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COURT OF APPEAL, FOURTH APPELLATE DISTRICT - page 26 / 29

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apparent that the lien sale preparation fee is a charge that may be added to the possessory lien under specified conditions; the fee allows the lienholder to recoup some of its costs of selling the vehicle to satisfy the lien for unpaid towing and service charges.  The fee is imposed at the lienholder's election; absent inclusion of the fee, there is no reason the lienholder cannot move forward with its lien sale.  Concededly, tow companies may eventually recoup the "prices" they charge for towing and storage services through lien sales, but section 22851.12 does not regulate the lien sale itself, it only imposes limitations and conditions on the lienholder's ability to recoup costs associated with preparing for the lien sale.

In Mendonca, supra, 152 F.3d 1184, the Ninth Circuit undertook to decide whether California's Prevailing Wage Law (the CPWL) was preempted by the FAAAA's general preemption provision.  The plaintiff, a group of public works trucking contractors, argued that the FAAAA preempted the CPWL because it "increases its prices by 25 [percent], causes it to utilize independent owner-operators, and compels it to re-direct and re-route equipment to compensate for lost revenue."  (Mendonca, 152 F.3d at p. 1189.)  It sought to show its rates for "services" were based on costs, performance factors and conditions including prevailing wage requirements.  (Ibid.)

The court rejected these arguments.  In doing so, it reviewed the Legislative history of the FAAAA.  It explained Congress believed that across-the-board deregulation was necessary to eliminate non-uniform state regulations of motor carriers which had caused " 'significant inefficiencies, increased costs, reduction of competition,

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