Plevin et al v. City and County of San Francisco et al, No. 4:2011cv02359 - Document 31 (N.D. Cal. 2011)

Court Description: ORDER GRANTING DEFENDANT CITY AND COUNTY OF SAN FRANCISCOS 13 MOTION TO DISMISS, DENYING AS MOOT DEFENDANT CITY AND COUNTY OF SAN FRANCISCOS ANTI-SLAPP 16 MOTION TO STRIKE AND DENYING WITHOUT PREJUDICE DEFENDANT CITY AND COUNTY OF SAN FRANCISCOS ANTI-SLAPP MOTION FOR ATTORNEYS FEES. Case Management Statement due by 10/11/2011. Case Management Conference set for 10/18/2011 02:00 PM. Signed by Judge Claudia Wilken on 7/29/2011. (ndr, COURT STAFF) (Filed on 7/29/2011)

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Plevin et al v. City and County of San Francisco et al Doc. 31 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 PHILLIP PLEVIN and TERESITA TORRES, 5 6 7 8 Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO and S.A. NAVARRO, Defendants. 9 / United States District Court For the Northern District of California 10 11 12 13 14 15 No. C 11-02359 CW ORDER GRANTING DEFENDANT CITY AND COUNTY OF SAN FRANCISCO’S MOTION TO DISMISS, DENYING AS MOOT DEFENDANT CITY AND COUNTY OF SAN FRANCISCO’S ANTISLAPP MOTION TO STRIKE AND DENYING WITHOUT PREJUDICE DEFENDANT CITY AND COUNTY OF SAN FRANCISCO’S ANTISLAPP MOTION FOR ATTORNEYS’ FEES (Docket Nos. 13 and 16) 16 17 Plaintiffs Phillip Plevin and Teresita Torres bring claims 18 under federal and state law against Defendants City and County of 19 San Francisco and S.A. Navarro based on alleged violations of their 20 constitutional rights. 21 claims. 22 Procedure section 425.16, commonly known as California’s anti- 23 Strategic Lawsuit Against Public Participation (anti-SLAPP) 24 statute, the City moves to strike Plaintiffs’ state law claims. 25 Navarro has not appeared in this action and it appears that he has 26 not been served. 27 papers. The City moves to dismiss Plaintiffs’ Additionally, pursuant to California Code of Civil The motions were taken under submission on the Having considered the papers submitted by the parties, the 28 Dockets.Justia.com 1 Court GRANTS the City’s motion to dismiss, DENIES as moot the 2 City’s anti-SLAPP motion to strike and DENIES without prejudice the 3 City’s anti-SLAPP motion for attorneys’ fees. 4 BACKGROUND 5 6 The following allegations are contained in Plaintiffs’ complaint, unless stated otherwise.1 7 On December 18, 2009, a hit-and-run driver collided with Plaintiffs, who were riding a motorcycle. 9 police officer, “failed to record information identifying” the 10 United States District Court For the Northern District of California 8 driver in order to prevent Plaintiffs from seeking redress for 11 their injuries. 12 “clothing identifying him as a member of a motorcycle club.” 13 at 5. 14 citizens who are members of a motorcycle club.” 15 Compl. at 4. Navarro, the responding He did so because Plevin wore Id. The City has “a policy to persecute, harass, and intimidate Id. at 4. Plaintiffs charge Defendants with negligence, “intentional 16 tort,” violation of California Civil Code section 52.3 and 17 violation of 42 U.S.C. section 1983. 18 Defendants violated their First, Fourth and Fourteenth Amendment 19 rights under the United States Constitution. 20 Plaintiffs contend that As noted above, Navarro has not appeared in this action, and 21 the City contends that he has not been served. 22 proof that they served Officer R. Ortiz, who they contend is a Plaintiffs offer 23 1 27 In their opposition to the City’s motion to dismiss, Plaintiffs discuss various allegations they would make in an amended complaint. They also include declarations along with their opposition to the City’s anti-SLAPP motion. Because these allegations do not appear in an amended pleading, the Court disregards them for the purposes of the City’s motion to dismiss. Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 28 2 24 25 26 1 “Court Liaison” authorized to accept service on behalf of Navarro. 2 Navarro states that Ortiz “is not now and has never been authorized 3 by me to act as my authorized agent to accept service of summons 4 for a civil complaint in which I am a defendant.” 5 Support of Mot. to Strike ¶ 4. 6 7 8 9 Navarro Decl. in DISCUSSION I. Motion to Dismiss A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. United States District Court For the Northern District of California 10 Civ. P. 8(a). 11 claim is appropriate only when the complaint does not give the 12 defendant fair notice of a legally cognizable claim and the grounds 13 on which it rests. 14 (2007). 15 state a claim, the court will take all material allegations as true 16 and construe them in the light most favorable to the plaintiff. 17 Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 18 However, this principle is inapplicable to legal conclusions; 19 “threadbare recitals of the elements of a cause of action, 20 supported by mere conclusory statements,” are not taken as true. 21 Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949-50 (2009) 22 (citing Twombly, 550 U.S. at 555). 23 Dismissal under Rule 12(b)(6) for failure to state a Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 In considering whether the complaint is sufficient to NL When granting a motion to dismiss, the court is generally 24 required to grant the plaintiff leave to amend, even if no request 25 to amend the pleading was made, unless amendment would be futile. 26 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 27 F.2d 242, 246-47 (9th Cir. 1990). 28 In determining whether amendment 3 1 would be futile, the court examines whether the complaint could be 2 amended to cure the defect requiring dismissal “without 3 contradicting any of the allegations of [the] original complaint.” 4 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). 5 Leave to amend should be liberally granted, but an amended 6 complaint cannot allege facts inconsistent with the challenged 7 pleading. 8 9 Id. at 296-97. Plaintiffs indicate that, in any amended pleading, they do not intend to assert state law claims. Accordingly, the Court need not United States District Court For the Northern District of California 10 decide whether Plaintiffs sufficiently allege the state law claims 11 in their complaint. 12 Plaintiffs’ Monell claim fails. A municipality may be liable 13 under section 1983 when the enforcement of a municipal policy or 14 custom was the moving force behind the violation of a 15 constitutionally protected right. 16 Servs., 436 U.S. 658, 663-64 (1978). 17 Monell, a plaintiff must plead “a constitutional right violation 18 resulting from (1) an employee acting pursuant to an expressly 19 adopted official policy; (2) an employee acting pursuant to a 20 longstanding practice or custom; or (3) an employee acting as a 21 final policymaker.” 22 82 (9th Cir. 2010) (citation and internal quotation marks omitted). 23 As explained further below, with one exception, Plaintiffs do not 24 allege cognizable violations of their constitutional rights. 25 if they plead violations, their Monell claim would nevertheless 26 fail because they do not allege a factual basis for their assertion 27 that Navarro was acting pursuant to a policy expressly adopted by 28 Monell v. Dep’t of Social To state a claim under Delia v. City of Rialto, 621 F.3d 1069, 1081- 4 Even 1 the City or a longstanding practice or custom. 2 A. 3 Plaintiffs contend that Navarro violated their First Amendment Violation of First Amendment Rights 4 rights to freedom of association and to petition by failing to 5 record the license plate number of the driver’s vehicle. 6 The First Amendment protects a right to freedom of expressive 7 association.2 8 Cir. 2007) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 9 (1984)). Villegas v. City of Gilroy, 484 F.3d 1136, 1141 (9th To assert a claim for infringement of this right, a United States District Court For the Northern District of California 10 plaintiff must be part of a group that engages “‘in some form of 11 expression, whether it be public or private.’” 12 at 1141 (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 13 (2000)). 14 in the amendment: speaking, worshiping, and petitioning the 15 government.’” 16 Clark Cnty., 836 F.3d 1185, 1192 (9th Cir. 1988)). 17 Plaintiffs have not plead any facts regarding the motorcycle club 18 of which Plevin is a member. 19 in any activity explicitly enumerated in the First Amendment. 20 Thus, their freedom-of-association theory fails. 21 Villegas, 484 F.3d Such expressive activities are those “‘explicitly stated Villegas, 484 F.3d at 1142 (quoting IDK, Inc. v. Here, They do not suggest that it engages The First Amendment also protects the “right of meaningful 22 23 2 27 Plaintiffs do not state whether their First Amendment theory concerns their rights to intimate or expressive association. See Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir. 1995) (explaining First Amendment’s protection of “certain intimate relationships” and the “right to associate for the purpose of engaging in those expressive activities otherwise protected by the Constitution”). Plaintiffs, however, do not allege facts or make arguments that implicate their First Amendment right to intimate association. 28 5 24 25 26 1 access to the courts.” 2 Cir. 1998). 3 “effectively covers-up evidence and actually renders any state 4 court remedies ineffective.” 5 Rouge, 119 F.3d 1259, 1262 (6th Cir. 1997)). 6 that Navarro had information identifying the driver who hit them, 7 but failed to record it. 8 violation because it indicates that Navarro prevented Plaintiffs 9 from obtaining evidence that he had, which precluded them from Delew v. Wagner, 143 F.3d 1219, 1222 (9th This right may be infringed if police conduct Id. (citing Swekel v. City of River Plaintiffs contend This allegation suggests a constitutional United States District Court For the Northern District of California 10 seeking relief in state court against the driver. 11 Plaintiffs do not plead facts to support their claim that Navarro 12 did this pursuant to an official policy or practice. 13 although Plaintiffs state an individual section 1983 claim against 14 Navarro, they do not state a Monell claim against the City based on 15 this ground. However, As a result, 16 For these reasons, Plaintiffs’ Monell claim against the City 17 is dismissed to the extent it rests on a violation of their First 18 Amendment rights. 19 B. 20 The Fourth Amendment protects “against unreasonable searches Violation of Fourth Amendment Rights 21 and seizures.” 22 in their complaint that Navarro committed any conduct falling 23 within the scope of Fourth Amendment protections. 24 opposition, they argue that Navarro violated the Fourth Amendment 25 by attempting to take Plevin’s jacket “as a trophy.” 26 16:14. 27 be sufficient to state a Fourth Amendment claim for an unreasonable 28 6 U.S. Const., Amend. IV. Plaintiffs do not allege In their Opp’n at Even if this were alleged in their complaint, it would not 1 seizure. 2 interfered with Plevin’s possessory interests in his jacket. 3 United States v. Jefferson, 566 F.3d 928, 933 (9th Cir. 2009). 4 Further, there is no indication that Torres had a possessory 5 interest in the jacket on which she could base a Fourth Amendment 6 claim against Defendants. Plaintiffs do not suggest that Navarro meaningfully See 7 Consequently, Plaintiffs’ Monell claim against the City is 8 dismissed to the extent it rests on a violation of their Fourth 9 Amendment rights. United States District Court For the Northern District of California 10 C. 11 Plaintiffs assert that Navarro infringed their Fourteenth 12 13 Violation of Fourteenth Amendment Rights Amendment rights to equal protection and due process. “The Equal Protection Clause of the Fourteenth Amendment 14 commands that no State shall ‘deny to any person within its 15 jurisdiction the equal protection of the laws,’ which is 16 essentially a direction that all persons similarly situated should 17 be treated alike.” 18 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 19 (1982)). 20 Clause, a plaintiff “must plead intentional unlawful discrimination 21 or allege facts that are at least susceptible of an inference of 22 discriminatory intent.” 23 158 F.3d 1022, 1026 (9th Cir. 1998). 24 sufficient facts to support their assertion that, pursuant to an 25 official policy or practice, Navarro discriminated against them 26 because of their membership in a motorcycle club. 27 Plaintiffs plead that they were not treated the same as similarly- 28 City of Cleburne v. Cleburne Living Ctr., 473 To state a claim for relief under the Equal Protection Monteiro v. Tempe Union High Sch. Dist., 7 Plaintiffs do not allege Nor do 1 situated individuals. 2 they are members of a suspect class, they must plead facts 3 demonstrating that Navarro’s conduct was without a rational basis. 4 See Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 5 907 (9th Cir. 2007). 6 Further, because they do not allege that They do not do so. Plaintiffs’ due process theory appears to have two grounds. To the extent that Plaintiffs’ claim under the Fourteenth 8 Amendment’s Due Process Clause is based on the abridgement of their 9 fundamental right to access to the courts, it is subsumed under 10 United States District Court For the Northern District of California 7 their First Amendment claim for the infringement of this right. 11 See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 12 1989). 13 Navarro for violation of this right, they fail to state a Monell 14 claim against the City on this ground because they do not plead 15 facts showing that Navarro acted pursuant to an official policy or 16 practice. 17 deprivation of their property interest in a potential lawsuit 18 against the driver fails because “a party’s property right in any 19 cause of action does not vest ‘until a final unreviewable judgment 20 is obtained.’” 21 (C.D. Cal. 2006) (quoting In re Consol. U.S. Atmospheric Testing 22 Litig., 820 F.2d 982, 989 (9th Cir. 1987)). As explained above, although they state a claim against Plaintiffs’ theory of liability based on the alleged Ileto v. Glock, Inc., 421 F. Supp. 2d 1274, 1299 23 Accordingly, Plaintiffs’ Monell claim against the City is 24 dismissed to the extent it rests on a violation of their Fourteenth 25 Amendment rights. 26 II. 27 28 Anti-SLAPP Motion to Strike California’s anti-SLAPP statute provides, 8 1 2 3 4 A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. 5 Cal. Civ. Proc. Code § 425.16(b)(1). California anti-SLAPP motions 6 to strike are available to litigants proceeding in federal court. 7 Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206, 1206 (9th Cir. 2005). 8 Courts analyze these motions in two steps. “First, the 9 defendant must make a prima facie showing that the plaintiff’s suit United States District Court For the Northern District of California 10 arises from an act in furtherance of the defendant’s rights of 11 petition or free speech.” Mindys Cosmetics, Inc. v. Dakar, 611 12 F.3d 590, 595 (9th Cir. 2010) (citation and internal quotation 13 marks omitted). “Second, once the defendant has made a prima facie 14 showing, the burden shifts to the plaintiff to demonstrate a 15 probability of prevailing on the challenged claims.” Id. 16 Generally, “a prevailing defendant on a special motion to 17 strike shall be entitled to recover his or her attorney’s fees and 18 costs.” Cal. Civ. Proc. Code § 425.16(c); see also Bernardo v. 19 Planned Parenthood Fed. of Am., 115 Cal. App. 4th 322, 360-367 20 (2004) (explaining policy behind mandatory fees and costs provision 21 of anti-SLAPP statute). A defendant may be deemed a prevailing 22 party entitled to attorneys’ fees, even if a plaintiff voluntarily 23 dismisses the claims that were subject to an anti-SLAPP motion to 24 strike. See Coltrain v. Shewalter, 66 Cal. App. 4th 94, 107 25 (1998); Clear Channel Outdoor, Inc. v. Lee, 2009 WL 57110, at *1-*2 26 (N.D. Cal.); Pandora Jewelry, LLC v. Bello Paradiso, LLC, 2009 WL 27 28 9 1 1953468, at *3-*4 (E.D. Cal.). 2 their discretion to deem a defendant a prevailing party, courts 3 must consider the “critical issue” of “which party realized its 4 objectives in the litigation.” 5 A plaintiff “may try to show it actually dismissed because it had 6 substantially achieved its goals through a settlement or other 7 means, because the defendant was insolvent, or for other reasons 8 unrelated to the probability of success on the merits.” 9 In determining whether to exercise Coltrain, 66 Cal. App. 4th at 107. Id. The City’s anti-SLAPP motion to strike is directed solely at United States District Court For the Northern District of California 10 Plaintiffs’ state law claims. 11 intend to assert these claims in an amended complaint, and the 12 City’s motion to strike them is denied as moot. 13 may seek attorneys’ fees under the anti-SLAPP statute. 14 As noted above, Plaintiffs do not Accordingly, the City’s anti-SLAPP motion for attorneys’ fees 15 is DENIED without prejudice. 16 under the statute after judgment enters. 17 18 The City, however, The City may move for attorneys’ fees Civil L.R. 54-5(a). CONCLUSION For the foregoing reasons, the Court GRANTS the City’s motion 19 to dismiss (Docket No. 13), DENIES as moot the City’s anti-SLAPP 20 motion to strike and DENIES without prejudice the City’s anti-SLAPP 21 motion for attorneys’ fees (Docket No. 16). 22 claim against the City is dismissed with leave to amend. 23 for Navarro’s purported infringement of their right to access to 24 the courts, Plaintiffs do not plead facts suggesting that their 25 other constitutional rights were violated. 26 assert a Monell claim against the City, Plaintiffs must plead 27 factual bases for the alleged violations of their constitutional 28 10 Plaintiffs’ Monell Except If they intend to 1 rights and the existence of an official policy or longstanding 2 practice that led to these violations. 3 If Plaintiffs intend to file an amended complaint, they shall 4 do so within fourteen days of the date of this Order and serve it 5 on Navarro by September 9, 2011. 6 shall answer or otherwise respond to Plaintiffs’ amended complaint 7 within twenty-one days of the date they serve Navarro. 8 for the City ultimately represents Navarro, any motion to dismiss 9 by the City and Navarro shall be filed jointly. United States District Court For the Northern District of California 10 11 12 13 Fed. R. Civ. P. 4(m). Defendants If counsel Any motion to dismiss will be taken under submission on the papers. The case management conference, presently set for August 23, 2011, is continued to October 18, 2011 at 2:00 p.m. IT IS SO ORDERED. 14 15 Dated: 7/29/2011 CLAUDIA WILKEN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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