                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAR 6 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ALLEN BERNARD SHAY,                             No.    17-55918

                Plaintiff-Appellant,            D.C. No.
                                                2:15-cv-04607-CAS-RAO
 v.

COUNTY OF LOS ANGELES; et al.,                  MEMORANDUM*

                Defendants-Appellees.

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

                      Argued and Submitted January 10, 2019
                               Pasadena, California

Before: TASHIMA and WATFORD, Circuit Judges, and ROBRENO,** District
Judge.

      Allen Shay appeals the District Court’s grant of summary judgment in favor

of the County of Los Angeles, Los Angeles County Sheriff’s Department, and

Deputy Christopher Derry. We have jurisdiction pursuant to 28 U.S.C. § 1291.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
      Shay alleges that Derry obtained a warrant for his arrest that was not

supported by probable cause and was obtained through judicial deception in

violation of the Fourth Amendment and 42 U.S.C. § 1983. The warrant was based

on Shay’s activities associated with fraudulent loan applications submitted by

Eddie Turner, Shay’s client and friend. Based on these alleged violations, Shay

also asserts that the Defendants falsely imprisoned him and violated the Tom Bane

Civil Rights Act, California Civil Code § 52.1. Shay further alleges that Derry

violated his Fourth Amendment rights by defaming him in a press statement

regarding his arrest. Finally, Shay contends that pursuant to the Defendants’

practice of moving to deny bail until a hearing can be convened in all felony fraud

cases, and Derry’s false statements made pursuant to this practice, Shay spent

eleven days in jail in violation of his Eighth and Fourteenth Amendment rights.

      The warrant for Shay’s arrest was supported by probable cause. The District

Court listed a myriad of reasons bolstering this conclusion. Shay v. Cnty. of Los

Angeles, No. 15-cv-4607, 2017 WL 4679268, at *7-8 (C.D. Cal. June 5, 2017).

Shay did not seriously contest any of the stated reasons except Derry’s conclusion

that Shay worked in concert with Turner and made materially false and misleading

representations. Id. at *8.




                                         2
      Having reviewed the record de novo,1 viewing the facts in the light most

favorable to Shay,2 disregarding Derry’s conclusory statement in the warrant

application that Shay acted in concert with Turner and made false and misleading

representations, and considering Derry’s alleged omissions from the warrant

application,3 we conclude that, separate from Turner, the record contains

“reasonably trustworthy information sufficient to warrant a prudent person in

believing that [Shay] had committed or was committing an offense.” United States

v. Delgadillo-Velasquez, 856 F.2d 1292, 1296 (9th Cir. 1988). As a result, no

rational factfinder could conclude that the neutral judge who issued the warrant did

not have a “substantial basis” to find that: (1) Turner had committed fraud; (2)

Shay had acted as Turner’s real estate broker; and (3) given the actions Shay took

in facilitating the fraudulent loan applications, Shay participated in the fraud. See

United States v. Castillo, 866 F.2d 1071, 1076 (9th Cir. 1988).



1
      See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601
(9th Cir. 2014).
2
      See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
3
       See Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995) (providing that to
maintain a judicial deception claim, the plaintiff must make a substantial showing
of a deliberate falsehood or reckless disregard for the truth and establish that,
without the dishonestly included or omitted information, the magistrate would not
have issued the warrant). Here, the warrant contains probable cause even without
the alleged falsehoods and with the alleged omissions.

                                           3
      Because probable cause existed for the arrest warrant and Derry did not

make any material misstatements or omissions in the warrant application, no

constitutional violation occurred in connection with the arrest. Therefore, the

District Court properly granted summary judgment in the Defendants’ favor on: (1)

Shay’s Fourth Amendment claims regarding the arrest, judicial deception claim,

and defamation-plus claim; (2) Shay’s Bane Act claim;4 and (3) Shay’s false

imprisonment claim.5

      However, genuine disputes over material facts preclude summary judgment

on Shay’s Eighth and Fourteenth Amendment claims concerning the allegedly

false declaration Derry submitted in support of a “1275 hold motion”6 which led to

Shay being incarcerated without access to bail.



4
       The statute requires a violation of a statutory or constitutional right, which,
in this case, Shay alleges are his Fourth Amendment rights. See Cal. Civ. Code
§ 52.1(b). In that Shay’s Fourth Amendment rights were not violated, he cannot
maintain a Bane Act claim.
5
      Under California law, false imprisonment requires confinement “without
lawful privilege.” Blaxland v. Commonwealth Dir. of Pub. Prosecutions,
323 F.3d 1198, 1205 (9th Cir. 2003). Because there was probable cause to arrest
Shay, Derry had the lawful privilege to detain him. Derry is also immune to this
claim under California Civil Code § 43.55 and California Penal Code § 847
because he lawfully arrested Derry pursuant to a warrant containing probable cause
and there is insufficient evidence that Derry acted with malice in doing so.
6
       A 1275 hold motion is an ex parte motion requesting that no bail funds be
accepted on the defendant’s behalf until a hearing is held to determine whether any
of the bail funds were obtained feloniously. See Cal. Penal Code § 1275.1.

                                           4
      In order to hold Shay without bail, Derry submitted a declaration with the

1275 motion providing: “[a]fter a review of the facts in this matter, I believe that

the defendant has had access to significant amounts of monies feloniously obtained

from theft.” However, Derry was aware that any allegedly feloniously obtained

funds received by Shay were relatively small (around $50,000) and obtained seven

years previously. Derry performed no additional investigation into the likelihood

that Shay possessed such funds at the present time. Instead, Derry testified that he

signed the declaration because it was a countywide “standard practice to request a

bail hearing in felony theft cases,” regardless of the circumstances. Derry was

required under California law to set forth probable cause that the bail money was

feloniously obtained. Cal. Penal Code § 1275.1(b)(1). We conclude that under

these circumstances, a reasonable jury could find that Derry failed to follow this

law and submitted the declaration and deprived Shay of bail with deliberate

indifference to or reckless disregard for Shay’s rights. See Tatum v. Moody, 768

F.3d 806, 820-21 (9th Cir. 2014).

      We further conclude that summary judgment is inappropriate regarding

Shay’s associated municipal liability claim under Monell v. Department of Social

Services of the City of New York, 436 U.S. 658 (1978). Shay contends, inter alia:

(1) that Derry, with deliberate indifference, deprived him of his Eighth and

Fourteenth Amendment rights by submitting the declaration in support of the 1275


                                          5
motion; and (2) that the moving force behind this deprivation was the countywide

long-standing practice of filing boilerplate 1275 motions in all felony fraud cases.

See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). Having found

factual issues regarding the prerequisite constitutional violation, we further

conclude that Derry’s testimony about the countywide practice generates a genuine

dispute of material fact concerning the existence of a long-standing municipal

practice that drove the alleged constitutional violations.

      Because no reasonable factfinder could conclude that the arrest warrant

lacked probable cause or contained material misstatements or omissions, we affirm

the District Court’s grant of summary judgment in favor of the Defendants on

Shay’s Fourth Amendment claims, Bane Act claim, and false imprisonment claim.

However, we reverse the District Court’s grant of summary judgment regarding

Shay’s Eighth and Fourteenth Amendment claims associated with Derry’s

submission of the declaration in support of the 1275 motion and Shay’s subsequent

incarceration for eleven days without bail or the legitimate consideration of bail.

We remand for further proceedings consistent with this decision. The parties shall

bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




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