Lori Shavlik, individually v. City of Snohomish, a Municipal Corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORI SHAVLIK, individually and as a
marital community; KENNETH SHALVIK,
individually and as a marital community,
Plaintiffs-Appellants,
v.
CITY OF SNOHOMISH, a Municipal
Corporation; et al.,
Defendants-Appellees.
No. 18-35455
D.C. No. 2:17-cv-00144-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted August 29, 2019**
Seattle, Washington
Before: McKEOWN and BYBEE, Circuit Judges, and GAITAN,*** District Judge.
* 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 Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
FILED
SEP 3 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Lori Shavlik and Kenneth Shavlik appeal the district court’s entry of
summary judgment in favor of the City of Snohomish, the Snohomish County Fire
Protection District No. 4, and Snohomish County. Because the parties are familiar
with the facts, we do not recite them here. We have jurisdiction under 28 U.S.C.
§ 1291, and we review de novo the district court’s grant of summary judgment and
for abuse of discretion its sua sponte entry of summary judgment. See Bravo v.
City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011); Arce v. Douglas, 793
F.3d 968, 976 (9th Cir. 2015). We affirm.
None of Kenneth’s claims are at issue on appeal. He stipulated to dismissal
of his state-law tort claims and does not appeal the district court’s ruling that he
cannot base his claim under 42 U.S.C. § 1983 on Lori’s rights.
Summary judgment was appropriate as to Lori’s claims. She concedes that
her defamation claims fall outside the statute of limitations. The malicious
prosecution claim fails because the limited non-speculative evidence does not
suggest that “hostility or ill will” motivated the prosecution. Peasley v. Puget
Sound Tug & Barge Co., 125 P.2d 681, 689 (Wash. 1942). As to her related claim
for outrage, Lori presented inadequate evidence to show that the conduct was
“outrageous and extreme.” Reid v. Pierce County, 961 P.2d 333, 337 (Wash.
1998) (conduct must be “beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community” (citation,

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emphasis, and internal quotation marks omitted)). Finally, Lori did not identify or
present evidence of an official custom or policy that could support her § 1983
claim. See King v. County of Los Angeles, 885 F.3d 548, 558 (9th Cir. 2018).
The district court permissibly entered summary judgment sua sponte in favor
of the County. The Shavliks did not receive notice and time to respond, but the
relevant issues were fully and fairly ventilated. See Arce, 793 F.3d at 976.
We deny as moot the appellees’ request to strike the opening brief and
dismiss the appeal for failure to comply with the Circuit Rules. We grant the
Skavliks’ motion to excuse their late-filed reply brief (Dkt. 35).
AFFIRMED.

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