FILED
NOT FOR PUBLICATION
JAN 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ZELAYA, No. 13-56698
Plaintiff - Appellant, D.C. No. 2:12-cv-07660-ABC-
FFM
v.
COUNTY OF LOS ANGELES, a public MEMORANDUM*
entity; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted December 8, 2015
Pasadena, California
Before: GOULD and BERZON, Circuit Judges, and STEEH,** Senior District
Judge.
Plaintiff Jose Zelaya appeals summary judgment for defendants on his 42
U.S.C. § 1983 and state law claims for false arrest and assault and battery arising
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
out of his arrest for child molestation. We affirm in part and reverse in part.
1. Probable cause existed for Plaintiff’s arrest for child molestation under
California Penal Code § 288(c)(1) based on the specific and detailed accusations
by Plaintiff’s foster daughter, which the arresting officers investigated, and which
her siblings stated she had reported to them. See John v. City of El Monte, 515
F.3d 936, 940–41 (9th Cir. 2007). That the arresting officers had contrary
information as well from her relatives does not detract from the existence of
probable cause. See, e.g., Ramirez v. City of Buena Park, 560 F.3d 1012, 1023– 24
(9th Cir. 2009). Thus, the district court properly granted summary judgment in
favor of defendants Janet Ramirez, Ruben Macias, and Dana Chemintzer, on the §
1983 and state law false arrest claims.
2. The individual Defendants are entitled to qualified immunity because
there was no precedent forbidding the use of a child sexual assault victim’s
uncorroborated accusations to establish probable cause. See Stoot v. City of
Everett, 582 F.3d 910, 922 (9th Cir. 2009); City of El Monte, 515 F.3d at 940–41.
Reasonable officers could at least disagree as to the legality of the arrest. See
Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011) (per curium).
3. Plaintiff waived the issue whether the arrest required exigent
circumstances because it was in his home, as he did not raise it in the district court
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and factual development would be necessary to resolve the issue. United States v.
Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005) (per curium).
4. No Monell liability exists for the defendant County of Los Angeles
(“County”) based upon the false arrest claim. Probable cause existed for the arrest,
and no unconstitutional policy or custom was the moving force behind the arrest.
See Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004). No Monell liability exists
for the County as to the assault and battery claim, as Plaintiff failed to establish
that the County has an unconstitutional custom or policy of beating suspected child
molesters. We reject Plaintiff’s theory that the County ratified the conduct of the
officers who allegedly assaulted him at the Twin Towers jail, as no evidence exists
that a person with final policymaking authority approved the officers’ conduct or
adopted it as official policy. See Clouthier v. Cty. of Contra Costa, 591 F.3d 1232,
1253 (9th Cir. 2010); Gillette v. Delmore, 979 F.2d 1342, 1349–50 (9th Cir. 1992).
5. We reverse the summary judgment on the state law assault and battery
claim against the County. Plaintiff’s deposition testimony and affidavit regarding
his alleged prison assault raised a triable issue of fact. Plaintiff is not required to
identify his attackers by name in order to establish vicarious liability against the
County. See C.A. v. William S. Hart Union High Sch. Dist., 270 P.3d 699, 706
(Cal. 2012); Perez v. City of Huntington Park, 9 Cal. Rptr. 2d 258, 260–61(Cal. Ct.
3
App. 1992).
6. Upon remand, having properly granted summary judgment on all federal
claims, the district court, in its discretion, may decide whether or not to continue
jurisdiction over the supplemental state law assault and battery claim, or dismiss it
without prejudice pursuant to 28 U.S.C. § 1367(c)(3).
For the reasons stated above, we affirm the district court’s grant of summary
judgment on the § 1983 claims and state law false arrest and imprisonment claim.
We reverse the district court’s grant of summary judgment for the County on the
state law assault and battery claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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