City Files Motion to Dismiss Mitchell v. Los Angeles, Hearing Set for Monday, May 9 at 10 a.m.

California-central(See Gale Holland’s excellent story in the Times for background).

Today the City of Los Angeles, defendant in Carol Sobel et al.’s latest suit on behalf of homeless people, filed a motion to dismiss many of the causes of action in the complaint. There is also an associated request for judicial notice regarding one of the facts recited in the motion. The issues seem mostly technical and beyond my capacity to interpret, but I will venture some comments on one claim by the City. They seem to assert (at p.5, L.9) that one of the causes should be dismissed because the initial complaint didn’t argue that the City didn’t have a valid reason for seizing and destroying the property at issue. Specifically that
Plaintiffs never plead that all of the property seized was lawful to possess, and was clean or at least uncontaminated by direct contact with or close proximity to the hazardous materials common on a Skid Row street – feces, rats, maggots, blood, etc. – such that the property did not pose an immediate hazard to health.
And further, that because it’s at least plausible that the property was contaminated just by being on Skid Row, the only allowed relief from the destruction of their property is money damages from the City. I don’t see how this can be right, though.

If I park my car on Towne Street, it’s plausible that it’s contaminated by feces or whatever, so if the City picks it up with a crane and crushes it, leaving me stranded miles from home, my only recourse is to sue them for the price of the car? If they wanted to they could crush everyone’s car in the entire City as long as they were willing to pay? And there’d be nothing else they were doing wrong? They could go to Black Lives Matters protests and destroy the cars of everyone there just for the price of the cars? That’s not reasonable.

A fortiori it seems to me that the City’s argument must fail when we’re talking about all of someone’s worldly possessions. The City actually seems to be arguing that they can destroy everything someone owns, their medicine, their ID, their clothing, and not have to suffer any consequences beyond reimbursing their victim for the cash value of the stuff, no matter how much damage is done. They could do this on a systematic basis just to homeless people? It’s not plausible at all. Sometimes it’s not necessary to understand an argument to know that it’s wrong. If the conclusion is as wrong as this there must be a flaw in the reasoning, the discovery of which I’ll leave to the experts.

Here’s the whole argument:


Plaintiff’s due process claim is based on allegations that property is seized and destroyed without notice. FAC ¶ 81. But the allegations are not specific enough to state a wrongful seizure. In Los Angeles, “In the event Personal Property placed in a Public Area poses an immediate threat to the health or safety of the public, it may be removed without prior notice and discarded.” Los Angeles Municipal Code (“LAMC”) § 56.11.3(f). Plaintiffs are charged with notice of the law. People v. O’Brien, 96 Cal. 171, 176 (1892). Plaintiffs never plead that all of the property seized was lawful to possess, and was clean or at least uncontaminated by direct contact with or close proximity to the hazardous materials common on a Skid Row street – feces, rats, maggots, blood, etc. – such that the property did not pose an immediate hazard to health. Plaintiffs only plead that they were homeless and their property was seized. But “the People have the right to detain any property which it is unlawful to possess, and such right exists whether the property was lawfully seized or not.” People v. Superior Court (McGraw), 100 Cal. App. 3d 154 (1979). If Plaintiffs do not have the facts to allege that the seizure itself is the problem, then state law processes provide the remedy for any wrongful destruction of property that is not an immediate threat to health or safety. California law recognizes an action for claim and delivery, also known as replevin: “A person whose property is illegally seized may replevy the same from the officer seizing it, or, if it has been destroyed, he may have an action for its value.” Silva v. Macauley, 135 Cal. App. 249, 253 (1933) (internal quotes omitted); Cal. Civ. Proc. Code § 340. Intentional destruction of property by a government employee does not violate federal due process under the Fifth Amendment if the state provides a remedy for the loss. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Because the Fourteenth Amendment makes due process applicable to the states, and a state process exists, the Second Cause of Action should be dismissed.

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