                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 17 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BRANDI GARRIS; et al.,                          No.    18-56574

                Plaintiffs-Appellants,          D.C. No.
                                                2:17-cv-01452-MWF-E
 v.

CITY OF LOS ANGELES; LOS ANGELES MEMORANDUM*
HOUSING AND COMMUNITY
INVESTMENT DEPARTMENT, FKA Los
Angeles Housing Department,

                Defendants-Appellees.

                  Appeal from the United States District Court
                      for the Central District of California
                 Michael W. Fitzgerald, District Judge, Presiding

                       Argued and Submitted March 2, 2020
                              Pasadena, California

Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,** District
Judge.

      The putative class action complaint in this case against the City of Los

Angeles and the Los Angeles Housing and Community Investment Department


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
(collectively, “the City”), alleges that a housing inspection ordinance (“the

Ordinance”) facially violates the Fourth Amendment.          The complaint seeks a

declaratory judgment that the Ordinance is unconstitutional, an injunction against its

enforcement, and restitution of fees and fines paid under the Ordinance. At the

outset of the litigation, the district court dismissed the restitution claims with

prejudice, without addressing the futility of amending the complaint. After the City

amended the Ordinance, the parties stipulated to dismissal of the remaining

injunctive and declaratory claims. Before the district court entered a final judgment,

the plaintiffs moved for reconsideration of the district court’s order dismissing their

restitution claims and sought leave to file a first amended complaint. The district

court denied the motions and entered a final judgment in favor of the City. We have

jurisdiction of the plaintiffs’ appeal from that judgment under 28 U.S.C. § 1291. We

affirm in part, vacate in part, and remand.

      1.     The district court did not err in dismissing the restitution claims, which

were based on plaintiffs’ facial attack on the Ordinance. Although the Ordinance

allows entry into a residence without a warrant with consent or upon exigent

circumstances, it stresses that in all cases the City must “secure lawful entry . . . ,

including but not limited to securing an inspection warrant pursuant to California

Code of Civil Procedure Sections 1822.50 through 1822.57.” L.A., Cal., Mun. Code

ch. XVI., art. 1, div. 6, § 161.601 (2000). Because entry upon obtaining a valid


                                          2
administrative warrant would not violate the Fourth Amendment, the Ordinance is

not facially invalid, as it is not “unconstitutional in all applications.” City of Los

Angeles v. Patel, 135 S. Ct. 2443, 2450-51 (2015).1 Nor do any provisions of the

Ordinance establish an administrative scheme authorizing systemic searches for

evidence of crimes in violation of the Fourth Amendment. See United States v.

Bulacan, 156 F.3d 963, 967 (9th Cir. 1998). The Ordinance gives no indication that

the law enforcement powers it gives inspectors permit such inspectors to hunt for

evidence of general criminal wrongdoing. Amendment of the complaint to reassert

a facial challenge to the Ordinance would therefore be futile. See Eminence Capital,

LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

      2.     The plaintiffs argue on appeal that they should have been granted leave

to amend to raise an as-applied challenge to the Ordinance. In dismissing the

restitution claims without leave to amend, the district court did not consider whether

any amendment would be futile. Although amendment to seek restitution for annual

fees—which all tenants must pay regardless of whether their residences are

searched—would be futile, we cannot conclude that a plaintiff who underwent an

unconstitutional search of his apartment could not assert a claim for restitution for


1
       Patel, which allowed a facial challenge to an ordinance involving inspection
of hotel records, is not to the contrary. Although those enforcing the ordinance at
issue in Patel were not precluded by the enactment from seeking warrants, the
ordinance made no provision for warrants, instead requiring hotel operators to allow
inspections of guest records under any circumstances. See 135 S. Ct. at 2448, 2451.

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any fines imposed in connection with that search, nor can we conclude that there is

no possibility of a claim for damages if the plaintiff objected to an inspection and

yet the inspection proceeded without a warrant. Because amendment must be

allowed with “extreme liberality” under Federal Rule of Civil Procedure 15(a), see

id. at 1051 (citation omitted), we remand to allow plaintiffs to propose a complaint

raising an as-applied challenge to the Ordinance. We express no opinion as to the

merits of such a challenge.

     AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Each party to bear its own costs.




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