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Barry S. Halajian v. D & B Towing et al

September 4, 2012


APPEAL from an order of the Superior Court of Fresno County. Debra J. Kazanjian, Judge. (Super. Ct. No. 11CECG00005)

The opinion of the court was delivered by: Franson, J.




Plaintiff Barry Halajian sued a towing company for (1) wrongfully withholding his personal property, a 1998 Dodge light truck, for 38 days and (2) requiring him to pay $1,385 before releasing the truck. The towing company filed a demurrer, arguing that the pickup truck had been lawfully impounded by the sheriff's department and lawfully towed and stored. The towing company also argued that, under California statute, plaintiff had no right to immediate possession of the truck until he paid the fees required for its release.

The trial court sustained the demurrer without leave to amend based on its conclusion that the towing company's actions were legal and, therefore, plaintiff was unable to state a claim for recovery. Plaintiff appealed, arguing that the seizure of his light truck violated his Fourth Amendment right to be free from unreasonable seizures, his constitutional right to travel and his right to due process. He also argued that the California Vehicle Code's licensing and registration requirements were misapplied to him and his noncommercial use of the light truck. Plaintiff contends the towing company was responsible for knowing the law and, thus, should have recognized these violations of his rights and the resulting illegality of its possession of his truck.

The primary question on appeal is whether the towing company's possession of plaintiff's truck was wrongful. In the published portions of this opinion, we conclude that the sheriff's department's impounding of the truck did not violate plaintiff's right to travel, was not an unreasonable seizure, and did not misapply the Vehicle Code to his noncommercial use of the truck. In an unpublished portion, we conclude that plaintiff's due process rights were not violated. Thus, the towing company's possession of the truck did not continue a wrongful seizure or confiscation of the truck. In addition, the towing company stored and released the truck in accordance with applicable law. Consequently, the towing company committed no wrong and cannot be held liable for damages.

Therefore, we affirm the order of dismissal.


The Parties

Plaintiff is an electrical contractor who specializes in industrial construction. He describes himself as a "free inhabitant of the California Republic" as indicated in the 1849 Constitution of the California Republic, section 4 of Article IV of the Constitution of the United States, and Article IV of the Articles of Confederation. At the time of the traffic stop that led to this litigation, plaintiff did not have a driver's license and his light truck was not registered.

D & B Towing and its owner, Bob Barnes, were named as defendants. D & B Plumbing, Inc., a California corporation that does business as D & B Towing, appeared in this lawsuit and asserted it was incorrectly sued as D & B Towing. Robert L. Barnes also appeared, stating he was incorrectly sued as Bob Barnes. The defendant corporation and Barnes are referred to as "Towing Company" in this opinion.

The Facts

Early in the morning on November 30, 2010, Sergeant Terrence of the Fresno County Sheriff's Department (Department) stopped plaintiff while he was traveling to a job site in his light truck. Plaintiff told the sergeant that he had returned the vehicle registration and his driver's license to the Department of Motor Vehicles (DMV) because plaintiff realized that all licensing is for commercial use of the road. Plaintiff alleges he was not engaged in commercial use of the roadway and was not transporting persons or property for hire. Instead, plaintiff contends he was exercising an inalienable right--the right of travel.

Plaintiff alleges that he was charged with violating California Vehicle Code sections "148(a)(1), 14601.1(a), 4462.5 and 4000(a)(1)"*fn2 and the Department relied on these sections to confiscate and impound his truck. More specifically, plaintiff asserts that his truck "was towed for the simple fact that [he] did not have a driver's license."

Between 4:20 and 5:00 a.m. on November 30, 2010, the sergeant contacted Towing Company to remove plaintiff's truck, even though it was parked safely and properly in a convenience store parking lot.*fn3 When the truck was towed, it was not obstructing or impeding the flow of traffic and had not been involved in an accident. Plaintiff repeatedly objected to the actions of the Department and Towing Company, but his objections were ignored. Plaintiff was unable to get the name of the Towing Company's driver because he was handcuffed in the Department's vehicle at the time.

In December 2010, plaintiff sent Towing Company two letters by certified mail demanding the return of his truck and setting forth his position as to why the taking of his truck was unlawful. Towing Company did not respond to the letters.

The Pleadings

On January 3, 2011, plaintiff filed a pleading captioned "Petition for Writ of Replevin" alleging that Towing Company was wrongfully withholding his truck. The pleading sought the return of the truck.

On January 4, 2011, plaintiff sent Towing Company another letter demanding the return of his truck and offering to dismiss the lawsuit if his truck was returned in the same condition as when it was unlawfully taken and Towing Company paid him $395 for filing fees and time spent.

On January 6, 2011, plaintiff went to Towing Company's place of business, paid the $1,385 in towing and storage fees, and regained possession of the truck. Plaintiff paid the fees to prevent the truck from being sold at a lien sale the next day.

In February 2011, plaintiff filed an amendment to his petition for writ of replevin. The amendment appears to have been drafted to account for the fact that plaintiff had regained possession of the truck. In the amendment, plaintiff alleged Towing Company had wrongfully and unlawfully held his truck against his will for 38 days and charged a storage fee for it. Plaintiff also alleged he was entitled to damages in the amount of $23,705.90.

Plaintiff attached six exhibits to the amendment: (1) the three letters he sent to Towing Company, (2) a DMV registration card for the truck,*fn4 (3) an invoice from him to Towing Company that showed how plaintiff calculated his damages, and (4) the Towing Company's receipt for the $1,385 in charges that plaintiff paid.

The Demurrer

Later in February 2011, Towing Company filed a general and special demurrer against plaintiff's petition and amendment. In support of its demurrer, Towing Company requested judicial notice of copies of (a) the "Fresno County Sheriff's Department Vehicle Report" dated November 30, 2010, regarding the impounding and storage of plaintiff's 1998 Dodge truck and (b) the Department's impound release notification dated January 6, 2011.

The hearing on the demurrer was held on March 21, 2011. In early March, plaintiff filed an opposition to the demurrer and a request for judicial notice. Three days before the hearing, plaintiff also filed a pleading titled "Second Amended Complaint for Deprivation of Rights Under Color of Authority and Replevin of Property or in the Alternative Detinue and an Order to Cease and Desist." (Some capitalization omitted.)*fn5

Plaintiff's proposed second amended complaint asserted that he was not a "driver" of a "motor vehicle" and, therefore, his activity was outside the scope of the California Vehicle Code. (Emphasis omitted.) In other words, he was not bound by any provisions of law requiring licensing and payment of taxes to use the highways. In plaintiff's view, members of the public "have an absolute right to use of the highways and are not subject to licensing and taxation" so long as they do not transport persons or property for hire.

Hearing on Demurrer

On the day of the March 21 hearing, the Department delivered documents to the court that responded to a subpoena duces tecum sent by plaintiff. In the subpoena, plaintiff requested (1) the towing agreement between Towing Company and the Department that was in effect on November 30, 2010, (2) documents showing the criteria for impounding cars and light trucks, and (3) the Department's policy on towing. The parties agreed at the hearing that the trial court could look at the documents in considering the demurrer.*fn6

During the hearing, counsel for Towing Company argued that plaintiff could not state a claim because the law did not allow Towing Company to release the truck until the fines were paid and it was presented with a vehicle release form issued by the Department. Counsel further argued that the Department was the entity that actually impounded the truck and Towing Company simply acted as a storage locker for the Department and released the truck as soon as instructed to do so by the Department.

Plaintiff, representing himself at the hearing, argued that impounding his truck flew in the face of Miranda v. City of Cornelius (9th Cir. 2005) 429 F.3d 858 (City of Cornelius), which held that a vehicle could not be impounded or towed unless it was impeding traffic, had been in an accident, or otherwise met the requirements of the community caretaking doctrine. In plaintiff's view, none of the conditions of the community caretaking doctrine applied because the truck was parked safely in a convenience store parking lot. In addition, plaintiff argued Towing Company should know the law and the limits of what it could and could not do under the law and, as a result, should not have followed the unlawful directions of the Department. Further, plaintiff asserted that ignorance of the law does not excuse Towing Company from responsibility for its wrongful actions.

Order Sustaining Demurrer

Following argument, the trial court took the matter under submission. On June 2, 2011, the trial court filed an order (1) sustaining, without leave to amend, Towing Company's general demurrer to the petition and amendment and (2) striking, on its own motion, the second amended complaint plaintiff filed on March 18, 2011. The court determined that the Department had the authority under Vehicle Code section 22651, subdivision (h)(1) to have the truck removed upon plaintiff's arrest and custody. The court also determined that plaintiff did not have a right to immediate possession of the truck during the impound period because he had not met the conditions for obtaining the release of a vehicle stated in Vehicle Code section 22651, subdivision (i)(4)(A). (See fn. 14, post.)

On June 15, 2011, the trial court signed and filed an order stating "that the above-entitled action as to [Towing Company] be, and hereby is, dismissed, with prejudice."

In July 2011, Halajian filed a timely notice of appeal and an amended notice of appeal.



Plaintiff represented himself in the trial court proceedings and continues to do so in this appeal. His opening brief asserts that he is not an attorney "and therefore his pleadings must be read and construed liberally." He also argues that this court has a responsibility and duty to protect ...

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