                    UNITED STATES COURT OF APPEALS                        FILED
                           FOR THE NINTH CIRCUIT                          AUG 23 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
RONALD J. COLLINS,                              No.   17-55634

                Plaintiff-Appellant,            D.C. Nos.
                                                5:15-cv-01771-CAS-KK
 v.                                             5:15-cv-02470-CAS-KK
                                                Central District of California,
CITY OF COLTON, a public entity; JACK           Riverside
MORENBERG; SCOTT CHADWICK,
Consol, an individual (Defendant in member      ORDER
case EDCV 15-02470 CAS (KKx)); DOES,
1-30, inclusive,

                Defendants-Appellees.

Before: LIPEZ,* TALLMAN, and OWENS, Circuit Judges.

      The memorandum disposition filed on June 29, 2018 is hereby amended.

The amended memorandum disposition will be filed concurrently with this order.

      The panel has voted to deny the petition for rehearing. The petition for

rehearing is DENIED.

      No further petitions for panel rehearing or petitions for rehearing en banc

will be entertained. The mandate in this case shall issue forthwith.




      *
              The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 23 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RONALD J. COLLINS,                              No.    17-55634

                Plaintiff-Appellant,            D.C. Nos.
                                                5:15-cv-01771-CAS-KK
 v.                                             5:15-cv-02470-CAS-KK

CITY OF COLTON, a public entity; et al.,
                                                AMENDED MEMORANDUM*
                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                        Argued and Submitted June 8, 2018
                              Pasadena, California

Before: LIPEZ,** TALLMAN, and OWENS, Circuit Judges.

      Appellant Ronald J. Collins brought suit against the appellees—Police

Detective Jack Morenberg, the City of Colton, and Scott Chadwick, the owner of a

car dealership—for, among other claims, unreasonable seizure of Collins' vehicle

and documents by Detective Morenberg, malicious prosecution by Detective


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
Morenberg and Chadwick, and the intentional infliction of emotional distress (IIED)

by Detective Morenberg. After discovery, the district court granted defendants'

motions for summary judgment on all counts. Collins appeals that judgment. We

review de novo a district court's grant of summary judgment. See Szajer v. City of

L.A., 632 F.3d 607, 610 (9th Cir. 2011). As the parties are familiar with the facts,

we do not further recount them here. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      1. Unreasonable Seizure. Collins asserts that Detective Morenberg's

warrantless seizure of his truck, and the documents contained therein, lacked

probable cause, and, therefore, violated the Fourth Amendment's protections against

unreasonable seizure. See United States v. Bagley, 772 F.2d 482, 491 (9th Cir. 1985)

(holding that under the automobile exception "the existence of probable cause alone

justifies a warrantless search or seizure of a vehicle"). Collins brings this claim

pursuant to 42 U.S.C. § 1983. Determinations of probable cause are "evaluated in

light of the totality of the circumstances." United States v. Pinela-Hernandez, 262

F.3d 974, 978 (9th Cir. 2001). The existence of probable cause is solely "based upon

the information the officer had at the time," not what information was subsequently

discovered. John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008). "Probable

cause is an objective standard. The arresting officers' subjective intention . . . is

immaterial in judging whether their actions were reasonable for Fourth Amendment


                                         2                                    17-55634
purposes." United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).

      It is undisputed that (1) Chadwick reported the theft of a set of license plates

to the police; (2) Chadwick showed Detective Morenberg a DMV statement

reporting that Collins purchased a truck from him as an out-of-state sale, with no

license fee paid; (3) Chadwick told Detective Morenberg that he had instructed an

employee to remove the license plates from the truck before Collins took ownership

of it; and (4) Detective Morenberg discovered the plates affixed to Collins' truck, at

an in-state motel. On these undisputed facts, judged according to an objective

standard at the time the truck was seized, "a prudent person would have concluded

that there was a fair probability that [the accused] had committed a crime." United

States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986). Collins fails to put forth evidence

to place probable cause in genuine dispute. Accordingly, Collins fails to show that

Detective Morenberg violated his Fourth Amendment rights by seizing the truck.

See Bagley, 772 F.2d at 491.

      2. § 1983 Malicious Prosecution. As for Collins' malicious prosecution claim

against Detective Morenberg pursuant to § 1983, Collins puts forth insufficient facts

to rebut the "Smiddy presumption." See Smiddy v. Varney, 665 F.2d 261, 266 (9th

Cir. 1981) (Smiddy I), overruled on other grounds by Beck v. City of Upland, 527

F.3d 853, 865 (9th Cir. 2008). "Smiddy I held that there is a rebuttable presumption

that a prosecutor exercises independent judgment regarding the existence of


                                          3                                    17-55634
probable cause in filing a complaint. The presumption can be overcome, for

example, by evidence that the officers knowingly submitted false information[.]"

Smiddy v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986) (Smiddy II). Unless the

presumption is overcome, it "insulates the arresting officers from liability for harm

suffered after the prosecutor initiated formal prosecution." Id. We have also held

that "a plaintiff's account of the incident in question, by itself, does not overcome

the presumption of independent [prosecutorial] judgment" because "[a] suspect's

account of an incident, by itself, is unlikely to influence a prosecutor's decision."

Newman v. Cty. of Orange, 457 F.3d 991, 994-95 (9th Cir. 2006) (emphasis omitted).

      Collins has not carried his burden of producing evidence that Detective

Morenberg knowingly supplied false information to the charging authorities, thereby

improperly furthering Collins' prosecution. See Smiddy, 803 F.2d at 1471. To the

extent that Collins identifies any genuine inconsistencies in Detective Morenberg's

account, nothing Collins puts forth shows that the information he conveyed to

prosecutors was knowingly false. Summary judgment, therefore, was proper as to

Collins' malicious prosecution claim against Detective Morenberg.

      3. State Law Malicious Prosecution.       As to Collins' state common law

malicious prosecution claim against Chadwick, summary judgment was proper

because Collins failed to put forward facts which genuinely dispute whether

Chadwick had probable cause to file the police report. See Siebel v. Mittlesteadt,


                                         4                                    17-55634
161 P.3d 527, 530 (Cal. 2007) (explaining that a lack of probable cause is one of the

three elements of a state law malicious prosecution claim). The Supreme Court of

California has instructed that there should be "stringent enforcement of the probable

cause element of the malicious prosecution tort," and "[i]t is up to malicious

prosecution plaintiffs to ensure that their lawsuits can survive the rigorous judicial

scrutiny given to such actions." Id. at 534 (quoting Casa Herrera, Inc. v. Beydoun,

83 P.3d 497, 505 (Cal. 2004)).

      Chadwick has offered undisputed evidence that he possessed probable cause

to file the police report, including: (1) Chadwick's sworn testimony that he instructed

the removal of the license plates from Collins' truck prior to Collins driving away

from the lot; (2) Flores' declaration that not only did Chadwick tell him to remove

the license plates, but that he, in fact, removed them; (3) the DMV statement of facts

which states that Collins did not pay California sales tax or license fees because the

sale of the truck was to be recorded as an out-of-state sale; and (4) the photo of

Collins' truck with the license plates affixed to it, which was in Chadwick's

possession prior to notifying the police.

      In response, Collins never directly contends, under oath, that the plates were

actually on his truck when he drove it away. Moreover, while Collins is correct that

the sale documents for the truck do not memorialize the plates' removal, neither do

they affirmatively state that the license plates were left on the truck. Such an


                                            5                                  17-55634
omission, therefore, does not contravene Flores' deposition statement that he

removed the license plates at the time of sale. Finally, although Collins makes

numerous claims about when Chadwick learned that Collins possessed the license

plates or whether Chadwick had malicious intent when he filed the police report,

such claims are ultimately immaterial. See Lassiter v. City of Bremerton, 556 F.3d

1049, 1054–55 (9th Cir. 2009) (reasoning that "it is unnecessary for us to reach [the

malice] element because probable cause is an absolute defense to malicious

prosecution"); see, e.g., Williams v. Taylor, 181 Cal. Rptr. 423, 428-29 (Cal. Ct.

App. 1982) (affirming summary judgment as to a malicious prosecution claim after

determination of the probable cause element). There is no evidence raising a triable

issue of fact as to whether Chadwick had sufficient probable cause to seek initiation

of criminal charges against Collins.

      4. Municipality Liability. Collins' sole claim against the City of Colton is a

municipal liability § 1983 claim based on the policies that led to his averred

malicious prosecution by Detective Morenberg. Pursuant to Monell v. Dep't of Soc.

Servs. of the City of N.Y., 436 U.S. 658 (1978), municipalities may be held liable

under § 1983 when "a policy, practice, or custom of the entity can be shown to be a

moving force behind a violation of constitutional rights." Dougherty v. City of

Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694). As a

municipal liability claim requires the actual deprivation of a constitutional right, and


                                           6                                    17-55634
we have found that summary judgment was proper as to the malicious prosecution

claim against Detective Morenberg, summary judgment was likewise proper as to

the City of Colton.

      5. Intentional Infliction of Emotional Distress. Lastly, the district court

correctly granted summary judgment against Collins on his IIED claim against

Detective Morenberg. An IIED claim requires, in part, "extreme and outrageous

conduct by the defendant with the intention of causing, or reckless disregard of the

probability of causing, emotional distress." Hughes v. Pair, 209 P.3d 963, 976 (Cal.

2009) (quoting Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 819 (Cal.

1993)). Collins' IIED claim is based almost entirely on the same conduct underlying

the averred constitutional claims against Detective Morenberg—the unreasonable

seizure of the truck and the malicious prosecution—that we have already found to

merit summary judgment.        As to Collins' additional assertion that Detective

Morenberg spoke to him in a rude and dismissive manner, liability for emotional

distress generally "does not extend to mere insults, indignities, threats, annoyances,

petty oppressions, or other trivialities." Cole v. Fair Oaks Fire Prot. Dist., 729 P.2d

743, 746 n.7 (Cal. 1987) (quoting Restatement (Second) of Torts § 46 cmt. d (Am.

Law Inst. 1965)).

      Costs are awarded to the appellees. See Fed. R. App. P. 39(a)(2).

      AFFIRMED.


                                          7                                    17-55634
