                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 16 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GEORGE MINDIOLA WUSSTIG,                         No. 14-55902

              Plaintiff - Appellant,             D.C. No. 2:12-cv-05901-SVW-E

 v.
                                                 MEMORANDUM*
LONG BEACH POLICE DEPARTMENT,
Erroneously Sued As City of Los Angeles,

              Defendant,

  And

SHEA S. ROBERTSON, No. 6103; CITY
OF LONG BEACH,

              Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                        Argued and Submitted May 2, 2016
                              Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER and GOULD, Circuit Judges and LEMELLE,** Senior
District Judge.

      Plaintiff George Wusstig appeals the district court’s grant of summary

judgment to Defendants Detective Shea Robertson, the Long Beach Police

Department, and the City of Long Beach. He challenges only the district court’s

decisions denying his request for additional discovery time and rejecting his

malicious prosecution claim. We affirm.

      The district court did not abuse its discretion in declining Wusstig’s request,

pursuant to Federal Rule of Civil Procedure 56(d), for additional time to conduct

discovery. In order to avail himself of Rule 56(d)’s protection, Wusstig had to

show that (1) allowing additional discovery would have precluded summary

judgment, and (2) he diligently pursued previous discovery opportunities.

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1026 (9th Cir. 2006).

Wusstig failed to satisfy either requirement. First, the additional discovery

Wusstig sought — testimony “verify[ing] that the only information [the AUSAs]

had identifying Mr. Wusstig as ‘George’ was the false ‘identification’ by defendant

Robertson” — would not have precluded summary judgment. As explained

below, in order to prevail on his malicious prosecution claim, Wusstig had to show

       **
             The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.

                                         -2-
that Robertson acted with malice. Wusstig has not shown that the discovery he

sought from AUSA Jayne Kim would provide evidence that Robertson acted

maliciously. Second, Wusstig’s attorney did not diligently seek discovery.

Wusstig’s attorney claimed he could not depose Kim because he was “embroiled in

the litigation” of another case, but he admitted that he was only busy with this case

from January 2014 until March 2014. Wusstig’s attorney has provided no

explanation for why he did not attempt to start taking the deposition of AUSA Kim

during October, November, or December of 2013.

      The district court properly granted summary judgment to the defendants on

Wusstig’s malicious prosecution claim. In order to prevail on his claim, Wusstig

had to show that the government lacked probable cause to prosecute him.

Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015). Wusstig does

not contest that the government had probable cause to believe that the “George” on

the wiretap recordings had violated federal drug laws. He argues only that the

government lacked probable cause to believe that he was that “George.” But, even

though in hindsight everyone recognizes that the government arrested the wrong

person, the government had probable cause to believe Wusstig was “George” given

that Wusstig (1) has the same first name as “George,” (2) has connections to

“George’s” associate, and (3) at least somewhat resembled “George.” Wusstig did


                                         -3-
not rebut the prima face case of probable cause established by the indictment. See

Williams v. Hartford Ins. Co., 195 Cal. Rptr. 448, 452 (Cal. Ct. App. 1983) (“[T]he

fact of the Grand Jury indictment gives rise to a prima facie case of probable cause,

which the malicious prosecution plaintiff must rebut.”).

      Wusstig’s malicious prosecution claim also independently fails because he

did not present sufficient evidence to create a triable issue of fact as to whether

Robertson acted with malice in pursuing Wusstig’s prosecution. See Awabdy v.

City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). Beyond the fact that

Robertson was wrong in his identification of Wusstig as “George,” Wusstig

identifies no evidence to suggest that Robertson acted “primarily for an improper

purpose.” Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d

1019, 1030 (9th Cir. 2008) (quoting Sierra Club Found. v. Graham, 85 Cal. Rptr.

2d 726, 739–40 (Cal. Ct. App. 1999)).

      AFFIRMED.




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