                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 22 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHARRON LEFAY; et al.,                           No.   15-15029

              Plaintiffs-Appellants,             D.C. No.
                                                 1:13-cv-01362-AWI-MJS
 v.

WILLIAM CHARLES LEFAY; et al.,                   MEMORANDUM*

              Defendants-Appellees.



SHARRON LEFAY; et al.,                           Nos. 15-15235
                                                      15-15489
              Plaintiffs-Appellees,
                                                 D.C. No.
 v.                                              1:13-cv-01362-AWI-MJS

WILLIAM CHARLES LEFAY,

              Defendant,

 and

ERIC PANABAKER, Fresno Police
Officer; et al.,

              Defendants-Appellants.


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                     Argued and Submitted December 13, 2016
                             San Francisco, California

Before: KOZINSKI, BYBEE, and N.R. SMITH, Circuit Judges.

      Sharron LeFay (“Sharron”) appeals the district court’s summary judgment

ruling that Officer Darryll Van Deursen had probable cause to place her on a

seventy-two-hour mental health hold pursuant to California Welfare and

Institutions Code section 5150. The City of Fresno, along with several Fresno

Police Officers, filed a cross-appeal, seeking review of the district court’s order

granting Plaintiffs attorney’s fees as a discovery sanction. We affirm.

      1. A detention under California Welfare and Institutions Code section 5150

must be supported by probable cause. Bias v. Moynihan, 508 F.3d 1212, 1220 (9th

Cir. 2007). “Probable cause exists under section 5150 if facts are known to the

officer ‘that would lead a person of ordinary care and prudence to believe, or to

entertain a strong suspicion, that the person detained is mentally disordered and is

a danger to himself or herself.’” Id. (quoting People v. Triplett, 192 Cal. Rptr. 537,

540–41 (Cal. Ct. App. 1983)).




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      The Fresno Police Department dispatched Officer Van Deursen to the LeFay

residence after Sharron’s husband, William LeFay (“William”), called and reported

that Sharron had “jumped on him.” The dispatcher informed Officer Van Deursen

that a male and female were arguing and that other officers had been dispatched to

the residence early that evening. Upon his arrival at the residence, William

reported to Officer Van Deursen that Sharron was delusional, had not eaten in

days, and was in a “gradual mental decline.” William also reported that Sharron

was falsely accusing him of stealing her purse and poisoning her food. Officer

Van Deursen then attempted to confirm the information he had received from

William by speaking with Sharron. Sharron stated she had not eaten a meal in

three days and could not recall the last time she had consumed liquid. Sharron

explained that she was being treated for depression, fibromyalgia, and other body

pain. She also expressed concern that William was stealing her purse. Finally,

Officer Van Deursen observed that Sharron had trouble walking, that she appeared

malnourished and dehydrated, and that she was wearing dirty clothing, as if she

had not changed in several days. These “specific and articulable facts” support a

“rational inference” that Sharron was mentally disordered and a danger to herself.

Id. (quoting Triplett, 192 Cal. Rptr. at 541). Therefore, we find Officer Van

Deursen had probable cause to place Sharron on a section 5150 mental health hold.


                                          3
Accordingly, we affirm the district court’s grant of summary judgment in favor of

Officer Van Deursen on Sharron’s Fourth Amendment claim, actionable under 42

U.S.C. § 1983.

      2. “[W]e review every discovery sanction for an abuse of discretion, [and]

we give particularly wide latitude to the district court’s discretion to issue

sanctions under Rule 37(c)(1).” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259

F.3d 1101, 1106 (9th Cir. 2001). Federal Rule of Civil Procedure 37(c)(1) allows a

court to exclude from trial or a hearing, any witness or evidence that has not been

properly identified in accordance with Rule 26(a) or (e). However, there are two

express exceptions to this general rule: “The information may be introduced if the

parties’ failure to disclose the required information is substantially justified or

harmless.” Id. (citing Fed. R. Civ. P. 37(c)(1)). “In addition to or instead of this

sanction, the court, on motion and after giving an opportunity to be heard . . . may

order payment of the reasonable expenses, including attorney’s fees, caused by the

failure.” Fed. R. Civ. P. 37(c)(1)(A).

      Under Rule 26(a)(2), parties must “disclose the identity of each expert

witness ‘accompanied by a written report prepared and signed by the witness.’”

Yeti by Molly, 259 F.3d at 1106 (quoting Fed. R. Civ. P. 26(a)(2)(B)). Defendants

failed to comply with Rule 26(a)(2) by the deadline the district court set in a


                                            4
scheduling order. LeFay v. LeFay, No. 1:13-cv-1362, 2014 WL 6473725, at *1

(E.D. Cal. Nov. 18, 2014). Defendants then asked the district court to modify the

scheduling order to give them additional time to identify their expert witnesses and

submit their expert reports. Id. In ruling on this motion, the district court analyzed

whether allowing Defendants to present their expert witnesses at trial would harm

Plaintiffs by determining whether Plaintiffs would suffer any prejudice. Id. at *6

(“So the Court then turns to the question of harmlessness, or its corollary, prejudice

. . . .”). Ultimately, the district court chose not to exclude Defendants’ expert

witnesses from trial. Id. The district court concluded that one of Rule 37(c)(1)’s

express exceptions applied: Defendants’ failure to timely disclose the identity and

written reports of their expert witnesses would not prejudice Plaintiffs, and thus

was harmless, so long as Defendants satisfied certain conditions. Id. The district

court also awarded Plaintiffs the reasonable attorney’s fees they had incurred in

arguing the motion to modify the scheduling order. Id. at *7. The award of

attorney’s fees was necessary to ensure Plaintiffs—who had incurred fees opposing

a motion Defendants had filed to fix their own shortcomings—were not harmed.

Although another jurist might not have awarded Plaintiffs their attorney’s fees

under these circumstances, or in this manner, that is not the relevant inquiry. See

Halaco Eng’g Co. v. Costle, 843 F.2d 376, 379 (9th Cir. 1988). We find that the


                                           5
district court did not make “a clear error of judgment,” and thus did not abuse its

discretion, in awarding Plaintiffs their attorney’s fees. Id.

      Later, after the district court ruled on Defendants’ motions for summary

judgment, Plaintiffs filed a motion to recover their attorney’s fees pursuant to the

district court’s order. The district court then held a hearing to give the parties an

opportunity to be heard before awarding the fees. We find that under these

circumstances Rule 37(c)(1)’s procedural requirements were met.

      Finally, we reject Sharron’s contention that the cross-appeal is so lacking in

merit that sanctions are appropriate. Although we are affirming the district court’s

award of fees, we cannot conclude that “the result is obvious or the . . . arguments

are wholly without merit.” Glanzman v. Uniroyal, Inc., 892 F.2d 58, 61 (9th Cir.

1989) (quoting McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981)).

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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