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8 United States District Court 9 Central District of California

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11 ANGELICA R. UNTALAN, Case № 2:19-cv-07599-ODW (JEMx)

12 Plaintiff, ORDER GRANTING IN PART AND

13 v. DENYING IN PART DEFENDANTS’

AND PLAINTIFF’S MOTIONS FOR

14 WARREN A. STANLEY, et al., PARTIAL SUMMARY JUDGMENT

15 Defendants. [94] [97]

16 17 I. INTRODUCTION 18 Before the Court are the parties’ Motions for Partial Summary Judgment on 19 Plaintiff Angelica Untalan’s claims arising under 42 U.S.C. § 1983 and California 20 Civil Code section 52.1. (Defs. Mot. Partial Summ. J. (“DMot.”), ECF No. 94; Pl. 21 Mot. Partial Summ. J. (“PMot.”), ECF No. 97.) For the reasons below, the Court 22 GRANTS in part and DENIES in part both Motions.1 23 II. BACKGROUND 24 On May 12, 2019, Angelica Untalan was driving her Pontiac Grand Am (the 25 “Vehicle”) in Los Angeles County when she was stopped by Officer Paola Trinidad of 26 the California Highway Patrol (“CHP”). (Defs. Statement of Genuine Issues ISO 27

28 1 Having carefully considered the papers filed in connection with the Motions, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 Defs. Opp’n (“DSGI”) 1–2, ECF No. 99-2.)2 Trinidad determined Untalan had a 2 suspended license and consequently impounded the Vehicle pursuant to California 3 Vehicle Code section 14602.6 (“Section 14602.6”). (DSGI 3–4.) This resulted in a 4 thirty-day impound that required CHP authorization for release. It could have been 5 impounded under a different code section that did not provide a 30-day impound or 6 require CHP authorization for release. (Pl. Statement of Uncontroverted Facts ISO 7 PMot. (“PSUF”) 5–6, 14, ECF No. 97-1; DSGI 5–6, 14.) Trinidad ordered Untalan 8 out of her vehicle and patted her down, despite having no reason to believe she posed 9 a threat. (DSGI 7–11.) 10 When Untalan contacted the tow company to retrieve the Vehicle she was 11 informed she needed CHP authorization. (DSGI 13–14.) On May 14, 2019, Untalan 12 went to the CHP office with a friend who was licensed and could drive her car, but 13 was informed her Vehicle would not be released due to the thirty-day hold. 14 (PSUF 15–17.)3 15 On May 17, 2019, Untalan’s counsel spoke with CHP Sergeant Justin Vaughan 16 on the telephone. (DSGI 17; Pl. Statement of Genuine Issues ISO Pl. Opp’n 17 (“PSGI”) 16, ECF No. 101.) Untalan’s counsel informed Vaughan that refusal to 18 release the Vehicle was wrongful under Ninth Circuit precedent, Brewster v. Beck, 19 859 F.3d 1194 (9th Cir. 2017). (DSGI 18.) Vaughan acknowledged the Brewster 20 decision but stated it did not apply; he advised that Untalan could request a storage 21 hearing for release of the Vehicle. (DSGI 19–20.) 22 2 Both parties submit objections to evidence and/or improper argument in their statements of fact. 23 The Court OVERRULES all boilerplate objections and improper argument. (See Scheduling and Case Mgmt. Order 7–9, ECF No. 33.) Further, where the objected evidence is unnecessary to the 24 resolution of the Motions or supports facts not in dispute, the Court need not resolve those objections 25 here. To the extent the Court relies on objected-to evidence in this Order, those objections are OVERRULED. See Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1122 (E.D. Cal. 26 2006) (proceeding with only necessary rulings on evidentiary objections). 3 Defendants purport to dispute the facts underlying the May 14 event but offer no evidence in 27 support, instead relying solely on objections to Untalan’s evidence. (See DSGI 15–16.) As noted 28 above, Defendants’ objections are overruled. Therefore, the Court considers these facts undisputed. See C.D. Cal. L.R. 56-3. 1 On May 23, 2019, CHP Lieutenant Jonathan Cochran conducted Untalan’s 2 storage hearing; CHP Lieutenant Joseph Zagorski was also present. (DSGI 21, 26, 28 3 PSGI 18.) Cochran authorized a conditional release of the Vehicle to Untalan’s 4 counsel, who was not to allow Untalan access to the Vehicle for the remainder of the 5 thirty-day period unless she obtained a valid license. (DSGI 26.) Untalan’s counsel 6 informed Zagorski that Ninth Circuit authority required the CHP to release the 7 Vehicle, but he refused to order an unconditional release. (DSGI 31–32.) CHP 8 Captain Tariq Johnson approved the May 23, 2019 Storage Hearing Report form after 9 reviewing the underlying documents, including the citation, the form documenting 10 seizure, a memorandum correcting that form, and Untalan’s driving history. 11 (DSGI 35–36.) 12 By the time of the conditional release on May 23, Untalan could not afford to 13 pay the accrued towing and storage fees. (PSUF 27.) On June 19, 2019, Untalan’s 14 counsel sent a letter to Johnson stating that Untalan had previously offered to pay any 15 fees and have a licensed driver pick up her car, and that, under Brewster, the Vehicle 16 should have been released on May 14, 2019. (DSGI 37.) Johnson forwarded that 17 letter to CHP’s legal department. (DSGI 38.) On July 1, 2019, the Vehicle was sold 18 at a lien sale and Untalan lost all possession of it. (DSGI 43.) 19 Untalan asserts three claims against Defendants Warren A. Stanley, Joseph 20 Farrow, Johnson, Cochran, Zagorski, Vaughan, and Trinidad (“Defendants”) in their 21 individual capacities: (1) unlawful search of person under 42 U.S.C. § 1983 and 22 California Civil Code section 52.1(c), against Trinidad only; (2) unlawful vehicle 23 impound under 42 U.S.C. § 1983, against all Defendants; and (3) violation of the 24 Bane Act, California Civil Code section 52.1, against Stanley, Cochran, Zagorski, and 25 Vaughan. (First Am. Compl. (“FAC”) ¶¶ 33–43, ECF No. 84.) 26 Untalan and Defendants all move for partial summary judgment. Untalan seeks 27 partial summary judgment as to her first and second claims. (See generally PMot.) 28 Defendants seek partial summary judgment as to Untalan’s second and third claims. 1 (See generally DMot.) The motions are fully briefed. (Defs. Opp’n to PMot., ECF 2 No. 99; Pl. Reply, ECF No. 105; Pl. Opp’n to DMot., ECF No. 100; Defs. Reply, ECF 3 No. 103.4) 4 III. LEGAL STANDARD 5 A court “shall grant summary judgment if the movant shows that there is no 6 genuine dispute as to any material fact and the movant is entitled to judgment as a 7 matter of law.” Fed. R. Civ. P. 56(a). The burden of establishing the absence of a 8 genuine issue of material fact lies with the moving party, see Celotex Corp. v. Catrett, 9 477 U.S. 317, 322–23 (1986), and the court must view the facts and draw reasonable 10 inferences in the light most favorable to the nonmoving party, Scott v. Harris, 11 550 U.S. 372, 378 (2007). A disputed fact is “material” where the resolution of that 12 fact might affect the outcome of the suit under the governing law, and the dispute is 13 “genuine” where “the evidence is such that a reasonable jury could return a verdict for 14 the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 15 Conclusory or speculative testimony in affidavits is insufficient to raise genuine issues 16 of fact and defeat summary judgment. Thornhill Publ’g Co. v. GTE Corp., 17 594 F.2d 730, 738 (9th Cir. 1979). Moreover, though the Court may not weigh 18 conflicting evidence or make credibility determinations, there must be more than a 19 mere scintilla of contradictory evidence to survive summary judgment. Addisu v. 20 Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 21 Once the moving party satisfies its burden, the nonmoving party cannot simply 22 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 23 material issue of fact precludes summary judgment. Matsushita Elec. Indus. Co., Ltd. 24 v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see Celotex, 477 U.S. at 322–23. 25 Nor will uncorroborated allegations and “self-serving testimony” create a genuine 26

4 As Defendants’ Reply exceeds the permitted page length, the Court does not consider it beyond 27 page twelve. See Standing Order of Hon. Otis D. Wright II, VII.A.3, https://www.cacd.uscourts. 28 gov/honorable-otis-d-wright-ii (“Replies shall not exceed 12 pages . . . Filings that do not conform to the Local Rules and this Order will not be considered.”). 1 issue of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 2 (9th Cir. 2002). The court should grant summary judgment against a party who fails 3 to demonstrate facts sufficient to establish an element essential to the case when that 4 party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322. 5 Pursuant to the Local Rules, parties moving for summary judgment must file a 6 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that should 7 set out “the material facts as to which the moving party contends there is no genuine 8 dispute.” C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of 9 Genuine Disputes” setting forth all material facts as to which it contends there exists a 10 genuine dispute. C.D. Cal. L.R. 56-2. “[T]he Court may assume that material facts as 11 claimed and adequately supported by the moving party are admitted to exist without 12 controversy except to the extent that such material facts are (a) included in the 13 ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written 14 evidence filed in opposition to the motion.” C.D. Cal. L.R. 56-3. 15 IV. DISCUSSION 16 The Court first considers Untalan’s motion and then turns to Defendants’. 17 A. Untalan’s Motion for Partial Summary Judgment 18 Untalan seeks summary judgment regarding her first two claims, unlawful 19 search of person against Trinidad and unlawful vehicle impound against Defendants. 20 Defendants do not oppose Untalan’s motion with respect to the first claim for 21 unlawful search of person. (Defs. Opp’n 2 n.1.) The Court has reviewed the evidence 22 and finds Untalan has adequately supported partial summary judgment as to this 23 claim. Trinidad cannot claim the search was for her personal protection while Untalan 24 was being transported because Trinidad did not transport her, but left her on the street. 25 The Court thus focuses on her second claim, that Defendants’ impound of the Vehicle 26 violated the Fourth Amendment. The Court first addresses the impoundment’s 27 constitutionality and then assesses each Defendant’s liability. 28 1 1. Fourth Amendment Violation 2 The Fourth Amendment protects against unreasonable searches and seizures. 3 U.S. Const. amend. IV. The Ninth Circuit has held that “[thirty]-day impounds under 4 [S]ection 14602.6 are seizures for Fourth Amendment purposes.” Sandoval v. Cnty. of 5 Sonoma, 912 F.3d 509, 515 (9th Cir. 2018), cert. denied, 140 S. Ct. 142 (2019); see 6 also Brewster, 859 F.3d at 1196 (“A seizure is ‘a meaningful interference with an 7 individual’s possessory interests in [her] property.’” (quoting Soldal v. Cook Cnty., 8 506 U.S. 56, 61 (1992))). “A seizure is justified under the Fourth Amendment only to 9 the extent that the government’s justification holds force. Thereafter, the government 10 must cease the seizure or secure a new justification.” Brewster, 859 F.3d at 1197. 11 While an initial seizure may be justified under Section 14602.6 pursuant to the 12 community caretaking exception, “[t]he exigency that justifie[s] the seizure vanishe[s] 13 once the vehicle arrive[s] in impound and [the owner] show[s] up with proof of 14 ownership and a valid driver’s license.” Id. at 1196; see also Sandoval, 912 F.3d 15 at 516 (“Once [the owner] was able to provide a licensed driver who could take 16 possession of the truck, the [government’s] community caretaking function was 17 discharged.”). 18 There is no dispute that Untalan’s vehicle was seized pursuant to 19 Section 14602.6, implicating the Fourth Amendment’s protections. Untalan presents 20 evidence that she went to the CHP office on May 14, 2019, to pay the accrued storage 21 fees and retrieve the Vehicle. (PSUF 15.) A friend who was licensed and could 22 legally drive her car accompanied her. (PSUF 15.) Despite this, CHP personnel did 23 not release the Vehicle. (See PSUF 16.) These facts plainly show Untalan’s Fourth 24 Amendment rights were violated as a matter of law under Brewster and Sandoval. 25 Defendants purport to dispute these facts but fail to provide counter evidence or 26 raise a genuine issue for trial. Instead, they merely object to the admissibility of 27 Untalan’s evidence on the grounds of relevancy, hearsay, and lack of foundation. (See 28 DGSI 15–16; Defs. Objs. ¶¶ 1, 2, 4, 9, 10, 12, ECF No. 99-1.) First, “relevance 1 objections are redundant” at the summary judgment stage, Burch, 433 F. Supp. 2d 2 at 1119, and Defendants’ hearsay and lack of foundation objections lack merit. 3 Further, “[a]t the summary judgment stage, we do not focus on the admissibility of the 4 evidence’s form. We instead focus on the admissibility of its contents.” Fraser v. 5 Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Untalan submits declaration and 6 deposition testimony that she went to the CHP office on May 14, 2019, accompanied 7 by Douglas Foster who showed the CHP officer his license and insurance, but the 8 officer refused to release the Vehicle. These facts are properly admissible before the 9 Court—they reflect Untalan’s personal knowledge and are not the hearsay statements 10 of others. See Gannon Int’l v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (finding 11 hearsay objection properly overruled where it did “not even attempt to argue that the 12 information contained in [the] statement could not have been presented in an 13 admissible form at trial”). As such, Untalan has shown as a matter of law that she 14 suffered a Fourth Amendment violation when the CHP refused to release the 15 impounded Vehicle to her when the initial exigency had vanished. 16 2. Liability of Defendants5 17 Turning to Defendants’ individual liability, § 1983 states that “[e]very person 18 who, under color of [law] . . . subjects, or causes to be subjected, any . . . person . . . to 19 the deprivation of any rights . . . secured by the Constitution and laws, shall be liable 20 to the party injured.” 42 U.S.C. § 1983. “[F]or a person acting under color of state 21 law to be liable under section 1983 there must be a showing of personal participation 22 in the alleged rights deprivation.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 23 2002). “Section [1983] should be read against the background of tort liability that 24 makes a man responsible for the natural consequences of his actions.” Monroe v. 25

26 5 To the extent Defendants contend they are entitled to qualified immunity in their opposition to Untalan’s motion or in their affirmative motion for partial summary judgment, the Court previously 27 considered Defendants’ argument on this issue and held they are not so entitled. (See generally 28 Defs. MJOP, ECF No. 45; MJOP Order, ECF No. 75.) The Court sees no substantive differences in Defendants’ argument here and is not inclined to revisit the issue. 1 Pape, 365 U.S. 167, 187 (1961), overruled on other grounds by Monell v. Dep’t of 2 Soc. Servs., 436 U.S. 658 (1978). 3 “Generally, proximate cause is a question of fact.” Leaf v. United States, 4 588 F.2d 733, 736 (9th Cir. 1978), abrogated on other grounds by Sosa v. Alvarez- 5 Machain, 542 U.S. 692 (2004). “Proximate cause is said to depend on whether the 6 conduct has been so significant and important a cause that the defendant should be 7 legally responsible.” Mendez v. Cnty. of Los Angeles, 897 F.3d 1067, 1076 (9th Cir. 8 2018) (internal quotation marks omitted). “[T]he touchstone of proximate cause in a 9 § 1983 action is foreseeability.” Id. 10 There is no dispute that the officers were acting under color of state law and, as 11 discussed above, no question that the series of events here is the cause in fact of the 12 constitutional violation—the prolonged impound. Thus, the question is whether 13 Defendants were each the proximate cause of that violation such that holding them 14 liable is appropriate. Although Untalan brings her second cause of action against all 15 Defendants, (FAC ¶¶ 38–39), she argues in her motion for the liability of only 16 Trinidad, Vaughan, Cochran, Zagorski, and Johnson, (See PMot. 11–16). The Court 17 addresses each Defendant’s liability in turn. 18 a. Trinidad 19 Untalan contends Trinidad’s decision to impound the Vehicle confers liability. 20 (PMot. 14.) However, Trinidad’s initial seizure was lawful and not the root of the 21 constitutional violation. Rather, the violation arose with the continued seizure of the 22 Vehicle, after Untalan was prevented from retrieving it with a licensed driver on 23 May 14, 2019. See Sandoval, 912 F.3d at 516–17 (holding that once the exigency is 24 extinguished, continued impoundment is unconstitutional). The evidence 25 demonstrates that Trinidad had no involvement in the continued impoundment. 26 Further, Untalan’s argument that Trinidad should have foreseen the subsequent 27 violation when she impounded pursuant to Section 14602.6, which provided a 28 thirty-day impound, rather than a different code section that did not, is not supported. 1 See id. at 519 (“[A] 30-day impound does not necessarily violate the Fourth 2 Amendment. Instead, such a prolonged seizure is only unconstitutional when it 3 continues in the absence of a warrant or any exception to the warrant requirement.”). 4 Drawing all reasonable inferences in the light most favorable to Trinidad as the 5 nonmoving party, a reasonable juror could find Trinidad would not have foreseen the 6 subsequent constitutional violation. Therefore, Untalan is not entitled to summary 7 judgment against Trinidad for the second cause of action, unlawful impound. 8 b. Vaughan 9 Turning to Vaughan, Untalan contends he is liable for the Fourth Amendment 10 violation because he refused to release the Vehicle despite knowing of the Brewster 11 decision. (PMot. 15.) The undisputed facts show that Untalan’s counsel spoke with 12 Vaughan on the phone on May 17, 2019, and asserted that, per Brewster, the refusal to 13 release the Vehicle on May 14, 2019, was wrongful. (DSGI 17–19.) However, 14 Untalan has not shown that Vaughan refused to release the Vehicle during that 15 conversation or even that Vaughan could have done so.6 The undisputed evidence 16 shows only that a release did not occur following the phone call. Drawing all 17 reasonable inferences in a light favorable to Vaughan, a reasonable juror could 18 conclude he was not involved in prolonging the impoundment. As such, Untalan is 19 not entitled to summary judgment against Vaughan on this claim. 20 c. Cochran and Zagorski 21 Untalan groups Lieutenants Cochran and Zagorski together, arguing their 22 involvement in the post storage hearing creates liability. (PMot. 15.) It is undisputed 23 that Cochran conducted the hearing and authorized a conditional release of the Vehicle 24 to Untalan’s attorney. (DSGI 21, 26.) It is also undisputed that Zagorski participated 25 in the hearing and he, too, failed to authorize an unconditional release from impound. 26

6 Untalan points to Vaughan’s deposition to support that Vaughan “would not authorize release” of 27 the Vehicle unless Untalan “obtained a valid driver’s license.” (See PSUF 20.) Neither the cited 28 deposition testimony nor its surrounding context supports Untalan’s proposed fact. (See Decl. of Donald W. Cook (“Cook Decl.”) Ex. F (“Vaughan Dep.”) 93–95, ECF No. 97-2; DSGI 20.) 1 (DSGI 28, 32.) Thus, Cochran and Zagorski knew the exigency had abated and 2 possessed the authority to release the Vehicle. However, Cochran released the Vehicle 3 to Untalan’s attorney, as Untalan’s licensed agent, only on the condition that she 4 “ensure that [Untalan] will not have access to said vehicle during the remainder of the 5 [thirty]-day impoundment period.” (Cook Decl. Ex. N (“Release Agreement”), ECF 6 No. 97-2 (emphasis added).) The imposition of this condition on release, following 7 the end of any exigency justifying seizure, is itself an unlawful continued seizure. See 8 Sandoval, 912 F.3d at 516–17 (finding continued seizure unreasonable once the owner 9 provided a licensed driver who could take possession of the vehicle). 10 Viewing all reasonable inferences in Cochran’s and Zagorski’s favor, they both 11 knew the seizure was no longer justified and had the authority to release the Vehicle, 12 yet conditioned the release on denying Untalan access to the Vehicle for the remainder 13 of the thirty-day impoundment period. On these undisputed facts, any reasonable 14 juror would find Cochran and Zagorski prolonged the seizure without justification. 15 Untalan is therefore entitled to summary judgment against them on her second cause 16 of action. 17 d. Johnson 18 Untalan next argues for summary judgment against Johnson. (PMot. 15–16.) 19 The undisputed facts show that Johnson approved the Storage Hearing Report and 20 reviewed all underlying documents. (DSGI 35–36.) As such, like Cochran and 21 Zagorski, Johnson knew the exigency had abated but nevertheless approved only a 22 conditional release. Thus, Untalan is entitled to summary judgment against Johnson 23 on this claim as well. 24 3. Summary—Untalan’s Motion 25 Based on the foregoing, the Court finds Untalan is entitled to summary 26 judgment on her first claim for unlawful search of a person against Trinidad. She is 27 also entitled to summary judgment on her second claim for unlawful impound against 28 Cochran, Zagorski, and Johnson, but not against Trinidad or Vaughan. Untalan has 1 established as a matter of law that she suffered a constitutional violation due to an 2 unlawful impound, but genuine issues of material fact remain regarding Trinidad’s and 3 Vaughan’s liability for that violation. The Court therefore GRANTS in part and 4 DENIES in part Untalan’s Motion for Partial Summary Judgment. 5 B. Defendants’ Motion for Partial Summary Judgment 6 The Court next turns to Defendants’ Motion seeking partial summary judgment 7 on Untalan’s second claim for unlawful impound under § 1983, and third claim for 8 violation of the Bane Act, California Civil Code section 52.1. (DMot. 6–9, 16–17.) 9 Defendants also argue they are entitled to various state law immunities with respect to 10 Untalan’s Bane Act claim. (Id. at 17–20.) The Court addresses each issue in turn. 11 1. Unlawful Impound 12 Defendants first contend they are entitled to summary judgment on Untalan’s 13 second claim for unlawful impound because no Defendant violated Untalan’s Fourth 14 Amendment rights. (DMot. 6–9.) The Court discussed above that Untalan is entitled 15 to summary judgment as to the unlawful impound against Cochran, Zagorski, and 16 Johnson. Accordingly, Defendants’ Motion is denied on this claim as to them and the 17 Court considers Defendants’ arguments as to the remaining Defendants—Trinidad, 18 Vaughan, Former CHP Commissioner Farrow, and CHP Commissioner Stanley. 19 The legal requirements for liability on this claim are stated above and continue 20 to apply here. However, as the Court now considers Defendants’ Motion, the burdens 21 and inferences are reversed. See Celotex, 477 U.S. at 322–23 (burden on moving 22 party); Scott, 550 U.S. at 378 (reasonable inferences for nonmoving party). Thus, the 23 Court now examines whether Defendants have shown there is no genuine dispute of 24 material fact and they are entitled to judgment as a matter of law, taking all facts and 25 reasonable inferences in Untalan’s favor. 26 a. Trinidad 27 As discussed above, the evidence demonstrates that Trinidad’s initial seizure of 28 the Vehicle was lawful and that Trinidad had no subsequent involvement in the 1 impound. Untalan argues Trinidad’s decision to impound the Vehicle under 2 Section 14602.6 necessarily means she should have foreseen the unjustified prolonged 3 impoundment by other officers down the line. Not so. Such a finding would subject 4 every officer who lawfully impounds a vehicle pursuant to Section 14602.6 to liability 5 for the subsequent actions of others handling the impoundment; this is simply not the 6 law. See Jones, 297 F.3d at 934 (“[T]here must be a showing of personal participation 7 in the alleged rights deprivation.”); see also Sandoval, 912 F.3d at 519 (“[A] 30-day 8 impound does not necessarily violate the Fourth Amendment.”). Untalan has not 9 shown or raised a genuine issue that Trinidad was involved in the subsequent 10 prolonged impoundment. Viewing all reasonable inferences in Untalan’s favor, no 11 reasonable juror could conclude Trinidad prolonged the impoundment. See Leaf, 12 588 F.2d at 736 (discussing that proximate cause may be a question of law if “the 13 proof is insufficient to raise a reasonable inference that the act complained of was the 14 proximate cause of the injury”). Therefore, Trinidad is entitled to summary judgment 15 on Untalan’s second cause of action for unlawful impound. 16 b. Vaughan 17 Also discussed above, the evidence shows that Untalan’s counsel spoke with 18 Vaughan on the phone on May 17, 2019, and informed him that the prolonged 19 impound was unlawful. However, Untalan has offered nothing to suggest that 20 Vaughan could have released the Vehicle or provided any other relief based on his sole 21 interaction—the phone call. Taking all facts and reasonable inferences in Untalan’s 22 favor, based on the evidence and undisputed facts before the Court, no reasonable 23 juror could conclude that Vaughan refused to release the Vehicle or prolonged the 24 impound. See Leaf, 588 F.2d at 736. As such, Vaughan is also entitled to summary 25 judgment on Untalan’s second cause of action. 26 c. Farrow and Stanley 27 Defendants contend Farrow and Stanley (the “Commissioners”) are entitled to 28 summary judgment because they were not personally involved with the constitutional 1 violation, and no supervisory liability attaches to their conduct because they had no 2 involvement in any decisions to not change the impound policy. (DMot. 9.) 3 Supervisory liability can arise from “action or inaction in the training, 4 supervision, or control of . . . subordinates, . . . acquiescence in the constitutional 5 deprivations of which the complaint is made, or conduct that showed a reckless or 6 callous indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202, 1205–06 7 (9th Cir. 2011) (internal quotation marks omitted). Defendants do not dispute that the 8 Commissioners and their staff are responsible for developing, reviewing, and 9 approving CHP policy. (See Decl. of Chris Lane ¶ 2, Ex. 1 (Highway Patrol 10 Manual 1.1) ¶1.5(a), ECF No. 94-4; see also Suppl. Decl. of Donald W. Cook (“Suppl. 11 Cook Decl.”) Ex. EE (“Decl. of Dale E. Bonner”) ¶ 6, ECF No. 100-1.) Although 12 Defendants argue the Commissioners were not involved in formulating the policy or 13 the decision not to revise it, that itself supports Untalan’s argument that the 14 Commissioners may have been deliberately indifferent to constitutional violations of 15 the type occurring here. 16 Untalan submits evidence of CHP management emails advising all CHP field 17 offices of the Brewster decision, seeking advice regarding the legal impact of that 18 decision, and providing legal advice from attorneys in the form of a client advisory. 19 (See Suppl. Cook Decl. ¶¶ 5–6, Exs. HH, II.) Defendants argue Stanley would not 20 have seen some of these and that the determination to not revise the policy was not 21 elevated to the commissioner level, (DMot. 9–10), but viewing inferences in Untalan’s 22 favor, a reasonable juror could conclude from this evidence that Farrow and Stanley 23 were aware of the Brewster decision and its legal import to CHP impound policy and 24 failed to act. Therefore, Farrow and Stanley are not entitled to summary judgment on 25 Untalan’s second cause of action for unlawful impound. 26 2. The Bane Act 27 Defendants next contend they are entitled to summary judgment as to Untalan’s 28 third claim, violation of the Bane Act, because Defendants did not violate Untalan’s 1 constitutional rights and Untalan cannot prove Defendants’ specific intent to do so. 2 (DMot. 16–17.) Untalan brings this claim against Vaughan, Cochran, Zagorski, and 3 Stanley. (FAC ¶¶ 40–43.) The Court has already determined Vaughan is entitled to 4 summary judgment on the issue of whether he violated Untalan’s rights and the 5 remaining Defendants are not. Therefore, the Court focuses on whether Untalan can 6 prove Cochran’s, Zagorski’s, and Stanley’s specific intent. 7 The Bane Act addresses hate crimes, “civilly protect[ing] individuals from 8 conduct aimed at interfering with rights . . . where the interference is carried out ‘by 9 threats, intimidation or coercion.’” Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1040 10 (9th Cir. 2018) (quoting Venegas v. Cnty. of Los Angeles, 153 Cal. App. 4th 1230, 11 1233 (2007)). “The specific intent inquiry for a Bane Act claim is focused on two 12 questions.” Sandoval, 912 F.3d at 520 (quoting Cornell v. City & Cnty. of San 13 Francisco, 17 Cal. App. 5th 766, 803 (2017)). “First, ‘[i]s the right at issue clearly 14 delineated and plainly applicable under the circumstances of the case,’ and second, 15 ‘[d]id the defendant commit the act in question with the particular purpose of 16 depriving the citizen victim of his enjoyment of the interests protected by that right?’” 17 Id. “So long as those two requirements are met, specific intent can be shown ‘even if 18 the defendant did not in fact recognize the unlawfulness of his act’ but instead acted in 19 ‘reckless disregard’ of the constitutional right.” Id. 20 Untalan’s right to reclaim the Vehicle has been clearly established since the 21 decisions of Brewster and Sandoval. See id. (“[I]t was legally unclear whether the 22 30-day impounds were ‘seizures’ at all within the meaning of the Fourth Amendment 23 until we issued our decision in Brewster.”). Thus, the question is whether the 24 undisputed facts establish that Cochran, Zagorski, and Stanley acted with the 25 particular purpose of depriving Untalan of the enjoyment of her right or reckless 26 disregard of that right. 27 Defendants fail to point to evidence showing Cochran, Zagorski, or Stanley are 28 entitled to summary judgment on the question of specific intent. To the contrary, 1 several pieces of evidence support their intent to deprive Untalan of possession for 2 thirty days, or reckless disregard for the constitutional harm such an unjustified 3 seizure would cause: chiefly, the conditional release, which restricted Untalan’s access 4 to the Vehicle even if she had a licensed driver with her, and CHP policy regarding 5 enforcement of the thirty-day impound despite Ninth Circuit precedent holding 6 unjustified impounds unconstitutional. Viewing all reasonable inferences in Untalan’s 7 favor, a reasonable juror could find this circumstantial evidence supports Cochran’s 8 and Zagorski’s specific intent to deprive Untalan of her property as well as Stanley’s 9 reckless disregard for that deprivation. Consequently, Cochran, Zagorski, and Stanley 10 are not entitled to summary judgment on Untalan’s Bane Act claim. 11 As Vaughan is entitled to summary judgment on the issue of whether he 12 violated Untalan’s constitutional rights, he is also entitled to summary judgment on 13 her third claim for violation of the Bane Act. 14 3. State Law Immunities 15 Finally, Defendants argue that even if Untalan can establish a Bane Act 16 violation, (a) they are entitled to immunity based on California Government Code 17 sections 820.6 and 821.6, and (b) Stanley is entitled to immunity based on 18 sections 820.2 and 820.8. (DMot. 17–20.) “When applicable, these grants of 19 immunity preclude the imposition of damages on public employees . . . .” Gibson v. 20 Cnty. of Riverside, 181 F. Supp. 2d 1057, 1086 (C.D. Cal. 2002). “In general, under 21 California law public employees are not liable for actions taken to enforce laws unless 22 they act with malice or without due care or good faith.” Id. (citing Cal. Gov’t Code 23 §§ 820.4, 820.6, & 821.6). Defendants bear the burden to establish immunity. Id. 24 a. Government Code sections 820.6 and 821.6—Cochran & Zagorski 25 Section 820.6 provides immunity for public employees acting “in good faith, 26 without malice, and under the apparent authority of an enactment that is 27 unconstitutional.” Untalan argues the evidence shows Defendants based their release 28 refusals on CHP’s impound policy, rather than on Section 14602.6, removing their 1 acts from the protective umbrella of section 820.6’s immunity. (Pl. Opp’n 26–28.) 2 She points to how the impound policy differs from the statute, in that it requires 3 drivers obtaining early release to be denied all access to their vehicle—a requirement 4 missing from Section 14602.6—and that the conditional release agreement mirrors the 5 policy’s language, rather than Section 14602.6’s. (Id.; Release Agreement; see Decl. 6 of Kaytie Sproul Ex. 6 (Highway Patrol Manual 81.2) ¶ 2.2.d.(10), ECF No. 94-2.) 7 The Court agrees that this evidence raises doubts about whether Defendants were 8 acting under authority of Section 14602.6 or were instead acting under authority of 9 CHP policy, which is not an “enactment.” See Cal. Gov’t Code §§ 810.6, 811.6 10 (defining enactment and regulation, respectively). As such, a reasonable juror could 11 find Defendants are not entitled to immunity under this section. 12 Next, Government Code section 821.6 is “confin[ed] . . . to malicious 13 prosecution actions.” Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 14 2016) (quoting Sullivan v. Cnty. of Los Angeles, 12 Cal. 3d 710, 721 (1974)); 15 Blankenhorn v. City of Orange, 485 F.3d 463, 488 (9th Cir. 2007) (“[A]s 16 [section 821.6] applies to police conduct, [it] is limited to actions taken in the course 17 or as a consequence of an investigation.”). This matter does not concern an 18 investigation or a malicious prosecution, so the immunity of Government Code 19 section 821.6 does not apply. See Blankenhorn, 485 F.3d at 488. 20 b. Government Code sections 820.2 and 820.8—Stanley 21 Section 820.2 states that “a public employee is not liable for an injury resulting 22 from his act or omission where the act or omission was the result of the exercise of the 23 discretion vested in him.” Under this section, “[q]uasi-legislative policy decisions are 24 protected from judicial scrutiny pursuant to a separation of powers rationale,” but 25 defendants must show “an actual policy decision made by an employee who 26 consciously balanced risks and advantages.” Hernandez v. Cnty. of Tulare, 27 666 F.3d 631, 639 (9th Cir. 2012) (internal quotation marks omitted). Applied here, it 28 is clear the undisputed facts do not establish that Stanley balanced the risks and 1 || advantages of policy decisions. Stanley disclaims any participation in the decision to not revise CHP policy in light of Brewster. Even viewing the facts in favor of 3 || Untalan, such that Stanley did participate in that determination, no evidence suggests 4|| he exercised discretion or balanced any risks or advantages. As such, Stanley is not 5 || entitled to summary judgment on the basis of this immunity provision. 6 Lastly, under Government Code section 820.8, “a public employee is not liable 7 || for an injury caused by the act or omission of another person.” This section codifies 8 | the accepted principle that public employees are liable only for their own torts. See 9 || Martinez v. Cahill, 215 Cal. App. 2d 823, 824 (1963). As discussed above, Untalan 10 || seeks to hold Stanley lable for his own deficient supervisory acts. Therefore, this 11 || immunity does not apply either. 12 Vv. CONCLUSION 13 For the reasons discussed above, Defendants’ Motion for Partial Summary 14 | Judgment is GRANTED in part and DENIED in part. (ECF No. 94.) Specifically, 15 || Defendants’ motion is granted as to Trinidad and Vaughan on Untalan’s second cause 16 || of action, granted as to Vaughan on Untalan’s third cause of action, and denied as to all other issues and claims. Untalan’s Motion for Partial Summary Judgment is 18 | GRANTED in part and DENIED in part. (ECF No. 97.) Specifically, Untalan’s 19 | motion is granted as to her first cause of action against Trinidad, granted as to her 20 || second cause of action in that she has established as a matter of law that she suffered a 21 || constitutional violation due to unlawful prolonged impound, granted as to her second 22 || cause of action on the liability of Cochran, Zagorski, and Johnson, and denied as to 23 || the second cause of action on the liability of Trinidad and Vaughan. 24 IT IS SO ORDERED. 25 August 2, 2021 ss 26 fy Géldiot 28 OTIS D. WRIGHT, II

UNITED STATES DISTRICT JUDGE