Your Legal Rights Explained
The law provides several avenues for vehicle owners to recoup their losses from a towing company. The salient statutes are California Vehicle Code sections 1068 through 1083. Section 1069 and related rules govern the typical claims for damages to vehicles caused by the negligence of the operator of a towing company. Section 1070 and related rules govern stolen and damaged personal items.
The problem of missing property is particularly significant with tow-away zones, because those areas are often set aside for use by an adjacent business. When persons direct vehicle owners to park in certain areas or provide parking lot passes, this creates a property right with two owners: (1) the land owner or possessor , and (2) the guests permitted by the owner or possessor to use the property. In that situation, both owners must be given notice before a vehicle is towed from the property.
The issue of proper notice is of particular importance, as towing companies must provide sufficient notice of the intended towing, in addition to the towing protocol provided in California Vehicle Code section 22658. Proper notice means the property has posted signs warning about unauthorized vehicles being towed away and where the property is located. Notices should contain crucial information about the property and the rights of the vehicle owner. The form of the notices might be as important as the content because courts generally enforce the letter of the law and the precise word choice may matter.
Reasons Your Stuff Could be Gone
Some of the more common causes of such loss include:
negligent handling of your vehicle by the towing company, causing that company to break your side mirrors or suffer some other damage to your property;
simple loss due to negligence in inventory procedures, whereby the towing company improperly maintains records of which property was present before accepting possession and which property is present after the towing company has performed its job;
theft by the towing company’s employees; and
theft of unremoved property by a third-party, such as a thief who has accessed your property while it was in the custody of the unauthorized person or a dishonest worker at the towing company.
Such thefts or loss are all too common contemporaneously with the normal problem of handling a vehicle carelessly, incurring or failing to repair damage and then dishonestly pointing the finger at the car owner.
Burden of Proof
In considering a lawsuit against a towing company, the most important factor becomes whether you are in fact able to prove your case. This includes proving that property was left in your vehicle, and ultimately proving that the property’s value is what you claim. The burden or responsible to prove the facts of your case is always on the person bringing the lawsuit. It is crucial to establish what was on the property. This inquiry includes both proof of what items were left behind, as well as establishing their value. The most common place to quickly find this type of information is by looking in the photos of the vehicle or items taken by the towing company. Most towing companies will routinely photograph the inside of a vehicle (as well as the outside) before moving it. If such a picture exists, this photo can be used to help show what was left in the car and to help show the value of those items. In the majority of cases the people seeking to bring a lawsuit do not have the original images of the car, and often do not even have photos of their car left after the vehicle was towed by the company. The value of some items might be easy to determine if you had saved receipts or anything else to prove the value. Often other items such as clothing, sunglasses, jewelry, and similar items that are not unique will be more difficult. In addition to showing what was left in the vehicle, it is often important to have a witness who can confirm the facts you are attempting to prove. For example a witness may be the passenger in the car at the time the vehicle was taken. They may be your mother or friend who packed the car immediately before the vehicle was towed. They may have been the last person to see items placed in the car. It is easy to see how a witness may play a crucial role in helping to prove your case.
Lawsuit Procedure
If your car has been towed and items are missing, and you have exhausted all available resolutions, the next best option would be to seek redress in small claims court. In order to file a lawsuit against a towing company, you will need to prepare the following documentation:
- Copies of drivers licenses (your license and any other individuals who had items of value in the car)
- Copy of vehicle invoice with billing details (how much your vehicle was towed for, including breakdown of all extra charges; storage fees and any accessories or add-ons the towing company provided)
- Copy of the towing company contract
- Copy of the police report
- Copy of any contracts with your insurance company
- Certified letter sent to the towing company requesting either reimbursement for the missing property, or compensation for the damages sustained to the property while it was in the possession of the towing company.
The certified letter is crucial—sending the letter to the towing company, with the intent of having the items returned or being compensated for damages, will ensure that the towing company is put in the loop and made aware that there is an issue. If necessary, the letter can also serve as proof of wrongdoing in the court of law.
Once you have gathered the above-mentioned documentation and sent the towing company a certified letter, we recommend contacting an attorney that specializes in property loss or theft. They will be able to guide you on the next steps in successfully proceeding with your lawsuit, and provide you with valuable legal support and advice throughout the process.
When pursuing a case in small claims court, there is no jury. A judge will hear your case and make a decision based on the evidence presented. A jury trial may be appropriate if there is sufficient evidence to warrant a trial, at the discretion of the judge.
Your court date is typically 4 to 6 weeks after you have filed your paperwork. In most cases, you will be required to give both the judge and the defense attorneys in the case an advance notice of the type of evidence that you have, and the witnesses that you plan to call in order to substantiate your claim.
The day before your court date, visit the courtroom where your case is to be heard. This will help you to become familiar with the courtroom and the layout. If you need to bring certain evidence with you, be sure that you do this beforehand. Also, be sure that you arrive early on your court date so that you are able to review your evidence one last time before presenting it to the judge.
Possible Results and Money
Once you’ve proven your case, a few possible outcomes can occur:
A. Settlement: The towing company and their insurance company may be amenable to settling the case early, before trial (which usually occurs only about 5% of the time in my experience). Generally, they will want you to sign an agreement where you agree that you will never sue them for anything in the future.
B. Jury Verdict: If the case is not settled, then you will have a trial where a jury will consider your evidence and reach their verdict. The jury will be the sole determinator of damages. In some cases, it may also be the judge, in a "bench trial," if the parties agree to let the judge decide the case rather than a jury.
The types of damages awarded in these cases can include:
• Return of stolen items with loss of use compensation,
• Compensation for value of the property, plus compensation for loss of enjoyment of the personal property,
• Compensation for diminished value or cost of replacement of the personal property
• Compensation for loss of use of the facility or land where the items were stored (i . e. the yard or parking lot managed by the towing company),
• Compensation for lost rents or profits incurred during the unlawful impoundment period if the personal property was rented out,
• Attendant costs incurred in obtaining replacement property or securing the return of the items from the unlawful impoundment, such as costs associated with litigation or repossession,
• Damages for loss of enjoyment of the personal property such as loss of commercial use, including the value of the lost business revenue,
• Damages for physical damage to impounded items, including repair or replacement costs,
• Emotional Distress damages resulting from the injury to the plaintiff,
• Punitive damages, in circumstances where the defendant acted with the requisite intent necessary to impose punitive damages.
Getting an Attorney – When It’s Needed
Choosing the Right Legal Representation
There are certain situations in which it is beneficial to have a lawyer handle the lawsuit against the towing company. The facts of your case will dictate whether you need an attorney and whether you should hire one.
In some cases, the towing company will attempt to make it difficult for you to get access to your property. If you suspect that this is the situation, we recommend that you get legal representation as soon as possible, so that your attorney can take steps to prevent evidence from being destroyed. You should also contact an attorney if evidence of damage or missing items has already been destroyed or if the majority of your items that were in the vehicle have been damaged or stolen. Hiring an attorney may also be your best option in a case where there are a lot of damages and you are unsure exactly how much compensation to pursue. It’s natural to want to recover the maximum amount to cover repairs and other costs, but an attorney can advise you regarding the appropriate amount to seek and the likelihood that it will be awarded. In some states, there are caps on both the amount an attorney can receive on a "contingent" (or percentage of the recovery) basis, as well as on the amount of damages a judge is allowed to award. In those cases, having an attorney on your side will help ensure that you max out on the amount you can recover. An attorney can also provide value in any case in which multiple laws or regulations may have been violated. In such complicated cases, you need a knowledgeable advocate who can navigate the matter through the justice system, particularly as laws change rapidly in the filing of these kinds of lawsuits. The cost of hiring an attorney may or may not be paid in advance, depending on your agreement with him or her. If you have decided to sue the towing company for property damages or theft, the lawyer may agree to accept a part of his or her payment from the proceeds of the suit. This is known as a "contingent fee" arrangement. An attorney who works under this arrangement gets paid only if you win, and the fee is typically a percentage of the amount awarded. The fee will usually fall in between 25% and 35%, but can be higher for smaller lawsuits because of varying overhead costs.
Alternative Ways to Settle
In most states, if you are a victim of theft, can you sue in small claims court and receive money damages? Most state courts would answer yes. And, if the company were a towing company, then can you sue the towing company for emotional distress as well, even if there was no physical injury? Most state courts would answer yes. See Pahl v. Twombly, 130 Wash. 2d 259 (1996). But the question is whether suing is worth it, especially because many towing companies carry so little insurance that recovering anything meaningful from them is unlikely. And, furthermore, do you really want to relive the trauma if it wasn’t that bad – after all, you can get the "missing" items back, right? Even if some are damaged or broken? Is that worth the trouble of putting a bunch of effort into suing?
There are ways to avoid the litigation altogether. One way of resolving the dispute is to contact the Automobile Club’s Resolution Center . They deal with matters relating to the theft of property and ticket violations. They have lawyers they can employ to assist you in lawsuits. Another option is to mediate the issue. Mediation is fairly common in disputes between average people and auto body shops as the mediation process might aid in ‘resolving the concern at issue before it reaches the court level." Mediation entails, "a confidential process whereby a neutral third party (the mediator) actively assists the parties or their representatives in their attempts to resolve the dispute." Sometimes, resorting to mediation is a good way to resolve the matter without going to court. Once the dispute is mediated, the next – and most likely last – step is drafting a settlement agreement between the parties. A sample settlement agreement should contain the following key sections: Heading and Statement of Purpose; Definitions; Settlement Agreement; Payment; and Governing Law. In other words, hit the ground running.