                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 14 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DANIEL CARLOS GARCIA,                           No.    17-16883

                Plaintiff-Appellant,            D.C. No. 3:10-cv-02424-SI

 v.
                                                MEMORANDUM*
CITY OF SANTA CLARA; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                     Susan Illston, District Judge, Presiding

                             Submitted June 11, 2019**
                             San Francisco, California

Before: GOULD, IKUTA, and R. NELSON, Circuit Judges.

      Daniel Garcia appeals the district court’s order granting summary judgment

to Santa Clara police officers on his 42 U.S.C. § 1983 unlawful arrest and use of

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

1.    The district court did not err by granting summary judgment to the officers


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
on Garcia’s unlawful arrest claims. Santa Clara police officers had probable cause

to arrest Garcia on suspicion of violating California Penal Code § 602(o), which

makes it a misdemeanor to “[r]efus[e] or fail[] to leave” property “not open to the

general public.” Garcia contends that officers had no probable cause to arrest him

under this statute because hotels are open to the general public. See In re Cox, 3

Cal. 3d 205, 216 (1970). He argues that the applicable statute is California Penal

Code § 602.1, which makes it a misdemeanor to “intentionally interfere[] with any

lawful business” in places “open to the public.”

      We reject Garcia’s argument that California Penal Code § 602(o) does not

apply. A hotel room—to which access is controlled by a registration process and a

key—is not open to the general public as that term is used in California Penal Code

§ 602(o).1 Summary judgment was proper because the officers had probable cause

to arrest Garcia under § 602(o). See Yousefian v. City of Glendale, 779 F.3d 1010,

1014 (9th Cir. 2015) (“The absence of probable cause is a necessary element

of § 1983 false arrest and malicious prosecution claims.”).

      Even if Garcia were correct that California Penal Code § 602.1 should be

considered to be the controlling and applicable statute, summary judgment would



1
  We reject Garcia’s argument that the Unruh Act is irreconcilable with such a
holding, as the Unruh Act subjects violators to civil liability for arbitrary
discrimination. California Civil Code § 51 et seq. Section 602(o) does not imbue
a hotel owner with a right to arbitrarily and discriminatorily evict a paying tenant.

                                          2
still be proper. The officers knew that there was a loud party in Garcia’s hotel

room and that the occupants had refused to quiet down even after hotel security

asked them to do so. The officers also knew that the occupants had refused to

leave the hotel when hotel security told them they were evicted. These facts,

combined with the officers’ impressions when they arrived at the scene, are

sufficient to establish probable cause that Garcia was trespassing under California

Penal Code § 602.1. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (holding

that when the facts known to the officer provide probable cause to arrest for an

offense, the officer’s “subjective reason for making the arrest need not be the

criminal offense as to which the known facts provide probable cause”).

      Finally, we note that even if officers did not have probable cause to arrest

Garcia under either statute, summary judgment would still have been proper

because the officers are entitled to qualified immunity. At minimum, the officers

had a reasonable belief that there was probable cause to arrest Garcia under

§ 602(o). Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011). Even

if a trespassing conviction under § 602(o) would have ultimately been

unsuccessful, there was no clearly established law to alert the officers that Garcia

could not have been trespassing under the circumstances. See Blankenhorn v. City

of Orange, 485 F.3d 463, 476 (9th Cir. 2007).

2.    The district court did not err by granting summary judgment to defendants


                                          3
on Garcia’s excessive force claim relating to Garcia’s arrest in the hotel hallway.

Under the Fourth Amendment, police officers making an arrest can use only an

amount of force that is objectively reasonable under the circumstances. Tennessee

v. Garner, 471 U.S. 1, 7–8 (1985). To determine whether the force used in any

given circumstance was reasonable, the court must balance “‘the nature and quality

of the intrusion on the individual’s Fourth Amendment interests’ against the

countervailing government interests at stake.” Graham v. Connor, 490 U.S. 386,

396 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 8 (1968)). Here, the undisputed

facts show that Garcia resisted arrest and attempted to punch and kick the officers

while the officers were trying to subdue him. The relatively mild force that was

used by law enforcement, which included a leg sweep, control holds, and a punch

to the face, was reasonable under the circumstances. Apart from Officer Lange’s

reasonable use of force to pull Garcia into the hallway, all other force used was in

direct response to Garcia’s efforts to resist arrest.

3.    Because the district court properly concluded that the officers had probable

cause to arrest Garcia, Garcia’s argument that we must vacate the jury’s verdict on

his remaining use of force claims necessarily fails.

      AFFIRMED




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