Webb v. Olive Garden Italian Restaurants/Darden Restaurants, 032511 FED9, 09-17512

Docket Nº:09-17512
Party Name:DAVID Q. WEBB, Plaintiff - Appellant, v. OLIVE GARDEN ITALIAN RESTAURANTS/DARDEN RESTAURANTS; et al., Defendants-Appellees.
Judge Panel:Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Case Date:March 25, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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DAVID Q. WEBB, Plaintiff - Appellant,

v.

OLIVE GARDEN ITALIAN RESTAURANTS/DARDEN RESTAURANTS; et al., Defendants-Appellees.

No. 09-17512

United States Court of Appeals, Ninth Circuit

March 25, 2011

NOT FOR PUBLICATION

Submitted March 8, 2011 [***]

Appeal from the United States District Court for the Northern District of California No. 5:08-cv-04913-PVT Patricia V. Trumbull, Magistrate Judge, Presiding[**]

Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.

MEMORANDUM[*]

David Q. Webb appeals pro se from the district court's judgment dismissing his diversity action arising from an incident in which Webb alleges he felt threatened by Olive Garden Italian Restaurants's employees. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005), and we may affirm on any ground supported by the record, Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.

The district court properly dismissed Webb's assault claim because he failed to allege that he had been placed in reasonable fear of imminent physical harm. See Lowry v. Standard Oil Co. of Cal., 146 P.2d 57, 60 (Cal.Ct.App. 1944) (assault requires an act demonstrating an intent to inflict immediate injury on a person then present).

The district court properly dismissed Webb's false imprisonment claim because he failed to allege that he was deprived of his liberty or compelled to remain at the restaurant parking lot. See Collins v. Cnty. of L.A., 50 Cal.Rptr. 586, 591 (Ct. App. 1966) (false imprisonment "requires some restraint of the person and that he be deprived of his liberty or compelled to remain where he does not wish to remain, or go where he does not wish to go").

Dismissal of Webb's defamation claim was proper because the complained-of statements are nonactionable opinions. See Nygard, Inc. v. Uusi-Kerttula, 72 Cal.Rptr.3d 210, 229 (Ct. App. 2008) (defamation claim failed because it was based on "nonactionable statements of opinion, rather than verifiable statements of fact").

The district court properly dismissed Webb's claim for intentional infliction of emotional distress because he failed to allege "severe" emotional...

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