FILED

NOT FOR PUBLICATION

FEB 22 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGELICA R. UNTALAN, No. 22-55077

Plaintiff-Appellant, D.C. No. 2:19-cv-07599-ODW-JEM v.

WARREN A. STANLEY; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Argued and Submitted December 7, 2022 Pasadena, California

Before: BEA, IKUTA, and CHRISTEN, Circuit Judges. Partial Dissent by Judge IKUTA.

Plaintiff Angelica Untalan appeals the district court’s order granting

summary judgment for Defendants: California Highway Patrol (CHP) Officer

Paola Trinidad, Lieutenants Jonathan Cochran and Joseph Zagorski, Captain Tariq

Johnson, former Commissioner Joseph Farrow, and then-current Commissioner

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Warren A. Stanley. Untalan sued Defendants for an unlawful seizure under 42

U.S.C. § 1983 and California’s Bane Act after Trinidad ordered a thirty-day

impoundment of Untalan’s vehicle per California Vehicle Code section 14602.6(a)

and other CHP personnel refused to grant Untalan an unconditional release of her

vehicle. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part,

reverse in part, vacate in part, and remand. Because the parties are familiar with

the facts of this case, we do not recite them here.

We review de novo a district court’s order granting summary judgment,

Evans v. Skolnik, 997 F.3d 1060, 1064 (9th Cir. 2021), and we may affirm on any

ground supported by the record, M & T Bank v. SFR Invs. Pool 1, LLC, 963 F.3d

854, 857 (9th Cir. 2020). Summary judgment is proper when the record shows

“there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The evidence of

the non-movant is to be believed, and all justifiable inferences are to be drawn in

[her] favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

1. Untalan argues the district court erred in setting aside her testimony

regarding the events of May 14 as “uncorroborated and self-serving.” We agree.

Untalan testified that on May 14, she sought the release of her vehicle at her local

CHP office, offered to pay the accrued storage fees, and was accompanied by a

2 licensed friend who could drive the vehicle. According to Untalan, the CHP

officer with whom she spoke maintained that the vehicle could not be released

because it was “on hold for 30 days.” To set aside Untalan’s testimony, the district

court relied on Villiarimo v. Aloha Island Air, Inc., which observed in passing that

“this court has refused to find a ‘genuine issue’ where the only evidence presented

is ‘uncorroborated and self-serving’ testimony.” 281 F.3d 1054, 1061 (9th Cir.

2002) (quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)).

The two cases Villiarimo cited for this proposition involved circumstances in

which a plaintiff attempted to raise a genuine dispute of fact based only on her own

uncorroborated testimony when that testimony was contradicted by credible

evidence in the record. See Kennedy, 90 F.3d at 1481 (finding “no genuine dispute

of the fact that [plaintiff] was totally disabled from performing her job” because

her contrary testimony was “uncorroborated and self-serving” and “flatly

contradict[ed] [by] both her prior sworn statements and the medical evidence”);

Johnson v. Wash. Metro. Area Transit Auth., 883 F.2d 125, 128 (D.C. Cir. 1989)

(observing that a court considering a summary judgment motion may “lawfully put

aside testimony . . . when a plaintiff’s claim is supported solely by the plaintiff’s

own self-serving testimony, unsupported by corroborating evidence, and

undermined either by other credible evidence, physical impossibility or other

3 persuasive evidence that the plaintiff has deliberately committed perjury”),

abrogated on other grounds by Robinson v. District of Columbia, 580 A.2d 1255,

1258 (D.C. 1990). Here, because nothing in the record contradicted Untalan’s

account of the May 14 incident, the district court should have credited her

testimony. See Anderson, 477 U.S. at 255.

Nevertheless, to the extent Untalan’s § 1983 claim relies on the May 14

incident, summary judgment was appropriate for a different reason: Untalan failed

to name the unidentified May 14 CHP officer as a defendant. See Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 64–66, 71 (1989). Untalan included “Does 1

through 10” as defendants in her First Amended Complaint, but she was unable to

ascertain the identity of the May 14 officer as the case progressed, and she did not

request that the district court defer consideration of Defendants’ motion for

summary judgment to allow her time to conduct additional discovery. See Fed. R.

Civ. P. 56(d). Untalan suggests Trinidad is also liable for the May 14 incident

considering Trinidad chose to impound the vehicle under section 14602.6(a) of the

California Vehicle Code rather than under section 22651(p) because section

22651(p) would have allowed for an immediate release upon proof of ownership,

payment of fees, and availability of a licensed driver to take possession of the car.

See Cal. Veh. Code § 22651(p). But Trinidad could not have reasonably foreseen

4 that her choice of impoundment statute would result in another CHP officer

refusing to release Untalan’s vehicle even though Untalan had a licensed friend

willing to take possession of it. See Mendez v. County of Los Angeles, 897 F.3d

1067, 1076 (9th Cir. 2018) (“[T]he touchstone of proximate cause in a § 1983

action is foreseeability.” (quoting Phillips v. Hust, 477 F.3d 1070, 1077 (9th Cir.

2007)). We therefore affirm the district court’s order granting summary judgment

as to Untalan’s § 1983 claim arising from the events of May 14.

2. Untalan also argues the district court improperly concluded that Cochran,

Zagorski, and Johnson were entitled to qualified immunity for their conduct at the

May 23 storage hearing. Those three defendants refused to grant Untalan an

unconditional release of her vehicle but instead offered her a conditional release

agreement. The agreement provided that Untalan’s attorney could take possession

of the vehicle if she promised to ensure that Untalan “[would] not have access to

[the] vehicle during the remainder of the 30-day impoundment period” and that

Untalan “[would] not be given, rented, or provided [the] vehicle or any other

vehicle to drive.”

Untalan argues that our decisions in Brewster v. Beck, 859 F.3d 1194 (9th

Cir. 2017), and Sandoval v. County of Sonoma, 912 F.3d 509 (9th Cir. 2018),

5 establish that the conditional release agreement was unconstitutional.1 We agree.

Those cases held that impoundment under California Vehicle Code section

14602.6 constitutes a warrantless seizure and thus “is justified under the Fourth

Amendment only to the extent that the government’s justification [for the seizure]

holds force.” Brewster, 859 F.3d at 1197; see Sandoval, 912 F.3d at 516–17. In

both cases, we concluded that the government’s community-caretaking

justification for impounding a vehicle no longer held force once a licensed driver

was available to take possession of the car. Brewster, 859 F.3d at 1197; Sandoval,

912 F.3d at 516–17. In Sandoval, the government argued that its continued

possession of the seized vehicle was valid because the plaintiff could not legally

drive, but we explained that the seizure still violated the Fourth Amendment

because it interfered with the plaintiff’s other possessory interests. Sandoval, 912

F.3d at 516–17. Here, the broad language of the conditional release agreement

encroached on Untalan’s possessory interests more than was necessary to prevent

unlicensed driving pursuant to the officers’ community-caretaking authority. By

1 Untalan raises an alternate argument for the first time on appeal that Cochran, Zagorski, and Johnson violated her constitutional rights at the May 23 hearing by failing to reduce her fees to the amount she owed by May 14. Untalan did not make this argument before the district court, and the record does not reflect that she actually requested a reduction of the accrued fees to the amount owed on May 14. We therefore do not reach this argument. 6 requiring that Untalan’s counsel ensure she did not “have access to [the car]” for

thirty days, even though a licensed driver was available to take possession, the

conditional release agreement prevented Untalan from exercising her valid

possessory interests unrelated to driving—for example, she would be barred from

accessing the car to store her possessions in it or to perform maintenance on it.

In light of Brewster and Sandoval, no reasonable officer could have

concluded that requiring that Untalan be denied all access to her car for 30 days

was a permissible exercise of the police’s community-caretaking function. We

therefore reverse the district court’s decision to grant summary judgment for

Cochran, Zagorski, and Johnson on Untalan’s § 1983 claim on the basis of

qualified immunity.

3. We vacate the district court’s order granting summary judgment for

Cochran, Zagorski, and Stanley on Untalan’s Bane Act claim. To support a Bane

Act claim for a Fourth Amendment violation, Untalan needed to prove those

defendants acted with the “specific intent to violate [her] right to freedom from

unreasonable seizure.” Sandoval, 912 F.3d at 519–20 (quoting Reese v. County of

Sacramento, 888 F.3d 1030, 1043, 1044 n.5 (9th Cir. 2018)). “The specific intent

inquiry for a Bane Act claim is focused on two questions: First, ‘[i]s the right at

issue clearly delineated and plainly applicable under the circumstances of the case,’

7 and second, ‘[d]id the defendant commit the act in question with the particular

purpose of depriving the citizen victim of his enjoyment of the interests protected

by that right?’” Id. at 520 (quoting Cornell v. City & County of San Francisco,

225 Cal. Rptr. 3d 356, 386 (Ct. App. 2017)). The district court concluded that

Cochran, Zagorski, and Stanley lacked the specific intent required for a Bane Act

violation based on prong one of this inquiry because their actions “did not violate

any clearly established constitutional right.” Because we conclude the

unlawfulness of the conditional release was clearly established, we remand for the

district court to consider prong two of the specific intent inquiry.

AFFIRMED in part, REVERSED in part, VACATED in part, and

REMANDED. Costs are awarded to Untalan.

8

FILED

Untalan v. Stanley, No. 22-55077

FEB 22 2023

IKUTA, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Pointing to cases holding only that the government must release an

impounded vehicle “once a licensed driver was available to take possession of the

car,” Maj. at 6, the majority opines that “no reasonable officer could have

concluded” that it was permissible to take this exact step—releasing an impounded

vehicle to a licensed driver—because the release was on condition that the

unlicensed owner not drive it. Maj. at 7. This conclusion conflicts with the

Supreme Court’s direction to “the Ninth Circuit in particular” that we should not

“define clearly established law at a high level of generality.” Kisela v. Hughes,

138 S. Ct. 1148, 1152 (2018) (per curiam) (cleaned up). Rather, “[s]pecificity is

especially important in the Fourth Amendment context,” because “the Court has

recognized that it is sometimes difficult for an officer to determine how the

relevant legal doctrine” applies to the specific “factual situation the officer

confronts.” Id. (cleaned up). Because the majority’s qualified immunity analysis

ignores the specific factual situation in this case, I dissent.

Qualified immunity shields police officers from liability “so long as their

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Mullenix v. Luna, 577 U.S. 7, 11

1 (2015) (per curiam) (citations and internal quotations omitted). “To be clearly

established, a right must be sufficiently clear that every reasonable official would

have understood that what he is doing violates that right.” Reichle v. Howards,

566 U.S. 658, 664 (2012) (cleaned up). To meet this standard, “existing precedent

must have placed the statutory or constitutional question beyond debate.” Ashcroft

v. al–Kidd, 563 U.S. 731, 741 (2011).

In this case, Untalan and her attorney appeared for a vehicle storage hearing

conducted by Lieutenants Cochran and Zagorski on May 23, 2019. The officers

agreed to release the vehicle to Untalan’s attorney, a licensed driver, if she signed a

conditional release agreement. The agreement stated that the attorney would

ensure that Untalan would “not have access to [the car] during the remainder of the

30-day impoundment period,” and would “not be given, rented, or provided [the

car] or any other vehicle to drive, until [she] is properly licensed.”

The majority holds that the officers violated the clearly established rule that

a conditional release of a vehicle is unconstitutional because it “encroache[s] on

[the car owner’s] possessory interests more than [is] necessary to prevent

unlicensed driving pursuant to the community caretaking exception.” Maj. at 6.

But existing precedent has certainly not put this rule “beyond debate.” Ashcroft,

563 U.S. at 741. There is no case clearly establishing that police officers violate

2 constitutional rights if they release an unlicensed driver’s vehicle subject to the

condition that the driver not be allowed to drive the car. In Brewster v. Beck (on

which the majority relies), we held only that officers could not continue to

impound a vehicle under the community caretaking exception to the Fourth

Amendment once the owner “showed up with proof of ownership and a valid

driver’s license.” 859 F.3d 1194, 1196 (9th Cir. 2017) (emphasis added). This

conclusion is inapplicable here, because Untalan did not show up with a valid

driver’s license at the time of the storage hearing. Therefore, a reasonable police

officer could believe that the state still had a legitimate “interest in keeping

unlicensed drivers off the road.” Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 516

(2018).

The majority’s reliance on Sandoval is even more misplaced. In that case,

we held that the state had no justification to continue to impound a vehicle once the

owner showed up with “a licensed driver who could take possession of the truck.”

Id. The officers here fully complied with this requirement by agreeing to release

the vehicle to Untalan’s attorney. Sandoval did not address the question whether a

conditional release of a vehicle to an unlicensed plaintiff can be justified by the

community caretaking function, see id., so this opinion can scarcely be said to

“‘squarely govern[]’ the specific facts at issue” here, Kisela, 138 S. Ct. at 1153

3 (citation omitted).

Because Brewster and Sandoval are not on point, the majority erroneously

states that, “[i]n light of” these cases, “no reasonable officer could have concluded

that requiring that Untalan be denied all access to her car for 30 days was a

permissible exercise of the police’s community-caretaking function.” Maj. at 7.

Neither Brewster nor Sandoval went that far. Rather, they explained that a police

officer is required to release a vehicle from impoundment when a licensed driver

shows up, and Officers Cochran and Zagorski complied with this requirement by

agreeing to release the vehicle at issue to the licensed driver. The release

agreement’s requirement that the attorney not give Untalan access to the car or

give her the car to drive “until she was properly licensed,” read in context, makes it

clear that the agreement was intended to prevent unlicensed drivers from accessing

their cars for the purposes of driving them, not to “prevent[] Untalan from

exercising her valid possessory interests unrelated to driving,” like “accessing the

car to store her possessions in it or to perform maintenance on it.” Maj. at 7.

It is clear that neither Brewster nor Sandoval provides the

“require[d] . . . high ‘degree of specificity’” that would let reasonable officers

know that they had no right to condition release of a vehicle on keeping it away

from an unlicensed driver. District of Columbia v. Wesby, 138 S. Ct. 577, 590

4 (2018) (citation omitted). Although the majority thinks these cases (when read

together) provide a general rule that should have guided the officers’ actions, Maj.

at 7, the Supreme Court has told us that the “dispositive question is ‘whether the

violative nature of particular conduct is clearly established’” based on “the

specific context of the case.” Mullenix, 577 U.S. at 12 (citation omitted).

Because the majority’s “clearly established” rule is neither clear nor

established, the officers here are entitled to qualified immunity for their conduct at

the May 23 storage hearing. In holding otherwise, the majority ignores the

Supreme Court’s direction in applying qualified immunity jurisprudence.

Therefore, I dissent.

5