                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DONALD WIGE ,                            No. 10-56515
                Plaintiff-Appellant,
                                           D.C. No.
                v.                      2:09-cv-01369-
                                          MMM-PLA
CITY OF LOS ANGELES; OFFICER
RYAN BELLOWS; LEONARD
MCKENSIE ; OFFICER JASON LEIKAM ,         OPINION
             Defendants-Appellees.


     Appeal from the United States District Court
        for the Central District of California
    Margaret M. Morrow, District Judge, Presiding

               Argued and Submitted
       September 6, 2012—Pasadena, California

                 Filed April 16, 2013

  Before: Alex Kozinski, Chief Judge, Paul J. Watford
       and Andrew D. Hurwitz, Circuit Judges.

              Opinion by Judge Watford
2                WIGE V . CITY OF LOS ANGELES

                           SUMMARY*


                            Civil Rights

    Reversing the district court’s summary judgment and
remanding, the panel held that issue preclusion did not bar a
plaintiff from bringing a 42 U.S.C. § 1983 action for false
arrest, false imprisonment, and malicious prosecution.

    The panel held that even though at a state court
preliminary hearing, a magistrate had found probable cause
to believe that plaintiff committed attempted murder, plaintiff
raised a genuine dispute in his § 1983 action as to whether the
lead detective on the case fabricated evidence by falsely
testifying at the hearing that the victim had identified plaintiff
as the shooter. The panel held that the identity-of-issues
requirement for issue preclusion was not met because the
evidence available and known to the detective was different
from the evidence presented to the court at the preliminary
hearing. At the preliminary hearing, the state court
determined only that a reasonable person could have believed
the detective. It did not (and did not have to) decide whether
the detective should be believed. Because that was the issue
that plaintiff sought to litigate in his § 1983 action, he was not
barred by the doctrine of issue preclusion from doing so.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               WIGE V . CITY OF LOS ANGELES                  3

                         COUNSEL

James S. Muller (argued), Law Offices of James Muller, and
Chris Ford, Law Office of Chris Ford, Los Angeles,
California, for Plaintiff-Appellant.

Amy Jo Field (argued), Deputy City Attorney, and Carmen A.
Trutanich, City Attorney, Los Angeles, California, for
Defendants-Appellees.


                         OPINION

WATFORD, Circuit Judge:

   The State of California charged the plaintiff in this case,
Donald Wige, with attempted murder. A jury eventually
acquitted Wige, but not before he spent ten months in jail
awaiting trial. In this action, brought under 42 U.S.C. § 1983,
Wige sues several police officers and their employer, the City
of Los Angeles, for false arrest, false imprisonment, and
malicious prosecution.

    The question before us is whether Wige’s action is barred
by the doctrine of issue preclusion. At Wige’s preliminary
hearing in state court, the magistrate judge found probable
cause to believe Wige had committed attempted murder. If
that finding is entitled to preclusive effect, Wige’s § 1983
claims are barred because each claim requires him to prove
that defendants lacked probable cause to arrest and prosecute
him for that offense. See Awabdy v. City of Adelanto,
368 F.3d 1062, 1066 (9th Cir. 2004); Cabrera v. City of
Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (per
curiam).
4              WIGE V . CITY OF LOS ANGELES

    We begin then with the events at Wige’s preliminary
hearing. No one disputed that the victim of the charged
offense, Carlos Torres, had been shot and struck in the leg by
an assailant firing from a moving car. The only issue was
whether probable cause existed to believe Wige was the
shooter. The State presented no physical evidence tying
Wige to the shooting. But the lead detective on the case,
Officer Ryan Bellows, testified that he and his partner
interviewed Torres shortly after the shooting; that he showed
Torres a photographic lineup which included Wige; and that
Torres circled Wige’s photograph to identify him as the
shooter.

    Torres, however, told a different story. He testified that
he had never seen Wige before and that when the officers
showed him the photographic lineup, he told them the shooter
was not among those included. Torres further testified that he
circled Wige’s photograph and wrote a statement purporting
to identify Wige as the shooter only because the officers
pressured him into doing so after several hours of
interrogation. Officer Bellows denied having exerted any
pressure on Torres and suggested that Torres’s newfound
reluctance to finger Wige was the product of a recent death
threat from one of Wige’s fellow gang members.

    At the conclusion of the preliminary hearing, Wige
moved to dismiss the attempted murder charge for lack of
probable cause. The state court rejected Wige’s arguments
and bound him over for trial, offering the following
explanation: “There are issues in the case. I think most of
the issues you addressed are really for the jury to decide; not
the Court at the preliminary hearing.” A jury subsequently
acquitted Wige of the attempted murder charge after hearing
testimony from Officer Bellows and from Torres, whose trial
               WIGE V . CITY OF LOS ANGELES                    5

testimony largely tracked what he said at the preliminary
hearing.

    Now back to this action. The district court granted
summary judgment for defendants on the ground that the state
court’s probable cause finding is entitled to preclusive effect
and bars Wige from relitigating the issue of probable cause.
The court accepted defendants’ argument that, by finding
probable cause in the face of Officer Bellows’s and Torres’s
conflicting testimony, the state court necessarily found
Officer Bellows credible and Torres not credible. Neither the
district court nor defendants ever identified where in the
preliminary hearing record the state court purported to make
this credibility determination.

     To assess whether the district court’s preclusion ruling is
correct, we look to state law. Federal courts must give
“preclusive effect to state-court judgments whenever the
courts of the State from which the judgments emerged would
do so.” Allen v. McCurry, 449 U.S. 90, 96 (1980); see
28 U.S.C. § 1738. In California, issue preclusion applies
when five requirements are met: (1) the issue sought to be
relitigated must be identical to the issue decided in the earlier
action; (2) the issue must have been actually litigated and
(3) necessarily decided in the earlier action; (4) the earlier
decision must be final and made on the merits; and (5) the
party against whom issue preclusion is asserted must have
been a party to the earlier action or in privity with such a
party. Lucido v. Superior Court, 795 P.2d 1223, 1225 (Cal.
1990). As a general rule, each of these requirements will be
met when courts are asked to give preclusive effect to
preliminary hearing probable cause findings in subsequent
civil actions for false arrest and malicious prosecution.
6                WIGE V . CITY OF LOS ANGELES

McCutchen v. City of Montclair, 87 Cal. Rptr. 2d 95, 99–101
(Ct. App. 1999).1

     In particular, the identity-of-issues requirement will
generally be satisfied because in most cases the issue resolved
at the preliminary hearing is identical to the issue that must be
resolved in a false arrest or malicious prosecution
action—namely, whether the evidence supports a finding of
probable cause. “The quantum of evidence required to
support a warrantless arrest is the same as the quantum of
evidence required to hold the defendant to stand trial.” Id. at
100. The test in both instances is whether the available
evidence would lead a reasonable person to harbor a strong
suspicion of the accused’s guilt. See People v. Campa,
686 P.2d 634, 638 (Cal. 1984) (arrest); People v. Uhlemann,
511 P.2d 609, 612 (Cal. 1973) (preliminary hearing). Thus,
so long as the evidence known to the arresting officers is not
materially different from the evidence presented at the
preliminary hearing, “a finding of sufficiency of the evidence
to require the defendant to stand trial is a finding of probable
cause to arrest the defendant.” McCutchen, 87 Cal. Rptr. 2d
at 100; see Haupt v. Dillard, 17 F.3d 285, 289 (9th Cir.
1994).

    If the evidence known to the arresting officers is
materially different from the evidence presented at the
preliminary hearing, however, the identity-of-issues


    1
   In so holding, McCutchen relied on our decision in Haupt v. Dillard,
17 F.3d 285, 289 (9th Cir. 1994), which construed Nevada law to the same
effect. A more recent California Court of Appeal decision, Schmidlin v.
City of Palo Alto, 69 Cal. Rptr. 3d 365, 395–96 (Ct. App. 2008), has
questioned the soundness of McCutchen. Given our resolution of this
case, we need not resolve any conflict between McCutchen and Schmidlin.
                 WIGE V . CITY OF LOS ANGELES                            7

requirement will not be met. That fact is reflected in two
exceptions California courts have recognized to the general
rule according preclusive effect to probable cause findings.
First, issue preclusion does not apply in false arrest actions
when additional evidence not available to the officers at the
time of arrest is presented at the preliminary hearing.
McCutchen, 87 Cal. Rptr. 2d at 100. A magistrate judge’s
finding of probable cause based on the testimony of two
witnesses, for example, obviously does not resolve whether
the officers had probable cause to arrest if only one witness
was available and known to them at the time of arrest. See id.
at 101; Haupt, 17 F.3d at 289.2

     Second, issue preclusion should be denied “where the
plaintiff alleges that the arresting officer lied or fabricated
evidence presented at the preliminary hearing.” McCutchen,
87 Cal. Rptr. 2d at 101; see also Awabdy, 368 F.3d at 1068.
In that circumstance, too, the identity-of-issues requirement
will not be met because the evidence available and known to
the arresting officers is different from the evidence presented
to the court. That the court found probable cause based on
the set of facts presented at the preliminary hearing obviously
does not resolve whether the officers had probable cause
based on the true set of facts known to them. McCutchen’s
fabricated evidence exception allows plaintiffs who can
establish that an officer lied or fabricated evidence to
relitigate the issue of probable cause with the falsified
evidence removed from the equation or, in cases involving


 2
   W ige’s case does not fall within this exception. The evidence available
at the time of W ige’s arrest was no different from the evidence presented
at his preliminary hearing. At both junctures, the State grounded probable
cause almost entirely on Torres’s purported identification of W ige as the
shooter.
8              WIGE V . CITY OF LOS ANGELES

intentional concealment of exculpatory evidence, with the
undisclosed evidence added back into the equation. See
Morley v. Walker, 175 F.3d 756, 760 (9th Cir. 1999) (similar
analysis in qualified immunity context).

     In our view, Wige’s case potentially falls within this latter
exception, and the district court therefore erred in granting
summary judgment to defendants on issue preclusion
grounds. Wige has raised a “genuine dispute,” Fed. R. Civ.
P. 56(a), as to whether Officer Bellows fabricated evidence
at the preliminary hearing by falsely testifying that Torres had
identified Wige as the shooter. Wige does not rely on mere
speculation that Officer Bellows fabricated evidence; he
relies on testimony under oath from Torres himself that the
officers pressured him into making a false identification.
That alleged fabrication plainly meets the materiality
threshold for defeating summary judgment on the merits: All
agree that a valid identification by Torres would support a
finding of probable cause, but that without his identification
probable cause would be absent.

    Whether Officer Bellows fabricated evidence at the
preliminary hearing is thus the key (and perhaps dispositive)
factual issue to be resolved in this action. Defendants
contend this issue was actually litigated and resolved against
Wige at the preliminary hearing as well, such that he should
be precluded from relitigating it here. According to
defendants, the state court must have determined that Officer
Bellows was telling the truth because otherwise it could not
have found probable cause to bind Wige over for trial.

   Defendants are correct that in some circumstances a
probable cause finding necessarily entails a rejection of
challenges raised to the veracity of the arresting officer. See,
               WIGE V . CITY OF LOS ANGELES                    9

e.g., Guenther v. Holmgreen, 738 F.2d 879, 884 (7th Cir.
1984). But in this case the state court never purported to find
either that Officer Bellows’s testimony was credible or that
Torres’s testimony was not. After hearing Wige’s arguments
against probable cause, the state court merely observed:
“There are issues in the case. I think most of the issues you
addressed are really for the jury to decide; not the Court at the
preliminary hearing.” Having heard the conflicting evidence,
the court did not decide whether Officer Bellows or Torres
was telling the truth; it decided only that a reasonable jury
could believe either one.

     That was all the state court needed to decide in order to
find probable cause. At the preliminary hearing, a court’s
role “is limited to determining whether a reasonable person
could harbor a strong suspicion of the defendant’s guilt, i.e.,
whether such a person could reasonably weigh the evidence,
resolve conflicts, and give or withhold credence to particular
witnesses in favor of harboring such a suspicion.” Cooley v.
Superior Court, 57 P.3d 654, 668 (Cal. 2002) (second
emphasis added). The state court therefore determined only
that a reasonable person could have believed Officer Bellows.
It did not (and did not have to) decide whether Officer
Bellows should be believed. That is the issue Wige seeks to
litigate in this action, and he is not barred by the doctrine of
issue preclusion from doing so.

    REVERSED and REMANDED.
