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Hardy v. County of El Dorado

November 13, 2008


Memorandum of Opinion and Order

This matter comes before the Court on Defendants County of El Dorado ("County"), Sheriff David Cook ("Cook"), and Tony's Tow & Transport, Inc.'s ("Tony's Tow") (collectively "Defendants") motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Plaintiffs Tim Hardy ("Hardy") and Darlene Hardy (collectively "Plaintiffs") oppose the motions. For the reasons set forth below,*fn1 Defendants' motions are GRANTED.


Plaintiffs are owners of a fenced and gated hilly two-acre residential property located in El Dorado County at 9711 Highway 193, Kelsey, California. FAC ¶ 1. The property is two-tiered, with an 800 square foot house and small backyard on the bottom level, which is separated from the upper level by a ledge and a hill approximately 60 feet. Tony's Tow Statement of Undisputed Facts, Sept. 17, 2008, ("SUF") ¶ 2. The entire property is fenced with materials which do not obstruct visibility from the highway into the property. SUF ¶ 3.

In 2005, Hardy was storing vehicles on the upper level of the Plaintiffs' property. Id. ¶ 7. A majority of the vehicles stored on the upper level could be seen from the highway and all vehicles could be seen from the neighboring property. Id. ¶ 8. In 2005, after receiving a complaint about cars stored on Plaintiffs' property, Sheriff David Cook whose responsibilities included implementing El Dorado County's vehicle abatement program, contacted Hardy to arrange a meeting and visit the property. County and Cook's Motion for Summary Judgment ("Cook's Mot.") 3:14-20. On May 3 or 4, 2005, while Hardy was present, Cook visited the property and tagged a number of vehicles for removal. SUF ¶ 10. On May 4, the County sent Plaintiffs a "Notice of Intention to Abate and Remove Abandoned, Wrecked, Dismantled, or Inoperative Vehicles or Parts Thereof as a Public Nuisance" ("Abatement Notice"). Id. ¶ 11. The Abatement Notice advised Plaintiffs that the County would commence abatement of the vehicles listed and described in the attachment of the Abatement Notice if Plaintiffs failed to abate the vehicles or request a hearing within ten days. Cook's Mot. 4:3-8.

On June 24, 2005, the County, through its towing contractor Tony's Tow, seized and removed approximately seventeen vehicles from Plaintiffs' property. SUF ¶ 12. All of the vehicles removed by Tony's Tow were located at the top of the hill and all had been tagged for removal by the County. Id. ¶ 20. Apart from opening the gate and driving on the road, all of Tony's Tow activities on the Plaintiffs' property were confined to the top of the hill. Id. ¶ 22.

On August 9, 2005, Cook obtained a warrant from a Superior Court Judge that authorized entry onto the Plaintiffs' property without prior notice to and without the owner's presence, so long as not at night time. Cook's Mot. 4:27-28; 5:1-2. On August 11, 2005, Cook and Tony's Tow returned to the Plaintiffs' property with the warrant for the purpose of completing the County's abatement request. SUF ¶ 25. Cook removed the gate from the hinge. Cook's Mot. 5:2-5. In Cook's presence, Tony's Tow removed the remaining vehicles which Cook had tagged for removal. SUF ¶ 27.

On April 26, 2007, Plaintiffs filed their original complaint. Docket ("Doc") # 3. The operative complaint in this matter is the first amended complaint, which contains seven separate causes of action. Doc. # 31. On January 19, 2008, the Court issued a comprehensive order which dismissed all causes of action except for Plaintiffs' first and fourth claims for relief for violation of their Fourth Amendment rights under 42 U.S.C. Section 1983, Plaintiffs' seventh cause of action for declaratory relief against County, and Plaintiffs' municipal liability claims only as they pertain to the alleged Fourth Amendment violations. Doc. # 58. In the instant motions, Defendants' seek summary judgment on Plaintiffs' remaining claims.


A. Legal Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The purpose of summary judgment "is to isolate and dispose of factually unsupported claims and defenses." Cleotex v. Catrett, 477 U.S. 317, 323-324 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248-49 (1986). If the moving party meets its burden, the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed. R. Civ. P. 56(e) and citing Celotex, 477 U.S. at 323). The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

The mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient: "There must be evidence on which the jury could reasonably find for [the non-moving party]." Anderson, 477 U.S. at 252. This Court thus applies to either a defendant's or plaintiff's motion for summary judgment the same standard as for a motion for directed verdict, which is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id.

B. Fourth Amendment

Plaintiffs bring claims against Tony's Tow, Cook, and the County pursuant to 42 U.S.C. ยง 1983 for violations of their Fourth Amendment rights to be free from unreasonable search and seizure. Defendants move for summary judgment ...

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