Brandi Garris et al v. City of Los Angeles

NOTICE OF MOTION AND MOTION to File First Amended Complaint

C.D. Cal.August 20, 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) NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: October 15, 2018 Time: 10 a.m. Crtm: First Street Courthouse, 5A Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 1 of 27 Page ID #:1494 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- PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR RECONSIDERATION AND MOTION FOR LEAVE TO AMEND THE COMPLAINT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 15, 2018, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 5A of the First Street Courthouse, located at 350 West First Street, Los Angeles, California 90012, Plaintiffs John Switzer and Jason Teague ("Plaintiffs") will and hereby do move for an order granting Plaintiffs leave to file a First Amended Complaint against Defendants the City of Los Angeles and Los Angeles Housing and Community Investment Department (together, “the City”). This Motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities, the concurrently-filed declarations of Michael A. Lombardo, Jason Teague, John Switzer and the exhibits attached thereto, the records and files of this Court, any matters of which the Court may take judicial notice, and such further evidence and argument as may be presented at or before the hearing on this matter. Pursuant to L.R. 7-3, on July 10, 2018, Plaintiffs' counsel met and conferred on this Motion with counsel for Defendants. See Declaration of Michael Lombardo dated August 20, 2018, ¶ 2. Respectfully submitted, Dated: August 20, 2018 By Dominic Surprenant Attorneys for JOHN SWITZER and JASON TEAGUE Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 2 of 27 Page ID #:1495 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 Memorandum of Points and Authorities ..................................................................... 1 Preliminary Statement ................................................................................................. 1 Statement of Facts ........................................................................................................ 5 A. The Residences Owned Or Occupied By The Class Representatives And Virtually Each Member Of Both Putative Classes Had Been Inspected Pursuant To The Challenged Ordinance At The Time The Court Dismissed Plaintiffs' Damages Claim On The Basis That The Complaint Did Not Allege Such Inspections. ......................................................................... 5 B. The Class Representatives And Each Member Of Both Putative Classes Paid An Inspection Fee That Was Expressly Intended For And Used To Pay For The Illegal Inspections. ................................ 6 C. The Challenged Ordinance Coerced Involuntary Consent To The Inspections On A Class-Wide Basis. ...................................................... 7 D. The Current Ordinance Informs Landlords And Tenants Of Their Right To Object To the Search, Provides Precompliance Review, Requires Administrative Warrants, And Expressly Stipulates That No Fees, Penalties Or Costs Will Be Imposed For Objecting To An Inspection Notice, Each Of Which Was Absent In The Challenged Ordinance. ............................................................................ 8 E. Class-wide Notice Threatening Additional Fees Absent Consent ........ 10 Argument ................................................................................................................... 11 II. THE COURT HAS INHERENT AUTHORITY TO RECONSIDER ITS PRIOR ORDER AND SHOULD DO SO HERE. ................................... 11 A. The Court Has The Inherent Authority To Reconsider Prior Orders. ................................................................................................... 11 B. Good Cause Exists For The Court To Exercise Its Inherent Authority To Reconsider Its Dismissal Of Plaintiffs' Damages Claim In The Original Complaint Without Leave To Amend. ............. 11 III. LEGAL STANDARD FOR GRANTING LEAVE TO AMEND UNDER RULE 15(A). .................................................................................... 12 IV. THE CITY CAN SHOW NO PREJUDICE AS A RESULT OF THE AMENDING THE COMPLAINT TO ADD THE AMENDED DAMAGES CLAIM. ...................................................................................... 13 V. OTHER FOMAN FACTORS LIKEWISE SUPPORT GRANTING LEAVE TO AMEND. ..................................................................................... 15 Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 3 of 27 Page ID #:1496 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- A. No Undue Delay .................................................................................... 15 B. No Indicia of Bad Faith ......................................................................... 16 C. The Added Damages Claim Is Not Futile ............................................. 16 D. No Previous Amendments .................................................................... 19 Conclusion ................................................................................................................. 19 Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 4 of 27 Page ID #:1497 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 Acad. of Motion Picture Arts & Scis. v. GoDaddy.com, Inc., No. CV 10-3738 ABC (CWX), 2011 WL 13128845 ( C.D. Cal. Sept. 6, 2011) .................................................................................. 13 Bowles v. Reade, 198 F.3d 752 (9th Cir. 1999) ........................................................................... 15 Branche v. Hetzel, 241 Cal.App.2d 801 (Ct. App. 1966) .............................................................. 18 Bumper v. North Carolina, 391 U.S. 543 (1968) .......................................................................................... 4 Camera v. Municipal Court, 387 U.S. 523 (1967) .......................................................................................... 2 Cheek v. United States, 498 U.S. 192 (1991) ........................................................................................ 10 City of Los Angeles Harbor Division v. Santa Monica Bay Keeper, 254 F.3d 882 (9th Cir. 2001) ........................................................................... 11 City of Los Angeles, v. Patel, 135 S. Ct. 2443 (2015) ...............................................................................17-18 County of Solano v. Vallejo Redevelopment Authority, 75 Cal.App.4th 1262 (Ct. App. 1999) ............................................................. 18 DCD Programs, Ltd. v. Leighton, 833 F.2d 183 (9th Cir. 1987) ........................................................................... 13 Dixon v. Magna-RX, Inc., No. 14-07196 BRO (GJSX), 2016 WL 1397584 (C.D. Cal. Mar. 31, 2016) ................................................................................................................ 15 Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) ..................................................... 2, 4, 18 Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006) .............................................................................. 2 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003) ............................................................. 11, 12, 13 Foman v. Davis, 371 U.S. 178 (1962) ............................................................................ 13, 14, 19 Gabrielson v. Montgomery Ward & Co., 785 F.2d 762 (9th Cir. 1986) ........................................................................... 12 Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 5 of 27 Page ID #:1498 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- Garner Properties & Mgmt. v. Charter Twp. of Redford, No. 15-14100, 2017 WL 3412080 (E.D. Mich. Aug. 9, 2017) ....................... 10 Howey v. United States, 481 F.2d 1187 (9th Cir. 1973) ......................................................................... 15 Miller v. Rykoff-Sexton, Inc., 845 F.2d 209 (9th Cir. 1988) ........................................................................... 16 Rosenberg Bros. & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) ........................................................................... 13 SAES Getters S.p.A. v. Aeronex, Inc., 219 F. Supp. 2d 1081 (S.D. Cal. 2002) ........................................................... 16 Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .......................................................................................... 7 See v. City of Seattle, 387 U.S. 541 (1967) .......................................................................................... 2 Sorosky v. Burroughs Corp., 826 F.2d 794 (9th Cir.1987) ............................................................................ 16 Thomas v. Hous. Auth. of Cty. of Los Angeles, No. CV 04-6970, 2005 WL 6136322 (C.D. Cal. Sept. 19, 2005) ............................................................................... 11 Thompson v. City of Oakland, Ohio, 307 F. Supp. 3d 761 (S.D. Ohio 2018) ..................................................... passim TracFone Wireless, Inc. v. Cty. of Los Angeles, 163 Cal. App. 4th 1359 (Ct. App. 2008) ......................................................... 18 Trans Video Elecs., Ltd. v. Sony Elecs., Inc., 278 F.R.D. 505 (N.D. Cal. 2011), aff’d, 475 F. App’x 334 (Fed. Cir. 2012) ........................................................ 16 U.S. v. $124,570 U.S. Currency, 873 F.2d 1240 (9th Cir. 1988) ........................................................................... 2 U.S. v. Bulacan, 156 F.3d 963 (9th Cir. 1988) ............................................................................. 1 United States v. Monsanto, 491 U.S. 600 (1989) ........................................................................................ 18 United States v. Shaibu, 920 F.2d 1423 (9th Cir. 1990) ....................................................................... 4, 8 United States v. Worley, 193 F.3d 380 (6th Cir. 1999) ..........................................................................7-8 Vokal v. United States, 177 F.2d 619 (9th Cir. 1949) ........................................................................... 10 Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 6 of 27 Page ID #:1499 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 -v- Statutes Fed. R Civ. P. 15(a)(2) ............................................................................................... 12 Fed. R. Evid. 407 ......................................................................................................... 3 Other Authorities Los Angeles Municipal Code § 151.05.1 .................................................................... 7 Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 7 of 27 Page ID #:1500 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- MEMORANDUM OF POINTS AND AUTHORITIES Pursuant to the Court’s Order re Extension of Time (Document 71), Plaintiffs file this memorandum in support of their Motions (a) to reconsider the dismissal without leave to replead of Plaintiffs’ damages claims (“Motion to Reconsider”) and (b) for leave to file a First Amended Complaint (“Motion for Leave”). PRELIMINARY STATEMENT As the well pleaded allegations in the proposed First Amended Complaint demonstrate, a red-line draft of which is attached as Exh. 1, a clean draft as Exh. 2, to the Declaration of Michael Lombardo dated August 20, 2018 ("Lombardo Declaration"), filed herewith, each member of both putative classes (a) had their private residences searched by city inspectors clothed with full police powers absent probable cause, precompliance review or an administrative warrant and without the class members’ voluntary consent, which "consent" was coerced on a class-wide basis, and (b) paid inspection fees that were expressly used to fund the unconstitutional inspections. These allegations strongly support granting both of Plaintiffs’ Motions. It may assist the Court to clarify the nature of Plaintiffs’ challenges to the Inspection Ordinance prior to its recent amendments. At the status conference on July 30, 2018, the Court observed that the City had a legitimate interest in the periodic inspection of rental residences and appeared to suggest that the City's legitimate interest somehow undercut Plaintiffs' claims, including their damages claim. Plaintiffs have never disputed the City's interest but instead have recognized it from the outset. See, e.g., Document 14 at 5:14-15 (“To be sure, and as the City argues, it has a legitimate interest in inspecting rental residential dwellings”). But the legitimate interest of the government to inspect was equally if not more compelling with respect to the various inspection schemes the Supreme Court, the Ninth Circuit and other courts have struck down as unconstitutional violations of the Fourth Amendment. See, e.g., U.S. v. Bulacan, 156 F.3d 963 (9th Cir. 1988) Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 8 of 27 Page ID #:1501 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- (searches at a federal building); U.S. v. $124,570 U.S. Currency, 873 F.2d 1240 (9th Cir. 1988) (searches at airport security); Camera v. Municipal Court, 387 U.S. 523 (1967) (searches of private residences); See v. City of Seattle, 387 U.S. 541 (1967) (searches of commercial warehouse); Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) (searches to combat international terrorism in the wake of 9/11) (vacated in Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006) as moot following Amendments to the unconstitutional statute); Thompson v. City of Oakland, Ohio, 307 F. Supp. 3d 761 (S.D. Ohio 2018) (searches of private residences). The last case cited, Thompson, decided just months ago, the facts of which are directly parallel to those at bar and the legal analysis directly applicable as well, illustrates that the legitimate interest a municipality has in an inspection ordinance does not immunize the ordinance from facial constitutional challenge and that, when the ordinance on its face violates the Fourth Amendment, a full refund of all fees paid to fund the ordinance by those whose residences were searched is the appropriate remedy. In short, Thompson is this case. In Thompson, the city had an inspection ordinance that (until, as here, amended in the course of the litigation to correct its constitutional defects) required warrantless inspections, at the cost of $60 to the owner, before a residence could transfer ownership or change tenants. Id. at 766. The intent of the ordinance was the plainly legitimate objective of improving the safety and quality of the city’s aging “housing stock,” and the city credited the inspection ordinance with its “rising home values” and “scant number of fire and structural events.” Id. at 766-767. Yet there, the district court certified the class of owners of properties subject to the ordinance, granted partial summary judgment in favor of their Section 1983 claim and their unjust enrichment claim, in which they sought full restitution of the inspections fees paid by the class. See generally id. at 770-784. Importantly there, as should be found here, the court rejected the city's argument that the home owners had consented to the searches, finding any consent was coerced by the face of the Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 9 of 27 Page ID #:1502 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- ordinance. See id. at 775 (holding consent not voluntary because failure to consent resulted in a denial of a certificate of occupancy and a criminal penalty). Here, the City’s amendments confirm that the City could have satisfied its legitimate interest in inspecting private rental residences without class-wide violations of the class’s core Fourth Amendment rights. Those amendments cured the Bulcan unconstitutionality (by eliminating the police powers granted city inspectors to inspect private rental residences without probable cause) and cured the Patel unconstitutionality (by providing landlords and renters the right to object to inspections, providing precompliance review and requiring an administrative search warrant). While the amendments would classify as “subsequent remedial measures” and hence cannot be used to establish liability under Federal Rule of Evidence 407, they are admissible (and compelling) evidence that the City could have fully achieved its legitimate goals without trenching on the core Fourth Amendment rights of the landlords and tenants of the 750,000 rental residences subject to the Inspection Ordinance. See Fed. R. Evid. 407 (subsequent remedial measures admissible to show “feasibility of precautionary measures”). And, as the Thompson case demonstrated just months ago on virtually parallel facts, the law provides a remedy for the City’s unnecessary intrusion on the putative classes’ constitutional rights. As shown below, the following allegations in the proposed First Amended Complaint cannot be disputed. • The private residences of both class representatives and virtually all members of both putative Classes were searched during the class period by city inspectors clothed with police powers without probable cause, precompliance review or an administrative warrant. • Each member of both putative classes paid a fee, or reimbursed their landlord for paying a fee, of $43.32 per year that the Inspection Code itself states was expressly intended to fund the illegal searches. Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 10 of 27 Page ID #:1503 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- • The Inspection Ordinance coerced consent to the searches on a class-wide basis in two ways, hence none of the searches was conducted with voluntary and effective consent. First, under clearly established precedent, where a statute indicates failure to allow the search could result in monetary fines or criminal liability, every search conducted pursuant to that administrative scheme is coerced and hence non-voluntary. See, e.g., Thompson, 307 F. Supp. 3d at 755. Here, the Inspection Ordinance provided that both monetary fines and criminal liability could result from failure by a landlord or tenant to allow a search. Second, any reasonable landlord or tenant would have understood from the face of the Challenged Ordinance that he or she had no right to refuse the City's demand for an inspection. Prior to its recent amendments, the Inspection Ordinance (a) stated that the City was required to search each residence at least every three years, (b) asserted that the City could do so without obtaining an administrative warrant or providing precompliance review, and (c) did not inform the landlord or tenant they have a right to object (the amendments corrected each of these defects). Under persuasive case law, the Challenged Ordinance coerced any “consent” because no reasonable member of the class would think they have any recourse but to submit to an inspection. See, e.g., Doe, 334 F. Supp. 2d at 501. As the Ninth Circuit ruled in U.S. v. Shaibu, 920 F.2d 1423, 1225-26 (1990), “free and voluntary consent [to a Fourth Amendment search] cannot be found by a showing of mere acquiescence to a claim of lawful authority” (citing Bumper v. North Carolina, 391 U.S. 543, 548-549 (1968)). Here, the Inspection Ordinance claimed “lawful authority” to search without precompliance review or obtaining an administrative warrant. Hence, “free and voluntary consent” cannot be found on a class-wide basis. Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 11 of 27 Page ID #:1504 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- Had the City’s Inspection Ordinance been written from the outset as it has been recently amended, this litigation would never have been brought. The recent amendments show that the City could have achieved its legitimate interest in inspecting rental residences without engaging in class-wide constitutional violations. The law provides a remedy for those violations, namely, refunds of the fees the class paid to “finance” those very searches of their own residences. See Document 1-1, § 161.352. Under well-established law and well-pleaded allegations, Plaintiffs request an opportunity to pursue that remedy. STATEMENT OF FACTS The following Statement of Facts and Argument will refer to the ordinance at the time of the Complaint as the “Challenged Ordinance” and to the recently amended ordinance as the “Current Ordinance”. The Challenged Ordinance is attached as Exhibit A to the Complaint, Document 1-1, and the Current Ordinance Amendments as Exhibit 3 to the Lombardo Declaration. A. The Residences Owned Or Occupied By The Class Representatives And Virtually Each Member Of Both Putative Classes Had Been Inspected Pursuant To The Challenged Ordinance At The Time The Court Dismissed Plaintiffs' Damages Claim On The Basis That The Complaint Did Not Allege Such Inspections. In the Complaint, Plaintiffs sought damages in the form of restitution of the inspections fees that the named Plaintiffs and the Landlord and Renter Classes had paid pursuant to Section 161.352. See Document 1, Prayer for Relief, ¶ 83(e)-(f), at 18. On November 7, 2017, the Court dismissed, without leave to replead, Plaintiffs' damages claim on the basis that the Complaint did not allege that the residences the Landlord Class Members owned, or the residences where the Renter Class members resided, had been inspected by the City pursuant to the Challenged Ordinance. See Document 31 at 28-29. If given an opportunity, Plaintiffs easily could have cured that defect by amendment. At that time, the residences owned by the Landlord Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 12 of 27 Page ID #:1505 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- Class representative, Jason Teague, and the residences leased by the Tenant Class representative, John Switzer, had been inspected, as had virtually all of the residences owned by the absent class members of the Landlord Class and virtually all of the residences where absent class members of the Tenant Class resided. Residences owned by Mr. Teague were searched in March and May 2016 and January 2017. See Declaration of Jason Teague dated August 15, 2018, ¶ 4. The residences of Renter Class Representative Mr. Switzer had been inspected in July and August 2016. See Declaration of John Switzer dated August 13, 2018, ¶ 4. With respect to absent class members, at the time the Complaint was filed through the time the Court dismissed Plaintiffs' damages claim, Section 161.353 stated that each apartment subject to the Inspection Ordinance "shall be inspected at least once every three years." Document 1-1 at 6 of 26. The Complaint was filed on February 22, 2017, but the class period began two years prior to October 8, 2016, the date on which counsel for Plaintiffs served a demand on the City pursuant to the City's Administrative Code, § 350. See Document 1-2 (Surprenant letter to City Clerk and City Attorney). Hence, the class period had begun three years and one month before the Court's November 7, 2017 dismissal of Plaintiffs' damages claim. By statute, all apartments subject to the Inspection Ordinance would have been searched at least once during that thirty-seven month period. B. The Class Representatives And Each Member Of Both Putative Classes Paid An Inspection Fee That Was Expressly Intended For And Used To Pay For The Illegal Inspections. Pursuant to the Challenged Ordinance, each member of the Landlord Class had to pay an inspection fee of $43.32 "per unit per year." Document 1-1, ¶ 161.352, at 6 of 26. The fee was expressly intended to "be used to finance the costs of inspection and enforcement by the Department." Id. Landlord Class representative Mr. Teague had paid the Inspection Fees for the apartments he owned. Document 1-2 at 12-13. An administrative procedure allows the landlord to Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 13 of 27 Page ID #:1506 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- recoup from tenants the Inspection Fee on an annual basis with twelve monthly payments added to lease payments. See Los Angeles Municipal Code § 151.05.1. Renter Class representative Mr. Switzer had repaid his landlord for the .352 inspection fee pursuant to this procedure. Document 1-2 at 14-15. Given the definitions of the Landlord Class and Renter Class in the original Complaint (at paragraphs 48 and 49), and in the Proposed First Amended Complaint (at paragraphs 55 and 56), each absent class member of both putative classes had paid the Inspection Fee at the time of the Court's dismissal of Plaintiffs' damages claim. C. The Challenged Ordinance Coerced Involuntary Consent To The Inspections On A Class-Wide Basis. Valid, voluntary consent by the person in control of a residence to an inspection or search of the residence is constitutionally sufficient under Fourth Amendment case law, even if the government actor inspecting or searching the residence does not have a search warrant, an administrative warrant, or probable cause to believe the inspection or search will identify evidence of criminal behavior. However, the government cannot coerce consent, no matter how implicit or subtle the coercion is. See, e.g., Complaint, Document 1, ¶ 33 at 9-10, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) ("'the Fourth and Fourteenth Amendments require that consent not be coerced, by explicit or implicit means, by implied threat or covert force . . . . For, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed'"). The constitutional vigilance against coerced consent to government searches applies with full force in the context of municipal residential inspection schemes. See Thompson, 307 F. Supp. 3d at 775 ("When evaluating the validity of an individual's consent under the Fourth Amendment, the Sixth Circuit has stated that 'not any type of consent will suffice, but instead, only consent that is unequivocally, specifically, and intelligently given, uncontaminated by any duress and coercion.’ United States v. Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 14 of 27 Page ID #:1507 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- Worley, 193 F.3d 380, 386 (6th Cir. 1999)") (second quotation omitted); See also Shaibu, 920 F.2d at 1425–26 (it is the government’s burden to prove consent was given with “no duress or coercion, express or implied. Consent must be “unequivocal and specific” and “freely and intelligently given”). Here, there was nothing subtle or implicit in how the Challenged Ordinance coerced consent to inspections on a class-wide basis. The Challenged Ordinance expressly stated that the City was required to search each unit subject to the Ordinance at least once every three years, if not more often (Document 1-1, § 161.353); the City did not need an administrative warrant to do so (id., § 161.601, third paragraph); the City did not inform the landlord or tenant they could refuse consent to the search the City was expressly required to perform; the City did not offer a method or allow time for pre-compliance review; and the Ordinance provided that "[a]ny person or entity violating this article shall be liable for a civil fine of up to $1,000 for each day the violation is committed or permitted to continue" and that “[a]ny person violating any of the provisions, or failing to comply with any of the requirements of this article shall be guilty of a misdemeanor” (id., §§ 161.905 & .906) (emphasis added). In short, the Challenged Ordinance's coercion of consent on a class-wide basis was both express and implicit and involuntary as a matter of blackletter constitutional law. D. The Current Ordinance Informs Landlords And Tenants Of Their Right To Object To the Search, Provides Precompliance Review, Requires Administrative Warrants, And Expressly Stipulates That No Fees, Penalties Or Costs Will Be Imposed For Objecting To An Inspection Notice, Each Of Which Was Absent In The Challenged Ordinance. The Current Ordinance amended Section 161.405 to strike “[f]or the purposes of enforcing this article, the General Manager shall have the powers of a law enforcement officer.” Compare Lombardo Declaration Exh. 3 with Document 1-1, Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 15 of 27 Page ID #:1508 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- § 161.405. It repealed Sections 161.410.1 and 161.410.2, see Lombardo Declaration Exh. 3 at 4, and added the specific ordinances or statutes the city employee has the duty to enforce to the Current Ordinance, see id. In sum, these amendments stripped the General Manager and his designees of the inclusive “powers of a law enforcement officer” and instead restricted their arrest powers to violations of the specific ordinances and statutes they are empowered to enforce. The Current Ordinance amended Section 161.601 in a number of material ways. It required that the inspection notice be served at least 30 calendar days prior to the inspection. See Lombardo Declaration Exh. 3 at 5, § 161.601.B. It informs the landlord and tenant of their right to “object to the inspection” and to seek pre- compliance review within that 30 day notice period. See id., § 161.601.C. In the event “consent to conduct an inspection is refused or cannot be obtained,” it commands (“shall”) the General Manager to obtain an administrative warrant in order to conduct the inspection and provides a procedure for the tenant or landlord to question the issuance of the administrative warrant “before the judicial officer who issued the warrant.” See id., § 161.601.D. Finally, the Current Ordinance expressly called out, in added Section 161.907, that “[n]o civil or criminal fine, penalty or cost shall be imposed for seeking pre-compliance review of an inspection notice.” See Exh. 3 at 11. Thus, the Current Ordinance, on its face, informs parties subject to it of their right to object to an inspection; specifies an opportunity for pre-compliance review before the City seeks an administrative warrant; requires an administrative warrant if, after pre-compliance review, the tenant or landlord still objects to the inspection, and gives an opportunity for pre-compliance review to the administrative warrant itself; and expressly calls out that a landlord or tenant can object to an inspection notice without being subject to fines, penalty or cost. The differences between the Challenged Ordinance and the Current Ordinance are night and day. The law presumes that the reasonable person knows Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 16 of 27 Page ID #:1509 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- the law, both in criminal and civil litigation. See Cheek v. United States, 498 U.S. 192, 199 (1991); see also Vokal v. United States, 177 F.2d 619, 625 (9th Cir. 1949). Hence, under the Challenged Ordinance, the landlord or tenant was presumed to know (a) the City claimed the absolute right to inspect any residence subject to the Ordinance;1 (b) the City claimed it could exercise this absolute right without either providing pre-compliance review or obtaining an administrative warrant;2 (c) it provided no notice to the landlord or tenant that they could object to an inspection; (d) indicated that failure to allow the inspection could result in “a civil fine of up to $1,000” per day; see 1-1 at 23, § 161.905; and (e) that “[a]ny person violating any of the provisions, or failing to comply with any of the requirements” of the Challenged Ordinance “shall be guilty of a misdeameanor,” see id., § 161.906. E. Class-wide Notice Threatening Additional Fees Absent Consent Exhibit 5 to the Lombardo Declaration is the notice that the City provided to landlords of upcoming inspections under the Challenged Ordinance. Plaintiffs understand that this notice was the standard notice that the City used throughout the class period. Like the Inspection Ordinance itself, it nowhere stated or suggested that the landlord or tenant could refuse to allow a noticed inspection to go forward. On the contrary, it stated that failure to provide access to the residence could result in additional fees and costs to the landlord. It first commanded the landlord to 1 See Document 1-1, § 161.353 (“each building shall be inspected at least once every three years”). 2 See id., § 161.601, third paragraph (the City had the option, but not the requirement, to obtain an administrative warrant when consent was refused); see generally 1-1 (no requirement for precompliance review). See Garner Properties & Mgmt. v. Charter Twp. of Redford, No. 15-14100, 2017 WL 3412080, at *10, 12-13 (E.D. Mich. Aug. 9, 2017) (broad statements that the City may pursue recourse as provided by law when consent is refused does not satisfy precompliance review requirements). The City admitted in discovery that it had obtained only three administrative warrants in the class period. See Lombardo Declaration, Exh. 4 at 10. Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 17 of 27 Page ID #:1510 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- “[a]rrange access into all rental units, common areas, and other parts of the property.” It then stated that the “inspection can proceed more quickly and you [the landlord] can avoid additional fees if you verify access prior to the inspection date.” (emphasis added). ARGUMENT II. THE COURT HAS INHERENT AUTHORITY TO RECONSIDER ITS PRIOR ORDER AND SHOULD DO SO HERE. A. The Court Has The Inherent Authority To Reconsider Prior Orders. District courts have the “inherent authority to reconsider interlocutory rulings at any time prior to final judgment.” Thomas v. Hous. Auth. of Cty. of Los Angeles, No. CV 04-6970, 2005 WL 6136322 at *4, 8 (C.D. Cal. Sept. 19, 2005) (granting reconsideration pursuant to inherent authority even though L.R. 7-18 reconsideration requirements were not met). A court can exercise its inherent “power to rescind, reconsider or modify an interlocutory order . . . either of its own motion or on motion or suggestion by a party or interested person.” City of Los Angeles Harbor Division v. Santa Monica Bay Keeper, 254 F.3d 882, 886-87 (9th Cir. 2001) (quotations and emphasis omitted). B. Good Cause Exists For The Court To Exercise Its Inherent Authority To Reconsider Its Dismissal Of Plaintiffs' Damages Claim In The Original Complaint Without Leave To Amend. Leave to replead should be freely given. See infra Point III. “Dismissal with prejudice and without leave to amend is not appropriate unless it is clear … that the complaint could not be saved by amendment.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “A district court's failure to consider the relevant factors and articulate why dismissal should be with prejudice instead of without prejudice may constitute an abuse of discretion.” Id. Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 18 of 27 Page ID #:1511 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- Here, the Court's dismissal of Plaintiffs' damages claim without leave to amend on the original Complaint did not "articulate why dismissal should [have] be[en] with prejudice instead of without prejudice." Document 31 at 28-29. The Court's rationale for why Plaintiffs' damages claim was defective was that Plaintiffs had not expressly alleged that the residences owned by the Landlord Class and its representative Mr. Teague, and the residences of the members of the Renter Class and its representative Mr. Switzer, had been searched. See Document 31 at 28-31. Plaintiffs easily could have remedied that defect if given leave to replead. See supra, Statement of Facts, Point A. Hence there is a compelling case that the Court should reconsider its prior order and go on to consider Plaintiffs' Motion for Leave. Plaintiffs submit that the Motion for Leave is highly meritorious and should be granted. Even if the Court were to disagree and deny the Motion for Leave, however, doing so would provide the Court with a vehicle to "articulate why dismissal [was] with prejudice instead of without prejudice." Eminence, 316 F. 3d at 1052. Plaintiffs therefore respectfully request that the Court reconsider its November 7, 2017 Order and consider Plaintiffs' Motion for Leave on the merits. III. LEGAL STANDARD FOR GRANTING LEAVE TO AMEND UNDER RULE 15(A). Under Federal Rule of Civil Procedure 15(a), once the period in which a party may amend a pleading as a matter of right has expired, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed. R Civ. P. 15(a)(2) (emphasis added). The Ninth Circuit has noted “on several occasions . . . that the ‘Supreme Court has instructed the lower federal courts to heed carefully the command of Rule 15(a), Fed. R. Civ. P., by freely granting leave to amend when justice so requires.’” Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986) (citation omitted). “Rule 15's policy of favoring amendments to Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 19 of 27 Page ID #:1512 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- pleadings should be applied with ‘extreme liberality.’” Acad. of Motion Picture Arts & Scis. v. GoDaddy.com, Inc., No. CV 10-3738 ABC (CWX), 2011 WL 13128845, at *2 (C.D. Cal. Sept. 6, 2011) (citing Rosenberg Bros. & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per curiam) (additional citation omitted). The five factors that courts use to evaluate the propriety of a motion for leave to amend are: (1) undue delay, (2) bad faith or dilatory motive on the part of the movant, (3) repeated failure of previous amendments, (4) undue prejudice to the opposing party, and (5) futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). Each factor is not given equal weight. Rather, prejudice to the opposing party is the “touchstone” of the amendment analysis. Eminence, 316 F.3d at 1052. “Absent prejudice, or a strong showing of any other Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id. IV. THE CITY CAN SHOW NO PREJUDICE AS A RESULT OF THE AMENDING THE COMPLAINT TO ADD THE AMENDED DAMAGES CLAIM. The consideration of prejudice to the opposing party carries the greatest weight in determining whether amendment is appropriate under Rule 15(a). Id. The party opposing amendment bears the burden of showing prejudice. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Here, the City can show no cognizable prejudice flowing from the Court granting Plaintiffs' Motion for Leave. To the contrary, granting the Motion for Leave would further judicial efficiency for this Court, the Ninth Circuit, and the efficient resolution of this dispute from the parties' perspective as well. First, the City would not be prejudiced from granting the Motion for Leave to add back Plaintiffs' damages claim. The City cannot claim surprise; it has known from the outset of the case of Plaintiffs’ damages claim, in the form of recouping all Section 161.352 fees paid to the City by the Landlord Class and Renter Class. The amended complaint would add no new theories of liability, and hence would not Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 20 of 27 Page ID #:1513 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- require the City to conduct any additional factual or legal research or analysis. The facts that would be added to the amended complaint have long been known to the City, namely that the class representatives' residences were searched (available to the City from its own records) and that all the residences subject to the Inspection Ordinance have been inspected at least once during the class period (known to the City by operation of Section 161.353). The Court has not issued a scheduling order setting discovery or exchange of expert report deadlines, and the amount of damages is known to the City to the dollar — the City publishes in its annual budgets the amount of Section 161.352 fees collected and has provided the number of residential units searched and fees collected in discovery. See Lombardo Declaration, Exh. 4 at 5-6. Second, the City would actually benefit from the Motion for Leave being granted. As shown below, the amended claim would not be futile; rather, it has obvious merit (it is virtually the same claim as to which the district court in Thompson just months ago granted the plaintiff class’s summary judgment on liability and damages in the form of the very restitution of inspection fees Plaintiffs seek to pursue here, see infra IV.C.). To deny the motion to amend would not allow the Court to adjudicate the claim on the merits, and given the exceedingly liberal standard for motions to amend, the most likely result would be to require the parties to litigate one appeal to the Ninth Circuit after denial of the Motion for Leave, and another one after remand, when the matters would have only grown more stale and hence less efficient to litigate. In short, in terms of prejudice to the adverse party, the most important element that determines whether a motion for leave to amend should be granted, the weight is entirely in favor of granting the motion. As we now show, all other Foman factors also support granting the Motion. Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 21 of 27 Page ID #:1514 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- V. OTHER FOMAN FACTORS LIKEWISE SUPPORT GRANTING LEAVE TO AMEND. A. No Undue Delay The Court is to consider whether Plaintiffs’ proposed amendments will unduly delay the litigation. Dixon v. Magna-RX, Inc., No. 14-07196 BRO (GJSX), 2016 WL 1397584, at *4 (C.D. Cal. Mar. 31, 2016). “Undue delay by itself, however, is insufficient to justify denying a motion to amend.” Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999).3 Here, there is no risk that the litigation will be unduly delayed as a result of Plaintiffs’ proposed amendment. The City may argue that Plaintiffs have unduly delayed, in light of the fact that the Court dismissed their damages claim in November 2017, and Plaintiffs did not pursue the matter until July 2018, some eight months later. Such an argument would lack merit. After the Court dismissed Plaintiffs' damages claim without leave to replead, Plaintiffs determined that they did not have a plausible argument that the reconsideration requirements of Local Rule 7-18 were satisfied. What is more, Plaintiffs had a live claim for injunctive relief against the City's ongoing violations of Plaintiffs' core Fourth Amendment rights and rather than pursuing discretionary relief from the Court on damages, Plaintiffs determined it was in their best interest to instead pursue their claims for injunctive relief, which the City's July 2018 amendments in effect gave them across-the-board. Within literally days after that was done, Plaintiffs informed the City they would be requesting the Court to exercise its inherent authority to reconsider its damages ruling. See Lombardo Declartion, ¶ 2 & Exh. 6. Allowing the filing of the First Amended Complaint will also not delay the proceedings in any way. There is no scheduling order in place. Prior to the City’s 3 See also Howey v. United States, 481 F.2d 1187, 1191 (9th Cir. 1973) (“Only where prejudice is shown or the movant acts in bad faith are courts protecting the judicial system or other litigants when they deny leave to amend a pleading.”). Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 22 of 27 Page ID #:1515 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- amendments, Plaintiffs intended to take one short, two hour or less deposition about the inspection notice the City used during the period of the Challenged Ordinance. See id., Exh. 7. Adding the damages claim will not necessitate any other discovery. In short, there was no undue delay by Plaintiffs in seeking leave to file their First Amended Complaint, and their doing so now will not delay these proceedings. B. No Indicia of Bad Faith Plaintiffs are not seeking to amend in “bad faith.” This factor is “understood to mean such tactics as, for example, seeking to add a defendant merely to destroy diversity jurisdiction,” SAES Getters S.p.A. v. Aeronex, Inc., 219 F. Supp. 2d 1081, 1086 (S.D. Cal. 2002) (citing Sorosky v. Burroughs Corp., 826 F.2d 794, 805 (9th Cir.1987)), or a tactic that otherwise “smacks of gaming the Court and opposing party.” Trans Video Elecs., Ltd. v. Sony Elecs., Inc., 278 F.R.D. 505, 510 (N.D. Cal. 2011), aff’d, 475 F. App’x 334 (Fed. Cir. 2012). Here, Plaintiffs simply are seeking to add back a damages claim that was in the original Complaint and have done so in a diligent and prompt matter, as explained supra, IV.A. C. The Added Damages Claim Is Not Futile The standard for a finding of futility is high: “a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (reversing denial of leave to amend answer) (emphasis added). Here, allowing Plaintiffs to file an amended complaint adding a damages claim would plainly not be futile. Given the procedural posture of this Motion, an initial question is what is the burden that Plaintiffs seek to take on as to which there is no futility. It is not whether Plaintiffs can state a claim for liability; the Court has already determined that Plaintiffs met that burden. See Document 31 at 2 & 20. In that same Order, however, the Court found that because Plaintiffs had not specifically alleged that residences of the class representatives and absent class Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 23 of 27 Page ID #:1516 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- members had been searched pursuant to the Inspection Ordinance, they did not have standing to recover the Section 161.352 inspection fees. See id. at 27-29. The Court observed, however, that had Plaintiffs alleged their own residences had been searched, then the “link between the fee and the unconstitutional activity [would have been] strong,” as it was in the Baker case. See id. at 28. The proposed First Amended Complaint so alleges. See Lombardo Decl., Exh. 3 ¶¶ 50-53 at 14. That would seem to end the futility discussion. At the status conference on July 30, 2018, without the benefit of briefing from the parties on the issue, the Court appeared to raise an additional issue, namely whether the recovery of the inspections fees could be pursued on a class-wide basis or whether instead only those landlords and tenants who specifically and affirmatively refused consent for inspections could recover the fee. That issue turns on whether Plaintiffs can show class-wide coercion, i.e., whether the Challenged Ordinance on its face coerces consent such that such consent is involuntary and ineffective. In Plaintiffs’ view, discussion of that issue should be reserved for a motion to dismiss the First Amended Complaint, were the City to file one, but the short answer is that Plaintiffs can show class-wide coercion, on the face of the Challenged Ordinance, under two independent rationales. First, the Thompson case is virtually a template. There, the district court rejected the municipality’s defense that the class had consented to the challenged inspections and found class-wide coercion rendering any consent involuntary in light of misdemeanor liability that the owners faced if they did not allow the inspections, see 307 F. Supp. 3d at 774-775, and as a consequence granted the class’s motion for summary judgment on their unjust enrichment claim for the refund of all inspection fees paid, see id. at 778-780.4 See also City of Los Angeles, 4 California law is clear that “[w]here one obtains a Benefit which he may not Justly retain, he is unjustly enriched and the law creates an obligation…that such Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 24 of 27 Page ID #:1517 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- v. Patel, 135 S. Ct. 2443, 2452-53 (2015) (individuals cannot reasonably be forced to choose between consent and criminal liability). Here, all members of both classes are subject to that misdemeanor liability and civil fines. See supra, Statement of Facts, Point C. Second, even putting aside potential misdemeanor liability and civil fines, on its face the Challenged Ordinance also coerced class-wide consent by (a) claiming the absolute right to search the residences subject to the Ordinance;5 (b) claiming the required search did not require an administrative warrant (see Document 1-1, § 161.601, third paragraph); (c) not providing or allowing precompliance review (see generally id.); and (d) not informing landlords or tenants of the right or ability to refuse consent. The combination of these elements itself coerces consent even in the absence of the threat of civil fees or misdemeanor liability. See Doe, 334 F. Supp. 2d at 494 & 500-504 (national security letter violated Fourth Amendment rights of internet service providers because it directed them to release information covered by the Fourth Amendment, did not inform them they could choose not to provide the information and “made no mention of the availability of judicial review” (at 494), thus “all but the most fearless” recipient of the letter would believe they had to consent). person restore the aggrieved party to his former position by return of the Thing or its Equivalent in money.” Branche v. Hetzel, 241 Cal.App.2d 801, 807 (Ct. App. 1966) (internal quotations omitted). This doctrine of unjust enrichment or restitution has been applied to state agencies and municipalities. See e.g., TracFone Wireless, Inc. v. Cty. of Los Angeles, 163 Cal. App. 4th 1359, 1365–67 (Ct. App. 2008) (allowing claim for refund of involuntarily paid tax); County of Solano v. Vallejo Redevelopment Authority, 75 Cal.App.4th 1262, 1280 (Ct. App. 1999) (requiring refund of money unjustly retained by the City). 5 See Document 1-1, § 161.353 (each unit “shall” be inspected once every three years.). “Shall” in a statute is in effect a command that the act be done. See United States v. Monsanto, 491 U.S. 600, 607 (1989) (finding that “Congress could not have chosen stronger words to express its intent that forfeiture be mandatory” than to state that a court “shall” order forfeiture). Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 25 of 27 Page ID #:1518 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- Allowing the damages claim to be added by way of an amended complaint plainly would not be futile; on the contrary, under two independent and judicially recognized paths the Challenged Ordinance should be read to compel and hence coerce class-wide consent, establishing the predicate for class-wide recovery of the inspection fees that the two putative classes paid. D. No Previous Amendments Leave to amend may be denied where a pleading is proposed after “repeated failure to cure deficiencies by amendments previously allowed.” Foman, 371 U.S. at 182. Here, there have been no previous amendments and no "failure to cure deficiencies by amendments previously allowed." CONCLUSION The law is clear that when a statute on its face violates the Fourth and Fourteenth Amendments and the landlords or tenants paid a fee to fund the inspections, the fee payers whose residences were searched are entitled to recover the fee — or, stated otherwise, the government agency that collected the fee to fund illegal searches is not entitled to be unjustly enriched by keeping it. See Thompson, 307 F. Supp. 3d at 780. Here, the Challenged Ordinance violated the Fourth Amendment under the Bulacan line of cases, and, separately, under the Patel line of cases. Plaintiffs' counsel was surprised at the July 30, 2018 status conference by the Court's observation that a damages class could not be certified because Plaintiffs would not be able to show "numerosity", a comment apparently based on the belief that only a relatively small number of landlords or tenants had affirmatively refused inspections. While numerosity is, of course, properly left for class certification (when the parties will have an opportunity to assist the Court by briefing the issue), controlling precedent compels the conclusion that the Challenged Ordinance coerced consent on a class-wide basis and well-pleaded allegations in the [proposed] First Amended Complaint so establish. Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 26 of 27 Page ID #:1519 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 -20- Plaintiffs' damages claim is not a technical or theoretical challenge to a statute that had innocuous and inconsequential effects. It is a robust claim deeply rooted in constitutional case law, as has been recognized by multiple district courts since the 2015 Patel decision, most recently in Thompson, which is on all fours with the facts of this case. On the face of the statute and undisputed proof of unconstitutional searches of each class members' residence and their payment or reimbursement of the fee used to finance the search, both classes are entitled to the remedy of a refund. For all the foregoing reasons, Plaintiffs respectfully request that their Motion For Leave to file its proposed First Amended Complaint be granted. Respectfully submitted, Dated: August 20, 2018 By Dominic Surprenant Attorney for JOHN SWITZER and JASON TEAGUE Case 2:17-cv-01452-MWF-E Document 72 Filed 08/20/18 Page 27 of 27 Page ID #:1520