The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 18 2025
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES TOLEDANO Esquire, Attorney, No. 24-7156
D.C. No.
Plaintiff - Appellee, 8:22-cv-01331-MWF-BFM
v.
MEMORANDUM*
CRAIG LAWLER,
Defendant - Appellant,
and
PRISCILLA ANN MARCONI, RICHARD
D. MARCONI, PAUL R. ROPER,
ANTHONY J. RACKAUCKAS, Jr.,
COUNTY OF ORANGE,
Defendants.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted September 15, 2025**
Pasadena, California
*
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).
Before: CLIFTON, IKUTA, and LEE, Circuit Judges.
James Toledano brought this action under 42 U.S.C. § 1983 alleging that he
was subjected to criminal charges based on evidence deliberately fabricated by
Craig Lawler in his capacity as a district attorney investigator. Lawler brings this
interlocutory appeal after the district court denied his motion to dismiss based on
qualified immunity.
“We review de novo a denial of a motion to dismiss based on qualified
immunity, accepting as true all well-pleaded allegations of material fact and
construing them in the light most favorable to the non-moving party.” Hyde v. City
of Willcox, 23 F.4th 863, 869 (9th Cir. 2022). We have jurisdiction under 28
U.S.C. § 1291,1 and we affirm.
Government officials are “entitled to qualified immunity under § 1983
unless (1) they violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was ‘clearly established at the time.’” District of
Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (quoting Reichle v. Howards, 566
U.S. 658, 664 (2012)). “To be clearly established, a right must be sufficiently clear
1
We reject Toledano’s argument that that we lack jurisdiction because Lawler
contests factual allegations. While we may not consider factual issues on this
interlocutory appeal, we have jurisdiction to consider the purely legal question of
“whether the defendant would be entitled to qualified immunity as a matter of law,
assuming all factual disputes are resolved, and all reasonable inferences are drawn,
in plaintiff’s favor.” Ballou v. McElvain, 29 F.4th 413, 421 (9th Cir. 2022)
(quoting Estate of Anderson v. Marsh, 985 F.3d 726, 731 (9th Cir. 2021)).
2 24-7156
that every reasonable official would have understood that what he is doing violates
that right.” Reichle, 566 U.S. at 664 (citation modified).
Toledano plausibly alleged the violation of a clearly established
constitutional right. We have long since recognized that “there is a clearly
established constitutional due process right not to be subjected to criminal charges
on the basis of false evidence that was deliberately fabricated by the government.”
Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001) (en banc). A § 1983
claim of deliberate fabrication requires showing that “(1) the defendant official
deliberately fabricated evidence and (2) the deliberate fabrication caused the
plaintiff’s deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir.
2017). Toledano’s operative complaint adequately alleged that Lawler’s
supplemental investigative report, written in 2008, deliberately fabricated evidence
that Toledano attempted to commit extortion by describing a meeting between
relevant parties that never took place and falsely asserting that Toledano made
threats against Priscilla Marconi. The complaint further alleged that this fabricated
evidence was a but-for and proximate cause of the criminal extortion charges
brought against Toledano and his subsequent conviction.2 See Spencer, 857 F.3d at
2
The conviction was reversed on grounds that the state trial court failed to properly
instruct the jury about Toledano’s litigation privilege. See People v. Toledano, 249
Cal. Rptr. 3d 100, 103 (Ct. App. 2019). The district attorney’s office declined to
retry the case, and the charges against Toledano were dismissed.
3 24-7156
798.
While Lawler contests whether his supplemental report did in fact contain
fabricated information, such factual disputes are not properly before us on this
limited interlocutory appeal. Accepting Toledano’s well-pleaded allegations as
true, we conclude that Lawler is not entitled to qualified immunity at this stage of
the litigation.
AFFIRMED.
4 24-7156