Case Information
*1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BRIAN HOFER, et al., Case No.19-cv-02205-JSC Plaintiffs, ORDER RE: DEFENDANT v. GETAROUND, INC.’S MOTION TO COMPEL ARBITRATION AND KYLE EMLEY, et al., DISMISS OR STAY LITIGATION; DEFENDANTS’ MOTIONS TO Defendants. DISMISS
(collectively, “Contra Costa Defendants”), Getaround, Inc. (“Getaround”), and Vigilant Solutions, LLC (“Vigilant”), alleging civil rights violations and state law tort claims arising out of a Contra Costa (“the County”) and Deputy Sheriffs Kyle Emley, Brandon Gant, and William Odom Now before the Court are Getaround’s motion to [2] (Dkt. No. 38.) [1] November 2018 traffic stop. compel arbitration and dismiss or stay litigation, (Dkt. No. 17), Contra Costa Defendants’ motion Brian Hofer and Jonathan Hofer sue City of San Jose (“San Jose” or “the City”), County of Re: Dkt. Nos. 17, 43, 45, 46 to dismiss, (Dkt. No. 43), San Jose’s motion to dismiss, (Dkt. No. 45), and Vigilant’s motion to dismiss, (Dkt. No. 46). After careful consideration of the parties’ briefing, and having had the benefit of oral argument on September 12, 2019, the Court: GRANTS Getaround’s motion to compel arbitration and STAYS this action as to Getaround; GRANTS in part and DENIES in part Contra Costa Defendants’ motion to dismiss; GRANTS San Jose’s motion to dismiss; and GRANTS Vigilant’s motion to dismiss.
//
BACKGROUND
I. The Parties
A. Plaintiffs
Plaintiffs Brian Hofer (“Brian”) and Jonathan Hofer (“Jonathan”) are brothers. (Dkt. No. 38 at ¶ 15.) They both reside in Oakland, California. ( Id. at ¶¶ 2-3.) Brian is “a surveillance reform activist and Chair of the City of Oakland’s Privacy Commission.” ( Id. at ¶ 31.)
B. Defendants
The County is a municipality that “owns, operates, manages, directs, and controls the Contra Costa County Sheriff’s Office,” which employed Deputy Sheriffs Kyle Emley, Brandon Gant, and William Odom “at all times relevant to this action.” ( Id. at ¶ 8.) San Jose is a municipality that administers the San Jose Police Department (“SJPD”). ( Id. at ¶ 9.) Getaround “is a car sharing platform” that facilitates car rentals between “private vehicle owners” and “other private parties.” ( Id. at ¶ 11.) “Getaround also provides its own vehicles to the platform for rental by private parties.” ( Id. ) Vigilant manufactures an automated license plate reader (“ALPR”) used by the Contra Costa County Sheriff’s Office. ( Id. at ¶ 10.) II. Complaint Allegations Brian rented a Getaround-owned car from Getaround on November 21, 2018 to travel with Jonathan “to visit family for the Thanksgiving holiday.” ( Id. at ¶¶ 11, 15.) On November 25, 2018, Plaintiffs were returning to Oakland in the rental car when they were stopped near San Pablo, California by Contra Costa Sheriff’s Deputy Brandon Gant, who had tailed Plaintiffs “for a period of time” before turning on his overhead lights and directing Plaintiffs “over the loudspeaker to exit the freeway.” ( Id. at ¶ 16.) Plaintiffs complied and pulled into a shopping center. ( Id. at ¶ 17.)
Contra Costa Sheriff’s Deputies Kyle Emley and William Odom then arrived on the scene; their vehicles “surrounded” Plaintiffs’ car. ( Id. at ¶ 18.) Deputy Gant directed the driver, Brian, to exit the vehicle, “place his hands behind his head, and walk backwards towards the sound of [Deputy] Gant’s voice.” ( Id. at ¶ 23.) Brian noticed that Deputies Emley and Gant had their guns drawn and pointed at him. ( ) Brian complied with all of Deputy Gant’s instructions. ( Id. at ¶¶ *3 20-24.) Deputy Gant handcuffed Brian and placed him in the back of Deputy Gant’s vehicle. (Dkt. No. 38 at ¶¶ 24-25.) Before doing so, Deputy Gant did not check Brian’s identification or ask him any questions about the rental car. ( Id. at ¶ 24.)
Deputies Emley and Gant then directed Jonathan to exit Plaintiffs’ car “in a similar manner as Brian.” ( Id. at ¶ 26.) Brian noticed that the three deputies “all had their guns drawn and pointed at Jonathan.” ( Id. ) “Jonathan complied with the officers’ directions, walking backwards slowly and non-threateningly towards [Deputy] Emley.” ( Id. at ¶ 27.) Deputy Emley then screamed at Jonathan and pushed him to his knees. ( Id. at ¶ 28.) Deputy Emley pointed his gun at the back of Jonathan’s head and then injured Jonathan by slamming him “forward to the ground.” ( Id. ) Deputy Emley handcuffed Jonathan and placed him in the back of Deputy Emley’s vehicle. ( Id. at ¶ 29.) While seated in the back of Deputy Gant’s vehicle, Brian “noticed a Vigilant screen” on the vehicle’s computer. ( Id. at ¶ 31.) None of the deputies made an “attempt to identify Brian or Jonathan, or to communicate any information about why they were [being detained].” ( Id. at ¶ 30.) The deputies searched the rental car, opened the trunk, and Deputy Gant “unzipped the suitcases in the trunk and examined the contents of the luggage.” ( Id. at ¶ 32.) Plaintiffs did not consent to the warrantless searches. ( Id. at ¶ 33.) After searching the rental car and Plaintiffs’ luggage, Deputy Gant asked for and obtained Brian’s identification, and Deputy Emley did the same regarding Jonathan’s identification. ( Id. at ¶¶ 34-35.) Deputy Gant “presumably called dispatch” to check Brian’s identification, and then Deputy Gant stated to Brian that “the ALPR registered the car’s license plate as a ‘hit’ against a stolen vehicle ‘hot list.’” ( Id. at ¶¶ 34, 36.) “Brian explained that he had rented the car from Getaround, which presumably would not have rented him a stolen vehicle.” ( Id. at ¶ 37.) Deputy Gant asked Brian for the rental agreement, and Brian explained “that he booked the rental through an application on his smartphone, which was still in the [rental car].” ( Id. ) Deputy Gant retrieved Brian’s phone and “demand[ed] the passcode.” ( Id. at ¶ 38.) Brian initially refused to provide the code and asked instead “to enter it himself.” ( Id. ) Deputy Gant denied Brian’s request and told Brian that he “had ‘no choice’” but to give Deputy Gant the code. ( ) Brian “reluctantly” *4 complied. (Dkt. No. 38 at ¶ 38.) “Neither [Deputy] Gant nor the other officers on the scene had a warrant to search Brian’s phone.” ( Id. at ¶ 39.) Further, none of the Deputies intervened “to stop the other officers’ excessive use of force or illegal searches.” ( Id. at ¶ 47.)
Brian directed Deputy Gant to the Getaround application, which “showed an active car rental.” ( Id. at ¶ 40.) Deputy Gant took Brian’s unlocked phone and “talk[ed] to the other officers” before calling Getaround. ( Id. at ¶¶ 40-41.) “Getaround confirmed to [Deputy] Gant that Brian had rented the car as he claimed.” ( Id. at ¶ 41.)
Deputies Gant and Emley then removed Brian and Jonathan from the deputies’ respective vehicles and “took off [Plaintiffs’] handcuffs.” ( Id. at ¶ 42.) Deputy Gant did not allow Plaintiffs to leave the scene, however, because “he was waiting on his supervisor, Doe 1, to bring some paperwork.” ( Id. at ¶ 44.) Deputy Gant’s supervisor asked Brian to sign a form “acknowledging that he had been detained for longer than 15 minutes.” ( Id. at ¶ 45.) The supervisor did not present a similar form to Jonathan. ( Id. ) Plaintiffs left the scene “and returned the vehicle to the Getaround lot in Oakland.” ( Id. at ¶ 48.) Thereafter, Plaintiffs “timely and properly filed government code claims against the County and San Jose pursuant to California Government Code § 910 et seq .” ( Id. at ¶ 49.) III. The Stolen Vehicle Report On October 20, 2018, prior to Brian Hofer’s rental, the subject rental car was reported as stolen. ( Id. at ¶ 54.) SJPD put the rental car “on a list of stolen vehicles, such that an alert was apparently sen[t] to police agencies and APLR vendors like Vigilant.” ( Id. ) The rental car was subsequently recovered and SJPD “apparently received some information provided on behalf of Getaround [3] by text and telephone from someone requesting an incident report number that the car *5 was either not, in fact, stolen or had been returned.” (Dkt. No. 38 at ¶ 55.) Despite being notified that the car was not stolen or had been recovered, SJPD “failed to remove the car from the list of stolen vehicles,” or alternatively, “Vigilant failed to update its list of stolen vehicles,” and the car “remained in Vigilant’s database until at least November 25, 2018, when Brian and Jonathan were pulled over.” ( at ¶¶ 56, 63.)
IV. Procedural History
Plaintiffs filed their original complaint on April 24, 2019, bringing six causes of action against the same Defendants noted above arising out of the November 2018 traffic stop. ( See generally Dkt. No. 1.) Plaintiffs then filed an amended complaint on July 22, 2019, bringing the following seven claims: (1) 42 U.S.C. § 1983 for violation of the Fourth Amendment (against the County); (2) 42 U.S.C. § 1983 for violation of the Fourth Amendment (against Deputies Emley, Gant, and Odom, and Doe 1); (3) violation of California’s Bane Act, California Civil Code § 52.1, (against Contra Costa Defendants and Doe 1); (4) assault and battery (against Contra Costa Defendants); (5) false imprisonment (against Contra Costa Defendants); (6) intentional infliction of emotional distress (against Contra Costa Defendants); and (7) negligence (against Contra Costa Defendants, San Jose, Vigilant, Getaround, and Does 2-50). (Dkt. No. 38.) Getaround filed the instant motion to compel arbitration on July 10, 2019. (Dkt. No. 17.) The motion is fully briefed, ( see Dkt. Nos. 42 & 51). On August 5, 2019, Contra Costa Defendants, San Jose, and Vigilant filed their respective motions to dismiss the amended complaint. ( Dkt. Nos. 43, 45, 46.) The motions are fully briefed, ( see Dkt. Nos. 54-58, 60), and the Court heard oral argument on all motions on September 12, 2019.
MOTION TO COMPEL ARBITRATION
Getaround moves to compel arbitration of Plaintiffs’ negligence claim pursuant to the mandatory arbitration provision contained in Getaround’s Terms of Service (the “Agreement”) “consistent with ¶ 50” of the amended complaint, which alleges that “[c]ommunications and reporting among Defendants” regarding the rental car “are within the exclusive control of . . . Defendants,” and “[a]lthough some . . . Defendants have provided [Plaintiffs] limited information,” Plaintiffs cannot determine the “accuracy or completeness of that information at this time.” (Dkt. No. 38 at ¶¶ 50, 62.) *6 requiring “the use of arbitration on an individual basis to resolve disputes.” (Dkt. No. 22-4, Ex. B at 12, 29-30.) The arbitration provision states, in its entirety:
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. For any dispute with Company, you agree to first contact us at [email] and attempt to resolve the dispute with us informally. In the unlikely event that Getaround has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any Getaround claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) in City and County of San Francisco, California under the commercial rules then in effect for the AAA, except as provided herein . The award rendered by the arbitrator shall
include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Getaround from seeking injunctive or other equitable relief from the courts as necessary to protect any of Getaround’s proprietary interests.
(
Id.
at 30 (emphasis added).) The Agreement further provides that “any arbitration conducted
pursuant to the terms of [the Agreement] shall be governed by the Federal Arbitration Act (9
U.S.C. §§ 1-16).” ( at 29.)
I.
Legal Standard
The Federal Arbitration Act (“FAA”) provides that arbitration agreements “shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity for revocation of
any contract.” 9 U.S.C. § 2. Under the FAA, “arbitration agreements [are] on an equal footing
with other contracts,” and therefore courts must “enforce them according to their terms.”
Rent-A-
Center, West, Inc. v. Jackson
,
The United States Supreme Court recognizes a “liberal policy favoring arbitration
agreements.”
AT&T Mobility LLC v. Concepcion
,
A. Existence of a Valid Agreement that Covers the Dispute at Issue
Courts must apply state contract law in determining whether a valid agreement to arbitrate
exists.
Arthur Andersen LLP v. Carlisle
,
The Court addresses each argument in turn.
1.
The Arbitration Provision Applies to Nonsignatory Jonathan Hofer
As previously discussed, courts must look to “principles of state contract law” to determine
*9
whether a party has agreed to arbitrate.
See Carlisle
,
The doctrine of equitable estoppel “precludes a party from claiming the benefits of a
contract while simultaneously attempting to avoid the burdens the contract imposes.”
Comer
, 436
F.3d at 1101 (internal quotation marks and citation omitted);
see also Nguyen v. Barnes & Noble
Inc.
,
fall into two categories. In some cases, a nonsignatory was required
to arbitrate a claim because a benefit was conferred on the
nonsignatory as a result of the contract, making the nonsignatory a
third party beneficiary of the arbitration agreement. In other cases,
the nonsignatory was bound to arbitrate the dispute because a
preexisting relationship existed between the nonsignatory and one of
the parties to the arbitration agreement, making it equitable to compel
the nonsignatory to also be bound to arbitrate his or her claim.
Cty. of Contra Costa v. Kaiser Found. Health Plan, Inc.
,
Getaround asserts that the Agreement’s arbitration provision applies to Jonathan Hofer under a theory of direct benefits estoppel because he was a passenger in the rental car and as such, “received direct and substantial benefits from [Brian Hofer’s] rental . . . through the Getaround application” and Brian Hofer’s required consent to the Agreement’s terms. (Dkt. No. 51 at 9.) The parties cite no California case with similar facts (i.e., a nonsignatory passenger of a rental car *10 asserting the same claim as the signatory driver against the signatory rental car company), and the Court’s research reveals none. That said, the Court agrees that the doctrine of direct benefits estoppel applies and compels Jonathan Hofer to arbitrate his negligence claim against Getaround.
The complaint suggests that Jonathan Hofer was an active participant in renting the car,
and at the very least aware that his brother rented the car from Getaround. ( Dkt. No. 38 at ¶
15 (“Brian rented a car from Getaround so that he and his brother Jonathan could travel north to
visit family for the Thanksgiving holiday.
They
rented the car without incident.”) (emphasis
added).) Taking those allegations as true, Jonathan Hofer knowingly received a direct benefit as a
result of the Agreement—the ability to travel as a passenger in a rental car to visit family for
Thanksgiving. The benefit conferred on Jonathan is the exact benefit conferred on the signatory,
Brian Hofer; indeed, the ability to travel in a rental car is the
only
benefit conferred by the
Agreement. Thus, Jonathan Hofer as a nonsignatory knowingly received benefits flowing directly
from the Agreement.
See NORCAL Mut. Ins. Co. v. Newton
,
In sum, because Jonathan Hofer knowingly received a direct benefit from the Agreement
and seeks to exploit the benefits of the Agreement by alleging breach of a duty that arose from that
Agreement, the doctrine of direct benefits estoppel applies.
See NORCAL
,
The calculus might be different if Jonathan Hofer was a passive bystander injured as a
result of Getaround’s negligence and had no connection to Brian or Getaround and no knowledge
of the contractual relationship between the two that gave rise to the direct benefit Jonathan
received.
See Brown v. Comcast Corp.
, ED CV 16-00264-AB (SPx),
For similar reasons, Plaintiffs’ reliance on
Comer
fails to persuade. The plaintiff in
Comer
participated in “ERISA plans operated by [defendant] Micor, Inc.”
On appeal, Smith Barney argued that the plaintiff was “bound by the arbitration clauses” in part and as relevant here “as a matter of equitable estoppel.” Id. at 1101. The Ninth Circuit rejected that argument and affirmed the district court’s ruling. In doing so, the court noted that the “insurmountable hurdle for Smith Barney” was the lack of evidence that the plaintiff “knowingly exploit[ed] the agreement[s] containing the arbitration clause[s] despite never having signed the agreement[s].” Id. at 1102 (internal quotation marks and citation omitted) (alterations in original). The court explained:
Prior to his suit, Comer was simply a participant in trusts managed by others for his benefit. He did not seek to enforce the terms of the management agreements, nor otherwise to take advantage of them. Nor did he do so by bringing this lawsuit, which he bases entirely on ERISA, and not on the investment management agreements.
Id.
Thus, the court concluded that “Smith Barney’s attempt to shoehorn Comer’s status as a
passive participant in the plans into his knowing[ ] exploit[ation] of the investment management
agreements fails.” (internal quotation marks omitted) (alterations in original).
Unlike the plaintiff in
Comer
, however, Jonathan Hofer was not merely a “passive
participant” to the agreement at issue. (
See
Dkt. No. 38 at ¶ 15 (“Brian rented a car from
Getaround so that he and his brother Jonathan could travel north to visit family for the
Thanksgiving holiday.
They
rented the car without incident.”) (emphasis added).) Taking those
allegations as true, Jonathan Hofer had knowledge of the Agreement before receiving the benefit
that flowed directly from that Agreement. There are no similar facts in
Comer
. 278 F. Supp.
2d 1030, 1032 (N.D. Cal. 2003) (noting that plaintiff was a participant in the ERISA plans under
which he sued from 1994 to 2003 and the trustees for those plans entered into the agreements with
Smith Barney containing the arbitration provisions in 1999). Also unlike the plaintiff in
Comer
,
Jonathan Hofer seeks to knowingly exploit the benefits of the Agreement by alleging that
Getaround breached a duty that arose, at least in part, from the Agreement. (
See
Dkt. No. 38 at ¶
92 (alleging negligence because “Getaround breached its duty to update the San Jose police
*13
department that
the car it rented to Brian and Jonathan
was not stolen or had been returned”)
(emphasis added).) Conversely, the plaintiff’s suit in
Comer
was “base[d] entirely on [a fiduciary
duty owed under] ERISA, and not on the investment management agreements” containing the
arbitration provisions.
See
Accordingly, the Court concludes that the Agreement’s arbitration provision applies to Jonathan Hofer’s negligence claim against Getaround.
2. California Civil Code Section 1281.2(c) Does Not Apply California Civil Code Section 1281.2(c) provides that a court shall grant a petition to compel arbitration unless, among other things, it determines that:
A party to the arbitration agreement is also a party to a pending court
action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility
Cal. Code Civ. Proc. § 1281.2(c).
[6]
“Section 1281.2(c) addresses the peculiar situation that arises
when a controversy also affects claims by or against other parties not bound by the arbitration
circumstances.” agreement,” and “giv[es] the court discretion not to enforce the arbitration agreement under such
Mount Diablo Med. Ctr. v. Health Net of California, Inc.
,
*14
The FAA does not permit a court to decline to enforce a valid arbitration provision, even if
some claims arising from the same transaction or occurrence cannot be compelled to arbitration. 9
U.S.C. § 4. Under such circumstances the FAA “requires piecemeal resolution when necessary to
give effect to an arbitration agreement.”
Moses H. Cone
,
This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflicts of laws principles. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of [this Agreement] shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
(Dkt. No. 22-4, Ex. B at 29.) The Court disagrees that this provision evinces an intent to supplant the FAA. Both federal and state caselaw support application of the FAA over section 1281.2(c) because the choice of California substantive law without deference to California’s conflicts of laws principles does not demonstrate the parties’ intent to apply California rules governing arbitration instead of the FAA.
*15
In
Wolsey Ltd. v. Foodmaker, Inc.
, the Ninth Circuit addressed application of Section
1281.2(c) in similar circumstances and expressly rejected the same argument set forth by
Plaintiffs; specifically, that Section 1281.2(c) supplants the FAA based only on a “general choice-
of-law clause” stating that the contract “shall be interpreted and construed under the laws of the
State of California.”
See Wolsey Ltd. v. Foodmaker, Inc.
,
Plaintiffs’ citation to
Volt Info. Servs., Inc. v. Bd. of Trs. of Lelland Stanford Jr. Univ.
, 489
U.S. 468 (1989) does not counsel a different result. In
Volt
, the United States Supreme Court
reviewed a California Court of Appeal decision in which the appellate court held that Section
1281.2(c) applied to stay arbitration based on a choice-of-law provision in the parties’ agreement
“specifying that their contract would be governed by ‘the law of the place where the project is
located,’” which was California.
The
Volt
Court affirmed the appellate court’s ruling but in doing so did
not
rule on whether
the contract’s choice-of-law clause in fact incorporated California law governing arbitrations.
id.
at 474 (“[T]he interpretation of private contracts is ordinarily a question of state law, which this
Court does not sit to review.”);
see also Mastrobuono
,
The seminal California state court decision finding that Section 1281.2(c) applies and
supplants the FAA also supports application of the FAA in this case. In
Mount Diablo Med. Ctr.
v. Health Net of California, Inc.
, the defendant appealed the trial court’s denial of its motion to
compel arbitration, arguing that the agreement’s general choice-of-law provision did not evince
*17
the parties’ intent to arbitrate subject to the California Code of Civil Procedure. 101 Cal. App. 4th
at 714. The California Court of Appeal affirmed the trial court’s decision, and in doing so
distinguished cases where an agreement’s choice-of-law provision stated only that the agreement
“shall be governed by [state] law” with those like
Mount Diablo
where the agreement contained an
“explicit reference to enforcement [that] reasonably includes such matters as whether proceedings
to enforce the agreement shall occur in court or before an arbitrator.”
Id.
at 722-724
(distinguishing choice-of-law provisions stating only that the contract “shall be governed by the
laws of the State of New York” or “shall be interpreted and construed under the laws of the State
of California,” with the provision in
Mount Diablo
, which stated that the “validity, construction,
interpretation and enforcement of this [a]greement’ shall be governed by California law,” and
finding that the agreement’s “broad choice-of-law clause include[d] state law on the subject of
arbitrability”). Based on the language of the choice-of-law provision, and because the provision’s
incorporation of Section 1281.2(c) would not “conflict[ ] with the objectives of the FAA,” the
court “conclude[d] that the parties intended to incorporate California procedural law governing the
enforcement of their agreement to arbitrate” and as such, Section 1281.2(c) would apply and
supplant the FAA. at 714;
see also Cronus Invs., Inc. v. Concierge Servs.
,
Conversely here, the choice-of-law provision contains no such language regarding
“enforcement” of the Agreement; it instead includes the type of general choice-of-law provision
distinguished in
Mount Diablo
. Indeed, the provision clarifies that “[n]otwithstanding the
preceding sentences with respect to the substantive law, any arbitration conducted pursuant to
terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).” ( Dkt. No. 22-4, Ex. B at 29.);
see also Cronus
,
Accordingly, Section 1281.2(c) is not applicable because the Agreement’s choice-of-law
provision does not incorporate California rules governing arbitration; to the contrary, it expressly
states that arbitration under the Agreement is governed by the FAA. And even if Section
1281.2(c) did apply, the Court would decline to exercise its discretion to not compel arbitration
because the Court is not persuaded that the negligence claim against Getaround affects the claims
against the other Defendants.
Mount Diablo
,
Plaintiffs assert that the “contract in this case does not involve interstate commerce *19 because the contract itself specifies that Getaround’s ‘Service [7] shall be deemed solely based in California.’” (Dkt. No. 42 at 5 (quoting Dkt. No. 22-4, Ex. B at 29).) The Court disagrees for three reasons.
First, while the Agreement states that “the Service shall be deemed solely based in California,” that statement appears in the “Governing Law” section and in context does not refer to the scope of commerce contemplated under the Agreement. As previously discussed, the provision states, in pertinent part:
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Getaround, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of
California, without respect to its conflict of laws principles. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
(Dkt. No. 22-4, Ex. B at 29 (emphasis added).) Thus, the Agreement by its express terms states that the FAA applies. Second, the Agreement elsewhere states that “[t]he Service is controlled and operated from its facilities in the United States[,]” and “all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.” ( Id. at 28.) In support of its motion to compel, Getaround submits the declaration of Brian Pogrund, “Director of Markets for North America at Getaround.” (Dkt. No. 51-1 at ¶ 1.) Mr. Pogrund attests that “Getaround has registered users in at least 10 states and the District of Columbia.” ( at ¶ 4.) Further:
A registered Getaround user can use the Getaround app to rent a car in any state or country where private car owners have registered to rent their cars. Currently, Getaround users can use the Getaround app to rent a car in the following United States cities and states, among many others: Atlanta, Boston, Chicago, Denver, Los Angeles, Miami, New Jersey, Philadelphia, Portland, San Diego, San Francisco, Seattle, and Washington, DC. *20 (Dkt. No. 51-1 at ¶ 5; see also Dkt. No. 51-1, Ex. A at 6 (screenshot from Getaround’s website stating that its rental service is “[a]vailable in over 300 cities around the world”).) Mr. Pogrund also attests that “Getaround does not impose restrictions on where within the United States and Canada a user may travel in a car rented through the Getaround platform.” (Dkt. No. 51-1 at ¶ 6; see also Dkt. No. 51-1, Ex. B at 9 (Getaround “Renter Policy” stating that a renter “may not drive a Car outside of the United States and Canada”).) Thus, as a registered Getaround user, ( see Dkt. No. 22-4 at ¶ 4), Brian Hofer could have rented a car outside of California or driven the one he rented in California across state lines. In other words, the scope of commerce contemplated under the Agreement is clearly not confined to California.
Third, Plaintiffs allege that Brian Hofer “booked the rental [car] through an application on
his smartphone.” (Dkt. No. 38 at ¶ 37.) Thus, the transaction contemplated under the Agreement
affects interstate commerce because Getaround’s customers must access the Internet—“an
instrumentality and channel of interstate commerce”—to use Getaround’s services.
See United
States v. Sutcliffe
,
Plaintiffs’ citation to
Slaughter v. Stewart Enters., Inc.
, No. C 07-01157 MHP, 2007 WL
2255221 (N.D. Cal. Aug. 3, 2007) does not counsel a different result. ( Dkt. No. 42 at 5-6.)
Slaughter
involved a motion to compel arbitration in a wage-and-hour case. The court first
examined the relevant economic activity covered under the employment contract at issue—
crematory services—and concluded that it was purely “intrastate activity.”
Plaintiffs argue that “[t]here is no apparent reason the market for peer-to-peer rental
services that expressly take place within California is any more interstate than that for crematory
services.” (Dkt. No. 42 at 6.) Not so. There are several “apparent reason[s],” all of which were
previously discussed. Simply put, regardless of whether the Agreement states that “the Service
shall be deemed solely based in California,” that is not the reality of the service provided. (
See
Dkt. No. 51-1 at ¶¶ 4-8, Exs. A-B.) Getaround’s rental service is not confined to California and
“in fact involve[s] interstate commerce.”
See Dobson
,
The FAA authorizes a court to grant a stay pending resolution of arbitration. 9 U.S.C.
§ 3 (“[T]he court . . . upon being satisfied that the issue involved . . . is referable to arbitration . . .
shall on application of one of the parties stay the trial of the action until such arbitration has been
had.”). Further, the FAA does not limit a court’s authority to dismiss a case, especially when “all
claims are barred by an arbitration clause.”
Sparling v. Hoffman Constr. Co.
,
IV. Administrative Motion to File Under Seal
Pursuant to Civil Local Rule 79-5, Getaround moves to file under seal portions of an exhibit submitted in conjunction with the declaration of Garrett Kadillak in support of the instant motion to compel arbitration. ( Dkt. No. 22 (moving to file under seal Dkt. No. 22-3, Ex. A).) Getaround asserts that the identified portions warrant sealing because they include personal identifying information “of Plaintiff Brian Hofer contained in a Getaround account database.” (Dkt. No. 22-1 at ¶ 3.) The Court has reviewed the exhibit and agrees that the cited portions contain personal identifying information of Plaintiff Brian Hofer, and thus warrant sealing. Accordingly, the Court grants Getaround’s motion to seal. The identified portions of Dkt. No. 22- 3, exhibit A shall be filed under seal; the remainder of the exhibit shall be filed on the public docket. MOTIONS TO DISMISS A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of a complaint as
failing to allege “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl.
Corp. v. Twombly
,
*23 I. Contra Costa Defendants
As previously discussed, Plaintiffs bring the following seven claims against Contra Costa Defendants: (1) 42 U.S.C. § 1983 for violation of the Fourth Amendment (against the County); (2) 42 U.S.C. § 1983 for violation of the Fourth Amendment (against Deputies Emley, Gant, and Odom); (3) violation of California’s Bane Act, California Civil Code § 52.1; (4) assault and battery; (5) false imprisonment; (6) intentional infliction of emotional distress; and (7) negligence. Contra Costa Defendants move to dismiss all claims on various grounds. The Court addresses each claim and respective argument in support of dismissal in turn.
A.
Section 1983 claim against the County
1.
Section 1983 Claims and Civil Liability Generally
Section 1983 is not a source of substantive rights, but rather “a method for vindicating
federal rights elsewhere conferred.”
Albright v. Oliver
,
A
Monell
claim can proceed under three theories of municipal liability: “(1) when official
*24
policies or established customs inflict a constitutional injury; (2) when omissions or failures to act
amount to a local government policy of deliberate indifference to constitutional rights; or (3) when
a local government official with final policy-making authority ratifies a subordinate’s
unconstitutional conduct.”
Brown v. Contra Costa Cty.
, No. C 12-1923 PJH,
of Brian Hofer’s phone and Plaintiffs’ luggage, and using excessive force on Plaintiffs. (Dkt. No.
38 at ¶¶ 74-76.) Plaintiffs further allege that the County is liable for those violations under
Section 1983 because the Deputies’ actions “were consistent with and pursuant to the policies,
practices, and customs of Contra Costa.” (
Id.
at ¶ 53.) The amended complaint also alleges
municipal liability under a ratification theory; specifically, the Contra Costa County Sheriff, “as
the final policymaker for Contra Costa with respect to the policies and practices of Deputy
Sheriffs,” made a public statement about the incident stating that the deputies involved “followed
procedure and acted appropriately.” ( at ¶ 51-52 (internal quotation marks omitted).) Plaintiffs’
opposition asserts that “the Contra Costa County Sheriff’s public approval of his deputies’ conduct
is sufficient to state a claim for
Monell
liability under the ratification doctrine.” (Dkt. No. 56 at 5
*25
(relying on
Larez v. Los Angeles
,
Contra Costa Defendants argue that dismissal is warranted because Plaintiffs allege only an isolated constitutional violation and thus “fail to identify that the County had a practice or custom of subjecting drivers and passengers during traffic stops during traffic stops to substantial risk of harm and injury.” (Dkt. No. 43 at 11.) As for Plaintiffs’ ratification theory, Contra Costa Defendants assert that the statement attributed to the Contra Costa County Sheriff is insufficient to plead Monell liability in the absence of allegations that the Sheriff “allowed for the perpetuation of unconstitutional policies.” (Dkt. No. 57 at 4.) The Court agrees on the first score but disagrees as to Plaintiffs’ ratification theory.
The amended complaint contains no factual allegations identifying a specific County
policy or custom that served as “the moving force behind the constitutional violation.”
See Dougherty
,
Plaintiffs have, however, sufficiently pleaded a ratification theory at this stage. Plaintiffs
allege that the Contra Costa County Sheriff is the final policymaker for the County “with respect
to the policies and practices of Deputy Sheriffs.” (Dkt. No. 38 at ¶ 51.) Accepting that allegation
as true, the Sheriff’s decisions regarding policies and practices governing deputy conduct could
give rise to municipal liability.
See City of St. Louis v. Praprotnik
,
Contra Costa Defendants argue that Plaintiffs’ reliance on
Larez
is misplaced because there
the plaintiffs also alleged that the Chief of Police and City of Los Angeles “allowed the
perpetuation o[f] unconstitutional policies and customs of excessive force, illegal searches
including official tolerance for the destruction of property during searches, and inadequate
complaint procedures that had the effect of encouraging the excessive use of force.” (
See
Dkt. No.
57 at 4 (citing
Larez
,
*27 Accordingly, the Court DENIES Contra Costa Defendants’ motion to dismiss the Section 1983 claim against the County based on a ratification theory. The motion is GRANTED to the extent Plaintiffs are proceeding on a specific County policy or custom.
B.
Section 1983 claim against Deputies Emley, Gant, and Odom
To adequately plead a Section 1983 claim against individual defendants, a complaint must
identify what constitutional or other federal right each defendant violated, providing sufficient
facts to plausibly support each purported violation.
See Drawsand v. F.F. Props., L.L.P.
, 866 F.
Supp. 2d 1110, 1120 (N.D. Cal. 2011) (“Where multiple defendants are involved, the pleadings
must establish a nexus between each defendant’s actions and the alleged deprivation of plaintiff’s
constitutional rights.”). As previously discussed, Plaintiffs allege that the Deputies violated
Plaintiffs’ Fourth Amendment rights by: (1) stopping, detaining, and arresting Plaintiffs “without a
warrant and without probable cause”; (2) conducting a warrantless search of Plaintiffs’ “trunk and
suitcases and coerc[ing] Brian to provide the password to his phone”; and (3) using excessive
force against Plaintiffs. (
See
Dkt. No. 38 at ¶¶ 74-76.) Contra Costa Defendants move to dismiss
the Section 1983 claims against the individual Deputies because Plaintiffs fail to plead a Fourth
Amendment violation. Further, Contra Costa Defendants argue that even if the Deputies violated
Plaintiffs’ Fourth Amendment rights, the Deputies are entitled to qualified immunity.
Contra Costa Defendants motion to dismiss the Section 1983 claims against the Deputies is
DENIED for the reasons discussed at oral argument. Plaintiffs’ material allegations are
indistinguishable from
Green v. City & Cty. of San Francisco
,
*28 C. Violation of California Civil Code Section 52.1
The Bane Act, California Civil Code Section 52.1, provides a right to relief against anyone
who “interferes by threats, intimidation, or coercion . . . with the exercise or enjoyment by any
individual or individuals of rights secured by the Constitution or laws of the United States, or of
the rights secured by the Constitution or laws of this state.” Cal. Civ. Code § 52.1. Thus, to state
a claim under Section 52.1, a plaintiff must show “an attempted or completed act of interference
with a legal right, accompanied by a form of coercion.”
Jones v. Kmart Corp.
,
Plaintiffs allege that Contra Costa Defendants violated Section 52.1 based on federal and
state constitutional violations related to the Deputies’ use of excessive force, their search of Brian
Hofer’s phone and Plaintiffs’ luggage, and their unlawful detention of Plaintiffs. Contra Costa
Defendants argue that dismissal is warranted because Plaintiffs’ Bane Act claim “fails for the
same reasons . . . that their federal [Section] 1983 false arrest and excessive force claims fail.”
(Dkt. No. 43 at 20-21.) Because the Court concludes that Plaintiffs’ Section 1983 claims survive
dismissal, their Bane Act claim survives as well.
See Green
,
Next, Contra Costa Defendants move to dismiss Plaintiffs’ state law tort claims for assault
and battery, false imprisonment, intentional infliction of emotional distress, and negligence
because the Deputies’ actions were privileged under state law; specifically, California Penal Code
§§ 835a, 836.5(b). Contra Costa Defendants further move to dismiss Plaintiffs’ negligence claim
because Plaintiffs cannot establish breach of any duty Contra Costa Defendants owed to Plaintiffs.
The Court notes that
Green
supports denial of Contra Costa Defendants’ motion to dismiss
Plaintiffs’ tort claims on this record.
*29 1. California Penal Code § 835a
Pursuant to California Penal Code § 835a, a police officer “who has reasonable cause to
believe that the person to be arrested has committed a public offense may use
reasonable force
to
effect the arrest, to prevent escape or to overcome resistance.” Cal. Penal Code § 835a (emphasis
added). The privilege applies to “any tort liability” arising out of such use of force.
See Gilmore
v. Superior Ct.
,
2. California Penal Code § 836.5(b)
California Penal Code § 836.5(b) provides:
There shall be no civil liability on the part of, and no cause of action *30 shall arise against, any public officer or employee acting pursuant to subdivision (a) [10] and within the scope of his or her authority for false arrest or false imprisonment arising out of any arrest that is lawful or that the public officer or employee, at the time of the arrest, had reasonable cause to believe was lawful. No officer or employee shall be deemed an aggressor or lose his or her right to self-defense by the use of reasonable force to effect the arrest, prevent escape, or overcome resistance. Cal. Penal Code § 836.5(b). Contra Costa Defendants’ motion cites this provision, arguing that the Deputies “were privileged under California Penal Code Sections 835a, 836.5(b) unless they used unreasonable force, or acted without reasonable suspicion to make a high-risk traffic stop.” (Dkt. No. 43 at 21.) They provide no substantive argument regarding this statute, and it appears inapplicable on its face. The facts alleged do not establish “an[ ] arrest that is lawful or that the public officer or employee, at the time of the arrest, had reasonable cause to believe was lawful.” Cal. Penal Code § 836.5(b). Nor is Contra Costa Defendants’ citation to this statute consistent with the arguments set forth in their motion, ( see Dkt. No. 43 at 11-17 (“reasonable suspicion that a suspect is driving a stolen car does not convert the investigatory detention into an arrest requiring probable cause”)), or their reply, ( see Dkt. No. 57 at 4 (“Plaintiffs were not arrested”)). Simply put, this statute is not applicable on the record before the Court. 3. Negligence 17 Under California law, the elements of a negligence claim are: (1) “the existence of duty 18
(the obligation to other persons to conform to a standard of care to avoid unreasonable risk of 19
harm to them)”; (2) “breach of duty (conduct below the standard of care)”; (3) “causation 20
(between the defendant’s act or omission and the plaintiff’s injuries)”; and (4) damages. Merrill v.
21
Navegar, Inc.
,
22
establish breach of duty. That argument fails, however, because “[u]nder California law, police 23
officers have a duty not to use excessive force.”
See Warren v. Marcus
,
1251 (N.D. Cal. 2015). Because Plaintiffs have plausibly alleged a Section 1983 excessive force 25
26 [10] Subdivision “a” provides: “A public officer or employee, when authorized by ordinance, may arrest a person without a warrant whenever the officer or employee has reasonable cause to 27 believe that the person to be arrested has committed a misdemeanor in the presence of the officer or employee that is a violation of a statute or ordinance that the officer or employee has the duty to 28 enforce.” Cal Penal Code § 836.5(a). *31 claim, their negligence claim premised on the same conduct survives.
4. Direct Liability Against the County The Court notes, however, that Plaintiffs fail to plead a statutory basis for direct liability against the County. California Government Code provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as “provided by statute.” Cal. Gov. Code § 815(a). Here, Plaintiffs fail to plead a particular statute that would abrogate the County’s statutory immunity from common-law torts. Thus, to the extent Plaintiffs’ tort claims against the County are premised on a theory of direct liability, the Court grants Contra Costa Defendants’ motion to dismiss. That said, California Government Code Section 815.2 provides for vicarious liability, stating in pertinent part: A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
Cal. Gov. Code § 815.2(a). It is settled that “a governmental entity can be held vicariously liable
when a police officer acting in the course and scope of employment uses excessive force or
engages in assaultive conduct.”
Mary M. v. City of Los Angeles
,
***
Accordingly, the Court GRANTS Contra Costa Defendants’ motion to dismiss in part. The state law tort claims against the County are dismissed to the extent they are premised on a theory of direct and not vicarious liability. The Court DENIES the motion in all other respects. II. San Jose
Plaintiffs bring a single claim against San Jose for negligence, alleging that the City “breached its duty to maintain accurate records of stolen vehicles, which records are transmitted to police agencies throughout California and the rest of the United States.” (Dkt. No. 38 at ¶ 91.) San Jose moves to dismiss the claim on three independent grounds: (1) the claim “is precluded by *32 the California Government Claims Act because there is no statutory basis for their claim”; (2) Plaintiffs fail to state a plausible claim for relief “because the City has no duty under the facts alleged”; and (3) San Jose is entitled to immunity. (Dkt. No. 45 at 4.) The first two grounds are intertwined, and the Court agrees that Plaintiffs’ amended complaint fails to identify the statutory basis for its negligence claim against the City and dismissal is warranted on those grounds. San Jose is not entitled to immunity, however.
A. Direct Liability
As previously discussed, the California Government Code provides that “[a] public entity
is not liable for an injury, whether such injury arises out of an act or omission of the public entity
or a public employee or any other person” except as “provided by statute.” Cal. Gov. Code §
815(a);
see also Hoff v. Vacaville Unified Sch. Dist.
,
Plaintiffs’ amended complaint is devoid of
any
reference to a statutory basis for its
negligence claim against San Jose. Plaintiffs allege that San Jose “breached its duty to maintain
accurate records of stolen vehicles,” without identifying a statutory basis for such duty. ( Dkt.
No. 38 at ¶ 91.) And although Plaintiffs’ opposition to San Jose’s motion to dismiss asserts that
“the City has a mandatory statutory duty to report stolen vehicles that are recovered to the
appropriate [California] Department of Justice automated property system” pursuant to California
Penal Code § 11108,
[11]
(
see
Dkt. No. 54 at 3), that argument does not cure Plaintiffs’ failure to
*33
allege a statutory basis for direct liability against the City in the amended complaint itself.
Further, Penal Code § 11108 applies to “[e]ach sheriff or police chief executive,”
see
Cal. Penal
Code § 11108, and on its face does not impose a mandatory duty on the City,
see Guzman v. Cty.
of Monterey
,
Accordingly, to the extent Plaintiffs’ negligence claim against San Jose is premised on a theory of direct liability for breach of a mandatory duty, the Court GRANTS the City’s motion to dismiss with leave to amend. B. Vicarious Liability The amended complaint is likewise silent as to any statutory basis for vicarious liability against the City for actions by SJPD. Plaintiffs’ opposition argues that Penal Code § 11108 imposes a “mandatory duty . . . on the City’s Chief of Police, and the Government Code makes the City liable for the Chief’s breach of that duty” pursuant to Government Code § 815.2. (Dkt. No. 54 at 3.) As previously discussed, Section 815.2 provides, in pertinent part:
A public entity is liable for injury proximately caused by an act or
omission of an employee of the public entity within the scope of his
employment if the act or omission would, apart from this section,
have given rise to a cause of action against that employee or his
personal representative.
Cal. Gov. Code § 815.2(a). Thus, Section 815.2(a) “makes a public entity vicariously liable for its
employee’s negligent acts or omissions within the scope of employment.”
Eastburn
, 31 Cal. 4th
at 1180. Such liability only attaches, however, “if and when it is adjudged that the employee was
negligent,” and although “public entities always act through individuals, that does not convert a
claim for direct negligence into one based on vicarious liability.”
Munoz
,
*34
1113 (2004),
disapproved of on other grounds by Hayes v. Cty. of San Diego
,
Here, the amended complaint identifies SJPD; however, to the extent Plaintiffs’ opposition asserts that it is proceeding on a theory that Penal Code § 11108 imposes a “mandatory duty . . . on the City’s Chief of Police” and the City is vicariously liable for breach of that duty under Section 815.2(a), Plaintiffs must plead that theory and support it with factual allegations. Plaintiffs have not done so.
Plaintiffs’ opposition also asserts that the City owed a duty to Plaintiffs under Section
815.2 because a private individual would owe Plaintiffs a duty under the same circumstances and
thus be liable for negligence. (Dkt. No. 54 at 4.) Plaintiffs cite no direct authority for that
proposition and instead cite
Lawson v. Safeway Inc.
,
Plaintiffs’ argument is contrary to the “public duty” rule recognized by California courts.
The rule rejects imposition on law enforcement officials of “a privately enforceable duty to use
reasonable diligence in the performance of public functions” because such a duty “would
effectively bring the business of government to a speedy halt.”
Adams v. City of Fremont
, 80
Thus, Plaintiffs’ assertion that the City’s Chief of Police—and by extension under Section 815.2, the City—would have the same general negligence liability of a private individual under the same circumstances is contrary to California tort law. Nor are there any allegations of a “special relationship” that would override the public duty rule. See id. at 28 (affirming dismissal of negligence claim against police where complaint contained “no allegation of the requisite factors to a finding of special relationship, namely detrimental reliance by the plaintiff on the officers’ conduct, statements made by them which induced a false sense of security and thereby worsened [the plaintiff’s] position”). Indeed, Plaintiffs’ opposition acknowledges that “Plaintiffs do not allege that the City’s duty to report that the car it had reported stolen was recovered was based upon a special relationship.” (Dkt. No. 54 at 4.) In sum, dismissal is warranted because Plaintiffs fail to plead a statutory basis for their
negligence claim against the City. The remaining question is whether the City is immune from negligence liability in this action altogether. It is not. C. Immunity San Jose argues that it is entitled to immunity from liability for the conduct alleged. (Dkt. No. 45 at 4.) As previously discussed, Plaintiffs allege that an unidentified individual filed a police report in October 2018 reporting the subject rental car as stolen. (Dkt. No. 38 at ¶ 54.) SJPD then “placed the vehicle on a list of stolen vehicles, such that an alert was apparently sent to police agencies and ALPR vendors like Vigilant.” ( Id. ) The vehicle was subsequently recovered and SJPD “apparently received some information provided on behalf of Getaround by text and telephone from someone requesting an incident report number that the car was either not, in fact, stolen or had been returned.” ( Id. at ¶ 55.) Plaintiffs allege that despite this information, SJPD “failed to remove the car from the list of stolen vehicles” and “the car Brian rented remained in Vigilant’s database until at least November 25, 2018, when [Plaintiffs] were pulled over.” ( at ¶ 56.)
San Jose argues that it is entitled to immunity on four grounds: (1) the absolute privilege for police reports under California Civil Code § 47; (2) Government Code §§ 815.2(b), 821.6; (3) *36 Government Code § 818.8; and (4) Government Code § 818. (Dkt. No. 45 at 8-9.) The Court addresses each argument in turn. [12]
1. Civil Code § 47 San Jose asserts that the City is protected from liability for SJPD’s alleged negligence because Plaintiffs’ claim is predicated on an alleged communication between a private party and SJPD that is subject to an absolute privilege under Civil Code § 47. As explained by the California Supreme Court:
Section 47 establishes a privilege that bars liability in tort for the making of certain statements. Pursuant to section 47(b), the privilege bars a civil action for damages for communications made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course
of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate], with certain statutory exceptions.
Hagberg v. California Fed. Bank
,
An absolute privilege exists to protect citizens from the threat of
litigation for communications to government agencies whose function
it is to investigate and remedy wrongdoing. The privilege is based on
the importance of providing to citizens free and open access to
governmental agencies for the reporting of suspected illegal activity.
Hagberg
,
that would be available to the public entity if it were a private person .
Cal. Gov. Code § 815(b) (emphasis added). Thus, the City’s negligence liability is subject to the
same defenses under California law available to private parties. Under Civil Code § 47, the
alleged report to SJPD “provided on behalf of Getaround” cannot form the basis for negligence
liability against the individual who made that report. However, Plaintiffs are not suing the City
based on the alleged report that the rental car was not stolen or had been recovered; Plaintiffs
allege instead that SJPD was negligent in failing to act on that information. In other words, the
report itself is not “the basis for tort liability” in this action.
Ibrahim
,
*38 2. Government Code §§ 815.2(b), 821.6
San Jose next asserts immunity under Government Code §§ 815.2(b), 821.6. Section
815.2(b) provides: “Except as otherwise provided by statute, a public entity is not liable for an
injury resulting from an act or omission of an employee of the public entity where the employee is
immune from liability.” Cal. Gov. Code § 815.2(b). Section 821.6 provides that “[a] public
employee is not liable for injury caused by his instituting or prosecuting any judicial or
administrative proceeding within the scope of his employment, even if he acts maliciously and
without probable cause.” Cal. Gov. Code. § 821.6. San Jose argues that any actions taken by
SJPD in the course of its investigation into the stolen vehicle are covered under Section 821.6.
(Dkt. No. 45 at 9 (citing
Amylou R. v. Cty. of Riverside
,
3.
Government Code § 818.8
Government Code § 818.8 provides that “[a] public entity is not liable for an injury caused
by misrepresentation by an employee of the public entity, whether or not such misrepresentation
be negligent or intentional.” Section 818.8 provides “public entities immunity for negligent
*39
misrepresentation but not for negligence.”
Jopson v. Feather River Air Quality Mgmt. Dist.
, 108
Cal. App. 4th 492, 495 (2003). As explained by the California Supreme Court,
“‘misrepresentation,’ as a tort distinct from the general milieu of negligent and intentional wrongs,
applies to interferences with financial or commercial interest. The Legislature designed section
818.8 to exempt the governmental entity from that type of liability.”
Johnson v. State of
California
,
San Jose argues that it is immune from liability under Section 818.8 because “[t]he essence
of Plaintiffs’ negligence claim against the City is that the City communicated incorrect
information to other police agencies that the vehicle was stolen and unrecovered.” (Dkt. No. 45 at
9.) Plaintiffs’ opposition asserts that the City mischaracterizes Plaintiffs’ claim, and “[i]n fact,
Plaintiffs’ never allege that the City communicated incorrect information to anyone.” (Dkt. No.
54 at 5.) The Court agrees that Section 818.8 is inapplicable on the facts alleged and drawing all
reasonable inferences in Plaintiffs’ favor. Plaintiffs’ negligence claim alleges breach of duty
based on SJPD’s failure to act on information it allegedly received from someone “on behalf of
Getaround.” (
See
Dkt. No. 38 at ¶¶ 55-56.) The amended complaint contains no allegations
regarding interference with “financial or commercial interest,” which is required to trigger
immunity under Section 818.8.
See Johnson
,
San Jose argues in its reply brief that Section 818.8 applies because “the alleged injury is
caused by an alleged breach of ‘the duty to use due care in obtaining and communicating
information’” and thus the claim sounds in misrepresentation, not negligence. ( Dkt. No. 58 at
9-10 (quoting
United States v. Neustadt
,
The
Neustadt
Court addressed “whether the United States may be held liable, under the
Federal Tort Claims Act, 28 U.S.C. [§] 1346(b), . . . to a purchaser of residential property who has
been furnished a statement reporting the results of an inaccurate [Federal Housing Administration]
*40
inspection and appraisal, and who, in reliance thereon, has been induced by the seller to pay a
purchase price in excess of the property’s fair market value.”
To say, as the Fourth Circuit did, that a claim arises out of “negligence,” rather than “misrepresentation,” when the loss suffered by the injured party is caused by the breach of a ‘specific duty’ owed by the Government to him, i.e., the duty to use due care in obtaining and communicating information upon which that party may reasonably be expected to rely in the conduct of his economic affairs, is only to state the traditional and commonly understood legal
definition of the tort of “negligent misrepresentation,”. . . and which there is every reason to believe Congress had in mind when it placed the word “misrepresentation” before the word “deceit” in [§] 2680(h).
Id. at 706-07 (footnote omitted). Thus, the Neustadt Court concluded that Section 2680(h) immunized the Government from liability in the action because: the Government owes a “specific duty” to obtain and communicate information carefully, less the intended recipient be misled to his financial harm . While we do not condone carelessness by government employees in gathering and promulgating such information, neither can we justifiably ignore the plain words Congress has used in limiting the scope of the Government's tort liability. Id. at 710 (emphasis added). In reaching that conclusion, the Neustadt Court noted that the tort of misrepresentation “has been confined very largely to the invasion of interests of a financial or commercial character, in the course of business dealings.” at 711 n.26 (internal quotation marks and citation omitted).
Again, there are no allegations of financial or commercial harm here, and California caselaw is clear that Section 818.8 is inapplicable in the absence of such harm. See Johnson , 69 Cal. 2d at 800. Thus, San Jose fails to show that immunity under Section 818.8 applies as a matter of law.
4. Government Code § 818 San Jose argues that “Plaintiffs’ claim for punitive damages is precluded as a matter of *41 law” because Government Code § 818 provides that “a public entity is not liable for damages . . . imposed primarily for the sake of example and by way of punishing the defendant.” (Dkt. No. 45 at 10 (quoting Cal. Gov. Code § 818).) Plaintiffs’ opposition counters that they “do not specifically assert a punitive damage[s] claim against the City and they agree that such damages are not recoverable under the Government Code.” (Dkt. No. 54 at 5.) Because Plaintiffs do not seek punitive damages against San Jose, the City’s argument is moot.
***
Accordingly, the Court GRANTS San Jose’s motion to dismiss with leave to amend because Plaintiffs fail to plead a statutory basis for their negligence claim against the City. III. Vigilant
A. Request for Judicial Notice Generally, “district courts may not consider material outside the pleadings when assessing the sufficiency of a complaint under Rule 12(b)(6).” Khoja v. Orexigen Therapeutics, Inc. , 899 F.3d 988, 998 (9th Cir. 2018). Courts may, however, consider adjudicative facts subject to judicial notice under Federal Rule of Evidence 201 at the Rule 12(b)(6) stage. Id. Pursuant to Rule 201(b), a judicially noticed adjudicative fact must be one “that is not subject to reasonable dispute because it: (1) is generally known with the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”
In support of its motion, Vigilant seeks judicial notice of certain federal and state government websites; specifically, the National Crime Information Center (“NCIC”) website maintained by the FBI at https://www.fbi.gov/services/cjis/ncic, and the California Department of Justice (“CDOJ”) website containing “Policies, Practices and Procedures for California Law Enforcement Telecommunications System,” https://oag.ca.gov/sites/oag.ca.gov/files/clets-ppp- 030818_0.pdf. (Dkt. No. 46 at n.1.) Vigilant asserts that the websites “explain[ ] how the stolen vehicle hot list is created, maintained, modified, and used.” ( ) Plaintiffs argue that the websites do not meet the Rule 201(b) requirement “that judicially noticed facts are ‘not subject to reasonable dispute’ because they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.’” (Dkt. No. 55 at 2.) The Court disagrees.
*42
Courts in this circuit routinely take judicial notice of material contained on government
agency websites.
See, e.g., Daniels-Hall v. Nat’l Educ. Ass’n
,
Plaintiffs’ reliance on
Ries v. Arizona Beverages USA LLC
,
B. Discussion
Plaintiffs bring a single claim against Vigilant for negligence, alleging that Vigilant “breached its duty to maintain accurate records of stolen vehicles, which records are transmitted to and relied upon by police agencies throughout California and the rest of the United States through [Vigilant’s] ALPR system.” (Dkt. No. 38 at ¶ 93.) Vigilant moves to dismiss the claim because Plaintiffs: (1) fail to plead any factual allegations regarding “the existence or breach of a duty by Vigilant”; and (2) fail to allege any “damages proximately caused by the alleged breach of such duty by Vigilant.” (Dkt. No. 46 at 3-4.) The Court concludes that the first argument is dispositive and agrees that dismissal with leave to amend on those grounds is warranted.
The amended complaint alleges that as a manufacturer of APLR equipment “and host of
the [APLR] data, Vigilant has a duty to ensure the accuracy of the information within its ALPR
system.” (Dkt. No. 38 at ¶ 61.) As previously discussed, Plaintiffs allege that in the alternative to
SJPD or Getaround’s alleged negligence, SJPD reported that the rental car “was actually not stolen
or had been recovered in a manner that notified Vigilant that the car should not be on its stolen
vehicle list.” (
Id.
at ¶ 62.) Plaintiffs further allege that Vigilant “failed to update its list of stolen
vehicles” despite SJPD’s report, and the failure to do so constitutes a breach of Vigilant’s “duty to
maintain accurate records of stolen vehicles.” ( at ¶¶ 63, 93.)
Even assuming arguendo that Vigilant did have a duty to maintain its own accurate records
of stolen vehicles, Plaintiffs’ allegations regarding breach of that duty are not plausible. Although
Plaintiffs’ alternative allegations regarding SJPD’s receipt of information regarding the rental
car’s recovery are permissible at this stage of litigation,
see PAE
,
Further, Plaintiffs’ allegations do not give rise to a reasonable inference that Vigilant had control over the stolen vehicle list such that it could remove a vehicle from the list. Plaintiffs allege that Vigilant “hosts” the stolen vehicle data used in its APLR system. ( See Dkt. No. 38 at ¶ 61.) Absent further factual allegations, merely hosting such data does not suggest that Vigilant creates or otherwise controls the content of the stolen vehicle list. The CDOJ and NCIC websites suggest that a private entity like Vigilant would not have such control. [13] While Plaintiffs may allege otherwise, they must allege facts that suggest such control is plausible.
Accordingly, the Court GRANTS Vigilant’s motion to dismiss with leave to amend.
CONCLUSION
For the reasons set forth above, the Court:
1. GRANTS Getaround’s motion to compel arbitration and STAYS the action as to Getaround pending completion of arbitration; 2. GRANTS Contra Costa Defendants’ motion to dismiss the state law tort claims against the County to the extent those claims are premised on direct and not vicarious liability; 3. DENIES Contra Costa Defendants’ motion to dismiss in all other respects; 4. GRANTS San Jose’s motion to dismiss; and 5. GRANTS Vigilant’s motion to dismiss
Plaintiff is granted to leave to amend and shall file an amended complaint within 30 days of this Order. A Case Management Conference is scheduled for November 14, 2019 at 1:30 p.m. *45 in Courtroom F, 450 Golden Gate Ave., San Francisco. A Joint Case Management Conference Statement is due November 7, 2019.
This Order disposes of Docket Nos. 17, 22, 43, 45, and 46.
IT IS SO ORDERED.
Dated: September 20, 2019 JACQUELINE SCOTT CORLEY
United States Magistrate Judge
Notes
[1] All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 27 636(c). ( Dkt. Nos. 5, 16, 23, 32, 35, and 48.)
[2] Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.
[3] Plaintiffs allege that after the rental car was recovered “and placed back into [Getaround’s] 24 platform to be rented again, Getaround failed to notify [SJPD] of the recovery, or failed to notify the department in such a way that was likely to cause the department to accurately document that 25 [the rental car] was not stolen.” (Dkt. No. 38 at ¶ 57.) Plaintiffs also allege, “in the alternative” to the allegations against Getaround regarding its failure to adequately notify SJPD, that SJPD 26 “reported that the car Brian rented was actually not stolen or had been recovered in a manner that notified Vigilant that the car should not be on its stolen vehicle list.” ( at ¶ 62.) Such 27 alternative allegations are permissible at this stage. PAE Gov’t Servs., Inc. v. MPRI, Inc. , 514 F.3d 856, 859 (9th Cir. 2007) (“[W]e allow pleadings in the alternative—even if the alternatives are 28 mutually exclusive.”). The amended complaint asserts that the “alternative” allegations are
[4] Getaround submits the declaration of Garrett Kadillak, “Software Engineer of Renter Experience 24 at Getaround,” who attests that Brian Hofer initially accepted the Agreement on March 19, 2017 when he created his Getaround user account, and was most recently prompted to accept the 25 Agreement again on July 12, 2018. (Dkt. No. 22-4 at ¶¶ 4-5 (citing sealed exhibit at 22-3, Ex. A (“true and correct copy of Brian’s account information stored in [Getaround’s operations support 26 system]”)).) Brian Hofer’s declaration in support of Plaintiffs’ opposition to Getaround’s motion to compel attests: “I do not recall accepting Getaround’s Terms of Service but at this time cannot 27 dispute that I did so. If I did agree to Getaround’s Terms of Service, I certainly did not negotiate those terms with Getaround in any way.” (Dkt. No. 42-1 at ¶ 3.) Plaintiffs do not, however, raise 28 any defense of unconscionability in opposition to the instant motion.
[5] Although not addressed by the parties, the Court notes that the relationship between Jonathan
26
Hofer and Brian Hofer further supports application of the doctrine of equitable estoppel in this
case.
See Cty. of Contra Costa
,
[6] Section 1281.2(d) further provides that if Section 1281.2(c) applies: “the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.” Cal. Code Civ. Proc. § 1281.2(d).
[7] The Agreement defines “Service” to include Getaround’s “web site, web widgets, feeds, mobile 27 device software applications . . . , applications for third-party web sites and services, and any other mobile or online services and/or applications owned, controlled, or offered by Getaround.” (Dkt. 28 No. 22-4, Ex. B at 12.)
[8] No party has requested a stay of litigation as to the nonarbitrating defendants, and the Court in its
discretion concludes that such a stay is not warranted.
See Moses H. Cone
,
[9] Contra Costa Defendants’ motion to dismiss cites
Green
for the proposition that “[a]n
27
unconfirmed hit on the ALPR does not, alone, form the reasonable suspicion necessary to support
an investigatory detention.” ( Dkt. No. 43 at 12, 19 (citing
Green
,
[11] California Penal Code § 11108 provides: “Each sheriff or police chief executive shall submit 27 descriptions of serialized property, or nonserialized property that has been uniquely inscribed, which has been reported stolen, lost, found, recovered, held for safekeeping, or under observation, 28 directly into the appropriate Department of Justice automated property system for stolen bicycles,
[12] San Jose’s reply brief raises two additional grounds for immunity: Government Code §§ 820.2,
820.8. ( Dkt. No. 58 at 10.) The Court declines to consider the City’s arguments regarding
immunity on those grounds because they were not raised in the City’s motion.
See Zamani v.
Carnes
,
[13] https://www.fbi.gov/services/cjis/ncic (“The FBI provides a host computer and telecommunication lines to a single point of contact in each . . . state,” and “[t]hose jurisdictions, in turn, operate their own computer systems, providing access to nearly all local criminal justice agencies and authorized non-criminal justice agencies nationwide. The entry, modification, and removal of records are the responsibility of the [law enforcement] agency that entered them.”); Policies, Practices and Procedures (and Statutes) , California Dep’t of Justice 44, 48 (2018), https://oag.ca.gov/sites/oag.ca.gov/files/clets-ppp-030818_0.pdf (noting that the CDOJ “maintains and operates the [California Law Enforcement Telecommunications System] and the criminal justice databases,” including “the Stolen Vehicle System,” defined as the CDOJ database “containing information regarding lost, stolen, stored or impounded vehicles, vehicle license plates or vehicle parts”).