NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER LULL; AUTOTEK, INC., 

Plaintiffs-Appellants, 

 v. 

COUNTY OF SACRAMENTO; et al., 

Defendants-Appellees.

No. 20-16599 

D.C. No. 

2:16-cv-01093-KJM-CKD 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, Chief District Judge, Presiding

Submitted January 14, 2022**

Pasadena, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,*** District 

Judge.

Plaintiffs Christopher Lull and his smog-check company, Autotek, brought 

claims for damages under 42 U.S.C. § 1983 alleging that the County of 

* 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 Robert S. Lasnik, United States District Judge for the 

Western District of Washington, sitting by designation.

FILED

JAN 19 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Sacramento, individual County Defendants, and the Sacramento Municipal Utility 

Department (SMUD) violated their First Amendment, Fourth Amendment, and due 

process rights when Defendants caused electrical service to be disconnected at 

Plaintiffs’ property. Plaintiffs appeal the district court’s grant of summary 

judgment to Defendants on the First Amendment claims, dismissal of the due 

process and Fourth Amendment claims, and denial of leave to amend.

1 We affirm. 

1. The district court correctly held that Plaintiffs had presented no evidence 

that Supervising Deputy County Counsel June Powells-Mays had any intent to 

interfere with Plaintiffs’ First Amendment rights or that Code Enforcement

Manager Tammy Derby did anything that could amount to retaliation. See 

Mendocino Env’t Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999).

As for Chief Building Official Brian Washko and Violations Supervisor Robin 

Rasmussen, the district court held that Plaintiffs had presented sufficient evidence 

to create a triable issue of fact on their retaliatory intent. But the court properly 

concluded that Washko and Rasmussen were entitled to qualified immunity in light 

1 Defendants’ motion to dismiss County-related parties who are not participants in 

the appeal, which Plaintiffs have not opposed, is GRANTED. The County 

Planning Department, the County Building Department, County Counsel, the 

County Community Development Department, the County Board of Supervisors, 

the County Clerk of the Board, the County Sheriff’s Department, the County 

Revenue and Recovery Department, Lori Moss, Leighann Moffitt, Bob Ivie, John 

Muzinich, Scott Purvis, Wayne Eastman, Paul Munoz, Cyndi Lee, Florence Evans, 

Russ Williams, and Jared Wickliff are hereby dismissed from this appeal.
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of Plaintiffs’ failure to point to any clearly established law—or, to offer any 

response at all—after Defendants asserted qualified immunity. On appeal, 

Plaintiffs now argue that “an individual ha[s] a clearly established right to be free 

of intentional retaliation by government officials based upon that individual’s 

constitutionally protected expression.” Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 

1310, 1319 (9th Cir. 1989). But Plaintiffs offer no explanation for their failure to 

make this argument in the district court or reason that we should excuse their 

forfeiture on appeal. Accordingly, we adhere to our general rule that issues not 

raised in the district court “will not be considered for the first time on appeal.” In 

re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014).

The district court also correctly concluded that the County itself could not be 

held liable because Plaintiffs had shown no evidence of an unconstitutional County 

policy or practice. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)

(“Congress did not intend municipalities to be held liable unless action pursuant to 

official municipal policy of some nature caused a constitutional tort.”). Indeed, 

Plaintiffs conceded in the district court that the County Defendants’ challenged 

actions “deviated from their typical procedures.” We therefore affirm the district 

court’s grant of summary judgment to the County Defendants on the First 

Amendment retaliation claim.

2. The district court correctly held that Plaintiffs had a vested interest in 
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continued electrical services, but that they were not denied due process in this case. 

See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978). 

Plaintiffs were entitled to “notice reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency of the action [to 

disconnect their electricity] and afford them an opportunity to present their 

objections.” Id. at 13 (quoting Mullane v. Cent. Hanover Tr. Co., 339 U.S. 306, 

314 (1950)). It is undisputed that Lull received many notices of his code 

violations, and as early as January 2014 (nearly a year before the disconnection) he 

received notice that his electrical power could be disconnected if he failed to bring 

the property into compliance within 30 days. He received letters again on 

September 16 and 26 warning him that his non-compliance could result in the 

disconnection of electrical service. He received stop-work orders on December 8, 

10, and 22, but he did not stop work. He received a final notice and order of 

disconnection of electricity on December 23, 2014, and his electricity was 

disconnected on December 24, 2014. 

Plaintiffs’ primary argument on appeal is that they were entitled to a predeprivation hearing, but they did not argue that in the district court. Instead, 

Plaintiffs’ only argument in opposition to SMUD’s motion for summary judgment 

was that SMUD had defied its own regulations by failing to provide seven days’ 

written notice before disconnecting their electricity. SMUD’s Rule and Regulation 
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11 does require seven days’ notice in general, but it also provides that “[i]f, in 

SMUD’s judgment, operation of customer’s equipment constitutes a dangerous 

condition, SMUD may discontinue service without notice.” The district court 

correctly concluded that SMUD complied with Rule 11 when it disconnected 

Plaintiffs’ electricity in reliance on the County employees’ determination that there 

was a dangerous condition at the property. Because Plaintiffs offered the district 

court no other evidence or argument that SMUD had deprived them of due process,

we decline to address their various new arguments on appeal. See In re Mortg., 

754 F.3d at 780.

3. Plaintiffs’ argument that SMUD’s disconnection of their electricity was a 

warrantless seizure under the Fourth Amendment is unsupported. Plaintiffs cite 

several cases indicating that, when state law prohibits the termination of utility 

services without good cause, there arises a “legitimate claim of entitlement” in the 

continuation of those services under the Due Process Clause. See Memphis Light, 

436 U.S. at 11-12. But that does not mean that termination of utility services for 

good cause under state law is a Fourth Amendment seizure. 

As an initial matter, it is not clear whether the property interest in continued 

electricity created by state law is the kind of property that can be “seized” under 

the Fourth Amendment. “A ‘seizure’ of property occurs when there is some 

meaningful interference with an individual’s possessory interests in that property.” 
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United States v. Jacobsen, 466 U.S. 109, 113 (1984). We have explained that “[a] 

possessory interest involves ‘[t]he fact of having or holding property in one’s 

power; the exercise of dominion over property.’” United States v. JP Morgan 

Chase Bank Acct., 835 F.3d 1159, 1165-66 (9th Cir. 2016) (quoting Possession, 

Black’s Law Dictionary (10th ed. 2014)). Plaintiffs have not explained why 

disconnecting their electricity meaningfully interferes with their having, holding, 

or exercising dominion over their property. 

Any property interest in continued electricity that might be cognizable under 

the Fourth Amendment extends only as far as state law provides. Because the 

disconnection of Plaintiffs’ electricity comported with state law, there was no

violation of a protected property interest that could count as a Fourth Amendment 

seizure. As explained above, SMUD complied with its own regulations when it 

relied on the County employees’ instructions to disconnect Plaintiffs’ electricity 

because of a dangerous condition. And the Sacramento County Building Code

authorizes building officials, such as the County Defendants, to order the 

disconnection of utilities not only in case of emergency, as Plaintiffs contend, but 

also when “[t]he building owner/occupant knowingly fails to comply with a notice 

or order.” Sacramento, Cal., Code ch. 16.02.080 § 112.3. Plaintiffs cite various 

other state and local codes authorizing utility disconnection in case of emergency

or to abate a public nuisance, but they offer no reason to conclude that those 
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provisions define the only situations in which electricity can be disconnected. 

Because Plaintiffs’ electricity was disconnected for good cause under state law, 

they were not deprived of any state-protected property interest at all, even if an 

electricity shutoff could be considered an unlawful seizure under the Fourth 

Amendment on some other set of facts. We therefore affirm the district court’s 

dismissal of the Fourth Amendment claim. 

4. Plaintiffs’ argument that the district court erred in abstaining from certain 

claims, and then erred in denying leave to amend to add them back, is inadequately 

presented on appeal. See Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 

626 F.3d 483, 487 (9th Cir. 2010) (“[W]e won’t ‘consider matters on appeal that 

are not specifically and distinctly argued in appellant’s opening brief.’” (quoting 

Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986))). Plaintiffs’ 

opening brief does not describe the claims the district court abstained from, nor 

does it offer any reason for reversal beyond “bare assertions with no supporting 

argument.” Id. (cleaned up). We decline to address this undeveloped argument. 

AFFIRMED.