Avendano-Ruiz v. City of Sebastopol, et al
Filing
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ORDER by Judge Richard Seeborg GRANTING 95 DEFENDANTS MOTION TO DISMISS COUNT THREE OF THE FOURTH AMENDED COMPLAINT.(cl, COURT STAFF) (Filed on 9/25/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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NAHUM AVENDANO-RUIZ,
Case No. 15-cv-03371-RS
Plaintiff,
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United States District Court
Northern District of California
v.
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CITY OF SEBASTOPOL, et al.,
Defendants.
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS COUNT THREE
OF THE FOURTH AMENDED
COMPLAINT
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I. Introduction
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On a Sunday morning in August 2014, Officer Charles Wong of the Sebastopol Police
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Department (“SPD”) stopped plaintiff Nahum Avendano-Ruiz for a traffic violation. Upon
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discovering that Avendano-Ruiz did not have a valid license and had previously been convicted of
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driving without a valid license, Officer Wong arranged for Avendano-Ruiz’s car to be towed and
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impounded for thirty days pursuant to California Vehicle Code section 14602.6. At the
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subsequent tow hearing, Avendano-Ruiz attempted to retrieve his car before the 30-day period
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expired, but the SPD and Chief Police Officer Jeremy Weaver ordered the impound to continue.
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Count Three of Avendano-Ruiz’s Fourth Amended Complaint (“FAC”) avers that the impounding
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of his car for thirty days was a physical taking of personal property without just compensation, in
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violation of the Fifth Amendment to the United States Constitution. Avendano-Ruiz contends that
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he and others similarly situated are entitled to be compensated for the reasonable rental value of
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their respective vehicles during the period of impoundment. Defendants City of Sebastopol and
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Sebastopol Police Department move to dismiss Count Three on the basis that the takings claim is
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not ripe for federal court adjudication and the FAC fails to allege facts sufficient to support a
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claim under the Takings Clause.
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Pursuant to Civil Local Rule 7-1(b), the motion is suitable for disposition without oral
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argument, and the hearing set for September 28, 2017, is vacated. Defendants’ motion to dismiss
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Count Three of the FAC is granted.
II. Background
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On July 21, 2015, Avendano-Ruiz filed the original Complaint on behalf of similarly
situated people against the City of Sebastopol, the SPD, and Chief Weaver in his personal and
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official capacities, asserting two claims for relief pursuant to 42 U.S.C. § 1983 and California
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United States District Court
Northern District of California
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Civil Code section 52.1. Defendants’ motion to dismiss Count Three of the First Amended
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Complaint (for procedural due process) was granted in October 2015, with leave to amend.
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Avendano-Ruiz filed a Second Amended Complaint on October 23, 2015, and defendants’ motion
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to dismiss Count Three (for substantive due process) was granted, without leave to amend. In
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April 2016, defendants’ motion for summary judgment with respect to the individual defendant
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was granted but was denied as to the entity defendants. In August 2016, plaintiff filed a motion
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for partial summary judgment, which was denied. On August 9, 2017, Avendano-Ruiz was given
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leave to file a Fourth Amended Complaint adding a takings claim. Defendants now seek to
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dismiss Count Three (the takings claim) of the FAC.
III. Legal Standard
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While “detailed factual allegations are not
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required,” a complaint must have sufficient factual allegations to “state a claim to relief that is
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plausible on its face.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (citing Bell Atlantic v.
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Twombly, 550 U.S. 544, 570 (2007)).
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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court's
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subject matter jurisdiction over the asserted claims. It is the plaintiff's burden to prove jurisdiction
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ORDER GRANTING MOTION TO DISMISS
CASE NO. 15-cv-03371-RS
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at the time the action is commenced. Tosco Corp. v. Communities for Better Environment, 236
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F.3d 495, 499 (9th Cir. 2001); Morongo Band of Mission Indians v. Cal. State Bd. of Equalization,
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858 F.2d 1376, 1380 (9th Cir. 1988). A court considering a 12(b)(1) motion to dismiss is not
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limited to the pleadings, McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), but may
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rely on extrinsic evidence to resolve factual disputes relating to jurisdiction. St. Clair v. City of
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Chico, 880 F.2d 199, 201 (9th Cir. 1989). Once a challenge has been raised to the court's subject
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matter jurisdiction, the party opposing dismissal must “present affidavits or any other evidence
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necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter
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jurisdiction.” St. Clair, 880 F.2d at 201; Savage v. Glendale Union High Sch., 343 F.3d 1036,
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United States District Court
Northern District of California
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1039 n.2 (9th Cir. 2003).
A motion to dismiss a complaint under FRCP Rule 12(b)(6) tests the legal sufficiency of
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the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484
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(9th Cir. 1995). Dismissal under Rule 12(b)(6) may be based on either the “lack of a cognizable
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legal theory” or on “the absence of sufficient facts alleged under a cognizable legal theory.” UMG
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Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013). When
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evaluating such a motion, the Court must “accept all factual allegations in the complaint as true
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and construe the pleadings in the light most favorable to the nonmoving party.” Knievel v. ESPN,
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393 F.3d 1068, 1072 (9th Cir. 2005).
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When dismissing a complaint, leave to amend must be granted unless it is clear that the
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complaint’s deficiencies cannot be cured by amendment. Lucas v. Dep’t of Corr., 66 F.3d 245,
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248 (9th Cir. 1995). When amendment would be futile, dismissal may be ordered with prejudice.
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Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996).
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IV. Discussion
Defendants assert that Avendano-Ruiz’s takings claim is not ripe for adjudication because
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he has not utilized adequate state procedures to seek compensation. Even if the impounding of
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Avendano-Ruiz’s car may be construed as a physical taking, “[t]he Fifth Amendment does not
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proscribe the taking of property; it proscribes taking without just compensation.” Williamson
ORDER GRANTING MOTION TO DISMISS
CASE NO. 15-cv-03371-RS
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County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985).
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Pretaking compensation is not required under the Constitution, only a “reasonable and adequate
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provision for obtaining compensation after the taking.” Id. at 195. Thus, before pursuing a
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takings claim in federal court, a “property owner must have sought compensation for the alleged
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taking through available state procedures.” Daniel v. County of Santa Barbara, 288 F.3d 375, 382
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(9th Cir. 2002). Although Williamson County addressed claims arising out of a regulatory taking,
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the requirement of exhaustion applies equally to claims in connection with a physical taking. Id.
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Avendano-Ruiz does not allege that he has utilized state procedures to obtain
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compensation, nor does he succeed in demonstrating the inadequacy of available procedures.
While a storage hearing or an administrative mandamus would not have yielded compensation for
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United States District Court
Northern District of California
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the time the car was impounded, Avendano-Ruiz cannot show that a lawsuit in state court is
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similarly inadequate. According to Avendano-Ruiz, any lawsuit he filed would have been rejected
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because California decisions regarding § 14602.6 have all found that the statute does not violate
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the Fourth, Fifth, or Fourteenth Amendment guarantees. On the contrary, the right to seek
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recovery for uncompensated takings is well established under California state law. See Cal. Const.
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Art. I § 19. The California decisions cited in Avendano-Ruiz’s opposition discuss the Fifth
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Amendment only in reference to due process rights. Not one case addresses the Takings Clause at
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all. Therefore, Avendano-Ruiz has no basis to assert that state judicial remedies are inadequate.
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Because Avendano-Ruiz has not sought compensation for the alleged taking through state
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procedures, and because he has failed to show that such procedures were unavailable, his takings
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claim under the Fifth Amendment is not ripe for adjudication in federal court. It is therefore
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unnecessary to reach the question of whether Avendano-Ruiz has adequately stated a claim under
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the Takings Clause.
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V. Conclusion
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In pleading an unlawful taking under the Fifth Amendment, Avendano-Ruiz has failed to
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allege the necessary jurisdictional element of exhaustion or inadequacy of state remedies, and is
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unable to cure that defect in his opposition papers. For that reason, Count Three of the FAC is
ORDER GRANTING MOTION TO DISMISS
CASE NO. 15-cv-03371-RS
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dismissed without leave to amend as any effort to amend at this stage on this claim would be
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futile.
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IT IS SO ORDERED.
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Dated: September 25, 2017
______________________________________
RICHARD SEEBORG
United States District Judge
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United States District Court
Northern District of California
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ORDER GRANTING MOTION TO DISMISS
CASE NO. 15-cv-03371-RS
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