1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EVAN WILLIAM BLICKENSTAFF, Case No. 21-cv-09952-WHO
8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS
10 CITY OF HAYWARD, et al., Re: Dkt. No. 32 Defendants. 11
12 13 Plaintiff Evan Blickenstaff accuses defendants City of Hayward (“the City”) and six 14 Hayward police officers (Daniel Morgan, Alicia Romero, Roberto Gonzalez, Tommie Clayton, 15 Ryan Cantrell, and Garett Wagner) (collectively, “the defendants”) of violating his civil rights and 16 other laws when they towed a motor home in which Blickenstaff was living.1 As currently 17 pleaded, Blickenstaff has not plausibly alleged a Fourth Amendment violation because the seizure 18 of his motor home appears to fall within the community caretaking exception to the warrant 19 requirement. Nor does he allege a violation of procedural due process under the Fourteenth 20 Amendment because a sticker placed on the vehicle provided sufficient notice of removal and he 21 has not shown that exceptions to the post-tow hearing requirement did not apply. Neither party 22 has sufficiently addressed the Eighth Amendment claim, and for the moment, I cannot tell that it is 23 plausibly alleged. Because Blickenstaff’s conspiracy, Bane Act, and Monell liability claims rely 24 on a constitutional violation, which has not been sufficiently pleaded, they too are DISMISSED. 25 So is the conversion claim: Blickenstaff has not shown that the defendants acted wrongfully. The 26 motion to dismiss the First Amended Complaint (“FAC”) is GRANTED with leave to amend. 27 1 BACKGROUND 2 Blickenstaff’s dispute with Hayward police traces back to October or November of 2019, 3 when he was living in his 1989 Travelcraft Econoline 350 motor home (“the motor home”) parked 4 on private property in the city. See FAC [Dkt. No. 31] ¶¶ 3, 10. Blickenstaff had the property 5 owner’s permission to park there, but after a “dispute regarding their relationship,” the owner 6 withdrew that permission. Id. ¶¶ 10-11. According to the FAC, Hayward police officers 7 (including Morgan, Romero, and Clayton) tried to remove Blickenstaff and his motor home from 8 the property. Id. ¶ 11. But Blickenstaff and the property owner reached an agreement so that 9 Blickenstaff would leave on his own. Id. 10 The FAC alleges that “as a result of these interactions, and their failure to remove” 11 Blickenstaff from the property, Hayward police (including Morgan, Romero, and Clayton) 12 “formed an animus” against Blickenstaff and “hatched an intentional plan to remove [him] from 13 the city and/or destroy his ability to live in his motor home within the city’s limits.” Id. ¶ 12. As 14 part of this plan, the FAC alleges, the defendants “determined to forcibly and summarily seize 15 [Blickenstaff’s] motor home” without reasonable grounds to do so and without affording him due 16 process. See id. 17 The FAC further alleges that in September 2020, Romero received an email with photos of 18 Blickenstaff’s motor home among a group of about 15 vehicles parked along a private road in 19 Hayward. Id. ¶ 18. She allegedly recognized Blickenstaff’s motor home as the one she saw in 20 October 2019. Id. Then, “pursuant to the plan,” Romero and other officers allegedly “set out on a 21 number of steps . . . to permanently separate” Blickenstaff from his motor home. Id. 22 On September 28, Romero allegedly sent Blickenstaff a “notice to abate and vehicle 23 abatement report,” despite knowing that the motor home was neither abandoned nor inoperable. 24 Id. ¶ 19. The FAC further alleges that Romero mailed this to Blickenstaff’s prior address, either 25 knowing that he would not receive the notice or acting with deliberate indifference to whether he 26 actually would. Id. 27 The next day, Romero, Clayton, and Gonzalez went to the road where Blickenstaff’s motor 1 his motor home.” Id. ¶ 20. 2 At some point between September 29 and October 10, 2020, police placed a yellow sticker 3 on Blickenstaff’s motor home that referenced local and state ordinances regarding abandoned or 4 inoperable vehicles, but did not provide notice of other violations or infractions. Id. ¶ 21. 2 The 5 FAC alleges that police did this despite knowing that Blickenstaff lived in the motor home and 6 had moved it to the location, and that the vehicle “was not abandoned, wrecked, dismantled, or 7 inoperable.” See id. ¶¶ 21-22. The FAC alleges that the sticker did not state that Blickenstaff was 8 required to move the motor home, provide dates for any inspection or removal of the vehicle, or 9 inform him of any right to contest an abatement determination or request a hearing regarding the 10 motor home’s removal. Id. ¶ 21. Instead, the sticker stated that Blickenstaff could comply with 11 the abatement law by restoring the motor home to normal operating service and showing that it 12 was operable. Id. It also stated that an abatement notice would be sent in the mail, which 13 Blickenstaff alleges that he never received. Id. 14 On October 6, 2020, police returned to where Blickenstaff’s motor home was parked and 15 saw that it was still there, but again did not attempt to talk to Blickenstaff. Id. ¶ 24. About two 16 2 A court generally may not consider “any material beyond the pleadings” when deciding a Rule 17 12(b)(6) motion to dismiss without converting it into one for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cty. 18 of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) see also Fed. R. Civ. P. 12(d). Courts may, however, consider “documents incorporated into the complaint by reference, and matters of which 19 a court may take judicial notice” without so converting the motion. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). “Although mere mention of the existence of a 20 document is insufficient to incorporate the contents of a document, the document is incorporated when its contents are described and the document is integral to the complaint.” Tunac v. United 21 States, 897 F.3d 1197, 1207 n.8 (9th Cir. 2018) (citation and quotation marks omitted).
22 Blickenstaff attached two exhibits to his FAC: one purporting to be a copy of the sticker that was placed on his motor home, and another of a sign posted in the area after it was towed. See FAC ¶¶ 23 21, 28; FAC, Exs. A, B. I will consider the photo of the sticker, as it is incorporated into the FAC by reference. The second photo is not relevant to my evaluation of Blickenstaff’s claims. 24
The defendants request that I take notice of three exhibits: portions of the Hayward Municipal 25 Code, their own photo of the sticker purportedly placed on Blickenstaff’s motor home, and a copy of the notice to abate mailed to Blickenstaff. See RJN [Dkt. No. 34] Exs. 1-3. I will take notice of 26 the municipal code provisions and the copy of the notice, as the facts within can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. See Fed. R. 27 Evid. 201(b)(2). I will not, however, take notice of the photo of the sticker, given the 1 weeks later, on October 21, Romero, Morgan, Clayton, and Gonzalez “met to carry out the plan to 2 remove [Blickenstaff] from his motor home.” Id. ¶ 25. They contacted Jack James Tow Service, 3 Inc., and went to the road. Id. ¶ 26. Blickenstaff was there when police and the towing company 4 arrived. Id. 5 The FAC alleges that Blickenstaff “reasonably understood that, pursuant to the yellow 6 sticker, he had the right and ability to avoid the tow by demonstrating that the motor home was 7 operable.” Id. ¶ 27. He told officers that the vehicle was operable and that he was prepared to 8 show them that. See id. ¶ 27. He was also prepared to move the motor home elsewhere. Id. ¶ 30. 9 Police then allegedly told Blickenstaff that he was trespassing on private property. Id. ¶ 10 28. Blickenstaff contends that he had no prior notice of any trespassing allegations. Id. 11 Despite repeatedly telling police that the motor home was operable and that he could 12 demonstrate such, officers allegedly refused to allow Blickenstaff to do so. Id. ¶ 30. Instead, 13 Morgan said that the motor home would be towed and allegedly threatened Blickenstaff with 14 arrest if he did not move away from the vehicle. Id. Jack James then towed it away. Id. ¶ 32. 15 Later that day and the next, Blickenstaff called the Hayward Police Department multiple 16 times “in an attempt to have a hearing on the forcible tow and removal of the motor home.” Id. ¶ 17 34. Blickenstaff made similar phone calls until November 6, 2020, “to no avail.” Id. 18 On November 6, Blickenstaff spoke to Lieutenant Wagner of the Hayward Police 19 Department on the phone. Id. ¶ 38. Wagner allegedly told him that he had reviewed police 20 documents, and “that everything had been done legally.” Id. When Blickenstaff reiterated his 21 demand for a hearing, “Wagner declared that ‘this phone call’ is the hearing” and then, that 22 because the vehicle was abandoned, the vehicle code section allowing a post-tow hearing did not 23 apply. Id. Blickenstaff alleges that this “was part of the Hayward Police Department’s plan . . . to 24 declare contrary to clear evidence that [Blickenstaff’s] obviously occupied and continuously used 25 motor home was an ‘abandoned’ vehicle.” Id. 26 Despite efforts to locate his motor home and buy it back at a lien sale, Blickenstaff never 27 got the vehicle back. See id. ¶¶ 44-53. It is unclear from the FAC what ultimately happened to the 1 Blickenstaff alleges that Hayward and Jack James have a “long-standing contract whereby 2 the tow service will seize and remove any vehicle at the direction of the police, regardless of the 3 wishes or objections of the vehicle's owners,” then force its sale. Id. ¶ 13. He asserts that the 4 City’s ordinances allow police to take “arbitrary, capricious and excessive vehicle abatement 5 actions” and “wrongfully and summarily seize and convert vehicles . . . without probable cause, 6 without notice or opportunity for a meaningful hearing, and as an excessive fine or punishment.” 7 Id. ¶ 14. And, he contends, officers are not properly trained on when a vehicle is considered 8 inoperable or what notice is required. Id. ¶ 15. 9 Blickenstaff filed his initial complaint on December 22, 2021, which I dismissed upon 10 motion by the defendants for failure to state a claim but granted leave to amend. Dkt. Nos. 1, 30. 11 He then filed the FAC, which alleges seven claims: five violations of 42 U.S.C. § 1983, based on 12 violations of the Fourth, Eighth, and Fourteenth Amendments, and conspiracy to deprive him of 13 those constitutional rights; a violation of the Tom Bane Civil Rights Act; and conversion. See 14 generally FAC. The defendants again moved to dismiss. Dkt. No. 32.3 15 LEGAL STANDARD 16 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 17 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion, the 18 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 19 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff 20 pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for 21 the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There 22 must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts 23 do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to 24 “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555, 570. 25
26 3 After this motion was briefed and argued, Blickenstaff filed an administrative motion to reopen submission so that he could present a police report written by one of the defendants. See Dkt. No. 27 43. The motion is DENIED. Although evidence is not necessary to overcome a motion to 1 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 2 court accepts his allegations as true and draws all reasonable inferences in his favor. See Usher v. 3 City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to 4 accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or 5 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 6 If the court dismisses the complaint, it “should grant leave to amend even if no request to 7 amend the pleading was made, unless it determines that the pleading could not possibly be cured 8 by the allegation of other facts.” See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In 9 making this determination, the court should consider factors such as “the presence or absence of 10 undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous 11 amendments, undue prejudice to the opposing party and futility of the proposed amendment.” See 12 Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989). 13 DISCUSSION 14 I. SECTION 1983 CLAIMS 15 Section 1983 creates a cause of action for violations of the United States Constitution and 16 federal laws by officials acting under the color of law. 42 U.S.C. § 1983. It provides a “method 17 for vindicating federal rights elsewhere conferred” rather than a standalone source of substantive 18 rights. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Blickenstaff bases his section 1983 19 claims on alleged violations of the Fourth, Eighth, and Fourteenth Amendments, along with 20 conspiracy to deprive him of those constitutional rights. See FAC ¶¶ 59-88. 21 A. Fourth Amendment 22 The Fourth Amendment provides, in relevant part, that “[t]he right of the people to be 23 secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 24 shall not be violated.” U.S. Const. amend. IV. The Ninth Circuit has expressly held that “[t]he 25 impoundment of an automobile is a seizure within the meaning of the Fourth Amendment.” 26 Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005). 27 “A seizure conducted without a warrant is per se unreasonable under the Fourth 1 United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001) (citation and quotation marks 2 omitted). The government bears the burden of showing that one of those exceptions applies. Id. 3 It is undisputed that the defendants seized the motor home without a warrant. See FAC ¶ 4 61; see also Mot. to Dismiss (“MTD”) [Dkt. No. 33] 6:1-7:16. The defendants argue that the 5 seizure fell within two exceptions to the warrant requirement: the community caretaking and plain 6 view doctrines. See MTD at 6:1-7:16. 7 In exercising their community caretaking function, “police officers may impound vehicles 8 that jeopardize public safety and the efficient movement of vehicular traffic.” Miranda, 429 F.3d 9 at 864 (citation and quotation marks omitted). “Whether an impoundment is warranted under this 10 community caretaking doctrine depends on the location of the vehicle and the police officers’ duty 11 to prevent it from creating a hazard to other drivers or being a target for vandalism or theft.” Id. 12 Whether the doctrine applies “turns on the facts and circumstances of each case”; it “does not 13 categorically permit government officials to impound private property simply because state law 14 does.” Sandoval v. Cty. of Sonoma, 912 F.3d 509, 516 (9th Cir. 2018); see also Miranda, 429 15 F.3d at 864 (“the decision to impound pursuant to the authority of a city ordinance and state 16 statute does not, in and of itself, determine the reasonableness of the seizure”). 17 The defendants rely on the sticker placed on the motor home, which referenced section 4- 18 1.20 of the Hayward Municipal Code and section 22660 of the California Vehicle Code. Reply 19 [Dkt. No. 40] 1:17-2:4 (citing in part FAC ¶ 21). The municipal code section, which is authorized 20 by the vehicle code section, allows for the removal of “abandoned, wrecked, dismantled or 21 inoperative vehicles or parts thereof as public nuisances.” See Hayward Mun. Code. § 4-1.20; Cal. 22 Veh. Code § 22660. It further declares:
23 The accumulation and storage of abandoned, wrecked, dismantled, or inoperative 24 vehicles or parts thereof on private or public property not including highways is hereby found to create a condition tending to reduce the value of private property, 25 to promote blight and deterioration, to invite plundering, to create fire hazards, to constitute an attractive nuisance creating a hazard to the health and safety of 26 minors, to create a harborage for rodents and insects and to be injurious to the health, safety and general welfare. 27 1 their conduct “squarely falls within the community caretaking function in determining that 2 [Blickenstaff’s] abandoned/inoperable vehicle, as a public nuisance, needed to be removed.” 3 Reply at 2:5-7. 4 In response, Blickenstaff argues that the FAC alleges only that police removed his motor 5 home from a private road under the abandoned vehicle abatement program. Oppo. [Dkt. No. 39] 6 8:6-25. According to Blickenstaff, under Miranda “such removals are not taken pursuant to 7 [the] community caretaking function, and courts readily reject reliance on the doctrine in actions 8 challenging permanent warrantless seizures of abated vehicles.” Id. at 8:9-25 (citing cases). His 9 argument ignores the language on the sticker. 10 The cases that Blickenstaff cites are also factually distinguishable. Fitzpatrick v. City of 11 Los Angeles, No. CV-21-6841, 2022 WL 1421319, at *1-5 (C.D. Cal. Jan. 20, 2022), involved 12 the towing of a legally parked car on the basis of unpaid parking tickets. In Sandoval v. County 13 of Sonoma, 72 F. Supp. 3d 997, 1000 (N.D. Cal. 2014), police acted under a California Vehicle 14 Code section allowing the impoundment of the vehicle of a driver who had never been issued a 15 driver’s license. In VienPhuong Ti Ho v. City of Long Beach, No. 19-CV-09430, 2020 WL 16 8617674, at *18 (C.D. Cal. Nov. 10, 2020), the defendants argued that police towed the 17 plaintiff’s vehicle from a neighbor’s private driveway because it was trespassing on private 18 property, but the court stated that it was unclear whether the neighbors lawfully owned or 19 possessed the property so as to have a legal right to tow the plaintiff’s vehicle from it. In Spitzer 20 v. Aljoe, No. 13-CV-05442-MEJ, 2014 WL 1154165, at *4 (N.D. Cal. Mar. 20, 2014), the 21 plaintiff alleged that he “never received notice that his truck was subject to an order of 22 abatement” before it was towed from in front of his property. And in United States v. Biddle, 23 No. C-09-01159-MHP, 2010 WL 11530869, *7 (N.D. Cal. July 8, 2010), aff’d in part, rev’d in 24 part, and remanded on other grounds by United States v. Biddle, 467 Fed. App’x 693 (9th Cir. 25 2012), the court did not reach a decision on whether the community caretaking doctrine applied 26 because the evidence showed that officers towed the car “because they determined it had been 27 abandoned” and not to secure it or protect the public from an unsafe vehicle. Police found the 1 a door open, and music playing. Id. at *1. Although a dozen people stood nearby, and police 2 determined the vehicle’s owner through a records check, they ultimately deemed the vehicle 3 abandoned and had it towed. See id. at *1-3. 4 The key distinction between these cases and the one at hand is the Hayward Municipal 5 Code provision cited on the sticker placed on Blickenstaff’s motor home. As alleged in the 6 FAC, the sticker referenced section 4-1.20 of the Hayward Municipal Code. FAC ¶ 21. The 7 language of that section connects the removal of “abandoned, wrecked, dismantled or 8 inoperative vehicles” to public safety, stating in part that such vehicles “create a condition 9 tending to” invite plundering,” “create fire hazards,” “constitute . . . a hazard to the health and 10 safety of minors,” and are “injurious to the health, safety, and general welfare.” See Hayward 11 Mun. Code. § 4-1.20. The sticker places the seizure within the context of the community 12 caretaking function rather than just an abandoned vehicle abatement program. See Miranda, 429 13 F.3d at 864. 14 To be sure, the sticker alone does not establish that the community caretaking doctrine 15 applies, but other allegations support it. Although the motor home was parked on a private road, it 16 is plausible that the efficient movement of vehicular traffic on that road could be impeded by the 17 presence of the motor home and more than a dozen other vehicles parked there. See FAC ¶ 20. 18 Police were notified of Blickenstaff’s vehicle in September 2020, via the photos allegedly sent 19 to Romero, and went to the road on September 29. Id. ¶¶ 18, 20. When they returned a week 20 later, it was still there. Id. ¶ 24. Although the FAC alleges that the officers did not attempt to 21 contact Blickenstaff during these visits, it does not allege that Blickenstaff was at the motor 22 home or nearby either time. See id. ¶¶ 20, 24. By the time police towed the motor home on 23 October 21, they had seen it parked on the road for more than three weeks. See id. ¶ 26. At that 24 point, a year had passed since their prior interaction with Blickenstaff. See id. ¶ 10. Given these 25 facts, it is not plausible that , a year after the initial encounter with Blickenstaff, the police 26 should have known that his motor home was still operable, and that after seeing the vehicle 27 parked on the road for three weeks, they should have known it was not abandoned. 1 argument that it was abandoned and, as a public nuisance, posed a threat to public safety for any 2 of the reasons cited in the municipal code provision. Even if the motor home did not pose any 3 threat to physical safety, it could become a “target for vandalism or theft.” See Miranda, 429 4 F.3d at 864. The motor home’s alleged location also suggests that it posed a hazard to other 5 drivers. Id. These facts, and use of the sticker, establish a prima facie case for the applicability 6 of the community caretaking doctrine, meaning it was not unlawful under the Fourth 7 Amendment. Blickenstaff may be aware of additional facts that would cast doubt on that 8 conclusion; if he is, he should allege them in an amended complaint. For now, the section 1983 9 claim based on the Fourth Amendment is DISMISSED.4 10 B. Eighth Amendment 11 Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines 12 imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. 13 In describing the “permanent taking” of Blickenstaff’s motor home as “an excessive 14 punishment or fine,” it appears that the FAC invokes the Excessive Fines Clause, which “limits 15 the government’s power to extract payments, whether in cash or in kind, as punishment for some 16 offense.” Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (citations and quotation marks omitted); 17 see also FAC ¶ 82. The Supreme Court has held that a fine is unconstitutionally excessive if its 18 amount is “grossly disproportional to the gravity of a defendant’s offense.” See United States v. 19 Bajakajian, 524 U.S. 321, 334 (1998). The Ninth Circuit recently held that this applies to 20 municipal fines, and that Timbs—which incorporated the Excessive Fines Clause to the states 21 through the Fourteenth Amendment— “affirmatively opens the door for Eighth Amendment 22 challenges to fines imposed by state and local authorities.” Pimentel v. City of Los Angeles, 974 23 F.3d 917, 922 (9th Cir. 2020) (citing Timbs, 139 S. Ct. at 686-87). 24 In Pimentel, the court held that the Ninth Circuit’s four-factor test for determining whether 25
26 4 Because I am dismissing the Fourth Amendment claim under the community caretaking doctrine, I need not decide the parties’ arguments about the plain view or open fields doctrines. Nor will I 27 address the potential applicability of qualified immunity for the officers’ conduct. If Blickenstaff 1 a fine is “grossly disproportional to the underlying offense” applies to municipal fines as well. See 2 974 F.3d at 921-22. Those factors are: “(1) the nature and extent of the underlying offense; (2) 3 whether the underlying offense related to other illegal activities; (3) whether other penalties may 4 be imposed for the offense; and (4) the extent of the harm caused by the offense.” Id. at 921 5 (citations omitted). 6 The defendants primarily argue that Blickenstaff’s Eighth Amendment claim fails because 7 they are “unaware of any legal authority that render [California Vehicle Code] sections 22660 and 8 22669, or local codes that are enacted pursuant to these sections, as being unconstitutional under 9 the Eighth Amendment.” MTD at 7:27-8:3. They also attempt to distinguish Pimental, Timbs, 10 and another case that Blickenstaff relies upon, arguing that none involved “a vehicle that is 11 declared abandoned/inoperable pursuant to state and local laws with both pre- and post-tow due 12 process provided.” See id. at 7:18-26. 13 The defendants’ one-sentence attempt to distinguish these cases is not helpful in analyzing 14 Blickenstaff’s Eighth Amendment claim, nor is their argument that because the relevant state and 15 local statutes have not been declared unconstitutional, his claim “must fail.” See id. at 8:3. 16 Unconstitutional laws remain on the books until a court declares them so. The defendants do not 17 point to any case law that affirms that those statutes are indeed constitutional. By their own logic, 18 the absence of any such authority supports a finding that the statutes are unconstitutional. 19 Blickenstaff’s response is not particularly helpful, either. The opposition points to 20 Paragraph 83 of the FAC, which states that “[u]nder clearly established legal norms related to the 21 Eighth Amendment, defendants are liable under 42 U.S.C. § 1983 for imposing a fine or 22 punishment on plaintiff for alleged illegal parking and trespass in the form of seizure, removal, 23 and disposition of plaintiff’s home.” Oppo. at 17:1-4 (citing FAC ¶ 83). But neither the FAC nor 24 the opposition identifies that authority. See Oppo. at 17:1-4; FAC ¶ 83. At most, Blickenstaff 25 cites Timbs and Pimental for the proposition that the Excessive Fines Clause applies to municipal 26 parking fines. See id. at 16:2-18. But the other cases he relies upon deal with the seizure of 27 vehicles under the Fourth or Fourteenth Amendments, not the Eighth. See id. at 17:1-19 (citing 1 Notably, neither side points me to any case law addressing: (1) whether the impoundment 2 of a vehicle constitutes a punishment falling within the Excessive Fines Clause; (2) if so, whether 3 the impoundment of Blickenstaff’s vehicle was excessive; or (3) whether seizure of vehicle that 4 also serves as someone’s home impacts the analysis. See Wright v. Riveland, 219 F.3d 905, 915 5 (9th Cir. 2000) (“Two questions are pertinent when determining whether the Excessive Fines 6 Clause has been violated: (1) Is the statutory provision a fine, i.e., does it impose punishment? and 7 (2) If so, is the fine excessive?”) (citation omitted). Timbs arose from the attempted seizure of a 8 vehicle in the context of civil forfeiture, but the parties do not cite to any cases similar to the facts 9 at hand. See 139 S. Ct. at 686. Nor does the FAC appear to allege that these defendants assessed 10 any fines related to the impoundment; it only mentions fines imposed by Jack James. See id. ¶ 46. 11 And, even assuming that the impoundment of the motor home was covered by the Excessive Fines 12 Clause, neither side meaningfully engages with the four-factor test articulated in Pimentel. 13 It is unclear to me whether the facts alleged state an Eighth Amendment claim because of 14 the lack of briefing on this issue; accordingly, I dismiss it without prejudice to Blickenstaff to 15 establish, either with more facts or additional briefing, that his claim is plausible. 16 C. Fourteenth Amendment 17 The Due Process Clause of the Fourteenth Amendment prohibits the state from depriving 18 “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. A 19 plaintiff asserting a section 1983 claim based on procedural due process must show: “(1) a liberty 20 or property interest protected by the Constitution; (2) a deprivation of the interest by the 21 government; [and] (3) lack of process.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th 22 Cir. 1993). “An elementary and fundamental requirement of due process . . . is notice reasonably 23 calculated, under all the circumstances, to apprise interested parties of the pendency of the action 24 and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. 25 Co., 339 U.S. 306, 314 (1950). 26 Blickenstaff asserts two section 1983 claims under the Fourteenth Amendment. He asserts 27 that his due process rights were violated when police failed to give him notice before towing his 1 Beginning with the pre-seizure claim, I previously held that Blickenstaff had failed to state 2 a claim because “it appears that Blickenstaff was provided reasonable notice of the impending tow 3 and afforded the opportunity to present his objections—he just did not act upon it.” See Order 4 Granting Mot. to Dismiss (“First MTD Order”) [Dkt. No. 30] 8:4-6. The sticker allegedly placed 5 on his motor home was a “critical detail”; it “stated that the vehicle had been declared to be 6 abandoned, wrecked, dismantled, or inoperable,” that one of three abatement methods must be 7 completed or else it would be “removed,” and it was placed on the vehicle in which police 8 allegedly knew Blickenstaff lived anywhere from 11 days to three weeks before it was removed. 9 See id. at 7:9-8:6 (citations omitted). And, I held, the Hayward Municipal Code provided 10 Blickenstaff the ability to contest whether the motor home was in fact abandoned or inoperable. 11 Id. at 7:21-23.5 According to the defendants, the same allegations again sink Blickenstaff’s claim 12 and the FAC “simply does not present facts that should change” my earlier conclusion. MTD at 13 4:2-5:1. 14 In response, Blickenstaff makes much of the allegation that he did not receive the mailed 15 abatement notice and that the defendants did not send it by registered or certified mail, as required 16 by the municipal code. See Oppo. at 10:21-11:15.6 He also asserts that the sticker itself was 17 insufficient, as it “did not notify [him] of any right to a hearing to contest the abatement . . . that 18 his vehicle must be moved, that an inspection or reinspection was going to be held, or that the City 19 would tow the vehicle within a certain time period.” Id. at 11:16-22 (citing FAC ¶ 21). Instead, 20 he argues that he “reasonably believed on the basis of the sticker that he could avoid the removal 21 by showing the police officers at the time of the inspection or reinspection that the motor home 22
23 5 My previous Order details the provisions within the Hayward Municipal Code that grant city officials “the authority to cause the abatement and removal” of an “abandoned, wrecked, 24 dismantled, or inoperable vehicle,” the notice and hearing opportunity that must be provided to the vehicle’s owner before a vehicle is removed, and the appeals process. See First MTD Order at 25 6:17-2. I incorporate the description of those provisions, which were part of the defendants’ request for judicial notice, by reference here. See RJN, Ex. B. 26
6 Even accepting as true Blickenstaff’s allegation that the defendants did not send the notice by 27 registered or certified mail, that does not change the outcome of my analysis, as Blickenstaff does 1 was operable.” Id. at 11:26-28 (same). 2 Blickenstaff again overlooks critical details. The FAC states that the sticker was placed on 3 his motor home, where the defendants knew Blickenstaff lived. See FAC ¶¶ 21, 26. The sticker 4 cited two provisions (Hayward Municipal Code section 4-1.20 and California Vehicle Code 5 section 22660) “concerning abandoned or inoperable vehicles.” Id. ¶ 21. And it “informed 6 Blickenstaff that he could comply with the abatement law by restoring the vehicle to normal 7 operating service and demonstrating it to be operable.” Id. 8 The photo of the sticker attached to the FAC further shows that Blickenstaff had 9 reasonable notice that the motor home would be removed.7 It states that “[t]o comply with the 10 law, this vehicle must either be: (1) removed to a licensed dismantler or wrecking yard, or (2) 11 completely enclosed within a garage or building, or (3) restored to normal operating service and 12 demonstrated to be operable.” See id., Ex. A. It expressly warns that one of those methods “must 13 be completed or the City of Hayward will have the vehicle removed, in which case the vehicle 14 may not again be registered or made inoperable.” Id. It states that an abatement notice will follow 15 by mail. Id. And it provides a phone number to call for additional information. Id. 16 As alleged in the FAC, Blickenstaff had ample notice that his vehicle had been declared 17 inoperable or abandoned, and of the steps that he could take to comply with the law. He also had 18 notice that the motor home would be removed if those steps were not taken. If he had questions 19 about the relevant law or processes available to him, there was a phone number that he could call 20 for additional information. This information was articulated on the sticker placed on the vehicle in 21 which the defendants allegedly knew that Blickenstaff lived. Moreover, because the sticker was 22 placed on his motor home “[a]t some point between and including September 29, 2020 and 23 October 10, 2020,” and the vehicle not towed until October 21, Blickenstaff again had anywhere 24 25 7 Although both Blickenstaff and the defendants have proffered photos of the sticker (Blickenstaff as Exhibit A to the FAC, the defendants as Exhibit 2 in their Request for Judicial Notice), the 26 stickers in each photo are different. The sticker in Blickenstaff’s photo has no writing on it, while the sticker in the defendants’ photo does. Compare FAC, Ex. A with RJN, Ex. 2. And both 27 photos are so closely cropped, it is difficult to tell what vehicle they were actually placed on. See 1 from 11 days to three weeks to act. See FAC ¶¶ 21, 25-26. As alleged, Blickenstaff was provided 2 reasonable notice of the action and an opportunity to object. See Mullane, 339 U.S. at 314. He 3 just did not do so. Accordingly, his pre-seizure Fourteenth Amendment claim is DISMISSED. 4 Nor has Blickenstaff adequately alleged that the defendants violated his Fourteenth 5 Amendment rights to a post-seizure hearing. After the Ninth Circuit held that due process requires 6 a prompt post-tow hearing, section 22852 of the California Vehicle Code was enacted. See 7 Scofield v. City of Hillsborough, 862 F.2d 759, 764 n.3 (9th Cir. 1988). Section 22852 requires 8 that whenever a public agency or member of such directs the storage of a vehicle, it “shall provide 9 the vehicle’s registered and legal owners of record, or their agents, with the opportunity for a 10 poststorage hearing to determine the validity of the storage.” Cal. Veh. Code § 22852(a). 11 As the defendants note, there are two relevant exceptions: sections 22852(f) and (g). See 12 MTD at 5:3-27. Section 22852(f) exempts “vehicles abated under the Abandoned Vehicle 13 Abatement Program pursuant to sections 22660 to 22668, inclusive”; section 22852(g) exempts 14 “abandoned vehicles removed pursuant to section 22669 that are determined by the public agency 15 to have an estimated value of five hundred dollars ($500) or less.” Cal. Veh. Code § 22852(f), (g). 16 The issue with Blickenstaff’s previous iteration of this claim was that the complaint was 17 “void of any allegations regarding the vehicle’s monetary value.” See First MTD Order at 8:7-13. 18 The FAC alleges that section 22852(g) “does not apply” in part because “the value of the vehicle 19 was not, and could not be, estimated to be below $500.” FAC ¶ 75. Similarly, it alleges that “it 20 was obvious to the police officers and the Police Department that the vehicle was valued 21 substantially in excess of $500.” Id. ¶ 23. But the FAC provides no factual allegations supporting 22 these statements, which are too conclusory on their own to establish the motor home’s value. 23 Moreover, the yellow sticker placed on Blickenstaff’s motor home referenced California 24 Vehicle Code section 22660 “concerning abandoned or inoperable vehicles.” See FAC ¶ 21. As 25 alleged, the vehicle was removed under this section, meaning a post-tow hearing would not be 26 required under section 22852(f), which states that section 22852’s post-seizure hearing 27 requirement “does not apply to vehicles abated under the Abandoned Vehicle Abatement Program 1 allegation in the FAC and plain language of section 22852(f) belie Blickenstaff’s argument that a 2 post-seizure hearing was required. Blickenstaff does not address the defendants’ arguments about 3 section 22852(f) in his opposition. See generally Oppo. 4 Blickenstaff has not adequately alleged that a post-tow hearing was required, as the FAC 5 makes only conclusory allegations about the motor home’s value (to avoid section 22852(g)) and 6 alleges that it was removed pursuant to section 22660 (bringing it within section 22852(f)). His 7 post-seizure Fourteenth Amendment claim is thus DISMISSED. 8 II. REMAINING CLAIMS 9 Blickenstaff’s conspiracy, Bane Act, and Monell liability claims necessarily fail: each 10 requires a constitutional violation, which the FAC does not sufficiently allege for the reasons 11 stated above. See Inman v. Anderson, 294 F. Supp. 3d 907, 926-27 (N.D. Cal. 2018) (stating that a 12 plaintiff asserting a conspiracy claim under section 1983 must show a constitutional deprivation); 13 Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (noting that a Bane Act claim 14 requires a finding of a constitutional violation); Lockett v. Cty. of Los Angeles, 977 F.3d 737, 741 15 (9th Cir. 2020) (stating that Monell claims are “contingent on a violation of constitutional rights”) 16 (citing Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994)). 17 The conversion claim again falls short. “Conversion is the wrongful exercise of dominion 18 over the property of another.” Farmers Ins. Exch. v. Zerin, 53 Cal. App. 4th 445, 451 (1997) 19 (citation omitted). The elements of a conversion claim are: (1) “the plaintiff’s ownership or right 20 to possession of the property at the time of the conversion”; (2) “the defendant’s conversion by a 21 wrongful act or disposition of property rights”; (3) and damages. Id. (same). The FAC does not 22 sufficiently allege that the defendants took Blickenstaff’s motor home by a wrongful act; instead, 23 it appears that they followed the law in doing so. 24 CONCLUSION 25 The defendants’ motion to dismiss is GRANTED with leave to amend. Any amended 26 27 1 complaint is due no later than February 10, 2023. 2 IT IS SO ORDERED. 3 Dated: January 13, 2023
5 ® William H. Orrick 6 United States District Judge 7 8 9 10 11 12
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