                                                                          FILED
                            NOT FOR PUBLICATION                             JUL 26 2013

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



                            FOR THE NINTH CIRCUIT


EARL A. HOBBS, an individual,                    No. 10-56302

              Plaintiff - Appellant,             D.C. No. 2:09-cv-06889-PA-FFM

       v.
                                                 MEMORANDUM*
CITY OF LONG BEACH, a Municipality;
GARY BURROUGHS, an Individual;
JAMES CLINTON SQUIRES, an
Individual,

              Defendants - Appellees.

                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                        Argued and Submitted July 10, 2013
                               Pasadena, California

Before: GRABER, FISHER and RAWLINSON, Circuit Judges.

      Earl Hobbs appeals the district court’s entry of summary judgment in favor

of the defendants on his 42 U.S.C. § 1983 malicious prosecution claim against the




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
City of Long Beach, City Auditor Gary Burroughs and Assistant City Auditor

James Squires. We affirm.

      1.     To prevail on a § 1983 claim of malicious prosecution, a plaintiff

must show that the defendants prosecuted him with malice and without probable

cause, that they did so for the purpose of denying him equal protection or another

specific constitutional right and that the prior proceedings terminated in such a

manner as to indicate his innocence. See Awabdy v. City of Adelanto, 368 F.3d

1062, 1066, 1068 (9th Cir. 2004). Here, Hobbs failed to establish a triable issue on

at least two of those elements – probable cause and favorable termination.

      Probable Cause. A grand jury indictment is prima facie evidence of

probable cause. See 5 B.E. Witkin, Summary of California Law, Torts § 483 (10th

ed. 2005); Restatement (Second) of Torts § 664(2) (1977). Here, a grand jury

indicted Hobbs on a charge of embezzlement by a public officer, so we presume

that he was prosecuted on probable cause. “Among the ways that a plaintiff can

rebut a prima facie finding of probable cause is by showing that the criminal

prosecution was induced by fraud, corruption, perjury, fabricated evidence, or

other wrongful conduct undertaken in bad faith.” Awabdy, 368 F.3d at 1067; see

also Restatement (Second) of Torts § 663 cmt. h.




                                          2
      To rebut the prima facie presumption of probable cause here, Hobbs argues

that Squires and Burroughs supplied false information to the prosecutor and the

grand jury regarding the confidentiality and value of the documents he

appropriated. On the evidence Hobbs has produced, however, no reasonable jury

could find that Squires or Burroughs committed fraud, fabricated evidence or

otherwise engaged in wrongful conduct undertaken in bad faith.

      Moreover, the existence of probable cause is confirmed by the California

Court of Appeal’s decision in Hobbs I, as Hobbs’ counsel largely conceded, except

as to the issue of value of the documents. In Hobbs I, the parties fully and fairly

litigated the issue of probable cause, resulting in the court of appeal’s holding that

“the evidence before the grand jury was sufficient to support a charge of

embezzlement by a public officer.” People v. Hobbs, 2005 WL 1744957, at *5

(Cal. Ct. App. 2005). Again, Hobbs has presented no evidence from which a

reasonable jury could conclude that the court of appeal’s decision hinged on

fabricated evidence or other wrongful conduct. See Awabdy, 368 F.3d at 1068.

      Hobbs’ argument that probable cause was lacking on the value of the

documents is without merit. Even assuming that the documents might at some

point have been subject to disclosure under the Public Records Act, they were

confidential when Hobbs appropriated them. Their value at that time indisputably


                                           3
exceeded $400, whether measured by the resources the city expended to obtain

them, the value to the city of the right to their exclusive use or their value to

Hobbs, who used them in a private effort to obtain millions of dollars in attorney’s

fees.

        Favorable Termination. A prosecution ends favorably when it “tends to

indicate the innocence of the accused.” Jaffe v. Stone, 114 P.2d 335, 338 (Cal.

1941). “When the proceeding terminates other than on the merits, the court must

examine the reasons for termination to see if the disposition reflects the opinion of

the court or the prosecuting party that the action would not succeed.” Sierra Club

Found. v. Graham, 85 Cal. Rptr. 2d 726, 734 (Ct. App. 1999).

        Here, Hobbs has failed to establish a triable issue of favorable termination,

regardless of whether termination of the prosecution is viewed as the California

Court of Appeal’s decision in Hobbs II or as the prosecutor’s decision not to re-try

Hobbs. First, Hobbs II did not, as Hobbs argues, determine his innocence or hold

that there was insufficient evidence to support a conviction. Hobbs II simply

reversed Hobbs’ conviction for instructional error, leaving Hobbs’ guilt or

innocence to be determined on remand. See People v. Hobbs, 2008 WL 570796

(Cal. Ct. App. 2008). Second, no reasonable jury could find that the prosecutor, in

choosing not to re-try Hobbs, believed that Hobbs was innocent or could not be


                                            4
convicted. There was, at minimum, “a residue of doubt” about Hobbs’ innocence.

Sierra Club Found., 85 Cal. Rptr. 2d at 734.

      2.     The district court properly granted summary judgment on Hobbs’

claims against the city. A local government may be held liable under § 1983 when

(1) implementation of its official policies or established customs inflicts the

constitutional injury or (2) the individual who committed the constitutional tort

was an official with final policymaking authority or such an official ratified a

subordinate’s unconstitutional decision or action and the basis for it. See Clouthier

v. Cnty. of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010). Neither theory

applies here. First, although Hobbs contends the city is liable because of

its alleged history of retaliation against whistleblowers, he has presented no

evidence that such a policy existed. Second, even assuming that Burroughs was a

policymaking official, the city is not liable for Burroughs’ actions because, as

explained above, Burroughs did not violate Hobbs’ constitutional rights.

      3.     Finally, the district court did not abuse its discretion by denying

Hobbs’ motion under former Federal Rule of Civil Procedure 56(f). See Garrett v.

City of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987).

      AFFIRMED.




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