                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 07 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RAMON OBAS,                                      No. 11-15617

              Plaintiff - Appellee,              D.C. No. 5:09-cv-05540-LHK

  v.
                                                 MEMORANDUM *
COUNTY OF MONTEREY; CONAN
HICKEY; BRYAN HOSKINS,

              Defendants - Appellants.



                    Appeal from the United States District Court
                      for the Northern District of California
                       Lucy Koh, District Judge, Presiding

                     Argued and Submitted December 4, 2012
                            San Francisco, California

Before: TROTT, RAWLINSON, and CUDAHY,** Circuit Judges.


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

        **  The Honorable Richard D. Cudahy, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.




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         Conan Hickey (Hickey) and Bryan Hoskins (Hoskins) appeal from the

denial of their motion for summary judgment based on their assertion of qualified

immunity.




         1.   The district court’s rejection of a qualified immunity defense is

immediately appealable. See Wilkinson v. Torres, 610 F.3d 546, 549-50 (9th Cir.

2010).




         2.   The district court did not err in finding that disputed facts in this case

were material to the qualified immunity analysis. Hickey and Hoskins contend that

Emergency Medical Technicians (EMTs) informed them that Obas was cleared for

transport via police cruiser. The examining EMT, Mike Vindhurst (Vindhurst),

counters that he recommended to officers that Obas be placed in c-spine

precautions and taken to the hospital via ambulance. The recommendation was

given to a group of “2 or 3 deputies.” Although Vinhurst could not identify the

deputies with particularity, Hickey and Hoskins were in the vicinity and admitted

speaking with EMTs on the scene. Indeed, the officers conceded in the district

court that if a recommendation had been made to transport Obas in an ambulance,


                                            2
failure to do so would amount to excessive force in violation of clearly established

law. Counsel confirmed this concession during oral argument.




      3.     Obas’ state law battery claims are analyzed under the same

framework, and require the same proof, as his section 1983 excessive force claim.

See Saman v. Robbins, 173 F.3d 1150, 1157 n.6 (9th Cir. 1999) (treating section

1983 and state law battery claims as synonymous). Therefore, the same question

of material fact identified above precludes summary judgment on the state law

battery claims, as the district court properly concluded.




      4.     Discretionary immunity for battery under California Government

Code section 820.2 is unavailable because Hickey and Hoskins are accused of

using excessive force. See Blankenhorn v. City of Orange, 485 F.3d 463, 487 (9th

Cir. 2007) (noting that section 820.2 “does not apply to officers who use

unreasonable force in making an arrest”) (citations omitted).




      5.     We lack jurisdiction to review the district court’s denial of immunity

pursuant to California Civil Code section 3333.3 for Obas’ state law negligence

claims. Section 3333.3 confers immunity from damages, not immunity from suit.


                                           3
Therefore, denial of such immunity is not immediately appealable as a collateral

order. See Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir. 2011) (“[T]he

availability of an appeal depends on whether, under state law, the immunity

functions as an immunity from suit or only as a defense to liability.”) (citations

omitted) (emphasis in the original).

      AFFIRMED.




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