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Gilles v. Wineteer

United States District Court, S.D. California

November 14, 2019

MARK CHRISTOPHER GILLES, Plaintiff,
v.
DALE WINETEER, d.b.a. A TO Z ENTERPRISES, INC., d.b.a. ROADONE SAN DIEGO; CITY OF SAN DIEGO acting in capacity of SAN DIEGO POLICE DEPARTMENT; STEVE GORDON in his capacity as Director of STATE OF CALIFORNIA DEPARTMENT OF MOTOR VEHICLES; KATHLEEN WEBB in her capacity as Chief Deputy Director of STATE OF CALIFORNIA DEPARTMENT OF MOTOR VEHICLES; CALIFORNIA DEPARTMENT OF MOTOR VEHICLES; and DOES 1-25, inclusive, Defendants.

          ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE ECF NO. 2.

          HON. GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE

         On July 8, 2019, Plaintiff Mark Christopher Giles (“Plaintiff”) filed his initial complaint in California Superior Court. ECF No. 1-2 at ¶ 11. On August 5, 2019, Plaintiff filed his first amended complaint (“FAC”) alleging five causes of action: (1) wrongful conversion, id. at ¶¶ 13-102; (2) fraud / intentional misrepresentation, id. at ¶¶ 103-55; (3) “preliminary injunction, ” id. at ¶¶ 156-224; (4) deprivation of property under Monell, id. at ¶¶ 225-83; and (5) conspiracy to violate Plaintiff's rights. Id. at ¶¶ 284- 330. Plaintiff named the City of San Diego (“Defendant” or “City”) as a defendant as to the First, Second, Fourth, and Fifth claims. Id. at ¶¶ 11, 34, 69, 82. Plaintiff's FAC contain none of the exhibits attached to his original complaint. Id. at ¶ 11.

         On August 9, 2019, Defendant removed the action to federal court alleging federal question jurisdiction. ECF No. 1. On August 16, 2019, Defendant filed a motion to dismiss Plaintiff's FAC or, alternatively, for an order compelling Plaintiff to provide a more definite statement of fact. ECF No. 2. On August 29, 2019, Plaintiff filed a response. ECF No. 5. On September 12, 2019, Defendant filed a reply. ECF No. 6.

         The Court now addresses whether Plaintiff has adequately pled a claim for which relief can be granted as to the First, Second, Fourth, and Fifth causes of action. The Court finds that Plaintiff has not done so and GRANTS Defendant's motion to dismiss without prejudice. The Court GRANTS Plaintiff leave to amend the FAC and INSTRUCTS Plaintiff that any exhibits cited in any complaint should be attached to it. Plaintiff may refile a second amended complaint no later than December 15, 2019.

         I. Standard of Review

         A Rule 12(b)(6) motion compels the Court to dismiss a complaint that fails “to state a claim upon which relief can be granted.” Fed. R. Civ. Pro. 12(b)(6). To “survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 566 U.S. 662, 677 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Iqbal, 556 U.S. at 678). Consequently, while “detailed factual allegations” are unnecessary, the complaint must contain more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.

         The Court must accept all factual allegations in the complaint as true and must draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, “to be entitled to the presumption of truth, allegations in a complaint . . . must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Court need not presume the validity of any “a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986) (quotations omitted).

         II. Factual Background

         The FAC, when stripped of conclusory legal assertions, contains the following factual allegations. Plaintiff owns a white 1996 Plymouth Voyager (the “car”). ECF No. 1-2 at ¶¶ 9, 233. Plaintiff's car was worth $2, 000 on June 22, 2019 and contained “irreplaceable legal materials” allegedly worth about $10, 000. Id. at ¶ 10. Defendant Dale Wineteer[1] provides towing and storage services to Defendant City. Id. at ¶ 19.

         On or about June 22, 2019, Mr. Wineteer sent a tow truck to 4958 Newport Avenue, the location where Plaintiff's car was parked. Id. at 114.[2] Posted signs prohibited parking there after 4 a.m. Id. at ¶ 120. The truck was dispatched at 4:15:20 p.m. from the lot and arrived at 4:25:20 p.m. Id. at ¶¶ 115, 268. Plaintiff returned to his car before 4:00 a.m., but the company had already placed it on the tow truck by then. Id.

         Various officers were present at the scene, including Sergeant Esmeralda Tagaban, Officer Cuellar (Doe #2), and, perhaps, Officer Kyle Webb. Id. at ¶¶ 115-17, 117 n.12. Plaintiff observed the tow truck operator attempt to hook another car to the truck. Id. at ¶ 116. Plaintiff asked the tow truck operator to “drop” his property. Id. at ¶ 117. One of the officers told Plaintiff that “once a vehicle is on the truck, we can't tell them to ‘drop' it.” Id. at ¶ 117. The truck left and returned to the lot by 4:36:20 p.m. Id. at ¶ 115.

         On June 22, 2019, Plaintiff requested that Mr. Wineteer return his car. Id. at ¶ 24. Plaintiff also requested that Mr. Wineteer return the property inside the car on June 22, 2019 and June 24, 2019. Id. at ¶ 31. Mr. Wineteer did not return either. Id. at ¶ 32. Mr. Wineteer did not show Plaintiff a picture documenting the parking violation. Id. at ¶ 36.

         On June 24, 2019, Plaintiff attempted to pay Doe 1 - an individual named “Earl” who, the Court infers, worked at the towing facility owned by Mr. Wineteer - $402 to retake possession of his car. Id. at ¶ 37. Doe 1 refused to accept the payment. Id. at ¶¶ 38, 55. Plaintiff then called the police. Id. at ¶ 56. SDPD Officers Heather Leavell and Scott Springer arrived on the scene. Id. at ¶ 57. Plaintiff requested that they call their supervisor, SDPD Supervisor Keelan McCullough, who arrived five minutes later. Id. One of the SDPD officers informed Plaintiff that his car had been towed pursuant to California Vehicle Code § 22651(m), which permits the towing of cars parked in violation of posted street signs. Id. at ¶¶ 259-20.

         After 20 to 40 minutes of talking to Plaintiff, Supervisor McCullough convinced Doe 1 to allow Officers Leavell and Springer to escort Plaintiff to his car to retrieve his identification documentation. Id. at ¶ 58. Plaintiff's car had plates displaying the number “§17459.” Id. at ¶ 59. Plaintiff took a video showing that his car was “forcibly entered without his consent, and had been ransacked, for no legitimate purpose.” Id. at ¶ 67.

         Before Plaintiff left, Doe 1 provided Plaintiff with a printout of the towing and storage information. Id. at ¶ 112. The printout showed that only eleven minutes transpired between the tow truck's arrival to Newport Avenue and its return to the lot. Id. at ¶ 115. The drive from Newport Avenue to the lot alone takes 11 to 14 minutes. Id. At 5:03:34 p.m. on June 24, 2019, Plaintiff got a “call receipt” from Doe 1 stating his car had no plates or tags on it when towed. Id. at ¶ 121.

         On June 28, 2019, Plaintiff requested a post-storage hearing from the SDPD Traffic Division / Tow Administration (“TDTA”). Id. at ¶ 89. On July 1, 2019, at approximately 2:44 p.m., a TDTA Officer called Plaintiff and held an eight-minute telephonic hearing. Id. at ¶¶ 90-91. The TDTA Officer determined the tow was valid and informed Plaintiff that a lien sale of Plaintiff's property would occur “sometime soon.” Id. at ¶ 91. Also, on June 28, 2019, Plaintiff received an “SDPD Records Division / Teletype Section” letter indicating his car had no plates or tags when towed. Id. at ¶ 121.

         On July 5, 2019, Mr. Wineteer mailed a “Notice of Pending Lien Sale” to Plaintiff. Id. at ¶ 92. Plaintiff mailed a request to the California Department of Motor Vehicles (“DMV”) to stop the sale. Id. The DMV received his request on July 11, 2019. Id.

         On July 22, 2019, Plaintiff returned to Mr. Wineteer's tow lot located at 3801 Hicock Street. Id. at ¶ 143. Plaintiff's vehicle was no longer there. Id. at ¶ 143. A yard attendant, Doe 3, provided Plaintiff with a call sheet indicating that Plaintiff's car had no plates when towed on June 22, 2019 and said he had photos showing the same. Id. at ¶¶ 144-46. The call sheet also indicated that Plaintiff's car had been moved to another lot, station 7 located at 4247 Otay Mesa Road. Id. at ¶ 146.

         III. Analysis of ...


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