Montoya v. City of San Diego

Opinion

1 2 3 4 5 6 9 10 ALEX MONTOYA; REX SHIRLEY; Case No.: 19cv0054 JM(BGS) PHILIP PRESSEL; and WYLENE 11 HINKLE; individually, and on behalf of ORDER ON MOTION FOR CLASS 12 all others similarly situated, CERTIFICATION 13 Plaintiffs, 14 v. 15 CITY OF SAN DIEGO, a public entity; and DOES 1-100, 16 Defendants. 17 18 19 Presently before the court is Plaintiffs’ Motion for Class Certification. (Doc. No. 20 135.) The motion has been fully briefed and the court finds it suitable for submission on 21 the papers and without oral argument in accordance with Civil Local Rule 7.1(d)(1). For 22 the reasons set forth below, Plaintiffs’ motion is denied without prejudice. 23 I. Background 24 On January 9, 2019, Plaintiffs, who are individuals with disabilities, filed a putative 25 class action complaint asserting claims for violations of the ADA, 42 U.S.C. § 12101 et 26 seq., section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., California Civil Code 27 section 51, et seq., (the “Unruh Act”), California Civil Code section 54, et seq., (the 28 1 “DPA”); California Government Code section 4450, et seq., and California Government 2 Code section 11135, et seq. (Doc. No. 1.)1 3 In the operative Second Amended Complaint it is alleged that Plaintiffs have found 4 their access to San Diego’s sidewalks diminished by the proliferation of dockless electric 5 vehicles currently in use in the City. (Doc. No. 97, “SAC”, ¶¶ 1, 2, 12, 13, 14, 15.) They 6 allege that people using the dockless electric vehicles either travel on the sidewalks or 7 block paths of travel because the vehicles are discarded in the middle of sidewalks or at 8 other rights-of-way, making it difficult for people with disabilities to safely traverse the 9 pathways. (Id. at 2, 3.2) Further, the SAC alleges that as usage and abandonment of these 10 vehicles and the speed at which they travel increases, Plaintiffs are denied safe, equal, and 11 full access to the sidewalks. (Id. ¶¶ 20-29.) In Plaintiffs’ words, the vehicles’ “burgeoning 12 proliferation and uncurbed growth comes at the detriment of the rights of all disabled 13 persons with mobility and/or visual impairments who are residents and visitors of the City 14 of San Diego, causing Plaintiffs injury, severe anxiety, diminishing their comfort and 15 discriminating against them based on their disabilities….” (Id. at ¶ 30.) Plaintiffs direct 16 allegations at the City regarding its responsibilities as a municipality and the duty it has to 17 maintain the sidewalks. (See, e.g., id. at ¶¶ 31-34, 37, 41-42, 53, 55-61, 68-72, 76-79, 83, 18 87-91, 97-100, 107-108, 111.) As set forth in the SAC, Plaintiffs seek to represent a 19 putative class of all residents of the City of San Diego with mobility or visual impairments 20 divided into two subclasses: 21

22 23 1 On March 21, 2019, Plaintiffs filed the First Amended Class Action Complaint (“FAC”). (Doc. No. 14.) The court issued a detailed order denying the City’s motion to dismiss the 24 FAC but granting the motions to dismiss brought by the private entities that rent the 25 dockless vehicles to third party individuals, which Plaintiffs categorized as the “Dockless Vehicle Defendants.” (See Doc. No. 89.) Plaintiffs chose not to amend their claims against 26 the Dockless Vehicle Defendants. 27 2 Document numbers and page references are to those assigned by CM/ECF for the docket 28 1 a. Residents of the City of San Diego with mobility impairments (the Mobility Impairment Subclass”) and, 2 b. Residents of the City of San Diego with visual impairments (the “Visual 3 Impairment Subclass”). 4 SAC ¶ 39. 5 On January 29, 2021, Plaintiffs filed the motion for class certification. (Doc. No. 6 135.) On February 18, 2021, the City filed an ex-parte motion seeking to reset the hearing 7 and briefing schedule on the class certification motion that was granted by the court. (Doc. 8 Nos. 136, 137.) Accordingly, the City duly filed its opposition, (Doc. No. 138) and 9 Plaintiffs filed their reply (Doc. No. 139). 10 I. Legal Standard 11 District courts retain the discretion to determine whether to certify a class. Bouman 12 v. Block, 940 F.2d 1211, 1232 (9th Cir. 1991). “Parties seeking class certification must 13 satisfy each of the four requirements of [Federal Rule of Civil Procedure] 23(a) . . . and at 14 least one of the requirements of Rule 23(b).” Briseno v. ConAgra Foods, Inc., 844 F.3d 15 1121, 1124 (9th Cir. 2017). “Rule 23(a) states four threshold requirements applicable to 16 all class actions: (1) numerosity (a class so large that joinder of all members is 17 impracticable); (2) commonality (questions of law or fact common to the class); 18 (3) typicality (named parties’ claims or defenses are typical of the class); and (4) adequacy 19 of representation (representatives will fairly and adequately protect the interests of the 20 class).” Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 613 (1997) (internal quotation 21 marks, brackets, and ellipses omitted). 22 When considering class certification, district courts must engage in “a rigorous 23 analysis” to determine whether “the prerequisites of Rule 23(a) have been satisfied.” Wal– 24 Mart v. Dukes, 564 U.S. 338, 350-51 (2011) (citing Gen. Tel. Co. of the Sw. v. Falcon, 25 457 U.S. 147, 161 (1982)). “[T]he merits of the class members’ substantive claims are 26 often highly relevant when determining whether to certify a class.” Ellis v. Costco 27 Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011). “A court, when asked to certify a 28 class, is merely to decide a suitable method of adjudicating the case and should not turn 1 class certification into a mini-trial on the merits.” Edwards v. First Am. Corp., 798 F.3d 2 1172, 1178 (9th Cir. 2015). 3 Plaintiffs also contend that in addition to satisfying these four Rule 23(a) 4 requirements, class certification is warranted under Rule 23(b)(2) requirements. Rule 5 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds 6 that apply generally to the class, so that final injunctive relief or corresponding declaratory 7 relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “Rule 8 23(b)(2) exists so that parties and courts, especially in civil rights cases [], can avoid 9 piecemeal litigation when common claims arise from systemic harms that demand 10 injunctive relief.” Brown v. D.C., 928 F.3d 1070, 1083 (D.C. Cir. 2019). In making this 11 showing, the plaintiffs must submit evidence to support class certification under Rules 12 23(a) and (b). Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308-09 (9th Cir. 1977). If 13 the plaintiffs fail to show that all elements of class certification are satisfied, class 14 certification should be denied. Gen. Tel. Co. of the Sw. 457 U.S. at 161. 15 II. Discussion 16 In opposition to Plaintiffs’ request for class certification, the City argues that the 17 motion should be denied because the proposed class is not ascertainable and is inadequately 18 defined. (Doc. No. 138 at 27-29.) The court finds City’s arguments to be persuasive. 19 “The ascertainability of a class ensures that class members are reasonably 20 identifiable.” Romero v. Securus Techns., Case No. 16cv1283 JM (MDD), 2018 WL 21 1782926, *2 (S.D. Cal. Apr. 12, 2018). The Ninth Circuit has never expressly adopted a 22 threshold ascertainability requirement, see, e.g., Briseno v. ConAgra Foods, Inc., 844 F.3d 23 1121, (9th Cir. 2017), although it has addressed ascertainability issues through analysis of 24 Rule 23’s requirements. See, e.g., Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136- 39 25 (9th Cir. 2016) (addressing claim that class definition was overboard as a Rule 23(b)(3) 26 predominance issue); Pierce v. Cnty. of Orange, 526 F.3d 1190, 1200 (9th Cir. 2008) (Rule 27 23(b) does not offer “a superior method of fair and efficient adjudication in light of 28 expected difficulties identifying class members”); Probe v. State Teachers’ Ret. Sys., 1 780 F.2d 776, 780 (9th Cir. 1986) (indicating that a class must be “sufficiently definite to 2 conform to Rule 23.”). 3 A class definition must be “precise, objective, and presently ascertainable.” 4 O'Connor v. Boeing N. Am., Inc., 197 F.R.D. 404, 416 (C.D. Cal. 2000). “An adequate 5 class definition specifies ‘a distinct group of plaintiffs whose members [can] be identified 6 with particularity.’” Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 593 7 (E.D. Cal. 2008) (quoting Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th 8 Cir. 1978)). As observed by the Manual for Complex Litigation, “Rule 23(b)(3) actions 9 require a class definition that will permit identification of individual class members, while 10 Rule 23(b)(1) or (b)(2) actions may not.” 11 Here, Plaintiffs seek certification of a class consisting of: 12 Residents of the City of San Diego with mobility and/or visual impairments who, based on their disabilities, have been denied free, safe, and independent 13 access to public pedestrian walkways in the City, including sidewalks, cross- 14 walks, and transit stops; have been denied equal enjoyment of these walkways; and/or, who have been deterred from using these walkways 15 because of the obstructive presence of dockless vehicles on the City’s rights- 16 of way. 17 Doc. No. 135-1 at 7. This proposed class definition differs from the one set forth in the 18 SAC as it no longer contains subclasses, see SAC at ¶¶ 16, 39. 19 City contends that the class is not ascertainable and the definition is inadequate 20 because: (1) it is not limited in time and includes future disabled individuals; (2) “mobility 21 and/or visual impairments” is not defined so the extent a person must be impaired to be a 22 member of the purported class is unknown; (3) the terms “free, safe, and independent 23 access” are not defined; (4) the use of broad terms like “public pedestrian walkways” and 24 the City’s rights-of-way increases the risk that class members will become confused as to 25 26 27 28 1 whether the City or another government agency owns various “rights-of-way;” and (5) how 2 obstructive the dockless vehicle needs to be is not defined. (Doc. No. 138 at 27-29.) 3 To cure any potential defects pertaining to the definition of the disabilities of class 4 members, in their reply brief Plaintiffs proposed additional language to further define the 5 class. Plaintiffs suggest the following addition: 6 For the purpose of class certification, persons with mobility impairments are those who use wheelchairs, scooters, crutches, walkers, canes or similar 7 devices and/or have prosthetic limbs or medical conditions that make walking 8 more difficult or slow their reaction time; persons with visual impairments are those who due to their impairments use canes or service animals for 9 navigation. 10 Doc. No. 139 at 4 n. 3. 11 District courts have the discretion to modify a class definition during the certification 12 process. See Nevarez v. Forty Niners Football Co., LLC, 326 F.R.D. 562, 575 (“[D]istrict 13 courts have broad discretion to modify class definitions,” including considering changes to 14 class definitions proposed in reply briefs.) (citations omitted). However, the proposed 15 additional language3 addresses only one of the many issues the court has with the broadness 16 of the currently proposed class definition. 17 Not only does the definition of disability need to be better defined, so too does the 18 harm suffered, specifically the terms “denied” and “deterred.” A definition that simply 19 uses the term “denied” or “deterred”, without more, provides nothing to differentiate the 20 nuisance the presence these dockless vehicles on sidewalks and public rights-of-way create 21 to potentially all members of the general public when carelessly abandoned by the user. 22

23 3 The court does not take issue with the proposed language regarding a class members’ 24 qualifying disability and finds it to be in keeping with case law. See, e.g., Californians for 25 Disability Rights, Inc. v. Cal. Dep’t Transp., 249 F.R.D. 334, 343, 350 (N.D. Cal. 2008) (defining class of persons with mobility disabilities as “those who use wheelchairs, 26 scooters, crutches, walkers, canes, or similar devices to assist their navigation along 27 sidewalks” and those with vision disabilities as “those who due to a vision impairment use canes or service animals for navigation along sidewalks.”). 28 1 As the court explained previously, “the City cannot guarantee that individuals with 2 disabilities will not encounter some impediments when they move around on the sidewalks. 3 The realities of everyday life mean that a ‘perfect’ ADA accessible sidewalk does not exist 4 in the constantly changing variable that is city living.” (Doc. No. 142 at 8.) See also Evans 5 v. Bird Rides, Case No. 19-CV-01207-VC, 2019 WL 5864583, at *2 (N.D. Cal. Nov. 8, 6 2019) (noting that “temporary denials of access do not violate the ADA”). Moreover, a 7 person with vision impairments may be injured differently than a mobility impaired 8 individual, and a person who walks with a limp or with the assistance of a cane may be 9 injured differently than someone who uses a wheelchair. Similarly, how the presence of 10 the dockless vehicles “deters” any of the proposed class members from using sidewalks, 11 crosswalks, and transit stops is not accounted for in the broad, catchall definition provided 12 by Plaintiffs. See Labowitz v. Bird Rides, Inc., Case No. CV 18-9329-MWF (SK), 2020 13 WL 2334116, at *18 (C.D. Cal. Mar. 31, 2020) (court denied motion to strike class 14 allegation but voiced skepticism about the proposed class’s breadth, explaining, while 15 wheelchair-bound individuals or those using guide dogs are injured differently than the 16 general public, “the Court is unsure that same logic applies to those who walk with a limp, 17 or have disabilities to a lesser extent.”). And, to the extent that either “denial” or “deterred” 18 claims would stem from the fear of a moving dockless vehicle, in other words one based 19 on psychological injury, such a fear cannot be the basis of an ADA Title II denial-of access 20 claim. See Evans, 2019 WL 5864583, at *2 n. 1 (“it seems unlikely that this sort of 21 psychogenic difficulty gives rise to denial-of-access claims under Title II or section 504.”). 22 Along the same lines, it is also unclear what exactly is meant by “denied free, safe or 23 independent access.” The words “free,” “safe” and “independent” may embody different 24 meanings for different people, therefore, leaving these terms undefined with no 25 clarification, provides no guidance to potential class members or to the court. 26 The court also takes issue with the lack of explanation surrounding the phrase 27 “obstructive presence of dockless vehicles.” As the City points out, “if a disabled person 28 is able to navigate around [the dockless vehicle], as the named plaintiffs admit they are 1 often able to do, is that an ‘obstructive’ presence?” (Doc. No. 138 at 28.) In other words, 2 what constitutes an obstruction for one member of the class, may not necessarily constitute 3 an obstruction for another. Such an open-ended phrase provides little help to potential 4 class members as to whether they may file a claim. See Krueger v. Wyeth, Inc. 310 F.R.D 5 468, 475 (S.D. Cal. 2015) (“Under the law of th[e] [N]inth [C]ircuit, it is enough that the 6 class definition describes ‘a set of common characteristics sufficient to allow’ an individual 7 to determine whether she is a class member with a potential right to recover.”). 8 Furthermore, absent from the class definition is any specified time period. In 9 response to City’s concerns regarding this omission, Plaintiffs respond that its argument is 10 “baseless since the dockless vehicles entered the City three years ago,” (Doc. No. 139 at 4 11 n. 1). But the lack of a specified period of time overlooks the fact that courts are divided 12 as to whether to apply a two- or three-year statute of limitations to Unruh damages claims, 13 see O’Shea v Cnty. of San Diego, Case No. 19-cv-1243-BAS-BLM, 2019 WL 4674320 at 14 *4 (S.D. Cal. Sept. 24, 2019)4, whereas the injunctive relief claim brought under Title II of 15 the ADA is subject to a three-year statute of limitations. 16 Finally, while ascertainability, like numerosity, does not require a precise number of 17 class members, the motion summarily concludes that “common sense indicate[s] the Class 18 is comprised of a minimum of several hundred to many thousands of persons.” (Doc. No. 19 135-1 at 20.) Plaintiffs reach this conclusion by pointing to the number of individuals with 20 21 22 4 “Some hold California's two-year personal injury statute of limitations applies to Unruh 23 claims, like it does to section 1983 claims. See, e.g., Gatto v. Cnty. of Sonoma, 98 Cal. App. 4th 744, 760 (2002); Hartline v. Nat'l Univ., No. 2:14-cv-0635 KJM AC, 2015 WL 24 4716491 (E.D. Cal. August 7, 2015). Others have applied a three-year statute of limitations 25 to claims under the Unruh Act. See, e.g., Kramer v. Regents of Univ. of Cal., 81 F. Supp. 2d 972, 978 (N.D. Cal. 1999); see also Olympic Club v. Those Interested Underwriters at 26 Lloyd's London, 991 F.2d 497, 501 n.11 (9th Cir. 1993) (indicating in dicta that the three- 27 year statute of limitations of California Code of Civil Procedure § 338(a) should apply to claims under the Unruh Act).” O’Shea, 2019 WL 4674320 at *4. 28 1 || vision and mobility-related disabilities living in San Diego’, and the number of dockless 2 || vehicle complaints filed with the City on the “Get it Done” App. But it does not follow 3 ||that every mobility impaired or vision impaired person resident of San Diego has 4 ||encountered a dockless vehicle. Neither does it necessarily follow that a number of 5 disabled persons were among the individuals who submitted complaints on the “Get it 6 ||Done App.” Thus, at the present time, the court is unable to determine a reasonable 7 ||estimate of the number of people constituting the purported class, let alone the exact 8 ||contours of the proposed class. See Feinman v. Fed. Bureau of Investigation, 269 F.R.D. 9 || 44, 49 (D.D.C. 2010) (“plaintiff must ordinarily demonstrate some evidence or reasonable 10 || estimate of the number of purported class members.”). 11 Conclusion 12 For the foregoing reasons, the court DENIES the motion for class certification 13 || without prejudice because Plaintiffs fail to sufficiently identify an ascertainable and 14 || adequately defined class. (Doc. No. 138.) Accordingly, Plaintiffs’ may file a renewed 15 |}motion for class certification, with a more defined class, within 30 days of entry of this 16 || order. 18 |} Dated: _ June 9, 2021 19 Peg iol, 0 n’ Feffrey/f. Miller nited States District Judge 21 22 23 24 25 0Sti<‘i‘ C WS

27 ||° In doing so, Plaintiffs ask the court to rely on two pages of data pulled from the 2018 American Community Survey census. (See Doc. No. 135-1 at 20; Doc. No 135-15; Doc. No. 139 at 4-5.)