                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 13 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

EDMOND OVASAPYAN,                                No. 09-55798

             Plaintiff - Appellee,               D.C. No. 2:08-cv-00194-CAS-JWJ

  v.
                                                 MEMORANDUM*
ARTHUR FRANK; IAN GRIMES,

             Defendants - Appellants,

CITY OF GLENDALE; MATTHEW
IRVINE,

              Defendants.



EDMOND OVASAPYAN,                                No. 09-55990

             Plaintiff - Appellant,              D.C. No. 2:08-cv-00194-CAS-JWJ

  v.

ARTHUR FRANK; IAN GRIMES,

             Defendants - Appellees,

  and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
CITY OF GLENDALE, MATTHEW
IRVINE,

             Defendants.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                     Argued and Submitted December 6, 2010
                              Pasadena, California

Before: TROTT and WARDLAW, Circuit Judges, and BREWSTER, Senior
District Judge.**


      A jury found that two Glendale, California, police officers, Detective Arthur

Frank and Lieutenant Ian Grimes (the “Officers”), unlawfully arrested and caused

the malicious prosecution of Edmond Ovasapyan. The district court denied the

Officers’ motion for judgment as a matter of law, finding that sufficient evidence

supported the jury’s verdict. The district court also denied the Officers qualified

immunity on both claims, ruling that a reasonable officer would know that the

conduct in which they engaged was unlawful. During the punitive damages phase

of the trial, the district court quashed subpoenas issued to members of the Glendale



       **
             The Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.

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City Council. The subpoenas were presumably issued for the purposes of eliciting

testimony regarding potential indemnification of the Officers by the City of

Glendale. The Officers appeal the district court’s denial of their motion for

judgment as a matter of law, and Mr. Ovasapyan appeals the district court’s

quashal of the subpoenas. We affirm.

A.    The District Court Properly Denied the Officers’ Motion for Judgment
      as a Matter of Law

      Denial of a renewed motion for judgment as a matter of law is reviewed de

novo. Gilbrook v. City of Westminster, 177 F.3d 839, 864 (9th Cir. 1999). “A

jury’s verdict must be upheld if it is supported by substantial evidence, which is

evidence adequate to support the jury’s conclusion, even if it is also possible to

draw a contrary conclusion.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).

      The evidence presented at trial sufficiently supported the jury’s finding that

the Officers lacked probable cause to arrest Mr. Ovasapyan. The evidence

presented at trial also supported the jury’s finding that the Officers misled the

prosecutor and withheld exculpatory information from her.

      “When a police officer asserts qualified immunity, we apply a two-part

analysis.” Torres v. City of Los Angeles, 548 F.3d 1197, 1210 (9th Cir. 2008).

The first question is whether “the officer’s conduct violated a constitutional right.”



                                          -3-
Saucier v. Katz, 533 U.S. 194, 201 (2001). The second question is whether the

right was “clearly established.” Id. at 202. In determining whether a right was

“clearly established,” the court considers whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted. Id. The first

question is one of fact, while the second is a question of law. Tortu v. Las Vegas

Metropolitan Police Dept., 556 F.3d 1075, 1085 (9th Cir. 2009).

      It is clear to a reasonable officer that omitting material, exculpatory

information from reports submitted to a district attorney, as the jury found the

Officers did in this case, constitutes unlawful conduct. Awabdy v. City of

Adelanto, 368 F.3d 1062, 1067-68 (9th Cir. 2004).

      Qualified immunity is appropriate when a reasonable officer could have

believed that probable cause existed to arrest a plaintiff. Franklin v. Fox, 312 F.3d

423, 437 (9th Cir. 2002) (internal quotations omitted). Mrs. Shahnazari

unequivocally stated that Mr. Ovasapyan was not one of the perpetrators, though

she said that he bore a strong resemblance thereto. The totality of the remaining

evidence did not compensate for Mrs. Shahnazari’s non-identification. It was not

reasonable for the Officers to believe they had probable cause to arrest Mr.

Ovasapyan.




                                         -4-
B.    The District Court Did Not Abuse its Discretion By Quashing
      Subpoenas Issued to Members of the Glendale City Council

      A decision to quash a civil subpoena is reviewed for abuse of discretion,

Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 813 (9th Cir. 2003), as are

evidentiary rulings, Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.

2004). The district court did not abuse its discretion by finding that purely

speculative testimony regarding the possibility that the City of Glendale might

choose to indemnify the Officers against punitive damages pursuant to California

Government Code § 825(b) was irrelevant, even after the Officers’ testified about

their personal financial status. Both Bell v. Clackamas County, 341 F.3d 858 (9th

Cir. 2003), and Lawson v. Trowbridge, 153 F.3d 368 (7th Cir. 1998) are

distinguishable because those cases considered mandatory indemnification statutes.

Allegations of shadowy sources inside the Glendale City Council, with no further

offer of proof, did not support the plaintiff’s request.

      AFFIRMED.




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