Recall that last week we learned that settlement talks in the Street Vendors lawsuit seemed to have fallen through, that the plaintiffs filed an amended complaint, and that the City of LA denies everything.¹ Well, today a couple more items² hit PACER, which are:

• Defendant City of L.A.’s Motion to Dismiss
• Defendant City of L.A.’s Motion to Strike — Wherein the City of L.A. asks the Court to drop some material from the Complaint because it’s irrelevant.

The motion to dismiss isn’t that different from the motion to dismiss that the City filed in May but then withdrew a few days later. It doesn’t seem plausible,³ and you can read it for yourself. The motion to strike is more interesting, and you can read about it after the break.

So evidently it’s allowed to ask the Court to remove stuff from a pleading under certain circumstances:

“The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”⁴ “Immaterial” or “impertinent” are defined to include matter which has no bearing on the controversy, and which could not be admitted into evidence.

OK, that makes sense, although I wonder why, if the material is actually irrelevant, it’s important to have it removed at all. Isn’t it kind of assumed that the judge will figure out (after hearing arguments) what’s irrelevant and then ignore it? It seems like a power play of some sort, like to force the judge to declare she’s more on this party’s side than that, but it’s possible, even likely, that I’m imagining this and there’s some serious reason for it.⁵ The gist of the City’s argument here is that street vending is illegal, so it’s irrelevant that the street vendors rely on their income from street vending to support their families:

This allegation cannot be a basis for recovery by the plaintiffs. Selling food products without a license is illegal in Los Angeles. L.A. Muni. Code § 42.00(b). The plaintiffs are no more capable of alleging lost income because their sales were prevented than could a ticket scalper, or a dealer of $10 bags of marijuana, or a human trafficker. All persons doing business illegally do so for the income; but allowing recovery for the fruits of the illegal activity is not appropriate in a civil lawsuit.

So they did make that argument: Selling sliced-up fruit is legally equivalent to dealing in child prostitutes so get out of court. And maybe they’re right. But maybe it’s more complicated than they’re making it out to be. After all, there is such a thing as a necessity defense, which covers things like breaking into people’s houses to take food in a blizzard in the mountains and so on.⁶ Maybe street vending is like that, and maybe if one breaks into houses to take food during a blizzard and could put on a necessity defense, one can recover in a civil lawsuit if someone steals away with the food that you took from the house? Maybe even if that someone is the City of freaking Los Angeles? I mean, I doubt that that’s right, but it might be right, which casts some doubt on the City’s argument here, at least in my mind. As always, stay tuned! Or you coult attend the hearing on these two motions your own self. It is presently scheduled for November 21, 2016 at 1:30 P.M. in Courtroom 14 of the Spring Street Federal Courthouse. Be there, be square, or be at work!

Image of the Fashion District is ©2016 MichaelKohlhaas.org.

1. Except that which they claim not to have sufficient information to deny.
2. Actually it was four items, but two of them were proposed orders, which usually aren’t that interesting, mostly saying stuff like “The Court, upon reading everything that the filing party wrote and marveling at its brilliance, has decided in its infinite wisdom not only to grant everything that was asked, but lots more stuff in addition that the filing party didn’t ask for because not only are they brilliant but they’re freaking modest too! If you want to read the proposed orders, they can be found here under today’s date, which is October 11, 2016.
3. And if it actually is plausible, why did the City spend the last five months in settlement talks?
4. I removed the footnotes. If you need the footnotes, look at the actual document.
5. Plus, as an over-involved fan of Erle Stanley Gardner’s novels, it just makes me unreasonably happy to read things like “redundant, immaterial, impertinent, or scandalous.” It makes me want to attend the hearing just to see who Perry Mason is gonna bring in as a witness to blow poor Hamilton Burger’s boat out of the water yet again.
6. I hope everyone will remember that not only am I not a lawyer, but I’m just making a lot of this stuff up to entertain myself and those two or three readers who make it this far down the page. You should in no way assume that any of my speculations are valid for any purposes whatsoever.