Victoria Urenia et al v. Public Storage et al

Filing 223

ORDER GRANTING DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT 192 , 204 AND DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT 196 by Judge Dean D. Pregerson (lc). Modified on 8/14/2015 (lc).

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NO JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VICTORIA URENIA, an
individual; SOLEDAD CORONA,
an individual,

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Plaintiffs,

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v.
PUBLIC STORAGE, a real
estate investment trust;
CITY OF LOS ANGELES, a
governmental entity; BANK OF
AMERICA, N.A.; MICHAEL ANZ,
Defendants.
___________________________

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Case No. CV 13-01934 DDP (AJWx)
ORDER GRANTING DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT
[Dkt. Nos. 192, 196, 204]

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Presently before the Court are motions for summary judgment

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filed by Plaintiffs (Dkt. No. 196), Defendant City of Los Angeles

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(Dkt. No. 204), and Defendant Bank of America (“BANA”) (Dkt. No.

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192).

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submissions, the Court adopts the following order addressing all

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three motions.

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I.

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Having heard oral arguments and considered the parties’

BACKGROUND
Plaintiff Javier Hernandez owned and, with Plaintiff Brenda

Hernandez, resided at a certain property on Leadwell St. in Van

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Nuys, CA.

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purchased the property via a mortgage loan, secured by a deed of

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trust, that was originally held by Countrywide and later taken over

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by BANA.

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Countrywide recorded a notice of default in 2008.

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BANA foreclosed on the loan; in 2011 the property was sold at

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auction to The Bank of New York Mellon (“Mellon”), and a trustee’s

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deed upon sale was recorded.

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(Third Amended Complaint (“TAC”), ¶ 2.)

Plaintiffs had

(Id. at ¶¶ 35-37; Decl. Javier Hernandez, Ex. B.)
(Id. at ¶ 36.)

(BANA’s RJN, Ex. A.)

Plaintiffs refused to vacate the property.

(TAC, ¶ 40.)

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Mellon filed an unlawful detainer action against Plaintiffs, and in

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June 2012 the Superior Court issued a judgment of possession in

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Mellon’s favor.

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writ of possession authorizing eviction and directing the sheriff

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to enforce compliance, on the condition that no lockout should take

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place prior to July 15, 2012.

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sale and the judgment, BANA and Plaintiff Javier Hernandez

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continued to negotiate a possible loan modification; however, in

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October 2012 the bank ultimately rejected the application for

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modification, citing an inability to confirm the incomes of certain

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of Plaintiff’s family members.

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In the letter rejecting the application, BANA informed Plaintiff

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that “your account is no longer being reviewed for any workout

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assistance” and “we are required . . . to proceed with the eviction

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process.”

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reported that a BANA spokesperson had stated in an email that “it

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is the bank’s policy to avoid foreclosure sales or displacement of

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homeowners or tenants around the Christmas holiday,” although the

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bank declined to discuss specific dates.

(BANA’s RJN, Exs. B-C.)

The court also issued a

(Id., Ex. D.)

After the auction

(Decl. Javier Hernandez, Exs. C-E.)

(Decl. Javier Hernandez, Ex. E.)

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One news source

(Supp. Decl. Javier

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Hernandez, Ex. 1.)

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ultimately carried out the eviction on December 27, 2012.

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Javier Hernandez, ¶ 11.)

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The Los Angeles Sheriff’s Department (“LASD”)
(Decl.

Plaintiffs now sue for alleged First and Fourth Amendment

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violations, as well as violations of anti-trust law and

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California’s Unfair Competition Law (UCL).

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II.

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(Compl., generally.)

LEGAL STANDARD
Summary judgment is appropriate where the materials in the

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record show “that there is no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a), (c).

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the initial burden of informing the court of the basis for its

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motion and of identifying those portions of the pleadings and

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discovery responses that demonstrate the absence of a genuine issue

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of material fact.

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(1986).

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in favor of the nonmoving party.

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477 U.S. 242, 242 (1986).

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A party seeking summary judgment bears

Celotex Corp. v. Catrett, 477 U.S. 317, 323

All reasonable inferences from the evidence must be drawn
Anderson v. Liberty Lobby, Inc.,

Once the moving party meets its burden, the burden shifts to

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the nonmoving party opposing the motion, who must “set forth

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specific facts showing that there is a genuine issue for trial.”

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Anderson, 477 U.S. at 256. Summary judgment is warranted if a party

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“fails to make a showing sufficient to establish the existence of

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an element essential to that party's case, and on which that party

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will bear the burden of proof at trial.”

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A genuine issue exists if “the evidence is such that a reasonable

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jury could return a verdict for the nonmoving party,” and material

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facts are those “that might affect the outcome of the suit under
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Celotex, 477 U.S. at 322.

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the governing law.”

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genuine issue of fact “[w]here the record taken as a whole could

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not lead a rational trier of fact to find for the nonmoving party.”

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986).

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III. DISCUSSION

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A.

First and Fourth Amendment Violations

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1.

BANA as a State Actor

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Anderson, 477 U.S. at 248.

There is no

Plaintiff sues BANA under 42 U.S.C. § 1983, which provides for

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relief against persons who violate a plaintiff’s federal

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constitutional rights under color of state law.

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private business organization, a bank does not act “under color of

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state law.”

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involvement” in a private party’s action, it may be considered

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“under color of state law” for § 1983 purposes.

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Gabica, 708 F.2d 380, 382 (9th Cir. 1983) (internal quotation marks

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omitted).

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state “devolves upon a [private] political organization the

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uncontested choice of public officials,” Terry v. Adams, 345 U.S.

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461, 484 (1953), or where the private party has a “symbiotic”

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lessor-lessee relationship with a state agency, Moose Lodge No. 107

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v. Irvis, 407 U.S. 163, 175 (1972), or where there is a conspiracy

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between the private actor and a law enforcement officer to practice

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private discrimination with the threat of arrest behind it.

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Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970).

Ordinarily, as a

However, where there is “significant state

Howerton v.

Thus, for example, state action may be found where a

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In Howerton, this last principle was in play: a landlord

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conspired with a police officer to evict the plaintiffs, allegedly

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without the required due process of law.
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There, the court noted

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that “[p]olice were on the scene at each step of the eviction,”

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“the police officer . . . privately approached the Howertons and

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recommended that they leave the trailerhouse,” and “he inquired

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whether the tenants had found a new rental.”

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Thus, his actions “created an appearance that the police sanctioned

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the eviction,” although the eviction was in fact a private action.

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708 F.2d at 384.

Here, the eviction was not a private matter.

It was carried

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out by LASD, pursuant to a court order issued in favor of Mellon.

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But the eviction was requested, apparently, by a lawyer affiliated

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with both Mellon and BANA.

(Decl. Tuan Uong, Ex. K.)

BANA also

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took part directly in the eviction by having its contractors

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retrieve Plaintiffs’ belongings and move them to a storage unit.

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Because the removal of Plaintiffs’ possessions happened under the

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apparent authority of LASD and/or LAPD, it can qualify as state

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action on BANA’s part.

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Plaintiffs’ other primary allegation of a constitutional

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violation, that BANA conspired with the LAPD to harass and silence

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Plaintiffs because they protested BANA directly and/or because they

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were involved in the “Occupy” movement against inequality, could

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also certainly qualify as state action, for the same reason.

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allegation that a private entity uses law enforcement as a stalking

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horse to pursue private ends is an allegation that the private

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entity takes “state action” for § 1983 purposes.

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The Court therefore turns to the substantive evidence

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supporting these allegations.

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And

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2.

First Amendment Claim
Plaintiffs allege that BANA and LAPD conspired to chill the

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free speech, association, and petition rights of protesters,

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including themselves, by:

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(1) having the LAPD and Bank of America monitor social media,

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cell phones, and fusion center data, and then arrive at each

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home or protest location and take photos of the members at the

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OFF events which plaintiffs are informed and believe and

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allege thereon were then passed onto Bank of America and/or

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their agents; (2) LAPD would also demand identification of all

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individuals present at the lock outs or protests0 [sic]; (3)

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LAPD would pass this information onto Bank of America; (4)

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Bank of America would then take that information and plan

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immediate lockouts in order to snuff out the protests.

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[Occupy] members who showed up to support other members . . .

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were suddenly finding themselves a victim of identity theft, a

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court process, or eviction.

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(TAC, ¶¶ 78, 84-85.)

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In Plaintiffs’ own motion and reply, however, the Court has

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difficulty discerning any coherent First Amendment argument, let

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alone undisputed evidence showing that BANA and LAPD conspired to

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take the actions described above.

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America had the Los Angeles Police Department harass the Plaintiffs

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in retaliation for protesting illegal foreclosures.”

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Summ. J. at 1.)

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citations to a factual record that would support this contention.

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The same is true of Plaintiffs’ oppositions to BANA and LAPD’s

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motions.

Plaintiffs assert that “Bank of

(Pls.’ Mot.

However, the motion is almost entirely free of

It is not the Court’s task “to scour the record in search
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of a genuine issue of triable fact.”

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Keenan v. Allan, 91 F.3d

1275, 1279 (9th Cir. 1996).

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Nonetheless, in the interest of justice, the Court examines

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the record evidence in the light most favorable to Plaintiffs to

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determine whether their claims could survive Defendants’ motions

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for summary judgment.

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no evidence showing that BANA coordinated a campaign of harassment

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and retaliation against Plaintiffs.

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show, at best, that Javier Hernandez is a member of Occupy and has

That examination shows that there is simply

Plaintiffs provide evidence to

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protested “in front of Bank of America on at least one occasion”

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(Decl. Javier Hernandez, ¶¶ 5-6, 36); that he and Brenda Hernandez

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staged protests against the foreclosure at his home (id. at ¶¶ 30-

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35); that LAPD Officer Gavin1 approached the house on October 4,

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2012 and made some belligerent statements, including telling the

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other protesters that Plaintiffs were “behind 48 months” on their

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payments and saying “I wish I could live like that” (id. at ¶¶ 38-

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49; id., Ex. I); and that the following interactions with law

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enforcement occurred during the six-month protest period: LAPD and

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Child Protective Services visited the house, allegedly at

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midnight,2 police investigated a sanitation complaint regarding

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couches in the roadway, “supporters” of the protest were stopped by

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police three times, and items including a “wall,” some couches, and

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He is referred to as “Officer Gavin” in Javier Hernandez’s
declaration and “Lieutenant Gavin” in the moving papers.
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Plaintiffs provide video evidence of the visit, but the video
does not actually show the presence of any identifiable LAPD
officers. (Decl. Javir Hernandez, Ex. J, “9-17-12 DCFS LAPD try to
take child.”)
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a “portrait,” and police drove by the house numerous times.

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(Id.

at ¶ 50.)

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It is entirely possible that some of these actions were

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harassing or intimidating – Officer Gavin, in particular, is

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alleged to have taunted protesters and belittled their right to

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free speech.

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however, is any evidence tying this behavior to BANA.

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argue that a letter from BANA’s attorney to LASD shows that there

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was “coordination,” because in that letter the attorney suggests

(Id. at ¶¶ 38-49; id., Ex. I.)

What is lacking,
Plaintiffs

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that her firm will keep the timing of the eviction “highly

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confidential,” so as to avoid “unwanted attention.”

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Albert, Ex. A at 30.)

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thought LASD might want to avoid unwanted attention during the

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(presumably from protesters) simply does not lead to an inference

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that BANA engaged in a months-long campaign of harassment

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coordinated with LAPD, a different agency, long before the letter

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was written.

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(Decl. Lenore

But the fact that the bank’s attorney

Nor does the fact that Javier Hernandez protested “in front of

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Bank of America” one time lead to the conclusion that BANA took

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notice of the protest, identified Mr. Hernandez, connected him to

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the property, and/or had the kind of control or influence over (or

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even relationship with) LAPD as an entity that would enable the

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coordinated campaign of harassment and intimidation that Plaintiffs

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allege.

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Plaintiffs also point to the fact that Officer Gavin allegedly

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knew that Plaintiffs had not made mortgage payments for 48 months

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as evidence that BANA must have supplied him with that information

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and therefore must have been the puppetmaster behind his actions
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and the actions of other LAPD officers.

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Mot. at 6.)

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had publicized the fact that they had stopped paying their

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mortgage, and Gavin stated on video that he had previously done

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undercover work and surveilled the group.

(Suppl. Decl. Tuan Uong,

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Exs. S, T; Decl. Javier Hernandez, Ex. I.)

Defendants also point

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out that call logs show no communications between BANA and LAPD as

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to the property.3

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reason beyond the speculative to conclude that Officer Gavin got

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(Pls.’ Opp’n to LAPD’s

But Defendants point out that Plaintiffs themselves

(Decl. Tuan Uong, Ex. R.)

There is therefore no

his information from BANA.
As to BANA, Plaintiffs’ evidence creates no more than a

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“metaphysical doubt” as to the possibility of a conspiracy.

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Matsushita, 475 U.S. 574, 586 (1986).

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could not conclude, on this evidence, that BANA acted in concert

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with LAPD to violate Plaintiffs’ First Amendment rights.

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A rational trier of fact

As to LAPD, nothing in Plaintiffs’ evidence suggests a policy

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or custom of retaliation, harassment, or intimidation against anti-

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foreclosure protesters, as would be required to hold the City

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liable for the acts of individual LAPD officers.4

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of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978)

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(municipality may be held liable for official policy or unofficial

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custom, but not for individual torts of government agents).5

Monell v. Dep't

Thus,

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Plaintiffs point out that the call logs do not provide
complete information about the callers and are in a few cases
redacted. However, Plaintiffs have provided no positive evidence
that BANA and LAPD were in contact.

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The individual officers are not named as defendants.

Plaintiffs address Monell only by saying that it “is not
relevant. Monell deals with immunity. The LAPD was not immune
(continued...)
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a rational trier of fact could not conclude that the City acted to

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violate Plaintiffs’ First Amendment rights.

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3.

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Fourth Amendment Claim
Plaintiffs also allege that Defendants acted to deny them

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their Fourth Amendment right to be free of unreasonable search and

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seizure during the eviction.

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claim is not entirely clear, the TAC appears to allege four kinds

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of Fourth Amendment violation: entry without a warrant or exigent

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circumstances; seizure of the home; seizure of possessions; and

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excessive force.

Although the exact gravamen of the

(TAC, ¶¶ 97-122.)

LASD, assisted by LAPD officers, evicted Plaintiffs from the

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house pursuant to a statutory scheme specifically designed to deal

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with situations where a former owner refuses to vacate a house

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after foreclosure.

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unlawful detainer action finds for plaintiff, “order shall be

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entered for the immediate possession of the premises”); § 712.010

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(“After entry of a judgment for possession or sale of property, a

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writ of possession or sale shall be issued by the clerk of the

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court . . . “); § 712.020 (writ of possession requires levying

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officer to enforce the judgment).

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scheme on its face.

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See Cal. Civ. Proc. Code § 1166a (if court in

Plaintiffs do not challenge this

A Fourth Amendment claim as to entry into the home or seizure
of the home will necessarily fail if Plaintiffs do not have a

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(...continued)
here.” (Pls.’ Opp’n to LAPD’s Mot. at 9.) This argument is hard
to parse. Monell sets out the standard for determining when a
municipality can be sued under § 1983 – that is, the policy-orcustom standard. LAPD is an agency of the City of Los Angeles, and
the City, a municipality, is the defendant here. Monell is
therefore not only relevant but dispositive.
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possessory right to the home.

Persons in a private residential

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property without a legal right of possession, such as squatters, do

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not have an objectively reasonable expectation of privacy.

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Zimmerman v. Bishop Estate, 25 F.3d 784, 787 (9th Cir. 1994).

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Therefore, they cannot object to entry and search on Fourth

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Amendment grounds.

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interest in a property necessarily cannot object to its seizure.

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“A seizure of property ... occurs when there is some meaningful

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interference with an individual's possessory interests in that

Similarly, a person without a possessory

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property.”

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quotation marks omitted).

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Soldal v. Cook County, 506 U.S. 56, 61 (1992) (internal

Plaintiffs appear to argue that they did have a right of

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possession, and that the entry and seizure were unlawful, because

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the writ of possession authorizing the eviction was invalid

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(because it lacked the debtor’s address), and LASD officials knew

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that it was invalid.

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Lenore Albert, Ex. A at 21-23 (emails showing that some LASD

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personnel were concerned about the writ and felt it should have

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been rejected).)

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which lack foundation showing that they even refer to the Leadwell

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St. property at all,6 are hearsay,7 and are not the best evidence

(Pls.’ Opp’n to LAPD’s Mot. at 9; Decl.

But, first, the Court cannot consider the emails,

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The property is not actually named in the email exchange,
although the following exchange occurs: “Which case is this? Fort
Lucero?” “Yes, the ELA eviction you wanted to do Thursday.” (Pls.’
Opp’n to LAPD’s Mot. at 9; Decl. Lenore Albert, Ex. A at 22.) The
house in this case, however, was nicknamed “Fort Hernandez,” not
“Fort Lucero.” (Decl. Javier Hernandez, ¶ 32.)
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Fed. R. Evid. 801 (hearsay is an out-of-court statement
offered in evidence to prove the truth of the matter asserted in
the statement).
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of the contents of the writ.8

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writ showing that the writ did not have their address on it.

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copy of the writ submitted as an exhibit by Defendants, on the

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other hand, plainly does have Plaintiffs’ address on it.

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RJN, Ex. D) Nor do Plaintiffs allege that BANA’s exhibit is

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fraudulent or inauthentic.9

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Plaintiffs point to no copy of the
The

(BANA’s

Second, what stripped Plaintiffs of their possessory interest

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in the house was not the writ, which merely authorized the

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eviction, but the foreclosure sale.10

There is no evidence

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suggesting the foreclosure was improper, and the state court issued

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an order in the unlawful detainer action explicitly giving Mellon,

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not Plaintiffs, the right of possession.

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evidence that the court order was improper or invalid.

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therefore did not have a possessory interest in the house as of

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December 27, 2012 and cannot assert a Fourth Amendment right as to

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either privacy or the seizure of the home.

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There is no allegation or
Plaintiffs

Plaintiffs still maintained a possessory right to their
personal property, of course.

As BANA itself acknowledges, its

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Fed. R. Evid. 1002 (original writing is required to prove its
content). Nor is the exception in Fed. R. Evid. 1007, allowing
proof of a document’s contents by the “written statement of the
party against whom the evidence is offered,” applicable: the only
statements that assert a defect in the writ are statements by
LASD’s officers and employees, and LASD is not a party to this
case.
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“A duplicate is admissible to the same extent as the original
unless a genuine question is raised about the original's
authenticity or the circumstances make it unfair to admit the
duplicate.” Fed. R. Evid. 1003.
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“[I]n California, once a foreclosure sale concludes and the
purchaser records the deed in accordance with applicable law, the
original trustor or borrower no longer has an interest or right in
the subject real property.” In re Edwards, 454 B.R. 100, 106
(B.A.P. 9th Cir. 2011).
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“contractors . . . moved the personal possessions remaining on the

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Leadwell Property to a U.S. Storage Centers facility.”

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Mot. at 14.)

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1174(e)-(l), which allows a landlord or judgment creditor11 to

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remove and store property left behind by former residents.

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Plaintiffs do not challenge the constitutionality of § 1174, which

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provides that the landlord or judgment creditor must return the

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property on demand.

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(BANA’s

They did so pursuant to Cal. Civ. Proc. Code §

Of course, Plaintiffs presumably left their possessions behind

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because they were forced to leave quickly by the sheriff’s

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deputies.

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right to remove property left behind in the house, to which

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Plaintiffs did not have a possessory right – including the right to

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store their possessions there.12

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lawful, because Plaintiffs could have removed their possessions in

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any of the months prior to the eviction, and because the

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possessions were left behind on Mellon’s property, BANA did not

Nonetheless, BANA, acting on behalf of Mellon, had the

Because the removal itself was

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Section 1174 refers only to a “landlord,” but Cal. Civ.
Proc. Code § 715.030 clarifies that § 1174 applies to a judgment
creditor taking possession pursuant to a writ of possession as
well.
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In their opposition to the City’s motion, but not in their
motion for summary judgment, Plaintiffs cite in passing to In re
Perl, where the Ninth Circuit held that a purchaser violated an
automatic stay in a bankruptcy proceeding by locking a resident out
and thereby exercising control over the resident’s personal
property, which was at that time property of the bankruptcy estate.
513 B.R. 566, 576 (B.A.P. 9th Cir. 2014). Plaintiffs note that
Javier Hernandez’s second bankruptcy petition was still pending at
the time of the eviction. (Opp’n to City’s Mot. at 10.) However,
Mellon had moved for and received an order for relief from the stay
in the bankruptcy, which distinguishes this case from Perl. See In
re Hernandez, No. 1:12-bk-19878-VK, Dkt. No. 24 (Bankr. C.D.Cal.
Nov. 30, 2012) (order granting relief from stay).
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conspire with the LASD or the LAPD to effect an unreasonable

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seizure of Plaintiffs’ property.13

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Finally, Plaintiffs appear to allege an excessive force claim
under the Fourth Amendment:

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Using 100 officers in the dark at 4:30AM with tanks,

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bulldozers, and guns surely was excessive force when there

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were no prior violent altercations or reason to believe there

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would be one. It was excessive force that would intimidate

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anyone – and there were children inside this home. It was a

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protest – not an armed shoot-out at the Okay Corral.
(Pls.’ Reply at 4; see also Opp’n to LAPD’s Mot. at 7.)
Plaintiffs point to no case, however, in which the presence of

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a large number of officers or particular equipment has been the

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sole basis for a Fourth Amendment excessive force claim, and the

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Court can find no such case.

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deposition that the extent of Plaintiffs’ interaction with the

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sheriff’s deputies on the morning of the eviction was that “they

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came in and they asked us to leave,” and Plaintiffs did leave,

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peacefully.14

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of violence, or even a threat of violence beyond the presence of

Javier Hernandez admitted in his

(Suppl. Decl. Tuan Uong, Ex. T at 37.)

No evidence

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Nothing in this order prevents Plaintiffs from suing BANA or
the storage company for the loss or destruction of the property
under any appropriate state law, of course. (TAC, ¶ 107 (on
entering the storage unit, Plaintiff Javier Hernandez “discovered
most of the property was lost, stolen, damaged or destroyed”).)
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Given that the house was the site of an ongoing protest and
had been walled off by protesters (Decl. Javier Hernandez, ¶ 51),
it was not unreasonable of LASD to anticipate that a large number
of law enforcement officers and special equipment might be needed
to effect the eviction.
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armed officers, is presented in the record.

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force claim.

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There is no excessive

No rational trier of fact could conclude that there was a

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Fourth Amendment violation on this record.

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B.

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Antitrust Claim
Plaintiffs’ antitrust claim was dependent on arguments about

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the market share of former defendant Public Storage.

As Public

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Storage was not the storage company involved in this case and is no

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longer a party (see Dkt. Nos. 184, 189), there would seem to be no

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basis for the claim.

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in their opposition to BANA’s motion, and the Court deems the claim

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abandoned.

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C.

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Plaintiffs do not defend the antitrust claim

UCL Claim
Section 17200 of the UCL, under which Plaintiffs sue, forbids

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“any unlawful, unfair or fraudulent business act or practice.”

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Cal. Bus. & Prof. Code § 17200.

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eviction itself was unlawful under state law, but, as discussed

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above, it was not.

Plaintiffs allege that the

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Plaintiffs also allege that Public Storage’s business

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practices are unfair, but, as noted above, Public Storage is no

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longer a party here.

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Nor have Plaintiffs presented evidence the BANA was behind a

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scheme to harass and intimidate protesters.

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harassment took place, with nothing tying it to the bank, cannot

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support a UCL claim.

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Evidence that some

Finally, Plaintiffs argue that the eviction was unlawful or

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unfair because BANA had allegedly announced a moratorium during the

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holidays.

However, no specific dates were attached to the
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1

announcement, (Supp. Decl. Javier Hernandez, Ex. 1), and there is

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no evidence that Plaintiffs knew of the moratorium, assuming it

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existed and still applied on December 27, 2012.

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Genuine Disputes Fact at 4 (acknowledging that Javier Hernandez was

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not aware of a moratorium).)

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it to their detriment.

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(See Pls.’ Stmt.

Thus, they could not have relied on

No rational trier of fact could find a violation of the UCL on

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this record.

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IV.

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CONCLUSION
The Court GRANTS summary judgment to Defendants and DENIES

summary judgment to Plaintiffs.

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IT IS SO ORDERED.

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Dated: August 14, 2015
DEAN D. PREGERSON
United States District Judge

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