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Morrow v. City of San Diego

United States District Court, Ninth Circuit

December 4, 2013

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; [Dkt. and DOES 1-100, Defendants.

ORDER DENYING PLAINTIFFS' MOTION TO AMEND; DENYING PLAINTIFFS' MOTION TO SUBSTITUTE PARTY DOE 1, DOE 2, AND DOE 3; AND DENYING PLAINTIFFS' MOTION FOR SANCTIONS WITHOUT PREJUDICE [Nos. 80, 84, 95.]

GONZALO P. CURIEL, District Judge

Before the Court is Plaintiffs Floyd and Marlene Morrow's motion for leave to file a sixth amended complaint. (Dkt. No. 80.) Plaintiffs also filed a motion to substitute Doe Defendants 1, 2 and 3 and a motion for sanctions pursuant to 28 U.S.C. § 1927. (Dkt. Nos. 84, 95.) Oppositions were filed by Defendant City of San Diego. (Dkt. Nos. 90, 91, 97.) An opposition was also filed by proposed Defendants University of San Diego and A. Michael Cutri. (Dkt. No. 87.) Plaintiffs filed replies. (Dkt. Nos. 92, [1] 93, 94, 98.[2]) The motions are submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). After a review of the briefs, supporting documentation, and the applicable law, the Court DENIES Plaintiffs' motion to amend and motion to substitute Doe Defendants. The Court also DENIES Plaintiffs' motion for sanctions.

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 XXX-XXX-XX ("APN-06"). Since 2006, Plaintiffs have resided in one of the duplex units and have rented the other unit out to tenants. Plaintiffs also own property to the north of APN-06, known as Assessor's Parcel Number XXX-XXX-XX ("APN-11"). On June 3 and June 4, 2010, the City issued a Civil Penalty Notice and Orders (CPNOs) for land use violations existing on both APN-6 and APN-11. As a result, on February 15, 2011, the Administrative Hearing Officer issued a Civil Penalty Administrative Enforcement Order (CPAEO) assessing penalties of $2, 250.00; $9, 000.00; $6, 750.00; $15, 750.00; $2, 303.32 and requiring Plaintiffs to "develop" their property. The amounts levied included penalties and administrative costs. (Dkt. No. 69-14, Dickerson Decl., Ex. 12, Fifth Am. Compl. ¶ 54, 55.)

On March 28, 2011, Plaintiffs filed their original complaint/petition in the San Diego Superior Court with case no. 37-3011-00088456-CU-EL-CTL. (Dkt. No. 1-1.) On July 6, 2011, the City removed the case to this Court. (Dkt. No. 1.) After removal, Plaintiffs filed a second amended complaint to conform to the federal pleading requirements. (Dkt. No. 7.) On October 18, 2011, the Court granted Defendant's motion to dismiss the second amended complaint and granted Plaintiffs leave to amend. (Dkt. No. 20.) Plaintiffs filed a third amended complaint on November 4, 2011. (Dkt. No. 22.) On January 11, 2012, this Court granted in part and denied in part the City's motion to dismiss the third amended complaint. (Dkt. No. 30.) On May 11, 2012, Plaintiffs filed a motion for leave to file a fourth amended complaint. (Dkt. No. 40.) On July 6, 2012, the Court granted in part and denied in part Plaintiffs' motion for leave to file a fourth amended complaint. (Doc. 46.) Plaintiffs filed the fourth amended complaint on July 9, 2012. (Dkt. No. 47.)

On August 8, 2012, the City filed a motion for abstention. (Dkt. No. 51.) On September 25, 2012, the District Court denied the City's motion for abstention on the basis of the Younger doctrine but granted the City's motion for abstention on the basis of the Pullman doctrine and remanded the case to the Superior Court for the State of California, County of San Diego. (Dkt. No. 61.) The Court indicated it would retain jurisdiction if Plaintiffs made an England reservation pursuant to England v. Louisiana State Board of Medical Examiners , 375 U.S. 411, 421 (1964), preserving their right to return to federal district court to adjudicate federal questions. On November 8, 2012, Plaintiffs preserved their right to federal district court adjudication of all federal questions by making their England reservation. (Dkt. No. 69-13.)

On December 7, 2012, the state court ordered Plaintiffs to file an amended complaint that conformed to this Court's rulings, and Plaintiffs filed their fifth amended complaint[3] on December 14, 2012. (Dkt. No. 69-14.)

On February 1, 2013, the state court set a hearing on Plaintiffs' California Code of Civil Procedure ("CCP") section 1094.5 petition for writ of administrative mandamus ("1094.5 Writ") and Plaintiffs' CCP section 1102 petition for writ of prohibition ("1102 Writ") challenging the Order issued by the Administrative Hearing Officer on February 15, 2011. (Dkt. No. 69-4 at 8-10.) The state court denied the 1102 Writ, but granted the 1094.5 Writ. The state court found that there were newly asserted code violations that were not contained in the June 3 and June 4, 2010 Civil Penalty Notices and Orders and were not subject to any Civil Penalty Notice and Order. (Dkt. No. 69-4, Dickerson Decl., Ex. 2 at 9-10.) Therefore, "the City did not proceed according to law and there was not a fair trial as to those issues and the findings are not supported by substantial evidence." ( Id. at 10.) Accordingly, the Court concluded that "plaintiffs shall have judgment directing that a writ of mandate issue remanding for further proceedings regarding the newly asserted violations and a reassessment of the penalties consistent with this ruling. The remaining causes of action asserted by plaintiffs are stayed until the administrative proceeding is completed." (Id.) On March 5, 2013, a Peremptory Writ of Mandate and an Interlocutory Judgment were filed which directed the City to set aside its February 15, 2011, Civil Penalty and Administrative Enforcement Order and within 60 days, the City is directed to reconsider the case regarding the newly asserted violations not made part of the June 3 or 4, 2010 Civil Penalty Notice and Order and reassess any penalties in a manner consistent with the court's ruling. (Dkt. No. 69-4.) The Interlocutory Judgment only addressed the fifth cause of action in the second amended complaint for writ of prohibition under section 1102 and sixth cause of action for writ of mandamus pursuant to section 1094.5.

On April 26, 2013, Plaintiffs returned to federal court and filed an ex parte request for an alternative writ and/or temporary restraining order in this Court. (Dkt. No. 69.) On April 30, 2013, the Court denied the Plaintiffs' ex parte application for alternative writ and/or temporary restraining order and set a hearing date on the motion for preliminary injunction. (Dkt. No. 71.)

Meanwhile, in the state court proceeding, on May 1, 2013 and May 28, 2013, the City held additional administrative proceedings via a contract executed by the City Council with the University of San Diego. (Dkt. No. 84-8, Dickenson Decl., Ex. 6 at 5.) The City formally withdrew its three additional allegations and associated penalties for the three additional violations not included in the June 3 and 4, 2010 CPNO. On June 14, 2013, Administrative Hearing Officer A. Michael Cutri, based on the City's withdrawal of the additional allegations as to APN-06, assessed no civil penalties on Parcel APN-06. ( Id. at 8.) However, civil penalties of $22, 500 that were assessed on February 15, 2011 pertaining solely to parcel APN-11 remain in effect. ( Id. at 8.) The Hearing Officer indicated that his jurisdiction was limited by the March 5, 2013 Peremptory Writ of Mandate which remanded the matter to consider the "newly asserted violations" pertaining to parcel APN-06 and related penalties. (Id.) Therefore, he stated that he lacked jurisdiction to reconsider or modify the civil penalties on parcel APN-11 that were assessed in the February 15, 2011 Administrative Order. (Id.) On June 24, 2013, the City filed a letter confirming the hearing officer's findings, and on June 26, 2013 the City filed a notice of compliance with peremptory writ of mandate. (Dkt. No. 84-7; 84-8.)

On May 31, 2013, this Court denied Plaintiffs' motion for preliminary injunction and denied without prejudice motion to reset trial and related dates as it was not clear whether the Superior Court had resolved the state law claims. (Dkt. No. 77.)

On July 12, 2013, Plaintiffs attempted to file an appeal pursuant to California Government Code section 53069.4 in state court. (Dkt. No. 90-2, Brock Decl., Ex. B, Reporter's Transcript of hearing held on Oct. 4, 2013 in the San Diego Superior Court case no. 37-3011-00088456-CU-EL-CTL at 18.) For some reason, the appeal never got filed. (Id.) Because it was not filed, Plaintiffs on September 13, 2013 filed another case: petition for writ of mandamus pursuant to CCP §§ 1085 and 1094.5 and ex parte application for alternative writ, and/or request for immediate stay by September 23, 2013 in case no. 37-2013-00067168-CU-MW-CTL. (Id.; Dkt. No. 90-2, Brock Decl., Ex. C.)

On August 25, 2013, Plaintiffs again returned to this Court and filed the instant motion to amend seeking leave to file a sixth amended complaint. (Dkt. No. 80.) On September 10, 2013, the case was transferred to the undersigned judge. (Dkt. No. 82.) On September 20, 2013, Plaintiffs filed a motion to substitute Doe Defendants. ...


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