United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE
ECF NO. 2.
GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE
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.
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.
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.
Standard of Review
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.
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).
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 provides towing and storage
services to Defendant City. Id. at ¶ 19.
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. 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.
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.
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.
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
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
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 ¶
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.
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.
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.
Analysis of ...