NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC LUND; SUSANNAH LUND, No. 20-17133

Plaintiffs-Appellants, D.C. No. 2:19-cv-02287-JAM-DMC v.

STATE OF CALIFORNIA; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted October 7, 2021 San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and FRIEDLAND, Circuit Judges.

Eric and Susannah Lund appeal the dismissal of their civil action alleging

multiple federal and state law claims against numerous defendants, including the

State of California; the California Highway Patrol (“CHP”); the City of Vacaville,

California; Solano County; the Solano County District Attorney’s Office; and

individual employees of each. We have jurisdiction under 28 U.S.C. § 1291. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. review de novo, Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001), and

may affirm on any basis supported by the record, In re Leavitt, 171 F.3d 1219, 1223

(9th Cir. 1999). We refer to the claims by the numbers assigned to them in the

Second Amended Complaint (“SAC”). We affirm in part, vacate in part, and remand

to the district court for further proceedings consistent with this decision.

1. The district court dismissed 69 of the SAC’s 73 claims as barred by the

preclusion doctrines announced in Heck v. Humphrey, 512 U.S. 477, 486–87 (1994)

and Yount v. City of Sacramento, 183 P.3d 471, 484 (Cal. 2008). Defendants bore

the burden to demonstrate the applicability of Heck or Yount to each claim for which

they sought dismissal on that ground. See Washington v. L.A. Cnty. Sheriff’s Dep’t,

833 F.3d 1048, 1056 n.5 (9th Cir. 2016). Rather than addressing the claims

individually, defendants largely took a shotgun approach, seeking a general

dismissal by arguing the SAC’s allegations as a whole are intertwined with the

investigation, arrest, prosecution, and conviction of Mr. Lund. In doing so, they

failed to carry their burden, and it was error to dismiss all claims relating to events

pre-dating Mr. Lund’s conviction on a general finding that the SAC’s “allegations

are inextricably linked to Mr. Lund’s conviction.” We decline to examine each claim

individually for the first time on appeal and instead discuss only those claims

necessary to address the parties’ legal arguments and provide guidance to the district

court on remand.

2 20-17133 Under Heck, a 42 U.S.C. § 1983 claim must be dismissed if “a judgment in

favor of the plaintiff would necessarily imply the invalidity of his conviction or

sentence,” unless the conviction or sentence has already been invalidated. Heck, 512

U.S. at 487. Yount applies the same rule to claims under California state law. See

183 P.3d at 484. Thus, Heck and Yount bar a claim if it would negate an element of

the offense or relies on facts inconsistent with the plaintiff’s extant conviction. See

Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (“[I]f a criminal conviction

arising out of the same facts stands and is fundamentally inconsistent with the

unlawful behavior for which section 1983 damages are sought, the 1983 action must

be dismissed.”).

Contrary to the Lunds’ argument, § 1983 claims predicated on Fourth

Amendment violations are not categorically exempt from Heck preclusion. Szajer

v. City of Los Angeles, 632 F.3d 607, 611 (9th Cir. 2011) (“Although footnote seven

[of Heck] left open the question of the applicability of Heck to Fourth Amendment

claims, this Court has since answered that question affirmatively.”). For example,

because Claims 1 and 2 attack the probable cause basis for the search warrant that

uncovered the child pornography for which Mr. Lund was convicted, the district

court properly dismissed those claims as Heck-barred. See Whitaker v. Garcetti, 486

F.3d 572, 583–84 (9th Cir. 2007). Dismissal of the parallel state law claims—

Claims 3, 4, and 5—as Yount-barred was proper for the same reason. See Yount, 183

3 20-17133 P.3d at 484 (finding no reason to distinguish between federal and state law claims).

Additionally, the Lunds do not challenge the dismissal of Claims 37, 38, and 43 as

Heck-barred. However, the dismissal of any Heck/Yount-barred claims should have

been without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th

Cir. 1995). Therefore, we affirm the dismissal of claims 1–5, 37, 38, and 43 but

remand to the district court with instructions to amend the judgment to reflect that

the dismissal of these claims is without prejudice to refiling in the event Mr. Lund’s

conviction is invalidated.

Conversely, Heck does not automatically bar a claim simply because the claim

relates to events that pre-date Mr. Lund’s conviction; rather, to trigger the

Heck/Yount bar, the claim must be fundamentally inconsistent with Mr. Lund’s

conviction. See Smithart, 79 F.3d at 952. For example, Claim 45 alleges a Fourth

Amendment violation resulting from the presence of third parties during the

execution of a subsequent search warrant for the Lunds’ home following Mr. Lund’s

arrest. A claim asserting that the presence of third parties during the search

implicated Mr. Lund’s Fourth Amendment rights does not, on its face, impugn the

probable cause for the search or otherwise rely on facts inconsistent with his

conviction. See Wilson v. Layne, 526 U.S. 603, 614 n.2 (1999). At oral argument,

counsel for the CHP defendants effectively conceded that some claims, such as

Claim 45, might not imply the invalidity of Mr. Lund’s conviction as pled but argued

4 20-17133 the claims fail to state a cognizable theory for relief on the merits. We leave it to the

defendants to argue specifically and the district court to determine in the first

instance whether each individual claim necessarily implies the invalidity of Mr.

Lund’s conviction or warrants dismissal on other grounds. Thus, we vacate the

dismissal of Claims 6–35, 39–42, 44–59, 65–67, and 69–73 and remand for further

proceedings consistent with this decision.

2. The Lunds next argue that the district court erred by concluding that

Claims 62 and 64 were barred by California Government Code section 821.6. We

agree. In Garmon v. County of Los Angeles, we predicted that “the California

Supreme Court would adhere to [its holding that section 826.1 is confined to

malicious prosecution actions] even though California Courts of Appeal have

strayed from it.” 828 F.3d 837, 847 (9th Cir. 2016). Until the California Supreme

Court holds otherwise, we are bound by Garmon’s interpretation of California law.

See FDIC v. McSweeney, 976 F.2d 532, 535 (9th Cir. 1992) (“[W]e are bound by

our prior decisions interpreting state as well as federal law in the absence of

intervening controlling authority.”). Claims 62 and 64 regard an allegedly

defamatory post on the Solano County District Attorney’s Facebook page, and

neither asserts a claim for malicious prosecution. Accordingly, it was error to

dismiss Claims 62 and 64 under California Government Code section 821.6. See

Garmon, 828 F.3d at 847.

5 20-17133 3. We need not determine whether the district court erred by applying

absolute immunity to Claim 63 because Claim 63 fails to state a cognizable claim

for relief. To state a defamation claim under § 1983, a plaintiff must allege “injury

to [the] plaintiff’s reputation from defamation accompanied by an allegation of

injury to a recognizable property or liberty interest.” Crowe v. County of San Diego,

608 F.3d 406, 444 (9th Cir. 2010). The SAC does not allege the requisite

constitutional injury to support this type of “defamation plus” claim and does not

plead a viable § 1983 claim predicated on a Fourteenth Amendment or Eighth

Amendment violation. See id.; Thornton v. City of St. Helens, 425 F.3d 1158, 1167

(9th Cir. 2005) (“An equal protection claim will not lie by conflating all persons not

injured into a preferred class receiving better treatment than the plaintiff.” (internal

quotation marks and citation omitted)); Oltarzewski v. Ruggiero, 830 F.2d 136, 139

(9th Cir. 1987) (acknowledging verbal harassment generally is not sufficient to state

a constitutional deprivation). Therefore, we affirm the dismissal of Claim 63 with

prejudice.

4. In their reply brief, the Lunds concede that the district court properly

dismissed Claims 36 and 61 with prejudice. They also concede that the district court

properly dismissed Claim 60 with prejudice to the extent it is based on the

prosecutor’s introduction of evidence at trial. It is apparent from the face of the SAC

that absolute immunity shields in full the prosecutorial acts forming the basis of

6 20-17133 Claim 60. See Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009). Therefore, we

affirm the dismissal of Claims 36, 60, and 61 with prejudice.

5. Because we vacate the dismissal of several federal claims and remand

for further proceedings, we vacate the district court’s dismissal of Claim 68 against

defendants Hai Luc and Wanona Ireland, in their individual capacities.1 In the event

the district court dismisses the remaining federal claims on remand, the court again

may determine whether to decline to exercise supplemental jurisdiction over Claim

68 and any other remaining state law claims. See 28 U.S.C. § 1367(c)(3); Ove v.

Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (district court may decline to exercise

supplemental jurisdiction over state law claims if all claims over which it has

original jurisdiction have been dismissed).

In conclusion, we:

• Affirm the dismissal of Claims 36, 60, 61, and 63 with prejudice;

• Affirm the dismissal of Claims 1–5, 37, 38, and 43 and remand to the district court with instructions to amend the judgment to reflect that the dismissal of these claims is without prejudice to refiling in the event Mr. Lund’s conviction is invalidated; and

• Vacate the dismissal of Claims 6–35, 39–42, 44–59, 62, and 64–73 and remand for further proceedings consistent with this decision.2

1 The Lunds do not challenge the dismissal of Claim 68 against CHP, the State, or Luc and Ireland in their official capacities. 2 The Lunds concede that the Eleventh Amendment bars all claims against CHP, Warren Stanely in his official capacity, and the State on claims brought against CHP. See Sato v. Orange Cnty. Dep’t of Educ., 861 F.3d 923, 928 (9th Cir. 2017).

7 20-17133 The Lunds’ motion for judicial notice (Docket Entry No. 33) is denied as

unnecessary.

AFFIRMED in part, VACATED in part, and REMANDED. The parties

will bear their own costs on appeal.

8 20-17133