971 F.3d 1060
9th Cir.2020Background
- Grimm parked on a Portland street on Dec. 14, 2017, paid via the city parking app, but did not renew payment after Dec. 15 and did not move the car.
- Over seven days officers left six citations on the windshield; on the seventh day an officer placed a red tow slip and Retriever Towing towed the vehicle; Grimm discovered the tow Dec. 24.
- Grimm sued the City, towing company, and officers claiming the pre-tow notice violated the Fourteenth Amendment due process clause; the district court granted summary judgment for Portland after relying on an unpublished Ninth Circuit disposition and Mathews.
- The Ninth Circuit held individualized pre-towing notice is presumptively required (per Clement) and concluded the district court applied the wrong legal standard for adequacy of notice.
- The court reversed and remanded for the district court to apply Mullane’s "reasonably calculated" standard (and consider Jones-related supplemental-notice issues), noting the record/discovery is not fully developed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was individualized pre-tow notice required? | Grimm: Yes—due process generally requires individualized pre-tow notice. | Portland: Not required here; published law and the citations/tow slip suffice. | Held: Yes—pre-tow notice is presumptively required (Clement); exceptions narrow and not shown. |
| Which legal standard governs adequacy of pre-tow notice? | Grimm: Mullane’s "reasonably calculated" standard applies to adequacy. | Portland/District Ct.: Applied Mathews balancing test. | Held: Mullane (not Mathews) governs adequacy-of-notice inquiries; Mathews governs whether notice is required at all. |
| Were the citations and red tow slip constitutionally adequate? | Grimm: The tickets (and possibly a late tow slip) were not reasonably calculated to notify him; additional steps were available. | Portland: The citations and tow slip provided sufficient notice. | Held: Not decided on the merits—district court erred by using Mathews; remanded for adequacy analysis under Mullane (record/development needed). |
| Did Jones require Portland to take supplemental steps (e.g., app notice) once it knew posting might be ineffective? | Grimm: Yes—when tickets remained on the windshield, Portland had reason to know notice was ineffective and should have used other reasonable means. | Portland: No such additional obligation shown; posted citations/tow slip adequate. | Held: Remand for district court to decide whether Jones requires supplemental notice here and whether such steps were practicable. |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (establishes the "reasonably calculated" standard for adequacy of notice)
- Mathews v. Eldridge, 424 U.S. 319 (sets the three‑part balancing test for what due process procedures are required)
- Jones v. Flowers, 547 U.S. 220 (holding that knowledge notice was ineffective can obligate the government to take additional reasonable steps)
- Dusenbery v. United States, 534 U.S. 161 (clarifies Mullane governs method-of-notice adequacy distinct from Mathews)
- Clement v. City of Glendale, 518 F.3d 1090 (9th Cir.) (pre-towing individualized notice generally required)
- Lone Star Security & Video, Inc. v. City of Los Angeles, 584 F.3d 1232 (9th Cir.) (limited exception re: repeat offenders and notice)
- Scofield v. City of Hillsborough, 862 F.2d 759 (9th Cir.) (abandonment/unregistered-vehicle exception to pre-tow notice)
- Nozzi v. Housing Authority, 806 F.3d 1178 (9th Cir.) (recognizes Mullane governs adequacy-only notice inquiries)