Vena v. Moore, Schulman & Moore, Apc

── Vena v. Moore, Schulman & Moore, Apc ── Court: Court of Appeals for the Ninth Circuit Date: May 11, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 11 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NICHOLAS A. VENA, No. 25-383 Plaintiff - Appellant, D.C. No. 3:22-cv-00437-W-BLM v. MOORE, SCHULMAN & MOORE, APC; MEMORANDUM* JULIE WESTERMAN, Esq.; DOES 4-100, inclusive; Esq. DAVID S. SCHULMAN, Defendants - Appellees. Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding Argued and Submitted April 23, 2026 Pasadena, California Before: HIGGINSON, NGUYEN, and BRESS, Circuit Judges.** Concurrence by Judge Bress. Nicholas A. Vena appeals the district court’s grant of summary judgment for Moore, Schulman & Moore, APC (“MSM”), Julie Westerman, and David * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen A. Higginson, United States Circuit Judge for the Court of Appeals, Fifth Circuit, sitting by designation. Schulman (collectively, “Defendants”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. I. Section 1983 Claim Only a state actor can be liable under 42 U.S.C. § 1983. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). A plaintiff may demonstrate that a private individual was a state actor under “the joint action test” by “proving the existence of a conspiracy” or by showing that the “private party was a willful participant in joint action with the State or its agents.” Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002). 1. The district court correctly concluded that there was no evidence of a conspiracy between Defendants and retired Commissioner Jeannie Lowe to violate Vena’s due process rights. Although Defendants did not disclose that they had retained Commissioner Lowe as a mediator in eight other cases, that evidence does not suggest an “agreement” with Commissioner Lowe to ignore the law and evidence in issuing rulings in Vena’s ex-wife’s favor. See United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir. 1989) (“To prove a conspiracy between the state and private parties under section 1983, [plaintiff] must show an agreement or meeting of the minds to violate constitutional rights.” 2 25-383 (simplified)).1 Although Commissioner Lowe notified Vena in her initial disclosures that she had a prior “significant professional relationship” with MSM, would “entertain offers of employment” with them, and would not further disclose those matters, we agree with Vena that Canon 6D(5)(a) of the Code of Judicial Ethics demands more. That Commissioner Lowe should have disclosed the other matters with MSM, however, does not lead to an inference of a conspiracy between her and Defendants. While Vena need not show prejudice to establish the existence of a conspiracy, the fact that he fared worse under subsequent orders issued by another judge who took over from Commissioner Lowe undercuts any claim of a conspiracy. Considering the evidence in the light most favorable to Vena, see Scott v. Harris, 550 U.S. 372, 378 (2007), it cannot be reasonably inferred that Commissioner Lowe issued rulings in favor of Vena’s ex-wife based on her other mediations with MSM—let alone that Defendants were in agreemen