ROBERT FRANK, Colonel v. CITY OF HENDERSON and JEFFREY FARLEY, Sergeant

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT FRANK, Colonel,
Plaintiff-Appellant,
and
TIM STEBBINS,
Plaintiff,
v.
CITY OF HENDERSON and JEFFREY
FARLEY, Sergeant,
Defendants-Appellees.
No. 16-16531
D.C. No.
2:12-cv-01988-JAD-NJK
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted February 14, 2018
San Francisco, California
FILED
MAY 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,** District Judge.
Robert Frank appeals the district court’s grant of summary judgment of
dismissal of the complaint in favor of the City of Henderson and Sergeant Jeffrey
Farley on Frank’s claims for malicious prosecution under 42 U.S.C. § 1983,
against Farley; and malicious prosecution under Nevada State law, against the City
of Henderson and Farley. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court did not err by granting summary judgment on the basis
that the undisputed facts show that Farley had probable cause to submit the warrant
affidavits. Probable cause existed to arrest Frank for violation of Nevada Revised
Statutes § 207.280 (false reporting of crimes). Frank’s police report was based on
the Homeowners Association (“HOA”) Board’s adoption of a resolution providing
that excess membership dues from 2007 would be rolled over to offset 2008
membership dues, without prior community approval. The police report contained
false allegations. First, Frank alleged that the Board received a tax research
memorandum which determined that “IRS Ruling [70-604] was improperly applied
because [the Board] did not either refund the excess assessments or apply it to
** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
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reducing the next year’s membership assessments.” Quite to the contrary, the tax
research memorandum actually concluded that “the Association is acting within the
intent and substance of Revenue Ruling 70-604 by having the Board of Directors
make the annual election.” Second, Frank alleged that the tax research
memorandum “recommended both the members AND the Directors approve the
election method for returning excess/surplus assessment income to the
members/unit owners.” However, the tax research memorandum concluded that
the HOA Board had the legal authority to elect to reimburse the excess dues
without approval from the HOA members. Third, Frank alleged that the Board had
not attempted to refund the 2007 excess dues to the HOA members through a dues
holiday. During his investigation, however, Farley determined that Frank knew of,
voted on, and received a $100 dues holiday related to the 2007 excess HOA
membership income. Accordingly, Farley had probable cause to believe that Frank
knowingly misrepresented facts in the allegations Frank made in his police report,
to the effect that the HOA Board had acted improperly and in violation of the law.
At the time Farley submitted the warrant affidavits, therefore, he had probable
cause to arrest Frank for violation of Nevada Revised Statutes § 207.280. This is
an absolute defense to a claim for malicious prosecution. See Lassiter v. City of
Bremerton, 556 F.3d 1049, 1054-55 (9th Cir. 2009).
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2. The district court did not err by granting summary judgment on the basis
that Frank failed to adduce evidence from which a reasonable fact-finder could
conclude that Farley wrongfully interfered with the independent judgment of either
the City Attorney’s Office or the special prosecutor. The City Attorney’s Office
and special prosecutor each independently reviewed Frank’s case and determined
that probable cause existed to find a violation of Nevada Revised Statutes §
207.280. Accordingly, Farley is not liable for damages suffered by Frank after the
City Attorney’s Office filed charges, because Frank has not demonstrated that
Farley presented evidence he knew was false in the affidavit for warrant or
influenced the prosecutor. See Blankenhorn v. City of Orange, 485 F.3d 463, 482
(9th Cir. 2007). Specifically, Farley’s warrant affidavit included exculpatory
evidence concerning Frank’s investigative efforts, as well as information about
Frank’s wife which was relevant to whether Frank deliberately and knowingly
made false statements to prompt an investigation of the Board members. Finally, a
Sun City resident presented “exculpatory evidence” to Farley after he submitted his
affidavit for warrant and criminal proceedings had commenced, which makes this
“exculpatory evidence” irrelevant to the determination of probable cause at the
time Farley submitted the affidavit.
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3. We decline to reach Frank’s arguments that Farley is not entitled to
qualified immunity and that the district court erred by dismissing Frank’s claim
under Monell v. Department of Social Services, 436 U.S. 658 (1978). See U.S. Sec.
& Exch. Comm’n v. Jensen, 835 F.3d 1100, 1113 n.6 (9th Cir. 2016) (the “cardinal
principle of judicial restraint” is “if it is not necessary to decide more, it is
necessary not to decide more” (internal quotation marks omitted)).
AFFIRMED.
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