Schroeder v. Ace Towing Services, Inc. et al

Filing 95

ORDER GRANTING DEFENDANTS' MOTIONS AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT re 44 , 49 , 55 - Signed by Judge BARRY M. KURREN on 1/9/2015. (emt, )CERTIFICATE OF SERVICEParticipants registe red to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

ERIC SCHROEDER,

)
)
Plaintiff,
)
)
vs.
)
)
ACE TOWING SERVICES, INC., ET )
AL.,
)
)
Defendants.
)
______________________________ )

CIV. NO. 13-00706 BMK
ORDER GRANTING
DEFENDANTS’ MOTIONS AND
DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT

ORDER GRANTING DEFENDANTS’ MOTIONS AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Before the Court are (1) Defendants City and County of Honolulu and
Christopher G. Chung’s (collectively the “City Defendants”) Motion for Judgment
on the Pleadings or in the Alternative, Motion for Summary Judgment, filed
September 4, 2014, (Doc. 44); (2) Defendant Ace Towing Services, Inc., Ace
Towing/Waialae Chevron’s (collectively the “Ace Defendants”) Motion to Dismiss
and/or for Summary Judgment, filed September 8, 2014, (Doc. 49); and (3) Plaintiff
Eric Schroeder’s (“Plaintiff”) Motion for Summary Judgment, filed September 10,
2014, (Doc. 55) (collectively, “Dispositive Motions”). The parties filed their
respective Memoranda in Opposition to the Dispositive Motions on November 24,

2014, (Docs. 68, 69, 71), and their Replies on December 1, 2014. (Docs. 75, 77, 79,
80.)
These matters came on for hearing on December 15, 2014. (Doc. 82.)
Appearing on behalf of Plaintiff was Richard D. Gronna; appearing on behalf of the
City Defendants was Curtis E. Sherwood; and appearing on behalf of the Ace
Towing Defendants was Lorrin A. Kau. (Id.) After careful consideration of the
Motions, the supporting and opposing memoranda, and the arguments of counsel,
the Court: (1) GRANTS the City Defendants’ Motion for Judgment on the Pleadings
or in the Alternative, Motion for Summary Judgment; (2) GRANTS the Ace
Defendants’ Motion to Dismiss and/or for Summary Judgment; and (3) DENIES
Plaintiff’s Motion for Summary Judgment.
BACKGROUND
Because this case is currently before the court on the parties’ motion for
judgment on the pleadings or, alternatively, for summary judgment, pursuant to
Federal Rules of Civil Procedure (“FRCP”) Rule 12(c) and 56, respectively, as to all
of Plaintiff’s claims, the following factual allegations are taken from Plaintiff’s and
Defendants’ affidavits and submissions.
I.

Factual Background
This case is a 42 U.S.C. § 1983 action stemming from Plaintiff’s

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challenge to the City’s rules, ordinances, and polices relating to tow operations.
(Doc. 1 at 2-3, ¶ 3.) On October 10, 2011, Plaintiff parked his vehicle in a tow away
zone on Bethel Street. (Doc. 45-2 at 1.) On that day, at approximately 5:00 p.m.,
Honolulu Police Department (“HPD”) Officer Christopher G. Chung (“Officer
Chung”) issued a “Notice of Parking Infraction” (“Parking Citation”) to Plaintiff’s
vehicle, alleging a violation of Revised Ordinances of Honolulu (“ROH”) § 15-14.8,
prohibiting the parking of a vehicle in a tow away zone.1 (Doc. 1-2 at 9, ¶ 28; see
also Doc. 45-2 at 1-2.) After issuing the Parking Citation, Officer Chung contacted
HPD’s Communications Division to initiate a tow pursuant to ROH § 15-13.9(a),
which provides that HPD officers are “authorized to remove vehicles or cause them
to be removed from a street, highway or pedestrian mall to a storage area or other
place of safety” when the vehicle is left unattended or parked in a tow zone “during
the time of restricted parking[.]” (Doc. 45-1 at 2, ¶ 5; ROH § 15-13.9(a).) Officer
Chung subsequently left Bethel Street, and HPD, through its Communications
Division, contacted Ace Towing/Waialae Chevron (“Ace Towing”) to tow

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ROH § 15-14.8 provides, in relevant part:
(a) When official signs are erected designating a street or portions thereof as a tow or tow away zone, no
person shall stop, stand or park a vehicle, even momentarily, between the hours indicated on such signs;
provided, that:
(1) During hours other than the morning and afternoon peak traffic hours as defined in this code:
(A) Stops may be made by a vehicle displaying a valid decal pursuant to the provisions on Section
15-15.5 for the expeditions loading or unloading of freight,
....
(b) In no case shall the stop for the loading or unloading of freight exceed 30 minutes[.]

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Plaintiff’s vehicle.2 (Doc. 44-1 at 9.)
Pursuant to a contract between the City and Ace Towing, HPD’s
Communications Division notified Ace Towing of the location of Plaintiff’s vehicle,
and instructed Ace Towing to tow the vehicle per its contract. (Doc. 49-1 at 6.) As
instructed, Ace Towing towed Plaintiff’s vehicle from Bethel Street to its impound
yard. (Doc. 49-1 at 6.) Under Ace Towing’s contract, it has no discretion to tow
and the company is fined for failing to tow as instructed. (Doc. 49-1 at 6-7.)
Plaintiff was told by another business operator that his vehicle was
being towed, and Plaintiff witnessed the tow truck leaving Bethel Street with his
vehicle in tow. (Doc. 55-1 at 8.) Plaintiff learned that his vehicle was taken to Ace
Towing’s impound yard, and he went there to retrieve his vehicle. (Doc. 55-1 at 9;
Doc. 1-2 at 10-11, ¶¶ 37, 42, 43.) Plaintiff asked an Ace Towing employee if he
would have an opportunity to contest the tow and whether there was an indigent
release program to retrieve his vehicle. (Doc. 55-1 at 9.) Plaintiff maintains that
he was told to “pay the money or your car will be our car.” (Doc. 55-1 at 9.)
Plaintiff paid $137.50 to retrieve his vehicle. (Id.) Plaintiff also retrieved the
Parking Citation Officer Chung issued to him, Citation No. 1DTP-11-150175, which

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It is uncontested that Officer Chung initiated the tow of Plaintiff’s vehicle under HPD’s “tag-and-go/tag-and-bag”
policy, which provides that when an officer issues a citation and informs the Communications Division of the tow
zone violation, “[i]t is not necessary for the officer to remain at the scene until the vehicle is towed, nor is it necessary
for the officer to complete an inventory form.” (Doc. 56-5 at 3; see Docs. 44-1 at 9; 55-1 at 8-9.)

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alleged that Plaintiff had been parked in a tow away zone, in violation of ROH §
15-14.8. (Doc. 55-1 at 9-10; Doc. 45-2.)
The Parking Citation notified Plaintiff of his right to challenge the
parking violation in the State of Hawaii District Court of the First Circuit (“State
District Court”). (Doc. 45-2 at 2.) Specifically, the Parking Citation notified
Plaintiff of three options he could take with regard to the charged parking infraction:
(1) admit committing the parking infraction and pay the necessary fines; (2) deny
committing the parking infraction by requesting a hearing to contest the infraction in
person or by submitting a written statement explaining the grounds on which the
infraction is contested; or (3) admit committing the parking infraction, but explain
mitigating circumstances in person at a hearing or by written statement. (Doc. 45-2
at 2.) Plaintiff chose to avail himself of the second option, by submitting a written
statement to the State District Court, denying committing the parking infraction.
(See Doc. 45-4 at 1; Doc. 73-4 at 2; Doc. 84-2; Doc. 88-2 at 2-3, ¶ 5.)
In Plaintiff’s written submission to the State District Court, Plaintiff
requested that the court dismiss the Parking Citation because, inter alia, his vehicle
was parked in a commercial loading/unloading zone with the proper “commercial
tags” displayed, and the street signage “was unconstitutionally vague, confusing and
failed to provide reasonable notice.” (Doc. 84-2 at 2.) On December 2, 2011,

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Plaintiff’s submission was reviewed in chambers, and a Judgment was issued
against Plaintiff. (Doc. 73-4 at 2.) On January 9, 2012, Plaintiff requested a trial
de novo. (Doc. 73-4 at 2; see also Doc. 45-4 at 1.)
On May 30, 2012, during pretrial discussions with the Deputy
Prosecutor, the State reached an agreement with Plaintiff, who was then represented
by counsel. (Doc. 56-19 at 2, ¶ 2.) The State agreed to dismiss by nolle prosequi
the one-count Parking Citation and vacate the December 2, 2011 Judgment, and
Plaintiff agreed to forfeit the bond posted to release the registration hold. (Doc.
56-19 at 2, ¶ 2; Doc. 56-19 at 5.) The parties presented the agreement to the State
District Court and the agreement was accepted and ordered. (Id.)
Although Plaintiff did not request reimbursement of his towing
expenses during negotiations with the State, the City has a procedure in place
whereby claimants may submit a claim to recover towing expenses. (See Doc.
73-2.) In order to initiate a claim for towing expenses, a claimant needs to submit a
letter to the Department of the Corporation Counsel for review. (Doc. 73-2 at 3, ¶
9.) A claimant may also submit a claim by using the City’s Standard Claim Form
(Form CC-16), (Doc. 73-6), which lists the types of supporting documents necessary
for the claim. (Docs. 73-2 at 3, ¶¶ 9-10; 73-6, 78-3.) When a claim is submitted,
an acknowledgment letter is generated and sent to the claimant, and the claim is then

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assigned to an investigator. (Doc. 73-2 at 3, ¶ 11.) Once a claim is assigned,
information is requested from the departments involved in the claim. (Id.) After
the pertinent information is received, the claim is referred to the Claims Committee,
which makes the final decision on the claim. (Id.) If a claim is denied, a denial
letter is sent to the claimant. (Doc. 73-2 at 3, ¶ 12.) When a claim has been denied,
claimants are able to resubmit their claim for reconsideration with additional
evidence or reasons why their claim should be granted, and the claim will be
reconsidered. (Id.) Plaintiff did not avail himself of the City’s claim
reimbursement process.
For the reasons discussed below, this Court finds that the process
available to Plaintiff to adjudicate the underlying parking violation and thereafter to
make a claim for reimbursement of the towing expenses satisfies due process
requirements. Accordingly, the Court GRANTS both the City Defendants’ Motion
for Judgment on the Pleadings or in the Alternative, Motion for Summary Judgment
and the Ace Defendants’ Motion to Dismiss and/or for Summary Judgment, and
DENIES Plaintiff’s Motion for Summary Judgment.
STANDARD
I.

Judgment on the Pleadings Standard
FRCP Rule 12(c) provides as follows:

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After the pleadings are closed – but early enough not to delay trial – a
party may move for judgment on the pleadings.
To the extent, however, that “matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for summary judgment
under Rule 56.” FRCP Rule 12(d).
A dismissal on the pleadings under FRCP Rule 12(c) is proper only if
the moving party is clearly entitled to prevail. Doleman v. Meiji Mut. Life Ins. Co.,
727 F.2d 1480, 1482 (9th Cir. 1984). All allegations of the nonmoving party must
be accepted as true, while any allegations made by the nonmoving party that have
been denied are assumed to be false. Pahk v. Hawaii, 109 F. Supp. 2d 1262, 1266
(D. Haw. 2000). Generally, the court is unwilling to grant a dismissal pursuant to
Rule 12(c) unless the movant “clearly establishes that no material issue of fact
remains to be resolved and that he is entitled to judgment as a matter of law.”
McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (internal
quotation marks and citations omitted).
II.

Motions for Summary Judgment
FRCP Rule 56 provides for summary judgment when “the movant

shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FRCP Rule 56(a). The movant bears the
initial burden of “identifying for the court the portions of the materials on file that it
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believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). If the
movant has met its burden, then “the non-moving party must show that there are
genuine factual issues that properly can be resolved only by a finder of fact because
they may reasonably be in favor of either party.” Guillermo v. Hartford Life &
Accident Ins. Co., 986 F. Supp. 1334, 1336 (D. Haw. 1997) (internal quotation
marks and citation omitted). The court must view the evidence in the light most
favorable to the nonmoving party, and where the direct evidence produced by the
moving party conflicts with direct evidence proceeded by the nonmoving party, “the
judge must assume the truth of the evidence set forth by the nonmoving party with
respect to that fact.” T.W. Elec. Serv., Inc., 809 F.2d at 630-31. Inferences from
the facts, disputed and undisputed alike, must be drawn in the light most favorable to
the nonmoving party. Id. at 631.
DISCUSSION
Plaintiff first argues that the City’s Tow Ordinances are
unconstitutional facially and as applied for failing to provide Plaintiff with the right
to notice and the opportunity to be heard at a meaningful time and in a meaningful
manner following the seizure and detainment of his vehicle. (Doc. 55-1 at 23.)
Plaintiff similarly argues that the City’s Tow Ordinances violate the due process

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guarantees of the Hawaii State Constitution as well as the U.S. Constitution for its
alleged failure to provide notice and a meaningful opportunity to be heard. (Doc.
55-1 at 24-25.) Thus, all of Plaintiff’s remaining claims require this Court to
determine whether Plaintiff was afforded sufficient due process, i.e., sufficient
notice and an opportunity to be heard, to contest the government’s decision to tow
and impound his vehicle. As discussed more thoroughly below, this Court finds
that Plaintiff was afforded sufficient due process.
“Due process is a flexible concept, and its procedural protections will
vary depending upon the particular deprivation.” Orloff v. Cleland, 708 F.2d 372,
378 (9th Cir. 1983) (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). A
determination of what procedural requirements are necessary to satisfy due process
in any one situation requires a sensitive inquiry into the competing governmental
and private interests affected. See Mathews v. Eldridge, 424 U.S. 319, 334 (1976).
These include the “private interest that will be affected by the official action;” the
“risk of an erroneous deprivation of such interest” under the existing procedures; the
“probable value, if any, of additional or substitute procedural safeguards;” and
finally, the Government’s interest, including “the function involved and the fiscal
and administrative burdens that the additional or substitute procedural requirement
would entail.” Mathews, 424 U.S. at 335.

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With regard to the private interest affected, it is undisputed that
Plaintiff has an interest in the uninterrupted use and possession of his vehicle. (See
e.g., Doc. 44-1 at 15.) The private interest in the uninterrupted use of an automobile
is significant. Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1324 (9th Cir.
1982). “A person’s ability to make a living and his access to both the necessities
and amenities of life may depend upon the availability of an automobile when
needed.” Stypmann v. City & Cnty. of San Francisco, 557 F.2d 1338, 1342-43 (9th
Cir. 1977). On the other hand, the City has a considerable interest in maintaining
the order and safety of its streets and in promoting the public welfare, and the City’s
ability to efficiently and inexpensively tow illegally parked vehicles is necessary in
furthering those interests.
With regard to the risk of an erroneous deprivation of Plaintiff’s
interest, this Court finds that the City’s towing scheme alleviates any risk associated
with the tow and impoundment of a person’s vehicle by providing a process to
challenge the underlying parking violation and to request reimbursement of any
towing fees incurred where the underlying parking violation is reversed. To the
extent that Plaintiff argues that he was provided “zero due process” before he was
deprived of his vehicle, the Ninth Circuit has previously noted that due process does
not require a pre-towage hearing. See Goichman, 682 F.2d at 1323-24 (citing

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Sutton v. City of Milwaukee, 672 F.2d 644, 648 (7th Cir. 1982)). Thus, the only
question before this Court is whether the process available to challenge the
underlying parking citation, together with the claims reimbursement process
available to claimants who successfully challenge parking citations, is sufficient to
satisfy due process requirements.
This Court finds the Tenth Circuit’s holding in Goichman v. City of
Aspen instructive in this matter. 859 F.2d 1466 (10th Cir. 1988). In that case,
Goichman, the plaintiff, was parked on a public street in the City of Aspen. Id. at
1467. The next day, Goichman discovered that his vehicle had been towed and
impounded because it was parked in violation of the city’s municipal code. Id.
Goichman was informed that he would be required to pay a $20.00 parking fine and
a $40.00 towing fee before his vehicle would be released. Id. Goichman paid the
fine and towing fee. Id. Goichman alleged he was told that no judicial hearing
would be provided to determine whether the towing and impoundment was
appropriate and legal. Id. In addition to the written notice provided on the traffic
citation, Goichman did not contest Aspen’s assertion that persons claiming their
vehicles were advised of their right to contest the citation in court, and if exonerated
of the parking citation, their towing and impound fees would be waived and/or
reimbursed. Id. at 1467 n.3. Goichman, however, elected not to contest the

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underlying parking violation, and instead, brought a 42 U.S.C. § 1983 action
alleging that Aspen had deprived him of personal property without providing for a
judicial hearing, prior to payment for the release of the vehicle, to determine the
legal justification for the seizure and impoundment of the car. Id. at 1467.
The Tenth Circuit held that requiring an individual to post the
equivalent of a bond to cover towing charges and parking fees pending a hearing on
the underlying violation does not violate due process. Goichman, 859 F.2d at 1468.
The Goichman Court further held that inasmuch as the towing ordinance allows for
the towing of illegally parked vehicles, “the validity of the tow, therefore, is
dependent on the validity of the determination that the car in question was found
parked in violation of a traffic regulation.” Id. at 1468 (quoting Cokinos v. Dist. of
Columbia, 728 F.2d 502, 503 (D.C. Cir. 1983)) (internal quotation marks omitted).
Accordingly, the Goichman Court held that “as long as there is an opportunity for a
hearing provided to challenge the underlying violation, due process is served.” Id.
at 1468. This Court is persuaded by the reasoning set forth by the Tenth Circuit.
In this case, the City, acting pursuant to a legitimate exercise of its
police power, enacted parking regulations, which it enforced through the towing of
illegally parked vehicles.3 See Hawaii Revised Statutes (“HRS”) § 46-20.5
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Plaintiff does not contest the City’s authority to enact these regulations, but only argues that they are
unconstitutional for its “total lack of procedural due process rights[.]” (See Doc. 55-1 at 24.)

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(providing that the City “may adopt and provide for the enforcement of ordinances
regulating towing operations”); see also ROH Chapter 15, Articles 13 & 14.
Plaintiff was given adequate notice of the City’s parking regulations, prohibiting the
parking of any unauthorized vehicle in the Bethel Street tow away zone between the
hours of 3:30 – 5:30 p.m., through properly posted signs. (Doc. 45-1 at 2, ¶ 3; Doc.
45-5.) Thus, Plaintiff was on notice that parking his vehicle in the tow away zone at
approximately 5:00 p.m. constituted a violation capable of subjecting him to a fine
and/or the towing of his vehicle. Moreover, the Parking Citation issued to Plaintiff
notified him of his right to contest the underlying parking violation in State District
Court. (Doc. 45-2 at 2.)
Apart from the fact that Plaintiff had notice that he could challenge the
underlying parking violation in State District Court, (Doc. 45-2 at 2), Plaintiff
contends that due process requires that he be afforded a separate process to challenge
the City’s seizure and tow of his vehicle. This Court disagrees. Plaintiff was
given the opportunity to fully challenge the underlying parking violation that was
the basis of the tow, and he utilized that procedure.
In addition to the opportunity to contest the underlying parking
violation that served as the basis of the tow of Plaintiff’s vehicle, the City provides a
claims process whereby Plaintiff could have requested reimbursement from the City

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if the underlying parking violation for which he received the Parking Citation was
determined to be erroneous. (Doc. 45-3 at 3, ¶ 7.) Plaintiff failed to avail himself
of this process.
This Court finds that the reasonable availability of a hearing to
adjudicate the underlying parking violation satisfied the strictures of due process.
See Goichman, 859 F.2d at 1468. As a result, any separate procedure to challenge
the tow and impound of Plaintiff’s vehicle would be completely unnecessary and
inappropriate. Plaintiff’s due process rights were not violated, and therefore, his
section 1983 action cannot lie.
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CONCLUSION
For the foregoing reasons, the Court GRANTS the City Defendant’s
Motion for Judgment on the Pleadings, or in the alternative, Motion for Summary
Judgment; GRANTS the Ace Defendants’ Motion to Dismiss and/or for Summary
Judgment; and DENIES Plaintiff’s Motion for Summary Judgment.
IT IS SO ORDERED
DATED: Honolulu, Hawaii, January 9, 2015.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Schroeder v. Ace Towing Services, Inc., et al., CIV. NO. 13-00706 BMK, ORDER GRANTING
DEFENDANTS’ MOTIONS AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
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