Pyne v. Meese

Here, defendants DMV, State of California, and Meese insist they are not necessarily raising an Eleventh Amendment defense but are instead relying on the defense that the State and DMV are not “persons” under section 1983. (See, e.g., Familias Unidas v. Briscoe (5th Cir. 1980) 619 F.2d 391 , 404-405; Garrett v. State of Ill. (7th Cir. 1980) 612 F.2d 1038 , 1040; Louis v. Supreme Court of Nevada (D.Nev. 1980) 490 F.Supp. 1174 , 1180; Highfield Water Co. v. Public Service Com’n. (D.Md. 1980) 488 F.Supp. 1176 , 1194; Bailey v. Ohio State University (S.D.Ohio 1980) 487 F.Supp. 601 , 603.) Upon reading these cases, one might conclude the questions of whether a state is immune from suit because of the Eleventh Amendment or whether it is immune because it is not a “person” are one and the same, i.e., a state is not a “person” under section 1983 because of the Eleventh Amendment. However, this is not necessarily so.

One case observed “two traditional obstacles to suing states in federal courts under 42 U.S.C. § 1983 ; (1) The eleventh amendment bar against suing states in federal courts; and (2) judicial interpretations of § 1983 holding that states are not ‘persons’ within the meaning of the statute.” (Fn. omitted; Verner v. State of Colo. (D.Colo. 1982) 533 F.Supp. 1109 , 1113.) Although a number of cases have held that states and political subdivisions may be sued as “persons” under section 1983 (see, e.g., Marrapese v. State of R.I. (D.R.I. 1980) 500 F.Supp. 1207 , 1212; Atchison v. Nelson (D.Wyo. 1978) 460 F.Supp. 1102 , 1106-1107; R.I. Affiliate Am. Civ. Liberties Union v. R.I. Lottery Com. (D.R.I. 1982) 553 F.Supp. 752 , 767; Smith v. State (1983) 122 Mich.App. 340 [ 333 N.W.2d 50 , 55]), they have done so either by reason of statutory waiver of their Eleventh Amendment immunity or because of an express waiver. The bar of the Eleventh Amendment has not been eroded. (See, e.g., Marrapese v. State of R.I., supra, 500 F.Supp. at p. 1212.)

Moreover, this court has previously concluded that a state is not a “person” under section 1983 and we find no reason to reject that holding or reasoning. (Taylor v. Mitzel (1978) 82 Cal.App.3d 665 , 670 [ 147 Cal.Rptr. 323 ]; see also Mezey v. State of California (1984) 161 Cal.App.3d 1060 , 1065 [ 208 Cal.Rptr. 40 ].)

As stated earlier, the thrust of plaintiffs’ complaint is that the DMV, through its agents, wrongly attempted to collect registration fees upon vehicles which were not subject to such fees because they were not being operated on public highways. Plaintiffs argue that had the DMV properly investigated the matter, this incident would not have occurred. They allege the restriction of their movements and the taking of their money deprived them of life, liberty, and property without due process of law.

pletely valid based upon information made available to the DMV and were justified in carrying out their duties. Although a deprivation may have taken place, it was not without due process of law, thus no cause of action under section 1983 exists.

Nor did the DMV or its agents violate the Fourth Amendment. The Fourth Amendment protects against unreasonable searches and seizures. The entry onto plaintiffs’ property and the “seizure” of the vehicles in lieu of the fees were made according to law.

Plaintiffs also contend the trial court erred in awarding defendants State, DMV, and Meese attorney fees. The court granted the motions for summary judgment by the State and the DMV on the basis of the cases which estáblish that those entities are not amenable to suit under section 1983, and the motion of Meese because he was not the Director of the DMV at the time of the attempted seizure. The court found the inclusion of these defendants in the action “is so clearly contrary to the established law in this matter that it can only be characterized as frivolous and in bad faith” and awarded those parties attorney fees under Code of Civil Procedure section 128.5. We agree with the trial court the order for an award of fees to the State, DMV, and Meese was proper.

Code of Civil Procedure section 128.5 allows a court to award expenses, including attorney fees, incurred by another party as the result of tactics or actions not based on good faith which are frivolous or cause unnecessary delay.

Plaintiffs also argue agents Black and Hurd are liable under section 1983 because they acted with blind disregard to the fact the vehicles were inoperable, failed to follow DMV policies, and illegally entered their property.

Recently, the Supreme Court set forth the test for determining whether a qualified or good faith immunity exists for public officials. The qualified immunity acts as a buffer between true abuses by public officials and insubstantial lawsuits which must be quickly terminated. (Harlow v. Fitzgerald (1982) 457 U.S. 800 , 814 [ 73 L.Ed.2d 396 , 407-408, 102 S.Ct. 2727 ].) In Harlow, the court rejected the element of subjective good faith as part of the test and instead concluded “that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” (457 U.S. at pp. 817-818 [73 L.Ed.2d at p. 410].)

Applying this test to the facts before us, we conclude Hurd and Black are shielded by qualified immunity. As discussed earlier, the DMV issued the seizure order after following procedures which fully protected plaintiffs’ right to due process of law. Hurd and Black were justified in believing the vehicles were being operated on public highways and thus subject to registration fees, because of plaintiffs’ actions. Plaintiffs did not deny the fees were due; they only protested the method of payment required by the DMV. It is unclear from the depositions and declarations what condition the vehicles were in when Hurd and Black arrived at plaintiffs’ residence. While it is true that at the time seizure order was executed, plaintiffs informed the agents the vehicles were inoperative, and Black, in reviewing the file, noticed the issue of operability had not been raised at the hearing, the fact remains Black and Hurd had a valid seizure order and were justified in enforcing it. Mr. Richard Taylor of the DMV stated it was department policy to act solely on the order. The order authorizes field agents to enter private property and seize a vehicle upon which fees have not been paid. Since due process is followed prior to the order being issued, there is nothing inherently unconstitutional about this policy. Under the Harlow test, Black and Hurd did not violate any clearly established statutory or constitutional rights and are thus immune from liability. At worst, perhaps their behavior might have been offensive to plaintiffs but did not rise to constitutional dimensions.

County of Siskiyou, Sheriff Laurence “Bud” Taylor

Plaintiffs contend Sheriff Taylor created a departmental policy which resulted in the deprivation of their constitutional rights. Presumably, the county was charged with liability as the employer of Sheriff Taylor, and with having developed or established the allegedly offensive policy. A local government cannot be liable in a section 1983 action on a theory of respondeat superior, but only if the execution of the government’s policy or custom results in injury. (Monell v. New York Dept. of Soc. Serv., supra, 436 U.S. at p. 694 [56 L.Ed.2d at p. 638].)

In their complaint, plaintiffs allege Sheriff Taylor created a departmental policy which resulted in the violation of their rights. Yet, when deposed, plaintiffs were unable to identify the alleged policy. In his deposition, plaintiff Pollard stated he knew of no specific policy and merely concluded that since a sheriff’s deputy was at the scene, the department must have a policy of condoning unconstitutional behavior.

Recently, the Supreme Court further clarified the definition of a “policy” for purposes of municipal liability under section 1983. In Oklahoma City v.

Tuttle (1985) — U.S. — [ 85 L.Ed.2d 791 , 105 S.Ct. 2427 ], the plaintiff’s husband was shot and killed outside a bar in which a robbery had been reported in progress. The plaintiff’s theory of liability on behalf of the city was that the city had a “policy” of training officers, and that this “policy” resulted in inadequate training and ultimately a constitutional violation. The court recognized the “policy” relied on was far more nebulous than that relied upon in Monell, supra, (policy compelling pregnant employees to take mandatory leave before required to do so for medical reasons), and stated, “To establish the constitutional violation in Monell no evidence was needed other than a statement of the policy by the municipal corporation, and its exercise; but the type of ‘policy’ upon which respondent relies, and its causal relation to the alleged constitutional violation, are not susceptible to such easy proof. In the first place, the word ‘policy’ generally implies a course of action consciously chosen from among various alternatives; it is therefore difficult in one sense even to accept the submission that someone pursues a ‘policy’ of ‘inadequate training,’ unless evidence be adduced which proves that the inadequacies resulted from conscious choice—that is, proof that the policymakers deliberately chose a training program which would prove inadequate. And in the second place, some limitation must be placed on establishing municipal liability through policies that are not themselves unconstitutional, or the test set out in Monell will become a dead letter. Obviously, if one retreats far enough from a constitutional violation some municipal ‘policy’ can be identified behind almpst any such harm inflicted by a municipal official; for example, Rotramel would never have killed Tuttle if Oklahoma City did not have a ‘policy’ of establishing a police force. But Monell must be taken to require proof of a city policy different in kind from this latter example before a claim can be sent to a jury on the theory that a particular violation was ‘caused’ by the municipal ‘policy.’ At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged.” (Fn. omitted; id., at p. — [85 L.Ed.2d at pp. 803-804].)

Plaintiffs have failed to establish such a link.

The only “policy” being followed by the sheriff’s department was that of keeping the peace. The sheriff (and his deputies) are charged by law with preserving the peace and suppressing any affrays, breaches of peace, riots, or insurrections. (Gov. Code, §§ 26600, 26602.) Captain Jordan of the sheriff’s department testified the request from Black and Hurd for law enforcement assistance was considered a routine call. Such a call is common and based upon Government Code section 26600, the sheriff’s department will provide peacekeeping assistance to any person or agency who requests it. In fact, the provision of such services is not, per se, a departmental policy, and is no different than responding to a burglary call, for instance.

In the absence of a showing of any policy which violated plaintiffs’ rights, summary judgment was properly granted. (Villa v. Franzen (N.D.Ill. 1981) 511 F.Supp. 231 , 235.)

Sheriff Taylor cannot be held liable unless he personally acted tortiously. (Milton v. Nelson (9th Cir. 1975) 527 F.2d 1158 , 1159; Baskin v. Parker (5th Cir. 1979) 602 F.2d 1205 , 1208 [ 51 A.L.R.Fed. 269 ].) Sheriff Taylor did not know of the underlying events until they had taken place. He became aware of the incident only through reports and a visit from plaintiffs. Captain Jordan, who assigned Deputy Samples to accompany Hurd and Black, saw the seizure order and believed it to be valid. Plaintiffs stated Deputy Samples made no threats, was not rude, acted “like a gentleman,” and did his job in keeping the peace.

Neither the County of Siskiyou nor its employees in any way violated a constitutional right. Deputy Samples performed his duty as required by law, and by plaintiffs’ own admission did so in an admirable manner.

The trial court awarded the county and Sheriff Taylor attorney fees under 42 United States Code section 1988, as the prevailing parties. The court also found the inclusion of these parties to be frivolous under the circumstances. Section 1988 allows the court, in its discretion, to award attorney fees to the prevailing party. An award of fees under this section will not be disturbed on appeal absent an abuse of that discretion. (O’Neil v. City of Lake Oswego (9th Cir. 1981) 642 F.2d 367 , 370.) We find no abuse here. Plaintiffs claimed a departmental policy violated their rights but were unable to identify such a policy. The county defendants were acting within the law and were fully justified in their actions, which really amounted to no more than being at the scene.

City of Etna, Chief David Bradford (Etna Police Department)

Plaintiffs argue the evidence showed Chief Bradford acted in bad faith and actively engaged in depriving plaintiffs of their constitutional protections. Plaintiffs correctly point to several conflicting factual allegations, but as we shall discuss, they are of no import because of the lack of an underlying constitutional violation.

Penal Code section 830.1 extends the jurisdiction of various law enforcement officers, including police officers, to any place in the state where the officer has obtained the prior consent of the sheriff if such place is outside city limits. (Pen. Code, § 830.1, subd. (a)(2).) A copy of an agreement between the City of Etna Police Department and the Sheriff of Siskiyou County, conferring such consent, was submitted with the moving papers.

Plaintiffs object to the admission of the agreement for the first time on appeal, arguing it violates the best evidence rule. (Evid. Code, 1500.) The argument fails for two reasons. First, the copy of the document was merely cumulative, as Chief Bradford stated in his declaration he had obtained consent pursuant to Penal Code section 830.1 to conduct official acts outside the Etna city limits. Second, Evidence Code section 1530, subdivision (a)(1), permits a copy of a writing in the custody of a public entity to be admitted if the copy purports to be published by the authority of the public entity therein in which the writing is kept. The copy of the agreement is attached to Bradford’s declaration, wherein he states it is a true and correct copy. The document on its face appears to be published by a public entity, the Siskiyou County Sheriff’s office. The requirements of Evidence Code section 1530, subdivision (a)(1), were satisfied. (People v. Abelson (1980) 104 Cal.App.3d Supp. 16 , 19 [ 164 Cal.Rptr. 369 ].)

Once again, we must apply the Harlow test to determine whether a qualified immunity exists. Plaintiffs argue the qualified immunity is not available to Bradford because the evidence shows he did not possess a subjective good faith belief. They rely upon two cases, both of which were decided prior to Harlow, which eliminated the subjective element of the qualified immunity test. (457 U.S. at pp. 815-817 [73 L.Ed.2d at pp. 408-410].)

Bradford was on the scene to keep the peace. As plaintiffs concede, “a perfectly legitimate reason” existed for Bradford to be on their property, as Vehicle Code section 9801, subdivision (h), provides for municipal law enforcement agencies to assist with a seizure. We do not condone Bradford’s behavior. The overall impression left by the record is that Bradford acted with arrogance and self-importance, and apparently has little tolerance for those holding alternative beliefs. Deputy Samples, who has no reason not to tell the truth, stated Bradford volunteered to go along with Samples. Bradford and Samples share an office, and Samples mentioned the mission to Bradford at city hall when the call came in. Samples had been to plaintiffs’ residence before and knew how to get there. In his deposition and declaration signed under penalty of perjury, Bradford stated Samples requested his assistance because he (Samples) did not know where plaintiffs lived. He stated he was contacted at home, by telephone. Once at the plaintiffs’ residence, Bradford stood in front of plaintiffs’ tractor to prevent them from moving it, and implied to plaintiff Pollard he might be interfering with a police officer carrying out his duties. It is interesting that Deputy Samples, who originally received the call and was thus the primary officer to oversee that peace was kept, did not find it necessary to take any aggressive steps and was polite at all times to plaintiffs. However, rudeness and arrogance alone do not violate the Constitution. Bradford was justified in being at the

scene, since Black and Hurd were enforcing a valid seizure order. (Veh. Code, § 9801, subd. (h).) Plaintiffs’ cause of action against these defendants fails as a matter of law for want of a constitutional violation. (See Harris v. City of Roseburg (9th Cir. 1981) 664 F.2d 1121 , 1127-1129 [ 65 A.L.R.Fed. 792 ].)

Plaintiffs have not alleged that any policy of the City of Etna deprived them of constitutional protections. The motion of summary judgment on behalf of Bradford and the city was properly granted.

The judgments are affirmed. Defendant City of Etna and David Bradford’s request for an award of attorney fees on appeal is denied.

Carr, J., and Sparks, J., concurred.