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Floyd L. Morrow and Marlene Morrow, As v. City of San Diego

September 25, 2012

FLOYD L. MORROW AND MARLENE MORROW, AS TAXPAYERS OF THE CITY OF SAN DIEGO, STATE OF CALIFORNIA, AND ON BEHALF OF THOSE SIMILARLY SITUATED,
PLAINTIFFS,
v.
CITY OF SAN DIEGO, A CHARTER CITY; AND DOES 1-100, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR ABSTENTION [Doc. No. 51]

Presently before the Court is Defendant City of San Diego ("Defendant" or "City")'s motion for abstention requesting the Court to abstain from adjudicating the claims of Plaintiffs Floyd and Marlene Morrow ("Plaintiffs"). In the alternative, Defendant asks the Court to exercise its discretion and stay the pending federal claim upon state court resolution of the state claims. [Doc. No. 51.] For the following reasons, the Court GRANTS the City's motion for abstention and REMANDS the action to the California Superior Court in the County of San Diego.

BACKGROUND

Plaintiffs are a married couple and landowners in the City Heights community of the City of San Diego. Plaintiffs are the owners of a duplex commonly known as 2804 and 2806 46th Street, San Diego, CA 92105, Assessor's Parcel Number 476-392-06 ("APN-06"). Since 2006, Plaintiffs have resided in one of the duplex units and have rented the other unit out to tenants. [Doc. No. 47, Fourth Amended Compl. ¶ 11.] Plaintiffs also own property to the north of APN-06, known as Assessor's Parcel Number 476-392-11 ("APN-11"). [Id. ¶ 12.]

Plaintiffs allege that on or about January 21, 2009, Defendant opened a "code enforcement" case with respect to APN-11 "proactively," rather than by responding to a citizen complaint, to "target blight." This investigation was later expanded to include APN-06. [Id. ¶ 30.] On June 3, 2010, the City issued a Civil Penalty Notice and Order ("the June 3, 2010 Notice") with respect to APN-06, and, on June 4, 2010, the City issued a Civil Penalty Notice and Order ("the June 4, 2010 Notice") with respect to APN-11. [Doc. No. 47, Fourth Amended Compl. ¶¶ 32-33; Doc. No. 24-2, Request for Judicial Notice ("RJN"), Exs. D, E.] The notices stated that APN-06 and APN-11 were in violation of various sections of the San Diego Municipal Code and that Plaintiffs were subject to civil penalties for the violations. [Id.] The notices ordered Plaintiffs to correct the violations by July 5, 2010 and July 6, 2010, respectively, and stated that failure to comply may result in a civil penalty hearing and the assessment of civil penalties against them. [Id.] Plaintiffs allege that due to difficulties with the mail, they did not receive the notices until weeks after they were issued and with only a few days left to comply. [Doc. No. 47, Fourth Amended Compl. ¶¶ 32-34.]

A civil penalty hearing against Plaintiffs with respect to these violations commenced on October 14, 2010, and continued on October 21, 2010, November 15, 2010, and November 30, 2010. [Id. ¶ 38; RJN, Ex. A ("Admin. Order").] Plaintiffs were present at all the hearings and presented evidence on their behalf including testimony, written comments, and supporting factual materials. [Doc. No. 47, Fourth Amended Compl. ¶¶ 38, 57.] Plaintiffs allege that after the hearings, on December 23, 2010, the City provided an additional list that contained new violations ("Remaining Violations List"). [Id. ¶¶ 39-52.] Plaintiffs allege that they were able to respond to the Remaining Violations List, but that they were not able to cross-examine the City's witnesses about the demands and violations contained on the list. [Id. ¶ 44, 53.] Plaintiffs also allege that they were unable to correct the purported violations prior to being punished. [Id. ¶ 44.]

On February 15, 2011, the administrative hearing officer, Mandel E. Himelstein, issued an administrative enforcement order ("the Administrative Order"). [Id. ¶ 54; Admin. Order.] The Administrative Order found that Plaintiffs had violated the sections of the San Diego Municipal Code listed in the June 3, 2010 Notice and the June 4, 2010 Notice and that Plaintiffs had not complied with the notices. [Admin. Order, Findings of Fact ¶¶ 2-3.] The Administrative Order ordered Plaintiffs to pay (1) $2,250 in civil penalties with a stay of $9,000 pending compliance with the order for the violations related to APN-06; (2) $6,750 in civil penalties with a stay of $15,750 pending compliance with the order for the violations related to APN-11; and (3) $2,303.32 in administrative costs. [Doc. No. 47, Fourth Amended Compl. ¶ 55; Admin. Order, Order ¶¶ 1-2.] Plaintiffs allege that the City subsequently invoiced them in the amount of (1) $2,303.32 due March 30, 2011; (2) $2,250 due April 15, 2011; and (3) $6,750 due May 1, 2011. [Doc. No. 47, Fourth Amended Compl. ¶ 56.]

On March 28, 2011, Plaintiffs filed a complaint in state court against Defendants City of San Diego and Mandel E. Himelstein, the hearing officer. [Doc. No. 1-1, Compl.] On July 1, 2011, Defendants removed the action to this Court on the basis of federal question jurisdiction and supplemental jurisdiction. [Doc. No. 1, Notice of Removal.] On October 7, 2011, the Court dismissed Defendant Mandel E. Himelstein from the action, leaving the City as the only Defendant. [Doc. No. 19.] On October 18, 2011, the Court granted the City's motion to dismiss Plaintiffs' second amended complaint and granted Plaintiffs leave to file a third amended complaint. [Doc. No. 20.] On January 11, 2012, the Court granted in part and denied in part the City's motion to dismiss Plaintiffs' third amended complaint.

Plaintiffs filed a fourth amended complaint on July 9, 2012 alleging five causes of action: (1) waste of taxpayer funds; (2) violation of 42 U.S.C. § 1983 under the Equal Protection Clause of the U.S. Constitution; (3) a writ of mandate to enjoin and stay the Administrative Order and for damages; (4) a writ of prohibition to enjoin and stay the Administrative Order and for damages; (5) a writ of administrative mandamus to enjoin and stay the Administrative Order and for damages. [Doc. No. 47, Fourth Amended Compl.] Plaintiffs' sole federal claim is their second cause of action brought under § 1983 alleging violations of the Equal Protection Clause of the U.S. Constitution.

By the present motion, Defendant requests that the Court abstain under the Younger and Pullman abstention doctrines. In the alternative, Defendant asks the Court to exercise its discretion and stay the pending federal claim upon state court resolution of the state claims. [Doc. No. 51, Def's Mot.]*fn1

DISCUSSION

I. Younger Abstention

Defendant moves for abstention on the basis of the Younger doctrine. A court must abstain under Younger and dismiss the actionif four requirements are met: "(1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding; and (4) the federal court action would enjoin the proceeding or have the practical effect of doing so, i.e., would interfere with the state proceeding in a way that Younger disapproves." San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).

Defendant is unable to satisfy the first element of Younger abstention because there is no pending state proceeding. Defendant argues that a state court proceeding is pending because this Court may decline to exercise supplemental jurisdiction over the writ of administrative mandamus claim. [Doc. No. 51, Def's Mot. at 7-8.] Defendant's argument lacks merit ...


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