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Decaprio v. City of Berkeley

June 3, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge


Defendants City of Berkeley, Berkeley Police Department (BPD), City of Berkeley Public Works, Captain Doug Hambleton, Officer Spencer Fomby, Officer Jessyca Nabozny and Gregory Daniels (collectively, Defendants) move for summary adjudication of Plaintiff Steven DeCaprio's claims against them. Plaintiff, appearing pro se, opposes the motion, and cross-moves for summary judgment in his favor, for a preliminary injunction, and to continue the summary judgment hearing until after the close of fact discovery. Defendants oppose the motions. In addition, Plaintiff has filed a motion to add as additional parties Sergeant Curtin, Sergeant Kelly Gordon, Officer Torrence and Officer Mah; to add additional claims for deprivation of Plaintiff's rights under the First and Fourth Amendments, in violation of 42 U.S.C. § 1983; and to supplement his pleadings. Defendants oppose this motion. Plaintiff also filed a second motion to continue the summary judgment motions in order to allow him to supplement his pleadings. That motion was filed on April 18, 2005 and purportedly noticed for hearing on April 22, 2005, but Plaintiff did not file a written stipulation or a motion to shorten time as required by Local Rule 6-1(b). Thus, no opposition to that motion is required and Defendants have not filed one.

The Court finds the parties' motions for summary judgment appropriate for decision without oral argument as permitted by Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78. See also Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998), (noting that district court may decide summary judgment issues without oral argument if parties have opportunity to submit written materials) (citing Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991) cert. denied, 503 U.S. 920 (1992)). Accordingly, the matter was taken under submission on the papers.

Having considered all of the papers filed by the parties, the Court grants Defendants' motion for summary judgment, and denies Plaintiff's motions.


The factual issues in the case are undisputed, unless otherwise noted. Plaintiff's complaint arises out of his claim to a house at 1634 62rd Street in Berkeley, California. The residence was owned by George and Essie Thomas, who died in 1981 and 1988, respectively. On March 13, 2004, Plaintiff entered and occupied the empty residence. He claimed title on grounds of his occupancy, pursuant to California Civil Code § 1006, which provides that occupancy "for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession."

On April 29, 2004, Doris Anderson contacted the Berkeley Police Department and reported to Defendant Officer Fomby that she was having a problem with trespassers entering the residence. She told Officer Fomby that, although the title to the residence was in the name of her deceased parents, the Thomases, "she was in the process of having title transferred to her name." Fombly Decl. ¶ 4.*fn1 Officer Fomby checked BPD records and found two form letters, dated December 2, 2002 and April 5, 2004, submitted by Ms. Anderson requesting police to enforce trespassing laws at the residence. He checked Win2Data, a web-based data bank for real property, and found that the owner of the residence was "Thomas Geo H & E," whose address was listed as 1332 Kains Ave., "C/O Doris J. Anderson." Fomby Decl., Ex. B, Win2Data Property Information. BPD records also showed that a citizen had reported that boards were being removed from the residence on April 13, 2004; an officer investigated the property and met Plaintiff, who identified himself by name. Id., Ex. C, April 14 Police Report. BPD records also showed that a neighbor reported possible trespassers on April 16.

Officer Fomby met with Ms. Anderson at the property on April 29 with her handyman to reboard the doors and windows and post a "no trespassing" sign. The next day, a neighbor reported that "someone broke into the rear" of the residence. Fomby Decl., Ex. E, April 30, 2004 Communications Incident Lister.

On May 1, another neighbor reported that people were taking down the boards and the no-trespassing sign. Fomby Decl., Ex. F, May 1, 2004 Communications Incident Lister. According to the police report, Plaintiff identified himself to police as a "property manager" for George Thomas and claimed that he was paying taxes on the property and was entitled to occupy it, but had no other paperwork to support his claim of ownership or tenancy. Id., Ex. F at 2. Plaintiff and two of his friends were removed by Berkeley police officers acting on the authority of a "No Trespassing Letter" signed by Ms. Anderson.*fn2 Plaintiff was advised to contact the City Manager's Office regarding his claim. Id.

On May 4, and again on June 3, Plaintiff filed an application in Alameda County Superior Court for a temporary restraining order (TRO) against Ms. Anderson, on behalf of himself and two housemates.*fn3 Plaintiff represented in his application that Ms. Anderson had "for the purpose of harassment, filed a fraudulent letter of no trespass . . . after plaintiff had established tenancy." Defs.' Req. Jud. Notice, Ex. E, May 4, 2004 Petition for Injunction Prohibiting Civil Harassment at 2. On June 21, 2004, the Alameda Superior Court issued the TRO, which required that Ms. Anderson stay at least ten yards away from Plaintiff and the house. Plaintiff did not serve this TRO on Ms. Anderson.

On July 14, 2004, Defendant Officer Jessyca Nabozny responded to a call for service at the residence, complaining about juveniles and drugs on the property (apparently, no drugs or juveniles were found). After Officer Nabozny arrived at the residence, a neighbor complained that a van had been parked in front of the property for a lengthy period of time. Neighbors told her that the car belonged to people staying "illegally" at the residence. The van belonged to Plaintiff, although at the time Officer Nabozny did not know the identity of the owner.

She asked another officer to check the van's license records, and was informed that there was "no registration of owner information on file." Nabozny Decl. ¶ 3. Believing the vehicle was unregistered, Officer Nabozny had Plaintiff's vehicle towed. BPD later concluded that the information provided to Officer Nabozny was in error. The van was released to Plaintiff on July 16, and BPD paid the towing fee.

On July 27, Officer Fomby responded to a report of a burglary in process at the residence. When he arrived, Officer Crews told him that Plaintiff was using a crowbar to remove boards from the windows. Plaintiff was detained and handcuffed. Plaintiff made several inconsistent statements. He showed Officer Fomby a utility bill addressed to "George Thomas c/o Steven DeCaprio," and asserted that he had an "arrangement with George Thomas." Fomby Decl., Ex. I, BPD Supplemental Report at 4. Yet he also informed the officer that he was in the process of taking over the house through adverse possession, and that he had a restraining order against Ms. Anderson. Plaintiff admitted that he had changed the locks and removed the notrespassing sign. The house was searched without Plaintiff's consent. Afterwards, Plaintiff was released and allowed to remove his personal property. Plaintiff was told that there was insufficient evidence to support an arrest. However, Officer Fomby did cite Plaintiff for violation of California Penal Code § 602.5(a), unlawful entry into a residence. A criminal records check later revealed a report that Plaintiff was a suspect in a breaking and entering the previous year at another vacant dwelling. Fomby Decl., Ex. J, July 30, 2003 BPD Supplemental Report.

On August 6, Plaintiff applied to the Alameda County Superior Court for reissuance of the TRO against Ms. Anderson. The hearing was set for August 27, 2004. Ms. Anderson did not appear at the hearing, although this time she was served. At the hearing, the judge found that Plaintiff's allegations against Ms. Anderson did not qualify as civil harassment. The matter was dismissed and the TRO was dissolved.

Officer Fomby received an August 6, 2004 letter from Ms. Anderson enclosing copies of her previous years' property tax payments. Later, her lawyer wrote to the BPD explaining that he had been engaged to transfer the title of the property to the Thomases' heirs.

On August 13, 2004, a neighbor again called to report Plaintiff attempting to pry boards off the property. When BPD officers arrived, Plaintiff was attempting to remove a board that had a "No Tresspassing" sign on it. Plaintiff again asserted that he owned the property, and presented a photocopy of a "Homestead" application filed with the Alameda County Recorder's office. BPD officers cited Plaintiff again, this time for violation of Berkeley Municipal Code (BMC) § 13.52.010. Both of the citations were later dismissed by Alameda County Superior Court, although the reason for this does not appear in the record.

On December 28, 2004, Ms. Anderson was appointed administrator of Essie Thomas' estate. See Defendants' Request for Judicial Notice, Ex. F, Letters (Probate) of Administration with Will Annexed. As such, she may now administer the estate "with full authority." Id. at 1. According to the Letters (Probate) of Administration, there are three ...

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