Andrew Grimm v. City of Portland ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW GRIMM, No. 18-35673
Plaintiff-Appellant,
D.C. No.
v. 3:18-cv-00183-
MO
CITY OF PORTLAND; L. MCHENRY; F.
EARLE; RETRIEVER TOWING,
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted December 13, 2019
Seattle, Washington
Filed August 21, 2020
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and Roger T. Benitez, * District Judge.
Opinion by Judge Berzon
*
The Honorable Roger T. Benitez, United States District Judge for
the Southern District of California, sitting by designation.
2 GRIMM V. CITY OF PORTLAND
SUMMARY **
Civil Rights
The panel reversed the district court’s summary
judgment in favor of the City of Portland in an action
alleging that the City’s pre-towing notice was inadequate
under the Fourteenth Amendment’s Due Process Clause.
The panel first reiterated a settled principle: Due process
requires that individualized notice be given before an
illegally parked car is towed unless the state has a “strong
justification” for not doing so. Clement v. City of Glendale,
518 F.3d 1090, 1094 (9th Cir. 2008).
The panel held that the district court erred by relying on
a 2017 unpublished disposition, Sackman v. City of Los
Angeles, 677 F. App’x 365, 366 (9th Cir. 2017), which
affirmed the application of the balancing test set forth in
Mathews v. Eldridge, 424 U.S. 319 (1976), to a towing
notice case. The panel held that Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306 (1950), rather than
Mathews, sets forth the appropriate standard for analyzing
the adequacy of a pre-towing notice claim. Under Mullane,
the government is required to provide notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GRIMM V. CITY OF PORTLAND 3
Because the district court applied an incorrect legal
standard in determining whether the pre-towing notice was
sufficient, and the record was not fully developed, the panel
remanded this case to the district court. On remand, the
panel instructed the district court to consider, among other
questions: (1) Is putting citations on a car that do not
explicitly warn that the car will be towed reasonably
calculated to give notice of a tow to the owner?; (2) Did the
red tow slip placed on plaintiff’s car shortly before the tow
provide adequate notice?; and (3) Was Portland required
under Jones v. Flowers, 547 U.S. 220 (2006) to provide
supplemental notice if it had reason to suspect that the notice
provided by leaving citations and the tow slip on Grimm’s
windshield was ineffective?
COUNSEL
Gregory Keenan (argued), Digital Justice Foundation, Floral
Park, New York, for Plaintiff-Appellant.
Denis M. Vannier (argued), Senior Deputy City Attorney,
Office of the City Attorney, Portland, Oregon, for
Defendants-Appellees.
Barry W. Lee, Stephanie A. Roeser, Noro Mejlumyan, and
Benjamin G. Shatz, Manatt Phelps & Phillips LLP, San
Francisco, California; Rebekah Evenson and Claire Johnson
Raba, Bay Area Legal Aid, Oakland, California; Elisa Della-
Piana and Jude Pond, Lawyers’ Committee for Civil Rights
of the San Francisco Bay Area, San Francisco, California;
for Amici Curiae San Francisco Coalition on Homelessness,
Lawyers’ Committee for Civil Rights of the SF Bay Area,
and Bay Area Legal Aid.
4 GRIMM V. CITY OF PORTLAND
OPINION
BERZON, Circuit Judge:
The City of Portland (“Portland”) left six citations on
Andrew Grimm’s illegally parked car over the course of
seven days. On the seventh day, Portland left a red tow slip
on Grimm’s windshield. Retriever Towing then towed the
car.
Grimm filed suit, alleging that the pre-towing notice
provided was inadequate under the Fourteenth
Amendment’s Due Process Clause. The district court relied
exclusively on an unpublished opinion of this Court to grant
Portland’s motion for summary judgment, concluding that
under Mathews v. Eldridge, 424 U.S. 319 (1976), the
citations left on Grimm’s windshield were constitutionally
sufficient notice that the car would be towed if not moved.
We hold that the district court erred in applying Mathews
rather than Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950), to analyze Grimm’s adequacy of notice
claim. 1
I.
Grimm parked his car on a public street in Portland on
December 14, 2017 and paid for parking via Portland’s
1
Grimm also claims that summary judgment was inappropriate
because the district court ignored Grimm’s request under Fed. R. Civ. P.
56(d) for discovery into the practicability of providing notice through
Portland’s mobile phone parking app. Because we reverse the district
court’s grant of summary judgment and remand for further proceedings
based on the district court’s application of an incorrect legal standard,
we do not reach Grimm’s argument regarding his Fed. R. Civ. P. 56(d)
objections. We also deny as moot Grimm’s motion for judicial notice of
facts. See Hoffmann v. Pulido, 928 F.3d 1147, 1152 n.4 (9th Cir. 2019).
GRIMM V. CITY OF PORTLAND 5
mobile phone parking app. Grimm was required to pay for
parking again as of 8:00 am on December 15. Grimm neither
paid for parking nor moved his car.
Over the next seven days, Portland officers left on
Grimm’s car windshield four citations for parking illegally
and two citations for displaying expired registration stickers.
On December 21, the day Grimm’s car was towed, the
officer issuing Grimm’s sixth and final citation also placed a
“separate red tow slip” on Grimm’s windshield. The slip had
the word “TOW” on one side and an order to tow the vehicle
on the other. 2 The officer then contacted Retriever Towing,
which “promptly”—how promptly the record does not
disclose—towed Grimm’s car. Grimm learned that his car
had been towed when he looked for it on December 24.
Grimm, an attorney, filed a pro se lawsuit against
Retriever Towing, Portland, and the Portland officers who
issued his citations. When Retriever Towing filed a motion
to dismiss, Grimm sought to stay discovery, explaining in
his motion to stay discovery that the “resolution of legal
issues raised by Retriever Towing’s [motion to dismiss] will
2
Portland maintains that an officer also left a red warning slip with
the December 19th citation. The slip “had the word ‘WARNING’ in
large print on one side and on the back side . . . provided a warning and
notice stating, ‘Your vehicle will be subject to tow/citation if it is not
moved.’” Grimm submitted contrary evidence in support of his
contention that no warning slip was placed on the windshield. The
photographs taken by the officers issuing Grimm’s citations do not
reflect a warning placard, and Retriever Towing did not provide Grimm
with a warning placard, even though it gave him the citations and showed
him the red TOW placard left on his car. “[D]raw[ing] all inferences in
the light most favorable to the nonmoving party,” Gravelet-Blondin,
728 F.3d 1086, 1090 (9th Cir. 2013) (citation and quotation marks
omitted), we assume for present purposes that there was no such
warning.
6 GRIMM V. CITY OF PORTLAND
be helpful in determining the necessary scope of discovery
for all parties.”
The district court dismissed Grimm’s case against
Retriever Towing (“the dismissal”). The dismissal relied
principally on a 2017 unpublished disposition from this
Court, Sackman v. City of Los Angeles, 677 F. App’x 365,
366 (9th Cir. 2017), affirming the application of the
Mathews balancing test in a towing notice case. Grimm
appealed the dismissal but has since withdrawn that appeal
after settling his suit against Retriever Towing.
Portland then filed a motion for summary judgment,
incorporating arguments from Retriever Towing’s motion to
dismiss. At the end of a twelve-minute hearing, the district
court granted Portland’s motion, relying on the dismissal’s
reasoning to reject Grimm’s argument that Mullane was the
applicable legal standard for his adequacy of notice claim.
Now before us is Grimm’s appeal of the district court’s grant
of summary judgment.
II.
Grimm argues that (1) pre-towing notice was required;
(2) the district court applied the incorrect legal standard
when considering Grimm’s adequacy of notice claim; and
(3) the pre-towing notice given was inadequate, principally
because Portland was obligated to attempt other forms of
notice when the car was not moved and the citations
remained on the windshield. Reviewing de novo the district
court’s denial of summary judgment, Gravelet-Blondin,
728 F.3d at 1090, we reverse the grant of summary judgment
and remand for further proceedings.
GRIMM V. CITY OF PORTLAND 7
A.
We first reiterate a settled principle: Due process
requires that individualized notice be given before an
illegally parked car is towed unless the state has a “strong
justification” for not doing so. Clement v. City of Glendale,
518 F.3d 1090, 1094 (9th Cir. 2008). Clement explained that
due process “require[s] that notice generally be given before
the government may seize property,” and held that failing to
give notice before towing an unregistered car that had a
planned non-operation (PNO) certificate 3 for
noncompliance with the PNO certificate was a due process
violation. Id. at 1093, 1095–96.
The general requirement that the government provide
individualized pre-tow notice reflects the important private
interest at stake when the government orders that a private
car be towed. Clement explained that “having one’s car
towed, even one that’s not operational, imposes significant
costs and burdens on the car’s owner.” Id. at 1094. And as
this Court has repeatedly recognized, “[t]he uninterrupted
use of one’s vehicle is a significant and substantial private
interest.” Lone Star Sec. & Video, Inc. v. City of Los Angeles,
584 F.3d 1232, 1238 (9th Cir. 2009) (quoting Scofield v. City
of Hillsborough, 862 F.2d 759, 762 (9th Cir. 1988)). Towing
practices “disproportionately prejudice[e] low-income”
populations as towing can “permanently depriv[e] low-
income individuals of their vehicles (which often serve as
their sole source of income or even their home).” Brief of the
San Francisco Coalition On Homelessness, The Lawyers’
3
PNO certificates allow car owners who neither drive on public
roads nor park in publicly accessible parking lots to avoid paying to
register their cars. Clement, 518 F.3d at 1092 (citing Cal. Veh. Code
§ 4000(a)(1)).
8 GRIMM V. CITY OF PORTLAND
Committee For Civil Rights Of The SF Bay Area, and Bay
Area Legal Aid as Amici Curiae, Dkt. No. 16 at 11–12. For
such individuals, “municipal tow practices often create a
‘debt trap for the poor,’” id. at 16, because, without access
to one’s car, obtaining and maintaining economic security
becomes problematic, id. at 11–18. Clement held that
imposing the burdens associated with a towed car without
providing notice “cannot be justified as a means of deterring
illegal parking.” 518 F.3d at 1094.
We have recognized a few exceptions to the pre-towing
notice requirement. Clement explained that it would not
violate due process to tow a car without providing
individualized pre-towing notice if “the car is parked in the
path of traffic, blocking a driveway, obstructing a fire lane[,]
. . . appears abandoned,” or has “no current registration
stickers and police can’t be sure that the owner won’t move
or hide the vehicle, rather than pay the fine for illegal
parking.” Id. at 1094–95. Clement cited to Scofield for the
abandonment exception, and characterized Scofield as
“authorizing towing in cases where the state has no current
information on the whereabouts of the owner because notice
in such a case could allow the owner to abscond with the
vehicle.” Id. at 1095. But Clement emphasized that “the
default rule is advance notice and the state must present a
strong justification for departing from the norm.” Id. at 1094.
In short, pre-towing notice is presumptively required.
Portland asserts that under Lone Star Sec. & Video, Inc.
v. City of Los Angeles, the city provided Grimm with
adequate pre-towing notice by publishing laws that
authorized the tow, and that the six citations and red tow slip
left on Grimm’s windshield were therefore more than
sufficient. This argument fails.
GRIMM V. CITY OF PORTLAND 9
Portland relies for its argument on a section of Lone Star
that addresses the validity of a city ordinance, not any notice
requirement. 584 F.3d at 1237. 4 In a different section of the
opinion, Lone Star does discuss a notice claim, holding that,
as an exception to Clement’s “general rule,” pre-towing
notice is not required for certain repeat offenders. Id.
at 1238. The notice aspect of Lone Star makes no reference
to whether providing pre-towing notice solely through a
published law authorizing a tow is constitutionally
permissible. Id. at 1237–39. And our holding in Lone Star
that pre-towing notice is not required for a repeat offender
who has already received constitutionally adequate pre-
towing notice on prior occasions does not affect Clement’s
teaching that pre-towing notice is presumptively required; it
just elucidates another circumstance in which the
presumption gives way.
As the district court recognized, then, some
individualized form of pre-towing notice was required
before Portland could tow Grimm’s car. The government
does not suggest that Grimm’s car was blocking anyone’s
path, see Clement, 518 F.3d at 1094, or that Grimm was a
repeat offender, see Lone Star, 584 F.3d at 1237–39. And,
although Grimm forgot to replace the registration stickers on
his car, see Clement, 518 F.3d at 1094–95; Scofield, 862 F.2d
4
Lone Star challenged an ordinance that “prohibited parking in an
otherwise legal public spot for more than 72 hours in the aggregate
during any period of 73 consecutive hours” as pre-empted by, and thus
invalid under, state law. Lone Star, 584 F.3d at 1234 (internal quotation
marks and emphasis omitted). Lone Star contended that because its
parked trailer was towed according to an ordinance that was “itself
unauthorized,” the company’s federal right to due process was violated.
Id. at 1235–36. This Court rejected Lone Star’s argument, holding that
“Lone Star’s invalid-ordinance claim allege[d] no facts that could
plausibly constitute a due process violation.” Id. at 1237.
10 GRIMM V. CITY OF PORTLAND
at 764, the vehicle was properly registered at the time of the
tow. 5 Portland therefore could obtain current information on
the whereabouts of the owner, and the tow was not needed
to provide “security for the payment of the fine.” Clement,
518 F.3d at 1095. As due process required advance
individual notice of a tow under Clement, the pivotal
question on appeal is what legal standard governs whether
the specific notice given was sufficient.
B.
Grimm’s central argument on appeal is that the district
court applied the wrong legal standard when granting
Portland’s motion for summary judgment, and by doing so
failed properly to determine whether the pre-towing notice
Portland gave Grimm was adequate. Grimm maintains that
Mullane’s “reasonably calculated” standard, rather than the
Mathews balancing test, is the legal standard applicable to
his adequacy of notice claim. We agree.
i.
To ground our analysis, we begin by explaining how the
Mullane and Mathews standards differ and why applying
5
Portland argues that it could have towed Grimm’s car without
individualized pre-towing notice under Scofield because Grimm’s car
appeared to be unregistered. This argument is unavailing. Scofield held
that “due process does not require that a pre-towing notice be given to
the owner of a vehicle which has been unregistered for more than one
year from the date on which it is found parked on a public street before
the car can be towed.” 862 F.2d at 764 (emphasis added). Grimm’s car
was registered at the time of the tow, and it was apparent even from the
expired stickers displaying “June 2017” that Grimm’s car had been
registered within the prior six months.
GRIMM V. CITY OF PORTLAND 11
Mullane rather than Mathews could affect the outcome of
this case.
Seventy years ago, Mullane v. Central Hanover Bank &
Trust Co. held that notice of a judicial settlement through an
announcement in a local newspaper violated due process.
339 U.S. at 319. Mullane held that
[a]n elementary and fundamental
requirement of due process . . . is notice
reasonably calculated, under all the
circumstances, to apprise interested parties of
the pendency of the action and afford them an
opportunity to present their objections . . .
with due regard for the practicalities and
peculiarities of the case.
Id. at 314–15. Applying that standard, the Court explained
that the notice provided through a local newspaper
announcement was “inadequate, not because in fact it fails
to reach everyone, but because under the circumstances it is
not reasonably calculated to reach those who could easily be
informed by other means at hand.” Id. at 319. Mullane has
since its issuance been consistently understood as
establishing a “reasonably calculated” standard that governs
the adequacy of notice inquiry. See, e.g., Robinson v.
Hanrahan, 409 U.S. 38, 39–40 (1972) (collecting cases).
Twenty-six years after Mullane, Mathews v. Eldridge
created the oft-cited three-part balancing test applicable
when analyzing “the specific dictates of due process.”
424 U.S. at 335. Mathews recognized that “due process . . .
is not a technical conception with a fixed content unrelated
to time, place and circumstances,” id. at 334 (quoting
Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)),
and held:
12 GRIMM V. CITY OF PORTLAND
[T]he specific dictates of due process
generally requires consideration of three
distinct factors: [1] the private interest that
will be affected by the official action; [2] the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and [3] the
Government’s interest, including the function
involved and the fiscal and administrative
burdens that the additional or substitute
procedural requirement would entail.
Id. at 335.
It was not immediately obvious whether the Mathews
balancing test subsumed Mullane’s “reasonably calculated”
standard as applied to notice requirements. Dusenbery v.
United States, 534 U.S. 161, 167–68 (2002), clarified that
point, holding that Mathews and Mullane coexist, and that
Mullane’s “reasonably calculated” standard continues to
apply, without any balancing test, when courts are
determining whether a method of notice satisfied due
process. Applying the Mullane standard, not Mathews,
Dusenbery held that the government provided adequate
notice to a federal prisoner when it mailed notice regarding
the prisoner’s property forfeiture to the penitentiary where
he was held. Id. at 172–73. We have since recognized and
applied Dusenbery’s holding that Mullane and Mathews
address distinct due process concerns. See, e.g., Nozzi v.
Hous. Auth., 806 F.3d 1178, 1193 n.17 (9th Cir. 2015), as
amended on denial of reh’g and reh’g en banc (Jan. 29,
2016).
GRIMM V. CITY OF PORTLAND 13
Whether to use the Mullane standard rather than the
Mathews balancing test is a potentially dispositive decision
in this case, as we now explain. Central to Grimm’s position
in this case is his argument that Jones v. Flowers, 547 U.S.
220 (2006), extended Mullane in a manner that affects
Portland’s notice obligations. Jones held that the
government did not provide adequate notice of a tax sale of
a property when the notice it provided through certified mail
later was returned as unclaimed. 547 U.S. at 221. As Jones
explained, “[k]nowledge that notice was ineffective was one
of the ‘practicalities and peculiarities of the case’ taken into
account” under Mullane’s reasonably calculated standard.
Id. (quoting Mullane, 339 U.S. at 314–15). Thus, Jones held
that, because “additional reasonable steps were available to
the State,” the certified mail notice was inadequate. 547 U.S.
at 225.
Relying on Jones, Grimm argues that even if the tickets
on his car could have provided notice of the tow, Portland
should have known that notice of the tow through posting on
his car had been ineffective when the car was not moved and
the parking tickets remained on the car’s windshield. With
that awareness, Grimm maintains, Portland was required to
take additional reasonable steps to notify him of the tow.
One such “reasonable step,” Grimm suggests, would have
been to provide electronic notice through Portland’s parking
app. As explained infra, the district court should address this
argument in the first instance. See Section II.C.
ii.
The district court did not consider the differences
between Mullane and Mathews. Instead, the district court
relied on Sackman, a non-precedential memorandum
disposition of this Court, which the district court
misunderstood as holding that the pre-towing, such as that
14 GRIMM V. CITY OF PORTLAND
provided to Grimm, was adequate under Mathews. 6 This
reliance was misguided for two reasons.
First, non-binding memorandum dispositions like
Sackman are “not precedent, except when relevant under the
doctrine of law of the case or rules of claim preclusion or
issue preclusion.” U.S. Ct. of App. 9th Cir. R. 36-3(a).
Sackman’s holding therefore was not a binding ruling of this
Court, and it should not have been relied upon by the district
court as the dispositive basis for its ruling.
Unpublished dispositions provide shorthand
explanations meant to apprise the parties of the basis for a
decision. This practice “frees us to spend the requisite time
drafting precedential opinions in the remaining cases,” and
limits the “confusion and unnecessary conflict” that would
result from publishing redundant opinions. Hart v.
Massanari, 266 F.3d 1155, 1178–79 (9th Cir. 2001). The
facts of cases resolved through memorandum dispositions, if
described—they often are not—are typically opaque, as the
parties already know the facts. Ninth Circuit General Order
4.3(a). And the reasoning in the dispositions is rarely
developed enough to acknowledge and account for
competing considerations, reconcile precedents that could be
seen as in tension with each other, or describe limitations to
the legal holdings—because, in theory, there are no new
legal holdings, just applications of established law to facts.
Id.; see also U.S. Ct. of App. 9th Cir. R. 36-2(a). Designedly
lacking, because of their limited function, the nuance and
6
We note that even if Sackman had been a precedential opinion, its
due process holding would not have governed here. Sackman addressed
a claim that pre-towing and pre-citation notice was required and
involved a citation that “provided further pre-towing notice” two days
before the vehicle was towed. 677 F. App’x. at 365–66.
GRIMM V. CITY OF PORTLAND 15
breadth of precedential opinions, this Court’s memorandum
dispositions are not only officially nonprecedential but also
of little use to district courts or litigants in predicting how
this Court—which, again, is in no way bound by such
dispositions—will view any novel legal issues in the case on
appeal. Hart, 266 F.3d at 1177–78.
So, although memorandum dispositions can be cited, and
may prove useful, as examples of the applications of settled
legal principles when a district court or litigant is interested
in demonstrating how a given principle operates in practice,
a nonprecedential disposition is not appropriately used—as
it was here—as the pivotal basis for a legal ruling by a
district court. Among other problems with such usage, heavy
reliance by a district court on a nonprecedential disposition
leaves this Court on appeal without a legal analysis to
review, as the disposition relied upon by the district court
has at most marginal relevance to our analysis on appeal.
Second—and relatedly—under the governing Supreme
Court case law and our precedents, the district court applied
the incorrect legal standard here. Mathews governs the
question of whether and when due process requirements,
including notice, is required, but Mullane governs Grimm’s
adequacy of notice claim.
Ninth Circuit caselaw supports the understanding that
Mathews applies when determining whether individualized
pre-towing notice is required at all, not what form of notice
is required. Scofield, for example, applied Mathews to
determine whether any notice was required before a car was
towed. 862 F.2d at 762. Similarly, Lone Star applied
Mathews to determine whether individualized notice was
required before towing a repeat offender. 584 F.3d at 1238–
39. But this Court has not had occasion to address what legal
16 GRIMM V. CITY OF PORTLAND
standard applies when determining whether the pre-towing
notice provided was adequate.
In other contexts, this Court has recognized that Mullane,
rather than Mathews, generally governs adequacy of notice
claims. Nozzi v. Housing Authority of City of Los Angeles,
for example, citing Mullane, explained that “the Supreme
Court applies a streamlined test when the only question to be
decided is whether the government has provided sufficient
notice and there is no request for further procedural
safeguards.” 806 F.3d at 1193 n.17. California ex rel.
Lockyer v. F.E.R.C., 329 F.3d 700 (9th Cir. 2003), similarly
stated that the Supreme Court “has used due process
analyses different from the Mathews v. Eldridge analysis in
only a few specific contexts,” including “to evaluate the
adequacy of notice.” Id. at 709 n.8 (citing Dusenbery,
534 U.S. at 168).
No reason appears why Mullane should not govern the
adequacy of pre-towing notice, as it governs the adequacy of
notice in other contexts. Mullane, as elucidated by
Dusenbery and Jones, “requires the government to provide
‘notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.’”
Jones, 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314);
see also Taylor v. Yee, 780 F.3d 928, 934 (9th Cir. 2015).
Grimm’s central claim is that the type of pre-towing notice
Portland provided was inadequate. He does not claim that
there was no notice, that he should have been afforded an
opportunity to be heard, or that any other procedural
safeguard was required before Portland could tow his car.
The Mullane “reasonably calculated” standard—rather than
the Mathews balancing test—therefore applies.
GRIMM V. CITY OF PORTLAND 17
C.
We do not address Grimm’s further arguments—that the
pre-towing notice provided was insufficient under the
Mullane-Jones standard and that Portland was required to
provide notice through other means, such as the city’s
mobile phone parking app. The district court erred in
applying the Mathews balancing test, and “where application
of incorrect legal standards may have influenced the district
court’s conclusion, remand is appropriate.” Zetwick v.
County of Yolo, 850 F.3d 436, 442 (9th Cir. 2017). Although
we have discretion in reviewing a grant of summary
judgment to apply the correct standard ourselves, see, e.g.,
Cameranesi v. U.S. Dep’t of Def., 856 F.3d 626, 641–42 (9th
Cir. 2017), that course would be inappropriate here. Because
discovery was stayed while the district court decided the
applicable standard, the present record is not fully
developed, especially regarding the application of Jones.
The analysis under Mullane and Jones will require the
district court to decide whether the citations and tow placard
provided “reasonably calculated” notice of the tow, and
whether, if Portland had knowledge that notice was
ineffective, it was practicable to notify Grimm through other
means.
We therefore remand this case to the district court to
consider, among other questions: (1) Is putting citations on
a car that do not explicitly warn that the car will be towed
reasonably calculated to give notice of a tow to the owner?;
(2) Did the red tow slip placed on Grimm’s car shortly before
the tow provide adequate notice?; and (3) Was Portland
required under Jones to provide supplemental notice if it had
reason to suspect that the notice provided by leaving
citations and the tow slip on Grimm’s windshield was
ineffective?
18 GRIMM V. CITY OF PORTLAND
III.
For the foregoing reasons, we conclude that
individualized pre-towing notice was required, and that the
Mullane “reasonably calculated” standard governs the
adequacy of notice claim here. The district court’s grant of
summary judgment to Portland is REVERSED, and the case
is REMANDED for further proceedings consistent with this
opinion.