The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Presently before the court is Defendant City of Los Angeles' Motion to Dismiss Plaintiffs' Remaining Claims for Lack of Standing and Mootness ("Motion"). Having reviewed the parties' moving papers and heard oral argument, the court grants the Motion and adopts the following Order.
Plaintiffs Michael Hunt ("Hunt") and Matthew Dowd ("Dowd") (collectively, "Plaintiffs") filed this action against Defendant City of Los Angeles ("City") on July 27, 2006, challenging the constitutionality of various Los Angeles Municipal Code ("LAMC") sections that are no longer in effect. The challenged ordinances included two versions of LAMC § 42.15, as well as LAMC § 63.44.
On January 14, 2009, the court issued an order ("Order") granting in part and denying in part Plaintiffs' and Defendant's Cross-Motions for Summary Judgment. Relevant here, the court held that the 2004 version of § 42.15 was unconstitutionally vague. The court also expressly declined to address § 63.44 in the Order, because Plaintiffs had asserted at oral argument that "their suit center[ed] on" and they were "primarily challenging the two versions of § 42.15." Hunt v. City of Los Angeles, 601 F. Supp. 2d 1158, 1160-61, 1161 n.1 (C.D. Cal. 2009). The parties then proceeded to a jury trial on damages, in February 2009. The jury returned a verdict in favor of Hunt for $264,286, and judgment was entered on April 23, 2009.
In May 2009, the City appealed, and Plaintiffs cross-appealed, the judgment to the Ninth Circuit. On March 22, 2011, the Ninth Circuit issued an opinion affirming this court's findings as to § 42.15. The Circuit found, however, that Plaintiffs' assertions at summary judgment did not establish an abandonment of their claims as to § 63.44. The Circuit therefore remanded for this court to address § 63.44 in the first instance. See Hunt v. City of Los Angeles, 638 F.3d 703, 718-19 (9th Cir. 2011).
On November 14, 2011, this court held a hearing on the remand order, and provided the City until January 13, 2012 to file a motion as to standing. The City filed this Motion, asking the court to dismiss Plaintiffs' § 63.44 claims for lack of standing and mootness. Plaintiff Dowd has since stipulated that all issues in this case pertaining to him were resolved by the Ninth Circuit's decision. Plaintiff Hunt opposes the City's Motion, but agrees that his only potential claim under § 63.44 is for damages, since the ordinance was repealed in 2005 - before this action was filed.
Based on the complete record, the court concludes that Plaintiffs voluntarily abandoned any claim for damages under § 63.44 after the summary judgment proceedings. Contrary to Plaintiff Hunt's contentions, the court never made any finding or ruling as to abandonment. Therefore, nothing precluded Plaintiffs from bringing their § 63.44 claims before the jury. Plaintiffs, however, failed to do so. Having elected not to proceed with these claims, Plaintiffs cannot now revive them by demanding a second trial - which would impermissibly allow Plaintiffs to split their claims and seek overlapping damages.
To elaborate, the court made no finding or ruling as to abandonment in its Order on summary judgment. Instead, the court simply declined to address § 63.44 in that Order, based on Plaintiffs' representations. See Hunt, 601 F. Supp. 2d at 1161 n.1 ("[A]t oral argument, Plaintiffs explained that they are primarily challenging the two versions of § 42.15. Accordingly, this Order does not address § 63.44." (emphasis added)); see also id. at 1160-61 ("Because Plaintiffs agreed at oral argument that their suit centers on two versions of § 42.15, the Court does not address the challenged provisions of LAMC 63.44(B)." (emphasis added)).
Nor did the court make any finding or ruling as to abandonment at the summary judgment hearing. During oral argument, Plaintiffs stated that they were arrested under § 42.15, but threatened under both § 42.15 and § 63.44. In response, the court stated that it would need to review the sufficiency of Plaintiffs' declarations as to the alleged threats. Plaintiffs then insisted, however, that the focus of the case was really § 42.15. Plaintiffs therefore asked the court to instead move forward and rule on § 42.15, so Plaintiffs could proceed with a jury trial on damages. The court did not comment on Plaintiffs' representations, beyond confirming them with Plaintiffs.*fn1
Because the court did not resolve Plaintiffs' § 63.44 claims on summary judgment, the claims obviously remained in the case for subsequent motions or trial. Plaintiffs, however, never asked the court to address § 63.44 - whether through a second motion for summary judgment, motion for a ruling, or motion to reconsider. Nor did Plaintiffs raise § 63.44 in any manner during their jury trial. Rather, the jury instructions and verdict form - prepared jointly by the parties - addressed only a single ordinance: the 2004 version of § 42.15. (See, e.g., Docket No. 173: Rep.'s Tr. of Jury Trial Proceedings, Feb. 4, 2009 ("Trial Tr."), at 33-45 ("To help you follow the evidence, I will give you a brief summary of the positions of the parties. In this case, plaintiff Michael Hunt challenged a 2004 Los Angeles City Ordinance which regulated vending on the Venice Beach Boardwalk."). Likewise, Plaintiffs repeatedly clarified during witness examination and at closing argument that the case involved only § 42.15, and that all of Plaintiffs' damages arose from that section. (See, e.g., Trial Tr. at 77 ("Everything that happened that has been a function of the damage suffered by Mr. Hunt arose out of the Ordinance 4215 [sic] which the Court has found to be unconstitutionally vague.").
In sum, because the court never made any finding or ruling as to abandonment, Plaintiffs had every opportunity to proceed with the § 63.44 claims alleged in their Complaint. The record establishes that Plaintiffs elected not to proceed with these claims, and instead went forward with a full jury trial where they addressed only § 42.15. It was therefore entirely Plaintiffs' decision - not the court's - to abandon their § 63.44 claims. Further, to allow Plaintiffs to now move forward with a claim for damages under § 63.44 would constitute impermissible claim splitting. Relatedly, Plaintiffs' prior evidence to the jury on the arrests and other harm suffered did not distinguish at all between the various LAMC sections. A second damages award -following a second ...