George Mindiola Wusstig v. LONG BEACH POLICE DEPARTMENT, Erroneously Sued As City of Los Angeles

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE MINDIOLA WUSSTIG,
Plaintiff - Appellant,
v.
LONG BEACH POLICE DEPARTMENT,
Erroneously Sued As City of Los Angeles,
Defendant,
And
SHEA S. ROBERTSON, No. 6103; CITY
OF LONG BEACH,
Defendants - Appellees.
No. 14-55902
D.C. No. 2:12-cv-05901-SVW-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted May 2, 2016
Pasadena, California
FILED
MAY 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: W. FLETCHER and GOULD, Circuit Judges and LEMELLE,** Senior
District Judge.
Plaintiff George Wusstig appeals the district court’s grant of summary
judgment to Defendants Detective Shea Robertson, the Long Beach Police
Department, and the City of Long Beach. He challenges only the district court’s
decisions denying his request for additional discovery time and rejecting his
malicious prosecution claim. We affirm.
The district court did not abuse its discretion in declining Wusstig’s request,
pursuant to Federal Rule of Civil Procedure 56(d), for additional time to conduct
discovery. In order to avail himself of Rule 56(d)’s protection, Wusstig had to
show that (1) allowing additional discovery would have precluded summary
judgment, and (2) he diligently pursued previous discovery opportunities.
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1026 (9th Cir. 2006).
Wusstig failed to satisfy either requirement. First, the additional discovery
Wusstig sought — testimony “verify[ing] that the only information [the AUSAs]
had identifying Mr. Wusstig as ‘George’ was the false ‘identification’ by defendant
Robertson” — would not have precluded summary judgment. As explained
below, in order to prevail on his malicious prosecution claim, Wusstig had to show
** The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
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that Robertson acted with malice. Wusstig has not shown that the discovery he
sought from AUSA Jayne Kim would provide evidence that Robertson acted
maliciously. Second, Wusstig’s attorney did not diligently seek discovery.
Wusstig’s attorney claimed he could not depose Kim because he was “embroiled in
the litigation” of another case, but he admitted that he was only busy with this case
from January 2014 until March 2014. Wusstig’s attorney has provided no
explanation for why he did not attempt to start taking the deposition of AUSA Kim
during October, November, or December of 2013.
The district court properly granted summary judgment to the defendants on
Wusstig’s malicious prosecution claim. In order to prevail on his claim, Wusstig
had to show that the government lacked probable cause to prosecute him.
Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015). Wusstig does
not contest that the government had probable cause to believe that the “George” on
the wiretap recordings had violated federal drug laws. He argues only that the
government lacked probable cause to believe that he was that “George.” But, even
though in hindsight everyone recognizes that the government arrested the wrong
person, the government had probable cause to believe Wusstig was “George” given
that Wusstig (1) has the same first name as “George,” (2) has connections to
“George’s” associate, and (3) at least somewhat resembled “George.” Wusstig did
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not rebut the prima face case of probable cause established by the indictment. See
Williams v. Hartford Ins. Co., 195 Cal. Rptr. 448, 452 (Cal. Ct. App. 1983) (“[T]he
fact of the Grand Jury indictment gives rise to a prima facie case of probable cause,
which the malicious prosecution plaintiff must rebut.”).
Wusstig’s malicious prosecution claim also independently fails because he
did not present sufficient evidence to create a triable issue of fact as to whether
Robertson acted with malice in pursuing Wusstig’s prosecution. See Awabdy v.
City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). Beyond the fact that
Robertson was wrong in his identification of Wusstig as “George,” Wusstig
identifies no evidence to suggest that Robertson acted “primarily for an improper
purpose.” Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d
1019, 1030 (9th Cir. 2008) (quoting Sierra Club Found. v. Graham, 85 Cal. Rptr.
2d 726, 739–40 (Cal. Ct. App. 1999)).
AFFIRMED.
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