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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANDRE VERDUN; IAN ANOUSH
GOLKAR, on behalf of themselves and a
class of all others similarly situated.,

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Case No.: 3:19-cv-00839-AJB-WVG
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

Plaintiffs,
v.
CITY OF SAN DIEGO; SAN DIEGO
POLICE DEPARTMENT; Does 1-130,
inclusive

(Doc. No. 6)

Defendants.

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Presently before the Court is Defendants City of San Diego and San Diego Police

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Department’s (“Defendants”) motion to dismiss Plaintiffs Andre Verdun and Ian Anoush

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Golkar’s (“Plaintiffs”) complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil

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Procedure. (Doc. No. 6.) Plaintiffs oppose the motion. (Doc. No. 12.) For the reasons set

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forth below, the Court GRANTS IN PART and DENIES IN PART the motion.

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BACKGROUND

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This dispute centers on law enforcement’s practice of marking the tires of parked

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vehicles with chalk to determine whether the vehicle has overstayed the time limit of city-

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owned parking spaces. Specifically, Plaintiffs challenge Defendants’ practice of tire
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chalking as an unreasonable search in violation of the Fourth Amendment of the United

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States Constitution. (Doc. No. 1 ¶ 33.) Plaintiffs claim the placement of chalk marks on the

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tires of privately-owned vehicles for surveillance purposes physically violates the owners’

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property rights and caused constitutional and monetary harm. (Id. ¶ 35.)

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On May 3, 2019, Plaintiffs instituted this lawsuit seeking injunctive relief in this

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Court by filing the operative complaint alleging a cause of action pursuant to 42 U.S.C §

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1983, civil action for deprivation of rights under the Fourth Amendment of the United

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States Constitution. (Doc. No. 1 ¶ 33.) Defendants filed the instant Motion to Dismiss the

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Class Action Complaint for failure to state a claim upon which relief can be granted

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pursuant to Federal Rule of Civil Procedure 12(b)(6) 1 on June 19, 2019. (Doc. No. 6 at

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10.) Plaintiffs oppose Defendants’ Motion to Dismiss, and Defendants filed a reply. (Doc.

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Nos. 12, 13.) This order follows.

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LEGAL STANDARD

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A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the

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complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain

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“a short and plain statement of the claim showing that the pleader is entitled to relief . . . .”

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Fed. R. Civ. P. 8(a)(2). Plaintiffs must also plead, however, “enough facts to state a claim

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to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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The plausibility standard thus demands more than a formulaic recitation of the elements of

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a cause of action or naked assertions devoid of further factual enhancement. Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain sufficient allegations

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of underlying facts to give fair notice and to enable the opposing party to defend itself

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effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the

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truth of all factual allegations and must construe them in the light most favorable to the

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All references to “Rule” are to the Federal Rules of Civil Procedure.
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nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The

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court need not take legal conclusions as true “merely because they are cast in the form of

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factual allegations.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting

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W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Similarly, “conclusory

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allegations of law and unwarranted inferences are not sufficient to defeat a motion to

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dismiss.” Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).

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Where dismissal is appropriate, a court should grant leave to amend, unless the

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plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of

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Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).

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DISCUSSION

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Defendants move for dismissal on the basis that Plaintiffs have not stated a violation

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of their Fourth Amendment rights on which to hinge a § 1983 action, and even if they did,

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Defendants’ actions fall within an exception to the warrant requirement of the Fourth

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Amendment. (Doc. No. 6, 13.) The Court will consider each argument in turn.

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I. Violation of Civil Rights Claim: 42 U.S.C. § 1983

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42 U.S.C. § 1983 “is not itself a source of substantive rights, but a method for

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vindicating federal rights elsewhere conferred by those parts of the United States

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Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144

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n.3 (1979). “To state a claim under [42 U.S.C.] § 1983, a plaintiff must allege the violation

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of a right secured by the Constitution and laws of the United States and must show that the

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alleged deprivation was committed by a person acting under color of state law.” West v.

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Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). To act

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under color of state law, a defendant must exercise “power ‘possessed by virtue of state

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law,’” and his or her actions were “made possible ‘only because the wrongdoer is clothed

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with the authority of state law.’” Id. at 49 (quoting United States v. Classic, 313 U.S. 299,

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326 (1941)).

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A. Fourth Amendment Violation

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The foundation of Plaintiffs’ asserted violation of the Fourth Amendment rests on

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trespass to Plaintiffs’ personal property through the placement of chalk marks on the tires

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of their vehicles while parked in city-owned parking spaces. (Doc. Nos. 1, 12.) Plaintiffs

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primarily rely on the recent decision of Taylor v. Saginaw to support their position. 922

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F.3d 328 (6th Cir. 2019). The Sixth Circuit considered similar circumstances and held that

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chalking of tires to enforce parking violations was indeed a search under the Fourth

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Amendment. Id. at 336.

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To determine whether a Fourth Amendment violation has occurred, the Court looks

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first to “whether the alleged government conduct constitutes a search within the meaning

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of the [] Amendment; and second, whether the search was reasonable.” Taylor, 922 F.3d

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at 332. Plaintiffs have purported that a search has occurred because of a physical trespass.

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(Doc. No. 1¶¶ 34–35.) Although this “common-law trespassory” test is not the exclusive

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means of analyzing a Fourth Amendment violation, it is the argument the Plaintiffs have

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set forth and the argument that the Court addresses today. United States v. Jones, 565 U.S.

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400, 401 (2012). Under Jones, when a governmental intrusion includes a physical

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intrusion, a search occurs when that intrusion (1) trespasses upon a constitutionally

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protected area (2) to obtain information. Id. at 404–05; see also Nassiri v. Colvin, No.

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15CV0583-WQH-NLS, 2015 WL 5098470, at *10 (S.D. Cal. Aug. 31, 2015).

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Plaintiffs reliance on the Sixth Circuit’s decision in Taylor, although persuasive, is

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not binding on the Court. Namely, the Sixth Circuit relied on the Restatement (Second) of

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Torts to define trespass. Taylor, 922 F.3d at 332–33. Although this Court and the Ninth

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Circuit have not exclusively relied on the Restatement’s definition of trespass, the

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consensus of the definition of trespass is largely the same between the Sixth and Ninth

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Circuits and shall be applied here. United States v. Milner, 583 F.3d 1174, 1182–83 (9th

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Cir. 2008) (finding Federal common law governs an action for trespass and “that law

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generally comports with the Restatement of Torts”); California v. Kinder Morgan Energy

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Partners, L.P., No. 07-CV-1883-MMA(WVG), 2013 WL 314825, at *67 (S.D. Cal. Jan.
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25, 2013) (citing California caselaw and the Restatement (Second) of Torts to define

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trespass).

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Considering Jones, a technical trespass occurs when there is unauthorized physical

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intrusion. Jones, 565 U.S. at 420 (Sotomayor, J., concurring). Although Jones does not

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outline the boundaries of how intrusive this unauthorized physical intrusion must be to be

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considered a trespass, the Supreme Court found that the physical contact of a GPS beeper

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to the undercarriage of a car was sufficient, even though the actual contact of the beeper

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did not cause any damage to the defendant’s effect. Id. at 403.

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Here, considering whether the Defendants’ conduct was trespassory, the Court finds

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Plaintiffs have pled sufficient facts to establish their claim. Defendants physically placed

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chalk marks on the tires of vehicles. (Doc. No. 6 at 9.) Although this contact does not cause

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outward damage to Plaintiffs’ property, it is a technical trespass nonetheless.

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Moreover, constitutionally protected areas include persons’ papers, houses, and

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effects. U.S. Const. amend. IV. This case involves constitutionally protected personal

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property – personal vehicles – belonging to the Plaintiffs.

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Once a technical trespass has been established, it must also be shown that the trespass

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is conjoined with an attempt to obtain information. Id. at 408 n.5. This is a fairly evident

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point established both in Jones and here. In Jones, the police used the installed beeper to

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track the defendant for investigatory purposes. Id. at 403. Here, the police chalked

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Plaintiffs’ tires to obtain information as to whether Plaintiffs violated the parking

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limitations in order to issue a citation. (Doc. No. 1 ¶ 33.)

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Having found that Plaintiffs have pled sufficient facts to allege a violation of the

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Fourth Amendment, the Court now considers the reasonableness of the search. Searches

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conducted outside the judicial process, without prior approval by a judge or magistrate, are

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unreasonable under the Fourth Amendment unless an exception to the warrant requirement

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applies. Terry v. Ohio, 392 U.S. 1, 19 (1968). In other words, if the Defendants’ conduct

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is justified by an exception then their conduct is valid under the Fourth Amendment. Id.

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II. Exceptions to the Warrant Requirement of the Fourth Amendment

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The Sixth Circuit in Taylor made clear that tire chalking without a warrant should

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not be understood to violate the Fourth Amendment as a matter of law. Taylor, 922 F.3d at

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336. That Court addressed the community caretaking exception in relation to the pled facts

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and held that at the pleading stage, it was not clear as a matter of law that the community

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caretaking exception justified the defendant’s conduct. Id. In other words, it declined to

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dismiss the plaintiffs’ entire action pursuant to a warrant exception based only on the facts

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pled. Id. The Court is inclined to hold similarly here.

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A. The Community Caretaker Exception

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As outlined in Cady v. Dombrowski, the community caretaking doctrine allows law

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enforcement to act without a warrant when they are acting totally divorced from

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investigation or acquisition of evidence relating the violation of a criminal statute. 413 U.S

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433, 441 (1973). This doctrine was established to recognize law enforcement’s duty to

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preserve public safety. Id. It typically applies in situations where there is a safety threat but

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not a threat of a crime. Id.; see also Cady, 413 U.S. at 437 (upholding the police’s search

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of a vehicle likely containing a firearm, even though possession of the firearm was not a

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crime); People v. Ray, 21 Cal. 4th 464, 467 (1999) (finding that police returning lost

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children to their parents was a community caretaking function).

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Here, however, it is not clear that the doctrine applies. Although tire chalking is

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arguably divorced from investigation, it is unclear whether there is a public safety risk to

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justify the Defendants’ actions. Defendants have merely offered that it applies to address

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the “immediate need for safety in the City’s rights of way.” (Doc. No. 6 at 24.)

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Accordingly, the Court finds Defendants are not entitled to dismissal under the community

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caretaking doctrine at this juncture.

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B. The Special Needs Exception

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The special needs doctrine applies if the governmental search is in furtherance of a

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special need beyond that of general law enforcement. Griffin v. Wisconsin, 483 U.S. 868,

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873 (1987); see also City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000); Ferguson v.
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City of Charleston, 532 U.S. 67, 79 (2001). This doctrine allows the government to conduct

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a warrantless search when special needs make obtaining a warrant for probable cause

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impracticable. Griffin, 483 U.S. at 873; New Jersey v. T.L.O., 469 U.S. 325, 351 (1985).

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To determine whether this doctrine applies, the court must inquire as to the purpose

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of the government’s actions at a programmatic level. Edmond, 531 U.S. at 46–47; see also

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United States v. Orozco, 858 F.3d 1204, 1212 (9th Cir. 2017). If the primary purpose is not

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a general interest in crime control, the court should then conduct a fact-specific analysis

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into the reasonableness of the program considering (1) the government’s interest, (2) the

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immediacy of the government’s interest, and (3) the intrusion into the individual’s privacy

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interests. Sanchez v. Cnty. of San Diego, 464 F.3d 916, 926–27 (9th Cir. 2006); Veronica

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Sch. Dist 47J v. Acton, 515 U.S. 646, 652–53 (1995).

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Here, considering the justification of Defendants’ actions, the Court finds its primary

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purpose is not crime control. Defendants argue that although there is an enforcement aspect

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of Defendants’ practice of tire chalking, there are other public interest motivations for the

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practice. (Doc. No. 6 at 20.) Specifically, chalking tires is intended to “maintain order in

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the public ways” and ensure the free flow of traffic. Id. Thus, the Court now examines the

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reasonableness of Defendants’ actions using the above factors.

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The Court turns first to analyzing the reasonableness of the government’s purported

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interest in tire chalking. Defendants’ stated interest in tire chalking is to maintain the free

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flow of traffic, preserve lawful order on the City’s pubic ways, and to sustain the

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“peaceable operation” of the city. (Doc. No. 6 at 20, 22.) These justifications demonstrate

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a valid governmental interest in the practice of tire chalking.

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However, the Court finds Plaintiffs’ privacy interests are more significant than

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Defendants purport. Defendants offer authority discussing the automobile exception and

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individuals’ diminished expectations of privacy in vehicles as compared to homes. See,

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e.g., Cardwell v. Lewis, 417 U.S. 583, 590 (1974); South Dakota v. Opperman, 428 U.S.

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364, 368 (1976). Although individuals maintain a decreased expectation of privacy in their

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vehicles, it does not eliminate their privacy expectations altogether. Given the
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consideration of the factors, the Court finds it is improper to dismiss Plaintiffs’ claims

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pursuant to the special needs doctrine at this juncture.

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C. Implied License

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Defendants also rely on the notion of an implied license or invitation for law

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enforcement to act as a private citizen while making contact with the vehicles. (Doc. No.

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6 at 25.) Specifically, Defendants analogize the police’s tire chalking here with the police’s

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ability to stand on an individual’s porch and knock on their front door, or a private citizen’s

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ability to touch another’s car to distribute advertising. Id.; see e.g., Florida v. Jardines, 569

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U.S. 1, 8 (2013). However, this implied license is not extended to any investigatory action.

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The Supreme Court noted, “[t]o find a visitor knocking on the door is routine . . . to find

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that same visitor exploring the front [yard] . . . would inspire most of us to, well, call the

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police.” Id. at 9. It is possible that law enforcement has an implied license to touch a vehicle

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in the same manner, and for the same purpose, as a private citizen distributing

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advertisements, but does not have an implied license to make contact for the purpose of

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investigating whether a violation of law has occurred. Defendants’ position seemingly

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ignores the purpose behind the two types of action: one is innocuous while the other is

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investigatory. On its face, the practice of chalking tires seems more investigatory than

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innocuous, however, the parties have not offered sufficient evidence to conclusively

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establish the matter. Thus, at this stage of litigation, Defendants are not entitled to dismissal

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of Plaintiffs’ under the doctrine of implied license.

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III.

San Diego Police Department as a Proper Defendant

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42 U.S.C. § 1983 permits suit against a “person” acting under the color of law. While

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local governmental units such as cities or municipalities are considered “persons,”

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municipal departments and sub-units are not. Compare Will v. Michigan Dept. of State

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Police, 491 U.S. 58, 70 (1989), with United States v. Kama, 394 F.3d 1236, 1239 (9th Cir.

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2005) (holding municipal police departments are not considered “persons” within the

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meaning of 42 U.S.C§ 1983).

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Here, the municipal police department, San Diego Police Department, is named as a

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defendant in addition to the municipality of the City of San Diego. (Doc. No. 1 ¶ 4.) For

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this reason, the Court GRANTS Defendants’ Motion to Dismiss the San Diego Police

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Department as an improper defendant WITHOUT LEAVE TO AMEND.

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CONCLUSION

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Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART

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Defendants’ motion to dismiss, (Doc. No. 6). The Court DENIES Defendants’ motion to

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dismiss on the basis Plaintiffs have stated a claim upon which relief could be granted. The

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Court DIMISSES the Defendant San Diego Police Department WITHOUT LEAVE TO

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AMEND.

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IT IS SO ORDERED.

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Dated: March 21, 2020

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