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Morrow v. City of San Diego

United States District Court, S.D. California

June 5, 2017

FLOYD L. MORROW, et al., Plaintiffs,
CITY OF SAN DIEGO, et al., Defendants.


          Hon. Cynthia Bashant United States District Judge

         Plaintiffs 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). //


         A. Request for Judicial Notice

         As a 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. 144-1.)

         A court 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.

         B. Allegations of Proactive Enforcement

         In the 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. ¶ 89.)

         Plaintiffs 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.)

         C. Plaintiffs' Code Violations

         Although 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. ¶ 1.)

         On 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. ¶10-2.)[1]

         Because 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 ¶ 29.)

         According 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 ...

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