Preview
VINCENT J. BARTOLOTTA, IR, ESQ. (SBN 055139)
KAREN R. FROSTROM, ESQ. (SBN 207044)
THORSNES BARTOLOTTA MCGUIRE LLP
2550 Fifth Avenue, 11m Floor
San Diego, California 92103
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SAN MATEO CO UNTY
Tel: (619) 236-9363 Fax: (619) 236-9653
Attorneys for Plaintiffs FRANCESCA FAIVIBROUGH,
CHRIS TAVENNER, NINA PESCHCKE—KOEDT, EMILIO
DIAZ, DAN SLANKER, DAWN SLANKER, BRENDA
SMITH, THUIVIPER SMITH 3’
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10 FRANCESCA FAMBROUGH, CHRIS Case No.: 17CIV053 87 g g
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Memorandum
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TAVENNER, NINA PESCHCKE—KOEDT,
EMILIO DIAZ, DAN SLANKEK DAWN
SLANKER, BRENDA SMITH, THUIVIPER
[CLASS ACTION]
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MCGUIRE
12 SMITH,, PLAINTIFFS’ REPLY IN SUPPORT OF ITS
FLOOR
92103
MOTION FOR INJUNCTIVE RELIEF
11TH
13 Plaintiffs,
236-9653
CALIFORNIA
AVENUE
(619)236-9363
14 v. . .
Date: August 24, 2018
BARTOLOTTA
(619)
Time: 2:00 pm.
DIEGO,
FAX 15 REDWOOD CITY, Dept: .
2
2550FIFI'H
SAN
Judge: Marie S. Weiner‘
16 Defendant. Complaint Filed: November 22, 2017
'IHORSNES
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Trial Date: None set‘
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“-1
18
19 Plaintiffs respectfiIlly submit this reply memorandum of points and authorities in support of
20 their request for injunctive relief to maintain the status quo at Docktown pending resolution on the
.21 determination of relocation compensation owed before they are required to move.
22 Defendants’ brief demonstrates the reality of the problem here, contending that it was already
23 paid $15 million in relocation costs and that if the remaining 20 out of 65 residents accept the
24 amounts offered to them, the City will pay an additional $1 million. In other words, the City has paid
25 45 residents over $300,000 each but is only willing to pay the remaining 20 residents about $50,000.
26 The City is not offering to be “generous” to the residents who have not moved out.
27 Defendants contend that Plaintiffs lack the ability to demonstrate, under C.C.P. § 526, that
23 they are entitled to relief. This is incorrect. Pursuant to GOP. § 526(a)(2), injunctive relief is
1
1290278v1 PLAINTIFFS’ REPLY IN SUPPORT OF ITS MOTION FOR INJUNCTIVE RELIEF
appropriate “[w]hen it appears by the complaint or affidavits that the commission or continuance of
some act during the litigation would produce waste, or great or irreparable injury, to a party to the
action.” Defendant’s citation to 7978 Corp. v. Pitchess, 41 Cal.App.3d 42 (1974) is unavailing. In
that case, the plaintiff sought an injunction to retain its ability to operate an adult dancing lounge
between the hours of 2 am. and 6 am. The appellate court found that closing the clubs for those four
hours did not risk irreparable harm. That is distinguishable here, where the affidavits submitted in
support of the motion demonstrate that eviction of some of these residents without reasonable
relocation assistance could cause homelessness and other financial distress. Defendant’s contention
that Thaver Plymouth Center v. Chrfler Motors Com, 255 Cal.App.2d 300 (1967) holds that
10 Plaintiffs cannot seek an injunction because they have not pled a cause of action for injunctive relief
11 is fallacious. The holding in that case was that an injunction was not available in a breach of contract
12 cause of action.
03
FLOOR
921
11TH
13 Defendants further contend that courts should generally not enjoin public officers or agencies
236-9653
CALIFORNIA
THORSNESBARTOLOTLANKXHHRELLP
AVENUE
(619)236-9363
14 from performing their duties. While this statement of law is correct, Defendant’s argument is flawed
(619)
FIFTH
DIEGO,
FAX 15 for several reasons. First, that general rule can be overruled by a showing of irreparable harm, which
SAN
2550
16 has been shown by the affidavitssubmitted in support of the motion. Tahoe Keys Property Owners’
17 Ass’n v. State Water Resources Control Board, 23 Cal.App.4fl‘ 1459, 1471 (1994)(“ This rule would
18 not preclude a court from enjoining unconstitutional or void acts, but to support a request for such
19 relief the plaintiff must make a significant showing of irreparable injury. “) Second, Plaintiffs are not
20 seeking to enjoin Defendant from “performing their duties.” Plaintiffs are seeking the opposite — to
21 enjoin the City from engaging in unlawful conduct until the Court can adjudicate whether the City is,
22 as alleged, engaging in unlawful conduct by displacing residents without first providing them with
23 the required relocation assistance.
24 Defendant contends that Plaintiffs will not be able to demonstrate that the City is displacing
25 the residents for a reason set forth in Government Code § 7260(0). Once again, Defendant is wrong.
26 Plaintiffs are being displaced as a result of “other displacing activity, as the public entity may
27 prescn'be under a program or project undertaken by a public entity.” Section 7260(c)(ii). The City
28 admits that it is displacing the Docktown residents for a public purpose. (Opposition at 9:9-11.)
2
1290278v1 PLAINTlFFS’ REPLY IN SUPPORT OF ITS MOTION FOR INJUNCTIVE RELIEF
During the deposition of the City’s PMK, the City admitted that the residents were being displaced
to benefit the public as part of a City program to end residential uses at Docktown. (Citation to be
provided once available.) The City is intentionally delaying a decision on what to do with Docktown
until it has gotten rid of the unwanted residents in an obvious effort to avoid paying legal relocation
benefits. However, the City admits that it is currently losing about $200,000 per year on the marina
and also admits that the live-aboard residents are'the ones who pay higher rents. It also admits that it
has lost — and been unable to replace — a significant number of recreational boaters. (Citation to be
provided once available.) If it cannot fill the recreational slips currently available, it is difficult to
believe that about seventy new recreational users will suddenly show up wanting to rent‘slips. The
10 City will not reasonably continue to operate this marina if it is losing over a million dollars a year.
LLP
11 Defendant, as it did on demurrer, contends that the Stephens v. Per_ry is directly on point. The
MCGUIRE
12 Court has already rejected that argument. (Exh. “A” hereto.)
FLOOR
92103
11TH
13 Defendant contends that Plaintiffs’ exclusive remedy is a writ of mandate. However, it has
236-9653
CALIFORNIA
AVENUE, (619)236-9363
9) 14 failed to make a legal showing of that, citing to a case, Mountain View v. Superior Court, 54
BARTOLOTTA
(61
FIFI'H
DIEGO,
FAX 15 Cal.App.3d 72 (1975), that in actuality holds that in an eminent domain case, a property owner
SAN
2550
16 must file a writ. Additionally, Plaintiffs are not seeking “damages” with respect to the CRAL claim,
THORSNES
17 they are seeking legally required relocation assistance. Furthermore, a government claim is not
18 required until a claim is ripe. Because relocation benefits are required to be paid before a resident is
19 displaced, a claim would not be required until the residents are displaced without being provided
20 benefits, a travesty that Plaintiffs are attempting to prevent by filing this motion.
21 Defendant contends that Plaintiffs cannot prove inverse condemnation because they are only
22 being evicted. This disregards the fact that these are not simple evictions. Plaintiffs’ vessels have
23 been converted into floating homes which cannot be moved or used in another location. Eviction of
24 the Docktown residents will result in the deprivation of their property — literally, the property in
25 which they have lived for years.
26 Defendants contend that Plaintiffs have not shown irreparable injury. This would be
27 laughable if it were not so tragic. The City knows that Plaintiffs cannot obtain comparable
28 replacement housing because the average rents in the area vastly exceed the marina rents that
3
1290278v1 PLAINTH‘FS’ REPLY IN SUPPORT OF ITS MOTION FOR INJUNCTIVE RELIEF
Plaintiffs are paying. (Citation to be provided when available.) Children will be forced out of their
schools. Families will be forced to move to dangerous neighborhoods. People will be homeless or
living in their cars. Payment of appropriate relocation benefits would avoid all of this harm. The
City, by contrast, will not suffer any harm if it is required to follow the law before displacing these
residents.
Finally, there is absolutely no basis for a bond in this case because the City will not be
financially harmed. In fact, it will benefit because the Plaintiffs will continue to pay rent that would
‘
otherwise not be paid.
Dated: August 17, 2018 THORSNES BARTOLOTTA MCGUIRE LLP
10
LLP
11
VINCENT J. BARTOLOTTA, JR, ESQ.
MCGUIRE
12 KAREN R. FROSTROM, ESQ.
moon
92103
NEAL A. MARKOWITZ, ESQ.
13 Attorneys for Defendants
11m
CALIFORNIA 236-9363
236—9653
ANNA AVENUE ASSOCIATES, LLC, ET AL.
AVENUE
14
(619)
BARTOLOTTA
(619)
FIFI'H
DIEGO,
FAX 15
SAN
2550
16
THORSNES
17
18
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20
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1290278vl PLAINTIFFS’ REPLY IN SUPPORT OF ITS MOTION FOR INJUNCTIVE RELIEF
EXHIBIT "A"
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
'
COUNTY OF SAN MATEO
‘
FRANCESCA FAMBROUGH, ' et al., Civil No. 17CIV05387
CLASS ACTION
Plaintiffs,
Assigned for All Purposes to
vs. Hon. Marie S. Weiner, Dept. 2
REDWOOD CITY, CASE MANAGEMENT ORDER #3
Defendant.
On April 18, 2018, a Case Management Conference. was held and hearing was
held on Defendant’s Demurrer to the First Amended Complaint in Department 2 of this
Court before the Honorable Marie S. Weiner. Karen Frostrom of Thorsnes Bartolotta
McGuire LLP appeared on behalf of Plaintiffs, and Kevin Siegel of Burke Williams &
Sorensen LLP appeared on behalf of Defendant Redwood City.
Upon due consideration of the briefs presented, and the oral argument of counsel
for the parties, and having taken the matter under submission,
IT IS HEREBY ORDERED as follows:
1. Defendant’s Demurrer to the Plaintiffs’ First Amended Complaint in its
entirety on the basis that the claims are not subject to class action certification is
l
DENIED. Defendant has attempted to turn this Demurrer into a substantive motion for
denial of class certification and a substantive motion for summary judgment and
summary adjudication of issues - which this Court rejects procedurally. “Class
certification is generally not decided at the pleading stage of a lawsuit.” In re BCBG
Overtime Cases (2008) 163 Cal.App.4”‘ 1293, 1298. The “preferred course is to defer
decision on the propriety of a class action until an evidentiary hearing has been held on
the appropriateness of class litigation.” Rosev. Medtronics Inc. (1980) 107 Cal.App.3d
150, 154; AVBCBG at p. 1298;M:Canon,-.U.SA4 Inc. v-._Superior Court~.(l998) 68 Cal.AppAth
1, 5. This Court deems that class certification is more appropriately determined in this
case by motion for class certification, not demurrer based heavily upon Defendant’s
efforts to interj ect facts via “judicial notice”.
2. Defendant’s Demurrer to the First Amended Complaint as to the first
cause of action for violation of federal and state statutes providing relocation assistance
to displaced persons, on the basis that it fails to state facts sufficient to constitute a cause
of action, is OVERRULED. Defendant’s citation to ”Stephens v. Fem (1982) 134
Cal.App.3d 7.48 is not of assistance at the pleading stage. Stephens pertained to appeal of
dismissal of a petition for writ when the trial court granted summary judgment in favor of
defendants — which makes no procedural sense in the first place, as a petition for writ of
mandate must be based upon administrative record, and is not generally subject to
adjudication by summary judgment under C.C.P. Section 437C. Uniquely iniStephens,
the parties stipulated to the facts ——
not so, here. The decision by the Court of Appeal
was very fact-based — and thus its application to our case is not established because the
pleadings must be accepted as true at this point. As for the case of ,Bozaich v. State of
,California (1973) 32 Cal.App.3d 688, the Court of Appeal held that class action)
allegations in the complaint were appropriate stricken (not demurrer) because the
Plaintiffs’ cause of action seeking relocation expenses from an eminent domain situation
required administrative exhaustion by the filing of a government claim pre-lawsuit, and
that the named plaintiffs had complied but determination as to each member of the Class
would be individual and thus individual issues would predominate. The requirement of
an administrative claim process pre—trial for statutory right of reallocation benefits no
longer exists (as the law was changed), so the holding and the underlying, considerations
do not apply here.
3. Defendant’s Demurrer to the First Amended Complaint as to the second
cause of action for inverse condemnation, on the basis that it fails to state facts sufficient
to constitute a cause of action, is OVERRULED. Plaintiffs have pleaded that the subject
property is privately—owned. Defendant asserts that it is public land. This is not subject
to adjudication on demurrer. Further, Defendant’s reliance upon County of Venture v.
{Channel IslandsMarina Inc., (2008) l59 Cal.App.4‘h 615 is premature at this pleading
stage. That decision considered the case after a complete trial on the merits, including a
court trial of issues of law and a jury trial on damages. The Court of Appeal held that its
decision would be the same whether considered under the claim for inverse
condemnation or under the claim for breach of lease, and reversed on the ground of no
damages and thus no right to judgment.
'4. Defendant’s Demurrer to the First Amended Complaint as to the third
cause of action for declaratory relief, on the basis that it fails to state facts sufficient to
constitute a cause of action, is SUSTAINED WITHOUT LEAVE T O AMEND. The
issues raised in the “claim” for “declaratory relief” are not properly adjudicated by
Complaint for Declaratory Relief, but rather were subject to adjudication by Petition for
Writ of Mandate. Defendant’s Special Dcmun‘er to the third cause of action on the basis
of lack of necessary party is MOOT.
5. Plaintiffs” and Defendant‘s Requests for Judicial Notice are DENIED;
except that Defendant’s Request for Judicial Notice Exhibit A, ofa State statute is
GRANTED. Most of this is factual evidence, not proper ‘for consideration on demurrer.
Some pertains to other cases, which is basically irrelevant for purposes of this demurrer,
which was not brought on the basis of “other action pending", or res judicata, or
collateral estoppel.
6, Defendant shall file and serve its Answer to the First Amended Complaint
on or before May 17, 2018.
7. A Case Management Conference is set for Wednesday, June 6, 2018 at
2:00 p.m. in Department 2 of this Court, located at Courtroom 2E, 400 County Center,
Redwood City, California.
8. In anticipatiori of the Case Management Conference, counsel for the
parties should be prepared to discuss at the hearing and file written case management
-
conference statements (in prose and details, no! using the standardized Judicial
Council form) with a courtesy cepy delivered directly to Department 2 on or before
May 30, 2018, as to the following:
a. Status of Discovery, including the initial production of documents by all
parties, and deposition of the Plaintiil‘s;
b. Status of Settlement or Mediation;
” Proposed hearing datet‘s) and briefing schedule on Plaintiffs Motion for
Class Certification, and what specific discovery is needed before
filing the motion and/or the opposition;
(1. Any other anticipated motions and proposed briefing schedule;
6. Setting of next CMC date; and
f. Any other matters for which the parties seek Court ruling or scheduling.
DATED: May 3, 2018
'
flfl’7
HON. MARIE 's. WEINER
A
JUDGE or THE SUPERIOR COURT
SERVICE LIST
As of February 2018
MICI--1ELLE MARCI—IETTA KENYON
KEVIN SIEGEL
DYLAN CROSBY
BURKE WILLIAMS & SORENSON LLP
1901 Harrison Street, Suite 900
Oakland, CA 94612-3501
(510) 273-3501
VERONICA RAMIREZ
MARY ELEONOR IGNACIO
CITY ATTORNEY FOR REDWOOD CITY
1017 Middlefield Road
Redwood City, CA 94063
(650) 780-7200
VINCENT BARTOLOT’I‘A JR.
KAREN FROSTROM
NEAL MARKOWITZ
DAVID KLEINFELD
,
THORSNES BARTOLOTTA
MCGUIRE LLP
2550 Fifth Avenue, 1 1th Floor
San Diego, CA 92103
(619) 236—9363
AFFIDAVIT 0F MAILING
@é @RSEQ men
SAN marge @30n
CASE NUMBER: 17CIV05387 -
am e 4 20,53
FRANCESCA FAMBROUGH, et 31 VS. REDWOOD CITY
DOCUMENTS: CASE MANAGEMENT ORDER #3
I declare, under penalty of perjury, that on the following date I deposited in the United
State Post Office Mail Box at Redwood City, California a true copy of the foregéing
document, enclosed in an envelope, with the proper and necessary postage prepaid ‘
thereon, and addressed to the following:
MICHELLE MARCHETTA KENYON
KEVIN SIEGEL
DYLAN CROSBY
BURKE WILLIAMS & SORENS ON LLP
1901 Harrison Street, Suite 900
Oakland, CA 9461 2-3 501
VERONICA RAMIREZ
MARY ELEONOR IGNACIO
CITY ATTORNEY OF REDWOOD CITY
1017 Middlefield Road
Redwood City, CA 94063
VINCENT BARTOLOTTA JR. 3,
KAREN FROSTROM
NEAL NIARKOWITZ
DAVID KLEINFELD
THORSNES BARTOLOTTA MCGUIRE LLP
2550 Fifth Avenue, 1 1th Floor
San Diego, CA 92103
Executed on: May 4, 2018
at Redwood City, California
RODINA CATALANO .
CLERK OF THE SUPERIOR COURT
By:
Terri Maragoulas
Deputy Clerk
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VINCENT J. BARTOLOTTA, IR, ESQ. (SBN 055139) KAREN R. FROSTROM, ESQ. (SBN 207044) THORSNES BARTOLOTTA MCGUIRE LLP 2550 Fifth Avenue, 11m Floor San Diego, California 92103 ~ E 1) SAN MATEO CO UNTY Tel: (619) 236-9363 Fax: (619) 236-9653 Attorneys for Plaintiffs FRANCESCA FAIVIBROUGH, CHRIS TAVENNER, NINA PESCHCKE—KOEDT, EMILIO DIAZ, DAN SLANKER, DAWN SLANKER, BRENDA SMITH, THUIVIPER SMITH 3’ ;;- , > ‘ P" Re in Authorities l SUPERIOR COURT OF THE STATE OF CALIFORNIA and lllllllllllllllllllllllllllIll Polnts COUNTY OF SAN MATEO 5 of 10 FRANCESCA FAMBROUGH, CHRIS Case No.: 17CIV053 87 g g 3—— Memorandum LLP »11 TAVENNER, NINA PESCHCKE—KOEDT, EMILIO DIAZ, DAN SLANKEK DAWN SLANKER, BRENDA SMITH, THUIVIPER [CLASS ACTION] :5 BY FAX q? r l MCGUIRE 12 SMITH,, PLAINTIFFS’ REPLY IN SUPPORT OF ITS FLOOR 92103 MOTION FOR INJUNCTIVE RELIEF 11TH 13 Plaintiffs, 236-9653 CALIFORNIA AVENUE (619)236-9363 14 v. . . Date: August 24, 2018 BARTOLOTTA (619) Time: 2:00 pm. DIEGO, FAX 15 REDWOOD CITY, Dept: . 2 2550FIFI'H SAN Judge: Marie S. Weiner‘ 16 Defendant. Complaint Filed: November 22, 2017 'IHORSNES - Trial Date: None set‘ 17 “-1 18 19 Plaintiffs respectfiIlly submit this reply memorandum of points and authorities in support of 20 their request for injunctive relief to maintain the status quo at Docktown pending resolution on the .21 determination of relocation compensation owed before they are required to move. 22 Defendants’ brief demonstrates the reality of the problem here, contending that it was already 23 paid $15 million in relocation costs and that if the remaining 20 out of 65 residents accept the 24 amounts offered to them, the City will pay an additional $1 million. In other words, the City has paid 25 45 residents over $300,000 each but is only willing to pay the remaining 20 residents about $50,000. 26 The City is not offering to be “generous” to the residents who have not moved out. 27 Defendants contend that Plaintiffs lack the ability to demonstrate, under C.C.P. § 526, that 23 they are entitled to relief. This is incorrect. Pursuant to GOP. § 526(a)(2), injunctive relief is 1 1290278v1 PLAINTIFFS’ REPLY IN SUPPORT OF ITS MOTION FOR INJUNCTIVE RELIEF appropriate “[w]hen it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.” Defendant’s citation to 7978 Corp. v. Pitchess, 41 Cal.App.3d 42 (1974) is unavailing. In that case, the plaintiff sought an injunction to retain its ability to operate an adult dancing lounge between the hours of 2 am. and 6 am. The appellate court found that closing the clubs for those four hours did not risk irreparable harm. That is distinguishable here, where the affidavits submitted in support of the motion demonstrate that eviction of some of these residents without reasonable relocation assistance could cause homelessness and other financial distress. Defendant’s contention that Thaver Plymouth Center v. Chrfler Motors Com, 255 Cal.App.2d 300 (1967) holds that 10 Plaintiffs cannot seek an injunction because they have not pled a cause of action for injunctive relief 11 is fallacious. The holding in that case was that an injunction was not available in a breach of contract 12 cause of action. 03 FLOOR 921 11TH 13 Defendants further contend that courts should generally not enjoin public officers or agencies 236-9653 CALIFORNIA THORSNESBARTOLOTLANKXHHRELLP AVENUE (619)236-9363 14 from performing their duties. While this statement of law is correct, Defendant’s argument is flawed (619) FIFTH DIEGO, FAX 15 for several reasons. First, that general rule can be overruled by a showing of irreparable harm, which SAN 2550 16 has been shown by the affidavitssubmitted in support of the motion. Tahoe Keys Property Owners’ 17 Ass’n v. State Water Resources Control Board, 23 Cal.App.4fl‘ 1459, 1471 (1994)(“ This rule would 18 not preclude a court from enjoining unconstitutional or void acts, but to support a request for such 19 relief the plaintiff must make a significant showing of irreparable injury. “) Second, Plaintiffs are not 20 seeking to enjoin Defendant from “performing their duties.” Plaintiffs are seeking the opposite — to 21 enjoin the City from engaging in unlawful conduct until the Court can adjudicate whether the City is, 22 as alleged, engaging in unlawful conduct by displacing residents without first providing them with 23 the required relocation assistance. 24 Defendant contends that Plaintiffs will not be able to demonstrate that the City is displacing 25 the residents for a reason set forth in Government Code § 7260(0). Once again, Defendant is wrong. 26 Plaintiffs are being displaced as a result of “other displacing activity, as the public entity may 27 prescn'be under a program or project undertaken by a public entity.” Section 7260(c)(ii). The City 28 admits that it is displacing the Docktown residents for a public purpose. (Opposition at 9:9-11.) 2 1290278v1 PLAINTlFFS’ REPLY IN SUPPORT OF ITS MOTION FOR INJUNCTIVE RELIEF During the deposition of the City’s PMK, the City admitted that the residents were being displaced to benefit the public as part of a City program to end residential uses at Docktown. (Citation to be provided once available.) The City is intentionally delaying a decision on what to do with Docktown until it has gotten rid of the unwanted residents in an obvious effort to avoid paying legal relocation benefits. However, the City admits that it is currently losing about $200,000 per year on the marina and also admits that the live-aboard residents are'the ones who pay higher rents. It also admits that it has lost — and been unable to replace — a significant number of recreational boaters. (Citation to be provided once available.) If it cannot fill the recreational slips currently available, it is difficult to believe that about seventy new recreational users will suddenly show up wanting to rent‘slips. The 10 City will not reasonably continue to operate this marina if it is losing over a million dollars a year. LLP 11 Defendant, as it did on demurrer, contends that the Stephens v. Per_ry is directly on point. The MCGUIRE 12 Court has already rejected that argument. (Exh. “A” hereto.) FLOOR 92103 11TH 13 Defendant contends that Plaintiffs’ exclusive remedy is a writ of mandate. However, it has 236-9653 CALIFORNIA AVENUE, (619)236-9363 9) 14 failed to make a legal showing of that, citing to a case, Mountain View v. Superior Court, 54 BARTOLOTTA (61 FIFI'H DIEGO, FAX 15 Cal.App.3d 72 (1975), that in actuality holds that in an eminent domain case, a property owner SAN 2550 16 must file a writ. Additionally, Plaintiffs are not seeking “damages” with respect to the CRAL claim, THORSNES 17 they are seeking legally required relocation assistance. Furthermore, a government claim is not 18 required until a claim is ripe. Because relocation benefits are required to be paid before a resident is 19 displaced, a claim would not be required until the residents are displaced without being provided 20 benefits, a travesty that Plaintiffs are attempting to prevent by filing this motion. 21 Defendant contends that Plaintiffs cannot prove inverse condemnation because they are only 22 being evicted. This disregards the fact that these are not simple evictions. Plaintiffs’ vessels have 23 been converted into floating homes which cannot be moved or used in another location. Eviction of 24 the Docktown residents will result in the deprivation of their property — literally, the property in 25 which they have lived for years. 26 Defendants contend that Plaintiffs have not shown irreparable injury. This would be 27 laughable if it were not so tragic. The City knows that Plaintiffs cannot obtain comparable 28 replacement housing because the average rents in the area vastly exceed the marina rents that 3 1290278v1 PLAINTH‘FS’ REPLY IN SUPPORT OF ITS MOTION FOR INJUNCTIVE RELIEF Plaintiffs are paying. (Citation to be provided when available.) Children will be forced out of their schools. Families will be forced to move to dangerous neighborhoods. People will be homeless or living in their cars. Payment of appropriate relocation benefits would avoid all of this harm. The City, by contrast, will not suffer any harm if it is required to follow the law before displacing these residents. Finally, there is absolutely no basis for a bond in this case because the City will not be financially harmed. In fact, it will benefit because the Plaintiffs will continue to pay rent that would ‘ otherwise not be paid. Dated: August 17, 2018 THORSNES BARTOLOTTA MCGUIRE LLP 10 LLP 11 VINCENT J. BARTOLOTTA, JR, ESQ. MCGUIRE 12 KAREN R. FROSTROM, ESQ. moon 92103 NEAL A. MARKOWITZ, ESQ. 13 Attorneys for Defendants 11m CALIFORNIA 236-9363 236—9653 ANNA AVENUE ASSOCIATES, LLC, ET AL. AVENUE 14 (619) BARTOLOTTA (619) FIFI'H DIEGO, FAX 15 SAN 2550 16 THORSNES 17 18 19 20 21 22 23 24 25 26 27 28 4 1290278vl PLAINTIFFS’ REPLY IN SUPPORT OF ITS MOTION FOR INJUNCTIVE RELIEF EXHIBIT "A" ‘ EEGEW "3‘3 ”’2 my. a 202a saw marge canary my a r 2818 GM at the: Same? {farm 'm » 5,139: . m Cifiag SUPERIOR COURT OF THE STATE OF CALIFORNIA ' COUNTY OF SAN MATEO ‘ FRANCESCA FAMBROUGH, ' et al., Civil No. 17CIV05387 CLASS ACTION Plaintiffs, Assigned for All Purposes to vs. Hon. Marie S. Weiner, Dept. 2 REDWOOD CITY, CASE MANAGEMENT ORDER #3 Defendant. On April 18, 2018, a Case Management Conference. was held and hearing was held on Defendant’s Demurrer to the First Amended Complaint in Department 2 of this Court before the Honorable Marie S. Weiner. Karen Frostrom of Thorsnes Bartolotta McGuire LLP appeared on behalf of Plaintiffs, and Kevin Siegel of Burke Williams & Sorensen LLP appeared on behalf of Defendant Redwood City. Upon due consideration of the briefs presented, and the oral argument of counsel for the parties, and having taken the matter under submission, IT IS HEREBY ORDERED as follows: 1. Defendant’s Demurrer to the Plaintiffs’ First Amended Complaint in its entirety on the basis that the claims are not subject to class action certification is l DENIED. Defendant has attempted to turn this Demurrer into a substantive motion for denial of class certification and a substantive motion for summary judgment and summary adjudication of issues - which this Court rejects procedurally. “Class certification is generally not decided at the pleading stage of a lawsuit.” In re BCBG Overtime Cases (2008) 163 Cal.App.4”‘ 1293, 1298. The “preferred course is to defer decision on the propriety of a class action until an evidentiary hearing has been held on the appropriateness of class litigation.” Rosev. Medtronics Inc. (1980) 107 Cal.App.3d 150, 154; AVBCBG at p. 1298;M:Canon,-.U.SA4 Inc. v-._Superior Court~.(l998) 68 Cal.AppAth 1, 5. This Court deems that class certification is more appropriately determined in this case by motion for class certification, not demurrer based heavily upon Defendant’s efforts to interj ect facts via “judicial notice”. 2. Defendant’s Demurrer to the First Amended Complaint as to the first cause of action for violation of federal and state statutes providing relocation assistance to displaced persons, on the basis that it fails to state facts sufficient to constitute a cause of action, is OVERRULED. Defendant’s citation to ”Stephens v. Fem (1982) 134 Cal.App.3d 7.48 is not of assistance at the pleading stage. Stephens pertained to appeal of dismissal of a petition for writ when the trial court granted summary judgment in favor of defendants — which makes no procedural sense in the first place, as a petition for writ of mandate must be based upon administrative record, and is not generally subject to adjudication by summary judgment under C.C.P. Section 437C. Uniquely iniStephens, the parties stipulated to the facts —— not so, here. The decision by the Court of Appeal was very fact-based — and thus its application to our case is not established because the pleadings must be accepted as true at this point. As for the case of ,Bozaich v. State of ,California (1973) 32 Cal.App.3d 688, the Court of Appeal held that class action) allegations in the complaint were appropriate stricken (not demurrer) because the Plaintiffs’ cause of action seeking relocation expenses from an eminent domain situation required administrative exhaustion by the filing of a government claim pre-lawsuit, and that the named plaintiffs had complied but determination as to each member of the Class would be individual and thus individual issues would predominate. The requirement of an administrative claim process pre—trial for statutory right of reallocation benefits no longer exists (as the law was changed), so the holding and the underlying, considerations do not apply here. 3. Defendant’s Demurrer to the First Amended Complaint as to the second cause of action for inverse condemnation, on the basis that it fails to state facts sufficient to constitute a cause of action, is OVERRULED. Plaintiffs have pleaded that the subject property is privately—owned. Defendant asserts that it is public land. This is not subject to adjudication on demurrer. Further, Defendant’s reliance upon County of Venture v. {Channel IslandsMarina Inc., (2008) l59 Cal.App.4‘h 615 is premature at this pleading stage. That decision considered the case after a complete trial on the merits, including a court trial of issues of law and a jury trial on damages. The Court of Appeal held that its decision would be the same whether considered under the claim for inverse condemnation or under the claim for breach of lease, and reversed on the ground of no damages and thus no right to judgment. '4. Defendant’s Demurrer to the First Amended Complaint as to the third cause of action for declaratory relief, on the basis that it fails to state facts sufficient to constitute a cause of action, is SUSTAINED WITHOUT LEAVE T O AMEND. The issues raised in the “claim” for “declaratory relief” are not properly adjudicated by Complaint for Declaratory Relief, but rather were subject to adjudication by Petition for Writ of Mandate. Defendant’s Special Dcmun‘er to the third cause of action on the basis of lack of necessary party is MOOT. 5. Plaintiffs” and Defendant‘s Requests for Judicial Notice are DENIED; except that Defendant’s Request for Judicial Notice Exhibit A, ofa State statute is GRANTED. Most of this is factual evidence, not proper ‘for consideration on demurrer. Some pertains to other cases, which is basically irrelevant for purposes of this demurrer, which was not brought on the basis of “other action pending", or res judicata, or collateral estoppel. 6, Defendant shall file and serve its Answer to the First Amended Complaint on or before May 17, 2018. 7. A Case Management Conference is set for Wednesday, June 6, 2018 at 2:00 p.m. in Department 2 of this Court, located at Courtroom 2E, 400 County Center, Redwood City, California. 8. In anticipatiori of the Case Management Conference, counsel for the parties should be prepared to discuss at the hearing and file written case management - conference statements (in prose and details, no! using the standardized Judicial Council form) with a courtesy cepy delivered directly to Department 2 on or before May 30, 2018, as to the following: a. Status of Discovery, including the initial production of documents by all parties, and deposition of the Plaintiil‘s; b. Status of Settlement or Mediation; ” Proposed hearing datet‘s) and briefing schedule on Plaintiffs Motion for Class Certification, and what specific discovery is needed before filing the motion and/or the opposition; (1. Any other anticipated motions and proposed briefing schedule; 6. Setting of next CMC date; and f. Any other matters for which the parties seek Court ruling or scheduling. DATED: May 3, 2018 ' flfl’7 HON. MARIE 's. WEINER A JUDGE or THE SUPERIOR COURT SERVICE LIST As of February 2018 MICI--1ELLE MARCI—IETTA KENYON KEVIN SIEGEL DYLAN CROSBY BURKE WILLIAMS & SORENSON LLP 1901 Harrison Street, Suite 900 Oakland, CA 94612-3501 (510) 273-3501 VERONICA RAMIREZ MARY ELEONOR IGNACIO CITY ATTORNEY FOR REDWOOD CITY 1017 Middlefield Road Redwood City, CA 94063 (650) 780-7200 VINCENT BARTOLOT’I‘A JR. KAREN FROSTROM NEAL MARKOWITZ DAVID KLEINFELD , THORSNES BARTOLOTTA MCGUIRE LLP 2550 Fifth Avenue, 1 1th Floor San Diego, CA 92103 (619) 236—9363 AFFIDAVIT 0F MAILING @é @RSEQ men SAN marge @30n CASE NUMBER: 17CIV05387 - am e 4 20,53 FRANCESCA FAMBROUGH, et 31 VS. REDWOOD CITY DOCUMENTS: CASE MANAGEMENT ORDER #3 I declare, under penalty of perjury, that on the following date I deposited in the United State Post Office Mail Box at Redwood City, California a true copy of the foregéing document, enclosed in an envelope, with the proper and necessary postage prepaid ‘ thereon, and addressed to the following: MICHELLE MARCHETTA KENYON KEVIN SIEGEL DYLAN CROSBY BURKE WILLIAMS & SORENS ON LLP 1901 Harrison Street, Suite 900 Oakland, CA 9461 2-3 501 VERONICA RAMIREZ MARY ELEONOR IGNACIO CITY ATTORNEY OF REDWOOD CITY 1017 Middlefield Road Redwood City, CA 94063 VINCENT BARTOLOTTA JR. 3, KAREN FROSTROM NEAL NIARKOWITZ DAVID KLEINFELD THORSNES BARTOLOTTA MCGUIRE LLP 2550 Fifth Avenue, 1 1th Floor San Diego, CA 92103 Executed on: May 4, 2018 at Redwood City, California RODINA CATALANO . CLERK OF THE SUPERIOR COURT By: Terri Maragoulas Deputy Clerk