Friday, May 20, 2005

Tillison v. San Diego (9th Cir. - May 9, 2005)

Here's a case with definite local flavor (and interest). John Tillison operates "West Coast Towing" here in San Diego but takes umbrage at California Vehicle Code sect. 22658(l)(1), which has the audacity to provide that when a company involuntarily tows a vehicle from private property, the property owner or one of its agents has to give written permission and be present at the tow.

So he sues the City of San Diego, contending that this statute is preempted by -- of all things -- the Federal Aviation Administration Authorization Act of 1994. Which, notwithstanding its name, does indeed preempt lots of state laws relating to towing (and, for that matter, lots of other laws relating to other motorized movers of personal property). So Tillison, apparently of view that lawyers here in San Diego ain't so hot, hires a guy named Michael McGovern to litigate the lawsuit. McGovern, by the way, apparently likes to specialize in class actions on behalf of towing companies in lawsuits against local officials. He's also a DC lobbyist who argues for deregulation of the towing industry. Oh yeah. My kind of lawyer. I definitely am rooting for you, dude.

Anyway, Tillison's attorney successfully convinces the district court down here, Judge Brewster (who's a bright jurist), that he's right, and obtains a permanent injunction against enforcement of the statute. Which may not be as hard as it sounds, given that there's already a 9th Circuit decision from 2000 (Tocher v. City of Santa Ana) that had already invalidated the statute as preempted.

But the Supreme Court decided a case in 2002 called City of Columbus v. Ours Garage that limited the scope of FAAAA preemption and that provided some new guidelines about when state statutes might relate to "safety" and hence not be preempted by the Act. And the California legislature is no dope either, and responded to this decision (and, perhaps, Tillison's lawsuit) in August 2003 by amending Section 22658 to expressly state that its intent was to enhance safety in certain specified ways. And that's where we stand once the case gets to the Ninth Circuit. At which point Chief Judge Schroeder and her panel colleagues (Judges Gould and Clifton)swoop in and, in this opinion, reverse Judge Brewster, holding that the statute is not preempted.

I'm rarely going to cry when a towing company loses in court. Plus, I thought that Schief Judge Schroeder (and, for that matter, the California legislature) could have supported the statute in an additional manner as well, by finding -- quite reasonably -- that requiring the written authorization and presence of the property owner (or his agent) would diminish the possibility of fights between the tow truck driver and someone who's car is about to be towed but who contends that the property owner hadn't authorized or requested the tow.

So Tilliman and his lawyer lose, and the injunction is vacated. Which means, here at USD, we'll still have the campus police (which we used to call the "Campus Po" at Dartmouth) come out and carefully watch -- as the agent of the property owner (USD) -- as your car gets towed away. And I say that from experience, as my car has been involuntarily towed from USD on more than one occasion. Ah, the memories.

A little research reveals that things apparently aren't going so well for Tilliman on the nonlegal front as well. His company, "San Diego West Coast Towing Services, a California corporation," has recently been suspended (as of February 1, 2005) the California Francise Tax Board. (Which is apparently why the caption indicates that he's suing under his own name and a d/b/a.) Plus, his old web address,, has been deleted and is now available to the public. And now a loss in the 9th Circuit. Shucks. I feel bad for you, John. About as bad as I felt when I went to the USD parking lot and saw that my car wasn't still there.

Three cheers for California Vehicle Code sect. 22658(l)(1). And many thanks also to the fine counsel for the City of San Diego for securing the revival of this statute on this appeal, both of whom are graduates of the USD School of Law (Richard Ostrow -- formerly with the San Diego City Attorney's office and now with Kimball Tirey & St. John -- and Grant Telfer). The local flavor just keeps on coming.