Opinion
Paul Alexander, Heller Ehrman LLP, Menlo Park, CA, for Plaintiff.
James B. Betts, Betts & Wright, Fresno, CA, Navtej Singh Bassi, California Department
of Transportation, Sacramento, CA, for Defendants.
MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS' MOTION TO CERTIFY CLASS
WANGER, District Judge.
1. INTRODUCTION
This matter comes before the court on Plaintiffs' motion to certify a class pursuant to Fed.R.Civ.P. 23(a) and Fed.R.Civ.P. 23(b). Plaintiffs argue that there are sufficient common questions of fact and law to warrant certification as a class action membership. Defendants oppose Plaintiffs' motion.
2. PROCEDURAL BACKGROUND
Plaintiffs filed their initial complaint on October 17, 2006. (Doc. 1, Complaint.) Plaintiffs filed a second amended complaint (" SAC" ) on March 1, 2007. (Doc. 113, SAC.) On June 15, 2007 Plaintiffs filed a motion to certify class. (Doc. 131, Motion to Certify Class.) On July 2, 2007 Defendants opposed the motion. (Doc. 135, Opposition.) On July 2, 2007 Defendant Will Kempton joined in opposing Plaintiffs' motion. (Doc. 137, Joinder by Will Kempton, July 2, 2007.) On July 11, 2007 Plaintiffs filed their reply. (Doc. 143, Reply.)
3. FACTUAL BACKGROUND
The facts of this case are sufficiently described in other motions. Only a brief summary of the facts is necessary.
This case concerns a number of clean-up operations (sweeps) conducted by Defendants. For more than a year, Defendants implemented a policy of seizing and immediately destroying personal property of homeless individuals in an effort to clean up the City of Fresno. (Doc. 113, SAC, ¶ 38.) A number of these clean up efforts occurred on property belonging to Caltrans, including the raids on May 3, 2006, May 25, 2006, June 22, 2006, and August 26, 2006.
In bringing this action Plaintiffs seek a permanent injunction and declaration of illegality of Defendants' conduct. Secondarily, Plaintiffs seek damages for the losses suffered from seizure and destruction of their property, much of which is common. According to Plaintiffs, the overarching issue of Defendants' liability will involve elements of common proof. The common issues include:
1. whether Defendants' policies and practices in conducting the sweeps at issue are unlawful, in that they result in immediate destruction of property of the homeless;
2. whether Defendants' policies and practices in conducting the sweeps at issue are unlawful in that they fail to provide adequate pre- or post-seizure notice and fail to provide any opportunity to recover seized property;
3. the nature of injunctive relief that should be ordered, including notice requirements, the amount of time allowed to move property, and what must be done with property that is removed; and
4. whether Defendants are liable for statutory and/or punitive damages and if so, how much. (Doc. 131, Motion to Certify Class, Filed June 15, 2007.)
Plaintiffs now seek certification of class members.
4. LAW AND ANALYSIS
A. General Standard for Class Certification
Class certification is governed by Federal Rule of Civil Procedure 23. " When a person sues or is sued as a representative of a class, the court must ... determine by order whether to certify the action as a class action." Fed.R.Civ.P. 23(a)(1). To attain certification, a proposed class must satisfy four pre-requisites set forth in Rule 23(a): (1) the class must be " so numerous that joinder of all members is impracticable," (2) there must be " questions of law or fact common to the class," (3) the claims of the class representatives must be " typical of the claims ... of the class," and (4) class representatives must " fairly and adequately protect the interests of the class." If a proposed class satisfies all four prerequisites of rule 23(a), one of the three alternative requirements set forth in Rule 23(b) must be satisfied as well. Plaintiffs in this case seek certification under Rule 23(b)(2) and Rule 23(b)(3).
Rule 23(b)(2) requires a finding:
[T]hat the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief within respect to the class as a whole.
Rule 23(b)(3) requires a finding:
[T]hat the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
B. Rule 23(a) Analysis
i. Implied Threshold Requirements
In addition to the four requirements set forth explicitly in Rule 23(a), courts often imply two additional, threshold requirements: (a) that a " defined identifiable class exists" and (b) " that the class representatives must be members of the class." Harrington v. City of Albuquerque, 222 F.R.D. 505, 509 (D.N.M.2004). The proposed class satisfies these requirements. Plaintiffs define the proposed class to include,
" All persons in the City of Fresno who were, are, or will be homeless at any time after October 17, 2003, whose personal belongings have been or may in the future be taken or destroyed by one or more Defendants." .
(Doc. 131, Motion for Class Certification, page 7.) All representative Plaintiffs are also members of the class in this case. Named Plaintiffs are individuals who reside in the City of Fresno, were homeless, and allege a loss of property as a result of the City of Fresno's pattern and practice of seizing and immediately destroying homeless peoples' property. All Plaintiffs claimed that they suffered harm during the relevant period beginning on October 17, 2003. Further, all class representatives have submitted declarations detailing the alleged harm they suffered.
( See, Doc. 113, Second Amended Complaint " SAC", ¶ ¶ 49-57, Filed February 22, 2007; See also, Doc. 10, Kincaid Decl.; Doc. 6, Deatherage Decl.; Doc. 5, Clay Decl.; Doc. 8, Greene Decl.; Doc. 7, Garcia Decl.; Doc. 9, Johnson Decl.; Doc. 48, Nelson Decl.; Doc. 13, Williams Decl., all Filed on November 6, 2006.)
Defendants argue that Plaintiffs seek to certify a substantially overbroad and undefined class. It is unclear from Defendants pleadings whether they also argue that Plaintiffs do not meet the threshold requirement that " a defined identifiable class exist" and that " the class representatives must be members of the class." Defendants argue that the term " homeless" used in the definition of the class is ambiguous, making the designation of the class overbroad. In support, Defendants point to testimony given by Ms. Liza Apper at the hearing on the preliminary injunction. Defendants argue that Ms. Apper's definition and the Housing and Urban Development's definition of homeless individuals includes: (1) individuals who live in the street; (2) episodic homeless; and (3) transitional homeless. Defendants further argue that the named Plaintiffs each fall within a small subset of homeless individuals and represent a mere ten percent (10%) of the homeless individuals in Fresno County. However, the definition of the class proposed by Plaintiffs does not depend on the definition of the term " homeless" nor does it seek to include all homeless people in Fresno. Rather, the definition seeks to specifically define a class of homeless individuals in Fresno " whose personal belongings have been or may be in the future taken or destroyed by one or more of the defendants." The proposed definition of the class also provides a time frame to narrow and identify group members who claim to have been harmed after October 17, 2003.
Defendants cite Joyce v. City & County of San Francisco, 846 F.Supp. 843, 851-852 (N.D.Cal.1994) where the court expressed concern of the vagueness of the term " homeless." However, the concern was based on a definition used by the parties in that case who sought to enjoin Defendants for enforcing certain aspects of their " Matrix Program." Id. at 845. The court reasoned that the proposed definition of " homeless" would require " individualized determination whether that person possessed a ‘ fixed, regular, and adequate nighttime residence.’ " Id. at 851. Determining this would make enforcement of the proposed injunction impractical. See, Id. at 853. The concern over the ambiguousness of the proposed definition of " homeless" in Joyce and its relation to the enforcement of a proposed injunction is a different issue from the one presented here, which is whether " a defined, identifiable class exists."
Defendants also argue that there are " far more individuals who are considered homeless because they are living with family and friends than there are homeless living in the street." In support of their argument, Defendants cite to the Continuum of Care study which they argue reveals that only ten percent (10%) of homeless individuals in the Central Valley qualify as homeless. Even if this is true, ten percent(10%) would still constitute a " defined identifiable class" of 800 out of the 8,000 homeless people in Fresno. This is also sufficient to establish numerosity under the first element of Rule 23(a).
In balancing the concerns of both parties, including the different categories of homeless individuals in the City of Fresno, the definition of class members is hereby narrowed to include:
" All persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose personal belongings have been unlawfully taken and destroyed a sweep, raid, or clean up by any of the Defendants."
This definition establishes a defined identifiable class representative of its members who allegedly suffered harm by Defendants' sweeps in which the property of homeless individuals was seized and destroyed.
ii. Numerosity and Impracticability of Joinder
A proposed class must be " so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). The numerosity requirement demands " examination of the specific facts of each case and imposes no absolute limitations." General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Nevertheless, " Plaintiffs must show some evidence of or reasonably estimate the number of class members. Mere speculation as to satisfaction of this numerosity requirement does not satisfy Rule 23(a)(1)." Schwartz v. Upper Deck Co., 183 F.R.D. 672, 681 (S.D.Cal.1999).
In this case, Plaintiffs estimate that over 8,000 residents of Fresno are homeless. ( See, SAC 8:2-14, citing " Fresno Madera Continuum of Care Plan to End Homelessness" (CCP) at 10-11.) Plaintiffs also estimate that at least 98% of this population is unsheltered. Further, Defendants' policy has been implemented in at least 25 sweeps per year since 2004, totaling at least 50 separate sweeps. (Doc. 91, Statement of Decision and Findings Re: Pls.' Application for Prelim. Inj., 13:24-27).
Defendants argue that only 23 claims for damages have been filed with the City by residents purportedly affected by the City's conduct. Based on this evidence, Defendants argue that " there is a substantial question concerning the number of homeless individuals who are living in the street who fall within the scope of the Plaintiffs' class." Defendants claim that Plaintiffs provide no evidence to establish that the number of homeless individuals who have lost their personal belongings is so extensive that class treatment is required.
The findings issued on Plaintiffs' Application for Preliminary Injunction, noted that although Specialist Reynaud Wallace testified that he " did not keep count of all the carts containing the property of the homeless that he has observed being destroyed by the City pursuant to its policy, practice, and pattern," he did estimate " that the number of such destroyed carts containing such property was at least in the hundreds and ‘ countless' over the past two years in the southwest district of the city alone." (Doc. 91, Statement of Decision and Findings Re: Pls.’ Application for Prelim. Inj., 27:66.) Even if only 23 claims for damages have been filed with the City, coupled with direct evidence that seizure and destruction of property is part of a sweep, the frequency of the sweeps conducted by the city, and the number of homeless individuals who have been affected by property seizures, Plaintiffs have satisfied the numerosity requirement of 23(a)(2). Plaintiffs have also established the impracticability of joinder. A court should consider " not only the class size but other factors as well, including the geographic diversity of class members, the ability of individual members to institute separate suits, and the nature of the underlying action and the relief sought." See, Nat'l Ass'n of Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D.Cal.1986). Given Plaintiffs' homeless condition and lack of resources, it is unlikely that they will be able to adjudicate their rights by filing separate suits. Also, Plaintiff class are dispersed throughout the City of Fresno, and many are without a fixed residence or moving between shelters and streets. Identifying and locating Plaintiffs also make joinder impractical. Defendants provide no contrary evidence for impracticability. Given the large number of potential class members, the inability of homeless individuals to institute separate suits, and the potential burden individual suits would place on the judicial system, Plaintiffs have satisfied their burden to show numerosity and impracticability of joinder.
iii. Commonality
Rule 23(a) also demands that " there are questions of law or fact common to the class." It does not require that all questions of law or fact be common to every single member of the class. To satisfy the commonality requirement, plaintiffs need only point to a single issue common to the class. Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1225 (9th Cir.2007); Slaven v. BP Am., Inc., 190 F.R.D. 649, 655 (C.D.Cal.2000). Here, common questions of fact and law arise from Defendants' alleged destruction of Plaintiffs' personal property without notice pursuant to the duly adopted and regularly established practice of the City.
Commonality is generally satisfied where, as in this case, " the lawsuit challenges a system-wide practice or policy that affects all of the putative class members." Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.2001); LaDuke v. Nelson, 762 F.2d 1318, 1332 (9th Cir.1985). Differences in the ways in which these practices affect individual members of the class do not undermine the finding of commonality. Armstrong, 275 F.3d at 868 (finding commonality requirement satisfied despite individual class members having different disabilities, since all suffered similar harm as a result of defendant's actions).
This action involves a challenge to the City of Fresno's pattern and practice of conducting sweeps and allegedly seizing and destroying the personal property of homeless individuals without adequate notice or an opportunity to be heard and the absence of effective pre- or post-deprivation remedies. (Doc. 113, Second Amended Complaint " SAC", ¶ ¶ 38-47; Prelim. Inj. Findings, ¶ ¶ 32-40). Plaintiffs allege that the policy treats all homeless persons and their property the same, and each raid is conducted in a nearly identical fashion. Plaintiffs also claim that the present case includes numerous common issues of law and fact:
1. The nature of Defendants' policies, practices and conduct in conducting these sweeps, including whether Defendants provided adequate notice and whether the sweeps were sufficiently justified;
2. Whether Defendants' policies, practices and conduct violate Class members' state and federal constitutional rights against unreasonable search and seizure;
3. Whether Defendants' policies, practices and conduct violate Class members' due process rights under the California and United States Constitutions;
4. Whether Defendants' conduct violates Class members' rights under California Civil Code Sections 52 and 52.1, California Civil Code Section 2080, California Government Code Section 815.6 and common law tort of conversion;
5. Whether injunctive relief restraining further unconstitutional and unlawful acts by Defendants should be ordered by the court, and, if so, the nature of that injunctive relief.
6. The manner in which Plaintiffs' personal property is seized and destroyed. Defendants do not dispute Plaintiffs' contentions. Instead Defendants argue that Plaintiffs' fail to show how the majority of homeless individuals, or " the remaining ninety percent (90%)," have ever suffered any loss of personal property as part of one of the City's sweeps or relocation efforts. However, " homelessness" alone is not the defining class criterion to make any individual part of the class. Nor do Plaintiffs' so argue. Members of the class will include only homeless individuals " without residence" in the City of Fresno who " at any time after October 17, 2003, [had their] personal belongings ... taken and destroyed by one or more Defendants." Such members of the class share common questions of law and fact in the manner in which the sweeps were carried out, the fact and content of any notice, the seizure and destruction of personal property and whether any pre or post deprivation remedy was afforded.
" The Status of Plaintiffs as homeless is a fact common to the class." Pottinger v. City of Miami, 720 F.Supp. 955, 958 (S.D.Fla.1989).
iv. Typicality
Rule 23(a)(3) demands that " the claims or defenses of the representative parties are typical of the claims or defenses of the class." Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.2001). " Typicality ... is said ... to be satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Id. Under the rule's " permissive standards," representative claims are typical if they are " reasonably co-extensive with those of absent class members; they need to be substantially identical." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998).
Plaintiffs have sufficiently established typicality. The named Plaintiffs have verified under penalty of perjury the truth of the information in their declarations. The preliminary injunction hearing testimony and declarations in the record before the court establish that the named Plaintiffs each present claims based on Defendants' policy of taking and destroying the personal property of homeless individuals in the City of Fresno without adequate notice or an opportunity to be heard or any effective pre or post deposition remedy. Each named Plaintiff and every member of the proposed class allege that they have suffered the deprivation of his or her personal property as a result of this policy and by virtue of their status as living in the streets. The nature of the class and the types of property lost in the raids are very similar and include personal property such as tents, blankets, clothing, medicines and personal effects. (Doc. 113, SAC, ¶ 1.) The class representatives also claim to have suffered the same types of physical and emotional harms that other class members have suffered. Lastly, Plaintiffs claims are also typical with respect to individual defendants. Plaintiffs challenge a uniform policy implemented by the concerted efforts of the City of Fresno and the other named Defendants, including Caltrans employees or Caltrans real property. Based on testimony and evidence in the record, Plaintiffs have sufficiently established their claims are typical of other class members.
See Easter v. Am. West Fin., 381 F.3d 948, 962 (9th Cir.2004) (a plaintiff may be able to satisfy the class requirements where all injuries are the result of a conspiracy or concerted schemes between defendants); In re Textainer P'ship Sec. Litig., 2005 WL 3801596, at 10, 2005 U.S. Dist. LEXIS 40974, at *32 (N.D.Cal.2005) (holding that class certification appropriate where plaintiffs' claims were based on " a method of dealing more or less common to all defendants," )
v. Adequacy of Representation
The final Rule 23(a) prerequisite is satisfied if " the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). " The proper resolution of this issue requires that two questions be addressed: (a) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (b) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir.2000).
Named Plaintiffs represent a diverse and typical cross-section of homeless men and women in Fresno. Moreover, the representative Plaintiffs have demonstrated by their attendance at hearings, testimony, and continued participation in this lawsuit that they will maintain a continuing interest in pursuing the action aggressively and eliminating the oppressive policies to ensure justice is served. See, e.g. Wal-Mart, 474 F.3d at 1235 (" It is reasonable that plaintiffs who feel that their rights have been violated by [defendant's] behavior would want that behavior, and the injustice it perpetuates, to end." ). Plaintiffs have a continuing interest to pursue the action to the fullest.
Plaintiffs' counsel are experienced in class action matters, complex litigation, and the law in this area. They have the resources necessary to prosecute this case. Plaintiffs' counsel have represented the named Plaintiffs from the inception of this case, have appeared before the Court in several proceedings, and have demonstrated to the Court their ability to competently serve as class counsel. Plaintiffs have made a sufficient showing that the plaintiffs, as class representatives, will fairly and adequately protect the interests of the class.
Defendants do not dispute that Plaintiffs have met the adequate representation requirement.
C. Rule 23(b)(2) Requirements
Having satisfied the prerequisites set forth in Rule 23(a), Plaintiffs must also satisfy one of the three provisions of Rule 23(b). Certification under Rule 23(b)(2) is appropriate when the defendant " has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2).
i. Defendants Actions on Grounds Generally Applicable to the Class
Plaintiffs argue that Defendants' policies regarding their treatment of the property of the homeless are generally applicable to the entire class defined.
Defendants rejoin that the over-breadth of the term " homeless" as used in the proposed definition for the class " defeats any contention that the City has acted in a manner applicable to the class generally." According to defendants ninety percent (90%) of the potential class members do not live on the streets and are not at risk of having their property affected. The City further points to their efforts over the past seven months to " acknowledge and respect the personal property rights of the homeless." As a result of these efforts, the City maintains that no injunctive relief will be awarded.
These efforts include:
However, the definition proposed for the class is not focused on the term " homeless," meaning individuals without residence. The focus is on those " without residence" whose personal belongings have been or may be in the future taken or destroyed by one or more of the defendants ... after October 17, 2003." Even assuming arguendo that ninety percent (90%) of the potential class members do not live on the street, ten percent (10%) of 8000 equals 800 and constitutes a significant population of class members that could potentially qualify as members of the proposed class.
Plaintiffs have sufficiently established that Defendants' alleged actions in conducting the raids and their treatment of the property of the Plaintiffs are generally applicable to the proposed class. ii. Adequacy of Final Injunctive Relief
" Class actions certified under Rule 23(b)(2) are not limited to actions requesting only injunctive or declaratory relief, but may include cases that also seek monetary damages." Molski v. Gleich, 318 F.3d 937, 947 (9th Cir.2003). " In other words, in order to permit certification under this rule, the claim for monetary damages must be secondary to the primary claim for injunctive relief." Id. To determine whether money damages predominate, the court should " examine the specific facts and circumstances of each case, focusing predominantly on the plaintiffs' intent in bringing the suit." Wal-Mart, 474 F.3d at 1234.
In bringing this case, Plaintiffs argue that their motive was to seek injunctive relief against Defendants with respect to the class as a whole. Plaintiffs claim that the primary goal of bringing this litigation was to enjoin the Defendants from conducting raids on the City's homeless that resulted in the immediate loss and destruction of their property without notice or an opportunity to be heard.
Defendants to not dispute this. Instead, Defendants argue the injunctive relief will vary between individuals because only ten percent (10%) of the class members are actually homeless. This is not the case since, as previously mentioned, the focus of identifying the class is not whether class members are homeless or how they are individually impacted, but rather that all members who are homeless have suffered confiscation of their property as a result of an unconstitutional pattern or practice by Defendants. Defendants also argue that it is unlikely that Plaintiffs will qualify for a permanent injunction given the City's efforts, over the last several months, to address and resolve the concerns relating to homeless who live on the street. Defendants also point out that Plaintiffs are pursuing recovery for punitive damages, aside from injunctive relief.
However, " Plaintiffs seek preliminary and permanent injunctive relief on behalf of themselves and other homeless persons similarly situated to enjoin defendants from taking and destroying their personal property in violation of their constitutional, statutory and common law rights." (Doc. 113, SAC, Nature of Case, ¶ 4.) To meet the requirements of Rule 23(b)(2) it is not necessary that Plaintiffs qualify for a permanent injunction. It is sufficient that Plaintiffs establish that the primary claim for relief is injunctive relief. Plaintiffs have met this burden under Rule 23(b) (2)
D. Rule 23(b)(3) Requirements
Plaintiffs also seek certification pursuant to the superiority provision of Rule 23(b)(3), which requires:
That the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
i. Predominance
The Rule 23(b)(3) predominance inquiry tests " whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (citation omitted).
Rule 23(b)(3) focuses on the relationship between the common and individual issues. When common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear justification for handling the dispute on a representative rather than on an individual basis.
Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir.2001).
There are numerous common issues that predominate in this case. The dominant common issues in this case relate to the nature of Defendants' policies and practices and the nature and extent of their liability. Specifically, Plaintiffs will establish by common evidence:
(a) The nature of Defendants' policies and practices toward the homeless, including: 1. the nature, timing, and extent of their " sweeps" or " raids" upon the homeless, the immediate seizure and
2. destruction of the property of the homeless,
3. the absence of meaningful notice or opportunity
4. to get out of the way of Defendants' destructive raids,
5. the failure to store any of the seized property,
6. the cost and feasibility of that storage and
7. the inability to retrieve or recover any of the seized personal property
(b) That Defendants' policies, which result in the irrevocable destruction of Plaintiffs' property, are without probable cause and violate Plaintiffs' constitutional rights against unreasonable search and seizure under the Fourth Amendment to the United States Constitution and Article 1, § 13 of the California Constitution;
(c) That Defendants' policies fail to give adequate notice or an opportunity to retrieve property once it has been taken and violate Plaintiffs constitutional rights to Due Process of Law under the Fourteenth Amendment of the United States Constitution and Article 1, § 7(A) of the California Constitution;
(d) That Defendants' policies are intended to single out homeless people, have the purpose and effect of depriving homeless people of their property and driving homeless people from the city of Fresno and are based on Defendants' animus towards this disfavored group and lack a rational relationship to any legitimate government interest and therefore violate Plaintiffs constitutional rights to Equal Protection of the Laws under the Fourteenth Amendment of the United States Constitution and United States Code, Section 1983 and under Article 1, Section 7(A) of the California Constitution;
(e) That Defendants' policies violate California Civil Code Section 2080 et seq. in that, among other things, Defendants have failed to safeguard the personal property of Plaintiffs and members of the plaintiff class found on public land, failed to inform the owners of the personal property within a reasonable time of finding this property, failed to document the property found, and failed to make restitution of the property to its owners or to make arrangements to permit them to retrieve it;
(f) That Defendants' policies violate California Civil Code Section 52.1 because they constitute interference, and attempted interference, by threats, intimidation, and coercion, with Plaintiffs' exercise and enjoyment of rights secured by the Constitutions and laws of the United States and California, in violation of California Civil Code § 52.1, and that as a result of such violations, Defendants are liable to Class Members for statutory damages
(g) Whether and to what extent certain Defendants are liable to the Class for punitive damages, and the amount of punitive damages to which the plaintiff Class is entitled; and
(h) That Defendants' policies constitute an unlawful conversion of Plaintiffs' property by denying Plaintiffs the possession of their property when Plaintiffs were at all relevant times the owners of personal property confiscated and destroyed by defendants and remain entitled to the possession of their personal property.
In contrast to these numerous common issues of fact and of law, individualized issues in this case are limited: whether each plaintiff did, in fact, have property destroyed by the defendants and, if so, calculation of the appropriate compensatory damages. These types of individualized issues-which are present in nearly all class actions-do not defeat class certification under Rule 23(b)(3). See Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439, 447-48 (E.D.Wash.2004). And, since the majority of items taken (e.g., tents, bedding, clothes, personal effects) were common to most, if not all, class members, common evidence may be offered to establish the value of such items. Individual calculation of specific damages can be accomplished by special master. See Local Joint Exec. Bd., 244 F.3d at 1163.
a. Individualized Damages
While individualized proof might be necessary in some exceptional cases, " [c]ourts routinely find Rule 23(b)(3)'s predominance requirement satisfied despite the need for individualized damage determinations when the fact of injury is common." Lockwood Motors, Inc. v. General Motors Corp., 162 F.R.D. 569, 582 (D.Minn.1995); see also Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir.1975) (" The amount of damages is invariably an individual question and does not defeat class action treatment." ) (citation omitted); Local Joint Exec. Bd., 244 F.3d at 1163 (holding that some " variation among individual [plaintiffs], as well as some potential difficulty of proof" was no bar to certification under 23(b)(3) " given the number and importance of common issues" ).
Here, Plaintiffs have sufficiently established that there are a large number of common questions of fact and law which are a significant aspect of the liability case, which can be resolved for all members of the class in a single adjudication.
ii. Superiority of Class Action
To determine whether " a class action is superior to other available methods for the fair and efficient adjudication of the controversy," Fed.R.Civ.P. 23(b)(3), a district court should consider:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action.
Id.
Given Plaintiffs' lack of education, resources, and social acceptance, class members are unlikely to institute separate suits. Since the City started its unlawful sweeps there has been no separate lawsuit filed against the City by a homeless individual other than this case. Homeless individuals are also typically unfamiliar with the federal court system and lack the knowledge and ability to pursue individual separate lawsuits.
The primary relief sought is injunctive relief. To require individual class members to sue separately would be impractical, and an undue burden on the courts. Individual results would result in duplicative, redundant discovery and require multiple courts to analyze the same evidence or the same legal issues. Given the potential size of the class, approximated at 800 individuals on the high end and 40 on the low end, and the relatively minimal compensatory damages, the cost of proving nominal damages in separate trials would outweigh the potential recovery and make individual actions unfeasible.
5. CONCLUSION
Based on the totality of all factors considered. Plaintiffs have established the requisites of Fed.R.Civ.P. §§ 23(a)(1)-(4), 23(b)(2) and (b)(3) and shown that certification of the class is superior to all other methods of adjudication.
Plaintiffs' motion to certify class is GRANTED. The following class definition shall apply:
" All persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose personal belongings have been unlawfully taken and destroyed in a sweep, raid, or clean up by any of the Defendants."
IT IS SO ORDERED.
1. removing garbage from homeless encampments,
2. installing and servicing toilets and garbage bins,
3. assigning full time security to ensure access to the public toilets,
4. drafting a proposed City policy to be implemented to ensure that the City's future conduct in collecting refuse and relocating homeless encampments will protect the constitutional rights of the homeless,
5. and creating a dedicated facility within the City of Fresno to allow homeless individuals living in the street to obtain shelter in a relatively unstructured environment ... with access to social services, toilets, water and garbage removal.(Doc. 135, Opposition, p. 4; see also, Doc. 136, Declaration of K. Trost, ¶ 3) The City also represented at the hearing that it is complying in every respect with the preliminary injunction.