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East Bay Community Law Center
1 Candy Smallwood, State Bar No. 289492
2 csmallwood@ebclc.org
Shazzy Kamali, State Bar No. 340070
3 skamali@ebclc.org
2921 Adeline Street
4 Berkeley, CA 94703
510-269-6697
5
6 Attorneys for Petitioner Michele Horner
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8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
10 FOR THE COUNTY OF ALAMEDA
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12
MICHELE HORNER, an individual Case No.
13
Petitioner
14 VERIFIED PETITION FOR
v.
WRIT OF MANDATE
15
CITY OF BERKELEY, a municipal
(Code of Civil Procedure §§ 1094.5; 1085)
16 corporation
17 Respondent
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PETITION FOR WRIT OF MANDATE
1 I. INTRODUCTION
2 1. This is a petition for a writ of mandate under Code of Civil Procedure §§ 1094.5 and
3 1085. Petitioner Michele Horner is a woman with disabilities who is a resident of the YMCA in
4 Berkeley. She owns a gray 2012 Toyota Siena, which she uses as her personal vehicle.
5 2. On July 8, 2022, officers with the Berkeley Police Department ordered her vehicle
6 towed, even though the car was legally parked at 2001 Allston Way.
7 3. On July 8, 2022, Ms. Horner’s vehicle was towed under CA VC § 5204(a) for expired
8 tabs. However, her vehicle should not have been impounded for expired tabs because she was on a
9 payment plan to get her vehicle registered.
10 4. Furthermore, when Ms. Horner went to the Berkeley Police station, she was told that
11 she was not eligible for a tow hearing.
12 5. Ms. Horner then received a call from an employee of the Police Traffic bureau
13 reiterating that she was ineligible for a tow hearing because she was towed for expired registration.
14 6. Ms. Horner now challenges the factual and legal bases for the tow, as well as the lack
15 of due process she was afforded. Ms. Horner has a statutory right to a tow hearing and Berkeley Police
16 denied her this right. Ms. Horner has exhausted all her administrative remedies and has no other
17 remedy except through this action.
18 II. PARTIES
19 7. Petitioner Michele Horner is a woman with disabilities who is a resident of the YMCA
20 in Berkeley. She owns a gray 2012 Toyota Siena which she uses as her personal vehicle.
21 8. Respondent City of Berkeley (“City”) is a municipal entity with the capacity to sue and
22 be sued. It is a Charter City under the laws of the State of California. Employees of the City have
23 engaged in the acts complained of herein pursuant to the policies, practices, and customs of the City.
24 9. Petitioner is informed and believes and thereon alleges that at all times mentioned
25 below, each respondent was the principal, agent, representative, partner, or coconspirator of the
26 remaining respondents, and each other, and that in doing the acts alleged, each of the respondents
27 were acting within the course and scope of their agency, employment, partnership, conspiracy, or
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PETITION FOR WRIT OF MANDATE
1 other authorized relationship with the other respondents and with the permission and ratification of
2 respondents, such allegations and references shall also be deemed to mean the acts of each respondent
3 acting individually, jointly or severally.
4 III. STATUTORY SCHEME
5 10. Under California Vehicle Code § 22852(a), “whenever an authorized member of a
6 public agency directs the storage of a vehicle” as authorized by the chapter, “the agency or person
7 directing the storage shall provide the vehicle’s registered and legal owners of record, or their agents,
8 with the opportunity for a poststorage hearing to determine the validity of the storage.” A hearing
9 must be requested within ten days of the date appearing on the notice of the tow, and then the hearing
10 must be within 48 hours, excluding weekends and holidays.
11 11. Under California Vehicle Code, a person must be given an opportunity for poststorage
12 hearing after a tow unless an exception applies. CA VC § 22852. There are several very limited
13 exceptions for the tow hearing requirement, which are listed in CA VC § 22852(f): “This section does
14 not apply to vehicles abated under the Abandoned Vehicle Abatement Program pursuant to CA VC
15 §§ 22660 to 22668 inclusive, and 22710, or to vehicles impounded for investigation pursuant to CA
16 VC § 22655, or to vehicles removed from private property pursuant to CA VC § 22658.” The
17 Abandoned Vehicle Abatement Program does not require tow hearings for vehicles impounded for
18 suspected involvement in a hit-and-run, vehicles removed from private property, and abandoned
19 vehicles determined to be less than $500.
20 IV. STATEMENT OF FACTS
21 12. Michele Horner is a woman with disabilities and currently resides at the YMCA in
22 Berkeley. Michelle has a debilitating degenerative bone disease in her left leg that has affected her
23 ability to move since she was a child. She is on a fixed income of SSDI ($1,028/month), food stamps
24 ($200/month), and MediCal/Medicare.
25 13. At the time of the events relevant to this petition, she drove a gray 2012 Toyota Sienna.
26 The car was in good running condition and had passed the smog certification required for the car. The
27 car was also insured. Due to her condition, Ms. Horner relied on the vehicle for most of her mobility.
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PETITION FOR WRIT OF MANDATE
1 14. On the morning of July 8, 2022, a traffic officer (Badge #605) with the Berkeley Police
2 Department requested Ms. Horner’s vehicle be towed by East Bay Tow Inc., which contracts with the
3 City of Berkeley to tow vehicles at the instruction of the Berkeley Police Department.
4 15. The stated reason for the tow was that the registration on her vehicle had expired under
5 California Vehicle Code § 5204(a).
6 16. At the time the vehicle was towed, the City of Berkeley had placed a registration hold
7 on Ms. Horner’s vehicle with the DMV after Ms. Horner accumulated Berkeley parking tickets. As a
8 result, Ms. Horner was told she unable to update her registration with the DMV until she paid her
9 Berkeley parking tickets.
10 17. However, on June 16, 2022, before her car was towed, Ms. Horner applied for an
11 indigent parking ticket payment plan with the City of Berkeley Traffic Citation center to pay off her
12 tickets and update her vehicle’s registration. On June 22, the City of Berkeley confirmed her
13 enrollment in the indigent parking ticket payment plan. Nevertheless, a few weeks later, the Berkeley
14 police Department towed her vehicle for expired registration.
15 18. At the time the vehicle was towed, it was legally parked at 2001 Allston Way, along
16 with several other vehicles. The car was not obstructing traffic in any way or violating any parking
17 restrictions.
18 19. On July 13, 2022, Ms. Horner spoke with “Julie” an employee of Berkeley Traffic
19 Citation Center to discuss Ms. Horner’s progress for the indigent payment plan and the issue of her
20 towed vehicle. Ms. Horner was told that her application had not progressed far because of a backlog at
21 the Citation Center. Ms. Horner was then told that she should contact the Berkeley Police Traffic
22 Bureau and that she would be able to request a tow hearing. Ms. Horner was told that the hearing
23 would lead to her being released from tow fees. Ms. Horner called the Berkeley Police Traffic Bureau
24 and there was no answer.
25 20. On July 13, 2022, Ms. Horner requested an administrative hearing to challenge the tow
26 by going to the Berkeley Police Department in person, which she was entitled to under CA VC §
27 22852(a). Despite being within 14 days of the tow, Berkeley Police Department refused to give Ms.
28 Horner a tow hearing.
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PETITION FOR WRIT OF MANDATE
1 21. That same day, Ms. Horner was then called by “Shelly” an employee with the Berkeley
2 Police Traffic Bureau. “Shelly” told Ms. Horner that she is not entitled to a tow hearing because the
3 reason for the tow was due to an expired registration, even though an expired registration is not under
4 one of the limited exceptions for tow hearings under CA VC § 22852(f). Once again, Ms. Horner was
5 told by the Berkeley Police Department that she was not entitled to a to hearing.
6 22. Furthermore, on July 14, 2022, East Bay Community Law Center attorney Shazzy
7 Kamali sent a letter to the Berkeley Police Traffic Bureau, arguing that Ms. Horner has a right to a
8 tow hearing and that Ms. Horner’s vehicle should not have been impounded for expired registration
9 because she was on a payment plan to get her vehicle registered. See Exhibit A and B.
10 23. No reason in writing was issued for the denial of the request, and Ms. Horner was told
11 her only option was to pay her parking tickets and her registration in full to get her car back.
12 24. As a result of the tow, Ms. Horner faced several charges stemming from the tow,
13 including $220.00 for the tow itself, $680.00 in storage fees, and $70.00 lien processing fee. On July
14 15, 2022, Ms. Horner paid the total of $970.00 and secured the release of her vehicle. See Exhibit C.
15 25. Furthermore, because Ms. Horner was denied a hearing, she cannot appeal any
16 negative outcome from the hearing by submitting a writ to challenge the decision. She has filed a tort
17 claim, so she has exhausted all of her administrative remedies.
18 V. ADMINISTRATIVE MANDAMUS CLAIMS- C.C.P. §§ 1094.5, 1085
19 26. Petitioner re-alleges and incorporates by reference each allegation set forth in
20 paragraphs 1-26.
21 27. Mandamus is authorized under California Code of Civil Procedure §§ 1094.5, 1085.
22 28. The City of Berkeley’s denial of Ms. Horner’s request for a tow hearing is invalid for
23 the following reasons:
24 a. The denial of the tow hearing was a violation of the Due Process Clause of
25 the Fifth and Fourteenth Amendments of the United States Constitution,
26 which requires government officials to follow fair procedures before
27 depriving a person of life, liberty, or property.
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PETITION FOR WRIT OF MANDATE
1 b. The findings of fact do not support the determination that the tow was valid
2 because she is enrolled in a payment plan to pay the expired parking tickets,
3 which created the registration hold on her vehicle.
4 c. The City of Berkeley denied Ms. Horner a tow hearing in violation of
5 California Vehicle Code § 22852(a).
6 Petitioner is entitled to a writ of mandate under the Code of Civil Procedure §§ 1094.5,
7 1085 commanding respondents to provide Ms. Horner a tow hearing, and to reimburse Ms. Horner for
8 the tow.
9 VI. PRAYER FOR RELIEF
10 WHEREFORE, Petitioner prays that this Court enter judgment in her favor and against
11 each respondent on all counts and
12 a. Issue a writ of mandate ordering respondents to provide Ms. Horner a tow
13 hearing;
14 b. Award petitioner the reimbursement of all costs associated with the tow;
15 c. Award Ms. Horner’s attorneys reasonable attorney fees, pursuant to Welfare
16 and Institutions Code § 10962;
17 d. Award Ms. Horner costs and such other and further relief the court deems
18 reasonable and necessary.
19
20 October 7, 2022
Dated: _________________
21
22 By: ____________________________________
23 Shazzy Kamali
24 East Bay Community Law Center
25 Attorneys for Petitioner, Michele Horner
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PETITION FOR WRIT OF MANDATE
7
EXHIBIT A
8
PETITION FOR WRIT OF MANDATE
Thursday, October 6, 2022 at 10:35:56 Pacific Daylight Time
Subject: RE: Tow Hearing Request
Date: Friday, July 15, 2022 at 9:52:15 AM Pacific Daylight Time
From: BPD Webmail
To: Shazzy Kamali
ADachments: image002.png, image003.png, image004.png, image005.png, image006.png, image007.png,
image008.png
Good morning,
Do you know who they spoke to at the Traffic Bureau so I can forward this email accordingly?
Thanks,
Officer Jessica Perry #16
Area 2 Coordinator/ PIO
Community Services Bureau
Direct: (510) 990-2901
24-Hour Dispatch: (510) 981-5900
Visit our Community Services Bureau Webpage!
Berkeley Police Department
2100 Martin Luther King Jr. Way
Berkeley, CA 94704
Follow us on:
From: Shazzy Kamali
Sent: Thursday, July 14, 2022 3:00 PM
To: BPD Webmail
Subject: Tow Hearing Request
WARNING: This is not a City of Berkeley email. Do not click links or a]achments unless you trust the sender and know the
content is safe.
Hello,
Our client Michele Horner’s vehicle was towed on July 8th, license plate CA6WTR344, for expired registraaon.
Yesterday, July 13, she spoke to a representaave from the Berkeley Police Traffic Bureau and to someone at
the front desk of the police staaon who informed her she is not enatled to a tow hearing. The a]ached
demand le]er explains why Michele has a statutory right to a tow hearing and why her vehicle should not
have been impounded because she was already on a payment plan to get her vehicle registered.
I understand that you cannot release informaaon to me without a signed release form from Michele Horner.
Because of logisacal challenges with the nature of remote work, I cannot provide this at this ame. Please
reach out to Michele Horner directly at (707) 354-3549.
Thank you,
Shazzy Kamali
9 Page 1 of 2
PETITION FOR WRIT OF MANDATE
Shazzy Kamali
Shazzy Kamali (she/her/hers)
Brian Lewinstein Youth JusRce Fellow
Clean Slate
Phone: (510) 269-6692
Pronouns: She/her/hers
East Bay Community Law Center| A Clinic of
Berkeley Law School
Jusace Through Educaaon and Advocacy
1950 University Ave., Ste.#200, Berkeley, CA, 94704
CONFIDENTIALITY NOTE: This message and any files or text a]ached to it may contain informaaon that is
private, confidenaal, and/or protected by a]orney-client or other privilege. If you are not an intended
recipient, please delete all copies of it from your system and noafy me by reply email.
This email provides legal informaaon or a referral only, which shall not create an a]orney-client relaaonship
between you and the East Bay Community Law Center. Due to the limited and short-term nature of the brief
service provided, it is not possible for EBCLC to systemaacally screen for conflicts of interest as is generally
required. EBCLC will keep your inquiry and contact informaaon confidenaal.
10 Page 2 of 2
PETITION FOR WRIT OF MANDATE
EXHIBIT B
11
PETITION FOR WRIT OF MANDATE
July 14, 2022
Berkeley Police Traffic Bureau
2100 Martin Luther King Jr Way
Berkeley, CA 94704
To Whom It May Concern:
Michele Horner has a statutory right to a tow hearing for the tow of her vehicle CA license plate
6WTR344. Her vehicle was towed on July 8, 2022 for expired tabs under CA VC § 5204(a).
Moreover, Michele Horner’s vehicle should not have been impounded for expired registration
because she was on a payment plan to get her vehicle registered.
The tow hearing requirement is defined broadly by statute and none of the statutory
exceptions apply.
Under CA VC § 22852(a), “whenever an authorized member of a public agency directs
the storage of a vehicle” as authorized by the chapter, “the agency or person directing the storage
shall provide the vehicle's registered and legal owners of record, or their agents, with the
opportunity for a poststorage hearing to determine the validity of the storage.” Michele’s vehicle
was towed by a public agency, the Berkeley Police Department, and she is thus entitled to an
opportunity for a poststorage hearing. The exceptions for the tow hearing requirement are for
vehicles towed under the Abandoned Vehicle Abatement Program, vehicles impounded for
suspected involvement in a hit-and-run, vehicles removed from private property, and abandoned
vehicles determined to be less than $500. 1 Michele’s car was not cited for any of these offenses:
her car was cited under CA VC § 5204(a). The Berkeley Police Department did not cite her
under any of the statutes that are specified as exceptions under CA VC § 22852 (f) or (g).
California Vehicle Code establishes that people must be given an opportunity for poststorage
hearing after a tow unless an exception applies, and none of the exceptions apply.
Michele’s car was not towed under the Abandoned Vehicle Abatement Program
exception, and even if it was, it would mean that according to Berkeley Municipal Code, Michele
is entitled to a hearing. The Abandoned Vehicle Abatement Program as described in the
California Vehicle Code establishes an authority by which counties and cities can establish their
1
“This section does not apply to vehicles abated under the Abandoned Vehicle Abatement Program pursuant to
Sections 22660 to 22668, inclusive, and Section 22710, or to vehicles impounded for investigation pursuant to
Section 22655, or to vehicles removed from private property pursuant to Section 22658.” CA VC § 22852(f); “This
section does not apply to abandoned vehicles removed pursuant to Section 22669 that are determined by the public
agency to have an estimated value of five hundred dollars ($500) or less.” CA VC § 22852(g).
1950 University Avenue, Suite 200, Berkeley, CA 94704
t 510.548.4040 f 510.849.1536 www.ebclc.org
12
PETITION FOR WRIT OF MANDATE
own laws and authorities for addressing abandoned vehicles.2 The City of Berkeley then passed
their own municipal laws for abating abandoned vehicles pursuant to the state-wide Abandoned
Vehicle Abatement Program. 3 Berkeley’s municipal laws state that anyone who has their car
abated by the City must be issued a Notice to Abate and a hearing if the hearing is requested. 4 If
Michele’s car was abated by the City pursuant to the Abandoned Vehicle Abatement Program,
she must have been issued a Notice to Abate and an opportunity to be given a hearing. If
Michele’s car was not abated by the City pursuant to the Abandoned Vehicle Abatement
Program, no exception to the tow hearing requirement applies and Michele must be given the
opportunity to have a tow hearing.
Michele is not only entitled to a tow hearing, but she should also win because she is enrolled
in a payment plan to pay off the parking tickets which created the registration hold.
The City of Berkeley placed a registration hold on Michele’s vehicle with the DMV after
Michele accumulated parking tickets. As a result, Michele cannot update her registration with the
DMV until she pays her Berkeley parking tickets. Michele is a person with disabilities and living
on a fixed income. Nevertheless, last month, before her car was towed, Michele signed up for an
indigent parking ticket payment plan with the City of Berkeley to pay off her tickets and get her
vehicle registered. The City of Berkeley has stringent requirements and only people who meet
federal standards of poverty or receive public benefits (which involve extensive background
checks into financial status) are eligible. Michele met these standards and the City of Berkeley
confirmed her enrollment in the indigent parking ticket payment plan. A few weeks later, the
Berkeley Police Department towed her vehicle for expired registration. Michele’s vehicle was
not registered was because of unpaid parking tickets, and she was on a payment plan for those
parking tickets and thus should not have been towed.
Michele should not be penalized because different departments in the City of Berkeley do
not communicate. In fact, City of Berkeley customer service urged Michele to get a tow hearing
as soon as she could. When her vehicle was towed, Michele was taking affirmative steps to
address her vehicle registration and doing everything she could to be in compliance with the law
notwithstanding her financial and mobility challenges.
Finally, Michele simply cannot afford to pay her vehicle registration to get her vehicle
back. The City of Berkeley has told her that if she pays her vehicle registration, she will be taken
off the indigent payment plan, as the City of Berkeley will correctly deduce that someone who
can pay that lump sum is not indigent. Michele was on a payment plan to get her vehicle
registered, and thus should not have had her vehicle impounded.
2
CA VC § 226600 to 226688 and Section 22710.
3
Chapter 12.98 of Berkeley Municipal Code, “Abandoned, Dismantled, or Inoperative Vehicles”
4
BMC 12.98.040(D) and BMC 12.98.04(E).
1950 University Avenue, Suite 200, Berkeley, CA 94704
t 510.548.4040 f 510.849.1536 www.ebclc.org
13
PETITION FOR WRIT OF MANDATE
Thank you for your consideration. Please call me at (510) 269-6692 or email
skamali@ebclc.org if you have any questions for me. I understand that you cannot release any
information to me without a release form from Michele Horner. Because of logistical challenges
with the nature of remote work, I am not able to provide that at this time. However, Michele
Horner can be reached directly at (707) 354-3549.
Sincerely,
Shazzy Kamali
Brian Lewinstein Youth Justice Fellow
Clean Slate
1950 University Avenue, Suite 200, Berkeley, CA 94704
t 510.548.4040 f 510.849.1536 www.ebclc.org
14
PETITION FOR WRIT OF MANDATE
EXHIBIT C
15
PETITION FOR WRIT OF MANDATE
16
PETITION FOR WRIT OF MANDATE
EXHIBIT C
Preview
East Bay Community Law Center 1 Candy Smallwood, State Bar No. 289492 2 csmallwood@ebclc.org Shazzy Kamali, State Bar No. 340070 3 skamali@ebclc.org 2921 Adeline Street 4 Berkeley, CA 94703 510-269-6697 5 6 Attorneys for Petitioner Michele Horner 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 10 FOR THE COUNTY OF ALAMEDA 11 12 MICHELE HORNER, an individual Case No. 13 Petitioner 14 VERIFIED PETITION FOR v. WRIT OF MANDATE 15 CITY OF BERKELEY, a municipal (Code of Civil Procedure §§ 1094.5; 1085) 16 corporation 17 Respondent 18 19 20 21 22 23 24 25 26 27 28 1 -1- PETITION FOR WRIT OF MANDATE 1 I. INTRODUCTION 2 1. This is a petition for a writ of mandate under Code of Civil Procedure §§ 1094.5 and 3 1085. Petitioner Michele Horner is a woman with disabilities who is a resident of the YMCA in 4 Berkeley. She owns a gray 2012 Toyota Siena, which she uses as her personal vehicle. 5 2. On July 8, 2022, officers with the Berkeley Police Department ordered her vehicle 6 towed, even though the car was legally parked at 2001 Allston Way. 7 3. On July 8, 2022, Ms. Horner’s vehicle was towed under CA VC § 5204(a) for expired 8 tabs. However, her vehicle should not have been impounded for expired tabs because she was on a 9 payment plan to get her vehicle registered. 10 4. Furthermore, when Ms. Horner went to the Berkeley Police station, she was told that 11 she was not eligible for a tow hearing. 12 5. Ms. Horner then received a call from an employee of the Police Traffic bureau 13 reiterating that she was ineligible for a tow hearing because she was towed for expired registration. 14 6. Ms. Horner now challenges the factual and legal bases for the tow, as well as the lack 15 of due process she was afforded. Ms. Horner has a statutory right to a tow hearing and Berkeley Police 16 denied her this right. Ms. Horner has exhausted all her administrative remedies and has no other 17 remedy except through this action. 18 II. PARTIES 19 7. Petitioner Michele Horner is a woman with disabilities who is a resident of the YMCA 20 in Berkeley. She owns a gray 2012 Toyota Siena which she uses as her personal vehicle. 21 8. Respondent City of Berkeley (“City”) is a municipal entity with the capacity to sue and 22 be sued. It is a Charter City under the laws of the State of California. Employees of the City have 23 engaged in the acts complained of herein pursuant to the policies, practices, and customs of the City. 24 9. Petitioner is informed and believes and thereon alleges that at all times mentioned 25 below, each respondent was the principal, agent, representative, partner, or coconspirator of the 26 remaining respondents, and each other, and that in doing the acts alleged, each of the respondents 27 were acting within the course and scope of their agency, employment, partnership, conspiracy, or 2 -2- PETITION FOR WRIT OF MANDATE 1 other authorized relationship with the other respondents and with the permission and ratification of 2 respondents, such allegations and references shall also be deemed to mean the acts of each respondent 3 acting individually, jointly or severally. 4 III. STATUTORY SCHEME 5 10. Under California Vehicle Code § 22852(a), “whenever an authorized member of a 6 public agency directs the storage of a vehicle” as authorized by the chapter, “the agency or person 7 directing the storage shall provide the vehicle’s registered and legal owners of record, or their agents, 8 with the opportunity for a poststorage hearing to determine the validity of the storage.” A hearing 9 must be requested within ten days of the date appearing on the notice of the tow, and then the hearing 10 must be within 48 hours, excluding weekends and holidays. 11 11. Under California Vehicle Code, a person must be given an opportunity for poststorage 12 hearing after a tow unless an exception applies. CA VC § 22852. There are several very limited 13 exceptions for the tow hearing requirement, which are listed in CA VC § 22852(f): “This section does 14 not apply to vehicles abated under the Abandoned Vehicle Abatement Program pursuant to CA VC 15 §§ 22660 to 22668 inclusive, and 22710, or to vehicles impounded for investigation pursuant to CA 16 VC § 22655, or to vehicles removed from private property pursuant to CA VC § 22658.” The 17 Abandoned Vehicle Abatement Program does not require tow hearings for vehicles impounded for 18 suspected involvement in a hit-and-run, vehicles removed from private property, and abandoned 19 vehicles determined to be less than $500. 20 IV. STATEMENT OF FACTS 21 12. Michele Horner is a woman with disabilities and currently resides at the YMCA in 22 Berkeley. Michelle has a debilitating degenerative bone disease in her left leg that has affected her 23 ability to move since she was a child. She is on a fixed income of SSDI ($1,028/month), food stamps 24 ($200/month), and MediCal/Medicare. 25 13. At the time of the events relevant to this petition, she drove a gray 2012 Toyota Sienna. 26 The car was in good running condition and had passed the smog certification required for the car. The 27 car was also insured. Due to her condition, Ms. Horner relied on the vehicle for most of her mobility. 3 -3- PETITION FOR WRIT OF MANDATE 1 14. On the morning of July 8, 2022, a traffic officer (Badge #605) with the Berkeley Police 2 Department requested Ms. Horner’s vehicle be towed by East Bay Tow Inc., which contracts with the 3 City of Berkeley to tow vehicles at the instruction of the Berkeley Police Department. 4 15. The stated reason for the tow was that the registration on her vehicle had expired under 5 California Vehicle Code § 5204(a). 6 16. At the time the vehicle was towed, the City of Berkeley had placed a registration hold 7 on Ms. Horner’s vehicle with the DMV after Ms. Horner accumulated Berkeley parking tickets. As a 8 result, Ms. Horner was told she unable to update her registration with the DMV until she paid her 9 Berkeley parking tickets. 10 17. However, on June 16, 2022, before her car was towed, Ms. Horner applied for an 11 indigent parking ticket payment plan with the City of Berkeley Traffic Citation center to pay off her 12 tickets and update her vehicle’s registration. On June 22, the City of Berkeley confirmed her 13 enrollment in the indigent parking ticket payment plan. Nevertheless, a few weeks later, the Berkeley 14 police Department towed her vehicle for expired registration. 15 18. At the time the vehicle was towed, it was legally parked at 2001 Allston Way, along 16 with several other vehicles. The car was not obstructing traffic in any way or violating any parking 17 restrictions. 18 19. On July 13, 2022, Ms. Horner spoke with “Julie” an employee of Berkeley Traffic 19 Citation Center to discuss Ms. Horner’s progress for the indigent payment plan and the issue of her 20 towed vehicle. Ms. Horner was told that her application had not progressed far because of a backlog at 21 the Citation Center. Ms. Horner was then told that she should contact the Berkeley Police Traffic 22 Bureau and that she would be able to request a tow hearing. Ms. Horner was told that the hearing 23 would lead to her being released from tow fees. Ms. Horner called the Berkeley Police Traffic Bureau 24 and there was no answer. 25 20. On July 13, 2022, Ms. Horner requested an administrative hearing to challenge the tow 26 by going to the Berkeley Police Department in person, which she was entitled to under CA VC § 27 22852(a). Despite being within 14 days of the tow, Berkeley Police Department refused to give Ms. 28 Horner a tow hearing. 4 -4- PETITION FOR WRIT OF MANDATE 1 21. That same day, Ms. Horner was then called by “Shelly” an employee with the Berkeley 2 Police Traffic Bureau. “Shelly” told Ms. Horner that she is not entitled to a tow hearing because the 3 reason for the tow was due to an expired registration, even though an expired registration is not under 4 one of the limited exceptions for tow hearings under CA VC § 22852(f). Once again, Ms. Horner was 5 told by the Berkeley Police Department that she was not entitled to a to hearing. 6 22. Furthermore, on July 14, 2022, East Bay Community Law Center attorney Shazzy 7 Kamali sent a letter to the Berkeley Police Traffic Bureau, arguing that Ms. Horner has a right to a 8 tow hearing and that Ms. Horner’s vehicle should not have been impounded for expired registration 9 because she was on a payment plan to get her vehicle registered. See Exhibit A and B. 10 23. No reason in writing was issued for the denial of the request, and Ms. Horner was told 11 her only option was to pay her parking tickets and her registration in full to get her car back. 12 24. As a result of the tow, Ms. Horner faced several charges stemming from the tow, 13 including $220.00 for the tow itself, $680.00 in storage fees, and $70.00 lien processing fee. On July 14 15, 2022, Ms. Horner paid the total of $970.00 and secured the release of her vehicle. See Exhibit C. 15 25. Furthermore, because Ms. Horner was denied a hearing, she cannot appeal any 16 negative outcome from the hearing by submitting a writ to challenge the decision. She has filed a tort 17 claim, so she has exhausted all of her administrative remedies. 18 V. ADMINISTRATIVE MANDAMUS CLAIMS- C.C.P. §§ 1094.5, 1085 19 26. Petitioner re-alleges and incorporates by reference each allegation set forth in 20 paragraphs 1-26. 21 27. Mandamus is authorized under California Code of Civil Procedure §§ 1094.5, 1085. 22 28. The City of Berkeley’s denial of Ms. Horner’s request for a tow hearing is invalid for 23 the following reasons: 24 a. The denial of the tow hearing was a violation of the Due Process Clause of 25 the Fifth and Fourteenth Amendments of the United States Constitution, 26 which requires government officials to follow fair procedures before 27 depriving a person of life, liberty, or property. 5 -5- PETITION FOR WRIT OF MANDATE 1 b. The findings of fact do not support the determination that the tow was valid 2 because she is enrolled in a payment plan to pay the expired parking tickets, 3 which created the registration hold on her vehicle. 4 c. The City of Berkeley denied Ms. Horner a tow hearing in violation of 5 California Vehicle Code § 22852(a). 6 Petitioner is entitled to a writ of mandate under the Code of Civil Procedure §§ 1094.5, 7 1085 commanding respondents to provide Ms. Horner a tow hearing, and to reimburse Ms. Horner for 8 the tow. 9 VI. PRAYER FOR RELIEF 10 WHEREFORE, Petitioner prays that this Court enter judgment in her favor and against 11 each respondent on all counts and 12 a. Issue a writ of mandate ordering respondents to provide Ms. Horner a tow 13 hearing; 14 b. Award petitioner the reimbursement of all costs associated with the tow; 15 c. Award Ms. Horner’s attorneys reasonable attorney fees, pursuant to Welfare 16 and Institutions Code § 10962; 17 d. Award Ms. Horner costs and such other and further relief the court deems 18 reasonable and necessary. 19 20 October 7, 2022 Dated: _________________ 21 22 By: ____________________________________ 23 Shazzy Kamali 24 East Bay Community Law Center 25 Attorneys for Petitioner, Michele Horner 26 27 28 29 6 -6- PETITION FOR WRIT OF MANDATE 7 EXHIBIT A 8 PETITION FOR WRIT OF MANDATE Thursday, October 6, 2022 at 10:35:56 Pacific Daylight Time Subject: RE: Tow Hearing Request Date: Friday, July 15, 2022 at 9:52:15 AM Pacific Daylight Time From: BPD Webmail To: Shazzy Kamali ADachments: image002.png, image003.png, image004.png, image005.png, image006.png, image007.png, image008.png Good morning, Do you know who they spoke to at the Traffic Bureau so I can forward this email accordingly? Thanks, Officer Jessica Perry #16 Area 2 Coordinator/ PIO Community Services Bureau Direct: (510) 990-2901 24-Hour Dispatch: (510) 981-5900 Visit our Community Services Bureau Webpage! Berkeley Police Department 2100 Martin Luther King Jr. Way Berkeley, CA 94704 Follow us on: From: Shazzy Kamali Sent: Thursday, July 14, 2022 3:00 PM To: BPD Webmail Subject: Tow Hearing Request WARNING: This is not a City of Berkeley email. Do not click links or a]achments unless you trust the sender and know the content is safe. Hello, Our client Michele Horner’s vehicle was towed on July 8th, license plate CA6WTR344, for expired registraaon. Yesterday, July 13, she spoke to a representaave from the Berkeley Police Traffic Bureau and to someone at the front desk of the police staaon who informed her she is not enatled to a tow hearing. The a]ached demand le]er explains why Michele has a statutory right to a tow hearing and why her vehicle should not have been impounded because she was already on a payment plan to get her vehicle registered. I understand that you cannot release informaaon to me without a signed release form from Michele Horner. Because of logisacal challenges with the nature of remote work, I cannot provide this at this ame. Please reach out to Michele Horner directly at (707) 354-3549. Thank you, Shazzy Kamali 9 Page 1 of 2 PETITION FOR WRIT OF MANDATE Shazzy Kamali Shazzy Kamali (she/her/hers) Brian Lewinstein Youth JusRce Fellow Clean Slate Phone: (510) 269-6692 Pronouns: She/her/hers East Bay Community Law Center| A Clinic of Berkeley Law School Jusace Through Educaaon and Advocacy 1950 University Ave., Ste.#200, Berkeley, CA, 94704 CONFIDENTIALITY NOTE: This message and any files or text a]ached to it may contain informaaon that is private, confidenaal, and/or protected by a]orney-client or other privilege. If you are not an intended recipient, please delete all copies of it from your system and noafy me by reply email. This email provides legal informaaon or a referral only, which shall not create an a]orney-client relaaonship between you and the East Bay Community Law Center. Due to the limited and short-term nature of the brief service provided, it is not possible for EBCLC to systemaacally screen for conflicts of interest as is generally required. EBCLC will keep your inquiry and contact informaaon confidenaal. 10 Page 2 of 2 PETITION FOR WRIT OF MANDATE EXHIBIT B 11 PETITION FOR WRIT OF MANDATE July 14, 2022 Berkeley Police Traffic Bureau 2100 Martin Luther King Jr Way Berkeley, CA 94704 To Whom It May Concern: Michele Horner has a statutory right to a tow hearing for the tow of her vehicle CA license plate 6WTR344. Her vehicle was towed on July 8, 2022 for expired tabs under CA VC § 5204(a). Moreover, Michele Horner’s vehicle should not have been impounded for expired registration because she was on a payment plan to get her vehicle registered. The tow hearing requirement is defined broadly by statute and none of the statutory exceptions apply. Under CA VC § 22852(a), “whenever an authorized member of a public agency directs the storage of a vehicle” as authorized by the chapter, “the agency or person directing the storage shall provide the vehicle's registered and legal owners of record, or their agents, with the opportunity for a poststorage hearing to determine the validity of the storage.” Michele’s vehicle was towed by a public agency, the Berkeley Police Department, and she is thus entitled to an opportunity for a poststorage hearing. The exceptions for the tow hearing requirement are for vehicles towed under the Abandoned Vehicle Abatement Program, vehicles impounded for suspected involvement in a hit-and-run, vehicles removed from private property, and abandoned vehicles determined to be less than $500. 1 Michele’s car was not cited for any of these offenses: her car was cited under CA VC § 5204(a). The Berkeley Police Department did not cite her under any of the statutes that are specified as exceptions under CA VC § 22852 (f) or (g). California Vehicle Code establishes that people must be given an opportunity for poststorage hearing after a tow unless an exception applies, and none of the exceptions apply. Michele’s car was not towed under the Abandoned Vehicle Abatement Program exception, and even if it was, it would mean that according to Berkeley Municipal Code, Michele is entitled to a hearing. The Abandoned Vehicle Abatement Program as described in the California Vehicle Code establishes an authority by which counties and cities can establish their 1 “This section does not apply to vehicles abated under the Abandoned Vehicle Abatement Program pursuant to Sections 22660 to 22668, inclusive, and Section 22710, or to vehicles impounded for investigation pursuant to Section 22655, or to vehicles removed from private property pursuant to Section 22658.” CA VC § 22852(f); “This section does not apply to abandoned vehicles removed pursuant to Section 22669 that are determined by the public agency to have an estimated value of five hundred dollars ($500) or less.” CA VC § 22852(g). 1950 University Avenue, Suite 200, Berkeley, CA 94704 t 510.548.4040 f 510.849.1536 www.ebclc.org 12 PETITION FOR WRIT OF MANDATE own laws and authorities for addressing abandoned vehicles.2 The City of Berkeley then passed their own municipal laws for abating abandoned vehicles pursuant to the state-wide Abandoned Vehicle Abatement Program. 3 Berkeley’s municipal laws state that anyone who has their car abated by the City must be issued a Notice to Abate and a hearing if the hearing is requested. 4 If Michele’s car was abated by the City pursuant to the Abandoned Vehicle Abatement Program, she must have been issued a Notice to Abate and an opportunity to be given a hearing. If Michele’s car was not abated by the City pursuant to the Abandoned Vehicle Abatement Program, no exception to the tow hearing requirement applies and Michele must be given the opportunity to have a tow hearing. Michele is not only entitled to a tow hearing, but she should also win because she is enrolled in a payment plan to pay off the parking tickets which created the registration hold. The City of Berkeley placed a registration hold on Michele’s vehicle with the DMV after Michele accumulated parking tickets. As a result, Michele cannot update her registration with the DMV until she pays her Berkeley parking tickets. Michele is a person with disabilities and living on a fixed income. Nevertheless, last month, before her car was towed, Michele signed up for an indigent parking ticket payment plan with the City of Berkeley to pay off her tickets and get her vehicle registered. The City of Berkeley has stringent requirements and only people who meet federal standards of poverty or receive public benefits (which involve extensive background checks into financial status) are eligible. Michele met these standards and the City of Berkeley confirmed her enrollment in the indigent parking ticket payment plan. A few weeks later, the Berkeley Police Department towed her vehicle for expired registration. Michele’s vehicle was not registered was because of unpaid parking tickets, and she was on a payment plan for those parking tickets and thus should not have been towed. Michele should not be penalized because different departments in the City of Berkeley do not communicate. In fact, City of Berkeley customer service urged Michele to get a tow hearing as soon as she could. When her vehicle was towed, Michele was taking affirmative steps to address her vehicle registration and doing everything she could to be in compliance with the law notwithstanding her financial and mobility challenges. Finally, Michele simply cannot afford to pay her vehicle registration to get her vehicle back. The City of Berkeley has told her that if she pays her vehicle registration, she will be taken off the indigent payment plan, as the City of Berkeley will correctly deduce that someone who can pay that lump sum is not indigent. Michele was on a payment plan to get her vehicle registered, and thus should not have had her vehicle impounded. 2 CA VC § 226600 to 226688 and Section 22710. 3 Chapter 12.98 of Berkeley Municipal Code, “Abandoned, Dismantled, or Inoperative Vehicles” 4 BMC 12.98.040(D) and BMC 12.98.04(E). 1950 University Avenue, Suite 200, Berkeley, CA 94704 t 510.548.4040 f 510.849.1536 www.ebclc.org 13 PETITION FOR WRIT OF MANDATE Thank you for your consideration. Please call me at (510) 269-6692 or email skamali@ebclc.org if you have any questions for me. I understand that you cannot release any information to me without a release form from Michele Horner. Because of logistical challenges with the nature of remote work, I am not able to provide that at this time. However, Michele Horner can be reached directly at (707) 354-3549. Sincerely, Shazzy Kamali Brian Lewinstein Youth Justice Fellow Clean Slate 1950 University Avenue, Suite 200, Berkeley, CA 94704 t 510.548.4040 f 510.849.1536 www.ebclc.org 14 PETITION FOR WRIT OF MANDATE EXHIBIT C 15 PETITION FOR WRIT OF MANDATE 16 PETITION FOR WRIT OF MANDATE EXHIBIT C