Stephen Yagman v. Eric Garcetti , 852 F.3d 859 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN YAGMAN, No. 14-56223
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-02330-GHK-E
ERIC GARCETTI, GILBERT OPINION
CEDILLO; PAUL KREKORIAN;
BOB BLUMENFIELD; TOM
LABONGE; PAUL KORETZ;
NURY MARTINEZ; FELIPE
FUENTES; BERNARD PARKS;
CURREN PRICE, JR.; HERB
WESSON, JR.; MIKE BONIN;
MITCHELL ENGLANDER;
MITCH O’FARRELL; JOSE
HUIZAR; JOE SUSCANIO;
GEORGE E. MOSS; GRACE
EUNKYUNG YOO; RON
CARPENTER; DAVID
MALCOME CARSON; JAIME
JESUS RODRIGUEZ;
STEPHANIE RODRIGUEZ;
DANA MATTHEW PERLMAN;
JANNY H. KIM; JOHN LY;
ERIC EISHENBERG; BRYAN
KANG; JAIME DE LA VEGA;
SELWYN HOLLINS; DETRICH
ALLEN; ROBERT ANDALON;
GRAG SAVELLI; JOHN FICKE;
2 YAGMAN V. GARCETTI
SHARON LOUIS JACOBUCCI,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted November 9, 2016
Pasadena, California
Filed January 20, 2017
Before: Marsha S. Berzon and Jacqueline H. Nguyen,
Circuit Judges, and Jack Zouhary, District Judge.
Opinion by Judge Zouhary*
*
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
YAGMAN V. GARCETTI 3
SUMMARY**
Civil Rights
The panel affirmed the district court’s dismissal of an
action brought pursuant to 42 U.S.C. § 1983 alleging that the
procedure provided by the City of Los Angeles for contesting
parking citations, as set forth in the California Vehicle Code,
deprives contestants of property without due process.
The panel rejected plaintiff’s contention that his right to
procedural due process was violated because under the Code
he was required to pay the citation penalty or prove an
inability to pay before obtaining an administrative hearing.
The panel held that plaintiff’s modest interest in temporarily
retaining the amount of a parking penalty was outweighed by
the City’s more substantial interests in discouraging dilatory
challenges, promptly collecting penalties, and conserving
scarce resources.
The panel held that plaintiff’s substantive due process
challenge failed because he did not allege conduct so
egregious as to amount to an abuse of power lacking any
reasonable justification in the service of a legitimate
governmental objective. The panel also held that plaintiff
failed to plead sufficient facts to state § 1983 claims for
malicious prosecution, conspiracy, and Monell liability, and
also failed to adequately plead facts establishing a RICO
claim.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 YAGMAN V. GARCETTI
Finally, the panel held that the district court did not err
by not granting leave to amend the complaint because
amendment would have been futile.
COUNSEL
Stephen Yagman (argued), Yagman & Reichmann, Venice
Beach, California, pro se Plaintiff-Appellant.
Gerald M. Sato (argued), Deputy City Attorney; Ronald S.
Whitaker, Assistant City Attorney; Thomas H. Peters, Chief
Assistant City Attorney; Michael N. Feuer, City Attorney;
Office of the Los Angeles City Attorney, Los Angeles,
California; for Defendants-Appellees.
OPINION
ZOUHARY, District Judge:
The primary issue in this appeal is whether the California
Vehicle Code’s procedure for contesting parking citations—
as implemented by the City of Los Angeles—deprives
contestants of property without due process. The district
court answered no. We affirm.
I
Appellant Stephen Yagman alleges that he received and
contested three parking citations from the City of Los
Angeles (“the City”). While not mentioned in his Complaint
or opposition to the City’s motion to dismiss, the California
Vehicle Code establishes the baseline procedure for
YAGMAN V. GARCETTI 5
contesting those citations. See Cal. Veh. Code § 40215. The
contestant must first request an initial review by the “issuing
agency.” Id. § 40215(a). If the initial review does not result
in the citation’s cancellation, the contestant may then request
an administrative hearing within 21 days after the results of
the initial review have been mailed. Id. § 40215(b). Should
the challenger make such a request, the issuing agency must
hold an administrative hearing within 90 days of the receipt
of such request. Id. Before the hearing will be held, the
contestant must either deposit the amount of the citation
penalty or prove an inability to pay. Id. If still unsatisfied
after the formal administrative hearing, the contestant may
seek de novo review in the superior court. Id. § 40230.
In his threadbare Complaint, Yagman alleges that he
asked for a “hearing” and, after his requests to waive the
deposit requirement were denied, deposited the penalties and
prevailed at two of the three formal administrative hearings.
Yagman does not dispute that he underwent the initial review
process and that he offered no proof of an inability to pay.
Yagman filed a putative class action against various city
officials alleging Section 1983 claims for due process
violations, malicious prosecution, conspiracy, and Monell
liability, as well as a claim under the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961
et seq. The district court dismissed Yagman’s claims with
prejudice. On appeal, Yagman argues he adequately pled
facts supporting each of his claims and, in any event, the
district court erred by not granting leave to amend.
6 YAGMAN V. GARCETTI
II
We review “de novo the district court’s grant of a motion
to dismiss under Rule 12(b)(6), accepting all factual
allegations in the complaint as true and construing them in
the light most favorable to the nonmoving party.” Ebner v.
Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016) (quoting
Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014
(9th Cir. 2012)). A dismissal may be affirmed on any ground
supported by the record. Id. And dismissal is appropriate
where the plaintiff failed to allege “enough facts to state a
claim to relief that is plausible on its face.” Id. at 962–63
(quoting Turner v. City & Cty. of San Francisco, 788 F.3d
1206, 1210 (9th Cir. 2015)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements” are insufficient. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
A district court’s denial of leave to amend is reviewed for
abuse of discretion. Ebner, 838 F.3d at 963. “In dismissing
for failure to state a claim, a district court should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Id. (quoting Doe v.
United States, 58 F.3d 494, 497 (9th Cir. 1995)).
III
Yagman first argues that the City’s procedure for
contesting parking citations violates procedural due process
because it requires contestants to surrender property before
holding a formal hearing. “Due process is a flexible concept
that varies with the particular situation.” Shinault v. Hawks,
782 F.3d 1053, 1057 (9th Cir. 2015) (internal quotations
YAGMAN V. GARCETTI 7
omitted). “The base requirement of the Due Process Clause
is that a person deprived of property be given an opportunity
to be heard at a meaningful time and in a meaningful
manner.” Buckingham v. Sec’y of U.S. Dep’t of Agric., 603
F.3d 1073, 1082 (9th Cir. 2010) (quoting Brewster v. Bd. of
Educ., 149 F.3d 971, 984 (9th Cir. 1998)). This principle
does not always require a full evidentiary hearing or a formal
hearing. Id.
The Supreme Court has held, however, that usually “the
Constitution requires some kind of . . . hearing before the
State deprives a person of liberty or property.” Shinault, 782
F.3d at 1058 (emphasis added and altered) (quoting Zinermon
v. Burch, 494 U.S. 113, 127 (1990)); see also United States
v. Clifford Matley Family Trust, 354 F.3d 1154, 1162 (9th
Cir. 2004) (“[T]he type of hearing required depends on the
circumstances.”). Thus, in “situations where the State
feasibly can provide a predeprivation hearing before taking
property, it generally must do so regardless of the adequacy
of a postdeprivation . . . remedy to compensate for the
taking.” Shinault, 782 F.3d at 1058 (quoting Zinermon, 494
U.S. at 127).
The predeprivation hearing, which “need not be
elaborate,” “serves only as an initial check against mistaken
decisions—essentially, a determination of whether there are
reasonable grounds to believe that the charges are true and
support the proposed action.” Brewster, 149 F.3d at 985
(internal citations and quotation marks omitted). “To that
end, a [due process] plaintiff need only be accorded oral or
written notice of the charges against him, an explanation of
the [adverse] evidence, and an opportunity to present his side
of the story.” Id. (internal citations and quotation marks
omitted). Further, where “prompt postdeprivation review is
8 YAGMAN V. GARCETTI
available for correction of administrative error, [due process]
generally require[s] no more than that the predeprivation
procedures used be designed to provide a reasonably reliable
basis for concluding that the facts justifying the official action
are as a responsible governmental official warrants them to
be.” Mackey v. Montrym, 443 U.S. 1, 13 (1979).
Accordingly, there are no “hard and fast” rules for
determining the requisite timing and adequacy of pre- and
post-deprivation procedures. See Brewster, 149 F.3d at 984.
Rather, once this court has concluded a protected interest is
at stake, it must apply the three-part balancing test established
in Mathews v. Eldridge, 424 U.S. 319 (1979), to determine
“whether a pre-deprivation hearing is required and what
specific procedures must be employed at that hearing given
the particularities of the deprivation.” Shinault, 782 F.3d at
1057. The Mathews factors are: “(1) the private interest
affected; (2) the risk of erroneous deprivation through the
procedures used, and the value of additional procedural
safeguards; and (3) the government’s interest, including the
burdens of additional procedural requirements.” Id. “By
weighing these concerns, courts can determine whether a
State has met the fundamental requirement of due
process—the opportunity to be heard at a meaningful time
and in a meaningful manner.” City of Los Angeles v. David,
538 U.S. 715, 717 (2003) (internal quotations omitted).
Yagman argues that the Mathews balancing test is
inapplicable. He relies on the Supreme Court’s observation
in United States v. James Daniel Good Real Property that it
“tolerates some exceptions to the general rule requiring
predeprivation notice and hearing, but only in extraordinary
situations where some valid governmental interest is at stake
that justifies postponing the hearing until after the event.”
YAGMAN V. GARCETTI 9
510 U.S. 43, 53 (1993) (quoting Fuentes v. Shevin, 407 U.S.
67, 82 (1972)). Yagman believes the parking-citation process
at issue fails to qualify as “extraordinary” and that this failure
must end the inquiry. But Yagman ignores Good’s
application of Mathews in determining whether an exception
to the general rule was warranted. See Good, 510 U.S. at 53
(“Whether the seizure of real property for purposes of civil
forfeiture justifies such an exception requires an examination
of the competing interests at stake, along with the promptness
and adequacy of later proceedings. The three-part inquiry set
forth in [Mathews] provides guidance in this regard.”).
Moreover, Yagman mistakenly assumes the initial review
does not satisfy Good’s “general rule requiring predeprivation
notice and hearing.” Properly framed, the issue is not
whether predeprivation notice and a full, formal hearing are
required; it is whether the City’s procedures as a whole are
constitutionally adequate under the circumstances—a
determination that requires application of the Mathews test.
With respect to the first Mathews factor, the private
interest at stake is relatively modest. Any erroneous
deprivation based on the City’s prehearing deposit
requirement is temporary, as the deposit is refunded after a
successful challenge. See Mackey, 443 U.S. at 12 (“The
duration of any potentially wrongful deprivation of a property
interest is an important factor in assessing the impact of
official action on the private interest involved.”); Cal. Veh.
Code § 42201.6 (requiring a refund of the deposit within 30
days of cancellation). Here, given the exception for
individuals who cannot afford the deposit, the only private
interest at stake for those subject to the deposit requirement
is the temporary use of deposited funds during the period
between a request for an administrative hearing and any
10 YAGMAN V. GARCETTI
refund following resolution of that hearing—a period which
cannot exceed 120 days under state law. See David, 538 U.S.
at 717–718; Love v. City of Monterey, 43 Cal. Rptr. 2d 911,
923 (Cal. Ct. App. 1995). Yagman characterizes this private
interest as the “lost time-value of money,” but he does not
allege the length of time between his payment of the penalty
amounts and refund. According to the Complaint, the largest
alleged penalty was $73. Thus, the actual amount at stake
was the interest accrued on $73 over perhaps as little as a few
days, and no more than a few months. In other words, a very
modest sum over a short period of time—a few dollars at
most. See David, 538 U.S. at 719 (2003) (holding that a 27-
day delay between payment for vehicle towing and any
refund was not a due process violation).
With respect to the second Mathews factor, the risk of
erroneously depriving contestants of the deposited funds is
relatively small. The initial-review process gave Yagman an
opportunity to present evidence and arguments challenging
his citations. That evidence would then be considered by the
reviewer. See Weiss v. City of Los Angeles, 206 Cal. Rptr. 3d
213, 218 (2016) (summarizing the Los Angeles initial-review
procedure). Nothing in the Complaint plausibly suggests the
initial reviews were conducted unfairly. In fact, the state
appellate court in Weiss—a case on which Yagman relies
heavily on appeal—noted that the initial-review procedure
was fair. 206 Cal. Rptr. 3d at 232 (“That the current initial
review procedure is fair speaks well of the City and Xerox’s
intent in implementing and using it.”).1
1
Yagman also argues that the City’s delegation of the initial review
to a third-party processing agency in violation of the California Vehicle
Code made the initial review a “legal nullity” that deprived him of due
process. We decline to consider this argument because he failed to raise
YAGMAN V. GARCETTI 11
Yagman argues that the initial review is “perfunctory,
illusory, meaningless, and . . . [that it] results invariably in
75% of all cases in a deprivation of property.” Even
assuming he could support this argument with allegations to
the same effect, that would not be enough to plausibly
suggest a constitutional inadequacy. To the contrary, as the
district court correctly noted, the fact that the initial review
allegedly results in cancellation of a citation twenty-five
percent of the time shows that it “catches many mistakes and
protects against arbitrariness.” The mere fact that the initial-
review process failed to correct two of the three tickets he
received, under identical circumstances, does not suggest a
systemic failure of the process. The Due Process Clause does
not require “that all governmental decisionmaking comply
with standards that assure perfect, error-free determinations.”
Mackey, 443 U.S. at 13.
Finally, with respect to the third Mathews factor, the
City’s interests served by the deposit requirement are
substantial. One such interest is in discouraging dilatory
challenges. See Love, 43 Cal. Rptr. 2d at 925. Requiring the
City to provide formal administrative hearings without
collecting deposits would encourage contestants to request
hearings simply to delay paying the penalties. The City has
an interest in promptly collecting parking penalties. See id.
at 924–25. Also, requiring a deposit before providing a
formal hearing ensures the penalty will be collected following
unsuccessful challenges. See id. at 924. By ensuring prompt
payment for unsuccessful challenges, the City is spared the
cost of further collection efforts. Lastly, the City has an
interest in conserving “scarce administrative resources.” See
it in opposing the motion to dismiss below. See Hendricks & Lewis PLLC
v. Clinton, 766 F.3d 991, 998 (9th Cir. 2014).
12 YAGMAN V. GARCETTI
id. at 925. By discouraging frivolous and dilatory challenges,
the City avoids the need to schedule and staff unnecessary
hearings.
Given the threadbare allegations in the Complaint and
balancing the Mathews factors discussed above, this court
concludes that the deposit requirement does not violate
procedural due process. Given the moderate risk of erroneous
deprivation, Yagman’s modest interest in temporarily
retaining the amount of a parking penalty is outweighed by
the City’s more substantial interests in discouraging dilatory
challenges, promptly collecting penalties, and conserving
scarce resources.
Importantly, under these circumstances, the initial review
serves as an adequate “initial check against mistaken
decisions.” Brewster, 149 F.3d at 985 (quoting Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 545–46 (1985)). Given
the availability of prompt post-deprivation review and
correction, the initial review is “designed to provide a
reasonably reliable basis for concluding that the facts
justifying the official action are as a responsible
governmental official warrants them to be,” Mackey, 443 U.S.
at 13, and so supports requiring payment of the deposit if the
initial challenge does not succeed. Thus, Yagman cannot
state a claim for violation of procedural due process based on
the deposit requirement.
IV
In addition to his procedural due process challenge,
Yagman argues the City’s procedure violates substantive due
process because it is fundamentally unfair. Not so.
Fundamental rights are not implicated in this case. See
YAGMAN V. GARCETTI 13
Samson v. City of Bainbridge Island, 683 F.3d 1051, 1058
(9th Cir. 2012) (“[G]overnment action that ‘affects only
economic interests’ does not implicate fundamental rights.”)
(quoting Jackson Water Works, Inc. v. Pub. Utils. Comm’n,
793 F.2d 1090, 1093 (9th Cir. 1986)). Thus, to establish a
substantive due process violation based on the City’s
procedures, Yagman must show the procedures are “clearly
arbitrary and unreasonable, having no substantial relation to
the public health, safety, morals or general welfare.” Id.
(quoting Kawaoka v. City of Arroyo Grande, 17 F.3d 1227,
1234 (9th Cir. 1994)). The City’s procedures, however, are
“presumed valid, and this presumption is overcome only by
a clear showing of arbitrariness and irrationality.” Id.
(quoting Kawaoka, 17 F.3d at 1234). This is an “exceedingly
high burden.” Id. (quoting Shanks v. Dressel, 540 F.3d 1082,
1088 (9th Cir. 2008)). Because Yagman has not alleged
conduct so “egregious” as to “amount to an abuse of power
lacking any reasonable justification in the service of a
legitimate governmental objective,” id. (quoting Shanks, 540
F.3d at 1088), his substantive due process challenge fails.
V
Yagman also argues he pled sufficient facts to state
Section 1983 claims for malicious prosecution, conspiracy,
and Monell liability. But to establish a claim for malicious
prosecution under Section 1983, Yagman “must show that the
defendants prosecuted [him] with malice and without
probable cause, and that they did so for the purpose of
denying [him] equal protection or another specific
constitutional right.” Awabdy v. City of Adelanto, 368 F.3d
1062, 1066 (9th Cir. 2004) (quoting Freeman v. City of
Sacramento, 68 F.3d 1180, 1189 (9th Cir. 1995)). Yagman
14 YAGMAN V. GARCETTI
alleges no facts indicating his civil parking citations were
issued with malice and without probable cause.
Moreover, Yagman’s malicious prosecution, conspiracy,
and Monell claims are each premised on a violation of
Yagman’s constitutional rights. Because we hold that
Yagman has not alleged a violation of his constitutional
rights, he cannot maintain derivative constitutional claims
based on that conduct.
VI
Yagman next argues that he adequately pled facts
establishing a RICO claim. But the Complaint contains
nothing more than the following conclusory allegations
regarding the required RICO predicates: “The bad acts
described in the matters enumerated herein above . . .
evidence civil RICO predicates, including at least fraud, wire
fraud, mail fraud, extortion, and civil rights violations.”
There is no RICO predicate based on allegations of
unspecified “civil rights violations.” See Jennings v. Emry,
910 F.2d 1434, 1438 (7th Cir. 1990). And Yagman pled no
facts on which this court could infer the City engaged in
“fraud, mail fraud, wire fraud, or extortion.”
VII
Finally, Yagman argues the district court erred by not
granting leave to amend his Complaint. A district court
ordinarily must grant leave to amend when it dismisses
claims under Rule 12(b)(6). But the district court need not
grant leave if it “determines that the pleading could not
YAGMAN V. GARCETTI 15
possibly be cured by the allegation of other facts.” Ebner,
838 F.3d at 963 (quoting Doe, 58 F.3d at 497).
For the reasons discussed above, Yagman could not in
good faith allege additional facts that would plausibly state a
claim based on the City’s citation-contest procedure. Leave
to amend would have been futile. And for all those reasons,
the dismissal of Yagman’s claims with prejudice is affirmed.
AFFIRMED.