Bloom v. City of San Diego

• Court: District Court, S.D. California
• Decided: April 22, 2020
• Docket: 3:17-cv-02324
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BLOOM, STEPHEN Case No.: 17-CV-2324-AJB-MSB CHATZKY, TONY DIAZ, VALERIE 12 ORDER: GRISCHY, PENNY HELMS,

13 BENJAMIN HERNANDEZ, DOUG (1) GRANTING PLAINTIFFS’ HIGGINS, SUZONNE KEITH, 14 MOTION FOR LEAVE TO FILE GERALD STARK, ANNA STARK, and SECOND AMENDED COMPLAINT, 15 DAVID WILSON, individually and on (Doc. No. 93); AND behalf of themselves and all others 16 similarly situated, (2) DENYING WITHOUT PREJUDICE 17 Plaintiffs, AS MOOT PLAINTIFFS’ MOTION 18 v. FOR CLASS CERTIFICATION, (Doc. No. 109). 19 CITY OF SAN DIEGO, Defendant. 20 21 Presently before the Court are: (1) Plaintiffs’ motion for leave to file Second 22 Amended Complaint (“SAC”), and (2) Plaintiffs’ motion for class certification. (Doc. Nos. 23 93, 109.) Defendant City of San Diego (“the City”) opposes both motions. For the reasons 24 set forth below, the Court GRANTS Plaintiffs’ motion for leave to file a SAC and 25 DENIES WITHOUT PREJUDICE AS MOOT Plaintiffs’ motion for class certification. 26 I. BACKGROUND 27 This case challenges the City of San Diego’s ticketing and impoundment of vehicles 28 used by homeless individuals as shelter. At the time of the filing of the First Amended 1 Complaint, the City had been issuing citations under two City ordinances: (1) its ordinance 2 prohibiting RV parking from 2:00 a.m. to 6:00 a.m., San Diego Muni. Code § 86.0139(a) 3 (“the nighttime RV parking ordinance”); and (2) its ordinance prohibiting vehicle 4 habitation, San Diego Muni. Code § 86.0137(f) (“the Original VHO”). (First Amended 5 Complaint (“FAC”), Doc. No. 14, ¶ 50, 52.) Plaintiffs alleged both ordinances violated the 6 constitutional and statutory rights of San Diego residents with no other shelter options 7 besides their vehicles, including persons with disabilities who, due to their disabilities, are 8 unable to access housing. (Id. ¶ 64, 129.) 9 On August 26, 2018, Plaintiffs filed a motion for preliminary injunction to enjoin 10 enforcement of both ordinances. (Doc. No. 26.) On August 21, 2018, the Court enjoined 11 enforcement of the Original VHO, but denied Plaintiffs’ motion for preliminary injunction 12 as to “the nighttime RV parking ordinance.” (Doc. No. 44.) As a result of the preliminary 13 injunction, the San Diego City Council repealed the Original VHO on February 25, 2019. 14 Then, on May 14, 2019, the San Diego City Council enacted a new vehicle habitation 15 ordinance (“the New VHO”)—which is not a part of the current lawsuit—in response to 16 concerns about the public health and safety effects of the repeal. (Doc. No. 103.) The New 17 VHO prohibits San Diego residents from parking their vehicles for habitation anywhere in 18 the City between the hours of 9:00 p.m. and 6:00 a.m. except at a handful of designated 19 lots, and from parking within 500 feet of any residence or school at any time. See San 20 Diego Muni. Code § 86.0137(f). Violations of the New VHO may be charged as infractions 21 or misdemeanors. If charged as a misdemeanor, violations carry a sentence of up to six 22 months in jail and a $1,000 fine. See San Diego Muni. Code § 12.0201. 23 Plaintiffs alleges like they had before, that the New VHO is unconstitutionally vague 24 and targets Plaintiffs and putative class members who reside in their vehicles due to having 25 no other viable shelter options that meet their needs. (Doc. No. 93-1 at 6.) Plaintiffs seek 26 to amend their complaint, to assert new claims of relief as to the New VHO. 27 II. PROCEDURAL HISTORY 28 Plaintiffs initiated this action challenging the City’s ticketing and impoundment of 1 vehicles used by homeless individuals on November 15, 2017. (Doc. No. 1.) Plaintiffs 2 amended the original Complaint on February 14, 2018. (Doc. No. 14.) On June 8, 2018, 3 the Court denied the City’s motion to dismiss Plaintiffs’ Americans with Disabilities Act 4 and Rehabilitation Act claims. (Doc. No. 36.) On August 21, 2018, the Court granted in 5 part and denied in part Plaintiffs’ motion for preliminary injunction and enjoined the City 6 from ticketing any vehicle or impounding any vehicle on the basis of violating the Original 7 VHO. (Doc. No. 44.) On February 5, 2019, the San Diego City Council, in response to the 8 preliminary injunction, voted unanimously to repeal the Original VHO. (Doc. No. 93-1 at 9 8.) However, the City enacted the New VHO on May 14, 2019, which amends San Diego 10 Muni. Code § 86.0137(f) to restrict living in vehicles. (Id.) 11 On November 18, 2019, Plaintiffs filed the instant motion for leave to file a SAC. 12 (Doc. No. 93.) On December 17, 2019, the City opposed, and on December 24, 2019, 13 Plaintiffs replied. (Doc. Nos. 103, 107.) The deadline for class discovery was December 14 22, 2019, and Plaintiffs’ motion for class certification, filed January 21, 2020, is currently 15 pending before the Court. (Doc. Nos. 92, 109.) This order follows. 16 III. LEGAL STANDARD 17 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the 18 party’s pleading once as a matter of course at any time before a responsive pleading is 19 served. See Fed. R. Civ. P. 15(a)(1). Otherwise, a party may amend only by leave of the 20 court or by written consent of the adverse party, and leave shall be freely given when justice 21 so requires. See Fed. R. Civ. P. 15(a)(2). The Court is to apply this policy of granting leave 22 with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 23 (9th Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th 24 Cir. 2001)). 25 In determining whether to grant leave to amend, the court considers five factors: “(1) 26 bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; 27 and (5) whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 28 375 F.3d 805, 808 (9th Cir. 2004). The factors are not given equal weight and futility alone 1 is sufficient to justify the denial of a motion to amend. Washington v. Lowe’s HIW Inc., 75 2 F. Supp. 3d 1240, 1245 (N.D. Cal. 2014). “[I]t is the consideration of prejudice to the 3 opposing party that carries the greatest weight.” Eminence Capital, LLC, 316 F.3d at 1052. 4 “Absent prejudice, or a strong showing of any of the remaining [ ] factors, there exists a 5 presumption under Rule 15(a) in favor of granting leave to amend.” Id. 6 IV. DISCUSSION 7 Plaintiffs propose amending their complaint to address the impact of the New VHO 8 on the same class and subclass of individuals impacted by the Original VHO and the 9 nighttime RV parking ordinance. (Doc. No. 93-1 at 10.) The proposed amendments seek 10 to add factual allegations to existing claims for relief to address the New VHO, in addition 11 to entirely new causes of action. As addressed below, the Court concludes that leave to 12 amend is appropriate. 13 A. Bad Faith, Undue Delay, and Previous Amendments 14 First, although Plaintiffs have had a previous opportunity to amend, the Court finds 15 no bad faith or undue delay in Plaintiffs’ request. Plaintiffs could not have anticipated the 16 need to amend their complaint to address the New VHO at the time they filed the existing 17 operative complaint. The New VHO did not exist at that time and was enacted in response 18 to the Court’s preliminary injunction enjoining the enforcement of the Original VHO. See 19 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987) (“[D]elay alone is not 20 sufficient to justify the denial of a motion requesting leave to amend.”). 21 B. Prejudice 22 Second, the City has not met its burden of demonstrating prejudice. “The party 23 opposing amendment bears the burden of showing prejudice.” DCD Programs, 833 F.2d 24 at 187. “Absent prejudice, or a strong showing of any of the remaining [Rule 15] factors, 25 there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence 26 Capital, LLC, 316 F.3d at 1052 (emphasis in original). 27 Here, the proposed SAC presents no surprises factually or legally, and does not add 28 significant evidentiary burdens. The City enacted the New VHO in response to the Court’s 1 order enjoining enforcement of the Original VHO and therefore, the City knew that the 2 New VHO could potentially impact the same group of Plaintiffs and putative class 3 members impacted by the Original VHO. (Doc. No. 93-1 at 12.) Additionally, Plaintiffs 4 point out that any evidentiary burden will be minimal because the City officials and 5 departments involved with the New VHO largely overlap with those of the other ordinances 6 at issue. (Id. at 13.) The ordinance was also recently enacted, so any discovery would not 7 be unreasonably voluminous. (Id.) Thus, this factor weighs in favor of permitting 8 amendment. 9 C. Futility 10 Lastly, allowing amendment to add new claims, and new factual allegations to 11 existing claims would not be futile. “While some courts liken the futility inquiry with that 12 of a motion to dismiss,” most recognize that denial of leave to amend on futility grounds 13 is rare. Defazio v. Hollister, Inc., No. Civ. 04–1358, 2008 WL 2825045, at *2 (E.D. Cal. 14 July 21, 2008) (quoting Netbula v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003)). 15 Ordinarily, courts will defer consideration of “challenges to the merits of a proposed 16 amended pleading until after leave to amend is granted and the amended pleading is filed.” 17 Utterkar v. Ebix, Inc., No. 14-CV-02250-LHK, 2015 WL 5027986, at *3 (N.D. Cal. Aug. 18 25, 2015) (citing Netbula, LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003)). 19 First, many of Plaintiffs’ proposed amendments relate to existing claims for relief, 20 but only add new factual allegations relevant to the New VHO. (Doc. No. 93-1 at 14–16.) 21 Plaintiffs points out the proposed factual allegations are similar to the to the prior claims 22 regarding the Original VHO, which either have survived a motion to dismiss or which the 23 Court has already determined provides an adequate basis to issue a preliminary injunction. 24 (Id.) While it cannot be determined at this time whether the New VHO will meet a similar 25 fate, there is certainly support that these amendments would not be futile. 26 In opposition, the City argues that Plaintiffs’ proposed amendments are not ripe for 27 judicial review because “none of the Named Plaintiffs have been cited under the New 28 VHO” and Plaintiffs only seek to amend their complaint to challenge to how the New VHO 1 will “likely be enforced.” (Doc. No. 103 at 11–12.) However, Plaintiffs allege that this is 2 incorrect, and certain Named Plaintiffs have indeed experienced warnings and citations as 3 a result of the New VHO. (Doc. No. 107 at 6–7.) Furthermore, the City’s own documents 4 indicate that the issue is ripe. Based on the City’s documents, the San Diego Police 5 Department has made 802 contacts under the New VHO, issued 675 warnings, issued 111 6 citations, and made 16 arrests. (See Flores Declaration, Doc. No. 103-14, Exhibit A.) 7 In addition to adding new factual allegations to existing causes of action, Plaintiffs 8 also seek to add entirely new claims for violations of: (1) the Fourth Amendment and the 9 California Constitution’s right to be secure from unreasonable seizures, (2) the Fourteenth 10 Amendment’s right to procedural due process, (3) the Eighth and Fourteenth Amendments’ 11 rights to be free from excessive fines, and (4) the First and Fourteenth Amendments’ right 12 to association. (Doc. No. 93-1 at 16–17.) 13 The City asserts that Plaintiffs’ proposal to add Fourth Amendment claims is futile 14 because Plaintiffs will not be able to prove causation. But the Court will defer consideration 15 of this “challenge[] to the merits” until after “the amended pleading is filed.” Utterkar, 16 2015 WL 5027986, at *3. At this juncture, there is not enough for the Court to conclude 17 that the amendment would be futile. The City additionally argues Plaintiffs’ allegations 18 regarding the Fourth Amendment are “new theories of recovery based on old facts, with 19 no explanation of why Plaintiffs failed to raise these causes of action two years ago when 20 the lawsuit was initiated.” (Doc. No. 103 at 14–15.) To this point, the Court agrees, and 21 Plaintiffs are reminded that leave to amend to add allegations relevant to the New VHO is 22 not an invitation for Plaintiffs to bootstrap new allegations to claims that are only relevant 23 to the Original VHO. The door has closed on Plaintiffs’ opportunity to develop their theory 24 of the case as to the Original VHO. See Stein v. United Artists Corp., 691 F.2d 885, 898 25 (9th Cir. 1982) (denying leave to amend where “amended complaint was brought only to 26 assert new theories, if anything, and was not premised upon new facts.”). 27 V. CONCLUSION 28 In sum, the Court does not find any indicia of bad faith, undue delay, prejudice, or 1 futility that would warrant denying Plaintiffs’ request. Thus, the Court GRANTS 2 || Plaintiffs’ motion for leave to file their SAC. Plaintiffs will have until May 1, 2020 to file 3 ||their amended complaint consistent with this Court’s order. The Court additionally 4 ||VACATES the hearing on Plaintiffs’ motion for class certification and DENIES 5 || WITHOUT PREJUDICE AS MOOT Plaintiffs’ motion for class certification. Plaintiffs 6 renew their motion for class certification after an opportunity for discovery on the 7 VHO. 8 9 IT IS SO ORDERED. 10 Dated: April 22, 2020 © ¢ 1] Hon. Anthony J. attaglia 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28