Tillison v. City of San Diego ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN TILLISON, dba West Coast 
Towing,
Plaintiff-Appellee,
v. No. 03-55939
CITY OF SAN DIEGO, a government D.C. No.
entity; CITY OF SAN DIEGO POLICE  CV-01-02373-
DEPARTMENT, RMB/LSP
Defendants-Appellants, OPINION
and
DOES, 1 through 20, inclusive,
Defendant.

Appeal from the United States District Court
for the Southern District of California
Rudi M. Brewster, District Judge, Presiding
Argued and Submitted
November 4, 2004—Pasadena, California
Filed May 9, 2005
Before: Mary M. Schroeder, Chief Judge, Ronald M. Gould,
and Richard R. Clifton, Circuit Judges.
Opinion by Chief Judge Schroeder
5053
TILLISON v. CITY OF SAN DIEGO 5055
COUNSEL
Richard A. Ostrow and Grant R. Telfer, Office of the City
Attorney, San Diego, California, for the defendants-
appellants.
Michael P. McGovern, Knoxville, Tennessee, for the
plaintiff-appellee.
Douglas G. Benedon, Benedon & Serlin, Woodland Hills,
California, for amicus curiae North County Apartment Man-
agers Association.
George Rios, Assistant San Jose City Attorney, San Jose, Cal-
ifornia, for amicus curiae League of California Cities.
OPINION
SCHROEDER, Chief Judge:
A towing company challenges California Vehicle Code
section 22658(l)(1). This statute provides that when a towing
5056 TILLISON v. CITY OF SAN DIEGO
company tows a vehicle from private property without the
vehicle owner’s permission, the company must obtain written
authorization from either the property owner or the property
owner’s agent. It also requires that the property owner or
agent be present for the tow.
The district court enjoined enforcement of section
22658(l)(1) as preempted by the Federal Aviation Administra-
tion Authorization Act (FAAAA) of 1994, 49 U.S.C.
§§ 14501-05. The district court held, in accord with a 2000
decision of this court, that the provision is outside the statu-
tory exception from preemption for state laws directed at
safety concerns, because the provision is aimed instead at
consumer protection. See Tocher v. City of Santa Ana, 219
F.3d 1040, 1051-52 (9th Cir. 2000). Recent developments,
including the Supreme Court’s providing a broader interpreta-
tion of the safety exception to the FAAAA and the California
legislature’s amending section 22658, persuade us to recon-
sider Tocher. We therefore vacate the injunction entered by
the district court and hold that section 22658(l)(1) is not pre-
empted by federal law.
BACKGROUND
This case arises out of a practice known as “patrol towing.”
The practice involves arrangements between towing compa-
nies and owners of private property, frequently apartment
complex owners. Under these arrangements, the tow operator
patrols the private parking lots and tows cars that the towing
company determines are parked in violation of the parking
rules. The practice of patrol towing violates California Vehi-
cle Code section 22658(l)(1), which requires that towing com-
panies obtain written authorization from the property owner
or his agent every time a vehicle is towed and that the owner
or agent be physically present for the actual tow.
The statute provides in relevant part:
TILLISON v. CITY OF SAN DIEGO 5057
A towing company shall not remove or commence
the removal of a vehicle from private property with-
out first obtaining written authorization from the
property owner or lessee, or an employee or agent
thereof, who shall be present at the time of removal.
General authorization to remove or commence
removal of a vehicle at the towing company’s discre-
tion shall not be delegated to a towing company or
its affiliates.
Cal. Veh. Code § 22658(l)(1) (2004). Plaintiff-appellee John
Tillison is the owner of a towing business that does patrol
towing. While one of Tillison’s drivers was performing a
patrol tow, a police officer stopped him for violating section
22658 and instructed the driver to return the car to the place
from which it had been towed. The driver refused and was
placed under arrest for violating California Penal Code sec-
tion 148 (resisting, delaying or obstructing an officer in the
performance of his duties). Tillison brought suit in the District
Court for the Southern District of California seeking damages
and an injunction preventing the San Diego Police Depart-
ment from enforcing several sections of the California Vehi-
cle Code on the ground they are preempted by the FAAAA.
The federal statute governs the prices, routes, or services of
interstate motor carriers, and broadly preempts state and local
regulation of transportation. The federal statute, however,
exempts from preemption state and local regulations con-
cerned with safety. 49 U.S.C. § 14501(c)(2)(A).
In Tocher we held that California Vehicle Code section
22650 (requiring general compliance with the provisions of
the California Vehicle Code) and section 22658.1 (requiring
towing companies to notify the property owner if a fence is
cut while towing) escape preemption under the safety excep-
tion of the FAAAA because those sections are designed to
ensure that only professionals perform tows and that tows do
not endanger the public. 219 F.3d at 1051-52. We held that
other sections of the California Vehicle Code, including sec-
5058 TILLISON v. CITY OF SAN DIEGO
tion 22658(l)(1), at issue here, were preempted. We said that
this provision was enacted for “consumer protection rather
than safety.” Id. at 1052. Relying on Tocher, the district court
granted the request for a temporary restraining order and the
preliminary injunction.
This case then proceeded to a bench trial on Tillison’s
request for a permanent injunction against enforcement of
section 22658(l)(1). At trial, the court heard testimony from
several witnesses who described towing procedures in the San
Diego area. The witnesses included the manager of a security
company, a police officer who performed a statistical analysis
of calls for service involving non-consensual tows, a police
officer involved in a police project on non-consensual towing,
Mr. Tillison, and the owner of a towing company that does
not perform patrol towing. The district court thus looked to
the practical effect of the law on towing in San Diego to find
that section 22658(l)(1) was not a safety-related towing law,
and that it was therefore preempted by the FAAAA. Conse-
quently, in February 2003, the district court permanently
enjoined the City from enforcing section 22658(l)(1).
The City appeals the district court’s judgment granting that
permanent injunction.
DISCUSSION
[1] Section 14501(c)(1) of the FAAAA states: “a State [or]
political subdivision of a State . . . may not enact or enforce
a law, regulation, or other provision having the force and
effect of law related to a price, route, or service of any motor
carrier . . . with respect to the transportation of property.” 49
U.S.C. § 14501(c)(1). The parties concede that this federal
law generally preempts the state and local regulation of tow-
ing prices, routes, and services. The Act contains an express
exception, however, for motor vehicle safety. Section
14501(c)(2)(A) (“the safety exception”) provides that the
FAAAA “shall not restrict the safety regulatory authority of
TILLISON v. CITY OF SAN DIEGO 5059
a State with respect to motor vehicles.” Consequently, the
question in this case is whether California Vehicle Code sec-
tion 22658(l)(1) falls within this safety exception and thus is
entitled to be enforced according to its terms without preemp-
tion by the FAAAA.
The district court focused on the practical effect of the stat-
ute as enforced in San Diego, relying on testimony of the
local witnesses. The court properly observed that without
great explanation, our opinion in Tocher had held that section
22658(l) was intended to further consumer protection rather
than safety, and thus did not fall within the safety exception.
See 219 F.3d at 1052. The district court also recognized that
the California Court of Appeals in People ex rel. Renne v.
Servantes, 86 Cal. App. 4th 1081, 1090-92 (2001), had subse-
quently rejected Tocher and held that section 22658(l) did fall
within the safety exception. The district court also noted that
the state court had given little more explanation as to why the
statute fell within the safety exception than had the Ninth Cir-
cuit in holding that it did not.
Without precedent that gave any coherent guidance, the
district court focused on the evidence in holding that the prac-
tical effect of the statute’s enforcement in San Diego had not,
in fact, increased safety. The district court therefore held that
the state statute was outside the safety exception of federal
preemption and enjoined enforcement of the state statute.
[2] The difficulty with this factual approach, focusing on
the actual effect of the statute in San Diego, is that we are
concerned with the purpose of a statute intended to apply
statewide. Such a statute cannot be subject to federal preemp-
tion in one area of the state but not in another depending on
its practical effects. The focus of the safety exception to pre-
emption must be on the legislative intent and whether the leg-
islature was acting out of safety concerns.
[3] There is little caselaw discussing the limits of the safety
exception to federal preemption. Much of the litigation over
5060 TILLISON v. CITY OF SAN DIEGO
FAAAA has been about whether the safety exception could
be applied to regulations adopted by municipalities in addition
to statutes adopted by state legislatures. See, e.g., City of
Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S.
424 (2002); Ace Auto Body & Towing, Ltd. v. City of New
York, 171 F.3d 765 (2d Cir. 1999); R. Mayer of Atlanta, Inc.
v. City of Atlanta, 158 F.3d 538 (11th Cir. 1998), abrogated
by Ours Garage, 536 U.S. 424 (2002). In Ours Garage, the
Supreme Court determined that safety-related towing laws
passed by municipalities may fall within the safety exception
to the FAAAA, so long as they are “genuinely responsive to
safety concerns.” 536 U.S. at 442. Thus, the Supreme Court
tells us that our focus in a preemption case like this one is
whether the purpose and intent of the body passing the law at
issue, whether state or municipality, was truly safety. The
Supreme Court also made clear that the “narrowest possible
construction” of the safety exception is “surely resistible.”
536 U.S. at 441. The exception “do[es] not necessarily con-
flict” with the FAAAA’s preemption rule. Id. It instead “seeks
to save from preemption state power ‘in a field which the
States have traditionally occupied.’ ” Id. at 438 (quoting
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)).
[4] Here, where we are dealing with a provision enacted by
the California legislature, we look to that body’s intent. See
Galactic Towing, Inc. v. City of Miami Beach, 341 F.3d 1249,
1253 (11th Cir. 2003) (per curiam); Cole v. City of Dallas,
314 F.3d 730, 734-35 (5th Cir. 2002) (per curiam); Ace Auto
Body, 171 F.3d at 774. In that regard, we now have at least
some authoritative indication of legislative purpose not avail-
able to the district court. Responding to the district court’s
decision in this case, the California legislature amended the
statute to clarify that it is safety-related. In August of 2003,
California passed AB 792, amending section 22658 by adding
subsection (m)(2) which states:
It is the intent of the Legislature in the adoption of
subdivision (l) to further the safety of the general
TILLISON v. CITY OF SAN DIEGO 5061
public by ensuring that a private property owner or
lessee has provided his or her authorization for the
removal of a vehicle from his or her property,
thereby promoting the safety of those persons
involved in ordering the removal of the vehicle as
well as those persons removing, towing, and storing
the vehicle.
Cal. Veh. Code § 22658(m)(2). Thus, the legislature has now
directly and clearly delineated the safety purpose of the provi-
sion at issue. Although not dispositive of the question of fed-
eral law before us, the state legislature’s expression of intent
and purpose is relevant to our inquiry. See Coeur D’Alene
Tribe of Idaho v. Hammond, 384 F.3d 674, 682-83.
[5] The California Court of Appeals’ earlier decision in
Servantes is helpful. See 86 Cal. App. 4th at 1090-92. The
court in Servantes expressly referenced its previous decision
in Berry v. Hannigan, 7 Cal. App. 4th 587, 591 (1992). In
Berry, the court had observed that “ ‘[l]egislation which tends
to assist members of the public from involuntarily losing the
use of their vehicles and which tends to expedite recovery of
their vehicles once they have been removed fairly and clearly
promotes the safety and welfare of the public.’ ” Id. (quoting
Crane Towing, Inc. v. Gorton, 570 P.2d 428, 434 (Wash.
1977)). Moreover, the court in Servantes correctly noted that,
by requiring that vehicles be removed only upon “proper
authorization,” subsection (l)(1) would “protect vehicle own-
ers and the public at large from both towing mistakes and out-
right theft of vehicles from private property.” 86 Cal. App.
4th at 1090.
[6] Further, other circuits which have addressed similar
enactments have concluded that they are sufficiently safety-
related to come within the exception to federal preemption.
See Galactic Towing, 341 F.3d at 1252-53; Cole, 314 F.3d at
734-35; Ace Auto Body, 171 F.3d at 774-77; see also Tow
Operators Working To Protect Their Right To Operate on the
5062 TILLISON v. CITY OF SAN DIEGO
Streets of Kansas City v. City of Kansas City, 338 F.3d 873,
876 (8th Cir. 2003). In Galactic Towing, the Eleventh Circuit
affirmed the determination of the District Court for the South-
ern District of Florida that Miami Beach towing ordinances
were safety-related. In reaching that conclusion, the district
court pointed to one of the ordinances, similar to the Califor-
nia statute, as responsive to safety concerns: a “representative
example which clearly reflects that the towing ordinance
meets Miami Beach’s safety concerns, not economic concerns
is . . . [the] regulation [that] prohibits the removal and towing
of a vehicle from private property without the expressed
instruction and written authorization from the property owner.”1
Galactic Towing, Inc. v. City of Miami Beach, 274 F. Supp.
2d 1315, 1319 n. 1 (S.D. Fla. 2002), aff’d, 341 F.3d at 1253.
The district court went on to explain that the provision was
safety-related because “the ordinance protects both the vehi-
cle owner and the public from towing mistakes, which may
lead to dangerous confrontations, to the owner and his or her
family being stranded at a dangerous time and location, to
false vehicle theft reports, which waste law enforcement’s
limited resources, to unnecessary hazardous tows and to simi-
1
The Miami Beach Ordinance at issue provides:
No business enterprise issued a permit under this article shall do
any of the following: Recover, tow, remove or store a vehicle
except upon the express instruction and written authorization
demonstrating a signature of the property owner or agent to the
business enterprise requesting the tow or removal. Such agent
shall not be an officer or employee of the business enterprise. . . .
No such instruction shall be considered to have been given by
virtue of the mere terms of any contract or agreement between a
business enterprise and a property owner. . . . No such instruction
shall be considered to have been given where the instruction
occurs in advance of the actual unauthorized parking of the vehi-
cle. No such instruction shall be considered to have been given
where the instruction is general in nature and unrelated to spe-
cific, individual and identifiable vehicles which are already
unauthorizedly parked.
Miami Beach, Fla. Code § 106-268 (1964).
TILLISON v. CITY OF SAN DIEGO 5063
larly unsafe circumstances. The ordinance also protects
against theft of vehicles from private property.” Id. The Cali-
fornia legislature agrees. We now agree as well.
[7] For the foregoing reasons, including material statutory
authority not available at the time of the district court deci-
sion, we conclude that the statute is not preempted; it is
safety-related and comes within the safety exception to fed-
eral preemption.
[8] We therefore vacate the district court’s injunction and
remand for entry of judgment in favor of the City of San
Diego and other defendants.
VACATED AND REMANDED for entry of judgment in
favor of the defendants.