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Carrie Hawecker and Michelle Broussard v. Rawland

January 12, 2011


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



This case involves allegations of sexual harassment and sex discrimination in violation of the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq ., and related state laws.

Plaintiffs move to certify a class action under Fed. R. Civ. P. 23(a) and 23(b)(2). Doc. 22. Defendant filed an opposition (Doc. 33), to which Plaintiffs replied (Doc. 38).


Defendant owns and operates over 50 properties, mostly single family homes, in Bakersfield, California. Defendant manages the properties, collects rent, and performs evictions. Named Plaintiffs are Defendant‟s former tenants.*fn1

On January 15, 2010, Plaintiffs filed a complaint against Defendant. Plaintiffs assert claims under the FHA, California Fair Employment and Housing Act, California Unruh Civil Rights Act, California Business and Professions Code, and California Code of Civil Procedure. Plaintiffs allege that Defendant has a continuous pattern or practice of discrimination and harassment against women in the ownership and operation of rental properties, including: (1) making offensive statements to female tenants about their bodies; (2) asking female tenants to pose nude in exchange for rent reductions or rent workout agreements; (3) touching female tenants‟ bodies; (4) proposing that female tenants engage in sexual activities in exchange for rent reduction; and (5) using the threat of filing, filing, or agreeing to dismiss, unlawful detainer actions to coerce female tenants into sexual activities. Plaintiffs seek (1) individual compensatory and punitive damages and (2) injunctive and declaratory relief on behalf of themselves and past, current and future female tenants of Defendant. Defendant filed an answer February 22, 2010.

Plaintiffs now move for class certification for purposes of injunctive and declaratory relief. Specifically, they seek to certify a class defined as:

All women who, since January 1, 1995, have resided in a rental unit owned or operated by Rawland Leon Sorensen, including future female tenants.

Plaintiffs also seek to have their counsel appointed as class counsel. Defendants filed an opposition (Doc. 33), and Plaintiffs filed a reply (Doc. 38).


A class action "may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Gen. Tel. Co. of Sw v. Falcon , 457 U.S. 147, 161, 102 S.Ct. 2364 (1982). The four requirements of Rule 23(a) are: (1) the class must be so numerous that joinder of all members is impracticable; (2) there must be questions of law or fact common to the class; (3) the claims of the class representatives must be typical of the claims of the class; and (4) the class representatives must fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).

In addition to satisfying Rule 23(a), a proposed class must also fit within one of three categories in Rule 23(b). Here, Plaintiffs seek certification under Rule 23(b)(2). Class certification under Rule 23(b)(2) may be maintained if "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2).

The party seeking class certification has the burden of demonstrating that all the requirements of Rule 23(a) and at least one requirement of Rule 23(b) are met. Dukes v. Wal-Mart Stores, Inc. , 603 F.3d 571, 580 (9th Cir. 2010).

District courts have broad discretion to determine whether to certify a class, and may revisit certification throughout the proceeding. Armstrong v. Davis , 275 F.3d 849, 872 n.28 (9th Cir. 2001). In deciding class certification, the primary question is not whether plaintiffs have stated a cause of action that will prevail on the merits, but whether the party seeking certification has met the requirements of Rule 23. United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int‟l Union, AFL-CIO v. ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010). Courts must perform a rigorous analysis to ensure that Rule 23‟s requirements are actually satisfied, not simply presumed from the pleadings. Dukes , 603 F.3d at 581-582. The analysis will often require looking behind the pleadings, even to "issues overlapping with the merits of the underlying claims." Id. at 581.



Neither parties address standing explicitly, but federal courts are required to examine it sua sponte . D‟Lil v. Best W. Encina Lodge & Suites , 538 F.3d 1031, 1035 (9th Cir. 2008).

Standing is the threshold issue in any lawsuit. Emp‟rs-Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Anchor Capital Advisors , 498 F.3d 920, 923 (9th Cir. 2007). "If the individual plaintiff lacks standing, the court need never reach the class action issue." 1 ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS 400 (4TH ed. 2002). In a class action, standing is satisfied if at least one named plaintiff has standing. Bates v. United Parcel Serv., Inc. , 511 F.3d 974, 985 (9th Cir. 2007).

Art. III of the Constitution limits federal court jurisdiction to "cases" and "controversies." U.S. Parole Comm‟n v. Geraghty , 445 U.S. 388, 395, 100 S.Ct. 1202 (1980). To establish a "case" or "controversy", a plaintiff must show: (1) injury in fact, i.e., an injury that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical"; (2) causation, i.e., the injury is fairly traceable to the challenged action; and (3) likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-561, 112 S.Ct. 2130 (1992). Here, Plaintiffs seek to certify a class solely for injunctive and declaratory relief. To satisfy standing where prospective injunctive relief is sought, a plaintiff must show:

(1) that he "has suffered or is threatened with a concrete and particularized legal harm, coupled with a sufficient likelihood that he will again be wronged in a similar way"; (2) "real and immediate threat of repeated injury. Past wrongs do not in themselves amount to a real and immediate threat of injury necessary to make out a case or controversy. However, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury"; and (3) "the claimed threat of injury must be likely to be redressed by the prospective injunctive relief." Bates , 511 F.3d at 985 (internal quotations and citations omitted).

A case may become moot after it is filed "when the issues presented are no longer "live‟ or the parties lack a legally cognizable interest in the outcome." Porter v. Jones , 319 F.3d 483, 489 (9th Cir. 2003)(quoting Clark v. City of Lakewood , 259 F.3d 996, 1011 (9th Cir. 2001)). The question of mootness focuses on whether a court can still grant relief between the parties. Dream Palace v. County of Maricopa , 384 F.3d 990, 999-1000 (9 Cir. 2004). Certain claims that are "capable of repetition, yet evading review" can survive a mootness challenge. Padilla v. Lever , 463 F.3d 1046, 1049 (9th Cir. 2006). This exception permits actions "for prospective relief to go forward despite abatement of the underlying injury only in exceptional situations . . . where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and

(2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Wolfson v. Brammar , 616 F.3d 1045, 1053-1054 (9th Cir. 2010)(quoting Lewis v. Cont‟l Bank Corp. , 494 U.S. 474, 481, 110 S.Ct. 1249 (1990)).

In the class action context, there must be a named plaintiff who has standing at the time a complaint is filed and at the time the class action is certified pursuant to Rule 23. Sosna v. Iowa , 419 U.S. 393, 402, 393 S.Ct. 553 (1975). Mootness can be avoided through certification of a class prior to expiration of the named plaintiff‟s personal claim. Geraghty , 445 U.S. at 398. If a named plaintiff has standing at the time a class is certified but his or her claim later becomes moot, the remaining class members will retain standing if an identifiable class member has standing. See Bates, 511 F.3d at 987-988; Sosna , 419 U.S. 399. If a controversy becomes moot before the court can "reasonably be expected to rule on a certification motion . . . whether the certification can be said to "relate ...

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