Dewey, Robbem & Howe

Richard Hylton

13166 Jane Court

San Diego, CA 92129

858.484.6330 (Home)

858.444.5874 (Mobile)

United States District Court

Southern District of California

Richard Hylton,                    Plaintiff,           vs. Nancar, Inc. d/b/a Anytime Towing; INC.EMERY ENRIQUEZ; BILLY ANDAL; CITY OF SAN DIEGO;

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Richard Hylton, Petitioner/Appellant, vs. Anytime Towing, et al, Respondent/Appellee. 1. Case Number 12-57267 District Court No.  3:11-cv01039-GPC-WMC ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA FIRST AMENDED COMPLAINT VIOLATION OF FDCPA VIOLATION OF FCRA AS AMENDED BY FACTA UNLAWFUL DETENTION (42 U.S.C. § 1983) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS NEGLIGENCE FAILURE TO PROPERLY TRAIN FAILURE TO SUPERVISE AND DISCIPLINE VIOLATION OF CALIFORNIA CIVIL CODE § 52.1 PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF CONSTITUTIONAL VIOLATIONS

Plaintiff, Richard Hylton for himself, by himself, for his Complaint alleges:

1.     Richard Hylton brings this action under Section 814 of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692/, The Fair and Accurate Credit Transaction Act of 2003 (FACTA) that amended the Fair Credit Reporting Act (FCRA, 15 U.S.C. 1681 et seq.) and 42U.S.C. § 1983 to obtain monetary damages, temporary, preliminary, and permanent injunctive relief against Defendants to prevent them from engaging in unfair, deceptive, and abusive acts or practices in violation of the FDCPA, 15 U.S.C. 1692-1692p, and to obtain other equitable relief, including declaratory relief, restitution, disgorgement, and other ancillary equitable relief as is necessary to redress injury to consumers and the public interest resulting from Defendants' violations of the FDCPA, FACTA and the FCRA and other laws as described.

JURISDICTION AND VENUE

2.     This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331, 1337(a), and 1345, and 15 U.S.C. 1692/. This action arises under 15 U.S.C. 1692.

3.     Venue in the Southern District of California is proper under 28 U.S.C. 1391(b).

THE PLAINTIFF

4.     Plaintiff Richard Hylton is a "consumer."  A "consumer," is defined in Section 803(3) of the FDCPA, 15 U.S.C. 1692a(3), "means any natural person obligated or allegedly obligated to pay any debt." Other definitions of “consumer” abound in the public laws of the United States of America and in the laws of the State of California.

DEFINITIONS

5.     Under the public laws of the United States, the terms “credit” and “creditor” have the same meanings as in section 702 of the Equal Credit Opportunity Act.  The term “creditor” means any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit.

GENERAL ALLEGATIONS

6.     Due to the renewal Registration requirements of the vehicle code, as is acceptable to California Superior Court, and as represented in DMV’s renewal publications, at the relevant times, there are no circumstances under which plaintiff is  or was a debtor to any defendant named in this action, for any amount.

7.     Furthermore; the Superior Court Courtesy Notice (See Attachment R 002) instructs any peace officer to accept -by clearing in the certificate of correction- any of the proofs of registration that it recognizes on page 1 (See Attachment R 001.) This simply means that Andal (and or Enriquez and any peace officer) would have been required to accept the document that he rejected by writing his badge number and the other particulars. Since accepting plaintiff’s proof of payment is not a discretionary matter, the vehicle should not have been taken.

8.     Anytime Towing on May 12, 2010 and at all relevant times was not duly authorized by the City of San Diego to tow, impound or sell vehicles, as the result of police tows. In fact, after December 31, 2004, Anytime Towing was not authorized by the City of San Diego to tow, impound or sell vehicles as the result of police tows.

9.     The plaintiff is not by law required or obligated to interact with an outfit, here, Anytime Towing, that is not duly authorized by the City of San Diego, and its laws and regulations, to possess his vehicle.

10.            The plaintiff is authorized to reasonably rely on the vehicle release requirements published by San Diego and the State of California.

THE DEFENDANTS and their business activities

11.            At all times, material to this complaint, all defendants transacted business in this District and throughout the United States. The contracts, agreements, acts, violations of laws, statutes and/or omissions alleged, in this complaint, were entered into, performed, created, and/or occurred within the City of San Diego, State of California.

Nancar, Inc. d/b/a Anytime Towing

12.            On belief and on documentation provided by the City of San Diego and Anytime Towing, plaintiff alleges that Defendant Nancar, Inc. identifies itself as Nancar, Inc. d/b/a Anytime Towing "Anytime Towing" is a corporation that exists under the laws of the State of California. At all applicable times, it maintained its principal place of business in Poway California, San Diego County. Anytime Towing is a sophisticated and frequent litigant, particularly when it comes to litigating against the City of San Diego. Its cases include San Diego Police Tow Operators, Inc.; Allied Gardens Towing, Inc.; Nancar, Inc.; C & D Towing Specialists, Inc.; and Starrue, Inc. v. the City of San Diego [Tow1]; San Diego Superior Court Case No. 37-2008-00092176-CU-NP-CTL; San Diego Police Tow Operators, Inc.; Allied Gardens Towing, Inc.; Nancar, Inc.; C & D Towing Specialists, Inc.; and Starrue, Inc. v. the City of San Diego [Tow2]; San Diego Superior Court Case No. 37-2009-00087515-CU-MC-CTL;Nancar, Inc. v. City of San Diego, San Diego Superior Court Case No. 37-2011-00095241-CU-WM-CTL.

13.            A spate of litigation in the late 1990s preceded the above cases. Settlement of one of the 1990s cases, San Diego Police Tow Operators, Inc., et al. v. City of San Diego, et al, San Diego Superior Court Case No. 681578 extended the 5 year towing contract, begun in 1995, until December 31, 2004; the last valid extension issued by San Diego, approved by the City Council, City Attorney and accepted by Anytime Towing.

Emery Enriquez

14.            Emery Enriquez is a Police Officer employed by the City of San Diego and was an employee of the City of San Diego at all times material to this Complaint. At all times material to this Complaint, acting alone or in concert with others, he has formulated, directed, controlled, or participated in the acts and practices set forth in this Complaint. Emery Enriquez resides in this District and, in connection with the matters alleged herein, transacts, or has transacted, business in this District. 

Billy Andal

15.            Billy Andal is a Police Officer employed by the City of San Diego and was an employee of the City of San Diego at all times material to this Complaint. At all times material to this Complaint, acting alone or in concert with others, he has formulated, directed, controlled, or participated in the acts and practices set forth in this Complaint. Billy Andal resides in this District and, in connection with the matters alleged herein, transacts, or has transacted, business in this District.

City of San Diego

16.            City of San Diego is a municipal corporation in the State of California and exist under its laws. It contracts with various Towing Companies for the removal or Impoundment of vehicles. City of San Diego has a Collections Department or division that collects debts that San Diego claims are, due to it and debts due to others. By law, portions of some of the debts, that San Diego claims, are payable to others. San Diego publishes information that it collects debts due others. On this informed basis it is believed and alleged that the City of San Diego is a debt collector.

17.            To the extent that San Diego may not be a debt collector by construction of law, the reckless and abusive methods that it employs in the collection of debts, including its reckless, irresponsible and indiscriminate use of the Credit Reporting System, that damages persons who are not connected to its collection efforts, makes it a nuisance under the provisions of California Law; CA Civil Code §3479.

18.            For example, San Diego refuses to employ technological and other means to ensure that its reports to CRAs contain sufficient data to ensure that its reports are attached or associated with the correct consumers. Simultaneously, San Diego refuses to accept responsibility for the correction of errors that are the result of these shortcomings, and has consequently become a public nuisance.

19.            This nuisance has led the SDPD to dispatch its officers to plaintiff’s home seeking after Richard Hylton, an alleged car thief, much to the alarm and consternation of plaintiff’s family and plaintiff. Encounters between people classified as black and the police often do take strange turns, without provocation.

20.             Furthermore, as a direct result of San Diego’s careless reporting of credit information, Plaintiff has suffered prohibited nuisances, having received scores, perhaps hundreds of improper collection calls[1], threats and violations of privacy in the last three years. San Diego has evidence of this, promised correction, then reneged.

21.             In connection with the matters alleged herein, San Diego directs, transacts, or has transacted, business in this District and throughout the United States using instrumentalities of interstate commerce. According to -and certainly indeed as a result of- its expired Contract for Towing Services with Anytime Towing, the City of San Diego is or claims to be a creditor to owner/operators whose vehicles are towed or impounded under a city-initiated tow. It uses the banking system and postal system to extract and receive moneys directly and indirectly; so does Anytime Towing.

22.            Notwithstanding the General Allegations, The City of San Diego is a creditor to plaintiff, because it initiated the towing and impounding of plaintiff’s vehicle. This is especially true because at the time of the towing there was no contract with Anytime Towing for the towing of vehicles. The City of San Diego is a creditor to plaintiff for the reasons contained in the expired contract for towing services and for the reasons contained in San Diego’s official publications, particularly its Police Towing Procedures.

23.            As a result of all the foregoing, the City of San Diego is empowered to collect any valid legal debt that is owed to it as the result of a city-initiated tow. No valid debt, due from plaintiff exists, and if one does exist, due to the illegal nature of San Diego’s fee process, it is for an amount less than has been claimed, by San Diego’s “volunteers[2]”, or hirelings, whether those hirelings are direct or indirect.

CLAIMS

24.            All claims that may be required by law have been made against The City of San Diego, a municipality. All have been rejected.

THE TOWING CONTRACTS

25.            Anytime Towing, in 2008, represented and averred that it had no contract for towing services. It also represented that if a contract existed it was void, because it was created in violation of the California Vehicle Code or not in accordance to San Diego’s contracting requirements.

26.            The City of San Diego, through the City Attorney, has opined and represented in 2007 that the towing contracts expired in 2005, (the so-called 1994 contracts) could not be extended (again) because of the method behind the calculation and implementation of referral fees. San Diego’s exact words are:

“In addition, the City has determined that it cannot implement the contract currently pending for ACT. This award was tentatively made on the basis of a two-part RFP that considered both proposed referral fees and technical qualifications. It has been determined that this two-part RFP process, which included a referral fee proposal that was not restricted to ensure that the selected fee would not exceed the City’s costs in administering the towing program, could not be guaranteed to produce an arrangement that would comply with the law. Therefore, a new process is needed. The City is currently developing a new RFP that more clearly ensures compliance with the law.” See attachment H 002.

Background, Business Practice and Common Enterprise

27.            San Diego’s expired contracts for towing services references various external documents that are, by said references, incorporated into the contract. The SAN DIEGO POLICE DEPARTMENT PROCEDURE, hereafter “SDPD Procedures”, is one such document.  This document is updated from time to time and mentions that tow companies are responsible for the collection of fees that offset the City's costs. The towing companies must also collect unpaid fines and parking tickets, for San Diego, as a pre-condition for vehicle release.

28.            This cost recovery program is referenced in a towing contract (expired Dec 31, 2005) and documented in SAN DIEGO POLICE DEPARTMENT PROCEDURE 03/11/2010  7.08 - TRAFFIC  VEHICLE TOWING/IMPOUND AND RELEASE PROCEDURES, at page 4;  id:

v.       POLICE TOWS

Police tows may be generated for a variety of reasons. Many of these tows fall under a cost recovery program. The tow companies are responsible for the collection of fees that offset the City's costs for impounding vehicles of negligent owners/operators.

29.            After contract expiry, all towing companies operated under an unauthorized month-to-month ‘arrangement[3]” issued by a policeman (who according to the City Attorney, may be committing fraud or may not indemnified, by the city; MOL. Attachment J, page 7 ), on April 13, 2007. This was done apparently with canny anticipation and in defiance and contravention of the clear instruction of the City Attorney[4], written April 16, 2007. See Attachments H and I. See also Attachment J, page 8.

30.            This disavowed unauthorized month-to-month extension "arrangement" is an attempt to circumvent the authority of the City Attorney and is the vestige the contract mentioned earlier; the so-called 1994 contract that had been extended once before. Addressing this matter directly, the San Diego City Attorney stated, on December 18, 2009:

‘We understand that in the past some City contracts have been extended on “month-to-month” basis. To the extent these extensions have resulted in a total contract term of more than five years, and have not been approved by the City Council by ordinance by a two-thirds’ vote, the extensions are void or at least unenforceable against the City. G.L. Mezzetta, Inc., 78 Cal. App. 4th at 1094; Katsura,155 Cal. App. 4^th at 109—10 ‘

The City department responsible for the procurement should assess the likelihood of the contract extending beyond five years. If the initial term of the contract will extend beyond five years, the-City department should obtain City Council approval by ordinance by two-thirds’ vote prior to execution of the contract and commencement of services.

If the initial term of the contract is less than five years but the exercise of an option to extend will bring the total contract term beyond five years, the City department has the option of either: (1) obtaining City Council approval of the initial term and any anticipated extensions prior to commencement of the initial term, or (2) obtaining City Council approval prior to exercising the extension that will bring the contract term beyond five years.8

If the term of a contract has already extended beyond five years Without City Council approval by ordinance by two-thirds’ vote, the procuring City department should immediately seek retroactive approval or “ratification” of the contract by City Council. Courts typically permit local agencies to cure defects in the formation of a contract by subsequent ratification, provided that the local agency has the power to enter into the contract in the first instance, See, e.g., Los Angeles Dredging Company v. City of Long Beach, 210 Cal. 348, 359-61 (1930) (City Council could retroactively approve emergency contract signed by the city manager because competitive bidding was not strictly required); compare Reams v. Cooley, 171 Cal. 150, 15455 (1915) (when there is no exception to competitive bidding and none was performed, contract cannot be subsequently cured by ratification).

31.            As shown above, the City Attorney had issued an opinion (See Attachment H 002, page 2) that the defect in contract formation was beyond cure and prevented extension.

There was no valid writing or Contract for Towing Services

32.            The month-to-month “arrangement” or extension, by the rump group of one, policeman Maheu, was (not only) not approved, it was disavowed, by the Authority necessary for approval, the City Attorney. As a result, it did not meet the requirements of State Law and/or the Statute of Frauds;  Cal.Civ.Code §1624(a)(1) or, if oral, the Parol evidence rule.

33.            Again, according to Anytime Towing and the City of San Diego, at all relevant times, Anytime Towing included in demanded amounts (and was compelled to remit Referral Fees, according to Anytime Towing. See attachment O 003 paragraph.16.) fees that were not permitted by law, CVC 12110(b). See Attachments H. Accordingly; under the long-expired contract or invalid and disavowed “arrangement”, Anytime Towing collected debts mentioned in the so-called 1994 contract (at Section 3.10 page 19, 20, 21.) that included excessive Referral Fees, (sometime called franchise fees) that exceeded San Diego’s administrative costs. These excessive referral fees are not related to towing or impounding and are hidden in San Diego’s fee structure. This makes them invisible to motorists and not readily open to challenge. Accordingly, for the reasons presented –many obtained from Anytime Towing-; Anytime Towing is subject to the FDCPA, Rosenthal Act and other consumer protection laws; the primary reason is that illegal fees are not fines, related to towing or created by action of law.

34.            Furthermore, Anytime Towing’s direct hirelings (San Diego’s indirect) assert in their communications that the debt, allegedly owed by plaintiff, is subject to the protections afforded by the FDCPA and Rosenthal Act. See Attachments B and D.

35.            Accordingly; at all relevant times, for the foregoing relevant reasons, Anytime Towing performed illegal debt collections, for the benefit of San Diego.

36.            Furthermore, as noted and confirmed, according to Anytime Towing, the required payment of an excessive Referral Fee, embedded in the fee structure, as was required by San Diego, made its contract void from the outset. People who know the law agree. According to the City Attorney’s opinion of April  16, 2007 (Attachment H), and a Memorandum of Law, dated December 18, 2009 (Attachment J), the City Attorney for the City of San Diego agrees, although sometimes he resorts to weasel-words.

Anytime Towing’s knowing violations of the law

37.            As demonstrated by Anytime Towing’s papers (See Attachments N, O, P.), it knowingly included, collected and/or remitted illegal Referral fees to San Diego, during the out-of-contract period, under compulsion.

38.            According to Anytime Towing, it became aware of the illegal nature of these fees, that it was compelled to remit, after 2004.(see Attachment O 005, paragraphs. 23 and 24 ) According to Anytime Towing, the improper nature of the “referral fees,” were made known to it on or about April 4, 2007. As before, these illegal fees are, per se, excessive, not permitted by law and their presence violates all consumer protection laws. Additionally; other provisions of the California Vehicle Code outlaw the collection of excessive fees in connection to vehicle towing and mandates a penalty of 4 times the excess charged.

Anytime Towing’s claim to be plaintiff’s creditor

39.            Anytime Towing is a creditor as defined in the Rosenthal Fair Debt Collection Practices Act, FDCPA and FCRA as amended by FACTA because Anytime Towing in one or more communications sent to plaintiff claims that it is owed certain sums, by plaintiff. See Attachments L. These sums include an illegal excessive Referral Fee, of which it knew of and had made one or more legal Complaints about. It is a creditor because it notified one or more debt collectors, including Lien Enforcement and Rickenbacker Collections that it is a creditor, to plaintiff, in that it held an account to which plaintiff is alleged to be the debtor. See Attachments B, C and D.

40.            On information -much of it from Anytime Towing and the San Diego City Attorney- and belief, Plaintiff alleges that Anytime Towing's representations and implications, as to its standing, status and powers, with respect to plaintiff and plaintiff’s property –and the property of all persons whose property was seized under city-initiated tows during the period January 1, 1995 through July 31, 2011- were and are false. The falsehood of its representations and implications were known to Anytime Towing and San Diego, at and after the time plaintiff’s property was seized.

Sale of Vehicles as the result of City-Initiated tows

41.            As mentioned above, Anytime Towing, in the case San Diego Police Tow Operators, Inc, v. The City of San Diego: SDSC 37-2008-00092176-CU-NP-CTL, denied the existence of a contract between itself and the City of San Diego.  Invoking the provisions and powers of the contract -the existence or validity of which it denies- Anytime Towing sold or ordered the sale of Plaintiff’s vehicle –and thousands of others- that came into its possession as the result of city-initiated tows. According to figures obtained from the City of San Diego, the number of vehicles towed, since 1995, exceeds 350,000.

Control of the Common Enterprise

42.            The City of San Diego commanded, controlled or had authority to control, and/or participated in the acts and practices of the Defendants that comprise the common enterprise. These acts, as demonstrated above, have gone on for a period that exceeds ten years and in the period April 2007 through August 2011, continued over the objection of the San Diego City Attorney. The compelled payments made to San Diego which, of necessity, includes those collected from motorists, utilized instrumentalities of interstate commerce including the banking, wire-transfer and postal system. The common enterprise transacts or has transacted business in this District and a substantial part –likely all- of the events or omissions giving rise to the claims asserted herein have occurred in this District.

43.            From the above it is clear, that The City of San Diego's Contracts for Towing Services are a fiasco (or were at all applicable times.) The towing companies have run amok. They have applied fee increases that have not been approved by the City Council which fees have little or no documentation. In fact, when asked to explain or to provide documentation for fee increases San Diego offers expressions such as “it appears” rather than definitive statements or documentation.

San Diego’s Involvement; Revenue enhancement

44.            Having full knowledge that its paperwork was not in order and armed with two highly persuasive (April 16, 2007 and December 18, 2009) opinions from the City Attorney, that its inclusion of compelled excessive Referral Fees violated California’s Vehicle Code, the City of San Diego Police Department, ignored said opinions and nevertheless dispatched its police officers to lie in wait at strategic intersections with the purpose of impounding vehicles so as to obtain illegal excessive Referral Fees, to enhance San Diego revenues.

Vehicle Towing in Practice

45.            In practice, Anytime Towing performs vehicle towing and impoundment at the instruction of police officers; employees of the City of San Diego. San Diego Police officers are not authorised to use towing companies that do not have contracts with the City of San Diego on police tows. Andal and Enriquez, the police officers who initiated the tow of plaintiff’s vehicle, did not verify or ascertain if Anytime Towing was a contract towing company and, in that failure, violated Department Procedures. San Diego Police Procedures state:

D.      Contract Tow Companies

1.     Only contract tow companies will perform police tows. Contract tow trucks will be identified by a decal indicating "Police Authorized Tow Contractor" and the current year. All police tows shall be dispatched through CAD or via MCT.

46.            On the basis of the above requirement, and the preceding facts, any displayed decal should have shown the year 2004 and that, in and of itself, should have alerted Andal and Enriquez of the unfitness of Anytime Towing to conduct police tows; but the SDPD ignores laws and regulations and advice and opinion of the City Attorney, as demonstrated. Moreover, Anytime Towing having initiated legal proceedings and having knowledge of the documents, referenced so far knew that it was not legally authorized to conduct police tows. Furthermore, there was no emergency.

47.            Proper verification of Anytime Towing’s status would have established that Anytime Towing was not authorized to conduct city-initiated tows.

48.            In failing to perform said verification, and authorizing the tow to Anytime Towing, Andal and Enriquez violated San Diego policy and performed an illegal act under San Diego law.

49.            Anytime Towing took possession of plaintiff’s vehicle and assigned it to be sold, by Clear Choice Liens, Inc., its agent or Assignee when the vehicle was not recovered. See Attachment F 001. These actions were in direct violation of San Diego procedures and regulations and State law. As noted, Anytime Towing knew that it was not in possession of the required writings and rights to perform those actions. The state of affairs are material facts that should have been, but were not, disclosed to the California Department of Motor Vehicles as is required by CVC Section 20.

50.            As shown, at the time of the impoundment of plaintiff’s vehicle, Anytime Towing had lived outside the law for more than 5 years with the acquiescence of one person or some in the Police Department, and over the written objection of the ineffective City Attorney. See attachments H, I, J.

The Fee schedule

51.            Anytime Towing is required to charge fees that are approved by the City of San Diego, applicable at the time of the tow, and all fee increases must be approved by the San Diego City Council, under a provision found at section 3.8. of a contract that expired on or about January, 2005. According to Anytime Towing and San Diego, this fee schedule was adulterated by the process that created it. To make matters worse, Anytime Towing used a fee schedule effective June 2010 (D.C. Doc 83-5, page 58) in applying charges to the tow of Plaintiff’s vehicle; towed May 12, 2010. Furthermore, according to San Diego policy and procedures, and as a matter of law, having no contract, Anytime Towing was not legally empowered to charge fees, of any sort, on a police or city-initiated tow.

52.            To repeat, according to the City of San Diego (Attachments H, J, and N 001) and Anytime Towing (Attachments O,P), on May 12, 2010, Anytime Towing did not have a valid written towing contract with the City of San Diego. Indeed, according to the City of San Diego and Anytime Towing -based on the attachments referenced in this paragraph- on May 12, 2010, a valid towing contract with the City of San Diego did not exist, and if it did, that contract was void or voidable or unenforceable.

53.            Despite having the foregoing knowledge, having been the source of it, Anytime Towing nevertheless claimed to have assigned plaintiff’s vehicle for lien sale to Clear Choice Liens Inc., despite the lack of required paperwork, and inclusion of illegal, hidden, embedded referral fees in the lien amount. As a consequence Anytime Towing made false representations or caused false representations to be made or failed to disclose material facts or caused material facts not to be disclosed, to the California DMV. To be precise, a certification and declaration made to the DMV by or on behalf of Anytime Towing is false and violates CVC 3072(c) (4) (A):

 (A) The amount of the lien and the facts concerning the claim which gives rise to the lien.

This is equally true for every lien sale under the 1994 Contract(s) or “arrangement(s)” through August 2011, when new and legally compliant contracts were awarded. See attachment N 001.

54.            Despite the complete lack of legally required writings and possessed with knowledge of the facts stated before, plaintiff’s vehicle was sold, at auction, for less than 25% of the value estimated by Anytime Towing. This was an illegal conversion of plaintiff’s property.

55.            The relationship between San Diego and its towing companies bring to mind one of my grandfather’s favourite proverbs. “When a thief steals from a thief the devil laughs.”

COMMERCE

56.            At all times material to this Complaint, Defendants have maintained a substantial course of trade in or affecting commerce, as "commerce" is defined in Section 4 of the FTC Act, 15 U.S.C. 44. San Diego and State law required the use of the banking system in this endeavour.

NATURE OF ACTION and BACKGROUND TO DEFENDANTS' BUSINESS ACTIVITIES

57.            Not only have defendants improperly used a provision of Calfiornia Vehicle Code to seize plaintiff’s vehicle that is not matched to the status of plaintiff’s vehicle registration, but by using a fee process that included excessive amount, they have violated consumer protection laws too. All defendants have engaged in deceptive, unfair, and abusive practices in almost every facet of their dealings with motorists who are alleged to be debtors and from whom they try to collect, by extortion or coercion, a fee that they knew to be illegal for several years. Judging from their documents, they have maintained this course of action for a period well in excess of 10 years (from January 1995 through august 2011) and have used unfair and abusive methods, one of which, the cynical use of embedded illegal excessive referral fee, was virtually impossible to discover.

The Towing Fee Bonanza

58.            In recent years, as a result of declarations of Financial Emergencies, by many Cities, some have determined that the Impoundment of Vehicles and the Imposition of high fees for the release of the impounded vehicles is a way of increasing city revenues. To that end, many municipalities have stationed sobriety checkpoints in locations frequented by un-documented aliens and have impounded their vehicles when they are unable to produce licenses, registration or proof of insurance. The City of Bell is infamous for its open alleged behaviour. San Diego is not so careless. These practices are not new; they are the direct implementation of a study conducted at UC Berkley in or around 2000. Data on this study can be found at http://www.techtransfer.berkeley.edu/newsletter/00-3/vehicle.php.

59.            In the majority of cases the vehicles are never retrieved and are sold at auction, with the Cities sharing in the proceeds. Plaintiff believes that, the City of San Diego may have actively employed the above mentioned process and did so with flagrant disregard to the hardship it causes to motorists and it targets the most vulnerable of them; the poor and the minorities. Articles, publications and videos of this conduct, by others, can be found at http://articles.latimes.com/2011/mar/13/local/la-me-towing-20110314, and at http://abcnews.go.com/US/bell-california-scandal-reaches-court-city-manager-dozes/story?id=13028339.

60.            A 2005 investigation by a Grand Jury of the towing operations of police agencies that were located in Solano County, California (http://www.solano.courts.ca.gov/materials/Towing_Policy.pdf), launched in response to a citizen complaint, was focused on protecting the public from overzealous police officers and from rapacious towing companies. The results of the investigation, its findings and recommendations are too lengthy to be included here, however they begin with the following passage:

“The California Vehicle Code contains lengthy regulations regarding the towing, impounding and storage of vehicles and §22852 requires the police agency to mail a copy of the storage form to the legal and registered owners within 48 hours of storage, not including weekends. Under state law, the decision to tow a vehicle appears to be left up to the discretion of the individual officer at the scene. Because of this discretion given to officers,

the Grand Jury believes that law enforcement agencies should develop written policies regarding towing and storage of vehicles as guidance for police officers while also protecting members of the public from overzealous officers and towing companies. In the same vein, contracts with towing companies help to protect the public by specifying acceptable fees so that the public is not subjected to excessive charges by towing companies that might be tempted to take advantage of a citizen in an emergency situation. “

61.            San Diego’s disparaging name “Enron by the Sea” is hard-and-well earned. Here, the City and its officers not only ignored established law, SDPD written policy and procedures, and the opinion and admonishments of the City Attorney; it also hid an excessive component of its excessive fees (made excessive by illegal Referral fees) in a two part RFP; whatever that means!

62.            Most responsible Municipalities put an end to the above conduct, following the decision in Miranda v. City of Cornelius, 429 F.3d 858. The Legislature followed suit with a series of enactments, the most recent of which allows un-documented aliens to be licensed.

63.            Defendant Anytime Towing charges exorbitant fees for towing and storage. A fee schedule provided by Anytime Towing, in support its fees charged to plaintiff, remarkably dated June 1, 2010, showed a marked difference between the fees charged on city-initiated tows and those charged to other motorists for the same services. At least, in part, the differential may be explained by the presence of an embedded excessive “Referral Fee” for city-initiated tows.

Anytime Towing is a debt-collector that collects

 “low hanging fruit" debts.

Difficult debt collections are assigned to competent debt-collectors.

64.            To repeat, the expired 1994 contract between Nancar, Inc. dba Anytime Towing and San Diego, in many places, specifies that it must collect and/or remit impound fees (3.10), Referral Fees (3.11) outstanding citations, parking tickets etc (3.15) that are due to the City of San Diego as preconditions for vehicle release. For police-initiated tows, the towing fees that it collects are to offset fees that are due Anytime Towing, from the City of San Diego, for that towing and impounding transaction. In the SDPD procedures, San Diego describes this arrangement as a cost-recovery process.

65.            As stated before, according to the City Attorney, Anytime Towing and others, the fee structure upon which this scheme was built was manipulated or structured so as to include an excessive Referral Fee. This excessive Referral Fee is illegal, according to City Attorney, Anytime Towing and others. Its inclusion and collection violates Cal Veh. Code 12110(b). In short, Anytime Towing was collecting illegal “debts”, on behalf of San Diego and did this using the coercive power that was at its disposal, because it was in possession of owner’s vehicles.

Low hanging fruit-collections

66.            Generally; when the vehicle is expensive, the incentive to retrieve it is high and the collection effort is minimal. This effort is generally limited to, providing release requirements, accessing City Records to obtain amounts due the city and accepting payment.

67.            In all transactions, under the illegal regime created by San Diego’s rigged fee structure, any individual who encounters the defendants, is a consumer, and has a right to all consumer protections. This is particularly true when amounts sought include illegal or forbidden amounts.

68.            In their initial written communications, Rickenbacker and Lien Enforcement, hirelings of Anytime Towing, indicated that the debt was subject to consumer protections laws, particularly the FDCPA and Rosenthal Act (Attachments B 001 and D001.) Each stated or implied that they would or may communicate adverse information, about the plaintiff to credit reporting agencies. For example, Lien enforcement wrote: "As required by law, you are hereby notified that a negative credit report reflecting on your credit may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations. In the next sentence Lien Enforcement went on to say "We will not submit a negative credit report to a credit reporting agency about this credit obligation until the expiration of the 30 day time period described in the preceding paragraph. By this statement Lien Enforcement implied that it would submit a negative credit report upon the expiration of the 30 day time period described in the preceding paragraph. See Attachment D 001.

69.            For the period January 1, 1995 through around January 31, 2009, the total in illegal referral fees was computed by Anytime Towing to be $23Million.

 Vehicle sales

70.            Despite having no valid written papers, from the City of San Diego, but flaunting and making use of a fraudulent ineffectual letter of contract extension, signed by an unauthorized lickspittle (which letter it attacked as unauthorized in a lawsuit against the City), Anytime Towing, ignoring common law and the Statute of Frauds, and the express opinion of the San Diego City Attorney, openly and notoriously, exercised and assigned a power of sale that it knew that it did not possess. At these sales Anytime Towing used a self-serving value that it called “Value for Auction purposes.” This “Value for Auction purposes” produced sales prices that are fractions of “Value.” See Attachment HH 001. This results in demands being made on defendants’ victims with Referrals to collection agencies for “unrecovered sums.” See Attachment C001.

71.            There is no statutory basis for the sale of vehicles for less than value. There is no statutorily recognized “Value for Auction purposes.” The requirements of California Vehicle Code Section 22670 –recited in SDPD procedures- are unambiguous. It requires sale for value.Id:

IV.       PROCEDURES

           A.         Impound Reports

4. The approximate value of the vehicle MUST be noted on the vehicle report under "Appraised Value." Failure to appraise the vehicle can make the City liable if the towing company scraps/disposes of a vehicle at a lower value than its actual value (22670 CVC).

72.            Irrespective of the foregoing DMV’s instruction for persons conducting lien sales is to “Determine the market value of the vehicle.”

73.            Anytime Towing’s appraised value showed a value range of $1,900.00 to $3,475.00 with an average of $2,700.00.(Attachment F 001) Anytime Towing sold plaintiff’s vehicle under the stimulus that prevails at Auto Auctions and where, plaintiff has learned, bidders are guaranteed a resale profit of between 1200.00 and 1500.00; according to Anytime Towing’s “expert” Manheim. As a matter of fact, had the vehicle been sold for the lowest of vehicle values ($1900.00), a surplus, payable to the DMV, would have been produced.

74.            For all the preceding reasons, Plaintiff’s property was not sold legally, and was not sold for a value that was close to the “Appraised Value” or market value or value of the vehicle. The sale of plaintiff’s vehicle for $600.00[5] violated California Law and San Diego Policy, Procedures and Regulations and DMV rules.

75.            And, for the preceding reasons any report made or threatened to be made or amount of debt claimed, either directly or indirectly by Anytime Towing or its hirelings to any Credit Reporting Agency or to any state agency, including the California DMV, is false was false and was known to be false by Anytime Towing and San Diego.

Higher fruit collections

76.            As noted before; when the vehicle is not retrieved it is sold. If proceeds of sale are insufficient to cover Anytime Towing's computation of the debt; significant “unrecovered” amounts are turned over to competent debt-collectors. These are people who do collections as their primary business. 

“Using” The Hammer of the Negative Credit Reference

in a Credit report as a collection tool

77.            The hammer of the negative credit reference or record is a potent tool. All collection letters, which I have seen, contain a threat of the adverse credit report, by the letter writer. Anytime Towing wields the hammer through its hirelings, full-service collection agencies.

78.            Not having the network or information technology or staff to access the systems or records of the major credit reporting agencies, Anytime Towing uses the facilities of competent debt-collectors to pound consumers. In this instant case the first user of this hammer was Rickenbacker Collections, the second Lien Enforcement Inc.

79.            Both collection agencies, armed with false inaccurate data (inflated by illegal fees and vehicle sale for less than vehicle value), on plaintiff, provided by Anytime Towing, reported or threatened to report said data to Credit Reporting Agencies as a collection tool for their benefit and of the defendants.

80.            In practice, amounts that are collected by Rickenbacker or Lien Enforcement are funneled back to Anytime Towing, and through to San Diego, after appropriate deductions. Accordingly; Anytime Towing, through its conduits to the CRAs, Rickenbacker and Lien Enforcement, Inc.,( See Exhibit B and C)  employed indirect means to use a credit report, as a collection tool, including the use or threats to use information (known by Anytime Towing and San Diego to be false) that, would or could appear in plaintiff’s credit files, in its collection efforts. That is called extortion or blackmail.

FCRA-FACTA

81.            Under FACTA that amends the FCRA a person who is or claims to be a creditor must investigate any dispute it receives from a debtor, and respond with a report to the source of the dispute. A failure to do both is a violation of the FCRA.

82.            On two or more occasions, Anytime Towing had received and responded to plaintiff’s written communications that disputed the debt; Attachments K001-K002. However, no response from Anytime Towing contained any information that they had conducted an investigation of plaintiff’s claims. No response contained any report, of any kind, to plaintiff. In fact, as shown in Attachments L001-L004, one or more responses contained false claims as to its authorization or legal status and contract status; in-effect false claims as to the status of the debt.  Plaintiff’s communications were ridiculed and dismissed as being full of falsehoods. In addition, Anytime Towing refused to provide a copy of the towing contract (to which is attached the fee schedule) and threatened suit for harassment.

83.            On all occasions, letters of dispute to the City of San Diego, did not result in a response to plaintiff that showed that there was an investigation and/or a report of the investigation by San Diego. Attachments M001-M008. In fact, it has been learned that there was no response from the City Attorney because exception was taken to the question that sought to know if the policemen were operating as highwaymen.

Racial Profiling in San Diego by the San Diego Police Department

84.            A U.S. Department of Justice report states that African Americans were 20 percent more likely to be stopped by the police than white Americans were. It also documented that police were more than twice as likely to search the car of an African American or Hispanic driver than a vehicle driven by a white person. San Diego is exceptional. Recent analysis of 2013 data shows the difference to be 300%. The aforementioned Justice Department report recounted several incidents, one of which is locally applicable:

San Diego Chargers football player Shawn Lee was pulled over on Interstate 15 in California. The officer proceeded to handcuff him and his girlfriend and detained them along the side of the road for thirty minutes. The police claimed Lee was stopped because his vehicle fit the description of one stolen earlier that evening. The stolen vehicle, however, was a Honda sedan and Lee was driving a Jeep Cherokee.

85.            Two recently-discovered May 2001 and November 2002 studies, by the San Diego Police Department, concluded that Blacks and Hispanics were significantly more likely to be stopped, arrested and searched by the San Diego Police Department (The SDPD chief states or suggests the opposite.) The reason for this higher stop rate was not explained and was the subject of much speculation and misinformation, much of it disseminated by the current leadership of the SDPD.

86.            However, the November report noted that the data, upon which the report was based, did not use the most reliable –citation- data. Instead, San Diego has eschewed the source of the most reliable data and has adopted, implemented and embraced  a policy that relied and relies upon the haphazard completion of voluntary data (forms). This policy contains a promise of anonymity to San Diego Police officers who participate in data collection activities.

87.            Using reliable data from citations -that captures all essential data required for Vehicle Stop Analysis- has the undesirable effect of identifying the officer involved with that traffic stop; an effect that is repugnant to San Diego.

88.            San Diego has an affirmative duty to identify, correct, train, re-train or discipline officers who practice selective enforcement of traffic laws based on race or ethnicity. The Supreme Court, in Whren v. United States, supra, at p. 813 [135 L.Ed.2nd at p. 98, has declared such selective or race-based enforcement of laws to be illegal. San Diego’s duty cannot be met under its policy that promises anonymity (that is effectively immunity) to its police officers.

89.            The effect of San Diego’s effective grant of immunity, to all of its police officers, has had devastating physical, psychological and economic consequences for the members of the Groups who have been the object of targeted or disparate and sometimes plain unlawful enforcement of traffic laws. Plaintiff is a member of one or more of these groups and has suffered the above effects.

90.            The case of Harrell & Robinson, Case 3:11-cv-00876-AJB-WVG, recounts an encounter of March 30, 2010 is illustrative. In this Southern District Case, where SDPD officers pursued, stopped, detained, tasered, battered, arrested and maced two African Americans and a Jamaican National, Ben Thomas-despite having determined that there was no lawful reason to continue the encounter- demonstrates the effect of San Diego’s carte blanche on officer behaviour. Much of the encounter was recorded by Harrell and the 911 operator or system. Most harrowing is a section where the Jamaican is heard beseeching an officer not to shoot him.

91.             As is evident, the officers involved in Case 3:11-cv-00876-AJB-WVG, did not remain anonymous. In fact, according to San Diego, The Attorney General has begun an investigation of this matter:

“According to California Government Code § 6254(f), records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency... are exempt from disclosure.”

92.             There is nothing to investigate. The facts are established.

93.            When San Diego policemen, motivated by bigotry, racial animus, peer-pressure or the desire to fit-in in a department that practices racial profiling or race-based enforcement of traffic laws, conform to that policy and practice, the effect on the persons to whom the improper actions are directed is devastating. Plaintiff has been devastated by this conduct, economically, physically or medically and psychologically. Said devastation is the result of the constitutionally infirm policy of the SDPD that allows police officers to anonymously violate constitutional protections with impunity (the result of SDPD’s policy of effective immunity); which conduct has continued since at least 2002.

Precipitating FACTS

94.            Plaintiff was pursued and stopped by Enriquez and his, apparent, partner Andal on May 12, 2010 for having expired registration tags and his vehicle was impounded. Plaintiff provided both the officer and his partner with evidence of Registration. This evidence of registration, Online Renewal, was generated from the systems of the California Department of Motor Vehicles. Andal was required to accept that document and to allow plaintiff to proceed; see attachments R001 and R002. He did not. He continued to detain plaintiff for more than 15 minutes but less than a half hour.

95.            Andal informed plaintiff that Plaintiff’s car was going to be impounded because plaintiff’s registration was Expired. Andal demanded and was provided with Plaintiff’s ignition key. Andal suggested that Plaintiff call someone to pick him up.

96.            Enriquez stood to the passenger’s side of the plaintiff’s car and asked plaintiff what kind of business he was in and where he worked. Plaintiff did not respond.  Enriquez repeated the request. I informed him that that I developed software, but did not see how that or where I worked was relevant to our present encounter.

97.            Andal provided plaintiff with a citation Showing “Expired Registration.

98.            The status of the vehicle Registration was brought to attention of Andal attention, again.

99.            Andal, snarled; I quote “I know that things are tough nowadays but you should have paid your registration months ago”. I reminded him that the registration fee was paid.  Andal,  asked me what I did and where I worked, I answered that his partner had asked the same question and that I failed to see it relevance but would answer if I was required to. I asked directly, “am I required to answer these questions.” Andal, said “no you do not have to; I was trying to make conversation.”

100.       I asked Andal  how I could recover my car. He advised that I would have to pay a towing fee and would have to provide the towing company with a valid or current registration.( San Diego uses the terms valid registration and current registration interchangeably.)

101.       I advised Andal that his action meant that I could not ever get the car. Andal said “Look that is your problem. Are you sure that I won’t find guns, drugs or nuclear weapons in the car.” I assured Andal that there were none and walked home.

102.       Andal implied or asserted that Plaintiff's vehicle would be searched for guns, drugs and nuclear weapons. Plaintiff’s vehicle was searched by one or more employees of the city of San Diego, including Andal and/or Enriquez.

103.       An Online Registration Renewal is considered a temporary receipt, by the California Department of Motor Vehicles. It is proof of Registration (unqualified by magical words) according to the California Superior Court. See attachment S 001. Presentation of this document to a peace officer requires him to accept it and to clear any perceived infraction. See attachment R 002 and R 001.

104.       California Statutes permit the removal of vehicles. San Diego’s Officers used CVC 22651.

CA VC 22651

 Circumstances Permitting Removal

(A)           With a registration expiration[6] date in excess of six months before the date is found or operated on the highway, public lands, or offstreet parking facility.

105.       The state of plaintiff’s vehicle’s registration did not meet the criterion that permits removal under the statute (as the Superior Court held) and law recognizes the plain meaning of words:

"We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.:" Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980). "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254.

106.       So by “calling a deer a horse[7]” San Diego’s policemen, Andal and Enriquez seized plaintiff’s vehicle and the reason for seizure as was written, maintained and conflated.

107.       The vehicle’s registration was not expired according to the temporary receipt that was provided to Andal. Its name, Online Registration Renewal, is sufficient. Accordingly; the claimed basis for the seizure of the vehicle did not conform to the claimed statutory authority and as a result Plaintiff’s right to due process (right to respond to an accurate charge) was violated.

108.       Plaintiff’s Vehicle was impounded, by Enriquez, on May 12, 2010 0730. See Attachment G 001.

109.       The City of San Diego does not train its officers in the use of temporary receipts. San Diego’s training manuals do not contain facsimiles or reproductions of DMV receipts that may be presented to officers as allowed under California law; California Civil Code 4462.

110.       According to the records of The California Department of Motor Vehicles, plaintiff’s vehicle was in its records as registered, but that the registration was un-validated, during the period May 12, 2010 until February 7, 2011. According to The California Department of Motor Vehicles the registration was un-validated because a successful smog inspection was not presented to the DMV. DMV is correct.

111.       The California Department of Motor Vehicles threatened to suspended the registration of plaintiff’s vehicle in or around December 2010 and suspended it on February 7, 2011.

112.       Except in Orwellian blackwhite[8] “newspeak” a privilege or object that has an expiry, and is expired, cannot be suspended; and the law recognizes the ordinary meaning of words.

113.       According to its written policy and procedures, and the release procedures of the State of California, The City of San Diego has a policy of not allowing the release of impounded vehicles, where the Registration has expired and the vehicle owner does not present a validated registration. According to its expired contract, with San Diego, Anytime Towing is required to follow San Diego’s procedures. Anytime Towing has represented, in writing, that a validated registration is a pre-requisite for release of a vehicle.

114.       As noted above, particularly in the paragraphs named (Precipitating Facts), as a result of the policemen’s action in impounding the vehicle, obtaining the release of the vehicle -in view of State Law, San Diego’s policy and definition of Registration- was impossible and its sale, by persons without a legal power of sale, guaranteed.

115.       The City of San Diego was paid an excessive referral fee by Anytime Towing, for referring plaintiff’s vehicle to Anytime Towing, a non-contract towing company as the result of a demand or compulsion by the City of San Diego, a public body, under a regime that the San Diego City Attorney opines is illegal, Anytime Towing avers is illegal and City of San Diego admits is illegal.

Defendants' Unfair, Deceptive, and Abusive Collection Practices

Anytime Towing, Enriquez and Andal

116.       At the time of the encounter, May 12, 2010, both officers (Enriquez and Andal) as employees of the City, that collects its own debts and debts due others, asked plaintiff what kind of business he was in and where he worked. Having collected debts, plaintiff knows that a person’s place of employment is the primary data element sought by debt collectors.

117.       Neither Enriquez nor Andal disclosed that the information regarding plaintiff's place of business could or would be used for debt collection purposes.

118.        Plaintiff believes and therefore alleges that a request that comes from a law enforcement officer for one's place of business is intimidating, coercive and accordingly unfair and would be used for debt-collection purposes.

119.       On information, including experience, plaintiff believes and therefore alleges that the place where plaintiff worked was to be used for debt collection purposes, by San Diego; a City that collects its own debts and debts due others.

120.       Anytime Towing, a non-contract towing company, at the direction of Officer Andal and/or Enriquez and in violation of SDPD procedures, took possession of and towed plaintiffs vehicle to its yard in Poway despite its knowledge that as a non-contract towing company it was prohibited from doing so by contract, SDPD procedure, City Regulation or law. The City of San Diego procedural requirement is as shown below:

D. Contract Tow Companies

2.      Only contract tow companies will perform police tows. Contract tow trucks will be identified by a decal indicating "Police Authorized Tow Contractor" and the current year. All police tows shall be dispatched through CAD or via MCT.

121.       By assigning plaintiff's vehicle to a non-contract towing company Enriquez and Andal violated San Diego Regulations and the procedures and regulations of the San Diego Police Department, a public agency, and the policy that these procedures implemented.

122.       The contract under which Anytime Towing claims that it was operating requires that the schedule of rates charged by the operator shall be available in the tow truck, and shall be presented upon demand to person(s) for whom the tow services were provided, or his/her agent. Section 3.8 lines 6-8. Anytime Towing refused to provide a schedule of fees upon plaintiff’s demand.

123.       When the schedule of fees was finally provided, it was dated June 1, 2010 (18 days after plaintiffs encounter.) The fees shown and charged contained evidence of increases that were not approved by the City of San Diego as required by the contract (Sec 3.8 Towing and Storage Rates) under which Anytime Towing claimed to be operating. The fee structure, that produced the fee schedule included provisions for an excessive illegal Referral, payable to San Diego.

124.       Anytime Towing, the towing company that sold Plaintiff's vehicle sold it for less than value, according to its own estimate and its claim for a deficiency is improper and unfair, as is its inclusion of excessive referral fees, and perhaps is criminal. Doubtless; it is extortion as defined:

                                                                                                               

The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

125.       Under the Common Law, extortion is a misdemeanor consisting of an unlawful taking of money by a government officer. It is an oppressive misuse of the power with which the law clothes a public officer. Andal and Enriquez were clothed with powers that assisted San Diego and the other defendants in extortion.

126.       Most jurisdictions have statutes governing extortion that broaden the common-law definition. Under such statutes, any person who takes money or property from another by means of illegal compulsion may be guilty of the offense. When used in this sense, extortion is synonymous with blackmail, which is extortion by a private person, like Anytime Towing.

Anytime Towing

Misrepresentation of Amounts Owed

127.       Plaintiff incorporates by reference all the foregoing paragraphs.

128.       In the course and conduct of their debt collection, and other business, defendants Anytime Towing and San Diego in numerous instances have represented, expressly or by implication that the plaintiff owes the amounts specified in defendants’ communications. In truth and in fact, in all instances, plaintiff owes nothing or an amount that is less (according to information from Anytime Towing and San Diego) than the amount claimed. In truth and in fact All defendants knew, or should have known, that the alleged debt, or a part of it, was created by an illegal corrupt or improper action; the inclusion of embedded i.e. hidden “referral fees”, payable to San Diego, that plaintiff and others similarly situated could not have known of, objected to, or contested.

129.       Therefore, defendants’ representations as set forth in the preceding paragraphs are false or misleading and constitute deceptive acts or practices.

130.       Defendants’ actions have caused and are likely to cause continued substantial injury to plaintiff and to other consumers. This injury is not reasonably avoidable by consumers and not outweighed by countervailing benefits to consumers or competition.

131.       Defendants’ acts or practices constitute unfair and deceptive acts or practices in or affecting commerce in violation of Section 5(a) of the Federal Trade Commission Act, 15 and The California Civil Code that prohibits Unfair Business practices.

132.       Defendants’ acts or practices constitute unfair and deceptive acts in violation of Section 5(a) of FDCPA and the Public Policy of the United States, formalized by the FTC Act, 15 U.S.C. § 45(a) and the California Civil Code that prohibits Unfair Business Practises.

Anytime Towing Failing to State That Communications

are from a Debt Collector

133.       Plaintiff incorporates by reference all the foregoing paragraphs.

134.       Section 1788.17. of the  Rosenthal Fair Debt Collection Practices Act requires that, every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code (the FDCPA.)

135.       On two or more occasions, in communications concerning an alleged debt, defendant Anytime Towing, a collector of debts, including illegal debts, failed to include in said communications, the language specified  in Section  USC 1692e 11 Title 15  of the United States Code. The alleged debt contained an amount that was not legally connected to fines, impounds or actions of law. The amount was not legal at all.

VIOLATION OF FACTA AND THE FCRA BY ANYTIME TOWING

FAILURE TO INVESTIGATE AND REPORT ON CONSUMER DISPUTE

136.       All prior paragraphs is included herein.

137.       Congress enacted FACTA to amend the Fair Credit Reporting Act, to prevent identity theft, improve resolution of consumer disputes, improve the accuracy of consumer records, make improvements in the use of, and consumer access to, credit information, and for other purposes." Pub.L. No. 108-159, 117 Stat. at 1952. Acts of Congress represent the Public Policy of the United States of America.

138.        The term “creditor” means any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit. Creditor includes persons who claim to hold accounts of debtors.

139.       In written communications to plaintiff, which came after plaintiff disputed[9] the debt, Anytime Towing referred to an account (Call 051200019) and amounts due it by plaintiff. See attachment L; letter dated September 1, 2010. By this letter, Anytime Towing claims that it is plaintiff's creditor and that it was about the business of collecting money from plaintiff. It states, on page 2, “Forwarding a copy of your complaint to the City Attorney will not help us collect the money from you.”

140.       In its letter of September 28, 2010, that was responsive to several of plaintiff's letters, each of which disputed the debt, and one of which disclosed the decision of the Superior Court (See attachment K 001.) Anytime Towing dismissed plaintiff's complaints with refusals, false claims and by declaring plaintiff’s dispute as "full of inaccuracies and untruths" and in so doing disclosed a failure to investigate plaintiff's complaint. Instead, Anytime Towing ordered plaintiff not to make contact again and threatened suit. See attachments L 004.

141.       FACTA requires holders or consumer accounts to investigate customer complaints and to report on their findings. Anytime Towing failed to investigate or report, instead; Anytime Towing threatened suit.

142.       In failing to perform the duties as described in the preceding paragraphs, Anytime Towing violated the FCRA and the Public Policy of the United States of America, including Article III of the Constitution of the United States of America and deprived plaintiff of his statutory rights guaranteed by the FCRA; Robins v. Spokeo, Inc., Case No. 2:10-cv-05306-ODW-AGR .

VIOLATION OF FACTA AND THE FCRA BY THE CITY OF SAN DIEGO

143.       All prior paragraphs is included herein.

144.       The City of San Diego represents that fees due to it are collectable by Contract Towing companies, on a cost recovery basis. In section V POLICE TOWS; of the SAN DIEGO POLICE DEPARTMENT PROCEDURE; 03/11/2010; 7.08 TRAFFIC; VEHICLE TOWING AND RELEASE PROCEDURES, San Diego states that "The tow companies are responsible for the collection of fees that offset the City's cost for impounding vehicles of negligent owners/operators[10]." In spite of its opinions and admonishments to San Diego about the 1994 contracts, the same City Attorney has falsely attested and sworn that Anytime towing is a contract towing company.

145.       As mentioned, under the terms of its arrangement with Anytime Towing and as a matter of law, and as the result of the absence of a valid towing contract, the creditor to whom any “debt” would be owed, by plaintiff, is the City of San Diego.

146.       Beginning in or about September 2010, plaintiff sent numerous communications to the city of San Diego disputing the existence and amounts of the debt and legal basis for said debt. These communications were sent to the Mayor, the Chief of Police and The City Attorney. Some of these communications are in the attachments M. No city representative reported to plaintiff, on the result of any investigation concerning the validity or amount of the debt. None has validated the amount of the debt or the fees that comprise the debt, despite a request for same. In fact, internal documents from the City of San Diego show that the City Attorney agrees with plaintiff’s position. Nevertheless; San Diego did not report to Plaintiff, a debtor to San Diego, according to its claim and, as would be the case, by action of law, had the debt been legal. These failures violate the FCRA, as amended by FACTA and plaintiff’s statutory rights as guaranteed by Article III rights under the United States Constitution; Robins v. SPOKEO, INC; No. 11-56843 D.C. No.2:10-cv-05306-ODW-AGR .

THE FAIR DEBT COLLECTION PRACTICES ACT and

California Rosenthal Act

147.       In 1977, Congress passed the FDCPA, 15 U.S.C. 1692-16920, which became effective on March 20, 1978, and has been in force ever since that date. Section 814 of the FDCPA, 15 U.S.C. 16921, provides that a violation of the FDCPA shall be deemed an unfair or deceptive act or practice in violation of the FTC Act.

148.       California’s Rosenthal Act, Civil Code, 1788.17, requires that every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code.

149.       Defendants, Anytime Towing; City of San Diego are believed and alleged to be "debt collectors" as defined in Section 803(6) of the FDCPA, 15 U.S.C. 1692a(6); Anytime Towing, at least, as a result of its activity and the representations of its hirelings. Each is a believed and alleged to be debt collectors under the Rosenthal Act for the same reasons. Andal and Enriquez are employees of San Diego.

150.       A "consumer," as defined in Section 803(3) of the FDCPA, 15 U.S.C. 1692a(3), "means any natural person obligated or allegedly obligated  to pay any debt."

151.       Under the Rosenthal Act the term debt is not qualified, it means money, property or equivalent due or alleged to be due from a natural person. FDCPA has a definition called “consumer debt” that is tied to consumer credit transactions (this court can and must resolve the differences, if any apply.)

152.       Other consumer protection laws do not define consumer at all, e.g. Anticybersquatting Consumer Protection Act 15 U.S.C. § 1125(D).

153.       Plaintiff, a consumer under consumer protection laws, contends and alleges that he owes nothing and alleges that all attempts to collect from him are tantamount to extortion by collectors of debts.

VIOLATIONS OF THE FAIR CREDIT REPORTING ACT

AND THE FDCPA and

Anytime Towing’s vicarious liability  

154.       All prior allegations are included here.

155.       Anytime Towing’s hirelings threatened to communicate adverse credit information for inclusion in plaintiff’s credit files. Any adverse information that Anytime Towing’s hireling debt-collection agencies, could communicate and threatened to communicate, to any credit reporting agency, about plaintiff is false and was known to be false or should have been known to be false, by those hirelings and the sources of information, and fee computation or setting, Anytime Towing and San Diego.

156.       Additionally; more than two years have passed, and, as far as Plaintiff has determined, and neither hireling has made any report to any credit reporting agency. Accordingly, the hirelings of Anytime Towing, threatened to take actions that they did not intend to take and they did so at the behest of Anytime Towing to the consternation and alarm of plaintiff.

157.       This consumer and consumers, in general, have suffered, and will continue to suffer, substantial injury as a result of defendants' violations of the FACT Act, FDCPA, FCRA. Without injunctive relief (that requires San Diego and its hirelings to correct reports made to Credit reporting agencies) from this Court, consumer injury will not end and the defendants are likely to continue to injure consumers and harm the public interests. Anytime Towing is vicariously liable for the conduct of its hirelings, who were duly authorized and empowered by Anytime Towing. This regime of conduct is the natural result of an illegal scheme concocted and approved by The City of San Diego and as such is part of practice and policy of The City of San Diego.

158.       For these violations of the FDCPA, Anytime Towing is vicariously liable.

ANDAL, ENRIQUEZ, CITY OF SAN DIEGO, Anytime Towing use of, deceptive, or misleading representations or means

159.       All prior allegations are incorporated herein. In numerous instances, in connection with the collection of claimed consumer  debts, Defendants Andal, Enriquez, City of San Diego, Anytime Towing and their hirelings or assigns have used false, deceptive, or misleading representations or means, in violation of Section 807 of the FDCPA, 15 U.S.C. 1692e, including, but not limited to:

(a)  Threatening to take action that is not lawful or that Defendants did not intend to take, such as reporting negative information to Credit Reporting Agencies in violation of the FDCPA, 15 U.S.C. 1692;

(b) Including amounts in claimed debts that are not permitted by law.

(c)  Obtaining information on plaintiff that would be used for debt-collection purposes.

Additional specific illegal acts of each is as follows.

160.       All prior allegations are incorporated herein. Andal and Enriquez, as employees of the City of San Diego and for their personal benefit, on May 10, 2010 attempted to obtain plaintiff's place of employment, using their status as policemen, without disclosing that that information would or could be used for debt collection purposes.

161.       Anytime Towing, a collector of illegal debts threatened counter-suit that it has not begun and had no intention or power to begin on a non-frivolous basis. Anytime Towing indirectly used Lien Enforcement Inc. and Rickenbacker Inc., its agents, to threaten to report negative and false (due to the inclusion of illegal amounts) information to Credit Reporting Agencies, as part of its collection effort. Anytime Towing a non-contract towing company misrepresented its status and relationship with the City of San Diego and its rights and consequently misrepresented the status of the debt that it claimed from plaintiff.

162.       Pursuant to Section 814(a) of the FDCPA, 15 U.S.C. 1692 1(a), the acts and practices alleged in the preceding paragraph also constitute deceptive acts or practices in violation of the FTC Act, a expression of the public policy of the United States of America, and the California Civil Code that prohibits Unfair Business Practises.

Violation of the United States Constitution’s provision

against unlawful search and seizure and taking of private property.

163.       All prior paragraphs are incorporated herein.

164.       The impoundment of Plaintiff’s vehicle, as described before, for the reason given, is an unlawful seizure because the reason given for the impoundment is false, because, in its web-form, which when printed functions as a receipt, the California DMV, unambiguously stated that the vehicle registration would be updated:

“The information from your transaction will update on the vehicle registration record after settlement of the daily transactions.”

See Attachment E 001.

165.       As noted elsewhere, this document, attachment E 001, acceptable to the Superior Court as proof of registration (See attachment S 001), was presented to Andal and rejected by him. Accordingly; no proper basis for impoundment existed and no debt exists. Absent a proper basis for impoundment, as a matter of law, any seizure, search or “inventory” of the vehicle, without express consent of the owner or operator, is illegal. No consent was given. Furthermore, absent a proper basis for impoundment, and required writings, a vehicle sale under these circumstances is an illegal conversion.

166.       Furthermore, the impoundment or seizure was unlawful and was an uncompensated “taking of plaintiff’s property” because the release requirements, set by state law and San Diego’s (SAN DIEGO POLICE DEPARTMENT PROCEDURE; 03/11/2010; 7.08 TRAFFIC; VEHICLE TOWING AND RELEASE PROCEDURES) own release “SDPD procedures”[11] presents an impossibility–which release requirements, according to San Diego, Anytime Towing must follow- and which is as follows:

            3.         Section 22651 (i) - the owner must furnish:

a)     Evidence of identity and a California address;

b)      Evidence that bail has been deposited for all parking violations issued against the vehicle or that all fines have been paid; and,

c)     Evidence of current registration.

San Diego represents that the terms current registration and valid registration are, interchangeable. Accordingly; item c) could not be met, under the circumstances, because of impossibility. A current or valid registration, as defined by San Diego, requires a smog inspection, and that requires possession of the vehicle.

167.       The impoundment of Plaintiff’s vehicle, as described, where its release is impossible, according to the written policy and procedures and definitions of the City of San Diego, and California Law is an unlawful seizure and an uncompensated taking of private property without due process of law.

168.       The City of San Diego, a public body, benefited from the taking of plaintiff's vehicle. Plaintiff was not compensated. This conduct on the part of the city of San Diego violates Article 5 of the United States Constitution and is a direct result of official policy of the City of San Diego that it knowingly, recklessly and wantonly adopted and implemented in violation of California Law; CA Veh. Code 12110(b).

169.       The City of San Diego is liable to the extent that it failed to train, educate and supervise its employees, Enriquez and his partner Andal. And in those failures San Diego allowed them to violate Article 4 and the 14^th Amendment of the United States Constitution, Federal law, California Law and City policy.

170.       Andal and Enriquez are reasonably aware of that seizing a vehicle where it is legally irretrievable, according to the SDPD Procedures and State Law is unreasonable and irrational. Andal is particularly aware because he recited release requirements that were impossible to meet. Andal and Enriquez -law enforcement officers- were or should have been aware of Miranda v. City of Cornelius, 429 F.3d 858; a widely published decision of the law of this circuit.

All Defendants;Violation of the California Constitution

171.       All prior paragraphs are incorporated herein.

172.       Article I, section 1 of the California Constitution provides: ‘All people are by nature free and independent and have inalienable rights. Among these are...and pursuing and obtaining safety, happiness, and privacy.’ This provision ‘creates a right of action against private as well as government entities.’ (See Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 20.” Kraslawsky v. Upper Deck 56 CA4 179). By seizing, searching and selling plaintiff’s vehicle under the circumstances described within the body of this complaint each defendant has violated the California Constitution by impinging upon his happiness and privacy.

173.       All of the forgoing conduct made plaintiff extremely unhappy, up until the present time.

City of San Diego; Violation of the United States Constitution and

State Vehicle Code 22852

174.       All prior paragraphs are incorporated herein.

175.       The Notice of Stored Vehicle, rubber-stamped May 15, 2010 was mailed May 17, 2010, 5 days after impoundment. No notice of the Right to a post-storage hearing was provided with said notice. See Attachment G 001. Timely receipt of Notice of Post Storage Hearing would not have mattered, because the vehicle could not be fetched from storage, due to San Diego’s interpretation of valid or current Registration.

176.       The vehicle was seized on May 12, 2010 at 730A.M. The Notice of Stored vehicle had to be given by May 14, 2010 at 730A.M. The City of San Diego failed to provide a Notice of Stored vehicle within the 48 hours provided by state law (22852 CVC) and in so doing deprived plaintiff of a constitutionally guaranteed right to the process of law. See Attachment G 001. For this denial, plaintiff is entitled to damages.

City Defendants; Violation of Section 1983 and 1985 Civil Rights Violation

177.       All prior paragraphs are incorporated herein.

178.       The City of San Diego is a person for Section 1983 and 1985 purposes. Andal and Enriquez are natural persons.

179.       Plaintiff has been categorized by the City of San Diego, and its uniformed geneticists (police officers, Andal and Enriquez), as black. On recollection, according to Andal, this racial categorization data exists in San Diego’s and the State’s database and that racial categorization of motorists, who are stopped, is a requirement of the San Diego Police Department.

180.       The conduct of the City of San Diego, and the Police department employees, that deprived plaintiff of his rights to property and the process of law as described in this complaint was, at least in part, the practice and custom of the City of San Diego and was directed against plaintiff and or the group to which he was assigned by Andal and/or Enriquez, as a result of his ethnicity, race and national origin and membership in a protected class or group, and as such violates 42 U.S.C. § 1983 and 42 U.S.C. § 1985.  This fact is borne out, in part, by the fact that despite six years without a valid contract, which contract could not have been extended because of its illegality and disproportionate adverse effect or disparate impact on protected groups, and despite receiving plaintiff's complaints, at its highest levels, beginning in August, 2010 through and September 2010 and beyond, including a formal complaint, the City of San Diego has failed to investigate and to report to plaintiff on the results of its investigation[12] of plaintiff’s dispute.

181.       This abject failure to act, as is required by law, exposes the hypocrisy of San Diego’s boastful representations and is also an indicator of the existence of a policy of ignoring complaints coming from protected groups or its members who fall victim to San Diego’s measurable discriminatory practices that have disparate impact on protected groups, in one or more of which plaintiff is a member. Given the number of complaints and San Diego's inaction, plaintiff alleges that there exists in the City of San Diego a policy of ignoring complaints against police officers and San Diego when those complaints come from persons that San Diego categorizes as members of minorities and who are disproportionately affected by San Diego’s discriminatory policies and practices.

182.       Furthermore; the conduct that is at the core of this complaint is the manifestation of the implementation and is in furtherance of the approved policy of the City Council of San Diego, formalized in a Towing Contract and program (with illegal components), the effects of which, when measured, targets minorities and the poor, and/or is one that has disproportionate impact on these protected groups. These facts are borne out by data that exists in San Diego’s database that San Diego refuses to disclose by falsely claiming that it does not exist and later reversing itself.

183.       In this implementation of discriminatory practice, San Diego is not exceptional; Attorney General Brown (now Governor Brown; again) conducted or authorized an investigation that disclosed similar results, from another Southern California City.

184.       San Diego has an affirmative duty to identify, train or re-train and discipline officers who practice racial profiling in the enforcement of Traffic laws. San Diego failed to meet this duty. San Diego, by policy and practice, avoids the identification of officers, by promising anonymity to officers who practice racial profiling.

185.       Defendant, City of San Diego, is liable for the acts of its officers as they have agreed with and or ratified the acts as demonstrated by San Diego’s promise of anonymity to Officers who may be practicing racial discrimination in the enforcement of traffic laws; a practice that is constitutionally infirm and declared illegal by the Supreme Court in Whren v. United States, supra, at p. 813 [135 L.Ed.2nd at p. 98]:

 “We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race.”

Civil Rights Action (42 U.S.C. § 1983 False Imprisonment against Defendants City of San Diego, Andal, Enriquez and Does 1-50)

186.       Plaintiff re-alleges all prior paragraphs of this complaint and incorporates the same herein by this reference.

187.       Defendants unlawfully detained Plaintiffs for an unreasonable period of time

after they knew or should have known that he had committed no crimes and after they were presented with a registration document that they were required to accept by law practice and procedure of the Superior Court; the forum of San Diego’s choice. The acceptability of said presentments is widely known. Immediately upon said presentment, plaintiff should have been allowed to proceed about his business. He was not. He was delayed for a period of more than 15 minutes and questioned as to the presence of Guns, Drugs and Nuclear weapons in his vehicle, and as to his occupation and place of employment and his vehicle was illegally seized. Plaintiff did not consent to his detention.

188.       False imprisonment is the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.

189.       The conduct of Defendants also amounts to oppression, fraud or malice within the meaning of California Civil Code § 3294 et seq. and punitive damages should be assessed against each defendant for the purpose of punishment and for the sake of example.

190.       As a result of Defendants’ actions, Plaintiff suffered damages in the amount to be proven at trial.

Civil Rights Action (42 U.S.C. § 1983) Malicious Prosecution against Defendants City of San Diego, Andal, Enriquez and Does 1-50)

191.       Plaintiff realleges all prior paragraphs of this complaint and incorporates the same herein by this reference.

192.       Defendants Savage, McClain, Sacco, Hernandez, Dobbs, Dodd intentionally and maliciously instituted a legal action against Plaintiffs without probable cause.

193.       The legal case against Plaintiffs was dismissed, resulting in the termination of the charges in his favour.

194.       Defendants acted with reckless disregard of the law and of the legal rights of

Plaintiff, in causing a legal proceeding to begin.

195.       Plaintiff were subjected to humiliation, fear, and pain and suffering by the illegal acts of Defendants and suffered injuries as a result of the Defendants’ actions.

196.       Plaintiff is entitled to compensatory damages, punitive damages, attorney’s fees under 42 U.S.C. § 1988, and all applicable law, and such additional relief as the Court deems just.

UNFAIR BUSINESS PRACTICES ACT

197.       All preceding paragraphs are incorporated here.

198.       California Business and professions Code Section 17200 States:  As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice.

199.       Section 17204 provides that "any person" may sue on behalf of "itself, its members, or on behalf of the general public." This phrase has been interpreted by the courts to authorize standing for any person or organization to file suit regardless of whether that person or organization suffered injury as a result of the alleged wrongful business practice. In addition, a Section 17200 claim that is based on a violation of another law -- an "unlawful" claim -- may lie even where no private right of action exists pursuant to the underlying law.

200.       The term "person" broadly is defined as "all natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons. San Diego and Anytime Towing are such persons as may be sued under Section 17200.

201.       San Diego constructed a fee schedule underpinned by a process that allowed it to reap fees that were greater than its actual costs of administering its towing program. CA Vehicle Code 12110(b) does not permit municipal towing programs to be used as money-making businesses.

202.       San Diego’s admission of its violation of CA Vehicle Code 12110(b) and Anytime Towing’s knowing-participation in that continued violation -after it learned of it, claims of compulsion notwithstanding- accordingly, are admitted unfair business practices. Persons who suffered losses, as a result, are entitled to recover to the full extent permitted by law. Plaintiff was directly affected and has suffered a loss as a direct result of defendants’ conduct, for which all defendants, as participants in this scheme, are strictly liable. Here disgorgement is one appropriate remedy. California law prohibits excessive towing and storage fees. Fees are excessive if they are more than what a towing or storage company charges under an agreement with a law enforcement agency, or more than the rate approved by the California Highway Patrol. Companies that charge excessive rates are civilly liable to the vehicle owner for four times the amount charged. Here, we begin with the fact that the fees charged by the law enforcement agency are excessive.

203.       Defendant City of San Diego maintains a custom, practice and actual or behavioral policy of disparate enforcement of traffic laws and has done so since at least 2001. Its May 2001 report and its analysis and report of Police Vehicle Stop Data in November 2002 showed a significant difference in stops between Black, Hispanic and White persons with Black and Hispanic persons being stopped more frequently than Whites. An example of San Diego’s published report follows:

Consistent Findings in 2000 and 2001

Several findings for 2001 are quite consistent with the previous year’s experience. In both years, about 2/3 of drivers stopped were male, and about 2/3 of stops resulted in citations. The primary reasons for the vast majority (97-98%) of vehicle stops in both years, as indicated on the forms, were moving traffic violations and vehicle equipment violations. Searches were conducted in 6-7% of vehicle stops, and 8-9% of searches resulted in contraband being found. In both years, 2% of vehicle stops resulted in arrests. Black/African American and Hispanic drivers continued to be over-represented in vehicle stops in 2001, in comparison to the driving age population of San Diego, and, once stopped, both of these groups were more likely to be searched than Asian/Pacific Islander or White drivers.

204.       Analysis of San Diego’s 2013 stop data reveals somewhat similar results. Blacks are stopped more than 3 times as frequently as Whites and Hispanics almost twice as often as Whites. A group that appears to be Pacific islanders is stopped almost 20 times as often as White Motorists, somewhat making amends for the lack of attention suffered by this group, in earlier years. San Diego is unwilling and unable to explain reasons for these differences and has repeatedly contradicted itself, through its Police officials who have deceived the San Diego City Council with falsehoods including claims that complete or reliable data is not available. Complete data has never been available using San Diego’s preferred data collection method. However, The City Council is aware that complete data is available or can be re-constituted in less than 24 hours. San Diego has refused or failed to re-constitute its Vehicle Stop data because that data will directly identify officers who indulge in racial profiling. San Diego has made a promise of anonymity, to all officers, regarding the evaluation of racial or ethnic data from Vehicle Stops.

205.       The foregoing is an indication of City of San Diego’s studied and deliberate ignorance to violations of law and of the existence of constitutionally infirm customs, practices and policies and the failure by San Diego to supervise police officers to prevent, deter and punish the unconstitutional acts; doubtless the result of the promise of anonymity.

206.       Defendant San Diego’s racial profiling conduct directly violates the 14^th Amendment and 14th Amendment and Calif. Const. Art I, §§ 7, 15, equal protection and due process), and the state and federal statutes and all involved officers are violating (18 U.S.C. §§ 241, 242; 42 U.S.C. 1983; P.C.§§ 422.6(a), 13519.4; and C.C. § 52.1)

207.       The Supreme Court itself, in Whren, specifically noted that; “We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race.” (Whren v. United States, supra, at p. 813 [135 L.Ed.2nd at p. 98].)

208.       Discrimination by law enforcement officers based upon a person’s race in the providing of both protective and non-protective services is a constitutional equal protection violation. (Ae Ja Elliot-Park v. Manglona (9th Cir. 2010) 592 F.3rd 1003.)

209.       If The City of San Diego, through its police officers, were enforcing traffic laws without discrimination, the stop rates for all racial or ethnic groups would have no significant differences. In 2013 the disparity widened from that reported in 2002 (which disparity had no explanation, back in November 2002.)    

210.       Such “racial profiling” is a Fourteenth Amendment “due process”

violation. (Ibid.; see also United States v.Ibarra (9th Cir. 2003) 345 F.3rd 711, 714.)

211.       This plaintiff was directly affected by the aforementioned unfair practices begun by San Diego and contributed to by the other defendants.

212.       This court must fashion an appropriate remedy.

CONSUMER INJURY

213.       All prior paragraphs are incorporated herein.

214.       The FCRA at § 603. Definitions; rules of construction [15 U.S.C. § 1681a]  states:

 (c) The term “consumer” means an individual.

215.       Since illegal amounts are not the result of action of law or legally fines, all persons who were made to pay or had illegal fees embedded in amounts charged to them and remitted to San Diego, are consumers within the meaning of consumer protection laws. San Diego is not only ill-equipped to cope or conform to Federal consumer financial laws; it is demonstrably hostile to those laws and consumers who would invoke them, on one occasion going so far as to falsify its records to impugn one of them. Consumers have suffered and will continue to suffer substantial injury as a result of Defendants’, violations of Section 5(a) of the FACT Act, FCRA and the FDCPA.

216.       Furthermore, defendants have been unjustly enriched as a result of their unlawful acts or practices. Illegal conduct is unfair, per se, and the conduct described herein violates California’s Unfair Business Practices law. Absent injunctive relief by this Court, Defendants are likely to continue to injure consumers, reap unjust enrichment, and harm the public interest. Plaintiff was directly affected and has suffered a loss as a direct result of defendants’ conduct.

THIS COURT'S POWER TO GRANT RELIEF

217.       All prior paragraphs are incorporated herein.

218.       This court is empowered to act to rectify all of the aforementioned illegal conduct and other conduct as mentioned below.

219.       Malice must be inferred from the conduct of the City of San Diego and Anytime Towing, in view of the contents of Attachments H, I, J, O, P and Q.

220.       Anytime Towing -due to the fact that it does not have a written contract and has not had a written contract since December 31, 2004 -and even if it did has repudiated such contract- (Attachments H, I, J, O, P and Q) ignoring common law and the Statute of Frauds, openly and notoriously, has exercised and assigned powers of sale that it knew and knows that it did not possess. See Attachment F 001. Accordingly; every sale of a vehicle resulting from a city-initiated tow, sold under the alleged though non-existent, power of sale, exercised by Anytime Towing or through assignment, is null and void. This court is empowered to nullify each sale effected by or through Anytime Towing as the result of a city-initiated tow since December 31, 2004, and plaintiff prays that said sales be nullified. In the alternative, all consumers and other affected persons must be compensated according to each vehicle’s appraised or retail value.

221.       Section 814(a) of the FDCPA, 15 U.S.C. 1692 1(a), empowers this Court to grant injunctive and such other relief as the Court may deem appropriate to halt and redress violations of any provision of law. The Court, in the exercise of its equitable jurisdiction, may award ancillary relief, including rescission or reformation of contracts, restitution, the refund of monies paid, and the disgorgement of ill-gotten monies, to prevent and remedy any violation of any provision of law.

222.       In addition to the preceding, all monies obtained by Anytime Towing and the City of San Diego, under the non-existent power of sale, are ill-gotten and must be returned to the vehicle owners; the harshness of the result of failing to meet legal requirements is unfortunate. But, as San Diego’s City Attorney observed in his Memorandum of law; Attachment J at page 7:

“Kastura,155 Cal. App. 4th at 109. The court acknowledged the apparent harshness of the result, but maintained that a city is without power to contract in violation of its charter. Therefore, a contractor performing work under an unauthorized contract is but a “mere volunteer” and cannot enforce the contract against the City. Id. at 1’1 1, citing Amelco Electric v. City of Thousand Oaks, 27 - Cal. 4th 228; 235 (2002).”

Doubtless, the same reasoning holds true for a vehicle tower or lien sale agent operating under powers derived from an unauthorized contract. The Unfair Business practices act requires disgorgement.

223.       All monies obtained by Anytime Towing and the City of San Diego, that are part of illegal “Referral fees” are ill-gotten, not the property or either, and must be returned to the vehicle owners.

COUNT I

DEFENDANT’S VIOLATIONS OF THE CLRA

CLRA Civil Code § 1780;

224.       Plaintiff re-alleges and incorporates by reference paragraphs 1 through 209.

225.       Civil Code § 1780(a) provides “Any consumer who suffers any damage as a result of the use of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any or all of the following:

(1) Actual damages.

(2) An order enjoining the methods, acts, or practices of all Defendants.

(3) Punitive damages.

(4) Any other relief that the court deems proper.

Wherefore, Plaintiffs demand damages and punitive damages for violations of the CLRA according to proof.

COUNT II

All defendants;Violation of

State Vehicle Code 3060.

226.       All prior paragraphs are incorporated herein.

227.       California VC 3060 provides that d) (1) Any person who improperly causes a vehicle to be towed or removed in order to create or acquire a lienhold interest enforceable under this chapter, or who violates subdivision (c), shall forfeit all claims for towing, removal, or storage, and shall be liable to the owner or lessee of the vehicle for the cost of removal, transportation, and storage, damages resulting from the towing, removal, transportation, or storage of the vehicle, attorney's fees, and court costs. Plaintiff’s vehicle was improperly impounded and removed through the actions of all defendants, and an illegal lienhold interest was created, at least in part, to provide illegal referral fees to San Diego. Accordingly; plaintiff is authorized to recover from all defendants as provided by California VC 3060.

Wherefore, Plaintiffs demand damages and costs for violations of California VC 3060,  according to proof.

COUNT III

DEFENDANT’S VIOLATIONS OF THE FDCPA and Rosenthal Act

228.       Plaintiff re-alleges and incorporates by reference paragraphs 1 through 213.

The FDCPA at § 813 provides that violators are liable to the violated as follows:

(1) any actual damage sustained by such person as a result of such failure;

(2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000;

The Rosenthal Act requires that violators be subjected to the liabilities imposed by the FDCPA. In this circuit penalties are cumulative.

Wherefore, Plaintiffs demand damages and punitive damages for violations of the FDCPA and Rosenthal act, according to proof.

COUNT IV

DEFENDANT’S VIOLATIONS OF THE FCRA

229.       Plaintiff re-alleges and incorporates by reference paragraphs 1 through 214.

The FCRA at § 616 provides for Civil liability for willful noncompliance:

(1) (A) any actual damages sustained by the consumer as a result of the failure or

damages of not less than $100 and not more than $1,000; or

(B) ……

(2) such amount of punitive damages as the court may allow; and

(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.

From the foregoing, all defendants’ conduct was knowing and willful. Wherefore, Plaintiffs demand all the available damages for willful violations of the FCRA, from each defendant, according to proof.

COUNT V

DEFENDANT’S CONVERSION OF PLAINTIFF’S

VEHICLE;

230.       Plaintiff re-alleges and incorporates by reference paragraphs 1 through 215.

231.       Since there is no basis for the impounding of plaintiff’s vehicle and since its retrieval was made impossible by the SDPD procedures rules and requirements of California law, its sale was an illegal conversion. Additionally, as a non-contract towing company Anytime Towing did not have the legal authority or writings to conduct a legal sale. Accordingly plaintiff is authorized to recover:

(1) Actual damages.

(2) An order enjoining the methods, acts, or practices of all defendants.

(3) Punitive damages.

(4) Any other relief that the court deems proper.

Wherefore, Plaintiffs demand damages and punitive damages for the illegal conversion or plaintiff’s vehicle, according to proof.

COUNT COUNT VI

DEFENDANT’S VIOLATIONS OF THE UNFAIR BUSINESS PRACTICES ACT

Civil Code § 17200;

232.       Plaintiff re-alleges and incorporates by reference paragraphs 1 through 217.

233.       Civil Code § 17200 provides for restitution and disgorgement for unfair business practices. Anytime Towing has asserted that it was compelled to remit illegal fees to San Diego and San Diego has admitted that those fees do not conform to CVC 12110(b). Anytime Towing has masqueraded as a contract-towing company, exercising powers that it did not have as described within the body of this complaint. All this it did while simultaneously knowing and asserting that it was not. Its conduct is unfair.

234.       San Diego knowing all of the preceding, and motivated, in part, by the knowledge that Anytime Towing’s non-contract status was the direct result of San Diego’s illegal conduct, allowed Anytime Towing to continue with the charade and pretense and assisted it with false assertions and declarations. This conduct on the part of San Diego is an unfair business practice.

235.       Accordingly plaintiff is authorized to recover:

(1) Restitution and disgorgement.

(2) An order enjoining the methods, acts, or practices of all defendants.

(3) Any other relief that the court deems proper.

Wherefore, Plaintiffs demand Restitution and disgorgement and any other relief that the court deems appropriate, for violations of the Unfair Business Practice Act CA. Civ. Code 17200, according to proof.

Negligence against All Defendants

236.       Plaintiff realleges all prior paragraphs of this complaint and incorporates the same herein by this reference.

237.       Defendants had a duty to Plaintiff to act with ordinary care and prudence so as not to cause harm or injury to another.

238.       By engaging in the acts alleged herein, Defendants City of San Diego, Andal and Enriquez failed to act with ordinary care and breached their duty of care owed to Plaintiff.

239.       The City of San Diego failed to act with ordinary care in failing to properly train and supervise its officers with respect to proper procedures on detention and the applicability of:

·        Temporary receipts, under California law, as are accepted in the forum of San Diego’s choice, and

·        The document acceptance procedures that are dictated by the CERTIFICATE OF CORRECTION requirements of that forum; See Attachment R001 and R002.

240.       As a direct, proximate and foreseeable result of defendants’ breach of their duty of care, Plaintiffs suffered damages in an amount according to proof at the time of trial.

California Civil Rights Violation (Section 52.1) against all City Defendants

241.       Plaintiffs reallege all prior paragraphs of this complaint and incorporate the same herein by this reference.

242.       Plaintiffs had a firmly established right to be free from threats, coercion and intimidation under the Fourth Amendment through the Fourteenth Amendment to the United States Constitution and the equivalent provisions of the California Constitution.

243.       The California Legislature has declared that it violates our state civil rights act for any person to interfere with the exercise or enjoyment by any individual of his rights secured by the United States Constitution or state or federal law. This includes any interference of these rights by threats, intimidation, coercion or attempted threats, intimidation or coercion.

244.       The Defendants interfered with Plaintiffs’ rights under the Fourth Amendment of the United States Constitution and the equivalent provisions of the state Constitution by the use coercion to obtain the keys to plaintiff’s vehicle under colour or law and by use of a “loud whisper” that plaintiff perceived as a threat when plaintiff asserted his free speech right to inform Andal that the Registration fees had been paid and that his action was illegal.

245.       This interference with Plaintiff’s rights was perpetrated by the Defendants in

violation of California Civil Code§ 52.1 and their right under the Fourth and Fourteenth Amendments to be free from excessive threats, intimidation or coercion under the Fourth Amendment and the Fourteenth Amendment to the United States Constitution and the California Constitution.

246.       Due to the violation of Plaintiffs’ rights by all Defendants, Plaintiffs suffered

economic damages and non-economic damages, including, but not limited to, emotional distress, pain and suffering, medical expenses and fear caused by the acts complained of herein according to proof at the time of trial.

247.       Plaintiffs are also entitled to the statutory civil penalties set forth in Civil Code§ 52.1, attorneys’ fees and costs of suit incurred herein.

248.       The conduct of Defendants also amounts to oppression, fraud or malice within the meaning of Civil Code Section 3294 et seq. and punitive damages should be assessed against each non-municipal defendant for the purpose of punishment and for the sake of example.

249.       Defendant City of San Diego is liable for the acts of its officers as they have agreed with and or ratified the acts.

INJUNCTIVE RELIEF

250.       Plaintiff realleges all prior paragraphs of this complaint and incorporate the same herein by this reference; particularly the paragraph that describes the anonymity enjoyed by SDPD officers on Vehicle Stop Ethnic/Racial analysis.

251.       Plaintiffs are informed and believe can demonstrate and thereon allege (City of Los Angeles v. Lyons 461 U.S. 95   03 S. Ct. 1660; 75 L. Ed. 2d 675; 51 U.S.L.W. 4424) that, unless enjoined, defendants will continue to engage in the unlawful acts and in the policies and practices, described above, that have persisted without abatement, for over 13 years, in violation of the legal and constitutional rights of the plaintiffs and others who are similarly situated.

252.       Plaintiff and others face the real and immediate threat of repeated and irreparable injury and continuing, present adverse effects as a result of the unlawful misconduct, policies and practices of the defendants. Plaintiff and others who are subjected to higher vehicle stop rates have no adequate and complete remedy at law. The remedy for improper police conduct is in the courts, not in private reprisal. (People v. Coffey, 67 A.C. 145, 162, fn. 18, 60 Cal. Rptr. 457, 430 P.2d 15; People v. Baca, 247 A.C.A. 560, 569, 55 Cal. Rptr. 681.)

PRAYER FOR RELIEF

253.       WHEREFORE, Plaintiff Richard Hylton, pursuant to the CLRA, FCRA, FDCPA, 15 U.S.C. 1692, The Rosenthal Act, the Unfair Business Practices Act, CA Vehicle Code 3060, California’s Constitution, the United States Constitution, and the Court's own equitable powers, requests that the Court:

254.       Enter a permanent injunction to prevent future violations of the FCRA by Defendants; Enter a permanent injunction to prevent future violations of the FDCPA by Defendants;

255.       Award such relief as the Court finds necessary to redress injury resulting from Defendants' violations of the FCRA, FACT Act and the FDCPA, and other laws mentioned in this prayer for relief, including but not limited to, declarative relief, rescission or reformation of contracts, the refund of monies paid, restitution, and the disgorgement of ill-gotten gains by Defendants; and;

·        Issue an immediate declaration or order that Anytime Towing is not a contract towing company and in the absence of a duly ratified contract or an extension approved by the City Attorney of the City of San Diego, all sales of vehicles, by Anytime Towing or its agents, that were the result of police tows, are null and void.

·        Award plaintiff the costs of bringing this action, as well as such other and additional relief as the Court may determine to be just and proper.

·        That the court maintain jurisdiction over this case until the ill-gotten gains are disgorged and damaged consumers are compensated to the court's satisfaction.

·        Since Anytime Towing and The City of San Diego have persistently and contumaciously maintained that valid contracts do exist in the face of all evidence to the contrary, and have undertaken actions to plaintiff’s detriment based on those falsehoods, their conduct is deserving of punitive action. Punitive damages must be awarded against Anytime Towing and The City of San Diego.

·        Since San Diego with cleverness and deceit, concocted a towing fee structure in which illegal fees were hidden so as to be virtually undetectable and despite its exposure for over 5 years, by the City Attorney, San Diego maintained its course of illegal action; it needs judicial supervision. This court can and should fashion some method where San Diego regularly reports and certifies the compliance of its operations with respect to fees that are ultimately paid by motorists that come in contact with its towing program. San Diego is used to making these types of certifications.

Plaintiff also prays that the violations of the FDCPA and the Rosenthal Act be cumulative, as is provided for by the law of this circuit.

The conduct of San Diego and Anytime Towing, particularly, but not limited to the hiding and scrubbing of hidden illegal fees, makes them public nuisances under the provisions of California Law; CA Civil Code §3479. This conduct has only been partially curbed or appears to be partially curbed, by new towing contracts and surface changes on the City Treasurer’s website.

Under the doctrine of unclean hands, the defendants, particularly San Diego, may not invoke the provisions of the California Vehicle Code while admitting (which admission they hid) that they have violated the California Vehicle Code themselves; government imprimatur notwithstanding.

DEMAND FOR JURY TRIAL

Plaintiff demands a jury trial.

Dated this 15th day of February, 2013

	/s/ Richard Hylton
	Richard Hylton 13166 Jane Court San Diego, CA 92129 858.484.6330 (Home) 858.444.5874 (Mobile)

Verification

I, Richard Hylton, declare:

I am the plaintiff in the within Complaint. I have written the within Complaint and have read it. The facts alleged in it are within my knowledge and these facts are true. I declare under the laws of the State of California that the foregoing is true and correct and that this verification was executed on February 10, 2014, at San Diego, California.

	/s/ Richard Hylton
	Richard Hylton 13166 Jane Court San Diego, CA 92129 858.484.6330 (Home) 858.444.5874 (Mobile)

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[1] Credit Reporting Agencies sell contact information, particularly Equifax.

[2] The San Diego City Attorney holds that persons who perform under un-authorized, i.e. month-to-month, contracts are volunteers. See Attachment J.

[3] Lacking an apt term, Hildred Pepper, the addressee of the MOL, used the term “arrangement”, in July 2011, in terminating the relationship between the City and Anytime Towing.

[4] In its Second Amended Complaint, at paragraph 22, Anytime Towing claimed to be aware of the contents of the City Attorney’s letter, “on or about April 4, 2013.” See Attachment O 005, Line 14.

[5] Anytime Towing, calls this a “value for auction purposes.”

[6] Emphasis added

[7] “Deliberate misrepresentation for ulterior purposes.” Here < $59.00 in illegal referral fees to San Diego and income for Anytime Towing.

[8] Blackwhite:  claiming a state, condition or meaning, in contradiction of the plain facts or accepted meaning.

[9] Anytime Towing used the word complaint to describe plaintiff’s letter of dispute.

[10] v.      POLICE TOWS

A.                     Police tows may be generated for a variety of reasons. Many of these tows fall under a cost recovery program. The tow companies are responsible for the collection of fees that offset the City's costs for impounding vehicles of negligent owners/operators. Additionally, a $72.00 fee will be collected in cases of impounds for 14602.6, 14607.6,22651 (h) (1) and (h) (2), and 22651 (P) CVC.

[11] SAN DIEGO POLICE DEPARTMENT PROCEDURE; 03/11/2010; 7.08 TRAFFIC; VEHICLE TOWING AND RELEASE PROCEDURES

[12] A Public records request (PRA) 2013-338 Hylton, disclosed that a San Diego  investigation disclosed that San Diego determined the following:

Thank you Linda, very helpful!

The vehicle code is part of the problem with this pro per Plaintiff because if continually mentions, “pay registration fees” as the only listed item to renewing vehicle registration.

Joseph L. Allen
Deputy City Attorney, Civil Division

San Diego did not bother to report on the above.