NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 4 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AKSHAR GLOBAL INVESTMENTS No. 22-55394 CORP., a California corporation, D.C. No. Plaintiff, 2:18-cv-04541-MWF-PVC

and

MEMORANDUM*

AMITKUMAR SHAH,

Plaintiff-Appellant,

v.

CITY OF LOS ANGELES, a municipal corporation; DOES, 1-10 inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted March 10, 2023 Pasadena, California

Before: KLEINFELD, WATFORD, and COLLINS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Amitkumar Shah appeals from the district court’s order granting summary

judgment to the City of Los Angeles on his Fourth Amendment claim brought

under 42 U.S.C. § 1983 and on his writ of mandate claim under California Code of

Civil Procedure § 1094.5. We affirm the district court’s decision on the § 1983

claim because that claim is beyond the scope of our prior mandate in this case.

Regarding the writ of mandate claim, we vacate the judgment and remand for the

district court to dismiss this claim without prejudice.

1. In the prior appeal in this case, we affirmed the dismissal of Shah’s

claims against the City, including his Fourth Amendment claims, with one

exception: We authorized Shah on remand to amend his allegation that the City

violated the Supreme Court’s decision in City of Los Angeles v. Patel, 576 U.S.

409 (2015), by enforcing a conditional use permit (CUP) that authorized police to

search his motel’s registration records without any precompliance review. See

Akshar Global Investments Corp. v. City of Los Angeles, 817 F. App’x 301, 304–

07 (9th Cir. 2020). Under the rule of mandate, the district court was not permitted

to take any action inconsistent with that limited remand. See Stacy v. Colvin, 825

F.3d 563, 568 (9th Cir. 2016).

Shah initially followed our mandate by amending his complaint to allege

that, on May 24, 2016, three police officers enforced the CUP by demanding that

they be permitted to inspect the motel’s registration records. But Shah and his wife

2 later deviated from this allegation by instead claiming in their depositions that, on

the day in question, up to ten officers unlawfully entered their living quarters,

announced that an undercover operation showed that the Shahs had violated rental

regulations, and then proceeded to search their records without valid consent.

Regardless of whether this non-CUP-based theory states a Fourth Amendment

violation, it is beyond the scope of the Patel claim that we remanded. The district

court lacked authority to entertain the different Fourth Amendment theory Shah

asserted since it conflicts with the scope of our mandate, which was expressly

limited to considering a claim that the search occurred pursuant to the CUP

condition. See United States v. Thrasher, 483 F.3d 977, 982 (9th Cir. 2007).

Because, in response to the City’s summary judgment motion, Shah never

asserted—much less provided evidence to support—a Patel claim based on the

CUP, Shah failed for that reason to create a triable issue of fact as to the only claim

we permitted him to assert on remand. We therefore affirm the order granting

summary judgment to the City on this alternative ground. See Richards v. County

of San Bernardino, 39 F.4th 562, 569 (9th Cir. 2022).1

1 Shah argues that under Nissan Fire & Marine Insurance Co. v. Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000), he was not required to show that his allegations fall within the scope of our mandate because that was not the basis of the City’s motion for summary judgment. But for the reasons described above, regardless of whether the City raised the issue, Shah was not permitted to pursue a claim that our prior decision foreclosed. See Stacy, 825 F.3d at 568. And if Shah

3 2. Shah’s writ of mandate claim challenged the City’s imposition and

subsequent revocation of the CUP by alleging that the City failed to follow proper

procedures and that the City based its decisions on insufficient evidence. But Shah

failed to pay for the preparation of the administrative record, as required by state

law. See Black Historical Society v. City of San Diego, 36 Cal. Rptr. 3d 378, 383–

84 (Ct. App. 2005). The district court therefore properly held that, in the absence

of the administrative record, it could not go forward with the writ claim. However,

failure to pay for the preparation of the record amounts to a failure to prosecute,

see id. at 384, which under California law warrants only dismissal without

prejudice, see Hardy v. America’s Best Home Loans, 181 Cal. Rptr. 3d 685, 691

(Ct. App. 2014). We accordingly vacate the district court’s decision with respect

to Shah’s writ of mandate claim and remand with instructions to dismiss this claim

without prejudice.

AFFIRMED in part; VACATED and REMANDED in part.

The parties shall bear their own costs.

thought that the City’s motion had overlooked the true gravamen of his claim in seeking dismissal of the entire case, then it was incumbent upon him, in opposing that motion, to assert that point. See Estate of Shapiro v. United States, 634 F.3d 1055, 1060 (9th Cir. 2011) (holding that party abandons a claim by “failing to raise it in opposition” to a “motion for complete summary judgment”). 4