Bonilla v. California Highway Patrol

1 IN THE UNTED STATES DISTRICT COURT [2] 3 FOR THE EASTERN DISTRICT OF CALIFORNIA [4] 5 GUILLERMO BONILLA, SANDRA ) 2:16-cv-01742 LEK 6 AMAYA BONILLA, ) 7 ) 8 Plaintiffs, ) 9 ) 10 vs. ) 11 ) 12 CALIFORNIA HIGHWAY PATROL AN ) 13 AGENEY OF THE STATE OF ) 14 CALIFORNIA; OFFER MCKENZIE ) 15 AND SGT. PETERSON and DOES 1 ) 16 TO 50, ) 17 ) 18 Defendants. ) 19 ______________________________) [21] 22 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 23 Before the Court is Defendants California Highway 24 Patrol (“Highway Patrol”) and Muriel McKenzie’s (“McKenzie” and 25 collectively “Defendants”) Motion for Summary Judgment 26 (“Motion”), filed on January 16, 2019. [Dkt. no. 72.] 27 Plaintiffs Guillermo Bonilla and Sandra Amaya Bonilla 28 (“Plaintiffs”) filed their memorandum in opposition on 29 February 26, 2019, and Defendants filed their reply on March 12, 30 2019. [Dkt. nos. 83, 90.] The Court finds this matter suitable 31 for disposition without a hearing pursuant to L.R. 230(g) of the 32 Local Rules of the United States District Court for the Eastern 33 District of California (“Local Rules”). Defendants’ Motion is 34 hereby granted for the reasons set forth below. 1 BACKGROUND 2 I. Underlying Facts 3 The instant case arises out of the Highway Patrol’s 4 seizure of Plaintiffs’ community property, a 2000 utility 5 flatbed, with a vehicle identification number (“VIN”) ending in 6 4008 (“the Flatbed”), and a 2005 Freightliner Truck, with a VIN 7 ending in 2164 (“the Truck”). [Decl. of Sandra Amaya Bonilla in 8 Opp. to Defs.’ Motion for Summary Judgment (“S. Bonilla Decl.”), 9 filed 2/26/19 (dkt. no. 85), at ¶ 3.] Prior to the events in 10 question, the Truck had already been sold to Marco Tulio Osorio 11 Ochoa (“Osorio”) for $25,000, [id. at ¶ 4,] and the Flatbed was 12 going to be leased to a third party, [id. at ¶ 11]. 13 A. The Impoundment 14 On August 27, 2014, Highway Patrol Officer Lance Ward 15 (“Ward”) was working at the truck scales in Antelope, California 16 (“Antelope Scales”) as a commercial enforcement officer, when he 17 observed the Truck towing the Flatbed in the loaded lane. 18 [Motion, Separate Statement of Undisputed Material Facts in 19 Supp. of Motion for Summary Judgment (“Defs.’ SOF”), filed 20 1/16/19 (dkt. no. 72-1), at ¶¶ 6-7; Pltfs.’ Response to Defs.’ 21 Separate Statement of Undisputed Facts in Opp. to Defs.’ Motion 22 for Summary Judgment (“Pltfs.’ Responsive SOF”), filed 2/26/19 23 (dkt. no. 87), at ¶¶ 6-7 (admitting Defs.’ ¶¶ 6-7).] Ward has 24 been a commercial enforcement officer since 2008 and, in that 1 position, he inspects commercial vehicles for compliance with 2 the California Vehicle Code and other safety standards. He must 3 therefore be familiar with the California Vehicle Code’s 4 provisions regarding motor carriers of property. [Defs.’ SOF, 5 Exh. 2 (Decl. of Lance Ward in Supp. of Motion for Summary 6 Judgment (“Ward Decl.”)) at ¶ 2.] 7 Any motor carrier of property is subject to inspection 8 by the Highway Patrol to ensure that the carrier is operating 9 safely on the California highways. [Defs.’ SOF at ¶¶ 1-2; 10 Pltfs.’ Responsive SOF at ¶¶ 1-2.] The parties also agree that 11 motor carriers must have proof of a permit issued by the 12 California Department of Motor Vehicles (“DMV”). A motor 13 carrier permit is required for a vehicle that either has three 14 axels, weighs ten-thousand pounds or more, or has a total length 15 of more than forty feet. [Defs.’ SOF at ¶¶ 3-4; Pltfs.’ 16 Responsive SOF at ¶¶ 3-4.] 17 Defendants contend that the Truck and Flatbed required 18 a motor carrier permit, [Defs.’ SOF at ¶ 5,] but Plaintiffs 19 argue a motor carrier permit was not required because the Truck 20 was not a “commercial vehicle” as defined under Cal. Veh. Code 21 § 260, [Pltfs.’ Responsive SOF at ¶ 5]. Plaintiffs assert the 22 Truck was not a hired vehicle, was not performing any commercial 23 transport, and it had single-trip permit for August 27, 2014 24 (“Trip Permit”). [S. Bonilla Decl. at ¶ 7.] 1 Ward directed the driver of the Truck to pull over 2 because: the Truck was not displaying motor carrier 3 identification numbers, in violation of Cal. Veh. Code 4 § 34507.5; the Truck had a cracked windshield, in violation of [5] Cal. Veh. Code § 26710 ; the Truck was not displaying a company 6 name, in violation of Cal. Veh. Code § 27900 ; and there was 7 loose gravel, oil, and gas on top of the Flatbed, in violation 8 of Cal. Veh. Code § 24002 (b). [Ward Decl. at ¶ 4.] When asked, 9 the driver of the Truck, James Carradine (“Carradine”),1 provided 10 an expired driver’s license, in violation of Cal. Veh. Code 11 § 12951(a), and had no proof of insurance, in violation of Cal. 12 Veh. Code § 16028(a). [Ward Decl. at ¶ 4.] Carradine disputes 13 Ward’s statements about the gravel, oi and gas, driver’s 14 license, and proof of insurance. [Carradine Decl. at ¶¶ 7-9.] 15 Ward determined the Truck was registered to Rebel 16 Steel Trucking (“Rebel Steel”), and the registration had been 17 expired for more than six months. He also determined Rebel 18 Steel did not have a motor carrier permit for the Truck. [Ward 19 Decl. at ¶ 5.] Carradine told Ward that he was the owner of JC 20 Trucking and that its carrier permit number was 213661, but Ward 21 determined that the DMV had not issued permit number 213661 to 1 Carradine was previously employed by Plaintiffs as a driver. [Pltfs.’ SOF, Decl. of James Carradine in Opp. to Defs.’ Motion for Summary Judgment (“Carradine Decl.”) at ¶ 2.] 1 JC Trucking, nor had the DMV issued any motor carrier permit to 2 JC Trucking. [Id.] Ward also determined that the license plate 3 displayed on the Truck was assigned to another vehicle, and the 4 license plate actually assigned to the Truck was not being 5 displayed. [Id. at ¶ 6.] Plaintiffs deny there was a false 6 license plate on the Truck, and they assert the Trip Permit 7 allowed the Truck to be driven from one specified location to 8 another, without displaying a special license plate. 9 [S. Bonilla Decl. at ¶ 7.] Sandra Bonilla states that, on 10 August 27, 2014, the Truck was displaying the Trip Permit, a 11 “Not for Hire” sign, and “[t]he only license plate that may have 12 been on the Truck was a Federal license plate for the Truck 13 issued by the United States Government.” [Id.] Plaintiffs 14 assert these were “easily visible,” [id.,2] and the Highway 15 Patrol “knew or should have known that the Truck was not for 16 hire and was being moved only for purpose of a sale that had 17 already occurred,” [id. at ¶ 15]. In addition, Guillermo 18 Bonilla called Carradine and spoke to Ward, who used Carradine’s 19 cellular phone. Guillermo Bonilla told Ward the Truck had not 20 been hired and was not being used commercially. He also told 21 Ward about the Trip Permit. [Decl. of Guillermo Bonilla in Opp. 2 Carradine has given statements that are similar to those in paragraphs 6 and 7 of the S. Bonilla Declaration. See Carradine Decl. at ¶ 5. 1 to Defs.’ Motion for Summary Judgment (“G. Bonilla Decl.”), 2 filed 2/26/19 (dkt. no. 84), at ¶¶ 3-4.] 3 According to Ward, the Truck’s assigned license plate 4 had a registration which had been expired since December 31, 5 2012. Thus, the Truck was in violation of Cal. Vehicle Code 6 § 4000(a). [Ward Decl. at ¶ 6.] Ward and Highway Patrol 7 Vehicle Inspection Specialist Schmitz inspected the Truck and 8 Flatbed and noted other violations of the California Vehicle 9 Code, including: a “damaged or discolor[ed] windshield”; the 10 lack of a fire extinguisher in the Truck; and an illegible 11 emergency air dash knob. [Id. at ¶ 7.] Carradine states he did 12 not notice any damage or discoloration in the Truck’s 13 windshield. Further, the Truck did have a fire extinguisher, 14 other safety equipment, and a functional air dash knob at the 15 time of the impoundment. [Carradine Decl. at ¶¶ 11-13.] 16 Based on his observations, Ward deemed the Truck and 17 Flatbed to be “out of service and not safe for operation on the 18 roadway,” and he “used [his] discretionary authority” to impound 19 the Truck and Flatbed, pursuant to Cal. Veh. Code §§ 22651 (o) 20 and 34660(d). [Ward Decl. at ¶ 8.] Plaintiffs dispute many of 21 Ward’s observations, and Plaintiffs assert that, if there were 22 any violations of the Motor Vehicle Code, the violations would 23 have been “minor or technical violations” that could have been 24 addressed with a citation, instead of impounding the Truck and 1 Flatbed. S. Bonilla Decl. at ¶ 7; see also Carradine Decl. at 2 ¶ 5. 3 Rincon Towing took possession of the Truck and 4 Flatbed, and Carradine received a copy of the paperwork. [Ward 5 Decl. at ¶ 9.] According to Guillermo Bonilla, Rincon Towing 6 drove the Truck and Flatbed from the Antelope Scales to its tow 7 yard because Rincon Towing did not have a vehicle available that 8 could tow the Truck and Flatbed.3 [G. Bonilla Decl. at ¶ 3.] 9 The parties agree that, at the time of the 10 impoundment, Sandra Bonilla owned the Truck, and Guillermo 11 Bonilla, who is also the sole owner of W Financial 12 Repo/Collections, owned the Flatbed.4 [Defs.’ SOF at ¶¶ 33-34; 13 Pltfs.’ Responsive SOF at ¶¶ 33-34.] According to Ward, he 14 never communicated with Plaintiffs regarding either the 15 August 27, 2014 inspection or the impoundment. [Ward Decl. at 16 ¶ 10.] Neither Plaintiffs nor anyone else ever provided Ward 17 with evidence that the Truck and Flatbed were covered by a motor 18 vehicle carrier permit which was valid on August 27, 2014, nor 3 Carradine states he saw someone from Rincon Towing drive the Truck and Flatbed from the Antelope Scales. [Carradine Decl. at ¶ 6.] 4 Defendants’ SOF and Plaintiffs’ Responsive SOF refer to the entity as “W Financial Repo/Collections,” [Defs.’ SOF at ¶ 34 ; Pltfs.’ Responsive SOF at ¶ 34,] but during Guillermo Bonilla’s deposition, the entity was referred to as “W Financial/Repo Collectors.” [Defs.’ SOF, Exh. 4 (trans. excerpt of G. Bonilla’s 11/1/18 depo. (“G. Bonilla Depo.”)) at 45.] 1 was he provided with evidence that either the Truck or the 2 Flatbed had a vehicle registration that was valid on August 27, 3 2014. [Id. at ¶¶ 11-12.] 4 According to Plaintiffs, the Truck and Flatbed 5 received a Highway Patrol citation two or three days prior to 6 August 27, 2014. Carradine took the Truck and Flatbed to the 7 Antelope Scales on August 27, 2014 to have the Highway Patrol 8 resolve the citation so that the Truck could be delivered to 9 Osorio.5 All other citations on the Truck had been resolved 10 prior to August 27, 2014. See S. Bonilla Decl. at ¶ 5; 11 Carradine Decl. at ¶¶ 3, 10-11. Carradine does not remember the 12 name of the Highway Patrol officer who issued the citation that 13 Carradine was trying to resolve on August 27, 2014 14 (“Officer X”). According to Carradine, Officer X did not find 15 any damage or discoloration in the Truck’s windshield when he 16 issued the citation. [Carradine Decl. at ¶¶ 10-11.] Officer X 17 also told Carradine not to display a company name or identifying 18 numbers on the Truck because that would make it appear that the 19 Truck was doing business or being used for commercial purposes. 20 Officer X gave that advice because Officer X knew the truck had 5 The citation was issued because the Truck’s air lines had “a kink in them, and the kink needed to be fixed because that was a safety issue even for a one-day Trip Permit for the truck.” [Carradine Decl. at ¶ 16.] That was the only violation that Carradine was attempting to resolve when he went to the Antelope Scales on August 27, 20014. [Id.] 1 been sold and was merely being transported to the buyer. [Id. 2 at ¶ 14.] 3 Plaintiffs assert the Highway Patrol “and many of its 4 officers at the Antelope Scales had often targeted and harassed 5 trucks and vehicles belonging to [Plaintiffs] due to the ill 6 will that the [Highway Patrol] officers had toward [Plaintiffs] 7 and [their] employees.” S. Bonilla Decl. at ¶ 6; G. Bonilla 8 Decl. at ¶ 7; see also Carradine Decl. at ¶ 4 (“From my own 9 experience, the [Highway Patrol] and its officers at the 10 Antelope Scales had consistently targeted and harassed trucks 11 and vehicles belonging to the Bonillas due to the ill will that 12 the CHP officers had toward Plaintiff Guillermo Bonilla and his 13 employees.”). 14 According to Carradine, on August 27, 2014, after he 15 entered the Highway Patrol office at the Antelope Scales, but 16 before Ward inspected the Truck, “the first thing that Officer 17 Ward said to [Carradine] . . . were words to the effect that 18 ‘that’s Bonilla’s truck and I’m going to have it towed’.” 19 [Carradine Decl. at ¶ 4.] After Ward said that, he “started 20 giving [Carradine] a real hard time about the Truck and the 21 Flatbed,” and he told Carradine he was going to impound them, 22 which he did later that day. [Id.] Carradine also states 23 Officer X was at the Antelope Scales on August 27, 2014, and 24 Ward called Officer X to the Truck before the impoundment. 1 After the impoundment, Officer X drove Carradine to the bus 2 station. [Id. at ¶ 15.] During that ride, Officer X said, 3 “what Officer Ward was doing was ‘overboard’” and, if Officer X 4 “had known what Officer Ward was doing, he would not have come 5 out to the truck” when Ward called him. [Id.] Based on these 6 statements, Carradine believes Officer X “strongly disapproved 7 of what Officer Ward was doing because it was abusive and 8 wrongful conduct.” [Id.] 9 B. Release Attempts 10 Sandra Bonilla contacted Rincon Towing to try to 11 obtain the release of the Truck and Flatbed, and Rincon Towing 12 referred her to McKenzie to obtain authorization for the 13 release. According to Sandra Bonilla, McKenzie said that, in 14 order for the Truck and Flatbed to be released, Sandra Bonilla 15 had to obtain a motor carrier permit and repair the violations 16 that the Truck was cited for. Sandra Bonilla obtained the 17 permit and purchased the parts necessary for the repairs. When 18 Sandra Bonilla attempted to arrange to for the repairs to be 19 made to the Truck inside Rincon Towing’s yard, Rincon said she 20 had to obtain McKenzie’s authorization. Sandra Bonilla 21 contacted McKenzie, who refused to authorize the repairs, but 22 did not provide an explanation for the refusal. [S. Bonilla 23 Decl. at ¶¶ 8-9.] According to Guillermo Bonilla, when he 24 explained to McKenzie that Rincon Towing was not allowing 1 Plaintiffs to repair the Truck in the tow yard, McKenzie “said 2 words to the effect, ‘Forget about the repairs, get me a current 3 motor carrier permit and I will release the Truck’.” 4 [G. Bonilla Decl. at ¶ 10.] He delivered “a copy of Sandra 5 Bonilla’s current and valid motor carrier permit for Officer 6 McKenzie” at the Highway Patrol office, but McKenzie never 7 attempted to contact them after that. [Id.] 8 Sandra Bonilla asserts McKenzie’s refusal to authorize 9 repairs in the tow yard made it impossible to obtain the release 10 of the Truck and Flatbed. Sandra Bonilla also contends there 11 was no legal basis to require the completion of repairs prior to 12 release, [S. Bonilla Decl. at ¶ 9,] and the Highway Patrol “knew 13 or should have known that the Truck was not . . . being moved 14 . . . for any reasons that required repairs, current 15 registration or permits,” [id. at ¶ 15]. 16 Plaintiffs showed McKenzie a current motor carrier 17 permit,6 but McKenzie refused to authorize the release of the 18 Truck and Flatbed. According to Sandra Bonilla, McKenzie said 19 Sandra Bonilla had to obtain Defendant Sergeant Peterson’s 20 (“Peterson”) authorization for the release, but Peterson told 6 The permit that Sandra Bonilla refers to in paragraphs 8 and 10 appears to be another trip permit that permitted the Truck to be towed from the Rincon Towing yard to Osorio. See S. Bonilla Decl. at ¶ 16. 1 Sandra Bonilla she had to obtain McKenzie’s authorization.7 The 2 Highway Patrol eventually informed Sandra Bonilla by telephone 3 that it was not going to authorize the release of the Truck to 4 her. [Id. at ¶ 10.] Sandra Bonilla states the Highway Patrol 5 never gave her “a valid reason” why the Flatbed was not released 6 to her. [Id. at ¶ 11.] According to Sandra Bonilla, neither 7 McKenzie, Peterson, nor anyone else from the Highway Patrol ever 8 informed her that a current registration for each vehicle was 9 required to obtain the release of the Truck and Flatbed. Id. at 10 ¶¶ 12-13; see also G. Bonilla Decl. at ¶¶ 6, 9-10 (similar 11 statements by Guillermo Bonilla that he was never so informed). 12 McKenzie states Plaintiffs never provided her with any 13 documents regarding the Truck or Flatbed, nor did Plaintiffs, or 14 anyone else, provide her with information showing that the Truck 15 and Flatbed had valid registrations at the time of the 16 impoundment or afterward. Further, no one advised McKenzie that 17 Plaintiffs provided proof of registration for the Truck and 18 Flatbed to the Highway Patrol. [Defs.’ SOF, Exh. 1 (Decl. of 19 Muriel McKenzie in Supp. of Motion for Summary Judgment 7 Peterson has not been served and has not appeared in this case. Defendants’ motion to dismiss Plaintiffs’ claims against Peterson, [filed 1/29/19 (dkt. no. 75),] will be addressed in a separate order. 1 (“McKenzie Decl.”)) at ¶¶ 4-5.8] The parties agree that 2 Plaintiffs only spoke with McKenzie on the telephone. [Defs.’ 3 SOF at ¶ 31; Pltfs.’ Responsive SOF at ¶ 31.] 4 The parties also agree that: on October 20, 2014, 5 Rincon Towing sold the Truck to Cesar Cazarez for $2,500.00 and 6 Rincon Towing sold the Flatbed to Jose Jaime for $2,000.00;9 7 McKenzie did not authorize Rincon Towing to sell the Truck and 8 Flatbed; and she was not immediately advised that they had been 9 sold. [Defs.’ SOF at ¶¶ 35-37; Pltfs.’ Responsive SOF at ¶¶ 3510 37.] It is undisputed that: neither Plaintiffs nor anyone else 11 had a valid registration for the Truck from the date of the 12 impoundment to the date of the sale; the Truck’s registration 13 had been expired since December 31, 2012; neither Plaintiffs nor 14 anyone else had a valid registration for the Flatbed from the 15 date of the impoundment through November 12, 2014; and the 16 Flatbed’s registration had been expired since July 31, 2013. 17 [Defs.’ SOF at ¶¶ 38-42; Pltfs.’ Responsive SOF at ¶¶ 38-42.] 8 During the relevant period, McKenzie was employed by the Highway Patrol and served as its Motor Carrier Permit Officer. [McKenzie Decl. at ¶ 2.] Her duties included: issuing identification numbers to commercial motor carriers of property that operated in California; conducting follow-up inquiries regarding carriers that violated the permit requirements; and authorizing the impoundment of vehicles that the DMV confirmed had a suspended motor carrier permit. [Id.] 9 Sandra Bonilla believes the Truck and Flatbed were sold “at a lien sale.” [S. Bonilla Decl. at ¶ 14.] 1 II. This Action 2 Plaintiffs initiated this action in state court on 3 November 24, 2015, and the Highway Patrol removed the case on 4 July 25, 2016, based on federal question jurisdiction. [Notice 5 of Removal of Action; Under 28 U.S.C. § 1441 (a) (Federal 6 Question) (“Notice of Removal”), filed 7/25/16 (dkt. no. 1), 7 Exh. A (Complaint – Personal Injury, Property Damage, Wrongful 8 Death (“Complaint”)); Notice of Removal at ¶¶ 4-5.10] On 9 August 1, 2016, the Highway Patrol filed a motion to dismiss the 10 Complaint, which was granted in part and denied in part in a 11 January 9, 2017 order, which was amended on January 17, 2017 12 (“1/17/17 Order”). [Dkt. nos. 7, 21, 23.11] Plaintiffs filed 13 their First Amended Complaint (“Amended Complaint”) on March 16, 14 2017. [Dkt. no. 29.] 15 The Amended Complaint alleges the following claims: a 16 negligence claim against Defendants and Peterson (“Count I”); an 17 intentional tort claim against Defendants and Peterson 18 (“Count II”); a claim against Defendants and Peterson alleging 19 violations of the mandatory duties imposed by Cal. Veh. Code 20 §§ 22651 and 34660 (“Count III”); and a 42 U.S.C. § 1983 claim 10 McKenzie had not been served at the time the Highway Patrol removed the action. [Notice of Removal at ¶ 3.] 11 The 1/17/17 Order is also available at 2017 WL 202550 . 1 against McKenzie and Peterson alleging violation of Plaintiffs’ 2 Fourteenth Amendment right to due process (“Count IV”). 3 In the instant Motion, Defendants argue they are 4 entitled to summary judgment on all of Plaintiffs’ claims 5 because all the claims are based upon the theory that §§ 22651 6 and 34660 required the Highway Patrol to release the Truck and 7 the Flatbed to Plaintiffs. Defendants assert release of the 8 Truck and Flatbed was not mandatory because neither vehicle had 9 a valid registration at the time of the impoundment, nor did 10 Plaintiffs obtain valid registrations for the vehicles after the 11 impoundment. Further, Defendants argue they have immunity as to 12 Plaintiffs’ state law claims under various provisions of the 13 California Government Code, including immunity for discretionary 14 decisions and immunity for acts or omissions occurring in the 15 execution or enforcement of state law. 16 As to Count IV, Defendants argue McKenzie cannot be 17 held liable for Ward’s decision to impound the Truck and 18 Flatbed, and they argue McKenzie cannot be held liable for the 19 decision not to release the Truck and Flatbed because there is 20 no evidence that Plaintiffs provided proof of valid 21 registration. Further, even if there was some potential 22 liability, McKenzie is entitled to qualified immunity. 1 DISCUSSION 2 I. Request to Name Ward as a Defendant 3 At the outset, this Court must address Plaintiffs’ 4 request for leave to name Ward as Defendant “DOE No. 1.” [Mem. 5 in Opp. at 21.] The request is denied because Plaintiffs’ 6 claims against the Doe Defendants named in the Amended Complaint 7 have already been dismissed. See Status (Pre-trial Scheduling) 8 Order, filed 2/9/18 (dkt. no. 53), at 1 (“This action, including 9 any counterclaims, cross-claims, and third party complaints is 10 hereby DISMISSED as to all DOE or other fictitiously-named 11 defendants.” (emphases in original)). 12 II. State Law Claims 13 As with Counts I, II, and III of the original 14 Complaint, Counts I, II, and III of the Amended Complaint allege 15 state law claims, to which state substantive law applies. See 16 1/17/17 Order, 2017 WL 202550 , at *2. Count I is based on both 17 the impoundment of the Truck and Flatbed and the refusal to 18 release them. See, e.g., Amended Complaint at ¶ 17 (“The 19 [Highway Patrol] and its agents, Officer McKenzie and Sgt. 20 Peterson had a legal duty to use due care when seizing and 21 refusing to release Plaintiff’s property.”). Count II also 22 appears to be based on both the impoundment and the seizure. 23 See id. at ¶¶ 20-21 (alleging, among the acts or omissions in 24 which “defendants negligently caused the damage to plaintiffs,” 1 that the Highway Patrol, “through its agents, acting within the 2 scope and employment as law enforcement officers of the [Highway 3 Patrol], seized” the Truck and Flatbed and the Highway Patrol 4 “and its agents refused to release the property”). Count III is 5 based upon the failure to release the Truck and the Flatbed. 6 See, e.g., id. at pg. 10, ¶ 23 (alleging the Highway Patrol “and 7 its agents’ . . . failure to release the property . . . 8 proximately caused Plaintiff’s financial loss”). 9 A. Claims Based on the Impoundment 10 1. McKenzie 11 Cal. Gov’t Code § 820 states: 12 (a) Except as otherwise provided by statute 13 (including Section 820.2), a public employee is 14 liable for injury caused by his act or omission 15 to the same extent as a private person. [16] 17 (b) The liability of a public employee 18 established by this part (commencing with 19 Section 814) is subject to any defenses that 20 would be available to the public employee if he 21 were a private person. [22] 23 Cal. Gov’t Code § 820.8 states, in pertinent part: “Except as 24 otherwise provided by statute, a public employee is not liable 25 for an injury caused by the act or omission of another person.” 26 Even supervisory personnel must have personal involvement in 27 order to be held liable under California law for the tortious 28 acts of their subordinates. M.B. ex rel. Beverly v. Cal. Dep’t 29 of Corr. & Rehab., No. 2:17-cv-2395 WBS DB, 2018 WL 4050743 , at 1 *7 (E.D. Cal. Aug. 23, 2018) (quoting Milton v. Nelson, 527 F.2d 2 1158, 1159 (9th Cir. 1975) (holding that under California law, 3 including § 820.8, a prison director, warden, and associate 4 warden could not be held vicariously liable for the actions of 5 their subordinates)), reconsideration granted in part on other 6 grounds, 2018 WL 5024093 , at *1 (Oct. 16, 2018). 7 There is no evidence in the instant case suggesting 8 that McKenzie was personally involved in the impoundment of the 9 Truck and Flatbed. Nor is there any evidence that: 1) McKenzie 10 had a supervisory role over Ward, or anyone else involved in the 11 impoundment; and 2) her acts as a supervisor were a proximate 12 cause of the impoundment. Cf. id. (stating that, in order to 13 survive a motion to dismiss, the plaintiff “must allege 14 sufficient facts to allege that [the defendant]’s own acts as a 15 supervisor proximately caused the injury” (citation omitted)). 16 Therefore, even when viewed in the light most favorable to 17 Plaintiffs,12 the evidence is insufficient to raise a genuine 18 issue of material fact as to the state law claims against 19 McKenzie based on the impoundment of the Truck and Flatbed, and 20 McKenzie is entitled to summary judgment as to those portions of 12 In ruling on a motion for summary judgment, “the judge must view the evidence in the light most favorable to the nonmoving party and make all reasonable inferences in favor of that party.” Eat Right Foods Ltd. v. Whole Foods Mkt., Inc., 880 F.3d 1109, 1118 (9th Cir. 2018) (citing Tolan v. Cotton, 134 S. Ct. 1861, 1866-68 (2014) (per curiam)). 1 Counts I and II. See Fed. R. Civ. P. 56(a) (“The court shall 2 grant summary judgment if the movant shows that there is no 3 genuine dispute as to any material fact and the movant is 4 entitled to judgment as a matter of law.”). 5 2. Highway Patrol 6 To the extent that Plaintiffs’ claims against the 7 Highway Patrol are based on the impoundment of the Truck and 8 Flatbed, Plaintiffs argue the Highway Patrol is liable for the 9 actions of Ward and others. Cal. Gov’t Code § 815.2 states: 10 (a) A public entity is liable for injury 11 proximately caused by an act or omission of an 12 employee of the public entity within the scope of 13 his employment if the act or omission would, 14 apart from this section, have given rise to a 15 cause of action against that employee or his 16 personal representative. [17] 18 (b) Except as otherwise provided by statute, a 19 public entity is not liable for an injury 20 resulting from an act or omission of an employee 21 of the public entity where the employee is immune 22 from liability. [23] 24 Further, Cal. Gov’t Code § 820.2 states: “Except as otherwise 25 provided by statute, a public employee is not liable for an 26 injury resulting from his act or omission where the act or 27 omission was the result of the exercise of the discretion vested 28 in him, whether or not such discretion be abused.” 29 Ward impounded the Truck and Flatbed on the grounds 30 that the Truck’s registration was expired and the lack of a 1 valid license.13 [Ward Decl. at ¶ 8.] Thus, they were impounded 2 pursuant to Cal. Veh. Code §§ 22651 (o)(1)(A) and 34660(d). 3 Section 22651 states, in pertinent part: 4 A peace officer, as defined in Chapter 4.5 5 (commencing with Section 830) of Title 3 of 6 Part 2 of the Penal Code, or a regularly employed 7 and salaried employee, who is engaged in 8 directing traffic or enforcing parking laws and 9 regulations, of a city, county, or jurisdiction 10 of a state agency in which a vehicle is located, 11 may remove a vehicle located within the 12 territorial limits in which the officer or 13 employee may act, under the following 14 circumstances: [15] 16 . . . . [17] 18 (o)(1) If a vehicle is found or operated 19 upon a highway, public land, or an offstreet 20 parking facility under any of the following 21 circumstances: [22] 23 (A) With a registration expiration 24 date in excess of six months before the 25 date it is found or operated on the 26 highway, public lands, or the offstreet 27 parking facility. [28] 29 (Emphasis added.) Similarly, § 34662(d) states, in pertinent 30 part: 13 Ward also describes a number of other violations, [Ward Decl. at ¶¶ 4-7,] and Plaintiffs have submitted testimony disputing those violations, see, e.g., Carradine Decl. at ¶¶ 1113. Even though there are genuine disputes of fact those purported violations, they are not discussed here because they are not material to Plaintiffs’ state law claims based on the impoundment of the Truck and Flatbed. See Eat Right, 880 F.3d at 1118 (“A material fact is one ‘that might affect the outcome of the suit under the governing law.’” (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 , 106 S. Ct. 2505 (1986))). 1 A member of the Department of the California 2 Highway Patrol may impound a vehicle or 3 combination of vehicles operated by a motor 4 carrier of property, when the vehicle or 5 combination of vehicles is found upon a highway, 6 any public lands, or an offstreet parking 7 facility and the motor carrier is found to be in 8 violation of this section or of subdivision (a) 9 of Section 34620. [11] Cal. Veh. Code § 34620 (a) establishes the requirements of a 12 registered motor carrier identification number and valid motor 13 carrier permit. 14 Because both § 22651(o)(1)(A) and § 34660(d) use the 15 term “may,” they allow state officials to make a discretionary 16 decision to impound a vehicle. Thus, under § 820.2, Ward cannot 17 be held liable under California state law for the decision to 18 impound the Truck and Flatbed, whether or not he abused that 19 discretion. Ward’s immunity from state law claims arising from 20 that decision also means that the Highway Patrol also cannot be 21 held liable for those state law claims. See § 815.2(b). Even 22 when viewed in the light most favorable to Plaintiffs, the 23 evidence is insufficient to raise a genuine issue of material 24 fact as to the state law claims against the Highway Patrol based 25 on the impoundment of the Truck and Flatbed, and the Highway 26 Patrol is entitled to summary judgment as to those portions of 27 Counts I and II. 1 B. Claims Based on the Refusal to Release 2 1. McKenzie 3 As to Count III and the portions of Counts I and II 4 based on the refusal to release the Truck and Flatbed, 5 Defendants argue the claims against McKenzie fail because the 6 decision not to release the vehicles was a discretionary 7 decision. Section 22651(o)(3) states, in pertinent part: 8 For the purposes of this subdivision, the vehicle 9 shall be released under any of the following 10 circumstances: [11] 12 (A) If the vehicle has been removed 13 pursuant to subparagraph (A), (B), or (C) of 14 paragraph (1), to the registered owner of, 15 or person in control of, the vehicle only 16 after the owner or person furnishes the 17 storing law enforcement agency with proof of 18 current registration and a valid driver’s 19 license to operate the vehicle. [20] 21 (Emphasis added.) Similarly, when a vehicle is impounded 22 pursuant to § 34660(d), 23 the vehicle shall be released to the registered 24 owner or authorized agent only after the 25 registered owner or authorized agent furnishes 26 the Department of the California Highway Patrol 27 with proof of current registration, a currently 28 valid driver’s license of the appropriate class 29 to operate the vehicle or combination of 30 vehicles, and proof of compliance with this 31 division. [32] 33 (Emphasis added.) Because both § 22651(o)(3)(A) and § 334660(d) 34 state that an impounded vehicle “shall be released” when the 35 described documentation is provided, the decision whether to 1 release an impounded vehicle is not a discretionary decision. 2 Section 820.2 therefore does not automatically exempt McKenzie 3 from liability for Plaintiffs’ claims arising from the refusal 4 to release the Truck and Flatbed after impoundment. 5 However, it is undisputed that neither the Truck nor 6 the Flatbed had a valid registration at any time from the time 7 that they were impounded until Rincon Towing sold them. See 8 Defs.’ SOF at ¶¶ 38-42; Pltfs.’ Responsive SOF at ¶¶ 38-42. 9 Thus, Plaintiffs did not provide the documentation that would 10 have made the release of the vehicles mandatory under 11 § 22651(o)(3)(A) and § 334660(d). Plaintiffs’ position is that 12 Defendants were negligent in their refusal to release the Truck 13 and Flatbed because Defendants never informed Plaintiffs that 14 current registrations were necessary. See S. Bonilla Decl. at 15 ¶¶ 12-13; G. Bonilla Decl. at ¶¶ 6, 9-10. 16 Under California law, “the well-known elements of any 17 negligence cause of action” are “duty, breach of duty, proximate 18 cause and damages.” Lockheed Martin Corp. v. Superior Court, 63 19 P.3d 913 , 919 (Cal. 2003) (citation and internal quotation marks 20 omitted). Plaintiffs assert “Defendants had a mandatory duty, 21 at a minimum, to inform” them that current registrations were 22 required to obtain the release of the Truck and the Flatbed. 23 [Mem. in Opp. at 13-14.] Plaintiffs, however, cite no legal 24 authority to support their position that Defendants had a duty 1 to inform Plaintiffs of the requirements for release that are 2 clearly stated in § 22651(o)(3)(A) and § 334660(d). Nothing in 3 the language of those statutes requires that notice of the 4 release requirements be given, apart from the notice provided in 5 the publicly available statutes themselves. While Plaintiffs’ 6 frustration with the situation is understandable, there is no 7 legal support for their position that McKenzie’s failure to 8 inform Plaintiffs of the requirements to obtain the release of 9 the Truck and Flatbed was negligent. Because Plaintiffs did not 10 satisfy the requirements of § 22651(o)(3)(A) and § 334660(d), 11 McKenzie did not have a mandatory duty to release the Truck and 12 Flatbed. Even viewing the record in the light most favorable to 13 Plaintiffs, there is insufficient evidence to raise a genuine 14 issue of material fact as to the state law claims against 15 McKenzie based on the refusal to release the Truck and Flatbed, 16 and McKenzie is entitled to summary judgment as to Count III and 17 the portions of Counts I and II based on the refusal to release 18 the Truck and Flatbed. 19 2. Highway Patrol 20 As noted in the 1/17/17 Order, Cal. Gov’t Code § 815 21 and the case law interpreting it require “a specific statute 22 declaring them to be liable, or at least creating some specific 23 duty of care[,]” in order for a public entity to be subject to 24 tort liability. 1/17/17 Order, 2017 WL 202550 , at *2 (emphasis 1 in 1/17/17 Order) (quoting Eastburn v. Reg’l Fire Prot. Auth., [2] 80 P.3d 656, 660 (Cal. 2003)). Because the specific statutes 3 relevant to this case, § 22651(o)(3)(A) and § 334660(d), did not 4 make the release of the Truck and Flatbed mandatory, there is no 5 specific statute that either rendered the Highway Patrol liable 6 for the refusal to release the Truck and Flatbed or created a 7 specific duty of care under the circumstances of this case. 8 Even viewing the record in the light most favorable to 9 Plaintiffs, there is insufficient evidence to raise a genuine 10 issue of material fact as to the state law claims against the 11 Highway Patrol based on the refusal to release the Truck and 12 Flatbed. The Highway Patrol is therefore entitled to summary 13 judgment as to Count III and the portions of Counts I and II 14 based on the refusal to release the Truck and Flatbed. 15 III. Section 1983 Claim 16 Count IV alleges a claim against McKenzie, pursuant to [17] 42 U.S.C. § 1983 , for violations of Plaintiffs’ Fourteenth 18 Amendment rights. Section 1983 states, in pertinent part: 19 Every person who, under color of any statute, 20 ordinance, regulation, custom, or usage, of any 21 State or Territory or the District of Columbia, 22 subjects, or causes to be subjected, any citizen 23 of the United States or other person within the 24 jurisdiction thereof to the deprivation of any 25 rights, privileges, or immunities secured by the 26 Constitution and laws, shall be liable to the 27 party injured in an action at law, suit in 28 equity, or other proper proceeding for 29 redress . . . . [1] 2 This district court has stated: 3 “The Fourteenth Amendment protects individuals 4 against the deprivation of liberty or property by 5 the government without due process. A section 6 1983 claim based upon procedural due process thus 7 has three elements: (1) a liberty or property 8 interest protected by the Constitution; (2) a 9 deprivation of the interest by the government; 10 (3) lack of process.” Portman v. County of Santa 11 Clara, 995 F.2d 898, 904 (9th Cir. 1993). [12] 13 Ciurar v. California, No. 2:20-cv-2089 JAM DB PS, 2021 WL 14 1222875, at *2 (E.D. Cal. Apr. 1, 2021). 15 A. Impoundment 16 Defendants acknowledge that the impoundment of a 17 vehicle constitutes a seizure for purposes of the Fourth 18 Amendment. [Mem. in Supp. of Motion at 13 (citing Miranda v. 19 City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005)).] 20 However, this district court has recognized: 21 To be held liable under Section 1983, each 22 defendant must have personally participated in 23 the deprivation of the plaintiff’s rights. 24 Ashcroft v. Iqbal, 556 U.S. 662 (2009); Jones v. 25 Williams, 297 F.3d 930, 934 (9th Cir. 2002). The 26 statute requires an actual connection or link 27 between the actions of the defendants and the 28 deprivation alleged to have been suffered by the 29 plaintiff. See Monell v. Department of Social 30 Services, 436 U.S. 658 (1978); Rizzo v. Goode, [31] 423 U.S. 362 (1976). The Ninth Circuit has held 32 that “[a] person ‘subjects’ another to the 33 deprivation of a constitutional right, within the 34 meaning of section 1983, if he does an 35 affirmative act, participates in another’s 36 affirmative acts or omits to perform an act which 37 he is legally required to do that causes the 1 deprivation of which complaint is made.” Johnson 2 v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). [3] 4 Vivanco v. Cal. Dep’t of Corr. & Rehab., Case No.: 1:17-cv5 00434-BAM, 2019 WL 2764397 , at *5 (E.D. Cal. July 2, 2019) 6 (alteration in Vivanco), aff’d, 817 F. App’x 492 (9th Cir. 7 2020). There is no evidence in the record which raises a 8 genuine issue of material fact as to the issue of whether 9 McKenzie personally participated in the impoundment of the Truck 10 and Flatbed. Nor is there any evidence which raises a genuine 11 issue of material fact as to the issue of whether McKenzie had 12 supervisory authority over anyone involved in the impoundment. 13 Cf. id. at *7 (discussing when a supervisor can be held liable, 14 even without personal participation in the constitutional 15 deprivation). McKenzie is therefore entitled to summary 16 judgment as to the portion of Count IV based on the impoundment 17 of the Truck and Flatbed. 18 B. Refusal to Release 19 The issue of whether Plaintiffs had a constitutionally 20 protected right to the release of the Truck and Flatbed is 21 similar to the issue of whether a plaintiff has a 22 constitutionally protected right to receive a government 23 benefit, like a license or a permit. In that context, this 24 district court has stated: 25 “Property interests are not created by the 26 Constitution but ‘by existing rules or 1 understandings that stem from an independent 2 source such as state law . . . .’” Thornton v. 3 City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 4 2005) (quoting [Bd. of Regents of State Colls. 5 v.] Roth, 408 U.S. [564,] 577 [(1972)]). “In 6 some instances, a person can have a 7 constitutionally protected property interest in a 8 government benefit, such as a license or permit.” 9 [Gerhart v. Lack Cnty.], 637 F.3d [1013,] 1019 10 [(9th Cir. 2011)] (citing Roth, 408 U.S. at 577). 11 But a plaintiff who asserts a property interest 12 in a permit or other government benefit cannot 13 simply demonstrate that he had a “unilateral 14 expectation” or an “abstract need or desire” for 15 that benefit; rather, he must demonstrate “a 16 legitimate claim of entitlement to it.” Roth, 17 408 U.S. at 577 (emphasis in original). [18] 19 Whether plaintiffs have an “expectation of 20 entitlement sufficient to create a property 21 interest . . . depend[s] largely upon the extent 22 to which the statute contains mandatory language 23 that restricts the discretion of the 24 decisionmaker.” Allen v. City of Beverly Hills, [25] 911 F.2d 367, 370 (9th Cir. 1990) (quoting 26 Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir. 27 1980)). “[A]n entitlement to a government permit 28 exists when a state law or regulation requires 29 that the permit be issued once certain 30 requirements are satisfied.” Gerhart, 637 F.3d 31 at 1019 (citing Groten v. California, 251 F.3d 32 844, 850 (9th Cir. 2001)). By contrast, if the 33 decision to grant a permit or other benefit is 34 discretionary, plaintiffs have no property 35 interest in that benefit. Doyle v. City of 36 Medford, 606 F.3d 667, 672 (9th Cir. 2010) 37 (citing Jacobson, 627 F.3d [sic] at 180). [38] 39 Anselmo v. Mull, Civ. No. 2:12–01422 WBS EFB, 2013 WL 5817560 , 40 at *8–9 (E.D. Cal. Oct. 29, 2013) (emphasis and some alterations 41 in Anselmo). 42 Because Plaintiffs did not satisfy the requirements of 43 § 22651(o)(3)(A) and § 334660(d), they did not have “a 1 legitimate claim of entitlement to” the release of the Truck and 2 Flatbed under the circumstances of this case. See Roth, 408 3 U.S. at 577. Plaintiffs’ inability to establish a protected 4 property right in the release of the Truck and Flatbed is fatal 5 to their § 1983 claim against McKenzie. McKenzie is therefore 6 entitled to summary judgment as to the portion of Count IV based 7 on the refusal to release the Truck and Flatbed. 8 CONCLUSION 9 On the basis of the foregoing, Defendants’ Motion for 10 Summary Judgment, filed January 16, 2019, is HEREBY GRANTED. 11 There being no remaining claims against the Highway Patrol or 12 McKenzie, the Clerk’s Office is DIRECTED to: 1) terminate 13 McKenzie as a party immediately; and 2) terminate the Highway 14 Patrol as a party thirty days from the filing of this order. 15 The Highway Patrol will remain listed as a party during that 16 time because of its obligations under other orders issued by 17 this Court. 18 IT IS SO ORDERED. [19] nnn nnn enn ne nn nnn on nn nnn ee ne ENO EEE 1 DATED AT HONOLULU, HAWAII, April 21, 2021. 2 gente OI £ & vo 3 = = % is! Leslie E. Kobayashi 4 Leslie E. Kobayashi United States District Judge 6 a, I ee 7 "ey oF wet [40] Al 42 GUILLERMO BONILLA, ET AL. VS. CALIFORNIA HIGHWAY PATROL, ET AL; 43 1:16-CV-01742 LEK; ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY 44 JUDGMENT