Opinion
No. C 01-00483 SI
September 22, 2003
JUDGMENT
In accordance with the Court's Order of September 22, 2003, judgment is hereby entered.
IT IS SO ADJUDGED.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Currently pending before this Court are defendants' motion for summary judgment. Having carefully considered the arguments of counsel and the papers submitted, the Court hereby GRANTS the motion for the reasons set forth below.BACKGROUND
Plaintiff Bashir Rahimi ("Rahimi") commenced this action on January 30, 2001, after the City of Pittsburg ("City") declared public nuisances on two of his properties and executed and abatement action by removing vehicles from the properties.
Plaintiff owns property located at 5 Industry Road and at 999 and 1000 Harbor Street in Pittsburg, California. Compl. ¶ 4; Declaration of Cmdr. William Hendricks ("Hendricks Decl.") ¶ 2. In February 1997, the City's Bureau of Code Enforcement ("Bureau") began investigating 5 Industry Road for public nuisance violations. Hendricks Decl. ¶ 3. Several violations were observed, and in August 1999, the Bureau issued a Notice of Public Nuisance to Rahimi and scheduled a pre-abatement hearing for August 31, 1999. Id. at ¶¶ 7-9 and Exs. A-C. Rahimi did not attend the pre-abatement. hearing and was subsequently notified of the findings made at the hearing and advised that abatement action would result if he failed to clean up the property.Id. at ¶ 10 and Ex. D (notice letter dated Sept. 2, 1999). Several inspections were conducted the following year, and according to defendants, Rahimi showed no attempt to abate the public nuisance on his property. Id., at ¶¶ 11-12. Consequently, the City obtained an Abatement Warrant and executed abatement on January 5, 2001.Id. at ¶ 13.
In March 1999, the Bureau of Code Enforcement investigated and observed several public nuisance violations at Rahimi's other property, located at 999 and 1000 Harbor Street. Id. at ¶ 19. On October 13, 2000, Cmdr. William Hendricks met with Rahimi and "gave him formal and final notice" to abate the public nuisance at both properties on Harbor Street and Industry Road by December 1, 2000. Id. at ¶ 20. As discussed above, the Bureau abated 5 Industry Road on January 5, 2001 after it discovered that Rahimi made no attempt to clean up the property. Several continued violations were discovered at the Harbor Street property during a re-inspection on December 20, 2000. Id. at ¶ 21. On December 21, 2000, the City gave Rahimi formal notice of a pre-abatement hearing scheduled for January 4, 2001. Id. at ¶ 23. Rahimi did not attend the pre-abatement hearing, and there is a dispute over why he missed it.
Rahimi alleges that he spoke with Cmdr. Hendricks by telephone "on about December 22, 2000 and certainly before January 3, 2001," to request a continuance of the abatement hearing due to an illness in his family. Compl. ¶ 14-15. According to plaintiff, Cmdr. Hendricks agreed to continue the hearing. Id. at ¶ 15. Cmdr. Hendricks, on the other hand, claims that he did not speak with Rahimi but instead received a voice mail message from Rahimi on January 3, 2001 stating that Rahimi could not "attend the hearing due to a death in the family. Hendricks Decl. ¶ 25. Cmdr. Hendricks made several telephone calls to plaintiffs business and cellular telephone numbers, but was unable to contact him. Id. at f 25. The hearing was held on January 4, 2001 without Rahimi. The City thereafter sent a formal letter to plaintiff on January 8, 2001, detailing its findings and advising plaintiff to abate the nuisance by January 11, 2001 to avoid action by the City. Id. at ¶ 26 and Ex. J. The letter was also posted at the Harbor Street property. Id. at ¶ 26.
Rahimi did not abate the nuisance by the deadline, and on January 18, 2001, the City obtained and executed an Abatement Warrant on the Harbor Street property. Id. at ¶ 27. According to Rahimi, the City towed 19 vehicles from his property to storage at Fernandes Towing Service. Compl. ¶ 17. Rahimi alleges that Fernandes Towing Service will not release the vehicles until he pays towing and storage charges exceeding $3,800. Id. at ¶ 21. Rahimi further claims that Cmdr. Hendricks has refused to grant him a "post-seizure tow lien attachment validity hearing." Id. at ¶¶ 22-24.
In an unrelated series of events also involving Fernandes Towing Service, plaintiff alleges that the towing service unconstitutionally charged him $130 to store a vehicle that was recovered after being reported stolen. Rahimi reported the car stolen to Pittsburg Police on October 30, 2000, and it was recovered by the County of Contra Costa Sheriffs Department on January 25, 2001. Declaration of Sergeant Barry Whitcomb in Support of Opposition to Plaintiffs Motion for a Preliminary Injunction ("Whitcomb Decl.") ¶ 2. Pursuant to California Vehicle Code § 22651(c), the Sheriffs Department had the car towed to Fernandes Towing Service to await pick-up by Rahimi. On January 26, 2001, Rahimi recovered his car and paid $130 in towing and storage fees. On that same day, Rahimi spoke with Nancy White of the Sheriff's Department and requested a post-seizure hearing to recover the $130 he paid. Compl. ¶ 25. Plaintiff complains that he was denied a post-seizure hearing,see id., but the evidence is undisputed that the Sheriffs Department tried to, but could not, contact Rahimi to set up the hearing. Whitcomb Decl. ¶ 2-3.
Rahimi sued the City and several officials including Mayor Frank Quesada, City Attorney Linda Daube and Chief of Police Aaron Baker; Cmdr. Hendricks and Lt. Charles White from the Bureau of Code Enforcement; Fernandes Towing Service and its owner M. Fernandes and an employee Betty Roe; and Sheriff Warren Rupf and Nancy White from the Contra Costa Sheriffs Department. Rahimi alleged 'that defendants deprived him of constitutional due process rights in violation of 42 U.S.C. ¶ 1983 by towing away his vehicles without proper and effective notice and an opportunity to be heard. Compl. ¶ 3. Rahimi also alleged a due process violation by defendants' denial of a post-seizure tow lien attachment validity hearing, and by Sheriff Rupf and Mayor Quesada's improper training of officers. Id.
In April of 2001, plaintiff sought and was denied a preliminary injunction compelling the return of his towed vehicles without the storage and towing fees, refunding the $130 paid to Fernandes Towing Service on January 26, 2001, and prohibiting defendants from continuing to enforce California Civil Code §§ 22852(f) or 22660 "or any other state, county or local law or ordinance which claims to override or supercede the 14th Amendment's Due Process Clause and the rights of towed motorist . . . to a prompt, properly noticed, post seizure hearing." Compl., at p. 15, ¶ 5(c).
Now before the Court is defendants' motion for summary judgment
LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" See T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citingCelotex Corp. v. Catrett, 477 U.S. 317.106 So. 0.317(1986)).
In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party.See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 So. Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980).
DISCUSSION
Defendants bring this motion for summary judgment on the grounds that plaintiff's due process rights were not violated. For plaintiff to prevail on a 42 U.S.C. § 1983 claim based on a violation of procedural due process, he must establish: (1) a liberty or property interest protected by the Constitution; (2) a deprivation of that interest by the government; and (3) the lack of process. Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). It is undisputed that the City of Pittsburg gave plaintiff a notice of pre-abatement hearing in the mail and also posted notices of the hearing at both parcels of land. Exhibits A-C to the Declaration of Commander William Hendricks in Support of Defendants' Motion for Summary Judgment. After the pre-abatement hearing, which plaintiff did not attend, the City sent plaintiff a letter regarding the findings made at the hearing and alerting him that he had a right to appeal the decision within five days. Id. at Exhibit D. Following the hearing and the numerous extensions of time to bring his property into compliance that the City granted plaintiff, the City obtained an application for a warrant to abate the public nuisance. Id. at Exhibit F. This application was approved, at which point the City entered both parcels of land to abate the public nuisance. Id. Whether Rahimi requested a further extension of the final hearing (as he asserts), or not (as defendants assert), he was provided notice in writing of the abatement before it occurred, and failed to take steps to abate the nuisance in any way. Id. at 26 and Exhibit J. As to the $130 in towing fees, no constitutional violation has been made out by plaintiff. This Court agrees with defendants that all of these measures satisfied defendants' procedural due process duty, and that therefore plaintiff has shown no genuine issue of material fact as to whether defendants violated plaintiff s procedural due process. Accordingly, the Court GRANTS defendants' motion for summary judgment.CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's motion for summary judgment.IT IS SO ORDERED.