Orange County Toll Road Operator Wants Class Action Dismissed

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The operators of the Orange County, California toll road system have filed a motion to dismiss a proposed class action lawsuit filed by drivers who say the Transportation Corridor Agency (TCA) imposes exorbitant and unconstitutional toll road fines without due process or proper recourse to contest violations.

Foothill/Eastern Transportation Corridor Agency and San Joaquin Hill Transportation Corridor Agency (collectively the TCA or The Toll Roads), presented several arguments against the plaintiffs’ case, stating that the toll road commuters have ample opportunity to dispute toll road fines.

Specifically, the TCA challenges lead plaintiff Penny Davidi Borsuk’s claim that she did not receive proper or adequate notification of her toll road fines, stating that Borsuk was provided multiple notices on numerous occasions over several months alerting her to the violations.

“Instead of paying the required toll, the subsequently incurred civil penalty, or availing herself of the administrative or judicial process for contesting the violation or penalty, plaintiff filed this action alleging, among other things, that the California Vehicle Code under which TCA operates is unconstitutional on its face and as-applied,” TCA stated in the dismissal motion. “These claims, however, are contradicted by the plain language of the Vehicle Code, TCA’s established procedures and practices, the controlling caselaw, and the undisputed facts, as demonstrated by the notices that TCA sent to plaintiff.”

In February 2016, Borsuk initiated a class action lawsuit against TCA, accusing the toll road operator of creating a system that forces drivers to pay “concealed and unconscionable” fines though its cashless toll payment system, violating consumer laws and adequate administrative or judicial process under the U.S. and California constitutions for contesting the toll road penalty.

Borsuk also claims that The Toll Road’s payment collection system (known as FasTrack) has caused “mass confusion and outrage” from toll road drivers who do not have a pre-arranged account. Toll road drivers must remember to go online to a designated website and pay the toll fee within a 48-hour period, which requires manual entering in of entry and exit information.

If they fail to do so, instead of receiving a courtesy notice or bill from TCA, the toll road operator automatically issues the driver fines and penalties, sometimes even issuing a registration lien on the driver’s vehicle until the toll road fines are paid, Borsuk alleges. According to the lawsuit, this process generates billions of dollars in revenue for the toll road.

TCA contradicts these allegations, citing that Vehicle Code ordinances provide multiple levels of review for toll road violators, which Borsuk failed to pursue. According to the TCA, Borsuk’s complaint should be barred by the constitutionality set forth already in the Vehicle Code provisions.

Additionally, The Toll Roads argues that violators have several “meaningful” opportunities to dispute or appeal any fines imposed on them, stating that the violation notices provide a “clear and concise” explanation of the procedures for contesting the violation.

“Furthermore, plaintiff alleges in the complaint that toll violators are only potentially denied the opportunity to contest toll violation amounts if the toll violator fails to respond within the time periods set forth in the notice of violation or notice of delinquent violation,” TCA argued. “It therefore follows that, if a toll violator does comply with the procedures set forth in the notice of violation or notice of delinquent violation, toll violators have an adequate opportunity to contest toll violation amounts.”

TCA also contends that the amount of toll road fines are not unreasonable, challenging Borsuk’s allegations that the fines imposed by TCA were “enormous.” According to TCA, the maximum amount for a delinquent toll road fine or penalty is $100 per violation.

“This falls well below the statutory maximum, as the Vehicle Code authorizes the imposition of up to $500 per violation for multiple violations during a 12-month period,” TCA said. “Thus, the penalty is not grossly disproportionate.”

Based on these arguments, and more contentions TCA cites in the 36-page dismissal motion, Borsuk’s complaints lack standing and should be dismissed without leave to amend

Borsuk is represented by Blake J. Lindemann of Lindemann Law Firm.

The TCA Toll Road Fines Class Action Lawsuit is Borsuk, et al. v. The Transportation Corridor Agencies, et al., Case No. 8:16-cv-00262, in the U.S. District Court for the Central District of California.

UPDATE: On Dec. 22, 2016, a federal judge ruled that California motorists can have a chance to resubmit their claims in a consolidated toll roads class action lawsuit.