NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIRO CERVANTES RAMIREZ; et al.,

Plaintiffs

- Appellants,

v. SHELLY ZIMMERMAN, San Diego Police Chief; et al., Defendants

- Appellees, and BOUDREAU, Sheriff's Sergeant; et al.,

Defendants. No. 20

- 56117
D.C. Nos. 3:17

- cv - 01230

- BAS

- AHG 3:18

- cv - 01062

- BAS

- AHG

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding Argued and Submitted October 5, 2021 Pasadena, California Before: GRABER and CHRISTEN, Circuit Judges, and SEEBORG, * * District Judge. Partial Concurrence by Judge CHRISTEN.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. 

# FILED

NOV 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Plaintiffs Jairo Cervantes, Nancy Sanchez, Madison Goodman, Brandon Steinberg, and Bryan Pease timely appeal the dismissal of their civil rights action. We affirm. 1. Plaintiffs’ theory of liability under Monell v. Dep artment o f Social Services , 436 U.S. 658 (1978), is that Chief of Police Shelle y Zimmerman, as final policymaker for the San Diego police department, ratified unconstitutional conduct by city police officers. But the record contains no evidence that Chief Zimmerman ratified a subordinate’s unconstitutional action. See Christie v. I opa , 176 F.3d 1231, 1239 (9th Cir. 1999) (“ To show ratification, a plaintiff must prove that the authorized policymakers approve a subordinate ’ s decision and the basis for it.” (internal quotation marks omitted) )

. Nor has Plaintiff ever argued

— on summary judgment or on appeal

— that Chief Zimmerman knew of a constitutional violation and actually approved of it. See Lytle v. Carl , 382 F.3d 978, 987 (9th Cir. 2004) (“ The policymaker mus t have knowledge of the constitutional violation and actually approve of it. ”) ; see also Christie , 176 F.3d at 1239 . (“[A] plaintiff must establish that there is a genuine issue of material fact regarding whether a ratification occurred.”). Plaintiffs’ Mo nell claim fails on that ground. See Isabel v. Reagan , 987 F.3d 1220, 1226 (9th Cir. 2021) (“We may affirm a district court’s judgment on any ground supported by the record, whether or not the decision of the district court relied on the same grounds or r easoning we adopt.” (quoting Atel3

Fin. Corp. v. Quaker Coal Co. , 321 F.3d 924, 926 (9th Cir. 2003) (per curiam) )). 2. Plaintiffs’ constitutional claims against the individual officers also fail because qualified immunity shields the officers. Plaintiffs forfeited their Fourth Amendment qualified immunity arguments because the opening brief makes no legal argument that qualified immunity does not apply, nor is such an argument apparent from Plaintiffs’ factual recitation

. See United States v. Graf

, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in passing and not supported by citations to the record or to case authority are generally deemed waived.”). Qualified immunity also shields the officer Defendants from any theories under the First Amendment because Plaintiffs have not cited, nor have we found, any clearly established law that is on point. See Sharp v. County of Orange , 871 F.3d 901, 909 (9th Cir. 2017 ) (holding that qualified immunity shields officer Defendants from claims arising out of their polic e work unless their conduct violated “clearly established” federal law). 3. In a footnote in its summary judgment order, the district court refused to address viewpoint discrimination at summary judgment because a prior order had denied Plaintiffs leave t o amend their complaint to add a claim for viewpoint discrimination. Plaintiffs do not challenge that denial of leave to amend. Instead, Plaintiffs argue only that the district court improperly discarded strong evidence of4

viewpoint discrimination. But the operative complaint (the Fourth Amended Complaint) nowhere articulated, n or so much as referenced, a viewpoint discrimination theory

. See Wasco Prods., Inc. v. Southwall Techs., Inc. , 435 F.3d 989, 992 (9th Cir. 2006) (holding that “summary judgment i s not a procedural second chance to flesh out inadequate pleadings” (internal quotation marks omitted)). Plaintiffs argue that viewpoint discrimination may be part of a claim under the Ralph Civil Rights Act, Cal. Civ. Code § 51.7, a claim alleged in the o perative complaint. But the district court held that the claim under the Ralph Act failed because Plaintiffs had submitted no evidence that some “physical, destructive act” beyond the “mere application of physical force” had occurred. Because Plaintiffs do not challenge that conclusion on appeal, the Ralph Act claim cannot be revived. 4. The district court dismissed other state

- law claims as well, but the opening brief does not address those claims. Further, at oral argument, Plaintiffs’ counsel clarifi ed that Plaintiffs appeal the dismissal of their claims under § 1983 that allege a violation of the First Amendment and a violation of the Fourth Amendment. Therefore, any arguments related to the other dismissed claims are either waived or forfeited. Se e Smith v. Marsh , 194 F.3d 1045, 1052 (9th Cir. 1999) (holding that arguments not raised in a party’s opening brief generally are forfeited).5

5. The district court did not abuse its discretion in denying leave to amend to add three police officers as defendants . The di strict court denied leave to amend on the grounds that Plaintiffs so moved after discovery closed and that Plaintiffs should have been aware of those officers’ roles as far back as April 2018, when Defendants listed the role assigned to each officer for th e events of May 27, 2016.
See United States v. U nited Healthcare Ins. Co. , 848 F.3d 1161, 1172 (9th Cir. 2016) ( This court “review[s] the denial of leave to amend for an abuse of discretion

. ” ).
6. T he district court did not abuse its discretion in denyin g Plaintiff Pease additional discovery after the cases were consolidated

. Although the material sought is relevant, Plaintiffs make no attempt to show how their case would be aid ed by reopening discovery. See Dichter

- Mad Fam. Partners, LLP v. United
Stat es , 709 F.3d 749, 751 (9th Cir. 2013) (per curiam) (holding that “broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant ” ( internal quotation marks omitted)).
7. Plaintiffs did not preserve their argument that the district court erred by not exercising its discretionary power under Federal Rule of Civil Procedure 37 to sanction Defendants

. See Graf , 610 F.3d at 1166 (“Arguments made in passing6

and not supported by citations to the record or to case authority are generally deemed waived

. ”). 8. Because Plaintiffs settled with the county defendants, any arguments related to the Sheriff’s Department are moot.
AFFIRMED.C

e rv ante s Ramire z v . Zimme rman , No. 20-56117 C HR ISTEN, C irc uit Judge , c onc urring in pa rt a n d c onc urring in the judgm e nt.
I c onc ur with m

y c olle a gue s’ de c ision to a ffirm the distric t c ourt’ s rulings

c onc e rning pla intiffs’ Mone ll c la im s, its de c i sion not to c onside r vie wpoint
disc rim ina tion a

t sum m a ry judgm e nt, dism issa l of pla intiffs’ sta te -la w c la im s, de nia l of le a v e to a

m e nd, de nia l of a d ditiona l disc ove ry a fte r the c a se s we re

c onsolida te d, de n i a l of sa

nc tions, a n d tha t a rgum e nts re la te d to the She riff’ s De pa rtm e nt a re m o ot. I write se pa

ra te ly be c a use I c onc l ude tha

t issue s of fa c t should ha ve pre ve nte d

e n try of sum m a ry judgm e nt on whe the r pla intiffs suffe re d
First a nd Fourth Am e ndm e n t

injurie s. The distric t c ourt c o nc l ude d tha t pla intiffs ha d

no First Am e ndm e nt right to

re m a in in the a re a

of a n unla wful a sse m

bly orde r a nd tha

t no re a sona

ble jury c ould
find tha t de fe nda nts la c ke d proba

ble c a use to a rre st pla intiffs be c a

use pla intiffs
fa ile d to dispe rse
. I disa gre e . Vie wing the fa c ts in the light m ost fa vora ble to the pla i ntiffs, que stions of fa c t re m a in re ga rding whe the r pla intiffs ha d de pa rte d from
the a re a of the unla

wful a sse m

b ly a nd we re c om

ply ing with the

orde r to dispe rse whe n the y

we re a rre ste d.
The ope ra tive dispe rsa l orde r wa s issue d a t a pproxim a te ly

4:30 p.m

. pursua nt to C a lifornia

Pe na l C ode § 726. Subse que nt a n nounc e m e nts dire c t e d pla i ntiffs to wa lk a

wa y from Tin Fish Pla

z a , “ towa rd L Stre e t e a st,” a nd the n onto



# FIL ED

NOV 3 2021
M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALSHa rbor Drive . The re c ord inc lude s e vide nc e showing the de fe nda nts’ a im wa s to ke e p two— or possibly

thre e

— fa c tions a

pa rt to a void viole nc e , a

nd tha t this wa s the re a son pla intiffs we re not a llowe d to c irc le ba c k on the side stre e ts to the ir
pa rke d c a rs. I do not que stion the le g itim a c y of the la w e n forc e m e n t obje c tive to
ste e r the groups in opposite dire c tions, but the

re c ord be fore us shows tha t offic e rs told pla intiffs to proc e e d down Ha rbor Drive , a

nd only Ha rbor Drive , but ne ve r told the m how fa r the y we re re q

uire d to go. Pla intiffs c onte n d the y wa lke d a long
Ha rbor Drive a nd a

wa y from the pla z a

a s dire c te d. The re c ord shows tha t one pla i ntiff te stifie d, “ W e ll, the y just ke pt sa

y ing ‘ ke e p wa lking,’ whic h we we re . W e didn’ t sta nd still a t a ny point.” And a

nothe r te stifie d, “ The y

sa id to ke e p on going
the w a y the y we re te lling us . . . [a

n d] I followe d dire c tions . . . [I k] e pt on going
forwa rd.” Pe rha

ps the be st e vide nc e tha

t pla intiffs c om

plie d with the orde r to dispe rse is the unc onte ste d loc a tion a nd tim e of the ir a

rre sts: a pproxim a te ly

a m ile
down Ha rbor Drive a nd ove r two hours a fte r the 4:30 p.m . dispe rsa l orde r. Public de m onstra

tions a re a n im porta n t fe a ture of our politic a l la ndsc a pe a nd
ga the rings of this sort a

re c e rta in to c ontinue . In m y vie w, a dispe rsa l orde r
spe c ify ing a

point a t w h ic h offic e rs c ould a llow pe ople to de via te from the tre k
down Ha rbor Drive would ha

ve a voide d c onside ra

ble c onfusion for

e ve ry one

— inc luding theoffic e rs on the ground— a nd m a y ha ve a voide d the se
2a rre sts a

nd follow-on litiga

tion. Inste a d, the ope n-e nde d dispe rsa l orde r e x pose d
de fe nda n ts to a lle ga tions tha

t the y c om m itte d c onstitutiona

l viola tions by a rre sting
pe ople who ha d de pa

rte d from the a re a in c om

plia nc e with the orde r to dispe rse
. Tha t sa id, in m

y vie w the distric t c o urt c orre c tly c onc l ude d tha

t qua lifie d
im m unity shie lds de fe nda

nts from lia bility for the s e c la im s. Pla intiffs a rtic ula te d

a n inte nt to a

ppe a l the distric t c ourt’ s qua lifie d im m unity ruling but offe re d only
ge ne ra l rule s of la

w a nd the a sse rtion tha

t de fe nda nts’ c onduc t

“ wa s c le a rly

ille ga l

a nd unc onstitutiona

l.” Pla intiffs a

re c o rre c t tha

t, “ in a n obvious c a se ,” we m a y find c le a rly

e sta blishe d sta

nda rds “ e v e n without a

body of re le va nt c a se la w,”
Brosse au v . Hauge n , 543 U.S. 194, 199 (2004), but the fa c ts in this c a se do not

a pproa c h tha t sta nda rd, se e , e .g. , Tay lor v . Riojas , 141 S. C t . 52, 53–54 (2020). It

wa s pla intiffs’ burde n to show c le a rly e sta blishe d la w put de fe nda

nts on notic e the i r a c tions viola

t e d pla intiffs’ rights, a

nd pla intiffs did not m

e e t this burde n. For the s e re a s ons, I a g re e with m y c olle a gue s’ de c ision to a ffirm the distric t c o urt’ s ruling on qua lifie d im

m unity

.

3