue—in a single sentence, unaccompanied by record

citations or specific legal authority—that actions by the City demonstrate “a long

standing custom or practice of the City to drive [Appellants] out of business.” For

the reasons stated by the district court, Appellants’ evidence purporting to show

this “practice” is unavailing. The only admissible and relevant evidence supporting

Appellants’ contention is that the City’s Community Preservation Officer (“CPO”)

issued nineteen citations to Appellant Roman Andy Janiec between March 10,

2015, and January 29, 2016. This evidence tells us nothing about the City’s

motives—whether the City issued the citations for legitimate reasons or, as

claimed by Appellants, in order to impermissibly drive Appellants out of business.

In any event, this alleged singling out of Janiec is insufficient to establish “custom

3 or practice” Monell liability. See Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir.

1999) (“Plaintiffs cannot satisfy the requirement of a longstanding practice or

custom, because they allege to the contrary that a county official has singled them

out for unique treatment.”).

(b) Appellants separately argue that the City Manager “directed” the City’s

CPO to conduct the allegedly unconstitutional code enforcement actions. The

district court, however, ruled that the evidence purporting to show the City

Manager’s direction of the code enforcement actions was either irrelevant or

inadmissible. Because Appellants do not contend in their appeal brief that the

district court committed error in its evidentiary rulings, they have waived their

ability to challenge those rulings. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1137

n.13 (9th Cir. 2012) (holding that issues not raised in an opening appeal brief are

waived).

In sum, Appellants failed to put forth admissible evidence that, if true, would

demonstrate the City is subject to municipal liability under Monell. As a result,

there is no genuine dispute of material fact as to the City’s liability and the district

court did not err in granting summary judgment in favor of the City. See Nissan

Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102-03 (9th Cir.

2000).

The district court’s decision is AFFIRMED.

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