Resek

MEMORANDUM *

Officer Mark Wersching arrested Edward Resek for shouting abusive comments at police, and Resek sued, alleging deprivation of constitutional rights under 42 U.S.C. § 1983 and numerous state law violations. Defendant Wersching now interlocutorily appeals the district court’s partial grant of summary judgment in favor of plaintiff Resek on his claim that he was arrested without probable cause in violation of the Fourth and Fourteenth Amendments. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. As the parties are familiar with the facts and procedural history of this case, we will not detail them here except as necessary.

Wershing now argues that he had probable cause to arrest under Cal. Penal C. §§ 148 and 415; 1 Resek counters that any § 415 arguments are waived because they were not raised in opposition to his motion for summary judgment. The district judge apparently addressed § 415 sua sponte. While failure to raise an issue in opposition to summary judgment can con *59 stitute waiver, see Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 655-56 (9th Cir.1984), an appellate court can “exercise [its] discretion to consider a waived issue when the…