Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Yan Sui, Pei-U Yang v. Southside Towing

July 18, 2011

YAN SUI, PEI-U YANG,
PLAINTIFFS,
v.
SOUTHSIDE TOWING, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Proceedings

Plaintiffs Yan Sui ("Sui") and Pei-yu Yang ("Yang") signed and filed a verified complaint for damages against defendants Southside Towing ("Southside"), David Padua ("Padua"), Richard Rodrigues ("Rodrigues"), and Does 1 through 10. Plaintiffs allege that Southside and its "alter egos" and "agents"-Padua, Rodrigues, and the Doe defendants-violated plaintiffs' rights under federal and state law in connection with the towing and selling of plaintiffs' vehicle and the reporting of a debt against Yang. The complaint pleads claims for relief pursuant to 42 U.S.C. § 1983, the Fair Credit Reporting Act ("FCRA"), see 15 U.S.C. § 1681s-2, and the California Consumer Credit Reporting Agencies Act ("CCRAA"), see Cal. Civ. Code §§ 1785 et seq.

Because the complaint fails to state a federal claim on which relief can be granted, it is dismissed with leave to amend. Plaintiffs have three options:

(1) Plaintiffs may continue this action in this court by filing a document labeled "First Amended Complaint" within twenty-one (21) days of the date of this order. To withstand dismissal, the amended complaint must attempt to correct the factual and legal defects described below.

(2) Plaintiffs may file a "Notice of Intent Not to Amend Complaint" within twenty-one (21) days of the date of this order. The timely filing of a notice of intent not to amend will be construed as an indication that plaintiffs wish to challenge dismissal of the complaint by seeking review of this order in the Ninth Circuit Court of Appeals. If the court receives timely written notice of plaintiffs' intent not to file an amended complaint, this action will be dismissed with prejudice, and plaintiffs will be free to appeal the order of dismissal. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-1066 (9th Cir. 2004); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

(3) Plaintiffs may do nothing in response to this order. If plaintiffs do not respond to this order by filing either a timely amended complaint or a timely notice of intent not to amend, plaintiffs will be deemed to have consented to the dismissal of this action with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with this order. See Edwards, 356 F.3d at 1063-1066.

Plaintiffs' Allegations

The following facts are derived from the complaint and attached exhibits. Plaintiffs are homeowners and members of the "2176 Pacific Homeowners Association" (the "HOA"). In September 2006, the HOA notified plaintiffs that by parking their van, which was disabled, in their assigned parking space, they were in violation of HOA rules and regulations. Yang was the registered owner of the van, and Sui was the primary driver. On February 10, 2007, after notice to plaintiffs, Southside towed plaintiffs' van at the behest of the HOA. The HOA did not amend the "CC&Rs" (covenants, conditions, and restrictions) with respect to the parking rules and maintained that no amendment was required to adopt rules to address parking issues. On "information and belief," plaintiffs allege that there were no current, effective, amended parking rules that disallowed the parking of the van.

The tow truck driver told Sui that the van would be sent directly to the junk yard to be disposed of. On February 23, 2007, however, Southside sent plaintiffs a "Notice of Pending Lien Sale for Vehicle Valued at $4,000 or less." The Notice stated that the amount of Southside's lien for storage and towing was $681. Plaintiffs contested the lien with the California Department of Motor Vehicles.

On May 14, 2007, Southside reported a debt of $1,597 against Yang resulting from the accrued towing and storage charges.

In February 2010,"as a direct result of" the debt reported by Southside, plaintiffs' attempt to refinance their mortgage was unsuccessful, and Yang's credit application to Discover Financial Services was denied.

On May 20, 2010, Southside sent Yang a letter demanding payment of a debt in the amount of $2,098.85. Plaintiffs allege that defendants "conspired with" the HOA "to conceal the material fact that there were no effective parking rules to tow away the van," and that they did not immediately "dump" the van but instead intended to sell it and charge plaintiffs.

Plaintiffs' first claim for relief is a section 1983 Fourth Amendment claim against all defendants alleging that defendants unlawfully seized plaintiffs van, depriving plaintiff's of their rights to be free from unreasonable seizures, to be free from the infliction of cruel and unusual punishment, and not to be deprived of property without due process of law. [Complaint 5-7]. Plaintiff's second claim for relief is a section 1983 claim against all defendants alleging that defendants' seizure and sale of the van and the reporting of a "false debt" against Yang deprived plaintiffs of their property and "shock the conscience," in violation of plaintiffs' Fourteenth Amendment substantive due process rights. [Complaint 7-8]. Plaintiffs' third claim for relief is for intentionally and maliciously reporting a false debt against Yang in violation of the FCRA, 15 U.S.C. ยง ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.