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James J. Huang (309476)
2310 Homestead Road, PO. 120
Los Altos, CA 94024
(408) 892-4525
iamesj.huang.0328@2mail.com
Attorney for Plaintifl
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN MATEO
$9:c frigid
Motion for Class Certification
914419
i,
CHIAHO WU, an individual, on behalf of Case No: 17-CIV -05 749 I
those similarly situated, 3
L_ __ _> _ __
II II II I" "I"
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10 Plaintiff 3 PLAINTIFFS’ NOTICE OF MOTION
) AND MOTION FOR CLASS
ll .
v. CERTIFICATION; MEMORANDUM OF
POINTS & AUTHORITIES IN SUPPORT
12 THEREOF
OFFICER “A. WONG”, a.k.a. “ID. No. ,
l3 0027”, individually and as a law enforcement ) Case Filed: December 15, 2017
officer in the San Bruno Police Department; ell-:5
14 JOSE BENDOLA, an employee of ACTION 1T3?te‘_ Mamh 27, 2°18
. . . ime. 9.00 am
15
TOWING, a Cahfomia corporation, d.b.a., San Dept: Law and Motion Ila
Bruno Auto Center;
l6 DENNIS PERRY, an employee of ACTION Pursuant to CCP § 382; C-R-C- 3-764 neg;
TOWING;
17 “DRIVER 62”, an employee of COURTESY
TOW, a California corporation;
18
POLICE CHIEF ED BARBERINI,
19 individually and as Chief of Police of the San
Bruno Police Department;
20 SAN BRUNO POLICE DEPARTMENT, a
public entity;
21
CITY OF SAN BRUNO, a municipal entity;
22 and, DOES 1—25, inclusive,
23 Defendants
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Plaintiff s Motion for Class Certification
_1_
TO THE COURT AND DEFENDAN TS AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on March 27, 2018 at 9:00 am in the Law and Motion
Department of the above-entitled Court located at 400 County Center, Redwood City, CA 94063,
Plaintiff Chiaho Wu will move this Court for an order certifying the instant action to proceed as
a class action pursuant to California Code of Civil Procedure § 382.
The Motion is based on the following grounds:
(1) The proposed class is ascertainable;
(2) The proposed class is sufficiently numerous to warrant prosecution as a class
action;
10 (3) The proposed class members have an adequate community of interest to warrant
ll prosecution as a class action;
12 (4) The claims of the class representative plaintiff are typical of the claims of the
13 other class members;
14 (5) Both the representative plaintiff and his counsel are adequate for the purposes of
15 class certification; and
16 (6) There are factual and legal issues that are common to the class as a whole and/or
17 the specified subclasses, sufficient in importance so that their adjudication on a
18 class basis is a superior means of proceeding in this instance both for the litigants
19 and the Court.
20 California Rules of Court, rule 3.1308. A tentative ruling on a law and motion matter may be
21 obtained by telephoning (650) 261-5019 after 3:00 pm on the first court date immediately
22 preceding the hearing on the motion or by accessing the court’s website at:
23 http://www.sanmateocourt.org/directorphp?filename=/lamnotion/alltemules/php.
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California Rules of Court, rule 3.1308(a)(1). Parties intending to appear on the matter shall
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notify the Law and Motion Department or the department hearing the case and state their intent
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to appear. Parties shall follow the instruction as directed on the telephone Tentative Ruling
27
notification message or on the Court’s website.
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Plaintiffs Motion for Class Certification
_2_
The Motion is based on this Notice of Motion, the accompanying Memorandum of Points
and Authorities and the attached Declaration, as well as the exhibits attached thereto, the Court’s
file in this matter, and such further evidence and argument as may be heard by the Court.
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Plaintiff 5 Motion for Class Certification
_3_
TABLE OF AUTHORITIES
Cases
Brewster v. Beck, No. 15-55479 (June 21, 2017, 9th Cir.) ............................................................. 5
Brinker Restaurant Corp. v. Superior Court (2012), 139 Cal.Rptr.3d 315 .................................. 14
Bufil v. Dollar Financial Group, Inc. (2008), 162 Cal.App.4th 1193 .......................................... 16
Classen v. Weller (1983), 145 Cap.App.3d 27 ............................................................................. 18
Hebbard v. Colgrov (1972) 28 Ca1.App. 3d 1017 ........................................................................ 17
'
McGhee v. Bank ofAmerica (1976), 60 Cal.App.3d 442 .................................. ........................... 18
Richmond v. Dart (1981), 29 Ca1.3d 462 ...................................................................................... 18
10
Sav—On Drug Stores, Inc. v. Superior Court (2000), 34 Cal.4th 319 ............................................ 15
ll Tyson Foods, Inc. v. Bouaphakeo et al., 577 U.S.___ (2016) ........................................................ 16
12
Statutes
13
California Business and Professions Code §§ 17200 et seq. .......................................................... 7
14
California Vehicle Code § 22852 .......................................................................................... passim
15
16
California and U.S. Constitutional Provisions
17
California Constitution, Art. I, § VII .............................................................................................. 7
18
California Constitution, Art. I, § XVII ........................................................................................... 7
19
U.S. Constitution, Amend. V .......................................................................................................... 7
20
U.S. Constitution, Amend. VIII ...................................................................................................... 7
21
U.S. Constitution, Amend. XIV, § I ............................................................................................... 7
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Plaintiff 3 Motion for Class Certification
_4_
Plaintiff hereby moves for class certification based on the following:
I. INTRODUCTION
Plaintiff, on behalf of others similarly situated, brings this action as a result of
Defendants’, including the City of San Bruno (“City”) and San Bruno Police Department
‘
(“SBPD”) and any affiliated parties therewith, long-standing violations of the motoring public’s
California constitutional rights and Constitutional rights, California’s Unfair Competition Law,
and the SBPD’s own failure to provide the required notices under the Vehicle Code.
The Plaintiffs and the public’s vehicles have been subject to unconstitutional mandatory
1
30-day impounds by the City and SBPD, depriving them of at least their right against
10 unreasonable seizures, against deprivation of property without due process, and against the right
ll to be free from excessive fines. Additionally, parties acting as agents of the City and SBPD, have
12 committed unfair, unlawful, and/or fraudulent acts that prejudice the public and the vehicle
fl
13 enforcement scheme of the City and the SBPD.
14 Any police impound is justified “only to the extent that the government’s justification
15 holds force. Thereafter, the government must ceasethe seizure or secure a new justification.”
16 Brewster v. Beck, No. 15-55479 (June 21, 2017, 9th Cir.) at 7 (holding that a mandatory 30-day
'
17 violates the Fourth Amendment when the government does not present new circumstances
18 justifying the continued impound). Thus, the SBPD has, by way of statute or policy discretion,
19 violated Plaintiff’s right to be free from unreasonable seizures by outright imposing a 30-day
20 impound on Plaintiffs three (3) vehicles. See Verified Complaint 1H] 43 -5 1.
21 Additionally, the SBPD and City, and affiliated parties therewith, have deprived the
22 public of their right to due process and to be free from excessive fines under the Constitution and
23 the California Constitution by failing to provide the requisite poststorage notice under California
24 Vehicle Code section 22852(b) for vehicles impounded on public property.
25 II. FACTS AND ALLEGATIONS
26 A. Over A Decade of Dealings — SBPD and Towing Contractors
27 The San Bruno Police Department and the City of San Bruno have contracted with
28 several towing companies (“Contractors”) since at least July 1, 2006 until April 6, 2018 to
Plaintiffs Motion for Class Certification
n5_
provide official tow services for the City and the SBPD. Each of the towing companies signed an
‘Agreement For Official Police Tow Services’ (“OPTS”) on substantially similar terms and
conditions. (See Verified Complaint Exhibits A & B; and Exhibits A, B & C attached hereto)
For a period of at least 12 years, the City and SBPD have approved of and relied on the
services of the Contractors for citywide Vehicle Code enforcement and evidentiary seizures.
According to the City, “[t]he public health, safety and welfare require that hazards to vehicle
movement and traffic safety be removed from. the City streets as soon as it is possible.” (See
Verified Complaint — Exhibit A, Sec. 8, “Any [p]olice tow shall not incur storage costs in
excess of three (3) days”). Under the terms of OPTSs: (1) no financial consideration is furnished
10 to Contractors from the City or SBPD from Code enforcement actions, (2) the SBPD are named
ll as insurance beneficiaries (See Verified Complaint Exhibit A, Sec. 19) , (3) any vehicle release
12 must be approved by the SBPD in writing (See Verified Complaint Exhibit A, Sec. 8), and (4)
13 Contractors are allowed to complete their own towing reports, or form CHP—l80, for the SBPD
14 to sign off before any tows (See Verified Complaint Exhibit A, Sec. 9B). The City and SBPD
15 have effectively delegated their duties and tasks under the Vehicle Code to Contractors,
l6 rendering them state actors of the City and SBPD.
17 Since the City and SBPD do not have the needed expertise, skills, equipment, and/or
18 facilities to conduct mass towing and storage required of a vehicle enforcement scheme, there is
19 a public policy rationale for the City and SBPD to retain Contractors’ services. Likewise,
20 Contractors run for-profit businesses and require incentive to continue providing official towing
21 services. Since the terms of OPTSs do not provide compensation to Contractors under vehicle
22 enforcement actions, the only source of income to Contractors from vehicle enforcement
23 impounds would be on subsequent towing and storage fees, release fees, and any lien sales.
24 For purposes of this motion, since Contractors are not named defendants in the
25 underlying verified complaint filed December 15, 2017 and since Contractors performed the
26 following acts under contract or direction of the SBPD as its agents, the City and the SBPD shall
27 be the tentatively responsible parties for Contractors’ alleged acts or omissions alleged herein.
28 B. SBPD’s Illegal and Unconstitutional 30-Day Vehicle Impound
Plaintiff 5 Motion for Class Certification
_6_
To its Contractors’ benefit and to expand its officers’ code enforcement powers, the
SBPD has adopted an internal practice or policy of imposing 30—day impounds to retain
Contractors’ services, compounding storage fees for the Contractors to collect and aiding lien
sales against vehicles whose owners who are unable to pay the Contractors’ towing and storage
fees. (Verified Complaint Exhibit G, 1] 1; Verified Complaint Exhibit H, 1] 1; Verified Complaint
Exhibit R, with ’30 DAY’ captioned). As of at least July 7, 2017, the towing fee per vehicle is
$240.00, and the storage fee per diem is $75.00 in the City of San Bruno. (See Verified
Complaint Exhibit T (“Master Fee Schedule”)). A mandatory 30-day impound amounts to at
least $2,250.00 in storage fees and $2,490.00 in total fees per vehicle.
10 The California Vehicle Code explicitly provides for vehicle owners’ due process after
11 tows by giving them “the opportunity for a poststorage hearing to determine the validity of the
12 storage” under section 22852(a). Under Vehicle Code section 22852(b), whenever an authorized
13 member of a public agency directs the storage of a vehicle,
14 A notice of the storage shall be mailed or personally delivered to the registered and
legal owners within 48 hours . . . and shall include all of the following information:
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(1) The name, address, and telephone number of the agency providing the notice.
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(2) The location of the place of storage and description of the vehicle, which shall
if
include, available, the name or make, the manufacturer, the license plate number, and
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the mileage.
(3) The authority and purpose for the removal of the vehicle.
18. (4) A statement that, in order to receive their poststorage hearing, the owners, or their
agents, shall request the hearing in person, writing, or by telephone within 10 days of the
19 date appearing on the notice.
20 Contractors, the SBPD, and the City have failed to mail or deliver the required notices to
21 Plaintiff and those similarly situated under the above Vehicle Code subsections (l)—(4).
22 The mandatory 30—day impound practice or policy of the SBPD not only circumvents the
23 Vehicle Code by obviating the required poststorage notice, but also it requires Plaintiff and those
24 similarly situated to pay for a filll 30—day storage fees without any notice of such storage, nor any
25 opportunity to contest the storage before the 30—dav period. After the 30—day impound is over,
26 Plaintiff and those similarly situated receive a Notice of a Pending Lien sale for the full fee of
27 30-day’s storage or more (See Verified Complaint Exhibits N, O & P), (1) without knowledge
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Plaintiff’ 5 Motion for Class Certification
_7_
that their vehicles were previously towed and where they are stored, and (2) without opportunity
to contest or resolve any issues before the impound period.
This policy represents a systematic Due Process deprivation and an Excessive Fine abuse
under the Fifth, Eighth, and Fourteenth Amendments. This policy fiirther violates California
Constitution, Article 1, Sections 7 and 17, and implicates violations of California law.
C. Contractors’ Systematic Intentional or Negligence Overcharging
A number of individuals, including the owners, operators, employees, and/or agents of
Contractors (“Contractor Agent(s)”) systematically, whether negligently or not, are overcharging
or attempting to overcharge the Plaintiff and those similarly situated by:
10 (l) exceeding the City’s towing fee schedule, e.g., charging $240.00 per tow instead of
ll $225.00 as defined by the City’s published Master Fee Schedule (Verified Complaint
12 Exhibit T);
13 (2) exceeding maximum fees for a 3-day impound set forth in the OPTSs (See Verified
14 Complaint Exhibits A & B, ; and
15 (3) charging for storage even in excess of the 30 days imposed by the SBPD.
16 Each of the above acts (1)—(3) represent an “unlawful, unfair, or fraudulent business act or
17 practice” under California Business and Professions Code sections 17200 et seq. Plaintiff has not
18 discerned the complete identities of all the Contractor Agent(s), and may amend this motion or
19 any relevant pleadings to include such parties, including any Contractors.
20 D. Current and Discoverable Evidence of 30—Day Impounds
21 In 2017, on consecutive days, July 6 and July 7, three (3) of Plaintiff’s vehicles were
22 impounded for mandatory 30-day periods, with two officers (Defendant Officer A. Wong and
23 Officer J. Brandenburg) directing these impounds (See Verified Complaint Exhibits C, D & R).
24 The Court may find that a 30-day impound practice or policy exists in the SBPD, by the fact that
25 two (2) of the SBPD’s officers coincidentally happened to exercise their individual discretion to
26 give 30-day impounds on three vehicles (3) on consecutive days. Accordingly, Plaintiff proposes
27 classes and subclasses based on this unconstitutional practice or policy. Additionally, evidence of
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Plaintiffs Motion for Class Certification
_8_
30-day impounds and the identity of class members, can easily and readily discerned by the
following steps:
(1) Submitting Public Records Act requests to the City and SBPD to identify all police—
initiated tows, Contractors and/or Contractor Agents, and the relevant span of their
enforcement actions;
(2) Serving third-party subpoenas on identified Contractors and/or Contractor Agents for
business records of police tows during the relevant span, including any Notices of
Pending Lien Sale (including any third—party lien companies and the DMV);
(3) Opening discovery on the City and the SBPD for police records during the relevant
10 span;
11 (4) Identifying any documents specifically marked or indicating a 30—day impound; and
12 (5) Identifying any Notices of Pending Lien Sale with a storage period of 30 days or
l3 longer, that do not have an accompanying poststorage notice for the same
14 enforcement action.
15 Steps (4) and (5) specifically identifies which police tows are 30—day impounds, while
l6 steps (1)-(3) shows the complete documentary extent of the SBPD-Contractor enforcement
17 operations.
18 E. Current and Discoverable Evidence of Failure to Provide Poststorage Notice
19 According to the Declaration of Pat Sweeney (Sweeney Declaration in Support of Perry’s
20 Demurrer, 1] 4) and of Marty Eidsvik (Eidsvik Declaration in Support of Driver 62’s Demurrer, 1[
21 4), at least two (2) third-party lien-service providers assert that they followed the appropriate
22 notice requirements of pending lien sales for Plaintiff 3 vehicles. The Court will find that
23 nowhere in the Declarations the fact that they provided to Plaintiff the required poststorage
24 notice under Vehicle Code section 22852(b). Plaintiff can also testify to his own lack of
25 poststorage notice.
26 The same steps above for 30-day impounds would be used to ascertain class members,
27 and the absence of poststorage notices in the Contractors’ and the lien-service providers’
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Plaintiff’s Motion for Class Certification
_9_
business records, such as the nonexistence of poststorage notice mailings on any certificates of
service.
F. Current and Discoverable Evidence of Contractors’ Overcharging
Plaintiff received Notices of Pending Lien Sale for all three (3) of his vehicles:
(1) On the notice of lien sale for his Airstream, Contractor Action Towing attempted to
charge Plaintiff $240.00 in towing fees ($15.00 above the $225 .00 Master Fee Schedule),
and for storage between 07/06/2017 and 08/ 10/ 17, which is 36 days—6 days over the 30-
day impound direction of the SBPD. (See Verified Complaint Exhibit N)
Even under the specific (and unconstitutional) direction of the SBPD, Action Towing
10 attempted to overcharge Plaintiff for 6 day’s excess of the 30-day impound and an excess towing
ll fee, totaling 25% for the release of his Airstream.
12 (2) On the notice of lien sale for his Utility Trailer, Contractor Courtesy Tow attempted to
l3 charge Plaintiff $240.00 in towing fees ($15 .00 above the $225 .00 in the Master Fee),
14 and for storage between 07/07/2017 and 08/14/17, which is 38 days—8 days over the 30-
15 day impound direction of the SBPD. (See Verified Complaint Exhibit 0)
16 Even under the specific (and unconstitutional) direction of the SBPD, Action Towing
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fee, totaling
Exhibit P)
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attempted to overcharge Plaintiff for 8 day’s excess of the 30-day impound and an excess towing
for the release of Plaintiff’s Toyota Tundra. (See Verified Complaint
20 (3) On the notice of lien sale for his Toyota Tundra, Contractor Courtesy Tow attempted to
21 charge Plaintiff $240.00 in towing fees ($15 .00 above the $225.00 Master Fee Schedule),
22 and for storage between 07/07/2017 and 08/14/17, which is 39 days—9 days over the 30—
23 day impound direction of the SBPD.
24 Even under the specific (but unconstitutional) direction of the SBPD, Contractor
25 Courtesy Tow attempted to overcharge Plaintiff for 9 day’s excess of the 30—day impound and an
26 excess towing fee, totaling $840.00 for the release of his Toyota Tundra.
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Plaintiffs Motion for Class Certification
_ 10 _
(4) In total, Contractors have attempted to overcharge Plaintiff $1,920.00 for the release of
his vehicles even under the unconstitutional 30—day impound practice of policy of the
i
SBPD. ,
(5) The above figures for Contractors’ overcharge may be increased by W per vehicle
based on the lien sale preparation fee, since Contractors failed to provide Plaintiff notice
of a poststorage hearing before mailing Plaintiff the Notice of Pending Lien Sale.
The same steps above for 30-day impounds would be used to ascertain class members, and
the overcharge attempts would be apparent from the face of any Notices of Pending Lien Sale
when compared to the City’s fee schedule and any corresponding documented 30—day impounds.
10 III. PROPOSED IMPOUND AND NON-NOTICE CLASSES
11 Plaintiff seeks certification based on several subclasses that each reflect the nature of
12 claims and the respective class—wide practices or policies of Defendants City and SBPD, and/or
13 Contractors. Certain subclasses represent particularly vulnerable members, who have suffered a
14 higher relative harm by such practices and policies. As such, certain subclasses are intended to
15 vindicate the constitutional rights of those least capable of asserting them.
16 First, Plaintiff proposes that there are two overall classes:
17 (1) one for individuals whose vehicle on public property received a mandatory 30-day
18 impound, or a period in excess of 3 days, that lacked further justification beyond the third storage
19 day, which represents the time storage fees should have ended under the terms of the SBPD’s
20 own OPTSs, and
21 (2) one for individuals whose vehicle were impounded by the SBPD, and who failed to
22 receive the required poststorage notice under Vehicle Code section 22852(b). This class and its
23 respective subclasses may be applicable to or limited to Contractors upon proof that Contractors
24 breached a duty to the SBPD or the City, under contract or otherwise, by failing to provide such
25 poststorage notice.
26 Plaintiff further proposes additional subclasses, as described below:
27 A. Impound — Correctible Subclass
28
Plaintiff 5 Motion for Class Certification
_ 11 _
A]
\J
ALL individuals Whose vehicle on public property received a mandatory 30—day
impound, or a period in excess of 3 days, from the SBPD that lacked further justification
beyond the third storage day, and whose reason for impound was correctible within the
30-day period.
B. Impound — Property Damage and Property Disposition Subclass
ALL individuals whose vehicle on public property received a mandatory 30-day impound
from the SBPD, or a period in excess of 3 days, that lacked further justification beyond
the third storage day, and whose vehicles and/or personal items therein were damaged,
missing, and/or disposed of, such as by lien sale, while in the control or custody of the
10 Contractors and/or the SBPD.
11 C. Impound ——
Payor Subclass
12 ALL individuals whose vehicle on public property received a mandatory 30-day impound
13 from the SBPD, or a period in excess of 3 days, that lacked fiirther justification beyond
14 the third storage day, and who paid any amount to Contractors and/or the SBPD for
I
15 storage fees in excess of the fee amount required for 3 storage days.
16 D. Impound — Work Vehicle Subclass
17 ALL individuals whose vehicle on public property received a mandatory 30-day impound
18 from the SBPD, or a period in excess of 3 days, that lacked further justification beyond
19 the third storage day, and whose vehicle’s use was reasonably related, at the time of
20 impound, to generate income.
21. E. Impound — Residence Vehicle Subclass
22 ALL individuals whose vehicle on public property received a mandatory 30-day impound
23 from the SBPD, or a period in excess of 3 days, that lacked further justification beyond
24 the third storage day, and Whose vehicle was that individual’s primary residence at the
25 time of impound.
26 F. Impound — Indigent Subclass
27 ALL individuals whose vehicle on public property received a mandatory 30-day
28 impound, or a period in excess of 3 days, from the SBPD that lacked further justification
Plaintiff” 5 Motion for Class Certification
_ 12 _
a ~/ .__1
beyond the third storage day, and whose annual income is at or below any local, state, or
federal measure, standard, or guideline for poverty.
G. Non-notice — Correctible Subclass
ALL individuals whose vehicle received an impound from the SBPD to whom mailing or
delivery of a poststorage notice was not given by either the SBPD or the party to whom
SBPD delegated giving such notice, and whose vehicle’s use was reasonably related, at
the time of impound, to generate income, and whose reason for impound was correctible
within the 30-day period.
H. Non-notice — Property Damage and Property Disposition Subclass
10 ALL individuals whose vehicle received an impound from the SBPD to whom mailing or
11 delivery of a poststorage notice was not given by either the SBPD or the party to whom
12 SBPD delegated giving such notice, and whose vehicle’s use was reasonably related, at
13 the time of impound, to generate income, and whose vehicles and/or personal items
14 therein were damaged, missing, and/or disposed of, such as by lien sale, while in the
15 control or custody of the Contractors and/or the SBPD.
16 I. Non-notice — Payor Subclass
'17 ALL individuals whose vehicle received an impound from the SBPD to whom mailing or
18 delivery of a poststorage notice was not given by either the SBPD or the party to whom
19 SBPD delegated giving such notice, and who paid any amount to the SBPD or
20 Contractors for the release of such vehicle.
21 J. N on—notice — Work Vehicle Subclass
22 ALL individuals whose vehicle received an impound from the SBPD to whom mailing or
23 delivery of a poststorage notice was not given by either the SBPD or the party to whom
24 SBPD delegated giving such notice, and whose vehicle’s use was reasonably related, at
25 the time of impound, to generate income.
26 K. N on—notice — Residence Vehicle Subclass
27 ALL individuals whose vehicle received an impound from the SBPD to whom mailing or
28 delivery of a poststorage notice was not given by either the SBPD or the party to whom
Plaintiffs Motion for Class Certification
_ 13 _
SBPD delegated giving such notice, and whose vehicle was that individual’s primary
residence at the time of impound.
L. Non-notice — Indigent Subclass
ALL individuals whose vehicle received an impound from the SBPD to whom mailing or
delivery of a poststorage notice was not given by either the SBPD or the party to whom
SBPD delegated giving such notice, and whose annual income is at or below any local,
state, or federal measure, standard, or guideline for poverty.
IV. PROPOSED OVERCHARGE CLASSES
Plaintiff seeks certification based on several classes that each reflect the nature of claims
10 and the respective class-wide practices or policies of Contractors. These classes assume that
11 -
Contractors were acting in good faith, following the instruction of the SBPD to tow and store the
12 public’s vehicles for 30-days in order to comply with the terms of their respective OPTS
l3 agreements, and any overcharge was due to inadvertence or neglect, and was not intentional or
14 otherwise malicious or oppressive.
15 Plaintiff proposes that there are three overall classes:
16 A. Tow Overcharge Class
17 ALL individuals whose vehicles received an impound directed by the SBPD, who were
18 charged a towing fee by Contractors in excess 'of fee limits prescribed by the City.
19 B. Prescribed Period Storage Overcharge Class -
20 ALL individuals whose vehicles received an impound directed by the SBPD, who were
21 charged a storage fee by Contractors in excess of the period, directly prescribed by the
22 SBPD, notwithstanding any OPTS fee limits.
23 C. Contractual Period Storage Overcharge Class
24 ALL individuals whose vehicles received an impound directed by the SBPD, who were
25 charged a storage fee by Contractors in excess of the period prescribed under the terms of
26 Contractors’ OPTS.
27 V. CLASS CERTIFICATION SHOULD BE GRANTED
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Plaintiff’s Motion for Class Certification
_ 14 _
“Class actions have been statutorily embraced by the Legislature whenever ‘the question
[in a case] is one of common or general interest, of many persons, or when the parties are
numerous, and it is impracticable to bring them all before the court .. ..’” Brinker, 139
Cal.Rptr.3d at 327, (quoting CCP § 382). In order to prevail on a motion for class certification,
“[t]he party advocating class treatment must demonstrate the existence of an ascertainable and
sufficiently numerous class, a well-defined community of interest, and substantial benefits from
certification that render proceeding as a class superior to the alternatives.” Sav—On Drug Stores,
Inc. v. Superior Court (2000), 34 Cal.4th 319, 326. The ‘community of interest’ requirement
embodies three factors: (1) predominant common questions of law or fact; (2) class
10 representatives with claims or defenses typical of the class; and (3) class representatives who can
11 adequately represent the class” Id. at 326.
12 The ultimate question the element of predominance presents is whether the issues which
may be jointly tried, when compared with those requiring separate adjudication, are so
13
numerous or substantial that the maintenance of a class action would be advantageous to
the judicial process and to the litigants. The answer hinges on whether the theory of
14
recovery advanced by the proponents of certification is, as an analytical manner, likely to
15
prove amenable to class treatment. A court must examine the allegations of the complaint
and supporting declarations and consider whether the legal and factual issues they present
16 are such that their resolution in a single class proceeding would be both desirable and
feasible. As a general rule if the defendant’s liability can be determined by facts common
17 to all members of the class, a class will be certified even if the members must
individually prove their damages.
18
19 Brinker, 139 Cal.Rptr.3d at 327-28 (citations omitted).
20 In this case, Plaintiff challenges the legality and constitutionality of the City and the
21 SBPD’s practice or policy of imposing mandatory 30—day vehicle seizures, and the Contractors’
22 (or responsible parties’) systematic failure to provide a poststorage hearing to owners whose
23 vehicles were subject to a police-directed impound. Plaintiff’s theories of liability are supported
24 by existing and discoverable documentary evidence.
25 Defendants have asked this Court to demurrer on Plaintiff’s Verified Complaint.
26 However, the Brinker Court made clear at the class certification stage, the trial court should not
27 wade into the merits of plaintiffs’ claims. “The certification question is essentially a procedural
28 one that does not ask whether an action is legally or factually meritorious.” Id. at 392 (citations
Plaintiffs Motion for Class Certification
_ 15 _
omitted). Therefore, “[a] class certification motion is not a license for a free—floating inquiry into
the validity of the complaint’s allegations; rather, resolution of disputes over the merits of a case
generally must be postponed under after class certification has been decided.” Id.
In applying these standards to the present case, it is clear that Plaintiffs have satisfied all
of the elements necessary for class certification because common issues predominate.
A. The Class is Ascertainable
Ascertainability is determined largely be examining the class definition, the size of the
class, and the means available for identifying class members. See Bufil v. Dollar Financial
Group, Inc. (2008), 162 Ca1.App.4th 1193, 1207. “Class members are ascertainable where they
10 may be readily identified without unreasonable expense or time by reference to official records.”
ll Id. at 1206. Here, the proposed class and subclasses are ascertainable because the members have
12 been and will be identified through police reports, business records, and public documents
13 subject to disclosure.
14
V
B. Numerosity is, Satisfied
15 The numerosity requirement is met if the class that joinder of all members would be
16 impracticable. CCP § 382. The City has given Plaintiff’s attorney on November 6, 2017, in
17
'
response to a Public Records Act request, 142 pages representing a ‘press log of all calls for
18 service’ for the period between June 25, 2017 and July 30, 2017, a 36-day period. Plaintiff’s
19 attorney has reviewed all 142 pages and has determined, based on the incident description in the
20 log, that there are approximately at least 56 tows performed by the SBPD. By the terms of the
21 OPTSs, the SBPD has continuously used Contractors since July 1, 2016 to the present, to
22 performits vehicle code enforcement towing and storage.
23 This represents a class of approximately 56 members, and approximately 1.56 tows per
24 day directed by the SBPD. The number of strictly vehicle code Violation tows during this period
25 is 46, or 1.28 tows per day. Commonsense extrapolation and elementary multiplication will show
26 that from the date of the earliest OPTS produced by the City under a Public Records Act request,
27 July 1, 2006, to the date the Complaint was filed, December 15, 2017, there were approximately:
28 (days of OPTSs in effect) x (tows/day) = 4185 x 1.56 = 6,529 tows.
Plaintiff 5 Motion for Class Certification
_ 16 _
Alternatively, assuming strictly vehicle code violation tows, there have been
approximately, 4185 x 1.28 = 5 348 tows._See attached Declaration, 1] 6.
This straightforward methodology does not necessarily constitute statistical or
representative evidence where Plaintiff seeks “to introduce a representative sample to fill an
evidentiary gap created by failure to keep adequate records.” Tyson Foods, Inc. v.
Bouaphakeo et (11., 5 77 US. _, at 3 (2016). It is merely intended to show that: (1) there is a de
minimis sufficient class size of 46 members over a limited period, (2) the City and SBPD can
produce tens of thousands of pages of records to finalize the exact number, if requested under the
Public Records Act, without burdening them to do so before the class certification stage, and (3)
10 it is more likely than not that the number of class members will dramatically increase from 46
ll upon additional document production from the City, the SBPD, and Contractors.
12 With minimally approximately 46 class members over a small period. After simple
l3 extrapolating over the evidentiary span of the SBPD’s enforcement scheme involving the
14 Contractors, over 5,000 putative class members, with the total number to be finalized through
15 reports, records, and other documents, the proposed classes and subclasses are sufficiently
16 numerous. Joinder of all of these class members would be impracticable and a class—wide
l7 proceeding is preference because this number is so large. See Hebbard v. Colgrov (1972), 28
l8 Ca1.App. 3d 1017, 1030 (finding no minimum number to meet numerosity prerequisite and
19 accepting a class as few as 28 members). This case satisfies the numerosity requirement.
20 C. Common Questions of Law and Fact Predominate
21 Common questions of law and fact predominate this case. Since at least July 1, 2006, the
22 SBPD has contracted with different Contractors for them to provide official tow services as part
23 'of the City’s vehicle code enforcement scheme. Plaintiff’s vehicles were towed by the SBPD,
24 through two Contractors, as enforcement actions. The following facts, or part thereof, from
25 Plaintiff will predominate for class members:
26 (1) Each of Plaintiff s 3 vehicles received mandatory 30-day impounds from 2 different
27 SBPD officers within 2 days. This is unlikely isolated coincidence—this is evidence
28 of the SBPD’s practice or policy.
Plaintiff 3 Motion for Class Certification
_ 17 _
(2) Plaintiff did not receive any poststorage notice as required under Vehicle Code
section 22852(b) from the SBPD, the Citmr Contractors for any of his 3 vehicles.
This is unlikely isolated coincidence—this is evidence of a consistent business
practice.
(3) Thereafter, Contractors attempted to charge Plaintiff towing fees beyond the City fee
limits, attempted charge_to Plaintiff storage fees beyond the 30-days, and attempted to
charge Plaintiff total fees beyond the limits set forth in their respective OPTS. This is
unlikely coincidence—this is evidence of a consistent business practice.
Furthermore, the predominant issues in the case center around:
10 (1) the constitutionality of the outright imposition of a mandatory 30—day seizure without
ll continuing iustification for such seizure,
l2 (2) the illegality and constitutionality of any continuing seizure without hayinggiven the
l3 requisite posthearing notice under California law, and
14 (3) the overcharge of towing and storage fees by the SBPD’s Contractors.
15 The resolution of these issues is particularly amenable to class treatment since each issue
l6 implicates uniform policies or practices applied among all class members, as demonstrated by
17 police reports and business records, which evidences the consistency of the underlying illegal
18 and unconstitutional practices or policies.
19 D. Plaintiff Satisfies the Typicality Requirement
20 Typicality requires only that the proposed class representative’s interests in the action
21 signification similar to those of other members of the proposed class. The proposed
22 representative’s claim need not be identical to the claims of other members of the class; it is
23 enough that the representative is similarly situated, so that he or she will have the motive to
24 litigate on behalf of all class members. See Classen v. Weller (1983), 145 Cap.App.3d 27, 46.
25 Here, typicality is met. Plaintiff is an individual whose vehicles were impounded for 30 days by
26 the SBPD, who did not receive a poststorage notice, and who Contractors attempted to
27 overcharge as part of their vehicle enforcement as state actors of the SBPD and the City.
28 E. Plaintiff and his Counsel are Adequate Class Representatives
Plaintiffs Motion for Class Certification
_ 18 _
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“:9”. i’ James J. Huang (309476) 2310 Homestead Road, PO. 120 Los Altos, CA 94024 (408) 892-4525 iamesj.huang.0328@2mail.com Attorney for Plaintifl SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO $9:c frigid Motion for Class Certification 914419 i, CHIAHO WU, an individual, on behalf of Case No: 17-CIV -05 749 I those similarly situated, 3 L_ __ _> _ __ II II II I" "I" 7 10 Plaintiff 3 PLAINTIFFS’ NOTICE OF MOTION ) AND MOTION FOR CLASS ll . v. CERTIFICATION; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT 12 THEREOF OFFICER “A. WONG”, a.k.a. “ID. No. , l3 0027”, individually and as a law enforcement ) Case Filed: December 15, 2017 officer in the San Bruno Police Department; ell-:5 14 JOSE BENDOLA, an employee of ACTION 1T3?te‘_ Mamh 27, 2°18 . . . ime. 9.00 am 15 TOWING, a Cahfomia corporation, d.b.a., San Dept: Law and Motion Ila Bruno Auto Center; l6 DENNIS PERRY, an employee of ACTION Pursuant to CCP § 382; C-R-C- 3-764 neg; TOWING; 17 “DRIVER 62”, an employee of COURTESY TOW, a California corporation; 18 POLICE CHIEF ED BARBERINI, 19 individually and as Chief of Police of the San Bruno Police Department; 20 SAN BRUNO POLICE DEPARTMENT, a public entity; 21 CITY OF SAN BRUNO, a municipal entity; 22 and, DOES 1—25, inclusive, 23 Defendants 24 25 26 27 28 Plaintiff s Motion for Class Certification _1_ TO THE COURT AND DEFENDAN TS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 27, 2018 at 9:00 am in the Law and Motion Department of the above-entitled Court located at 400 County Center, Redwood City, CA 94063, Plaintiff Chiaho Wu will move this Court for an order certifying the instant action to proceed as a class action pursuant to California Code of Civil Procedure § 382. The Motion is based on the following grounds: (1) The proposed class is ascertainable; (2) The proposed class is sufficiently numerous to warrant prosecution as a class action; 10 (3) The proposed class members have an adequate community of interest to warrant ll prosecution as a class action; 12 (4) The claims of the class representative plaintiff are typical of the claims of the 13 other class members; 14 (5) Both the representative plaintiff and his counsel are adequate for the purposes of 15 class certification; and 16 (6) There are factual and legal issues that are common to the class as a whole and/or 17 the specified subclasses, sufficient in importance so that their adjudication on a 18 class basis is a superior means of proceeding in this instance both for the litigants 19 and the Court. 20 California Rules of Court, rule 3.1308. A tentative ruling on a law and motion matter may be 21 obtained by telephoning (650) 261-5019 after 3:00 pm on the first court date immediately 22 preceding the hearing on the motion or by accessing the court’s website at: 23 http://www.sanmateocourt.org/directorphp?filename=/lamnotion/alltemules/php. 24 California Rules of Court, rule 3.1308(a)(1). Parties intending to appear on the matter shall 25 notify the Law and Motion Department or the department hearing the case and state their intent 26 to appear. Parties shall follow the instruction as directed on the telephone Tentative Ruling 27 notification message or on the Court’s website. 28 Plaintiffs Motion for Class Certification _2_ The Motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities and the attached Declaration, as well as the exhibits attached thereto, the Court’s file in this matter, and such further evidence and argument as may be heard by the Court. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff 5 Motion for Class Certification _3_ TABLE OF AUTHORITIES Cases Brewster v. Beck, No. 15-55479 (June 21, 2017, 9th Cir.) ............................................................. 5 Brinker Restaurant Corp. v. Superior Court (2012), 139 Cal.Rptr.3d 315 .................................. 14 Bufil v. Dollar Financial Group, Inc. (2008), 162 Cal.App.4th 1193 .......................................... 16 Classen v. Weller (1983), 145 Cap.App.3d 27 ............................................................................. 18 Hebbard v. Colgrov (1972) 28 Ca1.App. 3d 1017 ........................................................................ 17 ' McGhee v. Bank ofAmerica (1976), 60 Cal.App.3d 442 .................................. ........................... 18 Richmond v. Dart (1981), 29 Ca1.3d 462 ...................................................................................... 18 10 Sav—On Drug Stores, Inc. v. Superior Court (2000), 34 Cal.4th 319 ............................................ 15 ll Tyson Foods, Inc. v. Bouaphakeo et al., 577 U.S.___ (2016) ........................................................ 16 12 Statutes 13 California Business and Professions Code §§ 17200 et seq. .......................................................... 7 14 California Vehicle Code § 22852 .......................................................................................... passim 15 16 California and U.S. Constitutional Provisions 17 California Constitution, Art. I, § VII .............................................................................................. 7 18 California Constitution, Art. I, § XVII ........................................................................................... 7 19 U.S. Constitution, Amend. V .......................................................................................................... 7 20 U.S. Constitution, Amend. VIII ...................................................................................................... 7 21 U.S. Constitution, Amend. XIV, § I ............................................................................................... 7 22 23 24 25 26 27 28 Plaintiff 3 Motion for Class Certification _4_ Plaintiff hereby moves for class certification based on the following: I. INTRODUCTION Plaintiff, on behalf of others similarly situated, brings this action as a result of Defendants’, including the City of San Bruno (“City”) and San Bruno Police Department ‘ (“SBPD”) and any affiliated parties therewith, long-standing violations of the motoring public’s California constitutional rights and Constitutional rights, California’s Unfair Competition Law, and the SBPD’s own failure to provide the required notices under the Vehicle Code. The Plaintiffs and the public’s vehicles have been subject to unconstitutional mandatory 1 30-day impounds by the City and SBPD, depriving them of at least their right against 10 unreasonable seizures, against deprivation of property without due process, and against the right ll to be free from excessive fines. Additionally, parties acting as agents of the City and SBPD, have 12 committed unfair, unlawful, and/or fraudulent acts that prejudice the public and the vehicle fl 13 enforcement scheme of the City and the SBPD. 14 Any police impound is justified “only to the extent that the government’s justification 15 holds force. Thereafter, the government must ceasethe seizure or secure a new justification.” 16 Brewster v. Beck, No. 15-55479 (June 21, 2017, 9th Cir.) at 7 (holding that a mandatory 30-day ' 17 violates the Fourth Amendment when the government does not present new circumstances 18 justifying the continued impound). Thus, the SBPD has, by way of statute or policy discretion, 19 violated Plaintiff’s right to be free from unreasonable seizures by outright imposing a 30-day 20 impound on Plaintiffs three (3) vehicles. See Verified Complaint 1H] 43 -5 1. 21 Additionally, the SBPD and City, and affiliated parties therewith, have deprived the 22 public of their right to due process and to be free from excessive fines under the Constitution and 23 the California Constitution by failing to provide the requisite poststorage notice under California 24 Vehicle Code section 22852(b) for vehicles impounded on public property. 25 II. FACTS AND ALLEGATIONS 26 A. Over A Decade of Dealings — SBPD and Towing Contractors 27 The San Bruno Police Department and the City of San Bruno have contracted with 28 several towing companies (“Contractors”) since at least July 1, 2006 until April 6, 2018 to Plaintiffs Motion for Class Certification n5_ provide official tow services for the City and the SBPD. Each of the towing companies signed an ‘Agreement For Official Police Tow Services’ (“OPTS”) on substantially similar terms and conditions. (See Verified Complaint Exhibits A & B; and Exhibits A, B & C attached hereto) For a period of at least 12 years, the City and SBPD have approved of and relied on the services of the Contractors for citywide Vehicle Code enforcement and evidentiary seizures. According to the City, “[t]he public health, safety and welfare require that hazards to vehicle movement and traffic safety be removed from. the City streets as soon as it is possible.” (See Verified Complaint — Exhibit A, Sec. 8, “Any [p]olice tow shall not incur storage costs in excess of three (3) days”). Under the terms of OPTSs: (1) no financial consideration is furnished 10 to Contractors from the City or SBPD from Code enforcement actions, (2) the SBPD are named ll as insurance beneficiaries (See Verified Complaint Exhibit A, Sec. 19) , (3) any vehicle release 12 must be approved by the SBPD in writing (See Verified Complaint Exhibit A, Sec. 8), and (4) 13 Contractors are allowed to complete their own towing reports, or form CHP—l80, for the SBPD 14 to sign off before any tows (See Verified Complaint Exhibit A, Sec. 9B). The City and SBPD 15 have effectively delegated their duties and tasks under the Vehicle Code to Contractors, l6 rendering them state actors of the City and SBPD. 17 Since the City and SBPD do not have the needed expertise, skills, equipment, and/or 18 facilities to conduct mass towing and storage required of a vehicle enforcement scheme, there is 19 a public policy rationale for the City and SBPD to retain Contractors’ services. Likewise, 20 Contractors run for-profit businesses and require incentive to continue providing official towing 21 services. Since the terms of OPTSs do not provide compensation to Contractors under vehicle 22 enforcement actions, the only source of income to Contractors from vehicle enforcement 23 impounds would be on subsequent towing and storage fees, release fees, and any lien sales. 24 For purposes of this motion, since Contractors are not named defendants in the 25 underlying verified complaint filed December 15, 2017 and since Contractors performed the 26 following acts under contract or direction of the SBPD as its agents, the City and the SBPD shall 27 be the tentatively responsible parties for Contractors’ alleged acts or omissions alleged herein. 28 B. SBPD’s Illegal and Unconstitutional 30-Day Vehicle Impound Plaintiff 5 Motion for Class Certification _6_ To its Contractors’ benefit and to expand its officers’ code enforcement powers, the SBPD has adopted an internal practice or policy of imposing 30—day impounds to retain Contractors’ services, compounding storage fees for the Contractors to collect and aiding lien sales against vehicles whose owners who are unable to pay the Contractors’ towing and storage fees. (Verified Complaint Exhibit G, 1] 1; Verified Complaint Exhibit H, 1] 1; Verified Complaint Exhibit R, with ’30 DAY’ captioned). As of at least July 7, 2017, the towing fee per vehicle is $240.00, and the storage fee per diem is $75.00 in the City of San Bruno. (See Verified Complaint Exhibit T (“Master Fee Schedule”)). A mandatory 30-day impound amounts to at least $2,250.00 in storage fees and $2,490.00 in total fees per vehicle. 10 The California Vehicle Code explicitly provides for vehicle owners’ due process after 11 tows by giving them “the opportunity for a poststorage hearing to determine the validity of the 12 storage” under section 22852(a). Under Vehicle Code section 22852(b), whenever an authorized 13 member of a public agency directs the storage of a vehicle, 14 A notice of the storage shall be mailed or personally delivered to the registered and legal owners within 48 hours . . . and shall include all of the following information: 15 (1) The name, address, and telephone number of the agency providing the notice. 16 (2) The location of the place of storage and description of the vehicle, which shall if include, available, the name or make, the manufacturer, the license plate number, and 17 the mileage. (3) The authority and purpose for the removal of the vehicle. 18. (4) A statement that, in order to receive their poststorage hearing, the owners, or their agents, shall request the hearing in person, writing, or by telephone within 10 days of the 19 date appearing on the notice. 20 Contractors, the SBPD, and the City have failed to mail or deliver the required notices to 21 Plaintiff and those similarly situated under the above Vehicle Code subsections (l)—(4). 22 The mandatory 30—day impound practice or policy of the SBPD not only circumvents the 23 Vehicle Code by obviating the required poststorage notice, but also it requires Plaintiff and those 24 similarly situated to pay for a filll 30—day storage fees without any notice of such storage, nor any 25 opportunity to contest the storage before the 30—dav period. After the 30—day impound is over, 26 Plaintiff and those similarly situated receive a Notice of a Pending Lien sale for the full fee of 27 30-day’s storage or more (See Verified Complaint Exhibits N, O & P), (1) without knowledge 28 Plaintiff’ 5 Motion for Class Certification _7_ that their vehicles were previously towed and where they are stored, and (2) without opportunity to contest or resolve any issues before the impound period. This policy represents a systematic Due Process deprivation and an Excessive Fine abuse under the Fifth, Eighth, and Fourteenth Amendments. This policy fiirther violates California Constitution, Article 1, Sections 7 and 17, and implicates violations of California law. C. Contractors’ Systematic Intentional or Negligence Overcharging A number of individuals, including the owners, operators, employees, and/or agents of Contractors (“Contractor Agent(s)”) systematically, whether negligently or not, are overcharging or attempting to overcharge the Plaintiff and those similarly situated by: 10 (l) exceeding the City’s towing fee schedule, e.g., charging $240.00 per tow instead of ll $225.00 as defined by the City’s published Master Fee Schedule (Verified Complaint 12 Exhibit T); 13 (2) exceeding maximum fees for a 3-day impound set forth in the OPTSs (See Verified 14 Complaint Exhibits A & B, ; and 15 (3) charging for storage even in excess of the 30 days imposed by the SBPD. 16 Each of the above acts (1)—(3) represent an “unlawful, unfair, or fraudulent business act or 17 practice” under California Business and Professions Code sections 17200 et seq. Plaintiff has not 18 discerned the complete identities of all the Contractor Agent(s), and may amend this motion or 19 any relevant pleadings to include such parties, including any Contractors. 20 D. Current and Discoverable Evidence of 30—Day Impounds 21 In 2017, on consecutive days, July 6 and July 7, three (3) of Plaintiff’s vehicles were 22 impounded for mandatory 30-day periods, with two officers (Defendant Officer A. Wong and 23 Officer J. Brandenburg) directing these impounds (See Verified Complaint Exhibits C, D & R). 24 The Court may find that a 30-day impound practice or policy exists in the SBPD, by the fact that 25 two (2) of the SBPD’s officers coincidentally happened to exercise their individual discretion to 26 give 30-day impounds on three vehicles (3) on consecutive days. Accordingly, Plaintiff proposes 27 classes and subclasses based on this unconstitutional practice or policy. Additionally, evidence of 28 Plaintiffs Motion for Class Certification _8_ 30-day impounds and the identity of class members, can easily and readily discerned by the following steps: (1) Submitting Public Records Act requests to the City and SBPD to identify all police— initiated tows, Contractors and/or Contractor Agents, and the relevant span of their enforcement actions; (2) Serving third-party subpoenas on identified Contractors and/or Contractor Agents for business records of police tows during the relevant span, including any Notices of Pending Lien Sale (including any third—party lien companies and the DMV); (3) Opening discovery on the City and the SBPD for police records during the relevant 10 span; 11 (4) Identifying any documents specifically marked or indicating a 30—day impound; and 12 (5) Identifying any Notices of Pending Lien Sale with a storage period of 30 days or l3 longer, that do not have an accompanying poststorage notice for the same 14 enforcement action. 15 Steps (4) and (5) specifically identifies which police tows are 30—day impounds, while l6 steps (1)-(3) shows the complete documentary extent of the SBPD-Contractor enforcement 17 operations. 18 E. Current and Discoverable Evidence of Failure to Provide Poststorage Notice 19 According to the Declaration of Pat Sweeney (Sweeney Declaration in Support of Perry’s 20 Demurrer, 1] 4) and of Marty Eidsvik (Eidsvik Declaration in Support of Driver 62’s Demurrer, 1[ 21 4), at least two (2) third-party lien-service providers assert that they followed the appropriate 22 notice requirements of pending lien sales for Plaintiff 3 vehicles. The Court will find that 23 nowhere in the Declarations the fact that they provided to Plaintiff the required poststorage 24 notice under Vehicle Code section 22852(b). Plaintiff can also testify to his own lack of 25 poststorage notice. 26 The same steps above for 30-day impounds would be used to ascertain class members, 27 and the absence of poststorage notices in the Contractors’ and the lien-service providers’ 28 Plaintiff’s Motion for Class Certification _9_ business records, such as the nonexistence of poststorage notice mailings on any certificates of service. F. Current and Discoverable Evidence of Contractors’ Overcharging Plaintiff received Notices of Pending Lien Sale for all three (3) of his vehicles: (1) On the notice of lien sale for his Airstream, Contractor Action Towing attempted to charge Plaintiff $240.00 in towing fees ($15.00 above the $225 .00 Master Fee Schedule), and for storage between 07/06/2017 and 08/ 10/ 17, which is 36 days—6 days over the 30- day impound direction of the SBPD. (See Verified Complaint Exhibit N) Even under the specific (and unconstitutional) direction of the SBPD, Action Towing 10 attempted to overcharge Plaintiff for 6 day’s excess of the 30-day impound and an excess towing ll fee, totaling 25% for the release of his Airstream. 12 (2) On the notice of lien sale for his Utility Trailer, Contractor Courtesy Tow attempted to l3 charge Plaintiff $240.00 in towing fees ($15 .00 above the $225 .00 in the Master Fee), 14 and for storage between 07/07/2017 and 08/14/17, which is 38 days—8 days over the 30- 15 day impound direction of the SBPD. (See Verified Complaint Exhibit 0) 16 Even under the specific (and unconstitutional) direction of the SBPD, Action Towing 17 18 19 fee, totaling Exhibit P) w attempted to overcharge Plaintiff for 8 day’s excess of the 30-day impound and an excess towing for the release of Plaintiff’s Toyota Tundra. (See Verified Complaint 20 (3) On the notice of lien sale for his Toyota Tundra, Contractor Courtesy Tow attempted to 21 charge Plaintiff $240.00 in towing fees ($15 .00 above the $225.00 Master Fee Schedule), 22 and for storage between 07/07/2017 and 08/14/17, which is 39 days—9 days over the 30— 23 day impound direction of the SBPD. 24 Even under the specific (but unconstitutional) direction of the SBPD, Contractor 25 Courtesy Tow attempted to overcharge Plaintiff for 9 day’s excess of the 30—day impound and an 26 excess towing fee, totaling $840.00 for the release of his Toyota Tundra. 27 28 Plaintiffs Motion for Class Certification _ 10 _ (4) In total, Contractors have attempted to overcharge Plaintiff $1,920.00 for the release of his vehicles even under the unconstitutional 30—day impound practice of policy of the i SBPD. , (5) The above figures for Contractors’ overcharge may be increased by W per vehicle based on the lien sale preparation fee, since Contractors failed to provide Plaintiff notice of a poststorage hearing before mailing Plaintiff the Notice of Pending Lien Sale. The same steps above for 30-day impounds would be used to ascertain class members, and the overcharge attempts would be apparent from the face of any Notices of Pending Lien Sale when compared to the City’s fee schedule and any corresponding documented 30—day impounds. 10 III. PROPOSED IMPOUND AND NON-NOTICE CLASSES 11 Plaintiff seeks certification based on several subclasses that each reflect the nature of 12 claims and the respective class—wide practices or policies of Defendants City and SBPD, and/or 13 Contractors. Certain subclasses represent particularly vulnerable members, who have suffered a 14 higher relative harm by such practices and policies. As such, certain subclasses are intended to 15 vindicate the constitutional rights of those least capable of asserting them. 16 First, Plaintiff proposes that there are two overall classes: 17 (1) one for individuals whose vehicle on public property received a mandatory 30-day 18 impound, or a period in excess of 3 days, that lacked further justification beyond the third storage 19 day, which represents the time storage fees should have ended under the terms of the SBPD’s 20 own OPTSs, and 21 (2) one for individuals whose vehicle were impounded by the SBPD, and who failed to 22 receive the required poststorage notice under Vehicle Code section 22852(b). This class and its 23 respective subclasses may be applicable to or limited to Contractors upon proof that Contractors 24 breached a duty to the SBPD or the City, under contract or otherwise, by failing to provide such 25 poststorage notice. 26 Plaintiff further proposes additional subclasses, as described below: 27 A. Impound — Correctible Subclass 28 Plaintiff 5 Motion for Class Certification _ 11 _ A] \J ALL individuals Whose vehicle on public property received a mandatory 30—day impound, or a period in excess of 3 days, from the SBPD that lacked further justification beyond the third storage day, and whose reason for impound was correctible within the 30-day period. B. Impound — Property Damage and Property Disposition Subclass ALL individuals whose vehicle on public property received a mandatory 30-day impound from the SBPD, or a period in excess of 3 days, that lacked further justification beyond the third storage day, and whose vehicles and/or personal items therein were damaged, missing, and/or disposed of, such as by lien sale, while in the control or custody of the 10 Contractors and/or the SBPD. 11 C. Impound —— Payor Subclass 12 ALL individuals whose vehicle on public property received a mandatory 30-day impound 13 from the SBPD, or a period in excess of 3 days, that lacked fiirther justification beyond 14 the third storage day, and who paid any amount to Contractors and/or the SBPD for I 15 storage fees in excess of the fee amount required for 3 storage days. 16 D. Impound — Work Vehicle Subclass 17 ALL individuals whose vehicle on public property received a mandatory 30-day impound 18 from the SBPD, or a period in excess of 3 days, that lacked further justification beyond 19 the third storage day, and whose vehicle’s use was reasonably related, at the time of 20 impound, to generate income. 21. E. Impound — Residence Vehicle Subclass 22 ALL individuals whose vehicle on public property received a mandatory 30-day impound 23 from the SBPD, or a period in excess of 3 days, that lacked further justification beyond 24 the third storage day, and Whose vehicle was that individual’s primary residence at the 25 time of impound. 26 F. Impound — Indigent Subclass 27 ALL individuals whose vehicle on public property received a mandatory 30-day 28 impound, or a period in excess of 3 days, from the SBPD that lacked further justification Plaintiff” 5 Motion for Class Certification _ 12 _ a ~/ .__1 beyond the third storage day, and whose annual income is at or below any local, state, or federal measure, standard, or guideline for poverty. G. Non-notice — Correctible Subclass ALL individuals whose vehicle received an impound from the SBPD to whom mailing or delivery of a poststorage notice was not given by either the SBPD or the party to whom SBPD delegated giving such notice, and whose vehicle’s use was reasonably related, at the time of impound, to generate income, and whose reason for impound was correctible within the 30-day period. H. Non-notice — Property Damage and Property Disposition Subclass 10 ALL individuals whose vehicle received an impound from the SBPD to whom mailing or 11 delivery of a poststorage notice was not given by either the SBPD or the party to whom 12 SBPD delegated giving such notice, and whose vehicle’s use was reasonably related, at 13 the time of impound, to generate income, and whose vehicles and/or personal items 14 therein were damaged, missing, and/or disposed of, such as by lien sale, while in the 15 control or custody of the Contractors and/or the SBPD. 16 I. Non-notice — Payor Subclass '17 ALL individuals whose vehicle received an impound from the SBPD to whom mailing or 18 delivery of a poststorage notice was not given by either the SBPD or the party to whom 19 SBPD delegated giving such notice, and who paid any amount to the SBPD or 20 Contractors for the release of such vehicle. 21 J. N on—notice — Work Vehicle Subclass 22 ALL individuals whose vehicle received an impound from the SBPD to whom mailing or 23 delivery of a poststorage notice was not given by either the SBPD or the party to whom 24 SBPD delegated giving such notice, and whose vehicle’s use was reasonably related, at 25 the time of impound, to generate income. 26 K. N on—notice — Residence Vehicle Subclass 27 ALL individuals whose vehicle received an impound from the SBPD to whom mailing or 28 delivery of a poststorage notice was not given by either the SBPD or the party to whom Plaintiffs Motion for Class Certification _ 13 _ SBPD delegated giving such notice, and whose vehicle was that individual’s primary residence at the time of impound. L. Non-notice — Indigent Subclass ALL individuals whose vehicle received an impound from the SBPD to whom mailing or delivery of a poststorage notice was not given by either the SBPD or the party to whom SBPD delegated giving such notice, and whose annual income is at or below any local, state, or federal measure, standard, or guideline for poverty. IV. PROPOSED OVERCHARGE CLASSES Plaintiff seeks certification based on several classes that each reflect the nature of claims 10 and the respective class-wide practices or policies of Contractors. These classes assume that 11 - Contractors were acting in good faith, following the instruction of the SBPD to tow and store the 12 public’s vehicles for 30-days in order to comply with the terms of their respective OPTS l3 agreements, and any overcharge was due to inadvertence or neglect, and was not intentional or 14 otherwise malicious or oppressive. 15 Plaintiff proposes that there are three overall classes: 16 A. Tow Overcharge Class 17 ALL individuals whose vehicles received an impound directed by the SBPD, who were 18 charged a towing fee by Contractors in excess 'of fee limits prescribed by the City. 19 B. Prescribed Period Storage Overcharge Class - 20 ALL individuals whose vehicles received an impound directed by the SBPD, who were 21 charged a storage fee by Contractors in excess of the period, directly prescribed by the 22 SBPD, notwithstanding any OPTS fee limits. 23 C. Contractual Period Storage Overcharge Class 24 ALL individuals whose vehicles received an impound directed by the SBPD, who were 25 charged a storage fee by Contractors in excess of the period prescribed under the terms of 26 Contractors’ OPTS. 27 V. CLASS CERTIFICATION SHOULD BE GRANTED 28 Plaintiff’s Motion for Class Certification _ 14 _ “Class actions have been statutorily embraced by the Legislature whenever ‘the question [in a case] is one of common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court .. ..’” Brinker, 139 Cal.Rptr.3d at 327, (quoting CCP § 382). In order to prevail on a motion for class certification, “[t]he party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” Sav—On Drug Stores, Inc. v. Superior Court (2000), 34 Cal.4th 319, 326. The ‘community of interest’ requirement embodies three factors: (1) predominant common questions of law or fact; (2) class 10 representatives with claims or defenses typical of the class; and (3) class representatives who can 11 adequately represent the class” Id. at 326. 12 The ultimate question the element of predominance presents is whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so 13 numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. The answer hinges on whether the theory of 14 recovery advanced by the proponents of certification is, as an analytical manner, likely to 15 prove amenable to class treatment. A court must examine the allegations of the complaint and supporting declarations and consider whether the legal and factual issues they present 16 are such that their resolution in a single class proceeding would be both desirable and feasible. As a general rule if the defendant’s liability can be determined by facts common 17 to all members of the class, a class will be certified even if the members must individually prove their damages. 18 19 Brinker, 139 Cal.Rptr.3d at 327-28 (citations omitted). 20 In this case, Plaintiff challenges the legality and constitutionality of the City and the 21 SBPD’s practice or policy of imposing mandatory 30—day vehicle seizures, and the Contractors’ 22 (or responsible parties’) systematic failure to provide a poststorage hearing to owners whose 23 vehicles were subject to a police-directed impound. Plaintiff’s theories of liability are supported 24 by existing and discoverable documentary evidence. 25 Defendants have asked this Court to demurrer on Plaintiff’s Verified Complaint. 26 However, the Brinker Court made clear at the class certification stage, the trial court should not 27 wade into the merits of plaintiffs’ claims. “The certification question is essentially a procedural 28 one that does not ask whether an action is legally or factually meritorious.” Id. at 392 (citations Plaintiffs Motion for Class Certification _ 15 _ omitted). Therefore, “[a] class certification motion is not a license for a free—floating inquiry into the validity of the complaint’s allegations; rather, resolution of disputes over the merits of a case generally must be postponed under after class certification has been decided.” Id. In applying these standards to the present case, it is clear that Plaintiffs have satisfied all of the elements necessary for class certification because common issues predominate. A. The Class is Ascertainable Ascertainability is determined largely be examining the class definition, the size of the class, and the means available for identifying class members. See Bufil v. Dollar Financial Group, Inc. (2008), 162 Ca1.App.4th 1193, 1207. “Class members are ascertainable where they 10 may be readily identified without unreasonable expense or time by reference to official records.” ll Id. at 1206. Here, the proposed class and subclasses are ascertainable because the members have 12 been and will be identified through police reports, business records, and public documents 13 subject to disclosure. 14 V B. Numerosity is, Satisfied 15 The numerosity requirement is met if the class that joinder of all members would be 16 impracticable. CCP § 382. The City has given Plaintiff’s attorney on November 6, 2017, in 17 ' response to a Public Records Act request, 142 pages representing a ‘press log of all calls for 18 service’ for the period between June 25, 2017 and July 30, 2017, a 36-day period. Plaintiff’s 19 attorney has reviewed all 142 pages and has determined, based on the incident description in the 20 log, that there are approximately at least 56 tows performed by the SBPD. By the terms of the 21 OPTSs, the SBPD has continuously used Contractors since July 1, 2016 to the present, to 22 performits vehicle code enforcement towing and storage. 23 This represents a class of approximately 56 members, and approximately 1.56 tows per 24 day directed by the SBPD. The number of strictly vehicle code Violation tows during this period 25 is 46, or 1.28 tows per day. Commonsense extrapolation and elementary multiplication will show 26 that from the date of the earliest OPTS produced by the City under a Public Records Act request, 27 July 1, 2006, to the date the Complaint was filed, December 15, 2017, there were approximately: 28 (days of OPTSs in effect) x (tows/day) = 4185 x 1.56 = 6,529 tows. Plaintiff 5 Motion for Class Certification _ 16 _ Alternatively, assuming strictly vehicle code violation tows, there have been approximately, 4185 x 1.28 = 5 348 tows._See attached Declaration, 1] 6. This straightforward methodology does not necessarily constitute statistical or representative evidence where Plaintiff seeks “to introduce a representative sample to fill an evidentiary gap created by failure to keep adequate records.” Tyson Foods, Inc. v. Bouaphakeo et (11., 5 77 US. _, at 3 (2016). It is merely intended to show that: (1) there is a de minimis sufficient class size of 46 members over a limited period, (2) the City and SBPD can produce tens of thousands of pages of records to finalize the exact number, if requested under the Public Records Act, without burdening them to do so before the class certification stage, and (3) 10 it is more likely than not that the number of class members will dramatically increase from 46 ll upon additional document production from the City, the SBPD, and Contractors. 12 With minimally approximately 46 class members over a small period. After simple l3 extrapolating over the evidentiary span of the SBPD’s enforcement scheme involving the 14 Contractors, over 5,000 putative class members, with the total number to be finalized through 15 reports, records, and other documents, the proposed classes and subclasses are sufficiently 16 numerous. Joinder of all of these class members would be impracticable and a class—wide l7 proceeding is preference because this number is so large. See Hebbard v. Colgrov (1972), 28 l8 Ca1.App. 3d 1017, 1030 (finding no minimum number to meet numerosity prerequisite and 19 accepting a class as few as 28 members). This case satisfies the numerosity requirement. 20 C. Common Questions of Law and Fact Predominate 21 Common questions of law and fact predominate this case. Since at least July 1, 2006, the 22 SBPD has contracted with different Contractors for them to provide official tow services as part 23 'of the City’s vehicle code enforcement scheme. Plaintiff’s vehicles were towed by the SBPD, 24 through two Contractors, as enforcement actions. The following facts, or part thereof, from 25 Plaintiff will predominate for class members: 26 (1) Each of Plaintiff s 3 vehicles received mandatory 30-day impounds from 2 different 27 SBPD officers within 2 days. This is unlikely isolated coincidence—this is evidence 28 of the SBPD’s practice or policy. Plaintiff 3 Motion for Class Certification _ 17 _ (2) Plaintiff did not receive any poststorage notice as required under Vehicle Code section 22852(b) from the SBPD, the Citmr Contractors for any of his 3 vehicles. This is unlikely isolated coincidence—this is evidence of a consistent business practice. (3) Thereafter, Contractors attempted to charge Plaintiff towing fees beyond the City fee limits, attempted charge_to Plaintiff storage fees beyond the 30-days, and attempted to charge Plaintiff total fees beyond the limits set forth in their respective OPTS. This is unlikely coincidence—this is evidence of a consistent business practice. Furthermore, the predominant issues in the case center around: 10 (1) the constitutionality of the outright imposition of a mandatory 30—day seizure without ll continuing iustification for such seizure, l2 (2) the illegality and constitutionality of any continuing seizure without hayinggiven the l3 requisite posthearing notice under California law, and 14 (3) the overcharge of towing and storage fees by the SBPD’s Contractors. 15 The resolution of these issues is particularly amenable to class treatment since each issue l6 implicates uniform policies or practices applied among all class members, as demonstrated by 17 police reports and business records, which evidences the consistency of the underlying illegal 18 and unconstitutional practices or policies. 19 D. Plaintiff Satisfies the Typicality Requirement 20 Typicality requires only that the proposed class representative’s interests in the action 21 signification similar to those of other members of the proposed class. The proposed 22 representative’s claim need not be identical to the claims of other members of the class; it is 23 enough that the representative is similarly situated, so that he or she will have the motive to 24 litigate on behalf of all class members. See Classen v. Weller (1983), 145 Cap.App.3d 27, 46. 25 Here, typicality is met. Plaintiff is an individual whose vehicles were impounded for 30 days by 26 the SBPD, who did not receive a poststorage notice, and who Contractors attempted to 27 overcharge as part of their vehicle enforcement as state actors of the SBPD and the City. 28 E. Plaintiff and his Counsel are Adequate Class Representatives Plaintiffs Motion for Class Certification _ 18 _ \ Tlifilfiquiijmnfilfijlh‘dl BI; .Liiitii‘f: fiifilxfiajnd“ ad§411l’atb¥y?' 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