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COURT OF APPEAL, FOURTH APPELLATE DISTRICT - page 10 / 29

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As we explain, we reject plaintiff's contention that section 22658, subdivision (i)(2) falls within the safety exception, but agree it is saved from preemption under the nonconsensual towing exception.

1.  The Safety Exception (49 U.S.C. § 14501(c)(2)(A))

In Servantes, supra, 86 Cal.App.4th 1081, the First Appellate District, Division Five Court of Appeal addressed the FAAAA's preemption over section 22658's regulatory scheme for removal of vehicles from private property by towing services and concluded certain regulations fell within the FAAAA's safety exception.  (Servantes, at pp. 1092, 1095.)  There, the defendant was found in the lower court to have committed hundreds of violations of state and local laws by his towing practices, including by imposing excessive towing and storage fees under section 22658, subdivision (i).  (Servantes, at pp. 1083-1084.)  The defendant's principal defense at trial and on appeal was that the regulations governing towing operations were preempted by federal law.  (Id. at p. 1087.)

The Court of Appeal observed there was little question that a towing company qualifies as a "motor carrier" under the FAAAA, and, citing federal authorities in accord, that Congress's intention to preempt state and local regulation of towing services generally was evidenced by its limited exception for nonconsensual towing services, as it would otherwise have had no need to include such an exception.  (Servantes, supra, 86 Cal.App.4th at p. 1088, citing R. Mayer of Atlanta, Inc. v. City of Atlanta (11th Cir. 1998) 158 F.3d 538, 543, revd. on other grounds in City of Columbus, supra, 536 U.S. 424; Ace

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