SEC. 41.71. GANG-RELATED NUISANCE VEHICLE FORFEITURE. (2022)

SEC. 41.71. GANG-RELATED NUISANCE VEHICLE FORFEITURE.

(Added by Ord. No. 180,465, Eff. 2/8/09.)

(a)Definitions. As used in this section:

(1)"Gang Injunction" means a court order, in the form of a preliminary or permanent injunction, issued against an identified criminal street gang as an unincorporated association or organization, the provisions of which seek to enjoin the gang's nuisance activities in a delineated geographic area known as the "Safety Zone".

(2)"Gang Member" means a member of a "criminal street gang" as that term is defined in Penal Code section 186.22, subdivision (t).

(3)"Legal Owner" means the "legal owner" of a vehicle as defined in Vehicle Code section 370.

(4)"Registered Owner" means the "registered owner" of a vehicle as defined in Vehicle Code section 505.

(5)"Safety Zone" means a geographic area delineated in any gang injunction within which a gang's nuisance activities are to be enjoined.

(6)"Vehicle" means any transportation device that would require a driver of the vehicle to have in his or her immediate possession a valid driver's license for the appropriate class of vehicle.

(b)Circumstances in Which Vehicle Becomes Nuisance Subject to Seizure and Forfeiture. A vehicle used in any of the following circumstances is a nuisance that shall be enjoined and abated as provided in this section:

(1)Any vehicle used within the City by one or more gang members for the purpose of the commission of any of the offenses listed in Penal Code section 186.22, subdivision (e), except for the offenses listed in subdivision (e)(4) (relating to the sale, transportation and manufacture of controlled substances).

(2)Any vehicle used within a Safety Zone in which a gang member who is subject to and has notice of the Gang Injunction is:

(A)Present with another known gang member in violation of the Gang Injunction; or

(B)Present and in actual or constructive possession of graffiti tools in violation of the Gang Injunction; or

(C)Present and transporting, concealing, or storing a firearm or any ammunition, the possession of which would be a violation of the Gang Injunction.

(c)Title to Vest in the City. All right, title and interest in any vehicle used in any of the circumstances described in subsection (b) shall vest in the City upon commission of the act giving rise to the nuisance.

(d)Seizure of Vehicle.

(1)A peace officer may seize a vehicle for forfeiture upon the issuance of an order by a court having jurisdiction of the vehicle.

(A)The seizure is incident to an arrest or a search conducted pursuant to a search warrant; or

(B)There is probable cause to believe that the vehicle is being used in any of the circumstances described in subsection (b).

(3)A peace officer seizing a vehicle under this section shall complete a vehicle report and deliver it to the person from whose possession the vehicle was seized.

(e)Post-Seizure Investigation and Notice to Registered and Legal Owners.

(1)Upon seizure of a vehicle under this section, the seizing agency shall immediately conduct an investigation as to any registered owner and any legal owner of record with the Department of Motor Vehicles of this or any other state or appropriate federal agency.

(2)If the agency finds that any person is the registered or legal owner, and that such ownership or interest did not arise subsequent to the date and time of seizure of the vehicle or notification of the forfeiture proceedings, the agency shall send the following to each such person at his, her, or its address, as it appears in the records of the Department of Motor Vehicles of this or any other state or any appropriate federal agency, within three (3) business days of the vehicle's seizure:

(A)A Notice of Seizure, which shall include the name, address and telephone number of the agency providing the notice as well as the authority and reason for the seizure; and

(B)Information about the availability of a post-seizure hearing, which shall include a statement that in order to receive a post-seizure hearing, the owner, or his or her attorney or agent, must request the hearing in person, or in writing, or by telephone within ten (10) calendar days of the date of the Notice; and

(C)Information about how to file a claim, which shall include the time in which a claim of interest in the vehicle seized or subject to forfeiture is required to be filed; and

(D)A claim form.

(f)Post-Seizure Hearing.

(1)When requested, the post-seizure hearing shall be. conducted within three (3) business days of the seizing agency's receipt of the request for such a hearing. The agency may authorize its own officer or employee to conduct the hearing as long as the hearing officer is not the same person who seized or directed the seizure of the vehicle. The hearing also may be conducted by a City Attorney hearing officer designated to conduct such hearings.

(2)The vehicle shall be retained upon a determination of probable cause that the vehicle was used in one or more of the circumstances described in subsection (b).

(3)Failure of either the registered owner or legal owner, or his or her attorney or agent, to request or attend a scheduled post-seizure hearing within the appropriate time frame shall satisfy any post-seizure hearing requirement.

(4)Notwithstanding a determination of probable cause, the hearing officer has the authority and discretion to direct return of the vehicle to the registered owner pending further action under this section, upon payment of towing, storage and release charges, if the hearing officer is satisfied, considering all reliable and available information, that:

(A)The registered owner is not a gang member; and

(B)The registered owner was not operating or present in or around the vehicle at the time of the violation resulting in its seizure; and

(C)The registered owner did not authorize or negligently permit the vehicle to be used in one or more of the circumstances described in subsection (b); and

(D)The vehicle was not previously seized, impounded, or reportedly used in furtherance of any criminal activity while in the possession or control of the registered owner; and

(E)The registered owner relies upon the vehicle for legitimate transportation purposes.

(1)If the City Attorney determines that the factual circumstances described in subsection (b) warrant forfeiture of the vehicle, the City Attorney shall serve a Notice of Intended Forfeiture upon any person who has an interest in the seized vehicle as determined pursuant to subsection (e). The Notice shall be served as soon as practicable, but in any event within thirty (30) calendar days of the seizure of the vehicle subject to forfeiture.

(2)The Notice of Intended Forfeiture shall be served by personal delivery, or by certified mail return receipt requested, to the address on record with the Department of Motor Vehicles, or any other address a person entitled to receive service under subsection (e) designates in writing to the City Attorney.

(3)In the event that a person entitled to service under this section cannot be personally served, or the certified return receipt is not received by the City Attorney within ten (10) business days of mailing, substitute service may be accomplished by either of the following methods:

(A)By leaving a copy of the Notice at the address on record with the Department of Motor Vehicles and any other address a person entitled to receive service under subsection (e) designates in writing to the City Attorney, and by mailing a copy to the recipient at the address where the copy was left and any other address designated in writing to the City Attorney; or

(B)By first class mail, if the person entitled to service resides out of state.

(4)Service of the Notice of Intended Forfeiture shall be deemed complete if the recipient acknowledges receipt of the Notice verbally or in writing, or the certified return receipt is received by the City Attorney, or upon completion of personal or substitute service.

(h)Filing of Claims Opposing Forfeiture and Court Proceedings Thereon.

(1)A person claiming an interest in a vehicle seized pursuant to subsection (d) must, within ten (10) calendar days from the date of personal service or mailing of the Notice of the Intended Forfeiture, file with the Superior Court of the County of Los Angeles a Claim Opposing Forfeiture, verified in accordance with Code of Civil Procedure section 446. The Claim shall describe the person's interest in the vehicle. A copy of the Claim shall be served upon the City Attorney.

(2)If a verified Claim is filed in accordance with this section, the forfeiture proceeding shall be set for hearing within thirty (30) calendar days from the date the Claim is filed with the court.

(3)The City Attorney shall file a Petition for Forfeiture within ten (10) calendar days of being served with the Claim. The Petition for Forfeiture shall identify the vehicle to be forfeited, state the date and place of the seizure, describe the factual and legal basis for the forfeiture, and state the estimated value of the vehicle.

(4)All discovery shall be completed on or before the fifth calendar day before the hearing date, which date may be extended in the court's discretion.

(5)The hearing shall be before the Superior Court of the County of Los Angeles. The provisions of the Code of Civil Procedure shall apply to such proceedings unless otherwise inconsistent with the provisions or, procedures set forth in this section. A proceeding under this subsection is a summary proceeding and there shall be no joinder of actions, coordination of actions, or cross-complaints. The issues to be determined shall be limited strictly to those related to this section. Trial shall be by court or jury.

(i)Contested Forfeiture of Vehicle.

(1)Where forfeiture pursuant to this section is contested, the City Attorney shall have the burden of proving by a preponderance of the evidence that the vehicle was used in one or more of the circumstances described in subsection (b).

(2)Upon proof that the vehicle was used in any of the circumstances described in subsection (b), the court shall:

(A)Declare the vehicle a nuisance; and

(B)Order that the vehicle be forfeited and sold, and that the proceeds from the sale be distributed in accordance with subsection (n); or

(C)If the vehicle was returned to the registered owner pursuant to subsection (f)(4), that it be seized, forfeited and sold, and that the proceeds from the sale be distributed in accordance with subsection (n).

(j)Return to Innocent Owner. Notwithstanding that a vehicle seized under this section may have been used in one or more of the circumstances described in subsection (b), the vehicle shall not be subject to forfeiture and shall be returned to the registered owner, upon payment of towing, storage and release charges, if the registered owner establishes by a preponderance of the evidence that all of the following circumstances exist:

(1)The registered owner was not operating or present in or around the vehicle at the time of the violation resulting in its seizure; and

(3)The registered owner was not negligent in allowing the vehicle to be used in one or more of the circumstances described in subsection (b).

(k)Detention In Lieu of Forfeiture.

(1)Notwithstanding that a vehicle seized under this section may have been used in one or more of the circumstances described in subsection (b), the court may, in lieu of forfeiture, order that the vehicle be detained for a period of not less than thirty (30) days and not more than one-hundred-twenty (120) days, if the court finds by a preponderance of the evidence that:

(A)The vehicle is the only vehicle available to members of the registered owner's household; and

(B)Forfeiture of the vehicle would cause significant hardship to a household member who relies upon the vehicle for transportation for legitimate purposes; and

(C)If released to the registered owner, the vehicle is unlikely to be used in further violation of this section in the future.

(2)If the court orders the vehicle detained pursuant to this subsection, the registered owner may reclaim the vehicle upon expiration of the detention period and payment of tow, storage and release charges.

(l)Stolen Vehicles. A vehicle that has been reported stolen prior to its seizure under this section shall not be subject to forfeiture under this section, unless the identity of the registered owner cannot be reasonably ascertained, or the registered owner fails to redeem the vehicle within sixty (60) days of the seizure. The registered owner of the vehicle may claim the vehicle, upon payment of tow, storage and release charges, provided the vehicle is not subject to any holds for traffic or parking violations and the vehicle registration is current.

(m)Uncontested Forfeiture of Vehicle.

(1)Where forfeiture pursuant to this section is not contested, the City Attorney shall have the authority to declare the vehicle forfeited under this section.

(2)If no Claims are timely filed, the City Attorney shall prepare a written Declaration of Forfeiture of the vehicle to the City. A written Declaration of Forfeiture signed by the City Attorney or his duly authorized designee shall be deemed to vest good and sufficient title to the forfeited vehicle in the City. The proceeds from the disposal of the vehicle declared forfeited by the City Attorney shall be distributed in accordance with subsection (n)(1). The City Attorney shall mail or otherwise provide a copy of the Declaration of Forfeiture to any person who received notice of the forfeiture proceedings pursuant to this section.

(n)Disposal of Vehicle and Distribution of Proceeds.

(1)In any case in which a vehicle seized pursuant to this section is forfeited to the City, the vehicle shall be sold, unless a settlement is reached with the registered owner of the vehicle. All proceeds from the sale, or if cash is paid as settlement in lieu of forfeiture of the vehicle, shall be distributed and appropriated in the order of priority listed below:

(A)To pay costs associated with the towing, storage and release of the vehicle; and then

(B)To pay costs associated with the sale of the vehicle; and then

(C)To the legal owner of the vehicle, if any, up to the amount of the legal owner's interest in the vehicle; and then

(D)To the City's general fund.

(2)In a contested forfeiture proceeding pursuant to subsection (i), the court may make a different distribution of the proceeds in the interest of justice, including a distribution to a person or entity other than a registered or legal owner of the vehicle who can prove by clear and convincing evidence an interest in the vehicle, up to the amount of that person's provable interest, but only if such person or entity has provided the court with proof of his, her, or its claimed interest before the court makes a final disposition regarding the vehicle.

(3)For budgeting purposes, funds attributable to this ordinance shall not be considered anticipated revenue to the general fund.

(o)Recovery of Monetary Loss. Nothing in this section shall preclude a vehicle owner or lienholder who suffers a monetary loss from the forfeiture of a vehicle under this section from recovering the amount of the actual monetary loss from the person or persons who committed the act giving rise to the forfeiture.

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