Opinion
21-cv-02558-JCS
08-27-2021
MELISSA BARGE, Plaintiff, v. MARC HORWITZ, et al., Defendants.
REPORT AND RECOMMENDATION RE REVIEW UNDER 28 U.S.C. 1915
JOSEPH C. SPERO, Chief Magistrate Judge
I. INTRODUCTION
Plaintiff Melissa Barge, pro se, applied to proceed in forma pauperis. The undersigned granted the application and reviewed Plaintiff's Complaint under 28 U.S.C. § 1915(e)(2)(B). Finding that some of Plaintiff's claims were insufficiently pled, the undersigned issued an order to show cause (“OSC”) why those claims should not be dismissed. In lieu of a response, Plaintiff has filed an amended complaint (“First Amended Complaint” or “FAC”). Because Plaintiff has declined consent to magistrate jurisdiction pursuant to 28 U.S.C. § 636(c), the undersigned reassigns this case to a district judge with a report and recommendation addressing the adequacy of Plaintiff's First Amended Complaint. For the reasons set forth below, it is recommended that the Court dismiss the First Amended Complaint in part, allow the remaining claims to go forward, and order service.
II. BACKGROUND
A. The Complaint and the OSC
In the original Complaint, Plaintiff alleged that she was stopped by Defendant Officer 1 Marc Hurwitz, of the Alameda Police Department, and that when she challenged his assertion that she had been talking on her cell phone while driving and did not provide identification upon request, 15 additional officers came to the scene and she was forcibly removed her from the car, placed her in handcuffs and “forced in to the back of an SUV with no explanation.” Complaint ¶¶ 2-8. According to Plaintiff, she was taken to the police station, where she was held for 15 to 20 minutes, and then to Santa Rita County Jail. Id. ¶¶ 11, 14. Plaintiff further alleged that on the way to the jail she was forced to sit in an uncomfortable position, injuring her arms. Id. ¶ 15. In the meantime, she alleged, the Alameda Police Department turned her car over to Defendant Ken Bett 's Towing, a company that “works under contract with the City of Alameda and Alameda Police.” Id. ¶¶ 13, 33. Subsequently, Ken Bett's Towing refused to release the car to Plaintiff unless she paid $4,000, which she refused to do. Id. ¶ 19. Plaintiff alleged Ken Bett's Towing also refused to allow Plaintiff to retrieve personal property from her car. Id. ¶ 21. On her third attempt to retrieve the car from Ken Bett's Towing, Plaintiff alleged that an employee of Ken Bett's Towing told her, “the Alameda Police Department told me not to give it to you.” Id. ¶ 21. She alleged that her car was never returned to her and that currently an “unknown person has possession and use of it. Id. ¶ 24.
In the original complaint, this Defendant's name was spelled both as “Horwitz” and “Hurwitz.” In the First Amended Complaint, Plaintiff consistently spells his name as “Hurwitz.” Therefore, the undersigned uses that spelling herein.
In the caption of her complaint, Plaintiff named as defendants Officer Hurwitz, the Alameda Police Department, the City of Alameda and Ken Bett's Towing. She asserted claims for violation of her Fourth and Fifth Amendment rights against Officer Hurwitz, the City of Alameda and Ken Bett's Towing, “in their official capacity.” She also asserted a claim for a “Stop and Identify Violation” and a claim under Article 1, section 16 of the California Constitution, both of which she appeared to assert against all defendants. Plaintiff sought a preliminary injunction enjoining Defendants from refusing to return her car, and various forms of declaratory relief, including a declaration that Defendants' actions are unconstitutional.
In the OSC, the undersigned construed Plaintiffs first three claims, based on the Fourth 2 and Fifth Amendments and the “Stop and Identify Violation, ” as civil rights claims asserted under 42 U.S.C. § 1983. The undersigned found that these claims failed to state a claim as to the Alameda Police Department, which is not a “person” within the meaning of § 1983. As to the City of Alameda, the Court founds that the claims failed to state a claim under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978) because Plaintiff's allegation that “[t]he City of Alameda [has] failed to adopt appropriate policies necessary to prevent violations and provide a reasonable solution for redress of colorable actions” (Complaint ¶ 41) was too conclusory to support an inference that the City is vicariously liable for any of the allegedly unconstitutional conduct of the officer. The undersigned further found that Ken Bett's Towing was not a proper defendant with respect to Plaintiff's Fourth Amendment claims because it had no connection to Plaintiff's arrest and detention. Finally, the undersigned found that as to Claim Four, which the undersigned construed as a claim under Article 1, Section 9 of the California Constitution, the claim failed because Plaintiff made only a passing reference to “use of ex post facto law” by Ken Bett's Towing but did not identify any such law.
B. The First Amended Complaint
In the First Amended Complaint, Plaintiff names the same Defendants as in her original complaint. The factual allegations are largely the same as in the original complaint, although Plaintiff has added allegations about the findings of a steering committee allegedly created by the Alameda City Manager in August 2020 to address Police Reform and Racial Equity, FAC ¶ 34, and allegations that her car has now been sold at auction, that Ken Bett's Towing has filed an unsuccessful small claims case against her, and that she has been receiving Fastrak tickets in her name. FAC ¶¶ 22, 39, 52. In addition, Plaintiff has attached four exhibits to the First Amended Complaint: 1) a picture that allegedly shows a “public notice” posted on Plaintiff's car (Exhibit A, referenced in FAC ¶ 37); 2) a copy of a Fastrak toll evasion notice addressed to Plaintiff (Exhibit B); 3) a notarized Certificate of Proof of Life (Exhibit C); and 4) a living trust instrument showing Melissa Barge as a grantor (Exhibit D). Plaintiff asks the Court to take judicial notice of these documents. See FAC at p. 2
In the First Amended Complaint, Plaintiff asserts the following claims: 1) Conversion 3 (Ken Bett's Towing and Alameda Police Department) (Claim One); 2) Fourth Amendment violation (Marc Hurwitz and Alameda Police Department) (Claim Two); 3) Common law malicious prosecution (Marc Hurwitz, Alameda Police Department, City of Alameda) (Claim Three); 4) First Amendment freedom of speech (Marc Hurwitz, Alameda Police Department, City of Alameda) (Claim Four); 5) “Municipal liability” under 42 U.S.C. § 1983 as to Plaintiff's First and Fourth Amendment claims (Alameda Police Department, City of Alameda) (Claim Five); 6) common law false arrest/false imprisonment (Marc Hurwitz, Alameda Police Department) (Claim Six); and 7) Common law negligence (Marc Hurwitz) (Claim Seven). In addition, Plaintiff alleges that Ken Bett's Towing violated her Fifth Amendment rights by refusing to return her car or allow her to retrieve her belongings from it, though she does not style the allegation as a separate claim. FAC ¶ 37. She also alleges that her Fourteenth Amendment rights were violated because she was deprived of property without due process when her car was towed. FAC ¶ 35. Plaintiff appears to have dropped her claim under the California Constitution. Plaintiff requests compensatory damages on all of her claims.
III. ANALYSIS
A. Legal Standards Under 28 U.S.C. § 1915 and Rule 12(b)(6)
Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996).
To state a claim for relief, a plaintiff must make “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Further, a claim may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6); see also Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007). In determining whether a plaintiff fails to state a claim, the court takes “all allegations of material fact in the complaint as true and construe[s] them in the light most favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 4 (9th Cir. 2007). However, “the tenet that a court must accept a complaint's allegations as true is inapplicable to legal conclusions [and] mere conclusory statements, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (internal quotation marks omitted). The complaint need not contain “detailed factual allegations, ” but must allege facts sufficient to “state a claim to relief that is plausible on its face.” Id. at 678 (citing Twombly, 550 U.S. at 570).
“Because Rule 12(b)(6) focuses on the ‘sufficiency' of a claim rather than the claim's substantive merits, ‘a court may [ordinarily] look only at the face of the complaint to decide a motion to dismiss,' Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002), including the exhibits attached to it.” DeLeon v. Colon, No. 320CV00791AJBBGS, 2021 WL 1626339, at *2 (S.D. Cal. Apr. 27, 2021) (citing Fed.R.Civ.P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be considered” in ruling on a Rule 12(b)(6) motion to dismiss.))). “However, exhibits that contradict the claims in a complaint may fatally undermine the complaint's allegations.” Id. (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (a plaintiff can “plead himself out of a claim by including. . . details contrary to his claims.”) (citing Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (courts “are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint.”))); Nat'l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (courts “may consider facts contained in documents attached to the complaint” to determining whether the complaint states a claim for relief)).
Where the complaint has been filed by a pro se plaintiff, courts must “construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 5 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies in the complaint could not be cured by amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute, as recognized in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). Further, when it dismisses the complaint of a pro se litigant with leave to amend, “the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively.” Id. (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)).
C. Sufficiency of Federal Claims
Construed liberally, the First Amended Complaint asserts the following federal claims: 1) a Fourth Amendment Claim against Officer Marc Hurwitz and the Alameda Police Department (Claim Two); 2) a First Amendment claim against Officer Marc Hurwitz, the Alameda Police Department, and the City of Alameda (Claim Four); 3) Monell claims against the City of Alameda and the Alameda Police Department based on the alleged First and Fourth Amendment violations (Claim Five); 4) a Fifth Amendment claim against Ken Bett's Towing; and 5) a Fourteenth Amendment due process claim. As Plaintiff does not identify any particular defendant with respect to the alleged Fourteenth Amendment violation, the undersigned construes it as a claim against Ken Bett's Towing.
The undersigned construes all of Plaintiff's federal claims as claims asserted under 42 U.S.C. § 1983. Section 1983 creates a cause of action against a “person who, under color of any [state law], subjects, or causes to be subjected, any [person] to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. A plaintiff bringing a claim under § 1983 must show that “(1) the action occurred ‘under color of state law' and (2) the action resulted in the deprivation of a constitutional right or federal statutory right.” Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). 6
As a preliminary matter, it is RECOMMENDED that all of the federal claims asserted against the Alameda Police Department be dismissed on the basis that it is not a proper defendant on a Section 1983 claim for the reasons set forth in the OSC. See Dkt. No. 8 at 5. The undersigned addresses Plaintiff's Section 1983 claims against the remaining Defendants below.
1. Fourth Amendment Claims
Plaintiff asserts Section 1983 claims based on violation of the Fourth Amendment against Officer Hurwitz (Claim Two) and the City of Alameda under Monell (Claim Five) on two theories: 1) that she was arrested without probable cause; and 2) excessive force was used against her. The undersigned finds that Plaintiff has adequately alleged a Fourth Amendment claim as to Defendant Hurwitz -- but not the City of Alameda -- under the first theory. She has not adequately alleged an excessive force claim as to either Officer Hurwitz or the City of Alameda.
Plaintiff alleges that Officer Hurwitz stopped her for talking on her cell phone while driving but that she was not, in fact, talking on her cell phone. She further alleges that she was arrested when she failed to produce identification after Officer Hurwitz requested that she do so. Drawing all reasonable inferences in Plaintiff's favor, these allegations are sufficient to raise a plausible inference that she was detained without reasonable suspicion, which is a violation of the Fourth Amendment under Terry v. Ohio, 392 U.S. 1, 27 (1968). Further, to the extent that the arrest allegedly was based on Plaintiff's refusal to provide identification when Officer Hurwitz asked her to do so, such an arrest violates the Fourth Amendment if the officer did not have reasonable suspicion to justify the stop under the Fourth Amendment, as is alleged here. See Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt Cty., 542 U.S. 177, 187-188 (2004) (holding that “[t]he principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop[, ]” that is, where there is reasonable suspicion to justify the stop and the request for identification is “reasonably related in scope to the circumstances which justified” the stop.).
On the other hand, to the extent Plaintiff seeks to assert a Fourth Amendment claim against Officer Hurwitz based on use of excessive force in removing Plaintiff from her vehicle and/or transporting her in handcuffs but otherwise unrestrained to Santa Rita jail, the claim is not sufficiently pled because the First Amended Complaint does not specifically allege that Officer 7 Hurwitz was involved in either use of force. See FAC ¶¶ 5-6 (alleging that “within seconds” of refusing to provide identification or step out of the car she was “surrounded by aprox[imately] 15 male officers”); ¶ 57 (alleging that “Plaintiff was removed from her property by several employees of the Alameda Police Department”); ¶¶ 12-13 (alleging that Plaintiff was “driven unrestrained (no seatbelt) to Santa Rita Jail” causing “bilateral tendon tears”). Plaintiff may be able to amend to assert an excessive force claim at a later stage of the case if she discovers the identities of the officers involved in the alleged use of force.
As to the City of Alameda, the undersigned concludes that while Plaintiff has expanded the allegations in the First Amended Complaint as to the existence of various alleged policies and practices, the allegations remain conclusory and insufficient. “In order to prove a claim for municipal liability under Monell, a plaintiff must ‘demonstrate that an “official policy, custom, or pattern” on the part of [the defendant] was “the actionable cause of the claimed injury.”' ” Caldwell v. City of San Francisco, No. 12-CV-01892-DMR, 2020 WL 7643124, at *13-14 (N.D. Cal. Dec. 23, 2020) (quoting Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1022, 1026 (9th Cir. 2008))). A municipality “can be held liable under Monell for policies of inaction or omission as well as policies of action or commission.” Id. (citing Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014) (citing Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1185-86 (9th Cir. 2002), overruled on other grounds in Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016))); see also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (“A policy of inaction or omission may be based on failure to implement procedural safeguards to prevent constitutional violations.”).
Here, Plaintiff seeks to hold the City of Alameda liable based on both affirmative customs and practices, see FAC ¶ 71, and a policy based on failure to prevent constitutional violations, see FAC ¶ 34. To plead Monell liability based on affirmative customs and practices, Plaintiff must plead “multiple incidents of alleged violations[, ]” Bagley v. City of Sunnyvale, No. 16-CV-02250-JSC, 2017 WL 5068567, at *5 (N.D. Cal. Nov. 3, 2017), but she has not alleged any other incidents involving similar conduct and therefore has not adequately alleged any affirmative 8 custom or practice sufficient to establish Monell liability. Her second theory fares no better.
“To impose liability on a local governmental entity for failing to act to preserve constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate indifference' to the plaintiff's constitutional right; and (4) that the policy is the ‘moving force behind the constitutional violation.' ” Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton, 489 U.S. 378, 389-91 (1989)). Thus, “failure to investigate and discipline employees in the face of widespread constitutional violations-can support an inference that an unconstitutional custom or practice has been unofficially adopted by a municipality.” Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1234 n. 8 (9th Cir. 2011). A municipality's “faulty and anemic . . . citizen complaint system” that “encourage[s] officers to believe that they [can] act with impunity” may also give rise to Monell liability where it is the cause of the plaintiff's constitutional injury. See Caldwell, 2020 WL 7643124, at *14.
In the FAC, however, the allegations are too vague and conclusory to establish deliberate indifference to Plaintiff's constitutional rights or that the City's inaction caused any alleged constitutional injury. Plaintiff alleges generally that the City of Alameda failed to “establish an official Alameda police department code of conduct, police policies and procedures review board, and protocols to address mugshot posting.” FAC ¶ 34. She does not link these general allegations to the specific conduct alleged in this case, however. As a result, she has not adequately alleged Monell liability based on inaction.
Therefore, it is RECOMMENDED that the Court dismiss Plaintiff's Section 1983 claims based on Fourth Amendment violations except with respect to the claim against Officer Hurwitz based on the allegation that he arrested Plaintiff without probable cause. As to the remaining claims, Plaintiff may be able to cure the defects discussed above and therefore should be given leave to amend.
2. First Amendment Claims
Plaintiff asserts a Section 1983 claim based on violation of the First Amendment against 9 Officer Hurwitz and the City of Alameda, alleging that Officer Hurwitz arrested her without probable cause, taking “a basic right to ask a question and convert[ing] it into a criminal act.” FAC ¶ 67. The Supreme Court has held that a Section 1983 claim under the First Amendment can be established where an arrest is made without probable cause and “the retaliation was a substantial or motivating factor behind the arrest.” Nieves v. Bartlett, 139 S.Ct. 1715, 1725 (2019) (quoting Lozman v. City of Riviera Beach, Fla., 138 S.Ct. 1945, 1952 (2018)) (internal brackets and citation omitted). As discussed above, Plaintiff has adequately alleged that she was arrested without probable cause. As she has further alleged that she was arrested immediately after questioning Officer Hurwitz's right to demand identification, FAC ¶ 3, the allegations raise a plausible inference that she was arrested in retaliation for asking why she needed to produce identification. Therefore, this claim is sufficiently pled as to Officer Hurwitz. On the other hand, she has not alleged Monell liability as to her First Amendment claim against the City of Alameda for the reasons discussed above.
3. Fifth and Fourteenth Amendment Claims
Although not styled as separate claims, Plaintiff alleges that Ken Bett's Towing violated her Fifth and Fourteenth Amendment rights by depriving her of her car without due process of law. As a preliminary matter, the undersigned finds that the Fifth Amendment claim fails because the Due Process Clause of the Fifth Amendment applies to deprivations by the United States and Plaintiff does not allege that the United States was involved in any of the conduct that gives rise to the claims in this case. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without ‘due process of law.' ”); Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (“The Due Process Clause of the Fifth Amendment and the equal protection component thereof apply only to actions of the federal government-not to those of state or local governments.”) (citing Schweiker v. Wilson, 450 U.S. 221, 227, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981)). Rather, the conduct alleged in the First Amended Complaint relates to a deprivation of property by Ken Bett's Towing - a company that is alleged to provide towing services under a contract with the City of Alameda and 10 to be in “collusion” with the Alameda Police Department, implicating the Fourteenth Amendment Due Process Clause. See FAC ¶¶ 32, 38.
Turning to the merits, the undersigned concludes that the allegations are sufficient to satisfy Section 1983's state action requirement even though Kenn Bett's Towing is not itself a governmental entity and to allege a deprivation of due process. Although a private party generally does not satisfy Section 1983's state action requirement, that requirement is met where a private party “is a willful participant in joint action with the State or its agents, ” for example, where there is a conspiracy between a private party and the police. See Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983) (citations and internal quotations omitted). Thus, the Ninth Circuit has held that “a private towing company acting at the behest of a police officer and pursuant to a statutory scheme designed solely to accomplish the state's purpose of enforcing its traffic laws, acts under color of state law for purposes of section 1983.” Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1322 (9th Cir. 1982) (citing Stypmann v. City and County of San Francisco, 557 F.2d 1338, 1341-42 (9th Cir. 1977) (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974))). Here, Plaintiff alleges that Ken Bett's Towing is under contract with the City of Alameda and further, that it refused to return Plaintiff's vehicle to her on the instructions of the Alameda Police Department, which is sufficient to allege state action. FAC ¶¶ 18-21.
Further, the allegations are sufficient to state a claim for violation of the due process clause under the Fourteenth Amendment as Plaintiff has alleged that she was not offered any post-hearing process to challenge the seizure of her car or its eventual sale to a third party. See Stypmann v. City & Cty. of San Francisco, 557 F.2d at 1344 (“Seizure of property without prior hearing has been sustained only where the owner is afforded prompt post-seizure hearing at which the person seizing the property must at least make a showing of probable cause.”); Hawkins v. San Mateo Cty. L. Libr., No. C 05-2623 SI(PR), 2007 WL 1795749, at *5 (N.D. Cal. June 21, 2007) (“The allegations fairly put El Dorado Towing Company on notice that plaintiff claims he was denied his due process rights to notice and an opportunity to be heard before his car was sold.”).
Therefore, it is RECOMMENDED that Plaintiff be allowed to proceed with a claim 11 against Ken Bett's Towing for violation of her right to due process under Section 1983 and the Fourteenth Amendment but that her Fifth Amendment Claim against that defendant be dismissed.
D. Sufficiency of State Law Claims
Plaintiff asserts the following state law claims: 1) Conversion (Ken Bett's Towing and Alameda Police Department) (Claim One); 2) Common law malicious prosecution (Marc Hurwitz, Alameda Police Department, City of Alameda) (Claim Three); 3) common law false arrest/false imprisonment (Marc Hurwitz, Alameda Police Department) (Claim Six); and 7) Common law negligence (Marc Hurwitz) (Claim Seven).
These claims are barred as to Defendants Alameda Police Department and the City of Alameda under California Government Code § 815(a), which provides: “Except as otherwise provided by statute . . . [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Cal. Gov't. Code § 815(a). Under this provision, public entities may be held liable only if a statute is found declaring them to be liable. Forbes v. Cty. of San Bernardino, 101 Cal.App.4th 48, 53 (2002) (citations omitted); see also Munoz v. City of Union City, 120 Cal.App.4th 1077, 1112 (2004) (Direct tort liability of public entities under state law must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care.). Therefore, it is RECOMMENDED that the state law claims, all of which are asserted under common law, be dismissed as to the Alameda Police Department and the City of Alameda.
The state law claims are also barred as to Officer Hurwitz because Plaintiff fails to allege that she exhausted her administrative remedies under the California Tort Claims Act (“CTCA”). The CTCA exhaustion requirement applies when a plaintiff alleges “a cause of action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee . . . . ” Cal. Gov't Code § 950.2. “Generally, California courts determine that a public employee is acting in the course and scope of his employment when ‘he is engaged in work he was employed to perform, or when the act is an incident to his duty and was performed for the benefit of his employer and not to serve his own purposes or convenience.' ” Wilson-Combs v. California Dep't of Consumer Affs., 555 F.Supp. 2d 12 1110, 1118 (E.D. Cal. 2008) (quoting Burgdorf v. Funder, 246 Cal.App.2d 443, 448 (1966)). Plaintiff does not allege any facts that suggest that Officer Hurwitz was acting outside of the scope of his employment when he stopped and subsequently arrested her. Nor does she allege that she presented her claim to the City of Alameda or the Alameda Police Department as required under Cal. Gov't Code section 915. Therefore, it is RECOMMENDED that Plaintiff's state law claims against Officer Hurwitz be dismissed.
The only remaining state law claim is Plaintiff's claim for conversion against Ken Bett's Towing. “In California, conversion has three elements: (1) ownership or right to possession of property, (2) wrongful disposition of the property right of another, and (3) damages.” Don King Prods./Kingvision v. Lovato, 911 F.Supp. 419, 423 (N.D. Cal. 1995). “Any act of dominion wrongfully exerted over the personal property of another is conversion.” Card Tech Int'l, LLLP v. Provenzano, 2012 WL 2135357, at *30 (C.D. Cal. June 7, 2012) (citing Plummer v. Day/Eisenberg, LLP, 184 Cal.App.4th 38, 50 (2010)). Where the towing and impoundment of a car comports with California law, the second element is not met and therefore the towing company cannot be held liable for conversion. Cotton v. Cty. of San Bernardino, No. EDCV 182343 VAP AGR, 2020 WL 5900154, at *19 (C.D. Cal. Sept. 1, 2020), report and recommendation adopted, No. EDCV 182343 VAP AGR, 2020 WL 5892026 (C.D. Cal. Oct. 2, 2020). Likewise, the towing company may be entitled to a “good faith” defense on the basis that it was acting at the behest of the police. See Clement v. City of Glendale, 518 F.3d 1090, 1097 (9th Cir. 2008). It is not apparent from the face of the complaint, however, that the seizure, impoundment, and ultimate sale of Plaintiff's car was proper under California law. Moreover, while Plaintiff alleges she was told by the towing company that it had been instructed by the Alameda Police Department not to return her car to her, she does not allege that Ken Bett's Towing sold her car based on instructions from the Alameda Police Department. Therefore, the undersigned concludes that these are issues better decided at a later stage of the case and that Plaintiff's conversion claim against Ken Bett's Towing is sufficient to survive preliminary review under 28 U.S.C. § 1915.
IV.CONCLUSION
For the reasons stated above, it is recommended that the Court dismiss the following 13 claims: 1) all of Plaintiff s claims against the Alameda Police Department and the City of Alameda; 2) the Fourth Amendment claim against Officer Hurwitz to the extent it is based on excessive force and all of the state law claims asserted against Officer Hurwitz; 3) the Fifth Amendment claim asserted against Ken Bett's Towing. Plaintiff should be given leave to amend except as to the Section 1983 claims asserted against the Alameda Police Department, which cannot be cured. It is further recommended that the Court order service of the First Amended Complaint.
If Plaintiff objects to this recommendation she may file an objection within two weeks of the date on which she receives this Report & Recommendation. 14