NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT AUG 04 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JERRY LUM, individually and as No. 12-15979 successor in interest to Jeremy Lum and DOROTHEA TIMMONS, individually D.C. No. 2:10-cv-01807-LKK- and as successor in interest to Jeremy DAD Lum,

Plaintiffs - Appellees, MEMORANDUM*

v.

COUNTY OF SAN JOAQUIN; et al.,

Defendants - Appellants.

Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted July 9, 2014 San Francisco, California

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

Ray Walters, Steven Pease, Robert Davis, Felipe Mendoza, the County of

San Joaquin, and the City of Lathrop (collectively “Defendants”) appeal the district

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. court’s partial denial of their motion for summary judgment on the claims brought

by Jerry Lum and Dorothea Timmons (collectively “Plaintiffs”). Reviewing de

novo, see Liberal v. Estrada, 632 F.3d 1064, 1073 (9th Cir. 2011), we affirm in

part and dismiss in part.

1. We have jurisdiction to review the district court’s denial of qualified

immunity on the Fourth Amendment claim. See Mitchell v. Forsyth, 472 U.S. 511,

530 (1985); Huskey v. City of San Jose, 204 F.3d 893, 896 (9th Cir. 2000) (“Even

though the parties dispute some of the facts, this court has jurisdiction over the

legal question the individual defendants have raised regarding whether [Plaintiffs’]

version of the facts can sustain a claim that [Jeremy Lum’s] clearly established

constitutional rights ha[d] been violated.”). Viewing the evidence in the light most

favorable to Plaintiffs, Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082,

1087 (9th Cir. 2000), an officer could not have reasonably believed there was

probable cause to arrest Jeremy Lum under California Penal Code § 647(f), see

Knox v. Sw. Airlines, 124 F.3d 1103, 1107-08 (9th Cir. 1997).

2. We also have jurisdiction to review the district court’s denial of qualified

immunity on the Fourteenth Amendment claim. We disagree with the dissent’s

characterization of the district court’s decision as a merits decision. In its March

23, 2012 order addressing Defendants’ motion for summary judgment, the district

2 court stated that it addressed “all issues” in the motion, except whether any entity

had Monell liability. This is significant because Defendants’ motion specifically

and unambiguously claimed that they were entitled to qualified immunity on

Plaintiffs’ Fourteenth Amendment claim. The order described the law applicable to

Defendants’ claim of immunity, and then concluded that disputed issues fact

prevented it from granting summary judgment. True, the district court did not

analyze qualified immunity for the Fourteenth Amendment claim under a separate

heading, as it did in its analysis of the Fourth Amendment claim, but it is apparent

from the district court’s order that it reached all issues except Monell liability and

that its ruling on the Fourteenth Amendment issue encompassed Defendants’

qualified immunity argument. Perhaps most tellingly, in a second order dated June

8, 2012, the district court expressly acknowledged that it had denied qualified

immunity on Plaintiffs’ Fourteenth Amendment claim.

Viewing the evidence in the light most favorable to Plaintiffs, we affirm the

district court’s ruling. See Plumhoff v. Rickard, 134 S. Ct. 2012 (2014).

3. We have jurisdiction to review the district court’s denial of immunity

under California Government Code § 855.8. See Liberal, 632 F.3d at 1074;

Caldwell v. Montoya, 897 P.2d 1320, 1322 (Cal. 1995) (Immunity under the

California Tort Claims Act constitutes “immunity from suit.”). Section 855.8 does

3 not apply to either the wrongful death claim or the false arrest claim. Plaintiffs did

not allege a failure to diagnose. Rather, they claimed Jeremy Lum told Mendoza

that he was bipolar. See Johnson v. Cnty. of L.A., 191 Cal. Rptr. 704, 716-17 (Cal.

Ct. App. 1983).

4. We lack jurisdiction to rule on the Monell v. Dep’t of Soc. Servs., 436

U.S. 658 (1978) liability issue and the California Government Code § 820.2

immunity issue, which the district court did not decide before the case was stayed

pending this appeal. See 28 U.S.C. § 1291.

5. We lack jurisdiction to review the remainder of the issues appealed,

because they were merits decisions. See Liberal, 632 F.3d at 1074 (“Because the

officers appeal from an ordinary denial of summary judgment . . . as opposed to

denial of immunity, that section of the order is not an appealable final judgment

under [28 U.S.C.] § 1291.”). Moreover, these issues are not inextricably

intertwined with the immunity decisions we have jurisdiction to review. See

Huskey, 204 F.3d at 905 (“Inextricably intertwined” means “the appellate

resolution of the collateral appeal necessarily resolves the pendent claim[s].”).

AFFIRMED in part, DISMISSED in part.

4

FILED

Lum v. Cnty. of San Joaquin, No. 12-15979 AUG 04 2014

MOLLY C. DWYER, CLERK

N.R. SMITH, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

Our memorandum disposition represents the correct manner in which to

decide all of the issues therein except that part determining that we have

jurisdiction to decide the Fourteenth Amendment claim qualified immunity issues.

There is no question that the district court order only addressed the merits of the

Fourteenth Amendment question: The district court did not apply qualified

immunity standards. Thus, we cannot determine qualified immunity as to the

Fourteenth Amendment claims and should dismiss these claims. See Liberal v.

Estrada, 632 F.3d 1064, 1074 (9th Cir. 2011); Huskey v. City of San Jose, 204 F.3d

893, 905 (9th Cir. 2000). There is no precedent authorizing jurisdiction on the

basis that the district court believed it had decided an issue. One only has to review

the district court opinion to reach this conclusion.