ADVANCED BUILDING & FABRICATION, INC., a California corporation and ROBERT HONAN v. CALIFORNIA HIGHWAY PATROL and JOHN WILSON

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADVANCED BUILDING &
FABRICATION, INC., a California
corporation and ROBERT HONAN,
Plaintiffs-Appellees,
v.
CALIFORNIA HIGHWAY PATROL and
JOHN WILSON,
Defendants,
and
CURTIS AYERS,
Defendant-Appellant.
No. 17-16618
D.C. No.
2:13-cv-02380-MCE-CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted December 19, 2018
San Francisco, California
Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,** Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED
MAR 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Defendant-Appellant Curtis Ayers, a former employee of the state Board of
Equalization, appeals from a denial of summary judgment, alleging that the district
court erred in denying him state-law immunity.1 We have jurisdiction under 28
U.S.C. § 1291 to consider a claim of immunity that does not turn on resolution of a
material dispute of fact. See Plumhoff v. Rickard, 572 U.S. 765, 771–73 (2014).
We affirm in part, reverse in part, and remand.
1. The district court did not err in denying Ayers immunity under California
Government Code section 821.6. See Garmon v. Cty. of Los Angeles, 828 F.3d
837, 847 (9th Cir. 2016) (holding that, despite contrary decisions in the Courts of
Appeal, the California Supreme Court would adhere to Sullivan v. Cty. of Los
Angeles, 527 P.2d 865 (Cal. 1974), which limits section 821.6 immunity to claims
of malicious prosecution). “[W]e are bound by our prior decisions interpreting
state as well as federal law in the absence of intervening controlling authority.”
F.D.I.C. v. McSweeney, 976 F.2d 532, 535 (9th Cir. 1992). Because Plaintiffs did
not bring a claim of malicious prosecution, section 821.6 does not apply, and, on
this ground, we affirm the district court’s denial of immunity.
2. The district court erred in denying Ayers absolute immunity under
California Civil Code section 47(b) for his statements reporting the May 7, 2012
1 Ayers also appealed the district court’s denial of qualified immunity for his
participation in a May 2012 search, which we address in a concurrently filed
opinion.

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incident to law enforcement. This provision protects “publication or broadcast[s]”
made in “any (1) legislative proceeding, (2) judicial proceeding, (3) . . . other
official proceeding authorized by law, or (4) . . . initiation or course of any other
proceeding authorized by law.” Cal. Civ. Code § 47(b). The California Supreme
Court has read this immunity broadly as “encompass[ing] not only testimony in
court and statements made in pleadings, but also statements made prior to the filing
of a lawsuit, whether in preparation for anticipated litigation or to investigate the
feasibility of filing a lawsuit.” Hagberg v. Cal. Fed. Bank, 81 P.3d 244, 249 (Cal.
2004). Plaintiffs do not identify a material factual dispute that would preclude
section 47(b) immunity for Ayers’s statements. In fact, at oral argument, Plaintiffs
conceded that section 47(b) immunity applies to the statements Ayers made
regarding the investigation. Therefore, we reverse the denial of immunity as to
Ayers’s statements to law enforcement.
The parties shall bear their own costs on appeal. See Fed. R. App. P.
39(a)(4).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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