Grimm v. City of Portland (9th Cir. - Jan. 3, 2025)

I think that reasonable minds might well be persuaded by most of the things that Judge Thomas says in her opinion this morning. But its penultimate page -- and the final footnote -- nonetheless seem wrong to me.

Andrew Grimm parked his car on a street in Portland, used a mobile app to pay for a little over an hour of parking, but then left the car there for nearly a week. Predictably, during that week-long period, a slew of parking tickets were issued to the vehicle, all of which piled up under the vehicle's windshield wiper, until eventually the City towed the car. It cost Grimm $500+ to get the vehicle back, so Grimm sued, claiming that the City's seizure of his vehicle failed to comply with procedural due process.

The Ninth Circuit holds that putting numerous tickets on the vehicle, plus a red slip placed under the windshield wiper two days before the vehicle was towed that expressly said that the vehicle would be towed if it wasn't moved, complied with the requirements of procedural due process. You can likely understand why a court might well come to that conclusion, as the district court did when it granted the City's motion for summary judgment and as the Ninth Circuit did when it affirmed that result.

So reasonable minds might well agree on that outcome.

The rub, though, is the Supreme Court's decision in Jones v. Flowers. That case holds that even when the government has attempted to provide constitutionally adequate notice (e.g., there, by sending a certified letter), if the government nonetheless knows that its normally-effective notice did not, in fact, reach the recipient, then due process might well require additional, more extensive efforts at notice before the government may seize the individual's property.

In my view, that's Grimm's best argument. Yes, normally, putting a ticket on an automobile would count as adequate notice. But the tickets on the vehicle piled up for a full week, apparently untouched. That, he says, should have informed the City that he probably didn't receive notice of the tickets, so additional efforts at notice were required under Jones before his property was seized.

Judge Thomas responds to that argument on the next-to-last page of her opinion. She says that even though the tickets were piling up under the windshield wiper, "[v]iewing the evidence in the light most favorable to Grimm, we cannot draw a reasonable inference that the City ever became aware that its attempt to notify him of the impending tow had failed."

Respectfully, I very much disagree.

A reasonable person could easily conclude that it's extremely likely that Grimm never received actual notice that his car was about to be towed; i.e., that he never saw the tickets that were piling up on his vehicle. Indeed, I'm precisely such a reasonable person, and that's definitely my conclusion. Usually, one removes a parking ticket once one receives it. Moreover, almost always, once tickets start piling up on your vehicle, you move the thing. And definitely, almost without exception, once you see a big red sticker under your windshield wiper that says your car will be towed, you drive it away, lest it in fact be towed.

This is my experience. This is pretty much everyone's experience, in my view. Which is why a reasonable jury on these facts would almost certainly conclude that Grimm did not, in fact, receive actual notice of these tickets before his car was towed. Something that the City, which is staffed by a legion of reasonable people, would know as well.

Is is possible that Grimm saw the tickets, read them, put them back, and simply figured "Ah, heck, I'm sure this will turn out just fine for me?" Sure. It's possible. Just like it was possible that, in Jones, the recipient of the letter knew his house was about to be seized but simply neglected to respond. But the fact something is possible doesn't mean that it's likely, and here, a reasonable person would (and surely could) nonetheless conclude that it's far more likely that Grimm did not, in fact, receive actual notice of the tickets and impending tow.

I'll prove it to you. You're presumably a reasonable person, right? I've hooked up Grimm to a foolproof polygraph machine and asked him whether he ever saw the tickets on his vehicle before it was towed, and he gave an accurate answer confirmed by that machine. I'll also give you $100,000 if you correctly guess which way Grimm answered. Which way will you bet? Do you think he got actual notice or not?

(To be clear: This is a hypothetical. I have no such machine, and will never actually give you money.)

I'd predict that 99 out of 100 of you would bet, as I would, that Grimm never saw the tickets, and never knew his vehicle was going to be towed. Maybe he was out of town. Maybe he was on a bender. Maybe he just forgot. But I bet he never saw the tickets, and think that a reasonable jury could definitely agree with me on this one.

So "[v]iewing the evidence in the light most favorable to Grimm," a reasonable jury could indeed draw a reasonable inference that the City, like the rest of us, had reason to know that its attempt to notify him of the impending seizure of his property did indeed fail. Just as in Jones.

Which in turn means that you've got to reach the relevant prong in Jones, which is whether or not there were reasonable alternative means of providing additional pre-deprivation notice to Grimm, beyond the normally sufficient notice provided by the ticket, before the vehicle was towed. Notwithstanding the final footnote of Judge Thomas' opinion, which asserts that "[b]ecause the City did not have actual knowledge that its attempt to provide notice had failed, we do not reach the question whether any additional forms of notice would have been practicable under the circumstances."

I think you have to reach that issue.

Nor is Ninth Circuit precedent to the contrary. It's true that at least one prior case, Clement, said at one point that placing a ticket on a vehicle in some circumstance "can also serve as notice" that the vehicle might be towed. But while it "can" serve as such notice, in can also not serve as such notice, as when (as here) the tickets are simply piling up untouched. (You can think of additional hypotheticals as well; for example, a ticket placed on a vehicle in, say, an evacuated Chernobyl.) Moreover, the Clement case involved a vehicle towed after a single ticket was placed on the vehicle, and the Ninth Circuit held that the ticket did not provide constitutionally adequate notice of the impending tow. It's hard to argue that that prior opinion is somehow inconsistent with a holding that you gotta do more than just pile tickets on a vehicle before you tow it, no matter how easy or feasible it would be to provide additional notice as well. Especially since Clement itself suggested additional ways that it thought would be manifestly reasonable to provide additional notice in that particular case beyond merely sticking a ticket on the car's windshield; i.e., it's suggestion that "the officer might have written a ticket and left it at the front desk of the hotel, with a verbal warning that the car had to be moved or registered."

(Plus, if you really wanted to be consistent with Clement, you'd probably want to at least mention the numerous statements therein that towing someone's vehicle is quite a serious deprivation of property, as opposed to today's statements that the deprivation here was not nearly as significant as the deprivation in Jones. The latter statement is true, but the former are also true, and quite worthy of consideration and mention.) 

The long and short of this is that I think the Ninth Circuit (and the district court) did, in fact, have to consider whether alternative means of providing notice were reasonable here. A test that is not only required by Jones, but is eminently reasonable as well. Imagine, for example, that there was a button on the vehicle -- sort of like OnStar, but for towing -- that the police officer writing the ticket could push to let the owner know that his vehicle was illegally parked and would be towed if unmoved. Surely due process would require that the officer push the button before ordering a tow, right? At least when, as here (and as in Clement), the vehicle's parked in a legal space, not in traffic, not blocking a fire hydrant, etc.

Now, maybe the police officer here didn't have the phone number, or the email address, that Grimm used to initially pay for parking with the mobile app. But the City surely had the registered address for the vehicle owner, as well as the lienholder (who definitely cares if the vehicle is towed). It might have had additional ways of contacting him as well. That's something that might require a remand. But, if so, great. Remand away.

But, to me, it's just not right to say that the City had no reason to know that Grimm never saw the tickets. A reasonable jury could well conclude to the contrary; accordingly, entry of summary judgment on the present record would be inappropriate. You have to investigate the potential alternative means of notice and whether they're reasonable.

In my view, anyway.

Charlie L. v. Kangavari (Cal. Ct. App. - Jan. 2, 2025)

The 2/2 publishes this interesting opinion on 1/2, ringing in the New Year. It creates a split with the Fifth District on an issue that I suspect occurs reasonably often: Whether the pro-defendant medical malpractice provisions of Section 1799.110 apply to emergency room doctors who work outside the E.R. -- here, the radiologists who review x-ray and other medical records off site.

The Fifth District held that they did not, whereas the Court of Appeal here holds that they do.

I'm tentatively going with the Fifth District on this one, notwithstanding Justice Hoffstadt's very good arguments to the contrary.

Section 1799.110 generally makes it more difficult to sue doctors who work in the emergency room, on the theory that we need doctors in that area (so don't want to overly burden them with high malpractice premiums) and that the often frantic nature of work in the E.R. makes the "normal" malpractice rules somewhat inapplicable. That statute clearly applies to, for example, the doctor who's actually working on you in the emergency room.

But what about a consulting radiologist? Radiologists (as I understand their practice, anyway) generally are not actually in the emergency room, but are rather working at their homes or offices, and receive the x-rays or MRI images remotely, review them there, and then relay their results back to the relevant E.R. personnel. Are those doctors equally protected by Section 1799.110?

Today's opinion holds that they are. There's a textual argument for that result (of course), but the basic intent and policy arguments that support that result are that radiologists who support E.R. services, just like the doctors who are physically located there, "must make instantaneous decisions on the diagnosis and treatment of emergency patients without the benefit of time to review [the patient’s] past medical history, seek a consultation, study current medical literature, [or] reflect upon the proper diagnosis and course of treatment.”

That's true, I think. But only to a degree.

The radiologist here was asked for a "stat" consult regarding a three-year old child who was taken to the emergency room in Whittier by his mother. The child, Charlie, "had been in and out of hospitals for conditions related to a malrotated bowel he had at birth," and the question was whether he had a bowel obstruction. If he did, that's a serious issue, and requires treatment. So they took x-rays and an MRI and sent them to an offsite doctor (presumably working out of his home and/or in another time zone, since it was 3:00 a.m.), who read the images and confirmed that there was no bowel obstruction. So they sent the child home.

But the doctor was (allegedly) wrong, and "[s]oon after returning home, plaintiff vomited and turned blue. His parents brought him back to the emergency department at 8:18 a.m., nonresponsive with a faint pulse and not breathing. Plaintiff was transferred to Children’s Hospital Orange County later that morning, where he underwent multiple surgeries over the next three days to remove necrotic tissue and the majority of his small bowel due to a lack of blood flow caused by a bowel obstruction. Plaintiff now suffers “short gut syndrome,” has to be fed with a G-tube, wears diapers at all times, and struggles with speech and other mental and emotional capabilities."

Hence the lawsuit.

The doctor moves for summary judgment, and to keep things (somewhat) brief, the dispositive issue there is whether Section 1799.110 applies. As I said, the Court of Appeal holds here that it does.

I think it's right that the radiologist here was under some degree of time pressure, and didn't have the ability to consult a full medical history, "study current medical literature," and the like. But I'm not sure that this really matters, especially in a case like this. I strongly suspect that radiologists who receive and interpret remote x-ray and MRI images exceptionally rarely rely on a "full medical history" to interpret those images, much less "study current medical literature" in the midst of their interpretation. I imagine that, most of the time, they do precisely what I expect was done here: they get a basic medical history (here, that the patient had a malrotated bowel at birth), rely on their expertise, look at the pictures, and report what, if anything, they see. 

And, critically, they do that exact same thing for both emergency room and non-emergency room images. They're trying to see if a bowel is obstructed, a bone in broken, a heart is swollen, etc. If it is, then that's important, and potentially life-critical. If not, great. It's the same basic task, and the doctor accomplishes it in the same fundamental fashion.

Are there some additional time pressures potentially associated with a "stat" radiology consult? Yes, I suspect. In a way. It definitely means that the doctor can't dilly dally. We need to know the answer fairly rapidly. So it's not like a "regular" x-ray where maybe the doctor can take a day or two to get around to it. Hence the 3:00 a.m. consult here, and why radiologists (like this one) are assigned to be "on call" at all hours of the day and evening.

But that doesn't necessarily mean that an immediate -- or even shortened -- review is required. Here, for example, the child's "X-ray was taken at 3:12 a.m. and Kangavari issued a report based on the images at 3:51 a.m." and the child's "ultrasound was taken at 3:24 a.m. and Kangavari issued another report based on those images at 4:35 a.m." So it took a half-hour to examine and report on the x-ray and over an hour to examine and report on the MRI. I strongly doubt that examining non-ER images takes any different time period; in other words, that the doctor did indeed examine these images as soon as possible ("stat"), but that they nonetheless simply went through the normal review process -- the exact same process applied to non-ER images.

So was there "time pressure" for the doctor's review? Sort of. But not the type of "time pressure" that led to the special provisions of Section 1799.110. What the Legislature was worried about there was that doctors who have to treat patients extremely expeditiously -- e.g., in "meatball surgery" (for those old enough to remember M*A*S*H) -- shouldn't be subjected to the same sort of "second guessing" than "normal" doctors. Hence the special rules. 

But here, there's no shorthand. No different process at all -- or at least none that I can see.

Instead, to take an analogy from my own academic practice, there was indeed "time pressure" -- the same kind of "time pressure" that applies when the Dean instructs you to grade a set of final exams for a graduating senior -- but that doesn't at all mean a different level of review. Do you put those set of 3L exams on the top of the pile? Yes. Just like the radiologist here puts "stat" images at the top of her pile. But the substantive review is the same. There's no shorthand. It's just that one set of documents is more time-urgent than the other. You give them the same review, the same basic time, and the same basic result. If so, it seems unnecessary to give "special protection" to one type of image review over the other. Just like we give the same basic protection to law school grades given to graduating 3Ls and non-graduating 2Ls. One set of exams is more "urgent" than the other, but the same basic rules apply.

Ditto for "stat" car repairs, childhood chores, or the like. Yes, we ask them to fix that car, or take out that trash can, immediately, because we need that car (or the trash truck is coming) tomorrow, so it can't take the weekend. But the substantive standard is the same. So too here, I think.

So if I had to choose, my tentative thought it to go with the earlier Fifth District's opinion on this one. At least in this context. 

I might at least hypothetically imagine different contexts in which I might go the other way. If, for example, there was a patient having an apparent heart attack, and there was a remote consult where the radiologist only had, say, 30 seconds to make a determination of whether it was a blockage as opposed to an aneurysm, okay, maybe that's the kind of time pressure that supports a different standard. We can't expect "normal" procedures and standards to apply in that particular context. Just like, in our world, we would not expect the ordinary standards of lawyerly skill to apply to emergency appellate briefs that we are ordered to prepare and file within 24 hours as opposed to those we have the freedom to prepare over several months.

But in the present case, I'm just not sure that Section 1799.110 rightfully applies.