Free Memorandum in Opposition - District Court of California - California

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 1 of 21

2 3
A

5 6

MichaelAllen M. Stephen Dane JohnP. Relman Thomas Kearv J. Pending admissionpro vice hac D. ScottChang, #146403 Relman Dane, PLLC ft 1225lg'n Street, NW, Suite600 Washington, 20036 DC (202)728-1888 Telephone: Fax: (202)728-0848 Attorneys Plaintffi for UNITED STATESDISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
National Fair Housing Alliance, Inc., et a1.,

8 9 l0 l1 t2

No. C07-3255 SBA Case
Plaintiffs, v.

13 l4 l5 l6 t7 18 19 20 2l 22 23 24 25 26 27 28

A.G. Spanos Construction,Inc.;et al., Defendants.

PLAINTIFFS' OPPOSITIONTO THE SPANOSDEFENDANTS'MOTION FOR CERTIFICATION PURSUANTTO 28 u.S.C.S 12e2(b)

Hearingdate:July 15,2008 P.M. Time:1:00 Dept: Courtroom 3 2007 ComplaintFiled: June200

Plaintiff s Opposition to SoanosDefendants' Motion for Certification Pumuant to 28 U.S.C. 12920)

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 2 of 21

I 2
J

TABLE OF CONTENTS

4 5 6

I.INTRODUCTION

g II. FRAMEWORK AND PURPOSE 28 U.S.C. 1292(b) OF

........................2

8 9 l0 ll t2

A.

The Issues IdentifiedBy the Defendants Constitute "Controlling of Law" Only At A Level So Question[s] Abstract To Be Meaninsless.......... As The OrderRestson Well-Established LegalAuthorityand Encompasses Issues No About Which ThereIs "Substantial Ground Difference Opinion"........ for of 1. ThereIs Not Substantial GroundFor Difference Of OpinionOn the Correctness the OrderAs of To Standing .............. a.

...............3

B.
l3 t4 l5 t6 t7 l8 t9 20 2l 22 23 24 25 26 27 28

.........4

.............5

TheNinth Circuit's DecisionIn Smithv. Pacific Propertie Controls Plaintiffs' s the Standine ThisCase......... In
This Court's Finding That the Plaintiffs' Injuries May Be Redressed the Creation and Joinder By Of a DefendantClass of Apartment Owners Is In AccordWith the Rulingsof OtherCourts....................7

b.

2.

DefendantsHave Failed to Show "Substantial Ground for Difference of Opinion" Regardingthe Sufficiency of Plaintiffs'C1aim........ .............9 This Court's Conclusion That the Plaintiffs Have Alleged a Continuing Violation RestsUpon Sound Authority ThatIs Undisputed ...............10

3.

Plainti{f s Opposition to Spanos Defendants' Motion for Certification Pursuantto 28 U.S.C. 1292(b)

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 3 of 21

I 2
J

C.

Far From"MateriallyAdvancing"The Progress This of Litigation,Interlocutory Appealof the Court'sOrder WouldCause De1av........ Substantial 1.

...............12

4 ) 6

An Immediate AppealChallenging Plaintiffs' Standing of Would Unnecessarily DelayResolution ThisAction .........12
An Appeal Challenging the Sufficiency of Plaintiffs' Claims on the Ground Identified By the DefendantsWould Delay the Inevitable Continuation This Case......... of

2.

8 9 l0 ll t2 l3 t4 l5 t6 t7 l8 l9 20 2l 22 23 24 25 26 27 28

...........13

3. An Interlocutory AppealAddressing ApplicationOf the Would The Continuing Violation Doctrinein This Case .....................14 Merely Postpone Tria1.......... IV.

111

Motion Plaintiff s Opposition Spanos to Defendants' for Certification Pursuant 28 U.S.C.1292(b) to

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 4 of 21

I 2

TABLE OF AUTHORITIES (C.D.Cal.2001) Abrams Shell ShellOil Co.,165F. Supp. 1096 v. 2d ..........14 .........12

4 5 6

Allenv. wright,468 u.s. 737(1984) AmtelCorp.v. Authentec, Inc.,No. C. 06-2138,2007 1880342 WL (N.D.Ca1.2007).

........................8

8 9 l0 1l 12 13 t4 l5 t6 t7 l8

Barnett Washington Bank,F7, No. C 03-00753 v. Mut. ,2004WL2852627, (N.D.Cal.Sept. 17,2004)

.......18

Bd. of Trustees LelandStanford of Inc. Junior Univ. v. Roche MolecularSystems, (N.D.Cal.Apr. 16,2007) No. C 05-04158, WL 1119193 2007 .......................9 ComingUp,Inc. v. City & County SanFrancisco,857 Supp. F. 711 of (N.D. Cal.1994). Coopers Lybrandv.Livesay,437 463(1978) & U.S. (N.D.Cal.1996). Cortezv.MTD Products, lnc.,927F. Supp.386 Fair HousingCouncilv. Villageof Olde St.Andrews, 210Fed. Appx.469(6+hCir.2006). Garcia Broclcway, v. 526F.3d456(9thCir.2008) H a n s b e r r yv. e ,3 1 1 U .S .3 2 ,4 1 -43 (1940) ....... Le

.......................9 .................7, 8 ..................8

..........11 .6,15 .......13

t9 20 2l

Hargravesv. Capital City MortgageCorp., 140F. Supp. 2d7 (D.D.C.2000) Harrisv. Itzhaki,l83F.3d1043 (9thCir.1999)

.......passim .........12

22 23 24

In re ATM FeeAntitrustLitigation, No. C 04-02676,2008 793876, WL (N.D.Cal.Mar.24,2008).. (9thCir. 1982). In re Cement Antitrust Litigation,6T3 F.2d1020

........9 ....................8

25 26 27 28
iv Defendants' Motion Plaintiff s Opposition Spanos to for Certification Pursuant 28 U.S.C.1292(b) to

Independent HousingSerys. SanFranciscov. Fillmore Center, of 8 4 0F . S u p p .l 3 2(N .D .C a l .1 9 9 3 ) 8

...........11

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 5 of 21

Molski v. Mandarin Touch Restaurant,385 F. Supp. 2d 1042 ( C . D .C a l .2 0 0 5 ) . National Ass'nfor Mental Health, Inc. v. Califano,

......................13

7r7F.2d 14sl(D.C. 1983) Cir.
ProjectSentinel Evergreen v. RidgeApartments, 40 F. Supp.2d 1136 OI.D.Cal.1999) Smithv.PacificProps.& Development Corp., (9th Cir.2004) 358F.3d1097 Spannv. Colonial Village, lnc.,899F.2d,24(D.C.Cir. 1990). Sprinkle Robinson, 5-02-1563, v. No. 2008WL 1970562 ( E . D C a l .M a y5 ,2 0 0 8 )........ . Taylorv. City of Oakland,No. 06-05169, 2007WL3287843, C (N.D.Cal.Nov.5,2007).... Taylor FDIC,I32F.3d753(D.C.Cir. 1997) v. Valdovinos McGrath, v. No. C02-I704,2007 (N.D.Cal. WL2023505 July12,2007)..

.................14
1 .......1

...........passim .......................11

.................... ...5

......17 ..........17

.......................3

United States PacificNorthwest v. Electric,.bec., CV-01-019-S-BLW, No. (D.Id. 2003 WL 24573548 Mar.2l,2A$) ..................16 Whitson Heil ig-Meyers v. Furniture,Inc., N o. CV 94-PT-0309-E, 1995 U.S.Dist(N.D.Ala. 1995) Wils v. Glenwood on Intermountain Propertie Inc., s, 9 8F . 3 d 9 0(l 0 thC i r.1 9 9 6 ) 5 STATUTES AND REGULATIONS 4 2U . S . C$ $3 6 0 1 - r e . ................1

..........13,14

.................... .11

42u.s.c. 3604(0(3XC)........... $

.................e

to Defendants' Motion Plaintiffs Opposition Spanos for Certification Pursuant 28 U.S.C.1292(b) to

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 6 of 21

I 2
5

I. INTRODUCTION AND STATEMENT OF FACTS Plaintiffs seekto render more than eighty multifamily residential properties accessible people to with disabilitiesin accordance with the Fair HousingAct ("FHA"),42 U.S.C. $$ 3601-19. Plaintiffs

n

5 6

allegedthat Defendants Development,Inc.,A.G. Spanos A.G. Spanos Construction,Inc.,A.G. Spanos Land Company,Inc.,A.G. Spanos Management,Inc., and the SpanosCorporation("the Spanos Defendants"or'oDefendants")have repeatedlyviolated the FHA over the course of more than fifteen

8 9 l0 ll t2 t3 t4

yearsby designing and building apartmentcomplexesthat do not meet the FHA's requirementsfor accessibilityto people with disabilities. First Amended Complaint ("FAC") flfl 1-11. As the Court recognizedin denying Defendants' motions to dismiss, the repeatedbreachesof the law allegedby Plaintiffs constitute a continuing violation of the FHA that was ongoing at the time Plaintiffs filed their Complaint. This holding remainsunalteredby the subsequent decision of the Ninth Circuit in Garcia v. Broch,vay, 526F.3d 456 (9th Cir. 2008) (en banc), as will later be shown. Plaintiffs seekan injunction

l5 l6 t7 l8

requiring the SpanosDefendants to retrofit each apartment unit and common area and to bring them into compliancewith the law.l On December 21,2007,the SpanosDefendantsfiled a motion to dismiss the Plaintiffs' claims pursuantto Fed. R. Civ. P. Rule l2(bx6). They argued,inter alia,that Plaintiffs lacked standingto bring this action; that the Complaint failed to statea claim for relief and that Plaintiffs' claims were

r9 20
2l 22 23 24 25

time-barred. On April 4,2008, this Court issuedan order soundly rejecting eachof those arguments. Order Denying Motions to Dismiss ("Order") at 17. Defendantsnow contendthat severalof their argumentsare so persuasiveas to warrant an immediate interlocutory appealof the Order to the U.S. Court of Appeals for the Ninth Circuit. Ignoring

26 27 28

Plaintiff s Oooosition Spanos Defendants' Motion to for Certification Pursuant 28 U.S.C.12926) to

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 7 of 21

I 2

the well-established that interlocutory rule are circumstances, appeals only meritedin extraordinary Defendants contend notjust one,but threeof the issues that resolved this Courtshouldreceive by immediate appellate review:(1) whetherPlaintiffshavestanding sueunderthe FHA; (2) whethera to

4 5 6 7 8 9 l0 ll 12 l3 t4 l5 l6 l7 l8 t9 20 2l 22 23 24 25

claimunderthe FHA maybe broughtagainst developer housing who no longerownsthe apartment a of complexin question; (3) whetherrepeated and and breaches the FHA's design construction of requirements constitute sontinuing may a of violationfor statute limitationspu{poses. As is evidentfrom their cursorybrief in support their request certification, for Defendants of havenot identifiedanylegalissues exceptional to warrantcircumventing normalappellate the so as process.Fallingfar shortof the showingrequired 28 U.S.C.$ 1292(b), simplyrecycle by Defendants the very arguments already rejected this Court. This Courtshoulddenytheir request certification. for by II. FRAMEWORK AND PURPOSE 28 U.S.C.S 1292(b) OF Under28 U.S.C.$l29l,litigants may appeal only from o'finaldecisions the districtcourtsof of judgmentthat [r]estricting the UnitedStates." "finality requirement . . evinces legislative The . a prevents debilitating appellate reviewto final decisions caused by effectonjudicial administration the piecemeal appeal disposition what is, in practicalconsequence, a singlecontroversy." but Coopers & of Lybrandv. Livesay, U.S. 463,471(1978) (citation internal quotation 437 marksomitted). and AlthoughS 1292(b) creates narrowexception that finality requirement allowingoccasional a to by "Congress appeals from non-finalorders, the carefullyconfined availability"of this extraordinary measure orderto "ensur[e]that such[interlocutory] in cases" reviewwill be confined appropriate to justify a departure thosein which "exceptional from the basicpolicy of postponing circumstances appellate reviewuntil afterthe entryof a final judgment."Id. at 474-75.

26 27 t 28 Although the SpanosDefendantsno longer own most of these complexes,the Plaintiffs have proposeda workable solution: 2
Plaintiffs Oooosition to Spanos Defendants' Motion for Certification Pursuant to 28 U.S.C. 1292(b)

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 8 of 21

I 2
J

Under 5 1292(b),a non-final order qualifies for immediate appellatereview only if it (l)"involves a controlling question of law as to which" (2)"there is substantialground for difference of opinion," suchthat (3) "an immediate appealfrom the order may materially advancethe ultimate termination of the litigation." Id. lf evenone of thosethree requirementsis absent,certification under 5 1292(b)is improper. SeeIn re CementAntitrust Litigation, 673 F .2d 1020, 1026 (9th Cir. 1982). A "court should construe the[se] requirementsfor certification strictly, and grant a motion for certification only when exceptionalcircumstances warrant. The party seekingcertification . . . has the burden of establishingthe existenceof such exceptionalcircumstances."Valdovinosv. McGrath,No. C02-1704, 2007 WL2023505, at *2 (N.D. Cal. July 12,2007) (citing Coopers& Lybrand,437 U.S. at475). Ultimately, even if the movant meetsthis "demanding standard,"Cortez v. MTD Products, lnc.,927 F. Supp. 386,393 (N.D. Cal. 1996),the court retains "substantial discretion in deciding whether to grant a party' s motion for certification." Valvadinos, 2007 WL 2023505, at * 2. III. ARGUMENT A. The IssuesIdentified bv the Defendants Constitute "Controlling Ouestionls'lof Law" Onlv at a Level so Abstract as to be Meaningless The issuesraisedby the Defendantsmay be seen,in theory, as "controlling" in this casebecause questionsabout standing,the sufficiency of claims, and the timeliness of a lawsuit may determinethe validity of a court's subjectmatterjurisdiction or the substantivepropriety of a claim. An order does not become"per se reviewable," however, simply becauseit dealswith subjectmatterjurisdiction or claim sufficiency. Amtel Corp. v. Authentec, Inc.,No. C. 06-2138,2007WL 1880342, *2 (N.D. Cal. June at 29,2007). "[A] casecould well dissolve into a fragmentarystew of issuesif every significant issue is certified for appeal." Coming Up, Inc. v. City & Countyof San Francisco,857 F. Supp.7ll,7l9 (N.D.

4 5 6 7 8 9 10 ll t2 l3 t4 l5 l6 t7 l8 l9 20 2l 22 23 24 25 26 27 28

thejoinder asa Defendant classof the currentowners theproperties, if from interfering of who maybe enjoined, necessary, with retrofitsordered this Court. by ?
Defendants' Motion Plaintiff s Opposition Soanos to Pursuant 28 U.S.C.1292(b) to for Certification

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 9 of 21

I

CaL1994). That is why "dispositive issuesalone are insufficient to warrant an interlocutory appeal where insuffrcient groundsfor dispute exist." Bd. of Trusteesof Leland Stanford Junior Univ. v. Roche MolecularSystems,fizc., C 05-04158,2007 No. at WL 1119193, *5 (N.D. Cal. Apr. 16,2007). Here, the Defendants' argumentsregarding potentially substantiveissuesare so weak as to border on the frivolous.

2
J

4 5 6

B. The Order Restson Well-Established Legal Authority and Encompasses IssuesAbout no Which There is "Substantial Ground for Difference of Opinion.'o
8 9 l0 ll 12 l3 t4

To prove they are entitled to certification under $ 1292(b),the Defendantsmust show that a "substantial ground for difference of opinion" exists as to the correctness this Court's Order. They of

have failed to do so with respectto all three questionspresented. "A substantialground is not establishedby a party's strong disagreement with the court's ruling; the party seekingan appealmust make some greatershowing." In re ATM Fee Antitrust Litigation,No. C 04-02676, 2008 WL7g3876, at*l (N.D. Cal. Mar. 24,2008). Nor doesa simple lack of caselaw

l5 t6 l7 l8 l9 20 2l 22 23 24 25

addressing preciselegal and factual issue decidedby the court establishsuch a substantialground, the "particularly where there is ample support for the generalprinciples underlying the specific holding." Bd.

of Trustees Leland StanfordJunior Univ. v. RocheMolecular Systems,.Inc., C 05-04158,2A07 of No. WL I ll9l93, at *3 (N.D. Cal. Apr. 16,2007). Instead,a movant for certification must meet its burden by, for example,"demonstrat[ing] a seriousdispute among the courts" regardingthe specific legal issue inquestion. Id. at*4. In certain circumstances, party cannot possibly prove the existenceof a substantialground for a dispute. "Where the[] position of the Circuit Court has been unequivocal,there is no substantialground for differenceof opinion meriting interlocutoryreview." Sprinklev. Robinson, No. 5-02-1563,2008WL

26 27 28

1970562,at *1 (E.D. Cal. May 5, 2008). The existence on-point,controlling authoritythus negates of the possibility of proper certification under $ 1292(b).
4

Plaintiffs Opposition to SpanosDefendants' Motion for Certification Pursuant to 28 U.S.C. 1292(b)

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 10 of 21

I 2
J

This Court's rulings in its Order followed controlling authority from the Ninth Circuit and the SupremeCourt. Theseprecedentseliminate "substantial ground for difference of opinion." In addition, the Defendantshave failed to produce convincing evidence that any courts have reachedholdings that

4 5 6 7 8 9 l0 ll l2 l3 l4 l5 l6

conflict with this Court's conclusionsof law. In the absence any evidencethat "substantial ground for of difference of opinion" exists with regardto those rulings, the requirementsof $ 1292(b)have not been met, and certification should be denied.

L. There is no SubstantialGround for Difference of Opinion on the Correctnessof the Order as to Standins
a. The Ninth Circuit's Decision in Szrilft y. Pacifc Properfi'esControls the Plaintiffs' Standine in This Case. Pacific Properties is a Ninth Circuit opinion that, as this Court has noted, is "on point and dispositive" of the issue of Plaintiffs' standingin this case. Order 13; seeSmith v. Pacific Props. & Development Corp.,358 F.3d 1097(9th Cir. 2004). In Pacific Properties,the Court of Appealsheld that an organization'sfrustration of mission and diversion of resources resulting from a defendant's

t7 l8 t9 20 2l 22 23 24 25 26 27

violations of the design and constructionprovisions of the FHA is sufficient to confer standing. Id. at 1106. The Plaintiffs, in the instant case,have made "allegations of diversion of resources"that are "nearly identical" to those approvedin Pacific Properties. ,See Order 12. As a result, there can be no

dispute in the Ninth Circuit about whether the Plaintiffs have "allege[d] a violation of law[] sufficient to support standing." Under Pacific Properties, they have certainly done so. Certification Petition 6. Even in the absence Pacific Properties, however, Defendantswould not have met their burden of of showing a ground for dispute with regardto the standingissue,because they have producedno case authority whatsoeverto suggestthat other courts have disagreedwith this Court's ruling on standing. Two of the opinions cited by the Defendantsactually supportthis Court's Order, which relied upon

28

Plaintiff s Opposition to Soanos Defendants' Motion for Certification Pursuant to 28 U.S.C. 1292(b)

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 11 of 21

I 2 3

Pacffic Properties in holding that organizationsrequired to divert resourcesas a result of a Defendant's failure to comply with the FHA's design and constructionrequirementshave standingto sueunder the statute. SeeFair HousingCouncilv. Village of Olde St.Andrews,2l0 Fed.Appx. 469,478 (6thCir.

4 5 6

2006) (unpublished)("We accordingly find that the resources that the Fair Housing Council directed toward training and employing testersto investigatethe Village of Olde St. Andrews constitutes[sic] a concreteinjury. Moreover, this injury is directly traceableto the Defendants' constructionof the

8 9 t0 ll 12 l3 t4

housing developmentin a manner resulting in discrimination toward disabledindividuals."); Independent Housing Servs.of San Francisco v. Fillmore Center,84OF. Supp.1328,1328 (N.D. Cal. 1993) ("IHS is injured not only becauseit must spendmore money in seekingaccessible housing elsewherebecause Fillmore Center'salleged inaccessibility,but becauseit must refer its clients to of partially inaccessiblehousing at Fillmore Center.").2 Defendantshave failed to cite to any casein which a federal court has denied standingon facts

l5 l6 17 l8 t9 20 2l 22
ZJ

similar to those allegedin the First Amended Complaint.3 In light of that fact, and of the Ninth Circuit's controlling opinion in Pacific Properties, no "substantial ground for difference of opinion" has been shown with regardto the sufficiency of Plaintiffs' allegedinjuries to warrant standing.

24 )\ 26
)1

28

Defendantsrely on languagefrom these opinions that is taken out ofcontext. Read properly, these casesfail to support Defendants' claims. For example,the language from Fair Hoasing Council cited by the Defendantsderives from the Sixth Circuit's discussionof the point at which the FHA's statuteof limitations begins to run, not standingto sueunder the FHA. SeeFair Housing Council,2l0 Fed. Appx. at 480. Other casescited by the Defendantsaddresslegal claims and factual scenariosentirelydistinctfromthoseinthepresentcase. SeeAllenv.lVright,468U.S.737,755(1984)(holdingthatracial stigmatization servesas an injury conferring standing only for "those personswho are personally denied equal treatmentby thechallengeddiscriminatoryconduct");Wilsonv.GlenwoodIntermountainProperties,Inc.,9SF.3d590(lOthCir. 1996) (addressingonly the claims of plaintiffs who alleged that they personally were prevented from renting apartrnents becauseof gender discrimination). t Both of the casesregarding "voluntarily incurred injury" cited by the defendantsaffirm the sufficiency of the Plaintiffs' injuries.SeeSpannv. Colonial Village,lnc.,899F.2d24,27 (D.C. Cir. 1990)('Havens makesclear . . .thatanorganization establishes Article III injury if it allegesthat purportedly illegal action increasesthe resourcesthe group must devote to programs independentof its suit challenging the action."); Project Sentinel v. Evergreen Ridge Apartments,40 F. Supp. 2d I136, I139 CN.D. Cal. 1999) ("[I]f an organization alleges or is able to show that it has devoted additional resourcesto some area of its effon in order to counteractdiscrimination [by the defendant],the organization has met the Article III standing requirement of injury in fact."). 6
Plaintiff s Opoosition to SpanosDefendants' Motion for Certification Pursuant to 28 U.S.C. 1292(b)

2

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 12 of 21

I 2
J

b. This Courfos Findins That the Plaintiffsn Iniuries May be Redressedbv the Creation and Joinder of a Defendant Class of Apartment Owners is in Accord With the Rulines of Other Courts. To supporttheir contentionthat "case law conflicts regardingwhether Plaintiffs have alleged redressability,"Certification Petition 8, the SpanosDefendantsmake two assertions:(1) "[c]ourts differ regardingwhether someonewho is not disabledand has not been sought to rent [sic] has standingto

4 5 6

8 9 l0 l1 t2 l3 l4 15 t6

seekinjunctive relief'; and (2) "substantialdifferencesof opinion exists [sic] regarding whether due processrequiresthat a court have personaljurisdiction over the owner Defendantclassmemb ers."Id. The Defendantshave cited no persuasiveauthority to support either of those contentions. It is not surprising that the Defendants cannot show that "courts differ regarding whether someonewho is not disabledand has not [] sought to rent has standingto seekinjunctive relief." That is for because more than 25 yearsthe SupremeCourt has recognizedthat an orgarrizational plaintiff has standingto sueunder the FHA, whether or not any of its constituentshas suffered a cognizableinjury. SeeHavens,455 U.S. at379 ("If, as broadly alleged,petitioners' steeringpracticeshave perceptibly

17 18 l9 20 2l 22

impaired [Plaintiff s] ability to provide counselingand referral servicesfor low- and moderate-income home-seekers, there can be no questionthat the orgarization has suffered injury in fact.") Neither of the casescited by the Defendantscontravenes this principle, or, in fact, is even relevant to this motion for certification; eachaddresses particular caseof a plaintiff who lacked standingto sue for reasons the inapplicable the Plaintiffs in this case.SeeHarris v. Itzhaki,183 F.3d 1043,1050 (9th Cir. 1999) to

ZJ

24 25 26 27

(holding, in a casewhere plaintiff allegedinjury resulting from ongoing discrimination at the apartment complex where she lived, that her claims for injunctive relief had becomemoot when shehad moved out of the apartmentcomplex and into a residence"some 3000 miles away"); Molski v. Mandarin Touch Restaurant, 385 F. Supp.2d 1042,1045(C.D. Cal. 2005) (finding that a disabledplaintiff lacked

28

to Defendants' Motion Plaintilf s Opposition Snanos Pursuant 28 U.S.C.1292(b) to for Certification

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 13 of 21

1 2
J

standingto suethe defendantrestaurantfor inaccessibilityunder the Americans with Disabilities Act plaintiff was unlikely to visit the restaurantin the future).4 because The Defendants' secondcontention-that "substantial differencesof opinion exist[] regarding whether due processrequires that a court have personaljurisdiction over the owner defendantclass members"-fails for similar reasons. A number of federal courts have held that a court's personal jurisdiction over namedclassmembersis all that is required to exercisejurisdiction over the classas a whole. See2 Newbergon ClassActions $ 4:47 (4th ed.);seealso Hansberryv. Lee,3l I U.S. 32,41-43 (1940);AbramsShell v. Shell Oil Co., 165 F. Supp.2d 1096,1107 (C.D. Cal. 2001). This very consensus the Court to note in its Order that "it is well settledthat jurisdiction is not neededover led absentmembersof a defendantclass." Order 14. As this Court noted in its Order, "the SpanosDefendantsare simply wrong to suggestthat, were this court to certiff a defendantclass it would still needpersonaljurisdiction over all the Defendant

4 ) 6 7 8 9 l0 ll l2 l3 t4 l5 l6 t7 18 19 20 2l 22 23 24 25 26 27 28

members."Id.The only support the Defendantshave managedto muster comesfrom a throwaway statementin a non-binding footnote to an unpublishedopinion by ar out-of-circuit district court.s Such

4 The Defendants' citation of Molski for the argument "[c]ourts difler regardingwhethersomeone who is not disabledand that hasnot [] sought renthasstanding seekinjunctive to to Thecourtin Molskineveraddressed the relief' defiesexplanation. issueof theremedies available a non-disabled to plaintifffor the obviousreason theplaintiffin Molskiwasdisabled. that Furthermore, rentalof property, the whether theplaintiffor anyone else,wassimplynot an issuein the case; plaintiffs the by complaint wasagainst restaurant whichhe had eaten. a at Molski,385 F. Supp.at 1044. Thecourtheldthatthe plaintiff lackedstanding because, sincehe did not intendto returnto therestaurant, therewasno possibility thathe would incurfuture nj'xy. Id. at 1048. In the instant case, possibilityof futureinjury hasnot beencontested. the 5 Thecourtnl(hitsonv. Heilig-Meyers Firniture,lnc.,No. CV 94-PT-0309-E,lgg5 U.S. Dist. LEXIS 4312,at*49n.l1 (N.D. Ala. 1995)(unpublished) speculate a footnote "[p]resumably, defendant wouldnot present same did class the in that a problems a plaintiff class]because . the forumcourtmusthavepersonal jurisdictionovereachmember a defendant . of [as class."But this comment, madein passing beforethe courtin withoutcitationto anyauthority, puredicta;the issues is l(hitsonwerewhether havethe ability to unnamed members a plaintiffs' class an actionseeking monetary relief should of in opt out of the litigation,andwhether proposed the plaintiffclassin that caseshouldbe certified. Thecourthadno needto jurisdictionwith regard a defendant examine with anydegree carethe demands personal of to class.As a result,its of unexplained comment footnotel7 canieslittle or no weight. in The second case citedby Defendants, NationalAss'nfor MentalHealth,Inc. v. Califano,TlT F.2d l45l (D.C. Cir. 1983), implicitly endorses proposition a courtmay issue judgment the that classeven a thatbindsall members the defendant of absent independent an basisfor personaljurisdiction eachunnamed classmember. appellate The courtin that case over 8
Defendants' to Motion Plaintiff s Onposition Spanos Punuantto 28 U.S.C.1292(b) for Certification

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 14 of 21

I 2
J

minimal support doesnot establishthat "substantialground for difference of opinion" exists with regard to this issue. 2. DefendantsHave Failed to Show'oSubstantialGround for Difference of Opinion" Reeardine the Sufficiencv of Plaintiffs' Claim. The Defendantshave failed to establishthat any conflict actually exists as to "whether only owners, and not developers,ffi&y be held liable for denial of a rental in an FHA design and construction

4 5 6

8 9 l0 ll t2 l3 t4

case." Certification Petition 8. No court has held that as a rule, "only owners, and not developers"may be liable for violations of the Fair Housing Act, most likely becausesuch a rule makes little sensein light of the statute'sspecific mandatesregardingthe standards that must be met by developersof housing units. See42 U.S.C. $ 3604(0(3XC). The two casescited by the Defendants-neither of which is a design and constructioncaseunder the FHA-do not advancetheir argument.6

Defendants have thus failed to marshal any authority to demonstratethat other courts disagree
l5 t6 t7 l8 l9 20 2l 22 23 24 25 26 27 28

with this Court's conclusion that non-owner developersmay be held liable under the FHA. In the absence sufficient grounds for disagreement this issue,interlocutory appealis inappropriate. of on

affrmed the districtcourt'srefusalto certifya defendant it named defendants wouldnot class because foundthattheproposed "At jurisdictionwouldbe improper: all stages the serve adequate as class representatives, thattherefore personal of and "denies litigationthe lack ofadequate representation members] process due the class oflaw andprevents courtfrom [absentee jurisdiction overthe absentee personal assuming added). The Califanocourttherefore members." at 1457(emphasis Id. concurred with theproposition permitsa accepted this Court:adequate by members by representation named defendant class jurisdictionoverabsent personal courtto exercise members. class ' Thedecision Growth in Horizonsis distinguishable the case bar,andaddsnothingto Defendants' that from at assertion groundfor differenceof opinion asto the propriety of this Court's April 4 Order. ln Growth Horizons,the thereis substantial Third Circuitaffrmed the grantof a motionto dismiss, specific holdingthatthe FHA did not requirea countyto purchase people unitsto serve with disabilities.Nowhere that indicate, Defendants as wouldhavethis Courtbelieve, doesthe decision FHA claimslie only against propertyowners.Defendants' reliance Lonbergis evenmorepuzzling. Thatcaseinvolveda on provisionof theAmericans with Disabilities with language differentfrom the FHA provisionat issuein the case Act very at bar,andtheNinth Circuit'sdecision that case to do with liability of an architect, a developer.TheFair Housing in not had Act contains language nothinglike the ADA's provisionlimiting application the statute "owners, of to lessees, lessors, or operators." Instead, definitionof discrimination its and dwellings"in themanner includes "failureto design construct a [new] prescribed theFHA andrelated by the regulations. U.S.C. $ 3694(0(3XC).Because language structure the Fair 42 and of HousingAct diflersmaterially to from thoseof the ADA in this respect, reasoning theLonbergcourtis inapplicable the the of

Plaintilf s Opposition to Soanos Defendants' Motion for Certification Pursuant to 28 U.S.C. 1292(b)

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 15 of 21

I 2
J

3. This Court's Conclusion That the Plaintiffs Have Alleged a Continuine Violation Restt Upon Sound Authority That is Undisputed. Like the Defendants' contentionsregarding Plaintiffs' standingand the sufficiency of Plaintiffs' claims, their assertionthat "[c]ourts differ regarding whether the continuing violations doctrine is applicableto an FHA design and constructcase," Certification Petition 9, is unfounded; they have failed to show that "substantial ground for difference of opinion" exists. The type of factual scenariopled in this case-a seriesof repeatedviolations of the Fair Housing Act over the course of a number of yearswas addressed the SupremeCourt in Havens,which held that "a 'continuing violation' of the Fair by Housing Act should be treateddifferently from one discreteact of discrimination;" a Complaint that

4 ) 6

8 9 l0 il 12 13 t4 l5 t6 17

alleges sucha continuing violationis timely so long asthe "unlawful practice period." limitations Id. at381.

continues into the

As this Court has noted, Havens appliesto the facts of this case. Order 9. "Defendantshave offered no intelligible argumentas to why the reasoningof Havens" should not be applied. /d And in fact, no opinion cited by the Defendantssuggests that Havens would not control the statuteof limitations issuein a casesuchas this one. Garcia v. Broch,vay,526F.3d 456 (9th Cir. 2008) (en banc),upon

l8 t9 20 2l 22

which the Defendantswould no doubt have relied in this motion if the opinion had been releasedearlier, is inapposite. Plaintiffs in the consolidatedcasesknown as Garcia allegedthey had been injured, many yearsafter the construction of the last of two apartmentbuildings, by the continuing effects of Defendants' (or their predecessors') noncompliancewith the FHA's design and construction

ZJ

24 25 26 27 28

requirements. 526 F.3d at 461. According to the Ninth Circuit, the plaintiffs failed to plead a continuing violation because they had not allegedfacts similar to those in Havens, "where the claims were basednot

Defendants' situation. These are very slim reeds,indeed,upon which to assertthat there is substantialground for a difference of opinion with this Court's well-reasonedOrder. l0
Plaintiff s Opposition to Soanos Defendants' Motion for Certification Pursuant to 28 U.S.C. 1292(b)

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 16 of 21

I 2
J

solely on isolated incidents including at least one . . that .

but a continuing violation manifestedin a number of incidentsoccurredwithin the flimitations] period." Id. at 462 (citation and

internal quotation marks omitted). The Ninth Circuit cautionedthat if the Garcia plaintiffs were
4 5 6 7 8 9 l0 il t2

permitted to bring claims basedsolely on the effects of actionstaken by the defendantsmany years before, defendants would face "the burden of defending claims arising from . past."Id. at463-64. Like the plaintiffs in Havens, and unlike the plaintiff in Garcia, Plaintiffs in this casehave allegedmultiple violations of the FHA by the Defendants,including violations that occurred within the limitations period: the SpanosDefendantsbeganbuilding inaccessiblehousing in 1991 and continuedto do so regularlywell into 2007. SeeComplaint,pp.16-18;Plaintiffs' Memo. in Opp. to Spanos Defendants' Motion to Dismiss, p.2, n.2. Plaintiffs seekto hold the SpanosDefendantsliable not for one "decision[] that [is] long past," but rather for numerousdecisions,made over and over again on a regular basis,to violate the FHA's accessibilityprovisions. As this Court recognized,the Plaintiffs' claim alleging that pattern of discrimination "challengesnot just one incident of conduct violative of the [Fair Housing] Act, but an unlawful practice that continuesinto the limitations period." Order 8 (citation and intemal quotation marks omiued). That is exactly the type of conduct that the Ninth Circuit in Garcia recognizedas a legitimate, continuing violation. Garcia, 526 F.3d at 462. As a result, the statute of limitations question in this caseis controlled by Havens and unaffectedby Garcia.T . decisionsthat are long

r3
l4 l5 16 t7 18 19 20 21 22 23 24 25 26 27 28

Becausethe final ruling in Garcia was not available to the Defendantsat the time they filed this motion, they relied instead on a district court casewhose holding tracks that of Garcia. See United Statesv. Pacific Northwest Electric, Inc., No. CV0l-019-S-BLW, 2003 WL24573548 (D.Id. Mar. 21,2003) (holding that the plaintiffhad not allegeda continuingviolation of the FHA where the alleged infractions all occurred outsidethe limitations period). That caseis inapplicable here for the silme reasonsthat Garcia is. The secondcasecited by the Defendants,HargrcNesy. Capital City Mortgage Corp.,140 F. Supp. 2d 7 (D.D.C. 2000), is similarly unavailing. Although the Defendantsdo not speci$ the precise section of that caseupon which they rely for the proposition that "[c]ourts differ regarding whether the continuing violations doctrine is applicable to an FHA design and "The continuing violations theory should construct case," Certification Petition 9, their citation suggests that it is this passage: ll
Plaintiff s Opposition Spanos Motion to Defendants' for Certification Punuantto 28 U.S.C.1292(b)

'

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 17 of 21

I 2
J

Defendants disagree may with this Court'sOrder,but theyhavenot shownthat anyothercourt groundfor would do so. Because Defendants the that havefailedto demonstrate a "substantial difference opinion" existsregarding application the continuing of theyhave the of violationdoctrine,

4 5 6

failedto meettheir burdenunderS 1292(b). C. Far From "Materially Advancins" the Progress This Litisation. InterlocutorvAppealof the of Court's Order Would CauseSubstantial Delay. A districtcourt'sordermaybe appealed of under51292(b)only if reversal that orderon appeal would "materiallyadvance ultimatetermination the litigation."Certification the of under is where"the mostlikely consequence an immediateappeal" would be of $ 1292(b) inappropriate "delayingthe resolution"of Plaintiffs' claims. Barnettv. Washington Mut. Bank,.F7,No. C 03-00753, 2004WL 2852627at * I (N.D. Cal. Sept.17, 2004)(unpublished). particular, In appeal is interlocutory , unlikelyto "materiallyadvance" litigationif a trial would be necessary the regardless the outcome of of theappeal. Taylorv. City of Oakland,No. 06-05169, Id.; 2007WL3287843, *2 (N.D.Cal.Nov. at C 5,2007).As will now be shown,suchconsiderations makecertification an interlocutory appeal of unwarranted here. Moreover, because Defendants takean appeal may from any final judgmentrendered

8 9 l0 ll t2 l3 l4 l5 t6 t7 l8 l9 20 21 22 23 24 25 26 27 28

by this Court,the resortto interlocutory raises substantial a appeal this stage at likelihoodof duplicative litigationanddelay. 1. An ImmediateAppealChalleneing Delav Plaintiffs' StandinsWould Unnecessarily Resolutionof This Action.
be applied where the type ofviolation is 'one that could not reasonablyhave been expectedto be made the subject ofa lawsuit when it first occurred becauseits characteras a violation did not becomeclear until it was repeatedduring the limitationsperiod."'140F.Supp.2d7,18 (D.D.C.2000)(citingTaylorv. FDIC,132F.3d753,764-765 (D.C.Cir. 1997)), As an initial matter, it should be noted that Hargraves is not "an FHA design and construct case," and so cannot be said to establishany proposition at all regarding that type of casespecifically. Nor doesthe cited languagesuggestany generalrule that would preclude application of the continuing violation doctrine to design and construct discrimination under the FHA. That form of discrimination is precisely the sort whose "character as a violation" may escapenotice for long periods of time; the evidenceof the defendants' discrimination-the inaccessiblefacilities that they constructed-are hidden from public view and are unlikely to be recognizedby the vast majority of tenantsor applicantsfor rental. As a result, Hargroves in no way establishes proposition that unlawful acts under the FHA cannot constitute continuing violations. the t2
Plaintiff s Opposition to Spanos Defendants' Motion for Certification Pursuant to 28 U.S.C. 1292(b)

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 18 of 21

I 2 3 4 5 6

Any time spentby the parties in litigating standingissuesbefore the Court of Appeals at this point would likely be wasted. The appeals court ruled as recentlyas2004,h Pacific Properties,that plaintiffs similarly situatedto those in this casehave standingto sue under the Fair Housing Act. Any panel assignedto hear an appealon that sameissuein this casewould be bound to follow the 2004 ruling, meaningthat the ruling of the district court would simply be affirmed. Such an appealwould

8 9 10 il

alter this litigation only by increasingthe amount of time and resourcesexpendedon it. An appealcontestingthis Court's ruling regardingthe formation of a classof defendant-owners would be similarly wasteful. Even if there existed any likelihood that the Ninth Circuit might decide that each and every unnamed member of a defendant class must have minimum contacts with the forum

t2 l3 l4 l5 l6 t7

state,'see Motion to Dismiss 17-18, such a decisionwould not disposeof this case. Without question,at least some of the owners of residential propertiesconstructedby the SpanosDefendantshave the requisite minimum contactswith California to be subjectto personaljurisdiction here; many of those properties,after all, are located in California, see Complaint l6-18, and others can be reachedthrough California's long-arm statute. Any owners determinedto have the necessary connectionswith Califomia

18 l9 20 2l 22

would remain proper candidatesfor joinder to this lawsuit even if the Court of Appeals decidedthat all other owners were not. As a result, this litigation would continue unabatedin the wake of such an appeal-after, of course,a lengthy period of discovery and pleading during which the parties determined which owners were subjectto suit in this court. Interlocutory appealwould thus bog down, rather than

23 24 25 26 27 28

advance,the progressof this action. 2. An Appeal Challeneine the Sufficiency of Plaintiffs' Claims on the Ground Identified bv the DefendantsWould Delav the Inevitable Continuation of This Case. Given the absence any authority that even suggests of that "only owners, and not developers" may be liable under the FHA, the likelihood that the Defendantscould prevail on such a claim before the
l3
Defendants' Plaintiff s Ooposition Spanos to Motion Pursuant 28 U.S.C.1292(b) to for Certification

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 19 of 21

I 2
J

Courtof Appeals virtually nil. Sucha trip to the appellate is courtwould represent only a disruption of theprogress this case.Neitherthe Defendants, Plaintiffs,nor the Courtwould benefitfrom sucha of nor fruitlessexercise, the outcome this litigationwould be delayed and of further.

4 5 6

3. An InterlocutorvAppealAddressing Applicationof the ContinuineViolation the Doctrinein This CaseWould Merely Postpone Trial. Contrary the Defendants' to conclusory assertion, statute limitationsissueis not'ocase the of

8 9 l0 ll

dispositive." Certification Petition9. Evenif all claimsrelatingto complexes built andsoldby the prior to June2005weredismissed Defendants from this action,numerous claimswould remain. As the Plaintiffshavealleged, Spanos the Defendants completed werein theprocess constructing least or of at properties nineteen noncompliant prior to the filing of the Complaintin this case. within the two years

12 13 t4 l5 t6 t7

,See Plaintiffs'Memo.in Opp.to Motionto Dismiss 16-18.Evenunder 2n.2; Complaint the Defendants' cramped unpersuasive and theoryof the FHA's statute limitations,claimsregarding of those properties unquestionably are Memo.in Support Motion to Dismiss timely. SeeSpanos Defendants' of 10. As a result,evenif theNinth Circuit wereto reviewthis Court'sruling on the statute limitations of issueanddecide accept Defendants' to the the achieved would be arguments, judicial economies

l8 t9 20 2l 22

minimal.This case would continue in the districtcourt,with manyof the same on factsstill left to be investigated throughdiscovery provenat trial. and Because interlocutory appeal the issues of raised the Defendants by could,at bestfor Defendants, eliminate only a portionof the claimsbroughtby Plaintiffs,while leavinguntouched virtually numerous

23 24 25 26 27 28 l4
Plaintiffs Opposition Spanos to Defendants' Motion for Certification Pursuant 28 U.S.C.1292(b) to

identicalclaimsthat differ only in their reference morerecently constructed to buildings,certification of the limitationsissuewould not materiallyadvance case.On the contrary, principalresultwould its this be delayin correcting inaccessible any features These serious violationsthat atarryproperties. are Plaintiffsallegeexclude persons with disabilities from living thereor significantlylimit their useof the

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 20 of 21

I 2
J

properties. FAC fltl8-I0,45-7I- For these Defendants as above, reasons well asthe others outlined havefailed to demonstrate a piecemeal that in interlocutory appeal this litigationis warranted.

4 5 6

IV. CONCLUSION
For the foregoing reasons,Defendants' motion for certification should be denied. A proposed order is attached. Dated: Jwre24,2008

8 9 l0 ll 12 13 t4 l5 t6 t7 l8 t9 20 2l 22 23 24 25 26 27 28

Respectfully submitted,

/s/ MichaelAllen MichaelAllen Stephen Dane M. JohnP. Relman Thomas Kearv J. Pending hac admissibnpro vice D. ScottChang, #146403 Relman& Dane.PLLC 1225l9thStreet, NW, Suite600 Washington, 20036 DC Telephone(202)728-l 888 : Fax:(202)728-0848 Attorneys Plaintffi for

l5
Plaintiff s Opoosition to SpanosDefendants' Motion for Certification Pursuant to 28 U.S.C. 1292(b)

Case 4:07-cv-03255-SBA

Document 121

Filed 06/24/2008

Page 21 of 21

I 2
J

CERTIFICATE OF SERVICE NORTHERN DISTRICT OF CALIFORNIA I herebycertify that on Jlurire 24,2008,a copyof the foregoing Plaintiffs' Opposition the to Defendants' Spanos was Motion for Certification filed Pusuantto U.S.C.$ 1292(b) electronically 28 andby operation the Court'sECF system of mail: was served uponthe following by electronic Stephen Walters MakeshaPatterson Allen MatkinsLeck,,Gamble, Mallory & Natsis,LLP ThreeEmbarcadero Center,12tn Floor SanFrancisco, 94lll CA swalters@allenmatkins. com mpatterson@allenmatkins. com Attorneys D efendant Knickerbocker Properties for ThomasKeeling Lee Roy PierceJr. Freeman, D'Aiuto, Pierce, Gurev,Keeling& Wolf 1818GrandCanal Boulevard Stockton, California tkeeling@ emanfi com fre rm. Attorneyfor Defendants A.G. Spanos fnc., Construction, A.G. Spanos Developmenl fnc.,A.G. Spanos Land Company,Inc., A.G. Spanos Management, and TheSpanos Inc., Corporation ShirleyJackson Steefel, Levitt, & Weiss,LLP OneEmbarcadero Center, Floor 30th SanFrancisco, 94lll CA [email protected] Attorneyfor D efendant ghpointe Village,L.P. Hi

i

5 6

8 9 l0 ll t2 13 l4 l5 l6 t7 l8 l9 20 2l 22 23
.A

/s/ Navna Guota Nayna Gupta

25 26 27 28