1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KAHILA H. HEDAYATZADEH, Case No.: 19-cv-842-BEN (BLM)
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR LEAVE TO ADD ADDITIONAL CLASS PLAINTIFF 14 CITY OF DEL MAR,
15 Defendant. [ECF No. 30] 16 17 This matter comes before the Court on Plaintiff Kahlia H. Hedayatzadeh’s 18 (“Plaintiff”) Motion Requesting Leave of Court to Amend the Class Action Complaint 19 and Add an Additional Lead Plaintiff. ECF No. 30. For the reasons set forth below the 20 motion is DENIED. 21 I. BACKGROUND 22 Plaintiff alleges Defendant City of Del Mar, California, violated her Fourth 23 Amendment rights by applying chalk marks on the tire of her vehicle to enforcing 24 parking space time limits. Compl., ECF No. 1, ¶ 24. Plaintiff alleged that between May 25 3, 2017, and May 3, 2019, she received “at least one or two parking tickets” for 26 exceeding the time limit on parking spots imposed in the City of Del Mar. Pl.’s Decl., 27 ECF. No. 19-4, ¶ 2-3. She further alleged Defendant regularly and systematically uses a 28 process of “chalking,” which consists of applying a small chalk mark to a car tire, to 1 determine whether a car has over-stayed the parking spot time limit. Compl., ECF No. 1, 2 ¶ 22-23. Plaintiff alleged Defendant chalks vehicles without consent, purportedly 3 violating the Fourth Amendment’s prohibition on unreasonable searches and seizures. Id. 4 at ¶ 24. Defendant admits it uses chalking to enforce parking regulations but denies that 5 chalking violates the Fourth Amendment. Opp’n., ECF No. 20, at 2. 6 While Plaintiff alleged she received “at least one or two” parking tickets, she has 7 “not yet been able to locate any copies of these tickets.” Pl.’s Decl., ECF No. 19-4, ¶ 3. 8 To this end, substantial discovery has already occurred. Opp’n, ECF No. 20, 2. 9 Defendant has located and produced records for thousands of individuals cited during the 10 applicable time frame. Id. Defendant has likewise searched for and produced 11 corresponding payment records for those thousands of citations. Id. Despite this 12 substantial effort, there is no record Defendant ever issued a ticket to Plaintiff, and no 13 record Plaintiff ever paid a parking ticket to Defendant. 14 Nonetheless, Plaintiff sought to certify a class of at least 5,500 people who have 15 had their tires chalked and a subclass of at least 4,000 people who have allegedly paid 16 parking tickets. Mot., ECF No. 19, 6-13. On July 23, 2020, the Court denied her motion 17 for class certification. Order, ECF No. 23. The Court found that she did not meet the 18 typicality requirement of Federal Rule of Civil Procedure 23(a) such that she would be a 19 proper representative party because her standing in this case was so tenuous that it 20 threatened to become the focal point of the litigation. Id. at 7. Based only on her 21 pleadings, the Court agreed Plaintiff had alleged standing, but it also expressed serious 22 doubt that Plaintiff would be able to prove her standing at later stages of litigation when 23 the Court looked beyond the pleadings for evidence supporting her injury in fact. Id. 24 Enter Kaveh Hedayatzadeh, Plaintiff’s brother, who – only one month after the 25 Court’s order denying class certification – happened to receive a parking ticket from 26 Defendant, allegedly based on Defendant’s use of chalking on his car tire. Mot., ECF 27 No. 30, 2. Kaveh Hedayatzadeh has a copy of his citation, which he allegedly paid. 28 Khashayar Decl., ECF No. 30-1, Ex. A. Plaintiff asks the Court to grant her leave to 1 amend her Complaint, adding her brother as an additional representative plaintiff. Id. 2 Defendant opposes, arguing (1) Plaintiff’s lack of standing bars amendment, and (2) the 3 factors set forth in Foman v. Davis, 371 U.S. 178 (1962), weigh against granting leave to 4 amend. 5 II. LEGAL STANDARD 6 Once a defendant has answered, a plaintiff may only amend the complaint by leave 7 of court, or with the written consent of the adverse party. Fed. R. Civ. P. 15(a). Pursuant 8 to Federal Rule of Civil Procedure 15(a)(2), leave to amend should be “freely given when 9 justice so requires.” Foman, 371 U.S. at 182. “The power to grant leave to amend, 10 however, is entrusted to the discretion of the district court, which determines the 11 propriety of a motion to amend by ascertaining the presence of any of four factors: bad 12 faith, undue delay, prejudice to the opposing party, and/or futility.” Serra v. Lappin, 600 13 F.3d 1191, 1200 (9th Cir. 2010) (quotation marks and citation omitted). Generally, 14 amendments adding claims are granted more freely than amendments adding parties. 15 Union Pacific R.R. Co. v. Nevada Power Co., 950 F.2d 1429, 1432 (9th Cir. 1991). 16 III. ANALYSIS 17 Plaintiff argues amendment is appropriate here because her brother, Kaveh 18 Hedayatzadeh, actually has a record of his parking citation, alleviating the “typicality” 19 issues that plagued Plaintiff’s Motion for Class Certification. Mot., ECF No. 30, 6. She 20 further argues her Motion to Amend (1) is made in good faith, (2) is timely following the 21 Court’s ruling on her Motion for Class Certification, (3) does not unduly prejudice 22 Defendant, and (4) would not be futile. Id. at 6-9. Defendant opposes, arguing that 23 Plaintiff’s “lack of standing bars amendment,” and that the four Foman factors described 24 above counsel against granting leave to amend. Opp’n, ECF No. 31, 4-11. 25 A. Amendment cannot be made to cure lack of standing 26 Plaintiff’s “typicality” argument is a guise that acknowledges her standing issues, 27 and the Court has dealt with such matters before. See Evenchik v. Avis Rent A Car Sys., 28 LLC, No. 12-cv-0061-BEN-DHB, 2013 WL 2301224 (S.D. Cal. May 24, 2013) (denying 1 leave to amend that sought to ward off a potential challenge to the named plaintiff’s 2 standing by adding another plaintiff). 3 Here, as in Evenchik, Plaintiff seeks to amend her Complaint “to correct the 4 shortcoming identified by adding an additional Plaintiff.” Mot., ECF No. 30, 2. As in 5 Evenchik, the “shortcoming identified” is the named Plaintiff’s standing. 2013 WL 6 2301224, at *1. The reasoning set forth in that case applies equally here: 7 The Court is mindful of the liberality of Rule 15(a), yet it does not extend to cases where Plaintiff’s only reason for seeking 8 amendment is to cure a standing defect. If Plaintiff Evenchik is 9 without standing, then amendment would not be allowed, as a plaintiff “may not create jurisdiction by amendment when none 10 exists.” Lans v. Gateway 2000, Inc., 84 F. Supp. 2d 112, 115 11 (D.D.C. 1999) aff'd, 252 F.3d 1320 (Fed. Cir. 2001) (citations and internal quotations omitted); see also Almeida v. Google, 12 Inc., No. C–08–02088 RMW, 2009 WL 3809808, at *2 (N.D. 13 Cal. Nov. 13, 2009) (“[W]here the original named plaintiff lacks standing, a new plaintiff with standing cannot step in to save the 14 lawsuit from dismissal.”); In re Flash Memory Antitrust Litig., 15 No. C 07–0086 SBA, 2010 U.S. Dist. LEXIS 66466, at *29–30 (N.D. Cal. Jun. 10, 2010) (a party with no standing to maintain 16 an action has no standing to amend). Plaintiff contends that the 17 amendment should be allowed because she has not admitted that she lacks standing and no court has determined that she lacks 18 standing. If the amendment were for another purpose, the Court 19 might agree.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KAHILA H. HEDAYATZADEH, Case No.: 19-cv-842-BEN (BLM)
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR LEAVE TO ADD ADDITIONAL CLASS PLAINTIFF 14 CITY OF DEL MAR,
15 Defendant. [ECF No. 30] 16 17 This matter comes before the Court on Plaintiff Kahlia H. Hedayatzadeh’s 18 (“Plaintiff”) Motion Requesting Leave of Court to Amend the Class Action Complaint 19 and Add an Additional Lead Plaintiff. ECF No. 30. For the reasons set forth below the 20 motion is DENIED. 21 I. BACKGROUND 22 Plaintiff alleges Defendant City of Del Mar, California, violated her Fourth 23 Amendment rights by applying chalk marks on the tire of her vehicle to enforcing 24 parking space time limits. Compl., ECF No. 1, ¶ 24. Plaintiff alleged that between May 25 3, 2017, and May 3, 2019, she received “at least one or two parking tickets” for 26 exceeding the time limit on parking spots imposed in the City of Del Mar. Pl.’s Decl., 27 ECF. No. 19-4, ¶ 2-3. She further alleged Defendant regularly and systematically uses a 28 process of “chalking,” which consists of applying a small chalk mark to a car tire, to 1 determine whether a car has over-stayed the parking spot time limit. Compl., ECF No. 1, 2 ¶ 22-23. Plaintiff alleged Defendant chalks vehicles without consent, purportedly 3 violating the Fourth Amendment’s prohibition on unreasonable searches and seizures. Id. 4 at ¶ 24. Defendant admits it uses chalking to enforce parking regulations but denies that 5 chalking violates the Fourth Amendment. Opp’n., ECF No. 20, at 2. 6 While Plaintiff alleged she received “at least one or two” parking tickets, she has 7 “not yet been able to locate any copies of these tickets.” Pl.’s Decl., ECF No. 19-4, ¶ 3. 8 To this end, substantial discovery has already occurred. Opp’n, ECF No. 20, 2. 9 Defendant has located and produced records for thousands of individuals cited during the 10 applicable time frame. Id. Defendant has likewise searched for and produced 11 corresponding payment records for those thousands of citations. Id. Despite this 12 substantial effort, there is no record Defendant ever issued a ticket to Plaintiff, and no 13 record Plaintiff ever paid a parking ticket to Defendant. 14 Nonetheless, Plaintiff sought to certify a class of at least 5,500 people who have 15 had their tires chalked and a subclass of at least 4,000 people who have allegedly paid 16 parking tickets. Mot., ECF No. 19, 6-13. On July 23, 2020, the Court denied her motion 17 for class certification. Order, ECF No. 23. The Court found that she did not meet the 18 typicality requirement of Federal Rule of Civil Procedure 23(a) such that she would be a 19 proper representative party because her standing in this case was so tenuous that it 20 threatened to become the focal point of the litigation. Id. at 7. Based only on her 21 pleadings, the Court agreed Plaintiff had alleged standing, but it also expressed serious 22 doubt that Plaintiff would be able to prove her standing at later stages of litigation when 23 the Court looked beyond the pleadings for evidence supporting her injury in fact. Id. 24 Enter Kaveh Hedayatzadeh, Plaintiff’s brother, who – only one month after the 25 Court’s order denying class certification – happened to receive a parking ticket from 26 Defendant, allegedly based on Defendant’s use of chalking on his car tire. Mot., ECF 27 No. 30, 2. Kaveh Hedayatzadeh has a copy of his citation, which he allegedly paid. 28 Khashayar Decl., ECF No. 30-1, Ex. A. Plaintiff asks the Court to grant her leave to 1 amend her Complaint, adding her brother as an additional representative plaintiff. Id. 2 Defendant opposes, arguing (1) Plaintiff’s lack of standing bars amendment, and (2) the 3 factors set forth in Foman v. Davis, 371 U.S. 178 (1962), weigh against granting leave to 4 amend. 5 II. LEGAL STANDARD 6 Once a defendant has answered, a plaintiff may only amend the complaint by leave 7 of court, or with the written consent of the adverse party. Fed. R. Civ. P. 15(a). Pursuant 8 to Federal Rule of Civil Procedure 15(a)(2), leave to amend should be “freely given when 9 justice so requires.” Foman, 371 U.S. at 182. “The power to grant leave to amend, 10 however, is entrusted to the discretion of the district court, which determines the 11 propriety of a motion to amend by ascertaining the presence of any of four factors: bad 12 faith, undue delay, prejudice to the opposing party, and/or futility.” Serra v. Lappin, 600 13 F.3d 1191, 1200 (9th Cir. 2010) (quotation marks and citation omitted). Generally, 14 amendments adding claims are granted more freely than amendments adding parties. 15 Union Pacific R.R. Co. v. Nevada Power Co., 950 F.2d 1429, 1432 (9th Cir. 1991). 16 III. ANALYSIS 17 Plaintiff argues amendment is appropriate here because her brother, Kaveh 18 Hedayatzadeh, actually has a record of his parking citation, alleviating the “typicality” 19 issues that plagued Plaintiff’s Motion for Class Certification. Mot., ECF No. 30, 6. She 20 further argues her Motion to Amend (1) is made in good faith, (2) is timely following the 21 Court’s ruling on her Motion for Class Certification, (3) does not unduly prejudice 22 Defendant, and (4) would not be futile. Id. at 6-9. Defendant opposes, arguing that 23 Plaintiff’s “lack of standing bars amendment,” and that the four Foman factors described 24 above counsel against granting leave to amend. Opp’n, ECF No. 31, 4-11. 25 A. Amendment cannot be made to cure lack of standing 26 Plaintiff’s “typicality” argument is a guise that acknowledges her standing issues, 27 and the Court has dealt with such matters before. See Evenchik v. Avis Rent A Car Sys., 28 LLC, No. 12-cv-0061-BEN-DHB, 2013 WL 2301224 (S.D. Cal. May 24, 2013) (denying 1 leave to amend that sought to ward off a potential challenge to the named plaintiff’s 2 standing by adding another plaintiff). 3 Here, as in Evenchik, Plaintiff seeks to amend her Complaint “to correct the 4 shortcoming identified by adding an additional Plaintiff.” Mot., ECF No. 30, 2. As in 5 Evenchik, the “shortcoming identified” is the named Plaintiff’s standing. 2013 WL 6 2301224, at *1. The reasoning set forth in that case applies equally here: 7 The Court is mindful of the liberality of Rule 15(a), yet it does not extend to cases where Plaintiff’s only reason for seeking 8 amendment is to cure a standing defect. If Plaintiff Evenchik is 9 without standing, then amendment would not be allowed, as a plaintiff “may not create jurisdiction by amendment when none 10 exists.” Lans v. Gateway 2000, Inc., 84 F. Supp. 2d 112, 115 11 (D.D.C. 1999) aff'd, 252 F.3d 1320 (Fed. Cir. 2001) (citations and internal quotations omitted); see also Almeida v. Google, 12 Inc., No. C–08–02088 RMW, 2009 WL 3809808, at *2 (N.D. 13 Cal. Nov. 13, 2009) (“[W]here the original named plaintiff lacks standing, a new plaintiff with standing cannot step in to save the 14 lawsuit from dismissal.”); In re Flash Memory Antitrust Litig., 15 No. C 07–0086 SBA, 2010 U.S. Dist. LEXIS 66466, at *29–30 (N.D. Cal. Jun. 10, 2010) (a party with no standing to maintain 16 an action has no standing to amend). Plaintiff contends that the 17 amendment should be allowed because she has not admitted that she lacks standing and no court has determined that she lacks 18 standing. If the amendment were for another purpose, the Court 19 might agree. Here, though, Plaintiff’s only reason for seeking amendment is to rectify a potential standing defect. If Plaintiff 20 has standing, as Plaintiff maintains, her justification disappears. 21 If she does not, then no amendment is permissible because a plaintiff may not retroactively create jurisdiction. Under the 22 circumstances, the Court is not persuaded that amendment would 23 be proper. Plaintiff's motion is denied.
24 Id. at *2. Because Plaintiff’s Motion for Leave to Amend is made solely to rectify a 25 potential standing defect and amendment may not be used to retroactively create 26 jurisdiction, the Motion is denied. 27
28 1 B. The Foman factors also disfavor amendment here 2 Even if the Court considered the Foman factors, the result would be the same 3 because the proposed amendment comes after unreasonable delay and would cause undue 4 prejudice to Defendant. See 371 U.S. at 182. 5 1. Unreasonable Delay 6 Defendant first argues that unreasonable delay disfavors amendment. Opp’n, ECF 7 No. 31, 7-8. Plaintiff argues her Motion closely follows the Court’s denial of her Motion 8 for Class Certification, and therefore, there is no undue delay. Mot., ECF No. 30, 7. 9 “Relevant to evaluating the delay issue is whether the moving party knew or 10 should have known the facts and theories raised by the amendment in the original 11 pleading.” Jackson, 902 F.2d at 1388. Though outside the class action context, the Ninth 12 Circuit has “held that an eight-month delay between the time of obtaining a relevant fact 13 and seeking a leave to amend is unreasonable.” AmerisourceBergen Corp. v. Dialysist 14 West, Inc., 465 F.3d 946, 953 (9th Cir. 2006). Moreover, “courts have denied 15 amendment or intervention where the movant is simply seeking another chance at 16 certification.” Ho v. Ernst & Young LLP, Case No. C-05-04867 RMW, 2012 WL 95342, 17 at *3 (N.D. Cal. Jan. 11, 2012) (citing Randall v. Rolls-Royce Corp., 637 F.3d 818, 827 18 (7th Cir. 2011) (“Intervention shouldn’t be allowed just to give class action lawyers 19 multiple bites at the certification apple, when they have chosen, as should have been 20 obvious from the start, patently inappropriate candidates to be the class 21 representatives.”)). 22 Defendant argues that Plaintiff’s standing issues were known as early as July 2019, 23 when Defendant filed its answer citing standing as an affirmative defense. Opp’n, ECF 24 No. 30, 8. By July 31, 2019, Defendant had searched its records and produced “a list of 25 all citations issued to individuals with the last name Hedayatzadeh.” Id. That search 26 revealed only one citation, which was given to Kaveh Hedayatzadeh in 2004 and would 27 be barred by the applicable statute of limitations. Id. at 8-9. Despite these early warning 28 signs about Plaintiff’s tenuous standing, Plaintiff pressed forward with her Motion for 1 Class Certification on February 27, 2020. ECF No. 19. In that filing, Plaintiff reaffirmed 2 that she had still been unable to locate any record of receiving a chalking citation from 3 Defendant. Pl.’s Decl., ECF. No. 19-4, at ¶ 2-3. The Court finds that the early and 4 extensive discovery conducted by Defendant in July 2019 put Plaintiff on notice of her 5 standing issues, which she chose not to address for over one year while awaiting the 6 Court’s action on her Motion for Class Certification. To be sure, nothing prevented 7 Plaintiff from seeking amendment prior to that date. Instead, this appears to be merely an 8 attempt to get “multiple bites at the certification apple.” Randall, 637 F.3d at 827. 9 Accordingly, Plaintiff’s delay in filing her Motion for Leave to Amend is 10 unreasonable here. 11 2. Undue Prejudice 12 Defendant also argues that granting the Motion would cause it undue prejudice. 13 Opp’n, ECF No. 31, 9-10. In support, Defendant argues it has conducted extensive fact 14 discovery related to Plaintiff’s claims, and that adding Kaveh Hedayatzadeh “would 15 result in [Defendant] having to respond to the amended complaint, assess the adequacy of 16 his claims and any applicable affirmative defenses, and potentially file a dispositive 17 motion with respect to his claims.” Id. at 10. Plaintiff 18 “The question of prejudice is closely linked with analysis on undue delay; 19 prejudice is generally found where the amendment would cause substantial delay in the 20 proceedings.” Bookhamer v. Sunbeam Products, Inc., Case No. C-09-6027-EMC, 2012 21 WL 6652414, at *5 (N.D. Cal. Dec. 20, 2012). The Ninth Circuit has held that of the 22 four Foman factors, “it is the consideration of prejudice to the opposing party that carries 23 the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th 24 Cir. 2003). Undue prejudice may accrue where the defendant shows granting a motion to 25 amend “would effectively moot the Plaintiff-specific work Defendants have done.” Hitt 26 v. Arizona Beverage Co., LLC, Case No. 08-cv-809-WQH, 2009 WL 4261192, at *6 27 (Nov. 24, 2009). 28 As discussed above, the Court finds Plaintiff acted with unreasonable delay in 1 || filing her Motion. See, supra, § I11(B)(1). This delay occurred after Defendant located 2 produced “the names of thousands of individuals who received such citations within 3 || the applicable time frame.” Opp’n to Class Cert., ECF No. 20, 2. Defendant also 4 ||searched for and produced corresponding payment records for that applicable period. Jd. 5 || Fact discovery is likewise nearing completion. Scheduling Order, ECF No. 29. By 6 || adding Kaveh Hedayatzadeh, the proposed substitution would amount to a new lawsuit 7 voluminous new discovery based on a citation allegedly issued more than fifteen 8 ||months after the Complaint was filed. Mot., ECF No. 30, 2. See also Gonzalez v. The 9 || Proctor & Gamble Co., Case No. 06-cv-869-H, 2006 WL 8455612, at *2 (Aug. 31, 2006) 10 || (denying motion to amend to substitute plaintiff where the proposed intervenor purchased 11 || allegedly deficient products two years after the original plaintiff and noting that the 12 || proposed intervenor was free to file her own suit). It would also “effectively moot the 13 || Plaintiff-specific work Defendants have done.” Hitt, 2009 WL 4261192, at *6. Finally, 14 |}amendment would needlessly consume Defendant’s resources on procedural issues of 15 || recertification while avoiding the merits of Plaintiff's claims. See Foman, 371 U.S. at 16 || 182 (“If the underlying facts or circumstances relied upon by a plaintiff may be a proper 17 || subject of relief, he ought to be afforded an opportunity to test his claim on the merits.”). 18 || Accordingly, the Court finds Defendant would suffer undue prejudice from amendment. 19 ||IV. CONCLUSION 20 For the foregoing reasons, the Motion is DENIED. Plaintiff may pursue her claim 21 an individual basis and the proposed intervenor may file his own lawsuit should he so 22 || choose. 23 IT IS SO ORDERED.
25 ||Dated: December 29, 2020 on. Roger T. Benitez 26 United States District Judge 27 28