Preview
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2
Mark T. Clausen
Attorney at
18 E.
Law
Fulton Road
(Calif. SB¹ 196721)
SAN
IIIED
MATEO COUNTY
3
Santa Rosa,
Telephone:
California 95403
(415) 221-1817
H IC — / MAR 3- F00
Cell: (707) 235-3663 lese. ClerkoftheS~r rCourt
4 Facsimile: (707) 575-3826 By
Email: MarkTClausenSBCGlobaknet oeptrpt RK
5
Attorney for Plaintiff
Patricia Birkle
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
COUNTY OF SAN MATEO
[An Unlimited Civil Class Action]
10
11 PATRICIA BIRKLE and all others Case No.
similarly situated,
12 COMPLAINT FOR DECLARATORY
Plaintiffs/Petitioners, AND INJUNCTIVK RELIEF,
13
DAMAGES AND WRIT OF MANDAMUS
14 vs. AND/OR MANDATE
THE CALIFORNIAHIGHWAY
PATROL, STATE OF CALIFORNIA
and DOES 1-10, inclusive,
17
Defendants/Respondents.
/
19
Comes now plaintiffPatricia Birkle who hereby alleges, claims and prays as follows:
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JURISDICTION
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1. The court has subject matter jurisdiction over the matters herein alleged and the action
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is properly filed as an unlimited civil action, because the total damages sought on behalf of
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24 plaintiffand all others similarly situated exceeds the minimum amount for an unlimited civil
action, and declaratory and injunctive relief are sought pursuant to Code of Civil Procedure
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sections 526, 526a and 1060 and U,S.C, tj $1983-1986,
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2. The Court has personal jurisdiction over defendants as such are located and operate in
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COMPLAiNT: Btrlde v CHP, eral
the County of San Mateo, State of California.
VENUE
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3. Venue in the Superior Court of the County of San Mateo is appropriate because the acts
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complained of occurred and are occurring in the County of San Mateo.
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PARTIES
7 4. PlaintiffPatricia Birkle ("BIRKLE"or "plaintiff*) is an individual over the age of 18
and a taxpaying resident of the State of California who within one year prior to the tiling of this
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action paid state and local taxes, such that she has taxpayer standing pursuant to Code of Civil
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Procedure section 526a. At all time pertinent hereto BIRKLE was the owner of one 1992 BMW
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325i, California License II2PZK490 ("BIRKLE's vehicle*').
13 5. Defendant California Highway Patrol ("CHP") is a law enforcement agency organized
14 under the laws and established, controlled and operated by and on behalf of defendant the State of
15
California.
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GENERAL ALLEGATIONS
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6. On Sunday, January 25, 2010 at approximately 01:00 hours CHP officers effected an
19 arrest of an individual by the name of John Eskridge for driving under the influence of alcohol.
20 Mr. Eskridge was driving BIRKLE's vehicle. Mr. Eskridge California driver's license was found
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to be suspended. The statutory basis for the suspension is not known to plaintiffbecause CHP has
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not provided plaintiffwith this information.
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7. Pursuant to Vehicle Code section 14602.6, which subject to statutory exceptions
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provides for the 30-day impound of a vehicle operated by a person with a suspended or revoked
26 license, the CHP ordered BIRKLE's vehicle impounded for 30 days. The vehicle was towed by
"Quality Towing" to its impound/storage lot in the Redwood City area.
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COMPLAINT. Bible v CBP, er e/
8. Pursuant to Vehicle Code sections 14602.6, subdivision (b), and 22852 the legal andlor
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registered owner of a vehicle impounded pursuant to Vehicle Code section 14602.6 is entitled to
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an impound hearing conducted by the seizing agency, at which the seizing agency must present
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evidence establishing grounds for the initial seizure and impound of the vehicle and the ovmer
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may present evidence to challenge the grounds for impound or establish statutory grounds for
7 early release in accordance with subdivisions (b) and (d) through Q) of section 14602.6, including
"mitigating circumstances," the vehicle is a rental car, was subject to bailment or was stolen, or
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the offending driver has subsequently obtained a valid license. (See, gen., Smith v Santa Rosa
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Police Department (2002) 97 Cal.App.4th 546 ("Smith'*); Samples v. Brown (2007) 146
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Cal.App.4th 787 ("Samples"
).)'3
9. On January 26, 2010 BIRKLE personally appeared at the Redwood City branch office
of the CHP to request the release of BIRKLE's vehicle. She initially spoke with an unknown
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CHP officer and at that time and/or later in person and by telephone spoke with Lt. Fonsaco (sic.).
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10. Lt. Fonsaco spoke with BIRKLE "over-the-counter" and later by telephone. Lt.
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Fonsaco deemed these unrecorded, undocumented conversations to be an impound hearing in
19 accordance with Vehicle Code sections 14602.6 and 22852.
20 11. Lt. Fonsaco and CHP did not give BIRKLE notice of the available statutory grounds to
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secure release of BIRKLE's vehicle, the documents or other evidence on which CHP relied for the
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impoundment of the vehicle, or the specific statutory basis for the suspension of Mr. Eskridge's
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driver*s license.
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25 12. BIRKLE told Lt. Fonsaco the following. She and Mr. Eskridge were in a romantic
26 relationship and lived together. BIRKLE was away in Sacramento when she learned that Mr.
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28 'Plaintiff's counsel at bar was the attorney for the plaintiffin each of these cases.
COMPLAINT Birtde v CHP, et at -3-
Eskridge had been arrested and BIRKLE's vehicle had been impounded. BIRKLE did not know
2 BIRKLE's vehicle. Mr. Eskridge had never previously driven
that Mr. Eskridge had borrowed
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that vehicle or any other vehicle owned by BIRKLE while Eskridge had a suspended license.
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Eskridge had not asked to drive BIRKLE's vehicle or given any indication that he intended to do
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so. IfEskridge had asked, BIRKLE would have said, aNo," because BIRKLE knew Eskridge had
7 a suspended license. BIRKLE simply went on a bender —began drinking heavily —without
warning, and took the vehicle without asking.
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13. BIRKLE thus had no knowledge that Mr. Eskridge was operating BIRKLE's vehicle.
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In a subsequent telephone conversation with BIRKLE's attorney, Lt. Fonsaco agreed that BIRKLE
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did not know that Mr. Eskridge was operating BIRKLE's vehicle.
13 14. Lt. Fonsaco refused to release the vehicle from impound. He did not issue a written
14 statement of decision and instead orally explained his reasoning to BIRKLE and, later, BIRKLE's
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counsel.
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15. Lt. Fonsaco said there were 2 reasons for his refusal to release the vehicle from
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impound.
19 16. First, under standard CHP policy the failure of a legal or registered owner to file a
20 stolen vehicle report when they claim their vehicle was operated without their knowledge or
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permission, warrants the denial of the release of the vehicle from 30-day impound under Vehicle
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Code section 14602.6.
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17. In accordance with this policy, BIRKLE was advised by Lt. Fonsaco that she could
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file a stolen vehicle report against Mr. Eskridge. BIRKLE declined, stating that although Mr.
26 Eskridge drove BIRKLE's vehicle without her knowledge and permission, she did not consider
the vehicle stolen. When Mr, Eskridge told BIRKLE the vehicle had been impounded following
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COMPLAINT. Birkle v. CHP, ei ak -4-
his arrest for DUI, Mr. Eskridge said he had taken the vehicle for a few days and planned to return
2
it. In Ms. BIRKLE's opinion, this was not theft. She accordingly declined to file a stolen vehicle
3
report.
4
18. Second, under standard CHP policy the failure of the owner of a vehicle to take
5
precautions to prevent an unlicenced driver from gaining access to the vehicle, warrants denial of
7 the release of the vehicle from impound pursuant to Vehicle Code section 14602.6.
19. Lt. Fonsaco said that, while BIRKLE had not given Mr. Eskridge permission to
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operate BIRKLE's vehicle or the keys to the vehicle, BIRKLE had not taken any specific
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precautions to prevent Eskridge from gaining access to the vehicle —such as, for example, locking
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up her car keys. When she left for Sacramento BIRKLE left the keys to the vehicle ather
13 residence. Mr. Eskridge took advantage of BIRKLE's absence to gain access to the keys and
14 drive BIRKLE*s vehicle.
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20. Lt. Fonsaco concluded, in essence, that BIRKLE was negligent in failing to take steps
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to prevent Mr. Eskridge &om driving BIRKLE's vehicle.'7
21. Following the so-called impound hearing BIRKLE received in the mail a CHP-180
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19 form. This was the only notice provided by CHP. The form stated that her vehicle had been
20 impounded and she had the right to hearing. The form does not advise of the available statutory
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grounds for securing release from impound, the statutory basis for Mr. Eskridge's license
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suspension, the evidence CHP relied on to support the impound or the basis for CHP' refusal to
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'The 2 policies cited by Lt. Fonsaco have long been memorialized in a long-outdated and
legally erroneous pamphlet handed out to drivers and other law enforcement agencies throughout the
27 state, and available on CHP's website. A copy of the pamphlet as printed from CHP's website is
attached as Exhibit A. Numerous other law enforcement agencies refer to this pamphlet and/or quote
28 verbatim &om it, adopting these policies as their own. (See, e.g., Ex. B hereto.)
COMPLAINT: Birkle v. CHP, et al
release the vehicle following the so-called impound hearing.'
22. Following the so-called impound hearing BIRKLE's counsel directed a letter to Lt.
3
Fonsaco explaining in detail, with citations to controlling authority, why the decision was contrary
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to law, BIRKLE's vehicle should be immediately released and CHP must change the standard
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policies relied on by Lt. Fonsaco. In the event that CHP believed BIRKLE's counsel's factual or
7 legal analysis was incorrect in any respect, BIRKLE's counsel also requested a written statement
of decision setting forth the factual and legal basis for CHP's refusal to release BIRKLE's vehicle,
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and offered the controlling authority for this request. CHP did not reply and to date has provided
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nothing in writing to explain the factual or legal basis for its decision. Plaintiffdoes not know if
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CHP made any record of the events or so-called impound hearing.
13 23, BIRKLE's vehicle remained in impound for 16 days. For reasons unknown CHP
issued a vehicle release form on the 16 day, rather than holding the vehicle in impound for 30
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days as provided by Vehicle Code section 14602.6.'o secure release BIRKLE was required to
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pay CHP a vehicle release fee pursuant to Vehicle Code sections 14602.6 and 22850.5 and pay the
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towing company for the initial tow, a "lien-processing fee," and daily storage pursuant to Vehicle
19 Code sections 14602.6, 22851 and 22851.12 and Civil Code sections 3068.1 and 3073.
20 The total fees and costs were over $ 1,200.00.
21
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'Virtually every law enforcement agency in the state follows CHP's lead and uses only a
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CHP-180 form to provide notice of impound and the right to a hearing.
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"Plaintiffs counsel suspects that the early release was Lt. Fonsaco's way of "splitting the
baby," so to speak. Although Vehicle Code section 14602.6 requires a 30-day impound and no
authority exists allowing an agency or administrative hearing officer to exercise a foun of quasi-
judicial sentencing discretion by selecting a lesser number of days, countless agencies do so quite
frequently. It is likelythat Lt. Fonsaco concluded that 30-days was too long under the circumstances,
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so he authorized release atter only 16 days. While this reduction is appreciated, the vehicle should
28 have been released 15 days earlier, immediately following the so-called impound hearing.
COMPLAINT Birklev CHP, er al -6-
I 24. While BIRKI.E*s vehicle was in impound she was denied its use and enjoyment.
FIRST CAUSE OF ACTION
For Writ of Mandamus or Mandate Compelling CHP to Reverse its Decision
25, The decision of CHP refusing to release BIRKLE's vehicle from impound and
requiring that the vehicle be held in impound for what was then stated as 30-days but proved to be
7 an additional 15 days beyond the January 26, 2010 so-called impound hearing, and requiring that
she pay over $ 1,200 to secure the vehicle's release, was contrary to law, an abuse of discretion
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and arbitrary and capricious.
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26. Pursuant to Smith, supra, 97 Cal.App.4th 546, CHP was required to release the
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vehicle immediately following the so-called impound hearing held January 26, 2010 because
13 BIRKLE indisputably established that she did not know her vehicle was being operated by a
person with a suspended or revoked license.
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27. The CHP requirements that BIRKLE ftle a stolen vehicle report and/or prove she took
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precautions to prevent Mr. Eskridge from driving BIRKLE's vehicle are contrary to Smith and the
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plain language and legislative intent of Vehicle Code section 14602.6. CHP has simply
19 implemented under a different name essentially the same policy found unlawful in Smith.
20 28. BIRKLE cannot provide a copy of the administrative record in accordance with Code
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of Civil Procedure section 1094.5 because there is no written record of the evidence presented at
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the so-called impound hearing or legal and factual basis for the decision of CHP, other than a
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letter prepared by BIRKLE's counsel, a copy of which is attached as Exhibit C. As stated, CHP
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did not respond to the letter.'6
27 'The absence of an adminisuative record and written statement of decision is the basis for
a separate cause of action for violation of BIRKLE's state and federal constitutional rights to due
28 process of law.
COMPLAINT. Birkle v CHP, et al -7-
I 29. Pursuant to Code of Civil Procedure sections 1085 through 1096 BIRKLE is entitled
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to the issuance of a writ of mandamus or mandate compelling CHP to reverse its decision, pay
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restitution to BIRKLE in an amount equal to all release fees and costs incurred and paid for the
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period after January 26, 2010, and pay damages for BIRKLE's loss of use and enjoyment of the
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vehicle and violation of her constitutional and statutory rights.
7 30, As CHP and/or the State of California may argue that BIRKLE by failing to seek a
writ of mandamus/mandate BIRKLE has failed to exhaust available remedies and may not assert
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the constitutional claims set forth herein, BIRKLE alleges her entitlement to writ relief in addition
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to the other claims set forth herein. In so alleging BIRKLE asserts she has no plain, speedy or
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adequate remedy at law other than the issuance of a writ of mandamus/mandate compelling CHP
13 to reverse its erroneous decision and pay restitution and damages to BIRKLE in accordance with
Code of Civil Procedure sections 1085-1096.
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SECOND CAUSE OF ACTION
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For Writ of Mandate and/or Declaratory and Injunctive Relief Compelling
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CHP to Change its Policies and Practices to Comport with Law
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19 31. There exists a current and present controversy between the parties for which a writ
20 of mandate pursuant to Code of Civil Procedure sections 526a and 1085 and/or declaratory and
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injunctive relief pursuant to Code of Civil Procedure sections 526, 526a and/or 1060 is/are
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appropriate.
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32. As a matter of policy and practice the CHP provides notice of impoundment of a
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vehicle under Vehicle Code section 14602.6 by mailing a written CHP-180 form. The form
26 includes a space for "statutory authority" for the impound, wherein CHP writes "Vehicle Code
14602.6" or "V.C. 14602.6." The back of the form states the registered or legal owner of the
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COMPLAINT. Brrkle v CHP, et a/ -8-
vehicle may contact the CHP within 10 days to contest the grounds for "storage." CHP does not
2
provide any additional notice.
3
33. Plaintiffcontends this policy and practice violates the state and federal due process
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clauses because the CHP must —but with the exclusive use of the CHP 180 form currently does
5
not —provide notice of:
7 (I) The specific factual basis for the impound, including the specific statutory grounds for
8
the suspension of the driver's license, so the seizing agency and vehicle owner may determine
9
whether the specific suspension at issue is subject to Vehicle Code section 14602.6',
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(2) Copies of all police reports and other documents on which CHP intends to rely to
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13 'In this respect, subdivision (d)(1)(C) of Vehicle Code section 14602.6 provides:
14
An impounding agency shall release a vehicle to the registered owner or his or her
15 agent prior to the end of 30 days'mpoundment under any of the following
circumstances: ...When the license of the driver was suspended or revoked for an
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offense other than those included in Article 2 (commencing with Section 13200) of
17 Chapter 2 of Division 6 or Article 3 (commencing with Section 13350) of Chapter
2 of Division 6. (Italics added.)
18
Thus, suspension which do not fall under Vehicle Code sections 13200-13392 are exempt
from impound under Vehicle Code section 14602.6. The excluded suspensions include Vehicle
Code sections: 1 28 I 0.5 (negligent operation - excessive violation points), 128 14.6 (provisional
20
license suspensions), 12818 (failed reexamination), 12819 (failure to respond to reexamination
21 notice), 13801 (failure to submit to a DMVreexamination), 13953 (suspension or revocation based
on reexamination), 13954(A) (in an accident within 5 years of a manslaughter conviction),
13954(D)(1) (in an accident with a .08 BAC or higher), 13954(D)(2) (in an accident caused by a
prohibited act or neglect of duty), 16004(A) (failure to report an accident to DMV), 16030 (false
evidence of insurance), 16070 (failure to provide proof of insurance at an accident scene), 16071
24 (failure to provide proof of insurance in another state, resulting in suspension by the other state),
16072(A) (failure to maintain insurance), 16073 (b) (commercial operator suspension), 16370 and
25 16370.5 (unsatisfied civiljudgment), 16381 (default on payments onajudgment), 16484(insurance
coverage lapse), 22454.5 (3'onviction for passing a school bus), 23247(G)(I) and 23247(2)
(operation of a vehicle without a court ordered DUI ignition interlock device), 34623 (motor carrier
27 suspension), and 42001.1 (crossing guard violation with 2 priors); as well as Family Code section
17520 (failure to pay child support). (See also Fam. Code $ 17520, subd. (w) [expressly exempting
28 such suspensions from Veh. Code )14602.6j.)
COMPLAINT, Birldev CHP, ei al
justify the impound, so that the vehicle owner may have notice of the evidence to be presented
2
against him/her;
3
(3) The specific statutory grounds for securing release from impound, as set forth in
4
5
subdivisions Q) and (d)(1) of Vehicle Code section 14602.6, which provide that a vehicle must be
immediately released and is not subject to continued impoundment when the owner establishes
7 that the circumstances are "mitigating" within the meaning of subdivision (b) of section 14602.6
(see Smith, supra, 97 Cal.App.4th 546) or the following circumstances exist under subdivision
9
(d)(1):
10
(A) When the vehicle is astolen vehicle.
12 (B) When the vehicle is subject to bailment and is driven by an unlicensed
employee of a business establishment, including a parking service or repair garage.
13
(C) When the license of the driver was suspended or revoked for an offense other
14 than included in Article 2
those (commencing with Section 13200) of Chapter 2 of
15
Division 6 or Article 3 (commencing with Section 13350) of Chapter 2 of Division
6.
16
(D) When the vehicle was seized under [section 14602.6] for an offense that does
17 not authorize the seizure of the vehicle.
(E) When the driver reinstates his or her driver's license or acquires a driver'
19 license and proper insurance. (Italics added.)
20 (4) A copy of the CHP branch office's policies and/or guidelines for release based on
21 "mitigating circumstances" —as the circumstances a particular branch considers "mitigating"
differ from and often are in direct conflict with those of other CHP branches and other law
enforcement agencies; and
23
(5) A written statement of decision summarizing the factual and legal grounds for refusing
24
to release a vehicle following a hearing conducted pursuant to Vehicle Code sections 14602.6,
25
subdivision (b), and Vehicle Code section 22852.
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34. Plaintifffurther contends the CHP's standard policy and practice of requiring a
vehicle owner to file a stolen vehicle report and prove (s)he took precautions to prevent the
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COMPLAINT. Birkle v CHP, el al -10-
offending driver from having access to the vehicle, are contrary to Smith, supra, 97 CaLApp.4th
2 546 and the plain language and legislative intent of Vehicle Code section 14602.6. CHP has
simply implemented under a different name essentially the same policy found unlawful in Smith.
35. Plaintiff further contends the CHP must cease dissemination of the pamphlet and
corresponding information posted on CHP's website attached as Exhibit A, with respect to the
5
following information:
6
"The following excuses WILLnot HELP YOU when your vehicle is being driven
7 by an unlicensed driver and is stopped by law enforcement officers for any reason.
"
Yt was a minor infraction. IP7ty was my car impounded?'0
"Both 14602.6 and 14607.6 of the CVC give law enforcement officers the
authority to impound your vehicle when it is being operated by an 'unlicensed
driver'license not issued, suspended or revoked).
Your car is being impounded because you have committed a misdemeanor, not an
12
infraction. By operating a motor vehicle without a valid driver's license you have
13 committed a serious offense. In addition to the citation, the vehicle you are
operating willbe impounded and held for 30 days, or possibly forfeited.
14
15
" 7 don 't understand. II7ty 30 days 8 I absolutely need my car!
'6
The Legislature intended to provide safer roads for California's motoring public by
removing the vehicles driven by unlicensed, suspended, or revoked drivers for 30
17 days. A serious violation of the law calls for a serious response. The 30-day
impound begins on the calendar day the car is towed and will be released at the
conclusion of the 30th day during normal business hours.
19
"'My brother borrowed the car '
20
or ..
21
22
"7 did not know his license was suspended'3
or .
24 Under Section 14604 CVC, the owner has a duty to assure the person driving their
25 vehicle possesses a valid license; however, ifyou allow or permit anyone,
including: your wife, son or daughter, or friend or relative, to drive your vehicle
26 and that person does not have a valid driver's license, you will be responsible for
towing and storage fees. You will not have access to the vehicle for 30 days.
27
"'She took the car without my permission
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Birkte v CHP, et at 'OMPLAtNT: -11-
" 'I am the owner ofthe car and I have a valid license.'o
say someone has taken your car without your permission is not a valid excuse.
Ask yourself: How did this happen? Have you allowed him /her to use your car
before? Did you ask to see his / her license? Any vehicle impounded will be
released to the registered owner aAer the 30 days.
7 Note: If, in fact,it is determined that your car was taken by an unlicensed driver
without your knowledge or permission, a stolen vehicle report must be filed. The
person charged with this crime will be arrested.'
36. Plaintiff contends this information is contrary to Smith, supra, 97 Cal.App.4th 546
10
and the plain language and legislative intent of Vehicle Code section 14602.6. Smith expressly
11
held that "Idid not know his license was suspended" is a "mitigating circumstance" under
13 subdivision (b) of Vehicle Code section 14602.6 which, iffound true following an impound
14 hearing, requires the immediate release of a vehicle from impound —proof of compliance with
15
Vehicle Code section 14604 is not required. The holding in Smith also includes as a "mitigating
16
circumstance" the excuse that "My brother borrowed the car" or "She took the car without my
17
permission" and "Iam the owner ofthe car and I have a valid license." The filing of a stolen
19 vehicle report is not required. And the statutory basis for suspension —i.e., "It was a minor
20 infraction" —does matter, as such may be a "mitigating circumstance" under subdivision (b) or
21 of Vehicle Code section 14602.6. (See fn. 6, ante.)
mandate release under subdivision (d)(1)(C)
22
37. The information is also misleading because it suggests that no excuse of any kind will
23
be accepted and there are no exceptions to 30-day impound, when in fact subdivisions (b) and
24
(d)(1) of Vehicle Code section 14602.6 and Smith expressly provide for a host of exceptions and
26
27 'As noted, numerous other law enforcement agencies disseminate this information in
pamphlet form or on their wesbites, for example: the police departments of the Cities of Gait,
2g Orange, Newman and Rohnert Park. (See Exhibit B hereto.)
COMPLAtNT: Birkle v CHP, ei at -12-
Samples v. Brown, supra, 146 Cal.App.4th 787 commands that the seizing law enforcement
2
agency must carefully scrutinize an offered excuse or justification to determine whether it is
3
"mitigating" under subdivision (b) of Vehicle Code sections 14602.6.
4
38. In addition to being distributed in pamphlet form and displayed on CHP's and other
5
law enforcement agencies'ebsites (see Exhibits A and B hereto), the information is conveyed by
7 CHP orally to those who inquire about the impoundment of their car. As a result, many vehicle
owners do not even bother to request an impound hearing, because they have been told there is no
9
acceptable excuse and no exceptions. Those who do request an impound hearing are often
10
erroneously denied the early release of their vehicle based on the application of the CHP policy
11
described herein, as occurred with the plaintiffat bar.
13 39. Defendants dispute plaintiffs contentions and unless ordered, enjoined or mandated
14 by this court intend to and udll continue to maintain the status quo, enforce the policy described
15
herein, issue notice only through the use of a CHP-180 form, and otherwise act unlawfully as
16
described above. In so acting, defendants utilize paid employees such that declaratory and
17
injunctive relief and/or a writ of mandate is appropriate pursuant to Code of Civil Procedure
19 section 526a.
20 40. Wherefore, it is necessary for the court to issue a declaratory order determining the
21
duties and obligations of the defendants with respect to the notice which constitutionally they
22
must provide, and whether the policy and practice described above is lawful and in accordance
23
with Smith and Vehicle Code section 14602.6; and to issue an injunction or writ of mandate
24
directing CHP to give appropriate notice and comply with the law as described above.
27
28
COMPLAINT; Birkle v CHP, et al -13-
1 THIRD CAUSE OF ACTION
2
[For Declaratory & Injunctive Reliefj
3
41. There currently is a dispute between the parties for which declaratory and injunctive
4
relief is appropriate pursuant to Code of Civil Procedure sections 526, 526a and/or 1060.
6 42, Pursuant to Vehicle Code sections 14602.6, subdivision (a), and 22852, subdivision
7 (c), following the impoundment of a vehicle the CHP may and always does use its own officers to
conduct impound hearings to determine whether a vehicle was lawfully impounded in the first
9
instance and/or should be released prior to the expiration of 30-days pursuant to subdivisions (b)
10
and (d)(1) of Vehicle Code section 14602.6.
11
43. Between 2000 and the filing of this action approximately 50% of all vehicles seized
12
13 and impounded by the CHP pursuant to Vehicle Code section 14602.6 were sold following the
expiration of the 30-day period of impoundment, to satisfy the towing and storage costs related to
15
the impound, as permitted
Preview
1 2 Mark T. Clausen Attorney at 18 E. Law Fulton Road (Calif. SB¹ 196721) SAN IIIED MATEO COUNTY 3 Santa Rosa, Telephone: California 95403 (415) 221-1817 H IC — / MAR 3- F00 Cell: (707) 235-3663 lese. ClerkoftheS~r rCourt 4 Facsimile: (707) 575-3826 By Email: MarkTClausenSBCGlobaknet oeptrpt RK 5 Attorney for Plaintiff Patricia Birkle SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN MATEO [An Unlimited Civil Class Action] 10 11 PATRICIA BIRKLE and all others Case No. similarly situated, 12 COMPLAINT FOR DECLARATORY Plaintiffs/Petitioners, AND INJUNCTIVK RELIEF, 13 DAMAGES AND WRIT OF MANDAMUS 14 vs. AND/OR MANDATE THE CALIFORNIAHIGHWAY PATROL, STATE OF CALIFORNIA and DOES 1-10, inclusive, 17 Defendants/Respondents. / 19 Comes now plaintiffPatricia Birkle who hereby alleges, claims and prays as follows: 20 JURISDICTION 21 1. The court has subject matter jurisdiction over the matters herein alleged and the action 22 is properly filed as an unlimited civil action, because the total damages sought on behalf of 23 24 plaintiffand all others similarly situated exceeds the minimum amount for an unlimited civil action, and declaratory and injunctive relief are sought pursuant to Code of Civil Procedure 26 sections 526, 526a and 1060 and U,S.C, tj $1983-1986, 27 2. The Court has personal jurisdiction over defendants as such are located and operate in 28 COMPLAiNT: Btrlde v CHP, eral the County of San Mateo, State of California. VENUE 3 3. Venue in the Superior Court of the County of San Mateo is appropriate because the acts 4 complained of occurred and are occurring in the County of San Mateo. 5 PARTIES 7 4. PlaintiffPatricia Birkle ("BIRKLE"or "plaintiff*) is an individual over the age of 18 and a taxpaying resident of the State of California who within one year prior to the tiling of this 9 action paid state and local taxes, such that she has taxpayer standing pursuant to Code of Civil 10 Procedure section 526a. At all time pertinent hereto BIRKLE was the owner of one 1992 BMW 11 325i, California License II2PZK490 ("BIRKLE's vehicle*'). 13 5. Defendant California Highway Patrol ("CHP") is a law enforcement agency organized 14 under the laws and established, controlled and operated by and on behalf of defendant the State of 15 California. 16 GENERAL ALLEGATIONS 17 6. On Sunday, January 25, 2010 at approximately 01:00 hours CHP officers effected an 19 arrest of an individual by the name of John Eskridge for driving under the influence of alcohol. 20 Mr. Eskridge was driving BIRKLE's vehicle. Mr. Eskridge California driver's license was found 21 to be suspended. The statutory basis for the suspension is not known to plaintiffbecause CHP has 22 not provided plaintiffwith this information. 23 7. Pursuant to Vehicle Code section 14602.6, which subject to statutory exceptions 24 provides for the 30-day impound of a vehicle operated by a person with a suspended or revoked 26 license, the CHP ordered BIRKLE's vehicle impounded for 30 days. The vehicle was towed by "Quality Towing" to its impound/storage lot in the Redwood City area. 28 COMPLAINT. Bible v CBP, er e/ 8. Pursuant to Vehicle Code sections 14602.6, subdivision (b), and 22852 the legal andlor 2 registered owner of a vehicle impounded pursuant to Vehicle Code section 14602.6 is entitled to 3 an impound hearing conducted by the seizing agency, at which the seizing agency must present 4 evidence establishing grounds for the initial seizure and impound of the vehicle and the ovmer 5 may present evidence to challenge the grounds for impound or establish statutory grounds for 7 early release in accordance with subdivisions (b) and (d) through Q) of section 14602.6, including "mitigating circumstances," the vehicle is a rental car, was subject to bailment or was stolen, or 9 the offending driver has subsequently obtained a valid license. (See, gen., Smith v Santa Rosa 10 Police Department (2002) 97 Cal.App.4th 546 ("Smith'*); Samples v. Brown (2007) 146 11 Cal.App.4th 787 ("Samples" ).)'3 9. On January 26, 2010 BIRKLE personally appeared at the Redwood City branch office of the CHP to request the release of BIRKLE's vehicle. She initially spoke with an unknown 15 CHP officer and at that time and/or later in person and by telephone spoke with Lt. Fonsaco (sic.). 16 10. Lt. Fonsaco spoke with BIRKLE "over-the-counter" and later by telephone. Lt. 17 Fonsaco deemed these unrecorded, undocumented conversations to be an impound hearing in 19 accordance with Vehicle Code sections 14602.6 and 22852. 20 11. Lt. Fonsaco and CHP did not give BIRKLE notice of the available statutory grounds to 21 secure release of BIRKLE's vehicle, the documents or other evidence on which CHP relied for the 22 . impoundment of the vehicle, or the specific statutory basis for the suspension of Mr. Eskridge's 23 driver*s license. 24 25 12. BIRKLE told Lt. Fonsaco the following. She and Mr. Eskridge were in a romantic 26 relationship and lived together. BIRKLE was away in Sacramento when she learned that Mr. 27 28 'Plaintiff's counsel at bar was the attorney for the plaintiffin each of these cases. COMPLAINT Birtde v CHP, et at -3- Eskridge had been arrested and BIRKLE's vehicle had been impounded. BIRKLE did not know 2 BIRKLE's vehicle. Mr. Eskridge had never previously driven that Mr. Eskridge had borrowed 3 that vehicle or any other vehicle owned by BIRKLE while Eskridge had a suspended license. 4 Eskridge had not asked to drive BIRKLE's vehicle or given any indication that he intended to do 5 so. IfEskridge had asked, BIRKLE would have said, aNo," because BIRKLE knew Eskridge had 7 a suspended license. BIRKLE simply went on a bender —began drinking heavily —without warning, and took the vehicle without asking. 9 13. BIRKLE thus had no knowledge that Mr. Eskridge was operating BIRKLE's vehicle. 10 In a subsequent telephone conversation with BIRKLE's attorney, Lt. Fonsaco agreed that BIRKLE 11 did not know that Mr. Eskridge was operating BIRKLE's vehicle. 13 14. Lt. Fonsaco refused to release the vehicle from impound. He did not issue a written 14 statement of decision and instead orally explained his reasoning to BIRKLE and, later, BIRKLE's 15 counsel. 16 15. Lt. Fonsaco said there were 2 reasons for his refusal to release the vehicle from 17 impound. 19 16. First, under standard CHP policy the failure of a legal or registered owner to file a 20 stolen vehicle report when they claim their vehicle was operated without their knowledge or 21 permission, warrants the denial of the release of the vehicle from 30-day impound under Vehicle 22 Code section 14602.6. 23 17. In accordance with this policy, BIRKLE was advised by Lt. Fonsaco that she could 24 file a stolen vehicle report against Mr. Eskridge. BIRKLE declined, stating that although Mr. 26 Eskridge drove BIRKLE's vehicle without her knowledge and permission, she did not consider the vehicle stolen. When Mr, Eskridge told BIRKLE the vehicle had been impounded following 28 COMPLAINT. Birkle v. CHP, ei ak -4- his arrest for DUI, Mr. Eskridge said he had taken the vehicle for a few days and planned to return 2 it. In Ms. BIRKLE's opinion, this was not theft. She accordingly declined to file a stolen vehicle 3 report. 4 18. Second, under standard CHP policy the failure of the owner of a vehicle to take 5 precautions to prevent an unlicenced driver from gaining access to the vehicle, warrants denial of 7 the release of the vehicle from impound pursuant to Vehicle Code section 14602.6. 19. Lt. Fonsaco said that, while BIRKLE had not given Mr. Eskridge permission to 9 operate BIRKLE's vehicle or the keys to the vehicle, BIRKLE had not taken any specific 10 precautions to prevent Eskridge from gaining access to the vehicle —such as, for example, locking Il up her car keys. When she left for Sacramento BIRKLE left the keys to the vehicle ather 13 residence. Mr. Eskridge took advantage of BIRKLE's absence to gain access to the keys and 14 drive BIRKLE*s vehicle. 15 20. Lt. Fonsaco concluded, in essence, that BIRKLE was negligent in failing to take steps 16 to prevent Mr. Eskridge &om driving BIRKLE's vehicle.'7 21. Following the so-called impound hearing BIRKLE received in the mail a CHP-180 18 19 form. This was the only notice provided by CHP. The form stated that her vehicle had been 20 impounded and she had the right to hearing. The form does not advise of the available statutory 21 grounds for securing release from impound, the statutory basis for Mr. Eskridge's license 22 suspension, the evidence CHP relied on to support the impound or the basis for CHP' refusal to 23 24 25 'The 2 policies cited by Lt. Fonsaco have long been memorialized in a long-outdated and legally erroneous pamphlet handed out to drivers and other law enforcement agencies throughout the 27 state, and available on CHP's website. A copy of the pamphlet as printed from CHP's website is attached as Exhibit A. Numerous other law enforcement agencies refer to this pamphlet and/or quote 28 verbatim &om it, adopting these policies as their own. (See, e.g., Ex. B hereto.) COMPLAINT: Birkle v. CHP, et al release the vehicle following the so-called impound hearing.' 22. Following the so-called impound hearing BIRKLE's counsel directed a letter to Lt. 3 Fonsaco explaining in detail, with citations to controlling authority, why the decision was contrary 4 to law, BIRKLE's vehicle should be immediately released and CHP must change the standard 5 policies relied on by Lt. Fonsaco. In the event that CHP believed BIRKLE's counsel's factual or 7 legal analysis was incorrect in any respect, BIRKLE's counsel also requested a written statement of decision setting forth the factual and legal basis for CHP's refusal to release BIRKLE's vehicle, 9 and offered the controlling authority for this request. CHP did not reply and to date has provided 10 nothing in writing to explain the factual or legal basis for its decision. Plaintiffdoes not know if 11 CHP made any record of the events or so-called impound hearing. 13 23, BIRKLE's vehicle remained in impound for 16 days. For reasons unknown CHP issued a vehicle release form on the 16 day, rather than holding the vehicle in impound for 30 15 days as provided by Vehicle Code section 14602.6.'o secure release BIRKLE was required to 16 pay CHP a vehicle release fee pursuant to Vehicle Code sections 14602.6 and 22850.5 and pay the 17 towing company for the initial tow, a "lien-processing fee," and daily storage pursuant to Vehicle 19 Code sections 14602.6, 22851 and 22851.12 and Civil Code sections 3068.1 and 3073. 20 The total fees and costs were over $ 1,200.00. 21 22 'Virtually every law enforcement agency in the state follows CHP's lead and uses only a 23 CHP-180 form to provide notice of impound and the right to a hearing. 24 "Plaintiffs counsel suspects that the early release was Lt. Fonsaco's way of "splitting the baby," so to speak. Although Vehicle Code section 14602.6 requires a 30-day impound and no authority exists allowing an agency or administrative hearing officer to exercise a foun of quasi- judicial sentencing discretion by selecting a lesser number of days, countless agencies do so quite frequently. It is likelythat Lt. Fonsaco concluded that 30-days was too long under the circumstances, 27 so he authorized release atter only 16 days. While this reduction is appreciated, the vehicle should 28 have been released 15 days earlier, immediately following the so-called impound hearing. COMPLAINT Birklev CHP, er al -6- I 24. While BIRKI.E*s vehicle was in impound she was denied its use and enjoyment. FIRST CAUSE OF ACTION For Writ of Mandamus or Mandate Compelling CHP to Reverse its Decision 25, The decision of CHP refusing to release BIRKLE's vehicle from impound and requiring that the vehicle be held in impound for what was then stated as 30-days but proved to be 7 an additional 15 days beyond the January 26, 2010 so-called impound hearing, and requiring that she pay over $ 1,200 to secure the vehicle's release, was contrary to law, an abuse of discretion 9 and arbitrary and capricious. 10 26. Pursuant to Smith, supra, 97 Cal.App.4th 546, CHP was required to release the 11 vehicle immediately following the so-called impound hearing held January 26, 2010 because 13 BIRKLE indisputably established that she did not know her vehicle was being operated by a person with a suspended or revoked license. 15 27. The CHP requirements that BIRKLE ftle a stolen vehicle report and/or prove she took 16 precautions to prevent Mr. Eskridge from driving BIRKLE's vehicle are contrary to Smith and the 17 plain language and legislative intent of Vehicle Code section 14602.6. CHP has simply 19 implemented under a different name essentially the same policy found unlawful in Smith. 20 28. BIRKLE cannot provide a copy of the administrative record in accordance with Code 21 of Civil Procedure section 1094.5 because there is no written record of the evidence presented at 22 the so-called impound hearing or legal and factual basis for the decision of CHP, other than a 23 letter prepared by BIRKLE's counsel, a copy of which is attached as Exhibit C. As stated, CHP 24 did not respond to the letter.'6 27 'The absence of an adminisuative record and written statement of decision is the basis for a separate cause of action for violation of BIRKLE's state and federal constitutional rights to due 28 process of law. COMPLAINT. Birkle v CHP, et al -7- I 29. Pursuant to Code of Civil Procedure sections 1085 through 1096 BIRKLE is entitled 2 to the issuance of a writ of mandamus or mandate compelling CHP to reverse its decision, pay 3 restitution to BIRKLE in an amount equal to all release fees and costs incurred and paid for the 4 period after January 26, 2010, and pay damages for BIRKLE's loss of use and enjoyment of the 5 vehicle and violation of her constitutional and statutory rights. 7 30, As CHP and/or the State of California may argue that BIRKLE by failing to seek a writ of mandamus/mandate BIRKLE has failed to exhaust available remedies and may not assert 9 the constitutional claims set forth herein, BIRKLE alleges her entitlement to writ relief in addition 10 to the other claims set forth herein. In so alleging BIRKLE asserts she has no plain, speedy or 11 adequate remedy at law other than the issuance of a writ of mandamus/mandate compelling CHP 13 to reverse its erroneous decision and pay restitution and damages to BIRKLE in accordance with Code of Civil Procedure sections 1085-1096. 15 SECOND CAUSE OF ACTION 16 For Writ of Mandate and/or Declaratory and Injunctive Relief Compelling 17 CHP to Change its Policies and Practices to Comport with Law 18 19 31. There exists a current and present controversy between the parties for which a writ 20 of mandate pursuant to Code of Civil Procedure sections 526a and 1085 and/or declaratory and 21 injunctive relief pursuant to Code of Civil Procedure sections 526, 526a and/or 1060 is/are 22 appropriate. 23 32. As a matter of policy and practice the CHP provides notice of impoundment of a 24 vehicle under Vehicle Code section 14602.6 by mailing a written CHP-180 form. The form 26 includes a space for "statutory authority" for the impound, wherein CHP writes "Vehicle Code 14602.6" or "V.C. 14602.6." The back of the form states the registered or legal owner of the 28 COMPLAINT. Brrkle v CHP, et a/ -8- vehicle may contact the CHP within 10 days to contest the grounds for "storage." CHP does not 2 provide any additional notice. 3 33. Plaintiffcontends this policy and practice violates the state and federal due process 4 clauses because the CHP must —but with the exclusive use of the CHP 180 form currently does 5 not —provide notice of: 7 (I) The specific factual basis for the impound, including the specific statutory grounds for 8 the suspension of the driver's license, so the seizing agency and vehicle owner may determine 9 whether the specific suspension at issue is subject to Vehicle Code section 14602.6', 10 (2) Copies of all police reports and other documents on which CHP intends to rely to 12 13 'In this respect, subdivision (d)(1)(C) of Vehicle Code section 14602.6 provides: 14 An impounding agency shall release a vehicle to the registered owner or his or her 15 agent prior to the end of 30 days'mpoundment under any of the following circumstances: ...When the license of the driver was suspended or revoked for an 16 offense other than those included in Article 2 (commencing with Section 13200) of 17 Chapter 2 of Division 6 or Article 3 (commencing with Section 13350) of Chapter 2 of Division 6. (Italics added.) 18 Thus, suspension which do not fall under Vehicle Code sections 13200-13392 are exempt from impound under Vehicle Code section 14602.6. The excluded suspensions include Vehicle Code sections: 1 28 I 0.5 (negligent operation - excessive violation points), 128 14.6 (provisional 20 license suspensions), 12818 (failed reexamination), 12819 (failure to respond to reexamination 21 notice), 13801 (failure to submit to a DMVreexamination), 13953 (suspension or revocation based on reexamination), 13954(A) (in an accident within 5 years of a manslaughter conviction), 13954(D)(1) (in an accident with a .08 BAC or higher), 13954(D)(2) (in an accident caused by a prohibited act or neglect of duty), 16004(A) (failure to report an accident to DMV), 16030 (false evidence of insurance), 16070 (failure to provide proof of insurance at an accident scene), 16071 24 (failure to provide proof of insurance in another state, resulting in suspension by the other state), 16072(A) (failure to maintain insurance), 16073 (b) (commercial operator suspension), 16370 and 25 16370.5 (unsatisfied civiljudgment), 16381 (default on payments onajudgment), 16484(insurance coverage lapse), 22454.5 (3'onviction for passing a school bus), 23247(G)(I) and 23247(2) (operation of a vehicle without a court ordered DUI ignition interlock device), 34623 (motor carrier 27 suspension), and 42001.1 (crossing guard violation with 2 priors); as well as Family Code section 17520 (failure to pay child support). (See also Fam. Code $ 17520, subd. (w) [expressly exempting 28 such suspensions from Veh. Code )14602.6j.) COMPLAINT, Birldev CHP, ei al justify the impound, so that the vehicle owner may have notice of the evidence to be presented 2 against him/her; 3 (3) The specific statutory grounds for securing release from impound, as set forth in 4 5 subdivisions Q) and (d)(1) of Vehicle Code section 14602.6, which provide that a vehicle must be immediately released and is not subject to continued impoundment when the owner establishes 7 that the circumstances are "mitigating" within the meaning of subdivision (b) of section 14602.6 (see Smith, supra, 97 Cal.App.4th 546) or the following circumstances exist under subdivision 9 (d)(1): 10 (A) When the vehicle is astolen vehicle. 12 (B) When the vehicle is subject to bailment and is driven by an unlicensed employee of a business establishment, including a parking service or repair garage. 13 (C) When the license of the driver was suspended or revoked for an offense other 14 than included in Article 2 those (commencing with Section 13200) of Chapter 2 of 15 Division 6 or Article 3 (commencing with Section 13350) of Chapter 2 of Division 6. 16 (D) When the vehicle was seized under [section 14602.6] for an offense that does 17 not authorize the seizure of the vehicle. (E) When the driver reinstates his or her driver's license or acquires a driver' 19 license and proper insurance. (Italics added.) 20 (4) A copy of the CHP branch office's policies and/or guidelines for release based on 21 "mitigating circumstances" —as the circumstances a particular branch considers "mitigating" differ from and often are in direct conflict with those of other CHP branches and other law enforcement agencies; and 23 (5) A written statement of decision summarizing the factual and legal grounds for refusing 24 to release a vehicle following a hearing conducted pursuant to Vehicle Code sections 14602.6, 25 subdivision (b), and Vehicle Code section 22852. 26 34. Plaintifffurther contends the CHP's standard policy and practice of requiring a vehicle owner to file a stolen vehicle report and prove (s)he took precautions to prevent the 28 COMPLAINT. Birkle v CHP, el al -10- offending driver from having access to the vehicle, are contrary to Smith, supra, 97 CaLApp.4th 2 546 and the plain language and legislative intent of Vehicle Code section 14602.6. CHP has simply implemented under a different name essentially the same policy found unlawful in Smith. 35. Plaintiff further contends the CHP must cease dissemination of the pamphlet and corresponding information posted on CHP's website attached as Exhibit A, with respect to the 5 following information: 6 "The following excuses WILLnot HELP YOU when your vehicle is being driven 7 by an unlicensed driver and is stopped by law enforcement officers for any reason. " Yt was a minor infraction. IP7ty was my car impounded?'0 "Both 14602.6 and 14607.6 of the CVC give law enforcement officers the authority to impound your vehicle when it is being operated by an 'unlicensed driver'license not issued, suspended or revoked). Your car is being impounded because you have committed a misdemeanor, not an 12 infraction. By operating a motor vehicle without a valid driver's license you have 13 committed a serious offense. In addition to the citation, the vehicle you are operating willbe impounded and held for 30 days, or possibly forfeited. 14 15 " 7 don 't understand. II7ty 30 days 8 I absolutely need my car! '6 The Legislature intended to provide safer roads for California's motoring public by removing the vehicles driven by unlicensed, suspended, or revoked drivers for 30 17 days. A serious violation of the law calls for a serious response. The 30-day impound begins on the calendar day the car is towed and will be released at the conclusion of the 30th day during normal business hours. 19 "'My brother borrowed the car ' 20 or .. 21 22 "7 did not know his license was suspended'3 or . 24 Under Section 14604 CVC, the owner has a duty to assure the person driving their 25 vehicle possesses a valid license; however, ifyou allow or permit anyone, including: your wife, son or daughter, or friend or relative, to drive your vehicle 26 and that person does not have a valid driver's license, you will be responsible for towing and storage fees. You will not have access to the vehicle for 30 days. 27 "'She took the car without my permission 28 Birkte v CHP, et at 'OMPLAtNT: -11- " 'I am the owner ofthe car and I have a valid license.'o say someone has taken your car without your permission is not a valid excuse. Ask yourself: How did this happen? Have you allowed him /her to use your car before? Did you ask to see his / her license? Any vehicle impounded will be released to the registered owner aAer the 30 days. 7 Note: If, in fact,it is determined that your car was taken by an unlicensed driver without your knowledge or permission, a stolen vehicle report must be filed. The person charged with this crime will be arrested.' 36. Plaintiff contends this information is contrary to Smith, supra, 97 Cal.App.4th 546 10 and the plain language and legislative intent of Vehicle Code section 14602.6. Smith expressly 11 held that "Idid not know his license was suspended" is a "mitigating circumstance" under 13 subdivision (b) of Vehicle Code section 14602.6 which, iffound true following an impound 14 hearing, requires the immediate release of a vehicle from impound —proof of compliance with 15 Vehicle Code section 14604 is not required. The holding in Smith also includes as a "mitigating 16 circumstance" the excuse that "My brother borrowed the car" or "She took the car without my 17 permission" and "Iam the owner ofthe car and I have a valid license." The filing of a stolen 19 vehicle report is not required. And the statutory basis for suspension —i.e., "It was a minor 20 infraction" —does matter, as such may be a "mitigating circumstance" under subdivision (b) or 21 of Vehicle Code section 14602.6. (See fn. 6, ante.) mandate release under subdivision (d)(1)(C) 22 37. The information is also misleading because it suggests that no excuse of any kind will 23 be accepted and there are no exceptions to 30-day impound, when in fact subdivisions (b) and 24 (d)(1) of Vehicle Code section 14602.6 and Smith expressly provide for a host of exceptions and 26 27 'As noted, numerous other law enforcement agencies disseminate this information in pamphlet form or on their wesbites, for example: the police departments of the Cities of Gait, 2g Orange, Newman and Rohnert Park. (See Exhibit B hereto.) COMPLAtNT: Birkle v CHP, ei at -12- Samples v. Brown, supra, 146 Cal.App.4th 787 commands that the seizing law enforcement 2 agency must carefully scrutinize an offered excuse or justification to determine whether it is 3 "mitigating" under subdivision (b) of Vehicle Code sections 14602.6. 4 38. In addition to being distributed in pamphlet form and displayed on CHP's and other 5 law enforcement agencies'ebsites (see Exhibits A and B hereto), the information is conveyed by 7 CHP orally to those who inquire about the impoundment of their car. As a result, many vehicle owners do not even bother to request an impound hearing, because they have been told there is no 9 acceptable excuse and no exceptions. Those who do request an impound hearing are often 10 erroneously denied the early release of their vehicle based on the application of the CHP policy 11 described herein, as occurred with the plaintiffat bar. 13 39. Defendants dispute plaintiffs contentions and unless ordered, enjoined or mandated 14 by this court intend to and udll continue to maintain the status quo, enforce the policy described 15 herein, issue notice only through the use of a CHP-180 form, and otherwise act unlawfully as 16 described above. In so acting, defendants utilize paid employees such that declaratory and 17 injunctive relief and/or a writ of mandate is appropriate pursuant to Code of Civil Procedure 19 section 526a. 20 40. Wherefore, it is necessary for the court to issue a declaratory order determining the 21 duties and obligations of the defendants with respect to the notice which constitutionally they 22 must provide, and whether the policy and practice described above is lawful and in accordance 23 with Smith and Vehicle Code section 14602.6; and to issue an injunction or writ of mandate 24 directing CHP to give appropriate notice and comply with the law as described above. 27 28 COMPLAINT; Birkle v CHP, et al -13- 1 THIRD CAUSE OF ACTION 2 [For Declaratory & Injunctive Reliefj 3 41. There currently is a dispute between the parties for which declaratory and injunctive 4 relief is appropriate pursuant to Code of Civil Procedure sections 526, 526a and/or 1060. 6 42, Pursuant to Vehicle Code sections 14602.6, subdivision (a), and 22852, subdivision 7 (c), following the impoundment of a vehicle the CHP may and always does use its own officers to conduct impound hearings to determine whether a vehicle was lawfully impounded in the first 9 instance and/or should be released prior to the expiration of 30-days pursuant to subdivisions (b) 10 and (d)(1) of Vehicle Code section 14602.6. 11 43. Between 2000 and the filing of this action approximately 50% of all vehicles seized 12 13 and impounded by the CHP pursuant to Vehicle Code section 14602.6 were sold following the expiration of the 30-day period of impoundment, to satisfy the towing and storage costs related to 15 the impound, as permitted