Judge: Malcolm Mackey, Case: 21STCV46348, Date: 2022-10-18 Tentative Ruling
Case Number: 21STCV46348 Hearing Date: October 18, 2022 Dept: 55
AMMARI
v. CITY OF BURBANK 21STCV46348
Hearing Date: 10/18/22,
Dept. 55
#13: DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
Notice: Okay
Opposition
Filed
MP:
Defendant, City of Burbank
RP:
Plaintiff, Sami Ammari
Summary
On 12/20/21, Plaintiff SAMI AMMARI filed a Complaint
against the CITY OF BURBANK.
On 5/31/22, pursuant to stipulation, Plaintiff filed a
First Amended Complaint, alleging that, because Plaintiff’s type of
advertising on his vehicle is disliked, officers of the City of Burbank,
without prior notice, have seized and impounded motor vehicles owned,
possessed, or used, by plaintiff, for purported violations of the 72-hour
parking restrictions in Burbank Municipal Code §6-1-1010.
The causes of action are:
1. DECLARATORY
AND INJUNCTIVE RELIEF RE VEHICLE CODE PREEMPTION OF CITY ORDINANCE.
2. DECLARATORY
AND INJUNCTIVE RELIEF RE VIOLATION OF CALIFORNIA DUE PROCESS CLAUSES.
3. DECLARATORY
AND INJUNCTIVE RELIEF RE CALIFORNIA STATE PRIVILEGES OR IMMUNITIES.
4. DECLARATORY
AND INJUNCTIVE RELIEF, AND FOR DAMAGES FOR VIOLATIONS OF PLAINTIFF’S CIVIL
RIGHTS.
MP
Positions
Moving party requests an order sustaining the demurrer
to each claim of the First Amended Complaint, on grounds including the
following:
·
Burbank Municipal Code (“BMC”) § 6-1-1010
is authorized by the California Vehicle Code to restrict parking and impound
vehicles. (See Cal. Veh. Code §§ 25507, 25507.1, 22507.2, 22507.5.)
Vehicle
Code § 22651(k) allows for impound “when any vehicle is parked or left standing
upon a highway for 72 or more consecutive hours in violation of a local
ordinance authorizing removal.” BMC §
6-1-1010 permits police officers to impound a vehicle that is parked in the
same block for 72 hours or more.
o
In Spicer v. City of Camarillo
(2011) 195 Cal.App.4th 1423, the appellate court rejected plaintiff’s civil
rights claims and recognized: (1) the validity of a 72-hour parking
restriction; (2) that a municipal ordinance restricting parking is permitted by
the Vehicle Code; and (3) that Vehicle Code § 22651(k) authorizes law
enforcement to remove a vehicle parking for more than 72 consecutive hours. (Id.
at 1425, 1427-1428.) The court upheld a “broadened” definition of parking
or standing, similar to Burbank’s definition.
o
Vehicle Code § 22651(k) and BMC § 6-1-1010
are unambiguous. California Code §463 expressly defines “parking” and BMC § 6-1-1010
sufficiently describes how to avoid violation of the ordinance – not parking on
the same block.
o
Plaintiff offers no support for his
proposition that to be “parked or standing” for 72 consecutive hours, a vehicle
must be motionless throughout that time. Plaintiff cannot insert his own
analysis that the statutory definition of parking indicates that the word means
the same as standing in order to plead that the City exceeds the scope of its
legislative authorization.
·
The FAC fails to state critical facts such
as the date, length of time the Vehicle was parked, and the location of the
Vehicle when it was impounded. These are necessary for the City to be on notice
of possible defenses such as lack of standing, mootness, lack of ripeness, or
statute of limitations.
·
The FAC fails to allege any substantive
injury. Damages under § 1983 must have caused compensable injury. (Wood v.
Strickland (1975) 420 U.S. 308, 319.) .
·
Every fact essential to the existence of
statutory liability must be plead with particularity, including the existence
of a statutory duty. (Herd v. County of San Bernardino (2018) 311F.Supp.
3d 1157, 1171; Susman v. City of Los Angeles (1969) 269 Cal.App.3d 803,
808.) None of the four causes of action
is pled with particularity to notify the City of the occurrence of any incident
where he moved his van within the same street, within a 72-hour period yet his
van was seized or impounded by the City.
·
Plaintiff fails to allege a policy,
custom, or practice that would confer liability under Monell v. Dept. of
Social Services (1978) 436 U.S. 658, which is required to allege a § 1983
action.
o
Plaintiff fails to identify when alleged
repeated instances of depriving Plaintiff of his property occurred or how the
alleged discriminatory parking enforcement was ‘promulgated either by…
lawmakers or by those whose edicts or acts may fairly be said to represent
official policy.” (Bach v. County of Butte (1983) 147 Cal.App.3d 555,
569.)
o
Plaintiff fails to demonstrate that there
is a practice of sufficient duration, frequency, and consistency that it is the
traditional method of carrying out the discriminatory policy. No specific facts that suggest the policy is
being applied to others differently than Plaintiff.
RP
Positions
·
Burbank’s 72-hour parking restriction
expands parking restrictions beyond what is authorized by the Legislature,
exceeding delegated authority. Vehicle Code § 22651(k) allows impounding of any
vehicle that is “parked or left standing… for 72 or more consecutive hours.” Plaintiff
alleges that this definition could not include when a vehicle has been in
motion at any point in a 72-hour period; however, Burbank’s restriction expands
the plain meaning of “park” by stating that a vehicle has been parked “successive[ly]
within a single block over a greater than 72-hour period shall be deemed to
have been motionless for that entire time.
·
BMC §6-1-1010 is vague. It does not define
the length of time that must pass before two instances of parking within a
single block will not be deemed “successive.”
·
Plaintiff has alleged that senior City
employees have confirmed to him that he was targeted for extra enforcement
because of active hostility towards Plaintiff’s means of advertising. (FAC ¶
9.)
Demurrer
A demurrer for sufficiency tests whether the complaint
states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740,
747.) A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, the defects must be apparent on the face of the
pleading or via proper judicial notice. (Code Civ. Proc., §§ 430.30, 430.70; Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) At the pleading
stage, a plaintiff need only allege ultimate facts sufficient to apprise the
defendant of the factual basis for the claim against him. (Semole v.
Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The court assumes the truth of
the complaint’s properly pleaded or implied factual allegations. (E-Fab,
Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (S.
Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) Courts
generally allow one or more times to amend a complaint, after sustaining a
demurrer, even without any request for leave to amend. (McDonald v. Sup. Ct. (1986) 180
Preliminary
Matter – Vague and Uncertain
Defendants claim that the allegations in the FAC do
not contain sufficient facts such as when Plaintiff was cited, where he was
cited, or how long the Vehicle was parked before being cited. However, at the
demurrer stage, this specificity is not required; only ultimate facts
sufficient to apprise the defendant of the factual basis for the claim against
him. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721.) Plaintiff’s failure to plead specific dates is
not detrimental because the dates are not essential to Plaintiff’s causes of
action, and the lack of dates does not bar plaintiff from raising these
defenses in an answer. The Court believes that Plaintiff has plead sufficent
ultimate facts.
California
Vehicle Code Preemption of City Ordinance
A general demurrer to a cause of action for
declaratory relief must be overruled as long as an actual controversy is
alleged; the pleader need not establish it is also entitled to a favorable
judgment. (See New Livable Calif. v. Association of Bay Area
Governments (2020) 59 Cal.App.5th 709, 715-717.) A declaratory relief
claim is subject to general demurrer where it relates to a substantive claim
that is invalid as a matter law. (Ball v. FleetBoston
Fin'l Corp. (2008) 164 Cal.App.4th 794, 800.)
“To qualify for
declaratory relief, a party would have to demonstrate its action presented two
essential elements: (1) a proper subject of declaratory relief, and (2) an
actual controversy involving justiciable questions relating to the party’s
rights or obligations.” (Jolley v. Chase
Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) Declaratory relief is a
proper remedy to determine the constitutionality of a statute. (Lane v. City
of Redondo Beach (1975) 49 Cal.App.3d 251.)
The “actual controversy” requirement concerns the existence of present
controversy relating to the legal rights and duties of the respective parties
pursuant to contract, statute, or order. (See Maguire v. Hibernia S. &
L. Soc. (1944) 23 Cal.2d 719, 728.) “For a probable future controversy to
constitute an ‘actual controversy,’ however, the probable future controversy
must be ripe. A ‘controversy is “ripe” when it has reached, but has not passed,
the point that the facts have sufficiently congealed to permit an intelligent
and useful decision to be made.” (Environmental Defense Project of Sierra
County v. County of Sierra (2008) 158 Cal.App.4th 877, 885.)
Plaintiff alleges that BMC §6-1-1010 is invalid
because it inappropriately exceeds the authority granted to the City by the
California Legislature. Plaintiff requests a determination and declaration of
plaintiff’s and defendants’ respective rights and duties under BMC §6-1-1010.
The parties dispute that the ordinance exceeds the legislative authority
granted to the City by expanding the definition of “parking.”
The Court finds that the demurrer stage is not the
appropriate time for determining the validity of the statute and whether or not
it is preempted. In a demurrer, the moving party must show that the plaintiff’s
complaint does not state facts sufficient to state a cause of action or that a
valid defense exists. In a claim for declaratory relief, a party need not
establish it is entitled to favorable judgment, only show that an actual
controversy exists. (See New Livable Calif. v. Association of Bay Area
Governments (2020) 59 Cal.App.5th 709, 715-717.)
The Court finds
that Plaintiff has shown an actual controversy sufficient to withstand his
claim for declaratory relief. Plaintiff states that “officers of the City of
Burbank have seized and impounded motor vehicles owned, possessed, or used by
plaintiff, for purported violations of the 72-hour parking restrictions.” (FAC
¶ 8.) Plaintiff states that the City has regularly done so “disregarding clear
circumstantial evidence, that the vehicle being seized and impounded has not in
fact remained motionless at a single location for more than 72 consecutive
hours,” (FAC ¶ 8,) thus, complying with Plaintiff’s interpretation of a
constitutional ordinance. Plaintiff also states that “it is the intent of the
City of Burbank to continue its unlawful enforcement of its unlawful ordinance
in this fashion.” (FAC ¶ 8.) Although Plaintiff has not plead specific damages
relating to the impounding, the Court finds the allegations that Plaintiff’s
vehicles have been seized and possessed pursuant to this allegedly
unconstitutional ordinance and that the City will continue depriving Plaintiff
of his vehicles, constitutes a sufficient ongoing controversy.
Thus, Defendant’s demurrer as to the First Cause of
Action is overruled.
Violation
of California Due Process Clause
Plaintiff states that BMC §6-1-1010 violates
California’s due process clause because it is “too vague to provide fair notice
to the public as to what specific conduct constitutes a criminal offense, and
defendant’s enforcement personnel are given undefined, standardless discretion
to determine what constitutes ‘consecutive’ or ‘successive’ acts of parking.”
(FAC ¶ 18.) Plaintiff also states that his vehicles have been impounded for
violations of this Ordinance. (FAC ¶ 8.) Plaintiff asks for declaratory and injunctive
relief as to this cause of action.
As stated above, Plaintiff has put forth facts showing
that a present controversy between the parties exists. Plaintiff has alleged
that the statute is unconstitutionally vague and that the enforcement personnel
are given undefined, standardless discretion, and that city officials have told
him that his vehicle specifically has been targeted due to its appearance. (FAC
¶ 27.) This is sufficient to state a due process violation.
Defendants demur as to this cause of action stating
that “tort causes of action against public entities are based on statute… yet [Plaintiff]
fail[s] to provide any statutory legal authority which would allow Plaintiff to
sue the municipality.” However, Defendant is not asserting a tort cause of
action, but a constitutional violation. The Demurrer does not show that the
pleading is defective on its face.
Thus, the Demurrer as to the Second Cause of Action is
overruled.
Violation
of California State Privileges or Immunities
Plaintiff states that BMC §6-1-1010 violates the State
Privileges or Immunities Clause because “plaintiff is deprived of the lawful
use of duly registered vehicles, and of the privilege to park those vehicles in
legally recognized, otherwise permissible and unrestricted parking zones
available to other vehicles, and is so deprived specifically because the
vehicles owned and used by plaintiff are associated with a class of
constitutionally protected activity, i.e., speech.” (FAC ¶ 24.) Plaintiff again
requests declaratory and injunctive relief.
As stated above, Plaintiff puts forth facts showing
that a present controversy between the parties exists. Defendant again demurs
to this cause of action stating, because “tort causes of action against public
entities are based on statute… yet they fail to provide any statutory legal
authority which would allow Plaintiff to sue the municipality.” However,
Defendant is not asserting a tort cause of action here either, but a
constitutional violation. The Demurrer does not show that the pleading is
defective on its face.
The Demurrer as to the Third Cause of Action is overruled.
Violation
of Plaintiff’s Civil Rights (42 U.S.C. § 1983)
Governmental liability under Section 1983 is confined
to deliberate actions done pursuant to official municipal policies causing
deprivations of federally protected rights of life, liberty or property. (City and County of San Francisco v.
Ballard (2006) 136 Cal.App.4th 381, 406-07.) To state a federal civil
rights cause of action, a plaintiff must plead specific and nonconclusory facts
showing the defendant deprived the plaintiff of rights, privileges, or
immunities secured by the federal Constitution and laws. (Ibid.)
Furthermore, Section 1983 is limited to deprivations of federally protected
rights caused by action taken “pursuant to official municipal policy” and does
not make actionable every injury in which a governmental employee may have
played some role. (Ibid.) “To state a claim for relief in an action
brought under 42 U.S.C. § 1983, plaintiffs must establish that they were
deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.” (Perez
v. City of Roseville (9th Cir. 2019) 926 F.3d 511, 518.)
In the FAC, Plaintiff has alleged that senior City
employees have confirmed to him that he was targeted for extra enforcement
because of active hostility towards Plaintiff’s means of advertising. (FAC ¶
9.) Plaintiff also states that the City “has adopted a policy pursuant to which
it is engaged in discriminatory enforcement by targeting, seizing, and
impounding plaintiff’s vehicles while not acting similarly to enforce its
ordinance against other private vehicle owners parked in a comparable manner in
the City, and that the discriminatory targeting of plaintiff’s vehicles is
driven by animus toward the appearance of the vehicles.” (FAC ¶ 27.) Plaintiff
alleges that this discriminatory targeting violates his freedom of speech. (FAC
¶ 9.)
Defendants demur to this cause of action stating that Plaintiff
has not alleged a City policy, custom, or practice sufficient to support his
fourth cause of action under section § 1983. Defendants state that Plaintiff
only makes conclusory remarks.
However, the Court finds that the allegation that the
City has a policy of targeting vehicles for based on animus towards their
appearance and that senior employees have confirmed that Plaintiff was
specifically targeted constitute sufficient facts alleging a City policy that
violates Plaintiff’s civil rights.
Thus, Defendant’s demurrer to the Fourth Cause of
Action is overruled.
*IF BOTH PARTIES WOULD LIKE TO SUBMIT ON THE COURT’S
TENTATIVE RULING, PLEASE CALL THE COURTROOM AT 8:30 A.M.