Brandi Garris et al v. City of Los Angeles

REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION to Certify Class 38

C.D. Cal.January 8, 2018

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 -- QUINN EMANUEL URQUHART & SULLIVAN, LLP Dominic Surprenant (Bar No. 165861) dominicsurprenant@quinnemanuel.com Michael Lombardo (Bar No.311365) mikelombardo@quinnemanuel.com 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 Attorneys for BRANDI GARRIS, JOHN SWITZER and JASON TEAGUE 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) REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [Declaration of Dominic Surprenant Filed Concurrently Herewith] Date: January 22, 2018 Time: 10 a.m. Crtm: First Street Courthouse, 5A Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 1 of 24 Page ID #:1169 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 -i- TABLE OF CONTENTS Page Preliminary Statement ................................................................................................. 1 Statement of Facts ........................................................................................................ 3 A. The City's Untimely Opposition to the Motion ...................................... 3 B. Discovery Indicates There Have Been No Exigent Circumstances Inspections And Only Three Administrative Warrant Inspections Conducted in the Relevant Time Frame, Which Means Plaintiffs' Facial Challenges Encompass Virtually All Inspections The City Has Conducted. ....................................................................................... 4 Argument ..................................................................................................................... 5 I. The Court Has Discretion To Strike The City's Untimely Opposition And Grant The motion As Unopposed. ............................................................. 5 II. The City Fails To Identify Any Reason The Motion for Class Certification Should Not Be Granted. ............................................................... 8 A. The September 2017 Amendment Does Not Have Any Relevance To The Primary Basis Of Constitutional Invalidity The Court Previously Identified. ............................................................. 8 B. That Plaintiffs Have Leveled Two Constitutional Challenges To The Inspection Ordinance Does Not Mean, As The City Claims Without Explanation, That Plaintiffs Are Challenging Two Different Ordinances But Have Only Given Notice of One Ordinance. ............................................................................................... 9 C. The City's Repetition Of Merits Arguments This Court Rejected In Its Order Re Motion To Dismiss Case (Document 31) Provides No Basis To Deny The Motion. ............................................... 9 1. The Court Has Ruled That Plaintiffs Have Standing To Seek Injunctive Relief. ................................................................ 10 2. The City's Argument About Pre-Compliance Review Ignores The Court's Order And The Nature of Plaintiffs' Facial Challenge. ........................................................................ 11 3. The Court Has Rejected The City's Statute Of Limitations Defense. ...................................................................................... 12 4. Class Certification Is Necessary For the Proposed Classes to Obtain Class-Wide Injunctive Relief. .................................... 12 5. The City 's Qualified Immunity Is Irrelevant Because Plaintiffs Do Not Seek Damages Against Governmental Officials. ..................................................................................... 13 Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 2 of 24 Page ID #:1170 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 -ii- D. The Handful of Unsupported Arguments That The City Makes That Are Actually Relevant To Class Certification Lack Merits And Fail To Address Controlling Supreme Court Precedent Or Plaintiffs' Showing. ............................................................................... 14 1. Plaintiffs' Motion Supported Class Certification. ....................... 15 E. The City Fails To Rebut Plaintiffs' Class Showing. ............................. 15 Conclusion ................................................................................................................. 18 Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 3 of 24 Page ID #:1171 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 -iii- TABLE OF AUTHORITIES Page Cases Califano v. Yamaska, 442 U.S. 682 (1979) ........................................................................................... 3, 18 ConAgra Brands, Inc. v. Briseno, 138 S. Ct. 313 (2017) ............................................................................................. 16 De Anza Props. X Ltd. v. County of Santa Cruz, 936 F.2d 1084 (9th Cir. 1991) ............................................................................... 12 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ............................................................................................. 2, 9 Eisenberg v. Citibank N.A., No. 213CV01814CASJPRX, 2017 WL 532936 (C.D. Cal. Feb. 8, 2017) ............. 6 Harrow v. Fitzgerald, 457 U.S. 800 (1982) ............................................................................................... 13 Hernandez v. Winstar Properties, Inc., No. 216CV04697ODWKSX, 2017 WL 3741258 (C.D. Cal. Aug. 30, 2017) ........................................................................................ 6 Kyle v. Campbell Soup Co., 28 F.3d 928 (9th Cir. 1994) ..................................................................................... 6 Matter v. Voysey, No. SACV150978DOCAGRX, 2016 WL 6953461 (C.D. Cal. Feb. 29, 2016 .......................................................................................... 3 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) ......................................................................................... 13, 14 National Center for Immigrants Rights, Inc. v. INS, 743 F.2d 1365, 1371 (9th Cir.1984) ...................................................................... 13 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993) ............................................................................................. 6, 7 Robertson v. FedEx Nat. Ltl, Inc., No. CV 09-5016 DSF FFMX, 2010 WL 10020690 (C.D. Cal. Jan. 5, 2010) ........ 7 Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir.1975) ............................................................................ 5 Wal-Mart Stores, Inc. v. Dukes, 566 U.S. 338 (2011) ................................................................................................. 2 Wood v. Strickland, 420 U.S. 308 (1975) ............................................................................................... 13 Zepeda v. U.S. I.N.S., 753 F.2d 719 (9th Cir. 1983) ................................................................................. 12 Statutory Authorities 42 U.S.C. § 1983 .................................................................................................. 13, 14 Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 4 of 24 Page ID #:1172 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 -iv- Rules and Regulations Fed. R. Civ. P. 6(a)(1)(C) .................................................................................... 1, 3, 4 Fed. R. Civ. P. 6(b)(2) ................................................................................................. 5 Fed. R. Civ. P. 11(b) .................................................................................................. 18 Fed. R. Civ. P. 23(a) .................................................................................................... 9 Local Rule 7-9 ......................................................................................................... 1, 3 Local Rule 7-12 ........................................................................................................... 3 Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 5 of 24 Page ID #:1173 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 -1- PRELIMINARY STATEMENT Defendant the City of Los Angeles filed its Opposition to Plaintiffs' Motion for Class Certification ("Motion") on the morning of Friday, January 5, 2018. Pursuant to Local Rule 7-9 and Fed. R. Civ. P. 6(a)(1)(C), its Opposition had been due one week earlier, on Friday, December 29, 2017. Plaintiffs' Reply is due on Monday, January 8, 2018, or one business day after the City filed its Opposition. Under well-established case law, the City's excuse (that its counsel’s office was being moved) is of no moment. Lawyers do not get a free pass to ignore filing deadlines when they move offices. Filing a pleading on a major motion one week late, and giving the adversary a single business day to file a reply, shows a regrettable lack of seriousness on behalf of the City. Plaintiffs start their Reply on this point not because they urge the Court to strike the City's untimely and prejudicial Opposition and grant the Motion as unopposed. Plaintiffs leave that decision to the Court's discretion. Rather, Plaintiffs start with the City's lack of seriousness because it is a fair introduction to the wholesale lack of merit of their Opposition, which is incoherent, inaccurate and ignores the Court's Order Re Motion To Dismiss Case (Document 31) ("Order"). The City makes three types of arguments, none of which have merit and most of which are largely irrelevant to the Motion, as they attempt to argue the merits, not that Plaintiffs have failed to meet the criteria for class certification. First, the City argues a September 2017 amendment to the Inspection Ordinance cures its unconstitutional aspects. The City is wrong. Plaintiffs are pleased their lawsuit has persuaded the City to cure two obvious constitutional flaws with the Ordinance - namely, Section 161.602.2 and 161.603, which until the September 2017 amendment allowed the City to inspect a rental residence without notice to the tenant so long as it believed there was a violation of the Code or it received a Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 6 of 24 Page ID #:1174 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 -2- complaint.1 But the amendment does nothing to cure or even address the principal constitutional flaw the Court's Order identified: that Section 161.601 allows the City to inspect rental residences without (a) obtaining an administrative warrant or (b) without any provision for pre-compliance review. See Order at 19-20. As the Court observed, "under the Ordinance, even where they receive prior notice, Los Angeles landlords and tenants are seemingly required to file a lawsuit to challenge the inspection in the unspecified time period between receiving notice and the inspection itself. The City has yet to respond to this argument." Order at 20. Nowhere in its Opposition does the City "respond" to this argument. It thereby concedes it and the constitutional violation the concession entails. Second, the City's principal opposition is a scattershot series of merits assertions, most of which the Court rejected in its November 17, 2017 Order and which are irrelevant to class certification in any event. “In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (internal quotation and citation omitted).2 1 From October 2014 to June 2017, the City conducted over 33,000 inspections without any notice pursuant to the complaint sub-section, Section 161.603. See Notice of Motion (Document 38), at 1-2 n.1. 2 More recently, in Wal-Mart Stores, Inc. v. Dukes, 566 U.S. 338, 352 & n.6 (2011), the Supreme Court indicated there are occasions when it would be appropriate for the court to take into account a preliminary view of the merits in deciding class certification. As the Dukes Court observed, it may be appropriate to do so when given the elements of the claim, the class certification analysis and merits analysis overlap, i.e., to determine whether the plaintiff has met its burden to certify the class, the court has to make some analysis of the merits. That is not true here and the City has made no argument that it is (and rarely, if ever, would there be such an overlap on a facial claim). What is more, none of the City's merits points in fact have merit. Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 7 of 24 Page ID #:1175 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 -3- Third, the City does, briefly and belatedly, purport to address the appropriateness of class certification in the last two pages of its brief. The City fails to respond, however, to Supreme Court precedent emphasized in Plaintiff's moving papers that a facial challenge on constitutional grounds is "peculiarly appropriate" for class certification. Califano v. Yamaska, 442 U.S. 682, 701 (1979). The arguments it does make are unsupported, speculative and do not engage the relevant standards. Plaintiffs respectfully submit that its Motion for Class Certification should be granted in all respects. STATEMENT OF FACTS A. THE CITY'S UNTIMELY OPPOSITION TO THE MOTION On December 14, 2017, Plaintiffs filed their Notice of Motion and Motion for Class Certification (Document 38), appropriately setting it for hearing on January 22, 2018. Pursuant to Local Rule 7-9, the City's Opposition was due 21 days before the hearing, or on January 1, 2018. Because January 1st is a legal holiday, the City's Opposition was due the first business day prior to January 1st, or Friday, December 29, 2017. See Fed. R. Civ. P. 6(a)(1)(C).3 The City failed to file its Opposition on 3 See Matter v. Voysey, No. SACV150978DOCAGRX, 2016 WL 6953461, at *2 (C.D. Cal. Feb. 29, 2016 ("Rule 6(a)(1)(C) provides that when a period is stated in days, as in Local Rule 7-9, the parties are to 'include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday” (emphasis added). Rule 6(a)(5) provides that '[t]he ‘next day’ is determined by continuing to count ...backward when measured before an event” (emphasis added), as the date for filing an opposition is under Local Rule 7-9. [Citation omitted.] In this case, because the due date for Fulton's Opposition fell on February 15, 2016, a legal holiday per Rule 6(a)(6)(A), Fulton's Opposition was due on Friday, February 12, 2016, 'as that was the next day counting backwards that was not a Saturday, Sunday, or legal holiday.' [Citation omitted.] As such, Fulton's Opposition was untimely and the Court had discretion to grant Defendant's second Motion to Dismiss pursuant to Local Rule 7-12.”). Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 8 of 24 Page ID #:1176 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 -4- Friday, December 29, 2017, or on Tuesday, January 2, 2018. On Wednesday, January 3, 2018, at 8:18 a.m., counsel for Plaintiffs emailed counsel for the City, pointing out the City's Opposition had been due on December 29, 2017, and inquiring when it would be filed and served. See Declaration of Dominic Surprenant dated January 8, 2018 ("Surprenant Decl."), ¶ 2 & Exh. A. Approximately three hours later, counsel for the City responded, "will file in next day or so.. any objection?" See id. Counsel for Plaintiffs responded that they did object, as Plaintiffs would be prejudiced by having very little time to prepare a reply memorandum in support of their Motion. See id. In a subsequent email, counsel for the City claimed (a) that the Opposition was due on January 2, 2018, and (b) an office move had delayed its preparation. See id. (Jan. 3, 2018 email from Breithaupt to Surprenant sent at 11:42 a.m.). Counsel for Plaintiffs responded that under Fed. R. Civ. P. 6(a)(1)(C), the Opposition had been due on December 29, 2017. See id. The City finally filed its Opposition on the morning on Friday, January 5, 2018, or one business day before Plaintiffs' Reply was due. B. DISCOVERY INDICATES THERE HAVE BEEN NO EXIGENT CIRCUMSTANCES INSPECTIONS AND ONLY THREE ADMINISTRATIVE WARRANT INSPECTIONS CONDUCTED IN THE RELEVANT TIME FRAME, WHICH MEANS PLAINTIFFS' FACIAL CHALLENGES ENCOMPASS VIRTUALLY ALL INSPECTIONS THE CITY HAS CONDUCTED. The Court's Order indicated that inspections that did not involve inspections pursuant to administrative warrants or exigent circumstances gave rise to actionable facial challenges to the constitutionality of the Inspection Ordinance as to which Plaintiffs had standing to pursue. See Order at 2, 12, 17-18 & 19-20. In other words, the Section 161.601 periodic inspections not involving exigent circumstances and not done pursuant to an administrative warrant were constitutionality suspect because there was no provision for pre-compliance review as required by Patel; Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 9 of 24 Page ID #:1177 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 -5- however, the Court held, inspections done under exigent circumstances or pursuant to an administrative warrant were constitutionally compliant. See Order at 17. Discovery responses that the City served in June 2017 indicated that from October 9, 2014 to June 23, 2017, the City conducted three inspections pursuant to administrative warrants. See Notice of Motion (Document 38) at 1-2 n.1. Discovery responses from the City dated January 4, 2018 indicate there were no inspections in that time frame performed under conditions of exigent circumstances. See Surprenant Decl., ¶ 3 & Exh. B at 5:7-15. In sum, while the Court has ruled that exigent circumstances inspections and administrative warrant inspections are not subject to constitutional challenge, Plaintiffs' facial challenges encompass 99.9996 percent of the inspections the City actually performed pursuant to the Inspection Ordinance from October 2014 to June 2017 (or 753,789 out of 753,792). See Notice of Motion (Document 38) at 1-2 n.1. ARGUMENT I. THE COURT HAS DISCRETION TO STRIKE THE CITY'S UNTIMELY OPPOSITION AND GRANT THE MOTION AS UNOPPOSED. Plaintiffs respectfully submit that the Court would be well within its discretion to strike the City's Opposition, which was filed and served fully seven days after it was due. Plaintiffs understand the Court may prefer to fully weigh the City's Opposition in deciding the Motion and Plaintiffs defer to the Court on how the Court chooses to exercise its discretion in that regard. Federal Rule of Civil Procedure 6(b)(2) provides that the court may enlarge the specified time period for an act “upon motion made after the expiration of the specified period . . . where the failure to act was the result of excusable neglect.” Since it is a rule of general application, courts are given discretion in granting or denying extensions. See, e.g., Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir.1975). In making such a determination, courts are to consider the following factors: (1) the danger of prejudice to nonmoving parties; (2) the length of Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 10 of 24 Page ID #:1178 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 -6- delay in seeking relief; (3) the reason for the delay; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). Each of these factors weigh against enlarging the time for the City's Opposition. Where the deadline for a filing is unambiguous, an attorney's neglect is typically inexcusable. Eisenberg v. Citibank N.A., No. 213CV01814CASJPRX, 2017 WL 532936, at *2 (C.D. Cal. Feb. 8, 2017) (citing Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th Cir. 1994), as amended on denial of reh'g (Apr. 8, 1994) (district court abused its discretion by determining that attorney's failure to obey unambiguous scheduling rule was excusable); see also Hernandez v. Winstar Properties, Inc., No. 216CV04697ODWKSX, 2017 WL 3741258, at *3 (C.D. Cal. Aug. 30, 2017) (absent a “dramatic ambiguity” in the deadline, the defendants’ failure to meet the Court’s deadline is inexcusable). Plaintiffs reluctantly point out that there is also evidence of bad faith on the part of the City. Although the City's belief that the Opposition was due on January 2, 2018, was inaccurate and negligent, it may have been in good faith. But despite thinking (incorrectly) the Opposition was due on January 2nd, the City blithely indicated on January 3rd it would file it in the "next day or so" and in fact filed it two days later. Even according to its own (and mistaken) calculation, the City filed its Opposition fully three days late (and actually seven days late).4 The City's excuse is an office move. The practice of law is a privilege. With privilege comes responsibility. Office moves are a fact of life. They do not excuse professional obligations. The law recognizes this fact. The Supreme Court 4 The declaration by counsel for the City, while somewhat unclear, appears to indicate the City did not even begin to prepare its Opposition until January 2, 2018, or (a) four days after it was actually due and (b) the same day that the City claims it thought the Opposition was due. See Declaration of Deborah Breithaupt (Doc. 39- 1), ¶ 3. Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 11 of 24 Page ID #:1179 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 -7- admonished that “[i]n assessing the culpability of respondents' counsel, we give little weight to the fact that counsel was experiencing upheaval in his law practice at the time of the bar date.” Robertson v. FedEx Nat. Ltl, Inc., No. CV 09-5016 DSF FFMX, 2010 WL 10020690, at *3 (C.D. Cal. Jan. 5, 2010) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 398 (1993)).5 Finally, Plaintiffs were materially prejudiced by the City's one-week delay in filing its Opposition. Plaintiffs should have had ten calendar days, six of which would have been business days, to prepare their Reply. The City's tardiness instead gave Plaintiffs three calendar days, only one of which was a business day. Plaintiffs' intent is that this Reply will provide the same assistance to the Court as if Plaintiffs had had their allotted time, but the very compressed time makes that a daunting challenge. It would be understandable if the Court were to choose to weigh the City's Opposition in deciding the Motion. The City's blithe disregard of its deadline on a major motion, however, is troubling. Plaintiffs respectfully submit that the Court may wish to consider striking the Opposition and granting the Motion as unopposed, or imposing some lesser sanction, in light of the City's misconduct. 5 Plaintiffs observe that there appears to be material inconsistency between the City's explanation for the delay as set forth in the City's counsel January 3, 2017 email sent at 11:42 a.m. (Surprenant Decl. ¶2, Exh. A) and counsel's declaration. In her declaration, as described in the City's Opposition, counsel for the City declared that "the relocation [of her office] occurred earlier than planned and without timely notice." See Opp. at 2:12-15; see also Breithaupt Decl., ¶ 3. In her January 3rd email, however, counsel for the City, while blaming the missed deadline on an office move, made no mention of the move occurring "earlier than planned and without timely notice." Surprenant Decl. ¶2, Exh. A. Plaintiffs' counsel expressly noted the lack of surprise in his response, stating: "I do not understand the relevance of the Housing Section moving. Presumably this move was planned long in advance and you had sufficient notice to arrange for necessary support." See id. Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 12 of 24 Page ID #:1180 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 -8- II. THE CITY FAILS TO IDENTIFY ANY REASON THE MOTION FOR CLASS CERTIFICATION SHOULD NOT BE GRANTED. A. THE SEPTEMBER 2017 AMENDMENT DOES NOT HAVE ANY RELEVANCE TO THE PRIMARY BASIS OF CONSTITUTIONAL INVALIDITY THE COURT PREVIOUSLY IDENTIFIED. The Court found three circumstances in which the Inspection Ordinance could be unconstitutional. Prior to the September 2017 amendment, Section 161.602.2 stated that "[p]rior notice to inspect shall not be required if the inspection is to determine whether a violation of this Code exists which poses a threat to public health or safety." Section 161.603 allowed an inspection without notice when a complaint was filed. The Court expressly found both these constitutionally problematic. See Order at 18 (last full paragraph). The Court then went on to determine whether the "notice provision" of Section 161.601 "comports with Patel's 'precompliance review’ requirement" and found (at least provisionally) that it did not. See Order at 19 (second full paragraph) to 20. In that discussion, the Court noted the City "has yet to respond" to Plaintiffs' argument that Section 161.601 notice was insufficient to satisfy Patel's precompliance review requirement because the only way Plaintiffs could obtain precompliance review was to file a lawsuit. Order at 20. The City says, oddly and without explanation, that in light of the Court's Order, "recovery has been limited to injunctive relief via the political process." See City’s Opposition (Document 39) (“Opp.”) at 3:8-9 (emphasis added). This assertion makes no sense: injunctive relief is a judicial act, not a political one. The City's assertion appears to be a clumsy introduction to arguing that the September 2017 amendment to the Inspection Ordinance cured its unconstitutionality, as it were, "via the political process." The City is plainly wrong and its discussion and citation to exhibits (Opp. at 3:13-27) is confusing. It cites to Exhibit 3, at 12 in saying Section 161.601 has been amended; the amendment simply clarifies that Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 13 of 24 Page ID #:1181 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 -9- notice is not required by Section 161.601 when exigent circumstances exist (and as shown above, the City did not actually perform any exigent circumstances inspections from October 2014 through January 4, 2018). The amendments to Section 161.602.2 and .603 remove the language allowing inspections without notice, but such inspections are still subject to the terms of Section 161.601 periodic inspections, i.e., the City may inspect private residences without obtaining an administrative warrant and without any provision of precompliance review required by Patel, and so they continue to be suspect under Patel and this Court's November 7, 2017 Order (at 19-20). B. THAT PLAINTIFFS HAVE LEVELED TWO CONSTITUTIONAL CHALLENGES TO THE INSPECTION ORDINANCE DOES NOT MEAN, AS THE CITY CLAIMS WITHOUT EXPLANATION, THAT PLAINTIFFS ARE CHALLENGING TWO DIFFERENT ORDINANCES BUT HAVE ONLY GIVEN NOTICE OF ONE ORDINANCE. In an unexplained assertion, the City states that the "Motion states two facial challenges are claimed (pg. 1, lines 21-23) but only one ordinance is identified . . . reflecting a lack of due process notice." See Opp. at 4:9-12. Plaintiffs’ challenge, as their moving papers make clear, "the City's Housing Code Sections 161.101 through 161.1201." Memorandum of Points and Authorities ("Mem."), Document 38 at 1:21-23. It is true that Plaintiffs assert that the Housing Code is unconstitutional both under Bulacan and under Patel. See id. at 2:10-4:6. But only one ordinance is challenged and Plaintiffs provided clear notice of that. C. THE CITY'S REPETITION OF MERITS ARGUMENTS THIS COURT REJECTED IN ITS ORDER RE MOTION TO DISMISS CASE (DOCUMENT 31) PROVIDES NO BASIS TO DENY THE MOTION. At class certification, the question is not whether the plaintiff has stated a claim or will prevail on the merits, but whether it has satisfied the requirements of Fed. R. Civ. P. 23(a) and at least one of the requirements of Rule 23(b). See Eisen, Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 14 of 24 Page ID #:1182 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 -10- 417 U.S. at 178; see also Mem. at 5:6-17. Despite this, a substantial portion of the City's cursory Opposition are merits arguments, some of which the Court has already rejected. 1. THE COURT HAS RULED THAT PLAINTIFFS HAVE STANDING TO SEEK INJUNCTIVE RELIEF. In the Court's Order, the Court plainly ruled that Plaintiffs have standing to pursue injunctive relief and that standing arises from having paid the inspection fee. See Order at 2-3, 25. The City, in a variety of scattershot unexplained assertions, ignores the Court's order and argues that Plaintiffs lack standing. There are two problems with these arguments. They are merits arguments irrelevant to Plaintiffs’ class certification motion, and the Court has already rejected them. The City's standing, or quasi-standing arguments, is presented under the heading "No Good Faith Fee Payor Injury Supports The Motion." See Opp. at 5:9- 7:2. Among other unexplained assertions, the City argues the following:  "[T]here is no evidence showing that the payment of SCEP Fees actually causes or could cause an unlawful inspection based upon the plain reading of the existing ordinance." Opp. at 5:24-26. This assertion patently lacks merit to the point of violating Rule 11(b). On its face the Inspection Ordinance recites the inspection fee is expressly designed to fund inspection of rental residences subject to it. See Section 161.352 (“The fee will be used to finance the costs of inspection and enforcement by the Department.”).  "Plaintiffs Teague and Switzer have never had an illegal inspection raising an inference that inspections do not actually occur." Opp. at 6:3-4. There are at least three things to say about this remarkable assertion. First, the Inspection Ordinance requires inspection of each of the over 750,000 rental residential units subject to it to be searched at least every three years or more often if city officials deem Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 15 of 24 Page ID #:1183 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 -11- appropriate. See Section 161.353. For the City to argue that the "inspections do not actually occur" despite the plain language of the statute is reckless in the extreme. Second, record evidence supports that Teague paid a fee and Switzer reimbursed his landlord for the inspection fee, which is what the Court ruled established standing. See Order at 2-3, 25. Third, whether Teague's and Switzer's residence was actually inspected is not relevant under the Court's Order. Plaintiffs therefore had no occasion to support the Motion with such evidence.  "The Motion is not supported by any evidence of any proposed class member being subjected to any illegal SCEP inspections." Opp. at 6:5-6. This is a repetition of the foregoing point and equally lacking in merit. 2. THE CITY'S ARGUMENT ABOUT PRE-COMPLIANCE REVIEW IGNORES THE COURT'S ORDER AND THE NATURE OF PLAINTIFFS' FACIAL CHALLENGE. In another irrelevant merits argument, the City argues that "Supposition About Lack of Time To Seek Pre-Compliance Review of An Inspection Notice Is Not Evidence." See Opp. at 8:19-9:2. The City is resolute in ignoring that Plaintiffs' claim is a facial challenge. Section 161.601 allows, but does not require, the City to obtain an administrative warrant when entry is refused (and we know from the City's discovery responses it had sought such a warrant three times in the relevant time frame) and fails to provide any mechanism for pre-compliance review required by Patel. The Court found that this could be found to state a facial claim of unconstitutionality under Patel. See Order at 19-20. There is nothing involving a "supposition" here. On its face, Section 161.601 does not provide the renter or landlord any opportunity for pre-compliance review when entry is refused (and any refusal subjects proposed class members to a $1,000 per day fine, hence any "consent" is coerced under the case law, see Mem., at 3-4 n.4). The Court openly Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 16 of 24 Page ID #:1184 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 -12- invited the City to explain if the only way a non-consenting landlord or renter could obtain pre-compliance review was to file a lawsuit. See Order at 20. The City fails to respond and concedes the answer is yes. 3. THE COURT HAS REJECTED THE CITY'S STATUTE OF LIMITATIONS DEFENSE. In the Order, the Court rejected the City's argument that the complaint was untimely. See Order at 12-13. The City makes another, and equally meritless, statute of limitations argument, asserting that irrespective of the date of Plaintiffs' injuries, the statute began to run at enactment of the statute in 2000, citing De Anza Props. X Ltd. v. County of Santa Cruz, 936 F.2d 1084, 1087 (9th Cir. 1991). The City already made the De Anza argument in its Motion to Dismiss (Document 10-1 at 3:27-4:3), Plaintiffs showed it lacked any merit, see Plaintiff's Opp. to City’s Motion to Dismiss (Document 14) at 8:22-25, and the Court ignored it. Furthermore, this is a merits argument that has nothing to do with Plaintiffs’ motion for class certification. 4. CLASS CERTIFICATION IS NECESSARY FOR THE PROPOSED CLASSES TO OBTAIN CLASS-WIDE INJUNCTIVE RELIEF. The City argues that "A Class Action Would Not Help In Getting Injunctive Relief." Opp. at 9:3. The premise for this assertion is that the September 2017 amendments to the Inspection Ordinance cured their unconstitutional defects. The City is plainly wrong. See supra Section II.A. What is more, it is well-established in the Ninth Circuit that absent class certification, the Court is limited to providing relief to the individual plaintiffs and not to the class as a whole, so holding specifically with respect to injunctive relief. “Without a properly certified class, a court cannot grant relief on a class-wide basis.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 728 n.1 (9th Cir. 1983). “The INS asserts that in the absence of class certification, the preliminary injunction may properly cover only the named plaintiffs. We agree.” National Center for Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 17 of 24 Page ID #:1185 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 -13- Immigrants Rights, Inc. v. INS, 743 F.2d 1365, 1371 (9th Cir.1984). In short, the only way the Court can award class-wide injunctive relief, and not merely relief to the proposed Plaintiffs, is to certify the classes identified in the Motion. 5. THE CITY 'S QUALIFIED IMMUNITY IS IRRELEVANT BECAUSE PLAINTIFFS DO NOT SEEK DAMAGES AGAINST GOVERNMENTAL OFFICIALS. The City argues that "Qualified Immunity Renders A Class Action Impractical." Opp. at 10:9-23. This argument is irrelevant. The cases that the City cites and the doctrine of qualified immunity are only relevant in determining whether a government official acted in "good faith" in carrying out his or her duties and is therefore immune from individual liability. See Harrow v. Fitzgerald, 457 U.S. 800, 815 (1982); Wood v. Strickland, 420 U.S. 308, 321-22 (1975). Because Plaintiffs are not seeking damages against individual government officials in this claim, the City's citations have no relevance. Second, even if a "good-faith" analysis was appropriate here, which it is not, such a defense fails when a government official clearly violates an established law. Harrow, 457 US. at 818-19. Here, the text of the Inspection Ordinance itself clearly violated the Fourth Amendment rights of those subject to it under both the Bulacan and Patel line of cases. Given that the defenses available to government officials are not relevant to Plaintiffs' claims, the proper inquiry becomes the claims actually plead by Plaintiffs. Section 1983 provides for a damages action against “[e]very person” who, while acting under color of law, subjects another to “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. The United States Supreme Court has held that municipalities and other local government units are themselves "persons" for purposes of § 1983. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). Local governing bodies such as the City of Los Angeles, therefore, can be sued directly under Section 1983 for monetary, declaratory, or injunctive relief where the action that is alleged Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 18 of 24 Page ID #:1186 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 -14- to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Id. Here, Plaintiffs have brought claims pursuant to 42 U.S.C. § 1983 alleging that based on the very terms of the City's Inspection Ordinance, every search performed pursuant to the Inspection Ordinance during the class period, other than those performed pursuant to a warrant or exigent circumstances, violate the Fourth Amendment rights of Plaintiffs and the proposed members of the Landlord and Renter Classes. As such, Plaintiffs have properly alleged that the City’s inspections of the approximately 753,792 units subject to the Inspection Ordinance deprived Plaintiffs and the proposed class of landlords and tenants of their Fourth Amendment rights. As the Supreme Court has explicitly held, allegations that the text of a municipality's ordinance deprives Plaintiffs of rights protected by the Constitution are the "touchstone" of those actions allowed by Section 1983. Id. Thus, Plaintiffs’ lawsuit is not barred by Qualified Immunity. D. THE HANDFUL OF UNSUPPORTED ARGUMENTS THAT THE CITY MAKES THAT ARE ACTUALLY RELEVANT TO CLASS CERTIFICATION LACK MERITS AND FAIL TO ADDRESS CONTROLLING SUPREME COURT PRECEDENT OR PLAINTIFFS' SHOWING. As shown in the foregoing, most of the City's Opposition consists of merits arguments that the Court has already rejected (and that are irrelevant to the class certification motion in any event) and a badly overreaching argument that the September 2017 amendment rendered Plaintiffs' claims moot, when the amendment failed to address the principal constitutional flaw the Court's November 7, 2017 Order identified. In isolated snippet-like arguments here and there in the Opposition and in its last two pages, the City purports to address the only question relevant to this Motion: have Plaintiffs met their burden under Rule 23 to have the two Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 19 of 24 Page ID #:1187 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 -15- proposed classes certified. Plaintiffs plainly have and the City equally plainly failed to join issue with Plaintiffs' showing. 1. PLAINTIFFS' MOTION SUPPORTED CLASS CERTIFICATION. Plaintiffs' Motion for Class Certification was straightforward. It proposed two classes: all landlords who owned a residential rental property subject to the Housing Code, Section 161.101 to 161.1201, and paid a fee pursuant to Section 161.352, and all renters who rented a residential rental unit subject to the Housing Code and reimbursed their landlords for a fee the landlord paid. Notice of Motion (Document 38) at 1:11-22. Plaintiffs quoted case law ruling that a facial constitutional challenge to a statute on behalf of numerous individuals who have relatively minor economic interests at stake is "peculiarly appropriate" for class certification. Mem. (Document 38) at 1:12-20. Plaintiffs explained how their Motion took into account and accommodated the Court's ruling in its November 7, 2017 Order. See id. at 3:14-4:21. Plaintiffs identified the requirements under Rule 23(a) and Rule 23(b) for class certification. See id. at 5:5-6:2. Plaintiffs showed that the Rule 23(a)'s requirements of numerosity, commonality, typicality and adequacy were overwhelmingly satisfied. See id. at 6:3-10:25. Finally, Plaintiffs showed that Rule 23(b)'s requirement for predominance and superiority were also met. See id. at 11:5-12:3. None of this analysis required major effort in light of the facial nature of the claim, which virtually ensures that commonality, typically, predominance and superiority will be met, leaving only adequacy and numerosity, which on the facts at bar are easily met as well. As we now demonstrate, the City failed to engage virtually any of these showings. E. THE CITY FAILS TO REBUT PLAINTIFFS' CLASS SHOWING. Most of the City's Opposition argues the September 2017 amendment and irrelevant (and meritless) merits arguments, with an occasional and unexplained Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 20 of 24 Page ID #:1188 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 -16- class certification point interspersed at random. Then, in the last two pages of the Opposition, the City belatedly purports to address the only issue that matters: have Plaintiffs shown the Landlord Class and Renter Class should be certified. All of the City's arguments are unsupported, irrelevant, or both. In the midst of an argument ostensibly about the merits issue of whether Plaintiffs can establish injury, the City asserts without explanation that Plaintiffs have not provided evidence of an "ascertainable class," which it immediately defines as "numerosity," or any evidence of superiority. See Opp. at 6:22-28. These assertions are recklessly and demonstrably false. Numerosity is satisfied, with over 750,000 rental units subject to the Housing Code. See Notice of Motion (Document 38) at 1-2 n.1; Mem. (Document 38) at 6:4-18.6 Plaintiffs directly address superiority, see Mem. at 11:21-12:3, explaining a class action seeking class-wide relief is inherently superior to having as many as 753,792 separate actions to reach the same result. It is telling that in an opposition to class certification, the City for the first time directly addresses class certification requirements in the last two pages of its Opposition. See Opp. at 10:23-12:17. And its rapid-fire discussion fails to engage Plaintiffs' Motion or its case law support (as well as common sense). The City asserts class certification is inappropriate because "individual determinations would have to be made about a multitude of issues," and then identifies eight such issues. Opp. at 11:2-19. This assertion is rhetorically slap-stick ("Multitude" means a great number, not eight). What is more, the City does not 6 The City's attempt to equate numerosity with an "ascertainable class" is incorrect. Ascertainability means "that there is an administratively feasible way to determine who is in the class," which the Ninth Circuit determined is not an element for class certification because it is nowhere mentioned in Rule 23. See Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1126 (9th Cir.), cert. denied sub nom. ConAgra Brands, Inc. v. Briseno, 138 S. Ct. 313 (2017). Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 21 of 24 Page ID #:1189 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 -17- present evidence or argument why any candidate on this list of eight is either relevant or supported by evidence. None are. Specifically:  Item "A" is whether a property owner has actually paid an inspection fee. The Court has ruled that if a landlord paid the inspection fee, they have standing, and as a matter of logic, that would extend to renters who reimbursed their landlords. The City does not assert it lacks electronic data that would establish this, and the members of the class could self-identify - and none of this is relevant to a facial challenge seeking injunctive relief in any event.  Item "B" is whether the renters reimbursed their landlords. This does not defeat commonality and is irrelevant for the same reasons as Item A.  Item "C" has something (undefined) to do with "any claim of exemption [that] was filed for individual units." The City leaves the relevance of this baffling claim unexplained, especially in the context of a facial challenge.  Item "D" is whether there is a "common damages theory." A common damages theory would be child's play - but in the case's present procedural posture damages are not in play.  Item "E" relates to the City's purported qualified immunity defense, a defense which is wholly lacking in merit. See supra Section II.C.4.  Item "F" is obtaining witness statements as to who had standing to contest an inspection. The City offers no explanation why this would defeat commonality, and it would not as explained in response to Item A above.  Item "G" is "[a]ssessment of warrant exceptions." The City's discovery responses stated during the relevant time period there were three Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 22 of 24 Page ID #:1190 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 -18- searches conducted pursuant to administrative warrants-three out of over 750,000.  Item "H" is exhaustion of administrative remedies. The City fails to provide a word of explanation of why this has any relevance or what administrative remedies there were to exhaust (Plaintiffs know of none). CONCLUSION The Supreme Court has ruled that a facial challenge to a statute on behalf of a class is "peculiarity appropriate" for class certification, Califano, 442 U.S. at 701, which (a) is controlling, (b) self-evidently comports with common sense, (c) was emphasized on page one of Plaintiffs' Memorandum, and (d) was ignored by the City. The City's casual filing of its Opposition one week late is part and parcel of a an evident lack of appreciation of its obligation to present the Court with argument and assertions "formed by inquiry reasonable under the circumstances." Fed. R. Civ. P. 11(b). Ten minutes of research would have informed the City when its Opposition was due under Rule 6(a)(1)(C); would have informed the City an office move does not justify blowing filing deadlines; and would have informed the City an opposition to class certification should not make irrelevant merits arguments (particularly where the Court has already rejected those arguments). Any good faith attempt to read and analyze Plaintiffs' Motion would have indicated to the City that the handful of scattered arguments it made on class certification were without merit and were anticipated and answered in Plaintiffs' Motion, although resolutely ignored in the City's Opposition. / / / / / / / / / / / / Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 23 of 24 Page ID #:1191 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 -19- In sum: Plaintiffs have solidly supported their Motion for certification for the proposed Landlord Class and proposed Renter Class, and the City has failed to undermine that showing in any fashion. Plaintiffs therefore respectfully submit that their Motion be granted in all respects. Respectfully submitted, Dated: January 8, 2018 By Dominic Surprenant Attorneys for BRANDI GARRIS, JOHN SWITZER and JASON TEAGUE Case 2:17-cv-01452-MWF-E Document 42 Filed 01/08/18 Page 24 of 24 Page ID #:1192