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TODD H. MASTER [SBN 185881] Exempt from Filing Fees
F I Ejfit
tnmsterfiflhnmiawxom overnment
SHAWN M. RIDLEY [SBN 144311] -
c 6103
sridleflfilh rm rlaw.com SAN MATEOCOUNTY
HOWARD ROME MARTIN & RIDLEY LLP
1900 O’Farrell Street, Suite 280
San Mateo, CA 94403
Telephone: (650) 365-7715
Facsimile: (650) 364-5297 .
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Attorneys for Defendants AARON K. WONG and JEREMY R. BRANDENBURG, individually
and as members of the San Bruno Police Department; G. COOK, an individual; J. KOHLVELD, an
individual, SAN BRUNO POLICE DEPARTMENT, erroneously sued herein as a public entity;
CITY OF SAN BRUNO, a municipal entity / Repl:
t in
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA Authorities
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IN AND FOR THE COUNTY OF SAN MATEO and
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CHIAHO WU, an individual, on behalf of those Case No. 17CIV05749 0
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12 similarly situated,
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Assigned for All Purposes to CIV—
Memorandum
Plaintiff,
1123107
STREET, CA
(650)
13 Hon. Marie S. Weiner, Dept. 2 17—
MPAR
MARTIN ,
MATEO,
14 VS. REPLY TO PLAINTIFF’S OPPOSITION
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TELEPHONE TO DEFENDANTS’ DEMURRER TO
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AARON K. WONG and JEREMY FIRST AMENDED COMPLAINT
BRANDENBURG, individually and as
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members of the San Bruno Police Department, Date: May 10, 2018
17 et al., Time: 10:00 a.m.
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Dept: 2
18 Defendants.
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I BY FAX
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INTRODUCTION
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Notwithstanding the rambling introduction to Plaintiff‘s Opposition, which touches on
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government fraud, waste, abuse and the towing of vehicles having no association or relationship to
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this case whatsoever, the issue which currently confronts this Court is simply whether Plaintiff’s
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First Amended Complaint (“FAC”) states facts sufficient to constitute any cause of action against
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the City defendants in the context of the legal towing of his Airstream trailers on July 6 and his
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REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. l7ClV05749
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Toyota Tundra on July 7, 2017.
In response to his continuing attempts to convolute the facts and law, it bears repeating here
that the towing of Plaintiff s trailers on July 6 was pursuant to Vehicle Code §22651(o). The
impoundment of his Toyota Tundra on July 7 was pursuant to Vehicle Code §14602.6. Far from
supporting his position, Plaintiffs blatant misinterpretation and misapplication of statutory and
idecisional authority evidences the lack of any cognizable claim against the City defendants.
II. '
PLAINTIFF’S FIRST AMENDED COMPLAINT AND REGUEST‘FORJTUDIC 1"
§_:_
NOTICE ESTABLISH THAT THE REOUMMENTS OF VEHICLE CODE 14602.6
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WERE SATISFIED WITHVRESPECT TO THE IMROUNDMENT OF '
HIS TOYOTA ,, ‘
104‘ TUNDRA ON JULY 7.2017
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113 California Vehicle Code §14602.6(a)(1) provides:
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12 Whenever a peace officer determines that a person was driving a vehicle while his or her
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driving privilege was suspended or revoked, driving a vehicle while his or her driving
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(650)
13 privilege is restricted pursuant to Section 13352 or 23575 and the vehicle is not equipped
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with a functioning, certified interlock device, or driving a vehicle without ever having been
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14 _ issued a driver's license, the peace officer may either immediately arrest that person
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and cause the removal and seizure of that vehicle or, if the vehicle is involved in a
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traffic collision, cause the removal and seizure of the vehicle without the necessity of
arresting the person in accordance with Chapter 10 (commencing with Section 22650)
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of Division 11. A vehicle so impounded shall be impounded for 30 days. (Emphasis added).
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As best as the City defendants can tell from a reading of his Opposition, Plaintiff appears to
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argue that because he was not taken into custodial custody on July 7 prior to his vehicle being
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impounded, Officers Wong and Brandenburg violated §14602.6 which, in turn, serves as the
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predicate for Plaintiff’s state court causes of action against the Officers for conversion, conspiracy,
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22, receipt of stolen property and false imprisonment. However, Plaintiffs FAC and Request for
_23 Judicial Notice belie his flawed logic.
24 Despite the City defendants’ prior citation of Penal Code §83 6.5, Plaintiff simply chooses
25 to ignore the distinction between a custodial arrest and a non-custodial arrest. A reading of
26; paragraphs 94-111 of Plaintiff’s FAC establishes that while a custodial arrest (hand-cuffs, transport
REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. l7ClV05749
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to police station, etc.) did not occur on July 7, 2017, a non-custodial arrest was, in fact, effectuated.
Plaintiff was clearly not free to leave after being pulled-over for driving on a suspended license, as
evidenced by the fact that he was issued a citation (FAC, paragraph 99) and his vehicle was
impounded.
Significantly, Plaintifi" has requested that this Court take judicial notice of the very
document which memorializes his non-custodial arrest on July 7, 2017. Attachment 5 to
Plaintiffs Request for Judicial Notice is the Vehicle Report prepared by Officer Brandenburg on
July 7 at the time Plaintiffs Tundra was impounded. In the section entitled “Remarks”, the report
memorializes that a (non-custodial) arrest was, in fact, effectuated upon Plaintiff, who was cited
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10 and released.
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As demonstrated throughout the City defendants’ briefs, Officers Brandenburg and Wong
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fully complied with the requirements of §l4602.6. The impounding of Plaintiffs Toyota Tundra
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on July 7 was entirely legal. As such, there is no legal predicate for Plaintiff’s state court causes of
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action against the Officers for conversion, conspiracy, receipt of stolen property or false
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imprisonment. Said causes of action fail to state facts sufficient to constitute a cause of action as a
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matter of law and the City defendants’ demurrer should therefore be sustained without leave to
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amend pursuant to CCP 430.10(e).
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Plaintiff ‘s reliance on the case of Thompson v. Cz’zjy ofPetaluma (2014) 231 CA4th 101 for
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the proposition that he has stated facts sufficient to maintain his state court causes of action against
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20 Officers Wong and Brandenburg is misplaced. First, Thompson did not involve the causes of
21 action alleged by Plaintiff in this action. In Thompson, plaintiff sought to enjoin the City of
22 Petaluma and its police department from using taxpayer funds to order 30-day impoundment of
23 vehicles pursuant to Vehicle Code §l4602.6, when a driver operated a vehicle without a valid
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driver's license, but with the consent of the owner of the vehicle. Plaintiff also sought a declaration
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that §l4602.6 violated due process due to alleged inadequacies of its notice provisions and the
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REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. l7ClV05749
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absence of provisions requiring a written statement of decision.
After quickly disposing Of plaintiffs due process arguments, finding that §14602.6 passed
constitutional muster, the court in Thompson turned its attention to plaintiff’s allegation that
Petaluma was impounding vehicles “under circumstances not permitted by section 14602.6”. The
Thompson court noted that the Attorney General and Ninth Circuit have recognized that a violation
of §14602.6 occurs when officers impound a vehicle when the driver has not been arrested and the
vehicle has not been involved in an accident, citing the Attorney General’s Opinion that the
provision “confers discretionary authority on an officer to arrest and impound gimpound in the
event of a traffic collision.” (Id. at 110) (Emphasis Added).
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10 In this case, Plaintiff was pulled—over, detained and issued a citation for violation of
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11 §14602.6’s prohibition against operating a motor vehicle while one’s license is suspended.
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12_ Pursuant to Penal Code §83 6.5, the issuance of a citation to Plaintiff constituted a non—custodial
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13 arrest. Officer Brandenburg was therefore lawfully entitled to impound Plaintiff’s Tundra pursuant
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14 to Vehicle Code §14602.6(a)(1).
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15 Finally, turning to Plaintiffs Bane Act claim, he has consistently failed to plead the
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16 requisite elements of violence or intimidation by threat of violence necessary to state a cause of
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action. Gabrielle A. v. County of Orange (2017) 10 CASth 1268, 1290. In Bender v. County of
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Los Angeles (2103) 217 CA4th 968, 981, the court held that “a wrongful detention that is
‘accompanied by the requisite threats, intimidation, or coercion’ —‘coercion independent from the
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coercion inherent in the wrongful detention itself th at is ‘deliberate and spiteful’ — is a violation
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of the Bane Act.” (Emphasis added) In Bender, the court found that the requisite showing of
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coercion separate and apart from the coercion inherent in an unlawful arrest was present based on
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the fact that the officer “deliberately and unnecessarily beat and pepper—sprayed the unresisting,
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already handcuffed plaintiff. That conduct was not the coercion that is inherent in a wrongful
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arrest.” Bender, supra, at p. 979 (Emphasis added).
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The facts of the instant case are readily distinguishable from those in Bender which allowed
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REPLY TO PLAIN’I‘IFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. 17C1V05749
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the Court to find a violation. First, Plaintiff’s arrest and detention in this matter were entirely
lawful. Second, there is no allegation in Plaintiffs FAC that he was subjected to threats,
intimidation or coercion independent fiom the coercion inherent in the detention itself. (See:
Paragraphs 94-111 of FAC). As such, Plaintiffs cause of action against the Officers for violation
of the Bane Act fails as a matter of law.
In the absence of a demonstrable violation of § 14602.6 by Officers Wong and/or
Brandenburg -- or of threats, intimidation or coercion in excess of those inherent in Plaintiffs
lawful detention, as required pursuant to the holding in the Bender case -- Plaintiff‘s state court
causes of action for Conversion, Conspiracy, Receipt of Stolen Property, False Imprisonment and
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violation of the Bane Act (Civil Code §52.1) are totally without merit and fail as a matter of law.
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III.
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PLAINTIFF’S CONTINUING PATTERN OF CON TRADICT ORY FACTUAL
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ALLEGATIONS AND CITATION OF INAPPOSITE STATUORY AN‘D‘DECISIONAL
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13 AUTHORITY BETRAY THE ABSENCE OF .ANY COLORABLE CAUSE OF ACTION
AGAINST THE CITY DEFENDANTS
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At page 8, lines 7—8 of his Opposition, Plaintiff states: “As explained in footnote 7 herein, a
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custodial arrest is required for a concurrent impound under §14602.6.” However, footnote 7 to
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Plaintiff’s Opposition cites language from United States v. Cervantes (9". Cir. 2012) 678 F.3d 798,
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18 in which the court was discussing California Vehicle Code §22651(h)(1), a statutory provision with
19 no relevance or application to this case. Plaintiff appears to advocate the untenable position that
20 §22651(h)(1) somehow requires Officer Wong and Brandenburg to effectuate a custodial arrest of
21 Plaintiff before they could lawfully impound his Tundra pursuant to §14602.6. Clearly, this
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argument is nonsensical and misstates the requirements of both statutes.
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Vehicle Code §2265 1(h)(1) simply sets forth one of the many circumstances under which
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an oflicer may remove a vehicle which is located within the territorial limits in which the officer
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may act:
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REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. 17CIV05749
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“When an officer arrests a person driving or in control of a vehicle for an alleged offense
and the officer is, by virtue of the Vehicle Code or other law, required or permitted to take,
and does take, the person into custody.”
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Likewise, §22651(o) (the section pursuant to which Plaintiffs Airstream and Utility trailers
were towed on July 6, 2017) outlines different circumstances under which an officer may have
vehicles removed from public streets (when the vehicles’ license plates do not match or their
registrations are expired in excess of 6 months). Simply put, nothing in §22651 codifies a
requirement for a custodial arrest before a vehicle may be impounded pursuant to §14602.6. To the
extent Plaintiff relies on this tortured interpretation of the law, the City defendants submit that the
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10 PAC fails as a matter of law to state facts sufficient to constitute any cause of action against them.
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11 Yet another example of Plaintiffs confusion is found in his assertion that Vehicle Code
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12 §l2801.9(t) somehow applies to this case. §l2801.9(f) pertains to the circumstances under which
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13 driver’s licenses will be issued to persons who are unable to submit satisfactory proof of United
(650)
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States citizenship, as long as they can otherwise prove their identity and California residency.
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Subsection (:0 of §12801.9 provides that officers may not detain or arrest a person solely on the
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belief that the person is an unlicensed driver, unless the officer has reasonable cause to believe the
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person driving is under the age of 16. Simply put, that has nothing to do with the case at bar.
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Officers Wong and Brandenburg did not stop and arrest Plaintiff on the belief he was an unlicensed
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20 driver. The Officers stopped Plaintiff because they had reasonable cause to believe Plaintiff was
21 operating a vehicle while his license was suspended. (See: FAC, paragraph 90). Plaintiff has
22 admitted that at all times material to this case, his license was suspended. (See: FAC, paragraph
23 88).
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REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS' DEMURRER TO FIRST AMENDED COMPLAINT; Case No. 17CIV05749
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IV.
EACH TOW WAS CONSTITUTIONALLY PERMISSIBLE
Plaintiff relies on People v. Williams (2006) 145 CA4th 756 for the proposition that
because his trailers were parked on a public street in a residential neighborhood and were not
impeding traffic, no community caretaking function was served by having them towed on July 6.
However, the last sentence of the language quoted by Plaintiff from Williams, which appears on
page 12 of his Opposition, is significant:
“Because appellant had a valid driver’s license and the car was properly registered, it was
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not necessary to impound it to prevent immediate and continued operation.” (Id. at 167).
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Unlike the situation in Williams, in the instant case (1) Plaintiff was not present when the
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trailers were identified and located by Officer Wong, who therefore had no way of knowing
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whether the vehicles had been abandoned, vandalized or were situated close to their owner’s
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residence; (2) the vehicles were not properly registered and had mismatched plates; and (3)
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Plaintiff did not possess a valid driver’s license on the date his vehicles were towed. The language
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16 previously cited by the City defendants from Halajian v. DB Towing (2012) 209 Cal.App.41h 1 is
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17 instinctive:
18 Plaintiff relies heavily onCitLiofC’oif'nélins, supra; 429iF.3.d"8-58, to support his argument that
the community caretaking doctrine does not apply to the facts of this case. Here, the trial court
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concluded that plaintiff’s situation was distinguishable from City ofCornelius; because (1) the
vehicle impounded in that case was safely and securely in the driveway of the owners, (2) the
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vehicle had a valid registration, and (3) one of the owners had a valid driver's license. (Id at p.
21 fl) Because none ofthese threefaetOis is present in this case, we agree with the trial court
and conclude that the impounding ofplaintiff's truck was justified under the community
22 caretaking doctrine. As a result, the towing and irnpoundingofplaintifi‘s truck was not an
unreasonable seizure in violation of his Fourth Amendment rights. (Emphasis added). (Id. at 8)
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The holdings in Williams and ,Halcy'ian'support the City defendants’ position that the
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“community caretaking” exception to the Fourth Amendment’s prohibition against warrantless
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26 seizures was satisfied in this case by towing Plaintiffs trailers on July 6 to prevent not only
REPLY TO PLAINTIFF ’S OPPOSITION 'I‘O DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. 17ClV05749
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potential theft and vandalism, but also their continued unlawful operation on public streets.
Similarly, at the time his Tundra was lawfully impounded on July 7 pursuant to Vehicle
Code §l4602.6, the community caretaking function was also clearly served. First, there was an
interest in preventing Plaintiff, whose license had been suspended, from continued unlawfiil
operation of his vehicle. In holding that §14602.6 does not violate state and federal constitutional
principles of equal protection or freedom from unreasonable seizures, the court in Thompson v.
City of Petaluma, infia, acknowledged the “governmental interest in efficiently and effectively
keeping the most dangerous drivers off the road.” (Id. at 107). In addition, leaving Plaintiff’s
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10 vehicle in a Burger King parking lot would have potentially given rise to the risks of theft and/or
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11 vandalism.
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12 V.
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13 CONCLUSION
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As demonstrated above, Vehicle Code §§22651(o) and 14602.6 have been held to be
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constitutional. Despite his continued attempts to build this molehill of a case involving three legal
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tows into a mountain of perceived conspiracies and constitutional violations, Plaintiff has
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consistently failed to articulate any cognizable cause of action — state or federal — against the City
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defendants. Although provided with ample opportunity to do so, Plaintiff has not, and cannot, state
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facts sufficient to constitute a cause of action against the City defendants. Instead, he resorts to
21 citing inapposite, irrelevant and/or distinguishable statutory and decisional authority in hopes of
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stumbling upon a viable theory of liability, all at great expense to the City. He should not be
23 allowed to do so for a third time.
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Based on all of the foregoing, the City defendants respectfully request that their demurrer to
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Plaintiff’s First Amended Complaint be sustained without leave to amend.
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REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. l7CIV05749
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DATED: May 1, 2018
HOWARD ROME MARTIN & RIDLEY LLP
By:
Todd H. Master \
Shawn M. Ridley
Attorneys for Defendants
AARON K. WONG and JEREMY R.
BRANDENBURG, individually and as
members of the
San Bruno Police Department;
G. COOK, an individual; J. KOHLVELD, an
individual, SAN BRUNO POLICE
DEPARTMENT, erroneously sued herein as a
public entity; CITY OF SAN BRUNO, a
municipal entity
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(650)
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.REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. 17CIV05 749
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Chiaho Wu v. Aaron K. Wong, et al./San Mateo County Supeiim Court Case No. 17CIV05749
STATE OF CALIFORNIA, COUNTY OF SAN MATEO:
I am citizen of the United States and employed in the county aforesaid; I am over the age
a
of eighteen years, and not a party to the within action; my business address is 1900 O’Farrell
Street, Suite 280, San Mateo, CA 94403. On the date set forth below I served the REPLY TO
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER T0 FIRST AMENDED
COMPLAINT on the following person(s) in this action:
James J. Huang, Esq. ATTORNEYS FOR PLAINTIFF
2310 Homestead Road CHIAHO WU
PO. Box 120
LOS Altos, CA 94024
LLP Telephone: (408) 892-4525
10 Email: jgnes.i,huang.03528@,gmail.com
’
Jonathan P. Marrs, Esq. ATTORNEYS FOR DEFENDANTS
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ll Law Office of Randy E. Thomas JOSE BENDOLA; DENNIS PERRY;
18826 N. Lower Sacramento Road, Suite G DRIVER 62
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365-7715
Woodbridge, CA 95258
Telephone: 209-369—9255
CA
MARTIN
STREET,
(650)
Fax: 209-3 69-9288
MATEO,
Email: woodbridgelaw77@yahoo.com
Honorable Marie S. Weiner' COURTESY COPY
TELEPHONE
San Mateo County Superior Court VIA FEDERAL EXPRESS
O’FARRELL
SAN
ROME
400 County Center, Courtroom 2E
1900
Redwood City, CA 94063
Email: comralexeivil@s_anmateoc‘ourt.org
HOWARD
K4 (VIA MAIL -- CCP §§ 1013(3), 2015.5) By placing a true copy thereof enclosed in a sealed envelope(s), addressed as
above, and placing each for collection and mailing on that date following ordinary business practices. I am readily
familiar with my firm's business practice of collection and processing of correspondence for mailing with the US. Postal
Service and correspondence placed for collection and mailing would be deposited in the US. Postal Service at Redwood
City, California, with postage thereon fully prepaid, that same day in the ordinary course of business.
|:I (VIA PERSONAL DELIVERY —- CCP
§§ 1011, 2015.5) By placing a true copy thereof enclosed in a sealed
envelope(s), addressed as above, and causing each envelope(s) to be hand delivered on that day by , in the ordinary
course of my firm’s business practice.
.El (VIA FACSIMILE -— CCP §§ 1013(e), 2015.5, CRC 2008) By arranging for facsimile transmission from facsimile
number 650/364-5297 to the above-listed facsimile number(s) prior to 5:00 pm. I am readily familiar with my firm's
business practice of collection and processing of correspondence via facsimile transmission(s) and any such
correspondence would be transmitted in the ordin
Preview
TODD H. MASTER [SBN 185881] Exempt from Filing Fees F I Ejfit tnmsterfiflhnmiawxom overnment SHAWN M. RIDLEY [SBN 144311] - c 6103 sridleflfilh rm rlaw.com SAN MATEOCOUNTY HOWARD ROME MARTIN & RIDLEY LLP 1900 O’Farrell Street, Suite 280 San Mateo, CA 94403 Telephone: (650) 365-7715 Facsimile: (650) 364-5297 . .- Attorneys for Defendants AARON K. WONG and JEREMY R. BRANDENBURG, individually and as members of the San Bruno Police Department; G. COOK, an individual; J. KOHLVELD, an individual, SAN BRUNO POLICE DEPARTMENT, erroneously sued herein as a public entity; CITY OF SAN BRUNO, a municipal entity / Repl: t in IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA Authorities LLP 10 IN AND FOR THE COUNTY OF SAN MATEO and ll I RIDLEY fPoints lIiiIII/IIIIIII/I/I/II/Illllillill 280 CHIAHO WU, an individual, on behalf of those Case No. 17CIV05749 0 05749 12 similarly situated, & SUITE 94403 365-7715 Assigned for All Purposes to CIV— Memorandum Plaintiff, 1123107 STREET, CA (650) 13 Hon. Marie S. Weiner, Dept. 2 17— MPAR MARTIN , MATEO, 14 VS. REPLY TO PLAINTIFF’S OPPOSITION O’FARRELL TELEPHONE TO DEFENDANTS’ DEMURRER TO 15 ROME SAN AARON K. WONG and JEREMY FIRST AMENDED COMPLAINT BRANDENBURG, individually and as 1900 16 ‘ members of the San Bruno Police Department, Date: May 10, 2018 17 et al., Time: 10:00 a.m. HOWARD Dept: 2 18 Defendants. 19 I BY FAX 20 INTRODUCTION 21 Notwithstanding the rambling introduction to Plaintiff‘s Opposition, which touches on 22 government fraud, waste, abuse and the towing of vehicles having no association or relationship to 23 this case whatsoever, the issue which currently confronts this Court is simply whether Plaintiff’s 24 First Amended Complaint (“FAC”) states facts sufficient to constitute any cause of action against 25 the City defendants in the context of the legal towing of his Airstream trailers on July 6 and his 26 REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. l7ClV05749 1 Toyota Tundra on July 7, 2017. In response to his continuing attempts to convolute the facts and law, it bears repeating here that the towing of Plaintiff s trailers on July 6 was pursuant to Vehicle Code §22651(o). The impoundment of his Toyota Tundra on July 7 was pursuant to Vehicle Code §14602.6. Far from supporting his position, Plaintiffs blatant misinterpretation and misapplication of statutory and idecisional authority evidences the lack of any cognizable claim against the City defendants. II. ' PLAINTIFF’S FIRST AMENDED COMPLAINT AND REGUEST‘FORJTUDIC 1" §_:_ NOTICE ESTABLISH THAT THE REOUMMENTS OF VEHICLE CODE 14602.6 LLP WERE SATISFIED WITHVRESPECT TO THE IMROUNDMENT OF ' HIS TOYOTA ,, ‘ 104‘ TUNDRA ON JULY 7.2017 RIDLEY 113 California Vehicle Code §14602.6(a)(1) provides: 280 12 Whenever a peace officer determines that a person was driving a vehicle while his or her & SUITE 94403 365-7715 driving privilege was suspended or revoked, driving a vehicle while his or her driving STREET, CA (650) 13 privilege is restricted pursuant to Section 13352 or 23575 and the vehicle is not equipped MARTIN with a functioning, certified interlock device, or driving a vehicle without ever having been MATEO, 14 _ issued a driver's license, the peace officer may either immediately arrest that person O’FARRELL TELEPHONE and cause the removal and seizure of that vehicle or, if the vehicle is involved in a 15 ROME SAN traffic collision, cause the removal and seizure of the vehicle without the necessity of arresting the person in accordance with Chapter 10 (commencing with Section 22650) 1900 16: of Division 11. A vehicle so impounded shall be impounded for 30 days. (Emphasis added). 17‘ HOWARD As best as the City defendants can tell from a reading of his Opposition, Plaintiff appears to 18' argue that because he was not taken into custodial custody on July 7 prior to his vehicle being 19 impounded, Officers Wong and Brandenburg violated §14602.6 which, in turn, serves as the 20 predicate for Plaintiff’s state court causes of action against the Officers for conversion, conspiracy, 21 22, receipt of stolen property and false imprisonment. However, Plaintiffs FAC and Request for _23 Judicial Notice belie his flawed logic. 24 Despite the City defendants’ prior citation of Penal Code §83 6.5, Plaintiff simply chooses 25 to ignore the distinction between a custodial arrest and a non-custodial arrest. A reading of 26; paragraphs 94-111 of Plaintiff’s FAC establishes that while a custodial arrest (hand-cuffs, transport REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. l7ClV05749 2 to police station, etc.) did not occur on July 7, 2017, a non-custodial arrest was, in fact, effectuated. Plaintiff was clearly not free to leave after being pulled-over for driving on a suspended license, as evidenced by the fact that he was issued a citation (FAC, paragraph 99) and his vehicle was impounded. Significantly, Plaintifi" has requested that this Court take judicial notice of the very document which memorializes his non-custodial arrest on July 7, 2017. Attachment 5 to Plaintiffs Request for Judicial Notice is the Vehicle Report prepared by Officer Brandenburg on July 7 at the time Plaintiffs Tundra was impounded. In the section entitled “Remarks”, the report memorializes that a (non-custodial) arrest was, in fact, effectuated upon Plaintiff, who was cited LLP 10 and released. RIDLEY 11 As demonstrated throughout the City defendants’ briefs, Officers Brandenburg and Wong 280 12 fully complied with the requirements of §l4602.6. The impounding of Plaintiffs Toyota Tundra & SUITE 94403 365-7715 on July 7 was entirely legal. As such, there is no legal predicate for Plaintiff’s state court causes of STREET, CA (650) 13. , MARTIN action against the Officers for conversion, conspiracy, receipt of stolen property or false MATEO, 14 O’FARRELL TELEPHONE imprisonment. Said causes of action fail to state facts sufficient to constitute a cause of action as a SAN 15 ROME matter of law and the City defendants’ demurrer should therefore be sustained without leave to 1900 16 ‘ amend pursuant to CCP 430.10(e). HOWARD 17 Plaintiff ‘s reliance on the case of Thompson v. Cz’zjy ofPetaluma (2014) 231 CA4th 101 for 18 the proposition that he has stated facts sufficient to maintain his state court causes of action against 19 20 Officers Wong and Brandenburg is misplaced. First, Thompson did not involve the causes of 21 action alleged by Plaintiff in this action. In Thompson, plaintiff sought to enjoin the City of 22 Petaluma and its police department from using taxpayer funds to order 30-day impoundment of 23 vehicles pursuant to Vehicle Code §l4602.6, when a driver operated a vehicle without a valid 24 driver's license, but with the consent of the owner of the vehicle. Plaintiff also sought a declaration 25 that §l4602.6 violated due process due to alleged inadequacies of its notice provisions and the 26 REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. l7ClV05749 3 absence of provisions requiring a written statement of decision. After quickly disposing Of plaintiffs due process arguments, finding that §14602.6 passed constitutional muster, the court in Thompson turned its attention to plaintiff’s allegation that Petaluma was impounding vehicles “under circumstances not permitted by section 14602.6”. The Thompson court noted that the Attorney General and Ninth Circuit have recognized that a violation of §14602.6 occurs when officers impound a vehicle when the driver has not been arrested and the vehicle has not been involved in an accident, citing the Attorney General’s Opinion that the provision “confers discretionary authority on an officer to arrest and impound gimpound in the event of a traffic collision.” (Id. at 110) (Emphasis Added). LLP 10 In this case, Plaintiff was pulled—over, detained and issued a citation for violation of RIDLEY 11 §14602.6’s prohibition against operating a motor vehicle while one’s license is suspended. 280 12_ Pursuant to Penal Code §83 6.5, the issuance of a citation to Plaintiff constituted a non—custodial & SUITE 94403 365-7715 13 arrest. Officer Brandenburg was therefore lawfully entitled to impound Plaintiff’s Tundra pursuant STREET, CA (650) MARTIN MATEO, 14 to Vehicle Code §14602.6(a)(1). O’FARRELL SAN TELEPHONE 15 Finally, turning to Plaintiffs Bane Act claim, he has consistently failed to plead the ROME 1900 16 requisite elements of violence or intimidation by threat of violence necessary to state a cause of 17 action. Gabrielle A. v. County of Orange (2017) 10 CASth 1268, 1290. In Bender v. County of HOWARD 18 Los Angeles (2103) 217 CA4th 968, 981, the court held that “a wrongful detention that is ‘accompanied by the requisite threats, intimidation, or coercion’ —‘coercion independent from the 19 coercion inherent in the wrongful detention itself th at is ‘deliberate and spiteful’ — is a violation 20 of the Bane Act.” (Emphasis added) In Bender, the court found that the requisite showing of 21 coercion separate and apart from the coercion inherent in an unlawful arrest was present based on 22 the fact that the officer “deliberately and unnecessarily beat and pepper—sprayed the unresisting, 23 already handcuffed plaintiff. That conduct was not the coercion that is inherent in a wrongful 24 arrest.” Bender, supra, at p. 979 (Emphasis added). 25 The facts of the instant case are readily distinguishable from those in Bender which allowed 26 REPLY TO PLAIN’I‘IFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. 17C1V05749 4 the Court to find a violation. First, Plaintiff’s arrest and detention in this matter were entirely lawful. Second, there is no allegation in Plaintiffs FAC that he was subjected to threats, intimidation or coercion independent fiom the coercion inherent in the detention itself. (See: Paragraphs 94-111 of FAC). As such, Plaintiffs cause of action against the Officers for violation of the Bane Act fails as a matter of law. In the absence of a demonstrable violation of § 14602.6 by Officers Wong and/or Brandenburg -- or of threats, intimidation or coercion in excess of those inherent in Plaintiffs lawful detention, as required pursuant to the holding in the Bender case -- Plaintiff‘s state court causes of action for Conversion, Conspiracy, Receipt of Stolen Property, False Imprisonment and LLP ‘ violation of the Bane Act (Civil Code §52.1) are totally without merit and fail as a matter of law. 10 RIDLEY 11 III. 280 12 PLAINTIFF’S CONTINUING PATTERN OF CON TRADICT ORY FACTUAL & SUITE 94403 365-7715 ALLEGATIONS AND CITATION OF INAPPOSITE STATUORY AN‘D‘DECISIONAL STREET, CA 13 AUTHORITY BETRAY THE ABSENCE OF .ANY COLORABLE CAUSE OF ACTION AGAINST THE CITY DEFENDANTS (650) MARTIN MATEO, 14 O’FARRELL TELEPHONE At page 8, lines 7—8 of his Opposition, Plaintiff states: “As explained in footnote 7 herein, a SAN 15 ROME custodial arrest is required for a concurrent impound under §14602.6.” However, footnote 7 to 1900 16 Plaintiff’s Opposition cites language from United States v. Cervantes (9". Cir. 2012) 678 F.3d 798, HOWARD 17 18 in which the court was discussing California Vehicle Code §22651(h)(1), a statutory provision with 19 no relevance or application to this case. Plaintiff appears to advocate the untenable position that 20 §22651(h)(1) somehow requires Officer Wong and Brandenburg to effectuate a custodial arrest of 21 Plaintiff before they could lawfully impound his Tundra pursuant to §14602.6. Clearly, this 22 argument is nonsensical and misstates the requirements of both statutes. 23 Vehicle Code §2265 1(h)(1) simply sets forth one of the many circumstances under which 24 an oflicer may remove a vehicle which is located within the territorial limits in which the officer 25 may act: 26 REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. 17CIV05749 5 “When an officer arrests a person driving or in control of a vehicle for an alleged offense and the officer is, by virtue of the Vehicle Code or other law, required or permitted to take, and does take, the person into custody.” i Likewise, §22651(o) (the section pursuant to which Plaintiffs Airstream and Utility trailers were towed on July 6, 2017) outlines different circumstances under which an officer may have vehicles removed from public streets (when the vehicles’ license plates do not match or their registrations are expired in excess of 6 months). Simply put, nothing in §22651 codifies a requirement for a custodial arrest before a vehicle may be impounded pursuant to §14602.6. To the extent Plaintiff relies on this tortured interpretation of the law, the City defendants submit that the LLP 10 PAC fails as a matter of law to state facts sufficient to constitute any cause of action against them. RIDLEY 11 Yet another example of Plaintiffs confusion is found in his assertion that Vehicle Code 280 & SUITE 365-7715 12 §l2801.9(t) somehow applies to this case. §l2801.9(f) pertains to the circumstances under which 94403 STREET, CA 13 driver’s licenses will be issued to persons who are unable to submit satisfactory proof of United (650) MARTIN MATEO, 14 States citizenship, as long as they can otherwise prove their identity and California residency. TELEPHONE O’FARRELL SAN 15 ROME Subsection (:0 of §12801.9 provides that officers may not detain or arrest a person solely on the 1900 16 belief that the person is an unlicensed driver, unless the officer has reasonable cause to believe the HOWARD 17 person driving is under the age of 16. Simply put, that has nothing to do with the case at bar. 18 Officers Wong and Brandenburg did not stop and arrest Plaintiff on the belief he was an unlicensed 19 20 driver. The Officers stopped Plaintiff because they had reasonable cause to believe Plaintiff was 21 operating a vehicle while his license was suspended. (See: FAC, paragraph 90). Plaintiff has 22 admitted that at all times material to this case, his license was suspended. (See: FAC, paragraph 23 88). 24 M 25 /// 26 /// REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS' DEMURRER TO FIRST AMENDED COMPLAINT; Case No. 17CIV05749 6 IV. EACH TOW WAS CONSTITUTIONALLY PERMISSIBLE Plaintiff relies on People v. Williams (2006) 145 CA4th 756 for the proposition that because his trailers were parked on a public street in a residential neighborhood and were not impeding traffic, no community caretaking function was served by having them towed on July 6. However, the last sentence of the language quoted by Plaintiff from Williams, which appears on page 12 of his Opposition, is significant: “Because appellant had a valid driver’s license and the car was properly registered, it was LLP not necessary to impound it to prevent immediate and continued operation.” (Id. at 167). 10 Unlike the situation in Williams, in the instant case (1) Plaintiff was not present when the RIDLEY 11 280 trailers were identified and located by Officer Wong, who therefore had no way of knowing 12 & SUITE 94403 365«7715 whether the vehicles had been abandoned, vandalized or were situated close to their owner’s STREET, CA 13 (650) MARTIN residence; (2) the vehicles were not properly registered and had mismatched plates; and (3) MATEO, 14 O’FARRELL SAN TELEPHONE 15 Plaintiff did not possess a valid driver’s license on the date his vehicles were towed. The language ROME 1900 16 previously cited by the City defendants from Halajian v. DB Towing (2012) 209 Cal.App.41h 1 is HOWARD 17 instinctive: 18 Plaintiff relies heavily onCitLiofC’oif'nélins, supra; 429iF.3.d"8-58, to support his argument that the community caretaking doctrine does not apply to the facts of this case. Here, the trial court 19 concluded that plaintiff’s situation was distinguishable from City ofCornelius; because (1) the vehicle impounded in that case was safely and securely in the driveway of the owners, (2) the 20 vehicle had a valid registration, and (3) one of the owners had a valid driver's license. (Id at p. 21 fl) Because none ofthese threefaetOis is present in this case, we agree with the trial court and conclude that the impounding ofplaintiff's truck was justified under the community 22 caretaking doctrine. As a result, the towing and irnpoundingofplaintifi‘s truck was not an unreasonable seizure in violation of his Fourth Amendment rights. (Emphasis added). (Id. at 8) 23 The holdings in Williams and ,Halcy'ian'support the City defendants’ position that the 24 “community caretaking” exception to the Fourth Amendment’s prohibition against warrantless 25 26 seizures was satisfied in this case by towing Plaintiffs trailers on July 6 to prevent not only REPLY TO PLAINTIFF ’S OPPOSITION 'I‘O DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. 17ClV05749 7 potential theft and vandalism, but also their continued unlawful operation on public streets. Similarly, at the time his Tundra was lawfully impounded on July 7 pursuant to Vehicle Code §l4602.6, the community caretaking function was also clearly served. First, there was an interest in preventing Plaintiff, whose license had been suspended, from continued unlawfiil operation of his vehicle. In holding that §14602.6 does not violate state and federal constitutional principles of equal protection or freedom from unreasonable seizures, the court in Thompson v. City of Petaluma, infia, acknowledged the “governmental interest in efficiently and effectively keeping the most dangerous drivers off the road.” (Id. at 107). In addition, leaving Plaintiff’s LLP 10 vehicle in a Burger King parking lot would have potentially given rise to the risks of theft and/or RIDLEY 11 vandalism. 280 & SUITE 365-7715 12 V. 94403 STREET, CA 13 CONCLUSION (650) MARTIN MATEO, 14 As demonstrated above, Vehicle Code §§22651(o) and 14602.6 have been held to be TELEPHONE O’FARRELL SAN 15 ROME constitutional. Despite his continued attempts to build this molehill of a case involving three legal 1900 16 tows into a mountain of perceived conspiracies and constitutional violations, Plaintiff has HOWARD 17 consistently failed to articulate any cognizable cause of action — state or federal — against the City 18 defendants. Although provided with ample opportunity to do so, Plaintiff has not, and cannot, state 19 20 facts sufficient to constitute a cause of action against the City defendants. Instead, he resorts to 21 citing inapposite, irrelevant and/or distinguishable statutory and decisional authority in hopes of 22 3 stumbling upon a viable theory of liability, all at great expense to the City. He should not be 23 allowed to do so for a third time. 24 Based on all of the foregoing, the City defendants respectfully request that their demurrer to 25 Plaintiff’s First Amended Complaint be sustained without leave to amend. 26 REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. l7CIV05749 8 DATED: May 1, 2018 HOWARD ROME MARTIN & RIDLEY LLP By: Todd H. Master \ Shawn M. Ridley Attorneys for Defendants AARON K. WONG and JEREMY R. BRANDENBURG, individually and as members of the San Bruno Police Department; G. COOK, an individual; J. KOHLVELD, an individual, SAN BRUNO POLICE DEPARTMENT, erroneously sued herein as a public entity; CITY OF SAN BRUNO, a municipal entity LLP 10 RIDLEY 111 280 12‘ & SUITE 94403 365—7715 STREET, CA 13 (650) MARTIN MATEO, 14 TELEPHONE O’FARRELL SAN 15 ROME 1900 16 HOWARD 17 18 19. 20' 21, 22 23 24 25 26 .REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; Case No. 17CIV05 749 9 Chiaho Wu v. Aaron K. Wong, et al./San Mateo County Supeiim Court Case No. 17CIV05749 STATE OF CALIFORNIA, COUNTY OF SAN MATEO: I am citizen of the United States and employed in the county aforesaid; I am over the age a of eighteen years, and not a party to the within action; my business address is 1900 O’Farrell Street, Suite 280, San Mateo, CA 94403. On the date set forth below I served the REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER T0 FIRST AMENDED COMPLAINT on the following person(s) in this action: James J. Huang, Esq. ATTORNEYS FOR PLAINTIFF 2310 Homestead Road CHIAHO WU PO. Box 120 LOS Altos, CA 94024 LLP Telephone: (408) 892-4525 10 Email: jgnes.i,huang.03528@,gmail.com ’ Jonathan P. Marrs, Esq. ATTORNEYS FOR DEFENDANTS RIDLEY 280 ll Law Office of Randy E. Thomas JOSE BENDOLA; DENNIS PERRY; 18826 N. Lower Sacramento Road, Suite G DRIVER 62 12 & SUITE 94403 365-7715 Woodbridge, CA 95258 Telephone: 209-369—9255 CA MARTIN STREET, (650) Fax: 209-3 69-9288 MATEO, Email: woodbridgelaw77@yahoo.com Honorable Marie S. Weiner' COURTESY COPY TELEPHONE San Mateo County Superior Court VIA FEDERAL EXPRESS O’FARRELL SAN ROME 400 County Center, Courtroom 2E 1900 Redwood City, CA 94063 Email: comralexeivil@s_anmateoc‘ourt.org HOWARD K4 (VIA MAIL -- CCP §§ 1013(3), 2015.5) By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and placing each for collection and mailing on that date following ordinary business practices. I am readily familiar with my firm's business practice of collection and processing of correspondence for mailing with the US. Postal Service and correspondence placed for collection and mailing would be deposited in the US. Postal Service at Redwood City, California, with postage thereon fully prepaid, that same day in the ordinary course of business. |:I (VIA PERSONAL DELIVERY —- CCP §§ 1011, 2015.5) By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and causing each envelope(s) to be hand delivered on that day by , in the ordinary course of my firm’s business practice. .El (VIA FACSIMILE -— CCP §§ 1013(e), 2015.5, CRC 2008) By arranging for facsimile transmission from facsimile number 650/364-5297 to the above-listed facsimile number(s) prior to 5:00 pm. I am readily familiar with my firm's business practice of collection and processing of correspondence via facsimile transmission(s) and any such correspondence would be transmitted in the ordin