Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-02138-JSW

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TRUMP, ALIOTO, TRUMP & PRESCOTT, LLP. Bruce D.M. Prescott, Esq. CSB #120980 Daphne C. Lin, Esq. CSB #193214 2201 Walnut Avenue, Suite 200 Fremont, California 94538 Telephone: (510) 790-0900 Facsimile: (510) 790-4856 E-mail: [email protected] Attorneys for Defendant Central Towing & Transport, LLC, erroneously sued as Central Towing Transport UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

WILLIAM J. WHITSITT,

) ) Plaintiff, ) ) ) v. ) ) ) ) CENTRAL TOWING TRANSPORT, et al. ) ) Defendants. ) ) ) ) ________________________________________ )

Case Number: C08-02138 JSW Related Cases: C08-01802, C08-01803 and C08-02139 DEFENDANT CENTRAL TOWING & TRANSPORT, LLC'S NOTICE OF MOTION AND MOTION TO DISMISS [FRCP 12(b)(6); 29 U.S.C. §1915(e)] Judge: Hon. Jeffrey S. White Hearing Date: October 24, 2008 Time: 9:00 a.m.

TO ALL PARTIES AND THEIR COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN that on October 24, 2008, at 9:00 a.m., or as soon thereafter as soon as counsel may be heard, in the above-referenced Court, defendant Central Towing & Transport, LLC will and hereby does move the Court to dismiss this action pursuant to FRCP 12(b)(6) and 29 U.S.C. §1915(e). This Motion is made on the grounds that the complaint fails to state a claim on which a relief may be granted and that the action is frivolous. Central Towing & Transport, LLC ("Central Towing") requests that the Court dismiss the action and award costs of suit to Central ______________________________________________________________________________
DEFENDANT CENTRAL TOW ING & TRANSPORT, LLC'S NOTICE OF M OTION AND M OTION TO DISM ISS

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Towing pursuant to 29 U.S. C. §1915(f)(1). The motion will be based upon this notice, the Memorandum of Points and Authorities, and Request for Judicial Notice, filed concurrently herewith, all pleadings and documents on file herein, and upon such oral and documentary evidence as may be presented at or before the hearing on this Motion.

Dated: September 2, 2008

TRUMP, ALIOTO, TRUMP & PRESCOTT, LLP.

By: __________________________________________ Bruce D. M. Prescott Daphne C. Lin Attorneys for Defendant Central Towing & Transport, LLC

______________________________________________________________________________
DEFENDANT CENTRAL TOW ING & TRANSPORT, LLC'S NOTICE OF M OTION AND M OTION TO DISM ISS

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff William J. Whitsitt ("Plaintiff") was driving with a suspended license when he was pulled over by an officer from the Dublin Police Department. Plaintiff was then arrested and his vehicle impounded. Subsequently, Plaintiff filed three separate lawsuits arising from this incident. In this in forma pauperis action, Plaintiff sues the defendants for false arrest, false imprisonment, conspiracy and wrongful tow of his vehicle, among other things, in violation of Plaintiff's constitutional rights under 42 U.S.C. §1983. As discussed in Central Towing's motion to dismiss in the related action, Plaintiff's action against Central Towing is without merit because Central Towing towed and impounded Plaintiff's vehicle pursuant to the instructions of Dublin Police with no knowledge of any alleged impropriety or constitutional dispute. Plaintiff's complaint does not and cannot allege any such knowledge. As such, there exists no legal or factual basis to support any theory for liability against Central Towing. II. FACTUAL BACKGROUND Plaintiff asks that judicial notice be taken that this action is "completely different from the other Actions and causes of action filed against other defendants" (Complaint at 19:19-20) although no facts or explanations have been provided as to how the facts or causes of action are different and it appears that this action arises from the same incident which occurred on March 23, 2008. On that day, Plaintiff was driving his 1971 Dodge Powerwagon (the "Vehicle") on Alcosta Boulevard in Dublin when an officer from the Dublin Police noticed that a trailer ball partially obscured the rear license plate of the Vehicle and one of the brake lights was inoperable. The officer proceeded to pull Plaintiff over and the Vehicle stopped on Davona Drive just north of the intersection of Davona Drive and Alcosta Boulevard. According to the officer, Plaintiff acknowledged that his driver's license was suspended. The officer ran a warrant check which confirmed that Plaintiff's license was suspended or revoked, and that Plaintiff had an outstanding ______________________________________________________________________________
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warrant for violation of California Vehicle Code §14601.1(a). Based on the above information, the officer arrested Plaintiff and asked Central Towing to tow the Vehicle pursuant to California Vehicle Code §14602.6.1 Central Towing was informed that the location of the Vehicle was at the intersection of Davona and Alcosta Boulevard in Dublin, towed and impounded the Vehicle from the described location. Central Towing followed all procedures in towing and impounding the Vehicle. As a result of Plaintiff's failure to pay the towing and storage fees and follow proper administrative procedures to contest the lien sale, Plaintiff has not been able to regain possession of the Vehicle. Following an unsuccessful lien sale, the Vehicle is currently stored at one of Central Towing's facilities. Subsequently, Plaintiff filed three separate lawsuits (case numbers ending with 1802, 2138 and 2139) alleging that his arrest as well as the towing and impounding of the Vehicle were wrongful and constituted a violation of his constitutional rights. Plaintiff is seeking millions of dollars in damages in each lawsuit. III. LEGAL ANALYSIS An action shall be dismissed if plaintiff's complaint fails to state a claim upon which relief can be granted. Fed. Rul. Civ. Pro. 12(b)(6). A Rule 12(b)(6) motion is proper where there is a lack of a cognizable legal theory, or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept. (9th Cir. 1990) 901 F.2d 696, 699. Further, to prevent abusive or captious litigation, the court must dismiss an in forma pauperis action at any time if it determines that the action is frivolous or fails to state a claim on which relief may be granted. 28 U.S.C. §1915(e)(2). A complaint is frivolous if it "lacks an arguable basis in law or fact." Neitzke v. Williams (1989) 490 U.S. 319 at 325. A finding of factual frivolousness is appropriate when the facts alleged rise to the level of irrational or the wholly incredible, whether

§14602.6 provides, in relevant parts, that "[w]henever a peace officer determines that a person was driving a vehicle while his driving privilege was suspended or revoked, the peace officer may immediately arrest that person and cause the removal and seizure of that vehicle ... A vehicle so impounded shall be impounded for 30 days." ______________________________________________________________________________
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or not there are judicially noticeable facts available to contradict them. Denton v. Hernandez (1992) 504 U.S. 25, 32-33. Courts may award costs to defendant where an in forma pauperis action is dismissed under 28 U.S.C. §1915(e). 28 U.S.C. §1915(f)(1). In this current action, despite referring to Central Towing a "Co-Conspirator" (Complaint at 5:17), there are no allegations of fact or causes of action of conspiracy other than a paragraph which contains certain conclusory statements that "the named defendants did act pursuant to a conspiracy under the color of state law" (Complaint at 19:7-8). Of the five causes of action Plaintiff's complaint purportedly contains, Plaintiff alleges the First Cause of Action for Wrongful Tow of Vehicle and Fifth Cause of Action for Denial of Forfeiture Hearing against Central Towing. As discussed below, both of Plaintiff's causes of action against Central Towing lack any arguable basis in law or fact, and fail to state a claim on which relief may be granted. A. Plaintiff's First Cause of Action against Central Towing Must Be Dismissed. 1. The Complaint Fails to State Sufficient Facts. The complaint, brought under 42 U.S.C. §1983, alleges that Plaintiff's constitutional rights were violated because the Dublin Police had no probable cause to stop him and the stop was outside of the Dublin Police's jurisdiction. Here, Plaintiff fails to allege any facts upon which Central Towing should be liable other than a conclusory statement that "Central Towing seized, towed and stored [his] Vehicle and is a named defendant and co-conspirator." (Complaint at 5:16-17.) As discussed in Central Towing's Motion to Dismiss in the 2139 action, inferences, generalities, presumptions and conclusions are insufficient in a pleading against a party under the conspiracy theory. 117 Sales Corp. v. Olsen (1978) 80 Cal. App. 3d 645, 650; see also Beliveau v. Caras (C.D. Cal. 1995) 873 F. Supp. 1393, 1395-1396 (courts need not accept as true conclusory allegations, unreasonable inferences or unwarranted deductions of fact). First of all, according to California Penal Code §830.1(a)(1), the local peace officer's authority extends to any place in the state as to any public offense committed or which there is a probable cause to believe has been committed, within the political subdivision which employs the peace officer. If a driving violation occurred within the city where the officer is employed or if the officer has probable cause to believe that the violation was committed in the city employing ______________________________________________________________________________
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the officer, s/he is entitled to issue a citation. People v. Cooper (2002) 101 Cal. App. 4th Supp. 1 at 7 ("Cooper"). In Cooper, the defendant's challenge to his traffic violation cited by an officer of the City of Los Angeles in the City of Beverly Hills for lack of jurisdiction was denied because the officer began pacing the defendant in the City of Los Angeles and had a probable cause to believe that the infraction was committed in Los Angeles. Id. at 7. That is, even assuming arguendo that the tow took place outside of Dublin and the tow operator knew, Plaintiff has failed to and cannot allege that Central Towing knew or had reason to know where the officer began pacing Plaintiff. That is, without alleging that Central Towing knew at the time of the tow not only that the Vehicle was stopped outside of Dublin and the pacing began outside of Dublin, but also that the officer had no probable cause to believe Plaintiff's violations of the various Vehicle Code sections were committed in Dublin, the Complaint fails to state sufficient facts to show that Central Towing knowingly violated Plaintiff's constitutional rights by towing the Vehicle. 2. Leave should not be granted. Although a court should construe a pro se plaintiff's pleadings liberally, such complaints may be dismissed without leave to amend if it is clear that the deficiencies could not be cured by amendment. Noll v. Carlson (9th Cir. 1987) 809 F.2d 1446, 1448. Here, Plaintiff cannot cure the defect by alleging the tow operator "knew" that the Vehicle was outside of Dublin, because the tow operator was told that the Vehicle was in Dublin and did not know or question whether the Vehicle was indeed in Dublin or the adjacent San Ramon. (See Declaration of Tim Poole, ¶¶2-4; Declaration of Nicole Schaa, ¶2, and ¶4 previously filed in support of Central Towing's Motion to Dismiss in the 2139 action.) Further, a private tow company is entitled to invoke the good faith defense when acting under the direction of the police that specifically called for the tow, especially when the alleged constitutional violation arose not from any act or omission by the tow company. Clement v. City of Glendale (9th Cir. 2008) 518 F.3d 1090 at 1097; see also Richardson v. McKnight (1997) 521 U.S. 399, 413-414. That is, to prevail against Central Towing under section 1983, a private tow company, Plaintiff must allege and prove that Central Towing conducted the tow in bad faith. ______________________________________________________________________________
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After all, one who innocently does an act that furthers the tortious purpose of another is not acting in concert with him or her and thus cannot be held liable for conspiracy or the underlying act. Saunders v. Superior Court (1994) 27 Cal. App. 4th 832, 846. Plaintiff cannot allege any bad faith on Central Towing's part because Central Towing was summoned and instructed by the Dublin Police to tow the Vehicle and there is no fact to support any alleged constitutional violation resulting from Central Towing's independent act or omission. Because there exists no arguable basis in facts or law against Central Towing for any constitutional violation, Plaintiff's Complaint against Central Towing should be dismissed with prejudice. B. There is No Legal or Factual Basis to Support Plaintiff's Fifth Cause of Action for Denial of Forfeiture Hearing. Plaintiff's Fifth Cause of Action alleges that his due process right was violated because the Vehicle was sold without a forfeiture hearing despite "several demands"he made (Complaint at 20:9-10) Plaintiff's claim fails to state a claim under which relief can be granted as the vehicle is not sold and is currently in storage pending this and the related actions. Further, although the complaint does not appear to be challenging the constitutionality of Civil Code §3072 under which the lien sale was held, this cause of action must be examined in view of the particular statute. California Civil Code §3072 requires that notice and an opportunity for hearing be given prior to a lien sale. Pursuant to the statute, a registered or legal owner or any other person known to have an interest in the Vehicle can request a court hearing by filing a Declaration of Opposition form within 10 days of the mailing date of the Notice of Pending Lien Sale. Cal. Civ. Code §3072(c)(4)(C). The statute passes the constitutional muster because procedural due process requires only that notice and an opportunity for hearing before the state may deprive a person of any significant property interest.2 People v. Beverly Bail Bonds (1982) 134 Cal. App. 3d 906, 909 (citing Fuentes v. Shevin (1972) 407 U.S. 67, 80, 90 and

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Plaintiff's complaint cites Peope v. One 1941 Chevrolet Coupe (1951) 37 Cal. 2d 283 which in fact stands for the same legal principle that there can be no forfeiture of property without notice to the owner and a hearing at which he can be heard. Id., at 286. ______________________________________________________________________________
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Adams v. Dept. of Motor Vehicles (1974) 11 Cal.3d 146, 151). The complaint does not, nor can it allege, that Central Towing failed to follow the procedural requirements pursuant to Civil Code §3072. In fact, Plaintiff acknowledges that he was given notice of the lien sale. (See Plaintiff's Motion for Reconsideration and Exhibit C filed in support of the motion) More importantly, Plaintiff does not allege, nor has he attempted to dispute, that Plaintiff was the one who failed to file a Declaration of Opposition to request for a court hearing. As there is no legal or factual basis to support Plaintiff's Fifth Cause of Action, this cause of action must be dismissed without leave to amend.

V. CONCLUSION For all of the foregoing reasons, defendant Central Towing & Transport, LLC respectfully requests that the Court grant this motion, dismiss the action against Central Towing & Transport, LLC with prejudice, and award Central Towing & Transport its costs of suit as provided by law.

Dated: September 2, 2008

TRUMP, ALIOTO, TRUMP & PRESCOTT, LLP.

By: __________________________________________ Bruce D. M. Prescott Daphne C. Lin Attorneys for Defendant Central Towing & Transport, LLC

______________________________________________________________________________
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DECLARATION OF SERVICE William J. Whitsitt v. Wheatfall, et al. Case Number: C08-02138 JSW Related Cases: C08-01802, C08-01803 and C08-02139 I, Carmen Ott, declare and say: I am over the age of eighteen years and not a party to the within action. My business address is 2201 Walnut Avenue, Suite 200, Fremont, California, 94538. On September 2, 2008, I caused to be served the following documents described as:

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DEFENDANT CENTRAL TOW ING & TRANSPORT, LLC'S NOTICE OF M OTION AND M OTION TO DISM ISS

DEFENDANT CENTRAL TOWING & TRANSPORT, LLC'S NOTICE OF MOTION AND MOTION TO DISMISS on the interested parties in this action by placing a true and correct copy thereof in a sealed envelope addressed as follows: William J. Whitsitt 335 West Clover Road Tracy, California 95376 (by personal service): I caused such envelope to be delivered by hand to the above address(es). (by facsimile): I caused the above-referenced document(s) to be transmitted to the abovenamed persons at each of their respective facsimile numbers listed above, a copy of which is attached hereto. (by overnight courier): I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the above address(es). (by mail): I am readily familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one (1) day after the date of deposit for mailing in the affidavit.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct and that this declaration was executed on September 2, 2008.

___________________________ Carmen Ott

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