Spitzer v. Aljoe

• Decision Date: 06 April 2015
• Docket Number: Case No. 13-cv-05442-MEJ
• Court: U.S. District Court — Northern District of California
• Parties: THOMAS A. SPITZER, et al., Plaintiffs, v. TRISHA A. ALJOE, et al., Defendants.

THOMAS A. SPITZER, et al., Plaintiffs, v. TRISHA A. ALJOE, et al., Defendants.

Case No. 13-cv-05442-MEJ

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

April 6, 2015

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

Re: Dkt. No. 72

INTRODUCTION

Plaintiffs Thomas "Leroy" Spitzer and Craig J. Spitzer("Plaintiffs") bring this action under 42 U.S.C. § 1983 and related state law claims, seeking damages stemming from the towing of Leroy's truck and an abatement order for Plaintiffs' property in Pleasanton, California.Pending before the Court is Plaintiffs' Motion for Leave to File a Third Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a).Dkt. No. 72.Former-DefendantBenjamin McGrew and the City Defendants filed separate oppositions.Dkt. No. 75("McGrew's Opp'n") & Dkt. No. 76("City's Opp'n").Plaintiffs filed two separate Replies.Dkt. No. 79("Reply to City's Opp'n") & Dkt. No. 80("Reply to McGrew's Opp'n").The Court found this matter suitable for disposition without oral argument and vacated the March 12, 2015 hearing.Dkt. No. 83;seeFed. R. Civ. P. 78(b);CivilL.R. 7-1(b).Subsequently, the Court ordered supplemental briefing from the City Defendants and Plaintiffs addressing whether the statute of limitations barred claims against two of the police officers sought to be named as defendants.Dkt. No. 85.The parties both timely responded.SeeDkt. No. 94("Pls.'Suppl.Br.");Dkt. No. 95("City's Suppl.Br.").Having considered the parties' positions, relevant legal authority, and the record in this case, the CourtGRANTS IN PART and DENIES IN PARTPlaintiffs' Motion for the reasons set forth below.

BACKGROUND

Plaintiffsrequest leave to file an amended complaint for two primary reasons.SeeProposed Third Am. Compl. ("TAC"), Dkt.No. 72-1.First, Plaintiffs seek to name the "Doe"Defendant police officers from their earlier complaints as Officer Sergio Martinez, Sergeant Robert Leong, and Officer Ryan Tujague.Seeid.Second, Plaintiffs seek to re-assert claims against Benjamin McGrew, the court-appointed receiver over Plaintiffs' real and personal property at issue in this litigation.Seeid.;see alsoSecond Am. Compl. ("SAC")¶ 13, Dkt. No. 27.

Except where noted, the following factual background is taken from Plaintiffs' SAC, filed April 20, 2014.Because Plaintiffs' TAC focuses on McGrew and the newly named Police Officers, the Court discusses the facts most relevant to claims against those potential defendants.

A.Claims Regarding Plaintiffs' Residence/Property

Plaintiffs are co-owners of a single-family residence located at 4719 Orangewood Court in Pleasanton, California (the "Property").SAC ¶ 5.On October 21, 2011, City agents executed an inspection warrant to enter the Property.Id.¶ 22.The City subsequently issued a Notice and Order to Repair and Abate the Property on December 1, 2011.Id.¶ 36.The Order provided that Plaintiffs must "Vacate Immediately" and "Repair or Demolish and Abate."Id.The Order included notice that "occupying or entering the building, or any portion thereof will result in the arrest of the occupants for a misdemeanor violation of the Pleasanton Municipal Code and the State Building Standards Code."Id.(emphasis in original).As a result of the Order, Plaintiffs allege that Leroy lost use of and access to his personal property, and they were denied the right to abate the violations themselves by the prohibition of their entry to the Property.Id.¶ 38.

After the time specified for abatement and repair had expired, Plaintiffs allege that the City failed to call for a hearing required by the Pleasanton Municipal Code.Id.¶ 39.Instead, Plaintiffs were sent a "Final Notice" and "Demand to Abate" on February 3, 2012, stating that legal action would be commenced upon failure to comply with the noticed demands by February 15, 2012.Id.¶ 40.

On August 3, 2012, the City filed an Ex-Parte Petition to Appoint a Receiver.Id.¶ 41.The Alameda County Superior Court appointed McGrew as Receiver on September 18, 2012.Id.¶ 113; Req. for Jud. Not., Ex. 1, Dkt.No. 32-1.¹McGrew took possession of the Property on September 25, 2012.SAC¶ 113.Plaintiffs allege that McGrew falsely stated he had filed his required receiver's bond with his receiver's oath in his Initial Report filed on Nov. 24, 2012, but his bond was not submitted to the court until Feb. 28, 2014.Id.

After taking possession, McGrew allowed Plaintiffs to work at the Property to remove Leroy's personal possessions and do remediation work.Id.¶ 114.Plaintiffs worked through December 2012 to clean the Property, during which time Plaintiffs allege McGrew admitted personal problems that prevented him from obtaining financing to complete remediation work.Id.¶¶ 115-17.However, after a break in Plaintiffs' work between December and February, Plaintiffs allege that the City threatened to have McGrew removed for allowing Plaintiffs to do the remediation work, at which point McGrew barred Plaintiffs and their friends from working and ceased all communication with them.Id.¶¶ 118, 122.Plaintiffs allege that McGrew continued communication with the City, in violation of his duty of neutrality.Id.

During the months following his appointment, McGrew did not produce the monthly reports or inventory required by the Superior Court, and he did not pay property taxes on the Property.Id.¶ 119.

On July 17, 2013, McGrew executed a clean-up contract with a business entity called Decon.Id.¶ 120.Plaintiffs lost the cost of the Decon contract, through its charge by the receiver to the estate, and Leroy lost about an equal value of his personal property stored in his garage, which was given to charities, recycled for over $5,000 in cash, and converted by Decon personnel without credit to the estate.Id.¶ 121.After McGrew filed untimely reports for May through July, Plaintiffs allege that it became evident that the City and its agents not only had knowledge of McGrew's execution of the Decon contract, but they also aided and abetted its unlawful execution by assisting and advising McGrew in its execution.Id.¶ 123.

Based on these allegations, Plaintiffs contend that McGrew, in concert with the other named Defendants, jointly acted, participated in or directed, aided and abetted, and agreed and hada meeting of the minds to seize and finally deprive Leroy of his personal property by barring him from entering and working to abate the conditions at the Property, and by aiding and abetting execution of an unnecessary and unreasonably costly clean-up contract by Decon without required prior approval of the court.Id.¶ 124.

In their SAC, Plaintiffs asserted the following causes of action under 42 U.S.C. § 1983 against McGrew: (1)Defendants' seizure of Leroy's personal property was unreasonable and in violation of the Fourth Amendment of the United States Constitution(id.¶ 125);(2)Defendants' seizure of Leroy's personal property without notice or hearing violated Plaintiffs' procedural due process rights under the Fourteenth Amendment(id.¶ 127);(3)Defendants' unlawful execution of the Receiver's contract violated Plaintiffs' First Amendment rights of free speech and access to the courts, because Plaintiffs did not have the opportunity to object before it was executed (id.¶ 129); and (4)Defendants acted in furtherance of an overall conspiracy to unreasonably seize and deprive Plaintiffs of the Property and personal property without due process of law (id.¶ 130).

McGrew moved to dismiss Plaintiffs' claims against him on May 26, 2014, which the Court granted after finding that it lacked jurisdiction because Plaintiffs failed to satisfy a necessary precondition to the initiation of suit against him; namely, the securing of permission to do so from the Superior Court.Dkt. No. 44.On July 23, 2014, Plaintiffs brought a motion to alter the Court's order dismissing McGrew. Dkt. No. 55.The Court denied that motion, finding that Plaintiffs had failed to comply with the Local Rules and had failed to present any newly discovered evidence or to otherwise elucidate an error of law.Dkt. No. 59.

Plaintiffs' TAC seeks to re-assert those claims on the grounds that they are outside of McGrew's duties as receiver.SeeTAC ¶ 129.Plaintiffs also seek to assert new claims against McGrew for the seizure of Leroy's personal property, as well as claims related to McGrew's grant of a Deed of Trust on the Property.Id.

B.Claims Regarding Leroy's Mazda

On November 7, 2011, a California Highway Patrol officer ordered Leroy's red Mazda pickup truck towed pursuant to California Vehicle Code § 22669(b)(removal of abandoned vehicles) while it was parked in front of Leroy's house where he normally parked it.SAC ¶ 23.Plaintiffs seek to name this officer as Officer Martinez.TAC ¶¶ 23-25.Leroy was not present when it was towed.SAC ¶ 23.Plaintiffs allege that the Mazda was not a hazard to traffic or public safety or a target of vandalism or theft.Id.It was registered, operable, and regularly driven.Id.At the time it was towed, it was Leroy's only transportation.Id.

The same day as the towing, Leroy went to the City of Pleasanton Police Department to pay the required fees to release his towed vehicle.Id.¶ 25.The Police Department staff told Leroy that his Mazda could not be released and to come back later to talk to a police officer named "Lt. Leone," who was not then available.Id.¶ 26.When Leroy later met with that officer, he alleges he saw that name on a tag on the officer's uniform.Id.However, Plaintiffs allege that they could not find an officer by that name in Police Department's public records.Plaintiffs' SAC named that officer as "defendant police officer Doe 1."Id.Plaintiffs seek to name this officer as Officer Martinez.TAC ¶¶ 23-25.

For a week, Leroy went back to the Police Department and called multiple times asking for Police Officer Doe 1,...