Vol. 20 No. 13- Vehicle Code Section 22658 – Tillison v. San Diego

June 30, 2005

On May 9, 2005, the United States Court of Appeal for the Ninth Circuit issued an opinion inTillison v. City of San Diego, 406 F. 3d 1126 (2005), in which it upheld the validity of California Vehicle Code section 22658(1). John Tillison, dba West Coast Towing, challenged the Code section that requires a towing company to obtain written authorization from the owner or lessee of private property, or his or her agent, prior to removing a vehicle from private property, except if the vehicle is unlawfully parked within 15 feet of a fire lane or interferes with any entrance to or exit from the property. The person authorizing the removal must also be present at the time of removal.

At the lower court level, the district court, relying on Tocher v. City of Santa Ana, 219 F.3d 1040 (9th Cir. 2000), held that section 22658(l)(1) is preempted by the Federal Aviation Administration Authorization Act (FAAAA) of 1994, 49 U.S.C. §§ 14501-14505, and enjoined enforcement of the section. FAAAA Section 14501(c)(2)(A) provides an exception to federal preemption for those laws enacted pursuant to “the safety regulatory authority of a State with respect to motor vehicles.” Based on Tocher, the district court determined that section 22658(l) does not fall under this exception because the provision is aimed at consumer protection rather than safety concerns. The City of San Diego appealed the district court’s decision.

In its opinion, the Court of Appeal noted that in response to the district court’s decision, the California Legislature in August of 2003 amended the statute to clarify that it is safety related, by adding subsection (m)(2):

It is the intent of the Legislature in the adoption of subdivision (l) to further the safety of the general public by ensuring that a private property owner or lessee has provided his or her authorization for the removal of a vehicle from his or her property, thereby promoting the safety of those persons involved in ordering the removal of the vehicle as well as those persons removing, towing, and storing the vehicle.

Id. at 1129-1130.

The Court of Appeal also considered one of its earlier decisions supporting the provision as safety related. There are decisions of other circuits, as well, which addressed similar enactments and concluded that these enactments were sufficiently safety-related to come within the exception to federal preemption. For these reasons, the Court of Appeal concluded that Vehicle Code section 22658(1) is not federally preempted. Id. at 1130-1131.


The Tillison decision is not yet final. A decision of the Court of Appeal is final only after the issuance of a mandate. “The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.” FRAP 41(d)(1). On June 13, 2005, Tillison filed a petition for rehearing and, therefore, mandate will not issue until the disposition of the petition.

Because the decision of the Court of Appeal is not final, the district court’s order, enjoining the City of San Diego from enforcing section 22658, is still in place. Therefore, San Diego authorities may not enforce the section. However, other jurisdictions have a choice: because section 22658 is a valid statute, and the Legislature has clarified that it is safety-related, law enforcement agencies, other than San Diego , may choose to enforce the section pending final decision inTillison. They may also choose to not enforce the section and wait until the final outcome of theTillison decision.

As always, we urge law enforcement management to confer with legal counsel before undertaking action which requires legal interpretation. If you wish to discuss this matter in greater detail, please feel free to contact Martin J. Mayer ( mjm@jones-mayer.com ) or Ivy M. Tsai (imt@jones-mayer.com ). You can also call either at 714-446-1400.