Salcido v. City of Mountain View

• Court: District Court, N.D. California
• Decided: May 6, 2025
• Docket: 5:24-cv-08833
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

10 FELIX SALCIDO, Case No. 24-cv-08833-NC 11 Plaintiff, ORDER GRANTING 12 v. DEFENDANTS’ MOTIONS TO DISMISS WITH LEAVE TO 13 CITY OF MOUNTAIN VIEW, et al., AMEND; DENYING PARTIES’ REQUESTS FOR JUDICIAL 14 Defendants. NOTICE 15 Re: ECF 24, 32, 35

16 17 This case arises from Plaintiff Felix Salcido towing Defendant Ellen Kamei and 18 Defendant Christopher Takeuchi’s car. Plaintiff alleges that Kamei and Takeuchi used 19 Kamei’s status as a City of Mountain View council member to initiate an investigation by 20 Defendant Sergeant Christopher Goff of Plaintiff’s towing practices, which led to 21 Plaintiff’s “investigatory detention” and felony charge. 22 Defendants Kamei, Takeuchi, Goff, and the City of Mountain View brought three 23 separate motions to dismiss Plaintiff’s First Amended Complaint (FAC). All parties also 24 brought multiple requests for judicial notice. For the following reasons, the Court 25 GRANTS all three motions to dismiss with leave to amend and DENIES all parties’ 26 requests for judicial notice. 27 1 I. BACKGROUND 2 A. Factual Background 3 Plaintiff’s FAC alleges the following facts. 4 On or around April 12, 2023, Plaintiff was working as a tow truck driver for Ed’s 5 Tow & Cradle in Mountain View, California. ECF 19 (FAC) at 4. Ed’s Tow & Cradle 6 contracted with a company located at 745 Evelyn Avenue, Mountain View, California 7 (hereinafter, the “subject property”) to assist the company with tows of unauthorized 8 vehicles in the reserved parking spots. Id. 9 On April 12, 2023, Mountain View City council member Ellen Kamei and her 10 husband, Christopher Takeuchi, parked their vehicle, a Volvo, in the reserved spots at the 11 subject property. Id. at 4, 9. Other citizens also parked their vehicles in the reserved spots. 12 Id. at 4. There were visible signs that stated that any non-authorized vehicle parked in the 13 reserved spots would be subject to tow. Id. 14 Plaintiff saw Kamei and Takeuchi’s Volvo, towed it per the agreement to tow 15 unauthorized vehicles, and reported the tow to the Mountain View Police Department per 16 regulations. Id. at 5. Plaintiff also towed a Honda and a Tesla. Id. 17 Kamei and Takeuchi went to Ed’s Tow Shop to pick up their vehicle at around 8:45 18 p.m. on April 12, 2023. Id. Takeuchi had an aggressive demeanor and repeatedly 19 demanded Kamei to “call the captain.” Id. Kamei angrily asked Plaintiff why she was 20 towed. Id. at 6. After Plaintiff responded, Kamei claimed that she “looked up that 21 company, that’s not even a real company, you can’t even find them online.” Id. Kamei 22 and Takeuchi then paid the tow bill and left with their vehicle. Id. 23 Kamei and Takeuchi then, using Kamei’s position, status, and access as city council 24 member, jointly reached out to Kamei’s contacts at the Mountain View Police Department 25 to complain about the tow and get back at Plaintiff. Id. at 7. Kamei and Takeuchi falsely 26 reported that Plaintiff had illegally towed their vehicle. Id. Kamei and Takeuchi did not 27 use normal channels to report their complaints, such as calling 911 or the non-emergency 1 Department. Id. at 7–8. Kamei and Takeuchi also, through their own channels and 2 maneuvers, had the matter assigned to Defendant Sergeant Christopher Goff and gave 3 directives to exclude them in the official paper trail investigation. Id. at 8. 4 Goff was notified of the potential unlawful towing at the subject property on April 5 13, 2023, at 6:45 a.m. Id. at 7. Goff purposefully omitted Kamei and Takeuchi from his 6 police report to spare Kamei allegations of political corruption and misuse of political 7 influence. Id. at 8. 8 In his investigation, Goff spoke with the manager of the subject property’s reserved 9 spaces. Id. Goff interrogated Plaintiff as well. Id. 10 Goff also saw the clearly marked reserved parking signs that threatened to tow 11 unauthorized vehicles. Id. 12 Goff also requested a query of all private property tows at the subject property and 13 noted a total of 10 between March 20, 2023, and April 13, 2023. Id. Plaintiff towed three 14 vehicles from the subject property on April 12, 2023, but Goff incorrectly reported only a 15 2018 Tesla and 2005 Honda as the two must recently towed vehicles. Id. at 9. However, 16 the two most recently towed vehicles were the Honda and Kamei’s Volvo. Id. 17 Goff then contacted the owners of the other towed vehicles and claimed their 18 vehicles had allegedly been subjected to an illegal tow. Id. at 10. Goff encouraged the 19 Tesla owner to press charges against Plaintiff. Id. At least one owner felt that Goff 20 attempted to pressure and influence him to retaliate against Plaintiff. Id. Goff did not 21 include information about calling the other vehicle owners in his report. Id. 22 Goff finalized and approved his police report and did not have any other officer 23 review his report. Id. The report sat for 13 months before Goff had a records specialist, 24 Alicia Farias, submit and present the report as the application for an arrest warrant to 25 Magistrate Judge Matthew Harris. Id. at 11. 26 The District Attorney brought a felony charge against Plaintiff for a violation of 27 California Vehicle Code 10851(a), the taking or unauthorized use of a vehicle with intent 1 Attorney relied on Goff’s report. Id. Plaintiff fought the charge, and it was ultimately 2 dismissed in his favor. Id. 3 B. Procedural Background 4 Plaintiff filed his initial complaint on December 9, 2024. ECF 6. After Defendants 5 moved to dismiss and strike his initial complaint, Salcido filed his First Amended 6 Complaint (FAC). ECF 12; ECF 16; ECF 17; ECF 19 (FAC). 7 Defendants then filed three separate motions to dismiss Plaintiff’s FAC under the 8 Federal Rule of Procedure 12(b)(6). Takeuchi filed at ECF 24 (Takeuchi Mot.), the City of 9 Mountain View and Goff filed at ECF 32 (City Mot.), and Kamei filed at ECF 35 (Kamei 10 Mot.). Plaintiff opposed all three motions to dismiss. ECF 31 (Opp’n to Takeuchi); ECF 11 44 (Opp’n to the City); ECF 45 (Opp’n to Kamei). Defendants separately replied to 12 Plaintiff’s three oppositions. ECF 41 (Takeuchi’s Rep.); ECF 47 (City’s Rep.); ECF 50 13 (Kamei’s Rep.). The Court addresses all three motions to dismiss in this Order. 14 All parties have consented to magistrate judge jurisdiction. ECF 11; ECF 13; ECF 15 21. 16 II. LEGAL STANDARD 17 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 18 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To 19 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as 20 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 21 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When 22 reviewing a 12(b)(6) motion, a court “must accept as true all factual allegations in the 23 complaint and draw all reasonable inferences in favor of the non-moving party.” Retail 24 Prop. Trust v. United Bd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 25 2014). A court, however, need not accept as true “allegations that are merely conclusory, 26 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. 27 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A claim is facially plausible when it “allows 1 alleged.” Id. If a court grants a motion to dismiss, leave to amend should be granted 2 unless the pleading could not possibly be cured by the allegation of other facts. Lopez v. 3 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 4 III. DISCUSSION 5 A. The Court denies all of Plaintiff’s and Defendants’ requests for judicial 6 notice. 7 When ruling on a motion to dismiss, “a court may generally consider only 8 allegations contained in the pleadings, exhibits attached to the complaint, and matters 9 properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 10 2007). A court can take judicial notice of “a fact that is not subject to reasonable dispute” 11 because it is “generally known” within the court’s jurisdiction or can be “accurately and 12 readily determined from sources whose accuracy cannot be reasonably questioned.” Fed. 13 R. Evid. 201. If the documents presented are not relevant to the legal issues before the 14 court, the court can decline to take judicial notice of them. See Flick v. Liberty Mut. Fire 15 Ins. Co., 205 F.3d 386, 399 n.7 (9th Cir. 2000). If additional documents are presented, a 16 court must either exclude them or convert the motion to dismiss into a Rule 56 motion for 17 summary judgment. Fed. R. Civ. P. 12(d). 18 Here, all parties attached additional documents for the Court to consider when 19 evaluating the three motions to dismiss. ECF 24-1; ECF 31-1; ECF 31-2; ECF 33; ECF 20 35-1; ECF 44-1; ECF 44-2; ECF 46-1; ECF 46-2; ECF 48. Consequently, before 21 evaluating the merits of the motion to dismiss, the Court must determine whether to 22 judicially notice the documents, exclude them, or convert the motion. 23 Plaintiff requests the admission of three declarations made by Plaintiff at ECF 31-1, 24 ECF 44-1, and ECF 46-2. The Court declines to take judicial notice of these declarations 25 as the alleged facts in the declaration are not generally known and are subject to reasonable 26 dispute. 27 Plaintiff, Kamei, the City of Mountain View, and Takeuchi request judicial notice 1 S. Harris. ECF 31-2; ECF 44-1; ECF 46-2, Fact 1; ECF 24-1; ECF 33, Fact 1; ECF 35-1, 2 Fact 1. Kamei and the City of Mountain View also request judicial notice of Articles V 3 and VI of the Charter of the City of Mountain View. ECF 35-1, Fact 2; ECF 33, Facts 2 4 and 3. Kamei additionally requests judicial notice of an order allowing 21 days extra time 5 to file the underlying motion pursuant to stipulation. ECF 35-1, Fact 3. The Court 6 DENIES all of these requests for judicial notice because it did not rely upon these 7 requested documents in reaching its conclusion in this Order. 8 The City of Mountain View also requests judicial notice of the agenda for the 9 December 10, 2024, meeting of the City Council of the City of Mountain View. ECF 48. 10 The Court DENIES this request because the request was improperly made in conjunction 11 with a reply brief. 12 As such, all requests for judicial notice in ECF 24-1, ECF 31-1, ECF 31-2, ECF 33, 13 ECF 35-1, ECF 44-1, ECF 44-2, ECF 46-1, ECF 46-2, and ECF 48 are DENIED. 14 B. Plaintiff did not sufficiently allege a Fourth Amendment malicious 15 prosecution under Section 1983 against Goff or Kamei. 16 Plaintiff brings a 42 U.S.C. § 1983 claim against Goff and Kamei, alleging that they 17 engaged in malicious prosecution against Plaintiff in violation of his Fourth Amendment 18 right to be free from unreasonable search and seizure. FAC at 16. 19 To bring a Fourth Amendment malicious prosecution claim under § 1983, a plaintiff 20 “must show that a government official charged him without probable cause, leading to an 21 unreasonable seizure of his person.” Chiaverini v. City of Napoleon, Ohio, 602 U.S. 556, 22 558 (2024) (citing Thompson v. Clark, 596 U.S. 36, 43 (2022)). Malicious prosecution 23 actions may be brought against “persons who have wrongfully caused the charges to be 24 filed.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (citing Galbraith 25 v. Cnty. of Santa Clara, 307 F.3d 1119, 1126–27 (9th Cir. 2002)). 26 The Court finds that Plaintiff failed to sufficiently allege malicious prosecution 27 against both Goff and Kamei. 1 1. Plaintiff did not sufficiently allege that Goff’s omissions were 2 material to probable cause. 3 Plaintiff alleges that Goff engaged in malicious prosecution when he inaccurately 4 “investigated, prepared his report, and recommendations” that were used in the arrest 5 warrant application and relied upon by the district attorney to charge Plaintiff.1 FAC at 16. 6 The Court finds that as alleged, Goff’s preparation of a flawed police report is not 7 sufficient to plead malicious prosecution against Goff. 8 To begin, Plaintiff is unable to show that there was a lack of probable cause for 9 either his arrest warrant or his felony charge. While Plaintiff conclusorily alleges that 10 there was no probable cause for either, he is unable to show why. Id. Plaintiff only alleges 11 that Goff’s report “contained false and or [sic] critically important omitted information.” 12 Id. However, to prevail on a claim of judicial deception, Plaintiff “must show that the 13 defendant deliberately or recklessly made false statements or omissions that were material 14 to the finding of probable cause.” Ewing v. City of Stockton, 588 F.3d 1218, 1223 (9th Cir. 15 2009) (citations omitted). 16 Here, Plaintiff alleges Goff’s report was deceptive because (1) Goff incorrectly 17 named the two most recent vehicles towed, and (2) Goff did not include any information 18 about calling other vehicle owners. FAC at 9–10. While Plaintiff alleges that these 19 omissions were deliberate, he fails to argue that they were material to the finding of 20 probable cause. Id. at 7, 9, 14. The Court finds that probable cause still exists in 21 Plaintiff’s arrest warrant and charge even if the report was corrected and supplemented 22 with these two omissions. See Ewing, 588 F.3d at 1233 (stating that if the officer omitted 23 facts, the court determines whether the report, once corrected and supplemented, 24 1 It is unclear to the Court whether Plaintiff is also alleging that Goff’s alleged detention of 25 Plaintiff additionally violated Plaintiff’s Fourth Amendment rights. FAC at 16 (“Plaintiff was unlawfully detained and arrested for a prolonged period by Defendant Goff . . . via his 26 recommendations and investigation.”). While Goff addresses this issue in his motion to dismiss, Plaintiff does not, and only argues that he “sufficiently pled a malicious 27 prosecution claim against Defendant Goff.” City Mot. at 6; Opp’n to City at 9. The Court 1 establishes probable cause). The omitted statements do not detract from the probable 2 cause that stemmed from the Tesla owner’s charges. 3 As such, the Court finds that Plaintiff failed to sufficiently allege that Goff’s 4 omissions in his police report were material to probable cause and thus DISMISSES 5 Plaintiff’s § 1983 claim against Goff. 6 2. Plaintiff did not sufficiently allege that Kamei was acting under 7 the color of the law. 8 Plaintiff alleges that Kamei engaged in malicious prosecution when she falsely 9 reported to the Mountain View Police Department that she was illegally towed, thereby 10 “initiat[ing] and direct[ing] and or caus[ing] an investigation” into Plaintiff. FAC at 16. 11 Defendant argues that Kamei was not acting under the color of state law when she 12 made her report to the Mountain View Police Department, a necessary component of a § 13 1983 claim. Kamei Mot. at 7; 42 U.S.C. § 1983. Plaintiff’s Opposition Brief to Kamei’s 14 Motion to Dismiss does not address whether Kamei acted under the color of state law. 15 Opp’n to Kamei. In fact, it does not address Kamei’s liability under § 1983 at all, and 16 instead only addresses Kamei’s Bane Act claim and Takeuchi’s state law malicious 17 prosecution claim. Id. at 9 (for example, stating that “Plaintiff has sufficiently pled a 18 malicious prosecution claim against Defendant Takeuchi.”). Because Plaintiff does not 19 address Kamei’s arguments in his opposition brief, the Court finds that Plaintiff abandoned 20 his malicious prosecution claim against Kamei, or at the very least, conceded that Kamei 21 was not acting under the color of law. Shagoofa v. Eshaqzi, Case No. 22-cv-01824-FWS- 22 JDE, 2024 WL 1600657, at *3 (C.D. Cal. Feb. 26, 2024) (“‘A failure to oppose [moving 23 arguments in] a motion, as to a claim or an issue’ may be deemed ‘a waiver, abandonment, 24 or concession of that claim or issue.’”). 25 As such, the Court DISMISSES Plaintiff’s §1983 claim against Kamei. 26 27 1 C. Plaintiff failed to sufficiently allege that Goff, Kamei, Takeuchi, and the 2 City of Mountain View violated the Bane Act by intentionally 3 interfering with Plaintiff’s right to be free from unreasonable search 4 and seizure. 5 Plaintiff alleges that the Goff, Kamei, Takeuchi, and the City of Mountain View 6 violated the Bane Act by intentionally interfering, or attempting to interfere with, 7 Plaintiff’s rights under the Fourth Amendment and Article I, Section 13 of the California 8 Constitution to be free from “unlawful, unreasonably invasive, or prolonged investigatory 9 detention in the absence of probable cause.” 2 FAC at 13. 10 The Tom Bane Civil Rights Act creates a cause of action where a person “interferes 11 by threat, intimidation, or coercion . . . with the exercise or enjoyment by any individual or 12 individuals of rights secured by the Constitution or laws of the United States[.]” Cal. Civ. 13 Code § 52.1(a). To bring a claim under the Bane Act, the plaintiff must satisfy two 14 elements: (1) intentional interference or attempted interference with a state or federal 15 constitutional or legal right, and (2) the interference or attempted interference was by 16 threats, intimidation, or coercion. Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 17 (2015). Specific intent in element (1) comprises of two questions: first, “is the right at 18 issue clearly delineated and plainly applicable under the circumstances of the case,” and 19 second, “did the defendant commit the act in question with the particular purpose of 20 depriving the citizen victim of his enjoyment of the interests protected by that right?” 21 Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 520 (9th Cir. 2018) (cleaned up). The Bane 22 Act applies with equal force to persons who do not act under color of law.” Id. 23 24 25 2 In his FAC, Plaintiff also alleges that Defendants violated his rights under Article I, 26 Section 10 of the California Constitution, which states that witnesses may not be unreasonably detained. FAC at 13. However, Plaintiff does not argue or plead any facts to 27 support this claim. The Court therefore DISMISSES Plaintiff’s Bane Act claims against 1 1. Plaintiff did not sufficiently allege that Goff subjected Plaintiff to 2 a constitutionally protected seizure. 3 Plaintiff alleges that Goff intentionally interfered with Plaintiff’s right to be free 4 from unreasonable search and seizure when Goff “subjected him to an unreasonable 5 detention and interrogation.” FAC at 14. The Court finds that as currently alleged, the 6 detention did not amount to a seizure protected by the Fourth Amendment, and thus, Goff 7 could not have intentionally interfered with Plaintiff’s rights under the Bane Act.3 8 Plaintiff’s right to be free from unreasonable search and seizure was not plainly 9 applicable in this case because Plaintiff failed to allege any facts or circumstances that his 10 detention constituted a constitutionally protected seizure. See Sandoval, 912 F.3d at 520 11 (stating that while the right to be free from unreasonable seizure is generally well 12 established, the court must look to whether there is anything vague about the application of 13 the right under the circumstances of the case). 14 It is not enough for Plaintiff to allege that there was an encounter between him and 15 Goff—he needed to allege that Goff, “by means of physical force or show of authority, has 16 in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 20 n.16 17 (1968). Plaintiff has not done so. At most, Plaintiff alleged that Goff was “aggressive, 18 dismissive, and scornful.” FAC at 9. He did not allege that he did not feel free to leave, 19 nor did he provide any other details of the circumstances of the detention such that the 20 Court could assess whether a reasonable person would have felt as such. Brendlin v. 21 California, 551 U.S. 249, 255 (2007) (finding that when there is no unambiguous intent to 22 restrain or when an individual’s submission to a show of governmental authority takes the 23 form of passive acquiescence, the court must view the seizure in view of all of the 24 circumstances surrounding the incident and determine if a reasonable person would have 25

26 3 The Court analyzes all of the Defendants’ alleged violations of Plaintiff’s rights under Article I, Section 13 of the California Constitution in conjunction with his Fourth 27 Amendment rights. See Chang v. Cnty. of Siskiyou, 746 F. Supp. 3d 808, 827 (E.D. Cal. 1 believed that he was not free to leave). For example, Plaintiff did not allege the length of 2 the interrogation (merely that it was “prolonged”), where or how the interrogation took 3 place, or how the encounter came to be. 4 As such, the Court finds that Plaintiff failed to sufficiently allege that Goff’s 5 detention of Plaintiff had the requisite intent to interfere with Plaintiff’s Fourth 6 Amendment right and DISMISSES Plaintiff’s Bane Act claim against Goff. 7 2. Plaintiff did not sufficiently allege that Kamei interfered with 8 Plaintiff’s rights by threats, intimidation, or coercion. 9 Plaintiff alleges that Kamei intentionally interfered with Plaintiff’s right to be free 10 from unreasonable search and seizure when she used her political connections to pursue a 11 criminal investigation against Plaintiff. FAC at 14. The Court finds that Plaintiff has not 12 sufficiently alleged that Kamei attempted to interfere with Plaintiff’s rights by threats, 13 intimidation, or coercion. 14 “Speech alone is not sufficient to support an action brought pursuant [Cal. Civ. 15 Code § 52.1] (b) or (c), except upon a showing that speech itself threatens violence against 16 a specific person or group of persons; and the person or group of persons against whom the 17 threat is directed reasonably fears that, because of the speech, violence will be committed 18 against them or their property and that the person threatening violence had the apparent 19 ability to carry out the threat.” Cal. Civ. Code § 52.1(k). Plaintiff generically references 20 “aggressive actions and threats,” but only gives examples of Kamei’s statements, not her 21 actions. He alleges that Kamei “angrily asked” Plaintiff “why she was even towed” and 22 falsely claimed “that the company who owned the reserved spaces did not exist.” FAC at 23 6. These statements are not enough to support a § 52.1(a) claim, as they do not constitute 24 reasonable threats of violence. None of these comments express an intent to cause any 25 harm, and at most, only made Plaintiff feel “unsure” as to why she was asking them. Id. 26 As such, Plaintiff did not sufficiently allege that Kamei attempted to interfere with 27 Plaintiff’s rights by threats, intimidation, or coercion, and DISMISSES Plaintiff’s Bane 1 3. Plaintiff did not sufficiently allege that Takeuchi interfered with 2 Plaintiff’s rights by threats, intimidation, or coercion. 3 Plaintiff alleges that Takeuchi attempted to interfere with Plaintiff’s right to be free 4 from unreasonable search and seizure when he used his political connections to pursue a 5 criminal investigation against Plaintiff. FAC at 14. The Court finds that Plaintiff failed to 6 sufficiently allege that Takeuchi’s attempted interference was by threats, intimidation, or 7 coercion. 8 Because Plaintiff only alleged that Takeuchi “repeatedly demanded that Defendant 9 Kamei ‘call the captain,’” with no accompanying actions, he must show that this demand 10 itself threatened violence against a specific person or group of persons. Id. at 5; Cal. Civ. 11 Code § 52.1(k). Plaintiff fails to do so. The Court is not convinced by Plaintiff’s 12 argument that a demand to call the captain is a “threat of violence” because it could 13 “weaponize the police” and “cause serious trouble,” especially because Plaintiff is a Latino 14 man. Opp’n to Takeuchi at 6–8. The threat of violence under § 52.1(k) “must be more 15 than tentative.” Zaiderman v. Los Angeles Cnty. Metro. Transportation Auth., Case No. 16 cv-20-2548-DSF-PVCx, 2020 WL 6048178, at *3 (C.D. Cal. Sept. 3, 2020). As such, 17 Takeuchi implicitly threatening Plaintiff with police action, which only implied the threat 18 of physical force and government authority perpetrated against Plaintiff, “in no way 19 show[s] actual violence or intimidation by the threat of violence.” Id. Plaintiff thus only 20 showed that he might have been subjected to coercion by the police, which is not enough. 21 As such, Plaintiff did not sufficiently allege that Takeuchi interfered with Plaintiff’s 22 rights via threats, intimidation, or coercion, and DISMISSES Plaintiff’s Bane Act claim 23 against Takeuchi. 24 4. The City of Mountain View cannot be held liable because Plaintiff 25 has not pleaded a sufficient claim against Goff, Kamei, and 26 Takeuchi. 27 Plaintiff argues that Mountain View is liable through Defendants Goff, Kamei, and 1 sufficiently plead a Bane Act violation against any of those three defendants, the City of 2 Mountain View, as currently pled, cannot be held liable. As such, the Court DISMISSES 3 Plaintiff’s Bane Act claim against the City of Mountain View. 4 D. Plaintiff did not sufficiently allege a malicious prosecution state law 5 claim against Takeuchi. 6 Plaintiff alleges that Takeuchi subjected Plaintiff to malicious prosecution by 7 wrongfully causing a criminal proceeding to be brought against him. FAC at 17. 8 Under California law, a malicious prosecution claim is disfavored and requires 9 proof that the underlying litigation: “(1) was commenced by or at the direction of the 10 defendant and was pursued to a legal termination in his, plaintiff’s favor; (2) was brought 11 without probable cause; and (3) was initiated with malice.” Est. of Tucker ex rel. Tucker v. 12 Interscope Recs., Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (alteration in original) (quoting 13 Zamos v. Stroud, 32 Cal.4th 958, 965 (2004)). The Court finds that Plaintiff has not 14 sufficiently shown that Takeuchi commenced the underlying litigation. 15 To determine whether the litigation was commenced at the direction of the 16 defendant, the Court looks to “whether the defendant was actively instrumental in causing 17 the prosecution.” Sullivan v. County of Los Angeles, 12 Cal.3d 710, 720 (1974) (citations 18 omitted). Cases dealing with actions for malicious prosecution against private persons 19 require that the defendant has at least sought out the police or prosecutorial authorities and 20 falsely reported facts to them indicating that plaintiff has committed a crime. Id. 21 Here, Plaintiff does not show that Takeuchi, a private person, was actively 22 instrumental in causing the prosecution. While Plaintiff does allege that Takeuchi, jointly 23 with Kamei, “reached out to Kamei’s contacts at the Mountain View Police Department 24 about the tow,” he does not allege that Takeuchi falsely reported facts. FAC at 7. It is not 25 enough to allege that Takeuchi “falsely claimed that Plaintiff had illegally towed their 26 vehicle,” because a legal conclusion is not a falsely reported fact. 27 1 As such, the Court finds that Plaintiff has not sufficiently alleged that Takeuchi 2 || maliciously prosecuted Plaintiff under California state law and DISMISSES Plaintiffs 3 || state law malicious prosecution claim against Takeuchi. 4 || IV. CONCLUSION 5 Based on the foregoing, the Court DENIES all of Plaintiff's and Defendants’ 6 || requests for judicial notice. 7 The Court also GRANTS all three motions to dismiss Plaintiff's First Amended 8 Complaint at ECF 24, ECF 32, and ECF 35. Because the deficiencies can be remedied, the 9 || Court also GRANTS Plaintiff leave to file an amended complaint. The second amended 10 || complaint must be filed by August 4, 2025. Plaintiff may not add additional claims or 11 || parties without leave to do so by the Court. To be clear, in the interest of justice, the Court 12 || intends to allow Plaintiff to take discovery before further amending his complaint. 13 14 IT IS SO ORDERED. 2 15 16 || Dated: May 6, 2025 LE+-e -———— □ NATHANAEL M. COUSINS 17 United States Magistrate Judge

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