                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 21 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


EDWARD REZEK,                                    No. 15-55320

              Plaintiff-Appellant,               D.C. No. 8:11-cv-01601-DOC-
                                                 RNB
  v.
                                                 MEMORANDUM*
CITY OF TUSTIN, et al.,

              Defendants-Appellees.



                    Appeal from the United States District Court
                           Central District of California
                         David O. Carter, District Judge

                     Argued and Submitted December 8, 2016
                              Pasadena, California

Before: CALLAHAN, BEA, and IKUTA Circuit Judges.

       Edward Rezek appeals from two district court orders: one dismissing his

third amended complaint (TAC) against IPC Corporation and private security



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


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guards Jose Reyes and Hirineo Ibarra (IPC Defendants), without leave to amend;

and another granting summary judgment in favor of Tustin police officers Brian

Chupp and Mark Turner (Tustin Defendants). Rezek alleges that while in a

pedestrian crosswalk, he was almost hit by a private security vehicle driven by Jose

Reyes. Rezek “slapped” the vehicle and “gave Reyes a lecture.” Later, Rezek was

arrested by Officers Chupp and Turner for vandalizing the security vehicle and for

resisting arrest. Rezek alleges that the police officers used excessive force, that he

did not resist arrest, and that the defendants conspired to violate his rights. Rezek

brought various tort claims against defendants based upon these allegations. In an

intervening criminal trial, Rezek was convicted of vandalism, but acquitted of

resisting arrest.

       The district court dismissed all claims against the IPC Defendants for failure

to state a claim for relief, based upon the standard set forth in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Subsequently, the district court issued an order which granted summary judgment

in favor of the Tustin Defendants as to Rezek’s malicious prosecution claim

against them under Federal Rule of Civil Procedure 56(f). Relying on StaffPro,

Inc. v. Elite Show Servs., Inc., 136 Cal. App. 4th 1392, 1402–03 (2006), the district

court found that Rezek failed as a matter of law to demonstrate the essential

                                           2
element of favorable termination because he could not prove a favorable

termination of the entire underlying action due to his conviction for vandalism.

The only claims Rezek attempts to revive through his appeal are his malicious

prosecution claims against all defendants, and his § 1983 conspiracy and

intentional infliction of emotional distress claims against the IPC Defendants.

      We have jurisdiction under 28 U.S.C. § 1291, and we review de novo the

district court’s dismissal of Rezek’s TAC against the IPC Defendants under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Gant v. Cnty.

of L.A., 772 F.3d 608, 614 (9th Cir. 2014). Likewise, we review de novo the

district court’s grant of summary judgment for the Tustin Defendants as to Rezek’s

§ 1983 malicious prosecution claim. Oluwa v. Gomez, 133 F.3d 1237, 1238 (9th

Cir. 1998). We “can affirm the district court on any basis supported by the

record.” Wood v. City of San Diego, 678 F.3d 1075, 1086 (9th Cir. 2012).1

       Rezek alleges that the Tustin Defendants falsely claimed in their police

reports that Rezek had resisted arrest, and that, as a result, Rezek was falsely

prosecuted for resisting arrest. Such claims are cognizable under § 1983. See




      1
             Because the parties are familiar with the facts and procedural history,
we restate them here only as necessary to explain our decision.

                                           3
Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985) (en banc); Galbraith v. Cnty.

of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).

      However, the elements of Rezek’s malicious prosecution claims are

controlled by California state law. Usher v. City of L.A., 828 F.2d 556, 562 (9th

Cir. 1987). Under California law, “[t]o establish a cause of action for . . .

malicious prosecution . . . , a plaintiff must plead and prove that the prior action (1)

was commenced by or at the direction of the defendant and was pursued to a legal

termination in his, plaintiff’s, favor; (2) was brought without probable cause; and

(3) was initiated with malice.” Crowley v. Katleman, 8 Cal. 4th 666, 676 (1994),

as modified (Nov. 30, 1994) (citing Bertero v. Nat’l Gen. Corp., 13 Cal. 3d 43, 50

(1974)) (citations in original omitted). When analyzing the favorable termination

element, California courts looks to “the judgment as a whole.” StaffPro, Inc., 136

Cal. App. 4th at 1403 (quoting Crowley, 8 Cal. 4th at 685). Because Rezek was

convicted of vandalism in the same action in which he was acquitted of resisting

arrest, he cannot demonstrate that he was successful in the entire criminal action.

Rezek’s malicious prosecution claims therefore fail as a matter of law.

      Because Rezek cannot state an underlying constitutional tort claim, the

district court did not err in dismissing his § 1983 conspiracy claim. See Lacey v.

Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012) (en banc) (“Conspiracy is not

                                           4
itself a constitutional tort under § 1983,” and “there must always be an underlying

constitutional violation.”).

         Because Rezek’s intentional infliction of emotional distress claim arises out

of communications made to the Tustin Police Department for the purpose of

investigating alleged criminal activity, it is barred as a matter of law. California

Civil Code § 47(b) provides an absolute privilege to communications made to law

enforcement. Hunsucker v. Sunnyvale Hilton Inn, 23 Cal. App. 4th 1498, 1502–03

(1994) (“[I]n Silberg v. Anderson [50 Cal. 3d 205, 215–16 (1990), as modified

(Mar. 12, 1990)], the California Supreme Court made it clear that the privilege of

section 47 applies to bar all tort actions, except for malicious prosecution.”). This

privilege furthers the policy of “assur[ing] utmost freedom of communication

between citizens and public authorities whose responsibility it is to investigate and

remedy wrongdoing.” Id. at 1503. Rezek also failed to plead adequate emotional

distress. See Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009). The district court,

therefore, correctly dismissed Rezek’s intentional infliction of emotional distress

claim.

         The district court’s orders are AFFIRMED.




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