572 F.3d 685 (9th Cir. 2009), 07-56521, Lone Star Sec. & Video, Inc. v. City of Los Angeles

Docket Nº:07-56521, 07-56575.
Citation:572 F.3d 685
Opinion Judge:FISHER, Circuit Judge
Party Name:LONE STAR SECURITY & VIDEO, INC., a California Corporation, Plaintiff-Appellee, v. CITY OF LOS ANGELES, Defendant-Appellant. and Fred Parks, Plaintiff, Lone Star Security & Video, Inc., a California Corporation, Plaintiff-Appellant, and Fred Parks, Plaintiff, v. City of Los Angeles, Defendant-Appellee.
Attorney:Rockard J. Delgadillo, City Attorney; Laurie Rittenberg, Assistant City Attorney; and Michael D. Nagle (argued), Deputy City Attorney, Los Angeles, CA, for the defendant-appellant-cross-appellee. George M. Wallace, Wallace, Brown & Schwartz, Pasadena, CA, for the plaintiff-appellee-cross-appellant.
Judge Panel:Before BETTY B. FLETCHER, RAYMOND C. FISHER and RONALD M. GOULD, Circuit Judges.
Case Date:July 10, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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572 F.3d 685 (9th Cir. 2009)

LONE STAR SECURITY & VIDEO, INC., a California Corporation, Plaintiff-Appellee,

and

Fred Parks, Plaintiff,

v.

CITY OF LOS ANGELES, Defendant-Appellant.

Lone Star Security & Video, Inc., a California Corporation, Plaintiff-Appellant,

and

Fred Parks, Plaintiff,

v.

City of Los Angeles, Defendant-Appellee.

Nos. 07-56521, 07-56575.

United States Court of Appeals, Ninth Circuit.

July 10, 2009

Argued and Submitted May 7, 2009.

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[Copyrighted Material Omitted]

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Rockard J. Delgadillo, City Attorney; Laurie Rittenberg, Assistant City Attorney; and Michael D. Nagle (argued), Deputy City Attorney, Los Angeles, CA, for the defendant-appellant-cross-appellee.

George M. Wallace, Wallace, Brown & Schwartz, Pasadena, CA, for the plaintiff-appellee-cross-appellant.

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Appeal from the United States District Court for the Central District of California, William D. Keller, District Judge, Presiding. D.C. No. CV-03-05346-WDK.

Before BETTY B. FLETCHER, RAYMOND C. FISHER and RONALD M. GOULD, Circuit Judges.

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 not simply whether this claim makes out a federal constitutional violation-it does not-but whether the claim is so " ‘ wholly insubstantial and frivolous' " that the district court lacked jurisdiction to entertain it. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946)); see 28 U.S.C. § § 1331, 1343. We also address whether due process required the City to pro-vide notice to Lone Star, a chronic violator of the ordinance, 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 provided in this code." Id. § 22650. As an exception to this general 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 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, during 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 further 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 marketing strategy, Lone Star attached advertisements to a number of mobile trailers

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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 violation of Section 80.73.2. The City's policy is that LAPD and 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 ultimately 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 consecutive 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 preempted by the California Vehicle Code and thus invalid.2 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 constitutionally 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

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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 lacked subject matter jurisdiction over one of these claims, and properly rejected the other on its merits.

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 process 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, holding 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

The parties never presented to the district court, however, the question whether it had jurisdiction to address Lone Star's invalid-ordinance claim. Because " we have an independent obligation to examine our own and the district court's jurisdiction," Williams v. Boeing Co., 517 F.3d 1120, 1127 (9th Cir.2008) (internal quotation marks omitted), we ordered the parties to file supplemental briefs on " (1) whether Lone Star asserts a colorable federal constitutional claim in arguing that Los Angeles Municipal Code § 80.73.2 is invalid under the California Vehicle Code and (2) if not, whether the district court had subject matter jurisdiction to consider the claim." With the benefit of these submissions, we conclude that Lone Star's

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invalid-ordinance claim fails to raise a colorable federal question, and the district court therefore lacked subject matter jurisdiction over the claim.

A. Jurisdictional Framework

We do not lightly conclude that a § 1983 claim is so lacking that it fails to present a federal question. " To state a claim under § 1983, a plaintiff must," as Lone Star has done, " both (1) allege the deprivation of a right...

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