City of LA v. 200 Jeep Cherokee

Filed 9/25/06 City of Los Angeles v. 2000 Jeep Cherokee CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CITY OF LOS ANGELES,
Plaintiff and Appellant,
v.
2000 JEEP CHEROKEE etc.,
Defendant;
RICHARD REINSDORF,
Defendant and Respondent.
B185673 c/w B188182
(Los Angeles County
Super. Ct. No. BS097278)
APPEAL from a judgment and an order of the Superior Court of
Los Angeles County, Victor Greenberg, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Reversed and remanded with directions.
Rockard J. Delgadillo, City Attorney, Asha Greenberg, Assistant City
Attorney, Jonathan S. Galatzan and Maria G. Aguillon, Deputy City Attorneys,
for Plaintiff and Appellant.
Mark T. Clausen for Defendant and Respondent.
__________________________________

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2.
In Horton v. City of Oakland (2000) 82 Cal.App.4th 580, Division Three of
the First District rejected a preemption challenge to a City of Oakland
ordinance authorizing the civil forfeiture of vehicles involved in soliciting
prostitution or acquiring drugs. In O’Connell v. City of Stockton (2005) 128
Cal.App.4th 831, the Third District disagreed with Horton, finding that a similar
City of Stockton ordinance was preempted by state law. On September 7, 2005,
our Supreme Court granted review in O’Connell (S135160) and the case is still
pending.
Meanwhile, in April 2005, Richard Reinsdorf was arrested for soliciting
prostitution (Pen. Code, § 647, subd. (b)), and his Jeep was seized. In May, he
was notified that the City of Los Angeles had initiated forfeiture proceedings
under section 41.70 of the Los Angeles Municipal Code, which authorizes the
seizure and forfeiture of vehicles used to solicit prostitution. 1 Reinsdorf
challenged the City’s action, claiming the ordinance was preempted by state
law. The trial court agreed, gave judgment to Reinsdorf against the City, and
later granted Reinsdorf’s motion for attorney’s fees in the amount of $49,735.90.
The City appeals, contending Horton is correct. We agree, and reverse
both the judgment and the attorney fee award.
DISCUSSION
A.
To determine whether an ordinance is preempted by state law, we must
determine whether there is a genuine conflict between a state statute and the
1 All references to section 41.70 are to that section of the Los Angeles Municipal Code.

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3.
ordinance, which there is if the ordinance duplicates, contradicts, or enters an
area fully occupied by general law, either expressly or by legislative implication.
An ordinance enters an area that is “fully occupied” by general law when the
Legislature has expressly manifested its intent to fully occupy the area, or when it
has impliedly done so as shown by these indicia of intent: (1) the subject matter
has been so fully and completely covered by general law as to clearly indicate
that it has become exclusively a matter of state concern; (2) the subject matter
has been partially covered by general law couched in such terms as to indicate
clearly that a paramount state concern will not tolerate further or additional
local action; or (3) the subject matter has been partially covered by general law,
and the subject is of such a nature that the adverse effect of a local ordinance
on the transient citizens of the state outweighs the possible benefit to the locality.
(Horton v. City of Oakland, supra, 82 Cal.App.4th at p. 585.)
B.
Vehicle Code section 22659.5, subdivision (a), authorizes any city to
“adopt an ordinance establishing a five-year pilot program that implements
procedures for declaring any motor vehicle a public nuisance when the vehicle
is used [to pimp, pander or solicit prostitution]” and the defendant is convicted
of one of the specified offenses (or pleads guilty to a lesser included offense).2
In Horton, the claim was that section 22659.5 provides the exclusive
authorization for local ordinances designed to abate as a nuisance vehicles
used to solicit prostitution, and that the Oakland ordinance conflicted with the
2 All references to section 22659.5 are to that section of the Vehicle Code. Although the statute
as originally enacted applied only to certain designated cities and counties and included a
sunset clause, it was amended in 1998 to remove its temporal and geographical restrictions.
(Horton v. City of Oakland, supra, 82 Cal.App.4th at p. 588, fn. 11.)

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4.
statute because it authorized a forfeiture rather than impoundment and did not
require a conviction or plea by the defendant. (Horton v. City of Oakland,
supra, 82 Cal.App.4th at p. 589.)
Because section 22659.5 contains no explicit statement of the Legislature’s
intent to occupy the area, the Horton court framed the issue as “whether the
passage of legislation authorizing local communities to enact a pilot program
constitutes a clear indication of intent to occupy the area sufficient to support a
finding of implied preemption.” (Horton v. City of Oakland, supra, 82
Cal.App.4th at p. 589.) Horton holds that it does not:
“We note first that the Legislature has not taken definitive action to pass
encompassing legislation that would be binding statewide. In fact, the Oakland
ordinance was in effect and this lawsuit was pending when section 22659.5 was
amended in 1998 to remove its geographical restrictions. The Legislature did not
take the opportunity to amend the law to prohibit local nuisance abatement
through vehicle forfeiture. [Citation.] Thus in enacting section 22659.5, the
Legislature has left it to local communities to establish a pilot program pursuant
to that statute if they so choose. Section 22659.5 also provides certain
specifications for any pilot program adopted pursuant to that statute. However,
it does not preclude local governments from enacting other provisions if they
decide not to adopt the proffered pilot program.
“Because the Oakland ordinance was not enacted pursuant to section
22659.5, it is not constrained by the procedural requirements of that statute. We
also note that the history of section 22659.5 indicates legislative concern with
traffic and parking problems resulting from drivers distracted by the search for

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5.
prostitutes, whereas the Oakland ordinance is specifically directed more
broadly at nuisance and blight abatement, traditionally an area of local
regulations. [Citations.]” (Horton v. City of Oakland, supra, 82 Cal.App.4th at pp.
589-590, fns. omitted.)
Section 41.70, the City of Los Angeles’s ordinance, is distinguishable from
the Oakland ordinance only because ours addresses only prostitution, not drugs.
With regard to prostitution, the ordinances are virtually identical.3
C.
Our conclusion that Reinsdorf was not entitled to judgment on preemption
grounds means that both the judgment in his favor and the award of attorney’s
fees he obtained as the prevailing party must be reversed.4
We deny Reinsdorf’s requests for judicial notice and for attorney’s fees on
appeal, and summarily reject his suggestion that this appeal is moot.
3 Section 41.70 was adopted after Horton approved the Oakland ordinance. In 2002, the
Los Angeles City Council found: “The City of Oakland is one of many municipalities in
California . . . that have enacted vehicular forfeiture statutes using local control. These laws
have been shown to decrease nuisance prostitution activity when applied in areas of blatant
streetwalking prostitution. The California Supreme Court [presumably by denying review in
Horton] has ruled [on] the constitutionality of this type of approach, choosing to uphold the
[Oakland] ordinance . . . .” (Horton v. City of Oakland, supra, 82 Cal.App.4th 580, review denied
Oct. 18, 2000.) Section 41.70 became effective in 2003.
4 If our opinion appears conclusory, it is because we assume Reinsdorf will petition for review in
this case, and that his petition will be granted and held pending the Supreme Court’s decision in
O’Connell.

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6.
DISPOSITION
The judgment and attorney fee order are reversed, and the cause is
remanded to the trial court with directions to address the merits of all issues. The
parties are to pay their own costs of this appeal.
NOT TO BE PUBLISHED.
VOGEL, J.
We concur:
MALLANO, Acting P.J.
ROTHSCHILD, J.

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