McCain v. California Highway Patrol, 2:11-cv-01265 KJM KJN PS

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: KENDALL J. NEWMAN
• Parties: TERRYLYN MCCAIN, Plaintiff, v. CALIFORNIA HIGHWAY PATROL, et al., Defendants.
• Docket Number: No. 2:11-cv-01265 KJM KJN PS,2:11-cv-01265 KJM KJN PS
• Decision Date: 25 August 2011

TERRYLYN MCCAIN, Plaintiff,
v.
CALIFORNIA HIGHWAY PATROL, et al., Defendants.

No. 2:11-cv-01265 KJM KJN PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: August 25, 2011

ORDER AND FINDINGS AND RECOMMENDATIONS

Presently before the court is a motion attacking plaintiff's verified complaint, which was filed by defendants Mike's Towing Service, Inc. and Michael D. Olivarez ("Towing Defendants") and: (1) moves to dismiss plaintiff's civil rights claims pursuant to Federal Rule of Civil Procedure 12(b)(6); and, in the alternative, (2) moves for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e); and, as an additional alternative, (3) moves the court to declare plaintiff a vexatious litigant pursuant to 28 U.S.C. § 1927, and seeks sanctions pursuant to Federal Rule of Civil Procedure 11.¹ (See Dkt. Nos. 16, 33.) The undersigned heard the Towing Defendants' motion on its law and motion calendar on August 25,

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2011. Attorney Floyd Cranmore appeared on behalf of the Towing Defendants. Plaintiff, who is proceeding without counsel, appeared and represented herself at the hearing.

The undersigned has considered the briefs, oral arguments, and appropriate portions of the record in this case and, for the reasons stated below, recommends that the Towing Defendants' motion to dismiss be granted in part and denied in part. Specifically, the undersigned recommends that plaintiff's claims be dismissed with prejudice to the extent that those claims are premised on an alleged violation of plaintiff's "right to travel." However, the motion to dismiss should be denied in all other respects. Additionally, the undersigned denies the Towing Defendants' motion for a more definite statement and motion to declare plaintiff a vexatious litigant pursuant to 28 U.S.C. § 1927 and for Rule 11 sanctions.²

I. BACKGROUND

Plaintiff alleges in her verified complaint that on March 14, 2011, at approximately 7:30 p.m., she was driving eastward on "highway 4" in her automobile, a "1994 Jaguar SJX," when she was pulled over by CHP Officer Mangham. (See Compl. ¶¶ 7, 16-17, 23, 25-28, 73.) It appears from plaintiff's allegations that plaintiff refused to provide Officer Mangham with identification, registration, or both and was subsequently arrested, handcuffed, searched by Officer Jane Doe #1, placed in a patrol vehicle, booked into the San Joaquin County Jail, and cited for various traffic violations. (See id. ¶¶ 33-64, 73.)

Relevant here, plaintiff alleges claims against Mike's Towing Service, Inc.; Michael D. Olivarez, who is alleged to be the president and owner of the towing company; and "DOE #2," who is alleged to be a tow truck operator for the towing company. (See Compl. ¶¶ 10-12.) Specifically, plaintiff alleges that "DOE #2" from Mike's Towing Service, Inc.

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unlawfully seized plaintiff's vehicle and has possession of it. (Id. ¶¶ 68-69, 74.) Plaintiff alleges that Officer Mangham "ordered Plaintiff's private property to be seized and towed away." (Id. ¶ 62.) Plaintiff alleges that the Towing Defendants acted jointly or in concert with the CHP officers involved in the traffic stop and arrest of plaintiff. (See id. ¶¶ 1, 10-12, 74-75, 77.)

Plaintiff alleges violations of her constitutional rights provided by the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (See Compl. ¶¶ 1, 75, 79-83.) Each of plaintiff's enumerated claims for relief alleges, at least in part, that the defendants' actions violated her "right to travel on the public right of ways [sic]." (See id. ¶¶ 79-83.)

II. THE TOWING DEFENDANTS' REQUESTS FOR JUDICIAL NOTICE

The Towing Defendants filed two requests for judicial notice. (Dkt. Nos. 9, 37.) Their first request for judicial notice asks the court to take notice of documents listed as Exhibits A through J. Although the Towing Defendants cite absolutely no legal authority in support of their request for judicial notice, the undersigned grants the request for judicial notice as to Exhibits A, B, C, D, G, H, and I, which consist of court records from other actions proceeding in other courts that have a direct relation to the Towing Defendants' motion for sanctions. See Betker v. U.S. Trust Corp. (In re Heritage Bond Litig.), 546 F.3d 667, 670 n.1, 673 n.8 (9th Cir. 2008) (citing U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002); Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995).³ Exhibits A through D consist of public court filings from the matter of McCain v. Mike's Towing Service, Inc., No. 39-2008-00198825-CL-PT-STK, filed in San Joaquin County Superior Court. Exhibits G

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through I consist of public court filings from the matter of McCain v. United States, et al., No. 2010 CA 001792B, filed in the Superior Court for the District of Columbia.

The undersigned denies the Towing Defendants' first request for judicial notice as to Exhibits E, F, and J. Exhibit E appears to be a federal tort claim presentation form signed by plaintiff. However, there is no basis to conclude that Exhibit E is part of any court file or is otherwise the proper subject of judicial notice. Similarly, Exhibit F is a document entitled "Notice of International Commercial Claim Within Admiralty ab initio Administrative Remedy" which appears to have been prepared by plaintiff. Again, the undersigned has no basis to conclude that Exhibit F is part of any court file or is otherwise the proper subject of judicial notice. Additionally, the undersigned does not take judicial notice of Exhibit J, which consists of a "screen shot" of the San Joaquin County Sheriff's website and is not the proper subject of judicial notice.

The Towing Defendants' second request for judicial notice requests that the court take judicial notice of a motion filed by plaintiff in this action that is already part of the court's record. The undersigned denies this request as moot.

Finally, the Towing Defendants filed a letter dated March 28, 2011, purportedly from plaintiff to defendant Mike's Towing Service, Inc. (See Bossi Decl. ¶ 1 & Ex. 1, July 18, 2011, Dkt. No. 35, Doc. Nos. 35, 35-1.) The undersigned has not considered this letter because: (1) the Towing Defendants did not request that the court take judicial notice of it; and (2) it is not the proper subject of judicial notice.

III. DISCUSSION

A. The Towing Defendants' Motion to Dismiss

1. Standards Governing A Motion to Dismiss, Fed. R. Civ. P. 12(b)(6)

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard

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of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).

The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).

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2. The Towing Defendants' Motion to Dismiss Should Be Granted In Part and Denied In Part

Plaintiff's complaint is awkwardly pled in several respects, but it is clear that plaintiff has asserted claims for relief pursuant 42 U.S.C. § 1983, alleging that the Towing Defendants acted jointly or in concert with CHP officers to violate plaintiff's...