Cornejo v. Tumlin

1

2

3

4

5 IN THE UNITED STATES DISTRICT COURT

6 FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 MARIMAR CORNEJO, et al., Case No. 20-cv-05813-CRB

9 Plaintiffs,

ORDER GRANTING

DEFENDANTS’ MOTIONS FOR

10 v.

SUMMARY JUDGMENT (DKTS. 84

& 86) AND DENYING PLAINTIFFS’

11 JEFFREY TUMLIN, et al., CROSS-MOTION FOR SUMMARY

JUDGMENT (DKT. 97)

12 Defendants.

13 This lawsuit stems from the towing of pro se Plaintiffs Marimar Cornejo and Jamil

14 Bey’s (collectively, “Plaintiffs”) 1998 Toyota Camry in February of 2020. See Compl.

15 (dkt. 1). Initially, there were eleven named defendants and eleven constitutional and tort

16 claims in the case. See Compl.; FAC (dkt. 20) ¶¶ 103–86. Now all that remains are four

17 section 1983 claims: (1) a Fourth Amendment claim against Tegsco LLC (d/b/a San

18 Francisco AutoReturn LLC) (“AutoReturn”), Nelsons Tow, and Dan Scanlan (collectively,

19 the “AutoReturn Defendants”), (2) an Eighth Amendment claim against the AutoReturn

20 Defendants, (3) an Eighth Amendment claim against the City and County of San Francisco

21 (“CCSF”) and Jeffery Tumlin (collectively, “City Defendants”), and (4) a Fourth

22 Amendment claim against Tumlin, see Order on MTD (dkt. 32); Order on MTD SAC (dkt.

23 54).

24 Defendants have moved for summary judgment on all claims. See City MSJ (dkt.

25 84), AutoReturn MSJ (dkt. 86). Plaintiffs oppose the AutoReturn Defendants’ motion as

26 to the Fourth Amendment claim and bring a cross-motion for summary judgment as to the

27 Eighth Amendment claim. Pl. Mot. (dkt. 97). For the reasons stated below, the Court

1 I. BACKGROUND

2 A. Towing

3 On February 27, 2020, at approximately 4:00 p.m., Plaintiffs parked their Toyota

4 Camry on Ellis Street near Powell Street. Kwan Decl. Ex. 1 (dkt. 84-2) at 19:10–11,

5 25:17–26:6, referencing Ex. 4 to Pl. Bey’s deposition. After 8:00 p.m., the San Francisco

6 Municipal Transportation Agency (“SFMTA”) ticketed the vehicle. Deir Decl. Ex. B (dkt.

7 86-1). At approximately 9:00 p.m., Nelsons Tow Company (“Nelsons Tow”) towed the

8 vehicle at the direction of SFMTA because the vehicle was parked in a construction zone

9 where Pacific Gas and Electric Company’s (“PG&E”) subcontractor, Alvah Contractors,

10 Inc. (“Alvah”), was performing work on PG&E’s transmission lines. Kwan Decl. Ex. 1 at

11 77:11–19, Deir Decl. ¶¶ 3–4. PG&E had a permit for a No Stopping construction zone

12 along Ellis Street, from Market Street to Powell Street, which was effective between

13 February 23, 2020 and February 29, 2020, between 7:00 p.m. and 6:00 a.m. City RJN

14 (dkt. 85).1 The parties disagree whether appropriate “No Stopping” signage was posted in

15

16

1 City Defendants request judicial notice of a copy of the temporary occupancy permit

issued to PG&E as found on the San Francisco Department of Public Works, Infrastructure

17 Design and Construction Division, Bureau of Street-Use & Mapping website. City RJN

Ex. A. Previously, this Court judicially noticed the existence of the temporary occupancy

18 permit, but not the truth of the facts recited therein. See Order on MTD at 7. The Court

previously explained:

19

Here, although the exhibits are posted on San Francisco Public

20 Work’s website, and therefore a government website, the facts

within the documents are still subject to reasonable dispute. The

21 posted documents demonstrate that a permit was issued and that

tow-away signs were posted for the subject construction zone,

22 however, the exhibits fail to demonstrate that these tow-away

signs were posted in the area from which Plaintiffs’ car was

23 actually towed. See Codog Decl. at 9–10; Ex. B. These are

disputed facts. Thus, this Court takes judicial notice of the

24 existence of the documents, but not of the truth of the facts

recited therein. See Lee, 250 F.3d at 690.

25

Id.

26

Plaintiffs have since admitted that their vehicle was parked on Ellis Street near

27 Powell Street. Kwan Decl. Ex. A at 25:17–26:6, referencing Ex. 4 to Pl. Bey’s deposition,

and the occupancy permit covered Ellis Street, from Market Street to Powell Street. The

1 the area from which Plaintiffs’ vehicle was towed at the time Plaintiffs parked the vehicle.

2 Bey Decl. ¶ 13 (dkt. 97-1) and Ex. A–D; City RJN Ex. A; City MSJ at 4 (citing dkt. 23-1,

3 Ex. B). However, the parties agree that at the time the vehicle was towed, the “No

4 Stopping” signs were posted. Kwan Decl. Ex. 1 at 77:4–25, 78:1–18; Rosenbaum Decl.

5 Ex. A at 78:1–18; Bey Decl. Ex. A–D.

6 After the vehicle was towed, the AutoReturn Defendants stored it, and it remains

7 stored at AutoReturn’s long-term storage facility. Deir Decl. ¶ 6. As of February 8, 2021,

8 AutoReturn’s website reflected that Plaintiffs owed $23,340.50 in fees. Bey Decl. Ex. L

9 (showing a total fee of $20,033.00); see Order on MTD at 17, n.6 (noting that the total fees

10 listed on AutoReturn’s website was $23,340.50 as of February 8, 2021). The AutoReturn

11 website has since been updated to reflect a far lower amount of fees owed—$4,380.50—

12 which accounts for the 60-day statutory limit2 on storage fees for towed vehicles. Kwan

13 Decl. ¶ 4; Deir Decl. ¶¶ 8–9.

14 B. Procedural History

15 On August 17, 2020, Ms. Cornejo filed a complaint against Alvah, CCSF, Cameron

16 A. Hale, Nelsons Tow, PG&E, AutoReturn, SFMTA, Dan Scanlan, and Jeffrey Tumlin,

17 alleging numerous violations of her constitutional rights under 42 U.S.C. § 1983, as well as

18 claims for a violation of California Civil Code § 52.1, intentional infliction of emotional

19 distress or negligent infliction of emotional distress, negligence, conversion, and trespass.

20 See Compl.

21 Following the complaint, Ms. Cornejo filed an ex parte application for a temporary

22

23 Defendants’ request for judicial notice. City RJN Ex. A.

2 California Vehicle Code section 22851(a)(1) limits the storage fee to a maximum of 60

24 days. In relevant part, the statute provides that “[w]henever a vehicle has been removed to

a garage under this chapter and the keeper of the garage has received the notice or notices

25 as provided herein, the keeper shall have a lien dependent upon possession for his or her

compensation for towage and for caring for and keeping safe the vehicle not exceeding 60

26 days.” Cal. Veh. Code § 22851(a)(1) (emphasis added); see also Deir Decl. ¶ 8 (“[T]he

City and AutoReturn are restricted by the California Vehicle Code from charging for more

27 than 60 days of storage for [Plaintiffs’] vehicle.”). At the time this lawsuit was filed, the

AutoReturn website “show[ed] the amount [owed] if there were no 60-day maximum.”

1 restraining order to enjoin Defendants from depriving Ms. Cornejo of her vehicle until the

2 final resolution of the case, and for damages for Ms. Cornejo’s lost use of her vehicle. See

3 App. for TRO (dkt. 2). This Court denied the application for a TRO because Plaintiff

4 could not demonstrate a likelihood of irreparable harm. See Order re: TRO (dkt. 7).

5 Thereafter, PG&E, CCSF, and Alvah, respectively, filed motions to dismiss pursuant to

6 Rule 12(b)(6) of the Federal Rules of Civil Procedure. See generally MTDs (dkts. 14–15,

7 17). After missing her deadlines to oppose the PG&E motion and the CCSF motion, Ms.

8 Cornejo filed a motion for administrative relief to extend time to amend her complaint,

9 which this Court granted for good cause. See Admin. Mot. (dkt. 18); see also Order re:

10 Admin. Mot. (dkt. 19).

11 On November 22, 2020, Ms. Cornejo filed her First Amended Complaint (“FAC”),

12 adding Jamil Bey (“Mr. Bey”) as another plaintiff.3 FAC ¶¶ 30–37.

13 1. Motions to Dismiss FAC

14 All Defendants moved to dismiss the FAC in December of 2020. See AutoReturn

15 MTD (dkt. 21); Alvah MTD (dkt. 22); PG&E MTD (dkt. 23); CCSF MTD (dkt. 24). In

16 February of 2021, the Court granted in part and denied in part the motions to dismiss by

17 various defendants. See Order on MTD. The Court dismissed some claims with

18 prejudice—including the state law claims, the Fourth Amendment claim against Defendant

19 CCSF, the Fourteenth Amendment claim against all defendants, and the section 1985 claim

20 against Defendants AutoReturn, Alvah, and PG&E. Id. at 19. The Court dismissed with

21 leave to amend Plaintiffs’ Fourth Amendment claim against Defendants Alvah and PG&E.

22 Id. The Court did not dismiss the Fourth Amendment claim against AutoReturn or the

23 Eighth Amendment claim against the AutoReturn Defendants and the City Defendants. Id.

24

25

26

3 Additionally, the FAC named the following defendants: (1) CCSF; (2) SFMTA; (3)

Jeffrey Tumlin, SFMTA’s Director, in his official capacity; (4) AutoReturn; (5) John

27 Wicker, AutoReturn’s CEO, in his official capacity; (6) Dan Scanlan, AutoReturn’s Vice

President, in his individual and official capacities; (7) Nelsons Tow; (8) Alvah; (9)

1 at 19 n.8.4

2 2. Motions to Dismiss SAC

3 In July of 2021, Plaintiffs filed a Second Amended Complaint, see SAC (dkt. 40),

4 and defendants filed four new motions to dismiss, see CCSF MTD SAC (dkt. 42);

5 AutoReturn MTD SAC (dkt. 41); Alvah MTD SAC (dkt. 44); PG&E MTD SAC (dkt. 45).

6 The Court granted in part and denied in part the defendants’ motions. See Order on MTD

7 SAC. The only remaining claims are the Fourth Amendment claim against the AutoReturn

8 Defendants and Tumlin, and the Eighth Amendment claim against the AutoReturn

9 Defendants and the City Defendants. Id. at 12.

10 3. Motions for Summary Judgment

11 Defendants now move for summary judgment as to all claims. See City MSJ,;

12 AutoReturn MSJ. Plaintiffs oppose the AutoReturn Defendants’ motion for summary

13 judgment on the Fourth Amendment claim on the grounds that there is a genuine dispute as

14 to whether a “No Stopping” sign was posted when Plaintiffs parked their vehicle. See Pl.

15 Mot. at 4–5. In the alternative, Plaintiffs ask the Court to grant summary judgment in their

16 favor on the Fourth Amendment claim against the AutoReturn and the City Defendants.

17 Pl. Mot. at 16–17.5

18 Additionally, Plaintiffs bring a cross-motion for summary judgment on the Eighth

19 Amendment claim against the AutoReturn and the City Defendants. Id. at 11.

20 II. LEGAL STANDARD

21 Summary judgment is proper where the pleadings, discovery, and affidavits show

22

23

4 The Court noted that while AutoReturn had not challenged that claim, it could do so upon

amendment. Order on MTD at 12 n.5. In that same order, the Court held that Plaintiffs’

24 allegation that AutoReturn Defendants and City Defendants charged excessive fees was

sufficient to state a claim under the Eighth Amendment. Id. at 17, n.6 (total fee listed on

25 AutoReturn’s website was $23,340.50).

5 The Court’s February 2021 order dismissed the Fourth Amendment claim against CCSF

26 with prejudice. See Order on MTD SAC at 19. Res judicata prevents Plaintiffs from

bringing the same claim against these same defendants. See Owens v. Kaiser Found.

27 Health Plan, Inc., 244 F.3d 708, 713–14 (9th Cir. 2001). To the extent that Plaintiffs seek

judgment on the Fourth Amendment claim against CCSF, that claim is no longer in the

1 that there is “no genuine dispute as to any material fact and the [moving] party is entitled

2 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that may

3 affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

4 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

5 reasonable jury to return a verdict for the nonmoving party. Id.

6 The moving party for summary judgment bears the initial burden of identifying

7 those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a

8 genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where

9 the moving party will have the burden of proof on an issue at trial, it must affirmatively

10 demonstrate that no reasonable trier of fact could find other than for the moving party. Id.

11 But on an issue for which the opposing party will have the burden of proof at trial, the

12 moving party need only point out “that there is an absence of evidence to support the

13 nonmoving party’s case.” Id.

14 Once the moving party meets its initial burden, the nonmoving party must go

15 beyond the pleadings to demonstrate the existence of a genuine dispute of material fact by

16 “citing to specific parts of material in the record” or “showing that the materials cited do

17 not establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c). A

18 triable dispute of fact exists only if there is sufficient evidence favoring the nonmoving

19 party to allow a jury to return a verdict for that party. Anderson, 477 U.S. at 249. If the

20 nonmoving party fails to make this showing, “the moving party is entitled to judgment as a

21 matter of law.” Celotex, 477 U.S. at 323.

22 It is not a court’s task “to scour the record in search of a genuine issue of triable

23 fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (internal citation omitted).

24 Rather, a court is entitled to rely on the nonmoving party to “identify with reasonable

25 particularity the evidence that precludes summary judgment.” See id. When deciding a

26 summary judgment motion, a court must view the evidence in the light most favorable to

27 the nonmoving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at

1 Finally, when parties file cross-motions for summary judgment, the court must

2 consider all of the evidence submitted in support of the motions to evaluate whether a

3 genuine dispute of material fact precludes summary judgment for either party. The Fair

4 Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir.

5 2001).

6 III. DISCUSSION

7 The AutoReturn Defendants, City Defendants, and Plaintiffs move for summary

8 judgment on the Eighth Amendment claim. See AutoReturn MSJ; City MSJ; Pl. Mot. at

9 11. The AutoReturn Defendants move for summary judgment on the Fourth Amendment

10 claim. See generally AutoReturn MSJ. This order addresses the issues in the following

11 order: (A) the Eighth Amendment claim against the City Defendants, (B) the Fourth

12 Amendment claim against Tumlin, (C) the Fourth Amendment claim against the

13 AutoReturn Defendants, and (D) the Eighth Amendment claim against the AutoReturn

14 Defendants.

15 A. The Eighth Amendment Claim Against the City Defendants

16 Plaintiffs claim that the City Defendants charged them an “excessive fine and

17 penalty” in violation of the Eighth Amendment. Pl. Mot. at 11. Plaintiffs argue that both

18 the $23,340.50 fee listed on AutoReturn’s website and the updated $4,380.50 fee are

19 excessive and violate the Eighth Amendment. Pl. Mot. at 3. The City Defendants contend

20 that: (1) there was no Eighth Amendment violation as a matter of law, see generally City

21 MSJ, and (2) they cannot be held liable even if the Court considers the $23,340.50 fee, see

22 generally City Reply (dkt. 99).

23 The Court analyzes each argument below and concludes that: (1) the $4,380.50 fee

24 is not grossly disproportionate under the Eighth Amendment, (2) CCSF cannot be held

25 liable under the Eighth Amendment for the $23,340.50 fee, and (3) Tumlin cannot be held

26 liable under the Eighth Amendment for the $23,340.50 fee.

27 1. Excessive Fines Clause

1 extract payments, whether in cash or in kind, ‘as punishment for some offense.’” Austin v.

2 United States, 509 U.S. 602, 609–10 (1993) (quoting Browning-Ferris Indus. of Vermont,

3 Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989)) (emphasis removed). “The

4 touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle

5 of proportionality: The amount of the forfeiture must bear some relationship to the gravity

6 of the offense that it is designed to punish.” United States v. Bajakajian, 524 U.S. 321,

7 334 (1998). A punitive forfeiture, which can include a civil penalty, “violates the

8 Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant’s

9 offense.” Id. The Ninth Circuit has held that this applies to municipal fines as well.

10 Pimentel v. City of Los Angeles, 974 F.3d 917, 922 (9th Cir. 2020).

11 The Court considers four factors to determine whether a fine is grossly

12 disproportionate to the underlying offense: “(1) the nature and extent of the underlying

13 offense; (2) whether the underlying offense related to other illegal activities; (3) whether

14 other penalties may be imposed for the offense; and (4) the extent of the harm caused by

15 the offense.” Pimentel, 974 F.3d at 921

16 a. $4,380.50 Fee

17 First, the Court addresses whether the $4,380.50 fee is grossly disproportionate

18 under the Eighth Amendment.

19 i. Nature and Extent of the Underlying Offense

20 In assessing the first factor, “[c]ourts typically look to the violator’s culpability.”

21 Pimentel, 974 F.3d at 922. Culpability increases if the violation “involved reckless

22 behavior.” Id. “So if culpability is high or behavior reckless, the nature and extent of the

23 underlying violation is more significant. Conversely, if culpability is low, the nature and

24 extent of the violation is minimal.” Id. Further, “[e]ven if the underlying violation is

25 minor, violators may still be culpable.” Id. at 923.

26 Defendants make two arguments on this point. First, Defendants argue that

27 Plaintiffs are culpable because “they parked their vehicle . . . without making any payment,

1 Code 7.2.46. City MSJ at 10; City Reply at 5. The Court agrees. There is no factual

2 dispute that Plaintiffs violated San Francisco Transportation Code 7.2.46, which prohibits

3 parking in an area authorized by the SFMTA for any public or private construction work.6

4 The evidence in the record shows that on the day of the tow, PG&E had a valid occupancy

5 permit for a “No Stopping” construction zone between 7 p.m. and 6 a.m. that covered Ellis

6 Street, from Market Street to Powell Street. City RJN, Ex. A. Plaintiffs have also

7 admitted that they parked their vehicle at Ellis Street near Powell Street—an area covered

8 by the occupancy permit—between 4:00 p.m. and 11:00 p.m. Kwan Decl. Ex. A at 19:4–

9 23. Plaintiffs’ vehicle was consequently ticketed and towed around 8:46 p.m., within

10 PG&E’s permit hours. Deir Decl. ¶ 4, Ex. B (tow slip).

11 Plaintiffs note that there is a dispute about whether a “No Stopping” sign was

12 posted in the area at the time Plaintiffs parked their vehicle. Pl. Mot. at 4. Viewing the

13 evidence in a light most favorable to Plaintiffs, a reasonable juror could conclude that

14 Plaintiffs’ actions were benign because Plaintiffs were unaware that they were parking in a

15 “No Parking” zone. However, even “benign actions may still result in some non-minimal

16 degree of culpability.” Pimentel, 974 F.3d at 923. Even if Plaintiffs were unaware that

17 they were parking in a “No Stopping” zone, there is no factual dispute that by remaining

18 parked on Ellis Street past 7:00 p.m., Plaintiffs violated San Francisco Transportation

19 Code section 7.2.46. See Towers v. City of Chicago, 173 F.3d 619, 625–26 (7th Cir. 1999)

20 (rejecting “the notion that plaintiffs must be considered completely lacking in culpability,”

21 even if they were unaware that their vehicle was used to transport illegal guns or drugs).

22 Thus, Plaintiffs’ lack of notice is not relevant to the nature of the underlying offense.

23 Second, Defendants argue that Plaintiffs are culpable because they “purposefully

24 chose not to pursue the administrative hearing process, which resulted in increased storage

25 fees.” City MSJ at 10; City Reply at 6. The Court agrees because, “while negligent or

26

27

6 The precise language of San Francisco Transportation Code Sec. 7.2.46 states that it is

prohibited: “[t]o violate any temporary Parking or traffic restriction authorized by the

1 reckless parking violations themselves may not entail a great degree of culpability,”

2 Plaintiffs’ refusal to address the violation via an administrative appeal—which provides a

3 process by which vehicle owners who believe their vehicle was illegitimately towed can

4 challenge fees—weighs in favor of the City Defendants. See Tsinberg v. City of New

5 York, No. 20 CIV. 749 (PAE), 2021 WL 1146942, at *7 (S.D.N.Y. Mar. 25, 2021),

6 judgment entered, No. 20 CIVIL 749 (PAE), 2021 WL 1167921 (S.D.N.Y. Mar. 25, 2021).

7 Plaintiff Bey admits that he chose not to pursue an administrative appeal for the return of

8 his vehicle, or a fee waiver, due in part to problems with SFMTA’s appeal system. Kwan

9 Decl. Ex. A at 52:19–53:8 (“[CCSF] pays the hearing officer, and, therefore . . . there’s a

10 conflict of interest, which is detrimental to my ability to receive a fair hearing.”). An

11 administrative hearing could have prevented Plaintiffs’ fees from accumulating, and

12 Plaintiffs chose not to pursue one. Id.; Rosales Decl. ¶ 15 (dkt. 84-4); Kwan Decl. Ex. B.

13 Even though Plaintiffs were not required to exhaust administrative rights in order to bring

14 an action under section 1983, their decision to sidestep the administrative process—a

15 process which could have mitigated the accumulation of storage fees—weighs in the City

16 Defendants’ favor.

17 Plaintiffs are therefore culpable because there is no factual dispute that they both

18 violated San Francisco Transportation Code section 7.2.46 and chose not to pursue

19 administrative remedies. However, like Pimentel, the Court concludes that Plaintiffs’

20 “culpability is low because the underlying parking violation is minor,” and finds that “the

21 nature and extent of [Plaintiffs’] violations” are “minimal but not de minimis.” See 974

22 F.3d at 924.

23 ii. Whether the Underlying Offense Relates to Other

Illegal Activities and Whether Other Penalties May

24 be Imposed for the Violation

25 There is no information in the record showing whether the underlying offense—

26 parking in a “No Parking” zone—relates to other illegal activities (the second factor) or

27 whether alternative penalties may be imposed instead of the $4,380.50 fee (the third

1 Pl. Mot. Accordingly, these factors do not help the Court’s analysis. See Pimentel, 974

2 F.3d at 923.

3 iii. Extent of the Harm Caused by the Violation

4 In assessing the fourth factor, courts “must determine the extent of the harm caused

5 by the violation.” Pimentel, 974 F.3d at 923. “The most obvious and simple way to assess

6 [the fourth] factor is to observe the monetary harm resulting from the violation.” Id. The

7 “amount in forfeiture must bear some relationship to the gravity of the offense that it is

8 designated to punish.” Bajakajian, 524 U.S. at 334 (emphasis added). Courts may also

9 consider non-monetary harms including “how the violation erodes the government’s

10 purposes for proscribing the conduct.” Id.

11 It is undisputed that the fees that Plaintiffs incurred serve a remedial purpose and

12 that the City Defendants would suffer a monetary harm if they were unable to recover the

13 costs associated with the tow. The City Defendants admit that “[CCSF] has high

14 administrative and storage fees associated with its tow program,” but assert that such fees

15 “are rationally and legitimately related to compensating the City for its tow fees.” City

16 MSJ at 9. The evidence supports this argument. The fees assessed for Plaintiffs’ violation

17 were part of the SFMTA schedule of fees for towing, Rosales Decl. Ex. A, which is

18 “approved by the SFMTA Board and is based on the actual costs SFMTA” tow program

19 incurs, id. ¶¶ 5–6.7

20 Plaintiffs incurred a $4,380.50 fee for the violation, which comprises:

21

 City Administrative Fee: $298.75. Rosales Decl. Ex. A. “This is a cost-recovery

22 fee for work performed by city staff, including Parking Control Offices . . . dispatch

center duties, officer patrolling, citing, and authorizing removal of vehicles . . .” Id.

23 at ¶ 8. This fee is calculated based on the number of tows the prior year. Id. ¶ 9.

24

 Contractor TEGSCO, LLC Tow Fee: $238.25. Id. Ex. A. This is a fee related to

25 AutoReturn’s annual management fee for its towing services. Id. ¶ 10. This fee is

“calculated by taking the total management fee divided by the number of towing

26 incidents the year prior.” Id.

27

 Lien Fees: $70. Id. Ex. A. These fees are permitted by California Vehicle Code

1

section 22851.12 and California Civil Code section 3074. Id. ¶ 11.

2

 Transfer Fee: $33.75. Id. Ex. A. This fee compensates the City’s costs of

3 transferring the towed vehicle to a long-term facility. Id. ¶ 12.

4

 Daily Storage Fees: $3,739.75. Id. ¶ 13. This fee is calculated at “$52.25 for the

5 first day, and $62.50 per day after the first day,” with a limit at 60 days. Id.; see

also California Vehicle Code section 22851 (60-day cap). These fees “compensate

6 the City for the rent paid to the landlord for the property where towed vehicles are

7 towed.” Rosales Decl. ¶ 13. “The daily storage fee is determined by dividing the

total rent paid by SFMTA for impound facilities in the previous year by the

8 combined total number of days each vehicle was stored in the previous year.” Id.

9 Of the $4,380.50 owed, $589.25 was for the violation and $3,687.50 was incurred

10 in storage fees. Rosales Decl. Ex. A. As in Pimentel, the Court finds that “[w]hile a

11 parking violation is not a serious offense,” the initial $589.25 fee was “not so large, either,

12 and likely deters violations.” See 974 F.3d at 924. The same is true of the subsequent

13 transfer and storage fees. When Plaintiffs were unable to provide proof of vehicle

14 registration, Deir Decl. ¶ 6, AutoReturn stored the vehicle pursuant to its contract with

15 CCSF and California Vehicle Code section 22850.3, id. Ex. A at appendix A, section J.4

16 and J.5; see California Vehicle Code section 22850.3 (“A vehicle placed in storage

17 pursuant to Section 22850 shall be released to the owner” only if the owner provides

18 “satisfactory proof of current vehicle registration.”). This transformed the initial $589 fee

19 into a $4,380.50 fee.

20 The Court further notes that Plaintiffs chose not to pursue administrative

21 remedies—which may have prevented the fees from accumulating—and that Plaintiffs

22 never provided proof of their vehicle registration, as required by California Vehicle Code

23 section 22850.3 for release of their vehicle. Deir Decl. ¶ 6. Plaintiffs “cannot complain

24 when [they] had control over this time period and yet allowed the penalties to accumulate.”

25 City & Cnty. of San Francisco v. Sainez, 77 Cal. App. 4th 1302, 1316 (2000); see also

26 Ojavan Invs., Ins. v. California Coastal Com., 54 Cal. App. 4th 373, 398 (1997) (“While

27 the fines total over $9.5 million, the amount is large only because Ojavan Investors

1 California Coastal Com, 62 Cal. App. 5th 812, 857 (2021) (“[C]ourts routinely consider a

2 person’s unwillingness to comply with the law when considering whether a fine is

3 excessive under the Eighth Amendment.”). Because it was within Plaintiffs’ control to

4 stop the accumulation of storage fees but Plaintiffs chose not to do so, the City Defendants

5 were justified in charging the daily $62.50 storage fee, which recompensed the City

6 Defendants for the rent paid in connection with vehicle storage. Rosales Decl. Ex. A and

7 ¶¶ 13–14. The daily storage fee was based on the actual real estate costs and losses

8 associated with the property site where CCSF and AutoReturn store towed vehicles.

9 Rosales Decl. ¶¶ 13–14. Plaintiffs have offered no evidence to the contrary. Thus, the

10 $4,380.50 fee bears “some relationship” to the gravity of the offense. Accord Gutierrez v.

11 City of Long Beach, No. CV 19-9941-DMG (EX), 2021 WL 6752001, at *3 (C.D. Cal.

12 Nov. 15, 2021) (concluding that a $4,625 property lien was not grossly disproportionate).

13 Additionally, the City Defendants would suffer non-monetary harms if the City’s

14 tow program was unable to tow vehicles that are that are blocking construction zones

15 because the government has a strong interest in keeping streets clear from obstructions,

16 and safe for public use. “Towing helps maximize on-street parking, manage traffic

17 congestions, and maintain clean, safe and functional streets.” Rosales Decl. ¶ 3. The

18 Court agrees with the City Defendants that there is “some relationship” between the

19 CCSF’s tow program and the public interest in keeping streets clear of obstructions and

20 deterring bad parking behavior. City MSJ at 15– 168; see Pimentel, 974 F.3d at 924

21 (“there is no real dispute that the City is harmed because overstaying parking meters leads

22

23

8 Plaintiffs argue that the City Defendants have admitted that they “use the excessive tow

24 fees as a method to deter bad parking behavior” and thus, “the fees are punitive in nature[,]

satisfying the core element” of an Eighth Amendment claim. Pl. Mot. at 7. The Eighth

25 Amendment prohibits the government from extracting payments as punishment. Austin,

509 U.S. at 609–10. However, a fee can serve a deterrent function. See Pimentel, 974

26 F.3d at 924 (stating that courts may consider the ordinance’s deterrent function so long as

the fine is not “grossly out of proportion to the activity the City is seeking to deter.”); see

27 also Towers, 173 F.3d at 625–26 (“[T]he City, in fixing the amount, was entitled to take

into consideration that the ordinances must perform a deterrent function [] . . . The $500

1 to increased congestion and impedes traffic flow.”); cf. Fitzpatrick v. City of Los Angeles,

2 No. CV 21-6841 JGB (SPX), 2023 WL 3318748, at *34 (C.D. Cal. Jan. 31, 2023)

3 (concluding that “the extent of the harm caused was minimal” because “there [was] no

4 community caretaking justification . . . served by the impound and possible forfeiture of

5 Plaintiffs’ vehicles.”) (quotations omitted). Plaintiffs do not submit any evidence to the

6 contrary. “Without material evidence . . . to the contrary, [the court] must afford

7 ‘substantial deference to the broad authority that legislatures necessarily possess in

8 determining the types and limits of punishments.’” Pimentel, 974 F.3d at 924 (quoting

9 Bajakajian, 540 U.S. at 336). In light of this deference, the Court finds that the $4,380.50

10 fines are “sufficiently large enough to deter [] violations” but are “not so large as to be

11 grossly out of proportion’ to the harms to public health and safety.’” See Gutierrez, 2021

12 WL 6752001, at *3 (citing Pimentel, 974 F.3d at 924).

13 Having considered the Bajakian factors, the Court concludes that the $4,380.50

14 fee—the amount of fees the City Defendants say are currently due—is not grossly

15 disproportionate under the Eighth Amendment. Because the $4,380.50 fee is not grossly

16 disproportionate under the Eighth Amendment, the Court does not analyze the City

17 Defendants’ liability for this fee. It is sufficient to grant the City Defendants’ motion on

18 the grounds that the $4,380.50 does not violate the Eighth Amendment. See Patel v.

19 Maricopa Cty., 585 F. App’x 452 (9th Cir. 2014) (affirming order granting summary

20 judgment in favor of defendants on plaintiff’s Monell claims where plaintiff did not show

21 an underlying constitutional violation).

22 a. $23,340.50 Fee

23 It is undisputed that, around the time that Plaintiffs brought suit, AutoReturn’s

24 website reflected a total balance of $23,340.50 and that such a fee could be excessive

25 under the excessive fines clause. City Reply at 4. The City Defendants do not address the

26 Bajakajian factors as to this higher fee and offer no evidence showing that it “bear[s] some

27 relationship to the gravity of the offense that it is designed to punish.” See Bajakajian, 524

1 excessive. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009) (“A

2 party abandons an issue when it has a full and fair opportunity to ventilate its views with

3 respect to an issue and instead chooses a position that removes the issue from the case.”)

4 (quotations omitted). Accordingly, the Court does not address the Bajakajian factors for

5 this fee.

6 Next, this order addresses whether the City Defendants—CCSF and Tumlin—can

7 be held liable for the $23,340.50 fee, assuming it is excessive.

8 2. Monell Liability Against CCSF

9 Local government entities can be liable under 42 U.S.C. § 1983 if the City’s

10 “policies, whether set by the government’s lawmakers or by those whose edicts or acts . . .

11 may fairly be said to represent official policy, caused the particular constitutional violation

12 at issue.” King v. Cnty. of Los Angeles, 885 F.3d 548, 558 (9th Cir. 2018) (quoting Streit

13 v. Cnty. of Los Angeles, 236 F.3d 552, 559 (9th Cir. 2001)). Municipal liability “must be

14 based upon enforcement of a municipal policy or custom that causes deprivation of a

15 plaintiff’s [constitutional] right, and not upon the municipality’s mere employment of a

16 constitutional tortfeasor.” Avalos v. Baca, 517 F. Supp. 2d 1156, 1162 (C.D. Cal. 2007),

17 aff’d, 596 F.3d 583 (9th Cir. 2010) (citing Monell v. Dep’t of Soc. Servs. of City of New

18 York, 436 U.S. 658, 694 (1978)).

19 “To maintain a [section] 1983 claim against a public entity defendant or a

20 supervisor not personally involved in the alleged violation, a plaintiff must allege that his

21 or her constitutional injury resulted from a policy, practice, or custom of the local entity.”

22 Id. “While the liability of municipalities doesn’t turn on the liability of individual officers,

23 it is contingent on a violation of constitutional rights.” Scott v. Henrich, 39 F.3d 912, 916

24 (9th Cir. 1994). “Thus, municipal defendants cannot be held liable when no constitutional

25 violation has occurred.” Harper v. Cty. of San Jose, No. C 09-05758 JW, 2011 WL

26 7109218, at *3 (N.D. Cal. Mar. 7, 2011). To prevail on a section 1983 complaint against a

27 government entity under Monell, “a plaintiff must satisfy a three-part test: (1) an official

1 and may not be an isolated incident; and (3) there is a nexus between the specific policy or

2 custom to the plaintiff’s injury.” Id. (citing Monell, 436 U.S. at 690–92).

3 Because the Court assumes that the $23,340.50 fee is excessive in violation of the

4 Eighth Amendment, the Court proceeds to analyze the second prong. The Court must

5 determine if Plaintiffs have established that CCSF has a policy, custom, or practice of

6 imposing excessive fines.

7 Plaintiffs have not identified any specific policy, custom, or practice of Defendants

8 that injured them. Plaintiffs point to CCSF and AutoReturn’s contract as evidence of

9 CCSF’s “policy” of imposing excessive fines. Pl. Mot. at 21. According to Plaintiffs, this

10 contract “sets in motion the pre-arranged plan . . . to seize vehicles found on the street on a

11 frequent basis, hold those vehicles at [AutoReturn’s] impound until recovered, and . . .

12 impose the charges preset” by the contract. Id. Plaintiffs further argue that because

13 neither the schedule of fees nor the contract “say the charges shall be capped at 60 days,”

14 this is evidence of a “policy or custom” of charging excessive fines. Id. However, the

15 contract at most establishes CCSF’s policy of imposing a $4,380.50 fee, see Deir Decl. Ex.

16 B, which the Court concludes does not violate the Eighth Amendment, see supra section

17 A.1.a. Therefore, Plaintiffs have failed to identify a policy on the part of CCSF that would

18 provide a basis for liability under Monell.

19 As to the $23,340.50 fee, the evidence submitted by Plaintiffs does not show that

20 CCSF has “longstanding practice or custom” of charging this fee. See Hopper v. City of

21 Pasco, 241 F.3d 1067, 1083 (9th Cir. 2001). At most, Plaintiffs’ evidence shows that, in

22 this instance, AutoReturn’s website incorrectly listed a $23,340.50 fee because AutoReturn

23 failed to account for California Vehicle Code section 22851 (the 60-day storage fee limit).

24 This is insufficient to establish Monell liability against CCSF because it fails to establish

25 that CCSF’s policy was the moving force behind the inaccurate charge. Further, Monell

26 liability under section 1983 cannot rest on “a single, isolated unlawful act by a non-

27 policymaking employee.” Robinson, 992 F. Supp.1198, 1205 (C.D. Cal. 1998); see also

1 predicated on isolated or sporadic incidents”); Mehhan v. Los Angeles Cnty., 856 F.2d 102

2 (9th Cir. 1988) (finding that two incidents were insufficient to establish custom). Although

3 the City Defendants have admitted that AutoReturn’s website listed a $23,340.50 fee, they

4 have also clarified that this amount was inaccurate, and “AutoReturn’s website has now

5 been updated to reflect the accurate amount of fees owed.” Kwan Decl. ¶ 4; see Oklahoma

6 City v. Tuttle, 471 U.S. 808, 823–24 (1985) (“Proof of a single incident of unconstitutional

7 activity is not sufficient to impose liability under Monell, unless proof of the incident

8 includes proof that it was caused by an existing, unconstitutional municipal policy, which

9 policy can be attributed to a municipal policy maker.”). The undisputed evidence falls far

10 short of establishing a “persistent and widespread” practice of charging excessive towing

11 and storage fees. See Connick v. Thompson, 563 U.S. 51, 61 (2011). The record is devoid

12 of any evidence of any other event involving similar conduct or constitutional violations.

13 Thus, the evidence is insufficient to support a Monell claim against CCSF based on the

14 existence of a practice that was widespread and so permanent and well settled as to

15 constitute a custom, policy, or practice. See Estate of Adomako v. City of Fremont, No.

16 17-cv-06386-DMR, 2018 WL 2234179, at *3 (N.D. Cal. May 16, 2018) (concluding that

17 the plaintiff failed to sufficiently allege a pattern, policy, or custom where the complaint

18 only alleged facts pertaining to the plaintiff).

19 For these reasons, the Court concludes that Plaintiffs have failed to establish a

20 “custom or policy” and that CCSF is entitled to summary judgment as to the Eighth

21 Amendment claim.

22 3. Individual Liability Against Tumlin

23 Plaintiffs also move for summary judgment against Tumlin, the SFMTA Director,

24 on the Eighth Amendment Claim. See generally Pl. Mot. The City Defendants respond

25 that the Court should not grant summary judgment against Tumlin because there is no

26 evidence establishing individual capacity liability against him. City Reply at 12.9 The

27

1 Court agrees with the City Defendants.

2 “[A] corporate officer does not incur personal liability for torts of the corporation

3 merely by reason of their official position, unless they participate in the wrong or authorize

4 or direct that it be done.” Caroline Cas. Ins. Co. v. RDD, Inc., 685 F. Supp. 2d 1052, 1058

5 (N.D. Cal. 2010). “In order to establish liability under § 1983, the plaintiff must allege the

6 defendant’s ‘personal participation,’ because there is ‘no respondeat superior liability.’”

7 Enos v. Young, NO. 21-16129, 2022 WL 12325438, at *1 (9th Cir. Oct. 21, 2022)

8 (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). A supervisor may be liable

9 if “there exists either (1) his or her personal involvement in the constitutional deprivation,

10 or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the

11 constitutional violation.” Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 798 (9th Cir.

12 2018) (citation omitted).

13 Plaintiffs have not presented any evidence that establishes Tumlin’s personal

14 participation in the constitutional deprivation, nor evidence showing a “sufficient causal

15 connection” between Tumlin’s conduct and the constitutional violation. See Redman v.

16 Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991). Plaintiffs argue that “Tumlin . . .

17 received notice of [their] Exhibits ‘A’ through ‘D’ via email[] on April 20, 2020 but

18 continued to keep the [vehicle] under false pretense that the tow was valid . . .” Pl. Mot. at

19 10. However, Plaintiffs have not provided evidence of this email. And Plaintiffs’

20 arguments and speculations of Tumlin’s personal involvement in storing the vehicle and

21 charging them the towing fees are not evidence.

22 Plaintiffs have therefore not established Tumlin’s liability under section 1983, and

23 their claim against Tumlin fails. The Court grants summary judgment for Defendant

24 Tumlin on the Eighth Amendment claim on this basis.

25 B. Fourth Amendment Claim Against Tumlin

26 Plaintiffs also move for summary judgment against Tumlin on the Fourth

27

1 Amendment Claim. See Pl. Mot. at 16–17. For the same reasons discussed above, the

2 Court concludes that Plaintiffs have not established Tumlin’s liability under section 1983,

3 and the Court grants summary judgment for Defendant Tumlin on the Fourth Amendment

4 claim.

5 C. Claims Against the AutoReturn Defendants

6 1. Fourth Amendment

7 Plaintiffs claim that the AutoReturn Defendants unreasonably seized their vehicle in

8 violation of the Fourth Amendment. Pl. Mot. at 15–16. The AutoReturn Defendants assert

9 that they are entitled to summary judgment on Plaintiffs’ Fourth Amendment claim

10 because they acted on their good faith belief that their actions were constitutional.

11 AutoReturn MSJ at 7. In the alternative, the AutoReturn Defendants argue that the tow

12 was lawful under the community caretaking doctrine. Id. at 9. Plaintiffs oppose, arguing

13 that there is a triable issue of fact as to whether “No Stopping” signage was posted at the

14 time that Plaintiffs parked their vehicle. Pl. Mot. at 4.

15 a. Good Faith Defense

16 The Court first determines whether the AutoReturn Defendants are entitled to

17 summary judgment on the Fourth Amendment claim on the grounds that they towed and

18 stored Plaintiffs’ vehicle in good faith. For the reasons set forth below, the Court

19 concludes that they are so entitled and grants the AutoReturn Defendants’ motion on the

20 Fourth Amendment claim on that basis.

21 The law is settled that a private party acting in concert with state authority is not

22 entitled to qualified immunity under section 1983. Richardson v. McKnight, 521 U.S. 399,

23 412 (1987). Nonetheless, both the Supreme Court and the Ninth Circuit have opined that a

24 section 1983 private defendant may have a “good faith defense.” In Wyatt v. Cole, 504

25 U.S. 158, 169 (1992), the Supreme Court held that it was not foreclosing the possibility

26 that private defendants faced with section 1983 liability “could be entitled to an affirmative

27 defense based on good faith and/or probable cause or that § 1983 suits against private,

1 also Richardson v. McKnight, 521 U.S. 399, 413–14 (1997) (same); Jensen v. Lane Cnty.,

2 222 F.3d 570, 580 n.5 (9th Cir. 2000) (not foreclosing the possibility that a section 1983

3 private defendant may be able to assert an affirmative good faith defense); accord

4 Robinson v. San Bernardino Police Dept., 992 F. Supp. 1198, 1207 (C.D. Cal. 1998)

5 (concluding that a private defendant was entitled a good faith defense and summary

6 judgment because she believed that the police had probable cause or a search warrant to

7 perform a sexual examination).

8 Additionally, in Clement v. City of Glendale, the Ninth Circuit recognized that

9 private defendants may invoke a good faith defense to a section 1983 claim on facts

10 similar to those presented here.10 518 F.3d 1090, 1097 (9th Cir. 2008). There, a plaintiff

11 sued a towing company under section 1983 for towing the plaintiff’s vehicle, which was

12 parked in violation state registration laws. Id. at 1092–93. Clement held that “the facts of

13 th[e] case justif[ied] allowing [the towing company] to assert [] a good faith defense.” Id.

14

15

10 Plaintiffs argue that Clement, 518 F.3d at 1097, should not apply because Clement

concerned the Fourteenth Amendment, not the Fourth Amendment. Pl. Mot. at 18–19.

16 The Court is not persuaded by Plaintiffs’ argument. Clement held that private defendants

may assert a “good faith” defense to a section 1983 defense. Id. Clement’s holding was

17 not limited to Fourteenth Amendment claims. See, e.g., Metal Jeans, Inc. v. California,

737 F. App’x 826, 829–30 (9th Cir. 2018) (good faith defense applied to shield towing

18 company from section 1983 liability for alleged Fourth Amendment violation); Deligiannis

v. City of Anaheim, No. SACV 06-720 DOC(JC), 2010 WL 1444538, at *12 (C.D. Cal.

19 Mar. 2, 2010), report and recommendation adopted, No. SACV 06-720DOC(JC), 2010

WL 1444535 (C.D. Cal. Apr. 3, 2010), aff’d, 471 F. App’x 603 (9th Cir. 2012) (applying

20 Clement and granting defendant’s summary judgment on plaintiff’s section 1983 claims

based on a good faith defense); Weldon v. Conlee, No. 1:13-CV-00540-LJO, 2015 WL

21 1811882, at *10 (E.D. Cal. Apr. 21, 2015), aff’d, 684 F. App’x 612 (9th Cir. 2017)

(applying Clement to a Fourth Amendment claim and granting summary judgment for

22 defendants based on a good faith defense); Harper v. Ramirez, No.

SACV150662JAKAFM, 2015 WL 9918409, at *9 (C.D. Cal. Dec. 16, 2015), report and

23 recommendation adopted, No. SACV1500662JAKAFM, 2016 WL 354068, at *1 (C.D.

Cal. Jan. 27, 2016) (concluding that the defendant was “entitled to a good faith defense

24 against any federal civil rights claim.”).

Plaintiffs further argue that, unlike Clement, AutoReturn’s tow truck driver was

25 acting under directions of a SFMTA employee, not a police officer. Pl. Mot. at 18–19.

However, this fact is inapposite because the SFMTA officer was a parking enforcement

26 officer, Deir Decl. ¶ 3–4, and like Clement, AutoReturn “did its best to follow the law and

had no reason to suspect that there would be a constitutional challenge to its actions.” See

27 518 F.3d at 1097.

1 at 1097. The court explained that the tow was authorized by the police department and

2 “the company did its best to follow the law and had no reason to suspect that there would

3 be a constitutional challenge to its actions.” Id. at 1097. Because the towing company

4 acted at the direction of the police with no reason to suspect that doing so was

5 constitutionally improper, the towing company was entitled to a good faith defense. Id.;

6 see also Tarantino v. Syputo, No. C 03-03450 MHP, 2006 WL 1530030, at *10 (N.D. Cal.

7 June 2, 2006), aff’d sub nom. Tarantino v. Syputa, 270 F. App’x 675 (9th Cir. 2008)

8 (concluding that towing company defendants were “entitled to assert a defense to liability

9 based on their good faith belief that they were towing plaintiff’s vehicle in compliance

10 with a valid order by city officials.”).

11 iv. Towing

12 Here, the undisputed facts show that the AutoReturn Defendants “acted solely at the

13 behest of the [C]ity defendants” in towing Plaintiffs’ vehicle. See Tarantino, 2006 WL

14 1530030, at *9. It is undisputed that the AutoReturn Defendants acted on instructions

15 from the city officials that called for the tow. AutoReturn received a tow request from a

16 SFMTA parking enforcement member, and, upon arrival, SFMTA gave the tow truck

17 driver a tow slip. Deir Decl. ¶¶ 3–4, Ex. A. It is further undisputed that the tow slip cited

18 San Francisco Transportation Code 7.2.46 as the reason for the tow. Id. (TRC 7.2.46

19 “relates to parking in a posted construction zone.”). The AutoReturn Defendants acted in

20 accordance with the City’s towing requirements, as outlined in their contract, which

21 required participating towing companies to respond promptly to calls for service. Deir

22 Decl. ¶ 2, Ex. A, Second Amended Contract, Article 2.2 (AutoReturn “shall dispatch Tow

23 Truck Operators (TTOs) from Central Dispatch upon request.”). Like the towing company

24 in Clement, the AutoReturn Defendants acted at the direction of the City Defendants and

25 had no reason to believe that towing the vehicle implicated Plaintiffs’ Fourth Amendment

26 rights. See 518 F.3d at 1096–97. The SFMTA officer gave AutoReturn a tow slip that

27 said the reason for the tow was parking in a construction zone, Deir Decl. ¶ 4, Ex. B (tow

1 Additionally, at the time the AutoReturn Defendants arrived, the vehicle was parked in a

2 construction zone with “No Stopping” signs.11 Id. In light of this, a reasonable person in

3 AutoReturn’s position could have believed that towing the vehicle under such

4 circumstances was lawful, and the AutoReturn Defendants had no reason to question the

5 validity of the tow.

6 Further, the alleged constitutional defect—lack of notice—could not have been

7 observed by the AutoReturn Defendants’ towing company at the time they conducted the

8 tow because at that point, the SFMTA staff member handed the tow truck driver a tow slip,

9 Deir Decl. ¶ 4, Ex. B, the “No Stopping” signs were clearly posted, Bey Decl. Ex. D, and

10 the area was visibly a construction zone, Rosenbaum Decl. Ex. A at 78:2–4 (“A: Yes.

11 When the tow truck driver got there, he sees a parking sign there, and so he feels valid in

12 what he [is] doing by taking the car away.”), 78:14–18; 81:18–21.

13 Plaintiffs have provided no basis for questioning the AutoReturn Defendants’

14 evidence in support of their assertion of subjective good faith. Thus, there is no material

15 dispute that the AutoReturn Defendants acted in subjective good faith in towing Plaintiffs’

16 vehicle.

17 v. Storing

18 For similar reasons, the Court also concludes that the undisputed facts show that the

19 AutoReturn Defendants acted in good faith in storing Plaintiffs’ vehicles. Like the towing

20 company in Clement, the AutoReturn Defendants “did [their] best to follow the law and

21 had no reason to suspect that there would be a constitutional challenge to its actions.” See

22 518 F.3d at 1097. Once the vehicle was towed and impounded, the AutoReturn

23

24

11 Plaintiffs argue that whether the “No Stopping” signs were posted at the time that

25 Plaintiff Bey parked the vehicle is a material fact in dispute. Pl. Mot. 15–16. However,

this fact is immaterial to Plaintiffs’ Fourth Amendment claim against the AutoReturn

26 Defendants because application of the good faith defense turns on the AutoReturn

Defendants’ subjective good faith. Franklin v. Fox, No. C 97–2443, 2001 WL 114438, at

27 *3–*4 (N.D. Cal. Jan. 22, 2001); accord Clement, 518 F.3d at 1097 (looking to the

defendant’s subjective good faith). Here, it is undisputed that the “No Stopping” sign was

1 Defendants were required to store the vehicle and AutoReturn employees were prohibited

2 from releasing the vehicle to Plaintiffs until they provided proof of the vehicle’s

3 registration. See Deir Decl. Ex. A, at J.4. (“Towed vehicles shall be released . . . from

4 impoundment in accordance with the California Vehicle Code”); id. Ex. A at J.5.c. (“The

5 Contractor shall verify that the requested vehicle is registered as defined by California law

6 by reviewing registration tag”); Deir Decl. ¶ 6 (“AutoReturn was required to store [the

7 vehicle] and . . . was prohibited from releasing the vehicle to the owners without proof of

8 ownership and registration. The vehicle owners never provided proof of registration”);

9 California Vehicle Code section 22850.3 (“A vehicle placed in storage pursuant to Section

10 22850 shall be released to the owner” only if the owner provides “satisfactory proof of

11 current vehicle registration.”); California Vehicle Code sections 4000, et seq. (“A person

12 shall not drive [or] move . . . any motor vehicle . . . unless it is registered and the

13 appropriate fees have been paid . . .”).

14 Plaintiffs have not provided a basis for questioning the AutoReturn Defendants’

15 evidence in support of their claim of subjective good faith. Plaintiffs argue that the

16 AutoReturn Defendants acted in bad faith in storing the vehicle because on April 20, 2020,

17 Plaintiffs emailed Mr. Scanlan photographs of the tow and AutoReturn “continued to keep

18 the [vehicle] under the false pretense that the tow was valid under law.” Pl. Mot. at 10.

19 However, as described supra, the Court concludes that the AutoReturn Defendants acted in

20 subjective good faith in towing Plaintiffs’ vehicle, and once towed, the AutoReturn

21 Defendants believed in good faith that they could not release the vehicle absent proof of

22 the vehicle’s registration. See California Vehicle Code section 22850. Plaintiffs never

23 presented such proof. Deir Decl. ¶ 6.

24 Because there are no genuine issues of material fact underlying the AutoReturn

25 Defendants’ good faith defense, the Court GRANTS summary judgment for the

26 AutoReturn Defendants on the Fourth Amendment claim.

27 b. Community Caretaker Doctrine

1 under the community caretaking exception to the Fourth Amendment, which authorizes

2 peace officers to “impound vehicles that jeopardize public safety and the efficient

3 movement of vehicular traffic.” AutoReturn MSJ at 9. The Court agrees.

4 Police officers may, in their “community caretaking” function, seize and impound

5 vehicles that are impeding traffic or threatening public safety and convenience. South

6 Dakota v. Opperman, 428 U.S. 364, 369 (1976). The Supreme Court has provided two

7 examples that would justify the community caretaking function: (1) vehicles disabled or

8 damaged in an accident; and (2) vehicles in violation of parking ordinances, thereby

9 jeopardizing “both the public safety and the efficient movement of vehicular traffic.”

10 Opperman, 428 U.S. at 368–69; see also Miranda v. City of Cornelius, 429 F.3d 858, 866

11 (9th Cir. 2005) (“The purpose of the community caretaking function is to remove vehicles

12 that are presently impeding traffic or creating a hazard.”). “Whether an impoundment is

13 warranted under this community caretaking doctrine depends on the location of the vehicle

14 and the police officers’ duty to prevent it from creating a hazard to other drivers or being a

15 target for vandalism or theft.” Miranda, 429 F.3d at 864. In assessing whether the

16 vehicle’s seizure is justified under the community caretaker doctrine, courts “must

17 examine whether th[e] seizure is reasonable based on all of the facts presented.” Id.

18 The AutoReturn Defendants contend that Plaintiffs’ “vehicle posed a hazard to

19 community safety at the time it was seized and the vehicle itself could have been

20 damaged.” AutoReturn MSJ at 9. It is undisputed that Plaintiffs’ vehicle was parked on a

21 public street, in an area that was actively undergoing construction at the time of the tow.

22 Kwan Decl. Ex. 1 at 19:10–11, 25:17–26:6, referencing Ex. 4 to Pl. Bey’s deposition; id. at

23 81:18–24 (“Q: [W]hen the tow truck driver arrives at the scene, does he see a construction

24 zone? . . . A: Oh, yeah. It was like a movie set.”). It is further undisputed that when the

25 AutoReturn Defendants arrived at the scene, the vehicle was “already ticketed [and] it was

26 clearly parked in an area that was actively preparing for or undergoing construction.”

27 AutoReturn MSJ at 9; Bey Decl. Ex. D (images of the vehicle in a construction zone);

1 Plaintiffs contend that the community caretaking rationale does not apply because

2 there were no “No Parking” signs at the time that Plaintiffs parked their vehicle. Pl. Mot.

3 at 4. However, this is immaterial to the inquiry because it has no bearing on whether the

4 vehicle posed a hazard to the community at the time it was seized. This Court must, as

5 noted above, consider the location of the vehicle and the police officer’s duty to prevent it

6 from creating a hazard to others. Here, the AutoReturn Defendants offer evidence that the

7 vehicle was parked on Ellis Street near Powell Street—an area covered by PG&E’s

8 occupancy permit. Kwan Decl. Ex. 1 at 19:10–11, 25:17–26:6, referencing Ex. 4 to Pl.

9 Bey’s deposition. Additionally, despite arguing that there is no evidence that the vehicle

10 “was blocking the movement of cars or other equipment on the public street,” Pl. Mot. at 4,

11 Plaintiffs presented evidence that their vehicle was in fact parked in a construction zone at

12 the time it was towed, Bey Decl. Exs. A–F. Under these circumstances, Plaintiffs’ vehicle

13 was creating an impediment to traffic and threatening public safety. An officer may

14 reasonably order an impoundment in a situation where the location of the vehicle creates

15 the need for the police to protect the vehicle or to avoid a hazard to the community.

16 Thus, the undisputed evidence establishes that the AutoReturn Defendants’ seizure

17 of Plaintiffs’ vehicle was permissible under the community caretaking doctrine.

18 Based on the good faith defense and the community caretaking doctrine, the

19 AutoReturn Defendants prevail on the Fourth Amendment claim. The Court therefore

20 GRANTS the AutoReturn Defendants’ motion for summary judgment.

21 2. Eighth Amendment

22 Plaintiffs’ Eighth Amendment claim against the AutoReturn Defendants is that they

23 charged Plaintiffs an “excessive fine and penalty” in violation of the Eighth Amendment.

24 Pl. Mot. at 17. The AutoReturn Defendants assert that they are entitled to summary

25 judgment on the Eighth Amendment claim because they acted on their good faith belief

26 that their actions were constitutional. AutoReturn MSJ at 7–8; AutoReturn Reply at 7–10.

27 For the same reasons discussed above, the Court concludes that the AutoReturn

1 || no dispute that the AutoReturn Defendants acted pursuant to their contract with CCSF, and

2 || “merely passe[d] through the fees that the City sets and charges,” and that they “never had

3 || any reason to question the constitutionality or legality of the fees.” Deir Decl. {7 and Ex.

4 || A (Schedule of Fees). As to the $23,340.50 fee, the AutoReturn Defendants’ evidence

5 || shows that they: (1) believed in good faith that the fees were constitutional, see Deir Decl.

6 || 97, and (2) never charged the $23,340.50 fee, nor would they have “collect[ed] fees in

7 || excess of the legal [60-day] maximum,” id. § 9. Plaintiffs have provided no basis for

8 || questioning the AutoReturn Defendants’ evidence in support of their claim of subjective

9 || good faith.'?

10 Because there are no genuine issues of material fact underlying the AutoReturn

11 || Defendants’ good faith defense, the Court GRANTS summary judgment for the

= 12 || AutoReturn Defendants on the Eighth Amendment claim.

13 Iv. CONCLUSION

C 14 For the foregoing reasons, the Court GRANTS Defendants’ motions as to all claims

3 15 || and DENIES Plaintiffs’ cross-motion.

16 IT ISSO ORDERED. ¢ kK

5 17 Dated: April 25_, 2024

CHARLES R. BREYER

18 United States District Judge

19

20

21

22

23

24

25

% '? Plaintiffs offer no evidence other than AutoReturn’s website, Bey Decl. Ex. L (showing

a total fee of $20,033.00), and Plaintiff Bey’s declaration in which he states that he “do[es]

27 || Tyofendants show that the fee listed on their website wns inaccurate, Deiz Deel. 48.9, and

2g || submit evidence that they would have accounted for the 60-day storage fee limitif

Plaintiffs had called to inquire about the payment, id. J 9.