Keith Chung v. City of Los Angeles;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEITH CHUNG,
Plaintiff - Appellant,
v.
CITY OF LOS ANGELES; et al.,
Defendants,
and
BRAND SECURITY CORPORATION;
HEATHER HOLDRIDGE;
INTELLECTUAL PROPERTY
ENFORCEMENT COMPANY; and
CARLOS FERNANDEZ,
Defendants - Appellees.
No. 12-56702
D.C. No. 2:07-cv-07379-RT-VBK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, Senior District Judge, Presiding
Submitted December 10, 2014**
Pasadena, California
FILED
DEC 12 2014
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 panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.
Plaintiff Keith Chung appeals from the district court’s grant of judgment as a
matter of law to Defendants Brand Security Corporation, Heather Holdridge,
Intellectual Property Enforcement Company, and Carlos Fernandez following a
remand. Chung v. City of Los Angeles, 406 F. App’x 207 (9th Cir. 2010)
(unpublished). Reviewing de novo, Hagen v. City of Eugene, 736 F.3d 1251, 1256
(9th Cir. 2013), we affirm.
1. The district court properly granted judgment as a matter of law on the
negligence claim. Defendant Fernandez was the sole expert witness to testify as to
the requisite professional standard of care. Plaintiff presented no evidence that
Defendants failed to apply that level of care. See Chung, 406 F. App’x at 209
(remanding because Plaintiff raised a triable issue of fact "concerning whether the
private defendants acted with" the "care expected of professional counterfeit
investigators"). Because no reasonable juror could find for Plaintiff on the issue of
breach, Plaintiff’s claim fails. Hernandez v. KWPH Enters., 10 Cal. Rptr. 3d 137,
141 (Ct. App. 2004).
2. The district court properly granted judgment as a matter of law on the
conversion claim. In the initial appeal, we held that Plaintiff could not prevail with
2

-- 2 of 3 --

respect to items "that had actually come from [Plaintiff’s] store," but we remanded
because a "juror could conclude that [some Defendants] replaced the seized
merchandise with other counterfeit goods." Chung, 406 F. App’x at 211. On
remand, Plaintiff expressly disavowed what the parties refer to as the "switch out"
theory. Because Plaintiff no longer asserts that the goods were "switched out," the
conversion claim necessarily fails. See, e.g., United States v. Van Alstyne, 584
F.3d 803, 813 (9th Cir. 2009) ("The law of the case doctrine provides that one
panel of an appellate court will not as a general rule reconsider questions which
another panel has decided on a prior appeal in the same case." (internal quotation
marks omitted)).
AFFIRMED.
3

-- 3 of 3 --