[00:00:14] Speaker 03:
And we'll hear first from Ms.

[00:00:16] Speaker 03:
Ritter.

[00:00:18] Speaker 03:
You may proceed.

[00:00:19] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:00:21] Speaker 00:
My name is Ellie Ritter, and my co-counsel, Mary Trotter, and I are both Pepperdine Law students appearing on behalf of appellant Sandy Yulet.

[00:00:29] Speaker 00:
Before I begin, I'd like to reserve five minutes for my co-counsel, Ms.

[00:00:32] Speaker 00:
Trotter, to give her bottle.

[00:00:35] Speaker 00:
Thank you.

[00:00:37] Speaker 00:
At bottom, this case is about the City of San Diego's ongoing enforcement of the six-month rule, which is a local rule that requires RV park landlords to evict their tenants every six months without exception.

[00:00:51] Speaker 00:
The city has enforced this rule for decades in state court litigation and in other enforcement actions brought against local RV parks.

[00:00:59] Speaker 04:
Maybe we should talk about the elephant in the room here.

[00:01:03] Speaker 04:
Does it matter that the rule is not an ordinance that's currently in effect or has been in effect for any of the enforcement actions alleged?

[00:01:11] Speaker 00:
No, Your Honor, it doesn't.

[00:01:12] Speaker 00:
So the apparent repeal of the ordinance doesn't change the mootness conclusion here.

[00:01:18] Speaker 00:
And here's why.

[00:01:19] Speaker 00:
It is ordinarily true that the repeal of an ordinance can render a case moot.

[00:01:24] Speaker 00:
But as this court has even very recently explained in McDonald versus Lawson, that principle only holds where there is no possibility that the government will not continue to enforce the ordinance.

[00:01:36] Speaker 04:
Well, what about the perspective relief?

[00:01:37] Speaker 04:
Would you concede that the perspective relief is now off the table?

[00:01:42] Speaker 00:
No, Your Honor, it's not.

[00:01:43] Speaker 00:
And again, it's because of this ongoing enforcement of the ordinance and the fact that this enforcement of the ordinance has been repeated for decades and by Ms.

[00:01:53] Speaker 00:
Yulet's complaints allegations continues to occur to this day.

[00:01:57] Speaker 03:
I mean, it's an extraordinary situation because

[00:02:01] Speaker 03:
You know, apparently, for some period of time, they've enforced an ordinance that was repealed decades ago.

[00:02:07] Speaker 03:
And now that you've called them out on it, they—whoops, it doesn't—it's not actually on the books.

[00:02:14] Speaker 03:
Now that they've acknowledged that it's gone, it seems unlikely that they're going to have the temerity, after telling this court that it doesn't exist, to go ahead and enforce it.

[00:02:27] Speaker 00:
Well, Your Honor, it is quite perplexing that the city has enforced this ordinance for decades, despite the fact that it was apparently repealed 70 years ago.

[00:02:34] Speaker 00:
And the fact that the city has continued to enforce it during that time suggests that there's no clear indication that they're planning to stop.

[00:02:42] Speaker 00:
And the burden is on the city to show that, and it's a heavy burden to carry.

[00:02:46] Speaker 00:
The court has always held that the burden to show that that type of conduct won't be repeated is on the government.

[00:02:54] Speaker 00:
Is there any?

[00:02:56] Speaker 03:
suggestion or any indication that there may be some other source for a six-month rule that might be applicable other than this particular ordinance that had been invoked here?

[00:03:10] Speaker 00:
Sure, Your Honor.

[00:03:11] Speaker 00:
So there's no other clear rule or policy that's on the books, absent that ordinance.

[00:03:18] Speaker 00:
That we know of.

[00:03:20] Speaker 00:
That we know of, exactly.

[00:03:21] Speaker 00:
But the fact remains that the city's enforcing a policy.

[00:03:24] Speaker 00:
And regardless of whatever its source may be, this case isn't ultimately about the ordinance.

[00:03:30] Speaker 00:
That's what Ms.

[00:03:32] Speaker 00:
Hewlett had originally briefed, because that was all she knew about.

[00:03:37] Speaker 00:
The case ultimately is about the six-month rule, whatever its source may be, whatever law is on the books.

[00:03:42] Speaker 00:
And the fact that the city has continued to enforce that policy, that conduct, is itself enough to keep this case alive.

[00:03:50] Speaker 00:
So the case isn't moot, notwithstanding repeal.

[00:03:52] Speaker 04:
Which portion of the case?

[00:03:53] Speaker 04:
I guess, for example, there's a preemption claim.

[00:03:55] Speaker 04:
It's hard to imagine that there could be federal preemption of a nonexistent ordinance.

[00:04:00] Speaker 04:
Is there any damages claim related to the preemption claim?

[00:04:05] Speaker 00:
Yes, your honor.

[00:04:06] Speaker 00:
So first and foremost, there are damages claims for that.

[00:04:09] Speaker 00:
And also, I'll add as to the preemption point, it is in a sense correct that preemption might seem less apt of a fit now that we know that this case isn't really about an ordinance on the books, but rather about a policy.

[00:04:23] Speaker 00:
But there's nothing about preemption as a theoretical matter that prevents it from applying with equal force to a policy or practice.

[00:04:30] Speaker 00:
And the way that it would work is that the city's enforcement of this rule is still putting landlords in the type of impossible position that preemption is designed to prevent against or to remedy.

[00:04:40] Speaker 04:
So there are a couple of different claims, the reasonable accommodation and the disparate impact claims under the disabilities statutes.

[00:04:47] Speaker 04:
What are the allegations, and this is a motion to dismiss, so we're not looking past that to any record, what allegations are there that it's been enforced in any other circumstance other than the one presented with Ms.

[00:05:06] Speaker 04:
Hewlett?

[00:05:07] Speaker 00:
So, Your Honor, Ms.

[00:05:09] Speaker 00:
Hewlett's complaint in her operative complaint, which can be found where I'm referencing at 3ER 323, she gives a timeline of enforcement at Morena, which is another RV park besides Coastal where we have the enforcement letter, the permanent injunction that the city got against her former landlord there to permanently enforce the six-month rule.

[00:05:32] Speaker 00:
And those allegations at 3ER 323 detail years of enforcement at Morena.

[00:05:38] Speaker 00:
Yulet alleges that the city enforced it in 2009, 2010, 2011, all the way up through 2013.

[00:05:47] Speaker 04:
So what's the, I believe both of these statutes have some state of mind type requirements.

[00:05:54] Speaker 04:
I think particularly with respect to the reasonable accommodation, what's the best allegation you'd point to that the city knew that it was refusing a reasonable accommodation to Ms.

[00:06:06] Speaker 04:
Yulet?

[00:06:07] Speaker 00:
So also in Hewlett's third amended complaint at 3ER 326, Hewlett alleges that, quote, discovery is expected to show that Mr. Spears, who was Hewlett's former landlord's park manager, gave the city some of her tenant information.

[00:06:24] Speaker 00:
And then the next line is that from that information, the city knew or reasonably should have known of her disability and reasonable accommodation.

[00:06:31] Speaker 01:
Why do you expect that discovery would show that and where in the complaint

[00:06:38] Speaker 01:
Does it explain that?

[00:06:40] Speaker 00:
Sure.

[00:06:40] Speaker 00:
So two things.

[00:06:41] Speaker 00:
First, as far as other allegations to sort of support that claim that Yulet makes there, in the record, this can be found at 2ER77, Yulet got a letter from her former landlord that gave her an accommodation and it explicitly

[00:06:58] Speaker 00:
said that the accommodation was pursuant to the Americans with Disabilities Act.

[00:07:02] Speaker 00:
And Yulet alleges that that letter was placed in her tenant file.

[00:07:06] Speaker 00:
So when Yulet, in her complaint, alleges that her tenant information was given to the city, it's a reasonable inference that that information contained that letter.

[00:07:15] Speaker 03:
And she asked the landlord what the tenant information was.

[00:07:18] Speaker 03:
The landlord seemed cooperative, and that could have been obtained and put into the complaint.

[00:07:24] Speaker 00:
So Yulet doesn't specifically allege in her complaint whether her landlord told her what that tenant information said.

[00:07:32] Speaker 00:
But it is a reasonable inference from that allegation, coupled with this letter giving her a reasonable accommodation and the allegations that that was in her file, that the tenant information that was given to Yulet's landlord or from Yulet's landlord to the city contained that letter.

[00:07:49] Speaker 00:
To reiterate on that point, too, the pleading standard here at a motion to dismiss, especially for a pro se complaint, is a liberal standard.

[00:08:00] Speaker 00:
And reasonable inferences not only have to be drawn in the light most favorable to Hewlett, but also have to be drawn more liberally in general.

[00:08:11] Speaker 00:
And another point on that matter is that, as for that allegation.

[00:08:16] Speaker 03:
Something that could be clarified if she were given leave to replede?

[00:08:23] Speaker 00:
Absolutely, Your Honor.

[00:08:23] Speaker 00:
So that point is one that would be perfect for amendment of this complaint if you were given leave to amend.

[00:08:32] Speaker 00:
And there's also other facts about what's happening around this time.

[00:08:36] Speaker 00:
At the time that this tenant information was given to the city, Hewlett alleges that the city was going through a back and forth with her landlords about the tenants that were remaining there longer than six months in violation of the six month rule.

[00:08:51] Speaker 00:
Months after this tenant information was given to the city, the city immediately sent that 2017 enforcement letter that not only explicitly referenced the ordinance, but also told Hewlett's former landlord to take all legal means necessary to remove tenants who were violating the six-month rule.

[00:09:08] Speaker 04:
Is that a, how is that a refusal to reasonably accommodate if the city comes in and as alleged or as plausibly inferred tells the park that they need to evict the tenants?

[00:09:23] Speaker 00:
So the way that it amounts to a failure to accommodate is that the city is placing a categorical bar on all accommodations, and that itself is a failure to accommodate.

[00:09:34] Speaker 00:
The city is saying, landlords, you can't give any accommodations, which means that the landlords have to deny or revoke all the accommodations.

[00:09:43] Speaker 04:
I know councils sometimes don't love this question, but what's your best case for that?

[00:09:47] Speaker 00:
So the two best cases would be out of the Ninth Circuit McGarry versus City of Portland and also I think aptly Astralis out of the First Circuit.

[00:09:56] Speaker 00:
There in Astralis specifically it was a factual scenario very similar to this one where landlords were

[00:10:04] Speaker 00:
actually the ones being sued, but they had to plead preemption.

[00:10:08] Speaker 00:
They were forced to decline or revoke accommodations in light of a city ordinance.

[00:10:13] Speaker 00:
And the court there held essentially that the ordinance itself, by creating this categorical bar, amounted to a failure to accommodate.

[00:10:21] Speaker 00:
And with that, I'll reserve the rest of my time for rebuttal.

[00:10:24] Speaker 03:
Thank you, Your Honor.

[00:10:25] Speaker 03:
All right, thank you.

[00:10:28] Speaker 03:
We'll hear now from Mr. Krentz.

[00:10:42] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:10:43] Speaker 02:
Tyler Krentz on behalf of the City of San Diego.

[00:10:47] Speaker 02:
The Court should affirm the dismissal.

[00:10:49] Speaker 02:
Plaintiff draws a line between private business conduct and a city ordinance.

[00:10:53] Speaker 03:
Well, can we start with how is it remotely possible that the City of San Diego enforces a phantom ordinance which hasn't existed for decades

[00:11:04] Speaker 03:
and enforces it not only here, but we have evidence in the record, it's obtained judgments under a non-existent ordinance.

[00:11:13] Speaker 03:
How is this possible?

[00:11:14] Speaker 03:
How is it possible that your laws are apparently such a mess that you don't even know what they are?

[00:11:21] Speaker 02:
Sure.

[00:11:22] Speaker 02:
So two points of response, Your Honor.

[00:11:24] Speaker 02:
First, the practical response.

[00:11:26] Speaker 02:
This ordinance was an uncodified wartime ordinance that predates the city's municipal code.

[00:11:33] Speaker 02:
So before the city had a codified municipal code, which started in the 1950s, ordinances were simply put in historical ordinance books.

[00:11:41] Speaker 02:
And when the city adopted its municipal code, it then had a set of laws with legislative history that overruled and repealed any ordinance that conflicted with it.

[00:11:55] Speaker 02:
But there's a problem with any uncodified ordinance, because simply knowing that it's not in the current municipal code doesn't give you that final link.

[00:12:05] Speaker 02:
You have to look at the uncodified ordinance and then find out.

[00:12:08] Speaker 03:
Maybe it would have behooved the city, knowing that the problem you just described exists.

[00:12:14] Speaker 03:
Before you haul out one of these older ones, you'd better really make sure that it exists before you start

[00:12:23] Speaker 03:
putting the coercive power of the state against people based on something that doesn't exist.

[00:12:27] Speaker 02:
Well, that leads me to the second point, Your Honor, which is I think that the allegations in the complaint do not support the idea that the city has been wielding its course of power in any more than a single instance.

[00:12:38] Speaker 03:
We at least have the judgment from the prior case, and then we have the allegation and the complaint with respect to 2017 in this case.

[00:12:48] Speaker 03:
That's at least two data points, right?

[00:12:50] Speaker 02:
Really one, Your Honor, the stipulated judgment that was entered was specific to the coastal trailer villa property, a single location.

[00:12:58] Speaker 02:
And as the judicially noticeable documents show, there's prior litigation that made that particular location essentially a no man's land of legal requirements because it didn't fall under a mobile home park.

[00:13:10] Speaker 02:
It didn't fall under an RV park.

[00:13:12] Speaker 02:
The state laws that apply in this area as well then don't seem to apply.

[00:13:16] Speaker 02:
The city's municipal code has defined terms that didn't seem to apply.

[00:13:20] Speaker 02:
And so that one lawsuit, Your Honor, from 2000, I think, in some ways was seeking, I think, to clarify what applied.

[00:13:26] Speaker 03:
Why shouldn't we just vacate this whole thing and ship it back?

[00:13:30] Speaker 03:
Because I've never seen something like this where the facts and understanding of the case just completely changed on appeal.

[00:13:37] Speaker 03:
where the city comes in with a whole different approach.

[00:13:41] Speaker 03:
The district court had no idea about any of this.

[00:13:43] Speaker 03:
We're now being asked to sort of draw inferences on the fly.

[00:13:47] Speaker 03:
That's not our job.

[00:13:48] Speaker 03:
Maybe we'll just ship this all back, but district court can sort this all out and figure out what's really going on here.

[00:13:55] Speaker 03:
But I don't understand why we should do anything with this.

[00:13:59] Speaker 02:
Well, Your Honor, I think to the extent that this belated information prejudiced any party, it frankly prejudiced the city because this case was litigated on terms far more favorable to plaintiff and therefore the underlying judgment dismissing this case is still valid and plaintiff can't show any prejudice.

[00:14:19] Speaker 04:
Well, we're dealing here.

[00:14:21] Speaker 04:
Mr. Crens with a pro se still writes plaintiff who actually Pleaded out a pretty good complaint for pro se And of course it wasn't until the second round of briefing and the answer brief where the city brought this up so I guess

[00:14:41] Speaker 04:
Prejudice or not if you believe if the city's position is that this case has changed completely Whether to its prejudice or not Why is that not then a reason to go with Judge Collins suggestion that we send it back?

[00:14:55] Speaker 04:
So that everyone can find their footing including the district court who had none of this before them

[00:15:00] Speaker 02:
It would be an idle act, Your Honor.

[00:15:01] Speaker 02:
The case fails for the reasons already outlined by the district court.

[00:15:05] Speaker 02:
Even putting aside this in some ways, the other issues that the court has already acknowledged or asked questions about, for example, even though she was proceeding pro se, she never pled any facts to show the city knew or reasonably should have known about the reasonable accommodation.

[00:15:23] Speaker 04:
Well, where did that letter come from?

[00:15:24] Speaker 04:
Then what's the city doing with a letter that has a list of tenants that include her?

[00:15:32] Speaker 02:
Well, the letter, Your Honor, I want to separate out.

[00:15:35] Speaker 02:
The letter identifies five tenants, including her, but it doesn't talk about disability.

[00:15:40] Speaker 02:
It doesn't talk about reasonable accommodations.

[00:15:41] Speaker 04:
It simply notes that some tenants are overstaying the six-month policy, which- Well, what else would she have had to allege then to get to the point of discovery where she and the court could get answers to these questions?

[00:15:56] Speaker 02:
not to be pithy, Your Honor, but a fact.

[00:16:01] Speaker 02:
I think her allegation is the essence of the threadbare recital of an element under Iqbal.

[00:16:06] Speaker 03:
Well, she says that the tenant file was given by the landlord, and she says that the tenant file contained information that she was given an accommodation.

[00:16:18] Speaker 03:
So from those two facts, she says a plausible inference can be drawn that the city was aware

[00:16:24] Speaker 03:
of the accommodation and therefore the disability.

[00:16:27] Speaker 03:
Why isn't that a plausible inference under Iqbal?

[00:16:30] Speaker 02:
Well, the letter, Your Honor, that you're referencing, or that my friend referenced, comes not from the third amended complaint, but from a different part of the record where there was earlier briefing.

[00:16:41] Speaker 02:
It's not a factual allegation.

[00:16:43] Speaker 03:
But that could be fixed by amendment, right?

[00:16:46] Speaker 02:
Well, plaintiff hasn't sought leave to amend as part of this appeal, and the district court already granted leave to amend.

[00:16:52] Speaker 03:
I mean, this is a pro se.

[00:16:54] Speaker 03:
the case has become something of a mess and maybe an opportunity to fix it.

[00:17:00] Speaker 03:
I mean, the other thing is maybe she could add a due process claim because it seems to me to violate due process for the city to enforce an ordinance that doesn't exist.

[00:17:09] Speaker 03:
That seems sort of fundamental.

[00:17:11] Speaker 03:
Maybe that would get added.

[00:17:13] Speaker 03:
So I'm not sure that the fact that the pro se didn't technically ask for amendment is really controlling here.

[00:17:21] Speaker 02:
Well, not the pro se, Your Honor.

[00:17:23] Speaker 02:
I'm saying the briefing on appeal hasn't made an argument that leave to amend should have been granted.

[00:17:26] Speaker 04:
The reply brief?

[00:17:27] Speaker 03:
The opening brief certainly couldn't do that because they didn't know the whole case was going to get changed.

[00:17:32] Speaker 02:
Well, then I think just focusing on the trial court, Your Honor, the district court already granted three opportunities for leave to amend.

[00:17:38] Speaker 02:
And so at that point, the district court's discretion becomes particularly broad, in the words of this court, in deciding whether or not further leave to amend should have been granted.

[00:17:47] Speaker 02:
And the court, multiple times,

[00:17:49] Speaker 02:
in its orders, advised plaintiff, even though she was proceeding pro se, that this key fact needed to be in the complaint.

[00:17:55] Speaker 02:
And so at the third time, I think it's fair to say that she still had not been able to do it.

[00:18:00] Speaker 04:
I guess I'm trying to figure out again how she gets that additional information when she's dealing with a government that doesn't even know what its own law is.

[00:18:10] Speaker 04:
Is she supposed to, you know, there may or may not be a paper trail, but typically we,

[00:18:17] Speaker 04:
Don't expect litigants to engage in pre-complaint discovery to try to figure that all out That's that's true.

[00:18:25] Speaker 02:
Although of course, there's Public Records Act would mean that she could have requested any of that information from the city and

[00:18:29] Speaker 04:
Well, why would that include, I mean, I think the inference here is that if they were, if the trailer park had incentives to have further support and paint the city as the bad guy here in terms of, you know, those discussions aren't likely to necessarily be recorded.

[00:18:49] Speaker 04:
She's provided ample evidence in terms of the past enforcement history of that.

[00:18:55] Speaker 04:
Why is that enough even just as to one park?

[00:18:59] Speaker 02:
Well, I think this goes back to the beginning of the argument, but I need to push back on some of the premises of these questions.

[00:19:05] Speaker 02:
There is no ample enforcement history here.

[00:19:07] Speaker 02:
There is a single stipulated judgment from the year 2000 that reimposed specific requirements as to this one property, which is now closed for closing any prospective relief, and then a 2017 letter that is, in effect, no longer really enforcing this prior ordinance, but is now enforcing this stipulated judgment.

[00:19:28] Speaker 02:
So there's no other than those two instances, which is really one linked by essentially this new stipulated judgment, plaintiff has not alleged any other instances of enforcement at any other areas.

[00:19:41] Speaker 04:
Why wouldn't that be enough to find a refusal of a reasonable accommodation?

[00:19:47] Speaker 04:
If the city does it once and if we draw these inferences, why wouldn't that be enough to state a claim?

[00:19:54] Speaker 02:
Because, Your Honor, simply trying to enforce a generally applicable law, a six-month rule, without regard to someone's disability, in other words, if they haven't requested the accommodation... Well, that goes back to the knowledge question, but let's keep those separate.

[00:20:07] Speaker 04:
You're also saying that it's not enough that there's just been one instance of enforcement.

[00:20:12] Speaker 02:
I'm just pointing out, Your Honor, that I think Your Honor's question had asked essentially, why shouldn't she be able to get a break because of the city's repeated enforcement?

[00:20:24] Speaker 02:
And I need to push back on that premise of repeated enforcement.

[00:20:27] Speaker 02:
But why should she not get a break?

[00:20:28] Speaker 02:
I can answer more directly as well.

[00:20:30] Speaker 02:
In addition to having multiple opportunities for leave to amend, she also could have, and any of those opportunities for leave to amend, simply allege that the tenant information included a reasonable her disability status.

[00:20:41] Speaker 02:
or at any point she could have directly communicated with the city and told the city I would like to request a reasonable accommodation because under the city's current municipal code that was started into that this was an amendment was put in place in 2005 the municipal code allows for reasonable accommodations from plaintiffs and so that and that that may be kind of

[00:21:01] Speaker 04:
Legally a tricky question.

[00:21:03] Speaker 04:
What's your argument that she was required to request after she'd received an accommodation?

[00:21:09] Speaker 04:
Allegedly from her landlord that she was required then to separately know about and request from the city a reasonable accommodation from the six-month rule

[00:21:19] Speaker 02:
Well, because because her landlord was was changing.

[00:21:22] Speaker 02:
So the the allegations on I think it's pages.

[00:21:26] Speaker 02:
I think it's 323 and 324 talk about this pattern where she's changing park RV parks based on these six month rule that the private parks have imposed.

[00:21:36] Speaker 02:
and then she's changing also the ownership.

[00:21:39] Speaker 02:
So at Coastal Trailer Villa, she had gotten a reasonable accommodation request, but then the ownership changed, and it seemed as if the new ownership took a more aggressive stance in denying the reasonable accommodations.

[00:21:50] Speaker 02:
So at that point, Your Honor, once her park ownership has now denied reasonable accommodations, it would make sense, especially if they're telling her the good cause for eviction is you violated the stipulated judgment for her to go get safe harbor from the city.

[00:22:02] Speaker 02:
Or to go back to the landlord when they've denied the request and say, why are you denying the request or what's the basis for it?

[00:22:10] Speaker 02:
And then go to the city if she thinks it's a city order.

[00:22:12] Speaker 04:
But if the city is the cause of the failure to accommodate all along, why would the change in ownership require to re-up her request?

[00:22:20] Speaker 02:
Well, the city's not the cause I think because that goes back to the fact that the city's not the season forcing the stipulated judgment But of course the stipulated judgment is still subject to the FHA the ADA and the reasonable accommodation process You know at the time the city was entering into the stipulated judgment back in 2000.

[00:22:36] Speaker 02:
Miss Hewlett was not living at the property She had not entered into this picture.

[00:22:40] Speaker 02:
So it's impossible for the city's actions to

[00:22:44] Speaker 02:
a decade before she ever became a tenant to have discriminated or erected a systemic barrier of any kind against Mrs. Hewlett.

[00:22:54] Speaker 02:
I think on that point about enforcement, I want to point out, I've made a couple strong declarative statements here today saying this has only been enforced at one location, effectively one time through this stipulated judgment.

[00:23:06] Speaker 02:
And I want to point out where I'm getting that information from.

[00:23:10] Speaker 02:
So specifically, defendant in her own allegations at page 336 alleges that the city omits performing the act of enforcing the six month rule on Santa Fe RV Park

[00:23:23] Speaker 02:
and Morena Mobile Village or MMV RV park occupants when CTV Coastal Trailer Villa RV occupants were held to the letter of the law.

[00:23:32] Speaker 02:
So plaintiff's own factual allegations shows the city is treating Coastal Trailer Villa one way and Morena Mobile Village a different way.

[00:23:40] Speaker 02:
And that's critical because it establishes why I think the record of enforcement that's actually in the allegations in the complaint does not establish a repeated instances of the city flagrantly enforcing or exercising its power against multiple areas.

[00:23:57] Speaker 02:
And on 323 as well, the park manager, she's 11.

[00:24:01] Speaker 04:
Does this go to both the reasonable accommodation and the disparate impact claims or just the disparate impact claim?

[00:24:06] Speaker 02:
I think it primarily goes to disparate impact, Your Honor, because disparate impact, as this court explained recently, and I think it's pronounced pion or P-A-Y-A-N, a disparate impact claim is essentially a group claim.

[00:24:17] Speaker 02:
It's where systemic barriers or a longer policy have imposed a significant burden on a disabled population.

[00:24:24] Speaker 04:
Could that disparate impact occur in two parks?

[00:24:30] Speaker 02:
Not based on these facts, but theoretically.

[00:24:33] Speaker 02:
I think, Your Honor, the other point is, and this was what the court tried to, I think, separate out and pay on, the disparate impact claim requires a group.

[00:24:43] Speaker 02:
And here, we only have allegations about a single park and a single group of people.

[00:24:47] Speaker 04:
Well, but that's a group.

[00:24:48] Speaker 04:
So why could a disparate impact claim not apply to there are a dozen tenants and three quarters of them are disabled and all of the other tenants who have previously voluntarily agreed or not.

[00:25:04] Speaker 04:
Why would that not state a disparate impact claim even as to one park?

[00:25:08] Speaker 02:
Some of this creates a bit of a line drawing problem, Your Honor, but I don't think the Court, and I'll do my best to answer that question, but I don't think the Court actually has to answer it here.

[00:25:17] Speaker 02:
Her allegations are that five people were staying beyond the six-month time, but those five people were not all disabled.

[00:25:23] Speaker 02:
She appears to be the only one that is allegedly disabled, and so it's really a class of one, even though there's five names listed.

[00:25:32] Speaker 02:
then I think that, just to engage with Your Honors, what I would call a hypothetical, although maybe my friends disagree.

[00:25:40] Speaker 02:
I think there is a point where, even at one location, a large enough group, of course, could rise to the level of a disparate impact claim.

[00:25:48] Speaker 02:
But we don't have those facts here.

[00:25:50] Speaker 02:
Unless the Court has any other questions, the Court should affirm.

[00:25:53] Speaker 03:
All right.

[00:25:53] Speaker 03:
Thank you, Counsel.

[00:25:54] Speaker 02:
Thank you.

[00:25:56] Speaker 03:
We will hear now from Ms.

[00:25:59] Speaker 03:
Trotter, rebuttal.

[00:26:18] Speaker 05:
Good morning, Your Honors.

[00:26:21] Speaker 05:
Mary Trotter on rebuttal on behalf of Appellant Sandy Hewlett.

[00:26:25] Speaker 05:
I'd like to begin by addressing the city's assertion that the disabled tenants that were named in the 2017 enforcement letter were not known to be disabled.

[00:26:36] Speaker 05:
Hewlett alleges at 2ER97 that three of these tenants, including herself, were also disabled.

[00:26:43] Speaker 05:
Mark Joan Adelman and Robbie Robinson were also known to be disabled, and she had listed that.

[00:26:48] Speaker 05:
in her complaint with regards to turning to the accommodations code that you let that the city brings up for the first time on appeal.

[00:26:59] Speaker 05:
This appears to just be a merits based defense that the city is bringing up for the first time on appeal and there's just no way to a certain based on the text of the code that it in fact applies to you and her RV.

[00:27:14] Speaker 05:
It it's unclear if development applies to

[00:27:17] Speaker 05:
to recreational vehicles and it's our position that if this accommodations code was so easily and readily able to be used that you look probably would have gotten an accommodation from the city beforehand one of her many landlords would have known about it.

[00:27:33] Speaker 05:
It's not her duty when she is

[00:27:37] Speaker 05:
Her landlord is acting as a middleman Between her and the city and the city is the one telling her landlord that they need to enforce the six months rule six month rule So there's no the city has not met their burden that thing that you would has to actually go To the city in order to get this accommodation as the landlord Have to do that to state the claim Can you request an accommodation?

[00:28:00] Speaker 04:
I mean, so we're talking about

[00:28:02] Speaker 04:
There's the question of knowledge, which may or may not be separate from this question of what it takes to establish a refusal to accommodate.

[00:28:11] Speaker 04:
Um, if, uh, I think it's established, uh, Ms.

[00:28:15] Speaker 04:
Hewlett didn't ask the city, um, for an accommodation.

[00:28:18] Speaker 04:
Did the landlord have to ask the city for an accommodation?

[00:28:21] Speaker 05:
No, Your Honor, the city, the landlords would have known of this accommodations code if it was readily used and available.

[00:28:29] Speaker 05:
They apparently did not know about the code because they were writing accommodations for their tenants for Eulet specifically in pursuant to the Americans with Disabilities Act at 2ER77.

[00:28:42] Speaker 05:
In 2011, her coastal landlord gave her an accommodation that

[00:28:48] Speaker 05:
references the Americans with Disabilities Act.

[00:28:51] Speaker 05:
So if there was a code that they could have gotten an accommodation through the city, it's reasonable that they would have known about it or that the city would have told her landlords about it in 2017 when there was a back and forth between the city and her landlord, or that the city would have brought this at the district court at the proceedings below.

[00:29:13] Speaker 05:
Because it's brought it for the first time on appeal, there's just no way to assert that it actually applies.

[00:29:19] Speaker 05:
And then with regard to the notice requirement, the city asserts that the letter is not in the complaint, but it is attached to the complaint.

[00:29:29] Speaker 05:
And she references the 2017 letter at 3ER 327 at 161.

[00:29:37] Speaker 05:
Reference is that the the city sent this letter in 2017 and this letter was the reason that the that her landlord ended up evicting all of these tenants and on that same same matter of the lack of enforcement that the city is alleging the landlord there's no private RV landlord practice based on these allegations you let also alleges in her third amended complaint that

[00:30:05] Speaker 05:
her landlord's attorney told her attorney that was defending her unlawful detainer action in 2018 that they didn't really care about who was living in the RV park past six months.

[00:30:20] Speaker 05:
But for the city's enforcement, they would have let people live there past six months.

[00:30:25] Speaker 03:
Do you have any data points other than

[00:30:28] Speaker 03:
the 2000 judgment and the 2017 allegation that the six-month ordinance was being enforced against anyone because your opponent contends that's really one incident and then the complaint says it wasn't being enforced against the other parks so there really is nothing other than this essentially one thing and there isn't much of a practice.

[00:30:56] Speaker 03:
What's your response to that argument?

[00:30:58] Speaker 05:
Well, two points, your honor.

[00:31:00] Speaker 05:
They aren't one instance.

[00:31:02] Speaker 05:
There are two separate instances.

[00:31:04] Speaker 05:
There was a 2000 lawsuit that had a stipulated judgment and a permanent injunction, and then the city uses that in 2017 to point to their precedent.

[00:31:13] Speaker 05:
The purpose of a permanent injunction is that it has a permanent effect.

[00:31:17] Speaker 05:
There doesn't need to be more than.

[00:31:18] Speaker 05:
than that to show that it has this permanent effect and that landlords have to abide by it.

[00:31:24] Speaker 05:
And in terms of other enforcement, Yulet alleges, I see that my time is up if I could briefly answer.

[00:31:32] Speaker 03:
If you answer your question, you may proceed.

[00:31:35] Speaker 05:
She alleges that in 2009, 2010, 2011, and 2012 that her landlords at Marina were also enforcing the six-month rule.

[00:31:45] Speaker 03:
Is that in a specific paragraph in the complainer?

[00:31:48] Speaker 05:
Yes, it's at 3 er 323 and 3 er 324 and the city asserts that this isn't The city themselves enforcing it but you will its allegations is that it is and At this because this is a 12 v 6 motion We must accept those allegations as true at this time.

[00:32:09] Speaker 03:
All right

[00:32:10] Speaker 03:
Thank you.

[00:32:10] Speaker 03:
The case just argued be submitted.

[00:32:13] Speaker 03:
I want to thank counsel for both sides for your very helpful presentations.

[00:32:18] Speaker 03:
We very much appreciate your efforts in this case.