NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 12 2016
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
JAMES JOSEPH TIMPHONY and No. 15-55144
SCARLET TIMPHONY,
D.C. No.
Plaintiffs-Appellants, 2:14-cv-04855-GW-AS
v.
MEMORANDUM*
CITY OF PASADENA, a public entity and
RAFAEL VERDUZCO,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted October 3, 2016**
Pasadena, California
Before: REINHARDT, FERNANDEZ, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Scarlet and James Timphony appeal from the District Court’s dismissal of
three claims arising from the towing of their car in 2014. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm the judgment of the District Court.
1. The District Court correctly determined that Plaintiffs may not bring a
private civil suit for damages under California Penal Code § 146. Under California
law, a criminal statute authorizes private civil suits only where the legislature
intended to create a private right of action or where compelling reasons of public
policy justify the recognition of such a right. See Animal Legal Def. Fund v.
Mendes, 160 Cal. App. 4th 136, 142 (Ct. App. 2008); Vikco Ins. Servs., Inc. v.
Ohio Indem. Co., 70 Cal. App. 4th 55, 62-63 (Ct. App. 1999). The text and
legislative history of § 146 do not suggest that the legislature intended to create a
private right of action. The statute simply creates criminal liability for certain
forms of official misbehavior. Nor is there a compelling reason of public policy to
authorize civil suits under § 146 given the remedies available under 42 U.S.C. §
1983. The California Supreme Court’s decision not to recognize a private right of
action for damages under a state constitutional provision in Katzberg v. Regents of
Univ. of California, 58 P.3d 339 (Cal. 2002), does not support the recognition of a
private right of action under § 146.
2
2. The District Court was also correct in its conclusion that Verduzco is
entitled to qualified immunity with respect to Plaintiffs’ claim under 42 U.S.C. §
1983. “The doctrine of qualified immunity protects government officials ‘from
civil liability insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Although towing constitutes a seizure under the Fourth
Amendment, it is well established that it is reasonable if it serves the public
purposes of easing traffic flow, promoting public safety and convenience, or
mitigating the risk of vandalism or theft. See South Dakota v. Opperman, 428 U.S.
364, 369 (1976). A reasonable officer in Verduzco’s situation could believe he
was acting legally in towing the car despite its driver’s protest. A reasonable
officer, moreover, would not believe he was violating the Constitution in refusing
to engage in on-the-spot adjudications of evidence and concluding that any dispute
over the validity of the towing could be determined later by other municipal
authorities.
3. The District Court correctly dismissed Plaintiffs’ claim for intentional
infliction of emotional distress. In order to state a claim for intentional infliction of
emotional distress in California, a plaintiff must allege, among other things,
3
“outrageous” conduct by the defendant. Trerice v. Blue Cross of Cal., 209 Cal.
App. 3d 878, 883 (Ct. App. 1989). The conduct at issue here does not rise to that
level.
The order of the district court is, therefore, AFFIRMED.
FILED
OCT 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
REINHARDT, J., dissenting:
Timphony was present when his car was being towed. He told the officer
that he had paid the outstanding parking tickets that supposedly authorized the
towing, and that the receipts to prove it were in the glove compartment. The
officer refused to allow him to retrieve those receipts and refused to look at them
before proceeding with the towing. This conduct on the part of the parking
enforcement officer was objectively unreasonable. I would, therefore, reverse the
District Court’s judgment that the officer is entitled to qualified immunity. At the
very least, I would grant the Plaintiffs leave to amend their complaint so that they
could allege facts that would make it even clearer that the officer’s decision was
objectively unreasonable.
4
5