Drew Josfan v. Nylon Project , 595 F. App'x 716 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 03 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DREW JOSFAN, No. 12-57151
Plaintiff - Appellant, D.C. No. 2:09-cv-07904-AHM-
PLA
v.
NYLON PROJECT, LLC, DBA MEMORANDUM*
Indochine; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Alvin Howard Matz, District Judge, Presiding
Argued and Submitted February 9, 2015
Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and SHEA, Senior District
Judge.**
Drew Josfan appeals the district court’s grant of summary judgment in favor
of Santa Barbara Police Department officers Thomas Eccles, Mark Corbett, and Ed
Ruiz (collectively, “City Defendants”) and Nylon Project, LLC, Michael Gomez,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward F. Shea, Senior District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
and Mike George (collectively, “Indochine Defendants”). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
1. The district court correctly held that because the City Defendants had
probable cause to arrest Josfan, they cannot be held liable under 42 U.S.C. § 1983
for false arrest and malicious prosecution. See Estate of Tucker ex rel. Tucker v.
Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (listing lack of
probable cause as a necessary element of a malicious prosecution claim); Cabrera
v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (per curiam) (listing
lack of probable cause as a necessary element of a false arrest claim). Based on
George’s initial 911 call, conversations with George and Gomez prior to Josfan’s
arrest, and their own observations, the City Defendants each possessed information
“sufficient to lead a person of reasonable caution to believe an offense ha[d] been
or [was] being committed by [Josfan].” John v. City of El Monte, 515 F.3d 936,
940 (9th Cir. 2008) (internal quotation marks omitted). Critically, the complete
accounts of what George and Gomez told the City Defendants prior to Josfan’s
arrest, including details suggesting that Josfan was involved in a physical
altercation and had to be forcibly removed from Indochine, were never
contradicted. That George and Gomez did not provide all of these details each
time they described what happened before Josfan’s arrest does not cast doubt on
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the full recitation each of them gave. Moreover, these details were consistent with
the transcript of the 911 call and the reports filed by Corbett and Ruiz.
2. Josfan failed to produce facts sufficient to support his § 1983 conspiracy
claims because there is no evidence that the City and Indochine Defendants shared
a common objective of depriving Josfan of his civil rights. See Crowe v. Cnty. of
San Diego, 608 F.3d 406, 440–41 (9th Cir. 2010). Josfan claims that the
Defendants conspired to concoct a false, post hoc justification for his arrest and
prosecution. However, George and Gomez’s post-arrest statements to the City
Defendants were entirely consistent with the 911 call and uncontradicted accounts
of George and Gomez’s pre-arrest statements. Thus, there is no evidence to
suggest that the Defendants fabricated facts to create probable cause.
3. Finally, Josfan failed to provide any evidence contradicting the
deposition testimony of George and Gomez, which established that they
“possessed . . . facts . . . sufficient to cause a reasonable person to honestly believe
the charge[s] [against Josfan were] true.” Greene v. Bank of Am., 156 Cal. Rptr. 3d
901, 910–11 (Ct. App. 2013) (internal quotation marks omitted). Accordingly,
Josfan did not create a genuine issue of material fact with respect to his state law
claim that the Indochine Defendants conspired to cause a malicious prosecution.
See Walsh v. Bronson, 245 Cal. Rptr. 888, 895 (Ct. App. 1988) (explaining that a
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civil conspiracy claim must fail if the underlying malicious prosecution claim
fails).
AFFIRMED.
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