ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

[Dkt. Nos. 192, 196, 204]

DEAN D. PREGERSON, District Judge.

Presently before the Court are motions for summary judgment filed by Plaintiffs (Dkt. No. 196), Defendant City of Los Angeles (Dkt. No. 204), and Defendant Bank of America ("BANA") (Dkt. No. 192). Having heard oral arguments and considered the parties' submissions, the Court adopts the following order addressing all three motions.

I. BACKGROUND

Plaintiff Javier Hernandez owned and, with Plaintiff Brenda Hernandez, resided at a certain property on Leadwell St. in Van Nuys, CA. (Third Amended Complaint ("TAC"), ¶ 2.) Plaintiffs had purchased the property via a mortgage loan, secured by a deed of trust, that was originally held by Countrywide and later taken over by BANA. (Id. at ¶¶ 35-37; Decl. Javier Hernandez, Ex. B.) Countrywide recorded a notice of default in 2008. (Id. at ¶ 36.) BANA foreclosed on the loan; in 2011 the property was sold at auction to The Bank of New York Mellon ("Mellon"), and a trustee's deed upon sale was recorded. (BANA's RJN, Ex. A.)

Plaintiffs refused to vacate the property. (TAC, ¶ 40.) Mellon filed an unlawful detainer action against Plaintiffs, and in June 2012 the Superior Court issued a judgment of possession in Mellon's favor. (BANA's RJN, Exs. B-C.) The court also issued a writ of possession authorizing eviction and directing the sheriff to enforce compliance, on the condition that no lockout should take place prior to July 15, 2012. (Id., Ex. D.) After the auction sale and the judgment, BANA and Plaintiff Javier Hernandez continued to negotiate a possible loan modification; however, in October 2012 the bank ultimately rejected the application for modification, citing an inability to confirm the incomes of certain of Plaintiff's family members. (Decl. Javier Hernandez, Exs. C-E.) In the letter rejecting the application, BANA informed Plaintiff that "your account is no longer being reviewed for any workout assistance" and "we are required . . . to proceed with the eviction process." (Decl. Javier Hernandez, Ex. E.) One news source reported that a BANA spokesperson had stated in an email that "it is the bank's policy to avoid foreclosure sales or displacement of homeowners or tenants around the Christmas holiday," although the bank declined to discuss specific dates. (Supp. Decl. Javier Hernandez, Ex. 1.) The Los Angeles Sheriff's Department ("LASD") ultimately carried out the eviction on December 27, 2012. (Decl. Javier Hernandez, ¶ 11.)

Plaintiffs now sue for alleged First and Fourth Amendment violations, as well as violations of anti-trust law and California's Unfair Competition Law (UCL). (Compl., generally.)

II. LEGAL STANDARD

Summary judgment is appropriate where the materials in the record show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986).

Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. Summary judgment is warranted if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. There is no genuine issue of fact "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III. DISCUSSION

A. First and Fourth Amendment Violations

1. BANA as a State Actor

Plaintiff sues BANA under 42 U.S.C. § 1983, which provides for relief against persons who violate a plaintiff's federal constitutional rights under color of state law. Ordinarily, as a private business organization, a bank does not act "under color of state law." However, where there is "significant state involvement" in a private party's action, it may be considered "under color of state law" for § 1983 purposes. Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983) (internal quotation marks omitted). Thus, for example, state action may be found where a state "devolves upon a [private] political organization the uncontested choice of public officials," Terry v. Adams, 345 U.S. 461, 484 (1953), or where the private party has a "symbiotic" lessor-lessee relationship with a state agency, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175 (1972), or where there is a conspiracy between the private actor and a law enforcement officer to practice private discrimination with the threat of arrest behind it. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970).

In Howerton, this last principle was in play: a landlord conspired with a police officer to evict the plaintiffs, allegedly without the required due process of law. There, the court noted that "[p]olice were on the scene at each step of the eviction," "the police officer . . . privately approached the Howertons and recommended that they leave the trailerhouse," and "he inquired whether the tenants had found a new rental." 708 F.2d at 384. Thus, his actions "created an appearance that the police sanctioned the eviction," although the eviction was in fact a private action.

Here, the eviction was not a private matter. It was carried out by LASD, pursuant to a court order issued in favor of Mellon. But the eviction was requested, apparently, by a lawyer affiliated with both Mellon and BANA. (Decl. Tuan Uong, Ex. K.) BANA also took part directly in the eviction by having its contractors retrieve Plaintiffs' belongings and move them to a storage unit. Because the removal of Plaintiffs' possessions happened under the apparent authority of LASD and/or LAPD, it can qualify as state action on BANA's part.

Plaintiffs' other primary allegation of a constitutional violation, that BANA conspired with the LAPD to harass and silence Plaintiffs because they protested BANA directly and/or because they were involved in the "Occupy" movement against inequality, could also certainly qualify as state action, for the same reason. And allegation that a private entity uses law enforcement as a stalking horse to pursue private ends is an allegation that the private entity takes "state action" for § 1983 purposes.

The Court therefore turns to the substantive evidence supporting these allegations.

2. First Amendment Claim

Plaintiffs allege that BANA and LAPD conspired to chill the free speech, association, and petition rights of protesters, including themselves, by:

(TAC, ¶¶ 78, 84-85.)

In Plaintiffs' own motion and reply, however, the Court has difficulty discerning any coherent First Amendment argument, let alone undisputed evidence showing that BANA and LAPD conspired to take the actions described above. Plaintiffs assert that "Bank of America had the Los Angeles Police Department harass the Plaintiffs in retaliation for protesting illegal foreclosures." (Pls.' Mot. Summ. J. at 1.) However, the motion is almost entirely free of citations to a factual record that would support this contention. The same is true of Plaintiffs' oppositions to BANA and LAPD's motions. It is not the Court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996).

Nonetheless, in the interest of justice, the Court examines the record evidence in the light most favorable to Plaintiffs to determine whether their claims could survive Defendants' motions for summary judgment. That examination shows that there is simply no evidence showing that BANA coordinated a campaign of harassment and retaliation against Plaintiffs. Plaintiffs provide evidence to show, at best, that Javier Hernandez is a member of Occupy and has protested "in front of Bank of America on at least one occasion" (Decl. Javier Hernandez, ¶¶ 5-6, 36); that he and Brenda Hernandez staged protests against the foreclosure at his home (id. at ¶¶ 30-35); that LAPD Officer Gavin1 approached the house on October 4, 2012 and made some belligerent statements, including telling the other protesters that Plaintiffs were "behind 48 months" on their payments and saying "I wish I could live like that" (id. at ¶¶ 38-49; id., Ex. I); and that the following interactions with law enforcement occurred during the six-month protest period: LAPD and Child Protective Services visited the house, allegedly at midnight,2 police investigated a sanitation complaint regarding couches in the roadway, "supporters" of the protest were stopped by police three times, and items including a "wall," some couches, and a "portrait," and police drove by the house numerous times. (Id. at ¶ 50.)

It is entirely possible that some of these actions were harassing or intimidating — Officer Gavin, in particular, is alleged to have taunted protesters and belittled their right to free speech. (Id. at ¶¶ 38-49; id., Ex. I.) What is lacking, however, is any evidence tying this behavior to BANA. Plaintiffs argue that a letter from BANA's attorney to LASD shows that there was "coordination," because in that letter the attorney suggests that her firm will keep the timing of the eviction "highly confidential," so as to avoid "unwanted attention." (Decl. Lenore Albert, Ex. A at 30.) But the fact that the bank's attorney thought LASD might want to avoid unwanted attention during the (presumably from protesters) simply does not lead to an inference that BANA engaged in a months-long campaign of harassment coordinated with LAPD, a different agency, long before the letter was written.

Nor does the fact that Javier Hernandez protested "in front of Bank of America" one time lead to the conclusion that BANA took notice of the protest, identified Mr. Hernandez, connected him to the property, and/or had the kind of control or influence over (or even relationship with) LAPD as an entity that would enable the coordinated campaign of harassment and intimidation that Plaintiffs allege.

Plaintiffs also point to the fact that Officer Gavin allegedly knew that Plaintiffs had not made mortgage payments for 48 months as evidence that BANA must have supplied him with that information and therefore must have been the puppetmaster behind his actions and the actions of other LAPD officers. (Pls.' Opp'n to LAPD's Mot. at 6.) But Defendants point out that Plaintiffs themselves had publicized the fact that they had stopped paying their mortgage, and Gavin stated on video that he had previously done undercover work and surveilled the group. (Suppl. Decl. Tuan Uong, Exs. S, T; Decl. Javier Hernandez, Ex. I.) Defendants also point out that call logs show no communications between BANA and LAPD as to the property.3 (Decl. Tuan Uong, Ex. R.) There is therefore no reason beyond the speculative to conclude that Officer Gavin got his information from BANA.

As to BANA, Plaintiffs' evidence creates no more than a "metaphysical doubt" as to the possibility of a conspiracy. Matsushita, 475 U.S. 574, 586 (1986). A rational trier of fact could not conclude, on this evidence, that BANA acted in concert with LAPD to violate Plaintiffs' First Amendment rights.

As to LAPD, nothing in Plaintiffs' evidence suggests a policy or custom of retaliation, harassment, or intimidation against anti-foreclosure protesters, as would be required to hold the City liable for the acts of individual LAPD officers.4 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978) (municipality may be held liable for official policy or unofficial custom, but not for individual torts of government agents).5 Thus, a rational trier of fact could not conclude that the City acted to violate Plaintiffs' First Amendment rights.

3. Fourth Amendment Claim

Plaintiffs also allege that Defendants acted to deny them their Fourth Amendment right to be free of unreasonable search and seizure during the eviction. Although the exact gravamen of the claim is not entirely clear, the TAC appears to allege four kinds of Fourth Amendment violation: entry without a warrant or exigent circumstances; seizure of the home; seizure of possessions; and excessive force. (TAC, ¶¶ 97-122.)

LASD, assisted by LAPD officers, evicted Plaintiffs from the house pursuant to a statutory scheme specifically designed to deal with situations where a former owner refuses to vacate a house after foreclosure. See Cal. Civ. Proc. Code § 1166a (if court in unlawful detainer action finds for plaintiff, "order shall be entered for the immediate possession of the premises"); § 712.010 ("After entry of a judgment for possession or sale of property, a writ of possession or sale shall be issued by the clerk of the court . . ."); § 712.020 (writ of possession requires levying officer to enforce the judgment). Plaintiffs do not challenge this scheme on its face.

A Fourth Amendment claim as to entry into the home or seizure of the home will necessarily fail if Plaintiffs do not have a possessory right to the home. Persons in a private residential property without a legal right of possession, such as squatters, do not have an objectively reasonable expectation of privacy. Zimmerman v. Bishop Estate, 25 F.3d 784, 787 (9th Cir. 1994). Therefore, they cannot object to entry and search on Fourth Amendment grounds. Similarly, a person without a possessory interest in a property necessarily cannot object to its seizure. "A seizure of property . . . occurs when there is some meaningful interference with an individual's possessory interests in that property." Soldal v. Cook County, 506 U.S. 56, 61 (1992) (internal quotation marks omitted).

Plaintiffs appear to argue that they did have a right of possession, and that the entry and seizure were unlawful, because the writ of possession authorizing the eviction was invalid (because it lacked the debtor's address), and LASD officials knew that it was invalid. (Pls.' Opp'n to LAPD's Mot. at 9; Decl. Lenore Albert, Ex. A at 21-23 (emails showing that some LASD personnel were concerned about the writ and felt it should have been rejected).) But, first, the Court cannot consider the emails, which lack foundation showing that they even refer to the Leadwell St. property at all,6 are hearsay,7 and are not the best evidence of the contents of the writ.8 Plaintiffs point to no copy of the writ showing that the writ did not have their address on it. The copy of the writ submitted as an exhibit by Defendants, on the other hand, plainly does have Plaintiffs' address on it. (BANA's RJN, Ex. D) Nor do Plaintiffs allege that BANA's exhibit is fraudulent or inauthentic.9

Second, what stripped Plaintiffs of their possessory interest in the house was not the writ, which merely authorized the eviction, but the foreclosure sale.10 There is no evidence suggesting the foreclosure was improper, and the state court issued an order in the unlawful detainer action explicitly giving Mellon, not Plaintiffs, the right of possession. There is no allegation or evidence that the court order was improper or invalid. Plaintiffs therefore did not have a possessory interest in the house as of December 27, 2012 and cannot assert a Fourth Amendment right as to either privacy or the seizure of the home.

Plaintiffs still maintained a possessory right to their personal property, of course. As BANA itself acknowledges, its "contractors . . . moved the personal possessions remaining on the Leadwell Property to a U.S. Storage Centers facility." (BANA's Mot. at 14.) They did so pursuant to Cal. Civ. Proc. Code § 1174(e)-(l), which allows a landlord or judgment creditor11 to remove and store property left behind by former residents. Plaintiffs do not challenge the constitutionality of § 1174, which provides that the landlord or judgment creditor must return the property on demand.

Of course, Plaintiffs presumably left their possessions behind because they were forced to leave quickly by the sheriff's deputies. Nonetheless, BANA, acting on behalf of Mellon, had the right to remove property left behind in the house, to which Plaintiffs did not have a possessory right — including the right to store their possessions there.12 Because the removal itself was lawful, because Plaintiffs could have removed their possessions in any of the months prior to the eviction, and because the possessions were left behind on Mellon's property, BANA did not conspire with the LASD or the LAPD to effect an unreasonable seizure of Plaintiffs' property.13

Finally, Plaintiffs appear to allege an excessive force claim under the Fourth Amendment:

(Pls.' Reply at 4; see also Opp'n to LAPD's Mot. at 7.)

Plaintiffs point to no case, however, in which the presence of a large number of officers or particular equipment has been the sole basis for a Fourth Amendment excessive force claim, and the Court can find no such case. Javier Hernandez admitted in his deposition that the extent of Plaintiffs' interaction with the sheriff's deputies on the morning of the eviction was that "they came in and they asked us to leave," and Plaintiffs did leave, peacefully.14 (Suppl. Decl. Tuan Uong, Ex. T at 37.) No evidence of violence, or even a threat of violence beyond the presence of armed officers, is presented in the record. There is no excessive force claim.

No rational trier of fact could conclude that there was a Fourth Amendment violation on this record.

B. Antitrust Claim

Plaintiffs' antitrust claim was dependent on arguments about the market share of former defendant Public Storage. As Public Storage was not the storage company involved in this case and is no longer a party (see Dkt. Nos. 184, 189), there would seem to be no basis for the claim. Plaintiffs do not defend the antitrust claim in their opposition to BANA's motion, and the Court deems the claim abandoned.

C. UCL Claim

Section 17200 of the UCL, under which Plaintiffs sue, forbids "any unlawful, unfair or fraudulent business act or practice." Cal. Bus. & Prof. Code § 17200. Plaintiffs allege that the eviction itself was unlawful under state law, but, as discussed above, it was not.

Plaintiffs also allege that Public Storage's business practices are unfair, but, as noted above, Public Storage is no longer a party here.

Nor have Plaintiffs presented evidence the BANA was behind a scheme to harass and intimidate protesters. Evidence that some harassment took place, with nothing tying it to the bank, cannot support a UCL claim.

Finally, Plaintiffs argue that the eviction was unlawful or unfair because BANA had allegedly announced a moratorium during the holidays. However, no specific dates were attached to the announcement, (Supp. Decl. Javier Hernandez, Ex. 1), and there is no evidence that Plaintiffs knew of the moratorium, assuming it existed and still applied on December 27, 2012. (See Pls.' Stmt. Genuine Disputes Fact at 4 (acknowledging that Javier Hernandez was not aware of a moratorium).) Thus, they could not have relied on it to their detriment.

No rational trier of fact could find a violation of the UCL on this record.

IV. CONCLUSION

The Court GRANTS summary judgment to Defendants and DENIES summary judgment to Plaintiffs.

IT IS SO ORDERED.