Modacure v. B&B Vehicle Processing, Inc.

Filed 12/21/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

JOANNA MODACURE, Plaintiff and Appellant, A151799 v. B&B VEHICLE PROCESSING, INC. et (Alameda County al., Super. Ct. No. RG15781515) Defendants and Respondents.

Plaintiff and appellant Joanna Modacure (plaintiff) appeals from the trial court’s dismissal of her Second Amended Complaint (SAC) after the court sustained the defendants’ demurrer without leave to amend. We reverse as to one of the two causes of action in the SAC. On review of a demurrer sustained without leave to amend, we accept the factual allegations of the complaint as true and review the pleading de novo to determine whether the facts as pleaded state a cause of action. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal 4th 962, 966–967; Satten v. Webb (2002) 99 Cal.App.4th 365, 374–375.) “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law or fact.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The SAC, filed March 2017, alleges that defendant City of Oakland (City) contracted with defendant B&B Vehicle Processing (B&B) to tow vehicles with more

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than five parking citations.1 In 2010 a “black chev” owned by plaintiff was towed and sold due to $841 in parking tickets and “boot fees.” Appellant was not given notice that proceeds from the sale of the car were used only to pay B&B for towing and storage, and not to pay off the unpaid tickets. In July 2015, a “2002 black Mercedes” owned by plaintiff was towed due to $1244 in unpaid tickets and “boot fee[s].” Plaintiff was unable to afford to recover the Mercedes once she discovered the parking tickets associated with the “black chev” remained unpaid. The SAC asserts two causes of action. The first, for conspiracy (42 U.S.C. § 1985(3)), alleges the defendants entered into “hidden agreements to allow some defendants to keep proceeds from lien sales of vehicles” in violation of Vehicle Code section 22851.1.2 The SAC alleges the defendants met in 2013–2015 “to agree to hidden agreement not to enforce state law in paying off unpaid parking tickets by not monitoring or obtaining revenue from lien sales conducted by” B&B. The SAC also alleges plaintiff was not notified of the amount for which her car was sold (presumably the “black chev”) or that “there were no extra funds to pay unpaid parking tickets in accord with” section 22851.1. As to the second cause of action, for denial of due process and equal protection, the SAC alleges defendants prevented plaintiff from recovering her Mercedes by failing to pay off the unpaid parking tickets on the “black chev” in 2010, in violation of section 22851.1. The SAC also alleges plaintiff was not notified “about unpaid parking tickets not paid off in 2010.” All four defendants demurred to the SAC, and the trial court sustained the demurrer without leave to amend. The court dismissed the case against defendants and the present appeal followed.