Detrice Garmon v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DETRICE GARMON, No. 12-55109

Plaintiff-Appellant,

D.C. No.

v. 2:10-cv-06609-SJO-PJW

COUNTY OF LOS ANGELES;

STEVE COOLEY, individually OPINION

and in his official capacity;

DEPUTY DA MICHELLE

HANISEE, individually and

in her official capacity;

KAISER PERMANENTE,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted May 2, 2016

Pasadena, California

Filed July 5, 2016

2 GARMON V. COUNTY OF LOS ANGELES

Before: Milan D. Smith, Jr. and Jacqueline H. Nguyen,

Circuit Judges, and Claudia Wilken,* Senior District Judge.

Opinion by Judge Wilken

SUMMARY**

Civil Rights

The panel reversed in part the district court’s dismissal of

a civil rights action brought by a plaintiff who was an alibi

witness in her son’s murder trial.

Because the plaintiff was scheduled to undergo brain

surgery with an uncertain outcome, her deposition was taken.

She authorized her medical provider to disclose to the

prosecution medical records related to her brain tumor. The

lead prosecutor instead subpoenaed all of her medical

records, erroneously representing that the plaintiff was the

murder victim. The plaintiff ultimately testified at her son’s

trial, and the prosecutor used her medical records to

undermine her credibility.

The panel held that the prosecutor and her supervisor, the

Los Angeles County District Attorney, were not entitled to

*

The Honorable Claudia Wilken, Senior District Judge for the U.S.

District Court for the Northern District of California, sitting by

designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GARMON V. COUNTY OF LOS ANGELES 3

absolute immunity for the prosecutor’s misrepresentations

in her declaration supporting the subpoena application.

Following other circuits, the panel declined to adopt a rule

that absolute prosecutorial immunity is unavailable against

claims of unindicted third-party witnesses. The panel held

that the prosecutor was absolutely immune for issuing the

subpoena and for using the plaintiff’s medical information at

trial. She was entitled to qualified immunity, at most, for her

declaration. The supervising attorney was immune to the

same extent as the prosecutor.

The panel held that the district court abused its discretion

by denying the plaintiff leave to amend her claim under 42

U.S.C. § 1983 against the County of Los Angeles to allege

that actions pursuant to the County’s policy or custom caused

her injuries.

The panel held that the county, the district attorney, and

the prosecutor were not entitled to state statutory immunity

because the claims against them were not malicious

prosecution claims.

The panel also reversed the dismissal of state law claims

against the medical provider. It remanded the case to the

district court.

COUNSEL

Brian K. Morris (argued) and Julia A. Vogelzang, Duane

Morris LLP, San Diego, California, for Plaintiff-Appellant.

Millicent L. Rolon (argued), Principal Deputy County

Counsel; Roger H. Granbo and Jennifer A.D. Lehman,

4 GARMON V. COUNTY OF LOS ANGELES

Assistant County Counsel; John F. Krattli, County Counsel;

Mary C. Wickham, Interim County Counsel; Los Angeles

County Counsel, Los Angeles, California; for Defendants-

Appellees County of Los Angeles, Steve Cooley and Michele

Hanisee.

David P. Pruett (argued), Brenda M. Ligorsky, and Michael

J. Trotter; Carroll, Kelly, Trotter, Franzen, McKenna &

Peabody, Long Beach, California; for Defendant-Appellee

Southern California Permanente Medical Group.

OPINION

WILKEN, Senior District Judge:

Plaintiff-Appellant Detrice Garmon was an alibi witness

in her son’s murder trial.1 Because she was scheduled to

undergo brain surgery with an uncertain outcome, her

deposition was taken pursuant to state court procedure. She

authorized Defendant-Appellee Southern California

Permanente Medical Group (“Kaiser”) to disclose to the

prosecution medical records related to her brain tumor. The

next day, Defendant-Appellee Los Angeles County Deputy

District Attorney Michele Hanisee, the lead prosecutor,

issued a subpoena duces tecum to Kaiser instead requesting

all of Garmon’s medical records. Hanisee provided a

declaration in support of the application for the subpoena

duces tecum, erroneously representing that Garmon was the

murder victim in her son’s trial. Garmon ultimately testified

1

All facts are taken from the underlying complaint and from documents

which are attached to the briefs on the underlying motion to dismiss.

GARMON V. COUNTY OF LOS ANGELES 5

at her son’s trial, and Hanisee used Garmon’s medical records

from Kaiser to undermine Garmon’s credibility.

Garmon, acting pro se, filed a complaint in district court

for monetary damages under 42 U.S.C. § 1983 and several

state law causes of action against Hanisee and Kaiser, and

against Defendants-Appellees Steve Cooley, the Los Angeles

County District Attorney at the time of the trial, and the

County of Los Angeles. Hanisee, Cooley and the County are

referred to as the “County Defendants.” Garmon later filed

a First Amended Complaint, which is the operative

complaint. The court dismissed all causes of action against

the County Defendants with prejudice and against Kaiser

without prejudice.

We reverse in part and remand for further proceedings.

Hanisee and Cooley are not entitled to absolute immunity for

Hanisee’s misrepresentations in her declaration supporting

the application for the subpoena duces tecum. Further, the

court abused its discretion by denying Garmon leave to

amend her § 1983 claim against the County. The County

Defendants are not entitled to the claimed state statutory

immunity because the claims against them are not malicious

prosecution claims. Finally, because we reverse the dismissal

of certain federal claims, we reverse the district court’s

dismissal of state law claims against Kaiser.

I. Background

A. Underlying Facts

The release Garmon signed encompassed “Information

Regarding Specific Injury or Treatment (from 1/08 to

6 GARMON V. COUNTY OF LOS ANGELES

Present),” x-ray reports and “only information regarding

tumor in pituitary gland.”

Hanisee mailed a subpoena duces tecum to Kaiser with a

cover letter, which erroneously stated that Garmon was the

victim in a murder prosecution. Hanisee evoked a federal

regulation under the Health Insurance Portability and

Accountability Act (HIPAA) that permits disclosure without

the consent or notification of the subject of the subpoena.

The subpoena commanded Kaiser to produce the documents

in its custody “described in the copy of the application for

subpoena duces tecum attached hereto which is incorporated

herein by reference.” The application attached to the

subpoena requested “[a]ny and all medical records for

DETRICE GARMON,” and explained that the “medical

records will indicate the character and extent of the injuries

inflicted upon DETRICE GARMON and are necessary to

establish the elements of the charged crime.” The application

provided that the statements contained therein were true and

correct under penalty of perjury. Accordingly, Kaiser

produced all of Garmon’s medical records, not just those

subject to Garmon’s consent, and did not notify Garmon.

When Garmon testified at her son’s trial, Hanisee

“published all of [Garmon’s] medical records that she had

subpoenaed from Kaiser Permanente,” without redacting

them, “for the sole purpose of discrediting [Garmon’s]

testimony.” Garmon’s son was ultimately convicted of

murder.

B. Procedural History

A magistrate judge issued a Report and Recommendation

(R&R) on County Defendants’ motion to dismiss; the court

GARMON V. COUNTY OF LOS ANGELES 7

adopted it in full. The R&R concluded that, under Imbler v.

Pachtman, 424 U.S. 409 (1976), Hanisee and Cooley were

absolutely immune from suit in their personal capacities.

Further, because they were representatives of the State, they

could not be sued in their official capacities. With regard to

the claim against the County, the R&R explained that

Garmon alleged that Hanisee’s improper conduct violated

county policy; a § 1983 claim against a municipality such as

a county requires that the misconduct be pursuant to county

policy. The R&R recommended that, because amending her

complaint to state the latter would necessarily contradict the

operative complaint, leave to amend be denied.

Next, the R&R concluded that County Defendants were

immune under California Government Code sections 821.6

and 815.2 from suit for Garmon’s state law claims.

Finally, the R&R proposed the dismissal of the claims

against Kaiser. It explained that there is no private cause of

action under HIPAA, and that Kaiser was not amenable to

suit under § 1983 for producing Garmon’s records. Because

Garmon alleged no federal cause of action against Kaiser, and

because the R&R recommended dismissing the federal claims

against County Defendants, the R&R recommended declining

to exercise supplemental jurisdiction over Garmon’s state law

claims against Kaiser.

Garmon timely appealed.2 We have jurisdiction under

28 U.S.C. §§ 1331, 1367(a) and 1291.

2

Garmon sued Hanisee and Cooley in their official and personal

capacities. She does not appeal the dismissal of the official-capacity

claims.

8 GARMON V. COUNTY OF LOS ANGELES

II. Standards of Review

We review de novo a district court’s dismissal of a

complaint for absolute immunity. Olsen v. Idaho State Bd. of

Med., 363 F.3d 916, 922 (9th Cir. 2004). In conducting the

review, we accept the factual allegations of the operative

complaint, as well as the documents to which it refers, as true

and construe them in the light most favorable to the plaintiff.

See AE v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012);

Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).

We review for abuse of discretion the district court’s

denial of leave to amend. AE, 666 F.3d at 636. “A district

court abuses its discretion by denying leave to amend unless

amendment would be futile or the plaintiff has failed to cure

the complaint’s deficiencies despite repeated opportunities.”

Id.

We review de novo a district court’s interpretation of state

law. See JustMed, Inc. v. Byce, 600 F.3d 1118, 1125 (9th Cir.

2010).

III. Discussion

A. Federal Prosecutorial Immunity

1. Absolute Immunity

Prosecutorial immunity applies to § 1983 claims. Imbler,

424 U.S. at 427. State prosecutors are absolutely immune

from § 1983 actions when performing functions “intimately

associated with the judicial phase of the criminal process,” id.

at 430, or, phrased differently, “when performing the

traditional functions of an advocate.” Kalina v. Fletcher,

GARMON V. COUNTY OF LOS ANGELES 9

522 U.S. 118, 131 (1997). “Prosecutors are entitled to

qualified immunity, rather than absolute immunity, when they

perform administrative functions, or ‘investigative functions

normally performed by a detective or police officer.’”

Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005)

(quoting Kalina, 522 U.S. at 126).

In determining whether actions of government officials

are entitled to absolute immunity, or only subject to qualified

immunity, we focus on “the nature of the function

performed.” Buckley v. Fitzsimmons, 509 U.S. 259, 269

(1993) (quoting Forrester v. White, 484 U.S. 219, 229

(1988)). Absolute immunity applies when “initiating a

prosecution” and “presenting the State’s case,” Imbler,

424 U.S. at 431, and during “professional evaluation of the

evidence assembled by the police and appropriate preparation

for its presentation at trial . . . after a decision to seek an

indictment has been made,” Buckley, 509 U.S. at 273. By

contrast, absolute immunity does not apply when a prosecutor

“gives advice to police during a criminal investigation,”

“makes statements to the press,” or “acts as a complaining

witness in support of a[n arrest] warrant application.” Van de

Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (citations

omitted). When considering acts of obtaining evidence, we

look to the goal of the action to determine its function. See

Torres v. Goddard, 793 F.3d 1046, 1053 (9th Cir. 2015)

(distinguishing seeking a warrant to obtain evidence to

prosecute an indictment, which is protected by absolute

immunity, from seeking a warrant to obtain evidence as

“collateral investigation into new crimes,” which is not

protected by absolute immunity).

Absolute immunity “is an extreme remedy, and it is

justified only where ‘any lesser degree of immunity could

10 GARMON V. COUNTY OF LOS ANGELES

impair the judicial process itself.’” Lacey v. Maricopa Cty.,

693 F.3d 896, 912 (9th Cir. 2012) (en banc) (quoting Kalina,

522 U.S. at 127). The “official seeking absolute immunity

bears the burden of showing that such immunity is justified

for the function in question.” Burns v. Reed, 500 U.S. 478,

486 (1991) (citing Forrester, 484 U.S. at 224).

2. Third-Party Witness Plaintiffs

Garmon argues that we should adopt a rule that absolute

prosecutorial immunity is unavailable against claims of

unindicted third-party witnesses.3 She cites no circuit court

opinion adopting such a rule and we decline to do so here.

The Seventh Circuit declined to adopt such a rule

because, in Imbler, the Court “at least implied that

prosecutorial immunity also applies to suits by witnesses . . .

by focusing on whether the acts complained of were within

the scope of the prosecutorial function rather than on the

identity of the plaintiff.” Daniels v. Kieser, 586 F.2d 64, 69

(7th Cir. 1978). The Second Circuit also declined to adopt

such a distinction, quoting the reasoning in Daniels and

emphasizing that in either case the “fundamental question” of

whether the activity occurred while “acting as an advocate in

a judicial proceeding” remains the same. Betts v. Richard,

726 F.2d 79, 81 (2d Cir. 1984) (citation omitted). See also

3

In al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), rev’d on other

grounds, 563 U.S. 731 (2011), we held that “when a prosecutor seeks a

material witness warrant in order to investigate or preemptively detain a

suspect, rather than to secure his testimony at another’s trial, the

prosecutor is entitled at most to qualified, rather than absolute, immunity.”

Id. at 963. However, our inquiry focused on whether the action was

investigative or prosecutorial, rather than on the plaintiff’s role. Id. at

958–64.

GARMON V. COUNTY OF LOS ANGELES 11

Adams v. Hanson, 656 F.3d 397, 403–04 (6th Cir. 2011)

(granting absolute immunity where plaintiff was a third-party

witness and amicus had argued that absolute immunity

therefore should not apply).4

We are persuaded by the reasoning of the Seventh,

Second and Sixth Circuits.

3. Hanisee’s Immunity

Construed in the light most favorable to Garmon, the

operative complaint alleges three acts performed by Hanisee:

issuing the subpoena duces tecum, drafting its supporting

declaration and publicizing Garmon’s medical records at trial

to discredit her testimony. Garmon does not dispute that

Hanisee is entitled to absolute immunity for performing the

“traditional functions of an advocate” when using Garmon’s

medical information at trial. See Kalina, 522 U.S. at 131.

We conclude that Hanisee is absolutely immune for issuing

the subpoena duces tecum, but that the district court erred in

granting absolute immunity to Hanisee for the accompanying

declaration.

Hanisee is entitled to absolute immunity for issuing the

subpoena duces tecum to Kaiser because a “prosecutor

gathering evidence is more likely to be performing a quasi-

judicial advocacy function when the prosecutor is

‘organiz[ing], evaluat[ing], and marshaling [that] evidence’

4

Adams distinguished Odd v. Malone, 538 F.3d 202 (3d Cir. 2008), a

Third Circuit case in which the court concluded that a prosecutor was not

entitled to absolute immunity in a third-party-witness-plaintiff case,

because the offending actions were “administrative tasks,” rather than

prosecutorial tasks. Adams, 656 F.3d at 403, 406.

12 GARMON V. COUNTY OF LOS ANGELES

in preparation for a pending trial, in contrast to the police-like

activity of ‘acquiring evidence which might be used in a

prosecution.’” Genzler, 410 F.3d at 639 (quoting Barbera v.

Smith, 836 F.2d 96, 100 (2d Cir. 1987)) (alterations in

original). Although issuing a subpoena is necessarily an

evidence-gathering action, here it was issued in preparation

for evaluating and countering a defense witness’s testimony.

In light of the timing and context, it is clear that Hanisee’s

subpoena was directed at obtaining evidence in preparation

for trial. Thus, absolute immunity properly applies to this

act.5

However, the district court erred in concluding that

Hanisee is entitled to absolute immunity for presenting a false

statement in a declaration supporting her application for the

subpoena duces tecum.

In Kalina, the Supreme Court distinguished the

preparation and filing of charging documents from the

execution of a supporting certification “under penalty of

perjury,” holding that the latter is not protected by absolute

5

Appellant also argues that, as in Lacey, Hanisee evaded the judicial

process in issuing the subpoena. That case concerned a prosecutor who

neither obtained the grand jury’s prior consent before issuing a subpoena

nor notified both the grand jury’s foreperson and the presiding judge

within ten days of issuing the subpoena, as Arizona law required. The

Ninth Circuit concluded that absolute immunity was inappropriate because

the prosecutor “side-stepped the judicial process.” Lacey, 693 F.3d at 914.

However, this case is distinguishable because, unlike Arizona law,

California criminal subpoena law does not require judicial oversight

before issuance. Rather, judicial oversight does not occur until after the

sealed documents are delivered or opened in court. See People v. Blair,

25 Cal. 3d 640, 651 (1979). Further, although Hanisee may have misled

Kaiser with regard to HIPAA requirements, she did not side-step the

judicial process by issuing the subpoena.

GARMON V. COUNTY OF LOS ANGELES 13

immunity. 522 U.S. at 128–29. There, the prosecutor was

acting under Washington state law, which required that an

arrest warrant be supported by an affidavit or sworn

testimony. Id. at 129. However, the Court explained, it was

not necessary for the prosecutor to provide that testimony;

rather, the prosecutor “performed an act that any competent

witness might have performed.” Id. at 129–30. No

prosecutorial judgment could “affect the truth or falsity of the

factual statements themselves. Testifying about facts is the

function of the witness, not of the lawyer.” Id. at 130. Thus,

when executing the affidavit, the prosecutor in Kalina was

not performing the traditional function of an advocate. Id. at

131. Following Kalina, we explained that “a prosecutor

sheds absolute immunity when she acts as a ‘complaining

witness’ by certifying that the facts alleged within an affidavit

are true.” Waggy v. Spokane Cty., 594 F.3d 707, 711 (9th Cir.

2010); see also Cruz v. Kauai Cty., 279 F.3d 1064, 1067–68

(9th Cir. 2002) (holding that a prosecutor was not entitled to

absolute immunity for swearing to facts in support of a bail

revocation motion).

The circumstances here are similar to those in Kalina.

Under California law, like Washington law as described in

Kalina, the party filling out and issuing the subpoena need

not be an attorney. People v. Blair, 25 Cal. 3d 640, 648 n.6

(1979) (noting that, under California Penal Code section

1326, a subpoena duces tecum to a third party in a criminal

proceeding may be issued by the “clerk of the court in which

the action is to be tried, the district attorney, or his

investigator, among others”). Further, like the prosecutor in

Kalina, Hanisee’s declaration states particular facts under

penalty of perjury, making her more akin to a witness than a

prosecutor in this function. Thus, following Kalina, Hanisee

14 GARMON V. COUNTY OF LOS ANGELES

is not entitled to absolute immunity for her declaration in

support of the subpoena.

In sum, the district court erred in concluding that Hanisee

is absolutely immune from suit here. We conclude that she

is entitled to absolute immunity for issuing the subpoena and

using the medical records at trial, but to qualified immunity,

at most, for her declaration.

4. Cooley

An attorney supervising a trial prosecutor who is

absolutely immune is also absolutely immune. Van de Kamp,

555 U.S. at 345–46. So are prosecutors who conducted

“general office supervision or office training.” Id. at 346–48.

“But nothing in Van de Kamp permits us to grant a

supervising prosecutor absolute immunity for supervising an

activity that’s not protected by absolute immunity under

Imbler and its progeny.” Torres, 793 F.3d at 1058. Thus,

Cooley is immune to the same extent as Hanisee.

B. Federal Claim Against County

The district court was correct that the allegations in the

operative complaint are insufficient to state a § 1983 claim

against the County, but it abused its discretion in denying

leave to amend.

Section 1983 applies to the County of Los Angeles. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).

However, plaintiffs “who seek to impose liability on local

governments under § 1983 must prove that ‘action pursuant

to official municipal policy’ caused their injury.” Connick v.

GARMON V. COUNTY OF LOS ANGELES 15

Thompson, 563 U.S. 51, 60–61 (2011) (quoting Monell,

436 U.S. at 691).

Appellant’s operative complaint does not sufficiently

allege that actions pursuant to the County’s policy or custom

caused her injuries. Appellant does not dispute this

determination. Instead, she argues that she should have been

granted leave to amend.

A district court does not abuse its discretion in denying

leave to amend where it would have been impossible for the

plaintiff to amend the complaint to state a viable claim

“without contradicting any of the allegations of his original

complaint.” Reddy v. Litton Indus., Inc., 912 F.2d 291,

296–97 (9th Cir. 1990). Here, the district court abused its

discretion because the operative complaint could be construed

to encompass multiple theories of § 1983 municipal liability,

some of which would not necessarily be contradicted in an

amended complaint.

A local government may be liable under § 1983 for an

official’s conduct where the official had final policymaking

authority concerning the action at issue, and where the

official was the policymaker for the local governing body for

the purposes of the particular act. Goldstein v. City of Long

Beach, 715 F.3d 750, 753 (9th Cir. 2013). In fact, a

municipality may be liable for an “isolated constitutional

violation when the person causing the violation has final

policymaking authority.” Lytle v. Carl, 382 F.3d 978, 983

(9th Cir. 2004) (citation omitted). A municipality’s failure to

train its employees may also constitute an actionable policy

or custom under § 1983 if it amounts to deliberate

indifference to the rights of persons with whom the untrained

employees come into contact. Connick, 563 U.S. at 61.

16 GARMON V. COUNTY OF LOS ANGELES

A pro se complaint must be held to less stringent

standards than formal pleadings drafted by an attorney.

Estelle v. Gamble, 429 U.S. 97, 106 (1976). “This rule is

particularly important in civil rights cases.” Ferdik v.

Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Because

Garmon filed her operative complaint pro se, we “construe

the pleadings liberally” and afford her “the benefit of any

doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)

(quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.

1985) (en banc)). Although the operative complaint states

that Garmon is suing the County Defendants for violating a

county policy, it includes other allegations that might support

viable theories for county liability. For example, the

operative complaint states that “Steve Cooley . . . is [a] policy

maker for the District Attorney’s office.” An amended

complaint could add allegations to bolster a claim that the

facts alleged constitute an isolated constitutional violation

stemming from Cooley’s actions as a final policymaker. See

Lytle, 382 F.3d at 983. The operative complaint also states

that Hanisee, “acting on behalf of the County of Los Angeles

. . . acted negligently . . . by misusing the power of her

office.” Garmon might be able to allege more facts that

would support a claim that Hanisee’s actions were performed

as a final policymaker. Likewise, the operative complaint

alleges claims for “Negligent training” and “Negligent

supervision.” Garmon could allege additional facts relating

to the County’s failure to train and supervise. See Connick,

563 U.S. at 61.

Allegations based on these theories could be consistent

with the operative complaint, rather than necessarily

inconsistent with it as the district court concluded. Thus, it

was an abuse of discretion to deny leave to amend. The court

shall grant Garmon leave to amend on remand.

GARMON V. COUNTY OF LOS ANGELES 17

C. State Immunity for County Defendants

Next, we turn to Garmon’s state law claims, which the

district court dismissed based on state statutory immunity.

California Government Code section 821.6 states: “A public

employee is not liable for injury caused by his instituting or

prosecuting any judicial or administrative proceeding within

the scope of his employment, even if he acts maliciously and

without probable cause.” The County’s immunity would

follow from Hanisee’s and Cooley’s immunity. See Cal.

Gov’t Code § 815.2.

“When interpreting state law, a federal court is bound by

the decision of the highest state court.” Hewitt v. Joyner,

940 F.2d 1561, 1565 (9th Cir. 1991) (citation omitted). In

Sullivan v. County of Los Angeles, 527 P.2d 865, 871 (Cal.

1974), the California Supreme Court interpreted section 821.6

as “confining its reach to malicious prosecution actions.” It

is true that, since Sullivan, California Courts of Appeal have

interpreted section 821.6 more expansively. See, e.g., Kayfetz

v. State, 156 Cal. App. 3d 491, 497 (1984) (“section 821.6 is

not limited to suits for damages for malicious prosecution,

although that is a principal use of the statute”); Amylou R. v.

Cty. of Riverside, 28 Cal. App. 4th 1205, 1211 (1994)

(explaining that “the section clearly extends to proceedings

which were not initiated out of a malicious intent, and thus

would not constitute malicious prosecution”). Nonetheless,

several district courts within this circuit have read Sullivan to

mean that section 821.6 applies only to malicious prosecution

claims, in spite of the California Courts of Appeal decisions.

See, e.g., Dinius v. Perdock, 2012 WL 1925666, at *8–*9

(N.D. Cal. May 24, 2012) (agreeing “with the California

Supreme Court’s decision in Sullivan and find[ing] that

Section 821.6 only applies to claims for malicious

18 GARMON V. COUNTY OF LOS ANGELES

prosecution” after noting that Sullivan’s holding “has been

distinguished by numerous California Court of Appeal

decisions”); Williams v. City of Merced, 2013 WL 498854, at

*17 (E.D. Cal. Feb. 7, 2013) (same).

The court “must determine what meaning the state’s

highest court would give the statute in question.” Goldman

v. Standard Ins. Co., 341 F.3d 1023, 1026 (9th Cir. 2003).

We think the California Supreme Court would adhere to

Sullivan even though California Courts of Appeal have

strayed from it. Sullivan explained that section 821.6

expressly continued the existing immunity of public

employees against malicious prosecution claims and noted

that “no statute impose[d] liability on public entities for

malicious prosecution.” Sullivan, 527 P.2d at 871. Further,

the cases the legislative history cited focused on malicious

prosecution claims. Id.

Because the California Supreme Court has already spoken

on this issue, we follow Sullivan and we reverse and hold that

the district court erred in dismissing the state law claims

against County Defendants because the claims against them

are not malicious prosecution claims.

D. Kaiser

We agree with the district court that the operative

complaint stated no federal claims against Kaiser. Appellant

does not challenge this ruling. The operative complaint also

mentions a violation of HIPAA. However, “HIPAA itself

provides no private right of action.” Webb v. Smart

Document Sols., LLC, 499 F.3d 1078, 1081 (9th Cir. 2007).

GARMON V. COUNTY OF LOS ANGELES 19

The district court dismissed all claims against Kaiser

based on lack of supplemental jurisdiction, because it had

dismissed all of the federal claims in the operative complaint.

Kaiser does not dispute that supplemental jurisdiction is

appropriate if any federal claim against County Defendants

survives. Because we reverse the dismissal of certain federal

claims against County Defendants, we reverse the district

court’s dismissal of claims against Kaiser.

IV. Conclusion

The district court erred by granting Hanisee and Cooley

absolute immunity for Hanisee’s declaration, dismissing

Garmon’s federal claim against the County without leave to

amend, dismissing the state claims against County

Defendants under California Government Code section 821.6,

and dismissing the state law claims against Kaiser. For all

the foregoing reasons, we REVERSE in part and REMAND.