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Brenda Grantland, Esq.
Law Office of Brenda Grantland
20 Sunnyside Suite A 
PMB 204
Mill Valley, CA 94941
(415) 380-9108

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA

CITY OF OAKLAND,				|	Case # 803932-7
							|	
			Plaintiff,			|	
							|	

v.							|	SUPPLEMENTAL 
							|	MEMORANDUM ON THE
1989 Ford Ranger, California License Plate No.	|	ISSUE OF CLAIMANT’S
3W31432, VIN 1FTCR11T4KUB96411,		|	LIABILITY FOR STORAGE
							|	AND TOWING COSTS
			Respondent,			|
							|	Department 18
ERIC KINNEY,					|	Judge Carl Morris
							|	
			Claimant/Real Party 		|
			in Interest.			|	
__________________________________________|

	Claimant, Eric Kinney, through undersigned counsel, submits this supplemental memorandum on the issue of claimant’s liability – or, more accurately, the lack thereof – for the City of Oakland’s storage fees and towing costs associated with the detention of his vehicle in this forfeiture case.
Statement of Facts
	The City of Oakland Deputy City Attorney Pelayo Llamas, in his letter dated April 5, 2000, told Kinney’s counsel that should Kinney elect to forfeit $2,500 and recover his vehicle -- instead of allowing it to be sold at forfeiture auction and have the proceeds in excess of $2,500  distributed to him -- Kinney would have to pay the City $6,006 instead of $2,500, because he would be liable for the City’s storage and towing costs.  
	Mr. Llamas now contends in his April 21 letter that $3,766 in storage and towing costs  “should be imposed against Kinney.” This would bring the total amount required to redeem the vehicle to $6266 – more than the blue book value of the vehicle.  Mr. Llamas give no clue as to the legal reasoning he used to arrive at his conclusion that Kinney would be liable for the City’s storage costs.  

1.	Storage and towing are not recoverable costs under the California Code of Civil Procedure

	Even the most rudimentary research into this issue would have uncovered the fact that there is no legal support for the City’s claim for storage fees.  
	If this claim could be thought of as part of a request for “costs” for the prevailing party under CCP §1032, the simple answer is that, even if the City could be awarded “costs” under that statute, allowable costs do not include storage and towing fees in a forfeiture case.  CCP §1033.5 lists all of the items statutorily allowable as costs, and “storage and towing fees in a forfeiture case” are not included in that list.   
	California case law is equally clear: the right to recover costs is purely statutory, and in the absence of a statute authorizing the assessment of one party’s costs of a particular type against another party, such costs cannot be recovered.  See generally the cases cited in the annotation to CCP§ 1032 at ¶6, including Agnew v. Cronin (1959, 2^nd Dist) 167 Cal.App.2d 154, 334 P.2d 256 and  Danley v. Merced Irrigation Dist. (1925) 76 Cal. App. 52, 243 P. 676.  
	In fact the California courts have considered this very question.  In People v. One 1950 Ford Sedan (1956, 1^st Dist.) 140 Cal.App.2d 647, 295 P.2d 486 the court held that disbursements made for storage of a vehicle seized for forfeiture for transporting contraband could not be taxed against the claimant as costs.  That case was decided on an earlier version of the “costs” statute, but People v. One 1950 Ford Sedan is still cited today for the proposition that “[t]he court ... could not award costs that were not authorized by statute.”  Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 243.   

	Today’s code section listing chargeable costs – CCP §1033.5 -- still does not include storage and towing fees incurred by the government in forfeiture cases.  
	If the City tries to stretch §1033.5(a)(5) -- “expenses of attachment including keeper’s fees” -- to include storage fees in forfeiture cases, that argument was also rejected in People v. One 1950 Ford Sedan, 140 Cal.App.2d at 650:
The case can be distinguished because the storage costs in that case were costs in aid of execution regulated in sections 1032.6 and 1033.7 of the Code of Civil Procedure which expressly permit the recovery of costs and disbursements reasonably and necessarily incurred in aid of collection of judgment and because said costs were incurred by the sheriff and had to be paid to him.

Although statutory law has changed over the past 44 years, including re-numbering of some of these code sections, the language “the expenses of attachment including keeper’s fees” in the cost shifting statute still refers only to the “keeper’s fees” incurred during the statutory process of attachment, a process which is strictly regulated in the Code of Civil Procedure, such as §483.010 which states:
 (a) Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.

Other code sections using the term “attachment” show that it is a term of art, referring to a process which is strictly a creature of statute, and that it cannot be construed so broadly as to refer to forfeiture cases under the Oakland ordinance.

2.	The Oakland Ordinance does not authorize the court to order claimants to pay storage fees 	
	Mr. Llamas’ letter dated April 21 claims that “the disposition of costs, including towing and storage, is already set forth in OMC 9.56.090 and liability for these costs is inherent in the ordinance.”  This is true. However, that section of the Oakland municipal code does not support the City’s position, but only our position. 

	OMC 9.56.090 plainly states that the costs incurred by the City “for any necessary repairs, storage or transportation of any vehicle seized under this chapter”^1 [OMC 9.56.090(B) (emphasis added)] shall be paid out of the proceeds of the sale of vehicles forfeited to the city, or cash payments made in settlement [OMC 9.56.090 first paragraph] after payment of bona fide lienholders, innocent purchasers or sales vendors, etc. [OMC 9.56.090(A)], and before the profits are split up between the City Attorney’s Office and local law enforcement entities. [OMC 9.56.090(C).] 	

^1  The inclusion of the word “any” in the phrase “any vehicle seized under this chapter” makes it clear that all towing and storage fees -- for any and all vehicles seized under this ordinance -- are to be paid by the City out of the gross revenues from sales of forfeited vehicles and settlement of forfeiture cases.  The ordinance does not authorize the shifting of these substantial costs to the hapless property owner who had his car seized under this ordinance.

	In the entire Ordinance, there is not a single provision that arguably entitles the court or the city to force the claimant to pay the storage and towing costs incurred by the city in enforcing this ordinance.  
	With clear language directing that the storage and towing costs for “any vehicles” seized under this ordinance be paid out of the city’s gross revenues, and no language authorizing the city or the court to force the claimant to pay those costs, there is no question that the claimant can not be held liable for these costs.   Under long-established canons of statutory construction, the primary principle is that the plain meaning of the statute controls.  This ordinance clearly states that storage and towing costs come out of the city’s gross revenues from forfeitures before the governmental entities split the profits.  
	The fact that there was no language authorizing the shifting of these expenses to the property owner triggers another principle of statutory construction – the doctrine of expressio unius est exclusio alterius, or “[t]he expression of some things in a statute necessarily means the exclusion of other things not expressed.”  Dean v. Superior Court (1998), 62 Cal.App.4th 638, 642, 73 Cal.Rptr.2d 70.  Therefore, the fact that the City of Oakland, in drafting this ordinance, directed that storage and towing fees for all seized vehicles be paid out of gross revenues, and did not specify any exceptions authorizing the shifting of these costs onto claimants, meant that  storage and towing costs should be paid out of the gross revenues generated by completed forfeitures under this ordinance and not be assessed against an individual clamant, whether successful or unsuccessful. 
	It is bad enough that the City Attorney’s office would be making such unauthorized demands for reimbursement of storage and towing costs to a claimant represented by counsel, as Mr. Kinney is here.  
	More disturbing is this question: what has the City Attorney’s office been telling pro se claimants -- most of them incapable of doing even a fraction of the complex legal research we have had to do in this case – about their liability for towing and storage costs, in order to get them to pay such costs as a condition of settlement?
	For the foregoing reasons this Court should include in its published decision an explanation of a claimant’s non-liability for storage and towing costs under this ordinance.
	
			                                    Respectfully submitted,

                                     			________________________
                                       			BRENDA GRANTLAND, ESQ.
						20 Sunnyside Suite A-204
						Mill Valley CA 94941
						(415) 380-9108

DECLARATION OF SERVICE BY MAIL
	I am a citizen of the United States and a resident of the County of Marin.  I am over the age of eighteen years and not a party to the within, above-entitled action; my business address is:  20 Sunnyside Suite A-204, Mill Valley CA 94941.
	On April 14, 2000, I served the within Proposed Statement of Decision on the City of Oakland, by faxing it to (510)238-6500, and by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States post office mail at Mill Valley, California, addressed as follows: 

Pelayo Llamas, Deputy City Attorney
One Frank H. Ogawa Plaza, 6^th Floor
Oakland, CA 94612

	I, Brenda Grantland, declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on this ____ day of April 2000, at Mill Valley, California.

 						 _____________________________
						        Brenda Grantland