NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL HOLLAND, No. 21-16004
Plaintiff-Appellant, D.C. No. 19-cv-02545-SI
v. MEMORANDUM*
ALLIED UNIVERSAL SECURITY SER-
VICES AND MARK HANKINS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted July 29, 2022**
San Francisco, California
Before: GRABER and OWENS, Circuit Judges, and BAKER,*** International Trade
Judge.
*
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).
***
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
Late at night, private security guards (“the guards”) detected Paul Holland and
another man and their vehicles just outside a fenced mall construction site, asked
them to leave, and continued their patrol. Later, the guards found the men gone, but
observed the vehicles still there, the construction site’s security gate open with the
lock severed, and bolt cutters on the front seat of one of the vehicles. The guards
called the police and relayed all this information to them when they arrived.
When Holland and the other man then approached the vehicles, one guard told
the police that he had seen them come out of the closed mall, and the other guard
identified them as the men he had seen earlier near the two vehicles. In ensuing
searches, the police discovered a headlamp in Holland’s pocket, a cart filled with
stolen tools just next to the gate with the cut lock, and two industrial-strength bolt
cutters in Holland’s vehicle. Although the men claimed that they had been elsewhere
rather than inside the site, the police arrested them. The district attorney charged
them with multiple crimes but later dropped the charges.
Holland then sued both the police and one of the guards and his employer in
this 42 U.S.C. § 1983 action. The district court granted summary judgment to the
police and the private defendants on Holland’s malicious prosecution claim because
2
the police had probable cause.1 Holland timely moved for reconsideration under
Rule 60(b)(1) as to his claim against the private defendants, which the district court
denied. Holland then timely appealed.
1. Holland’s notice of appeal designates only the order denying his motion for
reconsideration. His brief, however, states that he “appeals from the District Court’s
findings of fact and conclusions of law entered on March 24, 2021”—the summary
judgment decision.2 Appellees insist that an appeal from an order denying reconsid-
eration cannot encompass the summary judgment decision.
Under the version of Federal Rule of Appellate Procedure 3 in effect when
Holland appealed,3 “[w]hen a party seeks to argue the merits of an order that does
not appear on the face of the notice of appeal, we consider: (1) whether the intent to
appeal a specific judgment can be fairly inferred and (2) whether the appellee was
prejudiced by the mistake.” Havensight Cap. LLC v. Nike, Inc., 891 F.3d 1167, 1171
(9th Cir. 2018). “Intent” may be reasonably inferred from a party’s brief, and when
the appellant’s brief fully discusses an order, the appellee has notice and an
1
“The absence of probable cause is a necessary element of § 1983 . . . malicious
prosecution claims.” Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir.
2015).
2
Holland’s challenge to the district court’s summary judgment decision in his brief
is limited to his claim against the private defendants.
3
An amendment to Rule 3 took effect December 1, 2021. We need not decide
whether the amendment applies, as it effectively codified our decisions on this issue.
3
opportunity to respond, and thus is not prejudiced. West v. United States, 853 F.3d
520, 524 (9th Cir. 2017); see also Lolli v. County of Orange, 351 F.3d 410, 414–15
(9th Cir. 2003).
Because Holland’s brief discusses the summary judgment decision, his timely
appeal from the denial of his motion for reconsideration encompasses that decision.
We review the summary judgment decision de novo and the denial of reconsidera-
tion for an abuse of discretion. Lolli, 315 F.3d at 414.
2. Holland argues that the guards could not have seen him come out of the
mall because he claims he was elsewhere and argues that the police approached and
questioned him due to allegedly false statements relayed to them.
Holland does not, however, challenge the district court’s determination that
probable cause independently existed to arrest the men even if the guards did not
witness them leaving the mall. It is undisputed that the guards correctly identified
Holland as one of the men who had been seen with the vehicles containing the bolt
cutters. The allegedly false statement was not the “cause” of his arrest; therefore, his
malicious prosecution claim against Appellees fails. See Sullivan v. County of Los
Angeles, 527 P.2d 865, 871 (Cal. 1974) (“The test is whether the defendant was
actively instrumental in causing the prosecution.”) (cleaned up).
AFFIRMED.
4