IN THE SUPERIOR COURT OF GUAM 2
3 JON B. McDONALD, ALMAS. ) Civil Case no. CV0223·1 0 4 McDONALD, ESTATE OF DOMINGO BAE ) GUERRERO, by and through its duly ) 5 appointed administrator JOAQUIN G. ) MUNOZ, ESTATE OF JOSE C PEREDO by DECISION AND ORDER 6 and through its appointed Co-administrators )) re: Motion for Class Certification FRANK STEVEN N. PEREDO and JOSE G. 7 PEREDO, individually and on behalf of a class) of others similarly situated, ) 8 ) ) Plaintiffs, 9 ) 10 vs. ) ) II GOVERNMENT OF GUAM, EDDIE BAZA ) CALVO, GOVERNOR OF GUAM, and DOES 1-25, ) 12 ) 13 Defendant. 14 INTRODUCTION 15 This matter came before the Honorable Judge Michael J. Bordallo on January 15, 2013. 16
17 Plaintiffs were represented by Attorney Peter C. Perez. Defendant was represented by Assistant
18 Attorney General Kathy A Fokas. After considering the matters presented, the Court now 19 issues the following decision and order DENYING Plaintiffs motion for class certification. 20 BACKGROUND 21 The instant action stems from an inverse condemnation by the Plaintiffs on their own 22 behalf and on the behalf of a class of persons similarly situated. Between August 1, 1950 and 23 July 1, 1994, the Government of Guam expropriated private lands, including those owned by 24 Plaintiffs, for public purposes without providing just compensation to the land owners. 25 On or about November 1992, the Office of the Inspector General of the U.S. 26 Department of the Interior issued an Audit Report making eight (8) recommendations to the 27 Government of Guam instructing the Department of Public Works ("DPW") to develop a 28 policy concerning land taken previously for public roads and various programs identifying
Page I ofl6 which lands are needed and not needed for future road projects. These recommendations 2 remain undone. 3 On or about February 23, 1994, the Guam Legislature passed Public Law 22-73, An Act 4 to Require the Government of Guam to Properly Compensate Landowners whose Property has 5 been taken for Public Use and to Make an Appropriation to the Governor's Office in 6 Connection Therewith. The Legislative intent of Public Law 22-73 is stated in Section 1. It 7 provides: 8 "Section 1. Legislative intent. It has long been the practice of the practice of the Government of Guam to exchange private property of individuals for government 9 land of equal value when the government needed the private land for public use. 10 This practice has generally been fair and equitable. However, since 1945, it has also been the practice of the government to take private property without any II compensation or compensatory exchange when that land has been needed for such purposes ... benefiting the public at large. This practice must cease immediately I2 because it is contrary to the principles of eminent domain, justice, and I3 constitutional guarantees of property rights"
14 Pursuant to Public Law 22-73, Section 2, the Governor and the Government of Guam I5 are required to do the following: I6 "Section 2. Research on property taken. The Governor shall immediately 17 research and compile an exhaustive list of all private property which has been taken by the various agencies and departments of the government of Guam since I8 1945 and for which either no compensation or grossly inadequate compensation I9 has been given, either in terms of money or by land exchange. The Governor may utilize all departments and agencies of the executive branch to expedite 20 completion of this task. Land agencies of the executive branch are to expedite 2I completion of this task. Land so taken shall include but not be limited to eminent domain, to condemnation, to outright taking, to all government easements (for any 22 condemnation, to outright taking, to all government easements (for any reason), and to all similar means of taking. The report shall include the legal name of the 23 property owner, the location of the land, any compensation offered (and whether 24 or not accepted), the amount of land taken, the date taken, the current value of the land take, and all other pertinent information needed to ensure that justice is done 25 for all.. .. A copy of this report shall be transmitted to the Speaker of the Legislature no later than one hundred twenty (120) calendar days after enactment 26 of this Act. If additional time is required to complete the report, a request 27 justifying such an extension shall be made in writing to the Speaker."
28 The Defendants have failed to comply with the mandatory requirements of Public Law 22-73.
Page 2 of 16 On or about December 1 1996, the Guam Legislature passed Public Law 23-128. 2 Section 32 of Public Law 23-128 amended Public Law 22-73. Section 9 is now codified as 7 3 G.C.A. § 11311.1. It authorized Plaintiffs to institute this action and states: 4 Inverse Condemnation. Any person whose land was expropriated for public 5 purposes by the government of Guam between August 1, 1950, and July 1, I 994, 6 and who has not been compensated by the government of Guam for such taking may institute an action for inverse condemnation. In any taking by the 7 government of Guam after July I, 1994, in which the government fails to follow the eminent domain provisions of Title 21, Guam Code Annotated, the person 8 whose land is taken shall have four (4) years from the time of such taking to 9 institute an action for inverse condemnation. An action shall lie for the taking of a person's fee or for lesser compensable interest in the property which has been IO expropriated by the government of Guam without according the person due II process. In any action for inverse condemnation in which an award is made to a person for a taking, the court shall also award reasonable attorney's fees and I2 costs. 13 7 G.C.A. § 11311.1 I4 Plaintiffs Jon B. Mcdonald and Alma S. Mcdonald are the fee simple owners of the I5 property described as Lot 23 74-2-1, Municipality of Barrigada, Guam.' Plaintiff Guerrero 16
I 7 Estate is the fee simple owner of the property described as Lot No. 136-G, Mongmong-Toto-
I8 Maite, formerly Sinajana, Guam? Plaintiff Pereda Estate is the fee simple owner of the I9
2I
22 1 During the period including and within August 1, 1950 and July 1, 1994, the Government of 23 Guam expropriated from Jon B. Mcdonald and Alma S. Mcdonald and their predecessors in interests in said private property approximately 753 square meters of land, by encroaching upon 24 said property for the construction of the Toto-Canada Road, for a public purpose without 25 payment to them of just compensation.
26 2 During the period including and within August 1, 1950 and July 1, 1994, the government of 27 Guam expropriated from the Guerrero Estate and its predecessors in interest in said private property, approximately 1,728.1 square meters ofland, by encroaching upon said private 28 property for the construction of the Toto-Canada Road, for a public purpose, without payment to it of just compensation. Page 3 of 16 property described as Lot No. 160-4, Mongmong-Toto-Maite, formerly known as Sinajana, 2
3 Plaintiffs assert they are each entitled to seek from the Defendants the recovery of just 4 compensation, interest, reasonable attorneys' fees, and costs for the takings by the government 5
6 of Guam of their respective private property, for public purposes, without having been given
7 just compensation. Plaintiffs each seek the implementation, administration, and enforcement of 8 4 Public Laws 22-73 and 23-128. 9 On February 29, 2012, Plaintiffs filed a motion for class certification. In addition and/or IO
II in the alternative to this motion, Plaintiffs and the class Plaintiffs represent, seek a writ of
I2 mandamus compelling the Defendants to perform the above stated duties as no other plain,
I3 speedy, or adequate remedy at law is available. On December 26, 2012, the Government of 14 Guam filed their opposition to motion for class certification. Subsequently on January 11, 2012, I5 Plaintiffs filed their reply to Defendant's opposition. The Court now issues its decision and 16
I7 order DENYING Plaintiffs motion for class certification.
I8 DISCUSSION 19 The issue before the Court is whether Plaintiffs' claims should be adjudicated on a 20 class-wide basis. Plaintiffs submit that their claims should proceed not individually but on 21
22 3 During the period including and within August 1, 1950 and July 1, 1994, the Government of 23 Guam expropriated from the Peredo Estate and its predecessors in interest in said private 24 property approximately 5,575 square meters of land, by encroaching upon said private property for the construction of the Toto-Canada Road, for a public purpose, without payment to it of just 25 compensation. 4 26 Inter alia this includes that the Governor of Guam be ordered to immediately research and compile and exhaustive list of all private property which has been taken by the various agencies 27 and departments of the government of Guam since 1945 and for which either no compensation o grossly inadequate compensation has been given, either in terms of money or by land exchanges, 28 and to fully comply with Section 2 (of Public Law 22-73) and all other provisions of said Public Laws. Page 4 of 16 behalf of the following class: all persons identified in Public Law 22-73 and Public Law 23- 2 128, specifically, all persons whose land was expropriated for public purposes by the 3 government of Guam between August I, 1950 and July 1, 1994 and who have not been 4 compensated by the Government of Guam for such taking. Certification of this or a similar 5
6 class is appropriate when the prerequisites of Rule 23(a) have been satisfied, in addition to the
7 requirements of Subsection (b)(2) and/or (b)(3). 8 A. Rule 23(a) 9 Under Guam law, certification of class actions is governed by the Guam Rules of Civil IO Procedure, Rule 23(a). It provides that a case is appropriate for certification as a class action if: II
I2 I) the class is so numerous that joinder of all members is impracticable; 2) there are questions
I3 of law or fact common to the class; 3) the claims or defenses of the representative parties are
I4 typical of the claims or defenses of the class; and 4) the representative parties will fairly and I5 adequately protect the interests of the class. G. R. Civ. Pro. Rule 23(a). When considering class I6 certification under Rule 23, courts must perform a rigorous analysis to ensure that the 17 prerequisites of Rule 23(a) have been satisfied. General Telephone Co. of the Southwest v. I8
I9 Falcon, 457 U.S. 147, 160-61 (1982). Once a court has determined that the prerequisites of
20 Rule 23(a) have been satisfied, it must then determine if the requirements of Subsection(b )(2) 2I and/or (b)(3) have been satisfied. This Court will first discuss the prerequisites under Rule 22 23(a). 23
24 1. Numerosity
25 Rule 23(a) requires the class be "so numerous that joinder of all members is
26 impracticable." G. R. Civ. Pro. Rule 23(a). In satisfying this prerequisite, there is no exact 27 numerical cut-off; the specific facts of each case must be examined to determine if 28 impracticability exists. See e.g. Gen. Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980). There is no
Page 5 of 16 hard or fast rule for how many class members there must be for this requirement to be met 2 Immigration Assistance Project of L.A. County Fed'n of Labor (AFL-C/0) v. lN.D.. 306 F.3d 3 842, 869 (9th Cir. 2002). In the instant case, Plaintitrs have identified the proposed class of 4 persons to include, pursuant to P.L. 22-73, Section 1: 5
6 1) Property owners who collectively owned at least 375,000 square meters of land taken since 1950; 7 2) Property owners who owned at least 12,603 square meters of land taken since 1988; 8 3) Property owners who collectively owned at least 28,705 square meters of land 9 taken on a temporary basis; and 4) Other property owners who collectively have had their land taken temporarily or 10 permanently between August 1, 1950 and July 1, 1994 from by eminent domain, to condemnation, to outright taking, to all government easements (for any II reason), and all similar means of taking. 12 P.L. 22-73 § I. 13 Plaintiffs argue that identifying an exact number of class members first requires the 14 5 15 Governor and the Government of Guam to comply with Section 2 of P .L 22-73. Pending this
16 report Plaintiffs contend that a finding of the number of possible class members can be 17 demonstrated through common sense. They reason that if one includes the period of time 18 6 covered by the class definition, (1950-1994), and/or the amount of property implicated, the 19 class would exceed hundreds of members, if not thousands. The Government does not oppose 20
21 this argument. As such, the Court finds Plaintiffs have satisfied the numerosity requirement.
22 2. Commonality 23 Rule 23(a)(2) is satisfied "if there are questions of law or fact common to the class." 24
25 5 This section mandates the research and compilation of an exhaustive list of all private property 26 which has been taken by the various agencies ofthe government of Guam since 1945. This list 27 must identify: the property o-vvner, the location of the property, whether compensation was given and accepted, the amount of the compensation if any, the current value ofthe property, and all 28 other pertinent information regarding the land to ensure justice for all. P.L 22-73. 6 A minimum of 375,000 sm + 12,60 sm + 28,705 sm +and all other takings from 1950 1994. Page 6 of 16 F.R.C.P. Rule 23(a)(2). The U.S. Supreme Court held, "[c]ommonality requires the plaintiff to 2 demonstrate that the class members 'suffered the same injury,' such that 'all their claims can be 3 productively litigated at once."' Wal-mart Stores, Ind. V Dukes. 131 S. Ct. 2541, 2551 (2011). 4 More specifically, Plaintiffs must show that their individual claims raise questions, when 5
6 answered, that will resolve a factual or legal issue that is central to the validity of each class
7 member's claim. !d. For the commonality requirement to be met, there must at least be one 8 issue common to the proposed class. In Re Telectronics Pacing Sys., Inc., 14 F.R.D. 222, 228 9 (S.D. Ohio 1995). 10 Plaintiffs argue that commonality is met because each potential class member has a II
I2 private property interest in land or property in Guam, which was expropriated or taken by the
13 Government of Guam for public purposes and each is entitled by law to bring an action for I4 compensation under P.L. 22-73 and 23-128. They also argue that the questions raised by their I5 claims will generate answers that resolve the Plaintiffs and the whole class's right to relief and 16 just compensation. 17 The Government opposes this argument and submits as a general rule, that courts do 18
19 not consider inverse condemnation suits as appropriate for class action. See 27 Am. Jur. 2d
20 Eminent Domain § 802. The most common reasons for denying class certification in inverse 2I condemnation cases are the failure to satisfy the commonality, typicality and adequacy 22 prerequisites of Rule 23(a). See City of San Jose v. Superior Court, 12 Cal.3d 447, 525 P.2d 23 701,(Cal. 1974). 24
25 Plaintiffs, in their reply, argue that inverse condemnation class actions are appropriate.
26 In support ofthis argument the Plaintiffs cite several cases. Foster v. Detroi, 405 F.2d 138 (6th 27 Cir. 1968); City of San Jose v. Superior Court of Santa Clara Cty., 525 P.2d 701; Alexisos v. 28 Metropolitan Airports Comm 'n of}v!inneapolis & St. Paul, 216 N.W.2d 651 (1974); Corsello v.
Page 7 ofl6 New York, Inc., Court of Appeals, New York (March 29, 2012). The Court finds these 2 cases to be distinguishable from the instant matter. 7 3 The Government submits it is the uniqueness of the individual parcels that make 4 the class treatment in this case inappropriate. See also Friedman v. SanRafael Rock 5
6 Quarry, 10 Cal.Rptr.3d 82, 116 Cal. App. 4th 29 (2004) (variables that prevented class
7 action in San Jose held analogous to the variables in this case). Even if class certification 8 was warranted in inverse condemnation cases, the Government contends there are only 9 limited circumstances where class certification is granted and such specific facts are not 10
7 12 In City of San Jose v. Superior Court, in which Plaintiffs sued the city on behalf of all real property owners located in the flight pattern of the San Jose Municipal Airport, for nuisance 13 and inverse condemnation. !d. 12 Cal.3d 452-53, 525 P.2d 704-705. The California Supreme 14 Court reversed the trial court decision and found the matter was not appropriate for class treatment, because the community of interest requirement is not satisfied if every member of 15 the alleged class would be required to litigate numerous and substantial questions determining his individual right to recover because the actions were predicated on facts peculiar to each 16 prospective plaintiff. !d. 12 Cal .3d 459-60, 525 P .2d 709-710. The California court relied on 17 the rational that each parcel of land is unique, that development, use, topography, zoning, physical condition, and relative location are among the most important criteria to be 18 considered. Id, 12 Cal.3d 460-61. 525 P.2d 710. 19 Moreover, even were we to allow a subclassification process here, the factors 20 giving the uniqueness rule vitality would serve to break down the alleged beneficial aspects which such a process might yield under these facts, making a 21 class action here unmanageable. Given the many recognized factors combining to make up the uniqueness of each parcel of land, the number of sub classifications 22 into which the class would be required to be divided to yiled any meaningful 23 result would be substantial. Under such circumstances, there is little or no benefit in maintaining the action as a class. 24 Conversely, these uniqueness factors weigh heavily in favor of requmng 25 independent litigation of the liability to each parcel and its owner. The superficial 26 adjustions which class treatment here would entail could deprive either the defendant or the members of the class - or both - of a fair trial. Reason and the 27 constitutional mandates of due process compel us to deny sanction to such a 28 proceeding.
Id, 12 Ca1.3d 462, 525 P.2d 711. Page 8 of16 present in the instant case. In Dellaselva v. Florida Dep 't of Agri. & Consumer Services, 2 the Florida Circuit Court determined class certification was appropriate because 3 resolution of the case primarily involved determining whether the government's 4 destruction of uninfected citrus trees constituted a taking and, if so, the replacement cost 5
6 of the destroyed trees is easily calculated. 926 So.2d 1293 (Fla. App.), review denied 940
7 So.2d 427 (Fla. 2006). 8 8 Plaintiffs also argue that a common issue which entitles them to class certification is the 9 Government's failure to comply with the requirements of P.L. 22-73. The Government 10
II contends that it is not the Government's failure to compile a list which gives rise to entitlement
12 to just compensation. The Court agrees. Plaintiffs cannot shift their burden of proving the 13 existence of an ascertainable class to the Government. See Wa/-Afart, 564 U.S. 131 S.Ct. 14 2551; Dept. of Fish & Game, 197 Cal.App.4th 1331, 129 Cal.Rptr.3d 728 (citing Linder v. 15 Thrifty Oil Co., 97 Cal.Rptr.2d 179, 23 Cal.4th 429, 435 (2000)). 16
17 The Court recognizes that the Government understands its constitutional obligation to
18 fairly compensate property owners for land taken for public purposes and its intentions are 19 aligned with the Guam legislature to cure past -wrongs and provide just compensation for 20 persons whose land was taken and not adequately compensated. However, the records required 21 to create such a list contemplated by P .L. 22-73 and P .L. 23-128 do not exist. Declaration of 22
23 Serafin Monte G. Mafnas in Support of Opposition to Plaintiffs' Motion to Certify, ~~ 6, 8;
25 8 Dellaselva is distinguishable from the instant case because this case does not have a uniformed 26 formula which can be applied to determine just compensation for each individual property owner. In Dellaselva a methodology to establish damages existed which would result in a 27 uniform result, thus avoiding the necessity of holding individual damages hearings./d. at 9. The 28 Court finds in the instant case, there are no common questions of law or facts. Each parcel of land is unique and the determination of just compensation would require a separate analysis and appraisal report. Page 9 of 16 Mafnas DecL ~ 5, 9 (Records relating to Federal Highway roadwork projects over the years 2 were not always recorded with Land Management by the U.S. Government); Mafnas Decl., ~ 9 3 (even if funding and human resources were available to perform a comprehensive title exam of 4 the entire island, the information required in P.G. 22-73 could not be determined). 5
6 Under Guam law, "the law never requires impossibilities." 20 G.C.A. § 15123. The
7 Court finds the Plaintiffs have not met their burden in proving common questions of law or 8 fact. Since Plaintiffs have not met the commonality requirement, the Court denies Plaintiffs 9 motion for class certification. Nonetheless the Court will briefly address the prerequisites of 10
1I typicality and adequacy.
12 3. Typicality 13 Rule 23(a)(3) requires that, "the claims or defenses of the representative parties [be] 14 typical of the claims or defenses ofthe class." F.R.C.P. Rule 23(a)(3). Plaintiffs argue that their 15 interests are sufficiently aligned with the class, and their claims will thus be deemed 'typical' of 16
the class, since they has suffered the same injury as other class members and that injury was 17
18 caused by the same course of conduct by the Defendant. They assert that thier claims arise
19 from same course of conduct, Government takings of land for public purposes, and thus the 20 named representatives in Plaintiffs' claims rest on the same legal theories as those of the 21 proposed class. 22 The Government contends there is no presumption of typicality. See Wal-Mart, 131 23
24 S.Ct. at 2551-52 (citing Falcon). Although the claims arise from the same course of conduct
25 each parcel of property is unique and the damages alleged by the Plaintiffs would vary and a 26 case-by-case analysis would be necessary to evaluate adverse impacts on individual parcels of 27 property. Dept. ofFigh & Game, 197 Cal.App.4th 1331, 129 Cal.Rptr.3d727. The Court is San 28 Jose, further explained that Page 10 of 16 The grouping and treating of a number of different parcels together, however, necessarily diminishes the ability to evaluate the merits of each parcel. The 2 superficial adjudications which class treatment here would entail could deprive 3 either the defendant or the members of the class or both of a fair trial. Reason and constitutional mandates of due process compel us to deny sanction to such a 4 proceeding. 5 City of San Jose, 12 Cal.3d 462, 525 P.2d 711. The Government argues that the Plaintiffs 6 who seek to be representatives of the proposed class do not possess the same interest and 7 suffer the same injury as the class of Plaintiffs, thus they cannot fairly and adequately 8
9 represent the interests of the class. Furthermore, as a means to ensure that representative
10 parties protect the interests of the absent class members, courts have imposed a fiduciary II duty to do so on the representative class members. La Sa/a v. American Sav. & Loan 12 Assn., 5 Cal. 3d 864,871 (1971). 13 The Court finds certification of the class would violate Plaintiffs' fiduciary duty to raise 14
15 claims reasonably expected to be raised by every member of the proposed class. Each property
16 owner would be needed to testify as an expert witness9 about the value of their property. This 17 type of testimony cannot be substituted by the named Plaintiffs who seek to be representatives 18 of the class. Accordingly, the requirement of typicality has not been met. 19
20 4. Adequacy
21 The adequacy prerequisite of F.R.C.P. Rule 23(a)(4) applies both to the ability to fairly
22 and adequately represent the interests of the class members by possessing the same interests, as 23 well as the adequacy of the attorneys to competently represent the class. See Lerwill v. b?flict 24 "Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978. Adequacy requires, "1) that the 25 proposed representative Plaintiffs do not have conflicts of interest with the proposed class, and 26
Page ll of 16 2 , 614 (9th Cir, 201 0), rev 'don other grounds, 131 S. Ct. 2541 (20 11 ). Ind., 603 F.3d 3 Plaintiffs submit the representatives do not have conflicts of interests with the proposed 4 class. The Plaintiffs seek on behalf of themselves and the class, the implementation, 5
6 administration, and enforcement of P.L. 22-73 and 23-128. Although no conflict of interest
7 exists, the Court finds: 1) there is no common issue of law or fact to be determined on behalf of 8 the case due to the unique nature of each parcel of land, and 2) the damages are not typical to 9 each land owner and must be calculated and determined on a separate and individual basis. 10 B. Rule 23(b)(2) and or (b)(3) II
12 A party seeking class certification bears the burden of establishing an appropriate
13 ground for class action under Rule 23(b). !d. 158-61. In addition to the prerequisites of Rule
14 23(a), Plaintiffs seeking class certification must also satisfy one of the subsections of Rule 15 23(b ). It provides: 16 (B) Types of Class Action. A class action may be maintained if Rule 23(a) is 17 satisfied and if: 18
19 (2) the party opposing the class has acted or refused to act on grounds generally 20 applicable to the class, thereby making appropriate final injunctive relief or 21 corresponding declaratory relief with respect to the class as a whole; or
22 (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that 23 a class action is superior to other available methods for the fair and efficient 24 adjudication of the controversy. The matters pertinent to the findings include:
25 (A) the interest of members ofthe class in individually controlling the prosecution or defense of separate actions; 26
27 9 Federal and Guam Rules of Evidence Rule 702 permit landowners to be included in a unique 28 subset of experts known as "skilled witnesses." Unlike other valuation experts, their opinion testimony is admissible without further qualification. 12 of 16 (B) the extent and nature of any litigation concerning the controversy 2 already commenced by or against members of the class; 3 (C) the desirability or undesirability of concentrating the litigation of the 4 claims in the particular forum; 5 (D) the difficulties likely to be encountered in the management of a class 6 action. 7 G.R.C.P. Rule 23(b) (emphasis added). Since Plaintiffs have failed to meet their burden in 8 satisfying the prerequisites of Rule 23(a), and the Court finds class certification is denied, the 9 issue is moot. Nonetheless, the Court will briefly discuss the requirements of Subsection (b)(2) 10
II and (b)(3).
12 Rule 23(b)(2) provides for certification where "the party opposing the class has acted or 13 refused to act on grounds that apply generally to the class, so that final injunctive relief or 14 corresponding declaratory relief is appropriate respecting the class as a whole." G.R.C.P. Rule 15 23(b )(2). Plaintiffs submit that challenges to government action are a paradigmatic use of Rule 16
17 23(b)(2) certification:
18 The use of the class action device . . . is a common and necessary means of challenging unfair statutes, regulations and policies in an area where the 19 individual claimant is unlikely to bring suit because of poverty and 20 inaccessibility of judicial relief as an economic matter. Many class action suits have been brought against the United States Department of Health and Human 21 Services .... , state welfare departments, state unemployment insurance boards, and other governmental agencies to challenge laws and regulations that 22 discriminate or are otherwise unconstitutional either on their face or in practice. 23 Conte & Newberg, Newberg on Class Actions §23:1; see also Dukes, 131 S. Ct. at 2557-58 24 ("[c ]ivil rights cases against parties charged with unlawful, class-based discrimination are 25
26 prime examples of what (b)(2) is meant to capture"); Baby Neal, 43 F.3d at 58-59 ("It is the
27 (b )(2) class which serves most frequently as the vehicle for civil rights actions and other 28 institutional reform cases that receive class action treatment). Plaintiffs contend that by
Page 13 of 16 proceeding on behalf of all affected members of the public rather than just the named plaintiffs, 2 10 Rule 23(b )(2) certification achieves many important benefits. 3 In Wal-Mart, the Supreme court held that Rule 23(b)(2) " ... does not authorize class 4 certification when each class member would be entitled to an individualized award of monetary 5
6 damages." 131 S.Ct. 2557. The Government cites to another case, Ninth Circuit precedent prior
7 to Wal-lvfart, which parallels Wal-Mart's holding and provides that class certification under 8 Rule 23*(b)(2) is appropriate only where the primary relief sought is declaratory or injunctive. 9 Nelson v. King County, 895 F.2d 1248, 1254-55 (91h Cir. 1990). Class action treatment would 10 necessitate individual scrutiny as to the nature of each alleged taking, expert opinion as to land II
12 valuation for each parcel, assessment of damages for partial takings, and special benefit
13 analysis which would legally offset any damages. See United States v. River Rouge 14 Improvement Co., 269 U.S. 411 (1926). The Court agrees. It finds in this matter that damages 15 must be determined on an individual basis and not uninformed treatment through class 16
17 certification.
18 Rule 23(b )(3) provides for class certification where questions of law or fact common to 19 the members predominate over any questions affecting only individual members, and that class 20 action is superior to other available methods for the fair and efficient adjudication of the 21 controversy. G.R.C.P. Rule 23(b)(3). In determining Subsection(b)(3), the Court will also take 22
23 into consideration whether the resolution of questions common to all the class members
25 10 This allows: i) important and publicly beneficial claims to be brought that otherwise would be 26 economically infeasible; ii) avoids mootness issues since even ifthe named plaintiffs claims become stale with the passage of time, a live controversy on behalf of the class will still exist; iii) 27 enhances the effectiveness of any judgment since any class member will be able to monitor the defendants' compliance and bring suit to enforce violations; and iv) ensures that all those affect 28 by discrimination in the past will be treated equally when to affording relief. See Conte & Newberg, Newberg on Class Actions§§ 12:7-11. Page 14 of16 through a class action would be far more efficient than having a number of separate trials. 2 1 Valentino v. Carter- Wallace, Inc., 97 F .3d 1227, 1234 (9 h Cir. 1996). 3 In the instant case, Plaintiffs argue certification would help achieve judicial economy 4 and a class action is superior to other available methods for adjudication of this claim. 5
6 Furthermore, Plaintiffs contend as a matter of law they are entitled to the implementation,
7 administration, and enforcement of P .L. 22-73 and 23-128. 8 The Government responds that the issue primarily turns on whether the legal and factual 9 issues that must be resolved are "predominantly common to all class members or must be 10 determined on an individual basis." Dept. of Fish & Gave, supra, 197 Cal.App.4th 1329, 129 II
12 CaLRptr.3d 726. As stated above, the legal and factual issues that must be resolved in
13 Plaintiffs' asserted claims for inverse condemnation are not predominantly common to all of 14 the proposed class members. 11 Valentino v. Carter-Wallance, Ind., 97 F.3d 1227, 1234-35 (9th 15 Cir. 1996). 16
27 11 The Court finds there is no common issue of law or fact to be determined on behalf of the
class. Each alleged taking would have to be established, expert real estate appraisals obtained 28 and analyzed, testimony from each individual property owner, and the amount of compensation for each unique parcel of land would have to be determined. Page 15 of 16 CONCLUSION 2 Based on the foregoing, the Court denies Plaintiffs motion for class certification on the 3 grounds that Plaintiffs have failed to meet their burden in satisfying the prerequisites of Rule 4 23(a)(2) and (a)(3), commonality and typicality. In addition, the Court finds Plaintiffs do not 5
6 satisfy the requirements of Rule 23(b)(2) or (b)(3).
8 SO ORDERED, this J ictay of ~ 2013. 9
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