Bonilla et al. v. California Highway Patrol, et al.
Filing
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AMENDED ORDER signed by District Judge Leslie E. Kobayashi on 1/17/2017 GRANTING IN PART and DENYING IN PART California Highway Patrol's 7 Motion to Dismiss Complaint. The Motion is GRANTED insofar as Plaintiffs' claims against the H ighway Patrol in Counts I and II are HEREBY DISMISSED, and their claim against the Highway Patrol in Count IV is HEREBY DISMISSED WITH PREJUDICE. The Motion is DENIED insofar as the dismissal of Plaintiffs' claims against the Highway Patrol in Counts I and II are WITHOUT PREJUDICE, and the Motion is DENIED as to Plaintiffs' claim against the Highway Patrol in Count III. This Court GRANTS Plaintiffs leave to file an amended complaint to address the defects in their claims against the Highway Patrol in Counts I and II. Plaintiffs do no have leave to make any other amendments to the Complaint. Plaintiffs shall file their amended complaint by 2/17/2017. (Jackson, T)
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IN THE UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GUILLERMO BONILLA, SANDRA
AMAYA BONILLA,
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Plaintiffs,
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vs.
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CALIFORNIA HIGHWAY PATROL AN )
AGENCY OF THE STATE OF
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CALIFORNIA; OFFICER MCKENZIE )
AND SGT. PETERSON and DOES 1 )
TO 50,
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Defendants.
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_____________________________ )
2:16-CV-01742L LEK
AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
CALIFORNIA HIGHWAY PATROL’S MOTION TO DISMISS COMPLAINT
Before the Court is Defendant California Highway
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Patrol’s (“Highway Patrol”) Motion to Dismiss Complaint
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(“Motion”), filed on August 1, 2016.
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Guillermo Bonilla and Sandra Amaya Bonilla (“Plaintiffs”) filed
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their memorandum in opposition on September 7, 2016, and the
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Highway Patrol filed its reply on September 14, 2016.
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nos. 12, 17.]
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disposition without a hearing pursuant to L.R. 230(g) of the
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Local Rules of the United States District Court for the Eastern
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District of California (“Local Rules”).
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consideration of the Motion, supporting and opposing memoranda,
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and the relevant legal authority, the Highway Patrol’s Motion is
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HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set
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forth below.
[Dkt. no. 7.]
Plaintiffs
[Dkt.
The Court finds this matter suitable for
After careful
BACKGROUND
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Plaintiffs, who were proceeding pro se at the time,
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filed their Complaint in the Superior Court of California, County
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of Sacramento, on November 24, 2015.
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the case pursuant to 28 U.S.C. §§ 1331 and 1441(a), based on
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federal question jurisdiction.
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filed 7/25/16 (dkt. no. 1), at ¶ 4.]
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Defendants “Officer McKenzie and Sgt. Peterson.”
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Removal of Action, Exh. A (Complaint) at 1.]
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The Highway Patrol removed
[Notice of Removal of Action,
The Complaint also names as
[Notice of
Defendants McKenzie
and Peterson have not yet been served.
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The Complaint alleges that, on August 27, 2014, on the
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I-80 in Sacramento County, Highway Patrol agents seized
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Plaintiffs’ 2000 utility flatbed and 2005 Freightliner Truck
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(collectively “the property”).
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Patrol and its agents, Defendants McKenzie and Peterson (all
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collectively “Defendants”), “were presented with evidence that
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the property seized was, not for hire, and in the process of
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being shipped for purposes of sale.”
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Action, Exh. A (Complaint) at 1 Cause of Action – General
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Negligence.1]
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presented with evidence that Plaintiffs “had taken all lawful
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steps required for the release of the property,” Defendants “were
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After the seizure, the Highway
[Notice of Removal of
Plaintiffs allege that, because Defendants were
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The Complaint consists of several documents that are not
consecutively paginated.
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under a mandatory, non-discretionary duty to release the property
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to Plaintiffs but failed and refused to do so.”
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Plaintiffs argue that the conditions of release that Defendants
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imposed were “not necessary under law,” and Defendants “knew or
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should have known that the property was not for hire and was
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being moved only for purposes of sale and not for reasons that
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required repairs, registration or permits.”
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cause of action alleges that Defendants recklessly and
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negligently refused to release Plaintiffs’ property without a
[Id.]
[Id.]
The first
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legal basis (“Count I”).
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duty, Plaintiffs allegedly suffered financial loss, “including
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loss of the sale of the property, loss of use of the property and
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unnecessary costs and expenses including but not limited to
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storage fees in an amount of $250,000.00.”
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As a result of Defendants’ breach of
[Id.]
Plaintiffs also allege: an intentional tort claim
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because Defendants refused to release Plaintiffs’ property even
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though they knew that the property was pending sale to a third
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party (“Count II”); [Complaint, 2 Cause of Action – Intentional
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Tort;] violation of the mandatory duties under California Vehicle
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Code §§ 22651 and 34660 (“Count III”); [id., 3rd Cause –
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Mandatory Duty;] and a 42 U.S.C. § 1983 claim alleging
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deprivation of property without due process, in violation of the
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Fourteenth Amendment (“Count IV”) [id., 4th Cause – 42 U.S.C.
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Section 1983].
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In the instant Motion, the Highway Patrol alleges:
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Counts I and II fail based on California Government Code § 815
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because there is no statutory basis for liability; Count III
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fails because neither § 22651 nor § 34660 imposes a mandatory
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duty; Counts I, II, and III also fail because the Highway Patrol
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is immune from liability under California Government Code
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§ 820.2; and Count IV fails because the Highway Patrol is not a
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“person” for purposes of a § 1983 claim.
DISCUSSION
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I.
Counts I and II
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Counts I, II, and III allege state law claims that this
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Court has supplemental jurisdiction over pursuant to 28 U.S.C.
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§ 1367.
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1:14-cv-02049-SKO, 2016 WL 4539944, at *3 (E.D. Cal. Aug. 30,
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2016) (“When a district court . . . hears state law claims based
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on supplemental jurisdiction, the court applies state substantive
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law to the state law claims.” (some citations omitted) (citing
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Bass v. First Pac. Networks, Inc., 219 F.3d 1052, 1055 n.2 (9th
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Cir. 2000))).
See, e.g., Cozad v. Astrazeneca LP, Case No.
California Government Code § 815 states:
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Except as otherwise provided by statute:
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(a) A public entity is not liable for an injury,
whether such injury arises out of an act or
omission of the public entity or a public employee
or any other person.
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(b) The liability of a public entity established
by this part (commencing with Section 814) is
subject to any immunity of the public entity
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provided by statute, including this part, and is
subject to any defenses that would be available to
the public entity if it were a private person.
The California Supreme Court has stated that, under § 815,
direct tort liability of public entities must be
based on a specific statute declaring them to be
liable, or at least creating some specific duty of
care, and not on the general tort provisions of
Civil Code section 1714. Otherwise, the general
rule of immunity for public entities would be
largely eroded by the routine application of
general tort principles. (See, e.g., Zelig [v.
Cty. of Los Angeles], 27 Cal. 4th [1112,]
1131–1132, 119 Cal. Rptr. 2d 709, 45 P.3d 1171
[(2002)]; Hoff v. Vacaville Unified School Dist.
(1998) 19 Cal. 4th 925, 932, 80 Cal. Rptr. 2d 811,
968 P.2d 522, and cases cited.) As Zelig
observed, quoting from an earlier case, “‘“the
intent of the [Tort Claims Act] is not to expand
the rights of plaintiffs in suits against
governmental entities, but to confine potential
governmental liability to rigidly delineated
circumstances . . . .”’” (Zelig, supra, at
p. 1127, 119 Cal. Rptr. 2d 709, 45 P.3d 1171.)
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Eastburn v. Reg’l Fire Prot. Auth., 80 P.3d 656, 660 (Cal. 2003)
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(some alterations in Eastburn) (emphasis added).
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Further,
[t]o state a cause of action, every fact essential
to the existence of statutory liability must be
pleaded with particularity, including the
existence of a statutory duty. Susman v. Los
Angeles, 269 Cal. App. 2d 803, 808, 75 Cal. Rptr.
240 (Cal. App. 2d Dist. 1969); Lopez [v. S. Cal.
Rapid Transit Dist.], 40 Cal. 3d 780, 795, 221
Cal. Rptr. 840, 710 P.2d 907 [(1985)]. “The facts
showing the existence of the claimed duty must be
alleged.” Since the duty of a governmental agency
can only be created by statute, the statute
claimed to establish the duty must be identified.
Searcy v. Hemet Unified Sch. Dist., 177 Cal. App.
3d 792, 802, 223 Cal. Rptr. 206 (Cal. App. 4th
Dist. 1986).
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D.K. ex rel. G.M. v. Solano Cty. Office of Educ., 667 F. Supp. 2d
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1184, 1198 (E.D. Cal. 2009).
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Plaintiffs argue that liability as to Counts I and II
is based on California Government Code § 815.2, which states:
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(a) A public entity is liable for injury
proximately caused by an act or omission of an
employee of the public entity within the scope of
his employment if the act or omission would, apart
from this section, have given rise to a cause of
action against that employee or his personal
representative.
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(b) Except as otherwise provided by statute, a
public entity is not liable for an injury
resulting from an act or omission of an employee
of the public entity where the employee is immune
from liability.
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Plaintiffs acknowledge that the Complaint does not cite § 815.2,
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but they argue that this is not fatal to their claims.
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as stated supra, the statutory basis for liability must be
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identified to state a cause of action.
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fail to state plausible claims for relief.
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Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss,
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a complaint must contain sufficient factual matter, accepted as
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true, to ‘state a claim to relief that is plausible on its
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face.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
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127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007))).
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Patrol’s Motion is therefore GRANTED insofar as Plaintiffs’
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claims against the Highway Patrol in Counts I and II are HEREBY
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DISMISSED.
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However,
Counts I and II therefore
See Ashcroft v.
The Highway
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“Whether dismissal is with or without prejudice will
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depend upon whether it is possible for Plaintiff to cure any
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defects.”
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6494705, at *3 (E.D. Cal. Nov. 1, 2016) (citing Vess v. Ciba-
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Geigy Corp. USA, 317 F.3d 1097, 1107–08 (9th Cir. 2003)
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(collecting cases)), report and recommendation adopted, 2016 WL
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7104173 (E.D. Cal. Dec. 6, 2016).
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that Counts I and II fail because they do not allege the
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requirements of California Government Code § 815.6, which states:
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Rodriguez v. Brown, 1:15-cv-01754-LJO-EPG-PC, 2016 WL
The Highway Patrol also argues
Where a public entity is under a mandatory duty
imposed by an enactment that is designed to
protect against the risk of a particular kind of
injury, the public entity is liable for an injury
of that kind proximately caused by its failure to
discharge the duty unless the public entity
establishes that it exercised reasonable diligence
to discharge the duty.
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See Motion at 5 (“In California, a private cause of action lies
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against a public entity only if the underlying enactment sets
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forth the elements of liability identified in California
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Government Code § 815.6.” (citing Haggis v. City of Los Angeles,
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22 Cal. 4th 490, 499-500 (2000))).
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stand for the proposition that all claims against a governmental
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entity must meet the requirements of § 815.6.
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Cal. 4th at 495 (stating that the four causes of action brought
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by the plaintiff were for breach of mandatory duties pursuant to
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§ 815.6).
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pursuant to § 815.6.
However, Haggis does not
See Haggis, 22
Plaintiffs do not bring either Count I or Count II
This Court therefore CONCLUDES that § 815.6
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does not apply.
Because it is possible for Plaintiffs to cure
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the defects in their claims against the Highway Patrol in
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Counts I and II, the dismissal is WITHOUT PREJUDICE.
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II.
Count III
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In contrast to Counts I and II, Count III expressly
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alleges that Defendants violated California Vehicle Code §§ 22651
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and 34660.
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fails to state a claim upon which relief can be granted because
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it does not plead a violation of a mandatory duty, as required by
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The instant Motion contends that Count III still
§ 815.6.
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Section 22651 sets forth various circumstances when a
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peace officer is permitted to remove a vehicle.
The Highway
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Patrol argues that language regarding removal is permissive, not
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mandatory, [Mem. in Supp. of Motion at 6,] but its argument
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misconstrues Count III.
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a mandatory duty to remove their property; they allege that
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Defendants had a mandatory duty to release their property after
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they were presented with evidence that Plaintiffs “had taken all
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lawful steps required for the release of the property,” but
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Plaintiffs do not allege that there was
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Defendants failed to do so.2
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Duty.]
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the return of a removed vehicle is mandatory.
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§ 22651(i)(4) (“A vehicle shall be released to the legal owner,
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as defined in Section 370, if the legal owner does all of the
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following”), (o)(3) (“For the purposes of this subdivision, the
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vehicle shall be released under either of the following
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circumstances”).
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[Complaint, 3rd Cause – Mandatory
Section 22651 does includes certain circumstances when
See, e.g.,
Similarly, § 34660(a) states that it is a misdemeanor
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for “[a] motor carrier of property, after its motor carrier
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permit has been suspended by the department, [to] continue[] to
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operate as a motor carrier,” and § 34660(d) allows the Highway
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Patrol to impound a vehicle operated in violation of subsection
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(a).
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released to the registered owner or authorized agent” upon the
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provision of the required driver’s license and proof of
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compliance with Division 14.8.5 of the Vehicle Code.
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Subsection (d) also states that the vehicle “shall be
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Thus, while
The Highway Patrol’s Motion includes additional
information about the circumstances surrounding the removal of
Plaintiffs’ property. However, this Court will not consider the
information because, as a general rule, this Court’s scope of
review in considering a motion to dismiss is limited to the
allegations in the complaint. See Daniels-Hall v. Nat’l Educ.
Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). Further, counsel’s
statements in a motion are not evidence. Cf. Barcamerica Int’l
USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, 593 n.4 (9th
Cir. 2002) (“[A]rguments and statements of counsel are not
evidence and do not create issues of material fact capable of
defeating an otherwise valid motion for summary judgment.”
(citation and internal quotation omitted)).
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the impounding of a vehicle under § 34660(d) is discretionary,
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once impounded, the release of the impounded vehicle is mandatory
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if the registered owner or authorized agent provides the required
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documentation.
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This Court therefore CONCLUDES that Count III alleges
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violations of mandatory duties under § 22651 and § 34660.
In
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light of this conclusion, this Court also rejects the Highway
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Patrol’s argument that it is immune from liability under
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California Government Code § 820.2.
Section 820.2 states:
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“Except as otherwise provided by statute, a public employee is
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not liable for an injury resulting from his act or omission where
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the act or omission was the result of the exercise of the
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discretion vested in him, whether or not such discretion be
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abused.”
(Emphasis added.)
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This Court therefore CONCLUDES that Count III states a
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plausible claim for relief against the Highway Patrol and DENIES
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the Highway Patrol’s Motion as to Count III.
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III. Section 1983
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Plaintiffs bring Count IV pursuant to 42 U.S.C. § 1983,
which states, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
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party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . .
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A state agency is not a “person” for purposes of a § 1983 claim
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for damages.
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58, 71 (1989); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,
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429 (1997).
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Gov’t Code § 11000(a).
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damages is not available against a public entity, but they
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emphasize that a § 1983 claim is available against the individual
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defendants.
See Will v. Mich. Dep’t of State Police, 491 U.S.
The Highway Patrol is a state agency.
See Cal.
Plaintiffs agree that a § 1983 claim for
[Mem. in Opp. at 7-8.]
In light of the foregoing, this Court CONCLUDES that
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Count IV fails to state a plausible claim against the Highway
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Patrol and that it is not possible to cure the defects in the
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claim by amendment.
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insofar as this Court DISMISSES Count IV WITH PREJUDICE.
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This Court therefore GRANTS the Motion
CONCLUSION
On the basis of the foregoing, the Highway Patrol’s
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Motion to Dismiss Complaint, filed August 1, 2016, is HEREBY
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GRANTED IN PART AND DENIED IN PART.
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insofar as Plaintiffs’ claims against the Highway Patrol in
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Counts I and II are HEREBY DISMISSED, and their claim against the
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Highway Patrol in Count IV is HEREBY DISMISSED WITH PREJUDICE.
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The Motion is DENIED insofar as the dismissal of Plaintiffs’
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claims against the Highway Patrol in Counts I and II are WITHOUT
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The Motion is GRANTED
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PREJUDICE, and the Motion is DENIED as to Plaintiffs’ claim
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against the Highway Patrol in Count III.3
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This Court GRANTS Plaintiffs leave to file an amended
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complaint to address the defects in their claims against the
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Highway Patrol in Counts I and II.
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to make any other amendments to the Complaint.
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file their amended complaint by February 17, 2017.
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fail to do so, or if the amended complaint fails to cure the
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defects in Counts I and II that this Court has identified in this
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Order, the claims that this Court has dismissed without prejudice
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will be dismissed with prejudice.
Plaintiffs do no have leave
Plaintiffs shall
If Plaintiffs
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IT IS SO ORDERED.
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DATED AT HONOLULU, HAWAII, January 17, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
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GUILLERMO BONILLA, ET AL. VS. CALIFORNIA HIGHWAY PATROL AN AGENCY
OF THE STATE OF CALIFORNIA, ET AL; 2:16-CV-01742 LEK; AMENDED
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CALIFORNIA
HIGHWAY PATROL’S MOTION TO DISMISS COMPLAINT
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This Court makes no findings or conclusions regarding
Plaintiffs’ claims against the other defendants.
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