                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 18 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LONNIE CRAIG PATTERSON,                         No.    16-16001

                Plaintiff-Appellant,            D.C. No.
                                                2:12-cv-01350-MCE-CKD
 v.

CITY OF YUBA CITY,                              MEMORANDUM*

                Defendant-Appellee.

                  Appeal from the United States District Court
                      for the Eastern District of California
                Morrison C. England, Jr., District Judge, Presiding

                           Argued November 16, 2017
                            San Francisco, California
                          Submitted September 14, 2018

Before: W. FLETCHER and PAEZ, Circuit Judges, and WILKEN,** District
Judge.

      Lonnie Patterson (“Patterson”) appeals the district court’s summary

judgment in favor of Defendant Yuba City on his claim for false arrest and

imprisonment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
      We review de novo a district court’s grant of summary judgment. See Frank

v. United Airlines, Inc., 216 F.3d 845, 849 (9th Cir. 2000). “Questions of claim

and issue preclusion are also reviewed de novo.” Id. at 849–50.

      We apply California’s law of collateral estoppel in assessing the preclusive

effect of a preliminary hearing determination of probable cause. See In re Bugna,

33 F.3d 1054, 1057 (9th Cir. 1994) (citing 28 U.S.C. § 1738). In the absence of

binding California Supreme Court precedent, we “must predict how the highest

state court would decide the issue using intermediate appellate court decisions,

among other sources of authority, as guidance.” McKown v. Simon Prop. Grp.

Inc., 689 F.3d 1086, 1091 (9th Cir. 2012) (internal quotation marks omitted).

      Although the California Supreme Court has yet to address this precise issue,1

the California courts of appeal have held that a preliminary hearing determination

“that there was sufficient evidence to hold the plaintiff over for trial may, in some

situations, preclude the plaintiff from relitigating the issue of probable cause to

arrest in a subsequent civil suit.” McCutchen v. City of Montclair, 73 Cal. App.

4th 1138, 1147 (1999) (citing Haupt v. Dillard, 17 F.3d 285, 290 (9th Cir. 1994));


1
  Citing McCutchen v. City of Montclair, 73 Cal. App. 4th 1138 (1999) and Greene
v. Bank of Am., 236 Cal. App. 4th 922 (2015), the California Supreme Court
denied our certification request. See Patterson v. Yuba City, 884 F.3d 838 (9th Cir.
2018). We therefore rely on McCutchen as a guide for how the California
Supreme Court would decide this case, rather than Schmidlin v. City of Palo Alto,
157 Cal. App. 4th 728 (2007), which did not involve a preliminary hearing
determination of probable cause.

                                           2
see also Greene v. Bank of Am., 236 Cal. App. 4th 922, 933–35 (2015). A

preliminary hearing determination of probable cause in California, however, will

not preclude a subsequent false arrest claim in the following circumstances: (1) the

plaintiff is able to “demonstrate that the issue of probable cause was not litigated at

the preliminary hearing for tactical reasons”; (2) the plaintiff has alleged that “the

arresting officer lied or fabricated evidence presented at the preliminary hearing”;

or (3) “the evidence presented at the preliminary hearing [was] not the same as the

evidence available to [the officers] at the time of plaintiff’s arrest.” McCutchen, 73

Cal. App. 4th at 1147.

      Patterson argues that the district court erroneously granted Yuba City

summary judgment on his false arrest claim because his preliminary hearing falls

within the first two exceptions recognized in McCutchen. We disagree. While

defendants rarely “take the stand at the preliminary examination” because of the

risks involved, Patterson has put forth no evidence suggesting that he did not

testify at the preliminary hearing or present other evidence for tactical reasons. 2

California Criminal Defense Practice § 41.12[8] (Matthew Bender ed., 2017). Nor

is there any other evidence suggesting that Patterson was unable to fully litigate the

issue of probable cause at the preliminary hearing for strategic considerations.

      Patterson’s argument that the testifying officer at the preliminary hearing

lied or fabricated evidence is similarly without merit. As we have said before,



                                           3
“mere speculation” that an officer fabricated evidence is insufficient to defeat

summary judgment in these circumstances. Wige v. City of Los Angeles, 713 F.3d

1183, 1186 (9th Cir. 2013). All Patterson has pointed to is that two officers, one

testifying and one not, differed in whether they personally saw Patterson answer

the front door with his gun raised. But this does not suggest fabrication. As Yuba

City points out, the two officers stood in completely different spots on the night in

question, which could have affected what they saw without making either account

false. This is a far cry from Wige, where a witness testified under oath that the

officers pressured him into lying at the preliminary hearing. 713 F.3d at 1186.

      Because Patterson fails to qualify for any of the exceptions outlined in

McCutchen, we conclude that the district court did not err in granting summary

judgment to Yuba City on Patterson’s false arrest and imprisonment claim. Given

this disposition, we do not address Yuba City’s remaining arguments.

      AFFIRMED.




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