NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 15 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOMINIQUE EVANS, AKA Dominique No. 21-55406 Evans-Franks, an individual; DARRYL JOHNSON, an individual, D.C. No. 2:20-cv-02504-FLA-AS Plaintiffs-Appellants,

v. MEMORANDUM*

COUNTY OF LOS ANGELES, a municipal entity; et al.,

Defendants-Appellees,

and

DOES, 1-50, inclusive,

Defendant.

DOMINIQUE EVANS, AKA Dominique No. 21-55503 Evans-Franks, an individual; DARRYL JOHNSON, an individual, D.C. No. 2:20-cv-02504-FLA-AS Plaintiffs-Appellees,

v.

COUNTY OF LOS ANGELES, a municipal entity; et al.,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants-Appellants,

and

CITY OF PASADENA, a municipal entity; et al.,

Defendants.

Appeal from the United States District Court for the Central District of California Fernando L. Aenlle-Rocha, District Judge, Presiding

Argued and Submitted August 4, 2022 Pasadena, California

Before: CALLAHAN and H. THOMAS, Circuit Judges, and HUMETEWA,** District Judge.

In the early hours of June 21, 1997, Dominique Evans was slapped at a party

by a gang member after she had accused the partygoers of stealing her CDs. Later

in the night, another member of that gang, Johnis Jackson, was shot and killed.

There was considerable speculation that Darryl Johnson, who was Evans’

boyfriend and a member of a rival gang, had shot Jackson in retaliation. But it was

not until 2013 that officials believed they had enough evidence to arrest Evans and

Johnson (Plaintiffs) for Jackson’s murder. Probable cause hearings were held in

** The Honorable Diane J. Humetewa, United States District Judge for the District of Arizona, sitting by designation.

2 2013 and 2016, and Plaintiffs were bound over for trial. At the end of a second

trial, Plaintiffs were acquitted by a jury.

Plaintiffs then brought this section 1983 action for malicious prosecution for

being bound over for trial. The district court granted summary judgment for

Defendants, finding that Plaintiffs’ challenge to the state court’s probable cause

determination was barred by collateral estoppel and, even excluding the testimony

that Plaintiffs claimed was knowingly false, there had been probable cause to bind

Plaintiffs over for trial. Plaintiffs timely appeal, we have jurisdiction, and we

affirm.

Plaintiffs assert that knowingly false testimony by witnesses and misconduct

by detectives raised material issues of fact that should be decided by a jury.

1. Plaintiffs’ claims of malicious prosecution are barred by collateral

estoppel. The absence of probable cause is a necessary element of a § 1983

malicious prosecution claim. Yousefian v. City of Glendale, 779 F.3d 1010, 1014

(9th Cir. 2015). Under California law, a party asserting collateral estoppel must

establish identical issues, actual litigation of the issue, the necessity of the issue for

the disposition of the former proceeding, a final determination of the issue, and

privity. Lucido v. Superior Court, 51 Cal. 3d 335, 341 (1990). Here, the district

court found that each of the five elements had been satisfied.

3 Plaintiffs do not seriously challenge this determination but assert that

collateral estoppel does not apply where the preliminary hearing decision was

based on fabricated evidence and wrongful conduct by Defendants. The district

court recognized the false evidence exception to collateral estoppel, but also noted

the exception to that exception. Greene v. Bank of Am., 236 Cal. App. 4th 922, 933

(2015) (If the “plaintiff challenges that evidence at the preliminary hearing as

being false, and the magistrate decides the credibility issue in the arresting officer’s

favor, then collateral estoppel still may preclude relitigation of the issue in a

subsequent civil proceeding involving probable cause”). The district court then

recognized the state court’s statement that it had found probable cause based on

Detective Rodriguez’s testimony and his interviews with Mr. Howard, and not on

the recanted and challenged testimony of other witnesses. Accordingly, Plaintiffs

are collaterally estopped from litigating whether this evidence—which they have

not challenged—was sufficient to establish probable cause.

2. Even if Plaintiffs’ claims were not barred by collateral estoppel, Plaintiffs

have not shown that there are material issues of fact that should have been

determined by a jury. Probable cause is not a high bar: it “exists when, under the

totality of the circumstances known to the arresting officers, a prudent person

would have concluded that there was a fair probability that [the defendant] had

committed a crime.” United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999)

4 (alteration in original) (quoting United States v. Garza, 980 F.2d 546, 550 (9th

Cir.1992)). Here, the evidence presented at the probable cause hearings, even

excluding the alleged false testimony by certain witnesses, created a “fair

probability” that Plaintiffs were responsible for Jackson’s murder. Numerous

witnesses testified that Evans had been slapped, was upset, and threatened

retaliation. The rumors that Evans was involved were corroborated by Howard’s

assertion that he had seen her drive by just before Jackson was shot. Jackson was

shot with .40 caliber bullets, ammunition of the same caliber was found in

Johnson’s home, and there was evidence that Johnson possessed a .40 caliber

Glock handgun. Although some witnesses subsequently recanted their testimony,

Plaintiffs have not shown that a reasonable jury could have found that the untainted

evidence did not establish a “fair probability” that Plaintiffs committed the crime.

3. Plaintiffs’ remaining contentions lack merit. Plaintiffs object to the

admission at the probable cause hearing of certain evidence as falling within

exceptions to California’s hearsay rule, but this objection was not briefed, and is

contrary to the rule that hearsay evidence is generally admissible at probable cause

hearings if it is “legally sufficient and reliable.” Franklin v. Fox, 312 F.3d 423,

438 (9th Cir. 2002). Also, Plaintiffs’ argument that they have not waived their

cause of action under California Civil Code section 52.1 does not survive a

determination that there was probable cause to detain them. Similarly, their

5 arguments concerning municipal liability fail if there is no underlying violation of

their constitutional rights.1

The County of Los Angeles and others filed a cross-appeal but opted not to

proceed with it. The cross-appeal is dismissed. The district court’s grant of

summary judgment in favor of Defendants is AFFIRMED.

1 Plaintiffs’ motion to file a corrected reply brief is granted and their motion to supplement/correct the record is denied. (Dkt, No. 58).

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