NOT FOR PUBLICATION FILED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.

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