Patrick J. Tobin v. City and County of San Francisco

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK J. TOBIN,
Plaintiff-Appellant,
v.
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant-Appellee.
No. 16-17040
D.C. No. 3:13-cv-01504-MEJ
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Submitted December 18, 2018**
San Francisco, California
Before: GILMAN,*** PAEZ, and OWENS, Circuit Judges.
Patrick Tobin appeals from the district court’s order granting summary
judgment to the City and County of San Francisco (CCSF). As the parties are
* 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 Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
JAN 3 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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familiar with the facts, we do not recount them here. We affirm.
1. As an initial matter, Tobin failed to show that the district court abused its
discretion in excluding his declaration. See Wong v. Regents of Univ. of Cal., 410
F.3d 1052, 1060 (9th Cir. 2005) (“Rulings regarding evidence made in the context
of summary judgment are reviewed for an abuse of discretion.”). The district court
properly excluded Tobin’s declaration because it was unsigned and contained
instructions from Tobin’s counsel. See 28 U.S.C. § 1746 (requiring that a
declaration be signed and dated); Fed. R. Civ. P. 56(c)(4) (requiring that a
declaration “be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the . . . declarant is competent to testify on
the matters stated”).
2. Tobin unsuccessfully argues that his state-law retaliation claims accrued
in July 2011 and are therefore not time barred under the California Tort Claims
Act. See Cal. Gov’t Code § 911.2(a) (requiring that state-law claims be presented
to the relevant agency “not later than six months after the accrual of the cause of
action”). As an initial matter, the parties agree that Tobin first presented CCSF
with a claim in December 2011. The district court correctly determined that
Tobin’s state-law claims accrued at the latest in May 2010 because Tobin failed to
identify evidence of retaliatory conduct after May 2010. Therefore, the district
court properly ruled that Tobin’s state-law claims are time barred because he failed

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to present them to CCSF until December 2011, which is “later than six months
after the accrual of the cause of action” in May 2010. Id. In addition, Tobin’s
alternative arguments—that CCSF waived its defense of untimeliness and that his
First and Second Amended Complaints relate back to his initial complaint—are
without merit.
3. Finally, the district court did not err in granting summary judgment to
CCSF on Tobin’s First Amendment retaliation claim under 42 U.S.C. § 1983. To
prevail on his claim, Tobin bore the burden “of showing the state ‘took adverse
employment action . . . [and that the] speech was a ‘substantial or motivating’
factor in the adverse action.’” Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009)
(citation omitted). The district court properly granted summary judgment because
Tobin failed to establish that his protected speech was a substantial or motivating
factor in the adverse employment action. See Campidoglio LLC v. Wells Fargo &
Co., 870 F.3d 963, 973 (9th Cir. 2017) (“We may affirm summary judgment on
any ground supported by the record.”).
AFFIRMED.

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