Darulis v. City of San Diego

Filed 11/29/05 Darulis v. City of San Diego CA4/12

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MARK DARULIS, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent.

D046171 (Super. Ct. No. GIC840022)

APPEAL from an order of the Superior Court of San Diego County, S. Charles Wickersham, Judge. Reversed and remanded.

Vehicle Code section 22651, subdivision (k), authorizes a police officer to "remove" (i.e., tow) a vehicle left "upon a highway" for over 72 consecutive hours.^[1] In this appeal, Mark Darulis contends that this statute did not authorize the towing of his van from a public parking lot, and he contests the trial court's decision to the contrary. As discussed below, we agree with Darulis. The trial court's order relies on an erroneous interpretation of section 22651, subdivision (k), and consequently, we reverse and remand.

FACTS

On November 12, 2004, the San Diego police towed a van out of a public parking lot at 3000 Mission Boulevard after observing that the van was parked in the lot for over 72 consecutive hours. Darulis subsequently contested the towing of the van in a "poststorage hearing" before a city official as authorized by the Vehicle Code. (§ 22852, subd. (a).)^[2] At the hearing, Darulis submitted photographs of the parking lot. One of the photographs shows the sign in the lot that states: "Overnight Parking Allowed." The photograph also shows that the parking facility is separate from any adjacent roadway, a fact that the City Attorney does not dispute.

The poststorage hearing officer ruled against Darulis, determining that section 22651, subdivision (k), authorized the towing of the vehicle. Therefore, the vehicle's owner (rather than the City) was required to pay the costs of towing. (§ 22852, subd. (e) ["The agency employing the person who directed the storage shall be responsible for the costs incurred for towing and storage if it is determined in the poststorage hearing that reasonable grounds for the storage are not established"].)

Darulis sought review in the superior court of the hearing officer's determination through a petition for a writ of mandate pursuant to Code of Civil Procedure section 1094.5. In his petition, Darulis claimed that the Vehicle Code provision under which his van was towed applies solely to vehicles parked on a "highway" and therefore did not authorize the towing of his vehicle from the parking lot.

In a written order, the trial court denied the writ. The court ruled that "[e]ven assuming that the writ was procedurally proper, the court finds that the definition of 'highway' is broad enough to encompass a publicly owned and maintained parking lot. Vehicle Code § 360. Therefore, respondent had the authority to tow petitioner's van for a violation of section 22651[, subdivision ](k)."

DISCUSSION

Darulis's appeal consists of a relatively straightforward question of statutory interpretation — whether a parking lot is a "highway" as that term is defined in section 360 — couched in a complex web of procedure. Our analysis is in two parts. First, we review the statutory framework that authorized Darulis's claim in the lower court and determine the proper standard of review of the trial court's order. Second, we apply that standard of review and resolve the question whether in denying Darulis's claim the trial court properly interpreted section 22651, subdivision (k).^[3]

I

The Standard of Review of a Trial Court's Interpretation of a Statute in a

Writ of Mandate Proceeding Is De Novo

Under the Code of Civil Procedure, upon a properly filed petition for a writ of mandate, a court sitting without a jury is empowered to "inquir[e] into the validity of any [discretionary] final administrative order or decision" made after an evidentiary hearing. (Code Civ. Proc., § 1094.5, subd. (a); see also Code Civ. Proc., § 1094.6, subd. (a) [authorizing "[j]udicial review of any decision of a local agency . . . or of any commission, board, officer or agent thereof . . . pursuant to [Code Civ. Proc.] section 1094.5"].)^[4] In such a case, the scope of the court's review is limited to determining, inter alia, "whether there was a fair trial; and whether there was any prejudicial abuse of discretion." (Code Civ. Proc., § 1094.5, subd. (b).) By statute, an abuse of discretion is established if an administrative agency or officer "has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Ibid.)

On appeal of the trial court's determination in a writ of mandate proceeding, this court's review would normally be limited to the sole question of whether the trial court's findings were supported by substantial evidence. (Smith v. Santa Rosa Police Dept. (2002) 97 Cal.App.4th 546, 553-554 [reviewing denial of writ of mandate of poststorage hearing].) Here, however, where "the determinative question . . . is one of statutory construction," we are presented with a "question of law" and proceed under a de novo standard, as we would in reviewing the trial court's interpretation of the meaning of a statute in any other context. (Ibid.; Weinberg v. Cedars-Sinai Medical Center (2004) 119 Cal.App.4th 1098, 1107 [question of "whether the Board applied correct standards in making its decision" is "a question of law that we review de novo"]; Usher v. County of Monterey (1998) 65 Cal.App.4th 210, 216 [in review of mandamus proceeding, "questions of statutory interpretation are questions of law warranting independent review"].)^[5]

II

"Highway" as Defined in the Vehicle Code Does Not Include a

Parking Lot That Is Separate from a Street

Section 22651, subdivision (k), authorizes a police officer to remove a vehicle that is "parked or left standing upon a highway for seventy-two or more consecutive hours in violation of a local ordinance authorizing removal." (Italics added.)^[6] The disputed term "highway" is defined in section 360 as "a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel."

In the instant case, the trial court declined to disturb the determination of the hearing officer that section 22651, subdivision (k), authorized the towing of Darulis's vehicle, citing as the sole basis for its decision that the statutory "definition of 'highway' [contained in section 360] is broad enough to encompass a publicly owned and maintained parking lot," and therefore, the City "had the authority to tow petitioner's van for a violation of section 22651[, subdivision ](k)."^[7]

The trial court's statement of law is erroneous, and is directly contrary to a previous holding of this Court of which the trial court appears to have been unaware. (People v. Lopez (1987) 197 Cal.App.3d 93, 99 (Lopez).)^[8] In Lopez, we held that a provision of the Vehicle Code prohibiting possession of an open alcoholic container in a motor vehicle "upon a highway" (§ 23223) did not apply to prohibit the possession of such a beverage in a public parking lot. (Lopez, at p. 99.) While we noted in Lopez that the term "highway" could, at its limits, be interpreted to include "parking places adjacent to a roadway," such as a "road's shoulder," we held that it did not apply to a parking facility that was not adjacent to a road, where the facility was not "intended primarily for travel but instead was an area primarily intended for parking." (Ibid.) In language that applies with equal force to the facts here, we stated that "[a] parking lot separated from the street is manifestly different in nature from a road's shoulder," and "[t]he fact a parking lot may include some areas available for driving does not make the parking lot a highway." (Ibid.) As we also pointed out in Lopez, the Vehicle Code contains numerous provisions that "distinguish between highways and parking lots; distinctions which would be unnecessary surplusage if 'highway' included 'parking lot.'" (Lopez, at p. 99.)

The City Attorney argues that section 21113, subdivision (c), in concert with a cited municipal ordinance broadens the definition of highway here. Section 21113, subdivision (c), provides that sections of the Vehicle Code "relating to traffic upon the highways shall be applicable to the traffic upon . . . parking facilities." As we stated in Lopez, however, section 21113, subdivision (c) applies only to "traffic" in a parking facility, and so "does not apply where, as here, the public parking lot is being used only for parking." (Lopez, supra, 197 Cal.App.3d at p. 101.)

The City Attorney attempts to distinguish Lopez by arguing that the purpose of the Vehicle Code section at issue here "is to prohibit long term parking," whereas the statute at issue in Lopez, section 23223, was concerned with driving while drinking alcohol. (See Scalf v. Eicher (1935) 11 Cal.App.2d 44, 50 ["The word 'highway' as used in various statutes and ordinances may have [different] meaning[s]"].) We find this asserted distinction unconvincing. Both this case and the Lopez opinion construe the meaning of the same statutory provision — section 360, which provides a uniform definition of "highway" — to be applied throughout the Vehicle Code. We see no justification or logic for construing the legislature's uniform definition of the term "highway" to have different meanings in the different Vehicle Code sections to which it applies. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [where statutory scheme is unambiguous, we "presume the lawmakers meant what they said" without "resort to extrinsic sources, including the ostensible objects to be achieved" by the statute].)

As the City Attorney cannot distinguish Lopez, and fails to identify any flaw in the thorough statutory analysis contained in that opinion, we see no reason not to apply its analysis to the case at bar. The application is straightforward. The parties do not dispute that the parking lot at issue, like the "parking lot of the public park" at issue in Lopez, is "separated from the street" and was not "intended primarily for travel but instead was an area primarily intended for parking." (Lopez, supra, 197 Cal.App.3d at p. 99.) Following our decision in Lopez, we conclude the parking lot at issue is not a "highway" under the Vehicle Code. Therefore, section 22651, subdivision (k), does not authorize the towing of Darulis's vehicle. (Lopez, at p. 99.) The trial court erred as a matter of law in determining otherwise. Consequently, we reverse the trial court's order denying the writ and remand for further proceedings consistent with this opinion.^[9]

DISPOSITION

Reversed and remanded.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

^[1] All further statutory references are to the Vehicle Code unless otherwise specified.

^[2] Under section 22852, subdivision (a): "Whenever an authorized member of a public agency directs the storage of a vehicle, as permitted by this chapter, or upon the storage of a vehicle as permitted under this section (except as provided in subdivision (f) or (g)), the agency or person directing the storage shall provide the vehicle's registered and legal owners of record, or their agents, with the opportunity for a poststorage hearing to determine the validity of the storage." Hearings related to the towing of private property have constitutional implications. (See generally David v. City of Los Angeles (9th Cir. 2002) 307 F.3d 1143, 1145, reversed in City of Los Angeles v. David (2003) 538 U.S. 715.)

^[3] At the outset, we reject the City Attorney's assertion that we should deny Darulis's appeal because he assertedly lacked standing to petition for a writ of mandate in the first instance. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 362 [writ of mandate petitioner must have "'some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large'"].) The record before the trial court, which includes a receipt for the vehicle issued to Darulis by the Department of Motor Vehicles, indicates that Darulis was the owner of the vehicle, which is a sufficient basis for standing in this context.

^[4] The City Attorney does not dispute that the poststorage hearing at issue in this case is subject to a writ of mandate under Code of Civil Procedure section 1094.5.

^[5] Thus, the City Attorney is incorrect to the extent he suggests we review the trial court's interpretation of the definition of the statutory term "highway" under an abuse of discretion standard.

^[6] Darulis does not contest that section 22651, subdivision (k), would authorize the towing of his vehicle if the definition of a highway in that statute encompasses a parking lot. According to the City Attorney, the applicable local ordinance triggering the statute is San Diego Municipal Code, section 86.09.06, which states that "[n]o person shall park . . . any vehicle upon any street or highway in excess of seventy-two (72) consecutive hours."

^[7] The City Attorney now references section 21113, subdivision (a), as an additional basis for towing the vehicle, but that provision was not relied on by the police officer who removed the van, the poststorage hearing officer, or the trial court — and with good reason, as it does not appear to apply here. Section 21113 by its terms, applies only if Darulis's van was parked in violation of some applicable city regulation of the lot. (§ 21113, subd. (a) [prohibiting parking on public property "except with the permission of, and upon and subject to any condition or regulation which may be imposed by the legislative body of the municipality [or other governing body]"].) The City Attorney does not identify any such regulation, and itself refers to the parking lot as "a publicly maintained parking lot which gives the public access to Mission Beach and the San Diego Bay." The only record evidence on this subject is the photograph of the lot submitted by Darulis which shows a sign at the lot entrance that expressly states "Overnight Parking Allowed."

^[8] It does not appear that any party cited the Lopez case to the trial court.

^[9] The City Attorney also claims that because Darulis "now requests" that we require the City to "pay damages he incurred to retrieve the van," Darulis "has created a separate cause of action" that makes appeal of the trial court's judgment improper because "other issues, besides the writ, are pending." (See Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536, 540 ["absent unusual circumstances, the denial of a petition for writ of mandate is not appealable if other causes of action remain pending between the parties"].) The City Attorney is apparently referencing Darulis's concluding statement that he seeks an "Order directing the trial court to issue the Writ of Mandate directing the respondent to pay for the tow and storage of appellants' [sic] vehicle which is mandatory under [section] 22852[, subdivision ](e)." The City Attorney's argument misunderstands Darulis's request. Darulis merely seeks reversal of the poststorage hearing decision. If granted, this relief automatically shifts the costs of towing from him to the city agency responsible for the towing. (§ 22852, subd. (e).) Thus, Darulis's request is consistent with his petition for writ of mandate, and does not constitute a separate cause of action for monetary damages.