United States District Court, S.D. California
FLOYD L. MORROW, et al., Plaintiffs,
CITY OF SAN DIEGO, et al., Defendants.
ORDER DENYING MOTION TO CERTIFY CLASS [ECF NO.
Cynthia Bashant United States District Judge
move to certify a class of “all persons subjected to
the CDBG Proactive Code Enforcement Project (the
Project).” (ECF No. 143.) The City of San Diego
(“the City”) opposes, arguing the Plaintiffs were
not subjected to the Project and are thus not members of the
proposed class. (ECF No. 144.) Because the Court finds the
named Plaintiffs' claims are not “typical” of
the proposed class and the representation lacks
“adequacy, ” the Court DENIES Plaintiffs'
Motion for Class Certification (ECF No. 143). //
STATEMENT OF FACTS
Request for Judicial Notice
preliminary matter, Plaintiffs request that the Court take
judicial notice of: (1) what purports to be a deposition
transcript of Robert Vacchi, (2) several San Diego Municipal
Code sections, (3) a pleading labelled “Defendant City
of San Diego's Amended Response to Plaintiff Floyd
Morrow's Interrogatories (Set One), ” and (4)
memoranda that purport to be from the Deputy Director of the
Neighborhood Code Compliance Division to the Community
Development Block Grant Coordinator from 2010 and 2011. (ECF
No. 143-2.) The City objects to the first and the last of
these items as improper subjects of judicial notice. (ECF No.
may take judicial notice of “a fact that is not subject
to reasonable dispute because it: (1) is generally known
within the trial court's territorial jurisdiction; or (2)
can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed.R.Evid.
201(b). Although the submitted deposition and memoranda are
ultimately non-dispositive of the Court's ruling in this
Order, the Court agrees that the requested items are not
proper subjects of judicial notice. Thus, the Request for
Judicial Notice is DENIED.
Allegations of Proactive Enforcement
Fourth Amended Complaint (“4AC”), which is the
operative Complaint in this case, Plaintiffs allege that on
November 5, 2009, a Memorandum of Understanding
(“MOU”) was reached between the Economic
Development Division's Community Development Block Grant
(“CDBG”) Program and the Neighborhood Code
Compliance Division (“NCCD”) in San Diego. (4AC
¶ 29, ECF No. 47.) “The City purports to be
authorized and empowered [by this MOU] to ‘target
blight in certain areas' of the City, including City
Heights and other low to moderate income areas, by seeking
out and prosecuting property owners and residents in those
certain areas.” (Id.) Plaintiffs allege that
the City prosecutes only residents in low to moderate income
neighborhoods pursuant to the City's “CDBG
Proactive Code Enforcement Project” (Id.
claim that throughout the City of San Diego, Defendants
typically only investigate and prosecute code violations
“reactively, ” but with respect to certain census
tracts only, Defendants investigate and prosecute these code
violations “proactively.” (4AC ¶ 97.)
“By targeting residents for ‘proactive'
enforcement only in certain census tracts, Defendants have
denied Plaintiffs and all the members of the putative [class]
equal protection of the laws.” (Id.)
Plaintiffs' Code Violations
Plaintiffs allege that they “are members of [the
putative class] and were, like all [class] members,
discriminated against and arbitrarily classified based on
wealth” (4AC ¶ 98), the City submits a Declaration
of Michael Richmond that states to the contrary. (ECF No.
144-2 (“Richmond Decl.”).) According to Mr.
Richmond, he is currently the Deputy Director for the Code
Enforcement Division for the City of San Diego, and he was
previously the Zoning Investigator for grading violations and
environmentally sensitive lands in San Diego. (Id.
August 1, 2007, well before any MOU ostensibly targeting low
income neighborhoods for blight was signed, Mr. Richmond
states he noticed a grading violation on Plaintiffs' lot.
(Richmond Decl. ¶ 2.) He took photographs of what he
perceived to be illegal grading. (Id. ¶ 6, Exs.
A & B, ECF No. 144-3.) He then referred the grading
violations he observed to the City's NCCD for further
investigation and enforcement. (Richmond Decl.
of heavy case loads, a zoning investigator was not assigned
to this reported violation until January 2009. (Richmond
Decl. ¶ 11-2.) However, this time too was well before
any proactive enforcement of blight through the CDBG and NCCD
MOU, which was allegedly signed in November 2009. (4AC ¶
to Mr. Richmond, “[i]dentification of grading
violations in 2009 were not, and never have been, considered
part of a ‘proactive code enforcement'
program.” (Richmond Decl. ¶ 10.) This is true
whether or not the grading violation was or was not in an
area that was eventually funded by CDBG revenue for
“proactive enforcement.” (Id. ¶
11.) Furthermore, Mr. Richmond states, “[a]t no time
during my employment as a Zoning Investigator and grading
expert was my position considered a ‘proactive'
code enforcement ...