Love v. City of Monterey

Decision Date03 August 1995
Docket NumberNo. H012606,H012606
Citation37 Cal.App.4th 562,43 Cal.Rptr.2d 911
CourtCalifornia Court of Appeals Court of Appeals
Parties, 95 Cal. Daily Op. Serv. 6197, 95 Daily Journal D.A.R. 10,495 Ilana LOVE, Plaintiff and Appellant, v. CITY OF MONTEREY, et al., Defendants and Respondents.

David W. Brown, David M. Olenczuk, Monterey, for appellant.

William B. Conners, Monterey City Atty., Patrick McAdam, Frederick B. Hayes and Iverson, Yoakum, Papiano & Hatch, Los Angeles, for respondents.

Louise H. Renne, San Francisco City Atty., Burk E. Delventhal and James H. Cumming, San Francisco Deputy City Attys., for amicus curiae on behalf of respondents.

BAMATTRE-MANOUKIAN, Acting Presiding Justice.

Have the City of Monterey and the Office of Parking Violations (collectively Monterey) afforded Ilana Love (Love) due process by requiring her to deposit the amount of the parking penalty on a parking ticket in order to contest it at an administrative hearing? The answer is yes, according to the First District Court of Appeal (Division One) in Tyler v. County of Alameda (1995) 34 Cal.App.4th 777, 40 Cal.Rptr.2d 643 (Tyler ). For the reasons stated below, we agree with Tyler and affirm the judgment denying Love a writ of mandate and a preliminary injunction.


On Sunday, November 21, 1993, Love found a Notice of Parking Violation (NPV) on her car when she returned from shopping at Del Monte Shopping Center in Monterey. She was cited at 7:31 p.m. for violating section 20-37.4 of the Monterey City Code by parking in a handicapped space in the parking lot next to a Macy's store. The penalty for this violation of the City Code was $275.

The front of the ticket advised: "request for administrative review of this citation required within 21 days." The back of the ticket further advised: "You may request an administrative review appearance by phoning the Office of Parking Violations." Two telephone numbers were provided. It also stated: "PENALTY OR ADMINISTRATIVE REVIEW REQUEST WITHIN 21 DAYS OR FURTHER PENALTIES WILL BE ASSESSED." The Office of Parking Violations is really Lockheed Information Management Services, Inc. or Lockheed IMS.

On December 8, 1993, Love wrote a letter to Monterey. She asked that the citation be dismissed due to the following "unique circumstances." Several factors combined to hide the handicapped markings from her. It was dark at 7 p.m. when she parked. Other cars were lined up in the parking lot looking for spaces. She pulled into the space just after another car pulled out. The car next to hers was parked partly in the handicapped space, covering the special blue lines marking the space. It was an unintentional error to park in the handicapped space.

On January 5, 1994, the "Monterey P.D." sent Love a form "Notice of Administrative Review Finding." The reviewer, not the same person who issued the citation, determined that the citation was valid because the handicapped spaces were clearly marked. Love was informed that she owed $275.

The form went on to advise Love of her right to an administrative hearing pursuant to California Vehicle Code section 40200.7. 1 "Administrative Hearing requests must be submitted by the 15th day following the date of mailing to you of the results of the processing agencies [sic ] administrative review. Send the original citation and a check for the amount of penalty deposit, along with a written explanation as to why you feel the NPV is unwarranted." (Italics in original.) The form further explained that Love could receive an administrative hearing either by mail or in person. Under either alternative, Love was required to send a check in the amount of the penalty. "If you prevail, and the NPV is suspended your money deposit is refunded by the issuing agency. If you are found liable for the NPV the penalty is paid. However, you may request a review through the court system." The form further explained how to request and obtain court review.

Instead of requesting an administrative hearing, Love contacted Monterey attorney David Brown, author of a book entitled "Fight Your Ticket," published by Nolo Press. On January 18, 1994, on Love's behalf, Brown filed a complaint in the Monterey County Superior Court, initiating this action. Love requested relief by injunction, mandate, or declaration. The superior court ordered that Monterey and the Office of Parking Violations be temporarily restrained from requiring prepayment of penalties to obtain administrative hearings.

Love alleged in her original complaint that she would be irreparably harmed because prepaying $275 would seriously interfere with her ability to pay for life's necessities of food and shelter. Monterey demurred on the basis that Love did not ask for a hardship waiver of the prepayment requirement. Opposing the demurrer, Love proposed to amend her complaint to allege that she would not qualify for a hardship waiver. Although her own income is modest, she is not indigent since the income of her husband and her household is substantial. She also argued that her ability to prepay did not alter the process due.

At a hearing on March 18, 1994, the court issued a preliminary injunction as to Love only. The court also scheduled a hearing on the merits and on Love's application for certification of a class action. At a hearing on April 29, 1994, the trial court denied Love's request for a writ of mandate and an injunction. The court did not reach the class certification issues.

The Statute

Effective July 1, 1993, the Legislature removed parking tickets from the jurisdiction of the criminal courts and provided for administrative procedures instead, followed by optional judicial review. The Legislature made the following findings. "(a) Existing statutory requirements for enforcing and contesting unlawful standing and parking violations in the courts impose an unnecessary burden on the motorists and the public. [p] (b) Criminal penalties are not appropriate sanctions for standing and parking violations; and criminal procedures are not necessary for the fair enforcement of those violations. [p] (c) With the enactment of appropriate fiscal and procedural safeguards, cities, counties, districts, public colleges and universities, and other public entities can collect most standing and parking penalties, and fairly resolve most contested parking violations without court involvement." (Stats.1992, ch. 1244, § 1, No. 12 West's Cal.Legis.Service, p. 5082.)

Under the new statutes, when a notice of parking violation is uncontested, proceedings terminate when the penalty is timely paid. (§ 40204.) 2 If an uncontested ticket is unpaid, the "processing agency" 3 shall deliver a delinquent notice to the vehicle's registered owner. (§ 40206.) 4 If this notice is ignored the agency may so report to the Department of Motor Vehicles, which is required to collect the unpaid penalties upon renewal of either the owner's driver's license (§ 12808.1) or the vehicle's registration (§§ 4760; 40220, subd. (a)). 5 Alternatively, if the registration is 60 days beyond renewal and the accrued penalties exceed $400, the agency may file proof with the court with the same effect as a civil judgment. (§§ 40220, subd. (b); 40221.) 6 If a vehicle accumulates five or more overdue penalties, it may be immobilized (§ 22651.7) 7 or impounded (§ 22651 subd. (i)(1)). 8

There are three steps or stages for contesting a parking ticket. "If a person contests the parking violation, the processing agency shall proceed in accordance with Section 40215." (§ 40205.) An investigation can be requested in person, in writing, or by telephone. (§ 40200.7.) 9 In the first stage, either the processing or the issuing agency conducts an investigation into any circumstances described in writing by the contestant and sends a written report to the contestant. (§ 40215, subd. (a)(1).) 10 In the second stage, if the contestant is dissatisfied with the outcome of this administrative investigation, he or she can obtain an "administrative review" upon request, provided that he or she first deposits the amount of the parking penalty. (§ 40215, subd. (a)(2).) 11 Those demonstrably unable to make the full deposit must still be allowed to proceed. (§ 40200.7.) The administrative review gives the contestant the option of a "personal conference" before an "examiner." (§ 40215, subd. (b).) 12 In the third stage, a contestant dissatisfied with the examiner's written decision can obtain "de novo" judicial review by filing a timely appeal from the decision. (§ 40230.) 13 The contestant is entitled to a refund of the penalty deposit if the court decision is favorable to the contestant. (§ 40230, subd. (b).)

What Process is Due?

Love contends that the prerequisite to administrative review of depositing the penalty constitutes a deprivation of property without due process of law under both the federal and state constitutions. 14 Love challenges the fairness of the first, investigative stage of the process of contesting a ticket. She does not contend that the hearings involved in the second and third stages are constitutionally deficient.

A. Does the Law Deprive Love of Property?

We first consider whether Love is deprived of a constitutionally protected property interest. The statute requires her to deposit the amount of the parking penalty with Monterey in order to obtain an administrative hearing. Love characterizes this as a prepayment of the fine.

We observe that the statute summarized above does not expressly provide for refund or reimbursement of the penalty deposit short of a judicial decision favoring the contestant. Nor does the statute specify when an administrative review must be held after it is requested or when a decision must be delivered. (Tyler, supra, 34 Cal.App.4th at pp. 785-786, 40 Cal.Rptr.2d at pp. 651-652.) However, the administrative review procedure is required to be "fair." (§ 40215, subdivision (b)(5).) We construe this to require promptness of...

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