                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 17 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



DEON RICHARD DIRKS, an individual,               No. 09-55883

              Plaintiff - Appellee,              D.C. No. 2:08-cv-05214-ODW-CT

  v.
                                                 MEMORANDUM *
ROBERT MARTINEZ, individual and
official capacity; PABLO PARTIDA,
individual and official capacity; JAMES
DURAN, individual and official capacity,

              Defendants - Appellants,

  and

COUNTY OF LOS ANGELES,

              Defendant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                     Argued and Submitted December 9, 2010
                              Pasadena, California

Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Three Los Angeles sheriffs, Robert Martinez ('Martinez'), Pablo Partida

('Partida') (jointly, the 'deputies'), and James Duran ('Duran'), appeal the district

court's denial of their summary judgment motion. The sheriffs argue that, contrary

to the finding below, they are entitled to qualified immunity on plaintiff Deon

Dirµs' ('Dirµs') 42 U.S.C. y 1983 claims of false arrest, malicious prosecution,

and conspiracy.

      The deputies argue that they are entitled to qualified immunity on Dirµs'

false arrest claim because they had probable cause to arrest Dirµs for (1)

committing a moving violation, or (2) for obstructing a peace officer, pursuant to

California Penal Code y 148.

      With regard to the moving violation argument, in the district court, the

defendants did not allege that they had probable cause to arrest Dirµs for

committing a traffic violation. Therefore, the factual record on this point is not

sufficiently developed for us to entertain the argument now. See Bolµer v.

Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985).

      Turning to y 148, the district court correctly noted that there exists at this

time only a 'murµy record' with regard to whether the deputies could have

reasonably believed they had probable cause to arrest Dirµs for obstructing them.

The outcome of that claim will depend upon a jury unraveling currently
'unresolved credibility determinations.' Accordingly, we affirm the district

court's ruling that the deputies are not entitled to qualified immunity on Dirµs'

false arrest claim.

         Dirµs maµes malicious prosecution claims against the deputies and against

Duran, based on different factual allegations. As to the claim against the deputies,

the district court noted that there remain material, factual disputes underlying

Dirµs' malicious prosecution claim against Martinez and Partida. A jury will have

to determine whether they wrongfully caused charges to be filed against Dirµs,

µnowing that there was no probable cause, by maµing false allegations against him

and creating false police reports. See Awabdy v. City of Adelanto, 368 F.3d 1062,

1066 (9th Cir. 2004). Further, the district court was correct in finding that the

deputies failed to show that the termination of the criminal case against Dirµs was

anything other than a favorable dismissal on the merits. We affirm the district

court's denial of summary judgment for the deputies on the malicious prosecution

claim.

         Dirµs' only ground for claiming malicious prosecution against Duran,

however, is that Duran withheld information regarding a flower vendor who denied

witnessing the incident. Failure to provide information about the flower vendor is

insufficient to support a malicious prosecution claim, as the vendor had nothing
exculpatory to say. Accordingly, we reverse the district court's ruling on the

malicious prosecution claim against Duran.

      With regard to his conspiracy claim, Dirµs points to several acts by the

deputies from which a jury could infer, based on circumstantial evidence, that they

had agreed to violate his constitutional rights. See Mendocino Envtl. Ctr. v.

Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999). We affirm the district

court's ruling that the deputies are not entitled to qualified immunity on Dirµs'

conspiracy claim.




AFFIRMED in part, and REVERSED in part.
                                                                                FILED
Dirµs v. Martinez, No. 09-55883                                                 FEB 17 2011

                                                                          MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, concurring in part and dissenting in part:        U.S . CO U RT OF AP PE A LS




      I concur that Duran is entitled to summary judgment on Dirµs' malicious

prosecution claim. However, I dissent from the remainder of the majority's

disposition holding that the deputies are not entitled to summary judgment on the

claims against them.

      As to Dirµs' false arrest claim, the deputies are entitled to qualified

immunity on both grounds raised on appeal. First, Dirµs admitted that Martinez

and Partida pulled him over after observing him commit a moving violation.

Based on the violation, the deputies had probable cause to arrest Dirµs. Atwater v.

Lago Vista, 532 U.S. 318, 354 (2001). This probable cause supports Dirµs' arrest,

even if the deputies intended to arrest Dirµs for resisting, delaying, or obstructing

an officer under California Penal Code y 148. Devenpecµ v. Alford, 543 U.S. 146,

153-55 (2004). Given that Dirµs admitted the violation, and the deputies'

entitlement to immunity will otherwise be lost, we should exercise our discretion to

consider this basis for immunity for the first time on appeal. See Cmty. House, Inc.

v. City of Boise, 623 F.3d 945, 968 (9th Cir. 2010) (considering an immunity




                                           1
argument not raised in district court).1

      Second, under Dirµs' own version of the disputed facts, it appears that he

purposely did not produce his license, delayed getting out of his car, and resisted

handcuffing by pulling his arm away. These facts establish probable cause to

arrest Dirµs under y 148, or at least establish that a reasonable officer could have

believed probable cause existed. Thus, the deputies are entitled to immunity on

this alternative basis. Fuller, 950 F.2d at 1443.

      The deputies are also entitled to summary judgment on Dirµs' malicious

prosecution claim because the dismissal of the underlying criminal case was not a

favorable determination on the merits. See Eells v. Rosenblum, 43 Cal. Rptr. 2d

323, 326 (Cal. App. 1995) ('[i]f the resolution of the underlying litigation leaves

some doubt as to the defendant's innocence or liability, it is not a favorable

termination, and bars that party from bringing a malicious prosecution action')



      1
           Dirµs' admission indicates that he committed a moving violation or, at
least, was pulled over for what the deputies perceived to be a violation. If the
latter, the undisputed evidence of Dirµs' driving supports the deputies' reasonable
belief that a violation occurred and, thus, they are entitled to immunity. See Fuller
v. M.G. Jewelry, 950 F.2d 1437, 1443 (9th Cir. 1991). In either event, surely Dirµs
would not have admitted to a fact that was so apparently against his interest if he
had a basis to dispute it--even if he thought it was immaterial to the specific
immunity argument raised in the motion for summary judgment. Our
consideration of the issue for the first time on appeal would not, therefore, unduly
prejudice Dirµs.

                                           2
(internal quotation and alteration marµs omitted); cf. Awabdy v. City of Adelanto,

368 F.3d 1062, 1068 (9th Cir. 2004) (noting that dismissal of criminal charges in

the interest of justice under Cal. Penal Code y 1385 is favorable only if it reflects

the court's or prosecution's opinion that the action lacµed merit).

      Based on the foregoing, the deputies are entitled to summary judgment on

Dirµs' claim that they conspired to falsely arrest and maliciously prosecute him.

      Thus, I would reverse the denial of summary judgment on all claims.




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