Lone Star Security v. City of Los Angeles ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LONE STAR SECURITY & VIDEO, 
INC., a California Corporation,
Plaintiff-Appellee,
and No. 07-56521
FRED PARKS,  D.C. No.
Plaintiff, CV-03-05346-WDK
v.
CITY OF LOS ANGELES,
Defendant-Appellant.

LONE STAR SECURITY & VIDEO, 
INC., a California Corporation, No. 07-56575
Plaintiff-Appellant, D.C. No.
and CV-03-05346-WDK
FRED PARKS,  ORDER FOR
Plaintiff, PUBLICATION
WITHDRAWING
v.
OPINION AND
CITY OF LOS ANGELES, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
William D. Keller, District Judge, Presiding
Argued and Submitted
May 7, 2009—Pasadena, California
Order and Opinion Filed October 21, 2009
14741
14742 LONE STAR SECURITY v. LOS ANGELES
Before: Betty B. Fletcher, Raymond C. Fisher and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Fisher
14744 LONE STAR SECURITY v. LOS ANGELES
COUNSEL
Rockard J. Delgadillo, City Attorney; Laurie Rittenberg,
Assistant City Attorney; and Michael D. Nagle (argued), Dep-
uty City Attorney, Los Angeles, California, for the defendant-
appellant-cross-appellee.
George M. Wallace, Wallace, Brown & Schwartz, Pasadena,
California, for the plaintiff-appellee-cross-appellant.
ORDER
The opinion filed July 10, 2009, and appearing at 572 F.3d
685 (9th Cir. 2009), is withdrawn. A superseding opinion will
LONE STAR SECURITY v. LOS ANGELES 14745
be filed concurrently with this order. Further petitions for
rehearing or petitions for rehearing en banc may be filed.
Appellee/Cross-Appellant’s petition for rehearing and petition
for rehearing en banc, filed July 24, 2009, is denied as moot.
OPINION
FISHER, Circuit Judge:
The City of Los Angeles routinely towed vehicles owned
by Lone Star Security & Video, Inc. (Lone Star) for violating
an ordinance that Lone Star contends was preempted by the
California Vehicle Code. Lone Star brought a claim under 42
U.S.C. § 1983, arguing that because the ordinance was invalid
under state law, the City violated Lone Star’s due process
rights under the United States Constitution. We must decide
whether this claim makes out a federal constitutional viola-
tion. We also address whether due process required the City
to provide notice to Lone Star, a chronic violator of the ordi-
nance, each time it towed one of Lone Star’s vehicles.
BACKGROUND
The California Vehicle Code preempts municipal vehicle
ordinances inconsistent with its provisions. In relevant part,
the Code provides that “no local authority shall enact or
enforce any ordinance on the matters covered by this code
unless expressly authorized herein.” Cal. Veh. Code § 21. The
Code further makes it “unlawful for any peace officer or any
unauthorized person to remove any unattended vehicle from
a highway to a garage or to any other place, except as pro-
vided in this code.” Id. § 22650. As an exception to this gen-
eral prohibition against towing unattended vehicles, the Code
provides that a municipal officer “who is engaged in directing
traffic or enforcing parking laws and regulations . . . of a city”
is authorized to tow a vehicle “parked or left standing upon
14746 LONE STAR SECURITY v. LOS ANGELES
a highway for 72 or more consecutive hours in violation of a
local ordinance authorizing removal.” Id. § 22651.
Although the Code provides for the towing of vehicles
parked “for 72 or more consecutive hours,” id. (emphasis
added), the City of Los Angeles enacted a provision that, dur-
ing the relevant period, prohibited parking in an otherwise
legal public spot “for more than 72 hours in the aggregate
during any period of 73 consecutive hours.” L.A., Cal., Mun.
Code § 80.73.2 (1987) (emphasis added).1 The ordinance fur-
ther stated that “a vehicle shall be deemed parked or left
standing for . . . 72 hours unless during that period [it] is
either driven a minimum of one mile after leaving the location
where it has been parked or left standing or, within that
period, is removed from any highway, street or alley.” Id.
Lone Star, the plaintiff-cross-appellant in this action, sells
security systems to homes and business. As part of its market-
ing strategy, Lone Star attached advertisements to a number
of mobile trailers and parked them for extended periods on
residential streets in Los Angeles. Over several years, officers
of the Los Angeles Police Department (LAPD) and Los
Angeles Department of Transportation (LADOT) towed and
impounded 77 of Lone Star’s trailers for having been parked
longer than 72 hours in violation of Los Angeles Municipal
Code § 80.73.2.
Both LAPD and LADOT officers have forms they may
attach to a vehicle in order to notify its owner that the vehicle
may be towed for being parked longer than 72 hours in viola-
tion of Section 80.73.2. The City’s policy is that LAPD and
1
Since Lone Star brought this action, Los Angeles Municipal Code
§ 80.73.2 (“Section 80.73.2”) has been amended so that, consistent with
the California Vehicle Code, it simply prohibits publicly parking “for 72
or more consecutive hours.” L.A., Cal., Mun. Code § 80.73.2 (2006).
Hereinafter all citations to “Los Angeles Municipal Code § 80.73.2” and
“Section 80.73.2” refer to Los Angeles Municipal Code § 80.73.2 (1987).
LONE STAR SECURITY v. LOS ANGELES 14747
LADOT officers should attach one of these notice forms to
any vehicle belonging to a first-time offender. The decision
whether to attach the form to a repeat offender’s vehicle,
however, is left to each individual officer’s discretion. It is
unclear from the record whether the City had, at some point,
placed a notice on each of Lone Star’s trailers that it ulti-
mately towed and impounded. Lone Star does not dispute,
however, that it received multiple notices for being parked in
violation of Section 80.73.2 and that, in addition to its trailers
being towed, it was issued hundreds of citations for violating
the ordinance.
In April 2003, Lone Star filed an action in California state
court alleging the City was in unlawful possession of Lone
Star’s trailers that were impounded under Los Angeles
Municipal Code § 80.73.2 because the ordinance was invalid
under the California Vehicle Code. In the state court action,
Lone Star sought a preliminary injunction to prevent the City
from towing any of its vehicles that the City could not prove
had remained parked in the same location for over 72 consec-
utive hours without having been moved at least a mile during
that period. The Los Angeles County Superior Court denied
Lone Star’s preliminary injunction request, concluding that it
was unlikely Lone Star could prove that the Los Angeles
Municipal Code was inconsistent with the California Vehicle
Code.
Lone Star voluntarily dismissed its state court action and
filed the present one in federal court. In this action, Lone Star
raised two claims under 42 U.S.C. § 1983, contending that its
federal due process rights were violated (1) because the City
provided inadequate notice before towing its vehicles, and (2)
because Los Angeles Municipal Code § 80.73.2 was pre-
empted by the California Vehicle Code and thus invalid.2
2
Lone Star first raised its invalid-ordinance claim in its motion for sum-
mary judgment. The parties fully argued the merits of the claim, however,
and the City did not object to Lone Star’s failure to raise the claim in its
14748 LONE STAR SECURITY v. LOS ANGELES
Lone Star’s complaint, however, asserts no state law causes
of action.
The district court granted Lone Star summary judgment on
the ground that Section 80.73.2 is invalid under the California
Vehicle Code, but also held that the City was not constitution-
ally required to provide Lone Star notice each time it towed
one of Lone Star’s vehicles for violating the 72-hour rule.
Following a bench trial, the district court awarded Lone Star
damages reflecting the company’s overall losses for all of its
trailers towed under Section 80.73.2 between 2001 and 2003,
irrespective of whether those trailers were in fact parked more
than 72 consecutive hours — such that California Vehicle
Code § 22651(k) would permit their towing — or were simply
parked “for more than 72 hours in the aggregate” during a 73-
hour period. L.A., Cal., Mun. Code § 80.73.2 (1987). The
City timely appealed the district court’s judgment, and Lone
Star timely cross-appealed the district court’s determination
that it received constitutionally sufficient notice before its
vehicles were towed.
DISCUSSION
Lone Star purports to raise two distinct due process claims
in this action. We conclude that the district court should have
rejected the invalid-ordinance claim and properly rejected the
notice claim.
complaint. “When an issue not raised by the pleadings is tried by the par-
ties’ express or implied consent, it must be treated in all respects as if
raised in the pleadings.” Fed. R. Civ. P. 15(b)(2). “Even when federal
issues have been litigated,” however, “the parties cannot invoke construc-
tive amendment to escape the ordinary boundaries of federal jurisdiction.”
City of Rome, N.Y. v. Verizon Commc’ns, Inc., 362 F.3d 168, 181-82 (2d
Cir. 2004).
LONE STAR SECURITY v. LOS ANGELES 14749
I. Invalid-Ordinance Claim
Lone Star asserts a due process claim under 42 U.S.C.
§ 1983 based solely on the City having towed its trailers for
being parked in violation of an ordinance that, Lone Star
argues, is invalid under state law (the “invalid-ordinance
claim”). Specifically, Lone Star contends that Los Angeles
Municipal Code § 80.73.2 was preempted by the California
Vehicle Code. The City violated Lone Star’s federal due pro-
cess rights by enforcing Section 80.73.2, Lone Star argued in
its motion for summary judgment, because “[w]hen a public
authority takes property on the basis of a law that is itself
unauthorized, that taking is improper and a violation of due
process.” The district court accepted Lone Star’s claim, hold-
ing that “[t]o the extent that the City of Los Angeles or its
agencies or representatives have towed or impounded” Lone
Star’s vehicles under Section 80.73.2, “those actions have
been unlawful and deprived plaintiffs of Constitutional rights
under color of law in violation of 42 U.S.C. § 1983.”3
[1] Lone Star contends that its due process rights were vio-
lated solely by virtue of the City’s acting under an ordinance
that is invalid under state law. We conclude that this claim
fails as a matter of law. Lone Star does not suggest, nor could
it, that its invalid-ordinance claim is based on substantive due
process. The ordinance Lone Star challenges does not inter-
fere with one of the fundamental rights or liberty interests that
enjoy “heightened protection against government interfer-
ence” under the substantive component of the due process
3
On appeal, the City argues that, regardless whether Section 80.73.2 is
valid under state law, the district court’s holding was erroneous because
the City had a separate ordinance in place that, consistent with the Califor-
nia Vehicle Code, authorized LAPD and LADOT officers “to remove
from highways, streets or alleys within the City of Los Angeles . . . any
vehicle which has been parked . . . for 72 or more consecutive hours.”
L.A., Cal., Mun. Code § 80.77(a). Because we conclude that Lone Star’s
invalid-ordinance claim fails as a matter of law on another basis, we need
not consider the City’s argument, or whether the City has waived this
argument.
14750 LONE STAR SECURITY v. LOS ANGELES
clause. Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
In addition to restricting legislation that interferes with funda-
mental rights, substantive due process also “bar[s] certain
government actions regardless of the fairness of the proce-
dures used to implement them.” Daniels v. Williams, 474 U.S.
327, 331 (1986). But this prohibition extends only to execu-
tive conduct that “amount[s] to an ‘abuse of power’ lacking
any ‘reasonable justification in the service of a legitimate
governmental objective.’ ” Shanks v. Dressel, 540 F.3d 1082,
1088 (9th Cir. 2008) (quoting County of Sacramento v. Lewis,
523 U.S. 833, 846 (1998)). Lone Star concedes that Section
80.73.2 serves the rational purpose of “encourag[ing] remov-
al” of any vehicle parked for more than 72 hours in a public
place “from its place of repose,” Scofield v. City of Hillsbor-
ough, 862 F.2d 759, 764 (9th Cir. 1988), and therefore cannot
contest that the City advanced this purpose by enforcing the
ordinance. Thus, Lone Star cannot plausibly assert a substan-
tive due process violation.
[2] Nor does Lone Star make out a colorable procedural
due process claim simply by asserting that Section 80.73.2’s
contravenes state law. “To satisfy procedural due process, a
deprivation of life, liberty, or property must be ‘preceded by
notice and opportunity for hearing appropriate to the nature of
the case.’ ” In re Yochum, 89 F.3d 661, 672 (9th Cir. 1996)
(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985)). Lone Star argues that if an ordinance is invalid
under state law, it necessarily fails to provide a level of notice
sufficient to satisfy due process. The notice and hearing
requirements of procedural due process, however, are not so
rigid.
[3] Due process, rather than being “a technical conception
with a fixed content unrelated to time, place and circum-
stances[,] . . . . is flexible and calls for such procedural protec-
tions as the particular situation demands.” Gilbert v. Homar,
520 U.S. 924, 930 (1997) (internal quotation marks and cita-
tion omitted); see also Mitchell v. W.T. Grant Co., 416 U.S.
LONE STAR SECURITY v. LOS ANGELES 14751
600, 610 (1974) (“Due process of law guarantees no particular
form of procedure; it protects substantial rights.” (internal
quotation marks omitted)). Accordingly, the relevant question
for due process purposes is not whether Section 80.73.2 is
defective as a matter of state law, but whether the City, in
implementing the ordinance, provided the level of notice
required whenever the government “alter[s] substantive rights
through enactment of rules of general applicability.” United
States v. Locke, 471 U.S. 84, 108 (1985). “[A] legislature gen-
erally provides” this level of notice “simply by enacting the
statute, publishing it, and, to the extent the statute regulates
private conduct, affording those within the statute’s reach a
reasonable opportunity both to familiarize themselves with
the general requirements imposed and to comply with those
requirements.” Id. Lone Star does not suggest that Section
80.73.2 is deficient in one of these respects. Accordingly, we
conclude that Lone Star’s invalid-ordinance claim alleges no
facts that could plausibly constitute a due process violation.
In a case involving federal interests far more tangible than
those Lone Star has identified, we held that a plaintiff does
not make out a § 1983 claim by alleging only that the govern-
ment enforced a preempted state law. See White Mountain
Apache Tribe v. Williams, 810 F.2d 844 (9th Cir. 1987). In
White Mountain, the plaintiffs had been required to pay taxes
under two Arizona statutes the United States Supreme Court
later determined to be preempted by federal law, and brought
§ 1983 claims contending that their rights had been violated
under the Supremacy and Due Process clauses of the United
States Constitution. We held that the plaintiffs failed to pro-
vide a meaningful basis for evaluating their due process
claim, and that “preemption of state law under the Supremacy
Clause — at least if based on federal occupation of the field
or conflict with federal goals — will not support an action
under § 1983.” Id. at 850. Unlike Lone Star’s invalid-
ordinance claim, the plaintiff’s claims in White Mountain
were grounded in federal preemption principles, and our
rejection of the claims thus shows how devoid of merit Lone
14752 LONE STAR SECURITY v. LOS ANGELES
Star’s due process argument is in this case, where the ostensi-
ble conflict is not between a state statute and federal law, but
merely between a municipal ordinance and a state statute.
[4] In short, Lone Star’s claim is premised on an untenable
notion of due process. It is a tenet of our federal system that
state constitutions are “not taken up into the 14th Amend-
ment” such that federal courts may strike down a statute as
invalid under state law. Pullman Co. v. Knott, 235 U.S. 23, 25
(1914) (Holmes, J.). It is likewise “axiomatic that ‘for the pur-
poses of the Supremacy Clause, the constitutionality of local
ordinances is analyzed in the same way as that of statewide
laws.’ ” Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605
(1991) (quoting Hilsborough County v. Automated Med.
Labs., Inc., 471 U.S. 707, 713 (1985)). Therefore, we reverse
the district court’s grant of summary judgment on Lone Star’s
invalid-ordinance claim and instruct the district court to enter
summary judgment on this claim in favor of the City.
II. Notice Claim
In addition to its invalid-ordinance claim, Lone Star argues
that the City failed to provide adequate notice before towing
its trailers for being parked more than 72 hours. The City had
a policy of providing notice to first-time offenders before
towing their vehicles in violation of the 72-hour rule, but left
to the discretion of individual officers the decision whether to
provide pre-towing notice to repeat offenders. Lone Star con-
cedes that the notice provided to first-time offenders was suf-
ficient to satisfy due process, and that it received this notice
on multiple occasions. It argues, however, that the City was
required to provide such advance notice each time it towed
one of Lone Star’s trailers. We disagree.
[5] Due process “require[s] that notice generally be given
before the government may seize property.” Clement v. City
of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008). There are,
however, “numerous exceptions to this general rule: The gov-
LONE STAR SECURITY v. LOS ANGELES 14753
ernment need not give notice in an emergency, nor if notice
would defeat the entire point of the seizure, nor when the
interest at stake is small relative to the burden that giving
notice would impose.” Id. at 1093-94; see also Scofield, 862
F.2d at 762-64 (holding that city was not required to provide
advance notice before towing unregistered vehicles). In evalu-
ating whether pre-towing notice is constitutionally required in
Lone Star’s situation, we are guided by the context-specific
balancing test set forth in Mathews v. Eldridge:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government’s interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural require-
ment would entail.
424 U.S. 319, 335 (1976); see Scofield, 862 F.2d at 762-64
(applying test). In Clement, we explained that the government
must present a “strong justification” for departing from the
norm that the government must generally provide notice
before towing a vehicle. 518 F.3d at 1094. Clement concerned
a noncommercial vehicle owner — a first-time offender
whose car the government towed without any notice at all.
We observed that towing without notice under such circum-
stances, as in most circumstances, “imposes significant costs
and burdens on the car’s owner,” including the anxiety of dis-
covering one’s car missing without knowing where it has
gone and the time and expense incurred in recovering posses-
sion of a vehicle that has been towed. Id. We held that imposi-
tion of these burdens of towing, without notice, “cannot be
justified as a means of deterring illegal parking. . . . The costs
and burdens on the car owner associated with a tow can only
be justified by conditions that make a tow necessary and
appropriate.” Id. Weighing these considerations, we conclude
14754 LONE STAR SECURITY v. LOS ANGELES
the City’s notice policy did not violate Lone Star’s due pro-
cess rights.
[6] First, although “[t]he uninterrupted use of one’s vehicle
is a significant and substantial private interest,” Scofield, 862
F.2d at 762, Lone Star does not assert such an interest. See
Clement, 518 F.3d at 1094 (concluding that “the owner’s nor-
mal interest in continued use of his vehicle — as a means of
getting from place to place” — had “no force” for the seizure
at issue because the plaintiff’s car had “just sat in the parking
lot, unused”). Lone Star was not using its trailers for transpor-
tation, but as an advertising medium in residential neighbor-
hoods. Such a use creates a lesser interest in the trailers than
had they served as a means of transportation. In addition,
because of Lone Star’s unique status as a commercial, chronic
offender having general notice through repeated previous
individual notices that its trailers are subject to towing, the
additional costs and burdens that concerned us in Clement are
not present here. Lone Star suffers no “anxiety” when it dis-
covers one of its trailers has disappeared from its parking
place. When a trailer disappears, Lone Star knows that it has
been towed. Nor are Lone Star’s costs of reacquiring posses-
sion of impounded trailers of concern. Lone Star, despite
knowing its trailers are subject to towing without individual-
ized notice, nonetheless continues to violate the ban on park-
ing more than 72-hours. Were violating the ordinance
unprofitable, we presume that Lone Star would stop violating
it. As the district court found:
Lone Star . . . already is on notice. The whole point
of this litigation is that it’s been ticketed or towed
many times . . . . They know exactly what the regula-
tion requires and what the rights are and what their
requirements are . . . . [Lone Star] wants to be able
to keep . . . the vans with these advertisements where
they are for as long as [they] can get away with it.
And to the extent that it exceeds 72 consecutive
hours, [they know] that it’s illegal . . . .
LONE STAR SECURITY v. LOS ANGELES 14755
[7] Second, the “risk of an erroneous deprivation” is not
substantial. Whatever the risk may be of erroneously towing
a first-time offender’s vehicle for violating the 72-hour rule,
this risk is considerably reduced for a chronic offender such
as Lone Star who demonstrates a pattern of violating the rule.
See Clement, 518 F.3d at 1094 (concluding that there does not
“appear to be a significant risk of erroneous towing” for cars
not driven by their owners that are parked in violation of their
non-operation certificates); Sutton v. City of Milwaukee, 672
F.2d 644, 646 (7th Cir. 1982) (“The determination that a car
is illegally parked is pretty cut and dried. Police officers make
mistakes, of course, but in giving out parking tickets not very
many — far fewer than in the case of moving violations.”).
[8] Third, the City has identified a number of interests
served by its actions, including preventing vandalism,
addressing the public nuisances caused by Lone Star’s mar-
keting strategy of parking trailers in residential neighborhoods
for extended periods and deterring repeat offenders. Lone
Star’s incentives for violating the 72-hour rule include not
only the commercial benefits of cost-free, long-term parking
in public spaces, but also the advertising exposure it enjoys by
displaying its trailers in residential areas. Given these incen-
tives, were the City required to provide advance notice each
time it towed one of Lone Star’s trailers, Lone Star would
have a strong interest in monitoring its many trailers and mov-
ing only those on which notice has been posted, leaving the
others parked until an officer happened to spot them. Allow-
ing Lone Star to game the system this way would obviously
impose a significant burden on the City’s interests in enforc-
ing the 72-hour rule.
[9] In sum, the City’s interests in preventing vandalism,
abating a nuisance and deterring Lone Star’s practices out-
weigh Lone Star’s uniquely low interest in additional, individ-
ualized notices. The towings here were “necessary and
appropriate” and thus did not violate Lone Star’s due process
rights. Clement, 518 F.3d at 1094.
14756 LONE STAR SECURITY v. LOS ANGELES
CONCLUSION
We affirm the district court’s rejection of Lone Star’s con-
stitutional notice claim, reverse its grant of summary judg-
ment on Lone Star’s invalid-ordinance claim and remand. In
its petition for rehearing, Lone Star argues that it has pre-
served other claims that it should be permitted to raise on
remand. We express no opinion on that question and leave it
to the district court to determine whether further proceedings
are warranted.
AFFIRMED in part, REVERSED in part and
REMANDED.
Each party shall bear its own costs of appeal.