NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 23 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ONOME ONOKOHWOMO, an individual, No. 21-55311

Plaintiff-Appellant, D.C. No. 2:20-cv-00261-CJC-SK v.

STERLING JEWELERS, INC., DBA Kay MEMORANDUM* Jewelers, a Delaware corporation; ARNULFO DIAZ; DOES, 2 through 20, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted March 7, 2022 Pasadena, California

Before: BERZON and FRIEDLAND, Circuit Judges, and KORMAN,** District Judge.

Partial Concurrence and Partial Dissent by Judge KORMAN.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Onome Onokohwomo appeals the district court’s grant of summary

judgment in favor of Defendants on his claims of racial discrimination under the

California Unruh Act, defamation, and intentional infliction of emotional distress.

We affirm in part, reverse in part, and remand for further proceedings.

1. We affirm the dismissal of Onokohwomo’s claim that he was denied

access to the interior of the Kay Jewelers store in violation of the Unruh Act.

Onokohwomo provided no evidence that other customers were served inside the

store. Defendants provided evidence that, given the store’s layout, customers are

ordinarily served outside the store. Onokohwomo has not established a genuine

dispute of material fact concerning whether he was excluded from the store for

discriminatory reasons.

2. We reverse the district court’s grant of summary judgment with respect to

Onokohwomo’s claim that he was denied the chance to try on diamond chain

necklaces in violation of the Unruh Act.

i. The evidence related to whether the store carried diamond chain necklaces

is limited to verbal assertions. Onokohwomo stated, more than once, that he

observed diamond chain necklaces in the store’s display cases; two store

employees stated that the store did not carry such necklaces. The district court

erred in granting summary judgment to Defendants on the ground that the store did

not carry diamond chain necklaces, as so ruling necessarily entailed a credibility

2 assessment inappropriate on summary judgment. See, e.g., Munden v. Stewart

Title Guar. Co., 8 F.4th 1040, 1044 (9th Cir. 2021).

ii. Onokohwomo has created a genuine dispute over whether he was denied

the chance to try on diamond chain necklaces on account of his race. The record

contains evidence that Diaz, a store employee: (1) refused to show Onokohwomo

the diamond chain necklaces Onokohwomo saw in the display cases; (2) falsely

claimed that Onokohwomo met up with another Black man at the escalators after

the alleged theft; (3) falsely described Onokohwomo as 6’1 or 6’2 even though

Onokohwomo is actually 5’7, three inches shorter than Diaz; and (4) used

stereotypically Black vernacular during their interactions, as if Diaz were “trying

to act black” or “talk like a hip-hop guy.” In light of this evidence, a jury could

reasonably infer that Diaz’s refusal to show Onokohwomo the chains was racially

motivated. See, e.g., Lindsey v. SLT L.A., LLC, 447 F.3d 1138, 1153 (9th Cir.

2006).

3. We affirm the dismissal of Onokohwomo’s defamation claims regarding

statements made to: (1) the friends and family members of Kay Jewelers’ store

employees, (2) Kay Jewelers’ internal risk management team, and (3) a group of

affiliated jewelry stores in Southern California.

In California, a defamatory statement that does not refer to the plaintiff by

name sufficiently identifies the plaintiff if it is capable of being understood as

3 referring to the plaintiff and there is evidence, direct or circumstantial, that the

statement was “so understood by a third party.” SDV/ACCI, Inc. v. AT&T Corp.,

522 F.3d 955, 959–60 (2008); Dickinson v. Cosby, 37 Cal. App. 5th 1138, 1162–63

(2019). Contrary to Onokohwomo’s assertion, this test applies even if the

ambiguous statement refers to only one person, as opposed to a group or class of

persons. See, e.g., De Witt v. Wright, 57 Cal. 576, 577–78 (1881).

Here, none of the three categories of statements outlined above referred to

Onokohwomo by name. The statements made to the friends and family members

of store employees did not provide a physical description of Onokohwomo, or any

other information that might have reasonably identified him. So Onokohwomo has

not adduced sufficient evidence to infer that the friends and family members of

store employee identified him as the subject of the statements.

The statements made to Kay Jewelers’ internal risk management team and

the group of affiliated stores did provide a brief description of Onokohwomo. And

Onokohwomo has achieved some level of celebrity as an Afrobeats musical artist.

But, on the undisputed record, the store employees involved in the incident and the

police officers who arrived at the scene and arrested Onokohwomo did not know of

that celebrity. Onokohwomo provided no evidence that the internal risk

management team and the employees of the group of affiliated stores knew of his

4 celebrity status or otherwise would have been able to identify him based on his

physical description alone.

Onokohwomo contends that because Defendants’ statements included details

regarding the date and location of the alleged theft, his identity could have been

ascertained if the recipients had looked up the police report. We need not decide

whether, under California law, the availability of extrinsic information that post-

dates an allegedly defamatory statement can transform an ambiguous statement

into one that identifies the plaintiff. Even if it can, Onokohwomo has not adduced

sufficient direct or circumstantial evidence to suggest that the recipients of

Defendants’ statements took steps to ascertain his identity, by consulting the police

report or otherwise.

4. We reverse the dismissal of Onokohwomo’s defamation claim regarding

statements made to an employee of Kevin Jewelers, an unaffiliated jewelry store in

the Montebello Town Center Mall.

The record establishes that Fern, a Kay Jewelers store manager, spoke to an

employee of Kevin Jewelers about the incident the day after the alleged theft, and

the Kevin Jewelers employee told Fern “that the plaintiff did go to her store also.”

The record also contains an internal Kevin Jewelers email. The email describes a

young, mid-20s Black man with a thin build who was accompanied by a young girl

and a baby. It explains that the man visited Kevin Jewelers twice on the day of the

5 alleged theft and includes details about the alleged theft that could not have been

directly perceived by a Kevin Jewelers employee, such as a description of the

merchandise allegedly stolen as well as details about how and when the alleged

theft occurred. Although the email incorrectly uses female pronouns to describe

the Kay Jewelers associate who served Onokohwomo, it accurately summarizes

Onokohwomo’s appearance and movements on the day of the alleged theft.1

There is no direct evidence as to what Fern said to the Kevin Jewelers

employee during their conversation, but a plaintiff bringing a defamation claim

need not specify the precise words a defendant used. Okun v. Superior Court,

29 Cal. 3d 442, 458 (1981). Drawing all reasonable inferences in Onokohwomo’s

favor, as we must at the summary judgment stage of review, Lopez v. Catalina

Channel Express, Inc., 974 F.3d 1030, 1033 (9th Cir. 2020), we conclude the

record contains sufficient evidence for a jury to infer that Fern described the

alleged theft to the Kevin Jewelers employee, and that the employee had sufficient

extrinsic information about Onokohwomo to determine that the alleged thief and

the person who had been seen twice at Kevin Jewelers were the same individual.

1 Our dissenting colleague characterizes the Kevin Jewelers email as containing information that “would have been common knowledge at the mall, if not elsewhere.” Dissent at 5. There is no basis in the record to conclude that the specific details included in the email—such as a description of the merchandise allegedly stolen and how the alleged theft occurred—were common knowledge, at the mall or elsewhere.

6 These inferences, if made, could suffice to make out a claim that Fern

defamed Onokohwomo. Peterson v. Rasmussen, 47 Cal. App. 694, 698 (1920).

5. We affirm the dismissal of Onokohwomo’s defamation claim regarding

statements made to mall security at the Montebello Town Center Mall.

The district court dismissed this claim on the ground that the statements to

mall security were privileged under California Civil Code section 47(b). The

section 47(b) privilege is aimed at communications made to government officials

and does not cover statements made to private parties unless: (1) the statements

were directed at preparing for, assisting, or eliciting government action, and (2) the

statements bear a “necessary or useful” relationship to the government action,

above and beyond merely being “related in some way” to the government action.

Argentieri v. Zuckerberg, 8 Cal. App. 5th 768, 785–86 (2017); Hagberg v. Cal.

Fed. Bank, 32 Cal. 4th 350, 360, 362 (2004); Chabak v. Monroy, 154 Cal. App. 4th

1502, 1506–08 (2007). The focus of this inquiry is on the “aim of the

communication” at the time it was made. Hagberg, 32 Cal. 4th at 368. The

burden falls on the defendant to prove that an allegedly defamatory statement “was

made on a privileged occasion.” Taus v. Loftus, 40 Cal. 4th 683, 720–21 (2007).

The evidence concerning Defendants’ motivation for contacting mall

security came from store manager Jennifer Ropke, who coordinated the store’s

outreach to both law enforcement authorities and mall security. Ropke indicated

7 that, although store policy requires employees to contact law enforcement

authorities directly, mall security is contacted too so that mall security can “see if

they can find them. If they – let’s say someone ran, [mall security] can go and find

them, run after them, I guess.” So there is evidence that mall security is contacted

to locate and detain the suspect. California Penal Code section 490.5(f)(1)

authorizes a merchant to “detain a person for a reasonable time” and “in a

reasonable manner” when the merchant “has probable cause to believe the person

to be detained is attempting to unlawfully take . . . merchandise from the

merchant’s premises.” The provision covers the actions of private security. See,

e.g., Johnson v. Ralphs Grocery Co., 204 Cal. App. 4th 1097, 1108 (2012).

Ropke’s testimony is therefore sufficient to establish that Defendants’

statements to mall security were made for the purpose of assisting law enforcement

authorities in investigating an alleged theft by finding and detaining the suspect,

who would then be turned over to the police, and the statements were meant to

play a “necessary or useful” role in that investigation. Defendants have thus met

their burden to prove that the statements to mall security are privileged under

section 47(b).

Section 47(b) was recently amended to provide that false reports of criminal

activity are not absolutely privileged. No part of the California Code “is

retroactive, unless expressly so declared.” Cal. Civil Code § 3; see also

8 Evangelatos v. Superior Court, 44 Cal.3d 1188, 1208 (1988). Here, the amended

statutory language does not evidence an intent that the amendment apply

retroactively. The revisions to section 47(b) therefore do not undermine our

conclusion that, in this case, Defendants’ statements to mall security were

privileged.

6. The self-publication doctrine cannot revive Onokohwomo’s four

dismissed defamation claims. In California, the “originator of [a] defamatory

statement [is] liable for damages caused by the disclosure of the contents of the

defamatory statement by the person defamed where such disclosure is the natural

and probable consequence of the originator’s actions.” McKinney v. County of

Santa Clara, 110 Cal. App. 3d 787, 796 (1980). Here, any pressure Onokohwomo

faced to respond to the theft accusations stemmed from the absolutely privileged

statements Defendants made to law enforcement authorities. Holding Defendants

liable for Onokohwomo’s self-publication of the defamatory statements,

foreseeable only in light of the downstream effects of Defendants’ privileged

communications to the police, would undermine the purpose of the section 47(b)

privilege, which is to promote open communication between law enforcement

authorities and potential witnesses to crime. See Hagberg, 32 Cal. 4th at 360;

Flatley v. Mauro, 39 Cal. 4th 299, 325 (2006); cf. Tilkey v. Allstate Ins. Co.,

56 Cal. App. 5th 521, 542–43 (2020).

9 7. We affirm the dismissal of Onokohwomo’s intentional infliction of

emotional distress claim. Onokohwomo cannot recover for the emotional distress

he suffered as a consequence of Defendants’ privileged communications to law

enforcement authorities. The evidence indicates that the lion’s share of

Onokohwomo’s distress stems from those privileged communications. He has not

created a genuine dispute that the emotional distress he suffered from the racially

motivated denial of services, on its own, qualifies as “severe or extreme.” Hughes

v. Pair, 46 Cal. 4th 1035, 1050–51 (2009).

8. In light of the foregoing analysis, we vacate the district court’s award of

costs to Defendants. Each party shall bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

10

FILED

JUN 23 2022

Onome Onokohwomo v. Sterling Jewelers, Inc., et al., 21-55311

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

KORMAN, District Judge, concurring in part and dissenting in part:

I concur in the memorandum disposition to the extent it affirms the order of

the district court granting the defendants’ motion for summary judgment. I dissent

from the holding of the majority vacating the grant of summary judgment on one

Unruh Act claim and one defamation claim because, in the majority’s view, the

record created triable issues regarding whether the plaintiff (1) “was denied the

chance to try on diamond chain necklaces [on account of his race] in violation of

the Unruh Act,” and (2) was defamed when one of Kay Jewelers’ employees

related the allegedly false claim that the plaintiff stole a gold necklace to an

employee at Kevin Jewelers.

1. The evidence from which the majority draws the inference of racial

discrimination is “that Diaz, a store employee: (1) refused to show Onokohwomo

the diamond chain necklaces Onokohwomo saw in the display cases; (2) falsely

claimed that Onokohwomo met up with another Black man at the escalators after

the alleged theft; (3) falsely described Onokohwomo as 6’1 or 6’2 even though

Onokohwomo is actually 5’7, three inches shorter than Diaz; and (4) used

stereotypically Black vernacular during their interactions, as if Diaz were ‘trying to

act black’ or ‘talk like a hip-hop guy.’” “In light of this evidence,” the majority

1 holds that “a jury could reasonably infer that Diaz’s refusal to show Onokohwomo

the chains was racially motivated.”

I do not understand, nor does the majority explain, how the inference of

discrimination follows from the fact that Diaz falsely claimed that Onokohwomo

met up with another black man after the alleged theft or that Diaz falsely described

Onokohwomo’s height. Significantly, in his deposition questioning of Diaz,

Onokohwomo’s counsel did not suggest that these alleged false statements

supported an inference of racial animus with respect to Diaz’s denial of service.

Rather, Onokohwomo’s counsel implied that these statements were made to

provide support for Diaz’s claim that Onokohwomo stole the gold necklace when

in fact Diaz had done so. Onokohwomo’s counsel posed the following question

after asking Diaz whether he stole the chain: “Isn’t it true that you saw a black man

with dreadlocks who you thought was a six foot one or two, scary, big black guy,

this was your opportunity to steal from the store and pin it on somebody else?”

Diaz responded that he did not remember.

Nor does the evidence that Diaz used “stereotypically Black vernacular”

during their interaction create a genuine dispute that Diaz engaged in a racially

motivated denial of service. Onokohwomo himself testified at his deposition that

Diaz “was trying to be a good customer service guy and sell me something I didn’t

want,” specifically, a gold necklace on which Kay Jewelers could put diamonds

2 because (according to Diaz) Kay Jewelers did not carry men’s diamond necklaces.

Indeed, Onokohwomo understood that “[Diaz] tried to make me feel comfortable

by talk[ing] like a hip-hop guy.” Onokohwomo testified that Diaz “used words,

like ‘Yo, I got you homie. I know what you want. I know what you want.’” While

Onokohwomo subsequently described those efforts as “more for mockery than

make comfortable type of situation,” he continued to acknowledge that Diaz was

“trying to get [me] to buy something,” albeit “in the wrong way.”

Moreover, Diaz not only showed Onokohwomo a $6,999 “10k Yellow Gold

10mm Miami Cuban Link chain,” but placed it around Onokohwomo’s neck, asked

if he liked it, and invited him to see how he looked in the mirror. Thus, even if the

manner in which Diaz allegedly addressed Onokohwomo may have been

inappropriate, when viewed in light of the complete record, that fact simply does

not support the claim that Diaz’s refusal to show Onokohwomo diamond chains

instead of a gold chain on which Kay Jewelers offered to inset diamonds was a

racially motivated denial of service.

If anything, the fact that Diaz was trying to persuade Onokohwomo to

purchase such a gold chain supports Diaz’s claim that he did not show

Onokohwomo a diamond chain because Kay Jewelers did not carry any men’s

diamond necklaces. Indeed, although Onokohwomo claimed to have seen diamond

3 necklaces, his deposition testimony suggests that he had seen only women’s

diamond necklaces and loose diamonds.

2. I am also unable to concur in the reversal of summary judgment on

Onokohwomo’s defamation claim based on the majority’s conclusion that “the

record contains sufficient evidence for a jury to infer that [a manager at Kay

Jewelers named] Fern described the alleged theft to the Kevin Jewelers employee,

and that the employee had sufficient extrinsic information about Onokohwomo to

determine that the alleged thief and the person who had been seen twice at Kevin

Jewelers were the same individual.” The memorandum disposition relies on record

evidence that “Fern, a Kay Jewelers store manager, spoke to an employee of Kevin

Jewelers about the incident the day after the alleged theft, and the Kevin Jewelers

employee told Fern ‘that the plaintiff did go to her store also.’”

When viewed in context, this statement does not provide a basis for

concluding that Fern was the source of any information that allowed the Kevin

Jewelers employee to infer that the alleged thief was the individual who had twice

been seen at Kevin Jewelers that day. Indeed, the email that the memorandum

disposition refers to was written by an employee of Kevin Jewelers the day after

the incident at issue. Significantly, it begins by describing events that occurred at

Kevin Jewelers before Onokohwomo went to Kay Jewelers and described

Onokohwomo’s conduct at Kevin Jewelers (without naming him) which led Kevin

4 Jewelers to become suspicious that Onokohwomo would steal a Rolex. In the

pertinent part, the email states that five minutes after Onokohwomo subsequently

returned and then walked out of Kevin Jewelers, “we see police and security get

him and handcuff him and took him.” The email then speculated that “apparently”

prior to returning to Kevin Jewelers, Onokohwomo went to Kay Jewelers and

asked to see a chain. The email then goes on to describe what at that point would

have been common knowledge at the mall, if not elsewhere: the incident at Kay

Jewelers. By the time the email was sent, the writer had witnessed Onokohwomo

being arrested, Kay Jewelers had notified mall security and loss prevention of the

alleged theft with a description of Onokohwomo, and Onokohwomo had published

a video on Instagram (within a few hours of the incident) in which he clearly

suggested that he was framed of theft. Moreover, Onokohwomo testified that many

people had taken pictures and videos of the incident on their cell phones.

Notably, the email does not identify anyone at Kay Jewelers as the source of

the information. The memorandum disposition addresses this gap by observing that

“a plaintiff bringing a defamation claim need not specify the precise words a

defendant used.” But the issue is not the precise words that were used, but whether

any defamatory statement was made.

I add these brief words in conclusion. I would have been prepared to agree

that there was a triable issue as to whether Diaz stole the gold necklace and falsely

5 accused Onokohwomo of doing so. Nevertheless, the complaint did not allege a

cause of action for causing Onokohwomo to be falsely arrested, presumably

because such a cause of action was not then available under California law. See

Hagberg v. Cal. Fed. Bank, 81 P.3d 244, 248–50 (Cal. 2004), superseded by

amendment to California Civil Code § 47(b), effective Jan. 1, 2021. Instead,

Onokohwomo alleged a collection of meritless defamation and emotional tort

claims accompanied by an implausible claim that Diaz declined to show him a

diamond necklace because of his race even though Onokohwomo conceded that

Diaz was actually trying to sell him other expensive, if not more expensive,

jewelry. I respectfully dissent from the majority’s decision to allow Onokohwomo

to proceed to trial on one of those meritless defamation claims and the implausible

Unruh Act discrimination claim.

6