Sohigan v. City of Oakland

Filed 3/24/06 Sohigan v. City of Oakland CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Here we consider for the second time the City of Oakland's ordinance authorizing forfeiture of cars used in soliciting prostitution or purchasing controlled substances. We previously concluded the ordinance was not preempted by state law in Horton v. City of Oakland (2000) 82 Cal.App.4th 580 (Horton). In the current appeal, Aram Sohigian and Sam and Carolyn Horton renew the preemption question and raise additional challenges to the forfeiture law. We decline to reconsider the preemption question. We conclude appellants adequately alleged Excessive Fines Clause violations, but appellants' claims regarding a right to a prompt post-seizure hearing are now moot. We reverse in part and remand for further proceedings.

BACKGROUND

Oakland Municipal Code, Ordinance 9.56 (the Ordinance) was enacted in 1997. It authorizes the seizure, forfeiture and sale of vehicles used to solicit prostitution, purchase drugs or in an attempt of either offense. (Oak. Mun. Code, § 9.56.010; Horton, supra, 82 Cal.App.4th at p. 584.)

Appellants sued the City of Oakland (the City) as taxpayers under Code of Civil Procedure section 526a. They challenged the constitutionality of the Ordinance on its face and as applied. The City's demurrer to the first amended complaint was sustained with leave to amend as to four causes of action challenging the Ordinance as unconstitutional in its application. The demurrer to all other causes of action was sustained without leave to amend. Appellants filed no amendment and appealed the resulting judgment entered in favor of the City.

We granted appellants' request to submit supplemental briefs on the preemption issue and the continued viability of Horton in light of the recent Supreme Court decision in American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239.^[1] We also permitted the parties to brief potential procedural barriers to addressing the preemption issue on the merits. We turn first to those threshold issues.^[2]

ANALYSIS

I. Preemption

The City argues appellants are collaterally estopped from relitigating preemption because Horton resolved that issue. Appellants counter that collateral estoppel does not apply because neither Carolyn Horton nor Aram Sohigian was a party, or in privity with a party, in Horton.^[3] Appellants are incorrect.

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