Cornejo v. Tumlin

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS SECOND AMENDED COMPLAINT

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

In February of 2021, the Court granted in part and dismissed in part motions to dismiss by various defendants in this case, which stems from the towing of pro se Plaintiffs Marimar Cornejo and Jamil Bey's 1998 Toyota Camry in February of 2020. See Order Dismissing (dkt. 32). The Court dismissed some claims with prejudice-including the state law claims, the Fourth Amendment claim against Defendant the City and County of San Francisco (CCSF), the Fourteenth Amendment claim against all defendants, and the section 1985 claim against Defendants AutoReturn, Alvah, and PG&E. Id. at 19. The Court dismissed with leave to amend Plaintiffs' Fourth Amendment claim against Defendants Alvah and P&E, instructing Plaintiffs “to attempt to plausibly allege that said defendants are state actors for the purpose of Section 1983 liability.” Id. The Court did not dismiss the Fourth Amendment claim against AutoReturn or the Eighth Amendment claim against AutoReturn and CCSF. Id. at 19 n.8.

Plaintiffs have now filed a Second Amended Complaint, see SAC, and defendants have filed four new motions to dismiss, see CCSF MTD (dkt. 42); AutoReturn MTD (dkt. 41); Alvah MTD (dkt. 44); PG&E MTD (dkt. 45). As explained below, the Court finds this matter suitable for resolution without oral argument, pursuant to Local Civil Rule 7-1(b), VACATES the hearing currently set for October 28, 2021, and again GRANTS in part and DENIES in part defendants'

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motions.

I. LEGAL STANDARD

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be dismissed for failure to state a claim upon which relief may be granted. Dismissal may be based on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (quoting another source). A complaint must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When evaluating a motion to dismiss, the Court “must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). “[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

Where the plaintiffs are pro se, the Court has an obligation to construe the pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc). However, the Court may not supply essential elements of a claim that are not pled. Pena v. Gardner, 976 F.2d 469, 471-72 (9th Cir. 1992). Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss. Id.

If a court does dismiss a complaint for failure to state a claim, it should “freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). A court nevertheless has discretion to deny leave to amend due to “undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008)

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(alteration in original) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

II. DISCUSSION

This Order pertains to (A) CCSF's motion to dismiss, (B) the AutoReturn Defendants' motion to dismiss, (C) the Alvah Defendants' motion to dismiss, and (D) PG&E's motion to dismiss.

A. CCSF Motion

Defendant CCSF moves to dismiss Plaintiffs' Fourth Amendment claim, and moves to dismiss Defendants Jeffrey Tumlin and the San Francisco Municipal Transportation Agency (SFMTA). See generally CCSF MTD.

1. Fourth Amendment

The Court's February 2021 order dismissed the Fourth Amendment claim against CCSF with prejudice. See Order Dismissing at 19. Res judicata prevents Plaintiffs from bringing the same claim against these same defendants. See Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713-14 (9th Cir. 2001). The Fourth Amendment claim against CCSF is therefore no longer in the case.

2. Tumlin

CCSF argues that Plaintiffs only sued Tumlin in his official capacity, which is the same as suing the city itself, and so the Court should dismiss Tumlin. CCSF MTD at 5. CCSF is correct that the Complaint's caption names Tumlin in his official capacity. See SAC at 1 “JEFFREY TUMLIN, officially as Director of Transportation of the San Francisco Municipal Transportation agency”). An official-capacity suit is the equivalent of bringing suit against the government itself. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity suits . . . ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.'” (quoting Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). However, elsewhere in the Complaint, Tumlin is named in both “his individual and official Capacity.” See SAC ¶ 6; see also id. ¶¶ 43, 44 (alleging that Tumlin ratified the wrongful action); ¶ 74 (“In addition, Jeffrey Tumlin could have abated the excessive fees . . . but he refused to abate the unconstitutional practice violating his oath of office, and making himself liable in his

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individual capacity.”). CCSF's argument for dismissing the case against Tumlin, premised on Tumlin only being named in his official capacity, fails.

3. SFMTA

Although the Complaint names SFMTA as a defendant, see SAC at 1, ¶¶ 5, 7, CCSF argues that SFMTA is not an independent public corporation with the power to sue or be sued. CCSF MTD at 5. The Court agrees. See Vance v. County of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996 (“‘Naming a municipal department as a defendant is not an appropriate means of pleading a § 1983 action against a municipality.'”) (quoting Stump v. Gates, 777 F.Supp. 808, 816 (D. Colo. 1991); cf. Hervey v. Estes, 65 F.3d 784, 792 (intergovernmental association is not a municipality or local government and is only subject to suit if the parties that created it “intended to create a separate legal entity.”). SFMTA is not a proper defendant in this case and is therefore dismissed.

Accordingly, the Court GRANTS CCSF's motion as to the Fourth Amendment claim and as to all claims against SFMTA, and DENIES CCSF's motion as to Tumlin.^[1]

B. AutoReturn Motion

The AutoReturn Defendants move to dismiss the Fourth and Eighth Amendment claims. See AutoReturn MTD. The Court previously dismissed without prejudice the Fourth Amendment claim against Defendants PG&E and Alvah for failure to allege state action, and did not dismiss the Fourth Amendment claim against AutoReturn, noting that while AutoReturn had not challenged that claim, it could do so upon amendment. Order Dismissing at 12 n.5. In that same order, the Court held that Plaintiffs' allegation that AutoReturn charged excessive fees was sufficient to state a claim under the Eighth Amendment. Id. at 17, n.6 (total fee listed on AutoReturn's website was $23, 340.50).

1. State Action

AutoReturn now argues that the Second Amended Complaint fails to state a claim under the Fourth Amendment because AutoReturn is not a state actor. AutoReturn MTD at 4-5. To

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state a claim under § 1983, a plaintiff must allege that the “person acted under the color of state law when he or she committed the alleged violation.” See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). In the Second Amended Complaint, Plaintiffs allege that AutoReturn towed their car on February 27, 2020. SAC ¶¶ 45 and 47. Plaintiffs further allege that in doing so, AutoReturn took joint action with the state to deprive Plaintiffs of their constitutionally protected privacy interests, id. ¶ 19, that AutoReturn is “clothed with the authority of the state to seize automobiles on behalf of CCSF, ” and that “the two are intricately entwined in their business dealings, ” even calling CCSF's facility at 750 7th Street the “City and County of San Francisco Impound Powered by AutoReturn, ” id. ¶ 20. Plaintiffs allege that this close connection “satisfies the ‘symbiotic relations' test of Rendell Baker v. Kohn, 457 U.S. 830, 842-43 (1982).” Id.^[2] AutoReturn responds that the fact that “the government licenses, contracts with, or grants a monopoly to a private entity does not convert the private entity into a state actor-unless the private entity is performing a traditional, exclusive public function.” AutoReturn MTD at 4-5 (quoting Manhattan Comm. Access Corp. v. Halleck, U.S., 139 S.Ct. 1921, 1931-32 (2019)).

While AutoReturn is correct as a general matter that the law does not convert all private actors who do business with the government into state actors-more on this below-AutoReturn is incorrect as to the legal significance of its own role. The Ninth Circuit has held that “a private towing company acting at...