Opinion
2:16-cv-01742 LEK
04-21-2021
GUILLERMO BONILLA, SANDRA AMAYA BONILLA, Plaintiffs, v. CALIFORNIA HIGHWAY PATROL AN AGENEY OF THE STATE OF CALIFORNIA; OFFER MCKENZIE AND SGT. PETERSON and DOES 1 TO 50, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants California Highway Patrol ("Highway Patrol") and Muriel McKenzie's ("McKenzie" and collectively "Defendants") Motion for Summary Judgment ("Motion"), filed on January 16, 2019. [Dkt. no. 72.] Plaintiffs Guillermo Bonilla and Sandra Amaya Bonilla ("Plaintiffs") filed their memorandum in opposition on February 26, 2019, and Defendants filed their reply on March 12, 2019. [Dkt. nos. 83, 90.] The Court finds this matter suitable for disposition without a hearing pursuant to L.R. 230(g) of the Local Rules of the United States District Court for the Eastern District of California ("Local Rules"). Defendants' Motion is hereby granted for the reasons set forth below.
BACKGROUND
I. Underlying Facts
The instant case arises out of the Highway Patrol's seizure of Plaintiffs' community property, a 2000 utility flatbed, with a vehicle identification number ("VIN") ending in 4008 ("the Flatbed"), and a 2005 Freightliner Truck, with a VIN ending in 2164 ("the Truck"). [Decl. of Sandra Amaya Bonilla in Opp. to Defs.' Motion for Summary Judgment ("S. Bonilla Decl."), filed 2/26/19 (dkt. no. 85), at ¶ 3.] Prior to the events in question, the Truck had already been sold to Marco Tulio Osorio Ochoa ("Osorio") for $25,000, [id. at ¶ 4,] and the Flatbed was going to be leased to a third party, [id. at ¶ 11].
A. The Impoundment
On August 27, 2014, Highway Patrol Officer Lance Ward ("Ward") was working at the truck scales in Antelope, California ("Antelope Scales") as a commercial enforcement officer, when he observed the Truck towing the Flatbed in the loaded lane. [Motion, Separate Statement of Undisputed Material Facts in Supp. of Motion for Summary Judgment ("Defs.' SOF"), filed 1/16/19 (dkt. no. 72-1), at ¶¶ 6-7; Pltfs.' Response to Defs.' Separate Statement of Undisputed Facts in Opp. to Defs.' Motion for Summary Judgment ("Pltfs.' Responsive SOF"), filed 2/26/19 (dkt. no. 87), at ¶¶ 6-7 (admitting Defs.' ¶¶ 6-7).] Ward has been a commercial enforcement officer since 2008 and, in that position, he inspects commercial vehicles for compliance with the California Vehicle Code and other safety standards. He must therefore be familiar with the California Vehicle Code's provisions regarding motor carriers of property. [Defs.' SOF, Exh. 2 (Decl. of Lance Ward in Supp. of Motion for Summary Judgment ("Ward Decl.")) at ¶ 2.]
Any motor carrier of property is subject to inspection by the Highway Patrol to ensure that the carrier is operating safely on the California highways. [Defs.' SOF at ¶¶ 1-2; Pltfs.' Responsive SOF at ¶¶ 1-2.] The parties also agree that motor carriers must have proof of a permit issued by the California Department of Motor Vehicles ("DMV"). A motor carrier permit is required for a vehicle that either has three axels, weighs ten-thousand pounds or more, or has a total length of more than forty feet. [Defs.' SOF at ¶¶ 3-4; Pltfs.' Responsive SOF at ¶¶ 3-4.]
Defendants contend that the Truck and Flatbed required a motor carrier permit, [Defs.' SOF at ¶ 5,] but Plaintiffs argue a motor carrier permit was not required because the Truck was not a "commercial vehicle" as defined under Cal. Veh. Code § 260, [Pltfs.' Responsive SOF at ¶ 5]. Plaintiffs assert the Truck was not a hired vehicle, was not performing any commercial transport, and it had single-trip permit for August 27, 2014 ("Trip Permit"). [S. Bonilla Decl. at ¶ 7.]
Ward directed the driver of the Truck to pull over because: the Truck was not displaying motor carrier identification numbers, in violation of Cal. Veh. Code § 34507.5; the Truck had a cracked windshield, in violation of Cal. Veh. Code § 26710; the Truck was not displaying a company name, in violation of Cal. Veh. Code § 27900; and there was loose gravel, oil, and gas on top of the Flatbed, in violation of Cal. Veh. Code § 24002(b). [Ward Decl. at ¶ 4.] When asked, the driver of the Truck, James Carradine ("Carradine"), provided an expired driver's license, in violation of Cal. Veh. Code § 12951(a), and had no proof of insurance, in violation of Cal. Veh. Code § 16028(a). [Ward Decl. at ¶ 4.] Carradine disputes Ward's statements about the gravel, oi and gas, driver's license, and proof of insurance. [Carradine Decl. at ¶¶ 7-9.]
Carradine was previously employed by Plaintiffs as a driver. [Pltfs.' SOF, Decl. of James Carradine in Opp. to Defs.' Motion for Summary Judgment ("Carradine Decl.") at ¶ 2.]
Ward determined the Truck was registered to Rebel Steel Trucking ("Rebel Steel"), and the registration had been expired for more than six months. He also determined Rebel Steel did not have a motor carrier permit for the Truck. [Ward Decl. at ¶ 5.] Carradine told Ward that he was the owner of JC Trucking and that its carrier permit number was 213661, but Ward determined that the DMV had not issued permit number 213661 to JC Trucking, nor had the DMV issued any motor carrier permit to JC Trucking. [Id.] Ward also determined that the license plate displayed on the Truck was assigned to another vehicle, and the license plate actually assigned to the Truck was not being displayed. [Id. at ¶ 6.] Plaintiffs deny there was a false license plate on the Truck, and they assert the Trip Permit allowed the Truck to be driven from one specified location to another, without displaying a special license plate. [S. Bonilla Decl. at ¶ 7.] Sandra Bonilla states that, on August 27, 2014, the Truck was displaying the Trip Permit, a "Not for Hire" sign, and "[t]he only license plate that may have been on the Truck was a Federal license plate for the Truck issued by the United States Government." [Id.] Plaintiffs assert these were "easily visible," [id.,] and the Highway Patrol "knew or should have known that the Truck was not for hire and was being moved only for purpose of a sale that had already occurred," [id. at ¶ 15]. In addition, Guillermo Bonilla called Carradine and spoke to Ward, who used Carradine's cellular phone. Guillermo Bonilla told Ward the Truck had not been hired and was not being used commercially. He also told Ward about the Trip Permit. [Decl. of Guillermo Bonilla in Opp. to Defs.' Motion for Summary Judgment ("G. Bonilla Decl."), filed 2/26/19 (dkt. no. 84), at ¶¶ 3-4.]
Carradine has given statements that are similar to those in paragraphs 6 and 7 of the S. Bonilla Declaration. See Carradine Decl. at ¶ 5.
According to Ward, the Truck's assigned license plate had a registration which had been expired since December 31, 2012. Thus, the Truck was in violation of Cal. Vehicle Code § 4000(a). [Ward Decl. at ¶ 6.] Ward and Highway Patrol Vehicle Inspection Specialist Schmitz inspected the Truck and Flatbed and noted other violations of the California Vehicle Code, including: a "damaged or discolor[ed] windshield"; the lack of a fire extinguisher in the Truck; and an illegible emergency air dash knob. [Id. at ¶ 7.] Carradine states he did not notice any damage or discoloration in the Truck's windshield. Further, the Truck did have a fire extinguisher, other safety equipment, and a functional air dash knob at the time of the impoundment. [Carradine Decl. at ¶¶ 11-13.]
Based on his observations, Ward deemed the Truck and Flatbed to be "out of service and not safe for operation on the roadway," and he "used [his] discretionary authority" to impound the Truck and Flatbed, pursuant to Cal. Veh. Code §§ 22651(o) and 34660(d). [Ward Decl. at ¶ 8.] Plaintiffs dispute many of Ward's observations, and Plaintiffs assert that, if there were any violations of the Motor Vehicle Code, the violations would have been "minor or technical violations" that could have been addressed with a citation, instead of impounding the Truck and Flatbed. S. Bonilla Decl. at ¶ 7; see also Carradine Decl. at ¶ 5.
Rincon Towing took possession of the Truck and Flatbed, and Carradine received a copy of the paperwork. [Ward Decl. at ¶ 9.] According to Guillermo Bonilla, Rincon Towing drove the Truck and Flatbed from the Antelope Scales to its tow yard because Rincon Towing did not have a vehicle available that could tow the Truck and Flatbed. [G. Bonilla Decl. at ¶ 3.]
Carradine states he saw someone from Rincon Towing drive the Truck and Flatbed from the Antelope Scales. [Carradine Decl. at ¶ 6.]
The parties agree that, at the time of the impoundment, Sandra Bonilla owned the Truck, and Guillermo Bonilla, who is also the sole owner of W Financial Repo/Collections, owned the Flatbed. [Defs.' SOF at ¶¶ 33-34; Pltfs.' Responsive SOF at ¶¶ 33-34.] According to Ward, he never communicated with Plaintiffs regarding either the August 27, 2014 inspection or the impoundment. [Ward Decl. at ¶ 10.] Neither Plaintiffs nor anyone else ever provided Ward with evidence that the Truck and Flatbed were covered by a motor vehicle carrier permit which was valid on August 27, 2014, nor was he provided with evidence that either the Truck or the Flatbed had a vehicle registration that was valid on August 27, 2014. [Id. at ¶¶ 11-12.]
Defendants' SOF and Plaintiffs' Responsive SOF refer to the entity as "W Financial Repo/Collections," [Defs.' SOF at ¶ 34; Pltfs.' Responsive SOF at ¶ 34,] but during Guillermo Bonilla's deposition, the entity was referred to as "W Financial/Repo Collectors." [Defs.' SOF, Exh. 4 (trans. excerpt of G. Bonilla's 11/1/18 depo. ("G. Bonilla Depo.")) at 45.]
According to Plaintiffs, the Truck and Flatbed received a Highway Patrol citation two or three days prior to August 27, 2014. Carradine took the Truck and Flatbed to the Antelope Scales on August 27, 2014 to have the Highway Patrol resolve the citation so that the Truck could be delivered to Osorio. All other citations on the Truck had been resolved prior to August 27, 2014. See S. Bonilla Decl. at ¶ 5; Carradine Decl. at ¶¶ 3, 10-11. Carradine does not remember the name of the Highway Patrol officer who issued the citation that Carradine was trying to resolve on August 27, 2014 ("Officer X"). According to Carradine, Officer X did not find any damage or discoloration in the Truck's windshield when he issued the citation. [Carradine Decl. at ¶¶ 10-11.] Officer X also told Carradine not to display a company name or identifying numbers on the Truck because that would make it appear that the Truck was doing business or being used for commercial purposes. Officer X gave that advice because Officer X knew the truck had been sold and was merely being transported to the buyer. [Id. at ¶ 14.]
The citation was issued because the Truck's air lines had "a kink in them, and the kink needed to be fixed because that was a safety issue even for a one-day Trip Permit for the truck." [Carradine Decl. at ¶ 16.] That was the only violation that Carradine was attempting to resolve when he went to the Antelope Scales on August 27, 20014. [Id.]
Plaintiffs assert the Highway Patrol "and many of its officers at the Antelope Scales had often targeted and harassed trucks and vehicles belonging to [Plaintiffs] due to the ill will that the [Highway Patrol] officers had toward [Plaintiffs] and [their] employees." S. Bonilla Decl. at ¶ 6; G. Bonilla Decl. at ¶ 7; see also Carradine Decl. at ¶ 4 ("From my own experience, the [Highway Patrol] and its officers at the Antelope Scales had consistently targeted and harassed trucks and vehicles belonging to the Bonillas due to the ill will that the CHP officers had toward Plaintiff Guillermo Bonilla and his employees.").
According to Carradine, on August 27, 2014, after he entered the Highway Patrol office at the Antelope Scales, but before Ward inspected the Truck, "the first thing that Officer Ward said to [Carradine] . . . were words to the effect that 'that's Bonilla's truck and I'm going to have it towed'." [Carradine Decl. at ¶ 4.] After Ward said that, he "started giving [Carradine] a real hard time about the Truck and the Flatbed," and he told Carradine he was going to impound them, which he did later that day. [Id.] Carradine also states Officer X was at the Antelope Scales on August 27, 2014, and Ward called Officer X to the Truck before the impoundment. After the impoundment, Officer X drove Carradine to the bus station. [Id. at ¶ 15.] During that ride, Officer X said, "what Officer Ward was doing was 'overboard'" and, if Officer X "had known what Officer Ward was doing, he would not have come out to the truck" when Ward called him. [Id.] Based on these statements, Carradine believes Officer X "strongly disapproved of what Officer Ward was doing because it was abusive and wrongful conduct." [Id.]
B. Release Attempts
Sandra Bonilla contacted Rincon Towing to try to obtain the release of the Truck and Flatbed, and Rincon Towing referred her to McKenzie to obtain authorization for the release. According to Sandra Bonilla, McKenzie said that, in order for the Truck and Flatbed to be released, Sandra Bonilla had to obtain a motor carrier permit and repair the violations that the Truck was cited for. Sandra Bonilla obtained the permit and purchased the parts necessary for the repairs. When Sandra Bonilla attempted to arrange to for the repairs to be made to the Truck inside Rincon Towing's yard, Rincon said she had to obtain McKenzie's authorization. Sandra Bonilla contacted McKenzie, who refused to authorize the repairs, but did not provide an explanation for the refusal. [S. Bonilla Decl. at ¶¶ 8-9.] According to Guillermo Bonilla, when he explained to McKenzie that Rincon Towing was not allowing Plaintiffs to repair the Truck in the tow yard, McKenzie "said words to the effect, 'Forget about the repairs, get me a current motor carrier permit and I will release the Truck'." [G. Bonilla Decl. at ¶ 10.] He delivered "a copy of Sandra Bonilla's current and valid motor carrier permit for Officer McKenzie" at the Highway Patrol office, but McKenzie never attempted to contact them after that. [Id.]
Sandra Bonilla asserts McKenzie's refusal to authorize repairs in the tow yard made it impossible to obtain the release of the Truck and Flatbed. Sandra Bonilla also contends there was no legal basis to require the completion of repairs prior to release, [S. Bonilla Decl. at ¶ 9,] and the Highway Patrol "knew or should have known that the Truck was not . . . being moved . . . for any reasons that required repairs, current registration or permits," [id. at ¶ 15].
Plaintiffs showed McKenzie a current motor carrier permit, but McKenzie refused to authorize the release of the Truck and Flatbed. According to Sandra Bonilla, McKenzie said Sandra Bonilla had to obtain Defendant Sergeant Peterson's ("Peterson") authorization for the release, but Peterson told Sandra Bonilla she had to obtain McKenzie's authorization. The Highway Patrol eventually informed Sandra Bonilla by telephone that it was not going to authorize the release of the Truck to her. [Id. at ¶ 10.] Sandra Bonilla states the Highway Patrol never gave her "a valid reason" why the Flatbed was not released to her. [Id. at ¶ 11.] According to Sandra Bonilla, neither McKenzie, Peterson, nor anyone else from the Highway Patrol ever informed her that a current registration for each vehicle was required to obtain the release of the Truck and Flatbed. Id. at ¶¶ 12-13; see also G. Bonilla Decl. at ¶¶ 6, 9-10 (similar statements by Guillermo Bonilla that he was never so informed).
The permit that Sandra Bonilla refers to in paragraphs 8 and 10 appears to be another trip permit that permitted the Truck to be towed from the Rincon Towing yard to Osorio. See S. Bonilla Decl. at ¶ 16.
Peterson has not been served and has not appeared in this case. Defendants' motion to dismiss Plaintiffs' claims against Peterson, [filed 1/29/19 (dkt. no. 75),] will be addressed in a separate order.
McKenzie states Plaintiffs never provided her with any documents regarding the Truck or Flatbed, nor did Plaintiffs, or anyone else, provide her with information showing that the Truck and Flatbed had valid registrations at the time of the impoundment or afterward. Further, no one advised McKenzie that Plaintiffs provided proof of registration for the Truck and Flatbed to the Highway Patrol. [Defs.' SOF, Exh. 1 (Decl. of Muriel McKenzie in Supp. of Motion for Summary Judgment ("McKenzie Decl.")) at ¶¶ 4-5.] The parties agree that Plaintiffs only spoke with McKenzie on the telephone. [Defs.' SOF at ¶ 31; Pltfs.' Responsive SOF at ¶ 31.]
During the relevant period, McKenzie was employed by the Highway Patrol and served as its Motor Carrier Permit Officer. [McKenzie Decl. at ¶ 2.] Her duties included: issuing identification numbers to commercial motor carriers of property that operated in California; conducting follow-up inquiries regarding carriers that violated the permit requirements; and authorizing the impoundment of vehicles that the DMV confirmed had a suspended motor carrier permit. [Id.]
The parties also agree that: on October 20, 2014, Rincon Towing sold the Truck to Cesar Cazarez for $2,500.00 and Rincon Towing sold the Flatbed to Jose Jaime for $2,000.00; McKenzie did not authorize Rincon Towing to sell the Truck and Flatbed; and she was not immediately advised that they had been sold. [Defs.' SOF at ¶¶ 35-37; Pltfs.' Responsive SOF at ¶¶ 35-37.] It is undisputed that: neither Plaintiffs nor anyone else had a valid registration for the Truck from the date of the impoundment to the date of the sale; the Truck's registration had been expired since December 31, 2012; neither Plaintiffs nor anyone else had a valid registration for the Flatbed from the date of the impoundment through November 12, 2014; and the Flatbed's registration had been expired since July 31, 2013. [Defs.' SOF at ¶¶ 38-42; Pltfs.' Responsive SOF at ¶¶ 38-42.]
Sandra Bonilla believes the Truck and Flatbed were sold "at a lien sale." [S. Bonilla Decl. at ¶ 14.]
II. This Action
Plaintiffs initiated this action in state court on November 24, 2015, and the Highway Patrol removed the case on July 25, 2016, based on federal question jurisdiction. [Notice of Removal of Action; Under 28 U.S.C. § 1441(a) (Federal Question) ("Notice of Removal"), filed 7/25/16 (dkt. no. 1), Exh. A (Complaint - Personal Injury, Property Damage, Wrongful Death ("Complaint")); Notice of Removal at ¶¶ 4-5.] On August 1, 2016, the Highway Patrol filed a motion to dismiss the Complaint, which was granted in part and denied in part in a January 9, 2017 order, which was amended on January 17, 2017 ("1/17/17 Order"). [Dkt. nos. 7, 21, 23.] Plaintiffs filed their First Amended Complaint ("Amended Complaint") on March 16, 2017. [Dkt. no. 29.]
McKenzie had not been served at the time the Highway Patrol removed the action. [Notice of Removal at ¶ 3.]
The 1/17/17 Order is also available at 2017 WL 202550.
The Amended Complaint alleges the following claims: a negligence claim against Defendants and Peterson ("Count I"); an intentional tort claim against Defendants and Peterson ("Count II"); a claim against Defendants and Peterson alleging violations of the mandatory duties imposed by Cal. Veh. Code §§ 22651 and 34660 ("Count III"); and a 42 U.S.C. § 1983 claim against McKenzie and Peterson alleging violation of Plaintiffs' Fourteenth Amendment right to due process ("Count IV").
In the instant Motion, Defendants argue they are entitled to summary judgment on all of Plaintiffs' claims because all the claims are based upon the theory that §§ 22651 and 34660 required the Highway Patrol to release the Truck and the Flatbed to Plaintiffs. Defendants assert release of the Truck and Flatbed was not mandatory because neither vehicle had a valid registration at the time of the impoundment, nor did Plaintiffs obtain valid registrations for the vehicles after the impoundment. Further, Defendants argue they have immunity as to Plaintiffs' state law claims under various provisions of the California Government Code, including immunity for discretionary decisions and immunity for acts or omissions occurring in the execution or enforcement of state law.
As to Count IV, Defendants argue McKenzie cannot be held liable for Ward's decision to impound the Truck and Flatbed, and they argue McKenzie cannot be held liable for the decision not to release the Truck and Flatbed because there is no evidence that Plaintiffs provided proof of valid registration. Further, even if there was some potential liability, McKenzie is entitled to qualified immunity.
DISCUSSION
I. Request to Name Ward as a Defendant
At the outset, this Court must address Plaintiffs' request for leave to name Ward as Defendant "DOE No. 1." [Mem. in Opp. at 21.] The request is denied because Plaintiffs' claims against the Doe Defendants named in the Amended Complaint have already been dismissed. See Status (Pre-trial Scheduling) Order, filed 2/9/18 (dkt. no. 53), at 1 ("This action, including any counterclaims, cross-claims, and third party complaints is hereby DISMISSED as to all DOE or other fictitiously-named defendants." (emphases in original)).
II. State Law Claims
As with Counts I, II, and III of the original Complaint, Counts I, II, and III of the Amended Complaint allege state law claims, to which state substantive law applies. See 1/17/17 Order, 2017 WL 202550, at *2. Count I is based on both the impoundment of the Truck and Flatbed and the refusal to release them. See, e.g., Amended Complaint at ¶ 17 ("The [Highway Patrol] and its agents, Officer McKenzie and Sgt. Peterson had a legal duty to use due care when seizing and refusing to release Plaintiff's property."). Count II also appears to be based on both the impoundment and the seizure. See id. at ¶¶ 20-21 (alleging, among the acts or omissions in which "defendants negligently caused the damage to plaintiffs," that the Highway Patrol, "through its agents, acting within the scope and employment as law enforcement officers of the [Highway Patrol], seized" the Truck and Flatbed and the Highway Patrol "and its agents refused to release the property"). Count III is based upon the failure to release the Truck and the Flatbed. See, e.g., id. at pg. 10, ¶ 23 (alleging the Highway Patrol "and its agents' . . . failure to release the property . . . proximately caused Plaintiff's financial loss").
A. Claims Based on the Impoundment
1. McKenzie
Cal. Gov't Code § 820 states:
(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.Cal. Gov't Code § 820.8 states, in pertinent part: "Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person." Even supervisory personnel must have personal involvement in order to be held liable under California law for the tortious acts of their subordinates. M.B. ex rel. Beverly v. Cal. Dep't of Corr. & Rehab., No. 2:17-cv-2395 WBS DB, 2018 WL 4050743, at *7 (E.D. Cal. Aug. 23, 2018) (quoting Milton v. Nelson, 527 F.2d 1158, 1159 (9th Cir. 1975) (holding that under California law, including § 820.8, a prison director, warden, and associate warden could not be held vicariously liable for the actions of their subordinates)), reconsideration granted in part on other grounds, 2018 WL 5024093, at *1 (Oct. 16, 2018).
(b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.
There is no evidence in the instant case suggesting that McKenzie was personally involved in the impoundment of the Truck and Flatbed. Nor is there any evidence that: 1) McKenzie had a supervisory role over Ward, or anyone else involved in the impoundment; and 2) her acts as a supervisor were a proximate cause of the impoundment. Cf. id. (stating that, in order to survive a motion to dismiss, the plaintiff "must allege sufficient facts to allege that [the defendant]'s own acts as a supervisor proximately caused the injury" (citation omitted)). Therefore, even when viewed in the light most favorable to Plaintiffs, the evidence is insufficient to raise a genuine issue of material fact as to the state law claims against McKenzie based on the impoundment of the Truck and Flatbed, and McKenzie is entitled to summary judgment as to those portions of Counts I and II. See Fed. R. Civ. P. 56(a) ("The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.").
In ruling on a motion for summary judgment, "the judge must view the evidence in the light most favorable to the nonmoving party and make all reasonable inferences in favor of that party." Eat Right Foods Ltd. v. Whole Foods Mkt., Inc., 880 F.3d 1109, 1118 (9th Cir. 2018) (citing Tolan v. Cotton, 134 S. Ct. 1861, 1866-68 (2014) (per curiam)).
2. Highway Patrol
To the extent that Plaintiffs' claims against the Highway Patrol are based on the impoundment of the Truck and Flatbed, Plaintiffs argue the Highway Patrol is liable for the actions of Ward and others. Cal. Gov't Code § 815.2 states:
(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.Further, Cal. Gov't Code § 820.2 states: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."
(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.
Ward impounded the Truck and Flatbed on the grounds that the Truck's registration was expired and the lack of a valid license. [Ward Decl. at ¶ 8.] Thus, they were impounded pursuant to Cal. Veh. Code §§ 22 651(o)(1)(A) and 34660(d). Section 22651 states, in pertinent part:
Ward also describes a number of other violations, [Ward Decl. at ¶¶ 4-7,] and Plaintiffs have submitted testimony disputing those violations, see, e.g., Carradine Decl. at ¶¶ 11-13. Even though there are genuine disputes of fact those purported violations, they are not discussed here because they are not material to Plaintiffs' state law claims based on the impoundment of the Truck and Flatbed. See Eat Right, 880 F.3d at 1118 ("A material fact is one 'that might affect the outcome of the suit under the governing law.'" (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986))). --------
A peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, or a regularly employed and salaried employee, who is engaged in directing traffic or enforcing parking laws and regulations, of a city, county, or jurisdiction of a state agency in which a vehicle is located, may remove a vehicle located within the territorial limits in which the officer or employee may act, under the following circumstances:
. . . .
(o)(1) If a vehicle is found or operated upon a highway, public land, or an offstreet parking facility under any of the following circumstances:
(Emphasis added.) Similarly, § 34662(d) states, in pertinent part:(A) With a registration expiration date in excess of six months before the date it is found or operated on the highway, public lands, or the offstreet parking facility.
A member of the Department of the California Highway Patrol may impound a vehicle or combination of vehicles operated by a motor carrier of property, when the vehicle or combination of vehicles is found upon a highway, any public lands, or an offstreet parking facility and the motor carrier is found to be in violation of this section or of subdivision (a) of Section 34620.Cal. Veh. Code § 34620(a) establishes the requirements of a registered motor carrier identification number and valid motor carrier permit.
Because both § 22651(o)(1)(A) and § 34660(d) use the term "may," they allow state officials to make a discretionary decision to impound a vehicle. Thus, under § 820.2, Ward cannot be held liable under California state law for the decision to impound the Truck and Flatbed, whether or not he abused that discretion. Ward's immunity from state law claims arising from that decision also means that the Highway Patrol also cannot be held liable for those state law claims. See § 815.2(b). Even when viewed in the light most favorable to Plaintiffs, the evidence is insufficient to raise a genuine issue of material fact as to the state law claims against the Highway Patrol based on the impoundment of the Truck and Flatbed, and the Highway Patrol is entitled to summary judgment as to those portions of Counts I and II.
B. Claims Based on the Refusal to Release
1. McKenzie
As to Count III and the portions of Counts I and II based on the refusal to release the Truck and Flatbed, Defendants argue the claims against McKenzie fail because the decision not to release the vehicles was a discretionary decision. Section 22651(o)(3) states, in pertinent part:
For the purposes of this subdivision, the vehicle shall be released under any of the following circumstances:
(Emphasis added.) Similarly, when a vehicle is impounded pursuant to § 34660(d),(A) If the vehicle has been removed pursuant to subparagraph (A), (B), or (C) of paragraph (1), to the registered owner of, or person in control of, the vehicle only after the owner or person furnishes the storing law enforcement agency with proof of current registration and a valid driver's license to operate the vehicle.
the vehicle shall be released to the registered owner or authorized agent only after the registered owner or authorized agent furnishes the Department of the California Highway Patrol with proof of current registration, a currently valid driver's license of the appropriate class to operate the vehicle or combination of vehicles, and proof of compliance with this division.(Emphasis added.) Because both § 22651(o)(3)(A) and § 334660(d) state that an impounded vehicle "shall be released" when the described documentation is provided, the decision whether to release an impounded vehicle is not a discretionary decision. Section 820.2 therefore does not automatically exempt McKenzie from liability for Plaintiffs' claims arising from the refusal to release the Truck and Flatbed after impoundment.
However, it is undisputed that neither the Truck nor the Flatbed had a valid registration at any time from the time that they were impounded until Rincon Towing sold them. See Defs.' SOF at ¶¶ 38-42; Pltfs.' Responsive SOF at ¶¶ 38-42. Thus, Plaintiffs did not provide the documentation that would have made the release of the vehicles mandatory under § 22651(o)(3)(A) and § 334660(d). Plaintiffs' position is that Defendants were negligent in their refusal to release the Truck and Flatbed because Defendants never informed Plaintiffs that current registrations were necessary. See S. Bonilla Decl. at ¶¶ 12-13; G. Bonilla Decl. at ¶¶ 6, 9-10.
Under California law, "the well-known elements of any negligence cause of action" are "duty, breach of duty, proximate cause and damages." Lockheed Martin Corp. v. Superior Court, 63 P.3d 913, 919 (Cal. 2003) (citation and internal quotation marks omitted). Plaintiffs assert "Defendants had a mandatory duty, at a minimum, to inform" them that current registrations were required to obtain the release of the Truck and the Flatbed. [Mem. in Opp. at 13-14.] Plaintiffs, however, cite no legal authority to support their position that Defendants had a duty to inform Plaintiffs of the requirements for release that are clearly stated in § 22651(o)(3)(A) and § 334660(d). Nothing in the language of those statutes requires that notice of the release requirements be given, apart from the notice provided in the publicly available statutes themselves. While Plaintiffs' frustration with the situation is understandable, there is no legal support for their position that McKenzie's failure to inform Plaintiffs of the requirements to obtain the release of the Truck and Flatbed was negligent. Because Plaintiffs did not satisfy the requirements of § 22651(o)(3)(A) and § 334660(d), McKenzie did not have a mandatory duty to release the Truck and Flatbed. Even viewing the record in the light most favorable to Plaintiffs, there is insufficient evidence to raise a genuine issue of material fact as to the state law claims against McKenzie based on the refusal to release the Truck and Flatbed, and McKenzie is entitled to summary judgment as to Count III and the portions of Counts I and II based on the refusal to release the Truck and Flatbed.
2. Highway Patrol
As noted in the 1/17/17 Order, Cal. Gov't Code § 815 and the case law interpreting it require "a specific statute declaring them to be liable, or at least creating some specific duty of care[,]" in order for a public entity to be subject to tort liability. 1/17/17 Order, 2017 WL 202550, at *2 (emphasis in 1/17/17 Order) (quoting Eastburn v. Reg'l Fire Prot. Auth., 80 P.3d 656, 660 (Cal. 2003)). Because the specific statutes relevant to this case, § 22651(o)(3)(A) and § 334660(d), did not make the release of the Truck and Flatbed mandatory, there is no specific statute that either rendered the Highway Patrol liable for the refusal to release the Truck and Flatbed or created a specific duty of care under the circumstances of this case. Even viewing the record in the light most favorable to Plaintiffs, there is insufficient evidence to raise a genuine issue of material fact as to the state law claims against the Highway Patrol based on the refusal to release the Truck and Flatbed. The Highway Patrol is therefore entitled to summary judgment as to Count III and the portions of Counts I and II based on the refusal to release the Truck and Flatbed.
III. Section 1983 Claim
Count IV alleges a claim against McKenzie, pursuant to 42 U.S.C. § 1983, for violations of Plaintiffs' Fourteenth Amendment rights. Section 1983 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 party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .This district court has stated:
"The Fourteenth Amendment protects individuals against the deprivation of liberty or property by the government without due process. A section 1983 claim based upon procedural due process thus has three elements: (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; (3) lack of process." Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993).Ciurar v. California, No. 2:20-cv-2089 JAM DB PS, 2021 WL 1222875, at *2 (E.D. Cal. Apr. 1, 2021).
A. Impoundment
Defendants acknowledge that the impoundment of a vehicle constitutes a seizure for purposes of the Fourth Amendment. [Mem. in Supp. of Motion at 13 (citing Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005)).] However, this district court has recognized:
To be held liable under Section 1983, each defendant must have personally participated in the deprivation of the plaintiff's rights. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The statute requires an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that "[a] person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the
deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).Vivanco v. Cal. Dep't of Corr. & Rehab., Case No.: 1:17-cv-00434-BAM, 2019 WL 2764397, at *5 (E.D. Cal. July 2, 2019) (alteration in Vivanco), aff'd, 817 F. App'x 492 (9th Cir. 2020). There is no evidence in the record which raises a genuine issue of material fact as to the issue of whether McKenzie personally participated in the impoundment of the Truck and Flatbed. Nor is there any evidence which raises a genuine issue of material fact as to the issue of whether McKenzie had supervisory authority over anyone involved in the impoundment. Cf. id. at *7 (discussing when a supervisor can be held liable, even without personal participation in the constitutional deprivation). McKenzie is therefore entitled to summary judgment as to the portion of Count IV based on the impoundment of the Truck and Flatbed.
B. Refusal to Release
The issue of whether Plaintiffs had a constitutionally protected right to the release of the Truck and Flatbed is similar to the issue of whether a plaintiff has a constitutionally protected right to receive a government benefit, like a license or a permit. In that context, this district court has stated:
"Property interests are not created by the Constitution but 'by existing rules or
understandings that stem from an independent source such as state law . . . .'" Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005) (quoting [Bd. of Regents of State Colls. v.] Roth, 408 U.S. [564,] 577 [(1972)]). "In some instances, a person can have a constitutionally protected property interest in a government benefit, such as a license or permit." [Gerhart v. Lack Cnty.], 637 F.3d [1013,] 1019 [(9th Cir. 2011)] (citing Roth, 408 U.S. at 577). But a plaintiff who asserts a property interest in a permit or other government benefit cannot simply demonstrate that he had a "unilateral expectation" or an "abstract need or desire" for that benefit; rather, he must demonstrate "a legitimate claim of entitlement to it." Roth, 408 U.S. at 577 (emphasis in original).Anselmo v. Mull, Civ. No. 2:12-01422 WBS EFB, 2013 WL 5817560, at *8-9 (E.D. Cal. Oct. 29, 2013) (emphasis and some alterations in Anselmo).
Whether plaintiffs have an "expectation of entitlement sufficient to create a property interest . . . depend[s] largely upon the extent to which the statute contains mandatory language that restricts the discretion of the decisionmaker." Allen v. City of Beverly Hills, 911 F.2d 367, 370 (9th Cir. 1990) (quoting Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir. 1980)). "[A]n entitlement to a government permit exists when a state law or regulation requires that the permit be issued once certain requirements are satisfied." Gerhart, 637 F.3d at 1019 (citing Groten v. California, 251 F.3d 844, 850 (9th Cir. 2001)). By contrast, if the decision to grant a permit or other benefit is discretionary, plaintiffs have no property interest in that benefit. Doyle v. City of Medford, 606 F.3d 667, 672 (9th Cir. 2010) (citing Jacobson, 627 F.3d [sic] at 180).
Because Plaintiffs did not satisfy the requirements of § 22651(o)(3)(A) and § 334660(d), they did not have "a legitimate claim of entitlement to" the release of the Truck and Flatbed under the circumstances of this case. See Roth, 408 U.S. at 577. Plaintiffs' inability to establish a protected property right in the release of the Truck and Flatbed is fatal to their § 1983 claim against McKenzie. McKenzie is therefore entitled to summary judgment as to the portion of Count IV based on the refusal to release the Truck and Flatbed.
CONCLUSION
On the basis of the foregoing, Defendants' Motion for Summary Judgment, filed January 16, 2019, is HEREBY GRANTED. There being no remaining claims against the Highway Patrol or McKenzie, the Clerk's Office is DIRECTED to: 1) terminate McKenzie as a party immediately; and 2) terminate the Highway Patrol as a party thirty days from the filing of this order. The Highway Patrol will remain listed as a party during that time because of its obligations under other orders issued by this Court.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 21, 2021.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge