Studio 45 Discotheque, Inc., Etc. v. State of New Jersey ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1500-22
STUDIO 45 DISCOTHEQUE,
INC., owned and operated by
EDUARDO GONZALEZ,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
HUDSON COUNTY
PROSECUTOR'S OFFICE,
and UNION CITY POLICE
DEPARTMENT,
Defendants-Respondents.
___________________________
Submitted October 16, 2024 – Decided November 13, 2024
Before Judges Gilson, Firko, and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4458-20.
Yasmin Estrella, attorney for appellant.
Matthew J. Platkin, attorney for respondents State of
New Jersey and Hudson County Prosecutor's Office
(Donna Arons, Assistant Attorney General, of counsel;
Phoenix N. Meyers, Deputy Attorney General, on the
brief).
Sheffet and Dvorin, PC, attorneys for respondent Union
City Police Department (Ethan Jesse Sheffet, on the
brief).
PER CURIAM
Plaintiff Studio 45 Discotheque, Inc. and Eduardo Gonzalez appeal from:
(1) the March 11, 2022 order dismissing the second amended complaint against
defendant Hudson County Prosecutors Officer (HCPO) for failure to state a
claim; (2) the June 15, 2022 order denying his motion to reconsider the March
11, 2022 order; (3) the September 9, 2022 order dismissing default against
defendant Union City Police Department (UCPD) and allowing it time to
respond because UCPD was not properly named and the second amended
complaint was not properly served on the clerk; and (4) the December 8, 2022
order dismissing the second amended complaint against UCPD and denying his
motion to amend the second amended complaint to name the City of Union City
as a direct defendant. We affirm all of the orders under review.
I.
Factual Background
Gonzalez operated an after-hours bar and was under investigation for
selling alcohol without a license. On June 1, 2010, at approximately 2:00 a.m.,
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UCPD executed a warrant to search Studio 45 for violations of the Alcoholic
Beverage Control (ABC) Act,1 namely, the sale of alcoholic beverages without
a license. Gonzalez owned and operated Studio 45. The UCPD seized bottles
of beer, alcohol, drink mixers, non-alcoholic beverages, kitchen equipment, bar
furniture, and electronic equipment. The UCPD kept control of the premises.
The legality of the seizure was never challenged.
Gonzalez was charged with multiple fourth-degree offenses for the illegal
sale and distribution of alcoholic beverages without a license and maintaining a
nuisance. On June 22, 2012, he was ultimately convicted on fourth-degree
charges of distributing alcohol without a license and sentenced to three years'
probation.
Meanwhile, on August 18, 2010, seventy-nine days after the property was
seized, Gonzalez submitted a Request for Return of Property form to the HCPO,
requesting the return of property seized from Studio 45. The form named the
"Union City Municipal Court" as the entity which seized the property.
1
N.J.S.A. 33:1-1 to -103. The ABC Act established the Division of Alcohol
Beverage Control to "strictly regulate alcoholic beverages to protect the health,
safety and welfare of the people of this State." N.J.S.A. 33:1-3.1(b)(1). The
ABC Act also directs officers to "investigate, under proper search warrant when
necessary," whenever they believe there is reasonable grounds to believe
persons are committing or have committed a misdemeanor under the ABC Act.
N.J.S.A. 33:1-66(a).
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On August 27, 2010, eighty-eight days after seizure of the property,
Gonzalez filed a Tort Claims Act (TCA) notice with the City of Union City,
alleging loss of business, income, and salary, due to the property seizure and
claiming $10 million in damages. In the TCA notice, Gonzalez alleged that the
police "planted, fabricated, adultered [sic], what they later claimed were
alcoholic beverages in the premises" at the direction of the Union City mayor
and UCPD with the "expressed objective of closing the business" and destroying
his "livelihood and earnings." The TCA notice named the City of Union City,
its mayor, its Chief of Police of the UCPD, and the "[c]ommissioners" as the
parties at fault.
The TCA notice described Gonzalez's injuries as "[p]sychological and
mental distress, injuries, anguish, humiliation, depression, anxiety, panic
attack," and loss of "property and . . . profits of the[] property, both present and
in [the] future." Gonzalez estimated the value of the property was "one million
dollars." He also claimed his wages were $300,000.00 per week as manager of
Studio 45, and his wages were lost "forever." The form was not signed.
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After a forfeiture action 2 brought by HCPO under N.J.S.A. 2C:64-1 to -13
was dismissed when the State failed to appear at the June 26, 2012 hearing,
Gonzalez moved to "repossess" the seized property, while his criminal appeal
was pending.
On October 24, 2012, HCPO attempted to reinstate the forfeiture action.
On December 7, 2012, HCPO's motion to reinstate the forfeiture action was
denied. On January 11, 2013, the court denied Gonzalez's motion to "repossess"
the seized property due to the pending appeal of his criminal conviction. The
court ordered that "all evidence shall continue in possession of [the] State until
appellate proceedings are exhausted."
After his conviction was affirmed, State v. Gonzalez, No. A-5981-11
(App. Div. Oct. 25, 2013), Gonzalez again moved to repossess the seized
property. On June 20, 2014, the motion was again denied. On July 25, 2014,
Gonzalez's motion for reconsideration was denied. In 2015, Gonzalez appealed
to this court from the denial of his motion. On March 4, 2016, we affirmed
denial of Gonzalez's motion to compel the State to compel return of the property,
State v. Studio 45 Discotheque, Inc., A-0247-14 (App. Div. Mar. 4, 2016). We
2
Docket No. HUD-L-4600-10. The forfeiture matter was filed while the
criminal matter was pending.
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determined that the seized property was being held "temporarily" in accordance
with a Directive issued by the Office of the Attorney General, which required
the State to retain evidence for five years "from the date of conviction or . . .
expiration of sentence, whichever is later." See Off. of the Att'y Gen., Law Enf't
Directive No. 2011-1, Attorney General Guidelines for the Retention of
Evidence (rev. Jan. 6, 2011). Thus, the seized property could not be released
until June 22, 2020—five years after Gonzalez's sentence was complete.
On August 28, 2020, after the five-year period expired, Gonzalez sent an
email to the HCPO requesting return of the seized property. He attached the
inventory of seized items prepared on August 18, 2020. On October 2, 2020,
Gonzalez followed up in an email asking "[w]hen should we expect the property
to be returned . . . ?" Following this email, Gonzalez "assumed that the [HCPO]
was not intending to return [his] property."
On December 4, 2020, Gonzalez filed a motion seeking an order
"commanding" the HCPO "and/or [UCPD] to release all property that was seized
back on June 1, [2010], by the [UCPD]." Although the caption to the motion
contained the forfeiture action's docket number, the filing was listed as a
"complaint with jury demand" on eCourts and assigned a new docket number,
HUD-L-4458-20, which is the subject of the matter under review. This filing
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had the forfeiture action's caption and did not name HCPO or UCPD as parties.
In a letter dated January 4, 2021—mistakenly dated 2020—Gonzalez stated that
the caption was correct.
On February 11, 2021, Gonzalez filed an order to show cause (OTSC)
under the forfeiture action's docket number that only named the State and failed
to name either HCPO or UCPD as parties. The filing included a verified
complaint for an order seeking to compel the State to return the seized property,
or in the alternative, reimburse Gonzalez for any item not returned. Gonzalez
also served HCPO and UCPD with the OTSC and verified complaint.
On April 21, 2021, under the forfeiture action's docket number, Gonzalez
requested default be entered against HCPO and UCPD for their failure to
respond to the verified complaint and OTSC. Gonzalez later withdrew this
request.
On June 18, 2021, the complaint under the new docket number—HUD-L-
4458-20—was dismissed without prejudice for lack of prosecution. On July 20,
2021, Gonzalez filed a motion under the new docket number to reinstate the
complaint and OTSC under the forfeiture action matter, again serving HCPO
and UCPD, and requested leave to "amend the [OTSC], verified complaint, and
default judgment to list the parties correctly." On the same day, Gonzalez
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requested an entry of default against HCPO and UCPD in the forfeiture action,
filing the request under the new docket number but captioning it with the
forfeiture action's docket number.
On August 5, 2021, Gonzalez filed an OTSC and verified complaint under
the new docket number, identical to the February 11, 2021 forfeiture action's
complaint and OTSC, apart from naming himself as plaintiff and the State as
defendant. That same day, Gonzalez also moved for the entry of default, under
the new docket number, against HCPO and UCPD in the forfeiture action.
On August 6, 2021, in an order entered under the new docket number, the
court granted Gonzalez's motion to reinstate the OTSC and verified complaint
under the forfeiture action but denied "the motion to [enter] default filed on
April 22, 2021, and to amend the [OTSC], verified complaint, and default
motion." In addition, the court granted the motion filed under the new docket
number to enter default judgments against defendants, the State of New Jersey,
HCPO, and UCPD (collectively defendants) under the forfeiture action's docket
number.
On September 24, 2021, the State and HCPO moved to vacate the default
judgments entered against them, extend time to file responsive pleadings, and
dismiss Gonzalez's complaint. On October 12, 2021, Gonzalez filed a second
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amended complaint under the new docket number, without seeking leave of
court. In count one, Gonzalez alleged defendants "have continued to unlawfully
deprive" him of his property "without due process of law in violation of the
Fourteenth Amendment to the Constitution of the United States and in violation
of 42 U.S.C. § 1983."
Count two similarly alleged defendants' unlawful retention of Gonzalez's
property "valued well over $265,000[.00] is excessive in comparison" to his
sentence of probation.
Count three alleged that defendants have "converted [Gonzalez's] property
into [their] own without a court order or an opportunity for [Gonzalez] to be
heard."
Count four alleged common law fraud, claiming "defendants intended to
deceive [Gonzalez] into believing that the [Law Enf't Directive No. 2011-1] was
applicable" in this instance, and that defendants would return [his] property after
five years.
On October 25, 2021, the court heard argument on the State's motion to
dismiss Gonzalez's amended complaint for failure to state a claim. The court
vacated the default judgment against defendants and allowed them time to file a
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responsive pleading. Defendants withdrew their motions to dismiss the
complaint, without prejudice.
On November 29, 2021, Gonzalez requested that the court enter default
judgments against the State and UCPD but not HCPO. That same day, HCPO
on behalf of itself and the State, moved to dismiss Gonzalez's "amended"
complaint under Rule 4:6-2(e), maintaining it had not received any notice that a
lawsuit had been filed. HCPO further noted it did not have the seized property
in question. The next day, November 30, 2021, default judgment was entered
against UCPD.
At a hearing held on January 7, 2022, Gonzalez alleged the Hudson
County Prosecutor, in his personal capacity rather than his official capacity, was
also liable and requested leave to amend his pleadings to name the prosecutor
as a direct defendant. In response, HCPO advised the court that the evidence
and property detective "had never received any sort of inventory or letter" from
Gonzalez.
On March 11, 2022, HCPO's motion to dismiss the amended complaint
was granted. In an accompanying memorandum of decision, the court analyzed
Gonzalez's claims for alleged violations of: 42 U.S.C. § 1983 and Fourteenth
Amendment due process claims, the Eighth Amendment, his right to be free of
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excessive fines, conversion, and common law fraud. The court held HCPO was
not a "person" under § 1983, and HCPO was "acting as an arm of the State when
prosecuting [Gonzalez]."
The court also found Gonzalez's complaint was "time-barred" under the
TCA and rejected his argument that he filed a timely notice of tort claim. The
court reasoned Gonzalez's own exhibits showed his purported TCA notice was
"sent to the wrong email address." The court highlighted that Gonzalez's
counsel sent the notice to "espinel@hcpo.org" when the request for return of
property form should have been emailed to "cespinel@hcpo.org."
The court rejected Gonzalez's argument that the ninety-day deadline to
file the TCA notice would have been January 21, 2021, based on Gonzalez's date
of accrual calculation starting in late October 2020, when "he assumed defendant
[HCPO] was in fact intending on depriving him of his property without an
opportunity to be heard." The court emphasized the January 21, 2021 date at
that point "was over a year ago."
In rejecting Gonzalez's argument that he showed substantial compliance
with the TCA notice requirements, the court concluded Gonzalez's filing of a
complaint was not a substitute, citing Guzman v. City of Perth Amboy, 214 N.J.
Super. 167, 171-72 (App. Div. 1986). The court found that even if the TCA
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applied, Gonzalez's claim would be time-barred. The second amended
complaint was dismissed without prejudice for failure to state a claim pursuant
to Rule 4:6-2(e). Gonzalez filed a motion for reconsideration, which was denied
on June 15, 2022.
On July 20, 2022, UCPD filed a notice of motion to vacate the default
judgment entered against it and allowing it time to file a responsive pleading.
At the August 5, 2022 hearing, counsel for the City of Union City argued that
suing UCPD was inappropriate, and the correct party in interest was the "City
of Union City." Although counsel represented HCPO and the State in the prior
hearing, he explained the City of Union City had not responded to the complaint
because the initial filing did not name it as a party. The court agreed that UCPD
was "not even a legal entity that should have been even named in the complaint,
that was never properly amended. Never served." On September 9, 2022, the
court granted the motion.
On September 12, 2022, UCPD filed a motion to dismiss Gonzalez's
amended complaint. Gonzalez opposed the motion and filed a cross-motion,
seeking leave to amend the amended complaint "to name [the] City of Union
City as [a] direct [d]efendant and to raise further causes of action." On October
20, 2022, the court heard arguments on the motions and reserved decision.
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On December 8, 2022, the court granted UCPD's motion to dismiss
Gonzalez's complaint and denied Gonzalez's cross-motion. Memorializing
orders were entered. This appeal followed.
On appeal, Gonzalez argues the trial court erred:
(1) in finding HCPO was not a person under 42 U.S.C.
§ 1983 and thus not liable;
(2) in finding UCPD was not liable under 42 U.S.C. §
1983 because it was time-barred by the statute of
limitations;
(3) in finding HCPO not liable under the TCA because
the claims are time-barred pursuant to the TCA;
(4) in denying his motion to reconsider;
(5) in finding UCPD is not liable under the TCA and
42 U.S.C. § 1983;
(6) in not deciding his collateral estoppel claim;
(7) in not deciding his judicial and equitable estoppel
claims;
(8) in dismissing the second amended complaint for
failure to state a claim; and
(9) in vacating default against UCPD.
We are convinced Gonzalez failed to comply with the notice provisions
under the TCA. For that reason alone, we affirm the orders under review and
dismissal of the second amended complaint.
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II.
Our review of a trial court's ruling on a motion to dismiss is de novo.
Watson v. N.J. Dep't of Treasury, 453 N.J. Super. 42, 47 (App. Div. 2017) (citing
Castello v. Wohler, 446 N.J. Super. 1, 14 (App. Div. 2016)). Since our "review
is plenary[,] . . . we owe no deference to the trial judge's conclusions." State v.
Cherry Hill Mitsubishi, 439 N.J. Super. 462, 467 (App. Div. 2015) (citation
omitted). In considering a motion under Rule 4:6-2(e), courts must accept the
facts asserted in the complaint and should accord the plaintiff all favorable
inferences. Watson, 453 N.J. Super. at 47.
"A complaint should be dismissed for failure to state a claim pursuant to
Rule 4:6-2(e) only if the factual allegations are palpably insufficient to support
a claim upon which relief can be granted." Frederick v. Smith, 416 N.J. Super.
594, 597 (App. Div. 2010) (internal quotations and citation omitted). "[O]ur
inquiry is limited to examining the legal sufficiency of the facts alleged on the
face of the complaint." Green v. Morgan Props., 215 N.J. 431, 451 (2013)
(internal quotations and citation omitted). Therefore, the pleading must be
"search[ed] . . . in depth and with liberality to ascertain whether the fundament
of a cause of action may be gleaned even from an obscure statement of claim."
Id. at 452 (internal quotations and citation omitted).
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The TCA was passed to balance the "inherently unfair and inequitable
results which occur in the strict application of the tradition doctrine of sovereign
immunity" with the fact that "the area within which government has the power
to act for the public good is almost without limit and therefore government
should not have the duty to do everything that might be done." N.J.S.A. 59:1 -
2. "The guiding principle of the [TCA] is that 'immunity from tort liability is
the general rule and liability is the exception." Coyne v. State, Dep't of Transp.,
182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J.
282, 286 (1998)). One of the most important limitations imposed by the TCA
are the provisions governing a potential claimant's obligation to file a notice of
tort claim prior to initiating litigation. D.D. v. Univ. of Med. & Dentistry of
N.J., 213 N.J. 130, 134 (2013).
Under N.J.S.A. 59:8-8, a claimant must file a notice of claim with a public
entity within ninety days of accrual of the claim. The ninety-day period may be
extended under certain circumstances provided the claimant files a motion to
deem the notice of claim timely filed. N.J.S.A. 59:8-9. Such a motion requires
the claimant to: (1) present extraordinary circumstances for failing to timely
file the notice of claim; (2) submit the claim no later than one year from the
accrual date; and (3) demonstrate the absence of prejudice to the public entity
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as a result of the late notice. Rogers v. Cape May Cnty. Off. of Pub. Def., 208
N.J. 414, 427-28 (2011). "After the one-year limitation has passed, 'the court is
without authority to relieve a plaintiff from his [or her] failure to have filed a
notice of claim, and a consequent action at law must fail.'" Pilonero v. Twp. of
Old Bridge, 236 N.J. Super. 529, 532 (App. Div. 1989) (quoting Speer v.
Armstrong, 168 N.J. Super. 251, 255-56 (App. Div. 1979)).
To determine whether a notice of claim was timely filed under N.J.S.A.
59:8-8, a court must decide "the date on which the claim accrued." Ben Elazar
v. Macrietta Cleaners, Inc., 230 N.J. 123, 133-34 (2017). A judge's
determination of the accrual date for a claim under the TCA begins with deciding
when the claim arose, followed by determining whether the claim was filed
within ninety days of the accrual date and, if not, whether extraordinary
circumstances justify the late notice of claim. Beauchamp v. Amedio, 164 N.J.
111, 118-19 (2000).
While the date is typically the date on which the underlying tortious action
occurred, "common law allows for delay of the legally cognizable date of
accrual when the victim is unaware of his injury or does not know that a third
party is liable for his injury." Ben Elazar, 230 N.J. at 134 (quoting Beauchamp,
164 N.J. at 117).
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A claim must be presented to the public entity through certified mail to
the public entity, and service upon the entity constitutes constructive service on
any individual employee of that entity involved in the claim. N.J.S.A. 59:8 -10.
The notice must include "a general description of the injury, damage, or loss
incurred so far as it may be known at the time of presentation of the claim."
N.J.S.A. 59:8-4. The notice must also be signed "by the claimant or by some
person on his behalf." N.J.S.A. 59:8-5.
Under Rule 4:49-2, "the decision to grant or deny a motion for
reconsideration rests within the sound discretion of the trial court." Pitney
Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App.
Div. 2015). We review a "trial court's denial of plaintiff's motion for
reconsideration for abuse of discretion." Branch v. Cream-O-Land Dairy, 244
N.J. 567, 582 (2021) (citing Kornbleuth v. Westover, 241 N.J. 289, 301 (2020)).
Abuse of discretion "arises when a decision is made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis." Kornbleuth, 241 N.J. at 302 (quoting Pitney Bowes Bank,
440 N.J. Super. at 382).
A motion for reconsideration "is primarily an opportunity to seek to
convince the court that either (1) it has expressed its decision based upon a
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palpably incorrect or irrational basis, or (2) it is obvious that the court either did
not consider, or failed to appreciate the significance of probative, competent
evidence." Id. at 301 (quoting Guido v. Duane Morris LLP, 202 N.J. 79, 87-88
(2010)).
"[T]he magnitude of the error cited must be a game-changer for
reconsideration to be appropriate." Palombi v. Palombi, 414 N.J. Super. 274,
289 (App. Div. 2010). "Said another way, a litigant must initially demonstrate
that the [c]ourt acted in an arbitrary, capricious, or unreasonable manner, before
the [c]ourt should engage in the actual reconsideration process." D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). "A litigant should not seek
reconsideration merely because of dissatisfaction with a decision of the
[c]ourt." Ibid.Moreover, "[r]econsideration cannot be used to expand the record and
reargue a motion." Cap. Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super.
299, 310 (App. Div. 2008). "[I]f a litigant wishes to bring new or additional
information to the [c]ourt's attention which it could not have provided on the
first application, the [c]ourt should, in the interest of justice (and in the exercise
of sound discretion), consider the evidence." D'Atria, 242 N.J. Super. at 401.
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Here, the property was seized on June 1, 2010, but as per the Directive,
the State must retain evidence for five years "from the date of conviction or the
expiration of sentence, whichever is later." Law Enf't Directive No. 2011-1, at
11. On June 22, 2012, Gonzalez was placed on probation for three years.
Therefore, under Law Enf't Directive No. 2011-1, the State needed to retain the
seized property until June 21, 2020. Gonzalez's letter requesting return of the
property was dated August 18, 2020, fifty-seven days later. The ninety-day
period to file the TCA notice clock started to run on June 21, 2020, the day the
property could have been retrieved.
Gonzalez thought initially that the HCPO would comply. According to
Gonzalez, sometime between August and October 2020, he "assumed that
[HCPO] was not intending to return his property" and he "did not know the
property was going to be retained by the State until he submitted a form to
retrieve his property" in the August to October 2020 timeframe. Thus, Gonzalez
contends the accrual date shall fall within that period. We disagree.
Based on our do novo review of the record, the accrual date of Gonzalez's
claim was June 21, 2020, five years after the date he finished his probational
sentence. Ninety days from June 21, 2020 was September 19, 2020. There is
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no dispute that no notice of claim was filed on behalf of Gonzalez during the
ninety-day period.
In addition, there is no dispute that Gonzalez was represented by counsel
during that period. Moreover, Gonzalez failed to submit an affidavit or
certification demonstrating extraordinary circumstances for his failure to timely
file a TCA notice. We are satisfied the court properly determined a complaint
is "not . . . a substitute for the notice required by statute," even if it is filed within
the ninety-day period. Guzman, 214 N.J. Super. at 171-72 (citations omitted).
We also reject Gonzalez's argument that the TCA notice filed in August
of 2010 was sufficient. As we stated, that notice was insufficient because the
injuries complained of included personal injury, mental distress, economic
damages, constitutional violations and defamation, and not return of the
property. The 2010 notice also alleged different responsible parties from those
Gonzalez now asserts.
In sum, the 2010 notice disputed the legality of the initial seizure and
implied a conspiracy of "persecution" by the mayor, City of Union City, and
UCPD against Gonzalez "with the expressed objective of closing the business"
and "destroying [his] means of livelihood and earnings . . . ." Presently,
Gonzalez does not challenge the validity of the search warrant or the legality of
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the seizure. He only disputes retention of the property. The 2010 notice is also
unsigned in violation of N.J.S.A. 59:8-5, which requires a TCA claim be "signed
by the claimant or by some person on his [or her] behalf." This includes counsel
acting in the claimant's interest, even if not retained or authorized to do so.
S.E.W. Fuel Co. v. N.J. Turnpike Auth., 73 N.J. 107, 121 (1977) (concluding an
attorney can move for leave to file late notice of claim on behalf of claimant
without having been retained to do so because he was not an "officious
intermeddler[] in presuming to make the . . . motion on [the claimant's] behalf.")
The Legislature established a detailed statutory scheme effectuating a
waiver of immunity for tort claims in limited circumstances. It is necessary for
a claimant to follow the statutory steps carefully to file a timely claim or
demonstrate extraordinary circumstances warranting the filing of a late notice
of claim. We agree with the court that Gonzalez failed to timely file a TCA
notice within ninety days of the accrual of his claim.
Because we have determined Gonzalez failed to file a timely TCA notice
based on our de novo review of the record, we need not address his other
arguments raised on appeal. We therefore affirm the March 11, 2022 order
dismissing the second amended complaint against the HCPO. We also affirm
the June 15, 2022 order denying Gonzalez's motion for reconsideration of the
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March 11, 2022 order, the September 9, 2022 order dismissing default against
UCPD, and the December 8, 2022 order dismissing the second amended
complaint against UCPD and denying his motion to amend the second amended
complaint to name the City of Union City as a direct defendant.
Affirmed.
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