Penaat v. City of San Jose

Opinion

THE COURT.

This appeal is from an order of the trial court denying the motion of plaintiff for a prehminary injunction against the City of San Jose, restraining the city from towing vehicles from the tow-away zones in the city to any location other than as authorized by section 22850 of the Vehicle Code, and from entering automobiles which are about to be towed, without the permission of the owners thereof.

[709]

Plaintiff’s vehicle was illegally parked, in violation of a posted city ordinance, at a location amply marked as a tow-away zone. City police cited and inventoried the vehicle in preparation for its removal, and had the car towed away by one of the private tow-trucks contracting with the city for removal of vehicles. The tow-truck operator found the car locked with a window open, entered the plaintiff’s vehicle to release the parking brake and place the car in neutral gear to avoid damage to the car, and took the vehicle to a private garage for storage.

Plaintiff contends that the procedure adopted by the city, in having the chief of police negotiate towing contracts with private garages and tow-truck operators, violates the provisions of section 22850 of the Vehicle Code, requiring that the removed vehicle be taken “to a garage designated ... by the governmental agency of which the officer or employee is a member, ...” There is no showing that the authority to negotiate towing contracts was not validly delegated to the chief of police by the city council. Absent such a showing, the presumption established by section 664 of the Evidence Code applies: “It is presumed that official duty has been regularly performed.” The chief of police, a public officer engaged by the city council and entrusted with the enforcement of traffic regulations and ordinances, is a proper person to represent the government agency involved in designating the garage to which impounded vehicles, including that of plaintiff in this case, are removed.

Plaintiff further contends that entry into the vehicle by the police or tow-truck operator for removal for storage or for the purposes of inventory is an unconstitutional search of the vehicle and an illegal entry. Re>moval of the illegally parked vehicle is authorized both by the Vehicle Code and by the local city council resolution.