Banks v. Department of Motor Vehicles for Cal.

• Decision Date: 17 February 2006
• Docket Number: No. CV 05-2037-JVS(RC).,CV 05-2037-JVS(RC).
• Citation: 419 F.Supp.2d 1186
• Parties: Anthony BANKS, an individual, Plaintiff, v. DEPARTMENT OF MOTOR VEHICLES, FOR the State of CALIFORNIA, a public entity; City of Los Angeles, a public entity; William J. Bratton, being sued in his individual and official capacity as Chief of Police for the City of Los Angeles; James A. Rubert, being sued in his individual and official capacity as a Captain for the Los Angeles Police Department; Officers Chapman, Serial no. 35964 and Fukui, Serial no. 22295, being sued in their individual and official capacity as Police Officers of the Los Angeles Police Department; Viertel's Automotive Services, being sued as the official towing agency for the Los Angeles Police Department and the City of Los Angeles; Bob Jones, being sued in his individual and official capacity as the General Manager of Viertel's Automotive Services; Carolyn Lucas, being sued in her individual and official capacity as a Driver Safety Manager 1, for the Department of Motor Vehicles, each and every individual being sued jointly and severally under their individual, official, personal, private and professional capacities, et al., Does 1 to 50, inclusive, Defendants.
• Court: U.S. District Court — Central District of California

419 F.Supp.2d 1186

Anthony BANKS, an individual, Plaintiff, v. DEPARTMENT OF MOTOR VEHICLES, FOR the State of CALIFORNIA, a public entity; City of Los Angeles, a public entity; William J. Bratton, being sued in his individual and official capacity as Chief of Police for the City of Los Angeles; James A. Rubert, being sued in his individual and official capacity as a Captain for the Los Angeles Police Department; Officers Chapman, Serial no. 35964 and Fukui, Serial no. 22295, being sued in their individual and official capacity as Police Officers of the Los Angeles Police Department; Viertel's Automotive Services, being sued as the official towing agency for the Los Angeles Police Department and the City of Los Angeles; Bob Jones, being sued in his individual and official capacity as the General Manager of Viertel's Automotive Services; Carolyn Lucas, being sued in her individual and official capacity as a Driver Safety Manager 1, for the Department of Motor Vehicles, each and every individual being sued jointly and severally under their individual, official, personal, private and professional capacities, et al., Does 1 to 50, inclusive, Defendants.

No. CV 05-2037-JVS(RC).

United States District Court, C.D. California.

February 17, 2006.

COPYRIGHT MATERIAL OMITTED

The plaintiff is appearing pro se.

Y. Christopher Nagakawa, Deputy Attorney General, Office of Attorney General of California, Los Angeles, CA, for Defendants Department of Motor Vehicles and Carolyn Lucas.

Wendy C. Shapero, Deputy City Attorney, Los Angeles City Attorney's Office, City Hall East, Los Angeles, CA, for defendant City of Los Angeles.

Eugene F. West and Ian Corzine, attorneys-at-law with the firm West & Miyamoto, Camarillo, CA, for defendants Viertel's Automotive Services and Bob Jones.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SELNA, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.

IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Court finds the first, second, third and eighth causes of action fail to state a claim upon which relief can be granted, and Judgment shall be entered dismissing those claims with prejudice; and (3) the Court finds the fourth, fifth, sixth and seventh causes of action are state law claims over which the Court declines to retain jurisdiction, and Judgment shall be entered dismissing those claims without prejudice.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.

JUDGMENT

Pursuant to the Order of the Court adopting the findings, conclusions, and recommendations of United States Magistrate Judge Rosalyn M. Chapman,

IT IS ADJUDGED that Judgment shall be entered dismissing with prejudice the first, second, third and eighth causes of action for failing to state a claim upon which relief can be granted and dismissing without prejudice the supplemental state law claims set forth in the fourth, fifth, sixth and seventh causes of action.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.

BACKGROUND

I

On July 14, 2005, defendants City of Los Angeles ("City") and William J. Bratton filed a motion to dismiss plaintiff's complaint, which defendants Chapman and Fukui later joined in; on July 26, 2005, defendants California Department of Motor Vehicles ("DMV") and Carolyn Lucas filed a motion to dismiss the complaint or, alternatively, for a more definite statement; and on August 9, 2005, defendants Viertel's Automotive Services and Bob Jones filed separate motions to dismiss the complaint and motions to strike the punitive damages from the complaint. On August 29, 2005, plaintiff Anthony Banks filed his opposition to the motion to dismiss filed by defendants City and Bratton, as well as a motion to strike the request for joinder of defendants Chapman and Fukui; on September 23, 2005, plaintiff filed an opposition to the motion to dismiss or for a more definite statement filed by defendants DMV and Lucas; and on November 3, 2005, plaintiff belatedly filed an opposition or motion to strike the motions to dismiss and strike filed by defendants Viertel's and Jones.¹ On September 2, 2005, defendants Chapman and Fukui filed an opposition to plaintiff's motion to strike their request for joinder, and plaintiff filed a reply on September 28, 2005. On November 22, 2005, defendants Viertel's and Jones filed an opposition to plaintiff filing a belated motion to strike.²

II

On March 4, 2005, in the United States District Court for the Eastern District of California, plaintiff Anthony Banks, a non-prisoner proceeding pro se, filed a verified complaint against defendants DMV and DMV Safety Manager Carolyn Lucas (collectively "DMV defendants"), City, William J. Bratton, Chief of the Los Angeles Police Department ("LAPD"), LAPD Captain James A. Rubert, LAPD Officers Chapman and Fukui (collectively "LAPD defendants"), Viertel's Automotive Services ("Viertel's") and Viertel's general manager Bob Jones (collectively "Viertel defendants"), and Does 1 through 10,³ in their official and individual capacities, claiming defendants violated his federal and state rights. On March 10, 2005, the action was transferred to this district court. In his complaint, plaintiff sets forth eight causes of action: (1) the first cause of action against LAPD defendants for violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, et seq; (2) the second cause of action against LAPD defendants and Viertel defendants for violating the Fourth Amendment; (3) the third cause of action against DMV defendants under various constitutional and statutory provisions; (4) the fourth cause of action for "harassment" against DMV defendants, defendant Jones and LAPD defendants; (5) the fifth cause of action for conversion against LAPD defendants and defendant Jones; (6) the sixth cause of action for unjust enrichment against LAPD defendants and defendant Jones; (7) the seventh cause of action for gross negligence against defendants DMV and City; and (8) the eighth cause of action for a temporary restraining order and preliminary and permanent injunctive relief and declaratory relief against DMV defendants. Plaintiff also seeks damages. Complaint at 13:20-14:6 and ¶ 22.

In his complaint and attached documents,⁴ plaintiff alleges the following facts to support his claims: On or about July 24, 2003, defendant Lucas "wilfully and unlawfully" sent to plaintiff at the "wrong" address, 901 E. 10th Street, Long Beach, CA 90813, a notice from DMV informing him that, as of August 23, 2003, his driving privileges were suspended because he failed to appear on a traffic ticket issued February 17, 2003, Complaint, ¶ 19, Exhs. K, P, and defendant Jones obtained the "wrong" address from an LAPD accident report dated February 8, 2003. Complaint, ¶ 19. Plaintiff's current address was, and continues to be, 6122 Eileen Ave., Los Angeles, CA 90043. Complaint, ¶ 19, Exhs. L—M. On March 5, 2004, defendants Chapman and Fukui stopped plaintiff while he was driving because his vehicle did not have a front license plate, discovered plaintiff was driving with a suspended license, and issued plaintiff a ticket for violating California Vehicle Code ("Veh. C.") §§ 5200 and 14601.1(a). Complaint, ¶¶ 16-19, Exhs. A, G, K. Then defendants Chapman and Fukui, acting in concert with Viertel defendants, seized, towed and impounded plaintiff's vehicle. Complaint, ¶¶ 16, 18, Exhs. A, G—H. Defendant Viertel would not allow plaintiff to recover his vehicle without paying $423.00, which amount JMG Auto Sales, the vehicle's legal owner, paid to repossess the vehicle on March 16, 2004. Complaint, ¶ 16, Exh. H, 0. On September 16, 2004, plaintiff was found not guilty of violating Veh. C. § 14601.1(a), and the charge of violating Veh. C. § 5200 was dismissed. Complaint, ¶ 16, Exh. B.

Plaintiff claims the loss of his vehicle prevented him from operating his messenger service and did not allow him to obtain employment as a professional driver. Complaint, ¶¶ 17-18. Furthermore, plaintiff claims that by towing his vehicle, defendants DMV and City "display[ed] a pattern of Racketeering activity involving conversion, extortion, grand theft and car jacking." Complaint, ¶ 18. Plaintiff also claims defendants DMV and City have a policy, practice, or custom of allowing their employees to engage in racial discrimination and racial profiling, and defendants Chapman and Fukui stopped plaintiff and cited him for Vehicle Code violations "because he is a Black male[.]" Complaint, ¶ 18.

DISCUSSION

III

Rule 12(b)(1) authorizes a court to dismiss a complaint for lack of subject matter jurisdiction. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint [on its face] or may be made as a `speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. General Tel. & Electronics, 594 F.2d 730, 733 (9th Cir.1979); White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). When considering a Rule 12(b)(1) motion that attacks the complaint on its face, the court must view the allegations of the complaint as...