Court Strikes Forfeiture Ordinance for Cars Used to Solicit Prostitutes

Metropolitan News-Enterprise

Wednesday, January 9, 2008

Page 1

By STEVEN M. ELLIS, Staff Writer

A City of Los Angeles ordinance authorizing the seizure and forfeiture of vehicles used to solicit prostitution is expressly preempted by state law, this district’s Court of Appeal held yesterday.

Citing the recent California Supreme Court decision in O’Connell v. City of Stockton (2007) 41 Cal.4th 1061 that the California Vehicle Code preempted a similar ordinance, Div. One held that it was compelled to affirm the judgment of Los Angeles Superior Court Commissioner Victor Greenberg that the City of Los Angeles could not maintain forfeiture proceedings against Richard Reinsdorf’s 2000 Jeep Cherokee.

“Because the City of Los Angeles’s ordinance is substantively indistinguishable…,” Justice Miriam A. Vogel wrote, “it follows ineluctably that our ordinance is also expressly preempted by state law and that the judgment in favor of Reinsdorf must be affirmed.”

No Fees

However, in a separate portion of the opinion, Vogel wrote that Reinsdorf was not entitled to an award of attorney’s fees for his successful appeal because “it wasn’t Richard Reinsdorf who conferred a benefit on the defendants whose cars were wrongfully seized by the City of Los Angeles — it was Kendra O’Connell, the plaintiff in O’Connell.”

Reinsdorf was arrested for soliciting prostitution and his Jeep seized in April of 2005.  The city instituted forfeiture proceedings against his vehicle under the ordinance the following month.

The ordinance provides that any vehicle used to solicit or otherwise engage in an act of prostitution is a nuisance and may be seized by the city if it has probable cause to believe the vehicle was used for such a purpose. Once a seizure occurs, the ordinance requires that the seizing agency conduct an immediate investigation, and that notice of the seizure and the right to a post-seizure hearing to challenge the seizure’s validity be provided to the vehicle’s owner.

Reinsdorf challenged the ordinance, claiming that it was preempted under a Third District Court of Appeal ruling in O’Connell v. City of Stockton (2005) 128 Cal.App.4th 831, and the trial court agreed, granting judgment against the city and awarding Reinsdorf attorney fees in the amount of $49,735.90. 

Oakland Ordinance

The city appealed, relying on Horton v. City of Oakland (2000) 82 Cal.App.4th 580, in which the First District Court rejected a similar preemption challenge to a City of Oakland ordinance authorizing the civil forfeiture of vehicles involved in soliciting prostitution or acquiring drugs.

The Court of Appeal for this district initially rejected Reinsdorf’s argument.  However, the Supreme Court had already granted review in O’Connell to resolve the split between the First and Third districts, so it granted review to Reinsdorf, held the case pending its decision, and then transferred the case back to the Second district with instructions to vacate its decision and reconsider in light of O’Connell.

Writing for the Court of Appeal, Vogel quoted the Supreme Court’s decision in O’Connell to point out that the California Vehicle Code generally prohibits local regulation of “matters covered” by the code, but that it allowed a city or county to adopt an ordinance establishing a five-year pilot program to implement procedures for declaring a motor vehicle to be a public nuisance when used in the commission of certain crimes.

However, she noted that while the pilot program allowed for the development of procedure to enjoin and abate such nuisances, it allowed only for removal of the vehicle — not forfeiture.

“There being no express legislative authorization for any other form of local regulation of the matter…,” she quoted, “Vehicle Code section 21 precludes an ordinance…which seeks to regulate vehicle use in soliciting prostitution by requiring forfeiture of the vehicle.  Under Vehicle Code section 21, therefore, the City’s ordinance is expressly preempted by state law.”

In a separate portion of the opinion, the court affirmed Reinsdorf’s original attorney fee award, but rebuffed his contention that he had succeeded in enforcing an important right affecting the public benefit which entitled him to additional fees for the cost of his appeal.

“Reinsdorf’s case just happened to be in the pipeline when the Supreme Court granted review in O’Connell,” Vogel wrote, “and today’s declaration that the Los Angeles ordinance is invalid adds nothing to the equation.”

Vogel was joined in her opinion by Justices Robert M. Mallano and Frances Rothschild.

A spokesperson for the city declined comment pending a review of the decision, and counsel for Reinsdorf could not be reached for comment.

The case is City of Los Angeles v. 2000 Jeep Cherokee, B185673.

Copyright 2008, Metropolitan News Company

http://www.metnews.com/articles/2008/city010908.htm

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