O'Connell v. City of Stockton

• Citation: 27 Cal.Rptr.3d 696,128 Cal.App.4th 831
• Decision Date: 22 April 2005
• Docket Number: No. C044400.,C044400.
• Court: California Court of Appeals
• Parties: Kendra O'CONNELL, Plaintiff and Appellant, v. The CITY OF STOCKTON et al., Defendants and Respondents.

27 Cal.Rptr.3d 696

128 Cal.App.4th 831

Kendra O'CONNELL, Plaintiff and Appellant, v. The CITY OF STOCKTON et al., Defendants and Respondents.

No. C044400.

Court of Appeal, Third District.

April 22, 2005.

As Modified on Denial of Rehearing May 23, 2005.

Review Granted September 7, 2005.

Mark T. Clausen for Plaintiff and Appellant.

Meyers, Nave, Riback, Silver & Wilson, Joseph M. Quinn, Oakland; and Lori S. Whittaker, Deputy City Attorney, for the City of Stockton and Jayne W. Williams, Defendants and Respondents.

BUTZ, J.

In California, a motor vehicle is practically a necessity of life. Millions of our citizens depend on their cars, trucks or motorcycles to transport them to and from employment, school, medical facilities and childcare centers. In this case, we resolve a facial constitutional challenge to a municipal ordinance permitting the City of Stockton to seize and hold for forfeiture any motor vehicle used to solicit an act of prostitution or to attempt to consummate a drug transaction. The vehicle may be seized upon a peace officer's probable cause determination that the ordinance has been violated. As worded, the ordinance does not provide for any judicial determination of probable cause on the validity of the seizure until the forfeiture trial, which in practical effect, will not occur for a minimum of several weeks.

The trial court sustained, with leave to amend, a demurrer to plaintiff's first amended complaint as a city taxpayer, seeking to enjoin enforcement of the ordinance. Plaintiff did not amend her complaint following the court's order and judgment was entered on May 28, 2003. This appeal followed.

While rejecting other constitutional challenges, we shall conclude that the ordinance fails to pass muster under procedural due process guarantees of the federal and state Constitutions because it contains no provision for a reasonably prompt postseizure probable cause hearing on the validity of the City of Stockton's right to detain the vehicle.

At our request, the parties have filed supplemental briefing on the question whether state statutes governing drug-asset related forfeiture of vehicles and pertinent sections of the Vehicle Code preempt Stockton's municipal ordinance as to the forfeiture of vehicles used to acquire or attempt to acquire any controlled substance, and those used to solicit an act of prostitution.

After reviewing the supplemental briefing and other materials submitted by the parties,¹ we conclude, disagreeing with Horton v. City of Oakland (2000) 82 Cal. App.4th 580, 98 Cal.Rptr.2d 371 (Horton), that both aspects of the ordinance are preempted by state law. We, therefore, shall reverse the judgment and remand to the trial court with directions.

PROCEDURAL BACKGROUND

Plaintiff Kendra O'Connell filed this taxpayer action (Code Civ. Proc., § 526a) for declaratory and injunctive relief against the City of Stockton and its City Attorney (collectively, the City), seeking to enjoin enforcement of chapter 5, part XXV — Seizure and Forfeiture of Nuisance Vehicles (hereafter Part XXV), section 5-1000 et seq., of the Stockton Municipal Code² dealing with seizure and forfeiture of motor vehicles. Plaintiff's first amended complaint alleges that the ordinance, on its face, is unconstitutional on a number of grounds, including (1) substantive due process (first cause of action), (2) procedural due process (second cause of action), (3) violation of the excessive fines prohibition (third and fifth causes of action), (4) vagueness and (5) violation of the separation of powers doctrine (sixth cause of action). Plaintiff also seeks declaratory relief based on her contention that Part XXV is preempted by state law (eighth cause of action).³

The trial court sustained the City's demurrer with 15 days' leave to amend, finding that Part XXV was constitutional on its face and that the action was barred by the statute of limitations. Plaintiff acknowledges she did not avail herself of the opportunity to amend her complaint. She timely appealed from the judgment.

DISCUSSION

I. Statute of Limitations

Before reaching the substantive constitutional questions, we must first address the City's argument that this action is barred by the statute of limitations.

The City asserts, without a citation to the record or request for judicial notice, that Part XXV was adopted by the City Council on June 12, 2001, and made effective July 12, 2001. Relying on Code of Civil Procedure section 340, subdivision (b), which imposes a one-year time limit for bringing "[a]n action upon a statute for a forfeiture or penalty to the people of this state," the City concludes that the last day to bring a facial constitutional attack on the ordinance was June 11, 2002, more than five months before plaintiff's action was filed. We disagree.

Code of Civil Procedure section 340, subdivision (b) pertains to an action by a party to recover damages based on a forfeiture of a penalty provision imposed by statute. (E.g., Douglas v. Klopper (1930) 107 Cal.App.Supp. 765, 767, 288 P. 36 [treble damages for usury], disapproved on other grounds in Taylor v. Budd (1933) 217 Cal. 262, 267, 18 P.2d 333.) Where no action for a forfeiture is required to be brought, section 340 is inapplicable. (People v. Grant (1942) 52 Cal.App.2d 794, 799, 127 P.2d 19.)

This is a taxpayer action under Code of Civil Procedure section 526a, seeking to enjoin the expenditure of public funds resulting from the enforcement of an unconstitutional law. Plaintiff's interest as a taxpayer is sufficient to confer standing to maintain this action and bring it to final judgment, permanently enjoining unlawful expenditures. (Blair v. Pitchess (1971) 5 Cal.3d 258, 267-270, 96 Cal.Rptr. 42, 486 P.2d 1242.)

Moreover, the complaint alleges a "presently existing actual controversy" between plaintiff and the City over the validity of Part XXV, which she seeks to resolve by declaratory judgment. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 821, 107 Cal.Rptr.2d 369, 23 P.3d 601.) The continued illegal expenditure of public funds is an ongoing wrong. (Id. at pp. 822-824, 107 Cal. Rptr.2d 369, 23 P.3d 601.) Plaintiff's action is not untimely.

Acceptance of the City's argument would mean that a statute, facially unconstitutional when enacted, would acquire immunity from judicial review by the mere passage of time. Such an interpretation of Code of Civil Procedure section 340, subdivision (b) would clearly run afoul of the separation of powers doctrine, for a legislative body may not circumscribe the inherent power of the courts to review a statute's constitutional validity. (See Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 176-180 ; 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 56, pp. 97-98.)

II. Viability of an "As-Applied" Constitutional Challenge

Although the lion's share of plaintiff's arguments pertain to the facial constitutional validity of Part XXV, the first amended complaint contains sporadic references to extrinsic facts relating to the enforcement of the ordinance, and plaintiff suggests at various points in the briefing that she has asserted, or could if granted leave to amend assert, a successful as-applied constitutional attack on Part XXV. On this point, we agree with the City that the only challenge cognizable here is to the ordinance on its face.

Unlike plaintiff's original complaint, which contained an "as-applied" claim for relief, each cause of action of the first amended complaint asserts that Part XXV is facially invalid on various constitutional grounds. The amended complaint, despite occasional references to enforcement, proffers only a facial attack on the ordinance. Having so limited her complaint in the trial court, plaintiff may not expand her theories of relief on appeal. (See Uhrich v. State Farm Fire & Casualty Co. (2003) 109 Cal.App.4th 598, 616-617, 135 Cal. Rptr.2d 131.)⁴

In any event, plaintiff has failed to perfect an as-applied challenge to Part XXV. As stated in Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 40 Cal.Rptr.2d 402, 892 P.2d 1145 (Tobe), a constitutional challenge to a statute as applied "may not be made on demurrer to a complaint which does not describe the allegedly unlawful conduct or the circumstances in which it occurred." (Id. at p. 1083, 40 Cal.Rptr.2d 402, 892 P.2d 1145.) Plaintiff brought this lawsuit solely as a taxpayer action. She has not described any specific application of the statute resulting in injury to her or others. Consequently, we consider only the text of the ordinance itself, not its application to the facts of any particular case. (Zuckerman v. State Bd. of Chiropractic Examiners (2002) 29 Cal.4th 32, 39, 124 Cal.Rptr.2d 701, 53 P.3d 119 (Zuckerman); Tobe, supra, at p. 1084, 40 Cal. Rptr.2d 402, 892 P.2d 1145.)

III. Overview of Part XXV

Part XXV of the City's municipal code is captioned "Seizure and Forfeiture of Nuisance Vehicles." The ordinance provides that any vehicle used to solicit an act of prostitution, or to acquire or attempt to acquire a controlled substance, "is declared a nuisance, ... and abated as provided in this chapter." (§ 5-1000.) Upon proof that the vehicle was so used, the court "shall declare the property a nuisance" and order that it be sold and the proceeds distributed as provided in section 5-1008. (§ 5-1001.)

Vehicles subject to forfeiture may be seized (1) upon process issued by the court, (2) where the seizure is incident to an arrest or search under a search warrant, or (3) wherever "[t]here is probable cause to believe that the property was used in violation of this chapter." (§ 5-1003.) Whenever a peace officer seizes a vehicle he or she shall deliver a receipt to the person from whom it was seized. (§ 5-1004.)

Either the city attorney or the district attorney shall file a petition for forfeiture with the court upon a determination that the circumstances so warrant. (§ 5-1006, subd. (a).) The...