Hawecker et al v. Sorensen, No. 1:2010cv00085 - Document 58 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION DENYING plaintiff's Motion for Class Certification, document 22 ; defendant to submit proposed order consistent with this memorandum decision within five days of electronic service; order signed by Judge Oliver W. Wanger on 1/12/2011. (Rooney, M)

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1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 5 6 CARRIE HAWECKER and 1:10-cv-00085 OWW JLT 7 MICHELLE BROUSSARD, MEMORANDUM DECISION RE PLAINTIFF S MOTION FOR CLASS CERTIFICATION (DOC. 22). 8 9 10 Plaintiff, v. RAWLAND LEON SORENSEN, 11 Defendant. 12 13 I. INTRODUCTION 14 This case involves allegations of sexual harassment and sex 15 16 17 discrimination in violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., and related state laws. Plaintiffs move to certify a class action under Fed. R. Civ. 18 19 P. 23(a) and 23(b)(2). Doc. 22. Defendant filed an opposition 20 (Doc. 33), to which Plaintiffs replied (Doc. 38). 21 II. FACTUAL BACKGROUND 22 Defendant owns and operates over 50 properties, mostly 23 24 25 26 single family homes, in Bakersfield, California. Defendant manages the properties, collects rent, and performs evictions. Named Plaintiffs are Defendant s former tenants.1 27 1 28 The complaint alleges that Plaintiffs were living in Defendant s properties when the lawsuit was filed. 1 1 2 3 4 On January 15, 2010, Plaintiffs filed a complaint against Defendant. Plaintiffs assert claims under the FHA, California Fair Employment and Housing Act, California Unruh Civil Rights Act, California Business and Professions Code, and California 5 6 7 Code of Civil Procedure. Plaintiffs allege that Defendant has a continuous pattern or practice of discrimination and harassment 8 against women in the ownership and operation of rental 9 properties, including: (1) making offensive statements to female 10 tenants about their bodies; (2) asking female tenants to pose 11 nude in exchange for rent reductions or rent workout agreements; 12 13 14 15 16 (3) touching female tenants bodies; (4) proposing that female tenants engage in sexual activities in exchange for rent reduction; and (5) using the threat of filing, filing, or agreeing to dismiss, unlawful detainer actions to coerce female 17 tenants into sexual activities. Plaintiffs seek (1) individual 18 compensatory and punitive damages and (2) injunctive and 19 declaratory relief on behalf of themselves and past, current and 20 21 future female tenants of Defendant. Defendant filed an answer February 22, 2010. 22 23 24 25 26 27 28 Plaintiffs now move for class certification for purposes of injunctive and declaratory relief. Specifically, they seek to certify a class defined as: All women who, since January 1, 1995, have resided in a rental unit owned or operated by Rawland Leon Sorensen, including future female tenants. 2 1 Plaintiffs also seek to have their counsel appointed as class 2 counsel. Defendants filed an opposition (Doc. 33), and Plaintiffs 3 4 filed a reply (Doc. 38). III. LEGAL STANDARD 5 6 7 A class action “may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of 8 Rule 23(a) have been satisfied.” Gen. Tel. Co. of Sw v. Falcon, 9 457 U.S. 147, 161, 102 S.Ct. 2364 (1982). The four requirements 10 of Rule 23(a) are: (1) the class must be so numerous that joinder 11 of all members is impracticable; (2) there must be questions of 12 13 14 15 16 17 law or fact common to the class; (3) the claims of the class representatives must be typical of the claims of the class; and (4) the class representatives must fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). In addition to satisfying Rule 23(a), a proposed class must 18 also fit within one of three categories in Rule 23(b). Here, 19 Plaintiffs seek certification under Rule 23(b)(2). Class 20 21 certification under Rule 23(b)(2) may be maintained if “the party opposing the class has acted or refused to act on grounds that 22 23 24 25 apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). 26 27 28 3 1 The party seeking class certification has the burden of 2 demonstrating that all the requirements of Rule 23(a) and at 3 4 least one requirement of Rule 23(b) are met. Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 580 (9th Cir. 2010). 5 6 7 District courts have broad discretion to determine whether to certify a class, and may revisit certification throughout the 8 proceeding. Armstrong v. Davis, 275 F.3d 849, 872 n.28 (9th Cir. 9 2001). In deciding class certification, the primary question is 10 not whether plaintiffs have stated a cause of action that will 11 prevail on the merits, but whether the party seeking 12 13 14 15 16 certification has met the requirements of Rule 23. United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int l Union, AFL-CIO v. ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010). Courts must perform a rigorous analysis to 17 ensure that Rule 23 s requirements are actually satisfied, not 18 simply presumed from the pleadings. Dukes, 603 F.3d at 581-582. 19 The analysis will often require looking behind the pleadings, 20 21 even to “issues overlapping with the merits of the underlying claims.” Id. at 581. 22 IV. DISCUSSION 23 24 25 A. Standing Neither parties address standing explicitly, but federal 26 courts are required to examine it sua sponte. D Lil v. Best W. 27 Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008). 28 4 1 Standing is the threshold issue in any lawsuit. Emp rs-Teamsters 2 Local Nos. 175 & 505 Pension Trust Fund v. Anchor Capital 3 Advisors, 498 F.3d 920, 923 (9th Cir. 2007). “If the individual 4 plaintiff lacks standing, the court need never reach the class 5 6 7 action issue.” 1 ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS 400 (4TH ed. 2002). In a class action, standing is satisfied if at 8 least one named plaintiff has standing. Bates v. United Parcel 9 Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007). 10 11 12 13 14 15 16 Art. III of the Constitution limits federal court jurisdiction to “cases” and “controversies.” U.S. Parole Comm n v. Geraghty, 445 U.S. 388, 395, 100 S.Ct. 1202 (1980). To establish a “case” or “controversy”, a plaintiff must show: (1) injury in fact, i.e., an injury that is “concrete and particularized” and “actual or imminent, not conjectural or 17 hypothetical”; (2) causation, i.e., the injury is fairly 18 traceable to the challenged action; and (3) likelihood that the 19 injury will be redressed by a favorable decision. Lujan v. 20 21 Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130 (1992). Here, Plaintiffs seek to certify a class solely for 22 23 24 injunctive and declaratory relief. To satisfy standing where prospective injunctive relief is sought, a plaintiff must show: 25 (1) that he “has suffered or is threatened with a concrete and 26 particularized legal harm, coupled with a sufficient likelihood 27 that he will again be wronged in a similar way”; (2) “real and 28 5 1 immediate threat of repeated injury. Past wrongs do not in 2 themselves amount to a real and immediate threat of injury 3 4 necessary to make out a case or controversy. However, past wrongs are evidence bearing on whether there is a real and immediate 5 6 7 threat of repeated injury”; and (3) “the claimed threat of injury must be likely to be redressed by the prospective injunctive 8 relief.” Bates, 511 F.3d at 985 (internal quotations and 9 citations omitted). 10 11 12 13 14 15 16 A case may become moot after it is filed “when the issues presented are no longer „live or the parties lack a legally cognizable interest in the outcome.” Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003)(quoting Clark v. City of Lakewood, 259 F.3d 996, 1011 (9th Cir. 2001)). The question of mootness focuses on whether a court can still grant relief between the parties. 17 Dream Palace v. County of Maricopa, 384 F.3d 990, 999-1000 (9th 18 Cir. 2004). Certain claims that are “capable of repetition, yet 19 evading review” can survive a mootness challenge. Padilla v. 20 21 Lever, 463 F.3d 1046, 1049 (9th Cir. 2006). This exception permits actions “for prospective relief to go forward despite 22 23 24 abatement of the underlying injury only in exceptional situations . . . where the following two circumstances [are] simultaneously 25 present: (1) the challenged action [is] in its duration too short 26 to be fully litigated prior to its cessation or expiration, and 27 (2) there was a reasonable expectation that the same complaining 28 6 1 party would be subjected to the same action again.” Wolfson v. 2 Brammar, 616 F.3d 1045, 1053-1054 (9th Cir. 2010)(quoting Lewis v. 3 4 Cont l Bank Corp., 494 U.S. 474, 481, 110 S.Ct. 1249 (1990)). In the class action context, there must be a named plaintiff 5 6 7 who has standing at the time a complaint is filed and at the time the class action is certified pursuant to Rule 23. Sosna v. Iowa, 8 419 U.S. 393, 402, 393 S.Ct. 553 (1975). Mootness can be avoided 9 through certification of a class prior to expiration of the named 10 plaintiff s personal claim. Geraghty, 445 U.S. at 398. If a named 11 plaintiff has standing at the time a class is certified but his 12 13 14 15 16 or her claim later becomes moot, the remaining class members will retain standing if an identifiable class member has standing. See Bates, 511 F.3d at 987-988; Sosna, 419 U.S. 399. If a controversy becomes moot before the court can “reasonably be expected to rule 17 on a certification motion . . . whether the certification can be 18 said to „relate back to the filing of the complaint may depend 19 upon the circumstances of the particular case and especially the 20 21 reality of the claim that otherwise would evade review.” Sosna, 419 U.S. at 402. 22 23 24 Here, Plaintiffs do not have standing to bring claims against Defendant solely for injunctive and declaratory relief. 25 Plaintiffs are no longer tenants of Defendant. Although 26 Plaintiffs have sufficiently alleged past concrete injuries, past 27 wrongs do not amount to real and immediate threat sufficient to 28 7 1 establish a case or controversy for purposes of prospective, 2 injunctive relief. See Bates, 511 F.3d at 985. There is no 3 4 showing of likelihood any of Plaintiffs will be Defendant s tenants in the future, and any declaratory or injunctive relief 5 6 7 will not redress their past injuries. Claims solely for declaratory and prospective injunctive relief under the Fair 8 Housing Act are rendered moot when a plaintiff moves away from 9 the property where discrimination allegedly occurred. Harris v. 10 Itzhaki, 183 F.3d 1043, 1050 (9th Cir. 1999). Moreover, the period 11 identified for alleged injuries were individually experienced by 12 13 14 15 16 each alleged victim and the statute of limitations have long expired. Because Plaintiffs do not have individual standing, they cannot represent the class. “Unless the named plaintiffs are 17 themselves entitled to seek injunctive relief, they may not 18 represent a class seeking that relief.” Hodgers-Durgin v. de la 19 Vina, 199 F.3d 1037, 1045 (9th Cir. 1999). 20 21 The facts of this case do not warrant “relating back” certification to the filing of the complaint. See Sosna, 419 U.S. 22 23 24 at 402. Plaintiffs have not made a showing that the alleged injuries are capable of repetition yet evading review. Nothing in 25 the record suggests a reasonable expectation that named 26 Plaintiffs will be subject to Defendant s harassment again or 27 that any plaintiff s tenancy would be of such limited duration 28 8 1 that it would expire before a motion for class certification 2 could be filed. Defendant s acts will not evade review if a class 3 4 is not now certified, as Plaintiffs still have a claim for damages and other members of the putative class could assert 5 6 7 damages actions. See Alvarez v. Smith, 130 S.Ct. 576, 581 (2009) (concluding that where those affected by police department s 8 alleged unlawful warrantless seizures could bring actions for 9 damages after complaint for declaratory and injunctive relief 10 became moot, the forfeitures did not evade review). 11 12 13 14 15 16 Plaintiffs cite Simpson v. Fireman s Fund Insurance Co., 231 F.R.D. 391 (N.D. Cal. 2005), a case that has no precedential effect, as an example of a terminated employee certified to represent a class that included current and future employees. Plaintiffs argue that the Simpson court certified the class 17 because the class representative still shared common issues of 18 fact and law with current employees. In Simpson, a totally 19 distinguishable case, standing was not at issue. Injunctive 20 21 relief would have redressed the named plaintiff s and current employees injuries. See Simpson, 231 F.R.D. at 395 (“In seeking 22 23 24 injunctive relief, Plaintiff is trying not only to obtain reinstatement for himself and other discharged employees, but 25 also to prevent Defendants from enforcing the amended policy in 26 the future.”). 27 28 Plaintiffs do not have standing to serve as representatives 9 1 of the proposed class. Plaintiff s motion for class certification 2 is DENIED without prejudice. Other members of the putative class 3 4 who have viable claims are free to file a motion to intervene. B. Class Definition 5 6 7 8 Plaintiffs define the proposed class as: All women who, since January 1, 1995, have resided in a rental unit owned or operated by Rawland Leon Sorensen, including future female tenants. 9 Plaintiffs contend the inclusion of all female tenants from 10 January 1, 1995 is appropriate because: (1) Defendant s first 11 unlawful detainer action was filed July 17, 1995, (2) interviews 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with former tenants did not uncover any incidents before 1995, and (3) Defendant has engaged in a pattern or practice of sexually harassing female tenants, demanding sexual favors, and creating a hostile environment since at least 1995. In Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114 (1982), the Supreme Court held: [A] “continuing violation” of the Fair Housing Act should be treated differently from one discrete act of discrimination. . . . [W]here a plaintiff, pursuant to the Fair Housing Act, challenges not just one incident of conduct violative of the Act, but an unlawful practice that continues into the limitations period, the complaint is timely filed when it is filed within [the statutory period] of the last asserted occurrence of that practice. Id. at 380-381. Following Havens, Congress codified the continuing violation doctrine in the text of the FHA. Garcia v. Brockway, 526 F.3d 456, 462 (9th Cir. 2008)(en banc); H.R. Rep. No. 100-711, 33 (1988), reprinted in 1988 U.S.C.C.A.N. 2173. 10 1 2 3 4 5 6 7 Section 813(a)(1)(A) of the FHA provides in pertinent part: [A]n aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice . . . to obtain appropriate relief with respect to such discriminatory housing practice or breach. 42 U.S.C. § 3613(a) (emphasis added). Defendant contends that class certification to 1995 is 8 improper. Defendant argues that Havens, which addressed racial 9 segregation in housing, is limited to cases which implicate an 10 “encompassing societal effect.” Doc. 33, 31. Defendant s argument 11 12 overlooks Congress s codification of Havens continuing violations doctrine into FHA § 813(a)(1)(A). FHA § 813(a)(1)(A) 13 14 15 16 does not limit the continuing violations doctrine to racial segregation or situations with an encompassing societal effect. See 42 U.S.C. § 3613(a). 17 Plaintiffs challenge an alleged pattern and practice of 18 sexual harassment and discrimination. Plaintiffs complaint, 19 filed declarations, and excerpts of eight depositions detail 20 21 22 23 Defendant s alleged continuing violations. The allegations span years and continue into the two-year period preceding the filing of this lawsuit. Under FHA § 813(a)(1)(A), the statute of 24 limitations does not begin to run until two years after the 25 termination of the discriminatory housing practice. 42 U.S.C. § 26 3613(a). The class definition could include all women who resided 27 in a rental unit owned or operated by Defendant since January 1, 28 11 1 2 3 4 1995. Plaintiffs, however, seek to certify a class only for declaratory and injunctive relief. Females who no longer lived in Defendant s properties when the complaint was filed do not have 5 6 7 standing to pursue injunctive or declaratory relief. See Dukes v. Wal-mart Stores, Inc. 603 F.3d 571, 623 (9th Cir. 2010) (“We agree 8 with Wal-Mart to this extent: those putative class members who 9 were no longer Wal-Mart employees at the time Plaintiff s 10 complaint was filed do not have standing to pursue injunctive or 11 declaratory relief”). If a class is certified solely for 12 13 14 15 16 injunctive and declaratory relief under Rule 23(b)(2), the class would be limited to female tenants who resided in Defendant s properties from the date the complaint was filed (January 15, 2010), including future tenants. See Maldonado v. Ochsner Clinic 17 Found., 493 F.3d 521, 525 (5th Cir. 2007) (holding that 18 certification of a class based on an allegation that defendant 19 acted or refused to act on grounds generally applicable to the 20 21 class, so that final injunctive or declaratory relief is appropriate, is inappropriate when the majority of the class does 22 23 24 25 not face future harm). C. Class Certification The two proposed named Plaintiffs lack standing to serve as 26 class representatives; however, their qualifications and the 27 proposed class will be examined under Rule 23. 28 12 1 2 3 4 5 1. Rule 23(a) Requirements a. Numerosity Rule 23(a)(1) requires that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity demands “examination of the specific facts 6 7 8 of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 9 L.Ed.2d 319 (1980). In determining numerosity, a court should 10 consider not only class size, but also geographic diversity of 11 the class, ability of class members to file suit separately, and 12 the nature of the underlying action and relief sought. Nat l 13 14 15 16 17 Ass n of Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal. 1986). Numerosity is in dispute. Plaintiffs allege that 27 of Defendant s over 50 homes are currently rented to single women 18 with children, and women reside in most of the other units. 19 Because the class would be limited to current and future female 20 tenants, the class size is, at a minimum, 27 to 50 individuals 21 22 and includes an unspecified number of future female tenants. The class includes Defendant s future female residents, and 23 24 25 “inclusion in the class of potentially aggrieved individuals has often been regarded as sufficient to meet Rule 23(a)(1) s 26 impracticability requirement.” CONTE & NEWBERG, supra, at 262. 27 Plaintiff class is seeking only declarative and injunctive 28 13 1 relief, and “special consideration applies to actions seeking 2 declaratory or injunctive relief against conduct that is likely 3 4 to cause future harm.” Smith v. Heckler, 595 F.Supp. 1173, 1186 (E.D. Cal. 1984). Given that the proposed class members are 5 6 7 mostly low-income single women with children, it is unlikely that many of them would have the financial resources or time to mount 8 individual lawsuits. Considering the totality of factors, joinder 9 of all members of the proposed class would be impracticable, and 10 numerosity would be satisfied. 11 12 13 14 15 16 Defendant contends the class fails numerosity because Plaintiffs have identified less than 20 women who have actual complaints against Defendant. Membership in a class, however, is not limited to identified individuals. Williams v. City of Antioch, 2010 WL 3632197, 7 (N.D. Cal. 2010) (“[M]embership in a 17 class is not limited to those individuals who affirmatively 18 express a desire to join the class, nor is it a test for 19 numerosity”). Plaintiffs are not required to allege the exact 20 21 number or identity of all class members. Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994). This 22 23 24 25 factor is disputed. b. Commonality Rule 23(a)(2) requires that “there are questions of law or 26 fact common to the class.” Rule 23(a)(2) has been construed 27 permissively; all questions of law and fact do not need to be 28 14 1 common. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 2 1998). The test for meeting commonality is qualitative rather 3 4 5 6 7 than quantitative; one significant issue common to the class may be sufficient. Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 599 (9th Cir. 2010). Commonality may be satisfied by either the existence of shared legal issues with divergent facts or common 8 facts with disparate legal remedies. Hanlon, 150 F.3d at 1019. 9 “Class suits for declaratory or injunctive relief, „by their very 10 nature often present common questions satisfying Rule 23(a)(2). ” 11 Daly v. Harris, 209 F.R.D. 180, 186 (D. Haw. 2002) (quoting 12 13 14 15 16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, 7A FEDERAL PRACTICE AND PROCEDURE § 1763 (1986)). Here, the proposed class shares a common question of law: whether Defendant engaged in a pattern and practice of 17 discriminating against female tenants by creating a hostile 18 living environment, engaging in quid pro quo sexual harassment, 19 and interfering with female tenants enjoyment of their dwelling. 20 21 Defendant does not contest that commonality is satisfied. The specific factual circumstances of the interactions each female 22 23 24 tenant with Defendant will undoubtedly be different. c. Typicality 25 Rule 23(a)(3) requires that “the claims or defenses of the 26 representative parties are typical of the claims or defenses of 27 the class.” Typicality is satisfied “when each class member's 28 15 1 claim arises from the same course of events, and each class 2 member makes similar legal arguments to prove the defendant's 3 4 liability.” Armstrong, 275 F.3d at 868, quoting Marisol v. Guiliani, 126 F.3d 372, 376 (2nd Cir. 1997). The test of 5 6 7 typicality “is whether other members have the same or similar injury, whether the action is based on conduct which is not 8 unique to the named plaintiffs, and whether other class members 9 have been injured by the same course of conduct.” Hanon v. 10 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992), quoting 11 Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985). Under the 12 13 14 15 16 17 rule's “permissive standards,” representative claims are typical if they are “reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. Typicality cannot be analyzed until proper class 18 representatives are identified. The Plaintiffs, however, have 19 allegations typical of the class: Ms. Hawecker alleges that 20 21 Defendant made inappropriate sexual comments about her body, subjected her to sexual advances, offered her rent reduction in 22 23 24 exchange for sex, and photographed her naked; Ms. Broussard alleges that Defendant made inappropriate sexual comments to her 25 and touched her body. These allegations are typical of the class 26 claims that Defendant engaged in a pattern or practice of sexual 27 harassment and sex discrimination toward his tenants. See Dukes, 28 16 1 603 F.3d at 613 (finding that named plaintiffs claims were 2 sufficiently typical of the class even though individual 3 4 employees may have received different pay or been denied promotion at different rates, because the alleged discrimination 5 6 7 occurred through alleged common practices). Defendant argues that Ms. Hawecker and Ms. Broussard are not 8 typical class members because Defendant will raise specific 9 defenses against them. Specifically, Defendant argues that Ms. 10 Hawecker is a prostitute, made sexual advances to Defendant, and 11 has a criminal background. A named plaintiff s motion for class 12 13 14 15 16 certification should not be granted if “there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.” Hanon, 976 F.3d at 508, quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, 17 Fenner & Smith, Inc., 903 F.2d 176, 180 (2nd Cir. 1990). In Hanon, 18 the Ninth Circuit held that the named plaintiff had a unique 19 background and factual situation, i.e., his reliance on the 20 21 integrity of the market would be in dispute given his extensive experience in prior securities litigation, relationship with 22 23 24 lawyers, practice of buying a minimal number of shares of stock in various companies, and uneconomical purchase of only ten 25 shares in a certain company, and it was predictable that a major 26 focus of the litigation would be on a defense unique to him. 976 27 F.2d at 508-509. Here, Defendant s unique allegations against Ms. 28 17 1 Hawecker make her case different and have the potential to 2 consume a considerable amount of time in litigating her defenses. 3 4 She is not a typical plaintiff. Her interest is in damages, not injunctive relief. 5 6 7 Plaintiffs cite two cases, Ross v. Bank South, N.A., 837 F.2d 980, 991 (11th Cir. 1988), and Beck v. Maximus, Inc., 457 8 F.3d 291, 300 (3rd Cir. 2006), for the proposition that defenses 9 based on speculation, rumor, and misleading evidence should not 10 be considered by the court. However, the Ross v. Bank South 11 opinion was vacated. See Ross v. Bank South, N.A., 848 F.2d 1132 12 13 14 15 16 (11st Cir. 1988). Beck states that “[i]f a court determines an asserted unique defense has no merit, the defense will not preclude class certification.” 457 F.3d at 300. The Beck court then agrees with the standard of Hanon and other circuits to 17 articulate a “single standard”: “A proposed class representative 18 is neither typical nor adequate if the representative is subject 19 to a unique defense that is likely to become a major focus of the 20 21 litigation. We believe this standard strikes the proper balance between protecting class members from a representative who is not 22 23 24 focused on common concerns of the class, and protecting a class representative from a defendant seeking to disqualify the 25 representative based on a speculative defense.” Id. Beck does not 26 change the inquiry regarding whether the unique defenses will 27 consume a major part of the litigation and detract from the 28 18 1 2 3 4 common class claims. Defendant further argues that Ms. Hawecker and Ms. Broussard s claims are atypical because they are no longer Defendant s tenants and do not have any interest in obtaining 5 6 7 declaratory and injunctive relief. This argument misstates the issue of typicality, which focuses on “whether other members have 8 the same or similar injury, whether the action is based on 9 conduct which is not unique to the named plaintiffs, and whether 10 other class members have been injured by the same course of 11 conduct.” Hanon, 976 F.2d at 508. Named Plaintiffs have allegedly 12 13 14 15 16 suffered the same or similar pattern and practice of injuries as the proposed class, so typicality would not be denied for this reason. Typicality cannot be analyzed until after a typical class 17 representative with standing intervenes. 18 d. Adequate Representation 19 20 21 Rule 23(a)(4) permits class certification only if “the representative parties will fairly and adequately protect the interest of the class.” Fed. R. Civ. P. 23(a)(4). “The proper 22 23 24 resolution of this issue requires that two questions be addressed: (a) do the named plaintiffs and their counsel have any 25 conflicts of interest with other class members and (b) will the 26 named plaintiffs and their counsel prosecute the action 27 vigorously on behalf of the class?” In re Mego Fin. Corp. Sec. 28 19 1 Litig., 213 F.3d 454, 462 (9th Cir.2000). Whether the class 2 representatives satisfy the adequacy requirement depends on “the 3 4 qualifications of counsel for the representatives, an absence of antagonism, a sharing of interests between representatives and 5 6 7 8 9 absentees, and the unlikelihood that the suit is collusive.” Walters v. Reno, 145 F.3d 1032, 1046(9th Cir. 1998), quoting Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994). Defendant does not contest that Plaintiff s counsel would 10 represent the parties fairly and adequately represent the 11 interests of the class. Plaintiffs counsel declare that they do 12 13 14 15 16 not have any conflicts of interest with other class members, that they have committed substantial time and resources to the action, and that they will represent the interests of the proposed class fairly and adequately. Rule 23(a)(4) is satisfied as to 17 Plaintiffs counsel. Plaintiffs counsel declare that they have 18 over 20 years experience with federal litigation experience and 19 housing discrimination cases in particular, experience serving as 20 21 class counsel, and have successfully tried a number of FHA cases on behalf of plaintiffs. 22 23 24 As discussed above, Ms. Hawecker and Ms. Broussard do not have standing to serve as class representatives. Defendant argues 25 that Ms. Hawecker and Ms. Broussard do not have any incentive to 26 protect the class s interests. Defendant contends that named 27 Plaintiffs seek individual compensatory and punitive damages and 28 20 1 the class claims for injunctive and declaratory relief will not 2 benefit them. Ms. Hawecker and Ms. Broussard declare that their 3 4 principal objective has been to ensure that Defendant stops harassing and exploiting his female tenants. Although there is no 5 6 7 evidence that Ms. Hawecker and Ms. Broussard would not vigorously seek injunctive and declaratory relief on behalf of the class, 8 they do not share an interest in seeking injunctive and 9 declaratory relief with current and future tenants. A current 10 tenant with standing to seek injunctive and declaratory relief 11 would more adequately represent the class interests. Adequacy of 12 13 14 15 16 representation will be analyzed after a proper class member intervenes. 2. Rule 23(b)(2) Certification under Rule 23(b)(2) is appropriate when the 17 defendant “has acted or refused to act on grounds generally 18 applicable to the class, thereby making appropriate final 19 injunctive relief or corresponding declaratory relief with 20 21 respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). “Class certification under Rule 23(b)(2) is appropriate only where the 22 23 24 primary relief sought is declaratory or injunctive.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1195 (9th Cir. 2001). 25 Rule 23(b)(2) certification is not appropriate where monetary 26 relief predominates over injunctive or declaratory relief. Dukes 27 v. Wal-Mart Stores, Inc., 603 F.3d 571, 617 (9th Cir. 2010). To 28 21 1 determine whether monetary relief predominates, courts should 2 consider the objective “effect of the relief sought.” Id. 3 4 For class certification under Rule 23(b)(2), “[i]t is sufficient if class members complain of a pattern or practice 5 6 7 that is generally applicable to the class as a whole. Even if some class members have not been injured by a challenged 8 practice, a class may nevertheless be appropriate.” Walters v. 9 Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). Here, Defendant has an 10 alleged pattern or practice of sexual harassment and sex 11 discrimination against female tenants, and the alleged practice 12 13 14 15 16 is applicable to the class of female tenants as a whole. Defendant argues that Ms. Hawecker and Ms. Broussard s claims for compensatory and punitive damages predominate over the claim for injunctive and declaratory relief. Ms. Hawecker and Ms. 17 Broussard do not have standing to serve as class representatives 18 and their claims for compensatory and punitive damages are 19 individual claims. Class certification is solely for declaratory 20 21 and injunctive relief, and would satisfy Rule 23(b)(2). D. Appointment of Class Counsel 22 23 24 Plaintiffs request that Plaintiffs counsel be appointed class counsel. In appointing class counsel, a court must 25 consider: “(i) the work counsel has done in identifying or 26 investigating potential claims in the action; (ii) counsel s 27 experience in handling class actions, other complex litigation, 28 22 1 and the types of claims asserted in the action; (iii) counsel s 2 knowledge of the applicable law; and (iv) the resources that 3 4 counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1). 5 6 7 Plaintiffs counsel, Brancart & Brancart, declare that they have spent considerable time investigating the case, locating and 8 interviewing former tenants, and reviewing Accurint and Kern 9 County Superior Court civil records. Plaintiffs counsel declare 10 that they have over 20 years experience with federal litigation, 11 experience with housing discrimination cases, and experience with 12 13 14 15 16 class actions. Plaintiffs counsel declare that they have already committed substantial time and resources to this case and will continue to do so in representing the class. Defendant does not contest the appointment of Plaintiffs counsel as class counsel. 17 As there is no class representative with standing and a class has 18 not been certified, it is premature to appoint class counsel. 19 20 21 E. Notice to Class Plaintiffs request that they not be required to provide notice of class certification. If they prevail on the merits, 22 23 24 25 Plaintiffs state that they will notify class members of the suit and the injunctive terms. Rule 23 does not require notice for classes certified under 26 Rule 23(b)(2). See Fed. R. Civ. P. 23(c)(2)(A) (“For any class 27 certified under . . . (b)(2), the court may direct appropriate 28 23 1 notice to the class”). A court has discretion to require notice 2 and the opportunity to opt-out of Rule 23(b)(2) cases. Dukes, 603 3 4 F.3d at 621. Some courts focus on the “cohesiveness” of the class and the degree to which the named plaintiffs can adequately 5 6 7 represent absent members without notice. Under this approach, the inquiry is to the substance of the class claims, and whether the 8 class claims involve individual relief that would not affect all 9 members equally in the event of settlement or verdict. 3 CONTE & 10 NEWBERG, supra, at 178-179. The Advisory Committee to the 1996 11 Amendment of Rule 23 states that “[i]n the degree that there is 12 13 14 15 16 17 cohesiveness or unity in the class and the representation is effective, the need for notice to the class will tend toward a minimum.” Fed. R. Civ. P. 23(d)(2) 1996 advisory committee s note. The class has not been certified due to lack of a class 18 representative with standing. The requirement of notice is 19 premature. 20 21 V. CONCLUSION For the reasons stated: 22 23 24 25 1. Plaintiff s motion for class certification is DENIED without prejudice. 2. Defendant shall submit a proposed form of order consistent 26 with this memorandum decision within five (5) days of 27 electronic service of this memorandum decision. 28 24 1 SO ORDERED. 2 DATED: January 12, 2011. 3 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

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