Brandi Garris et al v. City of Los Angeles

OPPOSITION, REQUEST FOR LEAVE FILE LATE OPPOSITION OPPOSITION re: NOTICE OF MOTION AND MOTION to Certify Class 38

C.D. Cal.January 5, 2018

1 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MICHAEL N. FEUER, City Attorney (SBN 111529) No Fee Required Gov’t Code § 6103 CRAIG TAKENAKA, Managing Assistant City Attorney (SBN 128898) DEBORAH BREITHAUPT, Deputy City Attorney (SBN 170206) OFFICE OF THE LOS ANGELES CITY ATTORNEY City Hall East, 200 North Main Street, Suite 916 Los Angeles, CA 90012-4130 Telephone: (213) 978-7965/Facsimile: (213) 978-7957 Email: Deborah.breithaupt@lacity.org Attorneys for Defendants City of Los Angeles and Los Angeles Housing and Community Investment Department, f/k/a Los Angeles Housing Department (all referred to as the “City”) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BRANDI GARRIS, JOHN SWITZER and JASON TEAGUE, Plaintiffs, vs. CITY OF LOS ANGELES and LOS ANGELES HOUSING AND COMMUNITY INVESTMENT DEPARTMENT, f/k/a LOS ANGELES HOUSING DEPARTMENT, Defendants. _____________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.2:17-CV-01452 MWF (Ex) DEFENDANT CITY OF LOS ANGELES OPPOSITION TO CLASS CERTIFICATION MOTION; FEDERAL RULE OF CIVIL PROCEDURE 6(b) GOOD CAUSE-EXUSABLE NEGLECT REQUEST TO FILE LATE OPPOSITION; DECLARATION; EXHIBITS Hearing: January 22, 2018 Time: 10 a.m. Court: First Street Courthouse, 5A A. REQUEST FOR LEAVE TO FILE LATE OPPOSITION. Rule 6(b)(B) of the Federal Rule of Civil Procedure (“FRCP”) states when an act must be done within a specified time, the Court may, for good cause and on motion made after the time has expired, extend the time to file papers if a party Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 1 of 13 Page ID #:1057 2 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 failed to act because of excusable neglect. The instant Motion was filed on December 14, 2017 making the Opposition due on January 1, 2018 (21 days later per Central District Local Rule 7-9). Judicial notice under Rule 201 of the Fed. Rules of Evidence (“FRE”) is requested that January 1, 2018 is a legal holiday under FRCP 6(a)(6)(A). The Opposition due date was therefore extended to January 2, 2018. Defendant City of Los Angeles (“City”) respectfully filed it Opposition three days late (around 1:00 a.m.) on January 5, 2018 and requests leave to file this brief based upon good cause excusable neglect arising from the relocation of defense counsel’s office from City Hall East to City Hall one week early, on January 2, 2018, instead of January 8, 2018. Declaration of Breithaupt ¶¶ 1-3. Because the relocation occurred earlier than planned and without prior notice, defense counsel could not timely complete the Opposition because the allocated work time was consumed with helping movers, computer and printers were not working, and LEXIS was down. Id. Plaintiffs oppose this Opposition despite an offer to request a briefing extension and/or change in the hearing date and the lack of objection of any late filed reply. Declaration of Breithaupt ¶ 4. No prejudice can realistically be shown by Plaintiffs. For all of these reasons, it is requested that the Opposition be considered. B. ARGUMENT SUMMARY AND RELEVANT SCEP AMENDMENTS. Judicial notice is requested under FRE 201 of the Court’s Orders from the pleading stage of this case detailing adjudicative facts and law of this case relevant to this Motion. Exhibits 1, 2. Since these Orders contain most of the facts necessary to decide this Motion, and for judicial economy, the City respectfully relies upon same rather than rehashing these matters. Landlord Plaintiffs Brandi Garris and Jason Teague and Plaintiff Renter John Switzer allege a facial Section 1983 Fourth Amendment municipal fee payer Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 2 of 13 Page ID #:1058 3 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 challenge to the Systematic Code Enforcement (“SCEP”) Ordinance (Exhibit 3, LAMC §§ 161.101 et. seq.) as enacted during the past two years. Plaintiffs Article III injury arises only from their payment of annual SCEP fees that supposedly funds illegal inspections. The Court noted Plaintiffs “…do not allege that they were ever subject to warrantless, nonconsensual inspection of their property or fines under the Ordinance”. Exhibit 2, pg. 2, ¶ 3. Excluded from the Motion are administrative warrant and exigent circumstance inspections.” Moving Papers 1:23-25. The Court dismissed the damage claim and recovery has been limited to injunctive relief via the political process. Exhibit 2, pg. 2, ¶ 3. Consistent therewith is that the remedy in a municipal taxpayer action is “ending the unconstitutional spending practice” through legislative. Exhibit 2, pg. 25, ¶ 3. Without conceding any unconstitutional ordinance, judicial notice is requested that on November 5, 2017 (Exhibit 3, pg. 3), (1) The last paragraph in LAMC § 161.601 (Exhibit 3, pg. 12; Exhibit 4, pg. 1) was amended to remove potentially problematic language as to unconsented inspections when there is “reasonable cause to belief the building or dwelling unit is so hazardous, unsafe or dangerous as to require immediate inspection to safeguard the public health or safety…” (Exhibit 2, pg. 5, last bullet; pg. 6, 4th bullet; Exhibit 3, pg. 12), and (2) The Complaint Inspection Ordinance (LAMC § 161.603) was amended to state inspectors must obtain consent or other legal process before inspecting a rental unit. See Exhibit 3, pg. 12, Sec. 3. The aforesaid curative amendments, coupled with the exclusion of exigent circumstance and warrant inspections from the Motion, leaves only Periodic Inspections and Complaint Inspections at issue. Under LAMC § 161.601 (Exhibit 3, pg. 12) these inspections (Periodic and Complaint) are conducted only with Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 3 of 13 Page ID #:1059 4 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consent or by seeking legal recourse to gain lawful entry. Since LAMC § 161.601 and § 161.603 now mandate consent or other legal process as defined by law, the Doremus good faith standard for municipal fee payer standing no longer exists. The Moving Papers purports reliance upon the Patel and “Bulacan line of cases” (Motion 2:10-12) is unavailing to support certification because no briefing was provided. The Motion wrongly states the Motion “perfectly” aligns with the Court’s Order (Motion 4:22-23) as to Patel as “The Court disagrees in several respects that the outcome of this case is determined wholly by Patel.” Exhibit 2, pg. 15, ¶ 2, second sentence. The Motion states two facial challenges are claimed (pg. 1, lines 21-23) but only one ordinance is identified (i.e., LAMC § 161.603, erroneously identified as 116.603 at pg. 2, line 18) reflecting a lack of due process notice. The Court has never ruled on the constitutionality of the SCEP Ordinance as suggested and the Motion offers no evidence showing a nexus that SCEP Fees actually fund Complaint Inspections despite completing discovery. Certainly no prospective funding of this nature could be contended given the above amendments. Based upon all of the aforesaid factors, this Motion should be denied with prejudice. C. ARGUMENT. 1. The ‘Roadmap To Class Certification’ Lacks Foundation. A plaintiff challenging the validity of a law on its face must establish that no set of circumstances exists under which the act would be valid. Exhibit 2, pg. 13, ¶ 5; United States v. Peeples, 630 F.3d 1136, 1138 (2010). Here, the Motion has no briefing or evidence showing that all of the relevant scenarios of Periodic and Complaint Inspections are unconstitutional in all of their applications. Instead a conclusory liability theory is offered that seems to conflict with the law of the case and is not based upon any plausible reading of SCEP nor competent evidence. The Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 4 of 13 Page ID #:1060 5 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 citation to the City’s interrogatory response of conducting over 33,000 SCEP inspections (meaning only Periodic Inspections) during the last three-year period does not support the conclusion that these inspections were non-consensual. Such contention reflects conjecture; inadmissible hearsay without an exception (FRE 802, 803); hearsay within hearsay (FRE 805); is lacking in any offer of proof that the hearsay declarant is unavailable (FRE 804); and is impermissible opinion testimony (FRE 701). On these grounds, the Motion should be denied. 2. No Good Faith Fee Payor Injury Supports The Motion. Article III subject matter jurisdiction requires a Plaintiff to show s/he has sustained through all phases of litigation a cognizable injury-in-fact or invasion of a legally protected interest. Lujan v. Defenders of Wildlife 504 U.S. 555, 560-561, 112 S. Ct. 2130, 2136 (1992). Courts are obliged to evaluate subject matter jurisdiction sua sponte. United Investors Life Ins. Co. v. Waddell & Reed, Inc. 360 F.3d 960. 966 (9th Cir. 2004). Municipal taxpayer standing requires a nexus between the pocketbook injury and alleged wrongful conduct. Doremus v. Bd. of Ed. Of Borough of Hawthorne (1952) 342 U.S. 429, 433-34; Cammack v. Waihee 932 F.2d 765, 770. The Court has offered extensive analysis of potentially illegal aspects of SCEP yet virtually no evidence or analysis supports the Motion. Bare assertions and legal conclusions are not evidence. Two ordinances are stated to be in issue but only one ordinance is identified. Fatal to the Motion is that Plaintiffs fee payor status is no longer based upon good faith claims due to the aforesaid SCEP amendments and because there is no evidence showing that the payment of SCEP Fees actually causes or could cause an unlawful inspection based upon a plain reading of existing ordinance. Therefore, although the Court provisionally held Plaintiffs need not prove being subjected to an unlawful search (a point not Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 5 of 13 Page ID #:1061 6 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conceded) during the pleading stage, it is now obvious that Plaintiffs lack any good faith basis to continue their tax payor standing theory because: (1) Plaintiffs Teague and Switzer have never had an illegal inspection raising an inference that inspections do not actually occur; (2) The Motion is not supported by any evidence of any proposed class member being subjected to any illegal SCEP inspection; (3) As of 2000, Periodic Inspections have required consent and/or other legal process under LAMC § 161.601 stating “If entry is refused or cannot be obtained, the General Manager shall have recourse to every remedy provided by law to secure lawful entry…”; (4) As of November 2017, due to curative legislation (Exhibit 4) to Complaint Inspections require they be completed with consent or by securing legal process, thereby reflecting the legislative remedy; (5) This Motion excludes exigent circumstance and warrant inspections thereby removing these evolving fact scenarios; (6) The statute of limitations on all facial challenges to SCEP accrued when the law was enacted [De Anza Props. X, Ltd. v. County of Santa Cruz, 936 F.2d 1084, 1087 (9th Cir. 1991)] with the Periodic Inspection Ordinance being enacted in 2000 and making this lawsuit due in 2002, absent as-applied facts during the last two years; (7) Plaintiffs failed to carry their burden of satisfying the requirements for class certification as there is no evidence that has been presented which could establish the existence of both an ascertainable class (numerosity) or well-defined community of interest among class members, nor any discussion about why proceeding as a class would be superior to allowing individuals to vindicate their individual rights. Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 6 of 13 Page ID #:1062 7 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On these grounds, the Motion does not support class certification using the provisional tax payer standing criteria of paying a SCEP Fee. 3. The Complaint Inspection Amendments Moot The Motion. A party challenging the facial validity of an ordinance on vagueness grounds, outside the domain of the First Amendment, as the case here, must demonstrate that the enactment is “impermissibly vague in all of its applications.” Hotel & Motel Association of Oakland v. City of Oakland, 344 F.3d. 959, 972 (9th Cir. 2003). A claim becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. People of Gambell v. Babbitt 999 F.2d 403, 406, 1993 U.S. App. LEXIS 17477, *4 (9th Cir. 1993). Mootness may occur where “subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc. 528 U.S. 167, 173, 120 S. Ct. 693, 700, 145 L. Ed. 2d 610, 622, 2000 U.S. LEXIS 501, *8 (2000). Relevant subsequent events may comprise superseding legislation that removes challenged features of the prior law. Santa Monica Food Not Bombs v. City of Santa Monica 450 F.3d 1022, 1031, 2006 U.S. App. LEXIS 14850, *20-21 (9th Cir. 2006) (holding ordinance amendment rendered facial challenges to those ordinances moot). Courts “presume that the Government acts in good faith” and unless “it is virtually certain that the repealed law will be reenacted,” a case should be rendered moot. Rosebrock v. Mathis (9th Cir. 2014) 745 F. 3d 963, 974, 2014 U.S. App. LEXIS 4890, *29.. Implicit in the instant Motion as to Complaint Inspections is a vagueness contention that these inspections do not comport with the Fourth Amendment. Although offering no evidence about their own unlawful inspections (because none exists), Plaintiffs ask the Court to conjure up imaginary illegal inspections Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 7 of 13 Page ID #:1063 8 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 involving proposed class members without an iota of evidence that same is facially plausible. Noteworthy is that not a single claim of an unlawful inspection supports this ill-conceived Motion underscoring the lack of foundation supporting certification. Plaintiff Garris has never had any illegal inspection in her many rental units and absented herself from discovery (See Motion, pg. 2, ftnt. 3) showing how impossible certification would be. Nor does the Motion supposition concerning the City’s interrogatories responses as to the number of units falling within SCEP’s jurisdiction fare better (Motion Notice, pg. 1, ftnt. 1) because a rental unit falling within the SCEP jurisdiction does not mean the unit was inspected. The Motion conjecture that there are “over 33,000 inspections conducted without notice based on complaints” (Motion Notice, pg. 2, ftnt. 1) is therefore argument lacking foundation as to any preliminary facts as required under FRE. 104(b). Plaintiffs’ attorney is not a witness competent to provide opinion testimony under FRE 701 and 704. The amendment to the Complaint Inspection ordinance has gutted all vagueness claims such that Plaintiffs no longer have a cognizable interest in the outcome of this case. Since the political process has solved Plaintiffs perceived problem, the Motion should be denied. 4. Supposition About Lack of Time To Seek Pre-Compliance Review of An Inspection Notice Is Not Evidence. The Motion argues that some potential class member will be unable to seek pre-compliance review of an inspection notice. This conclusion belies common sense since SCEP states when consent to enter is not provided, legal process must be sought. Whatever that window of time it takes to secure legal process, it exists and there is no evidence that such time period is too short for a landlord or tenant to obtain review of the matter. Additionally, every instance when such time period Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 8 of 13 Page ID #:1064 9 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to challenge an inspection notice is claimed to be too short would require individualized discovery making this case unsuited to certification.. 5. A Class Action Would Not Help In Getting Injunctive Relief. The basic requisites for the issuance of equitable relief are the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law. O’Shea v. Littleton 414 U.S. 488, 502 (1974). “The plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). Even if the Court deemed Plaintiffs’ fee payor status as sufficient to confer class action standing, the evidence submitted by Defendant City shows that there is no longer any threat of substantial and immediate irreparable injury caused by unconsented or inspections lacking legal process due to the curative SCEP amendments. Because any such continued injury or threat of injury would be conjectural or hypothetical, and because the injunctive relief of remedial legislation has been completed, the Motion should be denied. 6. Class Certification Based Upon LAMC § 161.601 Enacted In 2000 Is Time Barred. Section 1983 personal injury actions have a two-year statute of limitations. Jones v. Blanas 393 F.3d 918, 928 (9th Cir. 2004); California Code of Civil Procedure § 335.1. The statute of limitations on facial challenges to legislation accrues when the law was enacted. De Anza Props. X, Ltd. v. County of Santa Cruz, 936 F.2d 1084, 1087 (9th Cir. 1991). The Periodic Inspection Ordinance at issue was enacted in 2000, making any straight facial challenge due to be filed in roughly 2002, absent as-applied facts during the last two years. Exhibit 3, pg. 12. Instead this lawsuit was filed some fifteen years later making it time barred. The Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 9 of 13 Page ID #:1065 10 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 time bar conclusion as to Periodic Inspections is also dictated because as of 2000, Periodic Inspections were conducted only with consent or other legal process under LAMC § 161.601 stating “If entry is refused or cannot be obtained, the general manager shall have recourse to every remedy provided by law to secure lawful entry…” Accordingly, the claims related to Periodic Inspections are unsupported by any plausible reading of LAMC § 161.601 as enacted in 2000. 7. Qualified Immunity Renders a Class Action Impractical. Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation. Harlow v. Fitzgerald (1982) 457 U.S. 800, 818, 73 L. Ed. Qualified immunity has an ‘objective’ and a ‘subjective’ aspect. The objective element involves a presumptive knowledge of and respect for basic, unquestioned constitutional rights. Wood v. Strickland, 420 U.S. 308, 322 (1975). The subjective component refers to whether an official knew or reasonably should have known that the action he took within his sphere of responsibility would violate someone’s constitutional rights. Harlow v. Fitzgerald, supra, 457 U.S. at 815. Plaintiffs had the burden as proposed class representatives of demonstrating a present violation of their legal rights caused facially by Periodic or Complaint Inspections Ordinances and should have shown the inapplicability of qualified immunity to them for any such inspection. This has not occurred. The qualified immunity defense also would need to be analyzed in every class member instance of a claimed unlawful inspection which would be time prohibitive given that the witnesses/evidence would be different warranting denial of the Motion. 8. Individualized Discovery Needs Make Class Certification Impractical And Inefficient. There are no facts in the Complaint raising an inference about how the Court could reasonably embrace a class action lawsuit about illegal searches and seizures Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 10 of 13 Page ID #:1066 11 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of places and persons, juxtaposed against the stained proximate cause fee payer injury of payment of SCEP Fees, because individual determinations would have to be made about a multitude of issues, including, but not limited to: A Whether a property owner actually paid the SCEP fee. B. Whether or not the property owner then subsequently passed through the SCEP fee to their tenants based upon month-by-month analysis of rent records and lease statement to establish legal occupancy. C. Whether any claim of exemption was filed for individual units and the result, through administrative appeal, to cull out disqualified units. D. How there exists a common damage theory among the proposed class members. E. Whether a landlord or tenant consented to an inspection and evaluation of the legality of what happened based upon a qualified immunity defense. F. Obtaining witness statements as to who had standing to contest an inspection. G. Assessment of warrant exceptions. H. Exhaustion of administrative remedies to challenge SCEP Fees. The Motion fails to comprehend the above complexities. Plaintiffs are unable to state a rough estimate of potential class members because the proposed class is poorly defined and over inclusive. The Motion bases commonality on “a facial challenge to certain sub-sections of the Inspection Ordinance” (Motion 7:5- 6) which is vague. The legislative facts common to all proposed class members has been cured by the SCEP amendments discussed above. Contrary to the Motion, there are no identified common questions of fact as to the proposed class Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 11 of 13 Page ID #:1067 12 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 members. The only criteria for class membership is the payment of SCEP fees. The payment of SCEP fees raises an inference that consent to enter has been provided. There is no evidence that SCEP Fees have been or are used to fund unconsented, warrantless inspections. The indisputable evidence shows that the existing SCEP Ordinance requires inspectors to obtain consent or otherwise secure legal process before an inspection occurs. Just because there may be other property owners or tenants in the City who feel that payment of SCEP Fees is wrong, does not convert their claims into Fourth Amendment class claims. The good faith tax payor standing that may have existed during the pleading stage has now evaporated with the SCEP amendments. The Court should not become mired in prejudging hypothetical state law inspection procedures decided by state court judges nor speculate about what would be a sufficient pre-inspection notice as same requires individualized fact determinations for every class member. The City’s recent amendments reflect it is unlikely inspectors would violate any Fourth Amendment rights ─ a point underscored by the Motion’s lack of a single instance about an unlawful inspection. On all of these grounds, the Motion should be denied. Dated: January 5, 2017 MICHAEL N. FEUER, City Attorney DEBORAH BREITHAUPT, Deputy City Attorney By: /s/ DEBORAH BREITHAUPT Attorneys for Defendant City of Los Angeles etc. Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 12 of 13 Page ID #:1068 13 OPPOSITION, REQUEST TO FILE LATE OPPOSITION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, DEBORAH BREITHAUPT, declare as follows: At the time of service I was over 18 years of age and not a party to this action. My business address is 916 City Hall East, 200 North Main Street, Los Angeles, CA 90012, which is in the County, City and State where this mailing occurred. On March 21, 2017, I served the document(s) described as Defendant’s Notice of Motion and Motion to Dismiss etc. on all interested parties in this action: Dominic Surprenant QUINN EMMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000/Facsimile: (213) 443-3100 By United States Mail: I enclosed true copies of the documents(s) in a sealed envelope or package addressed to the person(s) address(es) as above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’ practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit. I declare under penalty of perjury under the laws of the State of California and United States that the foregoing is true and correct. Dated: March 21, 2017 By: /s/ DEBORAH BREITHAUPT Case 2:17-cv-01452-MWF-E Document 39 Filed 01/05/18 Page 13 of 13 Page ID #:1069