Archer et al v. City of Taft, Ca. Inc. et al

Filing 81

MEMORANDUM DECISION and ORDER Granting in Part and Denying in Part Defendants' 72 Motion for Summary Judgment, signed by District Judge Lawrence J. O'Neill on 5/28/15. (Verduzco, M)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8
9
10

DARRELL ARCHER, AND KEITHA
DARQUEA,
Plaintiffs,

11
12
13

Case No. 1:12-CV-00261-LJO-JLT

v.
JILL GIPSON; JOSEPH BURKE; AND,
J.E. BURKE CONSTRUCTION, INC.,

14
Defendants.

MEMORANDUM DECISION AND ORDER
GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT.
(Doc. 72)

15
16
17

Before the Court in the above-styled and numbered cause of action is Defendant Jill Gipson,

18

Joseph Burke, and J.E. Burke Construction, Inc.’s (collectively, “Defendants”) Motion for Summary

19

Judgment, filed March 3, 2015. (Doc. 72). Plaintiffs Darrell Archer and Keitha Darquea filed their

20

Opposition on March 30, 2015 (Doc. 74), and Defendants filed objections (Docs. 79 & 80) on April

21

10, 2015. The matters are appropriate for resolution without oral argument. See Local Rule 230(g).

22

Having considered the record in this case, the parties’ briefing, and the relevant law, the Court will

23

grant in part and deny in part Defendants’ motion.
BACKGROUND

24
25
26

I. FACTUAL BACKGROUND
The following relevant facts come primarily from Plaintiffs’ First Amended Complaint

27

(“FAC”) (Doc. 4); Archer’s declaration (“Arch. Decl.”) (Doc. 76): Darquea’s declaration (“Darq.

28

Decl.”) (Doc. 77); Defendants’ Separate Statement of Undisputed Material Facts (“SSUMF”) (Doc.

1

72-2); Defendant Gipson’s deposition (“Gip. Depo.”) and declaration (“Gip. Decl.”) (Doc. 72-3), as

2

well as the Photographic Evidence (“Photo. Evid.”) (Docs. 72-6, 72-7, 72-15, 72-16, 72-24).

3

A. The Parties

4

Plaintiffs Keitha Darquea (“Darquea”) and Darrell Archer (“Archer”) (together, “Plaintiffs”)

5

reside at 2408 Bladen Street in Bakersfield, California (“the Bakersfield address”). FAC ¶ 20.

6

Darquea owns real property (APN 031-290-015) in the City of Taft (“the City”), in Kern County

7

(“the County”), California, located at 300 Lucard Street as well as 509 3rd Street (collectively, “the

8

Property”). FAC p. 3:17-18, ¶ 6, 20; SSUMF 66, 92. Darquea and Archer were married on

9

December 18, 2006. SSUMF ¶ 61. Archer claims that he first became an owner of the Property

10

when he and Darquea married. SSUMF ¶ 89. Plaintiffs have, between themselves, signed a

11

document titled “Postnuptial Property Agreement” (Darq. Decl., Doc. 77, Ex. 2), related to

12

community property ownership of the Property, although no papers have been filed with the County

13

to record ownership of the Property in Archer’s name. SSUMF ¶ 91.
Plaintiffs bring the instant actions against Defendants Jill Gipson, the Code Enforcement

14
15

Officer for the City (“Gipson” or “Code Enforcement Officer”), in her official and individual

16

capacity, and Joseph Burke, a principal at J.E. Burke Construction, Inc. (“Burke”), in his individual

17

capacity, as well as J.E. Burke Construction, Inc. (together, “the Burke Defendants”) (collectively,

18

“Defendants”). See generally FAC, and ¶¶ 40, 76. Defendant J.E. Burke Construction, Inc. is a

19

California corporation and a local contractor hired by the City. FAC ¶ 75.
Defendant Gipson is and was the sole Code Enforcement Officer for the City. FAC ¶ 8;

20
21

SSUMF ¶ 1. The Code Enforcement Officer enforces portions of the Taft Municipal Code (herein

22

“TMC”). FAC ¶ 9; SSUMF ¶ 2. The Code Enforcement Officer enforces code sections pertaining

23

to the abatement of public nuisances within the City’s limits, which can include searching

24

properties and seizing personal property. FAC ¶ 9; SSUMF ¶ 3. The City defines “nuisance” the

25

same as in California Civil Code. SSUMF ¶ 4. The Burke Defendants, together with Gipson, went

26

to the Property and seized their personal property. FAC ¶¶ 75, 77. Burke proceeded at the direction

27

and guidance of Gipson, and Defendants seized the personal property without a warrant. FAC ¶ 78.

28

//
2

1

B. Plaintiffs’ Real Property

2

The Property at issue, together 300 Lucard Street and the adjacent 509 3rd Street, is a large

3

corner lot on the corner of Lucard and Third streets, containing three buildings: a three-apartment

4

building, a two-story cottage, a two-car garage, as well as land between the structures. FAC ¶ 21;

5

SSUMF ¶ 93. Of these, the cottage and garage are located at 509 3rd Street. SSUMF ¶ 67. The

6

back yard of 300 Lucard Street serves also as the front yard of the 3rd Street cottage. See Photo.

7

Evid. (Docs. 72-6, 72-7, 72-15, 72-16, 72-24). As of the time of the abatement on September 24,

8

2010, there was no wall or fence separating the yards shared by the Lucard and 3rd Street properties.

9

Id.; SSUMF ¶ 76. A wire fence ran along the sidewalk next to 509 3rd Street. Id.; SSUMF ¶ 75.

10

Darquea purchased 300 Lucard Street and 509 3rd Street at the same time. SSUMF ¶ 69.

11

Darquea believes that 300 Lucard and 509 3rd Street are on the same lot. SSUMF ¶ 68. The Grant

12

Deed executed on September 6, 1974, pertains to the property at 300 Lucard Street. SSUMF ¶ 101.

13

Because Plaintiffs reside in Bakersfield and the Property is in Taft, the Plaintiffs use a

14

property manager and sometimes do not go to the Property for a few months at a time. FAC ¶ 22.

15

Construction had been and/or was ongoing at the Property, including for instance, new roofs, fence,

16

and foundation. FAC ¶ 25.

17

C. Plaintiffs’ Personal Property

18

Plaintiffs were saving construction materials at the Property to use when they would return

19

to continue the construction work. FAC ¶ 23. Plaintiffs kept stored a stack of materials, including

20

mostly old dimension redwood, at the Property, as well as some metal sheeting, some smaller

21

pieces of old dimension lumber, and also a large planter made of decorative lava-type rocks (which

22

had formerly and for many years, since the 1960s, contained a large cactus) (collectively, “the

23

Construction Materials”). FAC ¶ 24.

24

The Construction Materials were in the yard at 300 Lucard Street, on private property,

25

behind a wire fence. FAC ¶ 25. The pile of construction materials in the yard was not neatly

26

stacked. FAC ¶ 32. Plaintiffs put the value of the construction materials and rocks at approximately

27

$6,000. FAC ¶ 30. The pile of materials existed in the described condition at the Property for about

28

a year before it was removed by the City. SSUMF ¶ 95. The last time that Darquea had visited the
3

1

Property there was a pile of materials there. SSUMF ¶ 72. A photograph taken by Gipson (Doc.

2

72-6) accurately depicts what the pile of materials looked like at the Property when Darquea last

3

visited it, before the abatement on September 24, 2010, and the wire fence could have been laying

4

down as shown in the photograph. SSUMF ¶¶ 73, 74.

5

D. Historical Background

6

Plaintiff Darquea’s mother is Mary Meredith (“Meredith”). SSUMF ¶ 84. Meredith owned

7

509 3rd Street until she died. SSUMF ¶ 94. Meredith died in 2004. SSUMF ¶ 77. Darquea filed

8

nothing with the County Recorder to put the County on notice that Mary Meredith had passed

9

away. SSUMF ¶ 81. Meredith, Mary Lee Meredith, “Mary Lee Irrev Meredith,” and “Mary Lee

10

Meredith Irrev” all refer to the same person. SSUMF ¶ 96. The County Assessor designated Parcel

11

Number 031-290-15-00 with the address 300 Lucard Street and its owner as “Meredith Mary Lee

12

Irrev TR.” SSUMF ¶¶ 23, 24.
The County Assessor lists the mailing address for Parcel Number 031-290-15-00 as the

13
14

Bakersfield address. SSUMF ¶ 25. Darquea has lived at the Bakersfield address for 36 years.

15

SSUMF ¶ 64. During that time, Darquea received mail at the Bakersfield address. SSUMF ¶ 65.

16

After her mother’s death, Darquea continued to receive mail addressed to her at the Bakersfield

17

address. SSUMF ¶ 78. As of June 15, 2010, the Bakersfield address was also Darquea’s mother’s

18

mailing address. SSUMF ¶ 85. From the time Darquea first took ownership of 300 Lucard Street in

19

1974, after Meredith’s death up until the present, the tax bills for the Property have always been

20

sent by Kern County in the name of Mary Meredith to the Bakersfield address. SSUMF ¶¶ 79, 80,

21

82. Mail addressed to “Mary Lee Meredith Irrev” or “Mary Lee Meredith” or “Mary Lee Irrev

22

Meredith” at the Bakersfield address would have been delivered there in 2010 and 2011. SSUMF

23

¶ 99. In 2010, Darquea received tax bills from the County of Kern addressed to Meredith at the

24

Bakersfield address regarding the property located at 300 Lucard Street. SSUMF ¶ 86.
The envelope from the City with the Notice of Violation was addressed to “Mary Lee

25
26

Meredith” at the Bakersfield address, the same address where tax bills were sent from the County.

27

SSUMF ¶ 87.

28

//
4

E. Nuisance Abatement: Investigative Actions, Searches, and Seizure

1

1. The First Search – June 8, 2010

2
3

On June 8, 2010, Gipson saw a wire fence that she saw was knocked down in the front yard

4

of a private dwelling at 509 3rd Street. SSUMF ¶ 5. Gipson investigated from the street by looking

5

through the fence (“the First Search”), and she observed a pile of items that she considered junk,

6

trash, and debris in plain view in the front yard of the private dwelling. SSUMF ¶ 6. The pile of

7

items included used wood, used bricks, used sheet metal, used wire, and rocks. SSUMF ¶ 7; Doc.

8

72-6. The pile in the front yard at 509 3rd Street was in plain view to Gipson from where she sat in

9

her vehicle on 3rd Street. SSUMF ¶ 11. Nothing prevented an individual driving by the Property

10

from seeing the pile of materials through the wire fence. SSUMF ¶ 83. Gipson noticed that an

11

elementary school was located directly across the street from 509 3rd Street. SSUMF ¶ 10, Doc. 72-

12

7.1 Gipson concluded that the knocked down fence made it easy for children to gain access to the

13

pile of items in the front yard at the Property. SSUMF ¶ 9. Defendants state that Gipson saw a

14

child of elementary school age playing on the pile of debris in the front yard at 509 3rd Street.

15

SSUMF ¶ 8; Doc. 72-1, at 20:24-25. At her deposition, when asked if she was speculating about

16

such an event, Gipson said, “Yes.”2 Gip. Decl. p. 62, 18-25. At that time, Gipson admitted that her

17

concern about children playing on the construction materials was merely speculative. See Gip.

18

Decl. p. 62, 18-25. Specifically, when asked if there was anything on the Property which

19

threatened public health, Gipson stated:

21

There’s a small school across the street and I didn’t want kids to get up and play in all that
stuff and get hurt because the kids walk back and forth in front of the property daily. I know
kids are mischievous. I don’t know if they would get into that and play or not.

22

Id. During the First Search, Gipson concluded that the pile of items in front of 509 3rd Street was a

23

safety hazard and constituted a public nuisance. SSUMF ¶¶ 12, 13. On that basis, Gipson

24

concluded that the pile of items in front of 509 3rd Street was in violation of TMC, Sections 3-4-

25

8(A)3(a) and 3-4-8(A)3(c). SSUMF ¶¶ 14, 15.

20

26
1

27
28

A photograph depicting the property at 509 3rd Street (foreground) and the elementary school across
the street (background); an aerial photograph from Google Maps depicts the relative locations of the
two properties and the elementary school.
2
This is the first of at least two inconsistencies within Defendants’ statement of facts.
5

In summary, Defendants assert that the grounds for Gipson’s conclusion were the following:

1
2

(a) The pile of debris was composed of used wood, used bricks, used sheet metal, used wire, and

3

rocks (SSUMF ¶ 16); (b) the fence was partially knocked down, thereby giving children easy access

4

into the yard of that dwelling (SSUMF ¶ 17); (c) the Property’s close proximity to an elementary

5

school (SSUMF ¶¶ 18, 20); (d) and, that an elementary-aged child with access to the Property

6

played on the pile of debris, which posed a real threat or danger for serious injury (SSUMF ¶ 19).

7

Continuing her investigation, Gipson researched records from the Kern County Assessor to

8

learn that 509 3rd Street is on a lot identified as Parcel Number 031-290-15-00 (aka ATN 031-290-

9

15-00-5) (“the Parcel”). SSUMF ¶ 22; Ex. D.3 On June 15, 2010, Gipson initiated the nuisance

10

abatement process pursuant to the TMC with regard to the Parcel. SSUMF ¶ 26.
2. The Undelivered First Notice of Violation – June 2010

11

On June 15, 2010, Gipson issued a “Notice Of Violation – 15 Day Notice And Order To

12
13

Abate,” (“the Notice”) to the listed owner of Parcel Number 031-290-15-00, “Mary Lee Irrev TR

14

Meredith.” SSUMF ¶ 27. The Notice, dated June 15, 2010, advised Meredith that Parcel Number

15

031-290-15-00 had “junk, trash, and debris” in violation of TMC, Sections 3-4-8(A)3(a) and 3-4-

16

8(A)3(c), and directed the owner to abate the nuisance at that parcel within 15 days. SSUMF ¶¶ 28,

17

29. Attached to the Notice was a letter from the Code Enforcement Division (“the CED Letter”)

18

explaining the City’s abatement process. SSUMF ¶ 30. The CED Letter advised the property

19

owner that they “may request an appeal with the City Council” within a specified time. SSUMF

20

¶ 31; Docs. 72-11, 12.
On June 16, 2010, Gipson sent the Notice of Violation and the CED Letter addressed to the

21
22

listed property owner, Meredith, via certified mail (Receipt Number 7007 2560 0000 8475 1938), at

23

her listed address of record, the Bakersfield address. SSUMF ¶¶ 32, 33; Docs. 72-7, 13; FAC ¶¶ 26,

24

89. Certified mail must be signed for at the post office. FAC ¶ 26.
The U.S. Postal Service attempted delivery, but was unsuccessful. SSUMF ¶ 34; FAC ¶¶

25
26

29, 91. On June 17, 2010, the U.S. Postal Service provided the City with a notice (Receipt Number

27
3

28

A certified copy of the Assessors Map depicting Lot 15, Parcel Number 031-290-15-00 aka ATN
031- 290-15-00-5 is docketed as Doc. 72-9.
6

1

7007 2560 0000 8475 1938) regarding its unsuccessful attempt to deliver the certified mail to

2

Meredith at the Bakersfield Address. SSUMF ¶ 34. On or about July 12, 2010, the U.S. Postal

3

Service returned undelivered the envelope containing the violation documents that had been sent to

4

Meredith by the City. SSUMF ¶ 35. Plaintiffs never received the Notice about such a mailing nor

5

did they receive the CED Letter. Id.; FAC ¶¶ 27, 90. Although Plaintiffs did not receive the

6

certified mail, they later obtained the Notice of Violation via a public records request. FAC ¶ 28.

7

Plaintiffs allege that on or about June 15 or 17, 2010, Gipson, the City’s Code Enforcement

8

Officer, came onto their Property for the purpose of posting a Notice of Code Violation. FAC ¶ 26.

9

And, at that time, the City posted the Notice of Code Violation on Plaintiffs’ property at 300

10

Lucard Street. FAC ¶ 89.
3. The Second Search: August 2010

11
12

On August 11, 2010, Gipson returned to the Property, investigated (“the Second Search”),

13

and observed that the public nuisance had not been removed. SSUMF ¶ 37. Because of Gipson’s

14

extended absence from work due to illness, some time had passed after she began the abatement

15

process in June 2010, and continued it with the Second Search in early to mid-August 2010.

16

SSUMF ¶ 36.
During the Second Search, Gipson observed that the pile of debris was still in the identical

17
18

condition and location in front of the dwelling as it had been when she first observed it two months

19

prior, in June 2010. SSUMF ¶¶ 38, 40. She also observed that the pile of materials was still

20

composed of the same used wood, used bricks, used sheet metal, used wire, and rocks. SSUMF 39.

21

A portion of the wire fence was still knocked down at the premises.4 SSUMF ¶¶ 41, 50. Gipson

22

took photographs of the pile of Construction Materials as they appeared on August 11, 2010. See

23

Docs. 72-6 through 24. At that time, Gipson concluded that the pile of debris continued to pose an

24
25
26
27
28

4

The Court notes inconsistencies in Defendants’ factual allegations. There is a material difference
between a fence entirely knocked down, and a fence with a downed segment. In addition to the first
noted inconsistency in Defendants’ presentation of the facts (whether Gipson observed a child
playing on the materials, or merely speculated that one might), in paragraph 41 of their Separate
Statement of Undisputed Material Facts, Defendants state that “[t]he wire fence was still knocked
down.” But in paragraph 50 of the same statement Defendants state that “[a] portion of the wire
fence was still knocked down.” Counsel is cautioned to be precise in their presentation of the facts.
7

1

immediate threat of injury or danger to neighboring children. SSUMF ¶ 42. During the Second

2

Search, it was Gipson’s intention to inform the occupant of her observations about the materials

3

that required immediate cleanup, however, the dwelling was apparently vacant and she did not

4

speak to anyone. SSUMF ¶ 43.

5

Also on August, 11, 2010, Gipson entered the Property and posted the Notice of Violation

6

and the CED Letter on the wall outside 509 3rd Street (Parcel Number 031-290-15-00). SSUMF

7

¶ 44; Doc. 72-15.

8

4. The September 2010 Abatement: Search, Culminating in a Seizure

9

Gipson neither sought nor received a warrant relevant to the abatement actions. FAC ¶ 94;

10

SSUMF ¶¶ 47, 48; see Defs. Mtn. for Summary Judgment (Doc. 72-1) (“Defendants acknowledge

11

that no consent or warrant was obtained before performing the abatement.”).

12

In August 2010, Gipson issued a Bid Request for an independent contractor to abate/cleanup

13

the public nuisance at the Property, to remove the pile of materials from Plaintiffs’ Property.

14

SSUMF ¶ 45. In September 2010, Gipson, as the City’s Code Enforcement Division, hired Joseph

15

Burke and his company, J.E. Burke Construction, Inc., to perform the nuisance abatement and

16

clean-up at 509 3rd Street/300 Lucard Street, Parcel Number 031-290-15-00 (aka ATN 031-290-15-

17

00-5), pursuant to TMC, Section 3-4-11(B)(4). SSUMF ¶ 46, 100; FAC ¶ 30.

18

On September 24, 2010, immediately before the cleanup, Gipson investigated at the

19

Property and observed that the pile of items was still in nearly the identical condition as when she

20

first declared the condition a public nuisance on June 8, 2010. SSUMF ¶ 49. The photographs

21

taken during the previous search in August 2010 accurately depict the condition of the subject pile

22

of materials and wire fence as they also appeared on September 24, 2010. SSUMF ¶ 51; Doc. 72-6.

23

On September 24, 2010, the Defendants together went onto Plaintiffs’ property for the

24

purpose of removing from the Property Plaintiffs’ Construction Materials. FAC ¶ 30. On that date,

25

Gipson accompanied the Burke Defendants to the Property, where the Burke Defendants, under

26

Gipson’s direction and authority, removed the Construction Materials and cleaned up outside at 509

27

3rd Street/300 Lucard Street, Parcel Number 031-290-15-00, and did so without a warrant. SSUMF

28

¶ 47, 48; FAC ¶ 31).
8

1

On September 28, 2010, Gipson returned to the property at 509 3rd Street (Parcel Number

2

031-290-15-00) and confirmed that the clean-up had been completed and that the wire fence had

3

been repaired. SSUMF ¶ 52; Doc. 72-16.

4

5. The Lien

5

The Burke Defendants invoiced the City for $892.00 related to the work done at the

6

Property, and the City paid that sum to the Burke Defendants. SSUMF ¶ 53; Doc. 72-17. The City

7

charged Plaintiffs the cost of nuisance abatement performed by the contractor, and billed them also

8

for the Code Enforcement Officer’s time; the total was $937.36. SSUMF ¶ 55; FAC ¶ 85. Plaintiffs

9

have not paid any sums toward the costs that the City claims to have incurred for the Property

10

clean-up. FAC ¶ 15; SSUMF ¶ 98. On October 11, 2010, the City caused a Declaration of

11

Substandard Property, signed by Gipson, to be filed with the Kern County Assessor regarding

12

Parcel Number 031-290-15-00. SSUMF ¶ 54; Doc. 72-18; FAC ¶ 33.

13

On February 23, 2011, the City sent a letter to Meredith, the listed owner, to advise her of a

14

Public Hearing by the Taft City Council (“the City Council”) on March 15, 2011, regarding the

15

possible placement of a lien on Parcel Number 031-290-15-00 in the amount of $937.36 (“the Lien

16

Notice”), in connection with the abatement. SSUMF ¶ 55; Doc. 72-19.

17

Soon after February 23, 2011, Plaintiffs became aware of the City’s abatement actions when

18

they received the Lien Notice from the City addressed to Meredith, by certified mail, at the

19

Bakersfield Address. SSUMF ¶ 97; FAC ¶ 34. The Lien Notice gave information about the City’s

20

intention to file a lien on the property related to violations of TMC Title III Chapter 4 and 5 for the

21

costs of abatement, and about the upcoming March 15, 2011 City Council meeting where Plaintiffs

22

could appear to voice their objections. SSUMF ¶ 97; Doc. 72-19; FAC ¶¶ 12, 34. Although the

23

Lien Letter mentioned that other invoices had previously been sent to their address, there is no

24

evidence that Plaintiffs received any such invoices or had received any other prior correspondence

25

from the City. FAC ¶¶ 34, 35.

26

Upon receipt of the Lien Notice, Plaintiff Archer contacted Gipson by telephone, and she

27

described to him her authority granted by the Taft Municipal Code. FAC ¶ 36. In response, he

28

expressed his disbelief and plans to object and contest the matter. FAC ¶ 36. During that or another
9

1

phone conversation, sometime before the City Council meeting, Gipson explained to Archer that

2

she did not need a warrant to seize property. FAC ¶ 17.

3

On March 15, 2011, the Taft City Council held a public hearing on costs and placement of

4

liens on the abated properties located at 509 3rd Street/300 Lucard Street (Parcel Number 031-290-

5

15-00). SSUMF ¶ 56; FAC ¶ 15. Plaintiffs Archer and Darquea attended the meeting. SSUMF

6

¶ 57; FAC ¶ 15. Archer spoke at the meeting and conveyed his opposition to the placement of a

7

lien on the subject parcel. SSUMF ¶ 58; FAC ¶ 37. Plaintiffs were unwilling to pay the $937.36

8

assessed for the nuisance abatement. FAC ¶ 15. Plaintiffs voiced their concern about the City’s

9

actions and interacted with the mayor, council members, the city clerk, the city attorney, noting that

10

each acted with an attitude of indifference. FAC ¶ 37. After Archer accused the City of “exerting

11

acts of ownership over private property,” the then-mayor told Archer to “sit down.” Id. Gipson also

12

testified at the meeting, described the public nuisance at the Property, and offered her opinion and

13

justifications for her actions. SSUMF ¶ 59; FAC ¶ 69. The City Council passed Resolution No.

14

3274-11, approving and confirming the costs of the abatement at the properties located at 509 3rd

15

Street/300 Lucard Street (Parcel Number 031-290-15-00 aka ATN 031-290-15-00-5), in the total

16

amount of $937.36, as a lien on the subject property. SSUMF ¶ 60; Docs. 72-20, 21. The City did

17

not offer to compensate Plaintiffs for taking their personal property, but instead still seeks to collect

18

$937.36 from Plaintiffs. FAC ¶ 38. On May 7, 2011, the City submitted a lien on Plaintiffs’

19

property to the Kern County Recorder’s office, and it was subsequently recorded. FAC ¶ 105.

20

II.

21

PROCEDURAL BACKGROUND
Plaintiffs commenced this action on February 23, 2012, after the City declared a public

22

nuisance on their property and executed an abatement action by removing the Construction

23

Materials from the Property. See Complaint (“Compl.,” Doc. 1). Plaintiffs’ claims arise under 42

24

U.S.C. § 1983 (“Section 1983”), alleging violations of their Fourth, Fifth, and Fourteenth

25

Amendment rights stemming from Defendants’ search of their real property and Defendants’

26

seizure of Plaintiffs’ personal property from that location. See Compl. The Court screened

27

Plaintiffs’ Complaint, and dismissed it with leave to amend. Doc. 3. Pursuant to the Court’s order,

28

Plaintiffs filed their First Amended Complaint on May 15, 2012. (Doc. 4). The Court screened the
10

1

amended pleading, and instructed Plaintiffs to file a second amended complaint, or notify the Court

2

of their willingness to proceed only on claims found to be cognizable. (Doc. 5).
On August 17, 2012, Plaintiffs filed a notice of their intention to proceed only on cognizable

3
4

claims. (Doc. 6). Accordingly, on August 22, 2012, the Magistrate Judge recommended the action

5

proceed against Defendants Jill Gipson, Joseph Burke, J.E. Burke Construction, Inc., and that the

6

remaining defendants be dismissed. (Doc. 7). The Magistrate Judge determined Plaintiffs’ causes

7

of action against the remaining defendants either lacked factual support of failed as a matter of law.

8

(Id., at 15). Plaintiffs did not file objections to the Magistrate Judge’s Findings and

9

Recommendations. After conducting a de novo review of the case, this Court adopted in full the

10

Magistrate Judge’s Findings and Recommendations on September 11, 2012. (Doc. 12). The case

11

thus proceeds on the following claims: (1) Violation of the Fourth Amendment by defendants Jill

12

Gipson, Joseph Burke, and J.E. Burke Construction Inc.; and, (2) Violation of the Fourteenth

13

Amendment by defendants Jill Gipson, Joseph Burke, and J.E. Burke Construction Inc.
On September 12, 2012, without leave from the Court, Plaintiffs filed a Second Amended

14
15

Complaint (“SAC,” Doc. 13). As Plaintiffs had previously elected to proceed only on the

16

cognizable claims and only as to the remaining defendants (Doc. 6), the Magistrate Judge ordered

17

the SAC stricken, and deemed the answer filed to be in response to the FAC. (Doc. 31). On

18

January 30, 2014, Defendants filed requests for an entry of default (Docs. 19 & 20). The Clerk of

19

Court entered defaults on January 31, 2014 (Docs. 21 & 22). On June 5, 2014, pursuant to the

20

parties’ stipulation (Doc. 40), the Magistrate Judge set aside the entry of default. (Docs. 21, 22, 41).

21

On June 30, 2014, Defendants filed their Answer (Doc. 55), and again asked the Court for entry of

22

default (Doc. 56), which the Magistrate Judge declined. (Doc. 58).
On March 3, 2015, Defendants timely filed their Motion for Summary Judgment. (Doc. 72).

23
24

Plaintiffs filed their Opposition on March 30, 2015 (Doc. 74), to which Defendants filed their

25

Objections5 on April 10, 2015 (Docs. 79 & 80). The matter is now ripe for review.

26
5

27
28

The parties interpose several objections to evidence presented, both within the various statements of
fact and in stand-alone objection memoranda. (Docs. 79 & 80). The Court need not address these
because in ruling on the instant motion it does not consider the materials to which defendants object.
See Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010).
11

LEGAL STANDARD

1

Summary judgment is appropriate when the pleadings, disclosure materials, discovery, and

2
3

any affidavits provided establish that “there is no genuine dispute as to any material fact and the

4

movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A material fact is one that

5

may affect the outcome of the case under the applicable law. See Anderson v. Liberty Lobby, Inc.,

6

477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a reasonable trier of

7

fact could return a verdict in favor of the nonmoving party.” Id.
The party seeking summary judgment “always bears the initial responsibility of informing

8
9

the district court of the basis for its motion, and identifying those portions of the pleadings,

10

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

11

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

12

Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). The exact nature of this

13

responsibility, however, varies depending on whether the issue on which summary judgment is

14

sought is one in which the movant or the nonmoving party carries the ultimate burden of proof. See

15

Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the movant will have the

16

burden of proof at trial, it must demonstrate, with affirmative evidence, that “no reasonable trier of

17

fact could find other than for the moving party.” Id., at 984. In contrast, if the nonmoving party

18

will have the burden of proof at trial, “the movant can prevail merely by pointing out that there is

19

an absence of evidence to support the nonmoving party’s case.” Id. (citing Celotex, 477 U.S. at

20

323).

21

If the movant satisfies its initial burden, the nonmoving party must go beyond the

22

allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative

23

evidence from which a jury could find in [its] favor.” FTC v. Stefanchik, 559 F.3d 924, 929 (9th

24

Cir. 2009) (emphasis in original). “[B]ald assertions or a mere scintilla of evidence” will not

25

suffice in this regard. Id., at 929; see also Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

26

475 U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56(c), its

27

opponent must do more than simply show that there is some metaphysical doubt as to the material

28

facts.”) (citation omitted). “Where the record as a whole could not lead a rational trier of fact to
12

1

find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587

2

(quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
In ruling on a motion for summary judgment, a court does not make credibility

3
4

determinations or weigh evidence. See Liberty Lobby, 477 U.S. at 255. Rather, “[t]he evidence of

5

the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.

6

Only admissible evidence may be considered in deciding a motion for summary judgment.

7

Fed.R.Civ.P. 56(c)(2). “Conclusory, speculative testimony in affidavits and moving papers is

8

insufficient to raise genuine issues of fact and defeat summary judgment.” Soremekun, 509 F.3d at

9

984.

10

As Plaintiffs proceed pro se, the Court acknowledges that it should “treat the opposing

11

party’s papers more indulgently that the moving party’s papers.” Lew v. Kona Hospital, 754 F.2d

12

1420, 1423 (9th Cir. 1985); see also Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979)

13

(finding that courts may be “much more lenient” with the affidavits and documents of the party

14

opposing summary judgment). “A verified complaint may be treated as an affidavit to oppose

15

summary judgment to the extent it is ‘based on personal knowledge’ and ‘sets forth specific facts

16

admissible in evidence.’” Keenan v. Hall, 83 F.3d 1083, 1090 n. 1 (9th Cir. 1996) (quoting

17

McElyea v. Babbitt, 833 F.2d 196, 197-98 n. 1 (9th Cir. 1987) (per curiam)), amended by 135 F.3d

18

1318 (9th Cir. 1998); see also Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004); Lopez v.

19

Smith, 203 F.3d 1122, 1132 n. 14 (9th Cir. 2000) (en banc); Schroeder v. MacDonald, 55 F.3d 454,

20

460 (9th Cir. 1995); Lew, 754 F.2d at 1423. If a plaintiff states that the facts in the complaint are

21

true under penalty of perjury, as Plaintiffs do in this case, the pleading is “verified.” Schroeder,

22

55 F.3d at 460 n. 10. In a pro se civil rights action, a verified complaint may constitute an opposing

23

affidavit so long as the allegations are based on a plaintiff’s personal knowledge of admissible

24

evidence, and not merely on belief. See McElyea, 833 F.2d at 197-98.

25
26

DISCUSSION
Plaintiffs assert that by searching their residential property and subsequently seizing their

27

personal property, Defendants violated their Fourth Amendment rights and subsequently deprived

28

them of due process under the Fourteenth Amendment.
13

1

Defendants contend that they lawfully searched the yard at the Property, lawfully seized the

2

Construction Materials under exigent circumstances, and that Plaintiffs were afforded due process.

3

I.

STANDING
As a threshold issue, the Defendants argue that Plaintiff Archer, Darquea’s husband, lacks

4
5

standing to bring this action because he is not the property owner of record and he has no

6

community property interest to confer standing.

7

Standing is an aspect of subject matter jurisdiction. Fleck & Assoc., Inc. v. City of Phoenix,

8

471 F.3d 1100, 1106 n. 4 (9th Cir. 2006). To evaluate standing, the inquiry is “whether the litigant

9

is entitled to have the court decide the merits of the dispute or of particular issues.” Allen v. Wright,

10

468 U.S. 737, 750-751 (1984).

11

The Court, however, need not reach whether Archer’s alleged community property interests

12

are sufficient to confer standing, as he contends, because Darquea unquestionably has standing. See

13

Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112, 1118 n. 1 (9th Cir. 2001) (holding that the

14

question of a husband’s standing to sue on the basis of his community property interest was

15

irrelevant where his wife “unquestionably has standing to sue, and [his] presence as a plaintiff has

16

no effect on the relief available”); see also Murphy v. Bilbray, 782 F. Supp. 1420, 1426 n. 19 (S.D.

17

Cal. 1991) (holding that where at least one plaintiff in each of three consolidated cases had

18

standing, the court was required to reach of the merits of each case and did not need to address

19

whether a co-plaintiff in one case had standing).
Because Plaintiff Darquea’s standing is not in dispute and the potential relief in the case is

20
21

unaffected by Archer’s status, the Court proceeds to the merits.

22

II.

23

SECTION 1983 CLAIMS
To succeed on their Section 1983 claims, Plaintiffs must demonstrate that the action

24

(1) occurred “under color of state law,” and (2) resulted in the deprivation of a constitutional or

25

federal statutory right. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988) (citations omitted);

26

see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982).

27
28

As the moving party, Defendants bear the initial burden on summary judgment of pointing
out “an absence of evidence to support [Plaintiffs’] case.” Celotex, 477 U.S. at 325. Here, the
14

1

parties do not dispute whether Defendants acted under color of state law, but whether by their

2

actions Defendants violated Plaintiffs’ constitutional rights.

3

A. FOURTH AMENDMENT CLAIMS

4

Under the Fourth Amendment, “[t]he right of the people to be secure in their persons,

5

houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and

6

no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. “The Fourth

7

Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those

8

which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citations omitted).
The Court proceeds first to evaluate the reasonableness of the searches at the Property, then

9
10

turns to the reasonableness of the subsequent seizure of Plaintiffs’ personal property.
1. First Cause of Action: Unreasonable Search

11

Plaintiffs allege that by searching the yard at their Property without a warrant, Defendants

12
13

violated their Fourth Amendment rights. Defendants counter that the search was constitutional

14

because the area was plainly observable to the public from the street.

15

Defendants concede that Gipson searched the yard at the Property without a warrant, but

16

argue that even if the stored Construction Materials were within the curtilage of the Property, as

17

Plaintiffs argue, the items were unprotected from outside observation.6 It is well-settled that if

18

items within the curtilage are “readily visible,” a warrant to search such an area is not required

19

because “officers [need not] shield their eyes when passing by a home on public thoroughfares.”

20

United States v. Perea-Rey, 680 F.3d 1179, 1186 (9th Cir. 2012) (citing California v. Ciraolo, 476

21

U.S. 207, 213 (1986)).

22

Such are the conditions here. Evidence in the record illustrates that Defendants searched the

23

yard at Plaintiffs’ property in a residential neighborhood, and Plaintiffs made no effort to shield the

24

Construction Materials from view as they were stored within the yard behind a wire fence. Because

25

from the street Gipson could plainly see the materials through the wire fence, a warrant for the

26
6

27
28

This analysis is aided by the photographs of the Property. The parties do not dispute that these
photographs accurately depict the Property’s yard, including the Construction Materials that lay
within its boundaries.
15

1

search was not required. Id., at 1186. Accordingly, the Court concludes that Gipson’s search was

2

reasonable. As no genuine issues of material fact remain for trial, the Court will grant summary

3

judgment on this cause of action in favor of Defendants.
2. Second Cause of Action: Unreasonable Seizure

4

Whether or not the materials could be seen from the street, the Fourth Amendment’s

5
6

warrant requirement applies to entries onto private property to abate known nuisances. Conner v.

7

City of Santa Ana, 897 F.2d 1487, 1490 (9th Cir. 1990). On that basis, Plaintiffs assert that the

8

Defendants’ subsequent warrantless entry on their private property for the purpose of seizing their

9

personal property was unreasonable and violative of their Fourth Amendment rights.

10

“It is clear that the warrant requirement of the fourth amendment applies to entries onto

11

private land to search for and abate suspected nuisances.” Id., at 1490 (footnote omitted) (citing

12

Michigan v. Tyler, 436 U.S. 499, 504-07 (1978); Camara v. Municipal Court, 387 U.S. 523, 530

13

(1967)); see also Schneider v. County of San Diego, 28 F.3d 89, 91 (9th Cir. 1994). It is also clear

14

that removing personal property is a seizure within the meaning of the Fourth Amendment. See e.g.

15

Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005).
Defendants concede that they entered the Property and seized the Construction Materials

16
17

without a warrant or consent, but make two arguments in support of their contention that the

18

warrantless trespass and seizure did not violate Fourth Amendment principles. First, they aver that

19

the seizure was lawful because Plaintiffs had no reasonable expectation of privacy in the area from

20

which the government seized the materials in plain view. Second, Defendants argue that even if the

21

area does fall within the umbrella of Fourth Amendment protections, conditions at the Property

22

“posed an immediate threat or danger to the health of neighboring children,” and this qualifies as an

23

emergency exception to the warrant requirement. See Doc. 72-1.

24

//

25

//

26

//

27

//

28

//
16

a. Reasonable Expectation of Privacy

1

Defendants argue that because the Construction Materials were in plain view and the fence

2
3

was partially knocked down, Plaintiffs had no reasonable expectation of privacy in the area

4

searched and from which the City seized such materials.7
Defendants conflate seizures with searches. Where, like here, the City posits that Plaintiffs’

5
6

claims necessarily fail absent a showing of a reasonable expectation of privacy, the City

7

“misapprehends the appropriate Fourth Amendment inquiry, as well as the fundamental nature of

8

the interests it protects.” Lavan v. City of Los Angeles, 693 F.3d 1022, 1027 (9th Cir. 2012). In this

9

analysis, “[t]he reasonableness of [an individual’s] expectation of privacy is irrelevant as to the

10

question before us: whether the Fourth Amendment protects [their] unabandoned property from

11

unreasonable seizures. Id. (emphasis added). Contrary to Defendants’ interpretation, the Fourth

12

Amendment protects both types of expectations. Id.

13

Certainly whether a search is unconstitutional hinges on whether it pierces an individual’s

14

reasonable expectation of privacy. See, e.g., id. (“A ‘search’ occurs when the government intrudes

15

upon an expectation of privacy that society is prepared to consider reasonable.”) (citing United

16

States v. Jacobsen, 466 U.S. 109, 113 (1984)).

17

But the same cannot be said about seizures. The Supreme Court has made absolutely clear

18

that the Fourth Amendment “protects possessory and liberty interests . . . even when privacy rights

19

are not implicated.” Soldal v. Cook County, 506 U.S. 56, 63-64 & n. 8 (1992); see e.g. United

20

States v. Jones, 132 S.Ct. 945, 950-51 (2012) (finding that a reasonable expectation of privacy is

21

not required to trigger Fourth Amendment protections). If searches are perception, seizures are

22

reception. A seizure “occurs when there is some meaningful interference with an individual’s

23

possessory interests in that property.” Lavan, 693 F.3d at 1027 (citing Jacobsen, 466 U.S. at 113).

24

7

25
26
27
28

Even should the Court consider privacy interests in the context of a warrantless seizure, it is
“easily understood from our daily experience” that such a residential yard is curtilage. Oliver v.
United States, 466 U.S. 170, 182 n. 12 (1984); see also United States v. Struckman, 603 F.3d 731,
739 (9th Cir. 2010) (applying Dunn factors and finding that “a small, enclosed yard adjacent to a
home in a residential neighborhood [ ] is unquestionably such a ‘clearly marked’ area ‘to which the
activity of home life extends,’ and so is ‘curtilage’ subject to the Fourth Amendment protection.”)
(quoting Oliver, 466 U.S. at 182 n. 12); see also Perea-Rey, 680 F.3d at 1188 n. 5 (finding that
individuals had a justified expectation of privacy in a “private yard or carport”).
17

In Jones, the Supreme Court specifically rejected the government’s argument that the

1
2

Fourth Amendment is not implicated because Jones had no reasonable expectation of privacy in an

3

area “visible to all.” 132 S.Ct. at 950. Indeed, the Court emphasized that it “need not address the

4

Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the

5

Katz formulation [the reasonable expectation of privacy test].” Id., at 950. The Court noted that

6

Katz augmented, rather than limited, Fourth Amendment protections. Id., at 951.
In the wake of Jones, the Ninth Circuit, in Lavan, analyzed the constitutionality of a city’s

7
8

warrantless seizure of homeless individuals’ personal property from a public sidewalk. 693 F.3d

9

1022. Citing Jones, the Court concluded that:

10

[Individuals] need not show a reasonable expectation of privacy to enjoy the
protection of the Fourth Amendment against seizures of their unabandoned
property. Although the district court determined that [the individuals] had a
reasonable expectation of privacy in their [personal property], we need not
decide that question because the constitutional standard is whether there was
“some meaningful interference” with Plaintiffs’ possessory interest in the
property.

11
12
13
14

Id., at 1027-28 (emphasis in the original).

15
16
17
18
19
20

Likewise here, the analysis turns not on privacy rights, but instead on whether there was
“some meaningful interference” with Plaintiffs’ possessory interest in their personal property.
There was. It is undisputed that Defendants seized and disposed of Plaintiffs’ Construction
Materials and Defendants did not have a warrant to do so. On that basis, the Court concludes that
the seizure was per se unreasonable. Therefore, the proper inquiry is whether there exists an
applicable exception to the warrant requirement. See id., at 1027.

21

b. Exceptions to the Warrant Requirement

22
23

Defendants acknowledge that it is well-settled8 that a search or seizure carried out on private
property without a warrant is per se unreasonable unless it falls within one of a “carefully defined”

24
25
26
27
28

8

“[A]bsent exigent circumstances, ‘officials engaged in the abatement of a public nuisance must have
a warrant’ to enter a backyard; ‘it is the prospective invasion of constitutionally protected interests by
an entry onto property and not the purpose of the entry which calls forth the warrant requirement.’”
Conner, 897 F.2d at 1490-91; see Schneider, 28 F.3d at 91 (“‘[E]xcept in certain carefully defined
classes of cases, a search of private property without proper consent is unreasonable unless it has
been authorized by a valid search warrant.’”); see also Miranda, 429 F.3d at 862 (“‘A seizure
18

1

set of exceptions based on the presence of “exigent circumstances.” Doc. 72-1, at 19:13-16 (citing

2

United States v. Device More or Less Labeled Theramatic, 641 F.2d 1289, 1291 (9th Cir. 1981)).

3

Defendants contend that, because conditions at the Property were so dire, they fall within the

4

emergency exception to the warrant requirement. Defendants assert that during Gipson’s first visit

5

to the Property on June 8, 2010, she observed a child at the Property, playing on the pile of

6

Construction Materials in the yard, and for that reason and due to the Property’s proximity to the

7

elementary school and the nature of children, Defendants state that Gipson concluded that

8

conditions at the Property posed an immediate threat of injury or danger. SSUMF ¶¶ 9, 42.

9

Although it is Defendants’ burden to justify the warrantless seizure, Defendants cite no legal

10

authority in support of their argument. See e.g. California v. Acevedo, 500 U.S. 565, 590 n.5 (1991)

11

(quoting United States v. Jeffers, 342 U.S. 48, 51 (1951) (“[B]ecause each exception to the warrant

12

requirement invariably impinges to some extent on the protective purpose of the Fourth

13

Amendment, the few situations in which a search may be conducted in the absence of a warrant

14

have been carefully delineated and ‘the burden is on those seeking the exemption to show the need

15

for it.’”).

16

The question is whether the present record – in which it is undisputed that the Construction

17

Materials discovered by Defendant Gipson in June 2010, but left for several months within a yard

18

in a residential neighborhood behind a partially-downed fence and across the street from an

19

elementary school – constitutes a condition which qualifies as an emergency exemption justifying a

20

warrantless seizure, thus entitling Defendants to summary judgment.

21

It does not. The fact-determinative test for an emergency exception is the contemporaneous

22

presence of actual and immediate serious consequences. See e.g. Ryburn v. Huff, 132 S.Ct. 987, 990

23

(2012) (finding that “the Fourth Amendment permits an officer to enter a residence if the officer

24

has a reasonable basis for concluding that there is an imminent threat of violence”); see also Sims v.

25

Stanton, 706 F.3d 954, 961 (9th Cir.) cert. granted, decision rev’d on other grounds, 134 S.Ct. 3,

26

(2013) (“The burden to show exigent circumstances rests on the officer, who must “point [ ] to

27
28

conducted without a warrant is per se unreasonable under the Fourth Amendment-subject only to a
few specifically established and well delineated exceptions.’”).
19

1

some real immediate and serious consequences if he postponed action to get a warrant.”) (internal

2

quotation marks and citation omitted) (quoting Welsh v. Wisconsin, 466 U.S. 740, 749-50, (1984)).

3

Defendants posit that Gipson, the City’s Code Enforcement Officer, reasonably concluded

4

that the abatement action on September 24, 2010, could not be postponed to seek a warrant because

5

immediate action was required to avert imminent serious harm to children at the Property. Record

6

evidence does not support this conclusion. The crux of the emergency exception is that an

7

immediate action is necessary to avert looming serious consequences. The requisite urgency is

8

simply absent here. It is undisputed that the abatement action did not occur until late September

9

2010, three months after Gipson’s first visit to the Property in early June when she first drew the

10

conclusion that conditions posed an immediate threat to the public. Yet, despite her conclusion in

11

June, two months elapsed before Gipson planned the abatement, and more than three months

12

elapsed before Defendants entered Plaintiffs’ Property and took the Construction Materials away.

13

There was ample time in the interim to apply for and get a warrant. It cannot be both reasonable to

14

wait three months for abatement and unreasonable to wait for a warrant.

15

There can be no question that delayed abatement to get a warrant could be tolerated,

16

because delayed abatement was tolerated. Evidence in the record shows that after the June search,

17

Gipson acted to instigate the nuisance abatement process, but not immediately. Instead, she waited

18

a week to send a notice of abatement to the property owner, in which she granted the owner 15 days

19

to abate. In other words, notwithstanding the asserted imminent harm, Gipson did not actually

20

contemplate serious immediate consequences because, as her letter indicates, she determined that

21

abatement could wait at least 22 days. Because the record evidence illustrates that no material

22

change occurred at the Property between June and September 2010, no basis exists for finding that

23

the threat of danger was somehow heightened in September 2010, when Defendants finally

24

performed the abatement. Gipson’s asserted illness, Defendants’ justification for the delayed

25

action, has no effect on whether emergency conditions existed at the Property. If anything,

26

Gipson’s inactivity between June and August 2010, due to illness or otherwise, emphasizes that the

27

potential for negative consequences remained abstract. Defendants swing between asserting that

28

Gipson observed a child actually playing on the pile of materials at the Property, and conceding that
20

1

Gipson’s concerns were speculative, as she testified at her deposition. This fact, ultimately, is not

2

material. Whatever Gipson’s observations in June, they do not prove an emergency in September

3

for purposes of summary judgment.

4

On the actual day of the seizure, September 24, 2010, Defendants’ entire argument is that:

5

exigent circumstances existed at the time they entered Plaintiffs’ property to abate the
public nuisance. Gipson, as the code enforcement officer, concluded that the pile of debris
on said property posed an immediate threat or danger to the health of neighboring children.

6
7
8

Id., at 19:17-20. This is speculation. Defendants do not assert that the pile was about to fall on

9

them, nor do they describe any other imminent calamity if they failed to act. Hypothesizing about

10

what could happen sometime in the future is not the same as a real contemporaneous emergency.

11

See e.g. Allen v. Cnty. of Lake, No. 14-CV-03934-TEH, 2014 WL 5211432, at *3 (N.D. Cal. Oct.

12

14, 2014) (in the context of a defendant describing ongoing conditions as an “emergency” for the

13

purpose of an exigency exception, finding that a “mere declaration of an immediate threat does not

14

make it so”) (quoting Sibron v. New York, 392 U.S. 40, 61 (1968)). More is required to meet

15

Defendants’ burden to prove that circumstances fit the narrow emergency exception to the warrant

16

requirement. See e.g. Ryburn, 132 S.Ct. 987; Welsh, 466 U.S. 740. Defendants do not offer, and the

17

Court cannot find, support for the proposition that such speculative concerns rise to the level of an

18

emergency. And Defendants’ characterization of Plaintiffs’ Construction Materials as “junk, trash,

19

and debris,” is of no mind because there is “no trashy house exception to the warrant requirement.”

20

Olvera v. City of Modesto, No. 1:11-CV-00540 AWI, 2014 WL 3858362 (E.D. Cal. Aug. 6, 2014)

21

(citing United States v. Harrison, 689 F.3d 301, 310-11 (3d Cir. 2012)).

22

The months-long delay between discovery and abatement is fatal to Defendants’ argument.

23

The Court concludes that circumstances do not fall within one of the well delineated exceptions to

24

the warrant requirement because, on the record evidence before the Court, Defendants do not meet

25

their burden to show real, immediate, and serious consequences if Defendants delayed abatement

26

until they could get a warrant.
Accordingly, summary judgment is inappropriate as to this claim.

27
28

//
21

1

B. FOURTEENTH AMENDMENT CLAIM

2

“Procedural due process imposes constraints on governmental decisions which deprive

3

individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the

4

Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976); see also

5

MacLean v. Dep’t of Homeland Sec., 543 F.3d 1145, 1151 (9th Cir. 2008). Mathews “directs us to

6

examine:”

9

first, the private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.

10

Brittain v. Hansen, 451 F.3d 982, 1000 (9th Cir. 2006) (quoting Mathews, 424 U.S. at 334-35). In

11

a court’s “balancing” of the Mathews factors, “the requirements of due process are ‘flexible and call

12

for such procedural protections as the particular situation demands.’” Vasquez v. Rackauckas, 734

13

F.3d 1025, 1044 (9th Cir. 2013) (citing Wilkinson v. Austin, 545 U.S. 209, 224-25 (2005)) (quoting

14

Morrissey v. Brewer, 408 U.S. 471, 481 (1972)); see also Wynar v. Douglas Cnty. School Dist., 728

15

F.3d 1062, 1073 (9th Cir. 2013).

7
8

16

To proceed, “[w]e analyze a procedural due process claim in two steps. The first asks

17

whether there exists a liberty or property interest which has been interfered with by the State; the

18

second examines whether the procedures attendant upon that deprivation were constitutionally

19

sufficient.” Vasquez, 734 F.3d at 1042 (quoting United States v. Juvenile Male, 670 F.3d 999, 1013

20

(9th Cir. 2012), cert. denied, 133 S.Ct. 234 (2012) (internal quotation marks and alteration

21

omitted)).

22

Defendants assert that summary judgment on Plaintiffs’ due process action is appropriate

23

because, they argue, the Code Enforcement Officer afforded Plaintiffs their procedural due process

24

rights “on several occasions” throughout the abatement process, but that the Plaintiffs failed to

25

exercise those rights.

26

Plaintiffs contend that in violation of their rights to procedural due process under the

27

Fourteenth Amendment, Defendants failed to provide proper notice or a hearing prior to the

28

deprivation of their property.
22

1

Because the parties do not dispute that Defendants deprived Plaintiffs of their property

2

interest implicating their constitutional rights, the Court turns to the second prong, whether the

3

procedural processes were constitutionally sufficient. Due process requires: (1) “notice,” and (2) an

4

“opportunity to be heard at a meaningful time and in a meaningful manner.” Schneider, 28 F.3d at

5

92 (quoting Brock v. Roadway Express, Inc., 481 U.S. 252, 261 (1987)); Mathews v. Eldridge, 424

6

U.S. 319, 333 (1976) (“[t]he fundamental requirement of due process is the opportunity to be heard

7

‘at a meaningful time and in a meaningful manner.’” (quoting Armstrong v. Manzo, 380 U.S. 545,

8

552 (1965)); see also Villa-Anguiano v. Holder, 727 F.3d 873, 881 (9th Cir. 2013). Here, “a

9

meaningful time” describes predeprivation because the Supreme Court has repeatedly held that

10

“some form of hearing is required before an individual is finally deprived of a property interest.”

11

Mathews, 424 U.S. at 333 (citations omitted).

12
13

1. Notice
There is no dispute that the mailed notice was returned to the City, undelivered. SSUMF

14

¶ 34. Also, although parties do not agree on the exact date in either June or August, there is no

15

dispute that Gipson posted the “Notice of Violation” related to the nuisance abatement at the

16

property sometime before she deprived Plaintiffs of their personal property. SSUMF ¶ 44; see Doc.

17

72-11, 12, 15. Dated June 15, 2010, the posted notice apparently was a copy of the June 15, 2015

18

CED letter, but posted during the second search in August 2010. See Doc. 72-11, 12. In the letter,

19

Gipson characterized the nuisance at the Property as “junk, trash, debris,” gave the property owner

20

15 days to abate the identified nuisance, and that should they fail to do so, the City was authorized

21

to perform the abatement pursuant to the Taft Municipal Code.

22

Defendants present no evidence to show that Plaintiffs were likely to see the posted notice.

23

Defendants state that Gipson looked for the property owner or someone at the Property, but it was

24

“apparently vacant.”

25

Plaintiffs argue that Defendants neither provided sufficient notice nor reasonably afforded

26

the opportunity to present their objections before seizing and disposing of their Construction

27

Materials. See Jones v. Flowers, 547 U.S. 220 (2006); Mullane v. Cent. Hanover Bank & Trust Co.,

28

339 U.S. 306, 314 (1950).
23

1

In Jones v. Flowers, the Supreme Court made plain that when the government sends notice

2

by mail and the notice “is returned unclaimed, the State must take additional reasonable steps to

3

attempt to provide notice to the property owner before [depriving him of his property], if it is

4

practicable to do so.” 547 U.S. at 225; see also Yi Tu v. Nat’l Transp. Safety Bd., 470 F.3d 941 (9th

5

Cir. 2006) (same). A party need not actually receive notice, rather, “due process requires the

6

government to provide “notice reasonably calculated, under all the circumstances, to apprise

7

interested parties of the pendency of the action and afford them an opportunity to present their

8

objections.” Id., at 226 (quoting Mullane, 339 U.S. at 314). Courts have deemed notice

9

constitutionally sufficient when “it was reasonably calculated to reach the intended recipient when

10

sent.” Id.. “Accordingly, ‘the government [must] consider unique information about an intended

11

recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the

12

ordinary case.” Yi Tu, 470 F.3d at 945 (quoting Jones, 547 U.S. at 230).

13

Here, Defendants repeatedly emphasize that the Code Enforcement office knew that

14

Meredith and Darquea lived and received mail at the Bakersfield address, not at the Property in

15

Taft. Gipson specifically noted during the Second Search that the Property was likely vacant and

16

record evidence indicates that Plaintiffs did not frequent the Property. A trier of fact could

17

conclude that under these unique circumstances the posted notice left at the Property was not

18

reasonably calculated to reach the intended recipient. Gipson posted the notice, six weeks passed,

19

but there is no evidence that in that time and before seizing and disposing of Plaintiffs’ personal

20

property that she took any additional practical measures to effectuate notice. Nothing stopped her

21

from sending a non-certified letter for the price of a stamp. See e.g. Jones, 547 U.S. at 230 (when a

22

letter is returned by the post office, the sender will ordinarily attempt to resend it, if it is practicable

23

to do so). Thus, “additional reasonable steps were available to the State.” Id., at 225. Plaintiffs’

24

testimony, supported by the record evidence, is that notice indeed did not reach its intended

25

audience. On the record before the Court, where Defendants substantiate notice on the basis of a

26

returned piece of unclaimed mail and a posted notice which may not have been reasonably

27

calculated to reach the intended recipient, and no one otherwise made an effort to contact Plaintiffs

28
24

1

before depriving them of personal property, the Court is not compelled to conclude that such notice

2

is sufficient without some measure of fact-finding.

3
4

2. Meaningful Opportunity to Be Heard
Even assuming, arguendo, that notice was sufficient, genuine issues of material fact exist

5

about an opportunity for a meaningful hearing. The posted notice indicated that Plaintiffs “may

6

request an appeal with the City Council” within a specified time. See SSUMF ¶ 31; Docs. 72-11,

7

12. Referencing the possibility of an “appeal” suggests that an initial determination had already

8

been reached by some process, one which did not include the Plaintiffs’ participation. Also implicit

9

in the phrase “may request,” is the possibility that the request could be denied. See Schneider, 28

10

F.3d at 92 (“for the notice to satisfy due process, it must be of such nature as reasonably to convey

11

the required information”). The instant notice, however, did not necessarily state that Plaintiffs

12

would have an opportunity to be heard before being deprived of their property.

13

Otherwise, Defendants provide no additional information about the predeprivation process

14

available to Plaintiffs, and nor does their posted notice or CED letter. The notice from the City of

15

Taft Code Enforcement Division reads:

16
17

… in the case of a “Notice and Order” you may request an appeal with the city
council providing this request is made in writing, and is received by this department
within the allotted time stated on the letter.

18

Doc. 72-12. This directs a property owner to “the letter” for clarification about timing, but the

19

letter does not actually supply that information. The letter identifies the nuisance, then states:

20
21
22
23
24
25
26
27
28

We understand that prior to this letter you may not have known that the situation
constituted a violation of the City Code. However, now that the violation has been
made known to you, we ask for your cooperation in taking whatever action is
necessary to correct the problem. We would hope that within the time specified
above [15 days], everything is corrected and that a spirit of cooperation is
established between yourself and the City.
Should you fail to abate the nuisance, the City will abate or cause to abate the
nuisance, and the cost of doing so will become your personal obligation and/or will
be assessed against the property. Further, the abatement expense can be foreclosed
upon or made a tax lien to be collected as a property tax.
If you have any questions regarding this matter, please contact my office at
[Gipson’s direct office number].
25

1

See Doc. 72-11, 12. The letter says nothing about an appeal or a hearing process. The letter neither

2

specifies the allotted time for an appeal, nor does it discuss the appeal process or timing in any way.

3

See id.

4

In Vasquez, the Ninth Circuit held that a county violated Plaintiff’s procedural due process

5

rights by enforcing a City’s order against plaintiffs without a constitutionally adequate procedure

6

for them to challenge the relevant determination before they were subjected to the terms of the

7

order. 734 F.3d at 1045-46.

8

In the instant case, the Defendants present no evidence that a requested appeal hearing

9

would necessarily occur before submitting the Plaintiffs to the nuisance abatement, or if the appeal

10

would be a post-deprivation remedy. The date of the letter further confuses the issue. It is unclear

11

if the appeals period would be tied to the date of the letter, June 15, 2010, or the date Defendants

12

assert Gipson posted it during the second search, August 11, 2010. In any event, as in Vasquez,

13

“the precise nature of the process and the potential relief it offers remain unclear.” Id., at 1049. At

14

bottom, the posted notice’s statement about the potential for a possible appeal at some unknown

15

future date does not necessarily mean that the process provides a meaningful opportunity for

16

Plaintiffs to be heard. Defendants do not otherwise assert that any hearing ever occurred prior to

17

finally depriving Plaintiffs of their personal property in September 2010.

18

The Court finds that where, like here, the government failed to provide a hearing before

19

Plaintiffs were finally deprived of their property interest, factors “weigh clearly in favor” of the

20

conclusion that it violated Plaintiffs’ procedural due process rights. Vasquez, 734 F.3d at 1044

21

(finding that the district court “correctly determined that the Mathews factors weigh clearly in favor

22

of the conclusion that the City violated Plaintiffs’ procedural due process rights by failing to

23

provide any form of hearing before subjecting them to the Order).

24
25

3. Postdeprivation Process
Defendants’ implicit argument is that “in certain circumstances, a state can cure what would

26

otherwise be an unconstitutional deprivation of ‘life, liberty or property’ by providing adequate

27

post-deprivation remedies.” Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001).

28
26

Record evidence indicates that the City Council held a post-deprivation hearing in March

1
2

2011, approximately six months after the Plaintiffs’ personal property had been seized and

3

discarded. Evidence suggests that the topic of the hearing was limited to the City’s potential lien on

4

the Property, not the validity of the already concluded abatement process. Therefore, “[a]ssuming,

5

without deciding, that the deprivation of liberty interests that Plaintiffs have suffered could

6

conceivably have been remedied by some form of postdeprivation procedure, we conclude that

7

[Defendants have] provided no such adequate process. Vasquez, 734 F.3d 1025, 1048. As the Ninth

8

Circuit did in Vasquez “[w]e proceed in this fashion because the parties have not briefed whether

9

the deprivations of liberty at issue here fall into the limited circumstances in which [p]ost-

10

deprivation procedures may provide adequate due process.” Id., at 1048 n. 22 (citing Albright v.

11

Oliver, 510 U.S. 266, 315 n. 37 (1994) (Stevens, J., dissenting); Zinermon v. Burch, 494 U.S. 113,

12

132 (1990) (noting that “in situations where a predeprivation hearing is unduly burdensome in

13

proportion to the liberty interest at stake . . . post-deprivation remedies may satisfy due process”);

14

Bailey v. Pataki, 708 F.3d 391, 405 (2d Cir. 2013) (quoting Zinermon, 494 U.S. at 132) (“[W]here

15

the State feasibly can provide a predeprivation hearing . . . it generally must do so regardless of the

16

adequacy of a post-deprivation . . . remedy.”); Zimmerman v. City of Oakland, 255 F.3d at 738

17

(holding post-deprivation remedies inadequate where a state officer “acted pursuant to some

18

established procedure,” as opposed to in “random, unpredictable, and unauthorized ways”)).

19

At this stage, the Court is not persuaded that the mailed but undelivered first notice, or the

20

posted notice about the potential for a possible future appeal, or the post-deprivation lien hearing,

21

respectively or collectively, satisfy the due process requirement for notice and a meaningful

22

opportunity to be heard. See Mathews, 424 U.S. at 333. Based on the record before the Court,

23

genuine issues of material fact exist whether the Code Enforcement Officer provided a meaningful

24

opportunity for Plaintiffs to be heard before subjecting them to deprivation of their property

25

interests.
Therefore, summary adjudication of the due process action is inappropriate.

26
27

//

28

//
27

1
2

III.

CONCLUSION AND ORDER
The Court has determined, supra, that Defendants’ search at Plaintiffs’ Property comports

3

with the Fourth Amendment and, as no genuine issues of material fact persist for a trier of fact,

4

summary judgment is warranted as to Plaintiffs’ first cause of action. As to Plaintiffs’ Section 1983

5

claim for an unlawfully warrantless seizure under the Fourth Amendment, however, summary

6

judgment is inappropriate because based on the record evidence, an exception to the warrant

7

requirement does not apply. Finally, there are genuine issues of material fact whether Defendant

8

Gipson violated Plaintiffs’ procedural due process rights under the Fourteenth Amendment,

9

therefore, summary judgment is also inappropriate on Plaintiffs’ procedural due process claim.

10
11
12

Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (Doc. 72) is
GRANTED IN PART and DENIED IN PART, as follows:

13

a) the motion is GRANTED as to Plaintiffs’ first cause of action under Section 1983
related to Defendants’ warrantless but reasonable search at the Property; and,

14

b) because material disputes of fact persist for trial, the motion is DENIED as to
Plaintiffs’ second Section 1983 claim alleging warrantless seizure in violation of the
Fourth Amendment; and,

15
16
17

c) because genuine issues of material fact also persist whether Defendant Gipson
violated Plaintiffs’ procedural due process rights under the Fourteenth Amendment,
the motion is likewise DENIED as to this claim.

18
19
20

IT IS SO ORDERED.
21
22

Dated:

/s/ Lawrence J. O’Neill

May 28, 2015

UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28
28