Cal. Tow Truck Ass'n v. City of S.F.

• Citation: 928 F.Supp.2d 1157
• Decision Date: 02 March 2013
• Docket Number: No. C 10–03184 CRB.,C 10–03184 CRB.
• Court: U.S. District Court — Eastern District of California
• Parties: CALIFORNIA TOW TRUCK ASSOCIATION, Plaintiff, v. CITY & COUNTY OF SAN FRANCISCO, Defendant.

928 F.Supp.2d 1157

CALIFORNIA TOW TRUCK ASSOCIATION, Plaintiff,

v.CITY & COUNTY OF SAN FRANCISCO, Defendant.

No. C 10–03184 CRB.

United States District Court, N.D. California.

March 2, 2013.

Patrick James Whalen, Brooks Ellison, The Law Offices of Brooks Ellison, Sacramento, CA, for Plaintiff.

Vince Chhabria, San Francisco City Attorney's Office, San Francisco, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART CROSS–MOTIONS FOR SUMMARY JUDGMENT

CHARLES R. BREYER, District Judge.

If tow trucks or tow firms do business in the City and County of San Francisco (“City”), the City requires them to participate in a permit system (“Permit System”). Plaintiff, the California Tow Truck Association (“CTTA”), seeks a declaration that the Permit System is preempted by the Federal Aviation Administration Authorization Act (“FAAAA”), along with a no-enforcement injunction and attorney's fees. The FAAAA expressly preempts state and municipal laws “related to a price, route, or service of” tow trucks, 49 U.S.C. § 14501(c)(1), but also expressly preserves state authority to regulate (1) motor vehicle safety, (2) minimum insurance requirements, and (3) the price of nonconsensual tows, id. §§ 14501(c)(2)(A), (c)(2)(C).

In December 2010, this Court held that the FAAAA preempted enforcement of the Permit System with respect to consensual towing and to tow trucks merely passing through the City on their way to someplace else, but not with respect to non-consensual tows. Cal. Tow Truck Ass'n v. City & Cnty. of S.F., No. C 10–03184, 2010 WL 5071602 (N.D.Cal. Dec. 7, 2010) (“CTTA I ”). Both sides appealed. The Ninth Circuit clarified that, while this Court had addressed the Permit System as a whole, case law required the Court to analyze each challenged provision individually. Cal. Tow Truck Ass'n v. City & Cnty. of S.F., 693 F.3d 847 (9th Cir.2012) (“CTTA II ”). The Ninth Circuit remanded for that purpose.

On remand, the parties filed cross-motions for summary judgment, both of which rely on the existing evidentiary record. CTTA MSJ (dkt. 44), City XMSJ (dkt. 45), CTTA Reply (dkt. 46), City Reply (dkt. 47). For the reasons set forth herein, the Court GRANTS the City's Motion and DENIES CTTA's Motion with respect to all but one of the challenged provisions, which imposes a price cap on the rates towing firms may charge. That provision aside, the challenged provisions of the Permit System either (1) fall within one of the three exceptions to FAAAA preemption or (2) are not subject to FAAAA preemption in the first place. As for the preempted price-cap provision, it is an ancillary provision that may be severed without disturbing the remainder of the Permit System. Finally, the Court holds that the Permit System applies without distinction between consensual and non-consensual tows.

I. BACKGROUND

CTTA initially brought this action for declaratory and injunctive relief in California state court in July 2010, whereupon the City timely removed to this Court. Not. of Removal (dkt. 1). CTTA's Complaint pled a cause of action based on the FAAAA preemption theory now at bar. Compl. (Not. of Removal, Ex. B) ¶¶ 18–22. It also pled two causes of action based on state-law preemption, a Fourth Amendment cause of action for illegal seizure, and a dormant Commerce Clause challenge. Id. ¶¶ 23–44. At the summary judgment phase, the City and CTTA filed cross-motions for summary judgment on the federal claims. CTTA also filed a separate motion for summary judgment on the state claims. On December 7, 2010, the Court partially granted both cross-motions as to the FAAAA preemption issue. CTTA I, 2010 WL 5071602, at *7. The Court held that the FAAAA preempted the Permit System to the extent that it “applies to tow drivers or tow firms engaged in towing activity other than non-consensual towing.” Id. at *1. That is, the Court held that the City could not enforce the Permit System with respect to tow trucks and firms that provide only consensual tows or to tow trucks merely passing through San Francisco, but that the City could enforce the Permit System with respect to tow trucks and firms performing non-consensual tows that begin or end within San Francisco. Id. at *7. Turning from the FAAAA preemption issue, the Court rejected the CTTA's Fourth Amendment and dormant Commerce Clause challenges and granted the City summary judgment on those claims. Id. The Court then declined to exercise supplemental jurisdiction over the CTTA's remaining state-law preemption claims and remanded those claims to state court. Id. at *7–8.

Both parties appealed the Court's FAAAA preemption ruling. On August 27, 2012, a Ninth Circuit panel issued CTTA II. The Ninth Circuit observed that this Court had analyzed the Permit System as a whole, as opposed to provision-by-provision, and concluded that in doing so the Court had “[run] afoul of American Trucking Associations v. City of Los Angeles, 559 F.3d 1046 (9th Cir.2009) [ (‘ATA I ’) ], which requires examining the specific provisions” of the permit scheme. CTTA II, 693 F.3d at 850–51. The Ninth Circuit emphasized that provision-by-provision analysis is required because the FAAAA's preemption exceptions might encompass some but not all of a particular scheme. Id. at 860–61. Without provision-specific analysis, “a single valid excepted provision could allow a vast amount of nonexcepted provisions to stand.” Id. at 863 (quoting ATA I, 559 F.3d at 1055 (brackets omitted)).

The Ninth Circuit remanded the case with instructions “to analyze the major provisions identified by the CTTA,” addressing, first, “whether a particular provision is even subject to pre-emption in the first place,” then, if it is, whether the provision is preempted, and then “whether the Permit System can survive, after severing provisions, if any, that are preempted (or not saved from preemption by a statutory exception).” Id. The Ninth Circuit specifically instructed the Court to consider on remand “intervening caselaw such as ATA III and its discussion of ‘mixed motives.’ ” Id. at 865 (quoting Am. Trucking Ass'ns v. City of L.A., 660 F.3d 384, 405 (9th Cir.2011) (“ATA III ”), as amended (Oct. 31, 2011), cert. granted in part,––– U.S. ––––, 133 S.Ct. 927, 184 L.Ed.2d 718 (2013)).

The Ninth Circuit raised two other points pertinent to this remand. The first flows from the fact that, in the earlier proceeding, this Court distinguished between consensual, non-consensual, and pass-through tows. The Ninth Circuit regarded this as an “as applied” preemption analysis and instructed this Court to “consider whether it can resolve the preemption questions without analyzing them on an ‘as applied’ basis.” Id. As explained in Section III.C below, the Court can and does. The second matter concerns pass-through towing. In light of evidence that the City neither applies nor enforces the Permit System with respect to pass-through tows, the Ninth Circuit concluded that CTTA lacked standing to challenge the Permit System as applied to pass-through towing. Id. at 866 (CTTA members' threat of injury “too ‘imaginary’ or ‘speculative’ to support jurisdiction” (quoting Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir.2000))). Accordingly, on remand, the Court does not address pass-through towing.

II. LEGAL STANDARDSA. Summary Judgment

Summary judgment is properly entered “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant bears the “burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The movant is not required to produce evidence negating the non-movant's claims. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885–89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (“[T]he purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues.”). If the movant carries its burden, the burden shifts to the nonmoving party to establish facts beyond the pleadings showing that there remains a triable issue of disputed material fact so that summary judgment is not appropriate. Celotex, 477 U.S. at 324, 106 S.Ct. 2548;Adickes, 398 U.S. at 157, 90 S.Ct. 1598.¹

B. FAAAA Preemption

“Congressional intent ... is the ultimate touchstone of preemption analysis.” Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir.2007). “Preemption analysis begins with the ‘presumption that Congress does not intend to supplant state law.’ ” Tillison v. Gregoire, 424 F.3d 1093, 1098 (9th Cir.2005) (quoting N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995)). “Although Congress clearly intended FAAAA to preempt some state regulations of motor carriers who transport property, the scope of the pre-emption must be tempered by the ‘presumption against the pre-emption of state police power regulations.’ ” Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). That is, the Court need not interpret “through a deregulatory prism aspects of the State regulatory process that Congress determined should not be preempted.” City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 440, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002) (emphasis in original) (internal punctuation omitted).

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