Tyler v. County of Alameda

Decision Date03 May 1995
Docket NumberNo. A066161,A066161
Citation40 Cal.Rptr.2d 643,34 Cal.App.4th 777
CourtCalifornia Court of Appeals Court of Appeals
Parties, 63 USLW 2713 Dennis R. TYLER, Plaintiff and Appellant, v. COUNTY OF ALAMEDA et al., Defendants and Respondents.

David W. Brown, Brown & Kleman, David M. Olenczuk, Certified Law Student, Monterey, for appellant, plaintiff.

Kelvin H. Booty, Jr., County Counsel, Kathy E. Mount, Deputy County Counsel, Office of County Counsel, County of Alameda, Oakland, for respondents, defendants.

DOSSEE, Associate Justice.

In this lawsuit, plaintiff challenges the new statutory procedure for contesting parking tickets. Two issues are presented: (1) May the contestant constitutionally be required to pay the parking penalty before an administrative hearing is held? (2) May the contestant

lawfully be required to pay a fee of $25 to defray the costs of administrative review?

Legal Background

In 1992 the Legislature substantially changed the way parking violations are handled. No longer are parking violations treated as infractions within the criminal justice system; instead, they are treated as civil offenses subject to civil penalties and administrative enforcement. (Veh.Code, §§ 40200, 40203.5, subd. (b).) 1

The Legislature has provided for a two-step process when a person questions his or her notice of a parking violation ("parking ticket"). First, within 21 days of the issuance of the ticket the person may request review by the processing agency. (§ 40200.7.) The processing agency must then conduct an investigation, either with its own staff or by the issuing agency. (§ 40215, subd. (a)(1).) If the person is not satisfied with the results of this initial review, he or she may then request "administrative review" consisting of a hearing before an examiner. (§§ 40200.7, 40215, subds. (a)(2), (b).) The request for administrative review must be made within 15 days following the mailing of the results of the initial review and must be accompanied by a written explanation of the reasons for contesting the parking ticket plus a deposit of the full amount of the parking penalty. (§ 40200.7.) 2

After exhausting this administrative review process, the contestant may obtain judicial review of the decision of the hearing examiner by filing an appeal in the justice or municipal court. (§ 40230.)

If the parking violator does not contest the parking ticket and does not pay the parking penalty, the processing agency may notify the Department of Motor Vehicles ("DMV"), and DMV must then collect the unpaid penalties when the vehicle's registration is renewed. (§§ 4760, 40220, subd. (a).) In the alternative, if the violator has accumulated more than $400 in unpaid parking tickets or if the vehicle's registration is not renewed, then proof of the unpaid parking tickets may be filed with the court with the same effect as a civil judgment. (§ 40220, subds. (b), (c).)

Factual and Procedural History

On January 8, 1994, plaintiff got a parking ticket issued by a deputy sheriff of Alameda County. The ticket indicated that plaintiff had parked in a bus zone and that the penalty for this parking violation was $250. Plaintiff submitted a timely request to the County of Alameda ("County") for "initial administrative review," asserting that his car was next to, but not in, the bus zone. On January 31, 1994, the County sent plaintiff its notice of decision, finding no grounds to warrant cancellation of the parking ticket. The Plaintiff then filed his complaint on his own behalf and on behalf of others similarly situated for injunctive and declaratory relief seeking to compel the County to proceed to an administrative hearing without prepayment of the parking penalty and without prepayment of the processing fee.

printed notice informed plaintiff that if he was not satisfied with the findings of this initial review he could contest the decision to a hearing officer by sending a written explanation of the reasons for contesting the decision plus the full amount of the parking fine and a $25 "processing fee."

In opposition to plaintiff's motion for a preliminary injunction, the County submitted evidence of the procedures employed by the Sheriff's Department for handling parking tickets. The initial review is conducted by a sergeant in the Sheriff's Department; this sergeant is not the person who wrote the parking ticket. The sergeant reviews the complainant's written explanation and conducts whatever investigation is called for under the circumstances. If the complainant is not satisfied, he or she may seek administrative review conducted by a hearing officer, at which time the complainant may appear in person, present evidence, and cross-examine witnesses.

According to the County's evidence, the $25 "processing fee" is to help defray the costs of administering the second level of administrative review: (1) the time spent by Sheriff's Department personnel in scheduling the hearing and organizing the materials for the hearing officer; and (2) payment to the hearing officer for time spent in conducting the hearing. If the complainant prevails at the administrative hearing, both the processing fee and the parking penalty are refunded to the complainant.

The trial court denied plaintiff's motion for a preliminary injunction. Plaintiff appeals. By stipulation, enforcement of plaintiff's parking ticket has been stayed pending appeal.

DISCUSSION

Upon a motion for a preliminary injunction the plaintiff must meet two basic requirements: (1) he must show he is likely to suffer greater hardship from denial of the injunction than the defendant is likely to suffer from its grant; and (2) he must demonstrate a reasonable probability of success on the merits. (See Robbins v. Superior Court (1985) 38 Cal.3d 199, 206, 211 Cal.Rptr. 398, 695 P.2d 695.)

Ordinarily, an order denying a preliminary injunction will be reversed only for abuse of discretion. Here, however, it appears from the nature of the briefing submitted below that the trial court considered only the legal issue of likelihood of success on the merits. Thus, the appeal presents a question of law subject to de novo review by this court. (Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1138, 17 Cal.Rptr.2d 408.)

I. Advance Payment of the Parking Penalty

It is undisputed that a deposit of $250 in payment of the parking penalty is a deprivation of property, albeit temporary, which comes within the purview of the due process clause. (See Brooks v. Small Claims Court (1973) 8 Cal.3d 661, 667, 105 Cal.Rptr. 785, 504 P.2d 1249 [requirement of an undertaking before an appeal could be taken from small claims court].) The question, then, is not whether plaintiff is entitled to due process but, as it is often put, "what process is due." 3 (Morrissey v. Brewer (1972) 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484; Leslie's Pool Mart, Inc. v. Department of Food & Agriculture (1990) 223 Cal.App.3d 1524, 1531, 273 Cal.Rptr. 373.)

We begin with the basic proposition that, at a minimum, whenever property is taken due process requires some form of notice and a hearing. (E.g., Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 307, 138 Cal.Rptr. 53, 562 P.2d 1302 [removal of offending newsracks]; Merco Constr. Engineers, Inc. v. Los Angeles Unified Sch. Dist. (1969) 274 Cal.App.2d 154, 165-169, 79 Cal.Rptr. 23 [statutory penalty upon prime contractor].) Here, under the statutory procedure for contesting parking tickets, a hearing is provided--after the contestant has deposited the parking penalty. The question before us is whether the Constitution requires that the hearing be held before the contestant must pay the parking penalty.

The courts have long recognized that in limited cases where prompt action is necessary to protect the public health or welfare, an agency may take property without any advance hearing. (E.g., North American Cold Storage Co. v. Chicago (1908) 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 [destruction of food believed to be unsafe]; Fahey v. Mallonee (1947) 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 [seizure of bank to protect depositors]; Ewing v. Mytinger & Casselberry (1950) 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 [seizure of drugs believed to be mislabeled]; see also State Savings etc. Bank v. Anderson (1913) 165 Cal. 437, 132 P. 755 affd. 238 U.S. 611, 35 S.Ct. 792, 59 L.Ed. 1488 [seizure of unsafe bank]; Simpson v. City of Los Angeles (1953) 40 Cal.2d 271, 253 P.2d 464 [destruction of unclaimed dog]; Carrera v. Bertaini (1976) 63 Cal.App.3d 721, 728, 134 Cal.Rptr. 14 [seizure of contaminated food].)

When summary action is justified, due process is satisfied as long as there is a prompt post-deprivation hearing to review the agency's determination. (Ewing v. Mytinger & Casselberry, supra, 339 U.S. 594, 70 S.Ct. 870; cf. Kash Enterprises, Inc. v. City of Los Angeles, supra, 19 Cal.3d at p. 308, 138 Cal.Rptr. 53, 562 P.2d 1302; Menefee & Son v. Department of Food & Agriculture (1988) 199 Cal.App.3d 774, 781-783, 245 Cal.Rptr. 166.)

In Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, the Supreme Court examined the constitutional validity of the New York program for AFDC and general assistance benefits. Under that program aid could be terminated after a letter and an informal conference with a caseworker, but the recipient was not given an opportunity to present evidence or confront adverse witnesses; the recipient was afforded only a post-termination hearing with judicial review. The Supreme Court held the absence of an evidentiary hearing before terminating the benefits was a denial of procedural due process.

Later, however, in Mathews v. Eldridge (1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, the court concluded that a post-deprivation hearing following termination of social security disability benefits satisfied due process. The Mathew...

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