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Preston Avery, et al v. County of Santa Clara

September 12, 2012

PRESTON AVERY, ET AL., PLAINTIFFS,
v.
COUNTY OF SANTA CLARA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

For the Northern District of California United States District Court

ORDER SOLICITING SUPPLEMENTAL BRIEFING, SOLICITING AN AFFADAVIT SUPPORTING DEFENDANTS' REQUEST FOR 14 JUDICIAL NOTICE, AND CONTINUING MOTION HEARING 15 AND CASE MANAGEMENT ) CONFERENCE

Plaintiff's Motion for Summary Judgment is currently set for hearing on September 13, 2012 at 1:30 p.m. See ECF No. 27. A case management conference is scheduled for the same 19 date. Having reviewed the moving papers, the Court finds that it is appropriate to solicit further 20 briefing on several topics. In light of the need for supplemental briefing, the Court hereby 21 CONTINUES the September 13, 2012 hearing on Defendants' Motion for Summary Judgment and 22 case management conference to September 27, 2012 at 1:30 p.m. 23

As an initial matter, the Court finds that further briefing is required regarding the total 24 amount of the accumulated fines and whether those fines are continuing to accumulate. Plaintiffs 25 contend that the administrative fines imposed by the County have continued to accrue since the 26

Superior Court entered its judgment in February 2010, and that the fines now total more than $1.2 27 28 million. See ECF No. 33 ("Opposition") at 1; Declaration of Preston Avery in Opposition to 2 Motion for Summary Judgment, ECF No. 35 ("Avery Declaration"), ¶ 32. However, in his 3 declaration, Plaintiff Preston Avery states that the "the accumulated material [was] removed from 4 my property" by mid-April 2010; thus suggesting the violations have been abated. Avery Decl., ¶ 5 28. If this is the case, the Court would like to know why Mr. Avery contends the fines have 6 continued to accumulate. Defendants' briefs do not address the total amount of the accumulated 7 fines, nor do Defendants state whether they contend that the fines are continuing to accumulate. 8

The Court also requests supplemental briefing regarding whether the total amount of the 10 accumulated fines is relevant in determining whether the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion) apply in this case. With respect to claim 12 preclusion, the Court notes that when the Superior Court entered its judgment on February 22, 13 2010 ("Superior Court Judgment"), the fines would have been approximately $74,800. However, 14 now the fines allegedly total more than $1.2 million. The Court finds that the parties have not 15 addressed the issue of whether, given the purported increase in the total amount of the accumulated 16 fines, Plaintiffs' 'claim' is the same now as it was when the Superior Court rendered its judgment. 17

Similarly, the Court finds that the parties have not adequately addressed the issue of whether, in 18 light of the increased amount of the accrued fines, Plaintiffs are precluded from arguing that the 19 fines constitute an excessive fine and a taking under the United States and California Constitutions. 20

The Court additionally finds supplemental briefing is necessary regarding the issue of 21 whether a fine may be unconstitutional under the Eighth Amendment as applied to Plaintiffs, even 22 though it is not unconstitutional on its face. The case cited by Plaintiffs, United States v. 23

Accordingly, the Court concludes that supplemental briefing is warranted as to this topic. 9

Bajakajian, 524 U.S. 321 (1998), does not distinguish between 'as applied' and 'facial' challenges 24 to the constitutionality of a fine under the Eighth Amendment. To the extent Plaintiffs have 25 authority for the proposition that a statute imposing a fine may be constitutional on its face, but 26 unconstitutional as applied to a particular individual, Plaintiffs are directed to provide citations for 27 such authority. To the extent Defendants have authority for the opposite proposition, Defendants 28 are directed to provide it. The parties should focus on cases discussing the Eighth Amendment of 2 the United States Constitution, as opposed to cases that focus on the corresponding provisions of 3 the California Constitution. 4

5 whether the Superior Court's Judgment is invalid. Plaintiff contends that the Superior Court 6 Judgment is invalid because: (1) the case was filed as a limited civil case, and (2) while the case 7 was pending, the amount in controversy grew beyond the $25,000 jurisdictional limit for limited 8 civil cases. See Opposition at 14-16. Plaintiffs have not, however, cited any cases in which the 9 Finally, the Court finds that the parties have failed to adequately address the issue of Court held that a Superior Court (which the Court notes has general, subject matter jurisdiction 10 over both limited and unlimited civil cases) was divested of jurisdiction because the amount in controversy in a case originally categorized as a limited jurisdiction case grew to more than 12 $25,000 while the case was pending (especially whereas here, the amount grew beyond the 13 jurisdictional limit as a result of Plaintiffs' own failure to pay the accruing fines). Defendants also 14 have not cited any authority for the opposite conclusion. Accordingly, the Court concludes that 15 supplemental briefing is warranted as to this topic as well. 16

17 parties shall file their supplemental briefing no later than September 18, 2012. Each party is 18 limited to three (3) pages for its supplemental briefing. In their supplemental briefing, the parties 19 shall address the following topics: 20 amount was calculated;

2. Whether Plaintiffs have abated any or all of the violations supporting the fines, including when each violation was abated;

3. To the extent the total amount of the accumulated fines now exceeds the amount that was at issue when the Superior Court Judgment was entered, whether this fact precludes the application of the ...


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