Vincent Otyang v. City and County of San Francisco; Jose Mitra

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINCENT OTYANG,
Plaintiff - Appellant,
v.
CITY AND COUNTY OF SAN
FRANCISCO; JOSE MITRA,
Defendants - Appellees.
No. 13-15639
D.C. No. 3:12-cv-00577-MEJ
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding**
Submitted July 21, 2015***
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Vincent Otyang appeals pro se from the district court’s summary judgment
in his 42 U.S.C. § 1983 action alleging First Amendment and state law violations
FILED
JUL 31 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

in connection with the enforcement of a city ordinance. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Blankenhorn v. City of Orange, 485
F.3d 463, 470 (9th Cir. 2007), and we affirm.
The district court properly granted summary judgment on Otyang’s § 1983
claim against the City and County of San Francisco because Otyang failed to raise
a genuine dispute of material fact as to whether there was a municipal policy,
custom, or practice that was the moving force behind the alleged constitutional
violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (explaining
municipal liability under § 1983). To the extent that Otyang challenges the city
ordinance requiring a permit to erect a table, the district court properly concluded
that the ordinance was a reasonable time, place, and manner restriction. See
Menotti v. City of Seattle, 409 F.3d 1113, 1129-31 (9th Cir. 2005) (setting forth the
factors for determining the constitutionality of time, place, and manner restrictions
under the First Amendment).
The district court properly granted summary judgment on Otyang’s § 1983
claim against Mitra on the basis of qualified immunity. See Cmty. House, Inc. v.
City of Boise, Idaho, 623 F.3d 945, 967 (9th Cir. 2010) (discussing qualified
immunity analysis); Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir.
1994) (“[T]he existence of a statute or ordinance authorizing particular conduct is a
13-15639 2

-- 2 of 3 --

factor which militates in favor of the conclusion that a reasonable officer would
find that conduct constitutional.”).
The district court properly granted summary judgment on Otyang’s state law
claims because Otyang failed to raise a genuine issue of material fact as to the
existence of essential elements of each claim. See Corales v. Bennett, 567 F.3d
554, 572 (9th Cir. 2009) (elements of negligence under California law); Marlene F.
v. Affiliated Psychiatric Med. Clinic, Inc., 770 P.2d 278, 281 (Cal. 1989) (elements
of negligent infliction of emotional distress under California law); So v. Shin, 151
Cal. Rptr. 3d 257, 268-70 (Ct. App. 2013), as modified on denial of reh’g (Jan. 28,
2013) (elements of assault, battery, and intentional infliction of emotional distress
under California law).
We do not consider facts not presented to the district court. See United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“[F]acts not presented to the
district court are not part of the record on appeal.”).
We reject Otyang’s contentions regarding the inapplicability of the
permitting ordinance.
AFFIRMED.
13-15639 3

-- 3 of 3 --