Sanket Thakur v. Cofiroute USA

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANKET VINOD THAKUR, an individual No. 21-55364
person on behalf of himself and all other
persons and entities similarly situated, D.C. No.
8:19-cv-02233-ODW-JDE
Plaintiff-Appellant,
v. MEMORANDUM*
COFIROUTE USA, a Delaware limited
liability company; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted April 12, 2022**
Pasadena, California
Before: PAEZ and BADE, Circuit Judges, and CARDONE,*** District Judge.
Sanket Vinod Thakur appeals the district court’s dismissal of this putative
*
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).
***
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
class action against Cofiroute USA, LLC, the Orange County Transportation
Authority (“OCTA”), and the Riverside County Transportation Commission
(“RCTC”). Thakur admits to driving on the 91 Express Lanes without a
transponder linked to a properly funded FasTrak account, which is required to
lawfully use the toll road. Cofiroute sent Thakur a notice of toll evasion, which
stated that Thakur violated Cal. Veh. Code § 23302 and encouraged him to become
a FasTrak customer. Thakur alleges that by mailing the notice, Cofiroute provided
the U.S. Postal Service with his personally identifiable information (“PII”) and
marketed toll-related services to him in violation of California law, and that OCTA
and RCTC are vicariously liable for Cofiroute’s conduct. The district court
dismissed the operative complaint for failure to state a claim. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
1. Thakur’s claims for statutory penalties against OCTA and RCTC are
barred by the California Government Claims Act (the “Claims Act”). “Under the
Claims Act, no suit for ‘money or damages’ may be brought against a public entity
until a written claim has been presented to the entity and the claim either has been
acted upon or is deemed to have been rejected.” Canova v. Trs. of Imperial
Irrigation Dist. Emp. Pension Plan, 59 Cal. Rptr. 3d 587, 592 (Cal. Ct. App. 2007)
(as amended) (quoting Cal. Gov. Code §§ 905, 945.4). If the public entity rejects
the claim in a written notice, a claimant has six months “after the date such notice
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is personally delivered or deposited in the mail” to file suit. Cal. Gov. Code
§ 945.6(a)(1). Thakur filed this lawsuit nearly one year after OCTA and RCTC
rejected his claims.1 Those claims are thus untimely under the Claims Act.
We decline to equitably toll the limitations period because Thakur engaged
in forum-shopping. See Mitchell v. Frank R. Howard Mem’l Hosp., 8 Cal. Rptr. 2d
521, 529 (Cal. Ct. App. 1992). After he received OCTA’s and RCTC’s rejection
letters, Thakur added them as defendants in a case pending in state court. Thakur
voluntarily dismissed that case after he received an unfavorable pretrial ruling and
refiled his case in federal court. The district court dismissed Thakur’s case for lack
of jurisdiction under the Class Action Fairness Act, noting that state court was a
“suitable” forum “to determine the pervasive California interests at stake.” Yet
Thakur refiled the instant action in federal court, alleging a narrower class
definition. Thakur’s counsel admitted he was “determined to have at least a part of
this class action in the federal courts” to “get a decision . . . that [did not] moot the
[related] state court actions but which create[d] a res judicata or collateral estoppel
effect.” Given this conduct, Thakur cannot establish “the reasonable and good
faith pursuit of an alternative remedy necessary to equitably toll the statute of
limitations under California law.” Id. at 528; see also Bacon v. City of Los
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We assume without deciding that a claim presented to RCTC by a non-
party may satisfy Thakur’s obligations under the Claims Act.
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Angeles, 843 F.2d 372, 374–75 (9th Cir. 1988).
2. Even if Thakur had complied with the Claims Act, the district court’s
dismissal of the operative complaint was proper because it lacks a cognizable legal
theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
California prohibits transportation agencies, like Cofiroute, from using a
nonsubscriber’s PII “to market products or services to that nonsubscriber.” Cal.
Sts. & High. Code § 31490(k). But, of significance here, the prohibition does “not
apply to toll-related products or services contained in a notice of toll evasion issued
pursuant to Section 23302 of the Vehicle Code.” Id.Thakur concedes that the notice he received was issued pursuant to Cal.
Veh. Code § 23302, yet he insists that it does not fall within Cal. Sts. & High.
Code § 31490(k)’s exception. To support his position, Thakur isolates two
virtually identical provisions in ordinances issued by OCTA and RCTC. The
provisions provide: “Any Motorist[s] assessed a Penalty for a Violation shall be
deemed to be charged with a non-criminal, civil violation, pursuant to
Section 23302.5 subdivision (a) of the Code.” Based solely on that language,
Thakur argues that Cal. Veh. Code § 23302.5 was “the only statute” Cofiroute
could cite when issuing notices of toll evasion. We disagree.
When defining a “Violation,” the RCTC ordinance expressly references Cal.
Veh. Code § 23302 and the conduct it proscribes. California law requires the
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entity authorized to collect tolls (here, Cofiroute) to “forward to the registered
owner a notice of toll evasion violation setting forth the violation, including
reference to the section violated.” Cal. Veh. Code § 40254(a) (emphases added).
Thus, Cofiroute did not “ignore” the RCTC ordinance by issuing a notice of toll
evasion pursuant to Cal. Veh. Code § 23302. Rather, Cofiroute complied with the
RCTC ordinance and California law.
Unlike the RCTC ordinance, the OCTA ordinance does not plainly refer to
Cal. Veh. Code § 23302, but the ordinance defines a “Violation” to cover the same
conduct prohibited by that statute. See id. § 23302(a)(1) (“[I]t is prima facie
evidence of a violation . . . for a person to drive . . . onto any . . . toll highway
without either lawful money . . . in an amount sufficient to pay the prescribed tolls
. . . or a transponder . . . associated with a[n] . . . account with a balance sufficient
to pay those tolls.” (emphases added)).
Thakur’s restrictive reading of the ordinance overlooks the statutory scheme
that governs how transportation agencies must enforce toll violations. See Lexin v.
Superior Court, 222 P.3d 214, 241 (Cal. 2010) (as amended) (“It is a basic canon
of statutory construction that statutes in pari materia should be construed together
so that all parts of the statutory scheme are given effect.” (citations omitted)). A
sensible reading of the relevant law is that Cal. Veh. Code § 23302 defines the
prima facie evidence necessary to establish a toll violation; Cal. Veh. Code
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§ 23302.5 specifies that a toll violation is a civil offense; and Cal. Veh. Code
§§ 40250–40273 provide “the civil administrative procedures” governing
enforcement, id. § 40250(a). Consistent with Cal. Veh. Code §§ 23302.5and 40250(a), the OCTA ordinance deems a “Violation” to be “a non-criminal,
civil violation.” A “Violation,” as defined by the OCTA Ordinance, prohibits the
same conduct as Cal. Veh. Code § 23302. And California law required Cofiroute
to include a “reference to the section violated” in notices of toll evasion. Id.§ 40254(a).
Because the ordinances do not preclude Cofiroute from issuing notices of
toll evasion pursuant to Cal. Veh. Code § 23302, and the at-issue notices were
issued pursuant to that statute, the notices fall squarely within the exception in Cal.
Sts. & High. Code § 31490(k). We therefore conclude that Thakur’s complaint
lacks a cognizable legal theory.
AFFIRMED.
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