# Oral argument — Stephen Yagman v. Eric Garcetti > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A26853 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** November 9, 2016 ## Text Good morning. Good morning, Judge Newlin, Judge Berzon, Judge Zuhairi. I don't have much argument. I think virtually everything is covered in the briefs, and I rely heavily on my Rule 28J statement in which I— Well, then why didn't you make a motion not to have the argument, if you weren't going to make an argument? Because I think it's bad not to have argument, especially when there's a point I want to make that isn't raised in the briefs, which is I didn't discuss in the briefs the Weiss case as it was decided by the Court of Appeal. And I think that the important point that now remains in this appeal is that under the Weiss case, there never was an initial review of the citation at all because it was an illegal review. It doesn't count. It's null. It's void. And therefore, a fine had to be paid in order to actually get the initial hearing, which was the second hearing sequentially. And I came here to make that point. This was a temporary deprivation of a fairly small dollar amount, right, at which you would then get a refund at the end of it. How does that demonstrate due process violation? I think it demonstrates it because certainly this can be characterized as a parking ticket case where the fine was $68 or $70. But if one looks at the plaintiff's appendix to the opening brief, you will see that this has happened to a huge number of people. And for the calendar year 2004, for example, the amount of money that the City of Los Angeles collected as a result of this process that they used was $156,557. This was filed as a class action. And so it's not a $68 fine. It's enough people paying $68 or $70 fines to total $156 million that goes into the general fund of the city as of the last year for which there was statistical information. And that's the year, the budget for the fiscal year. But in fact, there is an opportunity to have a hearing and get the money back. So I don't see how this increases the amount of money, ultimate amount of money. But it does keep money from the individual for a period of time. Well, it keeps money from the individuals who didn't get the hearing to the tune of $156 million a year. The fine in this case is a punishment, right? I don't know if it is or it isn't because parking fines in California used to be criminal matters. Now they're civil. Whatever it is, though, you can call it civil, but you have to pay money because you did something bad. Otherwise, you would have to pay the money. I don't think it is a punishment if I have to make a guess on that. To be truthful, I think you're better off if it is a punishment in terms of your argument. Well, I might be better off if I still have to tell the truth with regard to what I believe. You don't usually punish people without a hearing. Well, the city goes to great pains to say it's not a punishment. Well, that's why I asked about the temporary deprivation of the fine. So you got cited, and then the city says, okay, if you want to challenge it at some point, you basically put down the amount of the fine, and we'll hold it just for that period of time. I don't know what the length of delay usually is. That makes it sound very nice, we'll hold it for a little bit of time. That puts too nice a face on it. Essentially, the plaintiffs are temporarily deprived of that money, and then if they go to a hearing and prevail, then the city refunds that money, right? So you've got to show a due process violation in that process. So how does that show a due process violation? In the Ninth Circuit, as a case I cited in the brief and I can't find the second, indicates time value of money is compensable and constitutes a due process violation. I never got back the interest on the money. It was gone for about three months. Do you know whether there is a provision, and this is what bothers me the most about the procedure, and I want to know more about it. There's a provision that if you can't afford to pay it, that the agency is supposed to set up a process, so if you can't afford to pay the money, you don't have to pay the money. Is there such a process? Do we have any record about how that operates or if it operates? I have no idea at all. Perhaps my friend, Mr. Sato, can tell you that. I'd like to reserve the five minutes I have left unless there are any other questions right now. Judge Wahre? No. Judge Breslin? No, that's fine. All right. Thank you. May it please the Court, Gerald Sato for the city individual defendants. Can you start with 4215B, the procedures for requesting a waiver of this deposit? I'm sorry. The California Vehicle Code. Go ahead, Judge Breslin. The same question I just asked. That is, there's a provision that says that you're supposed to have a system for waiving the deposit. Does Los Angeles have such a system? The city does not waive. I'm sorry. The opportunity to demonstrate that you have an inability to pay, and so therefore you don't have to put the money up front before you get that hearing. What is that process like? The city does have a process where you can request the fee waiver. There's different standards for showing financial burden of posting the amount of the fine, which in Los Angeles for parking, yes, it would be $65, or if there was some delay in payment, it would be double. What is that process exactly? Is there a form you fill out? Yes. The owner fills out a form and submits it, submits it at the same time that the request for the initial review that we're talking about, or I'm sorry, the request for the administrative hearing is paid. That is, there's no cost at all for the initial review that we're talking about from the complaint. And then if after the administrative hearing, if the owners still does not prevail and so the fine at least becomes final within the city, we also have a way that we can set up installment payments on the fine itself. Or community service. I'm sorry. Go ahead. Or community service in lieu of paying the fines at the end. Community service is another option. I'm not sure that we set up community service, but I do know that we have the easy time payment plan for almost anybody who gets, well, who can't pay the fine. The city just wants to get paid what we work with, however we have to. Your brief, and this is why I was concerned about the case, did not emphasize or did not even rely on the pre-deprivation investigatory investigation, written investigation at all. Is that because of the Weiss case? No, Your Honor. First, if I may, the vehicle code once made, was once phrased in terms of you could request an investigation as part of the initial review. But that was deleted. Well, the initial review. You didn't, as I read your brief, you are arguing that with or without any initial review, because it was a small amount of money, it was okay to take the money and have the hearing later, without any process at the front end. Is that your argument? No. And I cited two, well, their state court of appeals decisions. They described the constitutionality of requiring posting of this amount before the administrative hearing, and they said it was constitutional, complied with due process. They looked at the minimum amount, relatively minimum amount that would have to be posted. You're not answering my question, okay? To me, it makes a big difference whether or not there is some sort of process before you have to pay any money. Right? According to the statute, I gather there is. But, in fact, the Weiss case held that Los Angeles' version was illegal under state law. Am I right so far? No. Well, that was not what the court of appeal held. What the court of appeal held, and if you read the opinion, they say that Mr. Weiss received all the fairness that he was entitled to under the initial review part of the vehicle code. Where the issue came up, I forget now whether this is actually quoted in anything before you, but an issue came up regarding the propriety of attorney's fees under the state's private attorney. Wasn't there a problem with the delegation to third party? Yes. That was really the only issue, substantive issue decided by the court was that the city's practice was not consistent with the vehicle code. But what I wanted to say to Judge Brisson's question, in affirming the attorney's fee award itself, the court of appeal also pointed out that, yes, it was laudable, the amount of fairness, which the initial review process had been shown to Mr. Weiss, but the court of appeal found that there was a public interest for that fee award, just the decision as to who actually had to make the initial review determination. So I think if you read the Weiss opinion, it's throughout there that, at least as to the vehicle code, Mr. Weiss got all the fairness he was entitled to, but the court of appeal held that it was the wrong person making the decision. We petitioned for a review. Our petition has survived a few Wednesdays anyway. That's when the court reviews petitions. I did want to mention, I think somewhere in the appellant's briefs there's a request for leave to amend, and Mr. Yagman has not waited for this court's ruling. He has filed a third lawsuit with the same parties concerning the same parking citations, and in that complaint, and I'm paraphrasing, he's making the argument in that case that the Weiss decision is stare decisis on federal procedural due process and RICO issues. So I would say that the Weiss decision, it's a decision based solely on state law. It was narrowly focused on this question about who actually makes the determination. Does it have to be a city employee, or can the city contract that out, even if the city has the right controls and the right monitoring? That's how the vehicle code is phrased. The city has to monitor, that is, be in control of every step of the process, so that a decision even made at the initial review stage can fairly be said to be the city's decision. Do you have a comment on your opponent's 20HA statement and the case that he brings to our attention and whether it applies to our case, the case he cited as TB v. San Diego Unified School District? I'm sorry. I don't – I really don't have a – Did you read the case? I skimmed it, and yes, I probably should have read it closer, but I don't have – I didn't see where it – What I'm trying to be clear about is your fundamental position, that the government can come to me and say, we think you did something wrong and we want you to pay us the fine for doing this thing that we think you did wrong, and then we'll have some process to figure out whether you did it wrong. Is that your argument? Well, first, the complaint only addressed the initial review, and there's no need to post anything to request that. No, it didn't – No, I'm correcting – But that – but I read your brief as taking the position that with or without the initial review, the government could do what I just explained. I did argue that. That is – Right. That's why I'm asking you – that's your position. With or without any initial review, you can come to somebody and say, you know, I think you did something wrong, give me some money, and then I'll figure out – I'll have somebody other than the person who gave you the ticket look at it. I guess – well, I did phrase it that way. I was trying to emphasize that if you look at those – the two state court appellate opinions we cited – I don't want to know them. I understand. State court appellate opinions are not binding us. I want to know the principled answer to that question. As a general matter, can the government just come and say, essentially, we're going to – you have to – we think you're guilty, so give us some money, and then we'll give you a process after that, any process. And I understand that the process doesn't necessarily have to be a formal hearing, and I think that the argument that an effective initial review is sufficient is probably right. But I don't read your argument as saying that. I read your argument as saying we can just take the money, never do a review until after you give me the money of any kind. Your Honor, I did argue that. And in doing so, I did go a step ahead of – well, I don't want to mention the two state court – the two state opinions we cited, yes, they did find the property interest in this temporary deprivation of the use of the money. But there's a difference. You see, when you have somebody – most of the other cases about property deprivation involve a situation in which the government is giving you something, like a job or a benefit or something, and then stops giving it to you. It seems to me to be somewhat different when they're taking your money from your pocket before they give you – they have any process for demonstrating that they have the right to do that. Any process. Now, I'm not talking about what kind of process. I'm saying any process. Well, I think the cases we cited say that the initial review process, because it doesn't require any money up front, is sufficient process. Well, I understand that. But that's why I wanted to clarify that you're taking the position that this would be valid without that. I think it would be. I can tell you where my thinking came from. That is, I think I'm old enough to remember how parking tickets were adjudicated before it became a civil matter within city administrative process. You would mail in your bail, and you'd show up for a hearing date, and whoever the prosecutor was would go through a whole stack of them that morning and would tell many of you to just go home. They didn't want to go ahead with it. And I see the initial review process as being analogous to that vetting process that used to happen. The real hearing is the administrative hearing. That's where due process, that's where you get your fair hearing before the deprivation becomes final. But there's no money required up front for the initial review. I'm not sure that that's completely responsive, but that's why I argued. I was just trying to be clear about what your position is about whether you could have no process before you take the money. No. My understanding is your answer is, yes, you think they could, but anyway, that isn't what happens. Well, the city does not take money before the initial review. When the initial review itself is completed, the owner is told you have to pay the fine or you can request administration. Do you have any idea how often the initial review results in waiving the ticket? I've seen disputed numbers, but we've had cases where there were statistics that as much as 30 percent of challenges are the citation is dismissed at the initial review stage, and then an even larger number resolved in the owner prevails in the administrative hearing, as Mr. Yagman did. And then I think there's even some still higher number where the owners prevail if they go to a superior court appeal. So I don't think, although this is going outside of the four corners of the pleading, I don't think the evidence would bear out that an initial review is just calling it in. There is a review. Sometimes the problems are obvious. The officer wrote down the wrong license plate or the motorist points out. They have the photographs to show that, no, by God, the car was not in the red, was not by a marked street cleaning sign, something like that. So evidence is considered. The initial review is not an imprimatur. And I think the numbers would ultimately have borne that out. All right. We've taken you over your time. Okay. So unless Judge Roy has additional questions, thank you very much. Thank you, Your Honor. I have four points I'd like to make. First, upon sitting there and reflecting on this, I believe that the matter, the parking adjudication matter, is criminal, not civil. And I base that on a case, I remember, that was authored by Judge Stevens on the Supreme Court that had to do with forfeiture and had to do with some slot machines in Montana, I believe. But I just can't remember the name of that case, and I'll submit it with a 28-J statement because it's easy enough to find on Westlaw. My second point is here there was no initial hearing at all because the hearing that purportedly was held or the examination of it or whatever you want to call it didn't exist as a matter of law. It was not legal. And that's a repeating point I made before. There was no process at all. There was no value. Well, the fact that it isn't legal doesn't mean that you didn't get a review by somebody who, in fact, looked at the material and determined something about it. I mean, we don't know exactly what these people did, I suppose, but the fact that they were not the right people isn't directly relevant to the constitutional issue, is it? I respectfully believe that it is. I believe that it's relevant because if it wasn't ---- Well, it wouldn't be constitutionally invalid to have a third party, would it? It would be better. No. It would be constitutionally invalid to force the payment of the fine to get the first actual review. That's what my argument is. So that's why the invalidity or the nullity of the ---- You're saying that the initial review for which no deposit of money was required is really not a review at all because it was in violation of State law. Right. It doesn't exist. That's what my argument is, and I base that on the Weiss case. I know that ---- You're counting the second administrative review for which you needed to put down the money as the review. Yes, that's correct. Second ---- Third. Third. I'm sorry. The point that was made by Mr. Sato that as to the Weiss case, the court held that the review was fair. In that case, it's irrelevant to any issue insofar as the Weiss case may pertain to this case. The attorney's fees issue in that case was just irrelevant because what the court said was that the city didn't follow the state vehicle code statute that required that the initial review be conducted by the issuing agency as opposed to the processing agency. Mr. Sato made a claim about something that's beyond the record, and it was incorrect, and I don't want it to sit here as correct. Yes, there is a third case, but it's not based on the two parking tickets that are involved in this case. And the third case was filed by me based on a third ticket after the Weiss decision came down. So the legal principle is the same, but the factual predicate is different. Last, there are statistics, and I can provide them if the court wishes in a Rule 28J statement, that until a couple of years ago, excuse me, until a couple of years ago, the initial review resulted in a 50% conviction rate, as it were. And a couple of years ago, the conviction rate went up to 75% because quotas were imposed on the conviction rate with respect to what Xerox Corporation would do concerning the initial hearing. That's all I've got. Any additional questions? All right, thank you very much to both of you for the arguments. You're welcome. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A26853. Public record. Not legal advice.