Pimentel_Welch vs City of LA[1]

8/12/2019 Pimentel_Welch vs City of LA[1]

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1 Donald G. Norris SBN 90000)dnorris@no:r:gallaw.com2 Douglas F. Galanter SBN 93740)g l n t e r n o r g ~ l l a w .com3 NORRIS ' GALANTER LLP523 West Sixth St., Suite 716

4 Los Angeles, CA 90014Telephone: 213.232.08555 Facsimile: 213.286.94996 Attorneys for Plaintiffs78910111213141516

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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

JESUS PIMENTEL, an individual;DAVID R. WELCH, an individual,and all persons similarly situated,

Plaintiffs,vs.

CITY OF LOS ANGELES,Defendant.

Case no.CLASS ACTION C 11PLAINT FORDAMAGES AND DECLARATORYAND INJUNCTIVE RELIEF FORVIOLATIONS OF THE EXCESSIVEFINES AND DUE PROCESSCLAUSES OF THE UNITEDSTATES AND CALIFORNIACONSTITUTIONS;DEMAND FOR JURY TRIAL

22 Plaintiffs Jesse Pimentel and David R. Welch, individually and on behalf23 of the class of similarly situated persons identified in this complaint, allege as24 follows:25 JURISDICTION AND VENUE26 1. This is a class action seeking damages and declaratory and injunctive27 relief for violations by the City ofLos Angeles of the Excessive Fines and Due28 Process Clauses of he United States Constitution and the analogous provisions

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Case 2:14-cv-01371-FMO-E Document 1 Filed 02/24/14 Page 1 of 16 Page ID #:1


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1 of the California Constitution arising from the City charging those who receive2 tickets for expired parking meters disproportionally excessive penalties.3 2. The action arises under 42 U.S.C. 1983. Jurisdiction is conferred4 upon this Court by 28 U.S.C. 1331 and 1343. Supplemental jurisdiction5 exists over plaintiffs' state law claims under 28 U.S.C. 1367.6 3. In July 2013 plaintiffs duly served claims against defendant under7 the appropriate California Government Code sections. Defendant failed to8 timely respond, so those claims were denied as a matter of law.9 4. Venue is proper under 28 U.S .C. 1391(b).10 PARTIES11 5. Plaintiffs Jesus Pimentel ( Pimentel) and David R. Welch12 ( Welch ) are individuals residing in the County ofLos Angeles. Both of them13 work in downtown Los Angeles.14 6. At all times herein mentioned defendant City ofLos Angeles15 ( City ) was and is a municipal corporation duly organized and existing under16 the laws of the State ofCalifornia.17 FACTS18 7 On the afternoon ofMay 29, 2013 plaintiff Pimentel parked his car19 on Eighth Street in downtown Los Angeles. Pimentel paid the parking meter2 where he parked a sum ofmoney he estimated would be sufficient to cover the21 time period that he intended to park. On information and belief at approximately22 3: 10 p.m. that same afternoon a City employee issued parking citation number23 4207863903 to Pimentel for an expired parking meter under section 88 .13(b) of24 the Los Angeles Municipal Code (the Code ) because the parking meter had25 expired. Under section 89.60 of the Code the initial penalty was set at $63.00.26 8. On or about June 21 , 2013 the City issued and then mailed to27 Pimentel a Notice ofDelinquent Parking Violation advising that the due date to28 pay the initial $63.00 penalty was July 5, 2013. Said Notice also warned that

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1 failure to pay the parking penalties by the due date will result in the City ofLos2 Angeles imposing increased penalties and the withholding ofyour vehicle3 registration by the Department ofMotor Vehicles. The Notice further advised4 that the City may also subject your vehicle to immobilization (booting) or5 impoundment (CVC 22651.7, 22651(i), or a civil judgment (CVC 40220) .6 9. Pimentel did not pay the initial $63.00 penalty by the July 5, 20137 due date. On information and belief the City then likely mailed another notice to8 Pimentel on a date unknown to plaintiffs assessing an additional 100% penalty,9 pursuant section 89.60 of the Code, so that the cumulative penalties increased to10 $126.00.11 10 Because Pimentel had not paid the $126.00, on or about August 23,12 2013 the City mailed Pimentel a Delinquent Status notice under section13 89.60(b) of the Code, which purported to impose an additional, third penalty of14 $28 under section 89.60(b) of the Code (although that section provides for an15 additional penalty of$26), increasing the total fine and penalty to $154.00.16 This notice further assessed an additional $21.00 collection fee on Pimentel,17 and advised that the total due was $175.00. The notice further advised that8 The Department o Motor Vehicles has been notified to withhold

19 registration o your annual vehicle registration pending resolution of the20 citations and that If you have delinquent citations, your vehicle may be21 seized. Finally, the notice advised that failure could subject Pimentel to22 further collection activity such as a civil judgment or an interception of your23 state tax refunds.4 11. Pimentel eventually paid the $175.00 total due to the Department5 ofMotor Vehicles in order to be able to register his car.

26 12. On the morning ofFebruary 25, 2013 plaintiffDavid R Welch27 parked his car in downtown Los Angeles. Welch paid the parking meter where28 he parked a sum ofmoney he estimated would be sufficient to cover the time

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1 period he intended to park. On information and belief at approximately 10:132 a.m. that same morning a City employee issued parking citation number3 4202676203 to Welch for an expired parking meter under section 88.13(b) of4 the Los Angeles Municipal Code (the Code ) because the parking meter had5 expired. As with the case of Pimentel, under section 89.60 of the Code the initial6 penalty was set at $63.00.7 13 On information and belief, within the following 30 days it is likely8 that the City issued and then mailed to Welch a Notice of Delinquent Parking9 Violation advising as to the due date to pay the ticket. Said Notice also warned10 that failure to pay the parking penalties by the due date will result in the City of11 Los Angeles imposing increased penalties and the withholding of your vehicle12 registration by the Department ofMotor Vehicles. The Notice further advised13 that the City may also subject your vehicle to immobilization (booting) or14 impoundment (CVC 22651.7, 22651(i), or a civil judgment (CVC 40220).15 14 Welch did not pay the initial $63.00 penalty by the due date. On16 information and belief the City then likely mailed another notice to Welch on a17 date unknown to plaintiffs, assessing, as occurred with Pimentel, an additional18 100% penalty, pursuant section 89.60 of the Code, so that the cumulative19 penalties increased to $126.00.20 15 Because Welch had not paid the $126.00, on or about May 23, 201321 2013 the City mailed Welch a Delinquent Status notice under section 89.60(b)22 of the Code (as it did as to Pimentel), which purported to impose an additional23 third penalty of$28 under section 89.60(b) of the Code (although that section24 provides for an additional penalty of $26), increasing the total fine and penalty25 to $154.00. This notice assessed an additional $21.00 collection fee on26 Welch, and advised that the total due was $175.00. The notice further advised27 that The Department o f Motor Vehicles bas been notified to withhold28 registration of your annual vehicle registration pending resolution of the

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1 citations and that If you have delinquent citations, your vehicle may be2 seized. Finally, the notice advised that failure could subject Pimentel to3 further collection activity such as a civil judgment or an interception ofyour4 state tax refunds.5 16. On or about July 30, 2013 Welch paid the $175.00 total due.6 7 . On information and belief the aforesaid penalties under section 89.607 of the Code were established by the City through its City Council within the last8 four years as part of a schedule of civil parking penalties (the Schedule). At9 that same time the penalties were established under section 89.60 for failing to10 pay a parking meter and for an expired parking meter.

18. On information and belief, the parking penalties set by the Schedule12 greatly exceed the amounts for penalties established by the City in prior years3 for the same parking violations, reflecting an approximate 50% increase. On

14 information and belief, the City was in substantial part improperly motivated to15 increase the amount ofparking penalties on the Schedule in order to increase its16 revenues and improve its fiscal situation in response the fallout from the 2008-17 2009 economic crisis.8 19. California Vehicle Code section 40203.5 subdivision (a) empowers

19 the governing body of a municipal entity to establish the schedule ofparking20 penalties for parking violations and late payment penalties. That provision2 further directs such governing bodies to standardize parking penalties with22 other parking ticket issuing agencies within the same county, to the extent23 possible. On information and belief, the City in its Schedule charges24 substantially higher penalties than many neighboring cities in Los Angeles25 County have charged during the relevant time period. For example, on26 information and belief, the City ofPasadena has charged $46.00 for an initial7 parking meter penalty and an additional $2 7.90 penalty for failure to timely pay

28 the initial penalty. The $73.90 Pasadena total is $52.10 less than the $126.005



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1 23 . A very substantial percentage of person who receive City expired2 parking meter tickets, many ofwhom live paycheck to paycheck if hey work at3 all, are financially unable to pay the $63.00 initial penalty, or the second $63.004 penalty, let alone the $175.00 total due amount that accompanies a City5 Delinquent Status notice.6 24. On information and belief, the city charges variable rates to purchase7 parking time at its parking meters depending on the meter's location or zone.8 But, on information and belief, even at the higher zone rates a person paying for9 meter parking can purchase six minutes of time for $.50, 18 minutes of time for

10 $1.50, 30 minutes of time for 3 .00, and an hour of time for 5 .00. Under those11 rates, a person receiving a City parking meter ticket for an expired meter who is12 less than six minutes over the purchased time could have avoided the ticket by13 paying an additional $.50, a person receiving a City parking meter ticket for an14 expired meter who is just under 18 minutes over the purchased time could have15 avoided the ticket by paying an additional $1.50, a person who receives a City16 parking meter ticket for an expired meter who is just under 30 minutes over the17 purchased time could have avoided the ticket by paying an additional $3.00, and18 a person receives a City parking meter ticket for an expired meter who is just19 under an hour over the purchased time could have avoided the ticket by paying2 and additional 5 .00. In most cases, the City's $65.00 initial penalty for an21 expired parking meter ticket bears no reasonable relationship to the culpability22 ofpersons who receive parking meter expiration tickets: the penalty is 13023 times the additional amount a person who is less than five minutes over the24 meter would have had to pay to avoid the ticket, over 43 times the additional25 amount a person who is less than 18 minutes over the meter would have had to26 pay to avoid the ticket, 21 times the additional amount a person who is less than27 30 minutes over the meter would have had to pay to avoid the ticket, and over28 12 times the additional amount a person who is less than 60 minutes over the

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1 meter would have had to pay to avoid the ticket. The second 100% 63.00 late2 payment effectively doubles the above multipliers .3 25. The parking meter expiration penalties are unreasonable and4 oppressive, and grossly disproportionate to the seriousness of the violation of the5 City ordinance barring parking at a meter beyond the time paid to park, and even6 as to those who receive tickets for parking at a meter without paying.7 Imposition of these penalties is particularly onerous as to and disproportionately8 affects low income or even average income workers in the Los Angeles area, as9 well as those low income persons who do not work, relative to those better off

10 financially, because they are not as well positioned to pay the penalties or the11 collection fees, and disproportionately suffer financial injury if they do pay12 them. Such persons also disproportionately suffer the inability to register a13 vehicle, vehicle impoundment or booting, the City reporting such persons to4 credit reporting bureaus, and the City's pursuit of civil judgments for failure to

15 pay.16 CLASS ACTION ALLEGATIONS17 26. This action is brought as a class action by the individual plaintiffs18 Jesus Pimentel and David R Welch, on behalfof themselves and on behalf of19 the class defined in this complaint, pursuant to Rule 23(a) and 23(b)(2) and (3)20 of he Federal Rules ofCivil Procedure.21 27. This class is defined as all persons who were assessed and/or paid the22 penalties under the Schedule for parking at an unpaid or expired meter described23 above. Excluded from the class are all employees, including, but not limited to,24 judges, magistrate judges, clerks and court staff and personnel, of the United25 States District Court, their spouses, and any minor children living in their26 households. Plaintiffs will seek to establish subclasses under Federal Rule of27 Civil Procedure 23 (c)( 5) if and when appropriate.28

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1 28. The proposed class meets the prerequisites ofFed. R Civ. P. 23.2 Rule 23(a) provides that a class action may be brought when the class is so3 numerous that joinder of all parties is impracticable, there are questions of law4 or fact common to the class, the claims or defenses of the representative parties5 are typical of the claims or defenses of the class, and the representative parties6 will fairly and adequately protect the interests of the class. This action is7 properly maintainable as a class action for the reasons set forth below.8 29. The exact numbers ofmembers of the class identified in the9 preceding paragraphs, for whose benefit this action is brought, are not presently

10 known but are so numerous that joinder of individual members in this action is11 impracticable. The exact number of class members can only be ascertained12 through discovery, because such information is in the exclusive control of City.13 However, on information and belief, and based on the nature of the14 activities alleged herein, plaintiffs reasonably believe that the proposed class15 would contain thousands if not tens of thousands ofmembers. The names and16 addresses of class members are readily obtainable from the City.17 30. There is a well-defined community of interest in the questions of18 law and fact with regard to the proposed classes. Questions of law and fact19 arising out of the City's conduct are common to all members of the class, and20 such common issues of law and fact predominate over any questions affecting21 only individual members of the class. Common issues of law and fact which are22 common to all members of all classes include: (a) Whether the parking penalties23 assessed by the City constitute an excessive fines under the United States and24 California constitutions; (b) whether the parking penalties assessed by the City25 violate rights to due process under the United States and California6 constitutions; (c) appropriate equitable relief; (d) whether the City should refund7 the unlawful portion of the payments it collected as damages or restitution;

28 payments it collected; (e) whether unpaid assessed penalties should be forgiven;9



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1 and (f) whether the City should be enjoined from further collection of said2 penalties and collection fees.34

31 . The class representative plaintiffs are asserting claims that aretypical of the claims of the members of the class they seek to represent, in that

5 they all have been assessed and/or have paid the unconstitutional parking6 penalties. There is no conflict between any class representative and other7 members of the class with respect to this action, and the class representative8 plaintiffs are not aware of any individualized defenses that may be raised by the9 City that impair each representative s ability to act on behalf of the class.10 Plaintiffs as representative parties, will fairly and adequately protect

the interests of the class by vigorously pursuing this suit through attorneys who12 are skilled and experienced in handling matters of this type. Plaintiffs13 understand and appreciate their duties to the class and are committed to14 vigorously protecting the rights of absent class members.15 32. By consistently assessing and insisting on payment of the unlawful16 penalties the City has acted on grounds generally applicable to the class, thereby17 making declaratory and injunctive relief appropriate with respect to the18 class as a whole. See Fed. R. Civ. P. 23(b)(2).19 3 3. Class certification is also appropriate under Fed. R Civ. P.20 23(b)(3). The questions of law or fact common to each member of the class21 predominate over any questions affecting only individual members. A class

action is superior to other available methods for a fair and efficient adjudication23 of the claims asserted herein given that, among other things: (i) significant24 economies of time, effort, and expense will inure to the benefit of the Court and5 the parties in litigating the common issues on a class-wide instead of a repetitive6 individual basis; (ii) the size ofmost class members individual damage claims

27 is too small to make individual litigation an economically viable alternative,28 such that few class members have any interest in individually pursuing

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and enforcement of these penalties constitute a violation of the prohibition in the2 Eighth Amendment to the United States Constitution of excessive fines, as3 incorporated in the Fourteenth Amendment.

37. As a direct result of said constitutional violations on the part of the5 City plaintiffs and members of the plaintiff class, and each of them, have been6 damaged, and are entitled to damages, including restitution of the amounts of7 any penalties and collection fees paid to the City.8 38. Plaintiffs and the members of the plaintiff class will suffer9 immediate and irreparable injury for which there is no adequate remedy at law if

10 the aforementioned penalties and policies to enforce them are allowed to

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continue. Plaintiffs and the class members seek injunctive relief, bothpreliminary and permanent, to stop the City unlawful conduct described above.

39. There is a real and actual controversy between the parties as towhether the parking meter penalties described above violate the Eighth and

15 Fourteenth Amendment s prohibition of excessive fines. Plaintiffs maintain that16 the penalties violate the excessive fines clause of the Eighth and Fourteenth7 Amendments, which the City disputes. This imposition of, and continued effort

18 to collect, these penalties constitutes a legal injury which is concrete and19 particularized. It is likely that these injuries will be fairly addressed by a20 favorable Court ruling. Plaintiffs and the members of the plaintiff class therefore2 seek declaratory relief in order to declare the penalty scheme unconstitutional,

and that they did not and do not owe and need not pay said penalties and23 attendant collection costs.2425262728

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SECOND CLAIM FORRELIEF2 FOR VIOLATION OF THE EXCESSIVE FINES PROVISION OF3 ARTICLE 1 SECTION 17 OF THE CALIFORNIA CONSTITUTION4 by individual plaintiffs and plaintiff class)5 40. Plaintiffs repeat and reallege and incorporate by reference each and6 every allegation in paragraphs 1 through 39, inclusive, of this complaint as if7 fully set forth herein.8 41. This claim for relief is brought under the California Constitution9 and under section 52.1 b) of the California Civil Code.

10 42. The dollar amount and enforcement ofthese penalties constitute a11 violation of the prohibition in the Article 1 Section 17 of the California12 Constitution against the imposition of excessive fines.13 43. As a direct result of said constitutional violations on the part of the14 City plaintiffs and members of the plaintiff class, and each of them, have been15 damaged, and are entitled to damages, including restitution of the amounts of16 any penalties and collection fees paid to the City.17 44. Plaintiffs and the members of the plaintiff class will suffer18 immediate and irreparable injury for which there is no adequate remedy at law if19 the aforementioned penalties and policies to enforce them are allowed to2 continue. Plaintiffs and the class members seek injunctive relief, both21 preliminary and permanent, to stop the City unlawful conduct described above.22 45. There is a real and actual controversy between the parties as to23 whether the parking meter penalties described above violate the prohibition in24 Article 1 Section 17 of the California Constitution against the imposition of25 excessive fines. This imposition of, and continued effort to collect, these26 penalties constitutes a legal injury which is concrete and particularized. t is27 likely that these injuries will be fairly addressed by a favorable Court ruling.28 Plaintiffs and the members of the plaintiff class therefore seek declaratory relief

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1 in order to declare the penalty scheme unconstitutional, and that they did not and2 do not owe and need not pay the penalties and attendant collection fees.3 THIRD CLAIM FORRELIEF UNDER 42 U.S.C. 1983 FOR4 VIOLATION OF THE RIGHT UNDER THE FOURTEENTH AMENDMENT5 OF THE UNITED STATES CONSTITUTION TO DUE PROCESS6 (by individual plaintiffs and plaintiff class)7 46. Plaintiffs repeat and reallege and incorporate by reference each and8 every allegation in paragraphs 1 through 39, inclusive, of this complaint as if9 fully set forth herein.

10 47. The Fourteenth Amendment to the United States Constitution,11 section 1 prohibits any State from depriving any person of life, liberty, or12 property, without due process of law. The City s excessive penalties scheme13 and their enforcement, as above alleged, have deprived the plaintiffs and the14 class members of property in violation of due process.15 48. As a direct result of such violation of due process plaintiffs and16 the class members have been damaged. The plaintiffs and the class members are17 entitled to the recovery of damages, and appropriate injunctive and declaratory18 relief, as alleged above.19 FOURTH CLAIM FOR RELIEF FOR VIOLATION2 OF THE DUE PROCESS CLAUSE OF ARTICLE 1, SECTION 7(a)21 OF THE CALIFORNIA CONSTITUTION22 (by individual plaintiffs and plaintiff class)23 49. Plaintiffs repeat and reallege and incorporate by reference each and24 every allegation in paragraphs 1 through 45, inclusive, of this complaint as if25 fully set forth herein.26 50. Article 1, Section 7(a) of the California Constitution provides that a27 person may not be deprived of life, liberty, or property without due process of28 law. The City s excessive penalties scheme and their enforcement, as above

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1 alleged, have deprived the plaintiffs and the class members ofproperty in2 violation of due process.3 51. As a direct result of such violation ofdue process plaintiffs and4 the class members have been damaged. The plaintiffs and the class members are5 entitled to the recovery of damages, and appropriate injunctive and declaratory6 relief.789

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PRAYERWHEREFORE, plaintiffs pray for judgment against defendant, as follows:1 That the Court determine that the claims for reliefherein may bemaintained as a class action;2. For injunctive relief prohibiting defendant s unlawful penalty andpenalty enforcement practices;3. For declaratory relief;4. or damages and/or restitution, according to proof;5 For pre-judgment interest;6 For costs of the suit incurred herein, including attorney fees andother expenses pursuant to 42 U.S.C 1988 and California Code of CivilProcedure 1021 5 and/or California Civil Code 52.1 (h), as the casemay be; and7. For such other and further relief as the Court may deem just andproper.

23 Dated: February 21, 2014 NORRIS GALANTER LLP2425262728

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1 DEMAND FOR JURY TRIAL2 Plaintiffs request a trial by jury on all claims34 Dated: February 21 20145678910

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NORRIS GALANTER LLP\ttorneys for plaintiffs


Pimentel_Welch vs City of LA[1]

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