JOHN F. CHAMPAGNE, Jr. v. the City and County of San Francisco;

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN F. CHAMPAGNE, Jr.,
Plaintiff - Appellant,
and
GARY A. CHAMPAGNE,
Plaintiff,
v.
THE CITY AND COUNTY OF SAN
FRANCISCO; et al.,
Defendants - Appellees.
No. 08-16368
D.C. No. 3:06-CV-05425-JSW
ORDER and
MEMORANDUM*
JOHN F. CHAMPAGNE, Jr. and GARY
A. CHAMPAGNE,
Plaintiffs - Appellants,
v.
THE CITY AND COUNTY OF SAN
FRANCISCO, a municipal corporation; et
al.,
No. 08-17180
D.C. No. 3:06-cv-05425-JSW
FILED
NOV 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
2
Defendants - Appellees.
JOHN F. CHAMPAGNE, Jr. and GARY
A. CHAMPAGNE,
Plaintiffs - Appellants,
v.
THE CITY AND COUNTY OF SAN
FRANCISCO, a municipal corporation; et
al.,
Defendants - Appellees.
No. 08-17503
D.C. No. 3:06-cv-05425-JSW
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued Submitted October 6, 2010
San Francisco, California
Before: REINHARDT and BERZON, Circuit Judges, and POLLAK, Senior
District Judge. **

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1 We grant Champagne’s February 24, 2009 motion to deem his Reply Brief
filed as-is and to take judicial notice of the documents attached thereto.
2 After arguing that the right he seeks to enforce is the right to “own and
manage his property,” Champagne states at one point in his brief that he presented
sufficient facts to support his claim that “Defendants’ actions improperly interfered
with his right to manage his property.” At oral argument, Champagne framed his
asserted right as the constitutional right “to evict the tenant without fraudulent
interference by the city.” Because we need not address the constitutional issues in
this case, we do not address whether any of these legal theories are viable.
3
This case is resubmitted as of the date of this memorandum.
Summary judgment was appropriate in this case, as was the denial of
sanctions; however, we reverse the award of attorneys’ fees. 1
Federal Due Process Claim
Even assuming that Champagne possesses the constitutional right he
asserts,2 he has failed to offer proof that the Defendants violated it. Defendants
simply revoked code violation determinations to which Champagne had no
entitlement. In addition, the state court had dismissed the cause of action that was
based on the alleged code violations before the alleged improprieties took place.
After the determinations were revoked, Champagne was in the same position he
had been in before the Defendants made them. The district court correctly granted
summary judgment on the due process claim.

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4
On appeal, Champagne alleges two new constitutional violations. However,
“[t]he parties cannot raise new issues on appeal to secure a reversal of the lower
court’s summary judgment determination.” BankAmerica Pension Plan v.
McMath, 206 F.3d 821, 825 (9th Cir. 2000). We do not consider these new claims.
State Law Claims
In his opening brief, Champagne states that he has submitted “sufficient
evidence supporting each of his state law claims sufficient the [sic] defeat
summary judgment.” As proof of this proposition, Champagne simply cites to his
opposition to summary judgment filed with the district court. He provides no other
legal argument in the section entitled “Plaintiff has evidence supporting each of his
state law claims.” This sentence alone is not sufficient to preserve those claims.
See Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 924 (9th
Cir. 1988).
Champagne does challenge the district court’s rulings on causation and
qualified immunity. The district court relied on at least one additional ground for
its grant of summary judgment as to each of the state law claims. Champagne did
not challenge those other grounds. Accordingly, Champagne has waived his state
law claims. Id.
Discovery

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5
Champagne contends that the district court erred by upholding the
magistrate judge’s order denying his request to enlarge discovery. However, “[a]
district court is vested with broad discretion to permit or deny discovery, and a
decision to deny discovery will not be disturbed except upon the clearest showing
that the denial of discovery results in actual and substantial prejudice to the
complaining litigant.” Laub v. United States Dep’t of Interior, 342 F.3d 1080, 1093
(9th Cir. 2003) (internal quotations omitted). There is no clear showing of actual
and substantial prejudice in this case.
Champagne also contends that the district court erred by denying his request
to continue the summary judgment hearing pursuant to Federal Rule of Civil
Procedure 56(f). However, the district court did not abuse its discretion in
concluding that none of the discovery in question was “essential to justify”
Champagne’s opposition to the motion for summary judgment. See Fed. R. Civ. P.
56(f).
Attorneys’ Fees
We have repeatedly held that attorneys’ fees in civil rights cases may be
awarded to a defendant only in “exceptional circumstances.” See, e.g., Barry v.
Fowler, 902 F.2d 770, 773 (9th Cir. 1990). Attorneys’ fees are not appropriate for
civil rights plaintiffs “launching a good faith effort to advance a novel theory” as

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6
long as the party’s claims are not “wholly without merit.” Legal Services of N.
Cal., Inc. v. Arnett, 114 F.3d 135, 141 (9th Cir. 1997). At the initial case
management conference, the district court acknowledged that this was a “very
unusual and fact-intensive case, raising novel questions of law.” (emphasis added).
Thus, at the time the Champagnes brought this case, it did not appear to be
frivolous, meritless, or vexatious. Moreover, even if the law or facts “appear
questionable or unfavorable at the outset,” that does not make the case frivolous,
because “[d]ecisive facts may not emerge until discovery or trial.” Christianburg
Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). Here, significant facts did
emerge during discovery, although they were not significant enough under the
circumstances to change the result. The award of attorneys’ fees to the Defendants
is reversed.
Sanctions
We find no error or abuse of discretion in the district court’s denial of
Plaintiffs’ motion for sanctions upon Defendants for filing the attorneys’ fees
motion.
AFFIRMED in part and REVERSED in part.

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