Sage v. County of Monterey

Opinion

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 SHASHA SAGE, Case No. 5:22-cv-07083-BLF

6 Plaintiff, ORDER GRANTING IN PART AND 7 v. DENYING IN PART COUNTY DEFENDANTS’ MOTION TO DISMISS 8 COUNTY OF MONTEREY, et al., PLAINTIFF’S FIRST AMENDED COMPLAINT, AND GRANTING 9 Defendants. DEFENDANT ONE STARFISH’S MOTION TO DISMISS FIRST 10 AMENDED COMPLAINT 11 [Re: ECF Nos. 91, 94]

12 13 Before the Court are two motions to dismiss Plaintiff’s First Amended Complaint. 14 Defendants County of Monterey, Matthew Mendoza, Scott Davis, Angel Estrada, and Matthew 15 Perez (collectively, “County Defendants”) filed one of the motions. ECF No. 91 (“County Mot.”). 16 The second was filed by Defendant One Starfish, Inc. ECF No. 94 (“Starfish Mot.”). Plaintiff 17 Shasha Sage, proceeding pro se, opposes both motions. ECF Nos. 96, 97. Both the County 18 Defendants (ECF No. 99) and One Starfish (ECF No. 98) filed replies in support of their 19 respective motions. The Court finds the motions suitable for disposition without oral argument, 20 and hereby VACATES the hearing set for January 9, 2025. See Civ. L.R. 7-1(b). For the 21 following reasons, the Court GRANTS IN PART AND DENIES IN PART the County 22 Defendants’ motion to dismiss and GRANTS One Starfish’s motion to dismiss. 23 I. BACKGROUND 24 A. Factual Background 25 For purposes of this motion, the Court takes as true the following facts alleged in 26 Plaintiff’s First Amended Complaint. ECF No. 90 (“FAC”). 27 Plaintiff Shasha Sage (“Sage”) was a “registered member of the One Starfish Safe Parking 1 in Marina, California. FAC ¶ 17. The operator of the program permitted Sage to “park her RV in 2 the lot permanently, including overnight[],” and Sage had been parking in her designated space for 3 two and a half years as of November 12, 2021. Id. On that date, however, Sage was evicted from 4 the parking lot by the Monterey County Sheriff’s Department and denied access to her RV. Id. 5 ¶ 18. She had not previously received an eviction notice. Id. ¶ 18. 6 During the eviction process, Sage attempted to access her living space and allegedly ran 7 over a police officer’s foot with her walker as she tried to enter the RV. Id. She was arrested for 8 battery and for resisting a police officer. Id. The officers arresting her seized and subdued her, 9 causing her bodily injuries including head trauma and laceration and injuries to her wrist and arms. 10 Id. ¶¶ 19–20. In addition, her RV and her trailer were towed, and Sage was unable to recover the 11 trailer. Id. ¶ 21. She was likewise unable to recover personal items including bicycles, pots, pans, 12 jewelry, a tow bar, and eighteen 55-gallon drums, each of which contained clothing and other 13 living articles. Id. Finally, Sage had stored in excess of $20,000 in cash in her RV, all of which 14 was missing when she recovered her RV after it was towed. Id. ¶ 22. 15 B. Procedural Background 16 Plaintiff filed her initial Complaint in this case on November 10, 2022. ECF No. 1. After 17 answering the Complaint in March 2023, ECF No. 18, Defendants County of Monterey, Scott 18 Davis, Angel Estrada, Matthew Mendoza, and Matthew Perez filed a Motion for Summary 19 Judgment on October 6, 2023, ECF No. 32. The Court issued its order on the Motion for 20 Summary Judgment on June 10, 2024, granting summary judgment in favor of the County 21 Defendants on Claim 1 to the extent it raised a claim for false arrest in violation of the Fourth 22 Amendment, Claim 4 (state-created danger in violation of the Fourteenth Amendment), Claim 5 23 (violation of the Bane Act), Claim 6 (Monell liability), Claim 9 (false arrest), and Claim 11 24 (wrongful eviction) to the extent that it raised a claim under the Recreational Vehicle Occupancy 25 Law. ECF No. 82 (“MSJ Order”). 26 Meanwhile, Defendant One Starfish, Inc. filed a motion to dismiss Count 11 of Plaintiff’s 27 initial Complaint. ECF No. 60. The Court granted the motion to dismiss on May 28, 2024, 1 entry theories with leave to amend. ECF No. 80. Plaintiff’s Recreational Vehicle Park Occupancy 2 Law, California Civil Code § 1946.2, and California Civil Procedure Code § 1162 theories were 3 dismissed without leave to amend. Id. at 10–11. 4 Plaintiff filed her First Amended Complaint on August 5, 2024. ECF No. 90. The FAC 5 alleges twelve causes of action: (1) a claim for unreasonable seizure in violation of the Fourth 6 Amendment and Article I, § 13 of the California Constitution against the County Defendants, FAC 7 ¶¶ 23–27; (2) a claim of excessive force in violation of Fourth Amendment and Article I, § 13 of 8 the California Constitution against the County Defendants, FAC ¶¶ 28–38; (3) a claim of violation 9 of her due process rights under the Fourteenth Amendment and Article I, § 7 of the California 10 Constitution against the County Defendants, FAC ¶¶ 39–45; (4) a claim of state-created danger in 11 violation of the Fourteenth Amendment against the County Defendants, FAC ¶¶ 46–47; (5) a 12 claim under California Civil Code § 52.1 against the County Defendants, FAC ¶¶ 48–50; (6) a 13 withdrawn claim for county liability under 42 U.S.C. § 1983 and Article I, § 13 of the California 14 Constitution, FAC ¶ 51; (7) a claim under California Civil Code § 2080 against the County 15 Defendants, FAC ¶¶ 52–53; (8) a claim for conversion against the County Defendants, FAC 16 ¶¶ 54–59; (9) a claim for false arrest against the County Defendants, FAC ¶¶ 60–63; (10) a claim 17 for battery against the County Defendants, FAC ¶¶ 64–67; (11) a claim of wrongful eviction 18 against the County of Monterey and One Starfish, FAC ¶¶ 68–77; and (12) a claim for injunctive 19 relief, FAC ¶¶ 78–87. 20 The County Defendants filed a Motion to Dismiss, in whole or in part, all claims in the 21 First Amended Complaint other than the wrongful eviction claim. ECF No. 91. One Starfish, Inc. 22 filed its own Motion to Dismiss, seeking dismissal of the wrongful eviction claim. ECF No. 94. 23 II. LEGAL STANDARD 24 “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however 25 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 26 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted) (quoting Estelle v. 27 Gamble, 429 U.S. 97, 106 (1976)). 1 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 2 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 3 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 4 as true all well-pled factual allegations and construes them in the light most favorable to the 5 plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the 6 Court need not “accept as true allegations that contradict matters properly subject to judicial 7 notice” or “allegations that are merely conclusory, unwarranted deductions of fact, or 8 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 9 While a complaint need not contain detailed factual allegations, it “must contain sufficient factual 10 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 11 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 12 claim is facially plausible when it “allows the court to draw the reasonable inference that the 13 defendant is liable for the misconduct alleged.” Id. 14 In deciding whether to grant leave to amend, the Court must consider the factors set forth 15 by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the 16 Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003). A district 17 court ordinarily must grant leave to amend unless one or more of the Foman factors is present: 18 (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by 19 amendment, (4) undue prejudice to the opposing party, or (5) futility of amendment. Eminence 20 Capital, 316 F.3d at 1051–52. “[I]t is the consideration of prejudice to the opposing party that 21 carries the greatest weight.” Id. at 1052. However, a strong showing with respect to one of the 22 other factors may warrant denial of leave to amend. Id. 23 III. DISCUSSION 24 A. Counts IV, V, and IX: Res Judicata 25 “The doctrine of res judicata provides that ‘a final judgment on the merits bars further 26 claims by parties or their privies based on the same cause of action.’” Tahoe-Sierra Pres. Council, 27 Inc. v. Tahoe Reg’l Plan. Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (quoting In re Schimmels, 1 claims, (2) a final judgment on the merits, and (3) privity between parties.” Id. (quoting 2 Stratosphere Litig. LLC v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n.3 (9th Cir. 2002)). 3 The Court previously granted summary judgment in favor of the County Defendants on a 4 number of claims pled in the First Amended Complaint. The County Defendants argue that res 5 judicata—or claim preclusion—applies to three of the causes of action in Plaintiff’s First 6 Amended Complaint: the claim of state-created danger against the County Defendants (Count IV), 7 the Bane Act claim against the County Defendants (Count V), and the false arrest claim against 8 the County Defendants (Count IX). County Mot. at 4–5. Defendants are correct that all three 9 causes of action are identical in name and supporting allegations between Plaintiff’s initial and 10 amended complaints. Compare Compl. ¶¶ 46–47 (state-created danger), ¶¶ 48–50 (Bane Act), 11 and ¶¶ 65–68 (false arrest), with FAC ¶¶ 46–47 (state-created danger), ¶¶ 48–50 (Bane Act), and 12 ¶¶ 60–63 (false arrest). Summary judgment is a “final judgment on the merits” for purposes of the 13 claim preclusion rule, Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987–88 (9th Cir. 2005), 14 and this Court granted summary judgment in favor of the County Defendants on Counts IV, V and 15 IX of the initial Complaint on June 10, 2024, ECF No. 82 at 29–30. Finally, the parties on all 16 three claims are “identical,” so the existence of privity is “quite obvious[].” See Tahoe-Sierra 17 Pres. Council, 322 F.3d at 1081. 18 Therefore, since all three elements of the claim preclusion rule are satisfied, Plaintiff is 19 barred from re-asserting Counts IV, V and IX in the First Amended Complaint. Plaintiff does not 20 dispute that these three causes of action are precluded. See ECF No. 96 at 1, 3. Counts IV, V and 21 IX of the First Amended Complaint are DISMISSED WITHOUT LEAVE TO AMEND. 22 B. Count I: Unreasonable Seizure 23 Count I of Plaintiff’s First Amended Complaint includes two theories of unreasonable 24 seizure: First, Plaintiff alleges that the County Defendants violated her Fourth Amendment rights 25 to be free from unreasonable seizure of her property. FAC ¶ 24. Second, Plaintiff alleges that the 26 County Defendants violated her right to be free from false arrest. Id. ¶ 25. The County 27 Defendants’ motion to dismiss does not address Plaintiff’s unreasonable seizure of property 1 Monterey. See County Mot. at 7; infra section III.C. 2 This Court previously granted summary judgment to the County Defendants on Plaintiff’s 3 claim for false arrest in violation of the Fourth Amendment. MSJ Order at 12. But the Court 4 denied summary judgment with respect to the false arrest claim based on the California 5 Constitution, because Defendants failed to identify the essential elements or provide argument on 6 that theory. Id. at 9–10, 12. The Court also denied summary judgment to the County Defendants 7 on Plaintiff’s Fourth Amendment claim based on unreasonable seizure of her property. Id. at 20. 8 Now, the County Defendants argue in favor of dismissal of Plaintiff’s false arrest claim 9 based on the California Constitution. The County Defendants say that the elements of false arrest 10 under the California Constitution are coextensive with those under the common law: “(1) the 11 nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an 12 appreciable period of time, however brief.” Tekle v. United States, 511 F.3d 839, 854 (9th Cir. 13 2007) (quoting Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496 (2000)). Since “probable 14 cause to believe that a person has committed any crime will preclude a false arrest claim, even if 15 the person was arrested on additional or different charges for which there was no probable cause,” 16 Ewing v. City of Stockton, 588 F.3d 1218, 1230 n.19 (9th Cir. 2009) (quoting Holmes v. Village of 17 Hoffman Est., 511 F.3d 673, 682 (7th Cir. 2007)), Defendants argue that the allegations in 18 Plaintiff’s FAC regarding resisting arrest and running her walker over an officer’s foot 19 demonstrate that a false arrest claim is precluded. See Cal. Penal Code § 847(b)(1) (indicating 20 officer is not liable for false arrest if he had “reasonable cause to believe the arrest was lawful”). 21 In her opposition brief, Plaintiff waives her false arrest claim based on the California 22 Constitution, concurring that the same factual allegations precluding the federal false arrest claim 23 under Count I likewise bar the claim based on the California Constitution. See ECF No. 96 at 3–4. 24 Plaintiff’s theory of false arrest under the California Constitution in Count I of the First Amended 25 Complaint is therefore DISMISSED WITHOUT LEAVE TO AMEND. 26 C. Counts I, II, and III: The County’s Monell Liability on Plaintiff’s Unreasonable Seizure, Excessive Force, and Due Process Claims 27 1 must show that “the action that is alleged to be unconstitutional implements or executes a policy 2 statement, ordinance, regulation, or decision officially adopted and promulgated by” the officers 3 of the entity, or that the deprivation occurred pursuant to a widespread “custom” practiced by the 4 entity. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690–91 (1978). The 5 County argues that Plaintiff’s FAC “fails to allege . . . any specific official policy, ordinance, 6 regulation, or decision” leading to the section 1983 violations asserted in Counts I, II, and III 7 beyond the “bare assertion” that the violations occurred “pursuant to the policies, practices and 8 customs of the CITY.” County Mot. at 7. This conclusory statement, the County says, is 9 insufficient to survive a motion to dismiss. Id. In response, Plaintiff argues that the County has 10 waived its arguments for dismissal of these counts by failing to address (1) the facts the Court 11 found in denying summary judgment on these causes of action, and (2) the allegations in the FAC 12 that Defendants failed to give Plaintiff notice of the impending seizure and failed to properly 13 preserve her property after it was seized. ECF No. 96 at 4–5. 14 The Court agrees that Plaintiff’s FAC has failed to provide sufficient facts to plausibly 15 allege Monell liability as to the County. Plaintiff cites Winslow v. City of Oakland, No. 20-CV- 16 01510, 2020 WL 1031759 (N.D. Cal. Mar. 3, 2020), and Lavan v. City of Los Angeles, 693 F.3d 17 1022 (9th Cir. 2012), in support of the proposition that seizure and destruction of personal 18 property by a local entity that fails to give notice and properly preserve the property can subject 19 the entity to constitutional liability. ECF No. 96 at 5. On that point, Plaintiff is correct. At the 20 same time, though, Plaintiff’s cases support the County’s argument regarding the insufficiency of 21 Plaintiff’s FAC. In both Winslow and Lavan, the facts alleged suggested that the local entity in 22 question had a policy or practice of taking such action with respect to seized property. 23 Specifically, the Winslow plaintiffs alleged that the city defendant “repeatedly failed to comply 24 with its own policies during previous evictions,” evincing a potential custom or practice of 25 unconstitutional seizure and destruction of property. 2020 WL 1031759, at *4. And in Lavan, the 26 underlying district court order reveals that the city in question admitted that it had “a practice of 27 on-the-spot destruction of seized property” belonging to homeless persons. Lavan v. City of Los 1 support Monell liability, because Plaintiff does not allege specific facts indicating that the County 2 of Monterey has a policy or a widespread or longstanding practice of seizing and destroying 3 personal property without proper notice or preservation. She alleges only the single instance 4 giving rise to her lawsuit, and that is not enough. See FAC ¶¶ 39–45. The County is correct that, 5 without more, Plaintiff’s single allegation that “[e]mployees of the COUNTY have engaged in the 6 acts complained of herein pursuant to the policies, practices and customs of the CITY” is too 7 speculative and conclusory to survive a motion to dismiss. See id. ¶ 8. 8 Plaintiff’s brief in opposition to the County Defendants’ motion does not directly address 9 how the Monell issue impacts Plaintiff’s claim of excessive force against the County. See ECF 10 No. 96 at 4–5. However, the same flaw infects Count II as Counts I and III insofar as that cause of 11 action is asserted against the County of Monterey: because Plaintiff fails to allege any concrete 12 facts supporting a policy, practice, or custom of using excessive force, her FAC fails to adequately 13 allege a viable claim against the County. This is why the Court previously granted summary 14 judgment in favor of the County on Claim 6 of the initial Complaint, see MSJ Order at 26–27, 15 leading Plaintiff to withdraw Claim 6 in her First Amended Complaint, see FAC ¶ 51. 16 Finally, Plaintiff’s waiver argument is unpersuasive. See ECF No. 96 at 5. For one, the 17 County Defendants are correct that Armentero v. Immigr. & Natur. Serv., 412 F.3d 1088 (9th Cir. 18 2005), pertains to the “general appellate rule that an argument may not be raised for the first time 19 in a reply brief.” County Reply at 3. Contrary to Plaintiff’s assertions, it does not stand for the 20 rule that a defendant must address the factual determinations in a previously issued order on a 21 motion for summary judgment in order to prevail on a later motion to dismiss. And in any event, 22 neither the Court’s conclusions in the summary judgment order nor Plaintiff’s new allegations 23 suggest the existence of a policy or practice subjecting the County of Monterey to Monell liability. 24 In sum, Counts I, II, and III of the First Amended Compliant are DISMISSED WITHOUT 25 LEAVE TO AMEND insofar as they are asserted against Defendant County of Monterey. The 26 County Defendants do not seek dismissal of Counts II and III, or of the unreasonable seizure of 27 property theory in Count I, insofar as they are asserted against the individual officers, and the 1 the unreasonable seizure of property portion of Count I. Therefore, Plaintiff may proceed on the 2 unreasonable seizure of property theory in Count I and on Counts II and III against Scott Davis, 3 Angel Estrada, Matthew Mendoza, and Matthew Perez. 4 D. Count VII: California Civil Code § 2080 et seq. 5 Section 2080 of the California Civil Code states: Any person who finds a thing lost is not bound to take charge of it, unless the 6 person is otherwise required to do so by contract or law, but when the person does take 7 charge of it he or she is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire. Any person or any public or private entity that finds 8 and takes possession of any money, goods, things in action, or other personal property . . . shall, within a reasonable time, inform the owner, if known, and make restitution without 9 compensation, except a reasonable charge for saving and taking care of the property. 10 Cal. Civ. Code § 2080. The County Defendants do not challenge this claim as asserted 11 against the County of Monterey. See County Mot. at 7. However, they make two arguments in 12 favor of dismissing Count VII against the individual officer defendants: First, the County 13 Defendants point out that “Plaintiff does not allege that the individual defendants . . . took 14 possession of the property at issue.” Id. at 8. Second, the County Defendants argue that the 15 relevant code section “expressly governs lost possessions, not confiscated possessions.” County 16 Reply at 3. In response, Plaintiff argues that the FAC sufficiently alleges that the County 17 Defendants confiscated and/or seized the property. ECF No. 96 at 5 (citing FAC ¶¶ 24, 56). 18 The Court agrees with the County Defendants that Plaintiff’s FAC falls short of alleging 19 that the individual defendants obtained possession of her property. Her specific allegations about 20 the officers pertain only to the circumstances of her arrest, see FAC ¶¶ 18–19, and all she provides 21 regarding the subsequent possession of her property is that “[h]er RV was towed,” “[h]er trailer 22 . . . was towed,” “[s]he also lost bicycles, pots, pans, jewelry, . . . a tow bar[,] . . . eighteen 55- 23 gallon drums” and their contents, and at least $20,000 in cash, see FAC ¶¶ 21–22. Plaintiff does 24 not say who, specifically, confiscated or took possession of those items, so it is unclear whether 25 the individual officers did so or whether some other employee(s) of the County of Monterey 26 collected the property. Since section 2080 applies where a “person . . . finds and takes possession 27 of” property, the Court concludes that Plaintiff needs to allege possession by the individual officer 1 Therefore, the Court DISMISSES Count VII of the First Amended Complaint against Scott Davis, 2 Angel Estrada, Matthew Mendoza, and Matthew Perez. 3 Plaintiff has already had the opportunity to amend this claim and was unsuccessful in 4 doing so. Moreover, this case was filed over two years ago, see ECF No. 1, and the trial date is 5 approximately seven months away, see ECF No. 68. It would unduly prejudice the individual 6 officer defendants for Plaintiff to receive another opportunity to amend her complaint at this late 7 stage, so the dismissal is WITHOUT LEAVE TO AMEND. See Eminence Capital, 316 F.3d at 8 1052. 9 E. Count VIII: Conversion 10 “The elements of a claim for conversion under California law are: (1) the plaintiff’s 11 ownership or right to possession of property; (2) the defendant’s conversion by a wrongful act or 12 disposition of property rights; and (3) damages.” Cottrell v. AT&T Inc., No. 19-CV-07672, 2020 13 WL 4818606, at *5 (N.D. Cal. Aug. 19, 2020) (quoting Welco Elecs., Inc. v. Mora, 223 Cal. App. 14 4th 202, 208 (2014)) (cleaned up). The County Defendants argue that Count VIII should be 15 dismissed against both the County of Monterey and the individual defendants. County Mot. at 8– 16 9. 17 Regarding the County of Monterey, Defendants state that the County has immunity from 18 common law tort claims like conversion under California Government Code section 815, which 19 says that “[e]xcept as otherwise provided by statute . . . [a] public entity is not liable for an injury, 20 whether such injury arises out of an act or omission of the public entity or a public employee or 21 any other person.” Cal. Gov’t Code § 815; County Mot. at 8 (citing Nozzi v. Hous. Auth. of City of 22 Los Angeles, 806 F.3d 1178, 1200 (9th Cir. 2015), as amended on denial of reh’g and reh’g en 23 banc (Jan. 29, 2016)). Plaintiff’s response is twofold. First, Plaintiff says that California 24 Government Code section 815.2 renders the County liable for “injury proximately caused by an 25 act or omission of an employee of the public entity within the scope of his employment if the act 26 or omission would, apart from this section, have given rise to a cause of action against that 27 employee.” ECF No. 96 at 6. Plaintiff argues that she has pled vicarious liability in her 1 liability for a public entity that is “under a mandatory duty imposed by an enactment that is 2 designed to protect against the risk of a particular kind of injury” and “fail[s] to discharge the 3 duty,” unless the entity shows that it exercised reasonable diligence in attempting to discharge the 4 duty. Id. at 7. Plaintiff argues that the County had a duty to protect her property under California 5 Civil Code sections 2080.2, 2080.4, and 2080.6, and its failure to do so renders it susceptible to 6 liability under California Government Code section 815.6. Id. On Reply, the County Defendants 7 argue that Plaintiff had not pled section 815.2 or 815.6 as bases for liability in her First Amended 8 Complaint. County Reply at 3. 9 When reviewing a complaint submitted by a pro se plaintiff, courts should “liberally 10 construe[]” the pleading, holding it to “less stringent standards than formal pleadings drafted by 11 lawyers.” Erickson, 551 U.S. at 94. Under that more forgiving standard, the Court finds that 12 Plaintiff has adequately pled the County’s liability under sections 815.2 and 815.6 of the 13 California Government Code. While admittedly Plaintiff did not title her eighth cause of action 14 using those code sections, she plainly stated that “Defendants . . . had a duty . . . to protect [her] 15 personal property under California Civil Code §§ 2080.2, 2080.4 and 2080.6,” which they 16 breached when “their agents and employees wrongly exerted dominion over the property.” FAC 17 ¶ 56. These statements were sufficient to put the County on notice that it might be held liable for a 18 tortious injury based on vicarious liability or its failure to carry out a statutory duty. Accordingly, 19 the Court hereby DENIES the motion to dismiss Count VIII against the County of Monterey. 20 Regarding the individual defendants, the County Defendants argue—in line with their 21 argument on Count VII of the First Amended Complaint—that Plaintiff fails to allege that the 22 individual defendants “took possession of Plaintiff’s property at issue, much less conversion by a 23 wrongful act or disposition of Plaintiff’s property rights.” County Mot. at 9. The Court agrees. 24 As with Count VII, the Court finds that Plaintiff did not include any specific facts alleging that the 25 individual defendants actually took possession of any of Plaintiff’s property, since it is ambiguous 26 as to whether it was the officers themselves or other County employees who confiscated the items. 27 Therefore, the Court DISMISSES Count VIII of the First Amended Complaint against Scott 1 with regard to Count VII, the dismissal is WITHOUT LEAVE TO AMEND. 2 F. Count X: Battery 3 Similar to their argument on Count VIII, the County Defendants argue that Plaintiff’s tenth 4 cause of action for battery fails insofar as it is asserted against the County of Monterey, because 5 the County is immune against battery claims under California Government Code section 815. 6 County Mot. at 9. Here, too, Plaintiff responds that she has “alleged the required elements for 7 vicarious liability,” rendering the County of Monterey subject to liability under California 8 Government Code section 815.2. ECF No. 96 at 7. 9 The Court agrees with Plaintiff that her allegations in the First Amended Complaint are 10 sufficient to state a claim under section 815.2, despite the fact that she did not title the tenth cause 11 of action accordingly. Specifically, the First Amended Complaint states that “[a]t the time of the 12 offensive contact, Mendoza, Davis, Estrada, and Perez were employees, servants, and/or agents of 13 the Monterey County Sheriff’s Department, acting in the course and scope of their employment.” 14 FAC ¶ 66. This allegation of potential vicarious liability was sufficient to put the County on 15 notice that it might be liable under California Government Code section 815.2, so the Court 16 DENIES the motion to dismiss Count X of the First Amended Complaint against the County of 17 Monterey. 18 G. Count XI: Wrongful Eviction 19 Count XI of Plaintiff’s First Amended Complaint asserts a cause of action for wrongful 20 eviction against the County of Monterey and One Starfish, setting forth four theories for the claim: 21 California common law, section 1946 of the California Civil Code, Chapter 4 of Title 3 of Part 3 22 of the California Code of Civil Procedure, and “other applicable statutes and laws.” FAC ¶ 74. 23 Only One Starfish challenges this cause of action. The Court will address Plaintiff’s various 24 theories in turn. 25 i. California Common Law 26 To state a claim for wrongful eviction under California common law, a plaintiff must show 27 that she is “a person in peaceable possession of real property” and that she suffered damages due 1 the lawful owner or possessor” of the property. Spinks v. Equity Residential Briarwood 2 Apartments, 171 Cal. App. 4th 1004, 1039 (2009). One Starfish argues that Plaintiff cannot 3 establish “peaceable possession” of the property in question, because the FAC fails to “allege the 4 existence of any lease” that would support Plaintiff’s “right to exclusive possession as against the 5 whole world” of certain property. Starfish Mot. at 4. Furthermore, One Starfish argues that “no 6 case in California recognizes a leasehold interest in a parking space in a parking lot.” Id. 7 In the order on One Starfish’s motion to dismiss Plaintiff’s initial Complaint, the Court 8 gave Plaintiff leave to amend her common law wrongful eviction theory in order to “allege further 9 facts showing tenancy even in the absence of allegations that she paid rent.” MTD Order at 5. In 10 her First Amended Complaint, Plaintiff expanded on the facts set out in the initial Complaint by 11 stating that she “was informed and led to believe by representatives of One Starfish (including 12 program manager Dorian Manuel) that she was a registered member” of the Safe Parking 13 Program, that “she was treated as part of [the] program,” that she “was featured in One Starfish’[s] 14 brochure for the project,” which was used “for program advertising purposes, including to help 15 One Starfish raise funds,” and that she contributed to the upkeep of the parking lot through 16 cleaning, distributing food, and other tasks. FAC ¶¶ 70, 73. 17 The Court agrees that providing services can be sufficient consideration to support 18 establishment of a leasehold interest in property. See Cal. Civ. Code § 1605 (“Any benefit 19 conferred . . . upon the promisor, by any other person, to which the promisor is not lawfully 20 entitled, . . . as an inducement to the promisor, is a good consideration for a promise.”); Karz v. 21 Mecham, 120 Cal. App. 3d Supp. 1, 4 (App. Dep’t Super. Ct. 1981) (indicating that a person may 22 secure tenancy rights in employer-provided property). But in order to qualify as “consideration,” 23 the benefit conferred (or prejudice suffered) “must actually be bargained for as the exchange for 24 the promise.” Prop. California SCJLW One Corp. v. Leamy, 25 Cal. App. 5th 1155, 1165 (2018). 25 As One Starfish argues in this second motion to dismiss, Starfish Mot. at 6, Plaintiff’s First 26 Amended Complaint still fails to show the necessary connection between her actions and the 27 alleged promise by One Starfish. That is to say: Plaintiff states that she helped maintain the 1 not allege that these actions were undertaken because of a promise by One Starfish that she would 2 have a permanent property interest in the parking space if she provided those services. Without 3 that connection, any representation by a One Starfish team member that she could remain in her 4 space indefinitely was a gratuitous promise insufficient to confer an actual interest in any real 5 property. The Court therefore DISMISSES Plaintiff’s common law wrongful eviction theory 6 under Count XI of the First Amended Complaint. Plaintiff has already failed to amend one time, 7 and the Court finds that Defendant One Starfish would be unduly prejudiced if Plaintiff were to 8 receive another opportunity to amend her complaint at this late stage in the litigation. Therefore, 9 the dismissal is WITHOUT LEAVE TO AMEND. 10 ii. California Civil Code § 1946 11 Section 1946 of the California Civil Code states that when a person “hire[s] . . . real 12 property, for a term not specified by the parties,” such a tenancy can only be terminated by written 13 notice 30 days in advance. Cal. Civ. Code § 1946. One Starfish challenges the sufficiency of the 14 First Amended Complaint under this theory based on Plaintiff’s failure to allege facts showing that 15 she paid rent or otherwise provided compensation in exchange for the parking spot, arguing that 16 Plaintiff therefore does not qualify as a “hirer” of real property. Starfish Mot. at 5. Plaintiff 17 responds by repeating her argument that her contributions to the upkeep of the parking lot and her 18 participation in One Starfish promotional efforts were consideration for her permanent occupancy 19 of the parking space in question. ECF No. 97 at 4. 20 While Plaintiff’s brief says explicitly that “she had an agreement with One Starfish for the 21 permanent occupancy of a specific parking space, and in return, she contributed to the upkeep, 22 maintenance, and security of the parking lot,” id., her First Amended Complaint makes no such 23 connection between her services and her occupancy of the space, see FAC ¶¶ 68–77. Nor does it 24 offer specific facts demonstrating that there was a meeting of the minds between herself and One 25 Starfish regarding a bargained-for exchange of services and a leasehold interest in the space. 26 Thus, for similar reasons as applied to Plaintiff’s common law theory, the Court DISMISSES 27 Plaintiff’s theory based on Section 1946 of the California Civil Code under Count XI of the First 1 wrongful eviction theory, this dismissal is WITHOUT LEAVE TO AMEND. 2 iii. California Code of Civil Procedure § 1159 3 Section 1159 of the California Code of Civil Procedure establishes liability for “forcible 4 entry” where a person “enters upon or into any real property” by “breaking open doors, windows, 5 or other parts of a house, or by any kind of violence or circumstance of terror” or who “after 6 entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party 7 in possession.” Cal. Code Civ. Proc. § 1159(a). The section defines “party in possession” to 8 include “any person who hires real property.” Id. § 1159(b). 9 One Starfish argues that Plaintiff’s First Amended Complaint does not adequately address 10 this Court’s reasons for dismissing this theory in Plaintiff’s initial Complaint. Starfish Mot. at 7. 11 In the order on One Starfish’s first motion to dismiss, the Court explained that Plaintiff had “failed 12 to allege sufficient facts showing that she was a hirer of real property or that she otherwise had 13 rights to the real property on which her RV rested,” as required to support a claim of forcible 14 entry. MTD Order at 10. As discussed in the previous two subsections of the present order, 15 Plaintiff’s First Amended Complaint still falls short in this regard, having failed to offer specific 16 facts showing a meeting of the minds between Plaintiff and One Starfish about Plaintiff’s 17 purported contractual interest in the parking space. Accordingly, the Court DISMISSES 18 Plaintiff’s theory based on section 1159 of the California Code of Civil Procedure under Count XI 19 of her First Amended Complaint. For the same reasons as stated with regard to Plaintiff’s 20 common law wrongful eviction theory, this dismissal is WITHOUT LEAVE TO AMEND. 21 H. Count XII: Injunctive Relief 22 The County Defendants argue that Plaintiff’s cause of action for “Injunctive Relief” should 23 be dismissed “because injunctive relief is a remedy and not an independent cause of action.” 24 County Mot. at 9 (citing EVIG, LLC v. Natures Nutra Co., 685 F. Supp. 3d 991, 996 (D. Nev. 25 2023), and Lorona v. Arizona Summit L. Sch., LLC, 151 F. Supp. 3d 978, 997 (D. Ariz. 2015)). 26 Plaintiff agrees. ECF No. 96 at 8. The Court hereby DISMISSES Count XII WITHOUT LEAVE 27 TO AMEND, although the Court remains able to issue injunctive relief as a remedy if appropriate. 1 IV. ORDER 2 For the foregoing reasons, IT IS HEREBY ORDERED that: 3 1. Plaintiffs false arrest theory based on the California Constitution in Count I is 4 DISMISSED WITHOUT LEAVE TO AMEND against all relevant defendants. 5 2. Counts IV, V, IX, and XII are DISMISSED WITHOUT LEAVE TO AMEND against 6 all relevant defendants. 7 3. Counts II and III are DISMISSED WITHOUT LEAVE TO AMEND against the 8 County of Monterey. Plaintiff's claim for unreasonable seizure of property in violation 9 of the Fourth Amendment in Count I is likewise DISMISSED WITHOUT LEAVE TO 10 AMEND against the County of Monterey. Plaintiff may proceed on these causes of 11 action against the individual officer defendants. 12 4. Counts VII and VII are DISMISSED WITHOUT LEAVE TO AMEND against Scott 5 13 Davis, Angel Estrada, Matthew Mendoza, and Matthew Perez. The motion to dismiss 14 Count VIII against the County of Monterey is DENIED. 3 15 5. The motion to dismiss Count X against the County of Monterey is DENIED. a 16 6. Count XIis DISMISSED WITHOUT LEAVE TO AMEND against One Starfish, Inc. 3 17 Since the County did not challenge Count XI, Plaintiff may proceed on Count XI 18 against the County of Monterey. 19 20 IT IS SO ORDERED. 21 22 Dated: December 19, 2024

TH LABSON FREEMAN 24 United States District Judge 25 26 27 28