James Timphony v. City of Pasadena

MEMORANDUM **

Scarlet and James Timphony appeal from the District Court’s dismissal of three claims arising from the towing of their car in 2014. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm the judgment of the District Court.

1. The District Court correctly determined that Plaintiffs may not bring a private civil suit for damages under California *485 Penal Code § 146. Under California law, a criminal statute authorizes private civil suits only where the legislature intended to create a private right of action or where compelling reasons of public policy justify the recognition of such a right. See Animal Legal Def. Fund v. Mendes, 160 Cal.App.4th 136, 142 , 72 Cal.Rptr.3d 563 (Ct. App. 2008); Vikco Ins. Servs., Inc. v. Ohio Indem. Co., 70 Cal.App.4th 55, 62-63 , 82 Cal.Rptr.2d 442 (Ct. App. 1999). The text and legislative history of § 146 do not suggest that the legislature intended to create a private right of action. The statute simply creates criminal liability for certain forms of official misbehavior. Nor is there a compelling reason of public policy to authorize civil suits under § 146 given the remedies available under 42 U.S.C. § 1983 . The…

dissenting:

Timphony was present when his car was being towed. He told the officer that he had paid the outstanding parking tickets that supposedly authorized the towing, and that the receipts to prove it were in the glove compartment. The officer refused to allow him to retrieve those receipts and refused to look at them before proceeding with the towing. This conduct on the part of the parking enforcement officer was objectively unreasonable. I would, therefore, reverse the District Court’s judgment that the officer is entitled to qualified immunity. At the very least, I would grant the Plaintiffs leave to amend their complaint so that they could allege facts that would make it even clearer that the offi *486 cer’s decision was objectively unreasonable.

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 12 2016

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

JAMES JOSEPH TIMPHONY and No. 15-55144

SCARLET TIMPHONY,

D.C. No. Plaintiffs-Appellants, 2:14-cv-04855-GW-AS

v.

MEMORANDUM*

CITY OF PASADENA, a public entity and

RAFAEL VERDUZCO,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Submitted October 3, 2016** Pasadena, California

Before: REINHARDT, FERNANDEZ, and OWENS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Scarlet and James Timphony appeal from the District Court’s dismissal of

three claims arising from the towing of their car in 2014. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm the judgment of the District Court.

1. The District Court…