Morrow et al v. City of San Diego, et al

Filing 147

ORDER denying Plaintiffs' 143 Motion to Certify Class. Plaintiffs fail to meet their burden to show that all requirements in Rule 23(a) are met. They fail to show that their claims are typical of the class or that they will adequately represent the class. Signed by Judge Cynthia Bashant on 6/5/2017. (jah)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 FLOYD L. MORROW, et al., 13 Case No. 11-cv-01497-BAS-KSC Plaintiffs, 14 15 ORDER DENYING MOTION TO CERTIFY CLASS v. 16 [ECF No. 143] CITY OF SAN DIEGO, et al., 17 Defendants. 18 19 20 Plaintiffs move to certify a class of “all persons subjected to the CDBG 21 Proactive Code Enforcement Project (the Project).” (ECF No. 143.) The City of San 22 Diego (“the City”) opposes, arguing the Plaintiffs were not subjected to the Project 23 and are thus not members of the proposed class. (ECF No. 144.) Because the Court 24 finds the named Plaintiffs’ claims are not “typical” of the proposed class and the 25 representation lacks “adequacy,” the Court DENIES Plaintiffs’ Motion for Class 26 Certification (ECF No. 143). 27 // 28 // –1– 11cv1497 1 I. STATEMENT OF FACTS 2 A. 3 As a preliminary matter, Plaintiffs request that the Court take judicial notice 4 of: (1) what purports to be a deposition transcript of Robert Vacchi, (2) several San 5 Diego Municipal Code sections, (3) a pleading labelled “Defendant City of San 6 Diego’s Amended Response to Plaintiff Floyd Morrow’s Interrogatories (Set One),” 7 and (4) memoranda that purport to be from the Deputy Director of the Neighborhood 8 Code Compliance Division to the Community Development Block Grant 9 Coordinator from 2010 and 2011. (ECF No. 143-2.) The City objects to the first and 10 Request for Judicial Notice the last of these items as improper subjects of judicial notice. (ECF No. 144-1.) 11 A court may take judicial notice of “a fact that is not subject to reasonable 12 dispute because it: (1) is generally known within the trial court’s territorial 13 jurisdiction; or (2) can be accurately and readily determined from sources whose 14 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Although the 15 submitted deposition and memoranda are ultimately non-dispositive of the Court’s 16 ruling in this Order, the Court agrees that the requested items are not proper subjects 17 of judicial notice. Thus, the Request for Judicial Notice is DENIED. 18 B. Allegations of Proactive Enforcement 19 In the Fourth Amended Complaint (“4AC”), which is the operative Complaint 20 in this case, Plaintiffs allege that on November 5, 2009, a Memorandum of 21 Understanding (“MOU”) was reached between the Economic Development 22 Division’s Community Development Block Grant (“CDBG”) Program and the 23 Neighborhood Code Compliance Division (“NCCD”) in San Diego. (4AC ¶ 29, ECF 24 No. 47.) “The City purports to be authorized and empowered [by this MOU] to 25 ‘target blight in certain areas’ of the City, including City Heights and other low to 26 moderate income areas, by seeking out and prosecuting property owners and 27 residents in those certain areas.” (Id.) Plaintiffs allege that the City prosecutes only 28 –2– 11cv1497 1 residents in low to moderate income neighborhoods pursuant to the City’s “CDBG 2 Proactive Code Enforcement Project” (Id. ¶ 89.) 3 Plaintiffs claim that throughout the City of San Diego, Defendants typically 4 only investigate and prosecute code violations “reactively,” but with respect to 5 certain census tracts only, Defendants investigate and prosecute these code violations 6 “proactively.” (4AC ¶ 97.) “By targeting residents for ‘proactive’ enforcement only 7 in certain census tracts, Defendants have denied Plaintiffs and all the members of the 8 putative [class] equal protection of the laws.” (Id.) 9 C. Plaintiffs’ Code Violations 10 Although Plaintiffs allege that they “are members of [the putative class] and 11 were, like all [class] members, discriminated against and arbitrarily classified based 12 on wealth” (4AC ¶ 98), the City submits a Declaration of Michael Richmond that 13 states to the contrary. (ECF No. 144-2 (“Richmond Decl.”).) According to Mr. 14 Richmond, he is currently the Deputy Director for the Code Enforcement Division 15 for the City of San Diego, and he was previously the Zoning Investigator for grading 16 violations and environmentally sensitive lands in San Diego. (Id. ¶ 1.) 17 On August 1, 2007, well before any MOU ostensibly targeting low income 18 neighborhoods for blight was signed, Mr. Richmond states he noticed a grading 19 violation on Plaintiffs’ lot. (Richmond Decl. ¶ 2.) He took photographs of what he 20 perceived to be illegal grading. (Id. ¶ 6, Exs. A & B, ECF No. 144-3.) He then 21 referred the grading violations he observed to the City’s NCCD for further 22 investigation and enforcement. (Richmond Decl. ¶10-2.)1 23 Because of heavy case loads, a zoning investigator was not assigned to this 24 reported violation until January 2009. (Richmond Decl. ¶ 11-2.) However, this time 25 26 27 28 1 The paragraphs in Mr. Richmond’s Declaration appear to be misnumbered, resulting in paragraphs with duplicate numbers of 10, 11, and 12. The Court references the second paragraph 10 as 10-2. –3– 11cv1497 1 too was well before any proactive enforcement of blight through the CDBG and 2 NCCD MOU, which was allegedly signed in November 2009. (4AC ¶ 29.) 3 According to Mr. Richmond, “[i]dentification of grading violations in 2009 4 were not, and never have been, considered part of a ‘proactive code enforcement’ 5 program.” (Richmond Decl. ¶ 10.) This is true whether or not the grading violation 6 was or was not in an area that was eventually funded by CDBG revenue for 7 “proactive enforcement.” (Id. ¶ 11.) Furthermore, Mr. Richmond states, “[a]t no 8 time during my employment as a Zoning Investigator and grading expert was my 9 position considered a ‘proactive’ code enforcement position, . . . [n]or was any of the 10 work I performed ever funded by CDBG funds as part of a ‘proactive’ code 11 enforcement program.” (Id. ¶ 13.) 12 II. ANALYSIS 13 A. Requirements for Class Certification 14 The class action is “an exception to the usual rule that litigation is conducted 15 by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. 16 Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700- 17 701 (1979)). In order to justify a departure from that rule, a party seeking class 18 certification must satisfy all the requirements under Federal Rule of Civil Procedure 19 23(a) and at least one of the categories in Rule 23(b). Wang v. Chinese Daily News, 20 Inc., 737 F.3d 538, 542 (9th Cir. 2013); United Steel, Paper & Forestry, Rubber, 21 Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union v. ConocoPhillips Co., 593 22 F.3d 802, 806 (9th Cir. 2010). The party seeking certification must prove that the 23 evidence “more likely than not establishes each fact necessary to meet the 24 requirements of Rule 23.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 25 320 (3rd Cir. 2008). 26 “Rule 23(a) provides four prerequisites that must be satisfied for class 27 certification: (1) the class must be so numerous that joinder of all members is 28 impracticable [numerosity]; (2) questions of law or fact [must] exist that are common –4– 11cv1497 1 to the class [commonality]; (3) the claims or defenses of the representative parties 2 [must be] typical of the claims or defenses of the class [typicality]; and (4) the 3 representative parties [must] fairly and adequately protect the interests of the class 4 [adequacy].” Otsuka v. Polo Ralph Lauren Corp., 251 F.R.D. 439, 443 (N.D. Cal. 5 2008) (citing Fed. R. Civ. P. 23(a)). A plaintiff must also establish that one or more 6 of the grounds for maintaining the suit are met under Rule 23(b). In this case, 7 Plaintiffs seek certification under Rule 23(b)(3), which requires that common 8 questions of law or fact predominate and the class action is superior to other available 9 methods of adjudication. Fed. R. Civ. P. 23(b)(3). 10 The district court must perform a “rigorous analysis” to ensure that all of these 11 prerequisites have been met. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 980 (9th 12 Cir. 2011) (citing General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). 13 Although “it is improper to advance a decision on the merits to the class certification 14 stage,” Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983), “the 15 merits of the class members’ substantive claims are often highly relevant” to the class 16 determination, and “ ‘a district court must consider the merits’ if they overlap” with 17 the Rule 23 requirements, Wang, 737 F.3d at 544 (quoting Ellis, 657 F.3d at 981) 18 (emphasis in original). Thus, the court must resolve any factual disputes relevant to 19 the class certification inquiry. Ellis, 657 F.3d at 983. It is not enough for the court 20 to simply find that the plaintiff has admissible evidence that supports class 21 certification, the court must also find that evidence to be persuasive. Id. at 982. 22 Because this Court finds that Plaintiffs fail to show that they can meet either 23 the “typicality” or the “adequacy” requirements, and that this failure is ultimately 24 dispositive of the class certification motion, the Court addresses these two factors 25 alone. 26 B. Typicality and Adequacy 27 To satisfy Rule 23(a)(3), Plaintiffs’ claims must be typical of the claims of the 28 proposed class. Typicality requires only that the named plaintiffs’ claims “are –5– 11cv1497 1 reasonably coextensive with those of absent class members.” Hanlon v. Chrysler 2 Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). “The test of typicality is whether other 3 members have the same or similar injury, whether the action is based on conduct with 4 is not unique to the named plaintiffs, and whether other class members have been 5 injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 6 497, 508 (9th Cir. 1992) (internal quotation marks omitted). 7 However, “class certification should not be granted if ‘there is a danger that 8 absent class members will suffer if their representative is preoccupied with defenses 9 unique to it.’ ” Hanon, 976 F.2d at 508 (quoting Gary Plastic Packaging Corp. v. 10 Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)). If 11 the named plaintiffs’ “unique background and factual situation requires [them] to 12 prepare to meet defenses that are not typical of the defenses which may be raised 13 against other members of the proposed class,” there is no “typicality.” Id. 14 In addition, “[w]hether the class representatives satisfy the adequacy 15 requirement depends on the qualifications of counsel for the representatives, an 16 absence of antagonism, a sharing of interests between representative and absentees, 17 and the unlikelihood that the suit is collusive.” Rodriguez v. Hayes, 591 F.3d 1105, 18 1125 (9th Cir. 2010). 19 Plaintiffs in this case seek to certify a class of individuals subjected to the 20 CDBG Proactive Code Enforcement Project that they allege was begun with an MOU 21 in November 2009. (4AC ¶ 29.) However, real questions have been raised in this 22 case as to whether the named Plaintiffs were subjected to this Project. Mr. Richmond 23 submits a declaration that Plaintiffs’ zoning problems began in 2007 and were never 24 the result of any proactive code enforcement. Plaintiffs, in response, offer no 25 competent evidence to contradict this declaration. In their Reply, they highlight that 26 their Fourth Amended Complaint is verified and “alleges [they] were, in fact, 27 subjected to ‘proactive’ enforcement under the Project.” (ECF No. 145 at 1:23–25.) 28 But the two paragraphs Plaintiffs cite to in their Reply are alleged on information and –6– 11cv1497 1 belief, and the verification appended to their pleading excludes “those matters which 2 are therein alleged on information and belief.” (4AC ¶¶ 19, 29, Verification.) Thus, 3 these allegations do not contradict Mr. Richmond’s declaration. See, e.g., Columbia 4 Pictures Indus., Inc. v. Prof’l Real Estate Inv’rs, Inc., 944 F.2d 1525, 1529 (9th Cir. 5 1991); Taylor v. List, 880 F.2d 1040, 1045 n. 3 (9th Cir. 1989); Hardy v. 3 Unknown 6 Agents, 690 F. Supp. 2d 1074, 1084 (C.D. Cal. 2010). 7 Moreover, regardless of whether or not Mr. Richmond’s statements are true, 8 his declaration raises unique defenses that would not be applicable to class members 9 who were clearly subjected to the Proactive Code Enforcement Project after 10 November 2009. Because the named Plaintiffs will necessarily have unique factual 11 circumstances that will require them to meet defenses that are not typical of other 12 potential class members, their claims are not typical, and the motion for class 13 certification must fail. 14 Furthermore, Plaintiffs’ counsel offers no evidence of her qualifications to 15 represent the class in this case. And, as discussed above, the named Plaintiffs’ unique 16 defenses could put them in a situation where they are willing to compromise the 17 interests of the class because they may not have been subjected to the Proactive Code 18 Enforcement Project at issue. Hence, the Court finds the adequacy requirement is 19 also not satisfied. 20 III. CONCLUSION 21 Plaintiffs fail to meet their burden to show that all the requirements in Rule 22 23(a) are met. Specifically, they fail to show that their claims are typical of the class 23 or that they will adequately represent the class. Therefore, the Court DENIES 24 Plaintiffs’ Motion for Class Certification (ECF No. 143). 25 IT IS SO ORDERED. 26 27 DATED: June 5, 2017 28 –7– 11cv1497

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