Swadener v. State of California

• Court: District Court, S.D. California
• Decided: December 3, 2024
• Docket: 3:24-cv-00283
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 24-cv-00283-DMS-MSB LARRY WAYNE SWADENER,

12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS

14 STATE OF CALIFORNIA; CITY OF ESCONDIDO; et al., 15 Defendants. 16 17 18 Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint 19 pursuant to Federal Rule of Civil Procedure 12(b)(6). (Defendants’ Motion (“Defs.’ 20 Mot.”), ECF No. 20). Plaintiff has not filed an Opposition.1 For the following reasons, 21 Defendants’ Motion to Dismiss is GRANTED. 22 I. BACKGROUND 23 Plaintiff sues for alleged constitutional violations by the State of California, the City 24

25 26 1 Civil Local Rule 7.1(f)(3)(c) states that if an opposing party fails to file a response in opposition to a motion, that failure may constitute consent to the granting of a motion. While a district court may grant 27 an unopposed motion pursuant to a local rule which permits as much, Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995), the Court DECLINES to grant Defendants’ Motion to Dismiss on procedural grounds 28 1 of Escondido, and others for the impoundment of his vehicle when a police officer found 2 him driving with a suspended license on December 23, 2021.2 (Plaintiff’s Complaint 3 (“Compl.”), ECF No. 1). Along with his Complaint, Plaintiff filed a Motion for Leave to 4 Proceed In Forma Pauperis (“IFP”). (ECF No. 2). The Court addressed this Motion on 5 September 13, 2024. (IFP Order, ECF No. 6). After granting Plaintiff’s Motion to Proceed 6 IFP, the Court conducted a mandatory sua sponte review of Plaintiff’s claims pursuant to 7 28 U.S.C. § 1915(e)(2). (Id. at 2). This review led the Court to dismiss all claims against 8 the State of California on sovereign immunity grounds and Plaintiff’s Fifth and Eighth 9 Amendment claims against the remaining Defendants. (Id. at 3–4). At issue now are 10 Plaintiff’s claims premised on the Fourth and Fourteenth Amendments against Defendants 11 City of Escondido, Michael McGuinness, Ed Varso, Police Officer Aronson, Joseph Mata, 12 and A to Z Enterprises, Inc., which the Court, on a liberal reading of only Plaintiff’s 13 Complaint, found sufficient to survive § 1915(e)(2). (Id. at 4–5). 14 II. LEGAL STANDARD 15 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 16 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted”. 17 Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) “tests the legal 18 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive 19 a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, 20 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 21 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 22 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 23

24 25 2 While Plaintiff does not mention 42 U.S.C. § 1983 as the cause of action for the alleged constitutional violations, the Court will construe his Complaint as doing so. See Lopez v. Smith, 203 F.3d 1122, 1131 26 (9th Cir. 2000) (“We have noted frequently that the ‘rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant. Presumably unskilled in the law, the pro se litigant is far 27 more prone to making errors in pleading than the person who benefits from the representation of counsel.’”) (internal citation omitted). 28 1 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 2 “Determining whether a complaint states a plausible claim for relief will . . . be a context- 3 specific task that requires the reviewing court to draw on its judicial experience and 4 common sense.” Id. at 679. “Factual allegations must be enough to raise a right to relief 5 above the speculative level.” Twombly, 550 U.S. at 555. If Plaintiff “ha[s] not nudged 6 [his] claims across the line from conceivable to plausible,” the Complaint “must be 7 dismissed.” Id. at 570. 8 In reviewing the plausibility of a complaint on a motion to dismiss, a court must 9 “accept factual allegations in the complaint as true and construe the pleadings in the light 10 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 11 519 F.3d 1025, 1031 (9th Cir. 2008). But courts are not “required to accept as true 12 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 13 inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting 14 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 15 III. DISCUSSION 16 Defendants contend Plaintiff’s claims are time-barred and thus subject to dismissal. 17 (Defs.’ Mot. 5–7). The Court mostly agrees. 18 The running of a statute of limitations may be raised as an affirmative defense at the 19 Rule 12(b)(6) stage. Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 n.1 (9th 20 Cir. 1995) (“Because the question whether Supermail’s claim is barred by the statute of 21 limitations is not a jurisdictional question, it should have been raised through a Rule 22 12(b)(6) motion to dismiss for failure to state a claim, not a Rule 12(b)(1) motion to dismiss 23 for lack of jurisdiction. We therefore treat the dismissal as one under Rule 12(b)(6).”) 24 (emphasis in original); see also Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 25 1980) (“If the running of the statute is apparent on the face of the complaint, the defense 26 may be raised by a motion to dismiss.”). However, a motion to dismiss “can be granted 27 only if the assertions of the complaint, read with the required liberality, would not permit 28 the plaintiff to prove that the statute was tolled.” Id. If the “statute of limitations question 1 turns on factual issues that may be disputed,” it should be addressed at a later stage. 2 Vashisht-Rota v. Harrisburg Univ., 2023 WL 35216, at *5 (S.D. Cal. Jan. 4, 2023) (internal 3 quotation marks and citation omitted). 4 In § 1983 cases, courts apply state-law statute of limitations for personal injury 5 actions. City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113 (2005); see also 6 Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (“When, 7 as here, a federal civil rights statute does not include its own statute of limitations, federal 8 courts borrow the forum state’s limitations period for personal injury torts[.]”). The 9 applicable state law is the law of the “jurisdiction in which the claim arose.” Rose v. 10 Rinaldi, 654 F.2d 546, 547 (9th Cir. 1981). “Although state law determines the length of 11 the limitations period, federal law determines when a civil rights claim accrues.” Olsen v. 12 Idaho State Bd. of Med., 363 F.3d 916, 926 (9th Cir. 2004) (quoting Morales v. City of Los 13 Angeles, 214 F.3d 1151, 1153–54 (9th Cir. 2000)). “[A] claim accrues when the plaintiff 14 knows or has reason to know of the injury which is the basis of the action.” Id. (quoting 15 TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)) (alteration in original). For a § 16 1983 claim based on an unlawful search and seizure, “the accrual date is the date that the 17 wrongful act occurred.” Spitzer v. Aljoe, 2015 WL 1843787, at *6 (N.D. Cal. Apr. 6, 2015) 18 (internal quotation marks and citations omitted). When there is a seizure of property, the 19 wrongful act is “some meaningful interference with an individual’s possessory interests in 20 that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). 21 Because all relevant conduct occurred in Escondido, California’s statute of 22 limitations applies. (Compl. 5–6). “California’s statute of limitations for personal injury 23 actions is two years.” Spitzer, 2015 WL 1843787, at *6 (citing Cal. Civ. Proc. Code § 24 335.1). 25 Plaintiff’s claims against Defendants City of Escondido, Police Officer Aronson, 26 and Police Chief Ed Varso arise from the impoundment of his vehicle on December 23, 27 2021. (Compl. 5). “The Court finds that Plaintiff was aware or should have been aware 28 of the existence and source of his injury at the time . . . his car was towed and impounded.” 1 Wagner v. Peppler, 2009 WL 292199, at *3 (C.D. Cal. Jan. 16, 2009), report and 2 recommendation adopted, 2009 WL 311857 (C.D. Cal. Feb. 4, 2009). Plaintiff’s claim 3 thus accrued—and the statute of limitations began to run—on December 23, 2021. See 4 Spitzer, 2015 WL 1843787, at *7. Because Plaintiff filed his Complaint on February 7, 5 2024, more than two years later, “his claim[s] [are] barred by the applicable two-year 6 statute of limitations” under Cal. Civ. Proc. Code § 335.1. Wagner, 2009 WL 292199, at 7 *3. 8 As for Defendant Michael McGuinness, the City Attorney for Escondido, Plaintiff 9 alleges he spoke on the phone with Defendant McGuinness about the City’s administrative 10 complaint process on December 27, 2021. (Compl. 7). After the submission of several 11 complaints, Plaintiff alleges he never received a response. (Id.). He also attributes blame 12 to Defendant McGuinness for the use and enforcement of Cal. Veh. Code § 14602.6(a)(1), 13 which authorized the impoundment of his vehicle on December 23, 2021. (Id.). Plaintiff 14 filed his Complaint more than two years after both relevant dates. (Id. at 1). Even giving 15 Plaintiff the benefit of the doubt—that he did not immediately know of Defendant 16 McGuinness’ lack of response—he surely had notice by January 23, 2022, the end of his 17 vehicle’s thirty-day impoundment. Cal. Veh. Code § 14602.6(a)(1) (stating that length of 18 impoundment shall be thirty days); (Compl. 5) (noting that Cal. Veh. Code § 14602.6(a)(1) 19 was authority for impoundment). Plaintiff’s filing of his Complaint on February 7, 2024 20 occurred outside of the two-year window. It is thus subject to dismissal on statute of 21 limitations grounds. 22 Plaintiff’s claims against Defendant Joseph Mata result from his role as Post-Tow 23 Coordinator. (Id. at 6). Particularly, Plaintiff alleges Defendant Mata left him a voicemail 24 “sometime after” January 13, 2022 in which he told Plaintiff that his vehicle would remain 25 in impound until the end of the thirty-day period. (Id.). While Plaintiff did not provide an 26 exact date, this voicemail must have occurred before January 23, 2022, when the 27 impoundment ended. Accordingly, for the reasons above, Plaintiff’s claims against 28 Defendant Mata are time-barred. 1 Finally, Plaintiff sues Defendant A to Z Enterprises, Inc. because, on a notice of lien 2 sale, it “change[d] the listing of the legal owner’s name to someone other than this 3 Plaintiff”. (Id. at 9). Plaintiff does not provide a date for when this occurred. (See 4 generally id.). “From the pleadings and motions filed in this case, the Court is unable to 5 determine if and when Plaintiff received notice of the lien sale of his car in order to decide 6 whether these claims are timely.” Wagner, 2009 WL 292199, at *3. “Because of this 7 factual dispute, which cannot be resolved on the record currently before the Court,” 8 Defendant A to Z is not entitled to dismissal “on the basis that [Plaintiff’s] claim[s] [were] 9 untimely filed.” Id.; see also Vashisht-Rota, 2023 WL 35216, at *5. Plaintiff has not, 10 however, stated a claim upon which relief can be granted. He fails to allege sufficient 11 factual content to allow this Court to draw the inference that Defendant A to Z’s changing 12 of the name on his vehicle amounts to violations of the Fourth and Fourteenth 13 Amendments. Iqbal, 556 U.S. at 678. Indeed, he does not explain how this action relates 14 to the protections of the Fourth or Fourteenth Amendments at all. Therefore, the Court 15 similarly dismisses these claims. 16 In sum, the Court DISMISSES Plaintiff’s claims against all Defendants bringing 17 this Motion to Dismiss. 18 IV. LEAVE TO AMEND 19 When a court grants a motion to dismiss a complaint, it must then decide whether to 20 grant leave to amend. Leave to amend “shall be freely given when justice so requires”. 21 Fed. R. Civ. P. 15(a). “[T]his policy is to be applied with extreme liberality.” Morongo 22 Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). A court should 23 grant leave to amend where there is no (1) “undue delay”, (2) “bad faith or dilatory motive”, 24 (3) “undue prejudice to the opposing party” if amendment were allowed, or (4) “futility” 25 in allowing amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). Dismissal without 26 leave to amend is proper only if it is clear that “the complaint could not be saved by any 27 amendment.” Intri-Plex Techs. v. Crest Grp., Inc., 499 F.3d 1048, 1056 (9th Cir. 2007). 28 However, “[a] district court’s discretion to deny leave to amend is particularly broad where 1 || the plaintiff has previously amended.” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 2 Cir. 2013) Gnternal quotation marks and citation omitted). 3 Here, the Court GRANTS Plaintiff leave to amend all his claims. His time-barred 4 ||claims are subject to leave to amend so Plaintiff has an opportunity to allege whether an 5 ||exception to the statute of limitations—such as statutory tolling, equitable tolling, waiver, 6 || or estoppel—applies. Spitzer, 2015 WL 1843787, at *7 (“In caution, the Court permitted 7 Plaintiffs an opportunity for supplemental briefing to explain why their seizure claim 8 || against Officer Martinez is timely, or otherwise excepted, such as through statutory tolling, 9 || equitable tolling, waiver, or estoppel.”). He may also amend his claims against Defendant 10 || A to Z because the deficiencies in his Complaint may be curable. Lopez, 203 F.3d at 1135 11 ||(‘As the majority points out, our decisions for years have held that in this setting the pro 12 ||se litigant must be given notice of the deficiencies in his complaint and an opportunity to 13 |}amend the complaint to overcome the deficiency unless it clearly appears from the 14 || complaint that the deficiency cannot be overcome by amendment.”) (Rymer, J. concurring) 15 || Gnternal quotation marks and citation omitted). 16 □□□ CONCLUSION AND ORDER 17 For the reasons explained above, the Court GRANTS Defendants’ Motion to 18 || Dismiss Plaintiff's Complaint with leave to amend. Within forty-five (45) days of the date 19 this Order, Plaintiff may file a First Amended Complaint. 20 IT IS SO ORDERED. 21 22 || Dated: December 3, 2024 2» 23 jn Yn « 24 Hon. Dana M. Sabraw, Chief Judge 25 United States District Court 26 27 28