Recendiz Garcia et al v. City of King et al
Filing
93
ORDER granting in part and denying in part 26 Motion to Dismiss; granting in part and denying in part 27 Motion to Strike. Signed by Judge Edward J. Davila on 11/9/2017. (ejdlc3S, COURT STAFF) (Filed on 11/9/2017)
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
SAN JOSE DIVISION
7
RUFINA RECENDIZ GARCIA, et al.,
8
Case No. 5:16-cv-06712-EJD
Plaintiffs,
9
v.
10
CITY OF KING, et al.,
11
United States District Court
Northern District of California
Defendants.
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
STRIKE; GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS
Re: Dkt. Nos. 26, 27
12
13
I. INTRODUCTION
14
Plaintiffs Rufina Recendiz Garcia (“Recendiz Garcia”) and Eladio Huitzil (“Huitzil”)
15
initiated this suit against Defendants City of King (the “City”), several of the City’s police
16
officers1, and Leyva’s Towing, Inc. (“Leyva’s Towing”) to challenge the allegedly unlawful
17
towing and storage of their vehicles. Presently before the Court is the City’s motion to strike
18
allegations relating to two towing incidents that occurred in 2013 on the grounds that any claims
19
based upon these incidents are time-barred by the applicable statutes of limitations and the statutes
20
of limitation were not otherwise tolled by an earlier-filed action involving allegations of unlawful
21
towing and storage. The City separately moves to dismiss Plaintiffs’ claims pursuant to
22
Fed.R.Civ.P. 12(b)(6), asserting among other things that the police officers exercised their lawful
23
authority and discretion to have Plaintiffs’ vehicles towed; the City cannot be held liable under a
24
25
26
27
28
1
The named City of King police officers are: Chiefs Ronald Forgue, Bruce Edward Miller, and
Nick Balvidiez, Interim Chiefs Anthony Sollecito and Darius Engles, Acting Chief Alejandrina
Tirado, Sergeants Joey Perez and Brennan Lux, and Officers Joshue Partida, Elias Orozco, Mario
Mottu, Jaime Andrade and Jesus Yanez.
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
1
1
respondeat superior theory as a matter of law; the City provided Plaintiffs with written notice of
2
the storage hearing in English and was not required to provide the notice in the Spanish language;
3
the City and its police officers are immune from suit; the California Vehicle Code Sections upon
4
which Plaintiffs base their negligence per se claim do not impose a mandatory duty on the City or
5
its officers; and the Doe Defendants are improper. The Court finds it appropriate to take the
6
motions under submission for decision pursuant to Civil Local Rule 7-1(b). For the reasons set
7
forth below, the City’s motion to strike is granted in part and denied in part and the motion to
8
dismiss is granted in part and denied in part.
II. BACKGROUND
9
10
United States District Court
Northern District of California
11
A. The Instant Action - filed November 18, 2016
On or about October 5, 2015, City police officers allegedly conducted a traffic stop of
12
Recendiz Garcia’s son, Carlos Daniel Recendiz (“Carlos”), who was driving her truck. First
13
Amended Complaint (“FAC”) at ¶20. The officers allegedly cited Carlos for driving without a
14
license and ordered Leyva’s Towing to tow the truck. Id. The officers allegedly denied Carlos’
15
request to call Recendiz Garcia to have her remove the truck. Id. The same day, Recendiz Garcia
16
allegedly went to the City’s Police Department and asked, in Spanish, to speak with the Police
17
Chief. Id. at ¶21. Plaintiffs allege that the administrator at the front desk told Recendiz Garcia, in
18
Spanish, to speak with an unidentified officer. Id. Recendiz Garcia alleges that she used her
19
limited English to speak with that officer, but the officer refused her request to release the truck
20
and told her the law required that the truck be impounded for thirty days. Id. The officer
21
allegedly failed to inform her of her right to challenge the validity of the impoundment at a storage
22
hearing. Id.
23
A few days later Recendiz Garcia allegedly received a Notice of Stored Vehicle written in
24
English (“Notice”) which provided information about requesting a hearing, but she did not
25
understand the information contained therein. Id. at ¶¶22-23. The same day, Recendiz Garcia
26
allegedly went to Leyva’s Towing and requested, in Spanish, the immediate release of her truck.
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
2
28
1
Id. An employee allegedly told Recendiz Garcia that Leyva’s Towing was under orders from the
2
City to hold the truck for thirty days and that it would cost $2,351 to retrieve the truck at the end
3
of the thirty-day period. Id.
4
In mid-October 2015, Leyva’s Towing allegedly mailed Recendiz Garcia a “Notice of
Pending Lien Sale for Vehicle Valued $4,000 or Less” and an invoice, both written in English. Id.
6
at ¶24. This Notice allegedly instructed Recendiz Garcia to (1) pay her bill and reclaim her
7
vehicle within a month; (2) submit a Declaration of Opposition to dispute the pending sale within
8
a week; or (3) allow the lien sale to proceed on or about November 13, 2015 by doing nothing. Id.
9
Recendiz Garcia alleges that she did not understand these options because they were written in
10
English. Id. Based upon the information Recendiz Garcia received from the Leyva’s Towing
11
United States District Court
Northern District of California
5
employee, Recendiz Garcia allegedly made no further attempts to reclaim her truck because she
12
could not afford to pay $2,351. Id.
13
Recendiz Garcia alleges that later in October of 2015, Leyva’s Towing released her truck
14
to Greenfield Auto Sales in exchange for $1,090. Id. at ¶27. Plaintiffs allege that in January of
15
2016, the Credit Bureau Associates, a collection agency, mailed Recendiz Garcia a debt collection
16
letter in English attempting to collect the money she allegedly owed to Leyva’s Towing. Id. at
17
¶29. In February of 2016, Recendiz Garcia allegedly learned her truck had been released to
18
Greenfield Auto Sales and she repurchased her truck for $1,690. Id. at ¶30.
19
Plaintiffs allege that the City unlawfully towed and stored their vehicles on two prior
20
occasions during 2013. More specifically, Plaintiffs allege that in October of 2013, Defendants
21
towed and stored Plaintiffs’ 1991 Toyota Camry, without prior notice, from a legal parking spot in
22
front of Plaintiffs’ home because the vehicle had expired registration tags. Id. at ¶33. Plaintiffs
23
allege that they were not informed of their right to a storage hearing and that Leyva’s Towing told
24
Plaintiff Huitzil that it had sold the Camry. Id. Earlier, in March of 2013, Defendants allegedly
25
towed and stored Plaintiffs’ 2004 Pontiac Sunfire in connection with a traffic stop of Huitzil’s son,
26
who was cited for driving without a license. Id. Recendiz Garcia alleges that when she arrived at
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
3
28
1
the traffic stop she asked to remove the vehicle herself instead of having it towed, but Defendants
2
allegedly refused. Id.
3
B. Earlier-filed Class Action Suit re Allegedly Unlawful Towing (“Garcia Class Action”)
4
On March 10, 2014, Jesus Garcia (“Garcia”) initiated a putative class action suit against
5
the City, several City police officers, and Brian A. Miller, the owner of Miller’s Towing, asserting
6
federal civil rights claims and related state claims based upon the alleged unlawful towing of his
7
vehicle. Among other things, Garcia alleged that the individual police officers targeted
8
economically disadvantaged and low-income persons of Hispanic descent for traffic stops without
9
a legitimate reason and unlawfully seized, impounded, sold or otherwise appropriated the drivers’
vehicles to the permanent use and benefit of one or more the defendants. Garcia alleged that in
11
United States District Court
Northern District of California
10
more than 89 percent of the cases known to him, the towing was done by Miller’s Towing and
12
“other unknown similar companies and persons accomplished the balance of said wrongful acts.”
13
Complaint at ¶19. Garcia alleged that as part of the scheme, Defendant Brian Miller gave the
14
individual police officers a free vehicle in exchange for every ten to fifteen seizures and
15
impoundments contracted to Miller’s Towing.
16
Garcia alleged that he was subjected to a traffic stop by a City police offer for a minor
17
traffic infraction and was issued a traffic citation. Within minutes of Garcia being stopped, a tow
18
truck allegedly arrived and at the direction of a King police officer, towed Garcia’s vehicle
19
without any explanation or instruction for how to retrieve his vehicle. Garcia alleged that Miller’s
20
Towing told him his vehicle had been impounded at the order of the police and that he could not
21
recover his vehicle until 30 days had elapsed, and then only upon payment of all towing and
22
impound fees. Garcia alleged that his vehicle was sold, disposed of or converted to the use of the
23
individual defendants or other persons. After the sale, the defendant police officers and Brian
24
Miller allegedly paid a portion of the impoundment fees and sales proceeds to King City as
25
ostensible payment for fines and fees, and unlawfully retained the balance of the fees and sales
26
proceeds. Based on the foregoing, Garcia asserted claims for violations of 42 U.S.C. §§1981 and
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
4
28
1
1983 (for targeting and wrongful taking of property and deliberate indifference to the violation of
2
plaintiff’s constitutional rights) and 42 U.S.C. §1985 (conspiracy). Garcia sought to represent a
3
class defined as: “[a]ll persons subject to a traffic stop by an officer(s) of the King City,
4
California, Police Department whose motor vehicles were seized, impounded, and thereafter sold
5
or otherwise disposed of while under the control of the City of King City, during the period
6
beginning three (3) years before this filing of this lawsuit until the present.” Complaint at ¶44.
7
Garcia filed a First Amended Complaint that added named plaintiffs, repeated the federal claims,
8
added state law claims for conversion, trespass to personal property, deceit and fraud, conspiracy,
9
negligence, and redefined the proposed class as follows:
10
United States District Court
Northern District of California
11
12
13
14
15
16
All persons whose motor vehicles were seized and ordered
impounded by an officer(s) of the King City, California, Police
Department during the period beginning three (3) years before th[e]
filing of this lawsuit until the present and:
(a).
Whose motor vehicles were thereafter sold or otherwise
disposed of while under an impound order by the City of King City;
or
(b).
Who were charged and paid impoundment and storage fees
in excess of the lawful amount in order to recover their vehicles.
17
Garcia Class Action First Amended Complaint at ¶117; see also Second Amended and Restated
18
Complaint at ¶117; Third Amended Complaint at ¶143. In October of 2015, the parties settled the
19
case. In February of 2016, the parties filed a joint motion for preliminary approval of the class
20
action settlement. The Settlement Agreement defined the class in pertinent part as follows:
21
22
23
All natural persons whose motor vehicles were stopped and ordered
towed and/or impounded by Miller’s Towing at the direction of one
of the following officers of the King City, California Police
Department: Bruce Miller . . . between March 9, 2011 and February
25, 2014. . . .
24
See Garcia Class Action Docket Entry No. 123. In June of 2016, the Court granted preliminary
25
approval of the class action settlement. See Docket Entry No. 129. In January of 2017, the Court
26
granted final approval of the class action settlement. See Docket Entry No. 149.
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
5
28
III. STANDARDS
1
2
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient
3
specificity to “give the defendant fair notice of what the...claim is and the grounds upon which it
4
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). The
5
factual allegations in the complaint “must be enough to raise a right to relief above the speculative
6
level” such that the claim “is plausible on its face.” Id. at 556-57.
7
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of claims
8
alleged in the complaint. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
9
1995). When deciding whether to grant a motion to dismiss, the court must generally accept as
true all “well-pleaded factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). The court
11
United States District Court
Northern District of California
10
must also construe the alleged facts in the light most favorable to the plaintiff. See Retail Prop.
12
Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014)
13
(providing the court must “draw all reasonable inferences in favor of the nonmoving party” for
14
a Rule 12(b)(6) motion). Dismissal “is proper only where there is no cognizable legal theory or an
15
absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250
16
F.3d 729, 732 (9th Cir. 2001).
17
Pursuant to Fed.R.Civ.P. 12(f), a court may strike from the complaint any “redundant,
18
immaterial, impertinent, or scandalous matter.” The function of a Rule 12(f) motion to strike is
19
“to avoid the expenditure of time and money that must arise from litigating spurious issues by
20
dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
21
973 (9th Cir. 2010). A motion to strike will only be granted if “it is clear that the matter to be
22
stricken could have no possible bearing on the subject matter of the litigation.” Illinois Nat’l Ins.
23
Co. v. Nordic PCL Const., Inc., 870 F.Supp.2d 1015, 1040 (D. Hi 2012); see also Oracle v.
24
Micron Tech., Inc., 817 F.Supp.2d 1128, 1132 (N.D. Cal. 2011) (“A court must deny the motion
25
to strike if there is any doubt whether the allegations in the pleadings might be relevant in the
26
action.”).
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
6
28
IV. DISCUSSION
1
2
3
A. Statute of Limitations
The City moves to strike portions of the First Amended Complaint that contain allegations
4
regarding the March and October 2013 towing incidents on the grounds that any claims based on
5
these towing incidents are time barred, having been filed on November 18, 2016, after the
6
expiration of California’s 2-year statute of limitations for personal injury claims provided by
7
Cal.Code.Civ.Proc. §335.1 and after the three year statute of limitations for discrimination claims
8
provided by Cal.Gov’t Code §11135. Plaintiffs raise three arguments in opposition. First,
9
Plaintiffs contend that the earlier-filed Garcia Class Action tolled the statute of limitations until
January 25, 2017, when the Garcia Class Action settlement received final approval. The City
11
United States District Court
Northern District of California
10
argues that the Plaintiffs would not qualify as class members in the Garcia Class Action because
12
that suit involved different legal claims than the instant action.
13
In American Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974), the Supreme Court held
14
that the commencement of a class action tolls the applicable statute of limitations “as to all
15
asserted members of the class who would have been parties had the suit been permitted to continue
16
as a class action.” In Crown, Cork & Seal, Co. v. Parker, 462 U.S. 345 (1983), the Supreme Court
17
extended the American Pipe holding to allow tolling for class members filing separate actions.
18
“The intent of the American Pipe rule is to preserve the individual right to sue of the members of a
19
proposed class until the issue of class certification has been decided.” In re Agent Orange Product
20
Liability Litigation, 818 F.2d 210, 214 (2nd Cir. 1987) (citing Crown, Cork & Seal Co., Inc. v.
21
Parker, 462 U.S. 345 (1983)). “The theoretical basis” for the American Pipe rule “is the notion
22
that class members are treated as parties to the class action ‘until and unless they received notice
23
thereof and chose not to continue.’” Romo v. Wells Fargo Bank, N.A., No. 15-3708 EMC, 2016
24
WL 324286, at *5 (N.D. Cal. Jan. 27, 2016) (citing American Pipe, 414 U.S. at 551). “Once they
25
cease to be members of the class—for instance, when they opt out or when the certification
26
decision excludes them—the limitation period begins to run again on their claims.” In re
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
7
28
1
WorldCom Sec. Litig., 496 F.3d 245, 255 (2d Cir. 2007); see also Choquette v. City of New York,
2
839 F.Supp.2d 692, 699 (S.D. N.Y. 2012) (“American Pipe tolling ends when a plaintiff opts out
3
of the class or a class certification decision of the court definitively excludes that plaintiff.”); In re
4
Initial Public Offering Securities Litigation, 617 F.Supp.2d 195, 200 (S.D. N.Y. 2007) (American
5
Pipe tolling continues until a class certification decision of the court definitively excludes the
6
claims of the plaintiff in question).
7
Relying on the definition of the class set forth in the order granting preliminary approval of
the Garcia Class Action settlement, the City argues that Plaintiffs were not and could not have
9
been members of the class because Plaintiffs’ vehicles were towed by Leyva’s Towing, not
10
Miller’s Towing. In doing so, the City inexplicably overlooks the broader definition of the
11
United States District Court
Northern District of California
8
proposed class set forth in the Garcia Class Action complaint and all subsequent versions of the
12
complaint, which were not limited to Miller’s Towing, but instead defined the class in pertinent
13
part, as “[a]ll persons whose motor vehicles were seized and ordered impounded by an officer(s)
14
of the King City, California, Police Department. . . .” Garcia Class Action First Amended
15
Complaint at ¶117; see also Second Amended and Restated Complaint at ¶117; Third Amended
16
Complaint at ¶143. Prior to the Miller’s Towing limitation being instituted in the order granting
17
preliminary approval of the class action settlement, the Garcia Class Action from its inception
18
consistently included a definition of the proposed class that was broad enough to include the
19
alleged towings by Leyva’s Towing.
20
Nevertheless, the City contends that tolling is inapplicable because the Garcia Class Action
21
involved different legal claims than those being asserted by Plaintiffs in the instant action. There
22
is, however, “no persuasive authority for a rule which would require that the individual suit must
23
be identical in every respect to the class suit for the statute to be tolled” and concluded that tolling
24
applied because the plaintiff’s claim “involved the same allegations that were made in the class
25
suit of a City policy to discriminate against women in the police department.” Tosti v. City of Los
26
Angeles, 754 F.2d 1485, 1489 (9th Cir. 1985). Although not identical, the Garcia Class Action
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
8
28
1
and Plaintiffs’ suit are based upon the same fundamental allegations of unlawful towing,
2
impoundment and sale of vehicles. Therefore, the Garcia Class Action tolled the statutes of
3
limitations to the extent Plaintiffs’ claims share common allegations of unlawful towing,
4
impoundment and sale of vehicles in 2013. See Tosti, supra.
5
There are, however, allegations and claims in Plaintiffs’ complaint in the instant action that
6
are materially different from and beyond the scope of the Garcia Class Action. Specifically,
7
Plaintiffs allege that in March of 2013, Defendants refused Recendez Garcia’s request to remove
8
the 2004 Pontiac Sunfire after her son was subject to a traffic stop and cited for driving without a
9
license. FAC at ¶¶33, 46. The Garcia Class Action did not involve similar allegations regarding
Defendants’ alleged refusal to allow a plaintiff to remove a vehicle. To the extent Plaintiffs’
11
United States District Court
Northern District of California
10
claims are predicated on the alleged refusal to remove the Pontiac Sunfire in 2013, the statutes of
12
limitations for those claims are not tolled by the Garcia Class Action and are time barred.
13
Further, unlike the Garcia Class Action, Plaintiffs allege in the instant action that
14
Defendants failed to notify Plaintiffs of their right to a storage hearing to challenge charges
15
associated with the October 2013 towing of the Toyota Camry. FAC at ¶52. Plaintiffs also allege
16
that Defendants failed to provide notices in the Spanish language. Id. at ¶¶58, 59, 61. To the
17
extent Plaintiffs’ claims are predicated on allegations that Defendants failed to provide notices in
18
connection with the 2013 towing incidents, the statutes of limitations for those claims are not
19
tolled by the Garcia Class Action and are time barred.
20
Second, Plaintiffs contend that Defendants are equitably estopped from asserting a statute
21
of limitations defense because Defendants had actual or constructive knowledge that the towing
22
incidents were unlawful. Under California law, which applies to the extent it is not inconsistent
23
with federal law, the plaintiff carries the burden of establishing the following elements of
24
equitable estoppel:
25
26
27
28
(1) the party to be estopped must be apprised of the facts; (2) that
party must intend that his or her conduct be acted on, or must so act
that the party asserting the estoppel had a right to believe it was so
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
9
intended; (3) the party asserting estoppel must be ignorant of the
true state of facts; and (4) the party asserting estoppel must
reasonably rely on the conduct to his or her injury.
1
2
3
Estate of Amaro v. City of Oakland, No. 09-1019 WHA, 2010 WL 669240 (N.D. Cal. Feb. 23,
4
2010) (quoting Honig v. San Francisco Planning Dept., 127 Cal.App.4th 520, 529 (2005). A party
5
asserting estoppel against the government must show “affirmative misconduct going beyond mere
6
negligence” in addition to the four traditional elements of estoppel. Morgan v. Heckler, 779 F.2d
7
544, 545 (9th Cir. 1985).
Plaintiffs have not alleged sufficient facts to satisfy the elements of estoppel with respect
8
9
to the claims that were not tolled by the Garcia Class Action. As discussed previously, Plaintiffs’
claims were not tolled by the Garcia Class Action to the extent they are based on allegations (a)
11
United States District Court
Northern District of California
10
that Defendants denied a request to remove the Pontiac Sunfire, (b) that Defendants failed to
12
notify Plaintiffs of their right to a storage hearing to challenge charges associated with the October
13
2013 towing of the Toyota Camry, and (c) that Defendants failed to provide notices in the Spanish
14
language. With respect to these allegations, Plaintiffs have not alleged facts showing any of the
15
four traditional elements of estoppel, much less facts showing that the City engaged in affirmative
16
misconduct beyond negligence. Therefore, estoppel is inapplicable to Plaintiffs’ time-barred
17
claims.
18
Third, Plaintiffs contend that the statute of limitations was tolled by the delayed discovery
19
rule. The discovery rule postpones accrual of a claim until “the plaintiff discovers, or has reason
20
to discover the cause of action.” Clemens v. Daimler Chrysler Corp., 534 F.3d 1017 (9th Cir.
21
2008) (quoting Norgart v. Upjohn Co., 21 Cal.4th 383, 397 (1999)). “A plaintiff whose complaint
22
shows on its face that his claim would be barred without the benefit of the discovery rule must
23
specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have
24
made earlier discovery despite reasonable diligence.” Plumlee v. Pfizer, Inc., No. 13-414 LHK,
25
2014 WL 695024, at *8 (N.D. Cal. Feb. 21, 2014) (quoting E-Fab, Inc. v. Accountants, Inc.
26
Services, 153 Cal.App.4th 1308, 1319 (2007)).
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
10
28
Here, Plaintiffs have not set forth a sufficient factual predicate for delayed discovery.
1
2
Rather, the alleged facts suggest that Plaintiffs knew of their injuries when the events giving rise
3
to the injuries occurred in 2013. Specifically, Recendez Garcia knew of her alleged injury the
4
moment her request to remove the 2004 Pontiac Sunfire was denied. Similarly, Plaintiffs knew of
5
their alleged injury upon receipt of notices written in the English language. As for the allegation
6
that Defendants failed to notify Plaintiffs of their right to a storage hearing with respect to the
7
October 2013 towing of the Toyota Camry, Plaintiffs do not set forth any facts explaining when
8
they learned of the towing or the alleged failure of Defendants to give notice. Plaintiffs also do
9
not set forth facts explaining their inability to have discovered the lack of notice earlier despite
10
reasonable diligence.
Accordingly, Defendants’ motion to strike is granted in part as to paragraph 33 (lines 17-
United States District Court
Northern District of California
11
12
18) with leave to amend, and 46 (lines 18-20), 52 (lines 14-15, 17), and 59 without leave to
13
amend. Defendants’ motion to strike is denied in all other respects.
14
B. Plaintiffs’ First Cause of Action for Unreasonable Seizure
In the first cause of action, Plaintiffs allege that the towing and storage of their vehicles
15
16
constituted an unreasonable seizure in violation of the Fourth Amendment. Defendants contend
17
that the 2015 towing2 was conducted in accordance with California Vehicle Code (“CVC”)
18
§22651, and therefore Plaintiffs’ claim should be dismissed as a matter of law.
As a preliminary matter, the parties dispute whether CVC §22651 or §1402.6 applies.
19
20
Defendants’ argument is without merit regardless of the statutory basis for the initial seizure
21
because “[t]he mere fact that a state has authorized a search or seizure does not render it
22
reasonable under the Fourth Amendment.” Mateos Sandoval v. County of Sonoma, 72 F.Supp.3d
23
997 (N.D. Cal. 2014) (30-day mandatory impoundment of vehicle pursuant to CVC §1402.6
24
25
26
27
28
2
Defendants direct their argument to the 2015 towing incident because they contend the 2013
towing incidents are time barred. See Defendants’ Motion to Dismiss at p.10. Plaintiffs similarly
limit their opposition brief to the 2015 towing and impoundment of their truck. See Plaintiffs’
Opposition at pp. 10-13.
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
11
1
2
constituted a seizure that required compliance with the Fourth Amendment).
Under the Fourth Amendment, a warrantless seizure of vehicle, such as an impoundment,
is per se unreasonable under the Fourth Amendment, subject only to a few exceptions. Miranda v.
4
City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005). “In their ‘community caretaking’ function,
5
police officers may impound vehicles that ‘jeopardize public safety and the efficient movement of
6
vehicular traffic.’” Miranda, 429 F.3d at 864; see also Avendano-Ruiz v. City of Sebastopol, No.
7
15-3371 RS, 2016 WL 3017534, *6 (N.D. Cal. May 5, 2016). An impoundment of a vehicle that
8
is conducted under the community caretaking function, however, is “justified under the Fourth
9
Amendment only to the extent that the government’s justification holds force.” Brewster v. Beck,
10
859 F.3d 1194, 1197 (9th Cir. 2017). Thus, if after the initial impoundment the vehicle no longer
11
United States District Court
Northern District of California
3
jeopardizes public safety and the efficient movement of vehicular traffic, “the government must
12
cease the seizure or secure a new justification.” Id.
13
Plaintiffs’ allegations are sufficient at the pleading stage to state a claim for unreasonable
14
seizure. Plaintiffs allege that Defendants’ towing and storage of their vehicles were not authorized
15
by a warrant. FAC at ¶36. Plaintiffs further allege that their vehicles were not impeding traffic,
16
were parked in legal parking spots, did not pose a hazard to other drivers, and were not at risk for
17
vandalism. Id. at ¶38. Plaintiffs also allege that the thirty-day hold on the truck was unreasonable.
18
Id. at ¶42. Ultimately, the reasonableness of the prolonged warrantless seizure of Plaintiffs’ truck
19
will depend upon a balancing of the “nature and quality of the intrusion on [Plaintiffs’] Fourth
20
Amendment interests against the importance of the governmental interests alleged to justify the
21
intrusion.” Sandoval, 72 F.Supp.3d at 1009 (quoting U.S. v. Sullivan, 753 F.3d 845, 855 (9th Cir.
22
2014)). Such an inquiry would be premature at the pleading stage without the benefit of a fully
23
developed record. Defendants’ motion to dismiss the first cause of action is denied.
24
B. Plaintiffs’ Second Cause of Action for Violation of Procedural Due Process
25
In the second cause of action, Plaintiffs allege that “Defendants’ procedures, including
26
failing to notify Plaintiffs of their right to a storage hearing to challenge the charges related to their
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
12
28
1
tow of their 1991 Toyota Camry and charging them for storage fees that they never incurred,
2
created a high risk that Plaintiffs[] would be erroneously overcharged.” FAC at ¶52.
3
For reasons discussed above, Plaintiffs’ allegation regarding failure to provide notice of a
4
storage hearing for the Toyota Camry is beyond the scope of the Garcia Class Action, and
5
therefore any claim based upon that allegation is time barred. Defendants’ motion to dismiss the
6
second cause of action is granted.
7
C. Plaintiffs’ Third Cause of Action for Violation of Cal. Govt. Code §11135 et seq.
Plaintiffs allege that Defendants violated their duty to make Spanish-language versions of
9
Storage Notices and Notices of Pending Lien Sales available to Plaintiffs. FAC at ¶58. Plaintiffs
10
also allege that the City and Leyva’s Towing failed to provide Recendez Garcia with a translator
11
United States District Court
Northern District of California
8
or a Spanish-speaking employee.
12
Citing Guerrero v. Carleson, 9 Cal.3d 808 (1973), the City contends that neither due
13
process or nor equal protection principles require the notices at issue to be provided in the Spanish
14
language. Plaintiffs rely on the general anti-discrimination protections provided by California
15
Government Code §11135 and various California Regulations to argue the City’s failure to
16
provide the notices at issue in the Spanish language constitutes discrimination.
17
Neither party has cited nor is this Court aware of any statute or controlling caselaw
18
governing the specific circumstances in this case. The most analogous cases cited by Defendants
19
suggest, however, that the City’s alleged failure to provide notices in the Spanish language does
20
not constitute discrimination. See Guerrero, supra (denying motion for injunction prohibiting
21
directors of state and county from reducing or terminating welfare payments to recipients literate
22
in Spanish but not in English unless notice was given in Spanish language); Gonzales v. Village
23
Avante Redevelopment, Ltd., No. 84-20525 WAI, 1985 WL 1166726 (N.D. Cal. June 24, 1985)
24
(dismissing discrimination on the basis of national origin claim grounded in the Department of
25
Housing and Urban Development’s alleged failure to distribute rental agreements and other
26
notices in the Spanish language); Carmona v. Sheffield, 475 F.2d 738 (9th Cir. 1973) (dismissing
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
13
28
1
plaintiff’s equal protection claim targeting California’s administration of unemployment insurance
2
benefits program in the English language). In the absence of a California statute or caselaw
3
authorizing Plaintiffs’ cause of action, this Court declines to recognize Plaintiffs’ cause of action
4
for the alleged failure to provide Spanish-language versions of Storage Notices and Notices of
5
Pending Lien Sales. Defendants’ motion to dismiss the third cause of action is granted.3
D. Plaintiffs’ Sixth through Ninth Causes of Action
6
Plaintiffs assert four tort claims: negligence per se, trespass to chattel, negligence and
7
8
conversion. The City moves to dismiss the tort claims, asserting that they are immune because the
9
officers are immune pursuant to California Government Code §§820.2, 820.4, 821.6. Section
820.2 provides that: “[e]xcept as otherwise provided by statute, a public employee is not liable for
11
United States District Court
Northern District of California
10
an injury resulting from his act or omission where the act or omission was the result of the
12
exercise of discretion vested in him, whether or not such discretion be abused.” Cal. Gov.t Code
13
§820.2. Section 820.4 states, “[a] public employee is not liable for his act or omission, exercising
14
due care, in the execution or enforcement of any law.” Id. at §820.4. Section 821.6 states, “[a]
15
public employee is not liable for injury caused by his instituting or prosecuting any judicial or
16
administrative proceeding within the scope of his employment, even if he acts maliciously and
17
without probable cause.” Id. at §821.6.
18
The negligence per se claim is based upon several theories. Plaintiffs allege that
19
Defendants had a mandatory duty imposed by CVC §§14607.6(p) and 22850.5 to refrain from
20
charging Plaintiffs for storage services that they did not actually incur. FAC at ¶77. Section
21
14607.6(p) provides that: “[c]harges for towing and storage for any vehicle impounded pursuant
22
to this section shall not exceed the normal towing and storage rates for other vehicle towing and
23
storage conducted by the impounding agency in the normal course of business.” Accepting as true
24
25
26
27
28
3
The eighth cause of action for negligence is based in part on Defendants’ alleged failure to
provide Spanish-language notices and services. FAC at 85, line 24. That allegation in the eighth
cause of action is stricken for the reasons discussed above.
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
14
1
Plaintiffs’ allegation that they were charged for services that were not incurred, Plaintiffs have
2
stated a violation of a mandatory duty not to charge fees that exceed the normal storage rates for
3
Leyva’s Towing.
Plaintiffs also allege that Defendant had a mandatory duty imposed by CVC §14602.6 to
4
5
refrain from towing and causing a thirty-day hold of their vehicles unless a police officer arrested
6
the driver or the vehicle was involved in an accident. Id. at ¶78. Plaintiffs’ interpretation of
7
Section 14602.6, however, is not supported by caselaw. See California Highway Patrol v.
8
Superior Court, 162 Cal.App.4th 1144, 1154 (2008) (section 14602.6 confers discretionary
9
authority on law enforcement to determine whether to impound a vehicle). To the extent
Plaintiffs’ negligence per se claim is based upon Section 14602.6, the cause of action is dismissed.
11
United States District Court
Northern District of California
10
See FAC at ¶78, lines, 8-9.
Plaintiffs also allege that Defendants violated a mandatory duty imposed by CVC §22650
12
13
by towing and storing Plaintiffs’ truck. Section 22650, however, applies to the removal of
14
unattended vehicles. Plaintiffs’ truck was not unattended. To the extent Plaintiffs’ negligence per
15
se claim is based upon Section 22650, the cause of action is dismissed. See FAC at ¶78, lines 12-
16
14.
17
Plaintiffs also allege that Defendants had a mandatory duty imposed by CVC §22651(h)(1)
18
to refrain from towing a vehicle under its authority unless a police officer arrests the driver. Id. at
19
¶79. Section 22651(h)(1), however, does not impose a mandatory duty. Instead, the statute
20
provides that a peace officer “may” remove a vehicle when an officer arrests a person. To the
21
extent Plaintiffs’ negligence per se claim is based upon Section 22651(h)(1), the cause of action is
22
dismissed. See FAC at ¶79.
23
The seventh cause of action for trespass to chattel is based upon allegations that
24
Defendants caused Plaintiffs’ truck to be stored for a prolonged period of time and charged
25
exorbitant tow and storage fees. Id. at ¶¶81-82. The ninth cause of action for conversion is based
26
upon the allegation that Defendants intentionally and substantially interfered with Plaintiffs’
27
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
15
28
1
property by refusing to return all three of Plaintiffs’ vehicles upon request, wrongfully taking
2
possession of Plaintiffs’ vehicles and personal property within them, and wrongfully disposing of
3
Plaintiffs’ vehicles and personal property. Id. at ¶88. Plaintiffs contend that Defendants are not
4
entitled to immunity for these actions because they are ministerial and operational. See Liberal v.
5
Estrada, 632 F.3d 1064, 1084-85 (9th Cir. 2011) (immunity reserved for “basic policy decisions”
6
which have been expressly committed to branches of government and as to which judicial
7
interference would be “unseemly”). The Court agrees that the alleged conduct is properly
8
characterized as day-to-day operational and ministerial actions as opposed to discretionary policy-
9
based decisions. Accordingly, Defendants’ motion to dismiss the seventh and ninth causes of
10
United States District Court
Northern District of California
11
action is denied.
In the eighth cause of action for negligence, Plaintiffs allege that Defendants violated their
12
mandatory duties to comply with the law when towing and storing Plaintiffs’ vehicles and
13
charging related fees and disposing of vehicles. Id. at ¶85. The eighth cause of action is
14
dismissed because it appears to be entirely duplicative of the negligence per se claim.
15
E. Doe Defendants
16
Plaintiffs name as John Doe Defendants 1-10 employees of the City that allegedly
17
participated in towing and storing Plaintiffs’ vehicles and charging Plaintiffs fees. Plaintiffs name
18
as John Doe Defendants 11-20 employees of the City that allegedly participated in providing the
19
City’s storage hearing services including distributing the notice to Plaintiffs about their rights to
20
challenge the City’s tow and storage of their vehicles and related fees. Defendants move to
21
dismiss all Doe Defendants on the grounds that pleading fictitious Doe defendants is improper in
22
federal court.
23
“As a general rule, the use of ‘John Doe’ to identify a defendant is not favored.” Gillespie
24
v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Accordingly, Defendants’ motion to dismiss the
25
Doe Defendants is granted with leave to amend.
26
27
28
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
16
V. CONCLUSION
1
2
For the reasons set forth above, Defendants’ motion to strike is GRANTED IN PART
3
AND DENIED IN PART. Defendants’ motion to strike is granted as to paragraph 33 (lines 17-
4
18) with leave to amend, and paragraphs 46 (lines 18-20), 52 (lines 14-15, 17), 59 and 85 (line 24)
5
without leave to amend. Defendants’ motion to strike is denied in all other respects.
Defendants’ motion to dismiss is GRANTED IN PART AND DENIED IN PART.
7
Defendants’ motion is granted as to the second cause of action, the third cause of action, the sixth
8
cause of action to the extent it is based upon CVC §§14602.6, 22650, and 22651(h)(1), and the
9
eighth cause of action. The dismissal of these claims is with leave to amend, except for the third
10
and sixth causes of action. All Doe defendants are dismissed with leave to amend. Defendants’
11
United States District Court
Northern District of California
6
motion to dismiss is DENIED in all other respects.
12
IT IS SO ORDERED.
13
14
15
16
Dated: November 9, 2017
______________________________________
EDWARD J. DAVILA
United States District Judge
17
18
19
20
21
22
23
24
25
26
27
28
Case No.: 5:16-cv-06712-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?